2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the AttorneyGeneral, without notice -
REPRISALS ON GERMANY.
Action in New South Wales.
Important action in the way of reprisals on
Germany for her action in blocking Australian trade in the Marshall Islands is proposed here. In the Legislative Assembly to-day Mr. Perry gave notice of his intention to move that wharfage dues be abolished, the revenue shortage thereby to be made up by (1) business licence fees on all German traders having business in the ports of New South Wales; (2) wharfage fee of £1 per ton on all German goods; (3) wharfage fee on the value of all German goods transhipped in the ports of this State?
Doesnot Mr. Perry’s proposed action conflict with the powers of the Commonwealth as defined in the following sections of the Constitution Act : -
Section 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to : -
Trade and commerce with other countries, and among the States.
Section 98. The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways, the property of any State.
– I have not noticed the passage in the Age to which my honorable friend calls my attention, but I shall take an opportunity to look at it, and, as he asks, to carefully consider the question. If the statements as to the imposition of the duties at these Islands are well founded, there is considerable provocation for all kinds of action.
Senator Sir JOSIAH SYMON laid upon the table the following papers : -
Memorandum relating to the erection of a memorial to Queen Victoria:
Memorandum relating to Island Steam-ship Services.
– I desire to ask the Attorney-General, without notice -
– It was difficult to catch the purport of the questions as they were read, but I think that they infringe the standing order, inasmuch as they contain expressions of opinion. .
– I havenot noticed the statements, and I think it rather a pity that prominence should be given to statements of that character on the records of the Senate.
– I wish to ask the Attorney-General, without notice, whether he has obtained the information regarding the collection of duty on China oil, for which I have applied from time to time ?
– I am now in possession of the information. The questions of my honorable friend read as follow : -
The following are the answers to the questions : - 1.£511 175.11d.
asked the Attorney-
General, upon notice -
On what date did the memorandum by MajorGeneral Sir Edward Button, concerning the report of the Carroll Select Committee, come into the possession of the Minister of Defence?
– On the 31st October last.
– May I ask why the memorandum by the late General Officer Commanding was not placed before the Senate at an earlier date?
– I placed it before the Senate last week, as soon as it came under my notice, because - as it would probably be used and quoted from - I thought it was well that honorable senators should have an opportunity of seeing the whole of it some days before the resumption of the debate.
– It was a highly improper thing to do.
asked the AttorneyGeneral, upon notice -
ISLAND STEAMER SERVICE.
The Chamber of Commerce to-day passed a resolution protesting against a subsidy for an improved service to the New Hebrides and other South Sea Islands, unless tenders are called for the service, and Brisbane is made a port of call?
– The answers to the honorable senator’s questions are as follow : -
Motion (by Senator Sir Josiah Symon) proposed -
That the Bill be now read a third time.
– I may not be able to prevent the third reading of the Bill ; but it is my duty to my constituents to raise my voice against its passing, and to protest against some of its provisions. A great deal has been said on all the points at issue, and I do not profess that I can add anything new, but I wish to place on record some of the objections which I think may most reasonably and justly be urged against the enactment of this legislation. The greatest blot on the Bill is the fact that it is an attempt to violate the spirit of the Constitution, in order, not to benefit the people as a whole, but to benefit a section of a class of the people. I anticipated that, prompted by a desire to make the Federation a success, and to allow this Parliament to win the respect of the people, we would refrain from straining the Constitution. It must be perfectly apparent to any men who are not hopelessly prejudiced in favour of the cause they advocate that the inclusion of the railway servants in the Bill is a violation of the letter and spirit of the Constitution. A moment’s consideration ought to show that the people deliberately gave to the Federal Parliament supreme control over certain very important matters, and left the States to exercise supreme control over all other matters. When the representatives of a section of the community seek, in a Conciliation and Arbitration Bill, to introduce matters over which the Commonwealth has’ no control, and over which the States must of necessity retain control, they are violating the Constitution. What is likely to happen if we interefere in such matters?
– How about the taxation of State imports under the Customs Tariff Act?
– The regulation of trade and commerce is vested absolutely in the Federal Parliament. When the power to legislate on a subject is given absolutely to the Federal Parliament it has all the authority necessary to enable it to exercise that power, and the States Parliaments have no jurisdiction. But the control of the railways remains absolutely with the States. Can any one say that it is our duty to set up a tribunal to lay down the rate of wages, to prescribe the hours, and to fix all the terms and conditions of employment? I feel perfectly certain that if such a provision were enacted the States would not abide by the awards ofthe Arbitration Court. They would tell us to mind our own business, leaving to them the matters over which they have control.
– The honorable and learned senator said all this on the motion for the second reading.
– One cannot say a good thing too often ; and, as I believe that this Bill is going to be a. very great failure, and that honorable senators will, the moment the matter goes before the High
Court, have it made clear to them what an injustice and what a gross wrong is being done, there is no objection to my placing my protest on record.
– Wasting time.
– I do not consider it to be a waste of time ; but if it were, we have wasted a good deal of time during the past eight months. Then I should like to refer to the agitation which is going on in the States with regard to the amendment leaving the agricultural and horticultural labourers within the purview of this Bill. I do not wonder that agriculturalists and farmers generally are anxious about the matter, because any man of common sense will agree that it is impossible to apply the unelastic and rigid conditions of an arbitration award to such industries. I have had an opportunity to move about this State a great deal lately. I was in three different places in Gippsland on Friday, Saturday, and Monday. I found that there was the greatest opposition to the application of the measure to the agricultural classes. It is absolutely impossible that it can be worked. In the district of Maffra, I regret to say, there is at the present time a drought, and instead of seeing waving fields of grass and clover extending over miles of country, the grass is withered, the crops are being ruined, and cattle are being turned into the oats. A farmer cannot tell at what time it may be absolutely necessary for him and his men to work. In order to get some little good out of the oats, the cattle are being turned into the crops at certain hours of the day. They have to be brought out again at certain hours. In such a case it is quite likely that the time laid down in the award of the Arbitration Court might lapse when the men were about to go to take out or to drive in the cattle. What would happen then ? The men would simply have to say to the farmer, “ Time is up, boss, and we are not going to do any more work.” If the farmer protested, they would say, “ Both of us will befined if we do it.” There are scores of illustrations that a practical farmer could give to show that it would be absolutely hopeless to endeavour to bring the agricultural labourers within the purview of the Arbitration Court, as we know the character of the awards given. But this provision, if it is ever carried out. will have a most lamentable effect upon the workers themselves. Every one of us would liketo see full justice done to all classes of agricultural workers; but, as far as I can under stand, no justice could be done to them under a provision of this kind. They will have to bear the burden of the disaster that will ensue. There is another provision which our common sense ought to have kept us from putting into the Bill. If the clause to which I refer is carried out, I am perfectly certain that the domestic servants will have very good cause of complaint on account of the action of my honorable friends opposite. It is quite certainthat if there is one class in the community that can be done without, it is the domestic servants. Just as on the occasion of the railway strike in Victoria the strikers found that they had been misled by their leaders, and that the whole population of the State rose up as one man and declined to allow their industrial life to be brought to a standstill, so it is certain that if we apply these rigid conditions to the various kinds of domestic servants throughout the Commonwealth, it will be found that the mistresses will do their own work, and that servants will be dismissed by the hundred, when they will be compelled to join the ranks of the unemployed. My honorable friends opposite do not seem to grasp the idea which Mr. Chamberlain is trying to put before us, that the first good which a nation has to conserve is open avenues of employment. We ought to encourage employment in every possible direction. We ought to endeavour, to induce men to invest capital in enterprizes. If the avenues of employment are kept open, as a matter of course the working classes will get good wages. But if our affairs are so regulated as to drive capital out of industry, if we curtail employment and make it impossible for men to carry on business, because they will not pay to workmen 6d. per day more than their industries can reasonably afford, we shall be curtailing employment as sure as night follows the day, and shall, in consequence, reduce wages. The next question with which I have to deal is the vexed one of preference to unionists. When the next general election takes place I hope most earnestly that the issues at stake will be put before the electors so plainly that they cannot be misunderstood. I am perfectly certain that my honorable friends opposite will cloud the issues if they can. They think that it would suit their purpose to go to the country upon the question of preference to unionists. All that I have to say is that I hope that that will be one of the issues. I hope that it will be made known throughout the length and breadth of the Commonwealth that there are certain trades unionists for whom preference has been secured by honorable senators opposite, and that the effect of this provision is to keep the avenues of employment open exclusively for unionists. I hope that it will be made clear that nothing which can be found in the Constitution, or which can be read into the Constitution, gives to trade unionists this right over their fellow workmen. It is a right which no sense of justice or of liberty can give to them, but which, unfortunately, this Parliament has agreed to give. Before considering some of the details of the Bill, let me direct the attention of the Senate to the provision which, at the instance of my honorable friend, Senator Pearce, has been added to clause 55. It reads -
No organization shall be entitled to appear before the Court to oppose an application for preference by any organization of employees so long as its rules or other binding decisions direct the application of its funds to political purposes;
I ventured to raise a point of order on that proviso when it was moved ; and, without saying for a moment that the ruling of the Chairman of Committees was wrong, may I point out, as we all desire to keep our Acts of Parliament in order, why the proviso seems to me to be contradictory of other clauses, and requires to be amended. Under clause 2.7 the President of the Court may, if he likes, ask for counsel to appear before him. Under clause 2’g the award is made binding on all persons appearing before the Court. That clause follows out the principle which is the foundation of our judicial system - that a man cannot be judged in his absence, and cannot be bound unless he has notice. If in any ordinary Court you desire to obtain a verdict against a man, he must be brought before the Court in some way or other. Clause 40 goes on to say that all the persons interested, in the award that is asked for must be summoned before the Court. Before preference can be obtained, the parties must be summoned. Before preference can be granted the interested persons have to be heard. Let us have regard to those provisions in connexion with Senator Pearce’s proviso. That proviso debars all organizations which employ their funds for political purposes from appearing before the Court. I say that it is in direct contradiction of the other provisions.
– It does not prevent them from appearing, except in opposition to an application for preference.
– That is in direct contradiction of the three other provisions which I have mentioned, and it is also in violation of the principle upon which justice is administered. Then if we turn to clause 65 we see that it provides that organizations are entitled to be registered, and to be heard. I should like my honorable friends opposite to consider together all the clauses to which I have referred. How are they to be got rid of? They embody the very principle of judicial administration, upon which every Act of Parliament is framed. But if effect is given to Senator Pearce’s proviso no organization which has anything to do with politics can be heard in the Court in opposition to an application for preference. It comes to this. Suppose a claim is made on behalf of an employes’ organization for preference.. If they ask for preference against any organization of employers, and if the latter organization has anything to do with politics, this onesided proviso prevents the employers from being heard, notwithstanding that other provisions of the Bill require that all the persons interested shall be summoned and. be heard. This proviso is repugnant to our common sense, and it is repugnant to all those principles under which justice is administered in English Courts. I cannot conceive how it is to be carried out. But I am bound to say that I think that the proviso will be very nearly inoperative, because very few organizations of employers will have rules which’ permit their funds to be employed for political purposes. Their organizations will not bother about politics. They will form organizations solely for the purposes’ of this measure. We have heard a great deal about the Employers’ Federation, but that is not an organization within the meaning of this Bill. It is a federation of all classes of employers, in all classes of industries. Therefore, we shall never have the Employers’ Federation appearing before the Arbitration Court. Then comes another question. Suppose that, when the employes are asking for preference, one or all of the employers concerned belong to the Employers’ Federation. I take it that that would not debar them from opposing the application for preference. Take the employers in the boot trade or the agricultural implement makers, or the shipping firms. In their individual capacity they may be members of the Employers’ Federation. But for the purposes of this measure they will belong to other organizations, which will be confined to the purposes of the measure. Therefore, I believe that in nineteen cases out of twenty my honorable friend’s proviso will be inoperative. But it is a blot upon the Bill, and it is not to the credit of the Senate that we should leave it in the measure. It is unworkable. There is no comparison between the employers desiring to oppose preference and the employes asking for it. If the employes desire preference, the Bill enables it to be given to them upon certain conditions’ and terms, and subject to certain limitations. But the employers ought not to be debarred from attending before the Court and opposing the application.
– Where does the honorable and learned senator find in this Bill a provision to the effect that the employes can only get preference subject to “ certain conditions and terms”?
– I find that the terms are that their unions shall have nothing to do with politics, but that they shall practically be organizations for the purposes of this measure.
– Give us proof that preference is to be given subject to certain conditions.
– The Court cannot grant preference if the organizations of employes have anything to do with matters political. But by Senator Pearce’s amendment we’ shall absolutely defeat that provision, because no employer can go before the Court and say that these terms are not being carried out, and that therefore the employes’ organization is not entitled to preference. What is the use of this Bill? There must be two parties to a dispute. We cannot imagine the Judge of an Arbitration Court administering justice between the capitalist and the worker under a measure one clause of which provides that in certain cases the capitalist shall not be represented in the Court at all.
– The Court will ask the other side what are their rules; it cannot grant . preference . until it knows what the rules are.
– If Senator Playford had a case before the Court, would he not like to be present himself, rather than leave it to the Court to argue his case for him ?
– I should like to be there on fair terms ; on the same terms as. my opponent.
– Surely the honorable senator never before saw such a measure as this, under which unionists are given the right to ask for preference, whilst in some circumstances the employers’ organizations are positively forbidden to appear ‘before the Court and say that they are not entitled to it, that to give it to them would embarrass trade, or that if it be granted they will be unable to obtain sufficient workmen? Under this Bill we do not allow the employer to go to the Court and plead his own case.
– We do if he goes there on the same terms as the employ^. He has only to put himself on the same plane as the- other people.
– It is not a question of putting people on the same plane.
– The honorable and learned senator wishes all the restrictions to be on one side.
– My honorable friends do not see that the two cases are not analogous. I am afraid I shall never be able to make them see it, and I shall therefore pass on. I am very mu,ch disappointed with this Bill, because it keeps conciliation quite in the background. It is entitled a Conciliation and Arbitration Bill ; but when we examine it, we find that its main principle is compulsory arbitration. If we believed that some day or other we should bring the capitalist and the labourer more closely together, we should have made conciliation the essential element of the Bill, and if there must be compulsion, we should have provided for it. In clause 34, there is certainly a reference made to conciliation. That clause provides -
The Court may temporarily refer any matters before it to a conciliation committee.
– Employers and employes can confer without this Bill.
– What on earth is the meaning of “ temporarily refer “ ? I have had occasion before to remind honorable senators that one of the reasons why the people of the United States and of Great Britain are not going in for compulsory arbitration is because, in order to settle industrial disputes, and minimize strikes, they have largely adopted a form of agreement which is known as the “ New York Agreement.” It contains a provision that no strike or lock-out shall be permitted until every conciliatory means of settling a dispute have first been exhausted.
– That rule has existed for hundreds of years.
– The means adopted are three : They have a joint committee, as is proposed in this Bill, under clause 34, but in this Bill, instead” of plainly saying that no case shall come before the Court until it has been dealt with by the joint committee, and until the joint committee has exhausted every .means to decide it, we merely provide that the Court may temporarily send a dispute to the committee. The Bill should provide that this joint committee, composed ‘of three men representing either side, should certify that they have tried to settle the dispute, and have been unable to do so before it is brought into the Court. If, under the New York Agreement, the joint committee cannot settle a dispute, it is submitted to a board of conciliation, appointed by the workers on the one side, and the capitalists on the other, and if that board cannot settle the difficulty, it is submitted to a voluntary arbitration court, which in the United States is comprised of some of the foremost men in the country. President Cleveland, Senator Barham, and Senator Hanna have been members of the Civic Federation Court in the United States. Numbers of the leading men in the United States have tendered their services for the settlement of industrial disputes in that country. If we believed in conciliation, as1 1 had hoped we did, we should have made more of it in this Bill. We have not done that, and I am, therefore, afraid that the conciliation clause will become a dead-letter, and we shall then be told, as we have been told already, that conciliation has failed. I deny that it has failed. Cases have been cited in which conciliation has been unsuccessful. The reason of its non-success is that everybody has set his face in favour of compulsory arbitration, and has given no attention to conciliation. If we have the whole of the Labour Party in the Commonwealth pleading that nothing can be settled By conciliation, that every dispute must be submitted to the Court, before which the employer must be dragged, -whether he wills it or not, we can quite understand that compulsory arbitration will be thought more of than conciliation. But conciliation would bring about a better feeling between master and man, and would recognise the great principle that the relations between the capitalist and the labourer are far more identical and mutual than this legislation would lead any one to suppose. I desire’ to place these views on record, andi, although I cannot prevent the third reading, I protest against the Bill, because, it is a violation of the Federal spirit, a violation of freedom, and a violation of those principles upon which justice is administered in every British community.
– Before the Bill passes its third reading, I should like to take advantage of the opportunity to say a few words upon it, especially as I did not avail’ myself of the opportunity to speak on the second reading. I understand from the speech just delivered by Senator Dobson that the honorable and learned senator, and perhaps some other members of the Senate, object to the Bill on the ground that it gives preference to unionists. It has been remarked once or twice in the course of our debates that the measure introduced by the Government of which I was a member also contained this principle.
– And without limitation or qualification.
– It is in this Bill without any limitation.
– What about clause 55 ?
– I think it is right that there should be some limitation. I am in favour of giving preference to unionists, but I should not attempt to defend it on high democratic grounds. I have wondered that honorable senators who have spoken so strongly with regard to making the principles of this Bill applicable to every one, including agricultural labourers and domestic servants, have not seen that they are somewhat inconsistent when they advocate preference to unionists as a high democratic principle. I have been surprised that they have not seen that they are departing from democratic principles in advocating a differentiation between one class of employes and another. I would not justify it on high democratic principles, but I do justify it on the ground of necessity.
– This measure is only for organizations of employes and of employers.
– The Bill is intended to make provision for the settlement of industrial disputes, otherwise than by means of strikes and locks-out.
– Disputes represented by organizations.
– I prefer to deal with the matter in my own way. It is recognised by every politician and statesman who has devoted himself to the consideration of this subject, that the only way in which these industrial disputes can be brought before the Court and properly settled, is by means of organizations on both sides.
– Is not that exactly the reason we advanced for preference to unionists ?
– I am a party to the Bill with the provision for preference to unionists in it, and I am defending that provision now on the ground that it is necessary, in order to provide for the settlement of these disputes, that the parties should be properly represented before the Court, and to be so represented they must be organized. That is to say, there must be organizations on both sides of such a character that they will be responsible for the carrying out of any award of the Court, and will be subject to penalties if the award is not complied with.
– But we had organizations before there was any provision for preference.
– Here is, to my mind, the justification for giving preference to members of these organizations. The employes engaged in a particular trade are represented before the Court by an organization which consists of a large number of members, each one of whom is responsible for obeying the award, and subject to a personal penalty if he does not obey it. It seems to me to be very reasonable, when an organization has gone before the Court and obtained an award, that we should be able to say to other men coming forward for employment in that particular trade or calling, that before they can be entitled to the benefit of the award, and work under it, they must subject themselves to the conditions of the award; that is to say, they must become members of the organization which has secured it.
– Preference need not necessarily be a part of the award.
– That is so, but it is a justification for a grant of preference, that every member of the organization is liable to any penalties which may be enforceable for a breach of the award. I should like to ask honorable senators to turn their attention to schedule B of the Bill, because I think that sufficient attention has hardly been given to it. I believe that a careful study of that schedule will show exactly what is the type of organization intended to be brought into existence under this Bill. It deals with the -
Conditions to be complied with by Associations applying for Registration as Organizations.
