25th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
page 545
– I direct my question to the Minister representing the Minister for Labour and National Service. What is the reason for the secrecy regarding announcements of the dates of the birthdays of those liable to be called up for national service training?
– 1 seem to remember that the reason has been given by the Minister for Labour and National Service in another place, but I do not have it in my mind at the moment. I will get it from the Minister and give it to the honorable senator, or, if the honorable senator cares to put the question on the notice paper, I will get a rapid reply for him.
page 545
– Has the Minister representing the Minister for Civil Aviation seen the front page report in last Friday’s edition of the Adelaide “ News “ that a $i million enlargement plan is scheduled for the Adelaide airport? Did the Minister for Civil Aviation make an announcement to this effect? Has a decision been reached by the interdepartmental committee referred to by the Minister in answer to my question on this matter last August? Is it true that the Minister will examine the airport during the coming recess? Does he expect to make some announcement then? Will he take into account the substance of submissions made by Government senators from South Australia and give consideration to the original plan, which provided for a new and adequate terminal building in an area to the south east of the present structure?
– Answering the last part of the question first, I should say that the Minister for Civil Aviation naturally will take into consideration the submissions and representations of Government senators, and indeed of all honorable senators and members of Parliament, on this matter. It is in the nature of things that he should do so, and I am sure that he will do so. The honorable senator asks whether the Minister has made some announcement relating to the Adelaide airport terminal. My understanding is that he has not made any announcement about it but that he has indicated that, as soon as the Parliament rises for the forthcoming recess, he intends to go to Adelaide and to spend some time there to see the position for himself. While there he will receive any representations that people in the area wish to make to him.
page 545
– I direct a question to the Minister representing the Minister for Primary Industry. On 24th March he staled that the Government was considering the viewpoint of the Meat Industry Advisory Committee of the Commonwealth Scientific and Industrial Research Organisation, which favoured a total ban on the export of kangaroo meat. Can he now state whether the Government is ready to take this overdue step?
– I am not in a position to state on behalf of the Minister for Primary Industry whether this decision has or has not been made yet. However, I will make inquiries of the Minister and inform the honorable senator of the result.
page 545
– Has the Acting Leader of the Government in the Senate seen, in both American and Australian publications, recent photographs of South Vietnamese youths rioting and counterrioting for and against the people in political control of their country? Can he give any information on the recruitment of the youth of Vietnam? Does compulsory military service apply to the youth of that country, or does it apply only to the youth of Australia and the United States?
– Yes, I have seen a number of photographs, the captions of which indicated that they were photographs of Buddhist youths, Catholic youths or other youths taking part in demonstrations. I understand that the South Vietnamese Army at the present time consists of well over 500,000 men and that compulsory military service applies in South Vietnam.
page 546
– My question is directed to the Acting Leader of the Government in the Senate. In view of the fact that the change to decimal currency was made principally on the ground of achieving uniformity with most other countries, I ask whether the Government has considered or will consider, in co-operation with the States if necessary, a change from driving on the left hand side of the road to driving on the right hand side of the road, also on the ground of achieving uniformity with most other countries. Could the Minister ascertain the approximate cost of such a change and what advantages, if any, would accrue from it?
– This question raises a matter of quite far reaching policy. It is clearly a matter of some significance and one which could well repay study. I do not think I can say much more than that at the present moment. In a similar field, there could be consideration of changes to decimal methods other than in respect of currency. For example, the hospitals have already changed to the decimal method of measuring quantities of medicine. I suppose that at some time in the future this country might well be considering the use of litres for measuring liquids, the use of kilograms and things of that kind. .
– What about traffic?
– Traffic would fall not precisely within that field, but within a related field. I cannot give an assurance that the Government will start conversations with the States on this matter; but it is not a proposal that I would be prepared to turn down, either.
page 546
– My question is addressed to the Minister for Customs and Excise. I refer to the recent disclosure that officers of his Department have discovered contraband articles on overseas ships visiting either a Tasmanian port or some Tasmanian ports. Was this the result of an on the spot raid or of continued careful watching of Tasmanian ports by his departmental officers? Has his Department any reason to believe that the thorough checking of overseas ships al mainland Australian ports has persuaded dealers in the goods concerned to try to off-load 1 hem in Tasmanian ports?
– For obvious reasons, I shall answer this question only with generalities. In view of the commission that the Department of Customs and Excise has in relation to prohibited imports, which involves a very heavy responsibility, it is not in the nature of things that I should answer questions on this subject with precision. However, I think it is proper that I should tell the Senate that one of the difficulties with which we have to contend is that contraband or prohibited goods can be concealed on a ship and not be discovered at the first port of entry. Therefore the Department examines ships and follows customs procedures at ports other than first ports of entry from time to time with very satisfactory results. I want to impress on the Senate, if I may, that there is a continuous effort by officers of the Department of Customs and Excise. They exercise constant vigilance over ships or aircraft that come to Australia. Beyond that, 1 am not prepared to say how or when we make our search decisions.
page 546
– I direct a question to the Acting Leader of the Government in the Senate, and 1 preface it by saying that over the past several years I have attempted to extract from the Government a satisfactory answer to the question of where Australia would stand if Great Britain decided to join the six nation Common Market. The Government has always underestimated the importance of this matter and its bearing on our primary producers. I therefore ask the Minister: Now that England’s Labour Prime Minister is reported to have said that his Government is not only ready but is willing to join the six nation trading group provided that Commonwealth interests are safeguarded, has the Australian Government any worthwhile plans to present so that Australia’s interests will be protected, or does it intend to take a different Une of thinking just because Britain’s Government is an efficient Labour Government? Has this most peculiar symptom been strangely displayed at the United Nations in the last few days, when the Government failed to give clear directions to the Australian Ambassador at the United Nations about Rhodesia and a ministerial spokesman in Australia accused the Australian envoy of making a faux pas?
– I think the first part of the question should be put on the notice paper and addressed to the Minister for Trade and Industry, although if the honorable senator wishes to address it to the Prime Minister that will be quite satisfactory to me. Dealing with the second part of the question, 1 say that the honorable senator is incorrect in stating that the ministerial statement accused Australia’s envoy at the United Nations of anything. This is plainly an incorrect statement on the honorable senator’s part. What was reported in the Press was a ministerial statement making it perfectly clear that Australia is opposed to the use of military force against Rhodesia. That statement did not contain any mention of our envoy.
page 547
– I wish to ask the Minister representing the Minister for Primary Industry a question in two parts. First, can he inform me what amount of money the Commonwealth Government has paid into the Wheat Prices Stabilisation Fund over the past few years? Secondly, what amount of money have the Australian wheat growers themselves paid into the Fund?
– The honorable senator was good enough to inform me that he would be asking for this information and 1 have been able to obtain a statement from the Minister for Primary Industry. The Commonwealth Government has made the following payments to the Wheat Prices Stabilisation Fund: Pool No. 23, the 1959- 60 crop, $6,043,932; Pool No. 24, the 1960-61 crop, $17,768,332; Pool No. 25, the 1961-62 crop, $14,575,568; Pool No. 26, the 1962-63 crop’, $22,634,866; and Pool No. 27, the 1963-64 crop, $1,892,558. The total payments over those years amount to $62,915,256. A claim for $18.1 million in respect of No. 28 Pool, for the 1964-65 season has been submitted. The Wheat Prices Stabilisation Fund came into existence with the 1945-46 season’s pool. In the next seven years growers contributed a total of $151.3 million, but the whole of this was refunded to them. No export charge was levied on wheat in respect of the 1952-53 season. From then until the 1959-60 season’s pool, the Fund operated entirely on grower contributions, which totalled $21.5 million. The balance in the Fund was insufficient to meet withdrawals in respect of the 1959-60 season. The first Commonwealth payment to the Fund was made in the .1961-62 financial year in respect of the 1959-60 season’s pool.
I think I should add also that over the years the wheat growers have made what they regard as substantial contributions to the users of wheat in Australia by virtue of the fact that the growers have received, for local consumption wheat, prices that were far below those that would have been obtainable overseas.
page 547
– My question is directed to the Minister representing the Deputy Prime Minister. Has the Minister noted a report in the Melbourne “ Age “ of today, which suggests that legislation will shortly be introduced in the Canadian Parliament for the establishment by the Canadian Government of an organisation which will be known as the Canadian National Development Corporation with a suggested authorised capital of $1,000 million for the purpose of the development of Canada’s natural resources? This move was made after a 1961 survey disclosed that non-residents controlled virtually all of the Canadian automobile industry, 70 per cent, of the petroleum and natural gas industries and 60 per cent, of the mining and refining industries, and that in all non-residents controlled 60 per cent, of all Canada’s manufacturing industries. In view of the fact that this situation has an almost exact parallel in Australia, will the Government consider taking similar action to that proposed by Canada?
– This is clearly a question which is entirely bound up with policy and, therefore, not one to which any precise answer can be expected at question time. However, should the question give rise in anybody’s mind to the idea that 60 per cent, of Australian industry is owned by overseas interests, that impression would be entirely false.
– Can the Minister tell me what the proportion is?
– The last figures that I saw for the manufacturing and mining industries - and I give these subject to correction - were of the order of 22 per cent, or 23 per cent., but that answer of itself is not one which can be regarded as properly informative because this matter does not lend itself to that sort of question and answer. There are particular industries which have a greater proportion of overseas ownership and other industries which have a much smaller proportion. This is a matter which needs to be argued out at considerable length, if the facts are to be properly stated. But it is accurate to say that not 60 per cent., or anything like it, is owned by overseas capital.
page 548
Sena:or CAVANAGH. - I ask the
Minister representing the Acting Prime Minister a question which arises out of the question asked by Senator Hendrickson. Did the Australian representative at the United Nations refrain from voting on the question of the use of force against Rhodesia? If so, why did he refrain from voting?
– The representative of Australia at the United Nations did abstain from voting on the question of the use of force against Rhodesia.. I imagine he abstained because of the convention, if that is what it is, or feelings round the United Nations that an abstention expresses dissatisfaction with the proposal put forward.
– Not always.
– Not always, no, but this tends to be the approach. The Australian people should be quite clear that whatever the feeling in the United Nations may be, the feeling of the Australian Government is that it is opposed to the use of military force against Rhodesia. Should there be a vote again on this question, then that would be made perfectly clear, no matter what the conventions of the United Nations may be.
page 548
– I ask the Minister representing the Minister for External Affairs: Are Australian troops in Vietnam under the South East Asia Collective Security Treaty? If so, under what article or articles of the Treaty has the Government acted?
– If the honorable senator wants a detailed answer to that question, I suggest he put it on the notice paper. Australian troops are in Vietnam in pursuance, and not in defiance or contradiction, of the United Nations Charter which gives any nation which is the subject of aggression the right to ask for and receive assistance against that aggression.
– I ask the Minister representing the Minister for External Affairs whether the Australian troops in Vietnam are there under the S.E.A.T.O. Treaty or not?
– It seems to me that I have just answered a precisely similar question from Senator Cohen.
page 548
– I ask a question of the Acting Leader of the Government in the Senate who is Minister representing the Prime Minister in matters relating to education and research. May I say as a preliminary remark that I sympathise with the Minister because he appears to be the one who has been on his feet on the majority occasions during question time today. But he is so far ahead intellectually of his associates that this is the reason why the questions are directed to him. 1 ask: Has the Minister noticed and noted that it is proposed that the “ Alpha Helix “, the research vessel owned by the Scripps Institution of Oceanography of the United States of America, will spend a considerable period in research on the Great Barrier Reef? If the Minister does not know where that is, I inform him that it is off the coast of Queensland. Does the Minister know that the only marine biological research station for research on the Great Barrier Reef is a small one situated on Heron Island and that the staff of this research station consists of a director and a maintenance officer? I may say that there has only been £5,000-
– Mr. President, I rise to a point of order. Is the honorable senator giving information or seeking information?
– Well, the honorable senator needs the information.
– Order!
– Leave it to the President. He will look after the honorable senator but he does not look after me.
T’hc PRESIDENT. -Order! Senator Dittmer’s question is becoming a little long but it is obvious that it is coming to an end.
– And we are going to gel information for the people, Sir. Now that the University of Queensland proposes to establish a Chair of Marine Biology at Townsville, will the Minister give the assurance - I know he will say this is a matter of policy-
– Mr. President, I rise to a further point of order. According to the Standing Orders of the Senate, an honorable senator at question time is entilled to ask for information but not to give it. I suggest that Senator Dittmer is seeking to give information and is not asking for information. I ask for your ruling on the matter.
– Order! I will say that Senator Dittmer is doing this rather cleverly. He is asking a question and giving information at the same time. This is a practice that does happen here. It is not lost on me. The honorable senator is going so close to being out of order that I advise him lo finish asking his question.
– The remainder of my question occupies only three lines, and I know that you, Mr. President, in your Christian charity and tolerance, will bear with me. Will the Minister give the assurance that the Government will make a substantial grant to establish a marine biological research station in the vicinity of the northern part of the Great Barrier Reef under the control of the professor appointed to the new chair? In that way, the Government would make a contribution to pure and applied science.
– Order!
– I do know that the ship “ Alpha Helix “ will be spending some time in Australian waters and I understand that a scientist from the University of Sydney will be participating in her activities while she is here. I know also that the only establishment of the kind referred to by the honorable senator is at Heron Island and that the directorship of that establishment has just recently been taken over by an eminent English scientist who is an authority on the psychology of fish. The question as to how much money would be provided if the University of Townsville established a chair of marine biology would be brought to the Parliament for decision in the normal way when the Australian National Universities Commission made its recommendation as to what faculties in what universities ought to be supported by the Government.
page 549
– My question is addressed to the Minister representing the Minister for the Army. In the light of the practice that is manifest in “ Newsweek “ and other leading United States magazines of carrying direct comment by United States military personnel of all ranks on the political atmosphere that prevails in Saigon-
– I rise to a point of order. Mr. President, is Senator Mulvihill reading from a newspaper or not?
– Order! I am not in a position to decide whether the honorable senator is reading from a newspaper. I am doubtful whether the question is in order and whether any responsible Minister is capable of answering it.
– 1 am dealing with Army regulations.
– Order! I shall “hear the question again and decide whether to rule it out of order or not.
– In the light of the practice that is manifest in “ Newsweek “ and other leading United States magazines of carrying direct comment by United States military personnel of all ranks on the political atmosphere that prevails in Saigon, are Australian defence personnel permitted to make similar Press comments?
– I personally do not know, but 1 shall inquire whether the Minister for the Army knows. If he knows, he will tell the honorable senator.
page 550
– Can the
Minister representing the Minister for the Navy inform me whether the Orion aircraft which are to replace the old Lockheed Neptunes are modern aircraft or are military versions of the Lockheed Electra aircraft? Can he say whether I was right when some years ago I asked a question in which I made the assumption that the more modern version of the Lockheed Neptune which was then being purchased was not suitable for the kind of work envisaged and that Orion aircraft were necessary for modern anti-submarine work?
– I shall inquire of the Minister for the Navy and get an answer from him.
page 550
(Question No. 643.)
asked the Minister for Customs and Excise, upon notice -
– I have the following answer to the honorable senator’s questions -
page 550
(Question No. 827.)
asked the Minister representing the Minister for National Development, upon notice -
– The Minister for National Development has provided the following information in replyto the honorable senator’s question -
page 551
(Question No. 849.)
asked the Minis ter for Housing, upon notice -
In view of the Minister’s keen desire to assist all responsible young people to build their own homes, will the Minister proclaim credit unions as recognised savings institutions so that members saving the amount specified may become eligible for the Commonwealth housing loan?
– The answer to the honorable senator’s question is as follows -
One of the basic purposes of the Homes Savings Grant Scheme is to encourage young people to save for their homes with institutions which provide long-term finance for housing and, in this way, to increase the supply of housing finance. The institutions with which money saved after 1st January 1965 must be deposited to be acceptable under the Scheme were carefully selected to achieve this purpose.
There is no question that credit unions play a useful part in encouraging saving but, generally speaking, their function is to provide finance to members on a co-operative basis for purposes similar to those for which loans arc made by hire purchase companies. In the main, they provide purchasing power for consumer goods such as furniture and electrical appliances. Because of the nature of the purchases to be made, most loans arc small and repayable on a short term basis, usually of three years or less.
Short term loans are also made to meet the costof repairs or extensions to a home. However, some relatively small loans, usually in the form of second mortgages, are made to help members buy their homes. So far, the credit union movement has not set out specifically to encourage personal saving for the purpose of acquiring a home and has not contributed significant funds for new home construction.
It was for these reasons that credit unions were not recognised as an acceptable form of savings on a permanent basis. I would mention, however, that money held in credit unions at 31st December 1964 will continue to be accepted as savings under the scheme until 31st December 1967 to the extent that those moneys continue to be maintained on deposit with the credit unions.
page 551
(Question No. 855.)
asked the Minister representing the Minister for External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follows -
page 551
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Dame Annabelle Rankin) read a first time.
[3.38]. - I move -
That the Bill be now read a second time.
The purpose of this Bill is to effect two amendments to the Migration Act 1958- 1964. The objects of the amendments may be stated briefly: First, to reduce, as far as possible, the documentation required in respect of persons included in the complements or crews of vessels; and, secondly, to revise certain provisions of the Act relating to penalties, consequent upon the introduction of decimal currency.
