4th Parliament · 3rd Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
– On Friday last I asked the Minister of Home Affairs whether he was in a position to make a statement regarding matters in the Northern Territory, and, at his request, I repeat the question now?
– The Administrator returned to Darwin on Friday, and on Saturday met a deputation of the men. There were two or three difficulties to adjust, the chief one relating to the starting of work at half-past 7 in the morning. By reason of the refusal of some of the men to commence at that hour, they have been working beyond the gazetted time, and made a claim for overtime, which the Administrator did not feel called on to pay, while some other men who had gone to Darwin under agreement had been summoned for not doing their work in accordance with the contract they had entered into. The proposal of the Administrator to the men was that they should start at half-past 7 in the morning, the gazetted hour, in which event he would pay to them the overtime asked for, and withdraw the Court cases in respect to those under agreement. After two conferences, I am glad to say that the men determined to do what the Administrator desired, and at the present moment everything is satisfactory.
– Is the Prime Minister prepared to state the intention of the Government regarding the abolition of the Excise and bounty on sugar? I ask the question in view of the resolution passed by a public meeting of cane-growers which was recently held at Isis.
– At present I am not in a position to make a statement on the subject, but hope to do so next week.
– Has the Minister of Home Affairs done anything with a view to discovering the cause of the discrepancy between the statement of the Common wealth Statistician and that of the Chief Electoral Officer regarding the enrolments in the various States?
– After the honorable member for Franklin had drawn attention to the matter, I saw the Commonwealth Statistician and the Chief Electoral Officer, and asked them to consult together, and furnish a statement to me on this subject, with a view to making any adjustments that might be necessary ; but the Chief Electoral Officer is now ill, and it has not yet been possible for them to frame a report.
– Does the Minister of Home Affairs intend to make any increase in the allowances paid to Returning Officers and the Assistant Returning Officers?
– The Chief Electoral Officer is now going into the whole question, and I shall be able to give a report shortly, at any rate as soon as the officer has recovered from his present indisposition.
– Has the Minister of Home Affairs received the maps showing the redistribution of electorates in New South Wales ; and, if so, when does he propose to give the House an opportunity to deal with them ?
– I hope on Thursday to submit the necessary motion. I now lay on the table maps which are so coloured as to show the changes made.
-Has the attention of the Minister of Trade and Customs been directed to a cablegram recently published in the press, in which it was stated that Mr. Charles Powell, the Chairman of the London Chamber of Commerce, Leather Section, in his evidence before the Empire Trade Commission, said that the methods of branding and flaying cattle followed in Australia result in an estimated loss of about 500,000 compared with the Argentine? If so, will the honorable gentleman take steps to bring these facts under the notice of our stock-owners, so that the evil may be remedied?
– The cablegram has been brought under my notice. The estimate of loss is, I think, slightly exaggerated. Stock-owners have been informed of the advisability of giving more attention to the proper flaying of beasts, and the use of smaller brands. Two sides of leather have been brought back from England to show the enormous waste that occurs, and it is proposed to exhibit them. It is, however, for the owners of stock to take action. The Government has no power to compel them to use small brands without probably penalizing our own tanning industry.
– It could put an export duty on hides not branded in the manner thought desirable.
– In that case the best hides would be sent away, and the worst retained for use in Australia.
– Is it not better to use a big brand than to have neither beast nor hide. The stock-owners know what they are doing.
– I believe that some of the stock-owners take the view indicated ; but 1 consider the people of Australia are as honest as those of any other part of the world, and if a small brand is sufficient in the Argentine and other countries, I do not see why it should not be sufficient here.
Postmen’s Forage Allowance - Railway Late Fee Letters - Lighting of Post-offices - Boy Labour - Northampton Post-office, Western Australia.
– I wish to know from the Postmaster-General whether any decision has been arrived at in regard to increasing the forage allowance given to postmen in New South Wales? If it has been decided to increase the allowance, when will the decision take effect ?
– There has been no decision; I am waiting for information from some of the States. I hope to be able to give a decision within a week.
– Is the statement in this morning’s Age correct, that letters posted at a number of railway stations in Victoria are not charged the late fee?
– No; but, as I have previously stated, I am getting a return prepared showing the distance of the railway stations from the post-offices in all the
States, with a view to giving special consideration to those places where the stations are at a great distance from the post-offices.
– I wish to know from the Minister of Home Affairs whether the experiments for the better lighting of post-offices have yet been completed. If not, will he send a chaser after those responsible?
– Several chasers have been sent out, but none of them have done what was needed. I hope to make a report on the subject shortly.
– I wish to draw attention to a sub-leader in the Hobart Daily Post of the 25th inst, wherein it is alleged that toy labour is employed in the post-office to do work that should be done by men, and it is mentioned that a boy of fifteen years of age is employed in delivering letters in Hobart. Will the Minister have inquiry madeinto this allegation, with a view to remedying this state of affairs?
– Yes ; but I might state, at the same time, that it is not the custom of the Department to utilize the services of any one under sixteen years of age in delivering letters.
– Is it a fact that the Department has already decided that an additional forage allowance shall be paid to postmen in New South Wales?
– I explained the position to the honorable member in reply to a previous question.
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are -
Mr. SPEAKER reported the receipt of a message from His Excellency the GovernorGeneral recommending an appropriation for the purposes of this Bill.
Mr. KING O’MALLEY laid upon the table the following papers: -
Electoral Act - Telegrams from the Commissioners, making certain corrections in their Report prepared for the purpose of the redistribution of the State of New South Wales into Electoral Divisions, which was laid on the table of the House on the 24th instant.
Ordered to be printed.
Electoral Divisions of New South Wales - Maps (2) showing Boundaries as at present and as proposed in the Redistribution Report laid on the table on the 24th instant.
Lands’ Acquisition Act - Land acquired under, at Turramurra, New South Wales, for Postal purposes.
asked the Treasurer, upon notice -
What is the average number of copies of the Commonwealth Gazette issued every week?
– Three thousand two hundred and fifty.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of Trade and Customs, upon notice -
Whether he will lay on the table of the House all correspondence between his Department and Mr. A. O. Norman in reference to the latter’s claim to the discovery of the causation of Bitter Pit in apples and all Reports and other documents in connexion therewith?
– In view of Mr. Norman’s threat that he proposes to take action against the Government in connexion with his alleged discovery, I do not consider it would be expedient to place the papers on the table of the House. If, however, Mr. Norman concurs, the correspondence will be made available for perusal by the honorable member.
Retiring Allowance to Noncommissioned and Warrant Officers - Military Officers’ Uniforms - Temporary Naval College, Geelong
– Can the Honorary Minister say whether anything has been done in order to grant some allowance or gratuity to the non-commissioned officers and warrant officers who are about to retire because they have reached the age limit ?
– I am not aware that a gratuity is due to any officer leaving the service under those circumstances.
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are -
Mr. W. ELLIOT JOHNSON (for Mr. Kelly) asked the Minister representing the Minister of Defence, upon notice -
What is the estimated cost of establishing a temporary Naval College at Geelong?
– The answer to the honorable member’s question is -
The estimated cost of the establishment of this College is£13,000, which includes an amount for material that will subsequently be available for removal to the permanent College at Jervis Bay.
Building Timber - Suggestions of Name
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of Home Affairs, upon notice-
Will he appoint a Select Committee of this House to consider and report as to a suitable name for the Federal Capital?
– I cannot say definitely. The matter will be considered. No doubt the name of the Federal Capital will be submitted to Parliament in some way before being finally determined upon.
Timekeeper - Powellised Jarrah and Karri Specimens.
asked the Minister of Home Affairs, upon notice -
Will he lay on the table of the House all papers concerning the appointment of Mr. Callary as timekeeper on the Kalgoorlie-Port Augusta railway, which was referred to in the South Australian Parliament last week?
– If there are any papers connected with this matter, I shall have them laid on the table of the Library to-morrow. I have not heard of any papers connected with it.
asked the Minister of Home Affairs, upon notice -
– I telegraphed to the Premier of Western Australia with regard to the honorable member’s questions, and have received the following reply : -
Your telegram 21st re Sir John Forrest’s questions. Dates when powellised and untreated specimens of jarrah and karri exhibited by Westralian Powell Wood Process Limited were placed in ground and taken out, respectively, 14th September, rgo8, and nth February, 1909. Resident Engineer Young certified. His Excellency the Governor was present on 7th this month at inspection of powellised and -untreated karri sleepers laid in Bunbury line on r6th November, 1906. Samples removed, treated sleepers quite sound, untreated attacked with dry-rot. Also produced at same time pieces of powellised karri 5 ft. 10 in. and 7 ft. ir in. long by 9 inches and 4½ inches, taken out 5th October, 1912, from culvert, which was built on 28th April, 1908, for test purposes of powellised karri inside old jarrah culvert on Woonerup line, which had been destroyed by white ants. The powellised karri was found to be perfectly sound, no sign of dry-rot or white ants.
The samples recently exhibited in this House were handed to the Western Australian representative of the Westralian
Powell Wood Process Limited, and by him forwarded to the Victorian office of the company, Equitable Buildings, Melbourne, about February last, and within a few days sent up to the Department of Home Affairs.
In Committee (Consideration resumed from 24th October, vide page 4683).
Postponed clause 21 - “ (2.) An appeal shall lie to the Law Officer or, by leave of the Law Officer, to the Court from any decision of the Registrar under this section.”
Upon which Mr. Fairbairn had moved -
That the words “ by leave of the Law Officer” be left out.
.- I should like the Attorney-General to say whether he has given consideration to the question I brought under his notice last week of the advisability of allowing an appeal to the Law Officer in all cases of any decision or determination on proceedings before the Registrar. I find that in section 26 of the Victorian Patents Act it was provided that an appeal should lie from the Registrar to the Law Officer in the case of any decision or determination by the Registrar. I wish the AttorneyGeneral to consider whether it would not be advisable in all cases in which a decision or determination, of the Registrar affects the rights or property of individuals to permit an appeal direct to the Law Officer. In our Trade Marks Act, under sections 34 and 35, an appeal direct to the Law Officer is given from any conditional acceptance or refusal by the Registrar. Again, in sections 43, 44, and 45, provision is made, where there is opposition, for a direct appeal to the Law Officer, and from the Law Officer to the Court. I am informed that in the case of all other decisions and determinations by the Registrar, the only relief provided is by the expensive method of an appeal to the High Court. There is a case of The King v. The Registrar of Trade Marks reported at page 604 of the 5th Commonwealth Law Reports. In that case an application was made to the High Court for a rule nisi for a mandamus calling upon the Registrar to proceed with a certain matter. That case was not strictly one of a refusal on the part of the Registrar, or a case in which there was opposition. The question was whether an application had been abandoned. The Registrar gave a decision that, in his opinion, it had been abandoned, and, instead of the short and simple method of a direct appeal to the Law Officer being followed, it was found necessary to take costly proceedings to secure a rule nisi from the High Court. I refer the Attorney-General to the report of that case, which it is suggested might be covered by this wider provision. There is another case to which I may refer the honorable gentleman. It came before Mr. Justice Cussen, of the Supreme Court of Victoria, in 1909. That case is not reported. An application was made turning upon the fact that the Commissioner of Patents had given a decision that he had no jurisdiction to entertain a certain application for an’ amendment of specification. The only way in which that decision could be appealed against was by going to the Court for a mandatory order of some kind compelling the Commissioner, if he was wrong, to proceed. The matter was taken before Mr. Justice Cussen. He ruled that he had no power to issue a mandatory order aganst a Federal servant, but said -
I am prepared to state my views, which a Te that the Commissioner ought to have considered the case on its merits. The patentee might, if he chose, apply for a mandamus from the High Court, but, possibly, if the matter were mentioned again to the Commissioner, he might alter his mind, and determine on the subject-matter of the application.
These two cases, I think, show that it would be well to adopt the simple mode of procedure of allowing an appeal from the Registrar to the Law Officer from any decision at least affecting the rights and property of any individual. I should like the Attorney-General to consider the advisability of inserting a clause to this effect -
An appeal to the Law Officer shall lie from any decision or determination of the Registrar under the Act, and from the Law Officer to the Court.
That is my suggestion in its widest form. It might, if considered advisable, be modified to the extent of providing for the direct appeal to the Law Officer in the case of any decision or determination affecting the rights of any person. The whole object of the proposed clause is to simplify procedure, to reduce costs, and to enable a speedy determination to be given in connexion with all matters before the Trade Marks Office.
– This matter was, in the main, discussed at some length last week. I should be very glad to agree to the honorable member’s suggestion, but
I think that it would be fatal to the principle of the Bill, and that it is opposed altogether to the object of the Act. We desire to make as economical and simple as possible the process of obtaining trade marks. There ought, therefore, to be expedition, and expedition is best secured by making, wherever it is possible, the depository of the decision ‘the person who is seized of the facts, and who is charged with the administration of the Act._ The functions of the Registrar are, in the main, concerned with registration, and any applicant will be, for the most part, affected by his decision in that respect. There is an appeal from the Registrar’s decision in the exercise of all those duties that are concerned with his main functions. Sections 34, 35, 43, 44 and 45 of the Act are all concerned with the exercise of his main functions, and in these cases the applicant has the right of appeal. The honorable member for Darling Downs desires that there should be a general appeal from the Registrar’s decision, whether his decision be administrative or not.
– The Registrar has a hundred-and-one things to do. His functions are not always judicial or quasijudicial; many of them are purely administrative. The honorable member’s amendment would be practically to make the Law Officer a judge of the Registrar’s act, and then to give the High Court an overseeing jurisdiction over the business of the Trade Marks Office. I submit that what we want to do is to enable any man who has a trade mark that he wishes to register to be able to register it as quickly as possible, and with the least liability to litigation. The honorable member’s amendment, so far as I know, would not destroy or lessen the possibilities of a mandamus. A mandamus would still lie against the Law Officer. Why should it not be the case ? We cannot destroy the jurisdiction of the superior Court. When a Judge or an officer of an inferior Court does, or refuses to do, something, what is to prevent the person concerned making application to the Supreme Court or the High Court for a mandamus or an injunction, as the case may be? The chief argument which the honorable member put forward was that litigants were compelled to obtain a mandamus, and since his suggested amendment would not prevent that state of affairs, but would only throw upon the Law Officer func tions that are now properly exercisable, and are actually exercised by the Registrar, I submit that it ought not to pass. I wish to point out to the honorable member for Fawkner, who first brought forward this matter, that, so far as the letter from the Melbourne Chamber of Commerce is concerned, I do not think th’eir attention had been directed to the fact that the Registrar’s decision is now appealable from in regard to all those matters where he may be said to exercise quasi-judicial functions. Since that is the case, and since clearly no one desires that there should be an appeal from his decision in administrative matters, I think the Bill goes as far as it ought to go. It follows the English law and practice, the only difference being that in England the appeal is from the Registrar to the Board of Trade, whilst here it is from the Registrar to the Law Officer.
.- There are undoubtedly some difficulties in the way of giving a general right of appeal, because where mere matters of procedure and not questions of . substantial right are involved the principle of the Trade Marks Act is to make the decision of the Registrar on the facts, and, of course, the merits, final. I have not been able to go through all the sections, but in a few cases there is a right of appeal either to the Court direct with, I think, the consent of the Law Officer, or to the Law Officer. What the honorable member for Darling Downs suggests is not that we should give an appeal in all cases, to avoid a mandamus, but that we should give, where a matter affected some person’s rights-
– What decision would not affect a person’s rights?
– I prefaced my remarks with the statement that no doub’t there were difficulties, and personally I do not think we ought to press an amendment at this stage; but why should we not avoid the necessity of obtaining a mandamus in corn.partively small cases?
– Will this do that?
– I have not seen the suggested amendment.
– I do not think it will. I think that it will lead to uncertainty and confusion:
– The amendment actually before the Chair applies to section 59, which relates to an appeal in a case where there is a subdivision or an assignment of a trade mark on the sale of the goodwill of a business. As the further question has been raised, however, I would suggest for the consideration of the AttorneyGeneral - I do not think that we ought to go further than that unless some one is prepared to submit a very carefully thought out amendment - that in cases where a mandamus lies an amendment might be drawn up giving the right of appeal so as to avoid the expense of a mandamus. There are, for instance, cases where the decision of the Registrar is one in which perhaps he has declined to exercise jurisdiction, but has nevertheless given some decision upon the facts, or where he may have exercised a jurisdiction that he does not possess, and at the same time has given a decision.
– May not a question of right arise out of a decision?
– No doubt ^ but in some cases the Registrar might give a decision without authority.
– Very well, then the person concerned must go to Court to have the matter determined-
– He must go to the High Court, and not to a State Court. Thaiis the point made by the honorable member for Darling Downs.
– This would be prolific of litigation.
– The law at present is prolific of expensive litigation. In all cases where the Registrar has mistaken his jurisdiction - there being no appeal allowed on the facts - the applicant, if he wishes to challenge his jurisdiction, must have resort to the High Court. I would suggest to the honorable member that it is unadvisable to press the amendment, on the ground that it may be of a more comprehensive character than he desires it to be.
