2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
Senator WALKER (New South Wales).With the indulgence of the Senate, and taking advantage of standing order 394, I desire to explain a matter of a purely personal nature. On ‘ Thursday last, when Senator Stewart was speaking to Senator Givens’ motion on the sugar industry, I made an interjection which, not improbably, was somewhat hurriedly and indistinctly uttered, because as it appears on page 7684 pf Hansard, it conveys quite a different meaning from what I intended -
The probability is that the banks had joined in several bonds.
As it is apparently too late to make the necessary alteration in last week’s issue, which I did not see in Sydney until Tuesday of this week, I take this opportunity of placing on record what- I intended to say, and what I believe I did say in effect, namely -
The probability is that where the banks made any such advances they held as security the joint and several bonds or. guarantees of substantial persons*
As I have the greatest admiration for the wonderful accuracy of Hansard in general, I have felt considerable reluctance in mentioning this matter, but as an old bank officer, naturally I do not like to be misunderstood on a point of banking practice.
Senator Sir JOSIAH SYMON laid upon the table the following paper : -
Regulations under the Defence Act, Statutory Rules, 1904, No. 71.
– I beg to give notice that on Thursday next I shall move the following motion : -
I wish to ask the Attorney-General if he will afford me an opportunity to bring the matter before the Senate?
– I am unable to make any promise to my honorable friend as to the time for the discussion of his motion, but, at a later period, when I have an opportunity to consider the state of public business, I shall endeavour to do so.
– He ought to get the same privilege as Mr. Deakin in another place.
– I am not Mr. Deakin ‘s keeper.
– Under standing order 102. I beg to notify the postponement of notice of motion No. 1 until 15th December, next motion day.
– The notice of motion attempts to anticipate the discussion of two orders of the day, and, not being in order, it cannot be postponed. I do not think it ought to be on the noticepaper at all.
– I am referring to notice of motion No. 1.
– I beg the honorable senator’s pardon. He is alittle premature, because we have not yet come to the stage for re-arranging business.
– Pardon me, sir, but under . standing order 102 it is in order.
– The honorable senator is a little too early.
At a later stage,
.- Will you, sir, forgive me if I call your attention to standing order 102 ?
– I have not overlooked that standing order ; but I am alluding to standing order 62. If the honorable senator will look at it he will see that the order of business each day is -
When we come to the re-arrangement of business the honorable senator will be in order.
.- Now I beg to give notice of a motion for the 15th December, next motion day.
– The honorable senator must read the motion.
– It reads as follows : -
To call attention to the report of the Select Committee on “ Privilege - Case of Senator Lt.-Col. Neild,” and to move the following resolution in reference thereto, viz. : - That the Select Committee on Privilege - Case of Senator Lt.-Col. Neild - having reported-
That Major-General Hutton recommended that Lt.-Col. Neild be placed upon the Retired List of the Military Forces of the Commonwealth, partly for military reasons and partly ‘in consequence of speeches delivered by him in this Senate ; and (2) attempted to interfere with Senator Neild in the discharge of his duties as a senator, this Senate affirms -
– I understand that the honorable senator is reading notice of motion No. 4.
– I am giving notice of a motion for next motion day.
– But it is the same as notice of motion No. 4.
-Col. Neild. - Yes, sir.
– This notice of motion cannot be on the notice-paper at the same time with two orders of the day, which seem to me to refer to the same question. There are four standing orders, the intent of which is to prohibit the Senate from discussing twice over the same question. Numbers 126 and 195 state that the same question cannot be twice discussed, and numbers 118 and 405 prohibit the Senate from anticipating any notice of motion or order of the day which is on the noticepaper. The object of the four standing orders is to prevent the same matter from being discussed twice over. The honorable senator now wishes to give notice of a motion which is, in effect, at all events to a certain extent, the same as two orders of the day.
– And a notice of motion.
– The honorable senator, I understand, intends to abandon that notice of motion.
– He has not done so yet.
– No ; but it is quite competent for an honorable senator to give notice of a motion identical in terms with a notice of motion on the notice-paper, provided that he will abandon t)he l’atter. What I wish to point out is that the honorable senator desires to place on the noticepaper a notice of motion which will, in effect, lead to the discussion of the same question as is contained in two orders of the day. An order of the day - is a Bill or other matter which the Senate has ordered to be taken into consideration on a particular day.
The honorable senator will see that if that notice of motion be given for a future day it cannot come on for discussion if the orders of the day be not read and discharged. It would be out of order to discuss the same question three times, and that is what Senator Neild wishes to do.
-Col. Neild. - I beg your pardon, sir !
– I do not think that the honorable senator ought to give notice of a motion to discuss the same question as is contained in an order of the day.
-Col. Neild. - I could not amend an order of the day, sir, and, therefore, I intend to ask the Senate, at’ the earliest moment, to discharge it. I hope, in the course of half an hour, to be in a position to ask the Senate to discharge orders of the day, Nos. 4 and 3.
– I do not know that it is quite regular, but if that is so, I shall take the notice of motion.
– I wish to say a few words on a matter which concerns the procedure of the Senate, and the business of other honorable senators. So long as honorable senators see what the effect of this procedure is, and decide upon it, well and good; but in support of your view, sir, I would point out that my honorable friend is now giving - and I shall be glad to facilitate in every possible way, his view, if it is in conformity with Parliamentary practice and the Standing Orders - notice of motion. This is the fourth notification, so to speak, which -will b-j on the notice-paper, at least temporarily, dealing with the same subject. The honorable senator has given notice, for a future day, of a motion which is in terms exactly the same as notice of motion No. 4. Since that notice of motion is on the notice-paper, the standing order and the practice,, as laid down in May, forbid the new notice from being received. In addition to that, sir, there are two orders of the day which, on a previous occasion, you ruled, deal with part of the same subject-matter.
-Col. Neild. - If. the honorable and learned senator will permit me I shall get this matter out of the way in a moment.
– Very well.
-Col. Neild. - I am sure, sir, that you will see that I can give notice that on the 15th December, I shall move a motion in connexion with the report of the Select Committee, and when that order of the day is being discharged can hand in the particulars. I think it will be in order for me to give notice for the 15th December.
– If the honorable senator gives a general notice of motion it will be in. order provided that twenty-four hours before it comes on he hands in to the Clerk the particular motion which he wishes to move.
-Col. Neild. - I shall do that, sir.
– On a point of order, sir, I wish to submit that the notice of motion must be read to the Senate.
– The honorable and learned senator will find that standing order 104 says -
A senator giving notice in general terms to move certain resolutions, must deliver at the table a fair copy of the proposed resolutions, at least one day prior to that for which he has given notice.
– Does that govern in this c3.s6 ?
– I really think that we are getting into a tangle. The honorable senator has given three or four notices of motion.
– It is a little like a monopoly for one honorable senator 10 have on the notice-paper four notices of motion dealing with the same subject. We must not get further into what you, sir, have so well described as a tangle. I venture to submit with great deference to my honorable friend, Senator Neild, and with great, respect to you - because it is in conformity with what you have already indicated - that first of all we should get rid of the motion upon the notice-paper. It will be for the Senate to decide whether it will discharge that order of the day. Some honorable senators may say, “ I will not permit it to be discharged.” The Senate ought to have an opportunity of taking that position. My honorable friend cannot anticipate the action of the Senate as to future courses of action by giving notice of motion that he intends to deal wilh the same subject-matter as is covered by a motion standing on the paper. You have already indicated that one notice of motion ought not to be upon the paper at all. Therefore, it ought to come off. My honorable friend himself is entitled to move to discharge a motion from the paper, and the Senate will have to take that motion into consideration when it is brought forward.
– Any senator cm object.
– Any honorable senator may say that the motion must ba proceeded with.
– The Senate decides, not any individual senator.
– But any senator may insist on proceeding, because an order of the day is not in the situation of a notice of motion. It is something in the possession of the Senate. The standing order says -
An order of the day is a Bill or other matter which the Senate has ordered to be taken into consideration on a particular day.
No one can deal with an order of the day except the Senate. Therefore, when my honorable friend, Senator Neild, says that he is giving a general notice of motion in relation to the same subject-matter as is covered by an order of the day- - -
– I do not know that that is so.
– He has told us so. If he had not informed us, we should not have known. He has told us with perfect candour.
– I have not stated the terms of the motion at all.
– My honorable friend says that he is going to give the terms in detail later on. I suggest that the regular course will be, in conformity with your ruling, to remove from the paper the notice of motion now upon it. In any case it cannot be moved, because it is out of order. Then my honorable friend can move to discharge the order of the day, and the Senate will deal with the subject. Later in the day, if he gets the leave of the Senate, my honorable friend can give notice of a fresh motion. That is the clear course, it seems to me.
– I assume that I am perfectly entitled to give a notice of motion in general terms without specifying what its details are.
– What I understand that Senator Neild wishes to do is to give notice under standing order No. 104 that he will call attention to the report of the Select Committee on Privilege; and later on he will hand in the particular motion which he wishes to move. If that be sq. I do not think that I can rule him out of order. If he had indicated what he was going to move, and that the substance of his motion was the same as an order of the day-
– So it is.
– But he now says that he gives notice in general terms to call attention to the report of the Select Committee. I cannot say that the motion of which he wishes to give notice is identical with, or the same in substance as. an order of the day; and therefore I think that the honorable senator can take the course which he suggests.
– I should like to . ask a question about this subject, because we ought .to be clear with reference to the effect of points of order of this description upon the business of the Senate.
In the event of a general notice of motion being now accepted by the Senate, then, when Senator Neild asks for the motion which is already on the paper to be discharged, if it is found that the motion of which he gives notice is the same as the motion which he wishes to have discharged, will he not be out of order?
– Hear, hear; that is the point.
– I do not think that it is fair that it should be within the power of any one senator to put a motion on the notice-paper, and for it to become an order of the day ; and then, if he discovers that it is not likely to be dealt with, to discharge it, and in a general way put on another notice of motion, so that he can have the subject discussed three or four times in one session.
– That cannot be done.
– But if the motion of which Senator Neild desires to give notice is put upon the business-paper, and the motion which at present stands in his way is discharged after it has been put on the paper, will not that render the new motion out of order if it is found to be the same as the motion which has been discharged ?
– I quite agree with what Senator McGregor has said. If my honorable friend Senator Neild gives a general notice of motion for a future day, and if before that future day arrives he gets rid of the order of the day upon the notice-paper, and then fills up his general notice of motion with the same terms as those of the motion previously on the paper, will not the new notice be out of order? ‘ If not, the Standing Orders would be evaded. If Senator Neild gave his notice of motion in extenso now, it would be out of order. Can he avoid that by saying, “ I will give notice of motion in general terms,” and then, next week, place upon the paper a motion in the same terms as the motion already on the paper? My honorable friend, Senator McGregor, has laid his finger on a very serious question, because if Senator Neild is out of order in giving notice of motion in extenso now, he must be equally out of order when his motion comes on for discussion.
– I think that Senator Neild is not out of order. If honorable senators will consider t’he reasons for the four standing orders to which I have referred, they will see that they are to avoid the same question being discussed twice in the same session. If Senator Neild does not move the motion standing upon the paper in his name - and no one can make him move it - and if he gives notice of a new motion, the subject-matter will not have been discussed at all. We shall not ‘have discussed the same matter twice over; and that is what I understand to be the fundamental reason for the standing orders referred to. If the order of the day is discussed, and I subsequently find that the motion of which Senator Neild gives notice is similar in substance to the order of the day, then I shall rule that t’he new motion cannot come on, because we have already discussed the matter. But if the Senate discharges the order of the day, and it is not discussed, we shall not then have discussed the same matter twice, if Senator Neild’s new motion is considered. The object of these standing orders is to prevent the discussion of the same matter twice in the same session. Do I understand that Senator Neild means to read out his notice of motion, or shall we take it as read? I will take it that the honorable senator gives notice that he will call attention to the report of the Select Committee on Privileges, and will move a motion dealing with the subject ; and that he will hand in the terms of his motion at least one day before he moves it.
– Do you think, Mr. President, that Senator Neild has fully complied with standing order No. 104 ? Has he given sufficient general terms in your opinion? What does the standing order mean by “ general terms “ ? I have heard nothing of what he intends to move.
– What I understand ‘ that Senator Neild has done is to give notice that he will call attention to the report of the Select Committee, and move a motion on the subject. The terms of the motion which he intends to move will foe handed in by him one day before the motion comes on, and will be printed in the notice paper. That- has already been done during the session, under this standing order.
– May I point out that if the motion is in that form, it will be distinctly out of order, because the motion on the paper is to call attention to the report of the Select Committee.
– It is possible to call attention to the report of a Select Committee, and to move thereon any number of motions different in substance.
– As a great variety of motions might be moved, would it not be proper for the honorable senator to indicate to the Senate the general character of the motion which he proposes to submit? I put it to the honorable senator himself. He has a great knowledge of parliamentary practice.
– I shall” follow the practice laid down by the President.
– Is it fair to the Senate that we should be kept in the dark until the day before the motion is moved; or that it should be possible to keep us in the dark as to the general character of the motion to be moved until twenty-four hours before the question comes on for discussion?
– The general procedure of the House of Commons, and of all Legislatures founded on House of Commons practice, is, as I have indicated, that a member says in certain terms that on a certain day he will call attention to so and so, and will move a motion. Standing order No. 104 was expressly framed in order to permit that to be done, and I think that Senator Neild is in order. We shall see whether the motion can be moved after the Senate has dealt with the Order of the Day.
– I beg to ask the Attorney-General the following questions : -
– I ask you, Mr. President, whether these questions are in order. I do so for two reasons. You are the sole repository of the practice of the Senate, and are also our guide in all these matters. I ask for your direction on this subject for the guidance of the Senate. I am afraid that a tendency has grown up to set out in questions extracts from newspapers and other documents; and to ask for documents which might more properly be moved for, and be laid on the table in the ordinary way, and might, if necessary, be ordered by the Senate to be printed. With regard to extracts from newspapers-
– Is not the honorable and learned senator anticipating?
– No ; I am asking for a general direction in this matter. It seems to me that parliamentary practice does not permit of questions being used for this purpose. The questions immediately before us practically set out a number of documents under cover of the form adopted, and I venture to submit that if documents or papers are asked for it is right that the whole of them should be produced, and not mere extracts which it may not be desirable to place on record.
– The honorable and learned senator can refuse to answer the questions.
– I wish to take the President’s ruling on the subject for our guidance. It is not pleasant to refuse to answer questions, and honorable senators will understand that there should be no desire, or at all events, no frequent desire, on the part of Ministers to refrain from answering questions of any sort. I point out with respect to these particular questions that they give a number of extracts from papers, and also convey imputations and personal reflections which may or may not be well founded, but which if intended to be charges against any man should be submitted in the form of charges, in. order that they might be dealt with, and not merely left on the records of the Senate without any opportunity being given to those concerned to meet them. The rule to which I wish to direct attention is taken from May, and the references to the matter will be found at pages 238 to 239.
A question cannot tie placed upon the noticepaper which publishes the names of persons or statements not strictly necessary to render the question intelligible.
A question is not permitted which makes or implies charges of a personal character.
– Is this taken from our Standing Orders?
– No, from May’s Parliamentary Practice. I have no desire to deal with the matter controversially, and I am merely seeking a ruling for our guidance. What I quote are the effects of decisions given on corresponding Standing Orders, by which we may or may not be guided. I find this in Peel’s Decisions, page 117-
Questions must not cite statements which involve reflections or imputation, and at page 119 -
It is not in order to ask a Minister for his opinion.
There is a passage in a very excellent little book, Nowell’s Parliamentary Handbook, for the perusal of which I am indebted to the President, which bears on this matter. At page 37 I find it stated -
Questions ought to be such as when answered will alford information to the House relating to some pending measure, or to some public event connected with the administration, or to enable the House to form an opinion of the policy of the Government, and ought not to be put for the mere purpose of contradicting idle rumours or to relate to mere news of the day; t0 the supposed official character of a newspaper article or to the truth of rumour noticed in a newspaper of a Ministerial measure in contemplation.
That view is founded upon the practice laid down in America, and which I think should prevail in all Parliaments. It is taken from Cushing’s book. In May, p 255, I find it stated that -
A question relative to matters outside the House, and not hearing upon any matter before the House, should not be put.
I am ‘sure that the Senate will be glad to have the views of the President generally on the subject of questions, but I submit with regard to the particular questions immediately before us, that they offend against these well-established and wellrecognised rules. First of all, by broaching matters which are more appropriate to a motion to lay papers on the table, secondly by referring to a matter which is not of public interest, but -personal to the honorable senator, and affecting a matter in which he no doubt takes a very great interest, and thirdly by conveying under cover of the identification of a particular document a charge of a very grave character. I am sure that whatever view the President may take on the general question for the guidance of the Senate, he will be disposed to think that with regard to these questions it is only fair that the rule should be strictly adhered to.
-Col. Neild. - The AttorneyGeneral has raised a point of order, but has not attempted in support of it to show that his objections are within the purview of our own Standing Orders. The honorable and learned senator has founded them upon alleged instances in the history of the British House of Commons. Rightly or wrongly, this Senate, in framing its own Standing Orders, was careful to avoid any reference to the Standing Orders of the House of Commons. We have provided Standing Orders’ of our own, and I therefore submit that, however apposite the honorable and learned Attorney-General’s remarks might be as regards the practice of the House of Commons, they are not by any means necessarily applicable to our Standing Orders. I think that the President will be disposed to take the view I take that, entirely apart from the outside suggestion which the Attorney-General has submitted, as reasons for an adverse ruling on my question, the fact remains that those questions are within the terms of our own Standing Orders, and are not, therefore, to be wafted aside by the suggestions which the honorable and learned senator has put forward, and which may, or may not, be accurate. I submit that my questions are within our Standing Orders.
– Before the President’s ruling is given I should like to emphasize the point mentioned by Senator Neild, that we deliberately struck out of the Standing Orders proposed for the Senate a clause stating that where our Standing Orders did not meet a case under review, the House of Commons’ procedure should be adopted. I distinctly remember that that was done, because it was held that we were quite competent to establish our own precedents, and build up our own procedure under a Constitution which is unique amongst those of the Parliaments of the world. I would ask whether, in standing order 94, the words “ nor inference, nor imputation “ do not refer to Member’s of the Parliament ? Suppose that a member of the Senate had information that a breach of the Customs Act was being committed, and wished to know from the Minister of Trade and Customs, through the Attorney-General, whether it was a fact that a certain firm was committing a breach of the Customs Act, would the honorable and learned senator contend that the question was out of order?
– That is a matter of administration.
– Of course it is.
– But is there not an inference and an imputation there? Sena-, tor Symon appears to think that the words 1 nor inference, nor imputation ‘ ‘ might be applied to persons outside the Senate, and certainly if t’hat be so the range of questions will be somewhat strictly limited. I take it that what is meant by the standing order is that we must not by inference or imputation make any reflections upon Ministers, whom we may ask questions, or any member of the Senate who has charge of a Bill.
– Under the standing order inferences may be made, if they are necessary to explain a question.
– “ Except so far as may be necessary to explain such question “ ; that is the qualification.
– The opinion is expressed by the Attorney-General that Senator Neild has not adopted the proper method of dealing with the matter he has in hand, by asking these questions. On that point I would say that very often it may save time to ask a series of questions if the Minister is given ample opportunity to supply the inform’ation desired.
– Hear, hear.
– I remind honorable senators that there is nothing to prevent a number of honorable senators rising in their places in accordance with the Standing Orders, to support a motion for the adjournment of the Senate, in order that attention may be drawn to a particular matter.
– That would be perfectly legitimate.
– I may say that it has very often been with a view to saving time that I have put questions on the paper.
– But does not the honorable senator think that to ask a question is not a proper course to adopt in making a charge against any person? Should that not be done by a formal motion?
– That is a matter of opinion.
– Before answering the direct question put to me I would ask the indulgence of the Senate to say a few words generally- on the subject of questions. I am afraid that we have developed rather an objectionable practice with respect to questions. Questions ought to be such as ask for information. It may be my fault, or partly my fault, but I am afraid that many questions which have been addressed to Ministers in the Senate have not asked for ‘ information, but have given information and have asked for opinions. I have carefully considered the matter, and in allowing this practice to grow up I have not acted inadvisedly. I have given due attention to the fact that if any honorable senator considers a matter of public importance, and desires that it should be brought forward, he will effect his object in one way or another, and if he is not permitted to do so in the form of a question he will do so by way of motion. A question may be disposed of in a few minutes, but if a motion is tabled the debate upon it may occupy a great many hours. It may, therefore, save some time if latitude is allowed in the putting of questions. It seems to me, however, that we should lay down “some general rules concerning questions in addition to our Standing Orders. In reviewing the practice of Parliament, not only of the British House of Commons, but of the States Houses, and of the Federal Senate and House of Representatives in America, I find that general rules have been adopted, in addition to their standing orders. One of these general rules, which honorable senators will find laid down in the practice of the British House of Commons, is this -
A question affecting the conduct of an individual is irregular and will not be allowed to appear on the notice-paper, and after the honorable member has received the usual intimation from the Clerk, it is irregular to attempt to bring the matter before the House, and any motion which seeks to bring forward a question already declared to be irregular will not be put by Mr. Speaker.