In connection with ships’ crews, the Migration Act requires that the master of a vessel must have in his possession an identification card, in an approved form, for each member of his crew, and that the card must be produced when required, and surrendered on demand. In court proceedings to establish desertion, the Department is required by the Act to produce a document “ purporting to be an identification card, signed by the master of the vessel “. The need for the identification cards is to ensure that deserting seamen can be traced, and that in any court proceedings their desertion can be proved.
Practically all seamen in ships entering Australian waters are in possession of identity documents of one variety or another - such as seamen’s continuous discharge books. These documents contain sufficient identification detail to facilitate search for deserters, and in many cases masters are in a position to hand these documents over to the Department of Immigration. However, they do not purport to be identification cards and do not carry the master’s signature. Therefore, they are not at present acceptable as the Migration Act stands.
Shipping companies are involved in considerable clerical work and inconvenience in preparing special identification cards for the sole purpose of complying with Australia’s Migration Act, and British companies particularly, supported by the British Board of Trade, have asked that British seamen’s discharge books be accepted. The amendments to the sections of the Act referred to in the schedule have been rendered necessary upon the introduction of decimal currency. I commend the Bill to honorable senators.
Debate (on motion by Senator Fitzgerald) adjourned.
page 552
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Dame Annabelle Rankin) read a first time.
[3.42]. - I move -
That the Bill be now read a second time.
It is over five years since the Nationality and Citizenship Act was last amended. This Act is fundamental to our national status, and from it stems the concept of Australian citizenship as well as the rules under which our citizenship may be acquired.
It is natural that with the passing of time and changing circumstances, adjustments become necessary in a law of this kind. The Bill which I now introduce to the Senate proposes a number of amendments to the main legislation, some of them of a minor machinery nature, but two of them representing positive and desirable amendments to the naturalisation process which is so important to the many thousands of settlers who have come here from non-British countries. I think it desirable that I deal with these two amendments first.
Clauses 6 and 7 of the Bill give effect to the first of these two changes. Under section 15(4) of the Nationality and Citizenship Act, the Minister for Immigration is empowered to grant naturalisation to the spouse of an Australian citizen without any of the usual statutory requirements being met. In practice, and as a matter of policy, Concessions under this section have been made in relation to the residence and language requirements. As regards residence, the situation is that where a husband or a wife is qualified but the partner is not, the eligible party is granted naturalisation and the non-qualified partner, as the spouse of an Australian citizen, then becomes eligible for naturalisation without completing the normal five years residential qualification. Much the same procedure operates in respect of the language requirement except that the concession is granted only to the wife. Our nationality law does not, however, at present make provision for a married couple in either of these cases to be naturalised together. One has to wait while the other has completed all of the formalities and then attend a separate ceremony. The Government has therefore decided that in these circumstances a man and his wife should always be able to become naturalised at the same ceremony. It is much more suitable that the couple should receive their Australian citizenship together. Clause 6 of the Bill will effect this improvement, whilst clause 7 will ensure 1hat the unqualified partner coes not take the oath of allegiance before the qualified partner.
The second important amendment is dealt with in clause 11 of the bill and concerns Khe present practice of requiring applicants for naturalisation to renounce allegiance to their former countries before swearing allegiance to our Queen. In its present form the renunciation is a prominent and separate part of the naturalisation ceremony, but we have decided that the essential words of renunciation should now be incorporated as part of the oath of allegiance to the Queen. The change will simplify and shorten the naturalisation ceremony and enhance its dignity and will also, I believe, eliminate the emotional disturbance felt by candidates due to their natural and rightful love of their homelands. The change has been effected by means of clause 1 1 of this Bill, which amends the prescribed oath of allegiance by the addition, after the applicant recites his name, of the words “ renouncing all other allegiance “.
The other clauses of the Bill are, as 1 said earlier, mainly of a minor or technical nature. I shall deal with these in the order in which they appear in the Bill. Clause 3 amends the existing definition of the term “ Australian Consulate “. This has become necessary because some doubt was cast upon the legal effect of a register of births of Australian citizens born abroad which is kept at the central office of the Department of Immigration in Canberra. The amended definition places the point beyond doubt.
Clause 4 of the Bill seeks to amend section 10 of the Act in relation to children born in Australia of fathers who are here as members of other countries’ diplomatic and consular staffs in Australia. The Act al present recognises the generally-accepted principle that such a child should not become an Australian citizen simply by birth here, unless the father is an Australian citizen. It is considered that a child should not be debarred from citizenship if the father is one of our migrants who has merely been locally engaged to work at an embassy or consulate. Clause 4 ensures this. The clause also takes account of the Vienna Convention on Diplomatic Relations which seeks to end the present situation whereby all the staff of a diplomatic mission have the same immunity from suit as the head of the mission. This situation forms the basis of the present wording of section 10 (2.) (a) of the Nationality and Citizenship Act. and the new wording now proposed by clause 4 of this Bil) will ensure that, if Australia be- 0 comes a party to the Vienna Convention, there will be no need for a further consequential amendment of section 10.
Clause 5 of the Bill is an amendment to help those Australian citizens living abroad who fail, within a reasonable time, to register the births of their children born whilst they are away. At the moment, section 1 1 of the Nationality and Citizenship Act says that the birth may be registered within one year of its occurrence or, in special circumstances, within such extended period as the Minister allows. In the past, the view has been taken that the words “ in special circumstances “ permitted late registrations to be accepted where the failure to register within one year was due to ignorance of the provisions of the Act. I have been advised that ignorance of this kind might not always be regarded as “ special circumstances “, and, as it is not desired to refuse such late registrations, clause 5 amends the Act by omitting the words “ in special circumstances “ and substituting the word “ further “ for the word “ extended “ in relation to the period of time in which a late registration may be made.
As I have already dealt with clauses 6 and 7, I move on to clause 8. A person born abroad prior to the commencement of the Nationality and Citizenship Act in 1949 who was a British subject in 1949 and whose father was born or naturalised in Australia becomes an Australian citizen immediately on entering Australia, under section 25 (3.) of the Act. Even if he had become naturalised in a foreign country between 1949 and the date of his entering Australia, he still becomes an Australian Citizen automatically on his entering this country. Clause 8 of this Bill inserts a further provision whereby the person must have remained a British subject right up to the time of entering Australia.
The second amendment which has become necessary because of Australia’s ratification of an international convention is dealt with in clause 9 of the Bill. Having acceded, in 1961, to the Convention on the Nationality of Married Women, Australia has an obligation to ensure that the alien wives of its nationals may acquire the nationality of their husbands through o specially privileged naturalisation procedures. The Nationality and Citizenship Act takes care of this obligation in respect of the wives of Australian citizens and the wives of Australian protected persons, but it does not provide for persons who, under our citizenship law, are British subjects without citizenship and whose association is with Australia rather than Britain or any other British country. Clause 9 of the Bill will amend- section 26 of the Act to allow such alien wives to acquire the same national status as their husbands by making application to the Minister for Immigration and by taking a simple oath of allegiance as prescribed by clause 12 of the Bill.
Clause 10 of the Bill is a small amendment to ensure that section 34 of the Nationality and Citizenship Act as it stands at present does not restrict the possible wider application of sections 89, 90 and 91 of the Marriage Act 1961 in relation to the legitimation of children. Finally, the opportunity has been taken in clause 13 of the Bill to convert the prescribed penalties for non-observance of certain sections of the Nationality and Citizenship Act into decimal currency.
Mr. President, I know that all honorable senators will endorse the changes in our basic citizenship law which this Bill contemplates. They are changes which wil assist those aliens in our midst who are worthy of Australian citizenship and who are most anxious to become Australians, and changes which will also enable the Department of Immigration to administer the law with greater efficiency. I commend the Bill to all honorable senators.
Debate (on motion by Senator Fitzgerald) adjourned.
page 554
Debate resumed from 20th April (vide page 418), on motion by Senator Anderson -
That the Bill bc now read a second lime.
– The purpose of this Bill, entitled the Post and Telegraph Bill 1966, is to amend the Post and Telegraph Act 1901-1965 in relation to money orders, postal orders and decimal currency. It is of pretty limited scope. The clause relating to money orders provides that the definition of “ money order “ shall include the words “ or similar instrument issued by any postal authority outside the Commonwealth “. Doubtless there is good reason why, until now, the principal Act has been much more limited in this regard. The legislation now refers not only to money orders but also to similar instruments with which the Department obviously has to contend. This seems to be a very desirable amendment, because the effect will be that the Department will not be hamstrung in its dealings with countries outside Australia.
The main amendment proposed by the measure deals with what are now called postal notes but which will in future be called postal orders. The definition in this respect is to be amended in much the same way as that relating to money orders, in order to enable the Commonwealth to deal with these matters outside Australia without being confined to the term “ postal order “.
The Minister for Customs and Excise (Senator Anderson) pointed out that the change to the term “ postal order “ and the alteration of the system of issuing and recording has been forced on the Government by loss of confidence in the old postal note. The figures relating to postal notes contained in the “ Financial and Statistical Bulletin “ for 1 965 are interesting, but probably are not very encouraging to the Postmaster-General’s Department. The figures are shown as from 1939, in which year about 22 million postal notes were issued. There was a peak issue of 30 million in 1960, but five years later the number had fallen to 16 million. Issues remained at about that figure until 1965, when about 15.3 million postal notes were issued. Even with our expanding population there has been a fall in the use of postal notes. The reasons for this are pretty obvious. The purchaser of a postal note fills in the office of payment and the name of the payee. There is no clear title to ownership of the note from that time onwards. Postal notes have provided an easy way of transmitting small amounts of money, larger amounts generally being transmitted by money orders, which are much more fully recorded than are postal notes.
However, as the Minister pointed out, the difficulty has been that in the event of theft or loss by fire or accident the Post Office has been unable to issue another postal note in place of that lost. The Government has sought to overcome this difficulty by the use of a counterfoil, something like that of a cheque - I assume it will be retained by the Post Office and not by the purchaser of the postal order - so that in the event of loss and a claim being made there will be a record of the amount and other matters on the counterfoil.
I think it would have been handy if a counterfoil or a photostat copy of a counterfoil could have been attached to the Bill. lt is all right to describe these things in writing, but visual education is so much better. If the Minister had put a counterfoil in front of us, we could have seen for ourselves the details that are to be recorded on it. I am sure that the Minister, when he replies, will tell us who handles the counterfoil.
I would like to be assured that the Government has overcome the problem which arises when there is a claim in respect of a lost or destroyed postal note. Although T assume that this matter has been rectified, it has not been made clear in the second reading speech. I would like to know whether under the new system the Department, on receiving a claim for a lost or destroyed postal order, will be able to check and say: “This claim appears to be a genuine one.” I would also like to know the period of time which must elapse before a claim is recognised. Obviously, if a postal order is lost one day and a claim is made the next day, the Post Office is not going to recognise the claim on that day. What period of time will elapse before a claim is recognised? Six months has been a sort of magical period in the Post Office over the years. If a postal order has not been presented for payment at the end of six months, is the Post Office going to say: “ We will have a look at this claim to see whether it is a genuine one “?
I seem to recall that some years ago the Postmaster-General’s Department was confronted with a problem concerning the legal question: Who has the best title to a postal note? I recall a case in which a person was charged with stealing a postal note, which was said to be the property of the Postal Department. The court held that it was not the property of the Postal Department because the Department had transferred the title to the postal note when it had accepted money for it. I do not know whether this matter has been clearly established, or whether there is any precedent now which establishes the title to a postal note when a person buys it from the Post Office and commits it to the tender care of the mails, and it then disappears along the track.
The question arises as to who has the title to it at that stage - the person who has paid for it and intends to transfer it to somebody else as a gift or for services rendered, or the Department. If a postal order does not reach the person to whom it is sent, or tha Department, I am wondering whether clear title will be established by the mere fact of checking the counterfoil, the facsimile or the records.
Another question arises in my mind. What are the relative values of a postal order and a money order? One is envisaged for use in sending small amounts of money, and the other for slightly larger amounts. I would like to be clear on this point because I have not had an opportunity to discuss it with departmental officials. I am wondering at this stage whether there will be any need for the postal order at all. The postal note had the advantage that there was no internal work attached to it. It was merely handed across the counter, in the same way as a stamp is, and no internal work was required to be done by the issuing officer or the Post Office from which it was sold.
If my assumption is correct that the records will be kept by the Post Office and not by the individual buying the postal order, some internal work will be required to be done, as it is in respect of a money order. Why is it necessary to have two different forms to be issued to members of the public who wish to transmit small amounts of money? Of course, there is a difference in the poundage. It is much cheaper on a postal note. Usually postal notes are used to send much smaller amounts of money than are money orders. I am wondering whether it would not be possible, by an adjustment of the poundage, to do away with the postal order altogether.
The prescription of the upper limits for the postal order and the money order is now to be made by regulation instead of being provided for in the Act. This is part of the steady trend that we see taking place in legislation. Certain matters are being prescribed by regulation instead of being provided for in an act. This always seems to me to be an undesirable practice unless it can be shown that a tremendous amount of inconvenience will be caused otherwise. I do not think it wise ever to take something away from the scrutiny of the Parliament - to remove a provision from prime legislation to subordinate legislation - unless there is a very good reason why it cannot be considered in that way.
It seems to me that these limits have been in the Act since 1900. I do not say that dogmatically; I suggest that very probably the limits have existed since that time. These amounts have certainly applied for as long as I can remember. Evidently, no inconvenience has been caused to the Minister or his Department concerning these amounts. They have had no worries. Now the Minister says that he will make subject to control by regulations not only the amount of the upper limits for postal orders and money orders but also the question of charges and fees which are generally known as poundage on postal orders. In other words, the amount that the Department will charge for service will be determined by regulation and will not be subject to control by the Parliament. It is obvious that if the upper limits in relation to these orders are determined by regulation the other matters must be determined in that way also because the upper limits cannot be lifted without a change in the rate of poundage. I would like to be given an explanation - and a pretty clear one - by the Minister that it is essential and desirable for these matters to be removed from the Act and be determined by regulation.
Up to the present time, the upper limit on a postal order has been $2. It will be extended to $4. In other words, the old postal order had a limit of £1. This limit on the new postal order will be raised to $4. Money orders at present have a limit of $40. Under this Bill, this amount will be raised to $80. But I ask this question: Why have a limit at all? We are dealing with people who find it more convenient to transmit money by this manner than by cheque. People who do not have a cheque account find it better to send money in this way rather than putting money in an envelope, registering it, and transmitting it through the post. For small amounts up to $4 this person will use the postal order and for amounts above $4 up to $80 the person will use a money order. This is what the Bill provides, but in actual practice this will not work out. If I wanted to transmit $5 by postal order I would simply say to the man at the counter at the post office: “ I want five $ 1 postal orders “. He is not going to stand there and cross-examine me as to what my motives are. If he did he would get the answer: “ These are for five different people.” He does not know what I will do with the postal orders when I leave the post office counter.
The same position applies in relation to money orders. Although the Minister says that the Post Office has a limit of $80 on the amount it will issue by money order, there is nothing to stop me taking out two money orders of the same amount or different amounts totalling over $80. If I struck a particularly recalcitrant postal worker I would simply get my brother or my sister to take out the second money order I needed and then I would remit it with the money order I purchased to the same person. There is no way in which the Post Office can exercise any surveillance in this regard. So, the Government is writing into the Act a provision over which it will have no control at all. If a person wants a money order for $100 or $200, why should the Department worry about it? lt means more revenue to the Department which, in issuing the order, would be carrying out the job that it is there to do. So, I ask the Minister whether there is any real reason why there should be a limit at all. I suggest that the limit is not real at this moment because it cannot be policed. The Department could start to check this matter by setting up a separate police force, but nobody wants this and I am not suggesting that anybody would seriously contemplate it. But would the Department say to a person who wanted a money order for an amount exceeding $80: “ An Act of Parliament governs this matter and we will not issue you with a money order above $80 to send to any person in any town inside or outside Australia.” How would the Department go about doing this? Why should the Department do this? If the person applying for the money order is a completely law abiding citizen and accepts this restriction, what does he do to send the rest of the money to the person to whom he is sending the money order limited to $80? I would like to hear from the Minister on this point. If this is a real limit - in my view I do not think it is - I am wondering whether there should not be any limit at all.
The other amendments in the Bill relate to decimal equivalents. We have seen a few of these in other bills and I suppose we will see a great many more of them. It is obvious that the decimal equivalents have to be introduced. There is nothing in the Bill which attracts the opposition of the Australian Labour Party. I bring these various matters to the attention of the Minister because 1 think that they have been in the Act for a long time and nobody has thought about having a radical look at them to see whether they are serving any purpose. The provisions relating to upper limits on postal orders and money orders place an inconvenience on the public. The question is: Is this inconvenience justified? Further, should the Department be knocking back revenue from these people? The Department is there to serve the public. Finally, I ask this question: What harm will be done if these matters are taken out of the ambit of the Act?
.- The Senate is discussing a Bill for an Act to amend the Post and Telegraph Act 1901-1965. This legislation calls for close scrutiny by, and the attention of, all honorable senators primarily because of the importance of the Postmaster-General’s Department in the national economy and also to enable them to gain an appreciation of the improvement in the business service which the Department suggests by this legislation. In considering this Bill, we should be aware, first, of the size of the Postmaster-General’s Department. The “ Financial and Statistical Bulletin “, to which Senator Willesee has already referred, sets out that the earnings of the Postmaster-General’s Department in the year 1964-65 were £182,916,402. This enormous amount of money indicates the ramifications of the Department. We should be aware also of the capital expenditure per year by the Department. I note from these figures that this amount has doubled in five years. In the year 1964-65, capital expenditure stood at £79,943,665. So, under this legislation we are dealing with an undertaking which is of great importance to this Parliament and to Australia.
