6th Parliament · 1st Session
The President took the chair at 11 a.m., and read prayers.
Operations in the Dardanelles : Message from the King : Censorship of News.
– I ask permission from the Senate to read a message from the King.
– The GovernorGeneral has received from His Majesty the King the following cablegram, dated Buckingham Palace, 29th April, 1.55 p.m. : -
I heartily congratulate you upon the splendid conduct and bravery displayed by the Australian troops in the operations at the Dardanelles, who have, indeed, proved themselves worthy sons of the Empire.
– Does not the Minister of Defence think that he should immediately make an emphatic protest to the Imperial defence authorities against the system of censoring news relating to the operations of the troops in the Dardanelles, including some of the Australian Forces? In explanation of the question I wish to state that in this morning’s newspaper we have one message with the big head-line, “ What the Turks Claim.” They claim that 400 of the Allies troops have been killed, and that some troops, including Australians, have been taken prisoners. That is reported to be a covimuniqtué issued in Constantinople. At the same time there is not the slightest detail given.
– Order ! The honorable senator must not argue the question.
– I understand, sir, that a certain amount of explanation is allowed in putting a question, and I ask your indulgence. In the same newspaper there is not the slightest detail-
– The honorable senator must confine himself to an explanation of the question.
– I bow to your ruling, sir, but an explanation of the question is necessary. Probably allhonorable senators have seen the newspaper, and the inconsistency of the censoring as shown in the cablegrams has struck them in the same way as it struck me.
– I do not know that we have yet sufficient information on which to base a protest. There can be no doubt as to the wisdom of censoring all news as to the movement of troops until they have been actually landed.
– We all agree to that.
– The wisdom of that rule is shown by the fact that one of the Allies’ transports was torpedoed by an Austrian torpedo boat.
– Was she one of the transports ?
– Yes, but not containing any Australian troops. Honorable senators no doubt will remember reading in the press about a week age that one transport was torpedoed.I should say that it is quite wise on the part of the Home authorities tocensor all news of the movement of troops until they have been landed. Therefore, the Government would not feel justified in making a protest against that act. But there is another phase of this question. Judging from the press, apparently news was allowed to be published in the English newspapers regarding the landing of the troops, whilst we were not informed that the same news could be released here; and we do intend to bring that matter under the notice of the War Office. When the news is allowed to be released in England, which is very much nearer to the scene of operations, certainly we ought to be informed, so that we can release the same news in Australia.
– What about the censoring of news from Constantinople ?
– In a newspaper this morning I read some remarks which did not quite fairly put the position. This Government would not feel justified in making a protest against a rigid censorship until the troops have been actually landed; but once a landing has been accomplished, and the news of the fact has been released in England, certainly we should be informed, so that the same news can be released here. It ison that phase of the subject that representations will be made to the proper authorities in England.
Maximum Age op Employment.
– Is the Minister representing the Minister of Home Affairs yet in possession of the information which was asked for by me yesterday?
– Yesterday I promised to verify two statements in regard to the questions of the honorable senator, and the Departmenthas furnished the following replies: - 1.No regulation restricting the age of applicants for employment has been issued by the Department of Home Affairs.
Department of Home Affairs,
Applications for the following vacancies, accompanied by testimonials and particulars of experience and qualifications, are returnable at the office of the Engineer-in-Chief for Commonwealth Railways, Melbourne, not later than 15th April, 1915. Each envelope should be indorsed, “Application for . “ In every case the age of the applicant must be stated.
Persons (other than those already employed in the service of the Commonwealth or of a State) who are over 35 years of age are ineligible.
It will bo seen, however, that the limitation of age applies only to persons who are not already in the State or Commonwealth Service, and in regard to whom special preliminary training would be essential. The above positions arc in the Traffic Branch, and it is not customary to commence the training of traffic officers after they have reached the age of35 years.
– Has the Minister representing the Minister of Home Affairs yet gone into the allegations contained in articles published in the West Australian a few days ago relative to the conduct of the construction of the western section of the trans-Australian railway’
– The- information has not yet come to hand, but I will endeavour to let the honorable senator have it before the Senate adjourns to-day.
– Has the Minister representing the Minister of Home Affairs yet received from Kalgoorlie a reply to a question I gave notice of on the 14th inst. as to whether the action of the Traffic Branch at the end of the trans-Australian railway was interfering with the operations of the Construction Branch ?
– Inquiries have been made, but the information has not yet come to hand. I will let the honorable senator have it at the earliest possible moment.
– I ask the Minister representing the Minister of Home Affairs the following questions: -
-I have not the desired information at hand, but I shall endeavour to let the honorable senator have it prior to the adjournment of the Senate.
asked the Minister representing the Minister of Home Affairs, upon notice -
Smith contract for the construction of earthworks from the 92-miles peg to the 106-miles peg, Transcontinental Railway Line?
Teesdale Smith for side-cuttings?
– The following information has been supplied by the EngineerinChief for Commonwealth Railways : -
– Relative to the map of Australia, which was prepared under the direction of the Home Affairs Department, and a copy of which was exhibited within the precincts of the Senate recently, I ask the Minister representing the Minister of Home Affairs whether a copy of the map is obtainable by the public, and, if so, where and at what price?
– I will have inquiries made, and let the honorable senator know at a later stage.
The following papers were presented : -
Dominions Royal Commission - Fourth interim report.
Land Tax Assessment Act 1910-1912. - Regulation amended. - Statutory Rules 1915, No. 53.
River Murray Waters Agreement : Memorandum by Mr. Elwood Mead, Chairman of the State Rivers and Water Supply Commission, Victoria.
Allocation of Refrigerated Space
asked the Minister representing the Minister of Trade and Customs, upon notice -
In view of the statement appearing in the press of Australia that the Customs Department will control the allotment of refrigerated space in overseas steamers in future, will the Minister for Trade and Customs endeavour to see that the apple export trade of the Commonwealth is interfered with as little as possible, in order that orchardists may be able to place their products on the English market as usual?
– The answer is -
In the allocation of refrigerated 6pace first consideration must be given to requirements of the Imperial Government in regard to meat for the Military and Naval Forces. Subject to those requirements every endeavour will be made to provide for the shipment of fruit and any other perishable produce offered.
Motions (by Senator Ready) agreed to-
That leave of absence for one month be granted to Senator Turley, on account of urgent private business.
That leave of absence for one month be granted to Senator Ferricks, on account of urgent private business.
Bill returned from the House ofRepresentatives with amendments.
Motion (by Senator Pearce) agreed to-
That so much of the Standing andSessional Orders be suspended as would prevent the message being at once considered, and all consequent action taken.
That the message be considered forthwith.
In Committee (Consideration of House of Representatives’ amendments) :
Clause 4 -
Where a person, being a British subject but not being a person subject to the Naval Discipline Act or to military law, is alleged to be guilty of any offence against this Act which is triable by court martial, he shall be entitled, within six clear days from the time when the general nature of the charge is communicated to him, to claim that he be tried by a civil Court instead of being tried by court martial, and where such a claim is made, the offence shall not be tried by court martial.
House of Representatives’ amendment. - Omit all words from “Where” to “court martial” (lines 1 to 12) and insert in lieu thereof the following words - “ (6) Notwithstanding the preceding pro visions of this section, no person other than an alien enemy or a person subject to the Naval Discipline Act or to military law, shall be tried by court martial for an offence against this Act.”
When the Bill left this Chamber, the clause provided that any person could be tried by court martial, but that, within six days of his arrest, he could claim to be tried by a civil Court. The new paragraph which has been inserted in another place sets out that a civilian cannot be tried by court martial, but must in all oases be tried by a civil Court.
-It is mandatory now instead of being at the option of the person accused. I move -
That the amendment be agreed to.
– When this Bill was previously under consideration in Committee, the Minister had before him the provisions of the Defence of the Realm Bill, in the form in which it had been submitted to the Imperial Parliament. He pointed out that, in the original draft of that measure, regard was necessarily had to the possibility of an invasion of Great Britain itself, and that it was deemed advisable to afford an opportunity for the trial of cases by court martial, because it might;-, happen that the ordinary civil tribunals would not be available. He emphasized the fact that, though the possibility of an invasion of Australia was very slender, it was nevertheless desirable that we should provide that, throughout the Commonwealth, or any specified portion of it, an accused person might be tried by court martial. Do I understand that the proposed new paragraph does not derogate from that position - that it will still be competent for the Governor- General to declare any area in Australia an area within which offences may be tried by court martial?
– It does not derogate from that position.
– I have only had’ an opportunity of seeing the amendment since the message was received from the other Chamber, and, consequently, I have not had time to look at the original provisions of. the Bill with a view to appreciating its exact effect. But it seems to me that, in another place, the Government might have stressed more than they did that the emergent conditions under which such a proclamation would issue would be only of the character I have just indicated, namely, the possibility of an invasion of this country or of any portion of it. In such circumstances, everybody would recognise the wisdom of providing that trials for various offences should be by court martial. I do not think for a moment that the Government desire to deprive the ordinary citizen of a civil trial, such as he has under normal conditions. When the measure was last before us, the Minister clearly indicated the scope of this seemingly extraordinary provision. In the few words which he uttered, he brought home to us the necessity for it. But the Government might have stressed that aspect of the case a little more than they did in another place, and the Bill would not then have met with so much opposition. I think this new paragraph is a provision which should appear in the Bill at this juncture. Nobody can foresee what may be the condition of affairs, even in this remote portion of the Empire, at no distant date. It is all very well to flatter ourselves that we are secure from invasion, but there are always possibilities. Anything may happen in the North Sea, and it is quite possible that some German vessels may break through there. As the Minister has moved that the amendment made in another place he agreed to, I think that the Committee will be justified in supporting him.
Senator McDOUGALL (New South provision has been inserted in the measure. I object to any private individual being tried by court martial, because I contend that in such circumstances he does not get a fair trial. My experience of courts martial teaches me that, under them, there is one law for the private and another law for the officer. Unfortunately that fact has been brought home to us in too many instances. To make civilians liable to trial by a military tribunal under officer-made law would be unfair
– It would be justifiable only under emergent conditions.
– I say it is not justifiable under any conditions.
– It would be justifiable only when the civil Court could not operate.
– We could make it operate.
– How could the civil Courts operate in Belgium when the Germans are there?
– It is a case of Buckley’s law, then. I am glad to avail myself of this opportunity of showing how men in the lower grades of tho service are treated by courts martial. Recently I had occasion to bring under the notice of the Minister a case in which fi sergeant was charged with being drunk whilst on duty. No doubt he was drunk, but it was late at night. He was an engineer on a small vessel in Sydney Harbour, and he took the vessel from Sydney to the forth and back again all right. That man received an awful punishment, I consider. He was disrated - that is, put back to the position of a corporal, or Something of the kind, which was tantamount to imposing upon him a fine of £15 or £20 a year. The authorities even went back to 1884 to discover that when he was in the British Navy he had been guilty of a slight offence.
– A civil Court would have done the same thing.
– But who knows tho regulations under the Defence Act - not oven the Minister himself ?
– This man made certain statements to me, and, unfortunately, when the authorities got him before this official tribunal they subjected him to the third degree, and induced him to admit everything. I maintain that he is being severely punished for a very slight offence. As evidencing the diffe rential treatment which is meted out to men as compared with the officers by courts martial, I desire now to direct attention to the case of an officer who was found drunk when coming from the sergeants’ mess. He was certified to by the medical officer, by his commanding officer, and by other officers, as being drunk and unfit for duty. He was taken before the Commandant, who said that he would reluctantly be obliged to dismiss the case because no court martial would convict him.
– What was the name of the officer?
– The Minister has the case before him in hia Department.
– No ; I have not.
– I have had the Minister’s reply on the matter.
– The honorable senator’s statements are very vague.
– All the particulars are to be found in the records.
– I hope that the honorable senator will- give me the name of the officer privately.
– I will, undoubtedly. The Commandant distinctly stated that no court ma”rtial would convict this man, and that, therefore, he was reluctantly compelled to dismiss the case. The officer has thus gone back to his duty, whereas the unfortunate sergeant has been mulcted in a penalty of about £15 a year. This is the sort of justice that we get from military tribunals. I am glad that I have had an opportunity of bringing this case before the Minister, because I was under the impression all the time that his attention had not been directed to it. To my mind there are quite a number of matters which have not been brought under his notice. I admit the Minister cannot give his valuable time to all the small things that ought to be ventilated.
