3rd Parliament · 3rd Session
The Presidenttook the chair at 2.30 p.m. and read prayers.
– I desire to ask the Minister representing the Minister of Trade and Customs, without notice, the following questions : -
A Worthless Spirit.
A remarkable spirit styled Palestine brandy was in evidence before the police court to-day, when Benjamin Lorner, the holder of a colonial wine licence, was charged with selling brandy. Mr. Mann, the Government Analyst, said he analyzed the spirit, which was said to come from Jaffa, Palestine. It was quite unfit for human consumption, but he would not say it was made up with chemicals. The P.M. said that the spirit was quite worthless, and according to the witness, would raise a blister on the mouth of any one unaccustomed to such liquor, which was responsible for much crime in the city. Defendant was fined £10 and £1 15s. costs, and imprisoned till the rising of the court. The P.M. said that when the. licence came up for renewal he would try to prevent the granting of it.
Will he call on the Collector for a report as to whether he applied the provisions of sections 9,11, and 13 of the Spirits Act 1906 to the importation of these spirits?
– I shall be very glad to draw the attention of the Collector of Customs to the statement made by the honorable senator, and to ask him for an explanation.
– I am not quite certain as to what particular publications from the Statistical Department my honorable and learned friend is referring to. But there are supplied to the members of both Houses monthly bulletins concerning trade, finance, and other matters of that kind. I know that in another place exception has been taken to the quantity of the information, but if any member of the Senate or the other House is prepared to make a suggestion as to a form in which it could be supplied with greater advantage, I am sure that it would be received and considered most favorably.
– Are not the bulletins embodied afterwards in the YearBook?
– Yes, but in a different form and in different type.
– Perhaps I may be allowed to put the question in a different way, because it is asked simply with a view to having what I call most valuable information concentrated in a form to which we can have easy access. Will my honorable friend make inquiries and consider whether the information in detail can be supplied say, half-yearly or yearly in some bound form and suitably indexed?
– I shall be most happy to do so.
– I beg to ask the Vice-President of the Executive Council, without notice, the following questions : -
– I desire to say to my honorable friend, as I propose to say to Senator Chataway, who has given notice of a question on the subject, that this matter will be fully dealt with by the Treasurer in his Budget speech which he hopes soon to deliver. It is not usual, I may add, to anticipate the Budget, but my honorable friend can rely upon it that when it is delivered he will get the fullest information on the subject.
– May I take the Minister’s answer as an intimation that the Government decline to supply the Senate with information upon a simple fact relative to the public funds ?
– No, but my honorable friend will see that a number of questions have been asked with regard to the Trust Funds, and those very same matters will be dealt with in the Budget speech. It is a most usual thing in parliamentary practice to wait for the Budget statement for information on such matters.
– I give notice of the question for to-morrow.
asked the VicePresident of the Executive Council, upon notice -
What was the amount of surplus revenue put to trust funds for last month, and, ifany, what amounts have been placed to the respective accounts ?
– I communicated with the Department of my colleague in regard to this’ matter, when the Treasurer suggested the desirableness of permitting the question to remain in abeyance for a few days, if my honorable friend can see his way to do so.
MINISTERS laid upon the table the following papers : -
Statement showing action taken in connexion with the Anti-Trust Legislation of the Commonwealth.
Statement showing, for the present year, similar information in connexion with the Commerce Act,
Statement showing the Expenditure on account of the Defence Department and PostmasterGeneral’s Department out of Loan Moneys for the years1897-8, 1898-9, 1899-1900.
Censusand Statistics Act 1905 -
Trade, Shipping, Oversea Migration, and Finance of the Commonwealth of Australia for the months of -
February, 1908. - Bulletin No.14.
March, 1908. - Bulletin No. 15.
April, 1908. - Bulletin No. 16.
May, 1908. - Bulletin No.17.
June, 1908. - Bulletin No. 18.
Population and Vital Statistics of the
Commonwealth for the Quarter ended 31st December, 1907.- Bulletin No. 6.
Population and Vital Statistics : Summary of Commonwealth Demography for the years1901 to 1907. -Bulletin No. 7.
Population and Vital Statistics of the Commonwealth for the year 1907 - Bulletin No. 8.
Official . Year-Book of the Commonwealth : No. 1. - 1901-1907.
The Australian Commonwealth : Its Resources and Production.
The Clerk laid upon the table
Return to Order of the Senate of 17th September, 1908.- Commonwealth of Australia Table of Precedence.
Return to Order of the Senate, dated 17th September, 1908. - Trust Funds, Sum to Credit of.
asked the Vice-Pre sident of the Executive Council, upon notice -
– The answer to the honorable senator’s questions is as follows : - 1 and 2. No scheme for the unification of railway gauges has been submitted so far as I am aware, although several proposals for adjusting rolling-stock gear to meet the break of gauge have been mentioned. The matter is one for the consideration of the State Governments, the railways being their property. The Commonwealth Government will, of course, welcome a solution of the present obstacles to rapid intercommunication.
asked the Vice-President of the Executive Council, upon notice -
If he will lay on the table of the Senate a copy of the reply of the Government to the despatches of the British Government of November and December last regarding the Navigation B ill, and which the honorable gentleman replied in March, April, and May last was in preparation?
-I am having copies of the despatches referred to prepared, and, as a matter of fact, in the course of my remarks on the motion for the second reading of the Navigation Bill to-day, I shall be dealing with them to some extent. Tomorrow I hope to be able to lay copies upon the table.
asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow: -
asked the VicePresident of the Executive Council, upon notice -
The amounts spent in the respective States from loan funds (a) on postal works, and (b) on defence works during each of the respective years 1898, 1899, 1900?
– The answer to the honorable senator’s question is somewhat lengthy ; but I have taken the opportunity of laying the information on the table, so as to save the reading of it. It will be printed.
– Will it also appear in Hansard?
-No; it will be printed in the usual way.
asked the Minister of Home Affairs, upon notice -
– I may say, in answer, that the work referred to is being effected by the Post and Telegraph Department, and the information that I have obtained from my colleague the PostmasterGeneral, for the purpose of reply to the honorable senator, is as follows : -
Motion (by Senator Best) agreed to -
That a message be sent to the House of Representatives requesting the House of Representatives to resume the consideration of a Bill intituled “ A Bill for an Act relating to Parliamentary Witnesses,” which was transmitted to the House of Representatives for its concurrence during the last session of the Parliament, the proceedings on such Bill having been interrupted by the prorogation of the Parliament.
Motion (by Senator Best) agreed to -
That a message be sent to the House of Representatives requesting the House of Representatives to resume the consideration of a Bill intituled “A Bill for an Act relating to Bills of Exchange, Cheques, and Promissory Notes,” which was transmitted to the House of Representatives for its concurrence during the last session of the Parliament, the proceedings on such Bill having been interrupted by the prorogation of the Parliament.
. -I move -
That this Bill be now read a second time.
I do not remember any measure which has received the same amount of investigation, criticism, and revision as the Bill which I am now submitting to the Senate. First of all, it was prepared by Dr. Wollaston, an acknowledged expert, and a man of ability and experience of the subject with which it deals. Subsequently, the draft Bill received the competent attention of the late Right Honorable Mr.
Kingston, and thereafter it was introduced into this Chamber for the first time by exSenator Drake. The matters comprehended in the measure were of such a farreaching and important character that, in consonance with the expressed wishes of Parliament, the Government of the day referred the Bill to a Navigation Commission. That Commission was engaged many months investigating the provisions of the measure, and took a considerable volume of evidence affecting the many important principles embodied in it. Later, the Bill, together with the very comprehensive report of the Commission, was referred to the Imperial Shipping Conference. That Conference was held in London in May, 1907, and was of a thoroughly representative character. It included, not only British Ministers of the Crown, but also Commonwealth Ministers of the Crown,a representative from the ship-owners, another from the seamen, a third from the engineers, and also some acknowledged official experts of great ability and experience.
