2nd Parliament · 2nd Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– I wish to know from the Prime Minister if he thinks it fair, at this stage of the. session, to place the consideration of three other measures before that of the Seat of Government Bill ; in other words, does he consider it right’ to defer the consideration of the measure until the last moment of the session? I should like to hear from him some reason for this extraordinary, step.
– I thought that the honorable member knew that this was to be done. On Saturday at least half-a-dozen members of one party and another spoke to me on the subject, and were in favour of the course which is now being proposed, since they were leaving Melbourne that evening, and would not return until late to-day, or because they wished to have time to read and considerthe report of the Minister’s speech on the motion for the second reading.
– This is news to me.
– The Government were urged not to proceed with the measure immediately, and I said that it would suit us to postpone its further consideration until after the three measures to which the honorable member has referred have been dealt with. Two of them should occupy practically no time, while the third - the Copyright Bill - should not keep us very long, because it is proposed to omit the contentious provisions which it contains. We can resume the consideration of the Seat of Government Bill this afternoon, when other honorable members have returned if we finish the business to which I have alluded.
– We shall not have finished it by to-morrow afternoon.
– I understood the Prime Minister to say that he would deal with the Seat of Government Bill immediately after the Copyright Bill had been disposed of.
– If honorable members consider the little Patents Bill-
– The “little” Patents Bill ! There are considerable objections to that measure. The honorable and learned member for Northern Melbourne entirely indorses the view which I take in regard to it.
– I think that the honorable and learned member will find that those objections can be removed. If not, the Bill will not be pressed at this time.
– Will the Prime Minister let us resume the consideration of the Seat of Government Bill this afternoon ?
– If we have finished With the Copyright Bill, from which we propose to omit the contentious provisions.
– A Bill that took the Senate a month.
– That is one reason why it should, not take us so long. It is a purely technical measure, entirely devoid of party significance.
– I do not suggest that it is a party measure, but I say that it is full of debatable provisions.
– I think that the honorable member will find, when he comes to examine it, that the questions involved are purely questions of detail, which we can dispose of this morning. I shall be only too happy to resume the consideration of the Seat of Government Bill as soon as possible, and to continue it as long as honorable members think fit-
– What does the Prime Minister mean by as soon as possible ?
– As soon as we have finished the Copyright Bill.
– Not before?
– In this morning’s newspapers, there is an account of the bursting of another cartridge at Castlemaine. It seems to me that the ammunition is not entirely at fault in these cases, and I ask the Vice-President of the Executive Council if he will’ request the Minister of Defence to see that in any further inquiry that is made, the condition of the rifles, as well as the composition of the ammunition, is looked into. In my opinion, the bursting may be due partly to want of care of the rifles. If rifles are neglected after cordite has been fired in them, and nickel-plated bullets are used, they are far more apt to choke, and thus cause an explosion, than was the case with the old rifles, in which the twist of the bore was not so great, and which were not corroded by the black powder used in them, while the missile was a soft leaden bullet.
– The Minister of Defence made ah inquiry into this matter, a month or two ago, on the first occasion of the bursting of a rifle, and it was confidently hoped that there would not be a recurrence of these accidents. The Department view this matter very seriously.
– Should we not have an ammunition factory of our own ?
– That is a matter which I do not wish to discuss just now. The further inquiry that is to be made will be n.s searching as even the honorable member for Moreton would desire.
– Will the Minister lay on the table a copy of any report which has been received in connexion with the previous inquiry?
– T think the report was published in the newspapers, but there is no objection to making it a parliamentary paper.
Mr. DUGALD THOMSON (North Sydney). ‘ - I wish to make a personal explanation in connexion with a paragraph appearing in this morning’s newspapers about the payment of expenses to two senators, one of whom, in the last recess, visited New Guinea, and the other Northern Queensland. My name is mentioned in the paragraph, and the implication is, made by one newspaper, at any rate, that the Cabinet minute which guided us in sanctioning the expenditure had been strained to some extent. Both the late Treasurer and myself were against the system of the payment of these expenses, and would have declined to authorize it, had we seen our way to do so; but the Cabinet minute on the subject states that members travelling on Commonwealth business shall receive such expenses, and we found that the two gentlemen whose cases have been specially singled out for remark were entitled by all precedents to be paid their expenses. A number of honorable members visited Queensland, and another party visited Western Australia., and had their expenses paid.
– Thenmeans of conveyance. That is all that was paid in any case.
– The only means of getting to Western Australia is by sea.
– The members to whom I have referred could not have made the whole of their journeys by railways. One went to Northern Queensland to make inquiries relating to the sugar industry, which was the object of the parliamentary party which went there, while the other visited’ New Guinea, to inquire into matters of Commonwealth concern, and furnished a valuable report on his return. But, although Senator Staniforth’ Smith went to New Guinea via the South Sea Islands, and incurred an expenditure of between £200 and ^300, he asked the reimbursement of his expenses only from Samarai to the gold-fields, and back to Australia, and received only between £20 and ^30. In my opinion, there should be a definite understanding, in this matter, because, in the present position of affairs, questions arise which it is very difficult to satisfactorily settle. The late Treasurer and myself, however, felt that, following precedents and the Cabinet minute on the subject, we were bound to sanction these payments, and I take the fullest responsibility for whatwas done.
– Can the PrimeMinister say definitely when the prorogation will take place? A number of honorable members are unable to complete their arrangements for the removal of their families from Melbourne until they know what date is fixed?
– The date of the prorogation depends on the progress of business, but Ihave every reason to hope that we shall be able to prorogue by Thursday.
asked the Minister of Home Affairs, upon notice -
When will the amounts due to the New South Wales officers, as increments for the past seventeen months, which have been sustained on appeal, be paid to the several officers?
– The Treasurer has issued instructions for the immediate payment of increments under the classification, and those which have been sustained on appeal.
Debate resumed from 7th November (vide page 4655), on motion by Mr. Groom -
That the Bill be now read a second time.
-I regret that, owing to the long sittings during the last two or three weeks, I have not had am opportunity to give this Bill the consideration which it merits.
– May I, at the commencement of this sitting, call the attention of honorable members to the fact that it is grossly unfair to the honorable member addressing the House to carry on conversations in a loud tone of voice. I would ask those who wish to converse either to go outside for that purpose, or else to do so in such low tones that honorable members who desire to follow the debate will not be prevented from doing so.
– In this Bill an attempt is being made to amalgamate the laws of six States into something like a harmonious whole. The fact that the measure has been discussed at some length in another Chamber is not sufficient in itself to enable me to form any conclusion with regard to it. So far as I have been able to gather from a glance at the Bill, the laws of the States have been partly embodied and partly discarded, whilst new provisions have been adopted, which are at variance with international law. I see great difficulty in dealing with this very complicated question at the close of the session, and I had hoped that the Minister would consent to allow the Bill to remain over until next session. The public now know where they are under the States laws, but it is proposed to hurriedly bring into operation 3 measure which will alter the whole of the conditions affecting copyright in Australia. It is urged that we shall be able under the Bill to take advantage of international copyright law, but any benefit that may accrue in that direction will not compensate for the injury that may be inflicted upon individuals by passing a measure without full discussion. If this Bill had been introduced at the beginning of the session, its consideration would have occupied at least a month, and I fail to see why we should be asked to pass it without subjecting it to criticism, which, when not carried to extremes, is always in the interests of the public, and” affords one of the best safeguards against slovenly law-making. The Bill appears tome to foe framedupon two conflicting principles. When the Electoral Act was before us, I pointed out that it had been framed upon two conflicting principles, but I was laughed at for my pains. What has been the result? We have had to devote our attention during this session to no less than three Bills relating to matters which should have been effectively dealt with in the original measure. I refer to the Electoral Act Amendment Bill, the Representation Bill, and the Census and Statistics Bill. If the original measure had been properly considered, these Bills would not have been necessary. I have no hesitation in saying that if we pass the measure now before us with undue haste, it will lead us into trouble. I would point out that, whereas in the case of the Electoral Act, our action resulted merely in depriving persons of rights, which, in many cases,. they had no special desire to exercise, we shall, by passing a faulty copyright law, deprive a number of people of their bread and butter. I understand that it is intended to strike out the provisions in the Bill relating to newspaper copyright.
– We intend to strike out clause 34.
– There can be no doubt that that clause contains a proposal to entirely alter the law of copyright as it exists in Great Britain, and although it is desirable that its consideration should be deferred, I would point out that no radical alteration such as is proposed can be made in the measure without affecting a number of other clauses. The Bill has been framed as a harmonious whole, and if we adopt the course proposed by the Government,
Ave shall considerably vary the incidence of copyright as dealt with in other parts of the Bill. I strongly protest against the measure being proceeded with under present circumstances.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 3 agreed to.
Clause 4 -
In this Act, unless the contrary intention appears - “Pirated book” means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book. . . .
– It seems to me that the definition of “ artistic work” is too wide. It includes -
Any painting, drawing, or sculpture; and any engraving, etching, print, lithograph, woodcut, photograph, or other work of art produced by any process, mechanical or otherwise, by which impressions or representations of works of art can be taken or multiplied.
It is proposed to give to owners of photographic work protection, which certainly is not possessed by them in any other part of the world.
– Quite right, too.
– I very much doubt whether it is right. To begin with, the law in every other country has been framed with a strict regard to the liberties of individuals. Photography is now so much in vogue that the ordinary touring amateur can produce very good work, and I think we should take care that we do not inflict injustice by adopting too wide an interpretation under this clause. Take, for instance, the case of the photograph of a famous picture. Would no one else have the right to photograph the picture? We have had no discussion or explanation, to make that clear, and we cannot foresee the difficulties that may arise.
– We are proposing merely to do what was provided for in the Bill approved of by the House of Lords.
– But it is now proposed to go further than that.
– No. The two provisions are practically the same.
– I thought they were widely different. I now come to the definition of the word “ book.”
– That is absolutely the same as the definition which was recommended by the House of Lords.
– Is a limitation imposed in the English Act?
– It is the same definition as that proposed in the Imperial Bill.
– We ought to allow the Bill to stand over until next session.
– I quite agree with the honorable member. I cannot conceive of any individual being injured as the result of delaying its passage. However, I feel that, in pointing out some of the difficulties which may hereafter arise, I have discharged my duty.
– The honorable and learned member for Werriwa has directed attention to the question of photographs. He has argued that under the Bill if a photographer took a picture of a celebrated painting, he could copyright it so that no other person would be able to take similar photographs. Photography is practically a new art, and I fail to see why an able and skilful man, who may expose himself to considerable danger in securing abeautiful photograph, should not be allowed to copyright it. The photograph is his own just as much as a painting is the property of the artist who creates it. I know of a case in which a photographer went down a mine and obtained a brilliant picture. The State Government has pirated that particular photograph, and has declined to allow him any compensation whatever. Under such circumstances, I claim that we ought to protect a photographer equally with any other artist.
Mr. McLean. The honorable member would not prevent another artist from taking a similar picture?
– We ought not to allow persons to take a copy of a brilliant picture without recognising the right of the owner. Consequently, I say that the clause should not be amended. I feel that his own sense of fairness would induce the honorable and learned member for Werriwa to admit that a photographer is as much entitled to protection, if he thinks it worth while to copyright a particular picture, as is the author of a book.
– The difficulty is that so much of the work of producing a photograph is truly mechanical. For instance, the use of a fine lens will assist a photographer in a way that nothing else will.
– My own experience is that success in photography can be obtained only by the . application of brain power. There is as much intelligence required in taking a photograph as there is in any other avocation.
– In this clause, I notice that - “ Pirated book,” means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book.
I thinkthe Minister will admit that it may happen that portions of a book are suitable for reproduction. There are numerous works from which sections might be taken and sold with very great advantage by the literary pirate. Apparently this definition would not prevent that. Under it, all that the pirate would need to do would be to omit one or two sentences, or a chapter, and he would then be able to sell any pirated book without hindrance.
– This definition is taken from the English Bill.
– I do not suppose that all the intelligence in the world reposes, in the mind of the British Parliamentary Draftsman. I think that the Minister ought to enlarge the definition by making a “pirated book “ mean a reproduction of a book, or any part! thereof. I, therefore, move -
That after the word “book,” line 5, the following words “or any part thereof “ be inserted.
– I do not think that the amendment is necessary, because if the honorable member will look at an earlier portion of the clause, he will see that “book” includes “ any book or volume, and any part or division of a book or volume.”
– My amendment, if adopted, can do no harm.
– It will probably lead to confusion.
Amendment, by leave, withdrawn.
– I understand that a very extraordinary position exists in the United States in regard to Australian books. In my opinion, an Australian publisher has a hard enough row to hoe without additional disabilities being imposed upon him. In America the same advantages are not accorded to. Australian writers as we extend to American writers. If an Australian publisher has a book which is worth selling in the United States, in order to secure the protection against pirated publications which is bestowed by International copyright, he has to print a copy of it there. Messrs. Angus and Robertson and other Australian publishers deserve every credit for the way in which they are facing this difficult task. They have found that pirated editions of the best of Lawson’s works have been published in America. Unless we are able to secure absolute reciprocity we should meet that position by providing that American works shall be treated in Australia just as Australian works are treated in that country. It is a most anomalous state of affairs, and if the Minister does not meet it by amending the definition clause, I hope that he will promise to deal with it in a subsequent provision.
– The honorable and learned member’s proposal is that an American should not be able to copyright his work here, except on terms similar to those on which Australian authors may secure a copyright in the United States.
– But the American author cannot help himself.
– The American authors and publishers can bring pressure to bear on the Government of the country. There is a league of honest publishers in the United States, and in an article published in a recent issue of the Atlantic Monthly, it was pointed out that justice ought to be done to English and Australian authors.
– The honorable and learned member should move an amendment.
– The amendment that I suggest is one that should not be proposed by a private member.
– The Imperial Government are yearly making representations to the United States authorities in regard to this question.
– Unfortunately, Imperial Governments, for the most part, belong to the Manchester school, and they push their free-trade views to such an extent, that they are not prepared to defend British authors and publishers. They are opposed to a policy of retaliation, but the onlyway in which you can make a person act fairly towards you is by treating him exactly as he treats you. As soon as the American authors found that, as a result of a policy of retaliation on the part of the British and Commonwealth Governments, they were losing a large circle of readers, I think that our own authors would soon secure redress. We might, by means of this Bill, be able to do the English writing world a very substantial service. Unless the Minister brings forward a proposal to meet the situation, I shall endeavour myself to deal with it at a later stage. We should try to encourage our own authors and publishers.
Mr. CONROY (Werriwa). - I think that the difficulty that has occurred in this case is another indication of the fact that we have not had sufficient time to consider this Bill.
– If the honorable and learned member moves the postponement of the clause, I will support him.
– But the point is that American authors do not come within the terms of the Convention, and that they will be unable to do so until Congress takes action. That being so, the disability falls not upon English or Australian authors, but upon the writers of the United1 States.
– My view is supported by such authorities as Mark Twain, Henry James, and, indeed, all American writers.
– Henry James has not been in America for twenty-two years ; they drove him away.
– That was the point I was about to make. The American law, instead of being advantageous to local literary, scientific, or artistic men, is distinctly disadvantageous to them. They have not been able to secure any protection. It is true that Australian authors have been unable to secure copyright there in respect of books published elsewhere; but having regard to the relative population of the two countries, the number of writers- disadvantaged in this way in the United States is likely to be twenty times as great as it is in Australia, since the leisured class from which authors draw their readers is infinitely more numerous in America. I think it would be better to allow ‘the position to remain unaltered, because we should not be able, by any action we might take, to make the United States alter their copyright laws. If we made any exception with regard to American publications, it would be necessary for us to pass an amending Bill as soon as the United States came under the international copyright law. Under the Bill as it stands the rights of the authors of that country will not be safeguarded here. The United States have granted no safeguard to our authors, and we propose to grant none to those of that country.
– By a treaty entered into between the United Kingdom and the United States in 1894, Great Britain allowed the American right or the American disability to which reference has been made to continue. We shall be bound by; that treaty unless we expressly exclude ourselves.
– That is not so. At the present time any American author, by publishing a book in Great Britain, can secure a right there in respect of it. Under this Bill an American author who in the same way constitutes himself for the time being, so to speak, an Australian writer, wi’ll be able to obtain a copyright here in respect of his work.
– The question is whether we should do anything that would enable the Americans to say, “Why object to what we are doing? Australia has done the same.”
– That is a good point. To adopt the course suggested by the honorable and learned member for Corio would be to disadvantage ourselves. No disadvantage can arise from our acceptance of the clause as it stands. If American authors wished to be safeguarded here they would have to publish here. Nothing we might do could compel the United States to alter their copyright law ; on the contrary, it might lead to increased bitterness.
Mr. GROOM (Darling Downs - Minister of Home Affairs). - I would point out that, as the honorable and learned member for Corio has stated, the printing of a work is a condition precedent to the granting of copyright there in respect of it. In this Bill, however, we provide that -
Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia.
It is pointed out in Copinger’s Law of Copyright that there is no treaty between the United States and Great Britain on the subject of copyright.
– What is the date of his work?
– 1904. I am citing the last edition:
– What does he mean by a treaty ?
– An agreement giving reciprocal rights between the two nations with respect to copyright. The American people are not signatories to the Berne Convention!, and, iff an English author wishes to obtain copyright in the United States, he must comply with their conditions ; while, if an American author wishes to obtain copyright in the United Kingdom, he must comply with the English conditions.
– Under sub-clause 2 of clause 13, could an American obtain copyright in Australia without publishing here ?
– Only by copyrighting under the British Act. Copinger says -
An American author will only be entitled to copyright in Great Britain upon complying with the same conditions as a British, subject. He must, therefore, publish simultaneously in Great Britain or her Possessions on the one hand, and in the United States on the other hand, and he must register at Stationers’ Hall and deposit the necessary copies of his work where this would be required from a British author.
The honorable and learned member has raised a very big question, and has asked us to take isolated action, such as we are not prepared to take at this stage. Hinkson, at page 105 of his Copyright Law, says of American copy-right that the author must -
On or before the day of publication deliver to the Librarian of Congress at Washington a printed copy of the title of the literary or dramatic work, or a description of the work of art. Not later than the day of publication he must deliver to the Librarian of Congress two copies of “ the copyright book, map, chart, dramatic or musical composition, engraving, chromo, art print, or photograph, or, in case of a painting, drawing, statue, statuary, mo’del, or design for a- work of the fine arts, a photograph of the same. Provided that in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered shall be printed from type set within the limits of the United States, or from plates made therefrom or .from negatives or drawings on stone made within the limits of the United States, or from transfers made therefrom.
Those are some of the American conditions, and I understand that some British firms have set up establishments, and are publishing in the United States. If an American wishes to obtain- copyright in Australia under this Bill, he must comply with Australian conditions.
– Is it necessary to retain the word “ newspaper “ in the definition of periodical?
– I think so.
Mr. CROUCH (Corio).- Sub-clause 2- of clause 13 says that copyright shall subsist - in every book, whether the author is a British subject or not, which has been printed from type set up in Australia.
But the Minister tells us that, if copyright had been obtained in the United Kingdom, it would be unnecessary for an American author, who wished to copyright his work here, to have the type set up in Australia.
– That is so.
– An Australian who wishes to copyright a work in the United States must, under the Chace Act of 1891, have the type set up there.
– He must fulfil the conditions of the United States law.
– One of those conditions being that the type from which the work is printed must !be set up in the United States. On the other hand, the American ‘author who wishes to obtain copyright in Australia, can altogether disregard the provisions of sub-clause 2 of clause 13, by registering in England.
– That is the Imperial law.
– Then the Minister has admitted that the American law imposes obligations on Australian authors which the Australian law cannot place on American authors.
– We cannot deal with this matter in the definition clause; and it is considered doubtful by some whether any legislation that we might pass on the subject would not be overridden by the Imperial law. Therefore, I ask the honorable and learned member not to push his proposal at this stage.
– I shall have to present it when we deal with sub-clause 2 of clause 13.
– America puts greater disabilities on our people in many ways than we put on hers.
– There is no reason why we should make the difference still’ greater. I think that American authors who wish to obtain copyright in Australia should be placed under disabilities similar to those under which Australian authors who wish to obtain copyright in America are placed.
Clause agreed to.
Clause 5 agreed to.
Clause 6 -
No copyright, performing right, or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libellous work or matter.
– I wish to know who is to determine whether a work is blasphemous, indecent, seditious, or libellous. This is a very important point. Is the determination to be by the officer administering the measure, or by a competent court? Take the word “ libellous.” It is very difficult to say what is a libel. A member on this side of the Chamber might regard a certain statement of the Opposition as grossly libellous, while others might treat it quite differently. No one desires that there should be copyright in works of the kind referred to in the clause, but I should like to know how and by whom it is to be determined what works fall under this category.
– The honorable member for Wide Bay has done well to raise this question. There are several ways of looking at the matter. From one point of view, it would be a good thing if blasphemous, indecent, seditious, and libellous publications were copyrighted, to prevent them from being given an extended circulation. The object of the clause cannot be to permit the copying and republishing of works of this kind without let or hindrance, by preventing the copyrighting of them. What I understand is aimed at is to prevent rights of property from being acquired in such works. The more direct way of dealing with the matter would be to prevent works of this kind from being registered.
– The registrar could refuse registration to any works which could not be the subject of copyright.
– Is there a clause enabling the registrar to refuse to register any book for which copyright is applied?
– Without any express provision to that effect, he could refuse to register anything which was not the proper subject of registration.
– He should have power to refuse copyright to blasphemous, indecent, seditious, and libellous publications. No doubt there are publications so flagrant that he would have no difficulty in determining that they should not be registered, and, where he had any doubt on the subject, he would be able to secure the advice of the law officers of the Crown. His own common sense (would lead him, in certain cases, to refuse copyright, but he should have statutory power conferred upon him to decline to register infamous publications.
– I think he has authority under the Bill, even although it is not expressed.
– If it is not expressed in the Bill, it will take a very clever Judge to find that the registrar had the power to refuse copyright. I cannot conceive of a copyright office being opened, unless power is given to the registrar to refuse copyright to infamous publications.
– But he has the power.
– A person can register only that which is the subject of copyright.
– But this clause, by implication, allows other works to be copyrighted.
– Copyright subsists in all written books communicated to the public, but protection cannot be obtained without registration. The Bill provides that nothing of a blasphemous or seditious character shall be the subject of copyright.
– Surely copyright is not conferred in the absence of an express application.
– Yes, that is the law; but if an author wants protection, he has to register.
– I donot know of any law in the Commonwealth-
– That is the Victorian law.
– That is not a Commonwealth law. I understood that the effect of the Bill would be to repeal the States laws.
– The Bill will override the States laws, so far as they conflict with it.
– Has every State a copyright law at present?
– New South Wales, Victoria, and South Australia have copyright laws. The Queensland copyright law rests upon the Imperial Statute.
– Then the Bill will leave all the States Acts intact to the extent to which they are not inconsistent with the Commonwealth law. This is not a codifying Bill.
– It unifies the principle. We have dealt with this subject in the same way as with patents. This clause is intended1 to prevent the right of property in any copyright in cases such as have been referred to.
– Are there similar provisions in other Acts?
– Similar provision exists in the Imperial law, and. I believe also in the States law.
– If the States laws did not enable the Registrar to refuse to copyright objectionable matter, and the Bill failed’ in the same respect, no common law provision would give him such authority. He would be simply set up as a person without statutory power to decide the moral quality of a publication.
– The common law provides that copyright shall not exist in libellous, immoral, obscene, or irreligious publications.
– If that be so, there is no need for the clause.
– The desire is to pass an Act which will apply throughout the Commonwealth. Copyright is never allowed to subsist in publications of a libellous, immoral, obscene, or profane nature. As soon as a book is published and communicated to the public copyright exists. We are now dealing with Australia only, and we are denning the publication in Australia. As soon as a_ book is printed in Australia, and published, copyright subsists.
– Is there any common law which gives right in that sense?
– No. As the honorable and learned member knows perfectly well, copyright is purely the creation of statute law. If a book were obscene or immoral, no copyright would exist, and if the Registrar were of opinion that a book was not the subject of copyright, he would be entitled to reject it. It would afterwards rest with the Courts to say whether he had rightly or wrongly exercised his functions. Clause 74 provides that if the Registrar wrongly enters a publication on the register, the entry can be expunged. An action might arise out of the reprinting of a book which was immoral in its tendency, and it would then be for the Court to determine whether there was any property in it.
– That gives us what we want.
Mr. FISHER (Wide Bay).- I am in some doubt as to the necessity for this provision. Would it not be as well to provide for the. registration of works of an objectionable character, so that the responsibility for their publication may be fastened on the right shoulders? It appears to me that the Registrar will occupy a position of greater importance than the High Court.
– No, his action will always be subject to the review of the Courts.
– The point is that the laws relating to libel and sedition are not always the same. Moreover, opinions differ very widely as to what is blasphemous or indecent. I consider that it is proposed to give the Registrar too much power, and that the scope of the provision is not defined with sufficient clearness.
– I think that the clause should be struck out. The Registrar is really being placed in the position of a public censor. We know that when Herbert Spencer published the chapter ira his work The Study of Sociology, relating to educational bias, he aroused the resentment of the clergy, because they regarded his writing as highly blasphemous. In the same way, many of the English clergy held that Darwin’s Origin of Species was blasphemous. If we had a Registrar imbued with the same HighChurch notions as these clergymen, he would probably refuse to register either of - the works mentioned.
– The Courts would have the final decision. “ Blasphemy “ is very clearly defined in the case of Bradlaugh and Besant.
– The Minister has stated that a similar clause w’as brought forward in the British Parliament. But I would point out that it was only brought forward1 in the House of Lords. Personally; I should like to see the clause eliminated.
– As I understand’ it, the position is that, when a book is published, the author has inherent rights in it. If he wishes to obtain the full advantages of copyright, he goes before the Registrar, who, under this clause, would be entitled to examine his work, with a view to ascertaining whether it contained anything indecent, blasphemous, seditious, or libellous. Now, the Registrar may not be a member of the legal profession. It is not necessary that he should” be a lawyer, but, judged by the provisions- of this clause, he would require to be both a lawyer and a parson. He might know what was indecent, blasphemous, and seditious, because we all have our own ideas upon those subjects, but he would need to be a clever lawyer to know what was libellous. I do not see why this Parliament should erect the Registrar of Copyright into a censor of literature. I would suggest to the Minister that a competent Court, and not a solitary individual, should pronounce judgment upon any work which was deemed to be indecent, blasphemous, seditious, or libellous. A tribunal of that kind would be far more likely to mete out justice than would any single officer. At the present moment we do not know who the Registrar will be. He may be a man who has a very narrow range of vision, and who will regard as libellous statements which, in his earlier years, he would have passed over as trifling or harmless.
