23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMulIin) took the chair at 3 p.m., and read prayers.
– I desire to ask a question of the Minister representing the Minister for Air. What steps are taken to verify university degrees claimed to be held by applicants for appointment to the education branch of the Royal Australian Air Force, and to verify the degrees attributed to officers in the Air Force List? Is it still possible for a man to be commissioned and later promoted in the Royal Australian Air Force on the basis of a degree he has never received and, afterwards, to secure employment at a school on the basis of an- inaccurate entry in the Air Force List, as was done by the present Leader of the Country party in the New South Wales Parliament?
– I have no knowledge of the particular case referred to by the honorable senator. I cannot fail to notice the connexion between the timing of the question and the New South Wales elections. I do not doubt that there is a very effective answer to the charge, which I shall get for him.
– Can the Minister for Customs and Excise inform me of the rates of duty the department imposes on nylon and other synthetic materials used in clothing? I might mention that several constituents, who have at heart the present problems associated with the wool industry, have sought this information from me.
– The rates of duty applicable to nylon and. other synthetic materials are shown in the tariff schedule under the heading “ Man-made fibres “. The rates applicable, generally speaking, are 2s. 6d. British preferential tariff, 2s. 8d. most favoured nation tariff, and 3s. Hd. general tariff, less 15 per cent., or ls. 6d., ls. 8d. and 2s. Id. per square yard, whichever produces the higher duty. Those rates apply to materials which contain more than 50 per cent, of man-made fibres.
– I wish to direct a question to the Minister representing the Minister for the Army. Is it possible for the Minister to arrange for the members of his forces to be. given mortar and machinegun practice at a place other than the rifle range at Redbank, Queensland, which is adjacent to a residential area?
– I shall seek the information from my colleague, the Minister for the Army, if the honorable senator will put his question on the notice-paper. I do not know the area of which he speaks. I am sure that, if it is possible, the Minister for the Army will give the matter every consideration.
– I desire to ask the Minister for National Development the following questions: Is the Bureau of Mineral Resources continuing with geological mapping and petrology investigations, together with drilling operations in the sedimentary basins of Australia? Will the results of these tests be available within and outside Australia? What effects have the results obtained by the Bureau of Mineral Resources had on the search for oil in Australia and her Territories?
– I have some information which I can make available to the Senate in reply to the honorable senator’s question. The purport of that information is to illustrate the extent to which the search for oil in Australia has increased in recent years. In the four years from 1956 to 1959, a- total of more than £20,000,000 of overseas capital from both sterling and dollar areas has gone into the search for oil. Of that total, £6,700.000 was invested in 1956. £4.900.000 in 1957, £4,400,000 in 1958. and £4.600,000 in- 1959. Of the total of £20.600,000, a sum of £12,500,000 has been invested in Papua and New Guinea, and £6,600,000 in Western Australia. If any honorable senator is interested in the figures, I have a breakup of the amounts that have been spent in the other States.
– How much has been> expended1 in Queensland?
– A sum of £273,000 has been expended in Queensland. Queensland is only now commencing to come into its own in the search for oil. New areas have been opened up and new companies are taking an initial interest in the matter. I am very hopeful that we shall see a marked acceleration of the search for oil in Queensland in the next year or so. I remind the honorable senator that a very substantial part of Queensland is in the sedimentary basin and, therefore, is potentially an area in which oil may be discovered.
For some years past, the Bureau of Mineral Resources has been carrying out the basic survey work. Its oil search programme is costing some £400,000 a year. In addition, about £100,000 a year is being spent by the National Mapping Division, making a total expenditure by those two instrumentalities of £500,000 a year. We must add to that figure the deduction for taxation purposes of money that is invested in the search for oil. We must also take into account proposals that will shortly come before the Parliament whereby another £1,000,000 a year will be found by the Government for this purpose.
I should like to make the point that all this work which is being done by the Government, or in association with the Government, is a matter of public information and is made available to those in Australia and overseas who are interested in the search for oil. I have no doubt at all that that information has been a very material factor indeed in arousing a much greater interest in the search for oil in this country, which is so very important to us.
– Has the Minister representing the Minister for Health seen the report in last evening’s issue of the Melbourne “ Herald “ about the possibility of a link between poliomyelitis and budgerigars, the information in the press having been based on surveys made by doctors in Glasgow and Belfast? Tn view of the great popularity of budgies as pets among children in an age group that is most susceptible to poliomyelitis, will the Minister investigate the position in Australia so that necessary steps may be taken to minimize any danger that may exist?
– I did read the press article about an association between poliomyelitis and budgerigars. I have no doubt that my colleague, the Minister for Health, has seen the report and is investigating the position. If the honorable senator places her question on the notice-paper, I shall refer it to my colleague and get a report on the position.
– 1 direct a question to you, Mr. President. May I say in expanation that last year you were good enough to promise that you would investigate the circumstances of the hanging in this building of the portrait of flat g eai Australian, Sir John Forrest. I find that the portrait of this distinguished gentleman is still hanging in one of the corridors of Parliament House and that it is nameless. Yesterday, 1 heard two people refer to the subject of it as “ Mr. Anonymous “. I cannot help feeling that the people of Western Australia do not appreciate this great Australian being treated in that fashion. Will you, Sir, as President, investigate this matter, as you promised to do last year, and see that at least the name is restored to the portrait?
– I shall see that the name is placed on the portrait. Investigations have been carried out in order to see where the portrait could be hung, and we have taken advice on that matter from the Art Advisory Committee. I know that you wish to have the portrait hung in King’s Hall. Senator Robertson, but I say to you now that that does not seem at all practicable, because there is no space in King’s Hall for this particular portrait.
– 1 address a question to the Minister representing the Minister in charge of the Commonwealth Scientific and Industrial Research Organ:z tion. T preface my question by saying that as water is one of the most important fa-ton in the development of this country, ii is disappointing to find that there is no reference to desalination of salt water in the annual report of the C.S.I.R.O. Is the organization conducting experiments on desalination methods? If so, how m:ny different methods have been tried? Is the
Minister convinced that sufficient research is being done on this important question?
– I find it a little difficult to answer the question. 1 know that my own department is charged with some responsibility in this matter and that it is the conduit pipe, as it were, through which government funds are provided for experiments on this subject that are taking place overseas. As to whether the C.S.l.R.O. is doing work in addition to that, 1 do not know. I agree with the honorable senator on the importance of the matter, and although 1 have given a partial answer, I ask him to place his question on the noticepaper. I shall then obtain a comprehensive answer from all the departments concerned, so that the Senate records will contain information about what is going on in relation to this important activity.
– I ask the Minister representing the Minister for Primary Industry whether, as a result of the recently concluded International Wheat Agreement, Australia’s quota has been altered under the new agreement.
– The International Wheat Agreement has been concluded only within the last day or so. The details of the agreement will be announced by the Minister for Trade.
– 1 wish to ask you a question, Mr. President, following that addressed to you by Senator Robertson. I have noticed in King’s Hall the portrait of a former distinguished President of this chamber, Senator Newlands, which also has no name plate. Would you, Sir, consider having a name plate affixed to that portrait, too?
– The whole matter of these portraits has been gone into, and we are having name plates attached to them. It takes a little time to have the work done, but it is being done.
– I direct a question to the Leader of the Government in the Senate, since he represents the Prime
Minister, who is the virtual head of the Public Service Board. Is the Minister aware that the Public Service Board is dropping preference to ex-servicemen in regard te* employment in the Public Service and that many ex-servicemen have been warned to look for other jobs, as their positions are to be filled by juniors? Is he aware that many who have passed the educational examination for permanent appointment have been refused such appointments because of the tougher medical examination and the fact that they suffer, medically, from war disabilities? Will the Minister provide information as to the number of ex-servicemen who have been so rejected in spite of the fact that they have a record of many years’ continuous service without sick leave and that their disabilities do not affect the efficiency of their work?
– I have no information to offer in reply to the honorable senator’s question, except to express a personal view that I very much doubt the accuracy of his statements. However, I think the matter is of such importance that the only appropriate course to adopt would be to ask him to place the question on the noticepaper so that we may get the facts. I should be surprised if the facts bear out the allegations.
– I shall preface my question to the Minister for Repatriation with a brief explanation of the reason for it. I have been informed on very good authority that artificial limbs, particularly arms, now available in Australia are not up to the standard of those made in America; and the suggestion has been made that one authority should engage in the manufacture of .artificial limbs required in Australia. That authority could get suitable staff to train in modern methods and so assist those who have lost their limbs by providing them with the most efficient aids. As the Commonwealth Artificial Limb Factory is controlled by the Minister for Repatriation, will he confer with his colleague, the Minister for Health, on the possibility of the Repatriation Department being made responsible for the provision of all artificial limbs to civilian amputees as well as to ex-service amputees?
– I was rather surprised to hear the honorable senator say that the artificial limbs manufactured by the Commonwealth Artificial Limb Factory are not up to standard. That statement is not borne out by the facts that have been shown from the visitations of various people from overseas. Only last year, a very distinguished orthopaedic surgeon, Captain Canty, who is the senior surgeon in amputee services at the naval hospital in California, visited Australia to attend the Pan-Pacific Rehabilitation Conference. I was able to induce him to visit our artificial limb factories and also the repatriation hospitals at Concord in Sydney and Heidelberg in Melbourne. He was afforded an opportunity to see amputees at the hospitals and at the limb factories being fitted with artificial limbs, and also to observe the research that we are carrying out. When Captain Canty observed that artificial knees were being manufactured in Sydney by an entirely new method, with new apparatus, he asked me whether I could let him have one that had been made up as he would very much like to take it back to America to be tested at his hospital.
Captain Canty had with him a film containing illustrations of two artificial arms that had been fitted to a young girl in America. A Sydney man and his wife, whose daughter had had both her arms amputated, went to see him and asked him whether he thought their child could be fitted with arms in America similar to those shown in the film. His reply was to the effect that there was no need to travel to America to obtain artificial limbs as they could be provided by the Commonwealth repatriation limb factory in Sydney. Those are two examples of the high regard which overseas people have for our limb factories. Although not many amputees live in Tasmania, the efficiency of the factory in that State is not impaired in any way.
As for the proposal that the Commonwealth limb factory should manufacture all artificial limbs, whether for civilians or for ex-members of the services, honorable senators will realize that the artificial limb factories were established after the 1914-18 war for the express purpose of supplying the best possible limbs and other appliances to exservicemen. That policy was followed for quite a long time, but of late years the
Commonwealth limb factories have been making limbs for civilian amputees, although certain restrictions apply in this respect. As the number of ex-servicemen amputees requiring artificial limbs has become less, I have become increasingly aware of the necessity to maintain the efficiency of the factories, and with that end in mind I submitted a proposal to Cabinet that the factories should manufacture for civilian amputees limbs that were previously provided by the Department of Social Services. In addition, I suggested that the factories should provide limbs for amputees on the recommendation of charitable organizations, such as the Australian Red Cross Society and other societies, which would be responsible for payment for the limbs. Further, I suggested that the Commonwealth factories should also manufacture limbs in cases where a doctor said that he could not obtain a limb from a civilian factory. My proposal was accepted by Cabinet, and the Commonwealth factories are assured that for many years their services will be required in supplying artificial limbs.
If the Commonwealth were to set itself up as the supplier of artificial limbs for all civilian amputees who are now normally accommodated by private companies, a great deal of re-organization would be necessary. We, as a government, believe in private enterprise, and for that reason do not propose to set up in competition with private companies. Artificial limbs will be supplied to civilians only on the recommendation of the Department of Social Services which, after all, is a government instrumentality. Thus, while the Commonwealth factories are prepared to supply artificial limbs to some civilian amputees, they are not prepared to become vendors of limbs to all and sundry.
– I direct to the Minister representing the Minister for Trade a question relating to the International Wheat Agreement which has just been negotiated. The Minister will agree with me that the conclusion of this agreement has excited great interest in the wheat-growing industry, and for that reason I ask whether he is in a position to inform the Senate of the terms of the agreement. I refer in particular to those features which may benefit the industry.
– I have received the following information from my colleague, the Right Honorable John McEwen. The international wheat conferences ended upon the basis that the delegates agreed to refer back to their governments for ratification the new three-year agreement. The essential features of the agreement are, first, that each one of the importing countries will, each year, buy a stated percentage of its current import requirements; and, secondly, that the exporting countries must compete within specified price ranges of between one dollar 90 cents and one dollar 50 cents, Canadian currency, which is equivalent to about 17s. and 13s. 6d. a bushel in Australian currency. The prices are based on No. 1 Manitoba northern wheat, in bulk, in store at Fort William, with other prices related to those basic prices.
The quantity of wheat covered by the new agreement is expected to be about 420,000,000 bushels, which is between 40 per cent, and 50 per cent, greater than the quantity reserved in the current agreement. The renewal of the agreement is another step forward in carrying into effect the principles supported by all countries at the Commonwealth Trade and Economic Conference at Montreal. As all honorable senators will remember, one of the objectives of that conference was to ensure such trade arrangements as will give greater stability to commodity prices.
– I address a question to the Minister representing the Minister for Trade, lt refers to an announcement in the press this morning to the effect that a decision has been taken not to alter the present level of import restrictions. Reference was made in the newspapers to the existence of an advisory committee. I ask the Minister whether he can tell the Senate the constituent members of that committee. If he cannot give their names, can he tell us the interests they represent? Will the Minister inform the Senate of the considerations that were referred to by the committee and the considerations that have actuated the Government in arriving at its decision?
– I am sorry to say that, offhand, I cannot give the names of those who constitute the committee, nor can I say what their particular walks in life are, but I do remember that the constitution of the committee was announced publicly. I shall get that information and give it to the honorable senator. As to maintaining the level of imports at £800,000,000 per annum, that was a Government decision based on circumstances and on trade conditions, with the Government clearly aiming at maintaining as large a volume of imports as we could possibly manage - even though maintaining imports at that level might mean some worsening of overseas balances in the current year.
– I ask the Minister representing the Minister for Trade: What international agreements on commodities have been concluded since the Commonwealth Trade and Economic Conference in Montreal last October? Also, what commodities are at present under consideration?
– Since the Montreal conference, an international conference has re-negotiated the international sugar agreement and, as I said earlier, the international wheat conference is considering the renewal of the existing wheat agreement, which expires on 31st July next. Discussions are either being held - or are being arranged - in respect of lead and zinc, copper, coffee and rubber. On the food and agricultural side, discussions are occurring with regard to grains, rice, coco-nuts, coco-nut products, dairy produce and cocoa. Such a short period has elapsed since the Montreal conference that that is a not inconsiderable result. Concurrently with these special conferences Australia is pursuing, through Gatt and other international forums open to us, its objective of reducing the effects on our export trade of the high, perhaps excessive, levels of agricultural production in industrial countries.
– I ask the Minister for Civil Aviation: Does the agreement, pursuant to which Canadian Pacific Airlines conducts a weekly Sydney-Vancouver service, come to an end to-day? Is it a fact that controversy has arisen between Australia and Canada over the desire of the Australian Government to renew the agreement only on the basis of fortnightly trips? Will the Minister make a statement on the whole matter, indicating what arrangements, if any, are to operate after to-day? Will the Minister make available a copy of the current agreement between Australia and Canada in this matter?
– I speak from memory when I say that the terms of the agreement between the Australian and Canadian Governments with respect to the Sydney-Vancouver service provide that each country shall give notice - a period of months - of its intention to terminate the agreement. I have received no notice of termination and, accordingly, the current agreement continues to operate; it does not come to an end to-day. The agreement provides, further, for a fortnightly service between the two countries. A few years ago, in rather unusual circumstances, this was varied, on a temporary basis, to once weekly. That has continued until about the present time. Far from there being any controversy between the two countries, recently an arrangement was arrived at that further talks should take place. I have given the Canadians two dates - two very early dates - from which to choose for the holding of the talks. As to the honorable senator’s request for the text of the agreement I will, if possible, be pleased to make it available.
– My questions to the Minister for National Development relate to the payment of rewards by the Bureau of Mineral Resources for the discovery of uranium. What is the maximum reward payable by the Government for the discovery of uranium? Does the Minister believe that the paying of rewards encourages prospectors to search for uranium deposits? Have any significant deposits been discovered during the last two years? Do we require further quantities of uranium oxide? If so, will the Minister consider increasing the reward?
– The honorable senator has asked me a pretty comprehensive list of questions. I do not know, offhand, the maximum amount of the reward. I think that the payment of a reward, com bined with tax concessions, has done a great deal to stimulate the search for uranium throughout Australia, particularly in northern Australia. A great deal of the basic work has been done. To my knowledge, no significant new deposits have been discovered during the last two years, but at the moment a good deal of work is being done upon two deposits, one in the Kimberleys and the other on the boundary between the Northern Territory and Queensland. It remains to be seen whether that work will justify the high hopes that are at present held, based on the preliminary surveys.
So far as uranium is concerned, the Australian Atomic Energy Commission, which is far better equipped to give a view than I am, holds the view that uranium is of great importance to Australia and that we should try to discover further deposits. It holds the view that we should make quite certain that we have supplies in reserve for use in the years to come, when undoubtedly atomic power will make an increasing contribution to the production of power requirements in Australia.
– Following Senator Scott’s question, I desire to ask the Minister for National Development a further question relating to uranium. The Minister gave credit to taxation concessions tor encouraging the search for uranium. Could the Minister tell us what the concessions are, which are not enjoyed by other forms of business carried on in the areas in which the search for uranium is taking place?
– It is difficult to answer these questions about taxation off the cuff, but I can give a general answer. In the search for uranium, a uraniummining company enjoys the tax concessions that are available to all mining companies under the taxation acts.
– Does that include gold-mining?
– I shall come to that in a minute. The acts provide that expenditure on capital development can be written off from profits over the years. That concession is not available to ordinary business industrial enterprises. Uranium is in the same position as is gold in that profits derived from uranium-mining are quite taxfree in the hands of the recipients.
asked the Minister for Shipping and Transport, upon notice -
– The answers to the questions are as follows: - 1, 2 and 3. The vessels normally operated in the Australian coastal trades, now laid up because of lack of cargoes, are -
asked the Minister representing the Minister for Primary Industry, upon notice -
– The Minister for Primary Industry has supplied the following answers: -
Formal Motion for Adjournment
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - I have received from Senator Kennelly an intimation that he desires to move the adjournment of the Senate for the purpose of discussing a definite matter of public importance, namely -
The granting of television licences and matters incidental thereto.
Standing Order 14 provides that no business beyond what is of a formal character shall be entered upon before the AddressinReply to the Governor-General’s Opening Speech has been adopted. The motion proposed cannot be regarded as formal, and it is not possible to proceed further in connexion with it unless the Standing Orders are suspended. A motion, without notice, to suspend the Standing Orders would require an affirmative vote of an absolute majority of the Senate.
Suspension of Standing Orders
Motion (by Senator Kennelly) put -
That so much of the Standing Orders be suspended as would prevent consideration forthwith of the motion included in the notice read to the Senate by the President.
– There being present an absolute majority of the whole number of senators, and no dissentient voice, I declare the question resolved in the affirmative.
– I move -
That the Senate, at its rising, adjourn till to-morrow at 11.30 a.m.
– Is the motion supported? (More than the number of senators required by the Standing Orders having risen in their places) -
– First, I desire to thank honorable senators for giving me the opportunity to discuss this important matter. If there is one thing for which the Government deserves to be criticized, it is its action in handing out television licences to its friends contrary to the recommendation of the Australian. Broadcasting Control Board.
What are the facts? First, the Government rejected the board’s recommendations on the issuing of licences in Adelaide and Brisbane. Secondly, I believe that the Government illegally granted television licences to companies controlled directly or indirectly by Herald and Weekly Times Limited contrary to section 91 of the act, which reads -
A person shall not own, or be in a position to exercise control, either directly or indirectly, of more than -
one commercial television station within the Australian Capital Territory or within a radius of thirty miles from the General Post Office in the capital city of a State; or
two commercial television stations in Australia.