And every organization must have certain rules which embody these conditions. The rules are somewhat analogous to the draft articles of association, which are to be found in schedules to the Companies Acts. They are not expanded but in brief ; they are a model set of rules for organizations coming into existence under this Bill. They contain all that by the scheme of arbitration is considered to be absolutely essential. I might say, in passing, that an organization may have rules of a political character, and that would be no bar to its obtaining registration, but the conditions set out in schedule B must then be embodied in its rules. There is provision in this schedule for the . appointment of a committee of management, a chairman or president, and a secretary, and for their powers and duties, and then there are these provisions : -
And then comes the provision that no member shall discontinue his membership without giving at least three months’ notice, and the further provision for the control of the property and the investment of the funds of the association. It will be noticed that all the conditions to be embodied in the rules are, first of all. of a strictly non-political character, and, secondly, are designed to show the object of the organization, and to insure that the members abide by the award. It appears to me most reasonable to say, when a dispute has occurred and has been brought before the Court and settled, that a person who desires to work and take advantage of the award must become a member of the organization, and agree to the rules, so as to insure the carrying out of the award. This, to my mind, shows exactly the line of distinction with regard to political matters. I do not think there is any inconsistency in the idea of an organization under the Bill having strictly non-political rules, while unions, which may be component parts of the organization, have political rules. We are dealing with disputes extending beyond one State, and therefore we may assume that in nearly every case an organization will consist of men who are members of more than one union. If the dispute is one extending from one State into another, there will, at all events, probably be two unions, one in each State, which will have different rules. I see no reason why an organization registered under this Bill may not consist of a great number of unions, or a great number of members of different unions; but it is perfectly clear, seeing the possibility that nearly every union will possibly have a different set of rules, that all the sets of rules cannot be those under which the organization will register. It may be that the unions will agree to accept the rules of one of the organizations, but it is more probable that for the purpose of registration there will be an entirely new set of rules. There should be no difficulty whatever in such an organization adopting a set of rules which have nothing in them of a political character, so that preference may be accepted, without interfering in the slightest degree with the action or otherwise of any of the unions whose members may be members of the organization which is registered. Looking at the matter from that point of view, I cannot see why there should have been such a strong objection on the part of some hon- or able senators to the provision that preference shall not be given so long as there is anything of a political character in the rules of the organization. It seems to me that all the purposes of the Bill can be carried out without interfering in any way with the rules of existing organizations.
– Then the Bill should have been drawn in that way.
– I can see nothing in the. Bill contrary to the view I have taken. According to clauses 62 and 63, the GovernorGeneral may proclaim an organization under the Bill ; and, as that is in the case of disputes extending beyond one State, it is clearly contemplated that clauses 62 and 63 deal only with disputes of the most extensive character throughout Australia. If the Governor-General is going to proclaim associations of employes all over Australia engaged in some particular industry, it seems to me perfectly clear that there will be no set of rules in existence to apply to such an organization, and, therefore, power is given under clause 63, if the organization does not itself adopt rules, for the Court to prescribe rules. And I have no doubt that in such cases the rules prescribed will be of an entirely nonpolitical character. I need hardly say that I am supporting the Bill, but I have refrained up to the present from speaking in support of it, because I do not desire in any way, even by occupying time, to delay the passage of the measure, which I am extremely anxious shall become law. It has almost been thrown in my teeth that I am accepting this Bill with a provision, the insertion of which in another place caused the resignation of the Government of which I was a member. I mean the provision including States public servants.
– The railway servants.
– Not only railway servants, but public servants generally. It is right I should say, as a member of a Government that took up theBill as it stood, that I have not changed my opinions on the subject. The grounds of objection taken by the Deakin Government were, in my opinion, perfectly sound. It willbe remembered that there were two objections to the inclusion of States public servants - one that their inclusion was not constitutional, and the other that if it was constitutional, it was not a proper provision, because it was an interference with the States, and absolutely opposed to the Federal principle. It was at the end of the last session last year, that Mr. Deakin announced that if such a provision were included, his Government would resign. Many things have happened sincet hen. We have necessarily been studying, not only our own Constitution, but the Constitution of theUnited States and of Canada, and of cases which have arisen under the two latter. It appears more clearly to me, and I think it must have appeared more clearly to others in the course of the discussions on those cases, that we are confirmed in the view we took that the provision itself is unconstitutional. That may seem paradoxical ; but to my mind it is no paradox. The more clearly it appears to me Lhat the first ground of objection is a good one - namely,” that it is absolutely unconstitutional - the less necessary it becomes to insist on the second objection, that the provision is an interference with the States, and, therefore, un-‘Federal. Of ocurse, I quite admit that when we know a provision is unconstitutional, or we believe it to be so, we should endeavour to prevent its being passed. But, on an occasion like this, when a Bill of this character is at stake, it is justifiable to pass a provision, even though we may doubt its constitutionality, rather than lose the whole measure. I am not altogether inconsistent in my action with regard to this matter. The Senate will remember that in the case, of the Fraudulent Marks Bill I pointed out on several occasions that I doubted the constitutionality of its provisions. I did not, however, oppose that Bill on its second reading, or in Committee, or on the third reading, though on each occasion I drew attention to what I considered to be unconstitutional provisions. At all events, I think I am justified in taking all risks and in voting for the third reading of this Bill.
– The honorable and learned senator is proving too much - he is proving that Mr. Deakin ought not to have resigned.
– Not altogether. Senator Playford did not perhaps notice the point. I was stating that our know-‘ ledge on this subject has increased very much since then. It was some time last year, before any of those important constitutional cases had come before the High Court, that Mr. Deakin took up the position that the provision was unconstitutional and un-Federal, and that therefore he would resign rather than allow it to go into the Bill. As I tried to point out just now, the more clearly it appears that this provision is unconstitutional, and that effect will never be given to it, the less are we open to the charge of doing anything un-Federal in accepting the provision in order that the Bill may be passed into law. I feel strongly about this measure, because I was one of the small party who introduced what was practically Mr. Kingston’s Bill in the Queensland Parliament -in 1894, a year after, I think, a similar measure had been passed in South Australia. Senator Dawson and Senator Turley were members of the Queensland Parliament at that time, and I have no doubt that, if opportunity had been given, they would have made speeches in support of the measure, of much the same character as that I myself delivered. It happened that I had my opportunity to speak on the second reading, but the measure was talked out, and did not come up again, so that the honorable senators whom I have mentioned had no chance to express their opinions. I am quite sure, ‘however, that we should have been on the same side in support of the measure which contains compulsory provisions, and was looked on in Queensland’ ten years ago as a very advanced piece of legislation. Since that time I have always been desirous that such a Bill as this should be passed into law ; and I have had the more reason, perhaps, for taking a little additional interest in it, seeing that this was one of the measures in the programme of the first Federal Government. Of the measures in that programme, I think seveneighths have been carried into law, there being only two remaining at the commencement of this session, namely, the Conciliation and Arbitration Bill and the Navigation Bill. The latter has been sent to a Royal Commission, and I am particularly desirous that the Conciliation and Arbitration Bill shall be passed into law. The Bill may not be all that some honorable senators opposite desire, and it certainly is not quite all that some honorable senators on this side desire.
– It is far too much.
– The very fact that this is a measure which does not absolutely suit those who represent extreme views on both sides is some sort of indication that it is a fair compromise between existing differences. I have always sought, and do now, in legislation of this character - and I think it is a safe line to follow - to get as good a measure as possible. Many reminiscences have been indulged in during the debate, and I should like’ to illustrate what I mean, if I may, as to the attitude I take up in regard to the measure. In the year 1900, in Queensland, when I was a member of the Philp Administration, which, we have been told, was Tory and reactionary, I had the good fortune to be able to place before the Legislative Council of that State, which has also been described as a reactionary body, a Shops and Factories Bill, which was regarded at the time as being the most advanced piece of legislation of the kind in Australia.
– Was that not a Shops and Factories Amending Bill ?
– No, it was the principal measure, which has not yet been amended. I need hardly mention that the nominee Council contained many members who di3 not believe in the enactment of a Shops and Factories Act. They disagreed very strongly with some of its provisions. There was” other business on the notice-paper, and they could have talked out the Bill, or blocked its passage if they had chosen. But they considered that the measure was asked for by the people of the State, and they passed it. I was afterwards thanked by Members of Parliament, including some labour members, for the small part I had played as the representative of the Government in the Legislative Council.
– Why make a point of including the labour members?
– Because they may have short memories. Four years ago it was thought that the passing of the Bill was a credit to the Philp Government. I was’ very pleased to get it passed, because I wished to see it on the statute-book.
– Does the honorable and learned senator think that this’ has anything to do with the Bill before the Senate ?
– My point is that the action which was taken in 1900 bv the Legislative Council of Queensland is an example which honorable senators might follow.
– What is the point - not to throw out the Bill?
– The point is not to raise unnecessary difficulties against its passage. If honorable senators on either side find in it a provision with which they do not altogether agree, do not let it be magnified into such an obstacle as would prevent the passing of the Bill.
– Who is doing that? The Minister. is meeting, trouble half way.
– Amendments have been moved and strongly pressed which, if carried, might have done much to hinder the passage of the Bill. Some honorable senators said that if this provision were carried or that provision rejected they would be glad if the Bill were dropped. I ask the Senate not to take up any such attitude.
– The honorable and learned senator is referring to Senator Gray.
– I know that Senator Gray objects to preference to unionists, and would be quite willing to see the Bill dropped. But I appeal to honorable senators on both sides not to allow such differences of opinion to stand in the way of its passage.
– Why is the honorable and learned senator delaying its third reading ?
– I have no desire to delay the passage of the Bill; in fact, I know that I am not doing so. If I had spoken at length on the motion for the second reading or in Committee, perhaps there might have been some ground for the interjection. I compliment honorable senators upon having put the Bill through so expeditiously, and I hope that no impediment will be thrown in the way of its final passage.
-Col. GOULD (New South Wales). - Judging from the interjections, there seems to be an idea amongst a good many honorable senators that the third reading of the Bill should have been allowed to .go on the voices, without a single objection being raised. At this stage the whole of a Bill is under review, more particularly when important amendments have been made, which have converted a bad Bill into a worse Bill.
– Is the honorable and learned senator going to call for a division ?
.- Probably I shall ask the honorable senator to vote against the motion.
– All right; try me and see.
.- I know that the honorable senator is very likely to vote against the motion.
– But the honorable and learned senator agreed to the .adoption of the report upon the Bill.
.- There is no reason why exception should be taken to an honorable senator debating the Bill at this stage. Although Senator Drake has claimed some credit for the way in which he managed to pass a Bill through the Legislative Council of his State, still it is not analogous to the present case. In that casehe was dealing with a nominee Chamber, but in. this case he is dealing with an elective Chamber. While it may be perfectly right that a nominee Chamber should be careful in dealing with a measure which has received a strong support from the members of the other House, still we are responsible, not to a Government, but to the electors. By-and-by every one will have to justify his vote on this measure. If a man is honestly opposed to a measure it is his duty to state the grounds of his opposition.
– Is not that also the duty of a member of a nominee Chamber?
.- He has no constituents to consider. Senator Drake has said that if honorable senators are satisfied that this Bill is called for by the public, it ought to be dealt with in an intelligent way, and passed in a form which will meet their wishes. I deny that it is called for by a majority of the people of New South Wales. I deny that the last elections in that State turned on this question. It is perfectly true that some members who were returned to the other House were in favour of a measure of this character being enacted. But it is equally true that the State returned three senators who are opposed to the measure as it stands.
– There is a Conciliation and Arbitration Act on the statutebook of New South Wales.
– Yes, and that is one of the reasons why the people of the State are so opposed to the principle of compulsory arbitration at the present time. State experience has shown how dangerous this kind of legislation is, and how liable it is to do injury where it was expected to do good.
– The members of the State Assembly were returned to keep the Act on the statute-book.
SenatorLt.-Col. GOULD.- The State Parliament limited the operation of the Act to seven years. Are honorable senators prepared to allow this Bill tobe recommitted for the insertion of a similar provision, Because if so I am willing to submit an amendment to that effect? Senator Turley smiles and shakes his head. We know how difficult it is to repeal a law. Senator Drake has referred to the resignation of the Deakin Government on the question of including States servants in this Bill. He mentioned that the Government are convinced that this provision is unconstitutional, and will not be enforced. And he suggested that we need not argue the question of its being un-Federal, and likely to be unsatisfactory to the State. That is an additional reason why we should avoid the possibility of any persons imagining that we are attempting to take rights from the States. Does it not seem monstrous that States servants, whose salaries are voted by the States Parliaments, should be brought under a Bill of this character ? Is a State Parliament to be expected to allow its servants to be dealt with by a Court in whose appointment it will not have a word to say, and whose constitution it cannot alter. It is monstrous to suppose that any State would allow that sort of thing to be done. It has been pointed out clearly, and by no one more clearly than by the AttorneyGeneral, that the provision is unconstitutional. Although two members of the Ministry here regard the provision as unconstitutional, while in the other House their colleagues fought tooth and nail against its insertion, yet they are attempting to pass the Bill. We know perfectly well that the rejection of the Bill will not raise a quarrel. It might be that if it were rejected the whole of next session would be taken up with a reconsideration of its provisions. If the Bill is undesirable, is it not better to resist its passage, not only in this session, but also in next? A far more serious injury would be done if we were to pass a Bill that is not desirable in the interest of the public at large. If we enact an unconstitutional provision, it will be most un-Federal, and will lead the States to think that we are determined to absorb as many of their powers as we can.
– No doubt, it ought to be struck out of the Bill.
.- Why did not the honorable senatorvote with me when I attempted to get it struck out? Why did not Senator Drake vote with me on that occasion ?
– Because we wished to get the Bill put through.
.- It is wrong to bring the States into antagonism with the Commonwealth.
– How could I vote if the honorable and learned senator did not call for a division ?
.- There was a division.
– The States have no interests which are not identical with those of the Commonwealth.
.- The States have their own rights, and if this Parliament seeks to monopolize those rights it will do more to undermine the principles of Federation than anything else which could take place. Then, again, not only does the Bill deal with States railway servants, and men whose salaries are paid by other authorities, but we are attempting to pass legislation under which we claim the right to dictate to the States as to hours of labour and conditions of employment. That is diametrically opposed to the Constitution, and unjust to the ‘States. We have also decided to include agricultural and ‘ horticultural labourers and domestic servants. Here, again, we are striking a blow at the rights and privileges of the States. It is not possible in an intelligent way to regulate the employment of agricultural or horticultural labourers through the instrumentality of Federal law. In New South Wales, where a provision of this kind has’ been in existence for three or four yeaTS, no attempt has ever been made to bring it into operation.
– Agricultural labourers are not excluded under the New South Wales law.
– But there has never been an attempt to apply the Arbitration Act to them. If it is impossible to apply it in a State it must be absolutely impossible to apply it in the Commonwealth.
– Where is the harm in leaving them in?
.- The harm is that we are engendering uncertainty, and that should not be done.
– The honorable and learned senator admits that the provision is harmless in New South Wales.
– Senator Turley would never have voted for it unless he believed it could be made use of. Otherwise he was voting for a sham. Domestic servants are expressly excluded from the New South Wales Act, arid wisely so. Do we want to have a walking delegate marching into the kitchens of private houses to organize the servants into a union in order to bring about disturbances? Senator Drake has spoken in defence of the preference provision, and has argued that where organizations of employes bring a case before the Court, and cause it to be investigated, they ought to have the privilege of preference to their members. But even if there were no preference to unionists, any person who attempted to obtain employment in an industry affected by an award would have’ to obey that award.
– He would not be subjected to penalties unless he were a member of the organization.
.- Any person who committed a breach of an award would be’ guilty of an offence, and might be fined. I am aware that the idea is to have “ collective bargaining,” so that no man is to be allowed to regulate his own affairs, but must call in somebody else to assist him. It is a gross interference with people’s affairs, and a great injustice to insist upon men joining any organization unless they wish to do so of their own free will.
– They will see fit to join.
– Because they will be compelled. The operation of the New South Wales law ought to open our eyes as to the exclusiveness of the unions and their tyranny towards their non-union brother workmen. Well may it be said that the unionists represent the aristocracy of labour. They desire to have everything in their own hands. A few years ago the unions were weak in numbers. Thev worked hard to increase their strength. I do not blame them for so doing. They had a perfect right to organize. But they have managed to work their organizations in such a manner that they have been enabled to obtain from the States Parliaments legislation which they never could have got by virtue of the merits of their proposals.
– We have followed the advice which the honorable and learned senator gave us in 1890.
.- Yes; and I do not complain of its having been done. But many concessions have been made to the Labour Party, because they were a third party in politics. They have been enabled to get their way because it suited one party or the other to grant their demands, and because politicians have not stood up against them as they ought to have done when they believed them to be wrong. Now they are endeavouring to get al! the industries of the country under their control. They are working their ‘organizations in such a way as to block individual workers, if they have ability and energy and determination enough to become employers of labour themselves. Clause 40 originally contained the words - provided further that no such preference shall be directed to be given unless the application for such preference is, in the opinion of the Court, approved by a majority of those affected by the award.
Why has that important provision been struck out? I was not present during the debate, but I believe it was said that the Court , WOUld act upon the principle laid down in the provision, and that therefore there was no necessity for inserting it in the Bill. But there must have been some reason why honorable senators opposite objected to it.
– Give the Court a free hand, as is done in New South Wales.
.- Yes, but the Court in New South Wales has often had to make a special provision to protect nonunionists against the unionists, in order reinsure that they might become members of the unions. I need only point to the award of the Court in the brickmakers’ case. Clause 19 of that award provides -
If and so long as the rules of the claimant union permit competent workmen of sober habits and good repute upon application in writing, and upon payment of an entrance-fee not exceeding 5s., and of a contribution not exceeding 6d. per week, and without ballot or any other mode of election, to become members ; and so on. Why was that clause inserted in the award? So that men who wished to join the unions might not be prevented by a barrier in the shape of a £5 entrancefee.
– What is the entrancefee to the legal union?
D- When the honorable senator wishes to join the legal profession, I shall be happy to give him any information. But there is no provision for preference in the rules affecting that profession. If the honorable senator cares to go through .the necessary instruction, and to pass the necessary examinations, he will have just as free admission to it as any one else. The action of honorable senators opposite in regard to the provision I have mentioned shows the necessity for being very cautious in regard to .the way in which preference is applied.
– Unionists do not object to the award of the Court, which has been quoted.
.- They do not object now, because they cannot help themselves; but .they did at first. In the brickmakers’ case, the union applied to the Court to direct that the employer should guarantee the brickmakers full payment of their wages. They were not satisfied to leave it to the contractor to pay them, although there had not been a single case brought before the Court in which a workman experienced a difficulty in obtaining his wages. The Judge is reported as saying
Another demand raised in the course of the case was that where contract work was done the Court should impose upon the employer the responsibility of seeing that the contractor paid his workmen the wages prescribed in the award. The Court had not imposed any such condition, because for long years the contract system had been in existence in that industry, and not one single instance had been adduced where a workman working under those contractors was “ not . promptly and punctually paid the wages that he had earned.
Where is the necessity- for the union to make such a claim as that? I point this out in order to show how difficult it is to deal with these unions unless they are tied down by hard and fast rules.
– How many times have men been done out of their wages ?
– I know that men have had to sue for wages on many occasions.
– The honorable and learned senator has never worked for a contractor, or he would know that men very often have to complain that their wages have not been paid to them.
– In this instance the Court said that not a single case had been adduced to show that the men had had a difficulty in securing their wages. If there were such cases, they should have brought them forward. I regard the elimination to which I have alluded as a serious alteration of the Bill, and one that calls for grave consideration. I sincerely hope that honorable members in the other Chamber will insist upon our adhering to the measure as sent up in the first instance. I hope they will object to our amendment in this particular, and that they will also object to the inclusion of agricultural labourers and domestic servants.
– The honorable and learned senator wants the Bill to be rejected.
– I am going to vote against the third reading, and I should not do that if I did not desire to see it rejected. I voted against the amendment submitted by Senator Pearce on clause 55. I think it was a mistake to insert it, but I do notregard it as of such vital importance as do some honorable senators. In my opinion it can be evaded simply and easily, but it shows that the spirit of this legislation is one of retaliation.
– No, of fair play.
.- I know that Senator Pearce said that his amendment was not a retaliatory amendment, but the honorable senator admitted that if it had not been for the Committee insisting upon the proviso forbidding preference to any employes’ organization of a political character, he would not have submitted his amendment.
– Hear, hear.
-That shows at once that the amendment was of a retaliatory character. The contention was, “You take something from us, and we shall therefore take something from you.”
– No ; “ We shall make things even for both sides.”
.- That suggestion to make things even for both sides is proof of the retaliatory spirit to which I refer.
– Thehonorable and learned senator desires an advantage for one side.
