4th Parliament · 3rd Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
page 4836
– I wish to know from the Prime Minister whether it is the intention of the Government to introduce an Inter-State Commission Bill this session?
– We have that in contemplation.
page 4836
Lands Ordinance - Development Scheme
– The Prime Minister has stated that the Northern Territory Lands Ordinance is to be laid before the House before the end of this month. I wish to know, therefore, when we shall have an opportunity to consider it. If a new Ordinance is to be issued, will it be published in time to give us an opportunity to study it before any discussion takes place?
– The Minister of External Affairs says that it will be ready in a day or two.
asked the Minister of External Affairs, upon notice -
Whether, in view of the fact that it is most important to Australia to have the empty spaces of the Northern Territory settled, he will fix an approximate date when he will announce a full scheme of development for that Territory?
– The answer to the honorable member’s question is -
In view of the many difficulties experienced in carrying out works already provided for, it would be unwise at present to lay down any extensive scheme of’ public works, but at the beginning of the year I expect to receive full reports from the Administrator and the Lands Classification Board, giving the result of their experience during the current year, which will enable general plans to be framed.
page 4827
Telegraph Operators’ Increments - Overtime: Sydney Telephone Test Room - Casterton-Mount Gambier Telephone
asked the PostmasterGeneral, upon notice -
– Inquiries are being made and the desired information will be furnished as early as possible.
asked the PostmasterGeneral, upon notice -
Mr. THOMAS (for Mr. Frazer).The Public Service Commissioner has furnished the following information -
asked “the PostmasterGeneral, upon notice -
Mr. THOMAS (for Mr. Frazer).Inquiries are being made, and the desired information will be furnished as early as possible.
page 4827
In Committee (Consideration resumed from 29th October, vide page 4785).
Clauses 1 and 2 agreed to.
Clause 3 -
In this Act unless the contrary intention appears - “ Member of a family” means wife or bus- band, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister; “ Workman “ means any person who has entered into or works under a contract of service or apprenticeship with the Commonwealth, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing, but does not include -
any person employed otherwise than by way of manual labour whose remuneration exceeds Five hundred pounds a year; or
an outworker; or
any member of the Naval or Military Forces of the Commonwealth.
.- Before the Bill leaves the Committee, I wish to congratulate the Government upon its introduction. It recognises a principle which is now being recognised in most parts of the Empire, and no opposition will be offered to it from this side of the Chamber, because in passing it this Parliament will be only coming into line with other British “Parliaments. But although the Bill is satisfactory, as far as it goes, there is an omission from it.
– We are dealing now merely with the definitions.
– I submit that they cover the whole scope of the measure. The omission to which I refer is the lack of a provision for establishing and maintaining a fund out of which to meet the claim of workmen who may be injured.
– Perhaps the honorable member could say what he wishes to say on clause 4, which deals with the compensation of injuries. .
– If you, sir, think that the matter should be discussed on clause 4, I shall postpone my remarks.
– I prefer that that should be done.
.- In this clause “ workman “ is defined as meaning “ any person who has entered into or works under a contract of service or apprenticeship with the Commonwealth.” So far as manual labour is concerned there is no doubt that there would be a contract of service - not necessarily a written contract, but a contract of service. But I have a doubt as to whether there is a contract of service in connexion with men engaged in clerical work. As a matter of fact, they are engaged under the terms of an Act of Parliament.
– That would be a statutory contract.
– If the honorable member can show that it would be a statutory contract he will remove the doubt I have in my mind. Both ..ie conditions and the duration of service are prescribed by the Act. It is not a contract in the sense in which contracts are entered into between private employers and employes. The definition is probably all right, but I thought it better to direct the attention of the Prime Minister to the point so that he could get the advice of the Law Department. If it is held that, technically, there is no contract of service, the whole principle of compensation will break down, so far as those engaged in clerical or purely manual labour are concerned. Where there is a Statute it is not a contract; it is really an enactment declaring what the position of the employ^ is. The honorable member for Darling Downs has mentioned that it has been decided in some case in relation to some state of facts ; probably he is re ferring to a State case. I think that that is so. An engagement is, in effect, a contract as regards rights.
– You wish me to ascertain whether an officer appointed under a Statute has a right to compensation under the law ?
– Yes, really as to whether the word contract covers such cases. There is no doubt that the persons have all the advantages of a contract. When it becomes a question of sueing for salaries, or what are known as rights, such as those preserved under the Constitution, these matters, subject to the Executive giving the necessary technical permission are as substantial in their benefits as if secured by contract. I do know cases in which the technical defence has been raised - in, for instance, a claim against the - Commonwealth which did not mature - that there was no contract and no appropriation of a salary. I am satisfied with drawing attention to the matter so as to avoid any possible ambiguity.
.-! should like to hear an explanation from the Prime Minister in regard to the definition, of “ workman “ because, unless it is meant, to exclude some persons who are employed by the Commonwealth, I cannot see areason for the definition. What necessityis there to say - “ Workman “ means any person who has entered into or works under a contract of service..
There may be men working for the Com** monwealth who do not come under thecategory of persons employed under a con tract of service.
– Everything is a contract:
– If that be the case, what necessity is there to say so?
– Because, in law, you have to say what a term means. Otherwise a person coming along without any authority to work would be included.
– Why can we not say that a workman is a person who is employed by the Commonwealth instead of using a long rigmarole? This definition appears to imply that there are some persons who are not working under a contract. I think it would meet the case if we said- “ Workman “ means any person who is employed by or on behalf of the Commonwealth.
These are the words used in the Arbitration Acts to define an employe1. My suspicion is aroused when I see a studied effort to make a legal definition where it seems that a definition is not required to “ the extent indicated here. Surely this5- more difficult and technical definition must mean something different from the obvious and plain definition of a workman.
– - What does an outworker mean ?
– Some persons are excluded from this definition, and that seems to bear out my contention that there is a difference between a casual worker and a person who is employed under a contract. 1 contend that if an employe* suffers injury in the course of his employment, and it is due to his employment it ought to be a charge on the employer, and there ought to be no exceptions.
– That is the inference.
– What is implied by the definition in the way of exemptions ? There is a straight-out exception. According to paragraph b “ workman “ does not include an outworker. Now, what is an outworker?
– Read the previous definition.
– It is taken from the English Act.
– An outworker is a person who works away from the control of Commonwealth officers.
– The honorable member for Darling tells me that the definitions are based upon experience. I want to get away from some of these old cases, because the Acts which have been enacted for Conservative Governments are not good enough for me.
– - You would not even receive compensation under them?
– I want to see the Acts improved, and the reason for the Labour party’s existence is to improve Conservative Legislation. I have had some experience in these matters, and I cannot see why the obvious definition of workman is not adopted. Why should we adopt a roundabout way of describing a workman which probably may exclude certain persons who are workmen under the Commonwealth, and who ought not to be excluded. I contend that the Commonwealth should be responsible for the injuries sustained by any persons whom it employs as well as By persons who are under engagement to the Commonwealth for carrying out public works.
– I think that it would be very unwise to eliminate the phrase to which the honorable member for Cook objects, because it has been put in to extend the meaning. It would be a mistake to use the words “ only those who are expressly -employed in the service of the Commonwealth.” What an implied contract means, in effect, is that if a person has rendered service to the Commonwealth, and it takes advantage of his service, he becomes by implication an employ^, and is entitled to his rights. The phrase to which the honorable member for Cook objects occurs in the English Act of 1906. That Act applies whether the labour be manual, clerical, or otherwise, and whether the contract be express or implied, or oral or in writing; and the definition in the Bill is taken from that Act. The honorable member for Angas raised the question whether, although the Bill is intended to cover the clerical division, the wording does cover that division, seeing they are employed under statutory authority. This, of course, turns on the point whether a person in the employ ot the Commonwealth is a workman under contract of service express or implied. He is undoubtedly under statutory employ-‘ ment ; but I suggest that the AttorneyGeneral should consult the case of Bond v. The Commonwealth, reported in Commonwealth Law Reports, Vol. 1. That case turned on the question of rights; and the Chief Justice said -
Now what are the rights of an officer in the Public Service? Are they different from the rights of any other person who is in the service of another, except so far as a difference is made by Statute? In my opinion, a public servant, like any other servant, is entitled, as against his employer, to receive remuneration for his services at the rate agreed between them, whether the terms of that agreement are to be made out from a Statute, or from a written or verbal agreement, or otherwise. Further, when the rate of remuneration has once been fixed, it is presumed to continue at the same rate so long as the engagement lasts, unless otherwise stipulated by the original agreement or by a fresh agreement (still using that term as potentially including a Statute).
The rights of a public servant, or any other servant, are, in my opinion, in this respect analogous to the rights of any other person under agreement with another.
– This Bill relates to workmen, and “ workman “ is defined as a person under contract of service whether clerical or otherwise.
– Is the Attorney-General satisfied that that covers a statutory appointment ?
– I shall look into the matter.
-It is necessary, I think, that there should ae some definition to control contracting, or otherwise we may find ourselves in a difficulty. This Bill is not for the general public, but only for workmen in the employ of the Commonwealth. I do not suppose there is a great deal of work done on contract now, but, though not probable, it is possible that a succeeding Government might have strong antipathy to carrying out their own works. Such an idea is very much in the air, but whether it will lead to any alteration in the system we cannot, of course, now say. We ought, however, to take effectual steps to protect the workmen who may be employed by a contractor with the Commonwealth Government.
– This is an old trouble, but I think the honorable member will see that the position is covered by clause 6, which deals with all contracting and subcontracting.
– A layman, in order to understand an Act of Parliament, usually looks first at the definition clause; and in the definition clause of this Bill I see no reference to contractors.
– The language of clause 6 is positive.
– If the Prime Minister thinks the ground is covered, I am satisfied.
.- I cannot understand why instead of a definition of “ outworker “ the Bill does not simply declare that it covers all persons employed by the Commonwealth Government under contract or otherwise. The trouble with Acts of Parliament is that they are so crowded with words as to cause endless confusion, in which people are deprived of their rights. I presume that the Parliamentary Draftsman has got so used to this style of work that he cannot get out of the beaten track, and falls back on precedents instead of establishing his own.
– If the honorable member will draft a short clause we will consider it.
– The honorable member may think it very clever to ridicule a member for making a suggestion; but my sole object is to make this Bill so clear as to be understood by any ordinary commonsense business man without legal assistance. I hope the Prime Minister will permit this clause to be postponed, in order that some thing which may be more easily understood by the average citizen may be substituted for it.
.- The difficulty in such a matter as this is that, by the adoption of what one might regard as a simple definition, it is possiBle that a great number of people would be left out whom we do not desire to have excluded from the provisions of the Bill.
– We could not have better definitions than are given in the Bill.
– I would ask the honorable member for East Sydney to carefully read the definition of “outworker,” and say whether it includes any persons who should be included in the provisions of this Bill? It is defined to mean -
A person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale, in his own home, or on other premises not under the control or management of the Commonwealth.
If we should include such people as under contract with the Government, we should be logically bound to include the persons concerned in the manufacture of every article purchased by the Commonwealth. The fact is that, where we have no control, we should have no responsibility. Unless workmen are under the control of an authorized agent of the Commonwealth, they cannot be said to be under contract with the Commonwealth. We must, therefore, have a definition of “ outworker “ in order to exclude persons who are not under contract with the Commonwealth. With regard to the point raised by the honorable member for Cook, I think the definition in the clause is so wide that any person who commences work on the oral or written instruction of any one authorized by the Commonwealth will be deemed to be under contract with the Commonwealth.
– Will public servants employed under a Statute be entitled to compensation under this Bill?
– Yes ; I think they will, according to the decision of the Chief Justice, referred to by the honorable member for Darling Downs. The question of the appropriation of the amount necessary for compensation in such cases does not, in my opinion, arise under this Bill.
– That question was raised in a case which will be found reported in volume 5 of the Commonwealth Law Reports..
– I think the Court would hesitate to say what Parliament should do in a matter of the kind; and certainly any Commonwealth Government worth their salt would do what was right in such a matter, irrespective of any Court.
.- Yesterday, when speaking upon this Bill, I raised the question whether adopted children should not be included in the definition of the term “ member of the family.”
– That is a good point. Another suggestion might be made - I do not know why mothers-in-law should be left out of the definition of the term?
– It would be a question of whether she was a “ dependent “ or not?
– I should like to hear the Prime Minister’s reason for suggesting that mothers-in-law should be included.
– Because I have one of the best in the world.
– I think that the reasons for and against the inclusion of mothers-in-law would make very interesting reading. It seems to me that the adopted child of a person injured should be regarded as entitled to some compensation.
– I am prepared to agree to that ; but, perhaps, the adoption should be by some kind of contract.
– I think it would be found that such cases would raise no difficulties. In most instances of the adoption of children, the parties call each other respectively “ son “ or “ daughter,” and “ father “ or “ mother.”
– In many cases, the persons adopting them are the only parents the children have known.
– That is so, and I think adopted children should certainly be included in the definition of members of a family. I move -
That after the word “half-sister,” the words “adopted child” be inserted.
Amendment agreed to.
.- On the question of the appropriation of money, which has been referred to, I wish to refer the Prime Minister to the case of Williamson v. the Commonwealth, volume 5, Commonwealth Law Reports, page 183. The case came before Mr. Justice Higgins, who said -
The defendant has, however, resisted this action on the ground, also, of section 78 of the
Act. Section78 provides that “nothing in this Act shall authorize the expenditure of any greater sum out of the Consolidated Revenue Fund by way of payment of any salary than is from time to time appropriated by the Parliament for the purpose.” This section, however, in no way interferes with the power and the duties of the Court to declare rights and to pronounce judgments, leaving it to Parliament to find money for payment of the judgments against the Crown.
– I do not think it would prevent a claim at law against this Parliament.
– I wish to refer to the exclusion from the benefits of this Bill of the Naval and Military Forces. Perhaps the Prime Minister will say why they should not be included ? I know that in other respects they are excluded from the ordinary Public Service regulations, but I do not know why they should be excluded from the benefits of a measure of this kind ? They are as liable to accidents as are other public servants. That this is admitted to be the case is shown by the fact that special regulations are drawn up to meet the case of accidents to them, but I question whether those regulations are as liberal as the terms proposed in this Bill. The members of the Naval and Militarv Forces should be included under a Bill of this kind, or the regulations at present applying to accidents in their case should, at least, be made as liberal as are the terms proposed in this Bill.
– The suggestion made by the Deputy-Leader of the Opposition, that the regulations providing for compensationto members of the Naval and Military Forces should be made as liberal as are the terms of this Bill, involves a question of policy that may very well be considered. I would not, however, advise the Committee to extend this Bill to members of the Naval and Military Forces. The work for which they are organized is very different from that of an industry. In a general way, we speak of naval and military men being at work when they are engaged in. operations as lively as are those taking place just now in the Balkans. Whilst following their everyday employment in times of peace the men in the Permanent Service are cared for and provided for, and in case of injury are entitled, under the regulations, to fixed rates of payment. Whether the scale of payments under those regulations, in some respects, is not as liberal as the terms of this Bill I am unable to say ; but the scale applying to the officers is certainly more liberal.
– Ten shillings per day is the amount allowed in the case of an officer.
– Where death occurs as the result of injury the accumulated pay runs into an amount which I think would startle Parliament - if there were many cases of the kind. Speaking generally, however, the work of the Naval and Military Forces is quite outside the sphere of industrialism, and I think it is well that we should confine this Bill to workmen who are injured in the service of the Commonwealth during the discharge of ordinary duties.
.- The regulations dealing with the Permanent Naval and Military Forces had to be looked up when the Seamen’s Compensation Bill was under consideration. That Act does not apply to ships in the Naval Service of the Commonwealth. The regulations, which were in existence in 1909, apply to the members of the Permanent Forces, who are retired or discharged on account of wounds or injury received, or diseases contracted while on duty. In that respect they do not cover exactly the field covered by this Bill ; they relate to an absolute break in the employment. The question of what diseases come within the Workmen’s Compensation Act has been the subject of frequent disputes in the English Courts. Doubts having arisen the original Act was extended by the recent amendment so as to cover industrial diseases, gradual affection of the lungs, from inhalation of fumes, and so forth - cases which were held previously by the Court, not to be within the purview of the Act - being brought within it. The compensation payable to naval and military officers is, I think, based on three years’ pay, so that in some cases it would be larger than could be recovered under this Bill. The naval and military regulations provide for greater compensation in some cases than could be secured under this Bill, but they do not apply to as many cases as does this measure.
– Only a few of the higher officers can possibly obtain the larger compensation.
– We should certainly consider what ought to be done. The field covered by this Bill is more extensive than that covered by the Naval and Military regulations the two are not exactly coterminous. Whilst the Naval and Military regulations are more restricted in the area of the benefit of the gift, the maximum benefits may be greater than can be secured under this measure.
– I should be glad if the Prime Minister would adopt the suggestion made by the honorable member for Parramatta in regard to the Naval and Military Forces.
– I do not intend to do so. Members of the Naval and Military Forces are already provided for under the regulations.
– Under the regulations they may make a request, but it is open to the Department to “ turn it’ down.” They have no right of appeal and, in short, no legal right. My desire is that they shall have a legal right. The Defence Department is different from other branches of the Commonwealth Service, inasmuch as if a member of the Forces makes a request and meets with a refusal, he cannot argue out his case, as could an officer in any other Department of the Commonwealth. The. moment a man questioned the decision of his superior officer, he would be held to be guilty practically of insubordination, and judged to be unfit to be in the Service. 1 recognise, with the Prime Minister, that this Bill cannot be made applicable to circumstances such as exist in the Balkans, but no one has suggested that it should be. In times of national calamity, we have all to suffer. It would be practically impossible to provide that every man injured while defending his country should receive certain compensation. But in times of peace many men in the Service do a great deal of ordinary work such as is carried on in the everyday ranks of employment. The Military branch of the Department, for instance, employs farriers to shoe the military horses. If a departmental farrier, whilst attempting to shoe a restive horse, were injured, he ought to be entitled to compensation under this Act, just as any member of the Public Service would be able to secure it. I am trying to distinguish between service done in times of national emergency when we are at war, and the discharge of the ordinary operations of the Department in times of peace.
– A farrier would not be a member of the Permanent Military Forces. He would be working under contract.
– A man within the ranks may work as a farrier.
– Then he is provided for under the regulations.
– We have in the Defence Forces men who are permanently employed as farriers. The president of the o Farriers’ Union in- New South Wales secured an appointment in the military barracks, and was at once told that he would have to leave his union, otherwise he could not be employed. That case, which was brought under my own notice, indicates that men are permanently employed in the Military Forces in this capacity, and men so employed would be excluded from the benefits of this Bill. Many cases could be cited to support the point I wish to make, but if the Prime Minister is determined not to alter the definition, I am afraid that it would be impossible to carry such an amendment as I suggest.
– The position, so far as these men are concerned, can be remedied, if it is necessary to remedy it, by making better provision for them under the regulations.
– My point is that under the regulations the departmental officials have the final word. There is no right of appeal. If that were sufficient there would be no need for this Bill at all. All that would be necessary would -be to say, “ We will have regulations for all Commonwealth Departments, and pay those who are injured according to the regulations.” But this Bill has been brought in to give Commonwealth servants a legal right which did not ‘exist before. The Government recognise that such a legal right is much better than a regulation. Although it appears that there is no chance of securing such an alteration as I desire in the clause, I register my opinion on the matter, and state that if I were able to do anything I should take action on the lines I have suggested.
I have listened to the statements in regard to the definitions of “ workmen “ and “ outworker.” I accept the assurance of the honorable member for Darling Downs that these definitions are wider than the one I suggested, namely, that a workman should be regarded as “ a person employed by or on behalf of the Commonwealth.” That is the Arbitration Act definition. But the honorable mem.ber for Darling Downs has given a great deal of time and study to this matter, and
I am prepared to accept his assurance. I point out, however, that in the definition of “outworker” there is a reference to work which may be done by contract. Reading the definition in conjunction with clause 6, which refers to persons working for contractors, it is rather difficult to determine what persons are excluded. Under subclause 2 of clause 6 a contractor is made liable to pay compensation under this measure “ as if he were included in the expression ‘the Commonwealth.’” But in the definition of outworker persons to whom articles or materials are given to be made up or adapted are excluded from the operation of the Bill. Suppose a contractor undertakes to make 1,000 saddles for the Defence Department. Clause 6 provides that persons employed by that contractor shall have a remedy against him, and not against the Commonwealth, because it is to be assumed that ‘the saddles would be made up in a factory not under the management of the Commonwealth.
– The men would be entitled to compensation in that case, but they would not be if they made up the saddles at home.
– If the Bill stopped there, and provided that the workmen should be excluded if the work were done at home, I could understand it, but the definition of “outworker” includes the words “ or on other premises not under the control or management of the Commonwealth.” An outworker is a person to whom articles are given to be made up iri his own home. For instance, there might be some laundry work to be done in connexion with a Commonwealth establishment. That work would probably be given out to a laundry. If it were done by people in their own homes it would be impossible to follow them there, and provide that they should be covered by this Bill. I hope there will be no conflict between the definition of “ outworker “ and clause 6. We should not say in one part of the Bill that we include certain persons, and in another part insert words excluding them altogether. 0
.- The Prime Minister might consider the question that has been raised in relation to the members of the Naval and Military Forces. It appears to me that if one of our defenders is injured, and has to rely upon regulations, he is not in as good a position as another person who renders service to the Commonwealth. I am sure that honorable members do not desire to place members of the Defence Forces in an inferior position. We might insert a limitation providing that the Bill should only apply to members of the Defence Forces in times of peace.
– In any case they would have to be dealt with by a separate Bill. We could not bring them under this measure.
– Even if they had to be dealt with under a separate Bill we should be taking a step in the right direction by placing them on the same footing as other Commonwealth servants.
– The point raised by the honorable member for Cook is worthy of consideration. The objection taken - that in time of war great destruction might take place, and it would be impossible to measure the extent of the liability - might be met by inserting a provision that the benefits of the Bill should only apply in times and under conditions of peace. The Prime Minister says that the subject would have to be dealt with in a separate measure. That is correct so far as concerns the higher ranks in the Defence Forces. But there are lower grades to whom I assume this Bill would not at present apply. I think steps should be taken to confer the same benefits upon them as the Bill confers upon other Commonwealth servants. The case of the officers might be met by regulations, but the men should be placed under the protection of a Bill of this kind. I fail to see why we should differentiate between the Defence part of our Commonwealth service and the civil portion of it. I can quite understand that in the Defence Department a lot of manual work has to be done, the performance of which involves liability to accident. The persons engaged in that work meet with accidents from time to time, and, under existing conditions, can obtain no redress.
– That is not correct. The officers are most tender in recommending that consideration should be granted to persons who are injured in the course of their employment.
