4th Parliament · 2nd Session
The President took the chair at 3 p.m., and read prayers.
– I have to inform the Senate that I have received the following letter: -
Bloomsbury- street, Hyde Park,
October 15th, 191 1.
Senator H. Turley,
President of the Senate.
Will you, on behalf of myself and family, convey to the members of the Senate our sincere thanks for the resolution of sympathy and appreciation passed by them.
Report (No. 2) presented by Senator
Henderson, and read by the Clerk.
. I have to state that the Honorable Josiah Thomas has resigned the position of Postmaster-General, and been appointed to the position of Minister of External Affairs, and that the Honorable Charles Edward Frazer has been appointed to the position of Postmaster-General. Until further notice the business of the Government in the Senate will be carried out in the following manner : - The Prime Minister, the Treasurer, the AttorneyGeneral, and the Minister of External Affairs will be represented by the VicePresident of the Executive Council ; the Minister of Defence, in addition to his own Department, will in future represent the Minister of Home Affairs, while the Postmaster-General and the Minister of Trade and Customs will be represented by Senator Findley.
Senator McGREGOR laid upon the table the following paper: -
Audit Acts 1901-1906. - Treasury Regulations -
Amendment of Form 5 (Clause 24). - Statutory Rules 1911, No. 148.
The Clerk laid upon the table
Return to Order of the Senate of r2th October, 191 1 -
Treasury Notes - Amounts issued to the respective Banks in the Commonwealth.
Return to Order of the Senate of 13th October, 191 1 -
Postal Rates for Savings Bank and Building Society Pass-books : Correspondence, &c.
– I desire to ask the Minister representing the PostmasterGeneral whether, if he has no objection, he will place on the table of the Library, or the Senate, copies of all correspondence which has passed between the Department of the Postmaster-General and the Commercial Bank of Tasmania, or anybody on its behalf, in respect to the prohibition of the transmission of the correspondence of the bank through the post, and also in respect to a previous intimation to the bank of an intention on the part of the PostmasterGeneral to refuse to transmit such correspondence ?
– There will be no objection to placing all the correspondence referred to on the table of the Library.
– I wish to direct attention to a statement published in yesterday’s Age, to the effect that the steamship companies trading between Port Darwin and Sydney, Melbourne, and Adelaide have notified a considerable increase in their freights and fares. I desire to ask the Vice-President of the Executive Council, without notice, whether the Government will take into consideration the desirableness of providing reasonable facilities for people to travel between Port Darwin and other parts of Australia, assuming this information to be correct?
– I ask the honorable senator to give notice of his question.
– I wish to notify that I have now been informed by Senator Walker that he has already given notice of a question relating to the same subject. Probably the answer to be given to-morrow will satisfy me.
In Committee (Consideration resumed from 12th October, vide page 1315) :
Clause 4, as amended -
A person shall not buy, or receive in exchange, or receive by way of pledge or otherwise, for valuable consideration, any decoration which has been conferred on any person being or having been a member of the King’s Naval or Military Forces or of the Defence Force for service performed in or out of Australia.
Penally : Twenty pounds.
Upon which Senator Chataway had moved -
That after the word “ Forces,” line 6, the words “ in the Commonwealth of Australia “ be inserted.
– I wish to remind honorable senators of the reasons for my amendment. As the Bill stands, it looks as if we were attempting to legislate with regard to medals and decorations granted by Imperial or other governing authorities in the British Dominions, and as if we intended to prevent the pawning, sale, or disposal for valuable consideration of such possessions. It is only reasonably modest for this Parliament to say, at any rate, that it does not intend to deal with medals and decorations granted by other authorities than that of the Commonwealth. If this amendment be carried, I shall later on propose another, to make it clear that our object is simply to prevent the hawking of Australian medals about the country. I also point out that a number of people in this country own collections of medals which they have bought. If this Bill be passed, the effect of it will be to send up the price of such collections. We have not yet been informed why the Government wish to create a corner in medals and war decorations on behalf of those who own such things. But if we are going to create a corner it will be less serious if we simply limit the operation of the measure to medals conferred upon members of the Australian Forces.
– I cannot accept Senator Chataway’s amendment, because it would destroy what is intended by the Bill. The measure would then apply only to members of the King’s Naval and Military Forces at present serving in Australia. I have previously pointed out that in Great Britain those who have earned medals are not permitted to sell or pawn them. There is also a penalty for receiving medals. As the Federal Constitution gave this Parliament control over Defence, that Imperial law does not apply to Australia. We propose to act for the British Government, and to apply practically the same law here as obtains in Great Britain.
– Can the honorable senator say whether, under that Imperial Act, an Australian might be prohibited from selling or pawning an Australianearned medal in Great Britain?
– I am inclined to believe that it would not be so, because, when the Imperial Act was passed, it was never contemplated that there would be members of Australian Naval and Military Forces who would earn medals. No doubt if the Imperial Parliament were passing a law on the subject to’ day, it would make provision to that effect. There are a number of persons in Australia who have medals to whom the Imperial Act does not apply. We, therefore, desire to pass this Bill so that it will apply to them.
– Then the Bill is really inspired by the Imperial authorities?
– It certainly is not, and the honorable senator has no right to make that statement.
– I was only asking the question.
– Then the honorable senator must have shut his ears to what I have said previously to the effect that the Veterans Association in each of the States, at their annual gatherings, and the South African Returned Soldiers Association, in correspondence which I have in an adjoining room, have asked for this measure. I should like to point out that even if the amendment be carried, the second amendment which the honorable senator has suggested would be unnecessary, because, under the Defence Act, the “Defence Force” is defined to mean the Defence Force of Australia.
– I am sorry the Minister has not agreed to accept the amendment, because, since the last sitting of the Committee, I have had an opportunity of discussing the very point involved in it with one of the most brilliant young barristers iri Australia, and he expressed himself as almost certain that we have no power to interfere with a visitor from Great Britain, landing, say, in Sydney, in dealing with medals in his possession in this way.
– I indicated a similar doubt from this side.
– I am sure that the young barrister to whom I have referred would have been much strengthened in his opinion if I had told him that Senator St. Ledger held a similar view. The Minister gave it as his reason for opposing the amendment that it would destroy the Bill, but I should have thought that was a good reason for welcoming it.. Under the amendment we should havepower only in connexion with medalssecured by officers and members of theDefence Force of Australia, and I think that is all the power we should attempt to exercise under a measure of this kind. A man possessing one of these medals or decorations for services rendered to the Empire in some other part of the world might, on landing in any of our cities, with the intent, perhaps, to remain only two or three hours, wish to dispose of it because he was badly in need of money* and why should we go to the extreme of legislating to prevent him? It has been suggested that I am not serious in my opposition to this Bill, but I objected to it when I first saw it, and, as we have considered it clause by clause, I have been strengthened in my view that it should be opposed, and that honorable senators should thake it as difficult as possible for such a measure to go from here to another place.
– I hope the honorable senator will adhere more closely to the amendment. We are not now discussing the Bill, but the amendment proposed in clause 4.
– I have no desire to argue with the Chair, but if you, sir, had given me time, I intended to show why this amendment should be accepted. Whether it is accepted or not, I hope the Minister will not attempt to prevent honorable senators moving and discussing; other amendments.
– It is not the Minister, but the Chairman who may limit discussion.
– I am very pleased that the Bill is now the property of the Committee, and that as you, sir, suggest, we have full freedom to debate and amend it. The object of the amendment is to confine the operation of the measure to medals and decorations won by naval and military men in the service of the Commonwealth, and to exclude from its operation such decorations won outside the Commonwealth. I am at a loss to understand why an Australian Minister of Defence should be so anxious to legislate in this matter for the whole of the Empire’: If the amendment be carried, we shall be attending “” to ‘ our own business, whilst if it is not adopted we shall be deliberately attempting to do something which, on the advice of so distinguished a lawyer as Senator St. Ledger, we have not the power to do.
– Surely the honorable senator does not take Senator St. Ledger seriously as an authority.
– I am prepared to take seriously any expression of opinion from the honorable senator which is in consonance with common sense. What I do not understand is how the Government can treat this measure seriously.
– The honorable senator is taking up a paradoxical position in permitting one set of men possessing medals to deal with them, and refusing the same permission to another set of men.
– I cannot hear what the honorable senator is mumbling about. He has apparently contracted the habit of talking to himself. I have heard of people doing so when they are coming home from certain places. I am tired of trying to induce the Minister of Defence to take a reasonable view of this matter, and I am tired of supporting amendments which should appeal to the common sense of every one. The amendment now before the Committee is a very reasonable one, and I have, much pleasure in supporting it.
– I support the general object of the amendment, but I wish to see it altered somewhat. It appears to me that if the military authorities of Great Britain are not inclined to press for legislation to deal with our affairs, it is rather a big order for us to propose to legislate for them. Senator Gardiner argued that if we are to legislate for the whole Empire, we shall take on a very large order. We should learn to manage our own business before we start to manage the affairs of the Empire generally. If we are to spend time on useless legislation, it should certainly be confined to matters that concern ourselves. I desire to alter the tenor of the present amendment by substituting the word “ of “ for. the word “in.” I understand that the Minister’s objection to the present amendment is that, if carried, it would apply only to persons who have gained medals by fighting in Australia. If my suggestion were adopted, the clause would apply fo members of the Australian Naval and Military Forces, and would shut out Imperial and Canadian troops. If the only objection which the Minister raises is. based on the fact that if the present amendment were carried, the measure would be rendered practically inoperative, it would be entirely removed by the adop-tion of my suggestion. I ask Senator Chataway to withdraw his amendment temporarily.
Senator CHATAWAY (Queensland) [3-32l- - I do not say that I entirely agree with what Senator Rae has suggested; but in order to give him the opportunity which he desires, I ask leave to withdraw my amendment temporarily.
– Is it the pleasure of the Committee that Senator Chataway have leave to withdraw his amendment ?
Amendment (by Senator Rae) proposed -
That the amendment be amended by leaving out the word “ in,” with a view to insert’ in lieu thereof the word “ of.”
– - I desire to know if the Minister” will accept the amendment in the form proposed by Senator Rae, because it apparently meets the objection which he raised. The clause, if amended as I propose, would appear to apply only to decorations earned in Australia; but in the form proposed by Senator Rae would apply to decorations earned by the Naval or Military Forces of the Commonwealth in any part of the world.
– I cannot believe that Senator Chataway really thinks that the amendment of Senator Rae meets my objection. If he does, I must have lamentably failed to give adequate expression to my view. The clause, if amended as desired by Senator Rae, would still exclude from the operation of the Bill members of the British Army who are at present in Australia. The desire is that there shall be applied to them here the same law as is applied to them, in Great Britain.
– The Minister seems to have overlooked the rather anomalous position inwhich his statement has placed him. He admitted, in reply to an interjection from me, that the British Parliament does not attempt to apply to Australians holding Australian medals the same provisions as we are seeking to attach to Imperial sol,diers holding Imperial medals. The anomaly arises in this way, that earlier inthe debate the Minister appealed to the Committee to support the measure,, because,- he said, it was on all-fours with the Imperial Act, but now he declines to make it agree with that Act, from which he evidently sought to obtain some inspiration, and which enabled him to secure the valuable support of Senator Walker.
– That is a clever piece of sophistry.
– No, it is cold reasoning. If there is any virtue in passing a measure because a similar law is on the Imperial statute-book it must necessarily be a vice to the extent to which we depart from the provisions of that Statute. The Minister has admitted that the Imperial authorities do not attempt to meddle with our affairs. All that the amendment aims at is to keep Australian fingers out of the pies of other people, and it appeals to me on that common-sense ground. I should have thought that the Minister would not persist in keeping this measure in a prominent place on the noticepaper. He must not make the mistake of assuming that obstinacy is strength.
– Will the other side bear that in mind?
– So far as I understand the amendment, it would, if adopted, leave us in exactly the same position as before; and that is, that we should be legislating against persons who may have received Imperial medals for services in Imperial Forces, probably outside Australia. A man in the Imperial Army might have obtained an Imperial medal for service in some other portion of the Empire, and yet, later, become a member of the Military Forces of Australia. We should then have this anomaly, that he would be debarred from disposing of the medal which he had received in Great Britain for services rendered, perhaps, in India, while a comrade in arms here, not being or having been a member of the Military Forces of Australia, would be at liberty to dispose of a similar medal. That is not what is wanted. What I think is wanted is to use these words, “ Naval and Military Forces for service performed in the Commonwealth of Australia.”