The reason for that rule, it seems to me, cannot be controverted, because when a question is asked and the answer is given, the matter cannot be debated, and it is manifestly unfair to make imputations on the character of any individual in the form of a question when that individual cannot be defended either by his friends or by Ministers who have cognizance of the matter. It seems to me, therefore, that that is a rule which we should adopt, and it should be agreed that questions should not attack the character of any individual. There are many other limitations to questions, which are contained in books of reference concerning all Parliaments. I have no doubt whatever that a great many of the questions which have been asked might have been objected to, though, technically speaking, they no doubt were within the terms of the Standing Orders. It seems to me that the members of the Senate ought to consider the position of the Senate, and exercise due discretion in asking questions. Mr. Gladstone, in a celebrated speech referring to the Constitution of Great’ Britain - and his remarks apply also to our Constitution - said -
More, it must be admitted, than any other, it leaves open doors which lead into blind alleys, for it presumes more boldly than any other the good sense and the good faith of those who work it. The undoubted competency of each reaches even to the paralysis or destruction of the rest. The House of Commons is entitled to refuse every shilling of the supplies. That House, and also the House of Lords, is entitled to refuse its assent to every Bill presented to it. The Crown is entitled to make a thousand peers to-day and as many to-morrow ; it may dissolve all and every Parliament before it proceeds to business; may pardon the most atrocious crimes ; may, declare war against the world ; may conclude treaties involving unlimited responsibilities, and even vast expenditure without the consent, nay, without the knowledge of the Parliament, but in reversal of policy already known and sanctioned by the nation. But the assumption is that the depositaries of power will all respect one another; will evince a consciousness that they are working in a common interest for a common end ; and they, will be possessed together with not less than an average intelligence, of not less than an average sense of equity and of the public interest of right.
Although that refers to grave concerns, it also would apply to the smaller matter of asking and answering questions. I ask honorable senators to consider the dignity of the Senate by not referring to every tittle-tattle in the newspapers, and thereon asking questions - by not referring to every enunciation of opinion bv some outside authority. I cannot say that questions of this nature are out of order, but I deprecate the practice of asking them. In this particular matter the point raised is whether the question asked by Senator Lt.-Col. Neild is an attack on the character of MajorGeneral Hutton ; and if it is I do not think the question ought to be asked. But I am not prepared to say that it is an attack on the character of Major-General Hutton. 1 think the question is objectionable, and that questions of the kind ought not to be asked; but I am not prepared to say that it is contrary to the standing order. I therefore must rule that the question may be asked, although 1 hope that questions of this nature will in future not be put.
-I suggest to Senator Neild that the matter referred to cannot be conveniently or properly dealt with in this way, and therefore I refrain from answering the questions.
Senator Lt.-Col. NEILD (New South Wales) -I desire to move that notice of motion No. 1, be postponed.
– Senator Neild has a notice of motion, No. 5, having reference to the Parliamentary Evidence Bill, and notice of motion No. 1, and order of the day No. 2 deal with the subject-matter of that Bill.
– I do not think that they do deal with the subject-matter of the Parliamentary Evidence Bill.
-Neild. - I do not wish to debate the matter, but my notice of motion, No. 4. proposes that evidence shall be taken. The Bill, I think, sir, as it was read a second time, simply contained the word “ may.”
– The Senate may alter the word to “shall.”
– But has it been altered?
– The Senate, in considering the Bill, may insert “ shall “’ instead of “ may.” Really, paragraph 3, of notice of motion No. 1, is not in order, and should not appear on the notice-paper.
– The notice of motion has not yet been postponed.
– There can be no discussion.
– But under standingorder No. 70, the Senate has the right to a division on a proposal to postpone a motion, and I intend to call for a division.
.- That standing order refers to formal motions, whereasthe question before us is that of a postponement. I move -
That notice of motion No. 1 be postponed untit 15th December.
Question put. (The Senate divided -
– The honorable senator will see that that is not the point. Any senator who wishes to change the day for a motion, should give notice when notices are called on.
– But I think, sir, that you prevented me doing so.
The- PRESIDENT.- I am not sure’ about that, but if the honorable senator did give notice, he need not move this motion.
– I did give notice for the 15th.
– I am not quite sure whether the division ought to take place; but any doubt there may be is the fault of the honorable senator, who, if he gave notice, ought not to submit the present motion.
Question so resolved in the negative.
– If the honorable senator has already given notice under standing order No. 102, the notice of motion, No. 1, is postponed, notwithstanding the division. The irregularity has arisen owing to the honorable senator’s own action in submitting a question which had already been decided.
Notice of motion No. 4 having been called on -
– I rule that notice of motion out of order.
Order of the day No. 2 (Private business) having been called on -
– I have already ruled that sub-paragraph 2 of this motion is out of order.
asked the AttorneyGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow : - 1.£250 2s. iod.
– Arising out of that answer, I should like to ask the AttorneyGeneral whether he is aware that a similar sale took place in Sydney, in connexion with the same importer ?
– I am not aware.
– I move -
That, in the opinion of the Senate, the Government should take all steps possible to counteract the great injury that will result to Australian trade if the evident intention of the German Government to establish a monopoly for German traders in their Pacific Islands is carried into effect.
I need make no apology for bringing for-, ward a question of such importance, relating to Germany’s recent action in the
Pacific, more especially in regard to the Marshall Islands. That nation is endeavouring to inaugurate a new policy which, if persisted in, will seriously affect our trade and interests in the Pacific Ocean. The trade of the Commonwealth in the Pacific has already assumed very large pro.portions, and there is every prospect that it will increase and expand if we are allowed fair play in the neighbouring islands. Last year the trade of Australia with the Pacific Islands - exports and imports - came to over £1,000,000, the exports alone representing £600,000. That was a trade which was particularly valuable to Australia, because the islands took our manufactured products, and in return we obtained raw materials which were worked up in our manufactories, and exported’ to other parts of the world. A valuable oil is manufactured from copra and the residue is used for cattle food, while the fibre of the cocoanut can be manufactured into coir matting, which Is an important article of commerce. These industries can be built up and the products exported to various parts of the world. There is another aspect of the case to be considered. We have subsidized a line of Australian steamers to run to these islands, and we are gradually building up an important” mercantile marine, manned exclusively by Australians, which is of great commercial importance to the Commonwealth, and which is of great importance in regard to our future defence considerations. The present action of a great European power in the Pacific is likely to cripple that expansion of our shipping which is so necessary in the interest of Australia.
– Is it proved that it has been done bv the German Government ?
– We have not as full information as we should like; but we know the results of certain actions by the German authorities. The tendency is to restrict our trade and enterprise in the Pacific and the islands contiguous to Australia. We must admit at once that it is the inherent right of every nation either to grant preference to its colonists in trade between the sovereign State and the Colonies, or between the Colonies, or to see that other nations do not trade with them. We admit that legal aspect of the case. But seeing that we extend to Germany, as we do to all other nations, absolutely equal trading facilities throughout this continent, and give them every opportunity of trading, not only with us. but from port to port throughout the continent, we should not allow such a wanton crippling of our industries to pass without a very strong protest. I am prepared to go even further, and say that if that protest be ineffective it should be supplemented by some retaliatory action in the way of reprisals for their exclusive action where their interests areconcerned. The whole trend of the world’s fiscal and maritime legislation is to carve out certain restrictive and monopolistic spheres of trade which are appropriated by the State owning the territory. If this system, which is extending in all parts of the world, is not objected to, those nations which do not adopt a similar policy are preyed upon. They are not allowed to trade with the foreign nations’, and at the same time the latter take every advantage of their opportunity to trade fully with them. If we turn’ to the Tariff of the three greatest mercantile nations outside Great Britain - Germany, France, and America - we shall find that they give a, large preference to their Colonies. Speaking generally, the French Colonies are allowed to import into France at half the ordinary Tariff rates. In the case of America, articles grown or produced in the Philippine Islands come in at 25 per cent, less than the ordinary Tariff rates. They give a further preference by various shipping laws, which are designed for the purpose of preventing the shipping of other nations from trading from port to port in a sovereign State, and in some cases from that State to the Colonies, or between the Colonies. If we take a glance at the various nations we shall find that Belgium, France, Germany, Italy, Portugal, Russia, Spain, and the United States .reserve their coastal trade. Even in the case of Egypt, the trade is reserved from foreign nations. The trade between Russia and her possessions in the Pacific is reserved. In the case of the United States there is an absolute exclusion of foreign nations from the coastal trade, except on the St. Lawrence River. It is very important to understand the position which the Americans take up with regard to their Colonies -
All possessions are considered as part of the United States, and are under the Central Government. The law is that no foreign vessel shall carry either goods or passengers between ports in the United States, or between any port in the United States and Port Rico or Hawaii. In Act of Congress, passed on 15th April, 1904, it is enacted that carrying goods between the United States and the Philippine Islands is restricted to American vessels after 1st July, 1906; this also refers to passengers.
So that the tendency I mentioned is expanding, and a prohibitive trade interest and a monopoly of the trade between the Colonies in the sovereign State is being extended by the various nations throughout the world. But all this legislation does not prevent any nation from trading with these Colonies or with the sovereign State, and no modern legislation attempted to restrict that freedom until the German Government took action with regard to the Marshall Islands. This is a new and startling aspect of international trade rivalry - something which has not been attempted since the days of the Dutch and British East Indies Companies. The evident intention is to make the German possessions in the Pacific an exclusive trading ground for German vessels. When we come to consider the area and importance of the German Colonies in the Pacific, we shall see at once that such action must be very detrimental to the interests of Australia. All the islands in the area north and north-east of New Guinea practically belong to or are under the protection of the German Empire. The Germans practically propose to place a ring fence, with barbed wire entanglements, round an area comprising 3,600,000 square miles of the Pacific Ocean. They have inaugurated a policy which, if carried out, will practically prohibit any nation from trading with that immense area, extending for 3,000 miles from east to west, and about 1,200 miles from north to south. It includes German New Guinea, the Pallao Islands, the Bismarck Archipelago, the German Solomon Islands, the large Caroline group of islands, and the Marshall Islands. Their action in regard to the Marshall Islands is probably the first instalment of a more extensive system in the South Seas. They have instituted this policy first of all with regard to the Marshall Islands probably to see how it will be regarded “by other nations. If they should be content, and turn the other cheek, the Germans will adopt a similar policy with regard to their other islands, which would be a most serious injury to the Commonwealth. They would probably have another subsidized company to take on another group of islands, and in that way they would create a system of absolute exclusion from all their possessions in the Pacific. It is stated that the Jaluit Company has been granted a similar monopoly with regard to all the Caroline Islands except Ponapi, the capital. This company is a very powerful combination. It is an amalgamation of three companies, and has four or five trading vessels under its control. It is very heavily subsidized by the German Government. Their purpose, of course, is to extend German influence and German exclusion in the Pacific Ocean. It has been stated that no other company is given any privilege with regard to that area, and that if another German company was to come in it would be placed under exactly the same disabilities as an Australian or American company. But that is the merest quibble and subterfuge ; because there are no. other German steamers running to those Islands, and Germany has no intention of granting a subsidy to any other lines. Therefore, the Marshall Islands! are practically placed under the control of that company, with a view to its having an absolute monopoly of the trade for the German Empire. If any other German company comes in they will say, “ We will treat you in exactly the same way,” because they know that there is no other German company in existence to ‘trade! with those Islands. It will be quite possible for them to say, “ We will charge our own boats exactly the same wharfage rates and duties,” because, as they hold those islands very much as a chartered company holds territory, it would be only taking money out of one pocket to put it into the other. This Jaluit company sends its boats down to the Gilbert and Ellice groups of islands, which belong to the British, and trades freely with them. It is also a common practice with the company to run its boats down - comparatively only a few miles - just a few weeks before our subsidized steamers arrive, and take away all the copra, and the produce that is ready for export, giving its goods and wares in return before our vessels arrive. They practically say, “ We will trade with your islands and take your trade away, but we will not allow you to trade with ours.”
– The Imperial Government has the sole power to deal with the islands.
– We have full power to legislate with regard to shipping in Australian waters. Germany has unfortunately for some time past adopted a very high-handed and grasping policy, not only in the South Pacific, but in other parts of the world. We all remember the case of the annexation of German New Guinea and the Bismarck Archipelago. We know that their action was a violation of all diplomatic usage. We know that Lord Derby notified the German Government that it was the intention of Great Britain to establish a protectorate over the whole of the eastern portion of New Guinea, and that Baron von Plessen asked that the question of the annexation of the northern portion should be made a .subject for diplomatic negotiation. Great Britain agreed to that request, but before, any diplomatic notes had passed, and before the matter had been considered, the information came that a German man-of-war had been sent out, and that the territory had been .annexed.
– Who performed the first act of annexation?
– The first absolute annexation was by Sir Thomas Mcllwraith, in the name of Queen Victoria and it was a great pity that that was not allowed, as it would ‘have saved us a great deal of trouble in the future. There are methods of reprisals which are efficacious in dealing with such high-handed acts. I may mention in illustration that in the case of the bounty -fed sugar of Germany, the head of the Cartel system made a boast that in a few years’ time the Cartel would ruin every sugar-cane growing industry in the world. All the other nations consequently adopted a .retaliatory system by putting on countervailing duties ; and at a conference held in Brussels, Germany had to forego the continuance of the bounty system.
-IS the honorable senator certain that he is correct about the head of a company being so foolish as to state publicly that it would ruin all the cane sugar industries in the world?
Senator STANIFORTH SMITH.The statement was made by the president at one of the meetings of the Cartel. Germany has allowed Great Britain to come under what is known as the most favoured nation clause, and Great Britain has allowed Germany to do the same. The treaty made between Great Britain and Germany necessitated that Great Britain should not give to any nation a preference greater than the preference given to Germany. At a later period the Right Honorable Joseph Chamberlain pointed out that the treaty contained certain stipulations with regard to the British Colonies that did not permit Great Britain to grant a preference to her Colonies unless Germany got a similar preference. Mr. Chamberlain had that clause of the treaty struck out. In spite of this Germany affected to still consider that Great Britain, in undertaking not to give preference to any other nation unless the same was given to Germany, had also undertaken not to grant preference to her Colonies. In- other words, the British Colonies were to be considered as foreign nations for the purposes of the agreement. The result was that when Canada proposed to give a preference to Great Britain, Germany said that it was a contravention of the most favoured nation clause, and that she would impose extra duties against Canada. The idea of endeavouring to interfere between Great Britain and her Colonies, and that the British Government could not grant preference to one of them, or vice versa, raised such a storm of indignation throughout Great Britain that Germany soon altered her tactics. I merely mention this in order to point out that when Germany does adopt these aggressive tactics she can be met only in one way, and that is by reprisals which are injurious to the German people. As I have said, it must be admitted that Germany has a perfect right to do all these things. There can be no possible question about that. And, no doubt, she will continue to do them until some action is taken. If we supinely agree to accept all that the German Government chooses to do, no doubt they will continue their present policy very much to the injury of the Australian trade, and the trade of the Empire.
– The honorable senator does not claim that Germany singles out Australian vessels?
– I have expressly stated that she does not. The only effective weapon we have against unfair treatment, such as this, is retaliation.
– We can institute reprisals against what we consider to be unfair treatment by a great Tower, whose vessels trade with the Commonwealth. Australian waters are crowded with German shipping. We do not close our ports to German shipping, and German traders undoubtedly derive large profits and great advantage, not only from the goods which are carried from Germany and other parts of the world to Australia, but from goods carried from port to port as part of the coastal traffic of the Commonwealth.
– Every German shipping company is losing money.
– It is a very extraordinary thing, if the German shipping companies are losing money, that the Germans are to enlarge their mercantile shipping fleets; and that one line which trades with Australia is, with one exception, the largest shipping company in the world.
– They receive large subsidies from the German Government.
– The companies cannot be losing money if the German Government are paying them large subsidies. We must add the subsidies to their trading profits in considering their financial position.
– Their balance-sheets show that they are losing money in the Australian trade.
– I cannot believe that they are; but in any case, we cannot judge from isolated facts like that. Their trade extends over an enormous area, and we cannot allocate a certain amount of profit to any particular part of the trade. The German people have adopted, as they had a right to do, certain legislation, or have come to certain decisions in regard to excluding Australian shipping from their ports in the Pacific. It is quite competent for us tq do the same thing to them. What is sauce 4for the goose is sauce for the gander. If we treat them in somewhat the same way, we shall probably find that Germany will come off second best ih the bargain. I myself believe that retaliation under conditions like that, with a view to securing fairer conditions, is justifiable, and advantageous to a nation.
– Welcome to the protectionist fold !
– I am glad to have another friend’s commendation. The Germans would find if they came to such a pass as that, and if Great Britain said, “ We will adopt retaliatory measures if you are going to exclude us absolutely from trading with your possessions,” that they would have the worse of the bargain, because they would be excluded frompractically one-quarter of the world. I am not at all sure that Great Britain is not waking up to the absolute necessity of some such action being taken. I find that, on the 14th November, the Financial News refers to the restrictions imposed by the Germans on
British steamers trading with the German Pacific Colonies as recently reported. It remarks that Germany - will perhaps find that the British Navigation Acts will be revised, or that other measures will be adopted for keeping navigation in British! hands.
I think it must be patent to every one that the Germans have adopted a most inopportune time to commence this policy. Next session I hope we shall pass a Navigation Bill. If the present German policy is persisted in of refusing Australian traders access to German territory I have not the slightest doubt that no German ships will be allowed to participate in the Australian coastal trade, or that they will be allowed to carry passengers between State and State.
– Or to trade over-sea.
– Oh, no, they can trade over-sea. But the Inter-State traffic will be prohibited to German steamers as a retaliatory measure for their action in prohibiting us from trading with their possessions.
– We should also re,taliate by precluding them from our oversea trade.
– We do not want to preclude them from trading with Australia, but we may prevent them from trading along our coasts ; and in that way I think more injury “will result to Germany than will result to Australia from being excluded from German possessions.
– Ask the wool-growers.
– I have said that I have no desire to prevent the Germans from trading with Australia. Other portions of the Empire are seriously considering the necessity of adopting some retaliatory policy with regard, not only to Germany, but other nations who refuse access to British ships to trade between their possessions and the sovereign State, or to participate in their coastal traffic. At the Colonial Conference held in London in 1902, between the Secretary of State for the Colonies and the Prime Ministers of the self-governing Colonies, the following resolution affecting the coastal trade was passed : -
That it is “desirable that the attention of the Governments of the Colonies and the United Kingdom should be called to the present state of the navigation laws in the Empire and in other countries, and to the advisability of refusing the privileges of coast-wise trade, including trade between the Mother Country and its Colonies and
Possessions, and between one Colony 01 Possession and another, to countries in which the corresponding trade is confined to ships of their own nationality, and also to the laws affecting shipping, with a view to seeing whether other steps should be taken to promote Imperial trade in British vessels.
It will be admitted that that is a very important resolution to be passed by a Conference representative of the various parts of the Empire. The Steam-ship Subsidies Committee, appointed in Great Britain in 1902, in referring in their report to the exclusive coastal and Colonial trading legislation, made this statement -
This class of restriction appears to be on the increase, so that the field for British trading throughout the world is becoming gradually but surely circumscribed.
In summing up, the Committee say -
Your Committee think that the occasion has come when the question of the qualified reservation of British Imperial coasting trade on the lines above indicated should be considered by His Majesty’s Government, with a view to reserving the British and Colonial coast-wise trade and the Imperial coasting trade within the British Empire to British and Colonal ships, and to vessels of those nations who throw open their coasting trade to British and Colonial ships.
That, of course, is with a view to the establishment of a system of reciprocity in regard to shipping. If we turn to the Navigation Bill which was introduced at the beginning of this session, we shall find some excellent provisions to meet such a contingency as I Have outlined. That Bill provides that foreign ships trading from port to port in Australia must be licensed; that they must pay the Australian rate of wages, that they must not be subsidized, and that they must be properly manned. Those are conditions which, if enforced, would practically preclude foreign shipping from trading in Australian waters. Clause 306 of the Navigation Bill provides -
The Governor-General may, if he thinks fit, by a proclamation, exempt ships registered in or sailing under the flag of any foreign country from the provisions of this Part of this Act requiring such ships to be licensed before they engage in the coasting trade, if he is satisfied by the law of that country British ships may engage in the coasting trade of that country without a licence, and as freely as ships registered in or sailing under the flag of that country.