– But no representative of Australian seamen.
– As a result of the deliberations of the Imperial Conference, certain resolutions were come to, and, together with the proceedings of the Conference, they have been embodied in the blue-books placed before honorable senators for their perusal. The Government recast the Bill in the light of the investigations to which I have referred, and I had the honour, in September of last year, to introduce it and to explain its provisions in moving the second reading. Pressing business, of which honorable senators are aware, precluded our proceeding any further with the measure last session. Since that time the Bill has received further attention and consideration from the British Government and the Board of Trade. It will be my duty a little later to deal with the criticisms and exceptions taken to the Bill by them.
– And to explain the back-down of the Government.
-We have, of course, asfar as possible, endeavoured to meet the objections raised where they have not involved any serious sacrifice of the interests of our own shipping industry.
– Have we not the right to legislate for ourselves?
– Yes, but the honorable senator wishes to legislate for others.
– We have the right to legislate for ourselves as part and parcel of the British Empire, and with due regard to Imperial interests. My chief reason for thus describing the ordeal through which the measure has passed is to remind honorable senators that the criticisms and objections to the measure apply to, perhaps, not more than one-tenth of the provisions of this very lengthy Bill. I trust that the fact that neither the Navigation Commission, the Imperial Conference, nor the Board of Trade have taken any objection to, roughly, nine-tenths of the provisions of the Bill, will be helpful to honorable senators in their consideration of it. These provisions, for the most part, are those under which the shipping industry has been carried on throughout the British Empire. They have proved to be beneficial and mutually advantageous to the Motherland and to her Dominions over the sea. When introducing t he Bill of last session, I dealt somewhat comprehensively with the various and important fundamental features of it. To-day I do not propose touching, to any great extent, any of the matters I then alluded to. It will, however, be necessary to make reference to the constitutional aspect of the measure, to deal very shortly, I hope, with the criticisms and objections of the British Government and the Board of Trade, to show how we have dealt with those objections, and then to touch upon a few of the leading principles of the measure. It will be noticed that in clause 2 it is provided that -
This Act shall not apply -
to public ships belonging to the King or to any foreign ship of war, or to any class of ships exempted from this Act by Proclamation ; or - and this is a new provision -
to any ship exclusively used in inland waters of a State which are not navigable by ships engaged in trade or commerce with other countries or among the States.
I frankly admit at the outset that that new provision has been inserted having regard to certain recent decisions of a majority of the High Court. Those judgments appear to us, if I may say so, with very great respect, to involve a somewhat narrower interpretation of the Constitution than did previous judgments of that important body. As will be seen, on consulting leading American cases in regard to similar provisions of the United States
Act, there is, apparently, some doubt as to our jurisdiction over the limited class of crises referred to in paragraph b, of clause 2, and we thought it was undesirable to risk any challenge of the constitutionality of this measure by the omission of the exemption to which I have already referred. In view of the limited character of the exemption, it is desirable that no undue risk should be taken. Honorable senators are aware that we look to ihe Constitution itself for our powers and jurisdiction in regard to navigation and shipping. Seclion 51, paragraph 1., provides -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth, with respect to trade and commerce with other countries and among the States.
Then paragraph XXXIX. of that section confers upon us power to make laws with respect to -
Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. “Then section 98 sets out -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping and to railways the property of any State. “Section 99 enacts -
The Commonwealth shall not, by any law or ^regulation of trade, commerce, or revenue, give (preference to one State or any part thereof over another State or any part thereof.
I think that the only provision which refers to shipping is section 5 of the cover”ing sections of the Constitution, which provides -
This Act, and all laws made by the Parliament of the Commonwealth’ under the Constitution shall be binding on the Court, Judges, and people of every State and of every part of the “Commonwealth, notwithstanding anything in the laws of any State ; and the laws of the Commonwealth shall be in force on all British -ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
So that honorable senators will see that our “Constitution contains fairly wide and comprehensive provisions in regard to the important subject of navigation and shipping.
As we are largely following the American “Constitution, it may be desirable - because
I think that our Constitution is stronger than is the American Constitution-
– It is more -express.
– Exactly. It may therefore be advantageous to draw attention to the corresponding sections of the American Constitution. Article 1, sub-section 3, of section 8, declares that Congress shall have power to regulate commerce with foreign nations and among the several States. That provision follows the lines of section 51 of our own Constitution. But the American Constitution does not include, in express terms; - as does ours - the provision contained in section 98 which, as I have already .pointed out, expressly enacts that the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping. Then subsection 18, of section 8, of the American Constitution vests Congress with power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested” by the Constitution in the Government of the United States, or in any Departmentor officer thereof. The only other provision in the American Constitution bearing upon this matter is contained in Article r,. subsection 6 of section 9, which provides -
No preference shall be given by any regulation qf commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.
I have outlined these provisions in the American Constitution, because we can look to leading cases in the United States for much enlightenment regarding the development of this particular power. The leading cases to which I refer, show that from the very outset navigation and shipping were taken to be covered by the words “trade and commerce.”
– But we have to remember the difference between the American Federation and our own. The United States were an independent nation, whilst ours is not.
– Undoubtedly. Our legislation is subject to the assent of the King, and to the power of disallowance under certain conditions by the King in Council. But we must necessarily rely upon the interpretation placed upon the American Constitution, by very high judicial authority, for a knowledge of our rights and powers under our own Constitution. I have, therefore, made a few notes of cases which, I trust, will be of assistance to honorable senators by enabling them to appreciate our legal position. Assuming for the purpose of argument, that ‘ 1 navigation and shipping” are limited by the words “ among other countries, and among the States,” I still contend that our legislative power is not “confined to ships engaged in Inter-State trade and foreign commerce. It is clear, from my reading of these cases, that we have power to make laws in regard to navigation and shipping, so far as InterState trade and commerce are affected. That is to say, our power includes jurisdiction over ships and seamen, control of the navigable waters of the Commonwealth, and of all ships which use those waters. It also incidentally covers everything necessary to the exercise of that power. I have a short note here of the case of Gilman v. Philadelphia, which is reported in 3 Wallace, page 724, There it is laid down that “ the power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than that in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress.” As in the United States, the laws relating to navigation, shipping, and seamen, are based on the plenary powers of Congress, so in the case of the Commonwealth we claim full power to legislate on the whole subject, so far as navigation on the high seas or the navigable waters of the Commonwealth are concerned.
– Does the Vice-President of” the Executive Council maintain that we possess plenary powers like those which are vested in the United States Congress?
– Yes. We have plenary powers to deal with navigation and shipping, so far as that shipping is within or upon the navigable waters of the Commonwealth.
– But not outside those waters.
– So far as those ships are within our territorial waters, we have power to deal with them. In the case of The Oyster Police Steamers of Maryland, 31 Fed. Rep., page 763, it is laid down that -
The existing regulation of Congress with regard to steam-vessels proceeds upon the assumption that it possesses full power to regulate all vessels navigating public waters of the United States, whether they are engaged in commerce or not. . . And it is also apparent that Congress proceeds upon the theory that proper regulation requires that all vessels in those waters shall he subject to one uniform system.
Other cases established! the principle that, navigation laws may be applied to vessels, even engaged in the domestic commerce of: the State, and in the case of Lord v.. Steamship Company, 102 United States; Reports, page 541, it has been specifically/ held that-
While navigating the high seas between ports of the same State, a vessel of the United Statesis, together with the business in which she is. engaged, subject to the regulating power. oK Congress.
