26th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 11 ‘a.m., and read prayers.
– I direct my question to the Leader of the Government in the Senate or to the Minister representing the Minister for National Development. I ask: Has the attention of either Minister been drawn to a statement made last Tuesday by the Premier of South Australia that the Chowilla Dam project had bogged down predominantly for political reasons? As this point of view runs counter to statements made here and made by the Minister for National Development in another place, does either honourable gentleman agree with that proposition? Has the Premier of South Australia put to the Commonwealth Government reasons for his statement?
– I regret to say that I have not seen the statement referred to by the honourable senator. Before governments commit themselves to large scale expenditure on development of the water resources of Australia they have to be sure that the money will be spent in the right direction. I will examine the statement by the Premier of South Australia and I will also obtain for the honourable senator a reply from the Minister for National Development.
– I ask the Minister who represents the Minister for Health whether there is any truth or substance in the claim by waterside workers that a health hazard is presented to the Australian community by rats on the ship ‘Jeparit’. Is it a genuine complaint, or is it made because Jeparit’ is used to supply our troops in Vietnam?
– I read this morning the comment referred to by the honourable senator. I understand that discussions in detail were held by representatives of the Australian and. United States armed forces covering public health and quarantine requirements. The Government is satisfied that proper safeguards are being provided to prevent the introduction from Vietnam of animal, plant and human diseases. Such safeguards include, of course, steps to prevent the introduction of bubonic plague.
– Has the Minister who represents the Minister for the Interior read in today’s Press a report of a statement by the Minister for National Development about two aquifers in the Northern Territory? Will the Minister inform me how the areas in which the aquifers exist are held? Are they owned by the Government, owned privately on a freehold basis, or held under lease?
– I cannot say how those areas are held. I have heard of large aquifers in the Northern Territory. I presume the areas involved are leasehold properties held by station owners over which mineral rights could already be held by mining companies. I will ask the Minister for National Development for a detailed answer and will supply it directly to the honourable senator.
– Can the Minister representing the Acting Minister for Trade and Industry indicate what effect New Zealand devaluation has had on the New Zealand-Australia Free Trade Agreement? Is it correct to say that it has resulted in a reduction of 20% in the protective tariff on Australian frozen peas and beans and that already these imports can be sold on the Australian market at a cheaper rate than that of the Australian product? If that is correct, will it not seriously affect the agreed phasing out period on this protective tariff, thereby nullifying that part of the Agreement? If these contentions are correct, is it proposed to have consultations with the New Zealand Government with a view to readjustment of the Agreement?
– It is true that the New Zealand-Australia Free Trade Agreement, which we all recall was debated in this place with some vigour, provides for consulation. I have no doubt that if a situation arose that justified consultation in terms of the Agreement that consultation would readily be held. I do not think the question of the impact of devaluation on the Agreement lends itself to the giving of an answer at question time. I therefore ask the honourable senator to put his question on the notice paper. I would want to obtain a considered reply not only from the Acting Minister for Trade and Industry but also from the Treasurer.
– I ask the Minister representing the Minister for Defence a question. How much has Australia paid up to date towards the FI IIA aeroplanes? When is the next payment due and how much will it be?
– That is not a question on which I would have the necessary information available to me. I feel bound to point out to the honourable senator and to the Senate that the Minister for Defence will be making a statement on defence tonight.
– We will not be here tonight.
– It is true that the honourable senator will not be here and that we will not be sitting tonight. But, according to the normal practice of the Senate, when we reassemble on Tuesday next I will be making the statement made by the Minister for Defence in another place. If, subsequent to the making of that statement, Senator Turnbull still seeks information, I will endeavour to obtain it for him.
– I preface my question, which is directed to the Minister representing the Minister for Shipping and Transport, by saying that I realise that the Australian Government must be ever ready to come to the assistance of and to cooperate with our sister nation, New Zealand, particularly in time of tragedy. Will the Minister urge upon his colleague, the Minister for Shipping and Transport, that the most careful consideration be given to the interests and welfare of Tasmania if and when the Australian National Line ship Empress of Australia’ is suggested as a temporary replacement for the ‘Wahine’, which was wrecked in tragic circumstances in Wellington Harbour recently?
– The Government is always conscious of the need for adequate shipping between Tasmania and the mainland, both for passengers and goods. The Minister for Shipping and Transport has acknowledged the need for such shipping by supplying extra vessels for that trade. While realising the need to come to the assistance of our New Zealand friends, the Minister has to make a decision on whether Australia will help. I will place before him the honourable senator’s request that the best available service be given to Tasmania if a ship has to go from Australia to help our New Zealand friends.
– I ask the Minister representing the Treasurer whether the Government has received any request from the Administration or the House of Assembly of Papua and New Guinea for a special grant to assist in the provision of sporting and other facilities for the holding of the South Pacific Games at Port Moresby in 1969. If such a request has been received, what amount, if any, has been granted?
– It would be my understanding that any such request as this would be made, not to the Treasurer, but to the Department of Territories. I know nothing of any request but I shall take up the matter and obtain what information I can for the honourable senator.
– I address a question to the Minister representing the AttorneyGeneral. What is the present position regarding the staffing of the parliamentary drafting section of the Attorney-General’s Department? Is the Department below establishment in draftsmen? If so, what is being done to correct this position?
– I would remind the honourable senator that I gave an answer to my colleague, Senator Laught, on this very question yesterday. For the honourable senator’s information, the position is that there is an establishment of 22. There were then 5 vacancies. I believe there are now 6. The matter is under consideration. I undertook to consider Senator Laught’s most interesting suggestion that we enter into a conference with the AttorneyGeneral with a view to trying to upgrade the status of the drafting section of the Department so as to ensure a continuance of competent personnel for that section.
– The Minister representing the Treasurer must be aware of the growing trend in Australia towards allowing overseas companies to borrow on our loan market and yet preventing Australians having any equity in these companies. Does the Minister think this is a correct procedure? Would the Minister give the Senate an opportunity of debating this proposition without recourse to an urgency motion?
– I do not accept the bald statement as presented by the honourable senator. I would remind him that we have currently before the Senate certain taxation legislation. As I recall the position, Senator McClelland has the adjournment of that debate. As soon as question time and the other formalities have concluded, we shall be continuing with that debate. Although discussion on this particular aspect of financial arrangements may be a little bit wide of the ambit of the particular Bills under consideration, by common consent, and with the permission of the President, discussion of a related subject such as this is allowed during a second reading debate. If the honourable senator feels constrained to make a stirring speech to honourable senators, I am sure we will all be delighted to listen to him.
– Is the Minister representing the Minister for National Development aware that the Chowilla Dam project was ratified by an agreement between South Australia, Victoria, New South Wales and the Commonwealth after intensive and extensive investigation of all aspects of the project? How can the Minister reconcile this fact with his reply to a question asked by Senator Bishop this morning in which he stated that before major projects could be proceeded with, agreement must be reached by the parties concerned?
– I am aware of the great interest being taken by South Australians in the construction of the Chowilla
Dam, but I must inform the Senate that the River Murray Commission has been asked to examine this project. It is making that examination now. Some months ago the Commission advised the various governments concerned that, because of the increase in cost from a little in excess of $28m to something in the vicinity of $72m it would want to have a further look at the scheme to see whether a better site could be found. The Commission is looking for a site at present. I think it should be made clear to everyone concerned that in the original proposal the Commonwealth Government was to find one-quarter of the necessary money in addition to lending New South Wales one-quarter of the amount, the remainder of the cost being met equally by Victoria- and South Australia. Therefore the States concerned, as well as the Commonwealth, had a definite commitment.
– My question is also addressed to the Minister representing the Minister for National Development. Is it not a fact that the Commonwealth Government informed the Parliament and the South Australian Government that the project would not proceed, not because of the cost but because of salinity and other difficulties which it claimed existed?
– I am sorry that in my reply to the previous question I did not mention salinity which was one of the reasons for not proceeding with the Chowilla project. Another reason was the large increase in cost.
– I direct a question to the Minister for Customs and Excise. Has the Government given proper and serious consideration to the statement by the Tariff Board that in its next report it intends to list protected Australian industries in categories showing those which receive high, medium and low protection? Does the Government consider that such an action possibly could damage certain important Australian industries?
– I know the keen interest that the honourable senator has taken in this matter. If he will put his question on the notice paper I will provide an answer next week.
– I resubmit a question which the Leader of the Govern* ment suggested yesterday that I should ask today. I ask the Leader of the Government whether, in view of reports of renewed famine in India, the Government will consider making further gifts of foodstuffs to that country and provide assistance in their transport, particularly gifts of milk either from Government sources or through philanthropic agencies such as the Milk for India organisation which has been functioning successfully in Melbourne.
– Yesterday when the honourable senator asked this question I gave a brief reply and suggested that I might be in a better position today to give more information. I can now tell the Senate that Australian aid to India has exceeded $65 m in value since 1950 of which more than $32m has been in the form of food aid to meet emergency situations. Some $9m worth of food aid has been supplied in the current financial year. The food supply situation in India has improved remarkably during the past year and crop prospects are reported to be very good. There is no outstanding request from the Government of India for emergency food aid from Australia. The question of Australia’s programme of international assistance in the next financial year will be considered when the Budget is being prepared.
The Government welcomes the activities of the various voluntary groups which are providing food aid and other aid to India. It believes, however, that as a rule such organisations should make their own arrangements for the payment of freight on gift consignments rather than rely on the Government’s aid funds which are heavily committed to items specifically required and requested by the Indian authorities. I understand that the Aid for India campaign has arranged to transport its gifts in Indian ships at no cost to the campaign. The Minister for External Affairs in another place made a statement on Australian Government assistance in connection with private relief activities and that is reported in Hansard of 14th March 1967.
– My question is addressed to the Minister for Supply. Have any moon watch stations referred to in the Minister’s Press statement of 24th April as awaiting the re-entry to the earth’s atmosphere of the United States satellite Echo I reported any sightings, or are we still to expect either the whimper or the bang to which the Minister referred? Could any damage be done to aircraft in flight or to people or property on the ground if such a satellite did not burn up when entering the earth’s atmosphere?
– The question is technical to a degree and I would prefer to give a considered reply to the honourable senator. If I may say so, the degree of risk is absolutely minimal - almost microscopic. However, as the honourable senator has asked a technical question, I think he is entitled to a completely official and technical answer and I will obtain the information for him.
– I direct a question to the Minister representing the Minister for Shipping and Transport and it follows upon an answer which he gave to my colleague Senator Marriott on the subject of interstate shipping. I draw the Minister’s attention to the fact that I asked a question on this subject yesterday and it is listed as Question No. 239 on the notice paper. I ask: In view of the fact that the Minister was able to give an answer to Senator Marriott on this very subject today, why has my question on notice not been listed for answer today? Is the answer to Senator Marriott’s question to be taken as an answer to my question?
– The honourable senator should realise that the question that he asked yesterday was seeking definite information. I will read one of the sections of it. He asked: ‘What are the details of the terms and conditions of this offer?’ I did not know the terms and conditions and Senator Marriott did not ask that question today.
– I asked whether it was a fact, as alleged in the Tasmanian Press-
– And there were also two other sections of the question. I am not able to answer all of the honourable senator’s question on notice at this stage.
Although it dealt with a similar subject to the question asked by Senator Marriott today, Senator Devitt sought details that were not available to me and I could not give them to him at the time. However, I was able to answer the question that Senator Marriott asked.
– My question is directed to the Minister representing the Minister for Health. I ask whether, because of the terrible consequences that would follow upon the introduction of the bubonic plague into Australia, the Department of Health is satisfied that there were no rats on the ‘Jeparit’.
– The Master of the ship has reported that he has not seen any rats or mice, or any suspicious signs of them, on board his vessel. An officer of the Department of Health has inspected the ship and his report corresponds with the Master’s report.
– I direct a question to the Minister for Works either in his capacity as Minister representing the Minister for External Territories or as Minister representing the Minister for Education and Science. Has he seen a Press report today of a statement .by the Staff Association of the University of Papua and New Guinea expressing concern at the small number of under-graduates, present and projected, and noting with considerable alarm - to use its expression - the level of funds proposed by the Commonwealth Government for that University in 1968-69, which is apparently $lm below the amount requested by the University? The report, it would appear, also states that thirty-five suitably qualified applicants were not accepted for admission to the University this year through lack of finance. I ask the Minister: Will the Government give urgent consideration to the serious state of affairs alleged in the report and take proper steps to ensure that this very important educational institution is given every encouragement to discharge its responsibilities to the people of the Territory?
– I informed the Senate some 3 weeks ago that, despite all statements to another effect, the progress being made by the University of Papua and New Guinea is excellent and the establishment of several faculties is proceeding with increasing service to the student personnel. Any criticism as to the amount of money made available is quite ill founded when considered in relation to the demands of other educational establishments in the Territory. I have not seen the Press report to which specific reference has been made by the honourable senator. I shall direct my attention to it and if any further information is required in answer to the question I shall supply it at a later date.
– I direct a question to the Minister for Supply. I welcome the administrative arrangement which has caused the passing of control of the Antarctic Division of the Department of External Affairs to the Minister. Will he consider basing the headquarters of the scientific section of Antarctic endeavour in South Australia? I give as some reason for this request, firstly, the high standard of oceanography research at present being carried out at Flinders University in South Australia; secondly, the presence of high level scientific laboratories of the Department of Supply at Salisbury in South Australia; and, thirdly, the siting of the Australian mineral research laboratories in South Australia.
– I would want to have some consideration of the submission of the honourable senator in relation to the establishment of the headquarters of the Antarctic Division in South Australia. He states a case based on the special grouping of technological and scientific people of the Department of Supply in South Australia. There would, of course, be other considerations that would have to be taken into account. Nevertheless, the honourable senator has stated a case and I shall very properly have that case examined.
