12th Parliament · 1st Session
The President (Senator the Hon.W. Kingsmill) took the chair at 3 p.m., and read prayers.
asked the Minister representing tho Treasurer, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Minister representing the Minister for Markets, upon notion -
– The answers to the honorable senator’s questions areas under : - 1and 2. Oneof the objects of the regulations governing the exportation of eggs is to arrive at uniformity in the marking, irrespective of the State of shipment. The marking of the eggs themselves is governed mainly by the British Merchandise Marks Act, which does not recognize the name of any individual State as an indication of the country of origin, hence the word “ Australia “ has been adopted. Provided the containingcases bear the marking provided for in the Commerce (Export Dairy Produce) Regulations, no objection will bc taken to exporters in any particular State adding some other approved distinctive mark to the cases.
– On the 22nd July, Senator J. B. Hayes asked the Minister representing the Minister for Health the following questions, upon notice: -
As the matters raised come within the functions of the Department of Markets, the following information has been supplied by tho Minister in charge of that department : -
Senator Sir GEORGE PEARCE (Western Australia) [3.7]. - I move -
That StatutoryRules 1931, No. 76, Waterside Workers’ Regulations, and No. 77, Wateraide Employment Regulations, be disallowed.
As a case is now before the court in relation to these regulations, I do not propose to say anything about them excepting that, in view of the possibility of an early adjournment of the Senate, this motion should, in my opinon, be carried. I understand that the carrying of it would not in any way interfere with the trial of the case before the court. It is desirable that these regulations should be disallowed in order that the Senate may be understood to voice its continued objection to the gazettal of these regulations. I trust that the Government will accept this final intimation, and not reinstate these or any like regulations.
. - Considering the circumstances associated with these regulations, I am somewhat surprised that this motion should have been moved. As there is a case now before the court, the Senate should do nothing which might in the slightest degree interfere with the course of justice. In any case, the carrying of the motion will serve no purpose other than that mentioned by the Leader of the Opposition (Senator Pearce), namely, that it will express the objection of a majority of the Senate to these regulations. In my opinion, it would have been better had the matter been allowed to rest until the court had dealt with the situation. I realize that it will be useless to. discuss the motion at length, because the Opposition is determined to adopt a certain attitude towards these regulations. The Government is just as determined to adhere to the stand that it has taken up. Therefore, anything that might be said is not likely to influence either the Government or the Opposition. The Government, having a minority in the Senate, can only voice its opinions, realizing that, in so doing, it is as a voice crying in the wilderness.
– In connexion with this matter, I received, two or three weeks ago, from Lieutenant-Colonel Chevens, President of the Imperial Ex-Service Association of Australia, the following communication, which I think that should be placed on record for the information of honorable senators : -
A deputation of waterside workers called upon me on 9th March last, many of whom are members of this association. They represented about 400 Imperialex-service men of the 1.700 volunteer workers on the wharfs employed during and since the strike in 1928. all of whom had lost their jobs, as the Federal Government had refused them permission to work by their recent action in confining the labour on the wharfs to federation workers and ex-Australian Imperial Force men. A large number of them are members of the Casual and Permanent Wharf Labourers Union.
They made four definite complaints -
The Commonwealth Government was under an obligation to them as assisted migrants to see that they were satisfactorily settled. Instead of complying with this obligation,’ even so far as the difficult times permitted, the Government had caused their work to be taken from them, and thus also prohibited them from supporting their Australianborn children.
They claimed as men who fought in the Great War, the same treatment as was given to Australians. In England no preference was shown against the Australian-born applicant for work, but here the Imperial ex-service man came last for consideration.
After being provided with licences to work, and having paid for such licences, they had been deprived of the opportunity of using them, and had been given the sack in order that employment might be given to federation workers, many of whom had served with neither the Australian nor the Imperial forces, and who had struck work in 1928.
Having performed a public duty satisfactorily for two and a half years, they thought they should expect from the Australian Government the right to continue in that work so long as they remained satisfactory workers, and that they should not bo expelled to make way for people who wore not ex-soldiers either British or Australian, and who had refused to do the work in 1928.
The case of these menhas been represented to the Federal Government without success. Therefore, representations have now been made to the British Government, also to the Empire Service League, and to members of the House of Commons.
I read the communication in the belief that it would interest honorable senators to know the view of the Imperial ExService Association upon this matter.
– My information is that quite a number of wharf workers who claim to be returned soldiers were never at the front, and are using certificates which belong to other men.
Question - That the motion be agreed to - put. The Senate divided. (President - Senator the Hon. w. Kingsmill.)
Majority . . . . 16
Question so resolved in the affirmative.
– by leave - I move -
Whereas the Imperial Conference held at London in the year 1930 by resolution approved the Report of the Conference on the operation of Dominion Legislation (which is to be regarded as forming part of the report of the said Imperial Conference) subject to the conclusions hereinafter recited :
And whereas the said Imperial Conference by resolution recommended -
that the statute proposed to be passed by the Parliament at Westminster should contain the provisions set out in the schedule annexed to the said resolution;
that the 1st December, 1931, should be the date as from which the proposed statute should become operative;
that with a view to the realization of this arrangement, resolutions passed by both Houses of the Dominion Parliaments should be forwarded to the United Kingdom, if possible, by the 1st July, 1931, and, in any case, not later than the 1st August, 1931, with a view to the enactment by the Parliament of the United Kingdom of legislation on the lines set out in the schedule annexed ;
that the statute should contain such further provisions as to its application to any particular dominion as are requested by that dominion:
Now therefore the Senate resolves that the Government of the Commonwealth be authorized to request and consent to the submission by the Government of the United Kingdom to the Parliament at Westminster of a bill for a statute containing the provisions set out in the following schedule, and the enactment of the said statute: -
Clauses in Proposed Legislation.
In accordance with the recommendation in paragraph 43 of the Report of the Conference on the Operation of Dominion Legislation, a clause as follows: - “ It is hereby declared and enacted that the Parliament of a dominion has full power to make laws having extraterritorial operation.”.
In accordance with the recommendation in paragraph 53, a clause as follows: - “(1.) The Colonial Laws Validity Act,1865, shall not apply to any law made after the commencement of this act by the Parliament of a dominion. “(2.) No law and no provision of any law made after the commencement of this act by the Parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such act, and the powers of the Parliament of a dominion shall include the power to repeal or amend any such act, order, rule or regulation, in so far as the same is part of the law of the dominion.”.
In accordance with the recommendation in paragraph 55, a clause as follows: - “(1.) No act of Parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend to a dominion as part of the law of that dominion unless it is expressly declared in that act that that dominion has requested, and consented to, the enactment thereof. “(2.) In the case of the Commonwealth of Australia, therequestsand consent referred to in the last preceding sub-section shall be construed to mean the request and consent of the Parliament and the Government of the Commonwealth.”.
In accordance with the recommendations in paragraph66, clauses as follows: - “ Nothing in this act shallbe deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of this act. “Nothing in this act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws onany matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia or to authorize the Parliament or the Government of the Commonwealth without the concurrence of the Parliament and Government of the States concerned, to request or consent to the enactment of any act by the Parliament of the United Kingdom on any matter which is within theauthority of the States of Australia not being a matter within the authority of the Parliament or the Government of the Commonwealth of Australia.”.
In accordance with the recommendation in paragraph 81, a clause as follows: - “Notwithstanding anything in the Interpretation Act, 1889, the expression ‘ Colony ‘ shall not, in any act of the Parliament of the United Kingdom passed after the commencement of this act, include a dominion or any province or State forming part of a dominion.”.
In accordance with the recommendations in paragraph 123, clauses as follows: - “Without prejudice tothe generality of the foregoing provisions of this act, sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, 1894, shall be construed as though reference therein to the Legislature of a British possession did not include reference to the Parliament of a dominion. “ Without prejudice to the generality of the foregoing provisions of this act section four of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved for the signification of His Majesty’s pleasure or to contain a suspending clause), and so much of section seven of that act as requires the approval of His Majesty in Council to any rules of court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any dominion as from the commencement of this act.”.
A new clause as follows: - “ ( 1 . ) None of the following sections of this act, namely (clauses 1, 2, 3 and6 above) shall extend to the Commonwealth of Australia as part of the law thereof unless that section is adopted by the Parliament of the Common wealth and any act of that Parliament adopting any section of this act may provide that the adoption shall have effect either fromthe commencement of this act or from such later date as is specified in the adopting act. (2.) The Parliament of the Commonwealth of Australia may at any time revoke the adoption of any section of this act.”.
Certain Recitals in Proposed Legislation.
In accordance with the recommendation of paragraph 54, a recital as follows: - “And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the dominions as part of the law ofthat dominion otherwise than at the request and with the consent of that dominion.”.
In accordance with the recommendation in paragraph60, a recital as follows: - “And whereas it is meet and proper to set out by way of preamble to this act, that inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the dominions as of the Parliament of the United Kingdom.”.
This motion carries a stage further the process outlined by the Imperial Conference of 1926 for bringing the legal status of the dominions, in the British Commonwealth of Nations, into harmony with the accepted constitutional position. Indeed, it carries the process to the penultimate stage of requesting the British Parliament to pass the statute necessary to give effect to the proposals. The final stage will be the passing of the statute by the Parliament atWestminster, at the request of the dominions concerned.
The object of the statute is first to complete, and next to give legal recognition to, dominion status as we know it in practice. It may be said - indeed it has been urged in some quarters - that there is no need for this formal statutory recognition, because the equal and autonomous status of the dominions exists already in reality, and does not need the further support of British legislation. This, to a certain extent, is true. But there are certain respects in which the existing state of the law places definite limitations upon dominion status, which nothing but British legislation can remove.
The first of these is the law governing inconsistency, or repugnance, between British and dominion acts of Parliament. By the Colonial Laws Validity Act of 1865, any colonial law which is in any respect repugnant to an act of the British Parliament extending to the colony, which is defined as meaning “ applicable to the colony by express words or necessary intendment “, is, to the extent of the repugnancy, absolutely void. It is perfectly true that at the present day, the British Parliament docs not pass acts extending to a dominion without the concurrence of the dominion, but that is a recent development. Many important acts on the British statute-book extend to the dominions; and in many cases, great uncertainty exists as to how far they so extend. A notable instance is the Merchant Shipping Act of 1894. - itself a consolidation of numerous acts reaching far back into history. Parts of it are expressed to apply to all the British dominions; parts of it are expressed not so to apply. Many of its provisions are in general words, and the question whether they apply to the dominions is a question of construction which is in doubt until settled by a court - and sometimes afterwards.
In one case at least, provisions of a Commonwealth act’ have been held void for repugnance to a law of the United Kingdom - Union SS. Company v. Com- mowwealth, 36 C.L.R. 130. Doubts have also arisen in many other cases. The other limitation on dominion status is the rule, the extent of which is the subject of much doubt, that, in general, a dominion has no power to pass a law having extraterritorial effect; that is, to make it an offence for a person to disobey a Commonwealth law when outside the Commonwealth.
As generally stated, this rule applies to prevent the. extraterritorial operation of thelaws of a dominion even where such operation is ancillary to the peace, order, and good government of the dominion. If, as the weight of judicial authority seems to indicate, the rule has this wide application, it would, for instance, be impossible for a Commonwealth law to punish a person, found in Australia, for having entered into a conspiracy in England to commit an offence against Commonwealth law, say, to forge Commonwealth bank-notes.
At the Imperial Conference of 1926, a committee was formed with the Right Honorable the Earl of Balfour as chairman to investigate the fundamental questions of inter-imperial relations. The report of that committee which was adopted by the conference, and which is known as the Balfour Report is a very notable document. It begins by defining in memorable words the real position and relations to-day of the Mother Country. “ They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations “. The report proceeds to point out that the existing forms of government are not wholly in accord with the status. That is to say, in the evolution of the free and equal status of the dominions, legal theory has lagged behind constitutional practice. The report with which honorable senators are familiar deals with a number of questions of inter-imperial relations which do not involve any change in the law of the United Kingdom, and are therefore not relevant to the resolution now before the Senate.
One important section of the report, however, deals with the operation of dominion legislation. In this connexion, it is recommended that steps should be taken by Great Britain and the dominions to set up a committee with terms of reference on the following lines: -
To inquire into, report upon, and make recommendations concerning -
Existing statutory provisions requiring reservation of dominion legislation for the assent of His Majesty, or authorizing the disallowance of such legislation;
(a) The present position as to the competence of dominion parliaments to give their legislation extraterritorial operation ;
The practicability and most convenient method of giving effect to the principle that each dominion should have power to give extraterritorial operation to its legislation in all cases where such operation is ancillary to provision for the peace,order, and good government of the dominion.
Till! principles embodied in or underlying the Colonial Laws Validity Act, 1805, and the extent to which any provisions of that act ought to be repealed, amended, or modified in the light of the existing relations between the various members of the British Commonwealth of Nations as described in this report.
Another section of the report dealt with merchant shipping legislation as a specially important instance of the need for co-ordination of law and administration. The report contains a recommendation that the general question of merchant shipping legislation should he remitted to a special sub-conference to be held in conjunction with the committee on the operation of dominion law which should be invited “ to consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in constitutional status and general relations which has occurred since existing laws were enacted.”
The report of the Balfour Committee was adopted by the Imperial Conference of 1926, and in due course in 1929 the suggested committee, which is usually referred to as the “ Conference on the Operation of Dominion Legislation,” or shortly, the “ O.D.L. Conference,” sat in London. Great Britain and all the dominions were represented, as also was India. Australia’s representative was Sir Harrison Moore. Its recommendations are based upon the principles of the Balfour report, and are in the form of definite and precise proposals for carrying them into effect.
Shortly, they proposed, amongst other things, a. declaratory act of the British Parliament passed at the request and with the consent of the parliaments of the dominions, which will definitely recognize and place on a legal footing the equal status of the parliaments and governments of the United Kingdom and the dominions.
At the Imperial Conference of 1930 the report of the Operation of Dominion Legislation Conference was accepted as a basis, and there was no departure, except by way of verbal revision, from the recommendations of the conference as regards the proposed Statute of “Westminster. The precise contents of that statute, so far as they concern Australia, are set out in the schedule to this resolution.
The statute proposes three fundamental changes in the law. The first of these is a plain declaration and enactment that the parliament of a dominion has full power to make laws having extraterritorial operation. The meaning of this is that, after the enactment of the Statute of Westminster, no law of a dominion can be held to be invalid merely on account of the fact that it purports to control persons outside the dominion, or to punish persons inside the dominion in respect of things done outside.
The second principle is that no law hereafter made by the parliament of a dominion shall be void on the ground of inconsistency with the law of England.
The third principle is that no act of parliament of the United Kingdom hereafter passed shall extend to the dominion as part of the law of the dominion unless it is expressly declared in the act that the dominion has requested and consented to its enactment.
These last two principles involve the repeal of the Colonial Laws Validity Act 1865 so far as a dominion is concerned. To meet the position of those dominions which have a more or less rigid constitution - that is to say, a constitution which can be amended only by special procedure, and not by the ordinary process of legislation - it is proposed to insert provision to prevent the statute having the effect of enabling the parliaments of those dominions to alter their constitution in any other than the established manner. Thus the whole of the Commonwealth will have no greater power to amend the Commonwealth Constitution after the passage of the Statute of Westminster than it has at present. The rights of the States with regard to the maintenance of their constitutional powers are, therefore, fully safeguarded.
In the case of Canada, some difficulty was caused at the conference by reason of the fact that the British Worth America Act, which is the Constitution of Canada, contains no provision for its amendment, and amendment of that Constitution, when necessary, is effected by the Parliament of the United Kingdom, upon representations made from Canada. The precise share in those representations, which is taken by dominion and provincial authorities respectively, is nowhere authoritatively laid down, and consequently the Canadian representative at the conference reserved for further consideration the form of the provision for Canada on this point in the Statute of Westminster.
