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House of Representatives
30 July 1912

4^th Parliament · 3^rd Session

QUESTION
- DEPARTMENT OF DEFENCE
QUESTION
- TRANSCONTINENTAL RAILWAY
QUESTION
- FEDERAL CAPITAL
QUESTION
- PROTECTION OF MEMBERS
QUESTION
- ALLEGED CANCER CURE
PAPERS
DEATH OF THE MIKADO
QUESTION
- KALGOORLIE TO PORT AUGUSTA RAILWAY
QUESTION
- IMPORTATION OF OPIUM
QUESTION
- MEAT TRUST: EXPORT DUTY
QUESTION
- CUSTOMS STATISTICS
QUESTION
- ELECTORAL ADMINISTRATION
QUESTION
- DEFENCE
QUESTION
- ELECTORAL DIVISIONS: QUEENSLAND AND WESTERN AUSTRALIA
QUESTION
- POSTMASTER-GENERAL’S DEPARTMENT
ROYAL COMMISSIONS BILL
QUESTION
- ELECTORAL DIVISIONS : WESTERN AUSTRALIA
NAVIGATION BILL
- Second Reading

Mr. Speaker took the chair at 3 p.m., and read prayers.

page 1375

– I desire to ask the Minister representing the Minister of Defence, without notice, whether the Government have decided either to purchase or resume “ Red Leaf “ for military purposes.?

Mr ROBERTS:

– No such decision has been arrived at.

page 1376

QUESTION

TRANSCONTINENTAL RAILWAY

Mr CANN:
NEPEAN, NEW SOUTH WALES

– I wish to know from the Minister of Home Affairs whether it is his intention to establish ‘ and maintain stores along the route of the line from Kalgoorlie to Port Augusta to supply those employed on the construction of the railway?

Mr KING O’MALLEY:
Minister for Home Affairs · DARWIN, TASMANIA · ALP

– We intend to do so after we have .got away from Kalgoorlie and Port Augusta.

Mr JOHN THOMSON:
COWPER, NEW SOUTH WALES

– Before the Minister commits himself in this matter, will he communicate with the Secretary for Public Works in New South Wales, who determined to do, in connexion with a NewSouth Wales line, what the honorable member for Nepean has suggested should be done in connexion with the transcontinental railway, but later decided not to go any further in the matter? Will the Minister inquire of the Secretary for Public Workswhy he came to that decision, so that he may know whether it would be worth his while to do what has been suggested?

Mr KING O’MALLEY:

– Yes.

Mr HIGGS:
CAPRICORNIA, QUEENSLAND

– I wish to know, from the Minister of Home Affairs, whether he considers it a good thing to hand over the transcontinental railway to the Governments of the States?

Mr KING O’MALLEY:

– The matter referred to by the honorable member was a suggestion from- the States. The question will have to be decided by those who will run the road after it is constructed.

page 1376

QUESTION

FEDERAL CAPITAL

Mr J H CATTS:
COOK, NEW SOUTH WALES

– I wish to know, from the Minister of Home Affairs, if he is doing anything serious in regard to the establishment of the Federal Capital?

Mr KING O’MALLEY:
ALP

– As we have acquired 85,000 acres of land within the last week or two, and are pushing on with the work of the Federal Capital as. fast as possible, I do not understand the question.

page 1376

QUESTION

PROTECTION OF MEMBERS

Mr WEST:

– I wish to ask you a question, Mr. Speaker, as to the right of members to protection. Since the adjournment, the honorable member for Parramatta attended a meeting at Sydney, and, while replying to statements concerning theFederal ‘ Parliament, was counted out. - .1 ask whether you can afford protection to honorable, members under such circumstances? ‘

Mr SPEAKER:

– It is not usual to put questions to the Speaker. If any statement has been made concerning the honorable’ member which he desires to correct, he may make a personal explanation. .

page 1377

QUESTION

ALLEGED CANCER CURE

Mr W J JOHNSON:
ROBERTSON, NEW SOUTH WALES · ALP

– I wish to ask the Minister of Trade and Customs whether his attention, has been drawn to a paragraph which has appeared in the press to the following effect : -

The Health Commissioners were told yesterday by Dr. Burnett Ham (the Chairman) that an analysis of an advertised cure for cancer showed that it consisted of starch (bread) 24.43 per cent., water 75.57 per cent., and borax. 4¼ grains. The price was is. 6d. for a 20z, bottle. The label on the bottle described it as “ The remedy for the world. Cures blood-poisoning, pleurisy, pneumonia, erysipelas, and all inflammations, typhoid, and other fevers, and cancer in all its varied forms.”

Will the Minister take steps to prevent the introduction of these fraudulent compounds ?

Mr TUDOR:
Minister for Trade and Customs · YARRA, VICTORIA · ALP

– If the article referred to in the paragraph quoted by the honorable member is imported, the Department will take steps to prevent its introduction; but if it is manufactured in Australia, we cannot take any steps in that direction until the people give us the power. We cannot prevent the manufacture and sale of such good’s in any State ; but the Department has prevented thousands of such quack medicines coming into Australia during the last two or three years..

page 1377

PAPERS

MINISTERS laid upon the table the following papers : -

Arbitration Court - Return showing Numbers of Awards, Compulsory Conferences, Agreements Filed, and Employes Affected.

Conciliation and Arbitration Act - Regulations Amended, &c. (Provisional) -

Statutory Rules 1912, No. 93.

Statutory Rules 1912, No. 153.

Defence Act - Regulations Amended, &c. (Provisional) -

Universal Training -

Statutory Rules 1912, No. 145.

Statutory Rules, 1912, No. 148.

Statutory Rules 1912, No. 151.

Military Forces -

Regulations -

Statutory Rules 1912, No. 144.

Statutory Rules 1912, No. 149. Financial and Allowance Regulations -

Statutory Rules 1912, No. 150.

Patents Act -

Regulations - Statutory Rules 1912, No. ‘76.

Regulation (Provisional) - Statutory Rules 191 2, No. 129.

page 1377

DEATH OF THE MIKADO

Mr FISHER:
Prime Minister and Treasurer · Wide Bay · ALP

– I should like to inform the House that owing to the regrettable death of the Mikado, I have despatched the following message to His Excellency the Governor-General, asking him to transmit, through the Secretary of State, the sympathy of Australia with the nation which is in alliance with the United Kingdom -

I have the honour to invite your Excellency to be so good as to despatch a cablegram to the Secretary of State for the Colonies conveying, on behalf of the Commonwealth Government and people of Australia, an expression of sympathy with the Japanese nation in the loss they have sustained through the death of their beloved Mikado.

Mr DEAKIN:
Ballarat

.- I am perfectly certain that this Parliament, and the.Commonwealth as a whole, will countersign that cablegram in sincere sympathy with the loyal, gallant, and gifted people who have sustained so severe a loss.

page 1377

QUESTION

KALGOORLIE TO PORT AUGUSTA RAILWAY

Timber for Sleepers

Sir JOHN FORREST:
SWAN, WESTERN AUSTRALIA

asked the Minister of Home Affairs, upon notice -

Has he decided the kind of timber that is to be used for sleepers on the Trans-Australian Railway ?
What is the average life of jariah sleepers on the Western Australian Government Railways ?
Are karri sleepers in use on Government railways in Western Australia?
What average life is claimed for “ Powellised “ karri, and on what number of years’ use is that opinion based?
Does he think it wise to take the risks of using other than that timber which has by long experience proved to be best?
Has any arrangement or understanding been entered into with the Government of Western Australia as to supplying “ Powellised “ karri for sleepers for the Trans-Australian Railway?
Has Mr. Deane, the Engineering Adviser of the Government, recommended any particular timber for use on the Trans-Australian Railway?
If so, will he place such report on the table of this House?

Mr KING O’MALLEY:
ALP

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

The matter is now receiving careful consideration.
The average is stated to be fifteen years, but there are sleepers which have been over twenty years in the road.
Yes.
Karri, after treatment, is expected to be more durable than jarrah. “ Powellised “ karri sleepers have been in the road in Western Australia since November, 1906, and are reported to be as good now as . when put down.
According to data collected by Mr. Deane there is no risk.
No. 7 and S. The matter is now receiving consideration.

page 1378

QUESTION

IMPORTATION OF OPIUM

Relations with China.

Mr HIGGS:

asked the Minister of External Affairs, upon notice -

What is the understanding or agreement between Great Britain and China with regard to the importation of opium from the British Empire into China?
How long has China been appealing to

Great Britain to desist from sending opium into China?

Has the Imperial Government recognised the new Republican Government of China; if not, why not?
Is the Commonwealth Government consulted by the Imperial Government in regard to such Empire matters as the foregoing?

Mr HUGHES:
Attorney-General · WEST SYDNEY, NEW SOUTH WALES · ALP

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

In 1907 an agreement was made that the export of opium from India to China should be decreased by one-tenth annually subject after the year 1910, to proof that China was carrying out its share of the arrangement by which the manufacture of locally-produced opium was to be periodically reduced:

In 1910 a further agreement was signed, confirming the previous arrangement for periodical reduction, and providing that Great Britain would stop the export of opium to China at an earlier date, if it is shown that China has ceased producing native opium.

This Government has no knowledge re garding such appeals if they exist.
This Government have no advice on the subject, but inquiries are being made.
The Commonwealth Government were not consulted regarding the foregoing matters, but there is no reason to believe that the Imperial Government will fail to consult the Government of the Commonwealth in any cases where Commonwealth interests are concerned.

page 1378

QUESTION

MEAT TRUST: EXPORT DUTY

Dr MALONEY:
MELBOURNE, VICTORIA · ALP; FLP from 1931; ALP from 1936

asked the Minister of Trade and Customs, -upon notice -

Whether, in view of the unchallenged data re the evil of the Meat Trust, he will, when the Tariff is introduced, take into consideration the need for an export duty on meat whenever the selling price of Australian meat in London is less than the price at which Australian meat is sold to the citizens of Australia?

Mr TUDOR:
ALP

– This question has already received attention ; but, owing to the varying influences affecting the prices in distant markets, frequently due to causes entirely distinct from those of the localities of production, it is considered the course suggested would not successfully attain the object in view.

page 1378

QUESTION

CUSTOMS STATISTICS

Mr FENTON:

asked the Minister of Trade and Customs, upon notice -

Is he aware that at the present time it is impossible to obtain information in respect to each class of goods imported- into Australia from abroad?
If he will have such alteration made in the preparation of Customs statistics so that each item of imports and their value will be easily ascertainable ?

Mr TUDOR:
ALP

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

Yes.
I doubt if such a course would justify the very great cost of compilation and publication.

