3rd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– I desire to ask the Minister representing the PostmasterGeneral, without notice, a question with regard to proposed additions to the post office at Port Pirie. I desire to ascertain whether, instead of patching up an old building, which is in an exceedingly inconvenient and dangerous position, the Government will consider the advisability of getting a report on the question of obtaining a new site in a more convenient place, and that will be less dangerous to the public ?
– If I remember rightly, the Director of Public Works for Victoria was sent to South Australia for the express purpose of reporting on that question. Originally, I think there was an idea of procuring a fresh site and erecting a new building, and it was on his recommendation that it was decided that it would be possible to make the necessary alterations and repairs to the present post office building, and avoid additional expense.
– That is not central, and is in a dangerous position.
– In conjunction with the Postmaster-General, I shall go into the matter on the lines which Senator O’Loghlin has suggested, and see if there is any good and substantial reason which will commend itself to the Government to adopt the course suggested.
– I desire to ask the Minister representing the PostmasterGeneral, without notice, if he will lay upon the table of the Senate, or in any other way offer facilities to an honorable senator to peruse the existing contract for the mail service between Tasmania and the mainland?
– I see no objection to placing the contract on the table of the Library.
Bill received from the House of Representatives, and (on motion by Senator Best), read a first time.
asked the Minister representing the Minister of Trade and Customs, upon notice -
– The answers to the honorable senator’s questions are as follow -
asked the Vice-President of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow -
– Arising out of that answer, I desire to ask the Minister whether it is or is not the intention of the Government to compel the contractors to bear that cost?
– I am hardly in a position to answer the question. If my honorable and learned friend would ask me the question directly on Wednesday next I shall endeavour to give him a reply.
– Arising out of that answer, I wish to ask the Minister whether it is not a fact that on former occasions special trains have been run in order to catch the outgoing English mail ?
– I do not think that that question arises directly out of the answer to the question of Senator Macfarlane, which dealt specifically with one case.
– I listened to the answer given by Senator Best to the third branch of the question, and, with great respect to him, I would point out that he did not answer it in any way. I ask him now to tell me whether, if the contractors are not called upon to pay the expense, it will be borne by the Tasmanian Government ?
– I ask my honorable and learned friend to give notice of the question, as I am hardly in a position to give an answer.
– I have already given notice of the question.
– I submit that notice has been given of the question.
– There can be no discussion.
– I wish to ask Senator Best whether he declines to answer the question?
– No; I shall answer it on Wednesday next.
– I cannot allow any discussion on the matter. Senator Clemons entertains one opinion, the Minister entertains another opinion, and the only way to elucidate the matter will be for the former to ask the question again on Wednesday next.
– Only to get no answer again.
– I cannot help that.
– We were promised that an inquiry would be made.
– With reference to the following question standing in my name on the notice-paper, and addressed to the Vice-President of the Executive Council -
If he has a copy of the papers entitled “ State and Federal Finance,” and “ The Finance Problem and the Way Out,” prepared by the Statistician of Tasmania for the use of the Tasmanian Premier at the late Conference of Premiers at Brisbane; and, if so, will he table them and move that they be printed and distributed? “‘It has struck me that it is just possible that the papers I desire to be made public may have been appended to the report of the Premiers’ Conference.
– I understand that the papers will appear as appendices to the report. As it is proposed to lay the report on the table of the Senate to-day, perhaps my honorable and learned friend will not ask the question.
– I am prepared to take that as an answer.
Senator BEST (Victoria- Vice-President of the Executive Council [10.40]. - I beg to lav upon the table the following paper -
Report of the resolutions, proceedings and debates of the Premiers’ Conference held at Brisbane, May, 1907, together with appendices.
It will go to the Printing Committee in theusual way.
Motion (by Senator Stewart) proposed -
That the paper be printed.
. This is a motion which should hardly bepassed without receiving a little consideration. It is a well-known fact that in past, times documents of this kind have been> printed, and that on a definite motion by one House or the other have been printed’ again. An enormous expense has been unnecessarily incurred in that way. ThePrinting Committee of the Senate hasagreed to hold a joint meeting every week with the Printing Committee of another place, when all these questions will be properly considered. I can assure honorable senators that so far as the Printing Committee is concerned, every necessary document will be published, but at the same time care will be taken to prevent any duplication of printing.
– For two or three reasons I must ask. Senator Stewart to withdraw the motion. If it were negatived it would mean that a member of the Printing Committee would have to come to the Senate and! move that the paper be printed. As a matter of fact, it has already been printed in Brisbane, and it is probable that an arrangement will be made whereby the necessary number of copies of the report wilt be obtained from that source. These are all matters for the consideration of the Printing Committee, who, I feel sure, are fully alive to the importance of their duty. They have arranged, very wisely I think, to hold a joint meeting with the Printing: Committee of the other House every week,, so that every expedition may be expected. I ask Senator Stewart, in order not tojeopardize his own object, to withdraw the motion.
– This is a very important paper, which I am anxious to see as soon as possible. Yesterday we heard a great deal about the Printing Committee not desiring to invade any of the rights of the Senate, and I thought I would just put the matter to the test to-day. Seeing that the document is already in print, and I supposewill be circulated in due course, I ask leave to withdraw the motion.
Motion, by leave, withdrawn.
In Committee (Consideration resumed from 1 8th July, vide page 680).
Clause 7 -
The State Acts set out in the First Schedule shall, to the extent specified in that schedule, cease to apply to bills of exchange, cheques, And promissory notes drawn or made after the commencement of this Act.
Bills of exchange, cheques, and promissory notes drawn or made after the commencement of this Act shall not be subject to stamp duty under the laws of any State other than -
in the case of a bill of exchange (not being a cheque) - the State in which the bill is drawn;
in the case of a cheque - the State in which the cheque is payable;
in the case of a promissory note - the State in which the note is made.
Upon which Senator Keating had moved by way of amendment -
That the following words be left out, “ Bills , of exchange, cheques, and promissory notes drawn or made after the commencement of this Act shall not be subject to stamp duty under the laws of any State,” lines 6 to 9.
– Seeing that there is such a diversity of opinion in respect to this clause, I ask the Minister of Home Affairs to agree to its postponement. Honorable senators will then be afforded an opportunity of considering it before they are again asked to deal with it next week.
– As honorable senators will recollect, when this clause came before the Committee yesterday I submitted amendments which were designed to meet the criticism that had been addressed to it by Senator Symon and others upon the motion for the second reading of the Bill. Those amendments took the form of an alteration of sub-clause 2, and the addition of a new sub-clause 3. I have had them printed, and they would, in the ordinary course, have been circulated the first thing this morning. But my colleague, the Attorney-General, who is responsible for the drafting of this measure, and who has gone very much more fully into the clause than I could hope to have done, has urged that if it were open to objection in its original form, still greater objection can be levelled against it in its amended form. I have not yet had an opportunity of considering the matter with him. Consequently I intend to ask the Committee to agree to the postponement of the clause. If that course be adopted, I shall be able to state more fully at a later date the position as it appears to the legal mind of the Government. It was for that reason that the amendments, though in print, were not circulated this morning.
Clauses 8 to 27 agreed to.
Clause 28 -
No person is liable as drawer, indorser, or acceptor of a bill who has not signed it as such : Provided that -
Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name; and
the signature of the name of a firm is equivalent to the signature, by the person so signing, of the names of all persons liable as partners in that firm.
– I wish to ask the Minister whether the question of the indorsement of cheques is entirely covered by this portion of the Bill ? Of course I am aware that a cheque is a bill of exchange, but I wish to know whether there is any separate provision in this measure relating to the indorsement of cheques?
. -Iamnot prepared to say off-hand whether this provision covers cheques as well as ordinary bills of exchange. Part III. of the measure contains provision for any special matters in relation to cheques. But, apart from that, these are not the only clauses of the Bill which apply to cheques. Many of its provisions deal not only with bills of exchange, but with cheques.
– If I desire to propose an amendment in Part III. of the Bill dealing with the proper or improper indorsement of cheques, I presume that an opportunity will be afforded me to do so, notwithstanding that the whole question of their indorsement seems to be ‘dealt with in the portion of the measure which we are now discussing.
– It will be quite competent for Senator Clemons to move for the insertion, in Part III. of the Bill, of a provision which will have the effect of limiting the operation of this clause so far as cheques are concerned.
Clause agreed to.
Clauses 29 to 32 agreed to.
Clause 33 (Accommodation bill or party).
– I should like to know if this provision has been copied from the Imperial Act of 1882 ?
– Theprovision is an exact copy of a section in the Imperial Act to which the honorable senator refers.
Clause agreed to.
Clause 34 verbally amended and agreed to.
Clauses 35 to 38 agreed to.
Clause 39 -
– Ithink it is desirable that persons should be at liberty to convert an open indorsement into a special indorsement. That sort of thing is done every day in banking practice. John Jones, say, makes a bill in favour of Samuel Smith, and Samuel Smith indorses it openly. That bill passes into the hands of another person, who converts the open indorsement into a special indorsement. Is there anything in this clause to prevent that being done ?
– The honorable senator will see that sub-clause 4 meets that difficulty.
Clause agreed to.
Clauses 40 to 46 agreed to.
Clause 47 (Non-acceptance).
– Under this clause, when a Bill is duly presented for acceptance, and is not accepted “within the customary time,” the person presenting it must treat it as dishonoured by non-acceptance. I should like to know from the Minister whether the Bill contains any definition of “customary time ‘ ‘ ?