An incidental provision of the statute is an alteration of the Interpretation Act of the United Kingdom for the purpose of excluding dominions from the meaning of the word “ colony “ as used in future acts of parliament. So far, the provisions of the statute relate to future legislation by the Parliaments of the! United Kingdom and the dominions respectively; but there are two special cases in which it was thought desirable to alter the application to the dominions of the existing British laws. The first case was the provision of the Merchant Shipping Act 1894, as to the powers of colonial legislatures. Section 735 of that act requires the reservation for the King’s approval of tho laws made by the legislature of any British possession relating to ships registered in that possession. Section 736 requires laws made by the legislature of a British possession, regulating the coasting trade of the possession, to contain a suspending clause providing that they shall not come into operation until the King’s pleasure has been signified. These two sections of the Merchant Shipping Act are to be construed as not applying to the parliament of a dominion.
The other case is that of certain provisions of the Colonial Courts of Admiralty Act, which require certain laws to be reserved for the King’s pleasure, or to contain a suspending clause, and which also require rules of court to await the King’s approval. These provisions shall cease to apply in any dominion.
One other matter is required to be dealt with as a consequence of the changed relations of the British and Dominion Parliaments. The King is the King not only of the United Kingdom, but also of the dominions. But the law relating to the succession to the Throne and the Royal Style and Titles is a law passed by the Parliament of the
United Kingdom. It is obviously a matter in which uniformity throughout the British dominions is essential. It is, therefore, proposed to insert in the preamble to the statute a declaration that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, it is united by a common allegiance to the Crown. It would be in accord with the established constitutional position that any alteration in the law touching these matters should hereafter require the assent of all the dominion parliaments as well as the Parliament’ of the United Kingdom.
It is clear that the passing of this statute will create a fundamental change in the legal relations of the United Kingdom and the dominions. Substantially the existing limitation on the powers of dominion legislatures will disappear, and the United Kingdom will formally assume a place of equality in status with the dominions. It will not, however, involve any weakening of the real bond of union between the different nations of the British Commonwealth. That bond consists of common race, common traditions, and common interests, and is symbolized by the common Crown under which the Commonwealth is united.
In conclusion, I desire to draw attention to certain safeguards that are contained in this resolution. It will be seen by a reference to clause 3 that the Government can make a request for the extension of British legislation to Australia only after the consent of the Commonwealth Parliament has been obtained. The stipulation at the end of clause 4 is intended to make it clear that there will be no invasion of State rig’ht,3. Requests to the British Parliament to make laws on matters that are within the exclusive powers of the States are prohibited.
The first paragraph of clause 7 is substantially identical with a clause proposed by the New Zealand Government, at the Imperial Conference, to meet the position of New Zealand. It means that, after the statute has been passed, the Commonwealth Parliament will still have the option of adopting, or of abstaining from adopting, any of the constitutional changes proposed. The second paragraph provides further that the Commonwealth Parliament, if it thinks fit, may revoke its adoption of any of these changes.
– Will the Minister be good enough to explain in a few words exactly what is meant by the resolution arrived at by the Imperial Conference of 1930?
– It means substantially that there is to be removed from the laws of both countries certain disabilities under which the dominions particularly have operated. The fruits of the conference are epitomized in the resolution that I have quoted, and the reasons are those that I have given. One can well appreciate the broadmindedness of the gentlemen who at that conference arrived at so eminently sane and tolerant an agreement. Although there may not be uniform satisfaction, it appears to me that the conference has gone a long way towards establishing equality of status between the dominions and the Mother Country.
– Why were not all the dominions unanimous?
– So far as I know, the resolution of the conference was agreed to unanimously. In all probability there were differences of opinion in such a conference, and compromises giving the greatest measure of satisfaction possible to the whole body were the result. It would be a somewhat delicate process to bring into harmony in one resolution the ideas of the different units ; but the effort appears to have been to arrive at a concrete proposal that would apply to all parties. The result is the resolution that we are now considering. I commend it to the Senate, and trust that it will have a speedy passage.
Senator Sir GEORGE PEARCE (Western Australia) [3.52]. - I have no particular enthusiasm for this resolution. It may be that I get more old-fashioned as I grow older. I confess that “ the British Empire “ with all its implications, has all along been good enough for me. I cannot arouse any enthusiasm for this new-fangled idea of a “ British Commonwealth of Nations “. I have been a legislator for thirty years in this Parliament, yet I have never been conscious of any limitation of our power of self-govern ment, or of any interference with that power by any outside body. I am aware that there are legal limitations to our powers of government; but I have yet to learn that those limitations have ever inflicted any injury on the body politic. Judging by some of the experiments within the Commonwealth, I am inclined to think that it is a good thing for us that those limitations exist. I admit that the present relations between the various parts of the British Empire are illogical; they cannot be defended on a strictly legal basis. But the important thing about them is that they work smoothly and satisfactorily. It is a rough and ready system; but the way in which the Empire has carried on in the past shows that, implemented as it is, with that sound common sense which is the oil that makes the machineryrun smoothly, it has worked satisfactorily. The present relations between the Mother Country and the dominions provide many advantages to the dominions, to some of which I shall presently refer. In this new position we shall open ‘ a wide field for unemployed lawyers to work in. Whenever a number of lawyers get together to define a situation, we find that very soon a new body is created to find loopholes in what they have set up. It seems to me that while this attempt to define in legal language, and to set out in legal statute form, all that has been said by the Leader of the Government (Senator Barnes) with regard to what Sir Harrison Moore has stated in his report may legalize certain things, there will stillbe plenty of illegalities arising from this effort to demarcate our relations. This interesting resolution arises from a resolution which was passed at the Imperial Conference of 1926, at which the following declaration was made in relation to the United Kingdom, and the dominions: -
They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.
I do not believe that that is an accurate statement of the position.
– Australia was represented at that conference.
– That is so. The then Prime Minister, of whose government I was a member, represented Australia. Nevertheless, I do not think that that is an accurate statement of the position. Is it a fact that the various parts of the British Empire are equal in status? Will any honorable senator say that the Parliament of the United Kingdom and the Parliament of Australia, or Canada, or South Africa are equal in status in any aspect of external affairs?
– It is ridiculous to say so.
– It cannot be a fact unless they are all independent nations. One of those par’liaments or governments must speak for the whole of them.
– And rightly so, too.
– I agree with the honorable senator. The right authority to speak on behalf of the parliaments and governments of the various parts of the British Empire is the Parliament or Government of the United Kingdom. Foreign nations do not recognize the Government of Australia as speaking for the British Empire; they recognize the Government of Great Britain. It is, therefore, idle to say that, in respect of external affairs, we are equal in status. We are not. I object to the term “ The British Commonwealth of Nations”. The old term, “The British Empire” is good enough to express what we are, for, after all, we all are parts of an empire. Nor do I think that Ave lose anything by giving preeminence to the Parliament or Government of the United Kingdom in connexion with foreign affairs. On the other hand, I submit that the dominions gain a great deal.
Following on that resolution, a committee was appointed. It has submitted a report on the operation of dominion legislation, and merchant shipping legislation. There is also a report by Sir Harrison Moore, who at the conference represented the Government of the Commonwealth of Australia. That committee of jurists - its members were practically all jurists - was asked to say what steps would be necessary to implement the resolution agreed to at that Imperial Conference, if the dominions desired to implement it. This report does not recommend that steps should bc taken in that direction; it says that if the dominions want to express in legal language what should be done to achieve certain ends, certain things therein set out are necessary.
On pages 8, 15, and 26 of the report, honorable senators will find three paragraphs dealing with the matters raised by the Vice-President of the Executive Council (Senator Barnes) in respect of which the committee says that, if the dominions want to define in legal language their position in the light of that resolution, certain, things need to be done. It is one thing to declare that a dominion has a certain power or status; it is another thing to exercise that power or status. Let us take a simple illustration. In respect of navigation laws, the various parts of the British Empire are not equal in status. I shaH set out the position, as I understand it. I realize that, in a matter of this kind, I speak only as a layman; and that probably lawyers will point to what they consider to be the foolishness of my remarks. But as I understand the position, it is that the Commonwealth Parliament has power to legislate in respect of its own shipping, and also in respect of coastal shipping within its territorial waters; it can legislate in respect of all ships on the Australian register, whether Australian; British, or foreign.
– The Merchant Shipping Act interferes with that right.
– We say, in effect, that, provided a British ship complies with certain conditions in regard to wages, it can come on the Australian register and trade on our coast; that if it does not comply with those conditions it cannot be placed on the Australian register, arid, therefore, cannot take part in our coastal trade. We do not say that only Australian ships shall take part in the Australian coastal trade; we say that British ships which desire to participate in that trade must comply with certain conditions. In so doing, we override the Merchant Shipping Act. Our law is superior to the
Merchant Shipping Act because, in the Australian Constitution, the British Parliament has given us that power. But let us suppose that Ave are going to implement what the Imperial Conference has said in regard to navigation, and propose to legislate in regard to foreign trade. What happens at present? Once an Australian ship gets outside Australian territorial waters it has all the advantages and all the protection possessed by a British ship, because it can take advantage of the provisions of the Merchant Shipping Act and the British consular service throughout the world. If Australia is going to be really independent, equal in status with the Mother Country, one obligation that will devolve upon us will be to set up our own consular service throughout the world. There is an alternative to that; we may express our independence in regard to navigation and legislate for our ships all over the world, and then ask the British Government to do these things for us through the British consular service. That would be a fine type of independence !
If we mean, to be really independent, let us see what is involved. If we are going to have an Australian Merchant Shipping Act, and intend to follow our ships throughout the world, we shall need some one to police it. So far as British ships are concerned, that work is now done by the British consular service. I do not know whether the Commonwealth is looking for that kind of expense at this juncture, and- intends to set up its own consular service. What are the disadvantages of the present system? Our ships can now go anywhere; and, wherever they go, they get all the advantages and all the protection of the British Merchant Shipping Act, and they have the benefit of the facilities provided by the British consular service. Those are great advantages. What loss of dignity is there in allowing the British Parliament to legislate for us in that connexion? The British. Government raises money from the British taxpayer to provide the facilities by which trade is carried on by Australian ships in foreign ports; the British consular service, which is paid for by the British taxpayer, is available as much for our ships as for the ships of Britain. The position in respect of navigation is one of the practical aspects of this question. I. have yet to learn that Australia has suffered any disadvantage by reason of thelimitation of our power to legislate inrespect of navigation. I have heard my colleagues from Western Australia, and also honorable senators from South Australia and Tasmania, complain of the many disadvantages we have suffered as a result of our power to legislate in respect of navigation in Australian waters. I do not know that that brilliant effort has been such a conspicuous success that we should desire to extend it.
– This resolution cannot improve the position.
– We were all enthusiastic about that legislation when it was passed.
Senator Sir GEORGE PEARCE.Yes ; but since then we have come to doubt whether it has conferred on the Commonwealth the benefits which we then anticipated.
– It was adopted with the unanimous support of all parties.
– Yes, and it was hailed as a wonderful act of statesmanship; but, as we have since learned, one result was the creation on the Australian coast of a shipping monopoly, which has taken toll of every other industry in the Commonwealth, and has seriously interfered with interstate freetrade. Has anybody been inconvenienced because of the seniority, if I may put it in those terms, of the British Parliament in extraterritorial navigation? I am sure the answer must be in the negative. No one has been inconvenienced; on the other hand, the existing arrangement has been extremely advantageous to the Commonwealth.
What I fear is that once we attempt to lay down in strict legal terms the relationship existing between sister dominions, or between one dominion and the Mother Country, friction may arise. It is true that there has been a little friction in Ireland and in South Africa; but, if we bear in mind the conditions under which the grant of self-government was made to Ireland, we must admit that the result has demonstrated the wisdom of the course adopted. Similarly, when we consider the perturbed conditions that existed in South Africa prior to the grant of self-government, we must acknowledge that, on the whole, the relationship between the Union and the Mother Country has been most satisfactory. I know of no friction between the Commonwealth and the dominion of New Zealand, or between the Commonwealth and the Mother Country, or any other dominion of the British Empire.
In its original form, there were certain important omissions from the resolution which, I am glad to say, were rectified by the adoption of amendments submitted by Mr. Latham, the Deputy Leader of the Opposition. These will be found in paragraphs 4 and 7 of the schedule. The effect of those amendments, stated broadly is to ensure that consent to authorize an enactment by the Parliament of the United Kingdom, means the consent, not merely of the Government, but of .the Parliament. Although the insertion of the amendments improved the resolution, I must confess that, even in its improved state, I cannot work up any enthusiasm for the motion, because I am not one of those who believe that the cause of Empire unity or co-operation can be forwarded by the adoption of legal definitions so much as by the evidence of goodwill between all the dominions and the Mother Country; by a desire to co-operate and work in harmony with each other, and by the creation of that mutual trust and respect for each other which is the fundamental basis upon which our Empire has risen to its present position of pre-eminence and has remained united during all the stormy years of its history.
– I move -
That the following words be added to clause 3:-
Provided that this section shall not prevent the Parliament of the United Kingdom from enacting, upon the request of the Parliament and of the Government of any of the States of the Commonwealth of Australia, an act to enable the separa- tion of any of the States from the Commonwealth of Australia, or the establishment of new States within the said Commonwealth.
The intention of my amendment is to preserve to the people of the differentStates their existing rights. I feel sure that it is not the wish of this Government or of the Imperial Government, that this amending legislation should take away from any of the States privileges which they at present enjoy, and yet a high legal authority in Western Australia has advised that the rights of the people of Western Australia, and, in fact, of every State, vill bc abrogated by the adoption of -this resolution.
– That opinion was given prior to the insertion of amendments at the instance of the Deputy Leader of the Opposition in another place.
– These amendments make the position worse. Since the Commonwealth Constitution is an act of the Imperial Parliament, the hand that gave can take away.
– Does the honorable senator think ‘it likely that the Imperial Parliament would do that?
– I do not; but it has the power to do so, and I wish to ensure that the power and the rights at present enjoyed by the Stales shall be retained.
– Does the honorable senator contend that the Imperial Parliament can, by legislation, alter the Commonwealth Constitution?
– Yes, because, as I have pointed out, the Constitution is an act of the Imperial Parliament, which, if it desired, could amend it.
– Without the consent of this Parliament?
– I admit that the British Parliament would not be likely to amend it without the consent of the Commonwealth Parliament, except under exceptional circumstances, but I wish to place it beyond all doubt that rights which have been enjoyed since the inauguration of federation shall be retained by the people of a State, or any portion of a State, that may desire to form a new State. The Imperial Conference of 1926 became historic because of the Balfour declaration that the
British dominions constituted autonomous and independent units, bound, together by no written ties, but by the crimson ties of kinship and friendship. The same principle should apply to the Commonwealth, at least to the extent that any rights which our people at present enjoy are not abrogated by any clauses in this resolution. The States should enjoy the same liberty of action within the Commonwealth that the dominions possess within the Empire. I do not believe in the federal bond being continued merely by compulsion. The principle applied by Great Britain to Ireland and South Africa might well he adopted by the Commonwealth in its relations with a State or portions of a State. Ireland and South Africa were both voluntarily relieved of legal ties and their present position in the British Commonwealth of Nations .’imply justifies the course approved by the Imperial Parliament. If the people of any State are not satisfied with their position under federation, they should have the power to retire from it on an equitable basis.
– Whatever that power may be, is it not preserved to them under the first part of clause 4?
– No. We were advised recently by a high legal authority in Western Australia that the insertion of this amendment is necessary to preserve to us our rights under the Constitution. The amendment does not seek in any way to interfere with restrictions that may be imposed under the existing powers of the Commonwealth Constitution. It is, I submit, reasonable to contend that each State, or part of a State, that may desire to form a new State, should not be precluded from taking the necessary action on the same basis as has existed for the last 30 years.