– How can you have service in Australia?
– I hope that we never shall ; but I think that, before many years are over, there is every possibility of men being able to earn medals for service in Australia.
– They would not get a medal for it.
– Not in a civil war.
– The honorable senator quite misunderstands me if he thinks that I am referring to a civil war. I am referring to the possibility of having to repel an armed invasion. I take it that the whole basis of our present Defence Force is founded on the belief that, sooner or later, we may be called upon to keep these shores inviolate. In my opinion., the amendment will not do what is desired by its advocates.
– Of course, I did not have much time at my disposal to frame an amendment, but I think that any amendment which will tend to limit the effect of this measure must be a good one. I would point out that, while my amendment may not be perfect, it would be useless to draft a perfect amendment to such an imperfect and rotten measure. I am sorry, indeed, that we have to spend so much time on this trash when there are more important measures awaiting us. My opposition to the Bill will continue to the bitter end, whenever it comes. This is retrogressive legislation of the worst character. Anything I can do will be done to delay the passage of the measure.
– And any other measure which is waiting.
– The onus rests on the Minister, if he is foolish enough to put this trash in front of other proposed legislation. I contend that the amendment, if carried, will do something, and certainly it will prevent us from making bigger asses of ourselves than we have done. In this clause, the Minister is seeking to legislate for Imperial troops. Admittedly, on his own explanation, the Imperial Parliament have never thought it worth while to legislate for Australian troops, and why should we take up time in enacting what a British soldier may do with his medal ? It seems to me that the Minister must have gone clean out of his mind to bring down such a clause. It seeks to tell a man who gained a medal fifty years ago for service at Inkerman, Crimea, or Balaclava, or in the Indian Mutiny, what he shall or shall not do with his medal. I have not the strength to kill the Bill altogether. If honorable senators awake to the folly of this proposal and” do something towards limiting its scope, so that we shall only be legislating in regard to medals which our own Government may’ grant to members of the Naval and Mili- tary Forces, we shall be bringing it somewhere within the bounds of decency, if there can be any decency attached to such a measure.
Senator ST. LEDGER (Queensland)
I.3-47J- - The Leader of the Opposition reminded the Minister of the most obvious fact, which I think it is necessary for a Minister to remember, that obstinacy is not strength, and the Minister retorted, “ Will the other side bear that in mind?” I might remind my honorable friend that that remark, which was intended as a reflection on our side, was, if possible, a severer reflection on the other side, because his own supporters are the most obstinate of the lot. The Minister is confronted at each step with difficulties arising out of the measure, whether it relates to buying or selling medals ; he sees that it is loaded with difficulties from top to bottom, and he then reminds us that obstinacy is not strength. We are now dealing with buying and selling, and with the imposition of penalties. As I previously remarked, the Minister has brought in a Bill which does not concern this Commonwealth in any way. He is asking us to assume control over the buying and selling of medals with which we really have nothing to do. Why cannot the Minister learn a lesson? Surely he must know by this time that his pet ewe lamb is a carcass.
– Is the honorable senator the crow?
– Perhaps 1 am’ either the crow or the eagle. At any rate, I do not think that the Minister will force the clause through without amendment. He knows that both sides of the Committee are opposed to the measure. Even if the clause gets through, the Bill will have to be recommitted, and there will be further difficulty. It is an excellent maxim that a Parliament should mind its own particular business, and confine itself to its own jurisdiction. We should not attempt to interfere with what is done under Imperial, Canadian, South African, or other Acts of Parliament. The Minister is departing from that salutary principle. He is attempting to interfere with decorations conferred for services rendered outside Australia. Senator Chataway’s amendment seeks to confine the Bill within the limits of our own jurisdiction. To that extent, it would improve the measure. I trust that even now the Minister will see that obstinacy is weakness, and that, even if he will not abandon clause 4, he will consent to the amendment upon it. This will probably be the last time that I shall speak upon the measure. I realize that we have wasted enough time - if I may be permitted to use that term - in the discussion of a Bill which is not worthy of the attention that has been devoted to it. Because of the awful waste of time and money that has occurred, I think that we ought now to let the Minister have his little ewe lamb, which, as 1 said before, is nothing better than a carcass.
– When discussing this clause last week, I made a statement - to which the Minister of Defence replied - that there was no such provision as this in any Imperial Act of Parliament. Senator Pearce then purported to refer us to certain Imperial Acts.
– I think that this measure is sufficiently important to justify the presence of a quorum. (Quorum formed.’]
– In reply to my statement, the Minister of Defence referred us to section 156 of the Army Act, sections 2 and 4 of the same Act, to the Regimental Debts Act 1893, section 2, to the King’s Regulations, paragraph 1759, and to the Pay Warrant Act. The Minister intimated that those authorities embodied, to all intents and purposes, the provisions of this Bill. Had he finished there, I might have been satisfied, but he continued, “ It does not matter to the honorable senator what they contain.” Of course, the sting is in the tail. To show that I was not treating the Minister unfairly, and to put the matter beyond dispute, I shall read the whole of the Army Act, and the whole of the other measures cited by the Minister. When I have done that, I shall leave the Committee and. the country to judge whether I or Senator Pearce have misled the Senate.
The TEMPORARY CHAIRMAN.The honorable senator will not be in order in reading the whole of any Act ; but he will be in order in quoting any portion which is relevant to the amendment before the Committee.
– My only desire is to put the matter beyond dispute. In order that it may not be said that I am quoting unfairly, I should prefer to read the whole of these documents.
The TEMPORARY CHAIRMAN.The honorable senator will not be in order in reading anything which is not relevant.
– Then I shall endeavour to keep strictly to the portions bearing upon what Senator Pearce said.
– This is very fair treatment !
– It is; particularly in face of the treatment to which I was subjected when the Minister said concerning me, “ But if does not matter to the honorable senator what they contain.”
– Does the honorable senator think it did matter?
– That was a serious reflection upon me to be made by any Minister. It was particularly serious as made by a Minister in my own party. I suppose that I am strong enough to bear such reflections.
– I was judging by the honorable senator’s attitude; and the remark was justified under the circumstances.
– My endeavour throughout has been merely to attempt to bring the Minister to reason.
– To the honorable senator’s reason.
– Well, I suppose that each of us endeavours to put before the Senate his own view on the questions that we have to debate. The first duty of a representative of the people is to explain clearly his own views.
– With constant reiteration.
– The Minister will find that we are not getting any nearer to a reasonable settlement of this matter by the saying of nasty things. I have no desire to follow his example in that respect. My simple wish is to acquit myself from a charge of unfairness. I trust to be able to convince the Minister before I have finished that he was not justified in the remark that he made concerning me. The Minister first referred to section 156 of the. Army Act. That section reads as follows : -
Every person who -
There is a considerable quantity of matter in this section, but what I want to make plain is that the whole of it is directed to prevent men from selling or trafficking in goods, including decorations, that do not properly belong to. them. There is not a word in this section dealing with a man who may wish to sell or pawn his own medals. The section goes on - and in the case of a second offence, to a fine not less than Five pounds, and not exceeding Twenty pounds, together with treble the value of any property of which such offender has become possessed by means of his offence, or to imprisonment, with or without hard labour, for a term not exceeding six months.
Honorable senators will see that by no stretch of imagination can that section be said to refer to the medals conferred upon a man by his King for services rendered. I must quote sub-section 2 at length. If I did not it might be inferred that I was making a reference to suit my purpose, and I wish to avoid that suspicion -
I direct special attention to that provision. Does any one mean to say that it would prevent a man from selling or pawning a medal conferred upon him? The serious part of that matter is that the Minister quoted these Imperial enactments chiefly to obtain the vote of Senator Walker, who, we know, is fond of following Imperial legislation.
– The honorable senartor is now following Senator Chataway. Both of them are in the same boat.
– No, Senator Gardiner is my leader on this question.
– Senator Chataway leads; Senator Gardiner follows humbly.
– I will acknowledge that, in regard to this amendment, I am following Senator Chataway. I hope that, in regard to any amendment that is submitted in the Senate, I shall always follow the line that, in my judgment, leads to a common-sense conclusion, no matter from what source the proposal may come.
– It is, I suppose, unfair for me to refer to the honorable senator as following Senator Chataway, but it was not unfair for him to allege that I made quotations to secure the vote of Senator Walker.
– I have read the greater portion of the section of the Army Act to which the Minister referred us. I have certainly read the portion that bears upon this question. I can quite understand that the Minister, having had this provision placed in his hands, did not see the full bearing of it at once. I acknowledge that I found some difficulty in appreciating its meaning at first. I should not have complained of that, but I do complain of the concluding words of the Minister’s statement, when he said that it did not matter to me what the sections contained. The Minister should know me well enough - he certainly will know me well enough before this Bill is through; we shall be old friends by then - to be aware that I am always prepared to consider the authority for a. statement. He should have known that if there was one thing more than another that would reconcile me to support even a measure that seemed very objectionable to me, it would be the quotation of legitimate authority for it, in the form of previous enactments dealing with the same question. Lest the honorable senator should accuse me of neglecting to quote the whole of section 156, I had better read the remaining sub-sections -
I should not like to waste the time of the Committee by quoting further from this Act.
– That would be the last thing in the honorable senator’s mind.
– Honorable senators will notice the unfair position in which 1 am placed. If I leave off quoting, even at this stage, it is indicated by the jeers of Ministerial supporters that I am not acting generously towards the Minister of Defence in connexion with this Bill. I am therefore, I suppose, compelled to read every word of the section bearing upon the matter under discussion. To clear myself of the charge that I intend to block the measure-
– The honorable senator said so himself. He said that the Minister and himself would be old friends before he allowed it to pass.
– That was merely an indication of the time it would probably take for so important a Committee to pass so important a measure. I hope that Senator McGregor, who is usually good-natured, will not attempt at this early stage to check the growth of friendship between the Minister of Defence and myself. I think I can. appeal to. the Minister’s sense of fairness to say that I have not left out anything in the section of the Imperial. Act which has any bearing on the subject, even though Senator Henderson may suggest that” I am not anxious to get on with the discussion.
– The honorable senator would not do anything of that kind.
– When occupying your present position, sir, and when we were considering this very clause, Senator Henderson ruled that I had already said the same thing on the clause forty times.
– Order !
– Can I not at this stage makea personal explanation?
The TEMPORARY CHAIRMAN.The honorable senator is not entitled, under cover of a personal explanation, to cast a reflection upon a previous occupant of the Chair.
– Senator Henderson’s last interjection puts me in an altogether unfair position.
– Order ! The Committee hasnothingto do with that matter at the present stage.
– I desire, sir,to ask you, as an urgent matter of privilege, whether I am not entitled, to put myself right with the Committee on a simple matter which occurred the other day.
The TEMPORARY CHAIRMANA matter of privilege cannot be raised now.
– You will not permit me, sir, to raise a question of privilege now? I am very sorry that you think it necessary to rule in that way. I hope you will have no objection if I propose to appeal to the President against your ruling.
The TEMPORARY CHAIRMANIt is within the honorable senator’s right to appeal to the President.
– I have asked permission to speak on a matter of privilege while we are in Committee, and it might be as well to obtain a full ruling from the President on the question of an honorable senator’s right in this regard.
– As a means of gathering more wind.
– If that is to be the interpretation put upon my action, I shall not bother about appealing to the President. The Minister of Defence stated that he had also quoted from the Regimental Debts Act 1893, the King’s Regulations, and the Pay Warrant Act. I have here the King’s Regulations for 1908. The Minister quoted, I think, paragraph 1759, which reads -
The medals of a soldier dying in the service will be disposed of by the man’s Commanding Officer, as follows : - (i.) When bequeathed by will. - The medals will he sent to the legatee, or to the executors. (ii.) When the soldier died intestate. - The medals will be sent to the next of kin, in the following order of relationship : widow ; eldest surviving son ; eldest surviving daughter ; father ; mother ; eldest surviving brother ; eldest surviving sister.
Medals issued after the death of a soldier will be sent to the officer in charge of the records, who will ascertain the name and address of the legatee, or next of kin, to whom the medals should be sent.
