4th Parliament · 3rd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Enrolment - Queensland Divisions
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : - 1 and 2. During the electoral canvass names were transferred from the old to the new rolls in pursuance of the Proclamation directing the preparation of the rolls without cards being immediately signed. The cards relating to these enrolments, which represent a small percentage of the electors, are being received daily. The new rolls having been prepared, no names will henceforth be added unless claims are lodged with the Registrars.
asked the Minister of Home Affairs, upon notice -
Will the names of any electors appear on the new rolls other than those for which claims have been received and for which the Department holds signed cards?
– The following is the reply : -
During the electoral canvass names were transferred from the old to the new rolls, in pursuance of the proclamation directing the preparation of the rolls, without cards being immediately signed. The cards relating to these enrolments, which represent a small percentage of the electors, are being received daily. The new rolls having been prepared, no names will henceforth be added unless claims are lodged with the Registrars.
asked the Minister of Home Affairs, upon notice -
– The answer to the honorable member’s question is as follows: - 1 and 2. The Queensland re-distribution pro posalshaving been rejected by this House, I propose to await the receipt of fresh proposals, which the Commisioners have been directed to. make, before taking any further action.
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow : -
The Premiers of New South Wales, Queensland, South Australia, Western Australia, respectively concurred. The Premier of Victoria suggested a consultation between Ministers of the Crown and the States. The Premier of Tasmania did not propose to send a representative.
asked the Minister of External Affairs, upon notice -
Mr. FISHER (for Mr. Thomas).The answers to the honorable member’s questions are as follow : -
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : -
MINISTERS laid upon the table the following papers : -
Federal Capital City - Competitive Designs - Six Additional Reproductions (for incorporation in Report laid on the Table on 16th July, 1912).
Universal Training - Report of the Minister for Defence an the Progress of, to 30th June, 1912 - Royal Australian Naval Reserve “O” Cadets.
Motion (by Mr. Hughes)proposed -
That this Bill be now read a third time.
.- There is one point to which I wish to call the attention of the Attorney-General. I forget at what stage, but during the discussion I referred to the possibility that some of the provisions of the Bill, might be taken as amounting to a vesting of judicial powers in Commissions. It is clear that we are giving to Commissions judicial remedies, procedure, and penalties. I did not exhaust the. point, because it is a matter of doubt whether we are really creating a judicial tribunal; but a writer, signing his letter “ Lex,” draws attention to the matter in this morning’s Argus. I shall not deal with the points raised in that letter, because we did, by anticipation, touch on them. I cited from the report of the Huddart Parker case something said in argument as to whether the questions administered under the Australian Industries Preservation Act of 1906 did not amount to an ‘interference with the judicial powers of the Commonwealth. The High Court there decided that it was not a usurpation of the judicial power in any sense, but there was a dictum of Mr. Justice O’Connor somewhat relevant to the point raised in the letter to which I have referred. He pointed out, as one of the reasons why it was not an interference . with judicial power that the questions preceded action, that they really amounted to a departmental inquiry prior to .action. In America, if I am not mistaken, the putting of these questions is part of the judicial proceedings under the Sherman Act of 1890 ; the questions are asked after the proceedings have been begun. I should like to draw the attention of the AttorneyGeneral to the fact that, in some of the clauses of the Bill, we may be doing more than giving ordinary judicial remedies ; that we may be, as in the clause dealing with contempt, trenching on the power of the Judiciary. By section 71 of the Constitution the judicial power of the Commonwealth is vested in the Federal Supreme Court, or in such other Court as Parliament may create and invest with Federal jurisdiction, subject, of course, to the prerogative of the Crown in cases of appeal either as a right or by permission. At the end of the judiciary part of the Constitution there is a provision that all indictable offences shall be tried by a jury ; and if we look at proposed section 6c we see that the offence of contempt is an indictable offence punishable, I believe, with three months’ imprisonment. If the President is a Judge of a Supreme Court ‘or a District Court of a State, or a Judge of the High Court, he is given the power to impose the penalty right off, instead of the case going for trial in the ordinary way ; the President has the power of judicially determining the matter and sentencing the offender. If that be so, it may be held that this section is in violation of section 80 of the Constitution, which is that providing that the trial of indictable offences, which may exist at common law, as well as by declaration in the Act, must be before a jury. We have already argued the matter sufficiently, and I shall not further elaborate it; but I think it my duty, having previously thrown some doubt on the clause, and in view of the press correspondence, to draw the AttorneyGeneral’s attention to it.
.- The honorable member for Angas has called attention to a constitutional aspect of the question which has extremely serious implications. I shall not attempt at this stage to enforce that point, or to add anything further. It must be perfectly plain to every honorable member, without referring to legal practice or legal doctrine, that, if any tribunal, charged with what may be ordinarily termed services incidental to governmental functions, is called upon to exercise over those who give evidence before them a judicial authority including the infliction of judicial penalties, this marks not only a very serious departure from the theory and principle of the Constitution, but a departure which no experience that we have justifies, and I venture to say that no experience will justify. In all those cases in which conduct, action or refraining from action, implies a breach of the obligations of the person committing it in relation to some body properly authorized to make full inquiries, it is in the highest degree desirable that such extreme powers should be exercised by an independent ‘ authority. A cold-blooded inquiry into all the circumstances, contingencies, and relations of those actions, with the final determination of the precise penalty proper to be imposed, ought to rest with persons other than those associated with the inquiry, who, the more they are penetrated with its importance and its interest, become so much more liable to lose that judicial balance which it has been the pride of the British- nation to maintain under exasperating and trying circumstances. That is the plain and practical risk before us. Men of judicial training and temper, in their endeavour to perform a high public obligation imposed upon them, may come into conflict with persons who, whether from ignorance, prejudice, or, it may be, a determination to resist, set themselves athwart the progress of the Commission to delay and defeat it. Taking all such circumstances into account, and admitting that it is perfectly proper that a tribunal appointed by the Government should have power to send offenders elsewhere to be dealt with, as is the ordinary custom and almost universal practice, it is highly undesirable that those hot from. the encounter, should impose judicial penalties of a severe character, so to speak, on the instant. These should always be imposed with the utmost detachment from all such surroundings, personal or otherwise.
– To what section does the honorable member allude?
– To the power given to punish witnesses who do not comply with the Commission’s requirements. Such persons are subject to very serious penalties.
– Not by a Royal Commission, but by a Court.
– No j if the offence is committed in the face of the Royal Commission, the duty may be undertaken by the President.
– If he is a Judge.
– Even of a District Court. That is placing even a Judge of the major Court, let alone a Judge of a minor Court, in a position in which he is never placed during his judicial work properly so called.
– It clothes a Judge with exactly the same powers he has elsewhere.
– No. Under the circumstances, it is confessedly in the highest degree desirable that there should be a severance, a guarantee to the person who is running the risk that he is not to be dealt with off-hand by some one associated with the inquiry, but by an independent tribunal, looking at all the circumstances in cold blood.
– This has reference to open contempt in the face of the Court.
– This is not a Court, and its proceedings are not of the nature ordinarily conducted in a Court ; the whole atmosphere, attitude, -and surroundings are different.
– But the President has to be a Judge.
– True; but he is not only in the position of a Judge, he is also in the position, I shall not say of a public prosecutor, except in the sense that he is prosecuting an inquiry, but of a person liable to be interested, who ought to be deeply interested in the success of the inquiry intrusted to him. The greater his interest so much the more is it a means of disturbing the absolute judicial equity and poise always required in British Courts in proceedings on which penalties and punishment may follow. I made an appeal in this regard when the Bill was in Committee, and now repeat it again, reinforced by the strong constitutional argument submitted by the honorable member for Angas.
– I desire to protest against the final passing of the Bill in its present form. It appears to clothe a Royal Commission with powers far beyond the powers of the High Court of the realm, and it places the witness, in particular, at a disadvantage which he would not be at in connexion with any Law Court.
– Strong methods are required to deal with strong situations.
– That is the argument which was stated very intelligently by the honorable member for Macquarie, who said that powers are necessary to deal with the big trusts and corporations which are being formed in Australia; and on that account he is perfectly willing to give this proposed method a trial. This is, the honorable member said, an experiment ; and I have no objection to experiments so long as we safeguard the liberties and privileges of the individuals of the community. But this Bill applies the same harsh treatment and severe penalties to an individual member of the community that it applies to a corporation or a trust. There is no distinction. I am quite aware that the trusts here may so develop as to become a menace to our industrial life and the community in general, but we are not peculiar in that respect. On the other hand, so far as I know, no other country is framing legislation such as this, and conferring similar powers upon individuals who have no legal training and who may be just ordinary citizens.
– The English law has frequently gone as far as this, so far as the power given to Royal Commissions is concerned.
– Do you want one law for the rich and another for the poor?
– I do not. I simply want the poor man protected properly.
– I think that is what we are all after.
– That is all I am after. I want no excuse of any kind for a law-breaking, law-evading corporation. If they are breaking the law and doing injury to the community I want them dealt with with all the severity possible, because I believe that the moment competition ceases monopoly begins, and monopoly cannot but be harmful to any community in which it entrenches itself. I hope, therefore, that we, who are pleading that these powers are too severe and harsh, will not be accused of standing here in defence of trusts and combines.
– The honest man need not fear this Bill. It applies only to the rogue.
– I suppose the honestman need not have feared the Star Chamber. The Government are setting up another Star Chamber here. The honorable member’s remark might as well apply to a Star Chamber as to this Bill, for this Bill will authorize the creation of a veritable Star Chamber if it finds its way to the statute-book. The Attorney-General says that Royal Commissions in England frequently have powers such as are contained in the Bill, but I should like him to point them out. Yesterday the honorable member for Angas showed that the penalty for refusing to answer questions in connexion with Royal Commissions in Great Britain to-day, was, I think,£10.
– What effect will a£10 fine have?
– I am’ only pointing out that, in that country over the waters, which we are supposed to be following in many respects in our legislation, and where I suppose these trusts and combines have far greater power than they have in Australia-
– Exactly; and this is one of the reasons for it.
– Is it the reason? I am pointing out that there they are getting on very well.
– Does the honorable member mean that the trusts are getting on very well?
– They are getting on there without these tremendous penalties, and without depriving a man of his liberty, as is proposed here. At any rate, I point to the disparity between the penalty there and here for a similar offence. There it is£10; here it is£500.
– Which would be the more effective ?
– If a man has only a. pound in his pocket, I think that the £10 fine would be quite as effective as the £500.
– Not for a trust.
– Not if it is a trust, but does the honorable member sup pose that a fine of , £500 will affect a trust ?
– It will affect it more than would a£10 fine.
– Neither fine will hurt a trust.
– The poor man to whom the honorable member refers never transgresses in this way.
– I am getting all these interjections on the supposition that the Bill is intended only to hit a big trust. I know that is the mainspring of it, and the reason for its introduction. If honorable members opposite have made up their minds that the Bill must hit the small man as well as the big man, all right; but they will allow me to point out the severity and harshness of the effect of a Bill like this upon the man who is not a trust but an ordinary citizen of the community. Under this Bill a man must divulge all the secrets of his business. There must be no secrets that the Royal Commission may not investigate, whether they have to do with the business concerned or not, and I am not forgetting that provision which relates to the relevancy of evidence. The trouble I see in connexion with a Bill like this is that a man has, first of all, to make a public exhibition of the whole of his business secrets and transactions, and afterwards he may apply for any redress that the Bill may give him. He must first divulge the whole of his business to the Commission before he can even set about getting any protection from the law, and it is no comfort to him, after he has told the Commission all the secrets of his business, the profits he is making, and the prices he is charging, to know that he may then go into a Law Court and obtain a remedy for any injury that has been caused to him. The witness ought to have protection in connexion with the getting out of the evidence, and not with the justifying of it afterwards in a Court of law. The only justification we have nad for the measure from the Attorney-General is the furnishing of a couple of parallels. He points to the Parliamentary Witnesses Bill, saying that that was a very severe measure also. The reply is that that Bill never passed. It is not the law of the country. It was a proposition only, and was turned down and repudiated by the House. Its penalties were nothing like so severe as those in this Bill, but they were too severe for the House to agree to. It is, therefore, of no use to keep quoting that Bill as a parallel to the legislation we are now putting through.
– What becomes of the honorable member’s charge that the Government were not anxious to prosecute the trusts ?
– Order !
– Is this a matter of enabling them to prosecute the trusts?
– Will any honorable member say that there is anything in this Bill which will bring a swifter result to an inquiry with regard to a trust than can take place now ?
– What a question to ask !
– Order ! I am sorry to interrupt the honorable member for Parramatta, but I must appeal to honorable members to cease these interjections. Honorable members now speak under a time limit, and I ask them not to take up the time of the honorable member who is addressing the House.
– Might I point out, with your permission-
– Order ! The honorable member is distinctly out of order in taking his present course. He must not interrupt an honorable member who is in possession of the floor.
– I do not think that the Bill will shorten the legal processes. Any quantity of litigation will be begotten by its very structure. As the honorable member for Angas pointed out yesterday, it is imperfect in its drafting, as all Bills are. I am not saying that this is singular, but there are many ways in which the legal coach and four will be driven through it, as it has been driven through Acts many a time before.
– There have been very few driven through ours. Many were going to be driven through the Land Tax Act, but very few got through.
– Order !
– That may be owing to the help which my honorable friend got from this side in shaping its provisions. He has received a good deal of help in connexion with this measure, and there may be fewer loopholes in it as a consequence, but there will still remain loop holes, and I do not think the legal fraternity will find any difficulty in making trouble regarding the Bill. It is true, as the AttorneyGeneral has said, that provision is made in the Australian Industries Preservation Act for similar penalties ; but, in that case, the penalties are to be imposed by a Judge sitting in a Court of law, where a witness is protected and surrounded by safeguards. It is not so in this case.
– It is.
– No; under thisBill, if a man commits contempt, he may be sent to gaol at once without the presence of a solicitor to safeguard his interests in any way.
– And the same thing can. happen in a Court of law.
– In a Court of law a witness has the privilege of being represented by a solicitor.
– So he has in the case of a Royal Commission.
– A witness hasno right to be represented unless by leaveof the Commission.
– And he has no right of appeal.
– He can be sent to gaol without right of appeal of any kind.. The position under the Australian Industries Preservation Act is different.
– A witness dealt with by.a Royal Commission has the same r’ght of appeal as he has in a Law Court.
– There is noprovision in the Bill in regard to the right of appeal.
– It is not necessary that there should be. The right of appeal existsas a right if a man goes beyond his jurisdiction.
– Certainly; but the presiding Judge in the case of a Royal Commission would be acting within hisjurisdiction in sending a witness to gaol, or imposing any of the other harsh penalties for which this Bill provides. I should liketo know what appeal there can be fromsummary jurisdiction of the kind for whichthis Bill provides. The Bill gives Royal’ Commissions much greater powers than any of the Courts possess. The power of aJudge acting as Chairman of a Royal Commission is increased as the privileges of witnesses is decreased. If a witness does; not do exactly what a partisan Commissioner says he must do, he is liable to havehis liberties taken from him.
– Does the honorable member say that a Judge would be a partisan ?
– I make the honorable member a present of a question that he should not expect me to answer. I do not desire to answer it.
– But the honorable member said that a witness would have to do whatever a partisan Commissioner required him to do, and the only Commissioner who could send a man to gaol under this Bill is a Judge.
– I make the honorable member a present of anything I have said. I hold that, under this Bill, a man is liable to be indicted for an offence, owing to the baiting of a partisan Commissioner. Moreover, Royal Commissions are no longer to be criticised in any way.
– The honorable member knows that that is an exaggeration.
– I do not. Can the honorable member give any other meaning to the provision that it shall be an offence, in writing or speech, to use words that are false and defamatory of a Royal Commission? What constitutes defamation of Royal Commissions ? A mere statement that a Commission was composed of partisans would be defamatory ; yet, every one knows that some of our Commissions are composed of partisans. In making that statement, I am defaming some of our Commissions, and if I uttered it outside after this Bill had become law, I should run a risk of being sent to gaol. I wish to point to one or two of our recently-appointed Commissions. There is presiding over one of them an honorable member who, in this House, has moved that all the means of distribution ought to be nationalized. That man enters upon such an inquiry as that upon which he is now engaged with a bias, unconscious though it may be. I am not accusing him of anything but that which all of us, in our poor human nature, are heirs to - unconscious bias.
– The honorable member is going as near the line as he can go.
– I am not going nearer the line than I have a right to go. It is time that public attention was called to the composition of some of our Royal Commissions.
– Order ! The honorable member is now going beyond the question before the Chair.
– I am simply illustrating the kind of tribunal to which these tremendous powers are to be given. If you rule that I am not to refer to the composition of a Royal Commission, Mr. Speaker, I shall have to pass on to another matter, but I am beginning to wonder whether, apart from the consideration of dry legalities, it is worth while discussing any matter here. The whole point of this Bill, it seems to me, relates to the kind of tribunal in which it vests these huge inquisitorial powers. If I may not refer tothat matter, I fail to see how I can usefully discuss the Bill. Witnesses will bedragged before Royal Commissions without protection. They will not even receive payment until they actually put in an appearance, and they will be subject to all these harsh penalties in. respect of anything: they may do to affront a Commission or tolead to a false impression being created- I repeat that there is all the difference-
– I was just going to ask if the honorable member did not think he wastediously repeating himself.
– Order !
– I ask to be protected against these insulting observations.. You are constantly pulling me up, Mr. Speaker; yet I cannot rise without being, assailed by insulting observations on thepart of honorable members opposite.
– The honorable member has no right to reflect on the Chair.
– I am appealing; for the protection of the Chair.
– The honorable member has no right to reflect in any way onthe Chair. I have already appealed tohonorable members to refrain from interjecting, and in future, if an honorablemember interjects, I shall call upon him by name to cease doing so. I have refrained’ on many occasions from interrupting thehonorable member and others to call uponhonorable members to cease interjecting,, because I do not think it is desirable that an honorable member should be frequently^ interrupted while addressing the Chair. 1 did not hear what the honorable member for Capricornia said, but if he made a statement which the honorable member regardsas offensive, I shall ask him to withdraw it.
– Let it go.
– I beg to withdraw the remark.
– I desire to ask, Mr. Speaker, whether an honorable member when addressing the Chair is not as much: out of order in putting questions to honorable members, as those who actually interject. I request you, Mr. Speaker, to ask the honorable member who is speaking to. cease asking questions-
– Order !
– From honorable members on this side of the House.
– How many anore of you are going to deliver a lecture? I get quite enough from the Chair. If this Bill passes, no one will be able to discuss the composition of a Royal Commission, and a privilege that we have exercised many a time in the public interest will have departed for ever, or until the Act is repealed. Having regard to the composition of Royal Commissions in recent times, and particularly to that of Commissions appointed by the present Government, these words “ false and defamatory” have a sinister meaning. They mean that, however partisan a Commission may be, no one outside must call attention to the fact. That ought not to be the state of affairs in a country like this. There should be opportunity for the freest discussion of a Commission, so long as the criticism is reasonable and keeps to the facts. But under the Bill it would be defamatory to say of a Commission that it consisted of three partisans representing one side in politics and a fourth Commissioner representing the other side.
– It would not be defamatory if the statement were one of fact.
– Could any statement do more to bring a Royal Commission into disrepute than one showing its composition to be partisan? Would anything be more calculated to destroy public confidence in a Commission than to publish a fact of that kind? Anything tending to bring a Commission into disrepute would naturally be interpreted by the Commissioners as defamatory. However, it is useless to pursue the matter further, because the Bill is sure to pass. There are some curious distinctions between the legal status of a Judge and of this tribunal. Proceedings of any kind for the commitment of a person for an indictable offence may be commenced by any one; these proceedings will arise out of an inquiry where the witness is not protected in any way. Any person, who may have no connexion with the inquiry, may set in motion proceedings for the commitment of the witness for an indictable offence. But only the Attorney-General, and some others named, may take proceedings in regard to matters of summary jurisdiction’. The final appeal is to be dealt with by a single Justice of the High Court, sitting without a jury. It seems to me that we have narrowed the privileges of indicted persons by almost every Act we have passed of recent years, and those who are now helping to push the Bill through so hurriedly will, in years to come, try to undo this legislation. Freedom is being assaulted at every turn, and that in the interests, not of the larger liberty of the whole, but of a section who believe that thereby they may advance the propaganda in which they are so much interested. They may be honest in their view, as I am in mine, but they are woefully mistaken. My reading of the past, and my knowledge of the great struggles which won the liberties which we possess, convince me that our faces are turned in the wrong direction. Instead of trying to grapple with the trusts by processes at law, we are passing legislation which will affect the most innocent in the community as much as the most guilty. That we should not do. While making it as difficult as possible to do wrong, we should make it as easy as possible to do right. There should be the fullest and freest interchange of opinion regarding matters affecting public policy and legislation. The proposals now under discussion relate to proceedings taken with a view to the framing of policies, and are not necessarily concerned with the commission of crime, or of any offence properly leading to the deprivation of individual liberty. The offences for which the Bill provides will ariseout of mere processes of inquiry for the purpose of framing policies on which to legislate. To make the penalties even higher than those inflicted by a Court of law, and to deprive witnesses of the safeguards which protect them in Courts of law, is to follow an unnecessarily stringent and harsh course, and to give powers which are not required. What is desired by honorable members can be got by the ordinary processes of law. The Attorney-General does not know that the Royal Commissions Act has broken down, and cannot know that for a day or two, when the Sydney inquiry will have finished. But he will not wait for that. In my opinion, the action he has taken will not shorten legal processes, but will leave our citizens open to all sorts Of dangers.