That is, under the commerce power.. In these circumstances we claim to have’ the power to regulate all ships which useInterState highways, whether engaged, in. Inter-State trade or not, as we consider, that, that is a matter affecting Inter- Statecommerce. In other words,, we have’ power to regulate and make’ laws asto lights, signals, rules of. the- road,, collisions, safety, competence- and efficiency of officers and seamen), safety appliances, salvage, over-loading, sea worthiness, inspection of hull-,, machinery, and boilers. In fact, speaking- generally, and subject of course to the- assent of theCrown, we have practically the power todeal with almost everything which is contained in the Merchant Shipping law ot” the United Kingdom. It has been held,, moreover, in America, that the Federal law as to even the limited liability of shipowners was applicable to ships engaged inthe domestic trade of a State. Then, as regards wages, there is the important case of Patterson v. Endora, 190- United StatesReports, page 176, where the Federal law prohibiting advances to seamen without limitations was held to be constitutional. The vessel in that case was engaged in foreign commerce, and the Court left open’ the>question as to the applicability of the section in case of a sailor serving wholly within a State; but in view of the decisions of the Courts on analogous questions,, there can be little doubt that the section would, if the case arose, be held to apply. It will therefore appear from this, statement, and it is a fact, that in framing the navigation laws of the United States, founded upon the limited terms of its Constitution, Congress has exercised practically the same power in regard to navigation and ‘ shipping as has been exercised by theMother Country.
– Has not the American Congress the power to legislate for inland waters?
– That is a matter of some doubt, and I specially, drew atten- lion to one case which dealt with the point. But we do not consider that it is clear that it has that power, and there is much doubt as to whether we have it. We are not going to risk the constitutionality of our measure by the insertion of such a provision.
– Does the Minister mean to say that we are not going to legislate for ships that run between three States in inland waters?
– My honorable friend has evidently misconceived the whole position. I never said so. What I said was that we do not take power to deal with those cases where ships cannot get from one State to another. Take, for example, Lake Burrumbeet, or Lake Windermere, or any other inland water.
– Take Spencer’s Gulf.
– That is a navigable water, and consequently it is within the limits of the Federal Constitution.
– So is Lake Burrumbeet.
– No. In March last there was laid upon the table of the Senate certain despatches relative to the Navigation Bill from the Secretary of State for the Colonies. In a despatch dated 29th November, 1907, Lord Elgin frankly says -
At the Conference, His Majesty’s Government recognised - and they desire to put the view on record in the most formal manner possible - that every Dominion has the full right and power to regulate not only vessels registered’ in that Possession, but also all vessels engaged in the coasting trade of that Possession (as denned by the 10th resolution of the Conference), so long as they are engaged in that trade.
His Lordship goes on to say -
In certain cases, however, the legislation proposed goes beyond those limits by purporting to regulate vessels which do not engage in the coasting trade,
That, I admit, and that, of course, we claim the right to do. and vessels while on the high seas before or after engaging in the coasting trade. In some other cases resolutions accepted by the representatives of the Commonwealth at the Conference have - probably by inadvertence - not been carried into effect.
That I do not admit. We have honestly endeavoured to carry out the resolutions of the Conference.
– Do I understand the Minister to say that he regards the Bill as complying with the resolutions of the Conference ?
– As regards those to which we agreed, yes. His Lordship forwarded a memorandum in which he suggested certain alterations in some provisions of the Bill, and expressed the hope that they would be given effect to by the Commonwealth Government. He concluded in this way -
I trust that your Ministers will communicate freely with His Majesty’s Government, with a view to arriving at a settlement before the Bill is finally passed by the Commonwealth Parliament ;
I ask honorable senators to mark these words- so that no delay may arise in the issue of the Order in Council required by sections 735 and 736 of the Imperial Act of 1894 to give the provisions of the Bill legal validity.
I venture to say that the official who penned that proposition must indeed have been under a serious misapprehension, and that the Minister himself must have been guilty of a strange oversight when he thought for one minute that our power of legislation was limited by sections 735 and 736 of the Merchant Shipping Act of 1894. The former section enables Colonial Legislatures to repeal any provisions of the Act with certain exceptions, but the repeal has to be confirmed and assented to by the King in Council. I do not think that in any portion of our Bill we purport to expressly repeal any provisions of the Merchant Shipping Act, but section 736, which was very useful indeed before Federation, gives power to regulate the coastal trade, subject tu certain limitations. We do not rely upon the provisions of that Act at all, but upon another Imperial Statute, namely, the Charter of our Constitution.’ So that the official and the Minister were under a serious misapprehension in regard to our constitutional powers.
– Is there not a conflict on that point?
– I do not think that the question can be seriously considered, because one Statute is just as much an Act of the Imperial Parliament as is the other, and our Constitution is the later one. Then, referring to resolution 9 of the NavigationConference -
The Board of Trade observe with much satisfaction that the Bill to a large extent complies with the resolutions passed at the recent Colonial Navigation Conference. But they desire to call attention to the following points in which it appears that full effect has not yet been given to those resolutions…..
Resolution 9. - Special conditions imposed by Australian laws are in several important matter- not confined to ships registered in Australia and ships engaged in the coasting trade, *e.g. -
The compulsory periodical survey of cargo steamers ; the unrestricted power to require steamers to be dry docked ; the strictness of the requirements as to adjustment of compasses; the power to make rules as to live-stock and grain and coal ; the regulation of wages on board ships when they are outside Australian waters; the requirements that certified cooks must be carried on ships of 500 tons gross ; the compulsory provision of a supply of clothing* on foreign-going ships.
The official of the Board of Trade- Sir Walter J. Howell - practically challenges our right to impose conditions and restrictions in regard to these and other matters on foreign-going vessels when the,y are within our territorial limits. We dispute that view altogether, and, after consultation with those who were present at the Conference, I venture to say that he has quite misconstrued the meaning of resolution No. 9. It is true that if we read the resolution itself it is technically capable of the construction which has been put upon it ; but, having regard to the debates and to the other resolutions, it is conclusive that the meaning which the official seeks to attach to the resolution is not justified. It is headed :t Vessels to which Colonial conditions are applicable,” and it reads as follows -
That the vessels to which the conditions imposed by the law of Australia or New Zealand are applicable should be (a) vessels registered in the Colony, while trading therein and (4) vessels wherever registered while trading on the coast of the Colony. That for the purpose of this resolution a vessel shall be deemed to trade if she takes on hoard cargo or passengers at any port in the Colony to be carried to and landed or delivered at any port in the Colony.
If we have regard to the other resolutions of the Conference,, where in some cases as to British or foreign vessels it is affirmed that certain conditions shall, be made to apply, and where in other cases it is specifically stated that this particular condition shall only be made to apply to vessels registered in the Commonwealth, or vessels engaged in the coasting trade thereof, it is quite clear that no such meaning can be attached to resolution No. 9, as is sought to be attached thereto. Such a thing was never suggested at the Conference, and would not for one moment have been listened to by our representatives. To give an illustration of what I mean, I shall pick out resolution No. 4^ which refers to the accommodation for the crew -
That the conditions imposed bv Australian or New Zealand laws, as regards accommodation, ventilation, and conveniences, should only apply to vessels registered in those Colonies, or engaged in their coasting trade.
That resolution was passed unanimously by the Conference. But my honorable friends will see that it specifically picks out certain conditions in regard to certain matters that can be made to applyto this limited class of vessels. And so, if honorable senators go through the resolutions one after the other, they will see that, by reason of their adoption, it was never contemplated that we were to be limited in our application of our own laws to our own coastal vessels, or to vessels registered within the Commonwealth. I would, moreover, point out that the Statesthemselves, prior to Federation, had power to deal with most of the various mattersthat, are referred to in the memorandum of the official of the Board of Trade. Those very things as to which he takes exception to the Commonwealth legislating, in regard to foreign-going vessels, the States themselves had power to legislate upon, and exercised that power. Is it to be suggested for one moment that theCommonwealth has less power than theStates had ? Is it to be suggested for onemoment that: we are invited to surrender any of our powers? Any such proposition! is too absurd for serious consideration.. Further, I would point out that the very powers that are objected to by the official’ have actually been assented to in regard to New Zealand.
