26th Parliament · 2nd Session
Iiic PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., anil read prayers.
– Mr President, I seek leave to make a statement. I realise this is unprecedented before question time, but the statement that I wish to make relates to the recent Queen’s birthday honours list.
– There being no objection, leave is granted.
– I am sure all honourable senators would wish on this occasion I hal we should very briefly express our congratulations to Senator Sir Denham Henty, Senator Dame Dorothy Tangney and Mr Odgers, the Clerk of the Senate, who has had conferred upon him the honour of Commander of the Order of the British Empire. 1 am certain we are unanimous in offering to them our very hearty congratulations on the fact thai Her Majesty the Queen has so graciously conferred upon (hem the honours which they have received. At the conclusion of this sessional period, 1, as I am sure the leaders of all other parties will do, shall direct some remarks to the retiring senators and express our thanks to the Clerk and his staff. I therefore do not wish to develop our congratulations at this time. Nevertheless. I think it most appropriate that at the very first moment of our reassembling after the announcing of the Queen’s birthday honours list we should collectively and unanimously express our congratulations to Senator Sir Denham Henty, to Senator Dame Dorothy Tangney and to Mr Odgers, the Clerk of the Senate, upon having these honours conferred upon them.
– by leave - I have much pleasure in joining in the expressions of congratulations to Senator Dame Dorothy Tangney, to Senator Sir Denham Henty and to Mr Odgers, the Clerk of the Senate, on this important occasion. On behalf of Opposition senators, ] wish each of them well and hope to have a further opportunity of expressing our goodwill to them at the end of the present sessional period.
– by leave - On behalf of the members of the Australian Country Party I, too, would like to express very great pleasure at the honours that have been bestowed upon Senator Sir Denham Henty, Senator Dame Dorothy Tangney and Mr Odgers, Clerk of the Senate. These three awards have been well merited and. with the others who have spoken. I hope to have an opportunity at a later stage to say something further in this connection. At this stage 1 express our very great pleasure and offer our most sincere congratulations.
– by leave - My colleague and I desire to be associated with the expression of congratulations to the recipients of honours on the occasion of the Queen’s birthday this year. The Leader of the Government (Senator Anderson) has stated that he desires our speeches to be brief. I shall observe that request but would like to say that I note wilh interest and satisfaction that the Australian Labor Party has seen fit to permit Senator Dame Dorothy Tangney to breach the platform of the Party. Probably this is because there have been so many precedents in the past.
– by leave - I would like to be associated with the congratulations that are due to Dame Dorothy Tangney, the first woman to became an Australian senator. She provided a bridge over which other women have been able to become members of this House. I am sure that all women throughout Australia are very delighted that she has been honoured by Her Majesty the Queen.
I entered the Senate with Sir Denham Henty and have had the very great honour and privilege of working with him during his parliamentary term. To Sir Denham I offer my warmest congratulations. 1 wish also to extend congratulations to Mr Odgers, the Clerk of the Senate, who at all times has been courteous and unfailing in his duty to the Parliament and to all honourable senators.
– by leave - I do not wish to decry the awarding of honours to those people who have received them on this occasion. I think they have merited those honours. However, I think it is time for the Federal and State governments lo think seriously about the awarding of so-called honours. The history of this Government in respect of the awarding of honours is not without stain, as all honourable senators are aware, and 1 suggest that in future the Federal and State governments should think more carefully, and not as carelessly as they have sometimes done, in recommending the award of honours.
– by leave - 1 wish to express my sincere thanks to Senator Anderson and to honourable senators who supported him in his remarks this afternoon. I feel deeply moved at having received this honour. I have accepted it upon my own responsibility because I think that it is a step in the right direction. Women who are members of my Party have not always had the recognition to which I think they have been entitled. In accepting this honour I think I have opened the door for them in years to come. 1 do not lake the attitude that I have earned the honour myself. Anything I have been able to do in the Senate has been done because I am a member of the Australian Labor Party and of the Senate. On many occasions I have had the support of all honourable senators. I have been particularly heartened by the number of letters and telegrams I have had from honourable senators over the weekend. 1 am very grateful to all.
I would like to congratulate Sir Denham Henty upon his honour. Before he entered the Senate he wrote to me a very encouraging letter in which he informed me that he had listened to a speech of mine in the Senate. It chanced that I was speaking when he tuned in to Parliament. I want also to congratulate Mr Odgers, the Clerk of the Senate, who has always been a great help to me and, I know, to all honourable senators. I think he well merits the honour accorded to him. Through you, Mr President, I express my grateful thanks to the Government and to honourable senators for the way they have reacted to the bestowal of this honour upon me.
Honourable senators - Hear, hear!
– I address my question to the Minister for Works. He will remember that on 30th April last I presented to the Senate the report of the Public Works Committee on the building of Commonwealth Public Offices to be erected at the corner of Ann and Creek Streets in Brisbane. I ask: When is the Parliament likely to approve the building of those offices? What is the reason for delay in granting approval?
– I understand that the honourable senator has referred to the proposed building of Public Service offices in Brisbane, a project which I believe has been considered by the Public Works Committee and the construction of which is now awaiting decision. I am afraid that 1 must ask the honourable senator to await a later announcement of that decision.
– 1 ask the Minister representing the Minister for Primary Industry: In view of the great importance of the meat export industry to Australia, is the Minister aware that there has been a heavy rejection of Australian meat imports into the United States of America? Is he also aware that the rejection insurance on boneless mutton into United States east coast ports was increased on 22nd April last from 2i% to 7%, with a rebate of 2% if an exporter has no rejections on the ship? Does the Minister agree that unless the Government, through its inspection and supervision of his Department, can give meat exporters some guarantee against loss when documents, supported by Commonwealth health certificates, are presented overseas, export of all meats from Australia could be reduced drastically?
– It is some years now since the representative from the United States of America came to Australia and explained the necessity for a very high standard of hygiene in connection with meat being exported to America. We recognise and remember that, as a result of that visit, very large sums were spent on quite a number of abattoirs in Australia to make them comply with that standard. From that point of view 1 feel that it is very disappointing to have this question from Senator Bull, because the matters referred to by him are facts. I have been able to obtain some information for him from the Minister for Primary Industry. The answers are as follows: The reply to the first and second parts of the honourable senator’s question is yes. The reply to the third part of the question is that it is not possible to give a guarantee that meat, which is supported by a Commonwealth certificate, will pass inspection at the ports of entry in the USA and other overseas countries. Departmental veterinary officers and inspectors endeavour to maintain standards of meatworks construction, equipment, hygiene and inspection procedures at the level required by the US Wholesome Meat Act and the specific requirements of other importing countries. However, Australian meatworks managements also have a responsibility to produce a product which is of the standard required by the US and other importing countries. The US standards, inspection procedures and levels of rejection have been discussed this year at several meetings between departmental officers and representatives of abattoir authorities and meat exporters associations. The problem of rejection levels is fully understood.
– My question is directed to the Minister representing the Minister for Social Services. Has the introduction of computers caused a temporary delay in the processing of various social service claims in Sydney? If so, when will the bottleneck be removed?
– I am not aware of the delay, but I shall take the matter up with my colleague, the Minister for Social Services, and endeavour to obtain the necessary information for the honourable senator.
– I ask the Minister representing the Treasurer a question concerning proposed increases in the prices of motor cars produced by the British Motor Corporation (Australia) Pty Ltd and Chrysler Australia Ltd, which follow closely on the heels of the increases forced on the Japanese trade by the Minister for Trade and Indus try and the Minister for Customs and Excise. The BMC and Chrysler price increases are alleged to be the result of recent wage increases. Will the Minister obtain and supply the Senate with estimates of the costs of production, broken down in terms of labour content, materials and so on, for the cars produced in Australia by BMC, Chrysler, Ford Motor Company of Australia Ltd and General Motors-Holden’s Pty Ltd? Does the Minister view with concern the prices spiral shown in the price of motor vehicles to the Australian consumer and which results from the disastrous policies of his colleagues?
– Quite clearly the answer to the question will require some research. .1 saw an article in the Press this morning - I think it was in the ‘Australian Financial Review’ - which dealt with some aspects of the matter. In order to supply the information the Treasurer will need to make reference t’o the companies mentioned by the honourable senator. In those circumstances, if the answer is not available by the time we rise I shall arrange to have the Treasurer’s reply directed to the honourable senator.
– Will the Minister representing the Minister for Primary Industry report to the Parliament on the drastic cuts in imports of dairy products announced by the United States Government today?
– Unfortunately at this stage I am not in a position to give an answer to the honourable senator’s question, but I will endeavour to obtain the information for him. If the answer does not arrive before the House rises I will ensure that the information is forwarded to him.
– My question is directed to the Minister representing the Prime Minister. As 1970 will be the 200th anniversary of the discovery of Australia by Captain Cook will the Government initiate at once arrangements for the celebration of the occasion including, for example, an issue of stamps, a commemorative celebration of Cook’s landing and other appropriate functions?
– When we reach the 200th anniversary I am sure there will be appropriate functions to mark the occasion. As to the particularity of the honourable senator’s suggestions, I will refer them to the Prime Minister.
– Has the
Leader of the Government seen a report that an Australian technical mission is in the United States at present discussing delivery schedules of the FU 1 bombers but that: the Australians will not know for certain until next week whether the aircraft will be delivered next year because testing programmes are well behind schedule? Can the Minister say whether the delivery date of the bombers was discussed between the Australian Prime Minister and the American authorities during the Prime Minister’s recent visit to the United States? If not, has the Government yet received any advice on this matter from its technical mission? Further, in view of the astronomical increase that has taken place in the price of the aircraft since the order was first placed, will the Government give an assurance that no further increases will be tolerated between now and the proposed delivery date?
– The honourable senator’s question could be directed to the Prime Minister’s Department, the Department of Air or the Department of Defence. In view of its comprehensive nature I will direct it to the Prime Minister and the two Ministers concerned and obtain an answer for him.
– Will the Leader of the Government inform the Parliament whether Air Vice-Marshal Ky, the VicePresident of South Vietnam, has been removed from office or liquidated? If he has not, can the Leader of the Government advise why the Air Vice-Marshal was not present at meetings and functions arranged for the Prime Minister, Mr John Gorton, during his recent visit to South Vietnam?
– I have no knowledge as to why Air Vice-Marshal Ky was not present on the occasions mentioned if, in fact, he was not present.
– I preface my question to the Leader of the Government by referring to remarks I made some months ago when comparing the performances of certain conciliation commissioners with the performances of others. On that occasion I was criticised by the then Leader of the Government in the Senate. I now ask the Leader of the Government: Does he not think my criticism was merited in view of the fact that last week the Commonwealth Treasurer and my local member in the House of Representatives defended the Treasurers right to criticise not merely conciliation commissioners but also the Commonwealth Conciliation and Arbitration Commission? ls there one law for Ministers and another for junior senators?
– We all come equal in this place.
– Did the Minister representing the Prime Minister see in the Press - I think it was yesterday - a report to the effect that the Treasurer had stated that Australia would be prepared to oppose aggression in any country? In view of the fact that the Prime Minister has stated that we are opposing aggression in Vietnam only because the Americans are there, should the Treasurer’s statement be qualified by stating: ‘We are prepared to oppose aggression provided the Americans are present’?
– Since I did not see the alleged Press report, 1 cannot answer the question that stems from it.
– Is the Minister representing the Treasurer aware of the importance to the national economy of the contribution made by proprietary limited companies in the field of both employment of Australian citizens and of national production? In the circumstances will the Minister consider providing for an increased retention allowance for proprietary limited companies so that they may retain their own funds and so strengthen their financial base?
– This is clearly a matter of policy. 1 suggest that the question go on the notice paper.
– My question is directed to the Minister representing the Minister for Air. In view of the fact that delivery of the Fill aircraft may be soon, and as a number of these aircraft have crashed either on test flights or on service, can the Minister- give an assurance that test flights carried out in this country will be far removed from populated areas to ensure that there will be no tragic loss of lives in the event of crashes, similar to those which have occurred, taking place in this country?
– Obviously 1 am in no position to bind the Minister for Air to the conditions suggested by the honourable senator, but I should like to inform him - if he has not been informed already per medium of the Press - that it appears now that the possible fault that has been dogging these planes has been found. If it has been found, it will, of course, be rectified. I should also like to remind the honourable senator that only a couple of months ago the Minister for Defence stated that very searching and exhaustive trials and tests of these planes wilt1 be carried out before we take delivery of them.
– My question is directed to the Minister representing the Minister for National Development, ls it a fact that the Minister for National Development made a statement in the latter part of last week which indicated that it is intended that the Snowy Mountains Hydroelectric Authority will keep at least 250 individuals in employment and that they will bc employed in the investigation and design section of the Authority? Is the Minister in a position to say what are the limits of the work which the Authority will carry out in the future?
– I understand that the Minister in another place made a statement on this subject towards the end of last week. Yes, it is a fact that the Government and the Minister intend to keep employed approximately 250 personnel of the Snowy Mountains Authority. They will carry out investigation and design work on projects submitted to the Authority by the various States and/or adjacent countries. It is not thought that the Authority as such WIN construct the projects in the various States and/or adjacent countries. Contracts for those projects will be let by the various States or countries.
– 1 ask my question of the Leader of the Government in the Senate. Will the Government think in terms of an Expo 68, instead of issuing a stamp, to mark the occasion of our 200th birthday?
– That question will be referred to the Prime Minister, as will the earlier question on the anniversary celebrations.
(Question No. 21 1)
asked the Minister representing the Minister for the Army, upon notice:
– The answers to the honourable senators questions are as follows:
(Question No. 242)
asked the Minister rep resenting the Minister for Education and Science, upon notice:
– The Minister for Education and Science has supplied the following answers:
(Question No. 243)
asked the Minister representing the Minister for Education and Science, upon notice:
How many students in each of the Australian States, who obtained Commonwealth secondary scholarships in each of the years since these scholarships were available, (a) did not take up their awards; (b) discontinued their studies in the first year of tenure; (c) discontinued their studies in the second year of tenure; (d) eventually matriculated; (c) subsequently obtained Commonwealth university scholarships; (0 subsequently obtained advanced education scholarships; (g) obtained admittance to a university; and (h) successfully completed the first year at a university?
– The Minister for Education and Science has supplied the following answers:
In determining the number of students to whom scholarships are to be offered, it is anticipated that some successful candidates will not take up an award. To allow for these, more scholarships are offered than the total of 10,000 which is available each year. The figures given in this table represent the number of students who did not accept the offer of a scholarship, and are additional to the number of scholarships awarded each year, as set out in answer to question No. 242.
Allfigures in tables (b) and (c) include a small proportion who had interrupted their studies and may have resumed later.
The numbers shown here as accepting Commonwealth university or advanced education scholarships by no means represent the total number who were qualified to receive these awards. One thousand seven hundred and seventy secondary scholars gained at the 1965 Leaving Certificate examination results, which were good enough to merit the award of a university scholarship. About 800 more were qualified to receive an advanced education scholarship. However, many of these students did not apply for these awards or in some cases preferred to accept a scholarship from another source. In all. 2,981 of the secondary scholars concerned are known to have undertaken some form of tertiary study in 1966 and of these 2,314 received government or nongovernment assistance.
(Question No. 250)
asked the Minister representing the Attorney-General, upon notice:
– The AttorneyGeneral has supplied the following answer: 1 and 2. Additional full benches of the Commonwealth Conciliation and Arbitration Commission were constituted to deal with other matters while one full bench of the Commission was hearing the national wage case of 1966. The details of all full bench hearings in that period were as follows:
(Question No. 256)
asked the Minister representing the Minister for the Army, upon notice:
– The answers to the honourable senator’s questions are as follows:
(Question No. 288)
asked the Minister representing the Minister for Primary Industry, upon notice: ls it contemplated that the present subsidy on butter fat will be reduced, or removed, when and if the Government’s plan for reconstruction of the dairying industry has been accepted by Federal and Slate governments?
– The Acting Minister for Primary Industry has supplied the following answer to the honourable senator’s question:
No. The Government’s policy was clearly stated to and approved by Parliament in the debate on the Dairying Industry Bill about this time last year. The Government clearly committed itself to allocate the sum of $27m as bounty on the production of butter and cheese and $800,000 as bounty on the export of processed milk products each year for the 5 years commencing 1st July 1967.
(Question No. 323)
– On 29th May I placed on notice a question directed to the Minister representing the Minister for the Army, who, I understand, now has an answer. The question is a bit out of date now. lt reads:
– The Minister for the Army has provided the following answer to the honourable senator’s question:
– 1 understand that the Minister representing the Treasurer now has an answer to the following question, asked by Senator Willesee on 29th May 1968:
I direct a question to the Minister representing the Treasurer. Would he forward to the Treasurer the suggestion that the taxation concession given to investors in insurance companies be extended to investors in such bodies as building societies in an effort to improve housing finance?
– The Treasurer has supplied an answer in the following terms:
As I understand the suggestion, it is that deductions be allowed for income tax purposes in respect of moneys invested in bodies such as building societies similar to the concessional deductions for contributors to superannuation funds and for life insurance premiums.
Concessions are allowed in respect of contributions to superannuation funds and life insurance premiums in recognition of the special characteristics of provision through insurance and superannuation both for retirement and for dependants in the event of premature decease. There do not appear to be the same special grounds for extending the concessions to investments in building societies and similar bodies or for differentiating between them and other forms of investment of savings in such a way.
Such a taxation concession in respect of investments in building societies would have substantial defects as a possible means of increasing the supply of housing finance. For example, it could be expected that one of its main effects would be to transfer funds away from savings banks in particular which lend heavily to those seeking finance for the less expensive houses. There would be other more effective, more equitable and more economic means of increasing the supply of housing finance were further measures to that end necessary.
I preface my question, which I address to the Minister representing the Postmaster-General, by advising that today’s newspapers carry a report of a statement by the Postmaster-General that most first class mail is delivered in Australia within 24 hours of posting. Can the Minister explain why letters posted at Townsville in north Queensland take from 2 to 5 days to deliver at Canberra in the Australian Capital Territory?
The Postmaster-General has now furnished mc with the following information in reply:
There are thirteen air mail despatches each week from Townsville carrying letters eligible for conveyance by air for Canberra. Under normal conditions, letters posted at Townsville Post Office up to 1 p.m. on Monday, Wednesday and Friday are delivered in Canberra the following afternoon. However, on Tuesday and Thursday, it is necessary io post by 12.30 p.m., and on Sunday by 11.30 a.m.. in order to obtain delivery the next afternoon. Letters posted after these times are sent forward the next morning and, except for Friday evening’s postings, are delivered in Canberra on the morning of the following day. Those posted between 1 p.m. on Friday and 11.30 a.m. on Sunday connect with deliveries in Canberra on Monday morning. Mail which Ls eligible for air despatch should not take 5 days between posting in Townsville and delivery in Canberra. If the honourable senator has any specific cases he would like followed up. I should be glad to arrange for this to be done.
Is the Minister representing the PostmasterGeneral aware that a considerable number of people in the metropolitan area of Perth are finding it extremely difficult to have a telephone service connected to their homes, in particular in the area between Trigg and Sorrento? Is she aware that people have been waiting for up to 8 months for the installation of a telephone and that the position at the present time is such that the PostmasterGeneral’s Department will not accept deposits from people making application for a telephone service? I appreciate that the Minister would not be carrying this information in her head. Will she ask the Department to make some investigations into the matter and inform the Senate at a later stage of the Department’s intentions?
The Postmaster-General has now furnished me with the following information in reply:
At 28th May, there were 725 applications for telephone service in the Perth metropolitan area on which service could not be offered pending major extensions of plant. Of these, thirty-eight were located in the area between Trigg and Sorrento and the application of longest standing was lodged in June 1967.
Extensive relief projects are planned for the Perth metropolitan area in 1968-69 and it is expected that all existing deferred applications in the area between Trigg and Sorrento should be satisfied by June 1969. lt is not the practice to accept, or request, the payment of fees for the provision of a telephone service until the necessary plant is available.
The honourable senator may be interested to know that in the period July 1965 to May 19681, inclusive, approximately 600 applications for service were satisfied in the area served by the North Beach exchange. This exchange is the one which caters for the area between Trigg and Sorrento as well as some other nearby localities.
In the Perth metropolitan area in general the Department has mounted an increasing effort each year in response to rapid increases in demand for service. The following table shows details of applications satisfied in each year 1965-66, 1966-67 and the estimated number for 1967-68.
– I move:
Thai Government Business take precedence of General Business after 8 p.m. this sitting. 1 do not submit this motion lightly. I take this action with a proper appreciation of my responsibilities as Leader of the Government in the Senate. I know that in the past motions of this nature have been debated spiritedly. Last week 1 gave reasons which suggested that we should need more hours than normally in order to deal with and dispose of Government Business. I ask the Senate to carry this motion.