– I was engaged nine months in endeavouring to secure consideration for one man.
– A good deal depends upon the officers. Some officers are prepared to accord liberal treatment to men who are injured in the employ of the
Commonwealth, but others are not. Consequently, the claim for compensation should be one of right. The men employed in the lower grades of our Naval and Military services should, in times of peace, enjoy the same rights in respect of compensation as are enjoyed by the men who are engaged in the lower grades of our civil service. I ask the Prime Minister to consider this point with a view to giving effect to my suggestion. 1 am strongly of opinion that the objections which have been urged to it, on the ground of what may happen under conditions similar to those which now obtain in the Balkans, can be amply met by stipulating that these rights shall be recognised only in time of peace.
I think that the Bill, as drafted, covers the other point which was raised by the honorable member for Cook. The outworker is a person who is not under the direct control of the Department. He may do the work which is given to him in his own home. Should he be a contractor - a saddle manufacturer or a builder of vehicles, for example - an employé under him would be protected by clause 6 of the Bill.
– He may not be a workman.
– But he may be. A great many small contractors, in addition to employing men, actually work themselves. They are not merely supervisors. If a contractor is an employer of labour, his employé can obtain redress against the Government should he sustain injury in his employment, and the Government can enforce its claim against the contractor. Consequently, the objection of the honorable member for Cook is amplymet.
Does the Prime Minister propose to agree to the suggestion that mothers-in-law should participate in the benefits conferred’ by the Bill?
– I quite agree that they should do so, but they should come in asmembers of families.
– I move-
That after the words “ half sister,” just inserted, the words “mother-in-law” be inserted..
.- In the English language “ mother-in-law “ has a rather bad significance, but in the French language the term is belle mère, or beautiful mother. Mv experience of mothers-in-law is that they are well worthy of being termed beautiful mothers, and, therefore I would suggest that the words ” belle mere “ be substituted for the words “ mother-in-law.”
Amendment agreed to.
– I quite admit that under clause 6 an employe in the service of a contractor is secured the advantages conferred by this Bill. But I would point out that, the definition of the term “ workman “ reads -
Any person who has entered into or works under a contract of service or apprenticeship with the Commonwealth.
Take the case of a public work in Victoria which has been let to a contractor, 1 here is no general law in Victoria protecting workmen. Such a man would not be a workman employed by the Commonwealth; he would be the employe of the contractors. It must be remembered that these cases will be dealt with by the magistrates, who, looking at the definition clause, will say that a man who is employed. by some one else cannot be regarded as in the service of the Commonwealth. I should like the opinion of the honorable member for Angas on the point. It is not pleasant to have it said in the Courts that our legislation does not mean what we intend it to mean.
– The point can be raised on Clause 6, perhaps.
– I hope that the Government will consider the advisability of applying the provisions of the measure to the members of our Naval and Military Forces. Apparently the only reason for excluding them is that the Bill is a slavish copy of other legislation. Should it be inconvenient to make it apply to our Naval and Military Forces, another measure should be introduced specially covering them. We have not a standing army, nor an army of conscripts; ours is a citizen army, in which there are a few permanent officers. It is desirable that our soldiers should always be citizens, and subject to the ordinary laws of the community so far as is possible without the endangering of military discipline. Those who bear arms must, of course, be under discipline, but only when under arms. No doubt, the officers are already provided for, but there is not provision for non-commissioned officers and warrant officers. These men run the risk of accidents. Sometimes, for example, a gun bursts, and injures those near to it. Men injured under those circumstances should have a right to compensation; their compensation should in no way depend on the temper of their superior officer, because we know what military men are, especially military men from the Old Country or Europe. Those who are serving in our Army and Navy should be compensated for injuries in the same way as the citizens in our industrial army. Of course, compensation for casualties in actual service is another matter. We should make every man in Australia feel that he is always a citizen, even when he has arms in his hands. If we can do this, we shall render military service more popular. I do not think that it would create a heavy drain on the Treasury if naval and military men were compensated for injuries received in the performance of their duties in times of peace, giving those injured the right to compensation without subjecting them to the risk of having their claims blocked by a superior officer. I hope that 1 the Government will consider the matter.
– I have already said that we shall do so.
– It was interesting to hear the Prime Minister’s reasons for not applying the provisions of the Bill to the Naval and Military Forces, especially in view of the recent discussion on the proposal to provide pensions for them. We are told today that the occupation of a soldier is quite different from that of an ordinary citizen, but the argument used against the pensions proposal was that there was no reason for treating our soldiers differently from, say, wharf-labourers. If the wharf-labourers did not get pensions, why should the soldiers? Now we are providing that wharf-labourers shall be compensated for injuries received in the service of the Commonwealth, and therefore it seems to me that our naval and military men should be similarly compensated.
– Does a wharf-labourer get paid when injured ?
– Yes, he gets paid. T withdraw the words “ wharf labourer “ and substitute the words “ a labourer in the employ of the Commonwealth.”
– Even his pay does not go on.
– Under the Bill his pay is to go on.
– Or he is to get compensation.
– Yes. The soldier is not so liberally treated.
– His pay goes on all the time if he is injured.
– A citizen soldier’s pay is a mere nothing. It is, I think, about 4s. a day.
– It goes on all the time.
– While he is in camp.
– He is housed and cared for, too.
– 1 am talking about the Military Forces. The right honorable gentleman is talking about a few of them, but I am talking about the whole. In my electorate, for instance, a man got crippled in his leg, about four years ago, and has not been able fo do a stroke of work since, nor will he be able to do any more hard work. He is a militia man. He has had certain favours from the Department. I am not saying that he has not been favorably treated under the regulations, but he has not been treated so well as men will be treated under this Bill. That is the point. I hope that if the Prime Minister will insist that members of the Military Forces are different from members of the Civil Force; if their conditions differentiate them from those to whom this Bill will apply, he will apply that logic and treat them specially under some other form of legislation-
– I have already said that. I will bring in a special Bill dealing with the case of these men.
– That will satisfy me, and I hope that it will satisfy all the right honorable gentleman’s supporters, and that we shall hear no more of the argument we have heard before to-day.
– I find it is good to do one thing at a time, and to do it well.
– I wish to point out to the Treasurer that the compensation which the military receive at present is entirely at the discretion oof a Board. There is no absolute claim of any kind which can be put forward by a soldier or an officer. The regulation says the compensation may be recommended by a Board appointed to inquire into the case, and that it can only be recommended if the man has not contributed by any default of his own.
There are two disabilities. First, there is the discretion of a Board which may or may not recommend compensation; and second, the Board may not recommend compensation if the injury is due to any default of the applicant.
– That amounts to contributory negligence.
– It includes the doctrine of contributory negligence, and- a great deal more. Under the regulations a man has absolutely no claim for compensation. It rests in the discretion of the Boards appointed from time to time to review cases. What is the minimum benefit provided? The Treasurer talked just now as if there were fortunes given out.
Sums not exceeding 10s. per diem to an officer, and 6s. per diem to a warrant officer, noncommissioned officer, or man of the militia or volunteer military forces.
These sums may be recommended for payment for a period not exceeding six months.
– And he is housed and kept.
– Net a militia man.
– Are you speaking of a militia man?
– I am speaking of the Citizen Force. This regulation applies to the citizen and other forces.
– The honorable member can see that the matter is full of complications.
– These men are not treated fairly. At least they ought to be treated as well as those who have material prospects in life, which soldiershave not.
– It is a little better than the compensation to be paid under this Bill, I think.
– In some cases it may be a little better as regards the amount.
– It is a great deal better.
– Can the honorable member show me in what way 6s. per day is better than the provision in this Bill?
– Six shillings per day is equal to 50 per cent.
– “Under the regulations, a man gets that compensation for six months, while in the case of an officer who may be in receipt of ,£500 or £600 a year, and engaged in private business, Os. r per day is the extent of the compensation for any injuries which he may receive. Moreover, the regulations provide that in case a man is totally incapacitated, or in case of death, he or his representative is entitled to only the amount which he would have received in the course of three years while engaged in that arm of the service. In the case of a militia officer that means practically nothing, because his whole pay now is, I think, £$6 a year, and under the new arrangement the whole pay of a militia man is about 4s. per day for sixteen days in the’ year. If an accident happened to a soldier, or if a soldier were killed, he or his representative would have to get a grant over and above anything provided in the regulation.
– We should not interpret the regulations in that way.
– That is how they read, though a great deal more is done. The Department is much better than the regulations.
– Who made them?
– I do not know. I suppose that they have been in the process of making for many years.
– If the regulations are good you made them ; if they are not good we made them.
– Whoever made the regulations, the right honorable gentleman has been responsible for them for nearly three years. However, I am satisfied to hear from him that the soldier is to get a look in in connexion with this general question of compensation.
– I have always been in favour of compensation for injuries and death.
– In view of that statement by the right honorable gentleman, I shall be prepared to allow the clause to go, relying upon his promise that the whole matter will be reviewed as it affects the soldier. It must be admitted that our soldiers and sailors are being somewhat neglected so far as compensation for injuries is concerned ; and if the Prime Minister can alter the position in any way he will be doing only simple justice.
.- I am sorry that the honorable members for Calare and Hindmarsh are not present, because I desired to congratulate them on being “ in the same boat “ as myself in regard to this Bill. Under all the circumstances, I have as much right to charge them with being strong opponents of the measure as tHey had yesterday to lay a similar charge against me, simply because I took some exception to “the provisions. Both those honorable members have spoken strongly against the omission of the Naval and Military Forces. This definition clause is, to .my mind, unsatisfactory right through. In the first paragraph it is de clared that “ Commonwealth “ includes any territory “ which is part of the Commonwealth.” This seems to me quite superfluous, because it is obvious that any territory that was not a part of the Commonwealth could not be included.
– I do not think that the honorable member is legally right there.
– It is intended to exclude Papua.
– Well, we shall leave that point for a time. It seems hardly fair, I think, to exclude outworkers from the provisions of the Bill. The honorable member for Hindmarsh yesterday described the Employers’ Liability Act as a fraud and a farce, because, while men must be compensated for injuries received in the factory, they have no claim if the injuries are received when they are sent to work in a private house. It appears to me that the Government, by this Bill, are taking up a similar position.
– There is no analogy.
– There is very little difference. Work may be given by the Commonwealth to private persons in their own home, or other places not under the control of the .Commonwealth, and, in case of injury, such persons are to receive no compensation.
– They control the conditions under which they work.
– I am afraid that great hardship may result from the exclusion of outworkers. I am pleased to hear from the Prime Minister that provision is to be made in a Bill for members of the Defence Forces, equivalent, at all events, to that afforded by this measure.
– In my opinion, the Defence Forces could not be included in this Bill.
– I think the Military Forces might well have been included, at all events so far as the lower grades are concerned. The officers, of course, would be affected by the definition, so far as the salaries earned are concerned.
– In the Permanent Forces, in case of injury, the ‘pay runs on, and hospital attendance is provided free.
– As to the Citizen Forces, the compensation rests with a Military Board appointed for the purpose.
– As Treasurer, I think that the Board has been very tender.
– I have known cases where citizen soldiers have received injuries in camp, and have received practically no compensation.
– I have been knocked over myself, and I did not ask for anything.
– There are those who have desired compensation, but have not been able to obtain it. However, I am satisfied to take the word of the Prime Minister that something will be done. Of course, there is no time to do anything this session.
– We never know.
– This means that nothing will be done to improve the conditions of the soldiers in this respect for, at all events, another year.
– The soldiers are provided for, though, perhaps, not so effectively as they might be.
– Why should they not be provided for as effectively as are the civil employes in the Commonwealth.
Clause, as amended, agreed to.
Clause 4 - (1.) If personal injury by accident arising out of and in the course of his employment is caused to a workman in the service of the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act. (2.) Provided that-
.- The Government are to be congratulated upon the introduction of this measure, the principle of which has been accepted, not only in Great Britain, but in many of the outlying Dominions. I am in accord with the Bill, so far as it goes ; but it would be improved, I think, if provision were made to build up an insurance fund of our own out of which claims could be met , as they became due. This would be better than relying on the revenue from year to year.
– Let us hear the honorable member’s scheme.
– I am not in charge of the Bill, and I am not prepared with a detailed scheme, which would, I suppose, require the services of an actuary. The Government might, however, put so tnuch aside each year, equivalent to that which would probably be required to meet premiums they would have to pay if they insured their workmen with an ordinary insurance company, and in this way there could be created a fund to be added to by proper investment.
– Would the honorable member make the scheme a contributory one?
– No; I would put the Commonwealth in the same position as that of a private employer, and would not ask the workman to contribute anything. I do not see why the Commonwealth should not regard itself somewhat in the light of a private employer, who has to insure his workmen against accident or death.
– Why?
– Because a private employer, in the course of a contract, might have so many claims as to ruin him.
– Exactly ; but is the Commonwealth in the same position?
– I do not, for one moment, presume that the Commonwealth would be ruined, because we could meet all claims out of general revenue, or find the money in some way. But it would be better business, and more satisfactory, if we provided a fund in the way I have suggested. I said that I am pleased that the Government propose to give effect to this principle.
– I wish to hear the honorable member on the question of insurance.
– I thought I had said a little about it. I think I have indicated a feasible proposal. I do not see why the Commonwealth Government should not establish a fund from which to pay compensation for injuries to Commonwealth servants. That is the method adopted by shipping and other private companies; but I do not say that that is the only way in which the matter might be dealt with.
– Why not have a Commonwealth Insurance Department?
– If we had such a Department, the matter might be dealt with through that Department. I say that some provision for insurance would be an improvement upon this measure. I agree that, so far as it- goes, it is a good measure, but I believe that it could be improved in the manner I suggest. I hope that the Prime Minister will consider whether some scheme of insurance mightnot be included in the Bill.
– I should be in agreement with the honorable member if he could show me that what he proposes would be better than what the Government propose.
– If such a fund were established, the moneys to the credit of’ it might be more than sufficient to meet the claims made upon it for compensation up to a certain time. The fund would thus accumulate, and it might be very useful to have a substantial amount to fall back upon if, in any particular year, as the result of some catastrophe, we had to meet a great number of claims. We are pledged now to very heavy expenditure upon public works, and while we are at present employing about 20,000 casual hands, when the works to which we are committed are in full swing, we shall be employing a great many more. If, in connexion with these works, a great many accidents occurred in a particular year, it would be well to have made some provision for an unusual number of claims for compensation by the establishment of an insurance fund such as I suggest while we are in a position to build up a fund. I do not stress the matter, but some scheme of the kind is worthy of serious consideration by the Government. I have said that the Opposition are in favour of this Bill. When the Fusion Government were in power, they passed a Seamen’s Compensation Act, embodying the humane principle which underlies this measure. If the partyhad been returned to power, or a Liberal Government had occupied the Treasury benches, instead of our honorable friends opposite, there is no doubt that a measure similar to this would have been introduced by them. I mention this to show that honorable members on both sides are in favour of progressive and humane legislation of this kind. The Government have adopted the principle of preference to unionists in the employment of casual employes. I have already condemned that principle many times in this House, but, bad as it may be in other respects, it is open to a further objection in connexion with this measure, since it may be the means of depriving some of our citizens of compensation for injuries, which, but for the application of this principle of preference to unionists, they would probably enjoy had they been allowed to enter the service of the Commonwealth. I do not desire to make a second-reading speech but have taken this opportunity of putting my views generally before the Committee.
– Like the honorable member who has just resumed his seat, I did not avail myself of the opportunity to speak on the second reading of this Bill. I do not pro pose to make a second-reading speech now, but I wish to say that the Bill has my entire and hearty approval. Unlike the honorable member for Wilmot, I think the Government have proceeded on the safest and best lines in the Bill they have submitted. It islimited to the public servants.
– The honorable member objected very strongly to the military being left out, and now he says that the Bill hashis entire approval.
– I regard theMilitary Forces as part and parcel of the Public Service of the Commonwealth. I donot regard them as in the same position asworkers in private employment, and the Prime Minister has intimated that they areto be dealt with under a separate measure. The object of this Bill is to provide for compensation in the case of injuries received by members of the Public Service. I have from time to time interested myself in some cases of thekind, particularly in connexion with thetelegraph construction workers of the Postal Department, who are very liable to accidents. I have been struck by the inequality of treatment and the difficulty which men. have in getting fair consideration for their claims. All kinds of departmental objections have been raised. It was practically- laid down as a principle that in the case cf every accident the person who suffered had contributed to the accident. On thatground attempts have been made on various, occasions to avoid the payment of any compensation. Officers have viewed the matter from different stand-points. Some, whobelieve in the liberal treatment of publicservants, made recommendations accordingly, whilst others, who do not believe that compensation should be paid in such cases,, adopted a narrow and restricted view.. When they came into power the present Government altered that state of affairswithout waiting for the introduction of thelegislation they now propose, by applyingto public servants the provisions of the workmen’s compensation legislation applicable to people employed outside Government departments. The allowances madein respect of accidents of this character during the last few years have been more liberal and more in accordance with some well-defined policy than was previously the case. The Government did not wait for legislation to bring that system into force, and they are following up their action by introducing this Bill, which meets with my” hearty approval so far as it goes. I should like to see it extended to the industrial side of the Defence Department in times of peace, but the Prime Minister thinks that that matter should, be dealt with in a separate measure. I dp not care in what measure it is embodied as long as the requisite provision for men in the Defence Department is made.
– If it were made in this Bill the honorable member would know that the men would receive it. If it is not, no one can say when they will get it.
– I am satisfied that the Prime Minister will move to secure it for them. I am pleased to know that the honorable member for Wilmot is in accord with the principle of this legislation, although he disagrees with its method of application. When I read in yesterday’s newspapers a report of an address on “Australian Character,” by the honorable member for Flinders, I was rather disposed to think that such legislation as this would meet with far more opposition than honorable members opposite have displayed so far towards it.
– The honorable member has not known any fair legislation to be opposed by the Opposition.
– I have known all progressive legislation to be opposed until it became so popular that opposition ceased to be advisable, and I have always found that opposition coming from the other side of the House. The honorable member for Flinders, addressing a meeting held under the auspices of the Australian Women’s National League, under the presidency of Mrs. F. G. Hughes, said that there was evidence of certain faults of character on the part of the young Australian.
– What bearing has that on the clause?
– I wish to show that it has a bearing on legislation of this character. The honorable member for Flinders, referring to these faults of character, said -
One of them, and not the least, was the imperfectly developed sense of individual responsibility …. A mental attitude was creeping in which it was difficult to define. The main characteristic was that nothing seemed very good, or nothing seemed very bad - nothing seemed very right or nothing seemed very wrong. It was a kind of moral ansemia, one of the symptoms of which was that it was somebody else’s business to look after things.
He went on to state that -
If too easy and too luxurious conditions were created, the dry rot of sentimentalism would appear. There was no process known to mau by which human nature could be powellised.
He then proceeded to explain what in his opinion had given rise to this state of affairs. He said -
The Commonwealth Parliament had introduced the old-age pension system. It was necessary to make some provision for old people, but it would be a disastrous thing if a permanent system were to be introduced in which boys and girls were to grow up iu the belief that whether thrifty or thriftless, careful or careless, a benevolent Government would look after their old age for them. The Labour party professed to be opposed to pauperising the people -
– Does the honorable member think that this has anything to do with the question before the Chair?
– I think it has a bearing on the line of argument followed by the honorable member for Wilmot
– This a little bit of electioneering on the part of the honorable member.
– No; the honorable member for Flinders takes up the position that the evidence of weakness in Australian character is to be found-
– This clause has nothing to do with any weakness of Australian character. The honorable member must not proceed on the lines he is now following.
– If the Chairman rules me out of order I must submit to his ruling.
– If the honorable member persists in his quotation we shall have to reply.
– There is no danger of the Opposition replying to that statement.
– The honorable member will have an opportunity to reply if he desires to do so. While the honorable member for Wilmot is not as specific as is the honorable member for Flinders as to the principle that ought to be applied, he urges that we should adopt a system of compulsory insurance.
– We have already indorsed the principle of the Act bv passing the second reading.
– And I am quite in accord with it; but it is possible that honorable members opposite will say later on that the payment of old-age pensions and the granting of compensation to- injured workmen should form part of a contributory system of insurance, and that the benefits of that system should be enjoyed only by those who contributed to it. I am utterly opposed to that principle, whether it be espoused by the honorable member for Wilmot, as he seemed to espouse it, or definitely supported by the honorable member for Flinders. The Government are proceeding on right lines in making the compensation payable under this Bill a direct charge upon the Consolidated Revenue. If honorable members only look into the conditions obtaining they will, see that the remuneration of a large number of these officers is on such a low scale that they must deny themselves many of what may reasonably be called the necessaries of life in order to live within their incomes. They are left with a very small margin to provide against accidents. -The responsibility must, therefore, rest somewhere ; and I maintain that it is being very properly shouldered by the Government. The fact that an insurance fund is not introduced does not strike me as being a weakness at all. Rather does it seem to be the strength of the measure that it works in the direction of fair treatment, justice, and equitable dealing. I submit that no person in his senses would take unnecessary risks in the matter of injury, or in a direction that might lead to loss of life. Injuries are often sustained in the ordinary discharge of duty. They are encountered by officers by acting under instructions which the person injured would in many cases not follow if left to choose for himself. That being so the Government should make provision for such cases where invalidity occurs, and where death happens should make provision for those dependent upon the deceased. The lines laid down in the measure are safe and equitable, and can be supported from every stand-point.
– It is very much better that the questions dealt with in this Bill should be handled on a general principle of legislation rather than that we should leave them to the action of individual Ministers. There is no doubt that the Bill will affect a very large number of persons in’ the near future. I find that whilst in 1901, according to the Public Service Commissioner’s report, the temporary employes numbered only 675 ; last year they had reached the number of 3,867. The number of “ exempts “ also increased from 5,299 to 15,472. Out of a total number of 34,459 public servants employed by the Commonwealth about 19,000 are temporary employes who are appointed by Ministers, rather than through the action of the Public Service Commissioner. It is to such persons that this Bill will chiefly apply. With the public works now contemplated or in progress it is evident that the number of persons who will be affected by the Bill must be increased enormously. Some thousands of men must be employed on Commonwealth railway works. Thousands must be employed on Federal Capital works. It is probable that the number of 19,000 temporary employes will be expanded to 40,000 or 50,000 before long.
– That kind of work cannot be carried on by permanent officers.
– It cannot; but it has to be remembered that that is the class of workers to whom this Bill will particularly apply. Is the measure intended for one class of the community, or is it not? I take it that the Commonwealth Government are resolved that no men shall be employed on public works unless they are members of unions. Consequently none but unionists can be affected by the Bill.
– Does not the honorable member think that we are getting tired of that subject?
– If the honorable member is afraid of it now, I do not know how he will “face the music” in a few months. We should consider that question when we are passing legislation of this character.