– N/o, I did not say that. I am prepared to consider the case as outlined by the honorable senator at any time.
– Well, I will give the Minister another case, that of a trade unionist who was in charge of a hospital at the German concentration camp at Liverpool. That man was discharged, and a German was put in his place, and although I have received a reply to my representations to the Minister, Ido notthink that he knows anything about it.
– Yes, I do.
– I must remind the honorable senator that he is not really bringing up any matter connected with the amendment.
– I bow to your ruling, Mr. Chairman, and might add that I really expected you to intimate that I was transgressing. I will certainly give the Minister an opportunity of investigating these cases, and feel confident that I can prove everything that I have said in the matter. The papers are on my file in Sydney. I enter my protest here against any civilians ever having to be tried by court martial because I am convinced they do not get a fair deal. I did hope that when the Labour party took its place in the National Parliament of this country, militarism would be a tiling of the past, but unfortunately it has developed to a considerable extent. I think, however, that the system will break down, because it has been clearly proved that our trainee soldiers can fall into their places behind the guns in the forts and elsewhere, and can take their place with the best soldiers in the world.
– Well, that is because of our military system, and now you say it has broken down.
– I did notsay anything of the sort. I am referring to the military system of other countries, the Prussian system, which it appears is to be introduced into Australia. That is the system I object to.
– We have no intention of introducing that system in Australia.
– Well, I heard an honorable senator the other day advocating the establishment of a standing army for Australia of 25,000.
– Who? Did you refer to me ?
– No, but to another honorable senator.
– Yes, and he mentioned1s. 2d. a day as the pay.
– The citizen soldiery is the system best designed for the defence of Australia, and I honestly believe that it has developed to such an extent that we need not have any fear ofan invasion. I take this opportunity of again protesting on behalf of my f ellow workmen against the prospect ofever having to be compelled to submit to the third degree by a military court martial.
– l am one of those who consider this amendment is quite unnecessary. More than that, I think it is: absolutely a blunder, because we are unquestionably in a state of war in Australia, and I ask my honorable friendswho are pleading so earnestly for the trial by a civil jury of every offender in war time, what would they suggest should be the fate of, say, a wealthy spy in Australia who had led the enemy to ourshores ?
– Some say we should treat him gently.
– Yes, and they say that he should have all the privileges of a civil Court, the advantage of the best lawyers of the Commonwealth to defend him, and be able to string out a trial for four or five months if necessary.
– But you believe every man is innocent until he is proved guilty, do you not?
– Yes, of course ; but a court martial would prove a man. innocent just as a civil Court would, if the evidence against him were not sufficient. I hope that those who are urging that the amendment should ‘be agreed to will furnish some stronger reason than thehonorable senator who has just sat down. We are not passing legislation for times of peace, but for times of war, and we should give the Government of the country the power that was originally asked for, and which I believe is required today. I am confident that no Governmentwould use this power unfairly to any section of the community. The fate of the spy ought to be swift and sudden. There should bo no dilly-dallying with law courts, civil or military, when a spy is caught red-handed. A wealthy man in such a position should not be able to take his case from one Court to another, as we find is being done in Australia to-day, and have the opportunity finally of appealing to the Privy Council if he has money enough to go there. I am as anxious to safeguard the interests of this community as any honorable senator, but; in times of necessity such as weare going through to-day we> should not waste time on such paltry reasons as- have been given here for the adoption of the amendment.
– But the Minister is asking us to agree to the amendment.
– Yes, and I am opposing that course.
– Are you opposing the amendment in the interests of the -original clause?
– Yes ; I am asking that the Bill which was carried through the Senate a few days ago, and which provides all the necessary safeguards for the civilian, should be indorsed by the Senate to-day.
– The Government accept the amendment.
– When my honorable friend is in disagreement with the Government he is just as keen as any -other honorable senator in pressing his point. On this occasion I am in disagreement with the Government, and I am asking the Committee to agree to the Bill as it was passed a few days ago. By that Bill we give the Government the power which they should have in times like the present. Although the war is progressing as satisfactorily as we can expect at the moment, we do not- know what may happen in a month or six weeks. In that time this country might be invaded, and members of this Parliament scattered all over the Commonwealth of Australia. The Government, therefore, should have full power to deal with any cases that may arise, and in the manner provided in the original Bill. I hope the Committee will reject the amendments sent from another place, and carry the Bill in its original form.
Senator O’KEEFE (Tasmania) fll.401. - I intend to support the amendment foi the very good reason that the Minister himself is asking the Committee to adopt it. Senator Newland, it seems, is basing his objection to the amendment on the supposition that if a spy is caught red-handed “there should be no delay in his violent exit from this world. We all agree with Senator Newland that a spy deserves the worst and quickest fate that can be meted out to him; but Senator Newland’s argument implies a distrust in the civil Courts to mete out the speedy punishment that a spy deserves.
– They cannot do ;t.
– Yes, they can. Senator Newland has in mind the case of a wealthy man who with money behind him may take his case from Court to Court, and thus perhaps defeat the ends of justice, but I refuse to believe that any civil Court would allow that to be done.
– The civil Courtmust allow him that opportunity.
– And it is being done to-day in the Snow case.
– No, it is not. That is not the case of a spy.
– But is not that man’s cass as bad as that of a spy ‘? What is the good of quibbling about terms ?
– The Government are satisfied with the amendment which has come from another place. I do not agree with many of the tilings said in the discussion elsewhere, and I am not disposed to join the army of malcontents who appear to be anxious at this time to hold up everything as a grievance against the Government. I sympathize with the Government in the difficulties that are confronting them, and I sympathize with the authorities of the Defence Department. I will support the amendment because it provides such safeguards for civilians as should be included in a measure of this sort.
– The safeguards are in the original clause.
– But they are not sufficient in my opinion, and although Senator Newland may think that this amendment will sweep them away in extreme cases, we should not legislate for such cases merely on a supposition that a situation of that nature might arise.
– I intend to support the amendment. I agree with the Minister of Defence that many matters arising out of the conditions existing at the present time are surrounded with difficulty. I refer honorable senators to one case to show what might happen if these powers were handed over absolutely to the military or to the naval authorities. A few months ago there was a little. labour dispute here in Melbourne between the captain of a ship and some of his men, and the captain got the worst of it in the law Court. Immediately afterwards the ship was commandeered by the naval authorities to take troops to Rabaul. The captain, cherishing a feeling of bitterness towards the men, who had beaten him in the law Court, thought he would make them sit up when he got them to sea. The result was that, because of some little shortage of steam, he said that the crew had mutinied. He hoisted his signals, and a major in charge of troops put the whole of the firemen on board the ship under arrest in charge of a guard of soldiers with fixed bayonets. Some of the men were taken out of their bunks to be put under arrest.
Senator Pearce .i ; There was an inquiry held into the matter.
– What sort of an inquiry ?
– By a special magistrate in Brisbane. Not by a court martial.
– There was a court martial when the men were arrested.
– There was no court martial in that case at all.
– At the command of an officer the men were arrested by soldiers with fixed bayonets.
– At the request of a merchant captain, and not of a military officer.
– It was a military officer who ordered the arrest.
– At the request of the captain of the ship.
– I regret that although the inquiry was held several months ago, we have not yet seen the report of the gentleman who held it.
– The report has not been sent on.
– It is remarkable that the gentleman who was appointed to hold the inquiry, and who was a retired magistrate, should hold back his report for three months. The whole case was thoroughly gone into, and both the Crown and the men were represented at the inquiry. Tlie facts are that because the ship lost a mile or two behind the convoy, as the result of some special circumstances, the firemen were arrested, and if they had not had a strong union behind them, to insist upon an inquiry into the matter, they would probably have been shot.
– Surely the honorable senator is pressing his point too much ? Does he assert that there was any danger of these men being shot?
– Why were these men arrested by a guard with fixed bayonets? I presume it was intended that the bayonets should be used. I am satisfied that they would have been used if the men had resisted arrest. The Minister of Defence says that the military arrested these men under orders from a merchant captain; but what military authority would take orders from a merchant captain ? The military officer arrested these men on his own authority. The master of the ship might have made a report to the military officer, but he took upon himself the responsibility of arresting the men, and placing them under a guard with fixed bayonets. I could go into the evidence given at the inquiry at some length, and show why it was not possible for the men to get up the steam required, but I shall not do so, aa the official report of tlie inquiry has not yet been received. I say that if these men had not had a union behind them they would have been absolutely powerless to have secured any inquiry into their case at all. The facts in this case supply strong reasons for the acceptance of thi* amendment.
– I am going to give the Government my whole-souled support in regard to tin’s amendment. I suppose that all wisdom is not confined to the members of this Chamber, and from the stand-point of the maintenance of civil liberty I consider the amendment an improvement upon the clause as it waa passed by the Senate. As we passed it, the clause gave to ari accused civilian the option of claiming the right to be tried before a civil tribunal. It is possible that a comparatively ignorant civilian would not ba aware of his rights in this respect under the clause as we passed it, but as amended by the House of Representatives ib will secure even to such a person thi right of a trial before a civilian tribunal. Viewing the matter from the point of view of sticklers for civil liberty, the amendment of the House of Representatives is a distinct improvement on tlie Bill as passed by the Senate. I was a veryinterested listener to the discusion which took place in another chamber, and thc dispute was not so much between those who desired to uphold martial law in its entirety and those who desired to preserve a reasonable measure of freedom for the civilian population, as it was between those who were prepared to give the Government the powers considered necessary, and those who wished to amplify the freedom of the civil population beyond all reason, and to such- an extent as to make this measure as a War Precautions Act of practically no avail. I am personally satisfied if the pre-eminence of the civil power in a general way is secured, and I am consoled by the fact that this measure, as soon as we reach a state of peace, will become like the baseless fabric of a vision. It might, perhaps, have been better to have limited the operation of the measure to one year, and then, if necessary, to re-enact it as the Imperial Parliament re-enacts the Mutiny Act. T suppose that we shall be meeting here every year, and, if the operation of tha measure discloses the necessity for its amendment, wo shall be able to amend it as desired. We have to remember that we are in a state of war, and it is necessary to arm the military authorities with sufficient power to take prompt action which may be essential to the success of military movements. I do not think that Australian civilians are likely to suffer any great injustice under the provisions of this Bill. It is difficult to contemplate that any man, Australian born and bred, who will have reserved to him the right of trial by a civilian tribunal, will do anything so injurious to the interests of his country as would justify his trial before a military tribunal. But in regard to the military there is no doubt that the authorities must have the power to act promptly. In my view the only people who are likely to be affected in any way by the passage of this measure will be those who are inimical to British supremacy.
– No; it will affect any person who contravenes any regulation or order. Under this Bill, a man in a woollen factory who fails to comply with an order may be tried by court martial.
– No; that could not be so, even if the amendment we are considering was not made. Before what the honorable senator suggests could take place, martial law would first have to be proclaimed.
– If . the occasion should arise for the proclamation of martial law, the war will have taken on such a bad complexion that the most drastic measures will be justified. Senator Guthrie is aware that violent remedies are sometimes required to deal with desperate situations. We know that Cromwell actually tore a sergeant out of the ranks and shot him in order to check incipient rebellion. I support the amendment as being an improvement on the clause passed by the Senate.
– Some honorable senators have objected to the amendment simply because it has been made in another place. I cannot understand why a proposition should be opposed because it is made by some one else. That is not a logical or reasonable way in which to deal with amendments made in another place upon Bills introduced in the Senate. We should pay as much attention to such amendments as we expect another place to pay to amendments we make in Bills introduced there.
– The other place is the chamber of review in this case.
– As a rule, legislation is initiated in another place, and the Senate is the chamber of review. If amendments made in the Senate were turned down in another place merely because they were made here, we should consider ourselves very lightly treated. This Bill was passed in the Senate in a very hurried fashion, and I am as much, to blame as other members of the Senate for not having given it the consideration which, perhaps, it deserved. There is no reason at all why we should object, upon the further information which has been disclosed by the discussion in another place, to agree to liberalize this measure. The Government are prepared to support the amendment, and they are in possession of information upon the matters with which the Bill is intended to deal which private members cannot claim to possess. I will support the amendment, because I believe that it will make this a better measure than it was when it left our hands.
