4th Parliament · 3rd Session
The President took the chair at 3 p.m., and read prayers.
Reward for Gold-field Discovery : Appointment of Mining Inspector.
– Seeing that the Government have decided to offer a reward for the discovery of phosphates in the Northern Territory, I wish to ask the Minister representing the Minister of External Affairs, whether they will also offer a reward for the discovery of a payable gold or mineral field in accordance with the resolution of the Senate?
-I have heard nothing about the offer of a reward for the discovery of phosphates in the Northern Territory.
-It has been mentioned in the press.
-The question of offering a reward for the discovery of gold will receive consideration.
-I wish to ask the Vice-President of the Executive Council, as representing the Minister of External Affairs, whether the appointment of Mr. C. T. Oliver as mining inspector and assistant Government Geologist to the Northern Territory was the result of a call for applications for appointment to the position, or was he merely selected without other persons having an opportunity of applying ?
-I understand that the appointment was the result of a call for applications, but if there is any doubt about the matter the honorable senator might give notice of a question, and I shall get the information to-morrow.
-Is the VicePresident of the Executive Council now in a position to reply to a question I asked some time ago as to the number of warrants which had been issued in connexion with the Old-age Pensions Act?
-I have been supplied with the following answer -
In continuation of the reply furnished on the 7th of November,1912, it has now been ascertained that the number of warrants issued, under section 43 of the Invalid and Old-age Pensions
Act, as regards pensions, during the last two financial years was : -
– With reference to his answer of the 22nd instant, as to the negotiations regarding the absorption or amalgamation of the State Savings Banks, will the Vice-President of the Executive Council inform the Senate whether such negotiations were undertaken, not merely with the approval, but at the instance of the Government, or whether they were undertaken by the Governor of the Commonwealth Bank on his own responsibility ?
– The negotiations were undertaken by the Governor of the Commonwealth Bank with the approval of the Government.
-Mr. President, I again direct your attention to the fact that that is not an answer to my question. I asked specifically - and if the Minister does not appreciate the point, I will repeat it - whether the negotiations were undertaken, not merely with the approval of the Government, but at the instigation of the Government?
– I have already answered that question ; they were undertaken not at the instigation, but with the approval, of the Government.
-That is all I want to know.
-an the Minister representing the Minister of Home Affairs give the Senate any idea as to when the promised report as to the inquiry into the alleged discrepancy between the electoral rolls and the statistics of New South Wales and Tasmania may be expected ?
-On Friday last I received from the Home Affairs Department a letter stating that the Chief Electoral Officer had recently inquired into the method by which the Commonwealth roll had been compiled, that he had ascertained that it was compiled by the police, who, for a number of years had been specially trained to this work, and that; the investigation led him to believe that the Commonwealth roll was substantially correct. The letter also stated that the conference between the State Statisticians and the Commonwealth Statistician as to the discrepancy in the population returns had not yet com- ‘ pleted its inquiry, but that it was believed that the discrepancy arose from the faulty method of checking the migration by railway, and that a further report would be forwarded to me in respect of that matter when the conference had completed its labours.
-Arising out of the answer, is there any means by which the various electoral officers are able to compare their rolls? Perhaps I may be permitted to explain that my wife has been threatened with a fine of£2 if she does not put her name on a Queensland roll, when as a matter of fact she is already enrolled in Victoria. I should like to ask the Government whether they are seeing that the rolls are properly compared.
– The honorable senator has asked a general question and a specific question. I should like him to give notice of the questions.
-Very good. I shall think the matter out and give notice.
MINISTERS laid upon the table the following papers : -
Defence Act1903-1912. -Regulations amended. &c. (Provisional) -
Universal Training. -Statutory Rules 1912, No. 233.
Military Forces - Financial and Allowance. - Statutory Rules 1912, No. 220.
Naval Defence Act 1910-1911. Regulations (Provisional) forH.M.A. Training ship Tingira. -Statutory Rules 1912, No. 221.
Federal Capital City : Report of the Board appointed to investigate and report as to the suitability of certain Designs for adoption in connexion with lay-out.
Lighting of the South Coast of Australia (South Australia), Cape Northumberland to the Great Australian Bight. -Preliminary Report, with Recommendations as to Existing and Additional Lights, by Commander C. R. W.Brewis, R.N., dated October, 1912.
The Clerk laid upon the table the following return : -
Return to Order of the Senate of 2nd August, 1912-
Old-age Pensioners - Destitution and Mortality amongst.
asked the Minister representing the Minister of External Affairs, upon notice-
-The answers to the questions are -
-Arising out of the answer, will the Minister ask the High Commissioner, by cablegram, if he has any knowledge of how the information came into the hands of the Chancellor of the Exchequer ?
– It is not customary to do these things. All this information is embodied in papers which have been laid upon the table of both Houses of this Parliament. I would point out to Senator St. Ledger that Mr. Lloyd George is a Liberal, and that if he is deficient of any information it ought to be supplied by the leaders of the Liberal party.
– Arising out of the answer, will the Vice-President of the Executive Council consult the Prime Minister upon the desirability of asking, through the High Commissioner, the Chancellor of the Exchequer in the Imperial Parliament where and how he derived the information which was reported in the cablegram on Friday last?
– As the information is substantially correct, I am not going to have any consultations about the matter with anybody.
asked the Minister representing the Minister of Trade and Customs, upon notice -
What are the reasons why the Lighthouses Act 1911, assented to on the22nd day of December, 1911, has not been proclaimed and brought into force ?
– The answer to the honorable senator’s question is as follows: -
Before proclaiming the Act, it was found indispensably necessary to have a complete investigation of the condition and suitability of existing lights, the requirements as to coast lighting generally, and expert report as to what lights may properly be taken over by the Commonwealth. This is in progress, and is nearing completion.
asked the VicePresident of the Executive Council, upon notice -
Tasmania has raised the exemption and reduced the rate of income tax since the special grant to that State was passed by the Commonwealth Parliament?
-I have to say, in answer to the honorable senator’s question, that the Government have no official information with respect to the matter referred to. In answer to the second question, I have to say that it is not customary for one Government to criticise another; but it would seem to me to be poor statesmanship to relieve the wealthier citizens of any State of taxation on account of any grant such as the one referred to.
– Is the honorable senator speaking personally, or on behalf of the Government ?
-I am speaking personally.
– Arising out of the answer to the question, I wish to ask whether the Vice-President of the Executive Council is aware that the Government of Tasmania have outlined a scheme by which certain developmental works which are stated to have been held up for a certain number of years, shall be carried out in that State out of the Federal grant?
-I am not aware of anything of that kind; and it would be more appropriate for the honorable senator to ask that question of Senator Givens.
-Also arising out of the answer given to Senator Given’s questions, I wish to ask the Vice-President of the Executive Council, and, incidentally, of the President, by what authority or par liamentary practice the honorable senator, when asked a question as Vice-President of the Executive Council, and as a member of the Government, chooses to answer it personally, disclaiming at the same time that he answers on behalf of the Government?
– Circumstances a.rising in connexion with a question, and the manner in which it is framed, sometimes render necessary an immediate reply. Consequently, in this case I took it upon myself to reply as I have done.
asked the Minis ter of Defence, upon notice -
Royal Australian Navy issued under the authority of the Defence Department?
– The answers to the questions are -
The cost was£150.
The booklet was printed by the Government Printer, Melbourne.
. -I move -
That the Ordinance No. 8 of1912 relating to Crown lands in the Northern Territory be disagreed with.
In submitting this motion, I should like to remind honorable senators of the circumstances surrounding a somewhat similar motion which I submitted to the Senatea little while ago. It will be remembered that, althoughthere was some hostile criticism from the ranks of the Government supporters, the Senate decided, so far as its vote could do so, to inflict the original Ordinance upon the Northern Territory. Owing to an exhibition of a little greater independence elsewhere, we have been afforded a further opportunity to consider what is, to all intents and purposes, a land Act for that new Province. When the Vice-President of the Executive Council replied to my speech on the previous motion, he expressed this opinion, to use his own words-
I do not think that any human ingenuity could devise anything which would conduce more to the possibility of settlement than will this Ordinance.
I refer to that for this reason : I point out that the Senate accepted the Vice-President of the Executive Council and the Government as its guide in this regard, only to find that they have abandoned . the original Ordinance, admitting its imperfections, and now come down with a new one. In the circumstances, I am justified in asking honorable senators, seeing that the Government have abandoned their party in the matter, and have made this an open question, to, on this occasion, disregard the party element, and address themselves to the merits or demerits of the provisions of the new Ordinance, to which I direct their attention. I should like to repeat the appeal which I previously made - that this is a matter which ought not, in any circumstances, to be made the subject of a purely party vote. We all have to recognise the tremendous effects for good or evil which must flow from a correct or faulty start in the administration of the Northern Territory. I point out, as evidence of my bona fides in the matter, that I recently invited the Vice-President of the Executive Council to relieve me of the responsibility of taking action by submitting the new Ordinance in such a way that we might debate it in some form other than that which I have had to choose. I recognise that, to some extent, my motion is a challenge to the Government. But I am not responsible for that. 1 not only invited the VicePresident of the Executive Council to bring the matter forward in such a way that we could discuss it without reference to party attitude, but I repeat the invitation now. I ask him to consider the advisability, when I have concluded my speech”, of moving an amendment upon the motion to refer the Ordinance to a Committee of the whole, in order that we may deal with each specific provision, and submit such amendments as will enable a report to be made to the Senate which will place the Government in possession of the mind of honorable senators on the matter. That is a practical proposal, and would give honorable senators the best opportunity they could have to consider the Ordinance thoroughly, and, at the same time, to record no vote which would have any purely party significance. I trust the VicePresident of the Executive Council will accept that suggestion. In the meantime I repeat that this Ordinance is particularly a matter requiring consideration in Committee. It contains between fifty and sixty separate clauses, and a number of schedules, each one of which might properly be the subject of debate, and the Ordinance can really only be properly discussed in Committee. One is surprised, after the rebuff which the Government received in this matter, that they did not learn from experience, and decide to proceed by Bill. I do not suppose that honorable senators for one moment believed, when they agreed to the passing of the Northern Territory Administration^ Act, giving power to issue Ordinances, that the power would be interpreted as giving the Government the right to construct a Land Act for the Northern Territory. Quite recently we dealt in the form of a Bill with a proposal for a railway survey in the Territory, a matter which was absolutely insignificant when compared with the matters provided for in this Ordinance. We have here the foundation of the land policy of the Northern Territory, and, so far as the Government are concerned, they have not merely such a contemptuous regard for Parliament, but for their own followers, as to legislate behind the doors of the Minister’s office rather than submit so important a matter for the criticism and approval of Parliament. As showing the desirability of this view, I might remind the Vice-President of the Executive Council that in the previous discussion of this subject he said in reply to the suggestion then made that the Government ought to proceed by Bill -
After having a little experience, no doubt a Land Bill will be brought in.
If it is thought desirable that a Land Bill should ultimately take the place of this Land Ordinance, why should it not take its place in the first instance? It does seem to me to be altogether a misuse of the power to issue Ordinances for the Government to take upon themselves the legislative work of constructing a Land Act for the Northern Territory.
I propose to deal with the various clauses of this Ordinance very much as though we were in Committee. I do not intend to raise the question of leasehold versus freehold. The arguments I have to use will be rather as to details of the Ordinance which I consider important. While I recognise that I shall be to some extent at a disadvantage in doing this, for the convenience of honorable senators who will pay me the compliment of following me, I propose to take the Ordinance clause by clause, and to address my criticisms to the various clauses in the order in which they appeared in the Ordinance. The first to which I direct attention is clause 6. I do not know that I could refer to any clause in the Ordinance which would more clearly demonstrate my statement that the discussion of the matter should take place in Committee. The clause provides -
That is a very necessary provision, but a complication arises in the next sub-clause, which provides that the sub-clause which I have just read shall not affect -
I wish now to know where we stand. What is the meaning of that sub-clause? We have first of all a statement that leases may be granted subject to this Ordinance, but it is provided that this shall not affect ‘ the granting of any lease in pursuance of any Ordinance.”
-In pursuance of any covenant already entered into.
– No; that is dealt with in paragraph a of sub-clause 2 -
The granting of any land in pursuance of any agreement or right in existence at the commencement of this Ordinance.
But paragraph c reads - the granting of any lease in pursuance of any Ordinance.
But we have only just said that leases are only to be granted under this Ordinance. I venture to suggest that there has been some confusion between paragraphs c and e. Paragraph d reads -
The granting of any lease in pursuance of any Act relating to mining or dredging for metals, minerals, or precious stones.
– There may have been timber leases let, or something of that kind.
– No; I am inclined to believe that it was intended that paragraphs c and d should form parts of one paragraph, and that the last words of paragraph d qualify paragraph c, and the two paragraphs should be made to read - the granting of any lease in pursuance of any Ordinance or any Act relating to mining or dredging for metals, minerals, or precious stones.
It isa matter for the draughtsman to consider, but I point out that if the last words I have read qualify paragraphs c as well as paragraph d, then they also qualify paragraphs a and b, and are clearly out of place. If they are not intended to qualify paragraph c, they nullify subclause1 of the clause.
– In any event, what is the use of paragraph d?
– I am only showing that the clause as it stands is an absurdity. There are many provisions contained in this Ordinance which no doubt were excellent provisions in the Act of which they formerly formed a part. It would appear that the sections of Land Acts in force in the various States have been brought together by scissors-and-paste business to form this Land Ordinance, with a result that is absolutely grotesque and dangerous. I shall show how great the danger is later on. I come now to clause 7 of the Ordinance. It reads -
The Classification Board shall classify Crown lands in accordance with this Ordinance.
I want to know whether that classification is to be perfunctory, or whether it is to be a real one. If it is to be a real classification, the officers are to undertake a series of examinations of the Northern Territory, which means delaying settlement for very many years to come. To talk of classifying that Territory, with its enormous area, much of which is unexplored - as the VicePresident of the Executive Council admitted recently - means the work of ten or fifteen years.
– Would it not mean classifying as far back as possible?
– The honorable senator is supposing that the officers will go out to the back-blocks of the Territory first of all.
-The Vice-President of the Executive Council can attempt to make this matter as grotesque as he likes when he is speaking to an audience that does not know much of the practical side of land matters. He may be successful then. But I am asking a simple question in the face of many who do know something about the matter. Is it intended that this classification shall be merely a perfunctory one, the drawing of certain lines upon a map; or is it intended to be, as understood in the States, a classification according to the qualities of the land ? That it is intended to be of a perfunctory character is shown by reference to clause 9 of the Ordinance, which provides that -
Lands under lease granted in pursuance of this Ordinance shall be subject to reclassification, but such re-classification shall not come into force until the re-appraisement of the rental of the land included in the lease has come into force, and shall not affect the lease as regards the area of the land which may be included therein.
It is quite evident that, having decided that the land .shall be classified, the impossibility of classifying it properly has been recognised. It is only possible to classify it in the loosest possible way. Therefore, power is taken to reclassify later on as more is known of the country and its conditions are better understood. But while in theory that may sound all right, if the classification is carried out, it is going to destroy the terms and conditions under which land is being granted. Under clause 9 this classification is not to come into force “ until the re-appraisement of the rental of the land “ comes into force. Therefore, it cannot affect the rental. It is not to affect “ the lease as regards the area of the land.” Say that a lessee takes up an area of land under the original classification with the knowledge that his rental cannot be disturbed until the period of reappraisement arrives. That is all right. That is what reclassification cannot do. But let us see what it can do.
– There is no re-appraisement of pastoral land.
– As regards classes 2 and 3, pastoral land, there is to be a reappraisement at the end of twenty-one years. I want to show the effect of the reclassification. Let us suppose that some one takes up a block of pastoral land -in classes 2 and 3 with a forty-two years’ lease. This Board comes along a little later on and decides to reclassify the land. Suppose that it puts the land in class 1. The result is that immediately the lease falls to twenty-one years. The holder took up the land on the understanding that it was for forty-two years. Yet, by reason of the re-appraisement, he immediately finds that the most valuable half of the term of his lease is taken away. I say that that introduces an element of uncertainty which will simply prohibit men from going into that part of Australia. They will not go there, lay out their money, and spend the best part of their lives with the prospect staring them in the face that they are liable at any time to have a part of their lease taken away from them on the arbitrary determination of a Government official.
– Not at any time.
– Any man who goes to the Northern Territory under this Ordinance goes there with the knowledge that at any moment his holding is at the disposal, not merely of officials, but of one Government official.
– The same applies to freehold in the States already.
– It does not apply to freehold anywhere, nor to leasehold in any of the States. The Vice-President of the Executive Council will not gain anything by trying to prejudice those who are in favour of leasehold as against freehold. These restrictions do not find a counterpart in any law in any State of Australia. Not only does this matter of reclassification affect pastoral leases, but it also affects the smaller holdings. A man can apply for and obtain a holding for mixed farming. He may obtain an area of 38,400 acres, upon which his primary industry would be grazing. He takes it up, probably, with the condition that some small proportion of it - 1 or 2 per cent, at the outside - will be cultivated. But no sooner does he get that land than a Government officer corneaalong and decides to reclassify it in such a way that, instead of having to cultivate 200 or 300 acres, the holder will have to cultivate the major portion of the area. Probably the Government will turn round and say that if the land is suitable for cultivation purposes, why should it not be devoted to them? That is all very well, but look at the position in which the holder will be placed. At any moment his land may be reclassified, and the effect of the reclassification operates immediately. So that a man taking up an area under those conditions may suddenly find himself faced with the position that the whole of his prospects are destroyed, that the occupation for which he has qualified is changed, and that he is called upon to cultivate an enormous area, which he is quite incapable of cultivating, and which, in fact, no man could cultivate unless possessed of a great amount of capital. The result would be that the holder would have no alternative but to vacate the land.
