6th Parliament · 1st Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
Rabaul Court Martial : Character of Recruits: News of Casualties: Postage on Newspapers : Australian Information concerning Forces.
– It is stated in this morning’s newspapers that at an Executive meeting yesterday it was determined to release certain prisoners who were sentenced to terms of penal servitude by a court martial at Rabaul. Is the newspaper statement correct, and, if so, will the Acting Prime Minister tell the House why the men are to be released, and lay on the table the papers connected with the case?
– An Executive warrant for the release of the persons referred to was granted yesterday. The matter falls within the province of the Minister of Defence, but I know of no reason why the papers connected with the case should not be laid on the table of the House, and 1 shall see that that is done.
– Has the Assistant Minister of Defence seen the statement in to-day’s newspapers that a young man was about to be sentenced for housebreaking when his lawyer asked that he might be allowed to go free, as be intended to join the Defence Forces? If such a request was made will not the Defence Department raise an indignant protest against anything of the kind being done?
– I have not seen the report referred to. It is for the Minister to deal with these matters. I do not think that he will encourage the course suggested.
– It has been stated in the press that in the case of casualties affecting officers the news would be conveyed to relatives through some suitable channel, preferably through a clergyman, but that in the case of the rank and file it would be conveyed direct by telegraph or by special messenger. Is it intended to make an invidious distinction between officers and men in the sending of news of casualties to their relatives? If so, will the Assistant Minister Bay what is the reason for the making of such a distinction?
– When the Department receives news of the deaths of officers or of privates the Commandant of the State from which the soldiers came is at once informed, and he ascertains the religious belief of those concerned, and asks the clergyman of the denomination to which they belonged, in the town or district nearest to where the relativesare living to inform them of the event, so that the news may be conveyed to them as considerately as possible. In the case of wounded men the news is telegraphed direct to the nearest relative.
– In reply to a question asked by the honorable member for Perth regarding postage on newspapers to members of the Australian Expeditionary Forces in Egypt, I desire to inform the House that I have cabled to the British Postmaster- General asking him to make arrangements with the authorities 0 Egypt, if possible, so that the same rates of postage on newspapers will apply to Egypt as apply between Australia and the United Kingdom; that is, a ship rate of Id. Der 16 ounces.
– There has just been handed to honorable members a printed newspaper slip detailing a statement made by Mr. Asquith in the House of Commons, I presume yesterday, concerning the operations of the Australian and other troops, particularly in the Dardanelles. Would it be possible to obtain similar information for presentation to this House a little earlier than is now the case ? Twelve days have elapsed since the incidents referred to occurred ; and we now learn of them for the first time from the mouth of the Prime Minister in the House of Commons yesterday. I am making no sort of complaint, nor do I desire to do anything to interfere with the successful carrying out of strategical operations in that part of the world. It occurs to me, however, that during the twelve days the Minister of Defence might have obtained a similar statement for communication to the House, at least as early as that made in the House of Commons by Mr. Asquith. I suggest that that might be done in the future, so that we may receive earlier information as to what is actually taking place.
– I think I ought to inform the House that yesterday I despatched a cable on behalf of the Government, pointing out how very keenly interested the Australian public is in the campaign, particularly that part in which the Australians are engaged. I urged, practically in the terms, and for the reasons used by the Leader of the Opposition, that efforts should be made to have such news sent to us at the earliest possible moment. I pressed the matter very strongly, and I have no doubt the Imperial Government will permit the news to come through with more expedition.
– I ask the Minister of Home Affairs whether the statements in this morning’s Argus are a correct report of utterances concerning Mr. Griffin’s work made by him to .» representative of that journal ?
– As I have not seen this morning’s Argus, I do not know what is in it.
– I shall hand the Minister a copy of the newspaper, so that he may give me a reply later.
– Will the Acting Prime Minister ascertain whether America was a party to the treaty which guaranteed the neutrality of Belgium ? ExPresident Roosevelt and other American public men have made conflicting statements on the subject, which leave us, inAustralia, in considerable doubt as to the true position of America in the matter. A statement from the honorable gentleman would have the effect of clearing away any misunderstanding.
– I shall ascertain the parties to the pact for the maintenance of the neutrality of Belgium and give the information to the House.
– As there is likely to be a shortage of sugar in Australia, I ask the Minister of Trade and Customs if the Government has power to act on lines similar to those followed by the British Government in purchasing sugar for the nation. If it has not that power, will it get into touch with the Premiers of the States, and co-operate with them in providing sugar at reasonable rates for the inhabitants of Australia?
– I do not think that we have the same power as the British Government possesses in regard to the purchase and distribution of supplies.
– Remove the duty, and there will be plenty of sugar.
– I do not think that the duty affects the position.
– Exportation can be stopped.
– It was stopped within twenty-four hours of our coming into office.
– Why cannot this Government purchase the necessary sugar, and allow the Governments of the States to distribute it?
– I shall have the matter inquired into. Several questions have been asked on the subject.
– Surely the States can look after their own people.
– The matter is a difficult one to deal with. We are all anxious that the . consumer should not be penalized by having to pay too much for sugar, and if anything can be done to prevent that this Government will do it.
– In the event of the Government purchasing black-grown sugar to sell to the people of Australia, will he see that the white sugar-growers of Australia are not placed at a- disadvantage?
– The Excise and bounty on sugar having been abolished, there is now no distinction in Australia between black and white-grown sugar. The Excise and bounty were abolished by the Government of which my honorable friend was Whip.
– My question referred to importation.
– As we do not make any distinction within Australia, it would be difficult to make any outside Australia.
– Will the Minister of Trade and Customs say whether, in his reference to the abolition by the previous Government of the Excise and bounty on sugar, he intended to convey a desire to dissociate himself and the present Government from that action; if so, does he propose to reimpose the duties of Excise and the bounty ?
– If the Government had any intention of reimposing any duty they would not be so unwise as to give notice of the fact. There is no differentiation in Australia between sugar grown by black and white labour, and the action which the previous Government took, would, I believe, be taken by any other Government.
– I ask the Acting Prime Minister if action is being taken at the Premiers’ Conference by the Commonwealth Government, in concert with the Governments of the States, to deal with the fodder famine that now rages in Australia. The States are not handling the matter rightly.
– If the honorable member will put his question on the notice-paper, I shall endeavour to answer it.
– The Conference will have concluded its sittings before that can be done.
– 1 ought not to beasked to give an answer which might reflect on the action of the States without having an opportunity to inquirewhat the States are doing in this matter.
– In view of the statement of the honorable member for Wannon asto the ineffectiveness of the steps taken by some of the State Governments for supplying fodder to the starving stock of Australia, will the Minister of Trade and and Customs take into consideration the purchasing of fodder for the relief of the agriculturists and pastoralists ?
– I do not think the Commonwealth has the power to take such action.
– The Commonwealth can buy the fodder.
– We could buy the fodder outside Australia and bring it intothe Commonwealth, but I do not think the Constitution gives us the power todeal in the commodity.
– The free interchange of fodder between the various States having been practically prohibited by the actions of the State Governments, will the Acting Prime Minister confer with the States with a view to the purchase abroad’ of any shortage of fodder and its sal© todistressed persons at a rate below the imported price, so that common-sense actionmay be taken to save the stock of thecountry from dying while the public debt” is rising ?
– This matter is one of the greatest possible importance, and I will go so far as to promise to communicate with the Prime Minister, who is attending the Premiers’ Conference, and ask him to confer with the Premiers in regard to the honorable member’s suggestion. In that way more than any other shall we be likely to achieve what the honorablemember desires. The Commonwealth Government will be very glad to do anything within their power to assist the” pastoralists and others on the land in tha very great difficulties in which they find themselves.
– Would I be in order, Mr. Speaker, in asking a question of the honorable member for Wannon?
– An honorable member can only question another honorable member if his question relates to business before the Chamber. If I were to allow questions to be put from one private member to another private member, I am afraid there would be endless chaos in our proceedings.
– My question is this: In view of the honorable member’s suggestion regarding the assistance of agriculturists by the importation and sale of fodder by the Commonwealth, will the honorable member for Wannon be prepared to support an amendment of the Constitution to give the Commonwealth power to take such action!
– Order ! A question of that nature cannot be asked, and I appeal to honorable members not to put such questions to one another.
– Following on the question yesterday regarding the agreement between the Premiers and the Prime Minister concerning State borrowing, is the Acting Prime Minister now able to make available to honorable members a copy of that agreement, and to have it printed, so that they may ‘ have ready access* to it ?
– Yesterday I communicated with the Prime Minister on the subject, and have now before me the original memorandum of agreement which was entered into on the 5th November, 1914, between the Prime Minister on behalf of the Commonwealth, and the Premiers of New South Wales, Victoria, South Australia, Western Australia, and Tasmania on behalf of their respective States. By that instrument the Commonweatlh agreed to lend to the States a sum aggregating £18,000,000, and the States engaged not to borrow otherwise during a period of twelve months from the date of the agreement except for renewals of existing loans falling due. It was arranged, however, that the States might sell Treasury bonds over the counter to an amount not exceeding the sales in a normal year. I cannot allow the document to go out of the possession of the Department, but any honorable member may have access to it.
– Is the document signed ?
– Certainly; by Andrew Fisher, W. A. Holman, Alexander Peacock, Henry Peake, J. Scaddan, and J. Owen.
– Evidently it is only a “ scrap of paper.” Will the AttorneyGeneral have that document printed ?
– I shall communicate with the Prime Minister, and subject to his approval I shall have the document printed, if the right honorable member wishes that to be done.
– Can the Assistant Minister of .Defence inform the House what progress the dredger which is being sent from Melbourne to Western Australia has made ?
– So far as I know th& vessel referred to is making splendid progress. The last information I received was that the dredger and a steamhopper barge were off Cape Leeuwin,, which is not a great distance from Fremantle.
– In view of the statement made by the Attorney-General! that the Government are anxious to assist the pastoralists, graziers, and! farmers in connexion with the scarcity of fodder, I wish to ask the PostmasterGeneral whether lie will reconsider hisdecision with regard to mail contractors, and either allow them to terminate their contracts and release the sureties, or meet the difficulty by placing on the Estimates a sum to assist deserving cases ?
– That matter .is under consideration. I am now ‘getting furtherinformation before coming to a final decision.
– As there is aconsiderable amount of dissatisfaction inregard to the slow progress of the works= at the Federal Capital, will the Minister of Home Affairs make a statement to the House as to the actual works in progressand the number of men employed?
– If the honorablemember will place a question on thenoticepaper I will supply the information next week.
– In view of the fact that during the last month three small land-holders have been forced into ruinous litigation iu the High Court in connexion with land resumption in the Federal Territory, will the Minister of Home Affairs endeavour to have established some system of arbitration in connexion with future resumptions?
– I should like any question relating to the three cases mentioned to be placed on the. noticepaper; but, so far as concerns the general question, I will look into the matter of establishing a system of arbitration for future resumptions.
– Has the attention of the Attorney-General been directed to the issue of a paper called the Woman Voter, published in this State, and dated the 4th May, in which appeared an article purporting to be signed by a woman by the name of Adela Pankhurst-
– A lady, if you please!
– A woman. The article is oF a very inflammatory and seditious character. If the Attorney-General’s attention has not been called to the matter, will he examine the paper with a view to preventing the repetition of any such dangerous nonsense at the present time?
– I have not seen the article referred to. I have certainly heard of the name of Pankhurst, but as I have never been struck by the lady, I” have no knowledge of what she has written or said. If she has written anything to which the honorable member takes exception - and I can quite understand she would - I shall be glad to have my attention drawn to it.
– Would I be in order, Mr. Speaker, in directing attention to some passages of the article to which I have referred?
– I am not aware of the nature of the article which the honorable member desires to quote. I desire to assist honorable members as far as possible in eliciting information by way of questions, but if I allow certain newspaper extracts to be read, I do not see how I shall be able to prevent the reading of a whole leading article. I think it would be preferable for the honorable member to submit the article inquestion to the Attorney-General.
– Will the Attorney-General have a Committee of this House appointed to have that “sister” investigated?
– I can only say that, if I d’o appoint any such Committee, I shall make the’ honorable member its. chairman.
– Has the attention of the Attorney-General been drawn to a statement in the newspaper cables that the British Treasury has refused to allow the Broken Hill Company to raise sufficient capital for the further development of the zinc-smelting industry in Australia? Can, the honorable gentleman say whether this refusal, on behalf of the British Government, has any reference to the legislation now before this House in connexion with the breaking or otherwise of contracts?
– I did notice the paragraph, and I apprehend that it has reference to the general prohibition issued some time ago in regard to new flotations. No doubt there is a very excellent reason why there should be some generalized control over new- flotations at the present time. It would hardly, I think, be proper for us to protest in. this matter. The question, no doubt, was raised by the measure introduced last evening, but the manner in which capital is to be obtained is a matter with which we are not concerned. In the circumstances, I can hardly think it necessary, or even proper, to take any steps towards communicating with the British Government.