.- No. The custom would be determined in any case by evidence adduced before the Court. This is the ordinary practice in discovering what is the customary time.
Clause agreed to.
Clauses 48 to 53 agreed to.
Clause54 (Rules as to notice of dishonour).
Senator CLEMONS (Tasmania) [11.7). - As these rules are very lengthy. I should like to ask the Minister if they have been taken from the Imperial Act, without modification.
– I believe so. I will read the Imperial section if honorable senators please.
– That would take some time, but if the Minister thinks that the best way in which to meet my suggestion, I have no objection. This is avery important clause, covering about a dozen paragraphs, and unless it is closely scrutinized we might pass some provision which we ought to amend.
– There is no variation in this clause on the rules as laid down in the Imperial Act of 1882, but for the sake of greater caution, if honorablesenators desire it, I shall read the English section. It is as follows : -
Notice of dishonour, in order to be valid and’ effectual, must be given in accordance with the following rules : -
The notice must be given by or on behalf of the holder, or by and on behalf of an indorser who, at the time of giving it, is himself liable on the bill.
Notice of dishonour may be given by an agent, either in his own name, or in filename of any party entitled to give- notice, whether that party is his principal or not.
Where notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given.
Where notice is given by or on behalf of an indorser entitled to give notice ashereinbefore provided, it enures for the benefit of the holder and all indorsers subsequent to the party to whom notice is given.
The notice may be given in writing or by personal communication, and may be given in any terms which sufficiently identify the bill, and intimate that the bill has been dishonoured by nonacceptance or non-payment.
The return of a dishonoured bill to the drawer or an indorser is, in point of form, deemed a sufficient notice of dishonour.
A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the bill shall not vitiate the noticeunless the party to whom the notice is given, is, in fact, misled thereby.
Where notice of dishonour is required to be given to any person, it may be given either to the party himself, or to his agent in that behalf.
Where the drawer or indorser is dead, and the party giving notice knows it, the notice must be given to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found.
Where the drawer or indorser is bank rupt, notice may be given either to the party himself, or to the trustee.
Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others.
The notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter.
In the absence of special circumstances, notice is not deemed to have been given within a reasonable time, unless -
where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the clay after the dishonour of the bill ; or
where the person giving and the person to receive notice reside in different places, and notice is sent off on the day after the dishonour of the bill, if there is a post at a convenient hour on that day, and if there is no such post on that day then by the next post thereafter.
Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder.
Where a party to a bill receives due notice of dishonour, he has, after the receipt of such notice, the same period of the time for giving notice to antecedent parties that the holder has after the dishonour.
Where a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour, notwithstanding any miscarriage by the post-office.
Honorable senators will have noticed that with the exception of the addition of the words “ or assignee “ in paragraph 10, an addition rendered necessaryby the use of varying terms in some of the States, these rules are identical with the rules set forth in the clause.
Clause agreed to.
Clauses 55 to 78 agreed to.
Clause 79 -
Subject to the provisions of this Act -
where a cheque is not presented for pay. ment within a reasonable time of its issue, and the drawer or the person on whose account it is drawn had the right, at the time at which the presentment ought to have been made, as between him and the banker, to have the cheque paid, and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than hewould have been had such cheque been paid :
in determining what is a reasonabletime regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case :
the holder of such cheque as to which such drawer or person is discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge, and entitled to recover the amount from him.
– This is rather a debatable clause. It determines the time within which cheques are to be payable.
– It deals with “ stale “ cheques.
– As Senator Walker, who is an authority on banking, reminds me, “stale” cheque is the proper term to employ. While the clause represents an effort to overcome the difficulty, I am afraid it will add largely to the work of the lawyers, and for that reason I am strongly opposed to its adoption in its present form. To many, people it would prove a distinct inconvenience. Cheques are often sent to persons living where there are no facilities for presenting them within a reasonable time. Many mining companies, for example, make it a practice to write out cheques in payment of wages and to forward them to the mine manager, who distributes them. To my own knowledge, in many cases the men who receive these cheques have often no facility to present them, and they have frequently to remain outstanding for months. The rights of men so situated might be seriously prejudiced under this clause, and I doubt whether a court of law could be expected to decide with satisfaction to all concerned what under such circumstances, is a reasonable time within which presentation should be made.
– Practice would determine the point.
– I do not think that would govern the question. It is right that regard should be had to usage and custom in interpreting a section, but considerable inconvenience, and often hardship, would arise in applying that principle in a case of this kind. We ought to fix a time limit.
– I do not think the banks would object to that.
– And the public would not. If we fixed a fairly wide time limit, every man receiving a cheque would take ordinary precautions to see that it was presented within a reasonable period.
– As the clause stands, a Judge would have to determine what was “ a reasonable time.”
– Quite so. I do not think it is a fair question to ask any Judge to determine, when the Parliament which makes the law can fix an arbitrary time.
– Would the honorable and learned senator have the time limit printed on the cheque form?
– No. I think that the public would soon discover it.
– If a cheque were sent from Melbourne to the Gulf country and paid into a bank there, some time would necessarily elapse before it could be cleared.
– I think that we could fix a time that would provide for every contingency, and so avoid considerable litigation and hardship.
– In England, many years ago, it was the practice to regard a cheque drawn on a bank within a certain distance of London, as being “ stale “ when not presented fifteen days after being drawn. In Australia, however, the circumstances are very different. I do not think that the banks would object to our fixing a time limit that would enable a cheque to be sent from one part of Australia to another and returned for clearance. Sometimes a cheque that is a year or two old is presented, and in such cases the usual practice is for the bank concerned to regard it as “ stale,” and to refer it to the drawer. If it were possible to fix a time limit, no inconvenience would be suffered by the banking companies, and I think that the general public would be advantaged.
– I must candidly admit that there is some ground for the criticism offered by Senator Clemons. The conditions ruling in Australia are very much different from those appertaining in Great Britain, and certainly wholly dissimilar from those that were under consideration when the Imperial Parliament passed the Act of 1882. I am inclined to think, from my recent study of that enactment and its effect, that the Parliament in passing it had largely in mind what may be described as the transactions of traders. The section corresponding with this clause was not in the original Bill as submitted to the British Parliament, but was inserted in the Lords by way of amendment on the motion of Lord B ram well. The difficulty which traders at home had to encounter was that the common law rule applied with regard to cheques, and drawers remained liable up to six years in respect to cheques that were not presented. That was a most awkward situation, for in many instances persons who had received cheques in payment of an account were in the habit of failing to present them f>r a considerable time. The drawer of a cheque on a bank which subsequently failed, was held not liable at all to the holder, if the cheque had not been presented in a reasonable time; he was discharged for the full amount, although the bank might in the interim have compounded. The decisions of the English Courts as to the question of time would seem to show that this section was regarded as being more applicable to the trading community. Here, however, as Senator Clemons has pointed out, cheques are used for the payment of wages in localities somewhat remote from banking institutions,, and where few opportunities offer for their early presentation. It has been seriously considered in Great Britain whether a delay of six days in presentation does not make a cheque “ stale.” In the circumstances, I am willing to allow the clause to be postponed in order that at a later stage we may submit a proposal designed to meet the varying conditions of the Commonwealth.
Senator St. LEDGER (Queensland) [11.26.] - There is a conflict of interest with regard to the working of this clause between what may be termed the functions of a bank on the one hand, and those of its customers on the; other, and difficulties might arise in the determination of what was a “reasonable time.” I am inclined to think that the object of the clause is to provide that when a cheque is drawn and despatched to the payee, the onus shall be thrown upon the latter of presenting it within a reasonable time. That rule is found very convenient both for bankers and traders,, and my experience is that the term “a reasonsl:le time “ is a very useful one. A jury is sometimes the best judge of what is a reasonable time. The clause is designed to do away with “stale” cheques, and by providing that cheques shall be presented within a reasonable time, we shall give notice to holders that it is their duty to present them as soon as possible. The practice is good for traders, bankers, and their customers.
Clause 80 agreed to.
Clause 8t -
a cheque, drawn on a banker by a customer, has been drawn by the customer with negligence, and
the negligence of the customer has afforded facility for the fraudulent alteration of the amount of the cheque, and
the cheque has been fraudulently altered so as to increase its amount, and (d) the cheque as so altered has, in good faith and without negligence, been paid by the banker, the banker shall not be responsible or incur any liability by reason of having paid the cheque, but shall be entitled to charge the customer with the amount of the cheque as paid by him.
– I would suggest that the words “ a bill or “ should be inserted before the words “ a cheque.” Senator Gould yesterday made a very forcible statement of the difficulties experienced by bankers as the result of the judgment in Marshall v. The Colonial Bank. Similar difficulty might arise in regard to a bill manipulated fraudulently as the cheque was in that case.
– We have a definition of the word “ bill.”
– The honorable senator’s proposal would afford protection to a banker who was a drawer of a bill, but not to a private drawer. This clause is designed to protect bankers. Is the honorable senator desirous of protecting only bankers in respect of bills of exchange?
– No; I would also protect innocent holders. Perhaps the Minister will be able to assist me in carrying out the object I have in view.
– The Minister of Home Affairs has just informed us by way of interjection that this clause is designed to protect bankers. I have hitherto been under the impression that they were very well able to protect themselves, and that if anybody needed protection it was the unfortunate public, who were fleeced by these men.