I come back now to clause 8, which deals with areas. These areas have been considerably reduced with regard to pastoral land since we discussed the matter before. In connexion with this, I should like to point out thai it is a cause of very great Satisfaction, not merely to honorable members on this side of the Chamber, but also, I should think, ro honorable senators opposite, in spite of their votes, that we have been able, in consequence of the protest raised before - more particularly in another Chamber - to save Australia and the Northern Territory from the tremendous evil which would have been inflicted had perpetual leases been granted for these enormous pastoral areas. The areas have been considerably reduced. Not that the area held is of much importance, providing the State retains in its hands the :right to recover possession at a later period. For many years to come we need nol: be alarmed at the size of the holdings in the Territory. A much moTe serious cause for alarm would be the prospect of its remaining without any occupation at all. I am not particularly concerned as to the extent of land which will be in one man’s hands, always providing that he holds it only by a terminable lease. But when you come to holdings in regard to agricultural lands, another set of arguments presents itself. Holdings for pastoral-lease purposes are taken for temporary occupation only. But when you are dealing wilh agricultural land, I want to ask honorable senators whether they think it is right to provide for permanent holdings to the extent of 38,400 acres?, I admit that the area has been reduced from 64,000 acres, but to grant 38,400 acres under the title of mixed farming and grazing land is an absurdity on the face of it. Any one who takes up 34,000 acres is not going to employ any large proportion of it for farming purposes. Nowhere in Australia is it usual for a man with 38,000 acres to devote any considerable portion of it to farming. It is not going to be so in the Northern Territory. If you find a man with such an area, partly suitable for farming, and a portion of it is farmed, it is under the system known as sharefarming. That is to say, the holder has become a landlord. But, generally speaking, a. man with such a holding has a sufficient area by which he can make a living by grazing; and, under such circumstances, he will confine himself to grazing, and neglect the plough. Honorable senators, by a majority, have recently passed a Bill for the imposition of a land tax, one of the avowed objects of which was to break up big holdings. What was the value of the holdings which they desired to break up? It was holdings above .£5,000 in value. It is very poor farming land that is not worth or £4 an acre. At an acre, 1,700 acres of this land would exceed that value. Yet the party opposite come forward with a proposal to grant areas in perpetuity to the extent of 38,400 acres, land which, if granted under terminable lease, would come back to the Crown. Do honorable senators understand what 38,000 acres mean ? It means no less than 60 square miles of country. This is land, which, if in any decent district, ought to be capable of supporting sixty homes, and not merely one. To put it in another way, it would take 32 miles to go round the boundary of this block, and yet these blocks are ultimately designed for the permanent settlers of this country. I cannot help but think that this matter has slipped in here, as many other provisions have done, without a due regard for the future, but merely looking to the present. It has been recognised by those who drafted this Ordinance that for the present we have to offer inducements to men to go to the Northern Territory. The people who can get small holdings here will not go to the Northern Territory for small holdings there. I admit that. I think that in dealing with the Northern Territory, the correct course is to grant blocks as reasonably large as will be attractive, but to make a provision that, at the end of a long lease - I do not care how long - these blocks shall revert to the Crown, except that the holders shall have a preferental right to secure for permanent occupation areas out of them.
– You are dealing with agricultural lands.
– You are not dealing with agricultural lands, but with pastoral.
– I am dealing with, what are called mixed farming and grazing lands, and when it is proposed to grant blocks of 38,000 acres in perpetuity of land that will some day be fit for farming, I say that you are again creating immense holdings, such as it has been the whole trend of legislation in the settled States to destroy. I have just obtained a return from the State Statistician showing that there are in Australia to-day 20,750,000 acres of land held in just such holdings as these, so far as size is concerned, that is, areas ranging from 10,000 to 15,000 acres, from 15,000 to 20,000 acres, and from 20,000 acres to 50,000 acres, and held by 1,065 people. These are figures that have been used to show that Australia is suffering from a land monopoly, and also as a justification for the imposition of a land tax, which we are told has been the cause of the dismemberment and breaking up of the large estates. Yet we have a proposition to create such holdings again. Apart from the contradiction in the attitude of the Government in this regard, may I ask what is the advantage to be gained? What I submit to the Government as the correct course to adopt in dealing with these lands is simply to grant leases for forty or fifty years, giving the lessees, at the end of that time, a preferential right to take a portion of them under perpetual lease, or, as I should prefer - freehold. If they did that, the immediate attraction of a large area would be there, but, in course of time, as the land became more valuable, it would come back to Parliament, who would deal with it as it liked, in the interests of the people.
Now let me pass on to another clause. I come to clause T7, sub-section e. This deals with leases generally, not merely with larger pastoral holdings. It provides that each lease shall contain, among other things - a covenant by the lessee that he will use the land only for the purposes for which it is leased.
There were in the original Ordinance two clauses, numbers 23 and 24, which specifically prohibited a pastoral lessee from cultivating any portion of his land except with the permission of the Administrator. Now there was some criticism- directed to that proposition, and I myself asked what harm there could be in any lessee so disposed putting his plough into a part of his land. Those two clauses distinctly prohibited the pastoralist from cultivating his land. I was in hopes that that criticism had told its tale, and that the Government were now prepared to permit any pastoralist to use his land, not merely for an inferior, but for a higher, purpose. But while clauses 23 and 24 directly prohibiting the use of the land have disappeared, this provision is made in the covenant itself. I would ask whether that is an oversight. It does seem to me that, clauses 23 and 24 being struck out, this provision in the covenant lease has been overlooked. In clause 16 there is a further provision that the lessee shall use the land only for the purpose for which it is leased. I do not want to labour the question, but it does seem to me that, as that provision specifically applies to pastoral leases, there can be no earthly objection to saying to any pastoralist: “ If you want to use your land so as to turn it from grazing to cultivation, you are at liberty to do so.” One would think it an offence in this country for ‘the grazier to become a cultivator. Under the Ordinance a pastoralist who is inclined to experiment, in order to ascertain whether farming will be profitable or not, is compelled to suffer the annoyance and delay of making an application to the Administrator at Port Darwin. Let me point out the different way in which the same’ class of lease is dealt with in South Australia. Each of these Ordinances professes to be copied from the South Australian Act; but in the copying many important details have been left out, and other features introduced, the result being that, on the whole, there is not only no improve ment, but a retrogression, as compared with South Australia’s effort. The South Australian Act provides -
No lease granted under this Act shall authorize the lessee to carry on mining operations of any description whatever upon the lease or any part thereof.
That is a prohibition we can all understand and approve; but it goes on to say -
But the lessee shall be at liberty to utilize the surface of the land, or any part thereof, for pastoral purposes, or for any purpose, he thinks fit.
I would urge upon the Government, seeing that they have struck out of the original Ordinance clauses 23 and 24, that they should also strike out the condition in the covenant lease which restrains a pastoralist from utilizing his land for a higher purpose than grazing. I shall now deal with clause 17, sub-clause i. This comes under a general provision that the lease shall contain, among other things - any other reservations, covenants, conditions, and provisions which are prescribed or which are specified in the Gazette notice that the lands are available for leasing -
Up to that point I find no objection to the sub-clause, because the lessee has an opportunity of knowing the conditions under which the land is to be leased, but I object to the following words: - or which are considered by the Classification Board to be necessary under the circumstances of any particular case.
Those words mean that the lessee is not only to be bound by any reservations which are prescribed in the Gazette notice, but also by any which the Classification Board might consider necessary, after they have advertised the land for leasing. That would be unjust, and would prevent people from applying for these lands. Any conditions that it is thought desirable to attach to any lease ought to be gazetted at the time that the land is gazetted as available for leasing. Unless the land is withdrawn in the meantime, there ought to be no attempt made by officials to superimpose conditions of which the lessee had no prior notice.
– The lessee would be a slave to the officials.
– Either we shall have to make some business arrangement in this Ordinance, or, if we do not, we shall create in the Northern Territory exactly that atmosphere and procedure which have caused nearly every Lands Department in the country to be the centre of some scandal or other.
I will now turn to clause 19. Here is a mistake; it is an incongruity, anyhow, which arises from the fact that there are four sub-clauses, and all of them were originally dovetailed one into the other. Because, however, of the Government having abandoned perpetual leases for pastoral holdings, it was necessary to alter the first of these sub-clauses. But for all that, no consequential amendment was made in numbers 2, 3, and 4, and the effect is that they are not now in harmony. Let me explain. The first sub-section originally read -
The lessee under a perpetual lease may, subject to the consent of the Administrator, assign, transfer, or sub-let the land included in the lease or any portion of it.
Honorable senators will .recollect that under that first Ordinance all leases were to be perpetual, and, therefore, the first subclause really meant that all leases in the Northern Territory were subject to clause 19. But we have now decided to have two classes of lease, the terminable and the perpetual. The first sub-clause has been altered by the deletion of the word “ perpetual,” and the substitution of the words 4 ‘ a lease granted in pursuance of this Ordinance.” The words taken out of subclause 1 were not taken out of sub-clause 2 , and the effect of it now is that the perpetual lessee may lease his land without consent up to a period of two years, and that a pastoral lessee may not. Originally they were placed in the same position, both having’ the right to lease up to two years without obtaining permission. The effect of this is that the pastoral lessee cannot lease his land even for a single day, unless he obtains permission. People may say that there is no difficulty in obtaining permission. If there is one thing more necessary than another to a pastoralist when feed becomes scarce, and he is confronted with a drought, or the appearance of one, it is the rapidity with which he has to act. In this particular case there ought to be no restriction placed upon a pastoralist who wants to obtain relief country any more than upon those holding smaller blocks. A pastoralist naturally leaves to the last moment - so far as he can safely do so - the question of securing country, hoping every day that rain will quickly come. He cannot go round and say to a lessee, “ I want to rent your country for relief, but I cannot make a bargain until I know whether the Administrator will permit me. “ He ought to be allowed reasonable room in which to turn round and do the best he can for his stock. I am quite with the Government if it seeks to prevent, under the pretext of subletting, any man from obtaining an unduly large area; but surely a pastoralist might be allowed fo rent country for the same period as other lessees. If a term of two years is thought to be too long, let a pastoralist have the option of renting country for six months to relieve himself when. his stock is suffering under the pressure of a drought.
I come now to clauses 20 and 25, which are brought in because of the introduction of the terminable lease in place of the perpetual lease in regard to pastoral country. A very curious error has crept in, and that is in attempting to deal with too many things in the one clause. The purpose of clause 20 was to prevent any individual from acquiring an undue area of land by transfer. It therefore sets out - (i.).The Administrator shall not consent to any assignment, transfer, or sub-lease of any pastoral or agricultural lease granted in pursuance of this Ordinance, except by way of mortgage only, to any person who at the time of the proposed transfer already holds under pastoral or agricultural lease any area which when added to the land included in the lease proposed to be assigned or transferred will exceed the maximum area under this Ordinance.
Shortly, it means that a man who holds a block of the maximum area prescribed by the Ordinance cannot purchase or otherwise acquire another block. In other words, there is a limit placed here to the area of land which an individual is entitled to hold ; but a peculiar position arises through the Government, having placed in here, side by side with the matter of absolute transfer, that of sub-leasing. If a small farmer, who holds12,000 acres of land for mixed farming, finds it is necessary to rent a piece of country to save the lives of his stock, under clause 20 he cannot do so, even with the consent of the Administrator, because it says that the Administrator shall not sanction the letting of one piece of Crown land to another man who already holds the maximum area in his class. ‘ I could understand a prohibition against the transfer of land to a man holding the maximum area, but I cannot understand this provision. These are two dif- . ferent things, which ought to be dealt with differently. We might gain a little inspiration from what has been done in the States. There is in most States a prohibition against the transfer of land to any one who holds a given area under certain tenures.. In New South Wales, for instance, we have adopted what is known as the home-maintenance area as the standard, and provision is made in regard to certain holdings - settlement leases, conditional purchases, and other leases - that a man who holds the maximum area shall not be entitled to acquire by purchase from anybody else another area of the same class of land. That is all right, and the object is to preventaggregation. The Crown has cut up blocks in what it regards as a convenient size, and it says to the people, “ One of the conditions under which you take land is that you shallnot, by purchase, add field to field and paddock to paddock. That is the maximum area which we will allow you to hold.” I quite agree with that provision so far as it applies to absolute transfers, but to say that because I hold the maximum area I am not to be at liberty to rent in time of drought or emergency another paddock to find grass for my starving stock is either an absurdity, if intended, or a very serious mistake which has crept in through an oversight.
– There is nothing to prevent you letting out your stock on agistment.
– It is not a question of agistment.
– You are talking about starving stock.
– I am. If the honorable senator means that it is possible to devise a means by which a man can drive a coach-and-four through this Ordinance, quite agree with him, but I do not know that it is the work of aLegislature to pass an Ordinance knowing that it is creating such a difficulty that only by subterfuge people can get round it, and then to point it out. There is a difference between taking in stock on agistment and leasing: country.
– You are only referring; to a temporary difficulty just now.
-I am. I have very often been in this position. I was prepared to lease a portion of my holding, but I would not take in stock on agistment, nor would the man who wanted my grass put his stock in on agistment. What he wanted was the right to rent a paddock, and to put. in his men to supervise it and work the stock. If a man puts stock into my paddock on agistment, he hands them over tome, and I look after them. But this Ordinance, I take it, is not intended to provide for the agistment of a poddy cow or a pet pony.
-It is quite a common? practice in time of drought to let stock out on agistment - at so much per hundred’ sheep.
– The honorable senator may be acquainted with a place where they take sheep in at so much a hundred, but I venture to say that, generally speaking, they would be taken in at so much a thousand. I have never heard before of sheep being taken in by the hundred.
– There are big men in your State.
-There are, in Western Australia, some pastoralists who cannot be small men. What I wish to point out to the honorable senator is that they do not take the sheep in at so much a thousand, but rent a paddock. For instance, an owner will say, “ There is the paddock, which I estimate will run 5,000 sheep.I want £50 a month for the paddock.”
– Which they can do under this Ordinance.
-Will the honorable senator tell me where that provision is made? A man who holds the maximum area cannot rent, even with the permission of the Administrator, because clause 20 says that the latter shall not sanction such sub-leases. I ask the honorable senator to show me a clause which will undo what clause 20 says is to be the law.
– Surely a private arrangement can be made by way of renting a paddock or a number of paddocks, with out troubling the Department.
– I think it ought to he possible.
– I think it is.
– If my honorable friend is right and I am wrong, then the argument falls to the ground. On the other hand, his interjection shows clearly that he recognises that if I am right, something ought to be done to correct this defect. Clause 19 says that no lessee may lease his country without the sanction of the Administrator, and then clause 20 says that no other lessee - no lessee who holds the maximum area provided by the Ordinance - shall lease any other man’s country. Therefore, if a man has country which he wants to lease, he cannot do it even with permission. I feel quite certain that it was never intended to leave the Administrator without an option. I believe that what was intended was that lessees of all kinds should have the right to sublet, and, of course, to lease, with the sanction of the Administrator. But the difficulty has arisen by striking “ perpetual “ out of sub-clause 1 of clause 19, and not making consequential amendments in the following three sub-clauses; and it occurs in regard to clause 20 in bracketing transfers with sub-leases.
– If the word “ perpetual “ were left out of subclause 2 of clause 19, that would get over the difficulty.
– Exactly. So long as the Ordinance remains as it is, if a man holds the maximum area of any one of these classes, although his stock may be dying, and although the Administrator may be willing to sanction a lease, he will have no freedom. That is strictly prohibitive, and the lessee will have to stand by and either see his stock die, or do what I think he would probably do - tell the Administrator and the Ordinance to go hang, and save his stock.
– Under clause 49 -
The Administrator or any person authorized by him may, under and subject to the regulations, grant licences to persons to graze stock -
– Where is the man to graze his stock? There is no grazing stock on land which is not under lease.
– On Crown lands.
– I am not dealing with that. He can give me the right to graze stock on lands nol under lease ; but that does not meet the case at all. If the honorable senator will guarantee that whenever I require relief country he will always have an area of Crown lands unoccupied, with grass and water, my difficulty will disappear.
– No; because there might not be enough Crown lands to go round.
– It will be many years before that position can arise.
– The honorable senator might have Crown lands of that kind available; but at a time of drought it is not likely that there will be Crown lands with water, or, if there are, the chance is that it will be impossible to get there with stock..
– This is only a temporary expedient, anyhow.
– The honorable senator never made a truer remark in his life, because the Ordinance will break down; it will be impossible to work it. Because he recognises, from the fulness of his knowledge, the temporary character of the Ordinance, .that is no reason why, when there is an obvious difficulty, even though its life is to be short, we should not reduce that difficulty as far as possible. Suppose that my honorable friend is quite correct, and that there may be some Crown lands with both grass and water. In a time of drought there will be many lessees looking for such country. It frequently happens that when one portion of a State is devastated by drought, there have been kindly rains and thunderstorms in other parts, which have been regarded, and used, as relief country. Places which are most likely to offer relief are pastoral leases which are under occupation, where some improvements have been’ made, and water has been provided. These are naturally the lands which a pastoralist will use to graze his stock over.
– In the Northern Territory they have never known what a drought is.