.- I do not. The position of the organizations are not identical, and in the one case it should be remembered that it was proposed that a man’s bread and butter should be dependent upon his being compelled to join an organization having political views with which he did not agree. The provision has been inserted as a consequence of what we have learnt from the operation, within the last three or four years, of similar legislation in New South Wales and New Zealand. We are learning something every day in connexion with this legislation, and I believe we have yet to learn that it would have been better to have altered many of the provisions of this Bill. We are told that this measure is intended to prevent strikes and locks-out, but I would ask honorable senators opposite how far such legis lation has been successful in preventing them? It may have minimized them, but we know that strikes have occurred, notwithstanding the operation of this legislation. I have only to remind honorable senators again of the difficulty with the coal-miners in the Teralba case, where the men absolutely refused to obey an award of the Court, and stood out for a lengthened period. I admit that the union authorities brought pressure to bear, and induced the men to go back to their work, but I cite the case as an instance to show that we shall not gain all that is expected from this legislation. It must not be forgotten that the action of the miners in the Teralba case resulted, not only in the loss of their wages to the men, but in injury to the mines and to the port. More recently there has been the strike of the coal-trimmers at Newcastle for extra pay on a public holiday, the 9th November, when the men knew perfectly well that under the law the holiday was to be observed on the 14th. It was never intended that men should take advantage of an award of the Court to obtain two days’ extra pay instead of one. But these men, regardless of the interests of their employers and of the port, went out on strike at such a time, and remained out for a week or more.
– Who brought the strike to a close? Was it not the union authorities, by bringing pressure to bear on the men ?
.- The strike was brought to a close because the employers made an application to the Court for a mandamus to compel the men to go back to their work, and after that application was granted, the union officers told the men that they mustobey it.
– Does that not show the efficacy of the Court?
.- Do not honorable senators see that in this case serious injury was done to the port of Newcastle? I regard this as a matter of more importance than the injury to the individual miner or the employers. Coal-miners in the Newcastle district have been complaining that wages are low, that they cannot get enough work, and that the output of coal is not sufficient. Yet they are prepared by foolish, misguided action to do what they can to make the port a by-word with people outside.
– Is that the fault of the New South Wales Arbitration Act?
– I do not say that it is; but I do say that it is evidence that an Arbitration Act will not prevent strikes. In this case, if there had been no award, there would probably have been no strike. We know very well that the effect of this legislation has been to create a multiplicity of disputes in connexion with all sorts of trades. Every little difficulty is brought before the Court, and the business of the Court is congested, and likely to remain so for a considerable time.
– Would not all this have been better said on the second reading?
.- It can be said equally well on the third reading. Instead of bringing masters and men together, compulsory arbitration laws have been shown to have a tendency to drive them apart. Under this legislation, each side asserts its intention to depend upon the Court, and not upon mutual consideration and conciliation. We know that this legislation has also a tendency to discourage the investment of capital in these States. Men do not know where this kind of thing is going to end, and they hesitate to invest large sums of money in any enterprise when they may be called upon to pay wages they cannot pay, and be compelled in consequence to allow their capital and machinery to lie idle. We have made a serious mistake in not having waited for a longer experience of the operation of the Arbitration Acts in force in New South Wales, New Zealand, and Western Australia. I submit that there was no hurry for this measure. When the power to deal with this matter was inserted in the Constitution, it was never contemplated that a measure of so far-reaching a character would be intro*duced. The great danger is that many industries which at the present time can be State-contained will, by some process of ingenuity, be involved in disputes extending beyond the limits of one State.
– The honorable and learned senator would have “legislated in a panic.
.- Nothing of the kind. If this measure had’ dealt only with seamen and shearers, it would have gone quite as far as is necessary or expedient at the present time. I do not intend to further detain the Senate. I desired this opportunity to enter my protest against the Bill; and, having done so, I shall content myself now with voting against the third reading.
-Col. NEILD (New South Wales). - I believe I have given as many votes on this Bill as I have spoken lines in respect to it. I do not therefore suppose that it will be deemed an intrusion on my part if I say a few words on the third ‘reading. I was not present in the Senate during last week, because I had a public engagement to fulfil in my own State, and I take advantage of this opportunity to thank my honorable friend Senator Higgs for the courtesy of a pair while I was compelled to be absent. In the few words I said on this Bill I laid it down plainly that I intended to vote against all amendments, no matter by whom proposed. The Bill, as it reached us, was the outcome of a great deal of effort and of compromise. It had been hammered at in another place for something like twelve months, and had been the cause of the wreck of two, if not three, Ministries. I regarded the measure, as it reached us, as one which, with all its faults, I should be best serving the public interests by accepting. It was on that account I voted against all amendments by whomsoever proposed. However, many of the amendments submitted have been carried, and I find in the Bill today provisions which were not in it when it was introduced. I therefore do not consider my vote on the second reading binding upon me in any way in respect of the third reading. I propose to give my vote against the third reading. I do not intend to occupy the time of the Senate in dilating upon’ the different amendments to which “I refer. We all know what they are. The amendment to which I take chief exception is the alteration of the provision insisted on in another place, ‘after an immense amount of trouble and discussion, with reference to preference to unionists. I also take extreme exception to the suggested possibility of the inclusion of employments connected with the soil of Australia, from the tropical north to the more than temperate south, within the scope of this measure. I do not see how from the cane-fields of tropical Queensland to the apple-orchards in Tasmania we can have a common rule applicable to occupations connected with the soil. I do not intend to go into these matters in detail, but merely to express briefly the reasons which induce me to vote against the third reading. I do so because of the amendments which have been carried by a very small majority of the members of the Senate. I do not suppose that my vote will prevent the passage of the third reading. If it is passed, I have no doubt that the Bill will be returned to us with certain intimations. Whether the Senate will then go back upon what it has already done, or whether the Bill will be thrown under the table to be dealt with at a more convenient season, are contingencies which do not trouble me very much. I agree with Senator Gould, that there is no wild urgency for this measure. At the few meetings I addressed during the last election, I was never, on any occasion, except at a women’s meeting, asked any question with respect to this Bill. I never heard the question of compulsory arbitration mentioned at any of the meetings in connexion with the ejection in New South Wales. I do not say that it was not mentioned, but that I never heard it.
– Was the question asked at the women’s meeting, one with respect to domestic servants?
– No; with regard to the inclusion of domestic servants, I must say that I think it is eminently an evidence of the eccentricity of genius that such a provision should find a place in this Bill. By no possible imagination can it be conceived that domestic servants can be so organized as to come under its operation. The provision is in the Bill, but we know that it is never likely to be made use of, and it merely disfigures a useful measure, and with others is a sufficient reason for doing as I propose to do, with these few words of explanation, and that is to give my vote against the third reading.
– I think the occasion demands that those who, like myself, are opposed to this Bill intoto, should speak their minds.
– I think the honorable senator voted for the second reading of the Bill ?
– I did; but I often vote for the second reading of a Bill, in the hope that I may be able in Committee to secure some amendment of it.
– There was no division on the second reading.
– Whether I voted for the second reading or not, I am at liberty to do as I please just now. Every time I have spoken on this measure,
I have intimated what I think very clearly, as I always do, and as I hope I shall continue to do. I have said that I was opposed to some of the principal clauses of the Bill as it reached us. The amendments agreed to by the Senate have, in my opinion, made it a worse Bill than it was when it was first introduced here. To my mind the inclusion of rural industries raises a fatal objection to the measure. It may be said that the Bill will never be taken advantage of by those engaged in the rural industries, and, therefore, will do no harm ; but my answer is that if it should be, it will prove the biggest obstacle yet placed in the way of the prosperity of this! country. The mere presence of such a contingency will tend to create a scare which must prove disastrous. The whole (prosperity of Australia depends on the productions of the country ; we could not exist for two years if our producers did not prosper. I cannot conceive how even members who hold the most extreme views can support legislation of this kind.
– It is because those engaged in the rural industries are workers.
– Are we not all workers? Have I not been a worker for over fifty years - a hard worker with brain and muscle?
– Then the honorable senator ought not to object to an Arbitration Bill.
– I object to any legislation which will have the effect of retarding the progress of the country, or tend to destroy the prosperity of the working man. My opinion is that this legislation will hobble working men much more than it will hobble capitalists. A ship-owner or other capitalists may remove his capital from the country ; and I should like to know what would happen if the debenture-holders in London were to call up all their money on the due date. What would happen if we were not able to pay interest on the money we have borrowed ?
– What would be our position, if we attempted to repudiate ?
– In what position will our credit stand if we even speak of repudiation ?
– Did not the banks repudiate all notes in 1893?
– The banks reconstructed, and would not pay the depositors their money.
– The banks were compelled to do so - that is commerce. Honorable senators are laughing, but they do not know much, if anything, about the matter.
– Yes, we do.
– Then honorable senators should not laugh.
– We cannot help it; the honorable senator is so funny.
– The banking trouble was brought about by overspeculation and reckless dealing - that is to say, some of the trouble, though not all, was thus caused. To bring farm servants under the Bill will do a great amount of injury to the prosperity of the country.
– Farm servants will bring themselves under the Bill.
– But farm servants are enabled, and almost forced, to take advantage of the Bill.
– They are not mentioned in the Bill.
– The prosperity of New Zealand, which is so often cited as a pattern, has not been brought’ about by such legislation as this; indeed, it is such legislation that is retarding the progress of that Colony at the present time. In New Zealand only 29 per cent, of the population are in the four principal cities, whereas in Victoria and New South Wales there is something like 45 per cent, of the population in the towns. Then, again, New Zealand has the advantage of a mountain chain up to 12.000 feet high, and a magnificent rainfall.
– New Zealand had all that in 1890.
– Of course it had. In Australia, on the other hand, there is a vast tract of country subject to cycles of drought, against which those who have capital invested are endeavouring to make provision; and such legislation as this will prove worse than the droughts which have nearly, ruined us.
– Does the honorable senator object to the Bill applying to the pastoral industry?
– In 1902, during the worst drought we have experienced, there was a strike in the shearing industry in New South Wales in spite of legislation of this kind. Five hundred shearers and rouse- abouts struck in Riverina, although there is no class of men who earn their pay more easily than do the shearers who use the machine. It must not be thought that I am begrudging the men their pay, but I may say that with the machine it is possible, though it is an extreme case, to shear up to 200 per day, while the average is about 100 in a fairly good shed.
– How many days in the year is a man able to do that?
– He is able to do it for three or four months in the year.
– Constant work?
– Senator Fraser knows better than that.
– I know better than does the honorable senator who is interjecting. On my own small property in Riverina the shearers had seven weeks’ work.
– That is not three months.
– Senator McGregor ought to know that the Queensland shearing season is in July, while in Riverina it runs through August, September, and October, and in Victoria October and November, and is at present in progress in Tasmania. It is well known, also, that even after the Tasmanian season shearers may go to New Zealand.
– Have shearers wings ?
– Shearers may travel on the railway and on bicycles, which are almost as fast as the railway. Hundreds of unionists said that it was a dis* grace there should be a strike in New South Wales during a drought, when the stock was starving in millions ; but the shearers, who were getting £ per ‘hundred, were goaded on, not by the bulk of their fellowworkmen, but by the agitators in town. The great bulk of the men are in sympathy with the employers, and wish to do what is right and fair; but there are agitators who live and grow fat by the game, and it is to their interest to inflame the minds of innocent, hard-working men. When a shearer uses a hand shear the muscles of his right arm at the end of the season are like bones with hard work, but with’ the mechanical appliances he has merely to whisk his hand round the body of the sheep, and he earns his f, per hundred with ease and comfort. We cannot trust human nature in organizations, as has been proved from the beginning of history. Men are bound to go to extremes unless some check is imposed.
– Does that apply to the Employers’ Federation?
– Certainly ; both sides go to extremes, human nature being the same in the employer as in the employe. Legislation of this kind will prevent hard working, intelligent men from rising in life. We must remember that 99 per cent, of our lawyers, doctors, merchants, bankers, and others have risen from the middle or lower classes.
– But they do not get up before sunrise.
-The honorable senator’s early rising is inimical to the country - it would be a godsend if he could sleep for ever. I stake my reputation as an employer of labour that 99 per cent, of the farmers of any State are self-made men.
– And so they will be after this Bill is passed.
– That is not so, because the tendency of the Bill will be to keep men down in the gutter.
– Farmers and lawyers are not touched by the Bill.
– Farm hands are included ; and does that not touch the farming interests? Can we touch the farming interests without touching the farmer? If we cut the ground from underneath the farmer’s feet,where is the farmer? Vanished into thin air. The Bill will do a lot of harm, and, for that reason, I am quite prepared to vote against its third reading. If its operation were limited to five years, I should be very much inclined to support the motion, because I know that the public will never learn except by experience.
– It could be repealed in less than five years.
– It is very difficult to repeal a statute.
– If the public howl against an Act, Members of Parliament will soon call for its repeal.
– The public might howl against the operation of this measure, but some honorable senators have a tenure of five or six years, and by the time new senators were electedthe country might be ruined. Surely we all believe that it is not constitutional to include State railway servants in the Bill? I do not suppose that there is a lawyer in the Commonwealth who does not hold that belief. If we all think that it is unconstitutional, why should we not do the right thing now? Fancy the railway servants of Tasmania, and Western Australia, being included in the Bill. The railways of some States have been brought into a bad position under local control, and if their management is to be subjected to the jurisdiction of a Federal Parliament we might as well abolish the States at once. I was hopeful that the provision would be struck out.
– Will the States railways be in any worse position under this Act than under an Inter-State Commission ?
– An Inter-State Commission would not interfere with the employes on the States railways ; but would merely do away with cut-throat railway rates, and thus prevent one State from filching the trade of another State.
– Victoria is pretty good at that sort of thing.
– Victoria is no worse than the other States. New South Wales is carrying goods from Junee to Hay for almost nothing, and South Australia is doing the same thing on her border.
– And Queensland.
– Queensland is not in a position to take traffic away from New South Wales. But Victoria is in a very strong position, and it is her bounden duty to do the best she can with her railways. There is no necessity to talk of an InterState Commission, when we are getting on very well with the ordinary Commissioners. If States railways were included in the Act, and they did not pay, what would happen? The producers would be still further handicapped. If the producers were not doing well, some railway servants must be put off, the prosperity of the towns would languish, and a state of great uncertainty would be created. When the public get dissatisfied, very often they do not ascribe hard times to the right cause.
– They should ascribe bad times to the Labour Party.
– I do not know why the Labour Party should be so anxious to legislate in this direction, because it is directly against the prosperity of employes. If I have capital I can take it away from the country. It may be said that i am a landed proprietor, but I am also interested in other directions. I own a share in some newspapers in Melbourne, and these cannot run away. If I am a ship-owner,I can take my ship to the other end of the world. It is by pure accident that I happened to invest my money in certain directions. Land in Australia is not like land in the old country, where it is greatly sought after. There are millions of acres always available here to any one who wishes to buy. We have been given this country to develop its resources, and it is our bounden duty not to place obstacles in the way of settlers. It is developed by the wool-growers, the farmers, the gold-miners, and the coal-miners. At the present time in Newcastle there are 1,000 miners idle simply because they labour under disabilities which are created by the Arbitration Act of New South Wales. The coal cannot be exported because the miners and the mine-owners are not brought together as they would be if there were no such law in force. In the absence of such legislation the two parties could come face to face, and the employer could say to the men, “ I have received an order for 1,000,000 tons of coal. I cannot take the order under present conditions; but, if you are willing to concede certain points. I shall do my best to meet you, and we can get it.”
– Even those men could not accede to the request because the other men in the union would prevent them.
– The men would not accede to the request because they might be denounced as “ scabs.” This legislation will do more harm than good. I am in favour of legislation like that which obtains in’ England. In proportion to population, there are not so many unemployed in the old country as in these States. The growth of England is a marvel to the whole world. It has not been brought about by compulsory arbitration or by preference to unionists.
– People are leaving England in thousands every week.
– The population has increased in every decade. Why cannot the Commonwealth proceed on safe lines? Why can it not follow the example of a cautious man or prudent firm, and proceed step by step, instead of going to extremes.
– We are leading the way, as we have done in regard to all sorts of things.
– On many occasions the lead has not been a good one. There is no harm in proceeding cautiously. The English Act is working well. In other parts of the world unions are not calling for this legislation. Why do the workers of the United States produce more than almost any men on the face of God’s earth ? Because they work with the intention of rising in the social scale.
– How many?
– A vast number of them. I know New York fairly well, and Canada much better. In New York a working man will walk down the street, dressed just as I am, with a good frockcoat and black silk hat. My honorable friends laugh simply because they do not know.
– When I went down the Bowery, in New York, I did not see any working men in frock-coats and silk hats.
– The honorable senator went to the wrong place.
– It is very likely that Senator Playford did. In New York, when a carpenter or an engineer is proceeding to his shop, he walks down the street dressed like a gentleman, and carrying his cane or umbrella, and at the shop he puts on a dungaree suit.
– He pawns his best clothes until the end of the week.
– In New York a carpenter gets two dollars per day, and in the course of two years he may be receiving 200 dollars per month.
– This is a fancy picture? I did not see these men when I was in New York.
– There are some men who go about the world, and never see anything.
– Do they not settle their disputes with guns in America?
– Once in a century they may. I object to preference in any form, whether it is demanded by a majority or a minority. Supposing that two men come into the country, and that only one of them is willing to join a union. Why should the other man be compelled to join an association in order to avoid the risk of starving? Surely “a fair field and no favour “ ought to be the motto of every working man and. of his representative. Is it British fair play to enact that John Smith may get work, but that John Brown cannot ?
– Has not the honorable senator shown preference when a dozen men have applied for a billet?
– I have generally selected the most suitable man. But that is a very different thing from enacting that preference shall be given to unionists.
– Has not the honorable senator given preference to -kanakas on his sugar plantations in Queensland?
– I have never invested a shilling in a sugar plantation, nor shall I ever do so. The honorable senator is trying to undo the very Act which the labour representatives in the Queensland Parliament have created.
– Did not the honorable senator always give preference to a No. 3 shovel when he was contracting ?
– Yes; I would not employ a man who had a tool of trade that was not fit for the work, as the honorable senator knows very well. I shall strenuously oppose the third reading of the Bill. I should be very glad indeed if it could be made tentative. The New South Wales Act is a tentative measure, and the Victorian Factories Act was made tentative at my instance. In consequence of that course being followed, we now have a measure which suits all parties on the statute-book. If this Bill were a tentative measure, I should not object to its being tested. But if it is put upon the statute-book in a permanent form, we may not have an opportunity to get it off again before it has done great damage.
– How long would the honorable senator advocate that it should be made operative?
– For five years.
– Senator Gould took exception to those who interjected when Senator Dobson was commencing his third-reading speech. I was perhaps the principal interjector, and I should like to explain Why. I have no objection whatever - and I agree with Senator Gould in that respect - to any honorable senator who is opposed to the third reading, and who has any fresh subject-matter to bring before the Senate, taking the opportunity to speak. But Senator Dobson has already spoken at very great length upon the second reading; he made practically the same speech on each of the proposed amendments when we were in Committee, and he has delivered the same speech in practically the same words for the fourth or fifth time as a third-reading speech. I do claim that that is deliberately and absolutely wasting the time of the Senate. I interjected - most reasonably, I think - in order to induce Senator Dobson to reconsider his intention to make another long oration. I hoped to induce him to sit down. But Senator Gould did certainly introduce some new matter, and therefore his contribution to the debate was exceedingly valuable. Senator Gould has proved to us in a way that no one else has hitherto attempted to do, the extreme ease with which the Arbitration Court can make it a very simple and cheap thing for any person to join a union. One of the chief grounds of complaint against the Bill was that the unions might close their doors. But the action of the Court in New South Wales which has laid down the principle that workmen should be admitted without ballot to the union mentioned by Senator Gould, so long as they were sober men, and paid an extremely small subscription, is, to my mind, the best recommendation that this Bill, as it stands, could possibly have. It gives full power to the Court ; and the Court in the case cited by Senator Gould,, has shown that it may be trusted to exercise the power wisely. Therefore, one of the objections to the Bill as is stands has been removed.
– I pointed to the case mentioned as an example of- the tyranny of unionism, which had to be guarded against.
– I accept the honorable and learned senator’s explanation, and will point out that he completely overlooked the fact that the ease with which the Court can make rules of this sort, is the very best recommendation in support of the Bill as it stands. The next objection which Senator Gould raised was the most extraordinary one that I have ever heard brought forward. It was that a union had endeavoured to get an award of the Court to the effect that a contractor should pay his men. To that he took the very strongest exception. He thought it wrong that a contractor should be bound by an award of the Court to pay his men. Does not that show the most marked animus against the Bill ?