– If the honorable senator knew as much as I do about banking, he would be aware that a great many persons lay themselves out to defraud bankers.
– The whole scheme of banking is a conspiracy to take in the public. In moving that the Bill be read a second time, the Minister said that it was an attempt to codify the existing laws of the States and to bring them all into line with the Imperial Act of 1882. I find that that Act contains no provision similar to the one now before us.
– I expressly and plainly stated that fact.
– Only two of the States - Queensland and Tasmania - have passed any provision similar to this. The clause now before us is almost identical with a section in the amending Act passed by the Queensland Parliament ; but is very different from the provision in the Tasmanian Statute, which provides that a banker, in order to secure any protection whatever, must show that there has been, not merely negligence, but gross negligence. Can this be said to be a codification of the existing laws?
– The Tasmanian Act was passed only last year.
– Then it is an uptodate one. If -a reactionary Tory Government, such as is always in office in Tasmania, was prepared to pass such a provipion, why should we hesitate to adopt it?
– What did the other Tory place, Queensland, do?
– It passed a measure containing a similar clause to that which we are considering. It was passed in 1905. I am not trying to excuse the Queensland Parliament in any way.
– Does the honorable senator apply the word “ Tory “ to the Queensland Parliament as he does to Tasmania ?
– Undoubtedly I do. Unfortunately for us, we have never had anything but a Tory Government in Queensland, and Tasmania is in just the same position. These people have the most tender care for the banker, but very little for the public. What may arise if we include this provision is that the customer of a bank may be imposed upon, not because of his own negligence, but because of his ignorance of certain business methods. There are comparatively illiterate people who have banking accounts. We have, known of millionaires who were comparatively illiterate. People of this character do not always, perhaps, write the figures on their cheques exactly where they ought to be. There may be collusion between a person getting a cheque from a man of this description and the bank teller. The person to whom the cheque is payable may insert figures and words, take the cheque to the bank, and, with a little collusion with the man behind the counter, be able to defraud the unfortunate customer of the bank. If this Bill became law, it would be held that the customer was responsible, and had to bear the loss. If the clause is to be passed, it should be in the form adopted by the Tasmanian Parliament, providing that the negligence of the bank’s customer must be gross. But is there any good reason for affording extra protection to bankers which is not afforded to them by the English law or by the existing law of four States of the Commonwealth? Is there any good reason for affording banks protection in such a form that it will be possible for unscrupulous individuals, in collusion with bank officers, or even without collusion with them, to “ take down “ an innocent customer? It is the people who require protection, not keen business men like bankers, who are up to every dodge, and who, indeed, are usually the greatest dodgers in the community. It appears to me that the existing law is a good one. Honorable senators opposite are fond of conservative ideas. Here is a good old conservative idea. Let us stick to it. Let us retain the law as it exists in England and in four of the States. At any rate, when we do make an amendment in the law, it should be in a progressive, and nol in a reactionary, direction. It is abundantly clear to me that it is the unfortunate customers of bankers who require protection rather than the banks. Bankers are knowing individuals, whose wits are continually sharpened by attention to the details of business. It is for them to look after their own interests. As a matter of fact, many thousands of the customers of banks are not keen business people. Many people who live in the bush may be fairly well off and have banking accounts, although they may not have enjoyed anything better than an ordinary education. It is no act of negligence on their part if they do not write a cheque in quite the proper manner. It may be a mere act of simplicity.
– Might not an ignorant man, in his simplicity, do something which, in the case of another man, would be gross negligence? How are we to make a law covering all cases?
– I contend that the banker ought to be expected to accept his full share of responsibility. I shall not vote for the clause in its present form. The good sense of the Committee ought to make us realize that it is desirable to protect the interests of the customers of the banks as well as of bankers.
– The clause before us requires grave consideration. I do not think we ought to pass it in its present form. With regard to the law on the question, it appears, from the exposition of the Minister, that the Courts formerly held that, in cases such as are contemplated by the framers of the clause, the drawer of a cheque was liable, but the highest Courts, both in Australia and in England, have more recently decided in the contrary direction. The decisions of the highest Courts were, I presume, based on justice as well as on legal technicalities. We are now asked to transfer the responsibility from the one party to the other. Of course, it maybe held that the question of negligence in any particular case is for the Courts to determine. But I do not think that the customers of banks should be put to the trouble and expense of legal proceedings. I am inclined to think that if I were concerned in a case in which a matter of £,500 was involved, owing to the alteration of a cheque, rather -than contest it with the bank, with the possibility of having to go before a State Court, then to the Full Court, and then, it might be, to the Privy Council or the High Court of Australia. I would lose the money. Possibly it would be cheaper to do so than contest the case with a rich banking corporation. It behoves us to realize, as Senator Givens has properly put it, that it is our duty to protect not’ only banking interests, but the public generally. T am of opinion that some provision should be inserted in the Bill defining more clearly what negligence is. As the law stands, banks have to take, as a trading risk, a certain amount of responsibility in relation to cheques, which may be altered. It is a fair thing that that should be one of their trading risks, and I do not see why we should relieve them of it by imposing upon the person who draws a cheque a greater responsibility than he now has to bear. The drawer of the cheque may perhaps be a person who has not had the advantage of a good commercial education, and the. facilities for determining nice points which might be construed as negligence by a court of law. We should be careful before deciding to transfer the onus from one party to the other.
– We ought to protect the weaker.
– Certainly. The Minister, in my opinion, ought to be prepared to define negligence. It might be <:lone by inserting the word “ gross “ or “ wilful,” which would make the intention of Parliament clearer, and would not have the result of landing innocent parties in expensive litigation with banking corporations.
. The question involved is, I think, one of contributory negligence. Prima facie the object of the clause is that a banker shall not be punished because the drawer of a cheque has been guilty of negligence. In spite of what Senator Givens has said, I think honorable senators will agree with me that it is desirable that bankers should not be punished because of the negligence of the drawer. We ought, however, to be particularly careful to allow no loophole for a banker to be guilty of contributory negligence and yet escape. Our object is to protect both persons - the drawer of the cheque, and the banker upon whom it is drawn - against the man who is ready to commit a fraud.
– Sub-clause d provides for the negligence of the banker.
– Not altogether. It is, I think, possible to pass legislation that to a certain extent will safeguard both the drawer and the banker. Something has been said about negligence, and the desirableness of emphasizing the word by inserting the word “ gross.” Now. the particular provision to which I wish to refer is paragraph d, which reads -
The cheque as so altered has, in good faith and without negligence, been paid by the banker.
To my mind, that is the pith of the whole clause. The question arises - what is negligence on the part of a banker when he pays a cheque which may have been altered? I should say that we might in the clause itself define negligence on the part of the banker as being negligence that is shown by his abstaining from taking any steps whatever to communicate with his client the drawer. I do not think that the hardship would be great upon the payee or upon the banker if we inserted a provision compelling the banker to refer to the drawer in case the banker had any serious doubts about a cheque.
– The banker can always protect himself in that way.
– The banker always does.
– He certainly does not. But he could protect himself by communicating with the drawer.
– How could the banker protect himself in a case like that decided by the High Court, where it was held that the handwriting in the alteration on the cheque was the same as on the unaltered part of it?
– If the banker has any suspicion whatever-
– There was no suspicion in that case.
– If the Court holds that the banker might have suspected a cheque, and might have referred it to the drawer by asking him by telegraph, by telephone, or otherwise, what was the amount of the cheque, the responsibility for negligence should, I consider, rest with the bank. The banker can protect both himself and the drawer at the same time, and it is not impracticable to insert a provision to that effect in, this Bill. Senator Walker said just now that the banker did communicate with .his client, the drawer, when he had any doubt about a cheque. Let me remind him of this circumstance to show how little a banker does refer to the drawer. Take a cheque which, as is often the case in Australia, is made payable to order. The bank incurs no liability, and takes no trouble whatever to ascertain whether the indorsement on the cheque is a forgery or not. If I draw a cheque payable to “ John Smith “ or order, and John Smith does not happen to be a client of the bank, and if any one else chooses to write “ John Smith “ on the back of that cheque, the banker will pay it, because he will have no liability in respect of the correctness ot the indorsement. In practice, bankers never pay the slightest attention to such indorsements, and in the case I have cited any signature of “ John Smith “ makes the cheque valid so far as the bank is concerned.
– The bank would not have the signature of “ John Smith “ to compare
– Of course not; and when I spoke of the desirability of altering the law with regard to indorsements, I had such a case in my mind. It would be vastly to the interests of the community generally, and to the convenience of bankers, if we made such a thing as a cheque payable to order no longer possible. Every man who has to deal with cheques knows that the common practice of making them payable to order gives no security to any one.
– In what way would the honorable senator’s suggestion benefit the community?
– It would save the community from being deluded, as is often the case, by the idea that making a cheque payable to order is a safeguard to some extent. We should be making a great stride if we enacted that there should be only two descriptions of cheques - one payable to the bearer, and the other crossed as not negotiable by either drawer or holder. I should like to submit an amendment in order to carry out that idea, but it is rather difficult to see where to insert it. I am hoping that the Minister will postpone the clause with a view to considering whether we cannot introduce in sub-clause d some words which will throw upon the banker the obligation to communicate with the drawer. Such an amendment would operate as a safeguard to the banker, the client, and the public. I should further be glad if the Minister would give consideration to what reay be regarded, perhaps, as a great innovation in banking practice, namely, the desirability of defining and limiting cheque’s. In my judgment such a restriction would be of considerable benefit to the whole of the mercantile community - to every drawer, every banker, and every holder of a cheque.
