House of Representatives
21 October 1914

6th Parliament · 1st Session



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

page 251

GOVERNOR-GENERAL’S SPEECH : PRESENTATION OF ADDRESSINREPL Y

Mr FISHER:
Prime Minister · WIDE BAY, QUEENSLAND · ALP

– I have to announce that His Excellency the GovernorGeneral will be pleased to be present in the Library to-morrow afternoon, at 3.15 p.m., to receive theAddress-in-Reply to the Speechwhich he was pleased to deliver to Parliament.

page 251

ORDER OF BUSINESS

Motions (by Mr. Fisher), by leave, agreed to-

That on Wednesday and Friday in each week, unless otherwise ordered, Government business shall take precedence of all other business; and that on each Thursday, until half-past six o’clock, unless otherwise ordered, general business shall take precedence of Government business.

That on Thursday ineach week, unless otherwise ordered, general business shall be called on in the following order, viz. : -

On one Thursday -

Notices of motion.

Orders of the Day.

On the alternate Thursday -

Orders of the Day.

Notices of motion.

page 251

QUESTION

FINANCIAL ARRANGEMENTS WITH THE STATES

Mr THOMAS:
BARRIER, NEW SOUTH WALES

– Is the Treasurer in a position to publicly state what arrangement, if any, has been entered into between the Commonwealth and State Governments for the carrying on of the public works of Australia.?

Mr FISHER:
ALP

– The Governments of the Commonwealth and of the States have agreed to certain propositions, which have not yet matured, and in regard to which I am therefore unable to make a statement to the House now. An agreement has been arrived at which we hope will give good results very soon, and I shall take the House into my confidence in regard to it at the earliest possible moment.

page 251

QUESTION

ESPIONAGE

Mr FLEMING:
ROBERTSON, NEW SOUTH WALES

– I ask the Assistant Minister of Defence if his attention has’ been directed to a paragraph which has appeared in that usually careful and wellinformed journal, the London Times, to the effect that, in the opinion of the editor, the authorities in the Old Country are not sufficiently safeguarding against spies and other dangerous characters during the presentwar. Does not the Minister think that the stricture of the Times applies with even more force to the Commonwealth of Australia?

Mr JENSEN:
Assistant Minister · BASS, TASMANIA · ALP

– I have heard of the Times article referred to. As to the second question, I ask the honorable member to give notice of it.

page 252

QUESTION

CONCILIATION AND ARBITRATION LAW

Mr MATHEWS:
MELBOURNE PORTS, VICTORIA

– In view of the decision of. the High Court in the Tramways case, I ask the Attorney-General if he thinks it possible to make a law which would save expense and trouble to unions and employers by- letting them know when they really nave a case to place before the Arbitration Court, and that any case submitted had been properly submitted. Does the Minister not think it necessary to enact a provision under which, to prove a state of unrest in any industry, it shall not be requisite that ten employers in it have been shot and fifty men have been hanged)

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

– Before answering the question, I should like an opportunity to peruse carefully the judgment of the High Court, of which I have yet seen only the press report. Without making a definite statement, I may say that my present opinion is that there are no means at our disposal for clothing the Court with power to say whether, in fact, there is or is not a dispute.

page 252

QUESTION

EXPORTATION OP COAL

Mr CHARLTON:
HUNTER, NEW SOUTH WALES

– Has the attention of the Minister of Trade and Customs been drawn to a paragraph in the Sydney Daily Telegraph of Saturday last, which announces that . the Comptroller-General of Customs has stated that, from now on, no coal will be permitted to go to any South American port? Has a proclamation to that effect been made?

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

– A proclamation has been issued prohibiting the export of coal except with the consent of the Minister, but permission to export coal to South America has not yet been refused in cases in which we are satisfied that the consignees are genuine, and that the coal is not likely to fall into the hands of the enemy.

page 252

QUESTION

GERMAN STEAMER BERLIN: CARGO

Mr HIGGS:
CAPRICORNIA, QUEENSLAND

– Is the Minister of Trade and Customs aware that the Rockhampton consignees have been very ‘ much inconvenienced by the delay in the discharging of the cargo of the German steamer Berlin ? I ask the Minister whether instructions were not given by him more than ten days ago to have tb» cargo released, and, if so, why were they not carried into effect?

Mr TUDOR:
ALP

– I am aware that Rockhampton and other consignees north of Sydney, and in Sydney, have suffered1 inconvenience in connexion with the delay in discharging the cargo of theBerlin. Difficulty was caused in the first place by the Prize Court not permitting the cargo to be handled. Subsequently it was arranged to tranship the cargo into a vessel going as far north as Cairns. Still later it was determined by the consignees to have all the cargodischarged in Sydney, and the Customs Department has urged in all these cases as. speedy a discharge as possible. I received a telegram from the honorable member this morning in connexion with the matter, and immediately despatched* a telegram to Sydney to inquire whether the transportation of the cargo could not be hurried, so that those interested in itmight not have to suffer any longer delay than could be prevented. Every expedition has been used by the Customs Department in connexion with this, matter.

Mr HIGGS:

– Will the Minister of Trade and Customs state whether the cargo carried by these prizes is in charge, of Customs officials, and whether he hap instructed his officers in Sydney to havethe Berlin’s cargo taken out ? If he hasgiven such an instruction, will he inquire why it has not been carried out*

Mr TUDOR:

– The Department of Trade and Customs has. obtained from the Prize Court leave to take action, and in all cases, I believe, the agents of the vessels have been authorized to do thework which they would do, in ordinarycircumstances, in connexion with them,, charging up to the consignees the cost off taking out the cargo. The Department:has used every expedition in dealing with the cargo on the Berlin, as, indeed, it. has done in every case. I have sent a telegram to Sydney, and if I receive areply to-day I shall be pleased to let the honorable member have it. I would point out to him that it is quite possible that the Rockhampton portion of the:Berlin’s cargo is stowed lower down the hold than is that intended for Sydneyand Brisbane, so that the latter cargo. - would necessarily have to be dealt with* first.

page 253

QUESTION

EQUIPMENT OP EXPEDITIONARY FORCES

Mr RILEY:
SOUTH SYDNEY, NEW SOUTH WALES

– Will the Assistant Minister of Defence inquire as to the cost which the Department has incurred in respect of the equipment of our Expeditionary Forces, and compare the cost of the articles and commodities generally with which they have been supplied with the prices that were ruling before the war broke out? My point is that the Department has been compelled to pay excessive prices for the commodities purchased for these troops. Will the honorable gentleman make inquiries?

Mr JENSEN:
ALP

– Yes.

Mr FENTON:
MARIBYRNONG, VICTORIA

– Is the Assistant Minister of Defence aware that thousands of razors and large quantities of enamelware made in Germany were purchased by the Government for the use of our departing troops ?

Mr JENSEN:

– I have no such knowledge, but if the honorable member will give notice of his question I shall cause inquiries to be made.

page 253

QUESTION

EXPORT OF MARES

Mr P P ABBOTT:
NEW ENGLAND, NEW SOUTH WALES

– Will the Minister of Trade and Customs inform the House whether the prohibition of the export of mares from Australia will relate to horses that will be sent out with the Expeditionary Forces, and, if so, what procedure will be adopted in respect of men who have brought their own mares into camp ? What action will be taken to return the animals to the districts from which they have been brought 1

Mr TUDOR:
ALP

– Although the general question raised by the honorable member relates to the Department of Defence, a prohibition of the export of mares can b© issued only by the Department of Trade and Customs. We have prohibited the export of certain mares; but in some cases the consent of the Department to the export has been obtained. I do not think there will be any difficulty in the way of the men who bring their own mares into camp taking them with them abroad; but we have a right to prohibit the wholesale exportation of mares, since we desire to safeguard our own stock.

Mr RICHARD FOSTER:
WAKEFIELD, SOUTH AUSTRALIA

– Will the Minister of Trade and Customs ask the Government to reconsider the question of prohibiting the export of mares in connexion with the Expeditionary Forces, seeing that thousands of the type required are selling to-day at from 10s. to £1 each, their owners being compelled to part with them since, owing to the drought, they would otherwise starve?

Mr TUDOR:

– If the situation were to develop on the lines mentioned by the honorable member, these animals wouk be allowed to go out. The position is, however, that every case is dealt with on “” its merits. The honorable member’s statement as to the shortage of fodder may be true in respect of certain districts, but it does not apply to Australia generally.

Later :

Mr FENTON:

– Did I understand the Minister of Trade and” Customs to say that if the Defence Department require mares for remount purposes the prohibition will not apply?

Mr TUDOR:
ALP

– I stated that every case would be considered on its merits, and that as this proclamation was issued primarily for defence purposes only, if the Defence Department desired the use of mares it certainly would get them.

Mr Fenton:

– It is said that the Department cannot get sufficient remounts without mares.