That simply means that while we should impose these restrictions upon all foreign ships, they would not be put in force by the Governor-General in the case of ships belonging to foreign nations that allow British ships the same rights and privileges in trading as we should allow, were the restrictions to which I have referred removed. Such a clause should be very valuable, and if the Germans persist in their policy of excluding British ships from their waters, I for one’ will readily support such a provision. Its object is not to impose exclusion upon foreign shipping, but to force Germany to relax those stringent conditions in connexion with her Colonies, which are so injurious to the extension of Australia’s interests and trade in the Pacific. For my own part, I hope that such legislation will not be found necessary. I hope that the German Government will see that its policy of endeavouring to obtain the absolute monopoly of trade” with German Possessions, is one which is likely to lead to reprisals on the part of Australia, and of other parts of the British Empire. If such a course is persisted in, Germany is the nation which will suffer most, because we possess the greatest trade and coast-line of any nation in the world.
– What does the honorable senator propose to overcome the difficulty ?
Senator STANIFORTH SMITH.I have stated that such clauses as are contained in the Navigation Bill would admirably, meet such a contingency. They would «be retaliatory clauses, which could be put .into operation to preclude German ships trading in Australian waters, unless Germany allows our ships to. trade in her waters. Clause 306 of the Navigation Bill, to which I have referred, will, in my opinion, meet the case admirably While I think that it would be highly regrettable if Australia were forced to adopt such measures, there can be no doubt that if other nations are to adopt “the selfish and exclusive policy of absolutely prohibiting the ships of other nations trading with them, or with certain portions of their territory, we shall be forced to adopt an attitude which will be calculated to make them reconsider such a policy.
– Would the honorable senator also insist upon every man in a British ship being a British subject?
Senator STANIFORTH SMITH.That has nothing to do with this question. I am dealing with the action of Germany in preventing us from trading with certain portions of her territory. The question for us to consider is whether we are to supinely allow Germany to continue this policy, or whether we shall say that unless she reverses that policy we shall preclude her ships from trading in Australian waters. I believe that if Germany is given to understand that unless she relaxes her stringent conditions that will inevitably be the result when our Navigation Bill is passed, she will see that in her own interests it is desirable that these restrictions should be removed, and that we should be given fair trading facilities with her possessions. Honorable senators, I am sure, will admit that it is of great importance that some action should be taken in this matter. We are aware that the Home authorities have been communicated with on the subject, through the Minister of External Affairs, and strong representations have been made with a view to inducing Germany to reverse her policy. But I believe that a discussion of the matter in the Senate is advisable, because it is just as well that the German Government should understand that it is not the intention of the Australian people to allow this injurious legislation to continue without taking action which will be far more detrimental to Germany than is the exclusion of our trade with German possessions to us. I hope that it will be found that the German Government will not insist upon its present policy, and that we shall be allowed to continue the friendly trading relations which we have hitherto had with our powerful neighbour, and that all our relations in the future with other nations in the Pacific will be of a character” mutually beneficial to ourselves and to them.
– My honorable friend, in closing his most interesting and, I think. I may also say, instructive speech, alluded to the fact that the statement referred to in his motion is one of very high importance. Of that there can be no doubt. We shall all assent to the honorable senator’s statement that if the matters to which he has called attention, and the steps which, so far as we know, appear to have been taken in these islands by the German authorities, are substantiated, it will be a consummation devoutly wished that the Imperial Government will, when they know the facts, deal with them from the point of view of seeking to arrive at a friendly arrangement, so that we in Australia, and the British residents in some of these islands, may live and carry on their business with the German population in a spirit of amity and harmony. Senator Smith will not expect me to traverse the various matters to which he has referred. The speech the honorable senator has delivered, and the information he has supplied, will be of great assistance to us in Parliament and elsewhere, I hope, in considering the matter when the fitting time arrives;. Having accomplished his object, and given expression to his views in the way in which he has, I hope the honorable senator will not think it necessary to press his motion to a division. There are two points to which I should like to refer. The first has regard to. the terms of the honorable senator’s motion. Senator Smith asks that the Government shall take all steps possible to counteract the injury which is dona I do not investigate the foundation of the motion, because my honorable friend is more familiar with the matter than I can be at this moment. But I can assure him that the Government have under serious consideration the matters which have been recently made public. As the honorable senator is aware, very strong representations have been cabled by the Prime Minister, as Minister of External Affairs, to the Imperial authorities, with a view to diplomatic negotiations on the. subject being opened up with the German Empire.
– No threats.
– If I understand Senator Gray’s interjection, I agree that threats are extremely inadvisable. As has been pointed out, the islands to which reference has been made are not ours. Some belong to Germany, whilst ot’her islands in the Pacific are under Imperial control, but are not part of the Commonwealth of Australia, and therefore our only means, short of another course which was indicated, to bring about a better state of things- commercially and nationally, is to adopt a diplomatic process. That may take time, and may try our patience. There is, of course, the other alternative which Senator McGregor, though not seriously, I think, has suggested by way of interjection. Senator Smith has also, with great force, put the point as to reprisal ; but, I think’, the less we talk about reprisals at the present time the better.
– We are only anxious about our own protection.
– Yes. As Senator Smith has said, the question of reprisal might arise, but at present we had better not regard such a course as one within the limits of practical consideration, or likely to be given effect to in any way.
– It will be an important question when we are discussing the Navigation Bill.
– Many important questions affecting foreign shipping and .commerce will come up for examination and legislation in connexion, not only with the Navigation Bill, but, perhaps, in connexion with other measures. All I venture to do at present is to deprecate the discussion of reprisals, or anything in the nature of retaliation, as a practical way of dealing with a matter which is at present under consideration from another point of view. I think that is all I need say at present, except that Senator Higgs was good enough to call my attention yesterday to some notice of motion in the Legislative Assembly of New South Wales, in regard to suggested reprisals. The observations I have already made apply also to such proposals. I am afraid that, perhaps, in the heat of necessary provocation, an consequence of the information we have received, steps may be taken which had better be avoided in the way of motions orresolutions. At any rate, I am indebted to Senator Smith for the great amount of information he has given us, and also for the views he has so clearly expressed. I can assure Senator Smith of the sympathy of the Government in reference to the measures which have been taken, and of their desire to create, as he has himself expressed it, a friendly basis for commercial intercourse throughout those islands. I shall ask the honorable senator, when the discussion is closed, to withdraw his motion.
Debate (on motion by Senator Higgs) adjourned.
Debate resumed from 10th November (vide page 6802), on motion by Senator Higgs -
That the report of the Select Committee appointed to inquire into the case of Major J. W. M. Carroll be adopted.
– If I felt at liberty, I should consult my own inclination by refraining from taking any part in this debate. This is a matter which, as I said on a former occasion, ought not to have been made the subject of inquiry by a Select Committee. An inquiry has, however, taken place, and the Select Committee have presented a report containing certain findings and recommendations. As I do not agree with the findings, I cannot support the recommendations ; and I feel bound to- give my reasons for the conclusions to which I have come. Senator Higgs, Chairman of the Select Committee, has moved the adoption of the report in a speech - a report of which appears in Hansard - and I shall first refer to one or two points on which I do not agree with that honorable senator. When Senator Higgs was submitting that motion, I felt called upon once or twice to interject, but I may say that that was only to enable him to develop his argument in order that I might be informed on what he was relying, and not with the slightest intention of throwing him off the track, or hampering him in anyway. I mentioned incidentally, also, when the honorable senator was speaking, that I felt it to be rather a disadvantage to be personally acquainted with nearly all the officers whose names have been mentioned in connexion with the inquiry. I am far from desiring to take up the position of a partisan; and I hope that in anything I have to say referring to the evidence, I shall be absolutely just and impartial. If honorable senators should think that I in any way misrepresent any portion of the evidence, I may rely on them to put me right at once. In regard to Major Carroll, my feeling accords with the opinion expressed by nearly every one of the witnesses, namely, that as a man and a gentleman, nothing can be said against him. The whole question resolves itself into whether Major Carroll was the officer who, under the circumstances., could be spared with the least detriment to the Military Forces. The Select Committee starting to do justice to Major Carroll in consequence of a complaint made by him, have, in their endeavours, unwittingly done less than justice to other officers. I think I shall be able to show that they have not been just to the late General Officer Commanding, that they have not been just, in some instances, to other officers who are conducting the military affairs of the country, and that, especially, they have not been just to two or three officers - and more particularly one officer - whose names have been mentioned, as in the opinion of some persons those who could be more easily spared than Major Carroll.
– What about Colonel Tom Price?
– I desire to refer, in order, to everything that I think bears on the case. The evidence is so voluminous that it is difficult to avoid repeating oneself, but I shall do so no more than I can help. I propose to refer first of all, to one or two points contained in Senator Higgs’ speech, and then to run hastily through the evidence with reference to what are called’ the reasons for Major Carroll’s retrenchment, as contained in Sir Edward Hutton’s private letter. Having done that, I wish to refer to the evidence bearing on the question whether Major Carroll was the officer who could be the more easily spared.
– That is hardly a fair basis.
– I think I shall be able to show that it is a fair basis. The real reason that was given by the late General Officer Commanding for his action in regard to Major Carroll was that he was called upon to retrench, and that Major Carroll was the officer who could be spared with least detriment to the Public Service.
– Major-General Hutton did not say that.
– -Major-General Hutton gave that reason several times.
– The General Officer Commanding put the retrenchment on the ground that Major Carroll had been found eccentric and unsatisfactory.
– Senator Dawson will excuse me, but I think he is wrong in taking that view.
– Major-General Hutton expressed that opinion, at any rate.
– I shall deal with all the grounds if honorable senators will not insist on my anticipating. Major-General Hutton, in two or three places, gave that as the ground of Major Carroll’s retrenchment, and so long as his information and his judgment were correct, that was a sufficient reason, namely, that he was called upon to retrench, and, on making inquiries in Queensland, he came to the conclusion that Major Carroll was the officer who could be spared with least detriment to the Public Service. Subsequently, the Minister of Defence asked Major-General Hutton to furnish reasons for the action taken, and he, in response, wrote a letter in which he not only gave that reason, which, I am of opinion, must be regarded as the real one, but also a statement of the information which had come to him with regard to Major Carroll. That letter, which was marked “ private and confidential,” and was written in response to a private letter from the Minister, was made the basis of inquiry by the Committee, as though the contents constituted a number of separate charges against Major Carroll.
– Does Senator Drake mean to say that Major-General Hutton untruthfully stated that those were the reasons which actuated him in coming to a conclusion?
– The MajorGeneral either spoke truthfully or untruthfully.
– It was a private and confidential letter, but it has been divided by the Select Committee into paragraphs, indicated by letters of the alphabet, each of which is regarded as a separate reason for Major Carroll being retrenched. I shall be able to show that that letter contained the grounds put forward by the Major-General, to show to the Minister on what he based the conclusion to which he had come.
– Did not MajorGeneral Hutton tell the honorable and learned senator, when he was Minister of Defence, that the reasons which he gave for dismissing Major Carroll were not the true reasons ?
– Certainly not.
– It is so stated in a paper which I saw in the Department.
– I hope that the honorable senator will produce the paper when his time comes to speak, but certainly MajorGeneral Hutton never told me that the reasons which he stated for his action were not the true reasons.
– He told the honorable and learned senator and Sir John Forrest.
– In reply to my letter saying that some members desired to be informed on this subject, Major-General Hutton wrote a letter which substantially contains the same statements as the private and confidential letter which had previously been addressed to my predecessor, Sir John Forrest. But the letter which was made the basis of this inquiry was that of 14th November. I feel sure that Senator Dawson must be mistaken in this respect. I think he will bear me out in this statement - that all these private letters written by Major-General Hutton are in his own handwriting. He must have been an exceedingly busy man to have done the work he did in connexion with the Defence Department. Six’ months after he took a certain action he was called upon by the Minister to give his reasons - apparently to give fuller reasons- and next day he sat down, and with his own hand dashed off this letter of 14th November, which was made the basis of the inquiry.
– How does the honorable and learned senator know that he did not take twenty-four hours; what warrant has he for saying that it was dashed off?
– By the date of the letter.
– He might have taken twenty-four hours to write the letter.
– Had he no other work to do?
– It is only a pure assumption on the Minister’s part.
– I take it that an officer ocupying that .position is a busy man.
– He had a private secretary.
– When Major-General Hutton had written a private and confidential letter of that kind to a Minister in reply to a private inquiry, it was not fair that a Select Committee should take it to pieces, break it up into sentences and halfsentences, and put separate letters against each, treating it almost as though it were simply a series of formal charges against Major Carroll.
– Had not MajorGeneral Hutton a private secretary with all these matters at his fingers’ ends?
– Never mind whether he had or not, his private and confidential letter was, I think, written by himself. There is no evidence that it was written by his private secretary.
– If it was not true, that makes it all the worse. .
– The matter to be inquired into by the Committee, when they were considering whether an injustice had been done to Major Carroll, was whether the reason given by Major-General Hutton in several places throughout the evidence - that he was called upon to retrench, and that he retrenched this officer because he considered that he could be spared with the least detriment to the service - was correct or not.
– He never said that at all.
– He said that over and over again.
– It would have been better if he had stuck to that statement, and not enlarged upon it.
– If he had not enlarged upon the statement, he would not have been replying to the Minister.
– He should have been careful to see that his statements were accurate.
– I intend to deal separately with the statements taken from the letter. When we’ come to the second finding that Major Carroll has been treated unjustly, and that he should be reinstated, I endeavour to show that the substantial reason for his retrenchment has been fully borne out by the evidence. I desire to refer to one or two matters in the speech of Senator Higgs. In the first place, I wish to allude to the assumed destruction of documents. When the case was first brought under my notice by the honorable member for. Oxley, and Major Carroll, it was represented to me that shortly before that officer arrived from South Africa the papers, containing the records of his service, and so om, were destroyed. The matter was put to me in such a way that it appeared to me to imply a most serious charge against officers in the Department, and it was that which first strongly attracted my attention to the case. I made inquiries - and subsequently further inquiries were made, partly at my instance - and I came to the conclusion, as I stated when the Select Committee was. asked for, that there was’ absolutely nothing irregular, that if any one had been attracted to take up the case of Major Carroll on the ground that there had been anything like a conspiracy against him prior to his arrival from South Africa, the evidence showed that nothing of the kind occurred, and that he did not suffer from the periodical destruction of papers, which took place by the orders of a board.
– Not periodical.
– Yes. Honorable senators are aware that a board was appointed under the King’s regulations, for the periodical destruction of papers which had accumulated in the office. The practice of such a board is to take account of the papers which are to be destroyed, in order that a record of them may be kept.
– But not papers recording an officer’s services.
– That is exactly what did happen.
– I think not. At all events, Colonel Price, the late Commandant of Queensland, who was called’ by Major Carroll, and gave evidence, almost entirely in his favour, said, at page 214 - 5423. When trouble about the correspondence cropped up it might be regarded as a reflection upon your office. Did you not take steps to satisfy yourself that, even if a mistake had been made, everything in connexion with the matter was fair, honest, and above board?- I have not the slightest reason to believe that it was not. I am positive, from the statements made by Colonel Plomer and Major Selheim to me, that no documents which bore upon Major Carroll’s case have been destroyed by either of them. 5424. Are you satisfied in your own mind that no officer, non-commissioned officer, or clerk in the’ Queensland office has attempted or desired to withhold any papers in connexion with Major Carroll’s case? - I am perfectly positive of it.
That witness, who cannot be regarded as being biased against Major Carroll, bears out the view I took of the matter after inquiry, and that was that the case did not hinge on this asserted destruction of documents.
– Why, that was one of the reasons for the inquiry.
– When the matter first came before me it was mentioned prominently, and led me to think that there was a suggestion that Major Carroll had been very unfairly and improperly treated in connexion with the destruction of documents. I made some inquiries, and was satisfied that his case had not been prejudiced in any way by that incident, and that is borne out by the evidence of Colonel Price. Senator Higgs was rather unfair in some of the remarks he made with regard to the production of papers. He considered that the Department had been at fault in not bringing forward papers which ought to have been brought forward. He stated that when the Select Committee first asked for papers concerning M!ajor Carroll it received some papers; that when it made a second request, it received more papers ; and that when it made a third request, it got more papers ; and that then he unearthed one particular document, being the proceedings of a Mess Committee. It is very unfair to suggest that because that paper was not produced in the first place, and was not produced until my honorable friend discovered it in some way or other, it was being deliberately kept back by the Department. Surely the Department could not suppose that, when it was asked to produce all papers relating to this case, it was to produce every paper in the office in which the name of Major Carroll occurred ? How could there be any unfriendliness ?
– Yes ; but when they produced a portion of the papers referring to the Mess Committee, why did they not produce the report of the Mess Committee which inquired into the deficiency ?
– I do not know whether that report of the Mess Committee was connected in any way with the papers. But, in any case, I cannot see that the honorable senator in producing the paper has helped Major Carroll. The charge which, was made - of course it is a trivial matter to refer to, but it must be done - was that Major Carroll, when a junior officer attached to A Battery, was in charge of the mess accounts, that they got into disorder, that there was a deficiency, and that he was charged with gross carelessness by a superior officer. His explanation was that while he was away, presumably on duty, the stock of the mess had diminished, and that the deficiency arose in that way. The paper which Senator Higgs produced is a record of the proceedings of the Mess Committee, and the finding was that £5 6s. 9d. of this account was to be paid by him. Surely the Department - even if it had suppressed a document of that sort - could not be said to have suppressed it in order to injure Major Carrol] ? He was charged with gross carelessness ; his defence was that there was no carelessness ; that while he was absent on duty other persons had consumed the supplies of the canteen, and the finding of the Mess Committee was that he should pay £5 6s. 9d.
– The amusing point is that Major Carroll happens to be a teetotaller.
– I made no suggestion to the contrary. Major Carroll put it that while he was away on duty other persons came to the mess and consumed the wines, or whatever it was that created the deficiency, and that he had not been guilty of gross carelessness. The finding of the Mess Committee, which included Lt.-Col. Adams, was that Major Carroll should pay £5 6s. 9d., and he continued to be secretary of the mess as before.
– They appointed a man who was guilty of gross carelessness as the new secretary.
– Major Carroll was the junior officer attached to the battery. If it is said that it was a mere voluntary service, I think it hardly likely that an officer would voluntarily discharge such duties after being called upon to pay ^5 6s. od. There is nothing much in the point except that it is not fair to make a charge against the Department of deliberately withholding documents.
– Will the honorable and learned senator tell us why the document appearing on page 274, which is a certified copy, to the effect that Major Carroll had passed as lieutenant, was not produced until some time after the inquiry had been in progress ?
– What is the number of the exhibit ?
– It is exhibit 34, and is printed on page 274.
– I think that the honorable senator was unfair to Colonel Plomer in regard to that matter. Colonel Plomer was not Commandant in Queensland at this particular time. He was not appointed Commandant until quite recently, and had nothing to go upon except the records. Colonel Plomer, in the document referred to by Senator Higgs, says that Lieutenant Carroll had not passed his artillery examination as a lieutenant then, or at any other time. Then Senator Higgs refers to an entry that has been made that Lieutenant Carroll had been appointed captain; and he also points out that Colonel Plomer says that if he had seen that entry he would have accepted it as proof that Captain Carroll had passed, presumably in artillery. The whole incident, in my opinion, shows that the records in the Brisbane office cannot have been kept as they should have been. The Committee went to Brisbane, and I presume that they called for an explanation with respect to the examination. The practice in Brisbane, as I know very well, was that when examinations took place, a printed report was sent round to every candidate. Every man who had been examined was told exactly what he had done. If he had passed his name was given. I see that in this certified copy the name of Lieutenant Carroll is mentioned. If the candidate does not pass for the grade for which he is standing his name is not given, but he is indicated by a number, so that he can find out from the record exactly how many marks he got in any subject in which he passed. It seems to me that copies of those reports ought to have been kept. It ought to have been possible to find out at once exactly when Major Carroll passed his examination.
– Was not that one of the reasons for destroying some of the documents ?
– Oh, no. I am sure that my honorable friend is quite wrong in stating that. I have every confidence in Colonel Price, and am quite sure that ‘he would not take part in any action of that kind.
– Colonel Price had nothing to do with the matter. Colonel Ricardo was in Brisbane at that time.
– I am perfectly certain that the destruction of the document had nothing whatever to do with Major Carroll.
– I disagree. I think it was done deliberately.
– What action did the honorable senator take as Minister of Defence to deal with the matter if there had been an improper destruction of papers ?
– It was done before I became Minister.
– We have the evidence of Colonel Price, the late Commandant in Queensland, who is perfectly satisfied that everything was fair and above board. I am of the same opinion.