.- I would point out to the Attorney-General that section 28 of. the Victorian Patents Act 1890 reads -
In raising this question, I have no desire to interfere with the administrative details of the Registrar’s office. I recognise that there are a number of technical matters connected with procedure which should not be reviewed. But in the case which has been mentioned a distinct right was affected. I submit that in cases where something substantial is involved provision ought to be made for some form of appeal which would obviate an appeal to the High Court. It seems ridiculous that in order to preserve a right which is not covered by clauses 34 and 43 a man should be obliged to obtain a rule nisi from the High Court calling upon another person to appear, and that the parties interested should have to chance whether a Justice of that tribunal will be available to hear the application. In substantial applications some simple course of procedure ought to be adopted. I do not press for an amendment at this stage, but I hope the Attorney-General will consider the point which has been raised.
– I think the Attorney-General might well look further into this matter. The AttorneyGeneral desires that the procedure followed should be as simple and inexpensive as possible. There have been three cases in which litigants have been obliged to proceed in a very round-about fashion by appealing to the High Court to compel the Registrar to do something. I quite admit that a general right of appeal might open the door to many cases which would render the working of the Bill cumbersome. But merely, to provide for an appeal to the High Court for a mandamus is a most expensive and difficult method of procedure. I think that the Attorney-General might well adopt the suggestion of the honorable member for Darling Downs, and endeavour to adopt a simpler method of dealing with the class of cases which has been cited.
.- The difficulty here is a practical one, and I submit that the clause ought to be sufficient. It is all very well for the honorable member for Darling Downs to say there should be an appeal from the Registrar whenever a question of right arises. I say that a question of right may arise out of any decision by the Registrar, and as there are no means of deciding what is a question of right, except by appeal to the High Court, we thus get back to the very tribunal from which the honorable member wishes to escape. As this provision has been found by experience to work well, I submit that we ought to adopt it. When we recollect that during a period of six years only two cases have occurred in which an injustice has been done to a litigant, we must admit that it has stood the test of time very well. Under almost any Act hardship must be inflicted upon some individuals. In this clause we are following the Imperial Act, and I ask the honorable member for Darling Downs not to press his amendment.
Clause agreed to.
– I move -
That the following new clause be inserted : - “30. Section one hundred and twelve of the principal Act is repealed, and the following lection inserted in its stead : - 112. (1) Any person who represents a trade mark as registered which is not so shall be liable for every offence, on summary conviction, to a fine not exceeding Five pounds.’
A person shall be deemed, for the purposes of this section, to represent that a trade mark is registered if he uses in connexion with the trade mark the word “ registered,” or any words expressing or implying that registration has been obtained for the trade mark.’ “
This provision is intended to take the place of section 112 of the principal Act, which relates to procedure, and which says -
Penalty : Five pounds.
We are practically adoptingthe suggestion of the honorable member for Darling Downs.
– The Attorney-General will remember that on the question of costs I asked him whether he could frame a provision _ under which there would be a scale of fees prescribed in matters which come before the Registrar. Section 96 of the principal Act says -
The Registrar and Law Officer, respectively, may for the purposes of this Act -
require the production of documents; and
) award costs against any party to any proceeding before him.
At the present time there is no scale of costs fixed such as obtains in connexion with the Supreme Court. The Registrar has power to award a lump sum - to fix fourteen guineas in one case, ten guineas in another case, and perhaps five guineas in a third case, according to his discretion.. The Attorney-General knows that intend-; ing litigants like to have some idea of whattheir costs are likely to be before taking, action. I do not want to take away thediscretion of the Registrar. He must havea discretion to give or refuse costs. In the Supreme Court a Judge has that right. There is a similar discretion in District and1 Small Debts Courts. But, in addition tothe general discretion, there is a scale of fees fixed. If the Attorney-General can seehis way, after consultation with the Registrar, to fix a scale in the same manner, it will meet the purpose. I do not want toincrease the cost of litigation ; but I dothink that the litigants should have some idea beforehand of what the costs are likely to be, by being provided with a scale of costs.
– The question raised by the honorable member for Darling Downs has been considered, as promised. The position is this : The. Supreme Court scale of fees is quite inapplicable in this case. The Registrar considers the lower scale of Supreme Court costs, but at the same time it is, in very many cases, inapplicable. The costs in? cases under this measure are lower, and ought to be lower. Of course, I can appreciate the suggestion which the honorablemember makes that there should be somescale, rather as a guide than as a precaution. The practice in England - as has been the practice here - is to proceed irrespective of any scale which operates in> Courts of law. If honorable members canbring before me any case where costs have been awarded on a notoriously lavish scale,, a direction could be given to the Registrar, or a suggestion could be made to him, that these costs were too high.
– That would be interfering with his discretion in a judicial matter. That would not be right. But perhapsthe Registrar himself might be able to suggest a certain scale.
– The honorable member thinks that the Registrar’s duties are judicial rather than administrative?
– After the Registrar has once decided, I do not think he should be asked to turn round and revise the costs he has awarded.
– I quite agree with the honorable member. If necessary, either a regulation could be framed, or an understanding arrived at. I shall be glad to act upon that suggestion if I can.
Proposed new clause agreed to.
Amendment (by Mr. Hughes) agreed to -
That the following new clause be inserted : - “31. Section one hundred and thirteen of the principal Act is amended -
by inserting therein after the words Royal Arms ‘ the words ‘ or the Arms of the Commonwealth’; and
by omitting therefrom the words ‘ so nearly resembling them ‘ and inserting in their stead the words ‘ so nearly resembling the Royal Arms or the Arms of the Commonwealth.’ “
.- I move -
That the following new clause be inserted : - 19A. Section 53 of the principal Act is re- tpealed and the following section inserted in its stead : - “ 53. The rights acquired by registration of a trade mark shall be deemed to be infringed by the use in respect of the goods in respect of which it is registered-
of a mark substantially identical with the trade mark;or
of a mark so nearly resembling the trade mark as to be likely to deceive ; or (c) of a mark which has been copied or imitated from the trade mark or from some portion thereof ; or
of a mark which in any particular resembles the trade mark and has been so designed with a view to deceive.
In an action for the infringement of a registered trade mark the Court, in determining the question of infringement of the same, shall have regard only to the trade mark itself, and to the mark which is alleged to be an infringement thereof, and not to any mark, design, or other matter extraneous to the trade mark, or to the alleged infringement thereof, nor to the size, or shape, or get-up of the package or goods to which the trade mark or the alleged infringement thereof is annexed or affixed, or upon which the same is printed, marked, or embossed. In considering whether any mark is an infringement of a trade mark, the Court shall have regard, in particular, to the colour or colours in which the mark and the trade mark respectively are used.”
Section 53 of the original Act as it stands, and as it has been judicially interpreted, has immensely weakened the position of the holder of a registered trade mark. The section provides that a registered mark - shall be deemed to be infringed by the use, in respect of the goods in which it is registered, of a mark substantially identical with the trade mark, or so nearly resembling it as to be likely to deceive.
Consequently, registration is infringed (1) if the mark is substantially identical with a trade mark ; or (2) so nearly resembles it as to be likely to deceive. It is well re cognised that a trader who stoops to imitate the mark of his rival is generally careful not to use a mark which is substantially identical with another, but uses one nearly resembling it.
– So nearly as to be likely to deceive.
– Under the Act it has to be both nearly resembling and likely to deceive. A dishonest trader is afforded immunity under the Act unless the proprietor of a registered trade mark can satisfy the Court that the mark complained of not only nearly resembles his mark, but is also likely to deceive. This is impossible under the decision in the case of Bourne v. Swan and Edgar Limited. Further, the Courts have held, in considering the question as to whether a mark so nearly resembles another as to be calculated to deceive, that they are entitled, not only to look at the mark itself, but also at the accompanying circumstances and general get-up of the goods.
I should like to call attention to section 25 of the original Act, under which the Registrar cannot consider the surrounding circumstances and general get-up of the goods. The only things that are before him for consideration are the registered trade mark, on the one hand, and another mark which a trader is seeking to register, on the other. He has, therefore, to determine only two points - first, whether the one mark is identical with the other, and, secondly, whether it so nearly resembles as to be likely to deceive. The Court should, in determining the question of infringement, regard the matter in identically the same way as the Registrar has to regard it under section 25.
It may be further pointed out that it has been held by the Court that though a trader may use a mark intended to copy a registered mark, and intended thereby to deceive, yet the Court itself may come to the conclusion that, though he so intended, yet he has failed in his attempt, and that the mark used by him is not calculated to deceive.I submit for the consideration of the AttorneyGeneral that if a trader endeavours to copy the mark of his rival, and that fact be proven, it ought to be sufficient evidence that the mark was likely to deceive. Because, in all these matters I think the trader, who is an expert in his business, is better qualified to judge of a mark that is likely to deceive, than is even a Judge on the bench. The Judge is not acquainted with the business itself like the trader, because the latter has had probably an experience extending over many years, and is able to get so closely to the trade mark of has rival as to capture that person’s trade under false pretences. He is able to test the matter over a period of years, and he can gradually alter his mark until it gets so nearly to the mark of his rival that he escapes a judicial decision, and yet captures the trade of his rival. I submit that when it is found that a trader has copied a trade mark, and that his intent was to deceive, it ought to be held by the Court that that trader is guilty of deception. That is, that his own intent ought to be sufficient to secure a judgment against him.
Furthermore, it will be seen that my amendment refers to the colour and getup of goods. The idea or design of a mark, is frequently copied, and the trader copying such mark, not content with the copying, uses precisely the same colour as that used by the holder of the registered trade mark. The Court should, in ascertaining whether any mark is an infringment of a trade mark have regard in particular to the colour or colours in which the mark and trade mark respectively are used. It has been held judicially that this matter need not be noticed in considering whether a mark is an infringment of a registered trade mark.
Recent decisions in both England and Australia have gone a long way to encourage dishonest traders in closely imitating the trade marks of their rivals, and in sailing so closely to the wind as to enable them to avoid a decision being given against them by the Court. It is certainly undesirable to encourage a dishonest trader to closely imitate or copy his rival’s mark, and obviously it is done first with the view of preventing his . rival’s mark becoming more and more distinctive of his rival’s goods as time goes on, and secondly with the view of getting up his own goods in such a way as to more nearly resemble the get-up of the rival’s goods.
In Burford v. Mowling, it was decided by the High Court as follows -
The fact that A, a trader, had for many years put up his goods for >sale in packages of a particular shape, size, and colour, such packages not being used by others in the trade, does not prevent B, even with the object of capturing the trade of A, from putting up his goods of the same kind in packages of the same shape, size, and colour, provided that B sufficiently distinguishes on the packages of his goods from those of A.
– Are you finding fault with that judgment?
– On what ground?
– If it can be shown that a trader has set out with a view of copying the trade mark of a rival, and securing the trade of his rival, then the point of my amendment is that that ought to be sufficient evidence against the former to secure a conviction.
I hope that the Attorney-General will be able to see his way clear to accept my amendment, which will do no damage to the honest trader, but will, on the contrary, go a long way to protect the honest trader against a trader who seeks by unfair means to capture the trade of his rival, probably built up after many years of effort.
– This amendment is proposed with the laudable purpose of preventing fraud, or what closely approximates to it, and preventing a trader’s rights in his trade mark from being filched ; but the honorable member proposes to do it in a way with which I cannot agree. It is a well-known principle of law, and I think that no principle is sounder, that the less definitions are resorted to in a Bill the safer it will be afterwards. It is proposed in this amendment to practically direct the Court in such a way as to almost rob it of its powers of judicial discretion.
– But it is already robbed of those powers by previous decisions.
– The honorable gentleman has expressed the opinion that a trader is a very much better judge of whether a trade mark is an infringement than is a Judge on the Bench.
– No; I say that the man who seeks to copy his rival is a better judge than is a man on the Bench.
– I do not say that he is not. All that I say is that while he may be, so far as practical experience and technical knowledge go, a much better man, he ought to be precluded - and he is in ninetynine cases out of 100 - from putting for.ward a biased opinion. The remedy of a litigant before the Court is not at all dependent upon such matters as the honorable gentleman seeks to introduce into the Act. It is for an applicant to state his case, and for the party who is accused to state his case, and on these facts the Court has to decide. The person to whom an injury is done is the person who has his right under the law, and he may bring an action against the other party for passing off as his trade mark what is really the trade mark of another person. I submit that since section 53 of the Act is quite clear in regard to infringements, anything further would inevitably, so far from helping any persons, complicate the matter all round. Such a direction to the Judiciary would hamper rather than assist it. I submit that the law as it is is infinitely more calculated to protect the honest trader than it would be if this amendment were made.
Section 53 of the principal Act says -
The rights acquired by registration of a trade mark shall be deemed to be infringed by the use, in respect of the goods in respect of which it is registered, of a mark substantially identical with the trade mark, or so nearly resembling it as to be likely to deceive.
If the colour of a mark were thought likely to deceive, that would be a subject for inquiry. The Court deals with each case on its merits, and I decline to believe that what is the law of a country where trade marks are used, perhaps, more than in any other, and has stood the test of time, is Inapplicable here. The advantage of following the English legislation is obvious. We thereby obtain uniformity of law throughout the Empire, and extend the protection of our trade marks to other countries. The words “of a mark substantially identical with the trade mark “ are perfectly clear in meaning, and to attempt a narrower definition would lead us into quicksands. It is further provided that -
In an action for the infringement of a trade mark, the Court, in trying the question of infringement, shall admit evidence of the usages of the trade in respect to the get-up qf those goods, and of any trade marks or get-up legitimately used in respect of them by other persons.
That is to say, the Court may examine the whole question, from alpha to omega, and give its judgment on the evidence. The Haw as it stands gives ample protection, and the amendment, instead of improving matters, would make them worse.
– I agree with the Attorney-General that it would be dangerous to embody the proposed new clause in our law. For a long time past we have been striving to secure uniformity of legislation in this matter “throughout the Empire, and have adopted a Trade Marks Act which has stood the test of many years, and has been moulded and enlarged until there is now a fairly comprehensive code dealing with trade marks. The honorable member for Cook asks us to depart from the principles of that code, and to set aside the judicial decisions which interpret it, by accepting a new clause, the effect of which cannot be known at the present time. His proposal is to take from the Court the discretion which it now enjoys, and to lay down a number of rules to be followed. Were the honorable member to consult an ordinary text-book on this subject, he would see that the principles of trade marks law are there pretty clearly defined, and have been generally acted on. Sebastian, in his Law of Trade Marks, page 142, says -
The real question which the Court has to try in a case of alleged infringement of trade mark, is whether what the defendant has done is calculated to deceive, whether there is so much imitation that goods bearing the one mark may be readily mistaken for goods bearing the other, and whether a more careful inspection than an ordinary purchaser would be likely to give is necessary to distinguish the mark and appearance of the former goods from those of the latter.
Dealing with the tests of infringement, he says, on page r45 -
It is obvious that, in these cases, questions of considerable nicety may arise; and in the language of Lord Cranworth, C, in Seixo v. Provezende, ” it is hardly necessary to say that, in order to entitle a party to relief, it is bv no means necessary that there should be absolute identity. What degree of resemblance is necessary is, from the nature of things, a matter incapable of definition a priori.”
The honorable member is trying to give that definition.
All that Courts of Justice can do is to say that no trader can adopt a trade mark so resembling that of a rival as that ordinary purchasers, purchasing with ordinary caution, are likely to be misled.
– It is a question of evidence.
– Yes. Sebastian continues -
It would be a mistake, however, to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use. If a purchaser looking at the article offered to him would naturally be led, from the mark impressed on it, to suppose it to be the production of the rival manufacturer, and would” purchase it in that belief, the Court considers the use of such a mark to be fraudulent. But I go further. I do not consider the actual physical resemblance of the two marks to be the sole question for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market, may be as much a violation of the rights of that rival as the actual copy of his device.
Then, at page 148, he says -
No man is entitled to represent his goods as being the goods of another man, and no man is permitted to use any mark, sign or symbol, device or other means, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false, representation to somebody else who is the ultimate customer.
In view of the general trend of the decisions, and of the rights built on them, it would be very dangerous to adopt the proposal of the honorable member.
Proposed new clause negatived.
Title agreed to.
Bill reported with amendments; report, by leave, adopted.
Bill, by leave, read a third time.
– - I move -
That this Bill be now read a second time.
The principal Act was passed to enable process warrants of certain State Courts to run throughout the Commonwealth, and to enforce the judgments of such Courts in States other than those in which they were delivered. In 1905 it was amended, so that- any Justice of the Peace, having jurisdiction in the State or part in which the person against whom the warrant was issued, is, or is supposed to be, may, before the indorsement of the warrant, issue a provisional warrant for the apprehension of that person.