– Has the Minister representing the Minister for Health any knowledge of whether a waterside worker employed on discharging cargo from the Jeparit’ was admitted to hospital with an exotic disease which had an Asian origin?
– I do not know anything of this. My information is that all members of the crew are- well but that a member of the crew was taken to hospital several trips ago and is now in hospital suffering from a liver complaint which is in no way related to rats or mice. I do not know of any other person affected by sickness in this connection.
– I direct a question to the Minister representing the Minister for Immigration. Has the Government decided that its programme for the construction of multi-storey flats to house migrants is in the best national interest? Will the Government give consideration to reviewing the current programme or future programmes of construction so that the benefit of building blocks of home units in country towns or cities will be readily seen in ways which may lead to a more acceptable distribution of population?
– I think the honourable senator is referring to the new plan for housing transitory migrants in small blocks of flats. This, of course, is just in its experimental stage. The first of these flats are mainly in capital cities. I know that consideration will be given to this type of accommodation as the need arises. As the Minister for Immigration has said on previous occasions, the Department has endeavoured to assist migrants going to country centres by arranging accommodation with people living in those areas. The Department is doing an excellent job in encouraging migrants to go to country areas. As the honourable senator is interested in the matter, he may like to know that the first block in New South Wales is finished and the migrants are in residence. The units or flats are very pleasant ones. It is obvious that the migrants in those units are very pleased to be there and are finding the accommodation most acceptable. I believe that such accommodation is assisting migrants to settle happily in a new country.
– Once again I ask the Minister representing the Minister for Defence whether any progress has been made in the study of the feasibility report with regard to the establishment of a naval base on the west coast of Australia. I understand that the report was before the Government some time ago. Will the report be made available before the end of June?
– I do not want to give an answer to the honourable senator’s question until I ascertain the facts. She has asked about the study that was made. In all the circumstances it would be appropriate if the question were put on notice. I will take the matter up and see whether I can give a reply some time next week.
– My question is directed to the Minister representing the Minister for Primary Industry. In view of the great interest concerning the possibility of the introduction of foot and mouth disease into this country and the increased risk of introduction due to modern methods of transport, will the Minister arrange to have one or two of the excellent short films, which are available from the Commonwealth Film Unit, on this terrible animal disease presented at the weekly film showings to members of the Parliament?
– I will have pleasure in conveying the suggestion made by Senator Lawrie to the Minister concerned.
– Earlier Senator Marriott asked me a question about the satellite Echo 1. I believe that the honourable senator’s question was prompted by a Press statement that I released recently. I think that in the circumstances I should add some information about the satellite and at the same time give an answer in part to the question that the honourable senator posed. It should be remembered that Echo 1 has been in orbit since 1960. Its closest approach to the earth has varied between 550 and 900 miles. It is expected that on re-entry the satellite will disintegrate. The whole purpose of the exercise conducted by watching teams all over the world including those in Australia, is to discover what happens to the satellite. It is believed now that nothing will happen before perhaps the end of May. The probabilities are that on re-entry it will completely disintegrate with a bang or a whimper, asI said in my Press statement. Our scientists would have to use ail their science and knowledge of mathematics to calculate the risks involved if and when the satellite re-enters the earth’s atmosphere, but it is believed that the risks are minimal.
– Will the Minister representing the Minister for Labour and National Service make an early statement on the serious problems that are now affecting the new system of permanent employment for waterside workers? I ask this question in view of the fact that there is grave dissatisfaction with the system in a number of ports, notably Melbourne, where allegations are being made that the system is being used to favour some waterside workers at the expense of others and also that waterside workers are working longer hours and receiving less pay than they did under the old system. May I suggest that such a statement is very necessary because of the possibility of serious industrial trouble?
– I have listened with interest to the question and the various suggestions it contains. My own approach is that the subduing of industrial trouble is not assisted greatly by a parliamentary statement. However, I realise that if such a statement can be used to give a responsible assessment of these matters to which the honourable senator refers - the suggestion of favouritism to some waterside workers and longer working hours for others - it may in this instance assist. I shall convey his suggestion to the responsible Minister for a decision on the matter.
(Question No. 1 19)
asked the Minister representing the Postmaster-General, upon notice:
SenatorDame ANNABELLE RANKIN - The Postmaster-General has supplied the following reply:
(Question No. 144)
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has supplied the following answers:
(Question No. 165)
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has supplied the following answers:
(Question No. 192)
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has supplied the following answers:
Motion (by Senator Scott) agreed to:
That leave be given to introduce a Bill for an Act to amend the Customs Act 1901-1967 for the purpose of establishing a Collectorate of Customs in the Northern Territory, and for purposes related thereto.
Bill presented, and read a first time.
Standing Orders suspended.
– I move:
That the Bill be now read a second time.
The purpose of this Bill is to create a Collectorate of Customs in the Northern Territory and to amend certain provisions which relate to the customs administrative arrangements of the various States and Territories. Section 8 of the Customs Act provides that there shall be a Collector of Customs in each State. This section also provides that a portion of a State or Territory may be attached to another State for the purpose of the Customs Act. Under this provision, customs administration in the Northern Territory has been divided between the Collectors for Queensland and South Australia. Section 8a of the Customs Act provides that the principal officer of customs in the Northern Territory may be vested with such powers and functions of a State Collector as may bc specified by the Comptroller. In recent years developments in the Northern Territory have led to significant increases in customs responsibilities. The volume of customs business in the Northern Territory is now such as to have established the need for a Collectorate of Customs in that area. Clause 2 of the Bill amends Section 8 to make provision for a Collector of Customs for the Northern Territory. The creation of a Collectorate will remove the need for specific powers to be vested in the principal officer of customs in the Territory and hence this clause also repeals Section 8a. Clause 2 inserts a new Section 8a which provides that part of a State or Territory may be attached, for purposes of the Customs Act, to another State or Territory. Hitherto the Customs Act authorised attachment only to another State. This kind of provision is necessary if the Department of Customs and Excise is to make the most efficient use of its staffing resources in the supervision of import and export activities in remote areas such as the north west of Australia. Ports in these areas may be geographically far removed from the main commercial centres of the States of which they form part and may therefore be more conveniently administered for customs purposes from another State or Territory. Clause 3 of the Bill introduces consequential amendments to other sections of the Customs Act which refer to powers or functions of Collectors of Customs. In addition to this Bill T intend immediately to ask for leave to introduce five associated Bills relating to other legislation which is administered by the Department of Customs and Excise and which requires similar amendment because of the decision to establish a Collectorate in the Northern Territory. These associated Bills are: the. Excise Bill 1968, the Beer Excise Bill 1968. the Coal Excise Bill 1968. the Canned Fruit Excise Bill 1968 and the Distillation Bill 1968. Honourable senators,
I believe, will welcome this Bill as a practical recognition of the growing status of the Northern Territory. 1 commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Scott) agreed to:
That leave be given to introduce a Bil! for an Act to amend the Excise Act 1901-1966 in relation to the establishment of a Collectorate of Customs in the Northern Territory.
Bill presented, and read a first time.
Standing Orders suspended.
– I move:
This Bill is the first of the associated Bills mentioned in my speech on the Customs Bill 1968. lt is a Bill to amend the Excise Act 1901-1.966 to the extent necessary as a result of the Government’s decision to establish a Collectorate of Customs in the Northern Territory. It includes a provision, similar to that contained in the Customs Bill, to enable part of a State or Territory to be attached to an adjoining State or Territory for Excise administrative purposes. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Scott) agreed to:
Thai leave bc given to introduce a Bill for an Act to amend ibc Distillation Act 1901-1966 in relation to the establishment of a Collectorate of - Customs in the Northern Territory.
Bill presented, and read a first time.
Standing Orders suspended.
Senator SCOTT (Western AustraliaMinister for Customs and Excise) l 1. 58] - I move:
This is the second of the associated Bills mentioned in my speech on the Customs
Bill 1968. It is a Bill to amend the Distillation Act 1901-1966 to the extent necessary as a result of the Government’s decision to establish a Collectorate of Customs in the Northern Territory. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Scott) agreed to:
That leave be given lo introduce a Bill for an Act to amend the Canned Fruit Excise Act 1963- 1966 in relation to the establishment of a Collectorate of Customs in the Northern Territory.
Bill presented, and read a first time.
Standing Orders suspended.
– J move:
That the Bill be now read a second time.
This is the third of the associated Bills mentioned in my speech on the Customs Bill 1968. It is a Bill to amend the Canned Fruit Excise Act 1963-1966 to the extent necessary as a result of the Government’s decision to establish a Collectorate of Customs in the Northern Territory. 1 comment the Bill to honourable senators.
Debate (on motion by Senator 0’Byrne) adjourned.
Motion (by Senator Scott) agreed to:
That leave be given to introduce a Bill for an Act to amend the Coal Excise Act 1949-1966 in relation to the establishment of a Collectorate of Customs in the Northern Territory.
Bill presented, and read a first time.
Standing Orders suspended.
– 1 move:
That the Bill be now read a second time.
This is the fourth of the associated Bills mentioned in my speech on the Customs Bill 1968. It is a Bill to amend the Coal Excise Act 1949-1966 to the extent necessary as a result of the Government’s decision to establish a Collectorate of Customs in the Northern Territory. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Scott) agreed to:
That leave be given to introduce a Bill for an Act to amend the Beer Excise Act 1901-1966 in relation to the establishment of a Collectorate of Customs in the Northern Territory.
Bill presented, and read a first time.
Standing Orders suspended.
– I move:
This is the fifth of the associated Bills mentioned in my speech on the Customs Bill 1968. It is a Bill to amend the Beer Excise Act 1901-1966 to the extent necessary as a result of the Government’s decision to establish a Collectorate of Customs in the Northern Territory. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
The DEPUTY PRESIDENT (Senator Drake-Brockman) - The President has received a letter from Senator Cotton requesting his discharge from the Joint Committee on the Australian Capital Territory.
Motion (by Senator Anderson) - by leave - agreed to:
That Senator Cotton be discharged from attendance on (he Joint Committee on the Australian Capital Territory.
The DEPUTY PRESIDENT- The President has received a letter from the Leader of the Government in the Senate appointing Senator Marriott to fill the vacancy on the Joint Committee on the Australian Capital Territory.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wright) read a first time.
– 1 move:
That the Bill be now read a second time.
This bill seeks authority for the Government to continue, during the next 3 financial years, grants for the construction and equipping of science laboratories. The scheme was introduced in 1964-65 and has been continued in subsequent financial years up to 30th June 1968. These grants for the construction and equipping of science laboratories represent one part of what can be regarded as an overall Government programme to up-grade scientific skills in Australia.
The Government recognises that if Australia is to develop as we wish and if we are to make the greatest use of our own resources we need a greater number of welltrained scientists and technologists. If we are to maintain and improve our position in the modern scientific age it is clear that the Government must give attention to the standards of training. The Government has therefore attempted, in co-operation with the Slates, to upgrade the level of scientific training in the schools and universities and in post-graduate research. Scientific training in the universities has greatly benefited from increasing Commonwealth support for universities.
The universities use a proportion of the recurrent funds generally available to them for research but, wishing to give particular attention to the needs for research, the Commonwealth has been making increasing funds available specifically for this purpose. It is indebted to the work of the Australian Research Grants Committee which recommends the allocation of these funds, which have been increased from $4m in the first triennium of the Committee’s operation to $9m in the second and current triennium. While not limited to universities, the greater part of these funds go to research in universities.
It was clear that students entering universities would not be able to make the maximum use of the increased facilities being provided unless adequate facilities were available for their training at school. Such facilities are expensive and in many cases have been beyond the resources of the authorities previously responsible for providing them. Four years ago the Commonwealth therefore began its support for the construction and equipping of science laboratories.
Under existing legislation grants for science facilities totalling $42,291,200 will have been provided between 1st July 1964 and 30th June 1968. A total of $28,951,200 will have been provided to Government schools, and payments totalling $27, 114,000 have already been made. These grants have been used to build laboratories at 383 Government high schools throughout Australia as selected by the States. Details of these are given in the lists that I have circulated. In addition every State Government school in Australia which teaches secondary science has received some additional science teaching apparatus as a result of the Commonwealth grants.
The balance of $13,340,000 will have been provided over the 4 year period to independent schools in the States. The lists which I have circulated give details of the independent schools which have been assisted under the scheme and the amount granted to each school in each year of the scheme. Of the 750 applicant independent secondary schools, 508 have received some assistance under the scheme.
The bill proposes that a further amount of $37,721,400 be available over the next 3 years. Of this amount, $21,713,400 is for assistance for science facilities in government schools and $16.008m for independent schools. The amount for independent schools will continue to be, as it was in 1967-68, at double the rate it was in earlier years of the scheme. The money once again will be allocated in specific amounts to groups of schools, but the opportunity has been taken to revise the allocation on the basis of more up-to-date population and secondary enrolment figures. On the basis of the population figures obtained from the 1966 census and statistics for secondary enrolments in 1966, the latest available, the annual distribution will be as shown in the following table, which, with the concurrence of honourable senators, I incorporate in Hansard.
In relation to independent schools it has been decided that part of the total amount available will be used, in the first place, to meet the balance of the reasonable cost of science buildings already assisted and then to make grants to schools which have built science laboratories to plans approved by the Minister on the advice of the Standards Committee but for which they have not received any assistance. The other part will be available for allocation on the recommendations of State advisory committees for completely new projects at independent secondary schools.
As a result of the grants now proposed, by 1971 substantial inroads will be made into the backlog of needs for science facilities in both Government and independent schools. On present information, it appears that a further triennium with reduced funds would be sufficient to complete the exercise with respect to existing schools.