– Perhaps I might be allowed to make my question a little clearer. What I desire to know is whether the Government are in a position to give us any information indicating that this action on the part of the British Government has any reference to impending legislation here in connexion with contracts ?
– We have no information that this action is other than the effect of the general prohibition in regard to new flotations. We have no special information in reference to the matter.
asked me whether it would not be possible to have the reports of the Inter-State Commission bound for issue to honorable members. These reports, I may point out, are coming in day after day, and to have each one bound separately for each honorable member would involve a considerable expense.
– My suggestion was that the whole of the reports should be bound in one volume.
– Of course, any honorable member who desires can have these reports bound, much in the same way as the Estimates are now bound.
– Would it not be possible to have some sort of file provided on which honorable members could keep these reports?
– Thereis some little difficulty about the filing of Bills and other documents at the present time. A file of Bills is provided for each honorable member ; but I notice that, as a rule, honorable members content themselves with the Bills that are laid uponthe table, and scarcely use their files. My own opinion is that it would be better to do away with these Bill files altogether, and rely upon the Bills placed on the table. This would have the advantage, at any rate, of saving considerable trouble and cost in printing. As to the reports of the Inter-State Commission, I shall see whether some arrangement can be made for their filing. Yesterday the honorable member for Cook asked me a question concerning the reports laid on the table by the Public Works Committee, and suggested that there were certain plans and other documents that should have been attached to the reports; but even if that be so, we here officially know nothing about them. It is for the Public Works Committee to take the necessary steps to have such maps and documents made available.
-I should like to know whether, when it is proposed to print areport of the Public Works Committee, it would be in order for an honorable member to examine it before the
House orders it to be printed, and move for the inclusion of any maps or documents that might be necessary to make it intelligible ?
– When a report is submitted by the Public Works Committee, the question is put that it be printed, and on that question there may be debate, in the course of which any honorable member can make what suggestions or complaints he chooses. Indeed, an honorable member could go so far as to move that the report be referred back to the Committee.
– As a matter of procedure, I should like to know whether, when it is proposed to refer certain works to the Public Works Committee, an honorable member may discuss the question and raise objections to the works being so referred ? Unless there is liberty of discussion in this regard, works may be quite unnecessarily referred to the Committee.
– I am afraid the honorable member will have to leave that matter to be decided when the question arises. He is placing a hypothetical case before me on which I cannot express an opinion.
– I should like to have the matter raised by the honorable member for Cook cleared up a little. Do I understand that it is not considered to be obligatory on the part of the Government to print whatever plans are presented to this House with reports? It can readily be understood that a report, without plans and so forth, might be quite unintelligible.
– The reports are printed as laid on the table by the Public Works Committee, and we can do no more. If there are other papers connected therewith, we know nothing about them officially. It is for the Public Works Committee to present plans and so forth with their reports, and we can print only those papers that the House orders to be printed.
Mr.BRUCE SMITH. - Is it not a rule that the Minister under whose control the Public Works Committee is shall move that the papers be printed ? Is it not his duty to see that the report he is asking leave to print is a complete report, including plans?
– The Government have nothing whatever to do with the matter. The Public Works Committee were appointed by this House to inquire into certain matters referred to them by the House, and when they present a report, and the motion is made that it be printed, I merely put the question. The matter is then open for debate.
– I can only say that in the case of the New South Wales Government, a Minister always moves that the report be printed, inasmuch as, while the presenting of the report is a matter for the Committee, the printing of it is a Government matter.
– As a matter of fact, the reports of the Public Works Committee are actually in print before they are presented here, and the motion to print is a formal matter.
– I suggest that you, Mr. Speaker, should make inquiries and ascertain precisely the procedure that is adopted in the two large States where similar Committees are already in operation.
– I shall make inquiries
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are - 1, 2, and 3. It is not proposed to enter into further inquiries for the reason given in the report tabled on the 30th ult., and because experience shows that such inquiries produce no practical results.
The number of cases in which names were marked more than once on the certified lists of voters used at the 1914 elections is below that which in the light of experience might have been expected to have resulted from error or misunderstanding.
– It seems we have the only perfect system.
– We have a remarkably good and clean system.
asked the Postmaster-General, upon notice -
Whether it is a fact that, owing to many officials having gone to the war, the staff at the head parcels office, Sydney, is short handed, and, as a result, the men are overworked and their effectiveness is impaired?
– The Deputy PostmasterGeneral, Sydney, reports that the staff referred to is not short handed, and that the officers are not working overtime; on the contrary they are working undertime.
asked the Assistant Minister, representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are -
Of the remainder, it is estimated that about 200 can be treated and made fit- their state being only temporary. Treatment will not interfere with their training, which can be continued at Broadmeadows.
Of the remainder, many were found who appeared to have never been medically examined; for instance, several who were supposed to have been measured by members of the Permanent Staff were 2 inches under height, and when questioned as to where they were passed mentioned the depét where no medical examination had taken place. Others had very marked and gross conditions, such as large hernia, bad varicose veins, and deformed feet. In addition to such cases, a considerable number of young recruits showed evidence of fatigue, and it was not considered likely they would stand the strain of active service.
asked the Assistant Minister, representing the Minister of Defence, uponnotice -
– The answers to the honorable member’s questions are: -
asked the PostmasterGeneral, upon notice - 1.Is it intended by the Department to transfer all male telephonists of twenty-one years of ago to some other position ; if this is impracticable, will the Minister make an allowance between the present salary and that to which the Postmaster-General proposes to transfer such officers, until the departmental convenience can bo met by the appointment of additional telephonists to fill their places? 2.Is it a fact that some telephonists in Sydney work night duty for six months out of the year; if so, is it proposed to make any extra payment for night duty?
– Inquiries are being made, and replies will be furnished as early as possible.
asked the Minister of Trade and Customs, upon notice -
Whether it is a fact that before the departure of the Endeavour on her last trip, ocean bound, a requisition was made for her tobe fitted with wireless apparatus ?
– No requisition or request of any kind was made that the Endeavour should be equipped with wireless.
The following papers were presented : -
Defence Act - Military Forces - Financial and Allowance Regulations Amended (Provisional) Statutory Rules 1915, No. 45.
Northern Territory - Ordinance of 1915, No. 3 - Roads.
Debate resumed from 6th May (vide page 2963) on motion by Mr. Hughes -
That this Bill be now read a second time.
Mr.GLYNN (Angas) 11.19].- While fully sensible that the Attorney-General has introduced this measure purely with a view of furthering the public interest, I think that, considering that Imperial interests of great magnitude are very materially involved, and that local interests are likewise concerned, we must be excused if we carefully look into what appears to be its effect. One would naturally wish that there was more time to devote to its consideration than the circumstances of the session so far have permitted. Some two months ago a deputation attended on the Secretary of State for the Colonies, Mr. Harcourt, to remonstrate against the suggested policy of interfering with these international, or, from our point of view, external, contracts, and the answer given by Mr. Harcourt indicated that it was not the desire of the Imperial Government that the risk of interfering with such contracts should be taken. One can understand this attitude when one remembers that the external trade of the United Kingdom in 1913 - and happily it has been affected, comparatively speaking, to only a small extent by the war - totalled £1,404,151,000; that the trade between Austria and Germany and the Allies and America totalled about £423,000,000,and that a very large part of that trade was practically commanded by the United Kingdom. The British Empire has about 26 per cent. of the world’s trade. These figures should suggest to us the desirableness of not hurriedly or, if I may so put it, blindly interfering with contracts that are so directly related to our trade that we cannot clearly apprehend all the consequences that must ensue. Let us take another view of the Imperial position. The investors of the United Kingdom receive every year about £200,000,000 from investments abroad of a public or a semi-public character. War, of course, does not interfere with them.
– I have an idea, but I want to be accurate. I examined the statistics some four or five months ago, and the impression of the larger figures still remains with mc. The Minister of Home Affairs knows that the largest proportion of the export trade to the continent was with Germany. As a matter of fact, before the war, Germany, I think, was one of the best consumers, if not the best consumer, of the manufactured products of the United Kingdom. These figures must give us some idea of the contractual relations which existed at the time of the war, and which would be affected if the Imperial Government and Germany were to adopt the policy that is embodied in this Bill. When interrupted, I was about to point out that, apart from this rich return from investments abroad o f a public or semi -public character, and 96 per cent, of which is uninterrupted by the war, which shows what our Fleet is able to do, the United Kingdom has large investments of a business character abroad. The figures are really colossal, but for the moment I cannot recall them. All this trade largely depends on contracts and agencies, as well as on our system of international clear.ances Then again, the value of imports of British possessions from Germany and Austria before the war was about £108,000,000. This trade, reciprocally speaking, is a beneficial trade on both sides. The figures show that it has been a very beneficial trade. I may mention that the Commonwealth trade with Germany, which, roughly speaking, probably reached the volume of £15,000,000, suggested last night by the Attorney-General, is one which, on the figures alone, indicates that we reap large benefits from it or did before the’ war, since the volume of. our exports to is actually greater than the volume of our imports from, Germany. That difference may be explained to some ex tent by the fact that there is a difference in the method of estimating values and that the final adjustments of this trade are balanced up in the United Kingdom. But, in the light of all these facts, we ought not to act too hurriedly or without a full sense of what will be the Imperial effect of the legislation we are asked to pass. Let us look for a moment at the particular industry that is touched by this measure, and which, as the AttorneyGeneral has said, is the mineral industry. The total volume of mineral production in 1913 was £25,810,000. The whole of this, of course, is not exported. If we take silver and lead, copper, tin and zinc, we find that the value of these products is £10,734,000, of which tin represents £1,402,000. The export proportion of these values is not all with belligerent countries. Our mineral exports, no matter to what countries the export may be, represent but a small proportion of our total exports, or, to put it more strongly, of our total production. All these exports are not affected by contracts. I wish that I were able to put the actual figures before the House, but it has been impossible to collate and check them in the time at our disposal. Broadly speaking, I think it will be found that those which I have given are correct. As a matter of law and fact, I think that the real evil to which the AttorneyGeneral directed his statements is in relation only to contracts entered into before the war, and the operation of which by common law as well as by Statute is suspended during the war. Some local parties to these contracts may have a doubt - I do not say it is more than a doubt, even if it. is a doubt, of any importance - as towhether, if they carried on trade, or exported without regard to these contracts,, they would find themselves in a position of difficulty, because of those contracts, at the expiration of the war. It may be also that they wish to be able to enter into new contracts, and these in turn may be a source of other evils. They wish to know whether they may, as a matter of law, disregard any conditions of a contract that would prevent them exporting or selling to other than the parties to the contract. I believe they may disregard them now, but they may wish . to know whether, at the end of the war, the suspension of the contract being at an end, they would not be bound, to the parties to the existing- contract, and the fear of anything of the kind may be hampering their present operations. I think I may say that, so far as we can assist to free the hands of local contractors in cases of this character, the Opposition will be prepared to help the Attorney-General. But I think that we can show that the Bill goes far beyond that assumed necessity. It is more than a War Bill. It goes beyond the war, because it also interferes for all time with these huge contracts of the metal and other companies, seeing that it does not abrogate them merely for the purpose of freeing the minds of the contracting parties from all doubt as to their position.
– It may cut two . ways.
– Yes, I think that such an effect can be shown; but what I more particularly urge is the need to be cautious in not going beyond the limits of what clearly is necessary, until our minds are allayed by any facts the AttorneyGeneral can bring forward as showing that ‘necessity. It is not my place to go into the question of the contracts referred to by the Attorney-General, because I do not know sufficient of them, though the fact that the companies ‘do not seem to have directed the attention of honorable members to their position is significant. Possibly, and very properly, they have gone to the Attorney-General direct, seeing that he was the Minister who could give them aid by legislation, but, ‘as a general rule, where grievances are very deep-seated, honorable members hear of them directly. 1 cannot say much upon the question ot contracts, because we cannot have the opportunity of judging whether the surmises of the Attorney-General, based oh official knowledge, are correct, though there is evidence that many of these interests are somewhat afraid of the result df this legislation ; but honorable members, such as the honorable member for Balaclava, -who has a m ore intimate knowledge of the matter, and who has a better opportunity of acquiring it than I have, will throw light upon it during the course of the debate. Nevertheless, I may be excused from showing what, apart from the Bill before us, is the position of these contracts. The question of enemy contracts is already part of the law relating to trading with the enemy, a contract being merely one instrumentality of trading; and the law books generally deal with enemy contracts under the heading of Enemy Trading. We have already legislated upon the subject of enemy trading. Our Trading with the Enemy Acts provide that imprisonment for seven years may follow conviction on an indictment for trading with the enemy, which is a very effective deterrent to such trading. Trading with the enemy has an exceedingly wide scope. It may include acts so innocuous, as a matter of fact, that one authority has described the legislation, owing to the penalties that may be imposed, as being to a large extent vindictive, which was never intended to be the case. I do not believe that there are in the law books four or five cases of prosecutions for trading with the enemy before this war broke out. In fact, I do not know that there are more than two cases. Certainly there have been very few, if any, cases of trading with the enemy of the class defined by our proclamations and Acts, because it was often found very beneficial by both nations at war to wink at what was going on, and licences to trade with the enemy were freely granted during the Crimean War and the Napoleonic wars-. We already have proclamations supported by our Trading with the Enemy Acts which cover a very wide sphere. I do not intend to go through the matters dealt with, in those proclamations, because honorable members can see them for themselves, but I wish to refer to a proclamation published in the Gazette on the 12th September, 1914, and covering part of the field embraced by the measure before us, seeing that it declares that it is against the proclamation “ to enter into any commercial, financial, or other contract or obligation with or for the benefit of an enemy.” As I have said, part of the Bill before us is covered by an existing proclamation. There is also power given under the Trading with the Enemy Acts to the Executive, by Order in Council, to prohibit trade of any other class than that dealt with in the paragraph which I have just cited, although that trading might be otherwise lawful. Therefore, very wide powers are capable of being exercised under our Trading with the Enemy Acts and proclamations. Let me now deal with the definitions clause. I refer to this matter in order to show the need for caution in drafting-. In our definition of “ enemy subject” we have defined an enemy company in terms of the Trading with the Enemy Acts, but not, unless they have been modified, in the terms of the earlier proclamations issued under those Acts. For instance, the proclamation of the 12th September, 1914, declares that in the case of incorporated bodies enemy character attaches only to those incorporated in an enemy country, which differs from the definition in the Bill before us. Apparently the draftsman has departed from the English law as laid down in a decision given in January last, and taken the definition given by the dissentient Judge, Lord Justice Buckley. According to a report of an interpretation case appearing in the Economist of 23rd January last, and covering a good many matters, one answer was given by the Court as to companies. The question was: -
Can a company or corporation, registered in this country, but whose shareholders and directors are chiefly alien enemies resident in the enemy country, sue in these courts to enforce payment of their debts or to enforce other rights, in the same manner as ordinary British subjects can?
