2nd Parliament · 3rd Session
The President took the chair at 11 a.m., and read prayers.
– I rise again to direct the attention of the Minister representing the Minister of External Affairs to a question which I asked on the 26th September, and which reads as follows: -
I wish to direct attention to the fact that the s.s. Pocahontas, a vessel manned by Chinese and Malays, has been engaged in the coasting trade in Australian waters at rates of wages lower than the rates ruling in theCommonwealth; and to ask the Minister representing the Minister for External Affairs -
If the Minister has approved of the terms of the contract under which such Chinese and Malays are employed, or is it part of the Government policy to allow the employment of cheap coloured labour on the Australian coast to the detriment of Australian citizens? .
Senator Playford made the following reply
This matter is now receiving the attention of the Attorney-General.
I desire to ask whether the honorable senator does not consider that sufficient time has elapsed since the 26th September for the matter to have received the consideration which it needed?
– I informed the honorable senator yesterday, in reply to a similar question, that we were then waiting for further information on the subject. I have ascertained this morning that further information has been received, and that it will be given to me. I shall be able to answer the question tomorrow.
asked the Minister representing the Minister of Trade and Customs, upon notice -
Will the Government, before the prorogation, lay on the table of the Senate all correspondence with New Zealand, South Africa, and Canada on the subject of preferential trade?
– The answer to the honorable senator’s question is as follows : -
Almost the whole of the correspondence referred to has already been made public from time to time; but inquiry will be made whether there is an objection to publish the remainder.
Bill read a third time.
In Committee (Consideration resumed from 8th October, vide page 6254).
Clause 2 -
After section eight of the Pacific Island Labourers Act 1901, the following section is inserted : - 8a. - (1) The Minister may grant a certificate to any Pacific Island labourer excepting him from all or any of the provisions of this Act.
– It will be recollected that, in my speech on the second reading of the Bill, I pointed out that under this clause the Minister would have power to grant certificates exempting kanakas from all or any of the provisions of this Act ; but the exemption certificates would only be issued to those who wished permanently to remain in the Commonwealth. I quoted to a certain extent from a statement which the Minister had made in another place, and also from the parliamentary paper, a communication from the Premier of Queensland, the Prime Minister’s reply thereto, and a memorandum bv the Secretary of the Department, stating how the Act would be administered in the case of those islanders who were to remain permanently. A number of honorable senators thought that it would be better to state in the Bill the conditions under which the Minister would have the right to grant certificates, and the persons to whom they could be granted. Senator Stewart has given notice of his intention to amend the clause in that direction. I am willing to adopt his amendment with some modifications, namely, to omit all the words after “labourers” in paragraph a, with a view to insert in lieu thereof the following words : -
Who shall prove to the satisfaction of the Minister : -
I cannot adopt the following conditions in his proposed amendment : -
That he has offspring who have been educated in State schools.
That he is the holder of an unexpired leasehold compensation for the relinquishment of which has not been paid to him as provided either by the provisions of the lease or by law.
The objection to the adoption of the latter condition is that leases might be granted merely for the purpose of affording to a man the opportunity of remaining in” the State.
– Let it apply to leases which have already been granted.
– Prior to the passing of the Act.
– The adoption of the condition was recommended by the Queensland Royal Commission, whose report has been known to people for a long while, .and it is possible that a number of kanakas may have obtained leases in anticipation that exemption certificates might be granted.
– Let the power of exemption apply to the holders of leases granted before the 1st January, 1906.
– If Senator Stewart will not move his amendment with the omissions I have indicated, I shall move it. In the first place, with the permission of Senator Stewart, I move -
That all the words after “ labourers,” paragraph a, be left out with a view to insert ir> lieu thereof the words “who shall prove to the satisfaction of the Minister”.
It will be convenient if the proposed conditions are considered separately.
Amendment agreed to.
Amendment (by Senator Playford) proposed -
That the following words be added to paragraph (a) : - “(1) That he was introduced into Australia prior to 1st September, 1879.’
. -It is true that the proposed date is sufficiently remote; but I look at this question from the point of view of those who consider that the presence of the kanakas in our midst is undesirable, and that our object should be to send as many as possible back to their homes, rather than to keep as man as possible within the Commonwealth. I believe that if proper measures are adopted at the islands, the kanakas will be as safe and happy in their homes as they would be if they remained here. Though Ave are allowing those islanders who have been a long time in Australia to remain here, we are, at the same time, legislating against them. We say that they shall be allowed to remain to earn their living, but we have passed a Sugar Bounties Act, in which we provided that no bounty shall be paid to any man who employs them. A short time ago we had another Bill before us under which it was proposed to pay bounties to induce people to grow various tropical products in Australia; but it was stipulated that a bounty should not be paid to a grower who employed kanakas. What is the use of our claiming humanitarian motives for allowing these people to remain in Australia when, at the same time, Ave legislate against their earning a living? The consequence of doing so will be that, as soon as this Bill is passed, there will be an agitation to put the kanakas exactly on the same level as white men in all respects, and to remove all the. restrictions placed upon their employment. Some of these “boys,” as they are called, have been a long time in Australia. They mav be very good and worthy labourers ; thev may be generally docile and useful, though some may be the reverse. But, if Ave are to pursue the policy of encouraging a white population, and of discouraging the mixture of any alien race with ours, Ave ought to do our utmost to prevent an v aliens from settling amongst us. As I have pointed out.
Ave h ave them here now. If they- are allowed to remain under a clause of this kind, practically Ave undertake that thev shall remain until the time of their death. They will be a continual reminder of the existence of kanakas amongst us, and there will be a tendency to keep the sore fresh. If proper means are taken, these people will be able to e]rn their living and be much better off in their islands than in Australia. There is no reason whatever for putting this provision in the Bill. Our first Queensland legislation on the subject was in t.868. Previous to that Pacific Island labourers had been brought in surreptitiously, and were not recognised by law. They were legally recognised for the first time in 1868. and exemption certificates were given to those in the country. There. I think, a mistake Avas made. The proper step would have been to deport them there and then.
– Are any of those men still in Queensland?
– A number of exemption tickets are still held. I think there are bet,een 100 and 200 of such cases.
-Col. Gould. - Have they done any harm?
– I cannot speak of individual actions. I do not know whether they have done harm or good. From 1868 the legislation of Queensland has been upon the basis that the islanders were simply brought in to do certain work under agreement, and were to go back to their islands as soon as their . term had expired. We have been told over and over again in Queensland that we must regard them not in the light of ordinary working men, but rather as beings little removed from machinery, and that, owing to there being no civilized Government in their islands, there would be no difficulty in sending them back as soon as they censed to be required for the purpose for which they were imported.
– They can ‘go back on their own account, if thev like. There is no reason why they should not go.
– There is nothing contrary to the dictates of humanity in requiring that these “toys” shall be returned to their islands, and I feel perfectly sure that if the islands are taken in hand by a civilized Government - say, by the Australian Government - if a magistrate be appointed and perhaps one or two policemen sent to support him, the deported islanders will be absolutely safe. There is no reason why thev should not be put on the path of civilization, and raised in the scale as rears go by.
– Has the honorable senator any idea of the number who would be affected?
– I have not the slightest idea. I cannot find any information on the subject. I simply act on the principle that our object should be to carry out the express intention of the Legislature when it allowed these “boys” to come to Australia- - that is to return them to their islands as soon as their services in the fields are no longer required. It is infinitely better for Australia that they shall go back ; and it is likewise better for themselves.
-Col. GOULD (New South Wales) [11.26]. - An interjection was made just now, that if the islanders are desirous to go back to their islands there is no reason why they should not go. But they would have to apply for exemption certificates to allow them to remain. To allow those islanders who were in Australia before September, 1879, to receive exemption certificates is simply to carry out a law that was passed in Queensland in 1884, when provision was made that all “boys.” who had been imported prior to the 1st September, 1879, should be entitled to certificates of exemption. These certificates were given to islanders who made application for them; but it is said that there are some who did not apply at the time, whilst others have lost their certificates. The report of the Royal Commission says -
There are also islanders who, having been introduced prior to ist September, 1S79, would, had they made application within the prescribed period, have been entitled to certificates, the possession of which would have exempted them from ‘the provisions of the Commonwealth statute. Ignorance and the fact of having been far distant from Brisbane supply the reasons for the failure of these persons to obtain “-exemption certificates.” In addition to these, there are doubtless a number of islanders originally possessors of certificates of exemption, which in the course of the many intervening years have been either lost or destroyed.
– I take it that if any islanders are entitled to remain, but have lost their exemption certificates, the loss, of the document would not prejudice them.
.- But there may not be provision to enable them to renew their certificates. Take the case of the “boys” who were in Queensland at the time the Act of 1884 was passed, who were entitled to make application for exemption certificates, but who, through ignorance of the necessity of applying, or through absence from Brisbane, did not apply. Surely those “boys,” as a common act of fairness, should receive certificates of exemption. It has been the policy of the Commonwealth Parliament all through to recognise the exemption certificates. The Act of 1 901 distinctly states that it does not apply to Pacific islanders possessing certificates of exemption granted to them under the Queensland Act of 1884. Our only object is honestly and fairly to carry out the promise made by that Act, which was confirmed by the Commonwealth Act of 1901, and by giving certificates to prevent any unfairness to these men in connexion with their deportation. I venture to say that if we had no such condition in any Act of Parliament, in not one case of an islander who had been in Queensland before September, 1879, would the Government have attempted to exercise the power of deportation. I hope we shall observe our obligations, and not attempt, for the sake of sending away a few old men - for it was twenty-eight years ago that they came to Australia, and, as a rule, Pacific islanders are not a long-lived race - to insist rigidly on the deportation of such kanakas as I have referred to. We should extend the ordinary considerations of humanity and good faith towards them. ‘ There may not be many of them, and they can do no harm to the Commonwealth; whilst a great deal of harm may be done to them if they are compelled to return to their islands.
– When I spoke a few minutes ago I was under the impression that the date of the first issue of exemption certificates in Queensland was1868. I had overlooked the fact that the date was 1879. as Senator Gould has stated. Therefore, it would simply be a matterof proving that an islander was at that time entitled to a certificate of exemption. Under the circumstances I shall withdraw my objection to the amendment.
Amendment a.greed to.
Amendment (by Senator Playford) agreed to -
That the word “or” be inserted at the end of paragraph a/.
Amendment (by Senator Playford) proposed -
That the following words be added to paragraph (a) as amended : - “ (2) Thathe is of such extreme age or is suffering from such bodily infirmity as to be unable to obtain a livelihood if returned to his native island; or”
– It is an unpleasant subject to discuss, but it is an unfortunate fact that a number of the islanders in Queensland are suffering from leprosy. I put it to honorable senators whether it would not be better to keep and maintain these hopeless incurables on one of their islands, instead of in Australia.
– There would be a great difficulty in the way of doing that.
– We have leper stations here.
– Queensland has an asylum for old people on Stradbrooke Island, about 25 miles from Brisbane, and I should like to know whether it would be any more difficult to have an institution for kanakas in one of the South Sea Islands.
– It would be more expensive, whilst, at the same time, it would not be an improvement on the present system.
– I am satisfied that, at least on one of these islands, there will be a settled community, and doubtless some adventurous white men will go there to make use of this coloured labour.
– Why settle lepers amongst them?
– They should be placed on separate islands.
– Think of the expense.
– I am beginning to feel almost ashamed of my fellow countrymen. Millions have been wrung out of the sweat and the blood of these people, and yet, when we make a proposal to assist them, we are told that we cannot do it - that the Government must adopt the cheapest method.
– Is not the Government proposal an equally charitable one ?
– But I do not think that the question of expense should stand in the way. These men are accustomed to the climate of their islands, and I think that the Ministry should take upon itself the responsibility of maintaining the old and infirm for the remainder of their days.
– They are doing so.
– They should maintain them, not here, but on one of their own islands.
– I am inclined to think that this is one of the few provisions that justify the introduction of the Bill. We have in Queensland a lazarette, in which a number of leprous kanakas are being: treated, and. if we attempted to deport to the islands any kanaka who was so infirm or diseased as to be unable to obtain a livelihood, there would be anoutcry, not merely in Australia, but throughout English-speaking communities.
– Not if we sent them to a proper lazarette.
– There would be a difficulty in arranging for a lazarette in the South Sea Islands. The British Government Resident might object to the establishment of such an institution there. I repeat that this is one of the few provisions that, in my opinion,justify the Bill.
Amendment agreed to.
Amendment (by Senator Playford) proposed -
That the following words be added to paragraph (a) as amended : - “(3) That, being married to, or living as man and wife with, a native of some island other than his own, he cannot be deported without risk to the life of either himself or his family “ ; or
Amendment of the amendment (by Senator Stewart) (proposed -
That the words “ living as man and wife “ be left out, with a view to insert in lieu thereof, the word “ cohabiting.”
– I think that the words “ or living as man and wife with “ ought to be omitted. I am surprised that any Member of Parliament should be in favour of encouraging even a kanaka to invade the sanctity of the marriage tie. If any of these kanakas are living under the conditions mentioned in the provision to which I refer, let them go to the missionaries, and be married in proper form.
– Their ways are not our ways.
– At all events, I think that Senator Stewart should content himself by moving the omission of the words “or living as man and wife with.”
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority … … 16
Question so resolved in the affirmative.
Amendment of the amendment agreed to.
Amendment of the amendment (by Senator Stewart) put -
That the word “ cohabiting “ be inserted.
The Committee divided.
Majority … … 8
Question so resolved in the negative.
Amendment of theamendment negatived.
Amendment of the amendment (by Sena tor Playford) proposed -
That the word “with” be left out.
– I scarcely know what it is proposed we should do - whether we are not endeavouring to pander to the attempt to generate some sort of sentiment throughout Australia about the marriage tie and all that sort of thing.
– This amendment has reference to risk of life.
– If the word “with “ be left out the paragraph will read -
That being married to a native of some other island than his own, he cannot be deported without risk to the life of either himself or his family.
What the amendment means is, that where a kanaka has been got hold of by some of the missionary people who are running the schools in connexion with’ the kanaka settlements in Queensland, and where the missionary people have got the darkie to take his gin to the parson, and marry her in the ordinary European fashion, he is to be given an exemption, provided he can prove his marriage to the satisfaction of the Minister who administers the Act. But where, in accordance with their tribal customs, one of these kanakas is married to a gin with whom he may have been acquainted in the islands, he is not to be exempt. We are to be narrow-minded enough to say that we will not recognise what these people understand as a system of marriage and will compel them to go to church.
– No; we are going to compel them to go to their islands, where the customs to which the honorable senator refers prevail.
– I admit that, and I am prepared to vote for the omission of the whole paragraph independently of whether these men are married in accordance with European customs or not. I am not .prepared to say that if these kanakas have come under the influence of the missionaries, and have by them bee.n legally married in accordance with our custom, they shall remain here, whilst others who are living just as good lives shall be compelled to go back to their islands, because they have not conformed to our marriage law.
– Why should they not be made to conform to it ? If the honorable senator went to their islands he would have to adopt their customs, or be put in the pot.
– I should not. If there was a missionary at hand, I could go through the marriage ceremony to which we are accustomed if I desired to do so, and the islanders would not care whether I was married or not. Rather than make the distinction proposed, we should deport all these kanakas, whether they are married according to our customs or according to their own. We should either do that or exempt them all from deportation.
– The honorable senator is offering a premium to bigamy.
– I am not offering a premium to bigamy, or to loose living. It would be a good thing if many of us took the mote out of our own eye before we tried to take the beam out of the eye of others. We know that there is as much of the kind of thing which is objected to in this instance going on in Australia as in the South Sea Islands. I recognise that these kanakas living with women of their own kind, without having gone through a marriage ceremony as we understand it. are merely following the dictates of nature in accordance with the traditions of their own race, and I decline to be a party to their deportation merely because they have not conformed to a custom of European people. If the amendment is agreed to, I shall vote against the clause as amended.
– It is a matter for verv considerable regret that whenever a question of religion comes in. at the door, all questions of humanity and justice go out at the window. Honorable senators are discussing the clause as though we were determining whether the mere fact of a man living with a woman was to exempt him from the operation of the Act. losing sight of the latter portion of the clause- which really gives it its exemptive power. It is not the fact that a kanaka is living with a woman that is to exempt him; it is that, in the circumstances, he cannot be deported without risk to the life of himself and his family. Some honorable senators have voted in such a way as to say that they are willing that some of these men shall be deported at the risk of their lives, or of the lives of persons to whom they are attached. Is that what is intended? Does the Committee wish to place on the statute-book in cold blood an affirmation that we are prepared to deport kanakas under conditions that will place their lives or limbs in danger?
– There need be no danger at all.
– I have heard Senator Drake’s statement that there need be no danger, and I am sure that the honorable senator makes it in good faith. On the other hand, we have the recommendation of a Commission appointed by the State Government of Queensland, and absolutely indorsed by the Minister who moved this very amendment, and voted against the recommendation, merely because Senator Stewart sought to alter the phraseology of the paragraph. If I were asked to give a vote to say whether I would exempt a kanaka from the provisions of the Pacific Island Labourers Act merely because he was living with a woman, I should say “ No.” But, if it is a question whether I shall allow what might be a life-long companionship, entered into under the, perfectly legitimate circumstances outlined by Senator Turley, to continue, or subject one of the parties to the possibility of being murdered, there would be only one course open to me, and that would be to accept the proposal submitted by the Government to exempt them, or -to leave it to the discretion of the Minister to do so. I again direct attention to the fact that Ministers themselves approved that course in submitting the proposal to our consideration, and we have seen this marvellous change of front merely because the Committee thought to adopt a little better phraseology. The Minister of Defence has made that an excuse for refusing to carry out the proposals he himself submitted to us.
– If the word “with” were allowed to re- main, it would be absolutely out of place, and would render the clause ridiculous.
– So would the word “or.”
– The word “with” seems entirely unnecessary, and should be left out. If the word “ or “ remains, the clause will have to be recommitted. This is a most unsavoury subject.
– There is nothing unsavoury about it.
– It is most unsavoury, when we remember that there are only 145 of these females in the State of Queensland, and some 4,897 males. It is not necessary that we should go into the question of the relations of these gins to the kanakas, but if we are going to permit any of these people to remain in Queensland, they should be compelled to conform to the laws of the State.
– We have no law on the subject.
– We have certain laws< compelling men to support their wives and families, and these kanakas, if allowed to remain in the Commonwealth, should be compelled to conform to our laws. I am perhaps somewhat out of order in referring to a previous decision, but if the clause were allowed to go, as some honorable senators desire, these gins, or “ Marys,” would be passed along from one to another of the kanakas, who would thus be enabled to secure exemption.
-Col. Gould. - Nonsense !
– The honorable senator knows very little about the presence of these females upon the plantations ; or of the inherent possibilities of the case. I think the word “with” unnecessary, and I shall vote against its retention.
– I very much regret the 1’ast division. So far as any member of the Committee can understand, the Government were au:te prepared to approve of the amendment as originally drafted bv Senator Stewart. Senator Playford had himself announced that, if necessary, he would move the insertion of the first four paragraphs. When Senator Stewart, accenting the proposal of the leader of the Senate, intimated that he desired to move a purely verbal amendment, which would improve the phraseology, the honorable senator made that statement in good faith, and relying upon the assurance of the Minister.
– The Minister had a right to reconsider the matter.
– If Senator Drake talks of reconsidering, the Committee also has a right to reconsider the matter. Seeing that we cannot go back, Senator Playford might well tell the Committee at once that he will offer no objection to the reconsideration of the clause. He said that he would support the clause when it contained the phrase “ living as, man and wife.”
– The case for striking out certain words having been put to me very forcibly, surely I had the right to agree to that course.
– If the honorable senator had given us the slightest intimation of his intention to object to the insertion of a word having a similar meaning, neither I nor Senator Stewart would have voted as we did.
– I think that we have done right in striking out the words, and I shall not agree to the insertion of the word to which the honorable senator refers,.
– That statement entirely changes the position. Wittingly or unwittingly, Senator Playford has misled the Committee.
– I am here to exercise my judgment in regard to proposed amendments, because it is impossible for me to consider every detail in the legislation of which I have charge. When what I consider good reasons are advanced for taking a certain course, I have a right to accept them. Why not test the opinion of the Committee by dividing on this amendment ?
– If other words are not put in, the whole value of the clause will be destroyed.
– Not so far as it covers kanakas who are properly married.
– The real object of the clause was to prevent the deportation of kanakas at the risk o’f their lives or the lives of their families, and the protection which it is thought desirable to afford cannot be given if no other words are inserted. Should Senator Turley give me. a lead in the matter. I shall vote for the striking out of the whole paragraph. The position which he has put is sound and fair. Will Senator Playford give us an opportunity for reconsideration?
– That will be for the Senate, not for me, to say.
– As the honorable Senator is the leader of the Senate, I shall be satisfied if he will promise to do what he can to obtain reconsideration.
– The honorable senator had better see whether the Committee will not strike out the whole paragraph.
– Ten minutes ago the honorable senator wished the paragraph kept in. The words struck out were struck out under a misapprehension.
– The honorable senator could take another division on the amendment now before us.
– Why not save time by saying that the honorable senator will allow reconsideration?
– I should have no objection to a reconsideration if I thought it would save time.
– Notwithstanding what, has been said by Senator Turley, I think that the Committee has acted wisely. I do not believe that the authorities will deport any kanaka at the risk of his life, or that of any of his family.
– What power to exempt will there be if this provision is struck out?
– Those who voted for the striking out of certain words did so because we think that the fact that a kanaka is living with a woman should not be an excuse for allowing him to remain in Australia. There is nothing to prevent kanakas who wish to remain in Queensland from complying with the marriage laws of the State. To be married they need not go to a missionary, a parson, or a priest ; they can go to a registry office. The object of marriage in most civilized countries is to make the husband responsible for his wife and children, and to protect’ the latter. Those kanakas who marry will be protected by the clause as amended.
Senator Lt.-Col. GOULD (New South Wales) [12.10]. - I am very sorry that the division took place as it did. I think that it would have been very much better if we had adopted the words of the re commendation of the Royal Commission. It is very strange that because Senator Stewart simply wished to alter the wording, but not the meaning of the amendment, the Minister of Defence should have voted against his own amendment. His excuse is that additional light has been thrown on the meaning of the words. In my opinion he is just as capable of understanding the meaning of plain words asis any honorable senator. It was onlynecessary for him to read the words to know exactly what they meant; but for him to say that he did not know what they meant is to confess to a lamentable ignorance of the English language, or an inattention to their meaning. But in any case he has told us that the Minister of Externa] Affairs intended to adopt that as one of the reasons why an exemption certificate should be given. I assume that if Senator Playford had not an opportunity of fully considering the clause here, at any rate his colleague, who has the responsibility of administering the law, and has referred to the report of the Royal Commission, knew what he was doing when he determined that this was a fair and just reason for issuing a certificate. Senator Playford has turned round and thrown over the determination of his colleague. Of course it is always competent for the Senate to change its mind. I agree with Senator Turley that we ought to take the mote out of? our own eye, and that we are really straining at a gnat and attempting to swallow a camel. The probability is that in most cases the kanakas are living together as man and wife according to their tribal custom, and the proposal would not apply to a case where a coloured woman is living with a number ofmen. We all know that it was not intended to meet a case of that kind.
– I think that there are very few coloured women who are living with a number of men, and Senator Higgs knows that as well as I do.
– I do not know anything of the kind. .
.- I do not think that we wish to do an injustice to those who will be covered by the clause. In my opinion it will be better to take the clause as it stands than to omit it. The fact that an act of injustice is done to one individual is no reason why an act of injustice should be done to others.
– It is quite possible for the others to comply with our conditions.