.- The third reading of a Bill is a stage which has come to be regarded in this, and in other Parliaments, as formal. I deprecate the repetition at this stage of the arguments used during the second-reading debate, especially when, as in this case, the hope that they may have effect is futile. But we now have an opportunity to draw attention to features in the proposed legislation of which many honorable members seem to have lost sight, or desire to ignore. The Bill has been discussed upon the supposition that the Sugar Commission was appointed for the purpose of dealing with a combine. I protest against that assumption. One of the objects of the Commission was to find out whether the Colonial Sugar Refining Company is or is not a trust or a combine. From a pretty intimate knowledge of the constitution of the company, I do not hesitate to say that it is neither ; it is merely an enormous organization, founded upon ordinary business lines, which has grown so large, and has extended its operations so greatly, that many who are not familiar with the evolution of big commercial concerns have jumped to the conclusion that its operations are injurious to the community, and should be inquired into in a spirit of hostility. All the arguments and interjections which have come from the Ministerial side have been based on the assumption - I use the word in its logical sense as meaning a belief in a proposition that has not been proved - that the Colonial Sugar Refining Company is a trust or a combine.
– The honorable member must not discuss that.
– You will see, Mr. Speaker, that I am perfectly in order in what I am about to say. Let honorable members opposite imagine for a moment that the result of the Commission’s inquiry were to show that the company is an ordinary large commercial undertaking ; would they be prepared to say that the provisions of the Bill are such as they would apply to an ordinary trading concern?
– Yes ; every time.
– The honorable member may be of that opinion. He would make a splendid Turk or Russian. I am speaking of the average man, whose mind is in a fair balance. Would such a man consider the provisions of this measure fairly applicable to an investigation of the operations of an ordinary business firm, such as Buckley and Nunn, or Foy and Gibson ?
– I accept the honorable member’s statement.; though he must be regarded as somewhat exceptional ; as arara avis. The honorable member for
East Sydney guffaws, because he does not understand my argument.
– Nor any one else.
– I should not pay any attention to the honorable member were it not for his stupid and offensive remarks.
– The honorable member must withdraw that statement.
– I do so; but the circumstance reminds me of Marryat’s story of the naval officer who said of another that he was not “fit to throw guts to a bear,” and when asked to recall the phrase, he replied that he did so willingly, because the other admitted that he was fitted to throw guts to a bear.
– The honorable member must withdraw that remark, too.
– I withdraw it, and apologize. It is not right, in dealing with a measure of this kind, to assume that the corporation at which the Bill is aimed-
– The honorable member must not go beyond the question.
– I have a perfect right to consider the constitution of the bodies at which the Bill is aimed. It is aimed at corporations of many kinds, and I have a right to submit that it is not a fit measure to deal with corporations which are not shown to be trusts or combines.
– The honorable member spoke of the corporation at which the Bill is aimed - a specific and distinct statement. He must not make such a statement.
– I made the statement, but I was passing away from it, and was about to say that we have no right, in framing legislation, to assume that it is to be applied solely to a combine or trust, which, in the view of many honorable members, is a dishonest entity which should be suppressed. It may be assumed that the corporations to which the Bill will apply will be perfectly honorable and allowable commercial enterprises, which have grown so large that a small mind cannot compass them, and, therefore, attributes to them all sorts of evil propensities and purposes. The Bill deals with three kinds of offences. There are, first, the offences with which the Chairman of a Commission has power to deal summarily; they are to be found in clause 6 of the proposed new sections 6a, 6b, and sub-clauses 2 and 3. The Chairman has power to deal summarily with any witness who is subpoenaed and does not appear. I undertake to say that these provisions give powers such as are possessed by no Supreme or High Court Judge in any of the British dominions. The President has power to send for people, break into their houses, and arrest them without any prior inquiry as to the circumstances under which they have refused to come to Court. I have practised for five and twenty years in the Courts of two States of the Commonwealth, and I have never known a Judge, where a witness has failed to appear, have that witness arrested without first of all inquiring through the solicitor for the side for which the witness was going to appear, to discover trie cause of his action. I have never known a case in which a Judge has summarily arrested a man who failed to appear on the first summons. It will be seen, therefore, that these provisions are absolutely beyond anything that has hitherto been done.
– Has the honorable member ever known a man refuse to appear before a Judge?
– Frequently. _
– And what punishment did the man get?
– The Judge made inquiry, and the man was compelled to attend afterwards. I have never heard, however, of a Judge summarily submitting a man to arrest under warrant simply because he did not appear when the subpoena required him.
I now turn to the second class of offences under the proposed section 6 (h) onwards. Here we have two classes of offences, some of which are indictable, and others of which are simply offences. I do not know whether honorable members know that under our Judiciary Act there is a provision that, when a man is prosecuted for an “ indictable” offence, the law provides that a certain procedure shall be adopted. It is provided that indictable offences against the laws of the Commonwealth shall be prosecuted by indictment, and that a man committed for trial for such an offence may, within fourteen days, and before the jury is sworn, apply to a Justice in chambers, or a Judge of the Supreme Court of a State, for the appointment of counsel for his defence. If it be found to the satisfaction of the Justice 01 a Judge that the person “is without adequate means, and that it is desirable, in the interests of justice, that such appointment should be made, the fact is communicated to the Attorney-General, who may, if he thinks fit, cause arrangements to be made for the defence. Then section 80 of the Constitution provides that a trial on indictment shall be by a jury, and shall be held in the State where the offence is committed, or, if the offence was not committed within any State, the trial shall be held at some place appointed. The moment a man has committed an offence which is held to be indictable, he comes under section 80 of the Constitution, and must have a jury, and under section 69 of the Judiciary Act he is entitled to have the assistance of counsel.
– With the permission of the Attorney-General.
– Of course; I have said that it is so provided. In addition to a number of offences which are alleged to be indictable there are other offences in connexion with which the word “indictable” is not used. For instance, there is proposed section 6 (o), which deals with persons who wilfully insult, disturb or interrupt proceedings, use insulting language, or by writing or speech use “ false and defamatory “ words of a Royal Commission. Why the distinction is drawn I do not know. If the Attorney-General has not had it pointed out to him, he ought to notice that the effect is that a man charged with an offence not described as indictable will not only possibly lose the right of being tried by jury - though this is doubtful - but will also lose his right, under the Constitution, to have counsel assigned to him. It seems to me that the offences which are made indictable are no more serious than those which are made merely offences. The honorable member for Parramatta described the drastic, and what he called the “ Star Chamber” provisions of the Bill ; and I indorse all he said ; but I am not going over the arguments which were used by honorable members on this: side on the second reading. We have said1 and done all we can on our part, and if honorable members opposite are prepared to let the Bill go as it stands, I can only say that it will be a very useful measure for electioneering purposes, and I, for one, shall use it for all k is worth. But it will behove the Attorney-General to observe the distinction between the offences so that people may not afterwards say - as I shall - that there, were offences constituted in the Bill and differentiated from others, and that a man was not allowed by law, and as a matter of course, to have a jury or to apply for counsel. The President is, no doubt, invested with Star Chamber powers. If he is a strong partisan, as may possibly be the case with some Royal Commissions, he need take no trouble to inquire whether the offender be old or young, or infirm, or whether he and his family are dangerously ill, but may send forth his ukase and have him arrested and dragged before the Court. There is nothing to provide that the President must be a Supreme Court Judge, and yet, though he be not a Judge, he will be able to exercise the same powers. There is at present, I think, a Royal Commission on the fruit industry, of which an honorable member opposite is President. That gentleman may or may not have a legal knowledge, and may take” an arbitrary view of an instance of the sort, and have somebody dragged before the Commission. I do not think that that honorable member would act in such a way, but I can picture a class of men so strong in partisanship and so bitter in their determination to drive the nail home with regard to some particular purpose for which a Commission has been appointed, that they, would, without reason, take drastic action of the sort. We ought not to pass a Bill in an abstract form which is applicable, and in a way dangerous, to the peace and goodwill of the community. The question was raised by the honorable member for Parramatta as to what proposed section 6 (o) involved ; and he was quite right in pointing out a view that seems to have been lost sight of. I heard two honorable members on my left say that proposed section 6 (o) provides that a person who, by writing or speech, uses words false and defamatory to a Royal Commission is guilty of an offence. This is not” an indictable offence; and it might involve the whole question as to whether or not the words used were defamatory of the Commission. Any treatise on libel and slander may cover 1,000 pages, and be full of the keenest argument as to what is or what is not defamatory. It has, for instance, been held defamatory to say of a man that he was “ an honest lawyer,” because the jury read into those words a spirit of irony which suggested that he was a dishonest lawyer. It will be seen, therefore, that these questions run very fine in their distinctions. It is not difficult to imagine certain words being used of a Commission, and being held by an AttorneyGeneral, especially if he be a partisan
Attorney-General, or held by a partisan Royal Commission, to be defamatory. The honorable member for Parramatta said that it would be held to be defamatory to say of a Commission that it was partisan ; and I quite agree that if it be driven into the public mind that a Royal Commission which is doing work in the name of His Majesty the King is partisan, the whole value of its report is destroyed. The public look to the report of a Royal Commission, perhaps without looking at the evidence which supports the report, to say what has been the result of the investigation ; and if the fairdealing, honest reputation of the Commission is touched, the very root of its influence with the people is struck at and destroyed. We know that a Royal Commission, like a Judge, is supposed to be blindfold, and to hold the scales fairly, in order that justice may be done ; and if it is said that a Royal Commission has a moral twist, and the public believe it, the whole result of the investigation is discredited.
– That is the basis of all me honorable member’s objections?
– I am speaking generally ; it is the basis of my appeal to honorable members to see the possible effects of this measure. Somebody may use words accusing a Royal Commission of being partisan, and the Commission may decide upon a prosecution because the words destroy the value of their report. The Attorney-General has not made this an indictable offence, and thus an offender is disentitled to the privilege given by section 80 of the Constitution ; and the whole thing may be a matter of argument. We know very well the question of what is a partisan Commission, and whether certain acts upon which he relies for his allegations constitute partisanship, may be a matter of prolonged and tedious argument before a Court. Who would say that a man who uses words of that sort is not entitled to have counsel, if he is too poor to provide them for himself? And yet in this Bill there is no provision by which he can get counsel. There should be no distinction in this case between “offence” and “indictable offence.” To speak of an offence as indictable seems to invest it with more seriousness, but wherever a man is liable to go before a Court for something that he has done which he ought not to do with regard to a Royal Commission, and to be imprisoned for two years, the word “indictable” ought to be used, in order to give him the benefit of claiming to be tried by a jury, and claiming also the privileges under section 80 of the Constitution. I have nothing more to say with regard to the other clause which gives the Chairman of the Commission arbitrary power. I can only say that it is a very dangerous power, which no party in this House should tolerate, because the sides of the House change from time to time; and honorable members opposite should recollect that the time may come when, the parties being reversed, Royal Commissions may be appointed, with strong feelings on certain matters, to inquire into questions and institutions that seriously affect and interest them. This is a measure for all time, and it may cut both ways. Honorable members opposite should therefore exercise just the same caution with regard to this Bill, which has been admittedly framed to apply to one particular Commission, as they would if they were investing a Commission with authority to inquire into matters with which they were themselves intimately concerned.
– I wish to explain why I am voting for this Bill. Members on the other side accuse us on this side of having no idea of what the Bill really means, and of imposing penalties which amount to persecution, instead of penalties fitting the offences actually committed. The Royal Commissions that have been appointed have been for the purpose of eliciting information for the public good, and it certainly appears that up to the present they have not had the powers which it was thought they had. It has therefore been found necessary, in order to arm them with sufficient power to make their inquiries useful, and to insure the public good, to’ introduce this Bill. On that ground alone I feel that in voting for it I am voting for something which is in the public interest, but what has struck me as most remarkable is the strenuous opposition offered to it. If I had felt disposed not to vote for it, the extreme opposition shown to it by honorable members opposite, and their anxiety to tone it down, would have made me wonder greatly whether I was doing right or not. It certainly appears to me that there is something in the Bill which they are trying to defeat, something which they, or those connected with them, are afraid will interfere with some ramification of our commercial life. The greatest anxiety appears to have been shown regarding the clause which imposes a penalty for perjury, but perjury is one of the most serious crimes that any human being can commit, and in this Bill we make a strong effort to make the punishment so severe that if possible it will prevent perjury happening before a Royal Commission. I do not think there is a citizen in the Commonwealth who will not commend this Parliament for its anxiety to punish those who attempt to commit perjury. Perjury before a Royal Commission is quite as great an offence as perjury before a Court of law, and I do not understand why there has been such a stir about the imposition of severe punishment for it.
– It was a question of the persons by whom that punishment was to be administered or ordered.
– It must be remembered that, so far as inquiries by Royal Commissions are concerned, the commercial life of to-day is very different from that of the past, because there are nowadays so many secrets, so many combinations, and so many things done in commercial life to which those engaged in commerce in the early days would not have stooped. There are so many rebates and secret commissions given, which the public have no means of finding out, that it is necessary to have some power to bring them to light. Inquiries are being made to-day in New Zealand, while in America an inquiry has been going on for three or four years into the Sugar Trust. Honorable members on the opposite side seem to think that this Bill is directed against the Sugar Trust only,, but I assure them that I am not giving my vote for it only on that ground. I realize that other Commissions will have to make inquiries, and we cannot be too careful to see that those inquiries are properly made. We should all be anxious to give those Commissions power to make the persons concerned divulge everything which is detrimental to the public good. I hold that if in our commercial life the public are overcharged or fleeced in the matter of rebates or commissions, the offence is quite as bad as that of the criminal who attacks a man in the street. In fact, I do not know that the latter is not the much lesser criminal, because you have a chance of catching him, whereas the other fellow robs the public in such a manner that they have no means of detecting him, unless a Royal Commission elicits the information from him. Several honorable members opposite have been very anxious about those who are likely to be appointed as members of Royal Commissions. 1 suppose, however, that there is not a man or woman in the community, even including the Judges, who has not some political views. It is impossible to get a man to sit on a Royal Commission who has no political ideas o’f his own. I believe I could put down on paper the political views of nearly every Judge who sits on the Bench in New South Wales. I know, at any rate, which side the Chief Justice of Australia would vote for if I was standing for an electorate in which he was entitled to vote. I know that I should not get his vote, and I also know other Judges whose vote I would get.
– Order ! Will the honorable member confine himself to the matter before the Chair ?
– I made those remarks because of the allegation made by honorable members opposite that members of Royal Commissions might be biased. I guarantee that no Royal Commission could be appointed without people being able to find out on which side each member of it would vote. It would not take me long to get the information, at any rate. I desire to thank the honorable member for Angas, and the honorable member for Darling Downs, for the able manner in which they have debated the Bill, because their speeches have been a source of information to me, although I could not altogether agree with their views. I look on them as legal gentlemen, and I would point out that I regard it as a compliment to call a man a legal luminary or a legal gentleman as distinct from a lawyer. I therefore wish those two honorable members to take that as a compliment from me. A great deal of capital has been made out of clause 6 o, but I think it is a very wise provision. A person giving information before a Royal Commission ought to have some protection from scurrilous writers. I do not apply that to pressmen generally, because I have always found the average pressman a gentleman, and have always been able to get on with him. A witness who goes before a Commission, willing to give all the information he can, ought not to be attacked by anybody, and if he is attacked, the Court ought to have power to deal with the matter. It would be better, also, for the offender to be dealt with at the moment than for the case to drag on for months. I do not see the necessity of making it an indictable offence, as it is not serious enough, and to do so would entail a long, course of procedure.
– Surely two years is a very serious penalty.
– I never thought when elected to this House that I would see somany friends of the criminal class sitting on the opposite side of the House.
– The honorable member must withdraw that remark.
– I withdraw it. I did not mean to suggest that honorable members opposite were criminals, but on every Bill that has been brought forward, including the Land Tax Bill, in the last session or two, they have displayed a great desire tolessen the punishments imposed for offences!. I do not know why, because the evil-doer ought to be punished.
– We take the humane view.
– There is no sense in letting a man who knocks you down in the street go scot free. Why should not the man whorobs another take a humane view before hecommits the offence? If we were ashumane as honorable members opposite apparently advocate, no one would be able te* move about. It is only the fear of punishment that deters a certain class from crime. I am quite satisfied that in voting for this Bill I am casting a vote in the best interests of the community. One effect of it will be to make persons who go before Royal Commissions understand that they must tell the truth, the whole truth, and nothing but the truth. If we can inculcatethat into them, we shall do good work. I believe that some of those persons who today are perhaps being paid to hide secrets will be driven by the fear of punishment to tell the truth, and that the community at large will benefit by the disclosure of the f facts
Mr. W. ELLIOT JOHNSON (Lang> [3.54]. - No one will cavil at the concluding words of the honorable member for East Sydney. I think it is the desire of every member of the House, no matter which side he sits on, to see that Royal Commissions appointed to investigate matters of public importance have full power to complete their inquiries. Honorable members will equally desire that all those who give evidence before Commissions shall tell the truth, and shall not in any way try to mislead them, but when honorable members opposite attempt to ‘ arrogate to themselves - as a ‘ virtue exclusively their own-; - the desire to bring about those results’.
I think they will have great difficulty in persuading men of well-balanced minds to acknowledge the claim. It is our desire that Royal Commissions shall have their work conducted properly, that they shall be reasonably protected, and that adequate punishment shall be meted out to those who, when appearing before Royal Commissions, give false testimony, or try to flout the reasonable authority with which such Royal Commissions are invested. This Bill, however, proposes to do something more. Our objection to it is that it goes altogether too far - that in the endeavour to bring about that desirable result, the Bill seems to many of us to have been conceived from beginning to end in a spirit of vindictiveness and revenge.
– Order ! The honorable member has no right to make that statement.
– I did not say that it was conceived in that spirit, but that it appeared to some that honorable members opposite were imbued with such feelings in bringing forward and supporting the Bill. The Bill itself seems to suggest something of the kind, and the object of the Opposition has been to try to eliminate from it that suggestion by reducing the preposterous proposals that it contains to more reasonable limits. The penalties for which it provides constitute our chief ground of objection, for they are altogether out of proportion to the offences to which they relate. Penalties certainly ought to be sufficient to act as a deterrent, but there is a point beyond which a penalty becomes an injustice and a persecution. That is the view of the Opposition in regard to the penalties imposed by this Bill. We, as a Legislature, have a perfect right to see that penalties imposed by our laws are adequate for the purposes for which they are required, that they will be repressive in their tendency, and that they will not be so light as to encourage the belief that they will prove inadequate. Anything that goes beyond that point will always be identified in the public mind with injustice and persecution. During this debate some honorable members have rather gloried in the Bill because it is emanating from a party which is at present “on top,” the obvious inference being that they have some other fellow underneath at their mercy. We should not legislate in that spirit. In dealing with questions affecting the liberties of the subject, we ought to know no party. Our sole desire should be to mould our measure strictly on the lines of equity and justice. My own opinion is that this Bill far exceeds the limits of reasonableness and justice. There are some ridiculous discrepancies between the penalties for which it provides. For instance, it is provided that any attempt to induce a person called, or to be called, as a witness before a Royal Commission, to give false testimony, or to withhold true testimony, and any attempt to receive or obtain any profit or benefit of any kind upon an agreement or understanding that any person shall give false testimony, or withhold true testimony, when before a Royal Commission, shall be punishable by imprisonment for five years. Such an offence is made an indictable one, but in the very next clause a much smaller penalty is provided for what seems to me to be an equally culpable offence. It is declared that -
Any person who practices any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token, or writing to any person called or to be called as a witness before any Royal Commission with intent to affect the testimony of that person as a witness, shall be guilty of an offence.