The whole argument hinges on the question whether we have the right to deal, not only with the private property of soldiers, but with the private property of visitors to this country. And the amendment before the Committee deals directly with that question. I maintain the attitude I took up on the previous clause, that the measure is an unnecessary interference with the private property of individuals; and the more I consider the question the more I am convinced that the quotations made by the Minister of Defence, to show that medals are not the property of the private individuals to whom they are awarded, make it clear that the authorities of the War Office consider them the private property of the persons to whom, they are awarded, and are prepared to go to greater trouble than they would be prepared to take in connexion with any other form of property, to discover whether a medal was awarded to, or was due to, a soldier before his death, and to secure that, on the death of the recipient of a medal, it should be regarded as the private property of his heirs and successors, just as it was his private property before he died. I refer honorable senators now to paragraph 1756 of the Regulations, which reads -
Medals, other than good conduct medals, for feited under the provisions of the Pay Warrant : - (i.) If the soldier is not discharged asa result of the conviction : - Will be sent, for custody, to the officer in. charge of the records of the corps, with a view to their restoration, should’ the soldier subsequently qualify for the same. That officer will retain the forfeited medals of men transferred to the Army Reserve until the. men either requalify or are discharged from the reserve. (ii.) Forfeited medals of men who have died, or have been discharged, without having had the medals returned to them, will be forwarded, annually, on 1st. May : -
If granted for service in India, to the Under-Secretary of State, India Office, London.
If granted for other than Indianservice, to the Assistant Director of Ordnance Stores, Royal: Arsenal, Woolwich - in order to be broken up.
I have not at my disposal now the quotation which the Minister made from the Pay Warrant Act. But I have here a. number of quotations which it might be too painful to the Minister for me to read. I think I have shown, however, that in the Old Country these medals are considered the private property of the individuals possessing them, and we have no right to legislate in this way concerning the private property of individuals. Senator Walker, therefore, cannot shelter himself behind the pretence that the Minister is proposing, under this measure, to do what is already provided for by an Imperial Act, because the Imperial authori- ties have not done, and have never attempted to do, what is proposed in this Bill. They have made it clear that the only restrictions imposed upon dealing with medals apply to soldiers who are still in the service of their country.
– I should like to direct attention to the state of the Committee.
– There is a quorum present.
– If there was a quorum present before Senator Henderson called attention to the state of the Committee, I hope that you, sir, will prevent the honorable senator from doing that kind of thing again.
– When I called attention to the state of the Committee there was not a quorum present.
– There is not a quorum present now. [Quorum formed.’]
– I wish to make another reference to the grant and issue of medals under the King’s Regulations, from which I have quoted.
– Is the honorable senator quoting from the recent edition ?
– I am quoting from the same edition from which the Minister of Defence quoted, that for 1908, which, I suppose, is the latest we have here, and there can have been but very few alterations in the Regulations since its publication. I refer honorable senators to paragraph 1730.
The Army Order notifying the award of a medal for active operations will include instructions as to the nominal rolls of the individuals entitled to the medal. The nominal rolls will be prepared by units in triplicate, on forms to be obtained from the War Office, and forwarded to the officer in charge of the records, who will transmit them to the Assistant Director of Ordnance Stores, Woolwich Arsenal. When the medals are ready for issue, the nominal rolls will be returned from Woolwich to the officers in charge of the records, for the latter to show on the rolls what has become of individuals no longer serving with the unit in which the medal was earned. The completed rolls will be returned to Woolwich, and the medals issued as follows : - (i.) Medals of individuals still serving with the unit, to the Officer Commanding unit. (ii.) Medals of individuals who have left the unit, to the officer in charge of the records of the corps.
As I pointed out earlier, the object of sending to the officer in charge of the records of the corps is that the recipient of the medal, or his heirs, may be discovered. I again appeal to the Minister in connexion with this clause. I am aware that Min isters have a great deal of work to do, and it is possible that even the slightest oppo-‘ sition to their wishes may sometimes irritate them.
– Is the honorable senator working on that ?
– I do not wish to work on it to the annoyance of the honorable senator.
– Does that account for the honorable senator’s continued opposition ?
– I require no justification for my opposition to this miserable Bill. I can see that the Minister is not prepared to reason with me, while I am prepared to reason with him. I was going to make an appeal to him, but before I was able to do so, he indicated that he is not prepared to listen to an appeal from me. That has been the attitude that the honorable senator has adopted towards me throughout.
– I call attention to the state of the Committee. [Quorum formed.]
– I have quoted at length from the authorities quoted by the Minister, and I have shown that there is nothing in the Imperial Act that deals in the way I honestly believe the Minister imagined it did deal with the transfer and exchange of these medals. I ask the honorable senator again if he will reconsider the attitude he has taken up in the consideration of this measure, and will agree to confine its application to medals won by officers and members of our own Defence Force, as proposed by the amendment. Visitors from India or the Old Land unacquainted with our laws should not be placed in the position, of, perhaps, finding themselves brought before a Court for doing something with medals in their possession which they would have no right to do under our laws, but which they would have a right to do under the laws of any other part of the British Empire. If there is a demand to interfere with the sale or exchange or pawning of medals, our legislation should be confined to those who will be acquainted with its provisions, and should not extend to persons who may come here from the -Old Country, perhaps only to stay a week or two. I repeat that the Minister is going out of his way to make what is not wrong an offence. I am quite at a loss to understand why he declines to accept the amendment if he wishes to get his Bill put through. I regret that he is not taking that statesmanlike view which characterizes him on other occasions. When he is dealing with the defence of Australia, we find him taking a broad, national view, but it seems to me that he cannot grasp the details of a measure of this kind. By refusing to accept the amendment he seeks to narrow down this legislation in a way of which I do not approve. I object to the liberties of the people being restricted as he proposes. The operation of this clause should be confined merely to Australian citizens in the service of the Commonwealth. It will directly affect not only decorations earned in the service of the Empire, perhaps years ago, but, as the Minister admitted at an earlier stage, also medals which, perhaps, have been the property of families for centuries. Some medals have acquired a high value because of their very scarcity. If this measure is passed they will be the subject of trade in every part of the British Empire except the Commonwealth. The time which should be occupied in considering democratic measures is spent in an attempt to curtail the freedom not only of our own citizens, but of citizens of other parts of the British Empire who may visit our shores. I have no desire to block the Bill for one moment unnecessarily, or to speak one word more than is sufficient to make it absolutely clear that this is a dangerous piece of legislation. Clearly all legislation which imposes penalties on persons for doing that which is not wrong is dangerous. This is undoubtedly the worst clause in the Bill ; but if the amendment is passed it will be improved to some extent, because the provision will then apply only to our own people. The Minister will have ample time to get the Bill put through this evening, so far as I am concerned ; but as soon as the President resumes the chair I shall have to bring up the matter of privilege. If I get the other quotations to which the Minister referred in his speech, I may quote them at a later stage, but, of course, that will not be done with a view to obstruct the passage of the measure. When I was speaking on the clause the other day, Senator Walker interjected, “ It is made an offence by an Act of the Imperial Parliament.” 1 replied, “I challenge the honorable senator to produce the’ Act of the Imperial Parliament which’ creates an offence of this kind.” and Senator Pearce remarked that he quoted the Act on the previous Friday. I have read the quota- tion referred to. I am sorry to say that not only does it not justify the Minister in saying that the1 Imperial Act condones legislation of this kind, but, unless he can properly explain his statement, as I hope he will take the trouble to do, it appears to me that he was misled into making a quotation which really had no bearing on the position I took up. I hope that Senator Walker will do me the justice now to admit that the quotations by Senator Pearce do not fairly bear the application which he wished to &ive them, and that the Imperial Act does not impose any such restriction as it is sought by this clause to make in regard to dealing with medals. If Senator Walker does not admit that there is nothing in the Imperial Act which justifies his statement, and which also justifies my reply to his statement, it is up to him here and now to produce the Imperial Act, and to make a quotation which will convince me that I am wrong. Immediately that is done, no man could be more anxious than I shall be to set myself right with the honorable senator if I have misquoted him in any way.
..-=-^ reply to the remarks of Senator Gardiner, I wish to say that I simply replied that I understood very clearly what Senator Pearce had said. I did not profess to have read the Imperial Act. I merely followed what I may call the quotation made by Senator Pearce, but T should be very glad indeed to hear further remarks from him on the subject.
Senator Lt.-Colonel CAMERON (Tasmania) [4.41]. - I think that a word from me on this matter may not be amiss, .and I speak with great deference after having heard the various objections urged against the clause. Medals and decorations are presented by the fountain of honour of the Empire to those who deserve or earn them, and any measure which will preserve the feeling that a medal or decoration is ‘an honorable award for honorable action shall have my cordial support. I approve of the principle of this measure, and I would have liked to see it passed unanimously, with only slight modifications.
– It is only a slight modification which is sought.
– I think that the amendment would rather injure the Bill than promote its object. The Government are to be congratulated on the high stand which they have taken. The clause does not deal with political awards, but with awards which come from only one source - from the fountain of all honour in the British Dominions, and that is from the King himself. I congratulate the Minister, and hope that the Bill will be passed.
– What is the prevailing practice?
– The Minister of Defence was quite correct when he stated the condition under which medals are granted at Home, for gallantry in the field and elsewhere, and that is, that there is an inherent right retained by the King to withdraw a medal if the recipient should become an unfit and improper person to hold it.
– The Minister went further than that. I understood him to say that at Home persons are not allowed to sell their medals.
.- I do not think that at Home persons are allowed to sell medals. Certainly a soldier is prohibited from selling his medal. Whether the rule obtains after he leaves the service is quite another question. The. Minister insisted that at Home the power is retained to follow the recipient of a medal after he has left the service, and I am prepared to accept his statement. If, however, that is not the law there I shall be very pleased to see such a law enacted. I think that the object of this measure is a very good one.
– In order that Senator Gardiner may not have a cause of complaint I wish to say that, in his long speech, I heard nothing to cause me to vary in the slightest way the opinion which I expressed to the Senate. In fact, the quotations which he made to-day are precisely those which I made, as honorable senators will see if they refer to page 1197 of Hansard. His comments on the quotations have not changed my opinion. On the contrary, they have strengthened my opinion that we ought to stand by the clause as it is.
– I yield to no one in my respect for any decoration or honour given by the King to a man in the Imperial Army, and if I thought that this measure would preserve the dignity of the King I would not, for a moment, resist its passage. I make this statement in order that Senator Cameron may know that any opposition we have offered has not been offered in derogation of our duty and loyalty to the King asthe giver of these honours. I think that the Minister has succeeded admirably in making the whole subject of the measure more or less ridiculous.
Question - That the word proposed to be left out of the amendment be left out - put. The Committee divided.
Majority… . .. 13
Question so resolved in the negative.
Amendment of the amendment negatived.
– After the decisive vote that has just been given, which has determined that the clause shall apply only to the Naval and Military Forces in Australia, I think that there is room for us to discuss seriously whether the whole clause should be allowed to stand or not.
The TEMPORARY CHAIRMAN.The honorable senator’s original amendment is now before the Committee.
– There was an attempt to make the clause apply to Australian Forces outside Australia ; but the Committee has decided that it shall apply only to Australian Forces serving in Australia.
– Wait until the amendment is voted upon, and the honorable senator will see whether the majority entertain that view.
– I trust that Senator Rae, and others who wish to limit the clause, will now vote to insert an amendment to provide that it shall apply only to the Naval and Military Forces in the Commonwealth.
– I move -
That the words “or out of,” line 7, be left out.
If this amendment be agreed to, I shall subsequently move to insert the words “ in or oh behalf of Australia.” The effect will be that we shall not concern ourselves with other parts of the world, but only with our own Forces. We have quite enough to do in this country, without attempting to legislate for people in other parts of the British Empire.
– I feel sure that the Committee will not accept Senator Rae’s amendment.
– Bludgeon through all your rubbish !
– The honorable senator may think that that is a suitable way to refer to the matter. I have not referred to his action in such terms. I wish to remind the Committee that we are living under a system of monarchical government. The King is the author and giver of medals and decorations. He confers them for services rendered, not to any particular part of the Empire, but to the whole Empire.
– Is not that merely a legal fiction ?
– It is not a legal fiction, but an actual fact. Not one of these medals is represented by the Government of Australia.
– Then, why interfere?
– That is another question, which I have already explained at considerable length.