The number of items, or groups of items, in the Statistical schedules of the Commonwealth and certain other countries are as follow : -

Whilst we would not be justified in attempting to separately distinguish for publication each individual item of imports, I shall . be glad to give careful consideration to any item the importance of which to Australian industry may possibly justify its inclusion.

page 1378

QUESTION

ELECTORAL ADMINISTRATION

Electoral Rolls: Failure to Sign Claim Cards. - Report on the Card System. - Non-delivery of Enrolment Notices. - Compulsory Enrolment : Notice to Electors. - Double Voting and Impersonation. - Rearrangement of Electoral Boundaries : System of Dealing with Reports.

Mr SINCLAIR:
MORETON, QUEENSLAND

asked the Minister of Home Affairs, upon notice -

Whether it is a fact that there arethousands of names of. persons on the Commonwealth electoral rolls who have not signed electoral claim cards?
If so, are such electors entitled to vote at a general election, either in their own division,or as absentees?
Are such electors liable to prosecution under the compulsory provisions of the Commonwealth Electoral Act?

Mr KING O’MALLEY:
ALP

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

Less than 4½ per cent, of the cards are outstanding.
They will be -entitled to vote unless their names are removed from the rolls under the provisions of Part “VII. of the Electoral Act, as a result of the investigation by the Commonwealth Electoral Officer which is now proceeding.
Qualified persons at whose habitations cards were left or to whom cards were delivered ‘.or sent’ by post when the new rolls were being prepared tender themselvesliable to prosecution under the regulations (Statutory Rules 191 1, No. 82) if they fail to complete and return the bards.

Sir JOHN FORREST:

asked the Minister of Home Affairs, upon notice -

Will he explain what he means by his reply to a ‘question on 17th July, in regard to electoral compulsory enrolment that “ when electors refuse to enroll, a second notice is served upon them, and they are again urged not to put themselves fo any: cost”?
. Has the Minister any report on the success or . otherwise of the system?
What is proposed to be done in regard to persons who do not comply with the law?

Mr KING O’MALLEY:

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

Compulsory enrolment is proceeding satis-, factorily. Electors have been, or are being, individually notified throughout the Commonwealth -
1. of receipt of their claims; and
2. of the requirements of the law with re spect to future re-enrolment where such action becomes necessary through change of residence.
The rolls resulting from the initiatory canvass in each State have been, or are now being, exhibited as they are printed ; and a notification explanatory of the law is being displayed at public buildings throughout the Commonwealth.
With regard to contraventions of the law rela’tingto compulsory enrolment, action will be taken in due- course by the responsible officials to give effect to the requirements of the law in the manner prescribed by the regulations.

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

asked the Minister of Home Affairs, upon notice -

. Whether it is a fact that a large number cf electoral enrolment notices sent out from his Department has been returned through the postoffices ?
What number has been so returned from each electorate respectively ?

Mr KING O’MALLEY:

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

When the postal authorities are unable, from any cause, to deliver electoral communications notifying enrolment, the communications are returned . to the Commonwealth Electoral Officer for the State.
It is not considered necessary to record the number of notices returned through the Dead Letter Office, as no action in respect to enrolment is required to be taken thereon. When the electors concerned secure new enrolments by reason of change of residence the enrolments to which the returned communications refer are cancelled, and fresh notices are issued.

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

asked the Minister of Home Affairs, upon notice-

Whether he will have notices posted in every post-officeor electoral’ registrar’s office through out the Commonwealth setting forth the compulsory enrolment section of the amended Electoral Act and the penalties for non-compliance therewith, with a view to making the amended! law more generally known?

Mr KING O’MALLEY:

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

This action has been taken, and arrangements are also being made to utilize railway stations and other public buildings throughout the Commonwealth.

Sir JOHN FORREST:

asked the Prime. Minister, upon notice -

Whether he thinks the present system of dealing with the recommendations of Commissioners for the re-arrangement of the boundariesof electorates is satisfactory ?
Whether he thinks that the time has arrived1 for placing this important matter, which is really the foundation of our Parliamentary system, on a stronger and . better basis by making the Boards of Commissioners the strongest and best tribunal possible, and making their decisions final and conclusive ?

Mr FISHER:
ALP

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

It is probably only less unsatisfactory than other known systems.
The matter is one that will receive consideration.

Sir JOHN FORREST:

asked the Minister of Home Affairs, upon notice -

Is he aware that, as far as the Electoral Department was concerned, at the last general election any person could have voted more than once, going to more than one polling booth and voting, and that the Returning Officer had no power to investigate or report on the matter?
Is there any reason for not enacting that Returning Officers, when making a return to the writ, shall report as to what persons (if any) had appeared to have voted more than once at the election in their divisions, or had appeared to have impersonated some other person?

Mr KING O’MALLEY:

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

Under the law the certified rolls are at the close of the polling placed in sealed parcels, which are held intact for production, if required, to the Court of Disputed Returns. There is nothing to prevent a comparison of rolls being made at a later stage, and, as a matter of fact, a considerable number of selected rolls were compared after the 1906 and 1910 elections without disclosing any fraudulent voting of the character indicated.
It is considered that the comparison of certified rolls throughout the Commonwealth prior to the declaration of the polls, as suggested, would not be of any value, inasmuch as all electors are questioned at the booths; and it is highly improbable that a person intent on fraud would vote more than once in his own name or would select the name of a person who could; himself vote. I would draw the right honorable member’s attention to my reply to a question asked by him On the 17th inst.

page 1380

QUESTION

DEFENCE

Horse Breeding in the Northern Territory. - Sydney Barracks : Double Bay Site. - Salaries of Officers.

Mr CHANTER:
RIVERINA, NEW SOUTH WALES

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

Has the Minister given any consideration to the advisability of breeding suitable horses in the Northern Territory for military and other purposes ?

Mr ROBERTS:
ALP

– The question of breeding horses in the Northern Territory and other parts of Australia is being considered by the Minister.

Mr KELLY:
WENTWORTH, NEW SOUTH WALES

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

With reference to the following question and answer in Parliament on the 24th inst. : - “ Mr. Kelly. - From whom did the Minister understand that Redleaf was available “ ? “ Mr. Roberts. - The information was obtained by the Minister personally from private sources when in Sydney.”

Did the Minister intend to convey that he was determined to keep “ private “ the origin of a proposition which would involve the expenditure of more than One hundred thousand pounds of public money?

If not, will he inform the House who first suggested to him the purchase of Redleaf and ther properties and the reclamation of half of Double Bay as a site for the barracks in Sydney?

Mr ROBERTS:

– The Minister furnishes the following reply : -

The Minister has nothing further to add to the replies already given.

Mr WATKINS:
for Dr. Maloney

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

How many officials in the Defence Department are in receipt of £300 to £400 per annum ; in receipt of £400 to £500; in receipt of £500 to £700; in receipt of £700 to £1,000; and in receipt of £1,000 and over?

Mr ROBERTS:

– The following information is furnished : -

Officials in the Defence Department in receipt of £300 per annum and under £400 per annum, 73 £400per annum and under £500 per annum, 49; £500 per annum and under £700 per annum, 46; £700 per annum and under £1,000 per annum,19; £1,000 per annum and over £1,000 per annum, 5.

Mr KELLY:

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

With reference to the Minister’s statement in reply to Mr. Kelly on the 24th inst.’, that it was the Minister who, as the result of his inquiries in Sydney, drew up the memoranda setting forth the alleged advantages of the proposal to resume Redleaf and other properties in Double Bay and to reclaim a large area of the said Bay -

What were the said advantages as set forth by him?

What was the estimated cost of -

resuming Redleaf?

resuming Glenyanah?

resuming other properties in Double Bay?

reclaiming that portion of the Bay proposed to be reclaimed as. per plan accompanying the memoranda?

Who estimated the cost of reclamation?

Who ascertained the depths of water oa area to be reclaimed as shown in plan?

Do the depths of water shown on the plan purport to give the maximum depths of -water at high tide or the minimum depths at low tide?

Was the estimate of cost of reclamation based upon the depths of water shown upon the plan?

Is he aware that the depths of water shown on his plan are much less than those existing even at low water over- considerable portions of the area proposed to be reclaimed ?

Mr ROBERTS:

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

As shown in file of papers which was laid on Library table for information of members. 2, 3, and 6. No estimate was made.
Not known.
Not known.
No. The whole question was originated by the Minister as one for inquiry in view of the representations of the New South Wales Government, put forward to the Minister personally by Mr. Flowers of their desire that the Defence Department should vacate Victoria Barracks if a suitable site could be obtained elsewhere.

page 1380

QUESTION

ELECTORAL DIVISIONS: QUEENSLAND AND WESTERN AUSTRALIA

Mr GROOM:
DARLING DOWNS, QUEENSLAND

asked the Minister of Home Affairs, upon notice -

Whether he can inform this House if the report and the tentative recommendations made by Mr. W. H. Graham, one of the Commissioners appointed for the purpose of re-distributing the State of Queensland into electoral divisions, were placed before the other Queensland Commissioners for their consideration.

Mr KING O’MALLEY:
ALP

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

Mr. Graham submitted his views to the other Commissioners before the majority report was signed, but it is understood that the minority report submitted by him was not placed before the other Commissioners.

Sir JOHN FORREST:

asked the Minister of Home Affairs, upon notice -

Whether he has received any reports from the Chief Electoral Officer (Mr. Oldham) in regard to the distribution of the electorates in the States of Queensland and Western Australia - and, if so, will he place the reports on the table for the information of the House?

Mr KING O’MALLEY:

– The answer to the right honorable member’s question is as follows : -

The Chief Electoral Officer has not reported on the redistribution proposals of the Queensland and Western Australia Commissioners. The only reports required to be made to the Minister under the law are those of the Commissioners, which were duly laid before both Houses.

Mr GROOM:

asked the Minister of Home Affairs, upon notice -

Has he directed the Commissioners of Queensland to propose a fresh distribution of the State into Divisions?

Mr KING O’MALLEY:

– Yes.

page 1381

QUESTION

POSTMASTER-GENERAL’S DEPARTMENT

Employes in Mechanical Branch : Annual Leave. - Unskilled Men in Post-offices.

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

asked the Postmaster-General, upon notice -

Whether, in computing the period of service in connexion with the annual leave of employes in the mechanical branch, the period of previous temporary service is taken into account. And if it is not so considered now, will he give instructions that temporary service shall be included in making up the roster for annual leave of such employes?

Mr FISHER:
ALP

– In the absence of the Postmaster-General through indisposition, I have to answer the honorable member’s question as follows : -

The rule which has been laid down by the Public Service Commissioner is that an officer who has completed twelve months’ continuous service, of which portion may have been served as a temporary or exempt employé, may be granted recreation leave as if he had completed twelve months’ service as a permanent officer. If the honorable member will inform me of any case in which this rule is not observed instructions will be given to rectify the matter.

