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Senate
17 July 1901

1^st Parliament · 1^st Session

QUESTION
- HANSARD: SESSIONAL EXPENSES
QUESTION
- COMMITTEE OF ELECTIONS AND QUALIFICATIONS
POST AND TELEGRAPH BILL
SERVICE AND EXECUTION OF PROCESS BILL
PROPERTY FOR PUBLIC PURPOSES ACQUISITION BILL
PUBLIC SERVICE BILL
PAPER

The President took the chair at 2.30 p.m., and read prayers.

page 2575

QUESTION

HANSARD: SESSIONAL EXPENSES

Senator STEWART:
QUEENSLAND

asked the VicePresident of the Executive Council, upon notice -

The average weekly cost of printing Hansard to date?
The average weekly cost of lighting and heating the Parliamentary Buildings to date?
The average weekly cost of extra attendants owing to Parliament being in session ?

Senator O’CONNOR:
Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

– The average weekly cost of printing Hansard to date, proof and final editions, is £302. The weekly cost of lighting and heating the Parliamentary Buildings for the months of May and June is £571s. The average weekly cost of extra attendants, owing to Parliament being in session, is £37, being the wages of sessional hands employed in the Senate, the House of Representatives, and the refreshment-room.

page 2575

QUESTION

COMMITTEE OF ELECTIONS AND QUALIFICATIONS

Saunders v. Matheson.

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– With regard to the order of the day for the consideration of the report of the Elections and Qualifications Committee on the petition against the return of Senator Matheson, we are all aware that matters of privilege ought to be dealt with at the earliest possible moment, and if there were anything in the report which demanded to be immediately dealt with, I should not ask the Senate to depart from the usual procedure. There is no immediate hurry, and I received a communication to-day from

Senator Sir Josiah Symon, who moved the motion which resulted in the report, stating that he would not be able to be here, and asking me to postpone the consideration of the matter until this day week. As the question involved is an exceedingly important one, and as he, I gather, was practically responsible for the report, I think it only fair to him, and advisable in the interest of the Senate, that the postponement should take place. I therefore move -

That the order of the day be read and discharged, and made an order of the day for Wednesday next.

Senator Sir Frederick Sargood:

– How will that affect the senator concerned?

Senator O’CONNOR:

– He has informed me that he makes no objection to a postponement.

Senator WALKER:
NEW SOUTH WALES

– Mr. President-

The PRESIDENT:

– I do not think that this matter ought to be debated.

Senator WALKER:

– I only wish to ask a question, namely, are the minority at liberty to enter their reasons for disagreeing with the report of the majority?

The PRESIDENT:

– They can, in debate.

Question resolved in the affirmative.

page 2575

POST AND TELEGRAPH BILL

In Committee (consideration resumed from 10th July, vide page 2282) :

Postponed clause 89-

Telegrams shall as far as practicable be transmitted in the order in which they are received, but urgent telegrams, that is to say, telegrams for which the prescribed increased rate is paid and telegrams relating to the arrest of criminals, the discovery or prevention of crime, the administration of justice, and when so required telegrams on the public service shall be transmitted before other telegrams.

Provided that regulations may be mode prescribing the order of transmission of delayed telegrams, that is tosay, telegrams upon which reduced rates are paid.

Every officer wilfully offending against the provisions of this section shall be liable toa penalty, not exceeding One hundred pounds or imprisonment not exceeding two years.

Senator DRAKE:
PostmasterGeneral · Queensland · Protectionist

– Senator Sir Frederick Sargood has an amendment to move on this clause, but before proceeding with the business I wish to state that I have had all the amendments proposed to be made reprinted and circulated. They comprise the amendments which I hope to make on recommittal, and also the amendments of which notice has been given by that honorable senator. If any amendments have been omitted I shall be very glad if they are pointed out to me.

Senator Sir FREDERICK SARGOOD:
Victoria

– The amendments, asthey have been reprinted, make confusion worse confounded. This morning I received a copy of the amendments covering a volume of paper, and arranged very differently from what I have been used to. It would be a wiser and more convenient plan to print the amendments of each senator on a separate sheet. As it is, I have to hunt all over this paper to find my amendments.

Senator Drake:

– I have endeavoured to put them all in.

Senator Sir FREDERICK SARGOOD:

– I do not say that they are not contained in the paper, but if the amendments were put under the name of the honorable senator by whom they are to be moved, weshould know exactly what to do. I hope that the Minister will give consideration to that suggestion.

Senator Drake:

– This practice was adopted without any suggestion from me in the first place. I simply followed it.

Senator Sir FREDERICK SARGOOD:

– The amendment of which I gave notice was for the insertion of a sub-clause, providing that a telegram should be transmitted by the route prescribed by the sender, at the tariff for that route. This is in accordance with the agreement of the International Telegraph Convention at Berne. At present there is what is called Reuter’s telegraph line, which would be more or less under the command of the post-office. There is also the route by way of the Cape and before very long there will bo a route by the Pacific, and probably also a route north from the Cape or what is known as the Cape-Cairo line. The principle was laid down by the Berne Convention in regulation number 2 that the sender of a telegram should have the right of deciding by what route hia message should be sent. The object of my amendment is to carry out that rule. I need hardly say that the immediate effect of it would be that those who preferred to send their messages by Reuter’s line could do so. On the other hand, those who preferred to send their messages by the line of the Eastern Extension Telegraph Company could do so. Unless this concession be given in the Bill it will entirely destroy the position taken up by New South Wales and South Australia under which - rightly, I think - they have taken advantage of that company’s line, and, as a matter of fact, a very large number of merchants invariably send by that line in preference to the others as being equally rapid and more economical. I move -

– Why not? If there are several cables from Australia to Great Britain, and if the Post-office have the right to send messages by either route, what object is there in putting in this provision, which will enable certain interested persons to send messages by one route in preference to another, causing one line to be blocked while the other is lying idle 1 If the rates are the same the Post-office should have the right of sending messages by whatever route is most convenient.

Senator MiLLEN (New South Wales).Whatever doubt I may have had at first with regard to this matter has entirely disappeared after hearing the remarks of the Postmaster-General. He has furnished excellent reasons for adopting the amendment proposed by Senator Sir Frederick Sargood. The Postmaster-General states that the postal authorities should have the absolute’ right of determining by which route messages intrusted to them should be forwarded, and he furnished some reasons why his department should be placed in that position. But surely the honorable and learned senator has not overlooked the fact that that will place in the hands of the PostmasterGeneral an absolute power to shut up a private cable.

Senator Sir John Downer:

– That is what is intended.

Senator MILLEN:

– If it were really intended to do that, one could understand the insertion of a clause for the suppression of private enterprise entirely. But let it be an open clause, so that we may know what we are doing. Under the Bill as it stands, the Postmaster-General will be able to determine that, the rates being the same, all messages shall go by the State-owned cable. I am not sure that if the rates were different he could not insist that the messages should go by the State-owned cable.

Senator Sir William Zeal:

– Supposing he does, what disadvantage is that to the public ?

Senator MILLEN:

– The very disadvantage that the Postmaster-G eneral himself has been careful to point out, that the Stateowned cable might be choked with business, while the other lines were lying idle. In order to cany out this policy of State ownership of the cable we might have the postoffice forcing all the business over one line to the disadvantage of the others; In this way the department would be able to say that private cables should not be allowed in Australia. We should leave it to private individuals to say to whom they will intrust their messages. If they were allowed to do so, what harm could result ? Why should not every person who wishes to send a cable message be able, to decide by which route it shall be transmitted 1 It seems to me that we should do one of two things, either determine to stop privately-owned cables altogether, or else leave every man who wishes to send a cable message free to select the route by which his message shall be transmitted.

Senator DRAKE:

– It should be remembered that a State-owned cable is not in the same position as a privately-owned cable for the reason that the State-owned enterprise is conducted in the light of day. It has to publish its rates and it cannot allow any discount. One man has to pay the same rate as another. But a privatelyowned cable can make secret agreements with certain - persons to take messages at reduced rates. If a proposal of this kind is allowed to go in the Bill it will mean that the private cable company will be able to make such arrangements with the public as will enable it to obtain all the cream of the business, and the Stateowned cable will have to carry such messages as come to it at its published rates.

Senator Sir FREDERICK SARGOOD (Victoria). - What the Postmaster-General seeks to do is an impossibility. It simply means this : That the merchants of New South Wales, and, I think, of Tasmania also, will have to do what the merchants in Victoria have done for a considerable time past - send their cablegrams to Adelaide to be forwarded on by the Eastern Extension Company.

Senator Sir William Zeal:

– That does not prove that it is right.

Senator Sir FREDERICK SARGOOD.I am perfectly aware that neither the honorable senator nor myself is always right. But I say strongly that those who wish to encourage freedom of intercourse should not allow this monopoly to be taken by the Postoffice.

Senator Sir JOHN DOWNER:
South Australia

– As far as the cable communication exists at the present time, or has existed in the past, it has been due to private enterprise. The argument of Senator Millen appears to me to be absolutely unanswerable. If the Postmaster-General means to make a declaration that all the cable business shall be owned by the Government and that no private company shall be allowed to have a share of it, we can discuss the matter on that basis. The Postmaster-General says that the general public must not be allowed to say by what route they shall send their messages. If the rates are unequal, that will adjust itself. No injustice is done, because the man who pays the lower rate will have his cablegram sent over a line to which that lower rate is applicable as a matter of course. But the difficulty, says the Postmaster-Genera], is when the rates are equal. I want to know why the Government has any possible right to a monopoly which is to kill’ a private line ? The reason given on the face of it is an answer to the argument itself - because people who send telegrams might make arrangements with ‘the private companies to send them at a lower rate than the Government would charge. So much the better for them if they do.

Senator Drake:

– But not for the general public.

Senator Sir JOHN DOWNER:

Senator DRAKE:

– I cannot see how it could affect the land lines, either directly or indirectly. If there are two routes I think the Postal department the very best authority to decide over which route a message should be transmitted.

Senator Clemons:

– Irrespective of rates?

Senator DRAKE:

– Decidedly. If there were two competing lines, and they were owned by different States, no doubt each State would like the message to go over its line. Surely, however, the Post-office should decide. In arriving at a decision, it would consider the public convenience, and it would send the message over the route that was least blocked. The question of allotment of revenue does not arise in connexion with this matter. In a great many cases we can send messages to one particular town over three different routes.We simply keep the three lines as busy as we can, and send the message by the route most convenient. If this amendment were intended to apply to land lines the absurdity of it would be seen at once. If a man wishes to send a telegram to Ballarat he does not prescribe the route by which it shall go. A message to that city can be sent through two routes, and the Postal department send the wire over the line that is least busily employed.

Senator CHARLESTON (South Australia). - The Postmaster-General must know that the South Australian State-owned line connects at Port Darwin with the EasternExtension Telegraph Company’s cable. Therefore, in referring to theland lines, we are practically speaking of the ocean lines as well. I see that Senator Playford is prepared to speak on this subject, and as I know he is thoroughly conversant with it, I will give place to him.