– As to alleged negligence on the part of bankers, I can say that I know no business men who take greater care than they to ascertain whether a cheque or a bill is in order. Nothing is more frequent than for a banker to communicate with the drawer before returning a cheque marked “refer to drawer” or “n.s.f.” - not sufficient funds.
– Senator Walker issurely confusing two things. Both these markings mean the same thing, and are a variation of a banker’s method of indicating that a cheque is not good.
– Sometimes the marking “ refer to drawer “ is made because of irregularities; but “n.s.f.” is a bold marking, because it shows that the drawer’s credit is not good.
– It shows that the bank has no money to pay the cheque. “ Refer to drawer “ is only a polite .way of saying that there are not sufficient funds te meet the cheque.
– To my knowledge bankers, as a rule - though there may be a few exceptions - take every reasonable care to ascertain whether there are any irregularities in documents ; and I should not be fair to my old friends if I did not say that on their behalf. Senator Givens has, of course, his own opinion of bankers, and his opinions are pretty stubborn sometimes y but, in my judgment, banks, as a rule, are instruments of kindliness in the community Bankers are not avaricious; I do not know any profession in Australia - except, perhaps, that of a clergyman or doctor - where those engaged in it work so hard for the general public without charge as in banking. In country districts especially the banker is frequently asked for his assistance and advice; and bankers really, in one sense, are a philanthropic body of men.
– It will require a great deal of care so to word this clause as to do justice between the customer - whose case has been so strongly put by Senator - Givens - and the banker. I am inclined to attach a great deal of importance to the views of Senator Givens considering the circumstances of Australia. The difficulty we have before us is to do absolute justice to the bank on the one hand and to the customer on the other. Senator Givens has pointed out the dangers that might arise in the case of ignorant or illiterate persons, or others not familiar with banking business, in that, through no fault of their own, their banking account might be very seriously ‘ de- pleted. A customer of a bank is entitled to have his account well protected both by the bank and by statutory enactment ; but we cannot disregard recent litigation, which shows that banks have suffered considerable loss. Senator Givens rather weakened his argument - which appeared strong to me at first - by conveying with it an implication that bankers are very well able to take care of themselves, and that they, to some extent, exist for the purpose of fleecing the community. Banks could not exist if that were the case. I hope the consideration of the clause will be postponed, because I should like to consider fully the elaborate judgment in the case of Marshall v. The Colonial Bank, in which the whole banking law in this connexion was reviewed bv the highest tribunal in the Empire. As to Senator Clemons’ remarks about “ negligence “ and “ gross negligence,” I think I am correct in saying that there is no difference, practical or legal, between the two. One of the most eminent of the law lords - Lord Bramwell, who was in his early days a noted banker - characterized the difference by saying that the word “ gross” was simply a term of vituperation, and had no legal effect. This clause is most important, and it would be well for honorable senators to have time to consider it in order that thev may be able to frame a provision to meet the circumstances. We shall not be doing our duty to the community unless we carefully consider the position of the customer. As Senator O’Loghlin said, bankers, like all other business men, take a certain risk, and we cannot make ourselves absolute insurers against those risks ; but my hope is that we may be able to evolve some clause which will be just to both parties. Honorable senators will doubtless give due weight to Senator Givens’ arguments on behalf of the customers, and also to the representations of an eminent authority like Senator Walker in regard to the protection of bankers. The proper course would, I think, be to postpone the consideration of the clause.
– While not desiring to push on the consideration of the clause at this sitting, and, ready as I am to accede to the wish generally expressed that it should be postponed, I would like, even at this juncture, to say a few words on some of the arguments already adduced. Senator Givens was hardly as fair as he might have been when he imputed that I had practically asked the Committee to accept this Bill because it was wholly a transcription of the Imperial enactment of 1882. As a matter of fact, the Imperial enactment does not contain any provision similar to that now before the Committee ; and in my speech on the second reading I plainly pointed out that there was, amongst others, this divergence. I then gave, as fully as I could, the reasons for incorporating this particular clause in the Bill. ‘ Senator Givens has pointed out that in only two of the States has a similar enactment been passed since the decision in Marshall v. The Colonial Bank. I can hardly think Senator Givens could have been present when Senator Symon spoke on the motion for the second reading. The honorable and learned senator, who has had an opportunity to read carefully the judgment delivered in Marshall v. The Colonial Bank - an advantage which neither the last speaker nor I have had - pointed out that the decision there given does not alter the law, but simply declares what the law has been and is - that, in effect, what was determined in that case was that there was no evidence of negligence on the part of the plaintiff, and, that being so, the loss should not fall on the plaintiff but on the bank. If that is the correct interpretation - and I have no reason to doubt that it is - the reason for there having been no enactment of the kind passed in any of the States but two, since the judgment was given, may be that those in authority regarded such an enactment as unnecessary. There are provisions in the Bill, being as it is a code, which are really ° in one respect not necessary for the purpose of enacting the law; they simply declare in a convenient form what the law is, so that anybody who desires may find the law in the Statute itself. For instance, bills of exchange, and so forth, are defined in the earlier clauses ; but whether these definitions appeared there or not the law would be as expressed there.
– Common law?
– Yes ; if, as I say, Senator Symon’s interpretation of the judgment is correct, we, in this clause, are only setting out in black and white what is the law.
– Where is the necessity ?
– It is immediately available whenever we proceed to codify the law. Many enactments in a code are not the original foundation of the law itself. They are rather expressive tha.ni enactive. That may be the reason why in some of the States no such provision has been made as in Queensland and Tasmania. They may have thought, “As the Court has only declared what the law is, and as that will be the law whether we enact it or not, there is no necessity for us to put it on the statute-book.” All honorable senators who have had to do any reading of law will admit that it would be very difficult to set out in the form of an enactment, as suggested by Senator O’Loghlin, what constitutes negligence in such a way as to cover all possible cases that might arise. There are very bulky treatises on the law of negligence, and when one has read them most carefully he comes to the conclusion that negligence can only be determined by the most careful consideration of the facts in every case in which it is alleged. With regard to Senator Clemons’ suggestion to have something in the nature of a definition of negligence, definitions in matters of that kind are rather dangerous.
– I did not say that we should define “ negligence.” Heaven forbid that I should try. What I did say was that we might indicate that there would Le contributory negligence on the part of a banker if he did not give notice to the drawer.
– To do even that would be to run very grave risks. We might by making such a provision restrict the cases of negligence on the part of a banker which would operate to saddle him with the responsibility.
– If the banker gave the drawer notice there would be no harm done. It could be restricted to that.
– I am offering my criticism of the honorable senator’s suggestion in the same friendly spirit as criticisms of the Bill have been offered, because I know we want to arrive at conclusions fair to banker and customer. If we imposed upon the banker, in cases where he might suspect that everything was not right, the obligation of referring, to the drawer - not of marking the cheque “Refer to drawer,” as Senator Walker seemed to imagine, but of referring to the drawer for his own information, guidance, and protection - the banker might find himself between Satan and the deep sea. He might suspect that a customer’s cheque was not all right, and refer to the drawer, feeling in fact bound to do so to protect himself. This would hold up the payment of the cheque, and the drawer might demand to know from him what business he had to delay the payment of his cheque and so affect his credit, as in those few hours the other parties who expected the cheque ta be honoured immediately upon presentation would perhaps be wondering whether he had to make good the funds in the banker’s hands in order to meet it. Consequently a banker might be placed in a most awkward position through attempting to comply with the requirements of the law, and the customer might take his account to another institution.
– That is possible, but the customer would scarcely blame the banker for looking after his interests.
– Some customers would.
-Col. Gould. - Some customers would contemplate bringing an action against the banker.
– That, also, is quite possible. A provision such as Senator Clemons suggests might seriously hamper banking operations, to the prejudice both of the banker and the customer. In making provisions of this kind, although we mav not be departing from the existing law, we should express them in such terms in respect of each of the parties affected that neither would gain an undue advantage over the other. I am prepared to postpone the clause, but, in the meantime, I ask honorable senators to give to ray representations the same consideration as I intend to give to theirs. The proposal which Senator Clemons contemplates submitting to the Committee, to confine cheques to those payable to bearer and those not negotiable, would involve a very radical departure from the existing state of affairs, and we should1 require the very fullest justification before we adopted it. I know the delusion prevails in the minds of many people, that by issuing a cheque payable to order they thereby protect themselves against its being cashed by somebody who is not properly entitled to it.
– Most people think that by making a cheque payable to order, they are practically safeguarding themselves against their own loss, although, as the Minister knows, it is not so.
– I know that opinion is held very widely. I held it myself until some years ago, when, in reading up the matter, I found it was necessary. in order to protect myself, to exercise much more care in issuing a cheque, especially when sending it through the post, with a chance of its miscarrying. Still we might not meet the whole of the difficulties, even if we enacted that there should be issued only cheques payable to bearer, and cheques which would be regarded as not negotiable. The law is, and the Courts have held so, that there is a distinction between the negotiability and transferability of cheques. It has been held that, although a cheque may be marked “ Not negotiable,” it is still transferable by delivery, but there is some distinction as to the measure of right which the transferee of a cheque which- is marked “ Not negotiable “ holds, and the measure of right possessed by the transferree of an ordinary cheque, payable to bearer. Transferability and negotiability are not synonymous terms, and before making any provision restricting the classes of cheques to open ones payable to bearer and others that are not negotiable, it will be necessary to pay considerable attention to the recognised distinction between those terms. I hope Senator Clemons will bring in any such amendment at a later date. I will offer no objection to his submitting it when the clause is brought up again for consideration. I hope that in any amendment the honorable senator does propose, due regard will be first paid to the distinction I have indicated.