I am pleased to report that the Commonwealth and States have co-operated fully in improving the science facilities available to students attending government schools and that the scheme has been most sucessful in providing such facilities. I should like to pay tribute to the members of the Standards Committee who, notwithstanding their other duties as senior members of the staffs of independent schools and universities, have visited very applicant independent school to assess its needs for science facilities. They have made themselves available, too, for numerous discussions with school principals, school boards and their architects so that the plans developed to meet needs will be of the highest standard. Honourable senators will appreciate the amount of travelling involved in this achievement.
I wish to thank the committees convened, at the request of the previous Minister for Education and Science, by the senior Roman Catholic and senior Anglican Prelate in each Stale to recommend priorities for Roman Catholic schools and schools other than Roman Catholic respectively. The work of these committees has been most’ valuable in ensuring that local knowledge is brought to bear in the determination of priorities amongst needs. These committees have been provided with information about the current needs of applicant schools so that their recommendations for the proposed extension of the scheme may be available as soon as possible. I commend the bill to the Senate.
Debate (on motion by SenatorTangney) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wright) read a first time.
– I move:
That the Bill be now read a secondtime.
The Bill does three things. First, occasions arise where men are anxious to continue their full time service for short periods beyond the two years for which they are liable to serve and this is in the interests of the Army. As the legislation now stands, such men would not be entitled to reestablishment benefits. It is proposed to correct this position. However, since the re-establishment benefits were formulated having in mind interruption of a civil career - in general men are entitled to return to their former employment and the employer is required to permit them to resume - clearly some time limit must be placed on the period of additional voluntary service. Three months is proposed.
Secondly, the reinstatement in civil employment provisions of the Defence (Reestablishment) Act do not apply to casual workers engaged under recognised arrangements as full time workers in an industry, such as casual waterside workers and allied waterfront workers. The Bill remedies this. Thirdly, section 15 of the Act provides that where an employer is convicted of an offence in respect of the civil employment provisions, the court may order the payment of such compensation as it thinks reasonable. The court may also order that the fine imposed on the employer be paid to the serviceman. The Government’s view is that any fines imposed should be paid to the Crown and the legislation is being amended accordingly. Provision is also being included to facilitate the enforcement of an order for compensation. I commend the Bill to the Senate.
Bill (on motion by Senator O’Byrne) adjourned.
Debate resumed from 1 May (vide page 745), on motion by Senator Anderson:
That the Bill be now read a second time.
– The purposes of the Income Tax (International Agreements) Bill and the Income Tax Assessment Bill, which we are now considering together, are set out in the second reading speeches of the Minister for Supply (Senator Anderson) and in a detailed explanatory memorandum of some sixty-seven pages that has been circulated by the Treasurer (Mr McMahon). The general purposes of the legislation, however, are to renew the double taxation agreement with the United Kingdom which was given the force of law in Australia in June 1947, some 21 years ago, and to clarify the definition of the term ‘royalty’ for taxation purposes. Apart from the United Kingdom
Australia already has a double taxation agreement with the United States of America which was ratified on 14th December 1953, one with Canada which commenced in May 1958 and one with New Zealand which commenced in June 1960.
These Bills give us an opportunity, which was availed of during the debate last night, to examine some of the general overall aspects of overseas investment in Australia and the future of this nation if we are to continue to rely, as we have been relying in recent years and particularly in the last decade of conservative administration in this country, on balancing our books with overseas capital. Firstly, it should be made clear for the record that there is a vast difference of opinion between Government thinking on this aspect of policy and the philosophy of the Labor movement. The Government obviously has encouraged a heavy flow of capital into Australia willy nilly for any purpose and for any place. It does not care about the whys or wherefores and in no way has it placed any conditions, limitations or restrictions upon the entry of this type of capital or the purpose for which it is used.
As we all know, this policy has resulted, in a great number of cases, in the sale to overseas interests of many existing and successfully established Australian industries and businesses with no regard at all being given to the future of this great nation and those who will inherit what we of today will leave behind us. The Labor movement quite definitely says that the Australian Government should restrict - for those who might disagree with Labor Party policy I emphasise that the word is ‘restrict’ and not ‘stop’ - the flow of overseas capital into Australia for the creation of new industries and not the absorption of existing industries. It is this difference between the policy of the Government and that of the Australian Labor Party that I particularly wish to highlight.
Let me summarise shortly what was said by the Vernon Committee of Economic Inquiry which, as we all know, was established by the Government in or about 1963 to inquire into and report upon the general state of the Australian economy. The Committee deal at considerable length with the overall question of overseas investment in Australia. At page 979 of its report under the heading ‘Trends in Overseas Investment since 1948-49’ the Committee had this to say:
Total overseas investment over this 15-year period from 1948-49 to 1962-63 amounted , to £l,872m. This figure is an underestimate to the extent to which the balancing item, as discussed in paragraph J.5, is attributable to overseas investment. The balancing item amounted to £406m over the period.
Of course, when the report was made we were dealing with the old form of Australian currency.
The report continues:
The balancing item amounted to £406m over the period. Inflow fluctuated widely from year to year, and it is not therefore useful to calculate a precise trend rate. The general trend was, bowever, markedly upwards, and inflow failed to rise only in 3 years- 1952-53, 1956-57 and 1961-62.
Those 3 years mentioned by the Vernon Committee were the years in which horror Budgets were introduced by the Government. The report goes on:
This upward movement is not difficult to explain. Australia had a rapid rate of population increase and a growing economy over the period; it was politically stable; incomes per head of population were high and rising; the industrial structure was diversified and equipped with tariff protection. The economic environment was, therefore, attractive to overseas investment.
The Government attitude towards overseas investment was also one of encouragement. Remittances of profits and dividends, although subject to exchange-control approval, were unrestricted and a liberal policy towards repatriation of capital was adopted. There were double-tax agreements with the countries providing the bulk of overseas investment, the United Kingdom and the United Slates of America, as well as with Canada and New Zealand.
Government policy in respect of overseas investment is set out in ‘Overseas Investment in Australia’, issued by the Commonwealth Treasury in September 1962.
In recent weeks members of the Parliament have been provided with a later publication entitled ‘Public Overseas Investment in Australia’. The Vernon Committee, in its report, went on to say:
Overseas-owned companies, once established in Australia, are treated to all intents and purposes in the same way as locally-owned companies. The Government has, however, expressed a preference for overseas investment ‘of a kind likely to help in the balanced development of Australia’s resources’ and which ‘brings with it the skill and “know-how” needed for the successful fulfilment of the project in which the investment is made’, lt has also indicated that ‘it is considered desirable that there be Australian participation in ownership and management’.
This is the salient feature of the Committee’s report:
However, no rules have been laid down.
There, in very concise and simple form, the Vernon Committee has set out the altitude of the Government to overseas investment. The Government has expressed an opinion that it would like capital, coming from overseas into Australia, to b; of a kind likely to help in the balanced development of Australia, but the Government has not indicated this by way of laying down any specific rule on the subject. The Government has expressed a desire that overseas capital bring with it the skill and knowhow needed for the successful fulfilment of the project in which the investment is made. Again, as the Vernon Committee has emphasised, whilst the Government has expressed this to be one of its desires, it has laid down no rules. The Government has also considered it desirable that there be Australian participation in ownership and management. We in the Australian Labor Party movement ask: If other countries can lay down specific rules for their own participation in ownership and management of the overseas capital and investments that come into their country, why cannot such rules be laid down in Australia? Because of the policy that has been pursued by the Government on this vital issue, what have been the consequences?
As recently as 1 965, Mr Wilson, a director of Australian Paper Manufacturers Ltd, one of Australia’s largest manufacturing organisations, prepared a table showing the percentage of foreign control of equity in Australian industry at that time. The figures are very revealing. The table shows the following percentages of foreign control in the industries mentioned:
One can see that in the chemical, mineral, soap, and food processing industries the control is exercised largely by people who do not reside within Australia. The gravamen of our complaint simply is that Australians have no say in such industries. Although the Government may like certain things to be done, it has not laid down any rules for Australia’s participation in this kind of investment. As the Deputy Prime Minister and Minister for Trade and Industry (Mr McEwen) said in July 1963, if a country becomes dependent for its growth upon the decisions of overseas people to invest or to refrain from investing, the development of that country is no longer completely in its own hands.
In our opinion the situation has deteriorated considerably since that time. Today total investment in Australia from sources in the United Kingdom and the United States of America is, I understand, around the $5,000m mark, lt has been growing and growing until today foreign investment represents, I am told, about 30% of the investment in Australian industries. Tn particular industries, as evidenced by Mr Wilson whom 1 mentioned earlier, foreign investment accounts for almost 100%. Only this morning in the ‘Sydney Morning Herald’ and in the ‘Australian’ we read that in the 3 months from January to March last the estimated overseas investment in Australia amounted to $3 14m. When these facts are coupled with the fact that our own exporters have to rely completely on overseas shipping interests to carry our goods to the export markets in order to earn income for the nation and that the overseas shipping conference lines put up their freights whenever and however they like, it can be seen immediately that our nation is being held to ransom and that it can become the economic captive of overseas interests far and wide.
T suggest that the great need is for the Government to preserve Australian ownership and control of our great national assets. Because the Government merely wants the money in order to balance its books, it does not seem to care a tinker’s cuss about the purpose to which this type of investment is to be applied. One sees how fallacious is this policy when overseas companies come to Australia, use Australian money by way of bank overdraft facilities or debenture loans, for their expansion and then remit a great portion of their dividends overseas.
– General MotorsHolden’s Pty Ltd is one of them.
– There are many besides General Motors. I intend, a little later, to cite a specific industry and to give details of a serious matter that borders on scandal. Certainly, the situation should not be viewed lightly. Australians are rapidly losing control of their own destinies. If this Government is not careful about the policy it is pursuing there will be a great rush of people from overseas who, holding the purse strings, will control the destiny of this great nation. Industry after industry, large and small, is being taken over by oversea interests. To give some idea of the magnitude of this problem, I shall quote from the March issue of ‘Rydges’, a journal that is reputed to have the largest circulation in Australia of any business and financial magazine. An article on page 9 headed ‘The Battle for the Airports’ says:
Tenders have just closed for the car rental concession on 68 Australian airports and the three leading car rental organisations are all holding their breath waiting for the Department of Civil Aviation to decide which one will receive the accolade for the next term. Current airport concessionaire is the Australian owned AVIS Rent a Car organisation.
Hot contenders for the privilege of serving the air traveller are American owned Hert7. Rent a Car and Kays which, while mainly Australian owned has a small American investment. At this stage Avis is regarded as favourite, but the Hertz organisation had made a strong bid and went to the extent of flying over three of its American executives to conduct an intense lobbying compaign in Canberra.
The rent-a-car organisations are only an infinitesimal section of what might be termed the ‘Australian transport industry’, but even in this field the Americans are keen enough to send three executives by plane to foster the company’s activities in Australia. It will be seen that oversea interests have an eye on even this kind of business. Goodness only knows why this sort of overseas investment is allowed by the Government.
I said in reply to an interjection by Senator Ormonde that I would refer to a particular industry. The industry 1 had in mind is the advertising industry, which might commonly be referred to as a ‘service industry’. The economists when speaking of statistics describe advertising as an invisible cost. This industry is rapidly being dominated and swallowed up by overseas interests. Because of a growing economy and increased population, and of course the necessity for Australia to secure export markets and to expand our own home market, the advertising industry is ipso facto an expanding, thriving and lucrative industry. There are some 350 advertising agencies in Australia, only nine of which are owned and controlled by oversea interests, but these nine control 50% of the Australian advertising billing. That is a pretty high percentage.
– They would not be very much interested in the Australian content in the theatre, would they?
– I shall come to that shortly. In this sort of industry, that is worth about $350m a year, 50% of the whole industry controlled from outside Australia is, to use an Australianism, not a bad slice of the cake. How can one gauge the extent to which this industry is being taken over? T suggest that honourable senators should devote their attention to another article in the March 1968 issue of ‘Rydge’s’ headed ‘The Foreign Face of Australian Advertising’. The opening words are:
Australian advertising has changed drastically in the last five years. Increasing expertise is very obvious: not so well known is the growing dominance of overseas interests in the agency field.
Then the article summarises the perils of this trend and asks rhetorically whether the all-Australian advertising agency can survive. At page 12 the article states:
While the brake that President Johsnon has applied to United States investment overseas may slow down the rate of take-over of Australian advertising agencies in the next year or so, it seems inevitable that the proportion of advertising billings in the hands of overseas-controlled agencies will continue to rise - although at a slower rate.
And it also seems likely that with increasing foreign domination of the Australian advertising industry will come increasing pressures from across the seas.
Up till now the Americans have been content to play it ‘cool’; to leave the day-to-day management, indeed the medium-range planning, of their subsidiaries here in the hands of our nationals. But the squeeze on agency profits in the U.S., even with the biggest ‘shops’ and the emphasis that is being placed on greater returns from foreignbased operations, throws up the possibility that it will not be all that long before other voices are calling the tune.
This is a serious state of affairs. As Senator Ormonde implied, we are trying to develop a form of culture of our own. One of the ways of giving Australian artists and actors an opportunity is for the Government to insist by way of regulation that Australian television be Australian owned. Unfortunately, Americans are now really getting well into the advertising agency business. The article, dealing with advertising companies operating in Australia that are completely controlled from overseas, continues:
Later on in the article one reads that while this firm, which has international billings of $US560m, with 55 offices in 26 countries around the world, had in 1966 an Australian net profit of $102,000 of which $54,000 was repatriated. This is a serious state of affairs affecting the advertising industry - a service industry. The Government would have the people believe that it allows oversea invesment in Australia only for the purpose of developing Australian resources, but here there is evidence that oversea capital is being used in a service industry to take over from Australian enterprises. Here is a specific industry, which can be run efficiently by Australians with the required knowledge and capacity, that is being sold down the drain to oversea interests. This is neither to the credit of the Government nor to the credit of the overseas interests. It is to the credit of Australia and Australians generally that they are able to promote Australian products, not only here but also on overseas markets. At present a great takeover of the advertising industry in Australia is taking place and in one case - T could cite many others - half the dividends payable in one financial year have been sent to an overseas country. There is great concern in all sections about this situation.