Senator Sir GEORGE PEARCE (Western. Australia) [4.18]. - In my opinion, the amendment is entirely unnecessary, because this resolution does not amend the Constitution or affect in any way the rights enjoyed by the people in any State or portion of a State. I would point out, also, that the legal opinion to which Senator Johnston has referred, was given prior to the insertion of amend ments suggested by Mr. Latham, the Deputy Leader of the Opposition in another place.
In its original form, clause 4 provided -
Nothing in this act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia, otherwise than iu accordance with the law existing before the commencement of this act.
That safeguards rights given, to the States under the Constitution -
Nothing in this act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia n’ot being’ a -matter within the authority of the Parliament or Government of the Commonwealth of Australia.
To that provision another place adopted an amendment by,Mr. Latham to add the following words : - or to authorize the Parliament or the Government of the Commonwealth without the concurrence of the Parliament and the Government of the States concerned, to request or consent to the enactment of any act by the Parliament of the United Kingdom on any matter which is within the authority of the States of Australia, not being a matter within the authority of the Parliament or the Government of the Commonwealth of Australia.
The addition of those words doubly safeguards the rights of any State under the Constitution, if it desires to withdraw from the federation. I, therefore, cannot support the amendment.
– The amendment is intended to preserve the authority of the Imperial Parliament to alter the Commonwealth Constitution if requested to do so. It is quite clear according to this document that no act in relation to any matter affecting the Commonwealth, can be passed by the Imperial Parliament without the consent and at the request of the Commonwealth Parliament, and that existing statutes cannot be amended unless the Commonwealth Parliament puts forward a request for the amendment or consents to an appeal made to the Imperial Parliament on the matter. If we pass this motion it will leave no discretion to the Imperial Parliament, whereas the purpose of Senator Johnston’s amendment is to leave it unfettered so that it will not be bound to get the consent or even act a* the request of the Commonwealth Parliament in any matter affecting the amendment of our Constitution.
What is it that is actuating Senator Johnston? The dissatisfaction in the western State is by no means a dream or a phantom. We cannot wave a wand, and say, “ Let it be gone “. Legal opinions have been very staunchly put forward in that State to the effect that the British Parliament can still undo what it has done ; but if to-day we commit ourselves, by this motion, to tieing the hands of the Imperial Parliament by requiring it to get. our consent before any amendment of our Constitution is made by it, we shall manifestly work an injustice to some parts of the federation. I should like to see Western Australia separated tc-morrow unless the federation behaves in a more just spirit towards it. I do not want Western Australia to be always the hewer of wood or tie beast of burden, so to speak’, for the rest of the Commonwealth.
– Western Australia has got away with about £1,000,000 of the Commonwealth’s money!
– Bo far as the fiscal relationship of the western State to the federation’ is concerned the boot is on the other foot; the balance of advantage, as the Treasury figures show, is entirely on the side of the federation. Honorable senators have been unsuccessful in appeal after appeal to this Parliament for something, like a reasonable adjustment of tariff rates so that the burden on Western Australia may be eased, and they now féi. that theirs is a voice in the wilderness and that there is no remedy for the Stale unless it gets back to the condition of freedom in fiscal matters it enjoyed before it entered the federation. The purpose of Senator Johnston’s amendment is to give the Imperial Parliament an. opportunity to Study the position on that point. Surely there is nothing wrong iti that. There is no justice, fair play, or erven poetry in having one State of the Commonwealth, which was once the moe loyal of all, and sent to the war more soldiers per head of population than any other State, in such a position that its people are in a continuous state of despair and smouldering discontent. If now the door of redress is to be shut completely against them, great injustice will be done to them.
It must be remembered that the federation of Australia was accomplished withOUt Western Australia. I realize what Senator Brennan meant by his reference to the double majority which is required for an amendment of the Constitution; but the honorable senator knows how impossible it is to secure that double majority. If Western Australia is to seek relief by that means alone, it will be in the position of the man who goes to law with the devil in the court of hell. It will get nothing. Its better course is to ask the British Parliament to hold fast to the power that it has acquired from time immemorial, to give the people of any of its dependencies a constitution and te amend that constitution. It gave to New South Wales, Victoria, and all the other colonies constitutions on co-equal terms, because it had the constitutional primordial right to do so. It is now proposed to take that right away; but Senator Johnston proposes to retain it, so that the people of Western Australia m,ay have a chance to live.
– The honorable senator would be on much safer lines if he opposed the motion.
– I do not know that I would. A commission of eastern men, which was appointed to inquire into the effect of federation upon Western Australia, gave the unequivocal verdict that the State had been badly treated and that in order to make good in some measure the injury wrought upon it, substantial damages should be paid by the Commonwealth. Those; damages have not yet been paid to the .extent of millions of pounds. To-day the people of Western Australia are spending £10,000,000 a year in purchasing goods from Eastern Australia, whereas if they were at liberty to go outside the Commonwealth to obtain those goods they would be in a much more prosperous condition than they are today.
I quite realize the potency of all the sentimental arguments about injuring the nation by separation - one flag, one destiny, and all that - but if the nacion “does not give a section of it, and a big section, too, ordinary fair play, then that section should be at liberty to refuse further to be the patient hewers of wood and drawers of water for the others. Western Australia would be capable of development on a vast and progressive scale if she had even an ordinary chance; but, because it is bound hand and foot to the Commonwealth and made to buy within the Common wealth goods which it could buy cheaper and to much greater advantage in the open markets of the world, it is hampered in its development to a hopeless degree. It could progress if the Commonwealth had a reasonable tariff, such as it had in 1907, when I first came into this Parliment, and if that were the case to-day I should never be in favour of taking the action proposed by Senator Johnston to-day. I came to this Parliament as a protectionist and I am still a protectionist. At that time the six representatives of New South Wales in this chamber were freetraders to a man, not only in words, but also in deeds and actions, and when they were asked to assent to extra duties, they declared that they would not have them. I was one of those who forced those extra duties on New South Wales. What has been the result? Today Senator Greene stands in the shoes of one of six who was an out-and-out freetrader, and he and his fellow representatives are staunch protectionists to their very eyelids, pledged to a rabid policy of protection which is drawing ruinous tribute from the whole of Australia to the two cities of Sydney and Melbourne.
– Is the honorable senator in order in discussing the tariff on this motion ?
– I am giving reasons why Senator Johnston’s amendment should be adopted.’ One is that the Western State is not at all satisfied with its position in the federation. A commission of impartial eastern men, as I have shown, said that it was justified in expressing its dissatisfaction because it is paying a burdensome tribute to Eastern Australia without any countervailing advantage. If we are to take away from the Imperial Parliament the right it exercised when it included Western Australia in the federation, we shall be doing a manifest injustice to that State..
That injustice will continue if the policy of the Commonwealth is to be on the lines of that of the last 30 years under which Sydney and Melbourne have gained eight seats in this Parliament at the expense of the countryside. Only another period of 30 years is required, and Sydney and Melbourne will be the political kings of Australia. Is that a healthy line of development? This amendment, which will enable the position to be reviewed by the Imperial Parliament, should appeal to Senator Ogden.
– I thought that we were discussing this motion.
– I am doing so, and very much to the point, too. I want to see fair play. I want to see the game played. I do not want to see one geographical area squeezed until the last drop of good blood is extracted from it. In Western Australia we have a progressive young people who are tied down and shackled by a tariff which is ruining their State. Burden after burden has been piled on them during the war period and since; embargo after embargo has injured them, and all to the advantage of certain areas in the Eastern States. I admit that there are parts of the Eastern States which are suffering a like disadvantage, but while those parts suffer other parts of these States prosper all the same, and for that reason I am in sympathy with the new State movement. I want to see the influence of Sydney and Melbourne and the other big cities prevented from retaining control of the Commonwealth. I support this well-timed and necessary amendment if only for the vital purpose of preserving to the States the rights which they now enjoy under the Constitution. The federal compact has functioned exceedingly well for some States; but to the absolute detriment of others of which Western Australia is one. We were told we were to get “ good “ government. Where is it? Honorable senators should seriously consider why so much discontent and dissatisfaction prevails in Western Australia; it has not come about merely by accident or wayward chance. It is due to the fact that Western Australia, which has always loyally supported a protectionist policy, and has helped to build up New South Wales under that system from a time at which it would not have protection at any cost until now, when like a tiger cub, having once tasted blood, it is thirsting for more, feels that most of this has to be provided at the expense of the western State itself.
– The amendment moved by Senator Johnston misses the entire point covered by paragraph 3 of the resolutions contained in the schedule. What we are now asked to do is not of a vital character, because, according to the Minister (Senator Barnes), the resolutions, having eventually been’ embodied in the Statute of Westminster, will come back to us in that form for ratification. Paragraph 3 of the schedule found its origin in the original report of the Conference on the Operation of Dominion Legislation, and is to cover instances such as those which Senator i Johnston has brought under the notice of the Senate. Paragraph 55 of the report of the Conference on the Operation of Dominion Legislation reads -
Practical considerations affecting both the drafting of bills and the interpretation of statutes make it desirable that this principle should also be expressed in the enacting part of the act, and we accordingly recommend that the proposed act should contain a declaration and enactment in the .following terms: -
Be it therefore declared and enacted that no act of parliament hereafter made shall extend or be deemed to extend to a dominion unless it is expressly declared therein that that dominion has requested and consented to the enactment thereof.
Clause 3 of these resolutions reads -
That clause is to give effect to paragraph 55 of the report of the Conference on the Operation of Dominion Legislation which I have just quoted. Sub-clause 2 of clause 3 of the resolutions in the schedule reads -
– That is what I object to.
– By the amendment the honorable senator is endeavouring, he says, to provide for the retention of a right which, as a matter of fact, has not been interfered with. Clause 4 of the schedule is based on paragraph 66 of the recommendations of the Conference on the Operation of Dominion Legislation, I do not think that the amendment moved by Senator Johnston provides any additional protection. If it be true, as Senator Johnston contends, that the Imperial Parliament has the right to amend the Commonwealth Constitution and to provide for the establishment of new States, which I very much doubt, the position is covered by clause 3 of the schedule which I have already quoted.
– Why pass these resolutions at all; why are they needed?
-rAt this juncture, I am permitted to discuss only the amendment moved by Senator Johnston and not the general question.
– I understand the practice in the Senate has been that an honorable senator who speaks to an amendment has not the right subsequently to speak on the main question. I have always permitted honorable senators to speak on both an amendment and the main question, provided that when speaking to an amendment they confine their remarks solely to the amendment.
– I have been endeavouring to confine myself to the amendment. If you, sir, rule that I may discuss the main question at this juncture I am prepared to do so; but I think it preferable to dispose of the amendment before debating the resolutions generally.
– The practice I have followed, I understand meets with the approval of honorable senators. I now rule that honorable senators who speak to the amendment must confine themselves to the amendment, but they may, if they so desire, subsequently speak to the main question. The honorable senator who moved the amendment has, however, not now the right to speak on the main question.
SenatorMcLACHLAN.- If Senator Johnston is of the opinion that the rights of individual States are likely to be interfered with under these resolutions, he should read the first paragraph ofclause 4 of the schedule.
– The rights of the States are not preserved under that provision.
– The honorable senator should realize that these resolutions can be dealt with only in a perfunctory manner owing to the late hour at which they have been presented to the Senate; but as stated previously, honorable senators will have a further opportunity to discuss them when they are embodied in an Imperial act, which must eventually come before this Parliament. As I think that the position is amply safeguarded, I cannot support the amendment.
.- I do not claim to possess any legal knowledge, but it occurs to me that the contention of Senator Johnston that the Imperial Parliament can amend the Commonwealth Constitution without reference to the people of Australia is ridiculous. The Imperial Parliament cannot amend the Commonwealth Constitution to meet the requirements of States wishing to secede without the consent of the people in such States as provided in the Constitution. The contention of Senator Johnston, who is chasing a shadow, is ridiculous.
– If the main resolutions are to be adopted by this Parliament, there is some merit in the amendment moved by Senator Johnston. Although it has been argued by some honorable senators that the amendment can have no effect, I can see that the main resolutions may hasten the day when the Australian States will cease to function as such, and we may then have a system of unification. I intend to support the amendment because, at the moment, there is no suggestion that the main resolutions will be negatived. When an opportunity is afforded later, I intend to vote against the whole of them. I should like to see the amendment adopted in order to safeguard the rights of the States, as I believe they exist to-day.
– Does not the honorable senator think that the rights of the States are safeguarded under clause 4?
– The position is not sufficiently clear.
– I have listened very attentively to the opinions expressed by honorable senators who have addressed themselves to the amendment moved by Senator Johnston. I was particularly impressed with the remarks of the Leader of the Opposition (Senator Pearce), who directed attention to clause 4 of the schedule, under which he said the rights of the States are properly safeguarded. I am not going to say that they are not ; but I should like to impress upon the Senate that in the past the Constitution has been interpreted by the High Court, which is our principal arbiter in constitutional matters. I admit that the position appears to be thoroughly safeguarded; but he would be a very bold man who would say that, like the laws of the Medes and Persians, it cannot be altered, except in accordance with our own interpretation of the Constitution. But even if it be as is suggested, I contend that the acceptance of the amendment would not alter the position one iota; this would merely.be an additional safeguard, and it would not detract from the safeguard that already exists. What objection could there bo to a double safeguard? I am a member of an organization in Western Australia, one of the fundamental political principles of which is the safeguarding of the sovereign rights of the States from further encroachment by the federal authorities. I worded that provision, and had it inserted in the constitution of the organization. Therefore, I should be recreant to the principles that have guided me in the past did I not take every step that is open to safeguard the existing position. Consequently, I shall support- the amendment.
– It appears to me that the purpose of this amendment is to enable Western Australia to secede from the federation.
– No, to safeguard the rights that she enjoys at present.
– I take it that the object is to permit Western Australia to secede from the federation if she does not receive -what she deems a fair deal. If I thought that the amendment would assist any State in that direction, I should not be opposed to it, because I believe in freedom of divorce in relation to the States. If they cannot get along’ well together, let them separate. I would not for a moment attempt to keep one State in subjection to the remainder, merely because the Constitution so provided. But I doubt whether the amendment could do any good in that direction. The Constitution provided that the several States named therein should unite in one indissoluble Federal Commonwealth under the Crown. Is it to be imagined that what is laid down as indissoluble may be altered by any imperial act that may be passed in the future? Can it be conceded that, because the Imperial Parliament passed this act, it had the right to deal with it subsequently as it would deal with any purely domestic legislation? That is unthinkable. We must bear in mind that it was not the Imperial Parliament that framed the Constitution ; but a conference of delegates elected by the Australian people. Assuredly the Imperial Parliament brought it into operation by means of an imperial act; but it is unthinkable that that Parliament should be able to alter, amend, or cancel it.
– We do not wish to be placed in a worse position than we now occupy, in regard to our right to approach the Imperial Legislature.
– If there is any possibility of State rights, as they are termed, enabling a State which is dissatisfied to remove itself from the federation, the provisions of clause 4 of the schedule protect that right, because they distinctly lay it down that a State shall not have its powers taken from it by reason of anything done under this resolution. So far as the Constitution is concerned, the position of both the Commonwealth Parliament and the State Parliaments will remain as it was prior to the passing of the proposed legislation.
– State powers will be limited enormously.
– I cannot see in what way the amendment will extend those powers. It appears to me that the measure of power which any particular State possesses is defined in the Federal Constitution, and that nothing that we can say or do in this matter can possibly have the effect of amending that Constitution so as to vest greater powers in any State. That is utterly impracticable. I gather from the remarks of honorable senators who come from Western Australia that the grievances from which that State is suffering require a prompt remedy. The idea that it would be possible to arouse public opinion sufficiently to influence the Imperial Parliament to pass legislation that would relieve Western Australia, seems to me fantastic. I give honorable senators from Western Australia the straight tip thai if the people of that State want secession, they should secede without further ado. The result could be-‘brought about much more expeditiously in that way. I would not raise a finger to prevent any State from seceding, if it considered that it could not get along amicably with its neighbours. If the grievances of Western Australia are well founded, a prompt remedy is needed ; but promptitude would not be possible under the amendment, which would take perhaps 100 years to become operative. If an agreement could be arrived at as to the liabilities that the State might fairly assume, the remainder of the federation I believe would consent to its cutting adrift.