– Colonel Price was in Melbourne at the time that this incident took place.
– Major Selheim was one of the officers concerned, and I am perfectly certain that he would not do anything which was not. fair and above board. It is a pity that the documents were not available to show exactly what examination Major Carroll had passed; but I am rather surprised that Major Carroll himself, who seems to have been a very exact and methodical man in many things, was not able to show the examinations which he passed, and when he passed them. At the same time Colonel Plomer must be acquitted of having deliberately said anything that was not correct. Against the statement which was made, that Major Carroll had not passed any artillery examinations, we have the fact that .in 1889 he passed as a lieutenant, and that in 1898 he was appointed captain, having passed part of his examination in Queensland, and having also per- formed some services at Hythe, in England. From those facts, we may conclude that he had passed his examination in the artillery as a lieutenant when he was in Queensland. But there again I do not think it is right to charge Colonel Plomer with having deliberately stated anything that was incorrect.
– I do not think that was suggested, but he said something of which he had no knowledge.
– I am referring to Senator Higgs’ statement that he was not satisfied with the information given by Colonel Plomer. I propose now to run through the list of what are called the reason.; for fhe retrenchment of Major Carroll. Major-General Hutton’s confidential letter contains the reasons upon which he arrived at the conclusion that Major Carroll was an officer whose services could be dispensed with. I do not agree with the findings of th» Committee that some of the reasons in Major-General Hutton’s letter are incorrect, and so on. The reasons lettered a and I are as follow : -
There is a case in point. The age of Major Carroll cannot be looked upon as a reason, or even as one of t’he reasons, for his being retrenched. But there seems to have been a feeling in the Department that when officers were retrenched junior, and not senior, officers should go. The policy of the Department appears to have been that age was not to be considered a special reason for keeping a man in the service, but that the contrary was rather to be the case. The explanation is that the younger men are supposed to be more capable of acquiring information and of learning new methods. It stands to reason that the minds of the younger officers are in a more receptive condition.
– Is the honorable and learned senator aware that Major Carroll has since been earning his living in teaching at the Melbourne University ?
– It is not alleged that he was too old, but that he was older than other officers. The report of the Committee states that Major Carroll is pursuing certain studies in bacteriology. There is no reason why heshould not dothat. No doubt there are other avenues of employment which Major Carroll might pursue with advantage. It is also stated that he has written a book, and that the proof-sheets are in the hands ofthe publishers. But that is no reason why he should not be retrenched from the service at his age in preference to younger men. The, feeling in the Department is that a younger man is more able to grapple with new subjects, but there is no reason why, because a man is retired from the Defence Forces on account of age, ‘he should not succeed in other walks of life. There is no reason why he should not, after he retires, write a book on a military subject. I can well understand that a retired officer might be well fitted for work of that description. In referring to the other reasons for the retirement of Major Carroll, I shall leave out matters which I shall have to refer to afterwards in dealing with the question of whether or not Major Carroll was a person who could be spared without detriment to the service. Statement b was -
That the date of his (Carroll’s) appointment to the Permanent Forces was 1st February, 1899.
That statement is described in the report as being incorrect, as may be seen from a book in which we find that Major Carroll was a Provisional Lieutenant on the 24th November, 1898. Is not this an instance of the unfairness of the Committee in dealing with matters in this way ? Major-General’ Hutton, in a private and confidential letter, makes a statement that the date of Major Carroll’s appointment to the Permanent Forces was the 1st February, 1899. It is treated by the Committee as though that were all that Major-General Hutton said in his letter of the 14th November, and that he was therefore suppressing the fact that Major Carroll had been in the Defence Force of Queensland, though not in, the Permanent Forces, in 1888. But when we turn to the letter itself we shall find that that statement is contained in it. MajorGeneral Hutton’s letter of the 14th November, 1902, will be found in the minutes of evidence at page 15, in answer to question 185. He states - “ Captain Carroll - Aged 37 years and 8 months; date of appointment to Permanent Forces, 1st February, 1899.”
And a few lines further down there is this statement - “ He joined the Queensland Permanent Artillery in 1888 as an officer on probation for three years.”
– Does he not say a little later on in His own handwriting that Major Carroll was not appointed to the Forces at that date?
– What I have quoted, is in Major-General Hutton’s handwriting. I am pointing out the unfairness of the Committee in referring to Major-General Hutton’s statement that Major Carroll joined the Permanent Forces in 1899 as being a misstatement, because he was attached to A Battery in Queensland in 1888, which statement is actually made in the same letter by Major-General Hutton, and there cannot, therefore, be any suggestion of misrepresentation. The matter becomes important when considered in connexion with the length of service which is claimed for Major Carroll. The question is raised whether Major Carroll’s services as a provisional lieutenant in j 888, the period during which he was on ‘ the Unattached List, and the period during which he was on the Retired List, should count as service, but if these matters are important, I submit that a full statement of the case has been given bv Major-General Hutton. Tt is a matter of opinion, and a matter in dispute, whether the service of this officer should count from 1888, but even if it should, Major-General Hutton has not misstated anything in his letter of the 14th November. It is clear that his statement that the date of Major Carroll’s appointment to the Permanent Forces is 1st February, 1899. is absolutely correct.
– Notwithstanding a Gazette notice to the contrary.
– There is no Gazette notice to the contrary.
– There is.
– I beg the honorable senator’s pardon, there could not be, because Major Carroll, then Lieutenant Carroll, was a militia officer in 1888, and was attached to . A Battery, which is the Instructional Corps in Queensland. He was not then a member of the Permanent Forces, but. a militia officer attached to A Battery as a provisional lieutenant. At the end of 1888 he passed his examination, and in January, 1889, he became a full lieutenant, but he was not then a member of the Permanent Forces ; and Major-General Hutton is perfectly correct in saying that the date of his appointment to the Permanent Forces was the 1st February, 1899. 1 submit that that statement could not have been misleading, seeing that Major-General Hutton in the same letter referred to Major Carroll’s services in Queensland in 1888. Then we have statement c -
That he (Carroll) was reported to MajorGeneral Hutton as being a poor instructional officer by Brigadier-General Finn.-
The Committee say that they find some contradiction between the oral and documentary evidence giving General Finn’s opinion of the officer in question. I have read both, and I can see no contradiction. In answer to question 879, BrigadierGeneral Finn says of Major Carroll - “ That he was only a fair instructional officer and that he had much to learn.”
The certificate, which is the documentary evidence that is considered by the Committee of more value than the oral evidence of Brigadier-General Finn on oath, will be found on page 272, Appendix No. 20. In this certificate, it will be found that General Finn states - “ Practical proficiency in drill and in the field - As an instructor fair and improving in infantry drill. Judgment fair. Tact fair.”
There is a foot-note which is not printed in the appendix, to this effect - “ Fair and moderate “ cannot be accepted as satisfactory in regard to any qualification in which an officer can improve himself by more attention to and study of his profession.
Major Carroll’s drill in the certificate referred to is described as “ fair, and improving in infantry drill,” and as this officer claims f fourteen years of service, his would be a case in which I think “ fair ‘ ‘ would not be considered as being a very satisfactory report. However,, that is Brigadier-General Finn’s opinion, and I may have to refer to the matter again when I come to deal with what I consider to be the main question. Then we have the report of Lt.-Col. Neild.
– Which Lt.-Col. Neild repudiates.
– And which MajorGeneral Hutton said he took no notice of.
– I heard what Lt.Col. Neild said trie other day, and he does not repudiate the report.
– Does the honorable and learned senator attach any importance to Major-General Hutton’s declaration that he attached no importance to Lt.-Col. Neild’s report?
– He might not have done so, but Brigadier-General Finn, who was Commandant of New South Wales, might have done so, because Lt.-Col. Neild was a commanding officer, under whom Major Carroll was serving. I have seen what Major Carroll has said in his evidence to the effect that he had had an interview with Lt.-Col. Neild, and that after some talk he understood that this report had been as good as withdrawn. I heard what Lt.-Col. Neild said here only the other day that, perhaps, on consideration, he might have been misinformed by some other officer, and might have proceeded on incorrect information. But honorable senators cannot get away from the fact that Lt.-Col. Neild did make certain reports to his superior officer.
– And Major-General Hutton was guided or misguided by them.
– I do not know whether he was guided or misguided by them.
– He proceeded on them.
– These reports were sent in by Lt.-Col. Neild to BrigadierGeneral Finn.
– The honorable and learned senator should place Lt.-Col. Murray’s report alongside of them.
– I have mentioned that Lt.-Col. Murray commanded another regiment to which Major Carroll was appointed as an instructor, and that he has given that officer an exceedingly good character, both as an officer and as a man.
– He is an officer who has been rewarded by the Commonwealth Government, and his services have been recognised by the Home Government also.
– Honorable senators are at liberty to make just as much of his report as they please.
– As between the reports from Lt.-Cols. Murray and Neild, I should prefer that of Lt.-Col. Murray.
– I propose to read the reports sent in by Lt.-Col. Neild, and honorable senators may attach what value they please to them. The first report will be found in Appendix 5, at page 269, and. is as follows : - [Confidential.]
From the Officer Commanding Seventh Infantry
Regiment to the Assistant Adjutant-General, Chief Staff Officer. 1st October, 1902.
It is with the utmost regret that I am compelled to report as under regarding the Instructional Staff Officer attached to this Regiment.
Captain Carroll is such an enthusiast and so courteous a gentleman that I feel extreme pain in reporting that his knowledge of infantry drill is not such as, in my opinion nor in the opinion of my officers, fits him for the position of instructor.
It is my anxiety for the well-being of my regiment that alone compels me to take a step which is highly repugnant to my personal feelings.
Captain Carroll’s actions in connexion with administrative work were so unsatisfactory^ that 1 had some time since to request his abstention therefrom, and I now find that both officers and men are likely to discontinue attendance at drills, parades, and lectures if he continues to interfere with or conduct them.
It is reported to me that many of the members of the regiment regarded the parade last night, in consequence of the mistakes achieved, as “ a huge jolce.”
The drill of the 7th has never been adversely commented on, and I am naturally anxious that a regiment which has been so careful y and successfully built up should not now be injured in the manner indicated.
May I suggest, in order that my views might be confirmed or corrected, that steps be taken to test this officer’s proficiency, and that meanwhile some work may be found for him which will relieve him of duty with this Tegiment. As I shall leave New South Wales for some weeks (five or six) after the end of next week, I beg immediate attention to this urgent request.
Then at page 270, Appendix No. 9, there is the following report : - [Confidential.]
From the Officer Commanding 7th Infantry
Regiment, St. George’s English Rifles, to the Assistant Adjutant-General.
PARADE OF THE 30TH SEPTEMBER.
As instructed, I beg to furnish a detailed report regarding the above parade.
Infantry Training 1902, but were prevented by the Staff Officer, for what reason is not known. There was sufficient light to see that sights were correctly adjusted, and that the men carried out the movements required of them.
No such incident has ever previously occurred in this regiment, the conduct of the men hitherto being exemplary.
Jno. C. Neild, Lt.-Colonel,
Commanding 7th Regiment.
I find that the evidence given by Captain Kirkland practically supports Lt.-Col. Neild’s view of Major Carroll as expressed in these reports. This was information furnished to the State Commandant, BrigadierGeneral Finn, and it was naturally his duty to refer to it in reporting to MajorGeneral Hutton, when the General Officer Commanding was making inquiries regarding the qualifications of this officer. I think that the statement that Major Carroll was reported as a poor instructional officer is amply borne out. The only possible difference to be found is, that while he is described by one as a poor instructional officer, he is described by Brigadier-General Finn as “ Fair, and improving in infantry drill,” but the latter states that “fair” is not to be taken as good in a case where an officer has had an opportunity to improve himself bv diligent attention to his studies. The next, is, d, as follows : -
That Lt:-ColoneI Neild, his (Carroll’s) immediate Commanding Officer, who made a special point of coming to him (General Hutton) in Major Carroll’s regard, stated that he was perfectly us’-tess as an instructional officer.
Whatever view Senator Neild may now take that was the statement he then put in writing.
– Brigadier - General Finn said that he did not attach importance to that opinion.
– But the honorable and learned senator seems to be attaching some importance to the opinion.
-Never mind whether or not the opinion made an impression on Brigadier-General Finn, we have the statement by Lt.-Col. Neild. That is one of the statements contained in Major-General Button’s letter, which is condemned and discounted generally by the Select Committee; but it is a- statement which, at all events, must be considered to have been amply proved by Brigadier-General Finn’s opinion of Major Carroll. Then we have reasons, e and k, as follows: -
I shall not refer to those two reasons now. The finding of the Committee on this point is, that the views expressed by MajorGeneral Hutton are unsound. In order to come to a conclusion as to whether Major-General Hutton’s opinion was well-founded or not, we must consider the whole of the evidence, so far as it has been made available, on which the Major-General may have formed the opinion. If the opinion of MajorGeneral Hutton is to be combated, we must appeal to the evidence given by the officers with whom Major Carroll came in contact.
– In that connexion, why not quote Col. Aytoun’s opinion?
– I shall quote his opinion. We have nothing direct from Major Aytoun, but we have the evidence of Major Deacon and Lt.-Col. Spencer Browne as to what Col. Aytoun said. What I desire to refer to is the question of what was Major Carroll’s military proficiency, if I may use that expression. Reasonf is -
That Captain Carroll joined the Queensland Permanent Artillery in 1888 on approbation for three years, at the -end of which time he was found unsatisfactory, and was placed on the unattached list.
The Select Committee speak of that reason as “ inaccurate and misleading “ ; and on this point I think it better to refer to the report itself, as follows. On page 22 we read -
Major-General Hutton, in his sworn written statement before the Committee (Q. 345)5 said that at the time of his arrival in the Commonwealth on the 27th January, 1902, he had no personal acquaintance with Captain Carroll, but “ information was given him at first hand which enabled him to form a correct judgment in the matter.” He further said - “ Having concluded a preliminary investigation as regards the officers whom it would be possible to retrench, I, in May, 1902, proceeded to Queensland to arrange on tlie spot the drastic retrenchment which it was found necessary to carry out in accordance with the expressed desire of the Queensland Government, and, in accordance with the directions of the Minister of Defence and the Commonwealth Government
At that time, I, on the spot at Brisbane, personally ascertained the respective merits of the officers named. . . I found that the information which I had already obtained as regards Captain Carroll was correct. It appeared that he had been attached to the Permanent Artillery as a probationary officer - 1889 to 1891. It appeared that although he had passed a simple artillery examination, as laid down for young militia artillery officers, he had failed to pass any of the examinations laid down for officers to be appointed to the Permanent Artillery of the State. I further found that he had once been placed under arrest, and that his service generally was of such an unsatisfactory character that his probationary appointment was not confirmed. After having been attached as a probationary officer to the Permanent Artillery, and having failed to qualify or to satisfy the conditions for a permanent appointment, he went to England and was placed on the unattached list of the State.”
– Did Major Carroll not say that he was going to England to study ?
– It was doubtful why he went to England; some private reasons were mentioned, but it is not necessary to go into the matter. The report of the Committee proceeds -
Lt.-Colonel W. H. P. Plomer, Acting Commandant, Commonwealth Forces in Queensland, who was brought by Major-General Hutton to ;give evidence before your Committee (Q. 1833- 34), said, in reply to” Q. 1565, “I have had very little dealings with him (Major Carroll) personally.” In reply to Q. 1566, - “Did you ever have occasion to find fault with Major Carroll?” - Lt.-Colonel Plomer said, “Not myself.” He also admitted that he could not of his own personal knowledge give your Committee an opinion with regard to Major Carroll’s military capacity as an officer (Q. 1652). Lt.-Colonel Plomer however said - “ I know from documentary evidence that his services. While attached to the Permanent Artillery, were not satisfactory (Q. 1617J. “This documentary evidence shows that Major Carroll was absent from the 4.30 p.m. parade, - “
And so on. Then arises the question as to the mess accounts, to which I have already referred. The matter of saluting was referred to by Senator Higgs, and no doubt Major Carroll was in trouble once or twice with his superior officers, but that may not be of much importance. The statement which is said to be inaccurate and misleading is, I presume, that Major Carroll was found unsatisfactory. Major Carroll was three years a military officer attached to the battery, and. although he passed as lieutenant, he did not pass as captain at the time he was retired ; and I understand his probationary appointment was not confirmed. It may be a matter of opinion as to whether he was or was not satisfactory. General Hutton, on the information he had received from his officers, considered that Major Carroll’s three years’ service in Queensland was not satisfactory, and I cannot see that the Committee really had any evidence on which they could say that the Major-General was wrong in that respect. Now we come to another passage in the letter where, liberally, the statement was inaccurate beyond any doubt. That statement is contained in reason g, as follows : -
That in r8g7, while in England, he (Carroll) made himself useful to the then Premier of Queensland, Sir Hugh Nelson, who, in 1889, gave him his commission with the Permanent Forces of Queensland.
That is inaccurate, the names and dates being certainly wrong. But I must say emphatically, as I have said in regard to a great many other points, that that was never alleged as a reason why Major Carroll was retrenched in 1892. From the cross-examination of witnesses, some of the members of the Select Committee seem to have regarded this statement as containing a charge which Major Carroll had to rebut.
– That was absolutely written and signed by Major-General Hutton himself, and, as an ex-Minister of Defence, Senator Drake ought to know that.
– It was a mistaken explanation of a certain promotion.
– It was an absolute and deliberate lie.
– I am sorry to hear Senator Dawson use language by which no good can be done. If any one desires to make a statement which is untruthful, with the intention to deceive, fee will certainly not make it in such a way that reference to an ordinary calendar will show the inaccuracy. Major-General Hutton, in that letter, was simply crystallizing reports that had reached him from officers, as to the reason why Major Carroll should have been appointed to the Permanent Forces in 1899, after having been for such a long time absent from Queensland, and after services which, at all events, could not be said to have been brilliant. There were many changes in the Government of Queensland about that time, and what gave rise to the rumours clearly was that Major Carroll, after having been away travelling in England and elsewhere, was suddenly appointed to a position in the Permanent Forces. Major Carroll certainly kept his name prominently before the authorities.
I notice he said in his evidence that he had not made an application for a position which he did not know <to be vacant ; but it is no detriment to him to say that he kept himself as prominently forward as he could. He asked that his name might be taken from the Retired List and placed on the Unattached List, and he was placed on the latter as captain in 1898. He was informed of the fact, and, in acknowledging receipt of the letter,, he expressed the desire to be given a permanent position in the Defence Forces of Queensland. Then the Commandant, Colonel Gunter, on the 22nd December, 1898, wrote a letter to the Chief Secretary, suggesting that Major Carroll should receive an appointment. In 1897, the Jubilee Year, the Premier of Queensland was undoubtedly in England, and no doubt other Queenslanders were visiting the old country at the same time. In fact, Major Carroll has said that he saw Major King, Sir Horace Tozer, and others in England, who might perhaps have been able to say a word for him in Queensland. But there can be no doubt that when he was appointed to the Permanent Forces, in 1899, the fact, according to the evidence of several officers, caused surprise, and many suggestions were offered as to the reasons why this appointment had been made. Turning to Major-General Hutton’s written statement, on page 33, I find this evidence -
It appeared that in February, 1899, Captain Carroll was appointed to the Permanent Staff of the Military forces of Queensland. The reasons of the appointment were unknown, but it was stated to me that his appointment was made by then Premier of Queensland, acting, probably, on representations of a favorable nature made in regard to this officer.
– In Queensland we could not find one officer who would say that he had made any remark of the kind to Major-General Hutton.
– I beg the honorable senator’s pardon. There was Major Selheim, for one. I cannot put my finger on the passages in the evidence, but there were other officers who said that statements of that kind had been made.
– Major-General Hutton’s charge was that Major Carroll had made himself useful to the Premier.
– At page 34 I find this statement in the evidence of MajorGeneral Hutton - 347. Upon what information did you base the following statement which appears in your letter to the Minister of Defence of 17th September, of last year : - “It appears that in 1897, while in England, he made himself useful to the then Premier of Queensland, who, in 1899, gave him his recent commission with the Permanent Forces of Queensland.”
I based that statement upon information which I obtained in Brisbane from officers from whom I made inquiries ‘regarding the professional character of Major Carroll. It was currently supposed that he had been nominated to the vacancy on the Permanent Staff by the then Premier of that State, who I believe was Sir Hugh Nelson.
That was the supposition which was Culrent. The officers in Brisbane could account for Major Carroll’s return to the Permanent Forces of Queensland on no other ground than that, whilst he was in England, he had made himself useful either to the Premier of that State or to somebody else, and that on that account representations had been made in his favour.
– Can the honorable and learned senator mention any officers who corroborated the assertion of MajorGeneral Hutton, that he had been informed that the statements had been made?