– Does that apply tothe clauses referred tor”
– Without examining’ them in detail, I reply that most of theseprovisions - if not all - to which exception is taken by the official’ to whom I’ have referred, are embodied in the New Zealand Act; and is it to be suggested” that these powers are to be conceded toNew Zealand and denied to the Commonwealth ?
– The Government haveaccepted many of the proposals of theBoard of Trade.
– We ha.ve accepted” what suits us, and what we regard as fair and reasonable. We submit that a fairreading of the resolutions shows that thelimitations had no application to vesselswithin our territorial limits. A despatch was sent by the Prime Minister, in replyto the two despatches to which I have referred. In the course of that despatch,-“ the Prime Minister draws particular attention to the two despatches and the memorandum accompanying them.
– May 1 ask for the date of that despatch?
– Will the honorable senator quote the whole of the despatch, because it has never been made public?
– I propose to circulate a copy of it to-morrow. I am now dealing with the leading features of it. The reply of the Prime. Minister is dated 15th June, 1908.
– It has never been made public.
– There are reasons” why it should not have been made public. 1 do not understand the interjections of my honorable friend. The Prime Minister, in his despatch, states that he desires to call attention to two passages in the document which accompanied the despatches of the Secretary of State, which, he says, is phrased in ai manner “ absolutely without precedent in all the correspondence which has taken place between the Imperial Government and the Government of the Commonwealth.” He then refers to the concluding words of Sir Walter Howell’s memorandum. - “ No question can arise as to withholding assent when the measure is finally passed by the Commonwealth Parliament”; or, rather, the implication contained in that phrase; and the abrupt declaration contained in the note on clause 369 - “ This is a limitation of the power expressly given by the Imperial Act, and cannot be agreed to.” The Prime Minister goes on to say that as such passages occur in a memorandum forwarded by the Secretary of State, they are presumably indorsed by him, but that it was hoped that the fact was that they were transmitted without their being closely examined, and that the natural presumption as to their indorsement was not well founded; and he points out . that our Constitution is also an Imperial Act, as much as is the Merchant Shipping Law itself. He admits that according to the terms of our Constitution, our laws- have to be assented to by the King, and may, under certain circumstances, be disallowed; -and then he goes on to say that “ at the present stage Ministers do not regard it as necessary to discuss these well-accepted constitutional principles, as they trust that on reconsideration of the expressions to which exception is taken the Secretary of State will see his way to withdraw from them the official indorse ment apparently conferred by his despatch.’1 I venture to say that the indiscreet phraseology which has been used has not been intentional, but is rather the result of inadvertence. But still, it is a class of phraseology to which this Dominion has not been accustomed, and to which we are not prepared to listen, when coming from an official whose remarks have evidently been overlooked by the Secretary of State.
– Can the Minister say whether any reply to the Prime Minister’s despatch has been, received?
– We received a cablegram yesterday to the effect that they were that day posting a reply which, of course, in due time will come to hand.
– Does that terminate the correspondence?
– Yes, the reply is on its way. . It is now my duty, in accordance with the promise which I made, to explain to the Senate the objections which were taken to the Bill of last session, and also to explain how they have been dealt . with in the measure now before the Chamber. The first objection was in regard to the definition of the term “freeboard.” They stated that the definition in our Bill was rather that of “clear side,” than of “ freeboard “ ; and, on looking into the matter further, I am advised by our experts that the objection is a sound one. It has therefore been agreed to. The next objection is to our definition of “ desertion,” or rather to the first part of that, definition, which renders a man a deserter if he has been absent without leave from his ship for a period of fortyeight hours. The objection taken to this definition is that it is contrary to many decided ‘cases. We are aware that it is contrary to many decided cases. It was intended to be contrary, and to over-rule them. The singular feature of it is that the definition which we have adopted is the very definition, and in the exact words, which has for some years been in the New South Wales Seamans Act, Section 3. It has been in force for the last ten years. Then, in regard to clause 23, which deals with the employment of uncertificated persons as officers, the objection taken is that it is “more stringent than the corresponding provisions of the Imperial Act,” and it is ^ suggested that the provisions should apply oonly to ships registered in Australia, and ships engaged in the coasting trade. That suggestion we have not agreed to. We consider that it would be unfair to our ships that are registered here. In other words, it would take away a safeguard. If the suggestion were adopted, it would be competent for ships trading, say, between Australia and India, that were not registered in Australia, to carry uncertificated officers, whereas it would be necessary for ships registered in Australia to carry certificated officers. We consider that that would operate to the disadvantage of vessels registered here. In our opinion, the natural and sound view is that which requires that we should have certificated officers in our ships, because that affords some guarantee as to the competency of the persons who are placed in charge. However, there are so few vessels that are not under the control of certificated officers that there is, perhaps, not really very much in the suggestion; but we cannot see our way to concede it. The next objection is taken with regard to clause 35, which deals with the rating of greasers and firemen. The objection is that the clause contains provisions which are not in the Imperial Acts, and that for the sake of uniformity it would be desirable that this clause should be applied only to ships registered in Australia and ships engaged in the coasting trade. This we have not done. It is thought, in regard to the engagement of seamen in Australian ports, that there should not be any difference of practice between different ships. As to clause 39, which deals with agreements to be entered into with seamen, it is objected that it should be limited to ships registered in Australia and ships engaged in the coasting trade if the words “ approved by the superintendent “ are retained, as those words are opposed to the principle laid down in the Imperial Act that stipulations not contrary to law may be inserted in an agreement. This we have not conceded. Clause 39 of the Bill provides as to agreements to be entered into, and as to the form of those agreements, and in sub-clause 3, paragraph a, we say that the agreement shall be -
Framed so as to admit of stipulations (not contrary to law) approved by the superintendent being introduced therein at the joint will of the master and seamen.
We say that where seamen are engaged here it is essentially a matter for local law, and it is desirable that the superintendent shall be present to see that no injustice is done by one party as regards the other.
– . Is that limited strictly to seamen signing-on here?
– It is limited strictly to agreements entered into on the Australian coast. The difference of practice in ships in the same trade is what we are providing for, and we do not interfere with any agreements entered into abroad. Clause 53 of the Bill deals with the obligation as to the seaworthiness of vessels. The objection taken to that is that it does not contain the proviso given in the corresponding section of the Imperial Act, section 458 (2) (a). It is urged that this omission might cause misunderstanding, and it is suggested that the proviso should be inserted. It is quite true that the clause does not contain the proviso in section 58 of the Imperial Act, which reads as follows - Nothing in this section -
We contend that it would never do to insert such a proviso in our measure. It would make the provision as to the seaworthiness of ships too elastic. We consider that the provision must be strong and not unduly wide. We say, moreover, that practically the objection is met by the provision of the Bill which limits the requirement to “ all reasonable means.” We say. that the owner or master of a vessel has to take “all reasonable means “ to insure the seaworthiness of his ship ; and it is considered, under the circumstances, that no other proviso is necessary. Then in regard to clause 55, which deals with the discharges of seamen, it is “ presumed that the forms used under the Imperial Act will be included amongst those which are prescribed under the Australian Act.” There is not the slightest intention of departing from the forms used under the Imperial Act unless some extraordinary circumstances make it necessary in a few cases to do so. We are thoroughly imbued with the necessity for uniformity in regard to our merchant shipping laws so long as they fit in with our own local conditions. The next objection is in regard to section 61, which provides that no discharge is necessary on immediate re-engagement. It is objected that this as it stands is contrary to the provisions of section 31 of the Merchant Shipping Act 1906, and that this should be safeguarded.. We have agreed to this by sub-clause 3 of clause 61, which pro- vides that that section shall not apply to the case of seamen shipped in the United Kingdom. The Board of Trade’s memorandum proceeds -
Clause 64, which prohibits advance notes’ in Australia, is at variance with section .140 of the Imperial Act, and it is suggested that it should be applied only to ships registered in Australia and ships engaged in the coasting trade.