Senator PLAYFORD:
South Australia

Senator Sir WILLIAM ZEAL:

Senator PEARCE:
Western Australia

– The amendment resolves itself into the question of whether we are to allow the Telegraph department to be controlled by its customers or by its official head? If senders have the right to say by which route their messages shall go, and there are alternative routes, then certainly the control is taken out of the hands of the department. When we look at the clause in the light of the fact that there will be a State route, or what is known as the Pacific cable, the argument of Senator Playford in dealing with the South Australian land line loses much of its force. The action which he pictures an imaginary Minister as having taken would be the action of a person who wanted to ruin his own business. Certainly for five years South Australia would have to bear the loss, but the ultimate loss would fall on the Commonwealth. Will he say that the Minister, for the purpose of benefiting the Pacific cable for five years, is going to ruin the overland line in South Australia? We have in Western Australia a line to Broome. I am certain that for the convenience of the department in that State, the Deputy PostmasterGeneral will continue to send a considerable number of messages to Banjoewangie. The Deputy Postmaster-General of South Australia very likely will send all the messages he receives by the overland route to Port Darwin. When we have the Pacific cable, it is possible that the Deputy Postmasters-General of New South Wales and Victoria may find it convenient to send some of their telegrams over that route. I do not think it can be soberly stated that it is for the purpose of crushing other lines out of existence that we are asked to give this power to the Minister. For the proper working of the department, he requires the power to send these messages by whichever route is convenient, and the right to select the route should not be given to the customers. For these reasons I intend to support the attitude of the Minister. As regards sending a letter by whichever route we wish, I would point out that in the case of a letter, a manhas not an alternative as to whether it shall go by a private route or by a State route, and, further, the cost of the postage-stamp goes to one person - the Postmaster-General - in every case. In the case of cablegrams we pay on the one hand the Minister, and on the other a private company, and that, in my opinion, marks the distinction between a letter and a telegram in that respect.

Senator Lt Col CAMERON:
Tasmania

Senator DE LARGIE:
Western Australia

– There is a growing feeling in this Chamber and elsewhere that South Australia in every bargain made between that State and the Commonwealth is not going to be behindhand, but is going to get the best possible terms for herself. I do not blame South Australian senators for speaking on behalf of their State. It is their duty. But it is only reasonable to expect that they will recognise that there are other States beside South Australia. We have heard so much of the Northern Territory telegraph line and of other white elephants in which South Australia is interested, that really we may be pardoned for thinking that that State is almost on the verge of insolvency. It seems to me, however, that in respect of Commonwealth affairs South Australia is getting on remarkably well, and is still going strong. That State is going for something more than she has already got. We, however, have to consider the interests of the Commonwealth as a whole. The desire of the Postmaster-General is to make the Pacific cable a commercial success. We are all anxious to see that result achieved. If it is to be a success the PostmasterGeneral must have the right of controlling the telegraph service, and not leave to Others outside the opportunity of getting the best of the department, and making bargains to suit themselves. The key-note throughout the whole discussion on this Bill has been that the telegraph service should be a State monopoly. If it is not to be a State monopoly, how is it to be a commercial success? And. if it is not to be a commercial success we should be foolish to allow the Commonwealth to be robbed of revenue to which it is justly entitled. If we are not to have a Government monopoly, the revenue will certainly decrease very considerably. We hear a great deal about loyalty ; but, I contend, that it is the duty of the people to. be loyal to the interests of the Government, just as much as it is for them to talk of all this cheap loyalty in reference to the King, and that sort of nonsense. We have to be loyal to the Government and to the Constitution, and if we allow private individuals to make bargains, by which they will get the better qf the services of the Government, we shall not be true to the interests of the Commonwealth.

Senator MILLEN (New South Wales).The honorable senator, who has just resumed his seat, has made a statement which, I take to be an absolute declaration in favour of the establishment of a Government monopoly with regard to the projected cable. That is a definite statement which I can quite understand. It would have a great deal of force if there was no private cable in existence. As there is such a cable in existence, however, that declaration must mean that by some means or other the honorable senator proposes to prohibit business on privately-owned cables. I desire to ask the Postmaster-General a question. He stated a little while ago that a private cable company, having published rates equal to those fixed by the Government, might still in practice allow rebates. In that case he said it would be right to allow the Government to step in and exercise the power which the Bill gives the department.

Senator Drake:

– If we could send a message at either rate there would be no rebate given.

Senator MILLEN:

– If the owners of the private line proposed a public charge of two shillings and the State wanted three shillings a word, would the Postmaster-General still propose to compel private messages to be sent over the public line.

Senator DRAKE:

– Certainly not.

Senator MILLEN:

– Then why do the Government ask for this power ?

Senator Drake:

– We do not want the power to do that.

Senator MILLEN:

– The PostmasterGeneral says that he does not propose to force people to send messages by the public cable at rates higher than those that are charged for sending messages over the private line. Yet that is what the Bill would allow the department to do if this amendment were not passed. If the PostmasterGeneral does not mean to do that, I will ask him to say when he replies, what objection he has to the insertion of the proposed additional sub-clause.

Senator STEWART:
Queensland

Australia say that for that reason the Commonwealth should not have this right. I object to the statement that the Government will go out of their way to do an injury to any State unless they are prevented by some such amendment as has been proposed. The Government have been subsidizing the Eastern Extension Telegraph Company for some years past, and if they will ultimately lose by the South Australian line it is not likely that they will go out of their way to specially injure South Australia. I ask honorable senators from the various States if the Commonwealth Government are going to be so unfair as to absolutely injure their revenue and their prospects in that way. I think such a clause as this is absolutely necessary, because it is quite possible, and I believe it has been done, for privatecompaniestogivearebate on messages sent over their lines. They will do that kind of thing privately, and will make,perhaps, an arrangement for six or twelve months with some firm to send their messages at a certain rate.

Senator Playford:

– That is pure assumption on the honorable senator’s part.

Senator Sir Frederick Sargood:

– This will not prevent it.

Senator STANIFORTH SMITH:

Question - That the words proposed to be inserted be so inserted - put.

The committee divided -

Ayes … … … 9

Noes … … … 16

Majority … … 7

Question so resolved in the negative.

Clause agreedto.

Postponed clause 90 agreed to.

Amendment (by Senator Drake) proposed -

That the following new clause be inserted after clause 77 : -“ The Postmaster-General may on such conditions as he deems fit authorize any person to erect and maintain telegraph lines within the Commonwealth, and to use the same for all purposes ofand incidental to telegraphic communication.”

Senator Sir FREDERICK SARGOOD:
Victoria

– I think I gave notice of an amendment not as against the clause, but as to its position, I would suggest that it should be inserted as a sub-clause to clause 77, because otherwise it would conflict with the proviso we have agreed to.

Senator DRAKE:
Protectionist

– No. I have had these three clauses printed together in order that honorable senators may see exactly how they run. The new clause gives authority to any person to erect and maintain telegraph lines.

Amendment agreed to.

Senator Sir FREDERICK SARGOOD (Victoria). - I wish to insert a provision which was specially put in the Crimes Act of Victoria to meet what was found to be a want of power. Prior to the enactment of that provision, many documents perforce had been allowed to pass through the post - office, owing to the want of a definition of the word “indecent,” and two years ago the Parliament of this State passed the provision, which I’ have copied in order that the Postmaster-General may have an opportunity of deciding whether it is advisable to insert it in this Bill. If it is not inserted, I think it will be found that two other clauses we have passed will be practically inoperative. I move -

That the following new clause be inserted after clause 41 : - “If at any post-office there is received for transmission throughout the post any newspaper, packet, or parcel containingany picture or advertisement or any printed or written matter in the nature of an advertisement, which picture, advertisement or matter is of an indecent or obscene nature, the Postmaster-General or any Deputy Postmaster-General may refuse to transmit or deliver the same through the post, and may cause any such newspaper, packet, or parcel to be destroyed.”

Senator DRAKE:

– I have no objection to the substance of the amendment if the committee see fit to pass it. But as to the phraseology, what does the expression “ throughout the post “ mean? I

Senator Sir Frederick Sargood:

– I thought that the better plan would be to copy the section in the existing law. I am not wedded to the words.

Sanator DRAKE.- I do not like the phraseology at all.If I had the opportunity.’ I would recast the amendment, but I think we might omit the words “ throughout the post” and “through the post.”

Senator Sir Frederick Sargood:

Senator STEWART:

– I believe that was his name. He never saw the inside of a University and never received the slightest assistance from any qualified individual. Before I give my consent to this amendment I should like to have a definition of what is meant by “ decent “ and “ indecent.”

Senator PEARCE:
Western Australia

– I think we are only duplicating legislation in passing the proposed clause. In clause 41 we have made every provision that is necessary. That clause says -

The Postmaster-General or any Deputy PostmasterGeneral may at any time cause any postal article having anything profane, blasphemous, indecent, obscene, offensive, or libellous written or drawn on the outside thereof, or any obscene enclosure in any postal article to be destroyed.

Then the phrase “ postal article “ is defined as -

Including letters, post-cards -

I do not see how we could have anything either decent or indecent on the inside of a post-card ; it must be on the outside in that case. letters, cards, newspapers, pickets or parcels, and ali other articles transmissible by post, and includes a telegram when transmitted by post.

So that I think everything desired is already provided for in clause 41, and Senator Sir Frederick Sargood is only asking the committee to duplicate this clause by another one of a similar character ; because while the proposal before the committee provides a special provision for anything appearing on the outside of the document, it also provides for anything in the enclosure.

Senator Drake:

– Would an advertisement in a newspaper be an enclosure?

Senator PEARCE:

– Yes, because it appears in a postal article, and the term “postal article” is defined as including a newspaper. Then again the question arises - what is the outside of a newspaper? I take it that youcould very well- say that the side upon which the advertisements appeared was the outside of a newspaper. I do not think the clause is’ necessary.

Senator Sir WILLIAM ZEAL:
Victoria

– There is a good deal in what Senator Pearce has said. I would point out in addition that clause 27 deals very fully with this matter, and gives the Postmaster-General most extraordinary powers. As far as newspapers are concerned, there is no doubt whatever that the Postmaster-General has absolute and arbitrary powers to refuse to send by post any newspaper containing -

Seditious, blasphemous, indecent, or obscene matter, or which, by reason of the proportion of the advertisements to other matter therein, or for any other reason is not within the description aforesaid.

– There is bound to be an enclosure.

Senator MILLEN:

– It does not follow that it would be either “ written or drawn.” While we are considering this matter it would be better, rather than adopt Senator Sir Frederick Sargood’s proposal, to recommit clause 41 so as to make it read “ written drawn or printed.”

Senator Sir FREDERICK SARGOOD (Victoria). - It is true that to a large extent my proposal is covered by clauses 27 and 41. It will be noticed that clause 27 has been copied in part from section 4 of the Victorian Post-office Act. It was afterwards found that that provision did not cover the ground. Action was taken and the Full Court decided that it did not cover the cases contemplated. A clause similar to clause 41 was then introduced, but that was found not to cover the ground. Then the section I have submitted was passed as part of the Crimes Act, and subsequent to that a definition of the word “indecent” was put in the Crimes Act. It is not a definition such as I would care to read to the committee ; but’ if honorable senators would like to read it they can see what was considered necessary by the Full Court.

Senator Drake:

– It is also in the Queensland Indecent Advertisements Act.

Senator Sir FREDERICK SARGOOD:

– If the Postmaster-General can see his way to recommit clause 41, I shall be glad to withdraw this amendment.

Senator Drake:

– I would rather have it go in as a new clause.