And the penalty for that offence is two years’ imprisonment. I do not recognise such a difference in degree between these two types of offences as would justify this marked difference in the penalties. Then, again, provision is made for the punishment of any person using insulting language towards a Royal Commission. Who is to determine what is insulting language ? Any mere word of disparagement may be construed into an insult to a Royal Commission. t The personnel of a Commission may be such as to warrant any terms of disparagement being applied to it. Royal Commissions of that character have been, and may in future be, appointed ; but a person who speaks in terms of disapproval regarding such a Commission, or adversely criticises its personnel, may be held, under this Bill, to have used insulting language, and ordered to pay a fine of £100, or to undergo imprisonment for three months. Such a penalty is monstrous, having regard to the character of the offence to which it relates. Then, again, it is provided that any one who, in writing or in speech, uses words defamatory of a Royal Commission, or is in any manner guilty of contempt of a Royal Commission, shall be guilty of an offence and punished. We are all agreed that it is not only improper, but detestable, for any one to falsely speak or write defamatory words of a Royal Commission, or, indeed, of any body or individual. But the real object of this clause is to prevent reasonable and just criticism of a Royal Commission. Royal Commissions, like all other tribunals, so far as their methods of procedure, their composition, and their investigations generally are concerned, should be open to the fullest possible scrutiny, both as to their composition, and their conduct of inquiries, else tyranny, injustice, oppression, and other evils will surely develop within them. The fullest light and publicity should be given to all their proceedings. In that way alone can we insure for Royal Commissions, and other tribunals of a like character that are appointed from time to time, the respect to which they, if trustworthy and impartial, are entitled. Why we should hedge round Royal Commissions with all these unnecessary safeguards is to me inexplicable. The Bill itself, at all events, will not commend itself to the judgment of the unbiased public. Honorable members opposite, in claiming that honest and upright people have nothing to fear from such a measure, claim altogether too much. People may be honest and straightforward enough, and yet have reason to fear consequences arising from the revengeful spirit that such a measure fosters. The Bill clothes Royal Commissions with many powers to inflict hardship on individuals against whom an animus is directed. For these, as well as for other good reasons, the Opposition feel it to be their duty in the public interest to oppose it. I know that fair and reasonable criticism on the part of the Opposition will fall unheeded upon the ears of the Government and their supporters. They made up their minds probably before they entered the chamber as to the terms of the Bill, and what they should do with it. Honorable members opposite, Or some of them, at all events, have admitted more than once that arguments will not affect any votes. They are not here to listen to argument. They have had their arguments before entering the chamber, and they are here only to see the Bill pushed through.
– That is not true.
– Honorable members of the honorable gentleman’s party have said that it is.
– Order ! The honorable member must confine himself to the question.
– I say, sir, that criticism from this side of the House is likely to fall on deaf ears, so far as honorable members opposite are concerned, and for that reason I do not propose to continue my remarks any further.
– The honorable member is not justified in the action he has taken. Such observations are becoming too frequent. I ask the honorable member not to continue them.
– I take it that a deliberative body like this House decides that a Royal Commission shall be appointed for the distinct and definite purpose of obtaining reliable information for its use. I wish that there had been an Act of this character in force when I was Chairman of the Commission appointed to make an inquiry into the conduct of certain manufacturers in this and other States. The work of that Commission was defeated because of the stubbornness of one man. Although I had ascertained from the Crown Law Officers that the questions which I wished to ask were within the scope of the Commission, the Commissioners were deliberately flouted by a manufacturer who at first refused to appear before them, and afterwards, when he came, would not answer our questions. With powers such as those contained in the Bill, we could have obtained1 information which would have been useful to the country. It is useless to appoint Commissions without giving them all the powers required for their investigations. When a question is material to the subject-matter of an inquiry, there should be no concealment of the facts by a, witness.
– It is in regard to the penalties imposed that this debate has arisen.
– The members of a Commission will be men of sufficiently balanced minds to prevent injustice. The Commissioners in the case to which I have just referred were unanimously of the opinion that the questions which I wished to ask should be asked j but because of the behaviour of one witness our inquiry came to nothing, and the money spent on it was wasted. No Commission, however appointed, should be in such a position as that. With regard to the criticism of Commissions, I would, point out that the investigations conducted by these bodies are often as important as the cases in Courts of Law, and yet attempts are frequently made to prejudice the public mind against a Commission, or to influence the Commissioners to prejudge the matters into which they are inquiring. When a Commission is at work, there should be no unlicensed criticism. Leading articles endeavouring to discredit it should not be allowed.. Articles were published in regard to the Commission to which I have just referred which, in my opinion, should not have appeared, and would not have been tolerated had they dealt with even a small law case. Commissioners accept their responsibilities as do Judges. Men who would not do so would not be fit for the position. One of the problems of the future is to find out what it is that is increasing the cost of living; and unless Commissions have the power that it is’ proposed to give to them, it will be impossible to obtain the information necessary for legislation in the public interest.
– It does not follow that the information obtained should be published to all the world.
– In the investigation to which I have referred, evidence was tendered on the condition that it should be regarded as confidential ; but the members of a Royal Commission cannot accept evidence Of that kind, because it is necessary for them to support their conclusions by the published statements of witnesses. A Court can, and does frequently, sit in camera, but a Judge may use his own discretion, and is in a different position from a Royal Commission, whose report has to be discussed and dealt with, by another body of men requiring to know the grounds on which it is based. In my opinion, a Commission cannot achieve” any good purpose by accepting statements which cannot be made public. I feel confident that the powers given by the Bill will not be abused; but that, on the other hand, they will largely assist the work, of Royal Commissions, and will prevent the unfair criticism of public bodies which are honestly doing their duty.
– The honorable member would not forbid fair criticism.
– No. But there are often occasions when any criticism is unfair. Criticism is not fair when it deals with the merits of a case that is pending, and we often see prosecutions for contempt for statements relating to matters sub judice in the Courts of law. I am glad that Royal Commissions are to have greater powers. To’ ascertain the effect of the operations of trusts and combines in in creasing the cost of living, it is necessary to give these powers to Royal Commissions.
.- I do not think that a strong case has been made out in favour of legislation of this severe and drastic character, nor do I share the opinions of the last speaker. I was Chairman of a Commission inquiring into Tariff reform, whose labours extended over two years, and whose investigation was of a most comprehensive and intricate character, the questions asked numbering 100,000’. Notwithstanding that nearly 1,000 witnesses were examined, I do not think that more than one or two objected to or declined to answer questions, and the objections in every case were to having to disclose trade secrets. Witnesses were ready to give information to the Commission, but they did not wish that information published so as to put them at a disadvantage in competing with trade rivals in Australia or in other parts of the world.
– That is provided against.
– The publication of what are called trade secrets is provided against, and I am glad of it. It is not fair that business people should be required to make disclosures which may injure them in competing with rivals.
– Did witnesses give the cost of production?
– All the material for forming conclusions was placed before the Commission, but witnesses declared that they should not be required to answer questions as to how they made their profits, or what those profits were, though only a few witnesses went so far as that. The Commission in such cases obtained its information from other sources, and did not unnecessarily pry into the business secrets of individuals. If investigations are conducted with discretion, and without unnecessary aggressiveness, the information required can be obtained without the aid of the extraordinary powers provided in the Bill. I am afraid that this measure is the result of a personal quarrel, and not introduced to meet the real need for the alteration of the law. Had the Sugar Commission gone the right way to work, it could probably have obtained its information without appealing to Parliament. The Tariff Commission was composed of representatives of two political parties, equal in number,, who watched each other to prevent advantage being gained by either side in the kind of evidence secured. The result was to direct the searchlight of criticism into the inner re; cesses of commercial life in a manner that was perfectly successful.
– In a report signed by the honorable member, and dated 4th June, 1908, it is said that it is useless to proceed, because witnesses will not answer questions.
– That report refers to the procedure of Parliamentary Committees. Our Select Committees are not equipped with legal authority to administer oaths, or to direct prosecutions for refusing to answer questions. All they can do is to use antiquated machinery which would have the effect of putting offenders “ on the leads,” as punishment by the Legislative Assembly of Victoria used to be called. It was, therefore, recommended that the law should be altered to provide that if witnesses summoned to appear before Parliamentary Committees refused to answer questions, they might be prosecuted.
– Are not Royal Commissions to have as wide powers as Select Committees ?
– Royal Commissions have statutory authority to put questions, and if witnesses refuse to answer without reasonable cause, they may be prosecuted. That is the procedure which has been adopted by the Royal Commission on the Sugar Industry. But a parliamentary Select Committee has no such authority; and the Attorney-General, in this connexion, referred to a matter absolutely irrelevant to the Bill. And in that report it was not recommended that the House should summon a recalcitrant witness to the bar and have him committed for contempt ; it was thought that that antiquated procedure should be abandoned, and resort had to the ordinary process of law; in other words, that the witness should be prosecuted in a Police Court. Further, I point out that in that report it was distinctly recommended that a witness should be expected to answer only questions “ relevant to the issues involved.” These words were in the original Royal Commissions Bill.
– They were not in the Royal Commissions Act.
– Those words were in the original Bill, but were struck out in Committee on an assurance by the AttorneyGeneral that, if a witness refused to answer questions, he would be prosecuted, but that a defence would be that the questions were not relevant to the issue.
– Will the honorable member confine himself to the matter before us?
– No strong case has been made out for the proposed drastic changes, which really mean the creation of a form of political inquisition unknown to British law since the Star Chamber of the Stuarts. This is practically a revival of that old tribunal, where witnesses were subjected to the political thumb-screw and rack, and liable to all kinds of pains and penalties - an institution which formed one of the serious items in the indictment against the Stuarts. It is strange that in these democratic days of labour majorities we should have a Labour and democratic Ministry proposing to revive those ancient and obsolete methods. The power in a Commission to commit a person for contempt constitutes, in my opinion, the most serious blot on the whole scheme. A power to send a witness to prison for something done in the face of the Commission is undoubtedly a grave invasion of existing practices, and a most dangerous innovation. It makes the Chairman of a Royal Commission practically Judge of his own case. It is true that some of the superior Courts of the States and the High Court of Australia have power to commit for contempt which takes place in the face of the Court ; but that is what is called reserve power, and is becoming gradually obsolete as inconsistent with the spirit of the age. As indicated in a quotation read by the honorable member for Angas, the general tendency of modern times is in the direction of abandoning this ancient and savage weapon - this practice of permitting a man to be Judge in his own case. Even highly trained, well-balanced Judges must feel that a power to be exercised, it may be, when under a feeling of excitement, is to some extent a disqualification on them as judges of what constitutes contempt of Court ; and if it is considered objectionable that Judges should continue to be vested with such power, how much more objectionable must it be to vest it in the hands of, it may be, members of Parliament, or persons inexperienced in the exercise of judicial functions? It is quite possible that serious errors of judgment, and invasions and infractions of the liberty of the subject, may arise, with results most unexpected, even to those who are introducing and supporting this measure. It has been found, in the course of history, that the advocates of innovations have very often become the first victims and sufferers from a change of law they themselves were instrumental in introducing. We know that important changes made in the procedure of this House, and supported by honorable members opposite, were first brought into action and directed against themselves, much to their disgust, surprise, and dismay. Very often the unexpected happens; and it is quite possible that, when this legislation is first brought into force, and the first victims are im~ paled, there will be such an outcry as to astound even its most prominent and most eloquent supporters at the present time. I deny that these changes are required in the interests of efficiency. The law, in my opinion, is strong enough to obtain all the evidence required, with ordinary judicious management of the conduct of Royal Commissions. The Sugar Commission got on very well until it reached one particular stage or development; and then there arose a great hue and cry for a reform of the law. The response to that hue and cry is the Bill which has occupied our attention so long. There is no justification for this legislation, and there are very “strong grounds for believing that some of the provisions will prove to be an invasion of the judicial powers of the Commonwealth. It is proposed to invest in a. secular or commercial tribunal powers which “certainly come within the realm of judicial authority.
– - The arguments used against the Bill this evening fall in general under five heads. I will state these and briefly reply to them. It is said that this Bill is an invasion of the judicial powers of the Commonwealth; that it gives Royal Commissions greater powers over witnesses than does any other law relating to Royal Commissions; that Royal Commissions are given greater powers than is a Judge in his own Court; that witnesses have not the protection they enjoy in Courts of law; and that the powers under this measure can be exercised by partisan Commissions. Taking these in their order, I deny entirely that the Bill is an invasion of the judicial powers of the Commonwealth. The criticisms entirely ignore the purport of the Bill. This is a Bill clothing Royal Commissions, which can be appointed by Executive authority, with certain statutory powers to compel the attendance of wit nesses and the reply to questions. The exercise of those powers by such a tribunal is not an invasion of the judicial powers of the Commonwealth. In the case of Huddart Parker v. Moorhead, reported in Commonwealth Law Reports, 1909, and quoted in Professor Harrison Moore’s Commonwealth of Australia, second edition, page 3”-
The High Court held that the power of inquiry was not of itself judicial power ; that preliminary inquiries of this matter in relation to criminal offences had been held to be nonjudicial, even when conducted by justices of the peace. … In the words of Isaacs, J., the case was one of “ mere investigation, with a view to inform the mind of the Executive whether the law has or has not been observed, and if not, whether the nature of the contravention is such as to merit further action.”
That case was in relation to the refusal of a person to answer interrogatories put by the Comptroller of Customs; and the application of such powers to Royal Commissions is very much clearer. . An inquiry by Royal Commission’ is not in general an inquiry into a matter on which judicial proceedings may subsequently be initiated ; it is an inquiry to inform the Executive in regard to matters which may or may not form the basis of future legislation. There is nothing in this measure that in the slightest degree invades the judicial sphere. The power to arrest on warrant is not necessarily an exercise of the judicial power. Such a power may be exercised by this Parliament or by a Courtmartial ; and it can hardly be said that either of these is a judicial body. The power to commit for contempt is not necessarily a judicial power ; it is not a punitive power, but a protective power. In order that a Royal Commission may conduct itsinquiry effectively, it is necessary, in the first place, to secure the attendance of witnesses, and, in the second place, to secure order - to secure that the proceedings shall be conducted as the Commission think fit, and not as the witnesses determine. Power to commit for contempt in the face of the Court is, therefore, incidental to the exercise of the power of the Executive to make inquiry, about which power there is no sort of possible doubt.
It is urged by the honorable member for Parramatta and others that the Bill givesa Royal Commission greater power over witnesses than does any other law dealing with Royal Commissions. That is quite inaccurate.
– I think we ought to have a quorum to listen to this important speech. - [Quorum formed.]
– In the English Statutes 30-31. Vic, Chap. 8, I find an Act to clothe a Royal Commission appointed by the Executive with very extensive powers. I will enumerate them - “ The enforcing the attendance of witnesses,and examining them on oath, affirmation, or otherwise, the compelling
The production of documents, and
The punishing persons guilty of contempt.”
Power is also given to arrest upon warrant, and commit to prison. In short, the Commission was by that Act given power to exercise all orany of the powers of a Judge of a superior Court. That Act was passed on the 5th April, 1867. When, therefore, the honorable member for Parramatta said we were clothing this Commission with greater powers than ever a Commission had been clothed with before, he was probably unaware of the fact that forty-five years . ago an Act vesting in a Commission greater powers than these had been passed in Great Britain. He was also unaware that the honorable andlearned member for Bendigo had recommended the introduction into this House of legislation
-Order!The honorable member must not refer to that matter.
– Very well. I am not even allowed, it seems, to pass an epitaphic remark about it.
I come now to the third point, that the Commissioner has greater powers than a Judge. That is not in accordance with the facts. He has not greater powers than any Judge of a superior Court. He has power to commit for contempt in face of the Court. He cannot commit for contempt other than in the face of the Court, and every Judge of a superior Court has the power, which is given to the Chairman of the Royal Commission if he is a Judge.
It is said that this power may be exercised by a partisan Commission. It cannot be exercised by a partisan Commission. It can be exercised only by a Judge.
– He may be a member of a partisan Commission.
– He may not be. The honorable member, if he has any respect at all for the laws of this country - which I very much doubt - cannot say that a Judge is partisan.
– I did not suggest it.
– These powers can be exercised only by a Judge. The powers exercised by that Judge are the powers that may be exercised by him as a Judge of any superior Court of any State of the Commonwealth, or as a Judge ofthe High Court. He may commit for contempt in the face of the Court, that and no more; and I most respectfully protest against any statement that these powers may be exercised by a partisan Commission. I do not deny that human beings are liable to be influenced by political, religious, social, or many other kinds of bias, but we must assume that a Judge is, humanly speaking, free from bias, or as free from it as a human being can be. The Chairman of a Royal Commission can exercise these powers only if he is a Judge.Itwould be monstrous to suppose that he would not exercise them with the same care when sitting as a Royal Commissioner, that he would whensitting as a Judge in his own Court.
Again, it is said that witnesses haye not that protection which they have in Courts of law. That, again, is not in accordance with the facts. The witnesses have protection under the Act as it stands, in section 7. It is there laid down that they are to have all the, protection that a witness has in the High Court. That protection remains, and, in addition, they are protected under clause 4a of the Bill, which provides that refusal to answer a question not relevant to the inquiry shall be a complete defence to. a prosecution. Under clause 6d they are further protected, in that it is not compulsory for any witness before a Royal Commission to disclose to the Commission any secret process of manufacture. Under clause 6dd they are further protected to the extent that any statement or disclosure made by any witness shall not be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court, or any Court of any territory of the Commonwealth. It is, therefore, not true that a witness before a Royal Commission has not the protection that a witness has before any Court. He has all the protection that a witness has before the High Court, and he has additional protection conferred upon him by this Bill.
The rest of the statements made about the measure are really not relevant to it. They are directed more against the projected use of the measure than against the Bill itself. I have dealt with the main objections to the Bill, and it appears to me that the opposition to it is largely based on a misunderstanding of its scope and intention. The powers of the Royal Commission have not been extended by the measure except so far as to give to the Chairman, when he is a Judge, power to commit for open contempt in the face of the Court. The penalties for declining to answer questions have been made heavier - it was thought necessary that this should be done - but they are not heavier than circumstances warrant, and in every case it is left to the ordinary Courts of the country to impose them. Except for second and subsequent offences, nothing compels a magistrate or Judge to impose more than a nominal penalty, or whatever he thinks to be a fitting penalty. In the circumstances, it appears to me, since the measure is very urgently required, and the case is obvious
– Is not the judgment of the magistrate who has been appealed to in this regard due to-morrow?
– The honorable member is quite right. Since the Act as it stands is quite inadequate, I hope the amending Bill will be allowed to pass.
– I could not help appreciating the extraordinary gifts of the Attorney-General while watching him deliver the address to which we have just listened. After most earnestly studying him, I came to the conclusion that if I were put on my oath, I could not say that he did not believe all that he put before the House. We know that he really must know a little more about his own measure than dropped from his lips. We know that nothing is more egregiously absurd than to pretend that the powers vested by the Bill in the Chairman of a Royal Commission are not greater than those which vest in a Judge in a Court of law, as we know Courts of law in Australia and in the Mother Country to-day. He said, and he repeated himself, and looked as if he believed himself when he repeated himself, that the only power which a Judge had, sitting as Chairman of a Royal Commission, was to himself punish cases of open contempt in the face of the Court. Honorable members heard that statement repeated with apparent sincerity; but what is the fact? If honorable members will look at clause 6 o, they will see that any person who, by writing or speech - not in the Court - uses words false and defamatory of a Royal Commission, shall be guilty of an offence, and that if the Chairman of a Commission is a Judge, he may have all the powers of a Justice of the High Court sitting in open Court in relation to contempt committed in face of the Court, “except that any punishment inflicted shall not exceed the punishment provided by sub-section 1 of this section.”
– What have you to say to the words “ committed in face of the Court “ ?
– Will the honorable member, as a lawyer, tell me what the clause means? We have, as an all-embracing phrase, the reference to sub-section 1, which covers this question of external offences. Will the honorable member, with his wide practice of the law, tell us that a Court will not hold that sub-section 1, and not a mere technicality like “ in face of,” covers that clause? Here we have certain powers vested in a Royal Commission which do not exist as regards a Court of law. Criticism of a Court of law is perfectly legal, as we have recently had evidences.
– Not in the Court.
– No ; but this clause gives power to suppress criticism of the Commission outside the Commission.
– So it ought to be suppressed.