We have not done this, because the feeling in Australia, so far as it has been formulated, and certainly the strong recommendation of the Navigation Commission, are against the further continuance of the system of ‘ advance notes, recognising that they conduce to the nefarious practice of crimping which has .been carried on, unfortunately to too great an extent, in our ports. Moreover, we are strengthened in this view by the fact that in the United States advance notes have been abolished.
Clause 65. - It is suggested that the amount which may be allotted should be limited in the same manner as under the Imperial Acts.
This refers to allotment notes. It is quite true that in several of the .provisions of our Bill a seaman is liable to certain deductions. We have accepted the suggestion of the Imperial authorities, and have limited the allotment to one-half. The remaining one-half, we submit, allows ample room for the deductions, if any have to be made.
Clause 71 (4) provides that the Minister may disallow deductions from seamen’s wages. Under the Imperial Acts (with the exception of the power given to Superintendents to decide minor cases under section 137 of the Merchants Shipping Act 1894, a power which is reproduced in clause 77 of the Bill), no such authority is given to any executive officer, and all questions as to wages which are not decided by the Superintendent are left to the Court. It is suggested that it would be desirable that a similar course should be followed in Australia.
We do not agree to that proposition. We consider that the Minister here practically takes the place of the Board of Trade.
– The Board1 of Trade does not determine the mattei. It is the Court.
– The honorable senator means that the Minister takes the place of the Court.
– Yes, the Minister takes the place of the Court, but some of these matters are determined by the Board of Trade. The point we desire to urge is that as regards any administrative acts it is undesirable that there should be expensive litigation when the matters involved might be summarily and rapidly decided by the Minister.
– To the disadvantage of the men.
– The same thing applies in the case of many other civil actions.
– My honorable friends will have an opportunity pf discussing the matter. If it is thought desirable that these matters should be referred to the Courts there can be no objection, but the view we take is that there are so many of these small matters arising that it would be far better to have them rapidly dealt with by the Minister.
– Where the amount is under ,£5 the matter is dealt with by the Superintendent.
– Yes; but take a matter involving £10-
– To each of ten men ; that would be £100.
– Fancy going to the Court with a matter involving no more than £io, and having to put up with all the incidental delays. It is, I think, more desirable that the Minister, who may be presumed to be anxious to do what is right and just between the parties, should deal with such matters.
– He may be the agent for the ship.
– The honorable senator is not justified in saying that. If the Minister were the agent for the ship, I have no doubt he would refuse to act.
– But the Bill says that he shall act.
– No; in such a case the matter could be dealt with by another Minister.
Clause 79 contains a provision that the lien for seamen’s wages shall have priority over all other liens. The Commonwealth Government may not be aware that the question of liens is at present under the consideration of the International Maritime Law Conference. In these circumstances they may possibly consider it inopportune to make an alteration of this kind in the law at a time when an attempt is being made to bring about international uniformity.
We do not take the same view. We consider that it is desirable to maintain the priority in favour of seamen’s wages.
Clause 80. - The last nine words of the clause, which do not appear in the corresponding section of the Imperial Act, make the bar to wages incase of neglect of duty at a wreck of no effect ; it is suggested that they’ should be omitted if theclause is to apply to ships not registered in Australia and not engaged in the coasting trade.
We have agreed to this suggestion, as we consider it extremely, necessary that seamen should do their best at the time of a wreck at casualty, and possibly the addition of the words objected to might have the effect contemplated.
– Will the Government make provision for the seamen getting wages for the work?
– Quoting again from the memorandum -
Clause 84, which deals with compensation for premature discharge, la not 111 accordance with the corresponding provisions of the Imperial Acts.
Sub-clause 1 is not limited, as is section 162 of the Imperial Act, to cases of discharge occurring before the commencement of the voyage. It would also limit the amount of compensation obtainable for a wrongful discharge at any period of the voyage to one month’s wages. Sub-clause 2 would impose on ship-owners an obligation to repatriate discharged seamen which may in some cases be in excess of the obligation imposed by the Imperial Acts; and to that extent is at variance with resolution 9 of the Conference. It will be remembered that section 32 of the Merchants Shipping Act 1906 applies only to cases of discharge at ports out of His Majesty’s Dominions.
We have adhered to the clause in its previous form, because it makes for a definite compensation of one month’s pay being granted to the seaman, which in our opinion is better than having the matter left open, so far as his claim is concerned. The real objection, I think, is to a provision in our Bill, whereby the seaman is entitled to a passage to the port of discharge.
Clause 96 contains provisions as to desertion, and it is not clear that this clause when read together with clauses 64 and 101 gives full effect to resolution 18 of the Navigation Conference.
It will be remembered that under the Imperial Act (section 140) advance notes are allowed ; and it is important that full effect should be given to that part of resolution 18 which provides that deserters shall be placed on board British ships at the request of the captain.
We have in clause 101 submitted a modification, conceding the force of the objection taken. I may say that whenever a seaman or apprentice is charged Before any Court with absenting himself without leave, we provide that -
The Court, upon proof of the offence -
shall, instead of enforcing the whole or any part of the penalties prescribed if the master or owner or agent so requires, cause him to be conveyed on board for the purpose nf proceeding on the voyage : Provided that the Court may decline to exercise this power in any particular case if for any special reason it thinks advisable so to do.
So that we concede the objection subject to the modification that in special circumstances it will be competent for the Court not to exercise the power.
– In any circumstances.
– No, the words used are - in any particular case if for any special reason it thinks it - advisable so to do.
The memorandum further says -
Clause 99 prohibits any assault by a master or officer. It is suggested that the words “ without lawful justification’1 should be inserted after the words “shall,” as there may be cases where such assault is both lawful and justifiable.
If I remember rightly we follow the form of the New Zealand Statute largely in this case. As a matter of fact, the clause is hardly necessary, because there cannot be an assault unless it is a wilful assault.
– This is an outrageous clause as it stands.
– It will permit of flogging.
– Honorable senators must remember that this refers to an assault by a master or an officer, and there must be lawful justification.
– Can an assault be lawful?
– If is proposed that we should make it lawful.
– Ari assault is not technically an assault, unless it is intended to be an assault.
Clauses 116 and 119, which deal with provisions and cooks, differ from the corresponding sections of the Imperial Acts, and should apply only to ships registered in Australia and ships engaged in the coasting trade.
That we have agreed to.
Clause 118 deals with the inspection of” provisions. The ship-owners urge that difficulty and uncertainty will be caused in practice if steps are not taken to secure that the standard enforced in Australia shall correspond as nearly ns circumstances will permit with the standards laid down by the Board of Trade.
We admit at once that such uniformity is desirable in this as in many other cases. I am sure there will be no desire to depart from the standards of the Board of Trade merely for the sake of variety.
Clause 130 provides that a deposit of £50 must be made when a seaman is left in Australia by reasons of illness or accident to defray the expenses of medical attendance, maintenance, and passage home. In the case of seamen left behind sick at foreign ports, the expenses actually incurred by the Consul are recovered by the Board of Trade from the owners. The shipowners have suggested that a similar course might be followed with regard to men left behind in Australia, in which case the deposit would be unnecessary.