– The honorable member is not in order in making any reference to preference to unionists.
– This Bill deals absolutely with the whole principle of preference to unionists.
– The clause before the Committee deals with compensation to workmen who may be injured, and the honorable member must confine his observations to that subject.
– The workmen for whom this Bill is intended are employes of the Commonwealth. The Government tell us that under no circumstances will men be employed on Commonwealth works unless they are unionists.
– The honorable member is not in order in discussing that subject.
– I accept your ruling, sir’, but I cannot help thinking that we ought to consider the class of persons for whom this Bill is intended to applyIt deals with workers appointed by the Government, rather than with those appointed by the Public Service Commissioner. The “exempt “ officers are an exceedingly small percentage compared with the army of men that will have to be employed upon the public works that have been authorized. I feel sure that I am quite within reason when I say that the public works being undertaken by the Commonwealth will increase the 19,000 temporary employes to, at least, 40,000 or 50,000. I think, with all due deference to you, that we ought to have permission to discuss any provision relating to these workers ; and if the policy of the majority of honorable members is that the only men who shall come under this Bill are those-
– The honorable member is trying to evade my ruling.
– Then I will not press the point any further.
– I move -
That paragraph (a) of sub-clause a be left out.
The intention of the Committee is, I feel sure, to make this Bill as workable as possible, and to avoid doing any injustice to any individual who has the privilege of coming under it. I submit this amendment as the result of long experience of the administration of the sick funds of friendly societies. The rules of many of these organizations provide that members shall not receive less than two days’ sick pay. This provision has been found to operate injuriously, inasmuch as slight accidents, which have been neglected by individuals, have often led to very serious results. Under this Bill, if a workman sustains a slight injury during the course of his employment he will probably ignore it, because he will know that he will not receive sick pay during the first week that he is absent from his work. In the case of friendly societies, this practice has frequently led to protracted illnesses, and in some instances to death. Only the other day the Sydney newspapers contained the report of an inquest upon a carter who was employed at a wool store in South Sydney, and who had trodden upon a nail, which had pierced his foot. He neglected the wound, and three or four days later remarked to his wife that he experienced a choking sensation. She replied that he had better consult a doctor. His answer was that if he ceased work to do so he would receive no compensation, and therefore he decided to continue in his employment till the end of the week. Within seven days that man died from blood poisoning. Thus, whilst on the one hand the provision which I desire to see excised might prevent malingering, on the other it might be productive of far more serious results. The experience of friendly societies is that many long illnesses would be prevented, and a big drain upon their funds avoided, if sick pay were granted to their members even when they suffered only slight injuries. I know that this provision is included in every Workmen’s Compensation Act. But that fact does not render it sacred. Under the Bill a workman who meets with an accident will not receive any compensation during the first week that he is incapacitated. Yet he will have to pay his rent and maintain his family during that period just as he will have to do in the second or third week of his illness.
– He will receive compensation during the first week that he is incapacitated.
– The schedule sets out that he will not. Only a moment’s reflection is required to enable any reasonable individual to arrive at the same conclusion as that at which I have arrived- The percentage of malingerers in our Public Service is so small as to render them unworthy of consideration. I consider that it would be an error of judgment on our part to retain the clause in its present form. The position of the Commonwealth is not at all analogous to. that of insurance companies which are conducted upon commercial lines. Those institutions are run for the purposes of profit, and their directors are frequently devoid of all sense of justice. There is no necessity for the Government to avail themselves of a provision to prevent a workman in the employ of the Commonwealth from obtaining sick pay during the first week of his illness. I have spoken to the Prime Minister on the matter, and he is of opinion that the period mentioned might well be reduced. The retention of the clause will leave an opening for injustice to be done. This measure is, of course, a copy of other legislation, it being customary when a Bill is being drafted to ascertain what other Parliaments have done, and to follow their lead, but I should think that the provision to which I have drawn attention must have been copied inadvertently. I hope that the Government will consent to its elimination.
.- I agree with the honorable member for East Sydney that this provision should be struck out, or at least that some reasons for its retention should be given other than the bald statement that we have had of its intention. If a man who is injured is not to get compensation, if not disabled for a week, why should he get compensation if disabled for any longer time? The Bill covers, not merely manual workers, but also clerical employe’s, and a man may be severely injured without being totally disabled from work for a week. A clerical worker who loses a finger by accident may not be totally disabled for a week.
– He may be disabled for six weeks.
– At any rate, a person who has suffered a serious accident may not be totally incapacitated for a whole week, and I see no reason why he should therefore have to forego compensation. The honorable member for East Sydney has suggested that the provision has been inserted as a safeguard against malingering, but I do not think that that is a sufficient justification of it. Indeed, I cannot see the application of the argument at all.
.- I shall support the amendment. The onus of citing instances in which persons who have been seriously injured have not been totally incapacitated for a week is not on those who oppose this provision, but it is for those who are responsible for it to give good reasons for its acceptance. An exceedingly painful injury may cause only temporary disablement. After having been away for two or three days, the injured person may be able to return to his work again.
– Although he may not have been entirely cured of his injury.
– That is so. He may have merely recovered sufficiently to go on with his work. I do not know why such a person should not be compensated for the time that he has, lost by reason of an accident which was not his fault, and which was a fair charge on the work on which he was engaged. It has been suggested that many of the provisions of this Bill have merely been copied from existing, compensation measures, but we ought to get away from them. None of the compensation Acts in force in Australia was introduced by a Labour Government. As this is the first Labour legislation of its kind, it is important, not only in its bearing on the Commonwealth Service, but also because of the example which is being set to the Parliaments of the States. This measure will be referred to in the State Parliaments, and its presence on the statute-book will afford a strong reason for State legislation equally liberal in its terms.
– What about malingering ?
-There must be safeguards against malingering, but there would be no more malingering in respect to injuries creating incapacity for less than a week than in respect to other injuries. If a man were inclined to malinger, he could plead that his injury would incapacitate him for a fortnight.
– Full wages are not to be paid during absence from work on account pf injury.
– Then malingering will not be very common, because the ordinary working man gets so little that he. could not afford to malinger for the sake of a holiday, when by doing so he would be reducing his pay by one-half. Besides,, a man who claims compensation for injury must be prepared to show that he has been injured, and should his case be suspicious he would be examined by medical experts to determine the extent of his injury, and whether he was absolutely incapacitated.
– It would be very costly to employ a doctor when a man had only scratched his finger.
– A man who had merely scratched his finger would not press a claim for compensation before a judicial tribunal.
Sitting suspended from 1 to 2.30 p.m.
– Owing to pressing business, I had not the pleasure of hearing the arguments advanced by the honorable member for East Sydney. My experience is that a great number of friendly societies, in case of sickness, do not pay for the first three days.
– In the Manchester Unity payment is made from the first day.
– Is that a recent arrangement ?
– It has been so for several years.
– I know there was an alteration made about fifteen years ago.
– There was an alteration made at the very last meeting which the Prime Minister attended at Maryborough.
– However, I am not wedded to the period of a week. In the case of a friendly society a member must “declare on,” and get a doctor’s certificate.
– A member is paid from the day he “ declares on,” but not for the day he declares off.
– I have no objection to providing that a workman shall be paid from the time that he declares or gives notice of the accident, and produces a doc tor’s certificate.
– That is all I ask.
– He has to prove it, and must give notice immediately.
– A workman has to prove the injury, and must givq notice within reasonable time.
– Within six months.
– If a man is injured, and produces a doctor’s certificate within the week, I have no objection to providing that he shall be paid from the time that he makes the notification. Subject to the doctor’s certificate, there will be no limitation. Perhaps the better course would be to recommit the clause.
.- I think there is some misunderstanding in regard to paragraph a of sub-clause 2, which provides that the Commonwealth shall not he liable in respect of any injury which does not disable the workman for, at least, a week, while the first schedule provides that if the incapacity lasts less than two weeks no compensation shall be payable in respect of the first week. This Bill, I take it, is intended to deal only with serious incapacity, and not with trivial accidents. According to Willis, on the Workmen’s Compensation Act of. 1906, p. 36, no compensation is payable under that Act where the injury is trivial, or where the workman has elected to proceed against his employer by action for damages, or where the workman is injured through his own serious and wilful misconduct. Willis goes on to say that the injury must be so serious as to disable the workman for, at least, a week from earning full wages at the work at which he was employed, and that the meaning of the expression “ disability from earning full wages” was explained in the case decided under the original Act, which provided that the period should be limited to a fortnight, instead of a week. The same text-book informs us that under the Act, if the accident is of such a nature that the man is by law entitled during the two weeks immediately following the accident to recover full wages from his master at the work at which he was employed before the accident, then such an accident is not to give rise to a claim by the workman against his master under the Act, but if the master, out of feelings of compassion and generosity, which is, happily, often the case, continues to pay the full wages, though not under legal obligation to do so, that does not bring the case within the meaning of the Act. In cases where a man working for an ordinary private employer receives relatively trivial injury, full wages for the week are, as a rule, paid, and there is no need for compensation ; and the Commonwealth, I think, should be in the same position. Paragraphf of sub-clause 2 provides that where a workman continues in the service of the Commonwealth after the injury, any pay received by him from the Commonwealth shall be deducted from any compensation payable in respect of the same period.
– That is so, but men who are. paid by the day are in a different position.
– This Bill is intended to cover men employed temporarily in casual work ; and if they lose a week’s service on account of an accident, I should like to see them compensated, if they get no” wages.
– Under the Bill such men will not get any compensation.
– I think it would be better to substitute words preserving the rights of the casual employe rather than strike out the sub-clause. I would point out that Bills are very often drafted by men who have the complete object in view, and some of the worst defects of our legislation arise from impromptu drafting on the floor of the House. I think the clause ought to be postponed.
– I am willing to omit the word “ week,” and insert “ day.”
– The Prime Minister has the assistance of a most skilful and competent draftsman, who always endeavours to give full effect to the intentions of this Parliament, and I think he ought to be asked to draw up a provision to meet the object in view.
.- The honorable member for Darling Downs has pointed out the reason for the limitation of a week in the Workmen’s Compensation Act of 1906, namely, that it was not considered worth while to put a man to the trouble of complying with all the formalities in the case of a lesser accident. I believe that in all cases a week’s notice would be given, and, therefore, a week’s wages paid, so that a man would be covered for the period of incapacity. The Workmen’s Compensation Act of 1906 specially excludes casual employes, whereas this Bill does not ; and in England it is a proper provision not to pay compensation to a man whose incapacity does not extend to a week. Ihe limitation in the Bill before us will really deprive casual labourers, in some cases, of the compensation which it is desired to give them, and I call attention to the matter in order that the draftsman may be consulted as to whether it is worth while to draw up a clause. My own opinion is that in such cases compensation might be given by departmental administration - that is, a week’s wages might in cases of genuine injury be paid. I do not think it is worth while to alter a measure in order to meet such a petty difficulty. Let it be understood that every man who is injured, whether a casual employ^ or otherwise, will get a week’s wages in case of incapacity for less than a week.
– What is the position of a man who is paid at the rate of so much per day?
– He would really be a casual labourer within the meaning of the Bill and would be excluded from compensation if his injury did not disable him for at least one week. In England the point with which we are dealing is covered by the fact that a week’s notice has to be given. But under the Bill as it stands, a casual labourer who was disabled for four days Would receive nothing. I agree with the honorable member for East Sydney that this could be overcome by omitting paragraph a, but I think it would be better to provide elsewhere that where a casual labourer is injured he must get at least one week’s pay. That would not oblige him to give a week’s notice, or to go to arbitration.
Amendment, by leave, withdrawn.
– I think that the honorable member has acted wisely in withdrawing his amendment.
– I did so only on the understanding that the Prime Minister would alter the clause.
– My promise to recommit will stand.
– When the Bill is recommitted I think it will be in the interests of the men themselves to allow the clause to remain as it stands. The compensation payable will be equal to only half the wages that the injured person was receiving. If a man would not receive any compensation where his injury did not incapacitate him for at least a week, it seems to me that he would remain at work, perhaps do half his usual quantity of work, and get a full week’s pay. Then, again, if he were away for only a day or two the probabilities are that his pay would not be stopped.
– And he would not have to obtain a doctor’s certificate.
– And he would not have to get a doctor’s certificate, for which- he would have to pay. I think that the men would be in pocket if the clause were left as it stands. I recognise that the honorable member’s intentions are good.
– I have seen too much of what is done in connexion with the ordinary Workmen’s Compensation Act.
– The honorable member is referring to private employment, whereas this Bill relates to Government employment.
Coming to another point, I think that if a man, as the result of injury, is incapacitated for some weeks, his first week’s pay ought not to be deducted.
– It is not to be.
– It is only where he is disabled for less than two weeks that that is to be done.
– If a man is disabled for not less than two weeks, his first week’s pay is to be deducted; if the disablement extends over two weeks, I understand that it is not to be deducted. That is as it ought to be. The clause has been well drafted, and, no doubt, well thought out. I do not think the men would be any; the worse off if we allowed it to remain as it stands.
.- Two possibilities in connexion with this clause are worthy of consideration. In the first place, there is the possibility that if a man, as the result of an injury, were disabled for five days, there would be a great temptation to him to stretch a point with his conscience, and, in order that he might come within the provisions of the Act, stay away from work a little longer than was absolutely necessary. That is not a very important consideration, but it is worthy of attention. Then, again, it is provided by this clause that the Commonwealth shall not be liable to pay compensation in respect of any injury which does not disable a workman, for a period of at least one week, from earning full wages. In this connexion I would point out that a man suffering from shock such as very often happens to those in a railway accident might remain away from his work for a day or two, and, believing that he was better, resume work. Later on the real effect of his misfortune would be felt by him, and his health might be seriously impaired, with the result that morally he would be entitled to substantial recompense. I am not certain whether under the clause as it stands the mere fact that he stayed away from his work for a couple of days, and then went back, would, not disentitle him from obtaining relief afterwards when the real effect of his trouble began to be felt. We often hear of men who. after being in a railway accident, feel well enough to go straight on to work, but who, in the following week perhaps, have to take to their beds and suffer very seriously. I submit this point for the consideration of honorable members, feeling sure that it will receive their sympathetic consideration.
– I understood in withdrawing my amendment that the Prime Minister was prepared to substitute the word “ day “ for the word “ week.”
– If that were done a. man would have to comply with all the procedure of the Act to secure one day’s pay. The honorable member’s object could be secured by a departmental practice.
– I fail to see why a man injured in the service of the Commonwealth and compelled to remain away from work should lose his first week’s pay.
– It is not suggested that he should.
– It certainly is. Many persons who meet with accidents, and who should really take to their beds, remain at work because they cannot afford to lose their wages. The friendly societies at one time refused to grant sick pay to men. who were not disabled from work for more than three days. It was found that, as the result of this rule, men remained at work when they should have been in bed, with the result that they ultimately became so ill that hundreds of pounds were spent in restoring them to health. The friendly societies consequently did away with the rule. We should try to inculcate the belief that even an apparently trivial accident is serious if it affects the human body. I mentioned earlier in the day the case of a man who, whilst working in a wool store, trod on a nail and died shortly afterwards from blood-poisoning. He would not knock off as soon as he met with the accident, because he knew that if he did he would receive no pay.
– I think I can make a suggestion that will overcome the difficulty. If I say that, if the clause remains as it stands, we shall pay to all claimants not less than half the amount due in respect of the first week’s wages, surely the difficulty will be overcome. If we made it a rule that half-pay should be given to the injured person - the payment to be limited by the maximum fixed under the Act - from the time that he proved the accident to have taken place that would do away with the necessity for a whole mass of machinery to deal with a claim in respect of a disablement extending over only one or two days.
– There would have to be a maximum fixed, otherwise a man might be injured to-day, receive a half week’s pay, and then again be injured to-morrow, and receive another half-week’s pay.
– I would strongly urge the Committee to embody in the Bill itself what it thinks ought to be done in these cases. To pass legislation providing that a certain course shall be followed, and at the same time to secure from the Minister who will administer the measure a promise that notwithstanding its provisions he will do certain things, is to engage in something worse than slovenly legislation. There is no continuity of office in respect of the Treasury, and we ought to state clearly and definitely in the Bill itself what a man shall be entitled to claim. There is a, great deal of force in the honorable member for East Sydney’s contention. Friendly societies found that it did not pay to carry out the rule adopted by them some thirty years ago, under which a roan who was unable to follow his work for two or three days was disentitled to draw sick pay. It was found that, the result of this rule was that men remained at work when they should be in bed, and so brought on a more serious illness, which involved the lodges in very heavy expense. If a man is disabled even for a day I fail to see why we should not make good his day’s loss.
– The cost of a doctor’s certificate would be more than the compensation due to him.
– I had hoped that there would be a common- sense procedure and that a doctor’s certificate would not be demanded in respect of a claim for less than a week’s pay. The loss of a week’s pay is a serious matter to many men who have very little in reserve. They prefer, very often, to remain at work rather than lose their wages, with the result that a serious illness often follows ; but if compensation were forthcoming they would remain away for a day or two, and return to work thoroughly restored. Let us place in the Bill itself the decision at which we arrive. When we reassemble there will be a new Parliament, and we do not know what may be the policy of the next Ministry. I would urge the Prime Minister to consent to the postponement of this clause to enable him to formulate necessary alterations in it, and with a view to bringing them forward to-morrow. I cannot conceive of any more fruitful source of trouble than for the Committee to arrive at an understanding with the Minister that a certain line of action will be pursued, notwithstanding that something to the contrary is expressed in the Bill.
.- There is one phase of this matter which ought not . to be overlooked in our anxiety to deal liberally with workers who are injured in the employ of the Commonwealth. I refer to the difficulty of judging whether an injury sustained by a workman is of a sufficiently grave character to warrant him in ceasing work at all. Friendly societies, of course, have their own medical officers, whose opinions upon the nature of injuries sustained by members of those organizations are accepted as a guide as to whe ther or not injured individuals are well enough to continue in their occupations. I fear that under the proposal of the honorable member for East Sydney the Commonwealth, in its desire to act liberally, will be a heavy loser. Some men who are injured do not realize that their injuries are of sufficient importance to prevent them from continuing at work.
– That is an argument against the Bill.
– It is not an argument against the Bill. I am merely stating a fact when I say that some men who sustain injuries do not realize that they ought not to continue at work. On one occasion I experienced the greatest difficulty in preventing a man from continuing at work when he had one of his big toes cut off. On the other hand, there are men whom it is difficult to get back to work, especially if the pay which they receive from a friendly society approximates the wages which they receive when at work.
– The honorable, member ought not to slander the employes of the Government.
– I am stating an absolute fact. These axe exceptional cases.
– Why slander these working men?
– I leave that for the honorable member. On the other hand, I have known a man to die from blood poisoning twelve months after receiving a slight scratch on the finger of which he thought nothing at the time. These are exceptional cases, and it is very difficult to legislate for such cases. It was on this account that friendly societies fixed a limit of three days during which injured members received no sick pay.
– That limit was fixed to reduce the actuaries’ tables.
– I know of thousands’ of accidents which have occurred, and of thousands of pounds which have been paid to the sufferers. These cases have been governed entirely by the men and their mates. If a man is absent from work for a week as the result of an accident, I do not see why he should not be paid compensation. But if we are going to pay him should he be absent for a single day, who is to be the judge of whether his injury is sufficient to warrant him ceasing work? I presume that he will have to report to his foreman that he has been injured. Is the foreman to be judge of whether the man’s injury is sufficiently grave to justify him in remaining away from work? The Commonwealth will have no medical man to whom he can be referred. The Bill has been drafted to avoid the difficulties which I have outlined, and which must be productive of friction.
– The foreman of the work can certify that the workman has met with an accident.
– But can the foreman of the work certify whether or not he is fit for duty? Obviously, he cannot be made the judge of that, and it would not pay the Commonwealth to employ a doctor to determine the question. I think that the suggestion of the Prime Minister would overcome these difficulties, which are not SO easy to meet as at first sight appears. I do” not suggest that a man would absent himself from work for a week if he were not really ill. But I know that, in connexion with the Miners’ Association, a considerable sum has been saved by’ referring men to a doctor, who has certified that they were fit to continue in their employment, when otherwise they would have absented themselves. .
– I have before me several awards by the Railways and Tramways Service Board. I propose to quote from three of those awards, which were made by chairmen whose names are held in high esteem in New South Wales. Clause 5 of an award which was made by the Government Railways and Tramways (Quarry) Board, on 4th September, 1909, reads -
Employes injured through circumstances entirely beyond their control shall be granted full pay during the period for which they are incapacitated from work, but where the injury is partly occasioned by the negligence of the employe himself the rate shall be half pay.
There is no qualification about that. Mr. J. Meillon, a very prominent barrister in New South Wales, is the chairman of that Board. Then an award was given by the Carriage and Waggon Builders’ Board, of which Mr. Wilfred Blacket is the chairman, on the 27th October of the same year. Clause 14 of that award reads - _ Employes injured through circumstances entirely beyond their control shall be granted full pay during the period for which they are incapacitated from work, but where the injury is partly occasioned by the negligence of the employe’ himself the rate shall be half pay.
The third award which I propose to quote is that of the Government Railways and Tramways Traffic Wages Staff Board. This is signed by H. Montgomerie Hamil ton, a prominent barrister in New South Wales, who, for a considerable time, has been acting as District Court Judge in that State. It was made on 31st December of last year. Clause 12 of it reads -
Employes to whom this award applies injured while in the execution of their duties, where such injuries a’re due to causes beyond their control and could not have been foreseen, shall receive full pay, and where such injuries are due partly but not wholly to their own carelessness, half pay, for so long as they are unable, in the opinion of the Railway Medical Officer, to resume their duties.
Under that award, men are obliged to visit the railway doctor occasionally, and if he certifies that they are unfit to resume duty, they receive their full pay. Between the first two awards and the third, a period of three years elapsed, during which it was open to the Railway Department to submit evidence to show that hardship was experienced in giving effect to those awards. But no such evidence has been forthcoming, and, from personal knowledge, I can say - I have handled dozens of these cases - that it is a great boon to the men that the accident clause contains no qualification as to time.
– How long do the payments continue?
– There is no limit to them. They continue as long as the award remains in existence. If men are incapacitated from work, they are entitled to full pay during the whole term that is covered by the award.
– Three years?
– While the award is in operation, for whatever time they are incapacitated. Some of the awards are for three years, and others have a duration of two years. There is no difficulty in the way of doing what I desire. I wish our legislation to be at least as liberal as the legislation suggested from men like Mr. Wilfred Blacket, Mr. Meillon, and Acting Judge Hamilton, who are certainly not Labour men. We should not hesitate about going as far as these men are prepared to go as the result of their judicial experience. I understand that the Prime Minister has agreed to the recommittal of the clause, so that it may be amended in a manner which will properly carry out the intention we have in view, and I should not have risen again but for the pressure from the other side.