– Before the clause is postponed, I should like, following the precedent set by the President, to take the opportunity of saying a few words on it myself. It needs redrafting. In a clause of this character each of the paragraphs can be held as governing the condition in the last part of the clause. The first and governing word of the whole clause is the word “ Where.” Passing over paragraphs a and b, we come to paragraph c. Reading that with the governing word of the clause, we have -
Where …. the cheque has been fraudulently altered so as to increase its amount -
Next comes in paragraph d, and then follows - the banker shall not be responsible or incur any liability by reason of having paid the cheque but shall be entitled to charge the customer with the amount of the cheque as paid by him.
It seems to me that under that provision a court might hold that, if a cheque had been fraudulently altered, even if the fraud was patent, still the banker would not be liable.
-Col. Gould. - All the conditions in the four paragraphs must go together.
– I read it that theremust be negligence on the part of the customer, and no negligence on’ the part of the banker.
– Honorable senatorsare reading the clause as if each of the paragraphs was governed by the word “ negligence,” but I think each of them? stands by itself. To make Senator Dobson’s contention correct, the clause should begin as follows -
Where a cheque drawn on a banker by a customer has been drawn by the customer with negligence, and -
Then could follow paragraphs b, c, and d, and the conclusion of the clause. In that way, negligence would govern each ot the paragraphs, whereas in the clause as drafted the condition as to negligence is not provided for in paragraph c.
– Fraudulent alteration is provided for in paragraph c.
– Surely if fraud is patent the banker should not be relieved of his liability. Even the strongest advocate of the rights of banks would scarcely contend that. If, however, a cheque is fraudulently altered owing to the negligence of a customer, and that alteration is not easily discoverable, then the banker should be relieved of his liability. As the Government intend to postpone the clause, they might take into consideration the question of reconstructing it in the way I have suggested.
Senator Lt.-Col. GOULD (New South Wales) [12.14]. - Senator Pearce’s remarks are quite in accord with the opinions of honorable senators as to the principle on which the clause should be drawn, but, to my mind, it appears necessary for all the four things provided for in paragraphs a, b, c, and d to happen together before the banker can be held to be relieved from his liability. First of all, the cheque must be drawn by the customer with negligence, that negligence must have afforded facility for fraudulent alteration, and the cheque must be fraudulently altered, and then paid in good faith without negligence on the part of the banker. Consequently, all four of those conditions must concur, and if any one of them was not shown to exist, this clause would not be, nor should it be, of any value to the banker. It is only in these cases that the banker should be relieved of responsibility.
I think that any court would construe the clause to mean that the four conditions must have been complied with to relieve the banker of responsibility. I understand, however, that it is thought by some honorable senators that it may be desirable to make an alteration in the principle of the law, and there can therefore be no objection to the postponement of the clause for further inquiry into and consideration of the existing practice, and an examination of the cases which have been referred to. I believe that the result will be that the contention of the Minister as to the propriety of the clause will be indorsed.
– To my mind a mistake is being made in this clause in allowing the banker to be the first judge of the customer’s negligence. If a customer draws a cheque for .£50, and the banker pays out £250, the latter can, when the customer complains, say to him, “ The mistake was due to your negligence; but if you think that we were to blame you have your remedy at 4aw.” A poor man would not be able to proceed to his legal remedy in such a case, because all his money would have gone.
-Col. Gould. - In any case, if there is a dispute, there must be a report to the Courts.
– Yes ; but I think that the banker should, in the first instance, refund the excess, and then take his customer to the Court to prove that the negligence was the customer’s. Banks would hesitate about taking small customers into the Court, and possibly ruining them.
– In addressing myself to the motion for the second reading, I was careful to say that I thought that the interests of customers should be protected. That remark was prompted by the wording of this clause. I am inclined to agree with Senator Givens that it would be an improvement to insert the word “gross” before the word “negligence” in paragraph a. Many customers are very ignorant, and should be protected to some extent.
– The measure of care required from a banker in knowingly dealing with an ignorant customer is greater than he would have to show in dealing with a well-informed customer.
– That is only right. I am glad that the clause is to be postponed. I do not agree with Senator Clemons that cheques should not be made payable to order. To make it impossible to draw cheques to order would cause a great interference with ordinary business arrangements. There is the risk of a cheque being wrongly indorsed ; but a similar risk is run when a cheque is made payable to “ John Smith,” because any John Smith can then present it.
– The impression that if a dispute is taken into a court of law the onus of proving that there had not been negligence would be on the customer and not on the bank is erroneous.
– Senator Chataway contended that the onus of instituting proceedings should be on the bank, and that, in the meanwhile, the customer should be refunded any money alleged to have been wrongly paid.
– The clause may leave it doubtful as to who should commence litigation ; but care should be take to retain the provision that when legal proceedings have been instituted, it shall be for the banker to prove that he has complied with all the conditions set forth in the clause. Senator Chataway’s suggestion is one that might well be considered; but the banker should not be relieved of responsibility unless he had complied with the four conditions to which I refer.
Clauses 82 to 95 agreed to.
Clause 96 -
A thing is deemed to be done in good faith, within the meaning of this Act, where it is in fact done honestly, whether it is done negligently or not.
.- I should like an explanation from the Minister as to the meaning of this clause. It is not very plain to me.
– The term “ good faith “ occurs in various parts of the measure, and the clause practically defines its meaning. The term is used chiefly in regard to the taking of cheques or other negotiable instruments in the ordinary transactions of business. Ordinarily a man in passing a cheque on to another cannot pass with it a better title than he himself possesses; but this provision is modified in some instances, where the receiver takes the cheque in good faith.
– How does this clause read with respect to clause 81 ? If a banker was guilty of negligence, but there was no doubt as to his honesty, would he be deemed to have acted in good faith ?
– Clause 81 speaks of the payment made by the banker as made in “ good faith and without negligence.” The two things are quite distinct. By good faith is meant the absence of dishonesty. We wish that there shall be no confusion between dishonesty and negligence.
Clause agreed to.
Clause 97 -
– It is provided in the first part of the clause that one person may sign an instrument for another person. I desire to ask the Minister whether it is not necessary and proper to provide that when a person is signing on .behalf of another person he shall show his authority on the instrument.
– He generally does.
– There is nothing in the provision to show that it will be necessary.
– No; but it is palpable on the face of the clause. Where a bill is drawn by A on B in some distant place, and the bill is forwarded to be accepted by B, it may be that B has gone on a trip to Europe, but his agent or the person who is appointed by him to carry out his transaction may still sign it on his behalf, and then A will not be entitled to turn round and say to B, “I drew upon you, and expected you to accept, but you have not accepted, and somebody else has accepted in your name.” The clause relieves him of any responsibility for any alleged breach of contract. It enables the agent simply to sign for a party, and that to be just as effective so far as the other party is concerned, so long as the agent had authority to sign. Sub-clause 1 says -
Where, by this Act, any instrument or writing is required to be signed by any person.
In many instances that would be done by a party, if the principal were absent, under a power of attorney, and would be so expressed. In other instances it would be done as agent, and would be so expressed.
– The authority resign is generally shown on the document; but under the clause there is no necessity to do that.
– There is no necessity. Is it conceivable that a man would sign under such circumstances without showing that he was doing so? What is intended by the clause is to prevent the other party from getting up and saying, “ You did not accept, or you did not sign > somebody else did.” We provide that that shall be just as good if he had authority, and that the other party shall not hold the party for whom the agent signed liable on a mere technicality.
Clause agreed to.
Clause 98 postponed.
Clause 99 agreed to.
Clause 100 -
Where a dishonoured bill or note is authorized or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate, signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill.
– I think it will be seen that an amendment in this clause is required. I intend to move an amendment in the second schedule which is mentioned in the clause.
– I shall have to move the postponement of the schedules until after the postponed clauses have been dealt with. In any event - whether other clauses were postponed or not - I should have to move for a postponement of schedule 1, because it is necessary to see that our provisions are in full accord with the States Acts, referring not to bank holidays, but to bank half holidays
– I would call the attention of the Committee to the fact that the schedules cannot be considered until after the postponed clauses have been dealt with.
– In this clause I have an amendment to move which I think will be necessary to give effect to an amendment which I intended to move in schedule 2. It is one which I believe will specially commend itself to honorable senators on the other side. At all times they have railed against the tyranny of trade unions, and declaimed for the utmost liberty to their beloved free labour. I want free labour in law. If I am able to do an act, why should 1 be compelled to go to a lawyer, and get him to do it for me? I ask the Committee to consider what need there is to retain that portion of the clause which would compel a man, in protesting a bill, to obtain the services of a notary public if the services of such a person are available. Why cannot a man be allowed to do the thing for himself in the ordinary way of business, and with the assistance of any witnesses whom he may be able to obtain ?
– In a number of places he has to do that.
-Yes; and in schedule 2 the Bill very properly provides a form which a man has. to fill, in order to enable him to do the thing legally, but he is first compelled to make a declaration where there is no notary public that the services of a notary public are not available. In other words, that a lawyer is not available, because I understand that all notaries public are lawyers.
