3rd Parliament · 2nd Session
The President took the chair at 3. p.m., and read prayers.
Assent to the following Bills reported -
Appropriation (Works and Buildings) Bill. Commonwealth Salaries Bill.
– I beg to ask the Minister of Home Affairs, without notice, whether he has made inquiry into the alleged infringement of section 177 of the Electoral Act bythe Loyal Brunswick Lodge of Geelong in suspending one R. N. Carbines, an elector of Corio, because of his support of a certain candidate for parliamentary election, and, if so, whether he will communicate the result to the Senate ?
– When the matter wasreferred to by the honorable senator a little time ago, it was forwarded by me to the Crown Law officers for advice, and at the end of last week I was advised by them in a somewhat lengthy opinion that the circumstances set forth did not disclose a case which called for prosecution. In other words, we were advised that, in their opinion, a prosecution could not be maintained.
– Will the Minister be prepared to lay upon the table of the Senate the opinion of the Crown law officers?
– I do not know whether there is any objection to that being done. Any honorable senator may see the opinion, and if that is not suitable I can lay it upon the table of the Library. There may or may not be an objection to laying it upon the table of the Senate. I do not know of any. A member of either House will be able to see the opinion, for I shall put it on the table of the Library. I may lay it upon the table of the Senate, but I will first ascertain if there is any valid reason why I should not do so. Any member of the Senate may see the opinion this afternoon if he wishes.
– I desire to ask the Vice-President of the Executive Council, without notice, if he is yet in a position to give the Senate any information as to the negotiations for the acquisition of a site in London for Federal purposes?
– Iam not in a position to give any information onthe subject.
– I placed the representations of my honorable friend before the Minister of Trade and Customs.. He does not see his way to give the assistance referred to; and, as the matter is before the Conciliation and Arbitration Court, the Government feel that they are not called upon to make any remark on the subject.
– I beg to give notice that to-morrow I will move for leave to bring in a Bill for an Act relating to procedure on applications for a declaration under the Excise Tariff (Agricultural Machinery) Act 1906.
– I desire to ask the Minister of Home Affairs, whether the Bill of which he has just given notice deals with the question that has recently arisen in connexion with the collection of Excise upon local manufactures.
– The Bill is designed to give to the tribunal that now hears and determines these applications, powers similar to those which are enjoyed by courts of law.
– It has not yet been paid into that fund.
– Arising out of that answer, may I ask my honorable friend where and when it willbe paid over, or what progress is being made towards its recovery ?
– I think it is very probable that after the mail tenders have been dealt with some progress may be made in the proceedings.
– In view of the statement which he has just made, I beg to ask the Vice-President of the Executive Council whether it is a fact that Sir James Laing and Sons or Mr. W. H. Croker are amongst the tenderers for the mail contract?
– I am not in a position at thepresent juncture to give to my honorable friend any information on the subject.
– Arising out of the question regarding the mail contract, I desire to ask the leader of the Senate what is the connexion between the calling for tenders two years ago and the calling for tenders to-day, that we cannot be put in possession of the facts regarding the former act?
– My honorable friend has raised a most important question of law.
– Oh ! do not give us this.
– Order !.
– I am confident that the legal members of the Senate realize fully what I mean. Whether the damages are liquidated or are to be recovered merely as damages is the main question of law which has caused the delay.
– In order to elucidate that point in connexion with the mail contract, and free it from the confusion of being regarded as a question of law, may I ask the Minister if what he intends to convey to the Senate is that the Government feel that they are not in a position torecover the £25,000, but that they may be able to recover in respect of whatever damage they may sustain by accepting a tender now at a higher rate than that which was offered by Sir James Laing and Sons?
– That question is involved in the present condition of affairs.
– Then may I ask my honorable friend whether the Government have abandoned the intention of claiming the £25,000?
– Certainly not.
– If Sir James Laing and Sons are tenderers for the new mail contract, will the payment ofthe £25,000 be made a condition precedent to entertaining their tender?
– I can give the honorable senator no information on the question at this juncture.
MINISTERS laid upon the table the following papers -
Papua - Ordinance of 1907 - Removal of Natives from the Territory.
Census and Statistics Act 1905 -
Shipping and Oversea Migration of the Commonwealth of Australia for the year 1906.
Trade, Shipping, Oversea Migration, and Finance of the Commonwealth of Australia for the month of July, 1907. - Bulletin No. 7.
Public Service Act 1902 -
Amendment of Regulation 104. - Statutory Rules 1907, No.100.
Post and Telegraph Act 1901 -
Amendment of Postal, General Postal, and Telephone Regulations. - Statutory Rules 1907, No. 103.
Defence Acts 1903-1904 -
Financial and Allowance Regulations for the Military Forces of the Commonwealth. - Amendment of Regulations 60 and 234. - Statutory Rules 1907, No. 99.
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the questions are as follow: -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the VicePresident of the Executive Council, upon notice -
– The following return has been compiled by the Commonwealth Statistician, and contains the information asked for -
asked the VicePresident of the Executive Council, upon notice - 1.Has the attention of the Government been drawn to the Sydney telegram appearing on page 8 of the Age of the 4th inst. headed “Destitute Immigrants” ?
– The answers to the honorable senator’s questions are as follow : -
– I move -
That this Bill be now read a second time.
The main measure - the parent Act - was passed on the 24th September, 1906, in the face of, as honorable senators now present will well remember, considerable opposition. Much reproach, and - shall I say? - scorn was heaped upon the Government because of its introduction. It was urged against it that it was too drastic and too high-handed in its terms, and that it would be a useless piece of legislation, because we had. not in our midst any combines or trusts, and certainly none of a mischievous character.. It was urged, indeed, that we were not so much as threatened with any trusts or combines of the kind. A little over twelve months have elapsed–
– And the Act requires amendment.
– My honorable friend is a little previous. I shall deal with that question. The Government have no regrets about the amendment of the Act. We now have to reckon with trade organizations - one may call them combines, trusts, vends, monopolies or rings - in regard to oil, coal, boot and shoe machinery, bricks, confectionery, tobacco, and proprietary articles.
– Does the honorable’ senator say that the Government have the information ?
– I said that we have now to reckon with combines or trusts which are alleged. to exist in regard to those matters. Of course, it was obvious, and has been so for the last two or three years at the very* least, that the trend of trade was such that it was inevitable that sooner or later we should have, to deal with those institutions, and the Government therefore deemed it wise . ‘that a precautionary measure of the character of the existing Act, known colloquially as the Anti-Trust Act, should be introduced. Senator Walker has already reproached us with the allegation that that Act has been a failure, or at least that it requires amendment. We admit at once that if the object of the Act is to be fully achieved, an amendment is required, not in regard to its fundamental features, or the fundamental offences which are made punishable under it, but only so far as additional machinery is necessary to facilitate the procuring of .evidence in proof of those offences. The problem of effectively dealing with trusts or combines is of considerable difficulty and complexity, hut, notwithstanding that, it is the bounden duty of the Government to grapple firmly and drastically with them if they do exist to the detriment of public interests. It will be. the duty of every Government, in the interests of the Commonwealth, where experience shows or suggests that the object of the parent Act is not being achieved, to follow relentlessly every evasion of the Act with the design of ultimately securing effective legislation, even should this involve amendment year after ‘ vear. No Government ner:d be ashamed, in view of the difficulties of thequestion, to introduce amending legislation* where it is necessary to do so in the light, of experience.
– Except where it refused suggestions when the original Billwas going through.
– Senator Symon accused the Government of timidity in connexion^ with this subject, and in relation to variousallegations, as to the existence of trusts and” combines.’ From the Government standpoint that accusation is hardly warranted, and the honorable senator would probably be one of the first to admit it if the facts of the several cases were known. My. honorable friend seemed, if he will pardon me-‘ for saying so, to be under a complete misapprehension as to the terms of the AntiTrust Act, and the powers of the Government thereunder.
– Does thehonorable senator mean when I spoke one the motion for the adjournment of the Senate recently?-
– Yes, when Senator Millen moved with regard to the Coal Vend. Senator Symon is reported in Hansari, on page 3691, to have said - and, of” course, those who, like myself, were in theChamber when he spoke, heard him -
An honorable senator made an interjection relating, to the discovery of documents, the obtaining of information, and all that sort of thing. Honorable senators will recollect that there is asection in this Act of the most drastic description which not merely enables every possible information to be obtained and documents to be procured, but which prevents any one, who isconcerned in a matter of this kind, from refusing to discover all documents or to answerquestions that may be put. to ‘him in respect tothe matters at issue on the ground that thev arelikely to incriminate him. Everybody concerned in any proceedings that may be brought in respect of an infringement of the Act is liable in-, respect to the discovery of documents, and is compelled to reply to all questions, even if the result of his answers may be’ to render him liable to a criminal prosecution. It is the most absolute. and unrestricted power of discovery that can. be given in any form of legal procedure. >
– Would that form apply to witnesses for the prosecution?
– Yes. I am., referring to section ti, sub-section 2 -
No person shall -
That is, not merely one of the parties, but any- body - in any proceeding under this section be excused from answering any question put’ whether viva voce or by interrogatory, or-, from making any discovery of docu-ments, on the ground th;it the answer or; discovery may criminate or tend to criminate him ; but his answer shall not be admissible in evidence against him in any criminal proceeding other than a prosecution for perjury.
Senator Symon was obviously under a misapprehension when he made that statement, because reference to section 11 of the principal Act will show that the sub-section which he quoted refers only to civil cases, and not to prosecutions or criminal cases at all. The honorable senator was obviously under the impression that those broad and general powers of securing information existed in regard to all the offences under the Act. The main object of this Bill is to give to the Government - the Attorney-General - the powers which my honorable friend thought were contained in the existing law, and to make them apply not only to civil but also to criminal matters. The Bill seeks, amongst other objects, to confer those powers. I have mentioned on more than one occasion that the Crown Law Department, when alleged combines or trusts have been brought under notice, has discovered the greatest difficulty in securing the necessary evidence upon which to found prosecutions. The officers who were concerned in efforts to secure that evidence are men of experience and skill. One serious difficulty which arose was that, although the various combinations must have had for their foundation some agreement or contract, the Government were quite unable to secure either the original or a copy of that agreement or contract, or the necessary evidence in regard to it.
– That was not difficult to understand, seeing that the man who signed the contract was equally liable with the combination.
– Quite so. That is one of the difficulties, as my honorable friend says. In many cases where the Crown Law officer sought information, he was referred to the solicitor of the trust, or of the person to whom he applied, and that solicitor naturally would only give such information, and with great caution, as he, with his professional knowledge, saw fit to give.
– The Government did not expect anything else from a solicitor?
– Of course we could not expect anything else, and that is the difficulty which we are seeking to combat. We can rely on the fact that the evidence or information supplied was not the evidence or information that was asked for by the Department. It has been the duty of an experienced and skilled officer, Mr.
Powers, the Crown Solicitor of the Commonwealth, to undertake these investigations, and he has formulated the reasons for the difficulty in the way. He says -
In these proposed prosecutions of trusts and combinations the difficulty is to obtain evidence for the following reasons : -
In these circumstances, and after the experience of some months, the Department has advised that these difficulties can be overcome only by some power being granted to the ComptrollerGeneral of Customs, or other officer, for the purpose of securing further evidence or information in the terms of the Bill now submitted. We have had a very curious revelation in connexion with the inquiries made concerning the Confectionery Trust. When seen on the subject, the solicitor to the Trust apparently in a very friendly way, was quite prepared to admit that there was a combination amongst the confectionery manufacturers, and to let the Government have a copy of the agreement, but it transpired that this particular combination of individuals confined its operations to the State of Victoria.
– Is that the honorable senator’s latest information? They sent delegates to Sydney, and, I believe, to the capitals of other States, to bring the confectioners in those cities into the Combine.
– I am aware that negotiations were undertaken for the purpose of bringing certain Sydney manufacturers of confectionery into the Combine, but I am also advised that no definite and distinct evidence of the fact, sufficient to found a prosecution, can be discovered. The point I am making now, however, is that the Confectionery Combine has been formed in Melbourne under the terms of an Act of the State Legislature of Victoria. I believe that similar Acts are in force in the other States, and I have particularly noticed the Queensland Act. The Act to which I refer is the Victorian Trade Unions Act of 1890. I quote this Act as it is the one with which I am most familiar, and the one depended upon by the Confectionery Combine. I find that according to section 3 -
The term “ trade union “ shall mean any combination, whether temporary or permanent, for regulating the relations between workmen and employers, or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not if the Trade Unions Act 1884 or this Act ha-d not passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.
It is provided that the Act shall not affect certain agreements therein set out.
– Have they affiliated with the Trades Hall?
– No; the extraordinary thing is that the Combine, under the terms of this Act, have registered themselves as a trades union. Section 4 of the Act provides -
The purposes of any trade union shall not by reason merely that they are in restraint of trade be unlawful so as to render void or voidable any agreement or trust.
The purposes of any trade unions shall not by reason merely that they are in restraint of trade be deemed to be unlawful so as to render any member of such trade unions liable to criminal prosecution for conspiracy.