To enable the Department to keep abreast of the times, enormous sums of capital expenditure are needed in relation to improvements in communications equipment, the installation of automatic data processing equipment to which this legislation makes some reference, and telephone extension services. The Department is to be congratulated on this move. The attention of the Post Office should be directed to the new methods to be introduced and economies to be made in such a diverse and intricate field. One section of the Post Office has been issuing postal notes to customers for the purpose of enabling them to transfer money to others. For a number of reasons, the issue of postal notes has diminished over the years. The Minister for Customs and Excise (Senator Anderson) has noted this in his second reading speech. In the 10 years since 1954-55, the number of postal notes issued annually has declined by 7 million. A calculation reveals that this reduction represents a loss of approximately 140,000 transactions a week. This is an enormous number of transactions for the Post Office to lose. One factor contributing to this decline has undoubtedly been a lack of public confidence in the security afforded by the postal note. Another factor has been the changing pattern of public behaviour in respect of the transmission of money. This has contributed to the decline also.
The Postmaster-General’s Department has sought to improve its service to those who wish to transmit money to other persons. I believe the Department has approached this matter quite sensibly. It may be of interest to honorable senators to know that the legislation we are considering is based on State Acts extending back over approximately 100 years to original Acts passed in .1867. The legislation we are considering deals with postal orders and was originally drawn from the Queensland Posts and Telegraph Act of 1891. The Bill introduces a new negotiable instrument called the postal order. The existing postal note is to be withdrawn. I have already noted the drop in business that has taken place in the transmission of money by postal note. Because of this the Department has decided that some new type of instrument is necessary for this purpose. The new postal order will be similar in many respects to an ordinary bank cheque. Senator Willesee suggested that the counterfoil probably would be retained by the Department. I am fully aware of the honorable senator’s general knowledge in this field, but I understand that the counterfoil is to be retained by the customer as security against loss of the order. The Department intends that electronic equipment shall be used to sort and count completed transactions.
The new postal orders will range over 23 denominations. Only 15 denominations are covered by the existing postal note. The Bill provides for the making of regulations to set a limit for the amounts of postal orders. Normally I would agree with Senator Willesee in objecting to the use of regulations over and above the provisions of the legislation itself. But in this instance I believe that the Department is aware of the importance of being able to cover a much wider range of denominations and that it is for this reason that provision is being made for the making of regulations. In this particular instance the approach seems to me to be acceptable.
Charges to be made for postal orders will be no higher per unit than is the case with postal notes. In regard to the transfer of money by money order, which is a separate instrument for use by the public, the upper limit for individual transactions is to be raised to $80. This should save much time that is now absorbed with the use of multiple notes. My support for this legislation arises mainly from the action of the Department in suggesting the introduction of the postal order. I believe that its use will be of undoubted benefit to the public, and that I would be remiss if I did not bring this new form of transaction to the attention of private individuals and people in the commercial world who are eager to achieve economy in their businesses and in the payment of small sums of money. Pursuant to this legislation it will be possible to transact business involving small sums of money in multiples of 5c more cheaply than could be done by using bank cheques. Postal orders for amounts from 10c rising by multiples of 5c to 45c will cost only 2c. Orders ranging from 50c in multiples of 5c up to 75c will cost only 3c. Orders for 80c, 85c, 90c, and 95c will cost only 4c. Postal orders for $1, $1.5Q and $2 will each cost 5c. It will be seen that an individual or a business house will be able to transfer money by this means much more cheaply than by using a cheque. I advise companies and others who wish to liquidate debts involving small amounts to investigate the benefits to be derived from using postal orders. I suggest that honorable senators have an obligation to support this measure, which provides for the economic transfer of money by the public in general.
– in reply - I thank honorable senators for their contribution to the debate. As Senator Willesee said, this Bill is not very big; it deals with only a very restricted field of activity. The whole purpose of the legislation is to facilitate the use by the general public of what is now called the postal note but which is to become a postal order. As Senator Willesee said, and as I indicated in my second reading speech, there has been a progressive disinclination to use the postal note. This is emphasised when one considers the natural increase in the use of the facility that one would expect to flow from an increase in the population.
A number of matters were raised by Senator Willesee, who led for the Opposition. If I happen to miss any of the points that he raised, perhaps we shall be able to take them up at the Committee stage. The honorable senator asked about the counterfoil that is to be used in conjunction with the postal order. The counterfoil will be kept by the purchaser. It will be like the hutt of a cheque; it will be a reminder of the date of purchase and certain other particulars. The counterfoil will bear a number which will correspond with the number on the actual postal order. Reference was made to loss and the advantages of the new postal order as opposed to the existing postal note. As we know, since 1953, because of the magnitude of the task involved, the Postal Department has not kept a record of postal notes sold. If a postal note is lost, is burnt or is damaged at the laundry, it is not possible to go to a post office and say. “ I bought a postal note at such and such a post office a fortnight ago, but I have lost it. May I get a replacement, or may I recover the cost? “ Because no record has been kept, it has not been possible to substantiate such claims. This lack of security has contributed to the decline in popularity of the postal note. With the use of modern methods, it will now be possible for people to use postal orders in much the same way as they use cheques. If a person buys a postal order and loses it, it will be possible for him to go back to the post office and to say: “ I bought a postal order for $1.50. I Want to make a claim, because I am quite certain that it was lost in the fire.” It will now be possible for the Department to prove whether or not that postal order has been redeemed. After a period of six months, conditions similar to-those applying now will come into force. Some evidence such as an affidavit or a declaration will be required to substantiate a claim.
– What record of the transaction will be in the possession of the Post Office?
– The postal order itself will carry a series of computer numbers. This will put it in a category of time, as I understand it. The number will enable the Postal Department to process and record the postal order when it comes back to the Post Office whereas after 1953 under the old system the Department did not have such a record. Senator Willesee directed some questions to the value of the new postal orders and asked why we should bother with postal orders at all. The honorable senator will appreciate that a money order is a much more secure instrument than a postal note. A facsimile of a money order has to go to the post office where the amount is to be paid. Therefore, quite a lot of processing of a money order is required of the Postal Department itself. Security can be written into the actual instrument and therefore it is much more secure than a postal order or the old postal note.
That is reflected in the permissible denominations of the two instruments. The upper limit on a postal order will be $4 and on a money order it will be S80. A person can send $80 by money order with much more security than could be done with a postal note. Once the postal note is sold over the counter, it can go through a number of hands and the Post Office has no obligation in relation to it, but a money order is payable at a designated post office. It must be taken to the post office and handed in.
asked a fascinating question about the legal title to the new postal orders. The officer who is advising me has informed me that it would be very difficult to give an answer in these circumstances, but I shall pursue the question and get some information for the honorable senator. I would think that once a postal order had passed out of the hands of the Post Office, the legal responsibility of the Post Office would cease. It docs not necessarily follow that a postal order would be obtained from the Post Office and then be passed on.
– The question would arise if the postal order were stolen and then came back into the possession of the Post Office.
– There are difficulties in that connection. I was interested in the implications of the honorable senator’s question and we will obtain that information. The difference between a postal order and a money order is fairly clear when they are considered in terms of value and security. Senator Willesee asks why there should be a limit on the upper value of a postal order or a money order. Bank notes are printed in many denominations and so also are postal notes. Postal orders will be printed in various denominations, too. Senator Willesee has had long experience in the Postal Department and will realise that a security problem arises in the handling of higher denominations within the Post Office itself.
– Is the Minister directing these remarks to money orders?
– No, this does not apply to money orders. The Postal Department can control the ceiling on money orders by regulation. There again security also comes into the matter. If a person asked for a money order for $5,000, a big responsibility would be placed upon officers of the Postal Department, particularly in the smaller post offices. They do not normally lend themselves to the handling of money orders to that value. Perhaps I am arguing against myself when 1 say that the Post Office acts as an agent for the Commonwealth Bank and I would think that transfers of such large amounts of money could be handled more readily by the banks than by the Post Office. Business done with with money orders and postal orders is not generally handled through the banks because it involves smaller amounts of money.
Senator Willesee also referred to the provision in the Bill that future variations of the upper limit in the denomination for postal orders and other instruments will be fixed by regulation. It is true that the Bill contains this provision but it would seem to me that the Parliament will still have power in relation to the regulations. The Post Office is a colossus. The ramifications of its service to the community are tremendous and vary widely. From a parliamentary point of view, I do not think there is much room for criticism in this provision of the Bill. If we are going to have legislation to apply to all variations in every aspect of Post Office business, why stop at the provision relating to the upper limit on money orders? Would the honorable senator suggest that we need legislation to cover all aspects of Post Office administration?
Regulations are designed to deal with these matters expeditiously. The Parliament has power to require a Minister or a department to answer to the Parliament if powers under the regulations are exceeded. We have had some fiery debates in the Senate on regulations and honorable senators know that the Parliament is vigilant in relation to regulations. This applies particularly to the Senate. If we required a parliamentary statute to cover all changes in’ provisions such as this one, we would be placing an unnecessary burden on the parliamentary institution. The work can be done much more expeditiously and with safeguards by regulation.
I thank honorable senators for the reception they have given the Bill. I am certain than the service to be provided under the terms of the Bill will be used far more extensively and possibly with more efficiency by the Post Office than have previous services of this sort to the public. Transactions done by postal order will be of more value to the public and will give customers greater security in transferring funds.
Question resolved in the affirmative.
Bill read a second time.
In Committee.
The Bill.
– I thank the Minister for gathering very quickly a lot of information of a somewhat technical nature in reply to matters that I had raised. What I was groping for when I was talking about counterfoils was the record of postal orders that the Department would have. The Minister indicated that this is done by the latest electronic devices.
– A record is kept of the amount and number on the counterfoil.
– Is that with the Department?
– Yes.
– That is the point that I was trying to get at. The Department will now have a record so that it can prove that on a certain day a certain thing was done. I thank the Minister for the information. There is an interesting division of responsibilities in clause 7 of the Bill, which repeals sections 74, 75 and 76 of the principal Act. I do not make any criticism of it, but I was wondering whether the Minister had any comments to make. The Act provides that the Governor-General will do this, that and the other thing in relation to other countries. I think the drafting of the Bill is much better. Reference to the Governor-General is being taken out. We know that in practice the Governor-General docs not do these things. The clause proposes the insertion of new sections. Proposed new section 74 will provide in subsection (1.) -
The Commonwealth may make arrangements. . . .
New sub-section (2.) will read -
The Postmaster-General may make arrangements with an authority of a Territory of the Commonwealth. . . .
New sub-section (3.) will read -
Subject to the regulations, the Director-General may arrange for the issue and payment of money orders and postal orders with the Commonwealth. 1 notice that there is a direct provision to give the Director-General this power. I take it that this falls within the category of very high policy, that the PostmasterGeneral may deal with the Territories, in relation to all those things for which Australia is responsible, but outside the Territories the Commonwealth itself must take over. I suppose this is necessary in the higher echelons of government responsibility.
The only other comment 1 want to make is in relation to prescribing by regulations rather than having matters dealt with by legislation, as they have been since 1891 under the Queensland Act and since 1900 under this Act. The argument put forward by the Minister is that it is more flexible ito use regulations, but it does not appear that such flexibility has been necessary for the past 66 years. It would not be such a bacl thing if we had to amend the Act every 66 years. I do not think that that would strain the Senate. The Minister makes a valid point when he says that the Post Office is a very big and important Department. We agree with that statement. We know that all sorts of things have to be done by regulation. Nevertheless, I always raise this aspect for the sake of the record. When we seek to change in an Act a procedure which has not been altered for 66 years, there cannot be such a great need for flexibility. I just raise the matter and point out that again the Government is moving to transfer something from prime legislation to delegated legislation. I think that as a general rule this intention should always be questioned. Sometimes there is a clear need for flexibility in relation to fast moving objects or fast moving times, but this hardly seems necessary in relation to something which has not had to be amended in 66 years. This change is proposed now, only because other amendments are being made. It seems to me that this flexibility is not needed.
– I thank the honorable senator for his comments. I shall deal with his last argument first. It is true that the provision that we seek to amend has been part of the law for 66 years, but it may well have been that when the original legislation was passed and in subsequent years this provision was all right as far as the administration of the Post Office was concerned. But the very point we make is that the Post Office’s functions, the service that it is giving, and the growth of the nation, demand a far more flexible approach than we have had in the past. We have found a falling away in the use of the postal note, and it is felt that, without reflection upon what was done in the past, what is proposed is a far more flexible and efficient way of handling the problem, with the safeguards to which I have already referred. Senator Willesee said that, although he does not press his argument, he is sounding a message that all Ministers and all governments should heed. Any proposal to take some provision out of main legislation and put it into subsidiary legislation is noted, recorded and commented upon in this place. I record my acknowledgment of that point.
I have some notes in relation to clause 7. Perhaps it would be most effective if I read them as they stand. They deal with the points raised in relation to sections 74, 75 and 76 of the principal Act. This clause repeals these sections, which make provision for the issue and payment of money orders and postal notes, set the upper limit for which individual money orders and postal notes may be issued, and set a six months limit on the payment of postal notes at any post office. While the original section 74 provides that the Governor-General may make arrangements with other administrations for the exchange and payment of money orders and postal notes, in fact the administrative arrangements are made in a less formal manner and the new section 74 places the authority with the Commonwealth. It brings the Act into line with actual practice. Money order agreements - postal notes and orders are not exchanged with foreign countries - are negotiated with other governments through the Department of External Affairs.
Sub-section (2.) of section 74 makes specific provision for similar negotiations with Territories of the Commonwealth and places the power for negotiation with the Postmaster-General. In the principal Act, Territories of the Commonwealth are not separately covered and it was considered by the Attorney-General’s Department that there should be specific reference to them. Sub-section (3.) of section 74 gives the Director-General the authority to make arrangements for the issue and payment of money orders and postal orders within the Commonwealth. In the original section 74 of the principal Act, this authority was conferred upon the Governor-General, an administrative condition inappropriate under present day conditions.
The new section 75, in sub-sections (I.) and (2.), replaces the specific limits set on money orders - $40 - and postal notes - $2 - in the principal Act with the provision that maximum amounts for money orders and postal orders may be prescribed by regulation. The only other comment that I wish to make is that these regulations will become subject to review in the ordinary course of events by the Parliament, because they will be tabled in the Parliament.
Bill agreed to.
Bill reported without amendment: report adopted.
Bill (on motion by Senator Anderson) read a third time.
page 562
Debate resumed from 31st March (vide page 381), on motion by Senator Gorton -
That the Bill be now read a second time.
– The Judiciary Act is the principal enactment of this Parliament, providing for the exercise of the judicial power of the
Commonwealth. First enacted in 1903, it has been amended on a number of occasions to deal with difficulties which have arisen in the course of administering that judicial power. The Act needs a comprehensive revision. The amending Bill does not attempt to produce such a revision.
The judiciary is the third branch of government in the Commonwealth, and the Parliament has a duty to ensure that the judicial branch is enabled, as far as legislation can enable it, to administer justice efficiently, quickly and cheaply. There are many amendments which should be made if these ends are to be achieved. Many obscurities could be removed. Many desirable procedural innovations should be made. These are not touched on by this Bill, which is restricted to amendments of the Judiciary Act in relation to legal practitioners and in relation to the application of that Act in the Territories of the Commonwealth.
The Bill seeks, amongst other things, to alter the rights of admission to practice in the Territories to enable practitioners admitted in the Territories to practise in any Federal court or court of any Territory. That alteration is a desirable alteration. The Bill also seeks to enable restrictions on the right to practise in the Territories to be imposed so as to exclude persons not admitted in the Territories. At present persons who are entitled to practise in the High Court of Australia and other Federal courts are entitled to practise in the courts of the Territories, including the Australian Capital Territory. We believe that should continue and, as far as the Bill would enable that right to be taken away, we seek to amend the Bill to preserve the right. At present it is fairly easy for any person who is entitled to practise in the Supreme Court of any State to become entitled to practise in the High Court and in other Federal courts.
– Is not that as of course?
– Upon making application to be enrolled on the roll of legal practitioners kept by the Registrar of the High Court, and upon producing to him the evidence that one is entitled to practise in the Supreme Court of a State, it is as of course. That procedure has worked well over many years. It means that the control of practitioners is, in the first instance, by the courts of the States. Practitioners are also subject to control by the High Court if they are registered as practitioners upon the roll kept by the Registrar of the High Court. So far, as Senator Wright has intimated by his interjection, practitioners in the States may, without any real obstacle being placed in their path, become entitled to practise in any Federal court. This has meant that, so far as a Territory such as the Australian Capital Territory is concerned, they have been able to practise in the Federal courts when they are here and, by virtue of a provision dealing specifically with the Australian Capital Territory and the Act relating to this Territory, they are entitled to practise here. That is as we believe it should be. It is our view that entitlement to practise in any Territory, including the Australian Capital Territory, should be tounded either on entitlement to practise in the High Court or on admission in the Territory concerned. Either qualification should be sufficient.