– I objected that the contractor should be made liable for the payment of the wages of the employes. I read the words.
– It is the same principle.
– Has Senator Gould never heard of lien Acts?
– Exactly. What could be a fairer principle or a more desirable one to be laid down in this Bill? The fact that the honorable and learned senator objects to that provision shows the deliberate animus with which honorable senators from New South Wales fight against this extremely fair-dealing Bill.
Senator GRAY (New South Wales).I assume that every honorable senator knows how I intend to vote. The Bill has been interpreted by honorable senators opposite in such a way that I feel compelled to oppose the third reading, and if I could “stone-wall “ the measure until Christmas I should do so with the greatest pleasure in the world. First of all, I object to the Bill because there is no necessity for it. The people of Australia have made no demand for it, and there has been no occasion during the last few years for such a measure being brought into operation. The Arbitration Acts in New Zealand, New South Wales, and Western Australia were passed as experimental measures, and their operation was limited to a number of years.
– We have had. thirteen years’ experience of the New Zealand Act.
– I will show what has occurred in New Zealand. The time during which these Acts remain in operation has not yet expired, but I venture to assert that from the experience we have had there are very few men who will be courageous enough to state that they have been successful. Mr. Clarke, the representative of the American Labour Bureau, who was sent over to New Zealand to study the labour laws, states distinctly that, although’ there have been a few strikes since the Arbitration Act has been in operation, there were, comparatively speaking, few strikes in the preceding years. In that respect, therefore, there has been no New Zealand experience to guide us as to whether the Act has been successful. But Mr. Clarke also states that whereas harmony existed prior to the Act being passed, there has since been a system of commercial terrorism, and also a system by which the secretaries of the different trade unions have been enabled to create disputes. The commercial harmony that previously existed between employers and employed has been to a large extent destroyed.
– Mr. Wright says that perfect harmony has existed.
– I quote Mr. Clarke’s authority to the contrary effect. Whilst the wages of the employes may have been increased by a few shillings a week, it has also to be remembered that there has been a rise in the price of goods to the extent of about 40 per cent., which has more than made up for the increase in wages. In that respect, the New Zealand legislation has certainly not been successful. If there is a country on the face of the earth where an Arbitration Act should succeed, it is New Zealand, because no other country, as far as we know, has’ been more prosperous during the last eight or. ten years than New Zealand has been. In any case, there must have been an improvement in the condition of the employes.
– Would there not have been strikes on account of demands for increase of wages?
– There were no more strikes before the Act was passed than there have been since. New Zealand being a country with a very long coast-line, having four or five ports, and being only about 200 miles in breadth, there is no great aggregation of population in one or two large towns, and there are no great manufacturing centres, as there are in Australia.
– Some of the largest strikes in Australia have been in the country districts - take the shearers’ strike.
– I wish to read an extract from the Age newspaper of the day before yesterday, to show what has occurred in New Zealand, and also to show why I strenuously oppose the third reading of this Bill. The interpretation put upon it by Senator McGregor and Senator Dawson would induce me to oppose it, even if I had been more favorably inclined towards it than I am. I recognise that the Bill, so far from -conducing to the amelioration of the condition of the working Classes, is to be used in directions which will be detrimental to the interests of Australia and to the public welfare. The Auckland correspondent of the Age, in a letter dated 13th November, writes -
In the course of my inquiries into the operation of industrial arbitration I have seen and corresponded with labour leaders. This week I received a letter from a labour leader in the South Island on the subject of the increase in the cost of living since industrial arbitration came into force. His view is Mat “ labour legislation and labour efforts to effect improved conditions have not been responsible for the increasing cost of living.” He bases this view on the fact that the increases in the price of foodstuffs have been out of proportion to the increase in wages by awards. His letter concludes with a statement that puts the true meaning and bearing of industrial arbitration in a strong light. He says - It is obvious that the purchasing power of money is not now as great as it .was ten years ago. This is owing entirely to the absence of some power (legislative or otherwise) to fix the selling prices. Such a power to fix prices is a natural corollary to the establishment of a minimum wage such as the Court has pretty well fixed all over New Zealand. There you have in plain terms an admission that industrial arbitration is not an end but a beginning.
Talking with an Auckland labour leader - a really able man - he told me that it was now clear to him that to make the regulation of wages by law effective, the law must regulate the prices of everything that is bought, with wages. There could be no real advance in wages, he said, unless the prices of commodities remained stationary. “ That means Socialism,” I said, and he assented. Labour in New Zealand is discontented with the operation of industrial arbitration. Its leaders, however, do not propose to go back, but to go forward. They are forming a Labour Party whose programme will have for its chief aim the bringing of all the social conditions of the colony into step wilh industrial arbitration. The Auckland labour leader to whom I have referred confessed that he did not yet see in what way the worker was to get his own. He had doubts whether it was possible for any Court to undertake the task of regulating trade’ and commerce in such a way as to give the wage earner the benefit of an award made in his favour. Thus the matter stands to-day. Labour is angry at being foiled, and is preparing to fight for its own hand in the political arena, instead of remaining the obedient servant of the Premier.
That shows that the Arbitration Act in New Zealand has given satisfaction neither to employer nor employe. It shows that the employes acknowledge that the measure is used as a means to an end, and that that end is the passing of further legislation which will regulate the prices of all goods and dove-tail such matters into the union system. I regard that as an indication of the way in which the representatives of the Labour Party in the Senate intend to use this Bill, and as the principal reason why they have fought so hard for it. Reference has been made to the circular issued by Mr. Macgregor, who is a member of the Upper House in New Zealand, and who assisted to introduce this legislation in that Colony. He is a gentleman who has no personal end to serve, a man of high professional attainments, who was so favorably disposed towards this legislation that he put himself to a great deal of trouble to assist in initiating it, and yet his opinion of its operation is more detrimental than any one’ could have anticipated. After experience of its operation, he says that in every aspect it is shown to be an absolute failure.
– No one ever heard of him until he was mentioned here.
– He is known and respected in New Zealand. I venture to think that he is as well known in New Zealand as is Senator Pearce in Western Australia. It is probable that Mr. Macgregor has not heard of the honorable senator. I believe there is no necessity for this measure, and I do not think that it would pass if submitted to a vote by ballot of both Houses of the Federal Parliament. I do not believe that half-a-dozen members of the Senate are really in favour of this Bill. Honorable senators opposite are not in favour of it. They may be in favour of a Conciliation and Arbitration Bill, but they are not in favour of this Bill, and it will be passed only because it has been a nuisance which, has retarded legislation, and because the members of the Federal Parliament will be glad to see it out of the way. I would oppose this Bill under any circumstances, if it contained a provision for preference to unionists. I cannot define my views of preference to unionists better than by a reference to the decision of the Illinois Court, composed of three Judges, who, when they had the question of preference before them, unanimously decided that, so far as America is concerned, preference to unionists is unconstitutional, inasmuch as it interferes with the right of a citizen to earn his living as he pleases, and with his freedom under the law of America. This law of freedom is a wise law. Respect for individual freedom is the basis of the best traditions of English Courts, and it has made the English people what they are. Liberty is the highest attribute which as human beings we can “ possess.
– The burglar thinks so too.
– That is an absurd argument. It may be right that there should be regulation of liberty. Regulations as to hours of labour under varying climatic conditions, and as to sanitary conditions may be right, but they cannot correctly be said to interfere with the liberty of the individual. - There has been far too much interference with the liberty of the people of Australia. It appears to me that we are going back to the dark ages of the Greeks, and of the Venetian Doges, to the days when the time at which people went to bed, the amount of money which should be expended on weddings, on funerals, and on jewellery, and almost every exercise of individual liberty had to be submitted to the Committee of the Doges in Venice. All this has been held to be in the interests of the people, and every tyrant who has ever lived has justified his tyranny under the guise of action in the interests of the people. I have no objection to legislative action in the interests of the people as a whole, but when the law interferes with the liberty of a man to do what he pleases, to better the conditions of his profession, or trade in the interests of his wife and family, it touches that which should be deemed sacred by everybody. I am at a loss to understand why,1, in this country, as in America, some one does not propose to raise the question whether this legislation is constitutional. I object to the inclusion in this Bill of a provision which is calculated to degrade the dignity of the Senate in the eyes of the people of Australia. By including domestic servants under the Operation of this Bill, honorable senators have done something which they know is not within the range of practical politics.
– We did not include them.
– We have intruded matters political upon the harmony of the home, and our action is calculated to introduce dispute and discord into family life. The Government correctly interpreted the views of the people by setting out in this measure, as originally introduced, the persons who should not be brought under its operation.
– We merely removed invidious distinctions.
– They correctly interpreted the views of the people by providing that domestic servants should not be included under this measure. I am going to say what I think in this matter. I believe that . our honorable friends opposite have voted for their inclusion, not because they believe they should be included, or that the provision will be operative, but because they expect to be able to go round the country and tell domestic servants, who have votes, that they have done their .best to have tHem included under the Bill, in order that they may secure high wages, with the object of furthering their election campaign.
– Is not the honorable senator imputing motives ?
– I am not imputing motives to which many people would take exception. If honorable senators opposite object to what I have said, I shall withdraw it, but I have said it all the same. ‘ I venture to say that it is a libel on masters and mistresses to assert, as one honorable senator has said, that domestic servants are slaves. There may be some exceptions, but as a general rule, for the sake of their own comfort, masters and mistresses will pay a good servant adequately, and will do all they can to make her comfortable and happy. I am sorry that the Senate should have-seen fit to intrude this political matter into the home circle.
– Does not the honorable senator think that there are sufficient injurious distinctions placed on domestic servants at present without adding another to them?
– The honorable senator refers to the wearing of a cap by servants ?
– I refer to all the invidious distinctions made in the case of domestic servants.
– I do not know of any.
– Will the honorable senator tell me why a girl will give her services as a “lady help,” for half the wages she could get as a “ general servant”?
– The honorable senator does not know very much about the question. I very much doubt whether he could find one “ lady help “ for every hundred domestic servants.
– I can find plenty who will take service as “ lady helps “ for half the wages given to a “ domestic servant.”
– The honorable senator may find one here and there, but he will also find that in their own interests masters and mistresses, when they get a good servant will make her happy. After all, under existing conditions, if a servant is not suitable, she can be given a week’s notice. What the master and mistress will be able to do under this measure, goodness only knows. Probably their character will have to be scanned by the domestic servants’ union, and when they give a servant notice, the matter will have to be brought before the union, and so far as we can see, the same incalculable mischief will take place as now takes place with respect to persons in other occupations. I am happy to say that my experience is that while there may be a badservant here and there, the majority are very much the same as their masters and mistresses. I venture to assert that amongst employes and employers in New South Wales a majority will be found unfavorable to the Arbitration Act. One of the consequences of that Act has been the creation of fortysix secretaries of unions in New South Wales, all drawing salaries, and all with an incentive to promote disputes. It is becoming almost impossible for a manufacturer in that State to carry on his business on ordinary commercial lines or with any degree of comfort. I know there are cases in which the Act has done a great deal of good in certain matters, but, broadly speaking, wages are now no higher than they were prior to the passing of that legislation. In New South Wales at the present time there is greater depression than has been experienced during the last thirty years.
– And there is a Conservative Government in power!
– For some years, under the domination of the Labour Party, a Conservative Government indulged in an unwise expenditure which has injured not only New South Wales but the whole of the States. There is not a State which is not feeling the detrimental effects of the expenditure of£13,000,000 during the last five years in New South Wales under the domination of the Labour Party. In the same period the whole of the other States only spent£11,000,000.
– What has this to do with the Arbitration Bill?
– The expenditure was the result of the domination of the Labour Party.
– How can that be proved ?
– Every “baby” admits the fact. How can it be proved that two and two make four?
– By demonstration.
– The facts are not denied.
– The Labour Party in New South Wales is stronger now than it was then.
– But the Labour Party does not now hold the balance of power as a third party. If the Labour Party in the House of Representatives had not been the third party during the existence of previous Governments, we should not have had this Bill before us now. The expenditure in New South Wales has prejudiced Australia in the English money market.
– Does the honorable senator think that that has anything to do with the question ?
– Yes. I say that the Labour Party opposite have stated that if the Bill is passed they will use it as a lever by which to organize for the purpose of Collectivism; and that is exactly what the Labour Party were doing in New South Wales during the years I have mentioned. If the Labour Party carry out their intention, we shall probably have the same experience that the public had in New South Wales, with similar detrimental results to the Commonwealth.
– Can the honorable senator not blame the Labour Party for the drought ?
– I only attach blame where blame is due; but I do know that the Labour Party never moved a linger to . help those who were suffering by the drought.
– I thought the honorable senator would connect the Labour Party with the drought somehow.
– And I shall continue to so speak of the Labour Party until they show they possess some humanitarian instincts, and are desirous of acting for the community, and not for a class. I realize the great danger there is to the Commonwealth in the provision for preference to unionists. Such a provision takes us back forty or fifty years to the time when men in the old country had to fight against class domination. This infant Commonwealth is passing a law which will add to the unrest in Europe, especially amongst those whom honorable senators opposite do not like - the capitalists. Australia is regarded by capitalists as a place to remove money from, rather than as a place to invest money in; and this Bill will simply be another blow to the credit of the Commonwealth. My only hope is that it will receive its quietus, if not here, in the other House. If the Bill should pass, I hope the amendments regarding domestic servants, and preference, will be rejected ; and if that be so, I hope that, when the Bill comes back, honorable senators opposite will have the courage of their convictions, and vote against it, and thus rid us of this undesirable legislation.
– It will be remembered that the second reading of this Bill was carried on the voices. 1 was asked it 1 intended to vote for the second reading, and I said that I did, in the hope of amending the Bill in Committee. With the exception of one amendment, moved by Senator Pearce, I am sorry to say that, from my point of view, the Bill is worse now than when it was received from another place ; and under the circumstances, with a certain amount of reluctance, I shall have to vote against the third reading, though merely as a protest, because I know that the measure must pass. My objections, summarized, are those which I previously offered. I object to the principle of compulsory arbitration, to preference to unionists, and also to the inclusion of railway servants as an interference with States rights. Naturally, I regard the alteration in the proviso to clause 40 as very greatly the reverse of an improvement, too much being left to the Judge’s discretion as to whether preference shall be granted. I find it all the more necessary to enter a protest owing to the fact that one of the Melbourne morning newspapers, apparently under inspiration, insinuates that the amendments made by the Senate are to be accepted by another place. I hope, however, that will not be the case, though Senator Pearce’s amendment, which is only fair, might be accepted, because, in my opinion, industrial unions of both employers and employed ought to be placed on the same footing. It is refreshing to hear Senator Playford admit that he disapproves of the inclusion of railway servants, and I therefore hope, though I scarcely expect, he will vote against the third reading. The honorable senator had apparently forgotten that those States employes are already under the Bill. As Senator Gray has said, we have had further information during the last week or two in regard to the working of the Arbitration Act in New Zealand. During last week an Inter-State Conference of master bakers of the Commonwealth and New Zealand was held in Sydney, and the evidence there adduced shows that the Act in New Zealand is working very unsatisfactorily. At the conference a petition was prepared, and will probably be presented to this Parliament, asking that the compulsory clauses may be eliminated. From a newspaper report 1 find -
The petition sets out that in some of the States represented at the conference the trade had carried on, and was still carrying on, its business with satisfaction to themselves and their employees by means of voluntary agreement, and they respectfully submitted that both parties to such present existing conditions and agreements should be allowed to continue in the enjoyment of freedom to arrange and control them. The petitioners believe that the principle of voluntary agreement between employer and employee, which had hitherto been, found sufficient in building up the industries and developing the commercial enterprises of the important nations of Europe, including Great Britain, should best promote the peace and prosperity of both employer and employee.
We also know that the Worker, which is supposed to be the official organ of the Labour Tarty, is strongly in favour of this Bill being thrown out, and it is somewhat refreshing that this publication does not always support those who profess to believe in its policy. It may perhaps appear singular that so many senators from New South Wales should think it necessary to make speeches on the present occasion, but we are conscious that we represent a State in which the vast majority of people are disappointed with the working of an Arbitration Act, and expect their representatives to represent that feeling. In fact, the people of New South Wales go so far as to hope that there may be a joint dissolution of both Houses, so that there may be an opportunity to vote for or against compulsory arbitration.
– Did not the people have an opportunity before?
– No. I am glad to think that however much we in this Senate may differ in opinion on this legislation, “our personal regard, one for the other, has not been interfered with. I hope that. may continue to be a distinguishing characteristic of this Parliament.
– I understand that during my temporary absence Senator Walker has expressed the opinion, or the hope, that I shall be found voting against the third reading of this’ Bill. I can assure that honorable senator that he is wrong in his supposition. I shall support the Bill, not because I agree with every one of its provisions, but because I regard it as a very fair attempt to provide a tribunal which will act fairly in the case of disputes which extend beyond the limits of a State, and with which the authorities of one State could not effectively deal. It is easy to prophesy that capital will be driven out of the country in consequence of this legislation, and that its operation will be attended with dire effects. I do not believe that the prophesies will be fulfilled. In the case of almost every great reform in a country the same prophesies have been made. For instance, when the franchise was extended in England, in 1832, what was said? It was prophesied that the reform would bring ruination to the whole kingdom, and that England would become a desert. Just as those prophesies turned out to be false, so will the prophesies relating to this Bill. What has capital to fear from a Conciliation and Arbitration Act, which could only be putin force very rarely - possibly once in a blue moon - and when it was enforced, would prevent strikes which, unless prevented, would produce most disastrous results to the community. It is necessary to have a weapon to meet any such case.
– This preferential weapon ?
– Undoubtedly. I do not propose to discuss that question, which was fully threshed out in Committee, as I consider that a large amount of time has been wasted this afternoon. I have no doubt that those who made long speeches, which, though pertinent to a motion for second reading, are not supposed to be made at this stage, were very sincere in their statements. I give them credit for good intentions, but I do not intend to follow their example. I wish to allude to one important point. When the Bill came up from the other House it included certain people within its scope, and excluded certain people from its scope; it included railway and civil servants, and it excluded agricultural labourers, and domestic servants. The principle on which the Bill was drafted in that respect was wrong. It should not have included or excluded, anybody. The clause should have been drafted in accordance with the provision in the Constitution Act, which gives us power to legislate on this subject. If the clause had been left open in that respect, railway servants would have been included if they came within the scope of the provision in the Constitution. We should not have excluded agricultural labourers, or domestic servants, because if they come within that provision, they should not be prevented from receiving the benefits of this legislation. I do not believe that railway servants, although specially included, are really included, because I think that it is contrary to the Constitution to include them. Nor do I believe that domestic servants, although specially included, are really included. The term “ industrial dispute “ in the Constitution will exclude these people from the operation of the Act. Agricultural labourers will undoubtedly come within its provisions. What right have we to exclude any one whom the Constitution gives us the power to include in this legislation ?
– Because we believe it to be injurious.
– We had no right to include railway servants.
– Why were not policemen and soldiers included?
– Because they are not engaged in an industry. In legislating on the subject, we ought to follow the terms of the Constitution, and leave the interpretation of our law to the High Court.
– If we want to include Crown servants, we have to mention the Crown.
– I do not know that the High Court would be bound by ordinary rules. If the High Court finds that the Act interferes with States rights, and that the Constitution does not empower the Federal Parliament to include civil servants - for railway servants are really civil servants - it will rule accordingly. I do not think it will take the view that, because the Parliament has not specially included them as servants of the Crown, they do not come under the Act.
– They cannot get away from that old maxim.
– That is all I wish to say. I should be only too delighted if the Bill could be recommitted to strike out the reference to railway servants. Without that reference, we should have a perfect Bill, from which no one would be excluded who under the Constitution had a right to come under its provision. We have no right to exclude any members of the community. We ought to leave the provision absolutely open.