The answer, in effect, was -
This is a difficult question, and the Court were not unanimous. The majority decided that as a company or corporation has a legal existence apart from its shareholders or corporators, if it carries on business from a registered address here and is nominally British it is not an alien enemy. Once a corporation has been created in accordance with the requirements of British law, it is British. It was contended that to pay debts to such a company, if it consisted chiefly of alien enemy shareholders, would be to pay money for the benefit of an enemy, because the shareholders could make use of the credit thus obtained. The Court decided that this was too farfetched an argument, and as the proclamations and Acts forbidding trade with the enemy did not recognise such a company as an enemy, it must be considered according to common law a British company. Lord Justice Buckley dissented, being of opinion that such a company was so impressed with the alien enemy’s stamp that the Court ought to look behind the abstract legal person of the company to see who composed it, and that the test was not, “ What is the company?” but “ Of whom does it consist?”
It is the test considered necessary by the dissentient Judge that we are applying; to our special legislation. Now, in order to show what the position is, let me refer to the interpretation of these Acts published some months ago by the Imperial Government for the guidance of traders, and touching on the question of contracts. On the 22nd August last the Imperial Government officially made the following announcement through the Treasury for the guidance of the public: -
Forthe 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.
Consequently, there is, as a rule, no objection to British firms trading with German or Austrian firms established in neutral or British territory.
Of course that is subject to the qualification that it must not be a blind to communication with the enemy.
What is prohibited is trade withany firms established in hostile territory.
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 bonâ fide with the branch, and no transaction with the head office is involved.
Commercial contracts entered into before war broke out with firms established in hostile territory cannot bo performed during the war, and payments under them ought not to be made to such firms during the war. Where, however, nothing remainsto be done save to pay for goods already delivered or for services already rendered, there is no objection to making the payments. Whether contracts entered into before the war are suspended or terminated is a question of law which may depend on circumstances, and in cases of doubt British firms must consult their own legal advisers.
– That bears out the point that there is a great state of uncertainty. No one knows whether he is bound or free.
– I acknowledge that there may bo grounds for interference in regard to some contracts, but I am pointing out the interpretation of these Acts, and showing that the Bill before us is unnecessary in some respects, because the common law, as well as our Statutes, deals with it, as indicated by this quotation alone, apart from whatI have previously said. The common law at Home and the Statutes go to nothing like the extent we are attempting to go here. What is the law ? I shall endeavour to sum it up in some propositions based on an article dealing with the subject of Enemy Contracts, and written by Leslie Scott in the Law Quarterly Review for January of last year.
The effect of an outbreak of war on the power of the citizens of belligerent States to trade with one another depends on the municipal law of their respective States.
In some cases it depends upon a Statute; in others purely on the common law.
In England the common law and Statutes both deal with the matter.
The general rule of English law is that all contracts entered into during a war between British citizens and the citizens of a State which is at war with Great Britain are illegal and can never be enforced.
Therefore the provisions of the Bill on that point are really unnecessary.
– But all these contracts were entered into prior to the war.
– I am dealing with each part of the Bill separately, and these statements cover all parts of the Bill, and may be useful for reference -
The rules apply to all contracts and not only those in the nature of a trading venture. Contracts made in furtherance of illegal trading, even though not made directly between the citizens of two belligerent States, are illegal and void. The rules that contracts made with belligerents are illegal and void applies to contracts made by citizens of allied States.
These rules, of course, do not apply where licences to trade have been granted -
Contracts entered into by the citizens of one belligerent State with citizens of another belligerent State before the outbreak of hostilities between their respective States are not made illegal by the outbreak of war, but rights arising under them, and the right of suit to enforce these rights, are suspended until the war is over.
On that point the case of Janson v. The Driefontein Consolidated Mining Company Limited, in which the question of contracts entered into during the war period was introduced, may be referred to. The report states -
The remedy is indeed suspended. Analien enemy cannot sue in the courts of either country while the war lasts, but the rights on the contract are unaffected, and when the war is over the remedy in the courts of either is restored.
The exceptions are where the contracts come to an enemy’s aid and involve dealings with him and contracts that, from their character, are incapable of suspension. Such, for instance, as a partnership, which would involve continued dealings. These would generally violate the common law as well as the Statute. I would like to give one more quotation from Professor Morgan on this question of pre-war contracts, because it suggests what I have mentioned - that it is probable that there is nothing to prevent the parties to these contracts here having outside dealings or disregarding any provisions that might prevent them, during the war period, from selling or exporting to companies or persons other than the parties to the contract. In other words, the provisions with regard to exclusive dealings will be regarded as nugatory during the war. I think, of course, we must help to remove any doubts there may be in the law, and the reason I say that I believe that these contracts are no longer binding during the war, and that no action can be taken in respect to them after the war, is that to impose limits on production here would be against the principle on which trading with the enemy is prevented. It would be really strengthening the enemy by weakening ourselves, and no contract that would weaken our position could be binding for the same reason that trading with the enemy is prohibited. In his book, War; its Conduct and Legal Results, Professor Morgan states -
If a contract has been made prior to the outbreak of war the hostile alien is none the less an alien and unable to sue. The remedy is therefore suspended in principal until he can do so. If a contract has been completely performed, or if a quantum meruit is due upon it, there is no difficulty about this except for a doubt as to whether the Statute of Limitations runs against the hostile creditor. But in other cases where there still remains something more complicated than payment to be done under the contract, it would be going too far to assert broadly that all further extension is suspended. All performance which involves “ intercourse with enemy territory certainly is so, and since it would usually be unfair to postpone performance indefinitely, such contracts are necessarily cancelled. But there seems to be no reason to suppose that in other cases the outbreak of war of itself interposes an absolute release. In the great majority it does, but for a further reason. In that majority of cases, performance is not only suspended, but the contract is again cancelled.
These cases include -
those in which the continued existence of the contract is against public policy, e.g., the insurance of enemy ships; and
those in which performance cannot be suspended without unfairness or inconsistency with the terms of the contract express or implied (including practically all trading contracts).
As a matter of fact, there are very few contracts of an executory character released, which would not be affected so far as covenants such as those with the Metal Company are concerned, by the actual breaking out of war. So much then for the authorities. I may now refer to an article in the January number of the Law Quarterly Review by one of the authors of the book from which I have just quoted, in which, dealing with the question of the fulfilment of contracts and the right to sue in the case of suspended contracts revived on the declaration of peace, it is stated -
It is otherwise when the contract requires continual fulfilment. Equity then dictates that it be dissolved by the outbreak of war.
Dealing now with the Bill itself, I think I have endeavoured to show that it goes beyond what is necessary, because, in the first place, the common law now covers many of the matters dealt with in its clauses; and, in the second place, because its definitions are so wide that, in many cases, it must hit Imperial trading interests as well as our own local trading interests very severely. Let us look, for instance, at clause 3. Here it is declared that an enemy contract means any contract to which an enemy subject is a party. It does not imply that the only contracting party on one side must be an enemy subject. It may refer to one of perhaps a dozen parties on one side who is an enemy subject, and according to this clause that would be sufficient to invalidate the whole contract. That seems to be the clear effect of this particular clause. I emphasize that it does not mean necessarily that a contract should be between two persons, one of whom is an enemy person. It means that if a most diluted interest exists either by the fact’ that an enemy subject isa party by signature, or by having an interest in the contract, the contract is annulled.
– If there were a number of German shareholders in a company, is it the intention of the House that this Bill should invalidate any contract made by that company?
Several Honorable Members. - No, No!
– The question is a very pertinent one in its relation to companies, and I am inclined to think that the honorable member for Parkes is quite right. Clause 3 of the Bill declares that an enemy contract means any contractwhich an enemy subject is a party to, or in which an enemy subject has an interest. That, apparently, may include a company in which an enemy subject has an interest, as referred to by the honorable member for Parkes. So that it is not merely necessary to be a party, or one of several parties on one side. The mere fact that a person has any interest at all, in the opinion of the Attorney-General - because he has to decide a point to which I will referlater on - makes the contract an enemy contract. Clause 3 also provides that an enemy contract may mean “ any contract which is, or is likely to be, for the benefit of enemy subjects or of enemy trade.” It is clear, then, that the matter may require very close investigation. I will now deal with the administration of the Act. The Bill provides, in effect, that an application may be made to the Attorney-General for a declaration that a contract is or is not an enemy contract within the meaning of the section, and under the Bill it is for the AttorneyGeneral himself to decide. Is it right or expedient to leave the decision in such a complex matter as this to the unchallengeable judgment, the decision beyond appeal, of the Attorney-General ?
– That is already done in the Trust Act in almost equally difficult questions.
– I beg thehonorable member’s pardon ; but does the honorable member for Kooyong say that he is prepared to vest this power in the AttorneyGeneral ?
– I am not saying that.
– Then the interjection is irrelevant, if it does not qualify what I am stating; but may I point out, as regards the Trust Act, that the Courts have to decide ? The Attorney-General issues a fiat after the examination of certain submitted contracts. Prosecutions under that Act have to be sanctioned by the certificate of the Attorney-General. But here the whole matter, without appeal, rests with the Attorney-General. Take, for instance, the Snow case. I do not want to pre-judge it in any way, but it has been going on for a long time, and it must, therefore, have involved very close inquiry as to whether the facts justify the declaration that the parties concerned are enemy subjects, or that there has been trading with the enemy. What would be the position if the Attorney-General himself had to decide the merits of this case? The whole of the relevant facts would have to be brought before him. There might not be one-fifth of the facts that have been brought before the Court, but still even such an inquiry would take up a very large proportion of the AttorneyGeneral’s time. Apart altogether from the wisdom of making the AttorneyGeneral a judge in these matters- I say this without any personal reference - the proceeding is open to objection from many points of view-
– Should it not be referred to the Courts?
– I think it should be; but I will deal with that later on. I will now refer to the sub-clauses themselves. These declare, as the common law at present provides, that contracts made during the war are void. Contracts made during the war are invalid and void, but the Bill declares that every enemy contract made before the commencement of the war is to be and to have been null and void as from the commencement of the war, as regards rights and obligations under it, except in relation to goods which have been already delivered, or acts which have been already performed. Why should we depart from the existing law and the existing, practice and policy of the United Kingdom, which is faxmore concerned than we are? Could we not pass a provision covering such cases as it may be necessary to cover to- remove doubt? Why should we declare contracts covering all the contractual relations affecting our external trade, and entered into before the war, to be actually void if in the opinion of the Attorney-General they are enemy contracts? That is going too far. Clause 4 is not directed expressly against enemy contracts, although it may include them; it deals with any contract. Either party to a contract to which it applies may by notice in writing to the other party terminate the contract as regards all rights and obligations relating to any future supply or delivery under the contract. The clause declares that a contract to which it applies is a contract for the sale and delivery of goods, the performance of which is by operation of law or by the terms of the contract suspended during or on account of the present war. We have already declared in sub-clause 5 of clause 3 that all such contracts are void as from the commencement of the war. Therefore, clause 4 seems to be nugatory.
– Should not clause 4 contain the words “to. which the preceding section applies “ ?