-Col. GOULD. - In my opinion we had better take the clause as it stands, and leave the question of recommittal to further consideration, allowing the Minister to satisfy himself in each case that according to their tribal custom the couple were married and entitled to an exemption certificate. I believe that we committed an error in making the alteration ; but at the same time I am convinced that no honorable senator has voted with the idea of promoting or countenancing immorality in connexion with the marriage tie. It has been simply a question of how the amendment ought to be read, and what appeals to one mind mav not appeal exactly to another, although both may be running on the same lines.
– The honorable senator admits that he recognises their tribal custom as against our law.
– When the kanakas are here their tribal customs ought to be recognised.
– Not at all ; they are supposed to conform to our laws.
– Is it worse for a couple to be living together, according to their tribal customs, than for a man to be living with a woman without having gone through the marriage ceremony ? “
– We ought not to encourage them by Act of Parliament to dispense with the marriage ceremony.
.- I shall vote for the retention of the remainder of the paragraph, because it will confer some “benefit.
– According to Senator McGregor, the kanakas will be able to do something which will enable them to comply with the law and yet remain in Queensland. He asked, “ Why should we -do anything to allow or induce kanakas to stay in Australia.” but immediately afterwards he said “ All they “have to do is sim.pl v to get married, and then it will be all right.”
– I did not say anything of the kind.
– That is practically what the honorable senator said, because I noted his words.. According to mv note, he said that he would not be a party to doing anything to make the way easy for these people to remain in Australia.
– I did not say anything of the kind.
– So long as the kanakas go up to the registrar and get married it is’ all right, and the honorable senator has no objection to their remaining in Queensland.
– A very few words would stop that.
– I am prepared to enact that all kanakas shall go out of Queensland. We are dealing with the question from the point of view of our own custom. Hitherto we have always recognised the customs of the kanakas when they have come to Queensland. During a period of twenty years while this agitation has been going on, I have never heard any one say “ Compel the kanakas to go before a minister or a registrar and get married, and we will recognise that they will be very much better residents than they are when following their tribal customs.”
– Because at that time the honorable senator was carrying on a more vigorous agitation to get the kanakas out of the country holus bolus. He was not concerned then about the marriage tie.
– At the time we were endeavouring to prevent kanakas from entering the State, and to secure the departure of those who had been admitted. We were not bothering about how they were living.
– The honorable senator used to preach about it.
– I am not preaching; but simply pointing out to the Committee that the kanakas, amongst whom I have been a good deal, are living together just as well under their tribal customs as if they had gone through the marriage ceremony in Australia. I decline to pander to this standard of ultra morality which is sought to be applied to the kanakas against their will.
– It is not a question of ultra morality, but a question of complying with the laws of the State.
– It is a question of ultra morality. It has been stirred up in the newspapers, and the honorable senator does not like to say that he will not bow down to it.
– I believe in upholding the laws of the country in which I live.
- Senator . Higgs asked us to say why these people should be allowed to live together without complying with the law. The fact is that they have families to bring up, and while following their own customs, are just as attentive to their children as are other parents ; in many cases more so. When he said that the women are being handed round as common property, I interjected that he knew as well as I do that it is not the kanaka woman who is being handed round as common property in Queensland among the kanakas, but the poor unfortunate white woman who is being ‘ toted round “ by a person with whom she is living, and taken on to the roads and into the canebrakes for the use of the kanaka when he comes along, and has enough money in his pocket to pay for the accommodation. That is the position as it exists to-day. I do not think that there is. anything unsavoury about the matter. We have just as much right to discuss it as any other questionthat I know of. My feeling is that all the kanakas, whether married or single, should be deported. I certainlydo not think that they should be invited to go to the registrar and get their marriage lines upon the understanding that by adopting that course they will be more fit to associate with us. Would honorable senators impose a penalty upon aboriginals who do not conform to our ideas with regard to the marriage ceremony, or would they confer a privilege upon those who did so ? For many years I have been trying to prevent the kanakas from being brought here, and now I desire that all of them shall be sent back to their islands. Senator McGregor proposes that if the kanakas go through the marriage ceremony, and thus conform to our customs, we should allow them to remain here, but that otherwise they should be deported. It is in that sense that a privilege is being conferred. It is proposed to say to a darkie who has been living with a gin for ten or fifteen years, “ If you are prepared to take your gin up to the registrar and marry her, we will permit you to remain in Australia. If you don’t, out you go.”
– The honorable senator proposes to permit them to remain here if they go through their own form of marriage.
– On the contrary, I propose to deport the whole of them. 1 decline to recognise the claim of those who have gone through the marriage ceremony to remain in Australia.
Senator McGREGOR (South Australia) apprehension under which Senator Turley is labouring.
– He has got the best of the honorable senator.
– No, he has not. I never insinuated anything of the character that SenatorTurley imagined. It was not proposed to confer any privilege upon kanakas, whether married or otherwise, unless they could show that their lives, or those of their partners, would be endangered by their deportation. Even kanakas, married according to the law of Queensland, would have to show that their lives, or those of their wives and children, would be endangered. My point is that, if kanakas who are not married to the women with whom they are living wish to remain in Queensland, they should conform to our marriage laws.
Amendment of the amendment agreed to.
Amendment, as amended, agreed to.
Amendment (by Senator Playford) proposed -
That the following words be added to paragraph (a), as amended -
That he is married to or living as man and wife with a female not a native of the Pacific Islands ; or
– I move -
That the amendment be amended by leaving out the word “ is,” with a view to insert in lieuthereof the words “ has been “ and by inserting the words’ “ before the 1st day of July, 1906,” after the word “ married.”
This would prevent the possibility of an irregular attachment being suddenly legalized with a view to avoid deportation.
– There is an objection to the proposed amendment, because it would prevent a kanaka who had been living with a gin for twelve or fifteen years, and who had married her after the date specified, from obtaining an exemption certificate.
– I trust that Senator Drake will withdraw his amendment. He is taking, it for granted that these islanders know all about our marriage customs, and I think that in these matters we should be actuated for the most part by kindly consideration.
– It seems to me that we are endeavouring to make it more easy for the kanakas to avoid deportation. Under the proposal now before us, a kanaka married to or living with a female not a native of the
Pacific Islands will be exempt from deportation. That means that it does not matter who it may be to whom the kanaka is married. It may be a white woman, cr it may be an aboriginal. We seem to be offering an inducement for a larger number of kanakas to remain in Australia. That seems 10 me a peculiar proposal, having regard to the legislation that has been passed within the last few years. I understood that the desire was to get them out of Australia, but now it seems many honorable senators are prepared to offer a premium to kanakas to stay. They are to be permitted to remain, provided they conform to a law to which they did not think it necessary to conform during all the years they have been in Queensland. I want to get them out of the country altogether. I voted against the second reading of this Bill, and should have called for a division had any other honorable senator been prepared to support me. In my opinion, Senator Drake is perfectly right in arguing that as these kanakas have not thought it necessary hitherto to conform to our law in respect to marriage, we should not say that we will allow them to remain if they marry. The road is, being made absolutely easy for them to remain in Australia. Senator Higgs last night wondered how it was that those who have professed to be against kanaka labour should be proposing a law to allow a large number of them to remain in Australia. Yet the honorable senator offers objections to Senator Drake’s amendment, which would, at any rate, have the effect of saying to the kanakas, “ You have led a certain life ; you have not complied with our law ; we will compel you to go out.” Senator Higgs would say to them, “You can live on as usual, provided you go through a certain ceremony. ‘ ‘
– The honorable senator who has just sat down has, unintentionally perhaps, distorted my views. Some time ago we heard him eloquently pleading on behalf of the kanaka who had lived with a gin for ten years. He gave that as a reason for supporting the amendment.
– I would send them all out of the country.
– The honorable senator, who has charged others with appealing to a certain section of the community, is now appealing to another section, bv saving, “ I would turn them all out.” But in that he would, in some cases, be doing an injustice. I claim, as an argument in favour of the paragraph that we have just passed, that it is eminently founded on a basis of justice. Senator Turley has talked about tribal customs. The tribal customs of the kanakas are, in many cases, that, if a native lands, on a certain island, he may be tomahawked. One object of the paragraph which we have just agreed to was to provide that, in case a kanaka hari married a kanaka woman belonging to another island, they should not be compelled to be returned, because the consequence would be either that they would be separated, or that one of them would be killed. Respecting Senator Drake’s proposal) having been led away by Senator Turley’s pathetic appeal, I saw an objection to it, inasmuch as it would render it necessary that a happy couple, who had been living together for, perhaps, ten years, should be deported, and probably separated. We who have advocated the policy of a White. Australia for many years, have to guard- ‘against doing anything which will be deemed to be inhuman. Having got kanakas into Queensland, and used their services for many years,’ we do not want to send them back to their islands to be slaughtered; or, if some of them have married, and brought into the world children, who have been educated in our schools, we want certain exemptions to be made in their favour. If any kanaka is not prepared to marry a woman he is living with, he will have to go.
– But the honorable senator would give a kanaka an opportunity to marry a white woman, a thing which is hideous.
– - No doubt it is hideous, but such marriages occur in Queensland. I have met a kanaka driving along in a buggy with a white woman with whom he was living. They were’ fairly well-to-do, and apparently quite happy. Much as we may deplore the fact that such, marriages should take place, it has to be admitted that, in some cases, they result in happiness to the parties. In one case a kanaka married to a white woman claimed the sugar bounty, though, of course, . he could not get it.
– We have had cases of Chinamen married to white women claiming the bounty.
– I have known of such cases, where the married people were living in circumstances quite as happy as those of some married white people.
SenatorFraser. - Perhaps more so.
– They seemed to be quite satisfied, and were apparently prosperous.Iseeno objection to a kanaka at present residing in Queensland, and living with a white woman being permitted to remain, provided that he marries her. We all know that there are half-caste kanakas in the Commonwealth, and that such couples are bringing up families; and I object to any honorable senator distorting my statements, and urging that I am in any way faltering in my adherence to principles which I have so long advocated merely becauseI desire to vote in the direction of treating these people humanely.
– There is a marked difference between this paragraph and the one with which we have just dealt. I pointed out, when we were dealing with paragraph 3, that the kernel of it was the condition entitling the kanaka to exemption : that is to say, that the man could not be deported without risk to the life of either himself or his family. There is no such provision in paragraph 4, and seeing that there is such a marked difference between the two, I do not think it is necessary to leave the latter paragraph as wide as I thought was desirable in the case of paragraph 3. I would suggest to Senator Drake that he might modify his amendment by providing that marriage should have taken place prior to the passing of this measure. If. we permitted a kanaka to remain on the ground that he was married three months ago to some person who was not a native of the Pacific Islands, it would be a harsh proceeding to say that a man who was married only a month ago to such a person should not be exempt. If such a proposal as this were given effect, it might give a great stimulus to the matrimonial market.
– I do not think it would.
– It would be absolutely fair to provide that the parties shall have been married prior to the passing of the Bill.
– Make it the 1st June next.
– Then the whole of them will be married.
– The adoption of Senator McGregor’s suggestion would not improve the. paragraph. The kanakas must be deported by 30th June next, and under the paragraph, as it stands, they could marry atany time up to the 29th June. I think that my suggestion would’ be sufficient.
.. - I should like to amend my amendment by substituting the 1st October for the 1st July.
Amendment amended accordingly.
– It is hardly credible that any marriages of thiskindhave taken place since that date.
– They, could not have known of our intentions prior to the introduction of this Bill which was passed by another place only last week.
– Quite so. While the words “ living as man and wife ‘ ‘ remained in the previous paragraph there was no occasion to insert this provision. A rush of marriages, the sole object of which was to enable kanakas to secure exemption certificates, would certainly be most objectionable. I would point out that in paragraph 3 we dealt simply with unions between natives of the Pacific
Islands. It is perfectly natural that the kanakas should form these unions, but in the paragraph now under consideration we are dealing with unions between Pacific islanders and probably members of a European race. It is to such unions that I most strongly object. The legislative sanction of mixed marriages of that kind would be most deplorable.
– But if such marriages have taken place, we cannot do more than deplore them.
– If a white woman married to a kanaka refused to be deported with him, we could not compel her to go, and thus we should have a forcible separation. It is for this reason that I think that marriages that have been contracted - however distastefulthey may. be to us - must be recognised. We must permit the husband to remain; but we ought to do everything possible to prevent a premium being offered to mixed marriages, which the people of the United States, who know something of this matter, view with horror.
– I have every sympathy with the object of Senator Drake’s amendment, and may say that I was also greatly impressed by the statement of Senator Turley that a few of the Pacific islanders in Queensland have been living for, perhaps, fifteen or twenty years with women coming from other parts of the world. According to the honorable senator, they have been living quite innocently with Japanese, Chinese, Australian aboriginal, or white women, according to the customs of their own tribe, and have had no idea of assuming the obligations imposed by marriage in Australia. We have now reached ‘a time when, if they are to remain in Australia, these men must conform to our law on the subject. I do not wish anything, to be done that will induce Pacific islanders in Australia to marry merely for the purpose of securing exemption certificates. My sole object is to allow the few who have been living for some time with women of other races - who, perhaps, have borne them children - to remain here, if it is necessary ; and, if Senator Drake were to amend his motion by providing that those who, up to the 30th June next, marry women with whom they have been living for at least five years, should be granted exemption, I think that would be sufficient.
– Is it not fairthat those who, according to Senator Turley, have been living in this way, innocent of any offence, should have an opportunity to comply with om- laws ? We must deport the kanaka, and if the Japanese or European woman with whom he has been living, and who has borne him children, refuses to go with him, we shall have a breaking up of the family tie - an event that we certainly wish to avoid.
– It is interesting to note the readiness with which those who advocate the retention of the kanaka are prepared to clutch at. any straw on the stream of politics that is likely to help them to put themselves right with the public. Both Senator McGregor and Senator Higgs say that they were very much impressed with my remarks about kanaka men and women who have been living together according to their own tribal customs. That, however, is not the question before us; we have to deal with kanakas who are living, it may be, with white women of our own race, and not with kanaka women, who, probably, could be as easily deported as those whom it is now proposed to send back to the islands.
– Some kanakas are living with aboriginal women. ‘
– That is so. Senator Higgs has complained that I. have distorted what he said. That, however, I deny ; what I am prepared to say is that, while no injustice is done, all of these kanakas should, if possible, be deported. Since I last spoke I have been charged with aiding and abetting people to live in an adulterous state - without having gone through any ceremony whatever. Our friends would seem to be remarkably virtuous ; but they must know that we are not such a highly moral people as to be able to afford to throw stones even at the kanaka, so long as the latter is observing the tribal customs under which he has been brought up. To a great extent this idea of marriage is a pandering to the alleged wave of moral reform or righteousness which is said to be passing over Australia. I have never pandered to the “wave,” and I do not believe I ever should, even to secure or retain a position in this Parliament. Senator McGregor has suggested that the month of June next should be fixed as a limit ; but who is to say how long these people have been living together? The proposal simply offers, a premium to those people to marry with the object of being permitted to remain in Australia. Senator Higgs has presented a picture of the happy kanaka driving along in a buggy with his white woman. But I do not believe that there are many such couples to be found.
– I do not think there are.
– I have known quite a number of mixed marriages in Queensland, but I must say that I have not witnessed that happiness to which Senator Higgs referred. For the most part the people thus united are a pretty unhappy sort of crowd from start to finish. At the same time, I have no desire to do injustice, because I recognise that there are white women who have been foolish enough to live with kanakas. There is no question, however, that these women could, if they sp desired, get the kanakas to go through the marriage ceremony. As to the halfcastes, there have been numerous applications to. the Queensland Education Department to have separate schools for white and coloured children; and I do not desire to make it possible for the schools to be flooded with the parti-coloured offspring of kanakas, aboriginals, or any other races. That is why I say that all kanakas who do not come within the exemptions named should leave Queensland immediately their agreement expires. Unless some absolute injustice will be done, why should the kanakas be allowed to remain, and, taking our women, breed a class of people whom we do not require, and whose presence we have deplored for years? I have been in schools in Queensland where, perhaps, nearly Half of the scholars were copper-coloured or black ; indeed, in one or two schools there were more coloured children than white. Unless something is done in the direction suggested by Senator Drake, I shall contend that those who support the proposal before us are favorable to allowing the kanaka, by means of marriage, to remain in Australia. I shall be no party to offer any excuse to these people, against whom the Federal Parliament legislated six years ago, to continue to make their homes in Australia.
– The position taken up by Senator Turley seems paradoxical.
– That is because the honorable senator does not understand it.
– After tieing himself up in a knot by arguing’ against the marriage tie among these people, Senator Turley poses now as, a lily-white Australian. The honorable senator proposed, under paragraph 3, that a kanaka should be allowed to remain, who is married to, or who is living as man and wife with, a native of some island other than his own, if he cannot be deported without risk to the lives of himself and his family.
– That is, in the event of there being anv risk.
– The honorable senator proposed, in effect, that a kanaka living with a woman in that way should be exempt. This meant that kanakas were to be permitted to live with their gins, and, disobeying all the laws and’ customs of this country, to bring forth children, who were to go to the schools of the country. The honorable senator has himself pictured black, copper-coloured, blackandtan, and other children, all illegitimate, who are to be permitted to attend the schools under the provision desired by him.
– Will the proposal before us make ‘these 600 children legitimate ?
SenatorFINDLEY. - The provision will at any rate, prevent a multiplication of the evils pictured by the honorable sena tor. What is the good of blinding ourselves to facts? Many kanakas are living in a state of adultery with Japanese, Chinese, Cingalese, and white women. But that is no reason why they should not be made, in the future, to comply with the laws of the Commonwealth. If the words are deleted in clause 4, in the way I intend to propose, it will be possible for those people and their children to remain in Australia; otherwise the husband -will be deported, and the wives and children will be left to be supported by the Commonwealth.
– On the other hand, they can all go away together.
– That is so; but I do not think that any white woman, even if she has been living for some time with a kanaka, and has brought forth children, will feel disposed to go to the islands with him.
-Why should she object to go with her husband?
– According to the Royal Commission, no European or Queensland aboriginal women will be permitted to land on the islands.
– Who are those who are opposing the deletion of the words?
– No one is Opposing the deletion of the words.
– The honorable senator opposed the deletion of the words in clause 3.
– And probably the honorable senator will oppose the deletion of the words in clause 4.
– If the honorable senator is arguing on probabilities, it is a different matter.
– I am arguing on actual facts, so faras the honorable senator is concerned. The honorable senator finds himself in a fix out of which he is vainly endeavouring to wriggle.
– The honorable senator is clinging to the straw again.
– That is not so.
Sitting suspended from 1 to 2.30 p.m.
– It is very inconsistent on the part of honorable senators, who desire the retention of certain words in sub-clause 3, to raise any objection to the present amendment. They desire that kanakas who are living together as man and wife should not be deported, on the ground that there would be danger to their lives. I do not see how they can have any valid objection to these kanakas being legally married and made to conform with the laws and customs of the Commonwealth. That would be an additional measure of protection to them, and would safeguard the Commonwealth against the offspring of these coloured people being subsequently a burden on the taxpayers. Such a provision may consistently be supported by the advocates of a white Australia, but we ought not to recognise as married folks kanakas who have been living together as man and wife.
– This does not refer to kanakas living together, but to kanakas living with women who are not kanakas.
– I shall not refer to that aspect of the question until the amendment moved by Senator Drake is disposed of.
– I have no doubt that Senator Drake has a good object in view in moving his amendment, but I fear that it would be injurious to kanakas who have been living with women who are not kanakas, and might have families, although they have not entered into what we understand as a legal marriage. For that reason I prefer that the amendment should remain as it stands. It would give these people an opportunity up to the very last moment], if they so desired to cement their present relations, by a legal marriage. There may be some difference of opinion as to what the word “married” should mean, but I believe that a tribal marriage should be recognised, because it must be admitted that it is as binding upon these people as our form of legal marriage would be. For the reason I have stated, I cannot see my way to support Senator Drake’s amendment.
Senator TURLEY (Queensland) [2.7^. - I cannot see that any harm would be likely to arise if the amendment were agreed to. If the clause were carried as it stands, it would be at the discretion of the Minister to decide that if a kanaka is married at any time, even up to the end of the year, he should receive special consideration.
– It might be six months hence.
– There are between 2,000 and 3,000 kanakas now under agreement, and we propose in this Bill to enable them to enter into agreements for another six months. If at the termination of those agreements they are married, it will be at the discretion of the Minister to say “ You are married to a person who is not a Pacific islander, and the Government, therefore, can grant you exemption.” That would be a premium upon the very thing we have had our faces set against in Queensland for many years. Under such a provision, those who desire that the Pacific islanders should remain in Queensland would have no difficulty in inducing kanakas to look around and pick up any women they could find who were not Pacific islanders, take them before a registrar, and obtain a certificate. It amounts to a statement that we do not wish to get rid of them, and if they will only pay j£i for a certificate from a registrar they will be entitled to remain in Australia. Senator de Largie has said that he is opposed to the amendment because he prefers that the clause should remain as it stands, and I am pointing out that if it is allowed to remain as it stands it would mean that a kanaka has only to get a woman who is not a Pacific islander, but who may be a Japanese, a half-caste, an aboriginal, or a white woman, and so long as he takes her before a registrar and pays £1 for a certificate he will be entitled to remain in Australia. That would be merely putting a premium on mixed marriages.
– Would not Senator Drake’s amendment bring about the same result?
– No ; it would prevent it. We have to deal here not only with those who are living together under their Tribal law, and who represent but a very small number. ‘ The difficulty is that, under this provision, between 2.000 and 3,000 Kanakas will have only to take some kind of women who are not Pacific islanders before a registrar in order to get certificates which will enable them to remain in Australia.
-39l- - This measure has been introduced hy the Government ostensibly, and I believe really, in the interests of humanity. Senator Stewart, actuated bv the same feeling, gave notice of an amendment which the Government adopted. They have voted against one of their own amendments, but I shall say nothing about that just now. The object of the amendment now before the Committee is really to enable these poor men to do the honorable thing bv the women with whom they have been living.
– Does it not open the door very wide? There might not be so much objection to make provision for those who have been living with women for ten years, and have brought up children, but it is proposed now to open the door practically to all.
– We might say that those who have been living with women for tea years must marry them within a certain time if they desire to remain in the Commonwealth. Such an arrangement would do no harm, but would be in accordance with common humanity. After all, there are not so many of these men, and we ought to deal justly and honorably with all, whatever their colour. It seems to me a strange thing for the Minister to bring forward a proposal and then to vote against it.
– The’ Bill, as introduced, gave the Minister power to declare who should be exempt, it being understood that he would follow the recommendations of the Queensland Royal Commission. Tlie Committee, however, desires the embodiment of those recommendations in the measure.
– But the Government are not embodying all the recommendations ; they are altering them.
– To a certain extent. I think it best for us to plainly limit the power of the Minister, not leaving the interpretation of the law to him. I am inclined to agree with Senator Drake that the paragraph should apply to kanakas who have married before the date which he wishes to fix.
– The recommendation of the Commissioners had regard to marriages contracted up to the time when they issued their report, including the cases of kanakas who were living with women as husbands and wives. That recommendation we have disregarded.
– Yes, and very wisely and properly. Senator Clemons has twitted me with having brought forward a proposal, and then accepted an amendment of it; but he has not explained his own action in voting for a higher duty on certain kinds of spirits than he. as a member of the Tariff Commission, recommended. He has on many occasion complained of my obstinacy in not accepting amendments, but when I do accept them he objects. I am always ready to listen to the arguments of honorable senators, and when I think that a suggested amendment improves, a proposal I am ready to accept it.
Senator Lt.-Col. GOULD (New South Wales) [2.44]. - I admit that the Minister is justified in accepting amendments which he thinks will improve his Bill ; but in this instance he is adopting a course contrary to that which he has pointed out to be the well-considered proposal of the Government. Although there are measures about which he has told us that he has not fully made up his mind, the Bill before us has received the careful consideration of the Prime Minister, who, we have been informed, is prepared to act on the recommendations of the Queensland Royal Commission, with two exceptions, neither of which have yet been considered by the Committee. No doubt, in coming to that determination, he was governed very largely by the reasons given by the Commissioners for their recommendations, and those reasons should weigh with the Committee. The Commissioners say -
As the Imperial Resident Commissioners will not permit the landing in the islands of European or Queensland aboriginal females, the compulsory deportation of islanders allied to such persons would lead to the enforced separation of persons virtually husband and wife.