Mr. GROOM (Darling Downs- Minister of Home Affairs). - Experience in the administration of copyright laws has proved that the apprehensions of the honorable member are entirely without foundation. We must place the Registrar in a position similar to that which he occupies in every other part of the British Dominions. I cannot conceive that the Registrar would refuse to register any book unless it contained something which was grossly immoral. If he did improperly refuse, the individual aggrieved would only require to apply to a Judge in Chambers to compel him to grant copyright.
– What would that cost?
– It would not cost very much. If the Registrar registers a book which is immoral, the mistake can be rectified. These matters generally come up for decision when there is an action for an infringement of copyright.
– It seems to me that the clause is quite unnecessary.
– We are only acting upon the experience of other countries. No substantial complaint has been made against the procedure.
– This provision is not contained in the old English Act.
– Yes, a similar provision is. Experience has shown that it does not work injuriously.
Mr. REID (East Sydney).- If the Minister had mentioned the provisions of clause 74 earlier in the discussion, he would have removed the objections which have been urged against this clause. Clause 74 gives ample protection to any person who is aggrieved by an erroneous decision of the Registrar. As the Ministerhas pointed out, an appeal can be made to the Judge in Chambers. There is nothing to prevent a person aggrieved by the refusal of the Registrar to copyright his workfrom bringing that officer before a Judge. Should the latter find that the book is not of an indecent, blasphemous, seditious, or libellous character, he can overrule the Registrar, and direct him to grant copyright. The object of the clause is to enable a test to be applied if such applications are made. It was necessary to impose a prohibition upon works of a certain description, so that the Registrar might be in a legal position to refuse to register them. Under this clause, he will be able to say to the author of any such work, “ I have come to the conclusion that this is a blasphemous, indecent, or libellous work, and, inasmuch as the law lays it down that there is no copyright in such works, I refuse to register it. If the authorfelt that the decision of the Registrar was wrong, he would have a right to get the decision of the Registrar reviewed by a Judge. It is necessary to a copyright law that there should be some provision of this sort. It enables disputes to be brought” into a wellordered train. If seems to me that with] the safeguards contained in clause 74 there can be no objection urged against the clause.
Clause agreed to.
Clauses 7 to 12 agreed to.
Clause 13 -
The copyright in a book means the exclusive right to do, or authorize another person to do, all or any of the following things in respect of it : -
Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from platesor negatives made in Australia in cases where type is not necessarily used, and haS, afterthe commencement of this Act, been published in Australia, before or simultaneously with its first publication elsewhere.
– I move-
That the following new sub-clause be added : -
This section shall apply only to books which are first published in a country which grants copyright on equal terms to books first published in Australia.
Will the Minister accept the amendment?
– I cannot.
– My proposal is designed to extend to Australian authors and publishers similar rights to those which are granted to American writers and publishers. It is largely in. consequence of the unfair acts of American authors and publishers that the insertion of this provision is rendered necessary. In Copinger’s Law of Copyright, page 493, I find the following : -
There is no treaty between Great Britain and the United States on the subject of copyright, and until recently British authors could not prevent their works being pirated in America. Some measure of protection is, however, now accorded to British authors by virtue of the Act known as the Chace Act 1891. The benefits of this Act are extended to a citizen of a foreign State when such foreign State permits to Americans the “ benefit of copyright on substantially the same basis as its own citizens,” or when such foreign State is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may at its pleasure become a party thereto. The existence of either of these conditions is to be determined by the President by proclamation.
I am pressing this point on the consideration of the Committee, because I know that Australian authors have been most disadvantageousl y treated. It is provided by the Chace Act that -
In the case of a book, photograph, chromo, or lithograph, the two copies of the same re- quired to be delivered shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States or from transfers made therefrom.
If an Australian author desires to secure a copyright in the United States, he must deposit in its Copyright Office two copies of his work, which must have been printed in that country. 1 do not know whether that requirement has been imposed in order to protect the printers of America; but whatever its object, it clearly places Australian authors at a disadvantage. A prominent firm of Australian publishers, Messrs. Angus and Robertson, who are doing a very great service to Australian authors, have shown me that Australian works - and particularly those of Henry Lawson - are now being pirated in the United States. The publishers and authors of these works are losing the profits arising from their sale there, because it was not at first considered that the demand for them would justify the expense of having a reprint made there.
– Is the American law under which no protection is afforded British publishers still in force?
– No protection is given them unless they fulfil American conditions.
– And what are those conditions ?
– That a book in respect of which copyright is sought in the United States must have been printed there.
– If that be so, I am inclined to support the view of the honorable member. On first principles there appears to be a great deal of force in what he has said.
– It is provided in clause13 of this Bill that -
Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used.
Asit stands, however, that provision maybe easily evaded by any American author who takes care to register in the United Kingdom. Reciprocity between the United Kingdom and the United States in regard to copyright has not been secured, because the United States refuses to enter into the International Copyright Convention, and if an American author registers first of all in England, he will thus secure his copyright throughout Australia. We have now an opportunity to do something for English writers. At every annual meeting of the Authors’ Society of Great Britain vigorous protests are made against the American law of copyright, whichis particularly unfair to writers of scientific works, which must necessarily have but a limited number of readers. We all know that for many years the question of whether Darwin’s Origin of Species would be a success remained in doubt. Darwin had devoted perhaps the best years of his life to the study of the theory which he embodied in that work; and naturally his publishers did not feel justified in incurring the risk of reprinting it in the United States, so as to comply with the copyright law of that country. It is well known that he lost the whole of the profits from the sale of his work there. It is the same with all scientific works - their success is at first doubtful I hold that we ought to do as much as we can to protect the rights of such men. Apparently the British Parliament has no time to devote to questions of this kind, and I think it is well that in passing a Copyright Bill we should take care to do all that we can to safeguard the rights of Australian and British authors generally. The American writer knows that he is able to draw his readers, not only from the people of his own country, but from those of every part of the British Dominions, with the exception, perhaps, of Canada, which has afforded its authors some protection in this regard.
– What is the Canadian law on the subject?
– Canada had a great fight over the question. It is pointed out by Copinger that in 1889 the Dominion Parliament, in order to remedy the grievance which arose from the fact that the Dominion was being swamped by publications from the United States, passed an Act to amend the Copyright Act of 1875 -
The passing of this Act - conceived in the interests rather of Canadian printers and publishers than of either authors or the reading public - led to a long and bitter controversy between Canada and the Mother Country, which was not terminated till the year 1900. It does not fall within the province of this work to enter into the merits of this controversy, but the Home Government resolutely refused to give its necessary assent to the Act, and the Act never became effective law. When in the year 1891, after the passing of the United States “Act, known as the Chace Act, British authors were enabled to obtain copyright in the United States, on condition that they printed and published there, the discontent of the Canadian publishers was greatly increased. Canada has always refused to recognise the arrangement between Great Britain and the United States as an “ international copyright treaty,” and does not permit United States authors to obtain Canadian copyright under her Copyright Act of 1886.
If we took up that position I should be satisfied -
Finally, in the year I885, directions were issued by the Customs authorities in Canada to cease to collect the duties required by the Foreign Reprints Act, 1847. At length, in the year 1900, a compromise was effected, and the assent of the Crown was given to a Dominion Act amending the Copyright Act 1886.
– That Fisher Act has been questioned.
– Its constitutionality, may have been questioned, but the Commonwealth Parliament has the undoubted constitutional right to make laws in respect to copyright.
– The same question came up in Canada. The honorable and learned member is referring to the Fisher Act of 1900.
– Yes. Copinger further points out that -
By section i of this amending Act, it is provided that if a book “ as to which there is subsisting copyright under the Copyright Act “ has been first lawfully published in any part of the British dominions other than Canada, and if it is proved to the satisfaction of the Minister of Agriculture that the owner of the copyright so subsisting, ana! of the copyright acquired by such publication, has lawfully granted a licence to reproduce in Cana-da from movable or other types, or from stereotype plates, or from electroplates, or from lithograph stones, or by any process for facsimile reproduction, an edition or editions of such book designed for sale only in Canada, the Minister may, notwithstanding anything in the Copyright Act, by order under his hand, prohibit the importation, except with the written consent of the licensee, into Canada of any copies of such books printed elsewhere.
– The English author must print his work in Canada in order to prevent ‘United States publishers pirating it and selling it in the Dominion ?
– That is so. From the stand-point of this author -
The objectionable feature of the 1889 Act, whereby an author practically would have lost his copyright in Canada, unless he acquired local copyright also, is removed. The Act does not touch Imperial copyright, and whether a British author takes advantage of the Act or not rests entirely with himself. If he desire to do so. he must make arrangements with a local publisher, and a special Canadian edition must be printed in Canada, though the type need not be set there. Thereupon the Canadian publisher will acquire local copyright for the Canadian edition, and the author or anybody else will be prohibited from importing copies of the work into Canada, but otherwise the author’s Imperial copyright will not be affected. If, on” the other hand, the author does not desire to take advantage of the Act of 1900, that Act has no effect upon his rights whatsoever …. Canada is not a party to the British Copyright Treaty with Austria.
I hold that it is the duty of the Parliament to take such action as will insure to Australian authors a proper reward for their labours. If Lawson and other Australian writers find that their works are being pirated in America, but cannot afford to incur the expense of printing and publishing simultaneously in the two countries, we are doing a wrong to them in failing to properly safeguard their interests. I have no doubt that the Canadian Act of 1900 will go a long way towards inducing the Government of the United States to have more regard to the rights of British authors, and similar Australian action would greatly assist the English-speaking world. The decent publishing firms in America are prepared to give international copyright on fair terms, because they are opposed to piracy, and, even , before the present law was passed, some of them made payments to English authors whose works they were publishing, though those payments were not so large as the English authors would have received had there been a copyright law. I trust that the Committee will agree to my proposal. Under it, the people of other countries will enjoy the same terms as they give to our people, and we have a right to insist on fair treatment to our struggling authors and publishers.
– I ask the honorable and learned member not to press the amendment. At the present time the United States is outside the Berne Convention, and will not make reciprocal arrangements on the subject of copyright with other countries under that agreement. Consequently, registration there does not give copyright throughout the various countries within the Berne Convention. If an American publisher wishes to obtain copyright in the United Kingdom, he must register under the English Act, which it would not be wise for us at this stage to attempt to override, because, under it, registration in any one part of the Empire gives a copyright throughout the whole Empire. This is a Bill purely to regulate the administration of the copyright law within our own boundaries, and to take advantage of the benefits of the Imperial Act, and the international agreement, and, while it is desirable that the copyright law. should be uniform throughout the civilized world, as the United States people have declined to enter the Berne Convention, we cannot force them in this matter. No American author, however, will be able to obtain copyright in Australia under our Bill unless he complies with our conditions, which are substantially the same as those of the United States.
– He is not bound to comply with our conditions, if he registers under the English Act.
– Any one who is entitled to copyright under the English Act has a copyright throughout Australia, and I think it undesirable thatwe should refuse to recognise the legislation of the Imperial Parliament in this matter, because under it any one has copyright throughout the Empire.
– But an Australian who wishes to register in America is at a greater disadvantage than an American who wishes to obtain copyright in Australia.
– An American wishing to obtain copyright in Australia must either comply with the provisions of this measure, which are the same as those of the American law, or comply with those of the English Act. It is quite possible that some aspects of the law of copyright may come up for consideration again next session, and, in the meantime, this matter could be looked into. Senator Keating, who deserves the thanks of the community for the tremendous efforts that he has taken to perfect this measure, recommends the Bill, and I ask the honorable and learned member not to press the amendment, but to leave the subject over for future consideration, and possible negotiation.
– I do not agree with the Minister, that we should pass the clause as it stands. Australian authors under any circumstances must have a hard row to hoe, because of the comparatively small number of readers in the Commonwealth ; but their position is made still more difficult by reason of the large quantity of English and American books which are imported here without let or hindrance. It is true that an American author who is not registered under the Imperial Act cannot obtain copyright in Australia until he complies with the provisions of this clause, but registration under the Imperial Act is a merely nominal affair, and. gives copyright throughout the whole Empire. I think that we should take the matter into our own hands, and do what we can to secure reciprocity between Australia and America. An Australian author cannot register in America until he has gone to the heavy expense of getting his book printed in type set up in the United States, and I think that the American author should not be protected here until he has acted similarly. If we have the constitutional power to make an amendment on the lines suggested by the honorable and learned member for Corio, I think that it should be made; but the matter could be dealt with in another way, namely, by imposing a duty on American books, which would place on American authors a disability equivalent to that now placed on Australian authors who wish to register in America.
– Inasmuch as our people wish to buy and to read American books, we should be punishing ourselves by doing that.
– The course I suggest is necessary to secure fair play in America, and to do justice to Australian authors.
– Such action would not compel the Americans to alter their law.
– The people of the United States have kept out of the Berne Convention, preferring to play a lone hand in this matter, and allowing their publishers to pirate the works of authors in other countries.
– We cannot force them to act reciprocally.
– I think we can, by letting them know that if they will not give reasonable conditions to Australian authors, they will not be able to obtain copyright in Australia under reasonable conditions, I trust that if the Minister cannot see his way to accept the amendment, he will endeavour, next session, to adopt measures which will place Australian authors upon a better footing.
– Canada has done what I propose.
– Not all that the honorable member proposes. I should not be satisfied with the half-measures adopted by Canada. I think that Australian authors should be protected by means of a special duty, or in some other way, against piracy on the part of American publishers.
– I hope that the honorable and) learned member will not press his amendment. I sympathize with Australian authors as much as he does, and’ would be willing to give them every reasonable protection, but I do not think we should differentiate against a friendly nation like America, which does not discriminate against us. It would be invidious for us to single out the United States for special treatment.
Mr. CROUCH (Corio). - I would point out to the honorable member that my amendment would apply to all nations which differentiate against us. There is not a word said about the United States.
The amendment would restrict the privilege of copyright, so far as foreign publications are concerned, to books which are first published in countries which’ grant copyright on equal terms to books first published in Australia. If America does not differentiate against us, the amendment will not operate to her disadvantage.
– I think there is a good’ deal in the contention of the honorable and learned member for Corio. I should be very sorry to make any invidious distinction against the United States, but we cannot overlook the fact that although the law is not specially directed against us, American legislation places our publishers at a disadvantage. The United States Act requires that a book for which copyright is required shall be printed and published in America within a certain time after the application has been lodged. I understand that, owing to this condition, a number of large English publishing firms have set up branch offices in America, and have brought out numerous works in England” and America simultaneously. The smaller firms that are unable to resort to this method of publication are placed at a great disadvantage, and this would apply to all the Australian publishing houses. Therefore, whilst American publishers can come here and obtain copyright for their publications, our publishers are denied a like privilege. We desire to place our publishers on the same footing as those of other countries, and I think that the amendment is deserving of consideration. It makes no invidious distinction so far as the United States is concerned, but subjects its publishers to the same conditions in Australia as are applied to foreign publishers in the United States. What is good enough for America ought to be good enough for Australia; and there can be no cause of complaint against us if we apply to the United States the methods which that country has adopted in dealing with others. The United States might be induced to recast its copyright legislation if it found that we were determined to assert our right in the direction indicated.
– I feel disposed to support the amendment. The arguments adduced in support of it seem to me to be very fair, and I trust that they will appeal to the Minister. I do not agree with the suggestion that we should impose a special duty upon imported publications. Any proposal of that . kind would at once raise the fiscal issue, and would have to be discussed upon party lines. The matter should be dealt with quite apart from any such considerations.
– I cannot support the amendment because it seems to me to go altogether too far. TheUnited States doesnot grant copyright to foreigners, and does not ask from others any privileges which it denies to outsiders. If we do not ask for copyright from other nations we are entitled to refuse it to them. It is clear that the smaller nations must gain under any reciprocal arrangement for the registration of copyright, For instance, it would be of much more advantage to holders of copyright in Australia if they could obtain protection in other countries than to publishers in other countries to obtain copyright in Australia. Although the amendment is not specially directed against the United States, it will have the effect that has been indicated by the honorable member for Gippsland. The discussion so far has proceeded on the assumption that only literary works are the subject of copyright. I would point out, however, that musical and dramatic works are also brought within the scope of the copyright law. Music is a universal language, and the arrangement entered into at the Berne Convention, by which musical works copyrighted in,, say, France or Germany can be safeguarded in other parts of the world, is of the utmost advantage. At this late stage of the session I think it is undesirable that we should introduce into this Bill highly debatable provisions. We have been informed that next session a Bill will be submitted for the purpose of dealing with the question of newspaper copyright, and the honorable and learned member for Corio will then be afforded an opportunity of submitting his proposal. I scarcely think that he will be acting wisely in pressing it any further at the present juncture. If he insists upon effecting such amendments in the Bill as will provoke debate in the Senate, the probability is that the measure will be “hung up.”
– Under subclause 2 I take it that no English author can secure copyright here.
– The right honorable member must read that provision in conjunction with clause 63. We do not override Imperial legislation on the matter. If a man registers in the United Kingdom his rights run throughout the British Empire. If he wishes to obtain the benefit of this Act, he has merely to register in accordance with the terms set out in clause 63.
– Then the sub-clause is not intended as a restrictive one?
– Certainly not.
– I am very glad to hear that, and I am perfectly satisfied.
Mr. BROWN (Canobolas). - I ask the honorable and learned member for Corio not to again submit his amendment. 1 recognise that this Bill can be made a fairly workable measure, but it is impossible, at this stage of the session, to deal’ with contentious matters. Under the circumstances, I think that the honorableand learned member will be well advised if he does not persist in his proposal. He will have an opportunity to bring the matter forward next session, when we shall have more time to deal with it.
Mr. REID (East Sydney).- I confess that I think a Legislature occupies a very extraordinary position when it absolutely shirks giving proper study to the provisions of a Bill upon the ground of the lateperiod at which it is being considered. I quite recognise that in view of my own attitude in the past, I must deal with a matter of this kind with exceeding tenderness. But in spite of my manifold iniquities, the suggestion that the Bill should be passed without proper consideration is really a reflection upon us for dealing with it at all. The observation of the honorable member for Canobolas proves that we are legislating under conditions which are not proper to parliamentary government. We have no right to pass measures without due consideration, upon the ground that we can subsequently improve them. That method of legislation is open to very serious objections. If there are debatable questions involved in this Bill, it would be infinitely better to defer its’ consideration until next session. If we have not the time at our disposal, to scrutinize measures thoroughly, it is infinitely better that their consideration should be deferred.
– Is it not advisable that we should deal with that portion of the Bill upon which we are agreed ?
– I do not think that the honorable and learned member for Corio is likely to have a better opportunity to submit his proposal. I quite see that there are complications in this matter which require consideration. My sympathies, however, are entirely with the object which the honorable and learned member has in view.
– So are mine.
– Then why cannot we extend more than sympathy to the honorable and learned member by supporting his proposal ?
– Its adoption would create complications.
– There is nothing new in that situation. The case put by the honorable and learned member for Corio seems to be one which is well worthy of consideration. The attitude of the United States with reference to copyright has been the source of unfavorable comment in every civilized country in the world. So far as I can, I am willing to assist any honorable member who desires to mark in an Australian Act our disapprobation of that policy. The only question to be considered is whether by so doing we should accomplish more harm than good. I do not think that the existence of such a provision would debar us from entering the Berne Convention.
– It is very hard to say what the effect of the honorable and learned member’s proposal would be.
– If the amendment would have the effect, so would sub-clause 2.
– No; that applies only to Australia. We preserve all the international relations.
– There is 110 doubt that the provision referred to by the Minister removes the obnoxious effect of this clause, so far as the Berne Convention is concerned. I should like to know whether the adoption of the amendment would impair our position in reference to the Convention. I do not think that it would, because it would apply only to the United States.
– The United States is outside the Berne Convention.
– I am strongly inclined to support the honorable and learned member for Corio. I think that we should place upon record our disapproval of the wretched policy of the United States in connexion with this matter. By so acting, our position in reference to the United Kingdom and the countries which’ are parties to the agreement would not be affected, because those countries are not open to the criticism which has been levelled against the United States. Since the United States remains outside the Berne Convention for selfish reasons, we should not be aiming at any country represented in that Convention. I think that in this Bill we should embody an expression of opinion which ought to’ have some good effect. “I ‘fail to see why in legislating for the Commonwealth we should be compelled to slavishly follow the Imperial Statute, as long as we do nothing to create confusion.
– But the intention of the honorable and learned member for Corio is that supposing a United States author obtains a right, as he is entitled to do, under the Imperial Statute, he shall not be allowed the benefit of that right in Australia.
– To my mind it is rather an argument in his favour. The only way in which we can show the United States that we think they should act fairly by authors in other parts of the world is by passing, so far as we can, a provision that will teach them their duty by the only lesson they are prone to accept- the lesson of self -necessity.
– Does the right honorable member think that 80,000,000 people would take much notice of the opinion of 4,000,000 ?
– They might do so. But in any event the 4,000,000 people have a right to look after themselves in a manly way.
– Does the right honorable member think that we should try to take away rights granted under an Imperial Statute?
– I think that rights granted under an Imperial Statute have nothing to do with an Australian law. The idea that they have requires to be suppressed.
– I think it requires to be discussed.
– Certainly ; but too much attention should not be paid to it. We are passing an Australian copyright law, and we are absolutely free to frame that law in the most beneficial shape. My first con- sideration is whether or not the amendment proposed by the honorable and learned member for Corio would prejudice our position with reference to the Convention agreed to_ by Great Britain and many other countries. If i* would, that would be sufficient justification for my opposing it. I should be sorry to do anything that would interfere with the entrance of Australia into that Convention, but as the amendment is aimed only at a country which stands obstinately out of that Convention, I see no difficulty in supporting it.
Mr. GROOM (Darling Downs - Minister of Home Affairs). - I must ask the honorable and learned member for Corio, not to press his amendment without full consideration of the position.
– I have considered it very carefully.
– We must naturally sympathize with the desire to protect Australian interests, but the position seems to be that as far as possible an attempt is being made to come to some understanding with the United States.
– If the United States enters the Convention, this proposal will not affect lt
– The desire is that we should not take any precipitate action. It is doubtful whether we can affect rights conferred upon American authors under the Imperial Act.
– We can assert our own rights.
– But the honorable and learned member for Corio wishes to insert in the Bill an amendment affecting the rights of others. It is a complicated question, and I ask the honorable and learned member not to press his amendment.
– We are trying to secure fair treatment for Australian authors.
– Whilst I fully sympathize with that desire, I would point out that there are various ways by which effect can be given to it, and that I do not think that that proposed by the honorable member for Corio is a desirable one.
Mr. CONROY (Werriwa).- I would remind the honorable and learned member for Corio that the Imperial Copyright Act applies to the Commonwealth.
– But my amendment does not affect any friendly rights; it affects unfriendly rights.
– I cannot follow the honorable and learned member, but I would remind him that, so far as the extension of the Imperial Act to the Commonwealth is concerned, we could not alter the position by any Act we might pass. This is a non-party measure, and remembering that the Imperial Copyright Act applies to Australia, it seems to me that by agreeing to the amendment, we should add to it something that might have no effect.
– Surely we have power to pass laws relating to copyright.
– -Certainly we have.
– Rightly or wrongly, the Canadian Acts have been questioned. In the case of Black versus The Imperial Book Company, in 1903, the Court emphasized the opinion that Canada possessed no copyright’ legislation which ousted the Statute of 1842.
– We can legislate in respect of matters within our own jurisdiction ; whilst we enjoy all the advantages of the Imperial Act - -
– And suffer all the disadvantages,
– The Imperial Act enables Australian authors to secure the protection of their copyright throughout Great Britain, India, and other parts of the Empire. If the sale of an author’s works were confined to the Commonwealth, he would reap no great profit from them. I should like to preserve for those Australian authors whose genius secures for their works a sale in other parts of the Empire, all the benefits of the Imperial Copyright Act, and we must be careful that we do not exclude ourselves from the advantages of that Statute.
– Does the honorable member mean to infer that we might do so?
– At the present moment I am not prepared to express a definite opinion on the point. I am inclined to think, however, that the proposal is to insert a provision which is inconsistent with the Imperial Act, and which might, therefore, jeopardize the whole Bill. If the Governor-General were advised that any provision in it was in conflict with the Imperial Act, he would be bound to reserve his assent to it. I confess that I do not anticipate that the amendment would give rise to all the dangers that have been suggested, but I must decline, without opportunity for full consideration, to support any amendment in such a highly technical Bill. I think that the Ministry are adopting a safe position ; but I should have been glad to see the Bill held over until next session. That would have given us an opportunity to thoroughly consider its provisions. But, even if the amendment be rejected, the honorable and learned member for Corio will have an opportunity, within the next six months, to bring forward his proposal in a way that will allow of its full consideration. If, at a later stage, it were shown that this measure needed to be amended in several important directions, and in such a way that it would not come in conflict’ with the Imperial law, I should be ready to support such a proposal, feeling that the matters in question had been clearly overlooked when the Bill itself was being pushed through the House.
Question - That the words proposed to be added be so added - put. The Committee divided.
Question so resolved in the negative.
Clause agreed to.
Clause 14 (Performing right in dramatic and musical works).
Mr. CONROY (Werriwa).- I should like to know what is meant by a “ performance.” The law of the States on the subject differs.
Clause agreed to.
Clause 15 (Lecturing rights in lectures).
Mr. CONROY (Werriwa).- A point arises in connexion with this clause similar to that of which I have just spoken, but I think I can deal with the matter more effectively later on.
Clause agreed to.
Clause 16 agreed to.
Clause 17 -
Where the first publication of a book, the first performance in public of a musical or dramatic work, or the first delivery in public of a lecture takes place after the death of the author, the copyright, performing right, or lecturing right, as the case may be, shall subsist for the term of forty-two years or for the author’s life and seven years, whichever shall last the longer, after the end of the year in which such first publication, performance, or delivery took place, and no longer.
Amendment (by Mr. Groom) proposed -
That after the word “ years,” line 7, the following words be left out : - “ or for the author’s life and seven years, whichever shall last the longer, after the end of the year in which such first publication, performance, or delivery took place, and no longer.”