– Who pays for the medals? Do not we?
– We are not dealing at present with the sale of medals, but with the wording of the clause; and I say that if Senator Rae’s amendment be adopted the clause will be made meaningless, because medals are not given by Australian authority for services performed in Australia, but are conferred by the King for services rendered to the Empire. The clause is, therefore, framed in view of the fact that medals are conferred for services performed in any part of the Empire. If the amendment were to be accepted, we should be disregarding that fact, which is the main fact relating to the question.
– If the King gives these medals, why does he not legislate with regard to them ?
– The King is only one part of the Legislature.
– I think that the amendment should receive consideration at the hands of the Committee. The explanation of the Minister makes me inclined to support it.
– Of course; we expected that.
– To play upon the fact that the King confers medals will not cause me “to alter my judgment. I suppose that he gives them as the representative of the people; because the King occupies his position by the will of the people, just as we occupy ours. The fact that this measure will apply to hundreds of thousands of holders of medals, if they choose to come to Australia, and will apply to very few Australian citizens, is, to my mind, a very good reason for the amendment. We are now legislating to deal broadly with medals which are the. property of people who are not citizens of the Commonwealth. In so doing, we have nothing to do with the way in which the medals are conferred. I take it that, as sensible men, those who deal with this matter in Great Britain have done all that it was necessary for them to do. But the Minister of Defence asks us to do a little more. I have no doubt that the fact that the King gives medals is quite sufficient to cause some people to go down on their knees ; but it ought not to be sufficient to induce us to pass this clause unamended. The speech of the Minister of Defence reminded me of a policeman calling upon a person to assist in the King’s name. 1 hope that the Minister has sufficient forces at his command to “ arrest “ the opposition to this Bill without calling for outside assistance.
– Amen !
– That is, probably, the only part of the prayer, to which the honorable senator has been listening for the last ten years, that he remembers. However, it is not my desire to prolong the debate. Honorable senators opposite laugh ; but I can assure them that, whatever I have said on this question has been said only because I realized that others had not said it. I sit in my place night after night, and whenever I hear another honorable senator say a thing which I had intended to say, I take it as said, and do not repeat it; but it will be well for the
Committee to consider the full bearing of the proposed amendment upon the clause. I suppose the amendment -will be defeated by the combination of the Minister of Defence with Senator Cameron - the most remarkable combination of Tory-Democracy that has ever appeared in this Senate.
– What about the Millen-Chataway-St. Ledger-Gardiner combination ?
– Taking the whole Senate through and through, _ we will find nothing to equal the combination to which I have referred, lt is a most powerful one, and while it continues we need have no fear for the future of Australia. The Minister might be under the impression, if I spoke at length upon this amendment, that I was trying to “ stonewall “ the Bill, and I have no desire to lose his good opinion. I wish the honorable senator to understand that my object is to make it a better Bill, if we are to pass it at all. I have very great pleasure in supporting the amendment.
– It seems to me that this is a very desirable amendment. If it is adopted, it will carry out almost entirely the object I had in view in moving the amendment which has been defeated. I tried to confine the operation of this Bill to medals and decorations earned by members of the Commonwealth Naval and Military Forces ; and this amendment would practically have that effect. The Commonwealth Government may, and it is part of their policy, offer the use of our Forces to fight abroad, as they did during the South African War, and at Pekin in connexion with the raid on the Legations. If, in such a case, members of our Forces earned medals, they would not be allowed, under the proposed amendment, to sell or otherwise dispose of them for valuable consideration when they got back to Australia.
– The honorable senator has got that far.
– No ; the Bill has got that far. I have been defeated in trying to amend it, and now I cannot help myself. My object now is that a bad Bill shall be made as little bad as possible. Under the amendment, Australian soldiers winning medals for services abroad would not, when they came back to Australia, be able to pawn them for a feed, as it was sug gested Sir John Forrest might do with one of his medals if he became so povertystricken as to require to do so. The amendment is not exactly in the form I should like ; but I am prepared to support it, because it will provide, to some extent, for what I proposed in my amendment.
– It would not be right to move an. amendment, and permit it to be disposed of without a word in its defence, especially after what the Minister of Defence has said. I was astonished that he had no better argument to offer against this amendment than what I, by interjection, stigmatized as a legal fiction. It is really nothing more. Everything is done in the name of the King under monarchical government; but, because lands owned by a State Government in Australia are described as “ Crown lands,” it does not follow that the King has any direct interest in, or control over, them. We know that it rested with Australians to say whether Australian troops should go to South Africa to take part in the War or to China in connexion with the Boxer rising. And we know that the King and the Imperial Parliament had, in effect, nothing to do with the granting of medals to those soldiers in the King’s name for the services they rendered. They were given virtually by Australian Governments. The Minister of Defence could not reply to me when I asked him who paid for them. Any medals conferred on Australian troops would have to be paid for by Australian money, no matter what “ flam “ business is talked about the King. We should confine ourselves to legislating for Australian troops. We have got into an inextricable tangle, and are making ourselves the laughing-stock of the country in proposing to legislate on Imperial lines. If we are going to do that sort of thing, we might as well depose the King and set aside the Empire. Why should we presume to say what shall be done by troops who have served in other parts of the Empire, and who may happen to stop in Australia for a few hours? We should confine ourselves, in this legislation, to what may be done with medals given to citizens of our own country. It is impossible to prevent this Bill being a sample of ridiculous, unnecessary, and wasteful legislation; but it is our duty to do what we can to tone down its crude extravagances. That is the object of my amendment.
Question - That the words “or out of “ proposed to be left out be left out - put. The Committee divided.
Majority … … 9
Question so resolved in the negative.
The TEMPORARY CHAIRMAN.Does Senator Gardiner wish now to submit his amendment?
– I withdrew my amendment temporarily, and I am now prepared to withdraw it altogether. I make this statement, out of consideration for the Government. As honorable senators are apparently disposed to jeer that statement, I shall be prepared to move the amendment.
– No; we are serious in the matter.
– I will assume that honorable senators are serious ; and I have no desire to move an amendment which might lead to a long discussion, in view of the fact that the Government have behind them a strong combination of honorable senators, prepared to prevent such an amendment receiving the attention it deserves. Out of consideration for the Government, and with the view to permit them to rush the Bill through as quickly as they can, I shall not again submit my amendment.
Amendment (by Senator Walker) proposed -
That the word “Twenty,” line 8, be left out, with a view to insert in lieu thereof the word “ Five.”
– I should like to say a word on this amendment. There is something in . it or there is not. I should like to know, from the Minister, whether the word “ Twenty “ in this clause does not mean “ Not exceeding twenty,” and whether, if the word “ Five” were substituted for it, it would mean “Not exceeding five”?
– That is so.
– Then, what is the use of making this difference?
– The penalty under clause 3 was amended in the way proposed, and we are prepared to accept this amendment because of the amendment of clause 3.
– This, then, is part of the compact with Senator Walker ?
Amendment agreed to.
Amendment (by Senator Rae) proposed -
That the word “ pounds “ be left out, with a view to insert in lieu thereof the word “ shillings.”
Question put. The Committee divided.
Majority … … 10
Question so resolved in the negative.
Clause, as amended, agreed to.
Clause 5 -
A person shall not, unless lawfully entitled thereto (proof whereof shall lie upon him), wear or make use of any decoration.
Penalty : Twenty pounds.
– I move -
That after the word “ decoration “ the following words be inserted : - “ Provided that nothing in this section shall prevent a female relative of a person upon whom a decoration has been conferred from wearing such decoration.”
It is quite a common practice for female relatives of winners of medals of this class to have them made into brooches and to wear them, but under the clause, in its present form, such persons will be liable to a penalty of£20. 1 do not believe that it is the intention of the Minister to interfere with a well-established practice. There may be many cases in which, a husband having won a medal for distinguished service to his -country, or in battle. his wife would like to have the medal made into a brooch to be worn by her. We can also imagine cases where a son has received a medal for distinguished service, and died on a battle-field, and . his mother attaches a high value to the honour.
– Lord Roberts is wearing his son’s V.C.
– I can well understand that a mother would be proud to wear in the form of a brooch a medal or a Victoria Cross earned by her husband or her son, and I do not think that it is the desire of this Parliament to prevent her doing so. There are many medals which mothers would wear with pride. I do not think that my amendment needs much recommendation, because its fairness must be apparent. I feel sure that there is no honorable senator who will take the responsibility of opposing it.
– I am prepared to accept the amendment with the addition of the words “ after the decease of that person.” I take it that, in his lifetime, the winner of a medal would wear it. It is generally after the death of the recipient of a medal that the female relative likes to get it turned into a brooch.
– I accept the suggestion.
– I move-
That the following words be added to the amendment, “ after the decease of that person.”
– Let me remind the Minister that he .has already foreshadowed an amendment that a person shall be at liberty to dispose by will of a decoration. Once decorations have been willed away, I take it that there will be no objection to persons wearing them if they so desire. There, is no need for the Minister to be scared of this amendment. I have never heard of anything more absurd than this suggestion to. add to the amendment the words “ after the decease pf that person.” It has already been provided that if a son wears his father’s medal he shall be liable’ to a penalty of £20 ; but now we. are asked to turn round and enact that a daughter shall have the. right to wear her father’s medal. Is it not contemptible to. waste the. time of Parliament in this way? Is not this amendment beneath contempt? Whether it is accepted by the Minister or not, I ask the Committee to reject it.
-. -Although Senator E. J. Russell did not support any of my sane amendments, I am prepared to support his proposal. I am rather surprised that an old parliamentarian like himself should have been so eager to accept the Minister’s suggestion, because the additional words will destroy his amendment. The average woman is very much soberer than the average man, and, at times, it might be much safer for a man to intrust his medal to his wife.
– I only referred to the wearing of medals after the death of the person to whom they were awarded.
– I understood from the honorable senator’s remarks that his amendment was to apply to the wearing of medals by female relatives during the lives of the winners. An amendment has been foreshadowed by the Minister to permit persons to traffic in these articles, and I cannot see how the present amendment is necessary if it is to apply to the wearing of medals after the death of the persons to whom they were awarded.
– Perhaps the Minister has forgotten that he has foreshadowed an amendment dealing with the disposal of medals by will. As he is aware, a will only speaks from the death of the testator. If the Minister intends to submit the amendment which he foreshadowed, the present amendment will not be necessary. Does he intend to go on with his foreshadowed amendment, or does he regard the amendment of Senator E. J. Russell, with the addition of the words he has proposed, as sufficient?
– My amendment will give no right to the possessor of a medal to wear it.
– Or to dispose of it either. Here is a conflict right away ; because, if proposed new clause 7 is passed, a medal which is disposed of by will can only be worn after the decease of the winner of it.
– It will give the right to possess the medal, but not to wear it.
– We shall have to consider the foreshadowed amendment, when it comes on ; but I am afraid that even then the Minister will not gain his point.
– It would have been much better for the Bill, and much fairer on the part of Senator E. J. Russell, if he had given notice of his amendment, so that it could have been considered. What is a relative?Are we to have a definition clause added to the Bil] ? Surely the Minister can see that the amendment will open up a very wide loop-hole of escape from the provisions of the measure. Is it intended to allow relatives to buy medals when we have passed a prohibition against the sale of them ? I am an opponent of the Bill, but if it must be passed, let its main provisions be preserved in their integrity. Otherwise we shall have this curious position that one person, claiming to be a distant relative of the original holder of a medal, will be at liberty to buy the medal and wear it. That will open the road for the very traffic which the Bill professes to stop. If the Minister does want to stop the traffic, it will be far better for the Committee to reject both amendments. Otherwise the permission to a woman to wear a medal ought to be made contingent upon the medal having been left to her by the winner under his will. I again draw the attention of the Minister to the fact that if these amendments are passed women will be given the right to buy medals.
– In reply to Senator Millen, I would point out that clauses 3 and 4 clearly prevent the sale of medals. This amendment, I take it, will only apply to medals which have been willed by the winners to relatives. I think it is clear that it is only after the death of the winner of a medal that a female relative will have the right to wear the medal. If Senator Millen should think it necessary, we might add the words “ left by will,” but I think that the amendment, as proposed to be amended by me, is quite clear enough. I sympathize with the desire of Senator E. J. Russell that female relatives should be allowed to wear medals after the death of the winners of them. The question has been asked, “ Why should not male relatives of persons having medals be allowed to wear them?” Any person who sees a woman wearing a Victoria Cross or a medal will know at once that she has not been a soldier, but is wearing a decoration, probably because it was won by a relative who is dead ; but if a man is seen wearing a medal, it is naturally assumed that he won it. That seems to me to be a reason why we should allow women to wear medals.