The overseas companies that are patronising Australian advertising agencies are to be commended for giving Australians a chance to develop their own culture and to display their own talents. However, I strongly criticise and condemn American and other overseas organisations that have invested in Australian businesses to promote their interests and have then transferred their advertising accounts from an Australian advertising agency to an American advertising agency. They should be made to patronise Australian agencies.
– They are economic cannibals.
– Of course. They are filching the profits made in this country, no matter which way it is looked at. They virtually take over two industries. How long can this continue? The article goes on to say that the Americans themselves are not unconscious of the ambiguity of their position. The possibility of national backlash is revealed in a recent article on the politics of. foreign investment by Leo Model, an international economist and senior partner in Model, Roland and Co. of New York. He wrote that an Australian who wants to buy shares in the leading company in the Australian automobile industry must buy shares in General Motors-Holden’s Pty Ltd. He says it is an excellent company and investors all over the world have done well with their shares, but it is a United States company. The article states:
Foreign investors in such enterprises can have only a minuscule voice in determining its policies . . . the very fact that US enterprises abroad are so large and so successful has generated a resurgence of economic nationalism - a mixture of mercantilist protectionism with political overtones.
Local businessmen often feci that they are being excluded from the most profitable growth sectors of the economy because they cannot compete . . . in other countries where the expansion of American enterprises is essential to development, US companies are urged by their Government to step up the remittance of profits, to export more to their foreign affiliates and to import less from them.
Is it any wonder that some Australians say that the guidelines for US companies have the effect of improving our balance of payments by worsening theirs . . .?
– Does the honourable senator believe that a person or company wishing to sell a business should be prohibited from doing so?
– I believe that rules should be laid down by this Government in specific form as to the manner in which overseas investment is to be allowed. Greater consideration has to be given to the double taxation agreements being entered into between countries, with particular attention being paid to takeovers. 1 do not know off-hand how anyone can stop the sale of an Australian company to an overseas buyer, but protective action can be taken by governments through taxation agreements in order to stop the alarming drift taking place in a great number of Australian industries, and in particular in the advertising industry. 1 commend to Treasury officials the article from which I am quoting.
Sitting suspended from 12.45 to 2.1 5 p.m.
– Prior to the luncheon suspension I was dealing with overseas investment in Australia, particularly as it relates to the Australian advertising industry. I pointed out that the top Australians in the advertising media are keen to promote the sale of Australian goods not only on the home market but also on the export market but are finding it frustrating to be working for an American company selling the goods of a company operating in Australia but controlled from overseas and competing with goods from the overseas parent company. The article The Foreign Face of Australian Advertising” in ‘Rydge’s’ states:
One Australian advertising agent. Keith Campbell of Melbourne, has expressed concern at US control in such key sectors of the Australian economy as finance and transport, lie was no doubt thinking of such advertising accounts as TAA, Ansett-ANA and the free enterprise banks.
In other sectors’, Campbell has said, ‘it seems somewhat paradoxical to me that Australian companies who want to build exports and overseas balances should place their advertising contracts through US agencies here, agencies which can channel profits back to the US . . . importantly, to companies whose policies may prevent the full exercise of our export operations in certain areas’. (That American owned or controlled affiliates here arc often subject to some restrictions in competing with the home office in third markets is seen by some as an unwarranted brake on our export development programme.)
As 1 said earlier, this is a matter of great concern not only to the Labor movement but to Australians generally. Only recently a letter written by the President of the University Liberal Club at the University of New South Wales appeared in the Australian Financial Review’. Among other things, he said in the letter:
This club recognises Hie valuable part which foreign investment can play in Australia’s development, but expressed serious disquiet at the rising level of foreign control of Australian industry and resources, lt therefore considers that an Australian industry should have at least majority Australian control, that an embargo be placed on foreign takeovers of efficient Australian firms, that registration on local stock exchanges be mandatory for all substantial foreign owned enterprises, and that no foreign owned company be permitted to hold natural resources which it is not demonstrably developing for the benefit of Australia.
Only this morning we read in the ‘Sydney Morning Herald’ that in the period from January to March of this year there had been a record intake of investment in Australia, to the extent of about $314m. Also today in another newspaper we read that the President of the Bank of Tokyo, who is in Australia at the present time, pointed out that Japan had ensured that it kept its equity in foreign business and emphasised that, if Australia did not do that now, in 30 or 40 years our descendants would be saying: ‘What have our ancestors done to us?’.
I refer now to a specific article in the Agreement’, namely, article 13, which relates to public entertainers. The explanatory memorandum states:
This article provides that remuneration derived by a person from his personal activities as a public entertainer or athlete may be taxed in, and is to be treated as having a source in. the country where the activities are carried on.
– Surely the honourable senator would support that contention.
– Just a moment. The explanatory memorandum continues:
Under the article, Australia will be entitled to tax remuneration derived by United Kingdom entertainers from performances in this country. The comparable provision in the previous United Kingdom agreement was article IX(3) of that agreement.
Basically that is so. But when we turn to the double taxation arrangement that has been entered into with the United States of American we see that there is no provision of that nature in respect of American entertainers. They can come into Australia for a period of 183 days, I think it is, and earn income here without it being taxable by the Australian authorities.
– Does the honourable senator believe that position to be correct?
– I believe that it is very wrong to have one situation in respect of the United Kingdom and another in respect of the United States. The provisions also apply to Australian artists or entertainers performing in those other countries.
– But is the honourable senator’s statement correct?
– I have read the Agreement between Australia and the United States and I cannot see any such provision. If I am wrong, I will accept the correction. On my reading of the Agreement, there is no provision for the taxation of income earned by American entertainers in Australia.
– Why is the period 183 days?
– I do not know what the arrangement is in that regard. Article IX of the old Agreement is very similar to article 13 of the Agreement now under discussion, which reads:
Notwithstanding anything contained in Articles 11 and 12, income derived by public entertainers, such as theatre, motion picture, radio or television artists, and muscians, and by athletes, from their personal activities as such shall be deemed to have a source in. and may be taxed in, the territory in which these activities are exercised.
Article IX of the Agreement with the United States refers to the period of 183 days, but I cannot see in it any provision in respect of American artists.
We members of the Labor movement believe that specific rules should be laid down for overseas investment in Australia. The present situation in which we allow capital to come into Australia, willy nilly, cannot bc tolerated for much longer. We do not oppose this legislation, but we suggest that in relation to all future double taxation arrangements all aspects of the matter should be investigated completely and reported upon in the interests of Australia and Australians generally.
– I wish to touch on only one aspect of this legislation in regard to overseas capital, which is flowing into Australia at a tremendous rate. I am not opposed to overseas investment in this country. Only the lack of control, the lack of Australian equity and the servicing of the capital worry me. Firstly I believe that we should welcome the American dollar to Australia. I have a firm belief that the Americans are prepared to defend their dollar more than they are prepared to defend their principles on some occasions. Therefore, if we have American dollars coming into this country they will look after us without our having to send troops to Vietnam. The very fact that the American dollar is threatened at the moment shows that their principle is not withered because one of the factors connected with America’s de-escalation in Vietnam is that America has to withdraw her overseas expenditure, and she would rather do it there than anywhere else. The Americans have survived the dollar crisis, which could be broken at any moment by the introduction of special drawing rights or paper gold. I doubt very much whether this will last for very long. So if we have American interests in Australia 1 think we will find that America will be prepared to look after us to a certain extent.
But not only is there lack of control; there is also lack of equity in these investments. I believe, with the Minister for Trade and Industry (Mr McEwen), that we should have some control over overseas investment in Australia. The Labor Party is not on its own in this. The Australian Country Party agrees that there should be some control. It is just a question of how much.
– And so does the independent, senator.
– 40 does the independent senator and, I. hope, the Australian Democratic Labor Party. I believe that there should be some arbitrary proportion of Australian equity. I believe that it should be made compulsory that if an overseas company invests in Australia then a minimum of 20% of the equity in that investment should be held by Australians. I believe also that the Government should look into this matter. It is rather disturbing to us ordinary people in the street to think that because one Government department wishes to be superior to another - I am speaking now of the Department of Trade and Industry and the Treasury - the future of Australia is sold down the line while these two departments fight. T think it is obvious to the ordinary person in the street that the proposition submitted by the Department of Trade and Industry with regard to the control of overseas capital is the only workable one and that Treasury’s proposal on the subject would be a complete failure. In fact, it has already been shown to be a failure because it has been found necessary to set up the Reserve Bank.
Here we find the Government is not worrying about benefits to Australia or about how overseas investment affects Australia; it is worrying about which department can put it over the other. That question seems to be of paramount importance to our Government.
Apart from this lack of equity, what 1 deplore more than anything else is the iniquitous system whereby we allow overseas companies which refuse to allow us the opportunity to own an equity in their investments, to come to Australia and borrow money on our loan market. This is an intolerable position and the Government should stop it immediately. If these companies are not prepared to let us have some equity in their investment, why should we let them have the opportunity of raising funds on our loan market? As 1 have said, it is iniquitous and should be stopped. For the life of me, 1 cannot see any argument in favour of it and 1 doubt, whether anyone else agrees with it. General Motors-Holden’s Pty Ltd, one of an overseas company’s subsidiaries, has been on the loan market twice. Now we find the Esso organisation raising $30m. I do not know whether there have been any others. If there have been, there has been no Press publicity about it.
– This money should be raised by the sale of shares.
– It should bc raised by the sale of shares in Australia, not on our loan market because that deprives other Australians of. the opportunity to raise money for themselves. I only wanted to emphasise that I do not object to overseas capital but I think it should be controlled, and it is deplorable that our Government should prefer to see two departments fighting for superiority instead of considering the interests of Australia.
– in reply - I thank honourable senators for the reasonably speedy passage of this legislation. I listened with considerable interest to the debate and feel bound to say that most of it centred around subjects outside the provisions of the Bills under consideration. 1 am not critical of that.
– You invited it.
– Yes, I invited it. 1 believe that during a second reading debate if someone wants to discuss a matter which is not strictly covered by the provisions of the Bill but which is reasonably closely associated with the subject covered by the Bill, it is reasonable to allow it to be discussed. But 1 think honourable senators will agree with me that in replying to the debate 1 should not be drawn into a long discussion of the subject matter which is strictly outside the scope of the Bill.
The whole question of foreign investment in Australia is not a new topic. I well recall that it has been the subject of election campaigning on occasions, lt is frequently debated on different levels in connection with things that may happen on the stock market or in the commercial life of Australia from time to time, and for those reasons I do not feel disposed to be drawn into a discussion of General MotorsHolden’s Pty Ltd or the Esso company in this particular context.
Senator Willesee referred to this matter in his speech, as did Senator McClelland and Senator Turnbull. But Senator Willesee also referred to royalties, which arc specifically dealt with in the legislation under discussion. He raised some question as to the effectiveness of the definition of ‘royalty’ and the rate of tax that should be paid by overseas recipients of income from investments in Australia, lt is made clear in the second reading speech and reiterated in a note given to me by an officer of the Department: that the definition has been designed to include payments in respect of knowhow and similar payments that are of an income nature. In form, it is similar to that adopted by many overseas countries and closely resembles the international definition recommended by the Organisation for Economic Co-operation and Development. That should effectively answer any charge that the definition is too narrow. h is drawn widely deliberately to meet such things as knowhow.
Senator McClelland raised an interesting point which is germane to the debate. He referred to entertainers and we till had some good fun as a result of an interjection by Senator Gair wilh relation to parliamentary entertainers. But I think they are of lesser image than the professionals. Here 1 think it appropriate to mention some information that has been given to me. Under the United Kingdom agreement, Australia is entitled to tax the remuneration of visiting entertainers from the United Kingdom. Under the agreement wilh the United States, an entertainer who is a United Stales resident is exempt from Australian tax on his fees - and this is the point which is exercising the honourable senators mind - if he is in Australia for less than 184 days in the income year and the services he performs arc performed for a United States resident; that is, if he is employed and paid by a United States resident. If the United States resident performs the services for an Australian resident, the exemption does not apply. So far as is known, the United States has never concluded an agreement putting entertainers in a different position to other categories of persons.
The differences arise out of different agreements with two different countries. Here we have one agreement wilh the United Kingdom and another with the United States and I think all will readily understand that there can be elements of difference in negotiations for agreements with different countries - differences which could not possibly be married in the one agreement. I repeat that the differences arise out of different agreements with two different countries, and a renegotiation of the United Kingdom agreement could not alter the position under the United States agreement. T offer that explanation to the honourable senator. Taxation is a complex matter and if, in retrospect, there are any points of which honourable senators would like further clarification, then, if they contact me subsequent to this debate, 1 am certain that an explanation of any point worrying them will bc readily given.
Question resolved in the affirmative.
Bill read a second time and passed through its remaining stages without amendment or debate.
Consideration resumed from 30 April (vide page 680), on motion by Senator Anderson:
That the Bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 30 April (vide page 646), on motion by Senator Wright:
That the Bill be now read a second time.
– The Bill which the Senate is now to discuss is welcomed by the Opposition. It is designed to limit appeals to the Privy Council from the High Court of Australia. At the outset let me say that what is being done goes a considerable distance towards bringing to an end a state of affairs which we of the Opposition, and many enlightened sections of the Australian community, regard as anachronistic. It has been my privilege, and the privilege of some of my colleagues who sit with me on this side of the chamber - my Leader Senator Murphy, Senator Toohey and others - to press over the years for what, in a broad sense, we have called the abolition of appeals to the Privy Council.