– If this power had been invested in the Conciliation and Arbitration Court of Australia, Mr. Justice Higgins’ action - I speak of it as his action, because he moved the High Court in the matter - against, I think, the Hobart Mercury would have been upheld by the Court. In that case, however, the High Court held that the power to criticise a Judge was a useful one, and ought to be upheld by the Judges themselves. In this Bill we are giving power to prevent criticism. What do the words “ false and defamatory of a Royal Commission “ mean? The very truth might be defamatory.
– There is no greater libel than the truth in some cases.
– As the honorable member for East Sydney so often exemplifies. If a Royal Commission, in the course of its labours, stultifies itself by making one statement on oath to-day, and another to the contrary on oath to-morrow, the mere recital of that extraordinary inconsistency would practically prove that it was a perjured Commission, and, consequently, although perfectly true, would be defamatory of the Commission. Thus the man who, in the future, speaks the truth about a Royal Commission - if the truth happens to be defamatory of it - can be imprisoned for three months, and ordered to pay a fine of£100.
– Not unless he “ speaks out of his turn.”
– I really desire my honorable friends to be quite serious about this clause. The outstanding feature of this Bill is that under it a man who tells the truth, when the truth requires most to be told, concerning a Royal Commission - that is to say, when the truth is defamatory - will be exposed to all the rigours of the law. In telling the truth of a Royal Commission, insuch circumstances, he would only be carrying out a public duty - he would be considering the public welfare - yet, becausethe truth was defamatory of that Royal Commission, he would be liable to imprisonment or to the payment of a heavy fine.
The humour of the Attorney-General was strained almost to Breaking point when he pleaded with honorable members not to say anything about the possibilities of a partisan Judge. Only a week or two ago - the honorable member for Perth will correct me if I am wrong - one of the Attorney-General’s own colleagues referred to partisan Justices upon the High Court Bench. Yet, now we have the Attorney-General coming here, and pleading with us not to imitate his colleague in our criticism, not of existing Judges, but of the possibilities of the future. I do not think that any member of the Opposition, in regard to questions of fact and the conduct of law, would indict the absolute partiality of His Majesty’s Judges in Australia. . I do not think that a member of the Opposition has ever done so or is likely to do so. But Royal Commissions invade questions of politics, and to say that a Judge acting as a Commissioner is some superhuman person, who is going to have no bias on questions of politics, is to strain our credulity nearly to breaking point.
– What about a. Chairman of a Royal Commission who is not a Judge?
– Under this Bill he will have the same powers as a Judge, except that he will not be able himself to impose the penalties. I am dealing only with the power to impose penalties, for which one of the clauses of this Bill provides - a clause which constitutes a most serious infringement upon the liberty to criticise that exists in Australia to-day.
Honorable members opposite, when they talk of Judges, whom they want themselves to be judging cases, speakwith bated breath, as if they were referring to an archangel of equity and justice. But do honorahle members recollect that only a year or two ago an attack was made upon a prominent man in New South Wales, on the ground that if he appointed himself to a Judgeship he would be degrading the Bench ?
– Because he knew no law.
– Perhaps not, if the honorable member says so; but we must not forget that it is always possible for an Attorney-General to appoint himself to the Bench. That has been done.
– In Queensland.
– And in South Australia. The Chairman of the existing Sugar Commission, for instance, appointed himself to the South Australian Bench. These things are possible. We cannot get over them, and when you ask the public to believe that Judges have invariably been chosen by. other persons having no personal interest in them, and chosen because of their extraordinary judicial capacity and capacity for fairness, you are making an absurd pro? position. On some few occasions Judges have been self-appointed. Men occupying in politics a position which places such appointments within their own gift have sometimes appointed themselves; and it is quite possible that a Judge in the future, exercising these arbitrary powers, may have been only a month or two previously in the fray of party politics.
– A Judge generally asks another Judge to deal with a matter in which he is personally interested.
– Is that so? Let us consider what will happen when an offence has been committed in the face of the Court, to use the phrase employed by the honorable member for Gippsland when he gave us his cock-sure rendering of that phrase in considering another part of the Bill. A man goes before a Royal Commission presided over by a Judge, who may be appointed in the future - a political Judge appointed for a political object, with the possibilities of reward. The Judge might get into absolute loggerheads with the witness. Do honorable members mean to say that, in such an event, he would refer to another Judge the punishment to be inflicted ? If the Chairman of the Commission happens not to be a Judge, then the question of punishment to be inflicted is to be referred to another person. That is the whole trouble. If some other person ‘ had to inquire into the matter judicially, and free from any of the warmth imparted into the proceedings by reason of the local storm in a teacup, we should get a fair judgment, and a fair judgment might possibly go against the Commission. But. under this clause, the Commission is going to give its own judgment concerning any matter offending against its own dignity in the very, comprehensive way for which the Bill provides. Any person who “ disturbs “ a Royal Commission may be punished for contempt. A person might disturb a Royal Commission by coughing ! Then, again, any person who interrupts the proceedings of a Royal Commission is to be liable. These are all questions of fact, and the determination of questions of fact ought to be referred to some person who has no particular interest in the “disturbance” that has taken place. Any person who uses insulting language or wilfully insults a Royal Commission should be stringently dealt with, but even in that case it is better that the punishment should be meted out by a Court of law, and not by what the Attorney-General properly described as a Court that has not, ordinarily speaking, the judicial power.
The honorable member said it was not proposed to invade the judicial power by clothing these Royal Commissions with the great powers for which this Bill provides. If Royal Commissions have not judicial powers, and that, of course, will be freely admitted, they should behaVe themselves with judicial decorum, and conduct ‘their inquiries on equitable lines. My principal complaint against this measure is that, whilst providing for the imposition of all sorts of penalties on any person who infringes the wishes of a Commission, or criticises its actions, it does not provide a single guarantee that Commissions are going to exercise their powers impartially, and to conduct their business equitably. The Attorney-General talked about the Bill merely giving Royal Commissions the same powers as a Judge has. Coming from a layman, such a statement would be regarded as absurd, but coming from the Attorney-General it is most regrettably disingenuous. If a Judge were to ask an accused person to submit himself to cross-examination before he had been allowed to state his case, there would be a howl of indignation from one end of the country to the other. Would that be a fair action for a Judge to take in any Court? Every one would say, “ Surely the accused has a right to state his case, and not merely to answer catch questions that may be put to him from time to time.” J believe that the common practice is for a Judge to allow the parties to a case before him to state their position before subjecting themselves to cross-examination. That is only fair. The trouble in connexion with the Royal Commission to which reference has been made has arisen largely because one party to the case desired to submit its case before it submitted itself to crossexamination. I desire, however, to leave that matter alone, and to deal only with the future. Now that Royal Commissions are to have these enormous powers, it ought to be laid down that we expect them ti) conduct their business on reasonable lines, so far as equity and fair treatment all round are concerned. It ought to be laid down that every party to a Commission - every person whose evidence is desired - shall be allowed to give his evidence in his own way before he submits himself to crossexamination.
– A witness in a Court of law cannot be cross-examined until he has given his evidence-in-chief.
– Exactly ; yet that is what happened in this recent Royal Commission case.
– That is only the honorable member’s view, and it is erroneous.
– Look at the facts.
– Order !
– I shall not refer to that case, because it is still sub judice. Indeed, my protest against this Bill, in the first place, was that it was introduced at a time when a matter of great importance in New South Wales was sub judice.
It certainly would be better if a Bill of this character were to provide for some such safeguards as I have suggested regarding the conduct of Commissions. Every witness should be permitted to make a statement of his own case before he is called upon to answer questions. I could, indeed, suggest a great number of safeguards in the direction of rules of court. We are now to have Royal Commissions clothed with greater powers than any Court of law, notwithstanding what the Attorney-General may say, and we need to be careful that they shall behave as reasonably and equitably as do the Courts of law existing to-day, and referred to in the Attorney-General’s speech.
The Attorney-General said that a Bill passed in England half a century ago gave greater powers than those for which this Bill provides. I speak from memory, but my impression is that that Bill reflated only to the appointment of one special Royal Commission, and that the moment that Commission made its report the Bill became inoperative. I think I am right in saying that practically every Royal Commission in England is appointed under a Bill giving it special powers, and providing for special duties. There may, of course, be exceptions. Here we are proposing to vest these powers in all Royal Commissions, and we have to remember that Royal Commissions are appointed by Executive action outside the control of this Parliament. Never have there been such powers as these conferred on Royal Com.missions generally, and the statement of the Opposition is absolutely and literally true when we remember the cheque we are drawing on the future in this regard. I do not wish to block the measure, and shall conclude by expressing regret that honorable members opposite think it advisable to place these plenary powers in the hands of Commissioners, not knowing who in future will be appointed, and without endeavouring to secure the proper conduct of investigations by such bodies.
– If we were to accept the doleful statements of honorable members opposite, we should pause before voting for the measure, but their arguments, repeated over and over again, seem ‘to amount to the position .that Parliament is lunatic, an.d that Commissions will do what is absurd. What are the facts? I .do not think that there will be any difference of opinion in the community as to the advisability of vesting in Royal Commissions the powers given by the Bill. By reason of our economic conditions, the rich in all countries are growing richer, and the poor in some countries are remaining poor, and in others becoming poorer, but everywhere large corporations are becoming tremendously wealthy. That is shown by the income tax returns in Great Britain, and by similar statistics available here.
– The honorable member must not introduce new matter.
– Parliament is confronted with the need for the investigation of this economic condition. There are open to us two courses : we may either follow the old lines, and pass shadowy legis lation, which would receive the support of honorable members opposite, and, while making a great stir, would have no effect, or we may precede legislation by an inquiry into the facts. This inquiry, unless it is to be farcical, must be effective. The question is : Shall the King’s Government be supreme in his Dominions over the sea, or shall the trusts be supreme? It is our duty to see that the King’s Government is supreme. We have our duty to the Australian people, and our duty to the King, in the upholding of constituted authority. In the past, Commissions have been unable to obtain the information which they were appointed to seek. We, on this side, may hold opinions that are wrong, but they can be proved to be wrong only by the ascertainment of the actual facts of the case These facts can be ascertained only by exhaustive investigation, and the Commission* appointed to make these investigations must be given all the powers necessary to do their work effectively. The advisability of vesting in Commissions the powers given by the Bill is not a matter for academic discussion; it is a practical consideration. We must either let the people see that we are trifling with a serious question, or show that we are prepared to deal with it seriously, by insisting on obtaining information which will enable us to legislate in accordance with facts, and not merely on ex parte statements. Probably the High Court, when appealed to, will declare the Bill to be unconstitutional, its object being, apparently, to declare unconstitutional every measure likely to be of benefit to the community. I shall, of course, be disappointed if the Bill is. declared to be unconstitutional. If the Bill is within our power of legislation, one result will be that fewer Commissions will be appointed, and such as are appointed will consist of carefully selected men, and be instructed to investigate matters of the greatest importance. At the present time, there are on the noticepaper two or three proposals for the appointment of Royal Commissions. Every honorable member who would like to have information on some question brings forward a proposal for the appointment of a Royal Commission.
– This Government has set in motion a good many investigations by Royal Commissions.
– Not half so many as have been asked for. In future, whatever Government is in power will see that Commissions are not appointed except for investigations of great importance. In reply to what has been said about interference with free criticism, I say that there should be the right to criticise.
– Then why take it away ?
– It is not taken away, but a curb is put upon licence. .
– One thing cannot be done without the other.
– I do not accept that statement. It has been argued that men may utter gross slanders believing them to be true ; but we must get rid of the mon strous idea that the distinction between right and wrong can be whittled away, Does not every man know whether his state ments are abusive or slanderous, and whether they are legitimate criticism? Has not every newspaper writer that knowledge? We are painfully aware that the newspaper press of to-day is not like that of thirty years ago, when newspapers were started by men in advocacy of principles which they held, and for the enlightenment of their fellow countrymen. To-day the press is a mere capitalistic money-making organization, just as a picture show company is, and we no longer have fair criticism. I am not reflecting on the literary men of Australia, who are as honorable and upright a body as we have in our midst. It is those who sit in the editors’ chairs, and those who determine the lines on which the newspapers are to be run, who are to blame. If a newspaper deliberately and maliciously attempts to bring into contempt a Royal Commission, the proprietor and the writer of the article should be fined, and if they are sent to gaol the world will be none the worse. Nothing is to be gained by unrestrained licence, and the promulgation of scandal Why should a public man, or a group of public men, who are honestly doing their duty, be held up to ridicule, scorn, and contempt? A Parliament that has not enough grit to protect Royal Commissions and to give them the powers necessary for the proper performance of their work is not worth its salt, and the country cannot expect to be benefited by its legislation. I do not disguise the fact that strong measures are being proposed, but the times demand them. Here, as in the Mother Land, :t is the Government of the day that is responsible for the appointment of Royal Commissions, and when such bodies are created, a majority of the members hold views in accordance with those of the Government, which is quite right. If, in the future, any Commission uses its powerswrongly, that will injure the Government that appointed it, and will produce reaction. Therefore, every Government will be very careful to select men in whom they can place confidence, and to appoint Commissions’ only for the investigation of important subjects. I shall have great pleasure in voting for the third reading.
.- The fact that the honorable member for Hindmarsh has had to indulge in a good deal of special pleading, and for the greater part of his speech got as far away from his subject as he could, is evidence that there is not the strong justification for the Bill that he claimed for it. As a rule, the honorable member keeps close to his subject, and he has generally something to say that is worth listening to; but on this occasion he has treated us to a kind of speech that serves when delivered from the public platform, but is not taken seriously in this chamber. He has told us that the poor are being exploited to an increasing degree by capitalistic combines, and wishes it to be understood that the measure is necessary to protect them ; and, further, that the opposition to it arises from disinclination to give the protection that is necessary: One would think that Royal Commissions had been brought into existence only within the last year or two, and that they have been quite unable to perform any effective work. As a matter of fact, we have had Royal Commissions in Australia doing very good work in all directions for very many years. It is only recently, and in connexion with only one Commission, that any complaint has been made as to the inadequacy of the power vested in such bodies. Honorable members opposite must feel in their hearts that the appointment of that Commission was not so happy in all respects as it “might have been, and that, had the constitution of it been otherwise, the difficulty that is now sought to be provided for by the Bill might never have arisen. I had the honour to occupy a seat on a Commission that did some very strenuous work, covered a very considerable amount of ground, and met with a good deal of opposition; and at no time in the whole history of that Commission were we brought to a dead stop, or anything like it, by reason of our lack of power to deal with witnesses more or less recalcitrant The Chairman of that Royal Commission, the honorable member for Bendigo, has stated that, so far as his experience went, 4 there was no difficulty whatever; and, as one who sat on the opposite side in connexion with the issue we had to investigate, I have very great pleasure in giving the same testimony. Members of the Free Trade section of that Royal Commission had, undoubtedly, a very arduous task when handling some witnesses ; but we were never at a loss to obtain all the information necessary, and we found, as a rule, that where witnesses were shown that the information asked for was reasonable, and that we had power, under the existing law, to compel them to answer, there was no further trouble. The honorable member for Grey spoke of a difficulty that he had as Chairman of the Harvester Commission. It was always a surprise to me that that Commission was constituted, seeing that the Tariff Commission had anticipated practically all the work done by the Harvester Commission.
– The honorable member is now going beyond the question before us.
– I only refer to it incidentally, in relation to the point raised by the honorable member for Grey. I do not intend to enter into details, but merely to say that, so far as our work was concerned, in endeavouring to arrive at some conclusion with regard to the cost of harvesters, their distribution, and the profit on them, we got all the information that was necessary; and the reports issued by both sections of the Tariff Commission are evidence of that fact. I have not yet heard any real justification for this measure. There has been a good deal of special pleading, but it has not yet been shown by the Attorney-General, or any of those sitting behind him, that the powers vested in Royal Commissions up to the present time have been insufficient to meet all cases that have arisen. In the absence of such evidence, I must continue my opposition to the measure, which I regard as utterly out of harmony with the spirit of the age. It is quite uncalled for in regard to the present necessities of any Royal Commissions, which have other methods of asserting their power, so long as they keep within reasonable bounds. ‘ Finally, I have not the least fear but that the public, in their turn, will indicate, with that spirit of fair play always evinced in these matters, that they are satisfied that we are going too far, with legislation of this kind.
.- I have had experience of two Royal Com missions, and it exactly tallies with that of the honorable ^member for Grey. I was a member of the Royal Commission appointed to inquire into the question of sweating ; and, surely, in such a matter, we ought to have been able to get all questions answered. As the honorable member for Grey pointed out, a Royal Commission cannot really take any evidence in secrecy, because a report has to be made to the power that creates the Commission. In the case of the Sweating Commission we broke through that rule in order to save certain families from ill-usage. If we could have obtained answers to our questions we should have been saved the trouble and distress of sending those families, one to Sydney, another to Ballarat, and a third to Bendigo, to evade the power of the manufacturers of this city. Of course, in the report of the Commission that fact could not be mentioned ; and here I may say, in loyalty to the press, that whatever good was done by the appointment of that Commission, was due not to the power we had of asking questions, but to the assistance of the newspapers. One does not wonder at the honorable member for Bendigo, with his legal training for so many years, taking his present action. That honorable member, however, spoke of the thumb-screw and the rack; and I ask him what greater rack could there be than to be kept in the witness-box’ for a month ?
– The honorable member must not deal with that matter.
– May I not, in reply to the thumb-screw-and-rack argument, mention the worst punishment given to one witness, of being held for one month in the witness-box? If I am breaking the rules of the House, I shall, of course, Mr. Speaker, obey your directions, but I think I am in order in pointing out that one experience is nearly as bad as the other. I merely desire to show that, if there had been such power as is proposed by this Bill, this witness need not have been detained so long. Who are those who refuse to answer questions? They are people who refuse to answer because of certain designs of their own. We know that the power of the Commonwealth can stop the importation of adulterated foods for children, but it cannot stop the adulteration of such foods in the several States. Honorable members opposite, who intend to vote against the Bill, know that if a Royal Commission were appointed to inquire into that matter, and the names of the people who adulterate the foods were made known, they would have the contempt and contumely of every member of the public. The other Royal Commission of which I was privileged to be a member, was one of which the honorable member for Laanecoorie was aware. I was the Chairman of the Royal Commission appointed to inquire into the question of the Melbourne tramways; and had we had the power we should have had, to ask questions, there would not be the present trouble over the wearing of a bit of metal scarcely thicker than that to be found on my watch chain. But that Royal Commission was trammelled, and such pressure was brought to bear that actually some of the Commissioners withdrew, leaving a bare quorum to carry on the work. I feel sure that the honorable member for Bendigo would not dare to defend in public meetings outside^ his utterances against this Bill ; at any rate, I should only be too glad to have the opportunity to debate the question with him ; because, if ‘ I am any judge of humanity, the verdict would go against him..’ Is it any wonder that a great jurist of America said that-‘ for ‘ the betrayal of a great cause, or the destruction of the country - and, I add, for the prevention of proper knowledge being given to the people - we have not to go’ far to seek the agent, because it can be found in every lawyer we come across.’ Speeches from legal members opposite have taken up most of the time, occasionally sandwiched with a speech from a layman. But some day we may have legislation, of which this Bill may be the foundation, that will prevent lawyers appearing in certain Courts of law. There is such legislation in Donmark, where no lawyer is allowed to appear in the first Court in civil cases, and even in the higher Court, they are only, allowed to argue on the evidence, not being permitted to introduce fresh evidence. - Any honorable member who would like more information on that matter will find it ‘in a report of a Royal Commission, of which Mr. Justice Higgins was Chairman, appointed to inquire into the cheapening of legal charges. If honorable members desire to study the question still further they will find it dealt with in Gronlund’s Cooperative Commonwealth. I shall glory in this Bill being carried if it rids us of the absurdity of the present methods. I cannot understand even legal honorable members opposite voting against the Bill to make men’ answer questions before a “Royal Com- mission. Surely it cannot be for love « of their profession that they wish tosend cases on to a stipendary magistrate, thus occupying weeks, at great cost to the country, and possibly to the individuals? I take it that honorable members who vote against the Bill desire the present arrangements to continue. If so, then a certain case that I do not wish to mention, will continue to proceed as in the past, and the people will realize that those who vote against this Bill desire to maintain the present ridiculous parody on justice.