– I should probably not have intervened in the debate, but as I understood that another Bill will shortly be before us, I may perhaps be permitted to say a few words now.
First of all, I do not think some honorable senators have been quite just in referring in such scathing terms to courtsmartial. I anticipate that a most important court martial will be held shortly, and I invite honorable senators to attend it. I am satisfied that if they do, a good many of their misapprehensions will be removed. There are some respects iu which a court martial is a fairer tribunal than a civil Court. Of course any court is vitiated if the persons comprising it are either corrupt or prejudiced. That applies to civil Courts as well as to military. If the Judge of a Court or the president of a court martial is corrupt, or a person who will not give justice, the mere fact that he does or does not wear a uniform will not make him any different. In the case of a court martial the president has thrown upon him an obligation which the magistrate has not. That obligation is clearly stated in the military regulations providing for courts martial. The president of the court has to be the friend and representative of the person charged..
– Does not that apply to a Judge?
– No ; the civil magistrate is not so charged. It is clearly laid down in the instructions to the president that he has to secure justice for the prisoner, and to see that the prisoner’s case is fully presented; and he must interrogate witnesses on behalf of the prisoner.
– That is the case with a Judge.
– It is not. I have had a talk with legal authorities on the question, and they have assured me that there is a distinct difference between the obligation laid on the president of a court martial and that laid on the Judge of any civil tribunal; and that difference is distinctly in favour of the prisoner. The president has to watch the case in the interests of the person charged. Again, in courts martial the prisoner can be represented by counsel. When that point was made in another place it was poohpoohed with the interjection, “ Oh, yes, the prisoner was represented by a corporal,” the assumption being that as the judge-advocate, who was the prosecutor, was an officer, the prisoner was at some disadvantage. As a matter of actual fact that corporal was in his private capacity a solicitor, -with much longer experience, and a higher standing in the pro fession, than the officer who happened’ to be conducting the prosecution. Those are some of the things upon which this misapprehension is built up. True, the prisoner was defended by a corporal, but he was ode ended equally as well from the point of view of legal talent as he was prosecuted. Australia has a citizen army, and the power of proclaiming martial law and doing away with civil trials will only be exercised when invasion takes place, and the civil tribunalsare not available, having probably been swept away. In the event of such an invasion, our Australian forces will not consist of the few permanent gunners at the forts and a few permanent officers, but of over 140,000 citizens - civilians, not militarists. They will not be these tyrannical military people who are held up as such a bogy, but carpenters, sailors, coachmakers, miners, and lawyers. These men will, for the time being, be the terrible militarists. Those who will constitute these tribunals will not be Prussian militarists, but civilians who, for the time being, are military officers, because for that force of 140,000 we shall requireprobably from 1.2,000 to 15,000 officers, whereas if we took all the permanent officers that we have in Australia to-day wecould not muster 1,000, or anything like it. The overwhelming number of them would therefore be civilians who had for the time being donned the uniform. Thereis no objection to many of these men who follow the profession of the law beingmade civilian magistrates or Judges, with power to try cases and inflict thedeath penalty; but, according to my honorable friends, if we put the military uniform on them they suddenly become tyrants, and, therefore, suspect. Suddenly their ability to deal out justice is to be doubted, because for the time being they are dressed in military uniform.
– How many navvies are likely to be presidents of courts martial ?
– The navvy has an opportunity for the first time in our history to become an officer. The honorable senator may not know that thegreat majority of the men who are qualifying at the military and naval colleges are the sons of working men, and won their positions there by competitive examination. Under the system, as -regards promotion in the Citizen Forces, every step has to be won now by competitive- examination. The man who goes out to Broad meadows can win his way by competitive examination, and obtain a commission before leaving Australia, and many have done so.
– A lot more have not,
– Of course, they cannot all be officers. Many have failed, but many more have succeeded.
– A number have bought commissions.
– That is a foolish statement, because a commission cannot be bought in our Army.
– Can a man in the Navy rise to the position of a navigation officer ?
– The position of a navigating officer can be reached through the Naval College.
– Not by a man in the Navy.
– No, but we have laid down the avenue through which our naval officers shall come, and that is the Naval College. We have made the entrance to that college competitive examination, and 85 per cent, of the boys in the college have come direct there from the primary schools.
– What chance has the Tingira boy of becoming an officer ?
– He has not the same chance, because the Tingira is not intended as an officers’ training school. The honorable senator might as well ask what chance a man going into a boilermaker’s shop has of becoming a doctor. He has to go to the right training school. We have decided to train our officers in the Naval College, and to train our ratings through the Tingira. If a boy elects to try to become an officer he must go in throughthe door of the Naval College. If he is content to be merely a rating he goes on to the Tingira to be trained. He can elect which of the two doors open to him he will try to enter.
– Have you not made provision for a certain number of boys on the Tingira to reach the quarterdeck?
– We have provided that where a boy shows special aptitude on the Tingira he shall be given : an opportunity to qualify. That applies only to a certain number in the year. Take the case which Senator McDougall dealt with of a sergeant who in time of war was in charge of men, and came to his duty drunk. The honorable senator brought that forward as a case of possible injustice arising through a trial by court martial. This is a time of war, and not of peace. What a beautiful example that sergeant set to the men under him ! Could we afford to shut our eyes to that aspect of the matter ?
– What would happen to him in Europe ?
– If he was at the front he might possibly get a much severer sentence. I do not think Senator McDougall contended that justice was not done in that case. In fact, I am sure he will admit that justice was done, but he mentioned another case - and he has given me the name privately since - of an officer who, he says, came on duty drunk, and was not court niartialled. I cannot recollect the case, and should like an qpportunity to look it up. So far as I can I shall endeavour to see that the officers get exactly the same treatment as the men. Senator Guthrie brought forward another case, and I do not thinkhe could have chosen a better one to show that even the present Minister of Defence, with all his faults, can be fairly trusted to do justice. It is alleged that the captain of the ship signalled that a mutiny had occurred, as his firemen had refused duty. I am not going to express an opinion as to whether that was true or not, but Senator Guthrie will not refute my statement that that was the signal that was made. What was the military officer to do?
– He did not inquire into it.
– How could he inquire ? He was not in charge of the ship. He had to act. The honorable senator forgets that when a ship is taken for transport duty the captain, and not the military officer, has command of the crew, and is responsible for what he and those under his command do. If the captain says that the men have refused duty, one of the duties of the military officer is to enforce the authority of the captain. He knows nothing about navigation. The men on the ship are not under him.
– Wait till we get the magistrate’s report on the case.
– The honorable senator did not wait. The question is whether the captain was justified. The union brought the case before me, and I immediately saw that there was a reasonable ground for difference of opinion, and at once ordered a magisterial inquiry and not a court martial. We were dealing, not with military or naval people, but with civilians, and in such a case I say unhesitatingly that a magisterial inquiry is better than a military tribunal. Surely Senator Guthrie could not have mentioned a case more apt to show that people can have confidence in a court martial.
– The point I wanted to make was that the inquiry ended three months ago, but that there has been no decision yet.
– I can assure the honorable senator that I have not yet had the final report of the magistrate. The case is sub judice, and I do not intend to express an opinion as to whether the Government were or were not justified until I do get his report.
– These men are suffering all the time because of the delay, with the report.
– I do not think that the men are suffering any more than the expedition was suffering.
– Some of them cannot get another ship.
– While you have the statement of the men on the one hand, you have on the other the statement of the commander of the expedition that his journey to the place where he was going was delayed as the result of their actions.
– For how long - ten minutes ?
– For longer than that.
– And there were other reasons for that.
– These alleged reasons are the subject of a magisterial inquiry. As regards the amendment itself, I “did feel that the clause was one which was nob likely to be abused. However, another branch of the Legislature thought that, instead of leaving the civil trial optional it was better to make it obligatory, and there is in this the advantage Senator Bakhap has pointed out. In the absence of the amendment a person ill-informed in the law might not know what he could do; per haps his attention might not be drawn to the fact that he could appeal to a civil tribunal, and therefore he might not exercise his right. But under the amendment such a person will have the right preserved to him, and the exercise of the right will not need to rest on his initiative. Therefore, I suggest to Senator Newland that as it does not weaken the power todeal with any situation which may arise we might very well accept the amendment.
– I am not going to divide the Committee.
– A few minutes ago I spoke in support of the amendment, but after listening to the arguments of the Minister of Defence I must confess that I feel somewhat in a: dilemma. I do not know whether h» wishes this amendment to be carried or not. I wish that I had waited to hear the Minister before I addressed the Committee. Certainly, if I were to follow his arguments I would vote against tho amendment. The account we heard of the enlightened and charitable practice of law at the drum-head came as a startler to me. I do not know whether the Minister has had any experience of this sort of thing or not, but if we were to follow his arguments to-day we would certainly abolish at once the civil Courts and adopt martial law in our various walks of life. The abolition of the black-coat gentry and the putting on of the red coat is the sum and substance of the Minister’s statement if there is any logic in it. No matter how much we may admire the Defence administration, I do not think that we are prepared to take such a great step as that. But I do ask the Minister if he has had any practical experience of martial law in a community in which he lived. I have had some experience of martial law, and I dare say that there are honorable senators on the back Ministerial bench who have had a little experience of it. If Ave cast our minds back to various industrial disputes which have occurred in Australia, if we go back as far as the maritime strike, when I had a little experience of the justice of trial at thedrumhead
– I did not deal withmartial law, but with courts martial.
– If the Minister is going to have courts martial by the military, and he says that that is not martial law, it seems to me a contradiction of terms, or a mere quibble.
– We can have courts martial at any time in the Naval and Military Forces.
– Is it proposed that the court martial shall displace for the time being the civil law?
– In the amendment we are providing for those who may be exempt from court martial, and, therefore, I say it is martial law when a court martial is held, and it is of no use for the Minister to argue to the contrary. I am quite satisfied to accept the amendment which has been made by another place, for the simple reason that, in my opinion, the Bill has been liberalized in the interest of civilians whose welfare has been considered and safeguarded. But if we are to have a Minister, when amendments come down to this Chamber, speaking with two different voices, it will put the followers of the Government in- rather an awkward position to know how to go in order to move in the right direction. I think that we cannot do any hann in seeing that the law is made as liberal and generous as possible to civilians, at the same time taking all necessary safeguards to prevent those whom martial law should deal with coming within the scope of the Act. I think that the amendments of the House of Representatives will do both, and consequently we should adopt them.
Senator Lt.-Colonel O’LOGHLIN (South Australia) [12.20].- When the Bill was before the Senate previously, I supported it with some reluctance. I am deadly opposed to introducing into the law anything in the nature of what is known as militarism - that is, placing the military power over the civil authorities, or, in other words, giving the right to the military authorities to abrogate the civil law. It was only a consideration of the circumstances in which we are placed, and the assurance of the Minister of Defence that this was part of the British law, and might be necessary if certain events should occur here, that induced me to support the measure. So far as I understand the proposals in the Bill, they only define or place in statutory form certain powers which any Government worth their salt would exercise, whether embodied in an Act or not. There is an unwritten law which, in the case of an emergency, any Government would put in force. When the war broke out the Government in power proceeded to enlist men, and were prepared to take part in the war without any definite authority, and I think they were fully justified in so doing. 1 desire to say a few words in regard to courts martial. Some persons have the idea that a court martial acts in an arbitrary manner, without being subject to any restraints or rules.
– Courts martial have done so in the past.
Senator Lt.-Colonel O’LOGHLIN.No; they cannot do> so.
– I can show that they have.
– 1 have sat as a magistrate in civil cases on innumerable occasions, and I have also sat on a court martial, and presided over a board of inquiry, which was conducted under the rules of the court martial. I can assure the honorable senator that the rules governing the proceedings of a court, martial, and laid down in the military regulations, are of the most elaborate description. Every qualified officer has to pass an examination on the law with regard to a court martial before he can obtain a senior commission. The rules of evidence, and, in fact, all particulars as to tlie conduct of a court martial, are laid down, and every officer before he can preside or take part in a case is required to pass a very stiff examination. It is a mistake, therefore, for any honorable senator to suggest here that courts martial are inclined to act in an arbitrary way. As the Minister of Defence has stated, these courts are conducted by men who are civilians. I do not think that there is a senior officer in South Australia. - including the officers1 at the front who are in command of the troops - who has not) passed through the ranks. That was also the rule in that State prior to Federation.