– There would have to be a referendum of the people first.
– A referendum of the people of the State itself should be sufficient.
– Senator Rae appears to me to have laid his finger unerringly upon the weakness in the amendment. . Senator Johnston’s plea is, “Pass this amendment, so thai we may not be in a worse position under the law than we are in at present.” 1 confidently venture the opinion that Western Australia would not be in any worse position under the law if the resolution were passed. Senator Johnston appears to entertain the view that it is competent in some circumstances for the
Imperial Parliament to pass a law granting Western Australia its freedom. I tell him that, whatever may be the strict legal position, the idea that the Imperial Parliament should intervene in the affairs of the Commonwealth by passing an act granting Western Australia its freedom, is, as Senator Rae has put it, absolutely unthinkable.
– This would be a further barrier.
– I shall deal with that point in a moment. Such an act would be utterly alien to the whole spirit of British dominion government. The Imperial Parliament long ago learned that she must govern with a loose rein, if she was to govern at all. Of all the countries in the world, Great Britain is known as the greatest colonizer, by reason of the very genius in that direction which she possesses. Therefore, from the point of view of Western Australia, there is no practical importance in the strictly legal fact that Great Britain could pass an act, not only granting “Western Australia her freedom, but also repealing the whole of the Constitution of Australia. The Constitution is an act of the Imperial Parliament, and as a matter of strict law what a parliament has created it oau destroy; but as a matter of constitutional government that is of no practical importance. If Senator Johnston believes that his State, by retaining hat power, can obtain relief from the Imperial Parliament, he is relying on a very fragile reed.
– We do not want any existing door to be closed.
– I venture the opinion that the door will be closed by Senator Johnston’s amendment; because, although I do not think that it is within (he region of practical politics, still it might be said that if the Western Australian Government could induce the Commonwealth Government to requisition the Imperial Parliament to pass a law go-anting Western Australia its freedom, then, conceivably the Imperial Parliament might’ consent to do so. If Western Australia could get all the States of the Commonwealth to combine in asking the Imperial Parliament to pass such a law, it might possibly obtain the relief that it seeks. It is a very narrow door, but such as it is it would be closed by the amendment that Senator Johnston has proposed.
– The honorable gentleman is quite mistaken.
– Senator Johnston says that he does not believe that the States should be held together by compulsion. I remind him, as Senator Lynch has reminded us, that Western Australia came into the federation not hastily, but after the Constitution had been drawn up. Representatives of that State played a part in framing the Constitution, but in the form in which it was presented to the Imperial Parliament, the name of that State was not included. It came into the federation later, as one of the six States, “ humbly relying on the blessing of Almighty God,” and agreeing to “ unite in one indissoluble Federal Commonwealth.” We have heard a good deal lately about repudiation. The honorable senator would repudiate a contract entered into by Western Australia 31 years ago “humbly relying on the blessing of Almighty God “.
– Similar words are used in every marriage contract.
– The contract into which the States have entered is not unilateral, but multilateral; it cannot be broken merely at the will of one of the parties to it.
There is another reason why the Senate should not agree to the amendment. We, in this chamber, are representatives of the States as such. I hope that at least five of the States - and possibly all six of them - still believe in maintaining that federal union into which we entered. If the Senate agrees to the amendment, we shall. proclaim to the world that we are looking forward to the possibility of this indissoluble Federal Commonwealth being dissolved. I submit that we ought not to place on record any such resolution, and therefore we should reject the amendment.
– The Leader of the Opposition (Senator Pearce) and other speakers made it clear that there is no need -for the amendment. The position is met by section 4 of the Constitution. Moreover, if such a request were made to the
British Government, that Government would not entertain it for one moment. Australia has its own method of altering the Constitution; it can be altered by a decision of the electors. That should be sufficient for a people who value their right to do as they like with their own country. Australians would object to any outsider interfering in their domestic affairs. I submit that there is no need for the amendment.
Question - That the amendment (Senator Johnston’s) be agreed to - put. The Senate divided. (Pbesident - Senator the Hon. W. Kingsmill.)
Majority . . . . 17
Question so resolved in the negative.
.- It is difficult for me to show any enthusiasm for the motion before the Senate, seeing that Tasmania has suffered so materially from the operation of an act now on the statute-book. Without being parochial, I feel that I am justified in saying that the sufferings which that legislation has brought to Tasmania should make me anxious about a resolution which might mean that the possibility of relief which now exists would be taken from that State. Recently I received from the Hobart Chamber of Commerce a communication in which the views of an important section of the people are set forth. These people have interests which are bound up with the welfare and progress of their State and of Australia as a whole. When they heard that the Statute of Wesminster was to bo discussed in this Parliament, they got together and discussed it. Theoutcome of their deliberations was a deputation to the Premier of Tasmania a short time ago. As I feel that the correspond ence which I have received from the Hobart Chamber of Commerce, and an extract which accompanied it, should beplaced before the Senate, I propose to read them. The letter states -
I am directed by my president and council to draw your attention to the fact that, following upon the recent Imperial Conference, it is proposed, through an act, to he known as the Statute of Westminster, to render inapplicable to the dominions British legislation that makes dominion laws invalid because of their being repugnant to the laws of England.
If this legislation is sanctioned it means that it will make it very doubtful whether the Navigation Act could be successfully tested. To save going over all the ground in detail, I enclose you herewith extract from the Mercury of Saturday, the 20th instant, wherein the case put forward by the Chamber of Commerce to the Premier the preceding day is reported.
The newspaper extract referred to is as follows : -
Government Help Sought
The danger of possibility of securing relief from the Navigation Act should legislation contemplated pass the British Parliament, was outlined to the Premier (Hon.J.C. McPhee) yesterday by a deputation which waited on him from the Hobart Chamber of Commerce. The acting president (Mr. T. Ellison) introduced the deputation, which included Messrs. E. H. Thompson, C. B. Black, and the secretary (Mr. F.R. Davidson).
Mr. Black said that the facts,briefly, were that under section 51 of the Constitution of the Commonwealth Parliament was given power to make laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries and among the States. It was proposed to omit the words “ with other countries and among the States” in order to give the Parliament unlimited power, but the fact that they were not omitted showed that the intention was to limit such powers. Section 08 provides that the power of Parliament to make laws with respect to trade and commerce extended to navigation and shipping. There was nothing there to give the Parliament power to restrict or lessen the facilities for trade and commerce, and intercourse among the States, nor to give the Commonwealth the right to introduce a permit system as it had done, with the right of ministerial veto, for the carrying on of trade, commerce, and intercourse among the States.
The Coastal Trade
The Commonwealth then had to fall back on the Merchant Shipping Act for its powers to regulate, not prohibit, the coastal trade. Section 730, for example, provided : “ The legislature of a British possession may by any apt or ordinance regulate the coasting trade of that British possession, subject in every case to the following conditions: The act or ordinance shall not come into operation until Her Majesty’s pleasure thereon has been publicly signified:the act or ordinance shall treat all British ships, including the ships of any other British possession, in exactly the same manner as the ships of the British possession in which it is made”.
Misuse of Powers
That, said Mr. Black, made it clear beyond all ambiguity that the intention was not to restrict or lessen facilities for trade or travel, or to deprive the opportunity of any British ship for trade. The Commonwealth had misused those powers not only to make the Navigation Act an instrument of protection, but of absolute prohibition. The other act concerned was the Colonial Laws Validity Act, which, in certain circumstances, rendered invalid colonial legislation which was repugnant to British legislation. When correspondence was taking place between the Commonwealth and British Governments onthe subject of proposed Australian legislation, the British Government advised that the Constitution did not in any way extend the powers of the Commonwealth beyond those previously possessed by the States.
The gravamen of the complaint, said Mr. Black, was that the Commonwealth was a party to the movement to induce the British Government to pass legislation declaring that the Merchant Shipping Act and tho Colonial Laws Validity Act should not apply to the dominions. The Navigation Act, if repugnant to the Merchant Shipping Act, could not then be upset on those grounds. When. Tasmania entered federation there were certain safeguards limiting the powers of the Commonwealth in a most important and vital particular, and such safeguards were now to be removed without the States being consulted, and the Commonwealth would be clothed with powers not given to it by the Constitution, and without taking a referendum on the question in the manner provided.
Imperial Conference Move
As the result of Imperial Conference decisions a draft agreement was prepared under the terms of which it was proposed that each part of the British Commonwealth might regulate its own coasting trade, and provision was made that any laws or regulations should treat all British ships in exactly the same manner as ships registered in the British Commonwealth. It has always been claimed by the Commonwealth and by the Commonwealth Steamship Owners Federation that the Navigation Act did provide equality of treatment, but it was economically impossible for British ships to comply with the standards fixed. If it were not, there would be no necessity for the coastal clauses and the regulations made thereunder.
According to the summary of the proceedings of the Imperial Conference, it was proposed that the British Government should pass legislation to be known ‘as the Statute of Westminster, that the 1st December should bc the date from which it should become operative, and that, with a view to the realization of that arrangement, resolutions passed by both Houses of the Dominion Parliaments should be forwarded, if possible, by the 1st July, and not later than the 1st August. They were aware that the Attorney-General had moved in the matter, regarding other aspects of the position, but the Chamber of Commerce was not aware that any steps had been taken in regard to the very important phase of the conference proceedings to which the deputation drew the notice of the Government.
They had not overlooked the provision in the Constitution Act that the powers of the Commonwealth should be in force on all British ships whose first port of clearance and whose port of destination were in the Commonwealth, but they were governed by the powers mentioned. The British Crown Law Office had advised that the Commonwealth had no greater powers than those previously possessed by the States, and every important case dealing with the Navigation Act defended by the Commonwealth had been lost by it. In one case the only defence entered was that a certain provision was within section 51 for the peace, order and good government of the Commonwealth, and the point was ruled against the Commonwealth. Its anxiety for fuller powers was, therefore, understandable, but the Chamber of Commerce was deeply concerned for the welfare of the State, and as the position might compel them to take advantage of British legislation to keep the Commonwealth within the four corners of the Constitution, tbey appealed to the Government to keep a watchful eye on a very subtle move, there being no obligation on the Commonwealth to modify in any way the provisions of the Navigation Act, which were so irksome to travellers and so detrimental to Tasmania.
Tho Premier expressed his appreciation of the action of the deputation in bringing the matter before him. He said that if the legislation was passed a very serious position would aviso. The Government would certainly make the strongest representations that the rights of the State should be protected. They would communicate with the Governments of the other States and put the position before them, seeking their co-operation in a protest against the proposed legislation.
I offer no apology for having read that long report, because it is just as well that the feeling of the people of Tasmania with regard to this matter be placed on record. I also have another lengthy document relating to the issue a few months ago of a permit to a British ship to carry passengers from the mainland to Tasmania. This shows that after the permit had been issued by the Government official controlling the department, and arrangements made for passengers to travel by the vessel in question, the permit was peremptorily withdrawn at the instigation, I understand, of an industrial organization in Melbourne. Subsequently, as the result of protests, the permit was again given. Naturally, the people of Tasmania, having had so many experiences of this nature, wish to make quite sure that their position will not be prejudiced as the result of the adoption of this motion. Tasmania is in an entirely different position from that of any other State. It has not the advantage of easy and regular railway communication with other States, and suffers so many other disabilities under federation, that it is quite understandable that the people there should make urgent appeals to their representatives in this Parliament to watch the interests of the State in any legislation which is being enacted. They are especially anxious that any rights which may, by the Constitution Act, be preserved them under the British Merchant Shipping Act, shall not be abrogated. For this reason I intend to oppose the motion. If I acted otherwise I should nol be true to the trust reposed in me by the people of Tasmania.
.- I should like some information from the Leader of the Senate (Senator Barnes) with regard to the provisions in clause 1 dealing with the power of the parliament of a dominion to make laws having extra-territorial operation. Does this mean that dominion governments may take authority to inflict punishment for crimes committed against Australia by citizens in other countries? I should also like to be informed of the position that would arise following the acquisition pf new territory by a dominion government. Prior to federation, Sir Thomas Mcllwraith, who was then Premier of Queensland, actually annexed for the British Crown the whole of the territory now known as New Guinea; but the annexation was not recognized by the
British Government. Consequently, only portion of that island became British territory, and during the war we were obliged to send an expeditionary force to take over what was then known as German New Guinea, which is now being administered by the Commonwealth under a mandate from the League of Nations. I recognize, of course, that if dominion governments were authorized to annex foreign territory, the British Empire might one day be involved in war through the action of one of the dominions. I should also like to know whether, under this proposed amendment of the Colonial Laws Validity Act, a dominion government will have enlarged powers to make treaties, other than customs treaties, with foreign governments; whether, for instance, it will be competent for a dominion government without reference to the Imperial Parliament, to make a treaty with the government of another country for the purpose of mutual defence.
.- 1 differ, on this question from some of my colleagues from Tasmania, and also some well-meaning people who have made representations to us upon this subject. Stripped of all its legal technicalities and difficulties, the question before us seems to be a very simple one, namely, whether the people of Australia, through their Parliament, shall have full and complete powers of legislation, freed from all interference by the Imperial Parliament. On this subject the report of the conference states -
From an early stage in the history of colonial development the theory has been held that there was a common law rule that legislation by a colonial legislature waa void if repugnant to the law of England. This rule was apparently based on the assumption thai there were certain fundamental principle? of English law which no colonial law could violate, but the scope of these principles was by no means clearly defined.
A series of decisions, however, given by the Supreme Court of South Australia in the middle of the nineteenth century applied the rule so as to invalidate several of the acts of the legislature of that colony……
After that happened, the British Parliament, in 1865, passed what is known as the Colonial Laws Validity Act, section 2 of which reads - ‘
Any colonial law which is or shall be in any respect repugnant to the provisions of any aci of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation*5 made under authority of such act of Parliament, or having in the colony the force and effect of such act, shall bc read subject to such act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
That is the provision which this resolution proposes to alter by giving to the Com in on wealth Parliament plenary powers with regard to its own legislation. It is true that the Imperial Parliament has never taken advantage of that provision in the Colonial Laws’ Validity Act, nor is it likely to interfere in any way with the free governing rights of any dominion ; but constitutional authorities agree that it would be just as well to remove all ambiguity, and to put the position beyond any doubt. Senator Payne, and a number of well-meaning people in Tasmania assume that we may get some relief under the British Merchant Shipping Act from the coastal provisions of our Navigation Act. Section 736 of the Merchant Shipping Act reads -
The legislature of a British possession may by any act or ordinance, regulate the coasting trade of that British possession, subject in every case to the following conditions: (a) The act or ordinance shall contain a suspending clause providing that the act or ordinance shall not come into operation until. Her Majesty’s pleasure has been publicly signified in the British possession in which it has been passed; (b) the act or ordinance shall treat all British ships (including the ships of any other British possession) in exactly the same manner as ships of the British possession in which it is made.
That is the section under which opponents of our navigation law hope to obtain relief. I am not attempting to debate the legal aspect of the matter, but if the matter were tested in court, I think it is questionable whether it would be held that our navigation laws discriminate against vessels on the British registrar.
– They do.
– No. The law says that those vessels are quite free to engage in the coastal trade of Australia so long as they comply with the conditions with which Australian vessels have to comply. The fact remains that the point has never been tested before the High Court, and it is never likely to be. ‘ The overseas and Australian vessels being in one combine are not likely to take a test case to the High Court, nor could the Commonwealth Government be expected to take steps to test its own legislation. It, therefore, remains for the various States to test’ the matter if they feel that they are in need of redress. The section of the Merchant Shipping Act which I have read was embodied in the law of Great Britain in 1854, and was re-enacted in 1S65, and again in 1894. The conditions under which the colonies were governed at that time were entirely different from what they are to-day.