– There are parts there where they have never known anything else. It is’ the chronic condition in any part of Australia with a rainfall running down to 4 or 5 inches. I am quite prepared to believe that Senator Findley did not strike a drought in the Northern Territory, because I understand that the people there are most hospitable. Any one who goes into a portion of the Territory, with its sub-tropical rainfall of 50 or 60 inches, is probably told quite correctly that they never have a drought. They have two seasons every year - a wet one, and a dry one. But when a man gets into the pastoral Country, with a rainfall running from 15 inches downwards, he will recognise quite a different state of affairs. There is no part of Australia, outside the tropical coastal portions, in which a drought does not make its appearance now and again. I hope that Senator Findley is not going to persuade himself that the greater portion of the Northern Territory having an annual rainfall below 10 inches, is superior country to that in portions of Queensland and the western division of New South Wales, with a similar rainfall. This country is light pastoral country, is productive, and serves a purpose; but .we know that drought in these areas may be regarded as a fixed condition in the sense that if it is not present this year it will be next year, and it is going to be just the same in the Northern Territory.
All these restrictions to transfers seem to me to defeat the object the Ordinance should have in view. There is only one restriction necessary in a measure of this kind, and it should be to the effect that no man holding the maximum area provided for in the Ordinance should be allowed to acquire another area. Beyond that, we should permit holders of land to sell or transfer their leases or holdings as much as they please. One provision against the aggregation of huge estates is all that is necessary. The one evil we must guard against is the tendency which would otherwise undoubtedly assert itself to add holding to holding until we should have the evil of aggregated estates that causes so much trouble now in the eastern portions of Australia.
I come now to clause 22, dealing with the same matter of transfer, and I find that it provides that where any land passes into the possession of a mortgagee he must dispose of it within three years’ time. He is given three years in which he can hold the land under the terms of his mortgage, and he is then compelled to sell under liability to forfeiture , if he does not do so. This clause probably had its origin in the Acts of several of the States. There is in the New South Wales Land Act a provision that where a man takes possession of certain lands by reason of a mortgage he is given only a limited time in which to dispose of it. The object, of course, is to prevent a mortgagee aggregating land and building up an estate, a right which the law denies to an ordinary holder. While some such provision may be necessary in this case, I submit for the consideration ot the Government that three years is far too short a term to allow the mortgagee to dispossess himself of land acquired under a mortgage. Iri New South Wales the provision is applied to lands held under settlement lease, homestead selections, and conditional selections in connexion with which there is a residential condition. Theselands are in the better and more closelysettled districts, and the mortgagee coming; into possession of one of these selections is. given three years in which to turn round and find a purchaser. But in the Northern Territory, with its liability to periods of drought, I submit that three years is not. a sufficient time to allow.
– The mortgagee may beallowed a longer period at the discretion of the Administrator.
– That is so; but Senator Lynch, will see that we are dealing, with pastoral areas, that money will be required to develop them, and that peoplewill not advance money upon pastoral areaswith all these harassing restrictions. Thehonorable senator will agree that unless, money is freely invested in the Northern” Territory, its condition at the end of the century will be about what we find it at thebeginning of the century. Nothing but the investment of money will transform theNorthern Territory from its present condition to the condition , of advanced development and settlement that we all desire tosee brought about. The conditions will bemuch the same as in the remote districtsof Queensland, the western division of NewSouth Wales, and some portions of Souths Australia. I can speak with more familiarity of the conditions existing in thewestern division of New South Wales; andi I know that it was, not long ago, quiteimpossible to sell property in that divisionfor periods running up to seven ornine years. It is only a few yearsago that that division of New South Wales was brought to such a condition that it was impossible to sell anything-; in connexion with a station but the stockthat could be walked off it. To tell a mortgagee, who is forced by foreclosure totake possession of a property in such country that he must sell within three years, is practically to tell him that he must forfeit his security. We wantto encourage people to invest money - in the Northern Territory, and we must- give those who advance money upon properties there some guarantee that if they are compelled later on to realize, they will have a reasonable opportunity to turn round and find some one to take the security off their hands.
I now come to clause 23, which is probably the most curious clause in the whole of this Ordinance. As I read it, it would prevent a son occupying a block of land left to him by his father upon the death of the latter. That, of course, was never intended. It is absurd to suppose that it was contemplated that if a father left a block of land to his son the son should be compelled to sell it to .some one else. Yet that is exactly what clause 23 means. It reads -
Where any pastoral or agricultural lease granted in pursuance of this Ordinance devolves upon any person by operation of law, the person on whom the lease devolves may (subject to the term of the lease) continue to hold the lease for a period of three years, and for such further period as the Administrator thinks fit to permit.
Let me cut out some of these words while retaining the substance of the provision. It means that where any lease devolves upon any person by operation of law - by will, for instance-
– That would not be by operation of law; but in case of insolvency, the honorable senator’s objection would apply.
– I think that the defect in the clause arises from the fact that it is taken from the New South Wales Act ; but certain words in the New South Wales provision have been omitted from this clause. The New South Wale’s section reads -
Where any agricultural lease granted in pursuance of this Act devolves upon any person ineligible to hold under this Act -
That makes all the difference. A man may be ineligible to hold a property devolving upon him because he already holds the maximum area which he is allowed to hold under the law. In such a case,_he is given a reasonable time in which to find some one to take the new property off his hands so that he may not lose the value of the property which has come to him by the operation of the law. The omission of the words “ineligible to hold under this Ordinance “ entirely alters the purpose of the clause. This clause ought surely to be limited to persons who cannot, in the ordinary course, hold the new property, and those who are eligible to hold property devolving upon them in this way should be allowed to do so.
I wish to refer now to a curious defect in sub-clause 4 of clause 23. Earlier in the Ordinance provision is made that no man shall hold more than a certain area under these leases ; but here we have a provision which destroys all that, and says that a man may hold an area which comes to him by devolution of law, without regard to the maximum area. We say in this Ordinance that no man shall hold more than a given maximum area if he applies for it originally or purchases it from the previous lessee ; but if land comes to him by devolution of law, he may, under sub-clause 4 of clause 23, hold it without regard to the maximum area. The effect is that, while a man applying originally for land, or securing a transfer from a lessee, may not hold more than 38,400 acres, if land comes to him by process of law he may hold three or four such blocks. That is not desirable; but, for that very reason, it is desirable that we should insert in this Ordinance the words which appeared in the New South Wales provision, and the omission of which from clause 22 I have drawn attention to. I do not think that any exemption should be made enabling a man to hold more than the maximum area, merely because property comes to him otherwise than by direct purchase. Suppose, under clause 23, a man came into possession of two or three maximum areas by process of law, what would happen? He may hold them in one block, but will he be able to sell them in one block, or must he, if he wishes to dispose of them, subdivide them? Whilst the transfer to him is sanctioned irrespective of the provision for the maximum area, I should like to know if it is to apply only for his lifetime? The Government should bring this provision into conformity with the provision of the New South Wales Act, to which I have already referred.
I wish to refer to a small matter arising under clause 24. As I am dealing with the Ordinance clause by clause, I do not wish to pass any of the clauses. Subclause 3 of this clause makes provision that where a tenant purchases improvements from the Crown, he shall maintain then?, in good order and tenantable repair, and shall keep them insured as prescribed until they are paid for. No one but a city theorist ever put such a provision into a land Ordinance. The idea of keeping pastoral improvements insured only needs to be. stated to insure its condemnation. The reason why the great bulk of pastoral and farming improvements are uninsured to-day is that the rates at which it is possible to insure them are prohibitive. We are dealing here with Crown improvements, which the Crown would not insure ; and yet, if a lessee comes into occupation, he is to become responsible for their value, whether thew are destroyed or not. That being so, it is his concern, and not that of the Crown, whether he insures them or not.
– Is it not possible that, in some cases, the lessee would be totally unable to pay for the improvements if they were destroyed?
– What then? Suppose the lessee was not in possession of the property and improvements, would the Crown insure them? We know that the Crown would not insure the improvements. There are many instances in which the Crown holds land’s upon which there are improvements, but it never dreams of insuring them. I do not know the insurance rates now, but a little time ago I made some inquiries in connexion with the matter, and I found that the rates for fencing ran from 30s. to 40s. per mile. That is an absolutely prohibitive and absurd premium. The answer of the insurance companies always is that the amount of this business which they would get would be so small that they are not disposed to take the risk at any lower figure. The effect upon the owner of improvements is that he declines to insure them. It is ridiculous to stipulate that these improvements should be insured. I doubt very much whether any one could insure improvements in the Northern Territory at prices even approaching the very high rates I have mentioned. What insurance company would effect an insurance upon improvements 300 or 400 miles away from Port Darwin?
– They could never find them.
– Not only that, but it would never pay to send any one out to see whether they were or whether they were not destroyed.
– They would also have to find out whether the Government approved of them before they were put on.
– I think not. Clause 24 deals only with the question of the original issue of leases, and not with the question of a re-issue when a fresh tenant comes in. It deals with lands which we may assume will be offered directly. The matter is not one of much importance, but I direct attention to it as showing the danger to which the theorist always renders us liable when he attempts to deal with matters requiring practical knowledge.
– May it not mean that it is only where improvements have been insured that the tenant is expected to continue the insurance ?
– No. I take it that the tenant can insure improvements.
– That is where he purchases a lease with improvements.
– When he comes into occupation of a piece of Crown lands upon which there are improvements. I say that that thing, as applied to this pastoral country, is an absurdity. There is no insurance company to-day that would take on such a risk. Even in Victoria the rates are so high upon pastoral improvements, outside buildings, that there are very few people who insure anything of the kind.
– Very few indeed.
– The reason is that the rates are prohibitive. The last inquiry I made showed that they ranged from 30s. to 4ps. a mile for fencing. A mile of fencing is worth somewhere about £,$0, so that the rate was between 5 and 7 per cent.
– Wire fencing?
– Yes, ordinary sixwire fencing.
– I should imagine that this was intended to apply to buildings.
– It does not say so. It applies to all improvements. It is not very material, however, for the reason that there would not be very many improvements at present. The clause only shows the want of practical knowledge that is behind these regulations.
– What protection would the Government have unless the improvements on the lease were insured?
– What .protection would the Government have over the improvements if there were no lessee ?_
– In that case the Government would have to take the risk.
– It amounts to this : if I go into possession of one of these areas in the Northern Territory, I pay the Crown a deposit. There is no greater risk of the improvements being destroyed by fire in the first year than at any other time.
– The Crown must have something to’ levy upon.
– What would it have to levy upon if the lessee were not there? Without entering into any theoretical discussion, the practical difficulty is that you will not find an insurance company to-day that would take the risk of insuring improvements in this distant part of Australia.
-The companies would not look at it.
-They will look at anything in which there is profit.
– Of course they will; but even in the settled districts of New South Wales, as I have said, the rates of insurance for fencing run from 5 to 7 per cent. ; and the result is that in their own interests men do not insure such improvements.
– The Administrator simply will not prescribe where it is not practical.
– We have the authority of the Vice-President of the Executive Council for saying that the Ordinance has been framed on the advice of the Administrator and the Director of Lands.I repeat that we have in this clause, and in several others, evidence that these officials have no practical knowledge to guide them. But the very lack of practical knowledge which led them to put in these words would, I am afraid, induce them to prescribe the amount of insurance they require levied on these improvements.
Let me now come to clause 25.It is a clause which I discussed before, and which contained a curious provision under which, in regard to town lands, whilst the rental is fixed for fourteen years, the Crown has the right to come along whenever it thinks that the value of the lands has been added 10 by reason of some public work, and order a re-appraisement every week, or every month, or every year.
– The honorable senator talks of making ridiculous references; but what about that which he has just made?
-If I am asked to take up land under this Ordinance, I have a perfect right to inquire what power the landlord returns in his own hands. Under this clause (he Crown had the power to reappraise the value of town lands whenever the Administrator thinks that the value has been added to owing to the creation of some public work.
-We do not put public works in the street every week.
– They will not necessarily be in the street. The value of lands in Port Darwin may be increased by the building of the railway from Pine Creekto the Katherine. Any improvement, any public work, in the Northern Territory, may add to the value of land in Port Darwin.
– Not “ any,” but some will.
-Every one of the “ some “ is going to be a justification for re-appraising the rent of town blocks.
– No; common sense will not be absent from the administration of the Northern Territory.
-I do not know whether it is absent from the Northern Territory, but it is absent from this Ordinance.
-The re-valuation may not take place more than once in five years.
-But the Administrator may at any time make areappraisement by reason of some public work which has given added value to town lands.
-A very good thing, too.
-We will take it at that. But why is not the same principle applied to other land in the Northern Territory ? If it is an excellent thing that a man who has a¼-acre allotment shall hold it subject to the right of the Administrator to come along whenever he thinks fit and re-appraise it, why is it not a sound and good thing to order are-appraisement under similar conditions with regard to other blocks ? Let us, for the sake of argument, concede that the community has a right to the value which the community creates. Whilst, theoretically, that right exists, at the same time the Administrator ought not to come along every morning and collect the added value. You must give the men whom you invite to go on to the land and improve it a reasonably fixed tenure, or they will not go there at all.
-A reasonable person would not argue that the Administrator would come along every morning.
-The Vice-President of the Executive Council has himself suggested that the re-appraisement may take place every five years. If Senator Barker leased a block of land from me in Melbourne, and erected a humble cottage upon it, what would he say if, in five years, I, the landlord, asserted the right to come along and re-appraise his rental?
-The city councils do that already. They re-appraise every year.
-They do that for rating purposes. But who fixes the rates? The council, which is elected by the ratepayers themselves. But here we have to do with an entirely different thing. If I obtain a piece of unimproved land in a town in the Northern Territory at a certain rental, should the Administrator come along whenever he pleases and reappraise my rental?
– Suppose there is no road to a house, and the landlord spends money in making one; surely he would have a right to come on the tenant ?
-Whatwould Senator Barker say if I allowed him to build a house on a piece of land belonging to me, and retained the right to come along and re-appraise his ground rental whenever I chose? Neither the President nor the Standing Orders would allow me to mention what the honorable senator would say if I submitted such a proposal to him. If any private landlord attempted to do here what the Government are attempting to do in the Northern Territory, Senator Barker would go on to the first platform that was available to him and denounce it.
-Ihave always advocated that the unearned increment should go to the State.
SenatorMILLEN. -I am not arguing whether the community-created increment should go to the Government ; but when any individual goes on to a block of land in the Northern Territory, and spends his money there, he has a right to look for fixity of tenure. It is not proposed under this Ordinance to do in regard to pastoral and agricultural lands what is to be done in the case of town lands. We leave the holder of agricultural and pastoral lands in undisturbed possession for twenty-one years. But, in the case of the rentals of town lands, that is not done. The Ordinance says, first of all, that the values shall be re-appraised every fourteen years, and, next, that they may bere-appraised in between the fourteen years.
-That may only happen in the case of one block in a thousand.
– But that does not make it right. I should have thought that Senator Russell, having voted for the previous Ordinance, and having found that the Government had thrown it back at him, would not have been so ready to think the present one unchallengeable.
-I did not give an unqualified support to the previous one.
– The honorable senator gave it an unqualified vote.
– I had to vote either for or against.
– There is an alternative, which I have suggested this afternoon. That is, that the Vice-President of the Executive Council might move to refer this Ordinance to a Committee of the whole Senate, so that we might discuss it clause by clause. The other House took another course. The honorable senator’s colleagues there were not so prepared to support the Government as he is. We owe it to another place that we are afforded the present opportunity of discussing the amended Ordinance.
There are, in Australia, many proofs of what is regarded as. a necessary provision in such cases. We have, in New South Wales, the State Government leasing Crown land in the city of Sydney. Crown lands are let there under building leases. The City Council is doing the same thing; but nowhere can there be found provisions of this kind, because no one would build under them. The Government of New South Wales, some few years ago, sold some Crown lands under building conditions for ninety-nine years, with a fixed rental for that time. The City Council has recently been letting land on a fifty-years’ lease. At the end of that fifty years, the City Council or the Government will step in as landlords, and receive the unearned increment.
– And very probably every one of these leases contains a building covenant which will have to be carried out.
-And there are building conditions provided in this Ordinance also. The Vice-President of the Executive Council interjected just now, but in regard to the lands I have been speaking of the leases contain a building covenant. The position, therefore, is exactly parallel. In New South Wales, the Government and the City Council offer lands in populous areas which have their future assured under building covenants for fifty and ninety-nine years respectively, with a fixed rental for all that time, while in the Northern Territory, in an unknownland, we are inviting people to spend money on exactly the same conditions, but the Government claim the right, during the currency of each fourteen years, to re-appraise, if it likes. What should be the period of a lease depends on the amount of money to be spent on it. Supposing a man merely wanted a cattle yard, spending a matter of £100, a short lease for two or three years would be sufficient ; but when you ask a man to put up buildings, as in Sydney, running into £100,000 or ,£150,000, he is not going to spend that money unless he can see a return, not merely of interest, but of capital.
– An offer was made to Build the Flinders-street Station on a lease of twenty-one years, with the right to let offices and shops.
– Such an offer was, I believe, made; but it does not advance the argument one bit. To say that somebody somewhere offered to build a certain improvement on a twenty-one years’- lease is no proof that under other circumstances a fourteen years’ lease, with a right of reappraisement whenever the landlord thinks fit, is sufficient. I say that fourteen years is too short a period, especially when you consider that you have an undeveloped territory. People are being invited to go to the Northern Territory, to country that is, if not unknown in a geographical sense, unknown in the sense of being unoccupied. To claim the right to re-appraise the land whenever you think its value has been added to is to reduce the leasehold system to a farce.