And section 5 provides that -
Nothing in this Act shall enable any Court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements -
And amongst others it sets out -
Any agreement between members of a trade union as such concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ or be employed..
– The honorable senator does not contend that that Act overrides the Federal Act?
– I do not, but I point out that the persons . connected with the Confectionery Trust state that so far as Victoria is concerned they are registered under this Act, which authorizes combinations of the kind in restraint of trade.
– In restraint of trade ?
– The Act does not say so.
– It distinctly says so. I have just read the section. In view of the American experience in connexion with combines and trusts, I make no apology for the introduction of this Bill. Honorable senators will be aware that year after year, during the last twenty years, effortshave been made in America, not only by the Federal Government, but by various States Governments, to render their antitrust legislation more effective, and that it is only by recent legislation that that has been accomplished. Notwithstanding this- fact, as we all know, the United States are the home of trusts and combines, and they still flourish there. I am free to admit that a great difference exists between America and ourselves in this connexion, because the great carrying companies and railway companies there have been enabled, by means of preferences and discriminations, to assist the creation of trusts, and to combat all efforts made to restrict them. But it is singular to note ‘that, although there, is drastic legislation on the statute-books, not only of Congress, but of the States Parliaments, by the exercise of extreme ingenuity the trusts have been able from time to time to evade the full effect of them. Legislation of this kind in America was started in 1887 with the Inter-State Commerce Act, which forbids any restraint of trade on the part of carriers or shippers in regard to Inter-State commerce. It also prohibits arrangements for -discrimination in preferences. Shortly afterwards, in 1890, there followed the Sherman Act, which declared trusts and combinations in restraint of trade illegal, and persons engaged in them guilty of misdemeanour. In 1894, the Wilson Act was passed to prohibit, in regard ato importations, combines in restraint of trade. Then again, in 1903, what was called the Expedition Act was passed for the purpose of insuring a more expeditious dealing with prosecutions against trusts. In the same year, the Commerce and Labour Act was passed, and a very important Statute, known as the Elkin Act, which prohibited rebates, drawbacks, and’ discriminations, and declared these to be unlawful.
– That was the Act under which Rockefeller’s people were fined j£6, 000,000.
– Under that Act and the Act passed in 1906, which is a most important Act, and to which it will be necessary for me to refer later. No less than twenty-seven States and Territories of the United States have passed more or less drastic anti-trust laws. Glancing at some of these, honorable senators will find sections which enable the most searching investigations to be made, and information- of a most helpful character in connexion with prosecutions to be procured.
– Is there any American Statute which enables an investigation of people’s books to be made before there is any prosecution at all.
– Yes; and I propose dealing very fully with that matter, because it is most important. As I have said, anti-trust laws have been passed by some twenty-seven of the States and Territories, and I propose to quote a section from an Act passed by the State Legislature of Ohio, which is typical of the sections to be found in these American Acts, to show how helpful American legislation is in regard to prosecutions. This section provides that -
In prosecutions under this Act it shall be sufficient to prove that a trust or combination a-s defined herein exists, and that the defendant belonged to it or acted for or in connexion with without proving all the members belonging to it or proving or producing any article of agreement, or any written instrument on which it may have been based, or that it was evidenced bv any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation” as such.
Then another section of a State Act provides in a similar provision -
And a preponderance of evidence is sufficient to authorize a verdict, and judgment for the State.
It has been charged against the Government that the provisions of this Bill are of a somewhat drastic character, and capable of being tyrannously exercised. This leads me to ask the special attention of honorable senators to the drastic character of the American legislation on this subject. 1 have already mentioned that the United States Commerce Act was passed ‘in- 1887. It applies to all common carriers engaged in Inter-State commerce. I do not pretend to give the wording of the provisions ot these Acts, but I have made -a brief note in accordance with their tenor, and honorable senators are, of course, at liberty to consult the Acts themselves. This Act provides that all charges for transport must be reasonable, and prohibits pools or combinations in Inter-State traffic. It. provides for the appointment of an Inter- State
Commission to secure the enforcement of the Act. Under section 20, this Commission is given extensive powers of investigation of the affairs of all common carriers subject to the Act. The Commission is enabled not only to require reports from all common carriers, subject to the Act, but -to fix the time and prescribe the manner in which such reports shall be made, and further, to require from such carriers specific answers to al) questions upon which the Commission may need information.
– Is that a Federal enactment ?
– Yes. The Act sets out the form in which these several corporations shall formulate their reports, and says, moreover, that these reports must contain such information in relation to rates or regulations concerning fares or freights, agreements, arrangements or contracts for common carriers as the Commission may require. I especially point that out - that these reports must contain such information regarding fares, freights, or agreements, arrangements or contracts with other common carriers, as _ the Commission may require. Further, the Commission may, within its own discretion, require all common carriers to have. an uniform system of accounts, and mav prescribe such uniform system. Now . I come to the Act of 1906!. The section of which I have just given an epitome was amended by a law of .29th June, 1906, which gives still more extensive powers of investigation to the Commission. Under that law of 1906 these reports have to be made on oath, and any failure to file the report within the prescribed time, or to make specific answer to any question authorized by the section itself, that is to say, any question on which the Commission may need information, -is punishable by a fine of $100 per day. The Commission may also require Inter-State carriers to file monthly reports of their earnings and expenses, or special reports within a specified period under a similar penalty. The Commission has access at all times to all accounts, records, and memoranda to be kept by Inter- State carriers, and it is unlawful for a carrier to keep any other accounts, records, or memoranda than those prescribed or approved by the Commission. The Commission may furthermore employ agents or examiners who have authority under the order of the Commission to inspect and examine all accounts and records kept by any common carrier. The penalty for refusing or failing to keep such accounts or to submit such accounts to the inspection of the Commission, or any of its authorized agents or examiners is $500 for each offence, and for every day of the continuance of the offence. Any failure to make true or correct entries, or any mutilation thereof, is a misdemeanour punishable by a fine of not less than $1,000 or not more than $5,000 or. imprisonment for from one to three years; or both fine and imprisonment. Compliance with these requirements mav be secured by a writ . of mandamus issued bv the circuit or district Courts. The special agents or examiners appointed by the Commission have also power to administer oaths, examine witnesses and receive evidence. The Act also contains other provisions with regard to the protection of witnesses. My honorable friends will thus see that nothing can be more drastic or comprehensive than the powers conferred upon this Inter-State Commission in regard to the ‘securing of information that it may seek or require as to the management, organization or carrying on of these combines or trusts.
– That Act has nothing to do with combines or trusts. It merely relates to the regulation of transportation.
– My honorable friend will see that it applies to every corporation.
– It does not apply to anything except what comes before the Inter-State Commission.
– It applies to every corporation in the most wide and comprehensive terms. Every corporation which, may in any way, directly or indirectly, be connected with any other corporation is liable to have its affairs inquired into under this drastic and comprehensive law.
– Where does it say that? .
– The Act itself says so.
– It applies to carriers.
– The Act of 1906 goes further; at any rate, the Act of 1903 went very much further.
– What the VicePresident of the Executive Council has just said as to the powers conferred upon the InterState Commission apply only to Inter-State carriers.
– That is so.
– May j mention - my honorable friend will see thedistinction - that the Inter-State Commission is a Court, a tribunal, before which* the proceedings referred to are to takeplace. But what the Government is proposing to do under this Bill is to givearbitrary power to the officer of a Department, not to a Court.
– That is so undoubtedly. I am describing these American Acts for the purpose of showing exactly what hasbeen done in the United States. It hasbeen urged against this measure that it ishighhanded and drastic, and that it proposes to make wide and alarming inroadsupon, the liberty of the subject. I reply, that as regards common carriers, all thesedrastic powers are already given in theUnited States. I also point out that, by theterms of the 1903 Act, a Bureau of Corporations has been established which hasfor its object the investigation of the affairsof corporations generally. By section 6 of the Act, a’ similar obligation is imposed inregard to making full disclosures of transactions and answering questions, and submitting books and records for inspection aswas imposed upon railroad and carrying; companies in the United States by the Act of 1887.. In February, 1903, the United1 States Congress established a Department of Commerce and Labour. . Section 6 of the Act of 1903 enacted that there should” be in this Department a bureau, to be called’ the Bureau of Corporations, with an officerknown as the Commissioner of Corporations at its head. This Commissioner has power to make investigations into the organization, conduct and management, and* the business of any joint stock company, or corporation, or corporate companies engaged in Inter- State commerce, except common carriers, who are dealt with under the Inter-State Act of 1887. It is provided that the information so obtained, or as much thereof as the President may direct, may be made public. In order to accomplish these purposes, the Commissioner has, with respect to all corporations or combinations engaged in Inter-State commerce, all the powers which are conferred by the Act already referred to upon the InterState Commission. That is to say, he has all the powers that are contained in’ the Act of 1887, and any amendments up to- 1903. I have described these precedents to show the extent to which the1 Congress of the United States has seen fit to go with the object of exercising some -control over corporations, and over trade and commerce as affected by them. It is the duty of this Bureau of Corporations to issue reports from time to time ; and, although it has the large powers to which I have already referred, yet it. is seeking additional powers. Amongst other things, I notice, from its Report of 1905, that reference is there made to a scheme ‘or plan which was proposed, whereby a corporation should be permitted to carry on its business, only under a Federal licence ; and, on page 18 of volume 26 of the Department of Commerce and Labour Reports they say -
The Federal licence plan recognises that real supervision, real regulation, can only be enforced “by a Government whose jurisdiction and powers are great enough to cope with the corporations to be supervised or regulated.
– Can that licence issue to a combine or joint stock company?
– The proposal is in order to have more real and effective control over corporations, that they shall only foe permitted to carry on under a licence.
– The Bureau of Corporations is merely established under an Act which is virtually an expansion of the principle of the Victorian Companies Act. That is all. There is far more control over corporations in Victoria than there is in South Australia.
– Quite so; but this goes very much further than we do in any State of the Commonwealth. In the Report it is also stated that - the time is ripe for Congress to assume such supervision or control.
My honorable friend will be aware of the work that has already been done by this Bureau of Corporations in the “United States. I speak subject to correction when I say that the transactions which recently took place in reference to the Standard Oil Company were the outcome of the investigations made by the Commissioner of Corporations. The drastic powers that he had enabled him to enter, and investigate, and search, as deeply as he chose, into the affairs of the various railroad companies, oil companies, and other corporations, with the result that we have recorded the colossal fine of something like ^5,500,000 for breaches of the anti-trust laws of the United States. These investigations enabled the Commissioner to reveal the most alarming scandals in connexion with trusts. Amongst other things it was shown that in 1899 the value of the assets of the Standard Oil Company was £5,500,000. In 1906 the value had risen to £74,500,000 in value, and the total profits earned in the meantime were something like £98,000,000. The dividends distributed amounted to something like ^61,500,000.
– There is a weak point to which I should like to draw the Minister’s attention. The Bureau to which he has referred would not be able to touch a number of individuals acting as a combine. It can only move apparently in the case of joint stock companies?
– Yes; the Bureau of Corporations no doubt controls corporations only. But those corporations in the United States, as my honorable friends will be well aware, have in some cases been enabled to defy Congress, and. to take into their own hands the control and direction of a large part of the trade and commerce of the United States. . It is our duty - it is the duty of the Government and of the Commonwealth Parliament - to see that the public of this, country are not menaced by such colossal and octopus organizations. I do not think that it is possible, by reason of the fact that the railways of the States of Australia are owned by- the Governments of the States, for trusts and combines in this country to approach the tyrannical powers or the magnitude of the American corporations. But they can be, perhaps, not less mischievous within their own more limited circle. The Government proposes - provided, of course they are enabled to do so by the passage of this measure, . to attach one «or two officers to the Attorney-General ‘s Department, with a view of investigating these cases of combines or monopolies which prima facie are engaged in committing offences against our anti-trust law. The special duty will be cast upon these officers
Df making investigations. Where evidence can be procured by the making of rigid investigations, they will procure it, and upon it will be founded the necessary prosecutions where the evidence is sufficient. I wish honorable senators to understand me when I say that I do not for one moment assert- that all trusts are necessarily bad. We have good trusts, and we have bad trusts. As a matter of fact, in the United States they do not attempt to discriminate between good and bad trusts. According to the’ Sherman Act, where any restraint of trade exists by means of a combination an offence is committed. But under the Commonwealth law, there is a distinct discrimination, and an offence is only committed in regard to those -corporations or combines that are detrimental to .the interests of the public. In those cases only do we desire to prosecute.
– Is it not necessary to prove that they are detrimental to Australian industries?
– I shall deal with that point presently.
– Can the Minister instance a good trust and a bad trust?
– I can cite the Standard Oil Trust as an exceedingly bad trust.
– That is a foreign one.
– At the present time, we have not any definite legal evidence of the existence of a trust in Australia. 1 Senator Sir Josiah Symon. - How about the Steam-ship Combine?
– Who are running cargo along the coast more cheaply than is done in any other part of the world.
– And who are charging their passengers what they like.