– - I quite agree with the Minister that there is a very marked and obvious distinction be tween men wearing medals and women wearing them.
– If you are prepared to allow a woman to wear a medal as an ornament, can you not also allow a man to wear a medal ?
– Who could distinguish between a man who is wearing a medal as an ornament and a man who is wearing one as a decoration?
– A distinction can be made - as for instance when a man wears a medal on a watch chain.
– I admit that a distinction might be made in that way, but if a male person wished to frustrate the law he could do so quite readily. He could so wear the medal that it might appear to other persons that he had won it. As the Minister pointed out, however, no female could be suspected for a moment of wearing a medal for any other purpose than as an ornament. Women are not permitted to serve as soldiers. But the Minister’s amendment seems to me to spoil the effect of Senator E. J. Russell’s proposal. Under a subsequent clause any person could be arrested for improperly wearing a medal, and the medal could be torn from him by a policeman. Suppose that some lady in all good faith wore her husband’s medal by his permission during his lifetime. Imagine a policeman going up and forcibly taking the medal from the lady’s attire. There is no good reason why a woman innocently wearing a medal should be “meddled” with. Joking apart, no woman who wore a Victoria Cross could possibly be mistaken for a V.C. hero. “ No fraudulent object could be alleged against her. No purpose can be served, therefore, by providing that a woman may only wear a medal after her husband’s death. There is this further point. If the holder of a medal died intestate - as the majority of soldiers do - his widow could not wear his medal because it had not been willed to her. If, however, he Happened to make a will, his widow could lawfully wear his medal. Does not that instance show that the Minister, by unduly restricting the scope of the amendment, is bringing it into ridicule? I think that the amendment as originally proposed is a good one, but that it is by no means improved by the Minister’s proposition.
– I consider that the Minister’s amendment makes Senator E. J. Russell’s proposal absolutely absurd. No authority ought to be able to go to a woman who was wearing a medal and say to her, “ Is your husband or your son or your nephew dead?” If the original owner of the medal were living the woman would be committing an offence against a great Act of Parliament, which it had taken the Senate of Australia several days to put through; but if the woman’s husband or brother or nephew were dead, and had willed the medal to her, she would have a perfect right to wear it. Is not the thing absurd on the face of it? I have opposed ‘ the Bill throughout, but I shall vote for Senator E. J. Russell’s amendment, though not for the Minister’s amendment upon the amendment. How would the Minister propose to act if a woman were brought up by the police for wearing a Victoria Cross decoration, and called upon to prove that her husband, son, or brother was dead? What means would have to be adopted to prove that she was not a widow, or that her brother or nephew was alive? If a man during his lifetime chose to make a present of a medal to his mother, sweetheart, or sister, why should the policeman intervene? The whole thing is ridiculous. Many a man might experience some pleasure in seeing his medal worn during his lifetime by a female relative of whom he was very fond. Is a woman to be locked up because she wears a medal under such circumstances ? Then again, suppose that at the time of the arrest of a woman, for committing an offence under this Bill, the Minister happens to be away in England or in Papua. Is the unfortunate arrested lady to be kept in gaol until his return? I trust that the Minister will withdraw his amendment. I will then support Senator E. J. Russell’s amendment in its original form.
– I desire to explain that I had no desire to bring up the amendment without giving due notice. I spoke to Senator Millen on this subject before drafting the amendment, giving him an idea of what I proposed to do.
– The honorable senator must be making a mistake.
– I reaffirm that I did explain the object to the honorable senator. I thought that the sentiment underlying my proposal would commend it to him, and I was desirous of securing as much support for it as possible. The object of the Bill is to give a correct value to medals. I think that object is a good one. A medal is a record of services rendered. Under present circumstances, a man who meets with an accident, and goes about with a wooden leg, can buy a medal at the pawnshop, wear it, and appeal to the public for sympathy as a hero.
– Does the honororable senator say that that is a usual practice ?
– I am satisfied that there are men in Melbourne today wearing medals that were not won on service, and the wearers of which are not made of the stuff of which heroes are made. It has, however, from time immemorial been the desire of the female relatives of men to wear little mementoes of those they have loved and lost. We should have no desire to put an end to that practice.
– Who is to determine whether the wearer of a medal is a relative or not ?
– There are responsible law officers whose duty that will be.
– Is every woman toface a law suit if she wants to wear a. medal ?
– I presume that the police would have to take the responsibility of proving that a person had no right to wear a medal. I gladly accept the addition to my amendment proposed by the Minister, because it makes the meaning clearer. At the same time, if the Minister’s addition is rejected, I still think that my amendment in its original form will serve a good purpose.
– - By the use of the word “relative “ we are introducing in the Bill a term that is not known to the law. Lawyers know what is meant by the next of kin, byexecutors, by administrators, and so forth, but what is a relative?
– Why does the honorable senator, in his conceit, imagine, that others have not looked into the meaning of words used by them?
– I am not troubled about conceit, humility, or any of such abstract terms in this connexion. Will the Minister tell us what “ relative “ means ?
– I will send a dictionary to the honorable senator. :
– An ordinary dictionary would beof no use. The word “relative” is not capable of a satisfactory definition for the purpose of legislation. What does it mean? There is a relative by blood and a relative by marriage. The word as used in the amendment is absolutely irrelevant, so far as the disposition of properties is concerned. The Minister has accepted Senator E. J. Russell’s amendment to permit a female relative to wear a medal after the decease of the person who gave it to her. Under the amendment, as fixed up between the Minister and Senator E. J. Russell, if a medal has been conferred upon a female by a person lawfully entitled to wear it she may wear it on the decease of that person. But under the clause, if amended as proposed, the proof will lie upon her that she is a relative of the deceased recipient of the medal, and that it was given to her by him. A woman walking down the street, and wearing one of these medals or decorations, might be accosted by an official of my amiable, but somewhat despotic, friend, the Minister of Defence, and asked to supply evidence that the person who conferred the medal upon her was a relative. She might have to go through all this humbug before she could escape the clutches of the officer sent round by the Minister of Defence to look after these decorations.
– Unless she is lawfully entitled to the medal. Whatdoes that mean?
– I do not know. The intention of the Minister in accepting the amendment suggested by Senator E. J. Russell is that, if the recipient of a medal confers itupon a female relative, she may wear it without molestation after his decease. But the clause provides that the proof shall lie upon “ him,” which includes her, to show that she is lawfully entitled to wear the decoration. She may be prevented from wearing the medal or decoration unless she can satisfy the Minister of Defence, through his myrmidons, that it was conferred upon her by some relative, whatever that may mean, and that that relative is deceased. If we are to pass legislative absurdities we should at least, try to make them logical. Senator E. J. Russell has raised the difficulty of a female wearing one of these decorations, and being called upon to prove that she got it from some relative. Outside the ordinary meanings given in a dictionary, neither Law Courts nor lawyers know much about the meaning of the word “ relative.” I am sure that the Minister of Defence cannot, for the purpose of legislation, determine what a “relative” is. We may find some work-a-day definition in a dictionary, but that may not be sufficient. As I have previously mentioned, heirs, next of km, assignees, and trustees are terms known to the law and in legislation, but for the purpose of the ownership or disposal of property the term “ relative “ is not known.
– I rise to a point of order. Is an honorable senator in order in saying to another, “ For God’s sake, shut up “ ?
– I did not hear the remark.
-I ought, perhaps, to apologize for discussing a Bill like this at such length. Senator Chataway has now asked me, in the name of God, to cease my observations upon it, and that should be sufficient to silence any man, and induce him to discontinue his opposition to the measure.
Question - That the words proposed to be added to the amendment be added - put. The Committee divided.
Majority … … 3
Question so resolved in the affirmative.
Amendment of amendment agreed to.
Question - That the amendment, as amended, be agreed to - put. The Committee divided.
Majority …… 6
Question so resolved in the affirmative.
Amendment, as amended, agreed to.
– There is a penalty provided for in clause 5 as amended, and I suggest that Senator Walker or some other honorable senator, in order to secure a reputation for generosity, might move in the direction of bringing it into uniformity in this respect with the other clauses of the Bill.
– This is a very different thing.
Sitting suspended from 6.30 to 8 p.m.
Clause, as amended, agreed to.
Clause 6 -
Every decoration which is sold, exchanged, pledged, or otherwise disposed of in contravention of this Act shall be forfeited to the King, and may, without warrant, be seized by any member of the police force of the Commonwealth or of a State or Territory for delivery to the Defence authorities.
– The clause provides, in effect, that a policeman may, without warrant, arrest any person who is found wearing a medal or decoration. We should strike out all the words after “may,” and provide that the medal or decoration may be recovered in a Court of summary jurisdiction. Even the Minister must admit that to raise a contravention of this measure to the level of a first-class crime, so to speak, is to give it an importance which he has not yet claimed for it. Surely no one will contend that such a serious injury will be inflicted, by a person wearing a decoration which he is not entitled to wear, as to make it necessary to provide that a police official may arrest him without warrant, and forcibly take the medal from him.
– No; the clause provides that, after a contravention of the Act has been proved, a constable may seize the medal.
– Am I to understand, then, that if I should be found hereafter wearing a medal which I was not entitled to wear, I could not be arrested by a constable?
– First it will be necessary to establish a contravention of the Act, and then, without warrant, the medal may be seized. - It may not be in the possession of the person who contravened the Act, but in his house or elsewhere.
– I shall be very pleased indeed if the Minister can demonstrate that the intention of this clause is accurately set out. I was glad to hear his statement, because it seems to me that he is only aimingat the same objective as Senator Rae had in mind. If that is his only desire, he will not resent an amendment if it can be shown to be necessary. In the first portion of the Bill there is a prohibition against the selling of a decoration ; but under this clause a constable may enter a pawnshop and if, in reply to a question, the pawnbroker says that he got possession of a medal as a pledge, it can be seized.
– If the honorable senator will look at clauses 3 and 4, he will see that the person who pledges or receives in pledge a medal is liable to prosecution and fine. It is under those clauses that action will be taken, and afterwards a constable may seize the medal without a warrant.
– I have no doubt that that is the intention of the clause, but I ask the Minister to read the clause without words which are not necessary for the purpose of my argument -
Every decoration which is . . . pledged in contravention of this Act shall be forfeited to the King, and may, without warrant, be seized.
Inasmuch as the measure makes all pledging illegal, I hold that, under this clause, a constable will have the right to ask a pawnbroker how he got possession of a medal ; and if it was by way “ of a pledge, he will say at once that it was obtained in contravention of the great Bill which it took the Senate three or four weeks to pass. Having directed attention to the necessity for an amendment, I leave the matter to the Minister to deal with. I feel sure that a verbal alteration would give the Minister all the power which he wants to obtain, without running any risk.
– The clause may be open to the construction which Senator Millen has pointed out, but my advice is that it is not. I have asked that the Crown Law authorities shall again be consulted, and if that meaning can be put on the provision, we shall have an amendment made. It is not intended to have that meaning at all.
Clause agreed to.
Amendment (by Senator Pearce) proposed -
That the following new clause be inserted : - “7. - (1.) The Minister may grant permits, in writing, subject to such conditions and restrictions as he thinks fit to impose, to public institutions or bondfide collectors to acquire and retain decorations. (2.) Subject to the conditions and restrictions contained in the permit being complied with, the provisions of this Act shall not apply to any sale to or acquisition by the institution or person named in the permit of any decoration.”
