4th Parliament · 3rd Session
Mr. Speaker took the chair at 10.30 a.m. and read prayers.
– As it is the practice of every civilized Government to recognise the deeds of valour of military and naval heroes, will this Government provide for the recognition of the deeds of valour of the industrial heroes of Mount Lyell?
– The power of the Commonwealth to provide for such recognition can hardly be doubted, the National Parliament having an equal right with any other to provide for the recognition of deeds of valour and bravery of any kind. I think the time has come when this Parliament should provide for the Commonwealth recognition of heroes of the first class.
– In what form ? Not monetary recognition ; moral recognition.
– Give a medal for valour.
– We might well provide for the bestowing of some token of recognition, which alone is valued by the brave.
– They do not want money.
– Strike a medal.
– I cordially agree with the suggestion of the Prime Minister.
– I wish to know if the Prime Minister has considered whether it would be proper for this Parliament to express its indignation at the act which has laid low Mr. Roosevelt when in the prosecution of his election campaign, and in the exercise of his rights as a citizen.
– Every civilized, person must have been horrified by the act referred to, but I do not think that the circumstances warrant us in passing a special resolution, the injury being slight. I should be sorry, however, were it to be thought by any individual, or any public body, or the citizens of any country, that we are not indignant that any one should be injured in the course of his public services, whatever views he may have been expressing at the time. But the suggestion in the press regarding the condition of Mr. Roosevelt’s assailant should be sufficient to make us hesitate before passing a resolution.
Punishment of Cadets - Ammunition
– In the early part of September the honorable member for Wannon asked a question relating to the punishment of some cadets in Western Australia, to which an official reply was given (vide page 3005), which I read to the House, and the document washanded to the officers in the usual way. The Commandant of Western Australia who prepared the official reply has since called attention to the fact that in the Hansard report of the 10th September the word “ similar “ appears in place of the word “ civil,” which was used, whereby an entirely different construction is given to the reply. I do not, as a rule, read the Hansard reports, because, generally speaking, they are as near perfection as it is possible to get them, but, under these circumstances, I ask leave to have the record amended.
– I wish to ask the Minister representing the Minister of Defence whether he will inform the House at an early date what arrangements are made for inspecting the ammunition supplied by the Colonial Ammunition Company, and whether any change has been made in this regard in repent years?
– I shall be able to inform the honorable member on Tuesday next.
asked the Minister representing the Minister of Defence, upon notice -
– The necessary inquiries will be made, and a reply will be furnished in due course.
Supply of Sleepers and Rails
– Will the Prime Minister lay on the table of the House the terms of the contract with the Government of Western Australia for the supply of powellised sleepers, and allow the Parliament to express an opinion regarding them before the contract is signed ?
– I shall ask the Minister of Home Affairs to lay a copy of the contract on the table for the perusal of honorable members. The other matter is in the hands of the Opposition. The House can always express an opinion.
– Will this contract not be submitted as a mail contract, for example, is submitted?
– The Government must take the responsibility of its action.
– Do I understand that the contract will not be laid on the table before it is signed?
– In my opinion, Parliament is an incompetent body to deal with contracts.
– Is it the intention of the Government not to submit mail contracts to Parliament as has hitherto been done?
– I shall not answer hypothetical questions. When we have a mail contract to deal with, this Government will carry out the policy that it thinks best.
– On Tuesday last I asked the Minister of Home Affairs whether he could inform the House concerning the supply of rails for the transAustralian railway. The reply was that arrangements had been made for the supply of a considerable quantity of rails. I should now like to’ ask the Minister whether lie is in a position to say what he means by “a considerable quantity”? How many tons of rails has he arranged to have supplied ?
– Why all this mystery in reference to Government supplies?
– Because we have to get the forms of bonds out. They will be ready in a day or two, and then the information will be laid on the table of the House. The difficulty is that we. are asked to specify for certain conditions, and then those conditions are changed, and something else is wanted. There is delay interminable.
– The Minister said that he had made arrangements.
– So I have.
– For how many tons?
– Enough torun her for a bit, anyhow.
– Following upon a question already asked, I wish to inquire from the Prime Minister whether he is in a position to tell the House how long it will be before the contract for the supply of sleepers for the transAustralian railway will be laid upon the table?
– There will be no delay on our part. The same conditions apply as with respect to the bonds for the supply of rails. We want to complete arrangements, and then the House will see the contract on the next day.
– I wish to know from the Prime Minister when the return called for by this House, asking for particulars of the cost of Government advertising, will be laid on the table?
– I think that when I last inquired concerning the matter, the particulars about the advertising of the Defence Department were not to hand, but I believe that the return will be ready next week.
– In view of the fact that the loss to the vignerons of the world, caused by phylloxera, equals half the national debt of Great Britain, will the Minister of Trade and Customs use his utmost endeavour to prevent the importation of phylloxera-infected produce into South Australia or any other part of the Commonwealth ?
– The honorable member for Boothby sent me a telegram on this subject some two days ago, and I furnished him a reply by letter yesterday. I understand that a consignment of onions is coming from Italy, and that the condition has been imposed that no onions from any district within 5 miles of phylloxerainfected ground will be admitted. The State Government is, I understand, to practically take control of the onions that are admitted, it being a tenderer for the supply of Government institutions who is importing them. Every precaution will be taken against the importation of phylloxerainfected produce.
Adelaide Telephone Exchange - Supply of Wire - Accounts Branch
– I wish to ask the Postmaster-General whether he will cause inquiries to be made concerning the hours, pay, and conditions under which telephone operators work in Adelaide; and if they are found to be below the standard agreed upon for girls working in Sydney, will he be prepared to raise the standard in Adelaide to the same level ?
– If the circumstances are the same, I presume.
– I am perfectly acquainted with the conditions that exist in Adelaide, and it is not proposed at present to make any alteration there.
– Some time ago I addressed an inquiry to the PostmasterGeneral for information with regard to the supply of wire for telephone and telegraph purposes in New South Wales. I shall be glad to know whether he is yet in a position to supply me with that information?
– No, but the matter is being proceeded with as quickly as possible.
Mr. GORDON (for Mr. Ryrie) asked the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are -
Japanese Fishermen at Fremantle - Northern Territory : Classification of Land : Surveyors : Aborigines - Australian Advertising in London.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are : - 1 and 2. The information at present available shows that there are seven Japanese fishermen at West Murray, who have been known to Europeans as residents for varying periods. I am having fuller inquiries made, and shall report the result to the honorable member when they are complete.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of External Affairs, upon notice -
What work has been performed in the Northern Territory by the Chief Surveyor and the two Land Surveyors in surveying agricultural lands ready for occupation?
What localities have been surveyed, and what area has already been marked off into convenient sections - and can a map, showing the position of such localities and the subdivisions already marked off, be placed on the table of this House?
Have any reports been received as to the nature of the land that has been subdivided ; and, if so, can such reports be placed on the table of this House?
– The answer to the honorable member’s questions is -
It is known that the surveyors are working on the subdivision of lands in the Daly River and Batchelor districts, but no plans are yet to hand. It is expected that the measurements will have been completed, and plans and all information available to enable lands for agricultural settlement to be advertised before the end of the year.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of External Affairs, upon notice -
Whether he has taken any action with a view to advertising Australian produce in London ; and, if so, how does the matter now stand?
– The answer to the honorable member’s question is -
In advertising the Commonwealth in Great Britain, the High Commissioner takes advantage of every possible opportunity for making comprehensive displays of Australian products, not only in London, but allover the country. Exhibits of our products are made at agricultural shows in the principal farming districts, on railway stations, and by means of travelling shows. Quite recently, our products have been displayed at the Bakers and Allied Trades and Grocers’ Exhibitions, at the Agricultural Hall, Islington. The Commonwealth is also represented at the Brewers’ Exhibition, the Dairy Show, and similar fixtures in London. Arrangements have been made for displays in shop fronts in various parts, and one now being made in a large window of a new arcade, adjoining the Liverpool-street Railway Station, is attracting particular attention.
asked the Attorney-General, upon notice -
Barton is a shareholder in the Colonial Sugar Refining Company ?
Crown against His Honour sitting on the Bench in connexion with the recent case against the company ?
– The answers to the honorable member’s questions are -
asked the Minister of Trade and Customs, upon notice -
Council that these grounds would be thrown open at times?
– The answers to the honorable member’s questions are -
asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are -
MINISTERS laid upon the table the following papers: -
Defence Act - Regulations amended (Provisional) Military Forces- Statutory Rules 1912, Nos. 195, 196, 197.
Lands Acquisition Act - Land acquired under, at Bondi Junction, New South Wales - For postal purposes.
Northern Territory - Ordinance No. 6 of 1912 - Thorngate Estate,
Public Service Act - Prime Minister’s Department - Promotion of F. Strahan to new position of clerk, 4th class.
In Committee (Consideration resumed from 15th October, vide page 4260).
Clause 349 -
The master of any ship requiring the services of a pilot shall receive on board the first pilot offering himself, and shall on demand by that pilot give the ship into his charge.
The master of any such ship shall not quit his station or anchorage within any port proclaimed as above without first receiving a pilot on board.
– I move -
That the words “ the ship into his charge “ be left out with a view to insert in lieu thereof “ the charge of piloting the ship to that pilot.”
Under the clause as it stands a captain would have to hand over the absolute control of the ship to the pilot, who would then become fully responsible. To this the captains of the big, liners object; they do not mind taking on the pilot and giving him charge so far as the piloting is concerned, but, apart from tnis, they think that the captain should be in charge.
.- Clause 352, which reverses the English law, provides that the master or owner of a ship shall not be exempt from liability for any loss or damage occasioned by the fault or want of capacity of a pilot, by reason of the fact that the employment of the pilot is compulsory. The Minister has intimated that clause 349, when amended, will modify this; but, if it does, the change must go beyond what the honorable gentleman desires. Personally, I do not think that the amendment makes the smallest difference beyond rendering the clause grammatically more correct. When a pilot is put in charge he, as a matter of common law, immediately acquires charge of the piloting of the ship ; and the amendment, as far as I can see, will make no difference in regard to the liability of the pilot or the master. In England, I understand there is much competition amongst the pilots, and the law is that the master shall accept the services of the first pilot offering. This, however, does not apply in Australia.
– Here the pilots take charge in rotation.
– I think the clause had better be omitted, excepting sub-clause 2.
– The honorable member may be correct as to “ the first pilot offering,” but I think the amendment I have moved is necessary.
– I doubt it, but there can be no harm in making the amendment. The law is that the moment the pilot goes on board he is in charge of the ship for the purpose of navigation ; and the alteration of the words proposed does not appear to me to make any difference. When pilotage is compulsory, the captain steps aside, except when there is obvious error, whenhe may give his advice; if the pilotage is not compulsory, the captain may interfere, and may at any moment take charge. Subclause 2 provides that the captain shall not quit his station or anchorage within a proclaimed port without first receiving a pilot on board, and I do not see why it should not be similarly provided that a captain shall not come in from abroad without taking a pilot, the pilotage in each case being compulsory.
.- I should like to ascertain whether it is the intention of the Minister to give effect to the recommendation of the Departmental Committee on Pilotage, and make a change in the law as regards the relation between master and pilot. I understood the Minister to say that he had a conversation with a master of a vessel who came over with one of the new big steamers, and complained that, by virtue of the law, as soon as the pilot came on board he had to hand over the whole control of his vessel to the pilot. This is a matter which is being discussed by those interested in the Old Country. The Pilotage Committee refer to it in this way -
We cannot regard with approval that a master of a large trans-Atlantic liner may be compelled, as has happened in one case brought under our notice, to take on board a pilot who has had no previous experience of a ship, of that size, and thereupon be entirely superseded by the pilot in the handling and navigation of his own ship.
Their recommendation was to the effect that the master should at all times be legally responsible for the handling and safe conduct of his ship, and that the pilot, whether he actually handles the ship or not, should be the master’s expert assistant. The law is rather complicated on the subject. Although the pilot is put in supreme control over the navigation under British law, there are circumstances in which the master is entitled to interfere and supersede the pilot. The general rule is that, a pilot, when in charge of a ship, has supreme control over the navigation of the vessel, the master of the vessel must not interfere with the pilot’s authority, and the “ commands of the pilot must be implicitly obeyed, for to him belongs the whole conduct of the navigation of the ship, for the safety of which it is important that the chief direction should be vested in one only.” That is in accordance with a judgment which will be found cited in the Encyclopedia of the Laws of England, vol. 10, page 78. Of course, if a pilot is drunk or manifestly incapable of duty he can be superseded. If there is a plain prospect of danger to a ship in a particular course, it is the duty of the master not to allow it to be adopted ; for instance, getting under way in a fog, or he and his owners would be liable for any consequences. It, is this unsatisfactory position of the law in England, and the difficulty in which the master is placed that possibly led the captain referred to by the Minister to speak to him as he did. I understood the Minister’s intention was really to effect an. alteration in the law to preserve the command of the captain in the handling of his boat, and confine the duty of the pilot to that of an expert assistant, as recommended by the Committee. That would seem to be the intention, from the fact that an alteration of the law as regards liability is proposed in clause 352, with which this clause is interwoven. If it is intended to effect an alteration of the law on the lines I have suggested, I very much doubt whether the words proposed to be used in the amendment to this clause will effect the purpose. It provides that -
The master of any ship requiring the services of a pilot shall receive on board the first pilot offering himself, and shall, on demand by that pilot, give the ship into his charge.
There is no reference to the general law upon the subject, or any alteration in the position of the captain. I merely ask the Minister at this stage to look carefully into the clause, and if he really intends to make an alteration in the law, to get the opinion of the draftsman as to whether the clause as worded will accomplish the object he has in view.
– As the honorable members for Angas and Darling Downs have said, this clause and clause 352 are’ interwoven. The Maritime Convention recommended that the immunity of the master or owner of a ship, when pilotage is compulsory, should be abolished.
– It was never enacted.
– It was proposed to insert a clause making the owner liable for damage caused by the fault or incapacity of a pilot, and a. provision defining the legal position of master and pilot. That is in the report of the Pilotage Committee to which the honorable member for Darling Downs has referred. Clause 352 is in accordance with article 5 of the International Maritime Convention on collisions and salvage. It was agreed to by practically all the maritime powers of the world, and was to come into force on the 1st October of this year, so that it is in force at the present time. Article 5 provides that -
The liability of the preceding articles attaches in a case where a collision is caused by the fault of the pilot, even when the pilot is carried by compulsion of law.
I understand that Great Britain has not come into line with the other maritime powers in this respect. I believe that Great Britain is delaying the enactment of this provision with the object of securing the accomplishment of some other purpose, a course which is, perhaps, not unusual in the arrangement of treaties and conventions. Great Britain, who was a party t© the Convention, gave effect to most of the articles in the Maritime Conventions Act of 1 91 1, but article 5 has not been given legal force, as Great Britain is withholding it in order to obtain certain concessions in a further international convention now being negotiated for in connexion with owners’ liability. On the question of the abolition of the defence of compulsory pilotage, Sir Norman Hall, speaking on behalfof the ship-owners,: pointed out that the Liverpool Steamship Owners’ Association had made their assent to the principle of the abolition of the defence depend entirely upon a satisfactory international agreement being arrived at in regard to ship-owners’ liability. I take it from this that the ship-owners are willing to give up the defence of compulsory pilotage providing a satisfactory agreement is arrived at by the different maritime nations with respect to ship-owners’ liability.
– Whatalteration will it effect in the existing law ?
– Our object is to make it clear that the captain will still be in charge of his ship when the pilot is on board, and that the pilot will be responsible only for the pilotage of the vessel. In the case of the Australia, which was wrecked on the Corsair rock, it was stated that the captain of the vessel prior to the accident pointed out to the pilot that the latter wasrunning into danger, and the pilot replied that he was in sole charge of the vessel. That was the evidence which was elicited at the inquiry, and this amendment is intended to make it clear that a pilot boards a vessel only for the purpose of piloting, and does not assume sole control of it.
.- The Minister evidently thinks that by effecting a mere change of words the existing law can be altered. I do not think so. I find, that in clause 340 the words used are “ if a pilot attends on board to pilot any ship.” Those words, too, are used in the English Act. Under the common law when a pilot boards a vessel he takes charge of her. Section 633 of the Merchant ShippingAct of 1894 provides -
An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law.
In other words, he is in charge of the ship so long as he is employed as its pilot.
Whenever he attends to pilot any ship he is “ in charge “ of that ship. I fail to see how, by the amendment, the existing law will be altered. So much has been said regarding the need for the amendment in order to protect the captains of vessels-
– The captains feel that under the amendment they will be a lot freer.
– I am afraid the change contemplated is a dangerous one.
– However much we may alter this clause, I do not think it can affect the position under the existing law. The law to-day is that the pilot is in charge of any ship from the moment he boards it, though he never absolutely supersedes the master, and for very obvious reasons. Danger and risk always exist at sea, and will continue to do so until the end of the chapter. But these risks may be covered by insurance on the part of the owner. If we alter the clause I do not think we shall make any difference to the law as it stands to-day, because to a large extent it is judge-made law. Reference has been made to the fact that the pilots deputed to board the largest class of vessels visiting Australian waters should be thoroughly conversant with the handling of that class of ships. I thoroughly agree with that view. But thepresent difficulty may easily be overcome by the Government providing for the classification of pilots. It is obvious that the same skill is not required to bring a sailing ship through the Heads as is needed to safely pilot an ocean-mail steamer into our harbors. In South Australia only certain pilots are deputed to pilot our mail steamers in and out of the harbor, and that system works very successfully. The men who have been chosen for this work take it in turns, because the owners might have an objection to a certain man always boarding their vessels, not because of his unskilfulness as a navigator, but for other reasons. Quite recently I saw a. mail steamer enter the Outer Harbor at Largs Bay without a pilot. Her captain would not wait for a pilot to board the vessel. We require to be very careful not to lay on the Commonwealth a liability which is not laid upon the authorities in the Old Country. I cannot call to mind a case in which a Trinity House pilot has been mulcted in damages for any accident which has occurred while he has been in charge of a vessel.
– The object of this amendment is to make the clause complementary to clause 352, and to declare the liability of the master and owner of any ship in charge of a pilot. The present state of the law is most unsatisfactory. No captain knows now under what circumstances he may assert his authority as against that of the pilot. It has been held that nothing less than a disaster, immediate and almost irreparable, will justify a master displacing the pilot on his ship. It is not sufficient that in a little while that disaster may come, or that there is an error of pilotage; the master may not be called in and exercise his authority until it is practically too late for him to do anything. That is a most unsatisfactory position. The maritime nations have agreed by convention to a uniform law. Great Britain is a party to the convention. It is true that she has not given legislative sanction to it, but she has bound herself, and there will now be a uniform law, observed by all the maritime nations, that the liability of a master is not removed .and his responsibility not extinguished by the presence of a pilot on board his ship. The pilot’s liability, however, is not extinguished. He is called upon under this Bill to exercise all the skill of which he is possessed. If he fails to do so, then upon his shoulders must rest the responsibility for any accident. The master’s liability is now to be fixed and definite. He will know when he may exercise his authority, and the stage at which he may exercise it is when he thinks, as an expert in navigation, although, perhaps, he is not an expert in the narrow waters through which he may be passing, that there is danger to his ship. He may then take control.
– I do not think that he has that power under this Bill.
– I am perfectly sure that the existing law is what I have stated it to be. At the present time no interference by a master is justified unless his ship is practically on the point of immediate disaster. That state of affairs is most unsatisfactory to the master and the public. The liability of the master, and the point at which he can interfere now, is at any moment when he thinks there is in any sense faulty pilotage. We are now coming into line with Great Britain and the maritime nations generally in this respect. I think that if the law as it is were fairly satisfactory - and it is not satisfactory - that qf itself would be a sufficient reason why we should adopt the uniform practice,but when the present state of the law is so unsatisfactory, I think we should not hesitate to adopt the proposals in this Bill.
– The statement made by the AttorneyGeneral as to the unsatisfactory position of the master of a ship under the present law is undoubtedly correct, but the position is not as suggested by the honorable member for Hindmarsh. As the report of the. Departmental Committee on Pilotage states -
According to English law, the position of a compulsory pilot is that he is solely in charge of the navigation of the ship. He supersedes the master in all matters connected with the navigation of the ship. He is entitled to have all his orders promptly and diligently carried out, and any neglect in this respect, or any interference with him in the performance of his duties, will, in the case of an. accident resulting, make the owner liable. The master is not allowed to interfere with the pilot except in extreme cases of the latter’s manifest incapacity to take charge of the ship, and to judge when such occasion has arisen is a matter of great difficulty. To quote the words of Sir Kenneth Anderson, “As the law stands, the pilot being absolutely in charge and over the captain, intervention places upon the captain an almost intolerable responsibility. He must be able to show so incontrovertible a case for intervention as to create a probability that he will not interfere until it is too late.
– Then if this carries out our object we shall be strengthening the position of the captain.
– Our complaint is that it will not, as a matter of drafting, do what the Government intend it to do. It simply sets forth that which a master has to do to-day under the common law. It does not declare any alteration in the law.
– Clause 352 modifies, the common law.
– That relates only to the liability for damages, whereas under this clause we are dealing with the question of the control of the ship. It is now proposed that the law with respect to the liability of compulsory pilotage should be altered. A compulsory pilot cannot be said to be the servant or agent of the master, since he is compulsorily taken on board. It is said that we should make the master responsible - give him complete control over his ship, place the pilot in the position of an expert assistant, and make the owner liable because the master is placed in control.
– It is very possible that we may be bound or that we may have an opportunity to bind ourselves with regard to the convention.
– I agree to that. I am simply referring to the question of drafting. All that we are providing in this clause is that when a pilot goes on board a ship the master must give him charge of its pilotage. That leaves us where we are under the general law.
– All the better.
– Do we intend to alter the existing English law ?
– We cannot alter a judge-made law.
– We can certainly do so by Act of Parliament.
– Will the honorable member be satisfied with an assurance that, if the amendment is passed, and we find it does not give us the power, and does not distribute’ the liability as agreed to in the Convention, we shall bring the clause down again in order to amend it?
-That is all I ask the Attorney-General to do, if he desires to effect an alteration in the present law in the United Kingdom.
– We desire to fall into line with Great Britain in this respect.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 350 agreed to.
Clause 351 -
.- I am afraid the clause will not work out in practice as the Minister thinks it will. On the face of it, it seems to limit the liability of the pilot to£100, and I understand it has been in operation in some States where pilots are not exactly Government servants in the same way that they are in New South Wales. It may suffice for their protection in those cases, but I have never known any case under the New South Wales system where a pilot has been held pecuniarily liable to any agent or ship-owner for loss or damage sustained by a ship. In New South Wales the pilots are Government servants in the true sense of the word, and are subject to the pains and penalties imposed by their
Department for negligence or wrong-doing. This clause will add to those pains’ and penalties another form of punishment in the case of minor accidents. In a busy port like Newcastle, where the weather conditions are frequently not too good, the pilots are often asked to move ships about the harbor from place to place, and a ship before she is completely loaded with a cargo of coal may have to be moved four or five times. A pilot may hesitate to take any risk if he knows that any slight bump may penalize him to the extent of any sum from £10 up to £100. I can quite imagine that where agents want coal taken away and ships moved about, they will not think anything of asking a pilot to take a risk of being fined for any slight damage that may be occasioned by a knock in moving the ship backwards and forwards. The pilots have to work for yearly salaries ranging from£240 to a maximum of about £400, so that this is a serious matter to them. The limit of £100 is not a limit of the amount that may be deducted from a pilot’s salary for any one year. It is simply a limit of £100 for damage caused by a pilot at any one time, or to any one ship. From my knowledge of the practical working of a harbor like Newcastle, I can quite imagine that these men will be in the Court most of their time defending themselves against actions for damages caused by alleged negligence. Remember, too, the position the pilot is in. If any accident does happen, through the pilot’s order not being obeyed, or through the very opposite of his order being carried out - if, for instance, the engineman below goes astern instead of going ahead - the pilot stands there alone, and there are always the combined officers of the ship available to give evidence on behalf of the company against him if it comes to an action for damages. The pilots ought to be protected by the Government to the fullest extent, and treated in every way as other public servants are treated. Under sub-clause 2 the Commonwealth accepts no responsibility. Why, then, should it ask the individual pilots to accept a monetary responsibility? We ought simply to say, “We, the Commonwealth, offer you a pilot to conduct your ship into or out of the ports of Australia. Having offered him, we accept no responsibility, but we shall punish him as provided for in other parts of the Bill for any negligence, carelessness, or drunken- mess on his part.” Every civil servant is subject to punishment by his Department, and a pilot should not be put in any different position.