– That may be a good trust. It may be quite legitimate to control trusts and to regulate trade in such a way as to pay a fair return on capital and fair wages to the workers. That in itself may be a perfectly legitimate operation, and that would not be regarded, I think, as furnishing evidence of the existence of a vicious or injurious trust.
– Then we shall want an officer of the same status as the Master of the Supreme Court to tax the costs.
– I cannot stop to argue that at the present time. I am merely laying down the general principle that it is possible for good trusts and bad trusts to exist, and that the object of our anti-trust legislation is only to get at the mischievous or bad trusts. Clause 4 of the Bill refers to sections1 4, 5, 7,. 8, and 9 of the principal Act. In order to illustrate fully what I mean, I wish to draw the attention of honorable senators to the terms of the Act, and to show how we seek to get at only vicious trusts. Section 4 of the Act says -
Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination,- in relation to trade or com merce with other countries or among the States - (a) with intent to restrain trade or commerce to the detriment of the public; or (4) with intent to destroy or injure by means- of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.
Every person who is guilty of an offence is liable, to a penalty of ,£500, and the contract is declared to be illegal and void. Section 5 of the Act reads -
Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or entered into any contract, or engages or continues in any combination - (a) with intent to restrain trade or commerce within the Commonwealth to the detriment of the public, or (b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty .of an offence.
Every person who is guilty of an offence is liable to a penalty of ,£500, and the contract is declared to be illegal and void. Section 7 says -
Any person who monopolizes, or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, .with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of am offence.
Every offender is liable to a ‘penalty of £500, and the contract is declared to be illegal and void. Section 8 reads -
Any foreign corporation, or trading or financial corporation formed within the - Commonwealth, which monopolizes or attempts to monopolize, or combines or conspires with any person to monopolize, any part of the trade or commerce within the Commonwealth, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence
Every offender is liable to a penalty of £$00, and the contract is declared to be illegal and void. Section 9 deals with the question of aiding and abetting, and fixes the penalty for that offence at ^500. Subsection 1 of section 11 empowers a private individual to recover treble damages, while sub-section 2 gives very considerable powers for the purpose of discovering documents and securing information. Section 14 reads -
So far as its provisions are concerned, the Bill is founded upon the Customs Act, because it has been generally recognised that the machinery provided in that Act has been the reason for the success of the Customs prosecutions which have taken place from time to time. I venture to say that large and important prosecutions could not have been carried to a successful issue, and fraudulent importers and others heavily fined, and in some cases imprisoned, without the auxiliary assistance of that machinery, which has been copied in this Bill. Section 255 of the Customs Act reads -
In every Customs prosecution the averment of the prosecutor or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary, but so that -
When an intention to defraud the revenue is charged the averment shall not be deemed sufficient to prove the intention ; and
in all proceedings for an indictable offence or for an offence directly punishable by imprisonment the guiltof the defendant must be established by evidence.
We have sought to reproduce that section in the proposed new section 15A which is contained in clause 4 of the Bill.
– Is that identical with the section in the Customs Act?
– Practically it is. Section 38 of the Customs Act says -
Any person making any entry shall, if required by the Collector, answer questions relating to the goods referred to in the entry.
Section 234 provides that amongst a number of things which are enumerated -
No person shall -
refuseor fail to answer questions or to produce documents.
A person who commits that offence is made liable to a penalty of £100. Those two provisions are reproduced in the proposed new section15B.
– It is putting a combine on the same level as a supposed smuggler.
– If a combine breaks the law it is equally guilty of a criminal offence. The Customs Act could not be operated successfully did it not enable the Government to go to the importer direct and make him disclose evidence, and produce his books. He is perhaps the only person who possesses the information, and his are the only books which will disclose nefarious conduct.
– President Roosevelt says that they are the worst criminals in society.
– Yes. Section 214 of the Customs Act is reproduced in the proposed new section 15c. The section reads -
Whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported, undervalued, or entered or illegally dealt with, or that it is intended to unlawfully import, undervalue, enter, or illegally deal with any goods, or whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the goods so imported entered, seized, or detained, undervalued, or illegally dealt with, or intended to be unlawfully imported, undervalued, entered, or illegally dealt with, and of all other goods imported by him at any timewithin the period of five years immediatelypreceding such request, seizure, or detention, and shall also produce for the inspection of the Collector or. such otherofficer as he may authorize for that purpose, and allow such Collector or officer to make copies of or extracts from all books or documents of any kind whatsoever wherein any entry or memorandum appears in any way relating to any such goods.
If a person fails in that regard he is liable to a penalty of £100. The proposed new section 15D, which is contained in clause 4 of the Bill, is a reproduction of section 215 of the Customs Act, which says -
The Collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the person otherwise entitled to such document shall in lieu thereof be entitled to a copy certified as correct by the Collector, and such certified copy shall be received in all Courts as evidence and of equal validity with the original.
It will be seen, therefore, that in submitting the Bill we are not attempting novel legislation, but are only seeking to apply to trusts and combines that machinery which has proved itself eminently successful in the cast of imports. We do not propose to take more drastic powers as regards searching books and acquiring information than are contained in well-known American legislation. We are, therefore, not attempting any greater infringement of the liberty of the subject than the circumstances of the case completely warrant. We do not aim at discouraging individual effort, individual competition, or individual enterprise ; but we do aim at controlling, as far as possible, or, if possible, destroying, vicious combinations which are detrimental to the interests of the Commonwealth - which means the interests of the public. We are seeking to control them thoroughly and effectively so far as we can, and thereby to establish fair dealing. But we cannot look with equanimity on the growth of combines or trusts such as I have referred to without asking Parliament to make some effort at the very earliest stages of the Commonwealth to place them under proper and effective control. In all these circumstances I submit to honorable senators the measure for the amendment of the parent Act with some amount of confidence, and in the hope that the object which we have in view - the public good - will be achieved by its passage.
Senator Sir JOSIAH SYMON (South Australia) [4.17]. - It may be well upon a Bill of this description, although a little further time for consideration might be valuable after the second reading has been moved, that any of us who have a clear understanding of what the Bill means should at the earliest moment express our views. I therefore take the opportunity now of offering some remarks for the consideration of honorable senators, following as closely as possible the speech to which the Senate has just listened from the Vice-President of the Executive Council. In two or three respects I agree wilh what he has said. In the first place, I suppose that we are all .animated by the desire to promote, so far as we can, the industrial and trading prosperity of the Commonwealth, and also to prevent the possibility of injury being done to the consuming public within the Commonwealth by a too inordinate desire on the part of those engaged in trade and commerce to accumulate wealth in a hurry. It is also common ground with all of us to deprecate in the strongest possible way any organizations, known by the denomination of combines or trusts, which might be in their working and management inimical »to the best interests of the people of the country. I agree also with the honorable ‘ senator that there may be good and bad combines. ou cannot predicate of an association, whether of companies or_ of ‘ individuals, that it is vicious or likely to prove harmful to the community simply because it happens to be a combination or arrangement amongst a number of different individuals or different corporations. To say that would really be absurd, because every partnership is a combination of individuals.
– The existing law assumes certain things where a trust is proved to exist, whether it is good or bad.
– That is true. I am obliged to my honorable friend for reminding me of it. I shall have occasion shortly to allude to the point of view which he suggests. We are all agreed that where anything that is vicious and detrimental to the public - any thing ‘of evil effect - is shown to exist, an effort ought to be made in some direction and by. some means to put an end to it. It does not matter what shape it takes. If that evil result is produced by a combination of companies or of individuals, undoubtedly no effort ought to be spared to bring about legislation that will grapple with it. and, when we get that legislation, to bring it into operation. I say that now”, as I said it when the Bill which is .sought to be amended was under the consideration of the Senate twelve months ago. I do not think that any man, unless, perhaps, some one who is himself concerned in a mischievous trust or combination, would be prepared to s.y that he was not anxious to bring about and cany out legislation to put an end to mischievous combinations of any kind. As we are all agreed upon that subject, the only real point for consideration is whether we already have machinery which, if properly carried out, ought to be efficacious, or whether the Government are justified, whenever they are called upon to enforce the law as it exists, in immediately hanging back - that is the timidity of which I spoke - and saying, “ Oh, no, we are not going to try to bring the existing law into operation. We are going to let things slide until we can- get a further amendment of the law.”
– To sit back in the breeching and ask for another horse to pull the team along.
– That expresses much more tersely what I was endeavouring to say.
– Where the waggon is ‘ stuck that is -good policy.
– Yes, when you are stuck. But what some of us said when, the matter was under discussion recently was that you can pretend to be stuck in order to bring out the other horse. The Vice-President of the Executive Council says that I reproached him: - I. hope that I did not do it in an unkindly way - or reproached the Government, with not_ having brought into force the existing legislation. He then, in an emphatic utterance, said that the Government were going to firmly apply the law, and to put a stop to iniquitous or mischievous trusts or combinations. They mean, said he, to go on, to assert the law, even if that should involve-and this was a kind of anti-climax - amendments of the legislation year after year. That is what I complain of. That is the attitude of the Government to which I alluded the other day. I am glad that what was said then on both sides of the Senate has stirred them up to consider the matter. I stated then that their attitude reminded me of the class of American politicians who are apt to say, “I am for the law, but agin’ its enforcement.” That was the only reproach which I offered. What I said was, in effect, that the Government seemed to believe too much in the virtue of theprinted Statute, and too little in the efficacy of carrying it into effect. I thought, and still think, that, with regard to the particular matter brought under the notice of the Senate on that occasion by Senator Millen, there was quite sufficient to justify the initiation of proceedings, if the Government thought that proceedings under that particular Act were applicable. Of course, upon that point they must be guided by their own law officers. I consider that there was ample provision in the existing law to deal with that particular case. I am obliged to the Vice-President of the Executive Council for pointing out the limitation upon the power of discovery in section11 of theprincipal Act. It is quite true that that limitation does exist, but there would have been no such limitation if the Government, through their AttorneyGeneral, had sanctioned the taking of proceedings by some individual - by for instance, those who were refused coal.
– And who had themselves refused others.
– Do not let us introduce any matter of mereprejudice. Let us deal with the question in a business-like way.
– Those are the facts.
– Probably. I am not questioning that position, but if the facts were as reported in the newspapers - and the persons who made those statements would have been bound to depose to them when placed in the witness box - the existing legislation was amply sufficient to meet the case. I referred on that occasion to the provisions of section11 of the principal Act, and I frankly acknowledge that the limitation to which the Vice-President of the Executive Council refers does exist, but that could have been got over. The Government were entitled to say, “If you who make these complaints in the press are personally injured, as you must be if your complaints are well founded, we will sanction your taking proceedings, and there will be no bar.”
– We would quickly sanction the taking of proceedings.
– Then why do not the Government call upon those people ?
– I pointed out on the day in question that we would quickly give our sanction.
– If those people say,” We are injured by this action on the part of the Coal Vend,” there are two courses which the Government might take. They might either institute’ proceedings themselves, or say to those people, “ You are making these complaints. You say you are injured. Take proceedings, or else we will have nothing to do with it. We will consider that it is all a sham.”
– They will not do it.
-If they will not do it, why should the Government immediately say that the existing legislation is insufficient ? The legislation is amply sufficient.
– The Government will not even employ an accountant to collect their own revenue in the harvester case.
– At any rate, the Vice-President of the Executive Council knows that it was only in that respect that any remarks of mine which he regarded as reproaches were used. Then my honorable friend says, “We have had this Act, and we all thought that it was going to meet the cases which were then under the contemplation of the Legislature.” One of my main objections to the Bill which is now an Act was that it sought to interfere - and this is a matter to which my honorable friend referred in passing -with the rights of the States, because it not merely dealt with foreign corporations, but embraced trading or financial corporations formed within the Commonwealth. As at present every State has its own law with regard to the establishment of companies and the formation of corporations, it was pointed out that if a law of this kind were, applied within the States you might have under State jurisdiction a combination of individuals on one side of the street carrying on a mischievous business to the detriment of the community, and on the other side of the street a combination of corporations which the Commonwealth legislation professed to touch, while it could not touch individuals who were doing mischief, lt was shown that the law was one-sided in that it dealt or attempted to deal only with corporations. I mention that in passing, to show that the objections taken to the Bill which is now an Act were not exactly those to which the VicePresident of the Executive Council refers as a justification for this measure, but were taken very largely because of the inequality and unevenness of the legislation, and its practical inapplicability to that sphere - the States sphere - which it was intended to cover, and where, if it worked at all, it would produce those anomalous results to which I have, casually referred. Having mentioned those general matters, the Vice-President of the Executive Council commends this Bill because he says that it introduces no novelty in our legislation hi relation to matters of this sort. That statement was not very well considered or well-advised. The provisions of this Bill, are, I venture to say, in relation to this subject-matter, absolutely unique. Similar provisions do not’ appear on the statute-book of any. other country, so far as I am aware. I took the liberty of interrupting my honorable and learned friend to ask him whether there was any American legislation like this. The honorable senator said, in reply, that he was going into the matter very thoroughly, and I anticipated that he would mention some) legislation corresponding to it. But the honorable senator mentioned none. He sat down without submitting to the Senate anything at all parallel to the clauses in this very short Bill in relation to the subject- matter with which it is supposed to deal. The honorable senator referred to the provisions of the Inter-State Commerce Act of America - and let me say parenthetically that if there is any country in which we could expect to find a precedent for legislation of this description, it is that land of rings, trusts and combines, the United States of America. The Vice-President of the Executive Council will probably agree with me that we need not look for help in this matter to the legislation of any’ other country, and that if we “do not find such legislation in the United States we are not likely to find it anywhere else. The honor, able senator referred to the Inter-State Commerce Act, and to the powers conferred upon the Inter-State Commerce Commission by the original Act of 1887, and the Act passed last year in the United States. The first observation to be made in this connexion is that the American Inter-State Commerce Commission is a Court. It is a tribunal, and the power given to that body to call for evidence of every kind, for the production of books belonging to the parties who come before it, or might come before it, are powers incidental to those of a tribunal that can regulate and control a matter of the kind. It is an extension of just the same power as that which is contained in section 11 of the Australian Industries Preservation Act, with the limited scope which Senator Best has rightly pointed out. Once a matter comes before the Court, so that on its responsibility the Court can say whether or not a particular discovery should be made, I should be prepared in every way possible to assist the Vice-President of the Executive Council in securing the fullest powers of discovery, and in taking away all privileges in regard to statements likely to criminate.