– I have never known a notary public to advertise who was not a lawyer. But, whether notaries public are lawyers or not, why should I be compelled to go to a notary public when I can do the work for myself?
– The honorable senator is not compelled. It is the bank which is compelled to go to a notary public.
– I wish to protect the banker equally with every one else from being compelled to obtain the services of a person when his services are really not necessary. Why should we have a close corporation of lawyers or notaries public? T<o one knows better than does Senator St. Ledger that fully 90 per cent, of notaries public are lawyers. I move -
That the following words be left out, “ and the services of a notary cannot be obtained at the place where the bill is dishonoured,” lines 2 to 4.
– Apparently Senator Givens has not recognised the very great importance to persons in, say, Great Britain, of the provision that, when they have a bill dishonoured here, they can refer to an official whose protest will be recognised in a court.
– It applies only to foreign bills.
-It applies, I take it, to foreign ‘ bills. But in the United
Kingdom the signature and seal of a notary public are evidence, when the banker calls upon the person whose draft has been negotiated, that such draft had been dishonoured. The provision is absolutely necessary for the protection of bankers and others, and it would be absurd to limit what is the universal practice in Europe.
– The amendment will not limit it.
– Under the amendment persons could only employ a notary in cases of necessity.
– The amendment will not interfere with that.
– The bankers will naturally go to the notaries public. I have known many cases in London in which notaries were not lawyers. The amendment proposed by Senator Givens would interfere in a matter of which he has very little practical knowledge. No banker wishes to put any person to ‘unnecessary expense, but he naturally desires to be in a position, if necessary, to take proceedings in London against the individual who has negotiated a dishonoured draft.
– If I were not a member of the legal profession, I should say it was highly desirable that the amendment should be adopted. I can- scarcely conceive of a more fruitful cause of litigation than to deprive people of the protection afforded by this clause. Instead of protecting the public, as Senator Givens imagines his proposal would do, it would simply add to the work of the lawyers. It is an old maxim that the less we have to do with lawyers the more work we make for them.
– I would point out to Senator Givens that, while it may be very desirable to have certain work within the Commonwealth which is usually performed by a notary done by householders, the work of a notary is very often for the purpose of authenticating a document drawn outside our own borders. If under the law of this country we did not require him to attest these documents, it is just possible that we might endanger the rights of our own citizens in respect of international transactions. The law of other countries requires in cases of dishonoured bills that notaries shall attest the particular dishonour, and those countries look to us to make a corresponding provision in our law, in order that there may be that reciprocal recognition of those proceedings which must exist if international financial transactions are to rest upon a good basis. I would like to draw the attention of honorable senators to Wharton’s Law Lexicon, in which, under the heading of “ Notary Public,” the following appears -
An officer who takes notes of anything which may concern the public; he attests deeds or writings to make them authentic in another country; but principally in mercantile affairs; as to make protests of bills of exchange, &c.
There are corresponding officers in other countries, and the laws of evidence in Great Britain and those countries make the official seal of a notary abroad receivable as evidence -per se. in their own Courts. They recognise that we require the authentication of a notary in precisely similar circumstances to those in which they require it in their own country in connexion with documents which come into Australia. It would not be well to persist in the amendment, because it would have the effect of disturbing this uniformity with the legislation of Great Britain and other countries where they have mercantile codes, and thus might lead to an abridgement of the rights that we reciprocally enjoy with those countries in transactions of this character. Although I recognise that - as Senator Givens has pointed out - the amendment would leave the clause permissive, and that under its operation it would still be open to those who wish to employ a notary to do so, it would nevertheless disturb the harmonious relations which exist’ between the Commonwealth and other countries where this reciprocal arrangement obtains.
– Disturb the harmonious relations which exist between the close corporation of lawyers and notaries throughout the civilized world.
– I do not think that the honorable senator means that statement seriously. I ask him not to persist with the amendment which may have very grave consequences.
– I fail to follow the exposition of the Minister of Home Affairs. If in connexion with bills affecting other countries it is necessary to have the signature of a notary public, and if, with the amendment proposed by Senator Givens, the clause would still provide for that, it seems to me that it should be adopted.
– A notary’s services are only required to protest foreign bills of exchange.
– I shall certainly support the amendment. The clause would then provide that in certain cases, if the services of a notary are not available, it shall be perfectly competent for the party interested to apply to householders to protest dishonoured bills. If the signature of a notary be requisite in connexion with foreign bills of exchange, let us make definite provision for it in the clause.
– I think that the proposal of Senator Givens is a very fair one - indeed it would constitute quite a refreshing departure from the practice of most people in running to a lawyer upon the slightest provocation, with a view to getting them out of trouble either real or imaginary. While the honorable senator was speaking, an example came prominently before my mind of the way in which lawyers are prone to fleece their clients. In this case a lawyer in a good way of business sought to rob a client merely because he was called upon to sign his name to attest a document. It happened in this way : A young fellow from this State - who, by the way, is a very eminent lawyer to-day - went to Western Australia, where he was engaged in effecting a transfer of his mother’s property In the course of the transaction, a lawyer’s signature was required under the Act. The young man visited’ a lawyer, and, after obtaining his signature, inquired what was the fee. The lawyer replied that it was two guineas. The young man, who had already qualified for the Bar in “Victoria, knew exactly what the lawyer should be paid, and accordingly asked, “ Is that the usual fee here?” Thereupon the lawyer turned over the pages of the document he had signed, and said, “ Oh, we will make it 2s. 6d.” He suddenly reduced his fee from two guineas to 2s. 6d. To mv mind it is about time that we made a violent departure from the practice which we have hitherto followed. For the sake of achieving uniformity, it is quite clear that, in this Bill, we are making a distinction between the man who is so situated that he can avail himself of the services of a notary and the individual who cannot do so. As was pointed out by Senator O’Loghlin, every person is expected to be able to look after his own affairs, and if a man is dealing with bills which must go to foreign part’s he is very likely, for his own security, to have it attested by a notary public.
– My amendment would not prevent that.
– I quite understand that. There will be very few of these Bills in which such attestation will be required, and it is quite time that the innovation proposed should be introduced.
– The debate on my amendment has convinced me of the heroic efforts of members of the legal profession, notaries public, and their class, to surround their union with every possible safeguard against the intrusion of outsiders. Even unionists of this class on this side of the world are careful to” protect the interests of their brethren on the other side.
– Senator Givens does not believe in unionism?
– I do, but I do not believe in tyrannical unions, the members of which will not permit the free admittance of men who are capable of doing the work done by themselves. A man cannot join the legal profession unless he becomes an articled clerk to one of the legal sharks who has already been in business for a number of years, and until he has paid a considerable fee. We sometimes hear talk of the entrance fees charged by labour unions, but they are not a circumstance to the fees which must be paid to legal sharks before a man can join their union.
– In other words, the man who wishes to become a shark must be taught by another shark !
– My amendment does not prevent any one going to a notary .public if he desires to do so, but I wish that any person should have the right to do this business for- himself if he so elects. I shall not labour the matter further, but confidently leave the amendment to the decision of the Committee.
– There seems to be some misconception on the part of honorable senators who have supported the amendment. I repeat that it is because our law, as does the law of other countries, requires in certain circumstances the authentication of documents by notaries public that we have with them reciprocal recognition in our respective Courts.
– An exception is recognised in this clause.
– The exception is recognised elsewhere. We have a like pro vision to what is in existence in other countries with regard to bills of exchange. Senator O’Loghlin, and I think Senator Lynch also, seem to be under the impression that it is required in regard to our local affairs. That is not so. Inland bills of exchange .are bills drawn or made by people within Australasia, which includes not only the six States of the Commonwealth, but also Fiji and New Zealand. If honorable senators will turn to clause 56 of the Bill they will find that it is provided that -
Where an inland bill has been dishonoured it may, if the holder think fit, be noted for nonacceptance or non-payment, as the case may be ; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser.
So that the clause we are now discussing is expressly confined to foreign bills of exchange, which, as Senator Lynch has admitted, comprise a very small percentage of the bills which will be affected by our Act. In the circumstances, is it desirable that we should depart in this radical manner from the recognised provision of the law for the purpose of a few bills of exchange, and possibly deprive our own people trading with foreign countries of the advantage of the recognition they have in those countries if these protests are so authenticated ?
– But the amendment would not deprive them of it.
– I have just pointed out that the basis of the reciprocal recognition is the similarity of the legislation in the two countries. Sub-clause 2 of clause 56 provides that -
Where a foreign bill appearing on the face of it to be such has been dishonoured by nonacceptance, it must be duly protested for nonacceptance, and where such a bill, which has not been previously dishonoured by nonacceptance, is dishonoured by non-payment, it must be duly protested for non-payment.
So that this protest applies to what are called foreign bills only, and I urge the Committee not to disturb the existing state of affairs, and thus endanger the rights we already .enjoy. As a matter of fact, most of the foreign bills relate to international transactions - if I may so describe commercial transactions between residents of Australia and residents of Great Britain as well as of European countries - by persons in a large way of business, or great financial corporations, who can very well protect themselves so far as the lawyers are concerned, and ,are not likely to be imposed upon because of lack of experience. The amendment would possibly endanger the recognition of protests that we have at present in foreign countries when they are authenticated in the way proposed in the Bill. I ask Senator Givens not to press his amendment.