Prior to that period there was no means whereby a provisional warrant of this kind could issue. This particular provision has been most useful, and it is proposed to repeal it in the Bill, substituting a more effective clause of the same nature. lt is further proposed to authorize InterState service, not only of writs of summons out of Courts of record, but also writs of summons issued by justices requiring persons to attend at Courts of record. In some cases, notably the desertion of wives and children, proceedings have failed because it has been held that summonses were not issued out of Courts of record; and it is proposed to make this measure apply to writs of summons requiring persons to appear at Courts of record. The Bill contemplates several minor amendments in the interests of deserted wives and children. At the present time a summons can be issued beyond the State in the case of an indictable offence or of an offence punishable on sum>mary jurisdiction ; but in some States the desertion of wife or children does not fall within that category. It is, therefore, intended toamend the law to deal with this anomaly. Under the law as it stands, a subpoena toattend and give evidence can be served in another State, but it is doubtful whether that is so in regard to a subpoena to produce books and documents. It is, therefore,, proposed to amend the law so that a subpoena may be issued in regard to the production of books and documents. As to> warrants, it is proposed to extend the Act. In addition to those who have deserted! their wives or children, it is intended toinclude persons who have disobeyed or failed to comply with the orders of theCourt, or who have refused to pay fines. Sofar as concerns judgments and the Inter- State enforcement of them, it is proposed’ to make it clear that the enforcement includes bankruptcy proceedings. This seems, to be a very proper and necessary provision. If an order in bankruptcy is to be evaded, as it may be if outside the Service and* Execution of Processes Act, there is considerable injury done, and the full effect, of the various State Bankruptcy Acts is set: aside. As to interest chargeable on judgments, the Bill provides that interest charged under a judgment in one State and registered in another is to be as from the date of the judgment, and not merely from the date of the registration. In procedure- it is proposed to reduce the minimum timefor the entry of appearance by defendant,, but only in the case of writs issued in the capitals of the various States, and in Fremantle, Launceston, and the Federal Capital. The reduction in the one case is to be from thirty to twenty days, and, in the other, from thirty-five to thirty days; but in the case of Western Australia generally and the Northern Territory there is no reduction. The measure is one which experience has shown to be necessary. It is, of course, of a severely technical nature, but its usefulness has been demonstrated, and I hope that it will receive the approval of the House.
.- Therewere some notes in reference to this Bill on the file of the Attorney-General two or three years back. The suggestion* had been made by bodies interested in maintenance orders, such as the State Children’s Council of South Australia, that we should facilitate, at all events the service, and, as far as possible, the execution of their orders. Those orders were really on complaint, though I think that, in the Act as 5t stands, the word “ information “ is used; and the Attorney-General has very properly got over that difficulty by substituting the word “ complaint.” All these maintenance orders, and others of the same class are, as I say, really under complaint, and, therefore, this Bill affords the necessary remedy. A difficulty also arises in regard to the issue and service of certain other writs. The original Act of 190T speaks of a “ writ of summons issued out of any Court of record,” and there are a great many minor Courts which are not Courts of record. Under the circumstances, writs issued out of those minor Courts could not fall within the procedure of Part II. of the Act, or, at all events, of section 4, which, in effect, permitted the service of the writs out of the jurisdiction ; and in the case of there being no appearance judgment was prevented being entered. This might, to some extent, have been got over by the States themselves. “The question of whether a Court is a Court of record depends on the States, because they could have widened the jurisdiction by declaring that some of the Courts were for the future to be considered Courts of record.
– We have not heard of any failure of the Statute owing to exceptions of that sort.
– The fact that it had to be a Court of record created an undesirable limitation ; and, if I mistake not, in some of the States, or, at all events, in Victoria, there was introduced or passed legislation to enable ihe Act to be applied by extending the definition to a greater number of Courts. I notice that the Bill deals with maintenance orders and the incidental warrants. These latter did not include maternity warrants, but that is proposed to be remedied now. What is not done by the Bill is to enable maintenance orders to be enforced in other States. I had a glance through the Bill when it was placed on the file, but I confess that it is a very technical measure, which has to be dealt with in detail. I -do not know whether it is an omission, but there is no provision made for the enforcement of maintenance orders in another -State, though there may be an arrest. I may inform the Committee that there is a great deal of what might be called “uniform legislation brought about in -America by the States themselves. Thirty- six or thirty-seven of the States have passed Acts enabling ‘the remedies and judgments of one State to be applied in another. They even enable uniform industrial legislation to be brought about - and that seems going a long way - by reciprocal arrangements, extending beyond the limits of a particular State. As the period of gestation of possible proposals to amend the Constitution has not yet expired, perhaps the Attorney-General, with his paternal interest in such amendments - which, by the way, is not quite consistent with the amendment of the law he is now proposing - would look up what is done in America on this point. I refer the honorable member to the Annals of the American Academy of Social and Political Science, and the volumes published about eighteen months ago. I remember reading in one of them an article showing the extent to which uniform legislation has been brought about in the United States by reciprocal arrangements between the States. It struck me at the time that these volumes would be a useful addition to the lore of the Government, who are so desirous of extending beyond the limits of particular States certain legislation which they think should.be uniform in all. I think that, on the whole, the Bill is a good one, although it does not go so far as enforcing maintenance orders. I cannot see how we could do that by Commonwealth legislation. It would be necessary, for instance, to have arrangements’ for the collection of moneys, and the matters would involve too much detail for Commonwealth administration. I mention that this may be done by reciprocal legislation by the States themselves, because I mentioned that fact to the representatives of one or two bodies that are chiefly interested in enforcing these maintenance orders when they are made.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 4 agreed to.
Clause s (Time limited for appearance).
– Is the Attorney-General satisfied that the time given for the appearance - twenty days - under this clause is sufficient? Has he had representations made to him that, it is necessary to curtail the period provided by the existing law by ten days?.
Clause agreed to.
Clause 6 -
Section 15 of the Principal Act is amended by omitting sub-section (r) and inserting in its stead the. following sub-section : -
When a summons has been issued, on information upon oath, by any Court or Judge or police, stipendiary or special magistrate having jurisdiction in any State, or part of a State, or part of the Commonwealth, commanding any person - a . (b) against whom complaint is made, in that State, or part, of his having deserted his wife or child, or left his wife or child without means of support, to appear and answer the charge or complaint, to be dealt with according to law, the summons may be served on that person in any other State or part of the Commonwealth.
.- This clause amends section 15 of the principal Act, which deals with maintenance orders, and very properly therefore paragraph b refers to orders on complaints. I hope that the draftsman of the measure has been careful to compare the wording Of the various State Acts dealing with the matter with the terms in which it is proposed that section 15 of our principal Act shall be expressed.
– Does this cover the^ case of” a prematernity order?
– I think it does. It will do so in South Australia, because there the remedy applicable on the birth of a child has been extended to cover prematernity cases. A complaint can be made,” and an order made on that complaint, providing quite as efficaciously, perhaps, for the situation as the Maternity Allowance Act which we passed here about a fortnight ago. The provision made under the South Australian law is £5, which is exactly the figure which the Government propose to give voluntarily in such cases under the Maternity Allowance Act.
– We have a similar provision in Victoria.
– And also in Queensland.
– Whatever the merits of the proposal may be, it seems clear that the origin of the maternity allowance is to be traced to South Australian legislation. But there they differentiate as between the deserving and the undeserving, and between those who need assistance and those who do not, and the parent pays. The Commonwealth Government are, however, so benevolent that they propose to give assistance to every one.
– Because we consider that all are deserving.
– I confess that I have noi had an opportunity to examine all the State Acts, and that is why I say that the Attorney-General should be sure that the wording of this clause is in line with the texts of the various State Acts, to which it will be ancillary. I think that it is in line with the South Australian Act, but many of the State Acts have been amended during the last twenty years, and it would be a pity if the words in which’ we express these remedies do not fit in with those of the Acts creating the substance of the offences. This is purely a matter pf comparison with the State Acts.
Clause agreed to.
Clauses 7 and 8 agreed to.
Clause 9 (Registration of judgments and proceedings thereunder).
– The honorable member , for Angas asked the Attorney-General whether the procedure provided for in this clause is adequate to enforce the payment of maternity orders when made by a Court. A Court makes an order for the payment of a certain sum periodically, and it is important to know whether the Bill makes provision for the enforcement of such orders in any State by the collection of the moneys to be paid periodically.
.- To remove any misapprehension, I may say that I think the Bill provides for the enforcement of an order, but not for the making of an order.
– It must relate to the enforcement.
– If a man leaves, say, Victoria for Queensland, and an information or complaint is laid in Victoria in reference to that desertion, he has, under this law, and under the State Act, to be brought back to Victoria to be tried; and one of the requests made by the bodies that were enforcing the State Children’s Act,, and certain other Acts, was that power might be given to take the evidence in the State to which the person had gone.I think that it is difficult to do that, becauseit would be necessary, whatever was done, to shift witnesses from one State toanother.
– In the New South Wales case of Richards ex parte Maloney, it was contended that the issue of a bankruptcy notice was not an execution, or enforcement of a judgment, but the Judge- held against that construction. We desire- to make it perfectly clear that the Act covers such a case, and we are therefore making the necessary amendment by this Bill.
Clause agreed to.
Clauses 10 and n agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Bill, by leave, read a third time.
Debate resumed from 24th October (vide page 4663), on motion by Mr. Fisher -
That this Bill be now read a second time.
.- The honorable member for Parramatta, who is temporarily absent from the chamber, proposes to continue the debate, and as he will deal chiefly with the merits of the proposal, and the machinery for which the Bill provides, I shall confine myself principally to a statement of what seems to be the position as a matter of law. We have already passed a Seamen’s Compensation Act - a very good measure, which received the approval of both sides of the House, and which was based upon the Imperial Act of 1906, the latest Imperial legislation on workmen’s compensation. I have looked through this Bill, and it seems to me to follow on the lines generally of the Seamen’s Compensation Act, and, incidentally, one might say that it follows the Imperial legislation. Amendments, however, have to be made in order to meet certain cases. I think that the Prime Minister mentioned last week that there was no remedy under Workmen’s Compensation Acts for persons to whom this Bill applies, because the State Acts were considered by the Law Department not to apply.
– There is undoubtedly grave uncertainty.
– Under a provision of the Constitution, which, I am happy to say, I proposed, and which provides that the Commonwealth shall have power to enable a subject to sue the Crown in all cases within the limits of the judicial power, the Commonwealth is able to provide a remedy in the case of a tort. The States in many cases at present do not allow a man to sue the Crown. A person who feels himself aggrieved has to petition the Sovereign, and there are certain Acts providing what the procedure after that is to be.
It is to our credit that, wherever a subject would have a right against another subject in connexion with a tort - negligence, or anything of the sort - the Crown is not permitted to block the remedy by saying,- ‘ We are immune : Sovereignty is a bar, and no remedy can -lie against us.” The Constitution enables us to pass legislation in that matter, and the Judiciary Act enables a subject to sue a State or the Crown. The remedy extends not only to the Commonwealth, but to a State. A State can be sued in the High Court by another State, or by a resident. That power, of course, does not create causes of action, because the Constitution simply refers to cases “ within the limits of the judicial power.” It must be shown, then, in every case, that a cause of action exists. It may be that the common law remedy does not exist against the Commonwealth. It has been decided in America that, speaking generally, there is no common law in the United States. Liability for negligence depended on the common law. The old principle was that if an employer was directly guilty of negligence to a stranger, or to a person in his employ, either by reason of malfeasance or some omission, such as to provide proper machinery, or by the use of dangerous machinery, he would be responsible for any injury sustained, as long as that omission or act on his part was directly traceable to himself, and was not the act of a subordinate agent, or, to use a modern term, a sub-contractor. That was the law until a variant of it was made in 1837 in the case of Priestly v. Fowler. The theory was then discovered for the first time that if the injury complained of was caused by a fellow employ^, there was no remedy against the employer, because the workman was supposed, as an implied condition of his contract, to have accepted all the risk of common employment.
– That is under the doctrine of common employment.
– That was laid down by the Court in the case of Priestly v. Fowler, and was not generally accepted. Such writers as Ruegg on Compensation said that had the common law principle been logically followed by the Court, the Workmen’s Compensation Acts of subsequent years - the Employers Liability Act of 1880, and to some extent the Workmen’s Compensation Acts of 1897 and 1906. might not have been necessary. Probably the Employers Liability Act of 1880, which has been adopted by some of the States, would not have been necessary, for the reason that the general principle which held an employer responsible for negligence, also applied to negligence on the part of the person engaged by him. It is quite as logical to assume that when a man purchases a railway ticket he accepts all the risks of the journey, as it is to assume that because a person accepts employment he accepts all the risks connected with the industry in which he is engaged. That was the principle laid down in Priestly v. Fowler, and to such a length was it extended, that it was held that the chief engineer of a vessel was a common employe’ with an ordinary seaman. In other words, it was held that the employes in the various departments of some of our huge modern industries might, nevertheless, be common employes, and the -employer, or as they called him in England, the “ master,” was exempted from all lia”bility on the ground of his employees implied acceptance of all the risks of the industry.
– In other words, the employ£ had to accept all the risks.
-Yes. Thus slowly does the sense of responsibility develop. In 1 880 the Employers Liability Act was passed, which modified to some extent the old rule, but did not substantially alter the law. What it did was to hold that where, for example, the negligence of a superintendent caused an injury to a workman, he should be regarded for all purposes as the employer or master, and his negligence would be assumed to be that of the master. It also laid it down that the doctrine of common employment would not be a defence to an action founded upon the supply by an employer of defective plant. But we must always remember that that Act did not create new causes of action. What it did was to take out of the decision in Priestly v. Fowler five special matters. It enacted that if a workman was injured as the result of obeying by-laws which had been framed, and to which he had to conform, a right of action would exist, notwithstanding the doctrine of common employment. I need not say any more on this aspect of the case, except that the Employers Liability Act of 1880 effected very limited modifications of that doctrine. It qualified the five instances in which that doctrine was not to apply, by declaring that even though negligence of a certain kind existed on the part of an employer, the employ6 was still not to have a remedy. In other words, it laid down that if certain facts existed they would be regarded in the light of contributory negligence on the part of the employed It was held that injury could not occur to the individual who was willing to be injured. In other words, if a man knowing of a risk accepted that risk, or went into the region where it existed, he was presumed to have voluntarily accepted that risk. So that if a man continued to work a dangerous machine, knowing of the danger, he was held to have voluntarily accepted that risk.
– Would that doctrine go to the length of saying that if a man had read statistics relating to accidents in a mine, and afterwards went into that mine to work, he would have voluntarily accepted the risk of accident there?
-I do not know that it would go so far ‘as that. I do not suppose that two honorable members in this chamber who sat down to read Mr. Knibbs’ statistics, would draw the same conclusions from them as a matter of conviction.
– The honorable member does not underrate the practical utility of Mr. Knibbs’ statistics?
– No. I am speaking only of our liability to draw wrong inferences from them. The Act of 1880 laid it down that where a workman had noted a defect in machinery which he operated, and continued to operate that machinery, he had voluntarily accepted that special risk. That Act, therefore, did not accomplish very much, though it did extend the principle that there are some risks connected with an industry which ought to be borne by the industry.
– The principal good which resulted from it was that it educated the public to the inutility of such legislation.
– It did some good. In some instances it is fairly easy to prove negligence, and in such cases the workmen would have a remedy. In other cases the workmen, as the results of agreements drafted by that much maligned, when it should, rather be much extolled, body of men - I refer to solicitors - can obtain compensation without the necessity of appealing to a Court. They can also obtain relief under the Employers Liability Act of 1880, which has been adopted by several of the States. 1 refer to this matter now, because there may be no common law liability on the Common- wealth. But those Acts, and the common law of the States, do, I think, apply to the Commonwealth so far as they relate to negligence, affecting ‘citizens generally. They may not apply in respect to liability to Commonwealth servants or officers, because it may be held that their application would be an infringement of the internal administration of Federal Departments. I merely suggest that possibility, because we have not yet heard from the Government why this Bill should have been brought in.
– To make the law on the point certain.
– 1 think that is quite right; only I have not heard anything to show clearly - though it may be capable of being shown - that the Commonwealth, in respect of its servants, is outside the common law, and outside the purview of State Acts in this matter. Very likely it is ; and it is quite proper to put the matter beyond all doubt.
– The policy of this Bill is neither to affect the common law nor employers’ liability; it is compensation.
– It is a very good principle. The Prime Minister did say, as one reason for the Bill, that there was no statutory declaration on the subject. From that point of view it is very proper to remove all doubts. What the Bill does, I assume - having looked through the schedule - is to give compensation in all cases where an accident has occurred to a workman in the course of his employment, and to throw on the employer- which in this instance is the Commonwealth - the obligation, if he wants to protect himself, of insuring against such accidents.. That is a very proper principle, because modern writers upon sociology and industrial matters argue, quite rightly, that these are risks which ought to be part of the expense of conducting an industry. The public ought ultimately to bear them.
– The obligation is qualified by the words “ arising out of “ and “ in the course of “ the employment.
– Yes. The English Act of 1906, some of our State Acts, and the Commonwealth Seamen’s Compensation Act are to a large extent based upon the same lines as this measure. But the Imperial Act extends to almost all classes of employment and injury. It is only when a man is temporarily injured - say, for less than a week - that he is not supposed to be covered by the Act.
– There are some restrictions in the English Act.