It is well for us to understand what are the important issues in this matter. First, should all the commercial television stations in this country be controlled by companies that are already controlling newspapers and radio stations? I do not think any one would say that that is a desirable state of affairs. Secondly, should control of television stations be local and independent of interstate enterprises? I believe that that is what is desired in the various States. Thirdly, should a limit be set on the number of television stations’ which one group can control? I do not think any one can object to that, because the act provides that that should happen. Fourthly, can this Government be allowed to break its own laws in order to pay off to its friends prior to an election?
The Government is indebted to the banks for support received in 1949. So far, the Government has not paid that debt, although it looks like paying it in the near future.
– That is a miserable innuendo.
– It is true, and the honorable senator knows it is true. He is one of those pious people who wants to see the unions compelled to obey the law as he understands it; but when it comes to the monopolies of this country, he, when he is here, rallies to their support.
– That is a fact. At least, I give credit to the newspaper organizations. They did not intend to wait until after the election for the pay-off. They had before them the experience of what the Government did for the banks. They demanded the pay-off before the election and got it. Let us proceed a little further.
– What about a bit of truth?
– 1 shall give you the truth, as you will note later on. Let us see who owns the existing television stations in this country. John Fairfax and -Sons Proprietary Limited, which controls the “ Sydney Morning Herald “, the “ Mirror “ and the “ Sun “, controls station ATN in Sydney. Herald and Weekly Times Limited, which produces the “ Herald “ and “ Sun “ in Melbourne, and which owns the two major Brisbane newspapers and the “ Advertiser “, the main newspaper in Adelaide, controls television station HSV in Melbourne. Electronic Industries Limited controls station GTV, Melbourne, having bought from the “ Age “ newspaper a large parcel of shares. When the licence was first issued, the “ Age “ held the major shareholding in that station. Then, Australian Consolidated Press Proprietary Limited, which publishes the “ Daily Telegraph “, controls 32 per cent, of the shares in station TCN, Sydney. That information is taken from paragraph 87 at page 18 of the Australian Broadcasting Control Board’s report.
Since those licences were issued, the Government has decided to grant six more. In Perth, the licence is to go to West Australian Newspapers Limited; in Hobart, to the Hobart “ Mercury “; and in Brisbane, one to the “ Courier-Mail “, which is a “ Herald “ subsidiary, and the other to the
Sydney Morning Herald “ in association with the “ Age “ and Electronic Industries Limited of Victoria. In Adelaide, one licence is to go to the “ Advertiser “ newspaper, which is another “ Herald “ subsidiary, and the other to the “ News “ newspaper.
That means that of a total of ten commercial television licences, all except one will be controlled by the newspaper interests. The same newspaper interests between them control sixteen radio stations. That concentration of the ownership of commercial television stations in the hands of newspaper organizations which already have great power to influence public opinion must be considered by all fair-minded people to be undesirable. When we examine the position further, we note that control over the television and radio stations that I have mentioned is, in the main, in the hands of two major groups. So the brain-washing process which operates in this country, particularly at election time, becomes almost absolute.
Let us consider what happened in regard to the issue of the licences. On 9th April, the board was instructed to hold an inquiry and to recommend on two matters: First, how many commercial television licences should be granted in Brisbane and Adelaide, and secondly, to what company or companies these licences should be granted from the existing applicants. That was the mandate given to the board by the responsible Minister, but what do we find? Even before the board commenced its hearing, powerful commercial groups, mainly those connected with newspaper interests, planned a campaign in order to obtain the licences, and a meeting was held on 23rd April in the office of the “ Sydney Morning Herald “, in Sydney.
Let us consider the galaxy of talent that attended this meeting. It included Mr. R. A. Henderson and Sir Lionel Hooke, representing the “ Sydney Morning Herald”, the Sydney “Sun”, the Sydney “ Mirror “ and Amalgamated Wireless (Australasia) Limited, the joint owners of television station ATN, Sydney; Sir John Williams and Messrs. Jones and Sherman, representing the “ Herald and Weekly Times “ interests which, as I have said, control the Melbourne “ Herald “ and “ Sun-News Pictorial “, the Brisbane “ Courier-Mail “ and “ Telegraph “ and the Adelaide “ Advertiser “, together with television station HSV of Melbourne; Mr. D. F. H. Packer and Mr. Keith Martin, representing the Sydney “ Telegraph “, and television station TCN, Sydney; Sir Arthur Warner, of Electronic Industries Limited, now the major shareholder in television station GTV, Melbourne; and Mr. Clive Ogilvy, a representative of the Macquarie Broadcasting Service Proprietary Limited.
Is it any wonder that a man with whom I was discussing this matter in Melbourne should say to me - facetiously, it is true - that in his opinion there was not a greater gathering of brigands in one spot at one time since the Kelly gang was surrounded in Victoria? Let us have a look at these people and the concentrated wealth that they represent. They and some 30 codirectors of the interests that they represent, between them sit on the boards of 66 public companies, including banks, shipping firms, collieries and financial houses. They completely dominate the fields of newspaper, newsprint, radio broadcasting, electronics, radio equipment and television ownership. The most remarkable thing is that of approximately 40 directors, no fewer than nine are knights. As I said in this chamber a little while ago, it is about time that all governments stopped abusing the granting of honours, which are supposedly granted by the Queen. It seems that an honour is granted when you sack a person, in order to make the sack a little easier to take. If it is not given for that reason, it is given because he has made a lot of money - and, of course, no query is ever raised as to how he made it. We find that the Melbourne “ Herald “ groups leads the field in this respect. It has four knights. Electronic Industries Proprietary Limited and the Melbourne “ Age “ have three between them, and the Sydney Morning Herald-A.W.A. group, two.
What was the purpose of the meeting in Sydney? lt was to agree on the best approach in order to gain control of the licence or licences to be issued in Brisbane. As they stated it was to be an “ all for one and one for all “ approach. The meeting was to ensure that if only one licence was to be granted, the different groups would share in it to their mutual advantage, and to create an Australia-wide television network. At the conclusion of the board’s report on the matter of the licences for Brisbane and Adelaide, it published a number of letters that were written mainly by Williams, of the Melbourne “ Herald “, on the one hand, and Ogilvy, of the Macquarie Broadcasting Service Proprietary Limited, on the other. I suggest that no one could help but be enthralled by the air of suspicion and distrust that runs through these letters. Here are some of the more interesting extracts. A letter from Ogilvy to Williams, dated 10th May, 1957, stated-
Am hopeful that we can arrive at a just and equitable “ one-for-all, all-for-one “ approach.
On 10th July, 1957, Ogilvy wrote to McLachlan, stating -
Take it that there is still no word from Warner or Williams. Unless there is some concrete sign of “ all-ness “ or “ one-ness “, must conclude that the “ all-for-one and one-for-all “ approach at Brisbane has failed.
Then Williams wrote to Ogilvy on 25th February, 1958 -
I am wondering if we should have another talk soon. The main thing to consider is how we shall express to the Board our decision to come together and/or work together if only one commercial licence comes up in Brisbane.
That was followed by another revelation. Ogilvy wrote to Williams on 26th February -
I cannot follow the closing paragraph of your letter. We are preparing our case for a licence and naturally hoping for success.
Williams answered on 27th -
Thank you for your letter. As far as one applicant can wish another success with any high degree of sincerity, I would say that we wish you success with your Queensland application.
On 4th March, 1958, Ogilvy wrote to Williams again -
Thank you for your letter of the 27th February and with the same degree of sincerity, we wish your application success.
Is it any wonder that when the brigands fall out we find the present state of affairs?
The Government has upset the recommendation of the board, because the board said in effect that only one television licence should be issued in Adelaide and one in Brisbane. If one considers the respective populations of the cities, he will see why the board, having heard all the relevant evidence - and some irrelevant evidence, no doubt - came to that conclusion. But, of course, the elections were approaching, and one can understand why this Government said to the board, “ We will reject your recommendations “. And let me say, this is the first time that the board’s recommendations have been rejected. The Government instructed the board to grant two licences in Brisbane and Adelaide. The board stated that it believed that fresh applications should be called for, but the Government instructed the board to grant two licences from the original applicants.
As a result, in Brisbane one licence was granted to Queensland Television Limited, the main shareholders in which are the “Sydney Morning Herald” and GTV9, Victoria. The second licence went to Brisbane Television Limited, the main shareholder in which is Herald and Weekly Times Limited through the Queensland newspapers that I have mentioned. In Adelaide, one licence went to Southern Television Corporation Limited, the main shareholder in which is the Adelaide “ News “. The second one went to Television Broadcasters Limited, the main shareholder in which is Herald and Weekly Times Limited of Melbourne because it, in turn, controls the Adelaide “ Advertiser “.
In a supplementary report to the PostmasterGeneral, the board stated - . . must accordingly set aside the desirability of securing the operation of television stations by independent local companies and the question of newspaper control of television stations, upon which we based the recommendations in our previous report. These considerations now seem to be inapplicable in view of the Government’s decision.
What is the position of the Melbourne “ Herald “ which, as every one knows, now has control of three television stations in this nation, although the act specifically lays it down-
– That is wrong.
– It is right. Why did not Senator Scott argue with the board? Section 91 of the Broadcasting and Television Act 1956 provides -
A person shall not own, or be in a position to exercise control, either directly or indirectly, of more than two commercial television stations in Australia.
This was the board’s comment -
The question arises whether the Herald and Weekly Times, in addition to controlling HSV (Melbourne), might be in a position to exercise control of Brisbane TV Ltd. and Television Broadcasters Ltd. of Adelaide through its shareholdings in the Queensland press and the Adelaide “ Advertiser “.
The board, in its report, based its findings on its own experience alone. But in the light of Gower’s “ Principles of Modern Company Law “ and E. L. Wheelwright’s “ Ownership and Control of Australian Companies “, it stated -
We have considerable doubt as to whether, in view of Section 91, the Herald and Weekly Times should be permitted to acquire such a substantial interest in two additional TV stations.
After that deliberate statement by the board, this Government handed out the licences. Is it any wonder that Williams of the “ Herald “ referred in one of his letters, included in the board’s report, to “ extracting promises from the Government “? All that the opponents of Labour think about at election time is the handing out of things such as television licences to their friends. That happened in 1949, when certain promises were made to the banks. The Government then had the banks in its pocket.
– What is Labour’s policy?
– I shall talk to the honorable senator later about that. All I am saying at the moment is that it is no wonder that Williams said, in effect, that he could extract promises from this Government. It is true that the “ Herald “ received the opinion of Sir Garfield Barwick on the matter. He was then AttorneyGeneralelect. He knew that he was going to get that job. Indeed, he would not have come into the Parliament unless he was assured of getting it. I was sorry for the Minister who held the job. Sir Garfield Barwick said that even if the “ Herald “ was exercising control over the three television stations, it was not legally in a position to do so. But the board stated, in effect, in paragraph 127 of its report -
If Parliament had not intended to prohibit the exercise of indirect de facto control, it would not have framed the Act as it did.
The limitation of time hinders the presentation of a case like the one I am submitting, but I should just like to say that the fact is that this Government, for the first time in history, refused the board’s recommendation. What was the reason for that? The reason is that the Government wanted to hand out television licences to its friends. The opponents of Labour knew that an advantage would accrue to them in the pending election. We have heard a lot about brainwashing in other countries, which is to be deplored. Television provides an avenue of propaganda through which one man may influence many. We know that there is not an employee of the Melbourne “ Herald “ who would not jump if Williams told him to jump. That is well known by every one who lives in Melbourne.
– Has he ever told you to jump?
– No, not me. All
I am saying is that we have had to take from the press and the main radio stations of this nation the views of two major corporations. That is now to apply to television, Allegedly, brainwashing takes place in other countries; I have not been to such countries to see it, but if it does take place I deplore it. I am certain that there is no country to-day other than Australia where all the avenues of propaganda are in so few hands. That has come about because this Government has been prepared to hand out favours to its friends.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! The honorable senator’s time has expired.
[4.15]. - I have listened with a great deal of interest to Senator Kennelly’s remarks regarding television licences and 1 would remind him that, in accordance with the provisions of the Broadcasting and Television Act 1942-1956, a certain procedure must be followed before a television licence is granted. The Government has followed that procedure in all cases. Up to the present ten commercial television licences have been issued - two in Sydney, two in Melbourne, two in Brisbane, two in Adelaide, one in Perth and one in Hobart. The act provides that a licence may be granted by the responsible Minister only after he has invited applications in the Gazette and referred all applications received to the Australian Broadcasting Control Board for its recommendation. The board is obliged to hold a public inquiry into the applications before submitting any recommendaion to the Minister. Nothing could be fairer than that. The Government has not adopted any hole-in-corner methods; indeed, all facts have been disclosed to the public in what have been elaborate, lengthy and hotly contested public hearings. Official transcripts have been made of the proceedings before the board and these, together with the reports subsequently submitted by the board, which have been published, are available to the public. In all cases the licences have been granted to the applicants recommended by the board. I emphasize to honorable senators that the Government and the board can deal only with the applications that are received in response to the invitation of the Minister and, pursuant to the provisions of the act, such applications cannot be redrafted or replaced by amended applications.
At this stage it is appropriate to refer to the board’s report in connexion with the granting of licences for Brisbane and Adelaide so that the facts may bo clearly understood at the outset. The board recommended the granting of only one commercial licence in each of those cities. After consideration, the Government decided that two commercial licences should bc granted and, accordingly, the board was asked to submit a further recommendation as to the additional licensees. The original recommendation of the board was not rejected by the Government. When all is said and done, the Government initiated the move whereby applications were called in the first instance and, therefore, the Government had theright to ask the board for its further recommendation. The Government believed that the people in the two cities concerned wereentitled to a choice of two commercial television stations. I agree with the Government’s decision. Being a Queenslander, and living in Brisbane for lengthy periods, I am sure I voice the feelings of the majority of the people of that city when I commend the Government for the action it has taken.
The allegation has been made that the Government did not accept the board’sreport because it wished to grant licences to monopoly newspaper interests. The fact isthat the Government, acting on the experience gained in Sydney and Melbourne, which indicated that competition betweenthe commercial stations had proved beneficial to the public, believed that the viewers in Brisbane and Adelaide were entitled to the choice of a variety of programmes. After all, the viewers pay a considerablesum of money for their television receivers. With the additional commercial stations, they will have a choice of three programmesinstead of the two.
The Government also believed that as many outlets as possible should be provided for the expression of different points of view and for the expansion of the market available for Australian film productions. The Government is particularly concerned to ensure that the opportunities existing in. he television media for the building up of
Australian film productions, which will use Australian talent, should be availed of. The cost of production of such films in Australia is high in comparison with the cost of the imported product, largely because of the limited market available. Any increase in the number of stations must assist in building up the Australian film industry provided, of course, that such stations have the financial capacity to succeed. I shall deal with that aspect in a moment.
I firmly believe that the Government’s action should be applauded by honorable senators opposite who have often stressed the need for developing in Australia our potential Australian talent by means of films used in television programmes.
– Actors Equity does not think the Government is doing that.
– At least more avenues will be open for the use of Australian talent. The board’s recommendations seem to be based on the commendable desire to ensure that the stations operate profitably. In Brisbane and in Adelaide, however, applicants were available and willing to undertake the provisional services with the full knowledge of any shortcomings or disadvantages which might stem from two commercial stations competing with each other. Those applicants, apparently, did not foresee any great risk of loss in running their stations. They were prepared to undertake the job.
In these circumstances, the Government should not deny to the people of Brisbane and Adelaide the advantage to be derived from the choice of two commercial television stations. In any case, paragraph 138 of the board’s report indicates that the board, apparently, thought that even if it called for other applications, none would be forthcoming. Having made its decision, the Government referred the matter back to the board for its recommendation as to who should be granted licences. The board submitted a further report, which the Government accepted.
The applicants for licences in Brisbane were Queensland Television Limited, Brisbane Television Limited, and Australian Consolidated Press Limited, on behalf of a company to be formed. The applicants in Adelaide were Australian Consolidated Press Limited, on behalf of a company to be formed, Southern Television Corporation Limited and Television Broadcasters Limited. It will be noted that there is some newspaper content in each of those applicants. It is true that the shareholders in all the applicant companies included newspapers to a greater or lesser extent, and it was therefore inevitable that companies in which newspapers were shareholders should be granted licences. There were no other applicants.
– There were other newspapers.
– I am speaking now of newspapers as a whole. It should be quite clear that the Government does not wish to see either monopoly control or newspaper control of these stations.
– The board does not, but the Government does.
– That is not so. The Government has stated emphatically that it does not want either monopoly control or newspaper control; and, in fact, there is no monopoly control. It is appropriate, therefore, to look at the facts of the existing situation.
One station to which the Deputy Leader of the Opposition (Senator Kennelly) referred was ATN in Sydney. He also spoke of HSV in Melbourne. Both these stations are controlled by newspapers, but I point out that newspapers are entitled to control one station in a capital city and one in any other part of Australia.
– What about the other ones?
– If I have time, I will deal with them. The Opposition admits that it is quite fair for station HSV to be controlled by a newspaper and for ATN to be controlled by a newspaper.
– Under the act, a newspaper can have only two stations.
– That is quite right. In respect of the other two stations in those cities, Australian newspaper companies have respectively 32 per cent, and 18 per cent, of the shareholdings. In Brisbane and Adelaide, only one of the four stations is actually controlled by a newspaper. Each of the other three Australian newspapers have interests ranging from 28 per cent, to 40 per cent. One station that is controlled by a newspaper is NWS in Adelaide. In Perth and Hobart, licences were granted to companies in which the greatly respected independent daily newspapers have interests. The holdings in Hobart amount to 12£ per cent, while in Perth they will be approximately 50 per cent, when options to take up shares are exercised by present note-holders.
In order to convey a true picture of the control position in the Brisbane and Adelaide companies, it is necessary that 1 remind honorable senators that the shareholding by the public in Queensland Television Limited amounts to £350,000 out of a total capital of £756,000. In Brisbane T.V. Limited, 700,000 out of a total issue of 1,400,000 10s. shares will be held by the public. It will be seen that the public will hold the majority of the shares in that case. In the two Adelaide companies’, the initial public shareholding of 30 per cent, will be increased later.
Reverting to Queensland, seven of the ten directors of Queensland Television Limited, including the chairman, are drawn from Brisbane, and three from outside the State. In other words, seven out of the ten directors live in Queensland, most of them close :tO Brisbane. In Adelaide, four of the directors of Southern Television Corporation Limited are residents of Adelaide while five of the seven present directors of Television Broadcasters Limited are residents of Adelaide. All the directors of Television Limited are residents of Perth while all the directors of the Tasmanian station are residents of Hobart.
I should like now to put before the Senate the principles followed by the board in determining to whom licences should “be granted. Here I point out that the Deputy Leader of the Opposition read only -paragraph 3 of the board’s supplementary report. If he had read further, he would have seen the guiding principles followed “by the board when considering applications. Those guiding principles are - Good character and high reputation, directors and execu”tive officers with a proper appreciation of the responsibilities imposed by a licence and willingness to comply with the conditions of the licence, genuine intention to commence on a high standard, even at financial loss, financial stability, a good record in allied fields, and ability to provide a satisfactory service.
The board goes on to say in its report that in the course of its inquiry into the applications made for licences in Brisbane and Adelaide it scrutinized the applications for the purpose of ascertaining whether the applicants possessed those essential qualifications. The board added that, on the evidence adduced, it did not question that each of the applicants would, if granted a licence, provide a service which would meet the standard the board had laid down pursuant to the provisions of the Broadcasting and Television Act 1942-1956. The board also stated that it had no reason to doubt that the licensees of commercial television stations would observe the provisions of the act in the technical operation of their stations and in the provision of satisfactory programmes. Therefore, the board must have been quite satisfied that in choosing the second licence holder it was choosing the best company available. The supplementary report continues -
With three applicants in each of the cities apparently competent to provide a service, it is necessary, in the Board’s opinion, to consider the proposed constitution of each of the applicants and their standing in the areas which they desire to serve.