– Are you assuming that it will be unfair to the lessee?
– Supposing it fair, it does not get away from this argument. When a man goes on to a block of land, he is looking, not merely to the results of to-day, but what the future will bring. Most people have to seek financial assistance from others, and he wants to be able to put a definite proposition before them, and the first thing he is confronted with here is that he is unable to tell them, for fourteen years ahead, what his expenses will be in the matter of rent. I am not a believer in the capacity of Government officials to determine what is a fair rental anywhere. We have had a bitter experience in the western division of New South Wales when the Treasury raised rents so high that the settlers became bankrupt. It was not until holding after holding was being deserted, and a still larger number of holdings were simply carrying on because the people had no other places to go to, and were getting into debt, that the Government came down with a measure which remedied the state of affairs which existed and brought new life to that division.
– There is the right to appeal to a Judge.
– I am not dealing with that. First of all, is it too much to give any man a fixed term of fourteen years when you put a building covenant in it to erect premises for a business or a home in Port Darwin.
– The great thing, too, is that this Ordinance is infended to stimulate development, and the right of appeal - the prospect of litigation - does not encourage men to put up houses and improvements.
– To talk of appeal at all is to admit that there is something harassing against which the appeal is made. I simply leave it at that. Are not honorable senators pushing this theory of taking the community-created value too far, when they will not give a fourteen years’ lease? If they still think that this right of re-appraisement at will is a good one, let them show their belief in their own theory by applying it to all the lands in the Northern Territory. Now I want to say a word or two on clause 27, sub-clause c, which reads - a covenant by the lessee that he will within three years after the date of the lease stock the land to the extent prescribed by the regulations, and keep the land so stocked during the continuance of the lease ;
That is an excellent provision in its way, but it does not appear to make any exception in case of drought or any other contingency. There is an obligation that the lessee shall keep the land stocked. We know that one thing that has broken the hearts and banking accounts of many graziers has been their inability to keep their stock alive. Times of drought should be provided for.
– But does not that give the power to make regulations?
– I am urging that provision should be made for that. There ought not to be a provision calling upon a lessee to bind himself under a heavy penalty to have his land continually stocked. That should be left out altogether, or a provision made to show what it means.
– Or, as in South Australia, give a Court of relief before enforcing the penalty of forfeiture.
– Exactly. This is an instance of where the theorist comes in with certain ideas, and no practical knowledge to carry them out.
– You will admit that some provision of the kind, with the necessary qualifications, is required?
– Yes, with the necessary qualifications. I have asked a question to find out how many lessees are complying with the covenant. If this thing is to be literally observed, men will be liable to have their leases forfeited owing to their stock being destroyed by drought.
– The literal observance of most leases would cause injury and hardship.
– There is no reason why we should pass a provision which, in the language of Senator Rae, if literally observed, will mean great injury and hardship to settlers in the Northern Territory.
With regard to paragraph d of clause 27, it provides for a covenant by the lessee that he will fence the boundaries of the lease as prescribed by the regulations. Elsewhere these are spoken , of as “ regulations for the time being.” That will permit of their variation from time to time. I do suggest that those responsible will have to go slow in dealing with fencing in the Territory, where timber is expensive because of its scarcity. The provision to which I now direct attention seems to me to give the authorities power’ to vary the regulations with regard to fencing periodically.
– That is expressly dealt with in paragraph j.
– A man should know the conditions before he takes up his lease, and then he should be held to them. It is neither common sense nor business-like to say that the Crown, after it has put in a man under one set of conditions, should claim the right to come along and superimpose other conditions upon him.
– Would you define in the Ordinance what class of fence a man should put round his holding?
– I would let a man know that, not in the Ordinance, but in the Gazette notice which invited his application for the land.
– You want to be definite on some points, but not on others.
– In this particular matter I am prepared to be as definite as the honorable senator may wish. Before the Government offer a block and invite any one to apply for it as a lessee, they ought to set out there and then the conditions which they are going to attach to the lease, and the man who takes the landunder those conditions should be held to them. But power is taken here for the Government to come along, after a lease has been granted, and superimpose other conditions upon the lessee. It is quite fair and legitimate, of course, that a mar* should abide by the conditions which are notified to him when he takes up a lease, but no landlord or Government ought to have the right to come along later and say to a lessee, “ Although you have followed out these conditions, we claim the right to impose other conditions,” in short, to change the terms of the contract altogether. On this subject of fencing, let me point out that there does not appear to be any provision dealing with a common boundary,, nor any power taken to create a provision. It may be, as has happened in the more settled States, where two neighbours join, that one may desire to fence, and the other may not. One may desire to put up a more costly fence than the other is willing to agree to, but there is no provision made in this Ordinance, so far as I can see, to meet a situation of that kind. The Administrator may offer two adjoining blocks without any provision for fencing. He may be content to allow the blocks to go withoutfencing.
– Would not the South Australian law, which is still in force inthe Territory, govern that?
– That may be so,, and I am going to deal with that presently.
– The State Act contains a definition of what is a good and sufficient fence.
– That is so, but that does not get over the power taken here to vary the regulations as to fencing from time to time. It is quite possible that what the Minister says regarding a common boundary fence may be correct. I shall come later to a clause which revives and continues South Australian laws, and to which I take the strongest possible objection for reasons which I shall set out. On the assumption that the State law is sufficient, I shall not say any more about a common’ boundary fence, but, judging from the amount of trouble which has been experienced in, 1 suppose, all the States regarding this matter, the sooner we have our own law on the subject, . rather than rely on any other, and a definite announcement in each lease as to what the law is to be, the better it will be for all parties concerned.
Clauses 28 to 37 are new, and their appearance is due to the fact that for pastoral lands terminable leases have been substituted for perpetual leases. Here is a remarkable change of front displayed by the advocates of perpetual leases. Originally prepared to grant perpetual leases for pastoral areas, they have now come down to leases for twenty-one years, in some cases, and forty-two years in other cases. A forty-two-years’ lease is the tenure which has prevailed in the Northern Territory for some time. It does, to my mind, suggest a much more likely proposition than a twenty-one years’ lease. I know of no pastoral land anywhere in Australia which was originally offered for such a short term as twenty-one years. Queensland started with leases for twenty-one years in comparatively settled country, and I think I am right in saying that leases in that State now range from twenty-eight to thirty and forty years. In New South Wales, in earlier times, we have had leases which run up to twenty-one years, with the tight of renewal or an extension for a portion of the area. In the more particularly pastoral country in the Western Division a lease for forty years was given to the men who were in possession.
– With the right of resumption of a portion.
– One-eighth. We are, I think, overlooking the practical requirements of the case when we propose to grant hese definite leases - originally to be perpetual, but now to be for forty-two years - without providing for some resumption other than is contemplated by the Ordinance. Instead of putting a limit on the area which may be held in big pastoral leases, it would have been very much better for the Government to have said to these men, “ You shall have a definite period under settled conditions, but at the end of half of the term of lease we shall claim the right to take a portion of your run should it be required for smaller settlement. “ That would continually make available for the Crown land which might be required for other settlers, and the lessee would know the half which he would hold for the longer period ; he would mass improvements as far as he could on that portion, and that would save a lot of trouble later. No outgoing lessee has ever yet been satisfied with the amount of compensation which he has received from the incoming tenant, nor has the latter ever been “satisfied with the amount which he was called upon to pay. The result of experience in New South Wales brought us to a very wise provision in regard to improvements. It was stipulated that improvements were to be valued at their value to the incoming tenant, and that, of course, had relation to the area of land which the incoming tenant would take. The experience of many of the States seems to have been entirely ignored. All the problems with which we are confronted in the Northern Territory have presented themselves elsewhere. I shall not say that they have been satisfactorily settled, but the keen edge has been taken off them. So far as I know, we have met difficulties which, apparently, in the Territory we are asked to deal with de novo. I cannot help thinking that twenty-one years is too short a term for a lease if it is to be confined to purely pastoral lands. The leases for the comparatively smaller blocks - the 38,000- acre blocks, which represent the smaller pastoralists - are to be perpetual leases. They will provide for many years to come for what I would regard as a very desirable class of settlers, but when we come to deal with purely pastoral areas a twenty-one years’ lease does not appear to me to be quite sufficient. I wish to direct attention to two errors - probably typographical - in clauses 29 and 31. Clause 29 reads -
If a new pastoral lease of any land in class A is gazetted -
There is no class A, and it is clearly intended to be class 1. Near the end of clause 31 there is a provision which would make the outgoing lessee continue to pay the “ rent received by and observe and perform the terms and conditions of the new lease.” The word “ received “ is evidently a misprint or a mistake. The term should be “ reserved “ or “ due by.” The clause is, I assume, taken from the South Australian Act, in which the term employed is “ reserved.” In this clause there is a strange provision, and the only justification, apparently, is that it finds a place in the State Act ; and that is a provision requiring an outgoing lessee, before he hands over his property, and before he is paid .for his improvements, to pay 5 per cent, interest oh the value of his own improvements in that interim period. An outgoing tenant has some improvements upon his land, and has perhaps in six months to hand them over to the incoming tenant; he does not get paid for them until the incoming tenant takes possession, but in the meantime he is required to pay interest on his own improvements. I do not see any point or justification in that; but I can quite understand how the difficulty has arisen. If the improvements were paid for before the new tenant went into possession, it is only fair and right that the old tenant who continued in occupation should pay rent; but until he receives the capital value he surely has no right to_ be called upon to pay interest on his own improvements. Probably the mistake has occurred in the State Act in confusing the amount which has been paid with the amount which is to be paid.
I now ask honorable senators to look at a rather serious omission, in these leases. In Division III., dealing with agricultural leases, are set out the covenants and reservations which shall figure in agricultural leases, and which are six in number. If they will turn to the corresponding clause dealing with pastoral leases, they will find that certain conditions are omitted from the agricultural leases and provisions which, I think, ought to find a place in them. In clause 27, dealing with pastoral leases - they will find that there are ten conditions set out as against six in connexion with these leases. The omitted conditions are as follow -
A reservation of all timber and timber trees and of all trees producing bark, resin, or valuable substances.
A covenant by the lessee that he will comply with the laws in force relating to the destruction of vermin and noxious weeds.
A covenant by the lessee that he will not, without the consent of the Director of Lands, cut any timber trees on the leased land, except for use on or in connexion with the land.
A covenant by the lessee that he will not in clearing the land destroy any timber or timber trees or trees producing any valuable bark, resin, or other valuable substances, except as allowed by the regulation.
A covenant by the lessee that he will not obstruct any public roads, parks, or ways, or interfere with the use thereof by any person, and will not interfere with travelling stock lawfully passing through the leased land.
A covenant by the lessee that he will not pollute, divert, or obstruct any water Sowing in a denned natural channel, unless by consent of the Director of Lands.
Three of these conditions provide for the preservation of timber.
– Which is most necessary.
– I think so.
– On agricultural lands ?
– On agricultural leases of 38,000 acres certainly. These blocks are absurdly, misnamed “ mixed farming blocks,” because they will be grazing properties, and it would be a national shame if we were to allow an indiscriminate right to destroy timber upon them.
– It should not be allowed even in the case of ordinary farms.
– I was going to say that in New South Wales, in the case of comparatively small blocks disposed of as settlement leases, provision is made for the preservation of timber. While I do not suggest that conditions should be pushed to an unreasonable extent or capriciously insisted upon, I do suggest that, as we are * here dealing with leases, it would be wise to insert some provision to prevent the destruction of valuable timber. Only within the last day or two there has been a Conference held in Melbourne of representatives of Forestry Departments to advise as to what should be done in Australia for the preservation of our timber supplies. I think it quite unnecessary to argue the matter. It is admitted that we had a valuable asset in our timbers, and that a great deal of it has been destroyed under circumstances which,, some time ago, probably appeared reasonable enough, but would not now be considered reasonable at all. Why should not the Government, in connexion with these 38,000 acre leases, which they are going ta dispose of as farms, say to the lessee, as they propose to say to the pastoral lessee, who may have 40,000 acres alongside oneof these leases, “ We shall put a reservation, in your lease for the preservation of all timber and timber trees, and shall require that you shall not, without the consent of theDirector of Lands, cut any timber trees on. your leased land except for use in connexion, with the land, and that, in clearing the land, you shall not destroy any valuable trees.” That would be merely telling these lessees that they are not to have the right to destroy all the timber on their leases. No one would desire an absolute reservation of all timbers, but we should at least compel the lessee to confer with the officials before he is allowed to destroy timber orahis lease indiscriminately.
– That could be provided for by regulation.
– I am dealing with a provision which is applicable to pastoral leases, and not to agricultural leases.
– The agricultural lessee must covenant to comply with all regulations under the Ordinance.
– That is a drag-net provision, which is applicable to both pastoral leases and agricultural leases, but it is only in connexion with pastoral leases that specific provisions are made to prevent the destruction of timber. It appears to me that what was in the minds of the authors of the Ordinance was just what was in the minds of the Minister of Defence and the Vice-President of the Executive Council when, just now, in reply to an interjection by Senator Rae, they asked whether a provision against the destruction of timber was necessary in the case of agricultural lands.
– I think that a general prohibition against the destruction of timber on agricultural lands would be ridiculous.
– That is just what was probably in the minds of those who framed the Ordinance. They clearly thought such a provision was unnecessary in the case of agricultural lands. But it is idle to talk of agricultural lands when we are dealing with 38,000-acre blocks. They will be used as grazing leases. No man in this Chamber, with any practical knowledge of the subject, will say otherwise.
– No man in his senses, in clearing a 2,560-acre farm, would fail to leave timber reserves.
– Senator Rae knows that in the country with which he is familiar a great deal of timber has been wasted on such blocks as those to which he has referred. So much has this been the case in New South Wales that men have taken up blocks of land for the sake of the timber upon them, and, having cut all the timber, they have abandoned them. I have in mind a curious case, and I almost feel guilty when I mention it. It occurred in one of the south-coast districts of New South Wales. A man took up a lot -of land there at £i an acre from the Crown. Later, a re-appraisement law came into force, and this man applied to the Land Board for a re-appraisement of his land. Although the evidence went to show that he had taken off the land timber to the value of from to £6 per acre, he secured a reduction in the original appraisement of the land of 10s. per acre.
– If the honorable senator assisted him in that, he ought to be ashamed.
– If my honorable friend wishes to know, I may tell him that my share in the matter was to point out what, in my view, was the reading of the Act. Under this clause, a man can abandon his lease at any time on payment of the rent up to date, and if there be no provision to prevent the destruction of the timber, there will be nothing to prevent lessees in the Northern Territory doing what has been done elsewhere. They may take up leases, cut all the timber, which is doubly valuable in a country where timber is so scarce, and the Government will have the blocks thrown back upon them at a later date when they will be of very much less value. I trust that reasonable precautions will be taken to see that these lands are not entirely denuded of timber which, sooner or later, the country will need.
I wish to deal now for a moment with the miscellaneous leases in Division V. of this Ordinance. The clauses dealing with them have been taken from existing laws in the various States ; but there is this great difference always to be considered : In each of the States, there are provisions by which men may obtain freeholds, whilst there are no provisions of that kind in this Ordinance. These miscellaneous leases will be the only tenures which men will be able to obtain in order to carry on business occupations in country districts, and, in the circumstances, I submit, for the consideration of Ministers, that a twenty-one years’” lease is not a sufficiently long lease to provide for. What I have in mind is the possibility of graziers in the Northern Territory, as graziers did some years ago inQueensland and in New South Wales, acting in co-operation for the establishment of meat works to deal with their surplus stock. They will be unable to do that, under the terms of the leases upon which they can take up pastoral lands under this Ordinance, because those, leases will permit the use of the lands only for the purposes of the lease. If a company were formed1 for the establishment of meat- works, thecompany would not desire to bund upon the lease held by one member of the company, but, very naturally, such a company would desire to secure the title to its= property. The blocks required for the purpose would be small, and there is noreason why power should not be taken togrant leases for such areas for very much longer periods than are here provided for. The Administrator should, of course, have the right to say that, in particular instances, a lease for a shorter period than the maximum shall be granted; but he should be in a position to grant leases for such purposes for a longer period than is provided for in this Ordinance.
I have a word or two to say on Part IV. of the Ordinance dealing with resumptions. I have not only thought the matter over myself, but I took the opportunity of conferring with a number of people who are associated with the pastoral industry in the drier portions of Australia.
– Provision is made in case of resumption for compensation in respect of the decreased value of the balance of the leasehold.
– That is so, but that does not wholly meet the difficulty. The gentleman who first drew my attention to the matter put it in this way, “ I held a lease in New South Wales, and the Government had the right to resume a portion of it. The property is not a big one, running only 7,000 or 8,000 sheep. The Government resumed half the property, and what am I now to do with half my capital? “ The resumption of half a man’s leasehold might place him in a very awkward predicament, and where a resumption is decided upon, the lessee should have the right to demand the resumption of his whole block.
I wish now to point out a serious defect in connexion with sub-clauses 6, 7, and 8 of clause 48. Whilst the Ordinance provides that the outgoing lessee shall be paid, the method of paying him is left entirely to regulation. I do not think that a similar provision can be found in any Land Act. In our Lands Acquisition Act, and in the Lands Acts of New South Wales and South Australia, there are special provisions as to the method of making compensation for resumption.