– There are in England now very few restrictions. Such limitations cannot apply in this case, because we are dealing only with Commonwealth employes. There must, however, be some limitations. I see that one is that a workman entitled to compensation must have been employed at a salary not exceeding £500 a year. The measure covers any person employed at manual labour, clerical work, or otherwise.
– I am not sure that we are logical in that limitation.
– Perhaps not, but legislation is never perfectly logical. We are all more or less pragmatists. In legislating we have to a large extent to live from hand to mouth, and to confine ourselves to the limitations of a certain period. It is probable that legislation of this kind cannot be applicable to the whole service. I wish the Prime Minister were always notperfectly logical in these matters. He might have been less logical in regard to the maternity allowance, when he proposed to extend the benefits of the legislation to all cases, although probably only 5 per cent, will need it. Now, however, he properly comes back to political expediency, and presents us with a measure which applies only to a limited number of people.
– I should like to hear the honorable member on the principle of compensation. I think the idea of compensation, apart from the awarding of damages, is a new one.
– The principle runs through the English legislation as well as through our Seamen’s Compensation Act. Persons affected under the Bill are to be compensated apart from whether there has or has not been negligence. But there is a provision that where an accident has occurred owing to the serious or wilful misconduct of an employ6 there shall be a qualification as to the liability of the Commonwealth. I think that Imperial decisions go to the length of saying that that cannot arise in any case falling short of attempted suicide. The wilful default must be of such a character that the person has practically attempted suicide before he can be denied compensation.
– I think Lord Loreburn laid down that principle in a decision not long ago.
– I think I read of such a decision some fifteen years ago, when the South Australian Bill was introduced.
– There is a later decision than that.
– In all other cases the Commonwealth accepts liability. It is a very proper principle, and we must all welcome recognition by the Commonwealth of its obligations in connexion with its departments. The Prime Minister has based the measure upon the principle of workmen’s compensation, and by so doing, to a large extent, dispenses with the prospect of litigation. In England, litigation has arisen largely owing to the difficulty of defining what a “ factory “ means. There have been a great many decisions under the English Acts. Such difficulties cannot arise here, because the definition of “factory “ need not run throughout, or come into, this legislation. We shall, therefore, have an Act that I hope will bring us close to the minimum of litigation, if there is to be any ; which recognises our moral obligation to compensate men who have been the victims of the ordinary risks of departmental administration ; and which gives that compensation on the principle of allotting a fair amount for the injury suffered. In the case of death, the compensation goes up to . £500 to direct dependents, and in the case of those not directly dependent it is a smaller sum. Where incapacity occurs, those depending on the person incapacitated may receive a maximum arrived at by taking half the salary of the officer as the measure of the weekly payments to be made. In many cases the principle of arbitration will be employed to decide questions arising, such as who are dependents, and to what extent they have been affected by an accident that has occurred. In other cases, such as whether an accident has or has not occurred, and as to the amount of compensation, I assume that an agreement would be entered into in the majority of instances. I do not think I shall be justified in saying any more about the legal bearings of this measure. I believe that it will work fairly smoothly. All legal machinery is more or less liable to accident, but, compared with Imperial legislation, I should say that this Bill ought to work comparatively smoothly, owing to the fact that we are not dealing with factories. I had a doubt as to whether we could not dispense with the machinery altogether. I assume that we shall have to insure against accidents. Could not the Commonwealth establish an insurance fund to cover all cases under this measure?
– We do not propose to insure at all. The Government will have an accident fund of its own.
– How is that to be done? Is the Prime Minister advised that there will be such an average of accidents occurring that he can calculate them throughout the Commonwealth at any time?
– Or. will it necessitate a large Treasurer’s Contingency Fund?
– When we are dealing with life, although we are dealing with one of the most uncertain things, we can proceed according to probabilities. The average of deaths at a certain age within a year is fairly even. But when we are dealing with accidents, the certainty of the uncertain, if I may speak paradoxically, is much less marked.
– The whole history of the matter shows that it is possible to deal with accidents according to probabilities, which are fairly even, although there is a tendency to improvement.
– There is; but it depends upon the area over which the calculations are made, and whether accidents may, with a fair amount of assurance, be said to occur in certain departments.
– Very nearly.
– Considering that the Bill only deals with men whose salaries are £500 and less, it is a matter on which I do not wish to express a decided opinion. But I hope that, before the Bill leaves the Chamber, the right honorable gentleman will give us an idea of how he intends to cover these risks, and an estimate of what percentage of accidents may occur in connexion with the employes in each Department in the coming year, and what provision will be made in the Estimates to cover these contingent liabilities.
– There will be an annual appropriation.
– No doubt an annual appropriation will be made, but there must be something . to guide Parliament as to the amount to be appropriated. We have generally Estimates which indicate what the Supply ought to be, but when we are dealing with accidents, even to a fairly limited class, I hope that we can, with a fair assurance, reckon upon a percentage that will justify the appropriation of a certain amount each year. It may be that, in the long run, it might be better to make provision by insurance, but I do not mean insurance on a contributory plan.
– I am glad to hear that.
– We are dealing with the principle of the industry taking the risk, and so we cannot ask the men to contribute.
– I do not think that the Government need insure. We do not insure our buildings. We can do the thing more cheaply otherwise.
– That is a matter on which perhaps two opinions can be held. On the whole, I think that the Bill, subject to what one may have to say in Committee, is a good one, and its principle ought to receive the approval of honorable members.
– I was not in the Chamber when this Order of the Day was called, so quickly are measures being hurried through.
– The other Bills were disposed of.
– Surely the Copyright Bill has not been disposed of - at least I hope not - in the few minutes which elapsed between the disposal of the other measure and my coming back to the Chamber. However, I was glad to hear, as I always am, the speech of the honorable member for Angas. I have not very much to say about this Bill at this stage, which seems to be one for consideration in Committee. It is really contained in the schedules. In that respect it reminds me very much of a Local Government Bill which was introduced by Sir George Reid and came to nought. It was a skeleton Bill. One suggestion after another was made to put in a provision, and the reply always was, “ I will put it in the code.” This Bill, it seems to me, is in the schedules. The Prime Minister has emphasized the fact on half-a-dozen occasions that this is a Bill for compensation, and not an insurance proposition. If it is a Bill for compensation, it strikes me that its title ought to be altered a little, in order to make it read sensibly. Probably the draftsman has followed the phraseology in the titles of similar Bills elsewhere, and, therefore, it will be regarded as sacrilege, I suppose, to criticise it in any degree. But it does strike me as being a bit comical to compensate, for instance, a workman who has been killed. How we are going to do that I do not pretend to know. What is meant, of course, is that we are going to compensate those whom the deceased workman has unfortunately left behind him. It is a Bill relating to compensation to workmen. The title appears to be defective in some way or other, since what is meant is that, in consequence of a workman losing his life, and to whom, therefore, compensation cannot be paid, it is intended to compensate those who are left behind.
– You would like to extend the title to include compensation in respect of people who are killed and people who are injured?
– I think that a title of that sort would be better.
– It would be long-winded, but no better.
– I think it would be better. I- do not quite see how we can compensate a man for having killed him, either accidentally or otherwise. I think that the Bill is long overdue. If it will only do away with those anxious harrowing moments which occur at the end of almost every session, when persons who have been injured in the Public Service come to have their claims adjudicated upon by the House in a rough-and-ready manner, resulting oftentimes, I am afraid, in the most meagre justice being done to them, and sometimes in very little justice at all being done - if the Bill will only do away with this experience, through which every Government has had to go in each session of this Parliament, it will have accomplished a good purpose. I should like to add that this kind of legislation makes no appeal to party in any sense of the word, and it ought not to do.
– It used to do.
– I am not aware of it.
– In the British House of Commons, as well as in the State Houses.
– The honorable member is, I think, talking about a quite different matter, and so is the Prime Minister, too.
– Look up, the debates in the Queensland Parliament, and read of my efforts.
– I know that organized ‘compensation applied to outside people has provoked a great deal of discussion right through the centuries, but never so far as workmen employed by a Government are concerned. There has always been a tacit understanding that when a man has lost his life in the service of the State his dependents shall be compensated for the injury done.
– I do not think that there is a Workers’ Compensation Act in this State.
– I am not talking about Acts, but about facts ; and I know that, so far back as the memory of any one of us can go, on the railways and in Government employment of every kind, it has been the custom to compensate on the lines laid down in this Bill the dependents of men who have lost their lives and men who have received injuries whilst in Government employment. I know that twenty years ago I interviewed the late Mr. Eddy, in Sydney, and got ^400 for a widow whose husband had met his death in connexion with the railways of New South Wales.
– You had to use your influence to get the money.
– I made an application for compensation, just as anybody will have to do under this Bill. That is not altered in any degree. Therefore the Bill is merely crystallizing what has been an immemorial custom in connexion with Government employment. The only step farther that it goes is perhaps in the modification of the principle of contributory negligence - a factor which has always led to much discussion, and sometimes to substantial injustice being done to the sufferers by these injuries.
The Bill goes a step further. It does not obliterate the element of contributory negligence as the German legislation does. It is not as favorable to the workman as is the German legislation, which, without reservation of any kind, lays down the principle that an industry shall carry all its own risks. Under the German law, the workman is not asked to contribute towards a fund for providing compensation for accidents. He must contribute towards the making of provision against sickness, unemployment, and old age, but not towards making provision against accident. In respect of accidents, the obligation is wholly on the employer; and there is no reservation regarding misconduct, ignorance, or any action on the part of the workman which may .have contributed to the accident. Whatever contributory causes he may have been responsible for, the workman receives his compensation, which is paid by the employer, and the German legislation relates to both private and public employment.
I wish I could believe, with the honorable member for Angas, that there will be little litigation under the
Bill. There will be a great deal of litigation - that is, unless arbitration i’s not regarded as litigation. The arbitration will be almost continuous should our PublicService grow, and employment under Government increase as it has done. There are three parties to whom an injured man,, or those dependent on him, may look for compensation should accident occur : the Commonwealth - the ultimate employer inall cases - the contractor doing the work for the Commonwealth, and any outsider who may have caused the accident. The liability of these three parties will be a cause of arbitration from the very beginning, though, I suppose, in all cases, the Commonwealth will have to pay the compensation that is awarded. It is provided that the Commonwealth may recover from any contractor that it employs, that: is, may require him to indemnify it for compensation that it may have to pay. I am afraid that arbitration will be interminable unless matters are referred to the County Court Judges, as provided for. This may lead to direct appeals to the Courts in all cases as being the safest and easiest way of getting matters settled. It is appalling to think of the subjects for arbitration which will arise. There is first the liability, and the extent of that liability, of each of the parties I have referred to. Another subject for arbitration is the amount of compensation to be paid. Then it must be determined who are dependents.
The Bill deals with dependents of all kinds, and part dependents, but makes no reference to adopted children. It sometimes happens that a child is adopted and educated, and becomes the mainstay of the household in which he has been reared. Should his death occur, those who have adopted him are placed in the same circumstances as real parents on the death of a son. In my opinion, no distinction should be made between the case of an adopted child and that of a child. I do not know whether in this matter the Bill is following lines which have been laid down in other legislation, but, in my view, those who have adopted a child who has become their support should, in the event of his death, be in the same position as real parents.
I see endless vistas of arbitration. It will not matter to the arbitrator, because he is to be paid out of Consolidated Revenue. The Bill provides ‘for medical arbitration, too, in the case of disputes about the value of certificates. It is evidently thought that some men who have got on to the sick-pay list will not be eager to return to work. A man will be paid 30s. a week for his temporary ailment, and if he is a member of a lodge or two besides, it may happen that he will be paid as much, and in some cases a little more, for being sick as for being well. .Evidently the Government are contemplating some trouble arising in this connexion, because they provide for the production of a medical certificate, in addition to that provided by the man himself, and in cases where there is a dispute betwen those two doctors, the question is referred to a medical referee to arbitrate as to the relative value of the certificates. Then, again, there is a medical reference as to the extent of the incapacity.
– That is only conserving the public interest.
– I am now pointing out that where there is a difference of opinion by the doctors, a third doctor is called upon by the Government to decide. At every stage there are arbitration proceedings; and I fancy a great deal of trouble will be caused by the provision that there may be a review of the payments at any time on application of either the Government or the workman. In the military regulations, to which the honorable member for Bendigo will refer later on; injuries are divided, roughly, into four classifications - permanent disablement, three-fourths disablement, half disablement, and quarter disablement. In this rough way is crystallized the different degrees of injury that may be received in the performance of duties; and it occurs to me that this kind of thing must lead to almost endless arbitration, if not litigation.
Then there is provision for commuting *he weekly payments to a lump sum.
– Hear, hear !
– This will be such a sum as will provide an annuity equal to three-fourths of the weekly payments ; and, on the whole, I think that is a wise provision. It means that a man who is permanently disabled, may, if he so desires, be paid a lump sum with which he may set himself up in some business suited to his disabled condition. But the extent and value of the commutation is to be the subject of arbitration.
– That is in the ultimate, failing agreement. How would the honorable member settle the matter?
– I would settle it, 1 think, in a very much better way.
Then I see that a lawyer may appear in any of the arbitration proceedings ; the provision is that either the workman or the Government may be represented by anybody, including, therefore, lawyers ; but later on, in the same schedule, it is distinctly provided that a solicitor or agent shall not be. entitled to recover any costs, in respect to proceedings in arbitration under the Bill. I do not know how the lawyers will like this provison. Lawyers often do a great deal of work for nothing ; and I believe there is as much patriotism amongst them as in any other section of the community, if one may judge from their activity and self-sacrifice in their efforts to shape much of our legislation. So far, however, I have not heard one word of thanks from this Government, who have received more benefit in this way, and for nothing, than any Government that I have been acquainted with. There is no doubt about the patriotism of the lawyers ; and it seems to me, in the absence of any explanation, that, under this Bill, they are being pretty hardly dealt with. The lawyers may, therefore, make up their minds that, while they may appear under this Bill, they cannot get anything out of an award when it has been secured.
– That is, they have no legal remedy.
– I suppose, however, there is nothing to prevent a lawyer having a” private arrangement with the claimant; and I cannot see why this provision finds a place in the Bill. It may. be necessary to protect people, who desire arbitration, from the depredations of some legal gentlemen, but I should like some explanation of the clause.
– The labourer is not worthy of his hire if it happens to be legal labour, though, if it is laying bricks he is 1
– It is quite evident that the lawyer is not to be regarded as a good Labour man; while everybody else gets full unionist pay for every stroke of work, not so the lawyers under this Bill.
– If all the lawyers dropped dead, the world would be just as well off t
– The honorable member is not quite right there, I think. It would have been a simple matter, instead of introducing this Bill, for the Government to insure these men with some good insurance company.
– And let rules and regulations “do” them out of the money !
– I do not know to what the honorable member is referring.
– The honorable member does not know much of the world - he is only a baby 1
– I am afraid I do not. know half as much as does the honorable member, who certainly seems to have been more amongst the world’s roguery than I have.
– I have done more commercial business than has the honorable member !
– I shall readily concede that the honorable member has had more to do with the shady practices of individuals than I have had, and I am very glad I am such an innocent. It occurs to me that in actual practice the Government will find this Bill a very intricate and involved piece of machinery. I shall be very much surprised if there is not protracted arbitra-, tion or litigation under it. When it is necessary to find out by arbitration, or to come to some agreement as to who is entitled to these benefits, who are the dependents of an injured person, how far a man is incapacitated by accident, and whether there should be any alteration, and, if so, what alteration, in an award, and when we have an obstinate employ^ on one side, and an obstinate medical man representing the Government on the other, a vista of arbitration is opened up which, it seems to me, might very well be avoided by a well-considered scheme for the insurance of every man employed by the Government.
– We should not escape the difficulties referred to by the adoption of such a scheme.
– I think we would escape a great many of them. Comprehensive classifications have now been devised under insurance schemes, and it strikes me that it must be better to have them crystallized than to have the conditions of compensation subject to constant review or repeal as under this Bill. I do not see why definite classifications could not be laid down.
– The honorable gentleman forgets that under an insurance scheme the employes would have to contribute something.
– I am not suggesting that the employe should contribute anything to provide for compensation for injuries sustained in this way. The trend’ of such legislation throughout the world1 is to-day in the direction of eliminating all payments by workmen towards insurance against accident. In Germany, workmen pay nothing towards such insurance.
– Mr. Lloyd-George’s scheme involves contributions from workmen.
– Who pays nothing in Germany ?
– The workmen.
– I beg the honorable gentleman’s pardon.
– I am speaking of accident insurance, and the whole burden of such insurance is laid upon the employer in Germany. In connexion with other forms of insurance, workmen make contributions, but the employers take out the insurance in the case of accidents, and pay for it themselves. In other words, it is regarded as a charge upon the business. There are no stipulations made with respect, to contributory negligence, or anything of that kind. There is an unlimited and unqualified insurance to cover compensation* for accidents from whatever cause arising. It is laid down broadly as a charge upon the industry in which the injured man isengaged. That seems to me a simple method of avoiding many difficulties which I feel will arise under this Bill from time to time.