Mr HIGGS:

asked the PostmasterGeneral, upon notice -

Is it true that postmasters in the Common- wealth Service are compelled to work their offices with a substantial proportion of unskilled men?
Is it true that, prior to Federation, post masters had at their command all practical or skilled officials?
Will the Postmaster-General endeavour to provide all post and telegraph offices with a full staff?

Mr FISHER:

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

Not as a general rule, but in some cases it is not possible to avoid the employment of unskilled or temporary hands.
I am not aware ofthe actual conditions in that respect prior to Federation, but I very much doubt that they were as suggested in this question.
Yes.

page 1381

ROYAL COMMISSIONS BILL

Motion (by Mr. Hughes) proposed -

That the report be now adopted.

Mr GLYNN:

– I am sorry that justice does not always act with that ideal smoothness we should like, but it does not follow that we ought to make our laws unjust and harsh. I shall not remind the honorable member of what Shakspeare says that -

In- the corrupted currents of this world, but it would be an extraordinary thing, if because a poor man, from his position, is denied justice, and because blind and arrogant capital may sometimes place difficulties in his way, we should endeavour to i debar any section of citizens from obtaining justice. This is a very drastic clause, and I believe an unnecessary one, seeing that there is the ordinary law as a protection to members of Royal Commissions. We shall, however, have to make the best of the Bill as we have it. I should like to know whether, seeing that we have made this contempt a penal offence punishable with a fine of £100 or three months’ imprisonment, cumulative on repeated offences until the fines may run into many thousands of pounds, we have taken away the right of action from the person impugned. The Bill is not clear on this point; and some day or other, a member of a Royal Commission who has been virulently attacked and deprived of that which is the dearest to him in life, will wish to know whether he is to be satisfied with the penalties imposed under the Bill. I desire some information on the point, merely that the drafting may be made clear. The penalties are very severe, and in some cases it may be that they should be so. It is useless to impose a fine of £50 on a man who can command ^6,000 or ^7,000 as readily as another person can command £1 ; and I can understand that the penalties might, to a large extent, have some relation to the competence of a man to pay them. But under this Bill, no matter what the offence may Le, a pretty heavy penalty may be imposed. It may be said that it is only a maximum : but one thing we must avoid is disparity and inequality in treatment under similar circumstances. It is a great shame that one tribunal should have a lack of guidance from the Legislature - a lack of guidance to which the President of the Arbitration Court very properly called attention, when, in administering the Excise Tariff Act, he said that he had not received any guidance from the Legislature, although, I think, on the whole, he struck a very healthy rule out of his own inner consciousness. We ought, . as far as possible, to help our tribunals. It is no answer to the severity of the penalty to say that it is only a maximum one. In England they prescribe very carefully the rights of citizens in these matters. There a County Court has jurisdiction up to about £500, and has now, ‘ I think, some equit- able jurisdiction too; in South Australia a County or Local Court has jurisdiction up to .£495, and a very large general jurisdiction. In fact, County Courts in England, under the Bill of Lord Loreburn - I do not know whether is has been passed yet - bid fair to supersede the Supreme Courts in certain cases, certainly on circuit, and, to a large extent, even in London, affording speedier, more convenient, and cheaper justice, a tendency in which we have, to some extent, set a good example, because I think that we preceded England in this respect, and in which I hope, subsequently, we may afford a still better lead. Here is the position in England in regard to the penalties taken from, Phipson’s last work on the Law of Evidence -

Failure to attend, or refusal to give evidence or produce documents, in pursuance of a County Court summons, subjects the witness to such penalty, not exceeding £io -

Here it is ^500 - as the Judge may think proper. Obedience to a magistrate’s or justice’s summons is enforceable by warrant ; and if the witness refuses to be sworn, or to answer, he may be committed for not more than seven days.

Here he may get a year, and the punishment is cumulative. I regret if that is to be our type of jurisprudence in this democracy, which ought to be a prototype to British communities, because we lead in many things in energy, spirit, and outlook, and also, I believe, in Imperial patriotism. I hope that iri these matters the punitive justice which marks the morale of a nation above all other things, we are not to retrograde. Coming to the principles of Royal Commissions, I remember that an article on Royal Commissions, and particularly on the case of Ciough v. Leahy cited by the Attorney-General, was written in 1905 by Mr. Pitt Cobbett, who is, I think, one of the leading constitutional writers in Australia. In Ciough v. Leahy the High Court did not state what the prime facts were, because it only dealt with what was relevant. The case came before the High Court on an application for prohibition to prevent the enforcement of a penalty, of ,£20 on witnesses who refused to answer questions which they thought were protected by the provisions of the Act of 1901, which, they said, were ignored by the Commission. To show honorable members that statutory protection may at times be futile, I will explain the case. There was a dispute between two unions, the Machine

Shearers and Shed Employes Union and the Australian Workers Union, as to the registration under the State Arbitration Act of the Machine Shearers Union. Several attacks were made by the Australian Workers Union on the registration, but they all proved unsuccessful. Mr. McDonnell, the general secretary of the Australian Workers Union, was also a member of the Legislative Assembly, and, after he had failed in the Courts of Justice to displace a rival union, he moved for the appointment of a Select Committee, of which, I suppose, he was chairman, and whose other members were named by him. Let us see how far these ideas of Royal Commissions may lead us. We have a very drastic Act, and the only protection I can see outside its provisions, which are inadequate, is the class of men who are put on Royal Commissions, - the fact that we do not prostitute them for political purposes. The first thing in the case to which I refer was the appointment of a Select Committee, and as it was thought that the powers of scrutiny and inspection were not sufficient it was converted into a Royal Commission, of which Mr. McDonnell was made the President. Mr. Pitt Cobbett wrote -

The whole proceeding, however, was_ so clearly a violation of the principle that neither In a judicial, nor even in quasi-judicial proceeding, such as the present, ought a person to be made a judge in a cause in ‘ which he is interested, that in common decency this Commission was cancelled ; and on the 1st December, 1903, a new Commission was prepared.

I think that three or four commissioners were appointed before they could settle down to appoint what they considered would be a proper Commission. I will go back and see what a dispassionate lawyer had to say on its appointment -

In the second place, it possesses an interest of another kind, inasmuch as the facts before the Court reflect only too well certain phases f out political life, which are not altogether to our credit.

I shall not trouble honorable members by dealing with the points of law which he raised, but he did to some extent question the decision of the High Court.- At all events, he regretted that they did not afford a sufficiently clear guidance as to what would be an interference with a judicial inquiry. That case shows honorable members that even the highest tribunal in the land may appear to fall short of giving that measure of protection to a witness which we here desire and acknowledge is necessary to protect him against this too [So] stringent Act. Mr. Pitt Cobbett thought it was an interference with judicial inquiry, and he said -

But on the all important question of interference with the administration of justice, the judgment appears to us to be somewhat vague and inconclusive. It was said, for instance, to be impossible to draw any line beyond which such an inquiry might be unlawful ;’ whilst the Court refused even to contemplate the possibility of a Commission being issued having for its object an interference with justice. 1 will now give a summary of the whole business, because Mr. Cobbett’s words are perhaps clearer than mine would be -

Finally, on a review of the facts, it is somewhat difficult to resist the conclusion that there was in this case an attempt both on the part of those who procured the appointment of the Commission, and those who proposed to act under it, to interfere with the administration of justice., sufficient to bring it within the rule laid down by the High Court - that “ if any one purporting to act under such a Commission were to seek to interfere with the course of justice, such action would be preventible and punishable.” The facts which lead to this conclusion are these : One of two litigants, having failed, so far, in his proceedings in the Arbitration Court, but having not yet exhausted his remedies there, and it being still open to him to proceed in that Court, abandons them for the time being; and, having behind him the influence of a political party on which the Government in power was practically dependent for its continuance in office, procures the appointment of a Royal Commission. This Commission was appointed nominally “ to inquire,” but two of the questions submitted for inquiry were questions which had been - and might again come - before the Arbitration Court. Add to this the extraordinary powers of inspection and of visitation with which the Letters Patent purported to invest the Commission. Add to this the fact that those acting under the Commission actually took steps toward getting at evidence which would otherwise have been privileged from discovery; including confidential communications, which had passed between the other litigant and his legal advisers - evidence which it is submitted would not have been a proper subject of discovery even under the provisions of section 26, sub-section (m), of the Industrial Arbitration Act itself. Such evidence, however, if it had been obtained, might subsequently have been used as a new fact ot new ground of proceeding in the Arbitration Court.

I shall not weary honorable members by reading to the end of the passage, because I have trespassed longer on their attention than I intended, but I shall finally call their attention to the dictum of an English Judge upon Commissions of Inquiry. I wish that we only had time to look up Macaulay and a few other writers on the arbitrary proceedings of Commissions before we proceed to put on our statute-book legislation of this kind. Such legislation is becoming too frequent. I honestly and sincerely commend the motives that inspired those who introduced the Bill, but I think that they are mistaken in some of their methods. Professor Pitt Cobbett calls attention in the following note to the judgment of the Chief Justice in the Lower Court, where the decision was contrary to the opinion of the High Court-

The judgment of the Chief Justice presents in some respects a close analogy to the memorable judgment of Lord Camden in Entick v. Carrington (19 St. Tr. 1030). There the question was as to the’ legality of a general warrant issued by the Secretary of State for the seizure of the papers of the author of an alleged seditious libel. On the question of the legality of such warrant Lord Camden observed, “ This, though it is not the most difficult, is the most interesting question in the cause ; because if this point should be determined in favour of t’he jurisdiction, the secret cabinets and bureaus of every subject will be thrown open to the inspection of a messenger, whenever the Secretary of State shall think fit to charge or even to suspect a person to be the author, printer, dr publisher of a seditious libel.” In relation to the present case, and in view of the powers of inspection and visitation which the Letters Patent purported to bestow under the Act, one might perhaps predict a similar result “whenever the exigencies of party politics are such as to induce a Government in power to issue a Commission of Inquiry.”

That was said of an Act which is mild compared with this. We should hesitate about placing, this punitive legislation on the’ statute-book.

Mr CARR:
Macquarie

– I wish to register my ‘ opinions concerning the measure before the adoption of the report. I realize the strength ‘. of many of the statements of the Opposition, to the effect that the measure may be- turned against labour organizations and’ industrial movements, and that very great powers are being given . to men who may not have been- accustomed to the exercise of such . powers ; but, on the other hand, we are faced with the fact that there are’ growing up in.our midst huge concerns which are apparently beyond the reach of the law, and defy all existing methods for bringing them into line with public opinion. Apparently they cannot be attacked by any ordinary process. It is clearly necessary, therefore, that some special means of investigation be adopted, so that we may ascertain how we stand. These concerns cannot be allowed to live for. themselves alone. They live upon the community, but surely the rights of the community are greater than those of any corporation within it. I was interested to read this morning an article in the Age regarding the Melbourne Gas Company. Apparently there is no way of dealing with that concern except under special legislation. Either the functions of government must be extended beyond the bounds of which I would approve, or what is now proposed must be done. We may be taking drastic measures, but they are necessary to cope with the corporations which ignore the public weal. I am prepared to experiment in the manner proposed by the Attorney-General.