This Bill envisages that persons, no doubt with the proper qualifications, may be admitted to practise in a Territory by the Supreme Court of that Territory. The Bill also envisages that persons may be entitled to practise in any Territory if they are on the roll of the High Court - in other words, if they may be described as Federal legal practitioners. So far, so good. There would be no objection to the provisions of the Bill in this regard if they ended there, but the Bill also contains a provision that the right of the Federal practitioners to practise in a Territory may be restricted by a law applying .in the Territory so as to confine the right to those persons who are admitted to practise by the Supreme Court of the Territory.
– That is to say, by an ordinance of the Territory, a purely local territorial law.
– Yes. For that reason, we would seek to delete that part of the Bill which would enable a law of the Territory to restrict entitlement to practise as a barrister or solicitor in the Territory to persons who have been admitted so to practise by the Supreme Court of the Territory. That provision is objectionable. It is inconsistent with the concept of this Commonwealth that barriers should be drawn around Territories. The provision has been described as one to enable a closed shop to operate. The purpose is apparently to strenghten the Australian Capital Territory in negotiating with those States, in particular Queensland, which place barriers around themselves in the matter of legal practice. The motive is commendable, it being to force States such as Queensland to abandon restrictive policies by offering reciprocity and threatening to invoke the power to exclude conferred by the provisions of this Bill. In plain terms, it is sought to ensure the entry of Australian Capital Territory practitioners, many of whom may be graduates of the Australian National University, into State courts by threatening to exclude the practitioners of other States from the Australian Capital Territory.
The problem, as I understand it, is not a real one in relation to Victoria and New South Wales. Those States have not sought to place any barriers about them which would exclude the practitioners of other States from entry into either of those States. I understand that any State which grants reciprocal rights has been very easy to deal with. The problem seems to arise specially in regard to Queensland. However, in essence the Bill seeks to avoid an evil by the threat of returning the same evil. That such a barrier would be an evil is recognised on all sides. The AttorneyGeneral (Mr. Snedden) has said that no ordinance should be passed pursuant to the provision whereby a closed shop could be created. So, as far as the Government is concerned, the sanction would never come into force. I put this question: Why introduce a power to threaten a closed shop if it is never intended to carry out that threat?
– Where did the Attorney-General make that statement?
– He made it in the other place during the second reading debate on this Bill. Let me give the honorable senator a little more detail. The AttorneyGeneral said, as reported at pages 739 and 740 of “ Hansard “-
I think also that every member of this House would not want that law, when passed, to have built into it a provision whereby interested persons within the Territory could themselves apply a closed shop.
He went on to deal with the matter of an ordinance. He said -
The time at which to fight the bailie of the closed shop is at the time of the ordinance. I am unable to give a statement of opinion on behalf of anybody who succeeds me in the office I now hold, but 1 can make abundantly clear my own view of the matter, lt is that no ordinance passed pursuant to this law should contain any provision whereby persons serving their own local interests, one might even say selfish interests, shall be able to create a closed shop. 1 ask the House to support me in this matter. This Act, for these purposes, stands like a constitution behind the law making authority, that is, the ordinance. I would not like to see in that constitution type of legislation a provision restrictive as it is in the terms expressed by the Deputy Leader of the Opposition which would deprive the Territory of the right or the capacity to approach a State to negotiate reciprocity. At the present time, there is no reciprocity. This is what the Territory wants. This is what the law school of the Australian National University wants.
That passage contains a number of important statements. The cardinal one is that the Attorney-General does not want a closed shop to be brought into being by any ordinance pursuant to the provisions of this Bill. I again put this question: Why give a power to enable such a closed shop to be brought into being if it is not intended to use that power? If it is not intended to use that power - and that is made plain to the world in statements made in this Parliament - then the threat is not an effective one at this stage. But we will not always be at this stage. We who are here now one day will pass away or at least pass from these chambers. IT this power is in the legislation, one does not know that it will not be used. What answer is there if an ordinance is made to bring about a closed shop and, when the matter comes before the Parliament, those who support the ordinance say to those who oppose it: “ It is no use your saying that the AttorneyGeneral said that this ought not to be done. The Parliament gave the power to do this very thing. It was the policy of the Parliament that, notwithstanding the other provisions, a law could be made to do this very thing. How can you say that it should not be done?”?
We say that if a closed shop is evil its introduction into this Territory ought not to be made possible. We would like to see this provision obliterated. We believe that such a principle should not exist in regard to any State or Territory. If a State intro duces such a principle in relation to its own State jurisdiction, there is nothing that the Commonwealth can do about it by law. There may be other methods of persuasion, but in truth that is a matter within the lawful authority of the State. The Commonwealth, as far as its Federal courts, the courts of its Territories and its own Federal jurisdiction are concerned, ought not lo allow any such principle to apply. It certainly should not invite such an ordinance by the inclusion of a provision such as this one in this Bill.
The Bill raises questions of more importance than the right of legal practitioners to practise in the Territories. It concerns the concept of the Commonwealth itself. The Constitution of the Commonwealth of Australia embodies the desire of the people of this continent to become one indissoluble Commonwealth. The Constitution Act and all laws made by this Parliament under it are binding on the courts, judges and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State. The intent of the founders to prevent barriers surrounding States was made clear in the Constitution. Section 90 of the Constitution provides that the power to impose duties of customs and of excise and to grant bounties on the production or export of goods shall be exclusive to this Parliament. Section 92 provides that trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. Section 117 provides -
A subject of the Queen, resident in any Stale, shall not be subject in any other State to any disability or discrimination which would nol be equally applicable to him if he were a subject of the Queen resident in such other State.
Section 118 provides -
Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.
In those ways the men who framed the Constitution sought to ensure that barriers would not be raised within this Commonwealth so as to segment this continent as a Commonwealth. Provisions such as those which are included in this Bill run counter to that policy in the Constitution. 1 believe that the practices of a State such as Queensland, which sets up barriers that in substance are founded upon residence, are a discrimination and a disability which, in substance, contravene section 117 of the Constitution. We ought not to be introducing into bills such as this one provisions that run counter to the spirit of the Constitution.
There is no constitutional provision which applies to the Territories in the same way as section 1 1 7 applies to the States. The reason for that is clear. The framers of the Constitution did not envisage that this Parliament would enable barriers to be placed around the Territories. The Constitution forbade the placing of barriers around the States. It was never contemplated that this Parliament, acting on behalf of all the people of this Commonwealth, would endeavour to place restrictions around the Territories. So far as this Bill would preserve the segmentation of Federal legal practice in relation to State courts and extend the segmentation to the Territories, we shall seek to amend it. By that 1 mean that we shall seek to alter those provisions which would enable Federal legal practitioners to be excluded from the right to practise in the courts of the Territories, and, on the other hand, we shall seek to extend the right of all Federal legal practitioners and of all practitioners admitted by the courts of the Territories to practise, not only in Federal courts, as is envisaged by this Bill, but also in any court exercising Federal jurisdiction. The right to practise not only in the Federal courts but also in courts exercising Federal jurisdiction has long been recognised as a necessary right and privilege of the Commonwealth itself, so far as its own legal advisers are concerned. The existing section 50 of the Judiciary Act states -
The Crown Solicitor for the Commonwealth shall, in respect of his office, be entitled to practise as a solicitor in any federal Court or Court exercising federal jurisdiction, and be entitled to all the rights and privileges of a solicitor in each State or Territory, whether he is or is not enrolled as a solicitor in any State or Territory.
That right is a necessary and useful one. It is commonsense that the advisers of the Commonwealth should be able to practice not only in Federal courts but in any court exercising Federal jurisdiction. If a case arises in a State court, where the source of jurisdiction is Federal, the Commonwealth
Crown Solicitor is entitled, under the provisions of the Judiciary Act, to go there. This ought also to be the right of those persons who are accredited legal practitioners in the High Court and other Federal courts. They ought to be able to go into any court in this land which has been invested with Federal jurisdiction by this Parliament. This is a way in which the interests of the citizen can be served. As I understand, it is the desire of the people of this Territory, as expressed to me by their representative, Mr. Jim Fraser, that they be able to have access to the best legal advice and assistance they can get in this Territory, wherever the practitioners may be practising. This does not concern only the rights of legal practitioners. lt concerns more the rights of citizens to the advocacy and the assistance that they desire. It concerns also the entitlement of the courts to the best assistance they can have from practitioners.
We are one people. Our High Court has a continental jurisdiction, as have the other Federal courts. We seek, by provisions such as those of the Service and Execution of Process Act, to extend the scope of State courts so that all persons may be brought within their jurisdiction in proper cases. Equally, the officers and practitioners of those courts should be able to practise in any Federal court and in every court exercising Federal jurisdiction. The people not only of the Australian Capital Territory but also of the other Territories as well as the people of the States should be entitled to the assistance of practitioners from every part of the Commonwealth, providing they are acceptable as practitioners in the Federal courts. The courts of the Territories - not only of the Australian Capital Territory but also of the other Territories - and alf courts exercising Federal jurisdiction should not be denied the assistance of those officers and practitioners.
This Bill deals with all Territories, but its operation will be especially manifest in the Australian Capital Territory because of its growing population and its special position. The Australian Capital Territory exists primarily to house the seat of government, and the laws made by this Territory must always have this in mind. The Australian Capital Territory is not a mere Territory on the way to statehood. It is the capital, the citadel, of this nation. In the not distant future the High Court will be here. It will have its principal seat in this Territory. The other Federal courts, such as the Commonwealth Industrial Court, will also have their principal seats here. Many commissions exercising administrative functions in a judicial manner also will have their principal seats here. For many reasons, citizens not only in this Territory but elsewhere will desire to invoke the jurisdiction of the Supreme Court and other courts of this Territory as convenient forums to commence actions, for instance, against Federal agencies. This may be done for many reasons. The experience of the United States of America shows that the courts of the Federal District come to be used for many purposes other than the local affairs of the residents of the District. The laws of the Australian Capital Territory especially should never be such as to enable a diversion of the Territory or its institutions from the primary role of serving the seat of government, nor should those laws ever be such as to enable barriers to be raised inconsistent with the concept that this is not a collection of States and Territories, but one Commonwealth.
The provision for the discipline of practitioners who may be entitled to practise in the Supreme Court of a Territory, whether or not they are admitted by that Territory, seem to us to be wise. It is necessary that there be proper control over those engaged in legal practice. The provision, which seeks to enable practitioners in a Territory to practice in other Territories and Federal courts seems to us also to be wise, but we seek to extend it to apply to courts exercising the Federal jurisdiction. The provisions for the extension of the rights and privileges of the Crown Solicitor seem at first sight to extend beyond those necessary for the proper exercise of his powers. Indeed, they would seem to go beyond the constitutional authority regarding his powers. There are many respects in which this would seem to entitle the Crown Solicitor to act for persons in circumstances which would have only a tenuous relation with the Commonwealth, but no doubt we will hear more on those matters at the Committee stage.
The principal provisions of the Bill deal with the rights of practitioners, the rights of citizens to be able to use the services of those practitioners and the rights of the courts to have the assistance of practitioners.
Those provisions must be judged against the background of the Commonwealth itself, the concept of the Commonwealth and the nature of the constituent instrument which makes us one people occupying one continent. It seems to me that while many of the provisions of the Bill are commendable, others of them are not. Many of them are inconsistent with the true nature of the Commonwealth. Under the guise of providing for the removal of barriers, they seek to enable barriers to be set up.
The Judiciary Act should not be thought to be some lever to be used against a State which is exercising its powers, within the limits of its own authority, in a way which does not commend itself to us. The Judiciary Act is a great instrument. It is concerned with the exercise of the judicial power throughout the Commonwealth. It should recognise that as far as possible barriers should be removed. The exercise of authority and practice by Federal courts and courts exercising Federal jurisdiction should be unified, and as an incident to that, as far as possible the right of practitioners throughout the Commonwealth ought to be made uniform under the laws of the Commonwealth. No provision should be included which by its very terms enables a law to be made which is inconsistent with that purpose.
.- 1 feel that I should make a contribution to the second reading debate on the Bill, although at first I had intended to reserve my remarks to the Committee stage. I find myself handicapped by two difficulties. The first is to divine the purpose of this legislation, and the second, having divined the purpose of the legislation, is to agree with that purpose. I do not find it necessary to state my views on reliance upon the Commonwealth as an entity for Federal purposes, as it is, but for State purposes there are still six separate units. On a previous occasion I have deplored the failure to make an attempt to unify the judicial power within the Commonwealth so that we could obliterate for all time the most technical, elusive, complicated and embarrassing distinction which in practice operates against litigants and which enables an instrument of vexation to go on to great lengths. But that is a very difficult matter, and I only mention it in passing.
The trouble which I have concerning the Bill arises out of the distinction which is drawn between courts of Federal jurisdiction and courts of State jurisdiction. In saying that I find myself to be at variance with the threshold approach that Senator Murphy has adopted in considering the Bill. I do not find the provisions relating to the Federal courts and their practitioners as the beginning of one’s consideration of the Bill. Those provisions came into existence at a time when there were six State courts, each of which had exercised jurisdiction for well nigh a century. In each State there was a Supreme Court whose function and duly was to supervise the efficiency and propriety of legal practice.
In my view, when the Federal courts were established for the first time in 1900, the Government took the legal provision which applied in the States and properly adopted that provision as relating to practitioners who should practise in the Federal jurisdiction. We find that the existing provision in the Judiciary Acf is a simple one. Section 49 (I.) states -
Any person emitted to practise as a barrister or solicitor or both in any State shall have the like right to practise in any Federal Court or in any Court of a Territory…..
What is wrong with that provision? The people who compiled the statutes at that time were able to write plain English without cunning and - I am bound to say with fuller acknowledgment to them then than is the case now - with complete candour. The next provision in the Act stated that if a person was entitled to practise as a barrister or solicitor or both in any State and he could produce evidence that he was so entitled, his name automatically was recorded On the Register of the High Court. The same procedure applied with other Federal courts.
Now I turn to the second reading speech on this Bill. It states -
The main purpose of this Bill is to lay down who may practise as barristers or solicitors in the High Court and other Federal courts, and who may practise in courts of the Territories. The Bill deals also with subsidiary matters such as discipline of persons so practising. Section 49 of the Judiciary Act has dealt with these matters, in part at least, since 1903. However, section 49 is not suited to modern developments. . . .
What does that’ paragraph mean. Either in intendment or in its expression, it is designed to put a hoodoo over this chamber and to conceal the plain and simple fact concerning the way in which our Federal legislation had regulated the admission of practitioners for the purposes of the Federal courts. The next paragraph in the second reading speech states -
The new provisions recognise Territory practice, in a way that the earlier law was not concerned to do, by giving Territory practitioners as well as State practitioners a right to practise in the High Court and other Federal courts. The new provisions also say who are to be Territory practitioners, subject to any Territory law that may make other provision. The Bill leaves it open for Territory laws to provide for local admission as a condition precedent to Territory practice.
Then the speech refers to local legislation and restricting practice and contains the statement -
What is the reality? Who makes the laws in the various Federal Territories? The Governor-General in Council makes the laws in respect of the Australian Capital Territory. We have an entirely developing situation in relation to the Territory of Papua and New Guinea. Who makes the laws in relation to Norfolk Island? Who makes the laws in relation to Nauru and the other Commonwealth Territories? These laws are made by the Commonwealth Executive Council. Now, as I read this speech - and I speak at this time only to invite correction by the Minister in his reply in order to enable me properly to debate the bill in Committee - I conclude that all this provision is saying is that we propose to establish the right of the Commonwealth Executive Council to issue ordinances, maybe differing as to the various Territories, establishing a separate profession practising in these Federal Territories.
From my point of view, I examined that intention first in relation to the Australian Capital Territory. I believe there are some 50 or 60 legal practitioners practising in the A.C.T. at the present time. They are practising here, I should think, by virtue of the provisions of section 49(1.) of the Judiciary Act, which says -
Any person entitled to practise as a barrister or solicitor or both in any State shall have tha like right to practise in any federal Court or in any Court of a Territory under the control of the Commonwealth.
– Will the honorable senator answer a question on that point?
– Yes.
– Are solicitors or barristers admitted to practice in the A.C.T. by virtue of their admission to practice in the’ States before coming to the A.C.T.?
– So I understand.
– But not the reverse?
– There is no constituted profession in the A.C.T. admission to the Supreme Court of which entitles members of that profession to admission in the States. But I do not know whether any ordinance of the A.C.T. at the present time places in the Supreme Court of the Australian Capital Territory jurisdiction to admit practitioners, apart from their entitlement to practise as State practitioners. I believe there is not. 1 believe that all practitioners here would owe their admission to practice to the Supreme Court of the Australian Capital Territory to their State qualifications.
– There is provision for separate admission to the High Court. Apart from the admission to the State Courts, there is provision for admission to the High Court.
– If the honorable senator will throw some light upon that matter at a later stage I will be most obliged. What 1 am saying is that the Ministers second reading speech indicates an intention to establish Territory practice separate and apart from the States and an intention to provide for Territory ordinances to create conditions for admission to practice in the Territories. When we look at section 49(1.) of the Judiciary Act, if that is the relevant provision, we note that the legislation which we are asked to pass says, in effect, that hitherto the section has given all State practitioners automatic right to practise in the Territory but that the Government proposes to repeal that provision and authorise the Territory by ordinance - that is to say, authorise the Executive Council of the Commonwealth by ordinance - to establish conditions restrictive to State practitioners practising in the Territories.