Mr TUDOR:

– If the Defence Department says that it requires mares it W 11 get them.

page 253

QUESTION

PROTECTION OF ABORIGINES

Mr YATES:
ADELAIDE, SOUTH AUSTRALIA

– I wish to ask the Minister of Home Affairs whether his Department has taken, or will take, any measures to protect the aborigines along the route of the east-west railway?

Mr ARCHIBALD:
Minister for Home Affairs · HINDMARSH, SOUTH AUSTRALIA · ALP

– I would ask the honorable member to give notice of his question. So far as I am aware, every protection has been given and is being extended to these aborigines at the present time.

page 253

SESSIONAL COMMITTEES

The following sessional Committees were appointed (on motions, by leave, by Mr. Fisher) -

Standing Orders Committee. - Mr. Speaker, the Prime Minister, the Chairman of Committees, Mr. Joseph Cook, Mr. Fowler Mr. Poynton, and Mr. Sampson; three to, form a quorum.

Library Committee. - Mr. Speaker, Mr. Anstey, Mr. Glynn, Mr. Higgs, Mr. W. Elliot Johnson, Mr. W. Maloney, Mr. Bruce Smith, and Mr. Wise; three to form a quorum.

House Committee. - Mr. Speaker, Mr. Burchell, Mr. Fleming, Mr. R. W. Foster, Mr

Mathews, Mr. O’Malley, Mr. Rodgers, and Mr. Yates; three to form a quorum.

Printing Committee. - Mr. Bamford, Mr. Charlton, Mr. Fenton, Mr.McWilliams, Mr. Palmer, Mr. Stumm, and Mr. Watkins; three to form a quorum; with power to confer with a similar Committee of the Senate.

page 254

PAPERS

The following papers were presented : -

Inter-State Commission Act - First annual report of theInter-State Commission.

War with Germany - Despatches from His Majesty’s Ambassador at Berlin respecting an official German organization for influencing the press of other countries.

Ordered to be printed.

Lands Acquisition Act-

Land acquired under, at -

Dubbo, New South Wales - For defence purposes.

Land Tax Assessment Act - Return showing penalties accruing through late payment of tax whichhad been remitted, in respect of assessments for the financial years 1910-11, 1911-12, and 1912-13, during the period 30th June, 1913, to 3lst May, 1914.

Public Service Act - Postmaster-General’s Department - Promotion of J. E. Monfries as Chief Clerk, 2nd Class, Correspondence and Inspection Branch, Adelaide.

page 254

QUESTION

GERMAN EXPLOSIVES FOR STATE COAL MINE

Mr MATHEWS:

– Has the attention of the Prime Minister been drawn to an article in this day’s issue of the Age regarding the supply of German explosives to theWonthaggi State coal mine? Does the right honorable gentleman know that the firm of Dalgety and Company, of which Mr. R. O. Blackwood, president of the Employers Federation, is a leading member, are the agents-

Mr SPEAKER:

– Order ! The honorable member is now going beyond the asking of a question.

Mr MATHEWS:

– I bow to your ruling, Mr. Speaker, but it seemed peculiar to me that the firm in question should be supplying German explosives it the present juncture.

Mr SPEAKER:

– The honorable member is in order in asking a question on the subject, but he was not in order in making any comment. It was that to which I took exception.

Mr MATHEWS:

– I merely wished to draw attention to the name of the firm which was supplying these explosives. Has the Prime Minister read the article, and is it possible for him to do anything in the matter?

Mr FISHER:
ALP

– I read the article, and agree that, as far as possible, patriotism should begin at home. I do not assert that we must not use the products of other countries at the present time, but I certainly hold that wherever possible the products of the Empire should have preference.

page 254

QUESTION

PRODUCE : INSPECTION CHARGES

Mr ATKINSON:
WILMOT, TASMANIA

– Can the Minister of Trade and Customs inform the House whether the Western Australian Government have tendered any explanation as to the reducing of the inspection charges in connexion with produce from 15s. to 2s. 6d.?

Mr TUDOR:
ALP

– No; but if the honorable member will put his question on the notice-paper I shall be pleased to have inquiries made.

page 254

QUESTION

GERMAN WATER PIPES: IMPORTATION

Mr GREGORY:
DAMPIER, WESTERN AUSTRALIA

– Will the Minister of Trade and Customs use his influence to prevent the introduction of German pipes for the Coolgardie water scheme, Western Australia ?

Mr TUDOR:
ALP

– If the honorable member will put his question on the noticepaper I shall have inquiries made in order to ascertain whether the allegations in this regard are true.

page 254

QUESTION

FEDERAL CAPITAL: VISITING MEMBERS

Mr W ELLIOT JOHNSON:
LANG, NEW SOUTH WALES

– Has any suitable accommodation yet been provided at Canberra for visiting members of the Federal Parliament who may desire to see what progress is being made with the preliminary works there ?

Mr ARCHIBALD:
ALP

– No accommodation has been provided up to the present time, but I have been thinking of arranging in the meantime for the supply of tents for visiting members.

page 254

QUESTION

PINE CREEK-KATHERINE RIVER RAILWAY

Mr THOMAS:

– Is any work being carried on in connexion with the construction of the railway from Pine Creek to Katherine River, and, if so, what is that work?

Mr ARCHIBALD:
ALP

– The construction of the extension from Pine Creek to Katherine River is being pushed on. Some 188 men are at present employed, and more will be put on later. The usual rainy season may delay this work a little during the next month or so.

page 255

QUESTION

EXPEDITIONARY FORCES

Supplyofboots-disurbancein Melbourne - Police and Soldiers.

Mr FOWLER:
PERTH, WESTERN AUSTRALIA

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

  1. Have contracts for the supply of boots for the Western Australian Expeditionary Forces been let in the eastern States?
  2. If so, what is the contract price, and does the price cover freight and charges to Perth?
  3. Were Western Australian manufacturers invited to tender; if so, how many tenders were received, and what was the lowest quotation?
Mr JENSEN:
ALP

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

  1. Yes. 2.11s.10d. and11s. No.
  2. Yes. No tenders or quotations were received in Western Australia.
Mr BOYD:
HENTY, VICTORIA

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

What steps, if any, are the military authorities taking to punish those members of the Expeditionary Force responsible for the scenes in the streets of Melbourne on Saturday, 10th October ?

Mr JENSEN:

– It is not known what members of the Expeditionary Force were responsible for the scenes referred to ; consequently the Commandant reports that no arrests have been made.

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

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

  1. Would he inform the House of the instructions issued by the Defence Department re arresting of soldiers in uniform by the civil police ?
  2. Are the military instructions dominant over the civil police?
  3. Are only the names of private persons committing offences against the law to be published, and not the names of persons in uniform?
Mr JENSEN:

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

COMMONWEALTH MILITARY FORCES OF THE COMMONWEALTH.

Special District Order.

By Colonel R. Wallace, Commandant. 3rd Military District. 11th October, 1914.

Major T. M. McInerney is appointed Provost Marshal, 3rd Military District, until further orders. He will be assisted by Captain De Bucy, Assistant Provost Marshal, Australian Imperial Force.

The following instructions are issued for the maintenance of good order and dis cipline of troops on leave in the City of Melbourne : -

Officers commanding unitsare to take precautions that orders governing leave to members of their units are strictly observed, and that steps are taken to ascertain that all soldiers return to their camp or quarters on the expiry of their leave.

All soldiers misconducting themselves, or in any way offending against the public order, will be at once arrested by the civil or military police, and handed over to the nearest military picquet, to be dealt with by their Commanding Officers.

The authority of the civil or military police is not in any way to be interfered with by soldiers. All directions and orders from the civil or military police in the course of their duty are to be strictly obeyed. Disobedience will be followed by arrest.

All soldiers, when called upon, are to at once give all help in their power to the civil or military police in the discharge of their duty. Any soldier refusing to do so will be severely dealt with.

Military picquets will be established as follows : -

Town Hall, Melbourne.

Bourke-street West Police Station.

City Police Watchhouse.

Special orders will be sent to Camp

Commandants and others required to furnish these picquets, and no other military police or picquets are to be sent on duty to Melbourne.

It is essential that the good name and reputation of the Australian Imperial Force be preserved, and Officers Commanding will impress on the men under their command that disorderly conduct of soldiers not only brings discredit on themselves, but dishonour to the regiment of which they are members.

These orders are to be read on the first three parades held after receipt of same. (Sgd.) J. C. Hawker, Col.,

A.A.G., 3rd Military District.

No.