– What does the honorable member mean?
– The honorable member asked the Government not to agree to this liberalizing of the clause.
– No. What I said was that it would be better, when a man was sick for a day or two, to give him sick leave on full pay than to force him to have recourse to the machinery of this measure.
– Whenever a claim is met without dispute, resort to the machinery of the measure will be unnecessary ; the law will be availed of only when there is a dispute. Whenever the Department recognises a claim, there will be no litigation or appeal to the law.
– There must be medical examination. .
– There must be proof of injury in the course of service occasioning incapacity, though there need not always be medical examination. I have been concerned in hundreds of cases in which a Department, seeing that a claim has been fairly made, has agreed to pay without demur. In such cases there will be no appeal to the law. I. hope that the Prime Minister will stand by what I understood him to promise, and that paragraph a will be so amended that provision will be made for the payment of compensation for all accidents after the first day of incapacity for work.
Clause agreed to.
Clauses,5 to 11 agreed to.
First schedule -
Scale and Conditions of Compensation. (1.) The amount of compensation under this Act shall be -
where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding fifty per centum of the workman’s average weekly earnings during the previous twelve months, if he has been so long employed, but if not then for any less period during which he has been in the employment of the Commonwealth, such weekly payment not to exceed Thirty shillings.
.- It is provided that where total or partial incapacity for work results from injury the weekly payment during the incapacity shall not exceed 50 per centum of the workman’s average weekly earnings during the previous twelve months, the payment not to exceed 30s. a week. This Bill has been copied largely from the Compensation Acts applying to workmen in private employment. I doubt if there is any Government which gives only half pay to its employe’s who have been incapacitated by injury, and I understood the honorable member for Darling Downs to reply to an interjection I made yesterday that the regulations of our Public Service Act provide for the giving of full pay when incapacity arises through an accident.
– If I said that I misunderstood the question.
– If that is the position, we are depriving public servants of privileges that they now enjoy.
– Yes ; they will be legally entitled under the Bill to less than they now receive. I understand that the Departments give full pay during incapacity arising from injury received in the course of employment.
– No.
– Then I should like to know what the practice is. The New South Wales Commissioners have been giving full pay in these cases, and the clauses of the awards which I read were framed to give the men a legal claim to full pay, instead of leaving them at the mercy of the Commissioners. There is no reason for giving only half pay. When a man who is engaged in fixing telegraph wires loses his footing, and, falling to the ground, injures himself, he should receive full pay during his incapacity, and the loss of his services is a fair charge against the work on which he is employed. When a man who is working among live electric wires is burnt or injured by the current, it is an accident for which he is not responsible, because no one would injure himself with a live electric wire if he could help it. Such men, on being incapacitated by injury, should receive full pay. Moreover, there is no reason why compensation should be denied when the incapacity lasts less than two weeks. That, however, is to be remedied, I understand, by the amendment of clause 4, which the Prime Minister has undertaken to recommit, and consequent upon that there must be an amendment of the schedule. There are many more accidents in connexion with railway and tramway employment than in any other branch of the Government Service, and I know that thousands of cases have occurred under the awards to which I have referred. The Commonwealth authorities will have much less to pay for accidents than Railway Commissioners have to pay proportionately to the number of men employed. To test the feeling of the Committee on this matter, I move -
That the words “fifty per centum” be left out.
If that be carried, I propose to insert other words, providing for the granting of full pay during incapacity caused by circumstances over which the injured employe had no control.
-The honorable member will not be able to move to increase the compensation.
– Then I shall move to create a blank. The amendment is not with a view to reducing the amount, but to increasing it ; and if the latter is shown to be the desire of the House, no doubt the Prime Minister will take the necessary steps to carry it into effect.
– The arguments of the honorable member for Cook would be complete in themselves if the policy were to pay full wages in regard to every accident. The honorable member has cited two or three instances where awards have been given to enable the payment of full wages. This Bill applies to every accident in the Commonwealth Service - to cases where nothing is paid at present, and where there is practically no hope of anything being paid unless a Bill of this kind is passed. It has been a principle of Workmen’s Compensation Acts to share the burden between the two parties, though I admit that it is arguable whether that is a sound logical principle. The Bill proposes to inaugurate a system that will insure to every employe of the Commonwealth, in case of accident, at least 50 per cent, of his earnings, and there will be a broad interpretation given to the law in this respect. The only restriction is in reference to wilful and serious misconduct on the part of the workman. The honorable member’s proposal is hedged round with qualifications as to contributory negligence, but, under the Bill, compensation will be paid, although the workman may have contributed to the accident by disobeying instructions. This Bill will not prohibit the Government from being as liberal as they chose in dealing with special cases, but provides a statutory payment beyond which the Government may go if they think it advisable. The honorable member for Cook has referred to his connexion with cases of the kind in recent years, but I may tell him that, long before I thought of entering this Parliament, I supported the same principle, though with much less success than to-day. The only question now is what proportion of the. earnings of the sufferer shall be paid to him during his incapacity ; and, in my opinion, this Bill represents a very fair beginning in workmen’s compensation legislation. I deny at once that this Bill will reduce the amount now received by public servants, because any one who now receives full pay will continue to do so.
– We do not know what a succeeding Government may do.
– Whatever differences of opinion there may be in regard to general legislation, a succeeding Government is always careful never to reduce any amount paid under a Bill of this kind. I ask the honorable member not to press the amendment ; but, if he does so, I hope the Committee will reject it. This Bill will, I hope, be the means of affording relief to a great many, not as a charity, or even as the result of generosity on the part of the Government, but as a right. It is advisable that this principle of compensation should be affirmed on the basis adopted by democratic New Zealand and other Dominions. This Bill is more liberal than any I know ; and I ask the Committee not to approve of the amendment.
.- I admit the logic of the attitude of the honorable member for Cook, and I, at the same time, recognise the difficulties which face the Prime Minister. No one appreciates more than I do the introduction of this Bill, and, as has already been pointed out, proposals of the kind cannot be pushed to their logical, issue, but must be subject to compromise. There is one provision in the Bill which, I suggest, requires modification. It is provided that a man who has been twelve months in the Service shall be paid 50 per cent, of his average earnings during the previous twelve months, but, in the event of his not having been engaged for twelve months, the payment shall not exceed 30s. It might easily happen that the man to receive the 30s. would be really the more deserving of the 50 per cent., seeing that possibly he would have been out of work for a considerable period. Such a man is an employe equally with another who has worked for the Government for twelve months; and it appears to me that there is some unfairness in the determination to pay him only 30s. All men, no matter what their length of service, should be paid on the same basis; an accident is an accident to whomsoever it may happen.
Amendment negatived.
– The principle to which the honorable member for Dalley objects runs right through the Bill. In the case of total incapacity the payments can be commuted, and the policy I have always advocated is that in such cases the commutation should be equal to the amount that would be paid in case of death.
– But partial incapacity is also mentioned.
– A man incapacitated for the particular kind of work might be able to take up another kind of work ; and that fact should be taken into consideration.
– But whv the distinction between a person who has worked for twelve months and the person who has worked for three.
– I do not agree that there is any distinction. Supposing a man has worked only one week, payment will be made on a calculation of what his earnings would have been over a year ; and in three years the amount would approach £500.
– Does the limitation of 30s. apply to those who have worked over twelve months’ as well as to those who have not worked that time?
– I think so; I think that even if he has worked only one week the amount would not come far short of . £500.
– There is one factor that has not been explained. How is the average to be arrived at ? Suppose a man has been employed at all times making up a total of six months in the year, will the average be taken over the whole time or over part?
– I should take the latter part of his employment at the highest wages.
– If so, his average wages over the whole year might be equivalent to full pay for six months. If the average is taken over the partial employment in the year, a man may get as much in the first year after the injury, at half pay, as he would have got at whole pay over the six months. There is nothing to show how the average is taken.
– I think that might be left to common sense.
– I am sorry I did not succeed with the previous amendment. I object to the provision that the payment shall not exceed 30s.
– It might be provided that the sum should be not less than 30s.
– That might result in the payment being confined to 30s., but I am willing to liberalize the clause in any way. My objection is that we are slavishly following Conservative Workmen’s Compensation Acts. I should like to have set before the country something better than the legislation that has been passed by Governments largely representing the employers. Here we are dealing with our own servants, and have an opportunity to give a lead to all the State Parliaments. If I could have secured a second voice, I should have had a division on the amendment that I moved a few minutes ago, and I shall certainly endeavour to secure a division on the amendment I am now about to propose. I refuse to be associated with any legislation which places on the employe” half the responsibility for an accident for which he is not to blame, and which ought to be attached to the industry itself. I, therefore, move -
That the words “ such weekly payment not to exceed thirty shillings” be left out.
.- It seems to me that under this Bill we may reduce some of the privileges now enjoyed by public servants. If a public servant falls sick, or meets with an accident, the head of his Department has no hesitation in recommending that he be granted leave on full pay during the time that he is incapacitated.
– That is done in many instances, and will not be set aside by this provision.
– But a public servant will now be legally entitled only to the compensation for which this Bill provides.
– I wish to be clear on the point. Take the case of a telephone lineman who, while in the execution of his duty, falls from a pole and breaks his leg. Under the existing practice he would be entitled to receive full pay, amounting to about£2 10s. per week, as long as he was disabled.
– Not legally entitled.
– The point is that under the existing practice he would be receiving about 50s. a week while he wasaway from work, whereas under this Bill itseems to me that there would be only 30s. a week coming into his home,, so that he would suffer a loss of £1 per week. If that will be the position under the Bill as it stands I shall certainly vote for the amendment.
.- I speak subject to correction by the Prime Minister, but I think that the honorable member for Maribyrnong has overlooked one rather important point. Under paragraph / of clause 4 it is provided that -
Where the workman continues in the service of the Commonwealth after the injury, any pay received by him from the Commonwealth shall be. deducted from any compensation payable under this Act in respect of the same period. whilst under section 68 of the Public Service Act it is provided that -
Unless otherwise directed by the Minister of his Department the Chief Officer may grant to every officer of his Department leave of absence for recreation for any period or periods not exceeding in the whole eighteen days in each year, exclusive of Sundays and holidays, and such Minister, in cases of illness or other pressing necessity, may grant such extended leave not exceeding three months, and the GovernorGeneral may grant leave not exceeding twelve months on such terms as may be prescribed.
– This clause will reduce the relief given by that section.
– I do not think that the Prime Minister intends that this Bill is to take the place of the provisions of the Public Service Act.
– I do not.
– This Bill deals only with disablement arising from accident.
– The Public Service Act deals with illness generally. Surely a man who was injured in an accident could be said to be ill.
– Then, again, all our employes are not under the Public Service Act.
– Quite so. The honorable member for Maribyrnong asked whether public servants, who were entitled under the Public Service Act to leave of absence on full pay when they were incapacitated, would have their pay reduced under this Bill.
– That is not the policy of this Government.
– I take it that the intention of this measure is to give something in addition to the other provisions made under the existing law. We have three classes of public servants. First of all, we have the Clerical Division, comprising about 15,000 employes; then we have exempt officers, including, I think, many linemen, and we have also temporary officers. I think that, roughly speaking, there are 15,000 or 16,000 exempt officers - officers who have been exempted from the provisions of the Public Service Act - and about 3,500 temporary employes. All these will be greatly benefited by this measure. The number of temporary employes will be enormously increased as the result of the construction of Commonwealth railways and the building of the Federal Capital. As soon as we started upon these large industrial undertakings, there arose necessity for a Bill of this kind. It was because of the vast increase of these that I suggested to the Prime Minister last year a Bill of this kind. The position of officers in the Clerical Division will remain untouched. I speak now subject to correction by the Prime Minister. They are under the Public Service Act, and, if disabled, are entitled to obtain leave of absence, but if they meet with an accident, and are killed, under the law as it stands their dependents receive no compensation unless a special Act of appropriation be passed. Under this Bill, however, they will be entitled to compensation, so that an additional benefit will be conferred upon them. If they are killed their dependents will receive compensation, whereas, if they are disabled, any sick pay received by them under the Public Service Act will be deducted from any compensation payable under this Bill in respect of the same period. Under the Public Service Act, the Governor-General may grant twelve months’ leave of absence.
– After the expiration of six months, it would be too late to notify a claim under the Bill.
– A wise man will take care to give every notice necessary to make secure every right that he possesses. A very large body of men to whom this Bill will apply do not come under the provisions of the Public Service Act, and it seems to me that we are making a fair and generous beginning. The Bill will give a great deal of relief. The intention of the Bill is to provide for casual and temporary workers, as well as permanent employes, so that we are making provision for general compensation for all persons under contract of service with the Commonwealth, whether express or implied. In New Zealand, compensation up to £soo> and a weekly’ payment of 20s., is provided, whilst in Queensland compensation not exceeding ^400 is payable.
– In the United Kingdom, compensation equal to three years’ pay, or ^250, whichever may be the larger, but not exceeding£300, is payable. In case of incapacity, a payment not exceeding £1 ^per week may be made.
– Quite so. Altogether I think that the Bill displays a desire to meet -every special case.
– Under the New Zealand JAct the compensation is not less than , £200, -and not more than ^400, whereas we provide for not less than £200, and not more uthan . £500.
– Under sub-section 9, -section 5, of the New Zealand Act of 1908 it is provided that the aggregate amount of weekly payments shall in no case exceed £500. It is also provided that during any period of partial incapacity the weekly payments shall be one-half of the. difference between the amount of average weekly earnings before the accident and the average Aveekly amount which the worker is earning, or is able to earn, in some suitable employ ment or business after the accident. The honorable member for Cook asked what was the present arrangement in regard to cases of incapacity at present. In answer to sthe honorable member, I would point out ithat the honorable member for EdenMonaro, when he held office as Postmaster- General, caused the following memorandum to be issued to the Deputy Postmasters«General : -
I am to inform you the Postmaster-General »’has approved that provision be made on the Estimates of this Department for the payment of compensation -
to the widow and or to the children undei age dependent upon an official of the Department who, through circumstances over which he has no control, is killed in the ordinary performance of his official duties, and
to any official who, under circumstances similar to those mentioned in (a) above, is so injured as to be rendered incapable of further service.
The Department will not, holw.ever, grant any special compensation in cases where death -or injury is caused by other than Departmental works, &c, e.g., by railway accident when an “Officer is travelling on duty.
In the cases (a) and (i) cited above the essential principles of the provisions contained in the Employers’ Liability Acts (in operation in all States of the Commonwealth), as set forth on the sheet marked “A” annexed hereto, are to apply, but with the proviso that the maximum amount of compensation to an injured official, or where he is killed, to his widow, on behalf of herself and children, shall not in any case exceed ^500, with payment, where an official is killed, representing a maximum sum of £200 for the widow and ^100 each (with a maximum of £300) for children under the age of 16 years.
Instead of getting a weekly sum, he receives a lump payment which must not &l- ceed£500
– In accordance with the Employers’ Liability Act?
– Yes. The references to the State Acts were intended for guidance. If the honorable member will turn up the Acts of 1908 and 1909 he will see in them amounts voted to officers.
– From what paper has the honorable member just quoted ?
– From an Executive minute which was issued in 1907 to all officers in the Postal Service. That minute has been acted upon up to date. But now that the Commonwealth is employing officers and men in the construction of railways it has become necessary to make more extended provision for the payment of compensation in cases of accident. That is the reason why I brought this matter forward last year. On that occasion I pointed out that, as the Commonwealth was about to engage in large undertakings, which were of a specially dangerous character, we ought to have a Statute under which claims for compensation might be determined. That Executive minute will, therefore, be superseded.
– The honorable member said just now that the Bill would not interfere with the rights of permanent employes of the Commonwealth.
– The honorable member misunderstood me. The question which was put to me was whether it would affect the statutory rights of Commonwealth employes under our Public Service Act. The minute from which I have quoted is not statutory law.
– It is a minute under the Public Service Act.
– No. The law can override it.
– Of course, the law can override it. It is the wish of the Prime Minister that these things should not be left to Ministerial direction, and that Parliament should not afterwards be asked to make the necessary appropriation. He desires, as I think we all do, that we should pass a law under which relief may be granted to injured workmen or to their dependents at the earliest possible moment.
– At the present time every Commonwealth employ^ who is injured, or his dependents, have to be named in a Bill brought forward for the purpose of authorizing the payment of compensation.
– We require a simple, expeditious, and equitable system, under which compensation may be paid to injured workmen or to their dependents. That is why we are co-operating with the Prime Minister to secure the passing of the Bill. Of course, when this measure becomes law, we shall not have attained our highest ideals of social reform. The Act which was passed in England in 1906 was regarded as a most remarkable advance in’ that direction. But every time progress is made in the working of any piece of social machinery defects inevitably manifest themselves, and those defects require to be remedied from time to time. This Bill does not represent, by any means, the last word on the question of workmen’s compensation. Nevertheless, it marks a very important and decisive step forward, and, therefore, I hope we shall pass it into law in the form in which it has been introduced.
.- The speech of the honorable member for Darling Downs has not cleared the atmosphere at all. In the first place, I asked whether Commonwealth employes who are injured in the course of their employment are being paid in full during the period that they are incapacitated, and I received a negative reply. Then the honorable member for Maribyrnong affirmed that he knows of cases in which the men are receiving full pay. It is apparent, therefore, that if the Bill be adopted in its present form, and its provisions enforced as the standard, it will result in a reduction of their accident pay. In reply, the honorable member for Darling Downs quoted section 68 of our Public Service Act. But I would point out to him that that section is of a permissive character. It merely declares that the Public Service Commissioner “may” make regulations. He may make regulations to grant to in-‘ jured employes any compensation that he pleases; and, on the other hand, he may grant them nothing. Under that section there is no guarantes that an employ^ who is injured in the Commonwealth Service will receive anything. There is not a public servant in Australia who has any statutory rights under that section. It places no obligation on the Department to grant compensation. If compensation be paid, it is paid as an act of grace.
– This Bill does not affect that.
– Then, what do these words mean - “ Workman “ means any person who has entered into or works under a contract of serviceor apprenticeship with the Commonwealth,, whether by way of manual labour, clerical work,, or otherwise, and whether the contract is expressed or implied, is oral or in writing, buf does not include -
Forces of the Commonwealth.
Why is it necessary to expressly excludemembers of -the Naval and Military Forcesif the Bill is not to apply to the publicservants of the Commonwealth?
– It applies to them allright.
– Where are we toget light on the subject of whom it is intended to cover? I say that the Bill, covers the whole of the public servants of the Commonwealth, with the exceptions* mentioned in clause 3.
– Hear, hear !
– The honorable member agrees with me. That being so,.. all that Commonwealth employes who sustain injury in the course of their employment will be entitled to under the measureis half pay, with a maximum of 30s. a* week. If they are at present receiving full, pay in similar circumstances without anyr limitation-
– I take it that a publicservant has two strings to his bow.
– Of course he has.. Every citizen of the Commonwealth hastwo strings to his bow. He has his legalright, and anything which the Governmentmay choose to give him irrespective of that right. It is true that, though we may lay it down in this Bill that employes of theCommonwealth shall be entitled only tohalf pay in the event of their being inr capacitated as the result of accident, theGovernment can grant them full pay as an. act of grace. But they will have no legalright to full pay.
– I asked whether the Bill’ will take away any privilege which is emjoyed by public servants to-day, and I wasassured that it will not.
– If it be true that; men are receiving full pay during theperiod that they are incapacitated, thisBill affirms that in future they shall receive only half pay.
– That is the way I read it.
– When it comes into operation the heads of Departments, in cases of illness, will deal with Commonwealth employes under the ordinary regulations. But in cases of accident they will deal with them according to the provisions -of this Bill, unless they receive an instruction from the Government that in such cases full pay is to be granted. If the Government intend to issue such an instruction, provision for it ought to be made in this Bill. The men would then have a legal right to full compensation. According to the honorable member for Darling “Downs, there are about 30,000 employes who come within the scope of section 68 of -our Public Service Act.
– Fifteen thousand. The -other 15,000 are exempted from the operation of the Act.
– Fifteen thousand -of those employes, in cases of illness, will receive sick pay under the ordinary regulations, but in cases of accident they will /receive accident pay. The honorable member for Darling Downs has given a clearer explanation of the Bill than has any honorable member upon this side of the chamber.
– I cannot speak authoritatively. I can only speak subject to correction.
– The Bill covers the employes of the Public Service, both permanent and temporary, with the exception of members of the Naval and Military Forces, out-workers, and persons who are 4n receipt of more than , £500 a year. I rhope that we shall strike out the limitation -of 30s. per week, and I would infinitely have preferred the Bill to have definitely ^stated that, in cases of accident, Commonwealth employes should be granted full pay.
.- The ^honorable member who has just resumed his -seat stated that the honorable member for Darling Downs has given a clearer explanation of the purposes of the Bill than has any other honorable member. If that be so, it is certainly not a matter for complaint against the honorable member for Darling Downs. I would suggest to the honorable :anember for Cook that his amendment does not meet the broad issue which he has submitted to the Committee.
– I moved an amendinent a little while ago which would have *net it, but I could not obtain a seconder ato it.
– It seems to me that if you are going to attack the principle, you should attack it in toto. The definition in the Bill of “ workman “ embraces practically every person in the service of the Commonwealth, with the exception of the Naval and Military Forces, and thus almost every Commonwealth public servant under this Act can lose the right which practice has accorded to him to his full wages when incapacitated. This I regret very much, for I think that what a public servant is entitled to under such circumstances is what he has lost - neither more nor less. The schedule provides, too, that the workman who has been’ injured shall receive while incapacitated, not half the wages that he was drawing at the time of his accident, but half the average wages drawn during the previous twelve months: When a man is incapacitated by accident, he is in reality deprived, not of his average earnings for the previous year, but of his actual earnings at the time of the accident.
– A man may be earning less when an accident occurs than he earned on . the average during the preceding twelve months.
– That is very unlikely.
– With experience, wages increase.
– Yes, and, generally speaking, the wages of our Commonwealth employes are increasing. This position is all in favour of the Treasury, and against the public servant. What is it that a man is deprived of when incapacitated by accident? The wages that he was earning at the time. He ought, therefore, to receive as compensation at’ least half of what he was actually earning, not half of his average earnings for the previous twelve months. . It is surprising for the Prime Minister to suggest that the Commonwealth wages are coming down, and that, therefore, this principle of averaging will be in favour of the men.
– I did not say that. My suggestion was that it will work both ways, and that men may be sometimes injured at a time when they are earning lower wages than their average earnings during the preceding twelve months.
– I think that in all cases wages in the Commonwealth Service are increasing, but I understood the Prime Minister to say “I think not.”
– I did not say that.