– All these papers have been prevented by this inquisitorial law from coming into Victoria. Let us take the English Mechanic. What craftsman reads the advertisements in that journal 1 A man does not turn his attention to that particular part of the paper. He may do’ ‘so in some cases, but if a man takes the English Mechanic he does so in order to improve his knowledge of mechanics. The honorable senator, however, would deprive him of that privilege because some little advertisement to which he objects appears in. an obscure corner of the paper. I say that the interests of the majority ought to be considered rather than the interests of the minority. The clause which the honorable senator proposes to insert appears to me to be asking far too much power altogether;. It is inspired by the most prurient ideas. This sort of censorship is altogether urnworthy of the people of Australia. If these newspapers can be circulated in Great Britain, surely we should have no objection to their circulation here. It is adopting altogether a Pharasiacal attitude to say that they are so impure and contrary to our ideas of good morals that we cannot permit them to be circulated amongst us. I do not think we ought to take up the position of censors in this way. What is good enough to be circulated in Great Britain cannot be too bad to be circulated here. Their standard of morality at home is quite equal to ours as far as I have been able to gather, and I shall certainly oppose this attempt to create in our midst a kind of Russian censorship.

Senator PEARCE (Western Australia). - I intend to ‘ oppose the clause, because I consider we have sufficient safeguards in the Bill already. A definition of what is an indecent advertisement is to follow this proposal.

Senator Dobson:

– There is no reason why it should.

Senator PEARCE:

– Unless we have some definition we shall be met with the same difficulty as that which occurred in Victoria. Senator Sir Frederick Sargood has told us that in a certain case the Full Court would not give any decision until a definition had been inserted in the Act.

Senator Sir Frederick Sargood:

– I said, the prosecution broke down.

Senator PEARCE:

– If we adopt this clause with a view to inserting the proposed definition which has been circulated by Senator Sir Frederick Sargood we shall be doing something which is altogether too sweeping. I do not see any harm in some of the advertisements which are referred to. The diseases to which they relate undoubtedly exist, and what harm can there be in allowing the publication of advertisements which purport to announce a cure for them. I fail to see how they can have any immoral effect on the people who read them. If a person of a pure mind reads them is that man or woman likely, to be degraded by reason of that act. I hope we shall not be led away. This is puritanical legislation to an extreme degree, and it will not have the effect of raising the morals of the community one iota. It will simply add to the list of offences under the Crimes Act, and deter the circulation of papers which are a benefit to the community. I am familiar with Reynolds’ Newspaper and the English Mechanic, and I think it would be a distinct advantage if they were more fully read in Australia. If we’ are going to prevent such newspapers from* circulating in this country, we shall do more harm than by allowing these advertisements to be published.

SenatorDRAKE. - I should hesitate a long time before consenting to insert in the interpretation clause the definition which has been referred to. If Senator Sir Frederick Sargood, intends to follow this proposal-

Senator McGregor:

– The honorable senator said he could see no good in it without the definition.

Senator DRAKE:

– I think the honorable senator was referring to the Crimes Act, under which the case to which he alluded was brought. If it is desirable in any State to legislate against the publication of indecentadvertisements, that work should be left in the hands of the State.

Senator Major Gould:

– No prosecution could take place under this clause such as might be instituted under the Crimes Act.

Senator DRAKE:

– Thepostalauthorities, under this proposed clause, could refuse to transmit newspapers containing this objectionable matter. The words “ indecent and obscene” are well-known in connexion with our postal laws. I think that we should be going a little too far however if we endeavouredin this Postal Bill to legislate really in a matter which should be left to the State Parliaments.

Senator DE LARGIE:
Western Australia

Amendment agreed to.

Senator DRAKE:

– Before asking you to report the Bill with amendments, Mr. Chairman, I should like to say that I propose to move that the Bill be recommitted for the purpose of reconsidering certain clauses. I should be glad if honorable senators would take note of these particular clauses, because in some cases when we have had clauses under discussion. I have expressed my willingness to have them recommitted if necessary. Subsequently other parts of the Bill have been dealt with, and. the necessity for recommitting them has ceased to exist. The clauses I have noted down are these - Clauses 2, 5, 15, 16, 17, 19, 21, 27, 36, 68, 77, 78, 91, 92, 95, 103, and 142. I have circulated the amendments I propose to move on recommittal.

Bill reported, with amendments.

Senator DRAKE:

-In moving that the Bill be recommitted-

The PRESIDENT:

-Will the honorable senator look at Standing Order 304? It says -

At the close of the proceedingsof a committee of the whole; House on a Bill, the Chairman shall report the Bill forthwith to the House, and if amendments have been made thereto -

And theyhave been made in this case- a time shall be appointed for taking the report into consideration and moving its adoption ; and the Bill, as reported, shall in the meantime be printed.

Motion (by Senator Drake) agreed to -

That the considerationof the report be an order of the day for to-morrow.

page 2599

SERVICE AND EXECUTION OF PROCESS BILL

Senator O’CONNOR:
President of the Executive Council - New SouthWales · Vice · Protectionist

– I do not know whether I shall be in order in moving now that the Bill be recommitted, or whether that will have to be done by way of amendment.

The PRESIDENT:

– The honorable sena tor may move it now.

Senator O’CONNOR:

– I move-

That the Bill be recommitted with a view to the reconsideration of clause 10 and the insertion of a new clause. .

The PRESIDENT:

– I point out to honorable senators that if that motion is carried they cannot consider the rest of the Bill.

Senator O’CONNOR:

– It is only for that purpose that I desire its recommittal.

Question resolved in the affirmative.

In Committee:

Clause 10 -

When no appearance is entered by adefendant to a writ of summons served on him under this Act, if it is made to appear to the court from which the writ was issued or a Judge thereof - and if it is also made to appear to such court or Judge that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge and that the defendant wilfully neglects to appear to the writ, or is living out of such State or part in order to defeat or delay his creditors or deprive the plaintiff of the relief to which he is entitled (in which case the writ shall be deemed to have been served on the defendant) such court or Judge may, on the application of the plaintiff, order from time to time that the plaintiff shall be at liberty to proceed in the suit in such manner and subject to such conditions as such court or Judge may deem fit, and thereupon the plaintiff may proceed in the suit against such defendant accordingly.
Any such order may be rescinded or set asideor amended on the application of the defendant.

Senator O’CONNOR:
Protectionist

– It becomes necessary to make an amendment in this clause for the sake of bringing out the meaning more clearly, and also for the purpose of making more clear the meaning of the words “ the defendant neglects to appear to the writ.” The difficulty; that arises is this”. It appears that; the almost universal practice of the justices is to regard the failure to appear when a man has beenserved with a process, or a process has come to his knowledge, as being a wilful neglect. That is generally the law, but I understand that there have been some decisions in Victoria which rather alter the effect of that, and make it really very doubtful how far one has got to go into the mind of the defendant to make it appear that his failure to appear has been wilful. We have, of course, to avoid these little legal conundrums wherever we can, and I propose to make an amendment here which will make it perfectly clear that when a man has been served with a summons, or when the summons has been brought to his notice, that will be taken as sufficient to consider subsequent failure to appear as wilful. That will save all the legal difficulty, and the other amendment I would propose in the clause is simply a readjustment. I move -

That the clause be amended by the omission of the following words, lines 5 to 10 - “And if it is also made to appear to such court or Judge that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof on the defendant, and that it came to his knowledge and that the defendant wilfully neglects.”

I shall afterwards move for the insertion in lieu thereof of the following words : -

And if it is also made to appear to such court or Judge -

that the writ was personally served on the defendant ; or

that reasonable efforts were made to effect personal service thereof on the defendant, and that it came to his knowledge (in which case it shall be deemed to have been served on him), and that he neglects.

I propose then to omit the words in lines 14 and 15 -

In which case the writ shall be deemed to have been served on the defendant.

Senator Sir JOHN DOWNER:
South Australia

– I should much prefer that the word “ wilfully “ should be left in. This is a very extreme power that is given in this clause. We are going to provide that a man shall be bound by a process that he has not been served with. Brown, Jones, or Robinson may have told him of it, but hemay have disbelieved them, and we leave it to a J udge or to a court to say that he ought to have believed them, and should have looked after it. That is bad enough on the face of it, and though we do find it absolutely necessary to make provision that if the process comes to his knowledge he shall be bound to take notice of it, the least we can do is to say correspondingly that if he does not take notice of it he shall be shown to have wilfully neglected to do so, which I understand to mean that he knew it was genuine, and wilfully availed himself of an opportunity of evading it. I think the word “ wilfully “ ought to stop in the clause. I think the words -

Inwhich case the writ shall have been deemed to have been served on the defendant are necessary to fix the date on which the process came to his knowledge, in order that the time allowed for an appearance to it may be estimated. .

Senator HARNEY:

– Then the honorable and learned senator will also see that, while really it puts the person to whom knowledge is brought in the same position as the person served, if we allow the word “ wilfully “ to remain, we open the door for the greatest delays and the greatest abuse. It is impossible for us to get into a man’s mind, and, if a person can go to the court, and the Judge says - “ I am perfectly satisfied that this was brought to your knowledge,” is he to be allowed to answer “ Oh, yes ! But I did not wilfully refuse to enter ah appearance; I forgot all about it,” or “I really did not understand”?

Senator Sir John Downer:

– Either it is served or it is not served. I agree with the honorable and learned member.

Amendment agreed to.

Senator O’CONNOR:

– I now move-

That the following words be inserted in . lieu of the words omitted: - “and if it is also made to appear to such Court or Judge -

that the writ was personally served on the defendant ; or
that reasonable efforts were made to effect personal service thereof on the defendant and that it caine to his knowledge (in which case it shall be deemed to have been served on him), and that he neglects.”

I wish to answer something which the honorable and learned senator said about the necessity for fixing a day on which the writ shall be deemed to have been served on the person. I would suggest that it would be very much better not to tie the hands of the Judge, because the whole thing goes before a Judge, and if these difficult matters contained in the early part of the clause have been proved, and if the defendant wilfully neglects to appear to the writ, or is living out of the State, in order to defeat or delaya creditor - such court or Judge may, on the application of the plaintiff, direct from time to time that the plaintiff shall be at liberty to proceed in the suit in Such manner, and subject to such,conditionsas such court or Judge may deem fit, and thereupon the plaintiff may proceed in the suit against such defendant accordingly.

The first starting point is at what date-shall it be taken that the defendant was served. The Judge will decide that, because he will be able to say that on such and such a date the first step must be taken, that the declaration must be filed, and that so many days after that a judgment may be filed. The matter will thus be left entirely to the Judge. I would suggest to my honorable and learned friend that nothing would be gained by laying down a hardandfast rule that on the date on which the writ comes to the man’s knowledge it shall be deemed to have been served on him. There is no necessity for it, and one can easily understand cases where it might be a hardship on the defendant to have the proceedings taken from that date. We get all we want by leaving it to the Judge to fix the procedure after hearing all the circumstances.

Senator Sir JOHN DOWNER (South Australia). - The view I take is that people are entitled to their rights quite apart from the view which any Judge takes. An ordinary writ is served on a man, and there is a certain number of days fixed, as a matter of course, in which he has to appear. In this instance, the Minister wants to attribute service where there is none, and I agree entirely with the argument of Senator Harney, and I admit that my off-handed opinion was not as accurate as it might have been ; but now that we have the clause, why should we put the man to whom we attribute service in possibly a worse position than a man on whom we have effected service ?