– If you had taker a part in the maritime strike you would have had a different experience.
– 1 only speak of what I know. I cannot speak of matters outside my cognisance I take it that the provisions of this Bil) only express in statutory form certain powers which every Government has. an unwritten right to exercise, and which every Government does exercise, whether contained in an Act or not. The. amendments proposed by another place are designed to further define, and to limit any arbitrary excercise of, the powers of a court martial. I do not think that there will ever be the slightest necessity to put any of these powers in force, but I believe it is a wise precaution to have them properly defined in an Act and for that reason I support the Bill and the amendments.
– This morning we have hearda good deal about martial law and courts martial from honorable senators who apparently knew very little about what they were discussing. We have just listened to the testimony of an honorable senator who has sat as the president of a court martial, and I understand that there is not a drop of blood on his hands to-day.
– He was never a prisoner, though.
– He has never ordered the execution of a single individual. What do my honorable friends chink of that?
– He sent a man to gaol for blowing a bugle with bad lips.
– I do not know whether my honorable colleague from South Australia has been guilty of such a cruel act as that.
– The case had nothing to do with a court martial, anyhow.
– It was a military trial by Colonel Stewart, and you were Chief Secretary at the time.
– I am satisfied that neither in South Australia nor in any other part of the Commonwealth can a glaring act of injustice be sheeted home to any court martial. Mistakes, no doubt, have been made in courts martial, as in civil trials, but we are quite confident that nothing of the kind related has ever happened. We have been told to-day about what happens under martial law. We know perfectly well that in the case of industrial disputes - and we regret the fact - the Lord Mayor, or some other person in authority, is called out, the Riot Act is read, and, if necessary, the military or the police can be ordered to fire on the crowd. This amendment has noth ing to do with courts martial. The supporters of. the amendment have gone from Dan to Beershebah to find arguments to bolster up a very weak case. They have dragged in some most outrageous things - things which could not possibly occur in connexion with a court martial - to strengthen their contention. I ask honorable senators who have raised this plea what they would have done if they had been at Singapore a few weeks ago, when the mutiny broke out ? Where would civil law have been then ? The services of the military had to. be employed.
– Quite right, too.
– No court martial ordered that action. The mutineers were shot whenever they were found. People were shot in the streets of Singapore by the mutineers. Doea my honorable friend suggest that a member of a British force who shoots a British subject should be arrested, lodged in a lock-up, and then provided with the best legal authority in the country for his defence ? Of course he does. not. He would he the last to suggest anything of the sort.
– But the innocent may suffer under a proposal of this kind.
– There is no suggestion of that.
– Does the honorable senator know when he isbreaking these military regulations ?
– I think so.
– The honorable senator may be breaking them now for all he knows to the contrary.
– The point we have to recollect is that this is special legislation which is being enacted for extraordinary times, and the Government are merely asking that in such circumstances those who are guilty of a crime against the Crown shall meet with summary justice.
– No. For any offence against this Act.
– The only argument advanced in favour of the amendment has been put forward by Senator Bakhap, who has championed the cause of ignorant persons who may not be aware that under this Bill they will have the right to be tried by a civil Court. I admit that there is a good deal in that argument, but not enough to warrant the Government in accepting the amendment made by another place. I do not scout the proposal merely because it emanates from another branch of the Legislature. On the contrary, I ara prepared to give it all the consideration that it merits. But some amendments which have reached us from another place have received very scant consideration at the hands of honorable senators.
– And some amendments have been very fully considered.
– Personally, I do not feel very strongly on this matter. But considering the extraordinary circumstances which exist I think that the Government should be vested with full power to deal with the enemies of the Empire either by court martial or in any other way.
.- When this Bill was previously before the Chamber I took it to be very largely an emergency measure. I regarded it as being intended to provide for a contingency which seemed very remote indeed. Nevertheless it is wise for the Legislature to make provision for every possible emergency. I was prepared at that time to trust the Government. I believed that they would not make any improper use of the power to suspend the trial of persons by a civil Court if the occasion for taking such a course of action arose. There has been a great deal of discussion as to depriving people of the liberty of the subject in some respects. If the amendment which has been inserted in another place will allay any feeling of alarm in that direction I have no objection to it. A good many honorable senators apparently apprehend more danger from the establishment of courts martial than appears to be justified. We must not forget that in Australia we are raising a military force which is comprised of citizen soldiers, and we hope that the men comprising that force will be imbued with the spirit of the citizen soldiery rather than with that of the old military caste.
– No doubt a lot of them are.
– I have read a good deal about military matters’, and I must confess tha.t I have never had much love for militarism. I hate militarism as I hate sin, but there are times when we have to submit to it because of the conditions with which we are surrounded. To-day we are in a state of war, and, consequently, have to accept military conditions which otherwise we would not tolerate. To my mind the danger to beapprehended is not so much the court martial as the fact that a private or ranker will not often be in a position todefend himself before such a tribunal in the same way as will an officer. I hope that when cases under this provision do arise the ranker or civilian will be provided with leg’al assistance to enable him to have his case presented just as well as the prosecutor will present the other side. In connexion with civil cases, I have time and again heard an attorney put a question to a witness which has been misunderstood, with the result that a wrong answer has been given. Thus the jury has been led to a wrong conclusion because of a misconception in the mind of a simple man. The simpler the individual the more chance there is of injustice being inflicted upon him. I have every confidence in the Minister of Defence, and I trust that when representations are made to him in any case in which a ranker may be charged with an offence he will see that legal assistance is provided the accused, so that his case may be presented in the best possible light.
– And promptly too.
– Yes. I hope, too, that civilians who are tried before a civil tribunal will have equal facilities offered to them.
Senator McDOUGALL (New South Wales [12.42]. - I desire to say a few words in reply to the remarks of the Minister of Defence. In bringing forward the case which I did I had no intention of conveying the impression that I was dissatisfied with the punishment that had been meted out to the offending sergeant. But I am undoubtedly dissatisfied with the punishment inflicted on the officer whom I mentioned, who was guilty of practically the same offence at very nearly the same time. Whether the sergeant deserved his punishment I am not going to say. But if he did, certainly the officer merited similar punishment. The Minister asked me for the name of the offending officer, but I do not think it would be a fair thing to mention it here. The papers relating to the matter are in the Department - they set out the names of the individuals concerned, so that everything is in order. I do not think it would be fair to drag the officer’s name before the public, seeing that he has practically been acquitted of the offence with which he was charged. I do not object to the punishment which was; meted out to the sergeant, but I do protest against the differential treatment to which he was subjected as compared with the other culprit.
Motion agreed to.
Clause 4 -
House of Representatives’ Amendment. - Omit sub-clause 7.
.- This is merely a formal amendment. It proposes to omit sub-clause 7, which is now unnecessary, seeing that we have struck out the words “British subject” which appeared in sub-clause 6 of the Bill when it left this Chamber. I move -
That the amendment be agreed to.
Motion agreed to.
Clause 4 -
House of Representatives’ Amendment. - At end of sub-clause 8 insert -
Provided that while such proclamation is in force, any sentence passed by a court martial against a person to whom sub-section 6 of this section applies shall be referred to the GovernorGeneral for confirmation, mitigation, or remission.
.- The effect of this proposal will be that if martial law has been proclaimed in any area, and a civilian is dealt with by a court martial, before the sentence imposed upon him by that tribunal can be confirmed, it must be referred to the Governor-General, which means the GovernorGeneral in Council. Honorable senators will have the double safeguard. In the first place, the court martial will not be allowed to try a civilian except where a district or certain locality has been proclaimed under martial law. And then, the civil Courts having been set aside, and the civilian having been tried by court martial, the sentence, before it is confirmed, must be reviewed by the Executive. I think that will meet the view of the Committee, and I move, therefore -
That the amendment be agreed to.
Motion agreed to.
Resolutions reported, and report adopted.
Bill presented by Senator Gardiner, and read a first time.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended, and (on motion by Senator Gardiner) Bill read a first time.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended, and (on motion by Senator Gardiner) Bill read a first time.
Bill returned from the House of Representatives with an amendment.
Standing and Sessional Orders suspended.
That the message be considered forthwith.
In Committee (Consideration of House of Representatives’ amendment) :
House of Representatives’ Amendment. -
Add the following new clause. - 4a. Section 62 of the principal Act is amended by omitting from sub-section 7 thereof the word “second.”
Section proposed to be amended - 62. (7) A person who has served as officer in the Senior Cadets shall be eligible, on an equality with persons who have served for three years in the ranks of the Defence Force, to be appointed second lieutenant in the Citizen Forces, if his appointment as officer in the Senior Cadets was promotion from the ranks in a manner similar to that prescribed under section 11(a) of this Act.
– I move -
That the amendment be agreed to.
This is purely a formal amendment, but will be the means of saving the Commonwealth several hundreds, if not thousands, of pounds. There has not been time to print the amendment. After the Bill had left the Senate it was brought to my notice that there was a section in the Defence Act providing that persons who were commissioned in the Senior Cadets, if they transferred from the Senior Cadets to the Citizen Forces, and qualified for a commission, should be eligible to be appointed as second lieutenants. Now, if a person already in the Citizen Forces qualified, he attained the rank of lieutenant. That is to say, there is neither the rank “first” nor “second” lieutenant; they are all lieutenants. The provision with regard to second lieutenants, therefore, was really an oversight on the part of the draftsman, because as regards the Citizen Forces the rank of second lieutenant has been done away with. With the clause in its original form, it would be necessary for any person transferring from the Cadets to the Citizen Forces to undergo two examinations to get the rank of “first” lieutenant. If he qualified at the first examination he would be appointed as “ second “ lieutenant, and before he became a “ first “ lieutenant he would have to pass another examination of an exactly similar nature, so that really there is a duplication of examinations which is costing the country a lot of money. Therefore we are asking Parliament to strike out the word . “ second “ so that all the officers will be in the same position - that is to say, if they qualify they will take the rank of lieutenant. It is the desire of the Government to stop this expenditure at the earliest possible moment, and therefore we are asking the Committee to agree to the amendment.
– Though I have no desire to enter any opposition to the amendment, I think it is very desirable that we should have all these amendments of principal Acts in print before us. In this case the Government seek to amend the original Act, but as the amendment is not printed we are not able to turn up the principal Act, and therefore, to some extent, we are legislating in the dark. I protest against this state of things. The Minister has assured us that it is being done in order to save the country the expenditure of a few hundred pounds on examinations, but I have always understood - I do not know whether I am risht - that there were two grades of lieutenants in our Forces, and that if a lieutenant in the lower grade wished to attain a higher rank he had to pass an examination.
– That has been abolished for some considerable time in connexion with the Citizen Forces.
– I am aware that a lot of things have been abolished in connexion with the Citizen Forces, and I am also aware that men have been acting lieutenants without having passed any examination at all.
– Yes, that is so, but they can only be appointed in that way for six months, and they are then required to pass a qualifying examination for the rank.
– It would be much better if we had the amendment in print before us so that we could look at it carefully.
– I assure the honorable senator that if there was any importance in it I would not have sought to have the amendment carried without giving honorable senators the opportunity to see it in print.
Motion agreed to.
Resolution reported ; report adopted.
Sitting suspended from 1 to 2.30 p.m.
.- I move-
That this Bill be now read a second time.