– Was that the case in 1894, when the section was re-enacted?
– Thirty-seven years is quite a long time to look back.
We are all loyal to the throne and to the Commonwealth of Nations, but this is not a .matter to be decided on sentimental lines alone. The Commonwealth should have full rights of selfgovernment, and those who seek relief from our navigation laws should look to this Parliament for that relief, and not depend on an antiquated British law, even if it could possibly aid them. No one denies the disadvantages that Tasmania has suffered under the operation of the Commonwealth Navigation Act, but so far the State has not taken steps to submit a test case to the High Court.
– The position may become so irksome that the State will have to do something in that direction.
– Apart from seeking to prevent the possibility of restrictive legislation being passed by the Imperial’ Parliament, I think that we should carry this motion and give the Commonwealth full self -govern ing rights. It is all very well to say that everything has gone well in the past, and that there has been no interference with our autonomous powers - possibly there may be no such interference in the future - but what harm is there in our enacting something which we believe to be right ? The report of the conference held in London ought to be studied by every honorable senator. There were in attendance representatives of the United Kingdom, Canada, Australia, New Zealand, South Africa, the Irish Free State, and India. Australia was represented by Sir Harrison Moore and Major Casey. The resolutions were unanimously adopted ; there was no hole and corner business about the matter; full agreement was reached under the most suitable conditions with thorough representation of all the dominion parliaments. Parochialism _ should not be introduced into such a question as this. It should be considered on broader grounds than the effect of the coastal provisions of our Navigation Act. If there should be any fault in our own legislation, let us seek redress from ourselves, and not from others.
– In coming to a decision as to what my attitude should be in regard to the motion now being debated I have asked myself first of all what advantage is likely to accrue to the Commonwealth as a result of its adoption, and, secondly, in what way the development of the Commonwealth has been hampered or restricted, or its constitutional power affected, because of its lack of additional powers. I do not think that any honorable senator can say that the development of this part of the Empire has been restricted or hampered as the result of any legislative action taken by the Imperial Parliament. The British Parliament, by its legislation, has done nothing to the detriment of the Commonwealth. I ask further if there has been any request from this Parliament, or from any government of the Commonwealth, or if representations have been made to any of the other dominions, for the British Parliament to be collectively approached and invited to restrict its power to govern the dominions, or to limit its legislative control over them. There is no evidence of it. Is this the time to convey to the Imperial Parliament the impression that we wish to cut ourselves further adrift from it? In this motion we declare that our development has been hampered and retricted because of our lack of additional powers. Has there been any conflict between the Commonwealth law and British law? On the contrary, the greatest harmony has existed between the British Parliament and the Commonwealth Parliament. Who is to speak for the Empire? There must be some authority who, in the final analysis, speaks for the Empire. Have we reached that position in which we can say that we need no one to speak for us, because we are an individual nation outside the Empire?
– Are we prepared to strike out absolutely on our own ?
– It is not suggested.
– If words have not ceased to have their meaning, it was implied in the statement of the Leader of the Government in the Senate (Senator Barnes) that this motion seeks the additional freedom that Australia requires, and that Australia should have further legislative powers than those it already enjoys. No matter how I face the position, I realize that there is nothing whatever to justify the passing of this motion. I do not know what the position of the other selfgoverning dominions is in this regard; but let them put their case in their own way. My summing up of the position is that this motion is quite uncalled for; that the additional powers to which it refei-3 have never been sought; and that no complications have been brought about because of our lack of those powers. I shall, therefore, vote against the motion.
I have no desire to go over the ground already covered by Senator Payne. Many Tasmanians believe that they have suffered as a result of the navigation laws of Australia, and that the Merchant Shipping Act overrides those laws. Whether they are right or wrong, I am not in a position to say ; but the passing of this motion will certainly close the door against any attempt that may be made to test the validity of the Commonwealth legislation.
– The door of thi* legislature will always be open.
– The honorable senator knows quite well that the strongest representations we have made to this Parliament for relief have been unsuccessful. Whether relief can be got along the lines suggested by those who have made the representations referred to by Senator Payne, I am not in a position to say; but I do know that the passing of this motion will close the door against us. It seems to me that in these resolutions there is evidence of a desire on the part of some to encourage a peaceful but certain penetration of the rights of the States, which may ultimately lead to unification. Those whose duty it is to deal with national issues, particularly in Australia, appear to be unmindful of the rights of the States or of small communities generally. Important as are the functions of this Parliament, those of the States are in their own way equally important. I do not intend to assist in passing this motion which, in my opinion, is not supported by any evidence of its necessity. I cannot see that the Commonwealth has suffered to any extent under thepresent system, and possibly an alteration may lead to complications and complexities which should be avoided. Another important aspect of this proposal is that the economic and financial position of the Commonwealth and other selfgoverning dominions is at present unsettled, and any effort to alter the present system should be postponed until normal conditionsprevail.
– It is with a great deal of diffidence that I address myself to this motion. I have given a lot of thought to the resolutions, and have read the report of the conference on the operation of dominion legislation, and merchant shipping legislation, and also that of Sir William Harrison Moore, who represented the Commonwealth at that conference; but I must confess that on quite a number of points which are really matters for jurists or those with trained legal minds, I am somewhat in a fog. My main object in speaking to this motion is to refer to merchant shipping legislation. The toad under the harrow knows where the points of the harrow press. Upon my return from the Great War, I was the toad under the harrow - the harrow to which I refer is the Navigation Act. At that time I was conducting a saw-milling business on the north-west coast of Tasmania, and the bulk of my output was exported to the mainland States. In 1920-21, thanks to the kindly offices of the Navigation Act - which one of my colleagues said does not affect us a great deal, but on that point I differ from him - it cost me6s. 6d. per 100 feet super, in freight to land sawn timber on the Melbourne wharfs, while at that time the freight on timber from Sweden to Melbourne was 3s. 6d. a hundred feet super. To land such timber at Port Adelaide, where I did most of my business, it cost me 9s.10d. a hundred feet super. The freight on timber from the United States of America or Canada was then from 3s, to 5s. per 100 feet super. Since the Tariff Board reported on the operations of the Navigation Act in 1928 the position has become aggravated, because in referring to freights the board reported that the rate from Sweden to Australia was 5s. 6d. per 100 feet super.; whereas that on sawn timber from the north-west coast of Tasmania to Port Adelaide was11s. per 100 feet super. Because of the Navigation Act it was impossible for me on many occasions to do business with Western Australia, although business was offering. I could have done well by shipping direct from Tasmania to Western Australia by overseas vessels, but the law would not permit me to do so. The only way of sending timber to the Western State, was by shipping it to Melbourne, where it would have to be transshipped, thus incurring additional handling and transport charges. The toad under the harrow probably feels more than the other fellow. In any case, he certainly feels it. I propose to vote against this motion.
A good deal has been said about closing doors. This door may be open ; but 1 think it is only ajar. I quote the following from page 33 of Sir Harrison Moore’s report : -
In paragraph 20 Sir Harrison Moore touches on the subject in this “way -
In paragraph 21, referring to international conventions, he states -
That is very interesting, but paragraph 22, which, I think, is the real gem, reads -
Another object is to diminish the hindrance to trade and commerce which may come from the application to the same ship and the same adventure of divergent and perhaps conflicting laws.
Although Senator Ogden says that the whole question is simplicity itself, I cannot view it in that light. To me, it is complex. I may be asked why some State government has not tested the validity of this precious and sacred Navigation Act of ours. I do not know the reason, but I do know that about six years ago a movement known as the Tasmanian Eights League, was active throughout Tasmania. That league embraced persons in every walk of life in all parts of the State who subscribed large sums of money with the object of taking such action as would impress upon the Commonwealth Parliament the ham.pering, hindering, and harrassing effects of some of its legislation and particularly the coastal provisions of the Navigation Act. I can speak with certain knowledge of its effect. Most persons do not squeal or take any notice until their pockets arc affected by it, and I can assure honorable senators that when I was saw-milling on the north-west coast of Tasmania some years ago, I was severely and adversely, affected by its operation, as was the whole State. Although the door may not be in existence, or, if it is, it is only slightly ajar, I should be sorry to see it closed. Tor that reason I propose to oppose the motion.
.- I agree with the remarks that fell from the lips of the Leader of the Opposition (Senator Pearce), and, like him, will vote for the motion, although with no groat ardour. The want of necessity for it must, I think, appeal to every one who has had any experience of our laws. It is very hard to see what call there has been for this resolution which apparently had its genesis in the Imperial Conference of 1926. I am somewhat afraid that our representatives at that conference must take a little of the blame. They allowed themselves, as I venture to say with due respect to them, to be attached to the chariot wheels of dominions which were not tied to the Mother Country by the same bonds as we in Australia are.
– The honorable senator has put the matter very mildly.
– I desire to put it mildly. But when one considers the position of Ireland, South Africa and, possibly in a less degree, parts of Canada, one must realize that, while not for a moment criticizing those sister dominions, their relations with the Mother Country - on the sentimental side at all events - are different from those of Australia.
– If we do not pass this, would the application of the Imperial law to them be affected?
– Oh, no.
– Then why should we pass it?
– I presume that the idea is that it shall be given legislative sanction by the Parliament of Great Britain when the principal dominions have acquiesced in it; but, according to the latest additions, it does not apply to Australia, except insofar as Australia applies it to herself. The Leader of the Government. (Senator Barnes) has admitted that the Imperial Parliament does not pass laws extending to a dominion without the concurrence of that dominion. That brings us back to the position that I took up when I spoke earlier - that the genius of Great Britain for colonization is too great to permit her to pass laws that are likely to cause irritation to the dominions. The best proof that the existing relations - which are relations of sentimentality rather than legal bonds - have worked thoroughly satisfactorily, is the fact that, when the Attorney-General sought an illustration to support what the Leader of the Government has described as a radical alteration in our relations, in the 30 years of our existence as a Commonwealth, and even further back in the history of the States as separate entities, the only case that could be found in which it could bc said that the Colonial Laws Validity Act had interfered in any way with an act of the Australian Parliament was the very trumpery Union Company case. That case raised the issue whether 250 seamen who were due for discharge in Australia should be discharged under the Imperial law which governed their engagement, or under the Australian law, within the jurisdiction of which, territorially at any rate, they came at that time; in’ other words, whether the extra 2s. a head provided for by the Navigation Act should be paid. Apparently, that is the only illustration that can be given of a conflict between the laws of the Imperial Parliament and those of Australia. I agree with the right honorable the Leader of the Opposition (Senator Pearce) that if you seek to establish by legal relations what previously was established by tact, confidence, ability and a desire on either side to work amicably, you are likely to bring about litigation, and in some sense, to cause friction. Therefore, we should consider this matter on what Senator Ogden has described as a broad base, and apart from the local grievances of, say, Tasmania . and Western Australia. When I say that, it must not be understood that I am unmindful of or unsympathetic towards the grievances of either of those two States. I recognize those grievances to the full. But it does seem to me that the way in which those grievances will have to be rectified is by an appeal to the general sense of fairness of the people of Australia, not by any recasting or re-arrangement of the relations between the Commonwealth of Australia and the Imperial Government.
There is nothing, I venture to say, in the view expressed by Senator Herbert Hays, that the passage of these resolutions would be a suggestion to Great Britain that we were in Borne way weakening our ties with hor. That can hardly be; because it must be remembered that these resolutions were drawn up by the representatives at the Imperial Conference, which was presided over by the late Earl of Balfour. The view of Senator Herbert Hays, that this is a further step in the direction of unification, is met by the amendments that have been incorporated by the other House. Those additions make a strong appeal to me. ‘I did not desire that anything should be done to minimize the position of the States. Tho additions to clause 4 of the schedule meet that difficulty entirely. I regret that these resolutions have been considered necessary by any authority. I do not think that they ever were necessary. But having been brought forward in this Parliament, and in the other dominion parliaments, it is our duty to accept them. I do not think that they are likely to lead to any harm being done, and I shall vote for them.
– It is unfortunate that we should be asked to deal with a subject of such’ far-reaching importance at so late a date. This matter affects, to a very marked degree, the relationship that exists between the Motherland and the sister dominions. There are sentimental ties, commercial ties, and all sorts of other ties that one may discuss from different angles; yet, according to the Leader of the Government, it is imperative that the cable announcing our acceptance shall be despatched before the end of this month, which is only a couple of days off. That is not treating this chamber fairly. After all, we are better fitted than is another place to give calm and dispassionate consideration to such momentous questions.
We have had before us the resolutions of the conferences that have been held since 1926, and also have had an opportunity of considering the report of the conference on dominion legislation which was attended by those distinguished jurists to which Senator Ogden has referred, that body being the outcome of resolutions that were passed at the Imperial Conference of 1926.
Senator Herbert Hays considers that this legislation is uncalled for. I direct his attention to the exordium in paragraph 6 of the dominion legislation conference, which points out clearly the purpose of the conference and the reason for its being held.
Sitting suspended from6.15 to 8 p.m.
– Before the dinner adjournment, I was referring to paragraph 6 of the report of the conference on the operation of dominion legislation and merchant shipping legislation 1929. That paragraph reads -
The present conference owes its origin to a recommendation contained in the report of the Imperial Conference of 1920. The interImperial relations committee of that conference made a recommendation which was approved by the full conference that a committee should bo set up to examine and report upon certain questions connected with the operation of dominion legislation, and that a sub-conference should be set up simultaneously to deal with merchant shipping legislation. This recommendation was approved by the Governments concerned, and the present conference was established to carry out those tasks.
It cannot be said that this thing has been sprung upon us, because the Imperial Conference passed the resolutions to which reference has been made, and a body of experts examined the whole position. Our own representatives, Sir Harrison Moore and Major Casey, supplemented the report by a separate report under the name of Sir Harrison Moore, in which they dealt with the recommendations which had then been made. Since then the Imperial Conference of 1930 has given attention to the matter. In the report of the Prime Minister to Parliament, the right honorable gentleman made more than passing reference to what was proposed. He said -
In giving legal effect to the equal and autonomous status of the dominions, the greatest care had to be exercised not to impair or destroy the unity of the British Commonwealth - a until which, based on kinship, mutual interest and goodwill, contributes greatly to national safety, and at the same time affords important guarantees of world peace. Although Great Britain and the dominions have international relations with one another, they are not foreign to one another. For many purposes, and in many aspects, the British group of nations has a very real unity in relation to the other nations of the world. The clothing of the new constitutional principles with legal form has been accomplished in a spirit of friendship and co-operation. The increased self-government now enjoyed by the dominions will not weaken, but will, I believe, strengthen the unity of the British family of nations.
The only statement there to which I take exception is that which says that we are enunciating some new constitutional principle. We are only recording in more rigid form the relationship that at present exists between the Imperial Parliament and the Parliaments of the dominions. Those who have made a study of this subject know that there are’ two conflicting schools of thought which look at this matter from two different standpoints. The first school expresses the view put forward by the specialists, that we need something rigid, something legal, something that will clarify the position. The second school holds the view of the “ big Briton “ who asks for nothing better than we already have, and claims that there has been no attempt on the part of the Imperial Parliament to control the dominions. It must be said that the existing conditions give a freedom of action and an” elasticity which may be lessened by the adoption of a rigid rule, such as that proposed in the suggestions now before us. While from a constitutional point of view it is interesting to consider what might bc attained by adopting this resolution, I submit that, with the exception of merchant shipping, no new constitutional principle emerges at all. The position is somewhat obscure in regard to our extraterritorial jurisdiction. This Statute of Westminster may be acceptable to the present Imperial Parliament; but a subsequent Imperial Parliament might repeal it. Would that be likely to lead to harmony between the dominion Parliaments and the Mother of Parliaments? Would it not be more likely to lead to friction?
– Does the honorable senator think that the Imperial Parliament would break; an agreement entered into with the dominions?