Honorable senators may be interested to learn the details of the holdings in Queensland Television Limited. The capital investment by the general public amounts to £350,000, other holdings being as follows: - “ Truth and Sportsman “ Limited, £125,000 or 16.5 per cent.; Amalgamated Television Services Proprietary Limited, £125,000 or 16.5 per cent.; N.B.C. International Limited, £75,000 or 10 per cent.; Associated Television Limited, £75,000 or 10 per cent. It is pleasing to note that, of the total capital, shares to the value of £350,000 are held by the public. In the case of Brisbane T.V. Limited, 700,000 10s. shares, or 50 per cent, of the whole, will be held by the public. When shares in Queensland Television Limited were offered the issue was oversubscribed immediately.
I have given honorable senators two examples. I have not time to deal with applicants in Adelaide and elsewhere. I know these two examples very well indeed. I know the directors, and I am sure that this week, when Brisbane T.V. Limited offers 700,000 shares to the general public, the offer will be over-subscribed.
In considering the extent of newspaper companies’ interest in television licences, we must bear in mind the fact that the cost of establishing metropolitan television stations is very great. 1 think that every one will agree with that contention. In Sydney and Melbourne, the cost was found to be about £1,000,000 for each station. The stations in the other mainland capital cities will require initial capital of about £700,000. It follows that only companies of substance are in a position to undertake the establishment of television stations. Modern newspapers are necessarily very large organizations, with substantial capital, and hence they are in a position to invest in companies holding television licences.
An analysis of the applications for licences in the capital cities will disclose that if newspaper organizations were entirely eliminated from consideration the most substantial elements of the application would often disappear. If any one is investing his money he wants to know who is going to be at the top of the organization in which he invests. He wants some one there who knows how to run such an organization. In Melbourne and Sydney newspaper organizations have shown that they do know how to run television stations and make a success of such ventures. There is no doubt that newspaper organizations will make a success of television in Brisbane and Adelaide also.
It will be noted that the public hold the greater proportion of the shares in most of the companies to which licences have been granted. This is a most desirable state of affairs. It is more than likely that this result would not have been achieved if the stability and substance provided by the contributing newspaper organizations had been eliminated.
It is important that the requirements of the law should be kept prominently in mind in considering the matters that have been raised. 1 think that Senator Kennelly brought that fact out. The Broadcasting and Television Act 1942-1946 provides, as the Deputy Leader of the Opposition has mentioned, that no person or company may own, or be in a position to exercise, either directly or indirectly, control over more than two commercial television stations in Australia. This provision was inserted in the act to prevent concentration of ownership that might be contrary to the public interest, and I can truthfully say to the Senate, and to the Opposition, that the law in regard to these television stations has been observed completely.
– That is not what the board thinks.
Government has the best legal advice in Australia at its command.
– The board gave that decision without seeking authority.
– The honorable senator is quoting out of context. Leaving aside altogether the considerations to which I have referred, it is relevant to remind the Senate that in each capital city there will be operating, in addition to two commercial stations, a national television station. This will ensure the provision of an alternative programme, independent news service and facilities for political and controversial broadcasts. It should allay any fears that may be held that the whole television service has been thrown into the hands of big business. We have, moreover, provided in the legislation that during election campaigns commercial stations will give reasonable opportunity to all parties represented in Parliament to appear. The recent election campaign demonstrated the effectiveness of that law.
It is appropriate to remind those who accuse the Government of handing television over to the press, and of establishing monopolies, that it was this Government which established the national television service - just as it was a non-Labour Government which, in 1929, established the national broadcasting service. It is also necessary to point out to critics that it was this Government which, in 1956, inserted in the statute the provision prohibiting any person from being in a position to control, directly or indirectly, more than two television stations in the Commonwealth. It was a non-Labour Government which, in 1935, imposed by regulation a limitation upon the number of broadcasting stations that could be controlled by any person - a provision that was unanimously endorsed by the Gibson committee of 1942 and incorporated in the Broadcasting Act of that year.
My time has expired, but from what I have said it will be seen that the Government has implemented the recommendations- of the Australian Broadcasting Control Board and has acted in the best interests of the community by granting licences to those qualified to give the best and most satisfactory service to the community.
– The Minister for Repatriation (Senator Sir Walter Cooper), in claiming that the Government has given effect to the recommendations of the Australian Broadcasting Control Board, has most grievously misrepresented the position, because the recommendation which the Government favoured was given only after it had rejected every recommendation of the board in the first instance - that there should be one licence, that fresh applications should be called, and that newspaper influence should not be extended through these stations. The Minister says that the recommendations of the board were accepted. The recommendations that were accepted were made after the Board’s independent views had been expressed and rejected by the Government, and the Government had directed the Board what to do. It is quite wrong for the Minister to so misrepresent the position.
We are very greatly indebted to the Australian Broadcasting Control Board for the fact that it has made a most complete survey of the interlocking of newspaper, radio and television activities. In its 1955 report, the board showed that newspapers owned 14 radio stations in Australia, had a dominating influence in 43 stations out of 106, owned a station in each of four capital cities and had a very substantial interest in a station in each of the other two. The board very properly drew attention to the danger to the public interest in allowing the means of mass communication to be centred in one set of hands.
In its latest report, the board set out two principles. I shall read from the report of December, covering the period to the end of June, 1958. On page 24 of the report, the board said -
The Board’s reasons for these recommendations were explained at length in its report: they may be briefly summarized as follows: -
the main issue which arose at the inquiry was whether expansion of the interests of groups already powerful in the fields of mass communications is to be accepted or whether, in the public interest, the local ownership- 1 underline those words - of television stations and the independence of licensees is the objective to be achieved;
it was desirable to prevent any trend towards the concentration of the ownership or control of commercial television stations by such groups.
A number of other elements are mentioned, but those are the two great principles that the board laid down, lt wanted television stations to be independent and, as far as possible, to be locally owned.
– How were those principles applied in its recommendation? Who did it recommend should get licences in Brisbane and Adelaide?
– It recommended in the first instance that none of the three applicants in the one case and none of the four in the other case should get them. The board suggested that fresh applications should be called. It pilloried each of the applicants.
Let me indicate what the first report of the board did. It drew attention to the position in America and the great danger that is seen there by concentrating power in the hands of newspapers - the means of mass communication. On page 23 of the report, in paragraph 105, the board stated -
As we have said, it may be that in certain circumstances, networks can be beneficial to the development of Australian television. We are, however, obliged to draw attention to the fact that the operations of American television networks have in recent years been several times the subject of investigation by a Committee of the U.S. Senate, and are at present the subject of an inquiry by the Federal Communications Commission. Such documents relating to these inquiries as are available to us suggest the need for the greatest vigilance to be observed over the development of network practices in this country in order to preserve the independence of stations throughout the Commonwealth and to limit the already very substantial influence of small groups over Australian media of mass communications.
I draw attention to that position very pointedly. The board said in its second report that the actual evidence that was given before it showed that the applicants were concerned about getting control. They were already interested in television licences in Melbourne and in Sydney. On page 6 of the board’s second report we read -
Apart from experience gained by the Board in the administration of the Act, some of the evidence which was submitted to us in the course of this inquiry concerning the influence of certain minority shareholders in companies which are parties to applications, leaves (he Board in no doubt that de facto control can certainly be exercised by a shareholder who has a substantial, though a minority, shareholding in a company. 1 have no doubt that the board had in mind the comments that were made by several of the tycoons who came before it. I quote now from page 28 of the first report, on the question whether a minority shareholder, holding a block of shares, can in fact exercise control. The board put the question to Mr. Packer of the Sydney “Daily Telegraph “. Mr. Packer replied -
You cannot really count upon control unless you have 51 per cent.
However, he told the board that only two of the 4,000 public shareholders in Television Corporation, Limited who owned 40 per cent, of the shares were present at the last general meeting of the company. The real truth is that a block vote in a company is organized. The public’s voting is utterly disorganized, is inarticulate and, above all, is disinterested. Those who are concerned with the promotion of a company, with the setting up of provisional directors and with the control of machinery for proxy voting stay there almost immovable; they are never moved. There is no need for newspapers which want control of television stations to have 49 per cent, or 51 per cent, of the shares. An interest of 10 per cent, or 15 per cent., together with the interest of perhaps another group of the same type, will enable them, with a minority of the shares, but welded together as a solid, always articulate block, to achieve any purpose they want. Two of the tycoons indicated just what does happen.
The board put all these considerations before the Government. The evidence befor the board showed that in each case the applicant to whom the Government has now directed a licence to be given was in fact, although a minority shareholder, in de facto control of the company - the very thing that it ought to be agreed should be avoided. In that same report the board put to the Government a memorandum that was drawn up after the conference in April, 1957, before even applications had been called, when those in charge of television stations in Melbourne and Sydney got together to carve up the territory in Brisbane and Adelaide.
– How did the document come to be produced?
– It was produced before the board. The board got it, along with other interesting correspondence which Senator Kennelly produced to the Senate. The board discovered the position and brought it out. This is the memorandum prepared by one of those in attendance at the conference. It reads -
It was also recognized that the two T.V. groups which had been originated by the establishment of the present commercial television stations in Sydney and Melbourne were obviously beginning on a network operation which would extend throughout Australia as other stations were opened up in cities other than Sydney and Melbourne.
J now turn to another one of the applicants in Queensland. We find that a condition of “ Truth and Sportsman Ltd.” - another newspaper - making a substantial financial contribution was that it was to have the right to provide an exclusive news service through that particular station. The board drew attention to the fact, and in doing so forced the company out of that position. Where would be trie independence of a television station obliged to take its news - or its views, as Senator Kennelly put it - from one newspaper? Surely the Senate must see the danger of a small group of men in this country, of the class of newspaper tycoons, having effective control of television. Those are the people who make the most arrogant assumption of omniscience in relation, to every subject under the sun, and who regularly syndicate their leading articles from one end of Australia to the other. They now have effective control of radio. In every case, this Government has given the television licence to a company sponsored by a newspaper. A while ago, the Minister for Repatriation said, “ Of course, the public wants to know who is going to run it - who is going to control it “. There is the very admission of the charge that we make - that is, that these newspapers will have effective control.
I know the way it works. I recall that a former Premier of Tasmania, Mr. Ogilvie, after touring the world in 1938, saw a war looming and wrote a thesis on the defence of Australia. I suggested to him that it was good enough to be sent around Australia in a nation-wide broadcast. He said, “ How can I arrange that?” I said, “ Get in touch with one man. Sir Keith Murdoch, and he will arrange it, if he is willing to do so.” That was done. That one newspaper tycoon, controlling in effect the whole radio network, said “Yes”, and the broadcast was made nation wide. He could have said “ No “. That is the way it is done.
There will be one mind, or two minds, directing the whole flow of news and propaganda in this country. That is the great danger to democracy. When the voice of minorities is stilled, when the people are given only one slant of things and the minority view is not expressed, democracy is on the way out. That is the great disservice that this kind of grant of licence does. The Minister had all these matters before him in detail.
– There did not seem to be much danger of unanimity at that conference to which the honorable senator referred.
– The Minister heard the story about that. They were all agreed upon carving up the duck, and in the end they shared it. They got the lot. The newspapers of Australia are now in possession of the most powerful medium - the new medium of television. This country will rue the day that this Government allowed such a position to develop. It is most unfortunate that it should have been allowed to develop.
I recall that after the referendum on the Communist Party Dissolution Bill a newspaper tycoon who had campaigned strenuously over the radio and through the press was sitting dejectedly in his office. He has passed on, so 1 shall not mention his name. It is said that a bright young executive came in and said, “ Good morning. What a lovely morning!” He was growled back at and asked, “ What is lovely about it” The young fellow said, “ i know what is worrying you. It is the outcome of the referendum. You reallythought you had it all sewn up. You published pictorials in the morning for the people who can see but cannot read, you published the afternoon press for the people who can read but cannot think, but what you overlooked was that the people can still smell.” And that was the truth. Now it is carried one stage further, and the people who can think have not time to think because they are so busy watching the television screen to see whether by any chance anything worth while looking at will be televised. The whole thing is being more and more sewn up.
I say quite frankly that the way in which the board was insulted and thrown out of the room was a most outrageous, highhanded, unjust and unfair act on the part of this Government. The Government had an opportunity to see how the public rushed for shares when it got a chance. I understand that the capital of one company was subscribed in half an hour. Why was not the public allowed in? I have asked this question before: Why did not the Government, with the good advice of the Broadcasting Control Board, which pointed out that it was desirable to have these stations owned locally and independent, sponsor companies? It is quite clear that there would have been no difficulty about getting all the money required. But the Minister for Repatriation gave the show away when he said that the people wanted to see who was to run these stations. The people who will run them are the newspapers, and in that lies a very great danger.
The ACTING DEPUTY PRESIDENT (Senator Wood). - Order! The honorable senator’s time has expired.
Senator Sir NEIL O’SULLIVAN (Queensland) [4.59]. - I think we ought to get the record straight in relation to precisely what the Opposition is aiming at. I note that the Leader of the Opposition (Senator McKenna) did not emphasize the question of control very heavily. He probably has recollections of a speech he made on a former occasion when Senator Gorton proposed a motion. The Bartholomew group was endeavouring to get control, I think, of quite a large number of Australian broadcasting stations. Senator Gorton moved -
That, in the opinion of the Senate, it is undesirable that any person not an Australian should have any substantial measure of ownership or control over any Australian commercial broadcasting station, whether such ownership or control be exercisable directly or indirectly.
The circumstances of the matter were debated. Senator Gorton concluded his speech with the following words -
Do honorable senators opposite favour control of the Australian commercial broadcasting stations by a foreign country? If so, what countries do they think should control them and how many stations should they control? If honorable senators would prefer to see this medium of public opinion reserved to Australians, I hope they will support this motion.
The motion was agreed to, but only after a division.
Senator McKenna’s concluding words during that debate may ring a gong. He said -
Senator Gorton’s motion was merely a cover for an attack on a group of British investors whose only possible sin is that they express through a newspaper that they control a viewpoint that is opposed to that of the Government. For that reason the Opposition opposes the motion.
I wonder what is the reason for this sudden attack on the Government? The report of the Australian Broadcasting Control Board was tabled in September, 1958. A lot of water has flowed under the bridge since then. Could it not be that the Opposition is having a little vendetta of its own against the press and television stations?
On the factual side, let us see what the term “ control “ means. It could mean that a man with a dazzling personality such as that of the Leader of the Opposition and of the Deputy Leader of the Opposition (Senator Kennelly) could control people by influencing their goodwill. But the Leader of the Opposition knows as well as any one else in this chamber that control in the context of section 51 of the act means control of more than 50 per cent, of the shareholding. The honorable senator referred to what Mr. Packer said could happen and to the fact that sometimes only a few persons attended meetings. But he did not read the whole of the relevant paragraph. Mr. Packer was asked -
Would it be your general experience in a company constituted such as Television Corporation Ltd. that a shareholder with 31.21 per cent. - or some such figure - of the total shareholding, and with a representative as Chairman of Directors is, in general, able to direct the day-to-day policy and business affairs of the company.
He replied -
Yes, as long as the shareholders are prepared to let him do so.
The report of the Broadcasting Control Board indicates that he went on to say -
You cannot really count upon control unless you have 51 per cent.
Of course, 51 per cent, is not necessary; it is needful to have only 50 per cent. plus.
I shall not have time to go through the shareholdings of both companies in Bisbane, but they are much of a muchness, and I know something about Brisbane Television Limited. The facts of this matter are referred to on pages 8 and 19 of the board’s report. The holding company that owns the “ Courier-Mail “ and the “ Telegraph “ is Queensland Press Limited. It will have 28.28 per cent, of the shares. In Queensland Press Limited, the Herald and Weekly Times Limited has 37£ per cent, of the interest - not a controlling interest. Thirty-three and one-third per cent, of the shares in Queensland Press Limited are held by more than 4,000 people, mostly Queenslanders, so that the interest of the Melbourne “ Herald “, which seems to be the subject of the attack to-day, in Brisbane Television Limited is less than 11 per cent. It is 37i per cent, of 28.28 per cent.
It is quite false, Mr. President, for the Opposition to say that the Herald and Weekly Times Limited has a controlling interest in a company in which its entire interest is 1 1 per cent, at the most. Senator McKenna said that it was a pity that the members of the public were not given an opportunity to come in and apply for shares. So far as Brisbane Television Limited is concerned, 50 per cent, of the shares allotted were reserved for the public and were taken up by the public. Members of the public form the largest individual group of shareholders. I do not wish to weary the Senate with a lot of detail, and I point out that the shareholdings are set out on page 19 of the report. Unfortunately, they were completely ignored by Senator Kennelly in his little personal vendetta with, the press. I do not know the reasons for that vendetta, but I am sorry that it caused the honorable senator to veer away from the truth. Had he consulted his leader, I am sure that he would have been informed that “ control “ means 50 per cent .-plus of the shares of a company.
Perhaps Senator Kennelly was referring to indirect control. This matter is very simply explained. If I have 10 per cent, of the shares in a company and I own the whole of the shares in another company which has 50 per cent, of the shares in the first company, I directly control 1 0 per cent, and indirectly control 50 per cent, making a total of 60 per cent. Therefore, directly and indirectly, I would have control of the company, because I could control the voting power; but just because certain business executives are in the saddle, or in the governing chairs of certain companies, without actual control of the voting rights, that does not place them legally in control in the sense that they can force their wish and will upon the operations of the company, regardless of the wishes of the majority of shareholders.
– The honorable senator cannot agree with what the board says.
I agree entirely with what the board says on the facts. I commend its report as the result of a lot of very hard and earnest work. Academically, it is rather refreshing; but when the board embarks into the realms of law, economics and politics, I think it goes a long way astray. Its comments on the law and the conclusions it draws are not in accordance with the authorities, as I understand them, and as leading counsel understand them, for the reason that I have just mentioned - that de facto control does not necessarily mean de jure control, or control, as I have indicated, by the majority of shareholders entitled to vote. That is the control contemplated by section 91 of the act.
I am not disparaging the report, by any means. As I have said, it is the result of a lot of hard work, earnest thought and consideration. Paragraph 135 states -
The Board is of the opinion that the granting of two licences in Brisbane and Adelaide at the present time would be inconsistent with the expressed policy of the Government in relation to the gradual development of the television services and the local ownership and control of stations.
This board was not set up to interpret Government policy, and I think that it went a long way astray in placing its interpretation on the policy of the Government. That policy is to give to the public the best service available at the most reasonable price. The recommendations of the board, mistakenly thinking in terms of Government policy, seem to indicate that we should create a monopoly. We are not a monopolistic government. We are a free enterprise government.
The board is very naive when it enters the realms of economics. It suggests that applications be waived and fresh applications invited, with the idea of accepting only one application. The successful applicant would get a flying start. Observation would be kept on it from year to year, and in due course, when the applicant company had established itself and the time was ripe, consideration would be given to the granting of another licence. How unreal that would be! To give one company a flying start and to create a monopoly from year to year for an indefinite period, with no choice of service for the public and no choice of service for the advertisers, would not be free competition as we understand it. It would be a monopoly. That is a very unreal approach.
The Government is not rejecting any of the findings of fact by the board. It has not agreed with the board’s interpretation of Government policy. Apparently, when the board recommended that fresh applications be invited for one licence for a commercial television station in Brisbane and one in Adelaide, it thought that that was in keeping with Government policy, but nothing is more removed from Government policy than the creation of a monopoly. The Government wants to serve the public as best it can, by giving a choice to the advertisers, a choice to the listeners and a choice to the public, with fair competition between two contenders for an activity which, for some years to come, may be very troubled and unprofitable. The Government is interested only in the welfare of the public.