– I do not know whether it is wise to empower the Minister to grant permits to perhaps a few favoured persons in the community. I do not say that our Minister would do such a thing, but we might have a Minister who, under a loosely-drawn provision of this kind, would make such a concession, and that great army of men who, in different parts of the Commonwealth, have been carrying on a legitimate business with medals will find that they are shut out. I should like the proposed new clause to be made more definite or to be rejected. I have not had time to consider an amendment, because I did not expect that the Minister would attempt to hurry the measure through at this rapid rate. I should prefer a clause providing that the Minister “ shall “ grant permits, not only to public institutions or bona fide collectors, but also to persons licensed under the laws of the States to deal in medals. That would protect those who are in possession of a number of medals which they obtained in a legitimate way. The Minister has stated that this measure is not to be retrospective in its operation, but a man who has acquired 100 medals at a cost of, perhaps, £500, will find, after it has passed, that he can no longer exhibit them for sale, because the right to sell is taken away. I wish to secure to dealers in medals the right to continue to trade in them, or if the Minister is not prepared to go so far, at least to allow them to sell their stocks. If an amendment in that direction could be proposed by an honorable senator who has the ear of the Minister I think it would be to the advantage of present traders. The proposed new clause says that the Minister may grant a permit according to his disposition. Even with so fair and reasonable a Minister as we have, I venture to predict that if Senator Walker and I were to apply for a permit to purchase medals the former’s application would be assented to and mine would be refused, because I retarded the passage of the measure so much. I am not inclined to leave important matters to the discretion of the Minister. If it be necessary to have drastic legislation, let it bear on all persons alike, and let there be no favourites of the Minister, no matter who he may be. I propose to move the omission of the word “ may “ with a view to substitute the word “ shall,” so that it shall only be necessary for an applicant for a permit to prove that he is a bond fide collector.
– The word “may” is generally accepted as mandatory.
– That is news to me. In that case there can be no objection to the use of the word “ shall.” Instead of the words “ subject to such conditions and restrictions as he thinks fit to impose,” I would prefer the words “ subject to such regulations as may be made under this Act,” because I do not believe in passing a measure if its administration is to be left subject to the whim of the Minister. It is possible that we may get a Minister who will act in a way which no one anticipates. If any one had told me six months ago that Senator Pearce would have introduced a Bill of this kind I should have laughed at the suggestion. If we get a worse Minister, how serious will the position be ? The Minister ought not to be left the discretion to discriminate between two applicants for the right to buy medals. Ferhaps, under this measure, one man may acquire the right to buy medals, but no one in the Commonwealth will have the right to sell medals to him. The more I look at the proposed new clause the more complicated it appears to me. The Minister has placed in my hands an amendment which he says he will accept if moved by me. It affords me satisfaction not to proceed with the amendment I outlined, and to move -
That after the word “ decorations,” line 5, the following words be inserted : - “ or to persons licensed under any State law in relation to pawnbroking to dispose of decorations in their possession at the time of the passing of this Act.”
Had an intimation of this kind been given three or four days ago I should not have had so much to say on this measure.
– I should like to ask the Minister whether it might not more fully meet the case if he named a date when the measure is to come into force? That would put every person on the alert to try to dispose of any medals in his possession before that date. The amendment extends the power of the Minister to grant permits to pawnbrokers to dispose of their stocks, but a request of this kind might be made to the Minister at any time, and, therefore, I think that a period of six or seven months should be allowed to persons in which to dispose of their goods.
– I draw the attention of the Minister to the rather extraordinary verbiage of the proposed new clause. It says that the Minister may grant permits in writing subject to such conditions and restrictions as he thinks fit to impose. But I would point out that it is usual to make conditions and restrictions subject to regulations made in pursuance of the Act. The Minister is asking for carte blanche with regard to conditions and restrictions. I do not think there is any provision in any Act of Parliament which gives a personal right to the Minister to determine “as he thinks fit.” If these words are allowed to go in, they may be construed to mean that Parliament gives to the Minister power to make any regulations or restrictions according to his personal whim. Why cannot we follow the usual practice and provide that things shall be done “ subject to regulations made under this Act”? The clause goes on to say that the Minister may grant permits in writing to public institutions and bond fide collectors. It does not, however, say anything with regard to disposing of medals and decorations. In one portion of the clause, the Minister evidently does not intend to restrict the right of bond fide collectors of medals to acquire such objects. But if a collector can acquire them, why should he not be able to dispose of them to another bond fide collector ? If the right to acquire is given, why should it not carry with it the right to dispose of?
– I think that the right to acquire implies the right to dispose of. .
– Is that sufficiently clear ?
– I am quite willing to insert the words “ dispose of.”
– I also suggest that the Minister should insert the words “ subject to regulations made under this Act.”
– There could not be regulations under such a measure as this.
– Well, I will not labour the point.
– On behalf of Senator Gardiner, I ask leave to withdraw his amendment temporarily, so as to permit of a prior amendment being moved.
– I object.
– Power is now being given to the Minister to relax the law where he is perfectly satisfied that no attempt is being made to defeat the intent and purpose of it. That being so, I suggest that wider power should be taken than the clause appears to convey. I would make it read -
The Minister may grant permits in writing, subject to such conditions as he thinks fit to impose, to any public institution or to any person, to sell and acquire and retain medals and decorations.
At present, the clause is limited to institutions and bond fide collectors, who may acquire, and to pawnbrokers who may sell. But I can conceive of people who have held medals and decorations in their familiesfor many years. They may, for some reason, wish to sell to another person who. may not be a collector in the ordinary sense. I do not think we can shape any clause which will be sufficiently comprehensive to embrace all varieties of cases which may suggest themselves to the mind. We might, leave it to the Minister to grant permission, feeling certain that it would only be granted where it was regarded as certain’ that the purpose and intention of the law were not being violated.
– Substitute “ any person “ for “ collector.”
– Yes ; we might leave it entirely to the Minister to decide whether any person should be entitled to sell or buy. It must be clear that there are many, cases in which an injustice would be done if a transfer, even for valuable consideration, is not sanctioned. In many of such cases, no harm could possibly happen from the transfer of a medal which has been held in a family for many years to another person who desires to acquire it.
– I do not feel inclined to open the door as widely as Senator Millen suggests. It would be going too far. We have already included public institutions, bond fide collectors, and those persons who under a State law have legally acquired medals. That is going far enough.
– Why not give the same right to individuals?
– I cannot think of a case where any hardship would be done if the clause were passed as amended in the manner proposed. As regards the point raised by Senator St. Ledger, he will have an opportunity of moving an amendment when the clause is reconsidered.
– Is there any clear definition in a State Act as to what ‘ ‘ pawnbroking ‘ ‘ means? Pawnshops are sometimes called loan offices. All sorts of other names are also’ employed.
– There is a legal definition of “ pawn.”
– There has not been time to search the various State Acts, so that I cannot give a positive replyto Senator. Chataway’s question. The amendment has been hurriedly framed, and will be looked into carefully to insure that it covers what it is intended to do.
– I assume that the Minister will take the necessary steps to see that the Bill does not go to another place containing the word “pawnbroking,” if that term is nebulous and ill-understood?
Amendment agreed to.
Proposed new clause, as amended, agreed to.
Amendment (by Senator Pearce) proposed -
That the following new clause be inserted : -
This Act shall not prevent the disposition by will of any decoration.
– Why not give the same privilege to a person who wishes to dispose of a medal or decoration by deed or settlement? A deed is a well-considered act, just as much as is a will.
– Is not a will a deed?
– A will is something more than a deed. Wills are construed by a different set of regulations from those used in construing a deed.
– The principle of this Bill is that, during the lifetime of the holder of a medal, he shall not dispose of it. To enable him to do so by deed would be foreign to our purpose.
– What effect would this clause have in the case of a person who was the natural heir to the owner of a medal who had died without making a will? Would the medal revert to the King?
– The Curator of Intestate Estates would administer the estate.
– The Curator of Intestate Estates administers with the idea of raising all the money he can. But would the heirs have the right to detain a medal owned by the intestate person? I do not think that the purpose of this measure is to prevent the heirs of the holder of a decoration from retaining it; but to prevent any other person acquiring the decoration during the lifetime of the person upon whom it was conferred. A medal has very little intrinsic value, and if it got into the hands of the. Curator of Intestate Estates, it might never get back again into the hands of the natural heirs. Would the Minister be agreeable to a provision being inserted to insure that the widow, or next-of-kin, shall have a right to acquire a medal in the event of the holder dying intestate?
– I admit that there is a slight gap in the Bill, so far as concerns intestate estates. I have had an amendment drafted that I think will meet the case. I move -
That after the word “ will “ the following words be inserted, “ or by devolution under a State Act in the case of intestacy.”
– Suppose that a State Act dealing with intestacy prescribes the method of devolution of real and personal property. In what position would the Curator of Intestate Estates be when a medal came into his possession?
– Claims will be put in, and the Curator will have to determine how he will distribute the estate.
– If a medal is to be regarded as an heirloom, I suppose it will pass to the heirs.
– If there are no heirs it will revert to the King.
– I understand that in a case where no will is made, and the State Act relating to devolution does not apply, the medal will go back to the King. Is that the deliberate intention of the Minister?
– That is the practice.
– Probably the Minister is rightly advised. As a matter of fact, the word “ heirs “ has a very limited application in our law.
– I know what “ devolution “ means, but I do not know all that the law relating to intestate estates means. No one can tell how the law operates in all of the six States. Would it not be simpler to provide, after the word “ will,” that the widow or next-of-kin, in a case where there is no will, shall have the right to retain a medal ? A medal is not property in the ordinary sense of the term. A sentimental value attaches to it, and I want the widow or next-of-kin to have the right to nourish that sentiment. The Curator of Intestate Estates might simply be a finnicking individual, who would not lose an opportunity of realizing half-a-crown upon a medal.
– The Curator could not sell.
– Why not say straight out that the widow or next-of-kin shall have the first claim?
– The point raised by Senator Rae is simple compared with what is going to happen when an estate is both insolvent and intestate. The Minister is now making an exception, in so far as a State law affects the estate of an intestate person Under a State law, dealing with the subject, it would follow that the Curator of Intestate Estates would be entitled to realize on one of these medals.
– He could not sell it; it would not be a realizable article.
– But I point out to the honorable senator that he is making an exception in this particular case.
– That is a very abstruse problem.
– I have only to call attention to it. If the Minister chooses to turn his hair grey in wrestling with it, I have no objection. I do not propose to wrestle with it any further.
– I wish to ask whether there is anything in this Bill to prevent an executor of an estate, or the owner of one of these medals or decorations, melting it down, and disposing of the proceeds - not selling it as amedal?
– I do not think there is anything to prevent that.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
– I ask the Minister now to accept the suggestion to fix a date when the Bill will come into operation. It would be much more simple to do that than to go to the trouble of issuing permits to sell medals to a lot of pawnbrokers, and other people. If they are given notice that the measure will come into operation on a certain date, they will be able, in the meantime, to dispose of any medals or decorations at present in their possession.
– In view of the alterations which the Committee have made, affecting pawnbrokers, I think the honorable senator’s suggestion is worthy of consideration. As it would be necessary to recommit the Bill to insert a new clause to give it effect, I give the honorable senator my assurance that before the measure is finally passed into law, an amendment will be drafted.
– If the Minister is considering an appropriate date for bringing the Bill into operation, I suggest that it should be the 26th April.
Title agreed to.
– I move -
That clause 6 be reconsidered.
If honorable senators will look at subclause 2 of clause 7, which reads -
Subject to the conditions and restrictions contained in the permit being complied with, the provisions of this Act shall not apply to any sale to or acquisition by the institution or person named in the permit of any decoration - they will see that the point raised by Senator St. Ledger is met by that sub-clause, and it is therefore unnecessary to reconsider the clause to which he referred.
Question resolved in the affirmative.
Clause 6 -
Every decoration which is sold, exchanged, pledged, or otherwise disposed of in contravention of this Act shall be forfeited to the King, and may, without warrant, be seized by any member of the police force of the Commonwealth or of a State or Territory for delivery to the Defence authorities.
Amendment (by Senator Pearce) agreed to-
That after the word “ is,” line i, the following words be inserted : - “ proved on the trial of the person in possession thereof for an offence against this Act to have been.”
– I may be mistaken, but I am under the impression that it was agreed to be necessary to reconsider clause 3 to bring it into conformity with clause 4 as amended. It will be remembered that in clause 4 we introduced the . words ‘ ‘ for valuable consideration,” and I pointed out to the Minister at the time that it would be necessary to insert similar words in clause 3.
– I think they were inserted in clause 3.
– Clause 3 was amended only by the substitution of the word “five” for the word “twenty.”
Motion (by Senator Pearce) agreed to-
That clause 3 be reconsidered.