When Senator Cormack addressed his question to me, I was adverting to the con stitution of this separate territorial profession. I wanted to add a recognition of what has been said, I think, by the AttorneyGeneral (Mr. Snedden) in debates in another place, that this Territory has within it the Australian National University which has a very valuable school of legal studies. By reason of the recent coalescence between the old Territory college and the Australian National University, the law school has begun to take on virility and initiative that command the greatest respect. One recognises that the very constitution of a profession either in a State or in a particular area such as a Commonwealth Territory is not for the purpose of giving privilege to practitioners. It is to permit a degree of supervision of practices so as to give practitioners an efficient and a professional objective that will afford them the opportunity of developing the best skill they can for the service of their community.
But it seems odd to me to say that because we have a university here which is the Australian National University - one which, prima facie, would be open to every scholar from the Commonwealth - that University should be the nucleus for recruitment to a Territorial profession only from within the area of the A.C.T. I would think that the existence of the Australian National University was for the purpose, so far as law is concerned, of legal education throughout the Commonwealth. I would not have regarded the undergraduates there as people who were preparing themselves especially for legal practice within the confined space of the A.C.T. I may be wrong in this respect. It is now clear - or I suggest it is clear, and I hope the Minister will correct me if I am misunderstanding the position - that the purpose of this Bill is to create a Territorial profession and to enable ordinances to be issued by the Federal Government creating conditions for the admission of practitioners within this Territory. We were told by the Minister in his second reading speech -
It is not intended to be used for the purpose of closing Territory practice against Slate practitioners, but will enable the Territories to control legal practice within their boundaries in the sama way as the States are able to do, and will enable the Territories to move towards a proper basis of reciprocity in these matters.
It seems to me to be quite unreal to talk of reciprocity in relation to Territories and
States. Such talk presupposes a parity between the two. Senator Murphy has referred to certain guarantees that were given in the Federal Constitution which would prevent discrimination or preference- as between residents of States or States themselves. Section 92 of the Constitution, which is a very important provision, gives expression to the concept that trade, commerce and intercourse between the States shall be absolutely free. It will be noted that the section does not say between the States and Territories. I. recall an occasion in the Senate when we had the advantage of a submission by the present Acting Leader of (he Government in the Senate, who is in charge of this Bill, protesting against a provision in the Australian Capital Territory which gave special rights to some trader. The special rights could be given because the Territory was not bound by section 92 of the Constitution. 1 do not see that the Territories are on the same level as the States in regulating reciprocal practice for members of the legal profession. It seems to me that the original approach to the Judiciary Act was the correct one. The State provisions were accepted as the basis upon which the people who practise in the Territories should come, and State practitioners were given automatic admission to the various Federal courts. 1 am partly persuaded by Senator Murphy’s argument. He drew our attention to the remarks of the Attorney-General in another place in relation to a closed shop and to the fact that, by passing this Bill, we will be giving power to the Executive to create, by ordinance, conditions for admission to Territory practice, not for the purpose of excluding State practitioners but to provide a lever for the Territories to negotiate proper terms of reciprocity as between the Territories and the States. I should like to hear real argument on that point for the purpose of informing my mind. It is for that purpose that I have risen. I hope that the debate will continue and that, especially in the Minister’s reply, some comment upon these difficulties will be made.
– I wish to speak to the Bill only briefly. I think all the points I should like to have made have been made already by Senator Murphy. Perhaps anything that 1 do say could be more appropriately said when the measure is being dealt with in Committee. The question raised by Senator Wright in relation to the purpose of the Bill could well be dealt with by the Acting Leader of the Government in the Senate (Senator Gorton) in his reply. I see a certain measure of merit in the proposition relating to proposed limitations on persons who may practise in the Australian Capital Territory, but 1 find it very difficult to relate whatever merit there is in the Bill to the statement that was made by the Attorney-General (Mr. Snedden) in another place. As I understand the situation, any person who has been admitted to practice in any of the States is able to practice in any of the Territories. Although I cannot specify the relevant section, I understand that there is also provision for separate admission to practice by the High Court of Australia. Quite a number of persons who are employed by the Commonwealth AttorneyGeneral’s Department have been so admitted. Presumably those people would be eligible to practise also before the Supreme Court of the Australian Capital Territory or any other court of a Federal Territory.
From what one can read into the statement that was made by the AttorneyGeneral in another place, it appears that the Government is endeavouring to give some sort of protection to practitioners, and to persons who need the services of practitioners, particularly within the Australian Capital Territory, but also in other Territories by allowing the Territories to fix their own requirements for admission to practice. The position as it is now is that a person from any Stale may practise within the Territories, but there is a possibility that a person who is eligible to practise within a Territory may not be able to practise within a State. Although this is not so at the present time, conceivably a situation could arise in which practitioners from New South Wales would be able to practise inside the Australian Capital Territory but persons who were qualified to practise in the Australian Capital Territory would not be able to practise in New South Wales. A situation could arise in which a solicitor from Queanbeyan would be able to come to
Canberra and appear before a magistrate here but a solicitor who was practising in Canberra would not be able to go to Queanbeyan and appear there. This would impose an unnecessary disability upon Canberra practitioners.
As I understand the Bill, the provision which is designed to give to the Territories the right to make ordinances in regard to persons who shall be eligible to practise within the Territories is meant to be some sort of weapon to enable the Territories to say to the States: “ If you don’t allow our practitioners to practise in the States, then we will not allow your practitioners to pratise in the Territory”. In -the long run, the purpose would be to achieve some unification by using a stick with which to repel any onslaught on the ability of Territory practitioners to practise in the States. But where the confusion arises is in relation to the statement of the Attorney-General that the Government has no intention of doing any of these things in the Territory, that it is opposed to the principle of creating a closed shop, and that, whatever may happen in the States it will not limit rights to practise in the Territories. If that is the attitude of the Government, then I, like Senator Wright, am puzzled as to the purpose of the relevant provision in the Bill. It seems to be strange to say: “ We are introducing a Bill to enable us to have a weapon but we are promising here and now that we will never use this weapon “. That is the mystery in the provision that has been referred to. This is a point which I think a number of honorable senators would like the Minister to clarify.
.- in reply - Most of the debate on the Bill so far has centred around the proposition that the measure seeks to give power to the Commonwealth to enable it by ordinance, in the Territories under its control, to give to the Supreme Courts the right to impose such restrictions as they wish upon persons who practise before them. The Bill before us does not seek to do this; all it does is to provide for an ordinance making power. One of the reasons for seeking to give that power lies in the fact that at the present time there is a considerable difference between the laws of the States as to who shall be enabled to practise before their courts. The States have an unrestricted right to impose such restrictions as they wish.
– By statute law?
– I am not sure by what form of law it is.
– That right is provided by statute law.
– And by rules of court.
– The States have the right. That is the point I was really seeking to make. They exercise this right in different ways. I am told that in Queensland, for example, as mentioned by Senator Murphy, before any qualified person, or person considered qualified in other parts of Australia, can practise before the Court, there is a residential requirement.
– And the person concerned must cease to practise in the courts of the other States.
– There is a residential requirement and a restriction on practise in other places.
– An exception can be made in special circumstances.
– Yes. South Australia also requires a residential qualification and reciprocity in relation to qualifications between it and another State. Western Australia has a residential requirement and requires complete recognition for solicitors but does not recognise barristers at all unless they satisfy the residential requirement. New South Wales requires reciprocal arrangements with other States to be agreed between it and some other State before a person from that State will be permitted to practise before the New South Wales courts. Victoria has fairly complete recognition. Tasmania has some restrictive requirements referring to reciprocity between it and some other State and barristers, demanding that no matter what their qualifications may be in other States or whether they are required to practise as barristers and solicitors, they cannot practise in Tasmania as barristers other than under conditions of reciprocity.
But the point is that those States do have the right to impose restrictions on those whom they will allow to practise before their courts, and they use those rights in considerably different ways. The Territories wish to have some restrictive right because they tlo not want to be in a position where those graduating from a university in a Territory or admitted to practice in a Territory - should there be a means by which this takes place - find suddenly that they are barred from practising in a Stale. They do not want a position where a State could say: “ Sorry, we do not recognise your qualifications. You cannot practise before our courts”. In such cases the Territories do not want to be in a position where they can not say: “ If you do not recognise the persons qualifying here and allow them to practise before your courts, we will not recognise the persons from your States and will not permit them to practise before Territory courts “.
This seems to me a perfectly reasonable protection for those to whom Senator Wright referred - that is, those who come from the States of Australia, attend the Australian National University, qualify there and possibly obtain admission to the Bar but suddenly find that because they came from some other State to get the qualification in the Territory, they might not be allowed to practise in the State from which they came originally. The Bill also has relation to transferring the seat of practice. A person who had a practice in the Australian Capital Territory and sought for one reason or another to move to some other State lo continue that practice might find he was refused permission to do so and there was no lever, as it were, which might lead to a reciprocal arrangement between the State and the Territory.
It is true for what it is worth - and, as Senator Murphy said, it is not legally binding in any way - that the Attorney-General (Mr. Snedden) said he had no intention of suggesting that there should be imposed in the Territory a closed shop. But it would be of advantage to have the ability to say to any State which sought to impose grave restrictions on those who qualified here or were practising here that if the restrictions were imposed, there would be some reciprocal imposition of restrictions in the Territory itself. That is what prompted an honorable senator on the Opposition side to say that this could lead to greater uniformity rather than greater diffusion.
– This applies only to the Attorney-General of the day. He cannot bind any future Attorney-General.
Senator GORTON__ That is perfectly true and theoretically it would be quite possible at some future time for an ordinance to be made to the effect that the right of practice in the Territory would be restricted to those resident in the Territory. That is the theory.
Sitting suspended from 5.46 lo 8 p.m.
– I was speaking of the reasons why 1 felt it would be of advantage to legal practitioners - not a new professional branch but the same branch, growing up in a new geographical area, as it were, in the Territory - to have, through their court and ultimately through their Government, the ability to engage in discussions with the various State Governments as to the reciprocity to be provided between them in relation to the conditions under which practitioners from the Territory should be able to practise in the States and practitioners from the States to practise in the Territory.
The Attorney-General has said that if we have this power he will not use it to create a closed shop. 1 have already explained the point regarding the residential qualification. Indeed, the Attorney-General may not use the power at all. Senator Murphy asked what was the point of having this sanction if it were not used. 1 think the answer to that question is that this is not so much a sanction as a power to use a sanction if it is required in order to reach agreement with a State. In other words, it is the ability to bargain instead of being in a position in which there is no ability at all to bargain as to reciprocity.
Senator Cormack suggested that, theoretically, some future Attorney-General might use the powers which this Act will give him to make a Territory ordinance to prohibit people from outside from practising in the Territory. Theoretically, this would be true, but there are two practical reasons why that would be the most unlikely thing that one could imagine happening. One practical reason is that if it were done one could expect the States to reciprocate in precisely the same terms against people who had a legal practice in the Territory. I think the other one is that a Territory ordinance, though it is made by the Governor-General in Council, is subject to the scrutiny of the Parliament, to the best of my knowledge, and to disallowance by the Parliament, to the best of my knowledge. A theoretical, arbitrary, reasonless approach of this kind would be not only hurtful to those whom it was sought to protect, such as the legal practitioners in the Territory, but also most unlikely to get past the scrutiny of the Parliament itself.
Really, the choice here for the Senate, I think, is: Do we want this Territory to be the only part of Australia in which practitioners from any other part of Australia can practise and nobody can say them nay? Or do we wish this Territory, for the protection of legal practitioners who either get their qualifications here or who move here and later wish to move away, to have through its Supreme Court the same regulation over those who may practise before the Court as all other parts of Australia have? Ultimately I would philosophically, I think, like to see what Senator Murphy envisages, namely, that throughout the whole of Australia there were not these restrictions able to be applied to those who have practised or who have gained their qualifications in some other part. But the practical fact of the matter that faces us is that we do. have in six different parts of Australia Supreme Courts with the right to restrict, and using that right, by various methods. I believe that this Territory, too, should have the same capacity in this field as is had by the States. Senator Wright might advert in Committee to the necessity for section 49 and why the existing provisions of section 49 should not continue to apply. If the honorable senator would not mind, I would prefer him to wait until the Committee stage before raising that point again. I have in my mind advice which has been given to me on the reasons why it is felt that under present day circumstances the provisions should be varied, but I would be happier if I could have that advice reinforced more directly during the Committee stage of the Bill.
Question resolved in the affirmative.
In Committee.
Clauses 1 to 3 agreed to.
Clause 4 (Repeal).
– This clause seeks to repeal sections 49-50 of the principal Act and the heading appear ing before, section 49. AsI pointed out in my speech during the second reading debate, section 49 states -
Any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any Federal Court or in any Court of the Territory . . .
I do not see any reason for the repeal of that provision, and I certainly do not see any reason for the camouflage by which the repeal proposal is enshrouded in this Bill. I have shown, I think, that the clause restates that right in some three pages of print and then ends by stating, in effect, in proposed section 55d (6.), that, notwithstanding anything required in the previous provisions of the section, a law of the Territory may create such restriction on admission to practice in a Territory as the law of the Territory sees fit to impose. In effect, that is what the clause means. The whole purpose of repealing section 49, I believe, is to establish that restriction. I do not know of any consultations that the AttorneyGeneral (Mr. Snedden) has had on this Bill with the Law Council of Australia. I do not know of any consultations that the Attorney-General has had on this Bill with any other professional body. I should have thought that a provision such as this, which seeks to repeal section 49, is something upon which the advice of the Law Council of Australia could be expected to be quite helpful.
I suggest to the Committee that in the amendments which Senator Murphy proposes to put before us the vital amendment is to the section I have mentioned. I think we have reached a stage in the discussion of the Bill where there is real concern about the apparently admitted operation of the section that will be substituted for section 49, which, as I have said, will be repealed by the clause now under discussion. Why does the Executive now want an ordinance which will create conditions which will have the effect of excluding State practitioners from practising in the Territory, while at the same time saying: “ We do not want to exercise that power “? I do not think that is a really adult proposition.
I would like to see progress reported and the matter considered again after some inquiries have been conducted. I would think there is no case for the repeal of section 49, which gives an unqualified right to any
State practitioner to practise in any Federal court or in any court of a Territory. The discipline proper to a profession in the Australian Capital Territory could be applied by requiring all practitioners entitled to practise to register with the Registrar of the Supreme Court of the Australian Capital Territory, just as State practitioners are required at present to register with the High Court of Australia before exercising that right in the High Court. The proposition that I advocate militates in no way against the proper supervision of practice by the Supreme Court of the Australian Capital Territory. Proper disciplinary rules can be laid down and a law institute or a law society can be established within the Territory which will take into its cognizance all members who practise in the Territory and are registered with the Registrar of the Supreme Court.
– There is already a law society.
– In embryo or in existence?
– It has been established.
– How recently?
-I do not know, but it functions now.
– -I asked for enlightenment about an independent right of admission to the High Court, in relation to which the honorable senator interjected before the suspension of the sitting, but his speech did not give it to me. If there is a law society, let us have the relevant ordinance. No-one would suggest there is any difficulty about creating proper supervisory machinery in relation to all practitioners practising in this Territory. For myself, I am opposed to the repeal of this section. However, the clause is so vital to other clauses of the Bill that I suggest further time be taken to consider it.
– There is very little difference between our approach to this matter and that of Senator Wright. We would seek to preserve the right which is now incorporated in the present section 49. The Bill seeks to redraft and reframe the whole of these provisions. We have sought to interfere as little as possible with the frame which the Government has adopted in the Bill, and the amendments which have been circulated are directed towards certain aspects of that frame. If the amendments which we seek were not accepted, we would, as a matter of consistency, support the view which Senator Wright has advanced. I would suggest that clause 4 be postponed until after consideration of clause 5. This may avoid unnecessary argument on the matter and perhaps avoid the taking of a course which would be unnecessarily destructive of the framework which the Government has adopted. I move -
That consideration of clause 4 be postponed until after consideration of clause 5.
– I would not have any objection to considering clause 4 after clause 5. However, I do not want it to be assumed because I raise no objection to that course that we do not consider the repeal of section 49 as of the essence of this Bill. We regard it as of the essence that a barrister or solicitor registered in any State should no longer have a completely unrestricted right to practise in the Territories. We consider it essential that the supreme courts lay down the rules on which such a barrister or solicitor may practise in the Territories. If honorable senators desire clause 4 to be considered after clause 5, I will not raise any objection.
Question resolved in the affirmative.
Clause 5. (1.) After section 55 of the Principal Act the following Part is inserted: - “ Part VII Ia.- ‘Legal Practitioners. “ 55a. A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section eighty-six of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be. “55b. - (1.) Subject to this section, a person who-
. -I have circulated a number of amendments to this clause. First, I move -
In proposed section 55a, after the word “ court “ insert “ or court exercising federal jurisdiction “.
A similar principle applies to this amendment and the next three amendments that I have circulated. Perhaps that principle could ‘be dealt with in the debate on this amendment. The effect of this amendment would be that a person who had been admitted to practice as a barrister or solicitor under the rules - in effect, the High Court rules - would be entitled to practise not only in a Federal Court but in any court exercising Federal jurisdiction.