I hope that the measure will operate, without friction, and with the maximum benefit to those who may be so unfortunate as to be claimants for compensation under its provisions. If the Government intend to go on with the measure as it stands, I have no more to say, except to give it my blessing, for what it is worth. There is no doubt that the measure is verymuch overdue. It will relieve this Parliament, and honorable members generally, of much anxiety in connexion with accidents that occur from time to time. I believethat it is the correct course to separate this matter from our annual Estimates, except in so far as the appropriation of amounts awarded as compensation isconcerned, leaving it to some authority such as will be set up under this Bil], or to- another authority which I suggest in preference, to deal with these matters, and give injured workmen the measure of compensation which is due to those who suffer in the service of the Commonwealth. I say “ good luck “ to this Bill. I believe it will bring comfort to many an anxious heart. I know well, from long experience, the anxieties of those who, as the result of accidents, lose their bread-winners, or have them seriously injured. If the measure will only relieve to some extent the anxiety due to the occurrence of serious accidents to workmen, it will serve a good purpose, and as such I have only words of commendation for it.
– 1 hail with delight the introduction of this Bill. For a number of years I took an active part in the endeavour to have an Employers’ Liability Bill passed by the New South Wales Parliament. I had the pleasure, also, of coming here from Sydney at the invitation of a number of trade unionists and others connected with the Melbourne Trades Hall to urge upon the Victorian people the advisability of passing a similar measure. The honorable member for Parramatta has endeavoured to make this Bill an object of ridicule, but he has never shown the inclination at any time to assist any previous Government to introduce a Bill of the kind. I could never understand why the Government, as an employer of labour, should not be placed in exactly the same position as a private employer of labour. A private employer is liable for accidents to his workmen. I do not know what the other States have done in the matter, but in New South Wales we have a Workmen’s Compensation Act. In that State an employer of labour, for his own security, insures himself against the results of accidents to his workmen. As an employer of labour I have done so, but I am sorry to have learned that the insurance companies surround the matter with so many obstacles and technicalities that it is hard to know whether injured workmen will get anything or not. One of my workmen injured himself a fortnight ago, and I discovered that he can draw nothing for a fortnight after the date of the accident. I was under the impression that he would receive compensation from the date of the accident. I shall support the Bill with great pleasure, because I feel confident that the obstacles suggested in the way of its operation by the honorable member for Parramatta were purely imaginary. If it be found that the measure does not effectively carry out its purpose, it can be very readily amended. The honorable member for Parramatta took exception to the provision for a medical referee, and also to the provision for arbitration, but it is easy to understand that there might be a dispute between an applicant for compensation and the Department in which he was employed. I do not know any better way to settle such a dispute than by arbitration. It is possible that a claim may be made which is not a just one, and the Government, in the interests of the public, should, in such a case, obtain a medical certificate. Surely the honorable member for Parramatta will not oppose the Bill on such grounds. I could not understand his objections. I can quite believe that measures of this kind are novelties to honorable members opposite, but they are not novel to honorable members on this side, who have endeavoured for many years to get such measures passed, and to have the Government placed in the position in which they will be placed under this Bill. In the short period during which I have been a member of this House accidents have occurred to employes in the Public Works Branch of the Home Affairs Department, and in the Defence Department, and there has been no redress except at the will or pleasure of the Ministerial head of the Department concerned. In one case, a young fellow was injured for life as the result of an accident in connexion with our Naval Forces. He found that he had no legal redress ; but, with the assistance of a couple of members of the Cabinet, I was able to bring his case under the notice of the responsible Minister, who secured for him an appointment as watchman, or something of the sort, in the employment of the Government. Although this young fellow was injured for life, he had no legal redress. I am afraid that he will not be able to occupy the post very long, and that his wife will have to support him, as well as their family of three or four children. A measure of this kind ought to be hailed with delight. ‘ We shouldbe glad to know that, henceforth, any servant of the Commonwealth who is injured while on duty will be able to secure redress. I feared, at first, that honorable members opposite would speak of the Bill as “ another political trick,” but so far nosuch cry has been raised. This is a measure which should secure for the Government the support of every public servant, for no one in the service of the
Commonwealth knows when it may be necessary for him to avail himself of its provisions. The Commonwealth should be in a position to grant compensation to a person injured while in its employ, just as a private employer is liable under Workmen’s Compensation Acts to compensate any person who meets with an accident while working for him. It is not many years since the law was such that if, as the result of the collapse of a scaffold, a person walking along the street were injured or killed, the contractor would be liable to pay damages, although the workman engaged on the scaffold when it collapsed could secure no redress, notwithstanding that the contractor himself might have been guilty of great carelessness. That is a state of affairs that ought not to have been tolerated. Whilst the people had no voice in the framing of the laws of the country, they could not remedy it ; but now that they have, measures such as that now before us are more likely ito be placed on the statute-book. The advantage of a measure of this kind is not so much that it will enable compensation to >be obtained as that it will cause greater precautions to be taken for the public safety. If an employer knows that his pocket will be affected by any carelessness on his part, he will take care to see that this machinery and appliances generally are such as will reasonably insure safety; and we may be sure that this Bill will also make Government officers careful to take all reasonable precautions against accident. I am pleased to have the opportunity of supporting this measure. If there is in it anything that does not exactly carry out the will of the Parliament, we shall be free to amend it as soon as that defect is discovered. We cannot hope to pass a perfect Bill of any kind. It is only in the administration of a law that its weaknesses are discovered; it is only in its every-day operation that we learn whether or not it carries out the intention of the Legislature. This is a Bill that ought to have been passed years ago, and I hope that it will -speedily become law.
.- The honorable member for East Sydney has hardly done himself justice in his references to the Deputy Leader of the Opposition. Those who have been associated with the honorable member for Parramatta will freely admit, whether they differ politically from him or not, that every measure -devised for the well-being of the workman -and his family has commanded his sym pathy and active support. Whatever criticism the honorable member for East Sydney may indulge in is not likely to affect his political reputation or personal character. The honorable member caa show that he has done more than have many others to secure practical assistance for those who are likely to be injured while following their ordinary avocations. Coming now to the Bill itself, I may say that its underlying principle is not new to the Opposition, and that I am delighted to support it. The matter which it covers first came under my attention about the year 1904, when an officer of the PostmasterGeneral’s Department was injured by a falling telegraph pole.
– It was a Tairo case.
– The man died, and his widowed mother, who was dependent upon him for her support, did not receive a penny by way of compensation. It was discovered that a reduction was actually being made from the wages coming to him in order to cover funeral expenses.
– Dear old Treasurer Turner !
– Sir George Turner was not then Treasurer. I believe that the present Treasurer, on taking office, cancelled the order that that deduction should be made from the wages falling due to the man, but there was no provision for compensation. Later on, I was a member of a Government that had to face the same problem. The honorable member for EdenMonaro then held office as PostmasterGeneral, and after discussing the matter with his colleagues, issued, on 13th May, 1907, an instruction in which he approved that provision should be made on the Estimates of his Department for the payment of compensation -
The maximum payment was fixed at , £500. Our desire was to place this principle upon a definite basis. We have hitherto had to resort to the passing of special Acts of Parliament to provide for compensation for injured officers of the Commonwealth. In 1908 we passed an Act making a series of grants, amounting altogether to . £2,438, to various persons. The largest grant was to the widow of Mr. W. T. Martin, of the Postmaster-General’s Department, Queensland, who received £500. The widow of another officer of the Department received £319, and several other grants were made to postal and naval officers. In 1909 Parliament appropriated , £2,842 for this purpose. The difficulty of the situation arose from the fact that there was no system under which every public servant of the Commonwealth could be made acquainted with his rights, and be afforded an opportunity to obtain compensation.’
– Was any provision made for temporary disablement?
– The instruction issued by the Postmaster-General at that time provided for the payment of compensation in cases of permanent disablement.
– Was any allowance fixed in the case of public servants who are injured for a month, or perhaps for a couple of months?
– No. The salaries of such individuals were paid to them until they became permanently incapacitated.
– They would receive their wages if they were temporarily disabled?
-I think’ so. I brought this matter under the notice of the Treasurer on the 12th October, 191 1. I pointed out that a large number of men were then employed by the Government at YassCanberra, and that in a short time it would be necessary to engage some hundreds of workmen in connexion with the construction of the transcontinental railway. I urged, therefore, that some provision should be made to meet cases in which injury might be sustained by these individuals. On that occasion I said -
There ought to be some cheap method of quickly deciding the responsibility, and provision made for dependence to receive almost immediate relief.
– We have done that in special eases.
– That is true; but it would be much better to have a definite system under which this compensation should be paid as a right, and not have to be applied for, it may be, through a Parliamentary representative, or some other person.
– Can the honorable member say whether we have the necessary power?
– I think that, undoubtedly, we have the constitutional power to give compensation to our own workmen.
– I am doubtful about anything of the kind, remembering the Seamen’s Compensation Act.
– Even in regard to that, we still have definite and decided power. I think there ought to be a Workmen’s Compensation! Act for Commonwealth servants.-
The attitude which was then taken up by the Prime Minister was that he did not think we possessed the necessary constitutional power. Again, on the 18th December last, I pressed the matter of passing a Workmen’s Commonwealth Compensation Act forward. The Commonwealth was then about to launch out upon large works. We had in contemplation the appointment of some hundreds of men in Western Australia,, in addition to which workmen- were employed at Yass-Canberra, and numbers were about to be employed in our clothing and harness factories. All of this meant the employment of men in more or less dangerous occupations, and it seemed right therefore that they should be placed in the same position as that which they would occupy if they were in the employ of private individuals. The time, therefore, was getting ripe for the passing of the necessary Statute providing for compensation, instead of resting on an Executive minute. On the 18th December, 191 1, I stated -
Men should get compensation speedily, and’ that compensation should be based on a fixed and liberal scale adequate to the injuries sustained, and sufficient to meet the cases of dependents who are entitled to support.
In reply, the Prime Minister said -
I am entirely in favour of the contention of the honorable member for Darling Downs that we ought to have an Act dealing with all thesecases, but that Act must be on a different basis’ from ordinary Workmen’s Compensation Acts.
I am glad that this Bill is not on a different basis, but that it is exactly on the basisof the Acts which have been found to work so well in other parts of Australia.
– It is too much on. the lines of those Acts.
– I do not think so.
– Is the Bill practically the same as the English Act?
– It is practically thesame as the English Act of 1906, and1 Workmen’s Compensation Acts which are in force in the States of Australia, and the Commonwealth Seamen’s Compensation Act first passed in 1909. The principle of granting compensation to public servants was first adopted in Queensland in 1905, at the instance of Mr. Kidston.
– It was recognised prior to that in New South Wales.
– I am glad to hear that. Sub-section 4 of section 3 of the Queensland Act applies the Act to - any work carried on by or on behalf of the Government of Queensland or any local authority as the employer, if the work would, in the case of a private employer, be an employment to which this Act applies.
That Act applies to all manufacturing, agricultural, pastoral, and other industries.
– Does it not apply to an employ^ of the Commonwealth there ?
– I do not think so. It expressly states that it applies only to the employes of the Government of Queensland.
– Is that a separate Act?
– It is part of the general Statute. I am sure that the Queensland Parliament has no power to determine the principle upon which this Parliament shall grant compensation to its own public servants. The whole trend of modern legislation has been in the direction of improving the condition of the workmen engaged in our various industries. It is recognised that the men employed in them are rendering services to society as a whole. It is the tendency of modern society to take a more corporate view of the relations of its members one to another. The theory underlying the Workmen’s Compensation Act is - to use the phrase of a writer - that the wounded soldiers of industry should be sustained, and that when they fall, those dependent upon them should be compensated by the industry in which they were employed. It is recognised that this compensation is really a charge on the employers, but at the same time it is one which is passed on to the community as a whole. I do not think that the community objects to bearing it. As a Commonwealth we take the same view in regard to Commonwealth employes. The cost of compensating our injured workmen or their dependents is a charge which should be borne by the community as a whole. It is a responsibility that we cannot meet by any system of insurance. The Commonwealth would have to insure, I suppose, if it adopted that method, roughly speaking, about 30,000 servants.
– Quite that number.
– Considering the railway works which we have in contemplation the number would certainly be enormous. In view of the money which would have to >be paid to insure 30,000 employes, I think it would be more prudent for the Commonwealth to take control of its own insurance organization instead of approaching some large corporation for the purpose. We can well take the risk upon ourselves;. Moreover, I do not think that the risk is so exceedingly great. I suppose that out of the 30,000 whom I have mentioned 15,000 are men engaged in clerical occupations. The claims for compensation made on behalf of them will be comparatively few. Still, some claims will be made, and that is an aspect of this? measure which hitherto has been, comparatively speaking, unexplored. We have yet to discover exactly the principles relating to accidents in the case of persons in clerical employment, and who have been injured owing to an accident arising in the course of that employment. There will probably be cases in which that difficulty will be felt. Take the case of a person doing overtime work in the Post Office, and straining himself. I remember one particular case which was brought under the notice of the Government of which I was a member several years ago. We had evidence supplied to us to show that the person was called upon to do some extra work in the Post Office, and strained himself. The consequence was that compensation was given to him.
– That would be an accident.
– It would be an injury arising out of the occupation, though some might consider it as not arising from a sudden accident.
– The strain would occur while the man was following his employment.
– Personally, I should regard such an accident as coming under this measure, and I think that we ought to legislate to cover such cases. The accident is to be determined as a matter of fact in each case, though the question is a mixed one of fact and law. I hope thai; in the interpretation of the Bill a liberal view will be adopted. The tendency of legislation during the last thirty years or more has been decidedly humanitarian as regards the position in which workmen are placed. The zeal for assisting injured workmen was not born within the last three years or even within the last ten years. There have been statesmen who for many years past have considered this problem very seriously, realizing the injustice to workmen and their dependents through re- maining uncompensated when workmen have been injured in the course of their employment. Such statesmen have striven, in Australia and the United Kingdom, to accomplish reforms in this direction; and there are honorable members on both sides of this House who for years have strenuously advocated every measure having for its object the awarding of adequate compensation. By the old common law a master was bound to take reasonable precautions to insure the safety of his servants, and was rendered liable for any injury sustained by such servant when the injury was brought about by the personal failure of the master in his duty. But the three limitations upon that rule, which tended to deprive a workman of his right to compensation, have been enumerated by a recent writer.
– That was Judge-made law.
– Merely to call a law Judge-made law does not help us very much. It cannot fairly be said that the Judges have been lacking, in sympathy for the rights of poor people. The history of the British Judiciary is one of which we have every right to be proud on account of the independence of judgment and the defence of the rights and liberties of the people which that history discloses.
– That is quite true.
– The Judges extended the law against the working people.
– I think the honorable member is quite wrong in that. There were three limitations placed upon the common law. The first was the doctrine of common employment; that is to say, the doctrine that the master was not liable when the injury to a workman was caused by the negligence of a fellow workman in the course of common employment. The second limitation was that expressed in the phrase volenti non fit injuria; that is to say that the master was not liable if the servant knew of the danger which caused the injury, because he was supposed to accept such danger as one of the risks ordinarily incident to the employment. The third limitation was the doctrine of contributory negligence, where the accident was brought about more by the servant’s negligence than by the fault of the master. Modifications of that common law doctrine have from time to time been introduced, beginning in England in 1880, when the doctrine of common employment was altered. The Employers
Liability Act of that year provided that a workman, or, in case of his being killed, his representatives, should have - the same light of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of, the employer, nor engaged in his work.
This right of compensation was defined to arise in five cases : - (1) By reason of any defect in the conditions of the ways, works, machinery, or plant connected with or used in the business of the employer ; (2) by reason of the negligence of any person in the service of the employer who has superintendence intrusted to him whilst in the exercise of such superintendence; (3) by reason of the negligence of any person in the service of the employer to whose orders and directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed; (4) by reason of the act or omission of any person in the service of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; and (5) by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway. This Act brought about a considerable reform at the time, and extended considerably the liability of employers. It gave many men compensation which they could not have obtained before. But, like all other reforms, it did not accomplish everything. The world will go on for centuries trying experiments affecting reforms, endeavouring to remedy evils, and discovering the inconveniences arising from its efforts. Though the Act of 1880 did not accomplish all that was desired, we ought not to blame its authors for its failures, but ought to look back with a sense of gratification to what was then done. It is our duty now to carry on the reform, to find out the evils which have to be cured in our time, and to remedy them as best we can. Many accidents did not come within the provisions of the 1880 Act. Its defects have been stated by a learned author as follows : - In the first place, the employer was able to evade the responsibility by employing a sub-contractor. Further, the phraseology of the law was found to be provocative of much litigation. It was not as clearly drafted as it might have been.. Then no limit was placed on litigious proceedings or their costs. Then, again, most of the common law defences were left open to the employer, including - (i) The servant having undertaken risk; and (2) contributory negligence. Again, workmen <ould contract themselves out of the Act, and finally the definition of “ workman” in the Act was too restricted. All these defects were found to exist, and Parliaments under different regimes faced the problem and tried to improve the position of workmen. Accordingly, in 1893, in the House of Commons, an amending Bill was introduced, and it is in that year that we find laid down for the first time in the Old Country the fundamental principle which we are to-day asked to enact in this Bill. On the motion for second reading, this amendment was moved by the Right Hon. Joseph Chamberlain -
No amendment of the law relating to employers’ liability will be final or satisfactory which does not provide compensation to workmen for all injuries sustained in the ordinary course of their employment, and not caused by their own acts or defaults.