No doubt we will be met. by the argument that it is not competent to achieve a complete abolition of appeals by Act o! this Parliament. I shall say something about that proposition in due course. At the present stage I content myself by saying that I believe that the great majority of Australian people recognise that we, as a nation, have reached a sufficient stage of maturity that in judicial matters the highest court in our land should be regarded as the final court of appeal for Australians. Tn addition, in view of our standing in the international community - one says this quite apart from matters of political difference between the parties - and of our accepted independent position in international councils, that must be the case. I do not say that in any resounding burst of patriotic fervour, I simply put it as an unhysterical view of people in all walks of life who say that Australia today is not what Australia was in 1901 when our Constitution was founded.
The Commonwealth was established as a result of a compromise, the getting together of six colonies of Great Britain. All sorts of compromises were made at that time to make the federation a possibility. Appeal to the Privy Council obviously was one of the compromises between the six States, the new federation, and the Imperial Government of Great Britain, as it was then and as we regarded it then. We have gone a long way since then. We have been through two World Wars. We have attained a new status, not only vis-a-vis Great Britain but also in world affairs as a member of the international community. We have a High Court that has established a reputation which, if it has been equalled, has not been excelled in its capacity to deal with the various legal problems that confront the Australian community.
Not only members of my Party but many other people as well have said that the sensible thing to do is to invest the High Court of Australia with final jurisdiction in all matters of law. This legislation which comes to the Senate for debate, having passed through the other place, is an indication of the Government’s recognition of the fact that the time has come to give effect to that degree of public consensus on the matter. To the extent to which the Bill meets that public consensus it has to be welcomed, and on behalf of the Opposition in this chamber I welcome it. However, when one looks at what the Bill actually does it is plain that it falls substantially short of what is generally regarded as the- abolition of appeals to the Privy Council. The power to limit appeals is contained in section 74 of the Constitution, one passage of which provides as follows:
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise .hy virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
It is sufficiently indicated in the speech of Senator Wright, who introduced the Bill, and in the Bill itself, that that reservation by the Governor-General for Her Majesty’s pleasure is part of what the Bill sets out to do. The question seems to be whether limiting matters in which leave to appeal may be asked is narrower than abolishing appeals to the Privy Council.
The Bill seems to proceed upon the assumption that the Parliament has no power to abolish appeals but that it can only limit the matters in respect of which an appeal may be sought. This was not spelt out in the speech of the Attorney-General (Mr Bowen) when he introduced the Bill in another place, but it seems to me to be spelt out somewhat more definitely in the speech of the Minister for Works (Senator Wright), who is the Minister responsible for the Bill in this chamber. I think that the Senate is indebted to Senator Wright for the interesting address that he gave when he introduced the Bill into this chamber and for the care which he has taken to draw attention to some of the more important functions which the Privy Council has fulfilled in past days and to the types of issues that have been litigated in the Privy Council. I think that we should record our indebtedness to him for his careful introduction to the Bill. He said:
But appeals from State Supreme Courts, whether directly, or after decision by a High Court, on matters not arising from federal jurisdiction, and not involving issues under the Federal Constitution or federal Statutes, are not affected by this Bill. This result may well be recognised as preserving distinctions not closely related to reality. But it is inevitable under the present terms of section 74 of our Constitution.
The Minister seems to be indicating that, although it is a meaningless and unreal distinction, we have a constitutional limitation and that is as far as we can go. 1 hope that 1 do not do him an injustice by attempting to paraphrase what he said, but, if I understand the position correctly, it seems that he is implying that if the Government felt that it was able to go further and abolish appeals altogether it would do so. I am extremely concerned to know whether what, the Minister is putting results from a considered view on the part of the Government and its advisers that it does not have power to abolish appeals, or whether it merely springs from some more cautious approach to the law. In other words, is this something about which the Government is absolutely clear or is it something on which it is acting out of an abundance of caution. These are two different attitudes entirely.
In the committee stage of this Bill I intend to move an amendment designed to test the strength of the Government’s stand on this question. What I will be proposing is that clause 3, which limits matters in which special leave of appeal from the High Court may be asked, be deleted and that clause 4 bc amended so as to remove the right of appeal altogether in all cases except where a proceeding has already been commenced in a court before the commencement of this legislation. In other words, the right of litigants who have already commenced litigation in a court will be preserved. Leave of appeal to Her Majesty in Council, whether special leave or otherwise, from a decision of a Federal court, including the High Court or of a court of a Territory of the Commonwealth will be withdrawn other than in a proceeding that was commenced in a court before the commencement of this legislation.
The point of view that I want to put to the Minister is this: Accepting for the moment the view that the Government’s powers do not extend to complete abolition, are there further limitations that can bc imposed beyond those outlined in this Bill? In other words, the Government can take one of two approaches. It can say that it believes that the Parliament has power to abolish appeals, or it can say that the power to limit appeals ~ includes the power to limit appeals only to those matters which have already been commenced in a court. Acting on the lesser and narrower view, and acting within the approach that the Government has adopted, I will move an amendment designed to test how firmly the Government feels as a matter of law on this question.
This is not the place to decide this question finally, even if the Bill is amended in the way that I am foreshadowing, but the Opposition would like to have some indication from the Government as to whether it is really trying to test its power to the limit or whether it is acting on a cautious view of the amplitude of that power. That in a nutshell seems to be the approach that the Opposition takes to this matter. It wants appeals to the Privy Council abolished if this is at all possible. Without being disrespectful to those distinguished gentlemen who have sat on the judicial Committee over the years, the Opposition is of the opinion that they have no more wisdom in dealing with matters that arise in Australia than has the highest court in the land, the High Court of Australia, which has a very good reputation. We would be prepared to go as far as the law would allow us to go. Rather than move an amendment which would involve the Senate in perhaps having to look at some question of whether there is a power to abolish rather than a power to limit, I am assuming that the power is only to limit and J am suggesting that what we are foreshadowing is comprehended within that power. One could deal with this question in other aspects, but I think it is clear that the public would like to see these appeals abolished if it is at all possible. I suspect from the way in which the matter has proceeded that the Government also would like to see them abolished but that it is perhaps proceeding conservatively and cautiously in the matter. Certainly the Opposition wants to strengthen the view that in the kind of Australia wc have today our own highest court should be the final and conclusive arbiter of all matters that fall for determination in our judicial system.
With those brief remarks I indicate that the Opposition will not be opposing the second reading of the Bill but will at the committee stage move the amendment that I have foreshadowed. However, we will not finally oppose the passage of the legislation. As I said at the beginning of my speech, it seems that the Government could have gone further and we invite it to consider our submission. Really there are a lot of matters left on which an appeal can go to the Privy Council. For example, the Commonwealth cannot abolish appeals directly from State courts to Her Majesty in Council. What it can do, however, is limit appeals from its own courts. It is quite clear that in all matters of Federal jurisdiction, in matters in which State courts exercise Federal jurisdiction, in matters affecting the Constitution and in matters affecting Commonwealth law, the right of appeal will vanish with the passing of this legislation.
But there still remains an area in which appeals from State courts to the High Court and from the High Court to the Privy Council will not be affected on matters that have nothing to do with the Constitution or Commonwealth law, matters arising in the State courts either at common law or under State legislation. We cannot see why the Commonwealth does not have the power to say: ‘If you want to appeal from a State court on a State matter that has nothing to do with federal jurisdiction, federal legislation or the Constitution, make up your mind whether you want to go to the High Court or the Privy Council. If you want to go to the High Court, that is your final court of appeal. If you want to go to the Privy Council that is your privilege, if you can use the proper way of getting to the Privy Council and having the matter adjudicated.’
But this present legislation leaves the litigant with the opportunity to say: ‘I will go to the High Court and I will go on from that Court to the Privy Council, even though I could not do this if it were a federal matter or a matter involving federal legislation or the Constitution’. It seems to us to leave a fairly wide area in which appeals can still operate and I am not quite sure that I would agree with the Minister’s observation that a distinction has been preserved which is not closely related to reality. In fact, there is an area here that will be preserved for appeal. It is illogical and if a way can be found to deal with it within the powers of this Parliament it should be found.
– I rise to support the Bill. On the explanation already given by Senator Cohen, I am inclined to oppose the amendment foreshadowed by him. The question before us is one that has been running for close on 70 years. As I see it, it relates to the prerogative of the Crown. Section 74 of the Constitution reads:
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council.
Then we come to something that we are doing today:
The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
The purpose of the Bill before the Parliament after 67 years is to impose a limitation on the right of the subject to ask for special leave to appeal to Her Majesty in Council. As the States did not opt to come under the Statute of Westminster there is no doubt, as I see it, that neither the State Parliaments nor this Parliament could cut out that right of appeal from State Supreme Courts. I would say that the Parliament at
Westminster would have to amend its legislation relating to appeals if this right were to be withdrawn in the matter of appeals from the Supreme Courts of the States.
The Attorney-General (Mr Bowen) made a statement last September of the intention to carry into effect what is now before ns and the reactions of the States are very interesting. I understand that as recently as 21st March the Queensland Government had made no decision as to whether it would interfere with appeals from the State Supreme Court to the Privy Council. In Tasmania, likewise, the matter was still under consideration. In South Australia the previous administration of Mr Dunstan indicated that it did not intend to take any action to abolish appeals to the Privy Council. Victoria came out very strongly in the same way. Consequently the States which have declared themselves - I believe New South Wales does not intend to take any action - put great value on this appeal from their own Supreme Courts to the Privy Council. The States by and large have shown a regard for the importance of this right of appeal, so we in this Parliament should look very carefully and cautiously at what we do. I believe that the AttorneyGeneral has adopted a very cautious attitude in the limited withdrawal - if I may use that, word - which he contemplates in the legislation before us. Clause 3 reads: (1.) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -
This is an appeal from the Supreme Court to the High Court in a non-Federal matter: and
That is, a Federal law: or
That is, an ordinance stemming from a Federal Act: (2.) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act.
So 1 think that the Attorney-General in his wisdom has gone far enough and that the amendment foreshadowed by Senator Cohen goes too far at this stage. Incidentally, it was not thought of or moved in the House of Representatives but I do not decry that in any way. In the light of the feelings of the Attorneys-General of the three States that have declared themselves, we should not go as far as Senator Cohen wants us to go. I believe that it is high time matters such as this particular section of the Constitution which have not been acted on for nearly 70 years were looked at. because all of the writings of leading jurists and legal professors in Australia in recent years indicate the desirability of this.
I would like to- mention an article written by Professor Zelman Cowen, the present Vice-Chancellor of the University of New England. The article appeared in the Melbourne ‘Herald’ in September 1956. The Professor argued very successfully that appeal from our courts to the Privy Council in London could disappear without harming the fabric of the British Commonwealth. I am inclined to agree with the general tenor of that argument. Professor Cowen explained that during the Second World War the Commonwealth Parliament adopted the Statute of Westminster. The adoption, in broad terms, has resulted in great legal and political development of this nation. Since the end of the war we have taken full control of our international affairs and have exchanged ambassadors with other countries. Prior to the last war we worked always through United Kingdom ambassadors. Now we have ambassadors and high commissioners in 30 or 40 countries throughout the world. Professor Cowen said that it was odd that in matters of law and legal administration we continued to send appeals to the Judicial Committee of the Privy Council. I believe that the Attorney-General’s cautious approach at this stage is a step in the right direction. I believe that litigants who, commence their litigation in a State and decide to appeal to the High Court, should not in any way be embargoed from appeal to the Privy Council. If such an appeal were allowed the litigants could go to the Privy Council, as is their right at the present moment.
T was interested lo read in the debate in another place that the honourable member for Reid (Mr Uren) gave chapter and verse of what it actually cost for an appeal that he recently had to the Privy Council. By reading his speech I gathered that he was successful inasmuch as he was awarded taxed costs against the unsuccessful litigj.nl in the appeal, but he still had to pay a considerable sum himself. Consequently the question of costs is quite important. Yet it is even more important that the rights of appeal bc not taken away from all mailers in the High Court.
In common, f am sure, with all honourable senators. I have a very high regard for the expertise of the judges of the High Court. They have not become involved in day to day politics, as it was once feared that judges in the dominions might. Our High Court judges have kept themselves quite aloof from the political affairs of this nation. They have devoted themselves to the law and have given great satisfaction. I support the Bill, from the point of view of the litigant. I believe that withdrawal of limited appeals to the Privy Council is in order, but I do not believe that (he cancellation of appeals should go so far as is envisaged in lbc amendment foreshadowed by Senator Cohen.
– I want to say a few words on what I consider to be a quite important matter, lt is of no little satisfaction to me to sec that action has been taken, even in a most limited way, by the Government to limit appeals to the Privy Council. At this stage I do not want to make an extensive contribution to the debate. 1 remind the Senate that as far back as 8 years ago, during the usual debates on the Appropriation Bills and the Estimates. 1 first raised the question of appeals to the Privy Council. I expressed the belief that the time was rapidly approaching when Australia should sever itself from this final court of appeal overseas and establish its own courts and make their judgments the final legal decisions in Australia. Much has been said about the value or otherwise of the Privy Council as a final court of appeal. It may be true to say that some of the Stales still wish to retain their link with this judicial body. Perhaps those States believe that in some way their interests might bc prejudiced if this link were severed or if the Government enacted legislation of a more far-reaching nature than the Bill before the Senate at the present time.