Clause 3 -
A person being or having been a member of the King’s Naval or Military Forces or of the Defence Force shall not sell, exchange, pledge, ot otherwise dispose of, any decoration conferred on him for service performed in or out of Australia.
Penalty : Twenty pounds.
Amendment (by Senator Pearce) agreed to-
That after the word “of,” line 4, the words “ for valuable consideration “ be inserted.
Clause, as amended, agreed to.
Bill reported with amendments.
Bill received from the House of Representatives, and (on motion by Senator Pearce) read a first time.
Bill received from the House of Representatives, and (on motion by Senator Findley) read a first time.
Bill returned from the House of Representatives without amendment.
In Committee (Consideration resumed from 5th October, vide page 1109):
Clause 2 -
Part VI. of the Principal Act is repealed and the following Part inserted in its stead : -
Part VI. - International and State Copyright.
– I would like to ask the Minister in charge of this measure if it is proposed to limit the amendments of the existing Copyright Act to what is outlined in the Bill now before us. When speaking on the second reading, I drew attention to the necessity, if we proceeded to amend the Act, for its amendment in more particulars than is provided for in this Bill. I made reference to the desirableness of bringing our Copyright Act into line with the Imperial Copyright Bill, which, I understand, has passed the House of Commons and merely awaits now the concurrence of the House of Lords, if it has not already received it. Early in the Imperial Bill provision is made to meet the modern developments of reproduction by mechanical means. I pointed out, when discussing the Bill on the second reading, that clause 1 of the Imperial Bill provides, amongst other things, that “Copyright” means certain things which are outlined in paragraphs a, b, and c as indicated in that measure, of which paragraphs a and b are already contained in our Act, c being a new provision, and one which we certainly should adopt in our Act. If the Government have no amendments dealing with this matter to introduce, I should like to have an opportunity of suggesting an amendment to the Committee in order to take its sense as to the desirableness of extending the definition of “ Copyright “ to include what is contained in paragraph c of clause 1 of the Imperial Bill to this effect -
Copyright shall include the sole rjght in the case of literary dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.
The proper place to insert that would be in section 13 of the existing Act dealing with copyright in a book, which is defined to mean the exclusive right to do or authorize any person to do a number of things in paragraphs a, b, c, d, e, andf; and I would propose to add paragraph c of the Imperial Bill as an additional paragraph g to that section. We would be justified in assuming that that provision will appear in the Imperial Copyright Act, and, by adopting it, we would have the advantage of conformity with the provisions of that Act, and any judicial decisions which might be given under it. But in order to have this provision inserted in the Bill, we should have to hark back to Part III. of our Act. Clause 2 of this Bill repeals Part VI. of the Act, and substitutes a new part. If we pass that clause, we shall have to retrace our steps to include the provision I have mentioned, lt was only for that reason that I rose to point out the necessity for the matter being considered at this stage. If the VicePresident of the Executive Council is not prepared to take the initiative, and will afford me an opportunity to do so, I shall justify the inclusion of the provision.
– Senator Keating has always taken a. very deep interest in matters relating to copyright or trade marks, and I am sure that his intentions on this occasion are the very best. But it is not conducive to uniformity for the Commonwealth to accept an Imperial Bill which has not yet become an Act. Although it has passed the House of Commons, and is before the House of Lords, yet that is no criterion as to the form in which or when it will be passed. To my mind, if anything should be done to carry out Senator Keating’s intention, it would be to postpone the consideration of the Bill until we know the final form of the Imperial legislation. The very cause for the introduction of this Bill makes such a course inadvisable. In the past we enacted very liberal copyright legislation, but we omitted to include artistic productions, and it- was for the purpose of remedying that’ defect that this Bill was introduced. It would be much better, in the interests of uniformity, to pass the Bill, so as to give relief to those who have suffered, and as soon as possible after the passage of the Imperial amending Bill, to embody its provisions in our law. I would remind Senator Keating that our legislative processes are very much simpler than those of the Imperial Parliament, and that it will be less difficult here to give relief where it may be found to be required. Esther this Bill should be postponed until the Imperial measure has Ween passed, or it should be passed in its present form in order to give relief where it is really required. I hope that Senator Keating will not persist in his intention to amend the Bill, but will be satisfied with my assurance that as soon as the necessity for securing uniformity arises, every facility will be afforded, here and elsewhere, to amend our law accordingly.
.- T think that the Vice-President of the Executive Council has misunderstood me entirely. I did not make the suggestion at this stage on the ground of securing uni formity at all. I never for a moment suggested that our copyright legislation should be delayed until we see how the Imperial Parliament has dealt with its Bill. Had we done that, we should not have the Copyright Act of 1905. We all know that, since the middle seventies, the authorities in Great Britain have been giving attention - sometimes of a spasmodic character, but certainly continued attention - to the necessity for passing comprehensive legislation on the subject of copyright in all its bearings. For years past there have been Bills presented to either House of its Parliament, particularly to the House of Lords. But, in 1905, we did not wait until the Imperial Parliament had passed an Act, nor did I appeal to any proposition before that Parliament as an inducement to the Senate to pass a measure, or ask the Senate to do so on the ground that we should necessarily have uniform legislation. Our Act contains some provisions the like of which are not to be found in other legislation - provisions which, while entirely novel, have been an- undoubted success. I remember receiving very ominous warnings from certain honorable senators at my attempt to make them law. What I did point out on the second reading of this Bill was that, since 1905, developments have taken place which have made it possible to infringe in substance and in fact what are copyrights, performing rights, and other monopolies of that character. Technically, legally, and strictly, they are not infringements. Finding that these are the circumstances, it is our duty to provide remedial legislation, and to make our copyright effective in every respect. I pointed out, too, that that fact has been realized in Great Britain, and that, in order to provide a- proper remedy, a measure has been introduced which has proceeded so far that it has got through the House of Commons. I indicated the nature of that measure, but not for the purpose of getting uniformity, although I realized what would be the advantages of uniformity hereafter if it became an Imperial Act. We would then have uniform interpretation ; and as an indication that we would not now be adopting expressions which were meaningless, but expressions which had been prepared after mature consideration, and, as a guide, I pointed to these’ provisions in the Imperial Bill which may get through the House of Lords, and become part and parcel of an Act. Is there any reason why we should hesitate? Are we not all aware that, in different centres in Australia, it is possible to see enacted at picture shows notable dramatic performances ; and are we not aware that the dramatic rights in respect to some of these performances may be held and enjoyed under our Copyright Act by some person who has not authorized such productions, but whose rights in respect of the productions are just as seriously infringed and detrimentally affected as if they were enacted by a company of actors? Are we not aware, too, that there are mechanical performances by means of the phonograph, musical transpositions, musical performances by means of the aeolian and the pianola and other mechanical contrivances of that character, which, in fact and in substance, are just as detrimental to the owner of the performing right under the Act as if the performances were given by an individual with a piano or other musical instrument? If it were done by an individual it would be an infringement of the performing right, but, because it is done by means of a mechanical device or contrivance, the owner of the performing right is denied any remedy or redress merely because we did not include what we should, and no doubt would, have included in the Act of 1905, if developments had reached the stage which they have reached to-day. I have merely pointed out that the British authorities have recognised this state of things. In the necessarily slow and cumbersome way in which the British authorities must approach all remedial legislation dealing with subjects which are not of burning importance to the electors, such as the licensing of public-houses, education, and matters of high Imperial concern, they have proposed to provide a remedy. Injured or aggrieved individuals have sought redress in the Law Courts, only to be told, as I informed the Senate in the case of Boosey and Company versus White, that, the performance of a copyrighted piece of music by means of the aeolian does not amount to an infringement, and so no injunction can be obtained against it, and no damages can be successfully applied for in a Court of Law. Why should we not do as we did in 1905 ? Has the old spirit which animated this Parliament in that year and induced it to endeavour to do right in all these matters, regardless of legislation elsewhere, departed? Are we to wait, to be nothing but the slavish imitators of legislators elsewhere? The Minister referred to the fact that we can deal more expeditiously with legislation than they can in the Old Country. Knowing that we ‘have that opportunity, why should we not rise to the occasion? Why should we not meet the necessities of the moment? It has’ been a boast on the part of the Commonwealth that its copyright legislation was more comprehensive and advanced than other enactments of the kind. When we have an opportunity presented to us now by simply adding to clause 13 a provision of the character I have mentioned, why should we neglect it? I have pointed out that what I have asked to be inserted is merely a sub-clause of a clause of the Bill before the British Parliament. I did not refer to that fact to indicate that it should be adopted by us because it is British legislation. I pointed out that the words I want inserted must be free from suspicion, inasmuch as they were drafted by well-known authorities, and have received the indorsement of the House of Commons. If there are local causes for delaying the passing of the Imperial Bill, that is no reason why we should hesitate. It is not necessary for uniformity, but it is a good guide for us. Until the Imperial Bill becomes law surely we can have something which will make our Act watertight? If there is legislation passed at Home twelve months, or two years, or five years hence, which, in this respect, may vary from the clause I have read, it will be quite possible for this Parliament, if it sees fit, to adopt that in preference to what is now proposed. I put it to the Minister that no possible harm can be done by adding this provision to clause 13. If the addition is made, it will carry out the spirit and the purpose of our Act, and in the best way which is open to us. Acting on the guidance which the Imperial Bill affords us in this respect, no consequences can follow which cannot be of advantage. No injury will be done to anybody, and to some extent we shall help to make our Act watertight, and, perhaps, give a lead to the Home authorities in bringing to legislative form what I have read. This addition, if made to clause 13, will simply provide that any person who holds a literary, dramatic, or musical right under the Act shall have the sole right, either by himself or by an authorized person, to make records, perforated rolls, cinematograph films or other contrivances by means of which such works may be mechanically performed or delivered. That is the object which the Imperial Parliament is seeking to achieve, and what better guide can we have? The fact that the Imperial Bill has not become law should not debar us from proceeding. If it should be found necessary in the Lords - I do hot think it will be - to eliminate or modify the provision, it will be time enough for us then to reconsider what I am asking the Committee to do to-night. I think, too, that the Vice-President of the Executive Council in dealing with the question of uniformity overlooked the fact that the very provisions which this Bill contains, from beginning to end, have no precedent in Imperial legislation. Clause 2, which covers proposed new sections 62 in four paragraphs, 6 2 a, 63 in two paragraphs, 63A and 63B is absolutely unprecedented and novel legislation, and the argument which the Minister has used against my proposal to insert a provision before clause 2 applies with tenfold force to that extensive provision itself. There is no Imperial warrant for clause 2, but there is the agreement which was arrived at between the countries represented at the Berlin Conference and in the Berne Convention, and which has not yet become Imperial law. We are taking that step in advance. What I propose with regard to mechanical productions was also agreed upon at the Berlin Conference. That international conference decided that copyright, performing right, and musical right should be included. If we are to anticipate the Act of the Imperial Parliament, why does not clause 2 of this Bill anticipate their proposal in other respects? I am not suggesting that the Committee should go further than the Minister himself is prepared to go in anticipation of Imperial legislation. We provide in clause 3 for the registration of works published in series. That is unprecedented so far as Imperial legislation is concerned. There are other provisions of this Bill which are entirely in anticipation of Imperial legislation. So that the argument as to that point, and as to the necessity of waiting until the Imperial Bill becomes an Act, applies with equal force to every one of these provisions. As to the other matter referred to by the Vice-President of the Executive Council - namely, with regard to artistic copyright, and the necessity for our making provision in the law to remedy a defect - let me remind the Committee that when the Copyright Bill was before the Senate a few years ago, artistic copyright was deliberately and designedly excluded from the conditions, in this respect, made applicable to literary copyright. It was not a mistake. It was not an accidental omission. It was the deliberate policy of the Senate at the time.
– The very fact that, what was done was deliberate did not make it the less a mistake.