.-! do not like this Bill to pass without registering my protest against one or two of its provisions. I have not the slightest objection to, nor would I ever hold my support from, any measure to get all information before a’ Royal Commission that is necessary in the interests of the people as a whole ; and in saying that I think I- have every member of the Opposition with me. So far as I understand the legal argument on- this side of the House, there has not been .a single word said against the position> I have. just indicated. The objections to the- Bill are, really based on the fact that it represents not one, but several inroads on that which we have always regarded as the most sacred thing that this Parliament has to protect, namely, the freedom of ‘the individual. ‘ I desire particularly to refer to proposed section 6 o. The whole of the arguments this afternoon fromhonorable members opposite have been based on the assumption that a Royal Commission is a Court in the sense that a judicial tribunal is a Court - on the assumption that the two are to all intents and purposes on the same footing, and should be treated in exactly’ the same way. As a matter of fact they are not the ‘ same. When it is a Court of law, criminal or civil,, it is simply a question of right and wrong, and of the witnesses giving evidence as tq the facts with which they are acquainted. But Royal Commissions deal with widely diverse subjects, on which people are entitled to hold, and do hold, very different’ opinions. It is not a question of right and wrong, and often it is not a question of fact. It is frequently a question of people’s opinions, which are based upon a great many different considerations, but in which they thoroughly believe. The composition of these tribunals varies just as widely. We all know something about legal tribunals, but, as the honorable member for Hindmarsh pointed out, a Royal Commission is appointed by a Government, and the Government always take care to appoint on it a majority who hold their views, and who will bring ‘ in a finding based, not always on the evidence, but upon their preconceived notions. That is one reason above all others why a Royal Commission should be exposed to the fullest and fiercest light of public criticism. A Commission is always composed of partisans on one side or the other, and always has a majority of partisans on the side responsible for its appointment. No Government and no public man should be free from the fullest and freest public criticism. There is always the law of libel to prevent the critic overstepping the limits of what a Judge and jury think fair. The Bill says that any person who “ by writing or speech uses words false and defamatory of a Royal Commission,” shall be guilty of an offence. Nothing is a greater libel in the eyes of the law than the truth, if you do not happen to be in a position to prove it.
– You have no right to make a statement you cannot prove.
– I know one or two things which are perfectly true, but I am not in a position to prove them in a Court of law. If I were to say them in a public street about one or two men I know, J should be immediately sued for libel and cast in damages.
– And serve you right, too.
– The honorable member has proved my point. I know that these things are true, but I am not in a position to prove them. Similarly, there may be things which the public know are absolutely “true about a Royal Commission, but which they are not in a position to prove. If a :man states them, although they are absolutely true, he immediately becomes liable under this clause. That is a position in -which no public body of men should be entrenched. I am certain that to protect “Royal Commissions in that way is opposed to the public interest/ The clause goes on -to say, “or is in any manner guilty of any wilful contempt of a Royal Commission.” What is wilful contempt? Apparently, it -is not a question of whether a statement is true or not. I have seen a Commission appointed for which I had a very great contempt. It is possible that another Commission may be appointed for which I should Shave an equal contempt.
– And for which the general body of the people may have the utmost respect.
– That does not matter. If I see a number’ of partisans appointed as a Commission, and have a supreme contempt for them - I do not say personally, but in regard to matters of public importance - surely I have a right to say so freely so long as 1 do not libel them ?
– What do )’ou call a partisan ? Is not a Judge a partisan ?
– No; I believe, as a rule, Judges are very free from party bias. When sitting on the bench, a Judge is enabled, by his long training, to take the for and against in regard to a question without any party bias, weigh them in the balance of his mind, and come to a judicial decision upon them. The average member of Parliament, or the average man in the street, is not in that position. He has strongly formed opinions, and, as a rule, sticks to them through thick and thin. A statement made about a Royal Commission may be absolutely true, and it may be to the public interest that people should know it; but if any one makes it in the press, and it is defamatory of the Commission, and he is not in a position to prove that it is true, proceedings can be taken against him for either fine or imprisonment. Such , a -provision is altogether a new departure. It is opposed to. everything that we have always believed to be best in public life in the British Empire, and I am sure it will have anything but a good effect in regard to these public inquiries -in Australia. Moreover, if I “say anything in contempt of a Commission, although it may be perfectly true, it can be regarded as wilful contempt, and, again, .1 should come under the operation of this clause. I wish to place on record my bpposition to this part of the Bill; and I hope it will not be long before a Parliament will meet here which will expunge from our statute-book that which I believe to be a blot upon it.
– After the challenge of the honorable member for Melbourne, I feel it necessary to speak. The honorable member said that every member of the Opposition who votes against the third reading of this Bill will vote in favour of the continuation of what he describes as the existing bad state of things. I wish to disclaim any desire to relieve any citizen of the Commonwealth of the responsibility; which I believe to be part of his citizenship, to do all things that are necessary for the welfare of the people. Any man who is called upon to give evidence in a Court, or before a Royal Commission, is, in my opinion, bound to answer every question “which it is necessary to put for the benefit of the people. No man should be allowed to escape his responsibility in that regard. I hope, therefore, that, in my case, it will not be asserted that I desire either to shield those who have failed in their duty, or to perpetuate a system whereby Parliament and the people have been deprived of information which is thought necessary in the interests of the people generally.
– You remember that Sweating Commission? We could not get answers there, and we had to save those poor people.
– I quite agree with what the honorable member has said in that regard. It is not the matter of deriving information that I look upon as the inherent blot upon this measure; it is the enormous powers which the AttorneyGeneral and those supporting him seem prepared to give to a body which may or may not be composed of elements likely to tend to the benefit of the public. I agree with what the honorable member for Hindmarsh has said. Every Commission that I can recall to mind as having been appointed by a Government during my experience, extending over something like nineteen years, has been composed of such elements as would secure a finding in the direction in which the Government desired that a finding should be made. I do not say that this Government is alone in that regard ; all Governments are responsible for the same sort of thing. There was a time in the history of the British Empire when Royal Commissions were looked upon as being entirely non-partisan in character - when men were selected to act as Commissioners because of their peculiar fitness to discharge the very important duty of acquiring firsthand the information which a Government or Parliament desired ‘to obtain.
– When was that - during Queen Anne’s reign?
– I am not going to take my honorable friend as far back as that ; but I certainly agree with the statement he made, and with which the honorable member for Richmond has also concurred. .During the whole of his somewhat strenuous public life, the Attorney-General has been regarded as one of the most energetic fighters for liberty and freedom that we have in Australia, and it is startling to find him prepared to hedge about a partisan body with such tremendous powers and immunities as he proposes to confer on all future Royal Commissions. What_ is the necessity for this proposal? Where has arisen the urgency for shielding from criticism the delicate feelings of Royal Commissions in the way this Bill provides? Of what remarkable fibre are members of Royal Commissions composed that the barrier now sought to be raised should be placed between them and that public criticism which is held to be the right of every citizen of a free country? Why should Royal Commissions be placed in such a sacrosanct position ? If there is one thing more than another-
– Why should they be shielded against healthy criticism?
– If there is one thing more than another to which we must ascribe the health, vigour, and virility of public life of Australia, it is the very criticism to which men in public positions have been subjected. The very fact that criticism is free to all is one of the greatest guarantees that it will be fair. Honorable members will agree that at no time - even going back to the period to which the honorable member for >Hindmarsh referred just now - has the institution of heavy penalties proved a deterrent against healthy criticism.
– We are reaping the fruit of a better press than we have today.
– I do not know to what newspapers the honorable member confines his attention, but the press of Australia is one of which the whole civilized world might well be proud. We have exceptions, but I am thankful to say that there is no other English-speaking country where the press occupies, and deservedly occupies, such a high position as it does in Australia.
– That is true, and yet some newspapers are -bad enough.
– I do not say that they are incapable of improvement. Many of us have at times writhed under criticism. I have sometimes felt that to be in public life a man requires to have no sensitiveness - that a public man should not read the newspapers, or that, if he does, he should be enveloped in an eiderdown-like cloak of self esteem through which no cold breeze of criticism could penetrate. Notwithstanding that, I believe that fair criticism is a right to which we ought to cling with the greatest tenacity. We should not foe prepared to give any body of ordinary human beings absolute immunity from criticism.
– Does this Bill prevent fair criticism ?
– I think it does.
– It -provides only against criticism that is ‘.’ false and defamatory.”
– Neither the time at my disposal, nor my physical condition, will permit of my entering upon a disquisition on the meaning of the words “ false and defamatory.” We know, however, that the Courts have spent hours, and that the purses of many citizens have been depleted, in attempts to define the very words which the honorable member has just used. The very existence of such a phrase in the Bill is an invitation to cover reams of paper in showing the remarkably fine distinctions that exist in some minds, judicial and otherwise, as to the meaning that should rightly be given to it. I look upon this measure as another evidence of the anxiety on the part of some people to manufacture misdemeanours and crimes. We ‘ are going to have here a number of new pitfalls placed before the feet of the unwary - pitfalls which, while causing them a great deal of tribulation, will secure for them a great deal of commiseration on the part of a discerning and sympathetic public. 1 urge the Attorney-General to take into account the unanimous desire of honorable members that we should have some means of obtaining the information ito which we think we are entitled - that we should have some means of compelling those who, in the past, have been able to :snap their fingers at these tribunals of the people to give evidence, while, at the same time, shearing this Bill of the redundancies which undoubtedly make it unacceptable to many who really desire to help the Minister to the fullest extent possible in that direction. Does he really believe that the imposition of these penalties for the crimes and misdemeanours set out in the Bill will take him one step towards the ob,ject which he has in view - the object which “honorable members on both sides have announced that they are anxious to assist him’ :in reaching? I am satisfied, and I speak : as. one who has had experience on Royal
Commissions, that members of such bodies do not desire that the attainment of such an object shall be accompanied by these conditions - conditions which ought not to be engrafted on an Act of Parliament. The Attorney-General did not give any instance of complaint on the part of a Royal Commission against the criticism to which its members had been subjected. Most members of Royal Commissions are public men, and most of them, long before acting on such bodies, were subject to criticism. I do not suggest that they have become hardened, to public criticism, but they have become to some extent qualified to judge of the value of such criticism. They know, also, how it is regarded by the larger section of a discriminating public.
– We ‘may have men outside Parliament acting on Royal Commissions.
– Quite so. I do not know, however, that members of any Royal Commission have asked that they should have the tremendous immunities which are to be given to all Royal Commissions in the future if this Bill becomes law. The Attorney-General may not be in a position in a year or two to set up Royal Commissions. Others will come after him - others who, according to his political views, are utterly unfit, not only to appoint Royal Commissions, but to discharge the most unimportant functions 6f Government. He is going, however, to give those men the same powers that he asks in respect of Commissions appointed by his own Government. I ask him to pause before he loads a most valuable and admittedly necessary measure with a redundancy that might very well be removed, and without which the Bill would be more acceptable, not only to honorable members generally, but to. those citizens of Australia, who, in the future, may be placed upon Royal Commissions for the purpose of obtaining information which the Government or the Parliament desire to have placed at the disposal of the people.
.-Ithink we must all admit that a great and valuable work has been done by Royal’ Commissions appointed to obtain information to guide us in our legislative and administrative work, and I trust that that will always be our experience. Several Royal Commissions with whose work I am familiar have made public most valuable information very necessary to enable us to deal, with some of the larger subjects that have come before this Parliament. As to the remarks made by the honorable member for Laanecoorie regarding the criticism of Royal Commissions, I have never been able to understand why men in public life - men holding high and responsible positions in the service of the public - should shrink from criticism of their public acts. Men who hold public positions appear to me to show a want of manliness when they are afraid of the straight-out criticism of their fellow citizens or of the public press. The honorable member for Hindmarsh asked, in most dramatic fashion, whether the King’s Government or trusts are to be supreme in this country, and said that it was the duty of Parliament to see that constituted government is upheld. I hope that he and others will bear that in mind in connexion with other things besides Royal Commissions. A large section of the community might well take the statement to heart.
– Is the honorable member referring to the Wollongong miners ?
– I do not see the relevance of the interjection.
– To whom is the honorable member referring?
– I am speaking generally, but in view of the events of the last six months, it seems to me that, if the honorable member and others of his party choose to apply my remarks, they will find that the cap fits fairly well. We were told by the honorable member for Hindmarsh that in the Old Country it is the invariable practice of the Government to see that a majority of the members of a Royal Commission hold views in accordance with the Government policy. If’ that is so, these Commissions are all partisan bodies, and if, in the future, our Commissions are to be appointed upon the same considerations, they “will be partisan bodies, and it will be the more necessary that their proceedings shall be open to straightforward and’ honest criticism. The Tariff Commission, of which I was a member, was criticised by the press, day after day, and -month after month. I understand that its Chairman - the honorable member for Bendigo - has in-‘ formed the House that, in the conduct of its investigations, it did riot feel the need’ of the extreme powers which will be given’ by this Bill. ‘ He represented the Protectionists on the Commission, while I was a Free Trade representative, and therefore in opposition to him, but I unhesitatingly in- 1 dorse his statement, as ! think the honor-‘ able member for Capricornia, who was also> a member of the Commission, will do.
– In that instance, every witness coming before the Commission! wished to put his case before it in order toget something.
– As a Free Trader, I was opposed to many of the claims that were made, and it was contended, day after day, by the Melbourne Age, that those asking; for big concessions were not getting from, the Free Trade members of the Commission the consideration to which they were entitled.
– But they could not be prevented from giving information.
– We did not wish to prevent them. Though under crossexamination witnesses were often reluctant to answer questions, the Commission was in every instance able to get the information for which it asked. I have also sat on two other Commissions - the Iron Bonus Commission and the Harvester Commission. I knowthat the Iron Bonus Commission got all theevidence that it asked for, and so, I believe, did the Harvester Commission, although I did not remain a member of it until it drew up its report. On reading the report, however, I saw no evidence that it was prevented! from ‘ obtaining the information that it: needed.
– A number of witnesses-. positively refused to give information on almost important point.
– I think that there was* a case of that kind in Western Australia.
– And in Melbourne, too.
– But in the end the Commission got all the information it needed. My objection to the Bill is that it has beenintroduced to meet a special case, to deal’’ with the position created by the investigation of the Sugar Commission. I am at aloss to understand why the Chairman of thatCommission refused to accept the statement - which has caused-
– The honorable member must not discuss that matter.
– Royal Commissions-“ have been, and will be,’ variously constituted. Sometimes the Chairman is a Judge, and”’” has had legal training, and there might be - no harm in intrusting such a man with the- powers given under the Bill. But iri most - cases the Chairmen are laymen, unskilled :n the conduct of public investigations, and;”’ not possessed of the training necessary to-~ safeguard the proper exercise of these tremendous powers. The experience of centuries teaches that legislation in special cases is the worst that Parliament can pass.
– It is unusual to hold up a Bill at the third-reading stage.
– It may be unusual to discuss the motion for the third reading, but the drastic nature of the powers which the Bill will confer on Royal Commissions, and the fact that it has been introduced to meet a special case, justifies me in availing myself of my right to enter this protest against its passing, and in offering such opposition as I can to it. This Government has not been backward in appointing Commissions; several are sitting at the present time. There is, for instance, the Fruit Commission. We know the valuable qualities of the Chairman of that Commission-
– The honorable member may not discuss that question.
– I was about to point out that the Chairmen of most of the Commissions now sitting have not received legal training, and that, in the future, Commissions will probably have as Chairmen men who are laymen ; and to assert that it would not be wise, or other than detrimental to the community, to give to such persons the powers which the Bill will vest in them.
– I desire, with other honorable members on this side, to briefly protest against the passage of this Bill in its present drastic form. The reason which actuates the Opposition may readily be gathered by a very cursory glance at the terms of the Bill. First, it transgresses well-recognised parliamentary procedure. Nothing is more dangerous than that Parliament should pass a Bill of a general character, based on immediate circumstances or an immediate hard case. “ Hard cases make bad laws “ ; and when we attempt legislation of a general character with our eyes fixed on what is transpiring in connexion with a special case, and certain exigencies which may have arisen in regard to that case, we are taking a dangerous path, which, in the present instance, I am sure we shall have to retrace. Nothing is better laid down in parliamentary procedure than the unwisdom of attempting general legislation under such circumstances ; the vision is limited, and harder cases will necessarily arise as a result. The Bill transgresses other features of parliamentary procedure. We always avoid, as far as possible, dealing with cases which are sub judice. It is re cognised that legal procedure takes place on the law as it stands; and if Parliament legislates with a view to a special case, when one side has not been fully heard, it is wittingly or unwittingly doing injustice to some subject. There is a further objection of a general and fundamental character. We are creating by this Bill cast-iron machinery to be applied in cast-iron fashion to every Royal Commission, no matter what may be its nature, scope, or function, lt has been shown in the course of the debate that, in its wisdom, a Legislature of wider powers and greater prestige than our own has found it necessary to deal with individual Royal Commissions by individual Acts of Parliament. Here, however, we have an Act of Parliament in an extreme form, which is designed to meet the conditions of every Royal Commission which may hereafter be appointed.
Sitting suspended from 6.30 to 7.45 p.m.
– T am asked to mention, out of respect to the Chair, that the honorable member for Kooyong has been sent for suddenly, and is, therefore, unable to continue his speech. Personally, I do not wish this measure to pass its final stage without making a few remarks, although it has been very exhaustively debated, and it is unlikely that anything I can say will have much effect on my friends opposite.
– There is not much fresh ground to be broken.
– The honorable member knows that if a field be ploughed twice, instead of being run over only once with a harrow, there is likelihood of a better crop. The first point that strikes me is that this Bill is a little premature. Of course, the somewhat difficult position that arose in Sydney a few weeks ago obviously accounts for this measure; but it would have been only fair to allow some little time in order to ascertain whether the present law is sufficient. That case is still before a judicial tribunal ; but it is understood that a decision will be given in a few days, when the law will be settled.
– There will be an appeal - delay is the “ game.”
– I think we could well afford to wait even six months to ascertain what the law really is before introducing a drastic measure of this sort. If there is _ sufficient power given to Royal Commissions under the present Act, the Legislature ought not to be kept busy over this Bill when there is so much more important business awaiting. My particular objection is to proposed section 6j, which provides that any person who practises fraud or deceit, or knowingly makes or exhibits any false statement, representation, and so forth, shall be guilty of an offence, and may be imprisoned for two years by a police magistrate. According to British law, a person is always presumed to be innocent until he is proved guilty, and nothing should be done to imperil that safeguard. In the past the British race have striven very hard for freedom, and we now reap the benefits of that struggle. I have no objection to the punishment of any citizen who commits the offences mentioned here; but I am afraid that, if the clause is not amended, an innocent man may be tried for his liberty. We all value our liberty very much, even honorable members opposite - what liberty they have left. If a man is to be tried for an offence involving imprisonment for two years, he ought to be tried, or have the option of being tried, before a jury. We know that the Labour party in New South Wales have been liberating a number of people who were in gaol for serious offences.
– They should not have been there.
– At any rate if they should be in gaol, they have an idea that their friends in Parliament will let them out.
– The Labour party in New South Wales are only doing as the other party did.
– I do not recollect any partiality of this kind being shown by the other party.
– The honorable member must confine himself to the question.
– The interjections drew me off the track. As I was saying, a man may be brought before a magistrate, and be sentenced to two years’ imprisonment without any redress; and I do not’ think that this point of view has been seriously considered by the Attorney-General, or otherwise the provisions would not have found a place in the Bill. Magistrates, as a rule, are fair-minded men, but we ought to cling to our old prerogative of liberty, and see that, for an offence carrying such a punishment, a man is tried by his peers, according to ancient British custom.
– Two years is the maximum penalty.
– But a magistrate who happened to be in a bad humour might inflict the maximum penalty. In the past we have known “ good hanging “ Judges, and we may have a “ good hanging “ magistrate who, for a comparatively trifling offence, will inflict the maximum punishment. We ought not, in my opinion, to be subject to that risk. It is only right that we should adhere to the principle of trial by jury for which our forefathers fought. Of course, we on this side, as a minority, can do nothing but voice our opinion. Clause 6 o provides that any person who wilfully insults or disturbs a Royal Commission, or interferes with its proceedings, and so on, shall be guilty of an offence. That is rather too thin-skinned a provision. The other day we had a case in point. In fact, the whole of this measure arises out of that somewhat unseemly squabble-
– Order ! The honorable member must not discuss that matter.
– I bow to your ruling, sir. Let me say that the Bill arose out of a certain case, which is sub judice, and must not be discussed. That is the only case I can recollect where any feeling at all has arisen out of the action of a Royal Commission. I was a member of a Royal Commission which inquired into the making of engines at Ballarat as compared with the Newport workshops, and we had not the slightest trouble in obtaining information. That is my only personal acquaintance with this kind of work, but I have watched it all my life, and I do not recollect a case where there has been any trouble between the witnesses and a Commission. I therefore do not think there is sufficient justification for such a tremendously drastic measure. It is provided that the Chairman of a Royal Commission, or the sole Commissioner, where he is a High Court Judge, or a Judge of the Supreme Court or County Court or District Court of a State, shall be able to deal summarily with certain offences. I do not think that provision is required. If the records of past Royal Commissions are examined, I think it will be found that the people of Australia are very law abiding, and have always behaved exceedingly well. It is not worth while, for the small gain that is likely to be obtained from this measure, to run the risk of punishing a man by depriving him of his liberty for two years for a comparatively trivial offence, because, after all, there has been only one case that we know of where there has been the slightest friction.