– The honorable member has anticipated me. I was going to suggest that the clause should be made auxiliary to clause 3. There may be something to be said for it, and I am not going to suggest amendments, but I think that the Bill should be drafted to deal only with contracts in regard to which people are in doubt as to what their position will be after the war is over. This Parliament has not power to pass a measure which will cover the whole field. The greater part of the field is probably within the jurisdiction of the States, and the Attorney-General has told us that he is asking the States to pass legislation to help us in the matter. All contracts are not of Federal concern. A doubt has been thrown on some of the provisions of our Patent Acts, which give power to suspend or abrogate contracts, as not being matters of patent law. Certain contracts are within our jurisdiction: contracts relating to defence or to our specific powers, and a great many contracts relating to foreign, or, subject to section 92’ of the Constitution, to Inter-State trade. But in this instance it is desired to cover a field of jurisdiction of which a great part is under the control of the States, and with which we therefore can. deal only in concert with the States. I think that the Bill should be confined to enemy contracts made before the war, the suspension of which affects production or export, that is, unduly ties the hands of contractors here who may be in doubt as to their position. The provisions of clause 2 and sub-clause 1 of clause 3 go far beyond what is necessary, and should be redrafted. An application might be made to a Judge or to a Judge in chambers. The question arises whether we should not give to the agents of parties who are affected by the contracts the right to appear and to put their case. It has been decided by the British Courts that when the interest of an enemy subject is affected by an action, he has a right to defend it, a right to be heard. It is open to question that we should allow enemy contracts covering very wide areas to be annulled by the Court or by the Attorney-General without giving the parties other than the applicants the right to be heard; but the effect of the definition of such contracts as enemy contracts would be their annulment. Clause 4 should be altered to make it mainly, or more clearly if so intended, auxiliary to clause 3. I urge, too, that we should wait in this matter for the advice of the Imperial Government. We were told last night that the provisions of the measure had been telegraphed to England; but, in view of the fact that Mr. Harcourt appears to disapprove of such legislation, and two months ago declined to give assistance by means of Imperial legislation, it behoves us, considering the tremendous Imperial interests involved, to await the opinion of the Imperial Government regarding the measure.
– It seems to me that people here, many thousands of miles away from the seat of war, have nearly gone mad about chasing the enemies of the country. I have read the Bill with fear and trembling. After careful study, it appears that if your wife has an uncle who is the grandson of a German born before the Flood, you are trading with the enemy. Every man who wants to be fair and square with the world, and to do justice to all, gets to be thought disloyal when struggles like the present are taking place. Even though the Attorney-General is a Labour man, I cannot regard him as an Egyptian emperor.
– The Bill does not deal with marriage contracts.
– Pretty nearly. It deals with matters in which you can get’ yourself fastened up before you know it. I was very pleased to hear the speech of the honorable member for Angas. To every question that he touches in this House, he lends a spiritual and moral dignity that exalts it. I have not been well of late, and feel hardly able to tackle such a mighty question as this, but I take the opportunity to make my protest against what is proposed. It seems to me that the Attorney-General has become so saturated with feeling against Germany and the Germans that when he takes a pinch of snuff in Melbourne the Emperor of Germany sneezes in Berlin. Par removed from the field of operations, he is making tremendous efforts to destroy the Germans. On a hundred bloodless fields like this he is trying to win his golden spurs. I wonder if a landlord who has German tenants is to be regarded as trading with the enemy. I suppose that before I know it I. shall be in gaol. Yet we have not heard a word against the capitalists who have nearly destroyed Great Britain. Why is it that Lord Kitchener is not able to send men to the front as rapidly as he ought to? It is not of men, but of ammunition that the Allies are short.’ I have a relative who went from the United States to Canada to enlist, and he writes to say that he has been marching up and down England until he is like a prizefighter, but they have not the ammunition to send him tethe front. Why ?
– Yes; boodle. In days gone by you allowed the capitalists of Great Britain and the capitalists of Prance to organize great trusts for the building of factories in Germany. I propose to prove this statement. Contracts of this kind exist for fifty years, yet not a word has been said in the House of Commons about breaking them. Why have the Allies to depend on Canada and the United States for the supply of ammunition ? Because the banks of the British Empire have lent money, and organizing trusts have spent it in erecting ammunition factories in Germany. Time after time I have told the House that Australian gold was being used to build German Dreadnoughts, but I have been laughed at. I have here a copy of the New York American, of the 17th March last, an American newspaper, neither pro-British nor pro-German, though friendly to us. It has an article headed “ German Trusts turn Allies to United! States powder. Companies in great combination, financed partly by French and British money, now working solely to supply Kaiser’s army.” Why does not the Attorney-General bring in a Bill to get at the Kaiser directly, and not at a few of his subjects who do not know what to do ? I met a German the other day who said, “I come here, and I make a leetle home, and now I amstarving.” We do not wish to persecute the Germans who are here. That policywould be contrary to the history of the British Empire, which for the last 100 years has been civilized, and has been the great teacher and guide of the whole world. This is what the New York American has to say about the German trusts -
British, German, French, and Belgian manufacturers of explosives have formed a gigantic trust which will control the European output of gunpowder and dynamite until 1950.
I now make the suggestion that no private individual ought to be allowed tomanufacture ammunition. If there were not in the world individuals like the Duponts, of America, and the Krupps, of/
Germany, manufacturing ammunition, there would be no necessity for these wars. The wars are created for the purpose of paying dividends to the manufacturers of ammunition. The article continues -
The trust had its inception with the formation in 1880 of the Nobel Dynamite Trust, which expanded until it included among its members some of the largest English, French, and Belgian companies. Last year, when such a war as the present war seemed an impossibility, the German companies were also taken in, and the name of the trust changed to the General Kartel of Powder Companies, with head-quarters in Berlin.
The Germans seem to run the world, and it is no good saying that we can stop trade. Trade flows on like the tide of the ocean, and it cannot be stopped. ‘All we can do is to help our own people by a good Tariff. We have before us the instance of the aniline dyes. Many of the factories in the United Kingdom are being shut up because they are not able to procure the aniline dyes for the dyeing of their fabrics, and yet the Britishers were the inventors of those dyes. If the British Empire and the English speaking people had shown half the skill, genius, and patriotism in building up their country that the Germans have shown in building up Germany, we would not have any of the troubles which confront us today. Let honorable members listen to this -
Enemies on the same board -
Boodle speaks all languages, including Latin, Greek, Sanskrit, and Assyrian. so that to-day, with practically all the countries of Europe at war, and using the powder manufactured by this gigantic trust, Herren R. J. N. Heidemann, G. D. Aufschlager, Louis Hagen, and Max Schinkel, of the Deutsche, Waffen-und-Munitions Fabriken, are members of the same board of directors with Lord Ribbesdale, Sir Ralph Anstruther, Sir Richard Awdry, and other illustrious British capitalists, who are directors of the Nobel Trust, and with Vice-Admiral Hans Sak, a director of the Krupps.
– The Nobel Trust is nota German proposition.
– I know it is not, but all these companies are in the one organization, and the trouble with the Yankees was that the. other nations would not give them a big enough “ cut,” and, in consequence, they stood out, and to-day are saving England. My ideais that it will be better to introduce laws to provide that in future these great organizations shall be in the hands of the State for the benefit of the nation, rather than that we shall shut up some poor German because he happens to come out here and cannot make a living.
– Is it a fact that the Trust went to Germany to manufacture ammunition ?
– I am coming to that -
These splendid factories for the manufacture of explosives at Hamburg, Cologne, Dresden, and Berlin were largely financed in England.
No man is a more patriotic citizen of the British Empire than I am. There are only two nations in the world that allow you to walk on your head when you like. They are the American and the British.
These German plants, which are now working day and night, furnishing material for the German Army and Navy, were built with British capital.
And they are situated within Germany. When the war broke out Lord Kitchener found himself crippled because in all England it was possible to turn out only 7,000 rifles per week.
– Where did you get that information?
– I saw it in an English newspaper.
– Nonsense !
– It is a fact that I saw the information published, although since that date the output of rifles has been increased. Why is it that Kitchener has been constantly asking for more ammunition, and that Sir John French says, “ With ammunition everything is ours “ ? The reason is shown in this newspaper article.
– The English factories ought to work one shift a day like the Commonwealth Small Arms Factory, and then they would have plenty of rifles.
– The Commonwealth factory ought to work three shifts.
– It cannot work three shifts if it has not the material.
– Why have we no reserves of material?
– Because of bad managementin the past.
– The newspaper article continues -
The General Kartel of Powder Companies is now composed of the following : -
The Nobel Dynamite Trust Company Limited, which owns or is interested in Nobel’s Explosive Company Limited (British) ; Birmingham
Metal & Munitions Company Limited (British) ; the Alliance Explosive Company Limited (British) ; Nitrogen Products Limited (British) ; Explosives Loading Company Limited (British); Japanese Explosives Company Limited (British); Dynamit ActienGesellschaft (German); Dresden Dynamite Company (German) ; Deutsch Sprengstoff A. (German) ; Rheinische Dynamit Fabrik (German) ; Sprengstott A. Carbonit (German).
The Rhein-Siegenor group, which comprises Rheinische West falische Sprengstoff A. G. (German) ; Siegener Dynamitfabrik (German) ; Electric Fuse Company, of Cologne (German).
Vereinigte Koehn Bottweiler Pulverfabriken, which is interested in the Chilworth Gunpowder Company Ltd. (British) : Sprengstoff A. G. Flier Russland (German); Spanish Explosives Union (Spanish).
Deutsche Faffen-und-Munitianfabriken, which owns or is interested in the Ludwig Loewe & Co. (German) ; Waffenfabrik Mauser (German) ; Waffenfabrik Martini Kenfelde (German) ; La Fabrique Nationale d’Armes de Guerre (Liege), (Belgian) ; Societa Metallurgica Bresciana (Italian) ; La Fabrication des Rohlements a Billes (French) ; Gehr, Boehler & Co. (Austria) ; Oesterreichische Waffenfabrik (Austria); La Societa de Dynamit (French) ; La Societa Generate pour la Fabrication de Dynamit (French) ; and La Societa de Dynamit (France-Russe).
All of these plants which are on German soil are now making powder exclusively for Germany, though built by English and French money in part. The result is that the Allies, France and England, cannot get enough powder at home, and are now running every open ammunition factory in the United States night and day to catch up with Germany.
– Is it not stated that British companies went to Germany to manufacture ammunition because the wages are cheaper there?
– That was stated in one newspaper, but not in a Hearst newspaper, which is always reliable. What we ought to do now is to be merciful. If we are in a great and powerful position, with, only 30,000 or 40,000 Germans, or people of German descent, in a population of 5,000,000 or 6,000,000, surely we have no cause for fear. As a rule, .Germans are not good shots, speaking from my experience of them in western America.
– They were very good shots in the civil war I
– That is not so, as any history of the war will show us; and we ought to be very careful that we do not now do anything that we shall regret afterwards. Let us be able to look every German in the face and say. “ Well, old man, I treated you like a man.” We are not able, and never will be able, to make laws that will destroy efficiency. If Germany proves to be theefficient industrial producer after the war that she proved herself to be in the past, and we do not wake up and copy her, she will beat us. We cannot be rubber stamps and business men at the same time - we must be one or the other - and I hope that we will not place the proposed enormous power in the hands of the Attorney-General. Let us leave a matter of this kind to a Judge, and I am always ready to trust a British Judge, who ever tries to help the downtrodden.
– This Bill involves a very important principle. International law provides that certain executory contracts, or rights under them, are suspended during war; but the Bill lays down the principle that that rule may be annulled by a Dominion of any one of the countries that may be at war. From that point the question before us is very serious. Internationally speaking, the Empire is the only legal personality that is known; and we are a portion of oneof the large sovereign States or entities known to international law. We are asked by this Bill to claim as a Dominion, or part of the Empire, the right to wass an Act of Parliament which will abrogate a well-known and settled principle of international law. This, of course, is stripping the question of all merit and personal considerations, and strictly stating it as a matter of principle. I am not for a .moment saying that the circumstances are not such as would command sympathy, and probably justify the Ministry in their actions. The whole of the facts are known to the Ministry, and, with the complete knowledge ire their possession, they feel that, under the circumstances, the position, in regard to industries and employment in Australia r is so serious as to justify them- in departing from the well-known principles of international law, and in annulling the contract which has been suspended for the time being. We have the remarkable fact that during the progress of this great war, at least one of our enemies has practically abrogated all therules of international law, where these rules have conflicted with his personal interests. Some of those rules wereframed in councils of nations meeting together at The Hague Convention, for” the special purpose of placing a ‘more humanitarian aspect on the cruel operations of war. At the same time, although one of the enemy may be violating the rules of international law, the British Government have never taken up the attitude that this relieved Great Britain from the obligations imposed by the wellknown principles of that international law.
– Did the honorable member see that Mr. Bonar Law has said that the treatment of British prisoners in Germany would justify the expropriation of all German property in Britain?
– I saw that statement; but the British Government have, so far, not felt it necessary to act on the suggestion. Although the British Government may have had to strain its action in various regards, the general attitude of the British nation, even in the face of violations by the enemy, has been to preserve, as far as possible, the high standard previously observed.
– Hear, hear!
– I am sure that that is also the attitude of the Commonwealth Government.