– My honorable friend referred to the subject as if this Bill had been designed solely to remedy an oversight, omission, or defect in the law. I remind honorable senators that in 1905, when the existing Act was passed, it was sought - against my express will and against the terms of the Bill, as originally introduced -to attach to copyright a number of conditions, notably with regard to the production in Australia of the works to be copyrighted, with respect to printing and many other matters of the kind. The sense of the Senate was against the Bill as presented, and conditions of the character that I have mentioned were attached. Those conditions were regarded as having something of a fiscal character. They were considered to be in the nature of protection, inasmuch as they imposed upon those desirous of acquiring copyright the necessity of local production in many instances. I wish to point out that the Bill, if accepted in its present form, virtually sweeps away the conditions then laid down. 1 hope that honorable senators are doing this with their eyes open. I speak without any feeling, because the conditions were incorporated in the Act against my express wish. and were not in conformity with the measure as presented. I ask the VicePresident of the Executive Council to realize that the incorporation in this Bill of the provisions that I have read, as to the inclusion in the term copyright of the right to prepare, dr authorize the preparation of mechanical means of production, is nothing novel. It is something occasioned by the development of the times. It is something which might be included in the term copyright as recognised by the Berlin Conference. It is something which is recognised as necessary to be included in the statutory definition of copyright as expressed’ in the Bill passed by the House of Commons. It is something which we also should recognise ; and this is the time and this is the Bill in which it should be expressed and recognised, and in which we ought to do justice. We cannot be better guided than by using the forms of expression which the Imperial authorities, after international consultation, and after careful draftsmanship, have submitted, and which have received the indorsement of the House of Commons.
– When I referred to uniformity I had no intention of expressing the idea that either Senator Keating or I was bound by any claims for uniformity with legislation passed by any other country in the world. We are always prepared to go “ on our own “ where the exigencies of the case demand that we should do so. But I wish to point out that, when in 1905 we were legislating with regard to copyright, the Imperial Parliament was doing nothing upon the subject. Though, as has been stated by Senator Keating, since 1875 the Imperial Parliament has been dealing in an intermittent manner with legislation on this subject, they have actually done very little. It is because they have done very little that we were prepared to do so much. At the present time the Bill, which has been referred to by the honorable senator, is before the House of Commons. I think it advisable that we should take advantage of the deliberations of the Imperial Parliament and pay heed to the work they may do, and which may guide us in further amending our copyright law in the direction of uniformity.
– The Imperial Parliament has not passed anything like clause 2.
– It would be very easy to accept the amendment which the honorable senator has suggested in section 13 of the principal Act. But it must be remembered that the Bill which the honorable senator has in his possession is designed to meet the very necessities that have led to certain provisions being inserted in this Bill. There are, for instance, provisions dealing with the relations that should exist between the holders of copyright and the proprietors of mechanical contrivances.
– Why should we pass a Bill which does not provide for all contingencies ?
– The Bill to which Senator Keating has referred does so as far as possible, and it would be. almost necessary that we should do something of the same kind. That is the reason why I counsel delay. We should be anxious to get the benefit of the Imperial legislation on the subject. If there were not a Bill before the Imperial Parliament - if there were no apparent intention to legislate in Great Britain - we should be justified in stepping forward and passing a Bill that would be as comprehensive as possible. But, under the circumstances, I think that the wisest plan is to wait and see what the Imperial ‘ legislation will be. Then, if we think it advisable, we can, as scon as possible, act in conformity.
– The Government should hang up the whole measure, then, because it is all new.
– There is a necessity for the Bill that is now before us. Applications and appeals have been made tothe Commonwealth authorities upon the subject, from those who consider themselves entitled to copyright in artistic work. It has become evident that something should be done. But no urgent claims have been put before the Commonwealth authorities for amendments in the direction suggested by the honorable senator. I am not saying that they are not advisable, or that they ought not soon to be embodied in our copyright law. But a demand has not been made for them to the same extent as a demand has been made for legislation on the subjects covered by the Bill before us. It is for that reason that I should like to see this Bill passed into law as soon as possible. I am sure that, hereafter, the material which the honorable senator has in his possession, will be taken into consideration, and those who are suffering in any way, under existing conditions, will be afforded the remedies to which they are entitled. I therefore trust that the Bill will be proceeded with, upon the understanding that, in the near future, we shall take up the subject more comprehensively than we could possibly do in the measure that is now under consideration.
. - I wish to ask the Vice-President of the Executive Council again whether he seriously urges that the whole of this measure is justified by any applications that have been made to the Federal authorities?
– That is what I understand.
– What application has been made to the Federal authorities, for instance, with regard to clause 62a? My honorable friend has referred to artistic copyright, in saying that applications have been made for the introduction of this measure*. He urges that a Bill of this character is required to remedy defects in the existing law. I deny that the Bill remedies any defects; on the contrary, it deliberately sweeps away what has been the underlying principle of the law of copyright in the Commonwealth. I can only think that those who have been responsible for the drafting of the measure have been absolutely unmindful of the emphatically expressed policy laid down with regard to copyright in 1905, and that they have even failed to consult the debates on the subject at that time. I venture to say that this Bill, if passed, will prove to be an imperfect, and most mischievous, piece of legislation, and that it will be utterly inconsistent with provisions in the existing Act.
– How does it conflict?
– The conditions attached to copyright were of such a character that they were referred to as having a fiscal bearing, or as being protective. It is now proposed to extend reciprocity in such a way as to make it possible for any one to get copyright in the Commonwealth without complying with the conditions prescribed in 1905.
– They can only get it by reciprocating with the Commonwealth.
– But what advantage is that to local writers, publishers, printers, and others? Those are the considerations which received very prominent consideration in connexion with the establishment of our system of copyright in 1905. The United States system appealed to a large number of legislators here and elsewhere. It was pointed out that America had virtually cut herself out of association with other countries in connexion with copyright. It was considered that to legislate, to some extent, on the same lines as America had done would constitute an advantageous position for us. It was sought by a sufficiently large majority to engraft similar provisions in our Act. But now, by inconsisent legislation, it is proposed to remove those conditions. I am not so much concerned with the policy as with the inconsistency which will exist, and with the trouble and difficulty in which those who are affected by copyright will find themselves when they have the original Act and this amending measure before them. With respect to the suggestion of the Vice-President of the Executive Council in relation to applications made to the authorities by persons who thought they were entitled to copyright in the Commonwealth, I would point out that the defects in the existing law have been apparent to many people. The reason why they have not made application to the authorities is that they knew that, in consequence of a series of judicial decisions in the Old Country, it was absolutely useless to present their claims until new legislation was introduced in the Commonwealth. Since this Copyright Bill has been introduced, I have received communications from different parts of Australia relating to it. Only this afternoon, I was waited upon by a gentleman who told me that he had in his possession in this city a memorial signed in several of the capital cities of the Commonwealth by artists, writers, and others, asking for an amendment of the Copyright Act - and that quite independently of the introduction of this Bill. The gentleman left this building with the object of going to fetch the memorial, which he promised to hand to me to-morrow.
– Has it been long in existence?
– It has been in existence some little time.
– Those responsible were very foolish not to send it to the Department for consideration.
– They may have been very foolish, but their desire was to make the memorial as representative as possible, and that it should include as many signatures as possible. The gentleman informed me that it had been intrusted to a lady writer to obtain signatures, and had been mislaid for a time. It has now, however, come to hand again, and I hope to have it in my possession to-morrow. This gentleman read of the introduction of the Copyright Bill when he was in Brisbane or Sydney. He came down to Melbourne about it, and was disappointed to find that it did not touch any of the grievances which he sought to have remedied. I told him that I did not think that the Copyright Bill would be dealt with this week. By the courtesy of the Minister, I had been in consultation with some of the officers of the Government in connexion with it, and I understood that the subject would not be gone into properly until the Attorney-General returned to Melbourne. I was under the impression that the measure would not be proceeded with for a little while, and that ample opportunities would be given for a sufficient and satisfactory amendment of the law, which would substantially remedy existing Fr,evances, as well as those which are possible contingencies. I hope the Minister will raise no objection to my moving the insertion of a clause1a, if that would be in order, after the Chairman has called on clause 2, to give effect to what I have already expressed. If the honorable senator cannot see his way to do that, I would ask that he should, at any rate, defer the consideration of this Bill in Committee for a little time. It might he dealt with this week, or next week. There is no necessity for a long discussion on the matter. I can assure the Vice-President of the Executive Council that I am as anxious as he, or any of his colleagues, that our Copyright Act should retain the reputation it has of being legislation of a somewhat model character, advanced, and meeting all the necessities of the time. If there is no objection to my following that course, I am prepared, if in order, to move the insertion of a new clause1a.
– There is a difficulty about adopting that course since clause 2 has been called. The honorable senator might move the insertion of his proposed new clause after clause 2, with an understanding that later it would be put into its proper place. Another way out of the difficulty would be to deal with the matter on a recommittal of the Bill.
– I am certain that Senator Keating knows very well that I have every sympathy with him in the work he is endeavouring to do. I realize, however, the difficultyof his moving such an amendment as he suggests at this stage when clause 2 is before the Committee.
– Clause 2 has been before the Committee on two sittings.
– That is so. 1 do not see how Senator Keating could introduce his amendment after clause 2. 1 em prepared to go on with the Bill as it stands. I will consult the AttorneyGeneral to-morrow, and will give Senator Keating an opportunity to have an amendment, which he is anxious to see embodied in it, brought before honorable senators again. I am prepared to do all I can in connexion with legislation of this kind, to assist every member of the Senate to bring before honorable senators any proposals whichmay be considered to be in the interests of authors and artists, not only in Australia, but all over the world. If what I have suggested would satisfy Senator Keating for the present, we might be able to make some progress. I have no desire to keep honorable senators late to-night, and Senator Keating can accept my assurance that I will assist him in every way to carry out his intention, if what he proposes meets with the approval of the Attorney-General’s Department.
– Is it proposed to put clause 2 to the Committee as one clause, or to put the proposed new section separately ?
– If we consider the first two lines of the clause first, and, by agreeing to them, repeal Part VI. of the principal Act, we shall have made some progress.
– I join in Senator Keating’s request. Apart from the honorable senator’s professional knowledge of the subject, he is possessed of knowledge as an exMinister, who was charged with the passing of a Copyright Bill through the Senate. The honorable senator is informed as to the policy and intention of measures of this kind. We have not had a great deal of time to consider the matter, and the more Senator Keating contrasts the legislation of the past, in connexion with copyright, and the evident intention of this Bill, the more clear it seems to be that his request should be granted. I hope, in the circumstances, that the Vice-President of the Executive Council will not attempt to proceed with the measure to-night beyond clause 2.
– I do not propose to ask the Committee to pass the whole of clause 2 to-night.
Introductory paragraph agreed to.
Proposed new section 62 - “ (1.) Subject to this Act, copyright and performing right shall subsist under this Act in literary, musical, dramatic, or artistic works (as the case requires) first published, performed, or produced in any of the following countries : -
. -I direct the attention of the Committee to the far-reaching consequences of this proposed new section, This is one of the extensions to which I referred. Part VI. of the original Art simply provided that -
Under that provision, it was obligatory on persons who wished to take advantage of our international copyright provision and our protection of State copyright to register. But, so far as copyrights acquired locally, or from production in Australia, were concerned, registration was only permissive ; it was not compulsory. What is to be the position in the future? Are we to impose compulsory registration upon local copyrights, or is it to be permissive registration upon local copyrights and international copyrights? This is a matter about which we should be clear before we pass this proposed new section. Formerly, if any one’s copyright was infringed, and he sought to obtain damages ox an injunction, he had to register ; but his right to damages or to an injunction was not based upon registration, nor did it date from the date of registration. But, in order to enforce his rights by judicial process, he had to register. With regard to international and pre-existing State copyrights, registration was absolutely essential. It was the root of Australian copyright. Now, without saying a word about registration in this clause, it is proposed to recognise international and State copyright wherever there is reciprocal recognition. It is abundantly clear that there will need to be somepro- vision in this Bill to harmonize the conditions as to registration. 1 hope that position will be made quite clear.
Proposed new section agreed to.
Motion (by Senator McGregor) . proposed -
That the Senate do now adjourn.
.- On Thursday last, the Vice-President of the Executive Council was good enough to say that he would lay on the table of the Senate certain correspondence whichhas taken place between various State Governments and the Commonwealth Government in regard to the gauge of the Kalgoorlie to Port Augusta railway. I would like to ask if that has been done?
– Several papers on the subject have been laid on the table ; but, as I will be moving the second reading of the Bill, I shall make inquiries on the subject Question resolved in the affirmative.
Senate adjourned at 9.56 p.m.
Cite as: Australia, Senate, Debates, 18 October 1911, viewed 22 October 2017, <http://historichansard.net/senate/1911/19111018_SENATE_4_61/>.