The offspring of such unions have already been referred to. A considerable proportion of these children have been educated in State schools, and they have acquired habits which, should they be compelled to submit to the life prevailing in the islands, may result in their suffering a certain amount of hardship. The evidence given before the Commission leads us to believe that a large proportion of these children would contract the island malarial fever. To compulsorily deport the parents alone would be inconsistent with the humane treatment of both parent and child.
However much the irregular unions which have been spoken of are to be deplored, we should recognise a state of things which has been in existence for years, and take into consideration the position of both parents and children. Is it not better that kanakas who have children should remain here to support them than that those children should come on the State? If I thought that it could be provided that, only in cases where there were children of a union, the parties to it should be allowed, by marrying, to obtain exemption, I would support such an amendment, because I recognise the possibility of kanakas marrying utterly worthless ‘women, in order to remain in the Commonwealth. Then comes the question : On which side does the balance of advantage lie? Does it lie on the side of making sure that the children of the unions shall be treated in a humane way, or on the side of running the risk of treating the children in another way, and making sure that there shall be no further marriages between islanders, to be used as an excuse for their remaining in the Commonwealth? Taking everything into consideration, I think that it lies on the side’ of humanity. Surely honorable senators must realize the great force of what I am saying. I do not believe that there is a single senator, however much he may be opposed to kanakas remaining in the Commonwealth, who wishes to do anything but what is just and humane. These wretched people, if I may be allowed to use the term, have no powerful friends at their back. They do not belong to a nation which can take up arms or enter into negotiations with us, in order to make sure that thev shall be treated properly.
– And a very good job for us, too.
– Does the interjection mean that we are going to take advantage of the weakness of the kanakas, and do things which we would not dare to do if’ they belonged to a powerful nation ?
– It means that the kanakas would not have submitted to some of the laws to which they have had to submit in Australia.
.- That maybe so. I would rather err on the side of humanity and mercy in dealing with the kanakas, because they are a weak people who have no force behind them except that of humanity. I believe that there is not a member of this Parliament who, if he would only reflect calmly, would not come to the same conclusion as I have done. I would urge upon honorable senators to take the most lenient possible view, and to follow the suggestions made by the Royal Commission, which, I take it, was composed of men who commanded the confidence of the people of Queensland, and whose guiding principle, no doubt, was a desire to treat the kanakas with honesty and fairness. We might very fairly and reasonably accept their recommendations, because, after all, thev do not go far beyond what is already provided for. They are. only dictated by a spirit of humanity and consideration towards the children of the kanakas, who otherwise must either be deported with their parents, probably to an early death, or be allowed to remain without having the protection of their parents, and to become a charge upon the Commonwealth.
– I desire to say a few words in reply to the’ last speaker. Practically he said to me, “ You, Senator Playford, do not know much about the Bill. You have not had an opportunity to study its contents, but one of your colleagues - the Prime Minister - has, and we ought to consider that he would agree to the clause as it stands, because he was going to administer the law in that particular direction. You are going against the views of the Prime Minister; you have no right to do so; you ought not to agree to the amendment.” What did the Prime Minister say on this very question in another place? He said -
The islanders will be dealt with individually upon the report of the officers, which will fully set out the grounds upon which any one of them obtains his certificate.
Mr. Mahon. Would the Prime Minister exempt a kanaka who had married during .the last year or so?
Mr. DEAKIN. Yes.
Mr. Mahon. Then the Prime Minister has a good means of defeating the Act.
Mr. DEAKIN. No kanaka who marries hereafter will be exempt from the provisions of the principal Act.
That is, as to deportation. The Prime Minister never intended to acknowledge the marriage of any kanakas after the passing of that Bill. That is all that Senator Drake is asking us to affirm.
– After the ist October, 1906.
- Senator Drake is only going back a few days. What he is attempting to do is really what the Prime Minister intended to do in administering the law. In the circumstances I am perfectly justified in voting with Senator Drake.
– The Prime Minister was willing to agree to the words “ living, as man and wife.”
Question - That the word “ is “ proposed to be left out be left out - resolved in tho affirmative.
Question - That the words “ has been “ proposed to be inserted be so inserted - put. The Committee divided.
Majority … … 10
Question so resolved in the affirmative.
Amendment of the amendment agreed to.
– The question now is -
That after the word “married” the following words be inserted : - “ before the first day of October, 1906.”
– I desire to move an alternative amendment and that is to insert the words “ prior to the passing of this Act,” because I do not see why the provision should be made retrospective.
– If the amendment of Senator Drake be rejected Senator Walker will have an opportunity of moving his amendment.
– Can I not move an amendment on the amendment?
– Cannot Senator Drake agree to the proposal of Senator Walker?
– I am willing to alter my amendment by substituting the 9th of October for the date now mentioned.
Amendment of the amendment amended accordingly, and agreed to.
.- I move -
That the amendment be amended by leaving out the words “or living as man and wife with.”
It has been pointed out during this debate that there are 145 female kanakas and 4,897 males in Queensland. Forty males are married to, or are cohabiting with, European women; sixty are married to, or are cohabiting with, female aborigines or half-castes; eighty-nine are married to, or are cohabiting with, females from their own islands ; and three are married to, or are cohabiting with females of some other nationality. The offspring of these couples number 316 males, and 325 females.. The amendment proposed will make the paragraph read in conformity with the one previously adopted.
Senator Lt.-Col. GOULD (New South Wales) [3.4]. - I should like to direct the attention of senators to the peculiar position into which they are drifting. If a kanaka gets married before the 9th of October, he will not be liable to deportation, whereas, if he defers the ceremony until the 10th October, he will have to be sent back to his island home. Therefore, the couple married before the9th October will be able to remain here and look after their children, whereas the others will be separated from their offspring. Is not this reducing the whole thing to an absurdity?
– The children will be protected by the proposed exemption in paragraph 5 relating to offspring who have been educated in State schools.
– We do not intend to adopt that.
.- I am willing to support SenatorFindley in adopting paragraph 5 in the interests of the children, who are not to blame in any way for the circumstances attending their birth, and are entitled to our consideration, sympathy, and support. I would point out that all the powers of exemption given to the Minister are of a permissive character, and that he will be in a position to deal with each case on its merits.
Senator Col. NEILD (New South Wales) [3.6]. - I would make an appeal to honorable senators, not on behalf of the kanakas, but in the interests of their unfortunate children. Under the proposal now before us, the children in one case are to have the benefit of parental care, whereas in the other casethey are to be denied it. With the greatest respect for those who hold different opinions, I submit that it is proposed to draw an arbitrary line which will involve great cruelty to certain children.
– Some of us hope to insert the proposed paragraph, exempting kanakas who have offspring who have been educated in State schools.
– If that be done some relief will be afforded. God forbid that I should advocate immorality, butit seems to me that these ignorant islanders who have been permitted to pursue a course of concubinage have lived under a white man’s law in a white man’s country, and have in a great many instances fulfilled white men’s conditions. What would be the result if a similar rule were applied to white parents who had not entered into the bonds of matrimony ? A great many fathers would have to be deported. I do not see why half-caste children should be dealt with more severely than white children who have been born out of wedlock.
– If my amendment were adopted they would not be penalized.
– They would be penalized to the extent that their parents would be removed. If every male parent who had not enteredinto the bonds of matrimony were to be removed from Australia there would be a considerable number of gaps in the community. I am not in favour of treating ignorant islanders with any greater severity than the educcated people of our own race. This is not so much a question of law as an attempt - very worthy from one stand-point - to improve the morals of the community. In some of the States - in New South Wales, for instance - there is a statute which enables the parents of children born out of wedlock, and who subsequently inter-marry, to legitimatize their offspring by a very simple process. I had the honour of submitting the Bill to the Legislature. I did not remain in the State Parliament long enough to see my Bill pass through both Houses, but only through that of which I was a member, but the present Chief Secretary of New South Wales took charge of it after I came to the Senate, and secured its being placed upon the statute-book. That is a case in which a great State has deliberately provided for making up to unfortunate children, as far as it can, for the mistake or improprieties of their parents. Now, however, it is proposed actually to penalize and to make more harsh and unfortunate the lot of the children of the kanakas born out of wedlock. Goodness knows they will have difficulties enough in front of them in a country that is so rampantly strong on the white Australia policy, without our making their case worse. I ask, in the name of good sense and humanity, what is to become of them? I do not think that we should be doing that which is right in the sight of either God or man if we adopted the present proposal. I hope that it will not be pressed. I feel sure that I am not making a light appeal to the Committee.
Question - That the words proposed to be left out be left out (Senator Findley’s amendment) - put. The Committee divided.
Majority … …. 10
Question so resolved in the affirmative.
Amendment of the amendment agreed to.
Amendment, as amended, agreed to.
– I move -
That the following words be added to paragraph (a) as amended : - “(5). That he has offspring who have been educated in State schools; or.”
I do not know why Senator Play ford should object to this paragraph. It appears to me that the fact that a kanaka has children who have been educated, or are being educated, in a State school, affords very strong ground for not deporting him ; because if he be sent away, and his family remain, the family will be deprived of its natural head. On the other hand, if the family are sent away with him, we shall be deporting children educated in our own country, speaking our own language, trained in our own customs, and planting them in the midst of a barbarous society. I appeal to the Committee to support the paragraph.
– I should like the Minister to say whether he thinks that the word “ State “ would cover all schools within the State ?
– Some of the children may be attending private schools.
– I think we ought to include the words “ private or “ in the amendment’.
– The word “State” would cover all schools inspected by the State Department of Education.
– But do the Government inspectors examine all schools? I think that it would be well to make our intention clear.
– Although the task is an unpleasant one, I must oppose the insertion of this provision. The question should be viewed from the point of view of the future of Australia.
– The Commission recommend this proposal.
– Some of the recommendations of the Commission, of which I heartily approve, have not been accepted by the Government, but I am glad that they are not prepared to adopt this proposal, lt is all very well to talk of humanitarianism, but the policy of Australia is that these people shall be treated as an alien race with whom we do not wish to mix. During the last twenty years a large number of South Sea Islanders have come to Australia, and we were promised from the first that as soon as their labours were no longer required, they would be deported. Now that the time for the deportation has arrived, all sorts of pleas “for their retention are being put forward. According to the report of the Commission, 273 kanakas have formed unions of some kind, and up to the present time, according to this report, thev have 641 children - 316 males and 325 females. If we allow these couples, with their children, to remain, we shall have the nucleus of a kanaka population. The present negro population of the United States came from a verv small beginning. Only about sixty were landed in the sixteenth century.
– How many were subsequently landed there?
– Owing to a very proper sentiment, mixed unions have been opposed, and the coloured population of the United States has been allowed to remain apart. There are now there something- like 10,000,000 coloured persons, who constitute one of the gravest problems, not only to the United States, but to the whole world. If we allow al] these people to remain, they will multiply, and we shall also find ourselves face to face with a serious difficulty. The prospect of a number of these people remaining quite apart from us. but living in Australia, is not a pleasing one, nor isthe likelihood of their being absorbed into our own population, leaving a stain for all time in our blood, a pleasing contingency. Rockhampton is one of the finest towns in Queensland, and a fine people occupy it; but about 2 miles beyond it - on the north bank of the Fitzroy - one finds a number of ‘ huts, surrounded with small garden, plots, in which kanakas are living, under conditions that would lead one to believe, on going there, that, he had been suddenly put down on a South Sea island. Is it desirable that we should have such coloniesnear any of our towns ? I think that it isnot. If we are going to have something like t.500 or more of these kanakas remaining in Australia, together with their chil dren, we shall have a very good beginning for an alien population, that mav one da give rise to grave difficulties.
– The insertion of this provision would mean, roughly speaking,, the keeping of over 1,100 kanakas in Australia.
– That is so. 1 do not contemplate any separation of the families. When we decide that the parents shall return to their islands the children will naturally go with them.. If proper steps are taken for their welfare - if schools are established upon the islands - the small modicum of education that the children have received here will prove ot enormous benefit to the natives. Australia has cast upon her the responsibility of assisting the people of the South ‘ Sea Islands to raise themselves in the scale of civilization. When the Estimates are under consideration I shall urge the Senate to request another place to restore to its original position a certain item which was reduced by .£12,500, so that the money mav be used in assisting these islanders to make a new start in their own land - to help them to adopt agricultural pursuits, to erect comfortable buildings, and to provide them with schools, which ought to have been erected before now. There should not only be schools, but arrangements should be made for teachers, in order that the children, who have had the advantage of the State schools in Queensland, may experience no gap in their education.
– If the whole ^25.000 were spent in that way, it would not be a penny toe much.
– Part of the money will be required for the expenses of deportation. We could easily find what I may call a neutral island which has at present a very small population; indeed, I understand that the Bishop of North Queensland has already made some arrangements in one island for the reception of kanakas, and Mr. Woodford, who was the Resident, made a report, from which I gather, in conjunction with my general reading, that there would not be the slightest difficulty in finding an island that could be perfectly civilized, and where life and property would be as secure as in Australia. There is no reason why kanakas and their children, if they did not wish to go to the islands of their birth, should not go to such an island, and start life under auspices as favorable as those they are at present under. There should be no separation of children from parents ; but the fact that a child attends the State school’s should be no reason for permitting the parents to remain here. The parents should go back to their islands, and take the children with them.
– Ihope Senator Stewart will consent to alter his proposal so that there may be no distinction made between children educated at the State schools and children educated at denominational or private schools. I am surprised that Senator Drake should take up such an extreme attitude. The honorable senator is one of the kindliest of men ; and yet. if we were to carry out his view, we should be acting in a most inhumane manner. We have a large population of some 50,000 aboriginals, who are, perhaps, of much greater danger to the community than are 1,000 kanakas.
– No; the kanakas live and breed, whereas the aboriginals are a dying race.
– In Bundaberg, I have seen quadroons who, so far as their complexion is concerned, could not be distinguished from natives of southern Europe. Then, again, there are the Maoris, who are a fine race.
– They are akin to the kanaka race.
– Whenwe have a population of 50,000 aboriginals, I do not see whv we should make such a fuss about 1,000 kanakas.
.- I should like the idea of the kanakas, and all belonging to them’, being deported, if that could be done on Christian, and humanitarian methods. There must, however, be some exceptions, and the question is what those exceptions are to be. Senator Drake’s suggestions are good, and it would be a splendidundertaking if the kanakas could be sent to one or two of the islands of the Pacific, where they might live acivilized Christian life ; but the Government are making no attempt in this direction. I do not blame the Government for desiring to save money ; but we have no business to save money at the expense of the life, education, or the progress of the black man out of whom we have made so much. Paragraph 5 requires alteration, because it says . nothing as to the ages of those who are being educated at the schools, and it is my intention to move that the words “ or are being “ be inserted before the word “ educated.” I ask Senator Stewart what he means by the words “ have been.” Do they mean that a kanaka with a son sixteen or seventeen years of age, who has been educated at the State school, and is now working in the cane-field, shall not be deported, or does it refer to the father of children ranging from five to twelve years of age, who are at present being educated in the State schools? I move -
That the amendment be amended by inserting after the word “been,” the words “or are being.”
– I took the words have been from the report of the Royal Commission.
Amendment of the amendment agreed to.
Amendment of the amendment (by Senator Walker) agreed to -
That the words “ or other “ be inserted after the word “State.”
– I listened with great interest to the remarks by Senator Drake; and, while I agree with every word he has uttered as to the desirability of clearing the Commonwealth of all kanakas, and transplanting them in semi-civilized conditions in the South Sea Islands, I recognise that we are passing a law now which has to become operative in the near future. So far as we know, the Commonwealth Government have made no arrangements for receiving families in any of the South Sea Islands, and there educating them and training them in habits of industry, and continuing them in the enjoyment of the customs of civilization to which they have been habituated in Queensland. That being so, I think that my proposal ought to be supported. If the Commonwealth’ Government had any plan with regard to the settlement of kanakas in the South Sea Islands, I should support Senator Drake’s suggestion; but the Government have .no proposal, and are not likely to submit one. That being the case, we ought to take the best course we can in the circumstances.
– Our action now would be irrevocable.
– Not necessarily. If we find at some future date that it is desirable to remove these people holus bolus out of Queensland, and place them somewhere else, proper arrangements can be made to that end. It is not necessary that we should send the kanakas to the islands, because we could locate them in Northern Queensland ; indeed, I think that is what will ultimately have to be done with them. Although there is no prohibition by law, it is not likely that many of them will be employed in connexion with the sugar industry, and they will be driven into. other walks of life where their competition will be objected to. The final result, I imagine, will be that the whole kanaka population will be collected in one particular spot under Government supervision, either in Australia or in some one or other of the South Sea Islands. Meanwhile, no preparations have been made with that object in view, and if these children are not to be deported to the islands we must pass some such paragraph as that before us. It is all very well for Senator Drake and others to say that we have decided upon having a white Australia. I do not know that any one has been more active or more sincere in his efforts to bring about a white Australia than I have, or is more desirous of seeing its full accomplishment. We know that every country must pay some penalty for its sins, and this is a part of the penalty which Queensland, or Australia, has to pay for the original offence of bringing these people from their native islands. Humanity demands that these children who have been born in Queensland shall have some consideration extended to them. It is not their fault that they have been, born in Queensland or are kanakas.
Many of them can speak English, have been trained in our habits, and are fairly educated, and there is every probability that in time they will become good citizens. Senator Drake seems to fear that, if these 600 children are not immediately deported, we shall have a repetition of the American negro problem. I do not think that a few hundred kanaka children are likely to materially affect the colour of the race occupying this Continent.
– Is the honorable senator aware that in Queensland, north of Cape Palmerston, one out of every three adult males is a coloured man at the present time?
– I know that at one time in North Queensland two out of every three adult males were coloured.
– There was a time when every adult -male in Queensland was a- blackfellow.
– According to the Registrar-General’s figures, there are 25,000 coloured people in Queensland, and thev are nearly all north of Cape Palmerston.
– We are now cleaning up, so to speak. This is portion of the residue which has been left as a result of the policy of bringing kanakas into the country to engage in the sugar industry. While we are all extremely desirous of having Australia as white as possible, we are bound to extend some measure of consideration to these young people.
– In extending consideration to the 600 children we must also extend consideration to about 540 adults.
– What could we do with them?
– The amendment means that the parents of children attending the schools are not to be deported.
– It has always been understood that this kanaka legislation would be administered in the most humane fashion possible, and with every consideration for the interests and feelings of the people concerned.
– It was understood that they would all have to go back to their islands.
– The sin was not theirs; itf was ours; and do what we will we cannot escape some portion at least of the penalty. If at any future time it should ibc found necessary to segregate these people, to put them into a settlement by themselves, I shall be prepared to support such a proposal very heartily. I think that that should be done now, but no arrangement of the kind has been made or promised, and we are driven back on the bare fact that, unless some provision to the contrary is made, a large number of these helpless and innocent children may be forcibly deported from Queensland in the very near future.
– That is to say, they will have to go with their parents. There is no very great harm in that, surely?
- Senator Drake is quite right in saying that they will go with their parents, but I as,k honorable senators to imagine the change from the conditions of civilization in Queensland to the conditions which possibly may prevail in one of the South Sea Islands to which it is proposed that these children should be deported. Thev will be practically aliens in the country of their parents. Indeed, they will be worse than aliens. They will be looked upon as interlopers by the people who live there, and, unless the strong arm of the law is extended to help them, the probability is that they may lose their lives, or be subjected to very serious wrong. In the absence of any provision for their protection, such as has been suggested, are we to send these children away with other kanakas, with their education abruptly broken off, and the whole of the circumstances, of their lives completely and absolutely changed? I think the Committee should pause before taking such a serious step.
.- The clause is still incomplete. We are dealing with the question of the offspring of kanakas, and we should limit the provision to children. I therefore move -
That the following words be added to the amendment : - “ and who are under fourteen years of age.”
I do not think that we desire that’ young men, who may have been educated years ago in the State schools, and are now able to exercise their own judgment and earn a living should be left in Queensland. I have suggested fourteen years of age, because most children leave school at that age.
Senator Col. NEILD (New South Wales) [3.48]. - I donot know that I have ever been more profoundly astonished at anything in my life than I have been at the attitude of Senator Drake. I have always regarded the honorable senator, as I believe every member of the Committee does, as a gentleman of singularly gentle instincts ; but to-day we find him with a face of flint, and adopting an attitude of inhumanity that would sit badly even on a cannibal out with a war club. I should not have thought such a thing possible. If Messrs. Bent and Judkins were not in the way, I should have been prepared to take any sized wager that Senator Drake would have dealt with this matter in the kindly spirit which he has always hitherto displayed in this Chamber, and which is one of the chief characteristics which have so endeared him to us all.
– I am thinking of the future of Australia.
– I cannot understand the honorable senator taking up an attitude of such irreconcilable hostility to helpless childhood. Surely in this Chamber we are not going to legislate in such a way as to affirm that there is nothing in paternal responsibility or filial regard? We are surely not going to give an excuse for the declaration that certain political leanings are towards the destruction of the marriage tie and home life, by providing that the parents of children born on Australian soil, brought up in accordance with Australian manners, and educated in Australian State schools, shall be sent , away, anywhere, leaving their offspring here as paupers, in the care of the State. This is carrying the White Australia craze to a length which I am sorry to hear suggested in this Chamber.
– They are infants up to the age of twenty-one.
– Minors, not infants.
– In the eye of the law, they are children, as plenty of Statutes will show. I am the author of two Acts of the New South Wales Parliament for the protection of children. These Acts are called “ Children’s Protection Acts,” and, as they provide for children up to twenty-one years of age, they afford proof that, in a legal and parliamentary sense, the term “children” is applied to those who are legally infants. In any case, the number of kanakas who have children cannot be very large. Before concluding, I shall make a suggestion, which I hope the Minister will lay before his colleagues, and that is that kanakas who cannot safely be returned to their own islands because of the cannibalistic practices prevailing there, shall be sent to some of the islands in the south of New Guinea, within our Papuan Possessions.
– There are scarcely any kanakas whom it will be impossible to return to their own islands because of the prevalence of cannibalism there.
– Only three days ago a gentleman whom I have known for many years, and who has nothing to do with politics, told me that he has just come from the Solomon Islands, where a dreadful state of things exists, because the presence of a missionary or two has scared the wild cannibal tribes ofl the interior, with the result that they have ceased to barter vegetables for fish with the coastal natives. As a rule, not only in the South Seas, but elsewhere, coastal tribes, who live largely on fish, are not cannibals ; it is generally the inland . tribes, who cannot always get a flesh diet who are cannibals. We have black cannibals inland in the Northern Territory and in Queensland. Friends of my own have been killed and eaten by them. The coastal natives, of the Solomon Islands, having lost their vegetable supply, are suffering from serious diseases. It is notorious, that an undue consumption of fish leads to leprosy. Are we to send these unfortunate children, brought up in a civilized country, and educated in our public schools, to dwell where loathsome diseases are rampant? I think that we should
Tefrain from such an act of cruelty and cowardice. Parts ofi Australia are overrun with coloured persons. There are very few kanakas or half-caste kanaka children in the Northern Territory but its population is made up of half-bred Javanese, Japanese, Chinese, and Malays. I never saw a more extraordinary mixture, or the “ sign of the cross “ more evident, than when the children of the public school at Port Darwin were turned out to sing “ God Save the King “ in honour of the Governor of South Australia, who was there on a visit at the same time as I was. But, because the parents of these children came from countries possessing recognised Governments, the Commonwealth is not game to propose to deport them. It acts quite differently in regard to the unfortunate kanakas, many of whom were brought here bv force and fraud during the existence of. the Queensland slave trade. To put down that same slave trade, six schooners were built in John Cuthbert’s yard in Port Jackson. The course of criminality in bringing these unfortunate people from the islands in the interest of the great sugar industry is notorious. Let me mention how it was often done. The natives would be coaxed alongside the blackbirding schooner or brig. When the frail canoe was alongside, the plan was to drop cannon balls or stones or other heavy weights through the bottom, and when the unfortunate creatures were struggling in the water, they were rescued from a watery grave and taken to Queensland as slaves. That is one of the many tricks that were played in connexion with recruiting in the old days, say, back in the sixties. For forty or fifty years we have had the natives here not as strangers, but as kidnapped beings within our gates.