One of the matters to which 1 have always objected in relation to appeals to the Privy Council is that there is inherent in such appeals a denial of justice to some sections of the community inasmuch as a person without means, seeking justice or being proceeded against, could not adequately pursue his interest unless he had the financial ability to do so. To me this seemed to be wrong, lt seemed to be a negation of justice. History has indicated that on one occasion, at least, the only way a woman could pursue her appeal or make representation to the Privy Council in respect of a matter in which she was involved was by means of public subscription to enable her to reach this final court of appeal. I thought that was wrong. As a layman, I may not be as qualified as are other honourable senators to express opinions on legal matters, hut even a layman can detect whether the elements of absolute justice are inherent in a situation. This was one of the things that first caused me disquiet about the fact that Australia’s final court of appeal was a body some 12,000 miles from the shores of this country. The conviction grew in my mind that in the main the people who availed themselves of this final redress were people of means, people of substance and people well able to meet the cost. Undoubtedly there have been instances throughout the years in which people have not been able to meet the cost and, as a consequence, have not been able to have access to the last fount of justice. I believe that is wrong and .1 think everybody would agree that it is wrong.
The step taken by the Government is a hesitant one. The Government might reasonably argue that it was wise to take hesitant steps in regard to severance from this final court of appeal. I will nol pursue that argument to any great length because I can see some degree of justification in the Government’s attitude. By the same token, I can see no reason why the rather mild amendment foreshadowed by Senator Cohen should not be accepted. I do not believe that the amendment would force the Government into taking a step that it considers unwise. To some extent it might be said that this first step is too hesitant, but the amendment proposed by Senator Cohen would not lead the Government into deep waters where it might be in danger.
If Senator Cohen’s amendment is defeated - I hope it will not be- I trust that it will not be very long, now that the first move has been made, before we will be taking further and more positive steps towards establishing in this country something which I believe is the right of every country, particularly a country of our standing. I refer to the right to determine matters in our own final court of appeal, as other countries have been able to do with a large degree of success.
– This Bill is intended to mark the end of an era, and when it eventually becomes law it will be the end of an era. The role of the Privy Council in Australia’s constitutional development and its place in the development of Australian legal concepts have been quite significant. With its disappearance as a significant, part of the Australian legal scene it will remain for Australians to proceed for themselves in the future with their own constitutional and legal development. Therefore this is a significant step. I join Senator Cohen in support of this measure, which was introduced in this chamber by the Minister for Works (Senator Wright). It is with no disrespect for the care and consideration with which his address was adorned nor for the more formal authority of the second reading speech in another place by the AttorneyGeneral (Mr Bowen) that I say neither speech expressed any real justification for this measure nor attempted to give any persuasive reasoning in support: of it. Though Senator Wright’s speech was a very interesting and informative explanation of the role that the Privy Council has over the years played in Australia’s constitutional development, it was no more than that.
I think it is relevant, particularly in the light of the contents of the measure and Senator Cohen’s proposed amendment, to give some consideration to what may be thought to be justification for the Bill. For what reason is Australia at this stage proposing to abandon appeals to the Privy Council and limiting them to the extent proposed in the Bill? As I said on an earlier occasion, by this measure we shall go a long way towards asserting an opinion that was expressed by the founders of the Constitution when they took their initial draft of the Constitution to the Imperial Parliament in 1900. That is merely a matter of history. I suppose the major argument in favour of the measure is the one to which Senator Cohen referred - that the public want it or some similar measure designed to abolish appeals to the Privy Council. The opinions expressed at public opinion polls support this contention. My research indicates that only two such polls have been held, one in 1955 and the other 10 years later, in 1965.
– Why did the public want it?
– I think one can only hazard a guess. I was about to say that these polls must be treated with some caution. A question, divorced from its context and isolated from reasons for or against a particular view, is put to a member of the public. When the question ‘In your opinion should our final court of appeal be the High Court of Australia or the Privy Council in London?’ is thrust at a person without giving him the opportunity to consider it beforehand, how he answers is merely a matter of intuition and instinct. His answer may, of course, be changed if he is involved in some discussion of the merits of the case - the pros and cons of it.
It is interesting to see what public opinion was. In 1955, 65% of people who were asked the question to which I have referred replied that they preferred the High Court of Australia to be the final court of appeal, 22% preferred the Privy Council, and 13% were regarded as having no opinion. In 1965, 81% of the people questioned were in favour of the High Court, 10% in favour of retention of the right of appeal to the Privy Council, and 9% had no opinion. Let me now turn to the reasons that were expressed in giving those answers. This will to some extent answer the point made by Senator Toohey. The only reasons expressed were that Australian affairs should be dealt with in Australia and that Australian judges were competent.
As it appears that the public has expressed an opinion in favour of abolition of the right of appeal to the Privy Council, I feel it is reasonable to conclude that the public will favour either the limitation or abandonment of appeals to the Privy
Council, leaving the High Court as the final court of. appeal in Australia. I think that is the substantial reason which has prompted the Government to introduce the measure at this stage. Other arguments have been adduced over the years. One is that retention of the right of appeal to the Privy Council is inconsistent with Australia’s status as an independent nation. I venture to say that this argument, which has been advanced in other places, but not in this chamber, is a superficial one that does not bear close scrutiny. No-one will suggest with any confidence that Australia is not in all respects an independent nation. We are the masters of our own affairs and we are able to follow the courses that we seek to follow. We are free to determine for ourselves whether we shall retain the right of appeal to the Privy Council or abandon it, just as we are free to determine for ourselves what shall be our destiny.
The existence of the right of litigants to apply to the Judicial Committee of the Privy Council in London for leave to appeal from a decision of the Supreme Court of an Australian State or the High Court of Australia is not inconsistent with Australia’s independence. We in this country have, of course, always had the power to remove this right of appeal to the Privy Council, in that we have always had the power to amend the Constitution. But an amendment to the Constitution could take away, not only the right of appeal from a decision of the High Court, but also the right of appeal from a decision of a State Supreme Court. An attempt to effect such an amendment has never been made. Such discussions as have taken place on this matter in legal journals have not suggested it as a serious proposition. There is the alternative course of limiting appeals to the Privy Council, and that is what this measure proposes to do. It also has always been within the province of the State to request the Imperial Parliament to pass the necessary legislation to prevent the Judicial Committee of the Privy Council from considering appeals from the States. I have no doubt that the United Kingdom Parliament would accede to such a request if it were made, ft is consonant with the whole relationship that has grown up between the Australian States and the United Kingdom Parliament that any request made by the Australian States would be acceded to, notwithstanding the non-accession of the Aus tralian States to the provisions of the Statute of Westminster. It has also been suggested that it is wrong for any country to have as the final arbiter of its laws a body the members of which are not responsible to or elected or chosen by those for whom it is making judicial decisions. But I ask: Why is it wrong? After all, the adjudication of the law and the functions of the courts are not representative processes. The obligations of the judges ate obligations to apply legal principles and legal rules to facts in cases which come before them and to apply those rules and principles devoid of any consideration of what might be the political or social consequences. Ft is, of course, a legalistic function. I mention and I stress that only to show that it is not by any means a representative process and therefore it is irrelevant to the legal function to have any regard to whether or not the members of the tribunal which administers the law are chosen by or are responsible to the mass of the electors.
The final reason which has been advanced as to why the appeal should be abandoned is that a retention of the appeal smacks of colonialism. It seems to me that Australia is not in any way to be regarded as colonial simply because we retain a right of appeal to the Privy Council. Malaysia and Ceylon, to mention two countries which may be supposed to be more concerned about whether or not they still carry the taint of colonialism, have retained the right of appeal to the Privy Council, notwithstanding that they have in other respects complete independence. It would appear to me that their retention of this right of appeal is an indication that they, for their part, do not regard it as smacking of colonialism or in any way as depriving them of their right or ability to determine their own affairs. Indeed, members of the Opposition who over the years have expressed views of the type which 1 have mentioned have almost in the same breath accepted Australia’s obligations under the United Nations Charter and her obligations to accept and accede to the decisions of the United Nations Security Council and, additionally, the decisions of the International Court of Justice. In my opinion there is no suggestion in our willingness to accept the decisions of those international bodies that our independence is in any way lessened. Yet there seems to be little substantial difference between our acceptance of the decisions of the Privy Council and our acceptance of decisions of other bodies to which internationally we are committed.
The decision has been taken by this measure to limit the appeal and I find four reasons why I am prepared generally to support the Bill which has been introduced. The first is that the High Court is a court of high standing and general excellence. It has a reputation which is recognised throughout the English speaking world and among lawyers in that world as being of a very high quality. It has been at all times a court of high quality. There is no reason to suppose that it will not continue to be so. Secondly, it is natural that a nation would seek to have within its own bounds and as part of its own nationhood all agencies of government and legal administration. It is this natural tendency, which I said earlier was first expressed in 1900 and which is again being expressed, which would justify and indicate why it is desired to limit or abandon the appeal to the Privy Council. A third reason is the reason which was advanced by Senator Toohey and in which I think there is substance. It is one which has always been a very real problem in a consideration of this matter, that it is an expensive matter for a person to have recourse to an appeal to the Privy Council and it is therefore a body which is largely open only to the wealthy and not to other people, although legal aid measures can to some extent, tone down what might have been the deficiencies of that approach. I think finally there is a substantial and highly probably a majority opinion throughout Australia that the High Court ought finally to determine legal questions in Australia.
But having said that, one considers the terms of this Bill. I believe that the distinction which it makes is quite unreal, is complex, is potentially productive of disputation and unnecessary litigation, and possibly could lead to some injustice. The expression of the matters in respect of which the appeal is to be limited is quite clear, but it is what is comprehended within the expression of those matters which is not so clear. For example, what are matters involving the application or interpretation of laws of the Commonwealth? That is one field of matters in respect of which an appeal will not hereafter lie to the Privy
Council. What does it comprehend? One example comes to mind. A person may be owed a sum of money and may want to have recourse to law in order to recover it. So he may sue for an amount of, say, $25,000. He may sue on two bases - that the money is owed to him because there was an agreement that it be paid to him or, alternatively, that he was given a cheque for the amount and the cheque has been dishonoured. But once an action is brought in which the cheque is relied upon as a cause of action, that involves the application or interpretation of a Commonwealth law because the efficacy of the cheque and those rules which relate to whether or nol it may be sued upon involve the application or interpretation of the Bills of Exchange Act. In those circumstances is a person entitled to appeal to the Privy Council or is he not? It would appear to me, just as I concede it may appear in a contrary way to another person, that he would not be able to appeal to the Privy Council. But the point which I make is that this is a field which is potentially productive of litigation and - who knows - an application to the Privy Council to determine whether or not an appellant in those circumstances would be entitled to take his action.
– Are not all laws made to help barristers?
– I hope that if they do help the barristers it is merely an accidental mischance due to the fact that not sufficient appreciation has been given to what the words actually mean.
– What does the honourable senator mean by ‘mischance’ - an intentional accident?
– I think what we should do is to look at the laws which are drawn up primarily for the benefit of the community and if we find that there are matters which may by some chance bring litigation we should do what we can to clarify them. There are other aspects of some difficulty which would appear to arise on a consideration of the terms of the measure which is before, us. What is it that involves in the High Court a question of the application of Commonwealth law? Can a party raise a spurious issue that something involving the application of Commonwealth laws has relevance to the particular case and, once that issue has been decided against him, use that as a reason why an appeal should not be brought to the Privy Council by the party who has lost on another substantial issue? Why should a resident of one of the States who litigates in the Supreme Court of that State be able to take his matter on appeal to the Privy Council whereas a person who is a resident of a Territory and who sues in a Supreme Court of a Territory may not lake his matter beyond the High Court?
The question also arises of suits against the Commonwealth. They may be brought either in the Supreme Court of a State or in the High Court. A decision of the High Court probably could not be appealed from as a result of these measures, whereas a decision of a Supreme Court could be taken on appeal to the Privy Council. These are matters which in years to come may involve some manoeuvring for advantage and possibly by-passing of the High Court and uncertainty on whether an appeal lies. The cost expedition and finality of litigation to which the Minister for Works (Senator Wright) referred as real factors in the administration of the law would not be achieved. I believe that these are anomalies which in the overall picture are relatively slight. After all, the number of appeals to the Privy Council represents a very small fraction of the total number of cases heard throughout Australia. Similarly, they represent a relatively small percentage of the decisions of the Supreme Courts of the States and of the High Court. The total number of cases involved is very slight indeed.
However, individuals are affected - the rights of one individual as against the rights of another individual. I think we are entitled to have regard to the fact that the rights of individuals are involved in these matters and that the position we are creating provides not clarification but complication. I think this position is recognised in Senator Wright’s statement. He said that the result of these measures may well be recognised as preserving a distinction not closely related to reality. It appears that there Ls no real basis for saying that appeals may lie from the Supreme Courts of the States but appeals may not lie from the High Court of Australia. In regard to appeals from the High Court, it seems unreal to say that some appeals - those relating to constitu tional matters and matters of federal jurisdiction - may not be taken to the Privy Council, but appeals in other matters may be so taken.
As I understand the position, it is not suggested that the Privy Council is more fitted to adjudicate upon law in particular spheres than it is in others. Accordingly, the distinction made is one of convenience and would appear to have its genesis in certain remarks made by Sir Robert Menzies, our former Prime Minister, when speaking in 1965 in the House of Representatives on a motion moved to consider the abolition of appeals to the Privy Council. He then said: - one way in which we could limit the matters that may go on appeal would be to provide that in relation to all matters arising under the Constitution or involving its interpretation, there should bo no leave without a certificate of the High Court; in other words, abolish the distinction in respect of questions involving disputes as to the powers inter se of the Commonwealth and the States, such as any question arising under section 92 of the Constitution or any other question arising under tha Constitution or involving its interpretation.