In South Australia, clauses 59 to 61 provide for arbitration, and set out the terms under which the arbitrators are to be appointed. They tell a man the conditions under which he will be compensated. It is the same in New South Wales, and also under the Commonwealth Lands Acquisition Act. But in this case the compensation is to be provided in a manner “ prescribed by the regulations.” Whilst one may have an abounding faith in both the capacity and integrity of Government officers to deal with these matters, I submit that we are now face to face with a business proposition, and that it is not a business proposition to tell a man who is claiming the right to compensation that his case will be dealt with under regulations to be framed at some future time. I sugges’t that we ought to have some definite provisions inserted in the Ordinance - preferably those which are contained in the South Australian Act: I also direct attention to paragraph c of clause 18, which takes power, not merely to resume the whole or any portion of the land a8 prescribed by this Ordinance, but also to resume under any future regulation. The power might, therefore, be varied from time to time. I suggest that the Government would be well advised to introduce some definite proposal which would in no sense jeopardize the public interest, but would give a measure of confidence and assurance to those who are invited to occupy these lands. Sub-clause 8 of clause 48 defines “ improvements “ as meaning - improvements of a permanent nature reasonably adapted to the use of the leased lands for the purposes of the lease, and which, in the case of improvements on pastoral leases, have been erected with the approval of the Director of Lands.
One might have thought that even a university professor would have recognised the unsuitableness of the word “ erected “ as applied, for instance, to the sinking pf a well. The term is ill-chosen.
– “ Made “ would be better.
– Three words are used throughout this Ordinance dealing with improvements. It is advisable to use only one. In clause 35, sub-clause 3, there is a reference to “ improvements created “ by the lessee. That term is suitable. But in another clause there is a reference to “ making “ improvements. Either “ created “ or “made” would be suitable, but “erected” certainly is not. You cannot speak of “ erecting “ a well or a tank.
– The term is scarcely suitable to cutting-down timber.
– I do not know that ring-barking could be described as “erecting.” With regard to sub-clause 9, words have been introduced, as compared with the old Ordinance, which make it still clearer that it is intended to pay the lessee not merely for his improvements, but also to pay him compensation for the resumption of the lease itself. My contention on that point was disputed on a former occasion, particularly by Senator Russell, the contention being that the lessee would be paid simply for the value added by his own improvements. The amendment now made makes it abundantly clear that common justice is to be done, and that, in additionto being paid for improvements, the tenant will be compensated for loss sustained through the resumption of his lease.
I come now to clause 54. This is a case in which the provisions of South Australian Acts are, continued. When this matter was last before the Senate, the Vice-President of the Executive Council urged that it was necessary to have some intermediate legislation - a sort of stop-gap. He mentioned the early days of Australia, when English law was made applicable to this country bolus bolus. That might have been a good! argument as applied to the Northern Territory if no Ordinance had been introduced but this Ordinance will be our legislationon the subject, and it would be preferable to set out in it what the provisions of the law are to be rather than to revive a whole series of laws passed by the Legislature of South Australia. I have nothing to say with regard to the application of SouthAustralian Acts to leases which are already in operation. Where a lease has been* granted under the conditions of a South* Australian law, it ought to be observed. But what I am’ objecting to more particularly is that sub-clauses 1 and 3 of clause 54 apply South Australian law with regard to new leases which we are about to create. I am perfectly certain that, sooner or later, if this clause is continued, some lessee will confront us with some South Australian Act of which we had no knowledge, and which, perhaps, had been forgotten, and will say to us, “You cannot do that, because the Ordinance under which I took this lease continued a right existing under a South Australian Act of the year one.” That has happened frequently in New South Wales. I have no doubt that the President knows of instances where it has. happened in Queensland. A man having obtained a tenure under a more recent law took the point - which was upheld - that that law did not repeal a provision of an old Act. He gained a benefit in that way. There is no reason to continue South Australian Acts under this clause. Let the Department go through them and decide what it is advisable to continue in connexion with the new tenures which we are about to create; and let them be .embodied in the Ordinance, so dissociating our legislation from South Australian legislation of which we have no knowledge, and for which we can have no responsibility. There is also a provision in the clause to enable the holders of leases granted by South Australia to convert to leases under this Ordinance. It may be a good provision, or a bad one, according to the way it is administered ; but I wish to sound a note of warning. The land which has already been occupied, is, I take it for granted, the best of the land. If we look through the list of leases issued in the Territory we find that there are about eighteen which will fall in within the next ten years. They are not particularly big ones. There are several which will fall in within the next twenty-three years. Every one of the leaseholders whose leases fall in within the next ten years, and in a lesser degree those that fall in within the next twentythree years, will naturally desire to convert to forty-two years’ leases under this Ordinance. I do not want to say for a moment that these individuals should not get an extension, and should not come under the Ordinance. But I do submit that the very greatest care ought to be exercised in the granting of conversions from South Australian leases to Northern Territory leases. There may be cases in which these leases can safely be renewed, but if the land on lease which will come back to us for our control in the next twenty years is going to be limited in area, ‘ I cannot help thinking that no rule of thumb renewals ought to be granted under the terms of this Ordinance. There is a strange omission from the Ordinance. It seems to me that no conversions can be allowed except ( for the periods set out in the Ordinance itself. A man whose lease is about to expire would probably confront the Administrator with his application to lie allowed to come in under the Ordinance and get a lease for forty-two years. The Administrator would probably feel in- dined to say, “ I am very sorry, but I do not feel disposed to grant you a fortytwo years’ lease. But I have no power to grant you a lease for a shorter period.” Surely there ought to be some provision that where these unexpired South Australian leases fall in the Administrator, shall not be placed in the position either of having to refuse renewal absolutely or bc grant renewal for the full period of forty-two years. Some provision for a shorter period ought to find a place in the Ordinance. But apart from that, I hope the most conservative view will be taken with regard to any application for the conversion of those leases which expire in the next few years.
Here I may direct attention to a pamphlet issued by the Department of External Affairs’, in which is set out the number of leases current, forfeited, and unexpired in the Northern Territory. Such a document may or may not have been necessary, but I direct attention to the waste of public money in its printing. Page after page of this pamphlet is simply blank. The number of leases is set out in numerical order, but there has been no attempt to print the information in an economical manner. Senator Findley, as a practical printer, knows’ that it is impossible to set out these blank pages with rules without the expenditure of a considerable amount of money.
– I am responsible for that, and I think it is a very convenient way of setting out the information. Otherwise it would take two or three hours perhaps to search for one leaseholder.
– Senator Findley shows a lamentable lack of business knowledge in making that statement. I do not deny that the Department Kas to keep a register, but here is a book of T30 or 140 pages, a large number of which are blank.
– It does not cost much money to fill in a page with quads. It does not cost so much as setting up reading matter.
– What was wanted was simply a pamphlet showing the number of leases current, the term of these leases, and other particulars concerning them. Information concerning the whole of the forfeited leases could have been put in one table under the heading, “ The following leases have been forfeited.” I will show by an illustration the absurdity of what is done here. Senator Findley is not unfamiliar with the institution known as Tattersalls. What would he say if Tattersalls published the number of every ticket that drew a blank, and set them out in the form followed in this pamphlet? It would have been possible to prepare three tables, one showing the leases current, another showing leases surrendered, and a third leases forfeited. No one knows better than Senator Findley that, whilst this pamphlet is an elaborate production, it has cost the taxpayers a great deal of unnecessary money.
– A mere bagatelle.
– It is not a bagatelle. This is the sort of thing that is going on in connexion with too many of our public Departments, which, apparently, show no concern at all, because their officers do not have to find the money which they spend.
I next direct attention to clause 55, in which an important amendment has been made. It originally read that the Administrator might make and publish regulations of his own. That has been altered to “ The Governor-General may make regulations.” I need say no more than that the alteration is significant of the fact that the Government have at last recognised that it is not wise, in connexion with a land Ordinance of this kind, to leave to an impractical Administrator too much control.
The next matter I have to mention concerns the drafting of the Ordinance. I find that, in connexion with the Gazette, three terms are employed. In clauses 17, 22, 23, 38, 55, and the regulations, the word “ Gazette “ is used. In clause 13, there is a provision that certain matters are to be published in the Northern Territory Gazette, and the Commonwealth Gazette. Further on, in clause ss, the term “ Gazette of the Northern Territory “ is used. Three terms are used. Some matters are to be published both in the Northern Territory Gazette and in the Commonwealth Gazette; some are to be published only in one; and as to that one, there appears to be a doubt whether publication is to be in the Northern Territory Gazette or in the Commonwealth Gazette. I think that that doubt ought to be set at rest, otherwise somebody, when a resumption is decided upon, may take the point that he was entitled to have the matter gazetted in the Commonwealth Gazette as well as in the Northern
Territory Gazette. The employment of the three terms leaves a doubt as to what is intended.
I come now to the regulations, and with these will conclude my observations. The first to which I direct attention is No. 9. It is the one requiring a medical certificate of fitness. I did hope that the Department was going to strike out that provision. If a man makes an application for land, the Director of Lands may ask him to produce a certificate that he is medically fit. There is, of course, a great deal to be said as to the desirableness of having a suitable class of settlers in the Northern Territory. But( I want honorable senators to be practical in this matter. We are not dealing now with immigrants, because the Department responsible for the exclusion of undesirable immigrants can well be left to deal with people under that head. We are now dealing with applicants for land ; and if immigrants have passed through the test provided by the Department of Trade and Customs, why is it necessary to have this provision in regard to a man who desires to go to the Northern Territory? The Minister, on a former occasion, said that this certificate of fitness would only be necessary when it was asked for, suggesting that there would be differentiation, and that the Minister is going to ask for a certificate from John Smith, whereas he would not dream of asking for it from William Brown. That makes the matter worse. If any -certificate is required, the provision ought to apply all round. The idea of asking for medical certificates of fitness, however, is here carried to a dangerous extent. If it is desirable to have medical certificates regarding the men who go out there to take up land, it was equally desirable to have medical certificates in regard to the Government officials. Did the Minister insist upon medical certificates being produced before the officers were sent to the Northern Territory? I cannot imagine where this provision had its origin, unless it has arisen from an ever-present tendency on the part of Government officials. When they are placed in the position of administering ‘ a Department unrestrained by the active control of Parliament, they seem to think that they are called upon to do everything in regard to every individual. I can imagine the Administrator saying that where the land carries a residential condition it is necessary to have people out there whose health would permit them to reside, but if that is the argument which is used, it is a much stronger ground for asking for a medical certificate as to the fitness of a man’s wife. I do not believe that a medical certificate will be effective, even if it is insisted upon, but it introduces an element of absurdity into our proceedings to say that a man cannot apply for land in the Northern Territory, where we are anxious to get settlers, although he can apply for land in any State without a medical certificate, until he has first demonstrated his physical fitness for the terrors of that life. Regulation10 is a much more serious proposition; that is the invitation to slander to which I directed attention last time - (1.) Any information supplied by an applicant to the Classification Board or to an authorized person shall, if the applicant so desire, be treated by the Classification Board as confidential. (2.) Any information supplied by any persons, other than the applicant, to the Classification Board or any authorized persons, at the request of the Classification Board or authorized person, shall be privileged, and shall be treated by the Classification Board as confidential.
That is a Paul Pry sort of business, a sneaking, un-British, underhand method of obtaining tittle-tattle, which a number of gossiping or venomous people may be inclined to circulate regarding an applicant. I have never heard of such a proposal before. I cannot understand how it came to be in an Ordinance submitted by a Government which is responsible to Parliament. I do not believe that there is an honorable senator who will seriously contend that it is a decent, healthy proposition, ‘that the Classification Board may say to the people of the world, “ Any of you who like to tell us what you please about an applicant can do so with impunity, and, what is more, it will be a privileged communication, and, therefore, free from the law of slander or libel.” I ask honorable senators to contrast that with the practice which generally prevails, and that is that if a man has anything to say against an applicant he goes into open Court, where the applicant has an opportunity of rebutting his statement.
– The Classification Board are not bound to take his statement as Gospel truth.
SenatorMILLEN.-What has that to do with the matter ? The point is : Ought a man to be allowed to make a statement of that kind ?
-The other man ought to have rebutting evidence.
SenatorMILLEN. -The other man is not told of the statement. I do not suppose that the Government are responsible for this provision. They may father it or defend it, but I do not believe for a moment that it found its origin in the mind of any Minister, because it is too repugnant to our general sense of fair play and justice. It is, I think, traceable to the Administrator, a man who may be conscious of his own integrity, and thinks that, for that reason, he can take extraordinary powers and establish a sort of benevolent despotism. I. venture to say that this Parliament would not sanction such a proposal were it submitted in a Bill. I do hope that honorable senators, if they will not speak publicly, will at least tell the Ministers what they think of this regulation, in order to remove that which, if allowed to remain, will be a blot on the legislative efforts of this Parliament. Regulation 12 requires the Classification Board to send a notice to each successful applicant as to the grant of his application. Seeing that many of these applications will come from various parts of Australia, there ought to be a provisionfor doing more than sending a notice to a successful applicant. It would save a great deal of time and trouble if an answer were sent to every applicant. That is what an ordinary business firm would do. The Minister might convey to the Administrator a suggestion that every applicant should receive an answer. In regulation14, with regard to town lands, there is a provision which I regard as almost dangerous-
Provided that in the case of town lands which have been offered for sale by public auction before the commencement of the Ordinance, applications may be received and dealt with as if the land had been offered under the Ordinance.
There is generally a provision that town lands are to be offered first by public auction at an upset rental, and if they are not then purchased, the Administrator may deal privately with people for the sale of the leases at the upset rental. That is all right, but the proviso says that where freehold land has been offered for sale, perhaps ten or twenty years ago, the Minister can, without going through any preliminaries, privately sell a lease of that land. I do not think that we ought to sanction a provision of that kind. There is a safeguard in insisting that all lands shall be offered first at public auction. I suggest that the proviso should be struck out, and that town lands should be first offered by public auction. I come now to the last regulation, which is almost as serious as the one dealing with secret information. Regulation 21 contains the procedure on breach ofa covenant by a lessee. If honorable senators will take the trouble to read the regulation, I think that they will be staggered at the amount of power which is vested in one individual. I do not know of any individual or Court having thesame power as that which is sought to be placed in the Director of Lands. If he is satisfied that a lessee hasfailed to comply with any of the covenants of the lease he may consider any explanation offered, but finally he may forfeit the lease, and the lessee will have no right of appeal against this arbitrary act. After the lease is forfeited, but not before, the Administrator may, if he likes, step in and reverse the forfeiture. It is ridiculous to provide that the Administrator cannot act until a lease has been forfeited. If the Director of Lands thinks that there has been such a breach of the covenants of the lease as to render forfeiture justifiable, surely he ought to intimate that opinion, and give the lessee an opportunity there and then to appeal to the Administrator, and not wait until the forfeiture has taken place. It seems to me to be a case of putting the cart before the horse. I ask honorable senators to consider the vast powers which are put in the hands of the Director of Lands. Sitting in his own office, he is to have the power of saying whether he will forfeit a man’s holding, and with that all that the man possesses in the world. That is not a fair or business-like method. In the States, an opportunity is given to a lessee to state his case before a Court openly. In New South Wales, the Land Board is the original tribunal. When a man is charged with a breach of covenant, he is cited before the Land Board, which hears the evidence on oath. The lessee has an opportunity of putting forward his defence, and if the verdict is against him, he can go to the Appeal Court, consisting of three individuals, and state his case fairly and openly. The Land Board is composed of three members, two of whom are local residents, who are either interested in land matters, or possess some land knowledge. They are supposed to be the practical members of the Board. In contrast with that system, this Ordinance puts the whole power in the hands of a Government official. There is not a man holding land under the Crown in Queensland or New South Wales, who would be satisfied to leave the determination of his interests in the hands of a single public official, no matter who he might be. True it is that the Ordinance allows an appeal from the Director of Lands to the Administrator, but that is merely an appeal from one official to another, both being closely in touch with each other. I regard the regulation as tyrannical. Surely there is something wrong when it is provided that an appeal cannot be entertained until after the forfeiture of the lease. I must apologize for having spoken at this length, but I am rather the victim of circumstances than responsible for the demand I have made upon the time of the Senate. I have directed attention to defects in the Ordinance, and I feel confident that honorable senators will admit that it does contain defects.In abandoning one Ordinance, the Ministry admitted that they are not infallible. I ask honorable senators to exercise a greater independence than they did on a previous occasion, and to do here what their brethren did elsewhere, and that is, to make their opinion known, in order that we may, as far as possible, give to the Northern Territory the most perfect Ordinance we are capable of constructing, seeing that it is to form the very basis of the land system there for years to come.
Debate (on motion by Senator McGregor) adjourned.
In Committee (Consideration of House ‘ of Representatives’ amendments resumed from22nd November, vide page5867) :
Clause 349 - (1.) The master of any ship requiring the services of a pilot shall receive on board the first pilot offering himself, and shall on demand by that pilot give the ship into his charge. (a.) The master of any such ship shall not quit his station or anchorage within any port proclaimed as above without first receiving a pilot on board.
Penalty : Twenty pounds. (3.) The penalty under this section shall be in addition to the amount due for pilotage.
House of Representatives’ Amendment. - Omit “ the ship into his charge,” insert “ the charge of piloting the ship to that pilot.”
Upon which Senator Pearce had moved -
That the amendment be agreed to.
. -There are places where there is no compulsory pilotage, and places where there are compulsory pilots. What will be the liability in a place which is not to have compulsory pilots, and what will be the position where pilotage is to be compulsory ? Another very important point arises. With compulsory pilotage we assume that for the time being the pilot has charge of a ship, and that everybody on board - from the master downwards - is under the control of the compulsory pilot so far as navigation is concerned. Yet the Government have put in a provision that the Commonwealth is in no way to be held responsible for the consequences of any act of neglect on the part of the pilot. In ordinary cases a master is held responsible for the negligent performance of his duty by a servant ; but here, although the Government provide for compulsory pilotage in certain ports, there is to be no responsibility upon the Commonwealth to make good any damage due to the negligence or incapacity of a pilot compulsorily employed.