– Other civil servants can have their positions reduced, but a pilot cannot. He is either a pilot or nothing.
– His position can be reduced. I have known such cases.
– Reduced in salary?
– Yes, in various ways. I have seen men taken from the “big harbors and. sent up into the rivers, to become practically nothing more than -boatmen. I have known them to be suspended for a month. One was fined £100 by the Department a week or two ago. That was a reduction of his year’s salary, -surely. I do not object to the Department having a strong hand over the men, and seeing that they do their work properly, but I object to their being subject to the will of any agent or other person who may induce them to move a boat when weather conditions are not good, and then proceed against them for damages. Does the Minister know what a knock to an iron steamer might mean to a “pilot? It might cost anything from £”jo to ,£100 to replace a dented iron plate. A very slight accident may cause damage to that extent. It is an unfair position to put the pilots in once they are brought under the control of the Government as public servants. I can quite understand a clause of this kind applying to a port like Melbourne, where the pilots occupy a totally different position, or to the Torres Strait pilots, who operate differently from those who come under Government control. These men are a sort of corporation, and earn - and good luck to them, though I do not think that they earn a penny too much for the work they do - far more money than is paid to State pilots. I can understand a corporation like that having the protection of this £100, but it is unfair to subject the worst paid of any Government servants, having regard to their work and their responsibility, to pains and penalties of this description at the will of an outside body.
– It might be the Public Service Commissioner or the Marine Board who would fix the amount of the penalty.
– It is. left open to the owner of the vessel and the agent.
– No, they would not fix the amount.
– It is an ordinary common law action for damages.
– That is what I contend.
– The case will go before the Small Debts Court if the amount is small, and before the District Court if the amount is large. It is .the person injured who will start the action.
– The omission of the clause will not strengthen the position of the pilots.
– It will.
– No, the pilot will be liable for the whole amount of the damage if the clause is omitted.
– The best course will be to knock out the clause.
– What the clause does is to limit the pilot’s liability. Clearly it can have no other effect than that.
– The clause frees the Commonwealth from liability, but leaves the pilot subject to liability. I want the pilots to be the servants of the Commonwealth, and the Commonwealth to be liable like any other -employer for the mistakes of its employes. That is the only position in which we can fairly put the pilots. As the honorable member for Darling Downs has pointed out, the owners of ships must certainly proceed against the pilots. I can state from my own knowledge, that if every accident which happens is taken up, the pilots will be called upon to do nothing else but fight actions in the Court. How will they be able to do that on salaries ranging between £200 and ^300 a year? The clause is bad, and wants re-drafting in some way. I think that the proper course is to negative the clause, and to let the Government accept the responsibility for the actions of their own servants in this regard. I intend to take some action if the clause is not made different from what it is.
.- As this clause was fully discussed the other night, I do not wish to take up much time in reiterating what I said then, but I hope that the Minister in charge of the Bill will see his way to eliminate that part of section 351 dealing with pilots. There is no doubt as to the effect which its enactment will have in regard to the shiftping in different ports, more especially in Newcastle. I venture to say that if it is allowed to stand as it is, a great in- * justice will be done to the shipping community in Newcastle, and also to the collieries, through the pilots refusing to shift boats when there is any risk at all, and that risk, I may say, occurs very frequenly Newcastle is not the best harbor in the world. It is fairly open to the sea, and rough weather outside or a flood in the river may prevent the operation of moving boats. If we pass this clause the pilots’ will not take any risk, nor can we expect them to do so. They will probably deem it better to draw their salaries and to do nothing while the harbor, is, in their opinion, in an unfit state for shifting boats. Therefore I think that it will be wise to eliminate the clause. The lawyers in the Committee think that it will be an advantage to the pilots to maintain the clause, but I, as a layman, do not take that view. It is strange that in the case of Queensland, New South Wales, and perhaps other States no such provision is to be found in the Navigation Act, nor has there ever been an action taken in those States against a pilot for damages sustained in connexion with the removal of a boat, even though there may have ‘been negligence on his part.. There is provision in New South Wales which permits the Departmental head to punish a pilot who has been guilty of neglect, either by fining him or by suspending his certificate, and if the circumstances warrant it, dismissing him. I- consider that this is sufficient to meet the case in connexion with the Commonwealth. The Department can draw up regulations controlling the pilots and every one else in its service, and whoever is in charge, probably the harbor master, will carry them out, and. in that way have sufficient power to punish pilots guilty of neglect, and also maintain efficiency in the service. Unless this clause is eliminated a pilot will be liable to two forms of punishment - to a fine, or the suspension of his certificate, probably lowering him in his position, and, in addition to that, he will be liable for damages in an action for having caused damage to a boat. The provision will induce ship-owners to take action against the pilots. Probably no ship-owner to-day considers that he has a right to take an action against a pilot for damage done to his boat, but if a ship-owner finds this provision in the Navigation Act the first thing he will do will be to consult his solicitor, and the Court will be called upon to fix the amount of the damage, which Hie pilot probably can ill-afford to pay, because with the salaries that these men receive it takes them all their time to sup port a home and make ends meet. I feel sure that the clause if passed will work detrimentally to the interests of at least Newcastle, if not other ports in Australia. I take it that it will be the Marine Court which will deal with the case at the instance of, I presume, the harbor master or some other person in authority. What will be the position when an accident to a boat is reported ? The person in authority will come to the conclusion that the pilot has been guilty of negligence. He will not be satisfied to deal with the case himself, but he will send it on to the Marine Court, and there it will be dealt with as an action for the recovery of damages, the pilot being liable in addition to the fine which may be imposed, or> other disability which may be inflicted. I would not for a moment urge the elimination of this clause if other provision was not made in the Bill to deal with anybody guilty of negligence through drunkenness or neglect. Any man who is negligent in the performance of his duty should suffer. In many cases if negligence is proved the man should be dismissed from the service. The Bill- takes ample power to deal with such cases without this clause at all. We are really asked to provide for a double penalty. Is the object to offer an inducement to those who are concerned to take action for the recovery of damages against the poor unfortunate pilots ? In every case the pilot may not have made a mistake. There may be some reason to account for the accident ; he may have only a few yards in which to work the ship in going to a crane, and some little hitch may occur permitting the ship to collide with another and thus cause damage^- this happens frequently in rough weather in Newcastle - the outcome of which may be an action for damages. It is a very unfair position to put the pilots in. I do hope that the Minister, in view of what has been stated, will see his way to eliminate the clause, and if he does I feel confident that there will never be any action for damages taken against a pilot because a discretion, will be left, as at present, to those in authority to deal with the pilot, whenever it may be considered necessary, for any neglect of duty
– The honorable member for Hunter, the honorable member for Newcastle, and other honorable gentlemen who oppose this clause seem to overlook the fact that we propose, in clause 342, according to the understanding arrived at in Committee, to alter entirely the present custom and practice, and to put the liability and the responsiblity of the charge of the ship, not on the pilot, as at present, where the master has no right to interfere, but on the pilot only, subject to the authority of the master. That, I submit, alters the position entirely so far as the liability of the pilot is concerned. At present, if the master of a ship tells the pilot to hurry, or should the pilot think that there is not quite sufficient room in which to move her, “ to chance it,” the pilot is nevertheless responsible at common law for the consequences. He is not relieved of responsibility because of anything that the master may say to him ; but under the Bill the liability will not rest on the pilot when the master interferes in any way. Although some honorable members seem to think that the clause increases the liability of the pilot, in my opinion its effect is exactly the opposite. At common law the pilot is liable for damage arising through his neglect or want of skill, whether he be a public servant or not, and there is nothing to prevent an action being brought against him, though there may not have been such actions in New South Wales. Actions have been brought against pilots in Victoria, but, of course, they would not be brought except in a very gross case. The mere scraping of paint would not give ground for an action, or, if an action were brought where the damages were only trivial, it would not succeed. Having carefully considered the law in this matter, I say that the pilot is better off under the clause than if the clause were struck out, but if the Committee does not desire that there shall be a limitation of the liability of the pilot, we are prepared to strike it out. As to the liability of the Commonwealth, it should either extend to the whole of the damage done or be non-existent. It would be absurd for the Commonwealth liability to be limited to£100, when the damage done might amount to£60,000. Under the Bill the Commonwealth will not be liable, and I think it should not be liable, because it must be presumed to take all reasonable care in the selection of skilled and proper persons to act as pilots. It may be that some pilots may be guilty of neglect, or cause disaster by the sudden failure of vision or sudden mental or physical collapse. This the Commonwealth could not prevent by even the most vigilant supervision, it being a thing beyond human control. We propose to make the master liable and responsible for the navigation of the ship, the pilot being merely a skilled assistant taken on board for a special purpose. Having done all we can for the safe conduct of the ship from the entrance to the port to her wharf, buoy, or anchorage, we should not be held liable for any accident.
.- In England, where there is compulsory pilotage, the owners are not liable when accidents occur, but so that the persons who suffer loss may have a remedy, the pilots are liable to the amount of £100. It would be unfair that no one should be liable, and a pilot, therefore, is bound by a bond to fulfil the obligations of his office, these obligations being imposed on him by the terms of his bond. Under the Bill, no bond is provided for. If in England a pilot, the conditions of whose services are prescribed by a bond, is guilty of negligence, he is liable, not only under the penal provisions of the Act, but also to be sued for damages not exceeding£100, no matter how many actions may be brought. Under our law there will be some one liable in any event, that is, the owner, and we could not very well make the Commonwealth liable as well. Seeing that the pilots will be public servants, it might be logical to make the Commonwealth liable, but as we are throwing the liability on the owners of the vessels, notwithstanding that we make pilotage compulsory, we cannot give to those who suffer loss rights of action against two sets of persons. An Aus-, tralian pilot will be in a better position than an English pilot. In all cases an action may be brought against an English pilot when damage is done, because there is no one else who may be sued.
– An Australian pilot will be in a worse position, because persons may come at him every week.
– A pilot who rendered himself liable to action every week would not long remain in the service.
– An English pilot is liable in every case in which damage is caused through his negligence, but£100 is the limit of his liability. If a pilot in England is guilty of six acts of negligence, he may be liable to the extent of£600. Here his liability is similarly limited. But there may be different liabilities arising out of the piloting of different vessels.;
The distinction in substance is this : In England you may sue the pilot because you have no one else to make the defendant. Here, as long as the owner is capable of “ stumping up,” no one will go ;against the pilot. Where an accident occurs on a railway, the engine-driver, if negligent, is responsible in damages. So are the Railways Commissioners. But the engine-driver is never sued, for the simple reason that persons injured can always- get satisfaction from more solvent persons - the Commissioners. We have, therefore, for the pilot the comparatively effective protection that there is some one else out of whom persons injured can get damages. If we strike out sub-clause (i) we shall be leaving the pilot liable for the full amount of damage, although he may still be protected by the fact that the owners are likely to be mae responsible, and he may not be sued. What the honorable member for Newcastle ought to do, if he wants to protect the pilot, is to declare that the pilot shall in no circumstances be liable in damages for negligence. This is the only way to protect him. But if we strike out subclause (i), we shall undoubtedly be striking out the protection of the pilot, which limits his liability to £100. There is a doubt as to what that liability really is. It arises from this fact: There is no provision here which would declare that the pilot’s total liability in connexion with any accident is ,£100. Fifty persons may be injured in a shipwreck caused by negligence, and each of them may bring an action. Is the -pilot liable in every case ? Can he be sued up to the limit of £100 by , every person injured because of his negligence in one collision? If fifty persons are injured, it may be that his limitation of liability is not £100 but £5,000. I can see nothing in clause 351 to lead to the assumption that the* total liability of the pilot in any case in connexion with an accident is limited to £100. The matter is fairly clear in England, and I hope that it will be made more clear here. A matter that may render the position of the pilot slightly troubled is this: if clause 352 does not carry out its object by making the owner liable, it will mean that, inasmuch as only the pilot is liable, subject to the limitation, every action will be taken against the pilot. On a previous occasion, speaking of clause 352, I suggested some reason for my opinion that the clause does not’ create any liability in the owner at all. It professes to do so, but as the owner is exempt from liability unless it is shown that he is liable, although there is compulsory pilotage, thisclause may not in any way affect his liability; and the theory of the common law is that if there is compulsory pilotage heis not liable. Nor does this clause say that the compulsory employment of a pilot negatives the assumption that the owner or captain can be liable. Does it say that he is not liable? I doubt it. The matteris a difficult one, and I hope that theMinister and the Attorney-General will again consider the conjoint effect of clauses- 351 and 352. If clause 352 does make the owner liable for the negligence of thepilot, as well as for his own, we have nothing to fear from retaining clause 351 asit stands, unless it means that there may be as many actions as there are personsdamnified; and if there are, the limit of £100 is in each particular case only, and’ not by reason of the total damage sustained! by the accident.
.- There may be some justification for reconsidering the clause if we are going to alter the relation between the master and the pilot. If we are going to make the master supreme in command and the pilot an expert assistant, there may be some justification for the plea put up by the honorable member for Newcastle. As the Attorney-General’ has pointed out, the intention of the clause is to limit liability to £100. But I donot think that the mere striking out of the clause will be sufficient. The matter wasraised recently in Queensland as regards the liability of the Crown for pilotage and1 the liability of the pilot. Considerable doubt was expressed even as regards theCrown’s liability, although actions were instituted, and I believe that in one instance the Crown did pay .£5,000 compensation. That was in the Waitara case. The matter was reviewed again as regards the liability of the pilot and the liability of the Crownfor pilotage, and last year the Queensland’ Parliament passed an Act dealing with thesubject. If the honorable member for Newcastle wants to carry out his intention,, he had better not strike out the clause, because the effect of doing so would be whatthe honorable member for Angas has suggested.
– If a small craft were rundown, the owner of it might be absolutelyruined, and would have no claim at all. Other interests have to be considered besides those of the pilots.
– The matter is by no means free from doubt. When a small boat is run down by a vessel upon which there is a pilot compulsorily employed by law, should the owner be responsible for the injury done to the small craft?
– I remember a case at the mouth of the Yarra where a man whose boat was run down was absolutely ruined.
– That man certainly ought to have had a remedy. Where an innocent person is injured by another the injured person should be able to claim compensation. I shall read what has been provided in Queensland, because, no matter what our views may be, we desire, in Committee, to help each other to carry out the intentions desired to be accomplished. Section 2 of the Queensland Act of 191 1, “To amend the Navigation Acts 1876 to 1896,” provides -
No civil remedy shall lie against any pilot in the employment of the Crown, as represented by the Government of the State of Queensland, for or in respect of any damage or loss occasioned by his negligenceor want of skill, or otherwise for any act, default, or omission as a pilot while in charge of any ship or vessel.
That is a distinct declaration. Subsection (2) provides -
The Crown, as represented by the Government of the State of Queensland, shall not be liable for or in respect of any damage or loss occasioned by the negligence or want of skill of any pilot, or otherwise for any act, default, or omission of any pilot while in charge of any ship or vessel.
That section carries out the intention. I think the intention ought to be made clear in this Bill that, if an innocent person is injured in such circumstances as the Bill describes, he ought to be able to get compensation. If a ship with a compulsory pilot runs down another ship which is moored where by law it is required to be, the innocent injured boat ought to get compensation from some one.
– I think so, too.
– -The whole question is whether we shall make the individual pilot liable for his negligence.
– The better way would be to adopt the Queensland section so far as the liability of the pilot is concerned, and leave sub-clause 2 as it stands.
– That would do.
– That would be a good position for the pilot.
– I think so. If the Committee omits the clause dealing with the liability of a pilot, it ought to be perfectly understood that, while we remove the liability from the pilot, the intention is not to relax in any way. our control over him, or that his duties shall be carried out any less efficiently. I would not hold that a man should be guilty of an indictable offence merely for showing want of skill. If we have licensed a man we have admitted his skill, and all that we can justifiably do is to punish him for neglect of duty. At the same time, ill health or other unforseen causes may cause him to lose his faculties, and then he has to be superseded.
– A sick man should not be on duty.
– Or in any place of responsibility. There was a case in Queensland in which a pilot was suspended for three months as sufficient penalty.
– If a captain causes an accident his certificate is cancelled.
– And if a pilot causes an accident in a way showing want of skill or neglect his licence should be cancelled.
– I agree with that, but those are departmental punishments.
– If a captain loses his ship, he, poorfellow, never gets a chance again.
– If an unfortunate pilot has been deprived of his licence and dismissed I do not know that he would have sufficient assets to justify an action for damages against him. In England, I understand, the result of such action has been to make pilots bankrupt; and that is a very hard position for them to be placed in when they have been deprived of their means of livelihood.
– Knowing the liability the pilot there never has any property!
– Such a man is not of the high class we desire to see here - a man who, knowing that he has a liability, goes behind his creditors and secures himself by transferring his property.
– Plenty of lawyers do just the same !
– That is not so; lawyers, like the honorable member himself, have a high sense of their office and its duties. We must so adjust all equities and liabilities as to do justice to all the parties concerned while preserving full control in regard to discipline over the pilot. It is in this way that we can insure that those intrusted with great responsibilities will carry out their duties to the credit of the Commonwealth.
– Does the Minister propose to accept the amendment?
– I are prepared to postpone the clause. The amendment would have the effect of altogether altering the position of the pilot; and the Public Service Commissioner would be largely guided bythis fact in fixing their salaries. It is proposed to contract the pilots out of all liability.
– I do not think the Public Service Commissioner ought to take that fact into consideration.
– I certainly think he ought to.
– It is only imposing the liability in an indirect way.
Clause 35 a (Immunity of owner when pilotage is compulsory).
.- It is doubtful whether, while increasing the liability of the owners, we are giving them any greater control in the case of compulsory pilotage. I suggest that an amendment should be made providing that the owner or master of a vessel shall not have his control of a vessel affected by reason of the fact that the employment of a pilot is compulsory. This would place the owner or master in the position of a man who voluntarily takes on a pilot, and may at any moment resume command of a vessel. If a captain or owner is to be liable for damages he ought to be placed in that position.
Clause agreed to.
Clauses 353 to 355 agreed to.
Clause 356 - (1.) Upon the commencement of this Act, all steam-ships, boats, buildings, plant, and property belonging to the licensed pilots for any port in Australia, and used by them exclusively in their business as pilots, shall become the property of the Commonwealth.
Amendment (by Mr. Tudor) agreed to-
That the words “ Upon the commencement of this Act “ be left out, with a view to insert in lieu thereof, “ Upon the proclamation of any port as a port at which the employment of a pilot shall be compulsory.”
Amendment (by Mr. Tudor) proposed -
That the words “ any port in Australia” be left out,with a view to insert in lieu thereof “that port.”
.- I understand that in this case the pilots desire that their property shall be taken over.
– They have no further use for it.
– At the same time I think it is very doubtful whether we have power ot compulsory acquisition over things that we can get otherwise ; take, for instance, boats which the Commonwealth could make quite as well as they could obtain them by acquisition from the pilots. The general law is that we can compulsorily acquire land under what is known as the right of eminent domain, which merely means resuming what was the property of the Crown ; but, inasmuch as the power might be doubtful under Commonwealth arrangement, we take express power in section 51 of the Constitution to acquire property for any purpose in relation to which we can legislate. It would be a wide expansion of that power to say that when we are legislating in respect of any one we can take over any of his property for the purposes of our legislation.
– Does the honorable gentleman say that the clause is unnecessary ?
– I do not object to the clause passing, but I am pointing out that our power of the acquisition of property of any kind is doubtful. We must have the power to acquire land, because there is only one piece of land in a particular instance that we require, but in the case of property the matter is altogether different. The power to interfere with private rights is limited, and it is expressly stated that it is in America.. As a general proposition under the law of eminent domain, it is stated -
It has been already explained that all lands were originally the common property of the human race ; necessarily so, since the land is the free gift of nature, and not the product of man’s labour.
We all agree with that.
Every species of real property may be taken in the exercise of the right of eminent domain.
They put a very strict limitation in America for Congressional, purposes, and the purposes of a State, upon the power of acquisition. Where what is required cannot be had otherwise, there is of necessity and incidentally the power of acquisition ; but to say that we have the power to acquire property which may be manufactured from moment to moment is a very wide extension of our powers of acquisition of the property of the community. I do not do more than mention the matter now, because really throughout our legislation we are assuming that any class of property may be taken over for any purpose in connexion therewith. Proclamations were issued recently for the wholesale acquisition of properties, some of which will probably not be used for years.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 357 (Establishment of Courts of Marine Inquiry).
. -I do not know what position we shall be in when this clause is passed. There are Marine Courts in the various States. There is one in New South Wales which is practically similar to the one we are constituting here. We are assuming this power under, I think, section 478 of the Merchant Shipping Act, which reads -
The Legislature of any British Possession may authorize any Court or tribunal to make inquiries as to shipwrecks, or other casualties affecting ships, or as to charges of incompetency or misconduct on the part of masters, mates, or engineers of ships, in the following cases -
The section then goes on to specify the cases. Our powers of constituting Courts in this matter are apparently derived from the Merchant Shipping Act.
– Could we not create a Federal Court and then vest it with Federal jurisdiction?
– The matter I am dealing with at present is that every British possession has the power, under the section of the Merchant Shipping Act I have quoted, to create these Courts. Unless we have the power of creating these Courts for the purpose of the commerce power, which is more limited, within the scope of this measure, we cannot supersede the Courts of the States, because they have also the express and direct power under the Merchant Shipping Act to create these tribunals for the purposes of their jurisdiction. If the various States choose to continue their tribunals, we shall have, in the various States, Courts established to accomplish exactly the same objects as those for which Courts are to be established under this Bill, and it may be that Courts similarly constituted by the States and by the Commonwealth will be sitting at the same time. It is provided in the Merchant Shipping Act, which is the source of their authority, that where an inquiry has first taken place in a particular Court in a British possession, another Court is not to hold a further inquiry into the same matter. So that if a State Court gets in first in a matter in which the Commonwealth is concerned, the Commonwealth will be functus officio, and can do nothing. The more one studies this Navigation Bill the more one is faced with a series of questions, to which I am afraid I cannot suggest a solution. There is likely to be a clashing of jurisdiction and a duplication of Courts. This is a more substantial matter than the Minister may conceive, because at the present time in South Australia a Bill has been drafted, though I do not know whether it has yet been introduced, to reconstitute the whole relations of the Marine Board.
– I suppose it will be subject to the passing of this Bill.
– No, they claim jurisdiction independent of what we do. We are not proposing to cover the whole field of jurisdiction in this Bill. Clauses to be proposed subsequently by the Minister imply some limitation of jurisdiction according to the decision of the Kalibia case. Something is left to the States, and they may claim jurisdiction in respect of wrecks, for which we are legislating in this part of this Bill.
– We should take the power to hold inquiries.
– I suppose we must do so, but I am disposed to think that the position of the States, and our position under these clauses, will be very complex.
Clause agreed to.
Clauses 358 to 364 agreed to.
Clause 365 - (1.) A Court of Marine Inquiry shall have jurisdiction to make inquiries as to all casualties affecting ships, or causing loss of life on or from ships, and as to charges of incompetency or misconduct on the part of masters or officers of ships, in the following cases, namely -
.- The same question arises here as that to which I called attention on clause 357. It is not necessary that I should elaborate the matter again. The marginal note to the clause makes a reference to section 478 of the Merchant Shipping Act, which I have already mentioned. I see that the Minister has added paragraph (g), which is not to be found in the Merchant Shipping Act, and it provides for an additional subject of inquiry. It reads -
Where any ship is lost, or supposed to have been lost, and any evidence is obtainable in Australia as to the circumstances under which she went to sea or was last heard of.