– I cannot tell the honorable senator from memory, but Major Selheim is one of those who did. I have endeavoured to go very diligently through the evidence, but I cannot undertake to find, when challenged, any statement of that kind.
– Officer after officer denied that he made the statement.
– Do I understand the Minister to say, that Major Selheim so informed the Major-General ?
– Speaking from memory, he said he had heard that there was some talk of that kind in Queensland.
– He did not tell the General Officer Commanding that he knew that there had been.
– The honorable senator must not expect me to undertake to give from memory the details of the evidence, because no one could do that.
– But the honorable and learned senator, without any evidence, can take away the character of a man.
– I am sure that the Select Committee gave Major Carroll every possible opportunity to bring forward evidence. On page 34, I find this evidence by Major-General Hutton - 354. Can you give the Committee the name of one officer who told you that Major Carroll had made himself useful to the then Premier of Queensland ? - I think that I could give the names of the lot of them. My aide-de-camp will tell you that that is the opinion of every officer in Queensland. Nevertheless, it has not a material bearing upon this case. I merely advance it as a reason why Major Carroll was re-appointed to the forces after his services had been dispensed with.
I am not going to make any definite statement from memory, but I undertake to say that there is evidence., by some officers, that there was amongst officers in Queensland a rumour of that sort as to the reason why Major Carroll obtained the appointment..
– At every meeting I attended, questions were put, and I could not find an officer who remembered having said anything to Major-General Hutton about the rumour.
– Major-General Hutton must have got the rumour from somebody, or else it could not have been mentioned in his letter.
– Why did he say that he was informed “ by nearly every officer in Queensland “ ?
– This is what Major Carroll, himself, says about this incident - 6584. You say that an offer was made to you to go back to the staff in Queensland (questions 29 and 30, page 3)?- Yes. 6585. How did you get that offer? - Through the secretary acting for the Agent-General in London, who was then, I think, Captain Charles Dicken 6586. Do you wish the Committee to understand . that the offer was made spontaneously, without any effort on your part? - Absolutely. 6587. You did not ask to be appointed? - Never. I did not know that the appointment was open. I was never more surprised in my life than when I received a letter asking me to accept the appointment.
Here is what has evidently given rise to the rumour. Major Carroll knew, of course, what his services were in Queensland during the three years from 1888. He knew that he had kept himself in touch with the Department. He had actually asked for an appointment on the Permanent “Staff, and yet, when he received an appointment, he said that he was never more surprised in his life. I do not wish to suggest undue influence or any pressure of that kind ; but if there was no special military reason for that appointment, and it was such a surprise to Major Carroll, is it wonderful that persons should suppose that political influence obtained it for him? And, going a step further, Colonel Price thought that the fact that
Major Carroll was in England at the time when a number of prominent persons from Queensland were there-
– I say nothing against that supposition, but what is surprising is the fact that Major-General Hutton -should have said that he was told by “ nearly every officer in Queensland “ that such statements bad been made.
– No; he said “the aide-de-camp will tell you that that was the opinion of the officers.”
– I must ask honorable senators not to interrupt, as it only leads to altercation.
– All it meant was that it was common talk. The appointment of Major Carroll could hardly be said to be due to military services ; if it had been he could not have been surprised. Why should he have been surprised if he had shown himself to be so conspicuously proficient that he was marked out as a promising officer?
– Does the Minister still maintain that it was political influence which procured the appointment for him?
– I do not say that it was political influence; it might have been social or other influence. An officer serves for three years without any distinguished credit, is put on the Retired List, and goes to other parts of the world ; and if he receives an appointment on the Permanent Staff, to his own great surprise, in 1899. it gives rise to the thought that he must have 0had “ a friend at court.” I cannot put my ‘hand on Colonel Gunter’s letter, but in the evidence there is a letter in which he recommends to the Chief Secretary the appointment of Major Carroll to this position, and which suggests the question, whether he was interesting himself on the officer’s behalf. Honorable senators will quite understand that when Major Carroll did receive this appointment, to his great surprise - and it was one which clearly was not due to his military services - it was not at all strange that it should have given rise to a rumour amongst officers that he had probably “ a friend at court.” We all know how rumours occur. The rumour reached Major-General Hutton in a ‘distorted form. When he was called upon by his Minister at short notice to state his grounds for having arrived at his decision, it was not surprising that he should have been verbally inaccurate in making the connexion between the service in Queensland in 1888, and the appointment in 1899.
– Not verbally, but actually inaccurate. The sting in the statement was that Major Carroll had made himself useful to the then Premier. What right had the General Officer Commanding to make, a charge like that without having some information to go upon?
– At all events, ‘ that was not the reason given for the retrenchment of Major Carroll. The duty of the Select Committee was to find out whether the reason given for his retrenchment was true, and whether Major-General Hutton was right in retrenching him instead of some other officer, and that statement in the letter has no bearing on the subject. They find that statement g was inaccurate and misleading - [A) That he (Carroll) was sent to South Africa almost immediately after as adjutant of the contingent under the command of Lieut. -Colonel Aytoun ; that he again proved unsatisfactory and unsuitable for the responsible duties of adjutant, and returned to Queensland.
On that point the Select Committee :av -
As to whether Major Carroll was found unsatisfactory and unsuitable for the responsible duties of adjutant the evidence is conflicting.
I prefer to deal with that point later on, because I do not wish to repeat the evidence. On page 25 of the report, the Committee say -
Major Deacon, in his evidence, also said that Colonel Aytoun said - “ Major Carroll made him quite ill, that he did not know what -to do with him “ (q. 576) ; that he complained Major Carroll had not conveyed, his messages correctly (q. 625). Your Committee regret the absence of Lieut.- Colonel Aytoun from Australia, because the oral remarks stated to have been made by him to Major Deacon, General Hutton (qs. 346-357), and Lieut-Colonel Plomer (q. 1561), are inconsistent with his recommendation at the end of the war that Major Carroll should receive the war bonus because his services had been “ quite satisfactory” (q. 155). Major Carroll alleges that when Lieut.-Colonel Aytoun was going through Sydney on his way to Scotland about October or November, 1902, he met him, and Lieut. -Colonel Aytoun asked - “Have you been retrenched?” Major Carroll replied- “ Yes.” Lieut.-Colonel Aytoun then said- “ Well, it is a damned shame” (q. 6511).
There is some evidence by Lt.-Col. Spencer Browne as to the opinion which Colonel Aytoun had formed. It is a curious thing that here, as in other parts of the evidence, witnesses who came forward to testify in regard to Major Carroll, showed the kindliest possible feelings towards .him personally. Here is a case that is brought up, as showing the inconsistency of Colonel Aytoun, though the evidence goes to show that Colonel Aytoun expressed opinions adverse to Major Carroll and his service in South Africa. When, however, it came to the question of enabling Major Carroll to draw a gratuity of £100, which had to depend upon Colonel Aytoun’s certificate, the colonel marked1 his services as being quite satisfactory. It is also said that Colonel Aytoun met Major Carroll, and said that it was a shame that he had been retrenched. That does not mean very much, because Colonel Aytoun was not saying whether Major Carroll ought to have been retrenched in preference to any one else, but he looked upon it in the light that Major Carroll was a good fellow, and he was sorry that any officer should be retrenched. The same feeling is also exhibited in the letter sent by Major-General Hutton, in which the late Commandant expressed his regret at having to retrench many valuable and deserving officers’. There was a disposition, not only on the part of Colonel Aytoun, but on the part of every one else, not to say anything unkind concerning Major Carroll if it could be helped. Statement i is -
That he (Major Carroll) subsequently returned to South Africa on leave, and was attached in one capacity or another to the Royal Artillery until called to Australia by the Commonwealth at the termination of the South African campaign.
The comment made upon that statement by th-? Committee is -
To say that Major Carroll was attached “ in one capacity or another “ to the Royal Field Artillery is not adopting an exhaustive method1 in which to relate his history, and scarcely does him justice.
We must remember, again, that the statement referred to is merely a sentence in a private and confidential letter, written by the General Officer Commanding to his Minister. It was not expected by the Minister that an exhaustive method would be adopted.
– Major-General Hutton himself, claims that there was a complete and exhaustive correspondence.
– That could hardly be taken to mean that he was giving an exhaustive account of Major Carroll’s history. It would have been unreasonable for the Minister to expect it, and certainly the’ late Commandant did not pretend to do anything of the kind. Statement m is -
That he (Major Carroll) had never represented his case to General Finn or General Hutton, anr! if he had submitted his grievance to the Minister of Defence he had committed a serious breach of military discipline.
There is a difference of opinion as to whether Major Carroll committed a breach of military discipline in going direct to the Minister. But certainly it is hard to see how any Department could be carried on if officers had the right to go direct to the Minister with their grievances..
– The Committee admit that.
– Statement n is -
That the officers mentioned in the Minister’s note had all of them qualifications which placed them in the category altogether above Major Carroll ; that Major-General Hutton could, if the Minister wished, give the particulars of them all, but in the face of what he (MajorGeneral Hutton) had stated in the case of Major Carroll he could scarcely conceive that the Min. Ester would think it necessary.
I am sorry to say, in connexion with that statement - upon which I shall have to comment later oh - that the names of four officers have been introduced, though not one of them was allowed the opportunity to defend himself. If Major Carroll ought to have been retained whilst these four officers ought to have been retrenched on the ground that they were inferior men, why should they not, when inferiority was alleged against them, have an opportunity to give evidence? But, strange to say, I find that not only were they not invited to do so, but that Colonel Tom Price, who mentioned the names of the officers, was not allowed to be cross-examined by Captain Niesigh. the representative of the General Officer Commanding, with reference to their qualifications.
– Colonel Tom Price did not single out those men, but two others.
– Yes, there were two others. I thank the honorable senator for reminding me of the fact. So that it comes to this - that actually six officers have had their position in the Defence Forces, and their military character, called in question, and not one of them has been allowed to show the nature of his military acquirements.
– The Committee did not invite witnesses to give evidence. We left it to the parties to call their witnesses.
– But these six officers were not made parties to the inquiry.^ The Committee were sitting to do justice to Major Carroll, and it appears to me that they have done less than justice to these six officers in allowing their names to be introduced without giving them an opportunity to defend themselves.
– The honorable and learned senator sees the length of the inquiry ; we had to cut it down somewhere.
– I do see the length of it, and that bears out entirely what I said in the first place - that this was not a proper case for an inquiry by a Select Committee. But it is hard on these six officers that . their military qualification should have been called in question without even allowing the officer who mentioned their names to be cross-examined about them.
– Does the honorable and learned senator blame the Committee for publishing the names of the officers?
– I do not blame the Committee, but does not the honorable senator see that it was a question as between Major Carroll and the six officers whose names were mentioned? Not a word was said against them, except by one of the witnesses, who insinuated that’ they were somewhat inferior in some respects to Mjor Carroll. I complain that Captain Niesigh was not even allowed to cross-examine Colonel Tom Price with respect to these officersIt will be seen on page 215 of the evidence at question 5444 that a comparison was made between Major Carroll and two captains, whose names are mentioned. The witness was asked questions about these two captains, whom he said should have been retired before Major Carroll. Then at the foot of page 215 it is reported -
Major Carroll protested against this line of examination. The Chairman disallowed further examination on these lines as taking up the time of the Committee unnecessarily. Captain Niesigh pressed to be allowed to continue his examination, as showing the relative merits of officers.
At the top of page 216 it is reported -
The Chairman stated that in the opinion of the Committee it was unnecessary in view of Colonel Price’s experience as a military officer, to cross-examine him as to the reasons which prompted him to consider, that the two captains mentioned were not equal to Major Carroll. While trying to do justice to Major Carroll, the Committee have evidently been doing serious injury to other officers.
– We allowed plenty of latitude.
– Too much latitude altogether. The Committee appear to have been guided bv no rules of evidence whatever. Thev seem to have allowed witnesses to be examined at any length, so that the report is unwieldy.
– We did that so that the General Officer Commanding might have the greatest latitude.
– The very fact that so much latitude was allowed at other times makes it all the more remarkable that these, witnesses should have been prevented from giving evidence, and that Colonel Tom Price should not have been cross-examined as to their qualifications.
– Will the honorable and learned senator allow me to say that if Captain Niesigh, as the representative of the General Officer Commanding, had called one of these officers, he would have been heard?
– But Captain Niesigh was the representative of the General Officer Commanding, not of the six officers referred to. The probability is that they did not know that allegations had been made against them. Some of them may not have heard of it to this day. I say again that, in order to do justice to Major Carroll, the Committee have brought reproach upon other men, who had nothing to do with the case. Statement o is as follows : - i
That the case of Major Carroll was the subject of much personal discussion and consideration between the Minister of Defence and the General Officer Commanding, as well as the subject of exhaustive private correspondence, dated 12th and 14th November, igo2.
It was exhaustive so far, perhaps, as the subjects were concerned, but it would be unreasonable to suppose that the MajorGeneral could give the full particulars and details in private letters. Statement p says -
That his (Major-General Hutton’s) views, as expressed by the Minister, were clear and to the point, and he had nothing to add to his recommendations regarding that officer (Carroll). The case was dealt with by him (Major-General Hutton) on its merit with all the facts before him as regards Carroll’s past and present . services.
The finding of the Committee upon that is, that Major-General Hutton ignored Major Carroll’s past and present services. Any one who takes the trouble to go through the evidence given by Major-General Hutton, must see that he was apprised of the facts in connexion with Major Carroll’s past and present services, and there is no reason to doubt that he took them into’ consideration. It may be said that a Committee appointed to travel from State to State, and which examines fifty-six witnesses, will, if it is diligent, find out more than Major-General Hutton could find out by visiting Queensland, and calling upon such officers as he could take advice from. I’ point out that the Committee visited Queensland, and took the evidence of a number of militia and volunteer officers. They were not officers permanently connected with the Defence Forces, and I believe that in almost every case they were officers under whom Major Carroll had never served^ They were his brother -officers, and I haveno desire to say anything to their detriment. They gave evidence, as did nearly all the witnesses, of the gentlemanly character of Major Carroll, and also as to the work he did. But the Committee seemed to think that because they had these volunteer officers brought before them to give evidence, Major-General Hutton should have been able to avail himself of similar sources of information. It must not be forgotten that the militia and volunteer officer has his own business to attend to. When Major-General Hutton, in the discharge of his duties, went to Brisbane to find out from officers on the spot which men could best be spared, he necessarily went to officers in the permanent service of the Commonwealth. Naturally, on such an occasion he would not be in touch with the militia and volunteer officers, who would be attending to their private business during the time he was in Brisbane. It was, therefore, not unreasonable that Major-General Hutton should have said that he dealt with this case with all the facts before him in regard to Major Carroll’s past and . present services. He could not inquire of militia and volunteer officers what they knew of Major Carroll, but he called on the State Commandant, and the chief-staff officers and officers of the Permanent Forces in Brisbane, and got from them all the information he could obtain with regard to Major Carroll’s services There is another matter mentioned in the report, and also in the speech made by Senator Higgs, to which I must briefly refer, that is, with respect to misstatements made by Major Carroll, dealt’ with in. statements r and s in the Committee’s report. I should say that this matter arises out of a letter from. MajorGeneral Hutton to Sir John Forrest, who was at that time Minister of Defence, and dated 19th July, 1903. This letter’ will be found at page 16 of the minutes of evidence. It was written in reply to a letter from Sir John Forrest, stating that’ it was necessary that good reason should be . shown for retrenching Major Carroll. Statement r embodies the substance of the letter, and is as follows : -
That Major Carroll had clearly made three misstatements - (1) that he had asked General Button’s permission to see the Minister, and that General Hutton had no objection.
I think it is admitted that that was a misstatement.
I think it is admitted that that also was incorrect.
This matter is disputed. The fourteen years of Queensland service is reckoned in this way : Major Carroll was appointed lieutenant provisionally in 1888. He was for three years attached to A Battery, Queensland. He afterwards left Queensland, and was placed on the Unattached List. Later on, inadvertently or wrongly, he was removed from the Unattached List to the Retired List. He remained on the Retired List until 1898, when he was brought back to the Unattached List with the rank of captain, and in 1899 he was appointed to the Permanent Staff. On this Major Carroll made the statement to the Minister of Defence that he had had fourteen years’ Queensland service, and he still holds that that was a correct statement. The Minister, Sir John Forrest, has said that he was misled by that statement, because he understood from it that Major Carroll had been fourteen years continuously in the Queensland service. Statement s is as follows : -
That he (Major-General Hutton) would be sorry to impute any wilful intention on Major Carroll’s part to state what was not true ; but Major Carroll’s conduct in this respect confirmed the impression which he (Major-General Hutton) held, and which was similarly held by General Finn and Lt. -Colonel Neild, that Major Carroll had shown unmistakable signs of eccentricity which might or might not have been caused by his recent service in South Africa, but which in any way show that his qualities as an officer are such as to render it undesirable that he should be retained in the service.
I do not propose to go through all the evidence on this branch of the subject. I say at once that I am very sorry that, the term “eccentricity” has been introduced at all, because it is a very elastic term.
– It was the main charge made by a number of officers right through the inquiry.
– The . term is so elastic that it might be said to have almost any meaning. It might mean nothing more than that a man wore his hat hind side before, and it might be stretched sufficientlyto justify Senator Higgs in speaking as he did. I do not believe that any of the witnesses used the expression with the intention that it should bear any bad meaning.
– That is so; none of the witnesses said so.
– If they had done so, I should have had no sympathy with that use of the expression.
-That is to say that Major-General Hutton’s conclusion is not supported.
– No. I think that he should not have used a word which is so elastic in its meaning, and which might be taken to convey a great deal more than was really intended. I disavow its use myself, from my personal knowledge of Major Carroll, whom I know to be a most zealous, painstaking, and hard-working officer. I should not like it to be thought for a moment that I held the view that any one would be justified in attaching to the word “ eccentricity,” as applied to Major Carroll, the meaning attached to it by Senator Higgs in the remarks which he made.. I do not believe that any of the witnesses, in using the word, intended that it should bear such a meaning. We have here an officer whom every one liked and admired, and who took to the military profession, though not early in life, as he must have been 24 or 25 years of age. It is evident that he. liked military ‘ life, and wished to excel in it. He was zealous and diligent; and worked hard, but in spite of all he has not jbeen a success: That is . as much as can be said. He was attached to A Battery in Queensland, and that gave him the very best opportunities to distinguish himself by pass ing his examination. He left the battery at the end of three years without having passed his examination as captain, whilst many men with nothing like his abilities in other respects would probably have successfully passed the examination in less time. This is what we find throughout the evidence. If we look at the evidence with respect to his services in South Africa, we find him spoken of as a very brave man, and “ a great goer.” In f act, his courage has .never ! been called in question, and yet officers like Colonel Aytoun, who cannot be said to be actuated by any but the most friendly ‘feelings towards him, give him unsatisfactory reports so far as his actual work is concerned. I shall have to refer later on to the evidence of Major Hooper, under whom Major Carroll served in .North Queensland. I do not think that the Committee was justified in shutting out the documentary evidence submitted by Major Hooper. Major Carroll was under this officer in North Queensland, and his report of him is unsatisfactory.
– He would not swear to it. Why should he not swear to it?
– He was willing to come before the Committee as a witness. The Committee desired to call on Major Hooper to do something which they had no right to call upon him to do.
– He offered to do it himself.
– They got the opinion of the Attorney-General, and it was that they had no right to call upon him to make a statutory declaration.
– He agreed to do it first, and then refused to “do it.
– He has given what, in my opinion, is a very good reason. He was willing, he said, to make a statutory declaration.
– If called upon to do so by the Committee.
– But what the Committee did was to set certain fixed questions, which they sent up to him to be answered.
– No; we asked the parties to set them.
– It was practically administering interrogatories. Both sides set down certain questions, to which they required answers, and those were sent to Major Hooper, who was expected to reply to them in the form of a statutory declaration.
– Was not that quite fair ?
– What Major Hooper said was, “ I cannot say anything that would be favorable, and I shall not say anything at all unless you can show me that you can compel me to do so.” The Committee then took the advice of the AttorneyGeneral, which was that they could not do so, but that they could bring him before another witness.
– But he had already stated these unfavorable conditions.
– The Committee desired the Defence Department to bring Major Hooper down as a witness, and Captain Niesigh said that if the Committee would give ‘him authority to bring him down he would order him down to Brisbane at once. Of course the expenses would then have had to be paid by the Department. But the Committee took up this position : They said - “ You must answer these interrogatories, and make a statutory declaration.” This they had no power to compel Major Hooper to do. They further said - “ If you will not do that, we will not summon you as a witness, and because you are not here to give evidence under oath, we will repudiate and take no notice of the documentary evidence supplied in the report you have already submitted.”
– Were not the Committee justified in trying to prevent enormous expense?
– I say that it looks very like rejecting evidence, and the Committee commenced’ to think of saving expense at the wrong place. Major Hooper is a militia officer, and a State school teacher.