This is another of the emergency measures. Its object is to confer upon the High Court original jurisdiction to try indictable offences against the Commonwealth. At present the High Court has not such jurisdiction. Under the conditions obtaining at the present time, it is most desirable that indictable offences should be brought directly before the High Court in contradistinction to the procedure now followed in such cases. At present such cases are brought before the various States Courts, and the procedure is at times unduly prolonged. Cases have already arisen which it was most desirable should be dealt with promptly and without undue expense. Clause 3 of this Bill confers upon the Attorney-General the power to file an indictment in the High Court or a State Criminal Court without examination or commitment for trial. This power is not novel in Australian criminal procedure, as most, if not all, of the State AttorneysGeneral possess a similar power under the State criminal codes. The power is one which is used only upon rare occasions, and in the majority of cases only when it is desirable that charges for indictable offences should be tried expeditiously, and the delay arising from the preliminary examination in a summary court overcome. It is intended that the Bill shall operate only during the period that the war lasts and for six months after the conclusion of peace. The change that is proposed, therefore, will operate only during that limited time. The reason for the proposed change is that the Commonwealth may be able to take direct action in cases whore the AttorneyGeneral considers that it is necessary and desirable to do so in the interests of justice. As the Bill was first circulated to honorable senators, it did not contain a provision limiting its operation in the way I have stated.
.- The only copy of the Bill at present available to honorable senators is that which was circulated yesterday, but I gather from the Vice-President of the Executive Council that in another place an alteration has been made in the measure limiting its operation to the period of the war and six months afterwards. I am not quite clear whether it is intended that that provision shall apply to the whole of the Bill or only to clause 3.
– To the whole of the Bill.
– The Bill provides for increasing the original jurisdiction of the High Court. By section 30 of the principal Act the High Court has original jurisdiction conferred upon it statutorily in all matters arising under the Constitution or involving its interpretation. It is now proposed by paragraphs b and c of clause 2 of this Bill to add to the original jurisdiction, conferred upon the High Court by the principal Act jurisdiction -
I am not quite sure whether it is really intended by the Government that the investing of the High Court with original jurisdiction in these matters shall be limited in its operation to the period of the war and for six months afterwardsI mention the matter, because it is possible that in the hurried passage of the measure the provision restricting its operation has been made to apply to clause 2 by mistake. When I heard that an amendment had been made in the Bill asoriginally introduced in another place I understood that its purpose was to limit the operation of clause 3 to the period during which the war lasts, and for six months afterwards, and that it was the operation of that clause only that was to be so restricted. I . advise the Vice-President of the Executive Council to be quite sure on the point before the Bill is finally dealt with.
– The amendment appears as sub-clause 4 of clause 1 in these terms -
This Act shall remain in operation during the present war, and for six months thereafter, and no longer. - so that the restriction appliesto thewhole measure.
– I gathered that from what the honorable gentleman said before, but does that really express the intention of the Government?
– Then I think we should have some reason given forrestricting the operation pf the jurisdiction conferred by paragraphs b and c of clause 2 in the way proposed. Is there any reason why the High Court should exercise original jurisdiction in those matters only for the period named?
– They have that jurisdiction under the Act already in force.
– If that be the case it was unnecessary to propose to invest them with that jurisdiction under this Bill as originally introduced. I am referring to the matter merely in order that the Vice-President of the Executive Council may be quite sure on the point raised, and that we may not have to pass another amending Bill in the course of a week or two.
– It might be better to confer the jurisdiction mentioned permanently.
– At first blush it seemed to me that that was originally the intention of the Government, and that he alteration in the measure as originally introduced, which was made in another place, was intended to apply to clause 3 only, and by some mistake had been made to apply to the whole Bill. As the VicePresident of the Executive Council has pointed out, clause 3 is not altogether novel, in that it is not without precedent. As honorable senators are no doubt aware, the procedure in the case of indictable offences is that a person who is charged with a felony or misdemeanour is brought before a Court, nob of summary jurisdiction, as the Minister said, but before two or more justices. Such a Court exercises summary jurisdiction in other matters, but in these cases what they have jurisdiction to do is to hear the evidence against and for the accused person, and having heard it to commit him for trial, or to dismiss the charge against him. It is like a court of inquiry, and upon committal the trial of the accused takes place before a higher tribunal. In certain cases of minor offences - cases of petty larceny and such offences - the accused is given the option of being dealt with summarily by the justices, or of being tried by a jury. If he elects to be tried by a jury the justices may commit him for trial. It then remains for the grand jury, which in most States is the Attorney-General or SolicitorGeneral, to file a bill against the accused, or to refuse to file a bill against him. If the Attorney-General files a bill against the accused, a Supreme Court Judge and jury deal with the matter. It is proposed under clause 3 of this Bill to dispense withthe original inquiry before justices. I can quite see that it is desirable at the present juncture to give the Attorney-General power to dispense with that preliminary inquiry, and to directly file an indictment or information in the High Court. I can also quite see that it must appeal to a good many honorable senators that it maybe a serious matter to deprive a subject of the right to a preliminary inquiry where he may possibly be discharged or committed, but not convicted. The procedure is only to obtain during the war and six months afterwards.
If the Government really wish to invest the High Court with original jurisdiction in the other matters to which I have referred only for that period I have no objection, but I trust that honorable senators will be quite sure that they are not making the limitation upon the operation of this measure more comprehensive than was originally intended. If this is so intended, I cannot understand why the Government introduced this Bill at all in its original form, because it was obvious that the purpose then was for all time to invest the High Court with the added original jurisdiction contained in paragraphs b and c, clause 2, of this Bill.
– I must enter my protest against the manner in which the business of this Chamber is being conducted. It is impossible for honorable senators to express ‘ an intelligent opinion or legislate properly on Bills handed to them five minutes before. I understand that another place is actually waiting for these Bills to be sent back to them, so that we really have no opportunity of studying them.
.- Not having had the chance to consider the Bill, and not being a legal man, I move -
That the debate be now adjourned.
Question put. The Senate divided -
Ayes . . . . 4
Noes . . . . . . 18
Majority . . . . 14
Question so resolved in the negative.
– I regret the incident that has just occurred, for the simple reason that it was based on a complaint that was most unfair.
– Is this in order?
– That incident being closed, I would ask the honorable senator not to refer to it.
– We are charged with following an unusual procedure in introducing the Bill, but it was before honorable senators yesterday, and there has been only one amendment, limiting the operation of the Bill to six months after the end of the war. When Senator de Largie came into the chamber, I handed him the Bill with that amendment written on it, so as not to take him at any disadvantage. The general principles of the Bill are known to honorable senators, and the printed measure is now before them. This has been done since the other House passed it two or three hours ago. It is not an unusual or unfair procedure.
– It is most unfair and most unusual.
– I want, above all else, to maintain a reputation for perfect fairness, and I hope the imputation of unfairness will not be made against inc.
– You will admit that you had a big contract when you joined the Ministry.
– I resent the imputation against my colleagues more than I would anything directed against myself. I thank Senator Keating for his criticism, and would point out that, in the Act passed on 29th October, 1914, to amend the Judiciary Act of 1903, subsection b of section 2 refers to Admiralty and maritime jurisdiction. We are not repealing that provision. It still stands in that Act. Honorable senators may fairly ask why it also appears in this Bill. It was repeated in this Bill merely for convenience in drafting. If it is taken out of this measure, it will not come cut of the 1914 Act. Therefore, any fears the honorable senator may have on that point are groundless. The principles of the Bill have been well discussed by the Government, who recognise that it is urgent and, to some extent, unusual, although it cannot be called novel, but that applies to all measures of an urgent nature. It is one of the measures under which the Commonwealth proposes to take direct action. Honorable senators are asked simply to remember that in these stirring times matters which crop up day by day have to be dealt with as they arise. When we find that, perhaps, the already overcrowded State Courts are not dealing with Commonwealth business as effectively and quickly as we should like, and that we can, without injury or injustice, adopt a very effective or expeditious course to deal with it, I think honorable senators will agree that this measure should be introduced, and recognise that it is a measure calculated to give justice quickly, for justice not quickly given is not justice at all. There are advantages to be derived that justify us in asking that the Bill should be passed as a matter of urgency. At the same time I admit that, perhaps, I did not explain it as fully in my opening remarks as I might have done; but no time has been lost through not having theprinted amendments before us, and I trust that no honorable senator has been put to inconvenience.
Question - That the Bill be read a second time - resolved in the affirmative.
Bill read a second time.
Clause 1 - (1.) This Act may be cited as the Judiciary Act 1915. (2.) The Judiciary Act 1903-1914 is in this Act referred to as the Principal Act. (3.) The Principal Act as amended by this Act may be cited as the Judiciary Act 1903- 1915. (4.) This Act shall remain in operation during the present war, and for six months thereafter, and no longer.
– The fourth paragraph was not in the Bill as circulated yesterday. I have the assurance of the Honorary Minister that the alteration is intended to apply to the whole Act. That is the Government’s concern. I consider that I have done my duty in drawing attention to the circumstance that the insertion of that amendment by another place in that particular part of the Bill makes it operative, not only as regards the comparatively novel procedure of trial for indictable offences without preliminary inquiry before magistrates, but also on the provision adding to the original jurisdiction of the High Court. The Minister has put into my hands a copy of a Bill that we passed earlier in the session. It provides for an amendment of section 30 of the Judiciary Act to the same effect as clause 2 of this Bill in regard to Admiralty or maritime jurisdiction ; but clause 2 of this Bill goes still further, giving original jurisdiction in trials of indictable offences against the laws of the Commonwealth. There is nothing on the face of the Bill that we passed earlier this session, investing the High Court with Admiralty or maritime jurisdiction in its original jurisdiction, to show that it was intended to limit the operation of its provisions, and that convinces me that it was never the intention of the Government or Parliament, when it extended the statutory original jurisdiction of the High Court to embrace matters of Admiralty or maritime jurisdiction, to do so for only a limited period. On the contrary, that Bill, and this one, as originally introduced, show emphatically that it was the intention of the Government and Parliament to invest the High Court with Admiralty or maritime jurisdiction in its original jurisdiction for all time. It may be that for the convenience of drafting we are really re-enacting in this Bill what we enacted in the present session, but during last year, and we are adding to that by providing in paragraph c that the High Court shall have original jurisdiction in trials of indictable offences against the laws of the Commonwealth. I can readily understand the argument of the Minister that it is convenient to have these matters together in this new form. Clause 2 of the Bill, when it is passed, will contain all the matters of original jurisdiction which the High Court will enjoy and exercise, and that will be a convenience.
– Why not repeal the other provision?
– I do not know why the other is not repealed. If the law enabling Acts as amended, to be printed as amended, is availed of in connexion with the Judiciary Act - and I for one can say that it is absolutely essential that it should be - we shall have the spectacle of the amending Act showing the same amendment in two different places. First it will show the amendment which has already been passed this session, but during last year, and next it will show the same amendment with an addition to it. I take it also that at a certain stage it will be necessary for us to again amend the Judiciary Act. In what direction? To again invest the High Court with original jurisdiction in matters of Admiralty or maritime jurisdiction, because what we are doing now is limited to “ during the present war and for six months thereafter.”
– Should the Hie;h Court have that power for the period?
– No. We decidedlast year that the High Court should have original jurisdiction in matters of Admiralty or maritime jurisdiction for all time. There is no reason given now why we should depart from that decision and limit that jurisdiction to the period of the war and six months afterwards. But I can . quite understand that we should make the provision in clause 3 of the Bill operate only during the war and for six months afterwards.
– Because it deprives the subject of the opportunity he has, in the case of an indictable offence, of having a preliminary inquiry before justices who cannot convict him, but who may commit him or discharge him. Clause 3 gives power to the AttorneyGeneral to prosecute a man in the High Court without such a preliminary inquiry before magistrates. It takes away from a man that possibility, and it does it because, as the Minister says, in the comparatively congested procedure of the State Courts, we cannot get on all occasions our matters dealt with as expeditiously as is desirable.
– It will save a poor man a lot of money.
– It may; but it will also deprive him, in many instances, of the opportunity of being discharged at the preliminary inquiry. If there is not a Pr,ma facie case made out against a man, he is discharged by the magistrates. But now it is proposed to invest the AttorneyGeneral with power to dispense with the preliminary inquiry, and prosecute a man straight away in the High Court. There may be no prima facie case against a man, and he may be discharged after he has incurred a considerable amount of expense. I am quite prepared to give the power to the Attorney-General, because it is not altogether novel. In each State the Attorney-General or SolicitorGeneral now has the power, in certain specified circumstances, of prosecuting directly any accused in a State Supreme Court, without the intervention of a preliminary inquiry.