As I mentioned before, these words are well known. For many years, the Commonwealth Crown Solicitor has been entitled to practise as a solicitor in any Federal court or court exercising Federal jurisdiction. That is provided for in section 50 of the Judiciary Act. That section entitles him to act on behalf of the Commonwealth not only in Federal courts but in other courts on which the Parliament has conferred Federal jurisdiction. The main way in which this Federal jurisdiction has been conferred is by the Judiciary Act itself. Section 39 (2). provides -
The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction an be conferred upon it . . .
Then there are some exceptions and some conditions and restrictions about appeals and so forth. But, in substance, a great deal of Federal jurisdiction in the strict sense has been conferred upon the courts of the States. This is jurisdiction which is exercised by the High Court or which, by appropriate legislation of this Parliament, could be exercised by the High Court. The Parliament has seen fit, as a matter of convenience, to confer this Federal jurisdiction on other courts - the State courts.
It is only common sense, we submit, that where the Parliament has conferred Federal jurisdiction the practitioners who are able to practise in the High Court and the other Federal courts should also be able to practise in the State courts when they are exercising Federal jurisdiction. The persons who are entitled to practise in the Federal courts are those who are entitled to practise in State courts. Persons admitted under the laws of the Territories will also be entitled to practise in Federal courts if this Bill is passed in its present form. We say that such persons ought to be entitled to practise in any court that is exercising the Federal jurisdiction conferred by the Judiciary Act.
These persons must be qualified. They must be capable of practising in the High Court itself. Such persons would be entitled to deal in the High Court, on appeal, with the very cases which would be dealt with under (his invested Federal jurisdiction. In an appeal they would have to deal with the facts, the law and whatever else was involved in the matter. We say that common sense dictates that these persons, whether they come from the States or from the Territories, ought to be able to appear in any court that is exercising Federal jurisdiction. This is not merely a matter of the rights or privileges of legal practitioners; it is a matter of the rights of the citizen.
– Is there any doubt about the authority of this Parliament to pass a law as to who should have the right to practise in a court exercising Federal jurisdiction? Do we not take that court as we find it and invest it with Federal jurisdiction?
– The best answer to that may be that for many years the Judiciary Act has contained a provision that entitles the Commonwealth Crown Solicitor to appear in a court exercising Federal jurisdiction. That has never been challenged.
– Would the honorable senator consider section 86 (ga) which is referred to in this clause and which relates to the admission of persons to practise as barristers or solicitors in any Federal court?
– Yes.
– 1 just mention it. 1 do not know what the answer is.
– That provision enables the making of rules of court of the character to which Senator Wheeldon has referred. In other words, the High Court could make rules for the admission of persons who did not come under the provision to which Senator Wright referred earlier, that is to say the provision in the Judiciary Act that enables persons to practise in any Federal court. In addition to that provision there is the provision in section 86(ga) which permits the High Court to make rules providing for the admission of persons to practise in a Federal court. So there are two ways of being admitted to practise in a Federal Court. One is by virtue of the Act itself and the other is by virtue of rules, if rules be made.
– Have any such rules been made?
– Senator Wheeldon assures me that they have been made, and that is my own recollection.
– In any case, they would be subject to section 49, would they not?
– They would not be subject to section 49 in the sense that that section would debar admission in some other manner. The right under section 49 could not be cut down by such rules, but obviously the Act intends that they could confer an additional right to admission.
We are dealing here with the rights of citizens. This enactment should not be looked on as merely the concern of legal practitioners. We are concerned with the administration of justice and the entitlement of persons to have the legal practitioners that they want. We could not work a system of justice in our community without advocates able to appear in the courts and fight for the rights of citizens and the rights of corporations, whether they be business corporations or trade unions. All institutions and persons depend upon the assistance of experienced practitioners. In our specialised modern world, it would be impossible for anyone, except a rare individual, to prosecute his own rights in a court of law. This is the way it should be looked at. In addition, the proper functioning of courts depends upon the best legal assistance being available to them. If we are setting up a system where persons can be registered federally, so that they have the right to appear in the High Court of Australia and in other Federal courts, we say that surely those persons ought to be able to appear in the other courts which are invested with Federal jurisdiction. If persons can appear in the High Court, which is invested with such wide jurisdiction, surely they should be able to appear in the other courts. When we are dealing with the Federal jurisdiction - that is, the jurisdiction of this Commonwealth, conferred by this very Parliament - we should, to that extent, break down the barriers which have been set up between the States. That is the purpose of this amendment. We can go that far, and we should go that far, to break down those barriers.
– As I understand, the present position is that the State Supreme Courts do have and do exercise authority to decide who is to be allowed to appear before them. That is a right which they exercise without diminution, except that the Commonwealth Crown Solicitor is, by law. given the right to appear before these courts in certain limited circumstances - that is, when he is acting in his official capacity on behalf of the Commonwealth or on behalf of Commonwealth personnel. It is because the State Supreme Courts have and exercise these rights that we seek, in another provision of the Bill, authority for the Territories to exercise similar rights. But the proposition here is that, as a Commonwealth Parliament, we should say to a State Supreme Court which has been exercising certain authority in the past: “ We intend, by law, to diminish that authority. Whether you like it or not, in future the people who we say can appear before you must be permitted to appear before you if you are exercising Federal jurisdiction.”
Senator Wright has raised some question as to whether this lies within the competence of this Parliament. Our legal advisers think it does, but are by no means sure that it does. No doubt this would be a matter which would have to be argued out in a court. We do not want to impose - even if we have the right to do so - a limitation on the rights which a State Supreme Court has previously exercised in deciding who it will or will not allow to appear before it. Therefore, we do not wish to accept the amendment. We wish the clause to state, as it does at present -
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practice in any federal court as a barrister or solicitor, or as both, as the case may be.
We do not want to take this further and say to a State court: “You must let this person practise in front of you if you are exercising Federal jurisdiction.” That is where we stand.
.- In order to clarify my mind, I will put the position in this way: Federal courts are the High Court, the Commonwealth Industrial Court, the Supreme Court of the Australian Capital Territory and the Bankruptcy Court. There may be other Federal courts, but I think I am correct in saying that each of those four is a Federal court. Under the provisions of the Judiciary Act several other courts, notably the State Supreme Courts, are invested with Federal jurisdiction. For the sake of simplicity I will refer only to the State
Supreme Courts. They are invested with Federal jurisdiction in relation to any matter dealing with interpretation of the Constitution. I speak from memory, but I think that is right. We have on one hand the High Court, the Commonwealth Industrial Court, the Bankruptcy Court and the Australian Capital Territory Supreme Court, and on the other hand we have courts invested with Federal jurisdiction, including each of the State Supreme Courts. Proposed section 55a states -
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section eighty-six of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
Senator Murphy wants to insert the words “ or courts exercising federal jurisdiction “, before the words “as a barrister or solicitor”. I ask the Senate to bear with me while I draw attention to proposed section 55b, which deals, not with the person who is admitted to practise in a Federal court under the rules of section 86 of the Judiciary Act, but with the person who is, for the time being, entitled to practise as a barrister or solicitor in the Supreme Court of a State or who is entitled, under the law of a Territory, to practise in the Supreme Court of the Territory and who has a like entitlement to practise in any Federal court. Section 55a deals with the admittee under the judicial rules. Section 55b deals with, as one of the main persons, the person who is admitted in a State. Those two sections merely repeat in a roundabout way what is written in section 49 of the existing Act, that the Federal admittee and the State supreme court practitioner are entitled to practise in any Federal court.
I mention that fact because I think that if one comes back to section 55a and considers that section only to be applicable to a Federal admittee, that is, someone who is admitted, for instance, under the rules to practise in the Supreme Court of a Territory, such as the Australian Capital Territory, it is a very wide extension to say that that person should be given the right to practise in any State Supreme Court exercising Federal jurisdiction. Further, if one combined the two sections and included Senator Murphy’s amendment, it would have the effect, under section 55b, that a person who had been admitted under the rules in New South Wales to practise in the Supreme Court of New South Wales would receive automatic entitlement to practise in any other Supreme Court exercising Federal jurisdiction. It is a very wide extension. I would like to consider the matter. It is an extension that I would not feel justified in accepting as incidental to a Bill of this sort. I believe that Senator Murphy’s proposal is really unnecessary and involves an extension, the basis of which has not been justified at the present time.
Now I would like to address myself to a few remarks that were made by the Minister. When dealing with Senator Murphy’s amendment he said that Federal admittees were being given the right to practise in the Australian Capital Territory, subject to conditions, in the same way as State practitioners are given the right to practise subject to the State conditions. The condition* in the Federal jurisdiction are laid down by the judges in section 86 (ga). The rules prescribe the conditions. Section 86 (ga) states that the judges may make rules -
Providing for the admission of persons to practise as barristers or solicitors in any Federal Court, and prescribing the conditions of and qualifications for admission . . .
As far as I am aware, in every State the conditions of admission are written into an act of the Parliament. If that course were adopted in the Federal field and the conditions for admission in the Australian Capital Territory were laid down in a statute, we would then know the degree to which a close preserve was going to be created in the Australian Capital Territory. But at the present time the Bill says: “ Give us the power, and when the ordinance comes before you, you can disallow it if you are not satisfied with it.” That is not a very satisfactory was in which to put “legislation before the Parliament. I simply add that observation in reply to the Minister’s remarks.
Senator WHEELDON (Western Australia) T8.44]. - I would like again to speak briefly on this matter. As I understand it, the purpose of the amendment which has been moved by Senator Murphy is to remove some anomalies which exist at the present time. One of the anomalies was pointed out to me by an honorable senator opposite, whom I shall not mention in case he should be embarrassed. It refers to the administration of the Customs Act. Of course, a number of State courts administer the customs law under the Commonwealth Customs Act, and in doing so the State courts are exercising Federal jurisdiction. There could be the anomalous circumstance that a practitioner was not entitled to appear in a prosecution held in another State under the Customs Act, was not entitled to appear in an appeal from the magistrate’s decision to the Supreme Court of the State, but was entitled to appear in an appeal from the Supreme Court’s decision to the High Court, although the facts and the law were identical in every instance. The curious state of affairs would prevail whereby a man could appear in the highest court but could not appear in the lower courts.
A particular anomaly which occurs to me results from the administration of the Bankruptcy Act. The Federal Court of Bankruptcy, as I understand it, sits in only some of the Australian States. To my recollection, it has never sat in Western Australia. In Western Australia the type of proceedings which are heard before the Federal Court of Bankruptcy are heard by the Supreme Court of Western Australia exercising Federal jurisdiction. The situation is that those fortunate persons who live in New South Wales or Victoria have the benefit of being able to brief Western Australian counsel to appear on their behalf before the Federal Court of Bankruptcy, but Western Australians, if they were so inclined, would not be able to obtain the services of counsel from New South Wales or Victoria to appear on their behalf because the proceedings would be heard before the Western Australian Supreme Court.
These are only minor matters, but they do indicate a fairly substantial series of anomalies in the law as it stands at the present time. The purpose of the amendment is to remove these anomalies. It would appear that the occasion on which we consider a matter such as the Judiciary Act is the best occasion that we have for taking steps to remove these anomalies. That is the purpose of the amendment.
Senator MURPHY (New South Wales) 1.8.47]. - Perhaps the matter might be looked at against the background of the other provisions of the enactment. We have the problem, which has been adverted to, of the exclusion from a State of practitioners from other States and the possibility that practitioners from the Territories, particularly those from the Australian Capital Territory, might be exluded from practising in a State. The Attorney-General (Mr. Snedden) has spoken of this matter in terms of great disapproval. As I have read his remarks, he has suggested that neither he nor anyone else ought to tolerate this kind of exclusion. Yet the position remains that there is such an exclusion, and a very drastic exclusion, in respect of one of the States.
This position is regarded as being so evil that steps are being taken in this Bill to enable the Government, through an ordinance in the Australian Capital Territory, or, giving the matter its wide ambit, in other Territories, to exclude practitioners from practising in such Territory. This matter is regarded as being a very great evil. It is said that we must have power to threaten although we will never use it. Something must be done to break down such a barrier because it is wrong. Do not we get to the fundamental position that such exclusion of persons who are otherwise qualified is bad?
The amendment which I have moved would enable the Commonwealth to break down the barrier to the limits of what the Commonwealth can do. In other words, we are saying to the States: “ We cannot get in behind your State barrier and interfere in your control of the exercise of State jurisdiction. That is your own problem.” I think it would be wrong for the Commonwealth to endeavour, in the way in which it is sought in this Bill, so to interfere with a State in the control of its State jurisdiction. Yet the Government is prepared to do this. It is prepared, in effect, to threaten a State in respect of its own Stale jurisdiction. My amendment does not seek to go so far. All it says is this: “ If this is the case, let us deal with it properly and fairly and within the limits of our power in relation to Federal jurisdiction “. This is what we say. If the Government wishes to have that barrier in relation to State jurisdiction, there is not much we can do about it. But insofar as the Government seeks to raise that barrier - and the Government has been doing this in relation to Federal jurisdiction - we will not permit the Government to do it any longer.
What argument can there be against this proposition once it is recognised that the evil exists and that it ought to be stopped? That is the very kernel of this Bill. The Government recognised this when it included the provision to enable the Territory to have an ordinance excluding State practitioners. Surely, then, the Government ought to see the wisdom of using the power of the Commonwealth in a legitimate, direct and straightforward way, by saying that there shall be no barrier in any State against a practitioner practising in the Federal jurisdiction of any court when such a practitioner has to be accepted by the High Court itself as qualified to practise in the High Court and any other Federal court of the Commonwealth. We submit to the Committee that it is really unarguable.
.- Before the Minister for Works rises to reply to the matters which have been raised in the last 20 minutes or so, I wish to ask. if I may, in the course of a few remarks that I have to make, a question or two on which 1 hope the Minister will ease my worries. I intrude in the debate which relates to the sensitive area in which barristers and solicitors practise and of which the layman has little knowledge. Most of us sitting here tonight are laymen, but we shall be required to vote upon this matter. There are two matters that worry me in relation to the amendment now before the Committee. Perhaps these matters have no validity but I should like to have them explained. Proposed new section 55b (1 . ) provides -
Subject to this section, a person who -
is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State. . . .
I assume that is in relation to the rules of the Supreme Court in the jurisdiction of the Territory. What would be the situation, for example, of an indigenous inhabitant of the Territory of New Guinea which is administered with Papua as one unit - therefore, I suppose, for the purpose of this Act Papua and New Guinea will be regarded as a Territory of the Commonwealth of Australia - who is admitted to practise in the courts of the Territory as defined in the proposed Act? Would this person be required as he is at the present moment, whether he is a barrister or anybody else, to obtain permission to come to Australia before he can practise here? This is one thing that interests me. and is probably capable of a simple explanation.
The other matter that disturbs me is this: There has grown up - properly, I think - as a result of the impetus given to these matters which relate to what might be described as the concurrent powers, the annual conference between the Attorneys-General of the States and the Attorney-General of the Commonwealth. I invite the Minister to explain to me whether this matter has been canvassed at the conference of the Attorneys-General; whether the AttorneysGeneral from the States offered objections to it or would not agree to it; or whether, as the result of failure within the AttorneysGeneral’s conference to achieve some sort of consensus or comity in relation to this matter, the Commonwealth is now taking out powers, as it were, in force majeure in order to compel the Attorneys-General of the Slates to succumb to a pressure which the Commonwealth wishes to exert against them.
– In answer to the two points Senator Cormack raised I state that, to the best of my knowledge, the AttorneyGeneral (Mr. Snedden) has not consulted the State Attorneys-General concerning this Bill. As the Bill is drawn, and not as it is suggested it might be amended, the measure refers purely to practice in Federal courts and to laws applicable to the Territory and does not seek in any way to interfere with the jurisdiction of the Attorneys-General. Indeed, part of my argument has been that J do not wish this amendment to be carried because this would be saying to the State Supreme Courts: “ Even if you wish to keep people who are registered in the Territory from appearing before you, you cannot if what is being discussed is a matter under Federal jurisdiction “. There is no question of force majeure in the Bill. It relates to the provision applicable to the Territory and practice in Federal courts.
With relation to the specific question the honorable senator raised, I am told that should there be an indigenee of Papua and New Guinea qualified to be admitted to practise before the Supreme Court of that Territory, that person could under the Bill as it stands now, if he were briefed to do so, come and practise before a Commonwealth court. He could not practise, as the Bill is drawn, before a State court which was exercising Federal jurisdiction, but he could do so if the Bill were amended as it is suggested it be amended.
I do not believe that Senator Murphy’s suggestion that what this Bill proposes is threatening the States is true in fact. What this Bill is seeking is the ability to make reciprocal conditions which are equivalent to those made by any State. This can scarcely be described as threatening a State. If this provision is passed, it will permit the Commonwealth, should a State say, “ These are the conditions which we apply before we will let someone registered in the Australian Capital Territory practise before us “, to provide the same conditions to apply to people registered in that State. It will also permit the Commonwealth, if the State places no legal bar in the way of somebody registered in the A.C.T. from practising in that State, to place no legal bar to people registered in that State practising in the A.C.T. It would entitle that reciprocity to be engaged in. That, I think, cannot be described as threatening.