– During the progress of the measure through Committee various amendments were made which, in my judgment, can only be looked upon as extravagant, and for this reason I propose to vote against its third reading. It is unnecessary for me to go into detail with regard to those alterations. Repeatedly, during the course of this debate, when any protests have been made with regard to amendments that we desired, it has been assumed that I and others who believed with me had feelings which were antagonistic to the prosperity of labour. I repudiate any such idea. I see men being led into trouble by those who are mentally blind, and I raise my voice to warn them. I feel that the welfare of the men of Australia is not likely to be much promoted by this measure. I am heartily in favour of everything which will tend to conciliate and bring about reasonable and proper arbitration, but I am very much against anything which will tend to break the spirit of independence, which alone can make Australia the great country we all desire it to be.
Question - That the Bill be now read a third time - put. The Senate divided.
Majority … … 11
Question so resolved in the affirmative.
Bill read a third time.
– On a former occasion I promised Senator Pearce that there should be an opportunity to recommit a part of this Bill, and I now move -
That the Bill be recommitted for the consideration of a new clause 8a.
– I desire to move that clauses 72 to 77 be also recommitted. Those clauses deal with Trade Unions Marks.
– That is an amendment on the Attorney-General’s motion.
– The practice we have generally adopted has been that when an honorable senator moves for the recommittalof certain clauses, other honorable senators can move the addition of other clauses, and the whole of the clauses which it is proposed to reconsider are embodied in one motion.
– Not if there is opposition.
– I suppose not, if there is opposition.
– I am opposed to the recommital of the clauses mentioned by Senator Gould.
– Then I shall put the question -
That the Bill be recommitted for the consideration of a new clause 8a, on which an amendment can be moved to add also clauses 72 to 77 inclusive.
Senator Lt.-Col. GOULD (New South Wales). - I was under the impression that no objection would be raised. Perhaps I may be permitted to give reasons why clauses 72 to 77 should be recommitted. Those clauses provide that certain trade union marks shall be placed upon goods which are manufactured for sale.
– It does not provide that at all.
– The object is that goods made by trade union labour shall be marked to that effect. The object of a trade mark is not to indicate that a particular class of labour has been used in the manufacture of the article, but that the goods are made of a certain material, and are of a certain quality. Say that a man is manufacturing preserved fruit. He puts a trade mark upon his goods. The public then know that the goods are manufactured by a certain firm, and the trade mark is a guarantee of their quality. But we should not, in addition to that, allow a mark to be used which will indicate that the goods have been made by trade unionists, so as to induce the public to buy union goods only. The object can only be to prevent non-unionists from earning a livelihood. It is the same old game. The intention is to put into the hands of a certain class the power todominate everybody else. Of course, it may have the opposite effect. People may say that there is too much trade union domination, and that they will not buy goods which have a union mark upon them. But it is absolutely unfair that we should attempt to denominate goods as made by union or non-union labour.
– Why denominate any goods with a mark?
– If Senator Givens made certain articles, and put his mark upon them, it would be a guarantee of their quality and their material. That is the sole object of a trade mark. It is not a guarantee that a certain class of labour has been employed.
– People would not be compelled to buy goods that were marked with a trade union mark.
.- But that is what is attempted by indirect means.
– We want to show how good’s are made.
– I urge the Senate to recommit the clauses which I have mentioned. There is a strong feeling on the part of the public against this kind of restriction and interference. At all events, the clauses should be recommitted in. order that the Senate may reconsider both sides of the question. I therefore move -
That the following words be added - “ and for the reconsideration of clauses 72 to 77 both inclusive.”
– The concluding remarks of Senator Gould would lead the Senate to believe that both sides of this question have not been heard. The question was discussed at great length, and honorable senators had every opportunity to deal with it. Notice was given of my amendments for a considerable time before they were moved. But Senator Gould has sprung upon us his proposal to recommit the clauses in question. I am always loath’ to oppose a recommittal, if it is for the purpose of altering a Bill. But what does Senator Gould mean? He desires to have struck out the clauses which were inserted at my instance, not to improve them. Several honorable senators who voted for the clauses are not here to-day. Some of them are away on public business. Is it fair, in order to enable those honorable senators who had due notice of the clauses, but who were not attending to theirbusiness by being present, that we should now have a re committal for the purpose of striking them out? Several honorable senators, who are in favour of the clauses, would have been present had they known that they were to be attacked. But they thought that the question had been finally dealt with.
– I was not aware that the matter was coming on today.
– The AttorneyGeneral gave notice that the Bill would be dealt with to-day, but Senator Gould gave no notice of his intention to move for the recommittal of the clauses.
.- I did not. recollect that the Attorney-General told us that the Bill was to be considered to-day.
– I am not responsible for Senator Gould’s bad memory. The question has been sprung upon us. The recommittal is moved in a spirit of hostility, and to take advantage of the absence of several honorable senators.
– No, I object to that statement.
– I give honorable senators opposite credit for the best of motives, but the facts bear a peculiar construction, seeing that Senator Gould gave no notice of his intention. I ask the Senate to vote against the amendment, and thereby stop the attempt to kill the clauses, in the absence of many honorable senators who are in favour of them.
– I support the amendment, and I take the opportunity to thank Senator Drake for having on a former occasion, in my absence, taken charge of a new clause, of which I had given notice, dealing with this subject.
– It is desirable that we should have an opportunity to reconsider these clauses. No difficulty need arise because of the absence of two or three honorable senators who usually sit on the other side. Every one knows how they would be likely to vote, and I presume that pairs would be provided. I know of no objection which can be urged to the reconsideration of theseclauses.
– When, on the last occasion, there was a recommittal of this Bill, in order to effect some alterations where one or more unions are acting together, I indicated that in my opinion these clauses are in the wrong place. I do not think they should be included in this Bill. I tried on that occasion to persuade my honorable friends opposite that it would be very much better to eliminate them from this Bill and legislate independently in respect of what is sought to be dealt with here, as was done in New York, I think, where the State Legislature passed legislation of this character.
– The honorable and learned senator also said that he would oppose that legislation as vehemently as he opposed these clauses.
– I did. The honorable senator is light in stating that my persuasion would be equally applied to secure the rejection of such provisions if introduced by separate legislation. I wish it to.be distinctly understood that I am not in favour of the introduction of these clauses in this Bill. I do not consider them of any use to trade unions or to any one else. We are now, however, dealing with the question of their reconsideration, and whilst I was quite unaware of any intention to recommit them, I do not feel that we should be justified in refusing to Senator Gould, or to any other honorable senator, an opportunity for their further discussion, in view of the fact that they were passed in a thin Committee. There can be no harm in reconsidering the matter, and if any honorable senator desires that we should reconsider other clauses I shall be equally ready to assist him.
Question - That the words proposed to be added be added - put. The Senate divided.
Question so resolved in the negative.
Original question resolved in the affirmative.
In Committee (Recommittal) :
Provided further that any word or words, letter or figure, or combination of letters or figures, used as a trade mark, before the first day of January,1901, may be registered as a trade mark under this Act.
That proviso was inserted on the motion of Senator Best, following an analogy, I think, not merely in the Imperial Trade Marks Act, but also in the State Trade Marks Acts. As this Bill isnot yet in operation, the result of the proviso would be that it would carry back the right of registration to a mark which might not possess the characteristics necessary to entitle it to be registered under this new registration, but which simply had been in use for a period of some three or four years prior to the passing of this Bill. The result might be that we should have two provisions dealing with the right of registration in respect of user, one under the Commonwealth law, and the other between 1901 and the passing of this Bill, under States Acts, and this might lead to a condition of conflict. On that occasion I moved the elimination of the proviso, with a view of inserting a clause to meet Senator Best’s desire, that is, to provide that trade marks which have a title toregistration dependent upon user may still be registered, but that that user, if before the passing of this measure, must be such as would have given the right of registration in respect of the mark under the State law. I propose the insertion of a new clause to this effect: -
State at the commencement of this Act may make application for the registration of his trade mark under this Act.
That will provide for user under a State Act entitling a trade mark to registration under the Commonwealth Act. That is subject to the following conditions: -
That is, the State law is within each State to decide the user, which shall give the right to the registration of the trade mark, but on registration it would become a Commonwealth trade mark, and not a State trade mark. Then it is proposed to provide -
That is, of course, where there is a conflict as to State laws, and there might be some inconvenience. The period of user under administration would be limited if justice so required. That, I think, is desirable. The fifth provision is -
Where the trade mark, or a nearly identical trade mark, was at the commencement of this Act common to the trade in another State, the registration under this Act shall confer no exclusive rights in that State on the registered proprietor, and that State may be excepted from the registration under this Act.
These provisions Senator Best will find are in substance, so far as they are applicable to this title of user, a repetition of the provisions of clause 8, as already passed. They might have been incorporated by reference, but it has seemed to me better that we should repeat these words in regard to something which depends on a different title to that referred to in clause 8. I shall be glad to hear that this clause meets with Senator Best’s approval. In justice to the users of them, these trade marks are entitled to registration under this Bill, and to have their user protected if it would be such as would entitle them to registration under the State Acts.
That the following new clause be inserted : - 8a. “ (1.) The proprietor of a trade mark in use in any State at the commencement of this Act may make application for the registration of his trade mark under this Act. (2.) The application shall, subject to paragraphs (3),(4), and (5), of this section, be dealt with in the same manner as other applications for registration of trade marks. (3.) The trade mark may be registered if it could have been lawfully registered under the State Trade Marks Act in force, at the commencement of this Act, in the State in which the trade mark was then used had an application for its registration been made before the com- ‘ mencement of this Act. (4.) If the trade mark does not contain the es sential particulars required by this Act, it may, nevertheless, be registered subject to such conditions and limitations as to mode or place, or period of user, as the Registrar, Law Officer, or Court thinks fit to impose. (5.) Where the trade mark, or a nearly identical trade mark, was, at the commencement of this Act, common to the trade in another State, the registration under this Act shall confer no exclusive rights in that State on the registered’ proprietor, and that State may be excepted from the registration under this Act.”
– I thank the Attorney-General for the explanation he has given, and also for the trouble that has been taken in the preparation of the clause before the Chamber. I do not say that the clause completely effects what I desire, but it substantially does so; and if the AttorneyGeneral, and those assisting him in the Department, are of opinion that the provision now submitted carries out the intention, I am prepared to accept it. I explained to Senator McGregor and Senator Dawson, who were leading the Chamber when I introduced the amendment, that there were certain cases which were not provided for by the Bill, and which I desired to cover. The honorable senators I have mentioned were agreed on the principle of the amendment which I hurriedly drew up, and accepted the verbiage. The date, as I then explained, was an arbitrary matter. It was not possible at the time to fix any special dates, because the Acts of the various States came into operation at different times. We. thought it advisable to insert the 1st January, because that was the date when the Commonwealth Parliament was empowered to start to legislate. I think, however, it is more accurate to fix the dates when those various Acts came into operation ; and under the circumstances I am prepared to accept the amendment.
Amendment agreed to.
Bill reported with a further amendment.
Motion (by Senator Sir Josiah Symon) proposed -
That the consideration of the report be an Order of the Day for to-morrow.
– In fairness to honorable senators opposite, I wish to say that it is my intention, when the report comes up for consideration, to move the recommittal of the Bill for the reconsideration of the clauses to which I referred earlier to-day.
– I do not think the honorable and learned senator can do. that.
– I submit that I can, because the date has to be fixed forthe adoption of the report, and when that day arrives, or when the third reading of the Bill is proposed, it will be perfectly competent for any honorable member, under the Standing Orders, to move the recommittal of clauses 72 to 77. At any rate, I give notice of my intention to so move, so that there may be no ground for complaint. The question as to whether my motion is in order will be a matter for thePresident to decide.
Question resolved in the affirmative.
– I move -
That the Bill be now read a second time.
The purpose of this Bill, which, although very short, is of importance, is very simple; but the Bill, in carrying out that purpose, involves on the one hand considerations largely commercial, and of great interest to not merely the producers of the community, but to all shippers, and on the other hand involves a consideration of matters which are of a comparatively technical nature. In one sentence, the object of the measure is to prevent ship-owners from escaping liability for their own negligence. At present they give almost universally a contract for the carriage of goods which, by various stipulations, exempts them from liability. The position under those circumstances is that the ship-owners, who are, if not altogether, certainly very largely in combination - I do not like to use the term, but it is an expressive one - constitute in a certain sense a ring, and all being agreed, the producers or shippers are unable to get their goods transported to other countries unless they ship under those shipping contracts. In other words, the producers and shippers, particularly where they represent only individuals, are obliged to go to these companies for the purpose of having their goods sent away while the ship-owners have a monopoly of the transportation of goods. All the ship-owners being agreed as to the enforcement of these provisions, which are more or less detrimental to the business of the country, of course there is no competition. If a person wishes to send his goods away by ship-owner A, and finds a bill of lading of the character I have indicated, he says, “ I shall not ship under those terms,” but when he goes to ship-owner B, he finds that he is met with exactly the same terms, and therefore, so far as he is concerned, it is a case of “ Hobson’s choice.” This is not the first occasion when I have felt that this is a grave injustice. It is not a new-fangled notion on my part, simply connected with the introduction of the Bill, because, for years past, while these conditions have been gradually becoming more and more in favour of the ship, and less and less in favour of the shippers, I have always felt that it was a condition of things which ought, if possible, to be remedied. Attempts have been made at different times to test the question as to the reasonableness or otherwise of these conditions in courts of justice. But on all occasions the decisions of the Court have been in favour of the right - without dealing very much with the reasonableness - of the ship-owners to introduce these provisions exempting them from liability. The heavy and troublesome incidence of this has perhaps been more largely felt by single shippers or small producers, than by large shippers, who may be in a position to insist upon exceptional terms.
– And sometimes get a commission.
– That; too, is a matter which I think will have to be dealt with very soon by legislation. It also peculiarly presses, and has peculiarly pressed on the shippers of perishable goods. I do not wish to relate my personal experience. I know that in Tasmania, South Australia, and other States, in relation to fruit, these conditions have been felt to be extremely onerous, and the people who have complained may very fairly say that they are extremely one-sided. This Bill is the immediate outcome of representations made by a deputation which waited upon the Prime Minister on the, 15th October last, when most instructive and informing state- ments were made by various honorable members, and by various other gentlemen particularly interested in the fruit export business. I find that in a speech made on that occasion by Sir John Quick, who has taken a very deep interest in this question, and with whom I have had the satisfaction of conferring with regard to the frame of the Bill, and the best way in which to enact the provisions we contemplate to carry out the object in view, he said -
The industry, at present, was responsible for the export of 500,000 or 600,000 tons of fruit annually, and this amount could easily be increased to 1,000,000 tons, if proper facilities were provided. The great grievance of the fruitgrowers was that although they practically paid freights in advance, the shipping companies took no responsibility whatever regarding the safe carriage of the products.
There were at the deputation gentlemenfrom Tasmania, South Australia, and other places. Mr. Glynn gave an’ instance - which I dare say he could have multiplied - in which -
One of the Inter-State companies was sued in the Western Australian Courts for fruit damaged in transit, but the Judge held that the bill relieved it from all liability even if the goods were pilfered by the crew or the refrigerating apparatus were defective.
Mr. Wettenhall stated that
The Norddeutscher Lloyd Co., which traded to America, and was governed by the laws of that country, was the only company which’ accepted the liability, but there was another clause in its bills of lading under which the shipper had to agree to take any action under German law.
That is a state of things which I think will have to be stopped. This gentleman said -
On one occasion when a consignment was injured, complaint was made to the company, and the shippers were politely invited to proceed with their suit in the Courts of Germany.
– They protect the law courts.
– They protect their own law courts. I doubt very much whether they have the power to oust the jurisdiction of the Courts of the Commonwealth in- the matter. But assuming that they have that power, I think we must also take steps to prevent that which is simply an evasion of what we all desire should be fair conditions under which this export trade should be continued. In September last, there was a conference of fruit-growers in Adelaide, and from the Garden and Field of 17 th September, I propose to read a sentence or two from the conclusions they arrived at. First of all, the Western Australian trade is spoken of, and this Bill is as applicable to trade between State and State as to over-sea trade in products.
The difficulties experienced in connexion with the shipment -of fruit to West Australia have received considerable attention. Most fruit is carried on deck at owners’ risks, and a recent judgment of the Western Australian Supreme Court is that this even includes thefts by the servants of the shipping companies. Pilfering of fruit has at times reached serious proportions, but the shipper had no redress. The manner in which the cases of fruit are stacked and handled has at times been far from satisfactory ; but in this connexion we are pleased to state that as a result of requests made by a deputation consisting of the executive committee of this association and members of the Market Packers’ Association, the representatives of the InterState shipping .companies have undertaken to make certain alterations that should’ not only assist in .carrying the fruit in good condition, but also in preventing loss by ullage.
The ullage of fruit on steamers trading between Colombo - connecting with the boats from Australia - and other Indian ports formed the subject of certain requests to the shipping companies here, and we are advised that instructions have been issued to the agents at each port to take action to prevent, if possible, such losses in future.
The delivery of large quantities of fruit to England in bad condition, consequent upon neglect or fault of the ship’s officers, together with the low prices ruling for apples during the season, has brought before the public the very unfair conditions inserted in all bills of lading for fruit. The owners of these vessels charge shippers about double ordinary freights, but at the same lime repudiate all responsibility for exercise of reasonable care and attention.
The following extracts from the reply of one company sum up very clearly the position taken by the companies : - “ We regret to say those instructions, viz., to the officers in charge of re- I frigerating chambers, have not . been fully or sufficiently complied with. . . We regret we cannot accept any responsibility for the damage. . . Our steamers are entered in (he West of England Steam-ship Owners’ Protection and Indemnity Association Limited, and if you consider that any blame attaches to us, we think it best to refer you to our association.”
That is asking for bread, and getting a stone. All this has been the subject of discussion for a great many years. Meetings have been held with the shipping companies. Efforts have been made in conference with the shipping companies arid ship-owners generally to have some friendly arrangement which would be fair on each side; but all. this has been of no avail.
Until the Federation, there was a difficulty in dealing with the matter by legislation, because each State might legislate from its own point of view, with the result that no uniformity would be possible. One result of Union is that in this matter, and we hope also in the larger matter of navigation with which we shall have to deal before a very long period has passed, we are in a position to secure uniformity in what we think is fair play in regard to these, and perhaps, other conditions.
– If this legislation is successful, it will be a great benefit.
– I think it will be successful. No injustice or harm will be done to anybody. I have not noticed that there has been any outburst against this legislation. The only effect of what we propose to do in this Bill - and I believe effectually - is to prevent shipowners, from contracting themselves out of their own liability for negligence as carriers. There is no injustice. If a shipowner is not guilty of negligence, but if through various other circumstances damage is done, there is no liability whatever. This Bill does not make the shipowner liable. What it says is - “When you are guilty of negligence you are not to set up the defence that you are relieved from liability.” As I have already said, the subject has been discussed for many years past. We have some precedents to g-) upon. The Americans were a little ahead of the English Courts in respect to the general principles of law relating to this matter. The American tribunals used to hold that a provision in a bill of lading exempting a ship-owner from all liability for negligence, and; so forth, was not binding, because it was contrary to public policy. The American Courts held that before there was any Congressional law on the subject. The English Courts held the opposite view. They held that these stipulations were not contrary to public policy, that they were not against morality, and that, not being prohibited by any express law, the conditions were good. So that there was a conflict between two tribunals in countries speaking the English tongue, and both resting upon the common law of England.
– The American States strengthened the hands of the Courts.
– That being the state of things in these two great countries, both largely interested in shipping and in interchange between each other, the question came to the front about the year 1899, when the matter was in debate in the English Courts. The American authorities then passed a law - a positive law ; formerly the law was dependent upon the opinion of the Courts - which Wascalled the H arter Act. That Act was passed in 1893. That is the Act to which I think my honorable friend Senator Best alluded.
– That is so.
– Was it a Federal Act?
– Yes, it was passed by Congress. That Act in substance gave effect to what was the American jurisprudence on the subject previously, but made it a positive law, exactly to the same effect as we have embodied in this measure.
– I think that prior to that some of the States had legislated in a similar direction.
– There was a decision in Massachusetts, but that was by virtue of the general law, and not dependent on any express legislation. The Harter Act was the first Act of Congress passed on the subject. It still exists. It has worked well. The conditions in American bills of lading are considered by all mercantile people to be perfectly fair. This Act - I will not trouble the Senate by reading the whole of it - made it illegal for any master or owner of a vessel - to insert in any bill of lading or shipping document, any clause, covenant, or agreement, whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.