The publication of names of persons committing offences against the law is a matter for the police to deal with. The Defence Department has issued no such instructions on this matter.

page 255

QUESTION

GENERAL POST OFFICE, ADELAIDE

Stores Department : Sick Leave

Mr YATES:

asked the PostmasterGeneral, upon notice -

  1. How many applications for transfer have been made by officials of the Stores Department, General Post Office, Adelaide, within the last two years?
  2. How many transfers have been granted?
  3. How many officials have applied for sick leave within the last two years?
  4. What periods of sick leave have been granted ?
  5. What is the nature of the sickness that has necessitated such leave?
Mr JENSEN:
ALP

– The following replies have been furnished by the Deputy PostmasterGeneral, Adelaide : -

  1. Thirteen.
  2. Eleven.
  3. Thirteen. 4 and 5. The following statement gives the desired information : -

page 256

BELGIAN GRANT BILL

InCommittee (Consideration of GovernorGeneral’s Message) :

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

– I move -

That it is expedient that an appropriation of revenue be made for the purposes of a Bill for an Act to grant and apply out of the Consolidated Revenue Fund the sum of One hundred thousand pounds as a grant in aid to the Government of Belgium.

This is the legal form of passing the supply necessary to give effect to the motion passed by both Houses last week.

Question resolved in the affirmative.

Resolution reported and adopted.

Ordered -

That Mr. Fisher and Mr. Hughes do prepare and bring in a Bill to carry out the foregoing resolution.

Bill presented by Mr. Fisher and read a first time.

Standing Orders suspended, and Bill read a second time.

In Committee:

Clause 1 (Short title).

Mr JOSEPH COOK:
Parramatta

– I do not propose to delay this Bill more than to inquire whether the right honorable gentleman has a clear idea where this money is going. Does he propose to give the amount to the Belgian Government ?

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

– Yes. Before moving the motion I saw the Belgian Consul, and consulted him about the matter. He expressed the opinion, on behalf of his nation, that they would be very grateful for our assistance. I indicated that our idea would bethat the money should go through the Secretary of State for the Colonies to the Government of Belgium, to be used by them as they thought best in healing the wounds their nation had suffered.

Sir John Forrest:

– Has the right honorable gentleman communicated this Parliament’s resolution to the Imperial Government ?

Mr FISHER:

– I do not propose to do so until I get the money.

Sirjohnforrest.-Theresolutionwas an authorization.

Mr FISHER:

– I propose to get the money voted and make one transaction of the whole thing.

Clause agreed to.

Clause 2 agreed to.

Preamble and title agreed to.

Bill reported without amendment; report adopted.

Bill read a third time.

page 257

TRADING WITH THE ENEMY BILL

Second Reading

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I move -

That this Bill be now read a second time.

This measure, relating to trading with the enemy, is, in its very nature, confined in its operations to the duration of the war, and in clause 2 the period of its operation is expressly defined. Trading with the enemy has been, and is, illegal at common law, except under licence from the Crown, but the extent to which that goes is not quite clear. That contracts with an alien enemy are illegal, except by such licence, is well established, as is also the fact that the property employed in such trading can be confiscated. The liability of persons engaged in the trade is not without a doubt, but probably they may be prosecuted for a misdemeanour. The circumstances in which this Bill is brought before the House are that, immediately on the outbreak of war, the King issued a proclamation, dated 5th August, 1914, and published in the Commonwealth Gazette of 7th August, warning all persons in His Majesty’s Dominion not to trade with the enemy, and defining the transactions so forbidden. Shortly afterwards the matter was put in statutory form.

This is the first time such a thing has been done by the British Parliament - that is, the passing of an Act called the “Trading with the Enemy Act.”

Mr Groom:

– Have you a copy of that Act?

Mr HUGHES:

– No, I have not. The substance of it is embodied in thismeasure, but although we have had the substance, and practically the whole of the Act, cabled to us, we are not in possession of a copy of the measure. The main effect of the Act is to make trading with the enemy a statutory misdemeanour. So far as I know, it does not alter the liability of the individual, nor does it affect contracts. The law is here reduced to statutory form, and trading with the enemy is defined as including any act or transaction declared to be so by the King’s proclamation. This present measure goes beyond the British Act, as it applies, not only to the proclamations by the King, but also to proclamations by the GovernorGeneral. This has been deemed necessary in order to cover Acts outside the scope of the British proclamation by virtue of our circumstances.

Mr Groom:

– Will there be another Bill defining those powers?

Mr HUGHES:

– We propose to make an amendment in the Bill to give the Governor-General the necessary power. The extent to which the powers will be used must, of course, be set out in the proclamation.

I come now to the position as it is today. A second proclamation was issued on the 12th September, and subsequently a third proclamation, which appeared in the Commonwealth Gazette on the 12th October. These proclamations prohibit trading with the enemy except as permitted by the proclamations. The Bill, which is a very short measure, is retrospective. It goes back to the 4th August in relation to acts between the subjects of the German Emperor and those of His Majesty the King of England and the Dominions, and to the 12th August in regard to acts between the subjects of the King of England and those of the Emperor of Austria King of Hungary. It provides for punishment by fine or imprisonment. Prosecutions are to be instituted by the Attorney-General only, either summarily or upon indictment, according to his view of the gravity of the offence. Goods may be confiscated. The Billapplies to corporations as well as to officers implicated, and these bodies are punishable. By clause 4, power is given to a magistrate, upon information from the ComptrollerGeneral of Customs, to issue a warrant to inspect books or documents, and search premises; while, in cases of urgency, the Comptroller-General may, by writing under his hand, authorize any person to carry out these functions without warrant. Clauses 5 and 6 are not in the Imperial Statute, but it has been thought necessary to insert them in this Bill. I propose to amend clause 5 by adding at the end the words ‘ ‘ or proceedings under this Act.” This is a matter which can be discussed in Committee; but, seeing that the Bill is to apply to very special circumstances, I think it is desirable that evidence given in one proceeding shall not be excluded in subsequent proceedings. The individual is amply covered, so far as proceedings under the criminal law is concerned, in relation to evidence so given by him. Clauses 5 and 6 are similar to provisions now contained in our Industries Preservation Act. Clause 7 is worthy of note. It provides for the appointment of a controller of any business or company which is suspected of an offence, or which, being disorganized by the war, it is in the public interests should be carried on.

Mr Groom:

– Is that in the British Act?

Mr HUGHES:

– Yes. The powers contained in this Bill are very wide, but the circumstances are such as to warrant the exercise of them; and I ask the House to pass this Bill with the amendment I have outlined.

Mr GLYNN:
Angas

.- I said last week that this was a measure we could pass without anything beyond a short discussion. I have been through the proclamations dealt with, and I think that the sum total of this measure is. to support proclamations issued before its enactment, and, as the Attorney-General has said, to enable others to be issued by the GovernorGeneral as well as in the name of the King. I believe that trading with the enemy is now prohibited by common law, and that was the view taken in Great Britain. I have read a good deal of the criticism on the Imperial measures recently introduced, though I have not read the Imperial Act upon this subject. It has not reached Australia; in fact, I am notquite sure that any Imperial Act has been passed dealing with trading with the enemy. An Alien Restriction Act has been passed dealing incidentally with trading.For instance, the measure enables aliens to reside in Great Britain, and it allows certain aliens to trade who have obtained licences for the purpose. I think that specially applies to banks. Before banking can be carried on by an alien a licence must be taken out. The general principle, however, is that aliens resident in the country have ample power to carry on trade within the country as ordinary citizens. There is a good deal of misapprehension as to the position of aliens who do business within the Commonwealth. I take it that the rule on the point is that, even though they have not taken out licences to trade, they can carry on their ordinary business operations so longas these do not extend beyond the Commonwealth, or so long as they are not trading with the enemy. This Bill is really a measure in connexion with the pro clamations on trade that have been, or may be, issued ; and the trading prohibited by it is trading of a class defined in the proclamations.

Mr Hughes:

– That is correct.

Mr GLYNN:

– There are two or three proclamations. The principal proclamation was that of the 9th September, published in the Government Gazette on the 12th September. I refer to proclamation (Trading with the Enemy) No. 2. I saw a press reference to the Imperial proclamation at the time and compared it with our proclamation. In some respects the two are dissimilar. I do not think the Imperial proclamation defines trading as including interchange of coin and various things of that class. On the other hand, our proclamation does this. Opinions have been offered in Great Britain to the effect that trading with the enemy does not Include the payment of coin, and that in some cases it does not extend to payments by cheque. Of course, there may be a payment in connexion with a new contract, but as a new contract itself is prevented that trading would be bad.

Mr Hughes:

– You mean that the contract would be illegal?

Mr GLYNN:

– Yes; and incidentally any payment made in respect of it would be bad. Our proclamation expressly mentions some things which, if the London press synopsis is correct, are not specified in the Imperial proclamation. I mention these particulars now, because there has been a good deal of discussion in Great Britain in the pages of the Economist and some other journals directly connected with trade as to the effect of the proclamation. In the Economist of the 22nd August it is claimed that the specific mention of certain things in the proclamation gives ample assent to trading which is not specified.