I cannot see that we have jurisdiction in that matter. We establish our tribunal under the direct authority of the Merchant Shipping Act, and inasmuch as that authority does not extend to the matter mentioned in paragraph (g), it may be that this is beyond our powers. If the whole clause were omitted it would not, I think, affect our powers.
Clause agreed to.
Clauses 366 to 371 agreed to.
Clause 372 (Power to award costs).
– I think we ought to make perfectly sure that a Court of Marine Inquiry shall have power to award costs against the Crown.
Clause agreed to.
Clauses 373 to 376 agreed to.
Clause 377 (Cancellation or suspension of certificate). .
– I propose to omit this clause. It is one of those provisions to which exception was taken by the Board of Trade, and I think it caused as much controversy as did any other clause in the Bill. We may with advantage omit it.
Clause 378 -
A Court of Marine Inquiry shall, when required to do so by the Minister, inquire into any charge of incompetency, or failure of duty, or drunkenness, made against any coastal pilot, or any person holding a pilotage exemption certificate, . . .
Amendment (by Mr. Tudor) agreed to -
That the word “ coastal “ be left out, with a view to insert the word “ licensed “ in lieu thereof.
Clause, as amended, agreed to.
Clause 379 agreed to.
Clause 380 -
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, either -
in the place in which it actually was committed or arose ; or
in any place in which the offender or person complained against is.
.- The clauses in this part of the Bill appear to be very wide. They seem to me to be a copy of the provisions of the Merchant Shipping
Act. Indeed, a number of them might with advantage be omitted, because they will apply to us whether we enact them or not. There are provisions in this Bill which would apply to us if the were omitted, and there are other provisions in the Merchant Shipping Act which have been omitted but which will nevertheless apply to us I would point out that unless we copy so largely from the Merchant Shipping Act as to make the Bill a guide in all cases, it will be very deceptive. In adopting these provisions from that Act we appear to be taking to ourselves extra territorial jurisdiction. I think that the provisions in this portion of the Bill will be limited in accordance with the decision of the High Court in the case ofD’ Emden v. Pedder, in which it was laid down that where a doubt exists as to whether Parliament is exercising powers which are beyond the limits of its jurisdiction, the Court must assume that Parliament does not intend to go beyond its powers. The Court further declared that Parliament must be supposed to legislate in recognition of international law if the construction of a particular part of an Act was doubtful. I take it that this clause means that the venue is as between purely local venues.
– That is all that it does mean.
– I do not think that the Imperial Act means that. It has an extra territorial application.
– The clause seeks to vest the Court with power in two cases. If a ship is within the jurisdiction of the Court we shall be able to proceed against it, and if a person is within the jurisdiction of the Court we shall be able to proceed against him.
– But if the offence be committed outside our jurisdiction we may not have the power to proceed.
– For the purpose of inquiring into whether we possess jurisdiction we commence by assuming that the offence took place where the alleged offender actually is.
– In the light of clause 381, it seems as if we are attempting to throw on the defendant in all cases the duty of proving that we have no jurisdiction. In other words, we appear to assume that we possess extra territorial jurisdiction unless he can show that the contrary is the case.
– That is essential, otherwise the jurisdiction of the Court would be confined to ships within ou.r territorial waters.
– We have some jurisdiction over ships registered here, although the offence may be committed .in another part of the world. But that jurisdiction does not extend to all parts of the Merchant Shipping Act, and may not extend to all our legislation.
– The presumption of jurisdiction is essential to a maritime Court.
– It may be essential as a matter of policy. In the case of the Customs, for instance, the actual knowledge of the facts is only in the possession of the defendant, and unless something is assumed against him he cannot be convicted. But apart from the Customs the validity of such a provision as this has been challenged. In the Vend case, for instance, the High Court had something to say in regard to the wholesale use of these presumptions. I think that the clause might with advantage have been omitted. It is superfluous.
Clause agreed to.
Clauses 381 to 385 agreed to.
Clause 386 (Action against official).
– I should like the Minister to give the Committee some idea of the purport and object of this clause, which provides that no action shall lie against any official for anything done under the provisions of the Bill unless direct proof of corruption or malice be given. The definition clause provides that - “ Official “ includes all persons in the service of the Commonwealth or of a State employed under this Act for any purpose or duty in relation to which the term is used.
The word is therefore given a very wide meaning. This clause would apply to the detention or arrest of ships, the detention of persons, and various other powers exercised by officers under the Bill, and in all such cases they are not to be liable in respect of any act done by them unless either corruption or malice be proved. The negligent discharge of a duty is not apparently to be the subject of action, nor is the omission to discharge a duty to be actionable, no matter what loss may be sustained by the persons concerned, unless’ malice or corruption can be proved. The clause is taken from the New South Wales Act of 1898, but I wish the Minister to say whether it is intended to give officers a general immunity except where malice or corruption is shown.
– The intention of the clause, as I understand it, is that proceedings relating, for instance, to the detention of a ship by an officer acting under the Act shall lie, not against the officer, but against the Commonwealth. The clause is really to protect officials. Under the Customs Act, to which reference was made a few minutes ago, proceedings have to be taken, not against the officers, but against the Department. An official is supposed to do his duty, and an action arising out of any act done by him should be taken against the Department itself.
.- It is very difficult to ascertain how we stand in regard to some of these provisions. This clause is connected, I think, .with clause 385, as to the validity of which I am very doubtful. It would apply in certain circumstances to a foreign ship, but the English law, as laid down in the Kins v. Lord Russell (1901 A.C.) is that if an offence is committed outside the territorial jurisdiction, then neither the Imperial Parliament nor the Courts of the United Kingdom have jurisdiction regarding it unless the act is done by a subject of the King.
Clause agreed to.
Clauses 387 to 391 agreed to.
Clause 392 -
Upon complaint on oath by the master of a ship in port that any person … is inciting any other person to commit an offence against this Act, any . . . magistrate . . . may cause such person to be . . . brought before him, and, on proof of the complaint, he may commit the offender to prison for a term not exceeding three months, with or without hard labour.
– I move -
That all the words after “ him,” line 6, bc left out.
These words are in conflict with penalties for which we have provided in clause 99. That clause gives power to a magistrate to have a person apprehended and brought before him, and to impose certain penalties. These words are in conflict with that provision, and we therefore desire to omit them.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 393 and 394 agreed to.
Clause 395 (General penalty).
– I wish to draw attention to a section in the British Merchant Shipping Act, dealing with the application of penalties, which has not been embodied in this Bill, and which, I think, is well worthy of our consideration. Clause 39s imposes penalties, and clause 408 requires those penalties, unless the contrary intention appears in the Act, to be paid into the Consolidated Revenue. Under section 699 of the Merchant Shipping Act it is provided that where a penalty is imposed for the omission of an act which has resulted in injury to a person - it may be a seaman - the Court may direct that the penalty, instead of going into the Consolidated Revenue, shall be paid to that person as damages for the injury he has sustained. In this connexion, I would point out that under clause 59 we require that a discharge shall be given to a seaman, and that the master of’ a ship shall be liable to a penalty for failing to give one. If a seaman, because of the failure of a master to grant him a discharge, had suffered injury, then it might be desirable to award him the penalty imposed against the master. In the case of Downie v. Connell it was held that the refusal to- give a certificate of discharge gave a right of action against the master for the injury sustained. I think we ought to take a power similar to that for which the Merchant Shipping Act provides, and declare that if a seaman or any other person has sustained injury through the refusal of another to perform a duty under the Act the penalty may be awarded as compensation to him.
– That would be a limitation on clause 408 of the Bill.
Clause agreed to.
Clauses 396 to 399 agreed to.
Clause 400 (Distress and sale of ships).
.- I desire to raise on this clause, which deals with a somewhat similar matter, the question of why there has been left out of this Bill a clause which appeared in the Bill of 1904, providing in effect that the agents of a ship not registered in Australia shall be deemed to be the legal representatives of the master and owner after the departure of the ship from the port at which she was discharging, for the purpose of receiving and paying claims for short delivery and pillage of cargo, and that the amount of any such claim might be recovered from any such agent in a Court, and giving power to the agent by twentyfour hours’ notice to decline to accept responsibility. I think the object of that clause was to prevent the owner or master of a ship clearing out, and leaving the creditors to weep without remedy. I believe there were some other provisions in the Bill of 1904 with regard to pillage which were also struck out, and probably that clause went the way of them; but I have been unable to ascertain why it was struck out. My attention has been drawn to the matter by the Chamber of Commerce of Adelaide. I looked up the evidence taken before the Navigation Commission, and observed that the Adelaide witnesses “ strongly favored the inclusion of such a clause, although some witnesses threw doubts upon the policy of it.
– A perfectly proper remedy in such a case, but what are you going to do? A remedy ad rem is absolutely necessary.
– I suppose the AttorneyGeneral suggests that we may not have the power to make the agent responsible. That may be so. I had a slight doubt about it when I read the suggested clause. The clause was retained in the Bill for some years, during the course of its progress or retardation through the Senate, and eventually was struck out. I cannot find out why, but I confess that, however tempting it may be to read what was said in the Senate, I have resisted the temptation up to the present. I see that the definition of “ owner “ includes the manager or secretary of any company or body corporate, or any person to whom the whole or a part of a ship belongs. It may be that, as we are making the owner responsible in certain cases where -he was not responsible before, the secretary or manager could be made the defendant. To that extent the Bill may cover the policy of the old clause.
– It is not an unlimited liability under the definition clause. It would- be limited by’ the memorandum or articles of association in one case, or shareholding in the other.
– It would only apply, perhaps, in the case of the, company, when there might be some remedy against the manager or agent. If he was made liable, and had any private assets, they might be impounded to realize the claims against the ship.
Clause agreed to.
Clauses 401 to 406 agreed to.
Clause 407 (Australian flag).
.- The policy of the clause has been questioned, some members of Marine Boards having raised the point as to whether we have authority to pass it. I understand that the Imperial Government have published a gazetfe authorizing the Commonwealth to adopt a flag for the Australian Mercantile Marine. There is in the Merchant Shipping Act a section authorizing that to be done, but some official bodies throughout Australia contend that the flag cannot be used except with the permission of the Commonwealth. I believe the necessary gazette has been issued.
– Yes, in August, 1903, and again in December, 1908.
– If so, that settles the question.
Clause agreed to.
Clauses 408 to 411 agreed to.
Clause 412 -
This Act shall apply to any unregistered British ship which ought to have been registered under this or any Imperial Act, as if the ship had been registered in Australia.
Amendment (by Mr. Tudor) agreed to-
That the words “ this or “ be left out.
– I am not quite sure, on looking into the clause again, of its intention, scope, and effect.
Sitting suspended from1 to 2.30 p.m.
– When we adjourned for lunch I was asking the Minister to explain the purpose of this clause. On its face it would seem to apply the whole of the provisions of the Bill, butI presume that it will have to be read in conjunction with each part of the Bill, and that those parts of the Bill which apply exclusively to certain ships will be read subject to that.
– It seems to be a general sweeping clause in order to make sure of exercising our power to the fullest extent that may be necessary.
– I see that by section 264 of the Merchant Shipping Act the Legislature of a British Possession may apply or adapt to any British ships registered at, trading with, or being at any port in that Possession, the provisions of the part of the Act in which that section occurs, namely Part II. As a matter of fact we have done that up to clause 58. Then Part II. of the Merchant Shipping Act contains this provision - 266. ‘This Part of this Act shall apply to an unregistered British ship which ought to have been registered under this Act, as if such ship had been registered in the United Kingdom.
It is necessary, if we want to apply that section also, to expressly state that we do. That is, 1 think, the reason for clause 412 of this Bill. By express legislation we can apply any portion of Part II. of the Merchant Shipping Act.
– The Act applies so far as it is not expressly prohibited from applying.
– It applies by virtue of the Merchant Shipping Act, but we cannot alter some parts of the Act. We can, however, apply any portion of Part II. that we like in relation to ships registered in the Commonwealth, and such portion will have extra territorial operation. Clause 412 of this Bill is a copy of section 266 of the Merchant Shipping Act. Under the authority of Part II of the Act we are declaring by this clause that the Act shall apply to a registered British ship. If we did not do that it would not apply, because Part II. of the Act is brought into operation by our legislation; and when it is brought into operation it has an extra territorial effect.
Clause, as amended, agreed to.
Clauses 413 to 415 agreed to.
Clause 416 -
Where under this Act any ship is to be detained ormay be detained, all officers of Customs shall refuse to grant outward clearance to that ship, or to grant her any transire or any document in the nature thereof.
Amendments (by Mr. Tudor) agreed to -
That after the word “ detained,” second occurring line 2, the following words be inserted: - “ or where the requirements of this Act with regard to the ship or her officers, crew, or equipment, have not been complied with.’’
That the word “shall,” line 3, be left out, with a view to insert in lieu thereof the word “ may.”
Clause, as amended, agreed to.
Clauses 417 and 418 agreed to.
Clause 419 -
The seal of the Minister for the purposes of this Act shall be a seal having the Royal Arms in the centre, and the words “Minister for Trade and Customs, Commonwealth of Australia,” in a circle surrounding the Royal Arms.
Amendments (by Mr. Tudor) agreed to -
That the words “ the Royal Arms in the centre and “ be left out.
That the word”Royal,” line 5, be left out, with a view to insert in lieu thereof “ Commonwealth Coat of”.
Clause, as amended, agreed to.
Clause 420 agreed to.
Clause 421 -
Provided that nothing in this section shall prevent the Minister from using the returns to assist him in preparing periodical ‘ estimates of the extent to which the relation between imports and exports of Australia as a whole is affected by the freight earnings of shipping which reaches this country.
No person not employed in the Department of Trade and Customs in connexion with the returns shall be permitted to see any individual return, and any person so employed who knowingly makes any disclosures of any matter which the Minister is prohibited from disclosing under this section shall be guilty of an indictable offence.
No owner, shall fail to make the return required under this section or make any false statement therein.
.- A good deal of objection has, I think, been raised by ship-owners to this clause. I believe that it was originally included in the Merchant Shipping Bill of 1906, when it was introduced by Mr. Lloyd-George, but, after ample discussion, it was omitted. It was thought that it was very inquisitorial in its character, was not required tor Customs purposes, and would be ineffective for those purposes. It is stated in the proviso that the return may be used in relation to imports and exports, but about 96 or 97 per cent., perhaps more, of the cargo-carrying tonnage is not registered here. So that it will probably prove ineffective for Customs purposes. We do not need a clause so inquisitorial as this for the purpose of checking imports and exports, which can be done under the Customs Act without inquiring into the private affairs of the persons and companies whose ships are registered in Australia. Apart from the merits or demerits of the clause, as one of our objects is to secure uniformity with British legislation, . I think that we should not adopt a provision which the Imperial Parliament rejected. I do not know whether this clause has been in the draft Bills from the beginning. If so, it is an instance of the survival of the unfittest. Some correspondents have protested very strongly against it.
– The clause has been in the Bill since 1907.
– I think that it should be struck out. Possibly, the AttorneyGeneral, having learned from the judgment in the Huddart- Par ker case that we cannot frame a general company law, is trying to enact a piece of such law in this way.
– We have the power to license.
– I do not deny that. We may have that power in regard to external commerce, apart from navigation. I do not wish to give in detail the reasons which have been put before me for striking out the clause, but I ask the Minister to say why it has been put into the Bill.
– My view is that the clause does not go far enough. The Bill gives vessels engaged in the coastal trade - primarily Australian owned and registered vessels - real and considerable advantages, and it has been pointed out that this may create a monopoly, to the detriment of the Australian public. The clause has been drafted, therefore, to give the Commonwealth some control, and to provide for the exercise of that control in accordance with definite information. Certain disclosures must be made to the Minister, and he will thus have data on which to act, if necessary. While preserving the coasting trade of Australia to vessels observing Australian conditions, we wish to provide against abuse, and the clause gives us some sort of control. It ought, however, to apply to all vessels engaged in the coasting trade, wherever registered? There is little doubt that whatever powers we have in this connexion so far as Australian registered vessels are concerned, we have also so far as other vessels are concerned, while they are engaged in the coastal trade. If the clause were made to apply only to vessels registered in Australia, its effect would be comparatively small, and it would be simple to evade it by registering out of Australia. It would not apply to the Union Steam-ship Company’s boats, which are registered in New Zealand, nor to vessels engaged in the coasting trade which are registered in Glasgow, Liverpool, and London. I move, therefore -
That after the word “Australia,” line r, the words “ or engaged in the coastal trade “ be inserted.
.- I understand that the clause was adopted because of a clause in the Bill before the Imperial Parliament ; but, as the honorable member for Angas has pointed out, that clause was not passed. There was a good deal of discussion about it outside Parliament, and it was struck out without debate in Committee. In, what way will this provision be of use to us ? How does it bear on the other clauses? It does not affect wages or freights; it provides only for the furnishing of information which could be obtained under the Statistics Act. As it stands it is incomplete. Sub-clause 2 sayS - “ distinguishing, if he shall think fit, the coasting trade.” That reads as if it were intended to apply to all vessels engaged in the coasting trade.
– The honorable member for Angas was asking for information on that subject the other day, and we could not give it to him.
– The only information that we shall get from this clause concerns the aggregate gross earnings during the preceding year of all ships. I take it that “of all ships” means “of each ship.” But when the Minister gets that information what is he to do with it? He cannot publish or disclose in any way any -return made under the clause, except to show the percentage variations from year to year.
– I presume we shall do precisely the same as the Statistical Bureau does now. It publishes information concerning an industry, such as boot making ; but in the case of such- an industry as the manufacture of sugar, where only one company is concerned, the Bureau does not publish details.
– The balance-sheets of ‘ public companies have to be filed under State Acts, and they give such information. As far as monopolies are concerned, one of the best methods of dealing with them has recently been suggested in the United States. It is that trusts and combines should be compelled to file complete returns giving certain information. But the information to be furnished under this clause would be of little practical use. It would be defective, because it would not show expenditure and profits. It would simply show gross earnings. A protest has been sent to me, in which a number of shipowners say that they emphatically protest against being required to furnish information which will be likely to get into the hands of competitors of ship-owners. They complain that they are singled out to disclose their business. I am quite sure, however, that any Minister at the head of the Department would keep a very firm hand over his officers, and see that the information thus furnished was not disclosed. Any officer improperly disclosing it would v be treated pretty summarily. I notice a proviso to the effect that nothing in the clause is to prevent the Minister from using the returns to assist him in preparing periodical estimates of the extent to which the relation between imports and exports as a whole is affected by the freight earnings on shipping. Further, any person employed in the Department making any disclosures connected with this information would be guilty of an indictable offence. So that the clause is safeguarded in that respect. As at present drafted, however, it does not appear to me to be likely to accomplish any useful results.
– I do not think that any harm can be done by retaining the clause. It is all very well for the shipowners to claim that it can be used inquisitorially, but they are in the habit of saying that a great many things in this Bill are inquisitorial. The clause will certainly give us better information than we have at the present time concerning navigation.
– How will that information help us, seeing that the Minister will obtain only the gross earnings?
– At any rate, the information cannot injure any one.
.- If the Inter-State Commission were in existence, the matter dealt with by the clause might be relegated to it. It seems to me to be rather unfair that whilst we are regulating carriers for one purpose we do not regulate them for another. There seems something to be said for having comprehensive, instead of piecemeal legislation, on this subject. Something has been said about introducing an Inter- State Commerce Bill. I hope that such a measure will not be introduced at the fag end of the session : but when it does see the light, there will be an opportunity of dealing with the whole subject in relation to Inter-State carriers. At present we are dealing with it only in regard to Inter- State carriers of one particular kind, some of whom would be wholly outside the scope of an InterState Commerce Bill.
– As we are proposing to confer privileges we have a right to impose duties.
– What privileges are we conferring?. It is the general right of every one to navigate the seas of the world. It is only the narrowness of the policy of nations that causes them to impose these limitations. I do not want to introduce questions of abstract ethics, but, at the same time, I must say that I do not admit the soundness of the grounds given by the Attorney-General for putting in this provision. Whilst one would have no objection in connexion with the provisions of an Inter- State Commerce Bill to require all carriers to make disclosures, not only of gross, but of net, earnings, it seems unfair in this Bill to compel one class of carriers to make disclosures as to their affairs when we do not require the same from other carriers who may be competitors with them.
– That is owing to the limited condition of our powers.
– It does notdepend upon our powers. The question of powers has got so much on to the brain of honorable members opposite that it comes out by a sort of reflex action quite irrespective of what it relates to.
– I quite agree that such a provision ought to be applied to all, but there is some doubt, except in this case, and we intend to apply it where we can.
– There is no doubt as to our power in. regard to Inter- State carriers by land as well as by sea. There may be a doubt as to our power to regulate Intrastate carriage by sea, though we are attempting to do it here to some extent. It is unfair to regulate domestic carriage by sea and not by land. I should prefer that the clause were struck out, and a general law applicable to all carriers placed upon the statute-book.
– I am bound to say that all that this clause does is to compel shipowners to furnish returns, and I know of no reason for doubting that we have that power. I cannot see that it can be declared invalid.
– I am not saying for one moment that the clause would be declared invalid. I think we have power to do this, be cause I have in mind the amended definition of “coasting trade” which the Minister will subsequently move. But some part of this provision may possibly come within purely domestic jurisdiction or jurisdiction which is doubtful. I do not doubt the power, but in exercising that power we are compelling some carriers to make disclosures which competing carriers by land are not obliged to make.
– Does this clause apply to all river and bay ships, and, if so, what is the reason for calling upon the owners of those ships to make returns?
– That point was urged in regard to the application of the whole of the coasting clauses, and the suggestion was made by the Minister that that part of the Bill should only apply in limited particulars to river and bay boats.
Amendment agreed to.
Clause further consequentially amended and agreed to.
Clause 422 (Power to suspend provisions inconsistent with treaty).
– I do not like to raise mere technical objections, but very often these questions come before Courts of Justice. This clause respects the treaty obligations of the Commonwealth. What are the treaty obligations of the Commonwealth?
– There are also those entered into by the States.
Mr.GLYNN. - Does this clause apply to the State treaties?
– I should say that it does.
– We inherit those obligations.
– That is assuming that the whole navigation power is transferred to us ; but it is not.
– I do not admit that, of course.
– I think the AttorneyGeneral does admit it.
– That the whole power isnot transferred to us?
– I mean that we have to abide by the decision in the Kalibia case, which shows that the whole navigation power is not given to us.
– I do not admit that for a moment.
– The Seamen’s Compensation Bill was partly based on this power; and in the discussion it was in- dicated that our power in the coasting trade referred only to the Inter-State coasting trade.
– I do not admit that the judgment in the Seamen’s Compensation case limits our power in regard to navigation, nor shall I admit that until it has been so decided by the Court.
– No doubt the AttorneyGeneral is perfectly right in not assuming anything against the Commonwealth power until it is shown that the power does not exist. In my opinion, however, the position taken up by the honorable gentleman is a doubtful one. Assuming that our power is limited this clause is ineffective, because the treaties that we really desire to respect are the treaty obligations of the States. If the Commonwealth were not a British Possession the provisions of the Merchant Shipping Act. would not apply as regards the obligation, and I do not know where we should be then. We have some power over external affairs, but that does not give us power to interfere with treaties. It has been decided time after time that the treaties of a sovereign nation must be respected by the Court’s as if they were positive law. ‘ That is the law in America, and in the sister Federation; and seeing that our Judiciary provisions include jurisdiction in Admiralty and treaties, we might be compelled to respect treaty obligations even under the Constitution. However, I see the position of the Attorney-General - he assumes that we have all the power that we desire, and, therefore, there is no express mention of the States. I suppose we can only criticise and show that certain doubts exist as regards a portion of the clause.
Clause agreed to.
Clause 423 - (1.) The Minister shall appoint a Marine Council of such number as may be prescribed which shall include representatives of the following interests, namely : ship-owners, merchants, underwriters, certificated navigating officers, certificated engineer officers, and seamen. . . .
.- Several bodies and persons have, I think, drawn attention to the constitution of the marine council, which includes not only shipowners, but merchants and underwriters. It has been suggested to me that it is inexpedient to include merchants who are not directly connected with navigation matters. Why are merchants and underwriters included? Had the Minister any remonstrant on the point?