Regarding General Business, it is our understanding that matters which would be debated under this heading, if passed by this chamber, would not, because of the nature of things, become operative until the Budget session. In all the circumstances and having regard to the number of Bills already on the notice paper and the messages we have received from another place, I think it would be appropriate that we deal with them tonight after 8 o’clock. Subsequent to this motion being resolved 1 propose to move that we meet tomorrow at 10 a.m. However, that will be the basis of a later motion. 1 mention it merely to inform the Senate of what is proposed.
– I desire to indicate to the Senate that on this occasion - 1 repeat, on this occasion - the Opposition does not oppose the motion. lt will be appreciated that honourable senators, and not only those on the Opposi tion side, although I speak for the Opposition, are particularly jealous of their right to discuss general business on Tuesday evening after 8 p.m. That is a right which has been very firmly established, especially in recent times, and we would not lightly want to be party to any procedure which would take away that right. We have had some very useful and important debates during the time that has been allotted for general business under the Standing Orders as they now operate. However, we are appreciative of the present circumstances. We know that there is in legislation coming forward from the Government a very large volume of business for the Senate to transact this week. As 1 indicated last week, some of it, and especially the National Service Bill which is still being debated, is the subject of very vigorous opposition and contest. Having regard to all the circumstances and in the light of the assurance that has been given by the Leader of the Government (Senator Anderson) in moving this motion, that it is not to be taken as a precedent or as having general application, and that it relates only to the particular circumstances of this week, I indicate that we do nol propose lo oppose the motion.
– As the Government and the Opposition are in agreement on this motion there is not very much point in my opposing it. However, I shall be gracious enough to agree to the alteration in the programme of the Senate, lt is true that this autumn session, as it is commonly called, commenced later than normally and certainly is concluding later than normally. As we are expected back in the Senate in August we are not being given a great deal of lime to tour our electorates, which are the States which we represent. Honourable senators representing some States may be able to manage, but it takes senators representing Queensland a considerable time to cover but a part of it because of the distances involved. 1 presume that we will not conclude the Budget session until early in December, In the circumstances, 1 feel that Government’ business has a prior right.
Senator Dame DOROTHY TANGNEY (Western Australia) [3.43] - Whilst not opposing this motion, I regret very much tha the motion for the appointment of a select committee on aged persons homes, which appears in my name on the notice paper, will not now come up for discussion. I hope that other senators will be as interested in this matter as I am and that in the Budget session somebody will bring this very important matter before the Senate.
Question resolved in the affirmative.
– I move -
That the. Senate, at its rising, adjourn till tomorrow at 10 a.m.
In moving this motion I inform the Senate that before we rise tomorrow night 1 propose to move that we reassemble at 10.30 a.m. on Thursday. This later time is proposed because it is expected that the other place will meet at 10.30 a.m. on Thursday and there may be some joint party meetings or discussions prior to that time which we will wish to attend. However, the immediate question relates to the hour of meeting tomorrow.
Question resolved in the affirmative.
– I present the report of the Senate Select Committee on the Container Method of Handling Cargoes together with the minutes of evidence taken by the Committee and move:
That the papers be printed.
Debate (on motion by Senator Bishop) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended
Bill (on motion by Senator Wright) read a first time.
– I move:
This Bill is intended to provide a complete revision of the copyright law in force in Australia. It will be the first such revision since 1912, when the British Copyright Act 1911 was extended to the Commonwealth by an Act of this Parliament, which simply provided for the extension of the British Act. Before explaining the substance of the Bill I should like to say a word or two about the scope of copyright law and of its practical importance to many people. Honourable senators will be aware that it is a prime purpose of copyright law to protect creative works so that authors, composers, artists and sculptors may, during the continuance of copyright protection, control the uses to which their works are put and get some return for the exploitation of their works. But it is not only creative works, as that term might commonly be understood, that are protected by copyright law. Any literary, dramatic, musical or artistic work which has some slight degree of: originality is protected, no matter how prosaic that work might be. For he purposes of the copyright, law, a road map or a collection of- classified advertisements in a newspaper receives the same protection as a great novel. Furthermore, the existing law extends copyright protection to gramophone records and the like. A record is protected as if it were a musical work. Copyright also provides the basis for the publishing industries. Without this protection, it would not be likely that large sums would be invested in the production of books and magazines or the publishing of music.
But it is also necessary to have regard lo those who use copyright material. The broadcasting and television industry, the record industry and much of the entertainment industry depend on being able to use copyright material on reasonable terms. Especially in the musical field, owners of copyright have so organised, through licensing organisations, that they are in a strong bargaining position. For example, the Australasian Performing Right Association Ltd claims to control the performing right in virtually all copyright music in Australia, lt is thus in a position to dictate the terms on which music may be performed in public. Honourable senators will therefore appreciate that any alteration in the existing copyright law will affect substantial economic interests which have been built up on the basis of that law. The interests affected will be the interests of both producers and users of material protected by copyright. The present Bill recognises that there are changes in the use of copyright material which have been brought about by changes in technology and the Government has been concerned to see that authors receive due payment for the use of their material. At the same time the Government recognises that existing practices and existing relations in industries which depend upon copyright material cannot be ignored. In framing this Bill, the Government has had due regard to interests which are often conflicting interests. In many cases, it has not been possible to satisfy completely all parties. Nevertheless, it is hoped (hat this Bill will be widely accepted as a reasonable compromise in cases where there are conflicting interests.
The present copyright law in Australia dates from 1911. lt is contained in the British Copyright Act 1911, which was applied in Australia by the Copyright Act 1912. I have already indicated that this is the first complete revision of the copyright law in Australia for 56 years. The British Act of 1911 was replaced in the United Kingdom by the Copyright Act 1956. Following the passing of that Act, an expert committee was established under the chairmanship of Sir John Spicer to report which of the changes made by that Act should be incorporated into Australian copyright law and what other alterations and additions, if any, should be made to the copyright law of Australia. Following the publication of the Spicer Committee’s report the Government received a large number of representations, all of which were carefully examined. This Bill is the result of an exhaustive review and careful assessment of ali of the interests affected by copyright law. I need hardly remind honourable senators of the substantial changes which have occurred since 1911, when our present copyright law was enacted. Radio, television, the cinema, the modern record industry, the tape recorder, new methods of printing, photographic methods of copying cheaply and in large quantities, satellite transmissions of radio and television programmes have all made significant changes in the exploitation of copyright material. In revising the copyright law, all of these changes have had to be taken into account.
Generally speaking, the Bill confirms the rights given to authors by the existing law and specifically provides that these cover the methods of dissemination of copyright material that have developed since 1911, such as broadcasting. [Quorum formed.] In doing so, the Bill will confirm in statutory form the decisions of the Courts which have, over the years, extended the provisions of the 1911 Act to cover new situations. But the Bill will confer a number of new rights, particularly in respect of broadcasts, cinematograph films and printed editions of books.
The changes in the law proposed by the Bill will enable Australia to become a party to recent international agreements on copyright. There are three international copyright conventions to which this Bill is relevant. The first, and oldest of the three, is the Berne Convention for the Protection of Literary and Artistic Works. This Convention, which came into force in 1887, has been revised a number of times. Australia is already a party to this Convention, but only in respect of the Convention as revised up to and including the Rome Revision in 1928. The Convention has since been revised on two occasions, at Brussels in 1948, and at Stockholm in 1967. The Bill would bring Australian law into conformity with what is required by both the Brussels and Stockholm Revisions. The second of the three Conventions to which I have referred is the Universal Copyright Convention. This Convention came into force in 1955. Australia is not yet a party to this Convention, but the Bill would make those changes to Australian copyright law necessary to enable Australia to accede to it. This would give Australians full reciprocal rights in the United States of America for the first time. The United States is not a party to the Berne Convention.
The third convention is the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, commonly known as the Neighbouring Rights Convention. That Convention, which came into force in 1964, requires certain rights to be given to record manufacturers, to broadcasters and to performers of musical and dramatic works. The present Bill will give effect to that Convention insofar as it relates to records and to broadcasts, it being appropriate to deal with these matters in a copyright Bill. The mutter of performers is dealt with separately in the United Kingdom by legislation of a different character, lt has not yet proved possible to devote attention to the task of examining what legislation should be enacted in Australia to give effect to those provisions of the Neighbouring Rights Convention relating to performers. I understand, however, that there is as yet no substantial problem caused by the broadcasting or recording of performances of musical and dramatic works in Australia without the prior approval of the performers themselves.
Although the changes in our copyright law which would be required to give effect to the Stockholm Revision have been incorporated in this Bill, the Government has not yet decided whether Australia will accede to the Stockholm Revision of the Convention. Some of the changes made in the Convention at Stockholm, which do not require legislation in Australia, but which give certain rights to developing countries to grant compulsory licences for the use in defined circumstances of copyright material, will need careful examination by the Government to see what effect they would have on Australian interests.
I turn now to an examination of the main features of the Bill. The Bill deals in the first place with copyright in literary, dramatic, musical and artistic works, which arc the traditional subjects of copyright protection. Generally speaking, this part of the Bill would not make any fundamental changes in the existing law. Secondly, the Bill deals with copyright in sound recordings, cinematograph films, broadcasts and published editions. This part of the Bill is largely new. Thirdly, the Bill proposes the establishment of a Copyright Tribunal with the function of arbitrating in disputes between copyright owners and users of copyright material.
The provisions relating to copyright in literary, dramatic, musical and artistic works are contained in clauses 31 to 83 of the- Bill. Clause 32 of the Bill sets out the circumstances in which a work is protected by copyright, lt must be an original work; that is to say, it must not simply be a work which is a replica of another. If it is an unpublished work, the author must have been a qualified person when the work was made. A qualified person is to be one who is an Australian citizen, an Australian pro tected person, or ordinarily resident in Australia. In addition, a work is to qualify for copyright protection if it is first published in Australia, or if, at the time it is first published, the author is a qualified person.
This differs from the existing law in a number of respects. At present, an unpublished work is protected if the author, at the time of making the work, was a British subject or was resident in a part of Her Majesty’s dominions to which the 1911 Act extended. But a published work is protected only if it was first published in a part of Her Majesty’s dominions to which the 19.1 1 Act extended. Thus the work of a British subject may cease to be protected if it is first published outside the Imperial copyright area. Clause 32 (3.) of the Bill provides that copyright is to subsist in a building situated in Australia, or in an artistic work that is attached to or forms part of such a building. This is to apply irrespective of the nationality or place of residence of the architect. This is a new provision, required by a change in the Berne Convention at Stockholm.
So far I have spoken only of copyright in relation to works by Australian authors or works first published in Australia or by Australians, lt is intended that cop.v right protection in Australia will be extended, by regulations to be made under the power conferred by clauses 184 to 188 of the Bill, to works made by, or first published in or by. nationals of member countries of the Berne and Universal Copyright Conventions and persons who are resident or ordinarily resident in those countries.
The rights which are to be conferred upon the owner of the copyright in an original literary, dramatic, musical or artistic work are set out in clause 3 1 of the Bill. The owner of the copyright in a literary, dramatic or musical work is to be given exclusive rights of reproduction, publication, public performance, broadcasting and communication of the work to subscribers to a diffusion service. A diffusion service is one in which transmission is effected by landline and not by broadcasting. Apart from the right of public performance, which is not applicable in (he case of an artistic work, the rights J have mentioned are also to be given in relation to artistic works. The owner of the copyright in a literary or dramatic work is also to have exclusive rights in respect of translations into other languages, and of the conversion of the work into another form as, for example, the conversion of a novel into a stage play. Generally speaking, the effect of 1 he clause is to spell out rather more fully than does the present law what these rights are. As I have already indicated, the Bill incorporates the effect of judicial decisions on the relevant provisions of the 1911 Act and, in particular, those decisions in which it has been held by the courts that the right of public performance given by the 1911 Act includes the right to authorise the broadcasting of a work.
The duration of copyright in original works will remain, with two exceptions, substantially the same as under the existing law. In general, the term of copyright in an original work will be the life of the author and 50 years thereafter. Where a literary, dramatic or musical work is first published posthumously, copyright will continue to subsist for 50 years after first publication. The same term is to apply to copyright in an engraving. Copyright in a photograph will continue for 50 years after first publication of the photograph.
These provisions involve only two changes in the existing law. In the first place, the term of 50 years is to be computed not, as al present, from the date of the relevant event, whether it be the death of the author or the publication of the work, but from the end of the year in which that event occurred. It is usually much easier to remember or to find out the year in which a particular event occurred than the actual date on which it happened. Secondly, the term of copyright in a photograph which, under the existing law, continues only for 50 years from the making of the original negative, will continue for 50 years from first publication. In other words, there will bc a perpetual copyright in an unpublished photograph.
The Bill generally follows the existing law and the British Act of 1956 in providing that the author is the owner of the copyright in a work. There are two exceptions to this rule. The first is that copyright in a photograph, portrait or engraving made under commission from another person vests in that person. If the photograph, portrait or engraving is commissioned for a particular purpose, however, the author is entitled to restrain its use for any other purpose. The second exception is that copyright in a work made by an employee other than a journalist in the course of his employment vests in his employer. In the case of a journalist, the proprietor of the newspaper or magazine by whom he is employed owns the copyright in his work for the purposes of newspaper publication or of broadcasting. The provisions relating to commissioned works and to works made in the course of employment are subject to any special agreement between the parties.
Clauses 36 to 39 of the Bill specify what acts constitute infringement of copyright in original works. These differ only in minor respects from the existing law. In the matter of infringement by importation, the Bill differs substantially from the recommendations of the Spicer Committee. The Committee recommended that a person should infringe copyright if he imported an article into Australia, otherwise than for his private and domestic use, if, to his knowledge, he would have infringed copyright by making it in Australia. This would have changed the existing law. under which importation is only an infringement if the articles concerned tire imported for sale or hire. Subsequent representations showed that it is the practice of many libraries to import books directly from abroad and of broadcasting stations and, in particular, the Australian Broadcasting Commission to import records of musical works from abroad for the purposes of broadcasting. There seemed to the Government to be no sufficient reason to disturb these existing practices. Accordingly, with one small modification, the present Bill will substantially continue the existing law.
The Bill provides for certain exceptions from the rights given to the copyright owner, lt will permit what is called fair dealing with copyright works for the purposes of research or private study, criticism or review and news reporting. It will permit librarians to use modern photocopying techniques for legitimate library purposes. Copyright material may be used in the course of classroom instruction. Short extracts from copyright works may bc included in anthologies for use in schools. It is not to be an infringement of copyright to use a radio or television receiver or a record player in the lounge of a guest house or the like. None of these uses of copyright materia) really affects the interests of the copyright owner. 1 come now to the making of records of musical works. Prior to the 1911 Act, a person who made a record of a musical work did not infringe the copyright in that work. The 1911 Act for the first time gave the copyright owner the right to authorise the recording of his music. Fears were expressed that this could result in the development of a monopoly in the record industry if one or two companies, by employing the best artists and entering into contracts with the leading composers, gained control of the record market. To avoid this, the 1911 Act provided a statutory licence to record a musical work once the work had been recorded anywhere within the imperial copyright area with the consent of the copyright owner. The record industry has developed on the foundation of this statutory licensing system.
The Spicer Committee recommended that this system continue, but with some significant changes. The first change was that the first making of records with consent should be restricted to Australia, so that the compulsory licence would come into operation only when there had been a previous making with consent in Australia. The record manufacturers complained that this change would narrow the scope of the system to the point where it would cease to apply to the greater part of their business.
The second change concerns the royalty payable on the making of records under the compulsory licence. Under the existing law, the royalty is 5% of the retail selling price on the record, with a minimum of the decimal equivalent of one halfpenny per track. The Spicer Committee recommended an increase in the rate to 61-%, and in the minimum to one penny per track.
After full consideration of the arguments that were put by both sides the Government came to the conclusion that some changes in the present law should be made. The most important changes relate to the conditions precedent to the operation of the statutory licence and to control by the copyright owners of the release of records made under the licence. There is to be no change in the rate of royalty from 5%, but the minimum royalty is to be increased to lc per track.
Under the Bill, it will be sufficient if records of a work have, with the consent of the copyright owner in the country concerned, been made in, or imported into, Australia or a member country of the Berne or Universal Copyright Convention for the purpose of retail sale. The statutory licence will also apply if a record of a work has been made, again with consent, in Australia or a Convention country for the purpose of making records for retail sale. A new provision has been introduced, under which the consent of the owner of the copyright in the musical work involved is necessary for the release of records made under the compulsory licence. The right to withhold consent to release will, with some exceptions, operate only for a limited period from the date on which records of the work were first released in Australia or, in the case of records first released overseas, from first release overseas. The exceptions relate to the case of musical works embodied in musical stage shows or musical films. The copyright owner is to be given an unlimited right to withhold consent to the marketing of records of these works. This would enable the owner of the copyright in a musical comedy work to prevent release on the Australian market of records of that work before the stage show comes to Australia and so prevent the music from becoming stale.
The royalty payable in respect of records made under the compulsory licence is to remain at 5% of the retail selling price of the record. I have already mentioned that the Spicer committee had recommended that the royalty should be increased to 6i%. The royalty payable in the United Kingdom has been fixed at 6i% since 1928 but this royalty is calculated on a different base from the royalty in Australia. The English royalty is calculated on the retail price of the record excluding purchase tax. The Australian royalty is calculated on the retail price of the record including sales tax. The copyright owners have argued that the royalty should be increased, having regard to changes in the value of money, the introduction of long-playing records and pre-recorded tapes, and changes in the marketing of records.
The extent to which these factors justify an increase in the rate of royalty is a matter which could only be determined after a proper examination of all of the relevant factors by a tribunal competent to take evidence on oath and to have that evidence tested by cross-examination. The Government has, therefore, come to the conclusion that there should be no increase in the rate of royalty until there has been a full investigation by the proposed Copyright Tribunal. The Bill provides the machinery for that investigation. The Bill will give a statutory right to broadcasting stations to record copyright works or to make films including copyright works for the purpose of broadcasting those works under certain defined conditions. Modern broadcasting practice often requires the prerecording of a programme for subsequent broadcasting. Clause 47 of the Bill will give a statutory right to a broadcasting station to record or to include in a film a copyright work which it is authorised to broadcast and to use that record or film for the purposes of fis own broadcasts without payment to the copyright owner. Such a record or film may be used for the purposes of broadcasting the work by any other broadcasting organisation which is authorised to broadcast the work, provided that a royalty is paid to the copyright owner in respect of the making of the record or film. The amount of the royalty is to be determined by agreement or, in default of agreement, by the copyright Tribunal. A record or film which is made in pursuance of these provisions may be retained for 12 months, when it must be destroyed or transferred to the archives of 1 he National Library.
Clause 107 of the Bill will permit commercial records of copyright works to be included in an ephemeral record made by a broadcasting organisation subject to the same conditions as apply in the case of the original work, except that the right to include an existing record in an ephemeral record is limited to a right to include that record in association with other matter. The jurisdiction of the Copyright Tribunal extends so that it may arbitrate where the owner of the copyright in a work and a broadcasting organisation wanting to record that work for broadcasting purposes in circumstances where the ephemeral recording provisions do not apply cannot agree on the royalty to be paid.
Clauses 74 to 77 of the Bill deal with the relationship between copyright in artistic works and registered designs. They should be read in conjunction with amendments to be made to the Designs Act by a Designs Bill which I shall be introducing into the Senate. Apart from some drafting changes to take account of criticisms which have been made of the relevant provisions in the 1956 Act, these clauses follow the scheme of the 1956 Act. (Quorum formed.) Adoption of that scheme was recommended by the Spicer committee. It would substantially change the existing law. At present, an artistic work which is produced for the purpose of being applied as an industrial design, or which is so applied at the time it is made, is not protected under the copyright law. Nevertheless, subsequent use as an industrial design of an artistic work which is not produced for that purpose will not deprive that work of copyright protection. Thus the public may not know whether an artistic work which has been applied as an industrial design may be freely used as such. It is desirable that there should be a reasonable degree of certainty in this respect. There are many circumstances in which an artistic work may find, or may be created especially for, industrial application. For example, a statuette, which is an artistic work within the meaning of that term in the copyright law, may be reproduced in quantity for use as a lamp base. Similarly, the drawing of a Donald Duck or a Mickey Mouse cartoon character may be reproduced as a children’s toy. Insofar as an artistic work may be applied as an industrial design it can be, if it qualifies for registration, registered under the Designs Act as a registered design. If it is so registered, then the proprietor of the design obtains a monopoly for a maximum period of 15 years in that design. Protection under the Copyright Act exists, however, for a much longer period.