Senator Clemons:

– Not necessarily.

Senator O’connor:

– Why in a worse position?

Senator Dobson:

– In every case the Judge would fix the date when it came to his knowledge.

Senator Sir JOHN DOWNER:

– But then it ought to say so.

Senator Dobson:

– The J udge will say so in the order to proceed.

Senator Sir JOHN DOWNER:

– That is assuming that the Judge will make law when we have none. I believe the Judge will do right, but he has no choice as to the number of days within which a defendant has to appear after service. That is fixed by law.

Senator O’Connor:

– Not at all. It says - “ The Judge may on any terms he thinks fit so the whole procedure is open to him.

Senator Harney:

– “Shall be at liberty to proceed in such manner as the court directs.”

Senator Sir JOHN DOWNER:

– I only submit that we ought to provide that service by notice shall be deemed to be personal service on the day on which the defendant receives notice. I am perfectly sure that the J udge will administer the provision in that way. The only question is whether when we fix times in respect to things we can deal with and we are starting a new procedure, by which we are attributing service where there has been none, we should not say that then the service shall be deemed to have been effected on the day on which the defendant has notice. That is all I am suggesting. I have sufficient confidence in any tribunal to be sure that it will act properly. At the same time I think it ought to be in the Act.

Senator HARNEY (Western Australia). - A slight difficulty might arise if we substituted for the bringing to his knowledge that it shall be deemed to have been served on that day. For all practical purposes they are convertible terms. I think in the expression the notice “ came to his knowledge” we have reference to a separate series of occurrences. The J udge may say - “ I am not prepared to say that he got notice on Thursday, Friday, or Saturday, but there is evidence before me that he heard something on Thursday; and was told something on Friday, and I am satisfied that he got notice.” It really ought to be left to the Judge to say under these circumstances - “ I will fix a time.”

Senator Sir John Downer:

– Butwhen the notice was received is a complicated question.

Senator HARNEY:

– As I understand my honorable and learned friend’s proposition, really for practical purposes it is the same as mine, but his proposition might work out in this way, that the Act of Parliament would deem service to be on the day on which the party had notice. Therefore the Judge might be forced to say - “ Now I may find as a matter of fact that he had notice on Thursday,” whereas in point of fact he might not think that the evidence justified him in going that far. He might say - “I am morally certain that he had notice on Thursday, and I am more morally certain now when I see what occurred on Friday ; but from what occurred on Saturday and Sunday I am certain that he knew,” although he would not be willing to fix the day to which all the evidence points as the day on which the defendant got notice.

Senator Sir JOHN DOWNER (South Australia). - Notice is knowledge. It is not a casual remark from one man to another that is intended. No one has notice of a thing unless he knows all about it. Suppose he was told something about it on Wednesday, more about it on Thursday, and the rest of it on Friday, so that by adding together the bits of information he got the whole information on Friday, then he would get notice on Friday. I still retain my opinion.

Senator STEWART:
Queensland

– Perhaps it is rather bold of me to enter into a legal discussion such as this, but the question appears to me to be somewhat important. I agree very much with the remarks of Senator Downer. The clause as it stood originally ought to have been sufficient. It appears to me that this amendment is asking for more power than should be given. There are only very rare occasions when personal service would not be possible ; and any one can easily understand how easy it might be for a document that was left at a man’s residence in his absence to be mislaid or destroyed. Such things do happen. I understand that it is proposed to excise the word “ wilfully.”

Senator O’Connor:

– We have done that.

Senator STEWART:

– That is the point I objected to.

Senator Harney:

– These legal points move very quickly.

Senator STEWART:

– They have moved quickly on this occasion, but sometimes they do not hurry so much. There are no fees attached to this provision, it seems.

Amendment agreed to.

Amendment (by Senator O’Connor) agreed to -

That the following words, lines 14 and 15, be omitted: - “in which case the writ shall be deemed to have been served on the defendant.”

Clause, as amended, agreed to.

Senator O’CONNOR:

– I move-

That the following new clause be inserted to follow clause 23 : - “24. (1) When-

Any certificate of a judgment is registered in any court ; or
Any execution is issued or other proceedings are taken in any court upon any such certificate ; or
Satisfaction of the judgment either in whole or in part is entered in any court upon any such certificate ; the Registrar or other proper officer of that court shall forthwith notify the same in writing under the seal of the court to the Registrar or other proper officer of the court in which the judgment was given or mode. “ (2) When any judgment whereof a certificate has been registered in any court has been satisfied in whole or in part, the Registrar or other proper officer of the court in which the judgment was given or made shall forthwith, upon such satisfaction being made or notified as the case may be, enter such satisfaction upon the judgment and notify such satisfaction in writing under the seal of the court to the Registrar or other proper officer of every other court in which a certificate of the judgment has been registered, and such satisfaction shall thereupon be entered upon every such certificate.”

The necessity for this clause has appeared to me from the suggestion made by my honorable and learned friend, Senator Clemons, that there was some danger that in cases where the certificate of judgment had been filed in four or five different courts, it might be satisfied in one of those courts and yet remain on the records of the other courts as a blot on the defendant’s title, or against his credit. Therefore it seems to me to be reasonable that there should be some way by which, when the judgment is satisfied either in whole or in part in any one of these courts where the certificate is filed, by some automatic process that knowledge may be conveyed to every other court, so that the record may be properly kept up where there has been a payment, or kept up pro tanto where there has been a part payment. The effect of the new clause will be that when a man takes out a certificate of a judgment, he may file it in any court. Immediately he files it in a court of one of the States, the Registrar of that court will notify to the court out of which the judgment has issued that it has been filed there, so that the home court - if I may so describe it - will always have a complete record of every place where these certificates have been filed. When any dealing takes place upon that judgment, it will be communicated to the home court, which will communicate it to the others. There will be regulations to carry out this provision, and I have no doubt they will effect the purpose we have in view - that no man shall suffer by reason of these certificates being filed in different courts when he has satisfied the judgment.

Amendment agreed to.

Bill reported with further amendments.

page 2604

PROPERTY FOR PUBLIC PURPOSES ACQUISITION BILL

In Committee (consideration resumed from 12th July, vide page 2497) :

Clause 1 2 -

Every person or State claiming compensation in respect of any land so acquired, or work or other matter done under the authority of this Act, shall within 90 days from the publication of such notification, or within such further time as a Justice of the High Court upon the application and at the cost of the claimant may either before or after the expiration of such 90 days appoint in that behalf, serve a notice in writing upon the Minister, and a like notice upon the Attorney-General, which notice shall set forth the nature of the estate, interest, or title of the claimant in such land, together with an abstract of title, and if the claimant claims in respect of damage the nature of the damage which the claimant has sustained or will sustain by reason of such acquisition or work or matter, together with full particulars of such damage, and such notice shall be in such form as may be prescribed.

Upon which Senator Harney had moved by way of amendment -

That the word “ publication “ be omitted with a view to insert the word “ service.”

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– It will be within the recollection of the committee that when the discussion which took place on clause 12 was adjourned last week, an amendment by Senator Harney was under consideration. The proposal was that the word “ publication “ should be struck out and the word “ service “ substituted. The point of the amendment was that the date from which the man’s claim should run should be the date of the service of the notification on him, and not the date of the notification in the Government Gazette. That amendment alone would have been of no use, but it is intended by Senator Harney to move another amendment upon a previous clause, the effect of it being that it shall be obligatory on the Government to serve the notification upon every person interested in the land taken. As I pointed out at the time, the difficulty in regard to that method of procedure is this : The way we have dealt with the matter in this clause, is that we have followed the practice which has been in vogue in New South Wales for many years. I understand that it has also been the practice in Tasmania. That is to say, where it is necessary to take land for public purposes, we notify by the Government Gazette that. the land has been resumed, and on that notification the land becomes the property of the Crown. Thenwithin a certain number of days after the notification, any one claiming an interest in the land must make his claim ; otherwise the claim is not received. There is no obligation in New South Wales or in Tasmania to serve a notice ; and notice has not been served where land has been taken in New South Wales under such a provision. In moving his amendment, Senator Harney admitted that it was quite right that when a notification was published the land should immediately pass to the Government. His contention was, however, that the owner of the land should get some kind of notification that the land had been taken so that he might prepare himself to make his claim. My difficulty in acceding to that amendment was that if we make it necessary to search out every person who is interested in the land, it may be a very difficult matter. It may take some considerable time. In the case of intestate estates, it is very often an exceedingly difficult matter to find out which are thepersons interested as a matter of law, and, consequently to find out where they are and where they are to be served.

Senator Sir William Zeal:

– Post the notice on the land.

Senator O’CONNOR:

– I am coming to that point in a moment. If we have to notify each person interested there is a great deal of difficulty in getting the question of compensation settled. There is also the further difficulty about it, that if we start a claim for compensation from the date when the man is served, we shall have one party interested in the estate served on one day, another person served the next week, and another the next month ; and so we shall have the time for settling these claims extended over a very long period. By the process which is adopted in this Bill, and which has been followed in New South Wales and Tasmania, we fix one date - the date of notification in the Gazette - as the date when the claims commence to run ; so that they are all ripe on the one date. We bring thewhole question of the value of the land before the court, and the amountof compensation to be given is settled at the one trial ; and then the different parties interested come in and get their different shares. I propose to make an amendment, which, I think, is a fair compromise between the view put forward by my honorable and learned friend, Senator Harney, and the view I have taken. I propose to make it obligatory upon the Government to serve the notice, if it can be served, upon the owner of the land immediately after the notification in theGazette. If the owner cannot be served, it is to be served at his last known place of residence, or by registered letter. If the owner cannot be found after reasonable diligence, the notice is to be posted on the land, as has been done in Victoria. That having been done, I propose in the next sub-clause to make the date of claim still date from the notification ; but I propose to give the owner another month. That is to say, instead of making it 90 days after the notification in the Gazette, I propose to make it 120 days within which the person whose land has been taken, or the person whose interest in the land is affected, has to make his claim. So that the net result of the proposed amendment is that we oblige the Government to serve the notice upon the owner if he can be found ; or, if he cannot be found, it is to be left upon the land ; and then, whether the’ owner can be found or not, or is served or not, within 120 days after the notification in the Gazette, the tune begins to run after which the claim must be made. It seems to me that this is fair to the owner of the land in the first place, because it makes it the duty of tha Government to serve him with notice if he can be found. No doubt he will be served if he can be found. When he cannot be found, the notice will be posted up on the land. In either case it gives a very long period - 120 days after the notification in the Gazette - from which to date the making of the claim for compensation. If the owner has been served, 120 days is ample, and I think it also gives an abundance of time in which to find him. If he cannot be found ; if he is not accessible or available, it cannot matter much to him when the claim for compensation is to be sent in. In either case it will avoid the complication and delay attendant on having all these claims coming in at different times. It fixes one day for commencing the work, and enables that amount of despatch to be carried out in arriving at the question of compensation which we are anxious to obtain. At the same time I do not think that any injustice is done to the owner of the land. I ask your ruling, Mr. Chairman, if I may do so, as to the best way of putting this amendment. I propose to put it as a -new clause before clause 12.

The CHAIRMAN:

– The honorable and learned member can do that when we have finished the Bill.

Senator O’CONNOR:

– As I cannot do it in that way before we have finished with the Bill, I prefer to add the words at the beginning of the clause, and then make a sub-clause of what is now clause 12. In order to enable me to do that it will be necessary for Senator Harney to withdraw his amendment.