Then it provided various incidental matters to the same effect; and it also provided for the imposition of penalties for issuing a bill of lading with any such provision in it, the fine not to exceed $2,000.
– It may be necessary to do it in our Bill from a constitutional stand-point.
– At any rate, we are going to make this Bill effective. My honorable friend, Senator Best, has referred to .what took place in Massachusetts, and it has, I think, been the subject of some communication to the press, in connexion with what is known as the Missouri case. I have not seen the letter to which I allude, and which 1 believe was published this morning, but from what I hear it is based on an entire misrepresentation of the case, or upon an entire forgetfulness of the law when that case was decided in England, and the change in the law which was effected by the Harter Act. The provision in the bill of lading to which my honorable and learned friend has referred was void, not by virtue of any positive enactment, ‘but by virtue of the decisions of the American Courts, to which I have already alluded. Such was the law in the United States. We find that it was also adopted in the New Zealand Navigation Act.
– It is a wonder that it has not ruined New Zealand !
– That leads me to say - because I have made inquiries on the subject - that the New Zealand law has worked well, has been effective, and has been the cause of no complaint whatever so far as I have been able to ascertain ; nor has it been the cause of appreciably raising freights, as we were told would be the effect of such legislation. The New Zealand Act contains the provisions which we propose in this Bill, with the exception of one, which I think it right to mention, and which declares that the section making an agreement null and void is to have no effect unless the Court before which the question is tried “ shall judge the same to be just and reasonable.” We have not put that provision in the Bill, leaving it open to the tribunal to determine whether these conditions are fair and reasonable, because the very necessity for the law being that they are not fair and reasonable, to insert any such provision would be a perfect absurdity. The information which I have been able to get together shows that any difficulty which there may have been in New Zealand has been owing to that limitation. It was, so to speak, another loop-hole to the ship-owner to provide litigation, and therefore to give rise to difficulties and trouble wherever a shipper alleged that his goods were damaged by the negligence of the ship-owner. In all the legislation to which I have referred, live stock has been excluded, and we exclude it from the definition of “ goods “ in this Bill for obvious reasons. There has been no demand in respect of live stock, and there are difficulties in that connexion, as honorable senators will notice, which it is not wise for us to deal with now, but which we can deal with if we think it desirable when the general question of navigation comes up for consideration.
– The shipper can insure live stock.
– That is another consideration.
– He can insure other produce.
– Not perishable produce.
– Besides that, let the ship-owner insure against negligence, if he pleases. It is very much easier for the ship-owner to effect insurances than for the ordinary shipper, particularly shippers in a small degree. I wish to add, further, that such being the state of legislation in America and New Zealand, and, so far as we are able to ascertain, the provisions having worked in the interests of what is fair and just, these provisions were inserted in the Navigation Bill which was introduced in the Senate at the beginning of the session. Senator Guthrie made a remark the other day, by way of analogy in respect of some clauses which he sought to introduce in the Conciliation and Arbitration Bill, that this matter was being dealt with separately, and that therefore his clauses might be dealt with separately. But this matter has been separated from the Navigation Bill because of the urgency of it. All of us will be greatly indebted to the report of the Navigation Commission, and I am sure that we shall be glad to reconsider even this matter, if in the interval any experience should be gained which would enable us to make the Bill more effective. I should also like to mention - so that honorable senators will see that there is ample precedent- that similar provisions are contained in the English Railway and Canal Act, section 7, which was passed, I think, in the year 1854. So that it is no new thing even in England to try to put a stop to conditions of this character in the interest of persons who hand over their goods in good faith to companies to be carried - to insure them against all possible negligence, and to require that the companies shall exercise due and reasonable care in respect of them. That is all we ask. Let the companies be careful, and accept responsibility if they are careless. Honorable senators will find the following provision in the Act to which I have referred : -
Every such company, as aforesaid, shall be liable for the loss of or for any injury’ done to 1 any horses, cattle, or other animals, or to any article, goods, or things in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability, every such notice, condition, or declaration being hereby declared to be null and void.
So that we have the precedent of America, the example of New Zealand, and the example of England herself in regard to railway and canal matters. We also have the example of our own Navigation Bill, which contemplated dealing with this subject, as well as with very much larger matters. I think that that is all I need say. I hope that I have made clear the purposes of the Bill, the existing law as I understand it, and the amendment of that law which this Bill will effect. Honorable senators will see that the object of the Bill is to provide that the man who takes charge of our goods shall be liable to be careful of them, and to prevent him from stipulating that, however’ negligent or careless his employe’s or himself may be, he shall escape all liability for the damage or loss to which our goods are subjected.
– As the honorable and learned senator has the Missouri case before him, he will perhaps explain it.
– There are two cases in which diametrically opposite decisions have been given. The first is the Missouri case, and the second the Montana case, tried in America. In the Missouri case, a ship carried goods from Boston under a shipping contract, and loss resulted. Action was brought in the English Court, and Mr. Justice Chitty decided that it appeared to him that it was the intention of the parties that the English law should govern the matter, and the Court of Appeal upheld his decision. On the other hand, in the Montana case, which was decided by the Supreme Court of the United States, the decision upon an exactly similar condition of facts was that the American law should prevail.
– It could not be otherwise; that was quite consistent.
– It does not strike me as being very consistent.
– They were barracking for their own country.
– Honorable senators mean that the decision was according to the flag.
– Undoubtedly. It is perfectly consistent.
– That simply means that one must make his claim in the country in which it is likely to be acknowledged.
– One proceeded in the American Courts, and another in the English Courts. In the English Courts it was decided that there was no remedy, and in the American Courts it was decided that there was.
– I think that my honorable and learned friend will find that there was another and very much more fundamental reason for the decisions given. I believe that if the Harter Act had been in force at the time when that shipping contract was made at Boston, the English Court would have decided exactly the opposite of what it did decide. If’ my honorable friend will read attentively the very interesting judgments in the case, he will find that if there had. been a positive law prohibiting these conditions, the English Court would have decided differently.
– Would the English Courts uphold American law?
– The English Courts will do so now certainly. I have not the remotest doubt that such a decision as was given in the Missouri case will never again be given in England.
– If the contract is made in America?
– Yes, since the passing of the Harter Act. That is why I say, with all deference to him, that the gentleman who has been writing to the press on this subject has quite misunderstood the case, and has overlooked the subsequent legislation of 1893, four years later, which created a positive law, which the Court of Appeal looked for in vain in the Missouri case.
– Surely, whether it was by statute or by the common law, or what we might call the case law of America, it was all the same?
– My honorable and learned friend will find that it is not so if he reads the case. He will see that the American Courts were not bound by the English decisions, nor were the English Courts bound by the American decisions. They were not bound by the American decisions that these conditions were bad as against public policy, and they therefore said that they were not bound by that law, but they said that if the conditions were prohibited by any positive law, the position would be different.
– Ido not remember that.
– Did they not also say that it was very evident that the contracting parties wished the law of England to apply?
– They did.I need hardly say that I have very carefully weighed all these authorities in dealing with this measure, and I have some slight amendments to propose in Committee with a view to make assurance doubly sure. With respect to the point referred to by Senator Dobson, and with which I have already incidentally dealt, I am aware that the Court in England rested its decision largely on the fact that the evidence satisfied it that the parties in America intended to be bound by the law of England. It is not for me to say anything by way of criticism of that view, but I think the English Court went rather out of its way to find a reason, if I may say so, to support the flag. I believe that this Bill, if it should become law, will be beneficial to exporters, and will be effective.
– Has the Attorney - General considered whether the ship-owner might not make some contracting-out conditions with regard to perishable products as against general cargo?
– I think not. We have made it general.
– I thought it was usual all over the world to make some distinction between perishable and general cargo.
– No ; if the ship-owners profess to carry perishable cargo, they must carry it safely. Some, of course, will refuse to carry perishable cargo.
– Apples and fruit are perishable cargo.
– Then the ship-owners must make provision for it. They must be careful, but, of course, the extent of their diligence and care is another matter. I do not propose to go any further with the measure this evening than its formal committal. As I have indicated, I have one or two amendments to propose when we get into Committee.
– This measure, which is one of real importance, has been introduced by the Attorney-General in a most lucid manner.
I may say at once that I donot think any steam-ship company in the world can find any reason to object to the ground on which this measure is put forward by the honorable and learned senator. As he has said, it is sought simply to obtain from all shipowners full care, and if that be given, no claim can arise under this Bill. Honorable senators will admit the importance of this measure, in view of the distance of Australia from the great consuming markets of the world. In this matter, the distance of America from Europe is insignificant, as compared with the distance between Australia and Europe. Because of the extreme distance between this country and Europe there is the very gravest need that every care shall be given in the conveyance of perishable goods. I think the AttorneyGeneral said that in a Western Australian Court it was held that under certain InterState bills of lading a consignee could not recover for pilferage. That is reducing carrying to an absurdity. So far as oversea carrying is concerned, I believe that there is not a ship arriving in Australia from oversea the agents of which will not meet claims for loss on this account. It is, I believe, a universally recognised practice in regard to oversea shipping to meet claims for loss by reasons of pilferage.
– On general cargoes?
– On cargoes of every description from oversea. I should be surprised to hear of any shipping company disputing a claim for lossoccurring through pilferage while goods have been in their care. The clause’s of this Bill will need to be considered carefully in Committee, but so far as I can see, the general object of the measure is good, and it will impose no great hardship upon the shipping trade. I believe that the more important shipping companies will rather be disposed to welcome anything which will put the shipping trade on a sound footing.
– I should like to compliment the AttorneyGeneral on the manner in which he has explained the provisions of this Bill. It is one of the most important measures which could be dealt with by the Commonwealth Parliament. Its real importance is, perhaps, known only to those who have had some experience of the disabilities under which shippers labour, by reason of the framing of billsof lading. When I tell honorable senators that there are sixtydifferent forms of bills of lading, each of which makes the conditions of shippers more stringent in regard to the goods they ship, they will realize that it is almost impossible for any shipper to ship goods under any conditions except those which allow for total loss. This applies not only to perishable goods, but to goods of all kinds. I can give an illustration which may convey to honorable senators what shippers have to put up with under existing conditions. A certain firm in New South Wales was building large glycerine works, and ordered from England a very valuable and delicate piece of machinery. To insure that that machinery should arrive safely - not only because of its value, but because of the fact that if anything happened to it in its transit it could not be repaired in the Commonwealth, and the whole of the firm’s plant and works would have to remain idle until it was sent back to be repaired, and then returned to the Commonwealth - the parties who shipped the machinery took every possible care. They went to the shipping office, and laid before the authorities the facts with respect to the value of the machinery, and paid the full insurance premium demanded. The shippers at the other end gave the firm to understand in the most explicit terms that their instruction would be faithfully carried out. This piece of machinery had a dome, and, therefore, the freight measurement was very large in proportion to the dimensions of the machinery. When this machinery arrived in Sydney it was simply smashed to pieces. Instead of carrying out the instructions of the shippers, those in charge of the ship allowed heavy cargo to be put on top of this machinery. Application was made by, the firm in Sydney that they should be recouped the value of the machinery, and the agents of the ship explained that, while they were very sorry, they could not, owing to the fact that the bill’ o’f lading covered negligence and practically everything else, admit the claim. Solicitors were employed, but it was found that the bill of lading covered everything. It was only by action on the part of a firm at home, with a large connexion with the insurance company, that pressure, which smaller firms could not bring to bear, was successfully used in order to get some recompense for the shippers. That is an instance which applies .to every shipper, whether of perishable or other goods ; and similar hardships have been borne for many years. The present condition of things results in serious loss, not only to manufacturers and others who import machinery, but to the Commonwealth as a whole. This Bill I regard as one of the most practical that could be devised in order to bring about an equitable adjustment. As Senator Pulsford has said, we are 13,000 miles from England, while America, for instance, is only 3,000 ; and we here ought to be placed in such a position that those who cultivate the soil and ship goods, shall have some guarantee that those goods will arrive at their destination in safety. The Bill will certainly be most valuable to the commercial and producing classes of Australia.
– The Bill is small and good, and in both these respects it is quite appropriate that it should apply, perhaps, more closely to Tasmania than to any other State in the Commonwealth. The shippers of Tasmania have suffered for many years in the absence of a measure of this sort. The Bill aims at curing a grievance that shippers, of apples especially, have felt against all shipping companies. If any neglect takes place in connexion with the preservation of the temperature in the refrigerating chamber, the cargo of apples suffers, and up to the present time, in every case of carelessness, shippers have been confronted, although there are five different shipping companies, with the same kind of bill of lading. The shipment of goods in refrigerating chambers is carried on wholly at the risk of the shipper, the shipping companies refusing to accept any liability for the preservation of the temperature, which varies as much as from 32 deg. up, to 70 deg. Cases are numerous in which heavy losses have been made, and last season especially, the losses would be represented by many thousands of pounds. The oversea trade, no doubt, is chiefly aimed at.
– The Inter-State trade is also important.
– I was going to say that in another sense, this is essentially a Federal Bill. In shipping apples, or other fruit from Tasmania to Western Australia, or Queensland, shippers are confronted with similar difficulties to those associated with the oversea trade, and they have been unable to land the fruit in good condition, in spite of the greatest care and precaution on their part. Shipping companies have been neglectful, but under the terms of their bill of lading they hav; always avoided responsibility. Clause 3 emphasizes what the Attorney-General has said. The honorable and learned senator pointed out that this legislation is of a kind which must be Federal, and clause 3 shows that it is to apply only to goods shipped from any place in Australia to any place outside, or from one State to another. In one sense, that clause emphasizes .the Federal aspect, because it is left to each State to legislate with regard tol shipments from ohe port to another within a State.
– I do not think .the States have that power.
– I have no doubt on the point ; and it might very properly be asked why that limitation is imposed. The reason is that if the Government of Victoria, for instance, desired to improve the shipping laws which dealt with the bringing of produce from, say, Warrnambool to Melbourne, they would be at liberty to do so.
– Does not the Constitution hand over to the Commonwealth the laws relating to ships and shipping?
– That is when the Commonwealth has made laws ; and that it has ‘not yet done.
– The Bill does not prevent a State legislating in regard to its own shipping, any more than it prevents a State legislating in regard to its own railways.
– The Constitution does not give the Commonwealth express power to deal with the railways.
– If my opinion is worth anything, I can assure the honorable senator that this Bill does not interfere with the States, which are at liberty to legislate in regard to shipping within their own territories. The Attorney-General told us that he proposed to make certain alterations in Committee; and in my opinion we ought to have the word “ illegal “ before the words, “ null and void.”
– I am going to move that amendment.
– I am glad to hear that. While I agree that our jurisdiction would in all probability suffice in the case of a German-owned ship, still, if by the insertion of the word “illegal,” we can make this matter absolutely certain, it is desirable that we should insert it.
– The insertion of that word will not make the Bill apply to foreign shipping.
– I think if will. In ray opinion, the insertion of the word “illegal” will make the Bill “ air-tight ‘’ and “ water-tight,” and we shall have a full and complete remedy against any foreign; owned shipping.
– It does not matter what the nationality, such an agreement could not be made in Australia.
– Whatever the nationality, the word “illegal “ will be effective, and will attain the object which every senator desires.
– Is that not an abandonment of free-trade principles?
– - I do not think so ; I can hardly see how free-trade obtrudes itself, except by the mouth of Senator Higgs. No Tariff question, in my opinion, is involved in the Bill. Short and simple as the measure is, and unanimously as we wish it to pass, I do not think that during this or the last Parliament we have dealt with any measure likely to have a more practical or beneficial result in the several States. I regret that any members of the Royal Commission on the Navigation Bill should have, perhaps, felt that by the introduction of this measure we have slightly trespassed on their territory. I much doubt if any entertain that opinion; but if there are any who do, the answer is that we desire to have the Bill passed as soon as possible, without waiting for the result of any prolonged inquiry. We cannot expect, as the outcome of the Royal Commission, a Navigation Bill before the next fruit season, which is close upon us; and if the Bill before us be passed within the next week or two we shall have done very good work.
– I congratulate the Government on the introduction of this measure, which I regard as a very welcome addition to the small amount of Socialism we have already obtained. I also desire to congratulate the Attorneygeneral on the clear and lucid explanation he gave of the principles of the Bill, and of the manner in which its provisions will work. But while we have a chorus of approval on the Opposition side, a Bill of this nature in regard to other matters would, under other circumstances, be denounced by those .honorable senators as an unwarrantable interference with private enterprise - as an unwarrantable interference with the sacred and blessed principle of freedom of contract. Honorable senators opposite continually extol private enterprise and freedom of contract, and yet we now have the extraordinary spectacle of their “going back “ on all their preachings, and declaring that private enterprise must be limited and curbed.
– Does the honorable senator think that their “going back” on their principles is extraordinary?
– rAfter our experience, I do not know whether I am justified in regarding their attitude as extraordinary, but there is no doubt it would so appear to the average man not in politics. Honorable senators opposite have, times out of number, told us that private enterprise is the great uplifting force of society, and that it has made the commercial greatness of the nation to which we belong.
– That is, well-regulated private enterprise.
– We on this side are denounced for claiming that private enterprise requires regulating. We have just passed the third reading of a Bill, the arguments in favour of which all came from this side. We said, and said truly, that power to enter into contracts should be limited so that contracts may not be detrimental either to the Commonwealth as a whole or to individuals.
– The honorable senator is not in order in referring to another debate during this session.
– I am obliged to you, sir, for calling my attention to the Standing Orders. I do not think I need refer to the matter any further ; but I am glad to see that honorable senators opposite recognise that it is desirable at times to limit freedom of contract. Where freedom of contract is likely to work, as it has in the shipping trade, to the detriment of producers and shippers, and consequently df the community as a whole, the law should step in and regulate it. The only fault I have to find is that the Bill was not introduced and passed long ago, because great harm has been done, and great loss has ensued from the want of such legislation. Shipping companies have, by contract, placed themselves outside the ordinary as well as common law ; they have accepted no liability for any act of neglect or negligence which caused the destruction of goods and inflicted .loss upon shippers. That was grossly unfair. Therefore, I think it is extremely desirable that their freedom of contract should be limited. While we on this side are willing to give honorable senators opposite the fullest possible assistance to limit the power of big shipping companies, corporations, firms, or individuals to work an injury to the community, it is only fair that when we ask for similar concessions for the ordinary workers, they should be ready to help us to see that injury is not inflicted upon them simply because they are the poorest members of the community, and have the least means of defending their rights or maintaining their position. Senator Clemons considers that the limitation that the law shall not apply to goods shipped from port to port in a State is a wise one. I do not hold that opinion. I believe that the laws of the Commonwealth with regard to bills of lading and other subjects should be uniform. If we do not have uniform legislation on this subject, what will be the result? The result will be that we shall have a Commonwealth Act dealing with bills of lading in respect of goods carried in over-sea ships, and between State and State, and an Act in each State dealing with the bills of lading in respect of goods carried from port to port in a State. It is not desirable that there should be that surplusage of legislation, when we know that the object may be accomplished in one measure. I wish to say a few words with regard to the Inter- State traffic. The ships which take goods from port to port in a State mostly take goods from State to State. It is to the interest of ship-owners that there should be one concise law on this subject. If we have half-a-dozen different laws in the Commonwealth, it will lead to much confusion, and will accomplish no good object.
– This small Bill was introduced as a matter of urgency, to cure an admitted evil, and it need not necessarily be comprehensive. In a short time we shall have a Navigation Bill, which may be made comprehensive.
– The insertion of three or four words in clause 3 would make this Bill accomplish all I am contending for.
– It is extremely controversial.
– I do not think so. I do not believe that any State would object to the alteration. I am quite certain that Queensland would be willing to conform to a general law in that respect. On its coastline of 1,500 miles the trade is almost entirely carried by the ships which are engaged in the Inter-State trade. I fail to see why there is any necessity to exempt from this Bill the ships which are engaged in purely State trade. Iri Queensland the carriage of fruit, butter, potatoes, onions, and other perishable articles is very large indeed, and it is extremely important that these goods should be carried as carefully as possible, and with as little loss as possible to shippers and consignees. I am perfectly certain that Queensland would welcome a measure which applied to purely State trade, as well as Inter-State trade.
– Queensland can pass its own Act.
– We are told by honorable senators opposite that certain Bills are only the beginning, and will lead somewhere. They have objected to certain Bills this year because they would lead to Socialism and Collectivism. I suppose that for the same reason they will vote against this measure.