– Undoubtedly ; I have said so over and over again.
– And I think it is the attitude of the Australian people. After all, war is only an incident in the development of international relationships, taking the history of the world as a whole. More and more the general tendency of nations has been to lay down rules and principles for their guidance in such relationships; and though those rules, in the absence of sanction and power to enforce them, are not, strictly speaking, rules of law, the influence of The Hague Convention, and of treaties, and alliances has given them an honorable force almost equal to legality.
– The honorable member would not suggest that, under any law, municipal or international, one party is bound and another free?
– I would not.
– But is that not the position now ?
– Allow me first to deal with general principles. We are now asked to annul one of those principles of international law, on the ground, as implied in the Minister’s statement, that the suspension of contracts ishaving a most serious effect on production, industries, and employment in Australia. Further, the honorable gentleman told us, by implication, that the Imperial authorities are being consulted and notified of our proposed action, and are practically acquiescing. It would appear, therefore, that from an Imperial stand-point this measure is not likely to lead to serious complications. If any action of ours did involve the Empire in serious complications, we should have to give way to Imperial considerations. But the mere fact that no protest has been made implies that our action is not likely to embarrass the Imperial authorities either now or after the war has closed. The self-governing Dominions cannot each go its own way and take conflicting action in respect of enemies of the Empire. As an integral part of the Empire our action should be uniform with that of all other portions of it. In War and Alien Enemies, Mr. Arthur Page lays down the law asit affects personal and trading rights. He says -
The effect of the outbreak of War upon contracts made with alien enemies may be summed up thus : -
Contracts made during the war without a licence are rendered void.
Contracts made and executed before the commencement of war, if lawful per se, are suspended during the war.
The rights and remedies thereunder revive after the war is over (subject to the statute of limitations).
Contracts made before the war, but wholly or partly executory at the outbreak of hostilities, are void either (1) if made for an illegal purpose, as in the case of an insurance of an enemy’s goods or vessels against capture by British warships (although, if there is a general clause insuring against capture, that clause will be construed as not covering capture by a British or probably an Allied warship, and may otherwise be valid) ; or (2) if the contract is indivisible, and might fail in its ‘purpose, if performance were to be suspended during the war.
On the other hand, an executory contract, otherwise lawful, will be suspended and not rendered void by the outbreak of war, if its object can reasonably be effected by performance after the war, while, if such acontract be severable, it will be void as to such parts only as are to be performed during the war, and its operation will otherwise be suspended.
This Bill seeks to endow the Commonwealth with power to annulthose contracts which are mentioned in the last paragraph I have quoted, as being suspended during the war. Trotter, in his Lawof
Contracts during War, gives a short summary, in which he says: -
IF the American authorities are taken into account, a more correct statement of the law would be the following : -
An executory contract concluded with an alien enemy before the outbreak of war is merely suspended during the war as regards the right to performance and the right of action. (Janson v. Driefontein Consolidated Hines Ltd., 1902, A.C. 484.) But such a contract is either avoided or dissolved by the outbreak of war (1) if it ensures to the aid of the enemy (Furtado v. Rogers, 1802, 3 Bos., and P. 191) ; or (2) if it is in its nature incapable of suspension (Griswold v. Waddington, 1818, 16 Johnson, 438, an American case). A contract will in its nature be incapable of suspension (n) if its proper performance necessitates intercourse with” the enemy during the war (Esposito v. Howden, 1857, 7 E. & B. 763; The “ William <6 Bagaley,” 5 Wall, 377, 407, an American case) ; or (f>) where time is of the essence of the contract <New York Life Insurance Co. v. Statham, 1876, 93 United States Reports, Supreme Court, 24A ; or (c) where the parties cannot, on conclusion of peace, be made equal, for the doctrine of revival of contracts suspended by war is based on considerations of equity and justice.
– Does that apply to private contracts ?
– Yes, to all private contracts. That is a general statement of th« law as laid down by these authors. The Bill now before us is, in its scope, exceedingly wide. As a Commonwealth we are purporting to exercise our legislative powers, and consequently the first question which we must ask ourselves is, “ What are the powers that we profess to exercise in connexion with this Bill ?” I presume that the Attorney-General has considered the fact that under section 51 of our Constitution we may enact laws dealing with trade and commerce between the different States, with external affairs, and also with defence. But in this measure we purport to take to ourselves power to annul contracts which fall into four classes. There are four classes of contracts which the Bill purports to affect, looking at it from the point of view of the parties to a contract. First, it professes to deal with all contracts made between Australian subjects and alien enemies or foreigners generally - that is to say, with people outside British Dominions. Secondly, it seeks to deal with contracts made with Australians and people residing in the British Empirechiefly in the United Kingdom, I suppose. Thirdly, it purports to affect con tracts made between persons and companies residing in the different States - that is to say, Inter-State contracts. And finally it seeks to deal with contracts made between persons or companies within a State. Now it seems to me clear that in regard to contracts falling into the first three of these classes the Commonwealth has jurisdiction. In regard to contracts in the fourth class it is possible that the position may be covered by some power of defence or some reserve power relating to the preservation of the nation in time of war. But, on the face of it, it seems to me that the Attorney-General will be well advised if he limits the ap.plication of the Bill to those matters which clearly fall within our legislative powers, especially as he proposes to ask the States to rely on the powers which they possess in dealing with contracts made within the States in the same way as it is proposed in this measure to deal with other contracts.
– The States have promised to do that.
– That being so, in order to put the validity of the measure beyond the possibility of dispute, it might be well for us to do what was done in the Seamen’s Compensation Act of 1911. It will be recollected that the Seamen’s Compensation Act of 1910 was adjudged to be invalid, and that a validating measure had to be passed the following year.
– I hardly think that the same conditions apply in this case. Ought we to admit that we have not the power which we seek to exercise when there is a reasonable doubt upon the question?
– We would not be admitting that we have not the requisite power. All that we would be saying would be that we know we have certain powers, and that we intend to exercise them. We must recollect that when we are fighting with alien enemies they are not likely to spare us in litigation as to contracts. The question of contracts entered into by Broken Hill companies is very clearly and ably dealt with by a writer in the Argus, under the nom de plume of “ Lex,” on 27th April last. It appears that one of these contracts has already been before the Court for its consideration. Consequently the matter is nbw public property, so that we can with perfect propriety discuss it here. In the article in question the writer says: -
In the case of the Broken Hill ore contracts, the English Court was asked to say whether or not the companies and the German firm had, in terms, agreed to a suspension in the event of war. . . . Seeing, therefore, that many Anglo-German contracts, now temporarily suspended, may revive with the declaration of peace, it is natural that Mr. Lewis Harcourt should hesitate to break away from the recognised international standards governing the existing reciprocal engagements between our own and the enemy country.
In that case the particular provision which was before the Court for its consideration was clearly set out.
The main contract covered the supply of concentrates for a long period, and by clause 17 provided that “ in the event of any strike, look-out, combination of workmen, interference of trade unions, suspension of labour, whether partial, local, or general, and from whatsoever cause arising, floods, storms, lire, stoppage of water supply, washaways of railways, accidents of God, force majeure, or perils of the sea, breakdown of machinery, or inability of the Silverton Tramway Company to provide the necessary trucks for carrying away the concentrates, or in the event of any cause beyond the control of either the sellers or the buyers preventing or delaying the carrying out of the agreement, then this agreement shall be suspended during the continuance of any and every such disability.
The matter was brought before the primary Judge by way of a friendly action in which the Court was asked to decide whether the risk of war was included in these contingencies.
– Does suspension in this case mean suspension of duration or operation ?
– Neither deliveries are made nor can action be taken for nondelivery during the war; but at its termination a resumption of the terms of the contract is expected. That was the determination of the primary Judge. This report continues -
He therefore decided that the contracts were merely in suspense until the restoration of peace) which meant, necessarily, that the Broken Hill companies could riot, during hos.tilities. enter into any fresh engagements of a permanent kind for the disposal of their concentrates, but must hold their hands, recollecting their liabilities to resume supplies at a later date. His Lordship accordingly granted an injunction restraining the defendant directors from acting on the assumption that the contracts had been terminated by the war.
The question of whether that interpretation of the law was correct was sent on to’” the Court of Appeal.
– Was the determination of the question governed by the fact that this was a contract entered into with an enemy subject?
– The point at issue was whether the contract was suspended by virtue of the war. The Court held that the risk of war was covered, and that the contract was, therefore, suspended pending the duration of the war.
– The parties to the contract on one side being enemy subjects?
– This report does not show who were the parties to the contracts, but we know that they were between the companies and Aaron Hirsch. I am dealing now with the principle involved. As the Attorney-General hat pointed out, these companies were placed in a very awkward position, since at the close of the war they would be called upon to make large deliveries in accordance with the terms of the contracts.
– Some of them have been already informed of the intention of the other parties to demand the resumption of deliveries at the end of the war.
– Quite so. This interpretation of the law, if correct, would have a very serious and paralyzing effect upon the industries concerned. The policy which the Government have had to determine, and with which they now ask us to deal, is whether the seriousposition in which the industry in Australia finds itself is sufficient to justify us i3 abrogating the well-known principle of international law in regard to the suspension of contracts.
– Another question is whether it would pay us to do so.
– That is one consideration. We have to ask ourselves what, from the point of “view of the Empire as a. whole, would he the effect of our annulling these contracts. If we take such a step will the German and Austrian Governments take retaliatory measures ? Bv annulling these contracts may we incite them to take similar action with respect to German and Austrian contracts with persons and companies throughout thi British Empire.
– What about the position taken up by the British Government ii regard to the production of aniline dyes’ Will not that lead to retaliation?
– I am dealing with th( point raised by the Leader of the Oppostion, and which must not be lost sight of
The question has been before the Imperial authorities, and one is led to believe that they are acquiescing in what is proposed to be done here. I gather from the attitude of the Imperial authorities that they do not regard our contemplated action as likely to lead the Empire into serious complications.
– Does not the honorable member think we ought to have some effective legislation to prevent future contracts being entered into covering such a long period as do these particular contracts ?
– That is quite another matter. Those who are engaged in large industries in which much capital is invested, and which give employment to a great many men, like to be assured of a continuity of operations, and consequently wish to secure a market for many year3 ahead. Without such an assurance large sums of money would not be invested in such enterprises. The Broken Hill Proprietary Company, I think, was perfectly justified in looking ahead and making a contract covering an extended period.
– Where such contracts are entered into the Government should know of them either by means of our company law or in some other way.
– It is for the shareholders of these companies to manage their own business. If we are to inquire into every contract entered into in all branches of industry throughout Australia we shall undertake a big responsibility.
– Big as it is, I think we shall attempt it.
– That consideration does not now arise.
– Does the honorable mem. ber think there could be any retaliation by Germany, seeing that she is so largely dependent on us for a supply of this particular raw material ?
– But there are contracts with German firms other than those relating to the supply of metal. I am dealing now with the principle involved rather than with the particular products.
Sitting suspended from. 1 to 2.15 p.m.
– We presume that the Government have a knowledge of the whole of the facts and circumstances, as no one on this side has been approached with regard to them, and that they feel it absolutely essential to take this action, which on the face of it is certainly not normal. The very question that we are discussing waa raised in November in the House of Commons by a motion moved by Mr. Morton for«a new clause in these terms - I am quoting from Hansard, 25th November, . 1914, column 1232-
Determination of Contracts. - Any contract which has been entered into by any British person, firm, company, or corporation with an enemy may be determined or suspended by a written order by a Secretary of State or the Board of Trade, which order a Secretary of State or the Board of Trade are hereby empowered to make, so far as any act, thing, or obligation remains to be done or performed under such contract, and any contract for the supply of goods imported from any State for the time being at war with His Majesty, or for goods which are manufactured or partly manufactured in any such State, may also be determined or suspended in like manner : Provided that such determination or suspension under this section shall not determine or suspend any act or thing which has been performed or done under such contract prior to the passing of this Act.
Mr. Morton explained that they wanted to get rid of the difficulty in dealing with running contracts made over a series of years, and in his speech said -
According to my information, which is only second-hand, they have passed the necessary Proclamation or Act, the equivalent to which 1 have embodied in a clause I lower on the Paper, giving to every German subject the option or saying whether such contract should be cancelled or postponed until after the war without prejudice to the British subject’s right to recover damages for non-fulfillment or delay.
Thus, although there is a right in Germany to determine the contract, there seems to be some sort’ of remedy left to the contracting party. That amendment, which is in terms similar to one of the provisions of this Bill, was opposed by the Attorney-General in the House ‘ of Commons and withdrawn. That Minister, as reported in column 1238, said-
I confess for my part I should conceive there was a rooted objection to enacting that settled contracts made between, two parties should, in case of the outbreak of war, be voidable at the option of one of the parties. That would be reducing the commercial law of this country to the level of the most disreputable republic in South America.
It does not follow that those remarks can be applied to the whole of this Bill. They apply only to the principle of allowing a contract to be determined at the option of one party. ‘Clause 4 of this Bill might be modified to meet that criticism in some way, but I am not adopting the criticism as against the principle of the measure.