– Has not the honorable and learned senator cast doubt upon the value of the testimony of militia officers ?
– I mention militia officers only as not being available to MajorGeneral Hutton in the same way as permanent officers, because the former would be engaged in their ordinary employments. In the case of Major Hooper, the Committee were not, I think, justified in declining, on the score of expense, to authorize his being brought down to give evidence.
– Major Hooper had already made allegations which were derogatory to Major Carroll, and all we asked was that he should swear to his statements, and he refused.
– The Committee did not ask for a statutory declaration as to the truth of the statements, but for a statutory declaration in regard to certain questions which were to be submitted to him by the Committee at the instance of both sides. That was an administration of interrogatories, which was not in the power of the Committee ; and it was then that Major Hooper replied that he could not say anything in favour of Major Carroll, and would not voluntarily say anything against him. Why should Major Hooper voluntarily make a statement against Major Carroll if he did did not desire to do so?
– Major Hooper was asked to swear to what he had previously stated.
– Did the Select Committee require all documents to be sworn £0?
– All that were of importance.
– In the case of BrigadierGeneral Finn) Senator Higgs told us that the Committee attached more importance to the documentary evidence than they did to the oral sworn evidence. Why should the Committee not attach more importance to the official report of Major Hooper to his Department, than to sworn or unsworn evidence received afterwards ?
– There wese special circumstances. The way in which Major Hooper treated the Committee, made us rather doubtful.
– I cannot see that , Major Hooper treated the Select Committee badly. He could not have been expected to come down to give evidence unless his expenses were paid
– Major Hooper first promised to make a statutory declaration, and then suddenly withdrew his promise.
– Major Hooper sent down his report, and said he was willing to make a statutory declaration. The Select Committee were not satisfied with, that, and, after the question had arisen as to his being brought down, they decided to administer interrogatories. But they took the advice of the Attorney-General of the Commonwealth, and were told that they had no power to administer interrogatories.
– Major Hooper, after he had promised, said he was unwillig to make a statutory declaration.
– And he gave his reason on the 14th July, according to the telegram sent on the 14th July, and recorded on page 202 of the evidence, as follows : -
I am unwilling to make any voluntary declaration as evidence in Carroll case, because my evidence could not favour Carroll, and I do not wish to pose as his voluntary accuser. If I have to give evidence I consider I should have opportunity of meeting, by personal evidence, any statement already or afterwards made by Carroll or others. My confidential report to Commandant was called for by Commandant, and I consider
I was compelled to make the report. Every statement in thai report can be substantiated, or it would not be made. - (Sgd.) Major Hooper.
– Does the honorable and learned senator think that that would have been voluntary evidence?
– Most certainly. In the matter of an accusation against another person, how could Major Hooper have been protected? Evidence given on oath before a Select Committee is privileged ; but there is no such protection for a voluntary declaration. Captain Niesigh wanted to bring Major Hooper down, but the Committee, in order to save expense, did not have him summoned, and, because he did not answer the interrogatories, the Committee have no right to ask us to ignore his report to the Commandant. The Select Committee will surely not ask the Senate to believe that Major Hooper’s report is altogether unreliable, simply because he was not called as a witness? The object is to do justice between Major Carroll and MajorGeneral Hutton, and how can justice be done if most important evidence is de- . liberately ignored? With regard to the statements in the letter which the Select Committee have discounted as not being borne out, I only wish to say that in my opinion those statements are substantially supported. The evidence shows that MajorGeneral Hutton was amply justified in writing the letter of the 14th September, to the Minister of Defence. There may have been slight inaccuracies, but substantially, that letter was a correct statement of the grounds on which Major-General Hutton had taken action with regard to Major Carroll. As to the first finding of the Select Committee that the reasons given are unsound, I submit that the statements in the letter were substantially correct. The Select Committee find that Major Carroll was not justly treated by the military authorities of the Commonwealth, and they recommend that he should be reinstated. The injunction of Parliament that there should be retrenchment still stands - it has not been suggested that the policy should be departed from. And, therefore, if Major Carroll is to be retained in the service, some other officer must be dispensed with, and the names of six have been mentioned in this connexion. There is, at all events, ample evidence to show that Major-General Hutton had grounds to justify him in deciding to retrench Major Carroll ; and even if the Select Committee, after examining all those fifty-six witnesses, have arrived at a different opinion, what does that amount to? Suppose the Select Committee had taken evidence in regard to the qualifications of those six officers, and had come to the conclusion that one of them should be retrenched instead of Major Carroll, would that have shown that Major-General Hutton did wrong, or that Major Carroll was treated unjustly? I do not think so; all of us, and all institutions, are human. The Major-General was called upon to retrench and dismiss officers, and he did the best he could. He went to officers whom he could trust, and, on their opinion, decided who should be selected to go. Suppose it did happen that the -Major-General made a mistake, where is the injustice? Every officer in the service must admit that there is no infallible power to. decide as to exact qualifications. We must trust somebody, and in this case I submit it was the MajorGeneral who should be trusted to make a selection. There is not the slightest suggestion that Major-General Hutton was actuated by any bias. This took, place in 1902, when Major-General Hutton had not met Major Carroll, and knew nothing of him. The General Officer Commanding simply went to Queensland and made inquiries without knowing anything good, bad, or indifferent of that officer, and there cannot be any possible suggestion of bias.
– The officers who spoke to the General Officer Commanding about Major Carroll appear to have desired to make a sacrifice of that officer. I am speaking of those who advised MajorGeneral Hutton, whoever they we’re; it is hard to find out who was the man, or who were the men, who made the statements to Major-General Hutton about Major Carroll.
– There is a good deal of evidence to which I intend to refer, but as I cannot conclude in the time at my disposal to-day, I ask leave to continue my remarks when the matter comes before us again.
– Is it the pleasure of honorable senators that Senator Drake have leave to continue his remarks?
Honorable Senators. - Hear, hear.
In Committee (Consideration resumed from 23rd November, vide page 7306).
Clause 2 -
In this Act, “ goods “ includes every description of wares, merchandise, and things, except live animals.
– It may be convenient if I very shortly state the result of the consideration I have been able to give to the suggestions made by various honorable senators, with a view to make this Bill more effective. As I stated last evening, it will, I think, effectually carry out the purpose as it is; but I admit that, the point to which attention was then directed may well be provided for, and, therefore, with the permission of the Committee, I shall refer to the four amend- ments I propose to make with that object. In the first place, I think I ought to call attention to a very valuable suggestion made by Senator Givens, with a view to make the measure apply -to ships carrying cargo between port and port in a State. The Bill as prepared goes a little beyond what the American and New Zealand legislation embraces, by including ships carrying goods from one State to another State. My honorable friend called attention to the position of Queensland - and his remark equally applies to other States - and suggested the advisableness of inserting an amendment which would make it so applicable. That involves a very difficult question as to the Federal power to deal with shipping within a State.
– Intra-State shipping.
– That is a very difficult and important question, and it depends upon the interpretation to be put on the Constitution. In the American Constitution the trade and commerce power reads -
To regulate commerce with foreign countries, and among the several States, and with the Indian tribes.
In our Constitution it is worded in this way -
Trade and commerce with other countries and among the States.
In substance the two Constitutions are identical in this respect. Then the question arises as to the Federal control. This question was the subject of a good deal of investigation, and argument, and final decision, with the result that it appears to be held that shipping, even from one part of a State to another, becomes national if it is carried on upon the high seas, and is under Federal control. But it is difficult to define the line between that portion of Intrastate shipping, to adopt Senator Keating’s expression, and shipping under Federal control, where they part company. And it is still more difficult to say what language one can use in order to reach the Intrastate shipping to which the provisions of a Bill of this description would apply. The words used in one of the cases mentioned in Cooley’s Constitutional Limitations are these -
That is not domestic commerce which, in going between ports of the same States, passes more than a marine league from the shore.
So that, if we were introducing words into this clause, w.e should have to limit the definition in some way to vessels carrying cargo literally on the high seas.
– Would not the High Court decide that, if a case were submitted?
– It would not do to put in language which might mislead, and I am going to suggest, although I shall be glad to hear the views of honorable senators on the subject, that it would be preferable for us to leave the scope of the Bill in that respect as it is, and deal with the matter in the Navigation Bill, because it will take some considerable care’ to frame words to embrace what is intended, without infringing the constitutional rights of the States. But I only say that, subject to hearing the views of honorable senators.
– Is it not a fact that we have control of Intra-State commerce on Inter-State boats?
– Certainly ; and I think that would be covered by the Bill as it stands.
– By clause 3, I think.
– What my honorable friend means, is that if a vessel started from Melbourne for another State, and carried cargo which was distributed at various ports in that other State, that would all come within the original scope of the voyage.
– No; he means distributing cargo within Victoria.
– I think the AttorneyGeneral will see, on further consideration, that it would include that ship, as it is an instrumentalityoftheInter-Statecommerce.
– That is a difficult point. We have commerce and the instrumentalities of commerce. These are all questions which would have to be determined by the Court, but, in my view, under thewords of the clause as it stands, the control would not be limited to the caigo taken from a port in one State to a poit in another State, and exclude the calling of the ship at intermediate ports, and so on, because the whole thing would be governed by the object of the voyage, which would be Inter-State.
– But this applies to only goods carried from State to State.
– That is Inter-State, and under the authorities, as far as I have been able to gather, once it becomes an Inter-State voyage then the applicability of the Federal law continues, even although in the course of that InterState voyage a local traffic is carried on. A passage from a very good book on the Commercial Clause of the Federal Constitution, by Prentice and Egan, may enlighten us a little. At page 60 the authors say -
Of course, all commerce which is carried on entirely within the limits of a State, and does not extend to or affect other States, is, with the single exception of trade with the Indian tribes, outside of Federal control.
Well, that requires modification, and on page 85 we find this passage -
Even carriers engaged in transportation fr/jm point to point in the same State, are within ‘ Federal control, so far as they are engaged in Inter-State commerce.
– That is further modilied.
– Yes. At page 86 the authors give two or three instances -
In Lord v. Steam-ship Company suit was brought I against the owner of a vessel engaged in trans- 1 portation from San Francisco to San Diego, to recover the value of freight lost, and it was contended that the provision of thfe Federal statutes limiting the liability of owners of vessels for loss or destruction of freight had no application to transportation between points in (the same State. It was held, however, that transportation upon the high seas was necessarily national in character, and within the. Federal control. The vessel was navigating with the vessels of other nations, and, while not trading with them, was engaged in commerce with them. If, in the course of her voyage, she inflicted a wrong upon another country, tne Federal Government would be responsible. Such navigation is clearly a matter of national concern, and subject to national control.
Then the authors refer to another instance, in which there was a State regulation of rates, and the same rule was applied there.
In Pacific Coast Steamship Company v. Board of Commissioners, the same rule was applied to State regulation of rates for transportation by sea between points in the same State. Such transportation, it. was said, is under the exclusive control of Congress. Only that transportation which is within the State during its entire voyage is subject to its regulation.
Of course that is subject to modification too, because, in my opinion, it is Federal if it goes beyond what is referred to in the other passage - the three-mile limit.
As the ocean is an international highway, so the navigable waters of the United States are national highways, and subject to Federal control. State regulations of domestic commerce may not, therefore, be given an operation which will embarrass the carrier in its relations to the vessels of other States, and interfere with the operation of Federal laws.
Then comes the discussion of the point to which Senator Givens referred. The question whether a vessel is an instrumentality of commerce under Federal control is determined by what happens at the moment she leaves the port of departure, and its subsequent movements do not lessen the obligation to be under the Federal law.
– Not even when carrying cargo between port and port in the same State ?
– No. At page 93 Prentice and Egan say -
The transportation wholly within “a State, which is beyond the jurisdiction of Congress, is that which, in fact, originates and ends in the State. It may often be that the carrier’s service is confined to the limits of a single State ; but if, in performing this service, it is an instrument of commerce among the States, it is subject to Federal control for all the purposes of that commerce.
– That is Inter- State commerce.
– -Quite so. At page 97 the authors deal with the question of Admiralty jurisdiction, which is another matter, and then they go on to say -
It was clear, however, that no legislative power would be adequate unless it was as extensive as the Admiralty jurisdiction given to the Courts. All jurisdiction over Admiralty cases had been taken from State Governments. The necessities of the case, therefore, required legislation by Congress, and this legislation the Courts finally supported. The Federal legislative power, the Court said, “ is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.”
What 1 suggest is that, as the great object of this immediate legislation is to deal with cargo carried over-sea, together with a provision with regard to carrying cargo from one State to another State, all such commerce will be brought under the operation of this law ; but for the present we had better not endeavour, by inserting any other words which may bear a doubtful constitutional construction, to enlarge the operation of the measure, as we can deal with the whole question of our powers in regard, to trade and commerce when we have the Navigation Bill before us. I propose, as I intimated last night, to make one amendment, which might effect an improvement in the Bill. I propose to insert the word “illegal” after the words “shall be” in clause 4. Two points were very strongly put - with which””, so far as the legal interpretation is concerned, I agree - by Senator Best anci, Senator Keating. Other honorable senators also referred to them. One is as to the imposition of a penalty, and the other is the point which was more especially emphasized by Senator Keating, as to declaring by this Bill that the law to be applied to the construction of a contract entered into by the parties to a bill of lading is the law of the Commonwealth. To carry out that idea I propose to insert after clause 4 the following new clause: -
All parties to any bill of lading or document relating to the carriage of goods from one place in Australia to . any place outside Australia shall be deemed to have intended to contract according to the law of the Commonwealth, and any stipulation or agreement to the contrary or purporting to oust or lessen the jurisdiction of the Courts of the Commonwealth or of a State in respect of a bill of lading or a document shall be illegal, null and void, and of no effect.
I think that will be absolutely effective - indeed, I have no doubt that it will be. It is like a vice. As to the penalty, the necessity foe which was more particularly emphasized by Senator Best, I propose to add the following new clause, which will be clause 6 : -
The owner, charterer, master, or agent of a ship shall not -
Insert in any bill of lading or document any clause, covenant, or agreement declared by this Act to be illegal, or
Make, sign, or execute any bill of lading, or document containing any clause, covenant, or agreement declared by this Act to be illegal.
– I think that penalty . should be increased.
– ^50 is the maximum. If half-a-dozen bills of lading are ‘affected, any penalty is sufficient.
– Oh, no.
– Well, 1 shall not stand in the way of an . increase of the maximum.
– This penalty does not affect “a claim for damages?
– Not at all. I do not like the idea of making the penalty too large in a Bill like this.
– Why not?
– I am not controversial on the subject, but I think the penalty I propose is sufficient. But if honorable senators think otherwise I shall not contest the point.
– There would be a civil remedy in addition to the penalty?
SenatorSir JOSIAH SYMON.- Oh, yes.
– But the civil remedy may be merelv nominal.
– I may indicate how the demand for a penalty arose. It was suggested that there was a possibility of tramp ships coming to our ports, which were, not represented by any permanent agent in Australia, and that such ships might give a bill of lading containing a clause which this Bill declared to be null and void, and t’hat that might prevent the recovery of damages unless action were brought in the country to which the ship belonged. *I do not think that that is likely to happen, but it was suggested that at least there ought to be some penalty to prevent the possibility of such provisions being inserted. I fall in with that suggestion, which in some respects makes the Bill stronger. Therefore, I have framed this clause. I am content to leave the amount of the penalty to honorable senators. I think that these three amendments will make this the most effective measure which I have seen. But the amendment suggested bv Senator Givens involves constitutional considerations, as it affects the relations between the Federal authorities and the States.
– Why should we not tackle difficulties ?
– I do not think we should do so in a measure of this character, especially considering that we shall have the Navigation Bill before us shortly. Our object is to pass immediate legislation, in respect of bills of lading affecting our over-sea commerce principally.
– There is one point upon which the AttorneyGeneral might satisfy honorable senators concerning the legal position affecting this Bill. There are ships which trade from’ Hong Kong and Eastern China to the coasts of Queensland. These are not Australian vessels, nor has the Commonwealth any control over them, except by laws such as we are endeavouring to pass. Say that a vessel comes from China or Japan with a cargo for different ports in Australia. At the same time she might carry a cargo from one port in Queensland to another. Say that she is a vessel over which we iiave limited jurisdiction. It is just as well that we should know how legislation of this character would affect s’uch vessels. Is it not possible, even before the Navigation Bill is passed, that on entering into the Australian trade from port to port within a State vessels of that kind would be affected by this legislation? The Attorney-General has told us that Inter-State trade would come within th-2 provisions of this Bill, but I should like also to know whether trade between different ports of a State would be affected by it. The fruit-growers in the southern portions of Queensland may send produce to the northern portion, and vice versa. Those shippers require just as much protection as do shippers who send fruit from Tasmania to Victoria. If there is no State law to protect them it is wise that our law should do so.
– I desire, at a convenient place, to move the insertion of a new clause stating when this measure shall commence.
– Such a clause can come at the end of the Bill.
– There is no doubt that the Bill will create more or less of a revolution. The shipping companies will require time to frame fresh bills of lading, and to get ready for working under the measure. It will take some weeks to circulate the Bill in all parts of AustraliaWe should fix a fair time for it to come into operation.
Clause agreed to.
Clause 3 -
This Act shall apply only in relation to ships carrying goods from any place in Australia to any place outside Australia, or from one State to another State, and in relation to goods socarried, or received to be so carried, in those ships.
– The Attorney-General has been good enough to explain his opinion with regard to the amendment which , 1 suggested last night. I believe that he is as much convinced as
I am of the necessity for such an amendment, but he thinks that the difficulties in the way are so great that we should allow it to stand over until we can deal with the whole subject comprehensively in the Navigation Bill. It is extremely important that our Commonwealth legislation on so far-reaching a subject should be uniform. Shippers, shipowners, consignees, and every one who is interested in trade and commerce should know what their position is. It is true that each State can deal with the subject within its own borders, but it can only legislate to a limited extent, and States Acts must not come into conflict with the Federal law. Even if we had the absolute power to deal with it, the result might be that we should have six different State laws, in addition to the Federal law, and that would be exceedingly undesirable. An effort might be made to secure the passing of uniform legislation in the several States ; but we know that that would be exceedingly difficult to accomplish, because honorable senators are aware that it is almost impossible to get the different Legislatures of the States to adopt the same language in their Acts of Parliament. If it can be done at all, it should be done in this measure. In Queensland, commerce is carried on every day in the week over a coast-line extending for over 1,500 miles, and, from the point of view of that State, it is very important that there should be a uniform law relating to the sea carriage of goods, and the care which shipping companies should be compelled to take of the goods they handle. In the case of South Australia, it might be necessary to send goods from the southern part of that State to the most northern part of the Commonwealth, in the Northern Territory,,, and it would be ridiculous to say that a Federal law should not apply to trade of that sort.
– I do not think that is doubted.
– I do not think it is either ; but if it is not doubted, why should we not deal with the matter in this Bill, and make it sufficiently comprehensive to apply all round? Queensland is as much interested in this Bill as any other State can possibly be, because a particular export from that State is absolutely dependent upon the care taken by shipping companies. I allude to the export of frozen meat. There is a very large export of frozen meat from Queensland, not only to the old country, but to the other States of the Commonwealth. Sometimes it is Carried from one port in the State of Queensland to another, in order to complete shipments’ which may be destined for some place over sea. _
– This clause would govern cases of that sort.
– I do not think it would. It has been admitted by the AttorneyGeneral, and it has been laid down by the United States Courts, that directly commerce goes outside one marine league from the shore, it comes under Federal control. Commerce may be carried on between one port and another in the same State., but if it extends to more than one league from the shore, it comes under Federal control. There are very few cases in which, in conducting the trade between port and port in the same State, vessels have not necessarily to go more than a marine league from the shore. It is, therefore,’ clear that the bulk of the InterState trade must come within Federal control. It has been held by the American Courts, in interpreting a Constitution almost exactly similar to ours, that when an instrumentality of Inter-State trade engages in commerce within the limits of a State, it comes under Federal control. From what I have been able to read of American law on the subject, from books kindly lent me by the Attorney-General, I have concluded that we have even greater powers than I have suggested. In Prentice and Egan’s work on the Commerce Clauses of the American Constitution, I find the following passage at page 86, in addition to what was quoted by the Attorney-General -
As the ocean is an international highway, so the navigable waters of the United States are international highways.
From that it will be seen that commerce on the rivers and lakes in the United States is subject to Federal control.
State regulations of domestic commerce may not, therefore, be given an operation which will embarrass the carrier in its relations to the vesselsof other States, and interfere with the operation of Federal laws.
– That is with respect to rivers running right through the United States.
– There are no rivers running right through the United States.
– Is not the honorable senator aware that it is possible to travel by water from “New Orleans to the St. Lawrence River in Canada?