– What about the Harvester case? McKay refused to give evidence.
– I should think that the law ought to have been tested with a view to making him give evidence. Was that done?
– Hear, hear ! That is what we are bringing in the Bill for.
– The main point that overshadows every other is that a man may lose his liberty, and that should happen only in the good old British way of trial before a jury of his peers. No single man, whether a Judge of the High Court or any one else, ought to be able to put any other man in gaol.
– What about a Judge sentencing a man for contempt of Court?
– The penalty for contempt is very seldom imprisonment. As a rule it is a small fine.
– I take it that you are afraid that people will have to tell the truth under this Bill.
– I do not think that is a necessary deduction from my remarks. So far as I have seen, people tell the truth in the Law Courts. However, I have put the matter as plainly as I could. Honorable members opposite are just as much responsible for the liberties of the people as I am, and I cannot be blamed now if people are subjected to these penalties and to this loss of liberty. I am afraid that some of my honorable friends opposite have lost their liberty, and have to take the views of the Caucus in these matters.
– We are the Caucus.
– But there is that little inner ring which sits in the Star Chamber, and regulates the vote, and “ deals it out “ to honorable members opposite. I cannot do more than call attention to the very serious and obvious blots on the Bill; but I suppose the “brutal majority “ will override us again, and put us in our places.
.- In a general way I do not object to increased powers being given to Royal Commissions, but it is impossible to read the extreme penalties imposed by this Bill without realizing that, instead of it being general legislation, it is legislation for a specific purpose. There seems to be an impression that the Opposition desire to prevent the Bill passing because they fear that a Royal Commission may get at some truth that is necessary for public purposes; but, so far as I am concerned, and I think I may say the same of the Opposition generally, we do not object to reasonable powers being given to Royal Commissions to carry out their investigations in the public interest, but we do claim that the penalties, in the Bill are altogether unreasonable and unnecessary. Nothing has arisen in Australia, so far as I know, in connexion with Federal Royal Commissions, which would justify the impositionof fines to the extent of £500, or imprisonment for five years. The House would be wise if, whilst admitting the general principles of the Bill, it modified the penalties. Clause 6o seems to indicate a desire to prevent criticism during the progress of a Royal Commission. Surely a Royal Commission appointed by the Federal Government, and taking evidence in public, doesnot desire that its proceedings should be free from public criticism, particularly criticism through the press. I notice the suggestion to apply only the words “ false and defamatory,” but it is a matter of opinion as to what would be defamatory in respect of newspaper criticism during the progress of a Commission. The wording is vague. It gives a great amount of power to the Chairman, and whilst I do not object to giving increased power to a Commission to carry out its investigations and control its witnesses, I think the Bill partakes somewhat of the nature of panic legislation, and is specific instead of being proposed for general purposes. I move -
That all the words after “ That “ be left out, with a view to insert in lieu thereof the following words : - “ This Bill is oppressive and dangerous, inasmuch as among other matters clause 6o empowers the President or Chairman being a Justice or Judge to arbitrarily commit without appeal for statutory contempt indefinitely expressed in wide and general terms.”
– Is the amendment seconded? The honorable member who rises has already spoken. There being no seconder, the amendment lapses.
Question resolved in the affirmative.
Bill read a third time.
Debate resumed from 30th July (vide page 1424), on motion by Mr. Tudor -
That this Bill be now read a second time.
.- The only aspect of this measure upon whichI wish to touch at present is its probable effect upon trading conditions at Papua.
It has come down from another place containing, I understand, a clause setting out in effect that no boat carrying a coloured crew may trade between ports within the Territory or under Commonwealth jurisdiction. That seems to me to menace the present condition of trade at Papua. I do not know to what extent the constitutional objections urged by the honorable member for Angas affect the position, or whether under the Royal proclamation placing Papua under Australian control we may not be debarred from passing legislation of this sort affecting that Possession, because the Imperial proclamation states that no Australian Act shall apply to Papua, unless it is specially stated that it shall do so. It seems to me, however, that Papua is, in effect, specially referred to in this Bill, because it is declared that - “ Australian trade ship “ includes every ship (other than a limited coast trade ship or river arid bay ship) employed in trading or going between places in Australia, and every ship employed in trading between (a) Australia, and (4) territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific.
It will thus be seen that the Bill is so framed as to make its provisions operative in Papua. At the present time only three or four vessels call regularly at Papuan ports, and all these carry coloured crews excepting certain subsidized vessels. If this Bill extends to the Papuan trade, the companies to which these vessels belong will either have to substitute white for coloured crews, or go out of the trade. I desire to point Out very briefly what the consequences of the withdrawal of these vessels would be to Papua. At the present time two lines ot oversea vessels call every month at Port Moresby. One line is conducted by Messrs. Burns, Philp and Company Limited, while the other is that of the Royal Packet Steam Navigation Company. These vessels call regularly on the way down from Singapore, whilst the vessels of the North German Lloyd Company call at Papua and adjacent islands once every two months. In addition to these services, a regular service is conducted between the Commonwealth and Papua by the vessels of Messrs. Burns, Philp, and Company Limited under contract with the Commonwealth Government. Those steamers visit Port Moresby every six weeks, and they are also required to supply a. monthly service between Papuan ports. So far as that particular service is concerned, no trouble need be anticipated, because Messrs. Burns,
Philp, and Company Limited receive a subsidy in connexion with it. The subsidy amounts to something like .£3,000 per annum, and it places Messrs. Burns, Philp, and Company Limited in a unique position compared with other companies, who will be compelled to substitute white for coloured crews on their vessels if they desire to continue in the trade with Papua. I am given to understand that it will be practically impossible for those companies to continue to allow their vessels to call at Papuan ports if it is demanded that white crews shall be substituted for the black crews now carried by them.
– Is the honorable member speaking generally, or only of Australian ships ?
– We cannot control other ships. I do not think the Bill relates to oversea ships. The steamers now calling regularly at Port Moresby on the voyage from the East to Australia carry rice and other produce that are consumed by the people of Papua, and if they are compelled to withdraw from the trade because they carry coloured crews, such cargo will have to- be brought on to Australia and transhipped in such a way as will lead to an injustice being done to the people of Papua, who certainly have every claim for fair consideration at our hands. If this condition is insisted upon so far as vessels touching at Papuan ports are. concerned, it will mean that the lines to which I have referred will go out of the Papuan trade, and. that that trade will at once become a monopoly in the hands, of . a company occupying a privileged position. That company is not only a carrying, but a trading, company, and with such a combination we know what the possibilities are in the matter of abuses.
– Is that an Australian company ?
– I am speaking of the company which is at present under contract with the Commonwealth Government to carry the mails between Australia and Papua - to conduct a six-weekly service between Australia and Port Moresby, and to keep in touch with other Papuan ports every month. We have a right to pay some attention to a resolution dealing’ with this question that has been passed by the Legislative Council of Papua. I have obtained a copy of that resolution, and should like to place it on record, inasmuch as it sets out very clearly the objections to which T have briefly referred, and practically calls. upon this Parliament to protect the rights of the people of Papua.
– Who says that they have rights in this regard ?
– If we place a heavy embargo in the way of the people of Papua obtaining food supplies, then we are certainly interfering with their rights. It is our duty to keep the avenues of trade as clear and as free as possible, even if, in order to do so, we have to nationalize the shipping trade between Australia and Papua. If there is any function to which the power of the Government might safely be extended, it is the function of keeping open the avenues of trade, if necessary, by nationalizing shipping and the railways.
– We should fritter away the whole thing, from one end of Australia to the other, if we started off in that way.
– I am not suggesting that we should start off in any particular direction, I am simply pointing out that trade ought to flow freely.
– The honorable member is asking that certain vessels shall be allowed to carry coloured crews.
– I assert that it is impossible for ships carrying white crews to trade withPapua unless they are subsidized. The mere fact that we have had to subsidize a shipping company to carry white crews on its vessels trading between here and Papua indicates that it is unprofitable for a shipping company, in the absence of a subsidy, to conduct that trade and observe the condition as to the nonemployment of coloured crews. I presume that this Government is not prepared to subsidize all the shipping companies trading between here and Papua, with a view of inducing them to carry white crews, and, that being so, the one company to which I have referred will enjoy a monopoly. We have a right to protect the pioneers of Papua in this way, anyhow, until their trade develops. The following is the resolution to which I have referred, and which was carried by the Legislative Council of Papua on 2 1 st November last -
That the Government of the Commonwealth of Australia be informed through the Minister for External Affairs that the proviso at the end of section 295 of the “ Navigation Bill” now before the Commonwealth Parliament will, if it is passed, be detrimental to the lest interests of the Territory for the following reasons : -
We desire also to point out to the Minister that the provisions of clause 289 regarding the wages of crews on the coastal vessels of the Territory will, if carried, be a very hard blow to the owners of the numerous small vessels that our coastal plantations and stations depend upon to connect them with the larger ports.
The last clause in the resolution refers to the fact that this Bill, if applied to Papua, will have the effect of rendering it impossible to carry on the trade now being conducted between Papuan ports, because it will prevent the employment of Papuans on coastal vessels there. That, I presume, is not the intention of the Government. Although we declare that coloured crews shall not be carried on vessels engaged in the Australian trade, we surely are not going’ to prevent Papuans being employed in their own coastal trade. It would be just as reasonable to declare that the awards of the Conciliation and Arbitration Courts of Australia, in respect of Australian conditions, should apply to Papua as it would be to declare that the shipping conditions imposed by this Bill, which purport to apply to all Australian territory, should apply to Papua. I do not think, however, that the Ministry intend to do anything of the. kind, and, that being so, I shall not discuss the question further.
. - I am extremely glad to hear from the Ministerial side of the House the first note of exception to certain features of this measure. The honorable member for Macquarie has struck what one might describe as the international note, since he has shown that Australia cannot afford to build a Chinese wall around its limitations, and to say that we are going to live in a smug, selfsatisfied way to suit ourselves. That is a phase of the question with which I shall deal a little later. I wish to preface my remarks with the statement that I am quite willing to acknowledge both the ability and the excellent tone and temper which the Minister has displayed in his treatment of this measure. 1 suppose that no more complex question has ever been submitted to this House than is the question of a Navigation Bill, and that a layman, so little accustomed to dealing with great and involved questions of this sort, should have expounded the Bill so fully, fairly, and ably to the House as the Minister has done is a matter that calls for acknowledgment. If the spirit which the Minister has shown in expounding that Bill, and in plainly expressing his willingness to seek light from its critics be sincere, then I do not think we have anything to fear with regard to the possibility qf making this measure a very valuable one for the shipping of Australia. As the Minister has admitted, the Bill is fairly crude in its form. The honorable member admitted that it had not been revised in the light of the decision of the High Court in the Kalibia case. The Minister has admitted that very fairly. He and the Prime Minister have also admitted that we cannot pass laws for the regulation of intra-state shipping: an admission which gets rid of the difficulty respecting the coastal trade of Papua, to which the honorable member for Macquarie drew attention, and of the objections of the Intra state shipping companies, which have pointed out the impracticability ‘of applying many of the provisions of the Bill to their vessels. T have had a good deal of experience in connexion with shipping, acting at one time as managing director of a firm which possessed twenty steamers. No other member in the chamber has been more saturated with shipping talk, on every branch of the subject, than I have during a fairly long life. Possibly many of those who are listening to me may suspect that my criticism is actuated by personal interest, but when they have heard all that I have to say they will acknowledge that I have at least tried to be fair. No measure requires closer and more disinterested attention than does this, because its provisions are intimately connected with several aspects of trade unionism. It may be thought that on that account, as a member of the Opposition, I view it with a slight bias, but I assure the House that I approach its discussion with a perfectly open mind. The desire to improve the condition of the sailor is a laudable one, though the sailor of the old days who hitched his pants and chewed his quid is a forgotten quantity. Large steamers no longer carry large sail power to keep them off a lee coast in the case pf a breakdown of machinery, because the possible advantage is more than counterbalanced by the inconvenience. Very few of the steamers which employ sails have what is termed square canvas, but limit themselves to a fore and aft canvas. Consequently, the old-time salt, immortalized in Two Years before the Mast, Dana’s wellknown and splendid novel, has almost disappeared. Similarly the old man-o’ warsman has gone. Even the garb of the seaman has been so changed that it bears little resemblance to its one-time appearance. Seamen of to-day are of a different type from those of Marryat. On vessels of war they are largely engineers, or at least mechanics, and on mercantile vessels they have become “ deck hands,” whose duties do not embrace the furling of mainsails, the reefing of topsails, and other tasks inseparable from the characters of the novelist. But while it is desirable that those who work on ships should be made as comfortable as possible, there is a danger of coddling them. I shall endeavour to steer a middle course between treating the seaman as a person of no consequence, and treating him as one to whom even more consideration should be extended than is usually given to a second or thirdclass passenger. Some of the provisions of the Bill, if they were applied to many of our coastal vessels, would make it impossible for the owners of those vessels to continue in business. It is gradually becoming impressed on those who are disposed to look on even the law of gravity as something to be legislated against, that parliamentary interference with the laws of political economy hits back in boomerang fashion upon those responsible for it. The workers have found that if you increase the wages of every class of artisan employed on the construction of houses, rents go up, and that if you raise considerably the remuneration of those engaged in manufacture, the necessaries of life become dearer. Unless the reading of a lifetime has been misspent, I am right in asserting that if you increase the comfort of the sailor to an extent that materially adds to the cost of running vessels, you will in the end so increase the expense of transport that the community will suffer by the increase of its living expenses.
– What is the point of limitation ?
– In this matter it must be determined by honorable members when the Bill gets into Committee; I anticipate with great interest the elucidation of the problem that is to be expected from the honorable member when his opportunity to speak comes. Those who are acquainted with the coastal traffic of the Commonwealth are aware that at times New South Wales depends largely on Victoria for its vegetables, fodder, and a great variety of products, and that Victoria and all the States get much of their fruit from Tasmania. I might enumerate, if I thought fit to occupy the time, the various ways in which our coasting vessels are used to transport the products of the States from one part of the Commonwealth to another for the convenience, profit, and benefit of the whole community. The importance of this traffic must be borne in mind in view of the fact that if you substantially increase the expenditure required of shipowners they must of necessity charge higher rates for passenger fares and the carriage of goods, until the increase comes home to every consumer. It must further be borne in mind that the consumer will be forced to make good not only the increased outlay of the ship-owner, but something additional to provide for contingencies. The same thing takes place when the cost of building operations or of production is increased.
Honorable Members. - Hear, hear.
– Honorable members admit the truth of my remark in a hopeless fashion, as if I were speaking of an unforgivable class which is always out for blood, forgetting that in the management of their own private affairs they exercise the same care and economy as is practised by ship-owners and all other persons in business. To remember the facts to which I have drawn attention may help us to arrive at a happy medium between providing the sailor with comfortable conditions and coddling him in a manner which will make him less helpful and independent than he is now. The Minister, I judge from an observation he made in his speech, recognises the tendency after every great calamity at sea to overdo the precautions for the saving of life.Twentyfive years ago I had the misfortune to write a book.
– Misfortune !
– Job says. “ Oh that mine adversary would write a book,” and upon occasions I have had my book quoted against myself. When I wrote it I knew something about shipping, and in a chapter entitled Modem Spurious Liberalism, I showed the tendency of Legislatures to run to extremes whenever a wreck had taken place upon the coast. I said, writing in 1887 -
A few months ago a fast and tolerably valuable steam vessel was lost upon the Australian coast during her passage from one colony to another. Unfortunately, a good many lives were lost, under very painful and distressing circumstances. Public attention was called to the matter, and, for several days, the columns of the newspapers were filled with the usual demands for the “ most searching inquiry.”
I quote “ most searching inquiry,” because it is the stereotyped phrase which appears in every leading article in the press the moment a wreck takes place in any part of the world -
The mishap was accounted for in various ways, by the more omniscient section of the public.
I am glad to see that there was a little bit of irony in my writing as far back as twenty-five years ago -
Even Parliament took the matter up, though in a somewhat desultory fashion, and said what should be done to prevent a recurrence. Those expressions of opinion are interesting as showing the almost incredible ignorance which ordinary legislators may display, and, moreover, they give one a fair idea of the sort of legislation which might be expected if the desire for some reform had only been sufficiently long-lived.
One member, who has filled the position of a Minister of the Crown, attributed the breaking up of the vessel, after she had struck on the rocks, to the fact of her being “ old “ ; and he is reported as having said : “There ought to be a law to prevent old ships from being used for such important work.” The author of this safe generalization might have learned, with a little inquiry, that the vessel in question had, as all other such vessels are compelled to do, been duly submitted, periodically, to a searching survey, provided for by the Legislature itself, and that she possessed a certificate of “ seaworthiness,” such as Parliament itself required. A second law-maker, having satisfied himself that the vessel had chosen a course too near the coast, proposed that “ a line might be drawn on the chart, within which no vessel should be allowed to go nearer to the land.” He gave as a parallel case the fact that “the steam-ships of the Cunard line followed regular tracks to and from America,” and, in the same easy-going way, advocated that “ more stringent regulations were required to insure greater safety.”
The idea of a “line on the chart” or a “line round the coast “ was indulged in by other equally original advocates. A third member of the Legislature was of opinion that “ it would be an easy matter to fix a simple contrivance on all lighthouses, by which a route at a given distance from the shore should be defined. The Legislature could then provide that any captains or any owners who permitted their vessels to be taken within such a limit should be liable to severe punishment.” “They could,” added a fourth, “ be reported by the lighthouse-keepers.”
I was then referring to the Victorian Parliament -
The member who’ advocated the “old ship’’ theory expressed the novel opinion that the vessels were driven at the present dangerously fast rate in order to save coal, and he advocated Parliament laying down a minimum time in which the passage should be done, so that if any vessel travelled faster than allowed by Act of Parliament, she should be compelled to postpone her entrance to the harbor of destination.
Most of that extract is quoted from the utterances of men who stood on the floor of this very House - one an ex-Minister - and who made those wonderful suggestions with regard to the shipping of Australia. I now pass from local to British matters, and in the same book I wrote as follows: -
In a minute of the Board of Trade of November, 1883, it is said that, since “ the Shipwreck Committee of 1836, scarcely a session has passed without some Act being passed, or some step being taken, by the Legislature or the Government with this object “ (prevention of shipwreck) ; and that “ the multiplicity of Statutes, which were all consolidated into one Act in 1854, has again become a scandal and a reproach,” each measure being passed because previous ones had failed. Here follows the melancholy but instructive admission that “ the loss of life and of ships has been greater since 1876 than it ever was before.” The cost of administration, meanwhile, had risen from ,£17,000 to ,£73,000 a year. . . . The report of the Royal Commission which .was - lately appointed to inquire into the existing depression of trade and industry in Great Britain contains the following confirmation of my contention : “ Our ship-owners have an additional ground of complaint in the fact that foreign vessels, loading in our ports, are not subjected to the load-line, and other regulations of the Board of Trade, which, being enforced on British ships, impose additional expense and trouble upon their owners. Owners of foreign ships thus . . . enjoy in our ports, a latitude in regard to loading and an exemption from other troublesome regulations which give them an unfair advantage in competition.” . . Sir Frederick Bramwell,too, learned at Quebec, to which port English ships had been accustomed to be sent for timber, that the trade was being done between that port and England by Swedish ships, the rea’son being (he says) that “ the restrictions upon the working of English ships were such that they could no longer compete with the Swedes.
These are only passages taken from a chapter dealing with a variety of other matters; but there is a great deal more written in order to show how careful the Legislature should be if it wishes to legislate wisely in avoiding the extremes! in the first place, of the desires of the shipowner, which are naturally in his own interest, and the desires of extremists and enthusiastic reformers, who are always against the ship-owner. There is no doubt that the wreck of the Titanic, one of the most shocking and tremendous events in the history of the world in regard to the sea, hascreated just the same furore for legislative steps to prevent a recurrence.
– There has been no amendment inserted since that wreck.