Mr GROOM:
Darling Downs

.- The. importance of the measure justifies a few remarks at this stage, with a view to influencing the Attorney-General to add to it yet further safeguards. At each stage the Opposition has pointed out the defects of the measure with a view to their amendment, and our criticism has brought about several changes. The Royal Commissions Act of 1902 provides that the summons to produce books, documents, or writings must be limited to those material to the subject-matter of the inquiry. The Bill as introduced removed that limitation: It was pointed out that, as the result,- the only limitation was by implication to be obtained from the scope of the Commission. We pointed out that there wasno adequate protection, and that under the Bill as introduced witnesses might be summoned to produce books, documents, and papers of every description, whether material to the inquiry or not. In deference to that criticism, the AttorneyGeneral inserted an amendment providing that-

It shall be a defence to a prosecution under this section for failing without reasonable excuse to Droduce any documents, books, or writings if the defendant proves that the documents, books, dr writing were not relevant to the inquiry.

That protects the witness to some extent, because it allows him to raise the defence, “ I did not produce the books asked for, because their contents were not relevant to the. inquiry.” . . The Attorney-General says that he has shifted the onus of proof, but he has certainly given some protection. Another objection taken was that witnesses had no protection regarding the questions that might be asked of them. To meet that criticism’ the Attorney-General has provided that -

A statement or disclosure made by any witness in answer to any question put. to him by a Royal Commission, or any of the Commissioners, shall not. (except in proceedings for an offence against this Act) be admissible in evidenc.e against him in any civil or criminal proceedings in any Commonwealth or State Court or any ‘Court of any Territory of the Commonwealth.

A third objection raised by the honorable member for Angas was the danger of the cumulative provisions, and the AttorneyGeneral very properly provided that -

Where any person, who has been convicted of any offence against section 5 or section 6 of this Act, is subsequently convicted on information by the Attorney-General of any offence against either of those sections - he shall be liable to the penalty provided. Now, it is only when an information has been laid by a responsible member of the Government that the penalties under this clause apply. We pointed out that the Bill, as introduced, gave unlimited power to copy extracts from books, and the AttorneyGeneral subsequently accepted an amendment moved by the honorable member for Moreton, providing that the copies must be of matters relevant to the inquiry. The AttorneyGeneral also made a promise to do something in regard to the expenses of witnesses. Any person served with a summons to attend who fails without reasonable excuse to do so is liable to a penalty of£500, and the Attorney-General promised that in framing regulations dealing with expenses he would provide for the payment of expenses. He said -

The suggestion is that the payment shall be made in advance; and, while there are circumstances in which that might properly be done, it. would, in my opinion, be fatal to the usefulness and effectiveness of the measure if it were compulsory in every case.

I assure the honorable member that section 8 of the Act will be given effect to; and that is as far as we ought to be asked to go.

I take it that he will’ provide by regulation that in every case where a witness is summoned from a long distance expenses will be tendered to him to enable him to comply with the demand of the Commission.

Mr Bamford:

– That is only fair.

Mr Hughes:

– It is not provided in any State Act-.

Mr GROOM:

– Will the AttorneyGeneral amend the Bill to provide for it here, if I can show him that it is provided in a State Act?

Mr Hughes:

– No. Provision is generally made in the regulations.

Mr GROOM:

– The honorable member for Angas pointed out that the measure might have a retrospective effect, and I am glad that the Attorney-General met that objection. I have suggested to the honorable member that, as Commissioners may take evidence regarding confidential matters, there should be protection as regards the publication of evidence, ‘such as ap pears in the Conciliation and Arbitration Act. I said, in dealing with the subject at an earlier stage -

We have in the Conciliation and Arbitration Act such a provision as I have suggested should be inserted in this Bill.

Mr HUGHES:
ALP

Mr Fenton:

– I understood last week that a witness was properly protected.

Mr GROOM:

– Some drafting amendments have been made in the Bill in the meantime. If any doubt exists, it is only right that these points should be raised, lest some unfortunate person should have to incur pains and penalties to clear them up. The Attorney-General said just now that there was no State Act under which it was required that a witness’ expenses should be tendered to him. I draw attention to the Queensland Justices Act, section 7A, which provides that -

If a person summoned as witness neglects or refuses to appear at the time and place appointed by the summons, and no just excuse is offered for such neglect or refusal, then after proof upon oath that the summons was duly served upon such person, and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance - and so forth. That is to say, under the Queensland Act. before a person canbe. prosecuted for failure to appear as a witness before a tribunal, proof has to be given that a reasonable sum was tendered to him for his costs and expenses of attendance. I think that honorable members will admit that that is only a fair thingWitnesses summoned before a Royal Commission, and required to come from a distance, should not be expected to pay their own expenses.

Mr HUGHES:
AttornegGeneral · West Sydney · ALP

– Honorable members opposite have, as it were, opened up the whole subject again. I do not propose to follow them, but one or two statements call for a reply. A point has been raised by the honorable member for Angas regarding the same intent being set forth in different words in various clauses.

The subject-matter of the inquiry,” “ material to the inquiry,” and matters “ relevant to the inquiry “ are phrases used to connote the same meaning. I do not think’ that the point is at all important. There can be no possible doubt as to what the words used in each case mean. However, I am< quite willing that the phrase “ relevant to the inquiry “ shall be used throughout. There cannot be the slightest objection to that, but it does not make any difference. “ Touching the subject-matter of the inquiry “ and “material to the inquiry” are exactly the same as “ relevant to the inquiry.” A number of statements made by the honorable member for Darling Downs in regard to the position of witnesses were so completely foreign to the attitude taken up by him when he introduced the Parliamentary Witnesses Bill - a measure for which I can never sufficiently thank him - that I utterly fail to understand them.

Mr Groom:

– It was not our Bill.

Mr HUGHES:

– It was provided in that Bill that any person who declined to answer questions, interrupted or disturbed a Committee, used insulting language towards a Committee, or did anything in contempt of a Committee, should be guilty of an offence, and that -

A person convicted of an offence against this Act shall, if no higher penalty is provided, be punishable as follows : -

If convicted on indictment, by imprison- ment not exceeding one year or by a penalty not exceeding Two hundred pounds :

If convicted by a court of summary jurisdiction, by imprisonment not exceeding six months or by a penalty not exceeding One hundred pounds. -

When the principal Act and the honorable gentleman’s Bill were before the House, there was not the slightest hint at any of these frightful difficulties with which a witness was going to find himself confronted. But what are the facts? Under the Act as it now stands, a witness finds himself in exactly the same position as a witness in a Court of law. He has to answer all questions put to him, or to put up with the consequences. The honorable member for Darling Downs objected when I read section 1 23 of the Crimes Act of Queensland, but he did not hesitate to read section 79 of the Justices Act of Queensland, relating to proceedings before a justice of the peace. A witness certainly needs all the protection he can get when before some justices of the peace, but the position of a witness before a Royal Commission of inquiry is altogether different.,

– In reply to the Attorney-General’s” statement that the Parliamentary Witnesses Bill was brought in by a previous Administration, surely I am entitled to show that he is in error ? If I may not correct such a mistake, then what is debate for?

Mr SPEAKER:

– Order! Will the honorable member proceed?

Mr JOSEPH COOK:

– No, in the circumstances, I shall not proceed.

Question resolved in the affirmative.

page 1391

QUESTION

ELECTORAL DIVISIONS : WESTERN AUSTRALIA

Debate resumed from 23rd July (videpage 1 132), on motion by Mr. King O’Malley -

That the House of Representatives approves of the distribution of the State of Western Australia into Electoral Divisions as proposed by-‘ Messrs. E. G. Stenberg, H. F. Johnston, and’ A. W. Piesse, the Commissioners for the purpose of distributing the said State into divisions, in their report laid before Parliament on the 19th day of June, 1912, and that the divisions referred to in the report and indicated on the map as A, B, C, D, and E, be named as follows : -

Sir JOHN FORREST:

Sir JOHN FORREST:

– But they’ are below the quota. Kalgoorlie is 3,640 above the quota; and the extraordinary thing isthat the honorable member for that constituency, who, I am sorry to hear, is absent to-day in consequence of indisposition,, does not complain. I could understand that honorable member complaining about having too many, electors; but I cannot understand, unless there are some other grounds, why others, who have less than the quota, desire more. I may mention that Kalgoorlie, although it has 3,640 above the quota, is still 2,438 below the maximum allowed by law. If Cue and Mount Magnet are added to the Dampier electorate, then that electorate will be 2,216 above the quota, instead of, as proposed by the Commissioners, 1,652 below the quota. There is not much difference in the figures; and I may say that in the case of the electorates of other States the margin is far greater than in the case of Western Australia. No one who knows the condition of affairs would regard the arrangement proposed by the honorable member for Coolgardie as either equitable or justifiable. I do not desire to detain the House; but I think I have shown that there is no reason at all why there should be the proposed addition to Dampier.

I should now like to refer to the question of naming these electorates. I do not know who suggested “ Dampier,” The Commissioners did not suggest it in their report. Generally speaking, we should avoid names which are used for the local Parliament, and in all the States, except Western Australia, that principle has been observed. In Western Australia, however, we have “Swan,” “Kalgoorlie,” “Perth,” and “ Fremantle,” all used for both Federal and State Parliaments; and it is often very difficult to know whether reference is being made to a State or a Federal member. The name “ Dampier- “ will, of course, avoid any such inconveni- ence, and something might be said in its favour. Dampier was the first English.man to see Australia, in the ship Roebuck, and he named many of the chief physical features of the north-west coast, including Roebuck Bay, on which Broome is situated. After all, however, Dampier only saw the very tropical part of Australia, north of the tropic Capricorn, and a very small portion of that ; and, on the whole, I do not think this a very appropriate name. Why the division should be called “ Dampier,” instead of “ Swan,” I am at a loss to understand. The name of this district ought not to have been changed, but there should have been a change in the case of the southern district. The northern division contains the Swan River and the local electorate of Swan, and, as I have said, the portion 16 be absorbed by the proposed Dampier division contains 18,933 electors of the present Swan division out of the total of 29,239 in the whole new division. There are other reasons why the name “ Swan “ should be retained. The district contains many historic places, including York, Northam, Beverley, Toodyay, Gingin, Dongara, and Geraldton - all prominent names in the early days. There are also the Swan River, the Avon, the Canning, the Moore, the Irwin, the Greenough, the Chapman, and the Murchison, all connected with the early Swan River settlement. The southern half of my present electorate comprises the south-west corner of the continent, and it is associated, with Pinjarra, Bunbury, Busselton, the great southern towns of Pingelly, Narrogin, Wagin, Katanning, Williams, Kojonup, and Albany. Why should we not have a marne associated with these places? I have several names I shall suggest to honorable :members as suitable. First there is “ Leschenault,” after the early naturalist. This district was called the “ Leschenault “ district for many years; and to this day the name appears in deeds. Then there is “Stirling,” after the first Governor, and a name that has been given to one of the finest ranges of hills in- the country; “Gregory,” after the two early distinguished explorers; and “Australind,” and “ Leeuwin.” Any of these names -would be appropriate to the south-west -corner of Australia. We may be asked what is in a name, but when we are about the business we might as well have an appropriate one.