The suggestion was made - I think it was made by Senator Murphy - that we were in some way putting pressure on the States. I could not quite follow the argument because a Territory makes regulations concerning its own jurisdiction. These are Territory courts about which we are speaking here and not Federal courts. The Supreme Court of the Australian Capital Territory is not a Federal court. It is a Territory court in the same way as the Supreme Court of a State is not a Federal court. The Territory makes regulations to give its Supreme Court inside its own jurisdiction the same sort of powers as are exercisable and exercised at present by State Supreme Courts in their own field of jurisdiction.
.- I wish to follow up the suggestion I made in the course of an exchange of question and answer earlier in the debate. I raised a query as to this proposal, by virtue of an Act of this Parliament, to give an admittee the right of audience before a State court exercising Federal jurisdiction. The Minister was good enough to say that he was advised that the power did exist, although this was subject to doubt. I have just noticed in some annotations to the statutes the case of Le Mesurier against Connor which is reported in Volume 42 of the “ Commonwealth Law Reports “, and a decision given in 1929. The majority of the High Court said -
Then, after pointing out a distinction with which I need not trouble honorable senators, they went on to say -
Doubtless Senator Murphy will remember that they were referring to a provision in the original Bankruptcy Act whereby the Parliament purported to appoint a Federal Registrar of Bankruptcy and then to give him certain powers to take steps in investigation and report to the court. The High Court negatived the validity of the imposition of that officer on the State structure. I am not suggesting for one minute that the judgment applies to an officer of a court such as a practitioner admitted to the court, but it is in the nature of a warning of the possibility of some element of invalidity in this proposal. I suggest that wisdom would dictate caution in pressing it further.
– Since that point has been raised, I think I should reply. First, the problem to which Senator Wright has adverted is really one in which the Commonwealth, apart from investing a State court with jurisdiction, seeks to alter the constitution of that court. Nothing of this kind is proposed in the amendment. The amendment is directed merely to entitling Federal practitioners to practise not only in Federal courts but in courts where Federal jurisdiction is exercised. This Parliament could take many steps to see that Federal jurisdiction was exercised effectually. It could make provision not merely for the entitlement of practitioners to practise but also for legal aid for litigants. The Federal jurisdiction includes, amongst other things the administration of justice according to the laws made by this Parliament, and the Parliament is entitled to see that those laws are administered properly. If, as here, we are faced with a situation where some States are raising barriers and are excluding persons who obviously are legally qualified to the satisfaction of the High Court, then it is time that the Parliament did something about the matter. It ought to see that this evil does not continue where Federal jurisdiction is concerned.
The next reply I would make to Senator Wright’s suggestion is that if, contrary to all that has been expressed here, the amendment were invalid, then the Acts Interpretation Act would operate. The legislation would simply be treated as though the amendment were not there and the enactment would otherwise be valid. There would be no doubt about this. A line could simply be drawn through the words which had been added. So no difficulty arises. If the honorable senator’s suggestion is correct, then the enactment would not be injured in any way. I note that Senator Wright assents to what I am saying. I ask honorable senators to agree to the amendment.
Question put -
That the words proposed to be inserted (Senator
Murphy’s amendment) be inserted.
The Committee divided. (The Chairman - Senator T. C. DrakeBrockman.)
AYES: 20
NOES: 25
Majority . . . . 5
AYES
NOES
Question so resolved in the negative.
.- I move-
In sub-section (1.) of proposed section 55b, after the word “ court “ insert “ or court exercising federal jurisdiction “.
This amendment relates to those persons who are entitled to practise in a Federal court. Under the previous amendment, entitlement depended upon the rules of the High Court made under the Judiciary Act, but under this amendment the entitlement would depend upon the foundation of right to practise in the Supreme Court of a State or to practise as a barrister or a solicitor or both in the Supreme Court of a Territory. If passed, it would mean that such persons, and in particular the persons in the Territory, would be entitled to practise in any Federal jurisdiction.
The purpose of this Bill has been to ensure that graduates of the Australian National University who happen to be practitioners in the Australian Capital Territory - and for that matter practitioners in other Territories - should be able to practise outside. This is to be enforced by ordinance if necessary under the laws of the Territories, in order to obtain some kind of reciprocity. In this amendment, it is proposed that such persons would have the right to go out and practise anywhere where Federal jurisdiction was being exercised. So it is stated here, in relation to persons entitled to practise in a State Supreme Court and in relation to persons entitled to practise in the Supreme Court of a Territory, that they will have the right to practise anywhere where Federal jurisdiction is being exercised and not merely in a Federal court.
If something is desired to be done for the practitioners in the Territories and especially the Australian Capital Territory, this is a way to achieve it. They could go beyond the confines of the Territory and practise, as well they might need to do in the interests of their clients. After all, it is the citizens who are the people to be considered. It means also that the practitioners admitted by the Supreme Courts of the States would have a like right.
– The argument applying to this amendment is the same as that applying to the previous amendment. The Committee has already decided that a person admitted to practise as a barrister or solicitor under rules made in pursuance of paragraph (ga) of section 86 is entitled to practise in any Federal court but should not be entitled to practise in a court of Federal jurisdiction as of right. The Bill provides that a person entitled to practise as a barrister or solicitor in the Supreme Court of a State should have the entitlement to practise in a Federal court but again we do not consider we should say to a State court that such a person should have the right to practise in any court that exercises Federal jurisdiction.
Amendment negatived.
.- I move-
Leave out sub-section (l.)(b) of proposed section 55d.
In moving this amendment, I withdraw the two proposed amendments which preceded it in the paper that has been circulated. It seems that both those amendments are consequential on the amendment that has been negatived. They relate back to it and as the two previous amendments have been defeated, the proposed amendments that I now withdraw could not operate. Therefore, I move the subsequent amendment. Proposed new section 55d(1.) states -
Subject to this section, a person -
We lake the view that the entitlement to practise in any Territory ought to be founded upon entitlement to be on the roll of barristers and solicitors of the High Court. Where the right to practise in a Territory is concerned, there ought to be as a necessary qualification, as well as a sufficient qualification, the registration on the roll of barristers and solicitors. We do not know what will be provided from time to time in the rules of the High Court, but we do know that these High Court rules will constitute a register and from time to time there might be some provisions made under the rules relating to such persons. In any case there would be a register kept. Rules made by the High Court are subject to disallowance by either chamber of this Parliament, so that any provision which might be made for such rules is therefore subject to control.
We take the view that inclusion in the roll ought to be a condition of practice in any Territory. This refers to a Territory other than the one in which a person might be admitted to practise. It relates to moving out of your own State or Territory and going to practise in another one. We think it would be a reasonable provision that a person who is on the roll of the Australian Capital Territory or of a State and who wants to practice in Norfolk Island or Nauru or some other Territory ought at least to be on the roll of the High Court and should be recorded by it as properly qualified to practise in the Federal courts. Otherwise, it would mean that persons who were not qualified and were not legally entitled to practise in the High Court and other Federal courts would nevertheless be entitled as of right to practise in any Territory.
– Is there complete reciprocity between the States now?
– No. Unfortunately, the most difficult State appears to be the one which the honorable senator represents. This is a matter of common knowledge. It is most unfortunate, but there the position is. The State of Queensland does not extend the right to practise to persons who are other wise properly qualified in its own eyes, unless they reside in Queensland and have ceased to practise in the courts of any other State where they were admitted and by virtue of which they seek admission in Queensland, unless in special circumstances. That is a strict rule. It does not touch the right of Queenslanders to practise in the Federal courts, and nothing that is proposed here would cut down the rights of Queenslanders in any discriminatory way. They would still be entitled to be registered on the Federal roll of practitioners, and they would then be entitled to practise as barrister or solicitor in any Territory. It seems reasonable enough at the very least to say that if a person is to go to the Northern Territory or to Norfolk Island the people in those Territories - the courts as well as others - should have a record of the roll of practitioners in the High Court, and be able to look at it and say, “ This man’s name is on here. He ought to be all right “, instead of having to search the records of the courts of the various States.
At the moment, the right to get on the roll of the High Court, is, as Senator Wright indicated, virtually one as of course. We suggest that, first of all, the names of persons who want to practise and want to be entitled to practise in any Territory, ought to be on that roll. Then we would seek - in answer to what Senator Gair was, perhaps, implying - in a subsequent amendment to see that, notwithstanding any restriction that the State of Queensland might impose, similar restrictions should not be imposed against it, because this is a matter of principle which cuts across any question of retaliation. The present amendment is directed towards ensuring a simple and common method of necessary qualification for practice in any Territory by a practitioner other than one who has been admitted in that Territory. If someone comes along and wants to practise, we say that he should be on the High Court roll and there ought to be no difficulty in getting on that roll.
.- The first thing that I would say about the suggested amendment is that if it were passed those persons entitled to practise as barristers and solicitors in any Territory would be those whose names appeared on the roll of barristers and solicitors of the High Court. I am informed that the only persons whose names appear on the roll of barristers and solicitors of the High Court are an extremely limited number of particular persons - about 20 - the roll of the High Court being different from the register of the High Court. The expression “ roll of the High Court “ was used in that sense by intention by the draftsman of the Bill. We would want it left that way - that those persons had the right to practise, but certainly not that only those persons had the right to practise.
– Can the Minister tell us where that entitlement by virtue of being enrolled is expressed? Perhaps the information can be given later.
– Yes. We wish that that small number of people be entitled to practise and also those people whom Senator Murphy’s amendment seeks to exclude, whose names are on the rolls of barristers and solicitors or of legal practitioners of the Supreme Court of a State or Territory. One of the reasons for wanting those whose names are on the roll of a Supreme Court of a State or Territory to be entitled to practise is that people who were enrolled as of right to practise in a State and then moved to a Territory and practised in the Territory became unable, in effect, to get a certificate of practice to show that they were practising in the State. They therefore could not be described as entitled to practise as barristers or solicitors in the Supreme Court of that State. Therefore, not being entitled to practise as barristers or solicitors in the Supreme Court of that State, they were not entitled to get on to the register of the High Court and therefore would be excluded. It was to seek to protect persons who were in that position and practising in a Territory that this clause was included, to provide that those who were enrolled in the roll of the Supreme Court of a State or the Supreme Court of a Territory should be entitled to be barristers or solicitors in any Territory. I strongly recommend that the Committee leave the paragraph in.
.- I should like the Committee to notice that under proposed new section 55b we are dealing with the right of certain persons to practise as barristers and solicitors in
Federal courts. This is a parallel section dealing with the right to practise as barrister or solicitor in the Territories. I submit that the proposed amendment would emasculate this provision to a degree that is wholly unwarranted, because upon the provision proposed to be deleted depends the entitlement of State and Territory practitioners to practise in another Territory. The Minister has referred to the distinction between roll and register, and I would be obliged if his officers would provide us with the statute in which the distinction is drawn. It would seem to me, without adverting to that, that it is imperative that we preserve in paragraph (b) of proposed new Section 55b (1.) the right of State practitioners to practise in a Territory, which is the very right under existing section 49 against the repeal of which I advanced argument in the first place.
Even if “ roll “ means “ register “, which is, I suggest, the real basis upon which the amendment was proposed, although all State practitioners are entitled as of course on presenting a certificate to be entered in the register of the High Court, it would be a very small percentage of practitioners, especially in the solicitors branch, who would be so registered in the High Court, and it would be mainly members of the solicitors branch of the profession who would wish to come to the Australian Capital Territory and practise here. For their entitlement to practise in the Australian Capital Territory they would still depend mainly on paragraph (b), which is the subject of the proposed amendment, I suggest.
– The difficulty raised by the Minister is very easily met in a way which is consistent with the proposed amendment. It is a simple enough matter, by another amendment, to insert after the words “ whose name is on the roll of barristers and solicitors of the High Court kept in pursuance of rules in force under this Act “ the words “ or on the register of practitioners kept in accordance with section 55c”. That is the simple way to deal with what the Minister has put forward, which undoubtedly is correct. But, as I suggested earlier, the test of entitlement to practise in a Territory other than the one in which a person happens to be admitted ought to be that he is either on the roll of the High Court or on the register of practitioners kept there.
The consistent and proper approach when one is considering the right of a person to go into another Territory is that he should be on the register of practitioners of the High Court or on the roll. A copy of the register should be in each of the Territories and should be available for inspection. The same Federal administration operates through them all. There would be then a document which says: “These persons are eligible to practise in the High Court and any Federal Court, and these persons are entitled also to practise in any Territory “. It is easy enough to get on that roll o: register. This would be a commonsense step, because a means of identification would be readily available for the courts of those Territories and one would not be faced with the problem of checking throughout the Commonwealth to see whether anything had been done in respect of a person’s entitlement to practise. I suggest that the proper test for entitlement to practise in another Territory is the roll or the register.
– It is quite true that we could insert “ roll or register “ but I want to point out why we do not want “ register “ whereas we are prepared to accept, and in fact want, “ roll “. Senator Wright asked where the distinction is drawn between register and roll. Proposed new sections 55b (1.) and (2.) and 55c (1.) and (2.) deal with the register, and I do not think there is any need to go into them in detail. The way in which people can get on the register of the High Court is dealt with. In proposed section 55o there is reference to a person whose name is on the roll of barristers and solicitors of the High Court kept in pursuance of rules in force under this Act. There are two distinct things. Unless that distinction is challenged - I understand Senator Murphy did not in fact challenge it - I think we can accept that there are these two things. We want to refer to those entitled to practise in this Territory who are on the roll as distinct from those on the register.
The reason why we do not want to make it necessary to be on the register and to be unable to practise unless one is on the register Is, as I tried to show previously, that we want to protect those who may not be on the register of the High Court or who may be removed from’ the register of the High Court. Those who were admitted) to practise in the Supreme Court of a State and who went through the process, as of right as it were, of getting on the register of the High Court, who then moved and practised in a Territory, who because they were practising in a Territory and not in the State of their admission were unable to get a certificate to the effect that they were practising lawyers in the State of admission and who, therefore, could not be described as entitled to practise as barristers or solicitors in the Supreme Court of a State because they had left that State and could not get the required certificate, could, in the case of Victoria, find their names removed from the High Court register.
Senator Murphy’s amendment is essentially restrictive. We feel that it is so restrictive that it destroys a protection that legal practitioners ought to have. It does not give the protection we wish to give to those who come from another State to practise in a Territory.
– I find it difficult to follow the reasoning of the Minister, lt is sought to delete proposed section 55D(l.)(b), which states -
Subject to this section, a person -
whose name is on the roll of barristers, of solicitors, of barristers and solicitors or of legal practitioners of the Supreme Court of a State or Territory, is entitled to practise as a barrister and solicitor in any Territory.
The Minister says that must not be deleted because persons who move from the Supreme Court of the State where they were practising would not be able to remain on the High Court roll and therefore would not be entitled to practise in another Territory. If persons move from the Supreme Court of a State and their names are not on the roll so that they are disqualified from being on the register of practitioners, how would this proposed sub-section help them?
– Because they would be on the roll of the Supreme Court of the Territory.
– If they were on the roll of the Supreme Court of the Territory, would not the clause which we have passed over entitle them to practise in the Federal court? Surely we must accept the position that they must be able to practise somewhere, and if they are entitled to practise in the Territory then they are entitled to be on the register of practitioners. That seems clear, does it not? There is nothing in this Bill which would disentitle a person who is entitled to practise, say, in the Australian Capital Territory from getting on to the register of practitioners kept in the High Court.
– 1 am told that there is.
– Then I would like to be told, first, where that provision is, and then why that is so. If this Bill seeks to assist the practitioners in the Territories, why on earth should it contain any provision which would disentitle a person from being on the Register of Practitioners kept in the High Court if he is entitled to practise in the Supreme Court of a Territory? That would be a serious omission from a bill that is designed to safeguard the rights of such persons.
– J will refer to what Senator Murphy has said and endeavour to give an example to show why this paragraph should remain in the Bill. I am informed that a Victorian who was on the roll of the Supreme Court of Victoria and on the High Court Register and who came lo practise in the Australian Capital Territory, because of the circumstances that 1 have described, could be removed from the High Court Register although he would remain on the roll of the Supreme Court of Victoria and would be able to practise in the Territory, where so far there is not a roll at all, although no doubt there will be one in the future. However, if this paragraph were taken out of the Bill and such a person came to practise in the Territory, he certainly would remain on the roll of the Supreme Court of Victoria, but he would not be on the High Court Register and therefore he would be excluded from practising in the Territory.
– That seems to me to be an extraordinary result. 1 confess that i am inclined to agree with Senator Wright’s description of this Bill as a most confusing set of provisions. lt seems to me to be a startling result that a person can be entitled to practise in the Supreme Court of the Australian Capital Territory and yet not be entitled to be on the High Court Register of Practitioners. My endeavours to put these matters together while on my feet make me doubt that proposition. If the Minister and his advisers are right, it seems to me that before this Bill leaves this chamber we should attend to this matter and see that it is corrected. Why should this anomaly exist?
– Which anomaly?
– The anomaly that a person who is entitled to practise in the Supreme Court of the Territory is not entitled to be on the High Court Register of Practitioners. The scheme of the provisions of the Judiciary Act is that if a person is entitled to practise in a State he is entitled to have his name on the Register of Practitioners kept in the High Court. Unless he is on that register he is not entitled to practise in the High Court or in any Federal court. The intention ‘behind this enactment is to put the Territories in much the same position as the States. How is it that a practitioner in a Territory can be entitled to practise in the Supreme Court of that Territory but not entitled to have his name on the Register of Practitioners although that Register is open to every practitioner in the State Supreme Courts?