– If the Minister had heard my opening remarks he would know that I have given him credit for dealing with this matter in a very, fair spirit, and in excellent tone. But there is likely to be in the minds of honorable members who will deal with the Bill” in Committee some strong feeling as towhat ought to be- done to try to prevent a recurrence, perhaps on a smaller scale, in our own waters, of what happened to the Titanic. People who do not understand the difficulties of ship-owning, or qf running a line of steamers, sometimes display a lack of knowledge, such as my friend, the Minister of External Affairs, exhibited’ some years ago in this House. He stood up in this corner and proposed that the Commonwealth should run a line of steamers to England. He said he had’ worked the whole thing out, and that theresult would mean a good- deal of money for the Commonwealth.
– There may be such a lineof steamers yet.
– We have another wise man in the person of the honorable member for East Sydney, who- would be prepared to issue a balance-sheet for an ocean line of steamers to-morrow. He reminds me of Lord Brougham, of whom somebody once said that he was so versatile that he would be prepared to take charge of the Channel fleet, or perform an operation for stone at a moment’s notice. The honorable member for East Sydney is omniscient and omnipotent, but I do not think that even he knows much about ships.
– I have been on one.
– And no doubt the honorable member, having “ been on one,” thinks he knows all about them - that is characteristic of him. The Minister of External Affairs, when an independent member in this House, proposed, as I say, a line of steamers, which he said would show a. very substantial profit. I remember that upon that occasion I asked him what percentage he had allowed in his balance-sheet for insurance, in view of the fact that ship-owners usually allow 5 per cent. The Minister of External Affairs said that he had not allowed anything under this head. I then asked him what he had allowed for depreciation of value in the ships, and he said that, under this head also, he had not allowed anything. I may say that ship-owners usually allow 5 per cent. for depreciation.
– I should be glad if the honorable member would read exactly what was said on that occasion.
– I could not spend so much time over the honorable member’s speech.
– The honorable member is making an incorrect statement.
– It is very easy for the honorable member to say that, but the facts are as I have stated.
– It is easy for the honorable member to say what he has said.
– Would you mind, Mr. Speaker, telling me whether the Minister of External Affairs is, or I am, addressing the House? It has been very well pointed out that, if all the suggestions that have been made from time to time by inexperienced people, as to what provision should be made in order to make a ship absolutely proof against possible shipwreck and other disaster, were carried out, it would be cheaper to run a second ship alongside in case of mishap. There is something more in that than a piece of satire, because the accumulated cost of making all the provision that has from time to time been suggested would almost amount to that of running a second ship.’ All this points to the necessity for this House, when it goes into Committee, taking great care to fully understand all the provisions that are to be submitted for approval. I hope that the House, when it comes to that stage, will take a balanced view of the question, and see that we steer a middle course between the extreme of the enthusiast and the extreme, if honorable members choose, of the ship-owner, who would possibly like to run his vessels without any increase in cost, so faras regards the safety of those on board. Another point in regard to which we must take great care is the attitude which was touched on by the honorable member for Macquarie towards outside people. We are beginning to realize more and more in Australia that we cannot live for ourselves and to ourselves; we cannot build a wall, and shut ourselves up, saying in a smug way that we are going to make ourselves comfortable inside and not bother about what is going on outside. It is very few years ago since in this House there was some difficulty in carrying a resolution or Bill by which Australia should contribute£200,000 a year towards the upkeep of the British Navy; though we all now recognise that we are committed to an expenditure of£5,000,000 a year. That is a very changed attitude with regard to our relationship fo the Imperial Navy, and it can well be applied to the question of the merchant service. We know very well that we cannot go on in Australia without considering our relationship with the outside world. We have to recollect that we are largely dependent at the present time for our rapid and perfect communication with the Mother Country on companies who have to trade with other parts of the world. The merchant shipping of England is at present carrying freight representing£90,000,000 a year, and we cannot shut our eyes to the fact that the receipt of such a sum by English shipping is a matter on which we should dwell seriously when we are providing for conditions that will suit ourselves. If in making laws for Australia we find that, on the one hand, we may clash with the High Court, and, on the other hand, may clash with the provisions of the Merchant Shipping Act, which regulates the stupendous shipping of the Empire, we are likely tofind ourselves in trouble in more ways than one. In the memorandum containing the suggestions of the Board of Trade regarding this Bill will be found some very interesting matter bearing on that question. I mention this now because the House ought, I think, to carry itself well outside of Australian local requirements, remembering what we have to deal with when we come into conflict with the British authorities. The Board of Trade made 172 suggestions, and at page 12 of the memorandum honorable members will see that the solicitor of the Board, who, honorable members may feel satisfied, is a man of considerable legal knowledge, and is assisted by other people whose opinions are not given hastily, says, through the President of the Board of Trade -
I would also remind your Minister -
This was the representation of the opinion of the solicitor of the Board of Trade through the British Minister -
That, if the standards adopted in any Dominion are considered unreasonable by foreign Governments, they are almost certain to retaliate, not merely against the ships belonging to that Dominion, but against all British vessels using their ports, and it would probably be impossible in practice to induce them to restrict this discrimination merely to vessels registered in the Dominion in question. For example, in the case of the survey of steamers referred to in the last paragraph of my despatch, it would be quite possible for a foreign Government to require a different kind of equipment, possibly of some patented kind, to that already provided, and British ships present a wider front to this kind of attack than any others.
No doubt the shipping of Australia is still comparatively small, and the risks to which reference is made may therefore not seem likely to entail much loss upon the Commonwealth, but in this matter His Majesty’s Government believe themselves to be entitled to ask your Ministers to remember the great importance to the United Kingdom and to the Empire of the maintenance of the supremacy of the British Mercantile Marine, and not to take steps which, however little harm may directly be done to Australia, may cause serious loss to one of the most important of British industries. His Majesty’s Government feel assured that your Ministers are anxious in every way to assist in the development of the trade of the Empire, and that they will not willingly place obstacles in the way of development.
In the Bill as it now stands - and honorable members will understand that the Minister admits that, since the Kalibia appeal to the High Court, no amendment has been made in the Bill, and, of course, it will involve a great many - out of the 172 suggestions of the British Board of Trade only seventeen have been adopted, twenty-two have been rejected, in a large number of others compromises have been made or attempted, and still others are left open.
– Since then British legislation has gone in the direction to which the Board of Trade objected.
– That is quite likely, and, therefore, it may cut down some of their suggestions.
– It has done so.
– The Bill has a history. It has been on the table for many years, and I suppose every Ministry which’ we have had in this House has had something to say upon it. For some of it we might hold Sir Edmund Barton answerable; for some, the present Leader of the Opposition ; and for other provisions, the present Government, who had some dealings with it two years ago in the Senate. It is, therefore, a mixed production, and not a pure merino of either the Labour or the Liberal party. So many people have had a hand in it that we can well afford to approach it in a neutral spirit, with a desire to make of it as good a measure as possible. I desire to impress on honorable members, however, that, on the one hand, we have to deal with the Imperial authorities, and, on the other, with the High Court. Although we may be prepared - I do not think we are, and I hope we are not - to take up a “ swashbucklering “ attitude, saying, “ We are going to legislate for Australia, and do not care what effect it has on British opinion,” we have to remember that the measure will not be approved of by the Governor-General, but will be sent Home for the Royal assent in case it comes into conflict with the British shipping laws. Already the High Court has laid down a very distinct principle in the Kalibia case, to the effect that the Commonwealth has nothing to do with shipping which goes on exclusively within a State. That principle is perfectly sound, because the object of Federation was to enable the Commonwealth Parliament to deal with aspects of different subjects with which the States could not deal, and not to come into conflict with the States. We have, therefore, on the one side, the British Government, with its Board of Trade, its British shipping, and its shipping laws, and, on the other, the High Court.
– If we did not have a good Navigation Bill, we should have a muddle.
– The honorable member will admit that we do not want a muddle. We ought to do “ the fair thing.” I do not regard the Bill as the production of any particular Government. It is a hybrid, and we can afford to give it hybrid treatment - not by kicking it out like a hybrid dog, but by trying to make something better of it than it was when it came before us. A spirit has shown itself in this House from time to time - I think it is disappearing now - of regarding the High Court as a sort of excrescence on Federation, of which we ought to get rid. I think we all know now that, after all, we could not have had Federation without a High Court, and that it is the constitutional umpire. The States have been given a certain domain, the Federation has been given a certain domain, and the umpire is essential, in order to say when the States are trespassing upon the Federal domain, and when the Commonwealth is trespassing on the State domain.
– It is a wonderful thing that the Germans did not have that law.
– In framing our Federal Constitution, we tried to benefit by the experience of America, Canada, Germany, the Greek. States, Switzerland, the Netherlands, and a variety of other Federations which we had historically before us. I have seen exhibited often in this House a tendency on the part of many honorable members to say, regarding proposed legislation, “ It may be beyond our domain, but we will chance it, and give the High Court an opportunity of saying whether it is ultra vires.” The High Court has had so many Cases of the kind, that, following the American practice, it has laid down the principle that, although part of an Act may be ultra vires, if it is separable from the rest of the Act, and the rest is perfectly constitutional” that which is unconstitutional may be eliminated. I believe that attitude towards legislation of “ chancing it “ is being displayed in the House less now than it was. In one of the addresses which Mr. Bryce gave, I think at the University, he pointed out that the same spirit was very noticeable in America for many years after they began their Federal institutions ; but that Federal politicians in that country now recognised pretty clearly the true provinces of the States and of the Federal Government, and that these questions were much less frequently coming up there, because it was becoming a more settled community. I wish to draw attention to the enormous size of this measure, which contains 424 clauses. We have never had a Bill before this House containing anything like that number.
– We have had none half the size
– The Minister makes the fair acknowledgment that the Merchant Shipping Act of Great Britain has been “ the basis of all shipping laws passed in British Colonies,and also, to a large extent, in foreign countries, particularly in the United States.” The Navigation Commission, which sat in Australia, and which was made up very fairly of both sides of the House, made certain proposals. I hope we shall attach some importance to their very deliberate findings, because, in certain respects, the Bill departs from them. They were a very fairly and evenly constituted body, which took evidence in a great variety of places over a great period, and made a very careful report. While the Tariff was being considered, the honorable member for Hume took so little notice of the findings of the Tariff Commission when they did not happen to fit the particular doctrine he was espousing, that he used to take the findings of the majority of the Commission, and talk of them as the findings of the whole Commission. I submit that, if we deliberately appoint a Commission, we ought to respect its findings. If we think men are fit to make inquiries into a big subject, and report to Parliament regarding it, we ought to respect their decisions as being on the whole wiser and better than those of individual members who have not had time to look as fully into the question.
– We are not bound to accept their decisions if we do not think they are right.
– Every individual whose knowledge we may describe as being equal to the figure 5 will regard as wrong the finding of a Commission whose knowledge, let us say, is represented by the figures 100. If he possessed the remaining ninety-five parts of the knowledge possessed by the Commission, he would come to the conclusion at which the Commission had arrived.
– There is the personal equation to be taken into consideration.
– The personal equation might be an even greater disturbing factor. If a man had been brought up in some other occupation, he might be unfit to appreciate even the knowledge of shipping represented, as I have said, by the figure 5. I am supposing, however, that the individual is a man of the same calibre as the Commissioners generally; then the fact of his disagreeing with the Commissioners in the circumstances I have stated would prove only that he lacked sufficient knowledge on the subject. I trust that honorable members, merely because they individually do not agree with a finding of the Commission, will not brush aside the fact that that Commission has probably not only the knowledge possessed by them individually, but .the knowledge of fifty or a hundred men, upon which it is able to come to a more mellowed and matured conclusion. The Commission sat in 1904, and I remember very well the men who constituted it. They were not only knowledgable, but were interested in the question, and quite capable of dealing with it. The Commission took evidence in every State, and examined 163 witnesses. I propose to draw the attention of the House to one aspect of the Bill which differs entirely from the proposals made by the Commission itself. The Commission came to the conclusion that the air space allowed per man should be increased from 72 cubic feet to 120 cubic feet. That is a fairly substantial increase ; but the Bill provides for 140 cubic feet of air space per man, or nearly double the space now provided.
– I think it is about the size of a grave.
– To talk of the space that is “allowed every man on board ship as being sufficient for his grave is not to dispose of the difficulty that confronts us. I have been backwards and forwards between Australia, England, and America on every kind of ship.
– In the forecastle.
– Yes ; and I may tell the honorable member that I have helped to reef a topsail and have helped to furl a royal. I know something of what I am talking about, and the flippant comments in which the honorable member for East Sydney is indulging only show the difficulty of inducing some men to seriously discuss an important question. Let us consider, now, the accommodation given to third-class passengers on some of our ocean-going steamers. There men are packed like sardines.
– We want to get rid of that sort of thing.
– Honorable members who went Home at the country’s expense to see the Coronation - who travelled first saloon, had six meals a day, and wore dress clothes, may think that the accommodation in the third class is very poor, but I know many men who have travelled third class - where the bunks are so close together that a man in an inner bunk practically cannot get out until his neighbour has shifted - and have enjoyed the voyage very much.
– They would have enjoyed it more had they travelled in the saloon. I have travelled in both classes, and I am able to speak from experience.
– Quite so. Since their return I have observed a marked difference in the attitude of honorable members who went Home at the expense of the country to see the Coronation. The honorable member for Eden-Monaro told me, on his return from England some time ago, that he thought that if £1,000 were placed to the credit of every man elected to this Parliament on the condition that he should spend it in travelling .round the world, the Commonwealth would be benefited, since honorable members would come back with a wider knowledge, and the country would profit by their experience.
– An admirable suggestion.
– I am afraid that it would have to be carried out in instalments, otherwise we should not be able to keep a House. I have noticed that those who went Home to England in connexion with the Coronation came back better dressed, and also with more liberal ideas as to how the world should be managed. They seem to have come to the conclusion that, after all, Australia is not the only place in the world. To return, however, to the0 question to which I was referring when interrupted, I have no doubt that the Minister will be able by-and-by to show us why the recommendation of the Commission in regard to the air space to be allotted has been exceeded in this Bill by 20 cubic feet. I ask the House to remember that you may go on making people on board ship comfortable to such an extent that you either make the trade unprofitable or the cost to the public in respect of freight and passages so great as to add seriously to the burdens of every day life. We have to steer a happy medium course between those extremes.
The question of the unconstitutionality of certain provisions of the Bill will have to be carefully considered. I have already referred to the Kalibia case’s in which the High Court practically decided that it was never intended that the Commonwealth Parliament should legislate in regard to Intra- State as distinguished from Inter-State conditions. 1 notice that the Prime Minister practically admitted, in a speech made a day or two ago, that that is the position, and once it is acknowledged we shall be clear of a great many difficulties. Apart from the difficulty that may arise in dealing with the shipping of the Motherland and foreign countries, the question of the effect of this measure on shipping within State boundaries has occasioned a great deal of anxiety. I have already had addressed to me by two important shipping companies whose vessels do not go outside New South Wales, letters dealing with this aspect of the matter. One company, whose vessels trade principally within Sydney Harbor, has pointed out to me that some of the provisions of this Bill, if applied to such vessels, would make the trade almost impracticable. I do not know that we need trouble very much just now about that matter, because it is recognised, I think, that the decision of the High Court in the Kalibia case practically does away with the anticipated difficulty. I think that the Minister admits that it does. The question we have to ask is not whether we have the full local power to interfere with British and foreign shipping in the local trade, but whether we shall be able to induce the British authorities so to hamper their own shipping, and to allow us so to hamper foreign shipping trading in Australian waters that there may be retaliation on the part of foreign countries in respect of British shipping, which is such a stupendous factor in the commerce of the Mother Country. That will depend very much on the views expressed by honorable members when we go into Committee. The Imperial authorities will look after themselves; and I have no doubt that the High Court will look after the rights of the States. If any difficulty does arise, we may depend upon it that shipping companies engaged in what is strictly Intrastate trade will take steps to have these questions determined by the High Court. It is important to remember that the High Court has pointed out that if part of a Bill held to be ultra vires is severable from the rest of the Bill, then the remaining sections may continue to operate. If the Minister thinks fit by-and-by to include in the Bill clauses that seem to be obviously beyond our powers of legislation, I trust that they will be in such a form that the High Court will be able to say that they are severable from the rest of the Act. It is important to remember that a great deal of shipping between ports within each State will be seriously affected by this measure. I have already referred to shipping within Sydney Harbor. I would remind honorable members of the trade between Melbourne and Geelong, the Gippsland Lakes, Warrnambool, and Portland, and also of the shipping trade between Sydney and Newcastle, Kiama, Woolongong, and the northern rivers. It is so obvious that parts of this Bill would be impracticable as applied to these inner trades that honorable members must recognise the absurdity of attempting so to apply them. For instance, the provision that practically every vessel shall have a false bottom, so as to insure, greater safety, would be absolutely impossible in respect of vessels engaged in trade with bar harbors. The owners of such vessels have found it necessary, in order to enable them to get over the bars, to limit their draught to such an extent that if would be impossible in addition to allow room for a false bottom. Then, again, we have in this Bill a provision that the crew of a vessel must be accommodated in all cases above the water-line. We shall have an opportunity of dealing with that provision in Committee ; but I should like to point out generally that it could have been inserted only by a man unacquainted with the different kinds of shipping that are engaged in the work of the world. I have travelled from Australia to England ina cabin the port of which was almost permanently under water. The cabin, however, was in other respects well ventilated. To say that the whole crew of a ship shall be accommodated above the water-line in every case is practically to ask for the impossible. In hot weather a cabin below the water-line may be very cool. One side is constantly immersed, and the effect is to have a room which is extremely cool compared with a deck cabin with large ports exposed to the heat of the day. The Minister pointed out that the provisions of the original Bill relating to construction should not apply to vessels built’ prior to the date on which it was anticipated that it would come into law ; and, I take it, this Bill will be so amended that vessels built since that date and prior to its actual passing, will be excepted. In his speech, page 807, replying toan interjection by me, the honorable gentleman said -
The honorable member for Parkes asked whether we intend to compel ship-owners to provide this improved accommodation on vessels which were built before the Bill comes into operation. Clause 137 provides that, except in regard to two matters - the amount of space to be allowed, and the situation of the quarters above the winter load-line - the accommodation on all ships must be made to conform with the provisions of the measure, but that, in regard to these two, if the Minister is satisfied that the accommodation already provided is not insanitary, he may allow the ship to continue to trade.
– With regard to those two points only. All the other conditions will have to be fulfilled.
– It would be unfair to ship-owners who have spent some thousands of pounds on vessels within the past six or twelve months to compel them to make extensive alterations to conform with the provisions of the measure; and I have no doubt that the Minister will act reasonably in all cases where vessels are in other respects satisfactory. Trouble is taken to secure the regular, prompt, and frequent payment of seamen, a provision I heartily indorse. The labourer is worthy of his /.ire. I often wonder, knowing what snug hillets there are ashore, why men go to sea ; and certainly seamen should be paid well, promptly and frequently.
-The honorable mern,ber’s time has expired.
– The Leader of the Opposition has informed me that he came to ‘the understanding with the Prime Minister that in this debate members should be allowed to speak beyond the time allowed by the new standing order. I was not told of that understanding; but I accept the honorable member’s assurance, and am therefore prepared to move the suspension of the standing order until the return of the Prime Minister.
– The agreement was express and clear. I suggested that, as there are not many members to speak, and few will require more than an hour, it would be proper to suspend the standing order entirely for this debate.
– A suspension of the standing order cannot be moved now, but the difficulty might be got over by the House giving the honorable member leave to continue his speech.
– For what length of time.
– If leave is given to the honorable member to continue his speech, it will not be for me to say how long he shall take. Is it the pleasure of the House that the honorable member for Parkes have leave to continue his remarks?
Honorable Members. - Hear, hear !
– I should not have impliedly asked for this concession, were it not generally acknowledged that this is one of the biggest measures that we have had before us, and were it not that it is impossible to deal adequately with it, and pay to interrupters the compliment of replying to their questions within the space of time allowed by the standing order, o Under the Bill, accumulations of money are to be prevented. I agree that what are called “accumulations” should not be allowed. If a sailor wishes to save his money, he can do better with it than leave it in the hands of the master, who, if he is not highprincipled, may by the exercise of some of his powers forfeit part of it. Then what is known on shore as the truck system is prohibited. On sailing vessels it is the practice of captains to provide a small stock of tobacco, clothing, and, in some cases, rum, to be sold to the men, sometimes at exorbitant prices. It would be an extreme step to prohibit masters from having on board a stock of necessaries, because the carelessness of sailors is proverbial ; and the Minister referred to a typical instance of it when he said that sailors often spend their last penny before going on board, and ship with only the clothes they stand up in. To such a man, on a cold voyage, it is a welcome thing to learn that the captain can supply a cheap suit of clothes. Instead of prohibiting this practice, a better course would be to require the establishment of. a scale of prices which would1 prevent overcharging. Hitherto, desertion has been punishable by imprisonment, and I have no hesitation in saying that I approve of the abolition of that penalty. It may have been justified in the past, when the getting of crews was difficult and uncertain; but it must be remembered that desertion is . only the breaking of a civil contract, and therefore should not be punished as a criminal offence. An arrangement might be provided for, under which the master would hold back part of the wages of his men, to be forfeited in the event of desertion.