– I wonder whether Senator Givens will be prepared to modify, or even to go to the extent of withdrawing, his amendment if he is assured that a notary is not necessarily a member of the class against which he exhibits so much prejudice. A man may be a notary without being a lawyer.
– Ninety per cent. of the notaries are lawyers.
– The fact that the provision as it stands carries with it reciprocity should be sufficient to recommend it.
– The fees would be levied for the most part upon merchant princes.
– The fees would certainly be levied on aclass well able to pay them.
– The merchants will be the persons most concerned if the proposed alteration is made.
– I believe there can be no doubt that the merchants are the persons who would be most anxious to preserve this form of attestation.
Sitting suspended from 1 to 2 p.m.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority … … 1
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 101 agreed to.
The Acting Clerk laid upon the tablethe following paper -
Return to an Order of the Senate dated10th July, 1907, in regard to the Regulations under the Defence Acts respecting military clothing.
– I move -
That the Bill be now read a second time.
Honorable senators will recognise that this is practically a transcript of a Bill passed by the Senate in the last Parliament. Anhonorable senator, as a private member, introduced a measure relating to this question in October, 1904, and after it had been read a second time it was referred by the. Senate to the Standing Orders Committee. That Committee, having considered the Bill, brought up a report, the effect of which was that as it stood it was notin the complete form in which such a measure should be submitted to and passed by the Parliament. The Standing OrdersCommittee made some suggestions, and submitted with its report a Bill prepared by the parliamentary draftsman, incorporating the amendments which it considered necessary. The report is a very brief one, and I propose to refresh the memory’ of honorable senators by reading it. It simply states that- -
The Committee, after due consideration, advise the Senate to proceed with the consideration of the Bill, but that its scope should be enlarged by the addition of clauses dealing with the whole matter of the summoning and examination of witnesses.
To do this clauses will have to be inserted for the punishment of witnesses -
who do not attend when summoned ;
who refuse to be sworn ;
who refuse to answer questions.
The following paragraph of the report is important, as showing the necessity for a measure of this kind, although our powers, rights, privileges, and immunities are declared by the Constitution to be those of the British House of Commons until we otherwise declare -
Although the Committee consider that both the Senate and the House of Representatives andthe Committees of either House have power, under the Constitution, to administer oaths, and that the Senate and the House of Representatives have power respectively to deal with any witness who refuses to attend, to be sworn, or to answer questions, they do not consider that the time of Parliament should be taken up by matters of this nature, but that the Courts are better constituted to adjudicate on such matters.
The High Court has no original jurisdiction,
And it is doubtful if Standing Orders could confer jurisdiction on State Courts.
The parliamentary* drafting office has prepared a Bill embodying the necessary amendments, which is herewith submitted.
That Bill took the place of the original one submitted by Senator Neild. It was discussed on the second reading, and passed through Committee. It went to the House of Representatives where its first reading was moved, but I think it got no further. As iL is impossible to deal with this as a lapsed Bill owing to the intervention of a general election, the measure is again submitted to the Senate. It is practically a transcript of the Bill formerly passed. 1 say “practically,” because there have been two verbal alterations in clauses 9 and 14. In the concluding words of the first paragraph of each of those clauses occurred the words, “he shall be guilty of an offence against this Act.” In this Bill we use the words “ he shall be guilty of an indictable offence.” The amended form has been adopted in conformity with the general wording of the Bill.
– Does the Bill extend to Royal Commissions?
– That is most important.
– The Bill deals only with parliamentary witnesses. A Royal Commission may not consist of Members of Parliament, nor need it be originated in Parliament.
– Then this is not the Bill which is intended to meet a well-known case ?
– No; we propose to put a witness who appears before a Royal Commission in the same position both as regards responsibilities and rights as a witness who comes before a parliamentary Committee.
– Will the Government introduce a. distinct Bill?
– Yes, if necessary. We are now asking the Senate to re-affirm what it passed in the last Parliament.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 5 agreed to.
Clause 6 (Warrant incase of disobedience of summons).
.- This clause provides that the warrant may be executed by a person to whom it is addressed, but it also gives him power to appoint another person. We ought to be careful about giving such powers to irresponsible people. I see no objection to giving the power to the person to whom the warrant is addressed, but there is a danger in enabling him to hand over the power to another. «.
– - It is the usual power which a sheriff has and also a bailiff.
– It is quite right.
Clause agreed to.
Clause 7 -
Any witness who, being apprehended by virtue of a warrant of apprehension issued under this Act, escapes from custody, shall be guilty of an indictable offence.
Penalty : Two years’ imprisonment.
. An offence committed under this clause may be of a minor description worthy of a penalty of 5s., but the clause makes the offender punishable by a maximum imprisonment of two years.
– That is for resisting the execution of the law, a very serious offence.
– A very serious offence may be committed under the clause.
– I have no objection to a monetary penalty, but imprisonment for two years seems to be too great.
– A person can avoid it by not escaping.
– If there is to be no control over a witness the Bill is of no use.
– I think that the penalty is too great.
– I agree that the penalty imposed for escaping from custody is rather severe. It is quite a natural thing for a man to desire to escape from custody, and if he succeeds in escaping, I do not see why he should be penalized to the extent suggested. While it is proposed to impose a penalty of two years’ imprisonment on an apprehended witness who may escape from custody, no punishment is provided for any laxity there may be on the part of the custodian whose duty it is to keep his prisoner secure. If a witness succeeds in escaping, then I say, “ Good luck to him ! “ I quite agree with Senator Findley ‘ that, although two years is to be the maximum punishment, it is possible that maximum may be imposed.
– According to the clause, the maximum is the minimum.
– Yes, it -is evidently a standard. We ought not to pass clauses the meaning of which is not quite clear. If a person who escapes from custody has to suffer some penalty, let us say what that penalty shall be. At any rate, in my opinion, two years’ imprisonment is too severe a, punishment; and we might well consider the wisdom of modifying this provision.
– What is provided in this clause is a penalty for the offence of escaping from custody ; and such an offence may be just as grave whether the matter in respect of which the witness is desired is of much or less importance. It may be only natural to feel a certain amount of sympathy for an individual who escapes from custody, but the case in which the witness is required may be of the gravest importance to the Commonwealth or to the individual ; and it must be remembered that he will be in custody under warrant. His escape, although satisfactory to himself, might be disastrous to those concerned in the completion of a particular inquiry, because, while he may escape for his own benefit and pleasure, his absence might prove a serious disadvantage to the community generally.
– He constitutes himself a rebel.
– Exactly ; and he rebels against the sifting of a matter of, perhaps, great public or private importance. I would point out to Senator Needham that, according to section 3 of the Acts Interpretation Act 1904, any penalty set forth as in this clause, in relation to either a fine or imprisonment, is the maximum penalty. In the States Acts the ordinary form was to state that a penalty shall be “ not exceeding “ such an amount, or so much imprisonment ; but the form adopted in this clause has been used in Commonwealth Acts ever since the Customs Act was introduced. Cases of escape may be so slight in their nature, that imprisonment for a few minutes or an hour might vindicate the law; but, on the other hand, there may be cases of the greatest gravity, and the maximum penalty must be made commensurate with the possibilities, leaving those who have the duty of enforcing the law to impose a penalty in proportion to the offence.
– When a man is in custody, why not keep him secure?
– If a man in custody were enabled to escape by the laxity of his custodian, we may take it for granted that the latter would not go unpunished, but would be open to disration or, it might be, to the loss of his office. However, this Bill deals exclusively with witnesses.
Clause agreed to.
Clause 8 -
Whoever assaults, resists, molests, or obstructs any person in the execution of a warrant of apprehension issued under this Act shall be guilty of an indictable offence.
Penalty : Two years’ imprisonment.
.- In my opinion, the penalty imposed under this clause is most severe.
– But what if the assault be a violent one?
– The placing of the hand on a person constitutes an assault.
– In such case, I suppose the penalty would be nominal.
-Although we know the meaning of the word “ obstruction “ in a parliamentary sense, I should like to have a definition of the word “ obstructs “ as used in this clause. In the matter of punishment this clause puts too great a power in the hands of the Court.
, - The offence here indicated is one of the most serious that we can conceive. It is a refusal on the (part of a witness, called by Parliament, or a parliamentary Committee, to give evidence on matters which may be of the most vital importance to the whole Commonwealth. There is sometimes great difficulty in inducing witnesses to attend inquiries of the kind. For instance, we might appoint a Select Committee to inquire into the advisability of unifying the industrial legislation of the Commonwealth, and it might be desirable that witnesses should attend, and reveal the conditions of their businesses. The evidence of those witnesses might be absolutely necessary for the perfect fulfilment of the duties of the Committee, and if they refused to attend, and resisted the execution of a warrant, they would practically place themselves in the position of rebels and traitors to their country. There was an instance recently in the United States of the wealthiest man in the world refusing to obey a summons to attend a Court. That was an enormity that should have been considered intolerable, and have led to some effort to secure his attendance at the Court. It did not do so in America. We are taking steps here to insure that we shall have that control in questions of national importance. To provide two years’ imprisonment only means that if a man will not comply with the laws made in the interests of his country he shall be so punished. There is no need for him to resist or to assault the officers who are executing the law, or for any other person in his interest or behalf to resist the law. If they do, we must take sufficient power to make it dangerous for them.
Clause agreed to.
Clause 9 agreed to.