A discussion took place, and the amendment was withdrawn.
– Mr. Ridley was Home Secretary then, I think.
– I am not quite sure, but it was the Right Hon. Joseph Chamberlain who first evolved the principle, and, of course, we must do justice to him.
– I think it was over the water before that.
– We all copied that Bill. It became the first Act.
– It will be found, I think, that it is the first recorded statement of the principle of workmen’s compensation. The Prime Minister, however, is right in saying that it was known to a great many persons what the defects of the old law were, and we all felt that there should be some remedy; but let us give credit to the Right Hon. Joseph Chamberlain for being the first to advocate the principle in the Legislature. In 1897, a Compensation Bill was passed, and then, for the first time, a liability was cast upon an individual to pay compensation for personal injuries which were not the result of any negligence, or any other wrongful act or default on the part of himself or his servants, that is, persons for whom he was responsible. In effect, the employer was made compulsorily insurer of the accidents which happened to his workmen. This Act, of course, was found defective, and it came up for revision. It was a great advance, however. I think that it brought some millions under the Act.
– It was a bad Act at first.
– It did a great deal of good, and the mere fact that it laid the foundation, and brought out its own defects, shows that it was worth enacting. In 1906, the Imperial Parliament passed a law remedying the evils that arose out of the Act, and laid the foundation of the legislation which is being adopted, I am glad to say, in most civilized communities to-day.
– It has not been adopted in Victoria yet, to its everlasting disgrace.
– I hope that it soon will be adopted, but if we look after our own faults instead of finding out the faults of others, we shall have quite enough to do. What I am expressing to-day is gratification that we, at last, are passing a measure which I have advocated continuously, because I believe that it embodies a right and just principle, which I think will be found in operation to be very successful. I wish to make a short reference to some remarks that fell from the honorable member for Hindmarsh. If he will only look through the recent decisions of the House of Lords and the Divisional Courts in the Old Country on the interpretation of this Act - and I speak as one who has had some practical experience of the working of the Queensland law - he will find that the whole trend of interpretation is in favour of the workmen.
– That is since the House of Lords gave their decision.
– Since the Act has been passed.
– And in some instances, I1 am glad to say, under the old Act, that view was taken. I shall give just one illustration of it, from a decision by Lord Macnaghten, in the case of Fenton v. Thorley and Company “Limited, in 1903. The whole question turned upon what was an accident. Of course, a narrow meaning of the word “ accident “ might have meant depriving the Act of a great deal of its utility. But I am glad to say that the Lords did not take the narrower view which prevailed in some earlier cases, notably the cases of Hensey v. White and Roper v.
Greenwood. A recent text-book, The Workmen’s Compensation Act, by Mr. W. A. Willis, says -
In that case [Fenton v. Thorley and Company Limited) a workman had, by over-exertion, ruptured himself in trying to turn the wheel of a machine in the ordinary course of his employment. The House of Lords held that he had suffered an “ injury by accident “ within the meaning of the Act, and laid it down that the word “ accident,” as used in the Act, was used “ in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed “ (fer Lord Macnaghten) ; or as denoting or including “ any unexpected personal injury resulting in the workman in the course of his employment from any unlooked-for mishap or occurrence “ (fer Lord Shand).
I do not think that there is anything to be gained from a longer discussion on this measure. I believe that in practice the Minister will find that it will work out in the way desired, and I hope the Administration will do all that they can to facilitate the working of the Act. There are three ways in which the compensation will be paid : One will be by an agreement with the Claimant, and I’ hope that in nearly all cases such a reasonable spirit will prevail that it will be possible to have a settlement of the whole matter without any litigation. There is a method of suing in a District Court, and there is also an appeal to arbitration. The experience of cases elsewhere shows that these need not be in any way costly proceedings, but the best results of the Act should be obtained by administration. The chief feature which commends itself to my view is that it takes it out of the hands of any individual to recommend, and leaves to the individual injured the complete right to demand, compensation. The Commonwealth takes up the liberal attitude that if persons who work in its service, doing, as we believe, good work for Australia, be injured by accident, the nation shall bear the responsibility, and see that their dependents shall not suffer.
Sitting suspended from 6.28 to 8 p..m.
– I support the Government in this proposal to provide for the compensation of workmen employed in the service of the Commonwealth for injuries suffered in the course of their employment, and have no wish to occupy time by merely mentioning the provisions of the Bill which meet with my approval, nor by referring to those matters of detail which had better be left to Com mittee ; but there is one matter of importance to which I invite the attention of the Prime Minister. It is provided that compensation shall not be payable unless the incapacity of the workman injured lasts for two weeks, in which case there is to be a weekly payment not exceeding 50 per cent, of his average weekly earnings during the previous twelve months, but in no caseamounting to more than 30s. In Committee I shall move to amend certain paragraphs in the schedule, because when a workman is injured through no act of negligence or lack of ordinary care, it is monstrous that he should not receive compensation should he be incapacitated for less than two weeks. Nor do I see justification for limiting the compensation to 50 per cent, of his weekly earnings. Men having to do with the . installation of electrical plant, and constantly working among live wires, may, through no fault of their own, be burned or otherwise injured, and where wages are small, it is a very serious thing to have to forego them through being laid up for less than a fortnight. Compensation for all injury suffered in the course of a man’s employment should be charged against the work on which he is employed. I do not know whether this matter was considered before the Bill was introduced ?
– The Bill conforms with the general principles of such measures.
– It seems merely a copy of what I call the conservative Workmen’s Compensation Acts.
– Quite true, but it is about the best going. I would say, “ Pay those who are injured their wages, and pay for attendance on them, too,” speaking by and large.
– Then let us put that into the Bill. I have had a good deal to do in connexion with claims for compensation for accidents. It was the practice of the Railway Department in New South Wales to continue to pay in full men injured by accidents which had not resulted from their own negligence.
– Is there not a law in New South Wales requiring that to be done?
– It is now required under an industrial award. The New South Wales law on the subject of compensation was introduced by the Wade Government, but we should get something better from this Government. If the New South Wales Government introduces an amending Bill, I have no doubt that it will be a considerable improvement on the present law.
– In New South Wales they have an Act for the compensation of miners who may be injured.
– That is not a general Workmen’s Compensation Act. The New South Wales Railway Commissioners have passed a regulation providing that workmen who were injured by accidents which were not due to their own negligence should receive full pay during the period of their incapacity, and half pay in those cases in which the accidents had been contributed to by the negligence of the workmen injured. Difficulties arose, however because the Department sometimes took the view that the accident had been contributed to by the negligence and want of care of the person injured, while the latter claimed that it was not due to his fault, and the decision of the Chief Commissioner was final and without appeal. Consequently, the effort was made to give the regulation the force of law by having it incorporated in an industrial award, and it has been incorporated in the Railway Quarry award. Now when there is any difference of opinion, the matter may be brought before a Court for judicial decision upon evidence. There should be a similar provision in this Bill. Although the schedule follows the lines of other legislation, I feel sure that the provision to which I have called attention cannot be defended, and I ask the Prime Minister to take the matter into his consideration, so that during the Committee stage an amendment may be made, incorporating in the measure, with his approval, and the general consent of honorable members on this side, the suggestion I have put before the House.
.- The principles of legal reform embodied in the Bill have been adequately dealt with by the honorable members for Angas and Darling Downs, and I shall not attempt to cover the ground they have traversed. When the Bill becomes law, the only defence which the Commonwealth Government can offer to a claim to compensation made by an employ^ will be that the accident was due to his “ serious and wilful misconduct,” a stereotyped phrase taken from other legislation, the old defence of contributory negligence and other technical defences now open to private employers and to the Commonwealth being waived. I wish to draw attention to the fact that, al though the Bill applies to the 34,000 or more persons in the Civil Service of the Commonwealth, and therefore will be a very useful measure, it will not apply to the members of our Naval and Military Forces. Some justification should be given for the withholding of its benefits from the latter.
– I stated, in my secondreading speech, that they were otherwise provided for.
– I am aware of that; but I do not think that they are provided for in the same liberal manner as are the other employes of the Government under this Bill. In addition, the provision, being based purely on regulations, is not of that permanent and reliable character that the employes of the Commonwealth, including those in the Naval and Military Services, are entitled to expect.
– I ask the honorable member not to go into the details of the Naval and Military Service conditions.
– My point is that it is necessary that this Bill should be extended to naval and military employes, for the reason that they do not receive adequate protection under regulations.
– I must ask the honorable member not to continue this line of argument, or we shall be discussing the naval and military regulations, and not the Bill.
– I was going to point out that the naval and military men ought to be included, because they are not protected by the regulations in the same way as are the other employes of the Government by this Bill.
– Are the naval and military men workmen?
– They are in the service of the Government.
– So are we.
– The naval and military men ought to be included in the general scheme, under which the Government cannot set up the defence of contributory negligence; they ought to enjoy the same rights and privileges that are enjoyed by public servants generally.
– The honorable member is anticipating a question on the noticepaper - a question which is outside the scope of this Bill.
– Perhaps the proper way would be to move an amendment in Committee to strike out the exemption, which will afford ample room for argument.
– The Government are to be congratulated on the introduction of this Bill, but it is a matter for regret that a measure of the kind was not passed by a previous Parliament. The necessity for such a Bill is in proportion to the number of employes of the Commonwealth, and, considering the number in the Postal Department alone, it is rather surprising that no attempt has before been made to pass it. It is. not proposed to do anything alarming or novel, because there is nothing original in the measure, which is on the lines of up-to-date legislation. The Bill may be described as one of a liberal character, seeing that hitherto the maximum compensation in the case of fatal accidents has been only £300, while now we are providing for a maximum payment of £500. This shows that the Government and the Crown Law Department have looked carefully into the matter, and have copied legislation which is common all over the civilized world. In the British Empire, at any rate, a State without legislation of this character must expect to be regarded as almost barbarous. I am informed that in Victoria there is no Act of the kind ; and, if that be so, I can only say that the men of that State ought to be ashamed of ^themselves. It is perfectly ridiculous for the people of Victoria to talk about their industries and their wealth, when they have arrived at no up-to-date method of making compensation to workmen a charge on the community.
– There is the Victorian Employers Liability Act.
– That is an absolute fraud and farce, and was never intended to be anything else.
– A snare!
– I have been so long a public man that I have ceased to believe in the honesty of men who promote such legislation as the Employers Liability Act. On the part of those men there is too much “ tongue in the cheek “ ; too much giving with one hand and taking away with the other, and too much offering possibilities to a poor man and then giving him nothing but a lawsuit. The men who have got anything under the Employers Liability Act could be counted on the fingers of both hands. It is too much to ask us to believe the promoters of such legislation to be honest, when we know it to be a sham and a fraud. It is not pleasant to say such things, but they are true. This legislation indicates a very interesting phase in judicial decisions; and a little consideration in this connexion will throw some light on modern history. Under the old common law a workman was entitled to compensation ; and in the early days, when actions were brought, they were always successful. One is not altogether surprised to find, at any rate in the Old Country, a feeling that there is a great deal more in the common law than in Statute law. In the common law there seems to be some principle of justice and equity that is not, I am sorry to say, to be found in Statute law. As manufactures increased, and factories got into full swing, it was discovered in America, in 1837, that, under what was called the doctrine of common employment, a workman could not claim any compensation from his employer. I never knew anything doubtful from a legal point of view that has not come from America ; and of this we have had pretty solid demonstration in the last few years. The workers of the Empire and of the world are indebted to the American Courts for the discovery of this# wonderful “doctrine of common employment.” This decision afforded” a splendid opportunity to the Judges of taking sides and of throwing the whole of the cost of the suffering arising from the increased manufacturing production of the world on the poor working men. The prospects opened up by the American decision were so alluring that the English Judges in the forties adopted the same decision. To the honour of the Scotch Judges, be it said, they absolutely refused to admit this doctrine of common employment, and it was only on a case of appeal from a Scotch Court that the House of Lords decided, as recently as 1870, that the doctrine of common employment was the law of the Empire. The honorable member for Darling Downs told us about the attempts of certain geniuses, in 1880, to amend the law ; but those who made them did so with their tongues in their cheeks. It is too great a demand to make upon my credulity to ask me to believe that such men honestly considered that they were going to do something for the benefit of the working people of England. I am too old-fashioned, also, to believe that educated and trained lawyers did not know what they were about. It was shadow legislation - a great many clauses in an enactment, each contradicting the other. The only result of such legislation is litigation, and, in litigation, it is the man with the money who wins. There is a very simple rule by which to measure the greatness of any public man. We have to ask ourselves whether he devoted his energies and talents to the betterment of the conditions of the” people, or spent hrs life in retarding the betterment of the people. Though we may be too near the events in the career of the Right Honorable Joseph Chamberlain to form a proper “estimate of him, it must be said to the honour of that distinguished man that it is to him we are indebted for the laying down of the principle of compensation to workmen in England. Those of us who know something of the demand for legislation of this character amongst working people are aware that when such legislation was first proposed it was said that a workman would break his leg for the purpose of getting compensation. That was the sort of statement we heard year in and year out in reference to legislation of this character. It is a comparatively easy matter in the Federal Parliament for a strong Minister, with a fol4 lowing behind him, to carry legislation for the benefit of the people, but the man who could engineer through the British House of Commons and House of Lords a measure revolutionizing previous legislation on a subject of this kind has established his right to be regarded as a strong man. The nagivation law which he was successful in passing a year or two previously, and the law to which I refer stand out on the English statute-book as monuments of the legislative achievement of the Right Honorable Joseph Chamberlain, who must be admitted to be one of our most distinguished countrymen. The right honorable gentleman admitted that the measure which he introduced did not go so far as he would like, but the English law has since been amended, and is now up to date. The principle laid down in the Act passed by Mr. Chamberlain in 1897 is the basic principle of legislation of this kind. I know that in South Australia the late Right Honorable C. C. Kingston was successful in carrying a measure which was almost identical with that introduced by Mr. Chamberlain. It was passed by the South Australian Parliament with some modifications. Honorable members will not be surprised to hear that, because they would not expect any measure of a liberal character to run the gauntlet of a State Legislative Council in Australia. Honorable members opposite do not seem to realize that distinction between the State Parliament and the Federal Parliament. We know that, although an able man may desire to do some good during his career in one of the State Parliaments, he finds his efforts often nullified by the State Legislative Council. There were several defects in the earlier legislation on this subject. It was applied to injuries occurring in factories, on wharfs, in coal mines, and engineering works, and many thousands of workmen suffered injuries for which they could get no compensation, even under such a liberal measure as that to which I have referred. It is a curious fact, which struck me some years ago, that the whole of the magistrates and Judges in England, in interpreting Mr. Chamberlain’s Act, did so always in the interests of the employer, and never in the interests of the suffering workmen.
– Does the honorable member think that that is quite a fair statement to make?