-It is only fair that there should be, but with a limitation.
– I see no reference to any limitation in this clause. Compulsory pilotage will prevail in certain ports, and in certain other ports the pilotage will not be compulsory, and we should be informed as to what difference this will make as to the liability of the pilot, or of the Commonwealth, in either case. We should know why the Government so strongly insist upon compulsory pilotage in certain ports and not in others. I have asked the Minister some very important questions, and if he does not reply we, of course, have our remedy.
– I do not know what the honorable senator is driving at.
– Then, I shall put the questions in such a way that, even with his intelligence, the Minister cannot fail to understand them. Hitherto, compulsory pilotage has been exceptional.
– No !
– Yes ; it has been exceptional. Provision is made in the Bill for compulsory pilotage in some ports and not in others. The Minister should know that, prior to Federation, in connexion with the loss in Moreton Bay of the Waipara and the Eastern, the whole question of the liability of the State for damage due to the negligence of a Government pilot was considered; and, later on, the Queensland Parliament passed an Act relieving the State of all responsibility in such cases. This was after the State Government had sustained a long and expensive action to determine their responsibility. I ask now why it is proposed that there shall be compulsory pilotage in some ports and not in others, and, in the case of fee loss of ships due to the negligence of pilots, in each case, what distinction, if any, is made in the matter of liability for damage? It is of no use for the Minister to say that he does not understand the questions, or that they are not questions which should be satisfactorily answered before we finally pass this Bill.
– Senator St. Ledger has a very short memory. I have answered his questions half-a-dozen times when previously discussing the clause, but for his special benefit, I shall answer them again. As I understand the honorable senator, he asks why we propose to adopt compulsory pilotage in some ports and not in others. I have pointed out that where compulsory pilotage is enforced, the work will be carried out by pilots who will be Government servants. This has been decided upon because, in these ports, the shipping traffic will be great, and navigation difficult. There will be sufficient work to employ the whole of a pilot’s time, and pilots employed in these ports willbe required to possess higher qualifications than will be deemed necessary for pilots employed under licence where navigation is not so difficult. Now, as to the question of liability, the shipmaster will be liable in both cases for the whole of the liability and the liability of the Commonwealth, and there will be no liability on the Commonwealth or upon the pilot. The honorable senator will see that under the next amendment of the House of Representatives provision is made that the Commonwealth shall not be liable for any loss or damage occasioned by the neglect or want of skill of any pilot.
Motion agreed to.
Clause 351 (Liability for neglect of pilots).
House of Representatives’ Amendment. -Omit the clause, and insert the following new clause : - 351. - (1.) No pilot shall be personally liable in pecuniary damages for any damage or loss occasioned by his neglect or want of skill. (2.) The Commonwealth shall not be liable for any damage or loss occasioned by the neglect or want of skill of any pilot.
Motion (by Senator Pearce) proposed -
That the amendment be agreed to.
-Colonel Sir ALBERT GOULD (New South Wales) [6.20]. - The Government propose here to entirely depart from the position taken up by the Senate when it last considered the Bill. In the Old ‘Country a pilot has to enter into a bond of ; £100, which amount may be forfeited in the case of damage occasioned by his negligence or want of skill. In such cases under the State laws at the present time a pilot is personally liable to pecuniary damages to the extent of . £100. It is urged that because pilots are very poorly paid, and are usually men with very little means, they should be exempt from any pecuniary liability for damage caused by their negligence or want of skill. But when a man undertakes to perform a certain duty, he is bound to bring to its performance the ordinary skill and intelligence which it requires. A pilot is placed in charge of a ship.
– Not absolutely.
-Colonel Sir ALBERT GOULD. - He is supposed to be in charge of the ship, subject under this Bill to the authority of the master, but I point out that the master is compelled to take a pilot where pilotage is compulsory, and he has no power to pick or choose, because he must take the first pilot who offers himself for employment. If the ship is lost or damaged through the negligence or want of skill of the pilot in such circumstances he ought to be liable to be punished in some way.
– So he is.
-Colonel Sir ALBERT GOULD. - In what way ?
– He may be discharged and his licence taken from him.
-Colonel Sir ALBERT GOULD. - It is true that he may be discharged and deprived of his licence, but if to that we added a pecuniary liability, it would tend to make pilots more careful than they otherwise would be.
– The pilot is also in danger of being charged with an indictable offence for negligence.
-Colonel Sir ALBERT GOULD. - We want to be able to hold some penalty over pilots to insure that they will do their work properly and carefully.
– Do we do that in the case of engine-drivers?
-Colonel Sir ALBERT GOULD. - Engine-drivers are liable if an accident happened as the result of negligence on their part.
– So is a pilot.
-Colonel Sir ALBERT GOULD. - If the honorable senator will take the trouble to read the clause which we are now discussing, he will see that it provides that no pilot shall be personally liable to a pecuniary penalty for damage or loss occasioned by reason of his neglect or want of skill.
– He may be faced with a charge of manslaughter.
– The honorable senator practically says that we may send a pilot to gaol, but we should not fine him. I have heard no sufficient reason for departing from the provision contained in the Bill when it left the Senate. I am sorry that the Minister has not given an explanation of the proposed change. It was understood that where important changes were made by the House of Representatives, the Minister would explain why those amendments were made in another place. In the absence of any explanation in this case, we are justified in directing special attention to this amendment, which relieves a pilot from any pecuniary penalty in the case of damage due to his neglect or want of skill. It has been suggested that the clause might be omitted altogether, but if that course were followed, a pilot would be liable to a penalty, the amount of which would be unknown. It is now proposed that the ship-owner shall be responsible for any damage caused by the neglect or want of skill of the pilot. We deprive the master representing the ship-owner of the right to select the best man, in his opinion, as pilot, and we still make the ship-owner liable for all damage. The Commonwealth Government propose to compel the employment of the first pilot offering himself, and they take special care that the Commonwealth shall be relieved of all liability in the case of an accident. We should, in all the circumstances, have an explanation df’ the reasons of the House of Representatives’ amendment.
– The arguments used in connexion with this amendment show how people will cling to an established practice, not because they can bring anything forward to justify it, but because, since it has been, it always must be. Honorable senators who argue in this way will never dream of extending the same principle to other cases that are quite analogous.. Two classes of persons at once occur to one’s mind - pilots and enginedrivers. An engine-driver has to secure a Government certificate, even though he works upon a private railway.
-Colonel Sir Albert Gould. - The honorable senator should bear in mind that the employer can engage any engine-driver that he thinks fit.
– And, in the same way, the Government will only issue pilots’ licences to those whom they see fit, and, without the Government licence, no pilot will be able to get an engagement. Honorable senators opposite would never propose that an engine-driver should be made liable to a pecuniary penalty to cover damages caused by his negligence. No one ever dreams of asking the Government who give an engine-driver’s certificate to be responsible for damage caused by his neglect or want of skill. But a Government can withdraw his certificate for such time as it pleases. I take again the case of the master of a ship who is put in charge by the owners. He may take the vessel into unknown or partially chartered seas, and, as the result of his negligence, the ship may be lost or damaged, but honorable senators opposite would not make the master liable for pecuniary damages. They would consider it sufficient that he should be -liable to be discharged, or to have a charge of criminal negligence brought against him. A similar charge would lie against a pilot because of the loss of a ship by his negligence or want of skill.
Sitting suspended from 6.30 to S p.m.
– -I do not see why this class of Government servant should be picked out to be dealt with differently from other classes of Government servants. If we do not make them liable for civil damages for any injury they may do, that does not mean that they will not suffer for wrong-doing. There are severa1> ways by which they can be made to suffer. If public servants, they can lose their positions; or they can be fined or reduced in grade ; or, if criminal negligence can be proved, they can be indicted for an offence. There have been cases in this State where a railway engine-driver has been placed in the criminal dock on account of damage done through his negligence. That risk will always be hanging over the heads of pilots, whether they are Government officers or licensed pilots. Surely that is enough to deter any pilot from being careless. Senator Gould has referred to the law in England. Some time ago it was the law that pilots were liable pecuniarily for damage done.
-Colonel Sir Albert Gould. - At present they have to give a bond.
– But what happened? A number of judgments were obtained against unfortunate pilots, in consequence of which their little homes and everything they had were taken from them. They were practically ruined. There was very little satisfaction even in that, because what would be taken from a pilot under such circumstances would not represent a tithe of the damage done. In the London Trinity House district, and some other ports, the liability of the pilot is limited. Indeed, it was suggested to the Imperial Departmental Committee on Pilotage, which made its report last year, that the amount of the liability should be increased. The Committee, however, did not agree to that. It says in its report, page 76 -
We- cannot agree with this suggestion. We do not consider that it in any way tends to add to the care and efficiency of a pilot to place him under a crushing financial responsibility for the damage he may cause. If a pilot is negligent he can always be dealt with by the pilotage authorities, and it is in our opinion wrong in principle that pilots should have, in addition to the responsibility of their work, the danger of financial ruin just because the profession they follow entails the handling of property of great value.
It is true that legal effect has not been given to this report. There has been no enactment in England taking away the £100 liability; but I venture to say that, whenever any fresh legislation is enacted, the Government of Great Britain will take up the same attitude as this Government is doing. Surely with the knowledge that a charge of criminal negligence may hang over their heads if they do damage, pilots will not be more careless than other public servants are in the discharge of their duties ? Furthermore, it has to be remembered that if there is danger to the lives placed in charge of the pilot, his own life is endangered to a still greater extent, because it would be his duty to stick to the ship to the last. The lives of the passengers and crew would be saved before his. There is a direct conflict between ourselves and the Opposition on this question. We say that the position of the ship-owner, and of those who travel by sea, is sufficiently safeguarded by the Bill as proposed to be amended. Therefore, we cannot in any way meet the view of the Opposition. It does not seem to me that there is need for very long argument, lDecau.se we are diametrically opposed. The Opposition favour pecuniary liability. We do not. There is no reconciling the two opinions.
Senator ST. LEDGER (Queensland) (8.6]. - The question at issue is one between the pilot, the ship-owner, and the public. We have to leave out of consideration the personal incidence, and to consider the interests of the community. When this matter was under consideration on a former occasion, it was pointed, out that the law in every constitutionally governed country makes the Government responsible for the acts of its servants to some extent. But in this Bill, the Commonwealth Government has made itself immune from liability for damages as far as a hard and fast Act of Parliament can do so. In the railway Departments of the States of Australia, engine-drivers, guards, porters, and other officials employed in connexion with the running of railway trains are Government servants. If, through the fault of one of these officers, an accident occurs, the Government is responsible, to some extent. Every State in Australia recognises that principle. Why should the Commonwealth Government seek to relieve itself of responsibility for the neglect of its servants? Arising out of that is a second question - whether we shall relieve the pilot himself of responsibility. I should like to hear some argument as to the responsibility of the master of a ship entering or leaving a port where there is compulsory pilotage. I believe the master is not responsible when he is compelled to take a pilot on board. . The cases on that point are, I believe, more or less clear.
– There is a clause in this Bill which distinctly says that the master is liable.
– The master in some cases is liable, not because he is master, but because in those cases he is part owner. When the Bill was before us on a former occasion, it will be remembered that we looked at the matter from the point of view that from the moment the pilot went on board a ship, he should lae responsible for her. It is clear from the Minister’s own explanation that in Great Britain the obligation remains upon the pilot where there is compulsory pilotage. Honorable senators know that the Imperial Shipping Act of 1894 was considered for a very long time by the ablest shipping authorities in the United Kingdom. It was submitted to several Select Committees, and ultimately was passed through Parliament practically as brought in. The Bill contained a recognition of the principle that the pilot was responsible.
– Could not any injury that was likely to accrue from this cause be covered by insurance?
– I was going to suggest that. When we have relieved the Commonwealth Government of responsibility for the neglect of its own servant, whom we force the liability upon the ship-owner, if we lay the responsibility on the pilot to the extent of £100 where negligence is proved the pilot will not be ruined. He will simply insure himself. Section 620 of the Merchant Shipping Act of 1904 reads -
A qualified pilot appointed by the Trinity House who has executed a bond under this Part of this Act shall not be liable for neglect or want of skill beyond the penalty of the bond, and the amount payable to him on account of pilotage in respect of the voyage in which he was engaged when he became so liable.
In the Merchant Shipping Act of 1904, and amending Acts, and other shipping Acts passed in the Dominions, the principle has been adopted that, when the Government have relieved themselves contrary to the common law, and other law, teo, from all liability, their servants shall have some pecuniary responsibility. Of what use is it to say that a pilot will be liable to an indictment for negligence, or that we can put him in gaol? Why should we put this liability on the master of a ship when we have compelled him to accept a pilot? This matter was brought to an issue because of what happened in the case of the Eastern and the Waipara There, the Queensland Government was mulcted in heavy damages because of the neglect of the pilots. I believe that the pilots who went on board those two vessels were practically compulsory pilots. The Senate virtually followed the action of the Queensland Government by passing a provision which relieved the Commonwealth from liability for damages in such cases.
-Suppose that a ship was lost as the result of the negligence of the pilot, would you award the full cost of the ship against the pilot?
– Since you cannot give a complete remedy, why give afragment of a remedy ?
-Because of the sense of responsibility which attaches to the position. The pilot can insure himself. It is well for the pilot to know that all the time some responsibility attaches to him for the faithful performance of his duty.
-If he could insure himself against the liability, he would not be there.
-Possibly the contract will require the insurer to see that he is capable of performing his duty. It is quite right that an insurance company should have the privilege of coming in and, by proving that a pilot was drunk or incapable, saving themselves from the liability to pay. In passing this provision originally, the Senate made what I think was a just compromise - just to the Commonwealth and not unjust to the pilot.
-Would you set a penalty of £100 up for£100,00 worth of damages?
-I admit all that, but it is some restraint.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [8.28].-The Minister, in defending this clause, stated that a Committee at Home which had to deal with the question of amending the Navigation law, recommended that there should be no penalty imposed upon the pilot in respect of any negligence or want of skill on his part. The honorable senator said it had been suggested that the responsibility should be increased, but there was a strong feeling that it was altogether wrong to place a liability of this character on the pilot. I happen to have with me a copy of the last Act dealing with certain recommendations of the Maritime Convention -the Maritime Convention Act of1911 - and it may be regarded, I think, as the last expression of opinion by the Imperial authorities on the question of liability. The Act was assented to on the16th December last, and it does not contain a word dealing with the question which Senator Pearce said had commended itself to thepeople of the United Kingdom. We are faced with the position that this provision is in direct conflict with the Merchant Shipping Act of1894, and that, although the Imperial authorities, as late as December,1911, dealt with responsibilities and liabilities in maritime affairs, they did not deal with this particular question. That shows clearly that it could not have been a question on which there was a strong opinion in favour of making an alteration. I think, therefore, that honorable senators might very well discount all that the Minister said on this point. I also asked Senator Pearce whether the Minister of Trade and Customs had an interview with the Port Phillip pilots or their representatives as to the clause, and he replied, “ I will tell you directly all about that,” but we have not heard a word from him yet. I challenge him now to say whether it is not correct that the Port Phillip pilots or their representatives waited upon Mr. Tudor and requested that this liability of £100 should be retained, and that they have not sought by any means to be relieved from the responsibility. If that is correct, then who is asking for this alteration? Is it a high matter of policy which the Government should attempt to place before the people of the country, and which did not occur to them when the Bill was previously under consideration here? The Minister also told us that we license engineers to take charge of machinery, but the Government are not called upon to be responsible for an act of negligence. Now, the people who are responsible for any mistake are the employers. In this case the Government will not employ the pilots, but will give them a certificate, and say to the masters of the ships, “You must take the first pilot who comes to you with our certificate.” A man who has occasion to employ a certificated engineer can please himself as to which engineer he shall engage. But the first pilot who comes along will have to be taken whether the ship-owner believes him to be competent or not. If a State Government choose to license a man, and put him on the railways, they have to accept the position of an ordinary employer in regard to his servants, and to see that they employ only persons who are competent. The Government are making the pilots public servants, and in doing that they should be prepared to be responsible for the negligence of those individuals. The ordinary and clear principle of common law is that a master is responsible for the misconduct of his servant, where the latter is acting “within the duties that are confided to him, but here the Minister seeks to take away from the pilot a small responsibility - a line of ^100 - and in defending that proposal he says that the pilot will be liable to lose his licence, and also to a criminal prosecution for neglect of duty. Criminal negligence or carelessness differs from negligence or carelessness which may not be criminal. It is proposed to take away a small responsibility from the pilot, and to make careful provision that the Commonwealth shall not be liable for any damage or loss caused by neglect or want of skill on the part of its servants, and the responsibility - in opposition to the principle which exists to-day in Great Britain - is to be thrown on the owners of the ship. As the law stands to-day, if pilotage is compulsory and a pilot has charge of a ship, there is no responsibility on the part of a ship-owner for any loss which may be sustained in consequence of want of skill or neglect on the part of the pilot. We are now asked to reverse the Law, as we shall be able to show clearly on a later clause which, in a very misleading way, refers us to the Merchant Shipping Act as the authority for its appearance in the Bill. We should be better advised to adhere to the clause as originally passed by the Senate, instead of striking out in this new line, which, so far as I know, has not been followed in any other British Dominion. We are asked to be satisfied with the statement of the Minister that a recommendation has been made that the pilot should be relieved of liability ; but the Imperial authorities dealt with the recommendations of the Convention only last year, and did not attempt to make any change in the liability of pilots. We should not make the change now proposed without very good reason, and place shipowners in the position of having to pay for damage due to the negligence or want of skill of people who are thrust upon them. The Minister may contend that since the pilot will be subject to the authority of the master, and since the master is a servant of the ship-owner, the ship-owner should be responsible. That may be a very ingenious contention, but we should pass a reasonable and an equitable law, and make every person accept responsibility ot some kind for his own negligence or want of skill. If, in addition to a probable loss of employment, the pilot were subjected to a pecuniary liability, the tendency would be to make pilots more careful in the discharge of their duties.