The Bill adopts the approach that the use of a work as an industrial design should disqualify it from copyright protection in respect of its use as an industrial design after the expiration of 15 years from the time the articles incorporating that design first come on the market. But outside the field of application of an artistic work as an industrial design, copyright in that artistic work will still continue. Thus, if a cartoon character is used to decorate children’s plates, so to use it after the expiration of 15 years from the time those plates came on the market will not infringe any rights in respect of the artistic copyright in the drawing of the character, but to reproduce it in a magazine would be an infringement of copyright. These provisions will be explained more fully when 1 come to the Designs Bill. It is intended that these provisions would be reviewed when the Designs Act is next revised, lt is hoped to put this revision in hand as soon as the work on the introduction of the new copyright law is completed.
I turn now to those provisions of the Bill which provide for copyright to subsist in broadcasts, in cinematograph films, in sound recordings and in published editions. These provisions are to be found in clauses 84 to 113 of the Bill. These clauses involve substantial changes in the existing law. Broadcasts are not protected at all under the existing copyright law. Some protection against the use of broadcast material is given by the Broadcasting and Television Aci. Sub-clause (2.) of clause 9 of this Bill specifically preserves the operation of sections 120 and 121 of that Act. Under the Bill the owner of the copyright in a radio or television broadcast is given the right to control re-broadcasting of that broadcast. In the case of a television broadcast he is given the exclusive right to make a cinematograph film of the broadcast or a copy of such a film. In the case of a sound broadcast, or the sounds accompanying a television broadcast, the rights include the exclusive right to make a record of that broadcast or reproductions of that record. These provisions are contained in clause 87 of the Bill.
A cinematograph film is protected under the existing law in two ways. Inasmuch as an ordinary cinematograph film consists of a series of individual photographs, each frame is protected as an artistic work. But if the arrangement or acting form or the combination of incidents represented in a cinematograph film give the work an original character, the film is also protected as a dramatic work. The present Bill establishes a separate protection for cinematograph films. The rights given to the owner of the copyright in a cinematograph film are set out in clause 86 of the Bill. The copyright in a cinematograph film continues until the expiration of 50 years from the end of the calendar year in which the film was first published. For many purposes, ordinary cinematograph film and videotape are interchangeable. Thus a scene may be recorded by a television camera on videotape and the videotape later copied on to an ordinary cinematograph film. The incidents recorded may be seen either by viewing the videotape on a television screen or by viewing the cinematograph film on a cinema screen. The Bill therefore assimilates videotape to ordinary cinematograph film for the purposes of copyright protection and the term cinematograph film’ appearing in the Bill is defined as including videotape.
The provisions in the present Bill with regard to the protection to be given to sound recordings represent an attempt to reach a reasonable compromise between the conflicting claims of record manufacturers and of broadcasting organisations. While neither party would, 1 think, regard the present provisions as entirely satisfactory from its point of view, my understanding is that each is prepared to accept these provisions as a workable compromise. Under the present law, a record is protected as if it were a musical work. The present Bill creates a separate species of copyright in sound recordings. I would like to make it clear that the term ‘sound recording’ as used in the Bill docs not denote the physical object, whether it be disc or tape, but the aggregate of the sounds which are embodied in that physical object. The importance of this distinction is that copyright is to depend on the making of the sound recording, that is, the making of the original master or tape. The making of records from that original has no significance in determining whether there is copyright in Australia in the original sound recording.
I should also explain that the complete scheme of protection of sound recordings which is intended does nol appear from the provisions of the Bill. Some of it appears in the Bill; other parts of the scheme will be contained in regulations to be made under the Bill, under which recognition will be accorded to sound recordings produced in other Convention countries. It is intended that there shall be copyright in all sound recordings made in Australia or in a member country of the Berne or Universal Copyright Conventions, or made by a national of, a resident in, or a company incorporated in, Australia or a Convention country. There will also be copyright in a sound recording first published in Australia or in a Convention country. For this purpose, ‘first published” has the extended meaning given to it by clause 29 (5.) of the Bill; that is. a work is regarded as being first published in one country notwithstanding that it was previously published not more than 30 days before in another country.
Generally speaking, copyright in a sound recording comprises the rights set out in clause 85 of the Bill. These are the right to authorise the making of records embodying the recording, the right to cause the recording to he heard in public and the right to broadcast the recording. But if a sound recording is protected by virtue only of the fact that it has been first published in Australia or in a Convention country, the copyright in that recording is not infringed by causing it to be heard in public or by broadcasting it. Furthermore, the broadcasting right in a sound recording made in a country which does not itself give a broadcasting right in sound recordings will cease to exist in Australia at the expiration of a period to be prescribed from the date when the recording was first published overseas or, if the recording is first published in Australia, from the date of its publication in Australia. The effect of this provision will be that a sound recording first made in a country such as the United States of America, which does not give a broadcasting right in sound recordings, may be freely broadcast after records have been released in Australia or after the expiration of a limited period from the time those records are released overseas. The particular period has yet to be worked out; it is contemplated that it will be of the order of 6 to 8 weeks. This will be sufficient, I believe, for a record company to decide whether it wishes to put a particular record on the market in Australia. This limited period will protect the record manufacturer and the owner of the copyright in the musical work involved from any overexposure of the record to the public by excessive broadcasting of the work before it is on the market in Australia.
The scheme will also provide that, in the case of a sound recording in which the broadcasting right continues, permission from the owner of the right to broadcast the recording will not be necessary after records embodying the recording have been released in Australia, or after the expiration of the prescribed period from the release of records overseas, whichever is the earlier. Nevertheless, a royalty must be paid by the broadcaster to the owner of the copyright in the sound recording. The royalty will be such as is determined by agreement or, in the absence of agreement, by the Copyright Tribunal. In the case of a commercial radio station, the Tribunal may not fix an amount payable in respect of the broadcasting of records by that station which exceeds 10% of the gross annual revenue of that station. In the case of the broadcasting of records by the Australian Broadcasting Commission by means of its radio broadcasts, the Tribunal may not fix an annual royalty which exceeds one-half cent per head of population.
These limits have been set to allay fears expressed by both the commercial broadcasting stations and the Australian Broadcasting Commission that the payment of royalties for the broadcasting of records could impose a substantial financial burden on them. The limits have been fixed in the light of special circumstances now existing in Australia in relation to the broadcasting of records and are not intended to imply that any particular royalty or rate of royalty is appropriate for the broadcasting of musical copyright works. The Bill establishes a completely new category of protection for published editions. Modern printing processes have made it easy for a printer to copy, by photographic means, a published edition of a work. A publisher who goes to trouble and expense to produce an edition of a work which is itself out of copyright has no protection under the existing law against a printer who photographically reproduces his edition. What is proposed in clause 88 of the Bill is to give a publisher the exclusive right to make, by means including a photographic process, a reproduction of a published edition of a literary, dramatic, musical or artistic work.
I come now to those provisions of the Bill which establish the Copyright Tribunal and define its functions. Briefly stated, the main functions of the Tribunal will be to arbitrate in disputes between owners of copyright and persons who wish to make public performances and broadcasts of copyright works. The jurisdiction of the Tribunal is also to extend to arbitrating in disputes concerning the royalty to be paid in respect of the making of records or films of a work for the purpose of broadcasting it and concerning the royalty to be paid to the owner of the copyright in a sound recording for the broadcasting of that recording or for causing it to be heard in public. As has already been indicated, the Tribunal will also have the function of conducting public inquiries into the statutory royalty payable in respect of records made under the compulsory licence.
All parties have welcomed the proposed establishment of the Copyright Tribunal. It is intended that the Tribunal will have a sufficient status to ensure it the confidence of all parties. The qualifications required for appointment as a member of the Tribunal are substantially the same as those required for appointment as a judge of the High Court or the Commonwealth Industrial Court. The position of the Crown is more clearly defined under the Bill than under the present law. The Crown will continue to have copyright in respect of works produced or published by it. The Bill puts beyond doubt that the Crown is bound by the copyright law. Provision is made, however, for the use of copyright material for the services of the Commonwealth or the States upon payment of compensation to the owner of the copyright.
The provisions of Part IX of the Bill are new. Briefly stated, they provide for the recognition of what is commonly described as the ‘droit moral’, or the moral right of the author in the integrity of his work. A duty is to be imposed not to represent the work of one person as the work of another, or the altered work of an author as his unaltered work. A duty is also to be imposed not to represent a reproduction of an artistic work as being made by the author of the work if he did not make it. The duty not to represent the work of one person as the work of another is to extend for the whole term of the copyright in the work; after the author’s death the duty is owed to his executors.
The Stockholm revision required member countries to recognise the appointment by a member country of a person to represent, or to act as, the owner of the copyright in a work of folklore. A provision to give effect to this obligation is contained in sub-clause (4.) of clause 184 of the Bill.I think that all I need say about the transitional provisions is that they are based on the proposition that, unless specific provision is otherwise made, existing works are brought under the provisions of the proposed law. This is what was done in the 1911 Act and in the 1956 United Kingdom Act.
This Bill represents a significant milestone in Australian copyright law. It is the first major change in our copyright law that has been made for a long time. It contains a number of distinctive features dealing with copyright problems which are peculiarly Australian. I have already indicated the hope that the Government has, in this Bill, achieved a reasonably satisfactory compromise in areas where there are conflicting interests. If and when the Bill becomes law, the Government will watch carefully the effect of the Bill on the operations of those who are affected by it, so that if it appears that further changes need to be made to the law, those changes can be made.
I referred at the beginning of this speech to the changes in technology which have occurred since the 1911 Act came into operation. Significant changes in technology which affect the operation of the copyright law are still continuing. At the Stockholm conference last year, Mr Kaminstein, the Registrar of Copyrights in the United States of America, forecast that there might need to be another meeting of the member countries of the Berne Convention within the next 10 years to take account of the effect of copyright law on the widespread introduction of computers for data processing and information storage and retrieval. It is as yet too early to see in what ways changes will need to be made in the copyright law to accommodate these new developments or what other developments in communications will require other changes to be made. These are matters for the future. I commend the Bill to the Senate.
Debate (on motion by Senator Wheeldon) 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 second time.
This Bill is a companion Bill to the Copyright Bill which I have just introduced. In the course of my second reading speech on the Copyright Bill I explained that that Bill traces out a new borderline between copyright protection and industrial design protection. Honourable senators will appreciate that many artistic works can serve as the basis for an industrial design. A painting of a vase of flowers may be applied as a design to chinaware. A statuette may serve as the design for the base of a lamp and be reproduced in quantity for this purpose. It is the function of the designs law to provide a system of protection for industrial designs. That system differs from the protection under the Copyright Act in four ways that are relevant to the present problem.
In the first place, it depends on registration. No protection is given to a design under the Designs Act unless it has been registered. Registration is not a prerequisite for protection under the copyright law. Secondly, a design may not be validly registered unless, at the date registration is applied for. the design is both new and original. A work is protected by copyright, notwithstanding that it is not new. so long as it is not derived from a previous work. Thirdly, design registration confers a monopolytype protection, so that a person who uses a registered design without authority from the owner, commits an infringement whether he copies the registered design or derives the design quite independently. Fourthly, copyright lasts for a longer period than design registration. Copyright in an artistic work lasts for the lifetime of the author and 50 years thereafter: design registration lasts for a maximum of 15 years.
A person who makes an artistic work, intending to use it as an industrial design, gets no copyright protection under the existing law. But if the work is not made for this purpose but is subsequently applied as an industrial design, he does not lose the copyright protection which attached to the work when it Was made. This system is unsatisfactory in a number of respects. In the first place, the author of an artistic work made for the purpose of applying it as an industrial design has no copyright protection, even though registration of the work as an industrial design may not cover the whole field of possible application of the work. Secondly, third parties cannot easily ascertain whether an artistic work which has been applied as an industrial design is subject to copyright protection, since this may involve an inquiry into the intention of the author of the work when it was made.
A different approach to this question of the borderline between copyright and industrial design is now proposed. In summary, it is intended t! t the use as an industrial design of an artistic work will not affect the protection of that work under the Copyright Act for purposes other than the use of that work as an industrial design. If the owner of copyright in an artistic work applies it as an industrial design, copyright protection will cease in respect of the field in which the work is applied as a design. At the expiration of 15 years from its first use as a design, copyright protection will cease altogether in respect of the application of that work to any articles for which it might have been registered as an industrial design.
If an artistic work is to bc applied as an industrial design, and the author of the work wishes to have protection in respect of that use of his work, he should obtain registration under the Designs Act. The purpose of this is twofold. In the first place, design protection lasts only for 15 years from the date of first registration. The limited protection given to industrial designs is intended to stimulate inventiveness in the design field and the development of new designs. Secondly, it is intended that the public should be able to know, by searching the Register kept under the Designs Act. what may or may not be used as an industrial design.
A design can only be validly registered under the Designs Act, if it has not been published before the date of registration. Unless some change is made in the Designs Act, therefore, the new copyright law would put the owner of the copyright in a published artistic work in a dilemma. If he applied his work as an industrial design, he would lose his copyright protection in the field in which it was so applied. On the other hand, he could not register it as an industrial design because it had become known to the public.
This Bil! provides the following solution to this dilemma. The owner of the copyright in an artistic work may register it as an industrial design under the Designs Act. The validity of his registration will not be affected by any previous publication of the work, but he must apply to register it before he uses it as an industrial design. If he does not do so, he cannot get a valid design registration. Furthermore, so that the copyright owner may obtain maximum protection under the Designs Act in the application of his work as an industrial design, the Bill also provides that the registered proprietor of a design may subsequently register it in respect of additional articles. The subsequent registration, however, endures only during the life of the original registration.
These provisions could lead to the situation where design registration would last beyond the period of copyright protection. For example, a photograph is protected under the Copyright Act for 50 yearrs from first publication. If that photograph were registered under the Designs Act 40 years after publication for application to plates, the design registration could last for 15 years, taking it beyond the lifetime of the copyright in the photograph. Clause 8 of the Bill therefore provides that in such cases the design registration is deemed to expire when the copyright expires.
The Bill makes a third change to the present designs law. It is intended to exclude from the registration under the Designs Act designs for articles which are primarily literary or artistic in character. Clause 5 of the Bill empowers the making of regulations to provide for this exclusion. It is intended to exclude from registration under the Designs Act works of sculpture, other than casts or models which are used or intended to be used for patterns to be multiplied by the industrial process, wall plaques and medals and printed matter primarily of a literary or artistic character such as greeting cards, postcards, stamps and the like. The purpose of excluding these articles from design protection is to make it clear that copyright protection is not lost by reproduction of an artistic work in these fields. I commend the Bill to the Senate.
Debate (on motion by Senator Wheeldon) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– I move:
That the Bill be now read a second time.
This Bill seeks Parliament’s approval of a supplemental agreement between the Commonwealth and the State of Queensland to permit additional financial assistance of up to $600,000 to be made available to the State in respect, of the CollinsvilleTownsvilleMount lsa railway project. Under the agreement approved by the Railway Agreement (Queensland) Act 1961. the Commonwealth undertook to provide the State with loan finance up to a limit of $40m to meet two-thirds of the cost of improving this railway. The project was completed in 1965 at a cost well below the original estimate of $60m, and the Commonwealth was called upon to provide $34. 5m. In accordance with the terms of the agreement, repayment of the loan and the payment of interest commenced on 30th June 1965 and will extend over a period of 20 years.
Certain claims against the State by one of the contractors engaged on the project had not been settled by 30th June 1965. Because of the terms of the agreement, further assistance could not be provided to the State under the agreement after that date. Following subsequent arbitration proceedings, the claims were settled and the State has required that a further advance of approximately $600,000 be provided by the Commonwealth in respect of them. The claims related to expenditure on work which undoubtedly would have been admissible under the .1961 agreement, and would therefore have qualified for Commonwealth assistance had settlement of the claims been possible by 30th June 1965. We consider that the delayed settlement of the claims should not deprive the State of Commonwealth financial assistance in respect of this expenditure. The supplemental agreement annexed to this Bill extends the original agreement to provide for a further advance of up to $600,000 to the State, and for the State to repay this advance by 31st December 1984, the date on which the repayment of amounts advanced under the original agreement will be completed.I commend the Bill to the Senate.
Debate (on motion by Senator Cavanagh) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
That the Bill be now read a second time.
This Bill seeks Parliament’s approval of the Commonwealth’s entering into an agreement with Tasmania to provide financial assistance to the State towards the cost of carrying out an accelerated programme of hydroelectric development based on the resources of the Gordon River area in the south west region of the State. The works comprising the programme include the completion of works already under way in the lower Derwent and Mersey-Forth areas, the construction of a 120 megawatt thermal station in the vicinity of Bell Bay. and the carrying out of stage1 of the multi-stage Gordon River power development.
In April last year the Tasmanian Premier asked the Commonwealth Government to provide financial assistance for the purpose of carrying out the undertaking. At that time we were advised that, on the basis of forward planning bythe main industrial enterprises operating in Tasmania, an investment programme totalling $2 12m over the 5-year period ending on 30th June 1972 would be necessary to cater for the expanding electricity demand in the State. We were advised also, however, that the State faced a difficult financing problem in relation to the overall programme. The problem is essentially one of financing the abnormally heavy investment expenditures required during the early years of the construction programme before any electricity can be produced from it. This is not an unusual feature in projects of this nature, and the Commonwealth Government accepted the Premier’s contention that, without some Commonwealth financial assistance, the State would be unable to finance the temporary ‘hump’ in investment by the HydroElectric Commission which the overall programme would require.
The State Government calculated that it could find approximately $165m towards the $2 1 2m 5-year programme. This left a gap of$47m, and it. was in respect of this short-fall that the State approached the Commonwealth for assistance. To bridge this gap, which will occur mainly in the first 3 years of the programme, the Commonwealth indicated that it would be prepared to lend the State such amounts, up to an overall maximum of $47m, as maybe necessary to complete the programme of development in accordance with the construction timetable. The Commonwealth’s offer was on the understanding that the State itself would take any steps which seemed appropriate to ensure that the amount to be contributed from its own resources would be as large as reasonably practicable.
As indicated in the proposed agreement attached to the Bill, the Commonwealth’s assistance will be of a temporary or bridging character, in line with the nature of the State’s financing problem. The loans made by the Commonwealth to the State will be repayable half-yearly over a period of8 years, the first instalment to be repaid on 15th December 1972, and the last instalment on 15th June 1980. However, there is provision in the proposed agreement for the State to seek the deferment of any of the instalments falling due during the first 3 years of the repayment period, if a financing problem arises in this time. In this case, the repayment period would be extended beyond 15th June 1980 by the number of half-yearly instalments deferred.
The proposed agreement providesthat interest on the Commonwealth loans to be made to the State will be payable halfyearly on 15th June and 15th December at the maximum rate authorised by the Australian Loan Council, at the date each loan is made, for private borrowings by semigovernmental authorities for a period of 8 years. This is the rate which the HydroElectric Commission would have to pay if it arranged the finance itself. Also included are the usual provisions relating to matters such as arrangements for making payments to the State, the supply of audited information about expenditure, and so on.
In conclusion, I should like to say that the Commonwealth is pleased to be able to assist Tasmania in bringing this programme to fruition. The State is convinced of the economic soundness of the project and, following an independent assessment carried out by the Snowy Mountains Hydro-electric Authority last year with the concurrence of the State Government, we have been advised- that the State’s plans are well conceived and based on reasonable cost estimates. In these circumstances we have accepted the State’s views as to the contribution which the completion of the programme can be expected to make to the development of the State’s economy generally. I commend this Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Scott) read a first time.
– I move:
That the Bill be now read a second time. Honourable senators will recall a Ministerial statement made in this place on the 2nd November 1967, in which details were given of the Government’s decision to make available financial assistance to the State of Western Australia for stage 2 of the Ord River irrigation project. It was indicated at that time that details of the financial arrangements were to be discussed with the State. These discussions have now taken place and, as announced by the Treasurer (Mr McMahon), agreement has been reached with the State on the arrangements to be adopted.
The purpose of the Bill before the Senate is to seek the approval by Parliament of an agreement between the Commonwealth and the State of Western Austrafia relating to the provision of financial assistance to the State totalling $48. 18m for the construction of that portion of stage 2 of the Ord irrigation project which lies within Western Australia. The financial assistance is to be provided on the basis of a nonrepayable grant for the construction of a dam, and an interest bearing loan in respect of irrigation works. Stage 2 of the Ord irrigation project comprises a major storage dam on the Ord River, about 30 miles upstream from the existing diversion dam, and associated irrigation works capable of supplying water for the development of a further 150,000 acres of the irrigable land of which about 100,000 acres lie within Western Australia. The storage capacity of the reservoir will be about 4.6 million acre feet.