Amendment, by leave, withdrawn.

Amendment (by Senator O’Connor) proposed -

That before the word -“Every,” line 1, the following words be inserted : - “(1) Immediately after the publication in the Gazette of a notification that any land has been acquired under this Act the Minister shall cause a copy of the notification to be served upon the owners of the land resident within the Commonwealth, or such of them as can with reasonable diligence be ascertained, either personally oily registered letter posted to their last-known place of abode.” “ (2) If any owner is absent from the Commonwealth, or cannot, after diligent inquiry be found, a copy of the notification shall be left with the occupier of the land, or, if there is no occupier, shall be affixed upon some conspicuous part of the land.”

Senator HARNEY:
Western Australia

– I withdrew my amendment because the Vice-President of the Executive Council has really met me in the objection that I urged. The only difference between what I required and what the honorable and learned senator gives is that the interested parties are not to be served. Ample provision is made, however, for bringing the matter home to the knowledge of the persons most concerned, so that I think my requirement may be dispensed with. May 1 point out to Senator O’Connor, as he means this to exhaust two methods of bringing home to the knowledge of the owners the publication of the notice, that he ought to add after the word “be,” line 4,, in sub-clause (2), the words, “served upon his registered attorney, or if there be none then.” We know that persons leaving the country do register their attorneys, and therefore the)- could be served with notice.

Senator Playford:

– The attorney would know where his principal was.

Senator HARNEY:

– It would be quite sufficient to serve the attorney.

Senator O’Connor:

– Pro vision for the registration of attorneys is not made in all the States.

Senator HARNEY:

– There is such a, provision in Western Australia. ‘ However, I will not press the proposal, because, after all, it comes within the term “ diligent inquiry.” There would not be a diligentinquiry if there was a registered attorney, and inquiry failed to disclose him.

Senator CLEMONS:
Tasmania

– I am glad that Senator Harney has withdrawn his amendment, because the clause as proposed to be amended by Senator O’Connor amply meets all that he wants. SenatorO’Connor, however, might possibly make his amendment . clearer in sub-clause (2). He might make it more evident that a copy of this notification must be left with the occupier,, if he inserted after the word “found” the words “or if such registered letter shall not have been delivered.” Sub-clause (1) contemplates discovery of the owner in two ways - personally or by registered letter. I do not think that in the second clause the use of the word “found “ completely includes personal discovery, or such discovery as is implied in the delivery and receipt of a registered letter. I have no desire to move this amendment, but the insertion of the words I have mentioned would more completely cover the meaning of sub-clause (1).

Senator Sir WILLIAM ZEAL:
Victoria

– So far as the experience of Victoria is concerned, the amendment which the VicePresident of the Executive Council has submitted, will be most ample and effective. There are very few allotments of land on a line of railway or in a district the owners of which are not known. Where they -are not known, the allotments are generally- small and insignificant. Let us take a case where land has been cut up into a number of small allotments. The greater number of the owners of these allotments are identifiable and servable with notice. The’ municipal council makes diligent inquiry, and if after that exhaustive inquiry it cannot find the owner of a piece of land, the notice is placed upon it, and that is treated by thecourt as if notice had been served on the man himself. The municipal council can then levy upon the land, and actually lease it for a term of years until the rates upon ithave been paid. That is a commonsenseway of dealing with the difficulty. In Victoria we have had much experience in the cutting up of land, and I can assure Senator Clemons that this system has proved most efficacious.

Senator Clemons:

– I quite agree with the honorable senator.

Senator DOBSON:
Tasmania

– Senate. O’Connor has met very fairly the objection taken by Senator Harney. I am almost inclined to think he has gone too far in giving 120 days notice. The honorable and learned senator might have simplified the work of the Government by having a more comprehensive definition of the word “owner.’ Senator O’Connor’s proposal is open to what he pointed out last week was the objection to Senator Harney’s proposal. He has put upon the Government the making of the inquiry as to who and where the owner is. As Ave have a municipal roll, and as most of the States where a land tax is levied have a national roll, the Government would be perfectly right in providing that the “owner” shall be the person named in the municipal or national roll. It would thus avoid the necessity of making inquiries. It is hardly fair to cast upon the Minister, who is to administer this Act, the duty of inquiring all over the place for the owner of a piece of land.

Senator Clemons:

– That is covered by the term “ reasonable diligence.”

Senator DOBSON:

– Yes. But when we have legal documents upon which properties are valued, and which are used as a guide for taxation purposes, why should the Government have to look outside them.

Senator Millen:

– But what would happen where the owner was not named in these rolls 1

Senator DOBSON:

– Then this would come in.

Senator O’Connor:

– There might be a change of ownership after the rolls had been compiled.

Senator PLAYFORD:
South Australia

– I think the Vice-President of the Executive Council has very fairly met the objection raised by Senator Harney. The objection was that the owner of the land was not bound to receive the notice under the clause as it stood if that notice was only published in the Government Gazette. Senator O’Connor argued that that objection would only apply to very few cases, but we do not want to do an injustice under any circumstances to any individual. I think the honorable and learned gentleman has met us in every way. He has apparently taken a clause from the present Victorian Act, which is also the law in South Australia, and has worked exceedingly well there. Apparently, according to Senator Sir William Zeal, it has worked equally well in Victoria. The honorable and learned gentleman has gone quite as far as is necessary in providing for the service of notice onthe owners of land. When I argued the question last week I did not intend to imply that the Government should give notice to any one that might have some claim in an estate. All that I asked was that as far as possible notice should be given to the owner. With reference to Senator Clemons’ proposal I think it is already covered by the words of the clause. Surely it is part of the diligent inquiry. 0

Senator Harney:

– It is only to balance the first sub-clause. Really, it is only grammatical.

Senator PLAYFORD:

– I do not see that there is anything grammatical involved in it. I think -we have been met in every possible way, and I do not see any necessity for making a further alteration.

Senator O’CONNOR:

– I would point out to Senator Clemons that really there is no danger of any ‘ difficulty or injustice arising in the direction he has indicated,, because in the first sub-clause, it is provided that the owner must be served with notice, either personally or by registered letter. If he cannot with reasonable diligence be found then a registered letter will be posted to, him. I presume that a registered letter would not be posted to him unless he was known. Then it appears to me that that being so sub-clause (2) comes in.

Senator Harney:

– The question really is as to the meaning of the word “ found,” in, sub-clause (2).

– Precisely, and in that case a copy of the notification would be posted on the land. When we do that we have completely proved that he cannot be foundby either of the means suggested in sub-clause (1).

Senator HARNEY (Western Australia). - What I should like to point out is that the amendment suggested by Senator Clemons is really in favour of the Government and of easy administration. Honorable senators will see at once that sub-clause (1) provides that the owner is to be notified by personal service or by registered letter. The second sub-clause deals with cases where that notification cannot be effective. It is only to the ease of the department to exclude the two means by which we provide for the notification before we allow to be done what is provided for in subclause (2).

Senator Playford:

– “ Cannot be found “ covers it.

Senator HARNEY:

– With all respect to Senator Playford, I do not think that he quite follows me. Really it is a matter only of grammatical construction. What it is wished to insert in the clause is that if the owner is absent from the Commonwealth, or cannot, after diligent inquiry, be found- -

Senator Playford:

– There is the provision for the registered letter.

Senator Clemons:

– Until it had been shown that it had been received, we would not know whether that inquiry was worth anything.

Senator HARNEY:

– The sub-clause says -

If any owner is absentfrom the Commonwealth, or cannot, after diligent inquiry, be found, and what is referred to there is the methods of finding provided for in the first subclause.

Senator O’CONNOR:

– I do not think there will really be very much difficulty in serving any of them.

Clause, as amended, agreed to.

Clause 13-

Within 60 days after the receipt of every such notice of claim, by the Attorney-General he shall forward the same, together with his report thereon, to the Minister, who shall thereupon (unless no prima facie case for compensation has been disclosed) cause a valuation of the land or of the estate or interest of the claimant therein, and, if the claimant claims in respect of damage, of the amount . of such damage, to be made in accordance with the provisions of this Act, and shall inform the claimant as soon as practicable of the amount of such valuation by notice in such form as may be prescribed.

Senator HARNEY:
Western Australia

– Shortly, this clause provides that the Attorney-General shall forward a report to the Minister ; the Minister shall thereupon consider the case, and if he considers that no prima facie case has been made out there is an end to the matter, and it is only where he considers that a prima facie case has been made out that there is a valuation if the parties do not agree. The necessity for the amendment I intend to move is shown in clause 14. Honorable senators will see that the effect of the two clauses is that the Minister shall have it in his power to say whether a prima facie case has been made out; if he says that there has been no prima facie case made out it goes to arbitration, then compensation is sought to be fixed, and if the parties cannot agree an action lies. So, therefore, whether a person can ultimately vindicate his right is dependent entirely on the will of the Minister, because the Minister may say, “ I consider that no primâ facie case for compensation has been made out,” and if he does there is no right o action in the person. Clearly, that is, I think, a mistake in the drafting. It could never have been intended that the mere opinion of the Minister as to whether the persons had any right to compensation was to end the matter. I move -

That the words “ unless no primâ facie case for compensation has been disclosed,” lines 3 and 4, be omitted, with a view to insert in lieu thereof the words : -

If no primâ facie case for compensation has been disclosed, notify the claimant that his right to any compensation is disputed.

If a primâ facie case for compensation has been disclosed.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 14 -

If, within 90 days after the service of notice of claim, the claimant and the Minister do not agree as to the amount of compensation, the claimant may institute proceedings in the High Court in the form of an action for compensation against the Attorney-General as nominal defendant on behalf of the Commonwealth.

Provided that with the consent in writing of the Attorney-General and the claimant, any such action may be so instituted at any time (to be mentioned in such consent) before the expiration of 90 days from service of the notice of the claim for compensation, but not within 14 days from service of the notice of valuation on such claimant.

Senator HARNEY:
Western Australia

– I propose to insert at the very beginning of the clause the words -

If the Minister notifies claimant that his right to any compensation is disputed, or

The effect of the amendment is that, the right of action is in both cases.

Senator O’Connor:

– The only objection I see to the amendment is that the time is unlimited within which the action may be brought.

Senator HARNEY:

– I think there ought to be a limitation. Perhaps it will do if it is worded in this way -

If within 90 days after the Minister notifies the claimant that his right to any compensation is disputed, or if after the service of notice of claim the claimant and the Minister do not agree.

Senator MILLEN (New South Wales).Clause 14 provides that within 90 days a certain action has to be taken, and the previous clause swallows up 60 days of that period, leaving only a month for the

Government and the claimant to come to terms. That is rather too short a period in which to insist that an agreement be arrived at. With a complicated property, and with, perhaps, several joint owners to consult, I can understand that a month might be too short a time within which to permit of an agreement being arrived at. If an agreement can be arrived at within a month so much the better, but is it well to tie the thing down in that way?

Senator Harney:

– This is the number of days used in the English Act.

Senator MILLEN:

– There can be no advantage in saying that an agreement must be arrived at within that time, and cases might arise where there would be considerable hardship in forcing people to refuse terms which they might have accepted if a little more time had been allowed for consideration.

Senator HARNEY (Western Australia). - If we are to give two months within which to come to an agreement in clause 14, the 90 days should be made 120days.

