1st Parliament · 1st Session
The President, took thechair at 10.30 a.m., and read prayers.
– I desire to ask you, Mr. President, whether, in connexion with the prorogation ceremony, which we expect to take place to-day, you will either make provision for the removal of the table from the centre of the Chamber, and the admission of honorable members from another place to the floor of the House, or reserve the whole of the back galleries for their accommodation?
– I do not consider it within the scope of my powers or duties to permit the members of the House of Representatives to sit on the floor of the House. In fact, I think that they would very much object if I were to ask them to do so. Arrangements have already been made to reserve all the space in the back galleries for members of the House of Representatives, and I understand that so many honorable members have gone home that there will be ample room for all those who are likely to attend.
– I wish to raise a question of privilege. Yesterday, when Senator Best was in the chair, Senator Neild and another honorable senator rose in their places–
– I rise to order. When a certain matter is alleged to have arisen in committee, it cannot be considered in the House unless it has been reported to the House by the Chairman.
– That is so. If the occurrence took place in committee the House can have no cognizance of it unless it is reported by the Chairman. The Chairman of Committees is the proper person to deal with the matter.
– In the absence of the Postmaster-General, I desire to ask the Vice-President of the Executive Council : - Has he any knowledge of a statement having been made by a high official in the telegraph branch of the Post and’ Telegraph department of the General Post-office, Melbourne, that the minimum wage of £110 would hot be paid to the female officers in the Post and Telegraph department, as provided in the Public Service Act ; that before the minimum wage would be paid to any female officers a recommendation would have to be made by the heads of the department, and that no such recommendation would be made, and no examination would be held ? Has any officer of the Melbourne Post-office any authority for making any such statement?
– The Post-office officials have no knowledge of the matter referred to. No official had any authority to make any such statement.
Bill read a third time.
In Committee (Consideration resumed from 9th October, wide page 16673).
– Before we enter upon the consideration of the Bill I desire to mention a matter which has caused me very considerable regret. I refer to ail incident which occurred in committee yesterday. I have no power in the present committee to deal with the honorable senator whose conduct is in question, but if I had* I should certainly demand an apology for what I regard as discourteous treatment.
– I rise to order.
– When I have sat down. If I had the power I should certainly deal with what I regard as discourteous treatment of the Chair. Senator Neild saw fit, on the occasion to which I refer, to hastily retreat from the chamber, at the same time exclaiming - “ If I cannot be seen, I shall leave the chamber.” I felt that that was rather a/ serious reflection upon mc, but as the honorable senator gave me no opportunity to call upon him to withdraw his statement at the time, I feel that I am powerless. I only mention the incident now with the very sincerest regret, and it is with special sorrow that on this the last day of the session I feel impelled to make a complaint of this kind. I hope that even at this late stages I may appeal to the experience of Senator Neild, if not to his military appreciation of discipline.
Honorable Senators. - Withdraw.
– This is entirely out of order. I desire to take a point of order.
– The honorable senator cannot raise a point of order against me.
– I take exception to the whole proceeding as irregular. I submit that this committee was appointed to deal with a certain Bill.
– I do not desire to hear the honorable senator.
Clause 1 agreed to.
Clause 2 -
– I think the Vice-President of the Executive Council will recognise that this clause is unduly limited. If it were desired to bring a suit to enforce the performance of any statutory duty either by the Commonwealth or any of its officers the words “ any claim iu contact or in tort “ would prove insufficient to cover such a case. There is no provision in the succeeding clauses which would meet this difficulty. I therefore move -
That the words “or seeking to enforce the performance of any duty by tho Commonwealth “ be inserted alter the word “ tort,” line 2.