– The point I was making was that the investigations made by this Bureau of Corporations, which forms portion of the machinery of the InterState Commerce Act-
– No, my honorable friend is mistaken.
– Perhaps the’ honorable senator will permit me to finish what I wish to say. I thought he was referring to the Bureau of Corporations for the moment. Their investigations made it possible for the prosecution of the Standard Oil Company subsequently to take place.
– I am not referring to that, and I do not know why the Standard Oil Company should have been introduced. It is like King Charles’ head, and, perhaps, a very fine thing to refer ‘to on the platform.
– It is the awful example.
– But it has nothing to do with the point with which we are dealing. I remind the VicePresident of the Executive Council, as’ I ventured to do the other day, with the assistance of Senator Needham, that the prosecution of the Rockefeller concern was not under the Inter-State Commerce Act, or the Sherman Act, but under a later Statute which had relation to the specific matter, and made it penal to procure rebates as defined by the Act.
– But it is one of the anti-trust laws of America.
– Yes, but a law passed specifically for this purpose, and I think very properly. The difficulty with respect to these rebates, as Senator Best has pointed out, cannot possibly arise here, because the railways all belong to the States Governments.
– Yes ; but we can have shipping rebates.
– That is so, and doubtless the reference is to the shipping ring which Senator Guthrie de, fended just now, and whose operations, I think, require investigation more than anything else within the borders of Australia. But if these combinations and others enumerated by Senator Best, who, I think, mentioned particularly a confectionery trust, do exist in Australia, it only shows either that no attempt has been made to enforce the provisions of the Australian Industries Preservation Act, or that they have not frightened people from entering into improper combinations. I was referring to the fact that the position of the American Inter-State Commerce Commission under the Inter-State Commerce Acts of 1887 and 1906 has no bearing upon this particular subject, because, in this Bill, what is proposed is that before a prosecution is commenced there may be an investigation of the whole of the books and affairs of a trading corporation or firm, because it is not limited to corporations except in so far as there may be a limitation imposed by the original Act. Under this Bill, before any proceedings are commenced, persons may be obliged to answer questions and produce documents under a penalty of £50, merely if . the Comptroller-General believes - and it does not say on . what grounds or whether they are to be reasonable grounds - or thinks that an offence has been committed. I say that there is no parallel to that kind of legislation anywhere. I have said, that I am prepared to assist in every possible way to give these powers to a Court after proceedings have been instituted, just as in America these very wide and drastic, powers have been given to the Inter-State Commerce Commission, which is a Court.
– The Supreme Court in the United States often sets aside the decisions of the Inter- State Commerce Commission..
– Just so. It is, I suppose, subject to the jurisdiction of the Supreme Court of America as the Inter-State Commission provided for in our Constitution is, in matters of law, to be subject on appeal to the jurisdiction of the High Court. Section 20 of the Inter-State Commerce Act of 1906 provides that - ‘
The Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act.
That is under the control of the Court, which is called the Inter-State Commerce Commission -
And from the owners of rail-roads engaged in Inter-State commerce as defined in this Act. To prescribe the manner in which reports shall be made and require from such carriers specific answers to all questions on which the Commission may need information.
Then is provided the details which shall appear in the annual. report, just as in our Companies Acts, and particularly under the Victorian Act, every company is required to supply under statutory declaration by its directors a full statement of its position. Under this Bill what we are asked- to do is to hand over to a Government officer who is not a Court, and is not vested with the responsibility of a Court, the power, before any proceedings are instituted, to harass every trader, merchant, or manufacturer throughout the length and breadth of the Commonwealth. This may be done, although no such proceedings may ever be instituted.
– Or to abstain from the exercise of these powers.
– And the converse is, I think, just as reprehensible. This Government officer may abstain from the exercise of these powers in circumstances which, perhaps, might be held to justify proceedings. I cannot imagine any provision which more urgently requires some stronger justification than that which has been- submitted by Senator Best. Naturally the honorable senator referred to the only country where they might expect to find some precedent for this legislation, but he has not been able to indicate anything of the kind. I draw a great distinction between the giving of this power to a Court and to an executive officer of the Government. If is proposed in this Bill that merely on his belief, and not upon evidence or after hearing the parties, a
Government officer may, without the knowledge of the man whose books are to be exploited, send three or four officials to a manufacturer’s factory, or a merchant’s counting-house, some fine morning, to investigate the whole of. his affairs. This I consider a terrible menace to the traders and manufacturers of the country, and this action may be taken on no ground except that the officer believes that an offence has been committed against the provisions of the Bill.
– If we had such a power just now, we should have three or four successful prosecutions instituted.
– We might have had them without this power if the Government had moved in the matter.
– Certainly we might. I put it to Senator Findley that under this Bill there might be a thousand men harassed throughout the Commonwealth, whilst only one prosecution might follow. Where proceedings are actually commenced, I say we might make the law as drastic as we please for the purpose of securing evidence. We might put the men charged in the box, and make it obligatory on them to answer questions. We might make it, not merely permissive that they should give evidence in their own behalf, but that they should be compulsory and compellable witnesses for the prosecution. That is the remedy. But I say that if we make the provision set out in this Bill, we may harass a thousand manufacturers and traders of all kinds, and then have no prosecution, or only one.
– What would the honorable senator do with people who allege grievances and make statements in the press, which they will not afterwards substantiate ?
– We might have a provision to penalize persons who make such statements with the object of bringing the law into operation and do not substantiate them. I agree that it is most mischievous that statements should be made by irresponsible persons to the press, and agitations got up without foundation. What I am afraid of is that if such an agitation is got up, there is under this Bill endless possibilities of inflicting injury, inconvenience, and a harassing condition of affairs upon scores of persons against whom there is no possibility of an offence being proved. The Government sends these three or four officers, who are to act as detectives, into the counting; houses and offices of the manufacturers and merchants all over the country, simply because the Comptroller-General thinks or believes - it . may be without any grounds- whatever-
– The Bill does not state that.
– Yes, itdoes.
– Such things do not takeplace under the Customs Act.
– Certainly they do not; but the worst of it isthat .under this Bill a man may be sub- ‘jected to all these disadvantages without having an opportunity of proving his innocence. He would be injured by the information being ‘spread all over the place that a bevy of officers from the Department had been overhauling his affairs.
– Does not the honorable senator think that there is a tendency to exaggerate what would happen? The Comptroller-General would not take such action unless he had reason to do so.
– Such things do not takeplace under the Customs Act.
– That affords no analogy for this kind of thing. Is it not possible, under this Bill, for people who are absolutely innocent, anc? against whom such an inquiry is not justified, to be subjected to it ?
– The same applies toevery law.
– No. If there are any gr’ounds whatever for supposing that an offence has been committed” by all means take proceedings. If proceedings are taken in a Court, a man has an opportunity of defending himself and” showing that there is no reason for them.
– Would it not savea lot of trouble if information were obtained before the proceedings were commenced ?
– I quite agree with that. But it is not proposed, under this Bill, to impose penalties on account of what has taken placeafter investigation before a Court. If theComptrollerGeneral thinks that an offence has been committed - the Bill does not say upon reasonable grounds, or after hearingevidence, or after calling the man who is accused before the Comptroller-General: - a> penalty may be imposed.
– A complaint would have to be made before the fine was imposed.
– No. Let my honorable friend look at clause 4, proposed new section 15B.
– What about 15c?
– Under 15B the Comptroller-General may, entirely on his own motion-
– Where is the penalty?
– It says “ Penalty, £50.”
– That is if a person refuses to’ answer questions or produce documents.
– If he does not produce documents or give information this penalty may be imposed. He may have an absolutely good reason for refusing to answer or to produce a document. But if he refuses an answer to a question put to him1 by the ComptrollerGeneral, or his officer, he is liable to a penalty of £50.
– The ComptrollerGeneral, or his officer, will have to go to Court before the penalty can be imposed.
– The penalty is for refusing to produce documents or answer questions.
– Quite right, too.
– But the Court cannot go into .the reasons for refusing.
– Yes ; ‘ the person only has to pay .the penalty if the Court awards it against him.
– Where does the Bill say that the Court can investigate whether the person has a good reason for refusing?
– The Court has to inquire whether an offence has been committed.
– And the offence is “ refusing to produce documents or answer questions.” There is nothing to entitle the Court to inquire whether the person has a good reason for refusing or not. What is the offence? The offence is failing to answer questions or produce documents. The only judge is the ComptrollerGeneral.
– Oh, no.
– But the clause says -
No person shall refuse or fail to answer questions or produce documents when required to do, in pursuance of this section.
Penalty : Fifty pounds.
– We must assume that the Comptroller-General would have reason for exercising such a power before he would consent to exercise it. He is to act as a judge in the matter.
– The Comptroller- General is not even made a judge. If a person says, “ I must decline to answer that question,” he is liable to a penalty of £50, and the magistrates, before whom the proceedings are taken with a view of enforcing the penalty, will have to impose it without inquiring into the validity of the man’s reason one way or the other. My desire is, as I have said, once the proceedings are begun, to assist in every way in giving the most ample powers to the Court to require evidence to be produced. I agree with Senator Lynch in that respect. But if this means, not that evidence is to be obtained in a proper manner, but that the Comptroller-General is to make use of the press, by indicating paragraphs which have been published, that is the sort of evidence that I would not give five minutes’ attention to.
– It is because the Government have listened to such complaints that we have before us this amending Bill, which will do an immense amount of good.
– I think it is a very mischievous Bill - a Bill which, if it becomes law, will simply cause a very serious interference with the trade of’ this country. The Minister’s answer to that is that we can trust the ComptrollerGeneral not to proceed except when he has good grounds. My view is that we ought not to give these extended powers. It would be very much better to restrict the powers within reasonable limits, so that no one can abuse them, particularly when we are dealing with that which is so sensitive as the trade and commerce of the country. Proposed new section 15c in clause 4 deals with the action of the Comptroller-General when a complaint has .been made to him in writing. There, again, it does seem rather unfair that the Comptroller-General should act upon a complaint, if he believes it to be well founded, without any hearing of the other party. We should surely give him an opportunity of having the party before him, and hearing what he has to say, before these very strong powers are put into force. There may be no foundation for the complaint. But the complaint having been made, the Comptroller-General is to send his officers to explore the books and the accounts of the accused.
– To work up the case and get all the evidence that can be obtained.
– The object of a person who has given information may be served by harassing his rival. His object may be served by putting the officers on the track or by smudging the reputation of a perfectly honest manufacturer or dealer; because it would smudge his reputation if it became known.
– The honorable senator must take the Comptroller-General of Customs to be a very simple man.
– I take him to be a Government officer. That is all I take him to be,, and I say that these powers are such as ‘ ought not to be en-“ trusted to any Government officer whatever. My honorable friend Senator Best sought to show that such powers as this Bill proposes to confer are now exercised in the United States. I have shown that the special powers conferred upon a tribunal like the Inter-State Commission of the United States have no relation to such powers being conferred upon a Government officer. My honorable friend also suggested that there was some precedent for these powers, and referred to the Commerce and Labour Act passed by Congress in 1903.
– Is that the Act creating the Bureau?
– Yes. But under this Bill what is proposed to be done is to confer these extensive powers upon the Comptroller-General. For what purpose? For the purpose of litigation - for the purpose of initiating and carrying on proceedings with a view to the imposition of penalties. But my honorable friend Senator Best did not mention that the American Act establishing the Bureau of Corporations was not passed for the purpose of obtaining information with a view to litigation at all.
– The Bureau was established under the 1903 Act.
– Yes ; but it was not established for the purpose of securing evidence with a view to litigation.
– I showed how, in Amenca, they make good use of the information obtained for the purpose of prosecutions.
– What does the Department get the information for?
– The Department gets it ; that is the point.