– I do not think that we should give forty-two years’ protection for a lecturing right. This is going further than the English law.
– The English law gives protection for a long period.
– This is a much longer period, and altogether too long a period, considering the nature of a lecture. We are making it possible for actions for infringement to arise after the generation which first heard the lecture had passed away. I ask the Minister, even at this late stage, to consider the advisability of putting the Bill aside for the present, seeing that the Committee is not in a fit state to consider it. A lecturing right is absolutely different from a right in a book or in a dramatic work, and I assume that a protection of forty-two years was given only because the attention of the Senate was not drawn to the matter.
– It is a common law right, and is protected by statute.
– Yes; but we are going to grant it for forty-two years. Practically no right Has existed in the past.
– Oh, yes !
Mr.CONROY. - It is hardly right to ask us to make such sweeping changes as are involved in the clause. This provision affords another reason why we should postpone the consideration of the measure, because if we once granted this right we could not take it away: No such right exists in any other part of the world.
Amendment agreed1 to.
Amendment (by Mr. Groom) agreed to-
That the words “ and no,” in the last line, be left out, with a view to insert in lieu thereof the words “ whichever shall last the.”
Clause, as amended, agreed to.
Clauses 18 to 20 agreed to.
Clause 21 (Encyclopaedia, and similar works).
– That is all provided for elsewhere.
– The more I look at this Bill, the more it seems to me that it should not have been brought forward at this stage. I am perfectly sure that the Senate, despite the fact that they are said to have carefully considered the measure, have conferred rights to which honorable members would not agree. If the author of a work desires to transfer the copyright, let him do so.
– There is nothing novel” in this provision.
– Let us pass an amending Bill next session.
– That is a nice suggestion. Are we to enact faulty laws merely for the sake of placing on record the fact that we have passed a certain measure? Why should we not deal with these matters in a comprehensive manner, and have done with them?
Clause agreed to.
Clause 22 (Copyright in articles published in periodicals).
Mr. CONROY (Werriwa).- I should like to know what this clause means.
– It allows a perfect freedom between the publisher and the writer. The writer can sell or assign his rights if he chooses.
– But he has the power already.
– But we are now dealing with copyright in articles appearing in periodicals.
Clause agreed to.
Clause 23 (Copyright in articles published in periodicals without valuable consideration).
Mr. CONROY (Werriwa). - This clause entirely changes the existing law.
– It provides that if you write an article, and do not get paid for it, you will be entitled to the copyright.
– Yes. But very frequently the great object the writer has in view is to obtain publication in a certain periodical.
– In that case an agreement can be entered into as to the copyright.
– As the law stands, the writer knows that he parts with the copyright unless he expressly reserves it. But now the law is to be entirely reversed.
– It gives the author another chance.
– That is not the point. An absolute reversal of the present law is being attempted, and that fact should have been pointed out to the Committee.
– It is pointed out most clearly.
– I do not think so. Every Bill to which I have raised the objections I am now urging against this measure has since been the subject of amendment, and I am quite sure that a similar result will follow in this case.
– Is that not invariably the case in regard to initial legislation ?
– It ought not to be. We should change the law in such a manner as to fully accomplish our purpose. Not one argument has been adduced to show that this change is necessary. The old law may have been a bad one, but we have heard of no complaints against it; and we have certainly heard nothing to show that the proposed change is a good one. We should not pass legislation of this kind without serious debate.
Clause agreed to.
Clause 24 agreed to.
Clause 25 (Copyright and other rights to separate properties).
Mr. CONROY (Werriwa). - I admit that there is some difficulty in this case. For instance, a man publishes a book, with a very good plot, and immediately three or four others set to work Bo dramatize it, and the author is shut out from the advantage which should accrue to him from the product of his own brain.
– Clause 13 provides for the protection of the author. This clause is intended to give separate rights, so that they can be assigned1. It is merely a reprint from the proposed Imperial law.
– The provision is notin the Imperial Act.
– No, but it is in the Bill which was passed by the House of Lords
– It appears that by clause 13, we have given to every author of a novel the sole right to convert it into a drama. An author may never dramatize his book, and no one else will be entitled to make any use of his plot for the purposes of a drama for forty-two years. Therefore, in view of the multiplicity of novels that are springing up, the dramatic writer will not know where he is. How are we to define what is a dramatic representation? We know that the English Courts have recently been engaged in dealing with the rights of dramatists in regard to the use of novels. We are now proposing to confer upon a novelist the right to go to a dramatist and tell him that he must not proceed with his work, because he has adopted a plot similar to that contained in the novel. Under this provision, he may be subjected to heavy penalties, because it may be urged that he has dramatized some work of which he has never heard. Ought we to impose such disabilities upon dramatic authors? Personally, I consider that the provisions of clause 13 are altogether too wide. In its present form, it is a distinct hindrance to dramatists. Of course, most of the plays produced in Australia, are written by the dramatists of older countries, and consequently, the cases which will arise under this provision, may not be numerous. I object to rendering dramatists liable to penalties, because it may be alleged that they have dramatized stories of the very existence of which they may have had no knowledge.
Clause agreed to.
Clauses 26 to 32 agreed to.
Clause 33 -
The notice prohibiting the reporting of a lecture may be given -
– I think that sub-clause 3 is highly objectionable, because the Bill contains no definition of the words “ a series of lectures.”
– Surely the meaning of the provision is perfectly clear.
– Does the sub-clause relate to a series of lectures in respect of one subject?
– The clause saysthat the series of lectures must relateto the same subject.”
– Each lecture would require to be notified.
– Unless there were three Lectures upon the same subject.
– My point is that the notice required to prohibit a report of a lecture is not sufficient. I say that there ought to be some clear notification..
– So there is.
– The representatives of the newspapers must be present, in order to obtain a report.
– Under this sub-clause, if a lecturer, prior to delivering his lecture, notified the newspapers that it was not to be printed, that notice must be regarded as sufficient. Are lecturers like the late Rev. Charles Clarke to be entitled to copyright of their lectures, even if those lectures have been “cribbed “ from a number of authors and strung together?
– If a lecturer charges a fee for admission . to his lectures, they ought to become public property.
– The subject is not free from difficulty,, but I maintain that we ought not to grant these extraordinary rights. When we are invited to confer upon certain individuals rights extending over such a long period as forty-two years, surely it is not too much to ask that the public interests should be safeguarded.
– Does the honorable and learned member, think that the clause is needed? Does not every lecturer desire his lectures to be reported in the newspapers ?
– If he does so, this provi- sion will not’ trammel him in any way.
– Under the plea of granting rights to certain individuals, we are infringing the rights of others. This clause would permit a person to take advantage of some right of which nobody had ever heard to prevent another person from delivering a particular lecture. Does it not frequently happen that a dozen honorable members hit upon the same idea?
– A thousand scientists today are thinking exactly the same thing.
– The fact that one man has lectured upon a certain subject ought not to prevent another individual from lecturing upon the same subject. However, it is clear! v impossible for me to persuade the Committee to take the same view of the matter as I do. I have entered my protest against the clause, and when cases of hardship arise under it, I hope that hon orable members will recollect that they gave me no assistance whatever in endeavouring to prevent injustice being inflicted upon those who will come after us.
– There is a good deal of force in the argument of the honorable and learned member for Werriwa. We ought not to pass a clause of this kind without seriously considering its possible consequences. The delivery of a lecture on such a subject as “ Shakespeare “ ought not to preclude the delivery of another lecture upon the same subject. If there be any possibility of guarding against an abuse such as that indicated by the honorable and learned member for Werriwa, I think that the Minister should seriously consider it.
– What is the particular point of the honorable member?
– If one person happens to choose for his lecture the same subject as another he ought not to be subjected to special disabilities.
– It is clear that, under this provision, he would not.
– I hope that it will be made so, but it is not so now.
– It is clear that the position could not be otherwise than I have stated. It must be his own lecture. For instance, no man could copyright the words ‘’ Socialism “> or “A Lecture on Shakespeare.” There might be as many lectures on Shakespeare as there are men in the Commonwealth. The principle is that a man must not wrongfully appropriate the work of another.
– I am aware that that is the principle aimed at; but the question for consideration is whether this clause will not open the door to abuses.
– We have not had an opportunity to give to this Bill the careful consideration that it deserves,and one cannot be expected at a moment’s notice to determine what is really necessary in this regard. It seems to me, however, that this provision is unreasonable. I am one of those who believe that public lectures have done much to raise the people from the mire of ignorance to the higher altitudes of learning, and I fail to see why a lecturer should have power to prevent a newspaper from publishing his address. This clause means really that a lecturer- shall have the power to say that no one shall learn of the purport of his lecture, except by paying for admission to the hall in which it is delivered. The clause is not in keeping with modern ideas on educational .questions. The lecture may consist of a mere collection of historical facts from various sources, which are open to the whole community, but with which the people generally have not time to acquaint themselves, and the moment such a lecture is delivered from a public platform it should become the property of the public. The people should have the opportunity to learn the views of a lecturer, not merely by paying for admission to ‘the hall in which he speaks, but by means of newspaper reports. I agree with the honorable and learned member for Werriwa that we may go too far, and that there is a point at which we must limit the right of a man to secure privileges to which he is really not entitled. I certainly think that we are asked to take a retrograde step.
– I disagree with the view taken of this clause by “the honorable member for Gwydir. To my mind, the matter treated by a lecturer stands in much the same relation to him as does a scene to an artist who photographs it.
– But the fact that a man has photographed a particular scene would not be sufficient to prohibit others from photographing it.
– Certainly not. It is not the scene, but the picture of it, that is copyrighted. A dozen men or more may copyright a picture of the same scene. In like manner, I think that a lecturer should be protected in respect of the address which he has prepared on any given subject. The clause does not contain any element of danger, and I am inclined to think that the argument put forward by the honorable and learned member for Werriwa is rather a far-fetched one.
– I am inclined to the view that, instead of providing that newspapers shall not publish lectures for the benefit of the community, unless with the consent of those who deliver them, we should enact that any newspaper which fails to publish a lecture shall be heavily fined. A man of great genius, although practically unknown, might announce his intention of delivering a lecture in Melbourne, and might have an audience of only fifteen or twenty. But if a smart and clever reporter for one of the great Melbourne dailies attended that lecture, he would quickly appreciate its value, and so publish it to the world. It is perfectly ridiculous, to talk about preventing newspapers from publishing lectures. At the present time, the difficulty which lecturers, teachers, and other educationalists experience, is in (inducing the newspapers to publish anything that they say.
– I am afraid that there is some little misconception of the effect of this provision, and of that which it is intended to protect. .1 think that we are all agreed that every man is entitled to the product of his labour. If a man treats a. subject in an original form, there are two ways in which he may put his work before the people. In the first place, he may publish a book, and in the second he may orally communicate his ideas. If he does so, he can copyright it. It is generally admitted that, in such circumstances, a man should have substantial protection for the result of his labour. Let us take the case of a man who desires to earn a livelihood, not by writing books, but by preparing and delivering lectures on certain subjects. The preparation of a lecture may involve a great deal of research, and a man may suffer great hardships in securing the information necessary for his work. Imagine, for instance, the case of one who goes on a voyage of discovery to the Antarctic.
– If he did, he would embody in a book the information that he obtained.
– In that case, his work could be copyrighted. But suppose that he determined to place the information that he had gained before the public, by way of lectures. In that case, surely he should be entitled ,to secure protection for his work. As a matter of fact, we have already affirmed that he shall. It is pointed out by Hinkson that -
Authors of lectures, or the persons to whom they have assigned them, have the sole right of publishing them ; and any person who publishes such lecture without leave is liable to a penalty under the Lecture Act 1835. But to take advantage of this Act it is necessary to give notice of the lecture to two justices living within five miles of the place where the lecture is to be delivered at least two days before its delivery.
That was the English law. The Committee which investigated the whole question in the United Kingdom recommended the very provision that the Government are to-day urging the Committee to adopt. The honorable^ member for Darling has pointed out very truly that the protection which it is proposed to afford a lecturer will be in respect only of the original treatment of the subject with which he deals. The late Reverend Charles Clarke earned his livelihood, and educated the public, by his beautiful lectures on Westminster Abbey, Dickens, Thackeray, and other subjects which any one is free to lecture upon, (but the origin’al treatment of which by any lecturer should be protected.
– I think that there is a great deal in the criticism which has been expended on this clause, and it is open to further objections. Who is to define what is a report ? My experience is that it. is unprecedented1 for a newspaper here to report verbatim the lectures of prominent men visiting Australia; but a paragraph of a. few lines, giving the briefest summary of a. lecture, might be a technical breach of this provision, which is a very clumsy one to administer. I sympathize with those who think that it is being proposed to carry the protection of- copyright too far. As a rule, the personality of a lecturer is a more valuable asset to him that the mere words of his lecture. If we read the report of a lecture delivered by a great preacher or orator, it stimulates us to hear him, instead of keeping us from doing so. So far as the mere words of a lecture are concerned, they can be copyrighted by making a book of them, and copyrighting it. The greatest service that can be done to a lecturer is to report his lectures in the press. Moreover, any member of his, audience may take down the words of his lecture, and make it his own property. Of course, it will be said that if it is of service to lecturers to have their lectures reported in the press, the clause will be inoperative, because lecturers, - with the exception of, perhaps, an occasional crank - will not prohibit the reporting of their lectures ; but how absurd it would be to pass legislation merely for the benefit of a crank who might think that the lecture he had produced was such a monument of wisdom that, unless his rights in it were protected, it would be repeated all over the world, and1 he would .lose thousands Such persons can protect their lectures by copyrighting them in book form.
– If that is done, the lecturing rights cease.
– I think that the clause goes too far, and I shall be quite willing fo vote against it.
– I should like to point out to the Committee that about two years ago Lord Rosebery delivered a speech, which the Times newspaper published in a more or less condensed form, and the question arose as to whether the proprietors of the newspaper had such a copyright in the report as would enable them to prevent other persons from using it. The Court held that they had such a copyright.
Mr. CONROY (Werriwa). - No country in, the world gives lecturing rights for so long a period as forty-two years. When a copyright is given to an author, he is bound to publish his work in order to take advantage of it, and when he does that, any one who wishes to do so can secure a copy of it. But, if a lecture is copyrighted, nobodycan enjoy it except those who actually go to hear it.
– And those living in towns which the lecturer never visits are for ever deprived of the opportunity of hearing it.
– It would not cost a lecturer more than a few pounds to print any lecture in book form, even if it were as long as one of the speeches of the honorable member for Gwydir. That being done, he could copyright the book.
– In that case, he would lose his copyright in the lecture.
– A lecturer’s chief asset is his own personality. As the honorable and learned member for East Sydney has pointed out, the publication of even a short summary of a lecture might be construed as a breach of the provision. I do not think that lecturers should be permitted to prevent any person in the community who is willing to pay for the privilege from enjoying their compositions. Of course, w£ know that Mr. Ruskin, who was a crank, refused to allow the publication of any but the first edition of his works until towards the close of his lifetime, * with the result that his books became very expensive.
– There are not many cases like his.
– No. While I do not value his criticism, I think very highly of the beautiful English of his writings, and the fine descriptions which they contain. I know something about political economy, and laugh at his criticisms on that subject ; and I am told that those who know something about art laugh at his art criticisms. Apparently those who know nothing about art, think his art criticisms very good, and those who know nothing about political economy, think his works on that subject very valuable. I think, however, that the man who enjoys the protection of the copyright law should not prevent the public from enjoying his works, and if a lecturer is to have his lecture rights protected for forty-two years, he should not be able to prevent the public from reading reports’ of his lectures.
– I suppose the honorable and learned member would give a lecturer a copyright in the oral deliverance of his lecture.
– Yes; but not in the lecture itself, unless he cared to publish it. He could get it printed in the form in which he delivered it at an expense of £2, and would then be absolutely safeguarded. Moreover, he would be able to bring his lecture under the notice of people who had not had the advantage of hearing it.
– A very good lecture might be given by a man with a poor delivery, and a lecturer with a good delivery might take it up and make it much more attractive.
– Exactly. We are being asked to giveabnormal powers to a lecturer, and I think that it is proposed to go too far. Notice should be given in connexion with every lecture, instead of only at the beginning of a series of lectures. One lecture might be delivered to-day, and others at intervals of a month, and the notice might fade from the public recollection before the series was completed. I move -
That sub-clause 3 be left out.
Question - That the words proposed to be left out stand part of the clause - put. The Committee divided.
Question so resolved in the affirmative.
Clause agreed to.
Clause 34 (Protection of newspapers).
Mr. GROOM (Darling Downs- Minister of Home Affairs). - I propose that this clause be left out.
Mr. REID (East Sydney).- As one who is opposed to this provision, I am very glad that it is to be struck out. The Minister made a statement at an earlier stage of the debate that some similar provision might be introduced next session.
Mr. Groom. - No.
– May I take it that the Bill to be introduced by the Government will not continue this clause?
– I cannot say at this stage.
– Surely the Government ought to have been able to make up their minds with regard to a. matter which has been fully debated in the Senate, and which has been before this Chamber for some time. The public are entitled to know of the attitude of the Government with regard to the clause. We are told that an opportunity will be afforded to deal with the matter. That opportunity must be given by means of a Bill rather than by a resolution, which would have no effect. Do the Government intend to introduce a Bill next session?
– I stated that an opportunity would be given to deal with the subject of the clause next session - that a Bill would be introduced-
– What Bill?
– A Bill which the Cabinet will consider.
– Is it to be a Bill dealing with copyright?
– It will deal with the subject of the clause.
– Then the Government do intend to bring in a Bill to deal with the subject of the clause?
– Then is it too much to ask what attitude they intend to take with regard to the clause?
– I cannot say at this stage.
– Then, may I take it that the Government have not made up their minds as to whether or not they will sup port the principle of the clause?
– I have told the right honorable gentleman that it is impossible to say at this stage what the Bill will contain.
– Will the Minister ask Mr. Watson ? .
– The right honor.able gentleman has had the most experience in that direction.
– Not with Mr. Watson. Mr. McGowen led the party when I was in office.
Clause 35 agreed to.
Clause 36 (Copyright in artistic works).
Mr. BRUCE SMITH (Parkes).The clause refers to artistic works “made” in Australia. That seems to be a very clumsy word to use in connexion with artistic work. “ Produced “ would be a better term.
– It is appropriate to speak of a photograph as having been “made.”
– Yes; but the Minister afterwards suffers from the clumsy phraseology adopted in Acts, and therefore might, I think, consent to substitute a more suitable word
– I find that in the Bill which was drafted in the House of Lords the terms “wherever made” are used in connexion with artistic works.
– Then the House of Lords is very clumsy in its phraseology. Would the Minister be willing to slavishly follow the House of Lords in everything?
– No; but on the spur of the moment I am not prepared to suggest a better word.
– Have any decisions been given with regard to the definition of the word “made” in this connexion?
– I do not know. But as a rule, we know that Imperial Bills are carefully drafted. The Copyright Bill was not only carefully drafted, but was investigated by a Select Committee of the House of Lords.
Clause agreed to.
Clause 37. -
The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty -two years, or for the author’s life and seven years, whichever shall last the longer.
– I wish to point out to the Committee that in this clause we are asked to extend the term of artistic copyright to a period that is quite unknown in any other country. I contend that the provision should have practically embodied the law at present in force in the different States. In New South Wales, the period of artistic copyright is limited to fourteen years. As a matter of fact, that is the term during which a patent is protected. In Victoria, South Australia, and Western Australia a similar law prevails. We are now asked, without rhyme or reason, to extend the term of artistic copyright to forty-two years.
– The clause is limited to works of art. Surely the honorable and learned member would not allow a work of art to be copied after fourteen years?
– How can anybody reproduce an artistic work? Its sole value lies in the fact that it cannot be reproduced. Its very author cannot reproduce a work of exactly the same type and character. I defy anybody to make two paintings which are absolutely similar. One may possess a very high value, and the other mav be worthless from a purely artistic point of view. The term of copyright in paintings, drawings, &c, is fourteen years. In this clause we are asked to deliberately increase that period to forty-two years. I say that we ought not to make such a serious departure from the laws of the States without very good reason being advanced for our action. In the matter of photographs, the term of copyright in New South Wales, Victoria, South Australia, and Western Australia is three years. In Queensland and Tasmania, where the Acts of the United Kingdom apply, it is for the life of the author, and an additional seven years. That is an entirely different state of affairs from that which will obtain under this Bill. In four States, representing five-sixths of the population of the Commonwealth, the term of artistic copyright is fourteen years. We are asked, without any reason being assigned for the change, to suddenly increase it to forty-two years. Under this Bill one man may have registered a copyright for fourteen 3’ears and one month before the Act will come into operation. He will receive no protection whatever, whereas the individual who registered thirteen years and eleven months before the commencement of the Act, will have his term extended to forty-two years. I am bound to say that I regard this matter as of so much importance that I should like to see a quorum present. Quornm formed.”] Considering that the proprietors of patents, which represent the highest efforts of mechanical genius, are protected for only fourteen years, surely that is a sufficiently long term to apply to artistic copyrights ! I contend that in this Bill we are going too far, because we are lessening the rights of individuals. What would be thought if forty-two years had to elapse before we could take advantage of any patent? We must fix a reasonable period at which the public shall secure a return for the exclusive rights which they have conferred upon particular individuals. We are asked to regard this Bill as A formal one, and to pass it without discussion. The more I look into it, the more I am satisfied that we ought not to have been invited to agree to it in this hurried fashion. However, I do not intend to labour the question. These matters ought to be as much the concern of every other member of the Committee as they are mine. I move-
That the words “ forty-two “ be left out, with a view to insert in lieu thereof the word “ fourteen.”
– I cannot accept the amendment. It is true that in some, parts of the world, the term of artistic copy– right is only fourteen years; but I see no reason why an artist or a sculptor should not have the same protection conferred upon his inventive or artistic powers that is accorded the writer of a book. In the United Kingdom the term of artistic copyright is during the life of the author and seven years, which is practically an alternative to the period of forty-two years. In Canada, it is twenty-eight years., with conditional extension for fourteen years; and in Queensland, it is during the life of the author and seven years. In the circumstances, I think it is only fair that adequate protection should be given as proposed.
– To. fix the period of artistic copyright at forty-two years, would be to go to too great an extreme; but there might be some reason for fixing it at twenty-eight years.
– The Committee has already decided that the provision as to forty-two years shall stand.
Clause agreed to.
Clauses 38 and 39 agreed to.
Clause 40 (Copyright in photographs).
– Under this clause, the copyright in a photograph would vest absolutely in the person who was photographed. Does the Minister think that that is fair?
– Yes, if the photograph be taken for valuable consideration. In other words, the man who pays another to take his photograph, has a copyright in it; but. if he pleases, he may hand it over to the photographer.
– Well, then, that right must extend to ownership of the negative. How will this provision affect the right of a photographer to the retention of negatives, the possession of which are regarded as a valuable consideration in the disposal of a photographic business ?
– I presume that a photographer will be allowed to sell the negatives. He may keep them for years, and accept fresh orders for copies from them; but the copyright in the photograph itself will remain in the person who gave the original order.
– This seems to me a rather drastic provision ; but, in the circumstances. I shall riot move an amendment.
Clause agreed to.
Clause 41 agreed to.
Clause 42 -
When the owner of the copyright in any artistic work being a painting, or a statue, bust, or other like work, disposes of such work for valuable consideration, but does not assign the copyright therein, the owner of the copyright (except as in this section mentioned) shall not make a replica of such work, without the consent in writing of the owner of the original work.
– The honorable member for Bourke, who is temporarily absent from the Chamber, has given notice of an amendment to this clause. Mr. Groom. - If the honorable member moves it, I shall be pleased to accept it.
– On behalf of the honorable member for Bourke, I move -
That the words “shall not,” line 6, be left out, with a view to insert in lieu thereof the words “ may in the absence of any agreement in writing to the contrary “ ; and that the words “ without the consent in writing of the owner of the original work” be left out.
– This clause in effect throws on the purchaser the onus of seeing that he obtains the special copyright for himself. In the absenceof any agreement to the contrary, the other party retains it. Is that the effect of the provision ?
Amendments agreed to.
Mr. CONROY (Werriwa).- I think that in the circumstances indicated in this clause, the right might well be allowed to remain in the person who has produced the work in question.
Clause, as amended, agreed to.
Clauses 43 to 52 agreed to.
A Justice of the Peace may upon the application of the owner of the copyright in any book or in any artistic work or of the agent of such owner appointed in writing : -
Mr. CONROY (Werriwa). - I think that this is far too great a power to vest in a justice of the peace. Men have gone down to the gutter and, unfortunately, have been still allowed to remain on the roll. Such a justice of the peace who wrongfully issued one of these warrants could be punished only by the removal of his name from the roll. Justices of the peace for the Commonwealth may be selected with greater care than has been exercised by some of the States Governments. It may fairly be argued that this is a proposal to place in the hands of magistrates over whom we have no control the right to take a very serious action:. I ask the Minister to agree to confine this power to stipendiary magistrates.
– That would mean far too great a limitation. A stipendiary magistrate is frequently engaged in Court, and is not always available to carry out an executive act of the kind mentioned in this provision.
– In some cases such a justice of the peace might be induced for half-a-crown to issue a warrant, enabling a constable to go into a man’s house, without any justification whatever.
– Any one who authorized such an unjustifiable act might be liable to damages.
– The clause provides that the justice of the peace is to be “ satisfied by evidence “ that there is reasonable ground for taking action. Evidence that would not convince a child might be quite sufficient for some justices of the peace. The clause is an objectionable one. It empowers a justice of the peace to authorize any one to enter any place to search for books which are believed to be pirated.
– A justice of the peace’ may sign a warrant taking away a man’s liberty.
– Is it desirable that their power be extended in the manner proposed ? The existence of pirated books has not’ to be proved. I think that this provision wilt present great opportunities for black-mail. Why not make it necessary to satisfy two justices of the peace?
– Such a provision would make it difficult to administer the measure.
– I have been told that justices of the peace are as plentiful as. blackberries. The person whose house is entered will have no remedy for the trespass. I raise my voice in protest against the rushing through of legislation like this. It is going too far to confer a power of this kind on justices of the peace.
– Does not the honorable member think that his statements are an insult to the whole body of justices?
– No. I do not say that all justices of the peace are unworthy persons, but it is well known that it does not prevent a man from going to the dogs to make him a justice of the peace, and the existence of a very few unworthy members of the body of justices is sufficient for my argument. I move - ,
That the words “ Justice of the Peace,” line 1, be left out.