Mr Mahon:

– Why not a native name?

Sir JOHN FORREST:

Sir JOHN FORREST:

– If I have made a statement which you do not approve of, sir, I will withdraw it and express my regret.

On the next page he said to honorable members -

Keep the Parliament free from this question as much as you can, and you will get better results from impartial officers.

On the 18th August, 1903, the present Attorney-General said -

The Commissioners are placed in a position outside the arena of politics, and their duty is to distribute the electorates under such conditions as will enable politicians to fairly appeal to the country. It would be a lamentable thing if politicians were allowed to divide the State into electorates to suit themselves.

I would ask the honorable member, if he were here, whether he will say this to his supporters, and especially to the honorable member for Coolgardie. Then we have the honorable member for Gwydir. I wish he was here, because he rather poses as be<ng always right. I shall read what he said on the 23 rd November, 1909, in regard to the arrangement of electorates by Commissioners. Speaking in the fulness f his indignation - honorable members know how he does it-

Mr SPEAKER:

– Order ! The honorarable member’s time has expired.

Mr WISE:
Gippsland

.- It is rather to be regretted that the honorable member for Swan should have thrown so much party feeling into this discussion, particularly when we remember what took place three years ago when the last redistribution scheme was before us. On that occasion the then Prime Minister put the position, to my mind, very clearly, as far as members of Parliament are concerned. He said -

I rose to point out the fact that from the very first the Parliament has claimed a free hand in dealing with redistributions. Tt has left each decision to the individual conscience and judgment of honorable members. It has left each member to shoulder his own responsibility.

On that occasion they decided to follow that course. The right honorable member for Swan, I think, took up the right position on that occasion. He said -

I feel justified in saying that the arrangement of the electorates by the Commissioner, a man I respect, and have a regard for, does, not commend itself to my judgment. I do not consider it is a good arrangement, and for that reason, if it goes to a division, I shall vote against it.

That seems to be a matter of common sense. I have no personal or party interest to serve. My objection to the scheme is based on the reason which the Commissioners have given in their report. They say -

The Commissioners are of opinion that their first and foremost duty is to submit such recommendations as will secure in each of the proposed Divisions the nearest approach to >k,.e quota of enrolment at the time of the impending general elections in 1912. The Commissioners also consider themselves justified in assuming that the provision contained in “ The Commonwealth Electoral Act “ for the creation of Divisions of equal electoral strength - or as near thereto as circumstances will admit - indicates an underlying principle and a desire on the part of the Legislature of giving to all votes, so far as possible, an equal value.

Yet they set to work to divide the electorates according to what in their opinion will be their state in the impending general election in 19 12. So far as 1 know there is- not a general election impending in 1912 ; that is the first blunder that they made. If the Victorian Commissioners had been allowed to act on guess-work, this State would not have lost a member, her population at the present time entitling her to the full number given under the last distribution. The Victorian Commissioners, however, felt themselves bound to work with the figures obtained by the last collection of the census. Apparently, the Western Australian Commissioners did not consider themselves bound in the same way.

Sir John Forrest:

-They kept within’ their maximum.

Mr WISE:

– Yes; but that is a secondary consideration. They give four divisions less than the quota, and the fifth considerably more than the quota. The distribution of population now proposed is 29,320, 29,563, 29,800, 29,239, and 34,031 ; but if the allotment which has been suggested is made, the last two divisions would have 30,763, and 32,507 - a more equal arrangement. Section 16 of the Commonwealth Electoral Act provides that-

In making any distribution of States into Divisions the Commissioner shall give due consideration to -

Community or diversity of interest;
Means of communication;
Physical features;
Existing boundaries of Divisions; and subject thereto the quota of electors shall be the basis for the distribution, and the Commissioner may adopt a margin of allowance, to be used whenever necessary.

Had these Commissioners based their scheme of distribution on the numbers in the divisions at the time they made it, there would have been no need to use the large margin which they have used. They have distributed the population, not on the basis of its actual location, but in accordance with what they imagined would be its location in 1912, when they assumed there would be an election.

Mr Mahon:

– And they speak of being guided by the new quota.

Mr WISE:
GIPPSLAND, VICTORIA · PROT; ALP from 1910; IND from 1914; NAT from 1917

– Yes; they say-

Although it would appear on the figures avail- ‘ able, and on the basis of the estimates made, that the enrolment in the proposed Division ‘ “ D “ will at the time of the election be about ‘ 2,100 in excess of the then existing quota, the Commissioners are satisfied that, unless, some entirely unforeseen circumstances arise, Division “D” as proposed will show no excess of the new quota.

They have gone by guessing, which appears to be unjustifiable. I am not surprised that the honorable member for Coolgardie has read the opinion of an eminent Melbourne counsel to the effect that they acted illegally in departing from the prescribed quota on the hypothesis that there would be a change in the distribution of population at the time the next election came. That seems to me so wrong a basisfor the Commissioners’ scheme that I can- . not give my sanction to it, and for that reason, and for that reason alone, I shall vote against the adoption of the report. .

Dr MALONEY:
MELBOURNE, VICTORIA · ALP; FLP from 1931; ALP from 1936

.- I wish to protest against this proposed dis-; tribution. The difference between the populations of the proposed divisions is even greater than in Victoria, where the population is denser. I have already protested against the wiping out of two Victorian electorates. The difference between the largest and the smallest divisions in Western Australia is 4,792, whereas the difference between the largest and smallest Victorian divisions, outside the metropolis, is only 3,629, and inside the metropolis only 4,629. Thus the difference is greatest where population is sparse and distances almost limitless. This” distribution by men who have ventured to be prophets is an infamy on the escutcheon of Australia,- and I shall, therefore, vote; against the adoption of the report.

Mr FOWLER:
Perth

.- Whenever the reports of Commissioners on distributions of electoral divisions have been before the House, there has been more or less dissatisfaction, but when it was announced that instead of one, we were to have . three Commissioners, I, in common with many other honorable members, thought that the referring back of reports would cease. Those who know the Western Australian Commissioners are aware that they are the best men who could have been found in the State for the work they were selected to do, and those who read their report carefully will see in it evidence of the most painstaking effort to perform their task thoroughly and impar-. tially. In the discussion of this matter there is no need for heat, even on the part of Western Australian ‘ representatives. The proposed distribution reduces my elec- . torate slightly, but it does not affect appreciably the strength of parties, and I do not think that it will matter much to any one if the distribution is agreed to. I cannot understand how the Commissioners, could have made any other recommendations. It would be a great public scandal were the report to be put aside, and the old arrangement allowed to stand. The; honorable member for Gippsland made himself acquainted with one or two phases of the proposal, but those who have carefully read the report know that his speech amounted to an attempt to throw dust into the eyes of honorable members, and that by emphasizing a few points, and ignoring - others, he made what was in many respects a misstatement of the case. In accusing the Commissioners of basing their scheme- on conjecture he did them a serious wrong. They have proceeded absolutely in accordance with the law, and in no case have they ignored official facts and figures.

Mr Wise:

– They have estimated what the population of the States will be at a future date.

Mr FOWLER:

– The honorable member gave the House to understand that the Commissioners assigned to one division a number largely in excess of the quota, while the others have assigned to them numbers much below. It is a fact that the “ D “ electorate has assigned to it a number 3,640 in excess of the quota, though that is little more than half the margin allowed by law. The Commissioners state their reasons for this allotment. They point out that the population of this electorate has been steadily decreasing, and that by the time the next election is held, the excess allotted to it will probably have disappeared. At the same time the population of the other divisions is increasing, the tendency being for the numbers allotted to them to increase to the quota. In all these cases the Commissioners have not gone beyond the limits allowed them by the law. They” are instructed to get as near to the quota as possible. They have done so. They have given their reasons for making the redistribution in the way that has been indicated. A great deal has been made of a statement appearing on page 13 of the Commissioners’ report as to “ the impending general elections in 191 2.” It is quite obvious to any one that this phrase is either a printer’s error or a slip of the pen. If the honorable member for Gippsland had looked at the top of page 13 instead of confining his attention to the bottom, he would have seen that the Commissioners point out there that -

It is considered probable that the .figures which will be available showing the actual enrolment for the forthcoming elections next year will prove - and so forth. As this report was written in 1912, “ next year “ must mean 1913, and this passage shows that the statement lower down was a slip. It is regrettable that the honorable member for Gippsland, with that Pecksniffian air with which we in this House are now so familiar, should have gone to the foot of a page to detect what he regards as an error when there is at the top of the same page a line which, if he had observed it, would have put him quite right straightaway. .

Mr Fowler:

– Does it not show the basis on which the Commissioners acted ?

Mr CHANTER:

– I shall read the remarks made by the Commissioners in another paragraph, and allow honorable members to draw their own conclusions. They state, in the latter part of paragraph 3i-

It is, of course, impossible for the Commissioners to give an estimate of the proportion of the increase that will be attracted to each of the four divisions “A,” “ B,” “ C,” and “E.”

Mr Mahon:

– Yet they act upon an estimate of the proportion of increase.

Mr CHANTER:

– Yet they act upon it. In paragraph 33, we have the statement -

The Commissioners are of opinion that their first and foremost duty is to submit such recommendations as will secure in each of the proposed divisions the nearest approach to the quota of enrolment at the time of the impending general elections in 1912.