– It might be to our advantage that they should be broken. If I may so express it, that looser tie which existed previously allowed an elasticity which made it preferable to the rigid conditions now proposed. We should be careful not to do anything which might commit Parliament to the acceptance of this measure when it is passed by the Mother of Parliaments, and by the Parliaments of the dominions concerned. The amendment of New Zealand, if applied to Australia would mean that the Parliament of the Commonwealth might at any time revoke the adop-tion of any section of this act. While I feel that we ought not to be out of step with the other dominions, there is something to be said for the point of view expressed in another place, that it would bo better to leave tho tie as it is rather than interfere with it. A distinguished friend of mine who has recently returned from India, where he had been in touch with people who were very keen on the British Empire ideal, spent most of his time in combating the suggestion that there was a desire on the part of Australia to “cut the painter”. If I thought that that object underlay these resolutions, I would do my best to throw them out neck and crop. But I do not think that spirit prevails. .
– I do not think it could be said the Mother Country would agree to these resolutions with any such desire.
– These resolutions are not intended to pave the way for “ cutting the painter “. On the contrary, they have been put forward iu the belief that it is better to have a well defined arrangement existing between the dominions and the Mother Country, than the loose arrangement which now exists. There is also a very strongly held opinion to the opposite effect. From time to time it has been suggested in this Parliament, that some such arrangement should be arrived at. For good or evil, the 1926 conference proceeded in that direction. A committee of experts explored the ground and made recommendations, to which Sir Harrison Moore, on behalf of the Commonwealth of Australia, gave his approval, and reported accordingly. The extraterritorial provisions do not appear to have been regarded as very important, but they meet the difficulty that arose -in certain cases. The Colonial Laws Validity Act merely states something which is generally recognized to-day. Australia may say that the laws of Britain shall not apply here, that we shall pass our own legislation to meet local conditions. But there is one great factor which must not be overlooked. The common law of England cannot be got rid of in any British community. It is something which every part of the Empire inherits. The common law of England is the common law of the colonies, or dominions. The great bulk of our statute law to-day is based on it. Common law plays no unimportant part in the interpretation of statute law. The points which emerge from paragraphs 3 and 4 have already been sufficiently dealt with. Paragraph 5 merely alters the word “ colony “.
There is a difficulty with respect to that part of the resolution which deals with the Merchant Shipping Act. The point raised by Senator Sampson presents a difficulty which is abstract rather than concrete. As I understand the views expressed by Tasmanian and Western Australian senators, they are that there is a danger that we may deprive ourselves of the right to challenge certain provisions of the Navigation Act, which it is claimed are invalid in that they transgress the provisions of the British Merchant Shipping Act. That raises a big question. It is true that those States which now complain about this matter have for about nineteen years, worked under the provisions of that act. It is doubtful whether that act, does in fact, violate any of the provisions of the British Merchant Shipping Act.
If we accept these resolutions, and they are given statutory effect, it is possible that those States will be deprived of any opportunity to challenge their invalidity on that ground. But does that point arise now ? Is it not more likely to arise when we adopt the substantive legislation covered by this motion? . This discussion, I take it, is a preliminary step, and I am not enthusiastic. I lean rather to the other school of thought, and believe that the Mother Country has treated her kinsfolk overseas as she would expect to be treated herself. She might have taken action, through the Privy Council, which is, after all, the King’s Council, to enlarge the scope of that tribunal by providing dominion panels, and in this way might have tied the strings much more closely than they are likely to be tied by the adoption of these proposals. But she refrained, not because she did not desire the closest relationships with the various dominions, but because she feared that such a gesture might be misinterpreted. However I now offer the suggestion as one well worth consideration by the Government. For my part I do not view these proposals with enthusiasm having regard to what has been done, but if the Minister can satisfy me that nothing contained in these proposals will prejudice the interests of any State, as, for example in connexion with the coastal provisions of the Navigation Act, I shall be prepared to vote for their acceptance. Reference has been made to the various amendments suggested by New Zealand on the one hand, and South Africa on the other. The fact that those dominions have accepted the recommendations of the conference should not prejudice the position of any other State.. The Minister, when replying, will have an opportunity to deal with the various points that have been raised, and I may add that his reply will . largely determine the way in which I shall vote.
– If the passage of this motion would finally commit this Parliament to all the provisions contained in the various resolutions I should vote against it, because I regard all these attempts by statutory provisions to define the relationships between Great Britain and the Commonwealth as mischievous ; moreover I regard the genesis of this motion as suspicious. I invite attention to clause 7 of the schedule. It reads -
None of the following sections of this act, namely (clauses 1, 2, 3 and 6 above)-
Those relate to all the powers granted under the act - shall extend to the Commonwealth of Australia as part of the law thereof unless that section is adopted by the Parliament of the Commonwealth and any act of that Parliament adopting any section of this act may provide that the adoption shall have effect either from the commencement of this act or from such later date as is specified in the adopting act.
That means that we must adopt the act section by section, and finally it says -
The Parliament of the Commonwealth of Australia may at any time revoke the adoption of any section of this act.
– That should be an assurance that there is no reason for fear.
– I was about to point out that if . clause 7 had not been included I should have voted against the motion. Our Tasmanian friends have had much to say about the effect on Tasmania of the coastal provisions of the Navigation Act. If clause 6 were not adopted by this Parliament subsequent to the passage of the Statute of Westminster the position as it exists to-day would be unaltered by the adoption of this motion, and even if this Parliament adopted section 6 of the bill, as passed by the” Imperial Parliament, there is power for this Parliament to retrace its steps. This Parliament” can, of course, repeal the ‘ Navigation Act itself. Whether we should have courage to do so is another matter. As the Minister who was responsible for the passage of the Navigation Bill in its final form in another place, I have often wished that I had not been associated with it.
– I understood that the honorable senator opposed the original Navigation Bill.
SenatorGREENE. - At one period yes, but circumstances changed, and I as a Minister was responsible for its first proclamation, in part at all events. Personally I have no enthusiasm for the motion, and I should have been better pleased if it had not been presented, but as I have said, although we may adopt the motion and although the Imperial Parliament may pass the Statute of Westminster, it will still be open to this Parliament to accept so much of the statute as it approves and reject those portions of it which it disapproves. And finally, it is open to this Parliament at any time to revoke its acceptance of any part of the act, and reestablish the status quo.
– In what form will it come back to this Parliament ?
– I assume it will be in the form of an act of the British Parliament, which we shall be required to adopt or reject, section by section, by a bill submitted to this Parliament. In the circumstances which I have related I very reluctantly intend to vote for the motion.
.- I am surprised that this motion has occupied so much of the time of the Senate to-day, because I was under the impression that it would be supported enthusiastically, and disposed of very quickly to enable us to give our attention to other important legislation before honorable senators return to their homes for the projected adjournment. As I understand the situation, there need be no fear that the Commonwealth will lose any of its self-governing privileges by the adoption of the motion. Before dealing with” specific questions raised during the debate, I desire to mention that Canada has passed a resolution similar in terms to the motion now before the Senate, and containing clauses specifically applicable to Canada. The text of the Canadian clauses was only received to-day. They are in the following terms: -
That appears to indicate that the same uneasiness was felt in Canada with regard to the rights of the dominion or provinces as established’ by the British North America Act, and to remove the doubt the Canadian Parliament inserted the provisions which I have just quoted. The right honorable the Leader of the Opposition (Senator Pearce) has pointed out that Australia has power to legislate for the coastal trade of the Commonwealth. But what would be the position of a British ship trading between Australia and the United States of America? The British Government would not be interested in that vessel, and very complex legal questions would arise as to whether the British law applied to her, and whether, if it did, any Australian law intended to apply to her would be valid. These questions, among others, will be cleared up by the Statute of “Westminster. Senator Foll has raised what really is a diplomatic question, and one that is not closely connected with the motion. Under the Constitution, the Commonwealth already has power to take new territory, and this position is not affected by the proposed amendments of the Colonial Laws Validity Act. In so far as treaties are concerned, it was agreed at the Imperial Conference that treaties affecting other parts of the Empire would not be entered into without prior consultation with those concerned. With respect to the query as to how this matter originated, action along these lines was discussed by at least two Imperial conferences, and the proposition met with unanimous approval. I stressed when moving the resolution that was proposals do not tend towards unification as is feared by some honorable senators.’ On the contrary, they explicity preserve against invasion all existing State rights. That should meet the objection raised by Senator Johnston with regard to Western Australia. Certain senators have spoken against this resolution, as they appear to fear its effect upon shipping, and desire tho repeal of the Navigation Act. That is within the present powers of the Commonwealth. As Senator Brennan pointed out, the act has been challenged only once on the ground of repugnancy and on that occasion it was with respect to a trifling matter. As the act has been in operation for a period of nearly nineteen years, there is no real ground for apprehension. The rejection of this resolution will not prevent the operation of the Navigation Act. Any objection taken by honorable senators to this resolution on the ground that the existing Commonwealth Act is not to their liking, appears to me neither logical nor defensible. The power of the Parliament to make laws with respect to trade and commerce, extends to navigation and shipping - that is, navigation and shipping with other countries and among the States. The power is so extensive that the additional extension - any invalidity by reason of repugnancy - will not prejudice the position of Tasmania or of any other State. Their powers are limited to intrastate shipping, and are, therefore, not affected.
Honorable senators should pass this resolution for this reason. In 1926 all the dominions and the United Kingdom accepted the Balfour Resolution that the dominions were autonomous communities, and that they and the United Kingdom were in no way inferior one to another, but equal in status; but all agreed that in actual fact the dominions were in some respect.3 still subject to the United Kingdom, because the Parliament of the United Kingdom could still legislate for them. The 1926 Imperial Conference rightly decided that it had not time to consider the details of this matter, but that they should be considered by a special conference. This conference met in 1929. We were represented by Sir Harrison Moore, and the report on the operation of dominion legislation, which has been constantly referred to to-night, is the outcome of that conference. It recommended the measures which should be taken to make it clear beyond legal doubt that the dominions were no longer subject to legislation by the Parliament at Westminster without their consent. The report of this 1929 conference was before the Imperial Conference last year, and was accepted by all the dominions and the United Kingdom. It was then decided that, when requested by all the dominions, the Parliament at Westminster should pass a statute making it quite definite, legally, that it had divested itself of the powers to legislate for the dominions except at their request. Canada and South Africa have since passed resolutions asking the Parliament at Westminster to pass this statute. New Zealand, I understand, is just taking that action. If we now fail through an adverse vote in this Senate to make a similar request, we shall be failing in the undertaking which Australia gave in 1926, in 1929, and again in 1930. If we do not pass the resolution., we shall be the first to take action to cause disunity within the Commonwealth of British Nations: but if we accept it, and ask the Parliament at Westminster to pass this measure, our rights will be amply safeguarded, and, if the necessity arises, we can still ask Parliament to legislate for us. I ask honorable senators to pass this resolution, and thus enable the Commonwealth to keep its word to the other dominions. I think that I have established the case in favour of the passage of this resolution, notwithstanding the fact that some honorable senators fear its effect upon Australia. This legislationhas given concern to greater men than I am, not only in the United Kingdom, but also in the other dominions. Theyin all probability, have given more attention to it than I have. I find nothing in the agreement to which I can take legitimate objection. I hope that it will appeal to honorable senators, and that they will pass it with enthusiasm.
Question - That the motion be agreed to - put. The Senate divided.
Majority . . 11
Question so resolved in the affirmative.
Bill received from the House of Representatives; Standing and Sessional Orders suspended, and bill, on motion by Senator Barnes, read a first time.
Senator BARNES (Victoria - Vice-
President of the Executive Council) [8.45].- I move-
That the bill be now read a second time.
A number of amendments of a machinery character are required in order that the Gold Bounty Act may operate in a satisfactory manner. The first proposed amendment relates to the definition of “ licensed gold buyer “ which, under the act, means a person authorized under the law of a State or territory to buy gold. The licensing of persons to buy gold is adomestic matter for the States. Legislation in this respect exists only in Victoria and Western Australia, and there is, apparently, no intention on the part of the other States to exercise their powers to control gold buying. It is, therefore, necessary to extend the meaning of “ licensed gold buyer “ to include persons specified by the Minister for the purposes of the act. Every gold producer will then, when selling gold, be able to obtain the necessary certificate on which bounty claims will be founded. As the branches of the Royal Mint are gold buyers, they will also be included in the definition as amended. It is also proposed to insert a definition of “ tributer “.
As some of the amendments have reference to tributers, the provision in section three of theset dealing with gold con tained in ores shipped for treatment abroad would, in its present form, probably ‘ cause delay in bringing into account the gold produced in any one year, as evidence of the gold content of the ore would not immediately be available. It is, therefore, proposed that the gold shall be brought into account in the year in which evidence of the gold content is furnished. In this connexion it is proposed to limit the bounty to the amount of gold commercially recoverable. The present provision in section 7 merely requires an assay certificate of the value and content of the gold in the ore. In some cases this would exceed the gold obtained, so the necessity for this alteration is obvious.
The proposed new section 9a which deals with tributers is to give to them an equal share with the owners of any bounty payable on gold they have won. This provision is on all-fours with the provisions of the mining law of Western Australia, a State in which there is a great deal of tributing. The State act provides that 50 per cent. of any premium on gold shall be paid to tributers. The bounty is analogous to a premium, and, in principle there should be no differentiation.
The London boards of directors of various Western Australian gold-mining companies oppose this proposal, but the Government considers that their claim to the whole of the bounty cannot be justified. The object of the bounty is to stimulate ‘the winning of gold, an operation in which tributers are playing a big part, since they obtain about 100,000 oz. of gold annually. Tributers are, therefore, quasi-partners in the adventure, and are entitled to a share in the reward. I trust that London opposition will not influence honorable senators against conceding to the Australian miner the just reward for his labour.
The object of the amendment of section 18 of the act is to define specifically the constitution of the authority which may be appointed by the Minister to determine conditions of labour and wages.
The final amendment relates to the undertaking entered into by a gold producer who is registered as an applicant for the bounty. At present the form of undertaking is binding for ten years. If a producer decides at any time not to continue to be an applicant for bounty, it is not reasonable to hold him to the terms of his undertaking. It is proposed to remedy this. That, I think, clearly explains the object of this proposed amending measure. As the amendments are reasonable, and will improve the working of the principal act, I trust that the bill will have a speedy passage.
– I do not desire to delay the Senate in discussing this amending measure, the greater portion of which consists of amendments of a machinery character suggested to the Government by a conference convened in Melbourne in December or January last. The defects in the Gold Bounty Act of 1930 were pointed out by the representatives of the various State departments concerned, and those interested in the goldmining industry, who unanimously suggested that a gold council should be established. My only regret is that the Government has delayed so long in giving effect to the proposals then adopted; its failure in this respect has delayed the employment of perhaps thousands of men in this country, who, according to the number of letters one receives, are utterly at a loss to understand why there has been any delay. Moreover, the earlier establishment of a gold council would have resulted in more confidence being placed in the administration of the Gold Bounty Act, and also in the investment of a large amount of money. Clause 6, which relates to tributers, was not recommended by the conference, and connotes an absolute interference with the contract between the tributer and tributee. If a tributer is entitled to the gold under an agreement, he receives the bounty, because the gold i3 his property; but, under clause 6, a tributer is to receive one-half of the gold bounty in respect of gold which he produces, whether it is or is not his property. The regulations promulgated in June last, under the act which this measure is to amend, provide that “ Tributers who, under the term of his or their contract or contracts with lessees or owners of mines, are entitled to sell the gold won by them from the mine.” In adopting that regulation, the Government paid proper regard to established principles. If the gold belongs to a tributer, he is entitled to receive the bounty, but if the tribute is on some other basis, he should not receive it. ‘ There are other provisions with respect to the conditions of employment which can, if necessary, be considered in committee. I regret that the recommendations of those persons who placed their services at the disposal of the Government, in order to assist in developing the only industry which can make this country solvent, have received such scant consideration.
– Gold-mining is not the only industry.