Senator O’Connor:

– Give another month.

Senator HARNEY:

– The way in which I suggested my amendment would be scarcely fair, because it would enable the person to bring his action where there was a dispute only at the expiration of two months, and it would still give a person four months to bring an action where the Minister notified that he had no claim. I think the clause ought to read in this way-

If within 60 days after the Minister has notified to the claimant that he has no right to any compensation, or within1 20 days after the service of the notice of claim.

We must make the periods differ, because otherwise they will be too long in one case and too short in the other.

Senator O’CONNOR:
Protectionist

- Senator Harney will see that in clause 14 there is nothing to compel the claimant to institute the proceedings within the 90 days. He cannot institute them until after the expiration of 90 days. If within that time the claimant and the Minister do not agree as to the amount of compensation, the claimant may then institute proceedings; but, suppose that period has expired, he may then delay his proceedings as long as he likes.

Senator Millen:

– Without forfeiting the right of action ?

Senator O’CONNOR:

– The 90 days do not refer to the institution of proceedings. These words have passed right through from 1845.

Senator HARNEY (Western Australia). - It has been suggested to me that it would be more clear if the period of 90 days were repeated. I, therefore, move -

That before the word “ if,” line 1, the following words be inserted : - “If within 90 days after the Minister has notified the claimant that his right to any compensation is disputed or.”

Amendment agreed to.

Clause, as amended, agreed to.

Clause 15 (Justice to determine compensation).

Senator Sir FREDERICK SARGOOD:
Victoria

-I notice that in this clause and several succeeding ones the word “ justice “ is used. Would it not be well to make it perfectly clear that a justice of the High Court is referred to?

Senator O’Connor:

– Clause 14 provides that it is in the High Court that the proceedings are to be instituted, and the words “ a justice “ in this clause refer to a justice of that Court.

Clause agreed to.

Clause 16-

If the judgment in any such action is for a sum equal to or less than the amount of the valuation notified to the claimant, the claimant shall pay the costs of the action, but if for a greater sum, the Commonwealth shall pay such costs.
The justice before whom the action is tried shall in no case have power to direct a reference to arbitration, except by consent of the parties. ‘
Either party to the action may move for. a new trial in accordance with the practice of the High Court.

Senator HARNEY:
Western Australia

-I move -

That after the word “sum,” line 5, the words “or if for any sum where the right to any compensation is disputed “ be inserted.

This amendment is consequential on what we have done. The clause only provides for the payment of costs in reference to the’ class of actions that were provided for, namely, those where there was a dispute. It makes no reference to a class of actions which are now included, namely, those in which the Minister comes to the conclusion that there is no primâ facie case.

Amendment agreed to.

SenatorHARNEY (Western Australia). - The clause only makes provision for a trial when the courts have to deal with the amount of compensation assessed, but now that they have to deal with the question as to whether a person has any right at all, they must have power to say at once whether a person is to be allowed to go on again.

Senator O’Connor:

– I do not think it is absolutely necessary.

Senator HARNEY:

– It is not absolutely necessary except that if weput in the words “ set aside “ it is open for the Appeal Court to say - “ This person has no right at all, and it is no use sending it back.” If we leave in the words “ new trial “ it will be open for the court to say - “ We shall grant a new trial.” I move -

That after the word “trial,” in sub-clause (3), the words “or to set aside the finding” be inserted.

Senator O’Connor:

Senator DOBSON:

– It appears to me to be a new trial before a Judge sitting without a jury. After the evidence has been heard by a skilled Judge sitting with out a jury it is a wrong thing to throw doubt upon this tribunal. It is all a matter of opinion. The land-owner will bring before the Judge the best evidence he can produce that his land is worth so much more than the Government is willing to pay for it, whilst the Commonwealth will bring forward the best evidence it can get to show that the land is not worth so much. And when, say £1,000 is awarded, what is the use of having a new trial because the owner thinks he should receive £1,200 ? It seems to me that the provision is not consistent with the rest of the Bill.

Senator O’CONNOR:
Protectionist

– The honorable and learned member will see that the provision is that the owner may move for a new trial in accordance with the practice of the High Court. The practice in all countries within the British dominions is that where there has been a finding upon the facts the

Full Court never disturbs the decision unless the verdict is demonstrably wrong - unless it is a verdict that no reasonable person could have been expected to find. It is only in such cases that a finding on facts is disturbed. Surely in the great bulk of cases the. finding on the facts will not be such as “no. reasonable man will find ; and in such cases the Full Court would not order a new trial.

Senator Dobson:

– Only in the case of a justice being in the wrong ?

Senator O’CONNOR:

– Yes. Suppose there were a case in which a justice had given a certain decision that no reasonable man ought to have come to. Why should not that be upset ? The bulk of cases will be cases where questions of law arise. They may arise in a variety of ways - through evidence having been wrongly admitted, or the principle of assessment having been wrong. It may be difficult to decide on what principle the assessment should be made. Surely the claimant should go to the highest tribunal to settle such a question of law?

Senator Dobson:

– I think the honorable and learned senator is right there. On a question of amount the Minister says that the Full Court would not order a new trial ?

Senator O’CONNOR:

– No. I say that if it is a question of fact only the Full Court would never interfere, whether as to the amount or the basis of the calculation unless there was something demonstrably wrong about it ; but if the amount depended upon some wrong principle of assessment the court would, and ought to, interfere. By leaving the words of the clause as they are, according to the practice of the High Court, I think the honorable and learned senator will find that the court will only interfere where there is a question of law involved, or where the facts have been so dealt with that no reasonable man could come to the decision arrived at. With regard to the question of costs, this clause is advisedly drafted in its present shape following a great number of similar Acts. For this reason : there ought not to be any encouragement to bring actions, and there should be every compulsion reasonably exerted to make people come to an agreement. A man who takes an action against the Crown ought to know, and the Crown ought to know if it disputes a claim against a land-owner, that the costs will be against the party who has improperly made the claim, or who ought not to have resisted the claim. The clause makes the parties do their best to come to a settlement.

Senator Dobson:

– My suggestion does that.

Senator O’CONNOR:

– No ; the honorable and learned senator’s suggestion would put the claimant or the Government - whoever was in the wrong - in the position of being able to resist a claim properly made, knowing that they would escape costs in that way. ‘ It is very much better . to have a provision which will prevent people disputing claims or making them when there is no ground for them, whether the party doing so be the land-owner or the Commonwealth Government. We all know that in a great many of these cases it is a matter of “ heads I win and tails you lose.” A man may enter into long litigation with the Commonwealth, and when the end of it is reached he may not be able to pay any costs at all. I want to discourage people from bringing actions when there is no real ground for them. On the other hand, the clause puts an obligation upon the Commonwealth officer, who is responsible to see that the valuation made is a fair one, that he can stand by under the penalty of the Government being made to pay the costs if the Commonwealth is wrong. Similar .provisions to this have worked very well for a number of years in other States. If the departure is made which the honorable and learned senator suggests, encouragement will be given to people to bring claims against the Commonwealth, and the officers of the Commonwealth will be encouraged not to be as careful as they ought to be in making their valuations.

Senator KEATING:
Tasmania

– I regret that I cannot agree with Senator O’Connor with respect to the payment of costs. I do not think’ we can take as a criterion of the necessity of this provision what has been the practice in the various States under the Lands Clauses Acts, or any modification of those Acts that any of the States may have chosen to adopt in the past. Senator Dobson has pointed out very clearly that there is a very grave distinction between the class of cases- and the manner in which they are to be determined under this Bill, and the class of cases” that have come up for consideration and the method of determining them in the past under the various Lands Clauses Acts of the several States. In the States cases we have had arbitrators. Our experience, at least in the case of those States who 1 have modelled their law upon the Land’ Clauses Consolidation Acts of Great Britain, nas been that where it has been necessary to resume land for public pur-‘ poses the land owner simply receives a notification from the public authority that ‘ a certain portion of his land is to be taken ‘ by the Government or by the particular body intrusted with statutory powers by the Parliament of the States. He isasked to notify whatever amount is due to him, not only for the acquisition of his land, but for the damage arising to the rest of his’ property through any severance that is necessary. The owner makes an assessment accord;singly; and we know that in every case the’ man is exceedingly charitable to himself,; Where £500 would have paid him, *he is’ careful to ask for £2,000. The Government’ then appoint their valuators to determine what shall be paid to him, and the valua-tors perhaps certify that £600 is ample’ compensation. The individual is tendered £600, and perhaps he refuses to take’ less than £2,500. The matter then goes to arbitration. By whose compulsion does’ such a matter go to arbitration? Suppose the arbitrators determine that the amount the man is entitled to is ‘£650. Is it not obvious that the arbitration is not due to the action of . the Government but to the obstinacy and greed of the private individual who claims £2,500, when the Government offers him £650? Yet according to the sections of the Acts from which this clause has been modelled, if only a shilling more was awarded to the owner, he would be entitled to his costs. Here we have adopted different procedure. We have gone away from the old rut, and have introduced a Justice of the High Court sitting without a jury, with power to determine the amount of compensation to be awarded to the individual whose property is to be acquired for public purposes. I think we should have full confidence in the gentlemen who are to be appointed to the high and responsible positions of Judges of the High Court of Australia. We should surely endow them with a discretion such as is intrusted to ‘ the Justices of the several State Courts, no matter what may be their jurisdiction, high or low. I think Senator O’Connor will recognise that this is new procedure. It is a departure from the procedure we have hitherto had in the States by which we invested a man’s next door neighbour, perhaps, with the power of determining the compensation to be awarded to him in connexionwith the acquisition of his land ; next door neighbour knowing when he gave his award that perhaps on a future occasion the claimant would be acting in a similar capacity towards land of his. When a man’s property is to be acquired under the provisions of this measure, he is notified that perhaps the Government are prepared to give him £750. He may absolutely refuse it, and may then be offered £800. He may still refuse, and may be disposed to take nothing less than£2,000,knowingfullwell that under the rigid statutory provisions of this measure, if he can succeed in getting a shilling more than was offered him, the Government will have to pay the whole of the costs. I am not speaking merely in a theoretical sense. I have had some experience in cases of the kind, and I know exactly what is the attitude of some people towards the Government. In nearly all these cases the land-owners consistently regard the Government as a milch cow, especially where such provisions are in operation as exist in the old country. But we have deviated from that principle, and have intrusted to the highest judicial authority, to a man who is capable of considering the whole circumstances, the power of making an award. We should give to the Judge under those circumstances a certain amount of discretion, which, after all, does not exceed the ordinary limits of the powers with which the Judges of certain of our civil courts of inferior jurisdiction are intrusted. I believe the suggestion thrown out by Senator Dobson, which is dictated by past experience, ought to be adopted, and that we should invest the justices of the High Court with that little amount of discretion which is given to justices in any part of” the British Empire. We should put into the clause the words “ unless otherwise ordered.” If the justice recognises that the claimant has been awarded an amount disproportionate to what he is entitled to, he may give to him not merely the amount he should receive, but his costs. But where the man has obstinately held out against what the Crown has offered him, and the arbitrators have offered him something that is obviously very little different from, what he is entitled to, the justice should have the power of saying - “Well, Mr. Proprietor, Mr. Owner, Mr. Claimant” - or whatever he may be - “ you have involved the Government in these proceedings, and when £3,750 was offered to you, it has been found that you are only entitled to £3,800. As the difference is so small we consider that each party should pay its own costs.” This is a discretion which we can very well intrust to the justices of such a tribunal as we hope to have erected in Australia before very long. I trust that Senator O’Connor will see his way clear to accept an amendment of the character suggested. It does not in vital terms alter the clause at all ; but simply carries out a principle we recognise in connexion with all our tribunals throughout the Empire. It does not violate the rights of any individual who comes before , the court to seek redress, simply because he has been forced to come there by the action of the Government.