– I cannot assent to this amendment. I think the whole question involved, and, indeed, the form of this clause, is perhaps much more important than [honorable senators imagine. We are not dealing . here with the case of a State which has a Parliament making laws in the ordinary way, and courts in the State administering those laws. A court exercising federal jurisdiction, whether it was one of our own courts, or a court endowed by us with federal jurisdiction, would have very much larger powers - immensely larger - than any State court can possibly have, because it would be in a sense above Parliament, in so far that it could interpret the Constitution. Like the Parliament the courts will be established under the Constitution, and the Constitution may have to be interpreted by the courts. Any court exercising full federal jurisdiction would have the right to declare that the action of Parliament - either a State or the Commonwealth Parliament - in passing a particular measure was null and void. That is a much larger power than any State courts have, and it is given under the Constitution for the express purpose of creating some authoritative body which can settle questions arising between the Commonwealth and the States, or between State and State.. The jurisdiction of the Federal court will have a much higher and much wider significance, and affect much larger interests than that of any State court. There is no doubt that every facility should be given to the courts created by the Commonwealth Parliament to exercise all the powers conferred upon them by the Constitution. I am one of those who think that when we establish our own courts, and make the Commonwealth liable to be sued, the Commonwealth ought to be placed upon the same footing as any ordinary individual. But we are not in that position now. We have not yet established the High Court, and we cannot do so until some time after the commencement of next session. Until then the Government think it right that certain provision should be made to enable actions and claims to be enforced against the Commonwealth. We are adopting the temporary expedient of submitting the Commonwealth - that is the people of Australia - to the jurisdiction of the Supreme Courts of the States. It may be the jurisdiction of any State court. Take, for example, the case of the Queensland Supreme Court, which was mentioned by Senator Stewart last night. For the purpose of bridging over this temporary difficulty, the people of Australia are willing to submit their rights and claims under any of our Commonwealth legislation to the decision of the Supreme Court of Queensland, which, although established in Australia, and forming a part of it, is a tribunal which is not under the control of the Federal Government, or subject to the resolutions of the Commonwealth Parliament, and is, therefore, in a sense outside the provisions of our Constitution. I hold that there ought to be a difference - a very great difference - between the manner in which authority is vested in a court constituted as that is, and the manner in which it is vested in federal courts by our own Parliament. I do not wish for one moment to detract from the independence which must necessarily be associated with the Judiciary under either the Commonwealth or the States. The Commonwealth will have control over its Judiciary only by resolution of both Houses. But it will have no control whatever over a State Judiciary. I do not mean to suggest that there is the least want of confidence in the Judiciary’ of any State. At the same time some distinction ought to be made between the manner in which the Commonwealth submits to the jurisdiction of a court, which is under its own control, and that in which it submits to a court constituted for another purpose. In connexion with this matter I may mention that I have had a conference with the AttorneyGeneral, and I can scarcely imagine a case in which the Commonwealth would refuse to allow an action in contract or tort to be taken into a State court. But we think that we should not hand over this jurisdiction without reservation to the State courts. I shall now deal with the question of whether we should give to the States courts, not only jurisdiction in cases of contract or tort, but power to enforce the performance of a duty by the Commonwealth or any of its officers. There is no doubt that under the amendment proposed, the States courts would have the power, not only to enforce the performance of a duty by the Commonwealth or any of its officers, but to prevent any officer from carrying out a duty. That is to say, there would be not only the power of mandamus, but the power of injunction. ls either of those powers are embodied in this Bill. They have been expressly omitted, be- cause whilst we think it right that where a wrong has been done by the Commonwealth provision should be made to enable any claim to be enforced in the States courts, we do not think we ought to place the officers of the Commonwealth under the jurisdiction of those tribunals in such a way that thev could be forced by an order of the courts to carry out some statutory duty.
– Why should not officers be so liable 1
– For the reason which I have already pointed out. The people of Australia should not submit themselves to the order of a State court over which they have no control. I admit that it would have been very much better if this matter could have been dealt with in the Judiciary Bill. That, however, has been impossible this session. The Government think that until the High- Court is established, we ought to grant the concessions provided in this Bill, but we ought not to vest the States courts with power to make orders either preventing the Commonwealth from undertaking some act or compelling it to perform some act. That is the reason why I object to the amendment, which seems to me to involve the whole question of our constitutional rights. I do not think that we ought to hand over those rights to the jurisdiction of the States courts, except in so far as that course is reasonably necessary. Certainly we should not do so in the way indicated in the amendment submitted. The Government are willing to go to the length they have gone in this Bill, but no further.
– What is the use of a temporary measure ?