The amendment, if carried, will leave a. blank in the clause, and I shall leave it to the Minister to insert “ stipendiary magistrate “ or “ two justices of the peace.”
– I ask the Committee to reject the amendment. Justices of the peace already have tar greater powers than those conferred by this clause.
Clause agreed to.
Clause 54 agreed to.
Clause 55 (rower ot owner of performing right to forbid performance in infringement of his right).
Mr. CONROY (Werriwa).- This clause justified us in objecting to the extreme power conferred by clause 13. I ask the Committee to consider how this provision might be used by those interested in one dramatic organization to work injury to another which was playing in opposition to it. We know that it is no uncommon occurrence for the same idea to occur to two literary persons simultaneously. An author may prevent the dramatization of his works, but it might happen that the dramatist had written a play whose central idea was the same as that of a novel which he had never read. That play might have been secured bv a dramatic company, and those interested in another dramatic company, seeing that it would possibly be a great success, might buy the right of dramatizing the novel, and then proceed to take out an injunction restraining the performance of the play. Of course, they would wait until the last moment before doing this. That was done here only a few months back.
– But they would be compelled to show cause, and if they could not show just cause would be liable to a penalty oF ^20.
– A penalty of ^20 would not hinder a man from taking a course which he knew would damage his rival, to the extent of some thousands of pounds.
– The Court would not grant an injunction without evidence.
– No ; but it might be verv difficult to prove that there was no connexion between the play and the book, t think that we are going too” far, and I protest against the clause passing in its present form.
Clause agreed to.
Clause 56 agreed to.
Clause 57 (Request to police to seize pirated books and works).
Mr. CONROY (Werriwa). - It seems to me that we are making too many restrictions in favour of authors, and are altogether losing sight of the public interests and the rights of the great mass of the people.
Mr. GROOM (Darling Downs- Minister of Home Affairs). - In Great Britain they found that cheap pirated copies of books were being imported from the Continent and sold by hawkers in the streets. The clause enables the police to seize such works.
Clause agreed to.
Clauses 58 to 61 agreed to.
Clause 62 (Importation of pirated works).
Mr. CONROY (Werriwa). - I do not know what has been done in the way of declaring what are pirated works.
– They are defined in the interpretation clause.
– Suppose that an assignee says that a book is a pirated work, are we to take his declaration, when his object may really be to injure some one whose claim to it is better than his own ?
– The question is one of fact.
– I submit that the fact should have to be proved in the ordinary way before a court. However, the Committee seems determined to pass the Bill holus-bolus, without giving that consideration to its provisions which they ought to receive.
Clause agreed to.
Clauses 63 to 73 agreed to.
Clause 74 (Rectification of Register by the Court).””
– I wish to know from the Minister, authoritatively, whether, if the Registrar refuses to give the author the benefit of copyright, on the ground that his publication is seditious or libellous, he may be taken to the Supreme Court under this clause?
Clause agreed to.
Clause 75 agreed to.
Clause 76 (Delivery of books to Registrar).
Mr. CONROY (Werriwa). - I should like to know whether the rights of the States to have delivered to them copies of the works proposed to be copyrighted will be affected by the clause?
– The existing rights of the States are not taken away. ,
– So far the State Parliamentary Librarian has always been entitled to have delivered to him a copy of the book proposed to be . copyrighted, and I want to know whether that right still exists. The question in my mind is as to whether the power given to the Federal Registrar by implication takes away that now conferred upon the States.
– The rights of the States are not interfered with, because nothing in these provisions is inconsistent with the existing conditions.
– Are the volumes now furnished to the Parliamentary Library part of the performance of copyright conditions ?
– Yes, I think so.
– In that case, the State right would be superseded.
– Newspapers are dealt with under States Registration Acts.
– Yes ; but I do not think any one registering under the Bill need send a copy of his work to the States authorities. I do not argue whether that is desirable or otherwise. But the matter is one which should have received attention at the hands of honorable members. Some of the States may consider that they should still have copies of new works supplied to them. Of course, if that right were preserved, an author would have to supply three copies instead of two, and it is a matter for consideration whether the advantage gained by the State would compensate for the disadvantage to the individual. Some books are exceedingly valuable, and the author should not be exploited to any further extent than may be necessary to comply with reasonable requirements. If the existing rights of the States are preserved, they will be entitled to direct an author to send in, not one copy, but ten, or even to send copies to all the principal Mechanics’ Institutes. I cannot conceive that any such power would rest with a State Parliament, and, therefore, it appears to me that the existing rights will be abrogated, and that all an author will be required to do will be to furnish two copies to the Federal Registrar.
Clause agreed to.
Clauses 77 to 80 agreed to.
Title agreed to.
Bill reported with amendments.
Motion (by Mr. Groom) agreed to -
That the Standing Orders be suspended To enable the Bill to pass through all its remaining stages without delay.
Motion (by Mr. Groom) proposed - :
That the Bill be now read a third time.
Mr. CONROY (Werriwa). - I wish to enter my protest against the manner ira which this Bill has been rushed through. Those” who have pointed out its defects have been unable to carry any of their amendments. The more I look at the measure the more I feel that its consideration should have been deferred until next session. In four of the States, representing five-sixths of the population of the Commonwealth, wc have extended the period of copyright from fourteen to fortytwo years, and we have provided no public safeguards. Need I remind honorable members that originally these rights were granted only because it was thought that the great mass of the people ought to enjoy all the advantages which were conferred by every new discovery. It was not until after the lapse of many years that it was thought that the growth of mechanical genius would be better stimulated by allowing an inventor to enjoy for a specified period the fruits of his own industry. Under this Bill, if a man has copyrighted a work fourteen years and one month prior to the commencement of the Act, he wilt enjoy no protection whatever; but the individual who has copyrighted a work thirteen years and eleven month’s” prior to its commencement will be granted an extension of that period to forty-two years. I should like to know what is the reason for such an arbitrary proceeding on our part. There is no recognition of the rights of the public in this Bill. Under it we have granted to individuals rights which did not previously exist, and I say that the measure should have received more consideration than has been accorded to it. If it had not been dealt with at the fag-end of the session, the Committee would have declined to approve of it. Of course, it is impossible for me to foresee all the difficulties that will arise under it. I do not know, however, that the Bill has been ill-considered and ill-conceived. Like the Patents Act, which received some consideration, it will require amendment next year. Under that Act difficulties have arisen, despite the fact that the Bill was considered. How much more numerous are they likely to be under this measure, to which no serious attention has been given ?. I wish to place upon record my protest against the Bill being passed in its present form.
Question resolved in the affirmative’.
Bill read a third time.
Debate resumed from 16th December (vide page 7170), on motion by Mr.Groom -
That the Bill be now “read a second time.
– I suppose that we all recognise that the time has come when an attempt should be made by this House to arrive at a settlement of this very vexed question. In the first place, 1 desire to enter my protest against this Bill being brought forward at the fag-end of the session, when so many honorable members representing distant States have left for. their homes, and will not return. To ask us to proceed with it as if it were a formal matter is to travesty the proceedings of Parliament.
– The Bill is only brought forward to please New South Wales.
– If that is the idea underlying its introduction, the sooner the Prime Minister understands that the consideration of the measure should be deferred till next session the better.
– It is the old policy of “ win, tie, or wrangle.”
– The PostmasterGeneral takes no interest in this question.
– I take more interest in it than does the honorable and learned member.
– Surely the PostmasterGeneral can appreciate a jocular allusion?
– But jocular remarks, when they appear in cold type, frequently look awkward, and they are sometimes used against one.
– At the present stage of the session we ought not to proceed with this Bill. It is perfectly dear that, in the absence of a large number of honorable members, it cannot receive that amount of consideration to which it is entitled. In my opinion, the warmth that has been engendered by some observations which have been made in another quarter will tend to preclude that full and serious discussion which would otherwise be bestowed upon it. I have no hesitation in saying that, when the selection of Dalgety was first proposed, at least half-a-dozen honorable members voted for it, not with a view to securing a final settlement of the question, but to allow of its further consideration.
– Name one.
– I do not feel at liberty to do so, otherwise I could certainly name at least half-a-dozen. The Postmaster-General must be aware that a great many honorable members do not approve of the site that has been chosen. Even its warmest admirers cannot urge that it fulfils all the requirements of a Federal Capital Site. If they do, I am quite satisfied that a residence of a few months there will disabuse their minds of that illusion.
– I can produce a statement by the honorable and learned member that it is a very nice place.
– I said that it was less objectionable than some of the other sites which were proposed. I am sure that another site would have been chosen if it had not been for the feeling which is entertained by honorable members that: they ought to support the Prime Minister, in any altercation that he mav have with’ the Premier of New South Wales. If it were not for that fact, there would be a distinct majority against the selection of Dalgety.
– Has not the honorable and learned member got a distinct majority now?
– I believe so.
– Then why talk? Let us divide.
– The PostmasterGeneral knows that at the present time, apart from pairs, eighteen votes could not be registered upon either side. There are not thirty members present out of the whole House.
– There were thirty-five votes recorded in the last division.
– The honorable member forgets that that was inclusive of pairs.
– We can secure the same number again.
– No, because the PostmasterGeneral will not allow pairs to be given.
– I am paired.
– I am quite prepared to take a division, and let every honorable member in the House be accounted for.
– I am sure that the Postmaster-General is not. Considering the number of pairs that have been provided, it is impossible to get eighteen votes cast upon either side. The last division which took place confirms my statement. Upon that occasion we allowed pairs to four or five honorable members. It would be distinctly wrong to allow the House to decide a measure of this importance when less than a quarter of its members are present.
– I can produce more than eighteen live votes, and account for eighteen dead ones.
– The PostmasterGeneral cannot do so. I have been through the list very carefully, and the honorable member for Bland fully concurs in my opinion. I mention his name, because it has been stated that he was endeavouring, for purely electioneering purposes, to arrange a compromise in favour of the selection of Lake George. I decline to believe that. When I asked the honorable member for Bland three years ago to support that site, he wasquite ready to do so. One of the reasons why he did not vote with me upon that occasion was that, like the right honorable member for East Sydney, he realized that there was no chance of that site being selected. The honorable and learned member for Illawarra and myself stood almost alone upon this question. What are the circumstances? I am satisfied that the selection of Dalgety does not truly represent the wish of the majority of the House. At the time that the choice was made, many honorable members voted for it only as a means of deferring the settlement of the question. I honestly believe that there is an absolute majority in this Parliament opposed to the site.
– The honorable member’s leader said that he would resist any attempt to depart from that decision.
– Theright honorable member for East Sydney was then speaking as the head of the Government of the day. Whilst occupying that position, he was bound to carry out the will of the Parliament. An Executive could not set up a law unto itself. His position was very similar to that of the honorable and learned member for Darling Downs, who, when the selection was under consideration, spoke strongly against Dalgety; but, as a Minister of the Crown to-day holds that he must respect the decision of the Parliament. As a member of the Executive, he has to support, not that of which he approves, but that which the Parliament has determined upon.
– If that rule is to apply, the supporters of Dalgety will be able to claim the vote of the Minister of Trade and Customs.
– But when the honorable member for Hume joined the present Ministry, I understand he stipulated that he should be allowed to discuss the question of the Capital Site unfettered by the Cabinet considerations, and that his leader agreed that he should have that liberty.
– Then it is not a Government question?
– It is not, so far as the Minister of Trade and Customs is concerned, and it seems to me that had the point occurred to the Minister of Home Affairs when he took office, he would have made a similar arrangement.
– If the honorable and learned member’s view of the position is correct, other votes will be affected.
– But even if the right honorable member for East Sydney was bound when he made the statement to which the Postmaster-General has referred, to carry out the intention of the Parliament, we must recognise that a new situation now confronts us. At that time New South Wales had not expressed its disapproval of the site.
– Was Mr. Carruthers then Premier of New South Wales.
– I cannot sayfor the moment, whether or not he was.
– He was Premier of New So uth Wales when the present Government took office.
– That is so. Atall events, when the present leader of the Opposition said he would resist any attempt to depart from the decision of the Parliament, New South Wales had not made any protest against the selection of Dalgety. As that State refuses to assent to the selection of Dalgety, the Prime Minister, even if he had previously supported the selection of that site, would now be justified in saying : “ I am not! disposed to oppose the wishes of one-third of the people of the Commonwealth, and therefore I shall endeavour to secure another selection which will be more in accordance with their desire.” New South Wales went out of its way, so to speak, to allow the Federal Parliament to choose a site, and, in so doing, yielded up what, in my opinion, was a right that it undoubtedly possessed. But since it will be called upon, to hand over a large area, surely it has a right to say to this Parliament : “ We do not think the Commonwealth ought to ask us to grant this site.” When it takes up that position, surely it should1 not be said that it is. adopting a highly unfederal attitude. We know that if the Capital becomes established at Dalgety. New South Wales will be called upon at once to construct about thirty-two miles of railway, which, at the present time, at all events, will be unpayable. In these circumstances, can it be reasonably contended that the wishes of that State should not be considered by us? We should be thankful to the State Parliament for having pointed out to us that the territory is not a very suitable one. Instead of that, many honorable members appear to consider that it has taken up a disagreeable stand,i and the question seems to have resolved itself into one of whether or not we should interfere with or resent the action taken by Mr. Carruthers. That is not a reasonable position for this Parliament to assume. The agreement arrived at by the Premiers in conference was that the Federal Capital should be a reasonable distance from Sydney. It seems strange that, in previous discussion, that point has been almost waived. The honorable member for North Sydney was the only one who, during the debate on the Seat of Government Bill, impressed upon the House the full significance of that decision, but many honorable members - and I dare say that I was amongst them - were so busily engaged in lobbying and endeavouring to secure votes for certain sites that his arguments did not receive the recognition which they deserved. Can it be said that to establish the Capital on the borders of New South Wales and Victoria, would be to comply with the decision pf “the Premiers’ Conference, that it should be a reasonable distance from Sydney? I am inclined to believe that if honorable members had realized the full effect of that decision, they would not have attempted to select a site off the main railway line between Sydney and Melbourne. Apart from the unfavorable climate, the character of the country, and its lack of railway communication, there are many other reasons why Dalgety should not be finally selected. We know that it is improbable that many public servants will be stationed at the Capital,, and that it is unlikely that we shall erect a city. I am sure that there is no desire to centralize the Public Service in the Federal Capital at the expense of the Commonwealth. Another point is that if the Capital be established at Dalgety, a delay of half-a-day must occur in the receipt and transmission of our mails. That alone should be a sufficient ground for a reconsideration of the question now that party disputes have passed away. As a matter of fact, many honorable members were actually preparing to reconsider it when a certain action was taken last week. In New South Wales it is hard to say what site would have been selected as the result of that reconsideration, but I am satisfied that, but for a little warm feeling that has lately been engendered) the decision of the Parliament would have been altered. It would be most unwise, however, for the House to stand by its former decision. We have a clear intimation that the Parliament of New South Wales does not intend to agree fo the selection of Dalgety. It is determined by every means that lies in its power to resist the establishment of the Capital there. Tha* being so, is the question at issue of such vital importance to the other States of the Union that we should deliberately determine to disregard the wishes of a State representing one-third of the people of the Commonwealth rather than forsake the decision arrived at? In what way would the rights of the other States be infringed by a fresh selection being made’? I am satisfied that the bulk of the people of Victoria would have had no objection to the selection of” Sydney as the Federal Capital, but under the Constitution such a selection is now impossible. That being so, we should seriously consider whether we ought not to select a site which would be more agreeable to the people of New South Wales. If we adopted that course no one could say, that_ we had backed down. Surely there could be no objection to our saying to the Parliament of New South Wales, “Whilst fully recognising the responsibility of the Commonwealth in this matter, we should like to know what site would be most acceptable to you.” If a question were put to the State Legislature in that form, I believe the answer would be that the Capital should be somewhere on the main line between Melbourne and Sydney. Having regard to the importance of the question of the means of communication, I fail to see how any other decision can be arrived at. lt would be a serious matter, from the stand-point of Victoria, if the Capital were established at Dalgety, for practically all her leading public men would be precluded from entering this Legislature. In attending there, they would Be further away from their homes than they would be if the Capital were established in Sydney.
– It would be equivalent to going half-way to Newcastle.
– Yes. In point of time they would be still further away, because the Cooma line is only a branch line, on which trains cannot be run at as high a rate of speed as that at which they are run on the main line.
– The Railways Commissioners pf New South Wales have estimated that it would cost ^120,000 to strengthen the Cooma line sufficiently to meet the requirements of Federal traffic.
– Yes ; and it would cost another ,£150,000 to extend it to Dalgety.
– Less than that.
– Not very -much less. Surely we should not ask New South Wales to go to this large expenditure unnecessarily. Is it wise, or showing a Federal spirit, to insist upon Dalgety, when the population of New South Wales, which numbers one-third of the population of the Commonwealth, is opposed to the adoption of that site? It is well known that the State joined the Union only because the representatives of the other States agreed with her representatives that the Federal Capital should be within her boundaries. That arrangement was made five years ago, and the Parliament is still sitting in Melbourne. At the present rate of progress, no final itv will ever be reached, and in any case, it must be nearly ten years before the Federal City can be made fit for occupation. What injury would be done to the people of the other States if we were to meet the wishes of New South Wales in regard to this matter?
– As a democrat, I am willing to submit the decision of the question to a referendum of the people of Australia.
– The bulk of the people are not in a position to give a wellconsidered vote on the subject, because they know little or nothing about the merits of the various sites.
– It is an old conservative argument to say that the people know nothing.
– I think that no man who is ignorant of a subject should be asked his opinion in regard to it.
– The electors would probably vote for Melbourne or Sydney, and would be most likely to choose Sydney.
– There would have to be an alteration of the Constitution before either of those cities could be made the Federal Capital, and it would be hard to persuade the people of New South Wales that any site within the borders of their State would be selected, seeing that, although the Constitution clearly sets forth that the Federal Capital must be within the State, the Parliament is still meeting in Melbourne.
– The people of New South Wales are blocking the settlement of the question
– They have suggested half-a-dozen sites for consideration, but this Parliament has declined to consider those sites, and has insisted on choosing a site which will require the expenditure of a very large sum of money to make it accessible. That expenditure will fall upon the people of New South Wales.
– Gannett the Commonwealth build its own railways ?
– In any case, the people of the Commonwealth would have an unnecessary burden to bear.
– I should like to have the matter settled. I wish to get out of Melbourne.
– Then why not accept one of the sites offered by the Government of New South Wales?
– Because those sites are being pushed up against our faces.
– The honorable member is mistaken. I ask him to read the whole of the speech of the Premier of New South Wales, and not to be content with the state ments which have been picked out by the newspapers.
– He said that they had not begun to fight yet.
– He was referring to a fight as to where the Federal Capital should be, and is surely entitled to express his views strongly on the subject. If he thinks that Lake George or Yass would make a more acceptable site than Dalgety, why should we condemn him for saying so? If the honorable member for Melbourne wishes the question to be settled, he should “vote for one of the sites which have been offered to us by the Parliament of New South Wales. He must see that the Federal Capital should be near the trunk line of railway, so as. to be easily accessible from all the States. The expense of giving access to Dalgety by means of a railway would be very great. Even those who voted for Dalgety must feel that it is not a suitable place for the Federal Capital, because of its distance, its inaccessibility, its climate, and for other reasons. I trust thai this Parliament will show that it is a Federal. Parliament, and be willing to compromise with the State, instead of setting itself in opposition to it. If the matter comes to a vote, I shall oppose the retention of Dalgety; but, in view of the lateness of the session, and the fact that many members have left for their homes, I trust that the measure will, after some further discussion, be postponed until next year, when we can take a full vote, and when, I trust, we shall arrive at a satisfactory settlement. No doubt a great deal of heat has been engendered by the speeches in which the Premier of New South Wales has asserted the just rights of that State; and, unfortunately, the question, to some honorable members, seems to have resolved itself into this - Shall we support the Premier of New South Wales, or shall we follow the Prime Minister? Even if Dalgety were a suitable site, the fact that the people of New South Wales are opposed to its acceptance is a reason why this Parliament should reconsider its decision. I trust that honorable members will not allow themselves to be influenced by what I may call partizanship, but will recognise that the Premier of New South Wales has merely asserted the rights of that State, and that, if we are to show the true Federal spirit, we must select a site which will be acceptable to the great body of the people of the Commonwealth.
– I hope that honorable members, in approaching the re consideration of this question, will entirely disregard all the proceedings which have led to so much irritation. Whilst I recognise that the Premier of New South Wales is perfectly entitled to take up the attitude that he has adopted in asserting the rights of the State, it is rather unfortunate that he has. taken his action at a time when there seemed to be some prospect of arriving by consultation at a satisfactory settlement of the Capital Site question. I trust that any feeling which’ may have been aroused by his somewhat precipitate action, taken, I feel sure, without knowledge of the consultative proceedings among Federal members for securing a satisfactory understanding, will be allowed to evaporate, and that honorable members will endeavour to arrive at a settlement fair to all the States and beneficial to the Commonwealth. I fear that in years to come the selection of the Dalgety site will be looked upon as a monument to the stupendous imbecility of this Parliament. If .some honorable members had been a little more familiar with the characteristics of the site as to soil and climate, and other conditions. they would1 have agreed that it was, perhaps, one of the most unsuitable that could have been selected. It may be a very good spot at which to raise polar bears, but is not to be recommended as a place of residence for persons who have been accustomed to a warm and genial climate. The country immediately surrounding Dalgety is of an utterly inhospitable character. lit is desolate, rockstrewn, and practically bare of timber. Even the reports of the surveyors who originally reported on the site show that the vegetation is very stunted, and one passage in their report reads as follows : -
Even on the river banks the site is almost entirely destitute of timber, and this does not suggest the idea that parks and gardens will flourish.
Surely we should regard the facilities, which the site will offer for making parks and gardens. The site is also unsuitable in other respects. Dalgety is distant from Cooma 30 miles. There is a very good road between the two localities
At the present time, but the cost of a railway would be considerable. Dalgety is distant from Melbourne about 240 miles, and from1 Sydney over 330 miles. A railway to connect the site with Melbourne would have to be constructed from Bairnsdale, via Bendoc, at an estimated cost of about £1,500,000. The Cooma to Dalgety railway would cost about £312,000 ; and in order to connect the Federal City with all the States capitals - except Hobart, which, of course, cannot be connected by rail - an outlay of £8,483,683 would be involved. In addition, the sum of £120,000 would have to be spent on the Cooma railway to make it a first class line. Then, supposing that the terrilory were acquired other than by grant from the Government of New South Wales, a large expenditure would be incurred. The greater part of the Dalgety area consists of undulating treeless country, with frequent outcrops, of granite, and any one who visits the site must be struck with its inhospitable appearance. The occasional tufts of grass are bare on the one side, and are banked up with sand on the other. This, circumstance, taken in conjunction with the fact that buildings are shored up on the lee side with huge pieces of timber, indicates that it is absolutely a very exposed part of the country. The average temperature in summer is between 70 and 80 degrees, and I have rarely heard1 of a temperature exceeding the higher of these registers. I have been at Dalgety in midsummer, when a heat-wave has been passing oyer the State, and the thermometer has registered 106 degrees in the shade at Sydney. And yet I have been absolutely frozen whilst travelling, in a coach at night, and glad to avail myself of the opportunity to sit alongside a big log fire and thaw myself out on New Year’s morning. I can quite conceive that the climatic conditions in midwinter are anything but agreeable. Mr. Scrivener says, in the latest report now before us -
The area of 100 square miles, as designed, embraces the land most suitable for city and suburban buildings, but within an area so small no serious attempt can be made to protect the water supply, neither can any source be embraced. It must be regarded merely as a city site.
That, of course, relates only to an area of 100 square miles, and the argument of -course is used to urge the acquisition of a larger area of territory, but it is not reasonable to expect the Government of Vew South Wales to grant such a large tract of country as has been suggested. Coming back to the question of cost, I find that, if the Commonwealth were to obtain 900 square miles of country, which is the area they appear determined to secure, the purchase-money would amount to £1, 216,000, according tq Mr. Scrivener’s estimate of value. Then, again, the approximate cost of building a breakwater at. Twofold Bay, which some honorable members hope to see included in the Federal territory, would amount to £1,500,000, probably more. The figures I have quoted as being required for railwayconstruction, together with the amount necessary for the construction of the breakwater at Twofold Bay, and the amount that would have to be devoted to the purchase of the territory, represent a total of £11,949,683. Then, again, I am credibly informed that the cost of the railway toconnect Dalgety with Twofold Bay would amount to at least £6,000 per mile, or a? total of £750.000. to which has to beadded the sum of £120,000 new expenditure on the existing Cooma line. ‘ So that Over £12,000,000 would have to be expended before one shilling could be spent upon the work of erecting the Capital. Do honorable members think the State of” New South Wales will expend large sumsof money in giving railway access to territory they do not wish to grant? I would” point out to honorable members who voted” for the Dalgety site because they considered that it was important to have accessto the sea, that an opportunity presentsitself to secure a port much more suitableand more easy of access. All the country at the back of Jervis Bay, extending tothe railway line connecting Sydney and1 Melbourne, is sparsely populated, and I have no doubt whatever that a large portion of that territory would be readily granted by New South Wales. In fact, I have little doubt that a much larger area would be available there, and at .considerably less cost than at Dalgety. And JervisBay, as a port, is certainly infinitely preferable to Twofold Bay in every respect ; but I do not say I am prepared to advocate the surrender by New South Wales of” any port which may be used- to divert trade from the port of Sydney which must, from its facilities and geographical position, ever remain the principal port of Australia. It must be remembered that the people of New South Wales accepted the Constitution Bill because they expected that they would derive some substantial benefit from having the Federal Capital located within their borders. Sir Edmund Barton, during the Federal campaign, went so far as to say that the Capital would be located in such a position as to confer on Sydney substan- tial benefits in the matter of trade. We have departed from the spirit of the bond so far as that element is concerned. Dalgety is not within a reasonable distance of Sydney. It is true that it is beyond the 100-mile limit, but it is also almost as far away from that limit as any site possibly could be. The erection of the Federal Capital at Dalgety would confer no benefit upon New South Wales. In this connexion I wish to direct attention to the resolution that was passed at the Premiers’ Conference with reference to the Federal Capital Site question. It reads as follows: -
It is considered that the fixing of the site of the Capital is a question which might well be left to the Parliament to decide ; but in view of the strong expression of opinion in relation to this matter in New South Wales, the Premiers have modified the clause, so that while the Capital cannot be fixed at Sydney or in its neighbourhood, provision is made in the Constitution for its establishment in New South Wales, at a reasonable distance from that city.