– I am not prepared to say on the spur of the moment whether any abuse has taken place in regard to the information obtained by the Bureau of Corporations. All that I say is that if the Bureau of Corporations obtains the information for the purposes indicated and expressed in the American Act, it would be improper to use -it for any other purpose. What the Act was passed for was a totally different purpose. It was passed with a view to get information by means of -
Diligent investigation into the organization,’ conduct,, and management of the business of any corporation, joint stock company, or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers, subject to “ An Act to regulate commerce” approved 4th February. 1887. and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.
– It was what we call a Royal Commission.
– That is what it was. It was a kind of Royal Commission to obtain evidence with a view to legislation. And that, of course,- is a perfectly proper thing. It is quite right to inquire with a view of obtaining information to be submitted to Parliament in considering legislation. But it is not a proper thing to make such an inquiry the foundation for an investigation . into the books of trading concerns, manufacturers, or merchants, with a view to prosecutions. Of course, if the information becomes public, we cannot prevent people making use of it in any way thev please. But that is not the object. The Bureau was established, like our own Tariff Commission, for the purpose of netting information to enable Parliament to legislate. The information becomes public just in the same way as the information obtained by our Tariff Commission becomes public -
It shall also be the province and duty of the said bureau, under the direction of the Secretary of Commerce and Labour, to gather, compilepublish, and supply useful information concerning such corporations doing business within the limits of the United States as shall engage in Inter-State commerce b-tween the United States and any foreign country.
The Inter- State Commission has nothing to do with combinations, or trusts, or anything of the kind. All that it has to do with is matters regarding transportation.
– It has something to do with trusts. The Act of 1887 specifically refers to them.
– Only so far as they are common carriers.
– Quite so; but it specifically prohibits pools, combinations, and collusive arrangements.
– Exactly ; but with respect to the business of common carriers.
– Of course.
– That is much more than the freights.
– They regulate rates both differential and preferential, and rebates’, subject, of course, to the powers given in the later Act.
– What about the differential prices charged for goods intended for a neighbouring State?
– That has nothing to do with trie Inter-State Commerce Act, which, in America, is . restricted to common carriers. So that, practically, the provisions of that Act are simply an extension of the powers which might be contained in any Act relating to corporations or companies, and the purpose of the Act was really to - gather such information and data as will enable the President pf the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.
That is literally a proceeding by a body in a situation analogous to that of a Royal Commission, under our system, for the purpose of acquiring information. If we are to be guided or assisted bv preceding legislation, or precedent in other countries’, the Minister has mentioned none for our guidance. There is none in that country which, of all others, is a land of rings and combinations, and where we should expect to find an example of such legislation as is now contemplated if there is one to be had.
– And none in. Great Britain, which is nearly as bad.
– Of course there is none in Great Britain, where we should not expect to find it.
– Where there are rings and combinations.
– We should not expect to find it in Great Britain to the same extent as in ‘ America, which is said to be far excellence a country of rings and combinations. There is none in England, as my honorable friend reminds me, and there is none in America, where certainly we should expect to find it. I do not know whether honorable senators think it is a good thing to embody in a Bill of this kind the principle contained in the proposed new section, 15A, which means practically that every man is to be presumed to be guilty until he proves himself to be innocent. Of course, what it does mean is that the moment a company embarks in business it can be brought into Court as one which is prima facie guilty until it proves its innocence. That is a very necessary thing in many respects, and in many branches of the administration of the Customs Act. But, surely, it is not necessary in matters of this kind, where some effort ought to be made, not by a person who is. communicating irresponsible paragraphs to a newspaper, but by some responsible person, who will get into a witness-box, and, under the sanction of an bath, state facts upon which proceedings may be founded, and unless in a case such as that we ought not to presume any trader to be guilty until he discharges himself of that imputation.
– There are qualifications as the honorable senator knows.
– What is the good of my. honorable friend making that remark ? The qualification is the one which is contained in the Customs Act, and that is that the intent must be proved. The moment a man goes into Court he is presumed to be guilty, and if they fail to prove the intent he may still be thought by the public, or those with whom he has to do, to be guilty of the charge of being engaged in a combination.’ I think that we ought to read the Bill a second time, even if only to affirm the intention of the Senate in regard to trusts and combinations which are supposed to be mischievous. But I venture to say that this is a measure without precedent, and one which if passed will prove inimical and hurtful to the best interests of the traders and manufacturers in this country. We ought to be slow to agree to these clauses at all, and certainly slow to agree to them without considerable amendment with a view to their improve, ment.
Debate (on motion by Senator Millen) adjourned.
In Committee (Consideration resumed from 4th October, vide page 4276):
Fruits. - Dates; (period) 15 years; (rate of bounty) id. per lb. ; (maximum payable in any one year) ;£ 1,000.
Senator ST. LEDGER (Queensland) £5.8]. - If it is true, as has been said here so often, that almost anything can be grown in Australia, I dare say that it is possible to grow dates. I believe that, experimentally, a few date trees have been grown in or near Barcaldine, in Queensland. When I was there quite recently I was told about the few date trees which are grown .in that locality. Possibly the Minister, with that exemplary diligence which he has displayed in the conduct of this Bill, mav be able to find in Australia another place where date trees have been grown, and where they can be grown successfully. I have searched in vain for such indications outside the little district of Barcaldine. We should be furnished with more definite information than is contained in the report of the experts before we are asked to approve of this bounty. Is it to be paid upon the production of the dates in a natural state or in a marketable condition? I have not yet heard of a single place in Australia where a date has been made marrketable. .We are entitled to receive from the Minister some evidence that the grant of this bounty is likely to be attended with a reasonable degree of success. . I have not yet heard of any place in the world where a bounty to the amount of £15,000 has been voted on the mere assertion of experts that an article might possibly be grown in a locality. I may possibly again lay myself open to the charge of looking out for Queensland all the time, and yet sometimes voting against its interests. I do not care two straws about that. . Notwithstanding the fact ‘that a few date palms are growing in the central portions of Queensland-
– Then, no doubt, Senator Guthrie will be able to point to the fact that there are vast oases in some portions of that awful locality, where even date palms are growing. But can he say whether any dates from those palms, apart from those grown for experimental purposes, have been put upon the market as a marketable transaction ? There are a few date palms growing in Queensland, and, according to the report, the character of the climate and soil in that particular locality goes to show that if a man has faith, .and if some amount of industry and capital is put into the industry, possibly the dates may become a marketable article. I do not know whether the Minister of Home Affairs will wait until he hears more of the possibilities of the date palm in South Australia and Queensland. I am giving the extent of my local knowledge in regard to Queensland. I believe that what I have stated has also been mentioned in the experts’ reports. Of “course experts have a remarkable strength, or weakness, for giving evidence in favour of that particular industry, or occupation, or department of which they are in charge, in order to exalt its importance. I am delighted to hear now that Queensland has not a monopoly of a few date palms. I have had an opportunity of travelling over a large section of the State of Queensland. I have seen its mining and agricultural districts from the Gulf’ of Carpentaria to Brisbane, and during the whole of my travels I only heard of a few date palms in the State. Possibly now that I have drawn attention to the fact that we really have .a few struggling or straggling date palms-
– What size do they grow to in Queensland? .
– I am not an encyclopaedia of information on the subject.
– If the honorable member were a goat could he get shelter under one of them?
– I am not quite sure of that. At Barcaldine and other places we do not search for shelter from the heat of the sun under date palms. We generally seek it somewhere else, as honorable senators opposite probably know. As South Australian senators have something to say from their personal knowledge about the prospects of the industry in that State, no doubt the intelligence of the Chamber will be added to. and we shall obtain some light on the subject. I see no sufficient reason so far for offering this bounty of £15,000 for dates.
– Senator St. Ledger is making a mistake which is hardly excusable at this late stage of the debate. In passing this Bill we are not paying the money. All that we are doing is offering a payment. If dates cannot be grown in the Commonwealth there will be very little, if any, financial responsibility under this item.
– Then offer £1,000,000 for dates. The Government will not lose anything.
– We do not propose any. such extensive appropriation. Dates have been grown at Barcaldine, as is stated in the experts’ report. They are grown, certainly not in very large quantities, in the vicinity of Oodnadatta, in South Australia, and have been placed upon the market. If I had thought that any honorable senator entertained serious doubts about the capacity of Australia for growing dates, I should have been in a position to place upon the table of the Senate some of those which have been grown and put upon the market in South Australia.
– Is there any difference between them and the imported dates?
– I am told that they are very much superior to the imported dates, or, at any rate, that they are quite equal to most of the imported, and superior to some.
– Will the Minister agree to insert words to show the stage at which the bounty will be payable - whether on the green or the dried fruit?
– I do not propose to accept an amendment of that kind. I know the dangers attendant on any amendment of this schedule. The provisions in the measure are that the bounty is to be paid on goods of a merchantable quality and sufficient quantity, and, in relation to food products, on goods which are of the prescribed quality. Under those provisions the administration will be properly safeguarded. A considerable industry in date production exists in other countries, and if Australia can grow dates there is no reason why we should not offer some inducement to our people to endeavour to cultivate them for the Australian market. It takes five or six years before the tree comes into bearing, and even then it is from twenty to twenty-five years before it attains its full bearing capacity. But it bears for a period of something like 180 years. In Egypt each tree carries from eight to ten bunches of fruit. According tothe experts’ report, 500 trees are planted on one acre, and the average return per tree is 4s. The experts add -
Date palms at Barcaldine and in parts of Southern Queensland have yielded as many as eight bunches per tree.
That is about the average which they yield elsewhere.
– Is any process required in the drying?
– I am not in a position to say. Egypt has about 4,000,000 trees, and Tunis has about half that number. Those trees bear generally from eight to ten bunches, or about the same as those in Queensland.
.- I have asked a great many gentlemen the very simple, but to me very interesting, question of how the dates become dates. Are they taken green from the tree, or do they dry naturally into the very nutritious and delicious article that we see in the shops? Is any process gone through to dry them?
– They are treated in the same way as figs, which are picked green from the trees.
– Are they dried into dates like grapes are dried into raisins? Before grapes are dried into raisins they require to be carefully dipped in a solution containing soda and other ingredients. They have then to be dried in the sun, but if rain is allowed to touch them, their value for raisins is destroyed. The clouds have to be watched, andthe moment there isa sign of rain, all the trays have to be taken inside or covered with tarpaulins. How is a man to proceed in cultivating the datepalm? Is very rich land required? I understand that date palms are of great size. As only 150 apple trees - in some cases 165 - are planted to the acre, I cannot conceive how it is possible to grow 500 date palms to the acre. What part of Australia will they grow in? Is it only in the direction of Oodnadatta? That is a very unsettled district.
– They grow at Hergott Springs.
– Oodnadatta is among the sand hills and in desert country, and I am not sure that anybody is. likely to go on to desert land to earn a bounty by growing dates.
– I think they grow on comparatively arid land.
– If that is so, and it is news to me, why on earth should we give a bounty for planting date palms on arid. and bad land? If there is a decent industry in the cultivation of the date palm, would it npt be taken up without this bounty? Shall we not be attracting the energies and capital of white men away from industries which pay much better? Can we ever make a permanent industry of it? I should say not. Although a proportion of this great continent may be in the tropics, it does not at all follow that it is capable, as many honorable senators suggest, of growing every tropical plant that we have ever heard of. I am satisfied that we shall find that Australia is not suitable for the production of some of the articles on which we have agreed to grant bounties. It is possible that other tropical countries may be suitable for the- cultivation of the date palm. Apparently the Minister has to depend in these matters on the information given by experts, but in this case I think the experts have not looked up their case, have not given much attention to it, and have entirely overlooked the practical side of the proposal. I think that in this case, as in the case of some of the other items, even the expert information supplied has been absolutely misleading. . We have gone quite far enough with this Bill ; we have voted for the granting of enormous sums of money as bounties, and I am not prepared to support this item.
– Senator Dobson’s speech has brought me to my feet. The honorable senator may be a very good lawyer, but I do not think he is much of. an agriculturist. I do not profess to know much about date-growing, but in my travels in South Australia I have seen date palms growing well at several places. I do not think that their successful cultivation- depends so much upon a particular character of soil as upon a sufficient water supply. There are artesian bores where the date palm is grown in South Australia, and these provide a sufficient supply of water. I am justified in saying that splendid dates are grown in South Australia. I have eaten them; they are really good, and I am only sorry that I have not some to give to the honorable senators as a sample. We have in connexion with this item heard the old cry, which has been raised dozens of times during the consideration of the Bill, that we are proposing to squander a lot of money, and I again point out that, if the articles on which it is proposed to grant these bounties are not produced, there will be no money spent under the Bill. If, by offering to spend this money, we shall induce people to go in for the production of articles that are not at present being produced in Australia, we shall be doing good work without any risk at all. I have much pleasure in supporting the item.