I submit that their imperative duty was to redistribute the States into Federal divisions on the basis of the existing, and not an anticipated, enrolment. I cannot too severely condemn the adoption of the principle which they have observed. I do not know these gentlemen. They may be well qualified to carry out this work, but I condemn the principle they have introduced, under which they anticipate from facts within their own knowledge that a place at present sparsely populated will be largely populated twelve months or two years hence. How is it possible for any one to say, more especially in regard to a community like that of Western Australia, what the floating population will be three months, let alone twelve months or two years, hence? Experience tells us that if gold is found in any district a rush immediately sets in, and that if the find proves to be a good one, a large and permanent population is established there. I have no desire to repeat the arguments that have already been used, but I feel that an injustice has been done in this case, just as an injustice was done in connexion with a redistribution of my own electorate, which did not have regard to community of interest. My complaint is that the Commissioners have based their decision in this case, not upon the actual enrolment, but upon what they anticipate will be the enrolment twelve months or two years hence.

Mr Archibald:

– The scheme is based, not on facts, but upon imagination.

Mr CHANTER:

– On anticipation.

Sir John Forrest:

– The honorable member admits that they have kept within the margin ?

Mr CHANTER:

– Yes ; but not within the law; and in that view I am fortified by the opinion of a leading barrister in this State.

Mr Mahon:

– The question of the margin of allowance is entirely subsidiary to other considerations.

Mr CHANTER:

– There is a number of considerations, such as community of interest, and means of communication, to which, under the law, regard must be paid. The honorable member for Coolgardie has already referred to the double journey that would have to be undertaken in certain cases by electors in the division of Dampier, and he and other honorable members from that State can deal, also, with the question of community of interest. My contention is that the Commissioners have departed from the directions given them under the Act by basing their scheme of distribution upon an anticipated enrolment, instead of the actual enrolment at the time that the scheme was drawn up. I therefore move -

That all the words after “That” be left out, with a view to insert in lieu thereof the words, “ in accordance with section 22 of the Electoral Act the redistribution be referred back to the Commissioners with an intimation that due consideration does not appear to have been given to the diversity of interest and the ab sence of means of communication between the districts of Mount Magnet and Cue and the other portions of the proposed division ‘ D.’ That the Commissioners be requested to make the distribution on the basis of existing enrolment and not by way of anticipation, so as to give each division as nearly as practicable an equal number of electors.”

In accordance with section 22 of the Electoral Act the redistribution be _ referred back to the Commissioners with an intimation that due consideration does not appear to have been given to the diversity of interest and the absence of means of communication between the districts of Mount Magnet and Cue, and the other portions of the proposed division “D.” That the Commissioners be requested to make the distribution on the basis of the existing en rolment (and not by way of anticipation) so as to give each division as nearly as practicable an equal, number of electors.

Mr Chanter:

– The honorable member can see it on the map.

Sitting suspended from 6.30 to 7.45 p.m.

Mr GROOM:

– As I have said, the spirit of the Electoral Act is that we shall appoint Commissioners, with the desire to, as far as possible, leave the question of the electoral divisions to an absolutely impartial body. Our idea was to improve on the old State principle of the Government forming a series of electoral boundaries and submitting these to the House for approval, by creating a body to deal with the matter judicially. Experience has led us to the conclusion that it is better to have three Commissioners rather than one, and that these three Commissioners should consist of the Surveyor-General, who by virtue of his office and position necessarily knows a great deal of the country, and two other men of equal official position, such as, in some in stances, District Court Judges or State electoral officers. The duty of the Commissionersis to make a distribution of a State, to receive objections and give due weight to. them, and then lay their scheme before the House through the Minister. Of course,, the object is not merely to lay the report on the table, and do nothing more with it ; the Act seems to indicate that it is the duty of the Minister to submit the report; and here I may say that I am sorry the honorable gentleman did not give us any information, but simply laid. the document on the table and left the House to worry through it.

Mr KING O’MALLEY:
Minister for Home Affairs · DARWIN, TASMANIA · ALP

– It is for the Commissioners to supply the information.

Mr GROOM:

Mr Mahon:

– Is it not desirable that the Commissioners should know our mind?

Mr DEAKIN:

– Should they desire to do so, a perusal of the debate will make them acquainted with the views of each honorable member who speaks, and of the feeling of the House collectively. At all events, until the Act has been amended, I do not think that more is necessary or desirable.

Again, section 22 prescribes that when either House passes a resolution disapproving of any proposed distribution, or negatives a motion for the approval of any proposed distribution, the Minister may direct the Commissioners to propose a fresh distribution. We are not asked to disapprove of the proposed distribution, nor are we asked to negative a motion for its approval, though incidentally, as a consequence of passing this amendment, for whose terms there is no excuse or justification, we might be taken by indirect implication to have followed one of these courses. This irregularity may, or may not, be serious at this juncture, but must be taken into account in any future amendment of the Act.

Mr BAMFORD:
Herbert

.- I do not know that I shall transgress the rules of debate if I reply to some remarks made this afternoon by the honorable member for Swan’ by repeating what I have already said in this chamber, that I did not canvass anybody for a vote in support of the motion which I moved in reference to the Queensland distribution.- I give that assurance in absolute good conscience. I told the Prime Minister that I would fight the proposal on the floor of the House, and only there, and so impressed were honorable members with the case that I made out that they voted with me.

Mr Joseph Cook:

– They were impressed with the idea that they ought to give the honorable member a vote.

Mr BAMFORD:

– I thank the honorable member for the interjection, and am sorry that he did not give me his vote. I have suggested previously, and say again, that the best method of distributing the electoral divisions of a State would be for the representatives of that State to meet and settle the matter in conclave. No particular party would obtain any advantage by that method. Each member concerned would take care that the interests of the division which he represented were conserved, and whatever was done would result in no detriment to future candidates. The party opposite is now following the example of the Labour party in taking a plebiscite in regard to candidates. That is going on in Victoria to-day.

Mr SPEAKER:

– The honorable member must confine himself to the question.

Mr BAMFORD:

– I bow to your ruling, sir, being one of the most submissive men in the House in that regard. The honorable member for Swan left it to be inferred that the honorable member for Coolgardie and myself have not studied the best, interests of the country. I say that we have, and for this reason : When a member who represents a majority of the electors who voted in his division speaks in this House in defence of their interests, he is consulting the interests of the country. There are on the other side a few members who were returned by minorities

Mr SPEAKER:

– The honorable member is not confining himself to the question.

Mr BAMFORD:

Mr SPEAKER:

– I must wait until I hear what the right honorable member wishes, to. say.

Sir JOHN FORREST:

– I wish to quote from a speech by the honorable member for Gwydir on the 23rd November, 1909. He said -

Has it come to this - that in the National Parliament a question of this kind is to be determined by the political necessities of an individual member? If this sort of thing is permitted there is nothing in American politics which we shall not be capable of by-and-by if the present Government remain in power.

The honorable member was referring to a previous Government. That Government is not in power at the present time. But the honorable member for Gwydir is still a member of this . House, and I am very anxious to see how he will act on the present occasion. I am anxious to see whether he will vote in such a way as to assist “ the political necessities of an individual member.” I also wish to quote in regard to this matter the views of the Prime Minister. He said, in 1909 -

I do say that the Government should havea policy in the matter.

Again, the right honorable “gentleman said -

No charge whatever has been made against the capacity or integrity of the Commissioner to whom was intrusted one of the most responsible duties, if not the most responsible, with which a citizen of the Commonwealth could be charged, that of distributing the electors into such groups that they will as nearly as possible be represented in this House on the same basis.

Surely those remarks are applicable to this present case. The Prime Minister went on to say -

I wish to say in the plainest possible language that the members of a Government who lend themselves to that kind of thing are unfit to occupy the positions they hold, because an attempt to manipulate electorates and to take the work of electoral distribution . out of the hands of the responsible officers appointed for the purpose is about the nearest approach to political corruption.

I want to know whether the right honorable gentleman will say that in this House to-day to those who are not voting with him on the present occasion, but who generally support him. I think the time has arrived when he should say so, if he believes in the sentiments which he so eloquently expressed on that occasion.

Mr Tudor:

– The Prime Minister’s words did not alter the right honorable member’s vote on that occasion.

Sir JOHN FORREST:

– What has that to do with it ? The Minister of Trade and Customs is fond of interjecting things which have nothing to do with the case. The Prime Minister said also -

I tell the country that no question has been more canvassed quietly in this House than the possibility of blocking this proposal. I regret it. I do not think such proceedings are correct.

.- The objection has been raised by honorable members of the Opposition that the amendment, if carried, will not express disapproval of the scheme as laid before the House. To overcome that difficulty, I propose to move -

That the amendment be amended by inserting after the word “ be,” line 4, the words “ disapproved of and “ be inserted.

NOES: 22

Majority … … 1

AYES

NOES

Question so resolved in the affirmative.

Amendment negatived.

Original question put. The House divided.

AYES: 23

NOES: 22

Majority … … 1

AYES

NOES

Question so resolved in the affirmative.

page 1416

NAVIGATION BILL

Second Reading

Debate resumed from 19th July (vide page 1070), on motion by Mr. Tudor -

That this Bill be now read a second time.

Mr GLYNN:
Angas

.- Commendation is certainly due to the Minister for the exhaustive speech with which he introduced the measure, and to the honorable member for Kooyong for keen and elucidatory criticism that should, I think, be, on the whole, rather helpful to the Minister. What I have to say will, as’ far as possible, keep clear of the ground coveredby the two preceding speakers. But the fact that we are the representatives of an island continent, some 14,000 miles distant from the island centre of an ocean Empire, dependent, in peace and war, for commerce and prosperity, on the sea, should stimulate our interest in the class with which this measure chiefly deals. It is comforting to remember that the legislation, of the last twenty-five or thirty years, instead of being directed, as most of the legislation of the middle part of the last century was, towards strengthening the capitalistic interest, is now chiefly directedtowards the comfort and general conditions of the men who man those vessels. If the great ocean Empire of which we are a part is to retain and maintain what is still its supremacy, not only in commerce but in defensive power, in reserve of defensive strength, it must be by making moreattractive for the men who should man our navies, the conditions of the mercantile marine. It is somewhat reassuring to findfrom one of the shipping returns in the Economist that, taking British battleshipsand battle cruisers only for comparison with any possible combination against the Empire - I say possible combination, for we hope there never will be any occasionfor the gauntlet being thrown down by either side in these industrial times - and taking what is considered by the experts as the test of effective strength, namely. battle-ship tonnage, the British vessels total 938,655 tons, against the combined tonnage of the Triple Alliance of 664,761 tons. I find also - which is a matter that we should bear in mind in dealing with navigation - that in studying matters that required amendment in the British laws for the purpose of increasing the manning of the British Navy, the Board of Trade Committee, of 1903, said -

We think that an increase in the number of British seamen in the mercantile marine may be looked for rather in the improvement in their conditions than in the increase of facilities for training boys at sea.

The “improvement of conditions “ has been marked in the Act of 1906 in England, and, I believe, in the operation of it, with very great success.

Mr Tudor:

– I referred to that.