– Perhaps the right honorable gentleman thought a little more loudly than he intended. As a matter of fact, the wages of a Commonwealth public servant increase with his service, and a man who is injured is entitled, by way of compensation, to the wages he was receiving at the time of his accident. It is a bad example to set our private employers to reduce compensation to half the average earnings over the previous twelve months.
– This measure will not abrogate the rights given to public servants by the Public Service Act.
– Being passed subsequently to the Public Service Act, it will override it where there is a conflict of provisions, though it is set forth that rights of action against the Commonwealth now possessed will not be taken away. Still, v*e do not wish to encourage working men to waste their savings in going to law. A man is entitled to have his position set out clearly in this measure ; in that matter I cordially support the honorable member for Cook. It should not be necessary for a working man to have to jump from Statute to Statute, and from minute to statement of Ministerial intention to get at his position.
– The union generally provides legal assistance in cases of this kind.
– But the burden falls upon the members of the union, whose funds are derived from their subscriptions. The Minister might well redraft the schedule to bring it more into consonance with the views of honorable members on both sides.
– I object to giving compensation to the extent of full pay. We must remember that any compensation that is paid must be taken from the pockets of the general taxpayers. When the members of a benefit society receive benefits from its funds, they are benefits for which they have provided by their subscriptions; but in this case the benefits they will be given will have been provided at the expense of the taxpayer generally. It must be remembered that the Commonwealth Public Service is very large.
– Is not any loss through accident a fair charge on the industry or service in connexion with which it occurs?
– The Commonwealth public servants are only part of the whole body of taxpayers, and many of those who will be taxed to provide them with compensation receive much lower wages than they get. The measure has been liberally drafted, and the Prime Minister will do well not to accept the proposed amendmentLarge public works like the construction of the transcontinental railway will mean a’ great addition to the number of public servants. I do not know whether honorable members opposite think that Brother Chinn having been engaged to supervise the work, there will be no accidents in connexion with it ; but my opinion is that there must inevitably be a great many. Possibly a good many persons may be incapacitated in connexion with the powellising of the karri sleepers. The men who will be employed on this work will have to be paid very high wages - perhaps 12s. or 14s. a day - because it will be difficult to get labour. To pay them full wages when incapacitated by accident would mean a great tax on the community.
– They are to receive only half-pay while incapacitated. My amendment is to get rid of the minimum of 30s. a week.
– The Bill is liberal enough as it stands.
.- I was a good deal impressed by what was said by the honorable member for Cook. This Bill, for the first time, gives rights to the public servants in respect of compensation, but it does not interfere with or abolish those provisions of the Public Service Act under which compensation hasbeen paid in the past.
– The honorable member accepts the statement that it does not deprive the public servants of existing rights ?
– Not only do I accept it, but I make it. It cannot be said that the rights which we are establishing1, are on a very generous scale. In the first place, it is not proposed to give any compensation for damages in recognition of the pain and suffering endured. Workmen who have been incapacitated by accident are te* receive only 50 per centum of their average earnings for the past twelve months.. But, as the honorable member for Wentworth properly , points out, they should receive at least 50 per centum of their actual earnings at the time of their injury.
– Late in life men are sometimes getting less than the average of what* they have been receiving in the past.
– As a rule wages increase with experience.
– Most of the men who will come under the Bill will be manual labourers.
– We now come to the last restriction in reference to which the honorable member for Cook has moved an amendment. If the amendment be persisted in, I feel that I must support it. We propose to pay compensation to Commonwealth servants who receive salaries up to .£500 per annum, and, although, perhaps, we should not direct our sympathy to the higher paid officials in particular, 30s. per week represents only a small percentage in their case The Bill, for the first time, is establishing rights in this connexion ; and it is a measure of which we can all heartily approve; but I think that we are a little ungenerous in regard to the amount of com.pensation to be paid.
– I hope the amendment will not be approved. There is no doubt that 30s. a week represents only small compensation to a man receiving ^500 a year, but in such cases the compensation may not be required. To the ordinary workman, however, this Bill will, I think, prove a veritable godsend, seeing that, if a man is earning an average of £3 a week, he will be assured of 30s. a week during incapacity. I have to point out that this Bill does not in any way take away the right to proceed against the Commonwealth for damages, and the Government in some cases may have to pay thousands of pounds; so that there is really nothing in the argument presented, by the honorable member for Batman. I am glad to say that many of our workmen are in friendly societies, and I only wish that more of them were. An accident, of course, entails sickness for which an allowance will be made by a friendly society.
– The workman himself pays for that.
– The workman insures himself. I presume the honorable member for Cook does not desire that our workmen should not be in friendly societies.
– Certainly not.
– I hope that in discussing the Bill nothing will be said to give rise to any idea that we desire to discourage the men and women of the community from joining friendly societies, so as to insure assistance in times of sickness and trial. This Bill does not deal with sickness, which is another matter altogether, and comes under the Public Service Act. Where public servants receive “ sick pay “ during sickness, they are also paid during sickness caused by accident. The measure is not all that I desire, but it is all that the Government can see their way to offer at the present time ; and I think that it will prove a great aid to thousands, probably within the next few years.
.- The Prime Minister has said that the Public Service Act, which takes sickness into account, will also apply to accidents. Are we to take it that if a public servant, who now receives pay during sickness, meets with an accident in the execution of his duty, this Bill will not affect his position in that regard?
– The Bill will in no way debar him from continuing to receive payment.
– We shall be employing thousands of men in what may be termed hazardous work in the construction of railways, and so forth, and a large proportion of them will receive at least 12s. a day, or 72s. a week.
– There is a lot of broken time.
– That may be; but the compensation will be computed on the average wage for the previous twelve’ months. If we apply the limitation to 30s. a week to the men employed, say, on the transcontinental railway, we shall be depriving them of, at least, 6s. a week during incapacity ; whereas, under the amendment of the honorable member for Cook, they would receive half pay.
– What about the men receiving ,£500 a year?
– A man receiving £500 and over is outside the scope of the Bill.
– Well, what about a man who receives ^480?
– I admit that half pay would mean a big sum. A large number of the men engaged on the transcontinental railway will be away from their families in the several States, and will have, practically, to keep up two homes. Should a man meet with an accident, I do not know how those dependent on him will get on with only 30s. a week. If we cannot “ go the whole hog,” I think we ought to provide for the payment of half salary within certain limits.
– If honorable members think that a limit of £2 is not excessive, I am agreeable to propose that amount.
– On that understanding, I ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
– The argument provided by the case of men employed in the Northern Territory and in Western Australia, who receive from ^3 10s. to £4 a week, is a sound argument in favour of an extension of the limit. I move -
That the word “Thirty” be left out, with a view to insert in lieu thereof the word “ Forty.”
Amendment agreed to.
– The schedule will require amendment, in order to bring it into line with the suggested amendment in the definition clause.
– I shall move to re-commit all the provisions affected by the amendment ; the policy will be carried out right through the Bill.
Schedule, as amended, agreed to.
Second schedule.
.- Up to the present, the High Court or the Supreme Court of a State is the only tribunal before which action may be taken against the Commonwealth. This Bill really copies the legislation of the States and Imperial legislation ; and up to the present it has been considered that the Crown should not be sued in a minor Court. In some of the States, for instance, the Crown will not allow itself to be sued in a District Court, or a County Court; whereas, under the Bill, the Commonwealth may be sued in any Court. This may have been provided deliberately, or it may not; and I merely call attention to it in order that it may be considered, because we are really departing from the principle hitherto adopted.
– The remedy ought to be convenient and economical.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
page 4858
Assent reported.
page 4858
Mr. KING O’MALLEY laid upon the table the following paper: -
Lands Acquisition Act. - Land acquired under, at Sydney, New South Wales - For Commonwealth Bank purposes.
page 4858
– I move -
That this Bill be now read a second time.
The ‘ measure before the Chamber deals with a matter of very considerable importance to every civilized community. Copyright in its specific application in this place means the right to multiply copies of thoseworks of the human brain, generally referred to as literature, musical, dramatic,, and pictorial art. It concerns the property rights of the individual in the product of his own brain. Rights in relation to literary, artistic, musical,, dramatic, and kindred works are dealt with in this measure. I think it will be advantageous for me to refer very briefly to the history of the measure itself before I proceed to explain its principles, and to state how the proposed law differs from, the law as it stands. Copyright in Australia is governed by the Copyright Act of 1905, by certain Imperial Acts, and by the Berne Convention of 1886. At the BerneConvention an International CopyrightUnion was established, and each country of” the Union was put under an obligation toprotect copyright in all the countries of the Union. In the following year Great. Britain assented to the terms of that Convention on behalf of herself and the wholeof the British Dominions. In 1896, theAct of Paris, modifying certain articles of” the Berne Convention, was passed, and was.assented to by Great Britain on behalf of herself and the whole of the British Dominions; and in 1908, a further International Copyright Conference took place, and? resulted ultimately in the Berlin Convention’ of 1908, which constitutes a very great advance upon the Berne Convention and theAct of Paris. In 1909, a strong Committee, appointed by the Board of Trade,, made certain recommendations generallyfavouring the accession of Great Britain tothe Convention, and this being approved by the British Government, it was decided” that action should be taken. Before action’ was taken, however, to carry out the recommendations of the Committee, the matter was brought before an Imperial Conference, which took place in 19 10, and at which Australia was represented by Lord’ Tennyson. This Conference recommended’ that the Convention should be ratified by the Imperial Government on behalf of thevarious parts of the Empire, and that the ^necessary amendments should be made in British law. Accordingly, in 19 10, a Bill was introduced into the British Parliament, -and last year was passed into law. It came into force on 1st July of this year. “That law, which is in force in Great Britain, -and to which we are asked to assent to-day, is Imperial in its scope. It is in force in Great Britain and in all the Crown colonies, but it is not to extend to the selfgoverning dominions, except where the (Legislatures of those dominions so declare. :If a self-governing dominion adopts the English Act it will have all the advantages of copyright throughout Great Britain, as well as all the self-governing Dominions “that have adopted it, and throughout all “the countries of the Union. What these’ are I shall shortly recite. If a selfgovern.ing Dominion remains outside, its position is rather doubtful. The law in such case “will probably be as it now stands, with a aright on the part of the Dominion to legislate for itself independently.
There are two great groups of copyright ^nations to which the English-speaking nations have attached themselves. One is that of which Great Britain is a member, while the other is that of America. Undoubtedly the copyright law as adopted by Great Britain, is much to be preferred to that in. force in America. The advantage to the Commonwealth of adopting this British Act is overwhelming. By doing so we make the law of copyright - always an intricate subject - uniform throughout the Empire, and 3t becomes clear and effective. It may be ((pointed out that when you are dealing with copyright you are dealing with a property right not subject to those easy processes of identification and establishment of title that lend themselves to other forms of property. A work that is the fruit of a man’s -‘brain is peculiarly liable to piracy. I think there is no form of robbery more -contemptible as well as more deplorable than that which deprives a man of the fruit - of his brains. It is well, therefore, that the law should be not only uniform, but -effective and easily applicable. This we get in the measure now before the Chamber. By it, the copyright in an article produced locally is granted through the whole of the British Dominions, and all the countries of “the Union. Those countries are Belgium, Denmark, France, Germany, Great Britain, Hayti, Italy, Japan, Liberia, Luxemberg, “-Monaco, Norway, Portugal, Spain, Switzerland, and Tunis. In addition, Great
Britain has an independent treaty with Austria-Hungary, so that over all this wide extent of the civilized world, the copyright in any work produced in this country will run, and an author will get protection in an easy, inexpensive, and effective fashion. The works produced in every one of these countries will also have protection throughout the Empire generally. Broadly speak, ing, the provisions of the English Act are similar to those of the Statute that now operates here, but they differ in several important particulars. For instance, when our Act was passed, cinematograph and mechanical reproductions of music were in their infancy. Since then they have advanced to such an extent that the rights in respect of cinematograph films, perforated rolls for pianolas and other forms of mechanical music, as well as phonographic and gramophone records, furnish a very large portion of the profits to which an author or singer, or the creator of any work of art, in all its varied forms, may look. In regard to this phase of copyright, which, of course, is necessarily quite new, the Statute provides an extension of copyright to cover the making of records, perforated rolls, cinematograph films, and other contrivances by means of which literary, dramatic, or musical works may be mechanically performed or delivered. All these are protected. The position in respect of these matters is that, so far as all musical works published before the commencement of this Bill are. concerned, the making of records, perforated rolls, or other contrivances for mechanically performing them is not to be considered an infringement of the copyright in the musical work, provided first of all that the person making the records, &c, has given the owner of the copyright notice of his intention to make them, and, secondly, that royalty is paid to the owner of . the copyright at prescribed rates. In respect of musical works produced after the commencement of the Act, there is, in addition to these two requisites, a provision that notice shall be given to the owner of intention to reproduce them. In regard to another matter also, the English Act strikes out in a new line. For the first time, we have an extension of copyright in artistic works to cover works of architecture. Just precisely how far that goes, it is rather difficult to say.. It certainly does not go so far as to cover any. design, in construction, but probably it extends to the artistic work itself. It is, at all events;, a’ marked advance, and appears to be in accordance with those principles which, underlie the law of copyright. I come now to the term of copyright. Under our law as it stands, copyright subsisted for the author’s life, and seven years, or forty-two years, whichever was the longer. The English Act now provides that copyright shall subsist for the author’s life, plus ‘fifty years. That is a very substantial extension. The matter was very carefully discussed at the last Copyright Convention, but Great Britain, for some excellent reason, no doubt, was a little timid in adopting this provision. However, it is now embodied in the Statute law, and if we adopt this Bill, copyright in Australia will persist over the author’s life, plus fifty years. There are, however, two limitations imposed upon this period. The first is that, at the end of twenty-five years after the author’s death, any person may reproduce his work on giving the owner of the copyright notice that he proposes to do so, and paying a royalty of 10 per cent, on the published price of all copies sold by him. This will enable the widow of the deceased author to obtain the benefits of the production, whilst, at the same time, allowing the public to enjoy the advantages of the work. The other limitation consists in the power qf the Privy Council, in a proper case, to grant a licence to reproduce or perform1 the work in public on terms. But this permission cannot be granted by the Privy Council during the life of the author. So that, substantially, the position is that under this Bill copyright will be for the author’s life, plus fifty years. After he has been dead for twenty-five years any person may reproduce his work, provided that notice is given to the owner of the copyright, and a royalty is paid at the rate of 10 per cent, on the published price of the work, and the Privy Council may, where it is deemed necessary in the interests of the public that there should be a reproduction of an author’s work, order that reproduction, but only after the decease of the author. The Bill also seeks to impose a limitation on the right of authors to assign. In this connexion the English Act provides -
An author cannot, except by will, assign his copyright for more than 25 years after his death. After 25 years, unless the assignment has been made by will, the copyright reverts to the author’s estate.
That provision has been designed in the interests of authors. A man may assign his copyright, and twenty-five years after his death the copyright will pass ipso facto to his family, who will thus obtain thebenefit of that property. The assigneewill enjoy the benefit of it only for twentyfive years. There are one or two minormatters which are dealt with, notably thatpublication in a collection intended for the use of schools shall not be regarded as an infringement of copyright, provided thatonly two passages are taken from an authorwithin five years, and their source is acknowledged. I come now to a most important point. As every honorable member knows, one of the essentials of copyright under the existing law is registration. In order to secure a copyright a man must, register. But under the English Act registration has been entirely abolished. Onerhas to prove his copyright in any way that he may please, but he does not register it… We do not propose to follow the English/ Act in that respect. Let us suppose that a* man writes a play. In order to copyright it, he must have a public performance of it. Honorable members who have permitted themselves to indulge in that form of intellectual dexterity known as playwriting, will recognise how farcical, andi sometimes pathetic, have been these semiprivate performances. Under this Bill, it; will not be necessary to have any suein performance. It will be sufficient for, the-, author to have written the play to obtain, a copyright in it. Nothing further, will, remain to be done. Even an unpublished-t work will be protected in the same way,, subject to certain very necessary pro- visions. Copyright may be secured with- - out registration and without public performance of any kind. There is another point which will prove of interest to..honorable members. It is well known -that-., if any man delivers a lecture, he has a>. copyright in that lecture. It cannot be repeated by anybody except they are subject to the pains and penalties imposed by the law. As a lecture includes political addresses, quite av. number of very excellent observations are shrouded in comparative silence and gloom owing to this unnatural treatment.Under the English Act the matter is dealt. with a little more sensibly. While a lecturing right is not deemed to be infringed” by a report of a lecture in a newspaper,:where the author has not notified eitherorally or by poster that he objects to its>publication, this provision is relaxed in regard to a political address. A political address may, therefore, be published in anynewspaper without infringing the speaker.’ s lecturing right, and I do hope that the press of this country will take an early opportunity of reporting a number of most excellent gentlemen who apparently, owing to the injurious operation of the existing law, have long been immured under a thick veil of privacy and silence.
I come now to the modifications upon the English Act which are proposed in the Bill. It is one of the conditions of the Copyright Convention that we must adopt the English Act as a whole or not at all. Only one exception is made, and that is in regard to procedure, and to such other matters in the nature of remedies as properly fall under the heading of procedure. We intend to take advantage of that permission, and propose to provide for registration of copyright, but to allow that registration to be optional. We propose to offer an inducement to register. We intend to give certain advantages to persons who do register. But copyright will not be dependent upon registration, and will subsist without it. Honorable members will notice in the Bill a number of clauses which provide certain remedies which are enjoyable only by a registered owner. We also propose a modification of the English law in regard to the importation of infringing copies. This is a modification which is necessary to adapt the English Act to our local circumstances. In clause 10 we seek to effect an alteration of the English law by substituting the Commonwealth Customs Act for the Imperial Act. That, of course, is necessary in order to adapt the English Act to our circumstances.
The Bill is largely one of detail, and therefore can be dealt with more effectively in Committee. I merely wish to point out one or two of its chief features, and to urge some reasons why it should be accepted. As I have said, copyright is a law which gives to the author of any work, be it literary, musical, or artistic, a property right in the creation of his own brain. That is a right which the common law of England recognised. Our Copyright Act of 1905 extended the common law rights in this connexion, whatever they were - and I must confess it is very doubtful what they were - in view of the Statute of Queen Anne. Subsequent legislation recognised the injustice which that Statute inflicted by taking away from, individuals the common law rights which previously existed. The present English
Act wipes away all common law rights, and therefore the law in regard to copyright will be found in this Bill. We take the English Statute law, and thus we secure to ourselves uniformity of statute law and all the benefits arising from a uniform series of decisions under that law. We also derive the advantage which will be conferred by having our copyrights recognised over the greater portion of the civilized world. We further secure the benefit which may flow from accretions to the Copyright Convention Union, which may subsequently be made. We may gain a still further advantage by the issue of an Order in Council, which, however, must be approved by the British Parliament. So that a man who has a copyright in Australia has a copyright over the greater part of the civilized world. He will gain the advantage of a uniform law on the subject, and the further, advantage of enjoying the cheapest form of protection which was ever given to property of this kind. It will not cost him a single sixpence to reap all the advantages which will flow from this Bill. He will get them by virtue of being the author of an article or of a musical work, or of a book. The measure will simplify matters very much by abolishing all those subsidiary forms of copyright^ such as performing rights or lecturing rights. As the law at present stands a man may sell his performing right, his dramatising right, or his lecturing right. In future, copyright will cover everything. The possessor of a copyright will be able to sell the right to dramatise, translate, perform, or deal in any other way with his production. Copyright will be more extensive than it was, and will cover all forms of literary, dramatic, and musical expression. The simplification of procedure is such as to almost abolish it entirely. There is provision for registration, but that is not compulsory. Advantages will be given by registration which we hope will prove sufficient to induce persons to register, and some remedies will be obtainable only by registration. But so far as copyright, as a definite property right, is concerned, it will be obtained without registration. The law will put its protecting cloak over every author by reason merely of the fact that he is an author. The Bill brings our legislation into line, not only with that of Great Britain, but also with that of the other countries belonging to the Union. It will remove certain anomalies, and will extend trie duration of copyright from a period of seven years, and the lifetime of the author, to a period of fifty years and his lifetime. The author’s family, or the family of the holder of the copyright, will be amply safeguarded, and, generally speaking, the measure is an enlightened, effective, and simple piece of legislation, which should commend itself to the House.