We have not agreed to this. First of all, we are a long distance away, and it is desirable that some simple process should be resorted to. The object of requiring a deposit is, of course, to prevent delay and subsequent collection -of expenses. Any sum that is nol expended would, of course, be returned, but it is far more simple that there should be money in hand from which to pay expenses.
– What is the objection to it?
– We provide by the Bill that there shall be a deposit of £50, and the objection is that that is a departure from English legislation, and is unreasonable. It is said that we should have the right to recover expenses, but we say that it is more simple that we should have money in hand from which the expenses can be paid, and any balance may be returned.
– That has the advantage of simplicity.
– It certainly has the advantage of simplicity, and that is what we aim at.
Clause . 131 requires foreign-going ships to carry a person qualified to render first aid. There is no corresponding requirement 111 the Imperial Act, and the regulation which requires candidates for Masters’ and Mates’ certificates to have a knowledge of first aid does not come in force till April, 1908. It may, therefore, be some time before there -is an adequate supply of qualified men available, and in the meanlime, a requirement of this kind may cause hardship to some of the older men.
We reply to that that we cannot see our way to do what it proposes. As a matter’ of fact, it may be some little time before our Bill comes into operation. Proper notice must be given after it is passed, and it can only be brought into operation by proclamation. But, in addition to that, there are such great facilities offered in Australia for obtaining instruction in first aid that no difficulty will bc experienced in meeting these requirements.
Clause 132, which provided that every foreign going ship shall carry a supply of clothing for thu crew, contains a requirement not found in the Imperial Acts, and it is suggested that it should be limited to ships registered in Australia, and ships engaged in the coasting trade.
That is what we have done.
Clause 134 deals with accommodation for seamen. It is not clear that any real advantage is gained by requiring the superficial space to lie 16 square feet instead of 15, or by prohibit ing the placing of accommodation below the winter load-line, provided that it is properly lighted. rr/
– How can the accommodation be lighted below the water line?
– I am’ informed that it can. We have agreed to the amendment suggested.
– Without knowing how the thing can be done.
– If the accommodation below the water line cannot be lighted, the provision will not apply.
Clause 147, Division 17 of Part II., which deals with the property of deceased seamen, should not apply to ships registered in the United Kingdom, as these cases are provided for by section 29 of the Merchant Shipping Act of 1906.
We have provided for this contingency in clause 146A of the Bill now before honorable senators.
Clause 168, Division 21 of Part II., which deals with the log, differs from the corresponding provisions of the Imperial Acts, and should apply only to ships registered in Australia or engaged in the coasting trade.
This point we have. conceded by new clause
Clause 185 - Applies Part IV. of the Bill, which deals with questions of safety to all ships, British or foreign. The provisions of this part are in several important points in excess of the corresponding requirements of the Imperial Acts, and in one respect, viz., the compulsory periodical survey of all cargo steamers by Government surveyors, are contrary to the principles on which the provisions of the Imperial Acts relating to safety are based.
It is suggested that the following words be added at the end of the clause: - “but in so far as the provisions of this part differ from, or are in excess of, the provisions of the Imperial Acts, they shall apply only to ships registered in Australia, and to ships engaged in the coasting trade.”
This we have not done. As a matter of fact, we entertain a very strong objection to an amendment of the nature suggested. It is a matter of surprise that it ‘should have been suggested, because in substance it is merely a copy of section 171 of the New Zealand Act, which provides -
Every steam-ship shall be surveyed once at least in each year in the manner provided in this part of this Act.
As regards the extension of the liability to foreign ships, I would further remind the Board of Trade that such extension is only in accordance with the trend of Imperial legislation, which expressly provides that foreign ships in British ports shall be subject to the same conditions as British ships. That provision is contained in the Act of 1906.
– But the British Act only provides for a survey in the case of ships carrying more than twelve passengers, whereas our State laws provided that all ships - irrespective of whether or not they carry passengers - should be surveyed.
– This Bill provides for the survey of both passenger and cm go ships.
– But under the Stale laws, every ship had to be surveyed.
– We definitely impose that condition here.
– Would the prevision in the Bill require a mail steamer to be surveyed here, although she had been surveyed in Great Britain within the prescribed period?
– Not unless special circumstances came to light which warranted the adoption of that course. Speaking generally, certificates of the Board of Trade are accepted, but under special circumstances it would be competent for the Minister to order a survey to take place -
Clause 201 - Deals with” certificates of survey not granted in Australia. It is suggested that words should be inserted insuring the acceptance in Australia of certificates granted under the Imperial Merchant Shipping Acts, as equivalent to local certificates.
This suggestion we have agreed to in a modified form. In the first place, we provide that a steam-ship, in respect of which a certificate of survey has been granted by the Board of Trade of the United Kingdom, shall, whilst that survey remains in force, but subject to the succeeding provisions of this section, be exempted from survey under this Act. Subsequently, we declare that any person authorized in writing by the Minister may, at any time, inspect any British or foreign ship which is exempt from survey under this Act. The Minister may, upon such report, cancel the exemption, and upon such cancellation, the vessel shall be liable to survey. It will thus be seen that the certificate of the Board of Trade is taken to be prima facie correct, but, if special circumstances arise, and the discretion of the Minister prompts the idea that a special survey of any vessel is desirable, it is competent for him to order that survey to be made -
Clause 209 provides that when a ship has been improperly detained, the Minister may pay costs and compensation to the owner. The Imperial Act, section 460, lays down that in similar cases in the United Kingdom, the Board of Trade shall be liable to pay costs and compensation.
That amendment has been made -
Clause 214, which deals with life-saving appliances, does not provide for the acceptancein Australia of Board of Trade certificates tothe effect that the statutory rules have been, complied with. It is suggested that a provision to this effect’ should be inserted.
That has been done in sub-clause 2 of clause 213.
Clause 2r8 - A special rule is laid down for ships loading coal, and it is desirable that it should he made clear that this does not apply to ships marked under Imperial Acts.
We have not done that. It is recognised, that the coast of Australia is a rough one, and we therefore think it desirable that the stormy weather load-line should be observed. Coal is a specially dangerouscargo.
– It is not the worst.
– If my honorable friend can show that any other cargo is moredangerous, I shall be very glad to hear him upon the subject. But the fact remains, that most of the accidents which have occurred along our coasts have occurred to colliers. This is a matter affecting the safety of shipping, and consequently we think the utmost strictness should be observed.
– From my reading of the Bill, the Government have made the alteration suggested, in that they have adopted the Board of Trade load-line for coaling.
– But the Board ot Trade say that that load-line should apply only to coastal vessels or vessels registered in Australia. They ask for details of restrictions in regard to clauses 231 and 233. Their objections in this connexion have been met in a modified way. In regard to their objection to clause 233, that is a matter for regulation.
Clause 279 defines the ships which are to be deemed to be engaged in the coasting trade, and exempts for the present ships ordinarily carrying mails between a port in Western Australia and any other port of Australia. The ship-owners urge that this exemption should be extended by deleting the words “ ordinarily carrying mails to and from the Commonwealth.”
That provision has been altogether recast, and it will be my duty to deal with it more fully a little later. But I may say that we have not conceded the objection urged.
Clause 285 is intended to regulate the wages paid on a ship which has been in the coasting trade after it has left those limits. Clause 288 provides the means for enforcing this provision. It is suggested that these clauses should be deleted.
This clause, as originally drawn, was not intended to regulate the wages paid on a ship after she has left Australia, but it was intended to prevent the provisions of clause 283 being evaded by a subterfuge. The clause has been recast. It now provides that if, by reason of having paid an increased wage in Australia, a reduction is made outside of Australia, the increase is to be deemed not to have been paid, and it will then be competent for seamen under such circumstances to recover the money due to them on the return of the ship to our territorial waters.