Mr GLYNN:

– The Minister did; and I am pleased to notice that this view is supported by some statistics published about eighteen months ago by an authority on commercial and naval matters in the Old Country. The fact is, and we must all be conscious of it, that there is a movement abroad, more likely, to my mind, to be successful than any sudden and angry revolution in industrial and social affairs, towards a recognition . of the necessity for a full realization of the proper proportion between effective effort and reward ; and if that happens to place on a higher plane of comfort and competence the men who for many generations have made us, in our romantic imaginings, masters of the deep, the world will, in the long run, be all the better for the change. Coming to the Bill, I think the chief end aimed at includes a fair standard of wages and conditions for officers and men, and I acknowledge that this may necessitate, to some extent, the protection, if I may call it so, of our coastal trade. We cannot allow the happier conditions of the last two or three years to be interfered with from outside, if protection against that interference is really necessary. To take only two figures by way of comparison, I find that the wages of Australian able seamen are now ; £8 per month, as against£4 5s. for seamen on ocean-going vessels; while Australian firemen receive £10 per month, as against £4 10s. and £5 paid to oceangoing firemen. The only question with me is: What is the volume and character of the competing vessels, and to what extent is the protection that we are introducing necessary to maintain the local conditions? I merely state the position, because, owing to the limitation of time, I do not propose to elaborate on it. So far, then, as regards the men who are to be our chief consideration. At the same time, we ought not to unduly hamper Australian vessels. If we do so, we may, to a large extent, diminish the wages fund out of which the seamen’s wages are paid, and also diminish the possibility of meeting the fair demands the limits of which at present have not been reached. We must progress as we go on. The Bill, to a certain extent, is challenged by some on the ground that there is an unnecessary hampering - I merely state this criticism, which has been levelled against the measure - of some of the shipowners by the provisions in relation, for instance, to greater accommodation, on which the honorable member for Kooyong dwelt, more frequent surveys, lower loadlines and winter load-lines all the year round for both local and external commerce, manning ana other matters I need hot mention. Four points mentioned by the honorable member for Kooyong had reference, I think, to manning, load-lines, survey, and wireless telegraphy ; and these alone will involve, if carried into effect, an additional annual outlay for the ships covered by the Commonwealth Steam-ship Owners Association of £111,000.

Mr Fenton:

– Is not wireless telegraphy a kind . of insurance for the shipping companies ?

Mr GLYNN:

– To some extent it is; I am merely dealing with the conditions laid down in the Bill, which are much harder than the conditions under, for instance the United States Act. Subject to these prime conditions, which have one end in view, we ought to aim at Imperial uniformity in both law and operation. That was the object sought to be attained by the Navigation Conference of 1907 ; and I should like, if I may, to read the following from the despatch of the Honorable Alfred Lyttelton, dated 8th March, 1905, suggesting that Conference to consider -

The legal and constitutional questions concerning the scope of the powers enjoyed by Colonial Legislatures under the Merchant Shipping Act 1894 ; and, secondly, the practical inconvenience arising from divergent legislation of the Parliaments of the United Kingdom and the Colonies.

Those were two objects from the Imperial point of view. Three years afterwards. Earl Crewe in his despatch to the GovernorGeneral, Lord Dudley, dated 3rd September, 1908, said -

I trust that your Ministers will concur with me in thinking that legislation respecting vessels engaged in the intercolonial trade, which are not registered in the Commonwealth or in

New Zealand, and which do not engage in the coasting trade of either colony, should be determined upon by mutual agreement between the Commonwealth, New Zealand, and His Majesty’s Government, and should be passed by the Imperial Parliament.

That was mutual agreement on what ought to be - assuming that we have fairly comprehensive powers for local purposes, as the Imperial Parliament has for Imperial purposes - the lines that both local and Imperial legislation ought to follow. The suggestion was that those lines should be embodied in an agreement to be passed by the Imperial Parliament, and capable of adoption or rejection by us. What does this mean to the Imperial Government ? I have looked up a few figures concerning our trade, and I shall put them before honorable members, again mentioning that Earl Crewe said in his September despatch of 1908 -

But it will be apparent to your Ministers that His Majesty’s Government’s power qf negotiating will be- destroyed unless the self-governing Dominions and the United Kingdom have the same standard for oversea shipping.

And he points out - I shall not quote the document at length -

Foreign countries might retaliate by requiring different standards of equipment for vessels registered in the Dominion.

– I do not think that the Titanic disaster will affect what is done. A great deal of the newspaper criticism of the Board of Trade did not amount to much. The Board of Trade regulations were framed a few years ago, when %’essels did not exceed a maximum tonnage of 10,000 tons, but since then there has been a . very rapid increase of tonnage. There still exists great difference of opinion as to whether human life will not be better preserved by improving the methods of preventing vessels from sinking than by insisting on the provision of more boats. Our legislation may be repugnant to other provisions of the Act. Section 377 provides that a certificate cancelled in the Commonwealth and re-issued by the Board of Trade is not to have effect in the Commonwealth. That may be ultra vires. During the last few years the representations of the Board of Trade in regard to our proposals have been met to some extent. The New Zealand Bill of 1909, which I think did not receive the Royal assent before 191 1, paid more heed than does this legislation to the principles which should operate in accordance with the Imperial suggestions, and the declaration ‘ of the Imperial Conference of 1907 that our local laws should provide for vessels registered in the Commonwealth when trading therein, and for vessels wherever registered when trading on the coast, but not to foreign vessels not trading in the Commonwealth. The forty or forty-five original points of difference between the Commonwealth and the Board of Trade have, it has been stated by the Minister or by the honorable member for Kooyong, been reduced to eight or nine. There is still, however, divergence between our proposed legislation and the Board of Trade view. I have mentioned the different powers that operate. The Australian power is divided between the Commonwealth and the States. The Imperial law authorities have taken a view that is not on all points correct. Lord Crewe has stated that view in these words-

Law officers and other distinguished lawyers advise that the Parliament has only powers of legislation so to override the provisions of the Merchant Shipping Act of 1894 as are given by sections 735 and 736 of that Act, and that the effect of section 51 and section 98 of the Constitution of the Commonwealth is merely to confer upon the Commonwealth power of legislation in navigation matters paramount to that of the State Parliaments, but that these sections do not in any way extend the legislative power of the Commonwealth beyond the powers previously exercised by the State Legislatures.

That is incorrect. The Commonwealth has not power to override the legislation of the State Parliaments in navigation matters within their own sphere, because this is not a concurrent power. The sections of the Constitution which are relevant to this discussion are 51 (1), 98, 39, covering clause 5, and section 76 (3). Section 51 deals with trade and commerce with other countries, and among the States. Under section 98 the power of the Federal Parliament to make laws with respect to trade and commerce extends to navigation and shipping. Section 39 deals with matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any Department or officer of the Commonwealth. Covering clause 5 says that the laws of the Commonwealth shall be in force on all British ships whose first port of clearance and port of destination are in the Commonwealth. Section 76 deals with the judicial department of the Constitution. The Parliament may make laws conferring jurisdiction on the High. Court on any matter of admiralty and maritime jurisdiction. As to the trade and commerce power in the Kalibia v. Wilson case, it has been decided that the Commonwealth power does not extend to the purely internal coasting trade. Some of the local text writers thought that it did ; but I had not much doubt about it. I was afraid that our Seamen’s Compensation Act would not be valid, and, when dealing with the Judiciary Bill a year ago, threw out a hint that probably many of the provisions of the Navigation Bill would be found invalid for a similar reason, lt is a difficult matter to determine, and lawyers may honestly differ about it. What the Court said was that section 98 does not enlarge the ambit of the commerce power, or do anything more than explain the meaning of the words “trade and commerce” as applied to powers within that ambit; in other words, that “trade and commerce” includes navigation and shipping. In Canada navigation and shipping is a general power. So the Seamen’s Compensation Act 1909 was declared invalid, because it dealt with both Intra-State and Inter-State trade. In the opinion of the majority of the High Court the provisions of the Act were not severable. I was Attorney-General at the time the measure was passed. It was quite right as originally drafted, and as it passed from my hands; but it was re-drafted afterwards, on a request to widen its scope, and it was thought that an opportunity for severance would be given by the Court. But there was a good deal of reasoning in the decision of the majority of the High Court that the provisions were not severable, and. of course, one must do his best ‘ in such matters. In the United States, Acts dealt with traffic on railways, and included provisions as to employers’ liability and arbitration. The employers’ liability provisions of the Act of 1906 were held to be invalid for the same reason as our Seamen’s Compensation Act was held to be invalid, because it dealt with purely domestic or Intra-State trade, whilst the commerce power is Inter-State. Accordingly, the provisions were knocked out, and the Act was held to be not severable. In the following year, in the case of Adair v. United States, U.S.R. 208, at page 178, the Court said that if the provisions had been expressed in a detachable section, so that the Court might have severed diem, it would have been valid. That referred to employers’ liability, which, of course, is cognate to our Seamen’s Compensation Act, which, as honorable members are aware, dealt with employers’ liability. So that, according to the United States decision, with which our High Court agreed, if you do under our Inter-State power pass an Act dealing purely with Inter-State trade, that Act is valid. The United States law, however, is different in respects from ours. Their power is wider than ours. Under their power to deal with external commerce, they have passed extra-territorial laws that, t believe, would be beyond our powers. In the United States, it must be remembered, there is no superior Parliament outside Congress. Therefore, from necessity, they were forced to deal with external commerce in a manner covering something more than our commerce power covered. But in the case of Lord v. Goodall - Nelson and Perkins, 102 U.S.R., p. 541 - the Court, in effect, stated that the external commerce power extended to vessels engaged in the transportation of goods and passengers between ports or places in the same State, but part of whose course between ports was on the high seas. To quote from the case the Court said -

Tn every just sense she was, while on the ocean, engaged in commerce with foreign nations, and, as such,’ she and the business she was engaged in were subject to the regulating power of Congress.

In addition, in the United States they have an Admiralty jurisdiction which we have not. There the Admiralty jurisdiction is both judicial and legislative. It extends to all transactions of a maritime nature on navigable waters of the United States, as well as those on the high seas. It does not extend to inland lakes wholly within the limits of a State and wholly unconnected with the navigable waters of the United States. In other words, it extends to any waters that, by themselves or by connexion with other waters, form a channel of commerce between States, or with foreign countries ; but it does not extend to any waters purely within particular States, and which cannot become water-ways between States or foreign countries. A writer on this subject, Willoughby, mentions that -

The Federal Admiralty jurisdiction being wholly independent of the power to regulate Inter-State commerce, and attaching whenever the cause of action has arisen in navigable waters, jurisdiction extends ‘over all cases arising in navigable waters, even though they be wholly within the confines of a particular State, provided that they be links in a chain of commercial communication between States.