– Would you force a seaman suing for wages to go right to the High Court?
– This measure does not deal with such cases, but with cases of Admiralty or maritime jurisdiction in respect to which it will have original jurisdiction by reference to the provisions in the Constitution and the Imperial Statute in that regard. I am prepared, as I said, to give the power to the Attorney-General, realizing that it will only be used where the occasion demands. I am not prepared to give the power to him for all time, but only during the period of the war, and six months afterwards. That is why I think we ought to be very chary with regard to sub-clause 4 of this clause. I believe that if it is passed in its present form, later on - and not very long forward - we shall be invited to amend the Judiciary Act to remedy a mistake which we are about to perpetrate. I submit, and it will then be pointed out, that it was not the intention of the Government or Parliament to limit the whole of the Act, but only section 3. It is not my intention to move an amendment; but I think it is a matter to which the Government should give full consideration, so that we shall not have constant little amendments to our legislation, which make it very difficult at times for one to know the law, which the Courts oblige every person in the community to know.
– I do not realize exactly the position which Senator Keating is taking up. This is a Bill to amend the Judiciary Act in order to allow matters of Admiralty or maritime jurisdiction to go to the High Court directly. If it was confined to matters arising out of the war, I would have no objection to make; but it applies absolutely to all cases of maritime jurisdiction. If the owner of a ship fails, and is not able to pay the wages of the crew, it means that the men will have to go right to the High Court to get a lien on the ship. A number of similar instances could be cited. I can quite understand Senator Keating being in favour of such cases going to the High Court.
– This Bill does not provide for anything of the kind.
– Do you think that the Attorney-General would sanction a thing like that?
– I do not know what the Attorney-General means. If Senator Keating were engaged in a case he would not ask, “ What did the AttorneyGeneral mean when he introduced the Bill?” but he would ask, “What does the Act mean?” Clause 2 deals with “ all matters of Admiralty or maritime jurisdiction.”
– That is, matters coming within the Imperial Act known as the Colonial Courts of Admiralty Act 1890.
– At the present time our local Courts - the District Court and the Supreme Court - have that jurisdiction, but now it is proposed to take it away.
– No. This is not exclusive jurisdiction, but concurrent jurisdiction.
– In the cases I have suggested, can they still use the old form of procedure in a local Court?
– They can.
– Unless the AttorneyGeneral forbids it.
– In a previous debate to-day I mentioned that a retired stipendiary magistrate has taken three months to make up his mind on a case, and the Minister said that he had not yet received his report. Are we going to be humbugged like that under this measure? I can quite understand a professional gentleman wanting cases to be taken to the High Court, but I wish to see the matter dealt with fairly and quickly.
– That is why we want clause 3 of this Bill.
– It will send a man to the High Court at once.
– Yes, but at what expense? At the present time, if a primâfacie case is made out, the crew of a ship can be paid their wages, or the ship can be condemned before a magisstrate at practically no expense; but, if the crew have to wait till the High Court visits Western Australia, which happens once a year-
– Have you not been assured that the Bill docs not take away the existing powers?
– If the Government assure me that the Bill does not give exclusive jurisdiction to the High Court, I will be content, but I understand that it refers to all matters, whether connected with the war or not.
– I can assure the honorable senator that these are additional powers to give the High Court jurisdiction where it is not enjoyed now. I . also assure him, so far asone member of the Government can speak for the whole, that there will be no attempt to take the ordinary business out of the usual course.
– That is all very nice, but will the Government provide in the Bill that it shall be limited to matters arising out of the war?
– I can assure the honorable senator that the Bill is introduced to deal with urgent and necessary cases, and not with cases of the character to which he has referred.
– It covers more than that. It covers the whole question of Admiralty or maritime jurisdiction. If the Minister will consent to limitclause 2 to cases arising out of the war I shall be satisfied.
– If I were the AttorneyGeneral I might be able to give the honorable senator the assurance he asks, but I cannot do so upon hypothetical cases.
Clause agreed to.
Clause 2 -
Section 30 of the principal Act is amended by omitting therefrom all words from and including the words “original jurisdiction in all matters,” and inserting in their stead the words “ original jurisdiction -
in all mutters arising under the Constitution or involving its interpretation;
in all matters of Admiralty or maritime jurisdiction; and
in trials of indictable offences against the laws of the Commonwealth.
Section proposed to be amended -
In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution the High Court shall have original jurisdiction in all matters -
arising under the Constitution or involvingits interrelation, and
of Admiralty or maritime jurisdiction.”
Amendment (by Senator Guthrie) proposed
That after the word “matters,” in paragraph (b), the words “ arising out of the war “ bo inserted.
– I ask the honorable senator to withdraw his amendment. I can assure him that we have no intention of interfering with the extreme cases to which he has referred. Further, we desire this Bill to become law to enable us to deal with matters which we consider not only urgent, but important.
– Why object to the insertion of these words?
– For the simple reason that they might afford a means of proving that a particular case with which we desired to deal did not arise out of the war. I do not like such a wide and loose avenue of interpretation. I have no desire to hurry honorable senators in the discussion of this matter. But the necessity for the Bill is urgent, and I can say nothing further, except to assure Senator Guthrie that the extreme cases to which he referred will not be dealt with under its provisions. The Attorney- General is a reasonable man, and will not . go out of his? way to use the machinery provided in this measure in an absurd fashion. The Bill is intended to enable us to deal with special cases in a special way. There is no intention on the part of the Government to use the Bill in any way other than to conserve the best interests of thepeople.
– If the assurance , of the Vice-President of the Executive Council had not been given so frequently on measures of this character, it would doubtless carry a little more weight. But we are all familiar with the incidents which occurred in another place in connexion with a Bill which honorable senators passed upon a similar invitation. Surely we have a right to debate measures, and to amend them just as much as the other branch of the Legislature. Seeing that this is emergency legislation, there can be no harm in adopting the amendment of Senator Gutlirie, who desires the provisions of this clause to be limited strictly to the duration of the war. I think that his amendment is a proper one, and I cannot see why the Minister should object to it. Tf it will not accomplish any good, certainly it will not achieve any harm.
– It is too vague and indefinite
– The Bill itself is vague and indefinite on the point that we are discussing.
– I hope that Senator Gutlirie will adhere to his amendment, because I always like to be guided by more experienced men than myself. Whilst Senator Keating is doubtless well versed in the mysteries of the law, we must recollect that Senator Guthrie is equally familiar with the subject with which he has dealt this afternoon. I have no desire to prevent the speedy passing of the Bill, because I recognise its urgency. The Vice-President of the Executive Council has assured us that it is not intended that such cases as were referred to by Senator Guthrie shall be taken direct to the High Court. I believe him. But I would point out that extraordinary circumstances may arise which will prevent effect being given to the intention of the Government. In order to allay the apprehension of civilians who ply their calling on the high seas, it is just as well to insert the amendment proposed by Senator Guthrie. The language used in all measures submitted to Parliament should be clear and specific. If the amendment be inserted there will be no doubt of the intention of the measure, and the requirements of tlie entire community will be met.
.- The Government have assured us that this Bill is necessary to enable them to deal with urgent cases which may come under their notice during tlie next few months. Senator Guthrie objects to this proposal, chiefly on the ground of its in - definiteness. He built up a hypothetical case of seafaring men who may be dragged from place to place, and finally haled before the High Court, without first being afforded an opportunity of appearing before a minor tribunal, with a view to having their cases dealt with promptly.
– They cannot choose their Courts.
– The honorable senator is of the opinion that if the Bill be carried in its present form, all cases will have to be cited before the High Court. The Government have assured him that there is no such intention, and Senator Keating, who is a legal man, has pointed out that the Bill will not deprive civilians of any of their existing rights. I agree with the view which he has presented, that it merely provides for concurrent powers. To imagine that people will be anxious to rush to the High Court instead of to the minor Courts is to imagine the impossible. I admit that , Senator Guthrie is entitled to all credit for the interest which he uniformly manifests in the calling which he himself followed for so many years. But he should credit others with being equally interested in particular callings. The AttorneyGeneral has been associated with the waterside workers for many years.
– That is not a maritime matter at all.
– I do not suggest that those workers live on the water as much as do seamen. But Mr. Hughes is as familiar with seafaring men and with the life which they follow as is Senator Guthrie, and he is equally anxious about their welfare. I admit that there is only one Sea Lord in Australia, namely, Senator Guthrie, but there are a few lieutenants. The Attorney-General occupies a very honoured position in Australia and in the industrial world. He has had charge of this Bill in another place, and it is absurd to imagine for one moment that he would allow any provision to be inserted the object of which would be to take away any powers at present enjoyed by those who desire justice from the minor Courts of the country.
– No one suggests that.
– This is one of Senator Findlevs hypothetical cases.
– It is the business of the Attorney-General to understand the position before the Bill is introduced.
– I hope you will recollect that the next time you wish to move an amendment to a Bill.
– With all due deference to Senator Guthrie, who takes a keen and intelligent interest in seafaring men, I maintain that it would make the Bill very ambiguous if we inserted the words included in his amendment. I can imagine how legal men would split straws over tlie question whether any particular case was attributable to the war or not. With the insertion of the words proposed by Senator Guthrie it would make it much more difficult for cases to be dealt with on their merits, as Senator Guthrie suggests, than it would be if the words were not inserted . In its present form the Bill is understandable, and as it does not take away any existing rights as far as seafaring men are concerned, I cannot understand the opposition from Senator Guthrie, because I believe it is due to imaginary causes.
Senator GUTHRIE (South Australia) to show that I have been basing my argument on an imaginary case. Well, let me give him a concrete case. Last October eighty-one men belonging to one of our ships in Melbourne had a quarrel, arising, not out of the war, but out of the conduct of the cook. They were arrested, and one of the most , prominent solicitors in Melbourne was engaged to prosecute them. Does the honorable senator think that the solicitor mentioned would have brought that case before a magistrate if the High Court had been available? This case came before a magistrate, as I said, last October, and it has taken us from then till Wednesday of this week to get it settled.
– Why would he have taken it to the High Court?
– Because, as a solicitor, it would have paid him to do that. The case came before the magistrate every three weeks since last October, and it was only the day before yesterday that a settlement was arrived at.
– I will guarantee that the High Court would have settled it quicker than that.
– I am not so sure. The Minister of Defence this morning informed the Senate that in Brisbane a special magistrate who inquired into a case, probably arising out of the war, had taken three months to consider his decision, which the Minister has not yet received.
– But that is not in the High Court.
– In the High Court the position would have been worse. There are a hundred and one cases affecting seamen that will probably crop up, such as salvage, wages, and compensation, and so on; and are we to allow all these matters to go to the High Court? I am glad that I have received some support for my amendment, and, though I am a strong supporter of the Government right through, so far as the war is concerned, I do not want this special legislation to apply to our civilian population. Senator Findley has told us that the AttorneyGeneral will not do this or that; but honorable senators must remember that it does not rest withwhat the AttorneyGeneral or Senator Findley says. It rests with the lawyers and the Court. Naturally a lawyer will see that a case is taken to the Court where he will get the biggest fees.
– Who will choose the Court?
– The prosecutor will choose the Court.
– In the case of wages or a lien, would not the men be the prosecutors ?