I suggest, Mr. President, that Senator Kennelly and Senator McKenna have another look at “ Hansard “, volume 215, of 28th November, 1951. If they do, they will find themselves, if not consistent, at least very versatile.
– While I was listening to Senator Sir Neil O’sullivan, who is no doubt finding it comfortable on the back bench of the Senate chamber, I recalled a story that I was once told about a very fluent Negro preacher. He was asked by one of his flock why he was so successful at preaching and he replied that, first of all, he told his audience what he intended to speak about; secondly, he spoke about that subject; and thirdly, he then told his audience what he had been speaking about. If it were possible, Mr. President, I suggest that we might allocate Senator Sir Neil O’sullivan a further quarter of an hour or so to inform the Senate of exactly what he was speaking about a while ago.
The subject under discussion is the control of mass communications in Australia. We admit freely that we are now in an era of mass communication. It is on another point that we are divided from honorable senators on the Government side. We say that the control of mass communication is vested in the hands of certain companies and, if it is so vested, it is not in the interests of the welfare of the Australian people. Senator Scott is interjecting again. I say to him, that that is our case; if he has an answer to it I invite him to offer his answer. He has to convince not only myself on that point, because our population has now reached .10,000,000 people.
– It is over 10,000,000.
– I am glad to hear that, because more people will have to be convinced. We have been told - and this is our case - that the control of mass communications in the Commonwealth is vested in the hands of some public companies. We know that the public companies that have been referred to have controlling interests in. the press of Australia and that they also operate radio stations and, to some extent, motion pictures. At this stage, we are entitled to ask ourselves why these particular companies are so interested in mass communication to-day. How is it that the press - what is happening in Australia has happened overseas, too - is so interested in mass communications to-day? Let us take a glimpse at the past and follow the history of the press. It is a long way back to the time when the Caxton press was introduced in 1477 and the Italian Alldis press was introduced in 1490. Each of those presses was invented and operated by one man. The public company, of course, did not come into operation for many years afterwards. It is no wonder, Mr. President, that parallel with the development towards mass communication there has been a development of public companies and technical, industrial, and other forms of development. Incidentally, of course, in order to promote the interests of public companies, the great industrial undertakings, advertising is necessary. Therefore, advertising is part and parcel of the life of mass communication today. I shall have something more to say on that particular point later.
We find, looking at the newspaper world, that the first English newspaper was published back in the year 1665. It was called the “ London Gazette “. lt was published by one man, and it. was just a sheet or so in those days, but it served the purpose of informing curious people what was going on. It is true that emphasis was given to sensational news items, including murders, and that practice has been carried on for the past three centuries. The press news is based on something sensational, preferably a murder or two. Other forms of communication, of course, have been introduced. The first telegraph message by morse was introduced in 1844, and the laying of the first trans-Atlantic cable occurred in 1858. These were means of communicating direct with various people. The first wireless transmission by Marconi occurred in 1 895, 64 years ago. Since then, of course, radio has developed out of bounds. The first regular broadcasting occurred actually in 1920, and1 talking pictures also became a reality in that year. Some of my listeners can no doubt recall the motion picture “ The Jazz Singer “ which was screened in 1927. That was really the introduction of talking pictures. We know the value of the motion picture as a means of public communication. The first commercial television was undertaken in the year 1941, and so we have reached this stage to-day with these things in mind.
I have mentioned’ these facts because they have developed from one to the other and now we have, as was explained a short while ago, news companies interested in the press and the radio also controlling the television world in Australia. There is no need to go further to find out why that is so. They have moved from one sphere to the other. Some mention was made a short while ago of the commission that was appointed by the Postmaster-General to investigate the matter of television licences in the cities of Brisbane and Adelaide. I quote now from the report of the commission in 1958, which refers particularly to what the Postmaster-General had to say about the report.
– Do you know that you have traversed over 200 years in five minutes?
– Yes, but Senator Scott would not understand that. The other night.
I spoke about borers. I have no doubt that if I released 1,000,000 borers in this Senate they would make a direct line for his head, which would keep them busy for six months. As the board points out, the PostmasterGeneral said on 11th September, 1958- 1 lay on the table of the House the report of the Australian Broadcasting Control Board on its inquiry into applications received for commercial television licences for the Brisbane and Adelaide areas. The principal recommendation in the board’s report is that one licence should be issued in each of these cities. The Government, however, has decided that two licences should be granted in each case. It has asked the board to make recommendations as to which applicants should receive the licences.
May I say, in explanation of that information, that the Postmaster-General under the act has authority to ask the board to make a recommendation to him upon these matters, and under the act he is not obliged to accept the recommendations of the board. But here we have a case of a board of experts investigating the granting of licences in two cities, that is, Adelaide and Brisbane; and I have no doubt that it exercised its functions very conscientiously and that what it submitted to the Minister was its deliberate findings. The board recommended one licence in respect of each city. But what did the Government say? The government of experts said that the board was wrong and that there should be two commercial licences granted in those two cities. That brings me to a consideration of the question of economics, because the economics of television are important as far as the viewers are concerned. If the television stations are not in a financial position to provide interesting screenings, the people become disgusted with the programmes. I am speaking from the point of view of the average viewer of television. We have this situation: Sydney has a population of, say, 2,000,000 people, and it has been held by experts in the field of television that an economic unit so far as commercial television is concerned is about 1,500,000 people to each television station. Sydney has two, and perhaps it is in a much better position than any other city in the Commonwealth will be in. In Melbourne, there are 1,750,000 people, and that city has two-
– We have three television stations in Melbourne.
– Melbourne has two commercial stations, and Sydney has two commercial stations. In addition, one station in each city is operated by the Australian Broadcasting Commission. The Government endorses the proposal that Adelaide, which has a population of about 530,000, should have two commercial television stations in addition to the A.B.C. station. How in the name of goodness can a city with such a small population support, by way of advertisements, two commercial stations? Is it any wonder that the board, which was appointed to investigate this matter, said that one television station would be adequate for Adelaide! I can only congratulate the board on its recommendation, and on standing its ground when challenged by the Government.
Brisbane, with about 543,000 people, has a slightly higher population than Adelaide. Two television licences have been granted to Brisbane. The board, when deciding the number of licences that should be granted to those two cities took into consideration their advertising potential and no doubt said to itself, “ How can the licensees obtain from the advertisers sufficient funds to maintain two commercial stations? “ What will be the position in Perth and Hobart? Surely the Government will not grant two commercial licences in each of those cities. If it does, Perth, with a population of about 376,000, and Hobart, with a population of about 104,000, will have to provide sufficient money by way of advertising to maintain two commercial stations.
– Only one commercial licence has been granted to Hobart.
– I am glad to hear that. I do not think that 104,000 people can support even one commercial station. T understand that television production costs are very high, and they of necessity must be added to the cost of the articles that are advertised. The extra money must come out of the pockets of the consumers, the people who have to buy the food, clothing and other services that are advertised. Television advertising is one of the best possible avenues for bringing articles before the public notice.
– I have seen a great number of advertisements on television for the Labour party.
– And I have seen a great number of advertisements for the Liberal party.
– Order! The honorable senator’s time has expired.
– I have listened with great interest to this debate. Senator Kennelly’s entire argument, when he did stick to the point and did not try to draw red herrings across the trail in an effort to assist the political capaigns now going on in Western Australia and New South Wales - red herrings such as banking and the advisability of bestowing knighthoods - was based on two points, first, whether the Government should have ignored, as he has said, the original report of the Australian Broadcasting Control Board, and secondly, whether, in adopting the suggestion of the board that two licences should be granted to Adelaide and Brisbane the Government was contravening the Broadcasting and Television Act 1942-1956. He referred to the recommendation as illegal.
The original report of the board contains seven points in favour of granting one licence, and eight points in favour of granting two licences. The Government has proved itself right in arriving at the courageous decision to say to the board: “ Have another look at this matter. We think those cities should have two licences each.” It said this because each of the points enumerated by the board in favour of granting one licence has been proved to be either incorrect or unable to stand up to argument.
The first two points mentioned by the board relate to whether it would be a commercial proposition to have two stations, and whether sufficient revenue would be available to enable the stations to run at a profit. As Senator Benn has said, the board was worried about the advertising potential. I know of my own knowledge that in South Australia, even before the commercial station is in operation, the advertising potential which was expected by the applicants has trebled. The station holds applications a year in advance for advertising. In that sense, the station in Adelaide is not faced with any shortage of revenue.
The board mentioned in its third point that there might be a shortage of public subscriptions. That also has been proved to be incorrect. The public has subscribed very quickly and very willingly and, as more shares become available - many of the companies that have now guaranteed these ventures have indicated that they will make more shares available to the public - I have no doubt that the public will continue their support.
The fourth point stated by the board is that a second commercial station could be licensed at a later date. Obviously, that is not a good argument, and certainly it is against the Government’s policy. The original licensee would have an unfair advantage over the holder of the second licence that was granted at a later date. The second licensee would have to compete with a station already established.
In its fifth point the board said that the two stations would experience difficulty in maintaining adequate standards. Obviously, competition is the best way to maintain standards in any form of enterprise.
The sixth point was that the two commercial stations would be engaged in a struggle for public support and for existence. That also has been proved to be incorrect. Finally, the board thought that due to the population in. Adelaide and Brisbane, which is lower than the population in Sydney and Melbourne, the two stations would have difficulty in obtaining support. Perhaps at the time the board made that suggestion, the people in Sydney and Melbourne were comparatively slow in purchasing television receivers. Since then, the popularity of television has catapulted to the skies, and is continuing to rise. Obviously, no such difficulty will be experienced in either Adelaide or Brisbane. Each of the points put forward by the board in favour of only one licence being granted has been proved to be without substance. The Government had the courage to say, “ We do not agree with you on this; have another look at it “.
Looking at the arguments in favour of two licences being granted, the board said that if two competent, suitable applicants were available they should be granted the licences. Two such applicants were available. I think it was Senator McKenna who deplored .the fact .that newspapers (have more or less monopolized the field. I .remind him that, obviously, the newspapers were behind each .application that was made in the States because they want to enter this new medium. They are -specialists in the field of mass communication, .and there is no reason on earth why they should not be the influence behind the applications.
The board in its second point in favour of the additional licence stated that -better service would be provided. That is in direct contrast to its previous reason why only one licence should be granted. Obviously, better service will be provided. Television is an expensive medium, and if arrangements can be made for a syndication of material Ho stations in all States, obviously the cost of the services provided will be reduced.
I am pleased to see that one of the licensees in Adelaide has already installed very ex-pensive equipment for tape recording live shows in that city. We have been very fortunate in obtaining the services of an extremely talented woman to control our children’s programmes. She is determined to conduct live shows in which the children will participate. That is one of the most important features of television, that the children should participate and, at the same time, learn that they are being entertained. They should not be sitting back viewing crime pictures and other unsuitable shows. This expensive equipment will enable her shows to be recorded, syndicated through the other States and even sold abroad. I am delighted that the Government was wise enough to allow these companies to come in when service such as that is .made possible.
Tt is obvious that there will be more employment. Surely, that ought to interest the Opposition whose members say they want to see the members of Actors’ Equity given more opportunities. By granting two licences in each State, more opportunities will be provided for actors, writers, technicians and others. Further, greater service to the public will result from the opening of wider opportunities. As Senator Sir Neil O’sullivan has explained, the evils of monopoly will be overcome. We do not believe in monopolies. The Government’s policy always has been to grant competitive opportunities wherever possible, and in this case the Government is .merely carrying out its normal policy.
In addition to the point put forward by the board ‘for and against the granting of one licence, there are also the political and legal aspects to be considered. The members of the board would not know anything about these; .they are not experienced in these matters. The Government, however, did consider them and, as I said before, made a courageous decision. The Government did not have to make that decision before the federal elections because it was a decision that could have proved embarrassing. In any event it could have been deferred until after the elections. The Labour party could quite easily have made then the attack which it is making now. But the Labour party did not make its attack during the federal election campaign. On the contrary, the Labour party has decided to wait until now, thinking that possibly such an attack will be of more help in the two pending State elections. It was quite obvious that Labour’s cause was lost prior to the recent federal elections, and therefore the attack being made now would have been useless had it been made at that time.
I think Senator Sir Neil O’sullivan has dealt effectively with Senator Kennelly’s point relating to the illegality of granting licences to the two particular companies that were chosen in Brisbane. 1 presume that the “ Herald “ newspaper does own or control the station in Victoria, but it does not control either directly, or indirectly, the stations in Brisbane and Adelaide. Senator Kennelly also said that the “ Herald “ newspaper owns the “ Advertiser “ in Adelaide. That is a completely distorted statement of the position.
– It controls the “ Advertiser “.
– I repeat that is a completely distorted statement of the position. The “ Herald “ newspaper owns 36 per cent, of the shares in the “ Advertiser “, but I point out that the “ Advertiser” owns, I think, 30 per cent, of the shares in the television station -in which it is (interested. That being so, the “ Herald “ newspaper .owns only 36 ,per cent, of the 30 per cent, of the shares held by the “ Advertiser “ in the particular television station.
Senator Sir. Neil O’Sullivan has given the true- position relating to shares held by newspapers in Brisbane, andI repeat that it is important that there should be some tie-up between the States if we are to have the best service at the cheapest rates and so go on from strength to strength encouraging the production of live shows. I suggest that the members of the Labour party, instead of making a ridiculous attack such as this on a courageous decision of the Government, would be better employed in doing their utmost to encourage the production of shows of a high standard, especially when it comes to children’s programmes. The most important part of television is the children’s programmes.
At the present time, the children are watching crime pictures, wild westerns and so on in most cases. If we can have more live shows of the type to be produced in Adelaide, in which the children will be encouraged to participate, much benefit will accrue to the children, but it will need every bit of encouragement from every parent and every politician to influence the children to watch such shows. Unfortunately, the children have grown to like this easy form of sensational entertainment which they need only sit back and watch. If every politician in this Parliament, whether he be Labour or Liberal, will only use his influence to encourage the children to watch something which may take a little effort on their part as they are to participate in the show, some good must result. If members of the Labour party were to devote their energies towards encouraging the children to take an interest in programmes such as the one I have described, they would be occupying their time a great deal better than they are now and they would be doing what this Government has done - something to help give the people of Australia the best possible service, whilst at the same time, widening the opportunities in another field of entertainment for writers, actors, technicians and so on. That is the direction in which members of the Labour party can help the people. Nothing can be gained from offering destructive criticism of a board which did its best in making a recommendation but which was not in a position to know all the facts known to the Government.
Question put -
That the Senate, at its rising, adjourn till to-morrow at 11,30 a.m.
The Senate divided. (The President - Senator the Hon. Sir Alister McMullin.)
Majority. … … 12
Question so resolved in the negative.
Sitting suspended from 5.46 to 8 p.m.
Message received from the House of Representatives intimating that it had agreed to the following resolution in connexion with theForeign Affairs Committee: -
That Mr Chaney, Mr. Drummond, Mr. Joske, Sir Wilfrid. Kent Hughes, Mr. Lucock, Mr. Mackinnon, Mr McColm and Mr. Wentworth be members of the Joint Committee on Foreign Affairs.
That, until such time as the five remaining vacancies for members of the House of Representatives on this committee are filled by members of the Opposition; Mr. Aston, Mr. Failes, Mr. Forbes, Mr. Haworth and Mr. Wheeler be members of the committee.
Debate resumed from 25th February (vide page 191), on motion by Senator Paltridge -
That the bill be now read a second time.
– The measure now before the Senate is very comprehensive and complicated. When it was introduced we heard a very comprehensive second reading speech from the Minister for Civil Aviation (Senator Paltridge), just one week ago. I assure the Minister that a good deal of close study was necessary before the principles could be absorbed, and some degree of familiarity with the subject-matter of the bill could be developed, lt is a mixture of international law, Australian constitutional law, the law of torts - of which the ordinary motor accident is the common example - and the law relating to common carriers. In addition, it deals with very many practical matters. As its title indicates, it relates to the liability of carriers by air, primarily in the international field. lt also deals with the domestic position in Australia. That is an unusual departure in a bill of this type. Normally, an international matter, flowing from an international convention, is disposed of quite separately, and domestic matters are attended to in quite another bill. I thought at first that this was an untidy way of presenting the subject-matter, but upon further consideration I came to the conclusion that it was perhaps convenient for every one in the field to be able to find all the law on the subject in the one measure. For that reason, I see no objection in principle to the unusual form of presentation.
The real nub of this bill is, of course, the Hague Convention of 1955. It is a protocol amending the earlier international law relating to liability for damage caused through carriage by air. The 1929 agreement, which was drafted at Warsaw, was ratified and adopted by Australia in 1935, through our Carriage by Air Act. That, with a subsequent brief Warsaw Protocol, has governed the situation in all the intervening years. Now the Hague Convention comes up for consideration. It is not to take effect until 30 nations have ratified it. Obviously, it is hoped that all the main aviation countries will be drawn into the new net before there is a departure from the Warsaw Convention, to which some 46 countries are signatories.
It is rather a mixed position. There are some 46 signatories to the first Warsaw Convention, some 30 only to the Warsaw
Protocol, and now there is the high level of ratification required before this new international protocol comes- into operation. When one examines the three relevant documents - the two Warsaw documents and the Hague document, one finds great difficulty in making out of them one coherent document. The recent Hague protocol has been drawn in such a way as to amend existing articles of the Warsaw Convention, but it also branches off into a whole series of new provisions, without relationship to the number or format of the prior Warsaw Convention. Although the most recent document requires that it and the two preceding documents be read as one, that is almost a physical impossibility. The Minister attempted, upon my application, to have one document made out of the three, and but for that act of courtesy my study of the whole matter would have been far more prolonged, and would have involved tracing all the amendments through from one document to another. I thank the Minister for his courtesy in making available what purported to be a consolidation of the three documents.
When one looks at the Hague Convention one is permitted no reservations, except as to a minor and insignificant qualification relating to the carriage of military personnel in commercial aircraft. It is either to be accepted or to be rejected. The original convention dealt with damage to passengers in aircraft, or when embarking in or disembarking from aircraft engaged on international flights.
– Does not the honorable senator refer to injury to passengers?
– I mention, death first. I propose next to refer to injury in similar circumstances, while engaged on an international flight - the liability being confined to the processes of embarkation, disembarkation and actual presence on an aircraft. To put it shortly, the convention relates to death and injury to passengers, the question of liability for safe transport of cargo, of passengers, of registered lugluggage, and of passengers’ personal hand luggage.
I propose to consider, first, the reference to passengers. The original Warsaw Convention, which is still operative, and which will continue to be operative until the Hague Convention has been ratified by 30 nations. in 1929 fixed the limit of liability at £3,700. I may mention that the currency is expressed in gold francs and that, in common with the Minister, I am translating all the figures into the Australia equivalent. I repeat, the limit of liability for damages arising from the death of a passenger, or injury to a passenger, was £3,700. For cargo and luggage the limit was £100. For personal luggage it was £10. It is rather interesting to note that these figures were fixed in 1929 at the depth of the depression, or at least when the depression was well under way. The Hague Protocol, the immediate subject for consideration, has taken the very important step of exactly doubling the amount of damages payable in respect of passengers’ death or injury. It is a very big step forward, and quite important. It is interesting to observe that not one of the 44 nations which have expressed approval of the new Hague Convention sought an increase of the limits of £100 and £10 for luggage. That is rather surprising, having regard to the altered cost in the interim of clothing and personal belongings. I was very surprised that no change was made in that respect. Tn short, what now happens under the three documents, including the Hague Protocol, is that the liability of carriers in respect of the death or injury of a passenger is severely limited. It is limited to £7,500 in each particular case of injury or death. From the viewpoint of the passenger or his dependents, the great benefit to them is that no longer have they an obligation to prove negligence on the part of an airline operator on an international flight.