– Every cause of action in which one seeks a remedy in damages, comes under the definitions of contract and tort. The Government draw the line in cases in which the wrong that lias been done is reparable in damages. We are not willing to place our officers under the control of the States courts, so that an order may be made compelling them to carry out a certain duty, or preventing them from so doing. That is the reason why I object to the amendment. I regard this matter as one of very great importance. We are charged with the duty of seeing that the Commonwealth is governed by the provisions of the Constitution. Those provisions set out that the great powers which under that instrument of government are vested in Federal” courts shall be exercised only by tribunals under the control of this Parliament.
– Would the case of Hannah v. the Post and Telegraph Department come within the purview of this Bill?
– Yes, because that is a case in which the wrong, if any, is reparable in damages. We are all aware that in the future very important questions connected with jurisdiction and the right to pass certain statutory laws are likely to arise. Then again a question may be raised as to the rights of the States Governments in regard to the distribution of revenue under the Constitution. I have no particular case in my mind : but let us suppose that some State took up the position that it was not getting from the Commonwealth its share of the surplus revenue, or objected to the principle upon which that revenue was being distributed. That is a case which ought not to be submitted to the jurisdiction of a State court, and we ought not to put -the Treasurer in the position of having a mandamus granted against him compelling him to pay over to a State a particular sum of money. Of course, when we constitute our own courts, that is a power which we shall vest in them ; but for this temporary purpose we ought not to hand over the power proposed to any State court. 1 have spoken upon this matter at greater length than I intended. I repeat that the Government are willing to assist in securing justice in such cases as I have mentioned, and to go the length to which they have gone in the Bill, but no further.
Senator MILLEN (New South Wales).The Vice-President of the Executive Council has said a great deal in regard to the intent of- the Constitution. He has not, however, denied that the Constitution clearly sets out that a court shall be established to enable those who imagine themselves aggrieved to proceed against the Commonwealth Government. He does not deny that that right ought to exist, but declares that jurisdiction for the purpose ought not to be vested in the States courts. Of course it would have been very much better if the High Court of Australia had been constituted during the present session. But the question involved here is whether the States courts shall be availed of to the fullest extent. The amendment submitted by Senator Clemons would enable a litigant to take the same action in the States courts as he would be able to take in the High Court if it were in existence. Because of the failure of the Federal Government to constitute a High Court, individuals are to be prejudiced ; and that, I contend, is not reasonable.
– We cannot help it.
– An individual who is aggrieved by action or absence of action on the part of some official of the Commonwealth, is to be punished and penalized because the Federal Parliament has not constituted a High Court. When it becomes a question between the individual and the Crown, we ought to be careful to protect the individual. The Crown can take care of itself, and I see no reason why the scope of the Bill should not be extended in the the direction desired by Senator Clemons. I could have understood the Government if they had said that they were not prepared to submit federal matters to the review of a State court, but the proposal ‘is to submit certain federal matters.
– Not constitutional matters.
– We never know at what moment questions may not arise under the Constitution.
– If I saw a federal officer doing, or refraining from doing, some action which affected me personally, should there not be some tribunal to which I could appeal 1 According to Senator O’Connor, I must stand by and witness an action which may irretrievably injure me, because there is no legal authority to restrain or compel.
– But we must not give power to a State court to compel, for instance, the Treasurer of the Commonwealth to make a certain distribution of the surplus revenue under the Constitution.
– Could such a case not be heard by the Supreme Court of another State ?
– If it is only the States of which Senator O’Connor is afraid, the difficulty could be met by leaving the right of application to individuals, and requiring the States to hold claims over until a High Court had been constituted. But I am not now referring to big questions of State, which are not likely to occur, or, if they do, are not likely to mature in the few months which will intervene before the High Court is constituted. It is a monstrous shame, when legislating for the preservation of the rights of the individual, or for the rights of thecommunity, to attempt to pass a Bill which contains any limitation. The whole question is whether an individual ought to have the right to apply for an injunction or for a writ of mandamus to compel or restrain a federal officer. Senator O’Connor does not dispute that the individual ought to have this right, but contends that it must be exercised, not in the States courts, but in the Federal High Court, when constituted. If a State court is fit to be trusted with the settlement of claims in contract or in tort, why cannot it be trusted in the further matter? If, on the other hand, we cannot trust a State court in the matter of granting injunctions or writs of mandamus, such a court ought not to be trusted to deal with claims which may involve many thousands of pounds.