– I forget.
-I received one or two letters on the matter.
– So far as I remember, when this matter was before the Royal Commission, it was urged that merchants and underwriters should be included. That, I think, will be remembered by the honorable member for Darling Downs. It is purely an advisory Board.
– It is a Board that will have very great power; for instance, it might alter the regulations inregard to manning. What I mean is, that the Board could increase the manning scale.
– It is an advisory Board, and has no power beyond giving advice.
– No doubt ; but if a body like this is constituted to advise as to the regulations, no doubt there will be strong reasons for any suggested alterations it may make.
– The Minister may inform himself in any way he pleases.
– Yes; but if an advisory tribunal of this kind is appointed its suggestions must not be treated in the cursory way in which, for instance, the recommendations of Royal Commissions are sometimes treated. I suggest that merchants and underwriters should not be included.
– These different classes of persons have been included in the clause, if not from the beginning, for a very long time past. There was some deputation or some protest or request made that merchants and shippers should be represented. A merchant may have entirely different interests from those of an underwriter ; and this body is supposed to be as far as possible representative. I do not think we ought to remove either merchants or underwriters without hearing what they have to say.
– What advice could a merchant give in regard to manning?
– This Bill has been such a long time hanging up that a Minister cannot be expected to remember why all these things were done, but when they were done there were excellent reasons for doing them. What those reasons were, I confess I have forgotten.
. -I question very much whether it is desirable to provide for representation on the proposed Council on the lines adopted in this clause.I do not see what special reason can be urged for the representation of merchants. I can well understand that, in- the interests of underwriters, Lloyd’s agents in Australia might be very usefulmen on such a Council. What sort of a Council are we to have ? Is it to be a replication of the Marine . Boards of Australia? Their chief characteristic at the present time is the absence of nautical men from them. When a nautical man is appointed to one of these Boards, in nine cases out of ten it is forty years since he was at sea, and he is quite out of touch with modern developments in navigation. The Attorney-General has said that he does not remember how this provision got into the Bill, and I am not surprised to hear him say so. The power of nomination is left in the hands of the Government of theo day, and we know what the effect is likely to be. If a Labour Government is in power, they will, no doubt, make a good start by securing a fair representation of nautical men. It must be . clear that if we are to depend for advice upon such a Council, it must consist of up-to-date men, acquainted with navigation.
– The clause does not provide that the Minister must .appoint equal numbers to represent each interest.
– No, it does not, and that is the danger. There may be a change of Government, and influence may be used to convince a Government that merchants know more about shipping than anybody else, and there may be three representatives of merchants to one nautical man appointed to the Council.
– The interests of underwriters are quite distinct from those of seamen or merchants.
– I am not objecting to the representation of underwriters. The underwriters would probably be represented by one of Lloyd’s agents, who should be a very useful man upon such a Council. I do not, however, see’ why a merchant, any more than a. carpenter or an undertaker, should be specially appointed to the Council. The complaint throughout Australia on the part of those who have given any attention to the subject for years past has been that when masters or engineers of vessels get into trouble, and have to hand in their certificates to a Marine Board, they are not tried, as they ought to be, by their peers. They complain that they should not be tried by men who ‘know little or nothing of practical navigation. There is no reason why we should, in this Bill, perpetuate well-known abuses that have grown up under the system adopted in the different States. I have no feeling against merchants, and I suppose this provision for their representation is included because it is considered in nearly all the States that the Chambers of Commerce should be represented on these Boards. If merchants are to be represented on this Council, pressure may be brought to bear to practically swamp it with merchants, and what value would it then have as an advisory body in connexion with nautical matters?
.- The provision for the Marine Councils and Committees is an exceedingly important part of the Bill, and I propose to recall a little of its history. The Navigation Commission had to consider the very important matter of the manning scale. When we came to lay down a basis for the manning scale, we were met with a. number of difficulties and anomalies. We found that no matter what basis was suggested by seamen or ship-owners, it was difficult to apply it uniformly and with justice to all parties concerned. When an attempt was made to apply a particular scale it was found that it would provide in one case for a larger, and in another for a smaller complement of seamen than would be necessary. We took evidence on the subject, and ultimately in the report we presented suggested a basis for the manning scale, and the appointment of a Committee to adjust anomalies.
– That is right; I knew it was somewhere.
– Honorable members may smile, but the Attorney-General is .quite right; and it is, indeed, a tribute to his memory that he has been able to remember as much as he has about this Bill. At page 31 of the Navigation Commission’s report it will be found that we made the following recommendation. The Mr. Grayson referred to represented the ship-owners, and was the secretary of their association at the time -
Mr. Grayson and other witnesses suggested that anomalies would continually arise which would render the application of any particular scale unjust or unworkable, and that none but practical men should determine ‘ the merits of each particular case. It was pointed out, in support of this contention, that vessels were constructed at present of such varying types in respect of the positions of the bunkers, engines, boilers, &c, that any scale would work in very many cases unfairly either to the employer or to the men. Your Commissioners so far agreed with these objections as to recommend the appointment of a committee formed of one representative of the employers, one of the men, and a neutral Government expert. The functions of this body would be to adjust’ such anomalies as might from time to time arise, and to prevent the scale operating unjustly. They think that a committee of this kind could, and should, deal with all departments in connexion with manning, deck, engine room, and stoke hold. This will, it is thought, entirely remove the main objection to the adoption of the scales recommended by the Commission.
Under clause 11 of the Bill it is an offence to take a vessel to sea without a duly certificated master, according to the scale set out or “ as prescribed.” Provision is made for a manning scale, which is also qualified by the words, “as prescribed.”
– The question is whether this Marine Council will have the power to decrease the scale fixed by schedule 1.
– I think it will have that power; that was certainly the. intention. The Commission realized that if there was a fixed standard, as provided in the Bill which they had under consideration, it might result in injustice to one side or the other, or to both. It is necessary, in view of new classes of boats, and new inventions of all kinds in connexion with shipping, to have an elastic provision if justice is to be done in all cases.
– The Council will do that if the right men are appointed.
– But that is not the only matter upon which expert advice and assistance will be required. In 1907 the Bill provided for the appointment of Advisory Committees. In the 1910 Bill,, the draft was altered to provide for the creation of a Marine Council, which should be fairly representative of all the interests affected. The power to “ prescribe “ means the power to make regulations, and the power to make regulations includes the power to lift up as well as let down. The intention was to bring in, for the purpose of advising the Minister, the representatives of as many interests as are likely to be affected. To my mind, the Council will be fairly constituted, seeing that it provides for the inclusion of representatives of ship-owners, merchants, underwriters, certificated navigating officers, certificated engineer officers, and seamen.
– But there is nothing in the clause regarding the number of representatives of each interest, who shall be appointed.
– That is true. But the important feature is that the clause makes provision for the representation of all the interests which are affected. That is wise. This Bill will deal with commercial interests, and, of course, the commercial man is really representative of the goods which are carried to and from all our ports.
– Is not a ship-owner a commercial’ man?
– But he represents only a particular section of the business community.
– Then the honorable member would appoint another person to represent the public.
– We must secure a body which is representative of the general interests of the community.
– Whom would the honorable member regard as representing the public?
– The Minister of Trade and Customs and his officers represent the public. The commercial man will ‘ look after the carriage of the goods of the community. The underwriters are very much concerned in the matter of insurance, and also in the seaworthiness of vessels and of their proper survey. That being so, they are likely to encourage anything which iscalculated to conserve life and property on board ship. Then the engineers, deck officers and seamen will be represented. As a matter of fact”; the small Committee which was originallyproposed has been abandoned in favour of a larger and more representativeMarine Council. This is a most important part of the Bill. As is the case with a> great many of our modern Acts of Parliament, we have to rely to a very great extent upon our power to make regulations, because we cannot make provision in the Bill for every contingency which may arise. Consequently, we must provide a certain* amount of elasticity. This Council will bea pure Council of Advice. There are somematters upon which the Minister will take its advice absolutely. For instance, if a special Committee consisting of therepresentatives of the ship-owners, theofficers, and the men were all agreed in regard to a manning scale, he would naturally require to possess very good reasonsbefore he would think of setting aside that: scale. Then there is this further safeguard in regard to Commonwealth regulations. When they are first issued, all our regulations are merely of a provisional character, and any member of the outside public is at liberty to protest against them. He can, if he chooses, forward his protest to the Governor-General in Council, who is bound to consider it. That is a departure from the practice which exists in the States.
– I do not think that the opportunity to protest against any regulation has been availed of here.
– The misfortune is that too often those regulations are advertised only in the Commonwealth Gazette, which does not set them out in extenso.
– But the persons who are affected by them soon find out what they are.
– At any rate, that is the method which is provided by the Statutory Rules Publication Act. On the whole, the clause is a helpful and wise one, and I believe that in practice it will be found to overcome many difficulties which must necessarily be experienced in administration.
– I recognise that this is one of the most important clauses in the Bill. I think that the honorable member for Angas and the honorable member for Hindmarsh were perfectly correct in the point which they raised. The men who will be appointed to this Marine Council should be absolutely in touch with the business in connection with which they will be asked to suggest regulations. The merchant will not be in touch with that business. If the matter to be dealt with was one of fixing rates for cargo, the merchant wouldhave a right to be represented; but the Council will have only to deal with such matters as regulations with respect to the scales of officers, crew, and provisions. I agree that the word “ merchants “ should come out. I therefore move -
That the word “ merchants “ be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 424 (Regulations).
– I move -
That the following new paragraph be inserted “(Ca) Matters affecting the stability of ships.”
The insertion of this new paragraph will give power to the Governor-General to make regulations to cover a matter referred to by the honorable member for Lang and others, who brought under notice the fact that vessels often go out to sea running very light, some of them having a large proportion of their propellers out of water. Such a condition is very undesirable when heavy weather is met with, and I know that the Seamen’s Union is also very emphatic on this point. We think it desirable to take this power.
Amendment agreed to.
.- Is the Minister prepared to consider the desirableness of inserting a new paragraph enabling the Governor-General to make regulations relating to the stowage of deck cargo and the provision of passenger accommodation. I dare say that the Minister knows from experience that, on our coastal vessels more particularly, the decks are often lumbered with cargo.
– I have particularly noticed that fact when travelling steerage. The position of the steerage passenger in this respect is worse than that of passengers travelling in any other class.
– I know that it is. Whilst the hurricane decks may be clear of cargo, it very often happens that nearly the whole of the deck space available to steerage passengers is occupied with cargo, and sometimes with stock: In some cases the gangways are wholly obstructed. Whilst it may be necessary to allow a vessel to carry a certainquantity of deck cargo, some limitation should be placed on the deck space that can be so occupied.
– Under paragraph 7 of clause 271 power is given to make regulations with respect to “ cargo to be carried and the method of stowing cargo.” That I think would cover the object which the honorable member has in view.
– That relates only to passengers’ cargo.
– Clause 271 is in a division relating only to passengers.
– But paragraph b of clause 271 enables regulations to be made in respect of the conveyance of stock. Surely the honorable member would not say that that applied only to passengers.
– I am inclined to think that clause 271 does not give full power to make such a regulation as I have in mind ; but if the Minister is satisfied that it does, I shall not press my suggestion. The honorable member for Lang, who is, unfortunately unwell and unable to attend, specially asked me to bring this matter under the Minister’s notice; and as I had thought of bringing it forward myself, I was very pleased to do so.
– I realize that the matter is a very important one. It was mentioned some time ago by the honorable member for Lang, whose indisposition, I am sure, we all regret; and I have already proposed an amendment of this clause to meet a point raised by him. Unfortunately, a number of vessels, to a large extent outside our jurisdiction - I refer to river and bay boats - are the worst offenders in this respect.
– But the inconvenience in their case is not necessarily as great.
– Quite so, because their voyages are comparatively short. I am assured that clause 271 will cover the point raised by the honorable member, and enable us to safeguard the interests of passengers.
– I should be glad if the object which the Minister and the honorable member for Richmond have in view could be met without unduly interfering with the carriage of deck cargo, because fruitgrowers prefer to have their fruit carried on deck rather than below. It would be a poor look-out for them if fruit in transit to New Zealand and other places were carried below.
– We cannot absolutely prevent the carrying of cargo on deck.
– I have no doubt that if a little latitude is left to the Minister, wise administration will do the rest. There seem to be extremes in all these matters ; but whilst deck space is sometimes unduly lumbered with cargo, I hope no regulation will be framed to prohibit altogether the carrying of any cargo on deck, because that would be disastrous to many of our producers.
Clause, as amended, agreed to.
Postponed clause 5 (Definitions) - “ Vessel “ means any ship, boat, or any other description of vessel used for any purpose on the sea or in navigation.
.- One has to watch these definitions pretty carefuljy, because in some cases we depart from the wording of the Merchant Shipping Act, and one would like to know the reason why. The Imperial Act does not contain the words “ for any purpose on the sea or.” A dredge would be a vessel, so long as it had some crew. Would the addition of those wordsmakea buoy a vessel ? I believe it would. A distinction is drawn in the definition between navigation and “ any purpose on the sea.” If it includes buoys, it will mean that the control of all buoys in Sydney Harbor will fall under this Act, and I do not think that our previous legislation with respect to lighthouses; beacons, and buoys goes so far.
.- Has the Minister taken into consideration the point I brought under his notice on a previous occasion as to the landing-stages along the northern rivers of New South Wales, with reference to limited coast-trade ships ?
– I think that comes under clause 43.
Definition agreed to. “ Ship “ includes every vessel used in navigation not ordinarily propelled by oars only.
.- I think this definition is also a variation from the Merchant Shipping Act. The words “ordinarily” and “only” have been added. As the honorable member for Angas says, the altering of the phraseology often affects the application of cases already decided.
– I think the alteration in this definition is rather beneficial. A good deal of discussion took place before the Arbitration Court as to whether vessels were passenger or cargo vessels in connexion with a particular claim in the Merchant Shipping Guild case. An award has been made to cover, say, tugboats, that once in twelve months carry passengers, and if the word “ ordinarily “ was put in they would be excluded. I suppose, according to this definition, the occasional use ofoars would not take a vessel out of the class to which it properly belonged.
Definition agreed to. “ Australian-trade ship “ includes every ship (other than a limited coast-trade ship or river and bay ship) employed in trading or going between places in Australia, and every ship employed in trading between(a) Australia and (b) territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific.
.- This definition raises a very big question. An Australiantrade ship includes one that trades between Australia and the islands of the Pacific. There is no doubt that we have power over ships in relation to voyages whose first port of clearance and port of destination are in Australia. I think those are the words of covering section 5 of the
Constitution. The first port of clearance is fairly clear; but ,the question of what is the final port of destination has been argued before the High Court in the Fiona and some other case, and is to be re-argued before the Full Court as being a matter of very great importance. The Fiona went from Sydney to Fiji, traded with the New Hebrides, went thence to Auckland, and came back eventually to Sydney. One of the questions before the High Court is whether its final port of destination was in Australia, or whether intermediate clearances between the various islands to which it traded had altered its, port of destination within the meaning of the Constitution before its return to Australia. One of the grounds of jurisdiction set up was that if covering section 5 of the Constitution applied to such a voyage, then an arbitration award would apply right through it; but, apart from that, the argument was advanced that if the ship was registered in Australia, and traded in Australia, and, I think, belonged to a resident in Australia, then Australian laws would follow the ship no matter where it went. That was decided in New Zealand, in the’ Wellington cooks’ case, which is reported in volume 26 of the New Zealand Law Reforts. A majority of the Supreme Court decided that the arbitration law applied to a vessel which was registered in New Zealand and traded with Fiji and Australia, but different reasons were given for the decision. If I am not mistaken, Mr. Justice Chapman thought that, although New Zealand had not a provision similar to covering clause 5 of our Constitution, the principle of that clause applied; in other words, that there was an implied provision in the Constitution that if the first port of clearance and port of destination were in New Zealand its laws went with the ship. But Sir Robert Stout, the Chief Justice, took much wider ground, and that is the ground I have mentioned - registration, residence, and trade - and held that a ship which left New Zealand,, and went to the Pacific Islands, and also to the Commonwealth, was bound, throughout the parts of the voyage that were extra-territorial to New Zealand, by its law. In fact, he seemed to go to the length of declaring that in that matter the position of New Zealand was practically as sovereign, subject, of course, to any Imperial Act which might be passed to the contrary, as is the Imperial Parliament in relation to navigation, and, of course, the Imperial power extends to
British ships, no matter where they may be. He claimed that under the legislative power given by the Constitution the New Zealand Parliament could legislate in respect of New Zealand ships to the same extent, though still subject to any overriding Imperial Act, as the Imperial Parliament could legislate in regard to British ships and British citizens. That decision was never brought before the Privy Council, but its soundness has been disputed. It has been challenged at Home, though not, of course, in the way of litigation. In an article which appeared in the Journal pf Comparative Legislation, Mr. Keith practically pooh-poohed that decision, and a subsequent one, which extended it still further, and which is reported in volume 29 of the New Zealand Law Reports. In ‘this definition of Australian-trade ships we seem to assume that our power over Australian ships goes beyond the power we have under covering clause 5 of the Constitution, and that we have power over ships employed1 in trading or going between places in Australia and over ships employed in trading between Australia and Territories under the authority of the Commonwealth - that may be all right, though I am not quite sure that it is - New Zealand, or the islands of the Pacific. As regards ships trading between Australia and Territories under the authority of the Commonwealth, there is no doubt that when a vessel is in the waters of the Territory of, say, Papua or the Northern Territory, we have exclusive power over the vessel subject to any paramount Imperial legislation. So far as Australia is concerned, the Commonwealth power, as against the States, is exclusive in relation to ships within the waters of a Territory - I do not say the territorial waters of Australia, but the waters of a Territory such as the Northern Territory or Papua. If a vessel, therefore, trades between the mainland of Australia and Papua, the voyage would - at both ends, at all events, and, I think, throughout - be under our jurisdiction, though I do not know that even that is not doubtful. Would it be Inter-State or foreign commerce? If it is not Inter- State commerce, where is our jurisdiction ? Can it be called Inter-State commerce for a vessel to leave Queensland to go to Port Moresby? Now Port Moresby is not a State or part of a State. It is not external commerce, because Port Moresby is in a Territory which1 is part of Australia. Then we have this position : that it is neither Inter- State nor external commerce. Who, then, has jurisdiction over the voyage? When a vessel gets into the waters of Papua undoubtedly we have. But if it is not part of Inter-State commerce while the vessel is in Queensland waters, as far as the 3-mile limit applies to Australia it may be for State purposes within the jurisdiction of the Queensland Legislature, and not within our jurisdiction. This may seem hypertechnical or refining, but it is just on refinements of this sort that case after case goes before the High Court or the Privy Council. The matter Strikes me suddenly, but I believe that when a vessel starts from Queensland to Papua it is not Inter- State trade between the two places. It is not external trade as regards the Commonwealth. What jurisdiction exists in regard to the voyage? Is it Imperial jurisdiction? It certainly will be Commonwealth jurisdiction when the vessel gets over to Port Moresby, but when it is here it may be State jurisdiction and not Commonwealth jurisdiction. When we come to deal with vessels trading to New Zealand and the islands of the Pacific we are met with the doubt expressed as to the soundness of the reasons for the decision of the Supreme Court of New Zealand in the Wellington cooks’ case, given by Sir Robert Stout, and we areapplying the principle of his decision apparently by our definition. These are matters which struck me when I first read the definition. If my doubts can be dispelled I shall be happy to listen to what can be said, but I am afraid, as I remarked in my speech on the second reading, that from the beginning to the end of the Bill, both by the definitions and by the enacting provisions, we are raising problems which will not be settled except by Imperial legislation, supplying jurisdiction in navigation, or a series of decisions as regards the lines of demarcation between a State and the Commonwealth, and the Imperial power which may be given by the High Court and the Privy Council.
– I candidly admit that I am not familiar with these technical matters. I agreed to take charge of certain portions of the Bill, and the AttorneyGeneral undertook to look after the rest, including this clause. I confess that the legal points raised by the honorable member for Angas regarding the definitions are puzzling to me.Whether other hon orable members could follow him more easily than I could I do not know. There has been an alteration of this clause since the 1908 Bill was introduced. We have included “ Australia and territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific.” I understand that this alteration was intended to cover vessels which are engaged in trade between Australia and its territories, New Zealand, and. the islands of the Pacific. I know that some persons do not think that we have any jurisdiction in that regard.
– These words were included in the definition when the1910 Bill was introduced in the Senate.
– The words must have been put in by the present Administration for that purpose. I donot know whether we have jurisdiction ornot. I believe that we are all a little in the dark, not only on this point, but on a good many others.
.- I think that this definition will include vessels trading to the northern rivers of New South Wales.
– That is “ limited coast trade.”
– No. I think that limited coast-trade coversships making a voyage not exceeding a radius of 400 miles. The northern ports of New South Wales are more than 400 miles from Sydney. When I referred to this matter when the clause was first under consideration in Committee, ‘the Attorney-General said he thought it would be possible to define a landing stage as opposed to an ordinary harbor in order to get over the peculiar difficulty which exists in New South Wales. The crews have to handle cargo going down the rivers, not at the regular ports, but at the small landing places. Clause 43 provides that regulations may be made prohibiting Australian trade ships - and some of these vessels go too far to come under the denomination of limited coast trade ships - from employing their crews in working cargo. If the crews of these river vessels cannot be employed at the landing stages, special crews will have to be shipped at the entrance to the rivers, and taken up and down, which will mean additional cost to the shipping companies, which will be promptly passed on to the consignees and producers. The AttorneyGeneral suggested that it might be possible to amend clause 43 so that the employment of crews at river landing stages could be allowed. Can the Minister see his way to do that?
– Many of the vessels referred to by the honorable member for Richmond will, because of the length of their voyage, come within the definition of “ Australian coast trade ships,” and he is afraid that, under clause 43, their crews will be prevented from working at river landing stages, and that the work now done at those places by them will have to be done in future by waterside workers. But if he looks at sub-clause 2 of clause 43, he will see that the regulations may forbid this employment, “except as prescribed.” Those words were inserted to meet a case like that un3er discussion. I understand that the loading and unloading at the principal ports is done by waterside workers. It could be provided by regulation under sub-clause 2 of clause 43 that at river landing stages the work could be done by the crew. That would meet the honorable member’s objection. We could exempt river ports where there are not waterside workers, or where the work to be done would not justify the employment of waterside workers, and where it isfor many reasons convenient to have it doneby the crew.
– The honorable member for Richmond earlier in the consideration of the Bill took the point that the crews of certain river steamers which come under the definition of Australian trade ships, might be prevented from working cargo at landing stages where merely a few packages of merchandise, or a few bags of produce, were landed or discharged for the convenience of farmers and settlers in the vicinity, and where there was practically no township. But, under clause 43, the regulations may prescribe that at such places the prohibition in regard to the working of crews shall not apply. That would meet the honorable member’s difficulty.
Definition agreed to. “ River and bay ship “ includes every ship which trades exclusively in some river or gulf or bay within any State or States.
– I move -
That all the words after the word “includes” be left out, with a view to insert in lieu thereof the following words : “ every ship which trades exclusively within the limits of any port, bay,or river, or within prescribed limits in any gulf, within the Commonwealth, including a Territory being part of theCommonwealth.”
The definition covers vessels trading to gulfs, bays, and rivers in the Northern Territory, which are not covered by the present definition, but it will not apply to Papua, that Territory being outside the Bill altogether, . though by striking out certain words in new clause5a, it would be included.It does not cover purely State vessels onrivers and bays.
.- The Minister will recollect that the honorable member for Kooyong made a very strong appeal that we should make perfectly sure as regards a territory being part of the Common wealth. “ The Commonwealth “ includes the territories. “ Commonwealth “ does not mean the geographical area over which a political entity has jurisdiction. But here we use the word “ Commonwealth “ as though it were simply a geographical area, consisting merely of the continent of Australia and Tasmania. I think it is advisable to put the point beyond doubt. I understand that the idea is not to apply this Bill to the Territory of Papua. We exclude that Territory altogether. Even vessels trading between Australia and Papua will not be included unless they come under some other definition. All the vessels trading between different parts of Papua - say, from Port Moresby to Samarai and round the coast - will not be affected.