– As it has a most important bearing on the finances of the Commonwealth, it is one of the industries that can make this country solvent. The recommendations, made by the Ministers of the various States, and the directors of mines concerned, together with every one from whom the Acting Prime Minister could obtain information irrespective of political considerations, have not been properly considered. I venture to suggest that those engaged in the industry would have welcomed a more comprehensive amending measure; but apparently this is all they are to get. I shall support the second reading of the bill.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 5 agreed to.
Clause 6 -
After section nine of the principal act the following section is inserted: - “ 9a. Where a gold mine or portion of a gold mine is worked by a tributer, the owner of the treatment plant at which gold from the gold ore produced by the tributer is recovered (whether the owner of that plant is the lessee or owner of the mine under tribute or not) shall account for, and pay to, the tributer fifty per centum of any bounty under this act received by the owner of that plant on account of the gold obtained from the ore so treated.”.
– I move -
That after the word “tributer” (first occurring), proposed new section 9a, the following words be inserted: - “ or tributers who under the terms of his or their contract or contracts with lessees or owners of mines, are entitled to sell the gold won by them from the mine.”
As the definition of “ tributer “ in the bill harmonizes with my amendment, and with the regulations framed under the act which this measure is. to amend, I trust the Minister will accept the amend*ment.
.-The amendment, which I shall oppose, would have the effect of limiting the benefits which it is intended to confer upon tributers. When tributers sold gold which they won from a mine, they would be entitled to the bounty ; but, in the majority of cases, tributers in mines where plant is installed, who allow the ore they produce to be treated in the battery belonging to the mine, are not entitled to claim the gold as their property.
– To whom would it belong?
– Tha.t would be determined by the terms of the contract under which they were operating. The average tributer signs a tribute agreement, and if he works on a mine that is equipped with a battery and other plant he has the crushing of the ore done there.
– He gets a percentage of the proceeds.
– Yes. But the tributer who works on a mine that is not equipped with machinery sends the ore to the nearest battery. It appears to me that the amendment does not do justice to tho tributers. If the ore was crushed on tho spot the owner of the plant would take possession .of the gold and sell it, giving the tributer his quota of the proceeds. But if the ore had to be sent away for crushing, the tributers would settle up with the mine-owners afterwards. If Senator McLachlan can assure me that the amendment does not encroach on the rights of the tributers I shall not oppose it; but it appears to me to place a limitation upon a number of tributers who otherwise would be entitled to receive their full share of the bounty provided.
– I cannot support the amendment, because I consider that it will cut out from the benefits of the bounty the huge majority of those who had entered into tribute arrangement* when the gold bounty legislation wau passed, and who are generally regarded as tributers. The committee has. already passed a clause which defines “ tributer “ as “ a person who works a mine or portion of a mine under an agreement with the lessee or owner of the mine to pay to, or receive from, ‘ the lessee or owner a portion or percentage of the product taken from the mine or of the proceeds of the sale of the product “. Now it is deliberately proposed to depart from that definition and to say that only one in, perhaps, twenty of those who have already been defined as tributers shall be entitled, to receive a portion of the bounty. That would not matter very much if it related only to tributes entered into after the passing of the act, because the mine-owners and the tributers would ‘ have had an opportunity to make arrangements specifying the exact conditions in the light of their knowledge of what the bounty was to be. But in regard to existing tributes it is only fair that, the bounty should he divided between the tributer and the mine-owner.
– Although the”’ tributer receives only one-third of the proceeds ?
– If we pass this amendment the tributer will get nothing. Not one in twenty real tributers sell the gold themselves. During the period that I lived on the gold-fields, only a small percentage did so. Yet it is proposed that only those who do so shall participate in the bounty, while the remainder are to be absolutely excluded ! The terms of this measure have been known in Western Australia since it was introduced in the other House. I have no objection to the proposal of the Government, which I regard as fair, reasonable and honest. In the circumstances, I cannot support the amendment.
– I cannot see a great deal of merit in the amendment: and even the clause itself, I believe, will defeat the object that the Government has in view. It would be in the interest of the tributer if it were left out; consequently, I shall vote against it. The arrangements usually made with tributers are on a percentage basis, or at so much an ounce. I can conceive of cases in which tho tributer would be entitled to the whole of the gold won, on payment of, say, £1 per oz. to the owner of the claim or the battery. The 50 per cent. division would place such a man at a disadvantage.
– Existing tributes will be affected.
– Existing tributes may be of the character thatI havementioned. I have not had experience of gold tributing; but I know a good deal about coal tributing. Frequently the coal-miner benefits to the extent of 60 per cent. That might easily be the case with a gold tributer; and, if it were, he would be at a distinct disadvantage under the clause.
– I am afraid that I have made myself inadequately understood. I thought that the Minister was perfectly agreeable to the amendment. Under the bill as it stands, a tributer will receive only 50 per cent. of the bounty, irrespective of what his proportion is of the gold that is won. That is absolutely inequitable and unjust.
– Under the amendment, he wil get nothing unless he sells the gold.
– I took the wording of the amendment from the regulations which the Government has issued. The point which I understand Senator Johnston has made is that the tributer may not be entitled to sell the gold. Would his views be met if I were to delete the word “ sell”, and thus make the amendment refer to those who are entitled to the gold that is won from the mine ?
SenatorGreene. - Entitled to a proportion of the gold won.
– The bounty follows the gold. If they were entitled to one-half of the gold won, the bill would be all right.
– They may be entitled to two-thirds.
– On the other hand, they may be entitled to only onethird. The clause as it stands will work unjustly in one way or the other.
– This is identical with the Western Australian act.
– The Western Australian act does not perpetrate this injustice to the tributer, the mine-owner, orthe plant-owner. No sane Parliament would pass such a provision. Although I have not had an opportunity to peruse the Western Australian act, I undertake to say that it is different from this.
– The information that I have is that they are identical.
– Are we to give largesse to one section of the community and prevent those people from developing who might prove more helpful to the industry? The bill is absolutely unjust. I am making an honest attempt to improve it. If a tributer is entitled to one-third, one-half, or twothirds of the gold won, he should receive the premium and the bounty. But it is proposed that he shall be treated in an altogether different fashion. It might be well to have the clause recast so that the tributer would get the same proportion of the bounty that he now gets of the gold which he wins. I do not know what reason there is for opposing my suggestion, except that some tributers may not be entitled to sell the gold they obtain. If the Minister persists with the clause in its present form there will be chaos and confusion in the industry.
SenatorR. D. Elliott. - The position might be met by inserting after the word “ tributer “ the words “ his proportion of “.
Senator Sir WILLIAM GLASGOW (Queensland) [9.16]. - I regard this measure as I regarded the Gold BountyBill. We might have anticipated these difficulties would arise when people got something for nothing I suggest that instead of the bounty being distributed on a fifty-fifty basis, it should be shared between the tributer and the tributee in the same proportions that they share the gold which is won. Where the lode comprises low-grade ore the tributer might receive more than 50 per cent. of the gold, whereas in the case of a richer lode, he might receive only 20 per cent. or 30 per cent.
– Under the bill he will get 50 per cent, of the bounty in either case.
Senator Sir WILLIAM GLASGOW.He should get only the proportion of the bountythat he now gets of the gold, whether it is more or less than 50 per cent. A tributer whose share of gold is 30 per cent should get 30 per cent. of the bounty; if bis share of the gold is 75 per cent., he should get 75 per cent, of the bounty. I suggest that the bill be redrafted along those lines.
– I cannot understand the opposition to the Government’s proposal, because it is both simple and fair. As the Commonwealth is finding the money for the bounty, the Government is necessarily interested in its distribution. The Government believes .that the tributer who works the mine is entitled to at least 50 per cent, of the gift offered to the gold-mining industry by the people of Australia. The tributer and the tributee should share and share alike.
– Does the Minister suggest that if a tributer gets 75 per cent, of the gold, he should get only 50 per cent of the bounty?
– I should not mind if he obtained 50 per cent, or the percentage of the gold, whichever is the greater. The lessee or owner of the mine is not the only person to be considered. I feel confident that the taxpayers of Australia, who find the money for the bounty, desire that the tributer who does the work shall get at least 50 per cent, of the gift which they provide. My personal opinion is that the bill does not give the tributer sufficient consideration; but I am prepared that he shall share the bounty equally with the person who equips him with plant.
.- There should be no difficulty about this matter. When the division of the gold won by a tributer takes place, the gold won will be divided into two parcels. Until that division takes place, the amount of bounty rightly payable to each party cannot be ascertained; but when it does take place, it should be an easy matter to apportion the bounty on a fifty-fifty basis. It is manifestly fair that the tributer should share in the bounty. Tributers have done much for the gold-mining industry. Generally, they come into the limelight only when the mine can no longer be worked on a large scale. They accept a good deal of risk, and, consequently they should share in the benefits which accrue from the finding of gold. Frequently, the efforts of tributers lead to the discovery of larger bodies of ore. I submit that the division of the bounty on a fifty-fifty basis is fair when the gold is so divided. If the tributers are to obtain no bounty, or a reduced bounty, they will have to rely on the strength of their organization to ensure that the contracts into which they enter will give them a sufficient proportion of the gold won to compensate them for the loss of the bounty. It is all a matter of bargaining.
Senator GREENE (New South Wales) [9.25’J. - This matter resolves itself into two sections. First, it affects the tributes which already exist. In respect of those tributes, it is clear that, unless we make provision for the sharing of the bounty, the tributer will get none of it. In that case, he will simply be entitled to that proportion of the gold he obtains which is set out in his tributing contract.
– It all depends on the terms of the contract.
– Under the terms of many existing contracts, the tributer would not be entitled to any share of the bounty. In that case, it will be only right to provide that he should share it. The only question which then arises is what is a fair share. The common sense way to deal with the problem is to provide that his share of the bounty shall be the same as his share of the gold. If his contract specifies 25 per cent., 40 per cent., 50 per cent., or 75 per cent, of the gold, he should share in the bounty in the same proportion. In his case, “the bounty is super-imposed on a contract already in existence. There is then, that other section which comprises new tributers, or tributers working under new agreements. In their cases, both parties to the agreement are aware of the bounty, and consequently, when arranging the terms of their contract, they will provide for the bounty being shared in the same proportion as they share the gold. Instead of the rough and ready justice proposed in the bill, it would be better to insert words which would ensure that the bounty shall be shared on the same basis as the gold is shared under the tribute.
– If a tributer, under his contract, was entitled to all the gold he found, would the honorable senator say that he should receive the whole of the bounty?
– I can scarcely conceive of a tribute containing such a provision; but if it so happened that a tributer under the terms of his agreement was entitled to the whole of the gold won, I should say that he should receive the whole of the bounty. On the other hand, if his share of the gold is 25 per cent., or 75 per cent., his proportion of the bounty should be the same. The only thing necessary for us to provide for is to meet the case of contracts already in existence, and the bill should be amended accordingly.
– To meet Senator McLachlan I propose that we insert after the word “ Where “ at the beginning of proposed new section 8a, the words “under an existing contract or agreement “. I assume that in existing contracts or agreements the parties thereto have made arrangements which they regard as equitable. Those arrangements were made before the Gold Bounty Act became law. With regard to future contracts, the tributers and lessees will make their own arrangements. I presume, therefore, that the view which Senator McLachlan desired to have expressed would be expressed if these words were inserted.
– I trust that Senator McLachlan will not press his amendment, because he is treading on dangerous ground. The regulations are based upon the Western Australian Act, which provides for a distribution of the proceeds of gold won on a fifty-fifty basis and that provision is working most satisfactorily.
– That may be all right for future contracts.
– It is all right for present contracts because, for the most part, arrangements by tributers are for an indefinite period and may be terminated within six months. Many mines are worked partly on tribute and partly on wages. All the tributers’ ore ‘is put through the crushing plant belonging to the mine, and in nearly every case the owner sells the gold. If this amendment is adopted the tributer will not have any voice in the selling of the gold which was won by him.
– Yes he would.
– Every one who has had experience in the gold-mining industry knows the risk there is in the selling of gold, so, perhaps, it would be advisable to provide that both the tributer and the owner should see the gold sold.. Senator Lynch made a very good point when he declared that the bounty was intended, not for the individual but to stimulate the industry. ‘ As a rule, a tributer works on properties that are on a non-paying basis. If he is lucky, and opens up a good body of ore, he finds, when his contract is up, that the terms for a future contract are altered materially, notwithstanding that he has done all the spade work.
– In the majority of the cases the tributers pick out the eyes of a mine.
Sentor DOOLEY. - It is very seldom that tributers are allowed to do that.
– At all events the tributer does not do much driving or sinking.
– My experience is that a tributer does a considerable amount of pioneering work. Generally he is prepared to work for less than the normal rate of wages, in the hope of making a good find, and the owner, at all events, receives something. It would be unwise to interfere with the clause which provides for a distribution of the proceeds and the bounty on a fifty-fifty basis.
– The intention of the Government is to see that the tributer receives his proportion of the bounty, and I understand that the purpose of the amendment is to prevent the tributer from receiving some proportion of the bounty which the Government hopes will go to him. I suggest that if we could come to a decision as to whether the tributer should receive portion of the bounty, which he is entitled to get under existing agreements, it would . clear the atmosphere.
– I do not agree with the Assistant Minister (Senator Dooley) that the amendment touches upon dangerous ground; but I believe that we shall be on dangerous ground if we legislate in the interests of one particular section of the industry as is proposed by the Government. The Government, in its zeal for the tributer, has submitted this rough-and-ready proposal for the distribution of the bounty on a fifty-fifty basis. This is not the proper way to legislate in respect of an important industry. My desire is that the amount of bounty which the tributer shall get shall bear the same percentage as the tribute bears to the total amount of gold won. Senator Brennan’s amendment may clarify the earlier portion of the provision, but I suggest that if we eliminate the word “ sell “ my amendment will do all that is required. Various expedients have been suggested. It is the business pf, the Government to reconsider and re-draft these provisions, because the amount of bounty paid to the tributer must bear some relation to the proportion which he will get under his tribute agreement. The Minister’s proposal is a roughandready method. I cannot vote for such an arbitrary proposal in respect of such an important industry. Greater care should have been given to the preparation of the bill. We cannot pass it in its present shape. I do not know whether the remarks of the Minister are to be regarded as a suggestion that largess is to be handed out to one section of the industry; but I am not prepared to support a proposal of that nature. The Government led me to submit my amendment by defining “ tributers “, under the statutory rules, as those who “ in the terms of their contracts with lessees or owners of mines, are entitled to sell gold won by them from the mine “. So if I have strayed with regard to the word “ sell “, I am straying with the Minister for Customs in his own regulations. It is not easy to draft an amendment offhand and in terms which I should approve if more time had been allowed for its consideration; but unless the Minister can offer me something more palatable I intend to press my amendment to a division, and, if it is not adopted, I shall vote fT the rejection of the clause.
Senator Sir GEORGE PEARCE (Western Australia) [9.45]. - It appears to me that we are discussing one thing and that the amendment deals with another. The amendment moved by Senator McLachlan deals only with cases where tributers become owners of the gold which is the subject of the tribute, but the usual practice is for the mine-owner, who possibly is also the owner of the treatment plant, to take possession of the gold and pay to_ the tributer a percentage of its value. Senator McLachlan’s amendment, therefore, does not touch the question which the committee has been discussing: the proportion of the bounty which the tributer should receive. Senator Lynch said that the gold produced represents a solid lump, which is divided into two parts, between the tributer and the owner of the mine. But be will see that if the basis for the division of that lump of gold is one-third to the tributer and two-thirds to the owner, it is impossible to give 50 per cent, of the bounty to each, and that the basis of the division of the bounty must also be one-third to the tributer and two-thirds to the owner. Senator Greene raised the point that many of these tributes have been entered into with no provision for the distribution of the bounty. Obviously we cannot make a present of the bounty to either the miner or the tributer. Both contribute to the production of the gold, and the bounty must be shared in the proportion set out, in the tribute agreement. I suggest that the Minister should report progress at this stage with a view to drafting an amendment on that fair basis, and that Senator McLachlan should withdraw his amendment, which puts the tributer out of court altogether. From my experience of the practice of gold-mining, the tributer never does own the gold, so that if the honorable senator is anxious that the tributer should get the bounty only when he owns the gold, ho will get nono at all.