– Senator Gould has not taken into consideration the risks which pilots have to run. He is aware of the dangers which have to be faced in taking a ship into Newcastle, and he knows that once a vessel is inside the harbor she is constantly exposed to accidents because of the congested condition of the shipping, and the fact that vessels are continually moving from shoot to shoot, and from wharf to wharf. If in such circumstances a pilot is to be liable to a penalty of £100 in the case of every accident, a man having three accidents in a year, and getting a salary of ^300, would be working the year round in order to pay penalties charged against him.
– The honorable senator is not suggesting that that would be the average number of accidents?
- Senator Millen must admit that it is a difficult matter to pilot vessels through the port of Newcastle, and that those in charge of vessels in those ports are constantly meeting with accidents.
-Colonel Sir Albert Gould. - I recognise that it is necessary for those in charge of vessels in that port to exercise very great care.
– They take all the care they possibly can. When Senator Gould is asked for his advice, how would he like to be held responsible if he did not prove satisfactory?
-Colonel Sir Albert Gould. –If I am negligent or incompetent, I am responsible.
– If the honorable senator is incompetent, that is proved when his case gets into Court, and a decision is given against him. I want to know why a pilot, who is a Government servant, should be asked to incur any liability which is not imposed upon any other public servant ? Senator Gould has been speaking of licensed pilots. In the past, they were entitled to every penny they earned, and they got it, with a slight deduction for collection, but we are dealing here with people who will be working for an annual Salary, and if the same results follow in Victoria that have followed elsewhere, the Government will make a profit out of the pilots in this .port.
– Why should not the Government be responsible in that case?
– How could we make the Government responsible? A vessel is being brought up the Yarra, and another vessel is being taken down the river. The pilot in charge of one of the vessels sees that there is danger of a collision. He knows that the lesser risk to run is to starboard his helm, instead of porting his helm. He does so, and damage is caused to the extent of ^50. But if he had ported his helm, which would have been the right, thing to do, the damage ‘resulting might have been ,£500. Are we going to hold him responsible for using his best judgment, getting his ship off with the least possible damage, and perhaps- saving the owners of the other ship a considerable amount of money?
– Is there not a Court to deal with such cases?
– We shall want these men to be piloting ships, and not to be attending a Court, where they can do very little good. We have been told by the other side that, under the Bill, shipmasters will be compelled to take the first pilot offering. Do honorable members opposite contend that outside Sydney Heads, The Marrows, or the Rip, we should have twenty or thirty pilots stationed, so that the master of a vessel may be able to make a choice between them ? The Government guarantee that every pilot given a licence will be up ;to a certain standard. These men must pass the examinations prescribed by the regulations. A pilot must be a master mariner. He must have served a certain number of years on sailing ships, and so many more on steamers. He must be physically capable, his eyesight must be up to the standard, and may be tested at any time.
– Can the honorable senator say how many penalties of .£100 the pilots at Port Phillip have rendered themselves liable to?
– I do not know, but I do know that under such a provision as that contained in the clause as it passed the Senate, pilots have had to go through the Insolvency Court, and have lost their positions as well. We are asked why pilots do not insure themselves against this risk? They would have a very hard job to do so, whilst the ship-owner can always insure against damage or loss, and it has to be met by the underwriters, who take the risk. I do not see why pilots should be treated differently from public servants generally. If Government employes engaged in other occupations make mistakes which result in damage, they are not made liable to a pecuniary penalty. The Port Phillip pilots will have little need to complain in connexion with this matter. They will take ships coming through the Heads, and over the broad waters right up the Bay, but the compulsory pilots will drop the vessels when they get into the narrow waters, . and they will then be taken in charge by the river pilots, who will bring them up the river. The compulsory pilots here will not be exposed to the same chances of collisions as will the pilots in Sydney, Newcastle, Adelaide, and other ports that could be mentioned. I may say that the Adelaide and Port Fairy pilots strongly agitated to induce the South Australian Parliament to relieve them from the £100 penalty provided for under the State laws. I am sorry that some honorable senators should be prepared to impose upon pilots a responsibility which they are not prepared to accept in their own case.
– I was waiting for an answer from the Minister to the pertinent question addressed to him by Senator Gould, as to whether the pilots of Port Phillip had addressed any communication to the Government with respect to their attitude towards this clause.
– I am not aware of any.
– The question appeared to me to be very pertinent, because, in discussing an earlier provision of the Bill, Senator Pearce made a most pathetic appeal to the Committee to do something because he had received a communication from the pilots of Port Phillip to the effect that they were in favour of it. If their view constituted so potent an argument on that occasion, it should be equally important that we should know their attitude upon this question. I am not aware that I am under any necessary restraint with respect to a communication made to me on the subject, and I may inform the Committee that the Port Phillip pilots desire that a clause which the House of Representatives propose to omit should be retained..
It struck me as a very curious thing that a body of men should come before Parliament to ask for the retention of a clause imposing upon them a liability, but, apparently, there are many curious things afloat as well as ashore. I was very much struck with Senator Guthrie’s question as to why pilots should be treated differently from other public servants. I answer the question by putting another, and I ask Senator Guthrie to tell me of any provision under which the public servants of this or any other Government are exempt from responsibility for the consequences of their own negligence.
– They are not liable in a pecuniary way.
– The honorable senator is wrong. I can sue any public servant whose neglect of duty causes me to sustain a loss.
– The honorable senator will be able to sue a pilot under this Bill.
– No, because we are now asked to accept an express provision relieving pilots of liability, and in that way making the difference between pilots and other public servants to which Senator Guthrie so strongly objects. If the driver of an engine upon any of our railways, is guilty of negligence, as the result of which I suffer loss, I can proceed against that driver for damages.
– Not for civil damages ?
– Yes, I can. It is recognised, of course, that in the majority of cases it would be useless to do so, because ordinarily an engine-driver would not have sufficient to satisfy a verdict. Senator Guthrie has seemed to argue that by the clause as it passed the Senate we imposed a liability of ,£100 upon pilots. We did nothing of the kind. What we did was to limit the liability of the pilot to £100. If the clause were altogether omitted, the liability of the pilot would be unlimited. The question now is whether there should be any liability at all, and, if bo, upon whose shoulders it ought to rest. I have had great difficulty in determining the question. One requires to ask who is the pilot’s employer at the time an accident takes place. I take it that a ship-owner that does not ask for a bond of .£100 from a ship-master, and it may be said that a pilot is placed in charge of a ship in the place of the master. As the ship-owner takes the responsibility in the case of an accident while the ship is in charge of the master, it may be urged that he should accept the responsibility while it is in charge of the man who takes the place of the master, but it must not be forgotten that the ship-owner has the right to select his own master. If the master he selects proves negligent or incompetent, the shipowner has to abide the consequences of his choice. But he has no choice in the selection of the pilot.
– If a pilot is drunk a ship-master need not accept him.
– I am aware of that, and in reply I ask Senator Lynch another question. When is a man drunk? That is a question which has never been answered yet. If a pilot presents himself in an absolutely incompetent condition the master will very naturally decline to hand his ship over to him, but it is not always possible for a master to tell at sight whether a pilot is competent or not. There are other disqualifications besides intemperance, and I do not suppose that pilots are any more addicted to intemperance than are other members of the community. The shipowner has no choice in the selection of a pilot. Theoretically the Government are responsible for having only competent men in the position of pilots, but the Government cannot always be examining pilots, and there is some element of risk in handing over a vessel, it may be, against the will of the ship-owners to a particular pilot. I suppose there is no hope of getting the Bill amended in that regard, but it dees appear to me that the liability should attach to the Government, who have taken the pilot into their service. The Government are responsible for ‘the competency of the pilot, and if he’ proves negligent or incompetent, the Government should accept the same responsibility as a State Government accepts if one of their engine-drivers, by his negligence, causes an accident which results in loss. In that case damages are paid by the public, and the same principle should apply in the conduct of our mercantile marine.
– Senator Gould was very anxious to know the views of the Port Phillip pilots on the question of the liability of pilots. No such communication as the honorable senator hinted at has, so far as I know, been received from the Port Phillip pilots. I have looked up the evidence given before the Navigation Commission.
-Colonel Sir Albert Gould. - On what date was the evidence taken?
– February, 1905. I have here the evidence of Captain R. Wills, who represented the Port, Phillip pilots before that Commission, and he says on question 16030 -
We do not object to it, but we cannot see what good it is. Of what use is £100 in the ase of the loss of a ship like the Australia? It is only harassing to the pilot to make provision for these penalties. Some ship-owners are inclined to make a somewhat unfair use of them, as they are aware that pilots are very much averse to going to law. . . The provision, by its harassing effect, will probably do more harm than good.
Then we have Mr. J. R. Thompson, pilot in Sydney Harbor. He says on question 8026 (page 308) -
And you also believe that no further exemption certificates should be issued to foreigngoing ships. Do you wish to make any other remarks on the Bill ?- I desire to draw the attention of the Commission to clause 260, which says -
No pilot shall personally be liable in pecuniary damages beyond the extent of one hundred pounds for any damage or loss occasioned by his neglect or want of skill.
The Commonwealth shall not be liable for any damage or loss occasioned by the neglect or want of skill of any pilot.
As we are employed as Government servants on a salary, such a provision would be pretty hard on us.
That was his opinion. Now there is Mr. J. E. Morris, a sea pilot, also of Sydney, questions 8333, 8334-
The only penalties I see are penalties which I should think you would be very slow to imagine would ever be inflicted. Clause 360 says, “ No pilot shall personally be liable in pecuniary damages beyond the extent of one hundred pounds for any damage or loss occasioned by his neglect or want of skill.” You know there is ,£20,000 received. How many pilots are there in the port of Sydney? - Ten. ‘
There are ^20,000 received from pilotage dues. That is ,£2,000 per man ; allowing that you get £1,000 per man, you have £10,000 to put away to meet all claims. £100 is the only penalty inflicted under this Bill, so far as I see, and here you have ,£10,000, and you will increase your salary from £300 to £1,000 and then have enough to meet everything? - We would only be too willing to undertake the upkeep of pilot establishment. We say, as Government servants, that it is undesirable and unfair that the pilot should be held pecuniarily responsible at nil ; we derive no profits from it. A man might be held guilty of a slight error of judgment ; he might, with years of experience as a pilot, say to himself, “Well, I can get through that “ in order to facilitate despatch to vessels, and there might be a little accident. If we had three like that, we would have no salary left.
I come now to question 8338 asked by the Chairman, and the answer to it -
I understand you to say that you object to clause 360? - Yes.
Then we have Mr. J. McCorquodale, Government pilot at Newcastle, question 20272 -
I see nothing in the Act of 1901 of New South Wales that takes away from any person whose property is being damaged the right to sue for the whole amount? - I do not know that it is there; I have not had a look through that Act. In the Victorian Marine Act the pilots are liable for one hundred pounds, and I know one pilot who was sued for a paltry- amount. He is since - deceased. As State servants we should not be made liable.
Further, there is Mr. Fergus Cumming, senior pilot at the port of Newcastle, who was asked - question 24091 - if he had read the- Bill, and answered “Yes.” In answer to an invitation by the Chairman for his criticism upon it, he said -
I think the Bill itself in that respect is perfect, and a fair thing will be done all round. I have also come up here to appeal to you about this £100 penalty. I am talking about Newcastle pilotage now. I do not know anything about other pilots of the Commonwealth ; they have their difficulties, I suppose, the same as we have. I think it is a dreadful thing to make a pilot liable to pay damages up to £100 when you think of the peculiar conditions of this port.
So far as the other pilots are concerned, I have not been able to find any one of them defending this pecuniary penalty. I can only say, as regards the proposal to make the Commonwealth liable, the Commonwealth, in this particular case, is not a common carrier. It is not in the position of a State, the owner of a railway. If the Commonwealth were the owner of a ship, there would be some force in the argument ; but the Commonwealth merely supplies, for the assistance of a ship-owner, a trained pilot to navigate his ship. Wherever there is a common carrier, the liability is upon the owner, and the common carrier in this case is not the Government, who supplies a skilled pilot, but the ship-owner and his servant, the ship-master. There is no foundation for the statement that the pilots are in favour of this, and by the sweeping proposal to make the Commonwealth shoulder the liability of the owner, honorable senators are endeavouring to introduce a state of things which does not exist under any other law in respect to a common carrier.
-Colonel Sir ALBERT GOULD (New South Wales) [9.7].- With all this evidence in1905 before the Minister, he took possession of this Bill, continuing the liability of £100 against the pilots; and now he is arguing thatin1905 there was evidence before the Commission showing that certain pilots were opposed to the liability. He is urging that as a reason why we should accept the alteration. The Government are blowing hot and cold. In1905, the Minister had all these facts before him, and he did not consider then that they should weigh with him so far as to cut out this liability. The other Chamber made an alteration in the Bill, and in stead of giving us some real reasons for that, he falls back on something which happened six years ago, before he took charge of the Bill, six years before he passed the Bill in this Chamber, and persuaded honorable senators to retain that liability. His position is absolutely untenable from any ordinary point of view. Now let me say a word with regard to Senator Guthrie, who was very urgent and insistent upon the unfairness of allowing the pilots to be made responsible for every accident that might happen in a crowded port. To listen to the speech of that honorable senator, one would imagine that this was an attempt to put the responsibility upon the pilots under all circumstances. Nothing of the kind. For an accident that happens through no fault of the pilot, the pilot is not, and never was, liable. It is just the same with the master of a ship. If an accident happens, and it is not through his negligence or want of skill, he is not responsible; and, similarly, the ship-owner and pilot are not responsible either. If it had been proposed that the pilot should be liable to pecuniary damages to the extent of£100 for any damage occasioned while the ship was in his charge, there would have been strong reasons against anything of that kind ; but here it is laid down clearly and distinctly that, before he is liable for any damage at all, it must be by reason of his neglect or want of skill. The pilot has the same right to shoulder responsibility for anything that happens through his negligence or want of skill as anybody else. The honorable senator, speaking of my own profession, spoke as if we had no liability. The law, the medical profession, and every profession has this liability, that, where any damage is caused in consequence of the neglect or want of ordinary skill, care, and attention of the individual, that individual is liable for the damage.
-Did you ever knowof a lawyer who was made liable?
-Yes; I know of many cases. Mistakes have been made by lawyers’ clerks, and their employers have recognised that the mistakes were such as to show a want of skill or want of care, and have made the damage good. I know of cases in which it has been done, and it has been pretty hard on the principal, when he has been away, and has had practically no control over the clerk who has made the mistake.
-But he was not liable.
SenatorLt.-Colonel Sir ALBERT GOULD. - Yes, he was; and if he had been brought before the Courts he would have been made to pay up. I say, therefore, that when you are dealing only with a question of neglect or want of skill, that you may fairly place pecuniary liability on the people concerned.
– Are not all the cases you are speaking of covered by insurance?
– The honorable senator is raising another question. As to the question of putting the responsibility on to the Commonweatlh, I have not argued in favour of that. Under the common law, the Com- monwealth would possibly be responsible unless it made a provision by Act of Parliament to save it from such liability. There is no serious proposal to throw that liability upon the Commonwealth. Senator Millen said that he wanted to find out where the liability should rest when any person suffered injury from the wrongful act of another, and that, when he looked around, he could not see who could be made responsible except the Commonwealth. From a practical stand-point, such a responsibility would perhaps be very undesirable. I am not advocating it, but do strongly object to the position taken up by the Minister, and the illogical way in which he has attempted to bolster up a very wrong, rotten case.
Motion agreed to.
Clause 352 (Non-immunity of owner when pilotage is compulsory).
House of Representatives’ Amendment. - Insert the following new sub-clause (1.) and figure : - “(1.) The duty of a pilot in compulsory charge shall be to pilot the ship subject to the authority of the master, but the master shall not be relieved, by reason of the ship being under compulsory pilotage, from responsibility for the conduct and navigation of the ship.”
– I move -
That the amendment be amended by leaving out the words “ in compulsory charge.”
We want the responsibility of the pilot to apply both to compulsory and licensed pilots. If a licensed pilot is taken on board a ship it is his duty to pilot the ship subject to the responsibility pf the master. Up to the time of the recent Maritime Convention in regard to collisions and salvage, ships crossing the seas came under twenty laws, often totally in conflict. This was regarded as a monstrous state of affairs.^ Hence the Convention. The parties to the Convention included Great Britain, United States of America, Germany, France, Italy, Japan, Norway, Holland, Austria, Belgium, Portugal, Russia, Sweden, Brazil, and a number of smaller powers. Article 5 of the Convention reads -
The liability of the preceding articles - that is to say, the articles fixing the liability for damages in collision upon the ship in fault - attaches in cases where the collision is caused by the fault of a pilot, even when the pilot is carried by compulsion of law.