.- The AttorneyGeneral very properly recommends the Bill for the acceptance of honorable members, because it is the result of a great deal of consideration by the Imperial Parliament, and by representatives of the Commonwealth, too. Several Conventions and Commissions have dealt with the subject of copyright. I have here the report of the Copyright Committee that sat in 1909, on the text of the Convention entered into in 1908 at Berlin, and submitted for the consideration of the Imperial Parliament. It refers to the previous efforts made by nations to come to an understanding as to what should be the basis of the protection for the fruits of men’s brains when published in the form of books, which is the generic term used to cover all publications. It was found that before the Convention of Berne, in 1886, the copyright law, not only in the United Kingdom, but throughout the world that is affected by copyright, was exceedingly complex. I notice in the report of the Commissioners of 1878 that it is mentioned that the first observation they had to make was that a study of the existing law suggested that the form, as distinguished from the substance, seemed to be bad, that the law was wholly destitute of any sort of arrangement, incomplete, often obscure, and even when intelligible upon long study was, in many parts, ill-expressed, so that no one who had not given such study to it could be expected to understand it. They went on to mention that the common law principles were very unsettled, and that there was such a number of Acts of Parliament conferring different rights in England that it was very difficult for even the keenest student to understand, in relation to everything that was covered by copyright, what actually was the position. That led to the Convention of 1886, which was modified subsequently by the Act of Paris, to which the Attorney-General has referred. The Act of Paris was adopted only by some of the parties to the Convention of 1886. Confusion was introduced thereby, because some of the nations that were parties to the Convention were bound simply by the law adopting the Convention, and others were bound both by that Convention and by the Act of Paris of 1886 or 1887. The next attempt to bring about uniformity, at all events within the Empire, seems to have been made about 1900. I remember looking up the matter in connexion with instructions sent Home to Lord Tennyson. It was about the last day that I was in office that a memorandum was sent to him by the Attorney-General’s Department containing final instructions as to the position he should “assume as the representative of the Commonwealth at the Imperial Conference on the subject of copyright, which met in March or April, 1910. I remember, on looking through the dockets in the office, discovering that, about 1907, communications were opened between the Colonial Office and the Commonwealth. It was then pointed out that the Imperial Act was expiring, and that it would be necessary soon to take steps to determine what would be the conditions and terms of the new law ; whether, as previously, it should be applied to the whole of the British Dominions, reserving to us the power to pass an Act applicable purely to local copyright, or to make such additions to the rights granted by the Imperial Act applying throughout the Dominions as we might think fit. I take it that the position was to be this : The new Act to be passed by the Imperial Parliament would be the basis of Imperial uniformity. Did we choose to adopt it, we should bring ourselves within the terms of the Berne or any subsequent Convention ; in other words, as a part of the British Empire, which was a party to the Convention, we should reap the benefits of the reciprocal arrangements and protection accorded to its signatories. We could also pass a local Act conferring copyright within the Commonwealth in respect of works first published within our borders ; we could also have added to the protection given by the Berne Convention and by the British Act adopting it, but so long as we wished to enjoy the benefits of the Berne Convention, we could not cut down the rights granted by it. The question arose : How should Imperial uniformity be extended or preserved? The Colonial Office thought .that there was no chance of passing an Imperial Act to be obligatory throughout the Dominions, because, apparently, Canada Had objected. It was contended by Canada that the
Canadian Constitution Act of 1867 gave her absolute and practical independence in regard to copyright. That point was raised in connexion with one or two amendments of the Canadian law. It was contended that the powers given by the Constitution Act were plenary as regards the Imperial Parliament, and not merely, as the best opinion seems to be, as regards the provinces of Canada. An Imperial Act may at any time be passed to cancel the legislation of the Colonies; but when we deal with the relations of the Imperial power to the Dominions, we are in the habit of considering what is called constitutional power as distinguished from mere technical or legal power. The power of the Imperial Parliament is held in reserve, to be used, as a matter of practice, on behalf of the Dominions when they solicit its exercise. That power is never exercised to cancel a grant that has been made; or, if so exercised, it must be at the invitation of a selfgoverning Dominion wishing a modification of some part of its Constitution or legislation. Canada contended that the Imperial Act of. 1867 gave her, by necessary intendment, absolute power, and that she could modify the provisions of an Imperial Copyright Act, or, rather, pass legislation inconsistent with it; in other words, that it was outside the Colonial Laws Validity Act, which provides that when legislation is passed by the Imperial Par.liament that extends to the Dominions, the Dominions are bound. But the Imperial Parliament does not expressly extend its Acts to the Dominions unless Imperial interests are involved. It never does so when the interests involved are purely local, because that would be a derogation from selfgovernment ; and the constitutional etiquette is that a grant of self-government once made is never recalled or modified, except at the invitation of a Dominion. It was necessary, in the case of Australia, to ask for a recasting of States Constitutions, in terms of the Commonwealth Constitution which .was enacted at our request by an Imperial Act. Trouble arose from trie claims made by the Dominions, with the result that the Colonial Office was in a bit of a fix as to how to bring about uniformity, and I think the matter was shelved. In 1908, the Berlin Convention was published, and attention was then directed to ascertaining the extent to which the United Kingdom should fall into line with its proposals. Assuming that .the convention was adopted, the question was how were the Dominions to be bound? A suggestion made from Australia, during the time of the last Government, was that an Act might be passed by the Imperial Parliament binding all the British Dominions in the terms of the Convention; and that each self.governing Dominion should have power to declare it would not apply, or to declare that, either in part or subject to such modifications as might be prescribed, it should apply within the boundaries of that Dominion. In other words, it would have been better if an Imperial Act were passed at once with power to reject or modify - it would be more conducive to uniformity - than the method subsequently adopted of leaving it to the Dominions to adopt an Imperial Act by specific legislation. What the Commonwealth had in view was the difficulties that had arisen in connexion with Canada. There was doubt whether Canada would be a party to the Convention of 1908. It was said that no self-governing colony would be likely to declare, by not accepting: the Imperial Act, that it was not a party to the Convention ; at any rate, there was more difficulty in connexion with cancelling the application of the Act to the Dominion, than in leaving the Act to be adopted by specific legislation. The late Mr. Batchelor, when Minister of External Affairs, mentioned that a cablegram arrived about eighteen months ago from the Colonial Office, or some branch of the Imperial Government, stating that the Imperial Government did approve of the suggestion which came from the Commonwealth. Why it was not adopted I do not know, but probably Canada objected. We, therefore, find ourselves in the position that we are asked to adopt an Imperial Act, which came into force at the end of last December, and which was the result of a great deal of forethought and compromise on the part of the representatives of the Empire. I mentioned this because there are many provisions of the Bill to which I personally would object, and to which the Commonwealth did object by memorandum to the Imperial Government. Personally, I thought the duration of the copyright was too long. There are no men more inflammatory, at times, than publishers on this subject. I have read many of the speeches reported in the Bookseller and other publications, as delivered at publishers’ dinners and so forth, and from these one would think that at no period was copyright the result of statutory provision, but rather that the protection was absolutely inherent in the work itself. That, of course, is not the case. During the greater part of the existence of copyright, it has depended on statute, and not on common law. However, the publishers came to the conclusion that whenever the duration is limited, some one is being robbed of something he has enjoyed as an inherent right. I personally take a different view, and it would have been perfectly competent for us to limit the period to twenty-five years, thirty years, or forty years, instead of the fifty years arranged, in addition to the life of the author. At the same time, with a view to uniformity, and remembering that the Imperial representatives at the Convention in Berlin in 1908 had discussed these matters elaborately, it was thought inexpedient for the Commonwealth to suggest a shorter period than that adopted in the United Kingdom. We should then have fundamentally differed from other parts of the Empire, and would have been outside the Berlin Convention. I mention this to disarm what might be adverse criticism of some of the provisions of the Bill, because they are really the result of a good deal of discussion both by the Imperial Government and the Berlin Convention. I noticed that during the passing of the Bill through Committee in the House of Commons a great many drastic amendments were made, and that several were made even on the report stage, which emphasizes what I have mentioned as to. the exhaustive consideration given to the measure. Some of those amendments we must assume were made in the light of communications from the self-governing Dominions. One question that arose between the Imperial Government and the Commonwealth was that of registration. We insisted on registration in connexion with remedies for infringement of copyright, and particularly in connexion with foreign copyright. Registration has its advantages. The right of action depends on registration, and it identifies the owner of the copyright. On the other hand, the rules and formalities of registration were not the same throughout the various countries that were parties to the Berlin Conference. There were formalities in some countries not the same as required by other countries who were parties to the Convention, and the result was that in many cases technicalities deprived men of rights, and led to piracy. That was the case also in America. Time after time, on the mere fact that technicalities had not been complied with in regard to registration, copyright was lost in various countries. This was a matter referred to by Lord Thring, who is head, I believe, of the Imperial Parliamentary Drafting Department, after the Act came into force; and I may refer honorable members to a quotation from his opinion on parts of the Act a little later on. There were also conditions in regard to printing in the case of Canada which were considered obnoxious, and which would prevent uniformity. At all events, the result has been that the provisions of our measure in regard to registration have been modified, and we have fallen into line with the Imperial Act and with the Convention of Berlin. Lord Thring, in an article in the June number of the Fortnightly Review, gives a very excellent synopsis of the Act, coupled with some criticisms of its provisions. When reading this, I made a note, summing up the chief effects of the Act. Lord Thring pointed out that it gave the sole right to produce and reproduce the work to the owner of the copyright ; to produce or reproduce any substantial part of the work in any form that he might adopt ; the performing right, and right to deliver a work or a substantial part of it ; translation rights ; the power to dramatize a novel, and, conversely, to turn a novel into a drama. In the case of a dramatic or musical work, it gave the right to make a record or other mechanical contrivance by means of which the work might be performed or delivered; the power to authorize such acts ; and, in addition, copyright was extended to what the Courts had declared could not fall within the principle of copyright. The Attorney-General has mentioned mechanical productions of musical compositions such as reproductions by pianola records, to which I shall make a short reference. Architecture has been added to copyrighted work ; and there was a good deal of discussion as to whether this form of art could be protected. Plans are already protected, and it is the design of the structure that is now supposed to be copyrighted. The Commission of 1878 criticised the inclusion of architecture, and suggested that it should not be protected. In reading the discussions in the press during the passage of the Imperial Bill through Committee, I noticed that very strong remonstrances were made by the Spectator and other influential weeklies, against the inclusion of architecture. In the dissents to the report of the Copyright Committee of 1909 there is one by Mr. Henry Clayton to the inclusion of architecture, and there is another by Mr. W. Joynson-Hicks, the latter of whom gives more elaborate reasons for his attitude. Mr. Joynson-Hicks says -
There are three main points upon which I am unable to accept the recommendations of the Berlin Convention, first as to architecture; secondly, as to piratical translators or adapters; and, thirdly, as to the extension of the period for copyright.
The extension of copyright to architecture itself apart from the actual plans from -which the subject-matter of the architecture is built on an entire innovation, and one, I venture to suggest, exceedingly difficult to carry out in practice, and one which might be very detrimental to the progress of building construction.
Every century sees an advance in the methods of building construction - witness, for instance, the steel frame-work and the ferro-concrete buildings of the last few years - and if the form of the building is to be the subject of a 50 years’ copyright, I see no reason why the method or material should not be the subject of a patent for an equal term. In effect, it seems to me that if the provisions of the Berlin Convention had been in existence from the beginning of history, they would have tended to prevent improvements in architecture to the detriment of the public and without any commensurate advantage to the author.
There are other matters referred to, but I pass from them to mention that Mr. T. E. Scrutton, K.C., one of the chief writers on copyright, who ought to know what he is writing about, adopted the criticisms and conclusions I have just read, and in a short dissenting note, says -
I agree that the report accurately states the decisions of the Committee, and I generally concur in those decisions. But I have a strong view against the inclusion of architecture as a subject-matter of protection. I see great difficulties in the trial of what are now new and original houses or features of houses, and equal difficulties in the remedies for infringement; and I agree with the view of the Commissioners of 1878 that architecture should , not be included.
I referred to the Commission of 1878 designedly, because one of the matters discussed there was the inclusion of architecture, and it was rejected without hesitation. There are some other matters to which I might refer. I notice that there is a provision in regard to infringement; and it is set forth that where the infringement is without the knowledge of the transgressor - an innocent infringement - he escapes some of the penalties. Lord Thring, referring to this, says that it raises a very serious difficulty. This quotation refers altogether to summaries in newspapers of lectures and other publications -
After the proviso follow the acts of infringement. Here begins a difficulty, and what may be to all owners of copyright property a serious difficulty. We refer to the fact that to constitute an infringement the transgressor must have knowledge that he is transgressing. This, is indeed, a drastic amendment limiting and restricting an author’s power of protecting his property. It is the more serious because it curtails a liberty which was held under the old Acts. It is a step of retrogression, not of progression. It will give security to the careless editor and publisher, the manager of a theatre, the purlomer of artistic values.
However, we have to adopt the terms, whatever our opinions may be; otherwise we shall be outside the Convention. The question of mechanical records is one to which I should like to direct attention. I have endeavoured to show that the Imperial Act is not perfect. Lord Thring shows this in a criticism, though he, nevertheless, urges its adoption. I think a doubt is created in the Imperial Act as to whether persons who purchase records, such as pianola records, in England under the terms of the English Act - that is, who have taken advantage of section . 19 of the Act - there is a doubt whether a person who has purchased such records in England from the owner, and in respect to which the royalty has been paid, can bring them out here without defeating the rights of an assignee of the copyright in respect to Australia. Section 5,. sub-section 2, of the English Act provides that -
The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to the United Kingdom or any self-governing dominion or other part of His Majesty’s dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent.
Then follows a long proviso. It is further provided in sub-section 3 that -
Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee as respects the right so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly.
Honorable members reading those provisions for the first time would come to the conclusion that if a man assigned, say, the Australian rights in his copyright, by that assignment, if there is no limitation, as the Act provides there may be, he gives every right which the copyright gives. What are those rights? Section 19 of the Imperial Act provides that -
Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works, but the term of copyright shall be fifty years from the making of the original plate from which the contrivance was directly or indirectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of the work. . . .
Then sub-section 2 declares that -
It shall not be deemed to be an infringement of copyright in any musical work -
And this is important - for any person to make within the parts of His Majesty’s dominions to which this Act extends records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves -
In other words, the owner of a musical work can, speaking generally, prevent its reproduction by mechanical device, but if he has previously assented, either by acquiescence or expressly, to such contrivance being made, then the person concerned may give notice to him that he desires to make those records under the terms of the Act, which would mean paying a royalty of 2½ per cent, for two years, and 5 per cent, afterwards, subject to such modification as the Board of Trade, in the light of experience, may, on application, think desirable. It may be said that when a royalty is paid for permission to manufacture these records, the records may be sold in any part of His Majesty’s Dominions. Sub-section 2 provides that -
It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty’s dominions to which this Act extends records, or perforated rolls, provided that certain things are proved, and this being an Act to bring about Imperial uniformity, the copyright conferred by it in England inures throughout the Empire. It may then be said, and this is a very important matter, that if a man purchases in England, without breach of copyright, recordsthat have been made under the terms of the? Act, he ought to be allowed to import them, into Australia. That, I believe, is the intention. I have discussed this matter with lawyers who are interested in some of thesecompanies, and I have had a chat with officers in the Attorney-General’s Department, with the object of ascertaining what, view is taken by them. The AttorneyGeneral’s view of the matter seems tobe that section 19 means that where thecight to reproduce these records hasbeen given in the United Kingdom, and royalty has been, paid there, the recordspurchased there under that permission can be brought here without breach of any of the legal rights of an assignee in the copyright. In other words, he seems to hold. the view that, although an assignment of the Australian rights might have been made, that assignment would be minus the right to prevent, through notice to the Comptroller-General of Customs, under clause 10 of our Bill, the importation of those records as being a breach of the Copyright Act, or under the Act to restrain the sale. It is said that, after paying for the rolls at Home, and complying with the conditions of the Act, a man who imported them into Australia would not come under clause 10 of our Bill, which provides that - (1.) Copies made out of the Commonwealth’ of any work in which copyright subsists which, if made in the Commonwealth would infringe copyright, and as to which the owner of the copyright gives notice in writing by himself or his agent to the Comptroller-General of Customs, that he is desirous that such copiesshould not be imported into the Commonwealth,, shall not be so imported. . . .
They are to become prohibited imports. In other words, if the owner of a copyright gives notice to the Comptroller-General that the records have been brought in, then, their importation can be stopped if they cannot be imported without breach of copyright in the place from which they are’ being imported. But it is said that, inasmuch as the mechanical records are made in England^under the terms of the Imperial Act, and are not in breach, but really inrecognition, of the copyright, in England, they cannot be made prohibited imports under this Bill, because they would not be within the words “ which, if made in the Commonwealth, would infringe copyright.”” That would not be an infringement of theImperial copyright ; nor of the local, if theassignee took no rights under section 19. All I can say is that the meaning- of section 19 is not clear, since, under another part of the Imperial Act, power is given to assign the Australian rights, or the rights of any other part of the British Dominions, either absolutely or in terms, with certain reservations. If that is so, it would seem to be a matter of logical deduction that whatever the copyright gave went with the assignment, unless the limitation was put in. One of the rights given by that assignment may be the right to prevent the reproduction by mechanical device of the musical work. That would seem to be one of the things covered by the assignment, if the assignment does not expressly reserve it. It may, therefore, foe said that if ^10,000 or £15,000 worth of records were brought into Australia - records that were properly made in England under the provisions of the Imperial Act, and on which royalty had already been paid - the assignee of the Australian rights might demand another royalty, or ask the Comptroller-General of Customs to prohibit their importation. If that is to be the interpretation, then, in :some cases, the royalty, instead of being 2 per cent, for the first two years, and 5 per cent, thereafter, might amount, according to the number of places in respect of which there had been an assignment of the copyright in these musical works, to 20 or 25 per cent. I believe, however, that that is not the intention of the Imperial Act. At the same time, I cannot accept 4he view taken by some that the matter is clear. In order to render it clear, an amendment was moved in the Senate. I do not know what was said there, but I understand that objection was taken that there might be an infringement of the rights of an assignee; that an assignee in New Zealand, for instance, might find his rights affected; that he might find that copyright in his musical works had extended to restrain the local sale of records in England, :and that royalty had been paid there. The assignee, however, should protect himself. He would know the facts. If he were buying something which had been the subject of reproduction, and distributed throughout the Empire, he would know how much less he ought to give for the assignment on that account. If it had not been reproduced, he would know what it was worth, and he could provide in the assignment that there was to be a grant of the right to reproduce those things in New Zealand. The grant ought to be made by the owner of the copyright. As to all these things a man can protect himself. The view taken, apparently, in the Senate was that the proposal would be unfair to an assignee; but the deliberate opinion of the AttorneyGeneral’s Department seems to be that the assignee has no claim. In other words, theopinion of the Department appears to be that the Imperial Act does protect these records throughout the Empire, and gives the right, as long as the licence is granted at Home, to send them to any part of the British Empire. If there is a legitimate doubt about the matter, it ought to be removed. I have here an amendment, which I shall suggest as an addition to clause 10, in effect declaring that that clause is not to apply to the importation of records which have been properly manufactured under the provisions of the Copyright Act in the United Kingdom, or in other parts of His Majesty’s Dominions, and also one to modify clause 14. I hope that the Attorney-General will insert some provision, not in any way modifying the provisions of the English Act, but merely declaring what we mean to be prohibited imports within the terms of our Bill. It is at least doubtful whether the assignee could not, through the Comptroller of Customs, prevent the importation of records from England, which have been made and paid for in accordance with the terms of section 19 of Imperial legislation.
– The matter has been brought under my notice. I think that the law is quite clear, and will conserve the rights of persons who have purchased those rights from their original owners.
– I am sorry I cannot agree with the Attorney-General that the law is quite clear. At one time I did think that it was beyond all reasonable doubt.
– .Does the honorable member fear that a man may have to pay two royalties ?
– Yes. It is a matter which will be raised if this Bill be passed without some declaration as to what we mean.
– I quite agree that the British Act is not clear in its draftsmanship in regard to several matters.
– One matter which the Imperial authorities have overlooked relates to the conditions which obtain in the Dominions. I know that two or three memoranda were sent Home on the subject of copyright, and I think that, in 1908, the
Attorney-General himself made some suggestions. I know, too, that I supplemented them. But to make those suggestions was utterly useless. The matter had been arranged by the Berlin Convention, and the suggestions seemed to have been ignored in the discussions which took place in the Old Country. If we now have power to make doubtful matters clear, without departing from uniformity, it is our duty to do so. We must recollect that a very large number of persons will be affected by this Bill. There is scarcely. a home in Australia in which there is not a piano. It is not every one who can devote to the study of the piano the extensive time that is necessary to the production of great classical works. As regards works mechanically reproduced by records, intended for use on the piano and organ, a great number of them are classic. They are works which, according to musical coteries, are assumed to be classic, or they are classic in the sense that every work of Mozart or Beethoven is classic. There are, therefore, great opportunities for diffusing a high musical education throughout the masses of the people. We ought to encourage the diffusion of musical culture by means of records. It may, of course, be that these records are not quite so conducive to higher culture as most persons think. One of the sonnets of Shakespeare says -
So may I as the rich whose blessed key,
Will bring him to his sweet uplocked treasure,
The which he will not every hour survey
For dulling the fine point of seldom leisure.
If we listen to, at all events, mediocre music too frequently we lose our relish of it, because half the pleasure of music arises from an expectancy of a somewhat - but not perfectly realized - developing form. With mediocre musical works a complete familiarity, and consequent surfeit, is possible, which is not possible with classical works. The finest sensibility may be dulled by too frequent repetition. There is one provision in this Bill which I regret to find there. It will permit, for instance, the alteration of a musical work within certain limits, so as to facilitate its reproduction. Some of the finest works of Beethoven have been clipped about in order to make them fit musical devices. I have heard some of the divinest melodies of Mozart completely altered to meet certain mechanical devices. Very properly objection was taken at Home to altering, within certain limits, the musical form of a great composition in order to render it capable of reproduction. Alt these matters, however, have been threshed out, and we have to accept the Bill as it is presented to us. I hope that the AttorneyGeneral will not encourage lawyers to bring about litigation in matters relating to musical culture. I think that the Act’ as a whole is a very good . one. It has* made some matters fairly clear, and, ifI may apply the words of Mr. Comyns Carr, which were spoken at a meeting of Imperial’ authors immediately after it was placed; upon the statute-book, I would say -
The present Act is the largest instalment of justice that has ever been conferred on literature by the Parliament of England.
As such I shall welcome the adoption of the measure which is now before us.
Question resolved in the affirmative.
Bill read a second time.
In Committee.
Clauses1 to 7 agreed to.
Clause 8 -
The British Copyright Act, a copy of which* is set out in the schedule to this Act, shall, subject to any modifications provided by this: Act, be in force in the Commonwealth, andshall be deemed to have been in force therein* as from the 1st day of July, One thousand nine.: hundred and twelve.
– I understand that the adoption of theBritish Copyright Act will not preclude usfrom dealing with various sections of thati Act in the schedule. The consideration of this clause ought really to be postponed, until we have passed the schedule to the.Bill.
– It is subject to any modifications that we may make.
– The Bill does>-. does not say so. I would suggest that theclause should be postponed until the schedule to the Bill has been dealt with.
– I cannot agree to thehonorable member’s suggestion. In this– Bill we adopt the British Copyright Act. We must adopt it as a whole or not at all. That being so, no useful purpose will beserved by postponing the consideration of this clause.
– I admit that the adoption of the British- Copyright Act is desirable, subject to such modifications as may reasonably be adapted - to our own local circumstances. But I wish to suggest for the consideration of theAttorneyGeneral one or two points which-./ have arrested my attention. Sub-section 2 of section 1 of the schedule says -
For the purposes of this Act, “ copyright “ means the sole right to produce or reproduce the work or any substantial part thereof in any material form “whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public, &c.
I think that section 34 of the Copyright Act of 1905 differs materially from the wording of that provision. The words which are there used are, I believe, more valuable than are those which are employed here. We all know that large sums of money are often paid to an artist to make a design which may be a very beautiful one. That design may either be used in cathedral windows or in carpets.
– This Bill does not apply to designs at all, nor does the Imperial Act.
– I wish to show that the English Act is too limited in this connexion. A great artist may be employed to furnish a design for a cathedral window, a carpet, a ceiling, or anything else; but section 22 of the English Act says that the Act shall not apply to designs capable of being registered under the Patterns and Designs Act of 1907, except designs which, though capable of being so registered, are not used or intended to be used as samples or patterns to be multiplied by any industrial process. Designs intended to be used for commercial purposes cannot be protected by the Copyright Act. That provision is unjust to enterprising men, who pay highly to secure the designs of great artists, because a design registered under the Patterns and Designs Act is protected for five years only, and more than that period may elapse before it can be made sufficiently popular to enable its producer to reap the reward of his enterprise in securing a great artist to make it.
– Under the Designs Bill, with which we dealt early in the week, the registration of a design may be renewed for two periods of five years each, so that the design can be protected for a continuous period of fifteen years.
– That answers my objection.
Clause agreed to.
Clause 9 agreed to.
Clause 10 (Importation of Copies).