That is of vast importance when we remember that our own airline, Qantas - one of the famous airlines of the world - visits 26 different countries. An air disaster or accident may take place in any one of those 26 countries. I invite the Senate to consider the difficulty of proving negligence if an aircraft got into trouble in a country far from these shores. It might be a country not highly developed or civilized, with an ill-developed system of law. The plaintiff would be faced with the difficulty of language, the problem of finding witnesses and of proving affirmatively negligence on the part of the airline operator, to say nothing of the cost of travelling to find the witnesses, bringing them to the tribunal, supporting them and paying their expenses in the meantime. It would make the burden of proving negligence almost intolerable.
– Then there would be the doubtful quality of the witnesses* evidence.
– That is a difficulty. I referred to the lack of development of the country, the difficulty of language and an ill-developed system of law. It would be a hopeless task for the ordinary set of dependants whose bread-winner had been killed in the course of an accident. Now, although the carrier is relieved of unlimited liability to the extent that damages could be proved, and he knows where he is with a fixed limit of £7,500 in each case, the dependants of persons killed or injured persons have the vast advantage of being able to recover damages as long as they can establish death or injury and the degree of damage. That makes the task, up to that limit, a relatively easy and agreeable one. So both passengers and airline operators derive advantages from this arrangement.
I should qualify what I said regarding the £7,500 limit on the liability on the airline operator. In either of two sets of circumstances the liability is unlimited. If the operator fails to endorse upon his ticket, either for a passenger or for the transport of goods, that his liability is limited under the convention, then he is mulct with unlimited liability. Further, by Article XIII. of the Hague Protocol - the one that we are now considering - the airline operator has an unlimited liability if he does something with intent to cause damage. That is almost an unthinkable proposition, but the wording of the new Article XIII. is -
The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly or with knowledge that damage would probably result.
– Probably gross negligence.
– I think it goes further than that, because it implies the mental element of intent and knowledge.
– But not necessarily intent to cause the damage flowing from the injury concerned.
– I should say it must be done with intent to cause damage.
– Some damage, but not necessarily the damage complained of, surely.
– Some damage. I suppose the thought in mind is that an unscrupulous operator might wish to wreck the plane to recover insurance and might be indifferent to the damage caused to the passengers.
– It would surely be negligence of a lesser degree than that.
– I merely point out that it is indicated in the clause that there must be an intent. That involves a mental element. I think that Senator Vincent will agree with me that the devil himself knoweth not the mind of man, and that a plaintiff who sought to establish intent of that nature on the part of an airline operator would be in real difficulty. So I regard that particular provision, leaving the airline operator with unlimited liability, as one that we are not likely to hear anything about. I do not know that any plaintiff has taken advantage, or sought to take advantage of a provision of that kind away back from’ the time the Warsaw Convention became operative.
The other thing I wish to say in relation to the airline operator and the passenger is that the airline operator has the right to allege contributory negligence against a passenger. Again, that would be a very rare case. It would be the type of case referred to by the Minister, where, despite instructions, in turbulent conditions or on landing a passenger refused to fasten his safety belt and in consequence suffered an injury. That probably would be the only type of contributory negligence a passenger could be responsible for.
– There is one other. There have been cases of passengers jumping out of aircraft.
– That is true. I should not think that they would be much concerned about contributory negligence in such a case. There would not be much trouble about establishing that. I cannot imagine that in those circumstances anybody would take action.
– There would be the difficulty of finding him.
– They would have to piece him together and establish what had happened to him. There is a different method of assessing damages in these cases. For the purpose of assessing damage where contributory negligence is alleged, the damages are deemed to be unlimited. The full measure of damage is proved and then the court deducts whatever amount it thinks proper to deduct on account of the contributory negligence of the passenger. If the amount exceeds £7,500, it is then reduced to £7,500. Of course, if it is lower than £7,500 after the deduction, it stays put as the verdict.
The final matter to which I wish to refer under that heading is contained in Article 20, which reads -
The carrier is not liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
That would be a very heavy burden for an airline operator to shoulder. Again, I believe that no airline operator has sought to avail himself of that. He would be in vast difficulties in establishing that he took all necessary measures to avoid damage. As the Minister indicated if he did take all necessary measures, the damage would not have occurred. It is rather a formal and technical protection to the carrier but for the sake of completeness in discussing the matter at this level, 1 advert to that qualification of the strictly limited liability of the carrier.
It is important to note that there are three classes of people who may claim. An employer who has been obliged to pay workers’ compensation to an employee who has been injured and has received compensation .pursuant to this Convention is entited to recover from the £7,500. In this country, i! would mean that an insurance company would be the real beneficiary under an action in respect of that. The executor is entitled to recover for the estate loss of profits on behalf of the passenger who may be kil.’ed, medical and hospital expenses, anr! funeral expenses. If a passenger was injured and lingered in hospital for a lon? period, a very lange portion of the £7,500 limit could be absorbed under that particular heading.
– To what section is the honorable senator referring?
– 1 cannot refer you to the particular section off-hand. We can look at it during the committee stage. 1 did not note the number of the section for this purpose, but it is provided for in both the convention and our own legislation. Both the convention and the bill authorize the executor, the employer, and finally the dependants to recover. The dependants have a very wide scope; they cover parents, grandparents, brothers, sisters and children who are dependent. So all those three classes of people must participate between them in the total of £7,500. Looked at from that angle, one cannot regard the provision as being generous.
I can well understand that some countries wished to make the amount very much more than £7,500. I understand that the United States of America and Canada were particularly keen to have a substantially higher figure as the limit of liability. The tendency, of course, would be to lower the figure until as many as possible, at least of the major air-minded nations, were accommodated at a figure they would accept. So I presume the figure of £7,500 was a compromise between those who did not want to go that far and those who wanted to go very much further.
We in this Parliament are faced with the necessity of accepting or rejecting the Hague Protocol. As I have indicated, no reservations can be made, lt will not become operative until 30 nations have signed it. At the moment, I understand that only eleven nations have really ratified it, even though the document was propounded three and a half years ago. They are nations in the Communist bloc which have a particular interest in the convention by reason of the fact that one of the iron curtain countries, Poland, has the carriage of the convention. It is the registering and administering authority. Probably that explains, too, why a protocol in this untidy form was formulated instead of a brand new document being written over the whole thing. Of course, that might have resurrected the question of the repository of the convention and the administering authority. I can see that there have been some power politics at work in ensuring that we got the Hague Protocol in a none-too-easy referable form. This being a major step forward, there can be no doubt that the
Parliament must accept the Hague Protocol, and we of the Opposition do that with a good deal of pleasure.
I pay tribute to the draftsman for the drafting of this bill. I can see that it has occasioned him much thought and many anxious hours, and that he has had a real problem in providing for all the contingencies that arise by virtue of having to keep the Warsaw Convention alive until the new one comes into operation, and for many other reasons as well. I should like to pay tribute also to the Australian delegation to The Hague - to Dr. Poulton and his men, and Mr. Richardson, the legal secretary. I know that they played a very major part in the discussions at The Hague in formulating this document. I have taken advantage of the opportunity to scan a survey of the proceedings, and I am very delighted to learn of the major part that Australia played in the deliberations.
I note nothing in the convention dealing with the enforcement of judgments. The Senate will recall that in September last we had before us the damage by aircraft convention, particularly as between Commonwealth countries, dealing with damage caused on the surface of the earth by aircraft flying overhead. In that convention there were the most particular provisions dealing with the enforcement of judgments. I remember that I commended it as being a vast advance in the sphere of international law. Nothing of that kind appears in the convention now before us. The difference, of course, is that the Rome convention, which dealt with the matter to which I have just adverted - that is, things falling from aeroplanes - was made between Commonwealth countries which understood each other’s systems of law and which, of course, had similar systems. Now that all the nations of the world are involved, as they are in The Hague Protocol, and we have very different and diverse systems of law, ideologies and philosophies, it is not so easy to get agreement about the enforcement of judgments. The fact that the convention now before us lacks any such provision is a defect; but it is one which, having regard to the broad politics of the matter, I suppose, could not be helped.
The other matter that I comment upon in relation to the convention is the protection of the crew. The protection that is extended to passengers and even to people who are flying gratuitously, that is, flying without paying anything to the airline operator, does not extend to members of the crew. I should like the Minister for Civil Aviation to reassure me on this point. I should like to know whether, in particular in relation to our own Australian pilots flying on international lines, the compensation for death or injury that is available to them through their employers is at least equal to that which is available to others. I should hope that it would be very much better. What thought was given to that particular point by the Government? If, as I understand the position, crew members are not covered by this particular convention, I should like the Minister’s assurance that in some other way crew members who are constantly carrying the pitcher to the well have adequate protection for themselves in the event of injury or for their dependants in the event of death.
Having made those comments, I leave the forma] international convention and pass to the next interesting and somewhat unprecedented step where, simultaneously with the acceptance of an international convention, the Government proceeds to apply the broad principles there determined to its own domestic airlines. Once the Government enters this field, it inevitably runs up against constitutional trouble. There is no difficulty in the international field because of its power over both external affairs and overseas trade; but when it comes back home it must ask, “ How far does our jurisdiction extend? “ As the jurisdiction is limited to interstate trade, the Commonwealth can legislate only in relation to interstate airline operators. It can extend its legislation to any intra-state activity only where power has been referred by a State. At the moment, of the two States which have referred power, only one reference is operative - that is, in the case of Queensland. So, unfortunately - it is not the Government’s fault, but is because of a lack of constitutional power - what the Government purports to do for Australian domestic airlines and passengers has the gap that the great bulk of intra-state air passengers, that is those who fly between two points in one
State, do not come within the protection of the provisions with which the bill now deals and which 1 am about to discuss.
I am happy to be able to remind the Senate that one of the powers that the Constitution Review Committee recommended should be ceded to the Parliament was power over civil aviation. If the Commonwealth had power in that field it would be quite easy for it to legislate now on an Australia-wide basis, covering all passengers, whether intra-state or interstate, without exception. The present position regarding liability in Australia was explained by the Minister and I shall review it again briefly.
When Trans-Australia Airlines was established by legislation in 1945 there were imposed upon it the liabilities of a common carrier. That gave it absolute liability, unless it contracted out of its liability, to its clients. But a limit was set by the government in the legislation, and I regret to say that that limit was only £2,000.
– And also subject to the requirement of proof of negligence in regard to passengers - is that right?
– Yes, I would agree with that. It was very narrow and was limited to £2,000. The one thing I can say in its favour is that here was a new airline, without traditions, with the management untried, and no doubt there was some wisdom in starting it on a tight rein and gradually letting out the rein; but that very tight rein has been kept on from 1945 right up till now. I do not think that that was reasonable. But at least there was a limit imposed, and T.A.A. was prohibited from contracting out of liability to that point. But consider its competitors. All the other airline operators were in the position of common carriers and all contracted themselves out of liability. As you picked up their tickets, you saw that each one repudiated liability and would only carry you on the condition that you accepted the fact that they had no liability for negligence of any kind, no matter how gross it was.
– And they still do.
– Yes. That is the present position. Voluntarily, they insure for £2,000 against the death of each passenger, in that respect bringing the liability up to the level of that accepted by T.A.A., but for partial disability or incapacity they have a limit of £10 a week for 50 weeks, whereas T.A.A. has a limit of £20 a week for 100 weeks. In both cases, in my view, the amounts are too low.
Leaving the international air conventions right out of consideration for the moment, what the Government is doing in relation to Australia alone is to adopt almost to the penny the standards set in the international sphere. In other words, there will be limited liability of £7,500, but nobody may contract out of that. In that respect, all airlines will be brought on to the one footing. That is a vast advance on the present position. The amount will be nearly four times higher than it is at present, and for that reason I must commend the proposal as a very important step forward. But I repeat that the amount is altogether too low, having regard to the standards of this country and to the general run of damages that are awarded in the case of death by accident due to negligence or injury caused by negligence.
On the very day that I was studying this matter - last Thursday - I noted two cases reported in the press. The first concerned a man who was a passenger in a vehicle which overturned at Newcastle, and who was killed. He was buried under a load of icecream and debris and not found for three hours. His widow and three children were awarded £16,230. On the same day, a police constable who had suffered a knee injury in a road accident was awarded £8,500 for loss of promotion and £9,000 for injuries sustained in the accident. In other words, there were verdicts for £16,230 and £17,500. From my own knowledge, verdicts of that type are quite common.
I invite the Senate to consider the plight of the dependants of a bread-winner who is killed in an air accident in Australia. Let us suppose that he left a young wife and a number of children of tender age who would need to be clothed and housed, fed and educated for perhaps twelve or fifteen years. They might have to share the damages of £7,500 with an executor, or with an employer, if the man were injured and lingered for a considerable period. I say that that would not be a bright outlook for that family, and that the amount would be most inadequate. One has only to think of how one’s own family, when they were of tender age, would have fared if one had been a casualty in an air accident to realize that the amounts are altogether too low.
The same old figures have again been fixed for loss of baggage and personal luggage - £100 for baggage and a sub-limit of £10 for personal luggage. The figures fixed away back in 1929, during the depression, have been written into this bill by the Government. Having regard to the cost of clothing and personal equipment, I suggest that those amounts might well have been revised. Even though no country raised the matter at the convention, I invite the Minister, now that we are dealing with local conditions, to give some thought to the propriety and fairness of raising those two limits as well.
The Minister was good enough to supply some figures to the Senate regarding the additional costs that will be imposed upon the airline operators of Australia once these proposals come into operation. He said that the costs would rise from £42,000 per annum to £110,000 per annum, spread over all the airlines in Australia. Since the limit of liability has been increased by nearly 400 per cent, I must confess that the smallness of the extra premiums surprises me. On looking at the figures, I find that in the year ended, June, 1958, T.A.A. carried more than 841,000 passengers. If they were the only passengers in Australia and the £68,000 that will be involved in additional insurance under the new proposals were spread over them, it would amount to only ls. 9d. per head. But, of course, the total number of air passengers in Australia would be at least double that number, so that ‘the additional cost to the companies would be no more than 9d. or lOd. per passenger. That is. on the face of it, moderate, and it occurred to me that it would be reasonable if that sum were added to the fare to reimburse the companies. If the amount of liability were vastly increased, or if we took the next step and made liability unlimited, a small charge could be made in respect of every passenger. It would really only amount to a matter of pence. Then, in the relatively rare event of an air accident or a fatality, we in this Parliament could be assured that we had made adequate provision for the dependants of a bread-winner who suffered permanent incapacity. So I would not accept the argument that any increase in the amount of £7,500 - the limit of damages - would impose too heavy an insurance burden on the airline operators. 1 think that they are entitled to do what the road transport operators do. The road transport people are compelled to insure to an unlimited amount, and they pass it on in the charges for the services that they render.
– They are not compelled to take unlimited third party insurance.
– In some States, they are.
– They are in some States.
– I do not think they are in Victoria, and they are not in Tasmania.
– That may be so, but it is done throughout Australia. I do not claim to know whether it is done in every State, but it is done in some States. The insurance costs that they incur are in fact passed on to the travelling public, and that seems to me to be a perfectly reasonable position.
The Minister indicated that insurance rates are sensitive in this matter of airline operation. And, of course, the insurance companies play safe. They will not look at the wonderful flying conditions in Australia or the marvellous record we have of safety in flying. They base their rates upon world conditions. There have been a lot of accidents around the world recently, and I understand their sensitivity when I learn that following the Electra disaster that took 74 people into the Hudson River near New York recently the rates were increased right around the world as a result of the one accident. I think that this was in the Minister’s mind when he said that the rates are sensitive.
– They are more sensitive than charter rates.
– The Minister has had some experience of that, too. If there is any unfairness in the insurance rates of airline operators, in the first place it is not difficult to get the business. It has only to be sought from a few people. It is not a matter of pursuing business, of chasing after scores, or hundreds of thousands of individuals. Only a few companies are concerned. There are no great administrative costs in writing the business and, of course, it is not held by the company that writes it; it is shared out right through the insurance field. A great deal of reinsurance is effected by Lloyds in the matter of aircraft insurance and insurance of this type. I point out to the Minister that if there were any unfairness in relation to the rates that are charged by insurance companies in this field, the Commonwealth has power over insurance. It could, if it wanted to, embark in that field itself, or, perhaps, condition the behaviour of insurance companies by merely indicating that the Commonwealth might embark in that field. After all, the Commonwealth carries its own insurance in other matters; and I could see, perhaps, some lucrative business for the Commonwealth and some ease for the airline operators if the Commonwealth considered participation in the insurance field.
– That may be wishful thinking.
– At least I offer the thought, and I shall be very interested to hear the Minister’s comment on it. It is a bargaining factor in his hands if he thinks that the insurance rates are quite unreasonable.
We of the Opposition are pleased with the progress. We say without reservation that very substantial progress is made in relation to the domestic position under this bill, but we cannot see why either a very much higher limit was not fixed or why an action for negligence is still not preserved, where there is not unlimited liability, to the extent that damages can be proved. In Australia, it is very different to abroad in these respects: First, we have probably the best flying conditions in the world here; and secondly, we have the most magnificent safety record. And I pay tribute to the Department of Civil Aviation, which has played an extraordinary part in bringing about that happy result. There has not been a fatality in Australia since 1951.
– Touch wood!
– Yes, as the honorable senator says, touch wood! I have looked through the air accident records, and
I am delighted to find that there have been no fatalities since 1951. Trans-Australia Airlines, the government airline, has not had one fatality since it started flying in 1946. Up to June of last year, it has carried more than 7,200,000 passengers without a fatality.
– It has a very great record.
– It is a wonderful record, and I think every honorable senator is entitled to be proud of it. I take the opportunity to pay tribute to those who control that organization and operate it in every capacity in conjunction with the Department of Civil Aviation for the extraordinarily good record. I am’ sure that every member of the Senate will be delighted to hear me mention what appeared in the press quite recently, that T.A.A. has won the world award for reliability in flying. This announcement appeared in “ The Sydney Morning Herald “ of 9th February last -
RELIABILITY AWARD FOR T.A.A.
Trans-Australia Airlines has been awarded a British Commonwealth trophy for reliability in civil aviation.
It is the Cumberbatch trophy, awarded’ annually by the Guild of Air Pilots and Air Navigators “ for the promotion of reliability in civil aviation “.
The guild, in announcing the award, said T.A.A. between February, 1954, and June, 1958, flew schedule air services totalling 984,595 hours and 166,841,754 miles without an accident involving death or injury to a passenger . . .
It acts as an advisory body to the Ministry of Civil Aviation and undertakes examination of pilots for instructors’ certificates.
The award will be presented at a reception in London on April 2.
If anybody present should happen to attend that reception, 1’ ask him to convey to the recipient of the award the congratulations of the Opposition on winning the trophy.
– The Minister should attend.
– I shall not be there, but I will convey the honorable senator’s congratulations to the organization
– I am obliged- to the Minister for that undertaking. Under those conditions in Australia, negligence is surely easier to prove. We have a well- established system of law.. There is no death where there is noi the most complete coronial inquiry where all the evidence is available. If you look through the record of accidents prepared by the Department of Civil Aviation, alongside each one is an explanation of what caused the disaster that led to death or injury of a passenger. It is very rarely that the cause cannot be particularized. So there are complete facilities on the spot, witnesses are readily available, the courts are available, and there are no violent difficulties in the matter of establishing negligence as there would be in the case of an accident taking place overseas. So, the view the Opposition takes is that this bill, with the great merit it possesses in relation to the domestic position, could be improved if an action for negligence were in fact permitted with the only limit of damages the amount that can be proved. Negligence would have to be proved affirmatively and damages assessed as under the provisions of the present bill. If a young family has prospects of damages to the tune of £25,000 for the loss of the bread-winner, if negligence can be proved, why should it not be able to recover that amount?