– It is a statement of fact. I remind the honorable member that when an appeal in a certain case came before the House of Lords, they gave a celebrated decision, in which they said that the principle of the Act was to give a benefit to workmen, and it should be popularly and liberally interpreted in the interests of workmen. After that decision the various Judges felt bound to follow suit, because the House of Lords is the highest Court of Appeal in the Empire. I propose now to make a remark which will probably horrify some of my honorable friends on this side, but I should have no difficulty in citing quite a number of cases to justify my contention. I say that we get more equity, justice, and sound law from the Privy Council of the House of Lords than from any other tribunal in the Empire, and I say further that it is the cheapest tribunal in the Empire to approach. It is often said that we are living under laws passed by the Parliament of the country ; but such a statement is very wide of the mark. We are really living under Judge-made laws, and, what is more, the unwritten rule of interpretation adopted by the judicial Bench is that they should never interpret any reform in the law against vested interests, established practice, or the recognised principles of the law as hitherto laid down. It is not until Parliament has, by repeated legislation, made known its intention in the clearest possible manner that it is possible to get what I may describe as a popular decision, or, in other words, a decision such as would be given by any man of average intelligence after he had carefully considered the whole question on which a decision was sought. No doubt the Opposition will say that this is an extravagant statement, but I can prove every word of it. I defy any one to disprove the statement that the doctrine of common employment is a Judge-made law, and that the whole of the judicial Bench and the magistracy in England at first interpreted the Chamberlain Act against the workers. To the honour of the House of Lords be it said that, when an appeal was made to it, the Law Lords decided that that Act was for the benefit of the people, and that it should be interpreted from that stand-point. In that case the House of Lords gave a snub to the lower Courts. I have no desire to deal with contemporary history, but I appeal to honorable members who, like myself, have a fairly good memory, to say whether it is not true that the judicial Bench have always interpreted the law from the standpoint that vested interests, inherited prejudices, and everything as it exists to-day must be protected. The Bench is a conservative body, and the Judges say in effect, “ You must not go too fast; you must go slowly.” That the judicial Bench takes up that attitude is clearly shown in connexion with the history of legislation of this character. I propose now to refer to a defect in the Chamberlain Act, although I have no desire to say one word in unfriendly criticism of . its distinguished author. 1 I fully appreciate the enormous difficulties with which he was beset in passing such legislation. The difficulties of public men here are as nothing compared with those which public men in the Old Country have to face in passing legislation of this character. Under the Chamberlain Act it was possible only to recover compensation where injury was sustained as the result of an accident on the employer’s premises - in other words, in or about a factory, wharf, engine-room, or workshop. In the South Australian Act, which was piloted through the State Parliament by the late Mr. Kingston, that defect was repeated, but it has been remedied in the latest amendment of the Imperial Statute. It also provided that a man should be entitled to recover compensation only to the extent of 50 per cent, of his average weekly earnings. Under such a provision, men who in the course of a week were employed by several different persons or firms were very unhappily situated. It hit the waterside workers of Australia very hard. These men are employed one day by a certain shipping company, another day by a totally different company, and perhaps on the following day by a stevedoring company; so that 50 per cent, of their average weekly earnings in the employ of any one man or firm would amount to only a few shillings. I undertook an amendment of the South Australian law to get rid of this trouble, and, with the assistance of one or two of my legal friends, succeeded in carrying an amendment through the South Australian Parliament. Under the amending, Act we assumed that the average weekly earnings of this class of worker was ^2 per week, and in estimating the average weekly earnings it had to be assumed that a man was entitled to j£i per week, irrespective of the number of persons by whom he might have been employed during that week. That principle applied to other workmen employed in the same way by different firms. Under the Chamberlain Act and the Workmen’s Compensation Act as originally passed in South Australia, a man who was injured whilst in the workshop or factory of his employer was entitled to compensation, but if he were sent by his employer to carry out certain work on the premises of a client, and met with injury whilst doing that work, he was not entitled to claim compensation, inasmuch as when the accident occurred he was not in his employer’s factory. To get over that difficulty, we provided under the South Australian amending Act that an employ^ who had to travel about in this way should, so to speak, carry his master’s factory on his back. I believe that the South Australian Judges have declared that that amending Act is the most disgraceful piece of legislation ever passed ; -that it is an outrage on legal phraseology. An Act of Parliament must, above all things, look nice, and be perfect in construction. With some persons the question of whether or not the people will be benefited by it is quite a secondary consideration. As long as an Act of Parliament is artistic it is all that is desirable. The South Australian Judges said the Act to which I referred spoilt the look of the law ; but the fact remains that, under it, those who are entitled to relief are able to secure it. The defect in the Chamberlain Act could not be avoided, but it could, and should, have been avoided by us. I think that the Bill now before us embodies all the improvements of the latest legislation on the subject, but it needs to be carefully examined. The defects of previous legislation have been in regard to casual employment or employment extending over short periods. A man who has been in the employ of the Commonwealth for a week, a fortnight, or perhaps a month, is just as liable to meet with an accident as is a man who has been in that employment from the inception of Federation. The honorable member for East Sydney has just reminded me that the Bill does not provide for any payment to a workman during the first week that he is incapacitated as the result of an accident. But, nevertheless, it is a copy of all the Statutes dealing with this matter. I would also point out that the same practice is followed by all friendly and benefit societies. I do not know whether there is any reason for it, but I am inclined to think that there is. Perhaps, an amendment might with advantage be introduced to provide that where a workman as the result of an accident is incapacitated for three or four weeks, he shall receive compensation for the whole term. But where be is laid aside for only eight or nine days, the -position may be somewhat different. A man who is disabled from following his employment for three weeks or longer should be paid for the full term.
– I agree with that.
– It would be interesting to obtain the number of fatal accidents that occur in Australia.
– There is no record kept of them.
– There ought to be. Surely it would be wise for our statisticians to collect that information. Why should we be compelled to argue in the dark ? In England it is possible to obtain statistics relating to fatal accidents, and to accidents of almost every description. It would be interesting to learn the loss of life which is sustained in our industrial war. I venture to say that in the Motherland more lives are sacrificed in developing its productive resources than would suffice to cover a good many of its large battlefields. Seeing that the liability of an employer to pay compensation to a worker who may be injured in his employ, can be transferred to an insurance company, there is just a possibility that a spirit of carelessness may be engendered on the part of employers. I do not say that this is so in respect of the Commonwealth Government, or indeed of any State Government. The legislation of South Australia in this connexion is fairly up-to-date, but that of Victoria is a disgrace to civilization. I understand that in recent years there has been an improvement effected in New South W’ales legislation, whilst Queensland has no reason to reproach herself that her laws in this regard are not uptodate. But we cannot be too careful in insisting that an inquiry shall be held into all cases of fatal accident. It is all very well to grant compensation to the dependents who are left behind, but that does not restore to them the life which has been lost. Legislation of this character evidences that a more humane spirit pervades the community to-day than existed in the days of our forefathers. It is certainly remarkable that it never occurred to our predecessors to make such a calamity as the loss of the bread-winner a charge upon the general community. When we talk of our boasted civilization it is just as well for us to look on the other side of the picture. As a great employer of labour, the Commonwealth cannot afford to delay the passing of a Bill of this character for a single day.
– I was very pleased to hear the eulogy bestowed upon the House of Lords by the honorable member for Hindmarsh. I do not quite know the party to which he would belong if he were in British politics. The Labour party would not want him, nor would the Irish Nationalists. The advanced Liberals would not have him, so that probably he would be obliged to join the Conservative wing.
– The honorable member for Hindmarsh spoke of a Court, not of a party.
– I know what the Privy Council of the House of Lords is just as well as does the honorable member for Hindmarsh. I do not think he should have attacked the judicial Benches at Home merely because, upon appeal, some decisions have not been upheld by the Privy Council. I think he would probably find that in a great many cases the judgment went the other way. The honorable member did not confine himself to an attack on British tribunals, but followed that up by an attack upon our own Judiciary.
– Quite right, too.
– Does the honorable member include all the Judges? I suppose he would include Mr. Justice Higgins. Have his judgments always . gone against the poor working man? I do not think so. But the honorable member made no distinction. He included all other tribunals, and said that their findings were almost invariably against the working man and in favour of the employers or capitalists.
– He meant the honorable member’s friend, the Chief Justice.
– Will the honorable member include Mr. Justice Higgins?
– No, I will not.
– Then the honorable member makes distinctions ?
– There is a difference between a man and a learned owl.
– The honorable member cannot be referring to himself. If it were not for two facts, I should certainly compliment the Government upon the introduction of this Bill. I am quite in accord with the principle of giving compensation to employes who suffer through accident or illness caused by their employment. 1 agree with the principle of compensating the servants of the Commonwealth, and should approve of the measure in that respect were it not for the fact that the avenues of employment in the Commonwealth Service are not now open to all sections of working men. The Service has become a close borough for one section - the unionists. Of course, the Government wish to grant all sorts of privileges to unionists/ Circulars have been issued by Ministers that only unionists are to be em-, ployed in the Service.
– What is wrong with that?
– I say that it is very wrong, indeed. Inasmuch as the Service has been made a close borough for unionists, I am not at all satisfied with this measure.
– The honorable member knows that that is not correct.
– The honorable member for Corangamite knows very well that the Service has become a close borough for unionists.
– If the honorable member is not satisfied, at all events he has not the courage to vote against this Bill.
– If this privilege is to be given to employes of the Commonwealth, let all working men have an equal chance of entering the Service. Non-unionists are just as good as unionists.
– The honorable member ought to make that remark to an audience of miners.
– I will say it at North Sydney whenever I get a chance. I also notice that the Government have very carefully excluded members of the Naval and Military Forces from this measure. I heard one honorable member interject with a sneer, “Are they working men?” 1 know that many, honorable members., entertain an idea that the members of the Naval and Military Services do not work : that they merely wear their uniforms, and do nothing. But let me tell them that those iri the Defence Forces work just as hard as any other employes of the Commonwealth, lt is wrong that they should be excluded from the privileges conferred by the Bill. I object very strongly to that proposal.
.- It is rather surprising in this humanitarian age that there should be one voice raised against this Bill. But one honorable member has had the courage to denounce it.
– I did not denounce the Bill at all; I said that I approved of the principle, but did not approve of its application in two respects.
– The honorable member’s objections were not founded on fact. Surely he has sufficient intelligence to know that no condition in regard to unionism is attached to entrance to the Public Service.
– Ask the Minister of Home Affairs.
– The honorable member never heard of the Public Service Commissioner ‘laying it down as a condition that persons entering the Service were to belong to a union.
– What about the 17,000 casuals ?
– It was only recently that members of the Service became organized at all. They did so voluntarily; and even the party opposite, when they held the reins of government, recognised the rights of members of the Service to form unions. They also admitted that it was a good thing that they should do so.
– Order ! Will the honorable member confine himself to the Bill?
– It is not wise to allow statements which are not founded on fact to go forth uncontradicted. The history of this kind of legislation is a very interesting one, though I do not propose to enter into it now. At the present time, we speak of giving compensation to workmen. Formerly, they had to secure what were termed damages when they were injured. The term used has completely changed, and the change expresses, in a very marked manner, the difference in attitude towards workmen who meet with injuries in the course of their employment. 1 have had many years’ experience of accident funds, and know their working well. As a matter of fact, in New South Wales some records that 1 had personally kept, together with facts secured from the Newcastle district, constituted the only data which the actuaries had to work upon when the Mines Accidents Relief Bill was passed by the Parliament of that State. That fact emphasizes a point referred to by the honorable member for Hindmarsh, namely, the lack of statistical information in Australia relating to industrial questions and problems. Whilst I was secretary of the Amalgamated Miners’ Association, I kept records of accidents. I may tell honorable members that in one mine 47 per cent, of the persons employed were injured every six months. In another mine, working in a similar alluvial lead, the accidents were kept down to 12 or 13 per cent. I claim that the majority of the accidents that occur are preventable, and can easily be traced to their causes. In only a small number of cases is the employe himself to blame. There are, of course, cases of negligence on the part of men. Even those working in the most dangerous of callings become somewhat inured to risk, and will occasionally act recklessly. But that does not relieve the employer of responsibility. In. the case of the Commonwealth, the employer, when carrying out public works, will have to see to it that men are put in charge who will insist that workmen shall be careful, and that the conditions are such that accidents will not be likely to occur. Accidents cannot, perhaps, be got rid of entirely, but they can be reduced to an astonishing minimum. The case I cited is an illustration of what can be done in regard to mining. The record which I, as secretary, posted up, with full particulars, was looked at, and the manager took a pride in endeavouring to reduce the number of accidents to a minimum. In the other mines, however, they were driving and rushing the men. They were of the commercial type, looking out for profits, and not caring about what happened to the workmen who produced the profits. In regard to mining disasters, it is shocking what a degree of carelessness there has been. Many amendments of the law have been made. Why ? To compel employers to observe certain regulations which experience had suggested as being wise for the protection of life and limb. The honorable member for Darling Downs has suggested that the strain which may come from an accident may be counted as an injury.
– An injury resulting from an accident.
– I wish to oppose any such idea. I have had a very long experience, and the definition of “accident” adopted by the Amalgamated. Miners’ Association was one which I drafted nearly thirty years ago, and I think prior to the decision of the judge, whom the honorable member. for Darling Downs quoted. My definition of an accident shortly put was this - “ An accident is something which occurs more or less suddenly, and which could not be foreseen or prevented by the person to whom it occurs.” That is the definition which is taken as a guide in the payment of benefits in the Miners’ Association. I understand that the decision of the English Judge which has been quoted is very much in keeping with that definition.
– “ An untoward event which is not expected or designed.”
– I have never met a mau who desired to get laid up. After the speech of the honorable member for North Sydney, possibly some honorable member may raise that old argument in opposition to the measure. What we need in connexion with all this kind of legislation is effective machinery for having accidents properly reported, so that inquiries can be held as to their causes. My object in making these remarks is mainly to impress upon honorable members a point which I do not think has been dwelt upon. It is based upon my studies of this subject, extending over very many years, especially in connexion with the calling with which I was associated, and. also my examination of the records of industrial accidents and the deaths which resulted therefrom. The point is that if we make employers responsible, there should be some machinery for putting a degree of responsibility upon those who. are over the men. With the provision of this machinery, there always follows an immense decrease in the number of claims. It exercises a large educational influence upon the employers and the managers in every line of industry.
– How would you carry out that idea in connexion with railway construction by the Commonwealth ?
– That is one of the points to be considered. It is necessary to attach certain degrees of responsibility to those who are over the men. I do not like an insurance system as a system of laying off, for that reason. Suppose that we had the power to legislate in. regard to all occupations. I should like to see the whole burden of an accident placed upon the industry concerned, the compensation paid being taken out of the profits, as it were. If that were done, a keener interest would be taken, and more safeguards would be voluntarily applied by those who were over the men, and the number of accidents would, I think, be reduced by 50 or even 70 per cent.
– It would become protection instead of compensation.
– We ought to see that our officers are not careless, and that all necessary appliances are provided. I have in my mind a case which occurred in connexion with our Public Service. A very serious accident happened to a man in Sydney. His leg was broken in two places, and it was thought that he was going to be permanently incapacitated. No provision of this kind existed. They cut down his wages, and paid him for a little while. His injury occurred by reason of his very eagerness to do the Commonwealth’s work, and the parsimonious character of the engineer who grumbled whenever the man in charge of the job asked for sufficient assistance. In this case, the man in charge of the work ought to have had an extra man, because the men ‘ were working in a dangerous place.- The railway engines were running about, and under the regulations this officer had the right to call for the services of an extra man, but he was trying to get through with the work without that assistance, because he had always been complained of whenever he had asked for the services of an extra man. Now, an officer who is treated in that manner does not like to apply again for additional help. That kind of thing occurs on all large works, and it should be made, if possible, a black mark against the promotion of an officer if he has a certain number of accidents occurring to men under his charge. There should be a most careful inquiry held into the cause of every accident. It will be found that if a careful record is kept, it is easy to ascer tain the causes. I may mention that, after having retired from the position I held of secretary, and removed to a sister State, I was invited to go through the books of my old branch, because they had been unable to meet the accident demands, and had been called upon to make levies. After going into the old percentages, I had no difficulty in locating the mines where the loss had occurred. When I had made a little inquiry, it was easy to see it had occurred through trying to get more work out of the men than they were able to do. As regards the question of overtime, and the talk about strain, I contend that there should be short hours. It is notorious that in every country where records are kept - take Germany, for example, where elaborate records are kept - the great body of accidents occur in the last hour, or last hour and a half of the day’s work. If the hours of labour are lengthened, the number of accidents is increased. This phase of the subject requires a little reflection, because it confirms what has been said as to the responsibility of the community. It is the duty of the lawmakers to see that employers of all classes who, either through carelessness, or, in very many cases, through ignorance and pure thoughtlessness, cause injury or death to men, take such precautions as are reasonable and necessary to prevent accidents and thus save life. It is a most serious thing for bread-winners to lose their lives; but an immense percentage of the accidents that now occur are preventable, and thus create a communal responsibility. The Bill will affect a large number of persons. The Public Service of the Commonwealth is sure to increase, and, the honorable member for North Sydney notwithstanding, will increase very largely when we. have industries of our own.
– What industries?
– Many industries will ultimately be under Commonwealth control, which the honorable member used to advocate long ago. Thus we are laying a good foundation for the future. I should like to see a complete record of accidents kept.
– The Treasurer wilt have to keep such a record after the Bill has become law.
– Yes. The Victorian Mines Department took from my work the suggestion that accidents should be classed as “ serious “ when the injured person is laid up for three months or more, and as “ not serious “ when he is laid up for less than three months.
– Would the honorable member have a report made to Parliament annually on the working of the Act?