Mr Hughes:

– I think that that could only apply where there is no saving clause in the Bill, so far as common law prohibition is concerned.

Mr GLYNN:

– These journals think not. However, this is only an opinion for the guidance of traders, and does not matter much to us, because the alleged limitations of the Imperial proclamations do not exist in our proclamation of the 9th September, which was issued during the time of the late Government, and was seen by all the Ministers of that Government.

Mr Hughes:

– Does the honorable member say that there is a dissimilarity between the proclamations issued here and those issued by the King?

Mr GLYNN:

– They are not indentical in terms. I have not seen the Imperial proclamation, but in the Economist there is a synopsis of it which seems to contain the exact words of some of the clauses, which are not identical with ours. The opinion is given that under the proclamation it would be lawful to send coin, bank notes, and other negotiable instruments to an enemy country.

Mr Hughes:

– My information is that both proclamations are the King’s, and the terms are identical.

Mr GLYNN:

– It is said that the nonspecification of coin, cheques, and so on, allows business to be carried on through their medium. Our proclamation of September, clause 5, paragraph 1, prohibits the payment of any sum of money to or for the benefit of the enemy, and some of the provisions, I fancy, specify coin.

Mr Hughes:

– I think that the Economist misunderstands the matter. At the end of the proclamation occur these words, “ Given at our Court, Buckingham Palace, this ninth day of September.”

Mr GLYNN:

– I think that it is not of much consequence whether we issue these trading proclamations or not, because trade with about 300,000,000 of people, and trade from Germany and Austria to the countries with which they are at war amounting to £240,000,000, including trade amounting to £107,000,000 from Germany and Austria to the United Kingdom and the British Empire, is cut off. That trade being stopped, there is not much to be gained by issuing proclamations making it an offence to trade. It is a fact that all countries have been affected by the interruption of the trade relations of the countries at war. Some of the penalties are, to my mind, rather severe.

Mr Hughes:

– My intention is to increase to £500, or imprisonment for one year, the penalty provided in clause 4.

Mr GLYNN:

– I refer to the penalties provided for in clause 3. A person summarily convicted before two justices of the peace, or a special magistrate, of the offence of trading with the enemy may be fined a sum not exceeding £500, or be imprisoned for a term not exceeding twelve months, or both. The offence may be a trivial one. In the Crimes Bill the penalty to be imposed on conviction by a Court of summary jurisdiction is much less.

Mr Hughes:

– My impression is that the Bill errs on the side of moderation.

Mr GLYNN:

– I differ from the Attorney-General. I have gone through the Crimes Bill, and there I notice that, in some cases, he has cut down the penalties, and in others has increased them.

Mr Hughes:

– It would be a cause of unaffected rejoicing throughout the world if the Germans were to treat us as lightly as we are dealing with them.

Mr.GLYNN. - There can be very little trading with the enemy now. Any such transactions will be comparatively small.

Mr.Fenton. - What does the honorable member mean by small ?

Mr GLYNN:

– Large transactions would be dealt with by way of indictment or information, and the case would be tried before a jury. There might be some small transactions between individuals, involving, perhaps, a £5 note, which would be technical offences, and the penalty is too large for such cases. I think that the Bill should be passed to support the Government during the present time of war.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clause 1 agreed to.

Clause 2 (Definitions) -

  1. For the purposes of this Act a person shall be deemed to trade with the enemy if he performs or takes part in -

    1. Any act or transaction which is prohibited by or under any proclamation issued by the King and published in the Gazette, whether before or after the commencement of this Act, and ….

Amendment (by Mr. Hughes) proposed -

That the word “and,” line 9, be left out, with a view to the insertion of the following sub-clause -

Any act or transaction which is prohibited by or under any proclamation made by the Governor-General and published in the Gazette, or

Mr GROOM:
Darling Downs

– I ask the Attorney-General whether he has carefully considered the value of this provision ? It is stated in Wheaton’s International Law that -

There can be no doubt that, from the nature of war itself, all commercial intercourse ceases between enemies….. Commerce is forbidden by the mere operation of the law of war. Declarations of war themselves sufficiently manifest it….. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war, as to commerce.

Then there is the following passage from Sir W. Scott’s judgment in the case of The Hoop-

By the law and Constitution of Great Britain the Sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient; but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce merely, and possibly on grounds of private advantage, not very reconcilable with the general interests of the State. It is for the State alone, on more enlarged views of policy, and of all the circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the State.

It would appear that the declaration of war is a sovereign act, and the Sovereign alone may limit the effects of a state of war by permitting partial intercourse. I am merely asking the Attorney-General if he will satisfy himself on the point that I have raised, and consider whether, in view of this passage I have quoted, the Governor-General has power to issue a proclamation of the kind referred to in the amendment)

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I do not say that the Commonwealth has power to issue every kind of proclamation in regard to war or trading with an enemy. No doubt certain proclamations might conflict with the rights of the Sovereign, but the proposal before the Committee is of quite another kind. It was framed to suit the circumstances in which we in this country find ourselves. I think it very desirable that the Commonwealth should have power to issue a proclamation to deal with special circumstances arising here. There are other reasons for the provisionson which I need not dwell ; but I have explained shortly to the Leader of the Opposition why we should have this power.

Mr FENTON:
Maribyrnong

.- I should like to know what would be theposition in regard to goods received here prior to the issue of the proclamation,, and retailed by the agent of a German, firm. Would such retailing be permitted by the Bill?

Mr Hughes:

– It would be one thing if it took place prior to the 4th August, and quite a different thing if it was after the 4th August but prior to the issue of the proclamation.

Mr FENTON:

– Take the case of a large quantity of goods sent to Melbourneby German firms and probably arriving, here in German bottoms. Such goods are now being sold practically every day by the agents of German firms. Under thismeasure, would such sales be held to be trading with an enemy?

Mr HUGHES:
General · West SydneyAttor ney · ALP

– I must ask the honorable member to be content with an incomplete answer. Paragraphs 6 and 7 of the proclamation of 12th September,, which is really the King’s proclamation of 9th September, contain certain words,, which limit the operation and scope of the proclamation. Paragraph 6 reads -

Provided always that where an enemy has abranch locally situated in British, allied, or neutral territory, not being neutral territory in Europe, transactions by or with such branch shall not be treated as transactions by or with an enemy.

That, in all probability, covers the point to which the honorable member has referred. In the next paragraph, it is provided that -

Nothing in this proclamation shall be deemed to prohibit payments by or on account of enemies to persons resident, carrying onbusiness or being in our Dominions, if such payments arise out of transactions entered into before the outbreak of war or otherwise permitted.

I think those provisions deal with the matter to which the honorable member has referred; but while, under the proclamation as it now stands, such transactions might conceivably be permissible, I do not wish it to be understood that they will necessarily remain so.

Mr GLYNN:
Angas

.- There ha* been a good deal of confusion amongst merchants as to what really was prohibited by the proclamation. Some of the newspapers, I think, called attention to the explanation given by the Imperial Government which appeared in the Times of 22nd August last; and I may, perhaps, clear up some of the points to which the honorable member for Maribyrnong has drawn attention if I refer to a paragraph or two in that published explanation. It is stated that - .

  1. For the purpose of deciding what transactions with foreign traders are permitted, the important thing is to consider where the foreign trader resides and carries on business, and not the nationality of the foreign trader.
  2. Consequently there is, as a rule, no objection to British firms trading with German or Austrian firms established in neutral or British territory. What is prohibited is trade with any firms established in hostile territory.
  3. If a firm with head-quarters in hostile territory has a branch in neutral or British territory, trade with the branch is (apart from prohibitions in special cases) permissible as long as the trade is bona fide with the branch, and no transaction with the head office is involved.

The explanation then proceeds to deal with other matters covered by the proclamation. I take it that ordinary trading carried on in Australia, although between enemy subjects, is perfectly valid. All that we have in view is to prevent the enemy being strengthened by any interchanges that might be effected, and, so far as the proclamation covers them, they are invalid.

Mr Hughes:

– They cannot, under cover of a branch, escape the operation of this measure, so far as its intent goes to prevent the enemy being strengthened.

Mr GLYNN:

– Quite so. I think the proclamation says that, in effect. We have to come back to the’ question as to whether the goods have become part of the mass of goods in the country ; the question of whether or not their origin has been German is irrelevant. If the transaction were not complete, but would be completed by the branch, it would, generally speaking, be invalid.

Mr Fenton:

– Would not the branch doing business here be really strengthening the enemy?

Mr GLYNN:

– We are dealing, not so much with the question of policy, as with that of interpretation.