Clause 352 of this Bill is in agreement with that principle. The Departmental Committee on pilotage, in their report, page 78, paragraph 260, says -
We cannot look with favour upon what prac’tically amounts to the total supersession of the master by the pilot when the vessel is in compulsory pilotage waters. We therefore recommend that the master shall’ at all times be legally responsible for the steering and safe conduct of the ship, and that the pilot, whether he actually handles the ship or not, should be the master’s expert assistant. It should, in our opinion, be the positive duty of the master to interfere in cases where he is of opinion that -the pHot through ignorance or inability is endangering life or property. There must be, in our opinion, at all times and under all conditions one supreme authority on board, and that authority must be the master.
The amendment now under discussion is declaratory of this principle, that at all times the pilot must be regarded as acting under and subject to the authority of the master, and that the latter, notwithstanding the presence of the pilot, still remains in enarge of the ship. It is true that up to the present Great Britain has not given legislative effect to this article of the Convention. She has, however, become a party to the Convention, and is under a moral obligation to bring her laws on the subject into conformity with it. I think we can say that we have fully discussed this question, which really arose on the previous amendment. I do not propose, therefore, to enter into it more fully.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [9.17]. - I recognise that the proposal of the Minister is quite logical, having regard to the. attitude we previously took up concerning, the piloting of a ship where piloting is not compulsory. If a master of a vessel chooses to secure the services of a pilot he should be in the same position as where a pilot is compelled to be taken on board. But the weakness of the position withregard to the clause we have dealt with is that the master is compelled to receive the first, pilot offering himself. In Great Britain if the master of a ship takes on board a pilot in waters where he is not compelled to do so the pilot is in the same position as any other employ^, and the master therefore is responsible for any mistake which may occur. The master may please himself whether he engages the pilot or not. If the master could exercise a choice in regard to the pilot taken on board there would not be somuch objection to allowing his responsibility to stand.
– It would be im. possible for the master to choose his pilot when coming into a port from sea-
.- The first pilot who offers himself may be, to the master’s own knowledge, inefficient. He may not desire tohand his ship over to that pilot. But he has to do so by virtue of clause 349. Senator Pearce has referred to the Maritime Convention and its recommendations. He told us quite correctly that the British Government has not yet given effect to those recommendations. They have had an opportunity of doing so, but have deliberately abstained from passing a law such as Senator Pearce recommends to us..
– Those whohave been advising me on this matter havemade a note of Senator Gould’s remark with respect to the master of a ship being compelled to take the first licensed pilot who offers his services. I propose to give a promise to recommit clause 349, with aview to considering that point. We propose to see whether it is not possible to’ re-! strict the obligation to take the first pilot who offers to compulsory pilotage.
– It would be absolutely unworkable.
– At any rate, ‘ the matter may as well be looked into. We can, if we think it desirable, make a consequential amendment upon the amendment of the House of Representatives. The recommittal will give Senator Gould and others an opportunity of discussing the matter.
Motion agreed to.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [9.27].- Honorable senators are not in a position to realize, from clause 352 as it stands, what the law is a’t the present time in regard to pilotage. Under sub-clause 2, as the Bill left the Senate, the master or owner of a ship was not exempt from liability for any loss or damage occasioned! by the fault or want of capacity of a pilot by reason of the fact that the employment -of the’ pilot was compulsory. A side-note to the clause refers us to section 633 of the Merchant Shipping Act; but honorable senators who refer to that section will see that it places the master or owner in an entirely different position. The section reads -
An owner or master of a ship shall not bc answerable to any person whatever for any loss -or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that -ship within any district where the employment of a qualified pilot is compulsory by law.
Under this Bill, the owner is to be responsible. That is a reversal of the existing law, which provides that, where the employment of a qualified pilot is compulsory, the owner or master “ shall not be answerable for any loss or damage.” We are turning our back upon that provision. What I am now complaining about is that honorable senators, reading the Bill, would be under the impression, having regard to the side-note, that clause 352 was a transcript of section 633 of the Merchant Shipping Act. As a matter of fact, it is not a copy of that section. Instead of saying that the master or owner “shall not be answerable,” it says that the master or owner “ shall not be exempt from liability.” It is unfair that honorable senators should be confronted with statements that are calculated to mislead. The clause reverses the whole position. No doubt, that is the reason why honorable members of another place were asked to make this amendment. We are deliberately adopting a principle which will throw the whole liability on the ship-owner when he faas been obliged to put the ship in charge of a, pilot/ who’ will be a public servant, but for whose conduct the Commonwealth is to accept no responsibility. Further, the pilot himself is to have no responsibility; but we are saying that the master shall be responsible, and that therefore his ern. ployer shall be responsible. That is a moat unfair position in “which to put’ shipowners. It is all very well to say that the master can put the pilot on one side whenever he thinks fit, but that is a big responsibility for a master to take, especially when he finds himself and his ship in strange waters. It is absolutely unrighteous to make the master responsible for the acts of a person where he has practically no control.
– 1 under-‘ stand that the English law at present is that if a ship has on board a compulsory pilot, and collides with a ship lying at anchor, the master or owner of a ship which has not a compulsory pilot has no resource against the ship which has, even if the latter is to blame. Supplementing what I said just now as ‘to the International Maritime Convention, I wish to mention that the Departmental Committee which I referred to before recommended the abolition of the defence of compulsory pilotage -
There is, however, no provision in the present Pilotage Bill ra.12, to this effect. Upon the question of the defence of compulsory pilotage, Sir Norman Hall, speaking on behalf of the Ship-owners’ Parliamentary Committee, pointed out that the Liverpool Steamship Owners’ Association had made their assent to the principle of the abolition of that defence dependent entirely upon a satisfactory international agreement being arrived at on the subject of the limitation of the ship-owners’ liability.
That quotation is taken from the Shipping Gazette of 26th July of this year. It will be seen that in this respect, at any rate, we are following the latest agreement - practically an international agreement - which has been arrived at, and we have the authority of the gentleman whom I have quoted, and who represented one of the biggest shipping associations in the United Kingdom, that they gave their assent to it subject to an international agreement. It seems to me that we are on perfectly safe lines in making this alteration, and that before long other nations will make this alteration in their shipping laws, which has been practically agreed upon by ‘ their representatives, and only awaits- legislative action.
. - I assume that the only reason which the Minister can have for using the words “under compulsory pilotage” in this amendment is that, in his opinion, the law as it is to-day, does not relieve the master from the responsibility that attaches to his position if the ship is under that kind of pilotage which is not compulsory. I understand that he is leaving in the words “under compulsory pilotage,” because he considers that it is quite safe not to strike them out.
– That is so.
– I would sooner see the words struck out. If they were omitted, it would make no difference in law or result, but the provision would read a little more clearly -
The duty of a pilot shall be to pilot a ship subject to the authority of the master, but the master shall not be relieved by reason of the ship being under pilotage from responsibility for the conduct and navigation of the ship.
I think that he ought to be.
– I am informed that the other is the established law, and that we only need to make this exemption. This is the only case in which he is personally exempt.
– If we leave out “ compulsory,” we shall recognise the established law. We should say that the master shall not be relieved from responsibility if the ship is under pilotage. I see no reason for retaining the words, and their omission cannot do any harm.
. -I understand that as it has been the established law and practice of all countries that where a ship is under compulsory pilotage that relieves her from liability for damages, it was thought advisable to expressly state that exemption no longer exists under this law, but as Senator Clemons says, it is apparent that if the word “ compulsory “ were left out, it would not make any difference in the effect of the law. I move -
That the amendment be further amended by leaving out the word “ compulsory,” line 5.
Senator Sir JO SI AH SYMON (South Australia) [9.41]. -I am afraid that we are getting into rather a tangle on this question of compulsory pilotage. I think it was a mistake to eliminate the words “ in compulsory charge “ in the first line of the sub-clause.
Senator -Clemons. - That amendment has been carried.
-My honorable friend now suggests the omission of the other word “ compulsory,” because we have eliminated the words “ in compulsory charge “ in the first line. I am not sure that there might not be some logical reason for doing that, but 1 think that the whole sub-clause ought to be reconsidered. It involves an alteration of the law. If it is intended to alter the law in that respect by retaining the liability of the master, although the ship is in the compulsory charge of the pilot, then it is quite right to express it as it was in the unamended subclause -
The duty of a pilot in compulsory charge shall be to pilot a ship subject to the authority of the master -
Because the law before that was that the pilot was not under the authority of the master.
– Merely an adviser.
– That is all. Where pilotage is compulsory, the master has no authority over the pilot, subject to a certain qualification, which is not very material. It is proposed here to say that the liability of the master or the ship shall remain, notwithstanding compulsory pilotage. Then this is a very proper amendment, because it places the pilot under the authority of the master. If a ship is coming into a port where pilotage is not compulsory, and the master chooses, for his own convenience, or because he is not familiar with the port, to take a pilot the pilot is his servant, and the master remains liable for any error which the pilot may commit, or any damage which may ensue. But where pilotage is compulsory, the master is relieved of all responsibility for the pilot. And that is the foundation of the exemption of the liability of the master. The motive of the amendment seems to be overlooked, and the result will be that we shall negative what is intended.
– No; we are including it.
– The present law is, as the Minister pointed out, that where pilotage is compulsory in a port, a ship which, under that compulsory law, takes a pilot, is exempt from liability for accident, although the pilot may be to blame. The corollary of that is that the master has no responsibility for the pilot, and no right to interfere with him. That is the essence of the liability from which a ship in charge of a compulsory pilot is exempt. That is going to be altered by saying that, even if the ship is in charge of a compulsory pilot, the master will be liable for any damage which may result. If we make that provision in sub-clause 1, the amendment is essential. If the master is to be liable for damages resulting from the negligence of the pilot, he should have some control over the pilot. It is for that reason the first sub-clause says -
The duty of a pilot in compulsory charge shall be to pilot the ship subject to the authority of the master.
All that we are legislating for in this case is compulsory pilotage. It is entirely superfluous to say, as we shall say if we omit the word “compulsory,” that the pilot shall be subject to the authority of the master in ordinary circumstances.
– There is no harm in saying it.
– If it be superfluous, it is undesirable, since it may give rise to controversy and litigation. The sub-clause goes on to say - but the master shall not be relieved, by reason of the ship being under compulsory pilotage, from responsibility for the conduct and navigation of the ship.
That is provided for in sub-clause 2.
– No; it is a different question. One refers to the conduct and navigation of a ship, and the other to loss or damage caused through the neglect or want of skill of the pilot.
– It seems to me that it amounts to the same thing.
– No; a man may break the rule of the road without causing any loss or damage.
– It is only when loss or damage results that any question would arise.
– A man might be penalized for breaking a rule of the road when no damage was caused.
– The honorable senator may be right, but I should like him to inquire into the matter. I never knew of any case of the kind on land or sea. There is a rule of the road on land as well as at sea.
– Was there never an unfortunate client of the honorable senator’s who was fined for not having a light?
-That is a different thing altogether; though, of course, no client of mine was ever fined for not having a light. I desire only that the matter shall be made quite clear. I am entirely averse to altering the principle which at present exempts the master and ship from liability if there is a compulsory pilot on board; but if we are going to make the master liable, we must place the pilot entirely under the master’s orders.
. -I find that Dundas White in his work on the Merchant Shipping Acts of 1884-1897 has a foot-note to this clause, in which he states -
The exemption contained in this section is founded on the commonlaw, and notwithstanding section 572 the same principle applies to similar cases of damage done abroad, provided that a pilot was compulsorily in charge of the ship. But it does not apply where though the employment of a pilot was compulsory he was not himself in charge but only in the position of adviser to the master.
Where pilotage is compulsory the exemption applies, but it does not apply where’ the pilot is not absolutely in charge, but merely acts as an adviser to the master.
Motion agreed to.
Amendment, as amended, agreed to.
Amendments of clause 356 agreed to.
Clause 377 (Cancellation or suspension of certificate).
House of Representatives’ Amendment. - Omit the clause.
. -I move -
That the amendment be agreed to.
This clause has been the subject of lengthy correspondence with the Imperial authorities, who strongly objected to it, as honorable senators will see if they refer to the printed memorandum on the Board of Trade objections. We have been given what really amounts to an assurance that the Board of Trade will not in future return to a master or officer any certificate which has been cancelled or suspended by a Commonwealth Court of Marine Inquiry without first communicating with us on the matter. That is really all that we desire, and it is, therefore, proposed to omit the clause.
Motion agreed to.
Amendment of clause 378 agreed to.
Upon complaint on oath by the master of a ship in port that any person belonging to or employed on or being about or upon the ship -
is insubordinate ; or
refuses to work; or
is inciting any other person to commit an offence against this Act, any police stipendiary magistrate of the Commonwealth or of a State may cause such person to be apprehended by any police officer and brought before him, and on proof of the complaint he may commit the offender to prison for a term not exceeding three months, with or without hard labour.
House of Representatives’ Amendment. - Omit the words “ and on proof of the complaint he may commit the offender to prison for a term riot exceeding three months with or without hard labour.”
– I move-
That the amendment be agreed to.
The words proposed to be omitted are in direct conflict with the penalties already provided in clause 99 for the particular offences specified.
-Colonel Sir ALBERT GOULD (New South Wales) [9.56].- If no alternative to a money penalty is provided for it will become necessary in the event of a fine imposed not being paid to take further proceedings for the punishment of the offender by imprisonment. No alternative is being provided for here, and it, might be well to make an amendment providing an alternative of imprisonment, in default of the payment of the penalty.
– It is unnecessary to provide an alternative, because under the Acts Interpretation Act where a pecuniary penalty is provided for, in default of payment, imprisonment for a certain period in proportion to the penalty is laid down.
Senator -Lt.Colonel Sir Albert Gould. -I wasunder the impression that where afine in such cases was not paid it was necessaryto take further proceedings before the alternative penalty could be imposed.
– I think that is not so.
Motion agreed to.
– I move -
That the Senate do now adjourn.
In submitting this motion I should like to call the attention of honorable senators to the very slow progress we have been making, and also to the fact that we ought to be nearing the end of the session. If we desire to avoid sitting late, and prob ably all night on one or two occasions in the near future, and also sitting after Christmas, some alteration of our arrangements must be made. We shall have to take into consideration the advisableness of sitting on Tuesdays, and I should like to give honorable senators timely notice, not as a threat, because there is no necessity for threats at this stage of the session, and I have to admit that honorable senators have been very reasonable. I do not think that they have abused their privileges in any way, and up to the present our debates have always been of a friendly character. But we must get the business through, and if we cannot make more progress within the next couple of days, we shall have to sit next Tuesday. I hope, however, that that will not be necessary. If it is, I shall be prepared to submit a motion before the end of the week.
– Hasthe VicePresident of the Executive Council considered the advisableness of taking Thursday evening for Government business?
– I have given an assurance to honorable senators in charge of private business that they shall have a day, and I shall not object to giving them Tuesday. As long as there was a quorum present we could go on with private business, and those who were not interested in it need not come.
– The statement made by the VicePresident of the Executive Council cannot have occasioned any surprise, because we must all recognise that, as the session draws to its close, extra time will be required by the Government. I suggest tothe VicePresident of the Executive Council, however, the advisableness of utilizing the time now occupied with the very interesting discussions on private business. Those who wish to discuss the questions to which I have referred might arrange with the President for the occupancy of another room in this building in which to carry on a debating club, and I have no doubt that the Chairman of Committees would undertake to preside over them on such an occasion. The attitude of most of us with regard to private business is well illustrated by the suggestion which the Vice-President of the Executive Council has made, that those who wish to take part in such discussions might help to form a quorum on Tuesday. I suggest that to deal with private business. in that way is making a farce of it. Whilst the debates may be very interesting, they have no practical effect on the course of legislation. If the Minister is called upon to alter the ordinary arrangements for next week’s sittings, I trust that he will not ask us to come a day sooner than is necessary except to deal with public business.
: -I shall do all I can to expedite the passage of the Navigation Bill with which we have been dealing, and to assist the Government in other respects. But I do not agree with whathas been said with regard to. private business. . Honorable senators are entitled to more liberaltreatment than the Vice-President of the Executive Council has suggested’. There are some important matters that certainlycannot be disposed of in one afternoon. If I were to be egotistical, I might suggestcertain motions standing inmy name, and there are otherhonorable senatorsless egotistical than myself ‘ who mighthold similar opinions with regard to their business. But we shall certainly do. all we can to help forward Government business.
– Speaking entirely for myself, I deplore the possibility of the Senate being driven to sit all night, and hope that we. shall not have such sittings during the remainder of this session. May I offer a. suggestion that I intend to be helpful to the Minister? If he had intimated to-night that it was his desire that we should finish a certain amount of business by to-morrow at 6.30, I have not the slightest doubt that honorable senators would do all they could to assist him. For instance,he might have intimated a wish that we should finish the Navigation Billbefore private business is called on to-morrow. If he made a suggestion of that kind, it would help forward business considerably, and give us a full knowledge of what was expected of us, and of what was likely to happen. I certainly hope that we shall not be called upon to come here on Tuesday to deal with private business. In the first place, I do not think that Tuesday should be a sitting day for the Senate, and, secondly, I think it must be admitted, after the remarks of the Leader of the Senate tonight, that private business may as well be written off as a perfect farce. If itbe necessary for us to come on Tuesday next, let it be to deal with public business.
Question resolved in the affirmative.
Senate adjourned at 10.7 p.m.
Cite as: Australia, Senate, Debates, 27 November 1912, viewed 22 October 2017, <http://historichansard.net/senate/1912/19121127_SENATE_4_68/>.