– Honorable members will find that all these waters are under Federal control.
– For some purposes.
– For the purposes of trade and commerce.
– Not for all purposes of trade and commerce.
– A canal confined to one State would not be under Federal control.
– According to the American reading of the law, even the railways are under Federal control.
– Because they run through so many States.
– That is not altogether the reason. Their right to deal with the traffic in their own State is entirely limited by the rights of other States. There are some exceedingly interesting passages on this subject to be found in the work from which I have quoted.
– The Federal control is limited by the Constitution.
– That is so; but it is limited by a provision which is exactly similar to the provision in our Constitution, under which this measure is introduced. It has been held that if an instrumentality of Inter-State trade, such as a train br a steam-ship, is employed in carrying goods from one point to another in the same State, it is under Federal control.
– Not if the goods are local goods.
– It is absolutely.
– Our power under the Constitution also extends to the railways.
– I had intended to convince honorable senators by a quotation from this work which” I cannot find at the present moment. 1 shall, however, look it up during the discussion, and I shall be able to inform them that, although they are very dogmatic in their opinions, so far as the interpretation of authorities is concerned, they are making a mistake. It is recognised that the Attorney-General is an authority, and the honorable and learned senator admits that my reading of the law in this respect is correct - that directly an instrumentality of Inter-State trade, whether a steamer, a train, or anything else, carries goods from one point to another in the same State, it comes under Federal control, according to the reading of American Courts of a provision in the American Constitution which is exactly similar to the provision of our Constitution, under which we are now working. The Attorney-General has pointed out that there is only one word of difference between them, and that is not material. It is material only by reason of the circumstance that we are not a sovereign power in the same way as is the United States. We are dealing with other countries under the same sovereign authority as ourselves, whereas the United States is not in that position. Clause 98 of our Constitution provides -
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.
Under the American Constitution it is provided that Congress shall, have power “ to regulate commerce with foreign nations.” In section* 51 of our Constitution we are given power with respect to -
Trade and commerce with other countries and among the States.
The only difference is that we deal with other countries, and the States of- the Commonwealth, whilst the United States authorities deal with foreign nations. The difference is only material to the extent that is rendered necessary by the .circumstance that there are other countries living under the same supreme central authority as ourselves, with whom we deal, whilst the United States does not deal with other countries under the same sovereign authority. The facts being as stated, it is extremely desirable in the interests of all the States, and I am sure they would welcome it, that our law in this respect ‘should be uniform. I therefore hope that the AttorneyGeneral will accept an amendment to that end.
– I think the Attorney-General has shown wisdom in refraining from including in this Bill anything which he doubts our Constitutional power to enact. Apart from that, I believe that, while what Senator Givens suggests would avoid injustice to some shippers, it would be the means of greater injustice to others. We must recognise that there is a large traffic in small boats between port and port in each of the States, and that that traffic is carried on under conditions which make high freights almost impossible for the shippers. Those small boats carry deck cargo in what may be termed a “ hand to mouth ‘ ‘ method ; and if they are brought within the scope of this Bill a great injustice will be done, which, so far as the small shippers are concerned, will more than out-weigh the advantages of the measure. Large numbers of small parcels of fruit and. other goods are brought from Warrnambool, and other places, and delivered at Melbourne and Geelong in from twelve to sixteen hours, and, under the circumstances, it would be undesirable to compel bills of lading, and all the machinery of the Bill to be brought into operation.
– The Bill does not enforce bills of lading.
– Senator Givens wishes to include within the operation of the Bill, not only intercolonial trade, but trade between port and port in a State.
– All that is desired is that parties shall not be able to contract themselves out of the common law.
– What appears to be desired is to supersede the common law by this Bill.
– That is what the AttorneyGeneral proposes.
– Then, iti is doubtful whether the small shippers will reap any advantage, seeing that the shipping companies will have to make extra charges, because of the stringency of the provision of the Bill.
– That is an argument against the whole Bill.
– No, because the oversea and Inter-State shipping trade is carried on in a large way.
– Why should not the small shipper have the same protection as the big shipper?
-I would give the small shipper all the protection which we consider equitable, but if he is to be put to expense an injustice will be done. However, I think that the Bill is a necessary one, and! that the Attorney-General has shown wisdom in avoiding anything which might be deemed unconstitutional.
Senator Sir JOSIAH SYMON.We shall do well to confine our discussion within the limit presented by the clause as it at present stands, because we shall then be on solid ground. Seeing that the essence of the Bill is the control of the export trade, mainly from Australia, and from State to State, it would be well to avoid introducing any, proposals, the intention of which it would be difficult to express in language. Senator McGregor referred to China boats carrying cargo from one port to another in Queensland, but in my opinion this Bill would not apply in such a case. The starting point of the measure is, so to speak, the loading of produce in Australia, first, for ports beyond our border, and, secondly, for ports in another State. We shall do well to take one step at a time, and not, by endeavouring to secure too much, perhaps create confusion m the interpretation of the Bill. I, therefore, ask the honorable senators to pass clause 3 as it stands.
– I cannot understand why the Attorney-General has any objection to the Bill being made more comprehensive. The measure was not at first introduced altogether in view of the export trade. The Attorney-General, in making his second-reading speech, intimated that it was introduced more on behalf of the shippers of small consignments than on behalf of those sending large consignments, who could probably get better terms than the former.
– That was in reference to the combination of shippers > not as to local shipping, but as to the export trade.
– The Bill will apply to men who ship large quantities of fruit from Victoria to New South Wales, where the passage is only a couple of days, and also to shippers from Tasmania to Sydney or Brisbane, where the passage may be five days; but it will not apply to shippers of perishable products at Brisbane for the northern parts of the continent - products which cannot reach their destination in less than three weeks. .The greater part of the fruit supplied to Northern Queensland has in a great many cases first to be sent from Tasmania to Brisbane, and then shipped in boats, some of which are, and some of whichare not, Inter-State, for all the ports in the north, such as Rockhampton, Port Mackay r Townsville, Cooktown, Thursday Island,, and Normanton, a distance of over 2,000- miles, and in a much warmer climate tha ) is experienced in the southern parts of thecontinent. Shippers to those northern ports should have protection just as much as shippers from New South Wales to Queensland, who do not run nearly so much risk from carelessness from stowage and from pilfering. The vessels to the far north have to call at five or six ports, and that gives greater facilities for neglect and for ullage, and there is,, as I have said, the greater dis: advantage of a much warmer climate, calling for greater care in every direction. Then, again, large quantities of tropical fruit are brought from the northern parts of Queensland to the southern States of the continent, and most of this is carried on Inter-State boats. Those shipments are first of all carried along the northern rivers to, say, Townsville, where it has to be transhipped; and it is here that the Bill would give a considerable amount of protection, were it extended to the carriage of perishable products within a State. The Bill provides that such products shall not only be well stowed, but must be carefully handled ; and it is in the handling that a great deal of fruit goes adrift. If the AttorneyGeneral had seen some of the shipments of fruit from the north some time ago, he would not have wondered at much of it going bad, or that those engaged in the industry get practically no return, because of the carelessness in the handling, especially in transhipments.
– I quite agree with what the honorable senator says.
– If it is competent for this Parliament to insert an exactly similar clause in the Navigation Bill, surely we ought to give protection to men who ship perishable products from port to port in a State, especially when there is a long coast-line like that of Queensland. I hope the AttorneyGeneral will agree to some amendment which will extend the Bill to people engaged in shipping coastwise in the various States. I know that Queensland would reap as much benefit from such an amendment as it would from a law of the kind applying to exports beyond the States.
– I join in urging the Attorney-General to extend the operation of the Bill, if possible, in the way suggested. The .north-west portion of Western Australia is entirely dependent on the eastern States for the supply of fruit, which is first taken to Fremantle and then transhipped into small boats, which do purely a State trade. Under the Bill as it stands, the shipper at Fremantle would have his remedy, but the shipper at Geraldton would have no protection. The latter would be compelled, as he is now, to contract himself out of the law.
– It would be necessary to open all the fruit at Fremantle in order to see that it was sound.
– Not necessarily, because the boats are all run by the Adelaide Shipping Company, though sometimes that company receives fruit from other InterState lines. I am afraid that unless the Bill is extended there will be one bill of lading for Fremantle and another for Geraldton.
– Are there many cases of damage in the coastal trade?
– Yes, a great number ; and not only damage from hot weather, but loss owing to ullage by members of the crews. The ship-owners have freed themselves from responsibility for the acts of their servants.
– We ought not to make them liable for damage caused by hot weather.
-No; but we should make therm liable for damage caused by careless stowage.
– I feel great diffidence in discussing the legal aspect of the question. On the railway between Perth and Kalgoorlie, the State Government discriminates between the produce of the eastern States and local produce. It will riot be denied for a moment that the InterState Commission, if appointed, could deal with that case.
– It is given specific power.
– We are also given specific power to deal with navigation.
– That is doubtful.
– According to 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 take that provision to mean that we can legislate in regard to navigation and shipping, as well as trade and commerce.
– And this is commerce.
– We have full power to prevent a State from levying a differential rate on the goods of another State, when carried on its railways.
– That is the only power which we have inside a State.
– Why have we not power to deal with the produce of another State, carried on purely State boats ? I think that the use of the word “ only “ in this clause is unnecessary, as it seems to imply that we are only exercising a portion of our power in this respect. I trust that the Attorney-General, even if we should have to recommit the Bill, will take into consideration the condition of those States which do a large trade in perishable products, and on purely. State boats.
– This small Bill is introduced hurriedly to meet a specific defect, and at the end of the session.
– It will not take us very long to amend it.
– It will not take very long to make an amendment, if there is no difference of opinion, but even here we have had considerable difference of opinion. Senator Gray has pointed out that the insertion of this amendment, which I confess would be an improvement if it could be wisely made at this juncture, would do more harm than good to the persons we are anxious to protect.
– He is thinking only of New South Wales, with a short coast line.
– I think that Senator Gray proposes to legislate for the Commonwealth. But even in New South Wales there is a strong opinion that it would be unwise to make the amendment. That State is represented by a considerable number of members in another place, and supposing that they hold the same views as Senator Gray on this point, it is quite obvious that the Bill could not be passed this session, and that, therefore, we should lose the very large amount of good which it would do in a vain attempt to extend its operations. Some honorable senators have spoken as if this Bill would inflict hardships. If Senator Givens’ suggestion were not adopted, existing hardships would be continued for a little while, It would not create any new hardships, but it would make things a little better over a very large area.
– It would benefit 75 per cent, or more of the trade.
– In view of that fact the Attorney-General has taken a proper stand in urging that the Bill should contain as little contentious matter as possible. It is extremely important that it should become law this year, and as ‘early as possible, because we are very rapidly approaching the season when large quantities of fruit will be exported. The immediate cause of” the Bill is a protest from fruit exporters. I attended the deputation which waited upon the Prime Minister, and I congratulate the Government upon the promptitude with which they have dealt with this matter. It is only a few days since it was prominently brought under their notice by the deputation, and, considering all the circumstances, this Bill is extremely comprehensive, although not so comprehensive as Senator Givens and I should like. There is a doubt as to the wisdom of putting in the amendment. I do not know how far it extends, but if it extends to any considerable number it would cause delay, and thereby frustrate the passage of the Bill this year. I ask honorable senators not to persist in this endeavour to make the Bill more comprehensive, particularly as we must have within a few months a Bill to deal with the whole question of navigation, when, of course, however much time it might take, we must endeavour to cover the- whole area.
– When I rose with Senator Trenwith, it was with the object of emphasizing the point which he has so well and ably put. The Bill complies strictly with the request of those who felt that they were suffering a serious disadvantage; indeed, it goes a little beyond what they asked, and in a very proper direction, too. The deputation which waited upon the Prime Minister had in view, mainly, if not completely, over-sea traffic.
– No; it was the outcome of a fruit-growers’ conference.
– I believe that the AttorneyGeneral will confirm my statement.
– Hear, hear.
– The Bil! applies to not only over-sea traffic, but to Inter-State trade, and will be most valuable. I admit that Senators Givens and Turley have put their case very well. But if the producers had suffered any serious injury they certainly would have mentioned the fact to the Prime Minister at the time.
– Queensland ‘was represented on the deputation.
– Western Australia was not represented.
– The Committee has to be satisfied that the producers desire the protection to extend to Intra-State shipping.
– I do not think that the shipping documents used in Intra-State ships contain these exemptions.
– They do.
– Not all of them. In South Australia they do hot.
– Take the shipping within the limits of Victoria. If our coastal trade were regulated as desired by honorable senators, the probability is that it might result in a serious increase of the freights. Take, for instance, the trade between Melbourne and Geelong, where the ships have to compete with the railways. This amendment if made might result in serious disad vantage to the producers of that district. I wish to get some information from the producers as to the effect of this legislation upon Intra-State trade. Having got that information, the probabilities are that special legislation will be required. I admit that Senator Givens and Senator Turley have made out a splendid case_, so far as Queensland is concerned, but our great difficulty is that by reason of the enormous difference in area between the several States, it is difficult to make the same rule apply both to Queensland and Victoria. Perhaps what would be an advantage, so far as Queensland is concerned, would be a great disadvantage in the case of Victoria. As the Attorney-General has expressed himself in favour of dealing with the matter in the Navigation Bill, perhaps they will accept his promise. In the meantime, we shall be able to get further information.
Senator GIVENS (Queensland).- If the reading. of the United States law, given in Prentice and Egan, on The. Commerce Clause of the Federal Constitution, be correct, there is not much doubt with regard to our power to deal with the subject. This work says, at page 103 -
It was at one time the rule that navigation upon public waters of the United States was subject to State regulation if the transportation was between ports in the same State, and upon this theory State regulation of signal lights and the rule of the road was sustained as applied to vessels upon domestic voyages. This rule is now abandoned.
So that, according to this authority, what was at one time a rule applied by the States is now a Federal matter. Therefore, as far as concerns the United States Constitution, the Federal authority has complete control.
– That is only in regard to signal lights and the rule of the road.
– I think it goes further than that. In another part of the same book the authors ‘point out that all the power which the Federal authority has in regard to the Admiralty rule is absolutely supplemented and duplicated in the power to deal with trade and commerce. The one power is as full as the other. The passage which I desire to quote is to be found at page 93 -
It may often be that the carriers’ service is confined to the limits of a single State ; but if, in performing this service, it is an instrument of commerce among the States, it is subject to Federal control for all the purposes of that commerce.
– For Federal purposes; that is right.
– I do not wish to labour the point. I am satisfied that much has been done by the discussion to call attention to the matter. My object was to secure an absolutely uniform method for all the States. It is extremely unlikely that the States themselves can be induced to legislate in exactly the same manner, and, therefore, I thought it was highly desirable to have a uniform law as regards commerce beyond the seas. Senator Best and Senator Gray think that my proposal would have the effect of raising freights, and would, therefore, do more injury to shippers than would be the case if they were left outside the scope of the Bill. If that is a good argument, it is good against the whole Bill. As a matter of fact, the President of the Victorian Chamber of Manufactures has actually predicted that result.
– We need more information.
– That is always the cry when we desire to secure reform. It must be remembered that the voyage, say, from Brisbane to Normanton, in Queensland, is longer than the voyage from Melbourne to Sydney, which traverses three States. Surely those who ship produce between ports in the State of Queensland should have the same protection as those who ship produce from Melbourne to Brisbane. I have no desire to delay the passing of this Bill, and suppose that for the present I must rest satisfied with the assurance of the Attorney-General that the whole matter will receive consideration in connexion with the Navigation Bill.
– I am glad to find that Senator Givens is one of the most apt of pupils in “connexion with questions of constitutional law, and I should like to add that my honorable friend mav accept my assurance that the subject which ha has brought forward will receive every consideration. I have the fullest sympathy with the object he has in view. But the difficulty is that while I am: perfectly satisfied that this Bill, as it stands, will not produce any constitutional conflict - I cannot conceive it possible that any constitutional question could arise as to the applicability of clause 3 - a grave difficulty might arise if we endeavoured to extend it. It might immediately raise a conflict between State and Federal jurisdiction. If that were so, a small shipper on the coast might have to accept a bill of lading which contained provisions involving a constitutional fight between himself and the shipping company. I should be very sorry to induce honorable senators to believe that there was any likelihood of a situation of that kind being avoided if the amendment suggested were carried. It is from that point of view, and through my desire to keep this Bill, which is urgent, as free as possible from constitutional difficulties, that I think that Senator Givens has done well in agreeing to accept the clause as it stands.
Senator TURLEY (Queensland).- The remarks of Senator Trenwith were not altogether fair, if they meant that we were endeavouring to get this Bill so far extended that we should probably endanger its passage. We have no wish to do that. But we know the difficulties that exist on the Queensland coast-line, and the loss that shippers often sustain in the shipping of perishable produce. We w’ish the saime protection to be given to them as is to be given to shippers who may ship perishable products on Inter-State boats. Senator Best speaks of boats trading between Melbourne and Geelong. This Bill refers principally to perishable products. There is no shipper of perishable products who does not want to get the best price possible for his goods. Every shipper knows that the wav to get the highest price is to land his goods in the best condition. An increase of price in that respect would mean fa.r more to the shipper than a slight increase of freights, even if they were raised in conseciuence of the passing of this Bill.
– Undoubtedly ; but I am obliged to take notice of such considerations.
– I recognise the difficulties that exist, and I feel sure that after the debate which has taken place other honorable senators appreciate the position of the Queensland shippers, on account of the length of our coast-line, the number of poits at which boats have to call, the danger of ullage, as well as the damage that is; likely to be done to perishable produce by a hot climate on boats which provide no cool storage. Our only desire is to give to the Queensland producers the same protection as is to be given to others.
Clause agreed to.
Clause 4 -
Where any bill of lading or document contains any clause, covenant, or agreement whereby (a)The owner, charterer, master, or agent of any ship, or the ship itself, is relieved from liability for loss or damage to goods arising from the harmful or improper condition of the ship’s hold, or any other part of the ship in which goods are carried, or arising from negligence, fault, or failure in the proper loading, stowage, custody, care, or delivery of goods received by them or any of them to be carried in or by the ship; or
The obligations of the owner or charterer of any ship to exercise due diligence, and to make and keep the ship’s hold and other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation, are in any wise lessened, weakened, or avoided; or
the obligations of the master, officers, agents, or servants of any ship to carefully handle and stow goods, and to care for, preserve, and properly deliver them, are in any wise lessened, weakened, or avoided, that clause, covenant, or agreement shall be null and void and of no effect.
– This is the most important clause of the Bill. It contains details that are certainly very arbitrary and severe. It is some disadvantage that the Bill has been to a certain extent rushed.
– That fact is not to the discredit, but rather to the credit, of the Government. At the same time, it must not be forgotten that the ship-owners of Australia practically know nothing about the Bill. Between the present time and1 its consideration in another Chamber, they may have opportunities to study some of its details. I am sure that the Senate desires to do only what is fair and just. I am sure that it is not desired to place the ship-owners of Australia in a position which would be insufferable, but I make these remarks simply in order that this clause may not pass without comment, “and the presumption follow that no possible objection could be urged against it.
– I wish to draw the attention of the Committee to paragraph b, which, doubtless, inferential ly refers to refrigerating and cool chambers, though it does not mention them. It provides that where any bill of lading, or document contains any clause, covenant, or agreement, whereby -
The obligations of the owner or charterer of any ship to exercise due diligence and to make and keep the ship’s hold and other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation are in any wise lessened, weakened, or avoided.
I think this paragraph is intended to refer to refrigerating and cool chambers, because it is not usual to apply the word “ preservation “ to the hold of a ship. As we are passing a law to deal with a new state of affairs, and as I think there is no case which has dealt with neglect on the part of a ship-owner with regard to refrigerating and cool chambers, it would be better in this clause to go a litttle more into detail. Would it not strengthen the clause, if, for instance, after! the word “ hold “ we inserted the words “ and refrigerating and cool chambers therein.”
– Supposing the ‘ ship has not any ?
– Then these words would have no effect. I have seen bills of lading which apply to goods carried in refrigerating and cool chambers, and supposing the ship-owners say to “the shipper, “ We will ship your goods, and put them in the hold, but if you desire us to put them m trie refrigerating chamber, as to which the Act is absolutely silent, we shall do that for you, and undertake to keep them in an even temperature.
– Would not the refrigerating chamber be part of the ship?
– It is a very modern part of the ship, and is set apart for experimental purposes. A shipper told me only to-day that the fruit export trade is even now only in the experimental stage, and there is a difference of opinion as to the temperature in which fruit should be kept. I am doubtful whether this clause will cover refrigerating and cool chambers. I am afraid that it would be possible for ship-owners to make contracts in such a way as to lessen, weaken, or avoid their liability in respect of the carriage of goods in refrigerating and cool chambers. In the event of any difficulty, the Court would have to consider what are the liabilities of ship-owners with regard to these experimental and scientific chambers. I am not aware that any question in connexion with them has yet been raised, and the Court would have to take a stand’, for itself, and lay down its own policy in the interpretation of the Act.