I think that the mind of the Government was a little circumscribed by the international convention. It got its mind fixed on the amount of £7,500 and stayed there. I note that the Minister did not deal at all in his second-reading speech with this question of unlimited liability for negligence. I have no doubt that he and his advisers have adverted fully to it. I make this plea to him- now even at this stage, that this bill could be vastly improved if a provision to that effect were included. I ami not proposing an amendment to the bill. I propose to approach it in another way. The difficulty is that you have clauses dealing with various matters, each of which excludes liability, for passenger’s death and passenger’s personal luggage. As the bill contains provisions, one- after another, excluding the application of all other laws in this respect, I cannot neatly draft an amendment to provide that notwithstanding anything contained in this law an action for negligence is not prevented.
What I propose to do - to put the matter to the Minister for his consideration - :s to move an amendment to the motion for the second reading of this bill, in the terms that have been circulated and which 1 hope honorable senators now have before them. 1 move -
Omit all words after “ Thai “ and insert in lieu the following words: - “ the bill be withdrawn and redrafted to incorporate, in relation to Australian domestic air services within Commonwealth competence, the general principle of unlimited liability at law for negligence on the part of airline operators in respect of passengers, cargo and baggage “. 1 suggest that such a provision would be fair and reasonable. If a death occurred, the dependants of the deceased would have the opportunity of judging the position for themselves, and of asking: “ What damage have we sustained? In terms of money is it greater than £7,500? What prospects have we of establishing negligence? What risks do we run if we attempt to establish negligence and fail? “
– Does the honorable senator suggest that the bill should be withdrawn and redrafted to incorporate a provision to the effect that negligence in excess of an amount of £7,500 may be established?
– Yes. I should give to the dependants the right to determine whether they will sue for negligence, or whether they will accept the position that they need not establish negligence, provided they can prove damage to the amount of £7,500 which they will recover.
– The amendment is not worded in that way.
– The honorable senator is quite free to express that opinion. I intended that the amendment should convey that impression, and I think that it does. However, if the honorable senator can convince me to the contrary - I am quite willing to listen to his arguments - then I shall revise my proposal. But the intention - I merely wish to convey the broad content - is not to disturb anything that the Government has done in the domestic field.
– The honorable senator wishes to preserve the existing provisions?
– That is correct, but I want to give to the dependants, or to the injured person, the right to sue for negligence.
– Over and above the amount of £7,500?
– Yes, over and above that amount. I think that perhaps there should be some kind of mulct or penalty upon the person who sues for negligence and does not recover more than £7,500. I suggest to the Minister that perhaps that matter could be adjusted by a provision in relation to the payment of costs in the event of the dependants or injured persons not succeeding in a claim to the extent 1 have mentioned. If my proposal were adopted, a fair proposition would be presented to the dependants: “Do we take the risk of paying the costs? Do we take the risk of proving negligence; or do we accept the statutory amount? “ The Minister might consider giving the dependants that option.
I warmly commend the Minister for acting so promptly, even though it has taken three and a half years for the legislation to reach this stage - I know how slowly things move in the international field - but he would have a measure of which he could be doubly proud if he would give to the dependants the option I have suggested. We have not had many major air disasters in this country, thank goodness - none, in fact in recent years - but with the advent of the new Electra aircraft capable of carrying 74 passengers, the Government, under the Minister’s proposal, would face a liability of over £500,000 if all passengers were killed.
– It is difficult to establish negligence in an air accident.
– I suggest not, because court inquiries are conducted and every piece of evidence is put before the court. If honorable senators care to look at the record of air accidents in Australia prepared by the Department of Civil Aviation, they will see that a clear explanation is given for almost every accident that occurred. I do not agree with the honorable senator’s statement.
– According to the Leader of the Opposition, an accident could occur without negligence attaching to any person.
– That is right.
– No such accident could occur.
– I do not agree with that proposition.
– An accident could occur that would not involve negligence on the part of any person.
– I merely point out that no country has better facilities for proving negligence in relation to an air accident than we have in Australia where our own courts investigate the matter, where they function in public, where witnesses are examined and where the system of law is well established. No obstacles are placed in the way of the investigation. If negligence can be proved in relation to an air accident, it can be done in Australia. I repeat my suggestion to the Minister that he give serious consideration to my proposal.
– Let us proceed one step at a time.
– I see the wisdom of the Minister’s remark. He has been able to make an exact assessment of the cost involved and I go one step further and analyse the legislation for him and point out the cost per head on his own figures. The amount is almost insignificant. Who would begrudge paying another lOd. to obtain unlimited cover if negligence can be proved? No one would hesitate to do it. I understand that facilities are available at airports to permit an air traveller, if he wishes, to insure himself at a premium of 2s. for an amount of £1,000 for a particular trip, from point of departure to point of arrival. For a premium of £1, a passenger may cover himself for an amount of £10,000 for a particular trip. Further, he may insure himself for a period of 24 hours for £1,000 at a premium of 2s. We in this chamber are constant air travellers. I invite honorable senators to imagine the scene at the Canberra airport on a Friday morning with members of this Parliament taking out their separate insurance covers. Honorable senators may laugh, and they are entitled to laugh at that picture, but the Minister has said that if honorable senators are not satisfied with the cover of £7,500, they may take out these extra insurance covers. Let honorable senators imagine the scene if that were done at the crowded airports attached to the major cities of Australia, and they will realize that the Minister’s suggestion is scarcely practicable. I can imagine the sighs of the air travellers as they safely disembark from the aircraft and say, “We have wasted another premium “. Although the cover is available, the average air traveller does not avail himself of it for two reasons, first, because he simply doesnot think about it, and secondly, because he usually arrives at the airport at the last moment and would experience great difficulty in taking out the additional cover.
I make my last suggestion to the Minister. When we reach the committee stage in the discussion on this legislation, I should like to refer him to clause 30 of the bill, which absolves aircraft operators of liability in regard to loss of or damage toluggage and baggage unless notice is given to the operator within three days, in some cases, and within 21 days in others. Quite conceivably, an accident could occur when an aircraft is taking off or landing, and all the passengers could be incapacitated in hospital and consequently unable to comply with this condition. My suggestion is that a simple amendment would provide that a court could extend the time for any reasonable cause.
I have surprised myself. Although I am interested in this particular legislation I did not intend occupying so much time in discussing it. I am certain that this matter has a fascinating interest, particularly to the lawyer members of this chamber. The subject cannot be studied hurriedly because it is vastly important to all the actual and potential air travellers and their dependants in Australia. Many millions of persons would be involved each year, so this legislation will have an impact upon the lives of our people. My excuse for occupying so much time is that I deeply appreciate its importance.
– I join with the Leader of the Opposition in welcoming this legislation. I have listened to him with great interest for nearly an hour, and all honorable senators will agree that he has covered the proposed legislation most comprehensively. He has prompted discussion on a number of matters not contained in the measure. I shall mention some of the matters with which he engaged our attention. He raised, first, the question as to whether employees of the airline companies will be covered by this legislation. I suggest that they would be covered adequately by their contract of employment. I understand that Qantas, our Australian overseas airline, has paid particular attention to covering employees in the event of death or injury. I am convinced that the Minister for Civil Aviation (Senator Paltridge) will assure me, when he comes to reply, that the employees of Australian airlines engaging in overseas travel are completely and adequately covered. In fact, I believe they are covered to a greater extent than the passengers will be covered under this legislation now before us. Then I was very interested to hear what he said, at the conclusion of his speech, about the amendment which he proposes to submit. I feel that by this amendment he has introduced the vast matter of unlimited liability where the relatives of a deceased person or where an injured person can prove negligence. No doubt that matter will receive adequate consideration from the Minister, and far be it from me to offer the reply which the Minister will give, after careful consideration of the actuarial position.
I desire to mention a number of matters that the Leader of the Opposition did not bring forward, particularly the parlous posititon of passengers travelling intra-state. That position, will not be altered by the legislation under consideraton. As I come from South Australia, I draw attention to the fact that an enormous number of country people are passengers on intrastate journeys, that is within the boundaries of South Australia. I refer to such passengers as people going to the west coast, to Whyalla and to Radium Hill as well as those who travel to Kangaroo Island and Mount Gambier in the south-east. They travel intra-state by private airlines and consequently none of the benefits mentioned this evening would accrue to them. I shall develop that matter later, but I focus attention on that aspect now because, as senators representing the various States, we owe a duty to all citizens of the Commonwealth to promote among State parliaments ideas that will tidy up the points that we lack the constitutional power to tidy up. Senator McKenna did mention that he hoped an amendment of the Constitution might corns forward at some later date to give the Commonwealth complete power over civil aviation, and to tidy these points up, but that, of course, is something that we cannot predict with any certainty. That being so, I think it appropriate to-night that 1 should stress that aspect of air travel.
I agree with Senator McKenna that this bill is a great step forward. After all, we Australians are constantly moving around the world by air. Our own airline touches down in approximately 30 countries whilst the airlines of other countries are carrying Australians backwards and forwards. Senator McKenna quite properly mentioned the most awkward position in which a passenger who was injured in a foreign country would be placed if the Warsaw Convention and the Hague Protocol were not applied to that passenger’s right. I remember my own recent experience when travelling to South America. Some of the airlines by which I travelled on that journey were nowhere near as expert or careful as are Australian airlines. Had one lost baggage, or had one been injured, the possibility of proving negligence on the part of the airlines of any of the South American republics, for instance, would have been extremely remote. I welcome very much the enlightenment and the sense of security that the bill before us will bring to Australians who are travelling abroad.
The limit of damages provided by the bill for fatal accident or very serious injury is £7,400, but I remind the Senate that in the main international airport offices all over the world there are automatic vending machines from which one may buy insurance to any desired amount. AH one needs to do is place the necessary money in the machine, write out certain bare particulars, and one is thereby insured. So that with the basic figure of £7,400, and the additional insurance that a traveller can buy without any trouble at all, I think the position is advanced very greatly by the legislation under consideration.
Coming, as we must, to the Australian position, I was amazed at the decision given in Queensland Supreme Court in 1956 in connexion with a passenger who, unfortunately, was killed. I understand his name was Martin. That accident occurred in 1949 when one of the local Queensland aircraft crashed, killing a number of passengers. The airline company had contracted out of liability, by means of the very small print on the back of the ticket. The widow of one of the passengers sued the airline company for breach of statutory duty, alleging contravention of a number of air navigation regulations. The court held that violation of the regulations was not an actual breach of statutory duty, and, in relation to the contracting out of liability, the court stated that a carrier has complete freedom at common law to make such contracts as he thinks fit, enlarging, diminishing or excluding his common law obligations, and the widow’s action, accordingly, failed.
To-night, we are introducing into the law the safeguard that such a widow’s action cannot fail by virtue of the contracting out of liability, but I draw the attention of the Senate to the fact that we are able to do that only in connexion with interstate flights or flights between a territory and a State. We are not applying that safeguard to intra-state flights by companies other than Trans-Australian Airlines. I feel that I should address these remarks to the Minister in particular and ask him to call, as soon as possible, a conference between himself and Ministers in charge of transport in the various States so that he may draw attention most forcibly to the bill with which we are dealing to-night and so that he may ask them to pass in their own legislatures immediately complementary legislation to cover passengers as well as goods and baggage on, intrastate flights. In the larger States of Western Australia, South Australia, Queensland and, to a certain extent in New South Wales, many intra-state flights take place and, in many cases, the flights are made by some of the more antiquated aircraft using less up-to-date aerodromes and with not so modern aids for aerial navigation. That is of great importance, and the attention of the Senate, and of the various State Parliaments, should be directed to it. There is very little that I can add to what Senator McKenna said in his hour-long speech. He dealt most adequately with the whole matter. I must, of course, give great praise to the Minister, and to the able officers who have helped him to produce this bill. However, I noted that at the conclusion of his speech he said that he would not be surprised if this legislation served as a model for legislation in other common law countries. I should be a little surprised if it did, in its present form.
I think that Senator McKenna was particularly generous when he referred to the format of the bill. I think that one could admit that until the Hague Protocol is finally ratified by 30 nations we are suspended, as it were, between heaven and earth. However, let us assume that it will be confirmed shortly. In that case, the Department of Civil Aviation, and the Minister, would do a great service to Australia by re-writing the whole of the law in the form of a code. At present, of course, it is presented as a series of sections, appended to which are the two conventions, the Hague Protocol amending substantially the Warsaw Convention. Instead of having one document going through to-night we really have three, with consequential amendments in an act that follows, and amendments also of earlier legislation. If the Minister’s wish is to be granted he and his very able officers will have to do a little more work and codify the law relating to carriage by air.
I commend the Minister for what he has done. I realize that the measure is a temporary one that requires ratification, but I suggest that the Minister should embark immediately upon the codification of the law relating to domestic airline carriage. I do hope that eventually there will be codification of international air carriage law also.
With those brief remarks, I commend the bill to honorable senators. I do not think that the amendment foreshadowed by the Leader of the Opposition should be accepted. I congratulate the Minister and his staff on what has been brought to the Senate this evening.
– We have before us a bill to ratlfy an international agreement in connexion with the carriage of passengers and freight generally by international airlines. Apparently, many years ago, an agreement on the subject was reached at Warsaw. The measure before us will cancel that ageement, and will carry on until the new agreement becomes operative. I think that that puts the matter in a nutshell.
On other occasions I have raised my voice against some of the methods of drafts, bills intended for the consideration of this chamber. 1 cannot understand, and never have been able to understand, why it is necessary to insert foreign expressions in a bill. If any honorable senator other than a lawyer, can tell me what a tortfeasor means, 1 shall be glad to listen to him. I might then be able to understand one portion of the bill that 1 cannot understand at present. 1 have complained of this sort of thing before. I think that when we are drafting a bil! we ought to be able to express in terse, concise English just what we mean.
My second objection to the bill was also voiced by Senator McKenna and Senator Laught. It is that the bill contains provisions that will apply to certain airlines in Australia. I think that they should be in a separate bill altogether and not tacked on, at it were, to the Hague Convention agreement set out in the schedules.
I think that Senator McKenna reminded honorable senators that when we were dealing with the position in Australia we were dealing with only part of the airlines operating in Australia - the interstate element. The exception is Queensland, which gave the Commonwealth power to run the intra-state service. I think that every one should fully understand that we cannot legislate in respect of the whole of Australian airline operations. From that point of view, also, there shuold be a separation of the domestic provisions from the schedules in the agreement. When Parliament is asked to consider an international agreement made between 44 countries, it should not be asked to consider something else at the same time. I repeat we should have put before us bills that are written in English and not partly in a foreign language. I have objecte.1 to that kind of thing over and over again.
In discussing the agreement itself I do not propose to cover the ground traversed by Senator McKenna. However, there are one or two points to which I should like to refer. No alteration is to be made in the limit of redress obtainable in respect of goods lost or damaged as compared with the provisions that existed twenty years ago. When one thinks of costs these days that seems very wrong.
The limit in respect of death and injury to passengers is to be raised from £2.000 to £7,400. It is near enough to £7,500. I do not know what the position is in other countries, but I do not suppose Australia will be affected very much so far as the international carriage of passengers and goods is concerned. I understand that only one airline registered in Australia is operating as an international carrier. It is possible that two companies may operate in the future, but I understand that at the moment there is only one. This provision would not make much difference to that one operator, but it could operate against companies registered in other countries and operating to and from or through Australia, as the case may be.
I agree with our leader, Senator McKenna that it is a great pity that the amount of damages has been limited to £7,500 in cases where negligence can be proved against an operating company. The Minister will probably explain why this has been done, but he did not give any reason for it in his second-reading speech. He mentioned only how far the amount had been increased. However, there must be some explanation. I suppose we have either to accept or reject the amendment, and the Opposition has made no suggestion as yet that it will reject the agreement. I should like to see the amount raised, even in the international agreement. Better still, I should like to see the limit wiped out so that a claimant would be able to recover whatever amount of damages he was entitled to.
The Opposition is not quarrelling with the international agreement itself, but it does quarrel with the Government when the Government attempts to apply the terms of the agreement to operators of interstate airlines in Australia. Senator McKenna explained that no provision has been made to cover crews operating aircraft on interstate nights. Crews employed by intrastate airlines are covered, and I think that, to a certain extent, under existing conditions, crews would be covered on interstate nights. However, some of the clauses of this bill will override the present laws governing compensation. Because they will override those compensation laws and substitute something else for them, there is some doubt that crews operating interstate airliners will be covered.
Senator McKenna gave some illustrations of ordinary carriers conveying goods overland, whether interstate or intra-state. Those carriers are covered by certain compensation acts. There is always the possibility of proving negligence against a carrier and a large amount can be awarded to an injured person or to the dependants of a person who is killed in a road accident, but passengers on airlines have been limited lo £7,500 damages, no matter what happens, even if they can prove negligence. I think justification exists for the amendment that has been moved by Senator McKenna tonight. We do not want to take away something that people have already got; we do not want to limit the amount of damages that can be recovered. Everything should be done to enable a person to obtain equity and justice in cases where negligence is involved. 1 think it was Senator Laught who interjected to say that a passenger on an aircraft can take out private insurance by going to one of these one-armed bandits and taking out a ticket costing 2s. for £1,000 cover. That sort of thing is operating in America and some other countries, but it has been said that no one has collected any insurance from the one-armed bandit tickets that have been issued. A person should not be forced to insure himself before travelling on an airline. The airline companies should be forced to have proper coverage, so that when negligence is proved against them a reasonable award can be made to an injured person or to the dependants of a person who has been killed.
I give the Minister credit for one provision contained in the bill. In passing, let me say that this Liberal Government has discovered an extraordinarily good man to take charge of the portfolio of Shipping and Transport. I give him credit for what he has done. He has proved his superiority over a number of others on the Government side. For a long time airline operators have been contracting out of their liabilities, but the Minister proposes to make it impossible in future for an operator to contract out of liability up to the amount of £7,500. Why should an operator be allowed to contract out of his liability? Compensation laws apply throughout Australia, which was one of the first countries in the world to introduce such legislation. Under those laws an employer is liable to pay compensation to an injured employee. It is the employer’s right to insure himself against such an eventuality, but he is not allowed to contract out of his liability altogether and put the responsibility on to somebody else. The liability is still his, notwithstand ing that he insures against it. I am concerned that the right to contract out of a liability has been allowed to exist for so long. I know that the lawyers will tell me that under the common law a person has certain rights and that the common law gives a right to contract out of a liability. If anybody can show me any act passed in any country in the world, including countries of the British Empire, which defines just what the common law is, I would be more satisfied than I am at the moment. As far as I can gather, it is just a tradition and is not anywhere expressly stated. Parties who are involved simply say “ lt is a matter of common law “ and they contract out of this, that and the other thing and thus get away from the chance that they must take by insuring. In short, they throw the onus on to somebody else. That, perhaps, is one of the good aspects of this measure! But that is no reason for having it attached to the international convention that is under consideration. That aspect of the matter ought to have been dealt with in a separate measure.
Senator Laught’s suggestion about a code covering the three different phases of this subject was not a bad one. It should be possible to deal with the various phases of the subject in separate measures rather than having them covered in a conglomerate measure and saying, “ If you do not accept the agreement, you must reject the measure “ or “ If you do not reject the agreement, you must accept the measure and therefore accept everything else in it “. I do not blame the Minister for Civil Aviation for that piece of trickery that is being played upon us.
I think the ball should be withdrawn and that the international agreement should be dealt with by itself and be ratified by the Parliament. Then we should deal separately with some of the provisions that could well be applied to Australian airline services. No one with any sense of proportion would condemn the airlines of Australia for the extraordinarily long period for which they have carried passengers and freight with so few accidents of any kind. The Department of Civil Aviation has done a magnificent job in relation to Australian and overseas airline operations. But I do not want anyone to run away with the idea that we agree that everything that has been done by the department has been correct- A lot still remains to be done, and I hope that money will be provided to make provision for the safer taking off and landing of aircraft at various Australian aerodromes. Quite a number of aerodromes are not properly equipped for blind landings. I repeat that the department and the airlines themselves, probably because of the checks imposed by the department, have done a magnificent job.