I admit that a great difference of opinion may exist as to what would be a reasonable distance from Sydney; but, at the same time, the words of the resolution have to be read in conjunction with the provision that the Capital shall be situated not less than 100 miles from Sydney. It might be fairly concluded that the site would be selected as near as possible to Sydney, outside the 100-mile limit. I understand that that limit was imposed primarily, for the purpose of excluding the choice of another site, which was in much favour - I refer to Moss Vale. Having excluded that site, I do not think it ever occurred to those who were responsible for the insertion in the Constitution of the 100 miles limit that a site should be chosen which would be practically inaccessible from Sydney. And the right honorable member for East Sydney, who was, a party to the agreement, has assured us that it was intended that the site should be somewhere near the 100-mile limit. I am quite sure that had the people of New South Wales ever dreamed that such a step as going to the extreme confines of the State was contemplated they would not have voted for the acceptance of the Commonwealth Constitution. Sir Edmund Barton took special pains to impress upon the people of Sydney that they would derive a substantial benefit from communication with the Federal Capital. He led them to believe that the trade from that Capital would go to Sydney. They were misled by these representations into voting for a proposal which under other circumstances they would not have supported.
– Who misled them ?
– Sir Edmund Barton.
– I do not think so.
– Undoubtedly he did. That fact is upon record. I certainly heard Sir Edmund Barton make a similar statement at a meeting which he addressed in Sydney. He assured his hearers that, although Sydney had been excluded for a variety of reasons, a site would be selected in a locality which would confer upon that city a substantial advantage in the way of trade. That advantage cannot be conferred by the selection of Dalgety. For all practical purposes the Seat of Government might just as well be at Timbuctoo. Dalgety appears less to conform to all those requirements which should be our first consideration than any other site save one that we have been asked to consider. In speaking upon this matter, the honorable member for Kalgoorlie cast some doubt upon the reliability of the printed copy of the memorandum to which the Premiers of the six States attached their signatures. He even went so far as to suggest that the copies which had been circulated in this Chamber, printed under authority of the New South Wales Government, contained substantial alterations from the original document. So far from that having been the case, I find upon comparing them that no alteration whatever has been made in their wording, and consequently his charge falls to the ground. The Minister of Home Affairs, in introducing this Bill, declared that the previous Premier of New South Wales had refused to take any part in the selection of the site, because he regarded that as a matter within the jurisdiction of the Commonwealth Parliament. Even admitting that that is so, it will be seen that Sir John See’s remarks referred not to the acquisition of Federal territory, but to the selection of the site. I do not think that it has ever been contended that it is the province of New South Wales to determine the site. What I complain of is that the Government did not ask that State to grant us the necessary territory before this Parliament selected the site. I have always maintained that the proper method of procedure was first to negotiate with New South Wales for the grant or acquisition of territory, and then to choose the site. I would also point out that Sir John See did not speak with the authority. of Parliament upon this question. He did not consult the Legislature in any way. Subsequently the Government of which he was the head was defeated, and its successors have taken up a definite attitude upon this matter. The present Government of that State may be taken to more correctly represent the feeling of the people of New South Wales than did the See Government.
– Was the question of the Federal Capital before the people at the last election ?
– Only incidentally. The question of the Federal Capital certainly was mentioned.
– It was never mentioned.
– I beg the honorable member’s pardon. Whilst it was not an issue of the election, there was some interest exhibited in it. There were very few candidates who entertained the slightest idea that the Seat of Government was to be located at such a remote distance from any centre of civilization as is Dalgety. I am absolutely certain that if an appeal were made to the people of New South Wales to-morrow they would unanimously decide against the selection of that particular locality.
– The honorable member is indulging in pure political prophecy.
– I have admitted that. That there is a considerable amount of feeling upon this question in New South Wades is evidenced by the action which the State Legislature took only a few days ago. It was a most unfortunate circumstance that, owing to some reasons with which we are not familiar, the closure had to be applied in order to force the resolution submitted byMr. Carruthers through the House. I particularly deplore the action of the New South Wales Parliament in that connexion, because just at that period there seemed to be a prospect of the Federal Parliament arriving at some satisfactory solution of the difficulty which had been created. I fear that the action of the Premier of that State, justified as I admit it was in the circumstances as he understood them, may prejudice the calm consideration of this matter, by reason of the irritation which it has engendered in some quarters. Some honorable members have gone so far as to say that they would have reversed their votes upon this question if it had not been for the language in which Mr. Carruthers, had indulged. Well, all I can say is that it savours of pettiness and childishness, and is not worthy of men dealing with large national questions. We ought always to consider, as far as we can, the feelings of the States in matters which peculiarly affect themselves. Of course, the selection of the Seat of Government is a question which is of interest to the whole Commonwealth, but it particularly affects New South Wales, because that State has to cede a portion of its territory to the Federation. The recognition of the right of New South Wales to have the Federal Capital within its borders really carried with it a recognition of the view that it was peculiarly interested in the question of its precise situation. Some of the representatives of New South’ Wales therefore think that they are well within their rights in calling attention to the feeling that exists amongst a large section, if not the majority, of the people of New, South Wales.
– The honorable member should not apologize; let him speak out strongly.
– I certainly am not apologizing. I say that the people of New South Wales are well within their rights; that they feel very strongly in regard to this matter, and that we should pay some deference to the opinions of those who are most vitally affected by this question, since New South Wales will have to give up a large portion of its territory.
– Every deference has been shown.
– I beg to differ from the honorable member. That deference to which they are entitled has not been shown. Judging by the feeling which prevails throughout New South Wales, that is the view which the people themselves take of the action of. this Parliament. The Bill itself seems to recognise the right of New South Wales to be consulted in the matter of the territory.
– The Bill requests what the Act demands.
– That is the exact position. It is set forth that the Bill is for -
An Act to determine more definitely the Seat of Government of the Commonwealth in the neighbourhood of Dalgety, and the territory there within which it shall be, and to provide for the grant to, and acceptance by the Commonwealth of the territory. …
The Bill deals throughout with the “ granting” of this territory by New South Wales. Why could we not have asked for a grant of territory prior to our selection, of the site? Had we done so, we should have avoided the complications that have since arisen. We are now proposing to hark back to a position which should have been taken up at the first instance; but we are still on the wrong road. Clause 3 provides that -
The Minister is empowered to obtain, and the Governor-General is empowered to accept, on behalf of the Commonwealth for the purposes of the Seat of Government, a- grant by the State of New South Wales to the Commonwealth of the territory described in schedule A to this Act to the full extent to which the territory can be granted by the State within the meaning of section one hundred and twenty-five of the Con.stitution
Schedule A shows that this is a reference to the Dalgety site. In view of the decision of the Parliament of New South Wales not to grant that site, why are we tto.w considering a Bill requesting them to cede it to ‘us? It seems to me that we are only making the position worse, instead of better, for ourselves. Both Houses of the State Parliament have decided against a grant of this territory. If this Bill be passed, and the people of New South Wales still refuse to grant this territory, another dead-lock will arise unless we are going to take some assertive action on behalf of the Commonwealth. Is that the intention ? That is a point upon which the House ought to be enlightened’. In the event of the Parliament adhering to its decision to establish the Capital at Dalgety, is this Government going to send an armed force into New South’ Wales to take possession of the territory?
– If they went there, they would never come back.
– If the armed force went to Dalgety all that we should find of them would be their petrified bodies, and the incident “would be handed down to posterity as an example of the stupendous folly of this Parliament. It is to be regretted that negotiations for a peaceful settlement of the question - negotiations that might have been satisfactory to all parties - were broken off, and that we are now asked to consider a measure which may be taken by the Parliament and people of New South Wales as another attempt to flout their wishes. They would certainly be justified in taking that view, since they have definitely refused to grant’ this territory to us’. To proceed with the consideration of a Bill to acquire that territory in spite of the objections of the people of New South Wales seems to be an act of intentional discourtesy to them. I can only hope that the word “’ Dalgety “ will be omitted from the Bill, and that a more suitable locality will be substituted - one which will be more in consonance with the spirit of the compact, and more agreeable to the desires of the people of New South Wales. When such a selection has been made, I trust that the Federal Parliament will be able to approach the people of New South Wales, through the State Legislature, in a more conciliatory spirit, so that some arrangement may be arrived at which will be mutually satisfactory. I earnestly hope that, whatever we do in the settlement of this question will be in the direction of promoting harmony and good feeling among the people of all the States.
– What is the objection to Dalgety ?
– I have already pointed out that it is a most inhospitable bract of country ; that it is practically treeless ; that the surveyors, in their early reports, pointed out that, not eve a along the banks of the rivers was there much sign of vegetation; that all hope of cultivating, parks or gardens there would have to be abandoned; and that, from these .points of view, a less suitable site could scarcely be selected. I have also alluded to its inaccessibility, and I would add to the objections that I have urged on that score, that those who favour its selection, because they believe it” will have access to Eden as a Federal port, disregard the great engineering difficulties in the way of constructing a railway between the two points. There is a sheer descent of several thousand feet, and it is only by a most circuitous route that Twofold Bay can be reached from Dalgety.
– It is only 2,500 ft. above the level of the sea.
– But there is a great difference between a gradual and a sheer descent of 2,500. If honorable members refer to the map attached to Mr. Scrivener’s report they will see that the route which must be taken to the sea covers a distance of 125 miles. The construction of a railway along that route would, I am informed; at a low estimate, cost about £6,000 per mile.
– There would be no immediate occasion to construct the railway to which the honorable member refers. That would be a matter for the future.
– In discussing the Seat of Government Bill, several honorable members laid great emphasis on the need of securing territory which would include Twofold Bay as a Federal port.
– Does the honorable member believe that New South Wales would grant Twofold Bay as a Federal port?
– I do not think that it would, although, even if they did, it seems to me that it would be of little service to Dalgety. On only one . side of the harbor is there anything like safe anchorage for vessels of fairly large tonnage, and even that is unsuitable for vessels of great draught. It is almost an open roadstead. When there is an easterly or south-easterly swell running intoTwofold Bay, even vessels lying alongside the extreme end of the wharf which runs out from Eden on the protected side of the port roll to such an extent that many of their passengers often suffer from sea-sickness. The representatives of Western Australia, who urge that if Twofold Bay were a Federal port they would be able to travel by some of the fine inter-State steamers, and land almost directly at the door of the Capital, cannot know what sort of harbor exists there. If they did, they would dismiss such an idea from their minds. There is a limited area of harbor at Boyd Town, on the southern shore, which is sheltered from the south-easterly and southerly winds, but not from the north-easterly winds. ‘ On the other hand, the northern shore is more or less exposed to the full force of southeasterly gales blowing in from a stretch of ocean several thousands of miles in extent. To make the port a safe anchorage for vessels of fairly large tonnage, an immense breakwater would have to be run out from Boyd Point, and at the lowest estimate the cost of such a work would be £1,500,000. To those honorable members who think that the Federal Capital should have a port of its own, I would point out that JervisBay, which lies between Twofold Bay and Sydney, is a port much superior to Twofold Bay, while the country between it and the main line from Adelaide to Brisbane, passing through Melbourne and Sydney, contains several sites suitable for a Federal Capital. The geographical position of Sydney, however, is such that it must always be the great supplying and commercial centre of Australia. I hope that the Parliament will reconsider this matter, apart from all provincial considerations, and. in the interestsof Australia as a whole, and that honorable members will put aside their personal prejudices, and remember that their determination will affect future generations. I hope that the Postmaster-General, who appears to be so enamoured of the Dalgety site, will forget that he is representing a constituency containing a Federal site–
– Which is the honorable member’s site?
– I am not committed to any site, though I am prepared to say which, in my opinion, is the best of certain sites which may be mentioned. I should like a site to be chosen adjacent to the main trunk line of railway, and, for that reason, voted for Lyndhurst, which, although not on the main line, is close to a line which, had the Federal Capital been located there, would have become the main line, connecting the Capitals of the States. But in voting for Lyndhurst, although 1 indicated my preference for that site before the other sites then offered, I did not indicate my preference for it above any other possible site.
– Has the honorable member made up his mind as to which site he will vote for?
– I cannot make up my mind until I know what sites are to be offered to us. The Postmaster-General, in supporting Dalgety, is not supporting the best site in his electorate, because there are others which, from every point of view, are superior to it. The only recommendation of Dalgety seems to be its abundant water supply.
– I understand that the country surrounding Lake George is to be tacked on to my electorate. Does thehonorable member favour the Lake George site before the Dalgety site?
– Does the honorable member think that it is as good as the Lyndhurst site?
– I am not prepared to say in the absence of surveyors’ reports. I hope that Parliament, in coming to its decision on this matter, will be actuated by a Federal spirit, and will disregard anything that has been said in the New South Wales Parliament which may have hurt their personal feelings. Negotiations for the settlement of 4he question were proceeding in quite a different way before the matter cropped up there, and had it not been for the action taken we might by this time have reached a friendly decision. I do not think that the Federal Parliament will suffer any loss of dignity if it gives way in such a manner as to soothe the irritation of the people of New South Wales.
– I thought that that State desired to have the matter settled.
– I am sure that it does.
– Then let us settle it.
– Tt must be settled in the right way. While I regret the interposition of the Premier of New South Wales at this juncture, I acknowledge that lie was within his rights in the action which tie took, and that New South Wales is justified in asserting its claim to be consulted in (his matter.
– Would the honorable member be inclined to favorably consider the claims of Armidale?
– I think it is too far from the southern States.
– The first remark which I have to make is that I cannot understand why a Bill of so much importance - because every one must admit that it is of importance, both to New South Wales and, in a larger degree, to the Commonwealth - should be brought in at this stage of the session.
– If the Premier of New South Wales had accepted the Bill which we drew to meet his wishes it would have been laid before the House long ago.
– That Bill was not worth much.
– It was the Bill for which he asked.
– My view of the attempts made on both sides to bring this matter before the High Court is not by any means a complimentary one. I do not wish to say more than that. They have been singularly unfortunate. We are asked to deal with what is admittedly a vital measure in a House which is practically moribund. I understand that during the last two or three weeks the attendance in this Chamber has not been so numerous as it is at present.
– We had good attendances last week.
– I have been told by some of my friends that the attendance here today has been similar to those of the past three or four weeks. What a miserable spectacle the Chamber presented this morning, with only eight or nine members present ! I do not complain of their absence, because I think that, considering the exhausting labours which they have been called upon to perform, it cannot be wondered at that they are reluctant to remain here, and I should be the last to criticise them, because I am so often absent myself. It is regrettable, however, that we should be dealing with this measure at this period of the session, and if the Government can relieve themselves from blame in connexion with the matter, so much the better for them. Early in the session I asked them to let us deal with the measure in good time, so that we could give to it the consideration which it deserves. The Bill says that a certain territory, which it is attempted to describe - is hereby determined to be the territory within which the Seat of Government of the Commonwealth shall be.
According to the Constitution Act, the territory within which the Seat of Government shaLl be is a territory which has been granted to or has been acquired by the Commonwealth; yet we are solemnly passing a measure which declares that the Seat of Government shall, be in a territory which has not been granted to or acquired by the Commonwealth.
– That point was emphasized three years ago.
– And it crops up again in this latest attempt to settle the matter. Here is. a clause in a Bill which solemnly declares that the Capital shall be at some place where the Constitution declares that it cannot be, because the Seat of the Commonwealth Government can only be determined to be in territory which has been granted or acquired. It is only after the territory has been acquired! or granted that we can determine the Site.
– We are being asked to select a site in territory which the State Government has refused to grant.
– That is another and a very proper observation that might be made. Mv observation is a broader one, and is quite irrespective of that point. We are asked to pass a Bill which declares something that we cannot declare. We are legislating in the teeth of the Constitution.
– We passed a similar Bill last vear.
– That is very likely. We have done a lot of curious things. I say “ we,” because I do not separate myself from other members of the House. Section 1 25 provides -
The Sent of the Government of the Commonwealth shall be determined by the Parliament, and shall be within territory - we have already dealt with that matter in the Act that was passed in last year - which shall have been granted to or acquired by the Commonwealth.
We have already passed an Act which intimates where we propose that the Capital shall be. The next stage was to get the territory, which would be necessary in order to fix the Capital where we had decided that it should be. This Bill does not help us one bit in that direction. It leaves matters absolutely where they were when the last Act was passed The third clause of the Bill contains a still more extraordinary provision. It reads as follows : -
With great respect to Ministers, I would point out that this clause calls for serious attention. The Minister is empowered to obtain something, if he can, and the Governor-General is empowered to accept something if he can get it. And what is that? - a grant, something given by the State of New South Wales. In the light of the difficulties which exist between the Federal Government and the New South’ Wales Government, such a provision borders upon comedy or burlesque. The attitude of the New South Wales Government and Parliament, whether right or wrong, is perfectly clear. They say: “We will not grant you a site at Dalgety, and we will not give you 900 square miles, whether it be at Dalgety or elsewhere.” This Bill is our answer to that. It is proposed in clause 2 to declare that the Capital shall be in territory that we have not got, and having decided that the site shall be in that territory, we are, under the provisions of clause 3, going to ask New South Wales to grant it to us. If that be the position, we are not moving on very rapidly. In view of the facts, which are well known throughout Australia, the Bill is practically a piece of waste paper. We are now in a position - and it is very regrettable - practically of dead-lock between the Parliament of New South Wales and this Parliament, and some of the Members of the “Federal Parliament have descended to the use of language with reference to the Government and Parliament of New South’ Wales, which is a disgrace to them.
– The right honorable gentleman has not heard that language in this Chamber.
– I do not say so.
– Then the right honorable gentleman should not have referred to it here.
– I cannot help expressing my great resentment at the deplorably low language that has been used in reference to the Government and Parliament of New South Wales - I admit not in this House. I should be very glad if I could refer to the matter more pointedly than I am permitted to do.
– It is a good thing that the right honorable gentleman cannot do so - I mean in the interests of a settlement.
– I do not think that it is in the interests of a friendly settlement that such language can be used. We talk of asserting our dignity and our rights, and about resenting dictation. Surely men who take up that perfectly justifiable position might show some degree of respect and regard for others.
– I am not pleading for them.
– I know that. I merely say that it is to be regretted that language has been used on both sides which has made the trouble not more easy, but more difficult, to settle. I should like to say, also, that me impatience and resentment which exists in New South Wales over this matter - I do not want to refer to matters which are not before the House - is intelligible. In the first place, the site selected was not popular in New South Wales. However good it may be iri itself, the selection was not received with any satisfaction in the State.
– In Sydney.
– I claim to know something about the feeling in New South Wales, just as my honorable friend claims to know the feeling that prevails in Western Australia. I should not for a moment venture to question his superior knowledge with regard to the sentiment of Western Australia. I simply give my opinion for what it is worth. I admit that the wave of indignation may not be quite so fierce or overwhelming as some people describe it, but I know that there’ is a very strong feeling of dissatisfaction. At this stage of the session I do not wish to criticise the action of the Government very much, but I must express my regret that we got off the track of friendly negotiations, as we did when we declined to go into Committee to consider the expression of the wishes of the New South WalesParliament in connexion with this question. That is the point at which the Government went off the track. We might have determined that any change in our selection was impossible ; we might have made up our minds that the sites offered by the New South Wales Parliament were inadmissible, and could not be considered; but, recognising the undoubted standing of New South Wales as the State in which the Capital is to be, and as the State whose territory is to be taken for the purpose of establishing the Capital, surely we ought to have gone into Committee, and to have paid New South Wales the common courtesy of considering her requests.
– The is the opportunity.
– The Prime Minister utterly misconceives, and for such a conciliatory public man, strangely misconceives, the situation, when he regards this as a courteous step. We have not considered the request of the New South Wales Parliament. We are going on as if it had never been made. This matter presents itself in two aspects. One is the choice by the Federal Parliament of a. site, and the other is the disinclination of the New South Wales Parliament to grant that site, followed by an offer of other sites. If the New South Wales Parliament had simply considered our choice, and had said “No,” without taking any further step, our position would have been sound, but, instead of that, the StateParliament first said “No” to our choice–
– They refused to consider it.
– We know that Parliaments cannot consider matters together. Governments can come together, but Parliaments cannot. By-and-by they may be able to; but at present they cannot, and, perhaps, it is just as well that they cannot. If the New South Wales Parliament had said “ No “ toour choice, and done nothing more, we should have had no duty such as I refer to, but when they followed up their rejection of our choice with an offer of three other sites, the position was different. Surely New South Wales had a right to submit three other sites for the consideration of this Parliament?
– Yes. New South Wales submitted them before.
– The Attorney-. General said “ No “ on Saturday.
– I beg the honorable member’s pardon.
– Whether that be so or not, I put it plainly and fairly that, since New South Wales, in expressing disagreement from our choice, took the trouble to offer other sites, it was our duty to take their suggestions into consideration. The late Government considered the matter, and their intention was to have taken the resolutions of the New South Wales Parliament into consideration in Committee of the Whole, so that the House might have had an opportunity to pay New South Wales. - I will not say the compliment, but the duty and proper respect of considering its proposals - with the perfect liberty to say “No” to them. We should have been at perfect liberty to reply, “ We have considered your proposals, and regret that we cannot accept any one of them.” It is said that we can do that in connexion with this Bill, but I submit that this is a very unhappy way of dealing with the matter. If in the ordinary affairs of life, two individuals had interests in common, and one expressed an intention of which the other disapproved, and made an alternative suggestion, what would be said if the person who made the first suggestion took no notice and pursued his own course? I contend that the people of New South Wales have absolute justification for the irritation they feel owing to the contemptuous way in which their wishes have been treated. We go into Committee to consider the most trifling amendments made by the other Chamber in a Bill. Our measures are matters of mutual concern between the Chambers, and when any amendments are made in a Bill sent by us to theSenate, we go into Committee to consider them. We pay them that courtesy without the slightest prejudice to our right to reject the amendments.
The Parliament of New South Wales practically forwarded us a reply which this House has never taken into consideration. It was not a reply from the Premier of New South Wales to the Government of the Commonwealth. It was in the nature of a communication addressed by the New South Wales Legislature to the Parliament of the Commonwealth, and it was the duty of the Government to have submitted those resolutions in Committee of the Whole, so that we might at least have paid New South Wales the common civility of taking her wishes into consideration.
– Was not the action of the New South Wales Parliament, in omitting from the list of sites’ offered, the site which was selected by this Parliament, rather contemptuous treatment of the Commonwealth?
– No; because if it did not approve of it, it was impossible to retain it in that list.
– Could not the New South Wales Parliament, by resolution, haw asked us to reconsider the question ?
– That would have led to nothing. Nobody can deny that the Parliament of New South. Wales has a right to express a wish upon this subject. That goes without saying. It did express a wish by resolution, not by way of saying, “ Take this site, or we will grant you no other,” but by offering us three sites. I say that that suggestion ought to have been taken into consideration in Committee, irrespective of whether or not we intended to pay it the slightest consideration. But, instead of doing that, the Parliament of New South Wales was treated as we should treat an officious letter-writer. Its communication has been thrown into the waste-paper basket. Of course, it may be urged that the Government of the Commonwealth have bestowed a good deal of time upon this question. That, however, is no answer to my statement. The matter is one between Parliament and Parliament, and it is not sufficient for an UnderSecretary to reply to a State Minister. It must be a matter of equal authority, of Government dealing with Governemnt, and Parliament with Parliament. The Commonwealth Parliament, through no fault of its own, has not taken the wishes of the New South Wales Parliament into consideration. Now, I pass away from that aspect of the question, because we have to deal with the situation which has since arisen. I sa.y that there will be no justice rendered to New
South Wales by professing to reconsider this matter at a time like the present, when half of the members have left for their homes. We are here at a time when only honorable members like myself, who have not been doing their duty, can possibly be fit to consider this matter. Honorable members have been working under a very great strain for weeks past, and their own sensations must tell them that they are not fit to grapple with this question as it ought to be grappled with. At the present stage of the session, I do not consider that the House will improve the situation at all by proceeding with this Bill. I think I may speak for my colleagues from New South Wales pretty generally, and I consider we ought to be as much interested in the matter as is any other honorable member.
– The time is unpropitious, because of the action of somebody outside of this House.
– That may be so. I have found, from the few inquiries which I have been able to make since I arrived here, that rightly or wrongly, the action which was recently taken in New South Wales, instead of inducing honorable members to approach this question in a more conciliatory frame of mind, has had exactly the opposite effect.
– The right honorable member himself would not have taken similar action.
– I do not know. I feel’ there is a great deal of ground for the dissatisfaction which has been expressed iti New South Wales, and I have endeavoured to give one or two reasons for it. But I wish to make the best of difficulties as thev arise. I do feel that the temper of Parliament - ih view of what has recently taken place in New South Wales - is not favorable to the calm and successful settlement of this question.
– How could it be? References to “ escaped lunatics “ are not calculated to create a good feeling.
– There is a certain amount of compliment conveyed in that phrase, because, after all, we were clever enough to escape. Some people cannot do that. Just as I deprecate very strongly the use of objectionable language in this Chamber, I deplore the use of such expressions as that to which the honorable member has referred. They are the last expressions in the world that should be used when there is any prospect of friendly negotiations. My position in reference to the Capital
Site has always been a very clear one. Originally I was in favour of the selection of Lake George. But the representatives of New South Wales realized that if we were to split ourselves up into sections, and to support three or four sites, we would simply come in nowhere. Consequently we met and considered the matter. We came to a certain conclusion.
– That is caucus rule.
– It is not, because each honorable member, when he left the room, was at liberty to vote in any way that he chose, without being crucified. I should like to say a word or two in reference to the caucus, hut this is not the time to do so. The New South Wales representatives held several meetings, and came to the conclusion that, instead of frittering away our energies over four or five sites, we should support the selection of Lyndhurst.
– The right honorable member did not invite all the representatives of New South Wales to be present at that meeting.
– I am very sorry if all the representatives of that State were not asked to attend. We decided to support Lyndhurst, and that fact accounts for the prominent position that it occupied at the ballot. Not one of the New South Wales representatives voted for Dalgety. Not one member of this House supported the selection of that site when it stood by itself , and had to rely upon its own merits. Not one vote was then registered in its favour - not even the vote of the PostmasterGeneral.
– Honorable members did not know the place.
– Did the Treasurer vote for Dalgety?