– Paragraph (a) is clear on that point, is it not?
– “ Commonwealth “ is defined in the Constitution.
– But the Constitution does not limit the word to Australia and Tasmania. The Acts Interpretation Act, section 17, says that “‘The Commonwealth ‘ shall mean ‘ the Commonwealth of Australia “; and “ Australia “ includes the whole Commonwealth. The Territories are part of the Commonwealth of Australia. Papua, being a Territory, is part of the Commonwealth. What is it part of if it is not part of the Commonwealth? Certainly it is part of the British Empire, but it is not under British jurisdiction. It is under our political control. We have exclusive power of legislating for it. We could make Papua a State to-morrow if we liked. Instead of admitting it as a State, we keepit as a Territory of the Commonwealth. As such, it has been urged that it is part of the Commonwealth in a political aspect.
Mr. HUGHES (West Sydney- Attor in this clause, and it is useless to put in superfluous words. The Acts Interpretation Act lays down the law for the interpretation of Federal Acts; and in that Act, section 17, “The Commonwealth” is defined to mean “ The Commonwealth of Australia”; whilst “ ‘Australia’ includes the whole Commonwealth.” Australia remains a fixed quantity. It is a definite term, and has a definite meaning. It can only include what it is defined to include in section 6 of the Constitution - “ The Commonwealth “ shall mean the Commonwealth of Australia as established under this Act.
It includes certain States, which are -
Such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States.
– Look at section 121 of the Constitution, which enables us to admit new States into the Commonwealth.
– We admit new States, but I take it that that has reference to the formation of new States inside Australia.
– We could admit Papua as a State.
– I do not think that Papua could be admitted as a State.
– Why not?
– I do not say positively that it could not ; but I am perfectly certain that this new clause, which defines the application of this measure, excludes Papua, because Papua is not a Territory whose territorial waters are in part of the Commonwealth.
Amendment agreed to.
.- I wish to point out that as the definition of “ river and bay ship “ has been amended, it includes every ship which trades “ within prescribed limits in any gulf.” Under the old definition it included ships trading “within any gulf.” The words “within prescribed limits “ are a limitation.
– Some gulf trade ships run up almost as far as limited trade ships.
– In South Australia the position is rather peculiar, inasmuch as river and bay ships trade in two gulfs connected by narrow straits, and do not enter into the ocean. A good many of- the- voyages through the straits and to Kangaroo Island are of comparatively short distance and duration, and, therefore, they are made by what are really river and bay ships. Unless the Minister amends the definition, I do not think that many of these vessels would be regarded as river and bay ships, as, according to classification, they ought to be.
– I have no objection to an amendment.
– I move-
That after the word “ gulf “ the words “ or gulfs” be inserted.
Amendment agreed to.
Definition, as amended, agreed to. “ Freeboard “ means the height from the water to the upper side of the deck line. . . .
Amendment (by Mr. Tudor) agreed to -
That the definition of “freeboard” be left out. “Passenger” means any person other than the master and crew, or the owner,’ his family or servants carried on board a ship with the knowledge or consent of the owner, agent, or master thereof.
.- This is the same definition as that given in the Merchant Shipping Act, but very important questions have arisen as to what constitutes a “ passenger.” For instance, it has been debated whether a person carried gratuitously is a passenger ; and, although this may seem a small matter, it may involve, as it did in one case, many thousands of pounds in ‘damages.
– Unless we decide that all persons other than those mentioned in the definition shall be regarded as passengers, it will be possible to evade most of the provisions of this Bill in regard to accommodation, life-saving appliances, and so forth.
Definition agreed to.
– I move -
That after the definition of “ Superintendent “ the following definition be inserted : - “ Proper authority “ means -
at a port in Australia, a superintendent ;
at a port in any other part of the British Dominions, a ‘superintendent, or, in the absence of a superintendent, the chief officer of customs at or near the port ;
at a port elsewhere, the British Consular Officer,’ or if there is no such officer at the port, any two British merchants resident at or near the place, or if there is only one British merchant so resident, that British merchant.
No doubt there will be a Superintendent at practically every Australian port, but an Australian registered ship may go on a foreign voyage, and visit many ports where there is no such official. This renders the new definition necessary, and that is the reason why, throughout the Bill, we have spoken of the Superintendent or some proper authority.
Definition agreed to. “ Go to sea “ includes the getting under way for the purpose of going to sea, plying or running of a ship.
Amendments (by Mr. Tudor) agreed to-
That after the word “ship” the words “or proceeding on a voyage “ be inserted.
That the following new definitions be inserted - “ Take to sea “ has a meaning corresponding with “go to sea.” “ Send to sea “ has a meaning corresponding with “ go to sea.”
Clause, as amended, agreed to.
Postponed clause11 -
If a ship registered in Australia or engaged in the coasting trade goes to sea without a duly certificated master and officers, according to the scale set out in schedule1, or as prescribed, the master and owner of the ship shall be guilty of an offience. . . .
– It was suggested that this clause should be postponed until after we had considered the schedule. We have not yet considered the schedule, and it is impossible to deal with this clause, except upon recommittal, unless we deal with it now. I move -
That “ (1) “ be inserted before the word “ If,” line 1.
Amendment agreed to.
– I move -
That the following new sub-clause be inserted - (2.) Every British ship (other than those registered in Australia or engaged in the coasting trade), when going to sea from any place in Australia, shall be provided with a duly certificated master and such duly certificated officers as are, by the law of that part of the British Dominions in which the ship is registered, prescribed as being necessary for her when going to sea from any place in. that part of the British Dominions.
This amendment is designed to remedy, so far as the Australian trade is concerned, a somewhat curious anomaly in the British shipping law. Section 92 of the Merchant Shipping Act provides that British foreigngoing ships going to sea from any place in the United Kingdom require to carry a certificated master, and a certain number of certificated officers, but it contains no provision for those ships going to sea from any place outside of the United Kingdom. Although ships leaving England are compelled to carry certificated officers as prescribed by the Merchant Shipping. Act, if they came out here our law would not cover them unless we insert this amendment, because they would be British ships. It is to remedy that defect the insertion of this new sub-clause is proposed.
– What is the power to enforce the provision - the refusal of a clearance?
– Yes ; and the detention of the ship.
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 43 - (1.) Except as prescribed, a member of the crew of a foreign-going ship (whether British or foreign) shall not be employed in handling cargo or ballast in connexion with the loading or unloading of a ship.
Provided that the regulations shall not allow the employment of the crew of such ship in handling cargo or ballast where a sufficiency of other labour is available.
Penalty (on master, owner, agent, or charterer) : One hundred pounds. (2.) The regulations may forbid the employment, except as prescribed, of members of the crews of Australian-trade ships in handling cargo or ballast in connexion with the loading or unloading of ships.
– I find upon examination that the clause as it stands will permit of effect being given to the desire of the honorable member for Angas. It will be noted that the regulations may prescribe the conditions under which the crews of ships are forbidden to handle cargo. So far as the Government are concerned I give the honorable member an assurance that, in respect of the landing-places’ of which he spoke, the regulations will prescribe those conditions.
.- I would point out to the Attorney-General that when this clause was previously under consideration other questions than that touched upon by him were raised. I recollect moving an amendment in the first line of the clause to insert after the word “prescribed “ the following words, “ or where, in the opinion of the superintendent or deputy superintendent of the mercantile marine office, a sufficiency of local labour, at rates prescribed by an award or an industrial agreement under the Commonwealth Conciliation and Arbitration Act 1 904- 1 1 is not available.” After some discussion the clause was postponed to enable the Attorney-General and the Minister to consider what should be done.
– That amendment was negatived.
– I understood that a promise was given by the Attorney-General that the question of allowing the crew df a. foreign or British vessel to handle cargo or ballast, under certain conditions, would lie considered. What I then suggested was that, if, in the opinion of the superintendent or deputy superintendent, of the mercantile marine office, sufficient labour was not available at rates prescribed by the Conciliation and Arbitration Court, the crews of those vessels might be employed to load or unload cargo. That seemed a very workable proposition, and I ask the Attorney-General to consider whether a concession cannot be made in that direction. What objection can there be to allowing the crew of a vessel to load or unload cargo under such circumstances? It seems to me that it would be folly to push a very good principle to the extreme limits that are proposed. I am sure that we do not want to stick up a vessel which cannot obtain labour at the highest rates paid in Australia.
– A position might arise in which the honorable member’s proposal would act unfairly.
– If the honorable member objects to my suggestion it must be on the ground that this clause is ancillary to strikes. But how can there be a strike against the rates of wages which are prescribed by the highest industrial tribunal in Australia? I hope the Attorney-General will consider the wisdom of inserting a provision such as I have suggested. If it be not inserted in the Bill I trust that it will be inserted in the regulation^.
– I do not know whether the AttorneyGeneral intends to agree with the suggestion of the honorable member for Angas. But I would point out the way in which that suggestion might work to the disadvantage of the Australian shipping trade. Let us assume that we had industrial troubles on our coast, and that seamen employed on Australian-trade ships refused, because of their sympathy with the shore workers, to do this class of work. It is not a nice possibility to suggest, but still it is one that we cannot altogether overlook. In such circumstances local ships would be held up while foreign vessels, to which our industrial awards did not apply, would be able to continue their trading operations here.
– There would be no justification for a strike if the rates were in accordance with an award of the Arbitration Court.
– The honorable member has taken one set of circumstances, and I am taking another. Cases have occurred where seamen on Australian vessels have been in sympathy with shore workers involved in an industrial dispute, with the result that no cargo has been handled. A foreign ship, if the honorable member for Angas’ proposal were adopted, would be able to handle its own cargo, whilst Australian shipping would be laid up. But for this possibility I should have no objection to the case put by the honorable member. Where shore labour could not be obtained it would be foolish to prevent a ship’s crew from loading or discharging cargo. .We have already made provision for our own shipping in such circumstances, but foreign shipping in the matter of local industrial troubles is in a wholly different position. 0
.- I hope that provision will be made, if not in the Bill, at least in the regulations, for the continuance of a long-established, and absolutely necessary, practice on our coast. At certain ports on the coast of Western Australia, with which I am familiar, there are not many conveniences for handling cargo. In some cases there may be a jetty, while in others there is not. Where there is no such accommodation it is the custom, as soon as a ship comes into port, for lightermen to go out to her with a lighter or barge, and for the ship’s crew to hoist out the cargo with their winches, and to put it over the ship’s side. That cargo is then stowed on the barge by the two or three lightermen on board, and taken ashore. Sometimes the quantity of cargo only requires the barge to make one trip between the ship and the shore, but sometimes several trips are necessary, and the vessel then proceeds on her voyage. In such cases all the work on board ship is done by the crew, the shore men on the lighter only receiving the cargo as it is put over the ship’s side. That system seems to work very well, but if a ship’s crew were prevented from working the cargo in outoftheway ports, where there is not a sufficient supply of shore labour - where, indeed, there is not sufficient inducement to insure a supply of local labour - great inconvenience would be experienced. Sometimes only a few tons, nad sometimes more are discharged or shipped in this way into lighters. There is a very high tide on the north-west and north coast of” Western Australia, and these barges go out with the tide, and come back with it. I do not think any one would complain if that practice were allowed, to continue. I am not suggesting-1 that it should be allowed in ports like Fremantle, Albany, or Bunbury, where there are plenty of lumpers available. In such cases whatever regulations are thought desirable in this respect should be made, but at such ports as Carnarvon, Onslow, Fortescue, Cossack, King’s Sound, and Wyndham, and other such like places, where the trade is not very large, a provision that only lumpers shall lie employed in the handling of cargo on board ship would do a great deal of injury without meeting any actual necessity. So far as I am aware, there is no demand for such a provision. The AttorneyGeneral probably has had some experience of our coast. If he has he will know that the facts are aso I have stated, and that they exist, no doubt, not only on the north-west coasts, with which I am familiar, but at various small ports along the east and north coast of Australia.
– The criticism in which the honorable and learned member for Angas has indulged seems to me hardly to be called for. The clause as it stands is intended to provide for two things. It provides that the regulations shall not allow of the crew of foreign-going ships working cargo or ballast where a sufficiency of shore labour is available, and, in the case of Australian-trade ships, that the regulations may prescribe a similar state of affairs. In the one case the regulations “must” prohibit the employment of crews - that is in the case of foreign-going ships - while in the other they “ may “ do so. It is suggested that there should be imposed some limitation other than those which appear in the clause. I do not agree with’ that. It is perfectly fair and proper that, so far as possible, men who get their living by following a certain occupation shall have every opportunity to get what work offers, and that they should not be made a mere convenience. The point that the right honorable member for Swan brought up relates in practice to that brought forward by the honorable member for Rich.mond, although applying to a different class of trade. The right honorable member is speaking of ports where no shore labour is available. He may rest assured that the regulations, so far as Australiantrade ships are concerned, will not apply to such ports. Where there is no labour available there is no need that they should apply. Where there is no shore labour, there is an end of the matter. In actual practice, the ship-owners and the wharf labourers have agreed that, at certain ports, which are agreed upon, the crews are not to be employed unless there is a shortage of shore labour, and that at other ports the crews may be employed, because, as a fact, and on the whole, there is no shore labour there. For instance, there are some little out-ports along the north Queensland coast. We do not deal with the Western Australian coast, because the Western Australian union is not affiliated with our body, but the unions on all the rest of the coast are. At present, an arrangement has been arrived at - I will not say it is satisfactory to the parties, for it is not satisfactory to the men - and is in force. It takes into consideration the circumstances^ of the case, and where there is no shore labour, the crews work the cargo. All that is proposed under this clause is to see that that which in practice is carried out at the present time, and which equity and a fair regard for the rights of this class of labour demand, shall be embodied in the regulations, and be enforced throughout the country. We cannot prescribe particular ports where this should occur, because a port may be of no importance to-day, and twelve months hence may be most important. We take the power to prescribe ports where this shall apply, and to exempt other ports, and so make it not apply. The clause is a perfectly proper one, and makes those distinctions between foreigngoing and local shipping that are required.
There is one correction that I desire to make. When the clause was before the Committee previously, I said it was most unfair to ask local ship-owners who paid is. 6d. an hour for wharf labour to compete against ship-owners who employed their crews at 6d. an hour. That statement stands so far as some ships are concerned, but the manager of “the Orient Company, in particular, has pointed out that it is not accurate so far as his company is concerned, and I admit that it is not. They pay. their crews, when they employ them, the shore labour rates whatever those rates are. But, speaking generally, and speaking of tramps in particular - and the greater portion of the world’s shipping is done by tramps - those vessels pay their men, when they have white crews, from£3 5s. to £410s., and do not pay them any more for working cargo than they pay for the ordinary work of the ship. The pay, therefore, comes to about 6d. an hour, which is not a fair rate for a foreign-going ship to pay when the local ship-owner has to pay1s. 6d.
– I am informed that the clause as it stands at present is calculated to cause very serious inconvenience. The general practice is to employ shore labour where there is an ample supply of it at the more important ports, and to observe union rates, but the clause leaves it within the sweet will and pleasure of the Minister at any time to cause the greatest inconvenience to shipping proprietors. There are a number of men frequently put upon the crew, paid the full rates of wages, taken to various ports, and utilized for the particular purpose of loading and unloading. That is their special duty. They are not required for working the ship. It will be an extraordinary thing if those extra men, specially employed for that particular purpose, may be prohibited, as contemplated by the clause, from being utilized in the work of loading and unloading. That sort of provision causes a ship-owner grave and serious uncertainty. The Attorney-General has laid it down in very general terms that due regard will be paid in the regulations to those ports where no shore labour is available. That assurance, as given here, sounds well, but it is certainly capable of permitting very great hardships to be inflicted. I believe that for the trade between Brisbane and Normanton, men are specially carried on the crew for the purpose of loading and unloading. While there may be in some of the intennediate ports a few individuals who make some pretensions as to their capacity to do this work, they are quite unequal to it so far as physical and other ability is concerned. I believe there are similar cases in the Gulf trade in South Australia. If we could have an assurance that a liberal interpretation will be observed so far as the regulations are concerned, it would be better ; but the harshest and most rigid powers are taken by the terms of the clause. I understand that certain members of the crew are employed for the purpose of carrying ashore mails, bullion, and specie.
– In Melbourne, for instance, and in South Australia.
– Does the honorable member refer to gold?
– I am not going to say anything about gold. Gold is not reckoned as cargo.
– The terms of the clause are wide enough to include cases of that kind, although I do not think the AttorneyGeneral means that members of the crew should be prohibited from performing the responsible work of carrying mails, bullion and specie ashore. I would urge him, therefore, to modify the clause so as to make the intention clearer. I am also assured that the practice in several of the ports, particularly on colliers, is to employ members of the crew as engine-men and winchmen. I understand that the terms of the clause will preclude that being done in the future, and the crew will have absolutely nothing to do when the ship is in port.
– There is a difference of opinion between the two unions as to whether seamen should be allowed to drive a winch when shore labour is available.
– In the case of those companies which are anxious to employ shore labour wherever they can, the practice is to employ members of the crew for that responsible work; but the clause will certainly prohibit this being done in the future. I would also point out that the Bill provides for an increased manning scale, and, at the same time, prohibits the crew from doing in the future any work that is now done by them in port.
– In practice, the work to be done by the crew will not be diminished by this measure.
– I think that it will.
– Does the honorable member mean per capita or absolutely?
– Oh, no.
– Certainly the owners, so far as they have been able to make representations, are apprehensive that that is the necessary meaning of the clause.
– Ships which are undermanned will be manned properly by the schedule.
– That is so, but there is to be an increased crew, and their duties are to be diminished.
– This clause will give legislative sanction to the present custom.
– Except in regard to the cases I have referred to.
– With all submission to the honorable gentleman, all I heard him say referred to mails, bullion, and specie.
– And also in regard to winchmen.
– Where winchmen are employed now probably they will be employed under the provision.
– I have stated what seems to be the position.
– I know that in Sydney, except on the coastal steamers, winchmen are not selected from the crew. They are always shore labourers.
– I promised to bring this matter under the notice of the Attorney-General, and ask him to consider it. The regulations to be made under subclause 2 may forbid the employment, except as prescribed, of members of crews of Australian-trade ships in handling cargo or ballast in connexion with the unloading or loading of ships. The definition of “ Australian- trade ship “ includes a ship employed in trading or going between places in Australia, and every ship employed in trading between Australia and Territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific. If it were possible, this subclause 2 takes power to prescribe what shall be done as regards loading and unloading in the Pacific Islands or in New Zealand. Of course, we have no power to do anything of the kind.
– I admit that. But in Australia we can.
– Exactly, but the terms of the provision are wide enough to permit the Minister to prescribe what can be done, not only here, but abroad.
– It is a well-known principle of law that every section must be construed in such a way as to be valid and within the power of the legislative body.
– Yes. But I submit that, by reason of the inclusion of Australian-trade ships, the terms of this provision are sufficiently wide to enable the Minister to attempt to do what is obviously unconstitutional. I do not know why it is necessary, in these circumstances, to include Australian-trade ships in the clause.
– It is not unconstitutional at all, but void. The word “ unconstitutional “ has been greatly abused.
– Well, I . will say that the provision is not valid. Why should Australian-trade ships be included in the clause at all?
– The clause is perfectly clear, and whatever ambiguity or invalidity is in it certainly does not arise from the causes which the honorable member speaks of. It appears to me to be perfectly valid, and will only be applied, and construed to apply, to ships within our jurisdiction, and while they are within our jurisdiction.
– I admit that the regulation to be made under the provision may be made valid so long as it is confined to the Australian coast. This is not a mere idle statement which I am making. I think that the unions themselves say that as soon as clause 43 is passed, this prohibition as to loading and unloading in the Pacific Islands will take effect. Of course, I know that it cannot take effect, and I also know that any regulation of the kind would not be valid or justifiable. I would urge upon the Attorney-General that the widest interpretation should be given to the provision so that on the coast no undue or unreasonable inconvenience may be experienced where shore labour is not available as contemplated by traders at present.
– The honorable member for Kooyong is making a great fuss about nothing. All that the clause does is to legalize an established practice all over Australia between waterside workers and their employers. The honorable member referred to South Australia and its Gulf ports. As every school-boy knows - and no one would object to it, either - in some of these small portswhere there is very little cargo, the crew discharge and take cargo aboard.
– That is what I said,, and this provision prohibits that practice.
– The clause will not interfere with the established practice. Does the honorable member suppose that half-a-dozen men are going to stay at some of the “ Gulf “ ports of South Australia on the off-chance of getting six hours’ work a week ?
– Of course not.
– No one outside a lunatic asylum would look for a living likethat. That is all that the honorable member is worrying about. At a port wherethere is any trade, the practice in Australia corresponds with the practice all over the- world. When a mail steamer goes to the Port of London, or any liner goes to a northern port in Great Britain, who unload the cargo? The waterside workers. Who unload the cargo of a sailing vessel in any port in England? The crew do not. It is a well-known fact that the waterside workers do the unloading. What this clause does is practically to give the force of law to an established custom. The honorable member has talked about the desirability of allowing the crew to find the winchmen. The honorable member, if he were a lawyer practising in South Australia, or any State where an Employers’ Liability Act is enforced, would know that as soon as seamen find a winch-man the owner becomes liable for accidents. It is only where shipping companies do their own stevedoring, and there is a mutual agreement between them and the waterside workers, that that is done.
– I am satisfied with the assurance of the AttorneyGeneral that the regulations under sub-clause 2 will provide that the crews of vessels trading to small river ports such as have been referred to will not be prohibited from working the cargo. That gets over the difficulties that have been raised. As for the provision regarding the sufficiency of other labour, I take it that the employment of the crew will be prohibited only where there is a sufficiency of other labour available. It would be a very hard thing if the crew could not be employed where there was not a sufficiency of other labour available. The intention of the draftsman seems to have been that the regulations should prohibit the employment of the crew only where there is a sufficiency of labour on shore ; and that where there is not sufficient labour available the crew should be employed.
Clause agreed to.
Postponed clauses 191, 192, and 351 negatived.
Mr. TUDOR (Yarra- Minister of Trade and Customs [5.30]. - I move -
That the following new clause be inserted - “1a. - (1.) This Act shall not apply in relation to any Australian-trade ship, limited coast-trade ship, or river and bay ship, or her master or crew, unless the ship -
is engaged in trade or commerce with other countries or among the States ; or
is on the high seas, or in waters which are used by ships engaged in trade or commerce with other countries or among the States; or
is in the territorial waters of any Territory which is part of the Commonwealth. (2.) This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this sub-section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extern to which it is not in excess of that power.”
It is a purely legal clause.
– Being legal, it must be pure!
– I do not say that for a moment. The- Attorney-General has given great attention to the subject. I foreshadowed sub-clause 2 when moving the second reading of the Bill. I understand that in consequence of the decision of the High Court in the Kalibia case, in which it was ruled that the whole of the Seamen’s Compensation Act was bad on account of one section being beyond our powers, the Law Department held it to be advisable to protect this measure as far as possible from the same fate. It would be a great pity if, on account of assuming greater powers than we have under the Constitution in some clauses or parts of clauses, the whole Bill were held to be ultra vires. That is the reason for the insertion of sub-clause 2. The legal aspects of the provision can be dealt with by the AttorneyGeneral.