I think it was Senator McKenna who said that T.A.A. is to receive some award for its extraordinary record of safety. Some of the other airlines have excellent records, but they do not quite approach that of T.A.A. Probably that is because T.A.A. has had good aircraft, has been extraordinarily careful, and has adopted the motto “ Safety first “. If we adhere to. that motto,. Australia will maintain that wonderful flying record.
I add my entreaty to that of Senator McKenna and ask the Government to withdraw the bill before it is put to the vote, and to submit separate measures dealing with the international agreement and matters affecting Australia internally.
– Mr. President, I express the hope that this measure will be very fully debated in this chamber at both the second reading and committee stages. Not only is the measure important, but it is interesting and somewhat complicated in its scope, and, I might say, somewhat revolutionary in concept. I use the expression “ revolutionary “ guardedly but intentionally. It is certainly a very courageous piece of legislation which seeks, in a very material way, to alter the principles of common law which at present operate in the Commonwealth and the respective States. It is a very important departure from the principles of common law relating to such matters as damage flowing from accident and negligence.
The common law is something of which all Australians are proud and which has often been described as a l’aw that sets a standard’ of efficiency in our community, a standard below which we should not and must not be allowed to fall at any cost. I feel that this legislation should be considered against a background of the possible consequences of a departure from those principles of common law that have grown up and have been1 proved to be soefficacious in. our life and from which I think we should depart with grave caution. That departure must be given every consideration. For the reasons I have outlined, I feel that this measure should be given every consideration at every stage of the debate.
I think Senator McKenna contributed greatly to this debate in his speech, to which I listened with great interest. This is not a measure which attracts any party political affiliation, or problem; it is one which I think can be fairly debated on its merits. There are many merits in it, and many grave problems. Senator McKenna tackled those problems with his usual efficiency and thoroughness. It will be recalled that the honorable senator spent the first portion of his speech in discussing the merits and demerits of the measure so far as it related to the adoption of the Warsaw Convention and the Hague Protocol. I shall not traverse his observations in that respect. He very adequately covered the proposed adoption of the Warsaw Convention and the Hague Protocol when dealing with the international aspects of this measure.
He could see nothing in any of the aspects of the complicated convention and protocol to condemn, and in fact he accepted the convention and protocol in toto. To use his expression, we must either accept them all or reject them all, and he very wisely accepted them all, because the international aspects of this matter - I- think that Senator McKenna would: agree with me - represent a great step forward in respect of damage and compensation for injury in relation to international air travel.
The only point that I wish to make in regard to the convention and the protocol is that, having set a pattern and’ a standard of liability per medium of that protocol, I suggest that the principles of the protocol must have some bearing on the national implications of this measure. In other words, if we accept the protocol internationally we must, to a very large degree, accept the principles that it embodies so far as we in Australia are concerned, in regard to both interstate travel’ and intra-state travel. T shall refer to that aspect of the matter in the course of my remarks.
The bill before us, Sir, seeks to do several things. -In the first place, and most importantly, it waives .the obligation of an injured passenger, or the representative of a deceased pasenger, to prove negligence. That is an important innovation, and to that extent, of course, it affects the principles of common law to which we are so accustomed in regard to such claims. Secondly, it imposes practically - I use that word advisedly - an, absolute liability on the airline carrier for payment of limited damages for either death or personal injury. That is a unique provision so far as airlines are concerned. Thirdly, it limits the liability to a total of £7,500. In addition - and this is something to which Senator McKenna did not refer - through the operation of clause 31, it will enable a passenger, by way of contract with the carrier, to exceed the amount of total liability, or potential total liability, payable by the carrier to any amount in excess of £7,500, such sum being specified in the contract of carriage.
Another important feature of the legislation is that it does not, except with respect to Trans-Australia Airlines, relate to damages in respect of injury or death of a person during any flight intra-state. That, of course, is an important matter, and it was referred to by Senator Laught. In other words, this measure will not be completely satisfactory until and unless its provisions are accepted by each State, so that intrastate flights follow the pattern adopted by this legislation. I suggest that the Minister, in his customary efficient manner, will no doubt proceed, if this bill is passed, as I expect it will be, to get in touch with the States to ensure that each State adopts similar legislation. That is most important so far as we in Western Australia are concerned, because as everyone knows, Western Australia is a big State and there is a lot of intra-state air travel. This measure does not affect flights such as those from Perth to Wyndham, a distance of some 1,500 miles, and there is no comparable legislation in. Western Australia at the moment to afford any measure of assistance to passengers who are either injured or killed during such flights,
I return to Senator McKenna’s argument and to his proposed amendment, in which he .seeks to obtain the withdrawal of the measure and to have it amended so that the .general principles of unlimited liability at law for negligence will be incorporated in it over and above the £7,500 limit that is now prescribed. Here, I join issue with Senator McKenna and I shall very briefly give my reasons for doing so. Senator McKenna, in short, seeks to amend this measure so that a passenger, or the representatives of a deceased passenger would have the right to sue for damages and try to prove, through an affirmation of negligence, unlimited liability, irrespective of the present provisions of the act. The honorable senator argued - I think I am quoting him correctly - that it was not difficult in Australia to prove negligence in the case of airline accidents. That is the point on which I differ from Senator McKenna.
– And a very powerful point, too.
– Yes. I suggest, with great respect, that it is most difficult to prove negligence in a civil court in respect of death or injury of a passenger in the proceedings that are usually taken arising from an accident. The causes of accidents are quite frequently found by coronial investigation or departmental investigation. They are very succinctly stated in the records relating to such accidents and are there for the world to see but I suggest to Senator McKenna that never yet has it been established satisfactorily, in regard to an accident in Australia, whether or not it was caused by an element of negligence that would be compensable under our common law. It may be quite clear why an accident occurred, but it is never clear, I suggest, that the cause of the accident had anything to do with the law relating to negligence.
I join issue with the honorable senator in regard to this matter because in many cases it is most difficult to prove whether or not there was negligence. We know that engines fail, but we do not know why they fail, and the onus is always on the unfortunate plaintiff to establish negligence at law, as the honorable senator well knows. I suggest that it is most difficult, in the majority of cases, to prove that as a matter of law. Let us assume that the honorable senator is right. Even if it were easy to prove, I think he will agree with me that there would be many borderline cases, in which the unfortunate passengers, or the personal representatives of deceased passengers, would be put to the obligation of attempting to prove negligence, an obligation from which this legislation absolves them.
Of course, Senator McKenna did not refer to the important provisions of clause 31 of the bill. I suggest that if that is read in conjunction with my present remarks it cuts the ground from under Senator McKenna’s objection somewhat, because although there is not a limitation of liability up to £7,500, there is an unlimited liability for any amount specified in the contract of carriage provided, of course, that the passenger and the carrier come to some arrangement - for a consideration, quite naturally - in regard to the increased potential liability. I suggest that clause 31 (1.) gives every passenger the right to vary the amount of £7,500 up to any amount that he likes, subject to the concurrence, of course, of the carrier company and that increased amount - and this is the point - does not obligate the passenger to prove negligence in any respect whatsoever, so that there is an additional advantage in this bill compared with the amendment suggested by Senator McKenna.
I suggest that Senator McKenna’s amendment does not go as far as the present measure actually does. He wishes to give passengers the right to proceed by way of action at law for unlimited liability provided they can establish negligence as an element of the action. Clause 31 gives the passenger the right to get as high a potential figure as he wishes, subject to the concurrence of the carrier company and to the payment of what would be a very obvious premium on the fare. So, Senator McKenna’s objection, I suggest, has somewhat of an airy-fairy conception when one relates it to clause 31 of the bill.
Very wisely, the bill sets some limit to those people who do not wish to carry heavy cover. There is, of course, the right of any passenger, irrespective of clause 31, to take out additional insurance against his being killed or injured in an aircraft accident.
– Do you mean by arrangement between the passenger and the airline operator?
– My interpretation of clause 31 is that it means that any passenger can go to an airline company and increase the amount of £7,500 by mutual agreement with the company for the con sideration of an additional premium that would be prescribed probably by regulation after discussion with the various companies.
– Such amount as is specified in the contract.
– Yes; 1 suggest that the air ticket might bear the endorsement, “ The potential liability of the company is increased hereby in consideration of an additional premium of so much to X thousand pounds “. I think that would be a far better arrangement than that envisaged by Senator McKenna’s amendment, because the amendment is based upon the obligation of the unhappy passenger to prove negligence. And as I have already tried to show, negligence is very difficult to prove in an aircraft accident - far more difficult, I suggest, than in a road accident. Therefore, I do not think there is a great deal of merit in the suggested amendment.
I think that the bill is quite well drawn as it stands, for a very good reason. This is my final point in regard to the proposed amendment. You cannot have your cake and eat it too. Senator McKenna is asking for an absolute liability for a limited sum of £7,500, and he then seeks to give the passenger the common law right to ask for further damages provided he can prove negligence. I suggest that that is having it both ways. Either Senator McKenna should say, “ Let us waive the provisions of the present act in relation to unlimited liability or unproved damage liability up to £7,500, or alternatively incorporate a provision giving the passenger the right to prove damage of an unlimited quantum “. I suggest you cannot have it both ways.
I also mention in passing that Senator McKenna is asking the airlines, from their very meagre profits, to accept unlimited liability, when they alone of the members of the transport system in Australia are at present accepting any form of obligation to their passengers. The railways of Australia accept no liability - none at all. The shipping companies accept none. There is nothing like this in any act of Parliament in relation to carriage by rail or carriage by sea. Senator McKenna is now asking the airlines to accept this burden of an unlimited liability, to be payable out of the meagre profits of the airlines. I put that to him because
I feel, having regard to the profits the airlines are making, which are not great, the airlines are accepting a very high degree of responsibility per medium of this legislation.
– What is the principle governing the limitation of the liability of public authorities?
– We are altering the principle here.
– But what is the general principle?
– It is based on the law of negligence.
– Is it not also based on the fact that their wealth can be more easily attacked?
– That is one of the principles. I suggest that the airlines are not as wealthy as the State railways. I do not think there is merit in Senator McKenna’s amendment in the light of these aspects.
I shall now move to another provision of the bill which has provoked a good deal of thought in my mind and also, I think, in the minds of other honorable senators. There are many things in the measure which call for comment, but I have not sufficient time now in which to discuss them all. I feel that the principles of the bill will have to be tried in the testing grounds of the courts before any person can be dogmatic as to the real meaning or the real merit of many of the provisions of this legislation. For example, clause 28 provides -
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier-
I pause here to mention that there is no definition of “ carrier “, and it is not clear whether the expression also includes an agent or an employee- is liable for damage sustained by reason ot the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
That, of course, is the all-important clause of the measure, and I invite the attention of the Senate to the meaning of the clause, with particular reference to the meaning of the word “ accident “. There is a fairly precise and, I say, narrow definition of liability here which is, I think, fairly easy to understand, but I doubt personally whether it is intended to have that narrow meaning. The word “ accident “ means what it says. That is rather begging the question, because I shall show that in courts of law the word “ accident “ has a variety of meanings. I pose this problem to the Senate: Does the word “ accident “ include a set of circumstances as follows: - A person who has a heart condition boards an aircraft and, due to flying at high altitude, he has a seizure and dies. Is that an accident within the meaning of this legislation? Again, let us consider the case of a person who boards an aircraft, turns on the cold air current and then goes to sleep, wakes up with a stiff neck, perhaps contracts pneumonia and dies. Is that an accident within the meaning of this legislation? These are important aspects arising from the interpretation of this clause.
– In view of the fact that the liability is absolute.
– Exactly. I doubt whether the two illustrations I have given would be regarded as accidents by courts of law, but we must not regard this legislation merely as a means of providing compensation to injured persons or dependants of deceased persons involved in an aircraft accident. Fortunately, such accidents are rare. Trans-Australia Airlines has carried 7,000,000 passengers without a fatality, but quite a number of claims for compensation as a result of personal injury not amounting to death could arise. Such cases will attract even more difficulties in proof than will instances of death due to the crash of an aircraft for causes unknown.
I turn now to proposed section 34, limitation of actions, which provides that an action must be commenced within two years of the date of injury or death. In many cases it is impossible to ascertain within two years whether an injury arising from an accident will have a permanent effect. Sometimes many years elapse before doctors can decide whether a person will be permanently incapacitated as a result of an injury. Let us consider the case of a man who suffers an injury to his arm as a result of an aircraft accident. A number of operations may be necessary, and the doctors may be quite vague as to whether there will be any permanent injury or incapacity. In such circumstances the proposed limitation of two years should be modified to allow that person sufficient time to ascertain whether his injury will have a permanent effect before he commences his action. If such a modification is not made, the person will be compelled to go to court, and probably will be unable to prove the full extent of damage arising from the accident. These are matters which I could discuss at some length. I mention them merely because they are of such importance and such interest as to warrant discussion.
I put my observations to honorable senators in the hope that some debate will ensue as to the merits of this proposed legislation which, to my mind, is important :11: revolutionary and a departure from any previous measure. On the balance, this legislation has a great deal to commend it, and the Minister should be congratulated on his courage in introducing it. It provides that great benefit will ensue to any person who might be injured or otherwise incapacitated as a result of an aircraft accident, and now, for the first time in our history, we are making some attempt to bring this about. The only similar piece of legislation on the statute-book relates to the operations of T.A.A. which, many years ago, was obliged to accept ‘the responsibility of a common carrier up to a maximum amount of £2,000 per person, but that legislation was meaningless because T.A.A. had the right to contract itself out of the obligation. As Senator McKenna has said, the passengers were required to prove negligence. Although that piece of legislation was not of great moment, it was a start. The Labour party took the first step, and we. are now completing the job subject, of course, to a series of amendments that probably will take many years to formulate in the light of court decisions.
This is an excellent piece of legislation and something that is badly needed. We are indeed fortunate that we have not had any fatalities in Australia as a result of aircraft accidents because, if such fatalities had occurred, we would not have had any legislation providing for payment of compensation to the injured parties, or their dependants. We would have had to answer for our deficiency. Thank goodness, we have seen the light and now have before us this piece of legislation of which we can be proud. Accordingly, I support the measure.
.- I support the amendment proposed bySenator McKenna during the course of his speech on the second-reading debate of the Civil Aviation (Carriers’ Liability) Bill. The section of the proposed legislation dealing with Australian domestic air services should be introduced as a separate measure.. In his second-reading speech the Minister for Civil Aviation (Senator Paltridge) saidthat the section to which I have referred could become an example and a model for other countries of the world to follow. Many of the countries that are signatories to the Warsaw Convention of 1929, and the eleven or more others which have alreadyratified the Hague Protocol will look to this measure as an example when the matter is before their own parliaments. That beingso, a mistake has been made in incorporatingthree different matters in this one bill. I contend that the ratification of the Hague Protocol should be a separate measure. To. amend- and modify the Warsaw Conventionof 1929 so as to bring it up to date is a veryimportant step, but these matters should be viewed in the light of the new era in international civil aviation that has dawned since the Hague Convention was drawn up.. The agreement that was reached by the 44 countries at the Hague in 1955 was most, gratifying, and I am sure we all sincerely hope that the principle of solving problems by agreement will extend to other fields’. It is through agreements that international problems can be solved with proper understanding, and it is interesting to note that, as a general rule all nations have shown, a desire for agreement in matters pertaining to aviation. The Hague Protocol carries on the tradition that has been more or less the guiding, principle in connexion with inter’ national agreements, on civil aviation.
I do not think any one will disagree with the terms of the protocol which this bill, seeks, to ratify. Except for a few minor alterations found necessary to meet modern trends, the bill is designed to increase the amounts payable to passengers on interna^tional air routes- who. meet with an accident. Although the proposed limit is higher than that obtaining now, I feel that it is still not high enough. That part of the bill which repeals the Carriage by Air Act 1935 has been thoroughly explained by previous speakers. The important thing to remember is that almost every aspect of flying has changed considerably since that act was passed; and it is the responsibility of the Commonwealth Government to ensure that airlines operating more or less under the surveillance of the Department of Civil Aviation from Commonwealth constructed airports and along routes serviced by the Commonwealth Government accept their liability to passengers for fatal accidents or for injury, or for loss of goods or baggage. The Minister pointed out that at the moment domestic airlines, other than Trans-Australia Airlines, are free to contract out of liability for damage suffered by passengers and consignors of goods even though such damage may have resulted from serious acts of negligence on the part of the carrier or his servants or agents.
The proposal put forward by Senator McKenna is that a maximum liability of £7,500 should be borne by the airlines, but, in cases where negligence can be proved against the airline, the dependants of a passenger who may be killed should have the right to seek higher compensation. After all, the owner of a motor car is required to take out compulsory third party insurance when registering his vehicle to cover liability for damage caused by his negligence. The court decides the degree of negligence in the case of accidents. Recently, the limits have been increased to amounts greater than £7,500. I submit that the same principle should apply under this legislation. I suggest that the £7,500 should be the basic responsibility, regardless of whether death or injury was caused by the negligence of the airline or its servants or agents and. that in cases of culpable negligence and in cases where severe hardship is caused to the dependants of a person who has been killed there should be the right to apply to the court for something in excess of £7,500.
It is interesting to note that at the moment domestic airlines other than Trans-Australia Airlines do have on their tickets a condition by which they contract themselves out of liability. Whereas a passenger is automatically covered to the extent of £2,000 by
Trans-Australia Airlines, the cover given by Australian National Airways was £1,000 for the loss of each eye or limb, with a maximum liability of £2,000, and, in cases of other injury, either permanent or temporary, £10 a week for a maximum of 52 weeks. Trans-Australia Airlines gave passengers cover to the extent of £20 a week for a maximum of 100 weeks for permanent or temporary disablement. This bill contains no such scale, but I believe it should be mandatory on airlines to cover passengers for either temporary or permanent injury to the extent of £7,500 and that the passenger or his relatives should have the right to apply to the courts for greater compensation in certain cases.
Air travel has become part and parcel of our everyday life. With the vast numbers of passengers travelling by air, and the tight and accurate schedules maintained by the various airlines, flying has become less hazardous than travelling on many of our highways. I submit that it is the responsibility of the airlines to give the passengers using their services cover at least equal to that enjoyed by passengers on ordinary bus services running between the capital cities.
It is also interesting to note that the bill makes no provision for intrastate transport. The Minister says that is a matter for the States themselves. Persons flying between Hobart and King Island, Flinders Island or the north-west coast of Tasmania, should be covered by the airline concerned, whether it is operating intrastate or interstate. The fact that an airline travels intrastate in the course of an interstate journey may be used as an argument in support of the contention that the State concerned should have looked after the insurance of the passengers. I believe that that is an anomaly which should be corrected. Intrastate passengers also should be covered.
– But, on the other hand, intra-state pasengers are not deprived of the right to recover - if they can prove negligence.
– That is true, but, from the point of view of insurance, the intra-state traveller should be in the same position as the interstate traveller. The honorable senator knows very well that when one leaves Hobart in the morning md travels to Launceston one is an intra-state traveller, but that when one travels on to Melbourne or Canberra one becomes an interstate traveller. I suggest that there is no change, during any part of that journey, in one’s evaluation of one’s life.
– I am not disagreeing with you. I am merely pointing out that the difference between State and Federal law creates both advantages and dis.advantages.
– The Queensland example, to which attention was directed earlier in the debate, should have prompted some action by the Government to bring intra-state travel under this bill. I understand that Ansett-A.N.A. has been given certain concessions to enable it to widen its field of intrastate travel. I regret very much that, increasingly, the responsibility for developing feeder services is thrust on the shoulders of Trans-Australia Airlines. Unfortunately, T.A.A. builds services to such places as outback Queensland, and, having made them lucrative, then finds the other airlines coming in. Participation should also carry with it a responsibility to provide insurance for passengers.
– T understood that the pioneering work was largely done by T.A.A.’s competitors.