– A lien would be an Admiralty case. I do not know what is the position in some of the other States, but in South Australia one of the local Courts with limited jurisdiction has also Admiralty jurisdiction, and can take a case for wages up to £499, but not over that amount. In a case arising out of the war, I see no danger in allowing the extra powers sought in the Bill ; but I am not prepared to allow that course in cases arising out of a civil contract. What would Senator Findley say if this power were granted in respect to the printing trade, and when a man had an action against his employer, he was compelled to go to the High Court? Supposing that a printer had committed a breach of contract; that he was on a weekly engagement, and had broken it, with the result that the employer prosecuted him, and demanded that the case should be tried in the High Court. In such a case I can readily imagine Senator Findley advocating the same position as I am to-day, with respect to the affairs of seamen. The Minister of Defence has just drawn my attention to the fact that the High Court has Admiralty jurisdiction. I admit that. When the Act was passed I agreed with it, and every one will admit that, in the case of interned ships, the High Court is the proper tribunal to approach. I do not know how far our jurisdiction has gone, because in South Australia one interned ship was released by the Supremo Court, and allowed to proceed; but in Western Australia, Judge Burnside, I think it was, took exactly the opposite view, and would not allow a ship to leave. In South Africa, I believe, they can only be released after the matter has gone to the Admiralty Court in England. Honorable senators will see that we are opening up a very complicated question, and, therefore, I ask the Government to agree to the amendment. There can be no harm in it; while, on the other hand, if the amendment is not inserted, grave injustice may be done to masters, engineers, seamen, firemen, and others engaged in a seafaring life. Now, suppose the Bill is passed in its original form, will a lawyer look up the debate in Parliament to see what was the assurance given by the Minister, or what the Hansard report said? No; he would ask, “What does Parliament say?” And he would find that Parliament said, “ In all matters.” Then, to find what this meant, he would not consult Hansard, or find out what Senator Findley might have said; but he would take up a standard dictionary, and get at the real meaning. He would then find that, as the Act stated, “ All matters of Admiralty or maritime jurisdiction “ shall be referred to the High Court, there would be no getting away from that position. I hope, therefore, that the Committee will follow me in the amendment. I am prepared to go as far as any honorable member of this Senate to assist the Government where there is an international breach, and in order to safeguard the interests of this country; but I think it would be ridiculous to allow any opportunity to take to the High Court cases such as I have referred to, and which may arise out of civil contracts.
– Senator Guthrie has been discussing the question from tlie view-point that the BilL alters the procedure under which all those cases to which he has referred will be dealt with. The Bill does nothing of the kind. Even if the amendment is carried, the words “ in all matters of Admiralty or maritime jurisdiction,” as contained in the measure assented to on 29th October, 1914, will stand, I recognise that no man in public life has given greater attention to the interests of one section of the community than Senator Guthrie, and, personally, I listen, at all times with respect to what he ha3 to say ou that subject. The honorable senator should remember that what he objects to has- been the law of the land for the last six months, and I challenge him to point to one case such a3 those he has mentioned which has been brought before the High Court.
– Then why re-enact the provision ?
– The object of this Bill is to give the High Court power to deal, not with such cases as those to which Senator Guthrie has referred, but with much more important cases. The object is to expedite justice, and if we insert in this measure a provision that it is to apply only to questions arising out of the war, Senator Guthrie must agree, from his own experience in South Australia, that such a provision would enable barristers to carry on a prolonged argument before they came to the trial of a case at all, to decide whether it was one which arose out of the war. The honorable senator has put his case fairly well, and I take no exception to honorable senators putting their views fully before the Committee. But when a matter has been fully discussed, we ought to get to a division upon it. As I do not often have these difficult matters to handle, honorable senators might be disposed to let me down as lightly as they can.
– I should not like it to go out that honorable senators generally take the view of this clause which Senator Guthrie has so repeatedly expressed. The honorable senator has contended that the clause says, in black and white, that all matters of maritime jurisdiction shall be referred to the High Court. The clause says nothing of the kind. It merely provides that the High Court shall have original jurisdiction in all matters of Admiralty or maritime jurisdiction. It does not take away any jurisdiction that already exists in any Court of any of the States in regard to this matter. We cannot take away such jurisdiction from the State Courts, because the powers exercised by those Courts are exercised under an Imperial Act.
– The honorable senator argues that this Bill will increase the powers of the High Court.
– It will give the High Court a jurisdiction which it would not otherwise have. We are empowered by the Constitution to give the High Court this jurisdiction. When we do so we add another Court to the Courts already existing in the States having this jurisdiction. That is all that we do. When the war broke out, and questions relating’ to prizes and to the internment of enemy vessels found within our waters had to be determined, we found that the Courts competent to deal with such cases were the six Supreme Courts of the States. The High Court had no jurisdiction to deal with them. We had the power to invest the High Court with that jurisdiction, and we exercised that
Sower in a measure passed earlier in le session. Now it is proposed that the provisions of that measure shall be added to. Senator Findley characterized the dangers apprehended by Senator Guthrie as imaginary, and I have to confirm what Senator Findley said. There is a great deal of talk about lawyers, on behalf of their clients, taking cases into the higher Courts when they might be successfully prosecuted in inferior Courts. Let me remind Senator Guthrie that the Supreme Court of South Australia has jurisdiction in all matters of debt arising under a contract, or tort, from a farthing up to and beyond £1,000,000. If the honorable senator had a claim against any man for £50, he could take his writ out of the Supreme Court of South Australia. Would the honorable senator or his lawyers do so ?
– They very often do it.
– The honorable senator or his lawyers would take the case to a Court of proper jurisdiction, such as the Court having jurisdiction up to £499, to which the honorable senator referred, and not to the Supreme Court. The Supreme Court in every one of the States has unlimited jurisdiction .in cases involving from one farthing upwards, but does a lawyer take a case of a debt of £20 or £25 to the Supreme ‘Court to pile up costs against his client?
– Lawyers often do.
– I repudiate the insinuations made in a light and easy way by the honorable senator. The Supreme Court is competent to deal with such cases, but it would animadvert most strongly upon the action of the plaintiff or his legal advisers in bothering it with cases of a trivial character, with which an inferior Court might deal. If cases such as those to which Senator Guthrie has referred were brought before the High Court, the Court would point out to those responsible for bringing them before it that there were other Courts -of competent jurisdiction to deal with such mat ters. The High Court would deal appropriately with those who invoked its jurisdiction in matters which might more properly and more expeditiously be dealt with by a local Court. Under section 76 of the Constitution, this Parliament has power to make laws conferring original jurisdiction on the High Court in any matter
Until we exercised that power the High Court had not Admiralty and maritime jurisdiction. We have exercised that power this session. What ismaritime jurisdiction, and how is it enjoyed ? In British possessions provision is made with regard to the exercise of Admiralty and maritime jurisdiction,, to confer it upon any Colonial Court by the Colonial Courts of Admiralty Act of 1890, which is an Imperial Act. I need not quote from the Act at length, but the following section applies: -
Every court of law in a British Possessionwhich is for the time being declared in pursuance of this Act to be a Court of Admiralty or which if no such declaration is in force in the Possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned.
Every Supreme Court of a State, by reason of the fact that it has unlimited’ jurisdiction, became a Court of Admiralty under the Colonial Courts of Admiralty Act. They were the only Courts competent to deal with prize matters, and such matters as Senator Guthrie has referred to, until we exercised our power under the Constitution to invest the High Court with this jurisdiction. Section 3 of the Colonial Courts of Admiralty Act provides that -
Subject ‘to the provisions of this Act any enactment referring to a Vice-Admiralty Court which is contained in an Act of the Imperial Parliament or in a Colonial law, shall apply to a Colonial Court of Admiralty, and be readas if the expression “ Colonial Courts of Admiralty “ were therein substituted for “ ViceAdmiralty Court.”
Quick and Garran, commenting upon; this, at page 798, say -
Until the Federal Parliament legislate under this section -
That is, section 76 of the Constitution - the sole original jurisdiction in Admiralty matters will rest with the Courts of Admiralty; or Vice-Admiralty, as the case may be, in the several States. It seems clear that the constitution of these courts is not in any way affected by the establishment of the Commonwealth. The Constitution of each State and the laws in force in each State continue subject to this constitution (section 106, 108) ; and the identity of each State as a “British Possession” remains unchanged notwithstanding the establishment of the Commonwealth.
So the Courts of the States still have their jurisdiction, and the Parliament of each State has still the power to legislate with regard to the competency of a Court in Admiralty and maritime matters.
– We have taken away some of their powers by the Navigation Act.
– It is proposed by this Bill to invest the High Court with Admiralty and maritime jurisdiction. Unless we do so, the High Court will not have this jurisdiction, and it will remain with the Courts of the States. What is Admiralty and maritime jurisdiction? On this subject, Quick and Garran, at page 800, quoting Story, say -
The jurisdiction claimed by the Courts of Admiralty as properly belonging to them extends to all acts and torts done upon the high seas and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation or business upon the sea or the waters of the sea within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the Courts of common law and the High Court of Admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not its paramount necessity. . . The Admiralty and maritime jurisdiction (and the word” maritime “ was doubtless added to guard against the narrow interpretation of the preceding word “ Admiralty “) conferred by the Constitution, embraces two great classes of cases - one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high seas where all nations claim a common right and a common jurisdiction -
With regard to these cases, it is clear that the Commonwealth authority is the only authority in Australia which presents a united and unbroken front to the other nations of the world - or acts and injuries done upon the coast of the sea; or, at furthest acts and injuries done within the ebb and flow of the tide.
The second class of cases are those dependent upon locality, and for which the Courts in the particular locality concerned would be the appropriate tribunals, and they are referred to in this way -
The second respects contracts, claims and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches - one embracing captures, and quests of prize arising jure belli; the other embracing acts, courts and injuries strictly of civil cognizance independent of belligerent operations.
Unless we invest the High Court with this Admiralty and maritime jurisdiction, matters arising out of the war cannot be appropriately determined, or with anything like conformity, by the different State tribunals. Senator Guthrie himself gave an illustration of this when he explained that in South Australia a Judge arrived at a certain decision, and in Western Australia, in dealing with a similar matter, a Judge arrived at an entirely different decision. We must have one final Court dealing with prizes, the internment of vessels., and matters of that kind. With regard to matters of locality, the State Courts are the appropriate Courts to deal with them. If such cases as Senator Guthrie has referred to were brought, not in the local State Court, but before the High Court, the High Court would express its opinion very strongly, and would take appropriate action to vindicate the authority of the proper tribunals to deal with such matters. The High Court would not, without protest, permit itself to be bothered with matters of that kind. The amendment, if accepted, would render the clause confused, and it would have the effect of giving rise to all kind of arguments as to what were matters arising out of the war. The jurisdiction conferred upon the High Court under this measure will be invoked only in regard to appropriate matters. Those who are interested in proceedings of this kind will, I am sure, invoke the jurisdiction of the High Court only when the circumstances of the case render its invocation appropriate.
– Senator Keating overlooks the fact that we established Admiralty jurisdiction for the High Court in the Bill assented to on the 29th October last. For what special purpose is this Bill brought down ?
– To deal with urgent cases in a way which the previous Act does not give us power to do.
– It is a special Bill brought down to operate during, and for six months after, the war. All the matters raised by Senator Keating are dealt with in the Bill already passed, and the Government have all the power they require, as was shown by the quotations from Quick and Garran. The Act was framed absolutely on Quick and Garran’^ annotations to the Constitution. This Bill is to operate during the war and for six months afterwards, but it will deal with matters other than those arising out of the war. All I ask the Committee to do is to confine its operations to matters connected with the war. A Court is already established to deal with the matters mentioned by Senator Keating, and I am prepared to vote for the Bill if it is confined to matters affecting the war. Senator Keating is prepared to refer even the case of the Canberra, where the trouble was with the cook, to the High Court.
– I am not prepared to agree to anything of the kind.
– The Minister in charge of the Bill would not bring in all matters relating to the shearers. If he did ho would not be here very long, but he allows all matters relating to seamen to be dealt with under the Bill.
– I represent as many seamen as I do shearers, and I am just as much concerned in their welfare.
– Why not provide that there shall be a special Court to deal with shearers who break their agreement, just as much as with seamen ? When a man gets into the Ministry and brings in a Bill, he wants to stick to it, no matter what amendment is proposed. I shall push the amendment to a division.
– The more the Bill is studied, the more justifiable Senator Guthrie’s amendment appears. Any doubts I had as to how I should vote have been removed by Senator Keating’s remarks and his quotation from Quick and 6’arran. They show that Senator Guthrie is quite right in endeavouring to protect the civil rights of seamen, who may be dragged to the High Court on matters not arising out of the war. The Bill was evidently drafted in the atmosphere of the war, and was apparently meant to be applicable only to troubles arising out of it. That is absolutely necessary, but the draftsman was so imbued with the idea that it was a war measure that he took it for granted that every case coming under it would be connected with war conditions. At the same time, he took particular pains to insert a paragraph limiting the duration of the measure.
– That amendment was inserted by another place.
– Then it was done to remove any doubt that the measure was intended to operate only in regard to war conditions. Senator Guthrie’s amendment is a logical corollary of that provision.