– Those who benefited by the presence of the kanakas ought to be made to look after them now.
– With that remark I cordially agree; but I think that the Commonwealth of Australia might rise a little higher and occupy a little nobler position than to start at this stage to tear away fathers from their children in the manner which is proposed. I looked upon this as a remedial measure, and one which was intended to wipe away some of the stain which previous legislation had, in the estimation of many persons, placed upon the Commonwealth. I looked upon the measure with a great deal of pleasure, and upon Senator Stewart’s proposal with even greater pleasure. Whether carried or not, it will redound to his credit, wherever humanity is valued more highly than tyranny, wherever consideration for the weak receives more thoughtful respect than the exercise of the strong arm against the helpless. I sincerely hope that it will be agreed to. It would do no harm to the Minister if he consented to this amendment. He has consented to the amendment of many Bills of whichhe has been in charge, as every Minister has to do. In one respect; the proposal of Senator Stewart is more restrictive than that of the Government.
– The Bill, as it came up, left it entirely to the Minister to use his discretion.
SenatorCol. NEILD.- Exactly. Under the Bill the Minister is allowed the freest license in the world, and Senator Stewart proposes to definitely restrict his power to certain limits. Every lawyer knows that it is more dangerous to restrict than to give a free hand. Suppose that Senator Walker had to administer the Bill as it is drawn. What a glorious scope there would be for the riotous play of his humanitarian instincts. He would exempt every kanaka in Queensland for whom he could find an excuse. But under Senator Stewart’s proposal, the granting of the certificate is to be restricted under (eight specific headings, and, therefore, there would not be the same opportunity for the exercise of humanitarian instincts. I believe that if the Prime Minister had the administration of the Bill as it is drawn, it would be administered with the greatest consideration, and every possible kindness. But I cannot say that that would always be the action of the Minister who might be called upon to administer this law. I do the Minister of Trade and Customs the credit of believing that if he were charged with the administration of the Bill he would act with humanity and consideration. If I ‘‘do have a joke here at his expense sometimes, it does not mean that I. fail to recognise his good qualities and his humanity. I am never ashamed to own that in acts of legislation and administration I would always lean in the direction of regard for the helpless and the weak. If we so legislate or administer that we do not allow our feelings of humanity - the human kindness of one man to another - to have reasonable play, what kind of a community should we become, bound up with red tape and regulation? God forbid that any one of us should ever live in a community so helplessly situated ! In begging that the greatest possible humanity mav be shown to these children, I am only doing that which I think is in accordance with the best interests of Australia, because if it is such a shocking kind of community that it cannot bear the risk of a few coloured folk living out the rest of their days on its territory its condition must be a very parlous one indeed. I hope that Senator Stewart’s very excellent and wisely-designed proposal mav be agreed to unanimously.
Senator FINDLEY (Victoria) [4.71.-If one were to be moved bv sentimental reasons, he would feel inclined to vote for the proposal of Senator Stewart. But we ought to deliberate very seriously in this matter, because it is one of very serious moment, not merely to Queensland, but to the whole of the Commonwealth, I am inclined to follow Senator Drake in the lofty view which he takes of a White Australia. He, no more than any one else who feels disposed to vote against the suggestion of Senator Stewart, desires to do anything inhuman or unjust. Every member of the Labour Party, and every person professing liberal views in every part of the Commonwealth, has for a considerable period of years declared in favour of a White Australia policy, and pointed out the danger to the nation unless that policy be rigidly maintained. Let us see what a seriousdanger would ensue if we were to adopt the suggestion of Senator Stewart.
– Senator Dobson has moved to insert the words, “ and who are under fourteen years of age.”
– Senator Dobson agrees in the main with the suggestion of Senator Stewart, but I do not agree with either the amendment of the former or the suggestion of- the latter.
– The honorable senator can speak when the clause, as amended, is put.
– I think I can cover the ground now. We have had pointed out to us the dangers which confront Australia in regard to coloured races. Knowing as we do how serious the race problem is in the United States, I think that Senator Drake is not far wrong in making a prophesy that in all probability, unless we deal seriously with this question, a similar race problem will confront us in Australia within a very short period. The whole outcry against the employment of kanaka labour on the sugar plantations in Queensland has been owing to the fact that there have been over 5,000 kanakas employed there. If Senator Stewart’s suggestion were adopted what would it mean? It would mean that we should keep within our shores at least 1,183 of these coloured persons. There are 31.6 males, and 325 females, or a total of 641 children, the offspring of the kanakas in Queensland, and if we exempt the parents because the children are attending private or State schools we shall allow to remain in Queensland 270 male kanakas with their female partners.
– The honorable senator is altogether leaving out of consideration the effect of the provisions which have already been agreed to.
– Probably the great majority of the 270 couples are married, and I do not think that I am far wrong in stating, that the effect of Senator Stewart’s amendment would be to exempt from deportation 1,183 persons. We know how rapidly coloured people multiply as compared with people of white races.
– They generally die out.
– Not at all. The negroes in the United States are very far from dying out. Senator Neild, in making an appeal on behalf of the kanaka children, mentioned the case of the coloured people at Thursday Island and Port Darwin. I saw these people some little time ago when I was returning from a trip to Japan. The honorable senator must recollect that the kanakas were brought to Australia on the understanding that at the expiration of their contracts thev would be deported to their native islands. That law has not been carried out.
– Two-thirds of the kanakas, after being restored to their homes, voluntarily came hack to Australia
– That may be so, but in all cases the islanders should have been deported at the expiration of their contracts. It would be far better for the white race that these coloured people should be sent to their native islands, where, as Senator Drake has pointed out, they would probably have an elevating influence upon their own people. We are legislating, for the whole Commonwealth, and should do our best to prevent trouble arising in the future owing to the rapid increase of the! coloured element amongst us.
Senator TURLEY (Queensland; [4.15]. - I cannot understand the position taken up by Senator Findley. He tells us that if Senator Stewart’s amendment is agreed to it will result in the retention in Australia of 1,100 kanakas. That is the greatest nonsense imaginable, when we remember what we have already done. We have decided that kanakas who are married to women belonging to islands other than their own shall be permitted to remain, and to this extent the estimate given by Senator Findley must be reduced.
– The kanakas referred to will be subject to deportation unless it can be shown that risk would attach to their repatriation.
– I am pointing out that we have already agreed that nearly 100 kanakas who are married to or cohabiting with native women shall be permitted to remain, and the number represented by these couples and their offspring must be deducted from the 1,183 coloured persons mentioned by Senator Findley. I find that forty kanakas are married to’ or cohabiting with European women.
– I think that the marriages with European women must be com,paratively few.
– We have no information upon that point. Senator Stewart proposes that male kanakas who have children attending the State schools shall be permitted to remain, and I should like to know how many persons would be affected by this provision? We have absolutely no information.
– We can form an estimate.
– No, we cannot; for the reason that we do not know how many of these couples are- married. It is possible that many of those living in the Bundaberg and Isis districts may be entitled to exemption, but a considerable number of those included in Senator Findley’s estimate of 1,183 would be subject to deportation.
– That does not remove the danger to which Senator Findley has directed attention.
– I know that a considerable number of kanakas who are living with women are not married to them. It is assumed that all the offspring of kanaka unions are legitimate. I do not believe that anything like half of them are married. This is one of those questions which, in my opinion, are better left to administration. I know that Senator Stewart’s object is to provide, as nearly as possible, for fair treatment being meted out to a large number of children of kanakas who are going to school in Queensland, and many of whom are halfcastes, who have been born and grown up in the country. But, however good the object may be, I doubt the wisdom of putting the provision in the Bill. In some cases it is better for Parliament to express its will in black and white, so that a too sympathetic Minister may not be able to do things which his personal inclination would lead him to do. But in this instance we can rely upon it that evenhanded justice will be done. In all probability many of the kanakas will be willing to go back to their islands, even though they have children who have been born in Queensland. For years past obstacles have been put in the way of their return. Some kanakas, who are working on the plantations, have told me that at one time they had saved enough money to buy goods with which to trade and to return to their islands, butthat there was no ship available to take them back; the consequence being that they spent all their money, and then had to take fresh engagements to work on the plantations. Senator Stewart would be wise not to press the amendment. I am satisfied that the result will be, as pointed out by Senator Neild, that a sympathetic Minister may think that he is doing a splendid thing by allowing kanakas to remain in Queensland, and that, in all probability, many will take advantage of the provision.
Amendment of the amendment agreed to.
Question - That the paragraph as amended be added to paragraph (a) as amended - put. The Committee divided.
Majority … …9
Question so resolved in the negative.
Amendment (by Senator Playford), agreed to -
That the following words be added to paragraph (a) as amended : - “(5) That he was on 1st . July, 1906, and still is, registered as the beneficial owner of a freehold in Queensland; or.”
– As Senator Stewart does not intend to proceed with amendment No. 7, which has been circulated in his name, I propose to move it subject to a slight modification. I move -
That the following words be added to paragraph (a) as amended : - “ That he was, prior to the 30th June, 1906, and is the holder of an unexpired leasehold, compensation for the relinquishment of which has not been paid to him as provided by the provisions of the lease or by law; or”
– Has thehonorable senator in mind a lease for a term of years ?
– Yes ; I had in Townsville a friend who leased at a given rental for ‘a certain number of years, one part of his property to a kanaka, another to a Chinese, and a third part to an aboriginal. If a kanaka happens to be a leaseholder, I do not seewhy he should be in a worse position than a freeholder. Some kanakas have not had the means to acquire the freehold of aproperty. but have leased it.
Question put. The Committee divided.
Majority … … 5
Question so resolved in the negative.
Amendment (by Senator Playford) proposed -
That the following words be added to paragraph (a) as amended : - “ (6) That he has been continuously resident in Australia for a period of not less than twenty years prior to the 31st day of December, 1906; and”
– I intend to oppose this amendment. In 1883 - twenty-three years ago - Queensland was stirred to its depths on the subject of the introduction of kanakas, and the result was a general election, which sent the Liberal Party into power with a big majority to put an end for all time to the system. The majority, when they got into power, hurriedly passed a Bill in 1885, providing that no kanakas should be introduced after the 31st December, 1890. Nothing further was done until there was a change of Government, when there came a reaction. The former legislation was repealed, and a new Bill was passed, enabling importation on the conditions that the employers paid a certain proportion of the return passage. The understanding was that kanakas were only to be brought in to be employed under agreement to be sent back to the islands. We need not deal with what has taken place since ; but the point is that not a single kanaka was brought in after that time, except on the understanding that he should return as soon as he ceased to be employed in the particular work for which he was engaged. I cannot see any justification for an exemption on the ground that a’ kanaka has been resident for twenty years. That term takes us back to 1886, which was after the Bill had been passed providing that no more kanakas should be introduced after the 31st December, 1890. In mv opinion, the grounds that have been considered and rejected by the Committee were stronger than the grounds set forth in this paragraph. The mere fact th’at a kanaka has been engaged and re-engaged does not give him a settlement, or a claim to permanently reside here.
– I hope Senator Drake will not ‘have many supporters of the view he has expressed. It seems extraordinary that a man of Senator Drake’s humane principles and feelings should endeavour to eliminate such a provision.
– Senator Drake is a lawyer.
– I am quite sure that Senator Drake does not look at this matter merely from the point of view of a lawyer. I cannot help expressing mv astonishment that he should wish rn drive out of Australia any man. even a kanaka, who has resided here, notintermittent] v. but continuously, for r period of ‘twenty years. The whole object of kanaka legislation in the past. whether right or wrong, was to prevent any further importations. The question before us, however, is not one of further importation, but really one of the most ordinary forms of humane treatment that could be extended to any person, black or white, who has, rightly or wrongly, been permitted to continuously reside in Australia for twenty years. The only justification I can discover for Senator Drake’s view is that there were intermittent efforts on the part of the Queensland Government to prevent kanakas residing here. Those efforts, however, were not successful, and, under the circumstances, I hope the Committee will support the insertion of the paragraph.
Amendment agreed to.
.- I am not going to oppose paragraph b of sub-clause 2, though it goes very much against the grain to agree to allow six months for the deportation. The report of the Royal Commission gives certain advice, which, if acted upon, would enable the deportation to be carried out in very much less time. We are told by the Government that they have adopted the cheapest plan ; but if the plan be the cheapest it is certainly not the best. I recognise that the Government have entered into a contract, under which a long period will be required to accomplish the deportation, and therefore we must bow to the inevitable. It would have been very much better, however, if steamers had been chartered, and if, proper provision being made, the kanakas had been deported altogether. Paragraph b is very illogical. We are told that this plan is adopted to save expense, the kanakas being deported in batches of 500 or so month by month. If there were an invasion of Australia I have no doubt that the Minister of Defence would be prepared to move thousands of troops to any point on the coast to meet the invader, and, by-and-by, would be mobilizing a fleet, and putting all our fighting strength in line. But when it comes to transporting peaceful islanders over the summer seas to their island homes he is aghast, and asks for six months in which to accomplish’ the work. As a matter of fact, the transportation could have b?en accomplished in a week or so if proper provision had been made, and this might have been made a great event, of benefit both to v.s and the islanders.It is only because the Government have unwisely entered into a contract which it will take a long time to complete that we have to submit to this provision. Because these people will be in Australia, and we think they should be allowed to earn their own living, we are giving them an extension of time for six months, while, at the some time by our legislation we prevent them earning their living. Under the Sugar Bounties Act we provide that no bounty shall be paid on cane grown by the employment of these men, who, from humanitarian motives, we are asked in this Bill to allow to remain six months longer in Australia.
– Many growers are now employing them, with a full knowledge that they will not get the bounty.
– Not a very great many, and there are many in the Bundaberg district who have broken their agreements with the kanakas in order to secure the bounty. Surely if there had been any little delay in the deportation of these kanakas, the Government might have undertaken their maintenance for a reasonably short time. It is because the Government have made an unfortunate contract, which will render the process of deportation a very slow one, that it has become necessary to allow the kanakas to reengage for another six months. I emphasize this point however - that there will be six months within which the Government can do what they ought to have done before, and that is to make provision in the islands for the reception of these people. We have altered the measure in such a way that some, who, as it was introduced, would be able to claim exemption, will not now be able to do so, but if the two Houses vote the necessary funds for the purpose there is nothing to prevent the Government making such arrangements in the islands as would prevent thepossibility of any hardship to these kanakas as the result of their deportation.
– I intend to submit an amendment, for which I claim the vote of the Minister. I move -
That the following words be added to paragraph (a) as amended : - “ and for such other reasons as the Minister may think fit.”
– That would nullify everything we have done to-day.
– When Senator Stewart came forward with these amend ments, and we were informed that they were suggested by the Queensland Royal Commission, they found favour in our sight. It is impossible to deal with every case specifically in an Act of Parliament, and if we are to deal with these men from humanitarian principles, we must make provision for cases which will not come under any of the paragraphsso far inserted for the guidance of the Minister. I venture; to say that, in the first twelve applications for certificates of exemption we shall find one which has not so far been provided for. As Senator Playford placed before us a measure leaving every reason for the granting of a certificate to the discretion of the Minister, he surely cannot object to the amendment I now move. We might have a case of a couple living faithfully together for ten or fifteen years, but, under the amendment, as amended so far, the Minister would have to refuse them a certificate of exemption.
– Having established seven different rights, the honorable senator proposes to give the Minister power to grant a certificate of exemption where there is no right.
Question - That the words proposed to be added be added - put. The Committee divided.
Majority … …10
Question so resolved in the negative.
.- As I think the Government have not allowed themselves sufficient time in which to complete the work of deportation, I move -
That the word “ June,” paragraph (4), be left out, with a view to insert in lieu thereof the word “ September.”
– If the Government have not allowed sufficient time, they must take the blame. The honorable senator does not desire the deportation of kanakas.
– I recognise that the law requires their deportation, but they should be deported in .a humane fashion. It must be remembered that one vessel may have to call at half-a-dozen different islands before she gets rid of her passengers. I am satisfied that the deportation will not be completed bv the 30th lune.
– I direct the attention of honorable senators to the following statement made by the Prime Minister in another place : -
Then we provide for the issue of special certificates, which will enable kanakas to be employed under an agreement between the 31st December next and 30th June following. We are arranging with a shipping company that their boats shall call regularly at the various ports, and the special certificates which will be issued will, as far as possible, be timed to provide a full passenger list for these vessels. Thus a Pacific Island labourer will be enabled to know approximately the day upon which his ship will bc ready to receive him. That provision will confer a benefit upon the kanakas themselves, inasmuch as it will prevent their savings from being dissipated, and it will benefit the Residents at the various ports, who might otherwise be embarrassed by the presence of a number of Islanders waiting for the vessels by which they are to be deported.
In February, March, April, and May, which form the hurricane, season, many islands are very difficult to approach, and the vessels will consequently be delayed. No harm can be done by altering the date to the 30th September, because, no doubt, each vessel will take her full complement of kanakas, and if they can all be deported by the 30th June, so much the better.
– I intend to move the omission of the words “ whether general or” in sub-clause 3, because I think that the general certificates should not be subject to cancellation.
– I understand that Senator Millen has an amendment which will meet the case.
– Then I shall not press mv proposal.
– Sub-clause 3 empowers the Minister to cancel at any time any certificate which has been issued ; but I think that when a certificate has been obtained im good faith, and has been granted for any of the reasons for which an exemption may be allowed, the Minister should not have power to cancel it. I recognise, however, that he should have power to cancel a certificate obtained by false representations, as well as the special certificates allowing kanakas to obtain work until vessels are ready to convey them to their islands. To meet this case, I have adapted a provision of the Naturalization Act, and propose to move -
That the following new sub-clause be added : - “4. Where it is proved to the satisfaction of the Minister that a general certificate has been obtained by any untrue statement of facts or intention, the Minister mav cancel such certificate.”
Before moving my amendment, however, it will be necessary to amend sub-clause 3, which deals with both general and special certificates, so as to limit the power of the Minister to the cancellation of special certificates at any time. Under the new subclause which I propose to insert, the Minister would have power to cancel general certificates upon proof that thev had been obtained by false representations.
– I propose to adopt the suggestion of Senator Millen, and to ask the Committee to amend subclause 3 so that it will read -
A special certificate under this section shall, subject to the terms and conditions expressed in the certificate, have the effect of excepting the Pacific Island labourer mentioned therein from any specified provisions of this Act, but may be cancelled by the” Minister at any time.
I move -
That the word “ special “ be inserted after the word “A” in line r of sub-clause 3.
– - I would suggest to Senator Millen, as a better way to carry out his view, that he should leave sub-clause 3 as it is down to the word “ Act,” strike out the words, “ but may be cancelled by the Minister at any time,” and then put in his provision with regard to the cancellation of a general certificate under certain circumstances.
– The Minister would then have no power to cancel a special certificate.
– We want power to cancel a special certificate at any time.
– It will not do to except the general certificate from that part of the sub-clause which refers to the terms and conditions.
– As a special certificate will only last for a short time it is hardly worth while bothering about. If honorable senators will agree to put in the amendment I shall have the Bill carefully gone through, and then if any drafting or other amendments should be found necessary I shall ask them to go back into Committee, and make them. I think that that would be the best course to take, because on the spur of the moment it is very difficult to see the effect of an amendment.
– The Bill could be gone through during the dinner adjournment.
Amendment agreed to.
Amendment (by Senator Playford) agreed to -
That the words “ whether general or special “ be left out of sub-clause 3.
– In view of what the Minister has stated, I shall move my amendment in its original form, but I would suggest that it would be preferable to adopt the wording of sub-clause 3, substituting the word “general” for the word “special.” and adding the words “ but may be cancelled if the Minister has reason to think that it has been obtained by false and fraudulent representation.” I move -
That the following new sub-clause be added : - “4. Where it is proved to the satisfaction of the Minister that a general certificate has been obtained by any untrue statement of fact or intention, the Minister may cancel such certificate.”
– I thoroughly approve of the object of the amendment, but I shouldlike to know whether we are now proceeding in the proper way. I do not know whether the Minister wishes to constitute himself a Court, and to examine witnesses ; but it seems to me that the proper course would be to call upon the kanaka suspected of having made false representations to show cause why his certificate should not be cancelled.
– Perhaps, after all, it would be better to adopt the wording of sub-clause 3 in the manner I have suggested, andI therefore desire to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator Millen) agreed to -
That the following sub-clause be added : - “4. A general certificate under this section shall, subject to the terms and conditions expressed in the certificate, have the effect of excepting the Pacific Island labourer mentioned therein from any specified provisions of this Act, but may be cancelled by the Minister if at any time he has reason to think that such certificate hasbeen obtained by false and fraudulent representation.”
Clause, as amended, agreed to.
Amendment (by Senator Findley) agreed to -
That the following new clause be inserted : - “3. Any person aiding or abetting any Pacific Island labourer in the obtaining of a certificate of exemptionby means of false and fraudulent representations to the Minister shall be guilty of an offence against this Act. - Penalty,£50, or three months imprisonment, or both.”
Title agreed to.
Bill reported with amendments.
– I move -
That the Bill be now read a second time.
Honorable senators will see that this Bill, apart from the short title and incorporation clause, consists of two clauses, and is intended to amend the (patents legislation passed by this Parliament. The object of it is to rectify some misunderstandings that have occurred in connexion with our patents administration to the prejudice of certain persons who have made applications l.’or patents. When the Bill was first introduced in another place, it contained as a vital clause only clause 2, which, as honorable senators will see from the marginal note, gives “ power to extend times and revive lapsed applications.” That clause had application to section 29 of the principal Act of 1903, which reads as follows : -
Application for patents may be lodged at the Patent Office immediately after the Commissioner is appointed, notwithstanding that this Act has not then commenced, and all applications so lodged shall have priority as prescribed, and the lodging of an application under this section shall have the like effect as the lodging of an application after the commencement of this Act, butany patent granted pursuant to the application shall be dated as of the day of the commencement of this Act. Until forms
are prescribed, applications shall be in such forms as the Commissioner directs. Applications made under a State Patent Act may be lodged as prescribed before the commencement of this Act, as applications under this Act.
When we passed the Act we did as we have done in regard to similar machinery measures; - that is to say, we made provision that the Act should come into effect on a day to be fixed by proclamation. Of course, the Commissioner - was to be appointed before the day of the proclamation, because he would have to become acquainted with his duties, and get all the machinery ready for the Act to come into effective operation on the date of the proclamation. We provided that during the interim between the appointment of the Commissioner and the Act coming into operation, applications for patents might be lodged at the Patent Office. Under other provisions of the Act certain rights arise within a certain ^period, and after a certain time applications lapse unless certain acts are done by the applicants. We find, for instance, that under section 67 of the Act it was provided that -
A patent shall be sealed as soon as may be, and not after the expiration of sixteen months from the dale of application, or such further time as is prescribed, or as the High Court or the Supreme Court allows.
Reading together the two sections that I have quoted, there was some ambiguity and doubt in the minds of certain persons as to certain applications under section 29, lodged after the appointment of the Commissioner, but before the Act came into operation, whether the sixteen months within which the patent might be sealed was to date, not from the actual lodging of the application, but from the commencement of the Act.
– Surely that is right.
– I am not saying whether it is right or wrong, but that there was some doubt. Obviously the two sections read together are reasonably capable of either construction being placed upon them.
– The Minister has read that the priority would be “ as prescribed.” Was it prescribed?