Of course, that would set a very deep limit indeed on the type of case that might go to tha Judicial Committee; but 1 mention it as one point that sometimes I have found a little attractive. I do not commit myself to any view because I cannot commit the Government to any view. However. I personally have been not unattracted by the idea of working out something along those lines.
It would appear that something along those lines is what has been worked out. I believe that another point ought to be regarded in a consideration of this problem; that is, that the judicial interpretation of our Constitution can make it a rigid Constitution. Further, it can involve a wrong interpretation. In those circumstances the amendment of the Constitution can be effected only by a referendum. The history of referendums in Australia indicates how difficult it is for those matters to be carried. Out of 25 referendum proposals submitted to the people of Australia, only 5 have been carried. In the past the Privy Council has been able to resolve, clarify and set down guide lines for further decisions which have been made.
Senator Wright referred to some of the major cases in which the Privy Council has exercised an influence in the course of Australia’s constitutional development. I think it is fair to say that the Minister did not mention that in a number of those decisions the Privy Council freed the High Court from some of the misconceptions under which the Privy Council said it was labouring, arid under which some of the High Court judges had also said they were labouring and from which they were unable to free themselves.
In order to illustrate that point I will cite only three instances. In the case of James v. the Commonwealth, the Privy Council was able to give a decision which has been applied ever since, that section 92 of the Constitution binds not only the States but also the Commonwealth. The question of whether it bound the Commonwealth had been decided in a different way about 16 years before. That decision had prevailed until the decision of the Privy Council. In the case of Hughes and Vale v. the Government of New South Wales which was decided in 1954, the Privy Council freed the High Court from the trammels as to the type of road transport legislation which was consistent with section 92.
I think the significance of that decision is that the case would never have gone to the Privy Council if Sir Owen Dixon, Chief Justice of the High Court at that time, had found himself free and able to reject the authority of an earlier decision in the case of McArthur v. Brodie. When the decision was given in that case in 1948 Sir Owen Dixon had been in the minority. When in 1953 it was sought to challenge the decision in McArthur v. Brodie before the High Court, Sir Owen Dixon said that having regard to the fact that it was accepted authority he could not overrule it himself and declined to do so. Had he so acted, the decision may not have gone on appeal to the Privy Council. If we reach a stage where the High Court, by following its own decisions and recognising the authority of earlier decisions so binds itself that it will not depart from them, a situation could be created in which High Court judges recognise that decisions are wrong but are unable to free themselves from them. That is a field in which the Privy Council has been of special value in our constitutional development.
– They were not unable to free themselves; they were not prepared to free themselves.
– They were not prepared to do so because they were following legal rules accepted by lawyers. This is part of the pattern of our law. It has to be recognised that there should be certainty in our decisions. When a case being heard is similar to a preceding case there ought not to be a different result. The third case to which I wish to refer is that of Freightlines v. the Government of New South Wales. This is probably the most recent constitutional decision of the Privy Council. It was delivered about 12 months ago. It was occasioned by the differences of view expressed by judges of the High Court on whether the road transport legislation imposing charges to meet the cost of maintaining roads was contrary to section 92 of the Constitution. There had been many indications that this was a matter full of doubt. The opportunity was taken by the Privy Council, when application was made to it for leave to appeal and stress was placed on the differences of view, to determine precisely what the position was. It did that in one judgment which represents the law for the future.
Apropos of these matters, 1 express the purely personal opinion, which may be challenged by other people, that there appears to be developing in recent decisions of the High Court in relation to section 92 a body of opinion running counter to the body of opinion that is to be found in the Privy Council decisions. Who knows that in a few years there may not well be another impasse in which there is a current of. authority running through a number of High Court decisions on the one hand and a different view expressed in more recent decisions of the Privy Council on the other? In those circumstances we would lack that body which, I believe, over the years has shown its especial merit in its ability to resolve problems in which the High Court has placed itself.
These considerations suggest that in particular cases there is some value in retaining the appeal to the Privy Council, although not in having a general right of appeal to the Privy Council in any matter that may strike a litigant as one which he would like to take there and which he can afford to take there. I believe that there is considerable merit in the limitation of the appeal to those matters in respect of which the High Court gives a certificate that a matter of public interest is involved. After all, that is broadly what was proposed in 1900 by (he people who drafted our Constitution. Under the Constitution at the present time a certificate from the High Court is required in respect of matters related to the limits of the constitutional powers of the Commonwealth and the States; that is, the so-called inter se questions. Only one such certificate has been given by the High Court. That was in 1913. So it is a power in the use of which, on past precedent, the High Court has been sparing. But such a limitation would give for the future that let-out, if a let-out were needed, to resolve problems which the High Court itself recognised and which by its own adherence to judicial doctrine it was unable to resolve. lt would also have the advantage that the High Court would have control of all matters in respect of. which it had made decisions that were to go to the Privy Council. Ft would be consistent with section 74 of the Constitution as it now reads, inasmuch as under that section a certificate is required in respect of inter se questions. In practice it would broadly equate the position of the High Court appeal with (hal of the appeal from the Supreme Courts. At the present time an appeal to the Privy Council from the Supreme Court of a Slate can be made only on application to the Privy Council, with the Privy Council regarding it as a matter of substantial public interest whether or not the appeal should be heard. Whilst the difference would be that in one case the Privy Council would be the determinant of whether the appeal was to be brought and in the other case the High Court would be the determinant, at least broadly the same considerations would apply and no-one would be under any illusions or any necessity to interpret the statutes to determine whether he had a right of appeal. lt would also have the advantage of enabling the judicial structure and the hierarchical system of precedents under which the courts operate to be preserved and thereby enable us to maintain a continuity between Australian law and its developments here and English law and its developments in the United Kingdom. Basically we have the same body of law. Under the present provisions we might well have (he position of the Supreme Court of any one of the States adjudicating on a matter, an appeal being taken from that decision to the Privy Council and the Privy Council slating what the law is, and at the same time the High Court hearing a similar matter in respect of which an appeal could not be taken to the Privy Council and giving a decision contrary to or different from that given by the Privy Council. That could produce an uncertainty that would be incapable of being resolved in accordance with the traditional judicial doctrines, because in certain matters the Privy Council would not be the apex of the hierarchical table of precedents.
I have taken a considerable time to develop certain matters, all of which relate to the substance of the matters contained in the Bill. F am in agreement with the broad idea that the Privy Council appeal should be limited for the reasons that I have given. But I believe that it is incumbent upon us to examine what is proposed in order to ensure that, as far as possible, the proposal is clear and gives expression to the intention of the Senate and of the legislation, so that people will know the matters in respect of which they may appeal and those in respect of which they may not appeal. With all respect to the people who have proposed this measure, I express the feeling that in many respects the actual distinction should and could be made clearer. But, for the broad reasons that F have advanced, F support the measure.
– The purpose of this Bill is to limit the presently existing rights of appeal to the Judicial Committee of the Privy Council. The policy of the Australian J-abor ?arty is, and has been for a long time, the abolition of appeals to the Privy Council. Accordingly, the Deputy Leader of the Opposition (Senator Cohen) has given notice of an amendment which would further limit the right of appeal from Australian courts to the Privy Council.
Senator Greenwood has pointed, I believe very correctly, to a considerable number of anomalies that could result from this Bill. I believe, however, that the anomalies to which he has pointed must necessarily occur, or at least are highly likely to occur, in the complicated legal system that exists in Australia. It seems to me that from time to time and of necessity a great many anomalies must arise in the situation that we have in this country, namely, six sovereign States, each with its own laws, which have merged into a federation, with its own laws, and the complex constitutional relationship between Australia and the Crown, the Privy Council and its Judicial Committee. It seems to me that for as long as we have this complex federal system and this complex Commonwealth relationship there must of necessity be certain anomalies. I do not think it is to be wondered at that we find anomalies in this Bill. I dare say that a considerable number of anomalies may even be found in the amendment of which the Opposition has given notice. But ] would submit that these anomalies are to a very large extent unavoidable. 1 have not been one of the members of the Labor Party who, perhaps, have had some enthusiasm about that plank in the platform calling for the abolition of appeals to the Privy Council. My own feeling has been that there is a great deal to be said for continuing an international court consisting of the most eminent judges experienced in the common law from the common law countries throughout the world so that decisions could be taken on the highest level applicable to the basic principles of the common law which are to be found in a number of countries throughout the world.
Unfortunately, however, the Judicial Committee of the Privy Council has not, I believe, fulfilled this function. Two countries, one of them a very major country, which have their legal systems based fundamentally on the English common law are not members of the Commonwealth of Nations and accordingly have not allowed appeals to the Judicial Committee of the Privy Council for a very long period. They are the United States of America and the Republic of Ireland. In addition, Canada which also, in its federal legislation and, I think, in the legislation of all the provinces apart from Quebec, followed the English common law, has not for some considerable time allowed appeals to the Judicial Committee of the Privy Council. Accordingly, the services of eminent judges, knowledgeable in the common law, from those countries have not been available in any way in the deliberations of the Judicial Committee of the Privy Council.
At the same time, paradoxically, there are countries which themselves do not follow the English common law but which do allow appeals to the Judicial Committee of the Privy Council. One at least of these countries has amongst its judges members of the Judicial Committee of the Privy Council. The two countries to which I am referring - there may be more - are Ceylon, whose legal system is based on the principles of Dutch law and Mauritius whose system is based on the principles of the Code Napoleon. So we find there are two countries which do not have legal systems based on the English common law allowing appeals to the Judicial Committee of the Privy Council, yet a large number of countries whose legal systems are based upon the common law do not allow appeals to the Judicial Committee of the Privy Council.
One of the most important objections - I believe it is a valid objection - to a continuation of appeals to the Judicial Committee of the Privy Council as it is now constituted has been referred to by Senator Greenwood, but discounted by him. He has referred to the objection that the appeal to the Judicial Committee of the Privy Council is a survival of colonialism, and he has quite correctly referred to the fact that Malaysia and Ceylon, which one could assume would be anti-colonialist countries, have maintained this appeal. But I do not believe that this refutes the argument that there is an clement of colonialism in the present composition of the Judicial Committee of the Privy Council and the way in which appeals are taken to it.
The origin of the present appellant powers of the Judicial Committee of the Privy Council, I think, is to be found in the earlier years of the British Empire when a number of courts were being appointed in the remote colonies of Britain and it was felt that some safeguards were needed in order to protect the administration of justice in those colonies from judges who conceivably would be incompetent. For that reason, the Judicial Commitee was appointed so that the mother country could keep a watchful eye on the preservation of justice in the various colonies where courts had been established.
This, no doubt, was satisfactory at the time when it was begun, but it would seem to me to be not a satisfactory position at the present time. Although one does not want to become over emotional about these matters, it does seem to be a very serious anomaly and a reminder that there is still a colonial heritage in the way in which we transact our business when one realises that although the” United Kingdom is apparently, under the terms of the Statute of Westminster, merely another equal member of the Commonwealth, as Australia is, there are no appeals from the courts of the United Kingdom itself to the Judicial Committee of the Privy Council. The ultimate court of appeal for the United Kingdom is the House of Lords. My submission would be that for as long as there is one ultimate, court of appeal for countries within the Commonwealth other than the United Kingdom and a separate court of appeal for the United Kingdom itself, this can only be regarded as a continuation of a colonial status.
Many things have been done to remedy the situation whereby it would appear thai the Privy Council itself was purely an English court. I think all the judges of the High Court of Australia are at present eligible to sit on the Judicial Committee of the Privy Council, as are judges of a number of- other Commonwealth countries such as Ceylon, Nigeria. I think, New Zealand, and other countries. But the fact remains that the Judicial Committee of the Privy Council is still an appellant tribunal which does not have jurisdiction in the United Kingdom. It has jurisdiction only in the countries of the Commonwealth outside of the United Kingdom.
My own view is that if it has been desirable to retain a Commonwealth Court dealing with appeals from countries within the Commonwealth, then, in addition to the appointment of judges from countries other than the United Kingdom as members of the Judicial Committee, two other steps should, of necessity, have been taken. One of these, I believe, should have been some amendment of the domestic British law so that the ultimate court of appeal for the United Kingdom would also be the Judicial Committee of the Privy Council. The other should have been to see that the Judicial Committee did not sit in London only but sal from time to time in Canberra, Ottawa, if Canada were to resume these appeals, Wellington and so on. It seems to me to be an undignified position for a sovereign nation such as Australia that appeals may be taken from the highest court of this country to a court sitting in London whereas it is not possible for appeals to be taken reciprocally from the highest court in the
United Kingdom to a Commonwealth wide court sitting, for example, in Canberra.
If this were to be done - and I personally can see no reason why it could not have been done if some earlier thought had been given to these matters - then, although I would naturally be bound by the policy of the Labor Party, I for one certainly would have worked to see that me Judicial Committee of the Privy Council was retained as an ultimate appellant court for (hose Commonwealth countries whose systems did have a basis in the English common law.
When Lord Devlin was in Australia only a few years ago, he referred to Sir Owen Dixon, who was then Chi;f Justice of the High Court of Australia, as the greatest living common lawyer. That was the view of Lord Devlin who, I think it will be agreed, would be one of the most eminent English jurists. Certain lawyers from the United States of America to whom I have spoken have also had this same high opinion of Sir Owen Dixon and other judges of the Australian High Court. It does seem to me to be a curious state of affairs that a man with a reputation such as that of Sir Owen Dixon, presiding over a court consisting of the ultimate judicial authorities of this country, should be subject to an appeal to a court sitting in another country whereas that other country docs not allow appeals to come from it to a court on which Sir Owen Dixon and other Australian judges are sitting.