– Those opposing the amendment either will not, or cannot, see the point of it. The Act passed last year undoubtedly increased the jurisdiction of the Court in many material ways, but this measure is really introduced to restrict it. Its duration is restricted because it is an emergency measure arising out of the war. Senator Guthrie wants that restriction to apply also to the cases covered by the Bill, but those who oppose the amendment are so imbued with the desire to get the Bill through in its present form that they will not recognise the logic of Senator Guthrie’s position. If the measure is intended to apply only to matters arising out of the war, why do the Government oppose the thing when it is” put into black and white? It would have been better for Senator Findley to try to understand the amendment instead of telling us of the Attorney-General’s great trade union experience. Mr. Hughes is probably a great trade unionist, but there are others who have had as great experience in trade unionism as he has. Some of us were prominent trade unionists before he was known in the movement. We do not regard him as the only maj to be followed, and I, for one, shall not go down on my knees in any hero-worship of that sort. When a measure is brought before us, we have a right to see how it can be improved, no matter how great the experience of the man who introduces it. I am quite prepared to give Mr. Hughes his meed of praise for what li9 has done - just as the man who has introduced this amendment is deserving of credit - but that does not alter the fact that the amendment is closely relevant to the measure, and would help to achieve its real object. I heartily support it.
Question - That the words proposed to be inserted be inserted (Senator Guthrie’s amendment) - put. The Committee divided.
Majority … … 9
Question so resolved in the negative.
Clause agreed to.
Clauses 3 and 4 agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
– In moving -
That this Bill be now read a second time,
I desire to say that it is merely a machinery measure to give effect to the Bill with which we have just dealt. Its principles are embodied in clause 2, which provides that the laws of any State relating; to the qualification of jurors, the preparation of jury lists and jury panels, &c, shall extend and be applied to the trial of indictable offences in the High Court in that State.
– Surely the VicePresident of the Executive Council does not intend to carry this Bill to-day ?
– Without it the measure which we have just passed will be useless, and both are urgent measures.
– I have nothing more to say.
Question resolved in the affirmative.
Bill read a second time and reported without amendment; report adopted.
Bill read a third time.
– I move-
That the Senate, at its rising, adjourn till Thursday next.
– Why not Friday afternoon, at 3 o’clock?
– At 3 o’clock?
– Yes; why not sit only for an hour and a half? Why sit at all ?
– If the honorable senator will give me the precise date upon which the House of Representatives will pass the Estimates-
– What have we todo with that?
– We have a lot to do with it.
– Is there any other legislation with which we can proceed ?
– No. I am hopeful that the other branch of the Legislature will take up the Estimates on Wednesday next, and pass them at that sitting. Any influence that I can exert in that direction will be so exerted. My object in moving that the Senate adjourn until Thursday next is that when we meet again it is intended that the Vice-President of the Executive Council shall move the second reading; of the Insurance Bill. Then I hope that we shall ; be in a position to adjourn the Senate -after we have dealt with the Estimates - until such time as the other Chamber has passed the Tariff.
– The manner in which we are conducting business inthisChamber has become perfectly ridiculous. Early this afternoon we had one exhibition of it, and this motion affords us another. The Senate should have business to occupy its attention. Last Friday we adjourned till3 yesterday, and when we reassembled certain measures were brought before us, and we were assured that the passing of them was a matter of such urgency that we were prevented from giving them adequate consideration. I suppose that this sort of tiling will be continued until an effective protest is made against it. Whilst we have been rushing through these measures this afternoon, after a most perfunctory debate, the sitting of the other Chamber has been suspended. Yet we know that there is a glut of business in that Chamber. I suppose that when the Estimates reach us we shall be again asked to rush them through. The same reasons will then be urged why honorable senators should not exhaustively criticise them, as has been urged to-day. Is this a proper way in which to conduct our business? We are rushing measures through just as if they were passing through a sausage machine. A change should be made in the treatment to which the Senate has been subjected during the last few weeks. If we do not protest we shall have no improvement. The time is approaching when the Senate should demand to be supplied in good time with a fair share of the business to be dealt with, and not be called upon to rush it through at each week-end or at the end of the session.
– We shall get our share when the Tariff reaches us.
-The Tariff has not yet been touched by another place. When it does reach the Senate, I suppose we shall have advanced the same old reasons for allowing the sausage machine to do what it has been doing of late.
– The honorable senator is not in order in referring to the Senate as a “ sausage machine.” I ask him to withdraw the remark.
– If my remark is a reflection on the sausage machine, I am sorry.
– The honorable senator must not attempt to ridicule my ruling. I ask him to comply with it.
– The reference to the “ sausage machine “ was, perhaps, too strong ; I should have done better had I referred to machine politics in the Senate. It cannot be denied that we are not being properly treated. The Government should bring its business before the Senate in a way that will enable us to give it full and careful consideration. Measures are kept so long before another place that they grow stale, so that when at last they do come before us all interest in them has disappeared.
Question resolved in the affirmative.
Kalg oorlie to Port Augusta Railway : Teesdale Smith Contract: - Cockatoo Island Dockyard : Answers to’ Questions - Commonwealth Map - War News : Unofficial Reports - Wages of Assistant Armourers - Australian Coastal Trade : Black Labour.
Motion (by Senator Pearce) proposed -
That the Senate do now adjourn.
.- I wish to ask the Minister representing the Minister of Home Affairs whether he can inform me what was the total amount paid to Mr. Teesdale Smith for embankments on contract work on the line from Port Augusta to Kalgoorlie. I desire, also, to refer to the answers which I received yesterday to a question that I put relative to the Cockatoo Island Dockyard. I should be much better pleased if the Minister, instead of giving me misleading information, would refrain from supplying any information whatever. I do not say that the honorable senator is responsible for the misleading information of which I complain; but the answers given recently to a question on the same subject by Senator Grant were evasive, while the answers given yesterday to the questions which I put - and put in a way that rendered it impossible to evade them - are, I believe, quite incorrect. The answer to one question does not fit in with that given to another. The reply to the first of the series that I put was that the machine to which I referred was not there for the purpose of making turbines. In the next answer the statement was made that the machine was there, but that the process would be slow, as the class of turbines mentioned was of a different character. As a matter of fact, it is not; it is only the gearing that is different. I trust that the Minister will direct his officers to supply proper answers to my questions.
– I desire to ask the Minister representing the Minister of Home Affairs whether he is now in a position to supply me with the information for. which I asked this morning relative to the Commonwealth map?
– I do not think the Minister of Defence quite understood the purport of a question that I put to him this morning as to whether, in his opinion, it was not advisable to endeavour to impress upon the Imperial defence authorities the necessity of altering the method of censorship applied to war news sent to Australia. My reason for putting the question was that, in this morning’s newspapers, there appeared an official report as to an engagement in the Dardanelles, but in that official report no mention was made of any casualties to Australian troops. There was, however, published an unofficial report stating that in a communique issued from Constantinople it was stated that the Allies had suffered a loss of 400 men, whilst some 200, including a number of Australians, had been captured. My contention is that such information should not be allowed to come out here unless side by side with it there can be published an official intimation from the authorities in Great Britain as to its correctness or otherwise. The suspense is worse than a knowledge of the actual facts. In Australia to-day there are no doubt thousands of relatives of Australian soldiers who, because of this unofficial report, are suffering great suspense. They do not know whether it is true or not. Such unofficial reports should not be allowed to leave Great Britain unless there can be published with them either an official confirmation or denial of the information they contain. “Will the Minister make representations to the Imperial defence authorities to that effect?
– May I ask the Minister of Defence whether he has made any representations relative to the wages of assistant armourers - a subject to which I referred during the debate on the Ministerial statement? I know that he has not yet had time to secure a reply, but I wish to impress upon him the urgency of the matter.
– I wish to call the attention of the Minister representing the Minister of Trade and Customs to the fact that the coastal steam-ship trade of Australia is being largely augmented by black labour.
– Does the honorable senator say that coloured labour is being employed on vessels trading along the Australian coast?
– Yes ; on steamships that are carrying passengers at cut rates. I know that there is some difficulty in the way of proclaiming the whole of the Navigation Act, owing to the fact that all the regulations necessary under it have not yet been prepared. But will the Minister inquire from his colleague whether there is any insuperable difficulty in the way of proclaiming that part of the Act which deals with the coastal trade? If there is, I should like to be informed whether it cannot be removed by legislation before this evil becomes so pronounced as to make it almost impossible to deal with it. I feel sure that the Senate is anxious to see some part of the Navigation Act brought into force without further delay. Therefore, I again ask the Minister to consult his colleagues, with a view to bringing into operation the part relating to the coastal trade.
– In reply to the question submitted by Senator McDougall and in accordance with a promise, I desire to give some information. His question was -
What was the total amount paid to Mr. Teesdale Smith for constructing embankments on his contract on the Port Augusta line?
The reply is £21,475 15s. Senator Keating has asked whether the map of Australia recently prepared by the Home Affairs Department is available for the public. The maps which, so far, have been prepared are only what are known as proof maps. They have been submitted to various authorities, such as the Admiralty and the Royal Geographical Society. It has been urged by honorable senators that copies ought to be exhibited in Parliament House as early as possible, and copies have been specially prepared for that purpose, but they are not yet available. We hope to have copies available to the general public at an early date. I will bring the representations of Senator Guthrie under the notice of my colleagues, and see what can be done.
– I regret that Senator McDougall has not told me in what particular the replies to his questions were contradictory. He is not present now, but during next week I will ask him to supply me with particularsof what he requires. I do not know how the answers are contradictory. Regarding the question of censorship raised by Senator O’Keefe, we must take care that, in trying to avoid one evil, we do not get into a greater evil. One of the severest criticisms launched against the censorship both in England and Australia, in some sections of the press at times, is that the censors are keeping news from the. public. There are two kinds of news, namely, news which comes from official and local sources, and news which is circulated from enemy or neutral sources. Some of the news referred to by Senator O’Keefe comes from enemy sources. He suggests that the publication ofsuch news should be stopped until the official account is supplied. That is a very easy suggestion to make; but one can quite conceive a set of circumstances in which great objection would be taken outside. The public might say, “We are not allowed to know; you conceal the facts fromus.” In allowing the publication of enemy communications, the public have the assurance that the worst which can be said is allowed to appear. That is to say, they not only get the British version of what took place, but, side by side with that version, they have a version from Berlin.
– My complaint is that you have not the British version side by side with the other.
– As a matter of fact, we have the statement which has been read to Parliament that our troops hare been engaged.
– Quite so; but nothing relating to casualties.
– No; but the statement is true that the troops have been engaged. The statement that there have been casualties is, so far, only an enemy statement. If we ask the British Government to prevent any of these statements from enemy or neutral sources from coming to Australia until side by side therewith they send their own version, I can imagine some honorable senators rising here in the future and denouncing us for not allowing news from other than official sources to be circulated. However, I will look into the question. There is something to be said for the honorable senator’s suggestion, and I can also see something to be said against it.
– Is it a fact, as rumoured, that there is a large number of Germans and Turks on the staff of censors ?
– Order! I have allowed this discussion to proceed because
I thought that, perhaps, it might be convenient to honorable senators that any answers to questions which Ministers had available should be given before they separated for the week; but I point out that in our Sessional Orders it is provided that the question, “ That the Senate do now adjourn,” shall be put at 4 o’clock on each Friday, and put without debate. The Standing and Sessional Orders were suspended for a specific purpose to-day. That purpose has been accomplished, and it seems to me that it is entirely out of order to have a general discussion going on after 4 o’clock. I wish to announce that, while it is allowed on this occasion, in future it will not be permitted while I have the honour to occupy the chair.
– I have almost completed my reply. Senator Needham has raised a question as to the wages of assistant armourers. When he spoke a few days ago I understood him to say that since the matter was reviewed by myself an award has been given by the Federal Arbitration Court in respect of a similar occupation. If that is so, I will see whether the terms of that award justify a review of my decision.
Question resolved in the affirmative.
Senate adjourned at 4.48 p.m.
Cite as: Australia, Senate, Debates, 30 April 1915, viewed 22 October 2017, <http://historichansard.net/senate/1915/19150430_senate_6_76/>.