.- This is a very vital clause. It purports to lay the foundation of the whole of our legislation on this subject. It is necessary for us to look very carefully into it, to see exactly what is the jurisdiction which we legislatively assume in the provisions of this Bill. First of all, the measure is not to apply in relation to any Australian-trade ship, limited coast-trade ship, or river and bay ship, or to the master or crew of any such vessel, unless the ship comes within the categories enumerated ; that is to say, unless such a ship -
Therefore, we are dealing, as far as we have jurisdiction, with three classes ot boats. Roughly speaking, Australiantrade ships are what we know generally as our Inter-State boats. Limited coasttrade ships are vessels which are confined to the coastal waters of a State in which they trade. River and bay ships are engaged purely in waters which are within the jurisdiction of a State. It is clear, I think, that section 51 of the Constitution gives us jurisdiction to deal with those vessels engaged in the Australian trade. We have power to deal with trade and commerce with other countries, and among the States, and included in that is the navigation power. . Therefore, as far as these vessels are engaged in InterState trade and commerce, our power to legislate with respect to them cannot be questioned. Paragraph a is, therefore, a proper one. In the Kalibia case, Mr. Justice O’Connor and the Chief Justice both pointed out that section 98 of the Constitution does not extend the trade and commerce power ; it simply declares that our power over navigation is coextensive with our power to deal with trade and commerce, and that power precludes from us the power to deal with trade and commerce of a purely State character. Therefore, it is a proper thing to declare clearly that we have power to deal with trade and commerce with other countries or among the States. But paragraph b is more controversial. In it we assume power to deal with the three classes of ships when “ on the high seas or in waters which are used by ships engaged in trade or commerce with other countries or among the States.” lt is open to doubt as to how,, far we can legislate in that direction. Of course, the Imperial Parliament has undoubtedly power to legislate with respect to British ships on the high seas. But the point arises whether we have power to legislate with respect to an Australiantrade ship or a limited coast-trade ship, which, say, is only engaged in going from Sydney to Newcastle. Such a vessel may go on to the high seas in pursuance of her voyage. This Bill assumes that if such a boat is on the high seas we have power to legislate for her. Certainly there is the point that, while she is on the high seas, she is engaged on a highway used in Inter- State trade and commerce. There is no doubt about that. Under the American Constitution there is power to deal with boats upon the high seas for two reasons. In the first place, the United States is a sovereign nation, with complete power to deal with its own shipping, just as the Imperial Parliament can legislate for British shipping wherever it may happen to be throughout the world. But Australia’s position differs from that of the United
States of America. We are only a Legislature with powers of legislating within the ambit of the jurisdiction conferred upon us. We have not unlimited power to deal with vessels on the high seas. We also differ from the United States of America in this regard : They have power to deal with vessels on the high seas or in navigable waters even though they are within a State, because they come under the Admiralty power of the United States of America. Our High Court has, however, held in the case already cited that we have not power of that kind by virtue of our right to deal with Admiralty matters. All that we can do is to transfer from State to Federal Courts the Admiralty powers of a judicial character. But that does not give us inherent power to legislate in respect of these matters. I must admit that whatever power we get under the Merchant Shipping Act is undefined at the present time. There are two sources of legislation with respect to shipping in Australia - the State power and the Federal power. This may mean - I only make the suggestion - that, when we come to interpret the Merchant Shipping Act, it will be read so as to apply to both Commonwealth and States in their respective spheres. The Commonwealth may possibly be held to have power to deal with navigation of a coastal trade character - a power co-extensive with that to enact navigation laws of an Inter-State character - but there may be left to the States the power over coasting trade so far as that is a matter for their jurisdiction. I hope the wider power will be extended to us, and that it will be held that the National Parliament may deal with the whole of the coastal trade, though it must be admitted that our power in regard to this is open to serious doubt. In the next place we are taking power to deal with Australian-trade shipping, limited coasttrade shipping, and river and bay shipping in waters which are used by ships engaged in trade and commerce with other countries, or among the States. We are passing from the high seas and getting into waters that are within the territorial limits of the States, such as Sydney Harbor, Brisbane River, and Port Phillip. These three large areas of jurisdiction are within the territorial limits of the States, but, while that is so, they are still highways of trade and commerce between State and State. My own opinion is that, so far as they are used as highways of Inter-State trade and commerce, the Commonwealth has jurisdiction.
– Hear, hear !
– Then we have to ask ourselves what is the extent of our jurisdiction, and how far can we interfere. It seems to me clear, that we have .power to make regulations for the rule of the road, the placing of lights, pilotage, and anything that concerns vessels coming in and going out. The question remains, however, whether, under that power, we have jurisdiction over river and bay ships, or Australian-trade ships, so as to interfere with the internal management of local shipping. Whether we can interfere with the manning scale of the boats of the ferry services in Sydney is certainly open to doubt. We are trying to define the limits of jurisdiction; arid we are quite right in asserting, as the Attorney-General asserts, our power over those waters so far as ships engaged n “ trade and commerce with other countries or among the States,” are concerned ; but how far those words apply to the provisions of this Bill is a question. Undoubtedly, we must have some of those powers. What is our power to deal with the ferries, for instance? It is when we take a concrete case like this that we see the matter very clearly. In Hare’s American Constitutional Law, Vol. I., page 458, where the author is dealing with the question of highways, he says -
Ferries stand in the same category as bridges as affording a means of passage across rivers, and intended to surmount the obstacle which they present, and are consequently subject to State legislation, even when they afford the means of communication between different States, and although the boat or vessel is enrolled and registered, and has been inspected under the Acts of Congress. As was declared in Conway v. Taylor, the authority “to ‘establish and regulate ferries is not included in the power of the Federal Government to regulate commerce with foreign nations and among the several States and with the Indian tribes, has always been exercised by the States, and is undoubtedly a part of the immense mass of undelegated powers reserved to the States respectively.
In Chilvers v. The People, a ferry was accurately defined as a public highway or thoroughfare across a stream of water by a boat instead of by bridge; and it was held that the fee exacted by a State or city for the grant of such a privilege is but the price paid for the grant of a franchise or public right conferred on an individual.
Ferries across a river or channel which divides two or more States are, nevertheless, a means of Inter-State commerce which may be regulated by Congress, and cannot be subjected to any State tax or regulation that will operate as a charge or restriction on the intercourse among the
States, which, agreeably to the Constitution, must be untrammelled by any laws that are not imposed by Congress.
Although we may have some power or control over shipping engaged, as in Port Phillip, in river and bay work, we have not complete control or jurisdiction according to the authorities up to the present. I say emphatically, however, that there is complete power within the Commonwealth to deal with the whole, both Commonwealth and State; and I hope that immediately this Bill is passed, the respective State Parliaments will exercise their powers so as to bring their Acts in harmony with ours. We should then have one uniform system throughout Australia by the combination of the Federal and State powers. If that be done, the position will be simplified, we shall have uniformity, and we shall preserve the respective jurisdictions. At present, I am only dealing with those matters on which it is essential there should be uniformity. In the United States of America, although the central Government have power to interfere in port regulations, and all kindred matters, those powers have not been exercised, but have been left to be determined by the local authorities; the central power being exercised only so far as it is necessary to secure uniform national action.
– Does the honorable member believe hat it was intended that the States Parliaments should have power to alter the Constitution without an appeal to the people”?
– I am not suggesting that. In regard to territorial waters of any State, we have ample power, as to the Australian-trade ships, under the Constitution, to secure the necessary uniformity in Inter-State commerce ; and I do not see how our right in this regard can be even questioned, and the same may be said in regard to our jurisdiction over Australian-trade ships, so far as that trade is Inter-State. In regard to limited coast-trade shipping, and river and bay shipping, the Federal power is open to doubt; but. on the whole, with the doubts I have already expressed, the clause seems to me to make a fair assertion of the rights of the Commonwealth, and to be an attempt to bring the measure within the constitutional powers we possess.
– I think that the honorable and learned member for Darling
Downs has very well stated the position. His statement of it needs only emphasis in one or two particulars, which I shall endeavour to supply. Our control in regard to all matters of trade and commerce, under which power we derive whatever power we have in regard to navigation, apart from sections 735 and 736 of the Merchant Shipping Act, as interpreted by the High Court, has reduced the Commonwealth in very many important particulars to an almost hopeless position: In regard to trade and commerce other than navigation and shipping, the position can only be described as hopeless. In regard to navigation and shipping we have the very best of whatever shadow of power remains to us in view of the interpretations and judicial decisions of the High Court. The position of navigation and shipping is rather complicated by reason of the doubt as to whether our power is strengthened or affected in any way by sections 735 and 736 of the Merchant Shipping Act. The view I take is that those sections of the Merchant Shipping Act do not increase our power, which we derive from the Constitution. If we had not the power in the Constitution, however, I take it that we could get it from sections 735 and 736 of the Merchant Shipping Act, so far as the coasting trade is concerned. The power to make laws in respect of navigation other than the coasting trade is entirely derived from the Constitution, and is not in any way dependent upon the Merchant Shipping Act. So much is certain.
I want to point out that the position of the Commonwealth, in regard to navigation, is not paralleled by that of any other Federation in the world. In the United States, upon whose Constitution ours is avowedly modelled, the power in regard to navigation is, to all intents and purposes, plenary. There is in the United States but one navigation law. Owing to the Admiralty power to which the honorable member for Darling Downs referred - wherever it begins, and wherever it ends - being held to be inherent in the Federal Government, supplemented by the power of trade and commerce in the United States Constitution, they can make a navigation law which runs all over and through the various States. That is not our position. We have no Admiralty power. The limitation upon our power in respect of navigation and shipping is that in respect to trade and commerce generally.
That is our power, and no more. Whatever limitation there is in regard to trade and commerce exists in respect of navigation and shipping, subject possibly to sections 735 and 736 of the Merchant Shipping Act. We have taken all the power there is under proposed clause ia. We are endeavouring, of course, to keep within the four corners of the Constitution, but, at the same time, to project ourselves legislatively as far as we can. As we do not know how far we may actually go, we are determined to go as far as we can. The High Court has to tell us later just how far we can go. Applying that to the case before us, with regard to foreign-going shipping, there is no doubt at all, so far as the law applies to navigation and shipping properly so-called. With regard to InterState shipping there is no doubt, so far as the clauses of the Bill relate to navigation and shipping properly so called. With regard to Intra-State shipping, and particularly river and bay shipping, whatever doubts there may be arise in connexion with them. It is clear to me that we have the right, first of all, to make laws as to the rule of the road. That includes the right to insure that navigation and shipping, over which we have control, shall be protected. Therefore, we may prescribe that all Intrastate shipping and all river and bay ships shall observe the rule of the road. There is no question about that. How much further we may go is open to argument. I think I may fairly say that it all depends on whether one takes a broad or a narrow view of the rights of the Commonwealth. Both views are tenable, and as we know, of course, have been taken at one time or another. The rule of the road will cover whatever regulations may be laid down with respect to lighting, and so on. But whether it will cover, for instance, the manning of river and bay, and limited coast-trade ships, water-tight compartments, false bottoms, surveys, and so on, is open to argument. In my opinion a very strong case indeed can be made out that every ship on the high seas or in waters used by ships engaged in trade or commerce with other countries, or amongst the States, must be seaworthy within the meaning of the provisions of this Bill. Every ship must be seaworthy to the extent of being properly manned with an efficient and skilled crew, and in all other respects equipped for the perils of the voyage which she undertakes, and also having regard to the safety of navigation in general. It could never be held for a moment, for instance, that a Hobson’s Bay ship could be allowed under our law to drift about the Bay with her engines broken down, with an inefficient crew on board, or with her steering apparatus out of order. All these things clearly come within our power to control the road. How far we can push this power remains to be seen. I say that everything depends on whether we have a broad, judicial interpretation of the powers of the Commonwealth in this respect, or whether our power is to be whittled down to narrow limits that on a mere technical reading of our power would be possible.
I am afraid that I cannot join for a moment in the hope which the honorable member for Darling Downs expressed, that we may look to the States to bring their laws into harmony with our law. If we can look forward to a time when the six States will bring their laws into harmony with ours, so that although there shall be really seven, and, counting the Merchant Shipping Act, eight laws in existence, and yet they will all be the same, we can look forward to anything. Pessimism has no resting-place in our breasts, and we are the most hopeful persons on God’s earth. But I do deplore the condition of a master or owner of a vessel in such circumstances. He would never know under what law or under whose jurisdiction he was. I will take as an illustration a boat trading from Brisbane to Byron Bay, a distance of about 40 or 50 miles - a mere afternoon’s run. Under our Constitution that is an Inter-State boat. But a vessel which starts from Sydney, and runs to Byron Bay - a clear distance of over 400 miles - which can steam 19 miles an hour, may go tearing through the water, a menace to navigation, and we can say nothing to her. It would be a deplorable state of things if, after a laborious and painful effort of eight years’ legislative incubation, we produced a Bill to apply to some shipping, but to what shipping nobody knows. Nobody ventures to say that the measure is applicable to all ships. Nobody says positively it is not. Where lawyers are united as to the futility and uncertainty of a law the look-out for the unfortunate layman is not very bright.
.- There is one matter which the Attorney-General seems to have forgotten in his dissertation on the comparative powers of the Common wealth and States. Whatever may be the powers of the States, and whatever may be the powers of the Commonwealth, the intention of the people of Australia, when they adopted the Constitution, was to confine the Commonwealth sphere to external commerce and to commerce between the States. Their intention was to confine our power over navigation, so far as it affects commerce, to the class of commerce which I have indicated. Originally the idea of the Convention was to make our navigation powers - as in Canada - part of the powers specifically delegated to this Parliament by section 51 of the Constitution. If that had been done those powers would have been complete. In other words, we would have had a concurrent power which we might have exercised to completely overlay, and, impliedly, to repeal, the legislation of the States. But they deliberately abstained from specifically delegating that power to us in section 51 of the Constitution. Instead, they gave us the power which is set out in section 98 of the Constitution, which says -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.
In other words, they deliberately limited our powers as regard navigation to InterState and external commerce; but we have powers of navigation which are not conferred by the Constitution. The people of Australia - just as they did in regard to many other provisions of our Constitution - deliberately declared that our powers over navigation were to be part of our commerce powers, and were therefore limited to InterState and external commerce. It is all very fine for honorable members opposite and the Attorney-General to complain of the confusion of our powers of navigation because they do not give them what they desire.
– Not one man in a thousand understood that at the time.
– The people understood it just as much as they understood the other provisions of the Constitution. How can the people of Australia sit down as technical lawyers to understand the whole of the implications or expressed terms of the Constitution? They decide only on comparatively broad general principles. The honorable member for Darling Downs reminds me that in the Constitution which was drafted by the Convention in 1891, navigation and shipping were amongst the. subjects to which it was proposed that the legislative power of this Parliament should extend. But that provision was deliberately taken out of the Constitution at a later stage. The confusion which exists is in the minds of those who attempt to overlay the powers which have been distinctly reserved to the States by the people of Australia. I stand for the respect that we ought to give to the Constitution within the clear lines which have been laid down. If the people of Australia expressed clearly any intent it was that we were not to have power* to neutralize the laws of the States by one general law. I do not say that it might not have been a better policy for the people to have given us that power. But that is another consideration. We are not to attain that end by impliedly impugning the intelligence of the High Court Bench, and by saying that we have such a complexity of legal decisions that we do not know where we stand. We do know where we stand.
– We do not.
– If we choose to study the history of the development of our navigation powers from the time they emerged in the form in which they appeared in the draft Constitution until they were finally adopted by the people, we shall see that the line of demarcation which was drawn in the Kalibia case was that intended to be drawn by the people of Australia.
– That is not clearly expressed in the judgment, and I deny that it exists.
– Then what the honorable member says is that our navigation powers have not been fully covered by that judgment. He has stated that our powers are derivable from the Constitution. All I can say is that if he rests our powers on the Constitution he must rest them on our trade and commerce powers. Those powers cover navigation, and navigation is co-extensive with them. Therefore, it seems to me that the decision of the High Court is reconcilable with the idea of the Convention and of the people of Australia, so far as it is expressed in our Constitution, and in the historical development of the various stages from 1891 onwards. I say this because it is due to the Bench that we should not say that our powers have been limited by it in the way that the people of Australia never intended them to be limited.
– Our power is limited also by the decision which has been given upon sub-section 20 of section 51 of the Constitution. If words mean anything, that sub-section confers a certain power upon this Parliament. But the decision of the High Court is that it confers no power upon this Parliament.
– I am not going to be led into a renewal of the debate on foreign corporations. So far as this question is concerned, we are’ not entitled to say that limitations have been placed upon our navigation power by restrictive interpretations given by the High Court. I am not going to say that the Court may not, on some points, be right, and, on others, be wrong. There may be given, as regards the power of severability, an interpretation with which, perhaps, I would not agree, and with which the Attorney-General also might not agree.
– The first Bill - the Kingston Bill - was drafted on the assumption that our power with regard to navigation was plenary.
– What does that mean?
– The Seamen’s Compensation Act was drafted on the same supposition.
– Not altogether.
– Certainly it was.
– The Bill as originally drafted was different from the Bill as finally passed. It was limited, as this is, by another interpretation of our powers, but it was pointed out that if it went to the Senate in that form it would involve such a small modicum of concession to the needs of the seamen that it really would not be accepted as legislation at all. When I held office as Attorney-General, it was so extended as to cover a wider range than the High Court gave it. It was so drafted in order to give the High Court an opportunity to sever from the rest that part of the Bill which might be held to be ultra vires, and to allow the sound part to remain. I have just said that we may not agree with the decision of the Court as to what ought to be the principle of severability. I take a view different from, that held by some members of the High Court regarding that principle, but, at the same time, one must recognise that they gave a very rational account of the reasons why, in their opinion, certain parts should not be severable. Mr. Justice Higgins had another point of view, but we considered that the Bill might have been held to be severable. I do not wish, however, to be led off the track.
If the question of the extension of our navigation power is to be considered, I hope that it will be dealt with from considerations other than the idea that our navigation power was intended to be concurrent with that of the States, and that, because of an illiberal interpretation by the High Court, it has been found not to be concurrent because it is limited by section 98 of the Constitution.
– Our powers with respect to navigation would not have been different had section 98 not been included in the Constitution.
– That does not affect my argument. I do not wish to be misunderstood. If honorable members will have all the facts with regard to section 98, let me say that the reason why it was inserted in the Constitution was that there was a doubt as to whether railways, the property of a State, might be affected on the ground of instrumentality. It was therefore decided to pass what might be described as a general law - part of which might be regarded as superfluous - providing that -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping…..
That might have been left out, for it would have been part of the incidental power given under the trade and commerce section. The navigation power of the United States of America is a purely incidental one, in so far as it arises from the commerce power; but it is wider than our own, because the Admiralty power there is greater than our own. As to the trade and commerce power, I have leanings rather in the direction of the Attorney-General’s policy ; I am simply dealing now with other considerations. The Attorney-General said that we occupied a unique position, inasmuch as we were the only Federation that did not have these wider powers. The commerce power of the United States of America, as a matter of fact, is exactly the same as our own. It is limited to trade and commerce between the States, but the navigation power there is not altogether dependent upon it. It arises there from what is known as the Admiralty jurisdiction. The Admiralty jurisdiction in the United States of America has been held to apply to navigation carried on upon the high seas, or on waters that form a chain of communication between States. It has even been held by some decisions to apply to lakes that are really within the limits of one particular State. They have in America, not only, as we have, a judicial power in regard to Admiralty, but a legislative power. We have only a judicial, and not a legislative, power. We cannot extend the Admiralty power, but in America that power has been held to include navigation, and under it they can extend or limit, just as they please, their Navigation Acts. The reason for this is that, in the United States of America, there is no body outside Congress or the States that can regulate navigation on the high seas. We have the Imperial Parliament to regulate such matters, whereas the American power must be either in the States or in Congress. The Courts were driven, therefore, to hold that the Admiralty power involved a legislative power, and, as it also comprises navigation, the navigation power, in application, can be extended or limited. Under the Admiralty power they can legislate in respect of navigation wherever the waters form a high sea. We, on the other hand, have a very limited Admiralty power. The question of Admiralty jurisdiction is rather complicated, and I am not going into it; but it is practically confined to judicial matters, and they depend very largely upon the powers given by Imperial legislation. By section 478 of the British Merchant Shipping Act, as well as by the Colonial Courts of Admiralty Act of 1890, which, if I am not mistaken, has been embodied in the latest amendment of the Merchant Shipping Act, we have conferred upon, us certain Admiralty jurisdiction. We have also, apart from these powers, as regards Inter-State and external commerce, some other powers given to us by the Merchant Shipping Act. We have, for instance, power, with regard to vessels registered here, to adopt some of the provisions of the Merchant Shipping Act other than those contained in Part II., and we may apply them to any vessels registered in Australia, wherever they may be. We have thus some extra-territorial jurisdiction directly conferred upon us by the Merchant Shipping Act. We have also power under section 735 of that Act to repeal some of its provisions which otherwise would continue to apply to us. In sections 735 and 736, we have what is known as the coastal provision power given by that Act, but inasmuch as our commerce power practically covers the same field as the coastal power, it does not matter much whether it is derived from the provisions of the Merchant Shipping Act or not.
– Except as to reservations.
– That is a very small matter. It refers only to reservations for the Royal assent. The AttorneyGeneral, who thinks our power is derived altogether from the Constitution, nevertheless, being doubtful of the matter,, proposes to reserve the measure for the Royal assent. There is a matter which affects the question whether these Inter-State powers are derived only from our commerce power, or whether, now that our Constitution is passed, they still continue to be derived from the Merchant Shipping Act, and that is, that our power to regulate commerce includes, it is al’leged, the power to prescribe a rule of the road. It has been decided in America that matters such as pilotage, and the lights to be carried., are prescribed by the concurrent power of Congress under the commerce power, independent of admiralty, because the Courts say that if two organs of Government, the State and the Commonwealth, made different rules for a road that is to be used for Inter-State commerce, it would involve a limitation upon the Inter-State power of Congress, and somebody must be able to check the other. They have held there that, where there is a necessity for uniformity, as there would be, for instance, in the case of lights, if there are two bodies that can deal with the subject, the power of final decision rests with Congress. They have held further that the power to prescribe whatever else is requisite for the rule of the road is part of the necessary powers connected with Inter-State commerce ; but I do not think there is any power to regulate manning provisions, and things of that sort which could be equally well dealt with bv a State law. I could show that some of the provisions of this part of the Bill are at least of doubtful validity. For instance, the provision in paragraph b of new clause ia, which says that we have power on’ the high seas, is rendered doubtful by the considerations I have advancedWe cannot have power on the high seas, unless it is part of the external commerce power, which it cannot be, because the Imperial legislation can compass that. We will only have it on the high seas ‘ under our commerce power, if it is Inter-State commerce, and then, of course, being a law of the Commonwealth properly passed, it extends to any voyage on the high seas if the first port of clearance and the final port of destination are in the Commonwealth. Our laws then will go outside on to the high seas, so long as they are laws validly passed under some power given to us by the Constitution1 - that is, under the Inter-State commerce power. I believe that we might very well cut out the whole of new clause ia down to sub-clause 2, inasmuch as we state in sub-clause 2 that “ this Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth.” In other words, we might directly legislate in respect to every class of ship by specific mention - by putting them into particular parts, and passing certain legislation regarding them - without defining the general limits to which we intend to go by our legislation, because we should be attempting to exercise the power that was given to us, and declaring by this saving clause that, so far as we exceeded our power, the High Court was to sever that part from the rest. If this definition of scope is erroneous in any point, it will be invalid, and if the saving clause is sound, it is unnecessary. If the saving clause is unsound, then, of course, I can understand that there is some reason for putting this description of the intended limits of our legislative powers in the Bill.
– Can paragraph b be wider, and carry us any further than paragraph at
– It cannot carry us further; and if it amounts to anything it is a limitation. It would have been far better as a matter of draftsmanship to do what was done in New .Zealand, where it is enacted that “ The provisions of this Act shall be so construed as not to exceed the legislative powers conferred upon the General Assembly by the Constitution Act.” That, of course, is in one sense a truism, but if some clause of that sort had been put in, or even if sub-clause 2 of this clause were left as it stands, we should not require any of the antecedent provisions in new clause ia, because, if anything j they must be a limitation, inasmuch as they cannot go beyond the powers that we have, and, as we cannot exceed those powers, there is no reason why they should be put in. Perhaps they are put in because it is doubtful whether we can pass sub-clause 2, which directs the High Court thus: “ If you find any part of the Act bad you can knock it out, but you must not interfere with the rest of it.” The
High Court will have a very fine job in a Bill of this sort to say what part of it should be preserved, if any particular part is found to be bad. I do not know whether it is not part of the powers of the Judiciary to make a provision of this sort. The point has been suggested. Personally, I think it is all right, and, as I was one of those who suggested the provision, I naturally conclude that the AttorneyGeneral is correct in putting it in the Bill. I agree with the AttorneyGeneral and the honorable member for Darling Downs that we ought to legislate, if it is a good policy, to the full extent of our powers. We ought not, out of undue consideration for the powers of the States, where a matter is doubtful, to cut down our powers of legislation. Whatever the extent of our powers may be, it is a very good principle, if the policy is sound, to say, “ We shall put them on the statute-book.”