.- An amendment should be made in this clause to make clear the law in regard to mechanical records of music. The clause provides that copies made out of the Commonwealth of any work in which copyright subsists which, made in the Commonwealth, would infringe that copyright, and as to which the owner or assignee has given notice, maybe declared to be prohibited imports. I ask the Attorney-General to make it clearthat the importation of records properly^ made and paid for under agreement with, the holder of the copyright in the Old Country may not be prohibited at the instanceof the Australian assignee of the copyright. It is said that the meaning of theclause is clear, but I do not think that it is. Under section 19 of the Imperial Actit is not to be deemed an infringement of copyright in any musical work for any person to make within the parts of HisMajesty’s Dominions to which the Act extends records, perforated rolls, or other contrivances by means of which the work maybe mechanically performed, if certain conditions have been complied with. The assignment of a copyright may be partial or complete. When an assignment is made, does it not include the right to prevent the. importation of records or other contrivances: for mechanical performance? I do not think that the Imperial Parliament intended1 that more than one royalty should be paid’ in respect to the production of these records ; but it is surely inexpedient to leavethe matter open to doubt. The rights of the assignee are mentioned in other partsof the Act ; for instance, sub-section 7 of section 19 deals with musical works, and in* respect to those published before the commencement of the Act, the provisions relating to mechanical reproduction are not identical with those in respect to works published after the commencement of the Act.. It is stated that, notwithstanding any assignment made before the passing of theAct of the copyright in a musical work,, any rights conferred in the making, or authorizing the making, of contrivances for mechanically performing it shall belong tothe author or his legal personal representatives, but not to the assignee. That provision creates an exception, and it is an old* principle of construction that an exception proves the rule ; that is, that you cantell by means of the exception what the rule is intended to cover. The rights of* the assignee being limited in a particular case, the inference I draw as to his rights, to royalty in other cases is strengthened. At any rate, the position is open to reasonable doubt. Suppose, for the sake of example, that a copyright were issued ini respect of one of Elgar’s works, and thecomposer assigned his Australian rights, would it be held that in doing so he did not assign the right to prevent mechanical reproduction of the work? Where -is it provided that that right is not included in an assignment which is without limitation. On the other hand, it may be -said that the whole principle of Imperial copyright is that the copyright inures 4hroughout the Dominions ! If copyright were granted in respect of a book published -at home, copies of which were imported into Australia, could the assignee of the ^copyright here prevent their importation? He could not. Why? Because the Imperial copyright would cover the right to -export them to any part of the Empire, and their importation into Australia could not rbe prohibited at the suit of an assignee of the copyright. Why, then, at the suit of -an assignee of a copyright in a musical work, should the importation of mechanical ^records be prohibited? But if, before (mechanical records of a musical work were produced in England, an assignment was -made of Australian rights, and the assignee -of the copyright here had prevented the rmaking of such records in Australia, he might with some force claim the right to get the Minister of Trade and Customs to proTiibit the importation of records, on the -ground that their importation would be to ;the detriment of his copyright.
– Does the honorable member suggest that an assignee here of a copy-
Tight obtained in England is in a different position from an assignee in England of a -copyright obtained in Germany?
– I do not think that he ns.
– How does clause 10 -differ from section 14, of which it is an adaptation ?
– It does not differ.
– Then the position of an assignee here would be exactly the same as that of an assignee in Great Britain.
– If a work were mechanically reproduced for the first time in Australia with the permission of the assignee -of a copyright, the importation of the records into England could be stopped by the holder of the copyright there, as being an infringement of his right, if one possible construction is correct. If an Australian copyright were assigned to a person in Great Britain, and mechanical records -of the work were made here under the provisions of the law relating to royalties, -could the Imperial Government prevent their importation into Great Britain as a breach of the Australian copyright? The Attorney-General has asked me a question ; I would like him to answer that question.
Sitting suspended from 6.30 to 8 -p.m.
– Those who buy mechanical reproductions of musical compositions, under honest assumption, are entitled to protection. However, I share the opinion that the greatest blot on the Imperial Act is in relation to such reproductions. It is a serious interference with a man’s property . that, under certain circumstances, reproductions are allowed with variations of some of the sublimest conceptions of musical genius. Lord Thring says -
In the original draft it was proposed to give to composers control over gramophone reproductions of their work made after the commencement of the Act, but for some reason (no doubt closely connected with trade pressure, which has always been a stumbling-block in the way of just copyright legislation, vide the American Act and the proposed Acts of Australia and Canada), the Government changed its mind and insisted on a compulsory licence if the composer allowed his work to be produced by any one on the gramophone or by any other process of mechanical reproduction. This change on the part of the Government is one from which the composer is likely to suffer very seriously, for with the modern pianola and the other forms springing up everywhere of mechanical reproduction, it is quite possible that in the near future the piano will not be played by human agency as in the past, but that the majority of the public will depend entirely upon mechanical reproduction for its music. In consequence, the composer will lose a profit previously open to him from the sale of his printed pieces, and will only obtain a forced royalty from the sale of mechanical reproductions. He will have no control over the method when he has once given his consent, and he will not be able to prevent bad records or unmusical appliances which may tend to destroy beauty and harmony of his work.
It must not be thought, however, that the composer does not gain anything, for under the existing law if was held by the Courts that mechanical reproductions were not infringements of copyright at all. To have gained this small advantage is to have gained something, but it is a blot on the modern development of copyright that for the benefit of the trade, the composer, and the composer alone, should have been deprived of the absolute control of the form and manner in which the copy of his work should be rendered. The Berlin Convention and the latest legislation of other countries has worked along the old ideas that the control of the author’s property must rest entirely with the author, and section 19 is retrogressive and not progressive legislation.
There is, as I said, some doubt as to whether, when an author has assigned his. copyright, and has granted, either before or after, a licence to mechani- cally reproduce the music, the royalty paid gives a right to sell records throughout the British Dominions, or whether, the copyright having been assigned in reference to Australia, we can stop the importation of records published or purchased under the English Act. My own opinion is - and it is only on a balance of doubt - that, if the right is granted and the royalty paid, the records, wherever purchased, may be exported and imported throughout the Empire. That is, I think, the opinion of the Attorney-General, though there is a doubt in the matter ; and I am endeavouring to put before the Committee the view taken by the advisers of the trade here. I tried to combat the doubts of the representatives of the trade, and to remove their anxieties, but I did not succeed; and I think there is a slight doubt entertained by the Attorney-General, though he does not express it, as to the clearness of the provision. What I ask is if, without breach of uniformity, we are entitled to make variation, so long as it is not of substance, we should make the matter clear if that can be done. Some years ago the question arose as to the validity of the Canadian Act of 1875 in connexion with copyright. That Act provided, I think, that works to be copyrighted in Canada must be printed in the Dominion, and there was some provision against the importation into Canada of works which had been copyrighted under the Imperial Act in the United Kingdom. Evidently the Imperial Government were advised that Imperial copyright included a right to export to any part of the British Dominions - that copyright granted in any part of the Empire would be reciprocally respected in every other part. It is significant that the Imperial Government had to pass an Act to validate the Canadian Act, which, sought to prevent, as being piratical invasions of the Canadian copyright, the importation of books published under the Imperial copyright. That seems to me to be in line with the position taken by the Government - that if a royalty is paid in any case, it authorizes the export throughout the Dominions; and I tried to put this view to the advisers of some of the pianola, cinematograph, and gramophone houses, but without absolutely convincing them. I think it is due to those people, in dealing with rather an intricate matter, that impressions to the contrary should be put to honorable members. I should like to know what the Attorney-General thinks about the mat ter - whether, if there is reasonable doubt,, an amendment could not be madein clause 10. It would be necessary, also, to modify, for local purposes, the Imperial Act, because clause 10 dealsonly with importation. The goods, however, may come in, and still the assignee of the copyright may challenge the right tosell, or to issue, and call into force the punitive or forfeiture provisions of the Act. Another consideration is that patents are? not subject to uniform legislation throughout the Empire. I am speaking subject tocorrection, but I think that the granting of a patent at Home does not confer aright throughout the Empire; in other words, an Australian patentee might object ; and this is an element one has to* consider. There is, however, uniformity in regard to copyright, and all I ask is that, if there is a doubt, it ought to beremoved by some declaration that section 19,. of the Act shall be deemed to mean thatthe payment of one royalty shall confer th6eright to sell throughout the British Dominions which have adopted the ImperialAct.
– Would that interferewith the Tariff?
– No;. we are dealing only with copyright, which relates to the sale of~ a man’s product. Assuming there is noTariff, their coming in would be a breach, of the copyright law, and their importation could be prevented quite apart fromany duty, though, of course, a duty of rooper cent, might prove as effective.
– I thought the honorablemember was contending for the free right: of entry.
– All the goods would be subject to our fiscal law. What I am suggesting is that, wherever the copyright isgranted, it shall authorize the sale throughout the British Empire. The point iswhether, if a man assigns Australianrights, this does not enable the assignee todemand an additional royalty; and, on thewhole, I am inclined to think it does not.. I confess there is some doubt in the matter, . and I ask the Government, if they sharethat opinion, to remove the doubt by anamendment of clause 10.
– No doubt there issome doubt and difficulty in the matter, but I submit that, if the view of the honorable member be one that, on the whole, can be sustained, the proposal he makes is.- quite futile to remedy the evil. The honorable member proposes to amend clause 10.
– And also section 14 of the Act.
– We cannot make an amendment in an English Act. If we could, I admit very cheerfully that one might be pleased to do so.
– Why cannot we?
– First of all, the honorable member for Angas admits that the matter is in doubt, and he is by no means certain that the view he puts forward can be sustained. It is perfectly obvious, however, that clause 10 deals with importation - it does not concern the right to sell in the Commonwealth. The sale is the infringement - it is that right which is infringed.
– I said- that.
– No amendment of clause 10 would help us. It is sub-section 2 of section 2, and section 19 of the English Act that hinder the honorable member.
Sub-section 2 of section 2 provides that -
Copyright in a work shall also be deemed to be infringed by any person who -
That bears directly upon the honorable member’s proposal. Section 19 deals specifically with this particular class of articles, and seeing that, at best, the construction contended for by the honorable member is not clear and certain, but that the view taken by the Government is at least as compatible with a fair construction of the section, it is impossible to agree to the only amendment that could be made - an amendment of clause 10. Such an amendment would not help the honorable member, and any further amendment could not be made. If it should appear, after experience of the Act, that the rights of persons to whom has been assigned, or who have bought from the owner of the copyright, the right to produce these articles in Australia, are not fairly and properly safe guarded, representations will be made to the Imperial authorities, with a view to such an amendment of the Act as is proper in the circumstances. That seems to be all that can be done. I am bound to say that not only in this, but in other sections, the drafting of the Act leaves a great deal to be desired, and that the field for litigation seems to be most prolific. I ask the honorable member for Angas to accept the assurance that the view held by us is that the construction which he places upon the clause is not, on the whole, sustained, but that if it be as he says representations will be made to the Imperial authorities, with a view, if possible, to the making of such an amendment as the circumstances warrant. This is an entirely new provision. Even in England the Act has been in force only a few months, and it is less likely to create trouble there than here, since the owners of a copyright in this particular are likely to reside in the United Kingdom. A case in this connexion has not, so far as I know, come before the English Courts ; but I ask the honorable member to accept my assurance that if it should appear that the rights of persons in this country who have purchased Australian rights from the owner of the copyright are in jeopardy, representations will be made to the proper quarters.
.- I am perfectly satisfied to accept the assurance of the Attorney-General. I again say that I am not contending that the construction I have put forward is the right one. On the balance of opinion, I think it is wrong, but there is certainly a doubt about the matter. The assurance by the Attorney-General that, if it be found that the Australian position is detrimentally affected, representations will be made to the Board of Trade to so amend the Imperial Act as to insure that only one royalty will be paid throughout the Empire, ought to allay anxiety. I have only to add that I had intended to move two amendments to modify the Imperial Act as well as our own Bill, because I recognised that the stopping of imports would not be sufficient for the purpose.
– I do not profess to be able to follow the honorable member for Angas in the very able speech that he has delivered on this important question, but it seems to me that unless we are very careful it is possible that Australians may suffer a wrong under the English Act which is made a schedule to the Bill. Picture shows are at the present time one of the most popular forms of entertainment, and I take it that proprietors of such entertainments pay under the English Copyright Act for the films which they import. If the English owners of these copyrights may make an assignment of their Australian interests, with the result that a second royalty will have to be paid, an injustice will be done to people in Australia. I think this Parliament ought to be prepared to go to great lengths to protect Australians from being called upon to pay twice. Then, again, there may be enough latent talent in our midst to produce original work of the character which we are discussing, and if people in the Old Country paid for the Australian rights in such a production under our copyright law, they, too, should be protected as we ask that we shall be protected. Cannot the Attorney-General devise an amendment which will make it clear that no man under this copyright law will be called upon to pay royalty twice in respect of the same films? If he could do that we should be satisfied to allow possible complications that may arise from the decisions of the English Courts to develop. I fail to see why Australians who are interested in works of this character should have to run the risk of paying twice because of failure on our part to protect their interests. I understand that the Bill is introduced to obtain uniform copyright law throughout the Empire, and I recognise that that object is most desirable, provided that we can secure it without inflicting any injustice on our own people.’ We shall, however, be. open to a charge that we have not exercised due diligence in protecting Australians from a demand to pay twice under the copyright law unless we are very careful how we deal with this matter.
.- Whilst I quite appreciate the statement made by the Attorney-General, that the object of this Bill is to bring our copyright law into line with that of the United Kingdom, I see some difficulty in respect of this clause when I look at it from the Australian point of view. The clause as drafted is all very well from the British aspect, but from the Australian stand-point it seems to me that we ought to consider the position of the people in this part of the world, and to modify the law to suit our own purposes rather than to suit those of persons who are copy righting in Great Britain. For example, we can easily imagine an Australian firm purchasing the copyright of a popular song or a set of films in England, and under this clause securing a very large monopoly in Australia. Whilst I feel that we are bound in this case to accept the Attorney-General’s assurance that he will, if necessary, make representations to the British authorities, I submit that we should legislate according to Australian requirements, rather than be content to accept the honorable gentleman’s statement that the Bill has been drafted to bring us into line with the British copyright law, and that we cannot amend it in any way without breaking some agreement at which we have arrived at the Berlin Convention.
– We should not make away with our rights for the sake of securing uniformity.
– I quite agree with that point of view ; but the AttorneyGeneral has given us his assurance that he realizes that there is something to be said in support of the case put by the honorable member for Angas, and that even if this legislation is passed the Government will take care to put the Australian point of view before the British authorities in order to- protect, not the Australian importer of any popular song, but the Australian public, who are entitled to have the best in the world, whilst at the same time preventing piracy to the injury of the composer of that song. I do not wish to see any piracy going on. I desire to insure to the author of a popular song the fruits of his own brain. At the same time, the Australian public ought to be protected to the extent of preventing any person here from having a monopoly, and charging them just what he may choose, merely because he happens to have purchased that monopoly for a mere song on the other side of the world. As the Attorney-General cannot see his way to accept an amendment on the lines I have indicated, I hope he will make representations to the British authorities with a view to seeing that the Australian public are protected in every way.
Clause agreed to.
Clause 11 (Provision for reciprocal protection of copyright).
– This clause deals with reciprocal rights. I should like to know from the AttorneyGeneral whether the Dominions of Canada -and New Zealand intend to come into line with Australia on this subject? I understand that an agreement was arrived at by the Conference that that course should be followed.
– This clause seeks to -extend the operation -of the Bill in respect of measures concerning which an Order in Council has been issued. Sub-clause (2) makes pretty clear the scope and object of tthe clause. I dealt with this matter during the course of my speech upon the amotion for the second reading of the Bill. The limitation imposed is set out in subclause 3, which reads -
An Order in pursuance of this section shall only be made in case the Governor-General in -Council is satisfied that the part of the King’s -dominions in relation to which the Order is ^proposed to be made has made, or has undertaken to make, such provisions, if any, as he thinks sufficient for the protection of works “first produced or published in the Commonwealth and entitled to copyright therein.
This is a means whereby we may extend the provisions of the Copyright Act to those parts of the King’s Dominions which have not already adopted the British Act. By adopting that Act, we get the free run of the whole Empire, in addition to the free run of the whole of the countries which belong to the Copyright Convention. The -advantages to be thus gained aire very obvious, and this clause will extend, those advantages to those parts, if any, of the self-governing Dominions, which have not ^accepted the British Act.
– I understand that this clause is intended to cover the cases of the self-governing Dominions which do not adopt the British Act.
– It would not cover Crown Colonies, then.
– It would, I think, apply to Crown Colonies also : but the wording of “the clause is rather ambiguous. Subsec”tion (1) of section 30 of the Imperial Act provides -
An Order in Council under this part of this -Act shall apply to all His Majesty’s dominions to which this Act extends except self-governing dominions and any other possession specified in the Order with respect to which it appears to His Majesty expedient that the Order should not apply.
Provision is, therefore, made for reciprocal and limited copyright. If Canada does *not choose to adopt the British Act, we -may, under this clause, make special provision with that Dominion based on reciprocal treatment.
.- - I think that the clause is a fair one. It merely enables the Government to enter into reciprocal arrangements with other self-governing Dominions.
– Of course, the principle underlying the Act is reciprocity.
– In the absence of such a provision, a person would be able to pirate anything published in another part of the world without the author of it deriving any advantage. The clause is quite a safe one.
Clause agreed to.
Clause 12 agreed to.
Clause 13 (Saving of copyrights in certain works made out of the Commonwealth).
.- I am not sure what this clause is intended to cover. Its object is to extend the benefits of this measure retrospectively to 1905. If my memory serves me aright, I think there was some copyright which was not covered by our Copyright Act of 1905 - a copyright connected with artistic work. Possibly this clause is intended to apply the provisions of this Bill retrospectively to 1905, so as to validate rights granted under the Imperial Act.
Clause agreed to.
Clause 14 (Summary offences).
. - Does this clause merely adopt the procedure which is adopted in the Copyright Act of 1905, or does it introduce some new procedure in the matter of summary remedies?
– The remedies provided in the clause are remedies of a special nature; and of a summary character.
– They will apply to registered owners.
– They will be availed of generally by persons who have registered their copyrights. They are in effect identical with the remedies which are provided in our Copyright Act of 1905. They are such as experience has shown to be necessary and proper. In some respects they may be availed of only by the registered owners of copyrights. I have already mentioned that one of the most notable alterations recently made in the English law has been in the complete abolition of registration. That is certainly a most startling amendment. I am bound to say that it seems to me to create quite a new order of things. Whereas previously a person relied entirely on registration to establish his title to copyright, there is now no registration and no means of registering. We do not go so far in this Bill. We provide a means of registering, but registration is optional.
– If a person registers he will get the benefits which are conferred by clauses 15, 16, and 17.
– And clause 14 also provides one remedy which can be availed of only by the registered owner of a copyright. By this means it is hoped to induce persons to register their copyrights. Personally, I am inclined to think that a complete absence of (registration is calculated to create considerable difficulty in establishing one’s title to copyright.
Clause agreed to.
Clauses 15 to 20 agreed to.
Clause 21 (Part not to apply to works of architecture).
.- The English Act which we are adopting introduces a copyright which is new, so far as Australia is concerned, that is, a copyright in works of architecture; but the clause provides that part III., which contains a statement of the summary remedies for the infringement of copyrights, shall not apply to the infringement of a copyright in a work of architecture. There is another provision in the English Act, to the effect that when a building has been started an injunction cannot be obtained to prevent its erection should the design be an infringement of copyright; so that, apparently, the only remedy which the holder of the copyright possesses is an action for damages for any infringement. Perhaps the Attorney-General will explain the position.
– In my secondreading speech I mentioned that it is not easy to precisely define the limits of a copyright in a work of architecture; and, in view of the state of the law on the subject, I prefer to allow His Majesty’s Judiciary in Great Britain to blaze a track for us. No doubt it would be an infringement of a copyright in an architectural work to construct a building from a registered design without the permission of the holder of the copyright, and to copy the design would be an infringement. The remedy for infringement when the design has been used is an action for damages ; and when it is proposed to use a design without permission, application can be made for an injunction to restrain its use.
Clause agreed to.
Clauses 22 to 25 agreed to.
Clause 26 (Registration optional).
.- - Seeing that we have extended the application of our trade marks, designs, and patents legislation to Papua, I ask theAttorneyGeneral if it is not advisable toextend to that Territory the application of our copyright law. Should that not bedone by this Bill? Papua is a dependency of a self-governing Dominion, for which, we have power to legislate. The Imperial: Parliament does not legislate expressly for Papua.
– I think that this lawwill extend to Papua; but if it does not,, steps will be taken, by the introduction of. a short Bill, to provide for its extension.
Clause agreed to.
Clauses 27 to 37 agreed to.
Clause 38 (Delivery of copies to Registrar).
– It is provided by this clause that before a man can obtain copyright in abook he must have it set up and printed,, and deliver to the Registrar one copy, with, all maps and illustrations belonging to itr finished and coloured in the same manner as the best copies published, bound, sewn, or stitched together, and printed on thebest paper on which the book is printed- I take it that “ book “ covers a musical, composition. It seems to me that it should; be possible to obtain a preliminary protection of manuscript of any kind before publication. I have in mind the case of a mar* who wrote a song, and sent it to be printed, intending to copyright it; but the manuscript was never delivered to the person* to whom it was addressed. Later, someone else published and copyrighted thesong, and the writer had no remedy, because he had not preserved a copy, and) had obtained no attestation of his authorship.
– There must be a duplication of manuscript to prevent loss such, as the honorable member has described.
– Manuscript might be lostwhen it was being sent to obtain preliminary protection.
– Suppose thearticles sent by the Attorney-General tothe London press had been lost on thevoyage, the Labour movement of the worldmight have been adversely affected. It should be possible for a writer to obtain? preliminary protection of his manuscript without going through the expensive process of publishing it. Apparently, a man must be very well off to obtain copyright in a book. He must be very well off in addition to being very clever. Would it not be possible to give some protection to the manuscript of a book, or any production -of the kind in the process of being copyrighted ?
– What does the Registrar do with all these books?
– He has to keep them for reference purposes.
– Perhaps some of the copyright experts will tell us whether anything in the nature of the suggestion I have made is done in any part of the world.
.- We have all listened with mixed feelings to the harrowing details given by the honorable member for Parramatta in connexion with a long lost song. The present law is that, as soon as a man writes a book, or executes some particular work of art, the right of copyright exists in that work.
– It applies to an unpublished work?
– It is immaterial whether it is published or unpublished. The moment the work is done, copyright exists. But if by any chance there is any infringement the author cannot take proceedings until he has registered. I have been looking through the Bill to see how the law is altered, and it seems to me that, so far as registration is concerned, the troubles of the author are being accentuated. According to section 74 of the Act of 1905, the owner of a copyright is not entitled to bring any action for infringement unless his right or interest has been registered, but when the right has been registered, proceedings may be instituted whether the infringement has happened before or after registration. If the author has a copy of the manuscript, or by any means can re-write it, he has a copyright.