– Yes; but legislation is necessary also to compel the keeping of records. It should be made an offence not to report an accident. One of our difficulties has been to get accidents promptly reported. We have found that we could get this done only by the withholding of benefits. The records now available are nothing like complete. Some industries are much more dangerous than others, and therefore the percentage of accidents varies in different industries, accidents being fewest among clerks in offices. As for accidents or sickness due to overwork.. I would say that we should not allow overtime to be worked if that could be avoided. I am averse to the idea of compensating for injury resulting from too long hours, and too much work, because the hours of labour should not be too long. I understand that the Prime Minister has agreed not to make any deduction when incapacity results from an accident. By the societies to which workmen contribute so that they may have sick or accident pay compensation is given from the date that the incapacity commences, and many decent firms pay full time to employes who are away from work because of sickness or accident. ‘ The Commonwealth should not be less liberal. The better the treatment given to our public servants the better the Service will be, and the better the results which will be obtained from it. I am pleased that this Government propose to add this fresh piece of humanitarian legislation to the statutebook. The measure will have a great educational effect, and thus will tend to minimize accident. Employes and overseers will both learn to be more careful. When complete records are kept, I hope that overseers under whom more than a certain percentage of accidents occur will be regarded as unfit for their positions. In my experience accidents are traceable more often to the carelessness or unfitness of the overseers than to the negligence of the men themselves. The rush and tear under which many operations are conducted, and the use of faulty material, in the long run do no one any good, not even those who are trying to effect savings bv cheap and hurried work. Big accidents in mines have often been due to sheer bad management. I say that from my personal knowledge. Parliament must do all it can to prevent accidents. It is a disgrace to the Parliaments of the States that they have neglected this subject so much. It shows that their members have not at heart the welfare of the wage-earners who produce the wealth of the country. Accidents resulting in injury, or loss of life, not only bring suffering and hardship into many homes, but also cause economic loss to the community. Some countries keep very interesting statistics, showing the loss of time through sickness, in various industries, in some of which it is very high. The aim of modern legislation is to minimize this economic loss by the regulation of industry by factory and mining laws, and by the education of the community. Experience shows that the accidents are more numerous with new men, men who have not got used to the work to be done. The aim of the community should be to preserve the health and wellbeing of the workers, and thus to prevent economic loss. There are men of great skill whose places are hard to fill, and when they are laid aside loss is suffered, first by their families and their employers, and ultimately by the community ; but these losses are largely preventable, and will be minimized by the education of the public and the collection of reliable statistics. All employers and all workmen should be responsible for furnishing reports of accidents in which they are concerned. This will enable records to be kept which will show the effect of legislation like that under discussion. I Heartily welcome this excellent measure, and I am glad to hear members of the Opposition speak in favour of it, though that is only what I expected. I was rather surprised to hear one honorable member speak adversely.
– There is not one.
– But that honorable member will not vote against the Bill.
– The honorable member is not fair !
– This sort of legislation ought to be quite free from anv party considerations - from any of the narrower considerations of unionism or non-unionism - and I am sorry that anything of the kind should have been introduced.
– This is a measure which we on this side, at any rate, do not regard as in any way of a party character. I do not think that any section of the House can lay ex- elusive claim to the principles of humanitarianism; and this is a measure on the general principles of which we are all agreed. I regret very much to find that, because one honorable member on this side happens to place his finger on what he regards as an obvious defect in the Bill, the incident should be at once seized on by honorable members opposite as an excuse for’ charging honorable members on this side with opposing the Bill. Apparently nothing annoys honorable members opposite more than to find that honorable members on this side do not oppose measures of the kind. As a matter of fact, in regard to humanitarian measures, the initiative has been taken by the Liberal party, as was shown long before the Labour party came into office. Unfortunately, when honorable members on this side were in office, they had not the funds which the present Government have at their command ; and it is a remarkable fact that the Government have been in office for three years before the introduction of this Bill which thev now bring forward on the eve of an election.
– And this is not a party question !
-I merely mention this fact because an attempt has been made to misrepresent the honorable member for North Sydney, who simply pointed out that, as the Bill involves a burden on the whole of the taxpayers, every member of the community should have equal treatment in regard to employment in the Public Service. The suggestion for such a measure as this came from the Opposition side in a recent debate. There are at present something like 20,000 employe’s in the Public Service who are outside the jurisdiction of the Public Service Commissioner, and directly under the supervision and direction of Ministers. In regard to these employes, Ministerial patronage can be largely exercised, and the honorable member for North Sydney simply reminded us that, only quite recently, the Government, through some of the Ministerial heads of Departments, had issued orders that none but unionists were to be employed when available, and that, when men had to be discharged, ‘non-unionists were to be the first discharged. As reported in Hansard, 191 1, page 634, the honorable member for Ballarat asked the Prime Minister -
He will define the classes of Government employe’s within which members of unions will henceforward be given priority of appointment over all who are not unionists.
To this the Prime Minister replied-
– How does the honorable member connect this with the question before the Chair ?
– I am referring to the defect in the Bill which the honorable member for North Sydney pointed out, namely, that while all taxpayers, whether unionists or non-unionists, had to contribute to this insurance, all had not equal opportunities for employment. To the question of the honorable member for Ballarat the Prime Minister replied -
Other qualifications being equal, preference will be given in all cases.
This shows that the honorable member for North Sydney was perfectly right in assuming that all taxpayers were not going to be treated alike under the Bill - that this was practically a measure which the Government intended should be for the benefit of unionists only. There is no doubt that, by degrees, under the directions given by the Ministerial heads of Departments, nonunionists will be entirely excluded from the Public Service. I, for one, contend that the honorable member for North Sydney is quite right in insisting that no such conditions should attach to employment by the Commonwealth. If this measure is to prove one of equity and justice, we should insist upon equality of opportunity for employment, and see that preference is not given to one section of the community to the exclusion of all others.
– Will the honorable member confine himself to the question before the Chair?
– The honorable member for Darling was allowed to roam “ all over the place “ just now.
– If the honorable member for Darling, or any other honorable member, “ roamed all over the place,” he was wrong, and I was wrong in allowing him to do so. The honorable member himself must not repeat that wrong-doing.
– I thought the honorable member was wandering beyond the scope of the Bill. I have no wish to do so ; but I think I am quite within my rights when I point out that, under present conditions, and with the present Government in office, the Bill is likely to serve only a certain section of the community, while all others who should have equal consideration as taxpayers will be rigidly excluded. I am in full accord with the general principle of the measure,
– But the honorable member will vote against it.
– If the honorable member believes what he is now saying, he will vote against it.
– That is an entirely illogical conclusion. The Honorary Minister is one who is always complaining because the Opposition will not vote against measures of this kind - because the Opposition will not give Government supporters platform material to enable them to pose as the only great saviours of mankind at the expense of those on this side. Honorable members opposite know that the ground is cut from under their feet by this lack of opposition. The explanation, however, is that honorable members on this side have always been the initiators of such legislation - have always believed in humanitarian principles. Honorable members opposite have no right to claim that they, and they alone, are the “ pure merinoes “ of humanitarianism. and they cannot substantiate such a claim. The records of the party to which we belong show that humanitarianism has been the keynote of Liberalism ever since Liberalism has existed. Honorable members opposite, who look vainly for opposition to measures of this kind from this side, should remember that fact, and they should not be so ready to twist any statement suggesting that such a measure can be improved ns an evidence of hostility to its principle. That is a dog that will not fight. When the honorable member for North Sydney venturer! to point out what he considered a defect in the Bill, they at once attempted to fasten upon him the stigma of hostility to the principle of the measure, although he was at the time pleading for an extension of the principle. I agree with the honorable member, and with the honorable member for Bendigo, that the Naval and Military servants of the Commonwealth should not have been excluded from the provisions of this Bill.
– Provision is made for compensation to them if “they suffer from accidents in the course of their employment.
– There is no such provision in the Bill. On the contrary, they are expressly cut out. A reference is made in the Bill to public servants, whether employed at manual labour, clerical work, or otherwise, and the mem bers of the Naval and Military Forces should, in my opinion, be included in the expression “ otherwise.” I am sorry that they should have been expressly excluded from the provisions of the Bill.
– Because they are expressly included in other legislation.
– It may be said of some other members of the Public Service that they are expressly provided for in other legislation, but there is no provision in that legislation for compensation for injury in the employment of the public in the manner provided for in this Bill. I hope that before the Bill finally passes Ministers will change their minds on this point, and will agree that what is wise, just, and humanitarian in the interests of ordinary public servants shall be considered equally so in the interests of those who are serving the Commonwealth no less effectually in the defence of the Empire. Their services are really the highest that could be rendered to the whole of the community in the protection of our vital interests, to protect us from invasion, and possibly from an evil which might render a measure, of this kind utterly abortive, by taking away the authority of our own Parliament, and substituting for it another authority under another flag. I was sorry to hear the honorable member for Hindmarsh, in an otherwise admirable speech, make what I consider an entirely uncalled for aspersion upon the integrity of British and Australian Justices. History and experience show that British Courts of justice are the purest in the world. British justice has become a household word throughout the civilized world. It is a great tribute to British justice that western nations that are becoming Europeanized in their habits and customs are taking British jurisprudence as the pattern on which to mould their own judicial systems. I think the honorable member for Hindmarsh might very well have omitted his aspersion upon British and Australian Judges. It would appear that in the minds of certain honorable members the Justices of the High Court and superior Courts of Australia are always associated with the Conservative element in the community, and there is an assumption that they are always against the working classes. I do not think that that is borne out by our experience of them. Here in Australia, as well as in Great Britain, the Judges have always shown a desire to be absolutely impartial. It is only of late years that some desire has, unfortunately, been shown to invade that impartiality which we have always boasted of as characteristic of the administration of British justice both in the Old Country and in the Commonwealth.
– What does the honorable member mean by his last remark?
– I shall leave it at that. Honorable members opposite have not far to go to discover what 1 mean.
– The honorable member has said too much or too little.
Mr.W. ELLIOT JOHNSON.- I am referring to statements which were made on the floor of this House to the effect that Judges should be appointed whose leanings are known to be only in one direction.
– Order !
– I do not wish to go into that. The statement has been made here by honorable members opposite, and I need make no further reference to it. I am certain that in the hands of our Judges the administration of a measure of this kind will be perfectly safe, and the Government will have no reason to complain of any hostility to its general principles on the part of members of the Opposition.
.- I shall try in the few words I am about to say to express my pleasure at the sympathetic attitude adopted towards this Bill by the Opposition. Our only regret is that in the long years that have passed over our heads they did not attempt to put their pious aspirations in connexion with this subject in tangible form upon the statute-book.
– It has taken the present Government three years to do it.
– The honorable member knows that we never had the money.
– The Government have been sleeping upon it for three years.
– It could have been done by Executive act at any time.
– We may have slept for some time, but at last we have awakened from our lethargy, and have given expression to our views in this very serviceable measure.
– Hear, hear ! On the eve of an election.
– Is that why the Opposition are all in favour of the Bill?
– The honorable member for North Sydney made some caustic criticisms in regard to the attitude of this party with respect to preference to unionists. If his observations were not relevant to the Bill they do not require to be answered, but if they were-
– The honorable member would not be in order in referringto them.
-I feel that it would be irrelevant to follow the lines the honorable member pursued, and 1 shall leave that subject. 1 have to say sometmng which is relevant to the matter under discussion, and certainly relevant to what was said by the honorable member for Hindrnarsh, and replied to a moment ago by the honorable member for Lang. The honorable member tor Hindmarsh spoke ot Judge-made law, and said that the decisions o± English Judges were for the most part adverse to tne working man. The honorable member certainly never suggested for a moment that the Judges were Diased. . He made no attack whatever on their integrity, but he was speaking of a condition of things and a phase of thought which has been developed, and in respect of which he said nothing more nor less than the truth. He merely said, as was stated earlier in the afternoon by the honorable member for Angas, in his interesting speech, that the development of social justice was exceedingly slow, and that it was a matter for congratulation that, at least, it was sure. 1 do not propose to follow the lines of the honorable member for Angas, who gave us what I might call a very interesting lecture on this subject. Indeed, I almost felt myself back again in the less congenial atmosphere of the lecture-room when I heard him developing the doctrine of common employment, volenti non fit injuria and so forth. It is worth remarking that this Workman’s Compensation Bill, upon which I heartily congratulate the Government, represents a very interesting and important evolution of thought, and the improved attitude of men towards their fellowmen in the industrial world. It is evolved out of the spirit of freedom of contract - a freedom of contract which represented no freedom at all, but which empowered a man who had no choice but to sell his labour, by virtue of his necessities, to an employer who could control his employment, his pay, and, in substance, his very life. That is the freedom of contract out of which this measure directly arises. Another phase is that class of legislation which very rightly limits the power of the workman to put himself in a position where he may be exploited by those to whom has been given the power -I do not say always the will - to exploit him. We pass on very tardily to that stage where we saw placed upon the Imperial statutebook the Employers Liability Act - an Act which, unfortunately, as has been pointed out during this debate, was hedged about with so many difficulties and technicalities, and was limited in so many ways, as to render it, in a great measure, useless for the purpose for which it was designed. Then, so far as Victoria is concerned, we come to the painful series of efforts which have been made by the State Parliament to place upon the statute-book a Workmen’s Compensation Act. Honorable members have been told in this Chamber to-day that this is not a party question. I have no. desire to make it a party question, in so far as to suggest that any member of the Opposition is opposed to the principle of the Bill. I do not say more than the truth when I say that if it is not a party question here, it has been throughout its long history a class question - a class warfare in which we have always had on the potent side those who have endeavoured, not only to assert their rights, but to maintain them to the disadvantage of those whom they employ. It is to the discredit of this State, which is the most important and picturesque State in the Union -
– The most brutal.
– Those whom the Lord loveth he chasteneth, and although I love this State, I must chastise it, for in this respect it is one of the most backward in the Union.
– In this respect it is one of the most backward communities in the world.
– Although there is not a Labour party in power in the Old Country, the Parliament of Great Britain has, at least, passed a measure on these lines, and has thus set an example which Victoria ought long ago to have followed. I wish to refer, with the indulgence of the House, to the position in this State to-day, because, although, I believe, there is at present a measure before the State Parliament, we do not know what will be its, perhaps, unhappy fate before it is finally dealt with. I wish to refer to the existing position as to the liability of an employer to his employe in respect of compensation or damages. It is very shortly summed up in the Victorian Employers and Employes Act of 1890. I ask the House to note the circumstances under which an employe, under the Victorian law, may obtain compensation for accidents suffered in carrying out the work of his employer, and to note the limitations and the restrictions that are placed on that right. It is provided that -
Where, after the commencement of this Act, personal injury is caused to a workman -
I do not expect honorable members to follow the legal significance of those words. It is sufficient to say that it is our bitter experience in Victoria that almost every line of those sub-sections is fraught with difficulties and filled with dangerous pitfalls to the workman who tries, under them, to prosecute a claim in the Courts. They are, moreover, subject to these limitations -
A workman shall not be entitled, under this part of this Act, to any right of compensation or remedy against the employer in any of the following cases (that is to say) : -
Under sub-section r of the last preceding section, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, r of seme person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.
An employe may be injured while carrying out the work of his employer, but he cannot recover compensation where the defect in the machinery or plant had not been discovered owing to the negligence of the employer or an employed Again -
Under sub-section 4 of the last preceding section, unless the injuries resulted from some impropriety or defect in the rules, by-laws, or instructions therein mentioned– a very difficult matter to prove, and, finally - in any case where the workman knew of the defect or negligence which caused hil injury, and failed within a reasonable time to give, or cause to be given, information thereof.
Thus a workman may know of a defect, and, because he fails to give information of it, he loses his right to sue. That is a fairly common occurrence. A workman who knows of a defect abstains from making any complaint, because he recognises that it will probably result in his dismissal. The Bill has my hearty approval, because it is admeasure which is designed to grant compensation to injured workmen free from those legal difficulties and pitfalls of which we have had experience under Victorian legislation, and notably in respect of the provision for giving notice. The Bill under consideration is exceedingly liberal in that regard. The provision in respect of giving notice under the Victorian law reads -
An action for the recovery under this part of this Act of compensation for an injury shall not be maintainable unless notice in writing that injury has been sustained is given within three months, and the action is commenced within sis months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death. Provided always that, in case of death, the want of such notice shall be no bar to the maintenance of ‘ such action if the Judge shall be of opinion that there was reasonable excuse for wont of such notice.
In my view, it is wrong to embody in a Statute an arbitrary provision as to notice, which absolutely bars the possibility of a person recovering compensation unless he gives notice within the prescribed time. Many cases have been lost through an informal notice or allowing that limited time to pass by - notably under the Railways Act. In the case of our Local Government Acts, the notice is very much shorter. Although in . this Bill provision is made for giving notice, a very wise discretion is allowed so as to make it almost impossible for any person injured to lose his right merely because he has not given formal notice in duetime.
– Employers avail themselves of technicalities to defeat the ends of justice.
– Possibly. The burden of proof will have to be thrown, not on the workmen, but on somebody else. I do not wholly agree with the honorable member for Hindmarsh when he says that the Courts decide against the interests of the workers. We have to bear in mind that the measures upon which our Courts adjudicate are nearly always passed in an atmosphere of party politics. When . our Judges come to determine the rights of individuals, they are necessarily bound by the strict letter of the law. I hope” I shall never advocate that they shall go outside the strict letter of the law except in cases where, as in our Conciliation and Arbitration Act, they are empowered to do so.
– The honorable member thinks that Parliament ia more to blame than are our- Judges?
– Perhaps the honorable member has put the matter more succinctly than I could have done. 1 did not like to put it bo bluntly. Where compensation under a Bill of this description is payable, subject to conditions and exceptions, the danger is always present - - seeing that the nature of accidents varies so much - that some accidents may fall outside its provisions. That is one of the reasons why so many of these cases fail when they come up for determination by the Courts. Any other remarks which I may have to make upon the Bill will be reserved for its Committee stage. 1 congratulate the Government upon its introduction. Whatever pious desires other Ministries may have had in respect -to its subjectmatter, it will .stand to the credit of the Government that in this Bill they have crystallized their own views, and have placed the measure upon our statute-book.
Question resolved in the affirmative.
Bill read a second time and considered in Committee pro forma.
House adjourned at 9.55 p.m.
Cite as: Australia, House of Representatives, Debates, 29 October 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19121029_reps_4_67/>.