– - Why is the honorable senator so unhappy because we support this Bill?
– I wish to point out the inconsistency of honorable senators opposite. When it is a case of doing anything for working men they are opposed to the proposal ; “but when it is a case of doing anything for wealthy men they are all in favour of the proposal.
– Is not this Bill in favour of working men?
– It is in favour of the propertied classes - of those who have something to ship. The working man has nothing but his labour to sell, and honorable members opposite are nearly always against him; but they are all in favour of the man who has something to ship. I hold in my hand an extract from the Age of 22nd November, which reads as follows: -
The Sea Carriage of Goods Bill came under review at a meeting of the Chamber of Manufactures last night, when the President (Mr. C. Atkins) remarked that the measure served as a reminder that the. shipping combine would have to be reckoned with. A member of the chamber, he said, had pointed out that it cost more to send agricultural machinery from Melbourne to Adelaide than to import it from New York. For the same reason Western Australia imported goods from Europe and America. All this was a big “blister” on Inter-State trade. One shipping company, he was told, paid 30 per cent., and was building new vessels. Cargo paid for all that. The Ship-owners’ Federation had stated that the result of the proposed legislation would be to increase the freights. “ Sooner or later,” added Mr. Atkins, “ we shall nave to run cargo boats of our own.” On the motion of Mr. W. A. Hartnell, seconded by M. G. H. G. Warrington, the chamber decided to support the Government in the matter.
The President of the Chamber of Manufactures has publicly stated at a meeting of that body that the ultimate result would be that “we”- that is, the State - would have to go in for cargo vessels.
– Did he mean the State or the merchants themselves?
– The State.
– I think that he meant the merchants.
– The Chamber of Manufactures, as a body, has no capital.
– Probably its members have capital.
– At any rate, Mr. Atkins says it means Collectivism. He points out that, as a result of this legislation, it is very likely that the shipping companies will raise the freights. If that is likely to be the result, Senator Gray should vote against the Bill, because he voted against another Bill on the ground that similar legislation had produced a certain effect in New Zealand.
– Why does the honorable senator try to induce Senator Gray to vote against the Bill? ‘
– I am only pointing out the inconsistency of Senator Gray. He gave it as a reason for voting against a Bill, which had for its object the betterment of the condition of the mere workers, that a similar measure in another country had had an absolutely opposite effect to that which was claimed here, because he said the manufacturers, the producers, and the shippers all combined and raised prices. Now that the president of the Victorian Chamber of Manufactures claims that a similar result is likely to flow from the operation of this Bill, will he vote against its second reading on that ground? No. Because he knows that it is in the interests of the particular class he represents - the propertied class.
– I represent, I hope, the Commonwealth.
– I hope that in the future the honorable senator will be consistent, and vote to give the workers the same justice, the same fair play, and the same rights as he is prepared to give to the propertied class. This Bill will be a great boon to almost every State in the Commonwealth. Each year every State has a very large quantity of perishable produce to get rid of oversea. .Fruit is not the only product to be considered. From every State, except Western Australia, a considerable quantity of rmit is shipped, and f dare say that it will be largely produced in Western Australia in time to come. Throughout the enormous length of our coast-line, almost every conceivable kind of fruit can be produced in abundance, from the tropical fruits in North Queensland down to the European and English fruits in Tasmania. We have almost every variety of climate along the coast. Each State, so far as I know, is a very large shipper of fruit. Therefore, it is important from its point of view, that it should be carried as safely, as quickly, and with as little damage as possible. And, therefore, this Bill will be warmly welcomed. I believe that dairy produce is even of more importance than fruit. The way in which the dairying industry has been developed in the Commonwealth within the last few years has been a revelation. The discoveries of modern science have rendered almost every climate suitable for the production of dairy produce. Dairying is being successfully pursued in the tropical portions of the Commonwealth, as well as in New South Wales, Victoria, and Tasmania. It is extremely important that the utmost facilities should be given for the proper handling and the safe carriage of goods to the markets at the other side of the world. There have been a great many evils connected with this traffic in the past, and this Bill will help to minimize them. The freights are so high that the industries in Australia are very heavily handicapped. This Bill cannot touch the question of freights, but if the companies continue to charge too high a freight, the result may be that the people will go in for cargo steamers of their own. I hope, however, that the shipping companies will be reasonable in time, and will make such concessions as, while allowing themselves a fair margin of profit, will also be fair to those who supply the cargoes. I hope that the Bill will pass, and be effective. I believe that it will be as effective as the Attorney-General has predicted.
– I am sure that the Senate is indebted to the AttorneyGeneral for the informative speech with which he introduced this measure, and it is a source of satisfaction tq know that there is not a single dissentient voice in the Senate with regard to the desirableness of making it completely effective. The only thing we have to consider, therefore, is whether the Bill -will be completely effective in the direction sought ; and I think that it is our duty, as far as we can, to indicate any doubt we have on the subject, especially for the consideration of the AttorneyGeneral, because I am quite certain that he is only £00 anxious to hear any suggestions and to consider them.
– Hear, hear.
– Speaking for a moment on the subject of the measure, there is not the slightest doubt that bills, of lading have become so onerous and so unjust to shippers that they have become simply intolerable; and if we can grant substantial relief in that direction to our producers, we shall gain their approval and do justice to the community generally. Turning once more to the legal aspect of the matter - and that is the feature to which I desire to direct the attention of honorable senators - I am not so satisfied as my honorable and learned friend the Attorney-General is, that the Bill is completely effective. I say so with the greatest deference to his experience and well-known legal acumen. First of all, I point out that certain legal principles are laid down in the case which was referred to in the course of the Attorney-General’s remarks. I wish to direct the attention of honorable senators to these principles, and subsequently to draw their attention to certain features of the Bill which, in mv opinion, make it less effective than it might be. The Missouri case is reported in volume 42 Chancery Division, page. 321, and the head note to the case is as follows : -
When a contract is made in one country to be performed wholly or partially in another, primâ facie the contract is to be construed and enforced according to the lex loci contractus ; but the Court will look at all the circumstances to ascertain by the law of which country the parties intended the contract to be governed, and will enforce the contract accordingly, unless it should contain stipulations contrary to morality pr expressly forbidden by positive law. A contract was made in Massachusetts, U.S., between an American citizen and a British company of shipowners, by which the company undertook to carry certain cattle from Boston to England in a British ship. The contract contained a clause that the company should not be liable for the negligence of the master or crew of the ship. Such a clause is valid by English law, but void by the law of Massachusetts, as being against public policy. The cattle were lost by the negligence of the master and crew, and the shipper claimed against the company for the loss : - Held (affirming the decision of Chitty, J.) that the contract itself showed that the parties intended it to be governed by English law, and that the stipulation exempting the company from liability through negligence of their master and crew not being immoral or forbidden by positive law, but only void under the law of Massachusetts as being against public policy, would be enforced by an English Court : and the claim was dismissed.
Certain general principles are laid down in this case.
– I think it says “ in the absence of any positive law.”
– It was the law of Massachusetts.
– But there was no positive law.
– Bills of lading of the character described were not prohibited (by positive law. The Harter Act became Statute law shortly afterwards. What was said was that the law of Massachusetts was so-and-so, but as the bill of lading was not contrary to public policy, the Courts would not regard that law. The point which I wish to emphasize is this : Whether it is positive law, or simply law which is ascertained and created by precedent, it is laid down in this case that if the parties intend that their transaction shall be regulated by a particular law, then, that having been once asserted, it will be governed by that law. Consequently, I wish to point out that, notwithstanding the passing of this Bill, it may be possible for a German company to say to a shipper, “ We are prepared to carry your goods at a very low freight “ - they may tempt .’producers in this way - “ and we will exercise every care, but we must not be punished if by any chance it is held that we are negligent. We can give our personal assurance that we will be as careful as we can, but we cannot hold ourselves liable, even if our servants may be negligent ; and you must agree with us that we are to be bound by the German law so ‘far as this contract is concerned.”
– They cannot do that.
– Would not this Bill make such an agreement illegal in Australia ?
– Illegal in AustraliaYes. Of course, the Attorney-General has intimated his intention to alter the Bill in that direction. I welcome that suggestion and desire to make the measure stronger in every way. ‘
– I think the Bill will be effective as it is, but it will be more effective if altered as suggested.
– I am not satisfied that it will be effective as it stands In the case which I have quoted it was held practically that the parties can agree amongst themselves as to the law by which they are to be bound.
– Oh, no.
– In the absence of positive law.
– I think it goes almost as far as that. It was held -
The contract itself showed that the parties intended it to be governed by English law, and that the stipulation exempting the company from liability through negligence of their master and crew, not being immoral or forbidden by positive law -
– This . is a positive law that would forbid them.
– We must go a little further - but only void under the law of Massachusetts as being against public policy, would be enforced by an English Court; and the claim was dismissed.
My honorable and learned friend the Attorney,General will be aware that there come to these shores what are known as tramp ships. They may come once or oftener, but they may have no agents here who are liable for what they do. If a law of this kind is enforced there will be a disposition to have no recognised agents for such ships in Australia.
– That may be so.
– These ships may change hands from time to time. I admit that I am straining the point, but honorable senators will feel that I am justified in straining it in order to look at the matter from every aspect.
– We must make the Bill absolutely without a loophole.
– That is the only object I have in view. These tramps would have no recognised agencies here, and there would be no means by which an unfortunate (shipper could make recovery from them. They interfere most seriously with other shipping companies, who are prepared’ to obey the law of the Commonwealth, and who are honestly endeavouring to carry on under fair conditions. If tramps of this kind are permitted to come in and under-cut, the other companies are put to great disadvantage. I wish to mention one other feature of the case. I do not mention it with any degree of confidence, but it is just as well to refer to it. As far as the German companies are concerned, they may enter into an agreement with shippers to the effect that they are to be bound only by German law. Whether such an agreement would be held to be illegal or not I will not pretend to say, but I will tell the Senate another thing that may be attempted, not only by foreigners, but by British shippers. They may say, “ We are prepared to give you a bill of lading whereby we will be liable for negligence within the limits of the Commonwealth, but as soon as we get outside those limits that condition is not to prevail,” I am not certain that they could not do that, and I submit the point for the AttorneyGeneral’s consideration. Section 5 of the Constitution says that -
The laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth. lt is limited so far as the operation of such laws are concerned to British ships, whose first port of clearance and port of destination are in the Commonwealth. Ship-owners will struggle to find a means of evading this measure, because to escape from liability is really a part of their religion, and they will make every effort to find a means to contract themselves out of the measure. Consequently I submit that point for the consideration of the Attorney-General. The question is how these contingencies shall be met. In its present form the Bill provides that-
Where any bill of lading or document contains any clause, covenant, or agreement whereby - there is an attempt to escape from liability, the clause, covenant, or agreement shall be null and void and have no effect.
– The AttorneyGeneral proposes to add the words “ or illegal.”
– What I think is that the clause should be altered so as to provide that every shipper from Australia shall be entitled to a receipt on putting his goods on board, and that that receipt shall, on the face of it, contain an admission that the owner, charterer, master, or agent of any ship, or the ship itself shall be liable for loss or damage - following the words of the Bill. Then I should say that any person receiving goods and neglecting to give a receipt containing this admission should be liable to a penalty to be prescribed, and we might make it as large as honorable senators please. That would give an immediate remedy. If Australian produce were received on board a ship, and any attempt was made to contract out of liability in any shape or form the penalty prescribed would be at once incurred, and it could be recovered next day. In this direction, I think there is room for improvement in the Bill. What I suggest would put the matter in an affirmative form.
– What is that?
– To get an admission of common law liability on the face of a bill of lading. It- is not necessary.
– It is necessary, because of the efforts which might be made to contract out of liability.
– We should have as complete common law liability without that, as with it.
– What I suggest would be a direct assurance to the shippers and the public that if any attempt was made to evade liability the company would be liable to a penalty.
– Is not the bill of lading itself a receipt?
– I do not care whether it is called a “bill of lading” or a “ reciept.” What I desire is, that by whatever name it is called, it shall include an admission of liability.
– It would be an additional contract.
– It would be an additional contract, and an additional assurance. I feel that if the Bill is passed in its present form means will be found to evade its provisions.
– How long, before the ship sails does the honorable and learned senator intend that this bill of lading shall be handed over?
– What I suggest is that a receipt containing the admissions I have referred to shall be given immediately on the deposit of the goods in the ship. If there should- be any attempt at evasion of liability proceedings could be taken at once, and the persons responsible would be liable to the penalty. I have taken the idea from the American Act, to which the AttorneyGeneral has referred. Under that Act, if any attempt is made to evade responsibility for negligence in any bill of lading of an American ship the person making such attempt is liable to a penalty of $2,000. I suggest that we should adopt the same principle, and I think it would be found to prove specially effective. I submit these suggestions for the consideration of the Attorney-General.
– I believe that’ the fruit-growers of Tasmania are watching the progress of this Bill with a very great deal of interest, and that they would like me to thank the Prime Minister -and the Attorney-General for the promptness with which effect has, been given to the promise of the Prime Minister to deal with this matter at once. I think we are all agreed that we should pass the Bill, but I do not believe that any one can prophesy what its results will be. I hope it will be found to be beneficial to fruitgrowers and shippers generally, but I am inclined to think that with regard to the carriage of fruit, butter, and meat in refrigerating chambers, the pass-, ing of this Bill may ‘ help us to negotiate better terms outside this measure. I am inclined to think that in this respect we shall be better served in the way I suggest than by the strict letter of the Bill itself. I direct the attention of the AttorneyGeneral to what I regard as a practical difficulty. I have no experience of the way in which fruit is shipped from Victoria and South Australia, but in Tasmania I know that the Peninsular and Oriental and Orient companies will not bother to make contracts for the carriage of 10,000 cases for one man, and of 100 or 200 cases each for a number of small shippers, who may” be desirous to test the English’ market. We have, therefore, for years past had a practice in vogue by which these companies supply seven ships each every year, and the whole of the contracting for freight is done with Jones and Company and Peacock and Company. These firms contract with the owners of the steamers for the whole of their’ space, and they let it out to the orchardists with whom they do business, and from whom they buy fruit.
– Do they get any commission from the steam-ship companies?
– I think that they make a shipping charge of 2d. or 3d. per case. They make the usual charges which merchants make in arranging for freight for wool or for any other goods.
– And they have lost thousands of pounds.
– I know that in some years they have lost very largely.
– I suppose they have grown rich on their losses.
– No, they have not. 1 am aware that in some years they have had a very bad time of it. These shipping companies, in dealing with the Tasmanian fruit trade, have to do with the two firms I have mentioned, and I believe it will be found that they will not enter into any * contract under the terms of this Bill ; that is to say, they will not sign bills of lading in Tasmania;- Should this Bill pass, what will there be to prevent the shipping companies cabling to the firms to whom I have referred, “ If you wish to have your fruit carried next year, you must instruct your agent in London to sign bills of lading there? “
– They cannot get a clearance without a bill of lading.
– A bill of lading signed in London might be sent out here. I have heard of cases “in which a high rate of freight has been quoted owing to the law,* and a much lower rate of freight when the ship-owners have been enabled to contract themselves out of the law. I am inclined to think that the shipping companies ‘ will find some way Of contracting themselves out of the provisions of this Bill. I can quite understand that on the precedent of the Missouri case, which I hastily read before the adjournment for dinner, if a bill of lading was signed in Australia after the passing of this Bill, a Court in England would hold that it was the intention of the Peninsular and Oriental Company and the Orient Company, and the shippers in Australia, to be bound by the Australian law.
– Suppose that by their contract they said they would not.
– (They could not do so.
– They might do so.
– I have said that I am inclined to think the shipping companies will never sign a bill of lading under this Bill. So far as I know, there always has been, and there always must be, a distinction made between perishable goods and general cargo that ‘is not perishable. I think we shall be going too far if, in this Bill, we make no distinction between these two classes of cargo. It may be said that a distinction is made in the matter of freight ; that a higher freight is charged for perishable goods than for general cargo; but even though a higher freight should be charged, I believe that ship-owners will shrink from taking upon themselves the whole of the liability for the safe delivery of perishable cargo. In the case of fruit there is sometimes an inherent tendency to perish, which cannot be discovered when it is’ snipped. We have only to look at our experience of last year to know that. Last year, a great deal of fruit reached home in a bad condition, owing not to any negligence on the part of the ship-owners, but to the softness of the fruit, and the fact that it had been grown under conditions of too much rain and too little sunshine. That is not the experience only of Tasmania. I have obtained the same experience at my lodgings. I was talking to my landlady about some Jonathans which I fancied, and for which she paid so much per pound. I suggested that , it would pay her better to buy her fruit by the case, and she said, “ No, if I bought a case of Jonathans the bottom row would be going bad before we reached it.” I asked the reason for that, and the answer was that it was because the season had been so wet. We must all admit that ship-owners have behaved in the most selfish manner in contracting themselves out of liability which they should justly undertake, and for which they are paid. But it must be admitted that there is something to be said in their favour when they have to deal with enormous quantities of perishable fruit, which has no appearance of being perishable when put on board.
– That will be a question for evidence and proof.
– If Senator Clemons will consult the ship-owners they will tell him that there is a vast distinction between general and perishable cargo. I should like to ask the Attorney -General whether he thinks the clauses of the Bill, as now drawn, will apply to the refrigerating chambers in which meat, butter, and fruit are carried ?
– Certainly I do.
– I am in some doubt on the point. There is no reference in these clauses to refrigerating chambers, and no one accustomed to existing laws and the holds of vessels, under old conditions, would dream of applying the law to a chamber in which scientific experiments are carried on, and delicate machinery is in use to make the chamber suitable for the carriage of butter, fruit, and meat. I think that the Bill should deal in an unmistakable way with the two different classes of cargo - cargo which may be carried in the general hold, and that which must be carried in a special part of the ship fitted with delicate machinery to secure an even temperature throughout the voyage. When we are dealing with refrigerating machinery it appears to me that there will be great difficulty in deciding whether there has been neglect. If we suppose, for instance, that the proper temperature for the carriage of fruit is from 36 to 42 degrees, and every now and then the temperature in the refrigerating chamber may be 35 or 43 degrees, the fruit might reach its destination in a damaged condition. Who on earth is to tell whether the damage was caused by the chamber being one or two degrees below or above the stipulated temperature, or whether it was the result of an inherent fault in the fruit, which developed on the way home, and which no one could have foreseen?
– The shipper will have to show negligence on the part of the shipping company; if the loss is due to an inherent defect in the fruit, there is no negligence.
– I am putting a case which the Attorney-General hardly answers. I, first of all, suggest that this Bill does not specifically apply to refrigerating chambers, and I do not think it is fair to talk about a hold, when what is meant is a hold specially prepared.
– The honorable and learned senator will see that the Bill speaks not only of the hold, but of any other part of a ship, and the latter will include a refrigerating chamber.
– I ask whether in the ordinary acceptance of the word, a hold is a refrigerating chamber?
– Is a refrigerating chamber not another part of a ship ?
– I admit that it is; but a refrigerating chamber is something besides a hold; there has to be delicate machinery to keep the refrigerating chamber working.
– That is simply good stowage to keep the goods cool.
– The AttorneyGeneral alluded to the very usual complaint that goods are damaged because they have not been properly stowed ; but I do not think his reply gets over the difficulty. What does the Attorney-General think of the suggestion that the Peninsular and Oriental Company, or the Orient Company may insist upon bills of lading being signed in London. If that is done, and fruit carried, I do not see how those companies can be made liable under this Bill.
– Would the English Courts recognise our law?
– I do not think the English Courts would, in regard to a contract made in England, because that contract would be under English law. Another practical point is that, to some extent, shipowners have met shippers in what has hitherto been considered rather a fair manner. I do not know the exact terms, but the ship-owners have in some instances, when fruit has been landed in bad condition, handed back is. 6d. per case. Whether that is or is not a fair arrangement, I am not prepared to say ; but I am inclined to think that the outcome of this legislation will be that we shall have to take the side of the ship-owners a little. I admit that in the past the ship-owners have entirely and selfishly had regard only to their own interests, and bills of lading have been getting more strict in their favour as against the shipper. The matter I expect will have to be considered, and, seeing that shipments in refrigerating chambers are so full of risk, I fancy this Bill will help us to negotiate some terms of compromise which will be a great boon to all concerned.