The Ord scheme is a large project in an isolated northern region, the first stage of which was completed in 1965. The Commonwealth Government has already contributed slightly more than $12m towards stage 1 of the project as grants under the Western Australia Grant (Northern Development) Acts of 1958 and 1959 and the Western Australia (Northern Development) Agreement Act 1963. The State has also made a direct contribution of about $8m to the cost of developing the area associated with the project. Prior to its decision to make financial assistance available, the Commonwealth had before it, on several occasions, requests from the Western Australian Government for financial assistance to proceed with the second stage of the project. On those occasions the Government considered that, in view of a number of uncertainties which existed in regard to the future prospects of the scheme, the wisest course of action was to wait until further information came to hand and further experience had been gained from the pilot project comprising stage 1 of the scheme.
As indicated in the Ministerial statement of November 1967, there have been favourable developments in regard to cotton growing. Satisfactory results have been achieved with a greatly increased area of stub cotton, which can be grown at a lower cost than normal plant cotton. Trials at the Kimberley Research Station and on private farms with a new cotton variety, Stoneville 7a, look promising and it, together with other new varieties, should enable farmers to obtain higher yields in the future. Cotton production in Australia has expanded rapidly in recent years, reflecting both increased yields and acreages. The average yields in northern New South Wales and the Ord River area have more than doubled since commercial production commenced several years ago. lt is reasonable to expect that as better varieties are developed and as farmers gain experience and adopt improved cultural practices yields will continue to improve although not to the same extent as in the past.
In addition to cotton, the prospects for commercial production of grain sorghum appear promising. Sorghum is being grown on a small commercial scale this season and farmers are already planning to grow increased areas. Large scale growing, bowever, will not be possible until additional water is available following completion of the main dam, as all the present supply is now committed. In a recent examination of the market for grain sorghum in Japan, the Bureau of Agricultural Economics concluded that imports of feed grains by Japan could be expected to continue to rise sharply and Australia would have reasonable prospects of obtaining a share of this market. There are also prospects of developing commercial production of a high quality rice, in the region, particularly with the advent of new varieties becoming available from the International Rice Research Institute in the Philippines and with the recent successes with insecticides in the control of stem borer.
Development of alternative crops such as these will provide greater flexibility in farm programmes. Even though we now have more than 20 years of investigation and research behind us we would be the last to claim that we know all the answers. We do feel, however, that enough is known to permit us to press on confidently with this project which is of great significance to the development of northern Australia. Irrigation from the diversion dam commenced in 1963 when more than 1,400 acres were planted to cotton by the first five commercial farmers. At the present time thirty farms of approximately 650 acres in area, in addition to the 2,400-acre former pilot farm, are in operation. About 12,000 acres are devoted to cotton this season and harvesting is due to commence about this time.
The commercial possibilities of a number of other crops and tropical pastures are being investigated al the Kimberley Research Station. The Research Station on the Ord River has been jointly financed and staffed by the Commonwealth and Western Australian governments since its establishment in 1946. Currently the Commonwealth provides half of the expenditure of the Station up to a maximum of $130,000 a year. In addition the Commonwealth Government, through the Commonwealth Scientific and Industrial Research Organisation and the Western Australian Government, through it’s Department of Agriculture, supply salaried officers to the Station without cost to the Station’s vole. The Station is concerned not only with providing scientific and technical information and undertaking research to establish successful irrigation farming in the Ord area, but also with the accumulation of information of value for the development of agriculture in other similar irrigable areas in northern Australia, and with the study of the. possible benefits of irrigated agriculture to other forms of primary production, particularly the cattle industry.
The local cattle industry is expected to benefit from the irrigation development in two ways - through the development of a more intensive beef producing industry in and adjacent to the irrigation settlement, and through the use of protein rich byproducts such as cotton seed to reduce mortality in breeders and calves by selective supplementary feeding. The realisation of these developments will depend upon the response of the regional pastoral industry. With the upgrading of the Kimberley roads under the beef roads programme, the influence of relatively attractive beef prices in recent years, and the recent evidence that a significant number of cattle producers are interested in upgrading their herds and improving management’ standards, it is reasonable to expect that integration will take place between the irrigation area and the cattle industry.
One other matter which has been raised in relation to the Ord project and on which I would like to comment is the possibility of siltation of the storage. The Ord River carries a high silt content estimated in 1 964 at about 12,500 acre feet per annum, which if unchecked could affect the active storage capacity of the dam over a period of years.
The problem of high silt content was largely due to severe erosion aggravated by overstocking in past years along the main water courses. However, regeneration measures costing $100,000 a year have been pursued during the last 7 years by the State authorities. The Ord River catchment above the dam site has an area of about 18,000 square miles. The most serious erosion hazard, however, is confined to an area of 1,450 square miles of which about 1, 200 square miles have been resumed from pastoral leases, and these areas have been cleared of stock, fenced and successfully resceded.
I turn now to the Agreement which generally follows the pattern of measures granting financial assistance to the States. Clause 1 is a machinery clause covering definitions used throughout the Agreement. Clause 2 of the Agreement sets out details of the financial assistance to be provided, while the nature and extent of the works arc described in the Schedule to the Agreement. Part 1 of the Schedule describes the works for which a non-repayable grant is to be provided and Part II of the Schedule describes those works for which Commonwealth assistance is to be provided as a repayable loan.
Clauses 3 to 7 relate to the making of payments, advances and repayments in connection with the works and are generally of a machinery nature. In clause 6 provision is made for repayments to be spread over 15 years with repayments to commence 9 years and 6 months after the end of the financial year during which payment was made by the Commonwealth. Clauses 8 to 13 set out requirements in connection with the implementation of the project and cover the provision of information requested by the Commonwealth, ministerial approval of the works and variations thereof, and ministerial approval of contracts in excess of $500,000. Provision is also made for representation of the Commonwealth on the already established Ord Project Co-ordinating Committee.
The usual provisions covering the furnishing of statements to the Treasurer by the State Auditor-General relating to the works carried out under the Agreement are set out in clause 14. Clause 15 deals with the recognition of notices, requests and other communications given or made under this Agreement.
As I have already mentioned, the Commonwealth has been closely concerned with developments in the Ord River area since 1946 when it established - jointly with the Government of Western Australia - the Kimberley Research Station. In addition, the Commonwealth through its assistance over a number of years facilitated the successful implementation of stage 1 of the project. The Ord River scheme has pioneered one of our last frontiers. The Commonwealth Government’s confidence in its future is measured in its financial support of the scheme. We can develop our remote area given sound research and thorough investigation. In the Ord River project we see a catalyst for further development in the north. I commend the Bill.
Debate (on motion by Senator Willesee) 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 second time.
The purpose of this Bill is to vary the salaries for the holders of the statutory offices of. Senior Commissioner, Commissioners and Conciliators of the Commonwealth Conciliation and Arbitration Commission. These salaries were last adjusted by amendment of the Conciliation and Arbitration Act in November 1964 whereby the salary for Senior Commissioner was fixed at $10,400, Commissioner $9,400 and Conciliator $8,400. In the past it had been the practice to review these salaries in association with the salaries of Second Division officers of the Commonwealth Public Service and certain statutory officers, the last such review resulting in salary increases effective as from 23rd December 1966. No adjustments were then made, however, to the salaries of the members of the Conciliation and Arbitration Commission to whom I have referred. This could not be done without legislation. It will be remembered that on 31st October last year the Senate rejected a proposal to have these salaries determined by the GovernorGeneral. The Senate thought that they should continue to be fixed by Parliament.
This Bill, therefore, provides for the retrospective payment, as from 23rd December 1966, of those salaries which would have been paid in line with the adjustments then made to officers of the Second Division of the Commonwealth Public Service and statutory officers covered by the review made at that time. The effect of this is to provide payment for the Senior Commissioner at the rate of $11,250 a year, $10,250 for the Commissioners and $9,050 for the Conciliators. The Government, however, has given further consideration to the determination of salaries for these statutory offices because it had become increasingly evident that the responsibilities of the holders of these offices are of such a nature that an alignment with the generality of positions in the Second Division of the Commonwealth Public Service is no longer appropriate.
There is no need for me to stress the ciritical significance for the community and the economy as a whole of the decisions required of the Senior Commissioner and the Commissioners and the important part they, and the Conciliators, play in influencing the industrial relations climate in which industry operates. Clearly it must be possible to attract to the ranks of the Commission mcn with the necessary experience, maturity, integrity and established competence in what is a most complex and difficult field of work, lt is for these reasons that the Bill now before the Senate proposes a salary of $12,850 for the senior Commissioner, $11,850 for the Commissioners and $9,650 for the Conciliators, to become operative as from the date of assent of this Bill. I am confident that the provisions of the Bill will be welcomed by all senators and all those with a concern for the operation of our conciliation and arbitration system. 1 commend the Bill to the Senate.
Debate (on motion by Senator Bishop) 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 second time.
This Bill proposes a further extension for the next 3 financial years of unmatched capital grants to State governments for technical training. As in the past 4 financial years, the grants will be at an annual level of $I0m, a total of $30m. They are intended to facilitate the training of young men and women pursuing trade and certificate courses in technical colleges and trade schools and those pursuing courses at agricultural colleges by providing the capital facilities by way of buildings and equipment for their training.
Under existing legislation a total of $40m has been made available over the past 4 financial years, and as a result, there has been a substantial improvement in technical college facilities in the States. The lists which I have circulated give details of the use the States have made of the Commonwealth grants in providing facilities in accordance with the proposals agreed between the Commonwealth and each State. As the grants have been substantial in relation to the States capital expenditure on technical training, the improvement in facilities has been very great.
The States initially found difficulty in mounting construction and equipment programmes of the size made possible by the Commonwealth grants. Funds have now been available for 4 years and this problem has been almost completely overcome. The Minister has been assured that all but $1.6m of the $40m which will have been available to 30th June 1968 will be applied before that date to the construction and equipping of technical colleges and trades schools and that in three of the six States the whole of the Commonwealth grant will be spent before that date. In the three remaining States money which will be advanced before 30th June 1968 under the existing legislation will be applied in the first months of the 1968-69 financial year to projects which have already been agreed to and are now under way.
We are proposing the extension of these grants for technical training in response to firm indications from State Ministers for Education that there is a continuing need for the capital facilities. The Minister for
Education and Science (Mr Malcolm Fraser) has already received general proposals which will account fully for the amount of $30m, which the Bill proposes should be available over the next 3 financial years. Some examples of the States’ proposals will give an indication of the further substantial improvements in technical training facilities which will be made possible by the extension of the scheme.
In New South Wales, the Commonwealth grants will be used to continue the improvement of facilities at Randwick and Bankstown in the Sydney metropolitan area, and in the country at Orange. Construction and equipment programmes will also be continued under the scheme at Hawkesbury, Wagga and Yanco Agricultural Colleges. In Victoria, the major projects proposed include the extension to the William Angliss Food Trades School and the Northern Suburbs Motor School and extensions at technical colleges at Bendigo, Warragul and Castlemaine. In addition there will be further assistance for agricultural education in Victoria. In Queensland, colleges proposed for assistance over the next 3 years include Yeronga, Ipswich, Ithaca. Rockhampton and Cairns and the Longreach Rural Training School. In South Australia, further assistance will be available for trade and certificate courses at the South Australian Institute of Technology and Roseworthy Agricultural College, extensions will be built at a number of trade schools and technical colleges, and there will be a further improvement in the equipment available for technical training. In Western Australia, major projects are proposed for Bentley Technical School and Bunbury Technical School. In Tasmania, expenditure is proposed for the completion of extensions at present under way at Hobart and for the beginning of new technical colleges at Devonport and Burnie.
As I have mentioned, the Bill proposes that grants to the States for technical training over the next 3 years will continue at the previous level of $10m annually. They are allocated in the Bill to the States in proportion to the total State population figures obtained from the 1966 census, as announced by the then Minister for Education and Science on 8th October 1967.
In considering the proposals submitted by the State Ministers for inclusion in this further extension of the scheme the Minister has suggested to them that the Commonwealth grants over the next 3 financial years should not result in any reduction in the States’ own capital expenditure on technical training facilities. The State Ministers have let the Minister know that they understand and accept this condition.
Commonwealth grants for technical training already have increased greatly the facilities available in Australia for training in skills vitally necessary at the trade and certificate level. Further improvement in these facilities still is required at technical colleges and trade schools and the extension of the technical training grants for a further 3 years will significantly assist this improvement. I commend the Bill to the Senate.
Debate (on motion by Senator Dame Dorothy Tangney) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Scott) read a first lime.
– I move:
This Bill seeks the approval of the Parliament to an agreement between the Commonwealth and the State of New South Wales embodying arrangements for a Commonwealth contribution of $10m towards the cost of improving the existing railway between Parkes and Broken Hill. The Bill also seeks the necessary authorisation of expenditure for the purposes of the agreement.
The circumstances in which the work became necessary are well known and I do not propose to discuss them in detail. In brief, the existing railway between Parkes and Broken Hill, although of the 4 feet 84 inches standard gauge, is a pioneer line of light construction carrying relatively light traffic. When the current rail standardisation projects are completed they will join with the Parkes-.Broken Hill railway to link all the mainland States by standard gauge railways. When this happens, towards the end of next year, there will be dramatic changes in traffic, more so over the Parkes-Broken Hill section than the others. Fast express interstate passenger and freight trains will be introduced. Initially two passenger and seven freight trains will run each way each week in addition to the present traffic. It is confidently expected that the traffic will steadily increase, and probably double in 3 years.
It would be quite inappropriate that this new traffic be subject to the load and speed limits that would be necessary if it ran over the present railway. The New South Wales Government, while recognising the need for improvements, felt that expenditure of the order necessary was outside its capacity in the time available and sought Commonwealth financial assistance for the improvement works. The Government agreed to assist with a direct grant of $10m. This form of assistance is different from that given in the case of the rail standardisation projects for the very good reason that the work is not standardisation. In fact, the terms of the assistance overall are not quite as favourable as those accorded to the standardisation projects, but the Government believes them to be appropriate in the circumstances and they have been acccepted as such by the New South Wales Government.
The work will be done by the New South Wales Railways, and in fact they already have commenced work using temporary financing arrangements. The present programme is expected to cost about $11m, and of this the Commonwealth will reimburse the State up to a maximum of $10m. All costs in excess of $10m will be contributed by the New South Wales Government. In addition to the current programme there will be further expenditure on signalling improvements and, at a later stage again, it will be necessary to provide new rails with a weight of at least 94 lb per yard as the existing 80 lb per yard rails reach the end of their useful life. This will be done progressively over the next 8 or 10 years and will cost a further $12m. All this additional expenditure will be met by the State. As honourable senators will see, the total cost’ of all these works is expected to be at least $25m, of which the Commonwealth contribution is limited to the maximum of $10m already mentioned.
The detailed terms of the agreement follow the usual lines for projects of this nature and include provisions to ensure the necessary co-operation between the Commonwealth and the State in respect to establishment of standards, the planning and supervision of the work and the control and audit of expenditure. I must say that the State authorities already have afforded every consideration and co-operation to the Commonwealth officers concerned, and we are very favourably impressed with the way they have set about the work, using their own finance in the interim in anticipation of reimbursement by the Commonwealth in terms of the proposed agreement. I commend the Bill to the Senate.
Debate (on motion by Senator Mulvihill) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Scott) read a first time.
– I move:
That the Bill be now read a second time.
Honourable senators will recall that the late Prime Minister, Mr Harold Holt, made a statement in another place in November last, outlining the Government’s intention to provide financial assistance for a further programme of beef road construction in Queensland, Western Australia and South Australia. The purpose of the Bill now before the Senate is to seek its approval to the provision of this assistance.
The Commonwealth, in conjunction with the State governments concerned, has been continuously associated with beef road development in northern Australia since 1961. Under legislation enacted in 1961, 1962 and 1966 the Commonwealth has provided an aggregate of $28. 9m for this purpose to the Governments of Queensland and Western Australia covering the period up to 30th June 1967. This earlier legislation does not authorise payments to the States after that date.
For the information of honourable senators, I will summarise the main particulars of (he assistance provided by the Commonwealth up to 30th June 1967. Queensland: A total of $20.5m has been provided, of which Si 1.95m was a direct grant and $8. 55m was in the form of an interest bearing loan. Western Australia: A total of $8. 4m has been provided as a direct grant subject to matching expenditure by the State on roadworks north of the 20 degrees parallel of south latitude.
By 30th June 1967, more than 600 miles of roads in Queensland had been completed and work was in progress on a number of additional roads aggregating about 600 miles. In Western Australia, the State has concentrated work on progressive upgrading by stage construction of some 1,300 miles of roads in the Kimberley region. As well as providing financial assistance to the Governments of Western Australia and Queensland, the Commonwealth itself has engaged in a programme of beef road construction in the Northern Territory and by 30th June 1967, it had expended $ 10.4m on the construction of roads totalling nearly 1,100 miles, of which about 800 miles had been completed at that date, lt will be seen that the investment by the Commonwealth in beef road construction in northern Australia from the commencement of the scheme in 1961 until June 1967 amounted to nearly $40m.
The Government is now proposing further investment in beef road construction by the Commonwealth and the Bill now before the Senate provides for the authorisation of grants amounting to $50m over the 7-year period commencing 1st July 1967. lt is proposed that the Commonwealth will provide this assistance to the States of Queensland, Western Australia and South Australia in the form of direct grants with no requirements for matching or complementary expenditures by the States. I should explain, nevertheless, that the Premiers of the States have assured the Commonwealth Government that they will continue to make their own additional contribution to the programme.
Broad agreement has been reached in discussions between Commonwealth and State authorities as to the roads to be covered by (he programme and as to the level of construction for which financial assistance will be made available. Provision is made in the Bill for variations to the programme if this should prove to be desirable as the works proceed. Honourable senators are aware that the beef cattle industry in northern Australia is going through a period of pronounced development and that it is possible that some change in the programme may be warranted in the light of some future development. The Commonwealth will, of course, consider any possible variation only after the closest consultation with the State government concerned.
Other provisions in the Bill relate to such matters as the Commonwealth’s reservation of the right to approve routes, design standards and construction arrangements, (he supply of information by the States, and the provision of working advances to the States, lt is also provided in the Bill that expenditure by a State government for which reimbursement from the Commonwealth will be available under the programme shall he deemed not to be expenditure by the State for the purpose of the Commonwealth aid roads matching arrangements.
I turn now to the details of the 7-ycar programme on which, as 1 have said, broad agreement has been reached between Commonwealth and State authorities. Queensland’s .share of the finance will amount to $39. 5m which will be used to complete or continue the works under construction at the end of the previous programme, that is, at 30th June 1967, and also to commence work on a number of new roads.
The work to be undertaken on roads approved under the earlier programme comprises: tlx: construction of a bridge over the Flinders River on the Julia CreekNormanton road; (he completion of sealing of the Georgetown-Kennedy Highway road together with the construction of a major bridge over the Etheridge River and a number of smaller bridges; the sealing of a further 38 miles on (he Winton-Boulia road; the completion to sealed standard of the Mount Isa-Dajarra road; the completion to gravel standard, mainly of the Dingo-Mount Flora road; the completion of existing contract plus further section to sealed standard of the BatteryTownsville road; the completion of bridges under construction plus the upgrading of selected sections of the road to gravel standard and the construction of a number of other bridges onthe Mareeba-Laura road; and the continuation of construction to sealed standard on the Lynd-Charters Towers road.
New works will be undertaken with Commonwealth finance on the following roads: A road through May Downs linking the Dingo-Mount Flora road with the MarlboroughSarina road; the Oxford DownsMackay road; the Cloncurry-Burketown road; the Georgetown-Croydon-Normanton road; the Mount Douglas-Collinsville road; the Mount Coolon-Nebo road; the Mungana-Highbury road; and the WindorahCurrawilla road.
Western Australia’s share of the finance will amount to $9. 5m which will be used for the continuation of upgrading of the roads in the earlier programme, namely: The Great Northern Highway, between Broome and Wyndham: the Duncan Highway, Halls Creek to Wyndham via Kununurra; and the Derby to Gibb River road. In connection with the upgrading of the Duncan Highway,I would draw the attention of honourable senators to the provision in the Bill for the Government of Western Australia to undertake certain works which will lie within the Northern Territory, and which become necessary because of the projected construction of the Ord Dam. Water to be stored by the dam will inundate sections of the existing Duncan Highway making a re-location necessary. The most feasible route for the re-location lies partly within the Northern Territory.
South Australia will receive a grant of $1m for permanent works on the Birdsville Track between Birdsville and Marree. This amount is the major part of the amount calculated as justified by the increased cattle turnoff expected from improvements to the Birdsville Track. Although this amount is not sufficient to improve the road to a standard equivalent to beef roads necessary for high traffic densities, it is considered sufficient to alleviate to a significant extent the considerable cattle transport problems which exist in this region of South Australia.