Mr Brennan:

– But, referring to clause 3 in the explanation read by the honorable member, how is it possible to trade with an agent without involving the principal unless you exclude-

Mr GLYNN:

– I have endeavoured to reconcile the two things by_ saying that if the transactions here with the enemy country were incomplete, and were to be completed through the branch itself, that would be invalid as against our proclamation ; but, if the goods were here, in possession of the branch, and were part of the general mass of goods in the community, their sale by a branch of a foreign firm would not be ‘ ‘ trading with an enemy ‘ ‘ under the proclamation. I suppose the position would be the same at common law.

Mr Hughes:

– I am not going to say anything more than that; in my opinion, the honorable member for Angas has gone to the very uttermost in his statement of the case, and that I would not go so far as he has done.

Mr GLYNN:

– I am not offering a personal opinion. I have simply quoted an. interpretation of a proclamation which, the Attorney-General thinks is ‘identical in terms with that issued by the Commonwealth. Beyond that, I am not going. There is apparently a difficulty in reconciling the interpretation from which I have quoted with one’s idea of common sense in the matter.

Mr RODGERS:
WANNON, VICTORIA · LP; NAT from 1917

.- It would seem, from the explanations giver* to the Committee, that, under the Bill as it stands, a German firm might, by means of an agency in neutral territory, carry on as much trade as it desired with these States. There seems to be no effective barrier in the way. I understand that our trade and commerce law does not require all goods imported to be stamped so as to show the country of origin, and I should like to know how we are toprevent Australia sending away rivetsfor German guns in the shape of coin of the realm. Is the whole matter to be left to the international code of laws, or can we not provide more effectively than does this Bill against trading with an enemy?

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I wish to say nothing more in regard to this matter. It is obviously undesirable to state too precisely what one thinks ought to be done, since the mere statement of it might prevent our doing what we considered desirable. But what this Bill gives this Commonwealth power to do is to issue a proclamation that may deal with the mattertouched upon by the honorable member;. and that is all we want. I have given notice this afternoon of my intention to move for leave to introduce another measure which will still further strengthen the hands of the Commonwealth in dealing with goods which may conceivably be outside the scope of this measure.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 3 agreed to.

Clause 4 -

Penalty : Fifty pounds, or imprisonment tor six months, or both.

Amendments (by Mr. Hughes) proposed -

That the word “Fifty” be left out, with a view to insert in lieu thereof the words “ Five hundred,” and that the words “six months” be left out, with a view to insert in lieu thereof the words “ one year.”

Mr GLYNN:
Angas

.- This being a war Bill, which will expire with the war, one cannot press one’s opposition to the imposition of these heavy penalties. I wish to point out, however, that some comparatively trivial charges may be preferred under the Bill, and that an ordinary justice of the peace will have power to impose these very heavy penalties. There has been exhibited, from time to time, a disinclination to vest justices of the peace with very wide powers. This is due, not to any desire to impute to them want of ability, but to the fact that there are so many justices of the peace that very great disparity sometimes occurs in the amount of penalties imposed by them. Under the Crimes Bill a justice of the peace cannot impose a penalty exceeding £100; but, under this amendment, a justice of the peace will have the power to impose a maximum penalty of £500. I do not wish, however, to press the matter.

Mr P P ABBOTT:
New England

– Would it not be consistent with clause 3, in which the words “ not exceeding £500 “ occur, to provide in this case for a penalty “not exceeding” £500?

Mr Groom:

– Under the Acts Interpretation Act this provision means that the penalty shall not exceed £500.

Mr P P ABBOTT:

– Quite so; but if it is not necessary to insert these words in the one case why should it be necessary to insert them in the other ?

Sir Robe st Best:

– Because of its form.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 5 -

No person shall in any proceeding for an offence against this Act be excused from answering any question or producing any book or document on the ground that the answer or production may criminate or tend to criminate him, but his answer shall not be admissible in evidence against him in any criminal proceeding other than a prosecution for perjury.

Mr HUGHES:
AttorneyGeneralWest Sydney · ALP

. - I move -

That the following words be added to the clause: - “or proceedings under this Act.”

This measure, if it is to be useful at all, has to be useful without any circumlocution or unnecessary legal entanglement. Evidence will necessarily be extremely hard to get, and, although it may be urged that the clause as proposed may deter witnesses from giving evidence, that difficulty would arise in any case. Once evidence has been given, it ought to be available against a person giving it, even if it incriminates him, in regard to proceedings under this Act. In all other proceedings, save that of perjury, he will not be affected.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 6 and 7 agreed to.

Amendment (by Mr. Hughes) agreed to-

That the following new clause be inserted - “ 6a. For the purposes of this Act evidence of any proclamation issued by the King, or by the Governor-General, may bo given in all Courts by the production of the Gazette purporting to contain it.”

Title agreed to.

Bill reported with amendments.

Standing Orders suspended, and Bill passed through its remaining stages.

page 262

BELGIAN GRANT BILL

Bill returned from the Senate without amendment.

page 262

JUDICIARY BILL

Second Reading

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I move -

That this Bill be now read a second time.

This is a Bill to amend the Judiciary Act 1903-12. Under section 76 of the Constitution, it is provided that Parliament may make laws conferring original jurisdiction on the High Court in any matter of Admiralty and maritime jurisdiction. That jurisdiction has not yet been conferred. II is now proposed, by this Bill, to confer it. This will place the High Court of Australia in the same position as the High Court of England. The jurisdiction conferred will be exercised in two distinctly different ways - first, in regard to actions for salvage, towage, collisions, damages, wages, and so forth; and, secondly, in relation to prize. Admiralty jurisdiction generally is possessed at the present time by the various State Supreme Courts; and the jurisdiction which it is proposed to confer on the High Court in regard to such matters as salvage, towage, collision, &c, will be concurrent with that exercised by the State Courts. In regard to prize jurisdiction, the position is somewhat different. The Colonial Courts have jurisdiction in matters of prize, but they cannot exercise it unless specially authorized by His Majesty. These Courts are not Colonial, but Imperial; and the old practice was for the King to commission Prize Courts after the outbreak of war. But an Act of the British Parliament in 1894 provided that Prize Courts in the Possessions might be commissioned in times of peace, though they could not exercise the jurisdiction until the issue of a proclamation in time of war. In 1899, I think, a Commission was issued to the Lords of the Admiralty, who, in turn, conferred this jurisdiction on the various Supreme Courts of the States. This was, of course, dormant until revived by the issue of a proclamation by the “ViceAdmiral of the Commonwealth; and the jurisdiction has been exercised by the six State Courts since that proclamation was issued.

Mr Groom:

– Will the State Courts be left with concurrent jurisdiction?

Mr HUGHES:

– It is not proposed to interfere with the concurrent jurisdiction in maritime matters generally, but in regard to prize jurisdiction I wish to put my views before the House. At the outbreak of the war there were six Prize Courts in Australia; and those six, or such of them as have had occasion to exercise the jurisdiction, exercised it at their own discretion, and delivered judgments on lines they conceived to be- in harmony with what is termed international law, and not always with satisfaction and convenience to the Commonwealth. It is obviously undesirable that there shoul’d be six Courts exercising jurisdiction in a matter of this sort, with out provision for uniformity of some kind. The decisions given have been, in. many cases, conflicting; in one case, at any rate, no workable decision was given, nor has yet been given, so far as I know. These matters clearly come within the scope of the Commonwealth, intimately concerning, as they do, both the Defence Department and the Department of Trade and Customs, which have to primarily move in this regard. Under the circumstances, it is most desirable that the Commonwealth should be vested with the necessary jurisdiction.’. The Bill does not create Prize Courts, but merely confers maritime and admiralty jurisdiction on the High Court; and it is proposed to request the Home authorities to vest prize jurisdiction in that Court. At the same time, it is proposed to make representations that there is not sufficient reason for the retention of prize jurisdiction by the State Courts; and the reason for this is, I think, perfectly clear. Maritime jurisdiction generally, in regard to salvage, towage, wages, collisions, and so on, will remain concurrent and exercisable by the States and the Commonwealth. With regard to prize jurisdiction, it is, as I say, intended to represent to the Admiralty that there are not sufficient reasons for retaining the concurrent jurisdiction of the States. This Bill is one which the experience of both Governments, since the outbreak of t;he war, has shown to be necessary.

Mr GLYNN:
Angas

.- This is a Bill that ought to pass without much discussion. I understand that the measure accomplishes two things, one of which is to give the High Court, under the Constitution, maritime and admiralty jurisdiction, but it does not define what that jurisdiction amounts to. Whatever that jurisdiction is - though the High Court has given it, probably rightly, a narrower interpretation than is given in America - it is conferred by the Bill. As to Prize Courts, I confess that in reading the Bil) I was somewhat puzzled as to what was to be the position of the Supreme Courts of the States who have exercised this jurisdiction. Some of these are Prize Courts, under an Act of 1890, the title of which I forget, but under which these Courts are proclaimed Admiralty Courts. Now, it is proposed by this - Bill to make the High Court a Court in prize matters. I do not know what its real relation to the State Courts will be.It is assumed that there will be an appeal from their decisions. I think the Attorney-General assumes that there will be an appeal to the High Court.