– I presume that it was. That would be done under the regulations.
– - An answer to that question would answer the question as to the date of the application.
– The question is: From which date did the sixteen months commence to run - from the date of the actual lodging of the application before the Act came into operation, or from the time when the Act came into operation ? In consequence of that doubt, applications have been delayed by the office, and have lapsed, and it is intended that what is an error that might very easily be accounted for by the ambiguity of the language of the Legislature, should not be allowed to prejudice such applications. Consequently, it is provided in clause 2 of the Bill that the Commissioner, or on appeal from him, the law officer, may extend the prescribed time, and revive any application for a patent or any proceeding relating thereto which has lapsed by reason of an omission to take any step within the prescribed time. Then of course, we have to consider that there are others besides the applicants whose interests have to be conserved in any legislation of this character. Where power is given to extend a certain time, that power ordinarily can only be exercised within the currency of that particular time. When it terminates, the power cannot be exercised. Therefore it is provided in clause 2, that -
Then further we provide -
So that there will be only a period of six months for prejudiced persons to come in and apply for the powers of this measure to be exercised in regard to them. Then, in case any application for a patent has been revived, or in case a patent has been granted, pursuant thereto, we have the condition that the public interests are not in any way infringed. It might be that if we did not make provision to the contrary, a lapsed application having been revived might be construed to give the patentee rights in . respect pf the infringement for which he might1 seek some remedy against the public We therefore provide that where any application for a patent has been revived, and where a patent has been granted pursuant thereto, no damages in respect of any infringement prior to a notification of the revival of the application published in the official journal of the Patent Office, shall be awarded. So that if an application of that character has lapsed, and an application is made under this measure to have it revived, a notification of the fact of the revival must appear in the official journal of the Patent Office, and any infringement of the patentees right prior to that date will not ground any action for damages. I think that honorable senators will see that in every way the interests of the public, and of the applicant, are amply safeguarded. Clause 3 of the Bill is of a much more general character. It is not confined to circumstances that may have arisen from the misinterpretation of section 29 of the Patents Act. It empowers the Commissioner to remedy lapses arising from errors in the Patent Office. It is provided that where any error has caused any application for a patent to lapse, the Commissioner may revive the application, extend the time for taking the necessary step, and permit the step to be taken. We provide in this case, as we did in regard to clause 2, that there must be a particularly limited time within which applications must be lodged for the exercise of these powers. The limit that we propose is one month after the applicant or party - has or might with reasonable diligence have become aware of the error or omission or in cases where the error or omission occurred before thecommencement of this Act within one month after the commencement of this Act.
We make a corresponding provision to that which appears in the previous clause, requiring a notification of each application to be published in the official journal of the Patent Office, and we give power to any person to oppose the granting of the application in the manner (prescribed. We also have a provision similar to that which appears in the principal Act giving power to appeal to the law officer from any decision of the Commissioner under this clause, and we safeguard the public from any action for damages that may be taken for an infringement that may have occurredprior to the notification of the revival of the application being published in the official journal of the Patent Office. The hardships which this Bill is intended to remedy are those which have arisen, either from a pardonable, if not a justifiable, misinterpretation of section 29 of the principal Act, or from whatmay be designated as errors, omissions, or actions of an in correct character on the part of the patents administration.
– Under what section of the existing Act have such errors been made ?
– I cannot recollect many, but I have heard of some arising from the existence of two towns of the same name in the Commonwealth. Documents have been misaddressed by the Patents Department, and applicants have thereby been prejudiced owing to an error on the part of the office. The first of these cases was one in which a document was sentby the Patents Department to “ Maryborough, Queensland,” instead of “Maryborough, Victoria,” or vice versa. A small number, it may be, of cases of hardship to individual applicants have occurred owing to theinability of the Department to suddenly cope with the great volume of work that fell upon it when it was called upon to draw together the administration of the States Acts - a work which has been transferred to the Commonwealth. Even now, under the administration of the Commonwealth, effect has still to be given to many provisions of the States Acts. It was difficult for even the most competent officers to be at once thoroughly familiar, not only with the Commonwealth patents law, the provisions of which relatesolely to more recent applications, but also with the varying patents laws of the different States, many of the provisions of whichthey still have to enforce in respect ofapplications granted perhaps before the States Departments were transferred.
– Could not these errors be cured by appeal to the law officer under section43 of the principal Act?
– I think not.
– Surely the difficulty arising from the sending of a document to the wrong postal address could have been cured in that way.
– An applicant might misconstrue the absence of a communication from the Patent Office, and allow his rights to go, only to find when the letter addressed to himby the Department eventually reached him through the deadletter office that had he obtained it in time he would have had certain rights under the Act. The Patent Office has brought under the notice of theAttorney-General’s Department errors and omissions of this kind, and it is thought that where persons have been prejudiced in thisway,
Parliament should provide a proper remedy, whilst at the same time safeguarding the interests of the general public. I was speaking a few moments ago of the volume of work which must necessarily fall upon such a Department as this. I had quite recently a personal experience of a case in which some doubt had arisen as to how far one of the provisions of a State Statute applied to proceedings that had taken place in the Patent Office. The matter necessitated considerable attention upon the part of interested persons, both inside and outside the office, and I believe that in the course of their investigations, they discovered the existence of certain provisions which might otherwise have escaped observation, and prejudiced parties interested in the patent outside Australia. One car. realize, therefore, the extent of the work that falls to the Department. Although Commonwealth legislation has in one respect superseded that of the States, regard has still to be paid to many of the States enactments. Before the Department was transferred to the Commonwealth, rights had arisen under them, and obligations had fallen upon persons which have still to be fulfilled. I think honorable senators will see that the Bill is designed to remedy injustices due to the fault, not of the persons labouring under them, but of either the Parliament or the administration, and that we are endeavouring, while remedying these injustices, to secure that the persons concerned shall gain no advantage to which thev would not otherwise be entitled.
– The explanation given by the Minister is a very clear and lucid one. It seems that circumstances have arisen necessitating the introduction of a measure of this kind ; and it has been suggested to me that the salutary provisions of the Bill might be of more general application. I’ shall be very glad if the Minister will give the matter his consideration. I should like the honorable and learned senator to consider whether these provisions for the rectification of errors might not be extended to other applications. This is of some importance, because we are dealing with a law availed of to a great extent by people who are not trained lawyers. I am, of course, not speaking of patent agents, who, in manycases, are lawyers, and who make the study of this law their particular business, but to the would-be patentees, a great many of whom, whether wisely or not, endea vour to put their applications through personally. It follows of necessity that they, not being well acquainted with the provisions of the law, make slips in some cases ; and it would be desirable, if no harm would result to any one else, to give the Commissioner power to rectify such slips. That could be done if the Minister would agree to an amendment to make the provisions of clause 2 general, and not confine them to applications made under section 29 of the Patent Act 1903 - to applications made before the Act came into operation. Would there be any danger in giving the Commissioner, or, on appeal from him, the law officer, power to make a similar concession in the case of a mistake which has been made in any application? What harm would result if, in the case of any application, the Commissioner might, for good cause shown, extend the prescribed time or revive an application ? I now refer to clause 3, which is similar salutary legislation ; but the correction is limited to errors or omissions on the part of officers of the Patent Office. In the case of officers, who are supposed to know all about the law, we provide that, if they make a mistake, the Commissioner may revive an application, extend the time, and so forth. Why should the Commissioner not have similar powers, provided no one else is prejudiced, in the case of, say, the applicant for the patent? It is very likely that an applicant, unaccustomed to proceedings of this kind, may not exactly comply with the law in the way of filling up a form or something of that kind,; and why should his error or omission not be rectified in the $ame way as that of an officer of the Patent Office? Of course, such a power would have to be safeguarded in every possible way, and care taken that any correction did not prejudice any one else.
– If there’ is no danger, what is to prevent an application beginning de novo?
– An applicant may have gone to some expense, and have spent a good deal of time ; and it would be rather hard to make a man begin de novo, if power can be given to the Commissioner to rectify any error.
– Senator Drake has raised a point which, I suppose, any of us anticipated. We have been told, and, I dare say, rightly, that concrete instances have come to light showing injustice and hardship ; and the probability is that, because of such instances, the Government have thought it desirable to introduce this amending Bill. The appeal is first made on behalf of the officials administering the Act, to allow a kind of condonation for errors into which they may have fallen, because of the many difficulties which surrounded their task when the Act came into operation. Under some circumstances, I can understand that this would be a desirable appeal to make, and one to be listened to and granted. Before I deal with the question raised by Senator Drake, may I point out what might happen if we were to deal solely with the errors and omissions of theofficials administering the Act? The trouble is the possibility that in endeavouring to remedy one injustice we may create another. I want to know whether, on examination of the facts, it is quite certain no one else would suffer if we condoned the errors into which the officials have fallen. Let us assume that owing to the error of some official, an application for a patent has lapsed, and that this Bill is passed in order to enable that application to be revived. So far there may be no injustice. But if in the interval some other applicant, in spite of the previous errors, of the officials, has conformed with the Act as he found it, and has done everything that is legal and right-
– And spent large sums of money.
– And possibly spent large sums of money to secure for himself some patent, I want to know if it is possible that such a man would be injured by the revival of the application which was made prior to his, but which, owing to the fault of the officials, has lapsed. I ask Senator Keating to seriously consider this point, because it is very material.
– That illustration has much more application to Senator Drake’s suggestion than to the Bill, which is confined purely to officers’ mistakes.
– I shall confine myself to officers’ mistakes. Let us assume that some considerable time ago A put in an application for apatent, and that the officers have decided that that application has lapsed ; and. that subsequently B puts in an application for the same patent, and so conformed with all the provisions of the Act. in the opinion of the officers, that his application was held to be good. For all
I know to the contrary - I am not dealing with a concrete instance - such an application may have been granted, and such a patent issued. Now, if we allow A to revive his application as from the original date, what is to happen to the rights which have legally and properly accrued to B, although such rights have accrued through the errors of an official?
– I do not think that that has any reference to any case the Department knows of ; but provision has been made for the other possibility of infringement.
– Unless all possibility of such a thing happening has been exhausted, we might, while desiring to cure one injustice, be creating another. We should be absolutely certain that there is no such case as I have instanced. As we have, I suppose, to legislate in the dark with regard to such matters, desirable as the Bill is from some points of view, it should not be forgotten that in passing it at the present time we would be running a serious risk. Senator Keating referred me to sub-clause 4 of clause 2, which deals with an infringement of patent, but that does not in any way cover the point. It reads -
Where any application for a patent has been revived as aforesaid, and a patent has been granted pursuant thereto, then if any proceeding is taken in respect to the infringement of a patent, no damages in respect of any such infringement prior to a notification of the revival of the application published in the official journal of the Patent Office, shall be awarded.
– Those are the only conflicting rights that the Department is aware of.
– I do not deny that there is some value in that sub-clause, but it does not apply to the case I have mentioned. As a matter of fact, the ‘Bill does not cover such a case. It is possible that no such case exists, but I can conceive it as extremely likely that some one might come along with a subsequent application which would be in order,and perhaps secure a patent which had been denied to a previous applicant. As we know the immense value and importance of patents to inventors, who are a class of people we should desire to encourage in Australia, I think it is very dangerous to go on with the Bill without further information. Senator Drake has suggested with regard to clause 3, that when errors have arisen owing to some general or non-particular failure under the Act, the latitude which this Bill purports to extend to the patent officers should, be extended to an applicant. There again we are confronted with the same danger. . I understood Senator Drake to suggest that where an applicant has found that his application lodged two years a>go has lapsed owing to some general, and, possibly, trivial mistake, or non-compliance with the provision of the Act, we should allow him to renew his application.
– If it could be done without prejudice to any other person.
– That is only fair.
– We should have some chance of checking the matter in connexion with cases dealt with before, but none in the cases mentioned by Senator Drake.
– I am using this as an a fortiori argument. If we consider that there is a danger with regard to the very limited application of the Bill provided for in clause 2, it will be extremely dangerous to say to any applicant who failed for any general non-specific reason to get his application in in time, or to prevent it lapsing, that he may renew his application, and begin again just as if he had complied with all the provisions of the Act-, because in the interval many applicants might have complied with the provisions of the Act, and should be able to acquire a patent. I think it is dangerous to allow such latitude with regard to clause 3 for the reasons I have indicated, that it is dangerous, unless it is shown that we have exhausted all possibilities of doing injustice to some unknown man living in Queensland, in Western Australia, or some remote State of the Commonwealth. I do not think I can be a party to adding to the risk of injustice by accepting such an amendment as Senator Drake has suggested. There will be risk if we allow even errors committed by officials in a general way to be condoned under clause 3>.but there will be great additional risk if we also condone the errors of applicants and persons outside the Patent Office. Therefore, while I hope for some possible solution which would justify us in passing the Bill, I am at present afraid that in trying to remedy one ‘ instance of hardship we might possibly ourselves be perpetrating more than one act of injustice.
Senator Lt.-Col. GOULD (New South Wales) [6. 7]. - I welcome this Bill as a remedial measure, and one which with all justice might very well be passed by the Senate. Cases have been conjured up of possible hardships that might be inflicted, but T think that in the practical application of the measure, they would not be found to exist. An essential of an application for a patent is that the invention must not only be novel, but must have had no prior publication whatever. When a man makes his application for a patent and discloses what his invention is, that is not a publication as against him, because it is a necessary step to enable the patent officer to ascertain whether he is entitled to receive a patent. If an inventor, having submitted his application for a patent, through any default in the law, or on the part of a patent officer, loses the benefit of his application for a patent, no other individual will be entitled to get a patent for that invention, because the placing of it in the first instance before the Commissioner has been a publication, so far as all other applications for a similar patent are concerned. Two men might make applications for a patent at the same time for identically the same invention, and in such a case it would be necessary for the patent officer to determine who was entitled to priority, and the application which is prior in point of time must necessarily be preferred. If they lodge their applications together, and in consequence of the default of one his application is allowed to lapse, it will then be perfectly competent for the Patent Office to grant a patent to the man who had observed all the regulations and complied with the law. The second man having got his patent, although the application of the first might be renewed under this Bill, the Crown would refuse to grant him a patent in consequence of having previously granted it to somebody else. Therefore, it would not be possible to interfere with any right that had accrued.
– An invention is not published when the application is. lodged.
.- It is published against every one except the individual lodging the application.
– That publication would not imperil the validity of a second application.
.- If a man lodges in the Patent Office a description of his invention, that is not a publication which prejudices his own interests, but if for any reason his application is refused, or if it falls through because of the nonobservance of conditions, after his specification became open for public information, a subsequent application for a patent for the same invention could not be properly granted, because there would have been prior publication. Therefore, the cases which have been referred to cannot arise.
– If the position is as the honorable senator puts it, why has the Bill been introduced?
.- The lodging of an application is not a publication prejudicing the applicant, but the application may have lapsed through the nonobservance of conditions in respect to time, and the Bill permits of the revival of certain applications. If I applied for a- patent, and the application lapsed through nonobservance of the law, and Senator Best applied subsequently for a patent for the same invention, his application, I submit, would not be entitled to succeed, even if I never tried to revive my application.
– Will the honorable senator read section 54 of the Patents Act?
– That section provides that -
After the acceptance of a complete specification, and until the date of sealing a patent in respect thereof, or the expiration of the time for sealing, the applicant shall have the like privileges and rights as if a patent for the invention had been sealed on the date of the acceptance of the complete specification : . Provided that an applicant shall not be entitled to institute any proceedings for infringement unless and until a patent for the invention has been granted to him.
That provision does not affect my argument. Clause 2 provides that the prescribed time for doing any act or taking any step may be extended, notwithstanding that it may have expired, and without prejudice to the original application. But if, in the meantime, any one has taken advantage of the invention, and benefited by it, that is not to be regarded as an infringement of the patent, giving the applicant the right to damages. Although the protection dates back to the original lodging of the specification, the applicant for the patent will r.ot be entitled to recover damages for the use of his invention during the period intervening between the -lapse of the application, and its revival under the Bill.
– Can a man infringe a patent right which he has legally acquired ?
– If the Crown has granted a patent to any other individual, the original application cannot be revived.
– Then what is the use of the Bill?
.- If I bad applied for a patent, but had not taken all the steps necessary within the prescribed time, I could take advantage of the Bill to revive the application, but not to the prejudice of any one else. A man cannot obtain a patent for anything but an original invention which has not been previously published. Once publication has taken place, even by the inventor, other than in the way prescribed by the law, no valid patent can issue for the invention. Any patent issued for it would, if contested in a Court of law, be found to be worthless. A patent is only primâ facie valuable, and may be proved in a Court of law to be worth nothing, as occurred in connexion with a well-known mining patent. As publication of an invention debars every one except the man who first lodges an application from getting a patent in it, no injustice will be done to any individual, supposing the patent officers exercise due discretion, and bring to bear a knowledge of the patent law on the applications submitted.
– I am obliged to Senator Gould for the light which he has thrown upon this matter. It seemed to me, from what Senator Clemons said, that the Bill might do a considerable amount of injustice, but I am now inclined to think that we shall run little risk of doing injustice in remedying the errors which have been made. I eta not think that the office would accept an application for a patent for an invention in connexion with which an “application had only recently been filed, although it might have lapsed.
– The granting of a patent is entirely discretionary.
– It is absolutely discretionary. The honorable senator did not make much reference to the third clause of the Bill, which deals with errors or omissions on the part of officers of the Department. Although thev have the Crown Law officers at their back to explain the meaning of any vague provision in the law, still, it is proposed by the clause to rectify any administrative mistakes which they may have committed. But it is not proposed to give any remedy to’ an inventor or to the agent of an inventor who, through a misreading of the law, or through having been’ misinformed by the Patent Office, has delayed the lodging of an application. If a remedy is to be applied in one case, let it also be applied in the other. So far as any risk of danger is concerned, I do nol believe that the number of cases would be very large. I know of one or two applications which have been struck out owing to a misinterpretation of the law ; but I do not believe that there would be a large number. I do not think that- injustice would be done to any person if we amended the Bill so as to meet the case of an inventor or an inventor’s, agent who had made an error or omission.
– Does the honorable senator propose to extend the application of clause 3 ?
– If no one else will move in that direction, I shall propose to amend that clause by the omission of the words “on the part of an officer of the Patent Office,” and by limiting its operation to a period of six months’ from the passage of the Bill.
.- I cannot help but concur in the representations which have been made by Senator Clemons as to the great danger which is involved in the enactment of clause 3. I think that the Minister ought to instance cases of great and serious hardship, which justify the adoption of the extreme course which is therein proposed. When a man applies for a patent, the application is referred to the examiner; upon the receipt of his report, an acceptance or non-acceptance is made; and the necessary sealing fees are paid.
*- Or certain amendments may be required.
– Yes. Up to the stage when the sealing fees are paid, there is no publication, and if an application is not accepted, the public are at liberty to come in and search. If, for instance, the application of A is not proceeded with, B has the opportunity of coming in and making an application and a patent is granted to him, because as regards A. no publication has taken -place. The Bill says that it shall” be competent for A’s application to be revived.
– Not after a patent has been granted.
– Suppose that it were revived ?
– The patent to B is good to all intents and purposes; but the Bill provides that A may make an application again; in other words, “revive” his original application.
– His application would be “ knocked out,” because a patent had been granted to B.
– Then the Bill would not do justice, the original application being ‘ ‘ knocked out, ‘ ‘ because of an officer’s default.
– Suppose that B has acted in perfect bona fides, spent perhapshundreds of pounds in the perfection of the invention, in accordance with the patent, and has disposed of it to a company, or otherwise. Surely under those circumstances, it is not contemplated for a moment to allow the original application of A to be revived in order to defeat the patent rights issued to B ?
– No patent would be granted to another applicant unless it were proved that a patent had been wrongly granted to B.
– Although B may have acted with the utmost good faith, sold his patent and received the purchase money, yet under the provisions of this Bill, the patent could be called in.
– Not under this Bill, but under the law as it exists, because provision is made to cancel a patent which has been improperly obtained.
– My honorable friend will see that in the case I put, B’s patent was not improperly obtained.
– Then it would not be cancelled.
– But the Bill provides that it shall be competent for the original application to be revived as from the date on which it was lodged.
– Take a case where no patent” has been granted, and an applicant who had lodged an application out of time wants to revive it. That, I take it, is the class of case which the Bill is intended to meet.
– We are not concerned about a case of that kind at the present moment; but with the defects of the Bill in its present form. It goes on to provide that in the case I have put, B shall be entitled to no damages, although he has acted in the utmost good faith. Surely there must be very strong reasons given to justify such a serious alteration of the law as is proposed.
Sitting suspended from 6.30 to 8 p.m.
– When we adjourned, I was dealing with the point raised by Senator Clemons as to the serious hardships which might be inflicted under the terms of the Bill. It was pointed out that a man might have made an application for a patent, and have subsequently abandoned it. Another man might come along, and in a perfectly legitimate way make application for the abandoned patent, and ultimately have a patent issued to him. I am aware that the position might be met by section41 of the original Act, which reads as follows : -
In the case of all complete specifications, the examiner shallalso-
Ascertain and report whether, to the best of his knowledge, the invention is already patented in the Commonwealth or in any State, or is already the subject of any prior application for a patent in the Commonwealth or in any State;
Report whether to the best of his knowledge the invention is or is not novel.
It might be said that although this Bill purports to revive an application, the fact remains that if a patent had been issued in the meantime, the application could not be proceeded with. I wish, however, to go further, because we have to consider all the hardships that may arise under the Bill. Take the case of an applicant, whom I shall call A, who makes an application for a patent which after being referred to the examiner, and reported to the Commissioner, is ultimately accepted. Three months are permitted to elapse during which public inspection of the specifications may take place, and, if at the end of that period no reasons appear to the contrary, it is competent for the original applicant to have his application duly sealed upon the payment of the necessary fees. In such a case the application is complete. During the three months A might have exercised every reasonable effort to launch his patent, and make it successful, but he, on the other hand, might come to the conclusion that it was not such a remarkably good invention as he originally thought, and might not proceed to secure the sealing of the patent. Suppose that within six months B came along, and asked his lawyer or patent agent to search ‘ the register, and ascertain whether a patent had been issued in regard to the particular invention that had been suggested some few months before. The lawyer would report that a patent had not been issued, and it would be quite competent for B under the present law to set to work to utilize the invention.
– Can the honorable and learned senator mention his authority for that statement?
– I do not think there is any doubt about it. If A did not proceed with his application, it would be competent for any other applicant to utilize the patent.
– To jump it.
– I would not say that.
– Does the honorable and learned senator mean to say that upon the failure of the original inventor to proceed after the specification has been published, any one wouldhave the right to obtain a patent for himself of the same invention ?
– No. I am speaking of a case in which the original applicant fails to complete. After the acceptance of the invention by the Commissioner, it is competent for the original applicant to go on and complete. But if he does not complete, his original privilege at once lapses, and it is competent for any member of the public to come in to take up the patent.
– Not to proceed with the application.
– No, but to utilize the patent.
– Suppose that the honorable and learned senator applied for a patent, and did not proceed, would I have the right to apply for the patent?
– No; but the honorable senator would have a perfect right to use the invention. Suppose that B were an enterprising man, and set to work to build factories, and made a successful use of the invention.
– That is the greatest danger in connexion with Senator Drake’s proposal .
– The action of B would he a perfectly legitimate proceeding under the present law. But under the Bill the original applicant could have his. application revived, and proceed to fake out a patent.
– As from the date of the original application.
– But the power is discretionary. The Commissioner, or, upon appeal from him, the Law Officer, may decide whether or not an application shall be revived.
– In the case that I am now putting, B, with perfect good faith, and relying upon the existing law, has, after searching the register, discovered that the application of the original inventor was not proceeded with, and has therefore lapsed. * He forthwith proceeds to utilize the invention as disclosed bv the specifications. He sets to work, builds his factory, and makes the invention a huge success. Then this Bill is introduced, and A begins to think, “ I can revive my right ; I see that B has made a great success of the invention, and I will ask for a patent for it.”