In addition to the proposed programme of works covered by this Bill, I would remind honourable senators that the Government has already announced a new programme of beef road construction in the Northern Territory. It is estimated that roadworks to the value of $17.7m will be constructed in the Northern Territory over a period of about 6 years commencing 1st July 1967. It will be seen, therefore, that on the passage of this Bill, the total amount of finance already provided or approved by the Commonwealth for beef road construction in Queensland, Western Australia, South Australia and the Northern Territory for the period that commenced in 1961 will be no less than $107m. This is tangible evidence of the importance which the Government attaches to beef cattle roads as a means of developing our northern areas and of increasing Australia’s export earnings through greater beef production.
I should add that this substantial investment in northern roads by the Commonwealth reflects the Government’s confidence that there will also be substantial investment, in the private sector, by members of the beef cattle, road transport and meat processing industries in northern Australia. The Government considers that the assistance it is now proposing will make a significant contribution to the development of the beef cattle industry in the north and to northern development generally. I commend the Bill.
Debate (on motion by Senator Dittmer) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator McKellar) read a first time.
That the Bill be now read a second time.
On 15th August 1967, in his Budget speech, the Treasurer (Mr McMahon) stated that the Government proposed to seek an amendment of the Defence Forces Retirement Benefits Act to give common entitlements to members of the armed forces on continuous full time duty for a period of 12 months or more by admitting to the scheme (hose now excluded by reason of the terms and conditions under which they serve. The defence forces retirement benefits scheme was inaugurated in 1948 to provide a common superannuation scheme for the three permanent arms of the defence force. In essence, the scheme was limited to regular officers of the three Services and to other rank members engaged for 6 years or more. Following the introduction of the national service scheme and the increase in the numbers of citizen, reserve and supplementary force members on full time service, there are now over 2 1 ,000 service men and women who, although serving for extended periods on the same basis and alongside members of the permanent forces, have not access to the scheme. This Bill, which extends the membership of the Defence Forces Retirement Benefits Fund to include members of the defence force aged 18 years or more who are engaged or appointed for a period of continuous full time service of not less than one year, will bring the large majority of these persons into the Fund.
While the new members will not contribute to the Fund until after the Act is proclaimed, the Government has decided that eligibility for pension benefits will be extended retrospectively to or in respect of former members of the forces whose service was terminated by death or substantial incapacity on or after the date of the first national service intake, 28th June 1965, and before the commencing date, who would have been eligible to contribute to the Fund had the membership provisions of this Bill then applied. Amounts of pension to be paid in respect of periods prior to the commencement of the Act will be determined by the Defence Forces Retirement Benefits Board. In determining these retrospective payments, the Board will have regard to amounts of gratuity received at discharge and to payments that have been received by the member or his beneficiaries by way of Commonwealth social service benefits, weekly payments under the Commonwealth Employees’ Compensation Act or pension under ‘ the Superannuation Act. The amounts recovered from any of these sources will not in any case exceed the amount of the retrospective pension payment. One fortnight’s contribution at the rale appropriate to the former member’s rank will be deducted from the initial pension payment to establish contributor status in accordance with an existing principle of the principal Act.
By reason of Fund membership the new members will become entitled to the generally more beneficial gratuity provisions of the Act. As appropriate, suitable transitional provisions will cover those serving members who are now entering the Fund in respect of gratuity entitlements accrued under Service regulations in respect of their earlier non-contributory service. No member will suffer any loss of gratuity benefit simply as a result of Fund membership. However, certain medical and dental officers who are entitled to special benefits by way of bounty and gratuity will continue to receive these benefits under the Service regulations.
Since 1959 the Act has provided for payment of $600 to a male other rank member who re-engages for a further period of nol less than 6 years after completion of an initial period of service of 6 years. The Government has decided to extend this provision to provide from now on for payment of $200 after 3 years service if the member has agreed to serve for not less than a total of 6 years, and for payment of $800 after 6 years service, less any payment previously received, if the member has agreed to serve for not less than a total of 12 years. However, payment will not in any case exceed the amount that would be payable to the member by way of gratuity and refund of contributions if he were to be discharged at the point at which he becomes entitled to the advance. The existing arrangement that payment will be made as entitlement arises unless the member specifically elects not to receive it will continue. As hitherto, advance payments will not be recovered from the retirement benefits of the member should he die or be retired on invalidity grounds.
Amongst the members who will now be eligible to contribute to the Fund are considerable numbers of Commonwealth officers on leave from their employment who are contributing to the Commonwealth Superannuation Fund. The Government has decided that these members, like their Service colleagues, should contribute to the
Fund while members of the forces, and their contributions to the Superannuation Fund will be deferred until they cease to be liable to contribute to the DFRB Fund. On completion of defence service the deferred contributions to the Superannuation Fund will be met from the refund of contributions and gratuity, if any, payable from the DFRB Fund.
In the event of a superannuation contributor being discharged on invalidity grounds from the defence force he will not be entitled to pension benefit from the DFRB Fund. Instead he will receive a refund of contributions and an invalidity gratuity if so entitled and will look to the Superannuation Fund for his pension which will be supplemented where the pension entitlement from the DFRB Fund would have been greater. Similarly, should a superannuation contributor die while still a member of the forces, his widow and any children will receive a Superannuation Fund pension supplemented as appropriate. The member’s contributions to the DFRB Fund will be refunded. These proposals will be explained in more detail when a Bill to amend the Superannuation Act is introduced later this day.
Provision has been made in the Bill to meet the situation of a national serviceman who is granted extended leave without pay on grounds of exceptional hardship. Under the existing provisions of the DFRB Act a member of the Fund is required to contribute during any period of leave without pay and continues to be entitled to benefits, including pension benefits, under the Act during the leave irrespective of its length. While this is appropriate for members of the regular forces the Government has decided that, in the case of a national serviceman, his contributions to the Fund will cease when the leave without pay extends beyond a period of 30 days, and he will not be entitled to death or invalidity benefit while he continues to remain on leave. On eventual discharge the period during which he contributed to the Fund will be the period of his service for gratuity purposes.
The principal Act at present does not make any provision against early payment of benefit from the Fund because of disabilities in existence before entry but not delected in a pre-entry medical examina tion.. This is remedied in the Bill which provides that a- person discharged within 3 months of entry into the forces because of a medical condition which existed prior to enlistment or appointment and which has not been materially aggravated by service will not be entitled to invalidity benefit under the Act. This provision will apply to all classes of members in the Fund and not only to the new categories of members being provided for in the legislation. The disqualification from benefit will not apply in the case of death during service.
Unlike the Superannuation Fund, the Defence Forces Retirement Benefits Fund is not protected against abnormal liabilities arising from death and incapacity due to active service. The Government has decided that, with effect from 14th December 1959, the date from which the DFRB Fund was placed on an actuarial basis, the Commonwealth will meet any excess charge against the Fund arising from the expected greater risk of death and retirement on invalidity grounds amongst members on active service, active service meaning service that is active service for the purposes of the Defence Act. The Bill provides for the excess cost to be determined annually by the Treasurer after receiving a report from the DFRB Board, which will consult with the Commonwealth Actuary. It is intended that at each quinquennium the Actuary should review the adequacy of the amounts paid into the Fund.
One of the effects of extending the scope of membership of the Fund is that members of the Permanent Forces who reach the retiring age for their rank and transfer to a reserve or supplementary force with a higher retiring age will be able to continue their contributions to the Fund and qualify for higher pension. Similarly, members who retire on pension and later return to serve again on a full time basis will be eligible to contribute towards better pensions. Because some complex issues are involved it has not been possible to incorporate in this Bill the provisions establishing the basis on which these persons will continue their contributions to the Fund. A second Bill to deal with these and related matters will shortly be introduced into the Senate.
There are three other matters not dealt with in this Bill about which I want to comment. Because many of the new members will serve for comparatively short periods and then leave the service, receiving a refund of their contributions to the Fund on discharge, the question arises whether the earnings on these contributions while held by the Fund will be adequate to meet the cost of death and invalidity risk cover provided to these members during their service. The statistical information presently available has not been sufficient to determine whether the experience of new members will be similar to that of existing members and, accordingly, it is the Government’s intention to have the Commonwealth Actuary review the position as at 30th June 1969, by which lime reasonable statistical information should be available. Should the Actuary’s review show that the death and invalidity risk amongst these new categories of members is significantly higher than that of the present members of the Fund - this is by no means certain - the Government will propose that the Fund be reimbursed for the added risk.
A similar approach will be adopted in respect of those persons who the Government proposes should now be admitted to the Fund although of a somewhat lower medical standard than the present Fund members. Here again, there is insufficient statistical information available to assess whether the invalidity and death risk in respect of these persons is higher than for other members of the Fund. In view of the relatively small numbers involved, the Government decided that these members should be subject to the same conditions as other members of the Fund. However, it would be the Government’s intention to review the position as at 30th June 1969 and to propose that the Fund be reimbursed should a significantly higher risk be disclosed.
The third matter concerns the younger members of the forces. Members aged 18 and 19 years at present contribute at the normal rate of 5% of pay but are covered only for death and invalidity benefits until the age of 20 years when service commences to count towards an age pension. Accordingly, these members may pay up to 2 years more contributions for the same age pension as a person entering the forces at the age of 20 years. As well, there are now over 3,000 members of the forces under the age of 18 years who are not permitted to join the Fund although many are in receipt of adult rates of pay. For such non-contributory members a small invalidity pension only is payable, even though the disability might be such as to impair the member’s earning capacity for life.
The Government Members’ Defence Forces Retirement Benefits Committee some time ago expressed its concern to the Government about the position of these younger members and submitted a number of proposals. Last November the Treasurer stated that the Government was examining various alternatives and hoped to be in a position to determine the most appropriate solutions and to incorporate these in legislation during this session. The Government has now decided that the age limit of 18 years before which a member is not permitted to contribute to the Fund should be removed. Provision will be made for members entering the Fund before 20 years of age to pay lower rates of contributions throughout their service. These lower rates also will apply to present members who have entered the Fund since 1959, when the contribution basis of the Fund was changed, and whose age on entry to the Fund was 18 or 19 years.
Because the invalidity pension entitlement of some younger members would be unduly low in the initial years of service if it were determined by the member’s rate of pay and level of contributions to the Fund the Government proposes to establish a basic invalidity pension rate which will relate the invalidity pension of members on less than adult rates of pay to the pension category appropriate to a Private, Group 1, the minimum adult pay grouping applying to age 17 entrants. The existing provision for small noncontributory pensions payable to members under the age of 18 years retired on invalidity grounds will be repealed. The Government hopes to introduce the legislation to implement these proposals in the Budget session later this year.
This Bill and the proposed legislation I have foreshadowed represent a new and,
I think, enlightened approach to the matter of retirement benefits for the armed forces. Some 24,000 or more servicemen and women, including the 3,000 under the age of 18 years previously excluded, will become eligible to enter the Fund, which will thus provide death, invalidity and retirement cover for the great majority of the members of the armed forces. The scheme as amended will give to members new opportunities to contribute over wider spans of service for better pensions as they move from force to force. The changes being made are both worth while and timely.
There has been prepared for honourable senators a statement which gives examples of DFRB benefits payable to, or in respect of, members who are killed or discharged from the forces as a result of active service in Vietnam. Examples of the appropriate repatriation benefits payable in addition to the DFRB pensions are also shown. With the concurrence of honourable senators I incorporate the statement in Hansard. It reads:
DFRB benefits are payable, in accordance with the examples in the table below, irrespective of whether the death or injury is suffered in Australia or on active service:
In certain circumstances, benefits are also payable under the Commonwealth Employees’ Compensation Act.
The following examples show the combined benefits payable, based on the - above table of DFRB entitlements, when servicemen of the ranks shown suffer death or total and permanent incapacity in circumstances which also attract repatriation benefits:
I commend the Bill to honourable senators.
Debate (on motion by Senator Bishop) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Mckellar) read a first time.
– I move:
That the Bill be now read a second time.
When the Defence Forces Retirement Benefits Bill 1968 was introduced into the Senate, 1. informed honourable senators that a second DFRB Bill would be introduced to deal with those members who extend their service and pensioners who serve again. This second Bill establishes the conditions under which certain of these members will contribute to the Fund and makes provision for pension on eventual entitlement.
At present only officers of the regular forces and regular force other rank members engaged for six years or more enjoy membership of the Fund. In the case of officers whose ages for retirement from the regular forces range from 45 years upward, entitlement to contribute to the Fund ceases when they retire from the regular force even though their service may continue for many years in a reserve or supplementary force.
Similarly, an other rank member of the regular forces who, on establishing entitlement to pension after 20 years service from age 20. transfers to a reserve or supplementary force, also loses the right to contribute to the Fund and a better pension. The two Bills will enable such members to continue their contributions to the Fund.
Contributing members who continue to serve without breaking continuity will contribute on the same basis as previously. Pensioners who serve again and meet the qualifications of a contributor will contribute on the percentage of salary basis that has applied to members entering the Fund since 14th December 1959. Age on first entering the Fund will determine the percentage rate of the contributions. Should a pensioner re-enter at a rank lower than his rank on first retirement he may contribute on the basis of his new rank or, alternatively, elect to contribute on the basis of the pension category appropriate to his rank at first retirement. Pension will not be paid during the period the pensioner is again contributing to the Fund. Benefits payable under the Act can vary according to whether a member retires before or, alternatively, on or after the retiring age for his rank.
Because different retiring ages may apply to the same rank according to the particular force in which a member is serving, provision has been made in this Bill to prevent a member who continues to serve being placed at a disadvantage. For example the retiring age for a major in the Australian Regular Army is 47 years, but the retiring age increases to 60 years if the major transfers to the Regular Army Supplement. In certain circumstances, the higher retiring age would operate to the detriment of the member and even extinguish a pension entitlement that would have been established had the member chosen to retire at the earlier retiring age instead of transferring to the other force and continuing to serve. Accordingly the Bill provides for the Permanent Force retiring age to apply in lieu of a greater retiring age for the purposes of certain provisions. Should the member’s retiring age for rank be less than the Permanent Force retiring age, then the lesser retiring age for rank will apply for the purposes of those provisions.
Subject to these adjustments of retiring age provisions, contributing members who continue to serve will establish pension entitlement in accordance with existing provisions of the Principal Act or the legislation that applies to contributors who entered the Fund before 14th December 1959. An age retirement pensioner who, during his previous service, was contributing for his full entitlement and who, on retirement after his further service, has attained the same or a higher rank than the rank on first retirement, will receive pension in accordance with the provisions of the Principal Act, adjustment being made for the periods during which he did not contribute to the Fund. In those cases where the pensioner did not contribute for his full entitlement during his previous service, commuted part of his pension after retirement, or retires on the second occasion at a lower rank, the pension payable at second retirement will bc at such rate as is determined by the Defence Forces Retirement Benefits Board as being appropriate having regard to all the circumstances of the case. In broad terms, the pensioner at second retirement will receive the pension payable prior to recommencing service plus an additional amount determined by his category at second retirement and the period during which he contributed following re-entry.
Provision also has been made to cover the case of an invalidity pensioner who returns and who, on second retirement, has not sufficient contributory service to qualify for pension. Such a person will be granted in retrospect a refund of contributions and invalidity gratuity in respect of his earlier service less the pension received while a pensioner. In addition there will be paid to him his contributions in respect of his second period of service and gratuity if so entitled.
The Defence Forces Retirement Benefits Act at present requires a member who retires without entitlement to pension on other than invalidity grounds, and who subsequently returns to service again, to re-enter the Fund as a new member; he does not have the option of refunding contributions and gratuity and having his earlier service qualify as service for pension purposes. The current Bill does not vary this principle, but in the light of representations that have recently been made by the chairman of the Government members defence forces retirement benefits committee the Government proposes to examine this question in conjunction with other matters raised by that committee with a view to bringing forward legislation in relation to any changes decided upon in the Budget session later this year.
The Bill also makes special provision for those pensioners serving immediately before the commencing date of the new legislation who will not again contribute. Should such a pensioner be retired on invalidity grounds with incapacity for civilian employment of 60% or more or should he die while serving, the retirement pension previously payable will be replaced by the generally higher rate of pension that would have been payable had death or invalidity discharge occurred at the time of the earlier retirement. These special provisions will also apply to pensioners who served again and either retired on invalidity grounds or died between 28th June 1963 and the commencing date. The additional cost of these pensions will be met by the Commonwealth. 1 commend the Bill to honourable senators and in doing so I thank them for their indulgence in allowing me to continue past 6 p.m. in order to complete this second reading speech.
Debate (on motion by Senator Bishop) adjourned.
Sitting suspended from 6.5 to 8 p.m.
Consideration resumed from 6th June (vide page 1564).
Proposed new clause 13a.
– I move:
After clause 13, insert the following new clause: 13a. Section 29a of the principal Act is amended by omitting sub-sections (3.) and (4.).’.
It may be necessary to explain what this amendment seeks to achieve.
-(Senator DrakeBrockman) - Order! I point out to the honourable senator that proposed new clause I 3a was taken as a whole.
– I rise to order and suggest that the clause was to be taken in two parts. Senator Gair asked me specifically whether the amendments were to be dealt with separately and I said they were. In my speech on the amendments I indicated that it would be possible to vote for both legs of my amendment, (a) and (b), or (a) or (b), or neither. I think Senator Gair would support my recollection of that.
– That is right.
– What is the honourable senator suggesting?
– That in dealing with my first amendment we were dealing with the two parts separately.
– They were dealt with as one amendment.
– With great respect, no argument was addressed to part (b). 1 would be very surprised to hear that they were dealt with as one amendment after my own very clear statement of the alternatives facing the Committee. The two parts deal with entirely different subject matters.
– Order! I should have thought that in moving for the insertion of a new clause (a) and (b) would have been taken together. Apparently there was a misapprehension. I suggest that the only way to get round the difficulty is to seek leave of the Committee.
– I respectfully ask for leave of the Committee to put amendment (b) separately. It has not yet been discussed. It deals with an extremely important matter which was not even referred to in the debate on part (a) of the amendment.
– Has the question been put on part (a)?
– Yes, and it was defeated, but (b) has not been put to a vote nor has any argument in favour of it or against it been advanced.
– If I may be permitted to say a word in support of what the Deputy Leader of the Opposition (Senator Cohen) has said, I. recollect it very clearly as 1 was interested in this section of the Act. I listened to Senator Cohen address himself to this amendment. I wondered why he was not dealing with the second portion of it. I inquired whether he was dealing with the amendments together or was taking them separately. I understood from him that he had made it very clear at the beginning of his remarks that he was dealing with the two parts separately. I have been of the opinion that that was the position, that having disposed of (a) we would come to (b) when I would have an opportunity to address myself to that part of the amendment. 1 think it would be conceded that the two parts deal with entirely different matters. Whilst they are related in some way, they are not intimately associated, one with the other. Consequently I support Senator Cohen in his application for leave to submit amendment (b) now.
– Speaking to the point of order, I did not share the view that has been stated by Senators Cohen and Gair. I suggest that if leave is granted it may be convenient for the Deputy Leader of the Opposition to take amendment (1) (b) and amendment (2) together. Are they sufficiently cognate to be dealt with together?
– With respect, no.
– If that is so. I will not oppose leave being granted.
– Order! ls leave grunted? There being no objection, leave is granted.
– 1 am obliged to the Committee, to the Minister for Works (Senator Wright), and to Senator Gair who supported my application. I certainly did not understand that the matter had been disposed of and, so far as my thinking was concerned, it was not disposed of. In response to what the Minister has said, it is not related to my amendment (2) which deals with a separate question again. My amendment (1) (b), which I take it 1 am now in order in discussing, deals wilh a very anomalous situation relating to the exemption of conscientious objectors from service. Section 29a (I.) sets out the definition of persons who may claim exemption on grounds of conscientious beliefs. Section 29a (1.) reads:
A person whose conscientious beliefs do not allow hint to engage in any form of military service is. so long as he holds those beliefs, exempt from liability to render service under mis Act.
Section 29a (2.) reads:
A person whose conscientious beliefs, do not allow him to engage in military duties of a combatant nature bt., allow him to engage in military duties of a non-combatant nature, shall not. so long as he holds those beliefs, he required to engage in duties of a cumbalum iv.mire.
The definition of ‘conscientious objector’ is no longer in issue because, following the defeat of my first amendment, I must proceed upon the assumption that, the amendment for which I pleaded with the Committee not being agreed to, the present definition applies. I stress that because the adoption of my present amendment does not involve any extension of the categories of persons entitled to exemption on the ground of conscientious belief. It proceeds on the basis that the exemption is defined as at present. But sub-sections (3.) and (4.) of section 29a introduce provisions of very considerable difficulty for a man who may be a conscientious objector and who has already begun to render service under the Act. The Opposition seeks the deletion of sub-sections (3.) and (4.). Sub-section (3.) states that sub-section (1.) applies to a person who has commenced to render service under this Act only if that person formed the conscientious beliefs referred to in that sub-section after he commenced to render that service. So a man who was already serving could not apply for exemption on the basis of conscientious belief although opposed to participation in any form of military service unless the belief were formed after he had begun his service.