– But what if somebody else has registered the copyright?
– If the author can prove that it is his book or song, he can apply for a cancellation of the registration. Under the present law, registration seems to be a very simple matter, because it can be obtained in the manner prescribed by regulation, whereas under the Bill, the process is made elaborate and somewhat expensive. It is worth while considering whether these elaborate provisions are necessary. Under regulation, every facility, as a rule, is afforded, but under the Bill the author has to deliver to the Registrar a copy of the whole book, with illustrations finished and coloured, and so forth. Why should, a man be compelled to go to the expense of having the book elaborately printed and illustrated in order to secure registration? Why should he not be permitted to simply lodge a manuscript copy?
– Perhaps the idea is to have the book printed here.
– I hardly think that that is the beneficent object of the clause. Every person who makes an application for the registration of a work of art has to deliver a copy of the work, or some representation of it, and the Registrar may refuse to register until all the conditions have been’ complied with.
– It may be the desire to have the works reproduced here.
– That is not according to the present law, nor do I think it is sufficient reason for the proposed amendment in this respect. A man may write a book largely for the benefit of a few friends, or for his own reputation, and may not go to the expense of registration ; and, moreover, it will be observed that all this printing, and so forth, may involve serious loss of time before any right is given to take action for infringement. One can readily understand that the utmost expedition might be necessary in order to secure an author’s rights by legal proceedings; and, under the circumstances, the remedy would be seriously delayed. This is a matter which I think the Attorney-General might well consider.
– I shall be very glad to take any precautions that may be considered desirable after having heard the very pathetic story about a manusoript which was sent by a person who shall be nameless, but who is well enough known.. I remember myself one manuscript that had an adventure the like of which I trust will never be repeated ; and in future I propose to post all such documents myself. There is a distinction to be drawn between copyright and registration ; but copyright is independent of registration, and I make this announcement in the most public and unblushing way, and on that I take my stand.
Clause agreed to.
Clause 39 agreed to.
Clause 40 - (1.) The publisher of every book which is first published in the Commonwealth . . . shall . deliver, at his own expense, a copy of the book to the Librarian of the Parliament. . .
– This clause provides that the Library of the Federal Parliament, which will ultimately become the National Library of Australia, shall be furnished with a copy of every publication submitted for registration. In my opinion, something ought to be done in this way for the States, particularly the State in which a work is produced. Some provision is made for the States, which hitherto have had a similar law but, of course, that does not apply to all of the States. In New South Wales, South Australia, and possibly Victoria, there are State laws to that effect; but Queensland, Western Australia, and Tasmania have made no provision of the kind, i think the case might be met by requiring that an author shall lodge two copies with the Commonwealth Library, one of which shall be furnished to the State in which the work has been produced. My only desire is that all the States shall be treated alike. I shall be glad if the Attorney-General will look into the matter. I think that we should provide that the State Libraries of Queensland, Western Australia, and Tasmania should be entitled to receive a copy of every book published in their respective States, and have secured to them in that way the privilege that the State Libraries of New South Wales, Victoria, and South Australia have obtained as the result of State legislation. If the object which we have in view cannot be met in any other way, I shall move to provide for two copies, instead of one copy, being lodged with the Commonwealth Library authorities, who could see that the additional copy was forwarded to the Library of the State in which the book was published.
– Under clause 41 the law rights of the States are saved, and if any State has not a law of this kind it can easily pass one. If in three or four of the States of the Union there is no such law in operation, what is the use of providing that two copies shall be deposited with the Commonwealth Parliamentary Librarian, one for the Commonwealth Library, and the other to be divided amongst the State Libraries.
– Clause 41 deals only with the existing provisions of any State Act, and the honorable member for Calare points out that in some States there is no such provision as this.
– We are hardly responsible for that; all that we are doing is to see that a copy of every book published in the Commonwealth shall be lodged somewhere.
.- I would point out that clause 41 provides that nothing in this measure shall be deemed to affect the existing provisions of -any State Act relating to the delivery to the Library of the State of copies of books published in that State. The Library Committee has discussed the question of whether or not the provision requiring the delivery of a copy of every book published in the Commonwealth to the Commonwealth Library is sufficient. As the honorable member for Calare has pointed out, some of the States have no Act requiring a copy of every book published locally to be sent to the State Library, and unless we provide for them in this Bill those States cannot pass a law requiring that a copy of every book published in their respective States shall be delivered to the State Library. The Library Committee discussed this matter, on a very valuable suggestion made by Mr. Petherick, as to whether we should not so extend the provisions of this part of the Bill as to provide for the delivery of more than one copy. It is said that the publishers could not complain of such a provision, as the delivery of the books at the several State Libraries would be likely to lead to a wider rather than to a restricted circulation.
– If the Commonwealth compels the publisher to send one copy to the Commonwealth Library, that is a fair thing. We can buy the rest.
– But the point is whether we should not provide for delivery of a copy to the Library of the State in which the book is published. This matter was much discussed in England. Publishers there objected to the provisions of the English Act in this respect, describing them as amounting practically to a piratical invasion of their rights. Instead of limiting the clause, however, the British Parliament extended it by providing that a copy of every book should also be sent to the National Library of Wales. That was the curious , effect of the action of the publishers in making this complaint. I suppose that Mr. Lloyd-George’s influence was potent. The matter has not reached a stage at which one could suggest an amendment, and I am sorry that we have not had time to do something in the light of the suggestions made by Mr. Petherick, which were of a very exhaustive character, and the adoption of. which would have largely benefited the libraries of Australia.
– There is just a doubt whether clause 41 does anything more than protect the existing provisions of any State Act on the subject. If it be as the honorable member for Calare says, that some of the States have not got such a law, this clause might possibly prevent their passing one. We might, therefore, add to the end of clause 41 the words “or the power of the Parliaments of the States to make laws in- this regard.”
.- We could specify in the Bill that a copy of each book published in the Commonwealth shall be delivered in each State as prescribed. Under the English Act a copy of each book published in the United Kingdom has to be delivered to six different libraries, namely, the British Museum, the Bodleian Library, Oxford, the University Library, Cambridge, the Library of the Faculty of Advocates at Edinburgh, the Library of Trinity College, Dublin, and the National Library of Wales. If we desire to give to the States which have not passed a Statute on this subject the right to secure for the State Library a copy of every work published within their respective boundaries, we should take power under this Act to require a copy to be delivered.
– The position is that any State law relating to copyright will be overridden by the Federal law, and that therefore the State Parliaments will have no power to legislate in this connexion. There is nothing, however, to prevent any State Parliament from declaring, should it so desire, by any other law which it chooses to pass, that a copy of every book printed in that State shall be lodged with the State Library. That is within the power of the State Parliaments, and I think clause 40 was intended to cover a provision of the kind.
– I think the Government might well accept the amendment suggested by the honorable member for Calare, and provide for the delivery of two copies, instead of one copy, of every book published in the Commonwealth. This matter was gone into very carefully by the Library
Committee, who preferred a request to the Government, and I was led to believe that that request had been embodied in this Bill. It was only this afternoon that I discovered that it had not been. The object which the Library Committee had hi view was that one copy of every book published in the Commonwealth should be sent to the Commonwealth Library, and one to the Public Library of the State in which the book was published. There was a fear on the part of the States that some of their present rights would be affected if the clause were passed as it stood, and that whilst the Commonwealth Library would secure a copy, the State libraries would not. To get over the difficulty, we suggested that two copies should be sent to the Commonwealth Library, and that the Library Committee should undertake to send one copy to the Library of the State in which thebook was published. I would remind honorable members that under the English Act six copies have to be provided, whereas we ask for only two. This provision would really be a good advertisement for the publishers, who, so far as I can understand,, would not object to two copies being supplied, subject to the arrangement I have just suggested. That arrangement could be carried out without any remodelling of the clause, if we provided for the delivery of two copies instead of one.
.- I think we could meet the difficulty by provdding that two copies shall be sent to the Librarian of the Parliament, who shall give a written receipt for them, and that one of such copies shall be delivered to the Librarian of the Parliament of the State in which it was published.
– Why not the State Public Library?
– That was the intention of the Library Committee.
– I think that there is a Public Library in every State.
– If we provide for the delivery of two copies instead of one we shall overcome the difficulty.
– I move-
That the words “a copy” be left out, with, a view to insert in lieu thereof the words “ twocopies.”
– The object of this clause is to gather under one roof - that of the Library of the Parliament of the
Commonwealth - a copy of every book published in the Commonwealth. The amendment of the honorable member for Darling -Downs asks for two copies of every book so published. We might ask for halfadozen copies, and they might be usefully distributed. I submit, however, that there -is nothing to prevent a State from dealing with this matter itself. We do not legislate for the States, but for the Commonwealth. It is not in consonance with the spirit of this Bill that we should legislate for the States in the manner suggested. I would suggest that at the end of clause 41 the following words might be added, “or to affect the power of the Parliament of a State to make laws requiring or reJating to such delivery.”
– I confess that the thought to which the AttorneyGeneral has just given expression crossed any own mind. Independent of copyright law a State may enact that a copy of every book which is published within its borders shall he delivered to the Librarian of its Public Library. I would suggest that after the word “ Parliament,” the following words <be inserted : - “ and in case of an Act of the State in which the book was published should so provide, a copy to the Public Library of the State.” That form of amendment would not, in any sense, derogate from the power of a State to provide that a copy of every book published within its boundaries must be delivered to “the Librarian of its Public Library.
– That amendment would conflict with clause 41.
– If the Attorney-General right, clause 41 need not be retained.
– If the suggested amendment be inserted, clause 41 will not be necessary.
– That is what I say.
– But the amendment will >not fit the clause.
- We are not such children that we cannot amend the clause as we go along. However, if the Attorney-General prefers his way, I suppose we must allow him to have it.
– The amendment of the honorable member for Darling Downs would, in my judgment, meet the whole position, and confer an advantage upon this Parliament. It would enable the Commonwealth Parliamentary Library to meet the needs of the States, and I think that our Library Committee could be trusted to deal fairly with ‘ the States. It would further give that Committee the advantage of getting into communication with the States, and of obtaining from their Libraries publications which are at present issued, but which are not registered - publications which would prove of considerable value to us. I hope the Attorney-General will accept the amendment.
– I am very willing to consider all these amendments. While there is no objection to the proposal of the honorable member for Darling Downs, I submit that it is opposed to the principle of the Bill and of Commonwealth legislation. There is nothing to be said against the suggested amendment of the honorable member for Angas, except that its adoption would involve the recasting of the whole of this clause. Sub-clause 2 relates to the Library of a Commonwealth, but if the honorable member’s suggestion were agreed to it would also relate to the Library of a State. Further, I am informed that clause 41 was inserted at the request of the State Librarians. It is true that its inclusion has evoked a storm of criticism. Since it is in the Bill, I suggest that, with the amendment which I have foreshadowed, it can be made effective.
Amendment negatived.
Clause agreed to.
Clause 41 -
Nothing in this Act shall be deemed to affect the existing provisions of any Act of the Parliament of a State nvhich require or relate to the delivery to any specified- public or other library of the State of copies of books published in the State.
Amendment (by Mr. Hughes) proposed -
That “the following words be added to the clause : - “ or to affect the power of the Parliament of a State to make laws requiring or relating to such delivery.”
– The call for a division upon the amendment of the honorable member for Darling Downs was withdrawn to enable the honorable member for Calare to escape from the position of being obliged to vote against the Government.
– Order !
– I rise to a point of order.
– The honorable member is not in order in rising to his feet when I am putting an amendment.
– I rise to a point of order. When you, sir, peremptorily called me to order - and I obeyed your ruling with alacrity - I was wondering how the call for a division on the amendment of the honorable member for Darling Downs came to be withdrawn. When the question was put, two or three honorable members distinctly called out “ the ‘ Ayes ‘ have it.” Why there was not a division, I do not know. Now I am being pulled up for thinking aloud. In my opinion, we could have beaten the Government.
– I distinctly asked whether it was the pleasure of the Committee that the call for a division should be withdrawn, and there being no objection, I allowed the call to be withdrawn.
.- The proposal of the Attorney- General will not help the Library at all. We might as well be without the clause as pass it in the form in which he proposes to amend it. The object of having two books sent to the Library is to enable us to effect exchanges with other libraries, and thus add to our collection. The Library Committee obtained the fullest information on this subject, and the Government promised, when the Bill was in the Senate, that what we desired should be provided for. It was not provided, and now when we make a suggestion, a proposal is put forward that does not meet the case.
– I hope that arrangements may still be made with the States to give effect to the suggestion that has been made should they legislate on this subject. Mr. Petherick put before us a number of most useful suggestions regarding the obtaining of books, and Mr. Speaker, myself, and others went into this matter very carefully. It was thought that the States might be made collectors for the Commonwealth by getting them to send to us the extra copies of books presented to their libraries. I understand that the Government was approached on the subject, but for some reason the provision sought for has not been made. To make it might require the insertion of two or three clauses, or of a clause containing several subclauses. Under the circumstances I suppose we must be content with the amendment that has been moved, and must ask the States to exercise their powers in the matter, and to send us any extra copies of books that may be presented to them.
– - Having heard the remarks of the honorable member for Kennedy, I think that the Committee has been tricked. I understood from you, Mr. Chairman, that we were dividing on the question whether the clause should be passed as introduced, or whether the proposal of the honorable member for Darling Downs should be adopted, and when the call was withdrawn, I thought that the AttorneyGeneral had signified his intention to accept the proposal of the honorable member for. Darling Downs.
– No.
– That, at any rate, was my impression. I consider that I have been tricked.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 42 agreed to.
Schedule and title agreed to.
Bill reported with an amendment.
Motion (by Mr. Page) put -
That the Bill be now recommitted for the reconsideration of clause 40.
The House divided.
AYES: 24
NOES: 21
Majority ….. 3
AYES
NOES
Question so resolved in the affirmative.
In Committee (Recommittal) :
Clause 40 - (1.) The publisher of every book which is first published in the Commonwealth . . . shall . . . deliver, at his own expense, a copy of the book to the Librarian of the Parliament.
– The amendment made by the Committee on my motion is, in my opinion, more than sufficient for the purposes required. The proposal of the honorable member for Kennedy that two books should be presented is contrary to the principle of the measure. We ought not to legislate for the States. But we have in the clearest possible way empowered them to legislate for themselves. They can require the presentation of as many books as they desire. I protest against this petty criticism of a clause which was put in at the instance of the State Librarians, who presumably knew what they needed. It was suggested that the powers of the States were limited to the existing legislation, and to remedy that an amendment was inserted by me, so that if the existing Acts of the States are not sufficient they can legislate further.
– I move -
That the words “ a copy “ be left out, with a view to insert in lieu thereof thewords “ two copies.”
The Attorney-General has apparently failed to grasp the object of the amendment, which is, as I understand, to give the Commonwealth Library a certain power which it does not possess at the present time. The amendment confers a distinct benefit on the Commonwealth Parliament, and not on the State Parliaments. The clause retains to the State Parliaments the whole of their present powers; and several members of the Library Committee support the amendment in order that there may be liberty of exchange. The proposition is so simple that I cannot understand the objections raised to it. In what way the proposal strikes at the fundamental principle of the measure I fail to see, because we are not legislating for the States in any shape or form, but for ourselves.
– The States have power to legislate for themselves.
– We are not asking for additional advantages, for the States ; what we want is an advantage for ourselves. Surely, when other Parliaments may ask for from six to eight copies, we may reasonably ask for two copies.
– The mover of this amendment seems to have “ let the cat out of the bag.” Apparently, so far as he and those who support him are concerned, they do not move with a view to protecting the States, which can legislate for themselves, but with a view to demanding two copies of any one book ; and for what purpose? It is quite legitimate to ask for one copy to put in a national public library, but it is now suggested that we should demand a second copy in order that we may trade with a third person, because we are too mean to buy more copies. This, in my opinion, is approaching the immoral. Under the circumstances, I suggest that support should not be given to the amendment, which places us in the position of demanding from a private person a portion of his property which we are too mean to purchase. I am confident that honorable members will not support an amendment calculated to bring us into contempt and ridicule.
– Why not purchase all the copies we require?
– I am prepared to say that we should do so, but there is a marked difference between a legitimate request for one copy to place in a national library, and a demand for a second for the purpose of trade. Why not demand a dozen copies, or a copy for every honorable member, with the permission to “ trade it off “ ? I suggest that the amendment be withdrawn.
– I think that the Honorary Minister hashardly done justice to the position’. What is desired is that there shall be at the Seat of Government a complete collection of all Australian books which are given copyright under this Bill - that there shall be one repository to which every one can resort. In England, copies have to be sent to Edinburgh, Dublin, London, and altogether seven places.
– But the books are not hawked there !
– The idea of the amendment is not only to preserve a complete collection at the Seat of Government, but to have a second copy in the State Library, in order that there may be a copy of each book published in each State.
– That is already provided for in the clause.
– It is not a big demand to make, and I believe that publishers would gladly comply with it. The idea is to have Australian books in the Australian Library, and State books in the State Library.
– That is not the amendment.
– That is the effect of the amendment.
.- The Library Committee have no idea of making bargains, but possibly it would have been better if it had been suggested that one copy should be sent to the Commonwealth National Library, and another copy to the libraries of the States. The principle is the same in each case. If we are going to provide for the States altogether, we should have provided for a copy to be sent to a Public Library in every State. That would not be unreasonable. I believe the publishers are themselves glad to have copies of books published by them sent to Public Libraries. Certainly there ought to be somewhere in every State a copy of every book published in the State ; and a Public Library is the proper place for it. In this case, it is simply asked that the usual practice shall be followed. I cannot understand why the Government object to the proposal. Perhaps the mistake has been in the way in which it has been submitted. To strike out “one” and insert “ two “ does not put the matter in the right way. It does not require that one copy shall be sent to the National Library and the other to the Public Library of the State in which the book is published. Altogether, however, I do not know that the matter is worthy of all the noise that has been made about it.
– The view put before the Committee by the honorable member for Richmond was quite different from that which was put by the honorable, member for Darling Downs. Either the one view or the other should be espoused by those who supported the recommittal. At the present time there is no law which compels a person to deposit a copy of a book in a Public Library. We are making such a law in that respect. Before a person can get registered a book which he publishes, he has to present a copy to the Registrar, who keeps a complete list of the books published in Australia. Then he has to deposit a copy at the Parliamentary Library. Further, every State can compel him - and all the States except one do compel publishers - to deposit a copy of the book at its State Public Library. We hold that that is enough. It is unnecessary to say to the publisher, “You must deposit one more copy.” It is perfectly true that there is only a difference of one copy, but we have to stop somewhere.
– Could it not be arranged that every member of Parliament should have a copy of every book published ?
– There are plenty ot books of which we should all like to get copies. I submit, as a matter of principle, that, first of all, the Commonwealth should not legislate for the States. If it attempted to do so in other matters we should have a howl from the other side. But’” when, as here, it is proposed to allow the States to legislate for themselves, and to give them ample power, we get into trouble with the Opposition. Inasmuch as we propose to compel a publisher to deposit one copy of a book with the Registrar, and another with the Parliamentary Librarian, and as, further, we give the States a right to demand copies, I submit that we are going far enough.
– As tar as I can make out all this trouble comes from ignoring the States. There seems to be an . unregenerate notion in the mind of the Government that they must never consult the States about anything they do. The sooner that opinion is dispelled the better. The original idea was that this matter was to be dealt with after consultation with State Librarians. I do not see any hardship in the proposal to obtain two copies of a book which a publisher has issued. I believe that the publisher will get more advantage out of the arrangement than we shall. The honorable member for Adelaide suggests that it is immoral to ask publishers to do this. I cannot see why.
– The honorable member forgets that power is given to the States to legislate on the matter.
– Yes, it is proposed to give them power to take 200 copies of a book if they like.
– They can take any number they like, of course.
– Since we give them power to do as they like in the matter, it seems to me not an unreasonable thing to do what the amendment proposes.
– The English Act simply requires a copy to be sent to the British Museum.
– But I understand that publishers in the United Kingdom must distribute six or seven copies if required.
– There are no State Parliaments in the United Kingdom to legislate in regard to the provincial Libraries.
– Is it not, according to the honorable member for Adelaide, an immoral thing to take six or seven copies from a poor publisher, and to distribute them amongst rich seats of learning in different parts of the country? ‘
– I think it would be a very proper thing that a copy of every book published in Australia should be given to each of the University Libraries, but if we were to legislate in that direction it would-be said that we were interfering with State matter’s.
– I do not see why copies should be given to Universities.
– That is done under the English law.
– I know that it is. I am pointing out that if it is a proper thing to have copies distributed gratis amongst these private institutions in England
– They have the power, and they properly exercise it.
– They take the power; yet the honorable member will not take any power here to provide for the supply of even two copies of every book published in the Commonwealth.
– We give the States power to do that.
– I think we should take power to be, if need be, a little liberal to ourselves. We ought to take this power, even if we have to pay for it. I am not at all enamoured of the idea that we should obtain free copies of all books published in the Commonwealth. This Parliament is rich enough to pay for the books it requires.
– Then let us strike out this provision altogether, and pay for the books’ we require.
– I think it proper that we should require a copy of every book published in the Commonwealth to be sent to the Commonwealth Library. In time to come, no doubt, many of the books will be matters of curiosity more than anything “else; but they will, I suppose, mirror the literary art of the time, and, in that sense, become very properly historic and valuable. Why the AttorneyGeneral should make a mountain out of this question I cannot understand. Doubtless the Library Committee had good reason for suggesting that provision should be made for the supply of two copies.
– The Library Committee’s intention was that the second copy should be ‘sent to the library of the State in which the book was published; but that is not the intention of this amendment.
– The States may secure a copy of every book published within their respective boundaries if they pass a Bill to that effect.
– I am aware of that.
– I am surprised that the honorable member should ask us to legislate for the States.
– I do not wish the Parliament to do so ; but in these matters of mutual benefit, it would not be derogatory to the dignity of the Government to consult the States in respect of legislation where uniformity would be advantageous.
– The Attorney-General has said that this was put in with the consent of the State librarians.
– So many contradictory statements are being made that it is difficult to understand the actual position. However, if the Attorney-General feels strongly about this matter, I would advise my honorable friend not to press his amendment. I do not think the question is worth quarrelling over, and why the Attorney-General should make a quarrel out of it I do not know.
– I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. _
Bill reported without further amendment ; reports adopted.
page 4883
Bill returned from the Senate without amendment.
House adjourned at 10.28 p.m. .
Cite as: Australia, House of Representatives, Debates, 30 October 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19121030_reps_4_67/>.