– I do not think the AttorneyGeneral of the British Government would say that our Bill savoured of the tactics of a disreputable South American republic.
– I do not say he would, but possibly clause 4 may be amended in such a way that no such criticism could apply to it.
– I do not admit any similarity between the section he was looking at and ours. There are two fundamental distinctions. Ours applies to contracts actually suspended by the war, and Mr. Morton’s to contracts generally. Ours applies to contracts other than those with the alien enemy, because those are dealt with in clause 3.
– Your clause is wider than his.
– It applies to contracts already suspended by the war.
– That clause applies to contracts entered into with an enemy. The clause before us applies to those entered into between British subjects. The Attorney-General of England referred to the possibility of further inquiries being made, and it is quite possible that since then the Board of Trade have made inquiries, and the British Government may have to come to the view that such action as we are taking here is justifiable. In conclusion, I wish to draw the attention of the Attorney-General to one defect. Clause 3 deals with executory contracts which are suspended, not with goods which have been delivered, or acts which have been performed, and are not covered by this measure, but with contracts which are to continue and be fulfilled in the future, and if a person applies to the Attorney-General to declare that any contract is an enemy contract, the Attorney-General may make the declaration. If a contract is one “ to which an enemy subject is a party, or in which an enemy subject has an interest, or which is or is likely to be for the benefit of enemy subjects, or of enemy trade,” it is an enemy contract.
-The annulment of the contract is not necessarily dependent on the statement of the Attorney-General ; it is void without that declaration.
– But the AttorneyGeneral must declare it to be so. That is provided in sub-clause 3, which says -
If the Attorney-General declares that the contract is an enemy contract, then, upon the publication of his declaration in the Gazette, the contract shall be deemed to be an enemy contract.
And as every enemy contract is declared to be null and void, on the Minister’s declaration that a contract is an enemy contract, it becomes null and void. I admit that sub-clause 5 gives a general nullification of contracts, but when a party asks for a declaration under sub-clause 2, the Attorney-General must give a decision, if applied to.
– The Attorney-General is only made interpreter of contracts in cases of doubt.
– Only contracts which are in doubt will be declared void, because no one will bother the AttorneyGeneral about those which the statute shows are null and void; but it is in regard to those which are in doubt that argument should be heard. A settled principle of British law is that no person shall be condemned unheard, and we should even apply that principle to an enemy subject, seeing that the British law is no respecter of persons. But this Bill does not constitute the AttorneyGeneral in these matters a Court with power to call witnesses, and swear them on oath, and conduct proceedings as a Court would. An application may be heard before him in camera in. his own chambers without reporters, or any person present other than those who make the application. One of these contracts came before a Court of primary jurisdiction in Great Britain for the purpose of getting an interpretation. It went from the single Judge in the first instance to the Court of Appeal, and the latter itself took the point that no order could properly be made in the action because the interests of German buyers were vitally affected, and they were not joined as defendants in the proceedings. This decision seemed rather extraordinary at the time, because there was doubt as to whether the defendants could be served, but no importance attaches to that point now, because it appears that the matter has been raised, and it has been shown in England that an enemy defendant can be served, not necessarily in person, but by the plaintiff taking reasonable steps to notify him that the case is to be heard.
If a man desires to get a contract interpreted in England the Court will now entertain the application, even though an enemy be made party to the action, if the plaintiff can show that he has applied for substituted service of some kind ; that is to say, if, instead of serving the notice on the defendant in Germany, he has served it on the defendant’s agent in London, or on some person in a neutral country, who could communicate to the defendant the fact that the action would come on. The Attorney-General will be following the lines of British justice if he makes provision, so that before taking the action of declaring a contract null and void he enables the other party to the action to be heard.
– In a very large number of cases these contracts are not legal, being contracts with an alien enemy.
– That is a question of fact which the Attorney-General may have to decide. A contract to which an enemy subject is a party is null and void, but the other party may say that he is not an enemy subject. The Bill should provide some method bywhich that man may be served with notice, and have an opportunity to appear before the AttorneyGeneral, and argue his status before the Attorney-General makes a declaration.
– In nine cases out of ten where that class of person is a British subject he is such for convenience, or for better effecting the German purpose. He takes on British nationality as a cloak.
– I am not justifying such a person. A man who takes on the British nationality as a cloak for such a purpose should be exposed; but at the same time I think that the clause should provide that such a man should not be condemned unheard. At least his contract should not be condemned without his being heard on the point as to whether he is an enemy subject or not.
– Will not his point of view be set out, so far as the contract is concerned, in the terms of the contract?
– The contract tells what the terms are, namely, that “in consideration of the payment of soandso I agree to sell you so-and-so.” But the Bill before us declares contracts void, not on their terms, but on the question of the nationality of the parties to them, and I claim that where a contract is to be declared void on the ground that a party to it is an enemy subject, the latter should be served with notice, and have the opportunity of being heard before the declaration is made. I ask the Attorney-General to keep this matter in view in the Committee stage. Let us see what are those contracts which may be avoided. One is a contract to which enemy subjects were a party. It might be a most innocent contract, for while an enemy subject is living in Australia another person may make contracts with him. There would be nothing illegal in doing that. For instance, a landlord could make a contract with a tenant for a house; a grocer could agree to supply provisions to an enemy subject resident in Australia. The terms are exceedingly wide; but, possibly, domicile would be the test of “ enemy subject.” No matter how small might be the interest in a contract, if it is likely to benefit an enemy subject, it is to be absolutely annulled. I think the Attorney-General might look into this? matter more closely. If it turns out that there is a substantial contract between an Australian company and a German company, the suspension of which would lead to serious effects upon our industries and our production, there would be justification for what the Attorney- General is contending; but I think the clause ought to be more closely looked into, and the Bill confined to the substantial injuries which are being alleged. Clause 4 will undoubtedly want amending to show its relation to the preceding parts of the Bill. It seems to me, on the face of it, almost to merit the sweeping condemnation of the English Attorney- General. It states : -
A contract to which this section applies is any contract for the sale or delivery of goods the performance of which -
– It deals with all contracts suspended by the war. If they are not suspended by the war, and to that extent and for that reason are not suspended, the clause does not apply.
– Clause 4 itself includes contracts made with enemy subjects.
– No; it dealswith contracts suspended by the war.
– All contracts that are suspended by international law are contracts which are still continuing, and which are to be performed in the future, such as, for instance, the delivery of metals.
– I do not say that such contracts are wholly broken.
– As a matter of law, we know that contracts for future deliveries are contracts which may be suspended, and I refer the Attorney-General to Page on War and Alien Enemies, page 41 -
In the event of war breaking out while part delivery only had been made, the contract would become wholly void. On the other hand, a contract for the sale of goods, e.g., milk, to be delivered in reasonable consignments, say over a period of three years at seller’s option, will be void in the event of war during the period only to the extent of the consignments, the delivery of which might reasonablybe expected during the war and suspended as to the other consignments at any rate for the time being and until it was manifest that reasonable performance of the contract could only be made during the war.
The Attorney-General will admit surely that the effect of the declaration of war on some contracts which are to be executed is to suspend them.
– He will admit also that this Bill is to deal with those suspended contracts.
– Yes; clause 4 does.
– All the contracts that are likely to be suspended under clause 4 deal with goods for which there is an agreement to deliver at a future time extending over a number of years.
– It might be so, but most of those contracts are covered by clause 3. Now we are dealing with clause 4. The honorable member is confusing that with contracts under another clause.
– No; I was drawing attention to the difference in procedure under clause 3. In that clause contracts may be avoided upon application being made to the Attorney-General.
– Yes; because they are of an enemy nature.
– As regards clause 4, there is different procedure entirely.
– Because they are different classes of contracts.
– Under sub-clausea a contract may be suspended by operation of law or by the terms of the contract; under sub-clause b itmay be suspended by notice of a party; and under sub-clause c it may be suspended by the party against whom the notice is given.
– Yes; you will see it is the other party who has to claim that.
-Yes; I find that is so. The Attorney-General is right. The notice under sub-clause c is to terminate, on the ground that the person served has claimed suspension of the contract. Considering that the parties may be outside Australia, what provision is there for properly safeguarding the interests of persons affected? It seems tome that the section is defective in that respect. The terms are very vague, and I hope the Attorney-General will look into it with a view of giving some opportunity to these people to safeguard their interests.
An Honorable Member. - Clause 4 will be subject to the Attorney-General’s decision.
– No; the AttorneyGeneral has nothing to do with that.
– The suggestion was made by the honorable member for Angas.
– I take it that that section will have to be interpreted by an action at law; the questions would be raised, and the whole question would be determined in Court. But, of course, some of these questions could only arise after the close of the war, and I recognise that the Bill is intended to give protection during the actual period of the war. In the circumstances, I hope that the AttorneyGeneral will look carefully into the points that have been raised, and see if the Bill cannot he made to conform in every respect to the ordinary procedure under the tribunals that regulate the country.
– I am very desirous of doing so.
– Also, the matter should not be left in the hands of the Attorney- General. If our friends opposite had been on this side, and we had put a clause like this into any Bill, they would have declared the clause to be a very dangerous one, and have commented upon the opportunity it would have given for the deciding of questions in the Minister’s room.
– I have no objection to strike out that sub-clause, and leave the whole thing to be otherwise dealt with.
– I think the honorable member would be wise in taking that course instead of having to decide the matter himself. I know that the AttorneyGeneral’s hands are generally full, and they must be particularly so during times of war.
– That was put in to obviate the. necessity of every man having to go to law in regard to this matter.
– I think the AttorneyGeneral could get a judicial officer to act under this proposal. This would save him a lot of trouble, and I think he would find the proceeding more satisfactory. The advantage of having a judicial officer would be that he would exercise judicial discrimination, and his judgment would become a sort of standard by which other contracts could be measured.
– It seems that with the whole series of Bills we have -had before us the Attorney-General will be a very busy man.
– He is going to govern Australia.
– I have nothing further to add, but I hope that this criticism - which the Attorney-General will understand has been directed not in any hostile spirit, or in a spirit that is intended to embarrass him - will assist him in giving a fair deal to all parties concerned.
.- We have heard a number of speeches from the members of the legal profession in regard to this Bill, and I think the AttorneyGeneral is to be congratulated upon the speech he made last -night. As a nonlegal member of this House, I was deeply impressed with the position he put before us. I think, in fact, that all members who have had this matter under consideration more or less ever since the outbreak of the war must have realized that some of our industries are now in a very parlous condition, owing to the fact that Germany has for a number of years been largely dealing with our products, which we have exported to her in their raw form. I have a great deal of sympathy with what the Bill proposes to do, hut I would have been better satisfied to vote for this measure in exactly the form in which the Attorney-General has brought it down, if he had been in a position to give us the definite assurance that this legislation would meet with the full approval of the Imperial authorities. The Attorney-General last night did say that he had sent the text of the measure to England - I imagine the actual text went quite recently - that he had had considerable correspondence with the Home authorities, and that they knew exactly what we intended to do. But what the AttorneyGeneral did not tell us was what their opinion was upon what we intended to do. I think, at a time like this, the House should be entitled to receive from the Attorney-General, without any qualification, the actual opinion which the Imperial authorities have expressed in rega: d to this legislation, because everybody must- admit at once that the contracts wo are now dealing with do not affect us only. They have essentially an Imperial aspect, and this legislation may be much move far-reaching in its effect than any honorable member has any idea of. The great trouble which I find in regard to the whole of this legislation is that it is general legislation intended to deal with particular cases. It would have been infinitely better if, instead of bringing down a Bill in general terms like this, the AttorneyGeneral had satisfied himself as to the necessity for the cancellation of the contracts which, no doubt, all honorable members have in their minds, and if he had then introduced a Bill to deal with these contracts in particular. We would then have known exactly where we are, but we are now legislating in a general way about a great many things of which we have no knowledge whatever. We do not know what classes of contract - other than those which are in the mind of tho Attorney-General, as shown by the specific instances he gave in his speech last night - this particular legislation may affect. My point is this : We are dealing with very extraordinary circumstances. We are bringing in what everybody will admit ,is very _ extraordinary legislation. If we brought in legislation such as this in times of peace we should be rightly charged with being a nation absolutely devoid of all moral sense of honour. We are now introducing general legislation to apply to all contracts, whatever their nature, existing between ourselves and enemy subjects. “We all recognise the seriousness of the position from the Australian stand-point. We all recognise that it would be infinitely better if we could set the wheels of industry going once more at Broken Hill to the same extent that they were before. We all recognise that if it were possible .to cancel these contracts, and set up a new industry in Australia to deal with the raw material from Broken Hill, it would be to the national advantage. But, nevertheless, even with these particular contracts in mind, I think it would have been advisable if the AttorneyGeneral had come down to the House with legislation dealing exclusively with them, so that we could- have argued them on their merits, rather than that he “should have brought down this general legislation, which, as I say, may apply to contracts of every description. I was very much interested, in looking into the discussion which arose in the House of Commons, and to which the honorable member for Darling Downs has already referred, to observe that a case which is almost on all-fours with those with which we desire to deal waa mentioned by Mr. Hume Williams. It will be found on page 1236 of the English Hansard that this honorable gentleman said -
The kind of case that is in my mind, and which makes it so essential that we shall deal with this proposition now if we can, is a case brought before me the other day of a very large firm in England producing goods whichrequire to be finished.