There are two possible situations: First let me deal with the situation of the man who has not applied for exemption before commencing his service. There could be many reasons for this. He may have failed to make application because of ignorance, because of a matter beyond his control or even because he was a timid man and did not have the ability or the courage to speak up and confess to having these beliefs. Not having spoken before he commenced his service he can no longer apply for exemption unless he can show that he did not hold these beliefs before he was called up but has only formed them since he began service.
– He would be required to tell an untruth.
– He would be required to tell an untruth and say that he had only just formed this belief. But more importantly - and this is something that I put to the Senate as strongly as I can - the process of forming beliefs varies from man to man. Some men may come to a particular belief suddenly. Some incident may crystallise something in their mind and the next day they are capable of expressing a new belief. I am assuming here that all of the cases that I am dealing with are genuine. If they are not genuine it is for a court to say that it docs not believe a man and he does not obtain his exemption. In this amendment the Opposition is proceeding on the assumption that a man wants to be truthful and that a court would find that he holds conscientious beliefs. If a person has not fully formulated these beliefs and applied for exemption before responding to his callup notice, under this particular legislation he has no opportunity of applying for exemption. We all know that some people form beliefs gradually. In 1966 His Honour Mr Justice Windeyer referred to this process of forming an opinion in the case of Collett v. Loane and Another in the following words:
No doubt the Act proceeds on the assumption that beliefs ure ordinarily firm and constant and arc likely to remain unchanged in the time between registration and call-up. Sudden conversions - if conversions ever occur without some kind of predetermination - are no doubt unlikely to occur. Nevertheless it seems that months may elapse between a decision rejecting an application for exemption and a call-up notice.
His Honour was referring to a man who makes an application for exemption before being called up and another application after being called up. His Honour continued:
And in thai lime it is possible for a man’s conscientious beliefs genuinely to change and develop, to clarify and intensify and become for him more dominating and compelling. If that happens, he may, 1 think, apply again, notwithstanding tha his earlier application had been rejected.
Al a later stage His Honour said: . . the task for the magistrate would not be to inquire whether the beliefs which the applicant professed were philosophically different from those he had earlier professed. A comparison between a presently expressed belief and its intellectual and spiritual antecedents might sometimes be loo profound for a court to undertake; and it would seldom be necessary. The essential question for the magistrate would bc, was the applicant at the time of the hearing before him exempt on the ground of his having conscientious beliefs as described :n the Act? 1 respectfully agree that that is the lest that the law ought to apply when a man applies for exemption on the ground that his conscientious beliefs will not allow him to perform military service. I believe that the magistrate should ask himself: Does this man hold such conscientious beliefs? If the magistrate is not satisfied that the man holds such beliefs then he should not be exempt from service. But if the magistrate is satisfied then it should not matter when and how these beliefs were formed as long as they are genuinely held and are held at the time application for exemption is made.
– The time of disclosure of his beliefs or objections does not come into it.
– That is so. I have dealt with the man who did not apply for exemption before commencing service. I now want to deal with a man who applies for exemption but receives his call-up notice and commences to serve in response to that call-up notice before his application for exemption is determined. The situation could occur - and I am told that it has happened in practice, although the call-up notice has not been proceeded with after representations have been made - where such a person could be debarred from having his application for exemption heard because under the terms of the Act he is not a person who formed conscientious beliefs after he commenced to render service. He alleges in his application, which .s made before he receives a call-up notice, that he has conscientious beliefs at thai lime. In either event it seems to the Opposition that there is a real injustice that should be cured and can only be cured by deleting sub-sections (3.) and (4.).
The Minister for Works (Senator Wright) is aware of the fact that there have been representations from a number of sources. In his second reading speech he referred to a problem raised by the Australian Council of Churches and indicated that he proposed to deal with this problem administratively. 1 would like to know what he means by that. Even the most humane administration cannot confer rights on a man which the law does not give him. If the law says that he cannot apply for exemption after he has commenced to render service unless his conscientious beliefs were formed after he commenced to serve, then how can this position be dealt wilh in a satisfactory way administratively? How can the Minister for Labour and National Service or his Department wink, if that is what is involved, at any disobedience of the law or any flouting of the law? I assume that that is not what is in mind. So dealing with this problem administratively must have some kind of esoteric or occult meaning which we do not understand. I would be obliged if the Minister would clarify the position.
But whatever the Minister’s response, the Opposition would argue as strongly as it possibly can that these sub-sections operate only to deprive those men whom one must assume to be bona fide and genuine of their right to apply for exemption because of their conscientious beliefs. The deletion of these sub-sections will not open the way for evasion of service. It will merely facilitate appeals or applications for exemption by those men who will in the end be found to hold conscientious beliefs. At present a man who has not applied for exemption before commencing service may make application to a court and state: ‘My beliefs have been formed over a period of time. As far as I can tell, they began in a quiet way 6 months before I received my call-up notice. Although they started then I was not as convinced when 1 went in as I. am now. ] think the process is now complete. I cannot exactly pinpoint whether it happened before I commenced my service or after.’ But even though the magistrate is perfectly satisfied that this man is genuine and believes that this man did not finally form his belief until after commencing service, the law does not entitle the magistrate to grant him exemption. This is a shocking state of affairs. It ought to be remedied. It can be remedied very simply. In New Zealand, when a man who is serving applies for exemption his name is taken off the register immediately.
So far as the second leg of my amendment is concerned, section 29a (4.) applies to the man rendering service who is no longer prepared, as a matter of conscience, to do combatant duty but who is prepared to do non-combatant duty. He may change from being a man who is prepared to do either into a man prepared to do only one. What we seek to do is to help that man too. At the moment, he is protected only if he has formed his conscientious beliefs after he commenced to render service or if, before he began to render service, he had had an application that was decided in his favour; otherwise he cannot apply for exemption. This seems to us to be a monstrous hardship and injustice to a man who, we must assume, for the purpose of this argument, is genuine. Acceptance of our amendment would do nothing to make it more difficult to carry out the provisions of this Act. It would give only elementary justice to a group of men who may be small in number but for whom the question of conscience is important and whom it is extremely difficult, or may be extremely difficult for one reason or another, to bring within the narrow confines of the present section.
For those reasons, I urge the Committee to support the amendment. I urge the Minister for Works to have a close look at this matter. The Minister for Labour and National Service (Mr Bury) has conceded that he is hoping to handle this matter administratively. This must mean that he recognises some difficulty here. For my part, the Committee has the opportunity to put the matter right by voting for this amendment.
– Mr Chairman, I rise to support the amendment submitted by the Acting Leader of the Opposition (Senator Cohen). As 1 said in my second reading speech on this Bill, my colleague, Senator McManus, and I have the greatest respect for the genuine conscientious objector. I would not be a party to inflicting and imposing an injustice on a man who had a genuine conscientious objection to serving in the military service. Section 29a, sub-sections (1.) and (2.) deal with two separate groups of conscientious objectors. As Senator Cohen has pointed out, section 29a (I .) provides:
A person whose conscientious beliefs do not allow him to engage in any form of military service is, so long as he holds those beliefs, exempt from liability to render service under this Act.
Section 29a (2.) deals with a person whose conscientious beliefs do not allow him to engage in military duties of a combatant nature but which allow him to engage in military duties of a non-combatant nature.
– Whilst he holds those beliefs.
– Yes, whilst he holds those beliefs. Sub-sections (3.) and (4.) of section 29a cater for the conscientious objector who develops the conscientious beliefs after he has commenced to serve or renders service under this Act. The acceptance of the amendment moved by the
Acting Leader of the Opposition will not impose any hardship on that group of conscientious objectors. But, like Senator Cohen, I can see that an injustice can be inflicted upon a young man who has held conscientious objection to military service for years because of his religious convictions or by reason of his being an adherent or a member of a particular faith that is opposed to combatant duties in the Army. Because he is not conversant with the provisions of this Act, or because of illness, misadventure, accident or some other reason, he fails to make application for exemption prior to commencing to render service under this Act. If he has failed to make application prior to his call-up but subsequently makes application for exemption and is asked on examination of his application the question: ‘How long have you possessed these beliefs?’, and if he tells the truth as he would be required to do on oath - he would say: ‘1 have held these objections or these feelings from boyhood’ - he would be ruled out. He would have no grounds for application for exemption at all. If he said: ‘I have only developed these conscientious objections since 1 commenced to render service’, he is catered for under sub-sections (3.) and (4.). But if he tells the truth, I repeat, his grounds for exemption are wiped out because no provisions are made in the Act to meet such a case.
It is all very well to say that he is not likely to get his call-up notice until after his case is heard. That may be true in most cases if not in nearly all. But in a big organisation such as this Department, error can take place. Mistakes are made. The call-up order could be issued before the case had been heard. If that event takes place, the individual concerned is disadvantaged and an injustice has been inflicted upon him. That is what 1 aim to correct, and that is why I am prompted to support this amendment. In conscience, I think that it would be very wrong for us to disadvantage that individual merely because of some circumstances beyond his control. I strongly recommend to the Minister that he accepts this amendment.
If these sub-sections are eliminated, no injustice will be done to or no handicap imposed on those objectors who have developed their conscientious objection after commencing to serve under this Act.
At the same time, the danger can be eliminated of inflicting an injustice on a person because, for some reason or other, he failed to make his application until he entered the forces. It is not good enough for the Minister for Labour and National Service (Mr Bury) to say thai we can adjust this administratively. If it can be done as easily as all that, what is the objection to accepting this amendment? The acceptance of the amendment would overcome any possibility of any injustice to which f have referred. This would relieve the Departmental officers of the necessity to examine and determine cases as they arose, lt would be a clear cut provision in the Act; one without any ambiguity and one easily administered. I feel that I am nol required to say any more on this matter. Senator Cohen has covered ii very comprehensively.
I emphasise that if it is our desire - I believe that’ is so - to respect the genuine conscientious objector we should not disadvantage him because of some circumstance that might be beyond his control when we can provide for him by the elimination of these sub-sections. Some honourable senators might believe that such an elimination would cause or would be the means of encouraging a person to assume a conscientious belief that he could not serve, after he had commenced to serve in the Army; but do not sub-sections (3.) and (4.) provide for the bogus conscientious objector? They provide for a serviceman who develops a conscientious objection to serving in the Army. Such a man is catered for. Bui the application made by the man who failed to make his application before he commenced to serve and is truthful enough to say: ‘I have been a conscientious objector to military service all my life or most of my life’, is thrown out. The position is as simple as that. It can be rectified very easily by the acceptance of this amendment. 1 believe that the result would be that in such cases - naturally they would be very rare - we would be satisfied that no injustice was being done.
– I believe that the proposition involved in this amendment depends upon a judgment that should be made by the Committee on the efficacy of the Act or its true purpose. 1 do not suppose there could be imputed to either Senator
Cohen or Senator Gair, who have spoken already, or to any other honourable senator a lack of a genuine regard for the case of the true conscientious objector. But I suggest that we should not fall into the error of believing that that is the main case that should be provided for and catered for. In considering the proper provision to protect the true conscientious objector we should not so weaken the administration of the Act as to unduly encourage or facilitate the proffering of a conscientious objection.
Honourable senators will recall that a man who claims that he has a conscientious objection may make repeated applications depending upon differences in the form of his belief or conscientious objection from time to time. Section 29a (I .) says:
A person whose conscientious beliefs do noi allow him to engage in any form of military service is, so long as he holds those beliefs, exempt from liability to render service under this Act.
The first sub-section to which the amendment is directed says:
Sub-section (I.) of this section applies to » person who has commenced to render service under this Act only if that person formed the conscientious beliefs referred to in that sub-section after he commenced to render that service.
I suggest that the justification for that provision consists in this: It is positively set forth that the man who can establish a conscientious belief within the meaning of the Act is exempt from service, and he may establish that belief before the ballot, before the medical examination, before his call-up or after his call-up and before he commences military service.
– He has four options.
– He has those four periods in which he has the right to claim exemption from military service. I believe that this is a reasonable proposition. Justice is accorded to a man with a conscientious objection against any form of military service by saying that if he applies at any of those four stages before he actually answers the call-up notice and before he actually commences service, and if he persuades a court that he has that belief, then he is exempt; and that, if he persuades a court that he has a conscientious belief not to all forms of military service but to combatant service, then he is not required to engage in combatant service.
I suggest that a moment’s reflection will show that if a man, in the words of Senator Gair, has not been conversant with his position or through illness or inadvertence has gone through all those stages approaching call-up without invoking the provisions for exemption, then if he applies after he actually commenced his service, as the section says, he is entitled to exemption only if he formed his conscientious beliefs after he commenced service. 1 suggest that Senator G air’s dilemma is answered by the fact that the word used is ‘formed’. One does not form a belief or a conscientious objection to any form of military service by having a tentative view or being in the preliminary stages. If a person begins to form a belief, at the time when the belief is formed, even though the completion process takes place after he enters the service, the section enables him to invoke his conscientious belief as a means of objection. That is what the Minister for Labour and National Service (Mr Bury) had in mind when he said that the matter would be dealt with administratively. He had in mind that that construction of the section would be put before the court that had to consider such a matter.
I suggest that on reflection honourable senators will agree that that is the only practicable and reasonable way of administering, firstly, since the Act imposes compulsory national service, the necessity to give anybody otherwise eligible for national service the right to exemption if he has a conscientious belief against any form of military service. If a person does not invoke the right to make application for exemption on the basis of a conscientious objection before he actually commences his service - if he refrains from exercising that right at all four stages that I have mentioned - then the right should be available to him only if he shows that after call-up he formed that conscientious belief in the sense of then coming to a conscientious conviction. Whatever tentative grounds may have preceded his call-up, if his final state of mind is formed into a conscientious belief after he commences his service, under the terms of the statute that is now sought to be amended he will still be entitled to exemption. But only if he neglected all those four stages, and said that before he was called up he had formed a conscientious belief, would this section make the time of cali-up the conclusive time in regard to the success of his application.
– I am not very happy with the reply of the Minister. We are concerned with the meaning of the word ‘formed’. The Minister considers that there are four opportunities for a conscientious objector to make an application for exemption prior to his entering on his service and that this is sufficient opportunity. I am disturbed about the legislation as it stands. 1 know of the case of a young man in Western Australia who had a formed conscientious objection and was really concerned as to whether he was right in applying for exemption, because he felt he had a duty to his country as well. After a lot of soul searching, the young man decided that he would join up, and he did so. At that stage, I believe, he had formed, on a considerable basis, a feeling of conscientious objection to war - not just to a particular war but to war generally. He entered the service and did his best for some months to try to meet its demands. He then found he could not carry on, and he entered an application to be registered as a conscientious objector. 1 believe that all credit is due to the magistrate who was prepared to accept this young man’s claim that his objection to war had been forming all along; that this was not a belief that had been formed after he had entered the Service. Yet, this boy was registered as a conscientious objector. For the life of me, I cannot see the necessity for leaving sub-sections (3.) and (4.) of section 29a in the Act. I believe all that is required is contained in sub-sections (I.) and (2.). I say this even after the explanation given by the Minister.
The Government apparently is trying to catch those people who for one reason or another do not apply for registration. I would not attempt to define all the reasons why these people do not take one of the four opportunities for application that have been listed. Why are we trying to catch these people out? We are still trying to crack a nut with a steamroller. I entirely agree with the arguments put forward by Senator Cohen and Senator Gair. I thought they put their cases very well. I have just given the Senate an example of what happened in Western Australia in one case that 1 know of. There has been a similar case in another Slate. The Government is trying to deal with only two cases by leaving subsections (3.) and (4.) of section 29a in the Act. The Opposition’s amendments are designed to make the Act operate reasonably in relation to people who hold conscientious beliefs. We are not trying to make loopholes in the Act. All these people have to prove that they hold conscientious beliefs. No-one can get off just because he says that he has a conscientious belief. He has to go through a pretty stiff examination of his beliefs and has to state his reasons.
– A grilling examination.
– That is so. 1 believe that the omission of sub-sections (3.) and (4.) from section 29a will make the Aci more humane. The omission of these sub-sections would not detract from the value of the Act as far as the Government is concerned. In fact, 1 believe the omission would be a considerable improvement.
– I have heard the Minister, for whom I have great respect, in many a tight spot, fighting his way out of a difficult corner and making the best of a very bad argument. But, with great respect to him, 1 say that I have never heard him less convincing than he has been tonight. He told us nothing. When he explained what sub-sections (3.) and (4.) of section 29a meant he explained what is perfectly obvious to us all. He then made matters worse by explaining what the Minister for Labour and National Service (Mr Bury) meant by ‘dealing with the matter administratively’. He said that this meant that this section of the Act was to be put before courts. ‘Dealing with the matter administratively’ surely means the taking of some action within the Department of Labour and National Service to meet the kind of objection that is now raised, lt was put seriously to the Minister for Labour and National Service by the Australian Council of Churches that an injustice could arise. In fact, that Minister, in his second reading speech in another place, and the Minister for Works, who is in charge of the Bill in this place, put some weight on this argument and conceded the possibility of injustice. Otherwise, there would be no reason to talk about dealing with the matter in any way.
I say to the Minister with great respect that I think it is just plain nonsense for him to tell us what the meaning of the subsection is and to say that a man has every chance to register. There are two different sorts of situation. One concerns the man who does not apply for exemption before service and because he had formed his views before he answered his call-up, cannot apply thereafter. The Minister left completely unanswered the second proposition I put. I referred to a man who had applied for exemption and who had received his call-up notice before his application for exemption was heard. The man having responded to the call-up notice, 1 should have thought that, within the meaning of the Act, he had commenced to render service. A later amendment that 1 shall move will have application to such a situation. I should have thought that it was clear that the Act does not prevent a person who has applied for exemption from military service, or from duties of a combatant nature, under section 29a (2.) from being required to commence to render service before his application for exemption has been determined by a court. Therefore, by a properly issued call-up notice, a person who is entitled to exemption, and who has applied for it, may be denied it by sub-sections (3.) and (4.). I do not want to hear it said that this could not happen. It has happened. 1 have in my hand a carefully documented case of a young man who was dealt with in this way. A great deal of pressure had to be put on the Department of Labour and National Service to get it to withdraw the call-up notice. Even then, the Department did not withdraw the notice until 5 p.m. on the day before he was due to be called up. This was a Queensland case, and no doubt Senator Gair is aware of it.
– He did not know whether or not to turn up.
– He did not know what to do.
– Was that Collett’s case?
– Yes. I do not mind reciting all (he facts. I think it is scandalous that the law can allow a call-up notice to Ite issued and to be required to begin service after he has applied for exemption as a conscientious objector and before the application has been determined. If this section is construed as 1 believe any lawyer would construe it, it means that such a man cannot thereafter have his application determined, because he will be taken to have formed his beliefs before he went in and not afterwards. What would the Government be giving away if it agreed to this amendment? The Minister’s answer suggests that he is not taking the Senate seriously. I repeat that I think this is a clear case in which common sense demands that the Opposition’s amendment be acceded to. If this were done the Government would not be troubled in any way in the administration of the national service scheme.
– I do not propose to be persuaded throughout this debate by observations that what I have said is so much nonsense and is scandalous or by the statement that no lawyer would adopt the viewpoint I expressed. This is the sort of attitude that I would expect to be expressed elsewhere, but such attitudes have no persuasive value in this forum. Senator Wilkinson put forward a viewpoint based upon the decision of a West Australian magistrate who thought that if the applicant had commenced to form a conscientious belief before call-up and that belief became a conscientious conviction after call-up this section precluded the success of the application. I suggest that that is the kind of case to which the amendments dealing with further rights of appeal which we will debate later this evening are directed.
On the issue of conscientious objection, it will be remembered that this Government was the first in the history of Australian defence legislation to introduce a provision to enable an applicant who was unsuccessful before a magistrate to appeal to a Supreme Court judge or a District Court judge. Both the Opposition and the Australian Democratic Labor Party have circulated amendments which seek to enable the decision of a Supreme Court judge or a District Court judge to be taken further on appeal as a matter of right on a ground involving a question of law only and, with the leave of the Supreme Court, for an appeal from that decision to that Court constituted by not less than three judges to be instituted on any other ground, that is, on matters of fact or as to the weight of evidence. I suggest that is the proper remedy if a magistrate has misconstrued this section. If a young man is in the process of forming a conscientious objection but docs not completely form it until after the . commencement of service, then the remedy is to avail himself of the further right of appeal that will be discussed later.