– I was not here when the subject was discussed in 1902.
– It is rather a reflection on the Postmaster-General to say that he did not know Dalgety. At the first ballot there was not one single vote registered in favour of that site.
– Because we agreed to hold it back.
– The Postmaster-General did not agree to hold it back in the sense that one keeps a winning horse dark in the stable. We honestly decided to stand by Lyndhurst. We did not run that site as a sort of cripple in order to bring in Dalgety subsequently.
– Does the right honorable member recollect that five out of the six New South Wales senators fought for the selection of Dalgety?
– I do not. If that be so, it simply shows what a bad choice they had. Personally I had to vote for Dalgety as a choice between two evils. If Tooma were the greatest paradise in the world, it had the disadvantage of being in a cemetery. We do not wish to bury ourselves when we go to the Seat of Government. I ruled Tooma out of consideration, not because a most successful picnic had been celebrated there, but on account of its geographical position.
– What does the honorable member for Grampians think of that?
– The honorable member for Grampians speaks from the other side of the mountains. There is not one of the representatives of New South Wales who supported1 Lyndhurst, who cast a vote in favour of Dalgety upon its merits. Not one of them registered a vote, indicating that they honestly thought it the best site for the Capital.
– They had not visited it in 1902.
– Most certainly they had.
– They only visited. Bombala.
– The Treasurer must forgive me for saying that a very large number of honorable members visited Dalgety.
– They seem to have changed their tunes a good deal afterwards.
– I do not desire to engage in a conversation with the Treasurer. I have been endeavouring to find his Budget speech in that publication which he has recently issued, and I have discovered that it is not the speech which is recorded in Hansard. I do not know how he managed to get it printed, but when I read the Hansard report–
– It is identical with the Hansard report.
– But the Treasurer omitted all the blue metal. I never saw a more unjustifiable attempt to blue metal a Treasurer in my life, and yet to read the publication which has been issued by the right honorable gentleman, one would imagine that he was speaking in a paradise.
– I was not going to publish that rubbish all over the world.
– The effect of what the Treasurer has published in that Budget statement, which has elicited a great deal of appreciation, is the effect of a speech which has not yet been delivered.
– It is word for word the Hansard report of what I said upon that occasion.
– But it is not word for word what honorable members said to the Treasurer.
– It was my speech - not theirs.
– The Treasurer’s publication does not contain all that he said.
– I would ask the Treasurer and other honorable members not to engage in conversations across the Chamber. If they do so, not only is it impossible for the right honorable member who is addressing the House to make his points, but other honorable members are prevented from hearing him.
– But I am not going to be misrepresented by the right honorable member for East Sydney.
– Does the Treasurer take exception to my ruling?
– No, sir.
– I hope that the right honorable gentleman paid for the revision of that speech, because I think that that work would cost more than did the actual setting up of the speech itself. To come back to a matter more important than is even the Treasurer’s Budget speech, I should like to point out that the position I have taken up all through has been a very simple one. I tried hard to secure the selection of the site of which I approved, and failing that, I tried to obtain the selection of the least objectionable site. That led me to vote for Dalgety, and I say again that, unless there is a reasonable prospect of the selection of a site more in the direction of my old choice, I am going always to stand by that site.
– Is not the right honorable gentleman going to stand by it now ?
-Not if I can obtain a better site. Why should I ? I do not know of any substantial reason why I should, and I certainly do not know of any sentimental one. I have fought with the honorable gentleman - just as he has fought with other people - while it suited me, and when it does not suit me, I shall fight with someone else. It suited me to support the honorable gentleman in the selection of Dalgety, in order to avoid a worse evil ; but when I have a chance of obtaining a better site - one of which I was originally in favour - I am going every time to try to assist in promoting that prospect. I have put my views very plainly. In September last. I stated very clearly why I voted for Dalgety: -
I admit that we desired another site than that of Dalgety, but we accepted that as the next commendable, and I am prepared, just as staunchly as ever, to support the choice of the Parliament. My own impression, as against that of others in New South Wales, who so much assail this selection, is that it is absolutely the best that New South Wales is ever likely to get - that any change would absolutely be for the worse.
That was the basis on which I founded my support of Dalgety. I have every reason to believe, however, that a very great change has come over the feelings of some honorable members in connexion with this subject. I have grounds for the belief that if this question be re-opened, there is a, reasonable prospect of the selection of a site more in the direction of that which I originally favoured, and one which is more likely than is Dalgety to give satisfaction to the people of New South Wales. The Minister of Home Affairs will see that my position is a perfectly fair one.
– I am not criticising it.
– A man selects the site that he likes best; if he cannot get that he supports the site which he next favours. That is the course which I have followed all through. I say that, as against Tumut, Bombala, or Tooma, I am in favour of Dalgety.
– Mr. Carruthers said that the right honorable gentleman informed him that the selection was final and absolute, and could not be re-opened.
– That is an absurd remark.
– Was he wrong?
– I am not going to say whether he was wrong or right, because I am sorry to say that I do not retain a very keen recollection of my private conversations. Some people keep diaries, but I do not. All that I can say, is that my impression was that the mind of the Parliament was absolutely made up, and that in that sense I probably did tell Mr. Carruthers something on the lines suggested.
– And the right honorable member was probably correct.
– It may be found so; but I have good, sound reason to believe that the matter may be re-opened with advantage to New South Wales.
– And with advantage to the Commonwealth.
– Of course; although I do not suppose we shall get credit for that consideration. With reference to the stipulation that the Capital should be in New South Wales, I may say that I had two good reasons for urging it, and I think that those reasons still remain good. The first was that I did not believe that the Bill would be passed in the absence of such a stipulation. That was the reason which guided the five other Premiers, meeting in conference with me, in agreeing to my suggestion.They knew that it was really a point among others upon which the movement depended. They did not agree to it out of any courtesy to me or to New South Wales ; they agreed to it because they believed that without that concession, the prospect of a Federal Union was remote. They may have been wrong ; I think that they were right. My own impression is that without that stipulation, the Federal Union would not have been consummated.
– It was a bribe.
– It was regarded as a bribe.
– That is a most unhappy expression to use. The five Premiers sitting in conference with me were business men assembled at a business conference, and they had to choose between Federation without New South Wales or with it. The honorable member must not say that the granting of the concession was a bribe. If language may be abused in that way, every favorable clause in a treaty must be a bribe. If the honorable member’s contention be correct, every clause in a treaty which is drawn up between ambassadors at a council table must be a bribe, since one concedes something to the other.
– The right honorable member said that New South Wales would not have come in without it.
– If the honorable member’s contention be correct, then the granting of the special Tariff to Western Australia was a bribe.
– Certainly. But the expression was an unhappy one; it was decidedly ill-chosen. The Premiers who attended the Conference were men of independence, and could just as easily have said to me, “ No, Mr. Reid, we will not do what you wish.” But they decided upon broad considerations to accede to the suggestion I made. There is something more than that to be considered. I wish to put the national reason upon which I made the stipulation - a reason which I shall justify, and which, I think, posterity will justify, as being far from a parochial or selfish consideration. I may be wrong, but in my judgment then, and it is the same now, the great bulk of the population of Australia in the future would be on the eastern rather than on the western seaboard. I hope to see all our seaboards under the Commonwealth develop grand populations ; but I do submit now, as I did then, that if one views the great elements which make for population -the elements, of manufactures and commerce - one must see that they lie more directly upon the eastern than upon the western seaboard.
– All those on the western seaboard have not yet been discovered.
– I hope that that is so. Too many cannot be discovered. But my view is that the future centre of Australia will be somewhere in New South Wales.
– It is now.
– That is undoubtedly so; but I am speaking of the future, because in a matter of this kind the present is not of so much moment. Looking to the future development of Australia, I came to the honest view that the eastern seaboard would be the centre of the Federation in point of humanity, and that it ought to be so in point of government. That was my principal reason for insisting upon the provision in question. I also knew well, as honorable members know, that if I had not made that stipulation, the Capital would not have been in New South Wales.
– No one knows that.
– It would have been a case of the representatives of four States to two against the Capital being in New South Wales. That would have been due to very legitimate conditions from the point of view of honorable members - the question of convenience - but that is not the only subject to be studied in the selection of the site of the
Capital of a great nation. I believe there are some who take a very extreme view of an expression in the minutes of the Premiers’ Conference, and I propose, therefore to refer to it. I have before me a reprint by the New South Wales Government, as well as a copy of the original minutes, which was circulated by the right honorable member for Balaclava, who was Chairman of the Conference.
– And it was printed in Melbourne.
– That is so. The Conference was held here, and it was natural that the minutes of that Conference should be printed in this city. The paragraph is as follows : -
With regard to the Resolutions - “ (c) The Capital of the Commonwealth “ -
This is a minute which was settled by the six Premiers, after careful consideration, and was signed by each of them -
It is considered that the fixing of the site of Capital is a question which might well be left to the Parliament to decide ; but in view of the strong expression of opinion in relation to this matter in New South Wales, the Premiershave modified the clause, so that while the Capital cannot be fixed at Sydney or “in its neighbourhood, provision is made in the Constitution for its establishment in New South Wales at a reasonable distance from that city.
The construction placed upon the words, “ at a reasonable distance from that city,” is that there was to be not only the100-mile limit prohibition, but a prohibition in respect of a still greater distance.
– I am sure that my right honorable friend, as a member of that Conference, would not say that that was, the intention.
– The AttorneyGeneral made that suggestion.
– I have heard that it has been suggested by an eminent legal authority. But for that I should not have referredto it.
– I think that the right honorable member is placing a wrong construction on what has been said. That which the right honorable member suggests, was never said.
– The right honorable member did not hear what I said.
– No; but I make these observations only because the matter was brought under my notice with a sort of invitation that I should refer to it. I understood that it was a courteous act on the part of the Attorney-General to Jet me know of this possible construction, so that I might deal with it. This minute, however, is not a matter for legal construction. It is to be considered, not in a legal, but in an honorable spirit, by persons who are parties to the bargain. The Treasurer, who was a member of the Conference, scouts the idea that it is a legal matter. The honorable member for Parramatta, in speaking on this question on Saturday last, said -
The Premiers of all the States place uponit the interpretation that the Capital is to be within % reasonable distance of Sydney.
The Attorney-General interjected -
Properly read and understood, that is an absolutely strong argument against the honorable member’s present position.
– I do not agree with the Attorney-General.
It would thus appear that the AttorneyGeneral has now two of his colleagues against him. The report continues; -
– Does the AttorneyGeneral suggest that the arrangement entered into does not mean that the Capital is to be Within a reasonable distance from Sydney?
– It means that the Capital is not tobe unreasonably close to Sydney.
– Hear hear; that I did say, and it is entirely different from the statement which the right honorable gentleman attributed to me.
– There is no dispute as to what the honorable and learned gentleman said.
– But the report which the right honorable member has quoted shows that what I said was very different from that which he has attributed to me.
– The report continues -
– Why does it not say so ?
– It does.
We are now in a position to deal with that which the honorable and learned gentleman said.
– That is all right.
– The honorable and learned gentleman said -
It means that the Capital is not to be unreasonably close to Sydney.
The stipulation that it should not be less than 100 miles distant from Sydney is to secure that result. If the view of the honorable and learned gentleman is to be taken, there is no need to add these words’. Let honorable members consider how clearly the provision would have read on his contraction without the words which were added -
So that while the Capital cannot be fixed at Sydney or in its neighbourhood -
That is, within the 100 miles limit, provision is made in the Constitution for its establishment in New South Wales.
There is absolutely no need, in the reading of the Attorney-General, for any of those words, because the Constitution says -
Shall be in the State of New South Wales, and be distant not less than 100 miles from Sydney.
– Is not the provision referred to in the minute of the Premiers’ Conference ?
Mr.REID. - In that minute there was no necessity to use the words “At a reasonable distance from that city.” The expression, to meet the honorable and learned gentleman’s view, would be absolute if these words were left out -
So that while the Capital cannot be fixed at Sydney or in its neighbourhood, provision is made in the Constitution for its establishment in New South Wales.
That is the construction for which the honorable and learned gentleman contends.
– Not at all.
– The honorable and learned gentleman practically contends that the words were put in to add to the 100 miles’ restriction a further restriction of a vague and ambiguous character. That may be the view of the honorable and learned gentleman, but it is not the view of the six Premiers who were parties to the agreement, and knew what it meant.. It is easy for persons who want to get away from the spirit of the bargain to put on it constructions of their own. This is not a compact for lawyers to construe, but for Premiers and populations to act honorably by. The Capital could be placed at Wilcannia under the words “ not less than 100 miles,” as construed by some honorable members.
– The 100 miles limit decides the question of reasonableness.
– If the Attorney-General is right, the words “and be distant not less than 100 miles from Sydney” mean that what the Conference intended was that it should1 be as far as possible from Sydney. Surely the words “ at a reasonable distance from that city “ were added in order to point out that, while the Capital should not be within 100 miles of Sydney, the Premiers thought that it should be within a reasonable distance of that city. I appeal to the Treasurer if that was not so.
– I look upon the words as a sort of preamble to the clause.
– Pointing to something. The fact of the matter was that the 100 miles’ limit was the result of a compromise. I do not think I shall be breaking confidence now when I say, years after the Conference - I am sure that the right honorable member for Balaclava will forgive me for the statement - that the Victorian delegates met before the Conference was held, and wished him to stipulate for a limit of 200 miles. When I tried to reduce the limit from 100 miles to seventy-five miles, the right honorable gentleman explained to me that he had already yielded, as far as he could, in consenting to a limit of 100 miles.
– This is very important information ; but we are getting it rather late in the day.
– I do not know that I am strictly justified in mentioning the matter now, but I hope that I may be allowed some latitude, since the subject is not now of burning importance.
– Why did the right honorable member let them slip in Melbourne as the temporary Capital?
– I had had experience of the other Premiers during the five years that I was in office in New South Wales, and was quite willing to accept their words without their signatures. The construction that “ a reasonable distance from Sydney “ means an unreasonable distance does not appeal to me, although I was one of those who drew up the compact. In a Court of law, the lawyers make a contract for their clients, but men transacting their own business are guided by what they meant by their contracts, and not a member of the Premiers’ Conference would give to the compact the legal construction which has been placed uponby the honorable and learned member for Indi.
– A limit of 200 miles would shut out Dalgety.
– The arrangement entered into was, as the report shows, that, while the Capital should be at least 100 miles from Sydney, it should be built with a reasonable regard to its position in reference to that city. That was the spirit and meaning of the agreement, as every one of the parties to it will attest. I wish to know how we stand in this Parliament, and what sort of men we are doing business with. Do they wish to place a legal construction on an honorable bargain which the parties to that bargain repudiate? I think that the arguments which have been used are vicious and unsound. The question is, what the agreement meant to the Premiers and to the peoples of the States, not what it means to those who have an interest in reading it upside down. I hope that this already painful controversy will not be envenomed by treatment of this kind.
– Is it not a fact that the right honorable gentleman tried to place a legal construction on part of it, which the right honorable member for Balaclava repudiates ?
– I am not aware of having done so.
– In reference to the Seat of Government being in New South Wales, and different from the meeting place of Parliament.
- Mr. Justice O’Connor and several other learned counsel gave the same opinion as to what was meant with reference to New South Wales, and I believe that I expressed my opinion on the subject in an interview ; but I have no recollection of any controversy with the right honorable member for Balaclava on the subject. I should be surprised to have a controversy with him on the point upon which I am now speaking. I think it will be found that he is of the opinion that it was not intended that a further disability should be added to the 100 miles limit, because, if that is what is intended, the -limit’ might have been regarded as 200. or 300, or 400 miles. We were not prepared for a limit of 100 miles, and a legal construction which would compel the Capital to be placed somewhere down on the Murray, near the constituency of Indi. When the AttorneyGeneral can get one of the parties of the bargain to read it in his way-
– I will take the right honorable member’s own reading of it.
– The honorable and learned gentleman is as clever as a conjurer, especially in getting business through the House.
– I cannot hold a candle to the right honorable member in that respect.
I will quote his own words. I have here a report of a speech made by him, in which he makes the pledge to stand by Dalgety.
– The, speech to which the honorable member refers, and has handed to me, was delivered in this Chamber in December, 1904, and is reported at page 8561 in vol. xxiv. of Hansard. I am reported to have said -
If they are, the Federal Capital will be established in New South Wales at no distant date ; but, just as it is possible for the Federal Parliament in its treatment of the subject to so act that there will be no Capital in New South Wales within a reasonable time, it is possible for the Government and Parliament of New South Wales to so act that there will be no Federal Capital in New South Wales within a reasonable time, unless we have an inherent right to select the Capital by our own will. That is a question of serious importance, which I hope will never have to be considered. I hope that those who have this matter at heart, will rest satisfied that the Government will loyally regard the decision of this Parliament, unless it is rescinded, and, so far as I am concerned, any attempt to rescind it will meet with my strongest opposition.
My reason for those remarks was given in September last, three months ago.
– That is a different point.
– It is the same position. There, was a fight between Tooma and Dalgety, and it was such a near thing that but for a marvellous achievement on the part of the Postmaster-General, Tooma would have been selected. The Minister of Trade and Customs was led into a division when he thought that he was quite safe, but everything was wrong. That secured Dalgety for us, and I knew that it stood upon such a frail footing that unless I clung to it with all my power, we should be buried down at Tooma. I told the Postmaster-General that if Tooma were selected I should counsel the people of New South Wales to absolutely refuse to consider it. I did not tell him that about Dalgety.
– But die right honorable gentleman is practically doing that now.
– No, I am not. I am talking to this House. I suppose the honorable member for Gwydir does not deny that this House has a perfect right to alter its decision as to the site?
– I quite agree with that ; but I think it was wrong for the right honorable gentleman to hold back such important information as he has communicated tonight.
– I am not quite sure that I should have mentioned it even at this stage.
– The righthonorable gentleman, I thought, mentioned it with the same safeguards in the first Federal Parliament.
– I felt some delicacy in mentioning the matter even this evening, lest I might be considered to ‘have broken a bond by repeating a private conversation. However, the incident occurred so many years ago that I feel that I may be forgiven for mentioning it now. But be that as it may, I have taken up an absolutely clear position. I would stand by Dalgety to the last when there was any danger of a worse site being chosen. Dalgety was never my choice, and any one looking through the debates will find that I did not use one single expression of satisfaction with regard to it. It was forced upon me as the least of the evils that threatened New South Wales.
– The other site is a better one, only it is more distant.
– We have to consider a number of matters in selecting a site for the capital of Australia. I am quite prepared to see the matter re-opened now. I was absolutely opposed to that course previously, because I thought it would lead to mischief, and result in our going down to Indi. Now I am told that if the question is re-opened, we may go to Lake George.
– The right honorable gentleman is taking some risk, even now.
– I am willing to take the risk, because I have information which is even more valuable than any that the Minister could give me. I have every reason to believe that if a change is made, it will take us to a locality that I have always considered more eligible.
– If Dalgety goes out, Tooma will come in.
– When we reach that point, I shall return to Dalgety.
Honorable Members. - Oh !
– There is nothing remarkable about that. There were three different sites. I preferred one which I could not get. I disliked No. 3 because I thought it utterly bad, and I supported No. 2 site, which was not so bad. I now believe that I can get my original selection, and when I elect to take it, I am called a political contortionist. That is a matter of common sense that cannot be appreciated by some members of the Labour Party. I am shifting from Dalgety because I think I can get something better. If, however, I find that I cannot do that, I shall stick to
Dalgety. If we were to pass this Bill tomorrow, we should not move one inch further. I think that is one of the strongest reasons for waiting until we get something in a Bill that will enable us to make a forward step.
– There is nothing to prevent the right honorable gentleman from altering the Bill so as to accomplish that.
– That is a novel idea. Here we have a Government, including a number of able men, who have only a little Bill to draft, and yet they ask a stranger like myself, who comes here once in three months, to put it in shape for them. I shall undertake that work when it becomes part of my duty.
– Perhaps the right honorable’ gentleman would make a suggestion by way of criticism.
– I do not expect to enlighten the Minister. The Prime Minister made a most unhappy interjection when he practically threw upon me the necessity of knocking the Bill into shape. There is one important announcement in the measure which I had overlooked. The first clause reads -
This Act may be cited as the Seat of Government Act 1905.
What was the title of the other Act that fixed Dalgety as the Capital Site? I think it was something like that. In what way does this Bill advance one pace the matter of fixing the Capital Site? We have passed an. Act declaring that the Capital of the Commonwealth shall be at Dalgety. Consequently that is already law. Clause 2 of the Bill states -
The territory described in schedule A to this Act … is hereby determined to be the territory in which the Seat of Government of the Commonwealth shall be.
As I have said, that declaration is flatly against the Constitution. The Capital Site cannot be selected in any territory which has not been granted to or acquired by the Commonwealth. The next clause, instead of providing that steps shall be taken to acquire the territory - because there are alternative words in the Constitution which point to the process of acquiring territory if a grant is not made - empowers the Minister to accept a grant by the State of New South Wales of the territory described in Schedule A - to the full extent to which the territory can be granted by the State within the meaning of section 125 of the Constitution.
No doubt that expression, although rather clumsy, means that the Parliament of New South Wales is asked to grant 900 square miles, so far as Crown lands exist within the territory.
– But would not the grant imply that they would give up their sovereign State rights,, even in connexion with private land? Would not a grant of territory mean more than giving up the feesimple of the land?
– Hear, hear.
– Yes; but if that were meant the expression “can be granted” would not be used. In a territorial sense, every inch of the land, whether owned privately or otherwise, could be granted. That is to say, the relation of the State towards it could be transferred to the Commonwealth. My point, however, is that, instead of doing anything, this clause is supremely ridiculous, in that it empowers a Minister to apply to Mr. Carruthers, the Premier of New South Wales, for this 900 square miles. In view of the attitude of the Government of New South Wales, that is silly in the extreme. If this were a conciliatory move, there might be something in it, whether it was sensible or not. It is declared, however, that the Seat of Government shall be at Dalgety, and1 there is no move in the direction of conciliation. Then clause 3 empowers the Minister not to acquire the territory, but to present his compliments to the Premier of New South Wales., and ask him to grant it. That is ridiculous, because that has been done already.
– Does the right honorable gentleman want us to present a revolver at the head of New South Wales ?
– No; but when we passed an Act determining that Dalgety should be the site of the Federal Capital, the very step here provided for was taken. The Government, as was their duty, immediately sent to the New South Wales Premier a copy of the Act containing the determination of the Federal Parliament, and asked him to take the steps necessary to carry out their choice. This Bill is simply repeating, as a dismal farce; that which was already provided for by this Parliament months and months ago. The Minister is empowered to obtain, and the GovernorGeneral is empowered to accept, a grant by the State of New South Wales of the territory described in Schedule A to the Act. The expression “ grant “ implies the giving of something. It does not imply the forcible taking of anything. It suggests ah approach to the Premier of New South Wales for a grant, but action has been taken already in that direction. The moment this Parliament chose Dalgety, we asked the New South Wales Government to take the steps that were necessary to give effect to the Seat of Government Act. Now we are going to solemnly pass a measure empowering the Minister to ask the Premier of New South Wales to grant us something that he has already declared he will not grant. This is surely a wondrous Bill, and this House will fairly crown its recent labours if it passes it. Now clause 3 provides that -
From the day when the grant and acceptance take effect -
Everything hangs on that. The Minister is to repeat that letter that we sent to New South Wales a year ago. He is to say : “ I am empowered to obtain from you, Mr. Carruthers, a grant of the Dalgety site.” A letter’ would1 have answered the same purpose. The clause goes on - all estates and interests held by any person from the State of New South Wales within the territory so granted and accepted shall continue to be held from the Commonwealth on the same terms and conditions as they are on that day held from the State.
No doubt the term “ grant “ is used in the sense of territorial grant, without reference to the tenure of the land. It all comes back to this : That the Premier of New South Wales can only be asked to grant the territory. A request is to be made, and1 we are solemnly passing an Act of Parliament embodying a request that was conveyed by correspondence months ago If this Bill provided that if the Parliament of New South Wales would1 not grant us the territory which we ask, such and such a thing should happen, it might effect some good. But what is to happen, in the contingency which I have suggested ? The entire Bill is conditioned upon the grant being made by New South Wales. That grant must take place before the Bill can achieve anything. What is to happen subsequently? The State laws are to continue in operation “ until Parliament otherwise provides.” Provision is also made for the territory having access from the sea. The whole Bill hangs upon its first portion - upon the Government of New South Wales doing a thing which thev have absolutely said they will not do, namely, facilitate our acquisition of the Dalgety site. They have made their position perfectly clear, and it does not seem to me that in this Bill we are taking up either a diplomatic or a strong position. There are two things which might be done - one is to take up a strong position, and assert whatever rights we may have in the matter ; and the other is to adopt a conciliatory attitude, and endeavour to arrive at an amicable arrangement in that way. This Bill does neither. It asserts that the Seat of Government shall be at Dalgety. That is not conciliation. Then it says, in effect, “ Will you kindly grant us this particular site, embracing an . area of 900 square miles?” The measure will raise another inflammable subject in New South Wales. The Bill not only asks that State to grant us a territory at Dalgety, but it actually says., “ There is the territory that we want ; there are its boundaries ; we have mapped out 900 square miles, and there is a legal description- of it, similar to that which usually appears at the end of a conveyance. All that you have to do is to give us that site.”
– That would settle the whole difficulty.
– Of course it would. If we fixed the area at 100,000 square miles, and New South Wales granted us that area, it would settle the difficulty. But what would Victoria say if a big slice of territory were cut out of it?
– Give her a show.
– It seems to me that if o±er people dealt with our little terraces’, as we propose to deal with land that does not belong to us, hard names would be used.
– In New South Wales, the Government have been dividing up the land for years amongst boodlers.
Mr. - REID. - Is that any reason why another boddler should come along and claim 900 square miles of her territory? The fact is that the party to which the honorable member belongs wishes to obtain a large slice of New South Wales territory in order that it may indulge in a socialistic experiment. New South Wales is not prepared to give land for that purpose.
– But the land would remain there.
– Of course it would. If somebody were to put his hand into the honorable member’s pocket, the money: would still remain in the country. But other people naturally expect us to keep our hands out of their pockets. This Bill is, a perfectly idle and childish one. If it were something better than that, this is not the time of the session to do it justice. There are too many members absent. It is useless to talk about our powers having been exercised, because we do not know what modifications may arise-
– We waited until the honorable member returned to the House before dealing with the question.