– I think there is a great deal of force in the suggestion made by Senator Givens^ that some provision should, if possible, be made for ships trading from port to port in a State, such, for instance, as Queensland. I am a little doubtful, however, whether we have power to legislate in that connexion - whether that is not a matter purely for State control. According to section 51 subsection 1 of the Constitution the ‘ Commonwealth Parliament has power to make laws with respect to “ trade and commerce with other countries and among the States.” Whether that means in a State pure and simple, I am not quite clear. Senator Givens made one remark, however, which I was sorry to hear, namely, that Senator Gray and others on this side were only thinking of themselves in their support of a measure of this sort. That remark comes with ill grace from Senator Givens, inasmuch as that gentleman has supported preference to one section of the community, as opposed to others ; it is like “ Satan reproving sin,” or the “pot calling the kettle black.”
– I did not say anything of the kind. What I said was, that honorable senators opposite were” prepared to look after the particular interests of the class they represented; not that they were looking after themselves.
– When the AttorneyGeneral replies, I shall be glad to know whether he thinks it would not be perfectly within our power to make this Bill applicable in cases where goods are shipped from port to port within any one State. I notice that the Constitution provides that the Commonwealth Parliament may legislate with respect to “ Banking other than State banking,” and “ Insurance other than State insurance.” The question arises whether the Constitution does not contemplate trade and commerce other than trade and commerce within a State. According to sub-section xxxix. of section 51 of the Constitution, the Commonwealth Parliament may legislate in regard to matters “incidental to the execution of any power vested by this Constitution in the Parliament.” I think it, therefore, possible that it may come within our power to regulate the shipment of goods from port to port within any State.
– As some one has already said, there will hardly be a dissentient voice in the’ Chamber with regard to this Bill, at any rate, so far as concerns the object which the Government are endeavouring ,to achieve. But, unlike Senator Givens, and other honorable senators, I fail to see that there is in the Bill any trace of what is called Socialism.
– What does “ State control “ mean ?
– There is no attempt to introduce State control ; all the Bill purports to do is to attach to or to impose upon a certain class of contracts, which are ordinarily entered into in Australia, certain conditions which have not hitherto always attached to them. It is provided, as far as possible, that those shall not be conditions out of which either party may contract themselves. There is nothing in the nature of State control proposed ; the object is simply to attach certain incidents to what are known as freight contracts.
– It is an interference with freedom of contract.
– That is so, undoubtedly ; but interference with freedom of contract and Socialism are to” my mind very distinct. This is an interference with freedom of contract, and, in my opinion,- a very necessary and justifiable interference. In our commercial relations there are many forms of contract in which it is necessary the State should interfere for the protection of the people as a whole. If concessions, are granted to a railway company to con struct a railway, or. to a tramway company to construct and operate a tramway, one of the conditions of the grant is generally the imposition of a certain scale of fees or charges which shall be regarded as the maximum. That is done in the interests of the public, and it is an interference with what is known as freedom of contract, but an interference that is absolutely justifiable. As pointed out by Senators Clemons and Dobson, Tasmanian producers are very much interested in the Bill. I believe with Senator Dobson that Tasmanian producers will hail this Bill with a great deal of satisfaction and gratitude to the Government for introducing it, even at this late stage of the session ; and I earnestly hope that the objects the Government have in view will be achieved. Senator Dobson made reference to perishable products, and he laid great stress on the fact that in order to carry such products, ship-owners have had to embark in some very large expenditure to provide accommodation. Senator Dobson pointed out that unless we make some distinction in the Bill between perishable and non-perishable products, we shall not be conserving the interests of the shipowner, or even doing justice to him. With regard to the distinction which exists between perishable and non-perishable products, the shipping companies recognise it to such an extent that ‘ they invariably make a very marked distinction between the freights they impose on the two classes of goods. While we still leave them to do that, we may attach to the contracts for the carriage of goods, perishable or nonperishable, such conditions as are contained in the Bill - a condition, for instance, that they shall not endeavour by any express stipulation to contract themselves out of their responsibility, for doing what? For carrying the. goods safely, and with ordinary diligence and care. If perishable goods, by reason of an inherent defect, are not landed in proper condition, the shipowner will be, no more responsible than he is at present. It will ‘ be purely a question of evidence - a question of what has been the cause of the loss. If the loss is owing to an inherent defect in the goods, the shipowner will not be responsible, and if it is sought- to make him responsible, the plaintiff will have to produce evidence, and satisfy the Judge, and possibly a jury, that the cause was entirely the neglect of the ship-owner.
– That is all right, but the ship-owner will not take that view.
– Undoubtedly, he will, and he will discriminate in his charges between perishable and non-perishable good’s. It has been said, though I do not know that we have heard it in this Chamber, that one of the results of this legistlation will be to raise freights enormously, seeing that shipping companies will have to protect .themselves - will have to, so .to speak, provide an insurance fund in order to pay claims from which they have hitherto been free. I could understand that being used as a legitimate argument against this legislation, but I cannot understand how Senator Dobson can ask the Senate to contemplate the possibility of the Peninsular and Oriental and Orient companies insist^ ing. upon bills of lading being signed in London.
– Before they get the goods !
– How could that possibly be done in regard to exports from Australia ?
– It could be done by telegraph.
– A signature could not be sent home by telegraph?
– It could be sent by power of attorney, or not under seal.
- Senator Gray, in the course of an interjection, said that the shipping companies have always known how to look after themselves, because they have always had the best of advice. Perhaps Senator Dobson may be able ‘ to give the shipping companies such advice, or establish some device, by which they may carry out what , he thinks is possible. What needs emphasizing in connexion with the Missouri case is that the whole ground of the decision was what law the parties in the opinion of the Court, had in contemplation when they entered into’ the contract. Following out that argument, Senator Best has pointed out that it is quite possible that, even if this’ legislation .were passed, and a contract were entered into here, it .might be held elsewhere that the law of Australia did not apply. I agree with him. I should like to draw the attention of the Attorney-General to some of the possibilities to which Senator Best adverted. He referred to the possibility of the companies taking the goods and contracting that they would be liable so long as they were within the limits of the Commonwealth, but that outside its limits they should be subject either to the law of their own country or to some general maritime law - to whatever law should be considered in an outside port to apply to them. There is a great distinction, it seems to me, as to what law applies in the case of a contract entered into abroad. I propose to read an extract.on this subject from Foote’s Private International Jurisprudence. In the case of the Peninsular and Oriental Steam-ship Company versus Shand, the marginal note is - “ Law of contract referred to intention of parties “ ; and that is precisely the same principle as was adopted in the decision of the Missouri case. In elaborating the marginal note, Foote goes on to say, at page 311 of the last edition -
With regard, then, to the nature of the obligation itself, and to the incidents which arise in the course of its development, there must be some one law which the parties intended to be referred to should necessity arise. This law is determined in different cases by different considerations, but the rule most generally adopted undoubtedly is, that the law of £ne place where a contract is made must govern the relation which arises out of it. This is not the rule, however, because of any inherent right or obligatory force in that law, but because that is the law to which the intention of the parties must primâ facie be supposed to have looked. Thus, in the Peninsular and Oriental Steamship Company versus Shand where the contract is made in England for the carriage of a passenger with luggage from Southampton to the Mauritius, and itwas contended that the liability of the carriers was governed by the French law tn force (here, it was said by Turner, L. J., in delivering the judgment of the Privy Council, “ The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the Power there ruling, or as temporary residents owe it a temporary allegiance; in either case equally they must be understood to submit to the law there prevailing, and to agree to its action upon their contract. . . . Their Lordships are speaking of the general rule ; there are, no doubt, exceptions and limitations on its applicability, but the present case is not affected by these.
It will be seen that the law of the place in which the contract is entered into is con sidered as the law governing, not the contract in its entirety, but the relations which arise out of the contract, for no other reason than because it is the law to which the intention of the parties must, prima facie, be supposed to have looked, It all turns upon the question of what was the intention of the parties. It is mentioned in the judgment that there are, no doubt, exceptions and limitations to this general principle, and one exception shows that in a certain class of consequences arising from a contract it is a very different rule altogether. I allude to the case of Lloyd versus Guibert, which is referred to at very great length in Foote’s Private International Jurisprudence, and which I believe is good sound law to this day. In that case it is stated on page 312 : -
It is generally agreed that the law of the place where the contract is , made is primâ facie that which the parties intended, or ought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought to prevail in the absence of circumstances indicating a different intention. As, for instance, that the contract is to be performed elsewhere, or that the subject-matter is immovable property situate in another country and so forth.
The general principle being that the law of the place where the contract is entered into is, primâ facie, supposed to be the law governing the contract, the decision in” this case goes to show that if there is any indication of intention on the part of the parties that that rule shall not prevail, but that the law of any other country shall apply, then that indication of intention overturns the general principle which has been held in the case of the Peninsular and Oriental Company versus Shand-
– It goes even further than that. There is great doubt as to the law of the place where the contract was made governing, because in the case of the Peninsular and Oriental Company versus Shand the original Court held that the law of Mauritius applied, but that was subsequent v upset by the Appeal Court.
– Even as the law stands, with the addition of this statute, we cannot be at all certain that Australian law will be held to apply to these contracts. On page 313 of this work the distinction is drawn -
So far as unforeseen incidents of the obligation are concerned, the principle appears plain enough, and it is clear that the law will generally have to supply the defective intention of the parties by presuming some law to have been intended generally ; but accepting it as a general rule that contracts are governed, in the developments of their incidents subsequent to the making by the law of the place of celebration, it must be remembered that is a rule peculiarly open to exceptions. The intention of the parties is the crucial test, and in contracts of ‘ affreightment, for example, it has been decided that the intention of the parties is to submit themselves to the law of the ship’s flag so far, at least, as sea damage and its ‘ incidents are concerned. The principle seems, indeed, applicable to all unforeseen incidents of the obligation save those which arise out of performance.
There is the distinction. A contract ordinarily entered into abroad is interpreted in another Court by the law of the country in which it was entered into, so far as the ordinary incidents relating to its performance are concerned. But in a contract of affreightment it is held that the intention of the parties shall not be bound by the law of the country in which the contract was entered into, but by the law of the ship’s flag, and so far as contracts of affreightment are concerned, more particularly in regard to damage at sea and all its incidents, the law of the ship’s flag is the law which is primarily held to apply.
– And that is the Missouri case over again.
– It is in this regard, that in the decision they presume that it is the intention of the parties that the law of the ship’s flag shall apply. The present position of the law, therefore, is that if a contract were entered into in Australia with a German or French ship, and the goods were damaged in transit between this country and some place abroad, and a case arising out of that incident were taken into an English Court to-day, it would decide that the law applicable to the case was the law of the ship’s country.
– I do not think so. Supposing that the action were brought in an Australian Court?
– I am speaking of a case in which the action was taken in an English Court. All these contracts would not be entered into by companies such as the Norddeutscher Lloyd. Vessels might come here which would not be represented here by anybody except a local agent, who would have no assets belonging to the owners in their possession, and no guarantee of their bona fides.
– As a rule, such ships have no’ cooling chambers.
– Some of the tramps have.
– It would not necessarily be confined to goods which had been sent home in cooling chambers.
– The tramps take wheat.
– I recommend, with all respect to the consideration of the Attorney-General, that position which has been decided in those two cases, that although the law of lex loci celebrationis applies to a case of the ordinary development of the incidents of a contract, yet in a contract of affreightment it has been held that the law of the ship’s flag applies.
– I do not think that that is the law. “The law of the ship’s flag “ is used two or three times in that case, but I think that the phrase is altogether misleading. It is not used as part of the decision.
– The decision in the case of Lloyd v. Guibert stands good to this day, and the judgment occupies about eleven pages in this text book.
– “The law of the ship’s flag “ cannot mean all that we derive from the phrase, because we are under the same flag. If it were the law of the British flag the law of the contract here -would apply.
– Yes, but “ the law of the ship’s flag,” so far as a British company was concerned, would be the law of the United Kingdom.
– Oh, no. It must be taken with a modification.
– This provision would be still inoperative.
– It is the maritime law of the Empire. .
– We differ from other parts of the Empire. We cannot do it effectively, I contend, if the authority of these cases still hold good.
Lloyd v. Guibert was a case in which the contract of affreightment was a charter party entered into at St. Thomas, a Danish West India Island, between a British subject as charterer and the master, acting for the French shipowners, of a vessel then at St. Thomas, for a voyage from St. Marc, in Hayti, to Havre, London, or Liverpool (ultimately the latter), at the charterer’s option. On the voyage to Liverpool, the ship had to put into a Portuguese port for repair, and the captain there gave a bottomry bond upon the ship, freight, and cargo. On the ship’s arrival at Liverpool, the-holder of the bond sued upon it in the Court of Admiralty. The ship and freight were insufficient to satisfy the bond, and the deficiency, with costs, fell on the plaintiff as owner of the cargo, for which he sought indemnity against the defendants, the French ship-owners. By the law of France, abandonment of the ship and freight absolved the defendants from all further liability on the contract of the master, and they had in fact so abandoned the ship and freight to the plaintiff as owner of the cargo. By the English law, they would have been liable to indemnify^ the plaintiff notwithstanding the fact of such abandonment. It was contended for the plaintiff that the decision ought to proceed either (1) upon what was called the “ General Maritime Law “ as regulating all maritime transactions between persons of different nationalities at sea ; (2) upon the Danish law, as the lex loci celebrationis, the law of the place where the contract was made ; (3) upon the Portuguese law, as the law of the place where the bottomry bond was given (though it is difficult to see how this could have been called in to regulate the rights of the parties on a contract made before the ship came into a Portuguese port, and without any expectation of her doing so) ; or (4) the English law, as being that of the place of final performance by the delivery of the cargo, the lex loci solutionis. By all these laws the liability of the defendants was established. The French law alone was relied on on behalf of the defendants ; and it was contended that this law must be applied either because the character of the transaction itself showed that the plaintiff impliedly submitted his goods to the operation of the law of the ship, and, therefore, contracted with reference to it.
Ultimately, in giving the decision, Mr. Justice Willes went through the different contentions, and having examined the laws of the different countries, he decided that the law of the ship’s flag - the law of France - should apply, and the defendants were held free from liability. During the course of the judgment, he said -
Moreover we are not satisfied that there is any such general concurrence of mankind, that shipowners should be absolutely answerable personally for the acts of the master.
He quotes Pothier upon the affirmative and Emerigo on the negative rule. After going through the documents in the case, and the different cases, he came to the conclusion that the law of the ship’s flag would govern the case. It must be remembered that the contract was not entered into in France, but was entered into in the Danish West Indies; that the charterer was to have a voyage from St. Thomas to Havre or Liverpool ; that he selected Liverpool ; and that the vessel never touched French territory. Ultimately the holder of the bond seized the ship at Liverpool, and there was a deficiency, which fell upon the plaintiff, as the owner of the cargo. Plaintiff, the charterer, relied upon Danish law, Portuguese law, and’ English law, and upon what was called, in vague general terms, the general maritime law as governing the relations of parties in these matters. After an exhaustive analysis of the reasons for the applicability of the different laws, Mr. Justice Willes held that the law of France, because the vessel was a French vessel, should govern in this instance, and consequently the plaintiff failed to recover. It was a very lengthy judgment, but the concluding words of it are, for our purposes, important. I will quote them -
The inconvenience and even absurdities which would follow from adopting the law of the place of contract in preference to that of the vessel, are strong to prove that the latter ought to be resorted to. No inconvenience comparable to that which would attend an opposite decision has been suggested. The ignorance of French law on the part of the charterer is no more than many Englishmen contracting in England with respect to English matters might plead as to their own law in case of an unforeseen accident. Nor can we allow any weight to the argument that this is an impolitic law, as tending to interfere with commerce, especially in making merchants cautious as to how they engage foreign vessels. That is a matter for the consideration of foreigners themselves, and nothing short of a violation of natural justice or of our own laws, could justify us in holding a foreign law void because of being impolitic. No doubt the french law was intended to encourage shipping by limiting the liability of ship-owners, and in this respect it goes somewhat further than our own ; but whether wisely or not, is matter within the competence and for the consideration of the French Legislature, and upon which, sitting here, we ought to pronounce no opinion. Exceptional cases, should they arise, must be dealt with upon their own merits. In laying down a rule of law, regard ought rather to be had to the majority of cases upon which doubt and litigation are more likely to arise ; and the general rule that, where the contract of affreightment does not provide otherwise, there, as between the parties to such contract, in respect of .sea damage and its incidents, the law of the ship should govern, seems to be not only in accordance with the probable intention of the parties, but also most consistent and intelligible, and therefore most convenient to those engaged in commerce. In order to preclude all misapprehension, it may be well to add that a party who relics upon a right or an exemption by foreign law is bound to bring such law properly before the Court, and to establish it in proof. Otherwise the Court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.
– Was that decision before or after the Missouri case ?
– Before the Missouri case.
– The Missouri case does not quite follow it.
– Yes, it follows the principle that the Court looks to the intentions of the parties, and the Missouri case says that, so far as the parties are concerned, their intention is to be taken to be governed by the law of the place where it was entered into. This case says that the intention of the parties in case of sea damageis to be presumed to be governed by the law of the ship’s flag.
– Does the honorable and learned senator think that the mail boats will contract under this Bill?
– Unless we can make special provision that they do contract under this Bill, I am afraid that, if a case went into an English Court, as it might well do, it would be held that the law of the ship’s flag applied; and if the ship was an English ship like aPeninsular and Oriental or an Orient vessel, and a case was tried in England - as it might be - I am afraid that the company would escape responsibility.
– If they signed a bill of lading in Australia, they would come under this Bill.
– These decisions say that they would not. I have tried to point out that it is all a question of intention.
– If one of the mail companies signed a bill of lading in Australia, their intention would be governed by Australian law.
– I am not saying that we cannot frame our legislation in such a way as to make them liable to our law; but it seems to me to be unquestionable that if the provisions of the Bill are not made more stringent, so as to make these contracts expressly subject to our law, it might be held, even in an Australian Court, on the strength of these decisions, that, so far as sea damage is concerned, the contract between the freighter and the ship-owner is governed by the law of the country of the ship’s flag.
– That might be argued, but I do not think successfully.
– I am inclined to think that it might be argued successfully. I submit the point to the Attorney-General in the hope that some consideration will be given to it with the object of making assurance doubly sure. We are all in sympathy with the object of this proposed legislation, and desire to make it air-tight and watertight. It is for no other reasons that I put these considerations before the Senate, and I feel certain that the Attorney-General will give them his attention.
Senator Sir JOSIAH SYMON (South Australia - Attorney-General). - In the first place, I desire to remark that there is complete unanimity as to the desirableness of this measure, and also as to making it effective for the purposes intended. I am exceedingly indebted to honorable senators who have discussed the subject from the legal point of view. My honorable and learned friend, Senator Dobson, has been extremely pessimistic as to the prospects of its efficiency ; but I can assure him that his pessimism is not well founded, and that I have complete confidence that this measure, even if passed as it stands, would be effective. But I intend, to move one or two amendments which will, I think, shut out the possibility of escape, and will give additional assurance to every one. I do not take the same view as Senator Keating does, that after the passage of the Bill, a decision such as that in the Missouri case would be again given. I do not think it would be. I think, on the contrary, that this would be a positive law, which would come within the exceptions laid down in that case by the present Lord Chancellor, when he declared that the existence of a positive law would have a totally different effect from the conditions then applicable. My honorable and learned friend, Senator Best, has directed attention to the provisions to which I have already alluded in the Harter Act, as to penalty. Personally, I have no objection to imposing a penalty. But Senator Best wishes to make it obligatory that there shall be in the bills of lading an admission of the common law liability. The penalty ought, however, to be imposed upon the illegal introduction of exemptions from that liability. I will consider between now and the Committee stage the points which have been raised. I desire again to express my thanks to Senator Keating and to Senator Best for their valuable advice. I will take their questions into consideration.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause1 (Short title) agreed to.
– I have to lay on the table a report from the Standing Orders Committee on the Parliamentary Evidence Bill, with appendix. The report is short, and I will ask the Clerk to read it.
Report read by the Clerk, and report and evidence ordered to be printed.
Senate adjourned at. 10.15 p.m.
Cite as: Australia, Senate, Debates, 23 November 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19041123_senate_2_23/>.