In these circumstances I believe that this Bill goes part of the way towards remedying a most anomalous situation. However, f believe that the proposed amendment of which Senator Cohen has given notice takes the matter a step further in the direction in which it must be taken. It is with reluctance in many respects that I find it necessary to support the amendment, but I believe that for as long as the Judicial Commit!ee of the Privy Council is situated in the way in which it is situated at the present time, no Australian having a regard for his own country’s independence, dignity and standing could take any other course than that which has been outlined by the Deputy Leader of the Opposition.
– in reply - For myself, as Minister in charge of the Bill in this place, the debate has been one of profound interest. 1 recognise that members of the Senate who have a special field of experience in the legal profession find these things more interesting than do others whose experience lies elsewhere, but as part of the legislature in this National Parliament it is one of our highest duties to give real attention to anything, especially any substantial measure, that affects to a major degree the structure of judicial administration in this country.
Judicial administration and the independence of the judiciary is the basis upon which our individual rights are secured. We must fashion the judiciary as best we can to fulfil that purpose. I say that because it is not unrelated to remarks that have fallen from honourable senators during the debate in reference to the structure and extent of the jurisdiction of the Privy Council and the judges who compose it. Senator Wheeldon referred even to the personal qualities of some member judges of the Council and other courts. I would hope to eliminate from the argument all references to the quality of judges, recognising the great prestige that they have brought to the High Court and the Privy Council.
Lel me say at the outset that we would be failing in our outlook if we did not put at the forefront of our considerations on this occasion a recognition that the greatest gift the British Isles have given to the world is their system of judicial administration. The Privy Council was the agency by which, in the result, tribunals in the dependencies overseas were corrected and brought into conformity with decisions evolved in the judicial structure of Great Britain. 1 should like to go on record as saying that the first thing that should be recognised is that the British system, of which the Privy Council is the centre, is unique from the point of view of the purity, independence and wisdom of the law that has been transplanted to the dependencies.
This Bill marks the close of an era, if I may adopt the phrase of my colleague, Senator Greenwood. But it may be also the beginning of another era, as a subsequent reference to the United Nations would suggest. The United Nations, of course, has not been accorded sovereignty in respect of the enforcement of its decrees by judicial process. Internationalism has been supplanting nationalism in the growth of European institutions to a significant degree since the war, and in the structure of the European Coal and Steel Community, in the European Atomic Energy Community and in the European Economic Community I suggest we find instances of real development from this era of colonialism which we are closing. Now we are confirming nationalism not only for parliamentary sovereignty but also for judicial administration.
These are instances of growth and expansion from purely national concepts to the development of a judicial structure for international purposes limited in each case to the ambit of the European Coal and Steel Community, the European Atomic Energy Community and the European Economic Community. There is right of appeal to the court of the European Economic Community from the judicial systems of the member States. 1 say that in deference to the references coming from honourable senators that I found most interesting. We would be failing in out purpose if we did not make it understood that the bases upon which this Bill is brought forward provide sufficient practical considerations for good government for the benefit of Australians and that those considerations should guide us in the fashioning of the judicial system outlined by my cotleague in another place, the AttorneyGeneral (Mr Bowen) in a ministerial statement on 6th September 1967. He said:
In reaching its decision to limit appeals, tho
Government has taken account of the growing body of opinion, both in the legal profession and amongst the people generally, that the stage has been reached when steps should be taken towards making the High Court the final court of appeal for Australia. This, the Government believes, Is consistent with the growth of Australia as an independent nation.
He went on to add something that has been confirmed so eloquently by honourable senators who have preceded me in this debate, namely, that our own High Court, our appellate court of supreme jurisdiction, after experience of some 67 years has established in the minds of the people of this country a confidence in its administration that satisfies all the demands they make for a final court of appeal. The ultimate point when one is considering the structure of a final court of appeal is whether one has a court of competence and independence which generally will give satisfaction to governments and all classes in the community by an objective application of the law consistent with all the elemental aspects of law that every individual knows, expects and requires. It is the satisfaction, by that test, with the High Court as a final court of appeal that now makes it unnecessary to have a right of appeal from the High Court in the generality of cases. The other practical considerations that justify this measure are those that I attempted to set out. - with characteristic brevity - in my second reading speech. One factor is cost. This was illustrated in another place by the honourable member for Reid (Mr Uren), who has intimate experience in this regard. Another factor is expedition. The necessity to bring litigation to finality quickly has always been recognised as one of the basic requirements of a satisfactory system of justice. I hope that all honourable senators will realise that it was upon practical consideration of all these requirements of a judicial system that the decision to introduce this Bill was taken.
When we come to consider the scope of this legislation we find a variety of viewpoints from various sections of the chamber which deserve close consideration. One advanced by Senator Cohen is expressed in the amendment that he has circulated. The extent to which appeals from the High Court are to be limited by this Bill is, in his view, inadequate. On the other hand, we heard a. most interesting address from my colleague Senator Greenwood. The closeness with which Senator Greenwood went into this intricate subject made his remarks somewhat difficult to follow, but as 1 understood him it was not in the area in which appeals are to be limited but in the area in which they are to be continued that he saw the greatest merit in discontinuing them. Other viewpoints have been put forward that are not entirely parallel to those that I have outlined, but for the sake of brevity I will not refer to them at this stage.
I want now to examine the viewpoint that I hope will be adopted by the chamber in acceptance of the judgment of the AttorneyGeneral and the Government as to the extent to which appeals to the Privy Council should be limited. Firstly, I remind the Senate - and I think this is absolutely basic to a sound and balanced judgment on this question of extent - that at the time of federation there were already six States in Australia and that from the Supreme Court of each State there already was an inde pendent right of appeal to the Privy Council. This right was continued despite federation. The Federal structure provided for three arms of government, of which one was the judiciary. Therefore, there was a Federal jurisdiction which was to be administered by the High Court of Australia in association with other Federal courts, including Territorial courts, that were to be created. lt was when proposals were made for a finality of appeal for the High Court so that the Federal judicial structure would be unsupervised by the Privy Council that differences arose between the proponents of federation in this country and the representatives of the Imperial Government. A compromise was devised and this is expressed in sections 73 and 74 of the Constitution. The extent to which there should be an appeal from the High Court was a matter of very earnest debate in London and the final expression of the arrangement made is to be found in the terms of section 74. This section provides that no appeal shall go from the High Court to the Privy Council in what are called inter se constitutional cases - that is to say, questions involving the limits inter se of the constitutional powers of the Commonwealth and those of any State. For example, if one State claims that it has a certain area of taxation and the Commonwealth claims that it. has not, that is an inter -se question. The other form of inter se question for which the section provides is as to the limits inter se of constitutional powers of any two or more States. I expect that such a question could arise between Tasmania and Victoria as to the ownership of the continental shelf. I do not know. The Constitution provides in section 74 that there shall be no appeal to the Privy Council except in a case where for special reasons the High Court gives a certificate that the decision ought to go on appeal. The section also states:
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved . . .
That is a specific provision which gives this Parliament power to limit appeals from the High Court to the Privy Council. It is clear therefore that in the light of the limitations expressed in the first and last paragraphs of section 74 the Constitution originally recognised that only on inter se questions should the appeal to the Privy Council be restricted. If in developing further restriction of appeal we go from the narrow category of inter se questions to the general field of questions that arise from Federal jurisdiction or Federal law, the Constitution, or Territorial legislation, we are, I think, adopting a viewpoint that is consistent with the basis upon which section 74 was framed. Of course, 1 do not put that before honourable senators as an all sufficient reason to follow that stream of idea only. I reinforce it by asking the Senate to bc reminded that, as I said at the outset, the six States retained their Supreme Courts, the general body of their taw and the general body of the common law of the country, and from each of the six Supreme Courts there continued to be a right of appeal directly to the Privy Council. No power is given in our Constitution for this Federal Parliament to limit or abridge any appeal from a State Supreme Court io the Privy Council.
There arc quite respectable arguments, I believe, to the contrary but they are not accepted by any published or professional opinion that: has come to my understanding, and I proceed upon what I suggest is the firm basis that this Parliament has not the power to make laws that restrict or limit appeals to the Privy Council from any one of those six States, lt is that distinction that has led the Attorney-General1, I think, to come to a decision on balance, recognising that it is optional for the litigant, after he gets an adverse decision in the Supreme Court of a Stale, to appeal either to the High Court or direct to the Privy Council -certain cases being excepted. If we are to maintain the High Court as an acceptable final court of appeal divorced from the costliness and the delay of going to foreign fields, is it not wise to enable the High Court to hear appeals from the State Supreme Courts if litigants choose to go to the High Court rather than to exercise their right to go to the Privy Council, and to maintain for the benefit of those litigants the privilege, if they want to go further on issues involving purely State matters and not Federal1 matters, of going to the Privy Council after a further adverse decision from the High Court?
That is why, I suggest, the AttorneyGeneral was careful to indicate to the Parliament that the step which the Government now proposes to take is a logical first step towards making the High Court the final court of appeal for Australia, so that we will not get a bifurcation of litigation at the State Supreme Court stage, with an almost equal volume of litigation going by way of appeal direct from the Supreme Courts of the Stales to the Privy Council as is going from the Supreme Courts of the States to the High Court. Consolidation over the next stage of performance of the function of the High Court as a final court of appeal is surely the way to persuade the States that they should join in duc course in limiting appeals for the benefit of litigants - not for prestige of governments or because of airy fairy notions of colonialism - giving litigants access to an absolutely independent court of appeal that can be relied on with great confidence without incurring the cost of going to London and without the delay, and so achieving finality.
To me it seems that it would multiply the channels of litigation if wc were to make an absolute blockage of appeals of all dis.criptions from the High Court now to the Privy Council, as provided in Senator Cohen’s proposed amendment. There is wisdom, I suggest, in the decision of the Attorney-General and the Government to apply the limitation at the present time only in respect of appeals from the High Court to matters that arise under constitutional law. If we lived unembarrassed by the complexities of the federal structure of the judiciary to which Senator Wheeldon referred and without the possibility of creating those two channels, that consideration would not bedevil us. If the viewpoint of Sir Owen Dixon, who has been referred to so deservedly with such appreciation of his unique standing in jurisprudence in the English speaking world, were adopted, we would simplify the whole process. I refer to his collection of papers called ‘Jesting Pilate’ in which he says at page 247:
It is to be hoped that at some future lime it will be recognised (hat under the English system of law, the British system of law which we inherited, the whole body of law is antecedent to the work of any legislature and that the courts as a whole must interpret and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian courts administering the total body of the law.
But we have not been able to start that process and we have to limit this appeal on the present divided structure of the judiciary into State and Federal.
May 1 without wearying the Senate go on to make reference to one or two observations that fell from my colleague, Senator Greenwood? He suggested that if we make the High Court a final court of appeal in constitutional and federal matters we perhaps create a position of rigidity and that rigidity in some instances may contain error without the ability to have it corrected by the higher jurisdiction of the Privy Council. 1 suggest that there are several considerations which discount that argument to which 1 listened with concern. 1 should like to put them, needless to say with the greatest respect for my colleague’s more intimate and realistic acquaintance with this field of practice. In the first place, the High Court has established the rule that it is not bound by its own decisions. As a matter of prudence in the administration of justice the High Court will follow previous decisions as precedents, but in a great number of cases when there have been special considerations the High Court has overruled previous errors. One of the outstanding instances is the engineers’ case. Another instance is the boilermakers’ case in which the Court, without expressly overruling in substance, overruled previous decisions of long standing. Secondly, if there is an error of interpretation implanted in the Constitution by reason of a High Court decision, there is the power of amendment of the Constitution.
– Order! The Minister’s time has expired.
Motion (by Senator Cohen) - by leave - agreed to:
That so much of the Standing Orders be suspended as would enable Senator Wright to complete his remarks.
– I am obliged to the Senate for that courtesy. The third consideration that I would add in reply to Senator Greenwood is that Privy Council decisions are not always followed by the High Court in important matters. The retention of the Privy Council’s jurisdiction to correct errors on appeal could lead to the possibility of two inconsistent lines of judicial authority competing with one another. I believe that a final exposition of: the law will come about by limiting the appeal in the area in which we propose to limit it. If the right of appeal to the Privy Council is retained, the risk is run that the High Court in a subsequent case will say: We have listened to that decision with respect, but we disagree with it’, lt will be remembered that Chief Justice Dixon, I am sure most reluctantly, felt compelled as a matter of precedent to announce that view in Parker’s case some 4 or 5 years ago. We have had a recent decision in Uren’s case, where the High Court expounded a rule its to punitive damages in an entirely different and contrary sense from that of the English House of Lords. The decision went to the Privy Council. Although the Privy Council indicated that the rule applied by the High Court in Australia would not find acceptance in the jurisdiction of the House of Lords in England, the Privy Council said that it would affirm the rule if it were vouched for by the High Court in Australia. If there is to be a rational system of precedent, the complexity of the situation makes it imperative, in my view, that we should not retain but limit the jurisdiction of appeal in cases where confusion could arise because of the existence of two lines of appeal.
I have put before the Senate those considerations in deference to the historic importance of this measure which closes an era. as Senator Greenwood so aptly put it, and because the measure affects one of the arms of Government to which we should give special consideration - the judiciary.
– Would the Minister be good enough to indicate his attitude to my proposed amendment? Is it suggested that it is not within the power to limit?
– I prefer to reserve that indication because the amendment was handed to me only as I took my seat. I have paid attention to the debate. Although the officers of the Attorney-General’s Department have given some consideration to the amendment, it is a matter upon which I believe precision is required. I therefore reserve comment. I commend the Bill to the Senate.
Question resolved in the affirmative.
Bill read a second time, and committed pro forma; progress reported.
Senate adjourned at 4.42 p.m.
Cite as: Australia, Senate, Debates, 2 May 1968, viewed 22 October 2017, <http://historichansard.net/senate/1968/19680502_senate_26_s37/>.