Clause 10 -
Whoever, by act or omission, dissuades or prevents any witness from obeying a summons under this Act shall be guilty of an indictable offence.
Penalty : Two years’ imprisonment.
– Regarding the words, “By act or omission,” a summons to attend may be served at a man’s residence, and if his wife forgets to hand it over to him, or to notify him of the fact, she may, under this clause, become liable for an indictable offence. If she is convicted, and punished even with an imprisonment of only five minutes, would that deprive her of any civil rights?
– I am not familiar with the different States laws with regard to the deprivation of rights through conviction and imprisonment, but my honorable colleague tells me that in Victoria there is provision by which a person convicted and sentenced to a term of three months loses his vote for three years.
– But is there a general forfeiture of civil rights in a case of this kind like there is in a felony?
– No; there is no forfeiture such as the honorable senator referred to in the concluding portion of his remarks.
. -It seems to me that for a person to be convicted under this measure, and sentenced to three months’ imprisonment, would mean, in this State, deprivation of voting rights for three years. That makes the penalty considerably higher.
– A person who will not assist in administering the law has very little right to assist in making it.
– I am only pointing out the possible penalty for an omission on. the part of somebody else to let a witness know that he has been summoned.
– The words “ by omission “ must be read in conjunction with the words “ dissuades or prevents.” A mere accidental omission could not be construed to mean that a person actively helped another to resist a summons to attend.
– There must be a guilty intent.
Clause agreed to.
Clauses 11 to 17 agreed to.
Schedule, preamble, and title agreed to.
Bill reported without amendment; report adopted.
– I move -
That the Senate do now adjourn.
I think the Senate has done excellent work to-day.
– There is another Bill - the Commonwealth Salaries Bill - on the notice-paper.
– We shall go on with that measure on Wednesday.
– Has the Vice-President of the Executive Council any further information to give to the Senate about the special mail train mentioned in the question I put to him this morning?
– Before the Minister replies I wish to bring under the notice of the Senate the following important paragraph, which appeared in this morning’s Argus -
It is understood that members of the Federal
Cabinet do not favour Sir William Lyne’s scheme for advertising Australia by supplying Commonwealth news to the London papers. It is thought that news supplied in that way by a Government journalist would be looked at askance by the British public as being biassed in favour of the Commonwealth. It is most unlikely, therefore, that the scheme will be persevered with.
An alternative proposal has, however, been made in the Cabinet. It is known that the chief obstacle in the way of publishing Australian news in the London papers has been the great costof a cable service. It has been suggested, therefore, that if the rates for press messages over the Pacific cable were considerably reduced, the amount of news sent to London would greatly increase. The difficulty in the way is the cost of transmitting messages over the Canadian land lines and over the Atlantic cables. It has accordingly been decided to approach the other Governments interested in the Pacific cable, with the view of inducing them to agree to a lowering of the press rate, which at present stands at1s. per word. The new rate, if adopted, would, of course, apply only to press messages containing Commonwealth news. An arrangement of this sort already exists with regard to press telegrams within the Commonwealth.
If that statement is correct, the proposal referred to is of such importance that the Government, before committing itself to it, should consult both Houses of Parliament. Probably I shall be told that the Government is responsible to Parliament, which can censure it for its actions. But Parliament often hesitates to censure Ministerial action, not because it does not disapprove of it, but for other reasons. If the Government proposes to increase the burden of the taxpayers in connexion with the working of the Pacific Cable, it should see that the public interest is safeguarded. Since I have been a member of the Senate there has been a reduction of the rates for press messages between Western Australia and the eastern States; but the whole benefit has gone to newspaper proprietors. The Western Australian public get only as much eastern news now as they got when the rates were higher. No doubt, the reduction spoken of in the Argus is suggested in the interests of the Commonwealth, so that the people of Europe may have more Australian news. This object will not be achieved merely by reducing rates for press messages, and I trust that the Government, as we have a “ say “ in the management of the Pacific Cable, will see that no reduction is made unless steps are taken to provide for the sending of more news to Europe, and news of a reliable character. I admit that that will be a difficult thing to do; but we know that in the past press messages have been sent which have defamed this country, and considerably damaged our interests.
– I do not quarrel with existing concessions. The object of the Minister of Trade and Customs, so far as I understand it, is to insure the sending to England of more messages affecting Commonwealth matters. It is desirable that Australian news should be more widely disseminated in Europe; but the Government should be able to control what is sent.
– That depends upon what Government is in power.
– I would sooner trust the Government with which I had least sympathy than irresponsible pressmen who may be more bitter partisans than any politician.
– I question that.
– Then the honorable senator cannot read the Sydney newspapers.
– The Melbourne newspapers are worse.
– We should know what are the intentions of the Government in regard to this proposal.
.- Senator Macfarlane spoke this morning about the chartering of special trains to convey mails to catch outgoing steamers at Adelaide. On two or three occasions, when I have been journeying to South Australia, I have been informed that the express train was being followed by a special. One night, when at Stawell, I was desirous of knowing who were on board the special, and for what purpose it was running, and I was informed that it was a special mail train. It was running only a few minutes after the ordinary express. I wish to know how often trains are chartered for the sole purpose of conveying mails, and whether the Government bears the expense. If the delay in the despatch of mails from Melbourne which necessitates the chartering of special trains is the fault of contractors, they, and not the taxpayers, should pay for these trains. I trust that full inquiries will be made into the whole subject.
– I hope that before the Vice-President of the Executive Council gives a definite reply to Senator Pearce he will take counsel with his colleagues. If the press are to be denied further reductions of rates on the ground that they may abuse their privileges by circulating false or incorrect news, they should not be permitted to continue to enjoy the existing concessions.
– In the States, too.
– Not only with regard to telegraphic communication, but also with regard to postal facilities for the cheap carriage of newspapers, and so on. If we are going to discriminate between newspapers which we think give a correct presentment of political facts, or correct comments on them, and newspapers which happen to disagree with our politics, and give another presentment of political facts-
– Did any one advocate that ?
– No; but surely the honorable senator will see tha[ the principle applies in one case as well as in the other? We have already decided to make certain concessions to the proprietors of newspapers, on ‘ the ground that they are disseminating news which we desire to have disseminated. In the newpaper business, as well as in any other, we must trust to natural competition to set things right. If there is one newspaper which sends Home one presentment of news, there is always another newspaper which sends Home the other side of the question, and we must leave the public there to discriminate between the newspapers and to judge for themselves. If the Government do contemplate making any reduction, T think it is very desirable indeed that more news should be sent to England concerning the condition of things, especially politics in Australia, than is now transmitted. If that is what in proposed, I think it is commendable, but it would not be wise for a Minister to make a hasty reply to any objection before the scheme has been submitted to the Senate in a substantial form. With regard to the question of the payment for a special train, the amount which is at stake is not very large, but a principle is involved. As I happened to be a passenger on the Coogee on the trip on which she was late, it is only fair to her owners that I should say that it was not owing to the fault of their officers that she arrived so late. She left Launceston punctually to time, and was delayed simply by stress of weather for eight hours. The captain of the steamer tried bv every possible means to get into Melbourne in time, but he failed, and so the Tasmanian portion of the outgoing English mail missed the ordinary express train, owing to her late arrival. If it is intended to make mail-carrying companies responsible for the act of God, then we are going rather too far.
– The question of the reduction of the rates for cable messages has not been under the consideration of a Cabinet at which my honorable and learned colleague and myself have been present, but it may have been under the consideration of a Cabinet at which the writer of the paragraph in question may have been present. From time to time the Government have had under general consideration the desirability of supplying to Great Britain further news concerning the affairs of Australia. I happened to be in London about two years ago when the present Government was formed, and the only intimation we got there was a paragraph of about three or four lines, stating that a want of confidence motion had been carried against the Reid Government, and three or four days afterwards that a new Government had been formed. It is a most unusual thing to see in the English newspapers even a solitary cablegram concerning Australia. Consequently, we feel that it is highly desirable that some improvement should be effected in order to do justice to us, and relieve us from the unfortunate discredit to which we have been so unworthily subjected in the past. Whatever policy the Government may decide to invoke in order to achieve that object, it will, of course, be announced in the usual way, and we shall be responsible for our action. I had no opportunity of seeing the reply to Senator Macfarlane’s question concerning the cost of the special train until about three seconds before I read it here this morning. In the meantime, I have been able to see the officers of the Department, and also a file. It seems that on the date in question the Coogee arrived some hours, late. An explanation was called for, with the result that it was mentioned that shearrived late by reason of stress of weather, over which, of course, the shipping company had no control. The Coogee is bound, under ordinary arid reasonable circumstances, to maintain an average speed of fourteen knots an hour. But on the occasion in question it was quite impossible for her to run to time.
– Under ordinary circumstances she would have reached Melbourne before 11 o’clock that morning.
– She was unable to keep her course.
– The result of the stormy weather was that the Tasmanian malls missed the mail train, and a special train had to be engaged for the purpose of catching the mail train, which it did, I believe, at Stawell. Provided that the Department is satisfied that the late arrival of the Coogee was due to circumstances over which the contractors had no control, and that they are not liable, then, undoubtedly, the cost of the special train will have to be borne, not by Tasmania, but by the Commonwealth per capita.
Question resolved in the affirmative.
Senate adjourned at 2.56 p.m.
Cite as: Australia, Senate, Debates, 19 July 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19070719_senate_3_36/>.