That is very much the case of the Broken Hill Company -
They have a contract with a German firm to send all their output for treatment, and this contract is for a period of ten years. The English firm is sure that that contract is put an end to, or can bc put an end to, at their option. They are prepared to carry out the treatment in England, and to spend very large sums in England upon the erection of the plant required.
We have an almost identical condition of affairs in connexion with the operations of the Broken Hill Company, who have been asking the Imperial authorities for permission to raise the necessary capital to treat in Australia the raw product which they derive from their mines. Mr. Williams went on to say -
Thereby they will give a great deal of employment to English people, both in the erection of the factory and the ultimate treatment of the product. Very rightly, however, they want -to be told that if they do that - that if they treat the contract as broken, and make these extensive arrangements to deal with their product themselves in future - -they will be doing the right thing. All I suggest to the House is that any contract for the future supply of goods to enemies that was in existence on the 4th August, or which may be entered into during the currency of the war, is hereby declared to bc null and void.
That is what we propose to do by this Bill. Mr. Williams went on to say that he could not possibly give his adherence to the proposal made by Mr. Robertson, who desired to incorporate in the Trading with the Enemy Bill practically the very legislation which the AttorneyGeneral now asks us to adopt. The honorable gentleman claims that there is some legal difference, at all events, between the proposal submitted by Mr. Robertson in the House of Commons and the legislation which he is submitting here. No doubt this legislation goes a very great deal further than what Mr. Robertson proposed. The AttorneyGeneral proposes something more than the cancellation of all contracts which exist between Australians and enemy subjects. As I understand the matter, the word “ contract “ has in law a very wide meaning, and possibly covers a great many matters other than those which honorable members generally have’ in their minds in considering this kind of legislation. I see that the AttorneyGeneral, of England, in discussing this subject, pointed out that the legislation suggested by Mr. Robertson would probably apply, amongst other things, to a contract of marriage between a British subject and an enemy subject, and would render it null and void. For aught I know, the proposal now before this House might go as far as that. The Attorney-General proposes to cancel contracts existing between British subjects which have been suspended by the war. Is the honorable gentleman fully satisfied that, if that is done, all the parties to a contract which has been suspended by the war will be willing that the contract should be cancelled?
– I am not aware of that at all. There are, I regret to say, some British subjects who are more concerned about maintaining their trade with Germany than they are about upholding the interests of the Empire.
-ThatisnotwhatI was endeavouring to put to the honorable gentleman. Under clause 4, certain contracts will have been suspended during the war. I do not know what these con-‘ tracts may be. They may include contracts, for instance, for the supply of meat during the war. These contracts may be between British subjects. One of the parties to one of these contracts may ask for the cancellation of the contract because it would be to his interest to have it cancelled, though it might, at the same time, be a most inequitable thing to do. The Attorney-General has introduced a Bill to deal with specific cases that he has in mind, and most honorable members are in accord with him up to a certain point in their desire that the wheels of our great mining industries shall continue to go round. We do not know whether this proposal will accomplish that purpose ; but I do suggest that it would be unwise to pass general legislation in this way when the object is to deal with specific cases. This might lead to the cancellation of many contracts simply because it might suit some of the parties to such contracts to have them cancelled. Our people have entered into many contracts for the supply of all sorts of perishable products from Australia, such as meat, butter, and other things.
– Does the honorable member suggest that we should deliberately foster and keep alive those contracts with Germany after the war?
-Iamnottalking now about contracts with Germany. I thought I had made that sufficiently plain to the honorable gentleman. I am talking of contracts between British subjects, and from the highest moral stand-point there may be every reason why such contracts should be kept alive. Scores of contracts have been made between citizens of Australia and citizens of British Possessions in other parts of the world, and those contracts have been suspended owing to the war. The Attorney-General has introduced legislation which will leave it optional with one of the parties to such a contract, because it hasbeen suspended by the war, to come along and claim the protection of this legislation, and say that he will have nothing further to do with the contract.
– Does the honorablemember think that the Germans will plead for this protection?
– I am not talking about Germans, but about British subjects. The Minister of Home Affairs knows very well that citizens of Australia have business relationswith the citizens of British Possessions in China, in. the Pacific Islands, South Africa, and Canada.
– They are not enemies of the King.
– I know that they are not.
– Can thehonorablemember mention one of these contracts, not with an enemy subject, which is likely to be suspended by theBill ?
– Yes, I can. I cannot give the Attorney-General precise information regarding an actual contract, but there are such contracts. A man in Australia may have entered into a contract with a man in Hong Kong, five years ago, to supply meat for a term of ten years at a certain price. Now, as every one knows, the price of meat has gone up in Australia by leaps and bounds, and it would suit an Australian contractor in the position of which. I speak to claim the protection of the law and cancel the contract. But that would be a commercially dishonest thing to do. The contract has undoubtedly been suspended owing to the war, but directly the war ceases, if there is not legislation such as this, which is general in its application, it will again have full effect.
– Under the Bill it is necessary to serve the other party with notice.
– Is it not obvious that there are commercial men who would immediately serve such notice, and take advantage of the law?
– I cannot believe that there are men who are so lost to all sense of honour.
– I have heard the AttorneyGeneral express a very different opinion in this chamber in regard to commercial men who are not under nearly so great a temptation to act dishonestly as those of whom I speak.
– The Bill deals with enemy contracts. Clause 4 does not stand alone.
– I contend that it does. It says that either party to a contract to which it applies may, by notice in writing to the other party, terminate the contract as regards all rights and obligations relating to any future supply or delivery under it; and, further, that the clause applies to any contract for the sale or delivery of goods the performance of which is, by the operation of law or by the terms of the contract, suspended, or is, or may be, by act of a party, suspended during or on account of the present war.
– It must be an enemy contract.
– No, not at all.
– Many contracts with neutrals, and even between British subjects, contain the condition of suspension in the event of war.
– The AttorneyGeneral makes it possible for scores of contractors in Australia, who have entered into what have become unprofitable bargains, to take advantage of the law to terminate the contracts, and I am afraid that it will be only too easy to find persons who will do this sort of thing. They will say, “ You opened the door for this to be done.” Contractsvary in a thousand different ways, and apply to every kind of buying and selling, and to other obligations, and we are asked to pass legislation in general terms which will enable contractors to do what is commercially immoral.
– Sub-clause 4 of clause 3 says that, if the Attorney-General declares that the contract is not an enemy contract, then it shall be deemed not to be an enemy contract.
– That provision does not affect clause 4. Each clause stands alone.
– The Bill is a Bill for an Act relating to contracts; not for an Act relating to enemy contracts.
– The contracts to which clause 4 applies are explained in clause 4.
– Clause 3 deals with enemy contracts, which are declared null and void. About that I do not propose to express any definite and determined opinion this afternoon. Without knowing that we have the full co-operation of the Imperial Government, or that Germany has taken similar action, the wisdom of what is proposed is doubtful. I doubt whether, in the circumstances in which we stand, what is proposed is commercially moral. I wish to read a further extract from the speech of the Attorney-General of Great Britain. He is speaking of the enormous difficulties of the situation, of the wide scope of the proposal, and of the vast diversity of the contracts to which legislation might be applied, and he says -
There, again, I believe it would be possible to have useful conference and discussion, but unless I was satisfied that there was a simple rule to be laid down by an Act, which was not only fair and right, but a thing which those concerned universally accepted and regarded as what they wish, I do not see what the good would be. The real truth is that there are some people at the moment in this country who believe that their contract will not be terminated at the outbreak of war, and there are others that think the opposite. Therefore, if you have to have a rule at all, it must be one that will do justice between those two sets of people.
There are two classes of contracts, and two classes of contractors. There are those, like the Broken Hill people, who desire to have their contracts terminated, and there are others who, having contracted for a long term of years, desire the opposite. What makes the real difference between them ? The class that wants to have its contracts terminated does so because of some commercial advantage which it thinks will follow, and the other class, that wishes to have its contracts continue, thinks that by their continuation after the war it will get some advantage. There are those who wish to have their contracts terminated, and those who wish their contracts to continue. The Attorney-General of England continues: -
It may be that a man has purchased from Germany, and arranged a contract for future deliveries at a certain price, and on the face of that he may have resold to another British subject at a big profit, and it may be that this second person has sold to a third person. How are you going to deal with that case?
I do not think that this legislation touches the case at all, because there may be a great many subsidiary contracts which hinge on the original contract. That is the position which the Attorney-General of England is putting to the House of Commons, and I have not the slightest doubt that here there is a groat number of subsidiary contracts which hinge on the main contract. Supposing that a main contract is broken under this measure; what, I ask the AttorneyGeneral, will become of the subsidiary contracts?
– They will be in this position, that the lesser fleas with the bigger fleas are drowned.
– No doubt they will be drowned, but it will not for a single moment relieve a liability of the one as against the other. You will have the liabilities later on, and what is to become of them?
– They will be affected in exactly the same way as the contract on which they depend.
– Does the Bill say so?
– Clause 4 does.
– I doubt if there is any mention in the Bill of a subsidiary contract which hinges on another contract.
– The Bill, of course, cannot set forth in plain words a provision for every conceivable contract, but it does so in general terms, and I think that those terms are wide enough to include the subsidiary contracts to which the honorable member refers.
– I very much doubt that.
– We live in an atmosphere of doubt, of course.
– I am inclined to think that the honorable and learned gentleman will find, when he comes to look into the matter, that in all probability the, subsidiary contracts will not be protected in any way by this measure, and that we shall have a whole series of actions fordamages brought against persons who had been deprived in the first instance by this Parliament of the possibility of fulfilling their contracts, and consequently left open toheavydamages in Courts. How are you going to deal with the case which the Attorney-General of England put to the House of Commons ?
Is one party to have the opportunity of declaring the contract off, while the other must carry it out ? I know that I shall be reproached with not taking a bold course, but I am sorry to say that I have not found the answer to this problem, and I really doubt whether it is to be found. What I do say is that it is quite impossible to legislate on this problem by putting new clauses into this Bill.
– Hear, hear! Contracts ought to be sacred.
– Will the honorablegenttleman look at the alternative to this measure ?
-Yes, and I endeavoured to do that at the very outset of my address this afternoon.
– In the present position it is impossible.
– Undoubtedly there are specific cases of enemy contracts which should claim the attention of this chamber. Ibelieve that the best thing for this Parliament to do will be to deal with these specific cases, but the view I am expressing this afternoon is that Ido not think it is a wise thing for this Parliament to introduce general legislation to meet specific cases. That is always a very dangerous thing to do.
– Would you have us impose pains and penalties on certain corporations ?
– We are dealing with an extraordinary situation, and we should adopt extraordinary means. It would be infinitely better to deal with those specific cases which we really do desire to deal with, than to pass general legislation of this character, which makes it possible for contracts to be cancelled, which no honorable member has in mind, but the cancellation of which may be found advantageous to certain individuals in the community.
– That is a good German defence.
– What has my argument to do with Germany ?
– I understand for whom the honorable member’s brief has been put up.
– That interjection is very unjust. The honorable member tells me that I am speaking on a brief for somebody else.
– It looks like it.
– I cannot understand a suspicion like that being in the mind of any honorable member of this Parliament. Does the Minister of HomeAffairs accuse me of advancing a claim on behalf of a German company in this country? Is that the insinuation behind his remarks ?
Mr.Watt. - That was the suggestion; and I think it is unparliamentary.
-The Minister will not say straight out what he has just insinuated, and his insinuation is a most ungenerous one to be made in any British Parliament.
– What matters what he thinks ? Who takes any notice of him ?
– I am sure the Opposition has shown every desire to assist the Government in every possible way. I have not discussed this Bill with anybody in the chamber or out of it. I simply rose to state the view that by passing clause 4 in its present form we shall be opening the door for the cancellation of scores of commercial contracts, which, perhaps, are unprofitable to carry on. We should not do that. Such a course would be commercially immoral; only commercially immoral people would take that action, and we have no right to give them legislative sanction to do it.