– Sailors are not paid off until the completion of long voyages.
– The proposal of the Bill is that they shall be paid frequently and regularly ; but if the penalty for desertion is abolished, and the sailors are paid in full at every port, a master bringing a vessel from England to Australia will be at the mercy of his men, who may ship merely to obtain a free passage to this country, leaving him without a crew to work the vessel back again. Therefore, it is fair that the master shall be allowed to hold back part of the wages of his men, to be forfeited in the event of their desertion, and to meet the expense of procuring another crew. I have pointed out that on steamers the men are mostly deck hands.
– They do a lot of painting.
– A man can hardly be called a sailor who merely paints and cleans brasses.
– That is all that many of them have to do nowadays.
– The tone of the honorable member’s remark suggests that he thinks that a seaman’s work has been largely reduced. The Bill provides that crews will not be required1 to help in the unloading of vessels, a practice which the Minister says now prevails in Australia.
– So it does in British ports.
– Not in all British ports; and at every foreign port sailors assist in the discharging and loading of cargo. It is the practice in Australia to relieve the crew of this work, but that is because the . wharf labourers have insisted that it should be left to them.
– Is it not the practice in London and Liverpool ?
– I am not speaking of important ports like London, where experts are employed for the stowing of cargo, which is an art. You could not expect any navvy to stow cargo properly.
– In British ports it is done by the stevedores.
– It is done by the men employed by the stevedores. It is the men under the stevedore who have to exercise great skill in loading a ship for a long voyage, different kinds of treatment having to be given to different kinds of cargo. I have been on a voyage from Australia to England, when for over three weeks the ship was on fire, owing to the tallow and wool being badly stowed, and combustion being caused by the friction.The result was that we had to put in at Valparaiso, and stay there three months. In the big ports where there are experienced stevedores and stowers the crew are not called upon to do this kind of work; but I do not see why, in general work along the coast of Australia, they should not at odd ports, such as Rockhampton, Bowen, and so forth, assist in discharging and taking in any extra cargo to be carried from port to port. In such case the same skill is not required as in stowing tallow or wool ; and it may be that the cargo taken on has to be carried only to the next port, in perhaps a half empty ship. The Minister of Customs referred to some cases of special hardship in which sailors had been mulcted by the captain for lawyers’ expenses, and also to extreme cases of crimping. We ought to be careful not to go to extremes. It does not do to cite very singular cases, because we were reminded this afternoon in a previous discussion that “ bad cases made bad. laws.” We must not take exceptional cases as typical, and legislate for events which do not happen once in a “ blue moon.” We do not want to draw hard and fast lines and treat men as fools ; we have to assume that they have a certain amount of common sense and worldly knowledge, and to legislate in such a way that reasonable men shall not be imposed upon. The Minister expressed the hope that we should pass the Bill quickly ; but I do not think it is a Bil) to be passed quickly in the sense of putting it through hastily.
– I think we have had a very fair “ innings “ with this Bill; it has been “ on the stocks “ ever since I entered Parliament.
– That does not prove that we have wasted time over it. I look on this Bill as a Senate measure, with which we have hitherto had very little to do ; but, in any case, I do not think that the Minister means that we should “ rush “ its consideration. I hope we shall be very deliberate over each clause, and produce a piece of legislation that will hold water, and not commit unjustifiable breaches in regard to interests outside Australia. It is now nearly twelve years since this Bill was first placed “on the stocks.”
– It is nine or ten years.
– We may say ten years ; but, at the same time, it must be admitted that we have not had much to do with it in this House. We do not wish to run over any legal precipices. We must, on the one hand, take care that we do not clash with British law, and, on the other hand, see that we do not practically invite the High Court to tell us that we do not know our business. There is a provision in the Bill with regard to advance notes. It has been the practice of captains to make advances, and it would appear that the Minister has heard of some cases in which this has worked badly, and in which some people have robbed the sailors. But the sailor is not such a “ soft “ gentleman as he used to be. If we read Blackstone’s Commentaries, we are told that the sailor has always been the special care of the Legislature, because he is an innocent, unsophisticated creature. He is not such an “ unsophisticated “ creature to-day, and we ought not to make him sophisticated by coddling legislation. It seems to me that an advance note is a perfectly allowable thing, especially in the case of a married man who wishes to leave some means behind for his wife and family.
– A sailor may get an allotment note, which is better.
– I do not mind what it is called, so long as some provision is made, but the Minister spoke of the advance note system being abused.
– Allotment notes, which are better, have been substituted.
– I am satisfied so long as a man is able to obtain a small sum of money to leave with those dependent on him. The Minister, as reported on page 813 of Hansard, said something with regard to British and foreign seamen, and he later quoted from an opinion written by Mr. Garran, bearing on the question of Inter- State shipping. The Minister quoted Mr. Garran as follows -
Legislative power of the Commonwealth as to Navigation and Shipping -
In the Kalibia case, 11 C.L.R. 689, the High Court held that section 98 did not enlarge the ambit of the trade and commerce clause so as to extend it to shipping engaged in the domestic commerce of a State; and that therefore the Seamen’s Compensation Act, which was expressed to extend to such shipping, was ultra vires.
It must be taken, therefore, that over intrastate shipping - as such - the Commonwealth has no general power to legislate ; but that does not mean that it has no power at all in regard to such shipping.
Then this opinion goes on to try to make a sort of background for some differentiating legislation of a doubtful constitutional character which the Minister wishes to in troduce. I do not suppose I shall get much sympathy in what I have to say, but, at all events, honorable members opposite know that the wages of the men employed on Inter-State shipping, whether sailors, firemen, stokers, cooks, or stewards, are so excellent, and the ship-owners have been so responsive to demands made, that there is a desire now, interpret it as we may, on the part of the Government to put some difficulty in the way of ocean steamers, when they arrive here, trading between ports which are frequented by Inter-State steamers. For instance, it is provided that ocean-going steamers shall not, after they call at one port, carry goods to other ports, and thus be brought into conflict with Inter-Stateshipping.
– Ocean-going steamers may so trade under certain conditions.
– I know. At present those large lines of steamers carry passengers from Sydney to Melbourne and to Adelaide, and so forth, just as the Inter-State shipping does. There was a provision in the original Act by which ocean-going steamers had some concession in regard to trade between Western Australia and Adelaide and Melbourne, because of the fact that the Inter-State railway had not been constructed ; but I am not dealing with that matter now. I desire to show that, although it is clearly admitted that the Commonwealth has nothing to do with Intra-State shipping, there is a sort of suggestion that it is open to the Government, in this Bill, to enact some legislation which possibly may clash with Imperial legislation, but which will enable them to continue to prevent ocean-going steamers from competing with Inter-State steamers. However, we shall have an opportunity to deal with those matters in Committee.
I should now like to quote from the report of the Imperial Conference of191 1 some very interesting but short passages from the speech of the English Minister, Mr. Buxton. Senator Pearce moved at that Conference -
That it is advisable in the interests both of the United Kingdom and of the British Dominions beyond the Seas that efforts in favour of British manufactured goods and British shipping should be supported as far as practicable.
Any one who reads the speech of Senator Pearce will see at once that the purpose set out in the motion is not the one he had in view ; he believed, like a man stalking high game, in not going directly up to it, but in taking a circuitous route, and attacking it from the side or back. In this he expressed great concern in favour of British manufactured goods and British shipping, but all the while he was endeavouring to induce the Conference to take some steps which would give intercolonial shipping an advantage over oversea shipping. His speech was answered by Mr. Buxton, who was clever enough to detect its real purpose, for he expressed surprise th’at these questions should be brought up under the motion. He said - [ was not aware what points would be raised on this resolution, and I did not know, therefore, that this particular point would have been raised in connexion with it. But it having been raised., perhaps the Conference will allow me ito say a few words with regard to it.
The position which His Majesty’s Government have taken up upon it is a twofold one. Mr. Pearce explained what was proposed by the Australian Act, and may I say, in passing, that as far as the object is concerned, we very much appreciate the desire of the Australian Commonwealth’ Government in reference to this matter, namely, to assist the British shipping in connexion with the Colonies, and as far as possible to give an advantage to British shipping over foreign shipping in the Commonwealth. As far its the object is concerned, therefore, we are obliged to the Commonwealth - 1
Honorable members will see the irony standing out there very clearly - for what they have done and what they were desiring to do. But the question had to be considered not only from the point of view of British shipping in connexion with the Commonwealth, but we had to look at it from the point of view of British shipping all the world over.
Mr. Pearce said that the point was taken - :ind he is correct in saying so - that we, in agreeing to this proposed Act of the Commonwealth would have conflicted in many respects with some of our treaties with other nations, and he seemed to imply, I thought, that we might denounce these treaties, at all events a portion of them, with a view of obtaining freedom in connexion with this matter. No doubt that might be done under certain circumstances if the end 3n view would justify the means, but the view we have taken about it is much wider than that. I am speaking now as to our position as regards foreign ships and foreign trade. We think it is not a question of merely denouncing the treaties, but that if this attempt was made, which is the suggestion, namely, to confine the trade of Great Britain with the Commonwealth to British or to Commonwealth ships, this would be very largely resented by the Foreign Powers interested, and “the result would be that we should be open, as we are open all the world over, to attack and retaliation.
Mr. PEARCE. ; It is not the whole trade, but only the trade in those articles which are the subject of the preferential Tariff.
When the preferential scheme was before the House - and I took part in the whole of of the debate on it - not a word was said of the effect it was going to have on British shipping. It was simply a desire by some honorable members to give preference to England, in order to try to get it back from her ; but Senator Pearce used it in the Conference as if it had been proposed to benefit British shipping. To this Mr. Buxton said -
Yes, but still it is practically confining the trade, or very largely excluding foreign ships from a portion of the Australian trade. What we, as representatives of British shipping here, and representatives, I hope, of the British Dominions as well, are nervous about is the power and opportunity of retaliation against our British shipping all the world- over on any of these matters.
I would point out to the Conference that out of the 285,000,000 tons of British shipping all the world over, no less than 164,000,000 tons goes to foreign ports, and a comparatively small portion goes to Australian ports, and therefore for the advantage, and no doubt the considerable advantage, of the trade of the Commonwealth, we do not think it would be worth while to risk the possibility of disadvantage accruing to the very enormous trade which we have with other Powers. That is really the substantial reason why, as at present advised, we do not think on the whole it would be expedient to adopt the proposal of the Commonwealth Government.
He then went on to state - and this rather clashes with the Minister’s figures showing the decline in numbers of British seamen -
As regards one question incidental to that raised by Mr. Pearce, namely, that they would not only propose to differentiate against foreign ships, but at the same time they would differentiate against British ships which carried crews other than white crews, that particular point T think will be raised on a motion of Sir Joseph Ward later on on some subsequent day, and so perhaps I had better not discuss it now. But I should like just to say this, in reference to what fell from Mr. Pearce, that I cordially agree that as far as possible the British Mercantile. Marine should be manned by British subjects - I am not touching on what their colour should be, but British subjects. I dare say it would be to a certain extent a satisfaction to Mr. Pearce to know that since the passing of the last Merchant Shipping Act of 1906 the proportion of British sailors as compared with foreign sailors has gone up in percentage. In 1905 it was 68 per cent, as against 15 per cent, of foreign sailors, and - I am not speaking of Lascars and Asiatics - in 1910, it had gone up to 73 per cent, as against 11 of foreigners. So as far as it goes the tendency is in the right direction.
If the Minister will compare those figures with his, he will find that they are different -
I do not say it is altogether satisfactory.
Senator Pearce then asked ;
What proportion of them are British and what proportion lascars?
To this Mr. Buxton replied -
These are entirely whites that we are speaking of.
He went on to say -
I am afraid I am not in a position to accept this resolution if it is intended to apply to the particular point raised by Mr. Pearce. I took it as a general proposition to which we should assent in principle, and as regards the general proposition, I should have no objection to it. But at the moment, at all events, until the trade develops more than it is at present, the position that we have taken is that the result might be, if we accepted the Australian position, possibly a serious disadvantage to British trade without material advantage on the other hand.
Sir Wilfrid Laurier then made some rather similar remarks. In view of Mr. Buxton’s representations and figures, which show what a stupendous trade England is doing with foreign countries, and how almost infinitesimal,’ however large it may be, the trade of England with Australia is compared with her trade with foreign countries, we should do well to be generous in this matter, and to remember that, after all, the benefits of Empire cut both ways. The Bill provides for the limitation of the amount of coal which stokers shall put upon the fires of a steam-ship. That matter ought to be handled with a good deal of caution.
– Is it on the basis of firemen to the quantity of coal consumed.
– I do not know what the effect will be, but it is an attempt to limit the quantity of coal to be handled. This is a matter in which it would be very dangerous for us to interfere. We are in a very critical stage in the history of coal firing on steamers. The whole tendency, in the opinion of shipping experts, is for ship-building to progress to a very large degree in the direction of using oil for purposes of propulsion ; and this might be one of the very factors to determine the question, because ship-owners, who have to be keen financiers, will take into consideration every small percentage of cost in order to see which of alternative courses they will follow. If we are going to legislate in this House, without knowing the particular conditions of steam-ships, as to how much coal a man is to handle, we shall be on very dangerous ground. We know that there is a very strong tendency nowadays to limit work of every kind. There is a tired feeling over the British world, and a sort of idea that work is an evil to be. avoided as much as possible.
– You know it is harder to stoke in some steamers than in others. That is what the provision means.
– If it is proposed to specify the amount of coal to be used on each particular steamer, it will still be very dangerous. It would be very much like the bricklaying industry. Some men, by piece-work, recently laid in Melbourne 1,500 bricks a day. I have read of cases in England where men laid 3,000 bricks in a day upon a clear wall. In New South Wales the men on Government jobs wanted to limit themselves to 250 bricks a day. The Minister, Mr. O’sullivan, wanted 300, and compromised with 280. That amount to be laid by men who could do 1,500 under piece-work conditions is, of course, an absurdity. I merely mention it to the House to show that it is quite impossible for us here, or even for the surveyors, or the people appointed by the Minister, clearly to understand the effect of draughts on board steamers, or the particular conditions surrounding a furnace on any particular ship, and lay down any standard with regard to the coa! to be used. I hope the House will see the wisdom of leaving that matter alone, and let it be decided by other methods. The Minister, in his speech, said something regarding regulations that I deem rather important. It has a very general bearing on the legislation of this House -
Whilst I am averse to leaving to regulations what ought to be distinctly stated in the Bill itself. J think that we must recognise that wireless telegraphy is a science that is constantly expanding, and that it is extending in so many directions that it might be unwise to tie down the Government too strictly as to what should be required in this regard. We might find, as Congress has found, that it is necessary to alter the law from time to time.
I, for one, protest against the growing tendency in this House to legislate by regular tion. I have had occasion to deplore what I have seen, carried into effect by virtue of a general power given to Ministers under various Acts to make regulations.
– The Defence Act is a case in point.
– The Customs Act, and many others, might also be mentioned. I have seen Executive minutes that ought really to have been the subject of legislation. The practice of giving a Minister a wholesale authority to make regulations in any ‘ direction he thinks fit is a dangerous one. No doubt every Minister has competent officers, but whatever those competent officers desire to do, except in regard to smaller matters, ought to come before the House; and Parliament should have an opportunity of saying whether or not their proposals shall be made the law of the country.
– Parliament has that power- in regard to all regulations.
– I have seen some regulations issued whilst the Minister has been in office that might well have been embodied in an Act of Parliament ; and I could name cases in which a regulation practically had the effect of going back on the Act of Parliament under which it was made. There are only two or three more points to which I desire to refer. The provision of boats on shipboard’ is an important and difficult question. Some people think that a ship should carry enough boats to accommodate every one on board in case of mishap. That seems very feasible, but the principle may be carried to such an extent as to become an absolute absurdity. No doubt every house in a suburb would be more secure against burglary if a policeman were always stationed apposite every front door. But we have to take our chances in that respect, just as we have to take our chance in various walks of life. If some of the larger ships had to carry sufficient boats to provide for all on board in case of accident, their decks would be so hampered that work would be impossible, or their carrying capacity would be cut down to such an extent that it would be impossible .for them to carry on, save with very high charges for deck freight and passengers. I quite agree that all boats on a ship’s deck should be kept in seaworthy order ; that they should be inspected frequently, and that the men who are expected to take charge of them in case of mishap should be carefully and frequently drilled. There is nothing to prevent men on board ship nowadays being thoroughly ‘ trained in the handling of the boats. They have plenty of time on their hands which might be occupied in drilling them, so as to insure that they will be ready at any moment, in case of mishap, to launch the boats, to manage them properly, and to take their proper places in them.
I come now to the question of watertight compartments. Practical ship-owners and experts vary very much in their views on this matter. I heard one of the greatest shipping experts in Australia, now dead, say that he attributed the loss of the Waratah entirely to the fact that she had watertight’ compartments which had been emptied to allow of further cargo being carried on the tween decks, and that when she went over to a particular angle the. emptied tanks acted like a balloon, and helped to turn over the ship. If these compartments are to be airtight, they may be a menace to the stability of a vessel. As every one knows, on many ships there aTe waterballast compartment tanks, and when they are empty they may be a menace to the safety of the ship. The Austral, which went down in Sydney Harbor, was thought by some to have tilted over because her watertight compartments were empty.
– She went down because ot careless coaling. ‘
– There are many men in Sydney who think that the Austral sank, in consequence of careless coaling having caused her to tilt over, until the water flowed into her open ports. Others, whose opinion is equally valuable, came to the conclusion that she would not have tilted over so as to take in water through her ports if she had not had empty watertight compartments, which acted as balloons,’ and helped, after the ship had gone beyond a certain point, so to increase the angle as to precipitate the inrush of water. We know that the Waratah’ s watertight compartments were empty, because at Durban she took on coal, which she carried ‘tween decks. That is an illustration of what empty airtight compartments may lead to. If they are situated on the bottom of a ‘ ship, they are a serious menace in the case of vessels carrying a big top hamper. Any man with a knowledge of shipping, when looking stem on at the great steamers that come into our harbors, cannot help wondering that so much top hamper is allowed, a big top hamper must - have considerable effect in interfering with the stability and safety of a vessel in a heavy sea. I am not attempting to make out a definite case in this regard, because I have not sufficient information to enable me to do so; but I know enough to justify me in saying that the authorities ought to be very careful how they legislate in regard to the provision of airtight compartments on ships. If we require such compartments to be carried along the side or on the bottom of a ship, we shall lessen that ship’s carrying capacity, and provide for a “big balloon being put into her which may be very dangerous in the case of vessels with top-heavy upper decks. The Titanic had airtight compartments, but the iceberg which she struck seems to have gone through both sides. It seems a very easy matter for us to say, “ We will provide for airtight compartments on all ships ‘ ‘ ; but, at the proper time, I shall ask the Minister to tell us what authority he has for saying that airtight compartments should be provided. If this Bill had been intended to apply to Intra-State vessels, the provision in regard to airtight compartments would have been almost impossible, because, in the case of vessels trading to bar harbors, every inch of depth is a matter of importance.
– A good many Intra-State vessels have to cross river bars.
– A great many are engaged in the northern rivers trade of New South Wales, and the matter is one of great importance. I hope that something will be done in regard to the top hamper carried on large vessels - that we shall provide that practical men shall - be called upon, from time to time, to express their opinions upon the sufficiency of the stability or the superabundance, of top hamper on vessels over which we have legal control. These are the only subjects which 1 determined to deal with at this stage; hut 1 shall look forward with very great interest to the Committee work on this Bill. The Minister displayed such an admirable tone in introducing the Bill, and such a complete desire to do what is fair and rea.sonable, by not only the men whose interests are to be protected, but by the owners of the vessels to be affected,. jh.at.T- anticipate a display of open-mindedness .on his part in Committee. I shall be very happy to join with him and others in giving, close, attention to all these questions as they arise at that stage, and in doing my best to help to turn out a thoroughly workmanlike mea-sure.
Debate (on motion . by . -Mr..’ Howe) adjourned.
Kuuse adjourned 10.21 pm.
Cite as: Australia, House of Representatives, Debates, 31 July 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19120731_reps_4_64/>.