Sitting suspended from 6.28 to 8 p.m.
Proposed new clause agreed to.
Amendment (by Mr. Tudor) proposed -
That the following new clause be inserted : - “5A. A ship shall be deemed to be engaged in the coasting trade, within the meaning of this Act, if she takes on board passengers or cargo at any port in a Stale, or a Territory which is part of the Commonwealth, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory :
Provided that a ship shall not be deemed to be engaged in the coasting trade by reason of the fact that she carries -
passengers who hold through tickets to or from a port beyond Australia and the Territories under the authority of the Commonwealth; or
cargo consigned on . a through bill of lading to or from a port beyond Australia and those Territories; or
mails between any ports in Australia or in any of those Territories.
Provided further that the Governor-General may by order declare that the carrying of passengers or cargo between ports in any territory which is part of the Commonwealth, or between ports in any such territory and any other Australian ports, shall not be deemed engaging in the coasting trade.”
– I move -
That the words “ which is part,” line 4, be left out.
I do so because I think that, as regards shipping, Papua should be placed in exactly the same position as the rest of Australia, of which, whether we like it or not, it is a portion. It is true that many arguments can be advanced against the adoption of my suggestion ; but I submit that no more arguments can be used against regulating the shipping of Papua than against regulating shipping on the great sea-board of Australia. In fact, in many respects the arguments are not so strong against Papua as against Australia. At the present time, we pay Burns, Philp and Co. a subsidy for conducting a mail service between Papua and the mainland. With that firm I have no concern. I have no more feeling or regard for them than I have for the rest of the great shipping companies in Australia. I do not suppose that it would need many words from me to satisfy honorable members that there are times when I feel strongly inclined to fight the shipping firms of Australia.
– You are against everybody; we must have ships.
– When we are placing certain restrictions upon the shipping firms of Australia, we have a right to see that there are no competitors in the field who can undercut Burns, Philp and Co., who are required by their mail contract to conform to certain regulations. They must, for instance, maintain a regular service. Of course, there are conditions in the contract which they may not be able to observe, but these cases are provided for. Until this contract was entered into, there was not a regular service to Papua. The present service is not so good as it ought to be, but it is better than the previous one. Unfortunately, in Papua at present there is not enough return trade to insure competition on the part of another company. The Dutch mail-boats call there with rice from the Dutch States for the native population, and carry on a trade with Australia in opposition to Burns, Philp and Co.
– A terrible crime it is to carry on a little trade !
– It is a crime when the Dutch mail-boats are competing unfairly with a firm which is carrying on a business in that portion of Papua.
– What you mean, I suppose, is that they could trade to America, or other foreign country, but not to Australia?
– No; the Dutch mailboats belong to a foreign subsidized company, trade between the Dutch States and Australia, and employ black labour. Under our mail contract, white labour has to be employed on the mail-boats by the contractors, and undoubtedly they are subjected to unfair competition. That Papua would like a better service goes without saying. It is necessary for the development of the Territory that the service should be more frequent than it is. We spend thousands every year on the development of the Territory. I would remind the planters and other residents that it is only possible to keep Papua going by a large subsidy from the people of the Commonwealth. I believe that this year it amounts to ^55,000. Surely, when we consider Papua to that extent, its people ought to consider Australia and Australian conditions.
– It is a terrible amount !
– It is a large amount ; and the Government of which the right honorable gentleman was a member never thought of assisting the people of Papua so generously. The Dutch mail service is only of use to Port Moresby itself. It affords no extra convenience to Woodlark Island and Samarai. I do not think that the return cargo is a fifth of the inward cargo. I ask the Minister to agree to the deletion of the words “ which is part “ ; and for the present - if it is advisable - to place Papua under the same conditions as he will be called upon to place many ports of Australia, until some other arrangement is made for an improved steamer service. 1 think that that would meet the case. I do not believe that the people of Papua would object to our placing their Territory in the same position as the rest of Australia. If the Ministry thinks that the time is not ripe-
– Why is it not ripe?
– I am of opinion that it is ripe, but if the Ministry thinks that it is not, I would point out that no injury will be done by leaving out the words which I wish to delete, because Papua can then be dealt with by proclamation, like the ports of Western Australia, the Northern Territory, and other places to which I understand it is intended to grant exemptions because of their situation. But, in the future, if other steam-ship companies working under Australian conditions send their vessels to Papua, we shall be able to assist them by requiring that all vessels trading between Australia and Papua shall observe Australian conditions. Earlier in the consideration of this measure, I suggested that the Government, if necessary, might increase the subsidy paid for the Papuan mail service, in order that the steamer service might be doubled. I do not think that the money would be ill- spent. It is better that the trade of the Territory should be developed for the benefit of an Australian shipping company than that it should go to a Dutch shipping company.
– I do not suppose that the Dutch company makes much out of it.
– It is not a far cry from Holland to Germany. Do we desire to assist a foreign State which, under certain circumstances, may, in the near future, be hostile to Great Britain?
– Holland is likely to be on our side.
– Germany hopes that Holland will side with her. During the last war in which Great Britain was interested, the feeling shown towards her by both these nations was not very kindly.
– Great Britain was then fighting a branch of the Dutch people.
– Papua is a buffer State between Australia and the East, and needs to be effectively occupied just as the mainland must be effectively occupied. This occupation should be by our own people, not by foreigners who, in time of stress, might turn against us. I do not think any one would say that foreign vessels should be allowed to compete unfairly with Australian-owned vessels. The Opposition has not shown strong evidence of its desire to preserve the trade of Australia to Australians, but no doubt that is its desire, and I cannot see, therefore, why its members should not assist me in getting my amendment agreed to. Papua is only a short distance from the coast.
.- I shall support the amendment. I understand that the object of the Bill is to protect Australian shipping companies. Messrs. Burns, Philp, and Company was the first company to establish steam-ship communication with Papua, and has carried on business in Papuan waters for a number of years, during many of which it was losing money. Indeed, it found it necessary, for the sake of its shipping business, to open stores and develop parts of the Territory. Now that trade has increased, the Norddeutscher Lloyd steamers call at Samarai, and the Dutch boats at Port Moresby. Neither of those lines pav the rates of wages . Messrs. Burns, Philp, and Company’ being an Australian company, have to pay, nor does either of them provide the same accommodation for its crew ; consequently the Australian company is heavily handicapped in the competition.
– Without Protection, it will be knocked out.
– Yes. Both the foreign lines are subsidized, and this Government has an interest in Burns, Philp, and Company, inasmuch as it subsidizes it for the carriage of mails. We are on the eve of great developments in Papua. I understand that the Minister of External Affairs expects that very shortly extensive oil deposits will be opened up there, which will make the Territory a very important place, and we shall not be looking after the interests of our own people, nor those of Papua, if we allow foreign companies to take the trade. As the honorable member for Melbourne Ports has pointed out, we spend a large sum on the Territory every year, and we shall do all we can to develop it. Messrs. Burns, Philp, and Company do a considerable trading on the coasts of Papua, and there, as well as on the wharfs of the Territory, employ a good deal of native labour, which is a benefit to the Territory. I look upon Papua as one of our finest possessions. The climate is good, the natural resources are great, and the soil cannot be surpassed. We should do all we can in this Bill to put Australian companies on the same footing as others. Therefore, I shall support the amendment of the honorable member for Melbourne Ports.
– I hope that the honorable member for Melbourne Ports will not press his amendment, and will not ask the Government to alter the clause as submitted. Australia is undoubtedly under a debt of gratitude to Burns, Philp, and Company for the work they have done. Probably that firm have done more than Australian Governments to encourage and protect British interests in the Pacific. ‘ They have apparently been actuated by a high public spirit, though I am glad to say they have received a good reward for their enterprise. No honorable member grudges them the success they have achieved. This Parliament has always been prepared to pay a very liberal subsidy to the firm for services rendered to Papua. I, for one, should always be inclined to be liberal in granting subsidies whilst Burns, Philp, and Company are carrying on their service, as they are to-day, with white labour.
– We compelled them to do that.
– Yes ; and I would subsidize them liberally to enable them to compete successfully. But that is not the problem now before us. Papua is an isolated Territory. For years past it has had no adequate mail service. The Minister of External Affairs knows, from experience, that his Department has often had to wait three months before receiving a reply to an important official communication. Other vessels are now calling at Papuan ports, and are giving the people there better means of communication. We ought to try to put ourselves in the position of the residents of the Territory. They are in a state of isolation, and that condition will be increased if we exclude or discourage other services. They feel they should be given every assistance in developing the Territory, and getting their produce away. They should be made to feel that, by means of regular communication and the frequent receipt of mail matter, they are not altogether out of the world. There can be no doubt as to the. feeling of the residents on this question. I have before me a copy of the Papuan Times, published at Port Moresby. It shows that a meeting was held to consider the matter. It was pointed out that the residents feel the disadvantages under which they suffer, and the recent development was described as being due to some extent to increased means of communication. They unanimously passed a resolution asking for exemption from the provisions of this Bill as regards Papuan services. I have also received a letter on the subject, informing me that, in addition to the ordinary vessels of Burns, Philp, and Company, there are two other lines calling at Port Moresby each month, namely, Burns, Philp, and Company’s Singapore steamers, and the Royal Packet Steam Navigation Company’s vessels. A steamer belonging to the North German Lloyd Company also calls at Samarai every two months. These companies furnish an improved service and keep the Papuan people in fairly close touch with the outside world. But, if the honorable member’s amendment were carried, these three lines would be excluded from the Bill. Throughout this measure we have given a general protection to Australian ship-owners. We have encouraged them in every possible way. We ought to preserve the fundamental principles of the Bill, and yet it should be framed in such a way as not to do an injury to the outlying portions of the
Commonwealth. This disadvantage would equally apply to Thursday Island and the Northern Territory.
– Not so much to Thursday Island as to Papua.
– Not nearly so much, because Papua is more completely isolated. But the position of the Northern Territory is very important. We ought not to discourage means of communication between it and the rest of Australia. I trust that, on reconsideration, the honorable member for Melbourne Ports will not press his amendment, but will stand by the Government, and by that means assist in giving encouragement to the outlying portions of the Commonwealth.
.- In dealing with a Bill of this character we ought to rise above little local considerations, and discuss it on broad, national lines. The policy of the State Governments in the past in regard to the Pacific Islands has not been such as to promote trade relations between them and Australia. We have now an opportunity to get this trade into Australian hands ; and we should do everything we can in that direction. As a matter of fact, we have in the past been too neglectful of the Pacific Islands, mainly owing to the action of the State Governments.
– There are only coloured people over there !
– Whatever their colour, I am now dealing with a question of trade; and my contention is that, if there is any islands trade to be got, the Australians ought to have it. There is not the slightest doubt that the interests of the natives of the islands would be better conserved if the trade were in the hands of the British race, who have been the pioneers in this part of the world. Whatever we do the Dutch Company will continue to carry rice to Papua ; and the small cargo return that there is ought to be in the hands of Australian shippers. The honorable member for Darling Downs referred to something that has been said in a Port Moresby newspaper ; but we know that the merchants there are interested in the carriage of goods and the conveyance of passengers at the cheapest fares and freights, and I feel confident that even if the Dutch and German boats do trade, those fares and freights will be no cheaper. If Burns, Philp, and Company, or any other shipping company, find that the trade warrants it, they will soon put on new ships, and this will, of course, mean much to the coal and other allied industries. From the purely commercial point of view, it would be well if the whole of the trade of the Pacific Islands were in the hands of Australians, and I cannot see that this could be the means of much loss, if any, to the people of Port Moresby. Of course, one naturally expects the honorable member for Darling Downs to oppose any proposal that is out of the ordinary ; but we on this side are a progressive party, and we desire to restore the trade that State Governments in the past have so much injured. There are no more enterprising people than those engaged in the shipping trade ; they do not build ships for ornament, but only when there is business to be done; and I hope the Government will agree to the amendment. Papua ought to be regarded, from the point of view of Australia, just as Newcastle and Brisbane are, and then, in the near future, I feel sure that we should see a fine fleet of steamers engaged in the trade. The trade with Norfolk Island and the New Hebrides, though large, is only in its infancy; and when I made a trip to the former place in the recess, I found “that the vessels were not nearly commodious enough. My own opinion is that, if they were double the size, there is trade for them. No foreign shipping companies run to these islands; and if enterprising Australian people are prepared to send vessels there and open up trade, they ought to receive every encouragement.
– This is a question on which a great deal may be said on both sides ; and I admit the cogency of the arguments used by the honorable members for South Sydney, East Sydney, and others. I point out, however, that the position of Papua is very different from that of Darwin or any other part of Australia, and for two reasons, one of which is that the geographical position marks it out for separate treatment, if that treatment be not disadvantageous to the place itself. The second reason, and an excellent one, is that, subject to this Commonwealth, Papua is a self-governing Territory. It has a Legislature, nominated, it is true, but one in which the people have some sort of voice. There is power, through Ordinances confirmed by this Parliament, to make laws in respect to the commerce in the Possession ; and, further, we are confronted by a very difficult position. We are speaking about regulating the coasting trade; but that part of the coasting trade we are desirous of regulating or protecting, so far as Papua is concerned, is, from the stand-point of the Papuan, an oversea trade. Papua has its own local coasting trade. I am sure there is no intention on the part of this Legislature to attempt to regulate the local coasting trade of Papua carried on by native boats, and whatever purely local commerce and shipping there is there. The argument presented this evening has been entirely directed to shipping going from Australia to Papua, and from Papua to Australia, and other parts of the world, to the means of communication, in short, which the residents of Papua have with the outside world. That which we call the coasting trade to Papua stands in exactly the same relation to Papua as the oversea trade does to Australia. What we call the costing trade of Australia is what the Papuan would call his local coasting trade, which it is not desired we should interfere with by this Bill. There are two ways in which the matter could be dealt with. One is that suggested in the Bill. Although this Parliament has a direct power over Papua, that Territory has a local Legislature, which may make laws with regard to its trade, subject to this Parliament. We might adopt the suggestion of the honorable member for Melbourne Ports to strike out certain words in the governing clause, and put Papua on the same level as Port Darwin, Fremantle, or any other port in Australia. I have said that argument may be used on both sides of the question, but I think that the balance of argument is in favour of treating Papua as if it were not a part of the Commonwealth. I do not see how we can otherwise get over the difficulty that we have given the residents of Papua representation of a sort. The suggestion of the honorable member for Melbourne Ports would ignore the local Legislature, and take the regulation of the local trade altogether out of its hands. The honorable member proposes that Papua should be treated as if it were an integral part of the Commonwealth. The position of the Northern Territory is entirely different from that of Papua! The people of the Northern Territory are absolutely dependent upon this Parliament. They can do nothing on their own initiative. They cannot amend or introduce a law. Their communication with the outside world will be subject to this Bill, and dependent upon what we provide. Papua is not in that position. With regard to the practical side of the matter, I am aware that the local firm is Burns, Philp,- and Company, but there are competing traders in the Dutch Royal Packet Steam Navigation Company, and, I think,- a German steam-ship company. I have never sought to conceal the fact that when I have an opportunity I am always for the British boat as opposed to any foreign boat. That is an argument which should receive some attention in support of the suggestion of the honorable member for Melbourne Ports. But I submit for all that that Papua has a right to be distinguished in its treatment from the rest of the Commonwealth by reason of its having a local Legislature and a local coasting trade. If the suggestion of the honorable member for Melbourne Ports were adopted we should regulate not merely the traffic from here to Papua, and from Papua to any other part of the world, but the local shipping trade from Samarai to Port Moresby, and all round the coast of Papua.
– It would not matter, so long as it was British owned.
– The only way we could do that would be by exempting that class of ship, . whatever class it might be, that was engaged in the local coasting trade, from the operation of the Bill.
– The local trade is already done by Burns, Philp, and Company.
– And by other companies.
– The question is whether that local coasting trade should be brought under this law or not. The local coasting trade is not intended to be interfered with by the suggestion of the honorable member for Melbourne Ports. It is clear, therefore, that it would cover more than is intended, and I shall leave it at that.
.- When, a few evenings ago, I brought this matter under the notice of the Committee, I had an assurance from the AttorneyGeneral that Papua would be exempted from the provisions of clause 286. I was satisfied, and so, I am sure, were other honorable members, with the honorable gentleman’s assurance, and I am, therefore, very sorry- that the honorable member for Melbourne Ports has revived the matter. If the honorable member were living in Papua or in a port isolated from the rest of Australia, I am perfectly certain that he would take a very different view of this question. I am at a loss to understand the feeling which animates honorable members who are opposing the proposal of the Government in this matter.
– We want to get the trade of Australia into our own hands.
– No one can say that I have not been as strenuous a battler for a White Australia as has any member of this Parliament ; but I say that the White Australia policy is not affected by the provisions of the clause referred to.
– Only we might compel one firm to conform to that policy.
– What my honorable friend proposes is to compel the people of Papua to submit to one firm. An important aspect of the question, which should not be lost sight of, is that Burns, Philp, and Company, who desire to secure a monopoly up there, are also trading in the Territory. The Papuan traders complain that they are being compelled to do all their shipping through Burns, Philp, and Company, and that that firm, knowing exactly the class of business they are doing, and also trading in the Territory, are in a position to reduce their own freights, and compensate themselves by imposing additional freights upon other traders.
– They cannot do that, because they are bound to charges which are lower than Australian coastal charges.
– How are they bound ?
– By contract.
– The honorable member is talking about mails, and I am talking about cargo. He should know that neither Burns, Philp, and Company nor any other company are bound by a contract to certain rates for cargo or passengers.
– They are bound to certain rates for cargo.
– If the honorable member can submit any evidence to show that Burns, Philp, and Company are bound by any agreement as to freights, I shall be willing to accept his statement; but I say the fact is not so. It has never been so; and it is not likely to be so. It is monstrous that the people of Papua should be placed under the absolute control of Burns, Philp, and Company. To adopt the suggestion of the honorable member for Melbourne Ports would be to assist a monopoly of the most exclusive kind, and one that has not, so far, operated for the benefit of . any part of the north. Who are Burns, Philp, and Company? We are told that they are merely an offshoot of the British India Company; that the shareholders are the same, and, although they have local directors, the directorate is practically the same. Surely honorable members will not be led away by the cry of the White Australia policy, which is not in danger in the slightest degree. The Dutch boalts which call there, though they carry black crews, employ white officers, to whom, I am informed, they pay as high rates of wages as are being paid by any shipping company in Australia. Indeed, they pay them higher rates than some of the companies on the Australian coast pay to their officers. I quite indorse what the Attorney-General has said in regard to Papua being geographically separated from the Commonwealth. If the amendment be carried, it will retard the progress of the Territory, which we are spending a good deal of money to develop, and in the progress of which we are intimately interested. No more Britishers will be placed upon these ships as the result of its adoption, and the companies interested will pay no higher wages than they are paying at the present time. It will not add one white sailor to the vessels which are now employing coloured men.
– But it will put other white-manned ships there.
– Why do not they go there now? Simply because the trade does not justify them in doing so. Messrs. Burns, Philp, and Company have such a monopoly of that trade that they could crush any other company which embarked upon it unless it were a very strong company indeed, and no strong company would trade there, because the traffic is not sufficient to warrant it. I hope that the Committee will support the Attorney-General.
.- I do not overlook the difficulties which surround this proposal. I recognise that there is a great deal to be said upon both sides of it. But the argument of the AttorneyGeneral seems to me to be rather faulty. He instituted a comparison between Papua and Port Darwin. Now, the very fact that Papua has a local Legislature draws a very marked distinction between the two places. The AttorneyGeneral would have been on much more solid ground if he had established an analogy between Papua and the Aus- tralian States with whose coastal trade we are interfering. Port Darwin has been specially dealt with simply becausethe Northern Territory has no local Legislature. The Attorney-General also made a great mistake when he suggested that the Papuan Legislature could do as it liked with its own coastal trade. But has not every Ordinance which that Legislature may pass to be submitted for the approval of this Parliament?
– Or of the Minister controlling Papua.
– It is subject to the approval of the Minister first, and of this Parliament afterwards. Now, the coasting tradeof Papua is a matter of intimate concern to Australia. It belongs to Australia. The very fact that under this amendment we would shut out foreign shipping companies, which simply make Papua a port of call, would in the long run be to the advantage of Australianowned and Australian-manned ships. Foreign steamers will not call at Papuan ports unless cargo and passenger traffic await them there. They do not carry on their business on philanthropic lines, and the fact that the Papuan traffic would be closed to them would in itself be an inducement for other companies to establish themselves in that trade, should it warrant them in doing so. The circumstance that Papua has a local Legislature, and that it is therefore competent to deal with its own traffic, subject to the approval of this Parliament, is a reason why the amendment should be adopted. I cannot agree with the Attorney-General in the view which he takes of the coastal traffic of that Territory. What little traffic there is in Papua at the present time is under the control of the company which commands the bulk of the trade between Australia and Papua. That being so, that company would be in a much more handsome position if it were under one law than it would be if it were under two varying laws.
– The honorable member does not suggest that the vessels engaged in the coastal trade there should be manned by white labour?
– I thank the honorable member for that interjection, because if there be one calling to which the native Papuan is particularly adapted it is a seafaring calling. For that class of work there are no more adaptable men in. the Commonwealth than are the Papuans. I should welcome any opportunity which would enable them to become members of a ship’s crew, or to have full charge of their own coastal trade. There are many other reasons which might be urged in favour of this amendment. The ultimate result of its adoption would, I am satisfied, be greatly to the advantage of Australianowned steamers, and very much in favour of British-manned ships.
– The honorable member for Herbert has insisted that Messrs. Burns, Philp, and Company are not bound down to any definite charges in the matter of carrying cargo. I am a little surprised that he should continually contradict my statement in this connexion. I feel hurt over the matter. The original contract with that company laid down certain charges, but when the next subsidy was granted those charges were lowered. At the present time the charges between Australia and Papua are less than those for the same distance on the Australian coast. When we are told that Messrs. Burns, Philp, and Company come into competition with other traders, my reply is that that is natural. I do not see that those traders have any reason to complain, in view of the fact that, there is a fixed freight charge beyond which Messrs. Burns, Philp, and Company cannot go.
– Tell us what it is.
– I will give the honorable member the information to-morrow. I have made a sporting offer to the honorable memberfor Herbert, which is still open to him. I also desire to say that if the amendment be carried, it will be open to another shipping company to enter the Papuan trade, whereas, under existing conditions, that is not possible, because the return cargo from the Territory is very small. The great disadvantage is that coal requires to be carried for the round trip, which makes it a very difficult matter so far as the ships are concerned. I submitthat the trade between Papua and Australia should be placed in exactly the same position as the trade along the Australian coast. We are subsidizing Papua to a very large extent at present. The traders, planters, and business men df Papua, who signed the petition to which reference has been made during this debate, forget that the white population there is taxed just about as lightly as is any community in the world. They have really no cause to complain. Four-fifths of the taxation of Papua is paid by the natives, while the people of Australia pay the rest of the cost of government. They may have some reason to complain of the fact that they are not directly represented in this House, but since they comprise only about 600 adults, I do not well see how, under the Constitution as it stands, they could be given representation. As a matter of fact, as the big grant that we make annually shows, the people of Australia, and their representatives in this Parliament, are paying very considerable attention to the interests of Papua, and its white population should be the last to complain. No taxation without representation is one of the principles of Democracy ; but whilst the whites of Papua have no direct representation in this Parliament, they certainly are indirectly represented, and they pay no taxation either directly or indirectly. In the circumstances, therefore, we ought to reserve the trade between Papua and Australia for Australian shipowners and seamen, who are paying for the development of the Territory. Surely they are entitled to preference as against the foreign merchantmen, who are, and have been for some time, very busy in the East, and wish to extend their trade there at the expense of the British and the Australian taxpayer. We are keeping open ports in Papua for a subsidized foreign mail service. That does not seem to be in accordance with the principles of common sense, and ifr is, to say the least, strange that the Commonwealth Parliament should have been prepared to allow that state of affairs to continue so long as it has done. I should have thought that many members of the Opposition, who have repeatedly expressed their desire to conserve Australian trade interests - and especially the Imperialists, who are alwayswaving the flag and blaming us because we do not do so - would have supported the attitude that I take up.