– The House is indebted to the legal talent on the opposite side for the illumination which has been shed on this measure. There is, of course, the one objection which always attends an increase of illumination, and that is a widening circle of darkness. The only portion of the Bill about which I have any doubt is clause 4, which we have been told stands alone. I do not know whether the clause does stand alone, but if the Attorney-General says that it does, I think the Bill should be amended and the clause linked up with the other provisions in the measure so that it will not be competent for any one to take advantage of it in order to escape from an unprofitable contract. I hope that is not the effect of the clause; indeed it is news to me that a clause like that can stand alone. I admit that the clause reads that way, but there is so much in legal documents that reads one way and means the reverse that I would like to have the assurance of the AttorneyGeneral on this point. As to the general tenor of these provisions, any one who is a patriotic subject cannot be opposed to them.. We know very well the extent of German perfidy; I use the word advisedly, because if it were not for the actions of the German people there would be no need for a Bill of this character. They have so spread their tentacles throughout the world that they have control- of all forms of trade and commerce, particularly of many articles of modern manufacture. Apparently they have been able to induce leading commercial men in all parts of the world to come into their power ; they have induced them by the attractiveness of commercial combination, and its enhanced profits, to allow Germans a monopoly of trade of one form or another, until now we find that the production of many essentials, particularly in time of war, are concentrated in Germany, and that contracts throughout the world, which are factors contributing to her strength at this juncture, are to be allowed to stand. That condition ought not to obtain ; something ought to be done to sever those contracts. It is a difficult task, but this Bill seems to be one means of accomplishing it. Another vital point is as to who should be the judge of these matters. It has been said that it is not good enough to leave this responsibility to the Attorney-General. In; a matter of this kind, we require summary jurisdiction, and not the hampering procedure of forms to interfere with our protection and development of industries that, are now stifled on account of their relationship with German organizations. Therefore, the quicker these measures canbe passed and carried into effect the better. I have confidence in the AttorneyGeneral, and I am prepared to trust him. Even if this power were to be exercised by the Attorney-General of a Liberal Government, I would still say that, in the circumstances, we must act quickly.
.- >io doubt this Bill is very popular with a great many people in the community, and it would be popular in this Houseif members on both sides were absolutely sure of one or two things. One very large question involved is - what is the Imperial position in regard to this matter? If we are not careful we may do something which will involve some part of the Empire in serious consequences, which we have no desire to bring about. Until we have from the Attorney-General someassurance, that we are acting in harmony with all that is contemplated to be done by the British Parliament it would bewise for us to stay our hands.
– Are we ‘not a selfgoverning Dominion ?
– We are, and we can take this action. Nevertheless, we are at war, the times are not normal, and it is not what we are doing here that X am afraid of; it is rather the indirect effect which our action might have in the international or Imperial sphere. It might do very much more harm than good.
Mr.Watt. - In all other matters, the Government have followed the lead of the British Parliament since the war broke out.
– That is why I wish to stress this point. We have tried to act in co-operation with the British Parliament; the whole Empire is acting as one, so far as war legislation is concerned, and as this Bill arises out of the fact of the Empire being at war, in this matter also we should act in concert with the Imperial and other Dominion Parliaments.
– I think this is a special case.
– Then why not bring in a Bill that will deal with special cases ?
– The law has to be made very comprehensive to catch everybody.
– If it is to be made comprehensive, there should be a safeguard inserted, so that it may not be left to the sweet will of anybody in the community to take advantage of the law. We’ are asked to pass legislation of a very far-reaching character. This Bill deals with trade and commerce, which, in these civilized times, has become a very complex thing throughout the world. We are now under the influence of war; our minds are more or less inflamed with certain ideas; and we are desirous of making a thrust at the foe. In such circumstances, we are not likely to take the calm and impartial view which we ought to take; and, if we are not careful, instead of doing what we desire to do, we may overreach ourselves, and do our people more commercial injury than good. I desire to compliment the AttorneyGeneral upon the informative and interesting speech he delivered when introducing this Bill last night. It has been clear for some time that Germany was securing a great deal of the world’s trade, and was getting a monopoly of some lines of production. So far as Australia is concerned, that monopoly applies particularly to those complex ores which are the product of Broken Hill and the West Coast of Tasmania. Germany was prac tically the only country handling these ores in certain of the processes of manufacture. What I should like to know, if this Bill be passed, is this - Is Broken Hill likely to develop by leaps and bounds, and are these ores likely to be treated in Australia within reasonable time? I am afraid it will take some time to arrive at the stage when we can treat all these ores in order to place them on the market.
– You wish to further delay that time.
– I do not; but we are entitled to know what the result is likely to be. A delay of a day or two in the consideration of this Bill would not hurt the House or the community.
– Why do you wish to delay it?
– I desire to be sure that we are acting in concert with the British Parliament in this matter.
– The honorable member for Maranoa must not raise that “gag.” The Government have been treated fairly, and he knows it.
– You are “ stone-walling “ this Bill, at any rate.
– Is the Government Whip in order in alleging that we are “stone-walling” this Bill?
– Interjections across the chamber, no matter from whom, or from which side they come, are disorderly. If the honorable member for Maranoa has accused the honorable member for Wilmot of “stone-walling” the measure, I must ask him to withdraw his words.
– I did not accuse the honorable member for Wilmot; I accused the whole party opposite of “ stone- walling.”
– I must ask the honorable member to withdraw the words.
– I withdraw the words as referring to the honorable member for Wilmot.
– The honorable member must withdraw the words generally.
– I withdraw the words generally.
– I think that interjections of this sort are somewhat ungenerous just now.
– Order ! Will the honorable gentleman proceed ?
– I was merely going to say that, in the case of war measures we are all trying to pull together, and there has been no delay of any measure that the Government have asked the House to pass. As a rule, when a war measure is introduced, we simply ask whether the Government think it necessary.
– The honorable member is now discussing an interjection that I ruled out of order, and I must ask him not to do that.
– While I desire that we should deal with this Bill with reasonable despatch, I must be satisfied that it is properly considered, so that we may not find we have done something silly. We were informed last night by the AttorneyGeneral that he had sent” the text of this Bill Home, and I think we ought to be told whether he has had an answer from the Imperial authorities, indicating what view they take of it - whether they have in any way suggested that the Bill should not be proceeded with. In the absence of any information in this regard, I should be prepared to vote against the motion for the second’ reading, because, as members of this House, we are entitled to know the nature of any reply that may have been received from the British Government. I have no desire to cast my vote against the Bill, because I am in sympathy with a great deal that it contains. I should be only too glad to know that, if the Bill be passed, we shall see the Broken Hill Company and other great metal-producing bodies :n Australia setting the wheels of industry in motion in the way in which they have not been able to do in Australia before. Has the Attorney-General any information that he has not disclosed to the House as to how the British authorities view this Bill?
– None that I have not given to the House.
– Does the AttorneyGeneral know why the British Parliament has held up a similar Bill for a time?
– I do not even know why this Parliament does not pass this Bill !
– That is scarcely an answer, seeing that the question has not yet been put to the House.
– Honorable members opposite will not allow us to get at that stage.
– In a matter of such magnitude, in regard to which we are acting in line throughout the Empire, we ought to know exactly how the legislation is viewed by the other Dominions. Clause 4 seems to me so wide as to possibly affect a contract between Australians. It might happen that some one in Queensland had a contract with a person in Western Australia to supply and deliver goods, and, in case of a suspension in consequence of the war, a notice might be served that it was at an end. I am quite sure that any such results are not in the mind of the Government, though, as I say, the clause seems to be wide enough to permit of them. Cannot we in some way induce the AttorneyGeneral to safeguard this clause? According to the first part of the Bill, the Attorney-General is constituted a sort of judge as to whether contracts are enemy contracts or otherwise, but there is no such safeguard in clause 4.
– I shall make the clause as safe as you like when we get to it.
– It is all very well for the Attorney-General to urge us to hurry up with the Bill, but I remind him that we have not had any time to consult authorities.
– It is necessary that these gentlemen - these combinations - should be tightened up, and honorable members opposite do not wish to tighten them up.
– I am not opposing the Bill or urging its delay in the interests of any particular persons, but I think we ought to have some assurance on the point. It is a serious step that we are asked to take, and it is possible, unless we are very careful, that what we do may react on ourselves with boomerang effects not anticipated at the’ present time. Of course this is a Bill that can be discussed just as freely in Committee, practically, as on the second reading ; but I am not anxious to occupy the time of honorable members further when we reach that stage. If I cannot obtain an assurance from the Attorney-General that the Bill is not contrary to the wishes of other self-governing Dominions, I shall take every opportunity that is afforded me in Committee to hold up the measure as a protest against it.
– Do not do that.
– I have seen it stated in the press that a measure similar to this-
– The honorable member is not “stone-walling”?
– I am not. I have only had an opportunity to look into this Bill to-day. But, at least, I have read it, and that is a great deal more than a majority of honorable members opposite have done. They are ready to swallow anything, and then to go out and indulge in a war whoop, as if they had flattened out the enemy, when, as a matter of fact, the Bill will probably affect the Australian community adversely more than it will the enemy. This is really a serious matter, and, as I have already said, the Bill is one which naturally would be very popular at the present time. I agree with its provisions up to a certain point, but I am not going to rush in and strike a blow when I know that by deferring action for two or three days we shall probably be able to strike a much more effective blow. The speech of the AttorneyGeneral, it is true, supplied honorable members with a great deal of information. But he cannot assure us that the Bill will be favorably viewed by other parts of the British Empire. If the measure had no international aspect - if it lacked an Imperial outlook - I would not hesitate to support it so long as the Government were prepared to accept full responsibility for it. When Parliament reassembled a short time ago honorable members upon this side of the Chamber were quite content to allow our leader to state the position which they assumed in respect of the war.
– And they are carrying out their professions, are not they?
– I do not consider that we have been treated quite openly in this matter. If we are prepared to assist the Government, the least the latter can do is to afford us the fullest possible information upon this Bill.
– The Government are foolish to accept any favours from honorable members opposite.
– I ask leave to continue my remarks.
– I was a member of the Society for the Prevention of Cruelty to Animals for some years, and I feel for the honorable member, but he certainly must continue his remarks upon this occasion.
– I am going to extract from the Attorney-General an answer to my question. Can the honorable gentleman assure us that if the Bill be passed in its present form no part of the Empire will protest against it?
– I cannot say anything of the sort. There is Fiji, for instance. Does the honorable member hold me answerable for what may be done in Fiji?
– If the AttorneyGeneral intends to treat this matter in a flippant way I do not. When I speak of the British Empire he knows full well that I am referring to the Imperial Parliament, or to some of the self-governing Dominions, such as Canada and South Africa. I ask him whether he has any reason to believe that, in its present form, the Bill will run contrary to their wishes?
– I can no more answer that question than I can answer for their attitude in regard to the Tariff. I do not know whether they are in favour of the Tariff. Does the honorable member?
– That is an entirely different matter. The Tariff is a measure which primarily affects Australia. But the Imperial side of the question which is involved in this Bill quite overshadows its local side. The measure is one which would not be brought forward in normal times. It is quite different from a Tariff measure. I repeat that the Imperial aspect of this measure is greater than i3 its local aspect, and, consequently, I am quite justified in protesting against it. In the absence of any assurance from the Attorney-General that the Bill does not run contrary to the wishes of the selfgoverning Dominions—
– Does the honorable member suggest that we should cable to them to ascertain their wishes?
– There is no need to cable, because the Attorney-General has told us that the text of the Bill was cabled Home fourteen days ago.
– The Postmaster-General did not know that.
– I am not at all surprised. The Postmaster-General has such a large Department to control that he has no time to devote to anything else, and, consequently, I can quite excuse any lack of knowledge he may exhibit in this connexion. It is reasonable to assume that the Imperial authorities have intimated to the Commonwealth Government their views upon this question. If it be true,as reported in the press, that a very similar Bill to that now before us was introduced in the House of Commons, but was not proceeded with because of certain questions raised at Home, then it becomes doubly necessary to carefully consider what should be our action.
– But has such a report been published?
– I understand so. If the Attorney-General can tell me that the British Parliament has passed a similar Bill-
– What is much more to the point is that I can assure the honorable member that every State Parliament of Australia is prepared to pass such a measure.
– That is not more to the point. This Bill relates to the whole Empire rather than to any individual State.
– The honorable member is aware, perhaps, that the powers of this Parliament, subject to the Constitution, are sovereign.
– I am; but we ought also to remember that -
O ! itis excellent
To have a giant’s strength; but it is tyrannous
To use it like a giant.
I take the view that, whilst retaining the good in clause 4, we may mitigate its dangerous element. The sting of the clause would he removed if it were so amended as to provide that the permission of the Attorney-General, or some competent authority, should be obtained prior to the serving of a notice of intention to annul a contract. As the clause stands, it is quite possible that firms or persons within the Commonwealth, absolutely uninjured by anything outside, might take advantage of this Bill. Unless such an amendment be made as that which I have suggested, things may be done which no one, with any sense of commercial morality, would tolerate, even in these unprecedented times. A man in Queensland might break a contract entered into with a citizen of Western Australia.
– What a naughty man he would be.
– I have heard the Attorney-General, in this House, declare thatwe have in Australia many naughty men, especially in association with big companies. Does the Attorney-General think that there is any chance of the clause being amended in the direction I have indicated?
– There might possibly be some chance.
– Will the AttorneyGeneral be reasonable for once, and give us an assurance that such an amendment as I have suggested will receive due consideration ?
– Then I have no more to say.
Debate (on motion by Mr. Joseph Cook) adjourned.
Bill returned from the Senate, without amendment.
House adjourned at 4.3 p.m.
Cite as: Australia, House of Representatives, Debates, 7 May 1915, viewed 22 October 2017, <http://historichansard.net/hofreps/1915/19150507_reps_6_76/>.