Mr Hughes:

– There can be only an appeal to the Privy Council.

Mr GLYNN:

– There is that appeal, and, notwithstanding that their jurisdiction comes from the Act of 1890, if they are State Courts as well as Vice-Admiralty Courts there will be an appeal to the High Court, because that appeal is preserved by the Constitution in every case in which there was the right of appeal from the State Courts to the Privy Council at the time when the Constitution name into force.

Mr Hughes:

– That does not apply to Prize Courts.

Mr GLYNN:

– The point is whether the State Courts in deciding on prize matters are State Courts under the Constitution.

Mr Hughes:

– As they are not Colonial Courts in the sense used in the Constitution, the presumption is that that section will not apply.

Mr GLYNN:

– I do not think it will apply. I do not think they are State Courts for the purposes of appeal. The matter was discussed by Keith in his work on responsible government in relation to Canada, and, referring to Australia, he mentioned the Courts of Victoria and New South Wales, and expressed the opinion that they would not be State Courts. They have their jurisdiction from an earlier Act, or from patents issued earlier than the Act of 1890. Their jurisdiction was independent of that Act. A doubt may exist as to whether such jurisdiction is subject to appeal to the High Court. If the Attorney-General will get the Imperial Government to have all prize matters dealt with by the High Court, with power to appoint the Supreme Courts to help in the matter, I think the end a very desirable object to be accomplished.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 agreed to.

Clause 2 (Amendment of section 30).

Mr FENTON:
Maribyrnong

.- Does the Attorney- General take power under this measure to use enemy vessels now held as prizes?

Mr Groom:

– No.

Mr Hughes:

– I would not like to say that, but, as to those that may hereafter become prizes, I would say “ Yes, certainly.”

Mr FENTON:

– I hope and trust that you will make use of all the vessels you have now got.

Clause agreed to.

Clause 3 agreed to.

Title agreed to.

Bill reported without amendment ; report adopted.

Standing Orders suspended, and Bill read a third time.

page 264

CRIMES BILL

Second Reading

Mr HUGHES:
Attor ney-General · West Sydney · ALP

– I move -

That this Bill be now read a second time.

Though this measure comes before the Chamber for the first time, it is by no means a stranger to very many of us. It is one of those measures which, though urgently necessary and without a blot upon their escutcheons, are ruthlessly swept aside by every party from time to time. We on this side have done it, and I have no doubt that if we were down to bedrock we would do it again. The Bill deals with offences against the Commonwealth, but does not apply to offences against individuals; that is a fact to be noted at the outset. The present position of the Commonwealth in regard to offences committed against any law of the Commonwealth is anomalous and unsatisfactory. In some cases the Commonwealth legislation creates offences and provides penalties, but for the greater part of the Commonwealth’s sphere of legislation the Commonwealth has to have recourse to State Courts. The State Courts, in their turn, deal with offences under the common law and statutory law, and with offences against the Commonwealth for which there is no statutory sanction in any State Acts, as it has been held that the Commonwealth cannot have recourse to the common law, it follows that in every case where an offence committed against the Commonwealth is not dealt with under any State Statute the proceedings by the Commonwealth in respect to that offence stop short at committal. The Commonwealth may deal with the matter up to the point when the offender is committed for trial, but beyond that it has no status at all. Obviously, that is a most undesirable state of affairs, and it affected the Commonwealth very materially in several important prosecutions quite recently, notably Customs frauds and frauds against the Maternity Allowance Act. Control by the Commonwealth is very desirable. Certainly, lack of control is most undesirable, and it further involves additional expense which, in the aggregate, is very considerable. The Bill makes offences against the Commonwealth offences against the law of the Commonwealth, and, therefore, justiciable in the Commonwealth Courts. For instance, as we now have full control of coinage, it follows that offences against the Commonwealth law will include coining, and offences of a cognate character. The Bill will also deal with forgery - forgery, of course, of any Commonwealth instrument or power, not forgery of the signature of an individual, but the forgery of the signature of a High Court Justice, or any authority whose signature is necessary for giving effect to some instrumentality or power of the Commonwealth. One effect of the Bill will be to harmonize, throughout Australia, all procedure in regard to offences against the Commonwealth. At present, it often occurs that proceedings begun in one State in regard to an offence produce a totally different result from proceedings begun in another State in regard to the same offence. This occurs because the laws in each State are different, and is a most undesirable thing. The defect is remedied by the Bill. Uniform methods of procedure will replace the divergent State methods, and there will be uniform penalties. The measure does not, except in very few cases, create new offences. It must not be regarded as a new Criminal Code, nor does it make punishment more drastic. All the Bill does is to give the Commonwealth power to deal with offences against itself, or in relation to those powers which it exercises. In a few words, I may give the genealogy of the measure. I shall not be so forgetful of what I owe to myself, and to my friends opposite, as to say anything about its more recent adventures. The measure is based on the Queensland Criminal Code of 1889, which was drafted by Sir Samuel Griffith, the present Chief Justice of the Commonwealth, and was based on the English draft Code of 1880. This English Code was drawn up by a Royal Commission ap pointed in 1878, comprising Lord Blackburn, Mr. Justice Barry, Mr. Justice Lush, and Sir James Fitz james Stephen. These very celebrated jurists furnished the model on which the English Code was drafted. The Canadian Code, and also Pennefather’s draft Code of South Australia, have also been looked at in connexion with the drafting of this Bill, and several very important principles have been taken from them. It is most important to remember that, except in regard to espionage and offences against the Commonwealth, such as copying plans of fortresses, and obtaining military secrets, and such offences against the vital interests of the nation, the measure before us creates no new offences, if, indeed, it creates offences of that kind; because, in one way or another, they are nearly all covered by State law or common law. The Bill is divided into eight parts. Part I. deals with procedure, principles of criminal liability, and general matters. It gives power to the Court to declare persons habitual criminals. It gives power to inflict cumulative and concurrent sentences, and it enables prisoners to be released on licence. It also gives power to issue search warrants. Part II. deals with offences against the Government, such as treason, sedition, destruction or damage of Commonwealth property. Part III. deals with offences relating to the administration of justice, such as judicial and official corruption. Offences relating to coinage, dealt with in Part IV., have relation to foreign coinage as well as Australian coinage. By Part V., forgery is limited to the forgery of official seals, signatures, documents, and papers. Heavy penalties are provided for these things. Offences by and against public officers “are dealt with at length in Part VI. Part VII., which applies to a breach of official secrecy, is based on the Imperial Official Secrets Act of 1911 relating to espionage. The matters dealt with are unlawful spying, communicating or receiving secret information with regard to the defences and harbors of Australia, the harboring of spies, and the taking of unlawful soundings. Persons suspected of espionage may be arrested without warrant. Prosecutions under this part of the Bill require the consent of the Attorney-General. Part VIII. covers a number of miscellaneous offences, including conspiracy, and the buying and selling of public offices. The Bill is a fairly lengthy one. Some matters that were formerly included in it have been excised; but I think it sufficiently covers the ground. The measure should long ago have been introduced, and 1 apologize for this, and all other Governments that have gone before us, for the fact that it has not been introduced earlier; but it is especially necessary at the present juncture, because, right throughout the British Dominions, the law in regard to espionage may be designated as shamefully lax. I suppose the British people are the most trustful on earth, but there comes a point where trust and confidence in one’s fellow man becomes almost a crime. Certainly, some measure of this kind, conferring powers on the Commonwealth to protect its military and naval secrets, and to deal with spies, and those who make a profession of obtaining information of value to their respective Governments for the purpose of presently, or later, inflicting harm upon the Commonwealth, is obviously necessary at the present time; and this Bill will confer those powers. I. shall not deal at any greater length with the measure, but I shall be very glad to supply information to honorable members as and when they may require it with regard to its various provisions. So far as I know this measure cannot be regarded as a penal code in the sense that it creates new crimes, excepting those crimes that have relation to espionage,; and the obtaining of information with regard to our naval or military secrets, fortresses, harbors, and so on. It is not to be regarded as imposing additional provisions with regard to ordinary offences and crimes - such as forgery, perjury, coining, and so on. With regard to the corruption of the Judiciary and of public officers, I shall not say that under this measure the public might not have greater opportunities for the punishment of such offences. I hardly think it will be so, because I believe that under the -common law and statutory law now in force, every offence, excepting those dealing with espionage and the like, is already covered. The object of the Bill is to enable the Commonwealth to exercise jurisdiction, and to have power in respect of offences against itself and the various laws made under the Constitution. The necessity for uniformity in the matter is obvious. The delay in the prosecution of offences under existing circumstances is considerable, and the expense is a very material item.