– What is the honorable member now doing?
– If I am waving any flag at all, it is the flag of Australia, and I am not ashamed to wave it. It should be our duty to encourage Australian trade as far as possible. The Attorney-General has said that if we omitted these words we should go further than I really desire, inasmuch as the effect of the amendment would be to require all vessels engaged in the coasting trade of Papua itself to conform to Australian conditions. Even if that would be the result of the amendment steps could be taken to allow the local trade to be carried on as at present by nativemanned Papuan boats. No one wishes to interfere with that branch of the trade. It has also been said that Messrs. Burns, Philp, and Company have the whole of the coasting trade of Papua. That statement is incorrect. Various traders own their own boats, and the capital of . Messrs. Burns, Philp, and Company is a mere bagatelle as compared with that of one big trading firm, the British New Guinea Development Company.
– Do they man their ships with native labour?
– Yes, the whole of the coastal trade is carried on by nativemanned boats. As the honorable member for Brisbane has said, the Papuan is a splendid sailor on his own coast. Whilst we were there we saw a sturdy Papuan who, having come under Government control, was well fed, and could manage a boat as well as any native I had ever seen. On one occasion we were nearly on a reef, but the Papuan stuck to his oars and averted the danger. We are not complaining of the employment of Papuans in the local coasting trade. While some of the traders of Papua talk of the charges of Messrs. Burns, Philp, and Company, I should like to remind them that they pay as much for the transport of their cargo from the ship to the shore - a distance of about2½ miles - as is charged for carrying cargo from Samarai to Woodlark Island, a distance of 150 miles. The king of Woodlark Island, one of the largest traders there, is allowed to overcharge them without any public complaint on their part, yet they are up in arms because we desire that the trade between Papua and the mainland shall be carried on by Australian-manned boats. There was a considerable hullabaloo over the petition that was drawn up at Port Moresby for presentation to this House. When the residents of Woodlark Island and Samarai came to their senses they recognised that they had been tricked by the residents of Moresby, where the Papuan newspaper is printed, and that the petition had been drawn up in the interests of that port - the only Papuan port at which the Dutch mail steamers call. They, therefore, prepared a counter petition, which, by the way, has not yet been presented, and it discounts, to some extent, the statement in the petition which has been presented to this House, that the white population of Papua desire that foreign boats calling there shall not be required to observe the conditions imposed by this Bill. I desire now to refer to another point. There are ships, not Australian-owned, which trade from the East, and make Sydney their terminal port in Australia. They often call at ports on the Australian coast such as Townsville, and take cargo which they bring to Sydney and place ashore. It is then transhipped into one of the other boats of the same company, and taken along our coast towards India, or perhaps to Europe. I think we ought to insert a provision that, if those ships take cargo for a foreign port, it must be carried in one ship’s bottom, instead of two, during its transit. Our aim is to preserve the coastal trade to Australian ships, and the trade from Townsville to Sydney is undoubtedly coastal.
– Ordinary cargo from Great Britain to Townsville might have to be unloaded at Sydney, and taken on to Townsville by an Inter-State boat.
– I do not mind if it goes on by an Inter-State boat; but the foreign ship will bring cargo from Townsville to Sydney, and then place it in another foreign ship to be taken away. That is purely coastal trade, and ought to be preserved for Australian ships, which have to compete with the foreign ships and at the same time pay higher wages. A foreign ship might also bring cargo from Europe, land it at Melbourne, and tranship it into another boat of the same company going north, which would land it in one of the coastal ports of Australia. That, again, would be coastal trade, even if the cargo came originally from another country.
– They cannot do that under the Act now.
– They can, because the Act does not say that a cargo shall be carried in one ship only. There is nothing to prevent a company doing what I have described in the case of Townsville, be cause the cargo would be originally “ consigned to a foreign port.” That is its destination ; but in transit it becomes part of the coastal trade of Australia. I should like the Minister of Trade and Customs to give the Committee an opinion on that question. If the cargo goes along the coast of Australia at all, it ought to be brought down in Australian ships. Is this clause sufficient to insure that? And does it insure that foreign ships cannot break their journey with that cargo once it is consigned ?
– I think they can.
– I hope the Minister will give that matter consideration. I trust, also, that the Government will help us in our endeavour to keep the Papuan trade as an Australian trade; because, to all intents and purposes, by subsidy and association Papua is Australian territory.
– I hope the Minister will accept the amendment of the honorable member for Melbourne Ports. In Papua we were met by several deputations, and one of the main arguments used by them was mail communication. I do not think the ordinary white resident of Papua would care two pence what this Parliament enacted in this regard, so long as he received his letters often enough. We found, however, that the storekeepers were asking that the other boats should be allowed to call and trade there, because Burns, Philp, and Company had big stores at nearly all the ports competing with the local storekeeper, who seemed- to think that, if he got his goods consigned to him through the company, they would get some inside information and be able to damage him in his business. I understand that Bums, Philp and Company are prepared to grant an increased service. Before the Dutch and German boats began to call there, the residents of Samarai were getting a service of only once every month or six weeks. Now they get it once a fortnight or three weeks ; and I understand that Burns, Philp, and Company are prepared to improve the service.
– Because the other people are squeezing them out.
– By competing against them unfairly with cheaper labour. I cannot understand why such an argument is put up for exemption. It is only two days’ run from Cairns to Port Moresby, and I do not think any honorable member would argue that Cairns should be exempted. It is a four-days’ journey from Brisbane to Cairns, so that there is just as good an argument for exempting Cairns as for exempting Port Moresby.
– Ask the honorable member for Herbert how long it takes to go from Cairns to Port Moresby.
– It took our party barely two days to go across. We left Cairns at 5 o’clock on Friday, and were in Port Moresby early on the Monday morning. That is the regular run. The honorable member for Darling Downs referred to
Thursday Island and Darwin. There is no comparison between Port Moresby and Port Darwin.
– Would you exempt Port Darwin ?
– I do not think that any exemption should be granted.
– I certainly think that some exemptions will have to be made.
– Well, I would only grant an exemption in the case of the coasting trade of Papua. I would not interfere with that trade in any way. Thursday Island is in quite a different category from Port Moresby, as it is on the direct route to the East, and boats will be calling there from time to time. I shall not vote for an exemption from the observance of White Australian conditions on boats. That is the point which I am trying to force home. I consider that the Minister ought to accept the amendment. If an exemption is granted, there is no knowing where it is likely to end. Fancy the idea of asking for an exemption for a place which is only two days’ steam from Cairns ! If this exemption is granted I consider that every other company which is trading round Australia will be entitled to a similar concession. As regards improved means of communication, there is a way in which the Government could meet the situation. If they are not satisfied that Burns, Philp, and Company are supplying a sufficient service for the people of Papua they ought to provide a boat of their own. There is nothing fresh in that idea, because they have already purchased a boat for Port Darwin. What is the difference between doing that and finding means of communication for another Territory ?
– That is not to be a trading boat.
– So far as the Northern Territory is concerned the Government will be running a trading boat there.
– I do not think so.
– I do not see why the Commonwealth should not use a boat for that kind of business.
– I am afraid that the amendment, if carried, will do far more than any honorable member intends. Something might be said in favour of assisting the trade from Port Moresby and Samarai to Australia, but I do not think that any honorable member desires that the coastal trade of Papua should be subjected to the same conditions as will prevail on the Australian coast.
– I am not asking that.
– I have discussed this matter with the law-advisers, who tell me that the amendment, if carried, will have that effect. I recognise that if the amendment is carried, and does more than we intend, it will not be a good thing for Papua. If we reject the amendment it is quite possible that an injury may be done to an Australian firm, and an advantage given to other people. Under clause 286, which has been passed, power is given to the Government to exempt certain ports. I think that this power will be found to act very beneficially. A monopoly is not likely, to raise the rates for passengers and cargo too high, or to run a too infrequent service. On the contrary, it will do the best it can, because it will know that, if it does not, the ports may be thrown open to others. If the honorable member for Melbourne Ports will withdraw the amendment, and allow the clause to pass as it is, at the recommittal stage I shall give him an opportunity, if we cannot accept his amendment or a modification of it, not to have a debate, but to test the feeling of the Committee. I do not see how it affects the White Australian principle at all, because this is an entirely outside trade.
– It is all Australian trade.
– I prefer to be guided by the advice of the Crown Law Officers, who say that it is not Australian trade. If honorable members will pass the clause as it is I shall try to have this matter looked into, and acquaint them with the result to-morrow, when we come to the question of recommittal.
– I move -
That the words “ passengers or,” line 3, be left out.
I do not wish to take up the time of the Committee, but I feel that, in order to be [consistent- with the action I took previously, I ought to move in this direction. In this amendment I am asking for more than I asked for in the amendment which was not carried, because it means that vessels, carrying passengers only, and not cargo, shall not be deemed to be engaged in the coasting trade. My desire is to help those who are developing the country.
– We have already dealt with an amendment to a later part of the proposed new clause. The honorable member cannot, therefore, move his amendment at this stage.
.- I wish to move the insertion after the word “Territory,” in paragraph c, of the wOrds, “or carries passengers or cargo between any port of call and Thursday Island or Port Darwin.” But before moving it, I wish to know whether the Minister will accept it.
– I cannot accept it.
– In that case, it would be useless to move it, because I cannot hope to carry it against the opposition of the Government.
– A proviso in clause 286 allows certain ports to be exempt.
– There is another amendment I should like to move, the addition of a proviso which, with slight modification, I have taken from the Bill of 1907.
.- I have a prior amendment. I move -
That the following words be inserted at the beginning of paragraph (a) : - “ being a mail steamer passengers so taken on board at any port in a State or in the case of any ship “.
The object I have in view is to prevent the prohibition of passenger traffic between ports by mail steamers. An amendment which was not so wide as this was negatived earlier in the consideration of the Bill, but I hope that honorable members, having reconsidered the matter, may now be of a different opinion from that then expressed by a majority. I have no desire to interfere with, or do other than encourage, the local ship-owners and those in their employment. I wish to give the shipping industry of Australia all the protection and assistance possible, but, in existing circumstances, I do not think that that should be done at the expense of the people of the country by inconveniencing them to an unjustifiable degree. Throughout the measure, we have been considering the interests of the ship-owners of Australia, and of those whom they employ, and in this I am quite in accord; but on the question before us I think we have not had sufficient regard for the general public, and while I should very much regret doing anything to inconvenience those interested in shipping, I think that they should be inconvenienced rather than that the general public should seriously suffer. Our first care should be the interests of the people of Australia, the producers, and pioneers. Scattered along our 8,000 miles of coast is a large population which possesses no other means of getting from; place to place than by sea. It might well be thought, from the attitude of a large part of the Committee towards these people, that they are in a satisfactory position so far as means of transit are concerned, and it is hardly believable that it is proposed to reduce their facilities for travelling, when we should make every effort to increase them, and so to encourage settlement and the development of our Territory. For the most part, honorable members opposite live in cities, and seem to be neglectful of those who live in the back-blocks, and in remote situations on the coast. They seem to act and speak as if these pioneers and producers were provided with railway communication and other means of land transit. They seem to have no sympathy with the pioneers and residents who are scattered around some thousands of miles of coastline. It is difficult to find language strong enough to denounce the ideas which we have heard expressed in this chamber, and. which seem to altogether ignore the interests of a vast number of people in this country. If my amendment were carried, the advantage conferred upon those who are building up this country would be immeasurably greater than any disadvantage which any one would suffer thereby. The cargo traffic of Australia provides the main item of revenue for ships. We do not want to interfere with a monopoly of the cargo trade for British ships. I do not think that it is very wise to make an absolute hard and fast rule, even in regard to cargo ; but still I do not advocate any amendment in that respect. In regard, however, to facilities for travelling for people who are willing to go out into the distant parts of this continent to make homes there, and to build up the country, I do say that no obstacles as to the means of personal transit ought to be placed in their way. We should give them greater facilities. This is a question of what is best to be done in the interests of the country as a whole under our existing circumstances and conditions. We cannot get all we want at once in a new and sparsely scattered country like Australia. Honorable members opposite have their ideas, and want to see them realized forthwith, altogether unmindful of the injury they do to others, and altogether lacking in sympathy for those who are placed in difficult circumstances. It is unwise, and indicates a want of knowledge and experience, to impose obstacles to the travelling of people who live in the distant parts of Australia. Some attempt has been made to-night to interfere with the travelling facilities of those resident in Papua. It is absolutely foolish and ridiculous to do so. Such a policy at this time ought to find no place in the legislation of this country. We have an immense area to settle, and scant means of communication along our coasts. Under these circumstances, to place any hindrance in the way of passengers going to and fro in the pursuit of their business is a suicidal policy. It can do no credit to any one, and must be injurious to the best interests of Australia.
– I gather from the very vigorous remarks and gesticulations of the right honorable member who has just sat down that he takes exception to a proposal in the Government Bill. I can pass over the reflections which he was pleased to pass upon some of my unfortunate colleagues who have spent their lives in cities. After all, we are concerned now with navigation, and I do not know that ships are any more frequently to be found in the desert parts of Australia than in the large cities. They appear to abhor both. I should like to point out to the right honorable member what the effect of the clause is. Apparently, he is not aware of its meaning. I am perfectly sure that whatever the right honorable member’s reputation may be as an expert in Australian travel, he does not understand his way through the mazes of this clause. I will, therefore, try to explain it for him. Of course, he has been assisted by the honorable member for Angas, but that honorable member was giving him the sort of counsel which a skilful lawyer, gives to a client possessed of a temper like the right honorable member. He tells him that which will please him most.
– The object is clear enough.
– The foundation and source of the wisdom of the Government in this matter was the Bill to which the right honorable member for Swan lent the mgm of his support during the time when he was a member of the Government in 1907.
– I was not in the Government then.
– Satan denouncing the Archangel who ejected him from Heaven could not be more peremptory and didactic about the matter than the right honorable member’s denial. The Government of which he was a member introduced a measure containing this provision.
– I was sitting in the Corner then.
– This is a measure which was handed down to us as an heirloom.
– I resinned.
– The right honorable member was sitting here when I was a member of the Royal Commission in London.
– Of course.
– Well, this is the very thing that I advocated in London at the right honorable member’s suggestion, and I may say that it created no small sensation. Now the right honorable member turns round and repudiates both the Bill and myself. The Bill of 1907 provided that the Governor-General might exempt any British ship trading between Western Australia and the eastern States if he were satisfied that that course was desirable, either unconditionally or subject to such conditions as he might think fit to im-‘ pose for a term of three years. That was the extent to which the Government, of which the right honorable gentleman was either a member or a bitter opponent, went ; that is the clause which he accepted, when he came into the Government, if he was not a member of it already, as his gospel, and stood by, until we put an end to him and his lucubrations in that direction. The right honorable gentleman has said that there was a special clause exempting Western Australia, but that special clause was put in at the instance of the Royal Commission over which I had the honour to preside, and it did not go as far as the one that was already in the 1907 Bill.
– There was a Bill before that - in 1904.
– The right honorable member is a political Thomas, who will put his finger into the holes every time. The Royal Commission recommended that the exemption should extend only to the carrying of passengers by mail steamers between Western Australia and South Australia, pending the connexion of the railway systems of those States. The right honorable gentleman’s proposal in some respects went far beyond that, and, in other respects, it did not go so far; our recommendation was more definite, while his was more extensive. The clause before us defines the limits inside which we may exempt ships from the operation of the coastal-trade provisions. The right honorable gentleman has left the chamber just as I was about to point out that the Governor-General may declare that the carrying of passengers between specified ports in British ships shall not be deemed to be in the coasting trade. This means that any ship trading from Fremantle to the East, or from any Western Australian port to any other Western Australian port, may be, by proclamation, exempted from the operation of the Bill. I say, therefore, that there is implicit authority to exempt any port or any number of ports if the convenience of the public so demands. The provisions of the Bill are not only amply sufficient, but much more elastic and comprehensive than those in any of the previous Bills that have been before this Parliament.
– The Attorney-General has scarcely done justice to the -right honorable member for Swan. In the first place, the clause referred to by the Attorney-General was contained in the Bill of 1904, introduced by the Ministry of which the right honorable member for Swan was a member. This was before the Royal Commission sat, and, further, the other clause referred to by the Attorney-General was also prior to that date. It will be seen, therefore, that, so far as the right honorable member for Swan is concerned, he has been quite consistent right through.
– This clause goes a great deal further than any of the clauses supported by the right honorable member for Swan.
– The Attorney-General has uttered some gibes at the expense of the right honorable member for Swan, implying that these clauses had a later origin than they really had. As a matter of fact, the right honorable member for Swan has all through advocated what he is now advocating, namely, a statutory enactment of what he desires. I am not suggesting that the phraseology of the right honorable member for Swan should be adopted, but it is only fair to say that that gentleman has been perfectly consistent.
– Only in his inconsistency has he been consistent.
– Not at all. He has made an appeal to us to consider the extraordinary position of Western Australia, and to embody his expressed wish in the clause. I urge the Minister now to give some assurance that, so far as Western Australia is concerned, the exemption will be granted in the way indicated. The honorable member for Herbert, with a sweet persuasiveness which no one can resist, has pleaded his own case, and is going to get, as he deserves, what he desires. I urge that the claim of the right honorable member for Swan is just as reasonable. As he has pointed out, the people of Western Australia are isolated, and they desire to secure effective sea service until the railway is completed. The right honorable member for Swan has not said anything against Australian shipping, and the AttorneyGeneral might have been more generous.
– I think it would be safer to accept the amendment than to rely upon the proclamation. The objection I saw to the proclamation when the question was raised before was that it differentiates between the ports of one State and the ports of another. If that be so, the proclamation could not be issued. There is, on the other hand, no question about the validity of the proposal submitted by the honorable member for Swan. It makes no differentiation between one part of the Commonwealth and another. On that ground alone I believe it would be better, if the Minister intends to exempt any vessels, that he should do so by a method which is open to no objection.
.- I move -
That the following proviso be added : - “ Provided, further, that the Governor-General may, by order, exempt any ship from all or any of the provisions of this part of this Act, either unconditionally or subject to such conditions as he thinks fit to impose for any period not exceeding three years.”
The proposal I make, and that submitted by the honorable member for Swan, are not on the same plane, because Western Australia has already a first class service of Australian-owned ships running under Australian conditions, whilst the ports I desire to serve are in an entirely different position. My object is to have Port Darwin and Thursday Island exempted from the provisions of this clause. Port Darwin is in a singularly isolated position, and, with the exception of comparatively small boats of the Matunga class, run by Burns, Philp, and Company, on a monthly service, is dependent for communication with the rest of Australia almost entirely on foreignowned ships. A number of ships, foreignowned and otherwise, call at Port Darwin, amongst them vessels of a German line, the E. and A. Company’s vessels, the China Steam Navigation Company’s vessels, a Japanese line, and a Dutch line. If this clause is not amended, all these boats will be prevented from taking passengers from Port Darwin to any other port in Australia, and a resident of Port Darwin, wishing to go to Sydney or Melbourne, or any other port in Australia, will be compelled to ship, first of all, to Singapore or Batavia, and go from there by the vessels named to the Australian port he desires to visit. .He must follow the same course on returning to Port Darwin. That would be a condition of things which we should not allow to exist in connexion with our coastal trade. We are spending a great deal of money on the development of the Northern Territory, and if we isolate it in the way proposed by this clause, we cannot expect to make any progress there whatever.
– The proviso submitted by the Government should suit the honorable member.
– It might cover the position of the Northern Territory, but the amendment I have moved will also meet the difficulty of shipping at Thursday Island, which is in almost exactly the same position as Port Darwin. The foreign-owned ships to which I have referred call at both ports. My amendment would permit the exemption of any ship, and I direct attention to the fact that I am asking that the proviso should continue to operate for three years only.
– We have the same difficulty on the north-west coast of Western Australia.
– I admit that. But the north-west coast of Western Australia is represented in this Parliament. Port Darwin is not represented here, and I am not likely to receive either kudos or votes for the action I am taking, which is in the interests of the Territory only, and in which I am not personally interested in any way. In pleading for . Port Darwin, I put forward a case which should appeal to honorable members in the strongest possible way. If the Government will not agree to my amendment
I may have to move later that shipping from Townsville should be exempted. That would mean that cargo and passengers would have to be carried by Australianowned and British boats as far as Townsville, and from there might be shipped in foreign boats.
– The honorable member cannot discuss that matter.
– 1 am suggesting that if the Minister will not do one thing he may have to do another. I am submitting a most reasonable amendment, and I should like to know definitely from the Government whether they are willing to accept it. If they are not, it will be of no use for me to press it to a division, because 1 know the Ministry will have behind them a phalanx of honorable members who are absolutely lost to reason.
– I cannot accept the amendment.
.- I am sorry that the Minister has not lent a sympathetic ear to the honorable member for Herbert. There is no power under the Bill to accomplish what the honorable member desires. He asks, not only for the exemption of British ships, but of foreign ships. Under clause 286, as .amended, the Governor-General may, Dy order, declare the carrying of passengers between specified ports of Australia by British ships as not to be deemed as engaging in the coasting trade. The proviso to which the Minister of Trade and Customs has referred would apply as between the Commonwealth and the Northern Territory, but it would not apply as between ports of a State. Unless the honorable member for Herbert presses his amendment, he is not likely to secure what he desires.
.- I consider the amendment proposed by the honorable member for Herbert to be necessary, and I am in accord with it. The chief means of communication with Port Darwin has been by foreign-owned vessels, trading from Sydney, and calling at Port Darwin for supplies of coal. When this Bill becomes law, the residents of the Territory will be deprived of that convenience, unless under Ministerial favour. I should like to know how much good we shall do to Australia by bringing that about ? The number of passengers by these vessels is comparatively few, and yet the Bill will prevent them taking advantage of the means now available to them to travel with some degree of comfort to and from
Port Darwin and other parts of Australia. Much inconvenience may not be suffered in connexion with the transport of cargo, because, I suppose, ships with inferior accommodation may be sufficient for that traffic.
– Port Darwin isprovided for in the proviso.
– I was not aware of that fact; but, after all, it is only possible at the will of the Government. But that port represents only a part of the difficulty. What about the ports on the north-west coastof Western Australia? There is a line of British ships trading from Singapore to Fremantle via the north-west portsof Australia. Are they to be prohibited from carrying passengers? They will not be able to secure an exemption, I suppose. The only cure that I can see for all this prohibition and interference with the right ofpersons to travel by sea, when no other means are available, is for the electors of Australia ‘to rise up in their wrath and hurl this Government from power.
Proposed new clause agreed to.
Amendments (by Mr. Tudor) agreed to-
That the following new clauses be inserted : - “8a. The Governor-General, where he is satisfied that the laws and regulations of any part of the British Dominions relating to any subject-matter dealt with in this part of this Act are as effective as the provisions of this part, of this Act relating thereto, may by proclamation direct that (subject to such conditions, limitations, and exceptions as are expressed in the proclamation), on proof of n ship registered in that part of the British Dominions having complied with those laws and regulations, she shall not be required to comply with the provisions of this part of this Act relating to that subject-matter.” “ 70. - (1.) Payment under an allotment note shall, except as provided by sub-section (2.) of this section, begin at the expiration of one month from the date of the agreement, and shall be made at the expiration of every subsequent month after the first month, and shall bc made only in respect of wages earned before the date of payment. (2.) By agreement with the master, an allot ment note may be granted to a seaman providing for payment at a period earlier than one month from the date of the agreement, and at intervals more frequent than one month.” “ 196. Subject to the power of the Minister to extend the time for re-survey, every steam-ship shall be surveyed once at least. in every twelve months by the prescribed surveyor.”
House adjourned at 10.15 p.m.
Cite as: Australia, House of Representatives, Debates, 17 October 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19121017_reps_4_67/>.