– Is it likely to be granted under those circumstances?
– That is just the point. Those are the terms of this Bill. What I therefore urge is that it is only fair and reasonable that B should in some way be protected. I admit at once that we cannot disregard the representations of the Minister that several cases of injustice have occurred by reason of the mistakes of the officers. We do not desire that any injustice should be done. But at the same time we have to be cautious that in remedying one injustice we do not create another which is greater. The question is, therefore, how we can deal with both positions ; and what I contend is that the Bill should contain provisions applicable both to clause 2 and to clause 3, giving the same legitimate protection to accrued rights. Then it can be made general. Because everything that has been done under the circumstances I have mentioned has been done in good faith, and in accordance with the existing law ; and it would be unfair for the original proprietor of an invention to step in, having failed in what he had attempted to do, and say, “ Now that the thing has been made a success, I will work it.” It would be unjust for B to have his rights disregarded. Therefore, I say that the Bill should contain the necessary machinery to protect rights which have been acquired in the meantime. If they . are properly protected, probably justice can be done to both sides. My honorable friend, Senator Drake, has emphasized the limited character of clause 3. With the safeguards that I have mentioned, I think that clause 3 might be adopted. It is obvious that if the Commissioner, with his special knowledge and opportunities, and his officers who are supposed to possess special knowledge, have made errors in consequence of the confused or incorrect state of the law, other persons may also be excused for having made mistakes. Consequently, subject to the safeguards to which I have referred, I think it is reasonable to adopt the suggestion of Senator Guthrie, Senator Drake, and others who have spoken, to strike out the words “ on the part of an officer of the Patent Office” with a view to extend clause 3, by making it of a more general character. Then I observe that under clause 3 the powers of the Commissioner can only be exercised on an application being made to him - within one month , after the applicant or party has or might with reasonable diligence have become aware of the error or omission, or in cases where the error or omission occurred before the commencement of this Act, within one month after the commencement of this Act.
That provision is a permanent one, and the effect of it may be that, for an additional month at least, further uncertainty will be added to a man’s patent. I think it desirable for the Senate to consider - as these errors have chiefly occurred by reason of the coming into operation of the Commonwealth patents law, and the confused state of the previous States laws - whether the operation of this clause also should not be confined to six months. I submit these points for the consideration of my honorable friend, Senator Keating. I join with Senator Clemons and others who have spoken, in saying that there is a danger under the Bill in its present form. I consider that these faults are capable of remedy, and that we should take the necessary and proper precautions to avoid further complications.
– I thought that honorable senators would recognise that this Bill was intended to cover only a certain class of cases, and would not have endeavoured to introduce into it other matters which I venture to submit are not quite on all fours with those to which the measure is intended to apply. Senator Clemons has pointed out that it would be well to have something in the nature of an assurance that if the provisons contained in the Bill for applying a remedy to cases that have arisen through the ambiguous construction of section 29 of the principal Act are applied to cases that are known to the Patent Office, no other rights will be prejudiced. I may say frankly that I am not in a position to say that ‘such would be the inevitable result in every case. I am speaking in this qualified way, because I have not had an opportunity since this matter was discussed of communicating personally with the Commissioner of Patents. But i’ think I can give the Senate the assurance that before this Bill was actually framed every one of the cases in question had been thoroughly, examined by the Commissioner, and that the protection that is afforded by this Bill in sub-clause 4 of clause 2 will cover all possible cases of accrued rights that mav have arisen through the lapse of any application.
– Does the honorable senator think that that provision touches accrued rights?
– It does not touch existing vested rights.
– There have been no rights that have accrued in connexion with any lapsed application that this Bill is not intended to deal with. The Bill was introduced into the Legislature some twelve months ago, but because it contained other provisions than those at present embodied in clause 2, it was set aside. It was then thought by many members of another branch of the Legislature, for reasons similar to those which have been urged byhonorable senators in addressing themselves to this Bill, that it was rather dangerous to introduce amending legislation of so general a character as was contained in the measure then submitted to Parliament. In the light of that experience, the Government decided to introduce the present Bill, clause 2 of which empowers the Commissioner to revive lapsed applications when the lapse has occurred through a difference of opinion inside and outside the Patent Office, as to the correct construction of section 29 of the Act. I understand that the utmost regard and attention was given to every case in .which application could be made to the Commissioner , to exercise his power to revive such an application. What I am saving now in response to the criticism of the Bill by honorable senators, I am saying for a double purpose. I had hoped that the debate would not be as long as it has been ; but perhaps there is more justification for my hope that what I am about to say will shorten the discussion in Committee. This proposal, with others, was embodied in a Bill introduced in another place twelve months ago, and in view of the criticism to which the measure generally was subjected, it was decided to introduce this Bill. It was thought that the actual facts in regard to clause 2 were such as would commend it to both Houses of the Legislature without much argument on the part of the Government. I would point out that in any case the power given to the Commissioner is that of determining applications of this character, and that if such a case as that which Senator Clemons suggested arose - if the revival of an application that had lapsed, owing to a misconstruction of section 29 would bring the original applicant into competition with any other person - it would be for the Commissioner, with all the facts before him, and the records of his office to guide him, to exercise his discretionary power in’ dealing with .the application. As to the criticism offered by Senator Drake, who was supported by Senator Guthrie, I think that Senator Clemons pointed out fairly effectively that whatever danger might attend the passing of clause 2, as proposed by the Government, would be considerably increased in the case of an extension of clause 3 as proposed by them. Senator Best has anticipated another point which I intended to bring under the notice of the Senate. Not only might other persons who had relations with the Patent Office be affected by power being given to the Commissioner to revive applications that had lapsed through the neglect, fault, omission, or error of the individual, but members of the general public might be considerably prejudiced and damaged. As Senator Best pointed out, a man might satisfy himself by examining the records that, although an application had been made for a patent in respect of an alleged invention, it had not been proceeded with. It might have lapsed, because the applicant was short of funds, because he had syndicated his invention, and his co-partners would not proceed with it, or because he was advised that it was not worth prosecuting. The individual making the search might bond fide believe that it was not intended to go on with the application, and after he had risked his capital and his enterprise in using that invention, and had demonstrated to the public its utility and advantage, the applicant might come forward, and say to the Commissioner, “ I made a mistake about that application of mine, and wish to revive it.” In that way we should open the door to the general public being damaged in various ways. The adoption of such a proposal would lead to utter confusion in the administration of the Department. No one would know when an application had been allowed to lapse intentionally or by inadvertence, or whether it was or was not likely to be revived. Quite different is the case where the error, omission, or irregularity is attributable to our own officers, and it is only with such cases that the clause deals.
– Surely it is not different.
– I listened with a great deal of interest to the remarks made by Senator Best, and I think that he fell into a misconception when he reasoned that if it were right to empower the Commissioner to revive applications for patents that had lapsed by reason of error or irregularity in the office there was still greater cause for reviving applications that had lapsed owing to error on the part of the applicant. Why so? We are not proposing to grant power to revive applications for the benefit of the officers. We propose that this power shall be granted for the Benefit of applicants. Where applications have lapsed through inadvertence, or omission on the part of the applicant, he is himself to blame.
– No. The lapsing of an application might be largely the result of the confused condition df the law.
– No one would assume that we are proposing to grant this power of revival for the benefit of the officers of the Patents Department. What benefit would the Department derive by the revival of these rights? In submitting clause 2, what we say, and say fairly, I think, is, in effect, this : “ There has been a misconception of section 29, which we admit is ambiguous. It empowered persons generally to apply for patents after the Commissioner was appointed, but before the law came into force, and some persons thought that the sixteen months within which the sealing should take place should date from the proclamation of the Act, and not from the date of their application. In view of. “the fact that we recognise that section 29 is reasonably capable of two constructions, we will place the matter beyond doubt. For the next six months we will allow any one prejudiced by the am biguous wording of that section to have his rights revived.” In clause 3, we deal only with cases in which, owing to error or omission on the part of the Department,, rights have been or may be prejudiced. We empower the Commissioner to revive applications,! to extend the time for doing the ‘act, or permitting the act to be done, and to proceed as if the error or omission had not occurred. We are now asked by some honorable senators to apply to this clause as to the previous one a limitation of six months. Why should we do so? The two classes of cases with which they deal are entirely different. Under clause 2 we set* at rest for all time the construction of section 29, but we cannot hope to remove for all time the possibility of officers of this or any other Department making a mistake. If it is right for us to say that where an applicant’s rights are in danger of being lost to him through error, omission, or neglect on the part of the Department, that danger shall be removed for the next six months, it is right that we should give the Commissioner power to remove such cases of hardship whenever they occur. This is merely a provision which corresponds’ with others of a similar nature in measures which deal with land transfer and so forth in the various States. If officers of the Lands Departments make errors the individuals who are affected have their rights preserved. The object of clause 3 is intended to cover all omissions on the part of our own officers for all time, whereas; clause 2 deals with a certain class of cases which cannot recur. If persons dp not take advantage of the remedial provision in six months, they cannot do so afterwards ; and there must be some limit of time, though of course it is a question for the “Committeewhether the term mentioned is a fair one. In regard to clause 3, however, I canappeal to honorable senators’ sense of fairness and justice to say that wherever a Department pf the Commonwealth makes anerror the particular individual affected shall” not have his right prejudiced, and that theprotection shall operate, not merely for six months, but for all time. It must be remembered that the individual is allowed’ only a month in which to apply for theremedy after his discovery of the error; but that remedy should be available for twenty years hence if necessary. There isa broad distinction between the two clauses.
I hope the remarks 1 make now will, as 1 said before, to some extent shorten discussion in Committee. It was due to the Senate that 1 should indicate my views on the points which have been raised in the course of the debate, because when we get into Committee, if an amendment of the character indicated be submitted, I do not want it said that the Government did not intimate they would not be prepared to accept it.
– Does not the Minister think that the safeguard I suggest is necessary as to accrued rights under the circumstances ?
– I take it that Senator Best refers to rights accruing to any member of the public as to the use of the invention?
– That,I think, is provided for in sub-clause 6 of clause 3, and sub-clause 4 of clause 2.
– Sub-clause 4 of clause 2 does not touch the point.
– The meaning simply is that if A, under the revived rights, gets a new patent, he shall have no right to damages.
– What rights would Senator Best give to a member of the public who had been using the invention?
– None necessarily; but there would be a general reason why A should not get the patent, because he had abandoned it.
– There might be an instance in which A took steps, under either clause 2 or clause 3, to obtain a revival of his application, resulting eventually in the intention of the Commissioner to grant a patent. It might be that in the meantime B had, as an ordinary member of the public, utilized the invention, not knowing that A intended to continue his application, and the patent, when granted, might, under the circumstances, be subject to certain limitations.
– That is what I am urging.
– I suggest that this is a matter entirely for consideration in Committee. I ask honorable senators not to complicate the Bill by adopting the amendment suggested by Senator Drake and supported by Senator Guthrie.
– That amendment would be perfectly harmless, with the safeguard I propose.
– The suggested amendment would not make the Bill more complicated than it is now.
– I think it would. We take the responsibility of rectifying our own errors, but we are certainly not going to prejudice the general public, and numerous trade interests, by allowing persons to declare that they have made a mistake, and, on that ground, revive applications which have lapsed for a considerable time. Who would determine whether there had really been an error, or whether it was a matter of intention? To adopt the suggestion would lead to great conf usion inthe Patent Office, and result in considerable damage to the general public. I trust that honorable senators will recognise that the suggested amendments are quite dissociated from the cases with which the Bill is intended to deal, and will endeavour to find another remedy which will not embarrass the passing into law of this Bill.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause1 agreed to.
Clause 2 -
TheCommissioner, or on appeal from him the Law Officer, may, in relation to any application for a patent made under section twenty-nine of the Patents Act 1903 : -
.- I listened attentively to Senator Keating; but all his arguments against the amendment I suggest might be met by providing some safeguard as to the exercise of the powers of the Commissioner. Without expressing a positive opinion as to the actual wording of such a proviso, I think that what is necessary is to secure that the powers conferred on the Commissionershall not be exercised in any way to the detriment of any other applicant or of thepublic! That is to sav. when an application is made to extend the time, or to revive an application on account of any mistake, the first question for the Commissioner to consider will be whether the granting of it would prejudice any other application or the public; and the power would not be exercised until he was satisfied that it would not do any harm.
– How could the Commissioner refuse?
– Because the power is entirely permissive, The Commissioner knows all the applications that are in the office, and would be able to judge whether it would be to the detriment of another applicant to allow the time to be extended and so forth in any particular case.
– But even if it were to the detriment of another applicant, what then ?
– Then the application would have no effect. The amendment which I suggest might be extended to provide that the power should not in any way affect accrued rights.
– It would require most complicated and detailed provisions to carry out the intention of the honorable senator.
– I see nothing more complicated in an application for a patent than in an application for land, or for grazing rights, under a Land Act. I do not think it would be contended that in an application for either leasehold or freehold land there would be any great danger in allowing the Commissioner of Lands to extend the time or revive an application, if it were made perfectly clear that neither must, be done to the detriment of any_ other applicant. Suppose two applicants lodge their applications practically at the same time, that an extension of time is granted to one of them, and it then turns out that the other had an equal right, the application of the first would be successful. It it turned on the particular point on which the Commissioner had allowed the extension of time, the concession granted would be held to be nugatory if it had the effect of ousting the second man. I ask that the concession should be granted only where it can prejudice no applicant.
Senator Lt.-Col. GOULD (New South Wales’) [“8.4.1]. - I see no need to apprehend the difficulty to which Senator Drake has referred. It is perfectly clear that the true and first inventor is the person entitled to a patent. The true and first inventor is not necessarily the first discoverer. If a man discovers an invention, and his discovery is not divulged, and another acting independently makes the same discovery, and makes an application for a patent, he will be granted the patent as the true and first inventor. If two persons applied together for a patent, and one made a default in the matter of time, the other would obtain the patent, and the first would be entirely out of court. In such a case, the examiner would never dream of reviving the first man’s application, and if he did, it would only be to refuse it because a patent had already been granted for the invention. If a man makes an application for a patent, and is in default in regard to a matter of time, no injustice should be done him. His application might be revived, and a patent granted to him if it was proved that he was the true and first inventor of the invention for which the patent is asked.
– I think that in the Act we did not adopt the term “ true and first inventor.” but the term “actual inventor.”
– That is so.
– If two persons lodged an application for a patent for the same invention, at the same time, it would be a matter for the examiner to determine what course he should take, but if one made any default in regard to time, and no patent were granted to the other, surely it would be fair to permit the first man to revive his application? T think we might very well leave the clause as it stands. The greatest safeguard will be that the men in charge of the Patent Office will have given some evidence of their competency and ability to deal with matters of this kind, and we must trust to the officer in charge of the Department, in dealing with all applications that come before him, to exercise not only prudence and common sense, but also to be guided by the principles laid down in the numerous decisions which have already been given in connexion with applications for patents.
– In the belief that it will facilitate discussion, I should like at this stage to indicate to Senator Keating an amendment which need not necessarily be introduced at the end of the clause, and which might perhaps be better dealt with at the end of the Bill. I think we might insert a proviso to this effect -
Provided always that no application under this Bill shall be revived if the Commissioner is satisfied that the invention is already patented in the Commonwealth, or that the application therefor has been properly lodged prior to the request for such revival.
I deal in that with two possible contingencies. One is that of a subsequent applicant having obtained a patent in the interval, owing to the default of a previous applicant, or of the officers, which prevented him from obtaining a patent. On considering the matter further, I recognise that another hardship is possible. The second applicant might not have acquired a patent, but might have carried his application to a step nearly reaching finalitv. He might in the interval have lodged a bond fide application for a patent, although when the Bill becomes law a patent might not have been issued to him. That is a case of possible hardship which I think should also be provided for. 1 am inclined to think that the amendment I have suggested would cover such a case. I should like some indication of Senator Keating’s willingness to accept the amendment, and to know whether he thinks it would be advisable to attach it to the end of this clause only, or also to clause 3.
– Or to insert it as a new clause?
– It might be inserted as a new clause or as a proviso at the end of the Bill. If such an amendment were inserted we should have provided, so far as it is possible for the Patent Office to do so, for any possible hardship that might accrue to a man who had acquired a patent, or had taken steps to acquire a patent, and had put in a bond fide application for the purpose, before any request had been made for a renewal or revival of a previous application. I see no particular reason to object to clause 2, but I point out that there is no limit to the extension of time which might be prescribed under paragraph a of sub-clause1 . We have limited the powers of the applicant, who must do something within six months; but we impose no limitation on the Commissioner as to the extension of time he may prescribe for doing any act or taking any step. I think we might very well prescribe a limit in his case. Sub-clause 4 as it stands merely provides that if a person under the power of revival acquires a patent he shall not be entitled to obtain damages against any one else, who in the interval prior to the granting of the patent may have infringed it. The sub-clause might possibly have dealt with the ques tion of an injunction, but it does not do so. However, I do not think that of much importance.
.- I largely agree with the tenor of the proposal, but it hardly goes far enough. Perhaps it is wise to specifically provide for the contingency that a patent may be issued subsequently to the abandonment of the application, though probably section 41 of the Patents Act would cover that. The second contingency mentioned, that a subsequent application may be pending at the time of the passing of this Bill, has also to be provided for. A third contingency for which provision should be made, is the accrual of rights in consequence of the lapse of the original application.
– What rights?
– I refer to the case of which I spoke onthe second reading. Suppose that A fails to complete his application, and after a lapse of three months B, that is, any member of the public, comes along in a bond fide manner, and, having looked at the invention, applies it to his own business, and by the expenditure of capital and enterprise, makes it a success.
– He would be safe in doing so.
– Yes, under the law as itstands; but the Bill provides for the revival of A’s application, and if A ‘obtains a patent, B can then be stopped from continuing to use the invention, though he will not be liable for damages for having used it. I emphasize the point, because I agree with Senators Drake and Guthrie that if a proviso is added for the protection of accrued rights, such, as those to which I have referred, we may safely extend the provisions of clause 3 to omissions or errors, whether made by the Patent Office or bv applicants.
– According to Senator Best, if under the operation of this measure A acquires a patent, and B, who has been using the patented invention in his business, continues to so use it, B can be restrained from doing so. My answer to that contention is that no action lies under the patent law agains a man who can prove in Court that he was using an invention or process in his business prior to the granting of a patent for it.
– No one doubts that. The case which I put was a different one.
– Senator Best spoke of B’s use of the invention as subsequent to the lodging of A’s application, B having learnt of it from the records, and having used it on hearing that A’s application had lapsed.
– Yes. So soon as the original application is revived, B can be stopped.
– Why ?
– Because the patent dates back to the date of the original application.
– Perhaps there is something in the honorable senator’s point, though I did not quite understand it at the time. I thought that he was contending that a patentee could prevent a man who had been bond fide using his invention or process prior to the patenting from continuing to do so, and I was surprised at hearing such a statement from him. No doubt if we can cover the contingency to which he has referred, it would be well to do so.
.- I feel sure that the Government will be able to draft a new clause preventing injustice frombeing done by the exercise of this power, and I therefore wish to make the clause general. I move -
That the words “ section twenty-nine of” be left out.
– I do not propose to repeat the arguments I used when I was replying to the debate on the second reading ; but I would ask honorable senators to recollect that the clause deals with a particular class of cases, and, whatever they may propose to do with the other clause, to let that one pass as it stands,so far as its principle is concerned, because such cases cannot recur. Section 29 of the Act is ambiguous as to when the period of six months shall commence to run. . It provided that an application for a patent might be lodged at any time after the appointment of a Commissioner, and before the Act came into operation. The first duty of the Commissioner when he was appointed was to prepare his regulations, establish his Department, and get all the machinery into working order, and when he was ready the Government caused the Governor-General to issue a proclamation to bring the Act into force. Prior to that time certain persons,by virtue of a provision to that effect, were’ able to apply for patents. There was a period of sixteen months in which their patents had to be sealed. The Patent Office held that that period commenced at the lodging of the application. Some applicants considered that in their instance it dated from the time when the Act came into force. Doubts have been expressed, and therefore this clause is introduced. Such -cases cannot recur.
– If the amendment were made the Bill might as well be dropped.
– Exactly. If the amendment were adopted, and this remedial provision were extended to all cases of error and omission, probably we should have to bring in another measure, one-third as large as the Patents Act. to provide the necessary machinery to give effect to revived applications, and due regard to every particular right which might be affectedby such revival.
Clause agreed to.
Clause 3 -
Where owing to any error or omission 011 the part of an officer of the Patent Office any application for a patent or any proceeding in relation thereto has lapsed, or any act or step in relation thereto required to be done or taken within a certain time has not been so doneor taken, theCommissioner may -
.- I move -
That the words “ on the part of an officer of the Patent Office “ be left out.
I think that when a proper safeguard is inserted errors and omissions can be corrected in the way I desire.
– I take the same view as does Senator Drake, provided that there is a provision that existing applications and accrued rights shall be properly protected. Under such circumstances, I do not think that the Minister can offer any reasonable objection to the proposition that errors or omissions on the part of applicants as well as officers of the Department should be fairly considered, and that any injustice which i.f patent to the Commissioner should be at once remedied. In the interests of clauses 2 and 3 - that is, the whole Bill - it is desirable that a safeguard such as hasbeen indicated should be inserted.
– In my speech on the second reading of the Bill, I expressed the view that these words ought to be omitted. I am very glad that the legal members of the Committee have come to an agreement as to the necessity for a provision to safeguard the general public, and the Patent Office. If this amendment be agreed to, I shall assist them to put in such a safeguard at the end of the Bill.
– I hope that the Minister will resist the amendment. Anxious as I am to see the Bill pass, I should consider that if the amendment were made, it would be attended with great risk.
– Not with a proviso.
– Yes; even on the assumption that we put in a proviso such as I have indicated, or one which would have a similar effect. The construction of a section of the Patents Act has led to the introduction of this clause. I have not the slightest doubt that, in discovering how difficult it was to work under that section, other difficulties, perhaps incidental’ to too hurried an effort to bring the Patents Act into operation, were also discovered. I can quite conceive that, confronted as the Patent Office was with many difficulties of an intricate nature, other errors, though possibly not of much importance, have arisen. I can quite understand the Government, after resolving to make provision to cure the errors resulting from the construction of section 29 of the Act, also deciding to submit a clause dealing with errors which have occurred in some other way. That is, I think, a sound position for the Government to take up. But Senator Guthrie wishes to give every discontented applicant for a patent the right to come along and say that, owing to its intricate nature, he was unable to understand the meaning of the Act, and that thereby he had suffered some damage. I do not think it is fair to argue that, because the officers in the Patent Office have had to admit that thev have made one or two errors, any applicants should be entitled to put forward the plea. “ We could not interpret the Act. How do you expect us to interpret the Act when the officers could not?”
– - And a very good argument, too.
– -If it is a good argument in this case, surely it would be a good argument to use in regard to almost every Bill.
– If injustice is being done.
– When we have had an admission by public officers’ that they have inadvertently made an error in the interpretation of an Act, we have not listened to the man who Has failed to carry out its conditions, and has asked us to waive them in his favour. That is exactly what Senator Guthrie is asking us to do in the case of certain applicants for patents.
– Whose errors may have been committed on the advice of the Patent Office.
– In framing our legislation, we, in order to accomplish our object, ‘have to lav down conditions which are often elaborate and difficult to follow, but under no circumstances would we listen to a man who came along and said. “ Pass a Bill to enable me to get into the same position as I would have been in if I had absolutely complied with the conditions of the Act.” That would be a most dangerous principle to introduce into our legislation.. I deprecate any attempt being made in a measure of this kind to afford to individuals relief such as that suggested.- I hope that the amendment will be defeated, and that the suggestion that I have made will be adopted by the Minister.