Senator Colonel NEILD (New South Wales) [5.35].- I cannot but regard this Bill, and particularly this proposal, as a mischievous attempt to induce people to abandon reasonable industries, and attempt to obtain a living at the public expense by mere outside experiments. The date palm is not a tropical palm. It is found chiefly in Arabia and other portions of Western Asia and in Northern Africa. Small groups of date palms are found surrounding springs in oases in desert regions. I must say that I have no knowledge of the elaborate cultivation of the date palm in any country, and if it is so cultivated it is probably in Syria, from which the largest supply of dates is received. I complain that the item is submitted to the Committee in a most crude form. Dates have no earthly value unless they are treated. The fruit as it comes from, the tree is of no value, and it must be sweated and pressed, and undergo different processes.
– What processes?
– I do not happen to be a Syrian, a Kabyle, or Arab, and therefore I cannot tell the honorable senator.
– Nobody else has told us, not even the Minister.
– I think it is the duty of the Minister to advise us in this matter. I am opposed to the proposal because of ‘ the exceedingly crude manner in which it is submitted, though I should be prepared to vote for it if I were supplied with information which, in my opinion, would warrant me in doing so. I do not believe that the date palm can be grown successfully in Northern Australia. In the coastal districts of the north the atmosphere is damp, and is, therefore, unsuited to the growth of the date palm as we know it. Inland we get to the plateau country, which possesses a dry climate, suitable for the growth of the palm, but I’ believe there are few there and no sufficient supply of permanent water.
– There are plenty of artesian bores there.
– If the date palm can be grown successfully in Aus- tralia only by putting down bores to secure artesian supplies, I am afraid there is but a poor look-out for any one who may expect to obtain this bounty. In the inland districts we may find a suitable atmosphere, but I am doubtful about the suitability of the soil, because I have no means of comparing the sand of the desert of Sahara with the soil of the interior of North Queensland. If we have to go to Central Australia to grow dates, we must consider the bearing on the proposal of the question of carriage, an important matter which very many people overlook.
– We should have a railway running close by if dates were planted in Central Australia.
– The honorable senator is speaking of central South Australia, and of the railway which his State wants to trade off on the Commonwealth, because it only pays to run a train over *it once a fortnight. I do not think the honorable senator is wise to trot out that railway, which has been in existence for twenty years, and has been a howling “ frost “ from the time it was constructed. If the Minister would, say whether the proposed bounty is to be granted for green dates or for the sweated, pressed, and packed dates of commerce, we might know what to do, but with the information at present before me I am unable to support . the item.
– I do not altogether agree with the attitude Senator Neild has adopted in connexion with this item. It seems .to me that it is in quite a different class from most of the items we have been discussing. It is probable that the Government have introduced this item with the idea of doing something towards lessening the death-roll of the unfortunate people who endeavour to make their way from north to south through the centre of Australia.. I remember that, in reading one of the reports by a South Australian botanist or explorer, I found he proposed to plant date seeds along the line between Adelaide and Port Darwin, and in the middle of the continent. For some unfortunate reason the seeds did not come to hand, and so he did not plant them. From what I know of the habits of the date palm, I am inclined to think that it would grow very well in that country, and that if it were planted good results might follow to Australia generally. I believe the date palm could not be successfully cultivated on our tropical coast-line, where we have a heavy rainfall, whilst the attempt to cultivate it might be successful in the interior of Australia. I. direct the attention of the Minister to the fact that we have passed bounties in respect of certain items where the plants come into bearing in five, seven, or eight years. Here we have a plant which, if sown from seed, does not come into bearing for from ten to twelve years, and, according to one authority, does not come into full bearing for from twenty to twenty-five years. I notice that the bounty is spread over a period of fifteen years, and, in view of the” fact I have mentioned, that period would be “too short a time, unless it is the intention of the Government that the bounty shall be spread over a period of fifteen years from the date when the first of the trees earning the bounty come into bearing. That is a matter to which the Government might give some attention. A much more serious matter is that, in spite of my interjection, the Minister not only declined to give any information as to the form in which the dates must be presented to earn the bounty, but, further, said that he would not agree to make any provision on the subject in the Bill, as the matter ought to be left to regulation. The honorable senator quoted a clause showing that the bounty is to be paid only on goods of a quality prescribed. -
– Of a merchantable quality.
– Yes, of a merchantable quality. If this item is proposed to enable travellers through Central Australia to get green dates - and the inside ‘ leaf of the palm is just as wholesome as cabbage and exceedingly good eating, whilst certain liquids which can be got from the palm are useful for drinking purposes - the least the Government can do is to tell us so. I might then be more inclined to vote for the item. But if the idea is to induce people to establish groves of date palms on a considerable scale in order to put the date of commerce on the market, the word “dried” should appear after the word “ dates,” in order that it may be perfectly clear that the item refers to the date of commerce, and not to green dates. I have here a copy- of Chambers’ Encyclopadia, which I looked up to make sure of my ground. I find a statement, under the heading of “ Date Palm,” which bears out what I have said -
The fleshy part of the fruit contains .58 per cent, of sugar, accompanied by pectin, gum, &c.
The fruit is eaten either fresh or dried, and in the latter state becomes an article of commerce. Cakes of dates pounded and kneaded together, and so solid as to be cut with a hatchet, are the store of food provided for African caravans on their journey through the Sahara.
I quote that to show that it is the dried date which is the article of commerce. If the Minister will agree to insert the word “dried” after the word “Dates,” it will carry out the intentions of the Bill, and make it clear that, although the green date is a fruit which can be eaten, and may be merchantable within a short radius of where it is grown, what is desired is to encourage the date-drying industry/ I move -
That after the word “Dates “ the word “Dried” be .inserted.
Senator Sir JOSIAH SYMON (South Australia) [5.48]. - I referred to this, item in my speech on the second reading of the Bill, but I wish to add a word or two in support of what Senator Chataway has just said with regard to the indefiniteness of the proposal. He has pointed out that there is nothing to show- whether the item means that a bounty is to be given on the production of so many pounds of green dates <or so many pounds of fruit which have been subjected to the process of drying. As the Bill is worded, the bounty may be claimed both on the green’ and the dried fruit, because clause 4, though it- enables the Minister to prescribe as to “ merchantable quality,” does not enable him to prescribe, as to the form, or as to whether the goods shall be subject to any particular process. The clause says that the bounty shall be paid in respect of goods which are of a merchantable quality. That may mean either the green fruit or the dried. The schedule does not define whether the bounty is to be paid upon the production of so many pounds of green fruit, like apples or pears, or whether the dates are to be dried and packed. In the case of fish, the bounty is not to be given upon the fish as caught from the sea. If the schedule said merely “ fish,” clause 4 would not enable the Minister to say that the bounty should be given on preserved fish only. But the schedule requires the persons obtaining the bounty to preserve, dry, or smoke the fish. The word “quality,” in clause 4, does not -mean the condition or form of the goods. As applied to fruit, it means its quality as dried fruit, or, if green, its quality as green fruit. If we desire that the bounty shall be paid on dried dates, we shall have to insert a definition in the Bill.
– Why not give the bounty on both green and dried dates?
– A bounty of id. per lb. might be very ser- viceable to a man who simply produced so many pounds of green dates, but it would not be the same thing to a man who had gone through the process of preserving the dates and making them into a commercial article.
– The man who pre- ‘ served them would” get less, because they would be lighter when dried.
– They would be heavier if preserved in syrup.
– Dates are not preserved in syrup.
– Yes, they are. .
– I never saw them so preserved. I have seen dates growing. They are grown near Hergottin South Australia, upon what has been referred to as an oasis, and more excellent dates were never grown anywhere, I should think. They are packed and prepared as an article of commerce in very nice boxes.They are very much more fleshy than those usually seen in grocers’ -or fruiterers’ shops. In the case of, the next item, fruits, the schedule says, ‘ ‘ Dried (except currants and raisins) or candied, and exported.” The object is not to -give a bounty on fresh fruits, because there is npt a country in the world that is better fitted for the growing of fruits than Australia. The Minister might very well adopt the amendment moved by Senator Chataway.’ Without it the item will be ineffective.
Amendment agreed to.
Item, as amended, agreed to.
Item, “ Fruits - Dried (except currants and raisins) o.r candied and exported agreed to. .
Combed wool or tops, exported ; (period and rates of bounty), 2 years, commencing from 1st July, 1908, 1½d. per lb., and thereafter, three years, id. per lb. ; (maximum payable in any one year), £10,000
– I propose to ask the Committee to accept two amendments in- this item. The first is one altering the date from 1st July, 1908, to 1st January, 1909. The reason for that is that I am informed by practical men that the machinery cannot be obtained in Australia, and put in working order, before the 1st January, 1909. Then, again, with regard to the rates .of bounty, it will be observed that it. is proposed that for two years it .shall be i£d. per lb., and there- after for three years1d. per lb. My informant, a practical man, is prepared to put . £50,000 into this business, and he tells me that he would like the bounty to be1½d. per lb.for three years,1d. in the fourth year, and½d. thereafter, making it a tapering bounty. One reason why I support this bounty is because the machinery for making tops is imported, and will have to bear a duty of 25 per cent. If machinery to the value of , £50,000 is imported it means that those who start the industry will have to pay £12,500 in duty upon it. Here is a case which shows the way in which heavy duties act adversely to the establishment of industries in Australia. Therefore, one reason why I am in favour of the bounty is that those who desire to enter into the industry are hampered by the heavy protective duties on machinery. I invite the attention of honorable senators to a specimen of tops made from Australian wool by German manufacturers while I read a few extracts from the experts’ very interesting report on what promises to be quite a new industry in the Commonwealth -
It is stated that the project of turning wool into tops in Australia and the Argentine has been inquired into by Continental firms during the last few years, but no further progress has been made, the principal objections being the cost of manufacturing owing mainly to the higher wages rate.
It is stated that if by means of a bonus the manufacture of tops were established, it would be of distinct advantage to the wool trade, from a wool-grower’s and seller’s point of view, by increasing competition, and this would be more especially so in the case of tops made from sheepskins. This would react favorably on value of sheep and on the frozen meat export trade by increasing the value of the sheepskin.
Considerably increased employment would be given locally,
I am told that it is really marvellous how many additional hands could be employed - and the industry of treating sheepskins encouraged, instead of as at present exporting the bulk of the sheepskins to foreign countries in a raw state.
The industries of tanning basils and gluemaking would also be favorably affected.
Top-making for export, it is believed, can be successfully established here with the aid of a bonus for a period of five years,
My informant states that that is so. He has no hesitation in expressing his belief that at the end of five years the industry would be established on a firm basis. The report continues - after which, if conducted on a large scale and in proper hands, the industry should well be able to stand alone, and once it has been demonstrated that it can be conducted successfully it should take rank as one of the first industries.
– The honorable senator says that his informant indorses the statement that, by the aid of a bounty, the industry could be established within five years.
– Yes, and I will read an extract from his letter presently. The report continues -
The factors in favour of making tops in Australia are : -
By treating the wool whilst fresh, and avoiding the hard pressing of woof (which causes deterioration), a better product will be obtained.
The climate and the quality of water available are much in favour.
The uncertainty (as to yield and quality)’ in buying will, to a great extent, be overcome ; instead of purchasing thousands of bales and having to wait months for the result, tests can be made and the buyers’ judgment supported from time to time. This would commend itself to all firms buying in Australia, and if an up-to-date works were erected, would be much availed of by buyers.
Contracts for supply of a standard article would be easier to negotiate, thus regulating the market.
Saving in freight.
The favorable position to secure Eastern), markets.
The local trade in manuf acturing cloth that might be developed as a result of the establishment of large top-making establishments from which spinners and weavers could draw supplies more economically than manufacturing themselves in a small way.
If a fellmonger and woolscourer in Australia -
My informant is a fellmonger and wool scourer in a large way of business - is able to successfully compete, as he seems to do at the present time, with continental operators, he should be in a much better position if he converted the wool into tops straight away once: the industry became firmly established and the tops favorably known to manufacturers.
There is only one more short extract which I wish to read from the report -
It is saidthat the Australian tops can be produced very much cheaper than tops can be imported, and that the cost of making worsted yarn is considerably less than the cost of importing the same quality of yarn.
With regard to that matter, I propose to read an extract from a Leeds newspaper, which seems to recognise that there is a possibility of the wool industry becoming a success in Australia. The extract is from the Melbourne correspondent of the
Yorkshire Post, and appeared on the 13th
Within the past few years a marked change has taken place in the conditions of Australian trade as regards the raw material referred to. At the present time, it is well known here that the woollen manufactures of Bradford and other great Yorkshire towns have received a considerable stimulus of late. This fact so far, however, from damping Australian aspirations, would seem rather to encourage the belief - rightly or wrongly - in some directions that the Commonwealth is destined ultimately to become a great centre for working up the raw product into all marketable articles of woollen manufacture, and for their export from the Southern Australian coast towns to the vast neighbouring populations of Asia, as well as to Europe and America. Personally, I can offer no opinion on the subject, except that I can see no early prospect of finding the requisite expert labour. But the syndicate identified with the proposed undertaking is understood to have raised , £50,000 in New South Wales, and is reported to have made arrangements for an additional£50,000 to be subscribed in London to start with. Should the scheme realise the anticipations of the promoters, they indulge the hope that it may eventually absorb many millions of British and Australian capital .