– The honorable member will not be able to do that much longer. That is one consolation. He has another year of parliamentary life before him, and that is all.
– The right honorable member must not indulge in threats.
– No; I believe in a fair fight.
– The right honorable member himself should contest my electorate.
– I never take on a boy’s job, when I can get a boy to do it for me. When the time to which I refer arrives, I shall be too busy in other directions. It seems to me idle to expect that we can settle this matter in a satisfactory way at the present late period of the session, and, so far as I am personally concerned, I am strongly in favour of its consideration being deferred. Although I am a representative of New South Wales, and may seem to be taking a course which is contrary to the wishes of her people, I am prepared to accept the responsibility for my action, feeling that results, will justify the adoption of the course that I suggest.
.. - It is a little unfortunate for the right honorable member for East Sydney that nearly the whole of his speech has been anapology for his own previous action. I submit that the position of this question of the Federal Capital is clear beyond dispute. In August, 1904, the Commonwealth Parliament, after three years of urging by the representatives of New South Wales/ and’ indirectly by the Parliament and Government of that State, took it upon itself redetermine the future Seat of Government. It did so at a great expenditure of time and trouble. The Act which was then passed, partly at the request of the right honorable member for East Sydney himself, did not proceed to determine finally and precisely certain matters which might well have been decided, and which we wish to have determined now. It was urged that the Bill should not be couched in mandatory terms, but that the word “ should “ should be substituted for “ shall “ in section 3. Section 2 says that the Seat of Government “ shall “ be within seventeen miles of Dalgety, and the following section declared that the territory to be granted to or acquired by the Commonwealth “should” contain an area of not less than 900 square miles, and have access to the sea. Honorable members will, therefore, see that there was nothing precisely determined in that Act, except that Dalgety must be the locality, and that it was the wish of this Parliament that the Federal territory should contain an area of 900 square miles, and have access to the sea. At that time there was no talk whatever of this newly- found argument in reference to the Premiers’ Conference.
– Excuse me, there was. I brought it forward when the selection of a site was under consideration.
– If there were any weight whatever in the present contention of the right honorable member for East Sydney, how was it that, as the chief representative of New South Wales, he entirely overlooked it for years ? Is it to be suggested that a matter which is so vital to the spirit of the compact arrived at by the Premiers’ Conference that, according to his view, it should override the legal interpretation of the Constitution, was forgotten by him? That suggestion is absolutely contrary to what was stated, and done by the Premiers themselves, by New South Wales itself, by this Parliament itself, and by members of the Opposition. I will accept the challenge of the right honorable member, and deal with this matter, not from a legal stand-point, but from the stand-point of common sense. I will invite honorable members to recollect the progress of the negotiations which led up to the final shaping of section 125 of the Constitution. When the Federal Convention adopted the Constitution, the clause relating to this matter read -
The Seat of Government of the Commonwealth shall be determined by theParliament, and shall be within territory vested in the Commonwealth. Until such determination, the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governments of the States, or in the event of an equal division of opinion amongst the Governments, as the GovernorGeneral may direct.
That left it absolutely open to this Parliament to establish the Seat of Government anywhere in Australia. After the failure in New South Wales to get the Constitution adopted by 80,000 affirmative votes, the Parliament of that State passed certain resolutions. The Legislative Assembly included amongst them a resolution which was taken to the Premiers’ Conference by the right honorable member for East Sydney, and which is of the highest’ importance. The resolutions to which I refer, were submitted to the New South Wales Parliament in August, 1898. The Legislative Assembly of that State adopted the resolution which I am about to read, but the Legislative Council, by a majority of one, affirmed that the Seat of Government should be in Sydney. The decision of that body was, however, ignored by the right honorable member for East Sydney, and he rested his case upon the resolution adopted by the Legislative Assembly, which read -
The Capital of the Commonwealth : -
That clause 124 should be amended, and provision made in the Bill for the establishment of the Federal Capital in such place within the boundaries of New South Wales as the Federal Parliament may determine.
That left it open to this Parliament to have established the Seat of Government at Dalgety, Albury, Broken Hill, Orange, Sydney, or anywhere else. There was no limit imposed upon our action.
– The Attorney-General cannot rub out an agreement.
– Nobody wishes to rub anything out of the agreement. At the same time we do not desire anything to be rubbed into it which is not there. When the right honorable member for East Sydney submitted his proposal at the Premiers’ Conference the right honorable member for Balaclava said “ No. We will not agree to that. We wish to exclude from that portion of New South Wales within which the Seat of Government will be located an area of 100 miles from Sydney.” What I wish to ask is whether that excision of the area of100 miles from Sydney in any way altered the provision with regard to the rest of New South Wales?
– Yes, it is expressed in the resolution.
– Of course it is. But for that bargain having been made, the Federal Parliament could have fixed the Capital anywhere in New South Wales, but because the right honorable member for Balaclava obtained the excision of the area of 100 miles from Sydney, it is argued that that makes an alteration in regard to the rest of the area. With all respect to the right honorable member for East Sydney, I would say that such an argument is nonsensical.
– That settles it.
– It ought to do. I am going to show that, when he returned from the Conference of Premiers, the right honorable member took the view that I am adopting. I find that in the New South Wales Hansard, Vol. 97, page 37, the right honorable gentleman is reported, in the course of the debate on the AddressinReply, to have made the following statement on 2 1 st February, 1899 -
The only desire which our Parliament -
That is the New South Wales Parliament. I may say, in passing, that I do not propose to read the whole speech made by the honorable gentleman - at any rate, which this Assembly expressed, was that the Capital should be fixed somewhere within the boundaries of New South Wales, and when an honorable member of this House definitely tested the question whether I should not go into that Conference with a commission to urge the claims of Sydney to the Capital, the House by a majority of 78 votes to 12 negatived that proposition. So that I was not sent into the conference to advocate the claims of Sydney alone.
The right honorable member is now getting very close to such an advocacy. I find nothing throughout the whole of that speech to suggest that there is any alteration, either in the spirit or in the letter, of the power of the Federal Parliament. On the contrary, I find words as to the power of the Federal Parliament - if it wishes to exercise it - which lead in the opposite direction. There is an expression of opinion that the Federal Parliament will, in fact, establish the Capital somewhere, as near as possible, to the 100-mile limit, but there is no suggestion that good faith would be broken, or that the course would be illegal, if the Federal Parliament should otherwise determine. The right honorable gentleman acquiesced in the observations of the then leader of the Opposition, Mr. Barton, saying -
As the leader of the Opposition pointed out, Melbourne is barred to the extent of 186 miles.
Showing that Melbourne was barred to a greater extent than was Sydney.
– That meant that all Victoria was barred.
– All Victoria. What did Sir Edmund - then Mr. - Barton say on that occasion? I think that his observations are worth reading. At pages 28 and 29 of the volume of Hansard from which I have just quoted, the right honorable gentleman is reported to have given utterance to his own view of the position. I shall be permitted, perhaps, to quote, first of all, a sentence at the end of the passage that I wish to read, because it sums up the position. At page 29, Sir Edmund Barton is reported to have said -
There is only one place for the Seat of Government, and that is the place determined on by the Federal Parliament in New South Wales.
There was no suggestion of a limit at that time. Going back a few lines, I find that Mr. Barton said -
Now for the question of the Capital-
– Was that anterior to the Premiers’ Conference?
– No, it took place in February, 1899, after the resolution had been passed at the Conference of Premiers. It was almost immediately prior to the introduction of the Federal Enabling Bill in the Legislature, of New South Wales.
– What bearing has it upon the question?
– It has a most distinct bearing upon it, and I am sorry that the honorable and learned member does not follow me. It shows that at that time the meaning now sought to be placed upon the words in the report of the Premiers’ Conference, to which reference has been made, was never dreamt of.
– What does it matter? Supposing we had only discovered the meaning to-day ?
– We find that for years New South Wales, and the distinguished men of that State, never dreamt of suggesting any such breach of faith as that to which they now desire to give prominence. After years have elapsed, something has been unearthed of which the Premier of New South Wales says he was not aware, and it is quite contrary to all the acts, words, and suggestions that New South Wales has been placing before the rest of the Commonwealth during this time.
– I quoted Sir Edmund Barton much more explicitly on Saturday last.
– I did not hear the honorable member’s observation.
– The honorable and learned gentleman asked me for the reference to the speech that I was quoting.
– Sir Edmund Barton said that Sydney would be the port through which the export trade of the Federal territory would flow.
– What does it matter?
– That would not be the position if the Capital were established, as the Attorney-General would like it to be, at Tooma.
– Sir Edmund Barton went on to say, on the occasion in question -
It was a very strong desire on the part of many of my fellow citizens - a desire which I did not share, but to which I felt it right to give way - that it should be placed in black and white in the Bill that the Capital should be somewhere in New South Wales ; and to get that concession, which is a concession, it became necessary for the right honorable member at the head of the Government to give a concession in return, and to grant that the Capital should not be placed within 100 miles of Sydney.
What does that mean? Clearly that the Capital should be established anywhere in New South Wales, except within 100 miles of Sydney. Sir Edmund Barton continued -
Let us consider this matter, and see whether it is quite so serious as they suggest. I would rather that it had been the other way, but let us see whether it is quite so serious as some persons outside, notablysundry writers of numerous letters to the newspapers, would seem to make out. If the Capital is a little more, than 100 miles from Sydney, it would still be within a three hours’ rail journey, and I take it that it will be the endeavour - however Federal, and however patriotic minded they may be - of a large number of the representatives of New South Wales, and most of them, so long as considerations of position and climate are faithfully observed, to see that that Capital is not placed too remotely from either Sydney or Melbourne. If considerationsof climate are observed, it will not be very near Melbourne if it is in New South Wales.
Further on he said -
I am not going to point out any place as a suitable site for the Federal Capital. But if we once recognise this position, that it will be a probable necessity agreed upon throughout Australia that the Federal Capital should be placed in some position which has distinct climatic advantages, it will be easy for honorable members to see that the choice to that extent will be narrowed down, and that this distance of 100 miles from Sydney does not work so much against Sydney as it works against Melbourne, for the distance from Melbourne to Albury is 186 miles.
I should mention that, in a few lines which I did not think it necessary to read, Mr. Barton pointed out that the Federal Parliament would probably sit in summer, because there would be six legislatures sitting in the winter, and that, therefore, they would require to select some place with a moderate summer climate. He went on -
Let us recollect that the decision that the Capital shall not be within 100 miles of Sydney is at the same time a decision that if it is placed on that line of railway at all, it shall not be within 186 miles of Melbourne. And when we see that Sydney is giving up a great deal in this matter, we must also recollect that Victoria is giving up a little more, because her distance limit is nearly twice that which you impose upon New South Wales. I think these are considerations which are worth recollecting. They are worth taking into consideration impartially ; and while we may have our regrets on a subject of this kind, it is only fair to recollect that we are placing other people under a much more severe handicap than we are placing the city of Sydney.
Under what more severe handicap is it desired to place Melbourne ? This is a very distinct piece of evidence, that the construction placed by the leader of the Opposition upon the report of the Premiers’ Conference is not borne out by the facts. Let us see what is the next point. On the 9th August, 1904, the right honorable member for East Sydney, after the vote had taken place on the Seat of Government Bill, and after the Bombala, or South-Eastern district, had been accepted–
– Not Bombala. I voted against the selection of that site.
– I am speaking, not of the town, but of the South-Eastern district, comprising an area of land within a radius of fifty miles of Bombala.
– I voted for the; Western district.
– That is so. The right honorable gentleman, speaking on that occasion, is reported in Hansard, Vol. 21, page 3939, to have said : -
I am prepared, so far as I am concerned, as a member of this House, to accept the decision which has been honestly arrived at, without any manipulation of votes - which expresses a preference as between Lyndhurst and Dalgety.
Did the right honorable member then say that that decision was contrary to the compact made at the Conference of Premiers? He said it had been honestly arrived at.
– It was said during the debate that the decision was contrary to the compact.
– But if that were so, it Could not have been honestly arrived at.
– The modus operandi might have been honest, but it might have been adopted on a wrong interpretation
– Is it not reasonable to assume that in that event the right honorable member for East Sydney would have said : “ In the name of New South Wales I object to this. It is entirely contrary to the arrangement arrived at at the Conference of Premiers.” Let us take one step further. I think that I can prove that the Parliament of New South Wales has given an answer to this allegation,, because in December, 1904, it passed the following resolution, which Mr. Carruthers forwarded to the late Government on the nth April last:-
In order to assist in a Constitutional determination of the seat of the Government of the Commonwealth, the Government of this State is authorized to formally offer a grant to the Federal Government of an area of 100 or 200 square miles at or near the following : Tumut, Lyndhurst, and Yass.
Tumut is thirty miles further than is Dalgety from Sydney.
– No; as the crow flies it is twenty-six miles nearer.
– I am not personally familiar with the distances, but I am told that Dalgety is 290 miles from Sydney.
– That is the difference if one goes round by way of Cootamundra and Gundagai; but the direct line is shorter.
– That is the distance by the route which people take to get there. Tumut is .310 or 320 miles from Sydney.
– Does the AttorneyGeneral think that people would always go round by road to get to the Federal Capital ?
– Practically, and for all substantial purposes, there is very little difference in distance from Sydney between Dalgety and Tumut, and, as the New South’ Wales Parliament has said to us, “ We are willing to give you Tumut,” which is practically 300 miles from Sydney, what breach of the compact shall we make if we choose another place which is practically the same distance from the capital. After the resolutions of the New South Wales Parliament were passed, the right honorable member for East Sydney, speaking in this Chamber on the 14th December,. 1904, said -
I understand that the Government of New South Wales submitted to the Legislative Assembly of that State a list containing the names of foul places which might be offered by the Parliament of New South Wales to the Federal Parliament. The Parliament of New South Wales would be absolutely within its rights in any offer that they might make to us. The proposal submitted to the Legislative Assembly of that State was that one of four sites should be offered, and that body, I understand, decided to omit from the list of sites the name of Dalgety. In other words, it determined not to offer Dalgety as a- site for the Federal Capital. If that has happened, it does not in the slightest degree alter the decision arrived at by us, and embodied in an Act of Parliament’ It may amount to an expression of a desire to ask this Parliament to reconsider the decision at which, it has arrived, but the omission of the name from a proposed offer does not alter the decision of thi* Parliament. If it should turn out thai, a majority of the members of this Parliament a-re prepared to repeal the Act which we passed, and choose some site other than Dalgety, the object which I suppose the Legislative Assembly of New South; Wales had in view in omitting the name of that place from its list might be secured. So far as I am concerned - and I think that T may speak for my colleagues - we are satisfied to act upon the choice which has been arrived at by this Parliament. If it be impossible to arrange any voluntary understanding between the State and the Commonwealth, another situation may arise, but it will be time enough to deal with that situation when it arises.
A little later he said -
Although I represent a New South Wales constituency, and will always loyally respect the just rights of that State in every way, I am not likely to forget the duties which I owe to this Parliament in regard to a matter about which 1 think we have the largest share of choice ; because it seems to me that the selection of the Federal Site belongs more properly to the Federal Parliament than to a Parliament which is not to occupy the Federal Capital.
Yet he talks now about our action in flouting the New South Wales Parliament, and about a breach of contract. What is it we hear to-day ? That this Parliament isto be controlled by the Parliament of New South Wales.
– That is substantially what we have been told, because it is said that we cannot have any land that has not been granted to us by the Parliament of New South Wales.
– The Bill only asks for a grant.
– The right honorable gentleman concluded his speech by saying -
I hope that those who have this matter at heart will rest satisfied that the Government will loyally regard the decision of this Parliament, unless it is rescinded, and, so far as I am concerned, any attempt to rescind it will meet with my strongest opposition.
Where is that opposition now? I should like the right honorable gentleman to reconcile that statement with his statement that it is contrary to the spirit of the bond to place the Capital at Dalgety. Does he now intend to resist any attempt to alter the determination of the Parliament?
– An alteration at the time when I was speaking would have made things worse, because Tooma would have been accepted.
– If Dalgety is put aside now, Tooma will be selected.
– I thought so then; but I do not think so now.
– So late as the 8th of this month, the Premier of New South Wales, speaking in the Legislative Assembly of that State - I quote from page 4810 of the New South Wales Parliamentary Debates for the session just concluded - said -
I believe there would have been some result achieved if the Federal Parliament had had the opportunity to consider the deliberate expression of opinion of the State Parliament in regard to the offer of three sites and the rejection of Dalgety. After the resolution had been communicated to the Federal Government, interviews took place between Mr. Reid, Mr. Dugald Thomson, and myself. The result was that Mr. Reid and Mr. Dugald Thomson stated that the Seat of Government Act 1904, passed by the Federal Parliament, was, in regard to the selection of Dalgety as a site, mandatory, final, and binding on the State of New South Wales, thatthe terms of that Act fixing the area at goo square miles, with access to the sea, were open to discussion, but that the location of the territory at Dalgety was mandatory, final, and binding on New South Wales as well as on the Commonwealth.
– My views on the matter were put into writing.
– To one who reviews the history of the provision in the Constitution - the resolution of the New South Wales Parliament in August, 1898, the modification of it made by the Premiers’ Conference, banning Sydney, as the right honorable member for East Sydney said in the State Parliament; the statements which I have read, made by him when Premier of the State, and the then leader of the Opposition. Sir Edmund Barton ; and the attitude of the right honorable gentleman when Prime Minister of the Commonwealth, towards the resolutions of the New South Wales Parliament - it is obvious that it did not occur to these honorable gentlemen that there had been any breach of faith. I think that there should be an end to such charges, which have been brought forward in the despairing attempt to prevent the solution of the question.
– What interpretation does the honorable and learned member put on the words ?
– The interpretation which the right honorable member placed on them until almost the present moment - that the Capital could be placed anywhere in New South Wales so long as it was kept at a reasonable distance from Sydney.
– Then 100 miles would be a reasonable distance,and 900 miles would be equally reasonable.
– I do not think that any place within New South Wales is 900 miles from Sydney.
– Wentworth is over 800 miles from the metropolis.
– If, in the view of the New South Wales Parliament, Tumut is a reasonable site, surely Dalgety, which is not so far away, is also reasonable.
– Dalgety is thirty miles nearer to Sydney than is Tumut.
– Does the Constitution say that the Federal Capital should be exactly 100 miles from Sydney, or not more than 100 miles ? The words “ not less than 100 miles “ mean that the Federal Parliament can choose a site where it likes in New South Wales, so long as it is not nearer than 100 miles from the metropolis.
– The Attorney-General has not read the resolution on which the provision in the Constitution is framed, in conjunction with that provision.
– I cannot repeat what I have said more than three times. I have tried to make my meaning clear, and if the honorable member cannot follow me I cannot hold myself responsible for that. It seems to me that the leader of the Opposition has misconceived the object of the Bill. The Seat of Government Act of 1904 puts no compulsion on New South Wales, and was not intended to do so. What it provides is that the Seat of Government shall be in the vicinity or locality of Dalgety.
– Does the AttorneyGeneral mean to say that it was not intended to fix the Seat of Government, but merely to indicate where the Commonwealth would like to locate it?
– The honorable and learned member must not put words into my mouth. The Act does not delimit the actual territory. It does not declare it to be marked out by certain metes and bounds. All we could do under the circumstances was to provide that the Federal Capital should be within seventeen miles of Dalgety. The superficial area in acres or in miles to be chosen was left an open question, and at the present moment no one can say exactly what area will be taken, or on what site the Capital will be built.
– The Federal Parliament did not mind where the Capital was to be ; it wanted a big fat slice of land.
– The honorable member’s observation has the weight and merit characteristic of his contributions to the debates. The object of the Bill- is to define the area that is to be included in the Federal territory.
– Then the Government assert their right to that territory.
– Keep quiet.
– I do not propose to answer my right honorable friend’s observations now. He lias made his speech.
– Order ! The honorable member for Melbourne must not repeatedly address remarks to the right honorable member for East Sydney. If he had addressed himself to the Attorney-General, I should have raised no objection; but remarks across the chamber, not addressed to the honorable member in possession of the Chair, are very distressing to the speaker, and are extremely disorderly. They also prevent honorable members who are trying to listen to the debate from hearing what is being said.
– - I willingly withdraw any remark I have made, but I wish the right honorable member would not interrupt the Attorney-General.
– The honorable member had better take his gruel quietly.
– The right honorable gentleman had better take his.
– Order ! These interjections are most disorderly, especially after I have just directed attention to the improper course that honorable members have been following. Whilst it is disorderly to interject in such a way as to distract the speaker, it is more disorderly to make remarks across the chamber, and the offence is added to when honorable members dis,obey instructions which have been given from the Chair no less than two or three times.
– The Act of 1904 does not delimit the territory. It absolutely determines one thing, namely, (that ‘ the Capital Site shall be within seventeen miles of Dalgety, and although it expresses a desire - that was put in at the express wish of the right honorable member for East Sydney - that the territory shall contain an area of not less than 900 square miles–
– My desire was, that we should express a wish instead of passing an enactment.
– Exactly. It is plain that there is no enactment in the Act as to the area of the Federal territory. I should like to point out that we have first to mark out the territory. After we have done that, and the territory has been granted or acquired, the Federal Government, acting under the powers conferred by the Constitution, may establish the Capital. The first step to be taken, however, is to mark out the territory, and the next step is to acquire it.
– Then the AttorneyGeneral admits that before the Federal Parliament can fix the Capital Site it is necessary that it should have the land at its disposal?
– Yes, before the Capital is established in fact. But that is all that the Constitution- says on that point. It provides -
The Seat of the Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth.
The question is : How are we to get that territory ? The contention of my honorable friends opposite, and of the New South Wales Government, is that the State authorities must come to us. first, and say : “ We shall grant you a piece of land,” or that we must first acquire the land from private owners, or partly from private owners and partly, from the Crown, as the case may be. They argue, further, that, having done that, we must go to the New South Wales Parliament and ask them if they are willing that the area we have selected shall be the Federal territory. Can that position be sustained? If the Constitution had remained as it was when it was passed by the Convention, and had provided that the Commonwealth Parliament could establish the Federal Capital anywhere in Australia, it would, according to the argument of my honorable friends, be necessary for the Commonwealth Government first to obtain a grant from each of the States, and then determine which of them should be selected as the Federal territory. Is not that nonsense? The argument is that New South Wales must come to us and dictate what territory it is to give; and if it is not willing to give us any particular territory, we cannot obtain it.
– How can the AttorneyGeneral say the State will dictate to us as to what territory it is willing to give?
– If they say : “ We will give you just what we like.” that amounts to dictating where the Federal Capital shall be. We have already determined that the Capital shall be within seventeen miles of Dalgety, and we are going to mark out the territory in New South Wales. And New South Wales cannot stop us from getting that territory. ‘ It was never intended that any State should prevent the people of the Commonwealth from getting their Capital, and great as New South Wales is, and great as is the respect we pay her, our duty to the Australian people is greater still. We mark out the territory containing 900 square miles in Schedule A, and we say that that territory, subject to any addition that it may be necessary to make for the purpose of water supply, is hereby determined to be the territory within which the Seat of Government of the Commonwealth shall be. That is the first practical step. We say : “ That is what we desire for the territory - not the Capital, but the territory.” Then we provide that -
The Minister is empowered to obtain, and” the Governor-General is empowered to accept, on behalf of the Commonwealth for the purposes of the Seat of Government, a grant by the State of New South Wales to the Commonwealth of the territory described in Schedule A to this Act to the full extent to which the territory can be granted by the State within the meaning of section one hundred and twenty-five of the Constitution.
The words “can be granted,” which have troubled the right honorable member for East Sydney, mean this: Under the law, the Crown is the ultimate owner of the land. The Crown may grant a tenancy in fee-simple, or under lease, to any one else. That has been done in regard to some of the land, but the Crown has retained its whole right as to other land. We ask that we may be empowered to obtain from New South Wales the full amount that they have to give - it may be the ownership, undiminished by any tenancy, or it may be ultimate ownership, subject to tenancy in fee-simple, or otherwise, granted to some one else. As a Commonwealth, we ask to be placed in the same position with regard to that territory as the State of New South Wales occupies to-day.
– Does the Minister take the word “grant” to refer to property or jurisdiction ?
– It will refer to jurisdiction undoubtedly, and so far as Crown land is concerned, it will refer to property also, because we provide, in clause 4 -
From the day when the grant and acceptance take effect, all estates and interests held by. any person from the State of New South Wales within the territory so granted and accepted shall continue to be held from the Commonwealth, on the same terms and conditions as they are on that day held from the State.
So that, if this Bill is carried, we shall have the ultimate sovereignty and property in all the land that has never been alienated, and we shall have jurisdiction and authority and sovereignty over all the land that has been alienated, subject to the estates already granted by New South Wales, which, however, will be held by us in the future.
– That is, if we get the grant.
– If the Bill were passed, what could we do beyond asking for a grant ?
– The Constitution says that the Seat of Government shall be determined by the Parliament, and shall be within territory wh]ich shall have been granted to or acquired by the Commonwealth. We do not want to say anything more than is necessary, because of the great respect in which we hold New South Wales. But I take it that once this Parliament has determined upon the territory, the duty will rest on New South Wales to make the grant. The Constitution implies that if New South Wales refuses to make the grant, and the High Court determines that New South Wales is bound to do it-
– Is it certain that we have the power to take an area of 900 square miles ?
– That is another matter.
– It is an important one.
– I grant that. But I was dealing with the matter apart’ from the area. In the first place, it is the duty of New South Wales to make that grant, and it is a grant that will have to be made, so far as Crown lands are concerned, without payment.
– But we should study New South Wales a little bit as to the area we take.
– That is a matter for this Parliament to determine. It may be decided by the High Court that we have gone beyond our power. One of the objects of the Bill is to satisfy the desire previously expressed by the Government of New South Wales that we should put the matter in such a form that it could be tested. As the law stands, it never could be tested. We could not go to the High Court, and say, “Have we taken too much?” We cannot drive a peg in any part of the land. But if we pass this Bill, we shall have delimited the territory, and we can say to New South Wales, 1 ‘ We ask you to make that grant in compliance with your duty under the Constitution.” If New South Wales refuses, and the High Court decides that New_ South Wales is bound to make the grant, the State will no doubt comply. I have no doubt in my own mind - whether I am right or wrong - that New South Wales cannot for ever stand in the way, and prevent this Parliament from obtaining a site for the Capital. I am sure that if the rights of the matter were determined by the High Court, no State would -be more ready than New South Wales to make the grant.