– We have had an interesting legal discussion between Senator O’Connor and Senator Clemons as to the effect of this clause. I feel somewhat diffident in dealing with what is a purely legal matter ; but during the discussion several points have arisen which I think I understand, and I desire to give an intelligent vote on the amendment. This measure is of a temporary character, introduced to give power of action against the Federal Government in the States courts until the High Court is constituted. But from the arguments on both sides, it seems to me that the effect of the clause as it now stands is of a very restrictive character. If the Bill is not to give the relief we intended, it would be better not to pass it, but to wait until next session, when no doubt we shall have the Judiciary Bill before us. There will then be complete jurisdiction in all questions affecting either individuals or States as against the Commonwealth Government. I feel inclined to support the amendment, especially in view of the fact that Senator O’Connor declares that he has the utmost confidence in the State courts. If the amendment be not carried, then, in my opinion, the Bill practically becomes useless. Without the amendment, the Bill will give jurisdiction on only minor matters, and afford no relief to persons who have proper legal claims against the Government. This is a matter which lawyers more particularly understand ; but I have come to the conclusion that I ought to support the amendment.
– The Bill as submitted is undoubtedly in the right direction, and will confer privileges, which, from the initiation of the Commonwealth, have been required. But after listening very carefully to the address of Senator O’Connor, I must confess, as a layman, I do not think there are all the dangers which he seems to anticipate from giving a State Supreme Court powers beyond those proposed in the Bill.
– As an illustration - Should power be given to stop the Victorian Treasurer from making certain payments ?
– Who would demand that?
– That is not the question : but anyone might demand it.
– In the illustration given Senator O’Connor goes the full length of his tether, but in the Bill he only goes half the length. Could he not go a little further without reaching the dangerous length to which he has referred ? I can understand that an impecunious State might seek to bring an action against the Federal Treasurer, and in a case of that sort the Supreme Court of the State interested should not be allowed to adjudicate. But there would be no difficulty whatever in providing for the case to be tried by the Supreme Court of another State which was not directly interested. I am not, however, arguing that we should go so far. There is considerable force in what Senator O’Connor says, although, looking at the Constitution,
I do not see that there was anticipated any necessity for putting any limitation on the State courts. Section 77, sub-section (3) gives power to vest any court of a State with federal jurisdiction.
– The honorable senator will recollect that a State court so invested becomes part of the federal court system, in which there is always an appeal to the High Court. The final control is in the Federal High Court.
– Seeing that the Bill is intended to operate for only a few months, and assuming that the States courts are given jurisdiction beyond that provided for in the measure, it would surely be easy to reserve a right to appeal to the High Court directly the latter is appointed, which, I suppose, will be early in next session.
– In the meantime, if a mandamus be granted compelling a federal officer to take some action, the whole thing is over before the High Court is constituted.
– The two points are - the writ of mandamus and the injunction. From experience we know that it is a very serious matter to deprive citizens of the right of applying for either a writ of mandamus or an injunction. Not many years ago a most important question arose in Victoria, and it was only by means of a mandamus that justice was obtained. While fully recognising the anxiety of Senator O’Connor, not to intrust the Supreme Court ©f a State with the full powers which will ultimately be exercised by the Federal High Court, I think we have a right, speaking on behalf of the mercantile community, and, I suppose, of the community as a whole, to ask the honorable gentleman to say whether there is not some means of extending the powers under the Bill without extending them to the degree which is considered dangerous ? I am quite sure that Senator O’Connor could, draft an amendment to do all that is absolutely necessary to insure justice, without placing it in the power of a State Supreme Court to give a’ final decision on important matters affecting, the Federal Constitution. I am quite with the honorable senator in thinking that such a power is not desirable.
– There would be none of the dangers indicated if my amendment were carried.
– Even supposing there was some danger to be apprehended from the amendment, a proviso sufficient to avert it might be inserted.
– It seems to me that there is some misunderstanding on the part of Senator Barrett as to the extent of the powers already given. The clause provides that any person making any claim in contract or in tort against the Commonwealth may bring his action.