The chief arguments in favour of the contemplated scheme may be briefly noticed. The first is the alleged economic advantage of having factories for utilizing raw materials as near as possible to the regions where these materials are best grown. The plan contemplated in Australia is to grow wool as at present, in Australian areas suitable for pasturing sheep, transfer the product by rail or steamer direct from the sheep-runs to manufacturing centres in the Commonwealth, and convert the wool into cloth by skilled white labour, imported, in the first instance, from England and the European Continent. It is affirmed that millowners here could afford to pay imported hands higher wages than prevail in Europe. The notion is gaining ground that the costs now incurred in sending buyers of wool to Australia from distant countries, in exporting the raw material from Australia to the countries where it is non extensively made into cloth, and in shipping the manufactured article to remote destinations from British and other ports could be saved.
– Surely that is a protectionist essay which the honorable senator is reading?
– I cannot help that.
– I am really surprised.
– The Government have levied such heavy protective duties on machinery that it is really necessary to give a bounty upon the production of combed wool or tops to induce persons to come here and start the industry -
The heavy expenses of agencies, banking commissions; and exchange on remittances, it is believed, could also be greatly diminished, if not quite avoided, in the interest of both manufacturers and consumers.
The altered methods of business in handling the raw material are very significant.
I may mention that this correspondence was contributed to a free-trade newspaper, which, to some extent, indorsed the writer’s remarks.
– Is it actually proposed that the manufacturers shall come here?
– Perhaps the manufacturers in the United Kingdom will join the manufacturers here in establishing works. In days gone by they have done that in Europe, and I do not see why they should not do so in Australia -
Ten years ago the total sales of wool in Australia amounted to 775,237 bales, or 52 per cent, of the total production. But during the wool year which closed on June 30 the sales within the Commonwealth amounted to about 1,350,000 bales, or, approximately, 82 per cent, of the total production, although but a trifling proportion was retained in any part of Australia for manufacturing purposes.
We know that every year the proportion of wool sold in Australia is increasing. The following remarks are made by the newspaper itself -
There is a very considerable trade done by Leeds with Australia, chiefly in low woollens, and it is this class of fabric that the Australians are being encouraged to produce……
Wherever the duty is increased upon British engineering imports, it would be tantamount to an additional burden upon manufacturers, notwithstanding that they are promised a slight preference over their foreign competitors.
I produce a photograph of the works of , my informant in Sydney, and it can be seen at a glance that he carries on an immense business. With regard to Japan, Mr. Suttor, Commissioner for New South Wales in the East, made the following reference to the manufacture of tops in a communication which he wrote at Kobe on the 8th July-
I am glad to note that you are now going in for the manufacture of “tops.” The importations to Japan are gradually on the increase. During 1906 they amounted to 5,421,337 lbs., valued at£602,555 16s. ; and, judging from conversations I have had with principal importers, I should say that all grades up to 70’s are imported. If you can deliver the tops, as mentioned, at½d. per lb. below European quotations for similar qualities, you can rely that business will be transacted. In Japan everything depends upon the price quoted.
We ought to be able to do that, because at present we have to send the wool to England, bring it back in the form of tops, and send them to Japan. Surely if we were to manufacture the tops here we could afford to send them to Japan for½d. per lb. less than English or European tops could be sent there for.
– Yes, but Japan will be producing tops by-and-by, because it is opening up Manchuria.
– My informant says -
Of course, if the bonus be granted the venture is not one to be made lightly, for, -in addition to the probability of others going into it when a pioneer has paved the way, the wool market (always an uncertain factor) might easily go against one to a much greater extent than the 3£ per cent, to 5 per cent, of value to which the bonus would amount. Notwithstanding this, I feel pretty certain that if you can see your way clear to advocate and secure the suggested alteration, it will enable me for one, and I shall welcome the co-operation of any one who proposes to go into the industry, to add to my present works the necessary plant to demonstrate the practicability of successfully exporting tops instead of raw wool, with the resources at the command of myself and my friends amounting to ^50,000.
– They are” all coming round to protection, one by one.
– Even Senator Walker.
– I am not a protectionist ; but if we impose heavy duties persons who are punished by them have a right to expect some little bonus until they get over their initial difficulties. How is a man to import £50,000 worth of machinery and pay a duty of 25 per cent., and yet be able to compete with persons who can get that machinery without any duty? The fault of the protective system is that once you protect one part you have to follow suit to some extent with other parts, and a very bad thing it is from the start.
– Why continue it?
– I am not one to continue it, but I want -to see Australia become a big country, to encourage immigration, and to provide employment for those who do come here. Therefore, we are justified in doing what we reasonably can to establish a great industry in wool. Wool growing is an industry natural to this country.
– Were there any sheep here in the early days when Captain Cook brought the first white settlers?
– I believe not. I move -
That the words and figures, “July, 1908,” be left out, with a view to insert in lieu thereof “ January, 1909.”
Senator McGREGOR (South Australia) [6.17I. - I am only induced to speak by the amendment. I should have supported the item without expressing any opinion, because I firmly believe that it will be greatly to the advantage of the wool-growers and woollen manufacturers of Australia. I heard something about this proposed bounty some time ago, and have been making inquiries. I have been told by -the very best of authorities - a man who was some time ago the wool expert of South Australia - that although a great many of .the small manufacturers in that State at present make their own tops, it would mean a saving of id. or 1½d., or even more, per lb. if the tops were manufactured in a large establishment such as was described by Senator Walker.
– Surely, then, that would be a sufficient bounty ?
– No. The difficulty is to induce people to start the industry. As we desire to encourage such a large industry as this in Australia we should grant this bounty, and also agree to Senator Walker’s amendment, because, as it may be the end of this year or the beginning of next year before the Bill becomes law, it would be impossible for any manufacturer or company of manufacturers to obtain their machinery and have everything in order by July next. Even an extension to 1st January, 1909, is hardly sufficient; but as Senator Walker has information that justifies him in thinking that that’ will give sufficient time, I shall be only too glad to support him. One reason why we should encourage the manufacture of tops in Australia is that when our wool goes to the old country, even the great factories where the tops are manufactured have no use for the, whole of the product. They manufacture only what suits themselves, and sell the rest. Here, however, we could manufacture all our wool into different classes of tops, and not only supply our manufacturers without any trouble with the very article that they want, but be in a position also to export large quantities to other parts of the world where our wool is in such great demand. I have, much pleasure in supporting the amendment.
Senator MACFARLANE (Tasmania) [6.2x1. - I am sorry that I cannot support Senator Walker in the new step that he has taken. There is a great deal of ignorance in this matter of tops. I have here a letter from a manufacturer who opposes it. He has tried to make tops and yarns for his hose. He states -
The question has been raised, “Why can’t ‘we spin our own yarn ?” and one hosiery manufacturer represented to the Tariff Commission that given adequate protection on yarn, they would put down a spinning plant. But this could not be done, as we ourselves have proved, owing to the large number of qualities and sizes required to meet the varied demands of the Commonwealth. As you will readily understand, the climatic differences of . Queensland and New South Wales require quite a different texture of goods to Victoria and Tasmania. We ourselves use from 40 to’ 50 different varieties of yarn, which no one spinner could turn out. The capital invested by an English Combine to turn out these varieties of yarn is ^5,000,000.
I read quite lately that the spinners 01 Bradford - not Sheffield, as Senator Walker said - laughed at the’ idea of the Commonwealth embarking in the industry of making tops. We certainly could do it to a limited extent for our own requirements, and in that I should ‘be very glad to assist, but we can never expect to export, because pur conditions of labour, and even the very Bill that has been introduced to-day, would probably prevent the profitable manufacture of tops for export against the world. Bradford is producing enormous quantities of different kinds of tops. They are classified according to the number of fibres to the ounce, as I understand it. The degree of fineness of the wool spun out determines the different kinds of yarn. Therefore, we must not look forward to the establishment here of any very great industry of that kind. If Senator Walker can introduce- another industry- here for the manufacture of- what is useful for the Commonwealth, I shall be with him in supporting it, but I am sure that he will be disappointed if he has any idea that we can establish a large export trade in combed wool or tops.
– I trust that the Government are taking notice of the serious split that has occurred in one of the parties into which the Senate is divided. That incident will, of course, offer every inducement for the exercise o.f that adroit ingenuity of which Senator Keating is so able an exponentNo argument shows more clearly that the bounty is ‘quite unnecessary than that addressed to the Committee by Senator McGregor. He said that he had it upon reliable information that the difference between the cost to the individual manufacturer making his own tops and the cost which would be incurred if they were made in one large central factory, would range from id. to 1½d., or even I id., per lb. If so, it is a marvel that the enterprising; friend on whose behalf Senator Walker has spoken ‘as prepared to go into the business if the State will guarantee an amount’ of id. to 1½d. per lb., has not been already induced to show his enterprise by undertaking the manufacture of tops for the number of smaller woollen manufacturers who, on Senator McGregor’s .showing, can only make them at an increased cost, of from id. to 1½d., which is exactly the amount which we are asked to give asa bounty.
– The bounty is tocease after five years.
– The limitation as to time applies to every bounty, and yet Senator Walker voted “ against some of them. According to Senator McGregor, there’ isalready in Australia a market offering an; increased price of from id. to 1½d. over present cost to any man who likes to launch out on a large scale. As manufacturers have not taken, and do not seem disposed to take, up this profitable busi-ness for local consumption, I feet tolerably confident that they are not likelyto do it for export purposes. If they are not prepared to manufacture in the most profitable, way - a large way - for a market at their own doors, they are hardly likely to launch into the enterprise for the purpose of exploiting the markets of the world,’ where, as Senator Macfarlane points out, the conditions ‘ of manufacture are less costly than in Australia. For that reason there is less objection to the item going through, because, if there is one item which will prove to foe so much waste paper, it is this one. I am surprised if the Government wish to encourage the manufacture of tops, that they should have limited the bounty to exports.. Does any honorable senator think that - we are going to export tops in competition with the established manufactories of Bradford? Had the bounty been for the manufacture of tops, irrespective of whether they were to be used in Australia or outside, there might have been some virtue in it, from the standpoint of those who believe in bounties, but to limit it to tops to be exported seems to be cumbering the Bill with an item which can only have entirely negative results.
– The item before this was for export only.
– That does not make this one right. There might possibly toe a better chance of exporting some things than others, but I hardly think that tops come within that category.
– If none is exported there will be nothing to pay.
– I admit that I do not view this item with the same apprehension as I view others, because I think the whole thing will be so much waste paper.
– The honorable senator should support it.
– I decline to think that my electors sent me here to cumber up the statute-book with idle and useless legislation. The first promise of an industry of this kind is to supply the local market. If manufacturers cannot do that now, in spite of the encouragement offered to them to do it, no one can reasonably expect that they will be able to export in competition with the old-established and very large manufactories of Bradford and America.
Sitting suspended from 6.30 to 7.45 p.m.
– Senator Walker has advanced, as a reason for the proposed alteration of the date, the statement that if the period covered by the bounty commences on 1st January, 1909, rather than on the 1st July, 1908, a reasonable opportunity will be afforded those disposed to go into the industryto import the necessary machinery. I do not think there is any valid ground for objecting to the postponement of the commencement of the period, and to that extent I see my way to meet the honorable senator. With regard to the re-adjustment of the rates of bounty, the honorable senator proposes that, instead of paying1½d.per lb. for the first two years, and1d. per lb. for the remaining three years, we should pay1½d. per lb. for the first three years,1d. per lb. for the fourth year, and½d. per lb. for the fifth year, making the amount to be paid in all 6d. per lb., spread over the five years, as proposed in the schedule. As the proposed alterations in the rates of bounty would not affect the total appropriation, which would still be £10,000 for each year, the constitutional objection which so often arises as to our competence in making amendments in Bills of this kind does not confront us in this case, and I see no objection to the amendment.
Senator Colonel NEILD (New South Wales) [7.48]. - I am glad that the Minister has agreed to the proposed alteration of the date. I intended to vote for that amendment. I do not know whether I should vote for the second amendment, but I am prepared to vote for the item. There is no question about the production of the raw material in Australia, and particularly in the State that sends me here. After all has been said and done, the man who puts his moneyinto the necessary machinery for carrying on this industry will know that there is no question about his being able to obtain the raw material, or that there will be a market for tops if he manufactures the article in accordance with the requirements of those who use it. If any manufacturer obtains the wrong class of machinery, or manufactures the wrong class of tops, he will do so with his eyes open. In this respect, in connexion with this item, there is not the element of uncertainty which attaches to items to which we have already agreed. But I point out that a manufacturer may turn out tops quite suitable for certain classes of tweeds or woollens, but for which he may be unable to find amarket, and consequently the Commonwealth may be called upon to pay bounty on an article which will really have no market value. That is a somewhat unfortunate risk, but at present I do not see by what amendment of the schedule a risk of the kind could be guarded against. I think we must chance it, hoping and believing that those who undertake to produce this article will produce something for which they can find a market. I shall vote for the item.
– I ask permission to withdraw my amendment.
Amendment, by leave, withdrawn.