– I hope I shall always”keep an open mind on these matters.

Senator Major GOULD:

– I hope the; honorable and learned senator will keep an. open mind on other matters, but I am. pointing out that what I am arguing for is’ the clause that the Government have themselves placed before the Senate. The Government have found that a majority, of honorable senators are opposed to what they have proposed, ‘ and they are willingnow to abandon the position they took up in -the first instance. I do not say improperly. They may have been persuaded by thearguments adduced in this Chamber to depart from their original proposal. If the Government see fit I cannot prevent them from recommitting the clause, but, although what I have been contendingfor does not commend itself to the majority of honorable senators, it still appears to me to be fair and equitable. I’ do not see why, in a matter of this kind, we should leaveany thing to the discretion of -the Judge, unless it is absolutely necessary. I say that with. all respect to the judiciary, and with all respect to the Judges now on the bench, or to those who may occupy the bench in future/. I believe every man who goes there will be actuated by the earnest desire to do yhat is-, right and proper. Still Judges sometimes; take peculiar notions into their heads, and sometimes make mistakes ; and if we can lay down a particular line of action to be followed I think it is very much better that we should do so, so long as we satisfy ourselves that it is fair and just.

Senator HARNEY (Western Australia). - I am sure that Senators Gould and Keating will excuse me for saying that they have delivered very long speeches, and throughout those speeches have clearly shown that they are not very well up in the exact practice in these matters. Whatever its deficiencies in other respects, I think I can say, with the approval of every legal member of the Senate, that there is nothing at all unusual or unnatural in this clause. The suggestion made by Senator Dobson was not that the - clause was in itself contrary to the ordinary legal rule, but that in this particular case we could improve upon the ordinary rule. The ordinary rule is, as this clause. says, that if the judgment in any action is for a sum equal to or less than the amount of the valuation notified to the claimant, the claimant shall pay the costs of the action.What does that mean ? Clause 13 says that after the Government have fixed the amount of the compensation they shall inform the claimant of the amount. He can take it or leave it. If he leaves it and brings an action he does so at his own peril. The court will decide the matter if an action is taken, and if the Judge upon his calculation thinks the claimant ought to get more than the notified value, h will say he was right in bringing his action and he will give him costs ; but if the Judge comes to the conclusion that he ought not to get more, or that he ought to get less than he was originally offered, he will say he was a very foolish man to bring his action and he will not give him costs.

Senator Major Gould:

– That is what the clause says.

Senator HARNEY:

– Exactly; and I do not see why it has been necessary to go into all these heroics about it. Senator Dobson says that, although the rule is as stated here, it is possible that an exceptional case might arise, and it would therefore be as well to amplify the rule by adding to it that the Judge should have a discretion. The proposition is really a very simple one.

Clause, as. amended, agreed to -

Clause 17 -

In estimating the compensation to be paid, regard -shall in every case be had by the valuators or the justice, not only to the value of the land taken, but also to the damage (if any) caused -
1. by the severing of the laud taken from other land of the claimant ; or
2. by the exercise of any statutory powers by the Minister otherwise injuriously affecting such other land ; and they shall assess the same, according to what they find to have been the value of the land, estate, or interest of the claimant on the first day of January last preceding the date of acquisition, but without reference to any alteration in such value arising from the proposal to carry out the public purpose for which the land is taken.

Provided that where land is taken for the purpose of any work or undertaking the construction or carrying out whereof has been specially authorized by an Act, the land, estate, or interest of the claimant shall not be assessed at a value exceeding the value thereof on the first day of January last preceding the first day of the session of Parliament in which the Act was passed.

Provided also that the valuators or the justice in estimating such compensation shall take into consideration, by way of set-off or abatement, any ennhancement in the value of the interest of the claimant in any land adjoining the land taken, or severed therefrom, by the carrying out of the public purpose for which the land is taken. But in no case shall this proviso operate so as to require” any payment to be made by the claimant in consideration of such enhancement of value.

In ascertaining, for the purposes of this’ section, what land adjoins or is severed from the land taken, no account shall be taken of the intersection of any such land by any roads.

Senator DOBSON:
Tasmania

– Might I ask Senator O’Connor what is meant by “ the same “ as used in this clause after paragraph (b)? The clause provides that in estimating compensation regard is to be had to the value of the land taken and the damage caused by severance and by the exercise of any statutory powers by the Minister, and the valuators or justice shall assess “ the same “ according to what they find to have been the value of the land on the 1st day of January preceding the date of acquisition. It seems to me that the words to which I have called attention a’re not very carefully used in the clause.

Senator O’CONNOR:
Protectionist

– This is the phrase followed in all these Acts. “ The same” as used here applies of course to the land. It applies to the land all through, in the first instance with respect to the land taken itself, and in the other cases referred to to the value taking into account the damage by severance, or by the exercise of the statutory powers by the Minister injuriously affecting the land. I think it clearly means the land in reference to these heads of value which are stated.

SenatorDOBSON (Tasmania).- I wish to ask the honorable and learned senator a question which was asked him before, as to whether he is quite sure “that, under clause 17, the Judge trying the matter may give a certain percentage for compulsory sale. I think the honorable senator told us before that the ordinary rule would be followed, but it occurred to me that, as the clause states exactly what a Judge shall allow for compensation and that it shall be the value of the land, estate, or interest of the claimant on the 1st day of January last preceding the date of acquisition, it is possible that a percentage for compulsory sale may not be allowed. I am asking whether the clause is not so worded as to exclude the Judge from giving the ordinary 10 per cent. margin?

Senator Harney:

– No. The Bill will incorporate the ordinary legal procedure.

Senator DOBSON:

– I know the practice is almost invariably to give something for compulsory sale. If a mistake is made, it is not fair to make it against the’ owner whose land is compulsorily taken, and it is the practice often to add from 5 per cent. up to, I believe, 25 per cent. I would like the Minister to be quite satisfied that clause 17 allows that practice to be continued.

Senator O’CONNOR:

– Under exactly similar provisions in all the States it has been constantly the practice of the court to allow this 10 per cent., and it has always expressly been put upon this ground : There is no legal right to it, but by the ordinary principle of the administration of justice where a man’s land is taken, it is always supposed that the value shall not be weighed in golden scales. We are not to be particular in such matters about trifles, and it is a fair thing where a man’s land is taken to allow him a little over the actual value. We cannot restrict a Judge in dealing with this matter, and if we say nothing about this he will probably come to a conclusion that the whole value of the land is a certain amount, and he will assess it at so much. We cannot prevent him from dealing liberally - with a claimant in a case where his land is taken. The question has been raised in many cases in New South Wales, I know, and it has always been held there that it is the usual practice to direct juries in that way under an exactly similar section.. These cases will be tried according to the practice of the High Court, and that practice will be followed. There is a difficulty about putting it in so many words in the clause. There may be cases in which, although a man’s land is compulsorily taken, nothing ought to be allowed for a forced sale. Supposing, for instance, that it really has not been a forced sale, that he has been very anxious to get rid of the land. He has had plenty of time to get rid of it, at a value which, it is proved, is the highest possible value he can expect to obtain. There may be cases of that sort in which the court would value rigidly according to exact evidence.

Senator Dobson:

– The Minister can hardly argue it is not a forced sale because we compel him to sell.

Senator O’CONNOR:

– I quite agree that it is a forced sale. The question is -whether a man suffers any damage by that forced sale. I know that a great many persons gain by a forced . sale. In all the States there must be numerous pieces of land in the case of which the best thing that could possibly happen to the owners would be for the Government to resume. I should not think that they would claim anything or be entitled to anything for a forced sale. If we leave the thing in the elastic way in which it is, the Judge, if he thinks there has been any damage by a forced sale, will allow it in his ordinary estimate of damages, but if there has been nothing he will not allow it. I think it is very much better to leave it as it is. It always has been left to the discretion of the J udge in each case, and especially so where we have these cases tried by the Judge himself.

Senator DOBSON (Tasmania).- It has just struck me that I did not make the most of my point, and I apologize for not doing so. In almost all the States except Tasmania there is an unimproved capital value tax. Therefore we have no Government or national value of the land. In Tasmania we have a land tax on the total value of the land, and one can turn up a roll and see the value of every bit of land in the island, assessed by Government valuers, with the right of appeal on behalf of the land-owners, and the land is taxed a halfpenny in the pound on that capital value.

Senator Keating:

– That is the land and the improvements.

Senator DOBSON:

– The whole land, with all above it and all below it. If the Government required to take any of my land, and in the roll it was put down at £1,000 could the Judge, if he wanted to give me the 10 per cent., award me £1,100 in the face of this provision? -

Shall assess the same according to what they find to have been the value of the land on the 1st January.

– I know it has been adopted in connexion with some railways - such as the one to Brewarrina, where there is a zone system, and also I think in connexion with the Grenfell railway. It would be too much to ask for a further proviso in favour of general betterment j but I do not like the clause as it stands. On the other hand, if nothing better is to be obtained, on the general principle I shall support it. But

I should like to have a further opportunity of proposing an addition to it for the purpose of adopting a general betterment principle.

Senator WALKER:
New South Wales

– In New- South Wales we passed what is called the Moore-street Resumption Act, by which a street adjoining the General Post-office was widened. The persons whose land was taken away were paid for it, but the whole neighbourhood was taxed, according to what is known as the betterment principle. I was so struck with the force of the argument of Senator Harney that I suggested to him that after theword “ shall “ in this clause it might be well to insert the words “ so soon as a betterment tax is enacted.” I am not regarded by some persons as being very radical, but I think there are strong arguments in favour of the Government having the unearned increment. I shall support Senator Harney’s proposal if the mattergoes to a division.

Senator MCGREGOR:
South Australia

– When I heard the eloquent appeal of Senator Harney in .the interests of the unfortunate property-holders, I was almost convinced that he was right, but his arguments have been clearly answered by Senator Millen. The honorable senator clearly showed that by conferring a. benefit upon ‘one individual or two we were not injuring anybody else. We are dealing here with a certain proposition to give compensation to somebody, and we are also taking as a set-off against that compensation any benefit that he may receive. That is all that this clause deals, with. This Bill is not a betterment Bill, and I only hope that senators who are sofrightened of conferring favour upon one or two individuals, and not conferring favour tothe same ‘ extent upon everybody else, will support a Bill when it is brought down for the purpose of securing to the Commonwealth by some form of taxation, or in some other way, the real benefit of improvements, the people of the Commonwealth make themselves. Why not go on now and pass the clause dealing with the specific question that is before us, and, as soon as every honorable senator has made up his mind to introduce a measure which will provide that every individual who may be benefited by any federal improvement shall pay something for that, we can argue it out, and we can impose such taxation or rates upon them as will give the benefit to the people to whom it rightly belongs 1 As the question stands now, we are dealing with one party we compensate, and let us stick to that at the present time. Let us give him fair compensation, but let us see that the Commonwealth is not going to be robbed. One of the arguments Senator Harney has used was so ridiculous that I am almost ashamed to refer to it. . It is that because this law does not exist in Western Australia-

Senator Harney:

– Oh, no ; in England.