– I intend to oppose the amendment, and I. trust that I shall have the support of the Senate. It is fallacious to argue that because we are now seeking to remedy errors or defects in the administration of the officers of the Department, who may not have thoroughly understood the working of the Act in the first instance, we should a(pply the same procedure to errors made by applicants. As was pointed out to Senator Clemons, we are not proposing to remedy the errors for the sake of the officers, but because they are likely to prejudice the public. How could we invite members of the public to come forward, and state that they had committed mistakes, and to make fresh applications? What check should we have upon them? The mistakes made by applicants, and those committed bv officers of the Department, stand entirely apart. Senator Clemons proposes that any revival of an application under the Bill shall not prejudice any patent _ right that may be secured by an individual, and that the original application shall not be revived if any other application for a patent for the same invention has been properly lodged. I see some objection to such an amendment. First of all; if. an application has been completed in respect of an invention it will be unnecessary to revive the original application. If, on the other hand, after an application for the revival of the original application is received, it is found that an application for the patent has been properly lodged, but has not been caried to a termination, I doubt whether we should be perfectly right in declaring the original applicant to be out of court. We have to consider whether the proper revival of ah application should not as between the original and the subsequent applicant determine the dispute. So far as the amendment now before us is concerned, I would ask the Committee to resist it.
– Is the Minister going to resist the proposed safeguard?
– We should not require any safeguard if the amendment were not made. Let us take a concrete ease. If we eliminate the words as proposed, the clause will have a general application. It is not a temporary provision in the same sense as the previous one. If an applicant wants his application revived the Commissioner would ask him for his reasons. He would then explain that owing to an error or omission on his part he did not lodge his specification within a certain time. The Commissioner would not know whether it was an error or an omission. It might be that those who were financing the applicant had not come up to the mark, or that he had been advised that there was nothing in the invention. Another individual might say, “ I put in my specification, but found that it was incorrect, and, although I had time within which to amend it, I did not do so - that was an error on my part.” Another individual might say that as the result of an error or omission he had not lodged his application at all. Where could we stop? If we allowed any individual to say that he had not proceeded, because of an error or an omission on his part, who would determine really what was a bona fide error or a bond fide omission on the part of an individual. On the other hand, we propose to remedy what would be the effects of our own errors or omissions as far as the (public are concerned. We can absolutely trace these, because the moment that an application is lodged everything that is done -by us in respect to it is recorded. But in order to ascertain whether any default on the part of an applicant was due to error, omission, or intention, we should have to examine the applicant’s mind. Apart from that, not a single member of the public would know whether or not these lapsed applications were intended to be revived. There would be no security for the class of persons referred to by Senator Best, who might possibly utilize an invention, the application in respect to which had lapsed. Then again, the Department would also be subjected to the possibility of the revival of an application that had been intentionally abandoned. Chaos and confusion would be brought about so far as the administration was concerned, and the element of uncertainty and doubt would be introduced so far as the public were affected. We must remember that whilst we might enable a few individuals to rectify bond fide omissions or errors, and to establish rights which they may have acquired, we should rob the public of the security now afforded to them.
– But the Commissioner would exercise his discretion.
– Owing to that very fact, the doubt and uncertainty in the minds of the general public would be intensified. I ask honorable senators to balance the advantages and disadvantages of such a proposal. I contend that this is not the proper place to introduce the provision. There was a considerable amount of work in preparing the machinery of this great Department, and consideration had to be given to States legislation. Naturally some errors crept in. We do not consider that the Patents Department, any more than any other Department, is infallible. At any time an officer may make an error. In this Bill we provide that if such an error1 does occur in the administration of the Department, the individual in respect of whose application the error is made shall not be prejudiced. But is a Bill intended for that purpose the proper place in which to introduce a pro-, vision to the effect that persons who, through their own negligence or inattention, have not complied with the law, shall be allowed to come in at any time and have their rights safeguarded, to the great confusion of the public and of the Department, and, perhaps, also to the prejudice of other persons who are concerned?
– The whole argument of the Minister has shown that when the Commonwealth took over the subject of patents from the States, there was a congestion of business in the Department, and that the officers themselves were not in a position to interpret the law. If such was the case with men trained to deal with patents, how much more difficult must it have been for applicants for patents to proceed under the new legislation? No doubt mistakes have occurred, and I consider that if it be right to allow the officers of the Department to rectify errors other persons should have the same opportunity. I merely propose that this power of rectifying errors by applicants shall remain open for six months after the passing of this measure, whereas the Minister proposes that for all time the officers shall have the right to rectify mistakes. I ask the Committee to support me in securing an extension of this right.
– I am sorry that the Minister has not agreed to the safeguard that I suggested. I am not wedded to any particular form of words, but I am strongly of opinion that a safeguard in similar language ought to be inserted. While I am largely in accord with the Minister in the object that he has in view, I am forced to the conclusion, by his own admission, that he also recognises the possibilities that may accrue if such a safeguard is not inserted. We shall be deliberately, with our eyes open, endeavouring to perpetrate an injustice upon some members of the community. We “shall be saying to persons who may, or may not, put in an application in a perfectly bond fide way after original applicantshave failed to work inventions, “ Although youhave complied with the law as it exists in every possible respect, we are going to take such’ steps as will deprive you of your right.” There may be a hundred such persons in the community.
– I am anxious to consider the honorable senator’s amendment in some shape. What I said was, however, that part of it was unnecessary, and that, as to the other part, I did not know why we should prefer one class of applicants to another.
– I thinkwe are bound to have regard to the rights of applicants who have complied with the law rigorously and carefully. How can we set them aside? We cannot support our own officers in errors of omission and delinquencies to such an extent as to do an act of injustice to people who have respected the law as they found it.
– Will the honorable senator submit his amendment in the form that I have suggested to him?
– That form reads-
No application shall be revived under this Act if the Commissioner is satisfied that the invention is already patented in Australia, or that another application for the same invention has been lodged, and will be unfairly prejudiced.
I have no objection to that.
– There is already an amendment before the Chair, and it is not competent to deal with another at this stage.
– To comply with the Standing Orders, I will call the suggested amendment that I have read a “ suggested improvement.” We are dealing with it because it will facilitate discussion. If Senator Keating prefers these words they will suit me, since they embody the spirit of my amendment. I shall join with him in trying to prevent what I think would be a most dangerous innovation in this clause.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority … …9
Question so resolved in the negative.
Clause agreed to.
Amendment (by Senator Clemons) agreed to -
That the following new clause be inserted : - “ 4. No application shall be revived under this Act if the Commissioner is satisfied that the invention is already patented in Australia, or that another application for the same invention has been lodged, and will be unfairly prejudiced.”
Bill reported with an amendment.
Standing Orders suspended. Report adopted.
Motion (by Senator Keating) proposed -
That the Bill be now read a third time.
– I do not wish to delay the passing of this Bill, but as we have amended it, I should like to ask the Minister whether he thinks it desirable to have it immediately read a third time, and sent away?
– Another place will have to consider the amendment. If it had been unamended I should not have moved this motion to-night.
- Senator Playford to-day declined to deal similarly with another Bill.
– That was because there were a number of amendments in the Bill involving additional printing.
Question resolved in the affirmative.
Bill read a third time.
– I move -
That the Bill be now read a second time.
The South African Colonies, the Cape of Good Hope, Natal, Orange River, Transvaal, and South! Rhodesia, are all included in one Customs Union Convention, under which they agree that there shall be one uniform Tariff, and that there shall be a rebate on goods the growth, produce, or manufacture of the United Kingdom and reciprocating British Colonies. On the one hand, the Convention levies duties against the outside world, and, on the other hand, they give a preference first to Great Britain, and, secondly, to any British Colony, Protectorate, or Possession which may reciprocate. Article 4 of the South African Customs Union provides -
A rebate similar to that for which provision is made in the last preceding article -
I may say that article 3 provides that a rebate on British goods - shall be granted in like manner and under ljke provisions to goods and articles the growth, produce, or manufacture of any British Colony, Protectorate, or Possession, granting equivalent reciprocal privileges to the Colonies and Territories belonging to Union, provided that no such rebate snail be granted in the case of any particular Colony, Protectorate, or Possession until after a date to be mutually agreed upon and publicly notified by the parties to this Convention.
The date was agreed upon, and notification was given, and the Commonwealth Government, in consequence, entered into negotiations with the South African Colonies, with the object of securing the preference. Communications have been passing between the Commonwealth and the Customs Union for some considerable time, and there has’ been prepared a list of articles in regard to which preference shall be allowed on either side. That preference does not extend to the whole of the goods included in the arrangement with Great Britain; but honorable senators have had circulated amongst them a paper showing the extent of the present trade between the two countries, and the preference proposed to be given. The paper gives details of the imports to Australia from South Africa, and the exports to South Africa from Australia, for the year 1905, and also the imports to South Africa from all sources for the six months ending 31st December, 1905. It will be seen that the imports to Australia from South Africain 1905 amounted to only £3,017, while the exports to South Africa from Australia amounted to £2,039,946, and from all sources for the six months amounted to , £4,482,000, or, in round figures, . £9,000,000 for the whole year. The population of the Colonies embraced by the Convention consists of about 1,000,000 whites, and 5,000,000 coloured people. Australia is about the largest exporter amongst the British Possessions to South Africa, our rivals being, first, the Argentine, and, secondly, Canada. As an indication of the large trade we do with South Africa, I may direct attention to the first item dealt with, namely, butter. Of this commoditv we sent to South Africa £207,000 worth in 1905, as compared with an importation for six months of £261,906 worth from all sources. I am not sure, but I think that our principal competitor in this line is Canada. The duty on butter in Australia is 3d. per lb., and it is proposed to give a preference to South Africa of 25 per cent. of the present rate or¼d. per lb. The duty on butter in South Africa is2¼d. per lb., and the preference offered by the South African Customs Union to Australia is¼d. per lb. Glancing down the list, we see that another large item of export from Australia to South Africa is fodder, the value of which in 1905 was £31,730. as compared with an importation of £13,730 from all sources for the six months, or £27,000 odd for the year. Further down the list we see that there was sent from South Australia to South Africa £17,056 worth of bran in 1905, together with £310,000 worth of flour, and £680,926 worth of wheat. On bran Australia is offered a preference from South Africa of 2d. per cental, on flour 3d. per cental, and on wheat 2d. per cental. Of frozen beef Australia in 1905 sent £235,562 worth to South Africa, and in this trade we have to meet the competition of Argentina. Bacon and hams were sent to the extent of only £1,810 worth, but Canada exports large quantities to South Africa. There is no duty on fresh pork in South Africa, and, in order to avoid the duty of 3d. per lb. on bacon and hams, Canada sends frozen pork which is cured after its arrival. Of frozen mutton we exported to South Africa . £236,250 worth; and so the items go on, down to undressed timber, of which we sent , £154,200 worth. t do not know that I need say anything more to induce honorable senators to adopt the arrangement which has been arrived at. The South African Colonies have agreed to it. The only item on which they get an advantage over us is, I think, ostrich feathers. They do send a few pounds worth of those articles to Australia. When honorable senators consider that our trade with them is so large and their trade with us is so small, that the preference they offer to give us is fairly substantial, and will help us in competing with our trade rivals, especially in the Argentine, I think I need not say anv more to induce them to cheerfully pass the Bill.
– It is not often that the Senate, or, indeed, any House of Parliament, has had a measure of this importance thrown at its head in a speech of five minutes or less. The Bill before us is really of very much greater importance than any one , could imagine from the utterance of the Minister of Defence. There are many details and peculiarities about the proposal at which honorable senators could not even guess from the speech which has been delivered by the honorable senator. In the first place, he. told us that the Colonies with whom we’ are asked to negotiate number five, Cape Colony, Natal, the Orange River Colony, the Transvaal, and Southern Rhodesia; but according to the South African YearBook, there are in addition the Territory of Basutoland, and the Bechuanaland Protectorate.
– They are not mentioned in the Convention, and I have the document before me.
– I have the whole of the Convention before me, and I think it will be found that the South African Customs Union consists of the Colonies, States, or Protectorates that I have named. It is desirable that honorable senators should understand the difference between these Possessions of the British Crown in South Africa, and the Possessions of the British Crown in Australasia known as the Commonwealth of Australia. There is no federation in South Africa at present, and the Customs Union is only a very loose union, and one from which I believe any one of the contracting parties may at any time depart with very little notice.
– Twelve months’ notice.
– I should like to direct attention to the fact that the large exports to which Senator Playford has referred as being sent from Australia to South Africa may be described as war exports. The war in South Africa is over, but that country has not quite yet recovered from its effects, and before the war broke out our trade with South Africa was ai most non-existent. There is no one whc has paid any attention to the figures of trade, and has studied the course of business and production in South Africa, who will not come to the conclusion that these exports from Australia to that country are likely very speedily almost to cease, and the goods we have been accustomed to send there will have to travel further on to the United Kingdom.
– Might it not be assumed in regard to certain items that the war opened up a trade which will continue ?
– The items of export to which Senator Playford has referred are nearly, all items of agricultural production, and it needs only a certain amount of time when South Africa will be producing almost the whole quantity of those articles that she consumes.
– From personal knowledge I am able to say that the Argentine is competing in the frozen meat and butter trade with Australia in South Africa.
– We all know that. I direct the attention of honorable senators to Article 13 of the Customs Union agreement, which reads -
The collection of the Customs duty’ imposed under clause 1 of the foregoing Tariff upon fresh, chilled, and frozen meat, and on animals for slaughter shall be suspended until such time as a majority of the contracting parties to the Convention agree that such suspension shall be removed.”
There are several Articles of that character in the Convention.
– This is all agreed to.
– That may be quite true, but the duties on these articles might be suspended not necessarily by the whole of the Colonies in the Customs Union, but by individual Colonies that are parties to the Convention. I have here a cable message, which was received in July last from London, and this is what it says -
In commenting on the action of the Governments of Natal and the Transvaal in suspending the duties on wheat and flour, the Cape press remarks that this action will not affect Cape Colony much since it cannot grow enough wheat for its own consumption.
Nevertheless it is remarked this power of suspension strains the loyalty ofl other parties to the South African Customs Union.
Pending Federation, it is added, Customs questions are so difficult as to create a demand for independent action.
– We have nothing to do with that. So long as we get these preferences we need not trouble about their internal affairs.
– The matter is one which concerns us because, according to that cablegram, I take it that the duty on flour, to which reference has been made as such a large article of export from Australia to South Africa, is suspended in the main centres of South African consumption - the Transvaal and Natal. I take it that no preference will actually exist in respect of that article of export.
– Then we shall enjoy a preference in respect of a great many other articles. The question is whether the honorable senator will say that he is going to vote against this Bill when his political colleagues in another place said that they thought it “too good to be true “ ?
– If the Minister would not interrupt, we should get on more quickly.
– The Minister has not presented to the Senate a full and complete statement of all the facts and circumstances surrounding this measure.
– Nor was such a statement presented elsewhere.
– Before I sit down I shall present facts and statements which will very much surprise honorable senators, and may lead to a very different feeling in regard to this proposal. There is a very large number of very small preferences provided for. Perhaps I had better, first of all, point out that it has been generally surmised that the proposal involves all-round reductions. The Minister mighty cease his conversation while I am addressing him.
– If the honorable senator is not going to oppose the Bill there is no great reason why I should listen to him.
– But I am opposing the Bill heart and soul.
– Then I shall listen to the honorable senator.
– It is generally affirmed that on both sides there are considerable reductions, but it is only an arrangement on either side. In 1903 the South African Customs Union had one Tariff, in regard to which certain reductions were made, so far as exports from the mother country were concerned. Now, however, it has two Tariffs, and has applied to us the Tariff formerly in force applying to countries outside the Empire a higher Tariff, known as the general Tariff. The South African arrangement is. therefore, different from that of Canada, where there is but one Tariff, a concession being offered to other parts of the Empire.
– This difference does not matter to us.
– If the agreement had been made in respect of the Tariff of 1903, we should have obtained reductions on the rates then in force. Now higher rates are in force.
– But in any case we get a preference.
– One of the provisions of the Canadian law is that reductions shall not apply in respect to wines, malt liquor, spirits, spirituous liquors, liquid medicines, and other articles containing alcohol, tobacco, cigars and cigarettes. In other words, the Canadians do not make any allowance in regard to intoxicants or narcotics, which they look upon as prime articles of revenue. The Deakin Government, however, has made a very singular and significant departure from this praiseworthy and desirable arrangement. Whilst our Customs duty on spirits is 14s., it is. proposed to admit spirits from South Africa at our Excise rate, plus z per cent., so that pure Cape brandy can be imported into Australia on payment of 10s. 3d. a gallon.
– Seeing that they import to supply their own wants, the people of South Africa are not likely to export very much spirit to us.
– The interjection shows how little the Minister knows of the subject. Cape Colony is a very large producer of both wines and spirits, her production of brandy in 1898 being 1,365,000 gallons.
– I am referring to the figures for 1905.
– Cape Colonywas not likely to send spirits to Australia so long as she had no encouragement to do so. But now the distillers of that country are put on the same footing as the distillers of Australia, which is an advantage obtained by South Africa about which the honorable senator was silent. Seeing that they are being given a protection equal to several hundreds per cent, on the cost of some of their goods, we might well have expected to be informed of it.
– I thought honorable senators had read all about the subject. The people of South Africa do not supply all their own wants.
– The average production of brandy in Cape Colony during a period of three years was about 1,000,000 gallons. Of course, the war interfered greatly with production of all sorts in South Africa, and things have not yet become normal again there. In 1898 the production of wine in Cape Colony was 4,800,000 gallons, and in 1899, about the same, while in 1900 it exceeded 4,000,000 gallons. In 1901 the export of wine was 100,000 gallons, and in 1902, 84,000 gallons. We propose to allow a rebate of no less than 5s. a gallon in respect of wines in bottles, the duty being reduced from 8s. to 3s. In regard to wines other than in bottle, the reduction is from 6s. to 2s. These reductions are enormous, and 1 submit that they are calculated to gradually interfere with our revenue from wine as the other arrangement to which I referred is calculated to interfere with our revenue from spirits. I draw attention to the fact that never yet has any arrangement been made by countries which have adopted a preferential Tariff for interfering with their duties on intoxicants and narcotics. That is a very important point, and should the Minister think it necessary to reply - he does not always do that - he might favour us by directing some attention to it. There is another matter which he passed over without the . slightest notice. Our import dutv on sugar is 6s. per cwt. According to this agreement, we are to admit sugar from South Africa at the rate of 5s. per cwt., if it is grown by coloured labour, and at the rate of 4s. per cwt. if it is produced by white labour. I protest with all the strength and force of which I am capable against the introduce tion into our Tariff - especially against its sneaking introduction without any knowledge being placed before the Senate - of this principle of differentiation against coloured people who form the great mass of the British Empire. Suppose that the Bill be agreed to, I do not know whether the Governor-General would fee”! himself justified in assenting to it. But when we are told that we are getting very little goods from South Africa, and that very little can come, why should we enter upon such an arrangement which is an open insult to 300,000,000 or 400,000,000 people in the British Empire? Why should such a proposal be placed before the Senate without a word being uttered in support of it ? Let me now draw attention to another important fact. It was only yesterday that the Senate finally passed a Customs Tariff Bill which, in spite of all protests, increased the duties on agricultural implements to a very high figure. But to-day we have put before us - what? A proposal that we should admit harvesters from South Africa at about 9 per cent. The Minister does not know anything about the subject. The figures placed before us in this Bill are exactly those which stand in the Customs
Tariff Act of1902, namely,12½ per cent. on agricultural and mining implement, and off that rate one-fourth is to be taken. That proposal is made to us the very day after the Minister has forced through the Chamber a measure putting up the duty on harvesters, especially as. against Canada, another portion of the British Empire, a good many times 9 per cent. The Minister throws this Bill at us in a five minutes’ speech, and makes no reference to that point, apparently thinking that it is of no consequence. I believe that there is not one member of the Cabinet who could give a thorough and lucid explanation of the arrangement into which they have apparently entered. There is another remarkable feature with regard to the item of sugar. Article 5 of the South African Customs Convention binds the South African Colonies to impose upon imported sugar an additional dutv equal to any bounty given on the production of sugar. Therefore, if we sent sugar from Australia to South Africa, at any time, it would be subject to a duty of 3s. 6d. per cwt, when produced by coloured labour, because there is no bounty given upon its production then; but if it happened to be produced by white labour, it would be subject to a duty of 3s. 6d. per cwt., plus the bounty of 3s. which is given in Australia. So that Ministers, while agreeing to the differentiation on the one hand against coloured labour, are actually agreeing with the Cape in a differentiation against white labour in Australia. I should like honorable senators to take a note of the fact that sugar produced in Australia by white labour would haveto pay a duty of £6 10s. per ton when imported into South Africa, while sugar produced here by coloured labour would be admitted at adutyof£310s. per ton. That, taken in connexion with the other arrangement about admission into Australia, constitutes a very remarkable state of affairs. Article 15 of the South African Customs Convention reads as follows -
Any Colony or Territory within the Union may provide for the suspension of the whole or part of the Customs duties imposed by the foregoing Tariff on the importation for consumption in such colony or territory of any goods or articles comprised in the first part of schedule C annexed hereto, and the territory of Southern Rhodesia may, in addition, provide for the suspension in whole orpart of the duties on any goods comprised in the second part of such schedule.
That shows that we are entering into an agreement of a very loose character which mightbe suspended at any moment by the Colonies which were taking the largest portion of our goods. Article 22 reads -
Nothing herein contained shall be deemed or taken to prohibit the Transvaal from allowing the importation free of duty into that Colony of any goods and articles, excepting spirits,the growth, produce, or manufacture of the Portuguese Province of Mozambique or of British Central Africa.
That is another difference which we could not have anticipated from the Minister’s statement. The Transvaal may admit goods absolutely free of duty from the Portuguese province of Mozambique or British Central Africa. Article 24 reads -
It shall be competent at any time during ‘the existence of the Union for any other ‘Colony, Territory, or State of South or Central Africa, having a civilized Government, to apply to be included as a party thereto ; and upon all the parties to this Convention signifying their joint assent to such admission and mutually agreeing to the terms and date of such admission, such Colony, Territory, or State shall be admitted, provided that it passed the requisite legislation to give effect to the terms of such admission.
According to this statement, Bechuanaland proper and Rhodesia will also be able to come into this Customs Union. I am reluctant to take up the time of the Senate, but perhaps I had better read a few passages from the South African Year Book, in order to enable honorable senators to form some idea of the capabilities of the various Colonies, and to judge as to the prospects of South Africa being able, within a very short time, to not only meet her own requirements in regard to products, such as she has largely drawn from us, but also to send us large supplies of spirits, wine, and fruit.
– What kind of fruit?
– In regard to Cape Colony it is stated -
No practical gardener, who knows anything of the conditions of climate and soil in the Cape Colony and Natal, can reasonably doubt the natural adaptability of these colonies to the culture of the vine and the growing and production of garden fruits. Indeed, almost every kind of fruit is cultivated in these regions, their condition and quality being affected according to the altitude of the land above the coast. Within the last decade the economic importance of South African fruit-growing has been greatly enhanced. This is shown in the increased demand on the part of the leading English and foreign importers, in whose establishments Cape grapes, peaches, pears, plums, and apples of the best quality command a ready sale during the early months of the year.
Then follows a statement that in 1898 the fruit trees in Cape Colony numbered 2,470,000. Of Natal it is stated -
In Natal almost any fruit may be grown. Bananas, custard-apples, mangoes, pineapples, &c, grow only on the coast] guavas, lemons, limes, oranges, &c, grow on the coast and in the midlands; apples, apricots, figs, pears, &c, grow in the midlands and uplands ; almonds, currants, gooseberries (the Cape variety), chestnuts, plums, quinces, &c, grow up in the uplands only ; while melons, mulberries, peaches, “pomegranates, and strawberries grow everywhere. Pineapples cost id. to 3d. each, and other fruits are equally cheap, prices often only ^covering cost of gathering and carriage to market. The fruit industry, whether for dried or fresh fruit, might be increased to any extent if there were only good markets. As it is, the supply far exceeds the local demand. The putside markets are the Cane Colony, the Orange River Colony, and the Transvaal gold-fields.