Clause 289 gives power to exempt foreign ships engaged in the coasting trade from the requirements as to licences. If licences are freely granted to foreign ships on condition that they comply with the same requirements as are applicable to British ships, the Board nf Trade are of opinion that it is unnecessary lo provide for any exemption, and the possibility of such exemption being granted has aroused considerable apprehension among British ship-owners. It is therefore suggested that the clause be omitted.
This has been done by section 289 (b). Under no circumstances could the Commonwealth confer an advantage upon foreign ships over British ships. Clause 290, and the following clauses of Part VII., deal with wreck and salvage, and also with the observation of treaties. On looking into the provisions, we found that the words were somewhat too restrictive, and therefore .we provided for the proper observation of treaties by clause 414.
Clause 369 prohibits the recognition of an officer’s certificate which has been cancelled in Australia, and returned by the Board of Trade under section 474 of the Imperial Act. This is a limitation of a power expressly given by the Imperial Act and cannot be agreed to.
Our reply to that is that we have not done it, and that we, with very great respect, insist upon the provision as it stands. If, for example, the High Court, consisting of five judges, has after full deliberation seen fit to cancel an officer’s certificate, we do not agree to the proposition that it should be competent for the Board of Trade - practically its President - to restore that certificate and permit the officer to come and trade upon our coast. What we say is that, whilst a ship is on our coast our laws will have to be observed, and if a certificate has been cancelled by our High Court we are not going to recognise any certificate which may have been granted by the Board of Trade.
– But if the accident took place outside our jurisdiction?
– That is another thing altogether.
– - And the certificate is cancelled within our jurisdiction?
– Take for example the captain oi the Mongolia or any other ocean liner trading on our coast. Suppose that for some reason or other his certificate was cancelled by a Court of Marine Inquiry, that an appeal took place, and that ultimately our High Court determined that his certificate should be cancelled. Suppose further that he appealed to the Board of Trade, and that it practically said that the man should have his certificate restored. When fie came back ito our shores we should not recognise that certificate granted in violence of the decision of our High Court, because to do so would be derogatory to its status. Then, as regards clause 385, the memorandum says -
Clause 385 (b) deals with the commission outside Australia of acts which, if committed in Australia, would be offences against Australian law.
The language of the paragraph is very wide indeed, and as it stands it would render a person liable to punishment for being cognisant of an action which was committed in the United Kingdom, and was perfectly legal under the law of the United Kingdom. It is suggested that this paragraph should be deleted or recast.
We have agreed to the suggestion.
Clause 414 only appears to cover treaties adhered to by Australia since the Constitution of the Commonwealth. The Australian Government might be reminded that there are previous treaties which are binding on Australia or on individual States.
We recognise that, and we have made an amendment of the clause.
Clause 417 deals with regulations to be made for carrying the Act into effect. It is suggested that, in accordance with Resolution 22 of the Colonial Navigation Conference, words should be inserted providing that three months’ notice shall be given of new or altered regulations; and also that in so far as any regulations differ from, or are in excess of, requirements made under the Imperial Merchant Shipping Acts, they should apply only to ships registered in Australia and to ships engaged in the coasting trade.
That we have not done, and the writer of the paragraph has evidently overlooked our Statutory Rules Act. We claim that resolution No. 22 of the Conference does not bear the meaning given. It is a mere suggestion that, in exercising his discretion, the Minister should do certain things and does not refer to legislation at all. More than that, it might turn out, particular!/ in the case of beneficial regulations, that if was not desirable to give three months’ notice.
– So that if any specially favorable condition is given by treaty to a foreign Power, the Commonwealth will be obliged to give a foreign ship the benefit of that condition, although it might be injurious to our own shipping?
– Practically, what we say is that whatever “treaties we are bound by we shall observe.
– Even though it may place a foreign ship in a better position than an Australian ship?
– I cannot take, as my honorable friend will see, a hypothetical case, but we simply say that we shall observe whatever treaties we are bound by.
– Under many treaties we are exempt.
– Yes. In pursuance of my promise to honorable senators, I have dealt in detail with, I think, every objection or exception taken by the Board of Trade. I have also indicated the reasons which have prompted the Government either to accede to or to reject the Board’s suggestions, and, of course, I have drawn the attention of my honorable friends to various clauses, so that when they are reached the exact form which they shall take will be a matter for discussion. We were anxious to meet the objections of the Board of Trade whenever we could do so fairly and reasonably, and where,in our opinion, they had made out a case for alteration. But it is for us, in our discretion, to settle the form which theprovisions shall ultimately take. The only other important matter I desire to deal with is the question of the coastal trade. I admit at once that the provisions in that regard are viewed by some persons as perhaps the most important features of the Bill, and certainly they are open to the greatest amount of controversy. Our coastal trade is a valuable and ever increasing one. Speaking subject to correction, I think there are about 200,000 tons of shipping engaged in the Inter-State trade alone. The regulation of the coastal trade is dealt with in Part VI., from clauses 277 to 289. On this subject, the Navigation Commission made three recommendations -
The minority of the Royal Commission took exception to the recommendation of the majority -
The coastal trade is also specially dealt with by resolutions 9 and 10 of the Navigation Conference. The former resolution I have already quoted, but the latter reads as follows -
A vessel engaged in the oversea trade shall not be deemed to engage in the coasting trade merely because it carries between two Australian or New Zealand ports -
Consistently with our policy of protection, we seek by the provisions of this Bill to protect our shipping industry, and our workmen, against the over-worked and under-paid foreign workmen. We seek, moreover, to encourage by all means possible, the transfer of capital to the Commonwealth for the purpose of establishing industries.
– Would it make any difference if they were paid more than the Australian rate of wages?
– If they are paid the same as that which we seek to secure for our workers, we shall have no objection to their competition.
– There is not much fear of that.
– No. In seeking to protect our coastal trade, we are following the example of all the nations of the world, with perhaps the modern exception of Great Britain. There are very few nations which permit foreigners to interfere with their coastal trade, and practically in those cases some special arrangement as to treaty relations exist. Let me give some examples. In the case of the United States the coastal trade is confined to ships which carry the American flag, and which have been built in that country. It is a very extensive coastal trade, because it comprises the whole of the east coast, right round CapeHorn, the whole of the west coast, thence to Honolulu, and thence to the Philippines.
– Does the Minister include British ships iti his designation of foreigners?
– For the purpose of our coastal trade, a British ship would be a foreign ship.
– Except under a and b.
– I shall deal with that matter, which is special, as my honorable friend knows. In the case of France, we find that the trade between all ports “on the coast and with Algeria must be carried in native bottoms. If we turn to Russia we find that only ships carrying the Russian flag can trade between their ports in the Baltic and Black Sea, and right away_ to Vladivostock, on the east coast of Siberia.
– Is not the honorable senator in a bad position when he has to look to Russia for guidance and enlightenment?
– I am referring to Russia, among other countries,, to show the care which is exercised by all nations of the world, save Great Britain, to have. preserved to their own people and ships their coastal trade. In the case of Great Britain, it is true that all protection was swept away in 1854, but the position on her coast is an extraordinary one. Whilst British shipping is excluded from the coastal trade of other nations, heavily-subsidized foreign ships are competing on the British coast with British ships.
– I have never heard of them.
– It is happening to-day.
– Is there any such trade between London and Hull ?
– Notwithstanding that fact, from 85 to 9P per cent, of the trade is done with British ships, but the intolerable position I have referred to has been the subject of much protest by the most ardent free-traders.
– It has nothing to do with free-trade.
– It is essentially a matter of free-trade.