Senator Cohen made other submissions. He said that a man who had received his call-up notice and had lodged an application to be exempted on the ground of a conscientious objection might be called up before his application was heard. He referred to a case in Queensland which, as my colleague Senator Greenwood reminded the Deputy Leader of the Opposition, was one of special circumstances. In that case call-up was deferred until the application for exemption on the ground of conscientious objection could be heard a second time. 1 suggest, subject to any viewpoint that the equity lawyers may advance, that if a man had an application for exemption on the ground of conscientious belief pending before the court and it could be shown that the exertion of the call-up notice would prejudice the proper hearing of that application by reason of sub-section (3.) to which we are directing ourselves, any court of equity would ensure that the call-up notice was not enforced until the application had been properly determined. The Minister for Labour and National Service gave an administrative assurance to another place that in no case would a callup notice be enforced against a man who had lodged an application for exemption on the ground of conscientious objection so as to prejudice a proper decision on his application.
I submit that the contention advanced by Senator Cohen has been answered by the two arguments that I have put forward and that the argument put to us by Senator Wilkinson is answered by reflection upon the proper use of the proposed further right of appeal. I suggest that proper judgment should dictate that the Committee reject the amendment and allow the existing sub-sections to stand.
- Senator Wright said that we have to view the efficacy of this section and of the Act itself in fulfilling their purpose. The whole purpose of the National Service Act 1951- 1966 is to obtain as many able bodied men as possible to participate in the war in Vietnam. The whole history of this legislation runs parallel to the war in Vietnam; yet it is not specifically stated anywhere that this legislation applies to the war in Vietnam. As I see it, section 29a (I.) provides that any person whose conscientious beliefs do not allow him to engage in any form of military service, so long as he holds those beliefs, is exempt from liability to service. Sub-section (2.) refers to a person whose conscientious belief does not allow him to engage in duties of a combatant nature but allows him to engage in noncombatant duties. Sub-section (3.) applies to a person who has commenced to render service.
The point we are making is that, a person who becomes a member of the Services under this legislation is a young man 20 years of age who is in the process of forming his beliefs. We are taking it for granted that he is a mature man, a man who has the right to vote, who may have married or who may have finished his apprenticeship. All sorts of mature people may hold set beliefs, but we are dealing with relatively immature young people. So we must view the legislation in that light. Subsection (5.) of section 29a states:
For the purpose of this section, a conscientious belief is a conscientious belief whether the ground of the belief is or is not of a religious character and whether the belief is or is not part of the doctrines of a religion.
But there is a vast scope outside religious beliefs within which a man may form a conscientious objection. We speak of combatant and non-combatant duties. I would like someone to define definitely at some time or other what are non-combatant duties and what are combatant duties.
– The Medical Corps.
– What about a man who commences duty as a clerk in the Department of Labour and National Service? He is performing national service.
– What is wrong with that?
– He is not a conscript. He is not in the Services. He is not wearing a uniform, but he is part of the process of national service. The guard on the front gate of the first camp one enters is a non-combatant, but he has a rifle. One has to decide whether a man in the front line who is dropping napalm or is engaged in other duties is a combatant and whether the other hundred men behind him are engaged in combatant duties. An immature person who engages upon military service may find that some other person’s classification of non-combatant duties is to his mind rather loose. He decides in his own mind that he is actually helping against his will in the destruction of other people.
– He decides in his own mind?
– He decides conscientiously. There is no clear line of demarcation. A man may have second thoughts on this matter. I received a letter today from a constituent stating that her first belief in relation to military duty in Vietnam was that both the Chinese and Russians were going to attack Australia and therefore young men should be sent there regardless of their own opinion.
– That is rubbish.
– She learned this from the Liberal Party.
– Order! 1 suggest that the honourable senator connect his remarks to the amendment.
– I suggest that this is really very relevant. She then thought thai the North Vietnamese were Communists and were coming down to threaten Australia. She then changed her mind and thought that South Vietnamese Communists were dropping long range shots on Saigon. She writes: ‘To think I was so blind that I voted for a Government that was going to put these people into national service. I am responsible for having sent these fellows up there against their will and being conscripted into it.’ She is a conscientious objector after the event. When this legislation came in she supported the Government that introduced it. She thought that she was doing the right thing, but after the Government got her vote and there was conscription she changed her mind. This supports our argument for the deletion of these two sub-sections. When a man is engaged in so-called non-combatant duties, or in combatant duties, he can certainly see the situation in which he is involved. 1 suppose our good friend Senator McKellar would like to call such a person a coward or disloyal because he changed his views. We do not hold that opinion. Wc say that a man who is guided by conscience is not disloyal, or a coward or not brave. As a matter of fact, from some of the things I have heard it seems that these men have tremendous fortitude to be able to stand out against current propaganda. Therefore, I support the amendment wholeheartedly.
Senator GREENWOOD (Victoria) [9.3J - The arguments which have been advanced by the supporters of this amendment have been advanced in an atmosphere of unreality. There is a certain plausibility about some of the arguments but in the context of what the Act actually says and what has been the practice under the Act they lose that plausibility and stand, on the basis of the judgment so clearly indicated by Senator Wright, as not to be deserving of acceptance by the Committee. Of course, these sub-sections which are sought to be amended have been in the Act since it was first enacted in 1951. An attack is now made upon them for the first time. The second point I make is that whilst it is theoretically correct, if one looks at the provisions, that a call-up notice could be served upon a person requiring him to attend for service before his application for exemption has been dealt with, there has not been one case in which this has occurred since the Act was introduced.
– How do you know?
– I have made inquiries and that is the basis upon which I make that assertion. If there were any such case, having regard to all that has transpired since this Bill was introduced initially, 1 am quite sure that we would have heard about it. There has been no such case, lt is true, as Senator Cohen said, that the Collett case was one in which a call-up notice was revoked the day before the application for exemption was to be heard, but that was a case of very special circumstances. Collett’s first application had been heard and rejected in April 1965. A call-up notice was issued at a later date. On 4th April 1966 he made a second application and in that period there was a real doubt as to whether there was any genuineness in the application and a desire to proceed with it. When it was quite apparent that there was an intention to proceed the call-up notice was revoked.
Senator Wright has indicated that we are looking at sub-section (3.) of section 29a, which reads:
Sub-section (I) of this section . . .
That is the section which grants exemption to u person who has a conscientious belief that he cannot engage in military service of any form - . . applies to a person who has commenced to render service under this Act only if that person formed the conscientious beliefs referred ki in that sub-section after he commenced to render that service.
Of course the crucial question is: When did the person form his belief? With respect, I think that Senator Wright’s point about this is an extremely valid one. If a person is groping, endeavouring to express his views and not clear in his own mind, I challenge anyone to say that such a person has formed his beliefs. If that be his state of mind and it is after he responds to his call-up notice and commences to render service that he forms a clear view, he is not prevented by subsection (3.) from exercising his rights. I feel it is proper to ask: Can the Opposition point to any person who has been placed in that position? Can it point to a decision of any court which has adopted a contrary view which might give some basis to the contention which is now made? This question of whether or not this provision should be deleted is to be looked at against the practicabilities. There is a theoretical case - a highly theoretical case - which has to be posed against a very practical problem.
I am prepared to concede the theoretical injustice to a conscientious objector to any form of military service who in some way fails to put in his application before he commenced to render service. But, may I say, that is a very theoretical situation. If a person has a genuine conscientious belief of the character that I have mentioned it is unthinkable that he would not exercise his rights. It is all very well to say it could happen, but look at the practicalities of it. A person genuinely holding that view and having if categorised as conscientious knows what he is about, and he would assert his rights and claim his exemption and there should be no doubt whatever. If a person of that character is capable of forming his beliefs he should be under no delusions at all as to what his rights are. When he goes to register he is given a registration form and also a document which sets out a great deal of information about national service. I propose to read what appears under the heading ‘Conscientious Objection’ in that information sheet. The first part of it reads:
A registrant who claims that he holds conscientious beliefs which do not allow him to bear arms or engage in military service may apply to be registered as a conscientious objector. He must first register for national service and should then lodge an application as soon as possible after receiving his Certificate of Registration. The application form enables him to apply for total exemption from military service or for exemption only from combatant duties. The form may be obtained from the National Service Registration Office or any District Employment Office of the Department of Labour and National Service. When completed it should be sent to the Registrar at the National Service Registration Office.
An application to be registered as a conscientious objector is heard and determined by a Magistrate. The registrant is given adequate notice in writing of the dale, lime and place fixed for the hearing.
That is the information he has, and if a person genuinely has a conscientious belief then I think it is unreasonable, in order to bolster up some case, to suppose that he is going to ignore those provisions. Ignorance of those provisions, unwillingness to take action and letting the matter slide is wholly inconsistent with the concept of a genuine conscientious objector. Lel us suppose that this amendment is carried and the provisions are deleted. I think the way will then be much harder for the genuine conscientious objector because the position will be that there will be an open sesame for the man of easy conscience who wants to create trouble for the Service in which he is engaged and who is endeavouring to get out of the Service for whatever reason might appear to him to be appropriate.
– That is the object of the exercise.
– I do not know that I would go all the way with that. There may be the theoretical genuine case, but I feel it opens the way for people to take advantage of the position that would exist if the amendment were carried. Tha situation would arise in which national servicemen who were rendering service might, for some reason, feel that they wished to be released from such service and their only way out would be to apply for exemption as a conscientious objector. At present if they form a belief after they go into the service they are entitled to apply for exemption as a conscientious objector. I have no objection to that, but if these two provisions were removed then they could come forward and say, as undoubtedly many would say: ‘We held this view many years ago. We held it at the time we received our call up notice. We held it at the time we commenced service.’ What is a magistrate or judge going to think of a person who expresses that view? The person is going to be asked: ‘Well, if you held that view why did you not apply, in accordance with the instructions that you were given when you went to register, for exemption as a conscientious objector?’ I do not know what answer would be given but the Opposition’s proposal would certainly create an atmosphere in which people were seeking, for any sort of reason and not a genuine reason, to escape their obligations. That is the real problem which I think the genuine conscientious objector would have to face in the future because there would be the general attitude that people were endeavouring to escape their obligations for reasons that were not genuine. I consider that the arguments that have been advanced, such as they are, are completely answered if one examines the existing provisions and considers what the position would be once those provisions were removed. I believe, with Senator Wright, that if the position is looked at from that point of view it ought to command the judgment of the Senate to reject the amendment.
– In the course of the Minister’s reply to my remarks in connection with this amendment he went to the trouble of telling me and the Senate the reasons for the Act. I do not think I need to be told the purpose of the National Service Act. 1 have declared myself in favour of national service and I support the Bill substantially. I am not one who has exercised a great solicitude for the draft dodger but my conscience tells me that I should at all times avoid being a party to imposing an injustice on any individual. I fear that under the proposed provisions an injustice may be inflicted on the person who fails to apply for exemption prior to his call-up. The Minister said that I was in a dilemma on a particular point. I assure him that I am not in any dilemma, but 1 am considerably puzzled to know - and perhaps if the Minister will nol tell me, Senator Greenwood might - why we should put the case that we are talking about in a different category to that of the individual who forms a conscientious objection subsequent to his commencing to render service.
Senator Greenwood said that wc had made out a theoretical case, lt is good to know that it has some basis, but 1 am sure that if he had had as much experience as I have had in handling matters for the general public he would know that it is not only a theoretical case but a case that can happen. I have handled matters for working men who have been hurt at work, have gone home and laid up and allowed the time for lodgment for a claim for workers’ compensation to expire because of circumstances beyond their control. They have lived alone in rooms; they have had nobody to consult and no-one to get them a compensation form. I have had people seek my help during the days when many people were on relief. I have conferred with thousands of people, and there is an element in the community which needs our protection and our aid. 1 can visualise a young man who is working in the country and who is at the age when he is likely to be called up. He possesses a conscientious objection to fighting in any way. His objection may not be based on a religious conviction. He may not belong to any particular religious faith that objects to war.
– A conscientious objection does not have to be based on a religious belief.
– I know that. I said that he need not be associated with a religious body. He may not read much. He may nol be as bright as the average young man but he has a conscientious objection to war, and this is a valid reason for applying for exemption from national service. However, he gets called up. If he says that he formed his conscientious objection subsequent to commencing his national service he is catered for, but if he tells the truth and says that he had this belief before he was called up, he cuts the ground from under his feet and he cannot claim exemption. I have made this point before and I repeat it in the hope that it may sink in with members on the Government side. Nothing can be done about this young man’s conscientious objection. We have been told that it can be remedied administratively. I do not accept that because the opportunity to provide for such a case is here now in this Bill and such provision can be facilitated by the acceptance of this amendment.
The Minister suggested that if the amendment were accepted we would be undermining the legislation. I do not accept that suggestion because it is certainly not my aim to weaken the legislation. I am sure that other Senators on this side of the chamber have not that aim. I believe that by accepting this amendment we will put these people in one category instead of having two categories. The young man who forms his conscientious objections after he commences to serve is adequately catered for and will not suffer a disadvantage if the section is removed. But the removal of sub-sections (3.) and (4.) will safeguard against any possibility of anyone being disadvantaged because, for some reason, he failed to make application for exemption before he was called up. ls there any difficulty about doing this? I cannot see it. I repeat that I am considerably puzzled to know why these people should be treated differently. They are all conscientious objectors. Whether the conscientious beliefs are formed before or after the call-up does not matter an iota, provided they are genuine. 1 am speaking now only about genuine cases. I have no consideration for the person whose objection is bogus or phony.
Senator Greenwood said that this amendment would open the gate, as it were, to people who wanted to build up a conscientious objection. I submit with all respect that no provision is more likely to encourage people to develop a phony conscientious objection than are sub-sections (3.) and (4.), which cater for the man who develops a conscientious objection after he commences to serve.
– It is still available to him.
– Yes. Let me deal with the person who has no conscientious belief at all. He is called up and commences to render service. After a month or two he has a real tummyful of military life. He hates discipline. He hates having to march and double around the parade ground. He hates having to clean the latrines. He bates many of the duties associated with military life. He says: ‘To hell with this. It is no good to me. From today I will have a conscientious objection.’ The next day he reports to his commanding officer that he has a conscientious objection. He is asked: When did you develop it?’ and he replies: Yesterday.’ He then has the right to make an application and to be heard. He can go through the processes of law, have someone appear for him, concoct a case and state it and perhaps not tell the truth. Yet provision is made for him. The poor unfortunate boy in the bush, who has no-one to advise him, perhaps no parents and no friends, receives his call-up. In his heart he has always had a conscientious objection to war, to fighting and to killing. He commences to serve. But because he has commenced to serve, his right to claim an exemption is gone. Tell me why. Are there two categories of people? They are all conscientious objectors. Why not rely on section 29a, sub-section (1.) and (2.)? They would cater for all these people, whether they have the conscientious objections or beliefs before or after they commence to serve. They all have to prove their case in the courts. I am at a loss to understand why the Minister is so stubborn, on this point. No word but ‘stubborn’ fills the bill. For the life of me I cannot understand why they should be treated differently. Senator Greenwood said: ‘The likelihood of it ever 4—–:– is nil’. He may be right. I suppose the number of conscientious objectors, compared with the number of persons called up, is not large in the aggregate. It is true that this may never happen. But that does not mean it cannot happen. It can happen. The Collett case has been referred to here tonight. Let us forget about the first application.
– You cannot really, though, can you?
– 1 can. He makes a second application and goes before a court at Nambour. The question was whether the police magistrate had the jurisdiction to handle a second application. Whilst the question as to whether he has a right to make a second application is being chewed over legally, he receives notice of a call-up. He is in a dilemma. He does not know whether he should answer the call-up or whether he should wait until the hearing of his second application or at least until a decision has been reached as to whether he has a right to make a claim. If it had not been for strong intervention and intercession on his behalf he would have commenced to serve and his right to make an application for exemption would have ceased to exist.
– That is the point.
– That is so. 1 again ask: Please tell me why the Government intends to have two categories, those who formed their conscientious beliefs subsequent to commencing to serve and those - call them dunces or anything else - who failed to make an application as conscientious objectors prior to being called up. Why have two categories when the Act contains adequate provision to cater for both?
– I intervene now to take the opportunity of addressing myself, but very briefly, to the remarks made by Senator Gair. He has referred to his disappointment that matters have not sunk in, he has yielded to rhetoric and he has referred to stubbornness. I want to show him that this is quite a dispassionate debate based upon a cold judgment of what is practicable. He asks us why we should have two categories. The answer is simply this: We are forming a Service and we give an ample and reasonable opportunity to each individual before he commences to serve in that Service to put in his claim for exemption. He has this opportunity at four stages - registration, balloting, medical examination and call-up notice. Until the call-up notice takes effect he does not begin his service. The line is drawn there because he has been given adequate opportunity to establish his right to exemption.
– Is that the only ground?
– The reason for giving him an adequate opportunity up to that stage is, as was stated by Senator Greenwood, and as was pointed out by Senator Cormack by way of interjection, that he then enters the Service, and the Service is then constituted by individuals like him and others. But matters do not stop there. He is given another opportunity to establish his right to exemption if, after commencing his service, he can show that, after commencing the service, he had formed a conscientious belief.
– If he were a good liar, he would say that anyway.
– I listened with great attention, and with such understanding as 1 could form, to Senator Gair’s remarks. 1 am just putting to the Senate the answer to his argument which 1 think should prevail, especially when it is remembered that he has been thoughtful enough to circulate an amendment which would allow for an appeal, if there were any error committed by the court in the first instance, as to when a man forms or when he has not formed his belief for the purposes of this section. I would suggest quite quietly that, on reflection, this argument ought to persuade the Leader of the Australian Democratic Labor Party.
– I should like to refer to the last matter raised by the Minister. With great respect. 1 do not agree that the question of appeal has anything to do with the point at present under discussion. Senator Gair has foreshadowed that he will be moving to provide some form of appeal. I, too, have foreshadowed an amendment on somewhat similar lines. 1 am hoping that in due course the Senate will see fit to provide a right of appeal beyond that provided in the Act at the moment. But we are not dealing with that question. An appeal is made by a man who is aggrieved by the law or by a decision under the law, whatever the law is. An appeal does not expand anybody’s rights; it only puts right an error in interpreting the law, if an error has been made. We are saying in the proposed amendment that the present law is unsatisfactory in that it is unnecessarily restrictive on a young man who may be caught in this problem through not having applied for exemption before he entered on service. If it is a sensible law, surely the commonsense test that ought to be applied is whether, at the time when the magistrate hears the application for exemption, the magistrate is satisfied that the applicant before him. at the time of the hearing, in fact holds the conscientious beliefs that he says he has. If the magistrate thinks the applicant is not telling the truth, he rejects the application. But if he thinks that the man before him is a genuine conscientious objector, that he genuinely holds beliefs which do not allow him to take part in any form of military service, or which do not allow him to take part in combatant duties, he grants the application. A law that provides for that, surely, is a fair law. The magistrate decides the matter. If there is an appeal to a court of review, and possibly to a further tribunal, as is proposed in the foreshadowed amendments, so much the better. But that does not change the law.
We arc asking that the law be changed to permit the tribunal hearing the application to ask the simple question: ‘Whether he applied before he went into the service, or after he went into the service, does he, as he appears before me now, satisfy me that he genuinely holds these conscientious beliefs?’ If he does, he ought to be entitled to exemption, and the law should allow him that. If he does not, his application fails and he is required to submit to the processes of the law. For my part, the fine distinction that the Act embodies is quite unreal, ft is very difficult for anyone to decide on which side of a point of time an opinion is formed, especially when there is a process of the gradual maturing of a belief. Senator Wilkinson referred to the case of a young man who had practically got to the point of decision - or some people may have thought he had - before he was called up and commenced to render his service. That is a very difficult question. Why should it be the important question? The important question should be: ‘ls this man a genuine conscientious objector?’ If he is, the law should permit him to be exempt in the sense defined in the Act. If he is not, his application fails.
To my mind, nothing said about an appeal touches this point. This is a separate point. Whatever the law is, whatever the definition may be, whatever the requirements of the law may be, it is for C * Senate to decide whether there should be an appeal further than that provided at the present time. I repeat that this has nothing to do with the question as to who should be exempt or whether there should be this false, artificial distinction between beliefs formed before and beliefs formed after some point of time.
– Let me say at the outset that at all times I have had the greatest admiration for the members of the legal profession. I was very interested tonight to notice that the Minister relied upon a certain legal interpretation of the word ‘formed’. I would have thought that consideration should be given to the evolutionary period when the person concerned was in the process of forming his belief. But I am not competent to dispute the Minister’s view on this point. He is a legal man. Suffice it to say that I have been in courts and heard eminent legal men offer sound legal opinions as to one interpretation of a particular word: I have also heard opposing counsel offering equally persuasive opinions expressing a different opinion as to what was the correct interpretation; and the judge has finally come down with a third interpretation of the word. However, in view of the fact that the Minister is supported by other eminent counsel here tonight and in view of the fact that no-one seems to be arguing that the interpretation offered is incorrect. w« must at this stage accept the argument that the applicant must be firmly convinced of his beliefs:
Let us examine section 29a of the Act. It relates to persons who qualify for exemption. Whether the applicant bases his case on sub-section (1.), (2.), (3.) or (4.), he must have genuine conscientious beliefs. To qualify for exemption, it is essential that he have genuine conscientious beliefs, lt is- of no use to argue whether he may or may not have them. He must have them. Whether he has the conscientious beliefs is decided by a judge. The judge hears each case individually and he has to be convinced that the applicant concerned holds genuine conscientious beliefs. We all remember the argument we had the other night over the point that whatever the conscientious beliefs may be, they have to be firmly established conscientious beliefs.