This shows that if we afforded South Africa ;a preferential market for dried fruits, she would very soon be able to take advantage of it. Further information is given as follows : -
Concerning the imports of Cape fruit “to the United Kingdom, the figures are instructive.
I do not intend to give the figures in detail. It is sufficient for me to mention ;that in 1903 about 20,000 boxes of fruit, such as grapes, plums, and pears, were sent to the United Kingdom. We are informed -
The demand for Cape fruit has increased considerably., and this season it has been put into markets that should be a great help to the trade in the future. New York has contributed to a very fair extent in this respect. Indeed, so promising is the trade with the United States that an expert is leaving for New York shortly, to push the sales, and inquire into American packing methods. Continental towns have also had Cape fruits put before them this season, but as it has taken some ten to twelve years to get it known, or asked for, to an appreciable extent here, it will necessarily take some time before other markets are able to take an v quantity. Referring here particularly to plums, one thing in their favour is that they will keep for a month or six weeks after their arrival, and this should be the means of extending the season very considerably on this side, and, by utilizing cool storage, there is every prospect of being able to regulate the supply to bc put on the London market.
Reference must be made to the large fruit cultivation experiment initiated bv the late Mr. Cecil Rhodes in the Western Province. There are in all about fifty farms, five of which are situated in the district of Stellenbosch, seven in the neighbourhood of Wellington, thirteen in the Drakenstein Valley, near Paarl, and two in Tulbagh district, and others dotted over the country. Roughly speaking, there are already more than a quarter of a million fruit trees and half a million vines on the fifty farms, most of 1 which are situated in the Drakenstein Valley.
A fortnight before his death, Mr. Rhodes transferred the State property to a private company, to be known as the Rhodes Fruit Farms (Limited). The capital is ^300,000, of which ^120,000 is in hand as working capital. Among the directors are Dr. Jameson, Sir Charles Metcalfe, and Sir Lewis Mitchell, M.L.A., while the technical management has been carried out by Mr. H. E. V. Pickstone, a successful and energetic nurseyman, with Californian experience, who, it is understood, has quite recently resigned owing to extreme pressure of other work. The company proposes, in accordance with Mr. Rhodes’ ideas, to make an attempt to place the export trade in fruit and wine to Europe and America on a sound commercial basis by offering large consignments to the shipping companies, and pushing the fruits into all the best markets of the northern hemisphere. Mr. Rhodes considered the prospects of building up a successful export trade in fruit to be thoroughly hopeful, and he regarded the unique geographical position of the Cape in regard to fruit as one of the most valuable assets of the pioneers of the industry.
Then it is stated -
Jam Making. - There is a very large field open in South Africa for local jam production, and factories now exist in Cape Colony, Natal, and Transvaal. The largest jam factory in the Cape ‘Colony is situated at Stellenbosch. In 1901 the output reached a total of ‘1,200 tons, whilst last year it attained to some 2,000 tons. At present South Africa imports jam largely, but it ought to be quite capable not only of producing all it requires locally, but also of developing an export trade in jam from some of the native fruits.
It may be here noted that the local demand for fruit is simply enormous, more than equalling the supply, but with commendable’ forethought Cape and Natal growers are keeping up the export abroad, for they foresee that the supply will, in a vear or two, be on a par with the demand, and in a few years will be suffix ci.ent to fully equal the calls made upon it, both at home and abroad.
The grape vine was introduced into South Africa from Europe as far back as by the earliest settlers. In i6?n brandy wine appears to have been produced for the first time ; in 1681 brandy was made ; and in 1684 the famous Government wine farm at Constantia was laid out by the Dutch Governor, Symon van der Stell. Since these days the cultivation of the vines has continuously increased in Cape Colony and wine, brandy, table .”runes, and raisins now form an important proportion of the Colony’s production.
The grapes for the table are, as a general rule, both larger and finer than the European varieties, and are now largely exported to England and the United States of America. Large quantities of raisins are also shipped to this country.
All this is information which should have been supplied to us by the Minister, in order that honorable senators might have formed some idea of the ability of South Africa to forward us large supplies. According to the view generally put forward, this is a one-sided agreement, under which we shall be able to supply South Africa with millions of pounds’ worth of our products, whilst taking nothing from her in return. No more misleading statement was ever made in this Parliament. In another passage, it is stated -
Considerable attention to wine-growing is now also being given in the Orange River Colony and the Transvaal.
In the Transvaal it is said that tobacco can be grown with great advantage and profit in seven or eight different districts. The Minister .ought to have told us those facts.
– I thought that all honorable senators had read the paper that has been circulated.
– No one would have expected for a moment from the Minister’s statement that any such agreement with regard to narcotics and stimulants was proposed. If honorable senator’s look at the statement, however, they will find that while Cape Colony does not give up one fraction of her duties on narcotics and stimulants, this reckless, spendthrift Commonwealth Government is prepared to give up large sums of money. I do not desire to labour the matter. I think I have been fully justified in taking up a little time in dealing with it. The importance of it would Iia ve warranted me in addressing the Senate for two or three hours, and I should have found ample matter to occupy me for that time. I can assure the Senate that the proposals pf the Government are not calculated to be of any material advantage to the Empire. Of course, I desire to see duties reduced. I am ready for arrangements to be made that will promote trade all round. No one is more ready than I am for such an arrangement. Everybody is aware of that. But let there be no misapprehension in regard to what is proposed. It is calculated seriously to affect our revenue; whilst the export trade to which the Minister has referred is of a very evanescent character, that must rapidly pass from our hands, as the colonists of South Africa develop their magnificent agricultural possibilities, and -produce their own grain and wheat. If honorable senators were guided by me they would saw “ We will wait until next year when another Imperial Conference is to take place before we do anything in this matter.” The Conference is to be held in April, 1907. It would be wise for us to hold our hand, and say that until the
Conference has taken place, and there has been consideration all round as to what is best to be done, we will do nothing. Honorable senators can see at a glance that there is no uniformity in connexion with the proposals of the Government in respect of preferential trade. There is no system, no guiding idea. We have simply a haphazard scheme put before us. Canada had a definite scheme. So had New Zealand. If Australia is to go into this preference business she must have a definite scheme of her own ; and I submit that before anything further is done we should wait until after the next Conference in London, which will be attended, not only by representatives of the self-governing portions of the Empire with their 12,000,000 of people, but bv representatives of India, with its 300,000.000 people. Indian interests will not be passed over and neglected again as thev were by the Conference two or three years ago. I therefore urgently press upon honorable senators that that is the best policy for the Commonwealth.
Senator MILLEN (New South Wales) [.10.35I - I have no intention of opposing the Bill, but I do think that, .as Senator Pulsford has just pointed out, a great deal of the gilt which is being popularly thrown over this proposal will have to be torn off it. Any proposal which makes in the direction of freer trade between Australia and other portions of the Empire is one which I naturally welcome; but I must express the opinion that this proposal, even if given effect to, will not have anything like the advantageous results that have been popularly supposed. I desire to point out one or two points which it seems to me the Government has quite overlooked in regard to the effect that this arrangement will have on certain of our industries. First I draw attention to th*e fact “that it is a question of accepting the schedule as a whole or not at all.
– Hear, hear.
– Therefore, all that I can do is to point to one or two instances which support the opinion which I am expressing that this arrangement will prove to be entirely disappointing. Senator Pulsford has pointed to the preference to be granted with regard to spirits. I wonder if honorable senators recognise that it is actually proposed to allow South African spirits to come into Australia at the same rate of duty as that paid in Excise by local spirits, plus z£ per cent., which, the duty on spirit being 10s. per gallon, would make the South African spirit pay 10s. 3d.
– South Africa will . not send us any.
– If the manufacturer in Great Britain has to spend 14s. per gallon when he sends his spirit to Australia, whilst spirit manufactured in South Africa can be imported to Australia at a duty of 10s, per gallon, I venture to say that exports from Great Britain wi’l decrease, whilst exports from South Africa will increase considerably.
– The same thing applies to tobacco.
– Here it is proposed with regard to tobacco that, the South African manufacturer shall land his goods in Australia on exactly the same terms as those afforded to local manufacturers, at the same time leaving a difference of 9d. per lb. against manufacturers in Great Britain. I do not know very much, about the tobacco manufacturing industry, but I have no doubt that 9d. per lb. is a very considerable bonus indeed.
– Is tobacco manufactured in South Africa?
– We are offering such a great bonus that it will stimulate manufacture, and even pay to establish a factory in South Africa for the purpose of manufacturing for export to Australia. But whether that be so or not in regard to tobacco, certainly with regard to spirits the enormous reduction which has been made in regard to spirits imported from South Africa is so great as fo justify the fear that advantage will Be taken of it, and that spirits which have hitherto been imported from London will in future come from South Africa.
– Then there will be a great loss of revenue.
– There will be an enormous loss of revenue. The arrangement places spirits imported from South Africa practically on the same footing as spirits manufactured in Australia. Whilst dealing with those two items, let me point out what a criticism they offer upon the professed desire of this Government to have a preferential trade arrangement with Great Britain. Anything said about preferential trade with
Great Britain, so far as these items are concerned, must be considered in the light of this agreement. While the Government profess a desire to encourage closer trade with Great Britain, they are, by entering into this agreement with South Africa, doing their utmost to divert trade from the mother country to the South African Colonies. It is true that they are part of the British Empire, and that in one sense, therefore, the matter is not open to serious criticism, but I mention it as illustrating the extreme difficulty of adopting any system of preferential trade except that which regards all parts of the British Empire as one. There is one other item to which I desire to draw, attention, and to which allusion has been made by Senator Pulsford. I refer to the proposal in regard to agricultural and mining machinery. As this agreement provides for a reduction by 25 per cent, of the duty of 12J per cent., 1 presume that it was negotiated before the Government had launched the Customs Tariff (Agricultural Machinery) Bill. I wish to know whether this agreement is to stand so far as harvesters are concerned.
– Our manufacturers can hold their own against the South African makers of agricultural machinery, and this schedule is to stand.
– Under the Tariff passed in 1902 a duty of 12 J per cent, was imposed on machinery, but by the Customs Tariff (Agricultural Machinery) Bill the duty in the case of harvesters was raised to ;£i2 per machine, and duties on other agricultural machinery were also increased. I am to understand from the Minister that this item, under which the duty on agricultural and mining machinery coming from South Africa is to be 25 per cent, less than the rate of i2 per cent, fixed by the Tariff is to stand
– Does the general term “machinery “ include harvesters t
– “ Agricultural and mining machinery “ must cover every machine used for agricultural or mining purposes. Within the last week or two we have passed a Bill providing for a duty 01 ;£i2 per machine on harvesters, and increasing the duty upon other agricultural implements. We are now asked to adopt an agreement which reduces by something like £4 per machine the duty on harvesters coming from South Africa. I do not object to the lowering of duties ; I merely refer to this item as an illustration of the inconsistency which! I have to admit is not quite foreign to the attitude of the Government in relation to public business.
– I do not propose to occupy the attention of the Senate for more than two or three minutes since I feel that, owing to the late hour at which this proposal has been submitted^ and the pressure of work upon us, it is my duty thus to compress observations which under ordinary circumstances I should have felt justified in extending over half-an-hour. I was present when the leader of the Senate said, in answer to an inquiry by Senator Millen, that Australian manufacturers could hold their own against those of South Africa.
– That was in relation only to agricultural machinery. Surely, even without a duty, we could hold our own against South African manufacturers of agricultural machinery !
– In other words, the honorable senator says we cannot hold our own against such manufactures coming from ‘Great Britain, and therefore we are not going to grant a preference in respect of them ; on the other hand, we can hold our own against those coming from South Africa, and therefore the preference proposed to be given is merely illusory. 1. recognise that in this case the Government propose such a preference as the Opposition have always contended for : a reduction of duties. But there is one important exception, and it was mainly to draw attention to it that I rose, i refer to the item Spirits, a footnote to which points out that the preferential rates in that cast: are not actual preferences. Could there be a more significant declaration as to the value of all the so-called preferences that we have offered to Great Britain than is to be found in this footnote? It simply means that in the opinion of the Government the so-called preferences offered to Great Britain are not actual preferences. The one item in this schedule in respect of which no reduction of the existing duties is made is described in the way I have indicated. The Ministry have now told us that what thev consider an actual preference is a reduction of duties. On their own showing, therefore, thev have not granted Great Britain what they themselves describe as an actual preference.
Senator Lt.-Col. GOULD (New South Wales) [10.48]. - I should like to draw attention to one or two matters that have not been so strongly accentuated as they might, have been since Senator Pulsford spoke. There are. many who make a fetish of the policy of a White Australia and a White. Ocean, and possibly they would have a White British Empire. Notwithstanding this, they are prepared to. a gree to a proposition that sugar produced by black labour in South Africa shall be admitted, at a . duty of £1 per ton less than is. charged on sugar produced by white or black labour in any other part of the world. We also find that South’ Africais not going to grant a reduction of duty on sugar sent from Australia. She is going to charge us 3s. 6d. per 100 lbs. on sugar grown by either white or black labour, but on that . grown by white labour, an additional 3s. will be paid in bounty, making the impost practically. 6s. 6d. per 100 lbs. It is quite refreshing to learn that those who actually make a fetish of the policy of a White Australia and a White Ocean are prepared to accept, a preferential agreement under which the man who can succeed in raising sugar here by black labour will be required to pay a duty of only £”3 10s. per * ton on that which he sends to South Africa, as against a duty, plus the bounty, of -Q6 10s. per ton on sugar grown by white labour.
– I also point out that, while we do not allow sugar to be grown: by black labour in Australia, we give a preference to sugar grown by black labour elsewhere.
– That is so. This is a nice position into which the labour representatives havel “allowed themselves to get ! I know that those honorable senators are going to accept the Bill, and, perhaps, they will say that they suffer this injustice in order to get some commensurate gain. My own idea is that there can be no commensurate gain in the eyes of some of those honorable senators, if black labour is to be placed on a pinnacle while white labour stands below. There is a charge made by the. South African Customs Union Convention on bounty-‘ grown sugar ; and, as all our white-grown sugar receives a bounty, ^3 a top will be added to the duty for the benefit of South Africa. Senators Millen and Pulsford emphasized the position in regard to the Excise on spirits. The poor unfortunate distillers of Australia, who are said to be’ making such a struggle for existence with- a protection of 4s. a gallon against imported spirits, will find that in South Africa they have to compete, not only against spirits imported from Great Britain under a duty of 14s., but also against spirits made in South Africa, on which is paid only 3d. per gallon more duty than the amount of Excise on Australian spirits. There is a certain article known as Cape brandy, which is produced in South Africa by cheap black labour, under no such restrictions as are imposed in Australia in a similar industry ; and this brandy is to be brought into competition with the production of Australian distillers, who are compelled, under a penalty, to pay a certain rate of wages, and work their men only a certain number of hours.
– Is the honorable senator sure that Cape brandy is made by black labour?
– I am sure that Cape brandy is made by means of much cheaper labour than is Australian brandy. I find that on .spirits the duty in South Africa is 19s. per proof gallon ; and on this commodity Australia is receiving no preference whatever. Then, again, South Africa gives Australia no preference in the matter of wine, whereas Australia gives a preference to South Africa of 2s. per gallon on bulk wine, and 3s. per gallon on bottled wine. Honorable senators may wonder why I should be content to allow this Bill to go through its second reading. But in this matter I have a good example set by my labour friends and ardent protectionists. If those honorable senators had the courage of their convictions, I might find myself following them in regard to this measure; but I do not expect any such thing to happen. I find that we exported to South Africa during .1905 very large Quantities of cheese, fodder, flour, and frozen produce, besides small quantities of other commodities. I am told that in South Africa the duties on wheat and flour have been suspended. That suspension may not last very long, but, at any rate, we should get a certain amount of benefit in the event of the suspension not being continued. I am not aware that there has been any suspension of the duties on frozen meats and other commodities which ‘ have been exported to South Africa in considerable quantities. I know that this export trade grew up in consequence of the war; and now that the trade has been secured, I am not going to take any step which will have the effect of destroying or minimizing it. I shall be glad if this arrangement enables Australia to secure a- stronger hold upon the South African market ; but if we find that the expected advantages are illusory, we can terminate the arrangement by giving twelve months’ notice. With such a safeguard, and with the advantages I see in certain portions of the proposed preferential trade, I am prepared to accept the Bill in the hope that it will be of mutual benefit to South Africa and Australia.
– In the first place, I should like to point out that Senator Pulsford quoted from an old belated document in reference to the South African Customs Union Convention, while the document which I used in mv speech is the very latest, being signed by the Governor this year. The remarks of honorable senators opposite in regard to the bounty on sugar are altogether beside the question. There is no such bounty now as that referred to by Senator Pulsford when he quoted from the old document, which has been superseded, and, therefore, I need not pursue that point further. Senator Gould is quite wrong when he says that this arrangement gives a preference to sugar grown by means of black labour. The position is just the reverse; we give a preference to whitegrown sugar as against black-grown sugar.
– A preference is given to black-grown sugar ; but a greater preference is given to white-grown sugar.
– The preference is doubled in the case of white-grown sugar.
– The arrangement allows black-grown sugar to be sent into Australia, although at a disadvantage.
– Black-grown sugar will be at a disadvantage as compared with white-grown sugar.
– We do not permitit to be grown here at all, if we can help it.
– We allow sugar to be grown here with black labour, but it is placed at a disadvantage as compared with sugar grown by white labour under our Excise Tariff. In the proposed preference, with South Africa, the position will be precisely the same, and we are carrying out exactly the same policy.
– Still the Minister must admit that it is proposed to give sugar grown by black labour an advantage of1s.
– It is proposed to place it at a disadvantage of1s. as compared with sugar grown by white labour. On the subject of agricultural implements and machinery, all I have to say is that our people can hold their own against any manufacturers in South Africa. So we need not trouble very much about that.
– But we do give them a preference.
- Senator Pulsford endeavoured to show that we should be giving South African manufacturers an advantage, but we shall be doing nothing of the sort. Senator Gould invited us to consider the advantage we were giving South Africa in the matter of spirits. We are giving them nothing in the matter of spirits. We place spirits at Excise rates, plus2½ per cent., and we have a note at the bottom of the schedule which says that practically this amounts to no preference at all. So that there is no deception in the matter, and the whole thing is set forth plainly. Senator Gould told us that, after passing Bills dealing with spirits for the protection of our own manufacturers, we are here proposing to let spirits manufactured in Cape Colony come in free. Of course, that is not so. Then, in regard to wine, we are going to be at a fearful loss according to honorable senators. Nothing of the sort. We can hold our own in the manufacture of wine as well as in the manufacture of agricultural implements. If honorable senators will carefully study the schedule, they must come to the conclusion to which Mr. Joseph Cook, the leader of the Opposition in another place, when the real leader is away, came when he said, “ It appears to me to be too good to be true.” That is really the position, and I confidently recommend the Bill to the favorable consideration of honorable senators.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 3 agreed to.
– I do not propose to suggest amendments in the schedule seriatim. 1 intend to move one amendment, and when that is disposed of, I shall have finished. I move -
That the House of Representatives be requested to leave out the items “ Spirits . . . , “ “Tobacco . . . , “ “Sugar . . . , “ and “Wine . . . “
These items cover intoxicants and narcotics, and the request, if agreed to, would bring this proposal more into line with the Canadian agreement. I do not think the Minister will contradict the statement I made with regard to the Canadian preference law. Canada will grant no preference to any country in the world on intoxicants and narcotics, because they are looked upon as revenue-producing items, which should be conserved. In the same way, we should conserve them here.
– The request would destroy the whole agreement.
– Of course it would.
– Are we to sit still and pass a measure merely because another place approves of it ?” Because the request I have moved, if agreed to, would destroy the Bill, is my mouth to Be shut and my conscience to be silenced? I have frequently appealed to the Senate not to passany legislation differentiating against the hundreds of millions of coloured subjects of the Empire - and all for what? In this case for a proposal which will do very little good to Australia, but will cause a great deal of trouble and heart-burning in various portions of the Empire. Why should honorable senators be so contemptuous about it? Why will they not take the question to heart and study it ? Why is my appeal treated with laughter by (the Minister? The matter is of more importance to the true progress and future well-being of the Empire than any advantage which Australia may get from any of these items. I again appeal to honorable senators to omit the items of narcotics and stimulants to which I have referred, and to omit the item “ Sugar “ because of its bearing on the coloured labour question. I earnestly beg honorable senators to weigh what I have said, and to give no vote until they have threshed the matter out in their minds.
– I am afraid that, as practical men. we must adopt the schedule, as it has been put to the Committee, in globo. It represents a treaty. and, however much some of us might agree with what Senator Pulsford has said, we must recognise the liability we should incur by supporting his request. We should destroy the whole value of the proposed agreement. It represents a compromise, and, so far as I am concerned, I am prepared to accept it. Further, 1 hope there will be very little more discussion of it by Senator Playford or any other honorable senator who is prepared to make public statements in regard to it of a nature similar to those which the Minister made in his last amusing speech. 1 felt quite a shudder when I imagined what the people of South Africa would think if they could have heard those statemerits, and what they will think when they have read what the leader of the Senate has said with regard to this bargain.
– They have copies of the documentin South Africa now.
– But they have not yet read what Senator Playford has said with regard to the contents of this Bill. They have not yet heard that, from his point of view, we are giving them absolutely nothing ; that with all the preference we. profess to offer them they cannot compete with us, and that from their point of view the preference proposal will be perfectly useless, whilst from ours it will be of enormous benefit. We might flatter ourselves that the arrangement proposed is a good one from our point of view, but it is not very desirable that we should throw in the teeth of the people of South Africa a statement tothe effect that we have entirely fooled them.
– Why take the opposite view that we have been entirely fooled by them?
– We may, in the course of the next month or two, hear that it has been said in the South African Parliament that they have fooled us Australians. I deprecate such statements as that of Senator Playford, for the reasons that 1 have given.
Senator Lt.-Col. GOULD (New South Wales) [11.11]. - I am glad that Senator Pulsford has made a strong protest, and has given the reasons for the position which he has taken up. If this were not the fag end of the session, honorable senators would have received his remarks very differently. Although even we on this side do not always share his opinions, we treat everything he says with the utmost respect, knowing that he never speaks without full consideration, and without having satisfied himself of the correctness of his statements.The Chamber is frequently indebted to him for very valuable information on all matters appertaining to statistics and to Tariffs. I hope that what he has said in regard to intoxicants and narcotics as revenue producing items will be taken to heart by the Government in connexion with future preferential trade arrangements, and that they will see that surrenders similar to those made by us are made by the other party to any agreement. As to which side gets the better of a bargain is a matter of opinion, and if both sides are satisfied, no one need complain.
Schedule and title agreed to.
Bill reported without request.
Standing Orders suspended. Report adopted.
Motion (by Senator Playford) proposed -
That the Bill be now read a third time.
. -Irise to briefly express my regret that the Senate has thought fit to pass the Bill without requesting its amendment. In doing so it has not regarded the great Empire conditions to which I have referred. I disapprove of the reckless ignoring of revenue considerations, and of the methods adopted by Canada and other parts of the Empire, in their preferential arrangements to safeguard their revenue from narcotics and intoxicants.. But important as matters of revenue are, I shall never cease to complain that we have passed in this measure a Bill differentiating against the great body of the citizens of the Empire.
Question resolved in the affirmative.
Bill read a third time.
Motion (by Senator Clemons)’ agreed to-
That there be laid on the table of the Senate copies of all the correspondence to date on the subject of appointments to the High Court.
Motion (by Senator Playford) agreed to-
That the Senate, at its rising, adjourn until 11 a.m. to-morrow.
Senate adjourned at11.19 p.m.
Cite as: Australia, Senate, Debates, 9 October 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19061009_senate_2_35/>.