– What? After what has been said by Mr. Carruthers?
– I do not regard Mr. Carruthers as representing New South Wales. New South’ Wales is not going to emulate the example of South Carolina, and set up an insurrection. . I am sure that Mr. Carruthers’ utterances do not represent the sentiment of the people of New South Wales. We provide4. in clause 5 -
Until the Parliament otherwise provides, all the laws of the State of New South Wales in force in the territory granted and accepted shall subject to this or any Act continue in force in the territory as laws of the Commonwealth.
We also make other provisions, which are not material to the present discussion. The Bill is not so futile as the right honorable gentleman has represented. It is in strict accordance with the Constitution as we understand it, and with all honorable understandings as we have understood them, and as they have been understood and acted upon by New South Wales. It provides for a necessary step - a step taken practically at the invitation of the Government of New South Wales, in order that we may ask for’ the territory, and that the New South Wales Government maybe in a position to go to the High Court and raise the question as to our powers in the matter. If we are wrong in the view we take, we shall be beaten when the matter is referred to the High Court. The contention of New South Wales is that we cannot legally determine the site of the Federal Capital and the Federal territory until we have a grant from the State. If that argument is good, nothing we can do can have any effect. New South Wales will always have it in its power to defy the Commonwealth. We do not think it has that power, but we intend to afford the New South Wales Government an opportunity to submit that question to the High Court. As to the statement of the right honorable member for East Sydney, that New South Wales has been flouted because we did not go into Committee to consider the resolutions passed by the New South Wales Parliament, I take it that we are paying the highest compliment ‘ to New South Wales by going into Committee, not upon a futile proposal, but to consider a Bill under which effect can be given to the wishes of that State. It is perfectly within the power of this House, and the Senate, if the numbers are forthcoming, to alter our selection of the Capital Site. I do not think that the right honorable member can get the numbers. I think that we should stand loyally by the decision at which we arrived.
– That decision was in the nature of a compromise, as the AttorneyGeneral ought to know, and it was not in the interests of Australia.
– That is a matter of opinion. If the contention of the right honorable member for East Sydney be correct, the best way in which he can give effect to it is by assisting us to get into Committee upon this Bill.
– That would not have the effect of altering the Act which is upon the statute-book.
– If the right honorable member be correct in his contention, the best thing he can do is to assist us to get into Committee upon this Bill, in order that he may carry an amendment to alter our decision. If the interests of the Commonwealth, and of New South Wales, are to be conserved, we ought to clear out of the way, a matter of considerable controversy - a matter which has blocked legislation in the past, and, which, if not dealt with, will interfere with legislation in the future. Under all the circumstances, I claim that we are justified in asking the House to deal with this Bill in the spirit in which it ought to be dealt with.
– I am not altogether astonished at some of the specious arguments of the Attorney-General. If there is one honorable member who has seemed to me desirous of placing difficulties in the way of the fulfilment of the bond in the Constitution relating to the Federal Capital, it is the honorable and learned member for Indi’I must say that some of the arguments which he has advanced, both by way of interjection, and in his speech to-night, scarcely accord with a dignified treatment of this subject, neither are they creditable to himself. He Has looked at this question from an exceedingly narrow legal stand-point.
– I rested my case to a large extent upon the admissions of the right honorable member for East Sydney.
– I will leave the legal members of the House to answer the legal issues which the AttorneyGeneral has raised. The honorable and learned gentleman appears to view the question of the future Seat of Government in a very peculiar light. He intends to insist on his pound of flesh, and nothing less. >The display of that sort of spirit is not conducive to the peaceful and satisfactory settlement of an important matter between the largest and most populous State of the Union, and the people of the Commonwealth as a whole. If he does not regard Mr. Carruthers’ action as indicative of the opinion of the people of New South Wales-
– Not as to secession.
- Mr. Carruthers has definitely, stated that he is opposed to secession, so that the AttorneyGeneral ought not to make that insinuation. If he does not think Mr. Carruthers represents the opinion entertained by the people of New South Wales, I do not think that he represents the views of the electors of Victoria, or of the rest of the Commonwealth, because 1 feel that they will view this matter, not from a narrow legal standpoint, but from the stand-point of what is fair and honest to the people of New South Wales.
– Did Mr. Carruthers properly report the honorable member?
-I do not know to what the Attorney-General refers.
– I read it in Hansard.
– My attitude towards Mr. Carruthers is upon record in writing, and the At’torney-General is ‘art liberty to quote any portion of it.
– If the honorable member does not deny my statement I am satisfied.
– I do deny it, and I have some justification for my denial. The Attorney-General stated that before the Constitution was accepted the Legislative Council of New South Wales adopted a resolution providing that the Federal Capital should be in Sydney, and that the Legislative Assembly affirmed that it should be “ in such place within the boundaries of New South Wales as the Federal Parliament may determine.”
– It would have been in Sydney if the decision had been left to this Parliament.
– I do not doubt a,t this stage that it would be established in Sydney. I will undertake to say that- the interjection of the honorable member for Herbert is correct, and that the Seat of Government would have been established in. Sydney if “the area within which the choice of the Capital could be made had been New South Wales, as it was by the Assembly’s resolution. I have not the remotest doubt about that. The first Parliament would have met in Sydney, and if it is difficult to get the Seat of Government removed from Melbourne, it would have been far more difficult to get it removed from Sydney. The Conference of Premiers followed, and, in deference to the feeling of New South Wales, as the oldest and most populous State, an arrangement was made that she should be assured of the possession of the Capital. Out of consideration for Victoria, however, a clause was inserted in the Constitution, providing that it should not be within 100 miles of Sydney. I now propose to allude to one of the AttorneyGeneral’s misstatements. He declared that the resolution arrived at by the Premiers had not been brought before this Parliament until now.
– I did not.
– The AttorneyGeneral distinctly said so. He said, in effect : “ Why is this matter unearthed now ; why was it not raised when the selection of the Federal Capital was being considered by this Parliament?” Surely the honorable and learned gentleman must have spoken in ignorance, because I would not accuse him of indulging in absolute misrepresentation. I distinctly brought t01ward the resolution in question before the Dalgety site was selected. Upon the 20tt July, 1904, as will be seen by reference to Hansard, page 3419, I said -
I have also noticed that in certain quarters attempts have been made to have the Federal Capital located as far away from Sydney as possible”; to place it on the borders of New South Wales, and If possible nearer to some other capital than the capital of that State. I think that such action is reasonably regarded by the people of New South Wales as unfair, and in support of that belief, I will quote some of the statements which were made when the matter was being discussed in New South Wales prior to the acceptance of the draft Constitution by the people of that STate. This is a statement as to the resolution which was passed by the Conference of Premiers in 1809 -
I then quoted the resolution, the exact terms of which have already been read by the right honorable member for East Sydney. A little later I said -
There is no doubt that an effort is now being made to do something which is quite opposed to the understanding then arrived at. The effort to which I refer has for its object the location of the capital not “ at a reasonable “distance from Sydney,” burst a place as far away from Sydney as is possible. It is being made one of the conditions of eligibility of a site that it shall be as distant from the capital of New South Wales as it can be. When the question was raised in New South Wales by those who opposed the acceptance of the draft Constitution by the people of that State, certain prominent men in Victoria -replied to the objections of the leaders of the movement against the Bill.
I then quoted some of the statements made by the press and by public men in Victoria. I continued -
I have already shown the spirit in which the Premiers framed the provision in the Constitution after passing a resolution which requires, first, that the Capital shall not be situated within 100 miles of Sydney, and, secondly, that it shall be within a reasonable distance of Sydney.
– That is not what the Premier said.
– What does the Attorney-General mean bv asserting - he must have done so recklessly - that that resolution had not been brought before this Parliament until the eleventh hour?
The facts are reported in Hansard, and, very possibly, the Attorney-General himself was present when I made my statement.
– If the honorable member will read my speech in Hansard, he will agree that he is not correctly stating what I said.
– I know that the Attorney-General has been seriously misunderstood. Some quotations which were made have been denied by him.
– The quotations in question absolutely bore out what I said.
– I will not argue with the Attorney-General if he makes that statement. In my hearing the honorable and learned gentleman said that quite a different complexion could be put upon the words “ reasonable distance from Sydney,” and he promised to show that they meant “reasonably far from Sydney.” I do not pretend that I have quoted his exact words, but I do claim that I have expressed their meaning. He said that, instead of the people of New South Wales being entitled to have the Seat of Government reasonably near to Sydney, the words “ within a reasonable distance of Sydney,” in addition to the 100 miles limit, were inserted1 to keep it distant from Sydney.
– Not less than 100 miles from there.
– The honorable the Attorney-General alluded to the “reasonable distance.”
– Of course.
– Such an argument, if seriously put forward, would do more to disgust the people of New South Wales with the whole arrangement than would anything else. To urge that the agreement by the Premiers that, whilst the Federal Capital should not be within 100 miles of Sydney, provision should be made for its location within a reasonable distance of that city, meant that’ it was not to be established near to the 100 miles limit,, but a great way beyond it, is absurd. Such an argument, if sound, would be considered as an indication that trickery had been resorted to at the Conference.
– As the honorable member has used that word, will he tell me if Tumut is within a reasonable distance of Sydney? The New South Wales Parliament has said in effect that it is.
– f shall deal presently with that point. I am not defending the Parliament or the” Ministry of New South Wales ; I shall have reason to admit that they have not acted always in the best interests of that State. The Attorney-General actually quoted a speech made by the right honorable member for East Sydney, after the Conference of Premiers, with the object of showing that it afforded good ground for the argument that :he words “ a reasonable distance from Sydney “ do not convey the meaning which they clearly express. In this speech, the right honorable member for East Sydney said he had no doubt that the Federal Parliament would fix the Capital near the 100mile limit.
– But he let it be understood that it could establish it wherever it pleased.
– The question of power is one matter and that of justice is another. The honorable and learned member, in the course of his speech, dealt with the matter entirely from the point of view of power, and absolutely neglected the consideration of justice.
– The honorable member endeavoured to show, by quoting; from a speech made by’ the right honorable member for East Sydney, that it was the desire df the late Ministry to flout the Parliament of New South Wales. That speech certainly did not bear the construction which’ the Attorney-General placed upon it. The honorable and learned gentleman failed entirely to remember what has been stated quite recently in this House, that, as Minister of Home Affairs in the late Government, I had absolutely announced to the press, on behalf of the Ministry, that the resolutions passed by the Parliament of New South’ Wales were not to be flouted, but, on the contrary, were to be taken into consideration by this Legislature. This same point was raised in October last. I was absent at the time, but I telegraphed to the deputy leader of the Opposition that an announcement had been made by the late Ministry that the resolutions of the New South Wales Parliament were to be brought before this Parliament for consideration. I referred him to a paper which, among others, gave my statement in that connexion as the decision of the Ministry. On the roth June last, the Sydney Daily Telegraph, as well as other newspapers, published a paragraph based on the information supplied by myself that -
It is the intention of the Government to submit the Federal question at an early date to Parliament.
Not in the last hours of the session, but at* an early date -
The procedure will probably be by way of resolution, although it has not yet been determined. The proposal is to allow the whole subject to be discussed, and the resolutions adopted by the New South Wales Parliament to be considered.
The weakness of the Attorney-General’s argument is shown by the fact that he endeavoured to twist a chance remark made by the right honorable member for East Sydney-
– A chance remark ! That was the inference to be drawn from the whole speech.
– The AttorneyGeneral sought to draw the inference from a chance remark that the late Government were determined that the resolution passed by the New South Wales Parliament should not be treated with courtesy, and that that Parliament was to be flouted. As a matter of fact, he knew that a statement had been quoted in Parliament showing that I, as the Minister responsible for matters relating to the Federal Capital, had stated to the press that these resolutions would be placed before this Legislature for consideration.
– Why did not the honorable member carry out his intention?
– Because we were not allowed to remain in office.
– The late Government were in office on the roth June last.
– Parliament was then in recess.
– But the late Government met the Parliament later on.
– The honorable member is assuming an innocence which suits him better than it does the AttorneyGeneral. The honorable and learned gentleman, with singular audacity, has quoted a speech by the right honorable member for East Sydney, in which he said that the resolution passed by the Parliament of New South Wales had not in the slightest degree altered the decision of this Parliament. That is perfectly correct. But the right honorable member added, as the Attorney-General himself admitted - and this is where the audacity comes in - that if a majority of the Parliament were prepared to alter that decision, that, of course, was a different matter. As Prime Minister, however, he did not ‘ propose to depart from an Act which Parliament itself had passed. Is not such a position entirely understandable? If it is not, is it possible to understand the position of some of the AttorneyGeneral’s colleagues? The Minister of Home Affairs supported the selection of another site, and yet he is now standing by the decision of the Parliament to select Dalgety. I am not blaming him for his present action. I think that he is acting legitimately. But why should exception be taken to members of the late Ministry adopting a similar attitude? Were we not the Executive of Parliament? Is a Ministry to say that it will enforce those portions of an Act of Parliament with which it agrees, and that it will not enforce those with which’ it disagrees? That would be an. absurdity. I think that it redounds to the credit of the late Ministry that, although the right honorable member for East Sydney said that he would have preferred another selection, he would not allow his personal predilections to interfere with the instructions he had received from Parliament. That is the position which I took up. We would not allow our personal predilections to interfere with the carrying out of the decision of Parliament, and we both did our best to have the question settled upon the basis fixed by this Legislature. We used our best endeavours to that end just as if we agreed with every line of the Seat of Government Act.
– Is the honorable member going to vote with me?
– I would advise the honorable gentleman to possess his soul in patience, and to remember that, wherever the Capital is established, there he will go. Even if Lake George be selected, he will probably be found its representative. The Capital and the honorable member must go together. Then the honorable and learned gentleman said that, according to Mr. Carruthers, the late Prime Minister and I had informed the latter that the selection of Dalgety was mandatory, and binding on New South Wales.
M.r. Austin Chapman. - And conclusive.
– I used the words “ mandatory, final, and binding.”
– What we stated in that respect was put in writing, and is to be found in the Department of Home Affairs.
– Hear, hear. It forms part of a memorandum.
– What I stated in that memorandum was that one part of the Act - that relating to the establishment of the Capital within seventeen miles of Dalgety’ - was mandatory, but that the provisions as to access to the sea, and as, to the area, were simply suggestions, and could be dealt with by way of negotiation.
– As well as the particular site of the Capital.
– Yes ; but it was to be within seventeen miles of Dalgety. That was mandatory on the Government of the Commonwealth, but not on the Parliament of New South Wales. That was the difference. I do not accuse the honorable and learned gentleman of having intentionally misquoted Mr. Carruthers’ statement in any way, but the assertion that the right honorable member for East Sydney and I declared that the Act was mandatory on New South Wales is wrong. We made no such statement. If the Minister of Home Affairs wishes to see what we said he has only to turn to the correspondence.
– I have read the statement. I think that it is reproduced in our letter to the New South Wales Government.
– We said that the decision of Parliament was mandatory as to the site being within seventeen miles of Dalgety.
– Our view is that the whole Act is mandatory.
– Until it is altered by Parliament.
– We also say that it is binding on the State of New South Wales until it is altered.
– That may be the view of the present Government, but the late Government did not go so far. W< said that anything except the Capital being within seventeen miles of Dalgety was a question for negotiation. The AttorneyGeneral also made a statement which is calculated to do a great deal of harm, and to breed . between the Commonwealth and one of the States that bad feeling which he professes a desire to see avoided. He said that the Commonwealth was going to get what it wanted in regard to Dalgety, and that New South Wales was not going to stop it. That is not the way to speak on occasions such as this.
– The right honorable member for East Sydney asked me what would be done if New South Wales refused to grant the territory?
– The hon- or able and learned gentleman said that the Commonwealth is going to get Dalgety, and that New South Wales would not stop her.
– If the Federal Parliament said so.
– Language of that sort is not calculated to breed the calmer feeling which, if we act wisely, both Commonwealth and State representatives will try to produce. It is a small and paltry thing to allow little irritations to cloud great matters. If other men have said what they ought not to have said - as I admit they have ; if they have done what we cannot approve of - and such things have been done by some of the Governments of New South Wales, we should be larger minded than to take notice of the fact, and should do our best to put an end to the friction which has been caused by the harsh and hasty words which have been used by one side or the other.
– I said what I did because of a question put by the right honorable member for East Sydney.
– I only know what the honorable and learned gentleman said, and I took down his words when he uttered them. They were not wise words, especially in view of the fact that the Bill asks for 900 square miles of New South Wales territory, while the Constitution . says that the territory shall consist of not less than 100 square miles. That sort of threat cannot do anything to assist a settlement of the question.
– If the honorable member reads my speech coolly to-morrow, he will see that I did not make a threat.
– The honorable and learned gentleman cannot deny that he said that the Commonwealth was going to get that territory, and that New South Wales would not stop her. I am amused at his suggestion that it is a compliment to the New South Wales Parliament to have this Bill brought in, and to allow its resolutions to be discussed in this connexion. The Parliament of New South
Wales is interested by law in the settlement of the Federal Capital question, and has passed certain resolutions. Whether it was desirable to pass those resolutions is another question. But it is a strange thing to say that the ignoring of them, and the bringing in of a Bill which takes no account of them, is a compliment to that Parliament. Still I do not wish to raise any angry feeling in this matter. I have deprecated certain remarks of the Attorney - General as likely to create such feeling; and I wish to have the matter considered calmly and quietly, to discover if there is any good reason for the feeling which exists in New South Wales, and which has driven the Premier of the State from his first stand, and made him entirely opposed to the selection of Dalgety. We wish to ascertain if there is any reason for that feeling, and if so, what means there is of allaying it, and securing a settlement which will be just to both the State and the Commonwealth. As a private member, I am in a position different from that of Ministers, or that which I occupied when a Minister, and I have a perfect right, under the present circumstances, to consider whether weshould stand by our first determination, viewing the matter with the desire to do justice to the State, and to select the best site obtainable in the interests of the Commonwealth. I admit that New South Wales Ministers have been to blame in some of. their proceedings. In one case a State Ministry, when asked by the Commonwealth Government to take the responsibility of suggesting a site, refused to do so, possibly because they were afraid of creating discord in the ranks of their supporters. Then I do not think that the New South Wales Parliament should have left Dalgety out of its list of suggested sites. It should rather have asked for a reconsideration of the position. This Parliament, too, has made mistakes. I do not wish’ to go into those matters. This is not a question between Ministry and Ministry. What we have to remember is that dissatisfaction exists in one of the States for which there is some justification, and that is all we need consider. We need not pay regard to the fact that certain Ministers have said this or that. We may admit, if necessary, that some of them have been mistaken. Possibly the Reid-
McLean Administration was mistaken in some of its acts, though I do not admit it as regards this question. That is not the issue now. What we have to consider is the best course to take to secure the selection of a site most suitable for the Commonwealth and satisfactory to the State of New South Wales. I admit that Dalgety has some recommendation, although I never voted for it as my own choice.
– The honorable member said that the selection was final and binding.
– The Minister is quite wrong. He is taking as his authority a statement made by the Premier of New South Wales, whose words he will shortly be questioning.
– The honorable member says so in his memorandum.
– All the reference I made as to the mandatory nature of the provision in the Act is contained in that memorandum.
– Mr. Carruthers says that the honorable member had a number of interviews with him.
– I said nothing at those interviews which could be construed in the way that the Minister suggests. All that I said is contained in the correspondence on that head which can be referred to. The greatest recommendation that Dalgety possesses is the river which flows through it. I contend that, in the interests of Australia and of New South Wales - but more particularly in those of Australia - Dalgety is not the best site for the Federal Capital. It is away in a corner of New South Wales, and, more than that, is in a loop of the mountains. In order to reach some places40 or 50 miles distant, long detours have to be made. There is no railway at present connecting the site with Sydney, and it will be many years before there is a railway connecting it with Melbourne via Bairnsdale. That railway will have to pass through very rough country, and the speed of trains will always be slow. I wonder that honorable members from other States do not see that they will place themselves at a great disadvantage by making such a selection.
– They have their eye on Tooma.
– There is one strong objection to Tooma that cannot he overcome, namely, that it is right on the border.
– What is wrong about that?
– I know that the Attorney-General does not see anything wrong in that; he voted for a site on the border. I do not think, however, that he can uphold his view and at the same time pay full regard to the Constitution and the Premier’s memorandum, which shows clearly what was intended. I have already stated that as one of the Executive, I did my best to carry out the expressed will of this Parliament.
– The honorable member said that Dalgety must always be a purely New South Wales town.
– So it must. I stated that owing to the rough nature of the railway which would connect it with Victoria, it must always remain a New South Wales town. Dalgety is not the best situation for the Federal Capital, because it is not easy of access from the various Capitals. The Departments will have to be located at the Federal Capital, and there will be constant intercommunications between those Departments and the various States. The Capital should be placed in a portion easily accessible, and offering facilities for rapid transit. I have already pointed out that New South Wales has been led by the action of this Parliament to believe that only a site far distant from Sydney will have any chance of selection. This has created feeling. The people have lately been confirmed in their original impression that the Federal Parliament wishes to, fix the Capital Site as far as possible from Sydney, and are still more angered because it appears to wish to evade the explicit statement in the Premier’s manifesto that the site should be within a reasonable distance of Sydney. I say that there are many other sites that would be better in the interests of the Commonwealth, and infinitely fairer to New South Wales. If one of these were chosen, it would do away with the present complaint, and certainly render it unnecessary for us to pass a measure that is designed, as the Attorney-General has said, so that the Federal Government may obtain from New South Wales the territory required, whether that State likes it or not. The exact words of the AttorneyGeneral were that the Commonwealth was “going to get the territory,” and that “ New South Wales is not going to stop it.’”
– That is not a fair representation of what I said.
– It is word for word what the Attorney-General said. The AttorneyGeneral cannot put a gloss on his own words.
– If there is any liability of selecting the wrong site, why should we not pause? Our final decision will commit the Commonwealth for all time to a particular site, and if there are doubts amongst honorable members - and I am sure there are amongst half the members of this House - as to the wisdom of our previous decision, why not consider before we go further? The remarks! made by myself and others in regard to the memorandum of the Premiers’ Conference received very little attention when they were made. The House was then engaged in a scramble, groups of honorable members endeavouring to get votes for particular sites. Each individual member was endeavouring to get support for the site which he favoured, and efforts were being made, both within the Chamber and out-< side, to push the claims of certain localities. The consideration that should have been given to various arguments was not given, as is shown when it is denied that this resolution of the Premiers’ Conference was brought forward at an earlier stage. There is no doubt that the resolution was quoted, but, as I have said, there was then a battle as of particular sites, and considerations which should have guided us in the choice were neglected. We are in a different position to-day, seeing that we have selected a site to which the State most concerned very strongly objects. The State has not objected altogether, because of the distance from Sydney, although there was reason to .do so, ih view of ,the revival of the memorandum of the Premiers. The objection of the State is, that nothing like the best site has been selected, and, if we find that a number of usually fair-minded people and strong Federalists are roused on this matter, and talk about secession - although I do not agree with that language - I think we ought to pause in order to inquire whether there is any reason. If there is merely a colour of injustice, I think we ought to take time for consideration. Of course, my suggestion may mean a little delay, which will, perhaps, not be altogether in the interests of New South Wales, bearing in view the desirability of having a Capital wo/thin the borders of the State at the earliest possible date. However, I urge that we should carefully reconsider the matter before we proceed further. The question may be deferred- until the following session. We are really considering this Bill with an invitation to the prorogation in our pockets.
– There is no date on the invitation.
– Well,, what does that mean ? It can only mean that the prorogation is so near, that if theprinting of the invitations were delayed, it would be too late to print them. In national affairs of.this kind, particularly when there is inflamed feeling on one side or the other, or on both, and more particularly when the feeling is between fellowcitizens of the Commonwealth, it is desirable to allow time for calm consideration. Surely it is better to allow a little time to elapse until the friction and the memory of hard’ words have passed away. We shall then bein a cooler and calmer atmosphere, with fuller knowledge of all the facts and circumstances. Such delay, as I have suggested, would be in the interests, not of one State, but of all the States, and, at all events, will tend to do justice to that State which more directly than any other is concerned inthis question.
Debate (on motion by Mr. Watson) adjourned.
Mr. SPEAKER announced the receipt of the following message from the Senate: i -
The Senate returns to the House of Representatives the Bill intituled “ A Bill for an Act relating to Copyright,” and acquaints the House that the Senate has agreed to numbers i, 2, 4, 5 of theamendments made by the House of Representatives, and has agreed to amendment No. 3, with a consequential amendment in clause 75, as indicated in the annexed schedule.
The Senate desires the concurrence of the Houseof Representatives in the consequential amendment in clause 75.
That the Senate’s Message be considered forthwith.
– I move -
That the amendment be agreed to.
I may explain that the amendment is con< sequential on the omission of the clauserelating to newspapers’ cable messages.. The Senate agrees to the omission of that clause, with’ the consequential amendment that in sub-clause 3, after the word’ “ right,” the following words shall be left out, “nor the right of the proprietor of a newspaper or news agency to bring actions or suits,or institute proceedings for infringements of the exclusive right conferred upon him by section 34 of this Act.”
– That leaves everything as before.
– That is so.
Question resolved in the affirmative.
Resolution reported; report adopted.
Bill returned from the Senate with amendments.
Mr. EWING laid upon the table the following paper: -
Report by Captain Collins on Canadian Defences and Defence Administration.
. -I move -
That the House do now adjourn.
As I do not move a motion for the adjournment to an unusual hour, the motion will mean that we shall meet to-morrow at half -past 2, instead of half-past 10 in the morning.
Mr. JOSEPH COOK (Parramatta).”Why the altered hour of meeting to-mor- row? We have been sitting at half-past 10 o’clock in the morning for the last fortnight or so. Why should a change be made when the Federal Capital question is under consideration ?
Mr. DEAKIN (Ballarat - Minister of External Affairs). - Ministers are very much in arrear with the business of their Departments; but if the honorable member thinks that meeting at half-past 2 will operate as a check on the debate on the question he has mentioned, I will withdraw the motion.
Motion, by leave, withdrawn.
Motion (by Mr. Deakin) agreed to -
That the House at its rising adjourn until tomorrow at10.30 a.m.
House adjourned at 11. 1 p.m.
Cite as: Australia, House of Representatives, Debates, 18 December 1905, viewed 6 July 2017, <http://historichansard.net/hofreps/1905/19051218_reps_2_30/>.