– A big change has taken place. Perhaps the honorable senator has not caught up with it yet. We read in the Tasmanian. press that the new Electras will wipe other aircraft out of the sky. Honorable senators are familiar with the story of the Viscounts and the Electras. f do not disagree at all with the ratification of the Hague Protocol. I believe that it is most important that all the countries over which international aircraft operate should have a common denominator in these matters. I believe that another important step forward is the act of bringing to the notice of the domestic airlines the fact that “they have a responsibility to cover their passengers, rather than contract out of insurance.
T should like to see the different facets of this bill separated, so that it could become a model for other signatories to the convention. At present other parliaments will say: “ Ten countries have already signed. This is the legislation that was pre.sented in the Australian Parliament. Unfortunately, it contains domestic matters in addition, to the provisions relating to the ratification of the Hague Protocol.” I sup port the amendment of the Leader of the Opposition, and hope that the remaining 33 countries will ratify the protocol at the earliest opportunity.
.- I rise to support the bill and to oppose the amendment of the Leader of the Opposition. At the outset, I should like to congratulate the Minister for Civil Aviation (Senator Paltridge) upon the herculean task that he and his department have undertaken - even though there may be one or two clauses which are less than perfect.
The bill reflects the greatly increased importance that air travel has assumed in our lives. It is interesting to recall that it is less than 50 years since Bleriot flew across the Channel. In that time, as a result of what this bill calls “ international carriage by air “, it has become necessary to undertake some codification of the rights of passengers as against the air carrier. With the globe rapidly shrinking as a result of the great speed of prop-jet and jet aircraft it is more than ever essential that law, and not chaos, shall prevail.
I have been indebted to the careful exposition of the bill given by the Leader of the Opposition (Senator McKenna), but I am unable to support his amendment. The necessity for ratifying the Warsaw Convention and the Hague Protocol is, of course, obvious - so that Australia may be a mutual sharer in the benefits which that form of legislation provides. I think that the necessary division of the bill into those parts to which the Warsaw Convention applies without protocol, and those to which the Warsaw Convention applies with protocol, has made legislation somewhat cumbersome, and perhaps a little difficult for a simple lawyer like myself to follow in all its intricacies.
The first interesting aspect of the legislation is the introduction of a form of virtually absolute liability for damage resulting in death or injury to a passenger. I cannot understand the view of the Leader of the Opposition. He has been a practising lawyer and must know that there are very great - sometimes insuperable - obstacles in the way of proving negligence. There are times when the mere fact that the plaintiff has to prove negligence is sufficient to dissuade him from embarking upon projected litigation.
– It would also cost him a great deal of money.
– I do not object to that aspect of it. Perhaps we may take a simple example of what I mean from our aerial history. It would have been extremely difficult for the relatives of the unfortunate people who were carried in the “ Southern Cloud “ to establish negligence against the operating company. We must take into consideration the old law proposition that negligence involves the breach of a duty or care owed to a person. Damages will flow in common law actions only where the plaintiff is able to establish first, that breach of duty has taken place and second, that as a result of that breach of duty damage has been suffered by him. I am pleased to see that this heavy burden has been removed from the prospective plaintiff in cases which may be brought under this legislation. I think, however, it is necessary to direct the attention of honorable senators to the fact that this provision for the payment of £7,500 in damages is by no means an insurance policy. The sum of £7,500 in damages is the ceiling when it can be proved that damages have been suffered by a plaintiff or by his dependants. To consider the practical results of that provision, take the case of a wife and mother who is killed in an air crash. It may very well be that under this legislation the husband and children would be entitled to absolutely nothing because the wife had no economic value. In those circumstances, the benefit which the bill may have intended to confer upon the family of such a person may be worthless.
Clause 35 (3) makes the position perhaps a little more obscure than it would be if the clause did not exist. It reads -
Subject to the next succeeding sub-section, the liability is enforceable for the benefit of such of the members of the passenger’s family as sustained damage . . .
The operative word is “ damage “ - . . by reason of his death.
In sub-clause (8), a very interesting legal proposition is involved. The sub-clause provides -
In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger.
I expect that in the committee stage the Minister will explain the principle underlying that sub-clause. It may very well be that he intends that in this legislation we should depart from the barbarous principles laid down in Lord Campbell’s act. It may be that he intends that in the case of the death of a person such as a mother who, speaking economically, may have no value, but who, in truth and in fact, is irreplaceable, some solatium should be paid to the members of the family who suffer loss and bereavement. If that is the intention of the legislation, I commend the Minister for it, because for a long time now I have felt that the principle that only economic loss can be considered in an action for damages is one of the most unfortunate principles which statute law and precedent law have established.
I turn now to the clause in which the Minister has dealt with cases of deliberate and culpable negligence. It is provided that there shall not be - of course there should not be - any limit of liability where an injury is caused by the deliberate act of the carrier or his servants or agents. It is almost inconceivable that that type of action would take place, but it is right and proper that, if the almost impossible should happen, the legislation should be able to take care of it.
Article 17 of the Warsaw Convention remains unaltered in this legislation. Clause 18 is the relevant clause of the bill. It puts a heavy onus on an airline operator, which is almost the same as an absolute liability. I have some doubts as to whether the defence provided in Article 20 of the Warsaw Convention is as narrow as has been suggested to the Senate. The wording is a fairly common type of wording used in both State and Federal legislation. This type of defence has frequently been availed of successfully in other types of litigation.
– Can you give an example?
– 1 am thinking of prosecutions under the Victorian HealthAct. If you can show, in regard to milk, for example, that you have taken all reasonable precautions, you are not liable if thebutterfat content is not up to standard..
I give that only as an example. I cannot think of a more precise and accurate example at the moment.
Under Article 21, which is embodied in this legislation, a carrier has the right to plead contributory negligence. That, of course, is right and proper. Until a few years ago, in most of the States it was open to a defendant in an ordinary common law action for damages arising from a road accident, for example, to raise the defence of contributory negligence. In those cases, unless the plaintiff could show that he was absolutely blameless in regard to the occurrence, he did not recover anything. Then the various States amended their acts so that if a plaintiff were injured and some proportion of the responsibility for the accident attached to his own actions, the quantum of damages which he could recover was assessed in the absolute and then was reduced by the percentage to which his own activities had brought about his injury. That principle appears to be embodied in this legislation, and I believe it to be a thoroughly good one.
On the question of the different amounts which persons might recover, I can envisage some rather interesting examples. When I say I can envisage them, I do not mean that I am looking forward to catastrophes. Let me cite the hypothetical case of an aircraft flying from Victoria to South Australia - an interstate flight. The carrier would be bound by the domestic provisions of this legislation, but if litigation ensued interesting results might follow. One injured person might bring his action in the Victorian Supreme Court, where the law provides for the use of a jury in civil actions. Another person might be injured just across the border, and he would be compelled to bring his action in South Australia. In the Supreme Court of South Australia the right of trial by jury is not available in civil cases. The result could very well be that although two people had suffered substantially the same injuries, there would be a wide disproportion in the quantum of damages awarded.
– Would not the claim be made in the State where the carrier had its headquarters?
– In the case of air accidents it may be somewhat difficult to determine the exact place where the injury was suffered. A person might be injured as the result of being buffetted inside an aircraft, or something of that nature.
I was unable to appreciate Senator McKenna’.s difficulty in regard to the enforcement of judgments, because I should have thought - I speak subject to correction - that the normal processes of enforcement and sanctions under the Commonwealth Judiciary Act would obtain and that, to the extent to which we are capable of enforcing judgments in the case of domestic claims, the methods of execution provided by that legislation would apply to this as to any other Commonwealth legislation.
I feel that the amendment which Senator McKenna has proposed may not have been submitted if he had considered carefully the full wording of clause 31, which allows a domestic contract of carriage to be increased beyond the limit of £7,500 -if the passenger at the time of taking out his ticket feels it desirable so to do. From a practical viewpoint anyhow, the cost of airline insurance is so small that a prudent passenger who feels he should take out additional cover for his dependants can usually take out adequate insurance at the airport.
– Would that extend to a contemplated extension in terms of absolute liability, or only to provision for negligence?
– As I read the bill, I should think so.
– An extension purely in terms of absolute liability?
– That is my reading of the clause as it is.
– I would suggest to both honorable senators that it is all subject to the power to make regulations.
– I would not quibble over that, because the final clause in the measure gives the right to make regulations. The bill contains one clause which I think is unusual in similar legislation, but which I commend to the Senate. I refer to the provision in clause 29 that where baggage is lost on two airlines the loss and damage is to be shared. I cannot help repeating, so the Senate will accept the proposition, that very often difficulties of proof are far more important than are substantive rights. If one has baggage on two airlines and cannot prove which of the airlines lost it, it could be very awkward from the viewpoint of proceeding with the claim.
The bill also provides that other life inrsurances which a prudent passenger may take out are not to be taken into account in assessing the loss and damage which his dependants have suffered in the case of his demise or by himself in the case of injury.
Senator Vincent adverted to a matter which is of practical importance, lt is dealt with in clause 34, which places a two-year limitation on the bringing of an action. Despite the fact that that is the time provided in the Warsaw Convention, I, as a solicitor, feel that as a matter of practice it may very well involve considerable hardship. First, there is the question of the state of health of an injured person. He may well be in hospital for twelve months and it may be some time before he takes the fairly important step of embarking on litigation of this kind. If the Minister and his advisers reconsider the position, 1 suggest that a minimum period of three years would, be more just. Although I am not prepared to- say that for that reason I shall not support the bill, I personally would prefer, as a matter of practice, to see the period extended to three years.
Short of particular statutory provision, the Statute of Limitations used to provide for a limit of six years in actions for damages. Certain public authorities which were not protected by statute found themselves receiving claims many years after the cause of action had arisen, and it was grossly unfair to put them to a defence of those matters. Even in the case of motor car accidents, it was open for a claim to be brought as long as six years after the actual occurrence. There has been some pruning down of that time. For example, in Victoria now, in the case of road accidents only and not in the case of other actions for negligence or damages, the time limit has been pruned down to three years from the time at which the collision took place. That is one aspect of the matter that T hope the Minister will look at.
The only other two points I wish to raise are minor ones. I note that clause 42 (1.) deals with the position of a stowaway, which is something mat I assume is fairly rare in the case of aircraft. But quite obviously, one cannot direct a nian to get off an aircraft at a height of 20,000 feet. It is therefore right and proper that even a stowaway should be given some immediate protection and the operator’s liability restricted so that they are in no worse position than if the stowaway were a paying passenger.
The other small matter is this: Like Senator O’Flaherty,. I feel that some of the unfortunate language of the original protocol causes confusion in the mind of the normal person. If one looks at paragraph 2 of Article 1, at page 16 of the bill, one finds reference to a high contracting, party. There are references also to international carriage, and even to a single high contracting party. The whole thing reminds me of Gilbert and Sullivan’s “ Mikado “, with the Lord High Executioner and the like. I acknowledge the difficulty with which the Minister is confronted, because he is seeking to import into the measure words that were laid down 24 years ago at the first of these great national congresses. I share the hope expressed by other honorable senators that in the fulness of time when this legislation, which I thoroughly commend to honorable senators, has been put into effect and when other nations have accepted the convention, we may see a civil aviation act in which all the matters dealt with will be described in terms familiar to and used by our own parliamentary draftsmen.
In conclusion, I should like to repeat my expression of indebtedness to the Minister for the long notice he has given us, and for the opportunity to express our points of view even though they may not agree strictly with the departmental viewpoint.
– I intrude at this late stage of the debate only because of one or two comments made by Senator Vincent and Senator Hannan. I wish to put forward certain matters in the hope that the position will be made clear when the Minister replies to the debate. I wish to deal, Mr. President, with this matter of unlimited liability, which we on this side think should be incorporated in the bill so that an injured person, or the representatives of a deceased person, would have the right to proceed against the negligent party.
Senator Vincent made the point, which I did not quite understand, that reports of air crashes never establish that there was negligence on the part of the operators, and that the findings are inconclusive, as it were. Senator Hannan defined negligence clearly. There is a duty to take care. As 1 understand it, all people including doctors, lawyers and auditors, are bound by ordinary law in this matter of negligence. I propose to quote, rather sketchily, perhaps, from the report of the Air Court of Inquiry into the air accident at South Guildford, in Western Australia, on 2nd July, 1949, when eighteen people lost their lives. The point I am trying to make is that I should think that anybody who was trying to prove negligence in respect of that aircraft accident would produce this report in court as at least prima facie evidence of negligence, not only by MacRobertson Miller Airlines Limited but also, to a lesser degree, by the Department of Civil Aviation. I wish to put my thoughts before the Senate, because I have been intrigued by the discussion that has taken place to-night.
The lawyers on the Government side of the chamber have said repeatedly that it is very difficult to prove negligence in the case of an aircraft accident. I appreciate that after there has been a crash and people have been killed, it is difficult to say what happened. That is why we all agree that as much as £7,500 should be payable without any proof at all, As a layman, it is difficult for me to understand why, if I were to fall out of the airlines ‘bus on the way to Guildford, or if some one knocked me out, my widow could sue for unlimited damages, but if I happened to be climbing up the gang plank of the aircraft and fell off, all I could get would be £7,500, a completely inadequate sum for a person who left a family behind him.
The South. Guildford disaster, in which eighteen people lost their lives, was investigated by a body which consisted of reasonable and intelligent people. At page 6, the report of the court deals with the question of the competence of the captain, whose name I do not propose to mention. The report states -
In fact he was an indifferent pilot, but the court places it on record at this early stage that the evidence is inconclusive to prove whether he was responsible for this accident.
I underline the fact that he was an indifferent pilot. I turn to the question of loading. I always understood that the loading of an aircraft was a very important task. Dealing with the person who was loading the aircraft, the court stated -
He has no particular skill, and the court is satisfied he does not understand the technical significance of the proper loading of an aircraft.
He had been employed for three months, at the date of the accident.
Later in the report, there is reference to “ possible misuse of the automatic pilot “, and the following statement appears -
All that can be said in this case is that the behaviour of the machine was consistent with the sudden engagement by the captain of the automatic pilot prior to attaining the proper attitude and height.
The report goes on to state that it cannot be proved that that happened, but that the sudden jerk of the aircraft suggested that it possibly could have happened. I come now to the part of the report entitled “ Possible effects of improper loading “. The report states -
The court has already found that this aircraft was improperly loaded so that the centre of gravity was between 2 per cent, and 4.7 per cent, aft of the permissible rear limit MA.C.
T do not know what “ M.A.C. “ means, but the Senate will note the statement that the court had already found that the aircraft was improperly loaded. Next, I come to the matter of the competence and qualification;: of the captain. I again emphasize that eighteen people lost their lives in this accident. This was not just the crash of a freight plane. The report states -
To this end regulations are framed which have international significance to ensure the safety of the aircraft and the competency of those who service it and who operate it. The court is of the opinion that (the captain) should not have been promoted by the company to the position of captain . . .
It goes on to state that during his Royal Australian Air Force career he was described as “ below average “. Later, the report states, in reference to his attendance at a flying training school -
On completion of the advanced training section of the course at the same school there is no record in his log book of any assessment. The assessment sheet would appear to have been fastened in the book at some stage, but it was missing from the book as it came before the court.
Dealing with the question of taking off under the conditions in which the plane took off at the time in question, the court stated -
It is probable that there was only one occasion when he took off at a time approximating the time of taking off on the night of the accident and when the conditions might have been similar to those obtaining on that night.
At that stage, tha pilot had had 420 hours’ flying time.
The court stated in the report that the chief pilot had noted, in reference to the captain -
Uses artificial horizon wrongly. Adjusts miniature aeroplane level with horizon, but for all attitudes, that is to say, climbing, level and diving, claiming that this was the correct way.
The court went on to state -
The lack of elementary knowledge concerning the artificial horizon should have been sufficient to debar (the captain) from being placed on the aircraft until such time as he exhibited proficiency in this phase. Moreover, it called for inquiry into other matters involving a knowledge of the technique of (lying. When his whole record is considered it is doubtful whether (the captain) was a suitable person ever to be made captain of a passenger aircraft.
In relation to the servicing and maintenance operations and overhaul, the court stated -
The court is satisfied on the evidence before it that in fact the sketchy notes glued to boards were the only references utilized in practice by the ground staff. This leads to a looseness in maintenance standards and, if illustration be necessary, reference might be made to the evidence of-
One of the other witnesses. On the question of loading procedures, the report refers to the obviously untruthful account given by one of the witnesses in his evidence on this vital point.
T have quoted at length from the report, Mr. President, to refute the contention that it is difficult to prove negligence in respect of air crashes. Surely, if the lawyers who have been speaking on this subject to-night were briefed to appear for the representatives of some of the people who were killed in the South Guildford crash, this report would be the first thing that they would place before the court. To say the least, it is prima facie evidence.
– Most of it is inadmissible.
– I expected some comment of that kind. Would1 not you prove your case by direct evidence? I am not saying that the report is conclusive, but surely, had the honorable senator been briefed to appear before the court for one of the plaintiffs, he would not have overlooked evidence of that kind.
Senator Vincent made the point that you cannot have your cake and eat it too, meaning that you cannot on the one hand demand the £7,500 without any court action and, at the same time, have access to the court on a tortious action for unlimited damages. I do not quite understand the force of that argument. At the penultimate page of the report, the court comments on the question of damages. In the light of the amendment proposed by Senator McKenna, one might almost think that the honorable senator had written this section of the report.
Hie PRESIDENT (Senator the Hon. Sir Alister McMullin). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
– I want to come to what I think deals with the whole crux of the matter this evening. Far from the supporters of the Government throwing up their hands in horror and saying, “You cannot have your cake and eat it too “, on the question whether there could be provision up to £7,500, and an application could be submitted to a court for amounts in excess of that sum, this is what the Court of Inquiry had to say -
The insurance should be without prejudice to the right to sue the operator for any damages in excess of the amount insured in the event of tortious liability being proven.
That is precisely what we have put in our amendment. The report continues -
Alternatively it is suggested that the law be amended to provide that whenever injury is sustained by a passenger in the course of carriage in an aircraft the onus of disproving negligence on the part of the operating company shall lie on the company.
It seems to me that this report completely refutes the arguments that have been advanced against Senator McKenna’s amendment. At least, there is some evidence to suggest that there was negligence on that occasion. In order to complete the record, I mention that this paragraph also appears in the section of the report concerning flight instruments.
The disregard of regulations of this nature is sufficient, in the opinion of the Court, to call for drastic and immediate ‘action by way of cancellation or suspension of the airline licence held by the operator.
I do not think you could get a much more damning indictment than that, contained as it is in one of the first reports that was dealt with by this Government when it came to office in 1949. I suggest that the court made exactly the same recommendation as Senator McKenna has made here this evening. I repeat that I cannot for the life of me see any difference in this respect between the case of a person who falls out of a motor car on the way to the airport and is killed and that of a person who is killedin an aircraft accident. An action for unlimited damages may be instituted in respect of a person who falls out of a motor car and is killed. An aircraft accident is much more drastic because rarely are there any survivors.
Consequently, the negligence is much more serious. After all, negligence by a professional man can conceivably cause great financial loss, but very rarely, except in the case of doctors, does it result in death. Although all the lawyer members of the Senate, except one, have spoken on this measure, I look forward to hearing the Minister’s comments, because I cannot understand why the Government is resisting the amendment. What is the Government afraid of? If negligence in the case of aircraft accidents is so hard to prove, why does not the Government accept the amendment and leave the matter to the courts?
– I rise to support the bill. I wish to thank the Minister for Civil Aviation (Senator Paltridge) for his comprehensive second-reading speech, and also the Leader of the Opposition (Senator McKenna) for his very lucid discussion of the bill. In the course of this interesting debate, I have learned a little; and before it is finished, I hope to learn a great deal more. I therefore ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
Senate adjourned at 11.5 p.m.
Cite as: Australia, Senate, Debates, 11 March 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19590311_senate_23_s14/>.