Senator LAWSON (Victoria) “9.4fl].What Senator Pearce says is undoubtedly correct. In the definition clause “ tributer “ is defined as -
A person who works a mine or portion of a mine under an agreement with the lessee or owner of (lie mine to pay to or receive the lessee or owner a portion or percentage of the product taken from the mine or of thu proceeds of the sale of that product.
I take it that the feeling of the committee is that the tributer shall get his proportion of any bounty payable on the basis of existing contracts, but that we should not attempt to dictate what terms of tribute should be entered into after the passing of this measure. Any attempt to do so would impose a burdensome restriction on the freedom of the_parties to make their own arrangements. In any event, this statutory provision would be taken into account in the making of such agreements. The Chamber of Mines in Victoria is of opinion that the clause we are discussing should be deleted as, if passed, it would interfere with freedom of contract between the owner and the tributer, and also impose another restriction on investment. I take it that the Senate is in favour of some modification of the clause, so that the .tributer will get the same proportion of the bounty as the proportion of the gold won to which he is entitled, and I have roughly drafted an amendment which seems to me to meet the position. It reads -
Where under an existing contract a gold mine or portion of a gold mine is worked by a tributer, the owner of the treatment plant . . shall account to and pay to the tributer the same, portion of any bounty under this act received by the owner of that plant on account of the gold obtained from the ore so treated as the portion of the gold obtained to which the tributer is entitled.
That is better than a rough and ready way of providing for a 50-50 provision of the bounty. The tributer may be entitled to more than 50 per cent, of the gold won.
– That might mean a varying payment to tributers on the same mine.
– The bounty would be paid in the terms of any existing contract. These contracts are usually based on the value of the product won, and that value is to be increased by the bounty payable. That the mine-owner and miner should share in their respective proportions the value of the ore won seems to me an absolutely equitable arrangement. It amply protects the tributer. I submit my amendment for the consideration of the Minister in the hope that he will report progress and have it carefully considered.
– I am sorry that none of the amendments put forward by honorable senators are acceptable. The Government, in making this bounty available to the gold-mining industry, is anxious that the two sections carrying on that industry shall get an equal share of the money made available-. If there is stupidity in anything, it is in the attitude assumed by the Chamber of Mines in Victoria, that a division of the bounty on an equal basis would restrict investment. People were investing in gold-mining before there was any talk of a bounty. Nothing could be more assinine .than the suggestion that the payment of a bounty wil! restrict investment. Surely a better reason than that can be advanced for the deletion of a clause which has been drafted for the purpose of giving tributers a share of the bounty provided by the people of the country. I am astounded that there has been so much quibbling about the matter. It seems such a common-sense arrangement that I can- not understand the opposition it has met from honorable senators. The greatest gold-producing State in Australia to-day is Western Australia, and the law of thai State provides that the tributer must be paid 50 per cent, of what is produced in the mine in which he is operating.
– Is not the Minister confusing the premium on gold with the gold bounty?
– Probably I am doing so, but there is very little distinction between the two. The only States which have made provision for tributers are Western Australia and Victoria. I do not know what the law is in the latter State, but the Government has been guided by the experience of Western Australia, where the law is quite clear on this point. I think that honorable senators ought also to be guided by the experience of men who have been engaged in West- N ern Australia in the development of mining for many years past. The mineowners and tributers of Western Australia were satisfied to carry on their operations on a fifty-fifty basis before the bounty was made payable, and I am satisfied that they will not haggle about the method now proposed for dividing the gold bounty.
– If the tribute provides that the tributer must get 75 per cent. of the gold, is it not also fair that ho should get 75 per cent, of the bounty?
– I do not know that the Government would offer any objection to the tributer getting 75 per sent., but the point made by the right honorable the Leader of the Opposition (Senator Pearce) was that if the existing contract provided that the owner should get three-fourths of the gold produced and the tributer one-fourth, the bounty should also be distributed on the »ame basis. Such a proposal, which I consider unfair, would not appeal to the Government, and I cannot accept it.
– Honorable senators representing Western Australia are very pleased to find the Minister paying such compliments to that State; but we have to inquire into the merits of such compliments. The advantage gained by the exchange position which is divided on a fifty-fifty basis, may be a vanishing quantity, whereas the proposal with which we are now dealing will be of substantial benefit increasing as time goes on for perhaps ten years. . In dealing with a proposal which has a very important bearing on the mining industry, we need to be very careful with respect to the advantage in the matter of exchange which is only a passing phase. The Leader of the Opposition (Senator Pearce) caught me napping on the percentage basis, but what I had in mind when I instanced the gold as it came from the plant, was that both the owner and the lessee and tributer shared on a fifty-fifty basis. Unfortunately I used the proportion of onethird and two-thirds. I remind the Minister that the proper proposal is to adjust the position fairly as between tributers and tributers. The Leader of the Opposition put his finger on the spot when he asked if a tributer on a 75 per eent. basis would be satisfied with a fiftyfifty basis, or one-half of the gold bounty ? Such a tributer would lose 25 per cent., whereas a tributer on a 25 per cent. basis of the gold won would be on a “good wicket “. If a tributer on a fifty-fifty basis receives the bounty in that proportion, he has no ground for complaint. If a tributer who is entitled to 25 per cent. of the gold won, receives 50 per cent, of the bounty, he stands to gain a clear 25 per cent. If a tributer should receive 75 per cent., and gets only 50 per cent., he is robbed of 25 per cent. This amendment is a means of holding the scales fairly between tributers and tributers, but under the conditions I have outlined some would stand to lose, and others to gain. We should lay down a fair basis of allocation, which can, as suggested by Senator McLachlan, be apportioned on the quantity of gold won by a tributer. I trust that the Minister will look into the matter, because if something is not done in the direction suggested by the Government the bounty will serve only as an irritant between tributers.
– I think I can see why the Minister in charge of the Senate (Senator Barnes) is so wedded to the belief that his proposal is just when it is obvious to almost every honorable senator but himself, and those immediately surrounding him that it is unjust. He is wedded to the system in operation in Western Australia, where apparently the law provides - so he says, and I accept his word - that any tributer and any mine-owner or lessee, as the case may be, shall receive the premium on gold on a fifty-fifty basis, if the contract so provides.
– Thatrefers only to a division of the exchange premium.
– If all tributers were on that basis this provision would be absolutely fair, and because that is the practice inWestern Australia, the Minister thinks it right and proper. Although Western Australia may produce large quantities of gold under the tribute system, tribute work, I remind him, is also undertaken in other parts of the Commonwealth. I am surprised that the Minister, who is a resident of Ballarat, should decry the possibilities of either that great mining centre, or the great mining centre of Bendigo, of -which I was a former resident.
– I did not do so.
– Perhaps the honorable senator did not decry them, but he said that they were dead.
– The industry in those centres may be resurrected.
– According to the Minister, both centres are at present dead. If, as between the tributer or mine-owner or lessee, work was being conducted on a fifty-fifty basis, the tributer should receive 50 per cent. of the bounty.
– That is not the law in Western Australia.
– The Minister has assured us so often that it is that I have began to believe he is right.
– Perhaps I inadvertently misled the committee. I intended to refer to the allocation of the premium.
– I should have been convinced that the Minister’s tenacity in adhering to his view arose from the fact that he did not quite comprehend the view put by Senators McLachlan, Greene, Lawson, and myself, but for his statement that, if an owner was receiving 75 per cent. of the gold won, as against 25 per cent. received by the tributer, he would see that that owner received nothing. This leads me to believe that_ he is not holding the scales quite fairly to the Commonwealth which is providing the money. Dr. Johnson said that reporting in the House of Commons, he took care “that the whig dogs should not have the best of it “. I am afraid the Minister is seeing to it that the tributers, and not the owners, shall get the best of this bounty. I am unable to comprehend why he does not realize that the proposals put forward by so many honorable senators of the Opposition are absolutely equitable; I am sure that, if he looks closer into them, he will realize that they are fair. I therefore join with those who suggest that progress should be reported in order that he may have an opportunity to consult his colleagues.
SenatorRAE (New South Wales) [10.9]. - I trust that the Minister will stick to the clause. If any amendment should be made, it should be in favour of the tributers. No one can fairly assume that any tributer is working on a rich proposition.
– The tributers only undertake such work when they are hard up.
– Tribute work is undertaken under the precious system of “ freedom of contract.” The mine-owners or lessees can make onerous terms, which the unfortunate tributer has to accept. Even if it is admitted that a fifty-fifty basis is fair, it is obvious that the tributer will be receiving le3S than he is entitled to. When mining is done on tribute, it is because the mine will not pay wages, and therefore a tributer cannot be getting much for his work. Consequently, if any amendment is made in this clause, it should be in the direction of giving the tributer more than what is provided under a fifty-fifty basis.
– Supposing he pays the mine-owner £1 an oz. out of the proceeds of the gold, as is frequently done, would not a tributer be in a bad position under this clause?
– He would be receiving 50 per cent. of the bounty. Another proposition put forward is that, if a mine-owner or lessee enters into a contract with a tributer under which the latter is to receive only 25 per cent. of the gold won, the tributer should only receive 25 per cent. of the bounty. The less a tributer receives of the gold won, the greater, in my opinion, should be his proportion of the bounty.
Senator Sir GEORGE PEARCE (Western Australia) [10.12]. - Senator Rae is under a misapprehension. The percentage of gold received by a tributer is determined very largely by the richness of the lode on which he is working. In a rich proposition the percentage received by a tributer might be as low as 25 per cent., but in a poor proposition the mine-owner might offer the tributer 75 per cent. of the gold won. If the Government’s proposal were adopted, tributers working a poor proposition would be treated very harshly, since they would be given only 50 per cent. of the bounty.
– It is rather difficult to follow all the propositions placed before the committee. The proposal of the Government does ensure that the tributers, in the ordinary acceptation of the term will receive 50 per cent. of the bounty. I have listened to the proposals submitted by Senator McLachlan, and so far as I have been able to follow them it appears to me that an ordinary tributer would not receive any portion of the bounty under either of them. It seems to me that the amendment has been designed with the object and would have the effect of depriving fully 90 per cent. of the tributers of any bounty. I am not sure that the proposal submitted by Senator Lawson would not have a similar effect, owing to the fact that a proportion of the gold, and not a proportion of its value, would be received by the tributer. Unless the amendments are more clearly and definitely worded, and show that the tributer is to get his fair share of the bounty, I shall support the proposal of the Government. The result of the passing of Senator McLachlan’s amendment would be that the working tributers would get nothing. When all is said and done, the object of the gold bounty is to increase gold production; to cause more men to be employed; to induce every person who has a tribute, or is working a mine, to recover as much as possible from it. . In these circumstances, I prefer the proposal of the Government to those that have been suggested, some of which certainly, and others, probably, would cut out the working tributer altogether.
.- It is quite obvious that the amendment does not meet with the entire approval of those who desire to accomplish tho end that I have in view. I, therefore, suggest that the Minister accept the amendment that has been indicated by Senator Brennan.
– Has the honorable senator dropped his amendment?
– I shall inform the Minister in due course. If he is uncompromising in his hostility, I shall have to tost the feeling of the committee so as to ascertain whether this is in reality a gold bounty or a bounty to individuals. That is the whole issue. As I understand the act to which I lent my support some time ago, it provided for the payment of a bounty on the gold produced. I want it to remain in that form. I suggest that the words “fifty per cent.” be struck out, and that the percentage of bounty payable to the tributer shall be equal to the percentage that he receives of the product of the mine, or of the proceeds from the sale thereof. As the Minister appears to be disinclined to act upon that suggestion, I ask leave to withdraw my amendment, so that I may test the feeling of the committee on the point.
Amendment - by leave - withdrawn.
.- I move-
That after the word “Where” at the commencement of proposed new section 9a the words “ under an existing contract or agreement “, be inserted.
– Why “ existing “ ?
SenatorMcLACHLAN. - I take it that these people will protect themselves in the future. This has a bearing only on contracts that are now in force. In the event of the committee accepting the amendment, I propose to ask it to remove the arbitrary 50 per cent. and to insert phraseology that will bring the percentage into line with that which the tributer receives under his tribute agreement.
– This amendment is just as distasteful as the previous one; probably more distasteful. Honorable senators do not seem to be able to get it into their minds that the people of Australia, through the Government, are making available a certain sum of money for a particular purpose, and that they do not want either of the parties who contribute to the production of gold to receive either more or less than 50 per cent. of the gift. We do not wish the mine-owner to obtain two-thirds or three-fourths. Australia says to these people : “ We are giving each of you an equal share so as to encourage you, so far as we are able, outside of any arrangement under which you have previously been working “. This is given as an incentive to the production of gold, and for no other purpose. In the judgment of the Government, it would be most unfair to make any distinction between the parties.We say that the bounty must be distributed equally. I amsomewhat astonished that honorable senators should have any hesitation in accepting the proposal of the Government. We do not seek to do any injustice to the owner or the lessee of a mine. This money, in our opinion, is being sanely and wisely distributed. Honorable senators know that the bounty is not paid on the whole of the gold produced in Australia, but only on the production above the average of the last three years, which was in the neighbourhood of 300,000 oz. One-third of that was produced by tributers in Western Australia. Apparently, they are a very important factor in the carrying on of this industry; therefore, they should be treated with every consideration. I have never been a tributer ; but I know from experience that the owner of a mine does not give a tributer very attractive terms. These men, however, are prepared to take a risk. They may work for a month, and yet take nothing home to their wives and families ; but, on the other hand, they may be lucky, and strike a rich patch. I do not know what is the practice to-day, but in the years that have gone a tributer was always kept “ cm the lap “ ; his contract lasted for only a couple of weeks or a month, and if he happened to strike anything rich his contract was cancelled, and he received very little consideration. I consider that the proposal in the bill is equitable. To my mind, the owner should not be given more than one-half of what Australia is presenting to the industry. That is the pivotal point of the bill.
Senator Sir GEORGE PEARCE (Western Australia) [10.27]. - I appeal to the Leader of the Government (Senator Barnes) to report progress. We have assisted him considerably to dispose of business, and have done a fair day’s work. He has referred to the Western Australian legislation. I should like to study it, as well as the amendment, so that I may be in a better position to decide upon what action I shall take. I believe that I am making what is only a fair request. The Opposition has helped the Government to dispose of its business on every possible occasion.
.- Does the Leader of the Opposition (Senator Pearce) mean that we should adjourn the Senate?
– We have a tremendous amount of business to dispose of.
– There is only one bill on the notice-paper.
– I am very anxious to have the sheet cleaned up to-night, because quite a lot of new business will be ready for our consideration to-morrow. Many honorable senators have urged that they be given the opportunity to get away to-morrow night. I do not know whether that will be possible, but the Government is making the attempt. I would not mind postponing the further consideration of this clause if the committee would dispose of the remaining clauses. But I urge upon honorable senators the necessity of going on with other business, and of sitting until at least midnight.
– I am not going to speak on the Wheat Marketing Bill to-night.
– If the Opposition is in that frame of mind, I, of course, am powerless ; because it usually gets its own way.
– This is the first occasion on which the Opposition has asked the Government to meet it. We generally meet the Government.
– I admit that the Opposition has been very generous in its treatment of us, and that it sometimes obliges us. That, however, does not apply to its treatment of our legislation. 1 suggest that we postpone consideration of this clause, but deal with the remainder of the bill to-night.
Clauses 7 to 9 agreed to.
Motion (by. Senator Barnes) agreed to -
That the Senate at its rising adjourn till to-morrow, at 11 a.m.
Senate adjourned at p.m.
Cite as: Australia, Senate, Debates, 29 July 1931, viewed 22 October 2017, <http://historichansard.net/senate/1931/19310729_senate_12_131/>.