Item (on motion by Senator Walker) amended to read as follows, and agreed to -
Combed wool, or tops, exported ; (period and rates of bounty) three years commencing from 1st January, 1909,1½d. per lb. ; one year commencing from1st January, 1912,1d. per lb. ; one year commencing from 1st January, 1913,½d. per lb. ; (maximum payable in any one year), £10,000.
Schedule, as amended, agreed to.
– Surely this second schedule should undergo some change in view of the alterations made in the first schedule?
– Honorable senators will observe that the total of the amount provided in the first schedule, obtained by taking the maximum amount payable in any one year and multiplying by the number of years during which’ bounties are to be paid, exceeds the total set opposite the 30th June, 1922, in the second schedule. The latter amount is £412,500, and the grand total of the first schedule obtained in the way I have referred to is £533,000. It is not anticipated that in every year during which the bounties are to be paid the full amount provided for will be claimed and given. For that reason, the amount provided for in the second schedule is on a lower scale. In consequence of alterations made in the first schedule, it will be necessary to make some consequential alterations in the second schedule. I was prepared to- submit a revised form of the second schedule, but the amendments to which the Committee has just agreed have affected the possible expenditure during certain years. We have agreed to postpone the operation of the bounty in the case of the’ last item for six months. Then we have agreed to give 1½d. per lb. for three years, instead of two years, as provided in the schedule as submitted, and for one year we propose to pay only Jd. per lb., whereas the proposal in the first schedule, as submitted, was for id. per lb. It is necessary that the altered condition should be taken into consideration, and, therefore, I do not propose at this juncture to go on with the second schedule. Before the Committee resumes the discussion of the measure, I will have a schedule worked out on the principles which now govern the relations between the two schedules, and will submit to the Committee a revised second schedule. We have yet to deal with clause 2 of the Bill, but that clause is also related to the schedules.
– I should like to be quite clear as to what the Minister proposes to do. In addition to the minor alterations which will be consequent upon the amendment just adopted, the Committee has struck out of the first schedule three items, totalling £115.000. That reduces the amount being appropriated from £412,500 to £297,500. I take it that the re-adjustment will be upon the basis of £297,500.
– No, the readjustment which I shall have to propose will make the total .£323,000.
– The Committee has altered the first schedule so as,to reduce the total appropriation to £297,500. The original amount was £412,500.
– That is the amount referred to’ in the second schedule, but that amount is smaller than the total provided for in the first schedule.
– Clause 2 of the Bill provides for an amount of £412,500. The Committee has struck out items to the amount of £115,000. Therefore, it seems to me that the re-adjustment will have to be upon the basis of £297,500. If that be so, the .correct thing to do is to make the second schedule conform to that amount. I cannot see why we should be asked to pass a second schedule providing for an amount larger than that required bv the first schedule. The two ought to, conform. I think that the Minister is taking the right course in reporting progress at this stage.
– This is the first time the honorable senator has said that any course proposed by the Government was the right one.
– The Government so rarely take a right course that it is not my fault that I have not been able to congratulate them more frequently. In readjusting the second schedule, I think the Minister should reduce the amount payable in each year so that the total will represent the amount that the Committee has approved of, namely, £297,500. -
– What the Com.mittee has done has not been to approve the appropriation mentioned by Senator Millen, £297,000. If there were no second schedule, and if clause 2 did not stand as at present, the actual amount approved qf by the Committee would be £418,000. When the Bill came up to the Senate the actual amount which honorable senators were asked to authorize was £533,000. But what the Government asked in the second schedule was that a certain “maximum should be set down to be spent between the years 1908 and 1922. Realizing that, although authorized to spend the full amount men.tioned in the first schedule, it was not likely that the full amount would be claimed, the Government only asked for a proportionate amount - that is for £412,500. instead of £533,000. The Committee, having reduced items to the extent of £115,000, brought the total amount down to £418,000. What I propose to do is to reduce the second schedule proportionately-, namely, bv £89,000, making the amount therein £322,000.
– What proportion does’ the Minister mean ?
– I mean the ratio of £412,500 to £533,000. The amounts in the two schedules are not the same. We recognised that, although authorized to pay on account of rice, for instance, 20s. per ton, there would be no claim at all for one or two years, and there might be a period afterwards when the full amount would not be claimed. So that, although authorized to spend the full amount provided for in the first schedule, we did not ask for the full amount in the second schedule.
– So that the Government would have to come down to Parliament for a further supply of money if the almost impossible thing happened, and the full amount of the bounty authorized were claimed every year?
– Yes; in that event we should have to come to Parliament to ask for more money. What I propose to do now is to take off the second schedule an amount proportionate to the £115,000 by which the first schedule has been reduced. That is to say, I propose to reduce the second schedule by £89,000.
Petition of Mr. J. Vardon : Report of Committee of Disputed Returns and Qualifications
Senator Sir JOSIAH SYMON (South Australia) [8.8]. - As Chairman of the Committee of Disputed Returns and Elections, I beg to present the report of that Committee upon the petition of Joseph Vardon against the choice by the Houses of Parliament of the State of South Australia of the Honorable James Vincent O’Loghlin, as senator for that State. I ask that the report be read.
Report read by the Acting Clerk, as follows -
Your Committee, having considered the petition of Joseph Vardon against the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin as a senator for the said State, and against the right and title of the Honorable J. V. O’Loghlin to sit, vote, and act as such senator, and praying that it may be declared that the seat of one senator [or the said State is vacant, have the honour to report as follows : -
The facts and documents stated in the petition were admitted. The Acting Clerk of Parliaments produced the documents in the custody of the Senate, and the Senate Journals bearing upon the matter. No other evidence was called.
At the end of 1906 the places of three senators for South Australia became vacant by effluxion of time, and on the 12th December, 1906, an election took place to fill these vacancies, and three persons - one of them being the petitioner, Joseph Vardon - were returned as duly elected.
On the 31st May, 1907, His Honour Mr. Justice Barton, sitting as the Court of Disputed Returns, declared the said election absolutely void in respect of the return of the said Joseph Vardon. This decision (see section 201 of the Commonwealth Electoral Act 1902) is final and conclusive, without appeal, and it is not to be questioned in any way. Your Committee therefore find and report that, so far as regarded the petitioner, the said election - that is, the choice of the people, on the 12th December. 1906 - was void, and that no one was on that occasion chosen by the people to fill the place of senator to which the petitioner Joseph Vardon was supposed to have been elected. In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court, quoted to your Committee, “ Within the Acts there was no election at all.” The High Court also in their unanimous judgment upon the mandamus application said, “The only relevant fact is that the attempted choice of one of the three senators who ought under section 7 to have been directly chosen by the people was ineffectual.”
On the11th July 1907, there being a vacancy, the Houses of Parliament of South Australia, assuming it to be a vacancy within the meaning of section 15 of the Constitution, and assuming to act under that section, met together and chose the Honorable J. V. O’Loghlin to hold the place then vacant in the representation of South Australia in the Senate. If the vacancy was not a casual vacancy - that is one within the meaning of section 15, the choice of the said Houses of Parliament was not authorized or valid.
It appears from the correspondence set out by Mr. Vardon in the petition that he was nominated, though under protest from himself, to the State Parliament. It is clear, however, that Mr.Vardon tookup the same position then as now. and maintained that the State Parliament was not empowered to choose a senator under the circumstances, and that the proper course was a new popular election so that the people might exercise the choice of which they had been deprived. We do not think the fact of Mr. Vardon’s nomination can be said to waive the objections to the choice by the State Parliament, or to make that choice valid, or to prejudice the right of the people of the State to be allowed to directly choose a senator according to the Constitution.
It became then the duty of your Committee, in obedience to the reference by the Senate, to ascertain and report whether the vacancy was one within the. meaning of section 15 - in other words, whether a vacancy in the representation of a State in the Senate due to the people for any reason, and through no fault of their own, not having exercised their choice, can be filled by the State Houses of Parliament.
The following grounds and considerations have influenced your Committee in arriving at their conclusion : -
It is provided by section 7 of the Constitution that senators shall be “ directly chosen by the people of each State.”
Section 15, which is equally a part of the
Constitution, provides for casual vacancies, to which the State Houses of Parliament or the Governor, with the advice of the State Executive, if the Houses are not in session, may appoint.
Choice by the people appears to your Committee to be the basis of the Constitution of the Senate, and until the people have had an opportunity to exercise, and have effectively exercised, their choice, no other mode of choice or appointment can come into play. There can, apparently, be no casual or accidental vacancies until there is first a valid and effective election by the people.
If there has been a valid election or choice by the people then a vacancy subsequently occurring in the place of a senator so chosen may be filled as a casual vacancy, but the methods or machinery provided for supplying casual vacancies cannot and ought not to be used to supersede choice by the people, or in cases where the people for any reason have made no choice.
If, for instance, there had been no election by the people before the 1st January last for want of nomination, or owing to the Governor having omitted to issue his writ, or because the State Executive thought it politically or otherwise inexpedient to hold the election then, no one could say that the representation of the State in the Senate could in that case be filled by the Parliament, . or it might be by the Governor, with the advice of his Executive. The antecedent condition to the right of either to appoint a senator is first an effectual choice by the people, entitling the person to hold for the full term of service, and the subsequent happening of a vacancy.
Your Committee do not think section 15 comes into operation at all, except in the case of a senator who holds an unchallenged seat as the choice of the people, or it may be of a person appointed under section 15 itself to hold the place of a senator so chosen by the people.
Vardon had an opportunity of taking his seat. The fact of his having sat could not give him a term of service unless a person not chosen by the people can, by taking his seat in the Senate, become or make himself the choice of the people.
This argument strongly supports the view that the words “ place of a senator,” in section 15 and the corresponding words in section 19, can only be satisfied by a person effectively constituted “ a senator,” and rightfully holding the “ place of a senator.” If Mr. Vardon had not a “ place “ which he could resign under section 19 he had none which the State Parliament could fill under section15.
Resignation under section 19 ought not, in the opinion of your Committee, to be open to a person whose election is sought to be declared void, not only in cases where the seat is claimed by some one else, but generally on the ground that it would, if the course followed by the State Parliament of South Australia is right, take away from the people the right of choice and hand it over to others. In Mr. Vardon’s case, however, the seat was claimed by some one else
Your Committee respectfully point out that it would scarcely be just that the people should forfeit their right to choose a senator owing to an attempted choice having failed through no fault of their own, and further that if the right of the State Parliament of South Australia is maintained, there will be an obvious temptation to those in a minority of the people, but temporarily in a majority in Parliament, to compass the voiding of an election in order to secure the appointment of their own nominees by a friendly Parliament.
Your Committee therefore respectfully report, in terms of the prayer of the petition, that the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin to hold the place of a senator for the said State is void, and that the Honorable J. V. O’Loghlin has not been duly chosen or elected as a senator, or to hold the place of a senator for the said State, and has no right or title to sit, or act as a senator, and that the seat of one senator for the said State is vacant.
Your Committee make no award as to costs and recommend that the sum of Fifty pounds deposited by the petitioner be returned to him.
Committee Room,9th October, 1907.
As the question is a difficult point of constitutional law, which any decision of the Senate will not finally settle, we consider the question a proper one to refer to the High Court.
Hugh de Largie.
Senator Sir JOSIAH SYMON (South Australia) [8.27]. - I move -
That the report be printed, and its consideration made an Order of the Day for Wednesday next.
– Does the honorable senator rise to second the motion ?
– I beg to second the motion. In the report reference is made to one or two documents, notably the judgment of Mr. Justice Barton, but we have not been informed whether those documents have been attached to the report. Probably, it would assist honorable senators if they had an opportunity to read them.
– Every document which was before the Committee ought to be placed before the Senate, I think.
– At the present time we do not know what documents are appended to the report. I, and I believe other senators, would like to read the documents to which reference is made in the report. If they have not been appended to the report, perhaps the Minister may get over the difficulty by undertaking to have copies placed before the Senate. I would feel considerably handicapped if I had to consider the report without them.
– The Acting Clerk has informed me that all the documents which have been laid upon the table of the Senate have been printed, and that, in addition to those papers, there are the documents which are attached to the report.
– What are the documents, sir?
– That will appear when the report is printed.
– It ought to include the Minutes of Evidence.
– It includes the Minutes of Proceedings, and also, I believe, the judgment of Mr. Justice Barton. If any other document should be required, it can be obtained afterwards.
– Mr. President
– There can be no debate on this motion. Any documents that are not appendedto the report will be printed and added to it, so that honorable senators will have an opportunity of seeing them all when the matter comes to be debated.
– Everything that was before the Committee.
– All that I moved was that the reportbe printed with the documents accompanying it. Upon that motion there can be no discussion, but if reference is afterwards made to any other document, it can be supplied.
– I desire to ask a Question. Mr. Piper, a solicitor, appeared for Mr. Vardon, and Senator O’Loghlin spoke in his own defence. Will those speeches be printed and attached to the report? If not, will Senator Symon on a later occasion show why not?
– I am not aware whether shorthand notes were taken of either of the speeches referred to, but whatever documents were placed before the Committee will be placed before the Senate when the report is considered.
Question resolved in the affirmative.
Cite as: Australia, Senate, Debates, 9 October 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071009_senate_3_40/>.