– It puts a Territory court in a position inferior to that of the State Courts.
– Yes. Is that the real result of this confusion that appears in the Bill under the heading “ Part VUIa - Legal practitioners “? 1 suggest that while this matter is being clarified the Committee might move on-
– No. I would sooner have a vote on the amendment that is now before the Committee before we move on to something else.
– Then, will the Minister clarify the position?
.- I do not know whether I am able to clarify the position any more than I have done already. We wish this paragraph to remain in the Bill and not to be removed. We have not heard anything to show that great benefits would accrue from removing it. We wish it to stay in the Bill and not to be removed because, for example, somebody registered in the Supreme Court of Victoria could come from that State to practise in the Australian Capital Territory and we believe that such a person should be allowed to practise in the Territory on the basis of his Victorian registration. But, if this paragraph were taken out of the Bill, having come to the Territory, he would not be allowed to practise here on the basis of his Victorian registration because he would have lost his registration in the High Court, which is the sole qualification that Senator Murphy wishes to apply. This paragraph gives more protection to legal practitioners. It is simply and solely for that reason that we wish it to remain in the Bill.
– I am not convinced by the explanation given by the Minister. First of all, as I have indicated, proposed section 55d (1 . ) (a) can readily be amended to extend the provisions relating to rolls so as to include the Register of Practitioners. That is simple enough. The entitlement to practise in a Federal court is given under proposed section 55b. It seems to me that if a person is entitled, in accordance with paragraph (a), to practise as a barrister or solicitor in the Supreme Court of a State or is entitled, in accordance with paragraph (b), under a law of a Territory to practise in that Territory, he is entitled to practise in a Federal court and, under proposed section 55c, is entitled to be on the Register of Practitioners. Proposed section 55b (3.) provides that a person is not entitled to practise as a barrister or solicitor in a Federal court unless he is on the Register of Practitioners. The provision relating to the Register of Practitioners seems to entitle any person who is entitled to practise in a Territory to have his name on that Register. So, I suggest that what the Minister has put is not sound and that a person entitled to practise in a Territory is entitled to have his name on that Register.
Question put -
That the words proposed to be left out (Senator
Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator T. C. DrakeBrockman.)
AYES: 21
NOES: 25
Majority . . 4
AYES
NOES
Question so resolved in the negative.
– I move -
Leave out sub-section (6.) of proposed section 55d.
– Is the honorable senator withdrawing the other two amendments?
– Yes, the other two were consequential. This amendment deals with the most contentious matter in the Bill, that is, sub-section (6.) of proposed section 55d, which would enable the law of a Territory to introduce a closed shop. During the second reading debate I referred to what was said elsewhere by the Attorney-General (Mr. Snedden). He said he would not want a closed shop to be introduced. He could not speak for any other Attorney-General, but he certainly would not want this to be used to introduce a closed shop. He wanted it for the purpose of negotiations on a reciprocal basis. I do not want to repeat what I said before, but it seems to be generally accepted that if an ordinance were made in these terms that would be evil. The purpose for which the power is sought is to enable the Government to get the authorities in the States to remove closed shops in their areas.
One should not endeavour to remove an evil by threatening retaliation. In the first place, k is said that the retaliation would never be carried into effect. The States would be well aware of this, so the threat of retaliation would not be as effective at this juncture as is claimed. In the second place, we are not here forever. Another AttorneyGeneral might have another view. If an ordinance were made in these terms, it could not be said to be contrary to the policy of the Act. Those who supported that ordinance could say: “ This legislation contemplated that such an ordinance would be made. It is carrying out the policy of the legislation and carrying out the will of the Parliament. It was envisaged that an ordinance might be made in these very terms “.
When dealing with a matter so important as the administration of justice throughout the Commonwealth, we should not allow an enactment to contain such a power. If it is wrong that power to introduce an ordinance of this kind should ever be used we should not allow the Bill to contain the enabling power. This provision is quite wrong. It refers, not merely to the Australian Capital Territory but also to the other Territories. It could apply to the Northern Territory, Norfolk Island or any other Territory. A provision which would enable such a barrier to be put around a Territory is inconsistent with the notion of a Commonwealth, which should not have barriers at the Federal level. It is undeniably wrong that such an ordinance should be made, and we say it is indisputable that the power to make such an ordinance should not be contained in the Bill.
.- This matter has already been discussed and I do not wish to canvass at any length the arguments that have been put. I merely say that we believe that it is right and proper, if a State places restrictions on the right of a Territory practitioner to practise in that State, to give to the Commonwealth, subject to disallowance by Parliament of any law it makes, the capacity to place similar restrictions on the right of practitioners from that State to practise in a Territory. It has never been said that this would not be done. All that has been said is that there was never any intention of shutting the Australian Capital Territory off from all other people and of not allowing them to practise here unless they lived here.
.- It is no credit to the Government that it has left the sting of the Bill to the tail, hoping, I suppose, that we would not have the energy to get down to this paragraph and see where the nigger in the woodpile was. But we have been smelling him, and here he is. We have now debated for an hour whether or not we should include subsections (t.), (2.), (3.) and (4.) of proposed section 55d, to establish the right of State and Territory practitioners to practise in this or any other Territory. Then we come to the proposed sub-section (6.), and instead of saying, as a State school child would say in simple language: “ But an ordinance of the Territory may override the foregoing sub-sections “, it says -
Notwithstanding anything contained in the preceding provisions of this section, a law of a Territory may restrict entitlement to practise as a barrister or solicitor in the Territory to persons who have been admitted so to practise by the Supreme Court of the Territory and, where a law of a Territory contains such a restriction, sub-sections (I.) to (4.), inclusive, of this section do not apply in relation to practice in the Territory.
Why not face the position four square and simply state: “ An ordinance of the Territory may override the preceding four subsections “?
I protest against this clause, as I have protested against the manner of its submission to Parliament. I submit that no case has been made out for the inclusion of this power whereby an ordinance of the Australian Capital Territory can impose conditions which have the effect of excluding State practitioners from- practising in this Territory. I submit that for a Minister in another place to say, in effect: “ We want you to give us this capacity although it is not intended that we should use it except in terrorem against a State “, is to treat some places in this Parliament as though they were a kindergarten. I do not propose to admit my inclusion in the kindergarten. I support the amendment.
– I intervene very briefly in the debate to indicate what happens when reciprocity is sought between States and what would happen if reciprocity was sought between a State and a Territory. The Law Societies of the State or the Territory would confer. They would hammer out an approach to the problem. Assuming that they reached agreement, both sides would approach their legislatures. Let me confine what I have to say to the position of negotiation between two States. The matter would be hammered’ out at the practitioner level. If agreement was reached, it would be taken to the two legislatures concerned, and both States would pass an act of Parliament. All States deal with reciprocity, not in subsidiary legislation, but in acts of Parliament. Here it is proposed for the Parliament to delegate power to the Executive, as Senator Wright already has indicated. I think that is a wrong delegation of power.
The matter of reciprocity, or the matters connected with it, should plainly be dealt with in an act of the Parliament. It is very significant that no case has been made out by or on behalf of the Government to show that a danger exists or that the Territory will not be met generously by the States. No difficulties have been indicated that have arisen or are likely to arise between a Territory and a State in the matter of reciprocity. Surely good sense indicates that we should await the event. Let us find out whether difficulties do arise. The various local bodies will approach their governments and the governments in due course will approach their legislatures. Let us see whether any case arises.
From the examination that I have been able to make of the proposal, rather than difficulties arising with the States, I think that the reverse will happen. For instance, there is a gradually developing law school in the Australian Capital Territory. I think that at the moment there are some 30 graduates, but there are 350 undergraduates at the school. The legislatures of New South Wales and Victoria have accepted the law degree of the Australian National University as an appropriate qualification for admission to practise in both those States. That indicates a readiness on the part of the States to view favorably the position of practitioners in the Australian Capital Territory. Where is there before the Committee the slightest indication that difficulties have been encountered? I ask again: If they have not been encountered, why are we legislating to impose restrictions?
Senator Wright put the position perfectly when he said that we hold this up in terror - to terrorise the States by saying that wc will restrict them if they do not do what we in the Territories want done. The legislation will not even fulfil the purpose of terrorising the States, for the very good reason that the Attorney-General himself has indicated that an ordinance will never be used to make this a closed shop. So that when this dog barks, those at whom he barks will know he has no teeth. The Attorney-General has already completely withdrawn them. In those circumstances it seems to me that the wise thing for the Committee to do is to delete this clause from the Bill. There is no evil to be cured. If an evil does arise, let the Government bring in a bill to deal with the situation. Let us keep the matter on the level of major legislation.
.- I only want to say that in addition to the reasons which have been advanced by Senator Murphy, Senator Wright and Senator McKenna, there is another consideration that should weigh with the Committee in supporting Senator Murphy’s amendment. I think it is extremely unsound and perhaps an improper practice - I do not use that in any personal sense, but merely as indicating what the proprieties are in these matters - to have a clause which would permit something which we think is wrong in principle and beside that clause an undertaking in effect by the Attorney-General that it will never be carried out. If we can do it with this Bill, we can do it with any Bill. We could have a clause in legislation which the Government invited this chamber to pass, and when objections were raised to it - and one can conceive of this happening over a wide variety of subject matters - the answer would be: “ You need not worry; we will never enforce it.” It seems to me that the Senate would be compromising itself if it permitted itself to be led into passing into legislation a clause in respect of which, contemporaneously, the responsible Minister cays: “ As far as I am concerned, while I occupy this office nothing will be done under the legislation.”
of proposed new section 55d, attempt to withdraw the provision. I believe that if the right to practise is to be withdrawn, it should only be withdrawn on the ground that the practitioner is incompetent to look after his client. It should never be withdrawn in the so called interests of reciprocity. This, I believe, to be a very bad principle. If we say that persons who are qualified to practise under proposed sections 55a and 55b are qualified and competent persons, they should be allowed to practise and not be sacrificed on the altar of reciprocity.
.- The Government will resist this amendment for reasons which I will recapitulate briefly. In the course of doing so I will endeavour to answer some of the points raised by the Opposition. I take first Senator Cohen’s point where he claims that because the Attorney-General has said that he will not use this power to make of the Territory a completely closed shop and keep out of it anybody except those living in the Territory, therefore the Attorney-General has said that he will make no use of the power given to him by this clause at all. This only has to be stated for it to be seen how wrong and misleading it is to say that because the Attorney-General has said he will not use this power to make the Territory a completely closed shop, therefore he has said he will not make any use of it at all even to put limited restrictions on the right of State practitioners to practise in the Territory if that State has placed limiting restrictions on representatives of this Territory to practise in that State. There is no suggestion that the Attorney-General or anybody else has said that he will never use the power given for that purpose. Indeed, the reason advanced for seeking the power is so that this can be done.
– The Minister admits that this is a punitive clause.
– I am not admitting that it is a punitive clause at all.
– The Minister just did.
– I am admitting that it is a clause which places the practitioners in the Territory on the same basis as practitioners in the States are placed, and which permits the Supreme Court of the Territory, provided the Parliament and the Government give it power, to make these restrictions on the right of practise in a court of the Territory which a State now makes on the right of practitioners from another State or a Territory to practise in that State. Does the honorable senator call those powers residing in all the States punitive powers?
– Yes, I do.
– They are not punitive powers. They are normal powers which the States have to control their courts and which the Territories also should have to control their courts. If this clause is rejected then anybody whose name is on the roll of barristers or solicitors will have the right to come and practise in the Territory. Their right to do so will be completely unrestricted and unrestrictable. This will clearly not allow a Territory practitioner to be protected in the same way that a State practitioner is protected. Let us take, for example, Queensland, the State mentioned by Senator Murphy, where great restrictions are imposed on practitioners from other States. If practitioners in the Territory are to be given the same sort of protection that practitioners in other States are given, then it is essential that this clause should remain in the Bill. I see no reason why these practitioners should not be able to be given the same degree of protection as is given to people practising in other places.
I find myself quite unable to understand the argument that there is something wrong in requiring the authority to apply to practitioners from another State the same conditions as that other State applies to practitioners from the Territory. In fact, it seems to me to be extremely unfair to deny that to Territory practitioners. It seems to me to be absolutely necessary for such protection that it should be so. The authority should be exercisable, not by an arbitrary and uncontrollable action of the Executive, but by an ordinance of the Territory which is disallowable by the Federal Parliament in the same way as an ordinance or law of a State is disallowable by a State Parliament. There just happens to be no Territory parliament, otherwise this law would be disallowable by that parliament.
I come now to the suggestion from the Leader of the Opposition (Senator McKenna) that the Commonwealth does not endeavour to get into a position to bargain with the States until a situation has arisen in which the States have made it clear that the Commonwealth has to pass a law in order to bargain with them. I can say to him only that just as those States have rights under their laws now exercisable through their Supreme Courts, so the Commonwealth should have those rights now for encouraging, one would hope, the greatest measure of free exchange which is possible of attainment between the greatest number of Slates with which it is possible to attain it. But this should not be in such a way that a Territory, which finds a State that prevents a practitioner from the Territory going to that State to practise, has not the power to stop practitioners from that State coming to the Territory to practise.
– It might clarify the position a little if the Minister will answer one question. He refers to the fact that the Attorney-General has indicated that he will not permit a completely closed shop in the Territory. I think the word “ completely “ was introduced by the Minister here, and was not used by the AttorneyGeneral. But I make that comment in passing only. The question the Minister might answer for the benefit of the Committee is this: What restrictions has the Government in mind short of what the Minister has termed a completely closed shop? What particular actions are in the mind of the Government assuming it went to the limit of what it now has in mind as steps appropriate to be taken in respect of the difficulty that it sees?
– Where any such regulatory restriction exists sub-sections (1.) to (4.) do not apply to the Attorney-General.
– That is true.
– As an example I suggest to the Leader of the Opposition we take a case from each end of the argument. Queensland requires a residential qualification before it will allow a practitioner to practise in its courts. Before it will allow this to happen, the person wishing to practise must have lived in Queensland for a certain time. But it will not allow any person from another State to do that. It would seem to me -I am merely stating an example and am not expressing policy - that it would be reasonable in such circumstances for the Territory to say that it would not permit practitioners from Queensland to practise in a Territory court unless those practitioners obtained the residential qualifications in that Territory.
Turning to the other end of the argument, I take the State of Victoria in which I think there are almost completely free relations with practitioners from all other States. One would expect no restrictions whatsoever to be placed on the practice of Victorians in a Territory court. One could imagine other tests being applied apart from residential requirements by some States to a Territory practitioner and one would expect that similar tests might be applied on practitioners from those States in the Territory.
Question put -
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator T. C. DrakeBrockman.)
AYES: 25
NOES: 21
Majority . . . . 4
AYES
NOES
Question so resolved in the affirmative.
.- Will the Minister explain to me what class of persons is envisaged in paragraph (i) of proposed section 55e, which purports to give to the Crown Solicitor, in respect of any court in the Commonwealth, the right to appear for any person for whom the Attorney-General requests him to act? I know that we can expect restraint to be exercised by the Attorney-General, but in such cases he will say that he is acting within the scope of his responsibility. What power has this Parliament to give a preferred right of audience to an official appointed by the Parliament in respect of any person or body for whom the AttorneyGeneral requests him to act?
– I am informed that it would have to be a person or body having some connection with the Commonwealth. In effect, this provision is included in case there is some person or body having the requisite connection with the Commonwealth who is not specifically mentioned in paragraphs (a) to (h).
Clause 5, as amended, agreed to.
Clause 4 agreed to.
Title agreed to.
Bill reported with an amendment; report adopted.
Bill (on motion by Senator Gorton) read a third time.
page 591
Motion (by Senator Gorton) proposed -
That the Senate do now adjourn.
– On 22nd March, about five weeks ago, I asked a question upon notice. It was not a simple question, but it was not one that was difficult to answer. It could have been answered by a telephone call, but I know that is not the usual practice. The reply could have taken the form of a letter dictated by the appropriate Minister. I could have had an answer within a week. But apparently, for some particular reason, Ministers see fit to treat with contempt questions that are asked by Opposition senators. The same thing applies in another place. A perusal of the notice paper reveals that questions which were asked as far back as September last have not been answered. If the Government does not believe in the rationale of questions, why does it not adopt a rule for the resolution of questions? It is not fair or reasonable, nor does it display any recognition of the rights of the Opposition, that questions should be treated with such a measure of contempt. I bring this matter to the notice of the Senate so that in future Ministers will be seized of a sense of responsibility towards members of the Opposition. We even find that in some cases Government members have placed on the notice paper questions that have been capable of being answered within a few days but that Ministers have treated those questions with a measure of contempt. I bring this matter forward for the consideration of honorable senators.
– I have a long standing complaint. I do net know what Senator Dittmer has to complain about when he is able to supply his own answers. I am not in that position.
.- in reply - I find it difficult to supply Senator Dittmer with an answer, because he has not stated to what Minister he addressed his question or what was the subject matter of it. If he tells me those two things, I shall endeavour to expedite the giving of ah answer.
Question resolved in the affirmative.
Senate adjourned at 10.30 p.m.
Cite as: Australia, Senate, Debates, 26 April 1966, viewed 22 October 2017, <http://historichansard.net/senate/1966/19660426_senate_25_s31/>.