– If the ship-owners are liable for negligence, they will be liable for negligence in regard to their refrigerating chambers.
– I quite admit that, but we have no standard or gauge as to what is negligence in this respect.
– Let them be negligent, and the gauge will soon be found.
– But the point is, what is being negligent? As, in my opinion, the clause is not complete as itstands, I move -
That after the word “ hold,” line 19, the words “and refrigerating and cool chambers therein” be inserted.
– I hope that Senator Dobson will not press his amendment. I have no very great objection to it, but it will only add words to the clause, which are, in my opinion, unnecessary.
– Should not the amendment be accepted if it will remove a doubt, and if there is no real objection to it?
– I think that there is no doubt. Nothing could be wider than the words used in paragraph b of this clause. What is it that the shipowner is not . allowed to exempt himself from? His obligation to exercise due diligence and to make and keep “the ship’s hold, and other parts of the ship in which goods are carried,” fit and safe for the reception, carriage, and preservation of goods.
– That might not include all the machinery required for refrigerating chambers.
– It includes every part of a ship in which goods are carried, and the obligation of the shipowner is to keep all those parts fit and safe for their reception, carriage, and preservation. I am aware that Senator Dobson desires to assist in the passing of this Bill’, and if he feels that he must press his amendment, I shall offer no opposition to it if the honorable senator will eliminate the word “ therein,” which is entirely unnecessary.
– I have no objection to do so.
Amendment amended accordingly.
– I feel that there is something in Senator Dobson’s contention, but in my opinion the honorable and learned senator has not emphasized the right part of this paragraph. I am satisfied that the words “ ship’s hold, and other parts of a ship in which goods are carried,” will include every part of a ship, whether a refrigerating chamber or not, in which goods are carried, but I feel that the whole of the difficulty is not yet met. Senator Dawson was right in pointing out that in this Bill we have set ourselves deliberately to cover the case of fruit and other produce which is to be stored in cool chambers. We all know that it is essential to the proper carriage of this class of produce, not merely that great care and diligence should be exercised, but that a considerable amount of expert skill should be applied by some one on board the ship in order to secure an even temperature in the refrigerating chamber, and such a temperature as shall be scientifically ascertained to be the best for the preservation of the goods on the voyage.
– That might be a matter of agreement between the company and the shippers.
– It would be all right if we could take that short cut, but the question is a more difficult one. We cannot in this Bill say that a ship-owner shall take care to preserve the temperature in his refrigerating chamber at 32 degrees. In my opinion, it is not sufficient - to say that all parts of a ship in which goods are carried shall be kept “ fit and safe for their reception, carriage, and preservation.” These are the words which, to my mind, govern the clause, and if any honorable senator will analyze what is meant by them he will see that they are not sufficient. I am not prepared at the present moment to suggest. the words which are necessary, but I feel that if the clause is passed in its present form we shall be leaving something to be desired. The special care required in connexion with a refrigerating chamber must be expert in its character, and I think it would be perfectly easy for a ship-master to plead that he had kept his hold and refrigerating chamber “fit and safe.” There is not much force in these words, nor do the words “ reception, carriage, and preservation “ supply all the deficiency. Some stress has been laid on the word “preservation,” but it does not cover all that is required. I should be sorry if the clause is passed in its present form, because, while I believe it aims at what we all desire, I am afraid that without some necessary verbal alteration it will faiL
– Will not the words in paragraph c, “ preserve and properly deliver them,” cover all that is required ?
– I am afraid they do not meet the special circumstances of the case. I admit that there is some merit in the word “preservation.”
– The ship-owner might enter into an obligation to keep the temperature of this cool chamber at 30 degrees.
– I have already said that we are unable, in this Bill, to take that short cut. It must not be forgotten that it has been found difficult to keep the temperature in refrigerating chambers within a range of from 32 to 40 degrees.
– Under the Bill, if a shipping company agrees to keep the refrigerating chamber at a certain temperature, liability cannot be evaded.
– Even if such an arrangement is not made, and perishable products are received on board, the fruit must be preserved in a proper condition.
– As I Have indicated, I cannot suggest an amendment, and if the Attorney-General thinks the clause is good enough, I shall accept it.
– I advise Senator Dobson not to persist in seeking to amend the Bill in the manner he has suggested.
– The Attorney-General has accepted the amendment.
– - It is far better to. rely on wide terms such as are used than to begin to particularize, unless we are in a position to do so in all directions. If we particularize in only one or two directions, the question may be raised why we did not do so in other respects. WTe shall be wise to accept the clause as it stands.
– Senator Dobson’s amendment would amplify, and not restrict, the clause, because the general words are preserved.
Amendment, as amended, aereed to.
– I move -
That the word “ and,” line 19, be left out, with a view to insert in lieu thereof the word “or.”
There might be some lawyers who would read the other words ejusdeht generis with “ refrigerating and cool chambers.”
Amendment agreed to.
Amendment (by Senator Sir Josiah Symon) agreed to -
That after the word “be,” line 30, the word “ illegal “ be inserted.
Clause, as amended, agreed to.
– 1 move -
That the following new clause be inserted : - “ 5. All parties to any bill wf lading or document relating to the carriage of goods from any place in Australia to any place outside Australia shall be deemed to have intended to contract according to the law of the Commonwealth, and any stipulation or agreement to the contrary, or purporting to oust or lessen the jurisdiction of the Courts of the Commonwealth or of a State in respect of the bill of lading or document, shall be illegal, null and void, and of no effect.”
This clause is designed to avoid any difficulty such as arose in the Missouri case. As stated yesterday, there is a provision in some foreign bills of lading which omits exemptions, but states that if there is a claim it must be brought in the Courts of the foreign country.
– I take this opportunity to thank the Attorney-General, not only for this and a clause which is to succeed it, but for the trouble he has gone to in meeting what appears to be a difficulty in the Bill. With great respect I say that I think this clause is a decided improvement.
Proposed new clause agreed to.
Amendment (by Senator Sir Josiah Symon) proposed -
That the following new clause be inserted : - “6. The owner, charterer, master, or agent of a ship shall not -
insert in any bill of lading or document any clause, covenant, or agreement declared by this Act to be illegal ; or
make, sign, or execute any bill of lading or document containing any clause, covenant, or agreement declared by this Act to be illegal.
Penalty : £100.”
Senator BEST (Victoria).- May I suggest that the Attorney-General should follow the words used in a previous clause, by inserting after the word “ illegal,” the words “ null and void, and of no effect.”
– I do not think that such an amendment is necessary, seeing that the practice is declared to be illegal. It is only because I feel under such a debt of obligation to Senator Best for the suggestions he has made, that I shall not oppose the amendment if he persists.
– I do not persist.
– Then I think the clause had better remain as it is.
Proposed new clause agreed to.
Senator PULSFORD (New South Wales). - I move -
That the following new clause be inserted : - “ 7. This Act shall come into operation on the r5th day of February, 1905.”
This is the 24th of November, and as the Bill has1 to go to another Chamber, it will be at least the 15th of December before it is finally passed, leaving only two months to the date I have named. Australia is rather a big place, and it will be weeks before new bills of lading can be prepared, and orders sent from the great shipping centres to the outlying parts. Some time ought to be allowed to ship-owners to make preparations to comply with the Bill, and surely there is some common sensev. even in the Senate, in regard to matters of this kind. When we take into account the distance between place and place, it will be found that the fixing of the 15th February leaves very little margin in time. There are the Christmas and New Year holidays, and, considering all the circumstances, I do not think the period should be shorter.
– I quite appreciate the view which Senator Pulsford takes, but I hope he will not press the amendment, which would practically defeat the urgent purpose of the Bill. The fruit season is close at hand, and it would be a pity to introduce the amendment, if we hope the Bill to be of any avail.
– Senator Dobson says that the Tasmanian fruit season begins on February 20th.
– But the shippers have to make preparations, and enter into contracts, and it would be much better to let the Bill come into- operation at once.
– That is simply impossible.
– Let the Bill be brought into operation by proclamation. If there is not time for the ship-owners to make arrangements, it is of no use fixing an early date.
– Unless honorable senators urgently desire it, the Executive would rather be “relieved of the duty of proclaiming the date. I should not object to the 1st Tanuary being fixed-
Senator CLEMONS (Tasmania).- I ask Senator Pulsford to consent to alter the date to the 1st January. If he does not I shall move an amendment to that effect. .
– I am of the same opinion as Senator Clemons. As the Attorney-General says, one of the main objects of the Bill will be defeated if it be delayed a day longer than is absolutely necessary. I, too, am quite prepared to accept the ist January; but if the 15th February be fixed, the shippers will not derive that benefit which we desire to give them.
Senator PULSFORD (New South Wales). - I am sorry I cannot see my way to reduce the period I have proposed. I think honorable, senators are not dealing fairly with the ship-owners, seeing that the Bill is one of the most drastic ever passed in Australia. It is absolutely necessary that a fair and reasonable amount of time should be allowed. I think that the 15th February is the earliest date on which the Bill ought to be brought into operation. I am not sure that a later date ought not to be chosen. If honorable senators, . instead of saying that they prefer some other date, would explain to me how all this_ work could be done before the 15th February, I should ‘be pleased.
– They would have a month in which to get their bills of lading printed.
– And. besides that, the exemptions could be struck out with red ink.
– The Bill will not be passed by the other House until probably the middle of December.
– It will be passed next week.
– Whenever it is passed the ship-owners will have to decide on what to do. They will have to send instructions to their agents at the most distant ports in Australia. Surely they ought to be treated with a little regard for the exigencies of business. Honorable senators are carried away by their desire to bring the Bill into force, to such an extent, that they lose sight of geography and everything else. Time and space are as nothing to them, but still they exist. I ask honorable senators to be reasonable in this matter.
– I am opposed to the exemption of ship-owners from their legal obligations for any longer time than is absolutely necessary. The suggestion of the Attorney-General to accept the 1 st January as the date is an eminently reasonable one. In this Bill we recognise the fact that the ship-owners have been treating the public unfairly for a very long time. Senator Pulsford proposes that we should allow the ship-owners an extended time iri which to continue that unfair treatment of their customers. Practically, the. ship-owners have been cheating the shippers by being allowed to contract themselves out of their common law obligations, and now Senator Pulsford proposes that that privilege should be continued to them. It is a monstrous thing that when a Bill is introduced to remove a gross injustice on the part of ship-owners, a proposal should be made to give them a further exemption from the common law which every one else has to obey. In fact, I am surprised that Senator Pulsford has not suggested that some compensation should be given to the ship-owners for depriving them of the right to continue to cheat the public.
– I should like Senator Pulsford to agree to the Bill coming into force on the 1 5th January. I agree with his view, and shall vote with him if he calls for a division. It’ must be remembered that this is the most drastic measure which has been passed’ by this Parliament. It will become absolutely necessary for the ship-owners to thoughtfully consider the best manner in which they can carry out practically its provisions. We are legislating not for a year, but for many years, and we shall act very unwisely if we rush this Bill through the Parliament and ask the ship-owners to conform to its provisions before they have had time to turn round and think about the bills of lading which they will require to use. I am as much in sympathy with the objects of the Bill as is any honorable senator. The firms with which I have been connected have felt the ill effects of the present system, and the want of such legislation. But I think it would be wrong to legislate in such a manner as to cause serious inconvenience to shipping companies. I would therefore ask the Committee to compromise as to the date. I understand that if its coming into operation were delayed until the 15th January, it would give ample notice to the shippers of fruit.
– There would be much force in the arguments of Senators Pulsford and Gray if this discussion were being conducted in secret, and if the communications between the persons interested in the export of produce and the Prime Minister had taken place in secret. This subject has agitated the minds of those who are interested in shipping produce for some considerable time, and the shipping companies,, if they are alive to their own interests, must be aware that for a considerable time there has been an agitation afoot for legislation of this character. They must know that the Prime Minister was waited upon, and promised to bring in a measure, that it is being discussed in the Senate, that it will pass to the other Chamber, and probably receive its assent and become law. Many bodies throughout the Commonwealth have dealt with the subject. The argument of Senator Pulsford would be correct if it could be assumed that the shipping companies would know nothing of the existence of this measure until it reached the statute-book. But they know what has been going on, and ought to be prepared to conform to the new conditions. It is argued that it will be necessary to print new bills of lading. Surely Senator Gray must know that it will not be necessary to do so, even if the companies are taken by surprise, or receive only twenty-four hours’ notice that the. law of the Commonwealth had been altered? He has, no doubt, seen, as I have seen, on the back of ordinary passenger tickets, certain clauses with regard to- quarantine struck out or altered before the companies had had time to issue new tickets. It would only be necessary for the companies to strike out of the bill of lading the clause by which hitherto they have exempted themselves from the ordinary common law responsibility attaching to carriers.
– They could get new bills of lading printed easily in a week.
– Yes ; and their present ones could be easily altered for the time being. Senator Pulsford has mentioned the 15th February as a very convenient date on which to bring the Bill into operation. He said he was assured by Senator Dobson that the fruit exporting season :’n Tasmania would not start until the 20th February. But surely Senators Pulsford and Gray do not for a moment think that the fruit exporters come to the vessels at Hobart, and commence to negotiate with the shipping companies there and then. They have to go weeks and months beforehand to the companies to secure space. They enter into a contract to secure space by a certain vessel leaving Hobart on a certain date, and arriving in London at a certain time. A contract, if entered into before the Act came into operation, might be so construed as to debar the shipper from getting the benefit of these provisions. It is not for us to wait until the very moment when the fruit is being exported, and then to say that the Act shall come into operation. Any shipment after the 20th February would be subject to a contract entered into early in January, if not in December. It is necessary and desirable, in the interests of those exporting produce, that we should have this legislation as soon as possible. There is not a shipping company that is interested in shipping produce, which will not know tomorrow, or, at any rate, before the end of the week- in the remotest part of the Commonwealth - that the Senate has decided that this measure shall come into operation on the 1 st. January next, and that it will be necessary for the House of Representatives to give its. assent to the Bill, and on that date they will be quite prepared to conform to the new conditions. As Senator Givens has pointed out, the argument of Senator Pulsford proves too much, because, if the Bill is good at all, the shipowners must have been enjoying an advantage to which, in the opinion of the community generally, they were not entitled. Yet the honorable senator would perpetuate their enjoyment of that advantage to the great detriment of the producing interests of the Commonwealth. I hope that, in the interests of those who will be shipping produce during the coming season, and who will have to take the earliest possible opportunity to secure space, the Bill will become law as early as possible. I hope, too, that Senator Pulsford will see that the sense of the Committee is against him, and that the ist ‘of January is a date on which the Bill can come into operation with justice to both the shippers and the shipowners.
Senator PULSFORD (New South Wales). - Senator Givens allows himself very great freedom of expression. He considers that he is entitled here to use expressions of libel, which I think he would not venture to use outside the walls of Parliament. He described the shipowners of Australia as practically thieves, as men who had been robbing the people.
– I said that the shipowners were practically cheating the public by contracting themselves out of their legal obligations.
– Just so. There is no doubt that this Bill is brought in primarily to deal with the export of fruit oversea. Everybody who knows anything about the companies which have been carrying fruit, especially during the last two or three years, knows very well that not one of them has made a penny. Under these circumstances, when these foreign-going companies have not made any money, in spite of all their care, their clauses and covenants, honorable senators might be a little more guarded in their expressions with regard to them. If I felt that it was reasonably possible for the necessary arrangements to be made at an earlier date than the 15th February, I should not “hesitate for a moment to accept a much earlier date. Senator Keating has told us how many hours it takes to print bills of lading. We all know that when an order is given, a printer can turn out a large number in the course of a day, and we did not need to be told that he could. These papers have to be sent from Melbourne and Sydney to the remote parts of Australia, and they may take three or four weeks. Instructions have also to be sent. The , Christmas and New Year’s holidays will intervene while the new arrangements are being made. As a commercial man, I say that the 15th February is the earliest date at which this Bill can reasonably be brought into operation.
Senator MCGREGOR (South Australia). - -I hope that the Attorney-General will not budge one inch from: the 1st January. I should like to see the Bill come into operation as soon as it is assented to by the Governor-General. It is already too late for some of the producers. Senator Dobson seems to think that the, Tasmanian apple-growers are the only producers who have to be considered. But immediately we shall have the growers £>f apricots, peaches, and other fruit exporting their products from one State to another. What does Senator Pulsford wish to protect the ship-owners against? This Bill requires them to do nothing but what they should always have done. It merely says that they shall exercise ordinary care in regard to the carriage of goods. It is ridiculous that any honorable senator should, in the name of commerce, seek to extend the time after which people shall commence to do what they ought always to have done. The Bill is designed to protect shippers against the carelessness and negligence of ship-owners and shipping agents, who take charge of their goods. The bills of lading can be altered in two minutes. The companies are only required to take the usual care which commercial men ought always to take of the goods intrusted to them by other commercial men.
– I have no intention -to consent to extend the time beyond the 1st of January.
Senator DOBSON (Tasmania).- I have’ not been convinced by Senator McGregor, who, I think, misunderstands the whole scope of this measure. I quite admit that fruit is taken from other States than Tasmania. Butter and meat are also taken: But, as a matter of fact, the Bill will hit’ the Peninsular and Oriental and Orient Companies more severely than any others. Surely the agents for those companies ought to have time to communicate with their head offices. They cannot send this Bill to England before Wednesday next. They require to ask for instructions.
– What for?
– There is such a thing as justice, and the Attorney-General knows far better than I do that there is no question about which the law is so emphatic as the question of notice. We have no business to pass a Bill altering the whole of the conditions which previously existed, without giving the parties ample notice. I desire that the companies shall have till the 14th January, instead of to the 1 st January. That is reasonable enough. I do not like the idea of extending the date until 15th February, as, if the agents write to England on Wednesday next, they will be able to receive instructions by cable before the 14th January.
– Why did not they send the Bill to England la’st Wednesday ?
– Because it had not been passed by one House of the Legislature at that time.
Amendment (by Senator Clemons) agreed to -
That the words “ fifteenth day of February “ be left put.
Amendment (by Senator Clemons) proposed -
That the words “ the first day of January “ be inserted.
Amendment of the amendment (by Sena-‘ tor Dobson) proposed -
That the word “ first “ be left out, with a view to insert in lieu thereof the word “fourteenth.” ,
– It is due in courtesy, to my honorable and learned friend, Senator Dobson, that I should say that I do not think he has not advanced any reason why we should extend the time until the 14th January. I do not, however, see any necessity for the agents to send the Bill to England, because the principal companies are really domiciled here.
– Nonsense; the honorable and learned senator will next argue that black is white.
– My honorable and learned friend knows that all the companies have agents in all the Sta tes; and that their affairs are controlled by competent managers.
– But I know that this is a matter that will have to be referred to the head offices.
– While I am impressed with a desire that this Bill shall be brought into operation fairly to all concerned, I do not see that fairness demands that we should extend the time beyond the 1st January.
Senator GRAY (New South Wales). - I rise to. enter -my protest against the manner in which Senator McGregor has spoken of the shipping companies, to which we in the Commonwealth of Australia owe a debt of thanks. Those companies have had the pluck to spend millions of money in order to bridge over the distance between Australia and the -old country. It has been no light business for them to adapt themselves to modern needs, and to expend a large amount of money on what was to a considerable extent an experiment. We should, at all events, recognise that if the bills of lading of the companies have not Hitherto been all we desire, the fault has not been theirs, <but that of the Legislatures of the States. The shipping companies are not philanthropists, 5ut business concerns, carried on in a business manner, and it is not fair for us to impose this new condition without giving them sufficient time in which to adapt their arrangements to the new requirements. Senator McGregor spoke ofthe companies as though they were a set of pirates, who have taken advantage of the people of Australia. As a matter of fact, one of the large companies has not paid a dividend for eight years, and the last dividend it paid was only a small one. If we have to place this new obligation upon them we should do so with a knowledge that in the past they have served us well, and should not treat them as individuals to whom no reasonable time should be given to adjust themselves to new circumstances and conditions. I protest against it. The AttorneyGeneral entirely misunderstands the position of the agents of the large snipping companies. It is absolutely certain that they will have to communicate with their boards of directors for instructions to enable them to do what is necessary in order faithfully to carry out the obligations of this measure. We ought to consider that we are legislating for years to come, and that a few days extra to give the companies time to communicate with their principals would be fair and equitable treatment.
Amendment of the amendment negatived.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
Bill reported with amendments.
Senate adjourned at 10.18 p.m. -
Cite as: Australia, Senate, Debates, 24 November 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19041124_senate_2_23/>.