In Australia, the Admiralty power ‘is not legislative. It is purely judicial. It is not, at present, exercised by the Commonwealth at all. Our High Court has no Admiralty jurisdiction. The Colonial Courts of Admiralty Act t.890 invested British Possessions with .power to declare any of their Courts Courts of Admiralty. That power was exercised by all the States of Australia except New South Wales and Victoria ; but I think New South Wales and Victoria came into line by Order in Council in May, 1911. So that now all the States have established Vice-Admiralty Courts, all of which are. I think, connected with the Supreme Courts of the States. But we as a Commonwealth - I believe I am correct in this - have not exercised our jurisdiction under section 76, sub-section 3, of the Constitution by vesting in any of our Federal Courts Admiralty jurisdiction. We can do so, and we can make the power exclusive. But we have done neither. Even if we did choose to invest a Federal Court with Admiralty jurisdiction, our power would only be judicial. What it might extend to in case we exercised the power would be subjects of this class - claims for damages done or sustained by a ship ; questions of title in cases of possession, salvage, &c. ; claims for salvage and towage ; claims for necessaries to foreign ships ; relations between officers and crews ; wages under contract wholly or in part performed at sea ; repairs and possibly insurance. What the law is within those limits, assuming the general maritime law to be the basis of the system, depends upon what has been received as law in the usages of this country; and I will give a quotation from the Kalibia case on a question of Admiralty jurisdiction. It was urged by counsel on one side that the Commonwealth Act of 1909 was valid. Mr. Justice Barton, at page 704 of the report of the Kalibia case, summed the matter up in these words -

Whatever might be the force of the reasoning of those cases, if Australia were in the same position as the United States at the time of the making of their Constitution - namely, that of a separated nation of independent sovereignty in its relation to the United Kingdom - the reasoning has no force here, where the implication from imperative necessity cannot be drawn. The power to legislate on matters of Admiralty and maritime laws, if it existed in the several States at the time of Federation, remains reserved to them by force of section 107 of the Constitution. But there would be, and there is, an over-riding power to legislate on the subject in the Parliament of the United Kingdom, and the grant in section 76, sub-section 3, cannot be construed as an implied transfer, or even delegation of that legislative power to the Parliament of the Commonwealth in respect of Australia. Such an- argument, as will easily be seen, differs radically from that on which the- American cases were decided, for the necessity on which they are avowedly stated to be founded does not exist here. The power is merely given qua the restricted subject-matter to which it is in terms confined, namely, the confirmment of jurisdiction in a particular class of controversies.

That is a power which, as I have said, we have not yet exercised. I will make one other quotation from a law report, and that is from a Court of Appeal judgment on the question of what is English jurisdiction. In the case of the Queen v. The Judge of the City of London County Court - I. Queen’s Bench, 1892, page 272 - the judgment of Lord Esher said -

Mr. Justice Story, whom I may venture to call an exceedingly great judge, in one of the most learned judgments which could be pronounced, went through every case which could be found anywhere from the earliest time, and he asserted for the Admiralty Court the largest jurisdiction which that Court had ever claimed. He held that in America, at all events, that Court had jurisdiction, not only over every tort committed on the high seas, but over every contract which is to be wholly or partly performed on the high seas. In that particular case hs held that the Court of Admiralty had jurisdiction over a policy of insurance, and that a policy of insurance in respect of ships or goods could bc enforced by it. It is undoubted that no such jurisdiction has ever been even attempted in England. Now, I do not think the judgment of Mr. Justice Story has been adopted to any thing like its fullest extent even in America I am inclined to think that American Judges have since flinched from it, and that the American Courts do not attempt to exercise such a jurisdiction. But that judgment has been treated in one way only in this country. It has always been said that it is a departure by the American Courts with regard to- the jurisdiction of the Admiralty from what has been held in England.

– I do not know. My time for dealing with the matter is limited. 1 might quote from Harrison Moore and several other writers on the subject, but I will conclude with a quotation from Keith, Vol. II., page 1211 -

It does not appear probable that the extension of the power of the Dominion Legislatures would by any means result in greater simplification in shipping matters. On the contrary, it would seem that further comparison would be inevitable if the powers of the Dominions are extended. What does seem desirable is’ that some agreement should be come to between the Commonwealth and New Zealand with regard to conditions of shipping, and, if possible, some agreement with the United Kingdom.

At present the existing legislative powers are tending to confusion and difficulty, anr] to add needlessly, and without corresponding advantage, to the problems of British shipping.

All I can say is that that is the conclusion I formed from an independent study of the various powers, and that is the dictum of one of the ablest writers dealing with the powers of the Imperial Parliament in relation to the Dominions.

Debate (on motion by Mr. Carr) adjourned.

House adjourned at 10.18 p.m.

Cite as: Australia, House of Representatives, Debates, 30 July 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19120730_reps_4_64/>.

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House of Representatives30 July 1912

QUESTION

DEPARTMENT OF DEFENCE

Mr WEST:EAST SYDNEY, NEW SOUTH WALES

Mr SPEAKER:

Mr ROBERTS:Minister (without portfolio) · ADELAIDE, SOUTH AUSTRALIA · ALP

Mr FULLER:ILLAWARRA, NEW SOUTH WALES

Mr ROBERTS:

Mr RILEY:SOUTH SYDNEY, NEW SOUTH WALES

Mr ROBERTS:

Mr FENTON:MARIBYRNONG, VICTORIA

Mr ROBERTS:

Mr FULLER:

Mr ROBERTS:

Mr MATHEWS:MELBOURNE PORTS, VICTORIA

Mr ROBERTS:

Mr WEBSTER:MACQUARIE, NEW SOUTH WALES

Mr ROBERTS:

QUESTION

TRANSCONTINENTAL RAILWAY

Mr CANN:NEPEAN, NEW SOUTH WALES

Mr KING O’MALLEY:Minister for Home Affairs · DARWIN, TASMANIA · ALP

Mr JOHN THOMSON:COWPER, NEW SOUTH WALES

Mr KING O’MALLEY:

Mr HIGGS:CAPRICORNIA, QUEENSLAND

Mr KING O’MALLEY:

QUESTION

FEDERAL CAPITAL

Mr J H CATTS:COOK, NEW SOUTH WALES

Mr KING O’MALLEY:ALP

QUESTION

PROTECTION OF MEMBERS

Mr WEST:

Mr SPEAKER:

QUESTION

ALLEGED CANCER CURE

Mr W J JOHNSON:ROBERTSON, NEW SOUTH WALES · ALP

Mr TUDOR:Minister for Trade and Customs · YARRA, VICTORIA · ALP

PAPERS

DEATH OF THE MIKADO

Mr FISHER:Prime Minister and Treasurer · Wide Bay · ALP

Mr DEAKIN:Ballarat

QUESTION

KALGOORLIE TO PORT AUGUSTA RAILWAY

Sir JOHN FORREST:SWAN, WESTERN AUSTRALIA

Mr KING O’MALLEY:ALP

QUESTION

IMPORTATION OF OPIUM

Mr HIGGS:

Mr HUGHES:Attorney-General · WEST SYDNEY, NEW SOUTH WALES · ALP

QUESTION

MEAT TRUST: EXPORT DUTY

Dr MALONEY:MELBOURNE, VICTORIA · ALP; FLP from 1931; ALP from 1936

Mr TUDOR:ALP

QUESTION

CUSTOMS STATISTICS

Mr FENTON:

Mr TUDOR:ALP

QUESTION

ELECTORAL ADMINISTRATION

Mr SINCLAIR:MORETON, QUEENSLAND

Mr KING O’MALLEY:ALP

Sir JOHN FORREST:

Mr KING O’MALLEY:

Mr W ELLIOT JOHNSON:LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr KING O’MALLEY:

Mr W ELLIOT JOHNSON:LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr KING O’MALLEY:

Sir JOHN FORREST:

Mr FISHER:ALP

Sir JOHN FORREST:

Mr KING O’MALLEY:

QUESTION

DEFENCE

Mr CHANTER:RIVERINA, NEW SOUTH WALES

Mr ROBERTS:ALP

Mr KELLY:WENTWORTH, NEW SOUTH WALES

Mr ROBERTS:

Mr WATKINS:for Dr. Maloney

Mr ROBERTS:

House of Representatives
30 July 1912

Mr WEST:
EAST SYDNEY, NEW SOUTH WALES

Mr ROBERTS:
Minister (without portfolio) · ADELAIDE, SOUTH AUSTRALIA · ALP

Mr FULLER:
ILLAWARRA, NEW SOUTH WALES

Mr RILEY:
SOUTH SYDNEY, NEW SOUTH WALES

Mr FENTON:
MARIBYRNONG, VICTORIA

Mr MATHEWS:
MELBOURNE PORTS, VICTORIA

Mr WEBSTER:
MACQUARIE, NEW SOUTH WALES

Mr CANN:
NEPEAN, NEW SOUTH WALES

Mr KING O’MALLEY:
Minister for Home Affairs · DARWIN, TASMANIA · ALP

Mr JOHN THOMSON:
COWPER, NEW SOUTH WALES

Mr HIGGS:
CAPRICORNIA, QUEENSLAND

Mr J H CATTS:
COOK, NEW SOUTH WALES

Mr KING O’MALLEY:
ALP

Mr W J JOHNSON:
ROBERTSON, NEW SOUTH WALES · ALP

Mr TUDOR:
Minister for Trade and Customs · YARRA, VICTORIA · ALP

Mr FISHER:
Prime Minister and Treasurer · Wide Bay · ALP

Mr DEAKIN:
Ballarat

Sir JOHN FORREST:
SWAN, WESTERN AUSTRALIA

Mr KING O’MALLEY:
ALP

Mr HUGHES:
Attorney-General · WEST SYDNEY, NEW SOUTH WALES · ALP

Dr MALONEY:
MELBOURNE, VICTORIA · ALP; FLP from 1931; ALP from 1936

Mr TUDOR:
ALP

Mr TUDOR:
ALP

Mr SINCLAIR:
MORETON, QUEENSLAND

Mr KING O’MALLEY:
ALP

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr FISHER:
ALP

Mr CHANTER:
RIVERINA, NEW SOUTH WALES

Mr ROBERTS:
ALP

Mr KELLY:
WENTWORTH, NEW SOUTH WALES

Mr WATKINS:
for Dr. Maloney

Mr GROOM:
DARLING DOWNS, QUEENSLAND

Mr KING O’MALLEY:
ALP

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr FISHER:
ALP

Mr GLYNN:
Angas

Mr CARR:
Macquarie

Mr GROOM:
Darling Downs

Mr HUGHES:
ALP

Mr HUGHES:
AttornegGeneral · West Sydney · ALP

Mr JOSEPH COOK:
Parramatta