Senator McGREGOR:
SOUTH AUSTRALIA · ALP

– Well, in England. Does Senator Harney mean to tell honorable senators that England and Western Australia contain the wisdom of the whole earth ?

Senator Harney:

– They are useful guides.

Senator McGREGOR:

Senator O’CONNOR:

– I find that-

As a principle this is really no longer debatable. Even so conservative a body as the Committee of the English House of Lords, after hearing all the arguments in opposition, have recently come to the conclusion that - “ The principle of betterment - in other words, the principle that persons whose property has clearly been increased in market valueby an improvement effected by local authorities should specially contribute to the cost of the improvement - is not in itself unjust, and such persons can equitably be required to do so.”

Here, we cannot get hold of all those persons whose properties have been benefited, but we get hold of one who comes for compensation.

Senator Harney:

– And the Government rob the one man.

Senator O’CONNOR:

– My honorable and learned friend need not talk about robbing, because, as a matter of fact, theperson who comes for compensation has his claim truly and well adjusted, and there is no doubt everything is always awarded on the most liberal scale to persons whose lands have been taken compulsorily for any public purpose. I merely made that quotation to show that not only is it adopted in Australia and other parts of the world, but that even in Great Britain and amongst persons of the most conservative class of opinion the principle is recognised - whether you extend it far or whether you do not - that a person who derives a benefit from a public work when his land is taken, shall not have the total value of the land, but shall have the value of the land less the amount of benefit, which he, for his adjoining land has received. I hope the committee will not assent to the amendment.

Senator WALKER (New South Wales). - Senator O’Connor is rather mistaken if he believes that in every case the owners are benefited by the construction of public works.

Senator Drake:

– He did not say in every case.

Senator WALKER:

– In Brisbane, an estate of which I happen to be a trustee, has been injured to the extent of thousands of pounds. We asked for a certain amount of compensation ; they offered us £600 odd; it went to arbitration and they gave us £1,200 or £1,300. Although we got that sum, we are poorer to-day by thousands of pounds owing to the severance which took place.

Senator O’Connor:

– The estate was entitled to get damage for severance.

Senator WALKER:

– We cannot get it under the brilliant system which exists in Queensland.

Senator FERGUSON (Queensland).This principle operates very unjustly in some cases. Supposing that a railway goes through a man’s home paddock, and cuts off the only permanent water supply, the portion not cut off is then valueless. The property is completely destroyed, and if the man owns any land adjoining, according to the last proviso, the enhanced value of that land has to be taken into consideration as a set-off against the damage he suffers. But if a neighbour on the other side has a property which the railway does not touch in any way, he has the full advantage of the enhancement in value. It would be far better for the man if the Government took away the whole of his land. The house portion of the property is destroyed when his water supply is cut off, and the water supply portion is really valueless, because it is low, swampy ground. In acase of that kind, unless a man gets a very high compensation, he is a great loser by the railway going through his property.

Senator O’CONNOR:

– Under this clause we are enacting that compensation can be recovered for the loss of the water to the adjoining land.

Senator Major Gould:

– The owner is absolutely entitled to it.

Senator O’CONNOR:

Senator CLEMONS:

Senator Clemons:

– It does not say “ intangible and visionary.”

Senator HARNEY:

– Does it not ? The Government say - “We want a hundred acres of land.” The moment they speak, the hundred acres become worth £10,000 in the’ market. If a bank wishes to purchase a property of that kind it has to plank down its ten thousand sovereigns, and no matter how much the neigh bourhood increases in value, and whatever the amount of good that arises from the work done, the person owning the property only gets what represents the market value of the land taken. But if the Government say exactly the same thing, “We want 100 acres of your land,” they are not to put down their £10,000. How do the Government carry out their contract? They say that the whole neighbourhood has benefited, but that they will not give to the man whose land they have taken any share of that benefit. Is that fair ? Clearly it is not. If a private railway company takes a person’s land they are compelled to pay for it. Why then should not the Government give the property-owner the market value of his land? What is the difference between the promoter who is deputed by the Government to bike land compulsorily, and the Government that takes the land compulsorily? There is no difference - absolutely none. That is the reason for the position I have raised, and nothing could be stronger. If any honorable senator thinks it worth while to investigate the matter further, I commend the decision of the Privy Council in the case I have quoted. To reduce the matter to an algebraical proposition, individuals whose property adjoins the land taken by the Government retain the value of that land plus x, the value to the neigbourhood; but if the land is taken, they substitute money for land - they give to the owner the value of his land minus x. Is that fair ?

Question - That the words proposed to be omitted stand part of the clause - put. The committee divided -

Ayes … … … 18

Noes … … … 5

Majority … …. 13

Question so resolved in the affirmative.

Amendment negatived.

Clause agreed to.

Clause 18 -

Such compensation shall bear interest at the rate of 3 per cent. per annum from the date of the acquisition of the land until payment of the same ismade by the Commonwealth to the claimant, or until the same is deposited in the Treasury as hereinafter mentioned.

Senator MILLEN (New South Wales).I should like to draw the attention of the Vice-President of the Executive Council to the rate of interest proposed under this clause. Sub-clause (2) says that the rate shall be 3 per cent. per annum. That appears to me to be altogether too low. I do not wish to suggest any figure which would be unfair to the Commonwealth, but, at any rate, the States themselves do not borrow at 3 per cent. And if they are paying more for their public loans than 3 per cent. it is not unreasonable to say that the Government shall pay at least the rate of interest that they would have to pay if they borrowed. I would suggest that 4 per cent. should be substituted for three. That rate is low enough. Very few people who have money invested in property are obtaining such a low return as 4 per cent.

Senator Clemons:

– They are glad to get it.

Senator MILLEN:

– Fortunately, New South Wales is not reduced to that position yet. I move -

That the word “ three,” line 2, be omitted with a view to insert in lieu thereof the word “ four.”

Senator DOBSON:
Tasmania

– I have pleasure in supporting the amendment. Four per cent. is the very lowest rate upon which money is lent on mortgage. Lenders are paying4 and 4½ percent. If the security is giltedged, with a large margin, you can borrow at 4 per cent. I believe that two-thirds of the land the Government will have to take for the purposes of the federal capital will be found to be mortgaged, and none of the mortgagors are paying less than 4 per cent. They are probably paying 4 per cent. and upwards; and if you take the lowest minimum rate for mortgages, 4 per cent. is a fair thing. Then I desire to point out that I think that the rate of interest ought to be taken, not from the date of notification in the Gazette, but from the date on which the owner surrenders possession of the land to the Commonwealth. It appears to me that, although this may not be a large matter, it may run into some hundreds of thousands of pounds if the Government are taking over large properties. When the Government are acquiring land for the capital, and take up enormous blocks of land, the purchase money will be considerable, and whether you pay a man 4 per cent. from the date of notification in the Gazette, or from the date the Government gets possession, will be a very different thing. If the Minister will agree to make it date from the time of taking possession by the Government, and that the interest shall be at the rate of 4 per cent. I shall be satisfied.

Senator O’CONNOR:
Protectionist

– I cannot agree to this amendment, but as it is likely that there shall be some discussion upon it we may as well report progress at this stage.

Progress reported.

page 2631

PUBLIC SERVICE BILL

Bill received from the House of Representatives, and (on motion by Senator O’Connor) read a first time.

page 2631

PAPER

Senator O’CONNOR laid on the table the following paper : -

Return to the order of the Senate, dated the 14th June, giving full particulars concerning the election of senators for New South Wales.

Senate adjourned at 10.6 p.m.

Cite as: Australia, Senate, Debates, 17 July 1901, viewed 22 October 2017, <http://historichansard.net/senate/1901/19010717_senate_1_2/>.

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Senate17 July 1901

QUESTION

HANSARD: SESSIONAL EXPENSES

Senator STEWART:QUEENSLAND

Senator O’CONNOR:Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

QUESTION

COMMITTEE OF ELECTIONS AND QUALIFICATIONS

Senator O’CONNOR:Vice-President of the Executive Council · New South Wales · Protectionist

Senator Sir Frederick Sargood:

Senator O’CONNOR:

Senator WALKER:NEW SOUTH WALES

The PRESIDENT:

Senator WALKER:

The PRESIDENT:

POST AND TELEGRAPH BILL

Senator DRAKE:PostmasterGeneral · Queensland · Protectionist

Senator Sir FREDERICK SARGOOD:Victoria

Senator Drake:

Senator Sir FREDERICK SARGOOD:

Senator Drake:

Senator Sir FREDERICK SARGOOD:

Senator DRAKE:

Senator Millen:

Senator DRAKE:

Senator DRAKE:

Senator Sir FREDERICK SARGOOD:VICTORIA · FT

Senator DRAKE:

Senator Sir Frederick Sargood:

Senator DRAKE:

Senator Sir Frederick Sargood:

Senator DRAKE:

Senator Sir John Downer:

Senator DRAKE:

Senator Sir John Downer:

Senator MILLEN:

Senator Sir William Zeal:

Senator MILLEN:

Senator DRAKE:

Senator Sir William Zeal:

Senator Sir FREDERICK SARGOOD:

Senator Sir William Zeal:

Senator Sir FREDERICK SARGOOD:

Senator Drake:

Senator Sir FREDERICK SARGOOD:

Senator Sir William Zeal:

Senator Sir JOHN DOWNER:South Australia

Senator Drake:

Senator Sir JOHN DOWNER:

Senator Drake:

Senator CLEMONS:TASMANIA

Senator Drake:

Senator CLEMONS:

Senator McGREGOR:South Australia

Senator Millen:

Senator McGREGOR:

Senator Keating:

Senator McGREGOR:

Senator WALKER:New South Wales

Senator Sir William Zeal:

Senator WALKER:

Senator Sir William Zeal:

Senator Drake:

Senator WALKER:

Senator O’KEEFE:Tasmania

Senator Clemons:

Senator O’KEEFE:

Senator CHARLESTON:South Australia

Senator Drake:

Senator CHARLESTON:

Senator DRAKE:

Senator Sir Frederick Sargood:

Senator DRAKE:

Senator Clemons:

Senator DRAKE:

Senator PLAYFORD:South Australia

Senator DRAKE:

Senator Sir Frederick Sargood:

Senator Drake:

Senator Sir Frederick Sargood:

Senator Drake:

Senate
17 July 1901

Senator STEWART:
QUEENSLAND

Senator O’CONNOR:
Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

Senator WALKER:
NEW SOUTH WALES

Senator DRAKE:
PostmasterGeneral · Queensland · Protectionist

Senator Sir FREDERICK SARGOOD:
Victoria

Senator Sir FREDERICK SARGOOD:
VICTORIA · FT

Senator Sir JOHN DOWNER:
South Australia

Senator CLEMONS:
TASMANIA

Senator McGREGOR:
South Australia

Senator WALKER:
New South Wales

Senator O’KEEFE:
Tasmania

Senator CHARLESTON:
South Australia

Senator PLAYFORD:
South Australia

Senator Sir WILLIAM ZEAL:
Victoria

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

Senator PEARCE:
Western Australia

Senator Lt Col CAMERON:
Tasmania