– Can the honorable senator mention any English ports between which German and French ships trade ?
– I am only telling my’ honorable friend from reports I have read, and which are available to him if he desires to see them, that at least 10 per cent, of the coasting trade is done with foreign ships.
– Betweenwhich ports?
– I am not talking of any particular ports, but of the coast of Great Britain.
– No; the honorablesenator is taking the extended definition of ‘ coastwise trade, ‘ ‘ that is from England to Australia and other places. The local “coastwise trade” is a mere trifle.
– There ispractically no coastal trade done by foreign ships.
– In dealing with this matter, Sir Robert Giffen refers to theintolerable state of affairs which I have mentioned. He admits what I havesaid, and, in fact, that was the evidence given before the Royal Commission which was appointed in 1902.. The evidence is that 10 per cent, at least of that trade is done by foreign ships, and that a considerable proportion’ of that percentage by heavilysubsidized foreign ships. He says that that position is intolerable, and urges that it should cease ; and that foreign ships should’ pay for the privilege of trading on thecoasts of the Mother Country. He suggests a means of protection following largely on the lines referred to in this Bill.
– Will the Minister give us the exact reference?
– Yes; I can supply it; but I quoted that passage in my speech in moving the second reading of the Bill in September of last year. I admit, of course, that in our case there are Imperial considerations. We form part and parcel of the British Empire. But, at the same time, the policy of the Mother Country has been, for a great number of years past, topermit us to develop our own industries in such a way as we ourselves think proper. That is the course conceded to us in theTariffs which we have adopted, previousto Federation by the States, and sinceFederation by the Commonwealth Parliament. In addition to that, there is. I think, a further answer to resolutions ‘9- and 10 of the Imperial Conference, as likewise to the correspondence which I have already read. Where so much is conceded to us, it is clear that we have thecomplete right to build up our coastal trade in such a way as we think proper. We hold that our industries are not able tocompete with foreign standards of wages ; that in pursuing our White Australia policy, we cannot compete with black crews, and that we cannot compete with subsidized vessels. In addition to that, as was pointed out at the Conference, the cost of the up-keep of vessels in our coasting trade is very much greater than that of deep-sea vessels. We endeavour by the provisions of this Bill to provide additional accommodation, sanitary provisions and other comforts upon vessels trading on our coasts, which will have the effect of making our seafaring life more attractive. We hope by such encouragement to build up a sturdy mercantile marine that will lay the foundation of a naval reserve which must be an important auxiliary of our naval defence. I have referred to the provisions of the Bill relating to the coasting trade. Clause 277 provides that the part of the Bill which it introduces shall, unless the contrary intention appears, apply to all ships whether British or foreign. The conditions under which a ship is deemed to be engaged in the coasting trade are set forth in clause 279, which follows out the terms of the resolutions of the Imperial Conference. Originally this clause 279, in obedience to a suggestion of the Navigation Commission, contained the following provision -
Provided further that until the railways of the State of Western Australia are connected with the railways of the State of South Australia the carrying of passengers between a port in Western Australia and any other port in Australia by any British ship ordinarily carrying mails to or from the Commonwealth shall not be deemed engaged in the coasting trade.
Of course, the object of that provision was that until Western Australia was linked up with the eastern States by railway we should facilitate the carrying of passengers between the eastern States and the West.
– To give to Western Australians the comforts denied to other people.
– The people in the other States have the comforts of railway communication, whereas Western Australian passengers to the eastern States have not.
– Nor have passengers from Tasmania to the mainland.
– Clause 280 of the former Bill provided that if the GovernorGeneral was satisfied that any British ship not registered in Australia trades or intended to trade between places in the west, north-west, or north coast of Western
Australia, between Fremantle and Cape York, and that it was desirable in the interests of those places or any of them tor the ship so to trade, he might, by order, exempt the ship from all or any of the provisions of the measure, either unconditionally or subject to such conditions as he thought fit to impose for any period not exceeding three years.
– That was not in the Royal Commission’s report.
– It was not. The Government have in the Bill now submitted struck out the third paragraph of clause 279 in the old Bill, which I have read, and have also omitted clause 280, to which I have referred, and they have substituted for those two clauses the following provisions -
Provided further that the Governor-General may by order declare that the carrying of passengers between ports in Australia by -
British ships carrying mails to or from the Commonwealth under contract with the Government of the Commonwealth ; or
any other class of British ships defined in the order which carry mails to or from the Commonwealth shall not be deemed engaged in the coasting trade.
I admit frankly that certain constitutional objections could perhaps validly be taken to the clause in its original form, because of the discrimination between States and parts of States. But the new clause is hardly open to the same objection. There is no room for discrimination in it, because it says that the Governor-General may by order declare as to the carrying of passengers “between ports in Australia” ; which, of course, throws open all the ports of Australia, and attempts no discrimination as between one and another. Of course, I admit that that practice under this clause might be subject to abuse, but at all times it will be under the jurisdiction of Parliament itself. It is competent so far as paragraph a is concerned, to give this concession of exemption to the Orient Steam Navigation Company, whichis under contract to carry mails to the Commonwealth at the present time
– And that is not the only company that would be benefited?
– It may be the only company that would come under the provision at present, but it is competent for the Governor-General, under paragraph b. to apply the same provision to the Peninsular and Oriental Steam Navigation Company, and to other companies carrying mails. But, of course, the Government that makes such an order will be responsible for its action, and subject to the supervision of Parliament.
– “Carrying mails;” does that mean a vessel under contract to carry mails?
– There is no doubt that those words, as they originally appeared, were open to objection. They were very wide - possibly too wide. But under this clause the class of ships is defined. They are ships which carry mails to andfrom the Commonwealth. So that by that means the order will have specifically to name the class of ships.
– Not the particular ships ?
– No, the class of ships.
– It will be practically confined to White Star liners.
– It may be so. It will be for the Government of the day to say what order they will make.
– Is it not to be practically confined to vessels with white crews?
– Undoubtedly, so far as one is justified in prophesying, it will practically be confined to vessels carrying white crews.
– That will shut out the Peninsular and Oriental Steam Navigation Company.
– It may, or may not.
– It certainly would.
– I do not know how far the Peninsular and Oriental Steam Navigation Company are prepared to comply ; but so far as that is concerned, it is quite impossible at this stage to make a statement. Perhaps, when I said that the provision would be confined to white crews, I might have made the exception to which my honorable friend opposite has referred.
– One Government would grant the privilege to one set of ships, and another Government to another set.
– Why not give the power of control immediately to Parliament?
– There is some constitutional difficulty in the matter. First of all, our powers must be considered. We must have regard to whether, by these means, we can accomplish what we desire. It is desirable, we think, to give every encouragement to the carrying of passengers cheaply and rapidly between the State of
Western Australia and other parts of the Commonwealth, until the western State is linked with the eastern States by meansof a railway system. I have, in explaining the Bill, confined myself to matters of immediate importance. I have not attempted to deal with other fundamental portions of the Bill, which, I quite admit, will give rise to discussion in Committee. But this is essentially a Committee Bill, and one in regard to which I must acknowledge that we have derived very much enlightenment from the labours of the Navigation Commission, and from the Imperial Conference, the reports of which will aid us largely in our deliberations. In conclusion, I would impress upon honorable senators, as the session is to be a short one, that, as regards nine-tenths of the measure, no exception has been taken by the various Conferences and Commissions to which I have referred. In view of this fact, possibly honorable senators may see their way to pass those clauses with very little discussion.
Debate (on motion by Senator Millen) adjourned.
Senate adjourned at 4.42 p.m.
Cite as: Australia, Senate, Debates, 23 September 1908, viewed 22 October 2017, <http://historichansard.net/senate/1908/19080923_senate_3_47/>.