Mr GLYNN:
Angas

.- The Attorney-General has said that this is a Bill of many sources, and, I might say, of multiple parentage. I think that in 1909, in his policy speech delivered at Ballarat, Mr. Deakin foreshadowed the introduction of a Bill of this kind. The measure must have been added to recently, as. I have never previously seen a draft of it so longas that now before us.

Mr Hughes:

– I have known of the measure ever since I have been here.

Mr GLYNN:

– I know that such a measure was publicly referred to during a previous election campaign. There have been some additions made to the previous draft which, I think, are questionable, and to which reference can be more properly made in Committee. I find, for instance, the old offence - which is almost as old as Magna Charta - about insisting upon excessive bail, is under this measure made a statutory offence. No such provision, I think, exists in any of the States, with the exception of Queensland, and the marginal note to the clause in this Bill dealing with the matter shows that it is taken from Sir Samuel Griffith’s criminal code of 1889 or 1890. The main object of the Bill, I take to be, to cover the defect that in some cases we have no jurisdiction to prosecute at common law. For instance, there is the case mentioned with regard to the Maternity Allowance Act. We can, under that Act, prosecute an individual for fraud; but, where there is a conspiracy to defraud under the Act, there is a doubt whether an indictment will lie. An offence which may be the subject of a common law prosecution in the State Courts, because it is an offence against a State law, is made a statutory offence here by the Bill. That appears to me to be the main object of the measure; but there are certain other offences introduced which might be better considered in Committee than at this stage. On the whole, the Bill is one on which very few words need be said on the second reading.

Mr GROOM:
Darling Downs

.- This Bill was under consideration, I think, as far back as 1907. I think that very properly it is, to a very great extent, based upon the criminal code drafted by the present Chief Justice of the High Court when he was Chief Justice of Queensland. I have not had time to go through the measure very carefully, but I have noticed one or two instances of departures from the phrasing of the Queensland criminal code. I need only say that the Queensland criminal code is really a monumental work, which will stand to the everlasting credit of Sir Samuel Griffith as a parliamentary draftsman and a jurist. The experience of those who have worked under that code in the Courts of Law is that the drafting has been very carefully done, and, on the “whole, has proved to be excellent. I mention this to the AttorneyGeneral because I presume he has carefully considered the deviations in this measure from the original draft, and will be able to give some justification for the departures to which I refer. The honorable gentleman will admit that, when a Statute is shown to have worked well, it is a dangerous thing to depart from its phraseology. The deviations from the Queensland Criminal Code may be mentioned when we get to the Committee stage of the Bill.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clauses 1 to 4 agreed to.

Clause 5 -

Any person who aids, abets, counsels, or procures, or, by act or omission, is in any way directly or indirectly knowingly concerned in or party to the commission of any offence against this Act or any other Act, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence, and shall be punishable accordingly.

Mr GLYNN:
Angas

– I draw attention to the fact that this clause seems to be retrospective. The AttorneyGeneral will notice the words “whether passed before or after the commencement of this Act.” I was asked about this matter in relation to another Statute. I think that the clause is all right in this measure, as making it retrospective in relation to an Act of Parliament.

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I shall be glad if the honorable member for Angas can make any suggestions as we go along. If I am unable to agree with them at once, I shall have inquiries made into the points raised before the Bill reaches another place, and we shall be prepared to make any reasonable amendments that may be suggested.

Clause agreed to.

Clauses 6, 7, and 8 agreed to.

Clause 9 (Seizure and condemnation of forfeitable goods).

Mr GLYNN:
Angas

.- We are dealing now with offences, and arrests and examinations without warrant. I do not know to what extent the provisions of the Customs Act are being varied, but I think that they are being varied to some extent.

Mr Hughes:

– I shall consult with the honorable and learned member about the clause.

Mr GLYNN:

– The first part of the clause is taken, to some extent, from the Customs Act, and I have found a slight variation from the wording of that Act. The latter sub-clauses do not seem to have been taken, at all events verbally, from the Act. There is a power of condemnation given to the AttorneyGeneral such as under the Customs Act is vested in the Minister of Trade and Customs or the Collector of Customs. We ought not, without knowing what we are doing, to vary the terminology of offences which are, in substance, provided for in the Customs Act, nor to vary the method of administering provisions constituting such offences.

Clause agreed to.

Clauses 10 and 11 agreed to.

Clause 12 (How offences punishable).

Mr GLYNN:
Angas

.- In clause 13 it is provided that information may be laid and prosecutions commenced by any person. Some of the offences dealt with here are comparative novelties, and in one or two instances the power of any person to prosecute is cut down. In some cases, but not in this part, the Attorney- General must first give his consent. I hope that too much power to commence prosecutions will not be given to individuals, especially in regard to offences that are new. Another point to which I draw attention is this: In some of the States notwithstanding the limitations imposed upon the Courts of summary jurisdiction, there are cases in which, on the person charged exercising his option to be tried before those Courts instead of being committed for trial, he may, if the circumstances allow, receive a severer punishment than it is ordinarily within the power of such Courts to inflict. In South Australia that is provided for by -what is known as the Minor Offences Act. I do not know whether the Bill preserves this arrangement. In some of the States magistrates may not imprison for a longer period than six months, but, if at a preliminary inquiry-before a magistrate an offender exercises his option to be tried at once, imprisonment of two or three years may be inflicted on him.

Clause agreed to.

Clauses 13 to 16 agreed to.

Clause 17 (Offenders previously convicted).

Mr GLYNN:
Angas

.- It is provided here that if a person who has been convicted is again charged with an offence, which may not be the same kind of offence as that for which he was convicted, the maximum penalty shall be doubled. The provision is taken from the Queensland code, and I do not think appears in the jurisprudence of the other States. Generally the maximum penalty is a large one, and Judges inflict a heavy penalty for a second offence.

Mr GROOM:
Darling Downs

– It seems to me that the marginal note needs amending. The reference to section 630 of the Queensland consolidated code is* incorrect.

Clause agreed to.

Clause 18 (Indeterminate sentences).

Mr GLYNN:
Angas

.- The clause opens up a rather vexed question, which I shall not delay the measure by discussing. In some States the principle of indeterminate sentences has been applied, though not to any great extent, but there has been a good deal of debate as to its efficacy. We are now adopting it without discussion. I hope that the AttorneyGeneral has some information as to its desirability.

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– The principle lias been adopted in the criminal code of many countries, and in that of some, if not all, of the States of Australia. I admit that arguments may be advanced against it, but the penologists and criminologists are in agreement that the power to impose indeterminate sentences is necessary to deal with the habitual criminal.

Mr Glynn:

– You may be covering a wider class than is intended.

Mr HUGHES:

– I give the honorable member my assurance that I will ascertain the authority upon which the clause is based - the Statute which it follows - and that if there is a departure from the existing law I will consult him before the measure gets through the secondreading stage in another place.

Clause agreed to.

Clauses 19 to 24 agreed to.

Clause 25 (Treason).

Mr GLYNN:
Angas

.- I merely wish to call attention to the fact that in this clause the Queensland code has been varied. Of course that does not matter so long as the variation is all right. The clause provides that -

Any person who within the Commonwealth or any territory -

instigates any foreigner, &c. whereas the Queensland code enacts that “ any person at war with the Sovereign, &c.” It will be seen, therefore, that the latter is a much more restrictive provision.

Clause agreed to.

Clause 26 agreed to.

Clause 27 (Assisting prisoners of war to escape).

Mr GLYNN:
Angas

.- I would point out that in this clause there is also a variation from the Statute from which it has been taken. It declares that any person who “knowingly” aids an alien enemy, &c, whereas the Queensland Act provides that “ any person who knowingly and advisedly” aids, &c.

Clause agreed to.

Clause 28 agreed to.

Clause 29 (Interfering with political liberty) .

Mr GLYNN:
Angas

.- This provision seems somewhat anomalous. It provides’ that any person who, by violence or threats or intimidation, interferes with the free exercise by any other person of any political right or duty shall be guilty of an offence, and shall be liable to a term of imprisonment. Under the State law a person cannot be charged with preventing a man from discharging his political duties, although if he molests him in any way he becomes liable for assault, and, apart from molestation, may be liable for damages. But the political aspect of the matter is not covered by the ordinary State laws. In this clause we have a codification of the Queensland law which was enacted in 1889, and portions of that law were pretty old-fashioned even then.

Clause agreed to.

Clause 30 agreed to.

Clause 31 (Seizing goods in Commonwealth custody).