Every honourable senator who has spoken has expressed sympathy for those who hold conscientious beliefs and has argued that such persons should be given some consideration. I submit that everyone who establishes his conscientious beliefs under section 29a is justified in having those beliefs recognised. Senator Gair has suggested that sub-section (3.) caters for the man who forms his beliefs after he commences service. It does not. The position is quite the reverse. A man who forms a conscientious belief, whenever he forms it, is catered for by sub-section (1.). Subsection (3.) imposes a limitation. The limitation is dependent upon the meaning of the word ‘formed’. Sub-sections (3.) and (4.) are not intended to provide benefits to conscientious objectors. Their purpose is to limit benefits, or to take benefits away from someone. If Senator Wright’s interpretation is correct, the purpose is to take away benefits from someone with a genuine conscientious belief.
– He could develop that belief afterwards.
– lt has been suggested that the provisions are intended to apply only to people who do not lodge their application for exemption before call-up. They would be the only people covered by this provision, if Senator Wright’s interpretation of the word ‘formed’ is correct. As I have said, eminent legal people have been known to be wrong in their interpretations from time to time. If Senator Wright is correct on this occasion the purpose of subsections (3.) and (4.) is concerned only with people who have not made application for exemption before being called up for service. It could happen that such people did not have sufficient time.
We are dealing with a wide range of people of varying degrees of literacy. Some people may hesitate, some may delay to seek advice, and some may be afraid to make application for exemption. It may be that some young men come to realise only after being called up for service that opportunities to apply for exemption were previously open to them. That could happen, despite the fact that they had received a publication setting out details of their rights. They may be capable of reading the publication but could neglect to do so. People in that position have missed out only if we accept Senator Wright’s interpretation. It seems they are the only people to miss out. Why should they miss out?
It may be found after legal argument that a decision is given in favour of a different legal interpretation of the word ‘formed’ from that given by Senator Wright. Many suggestions have been made tonight that a belief is formed after a series of processes, that a vision does not come overnight. This has been said to be a consideration in determining the meaning of the word ‘formed’. If Senator Wright’s interpretation is correct, many people will miss out. The. benefits of sub-sections (3.) and (4.) apply only to people who have a conscientious belief but it is clear from Senator Wright’s interpretation that aid is to be refused to people who do hold conscientious beliefs. For that reason we are seeking the deletion of subsections (3.) and (4.).
– 1 do not want to force the issue but I suggest to honourable senators that we might try to expedite a vote on this amendment.
– I will not take very long. I wish to answer the arguments raised by Senator Wright and Senator Greenwood about the practicalities of the situation. I completely agree with Senator Cavanagh in maintaining that section 29a (3.) is completely restrictive in its application. The arguments advanced by the Minister and by Senator Greenwood fall down completely when it is realised that we are dealing with matters of conscience affecting young men of merely 20 years of age, who are not considered to be mature enough even to cast a vote at Federal or State elections. But on a matter of conscience they are supposed to have formed a belief prior to being called up for service. Senator Greenwood said that we have made out a plausible and theoretical case but have not made out a practical case. I suggest that honourable senators who have supported the proposed amendment have put forward not only a plausible and theoretical case but also a very practical case.
– That is not the only section that has been in the Act since 1951.
– Exactly. There have been a lot of sections in the Act since 1951. Attacks are now being made on many other sections because, as a result of the introduction- of conscription in 1964, these cases are being brought to our attention and to the attention of organisations and institutions throughout the Commonwealth. Whilst this is the first attack made in this Parliament on this particular section, public institutions and organisations have offered a great deal of criticism about this and other sections.
– The attack of your Party began only because of the Vietnamese conflict.
– ls that not the time when conscription began? Is not that the purpose of this section? Is that not why the Australian Council of Churches has taken the matter into consideration and has been considering it for some time? That has happened because young men who conscientiously object to serving in the Army in Vietnam are being conscripted by this Government and are being sent to the jungles of Vietnam to fight while members of the Government parties of military age - particularly in another place - have not volunteered to serve.
– I thought we had all this out last week. They can go into the Citizen Military Forces.
– Let us face the facts. The practicalities of the case are beyond doubt. I have cited the instance of a young man who, because of the. sincerity of his religious persuasions, cannot make application for exemption from service. He is barred by the provisions of the Act unless he wilfully and deliberately lies to a magistrate. His conscience will not allow him to do that. That is the type of person who is barred from applying for exemption from service while section 29a (3.) remains in the Act. Having regard to the very plausible and practical arguments put forward by Senator Cohen, Senator Gair, Senator Cavanagh and other honourable senators who have spoken in this debate, I believe the Government should heed the amendment proposed by the Opposition.
– Senator Wright and Senator Greenwood have raised some points to which I think I should refer. As 1 understood Senator Wright, when he last intervened he said that he was speaking only to answer points which had been made by Senator Gair. I am still at a loss to understand in which way the points made by Senator Gair have been answered. As I understood Senator Gair, he asked why it is that a man who is doing military service and who can establish that he holds a conscientious objection to military service has to prove that he did not have that conscientious objection at the time he commenced his military service. I think that is a reasonable and proper question. I do not believe that we have so far received any answer to that specific point. I should have thought that one of the criteria of good law would be that one could point to a reason for the existence of the law. A very complicated procedure is being imposed on people who are performing military service and find that they have some conscientious objection. At the same time no reason is given for this complication being added (o their other problems. Senator Greenwood said that the points we have made are theoretical. I assume that the honourable senator means hypothetical. This may well be so. Surely the purpose of a good law is to cover all hypothetical eventualities, lt is a bad law which is found to be inadequate when some subsequent incident arises which proves to be outside the ambit of the law. The purpose of the amendment and of what has been said from this side of the chamber is to ensure that the law does cover those instances which may arise, even if it can be shown - and I do not believe that it can be shown - that no such instances have arisen in the past.
The three categories of persons who are not required to perform military service are those engaged in certain forms of occupation, those who are medically unfit and those who have a conscientious objection. It would seem to me to be just as logical to say that a man can be discharged from military service only on the ground of some medical unfitness if he can prove that he was not medically unfit at the time that he commenced his service as it would be to call on a person to prove that he should be discharged from service because he has a conscientious objection only if he can establish that he did not have that conscientious objection at the time he commenced his military service. The person who is performing military service is required to prove to the court that he does have a conscientious objection. It seems to me to be a palpably absurd situation for the court to say: ‘Yes, we are perfectly satisfied that this national serviceman does have a sincere conscientious objection to military service, but because he has not been able to prove that he did not have that conscientious objection at the time he commenced his military service we are unable to do anything about it and he will have to continue his military service’. Two people could have identical conscientious Objections to military service. One of them in some way or other might establish that he had acquired that conscientious objection only recently. The other, for some reason - and all kinds of instances have been referred to by Senators Gair and McClelland which could cause this sort of thing to happen–
– That is the whole point. Not one of those so-called reasons as to why a genuine objector would fail to take his point is very convincing.
– I draw Senator Greenwood’s attention to the fact that this situation can arise only if the objector has established at the time he comes before the court that he does have a genuine objection. Senator Greenwood is asking a magistrate to say: ‘Yes,I am satisfied you have a completely genuine objection.I have never been more impressed by any conscientious objector who has come before this court. I realise that you are a total and complete pacifist. I am entirely satisfied as to that, but for some mysterious reason apparently you had that objection at the time you commenced your military service and did not make an application to be exempted from military duties and for that reason you have to go on performing your military duties.’ I cannot imagine anything more fanciful or more fantastic than that proposition. I believe it makes bad law and a mockery of the Act. For that reasonI trust that the amendment will be carried.
That proposed new clause (Senator Cohen’s amendment) be inserted in the Bill.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . . . 2
Question so resolved in the affirmative.
Proposed new clause 13b.
– I move:
In addressing myself to this amendment 1 want to recapitulate briefly the arguments 1 advanced when dealing with this matter during the second reading debate. 1 said then that the Opposition felt that the Government’s approach to national service was completely inadequate and failed to provide an opportunity for young men who, whether as a matter of conscience or otherwise, were opposed to performing military service at the present time but were prepared to perform some kind of civilian service of a national or community character, public in its general impact, in a form approved by the Minister for Labour and National Service who administers the legislation. We believe that there is at present a great reservoir of talent, ability and potential in Australia’s youth which should be provided with some kind of reasonable practical non-military alternative so that national service can be accepted in its widest sense. There is no such alternative in the present legislation.
This amendment, we suggest, is in line with the recommendations of the Australian Council of Churches to which the Minister referred in his second reading speech. Those recommendations contained a plea for recognition of voluntary non-military humanitarian national service open to all as an alternative to military service. Our amendment is designed to incorporate such a non-military humanitarian alternative in the Act. We are not the first or the only people to suggest that, lt has been suggested, for example, by the Returned Services League. The national executive, after a recent meeting, suggested that the scheme of national service should be expanded progressively to make provision for alternative service in the Citizen Military Forces and in civil undertakings so that eventually all young men would be rendering service of some kind to Australia and so that those people who had a genuine objection to military service would still have an opportunity to serve their country in an alternative field. Our amendment is designed to test the position and to challenge the Government with the necessity for providing some non-military alternative.
Many forms of service have been suggested. lt is nol necessary, perhaps, to particularise them because in our amendment we contemplate that the Minister should have the say in deciding what forms of non-military service he would be prepared to approve as an alternative to a young man’s serving in a military capacity in the armed forces.
– Do I take it that your amendment indicates that every one of those being called up for military service could, if he wished, take alternative service?
– Yes - an alternative form of national service. It involves a radically different conception of national service.
– No defence force whatsoever is your conception?
– Nobody said thai.
– That is what you are saying. That is what the amendment says.
– No. What we arc saying is that there should be an acceptable alternative for those who choose such an alternative. If the honourable senator reads the words of the amendment carefully he will see that it has nothing to do with “no defence force’. It says:
Any person who is called up for military service may choose to render service in a community or national project in Australia or overseas in a form approved by the Minister as an alternative to military service.
If this amendment became a matter of policy embodied in the Act it would be for the Minister to say what forms of service he would approve of.
– I put it to you that every one of the individuals could seek - -
– The honourable senator can make his own speech on this amendment; he is quite capable of doing that. I am saying that that is not what the amendment means. The honourable senator can talk about that if he wants to. I am telling him what the Opposition’s amendment means. It means that young men who are called up may have that choice, but it is not an open choice, lt is a choice either of military service or of an alternative form of service as approved by the Minister. The Minister may approve of only two alternative forms, or he may approve of twenty. If this amendment were carried and became part of the policy of the Act, he might be prepared, in his discretion, to deal ad hoc or singly with particular forms of service or he may say: 1 will approve only some sort of peace corps, some sort of other international community aid abroad’ - or something of the sort, some kind of voluntary, humanitarian service with a national component which would appeal to him as being a reasonable alternative to the performance of military service.
– ls it not a discretion which could operate unfairly?
– lt would be a discretion that we would be prepared to give to the Minister. If he exercised it unfairly. Capriciously or arrogantly he is always subject to being criticised in this Parliament or elsewhere. You have to take a risk with any form of scheme. We are proposing an alternative approach to the problem of national service. There is so much to be done. There are so many young men who hate this particular war and do not want to be involved in it. As 1 said during the second reading debate, instead of treating them as criminals, putting them in gaol, calling them up again and again and grinding them into the machine, why not unleash some of their creative energies? Why not let Australia have the benefit of their talents, their imagination and their ability? That is all we are talking about, lt seems to us that at the present stage we are in something of an impasse nationally because so many people genuinely object to service in the war in Vietnam. That may not make them conscientious objectors in the sense in which the Act defines the phenomenon of conscientious objection. In any event, the Opposition’s amendment, which was designed to broaden that category, has failed to be carried in the Senate or in another place. So this seems to me to be a proper approach to the situation. Surely we do not want to dry up this talent. Wc do not want to force it against its will into taking part in a war that a section of the community, at any rate, does not approve of. These people feel this. They are genuinely anxious to do something for their country by way of national service in a form acceptable to the Minister. We think it is about time that the Government faced up to this challenge and moved to change the general policy and nature of the Act in this direction. That is the basic reason why we move this amendment which I hope will receive support.
Senator McMANUS (Victoria) [10. 10J - Briefly, the Australian Democratic Labor Party is unable to support this amendment. We have shown, by the vote that has just been taken, our willingness to except people who, we believe, have a claim for special consideration, but this amendment, as Senator Webster pointed out by interjection, could be carried to a point at which the whole national service scheme would become farcical. It would mean, in effect, that anybody could get out of national service. Such a proposition, of course, could not be accepted by the Senate in any circumstances, and we would not give it our approval. I also find unacceptable the portion of the amendment which reads: . . may choose to render service in a community or national project in Australia or overseas in a form approved by the Minister as an alternative . . .
Suppose the Minister approved no alternative. The situation then would become farcical because we would have a provision which would not operate to help anybody. Our view is that this is a most ill chosen amendment, and for this reason the Democratic Labor Party will vote against it.
– I invite the Senate to give a little serious thought to the proposition advanced by Senator Cohen. The honourable senator has advocated a principle that applies in other countries solely to genuine conscientious objectors. In England and the United States, where alternative service of this kind is provided for, it is available only to people who have established that they have a genuine conscientious objection to military service. In those countries, when a person has established before a court that he has a genuine conscientious objection to any form of military service, he does not go scot-free. He is not totally exempt from military duty as is a person in Australia who similarly shows a genuine conscientious objection; but, having established his conscientious objection to military service he is then entitled to render alternative service - the kind of community or national service that is mentioned in the amendment.
The number of men in Australia who genuinely conscientiously object to participating in the defence of their country, if necessary by military means, is, fortunately for the manhood of the country, relatively small. Other countries having given their genuine conscientious objectors the opportunity of alternative service, Senator Cohen blandly puts before us a facile proposition couched in terms that would allow any person called up for military service to render alternative service. This gives me cause to wonder just how deep is the understanding of the Australian Labor Party of the need for military service in the defence of the country. This amendment is so worded that it would confer on any person called up under a compulsory scheme the right to opt out at his own election if he decided to perform community or national service of a kind approved by the Minister. This would disrupt the whole basis of the Government’s legislation as it has existed right from the time when the original legislation was brought in in 1964. Anybody, remembering the belligerency that has existed at times in parts of the Pacific and mindful of the need for Australia to have a force adequate to defend the country, would look askance at people who blandly suggest that a man who is called up for national service should have the right to opt out of military service and choose another form of service. It must be remembered that after medical examination, the ballot and other conditions have been complied with, of the 326,000 young men registered for national service so far only 24,000 have been called up. If you dissipate those 24,000 by offering them an alternative form of service you will weaken the whole basis upon which they have been selected by ballot and you will distribute the obligation to render military service over others in the 326,000 registered for service. That is not a major matter. But Senator Cohen must know that after registering for national service and before participating in the ballot any man has the option to elect to undertake, not other national or community service, but service in the Citizen Military Forces. Senator Cohen is not satisfied with that provision; he is not satisfied that between registration and ballot a man has the option to render another form of militory service, that is, in the Citizen Military Forces.
Senator Cohen would give each man called up the right to elect to render another form of service, which the honourable sena tor calls national or community serviceservice which is not military service. The unfortunate and stern fact is that it is military service that the country needs for its defence. Other circumstances would enable us, if we saw fit, to direct that people render civilian service in national and community project’s, such as medical service, missionary service or civil works service, all of which are laudable in themselves. But nothing would prevail upon this Parliament to lead it to pass a law giving a Minister the right to create such a force and to direct that people may serve in it. Senator Cohen seeks simply to provide an escape hole. Why does he do this? He seeks the provision of an alternative to military service, notwithstanding that the individual may have no conscientious objection to military service. I hope that we in the Senate, realising the need of a force for the country’s defence, still have sufficient fortitude to vote strongly for strengthening the system of military service and that we will not accept this loophole, which Senator Cohen has so loosely put before us.
– Senator Wright invited the Senate to give a little thought to this matter. The Australian Democratic Labor Party has told us it is unable to accept our amendment. Senator Wright asked how strongly the Australian Labor Party felt the need for military service. Often when we on this side of the chamber submit propositions we are accused of being politically biased. Senator Wright should be informed of opinions other than his own. I want to refer the Committee to a meeting of the Young Liberal Movement held in Tasmania on Saturday last. A report of the meeting in yesterday’s ‘Mercury’ stated:
The Tasmanian division of the Young Liberal Movement will try to convince the Federal Government that by introducing compulsory national service for all 20-year-old Australian males, it can cure three national headaches.
While the convention supported the principle of conscientious objection to military service, it felt service in non-military aid or development could not be objected to on religious or ethical grounds.
The newspaper report also stated:
The 100 delegates decided to ask the Government to introduce legislation to make two-year national service compulsory for all 20-year-old males,but to give those enlisted the choice of serving in:
The armed forces.
Peace corps in South East Asia, or
National development bodies in the underdeveloped areas in Australia.
– The young Liberals were sensible enough to say that they would seek to persuade the Government.
– There were 100 delegates at the meeting. The point is that they are young Liberals, not old dead beat Liberals. They are young people and they are trying to defend themselves. They are probably without a vote but nevertheless they are the ones affected by this legislation.
– They want some form of alternative service too.
– Yes, they want an alternative form of service. They adopted three headings related to this legislation. We of the Australian Labor Party have been trying to drill these three matters into the heads ofthe’old contemptibles’ but with little result. Even the Democratic Labor Party has forsaken its previous stand on this matter. If the young Liberals want this and if the young Labor supporters also want it I feel that the Government should look to its laurels. Whom does the Government think it is fooling over this matter? I ask the Minister for Works (Senator Wright), who is in charge of this Bill: Where are the Royal Australian Air Force and the Royal Australian Navy going to get their volunteers if the Army is to have first claim on all the young able bodied men whose names come out of the barrel? If they are sent to the Army for military service what about the Navy and the Air Force? Are they not to get their fair share? Those Services like volunteers - men who, of their own free will, decide on a career in the Services; men who know of the implications and advantages of a career in one of the Services. The Government is not insisting that the Air Force and the Navy take their fair share of the national servicemen who are called up for service.
The Minister spoke of opting for community service. After all, community service is the background of our whole economy and. to extend that thought, the background of our defence. We must have roads, transport systems and the like for defence purposes. It is possible, even probable, following along the lines of recent declarations by the Prime Minister (Mr Gorton) that this is where our strength will be in relation to home defence. The option of going into national development organisations and the like in the northern parts of Australia could provide for persons with conscientious objections, an alternative to bearing arms. The Minister asks us to look askance at people who wish to opt out. He spoke of people having fortitude. I believe that the Government is going round in a complete circle in its thinking in this regard. It seems to have the attitude that if people do not follow along the lines that are prescribed by this legislation they lack fortitude. If the Minister considers that the 100 young Liberal delegates in Tasmania can be classified as not having sufficient fortitude to support the Government, he ought to return to his home State and have a look at the people he represents in this Parliament.
– I find it difficult to follow the rather tortuous arguments of Senator O’Byrne. He referred to the recommendations of the Young Liberal Movement in Tasmania. I invite him to have another look at the resolutions passed by the Young Liberal Movement. This bears no resemblance whatever to the proposal that we are discussing. The Young Liberals, for whom I have admiration, propose that all young men aged 20 years be called up - not a limited number - and that alternative service be provided for all young men. I do not know whether Senator O’Byrne was supporting this resolution passed by the Young Liberals, but I suggest to him that although he may be supporting it the trade union movement would not support it. If we are to put these young men to work on national projects, which could include the building of the Ord River Dam and road building in the north, we would have great labour camps which would not meet with the approval of those who support the Australian Labor Party. I think in fairness we should understand clearly that the proposal that we are debating bears no resemblance to the proposal which was put forward by the Young Liberals. I cannot understand how Senator O’Byrne could try to connect the two.
That the proposed new clause 13b (Senator Cohen’s amendment) be inserted in the Bill.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . 2
Question so resolved in the negative.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Temporary Chairman do now leave the Chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly)
The DEPUTY PRESIDENT (Senator Drake-Brockman) - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
Question resolved in the- affirmative.
Senate adjourned at 10.31 p.m.
Cite as: Australia, Senate, Debates, 11 June 1968, viewed 22 October 2017, <http://historichansard.net/senate/1968/19680611_senate_26_s37/>.