Mr GLYNN:
Angas

.- These clauses are pretty drastic. They deal with the destruction or interference with property. Clause 50 of the Bill is apparently designed to deal with such cases as that of the seizure of property by the New South Wales Government. Beading through the Bill, I have come to the conclusion that in some cases the abettor is to be visited with a bigger penalty than is the principal offender. However, I merely draw attention to the matter.

Clause agreed to.

Clauses 32 to 34 agreed to.

Clause 35 (Judge or magistrate acting oppressively or when interested).

Mr GLYNN:
Angas

– I confess that I do not know the authority from which this clause has been taken. I think thatprovision exists in the Queensland code for dealing with this very old offence - the offence of requiring excessive bail. I had thought that such offences had died out of the Statute.

Clause agreed to.

Clauses 36 to 49 agreed to.

Clause 50 (Removing property under seizure) .

Mr GLYNN:
Angas

. -Here, again, I desire to call attention to the fact that different penalties are provided for what are practically the same offence. For instance, clause 31 imposes a maximum penalty of one year’s imprisonment for certain offences in relation to seizing goods which are in the custody of the Commonwealth.

Mr Groom:

– But in the present clause something more than a seizure is involved.

Mr GLYNN:

– I know that. But under this clause the actual penalty provided for tampering with property is two years, instead of one year. It may be deliberately done, but I merely call attention to it.

Mr Hughes:

– It is all right.

Clause agreed to.

Clauses 51 to 70 agreed to.

Clause 71 -

Any person who, being a Commonwealth officer, publishes or communicates any fact which comes to his knowledge by virtue of his office, and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office, and which it is his duty to keep secret, except to some person to whom he is authorized to publish or communicate it, shall be guilty of an offence.

Penalty: Imprisonment for two years.

Mr GLYNN:
Angas

.- I see it is noted that this clause has also been taken from the Queensland Act. It is a pretty wide provision, and I hope that it has been considered. “A Commonwealth officer.” I take it, includes a Minister. There is a penalty up to two years’ imprisonment imposed upon any one whose duty it is to keep a secret, and who does not do so. I suppose that the same penalty will apply to both sexes. If a Minister should disclose the contents of some official document, I suppose it will come within the meaning of the provision. The safeguard, I think, is that the AttorneyGeneral will have to consent to a prosecution under this part of the Bill. I am not sure, but I think that that is so.

Mr Hughes:

– Yes.

Mr GLYNN:

– Even against himself.

Mr Hughes:

– Yes.

Mr GLYNN:

– I hope it is so. This means that such an indefinite thing as not keeping an official secret will subject the person who commits the offence to a penalty up to two years’ imprisonment. The provision is somewhat novel. It appears in the Queensland Act, but I do not know where else it does appear. My impression is that you must be explicit as to what has to be kept secret. I do not think it will cover the disclosure of a document marked “ Confidential “ as between a Minister and the Secretary of State for the Colonies, because there is no imperative duty to any one there.

Mr Hughes:

– Just turn up the provision in the Queensland Act and see what it is.

Mr GLYNN:

– I think that the secrecy must be imposed by the official superior, and must be clearly made a matter of secrecy, and then if the officer should break that he will commit an offence.

Mr Hughes:

– If the honorable member will leave this clause in the same position as the others, I will consult him about the point.

Mr Fisher:

– Is it not governed by the words “ and which it is his duty to keep secret “?

Mr GLYNN:

– I think it is the disclosing of knowledge which the officer ought to keep secret, but are we quite sure as to what class of knowledge that is ? I will say no more about the matter.

Clause agreed to.

Clause 72 -

Any person who, being a Commonwealth officer, steals, or fraudulently misappropriates or converts to his own use, any property belonging to the Commonwealth or any public authority under the Commonwealth, shall be guilty of an indictable offence.

Penalty: Imprisonment for seven years.

Mr HUGHES:
AttorneyGeneral · West Sydney · ALP

– I move -

That after the word “ Commonwealth,” line 5, the following words be inserted - “ or any property which has come into his possession by virtue of his employment.”

The object of this amendment is to cover cases of embezzlement.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 73 to 91 and title agreed to.

Bill reported with an amendment.

Standing Orders suspended, and Bill passed through its remaining stages.

page 270

COMMONWEALTH BANK BILL

Mr FISHER:
4Prime Minister · Wide Bay · ALP

– I desire, by leave, to introduce a Bill to amend the Commonwealth Bank Act 1911.

Mr Joseph Cook:

– No; there is no hurry about it.

page 270

SPECIAL ADJOURNMENT

Motion (by Mr. Fisher) agreed to -

That the House, at its rising, adjourn until Wednesday next.

page 270

ADJOURNMENT

Organization of Industries - Mutilation of Shade Trees

Mr FISHER:
Prime Minister · Wide Bay · ALP

– In moving -

That the House do now adjourn,

I wish to thank the Opposition for allowing us to pass four Bills. I desire to express my appreciation of their action, because these matters were really urgent.

Mr FENTON:
Maribyrnong

– I desire to refer to a matter which, in a sense, is, perhaps, of too much importance to bring up on the motion for adjournment ; but I take the opportunity of asking the Prime Minister whether, in these exceptional times, the Government are taking any action to take the lead in organizing industries. We aTe going to have an amendment of the Tariff, which will help us considerably; but a great deal more can be done in many ways to 0 give a fillip to Australian industries. I trust the Government will take the lead in the matter, even if they go to the length of calling men who are worth consulting throughout the Commonwealth into conference, in order that a strong campaign may be instituted in favour of promoting Australian industries. We should endeavour, not only to regulate, organize, and consolidate those already in existence, but also to do everything possible to establish new ones. When the war cloud lifts, which we hope will not be long, I trust Australia will be so organized industrially, commercially, and in a trading sense, that we shall be able to take full advantage of the opportunities that must accrue as a consequence of the war. I hope that every phase of commercial and business life, as well as the employes, will be represented in the conference that I suggest, in order that some organization may be formed with this national object in view, so that we may be able, when the war is over, to take our stand among the nations of the world in supplying those things for the manufacture of which we have millions of pounds’ worth of raw material in this country.

Mr GROOM:
Darling Downs

– Will the Prime Minister bring under the notice of the Postmaster-General the matter of the mutilation of shade trees in the streets of various cities? This is a question of some moment to a good many cities in Australia. At Toowoomba, in particular, some beautiful trees, which form part of a scheme that has been fostered for years to improve the appearance of the city, have been injured. The Department should devise some method to minimize the mutilation of shade trees.

Sir John Forrest:

– Does the honorable member refer to the telegraph and telephone wires? It is too bad.

Mr GROOM:

– Yes. We have recently had visits from town-planning experts who have been preaching the beautification of our cities, and it seems a pity that something cannot be done in the direction I have mentioned. These trees take years to grow, and it seems rather drastic to mutilate them for the sake of getting the poles and wires along. Probably a little care and thought might have devised a method of providing the telephonic facilities, which are absolutely necessary for the people, and at the same time preserving the beauty of the trees.

Mr FISHER:
Prime Minister · Wide Bay · ALP

– I quite agree with the honorable member. We Australians are more or less an artistic people, and the shade trees have a value of their own, apart altogether from the artistic view point. I shall be glad to again invite the attention of the Postmaster-General and of the Public Works authorities to the matter, so that the mutilation of the beauty spots in the way of trees may be, as far as possible, avoided. One way to do it would be to underground most of our wires; but that is a grave matter of policy.

Sir John Forrest:

– The wires could be taken along side streets instead of along the main streets, as they generally are. now.

Mr FISHER:

– As the right honorable member and the honorable member for Darling Downs have been about twice as long in office as I have, I can hardly be accused of being the cause of this trouble; but I quite agree with their ideas on the subject.

I am entirely with the honorable member for Maribyrnong regarding the question of organizing industries. Indeed, I go much further; but I find that there is a constitutional difficulty more or less embarrassing from our point of view. The Government have, however, with a view of attaining the object that the honorable member has put forward, asked the representatives of the States to come to Melbourne in about a fortnight or more, to consider all these matters, together with others, with a view of endeavouring to arrive at an understanding or agreement which will enable us to proceed with any such enterprises, and so help to prevent unemployment at the present time, whilst at the same time developing national industries, which will place Australia, even in times of peace, in a safer position than she occupies to-day. I cannot go any further than that. Something like seven years ago this House unanimously carried a motion in favour of the nationalization of the iron industry; yet to-day we are no further for ward in that respect than we then were. I believe that a vast number of the people of Australia are in favour of such an essential commodity as iron being manufactured in Australia in at least sufficient quantities to meet our own requirements. If we can come to an arrangement that will enable us to proceed with the work, it will be well for the country.

Question resolved in the affirmative.

House adjourned at 5.47 p.m.

Cite as: Australia, House of Representatives, Debates, 21 October 1914, viewed 22 October 2017, <http://historichansard.net/hofreps/1914/19141021_reps_6_75/>.