– Does that include all questions except those affecting the Constitution 1
– No, but it includes every case in which there is any kind of claim for damages. Let me give an illustration. If there be a breach of a contract of any kind made with the Federal Government - it matters not what the amount involved or the nature of the contract may be - the Bill gives a remedy. Supposing it be a claim for damages as the result of an accident, or because of some’ action by a federal officer which is alleged to be unlawful, and for which damages can be claimed, then it comes under the clause.
– But there is no power to stop a federal officer doing that which will result in a wrong. The personwho suffers has to wait until the wrong is committed before he can seek a remedy. Why not go further and prevent the wrong ?
– That involves the whole question. I am now pointing out how far the Government are willing to go. We are willing that, wherever a wrong doneis reparable in damage, the case shall go into court. But wherever it is sought torestrain or compel the Commonwealth, through its officers, then, I say, we ought, not to give jurisdiction to courts which are not under the control of our own Parliament. I quite admit that under the Bill the same opportunity for the exercise and vindication/ of rights is not given as will be given when, the High Court is constituted. But, unfortunately, we have not been able to constitute a High Court, and we may not be able to do so for seven or eight months or more. In the interval what is to be done f There is a choice of two evils. We may allow the possibility of cases arising in? which-
– A man. may be ruined.
SenatorO’CONNOR. - We may allow the possibility of cases arising in which persons suffer an injustice by reason of having no right to compel or restrain federal officers. On the other hand, we are in the position of handing over to a State court power to stop the working of some department in the Federal Government. We have, unfortunately, often to make a choice between two evils ; and considering our position - considering the powers which will be given to the Federal Courts, and also the fact that we are bound to conserve the interests of the whole of the people of Australia - the lesser evil is that we should allow the possibility of the first class of cases arising in the meantime, rather than hand over such large powers to any State court. That is the position. There may be cases in which the right to stop a federal officer from doing something, or to compel him to do something may arise, and Some injustice may occur from the non-existence of that right. But . I cannot imagine any case in which it would. Take the case of the Customs. Under the Customs Act there is a remedy against the Collector of Customs for any wrong committed by the department. Why should not that remedy be exercised ? Senator Best yesterday made a statement in reference to a certain case. I find that Markland’s case, in which the point of jurisdiction was taken, was an action against the Minister for Trade and Customs.
The CHAIRM AN. - It was another case to which I referred.
– In Markland’s case, the Minister was sued as the Minister - that is to say the Commonwealth was sued - and of course the point as to jurisdiction was taken. I know of no case in which the point has been taken in an action against the collector. Whether it was taken or not, my view, from the consideration I have been able to give to the subject, is that the collector could be sued in any State court. I see nothing to prevent that being done. If that is so, and I think it is, is there any wrong which can happen under the Customs Act that cannot be remedied by an appeal against the collector to any of the States courts? In the case of the Post-office a remedy is given against the Deputy PostmasterGeneral in exactly the same way as the remedy is given against the Collectorof Customs. Why? Because they are the
State officials in each State ; they are the representatives of the Commonwealth in each State. In regard to any administrative acts from which these claims are likely to arise and by which the public are brought into touch with the representatives of the Government, tlie remedy lies against these officers. It seems to me that that remedy is available to the fullest possible extent. Now we are asked to go beyond that, to take the people of the Commonwealth into a State court, and to give power to that court, not only to award damages against us - to which we do not object - but to stop the wheels of administration from going round.
– That is so. We are asked to give the court power to do that, or else compel the administration to take some particular form. Considering our present condition, we should not do that. It would be much better to run the chance of whatever evils there may be in respect of some few individuals rather than hand over this great power, involving the rights of the Commonwealth to States courts.
– I am not prepared to recommend a course which would leave any individual without an opportunity for redress. This is a matter in regard to which we should err, if we err at all, on the side of generosity. We ought to be willing to run a few slight risks, in order that every man throughout the Commonwealth may feel that he has not been prejudiced by the establishment of federation, but that the remedy which he had prior to its creation is still open to him. The only case in regard to which I should approve of any limitation would be an action brought against the Commonwealth by a State. Obviously, it would be ridiculous for a State to bring an action in its own Supreme Court against the Commonwealth. If the word “person” clearly excludes that possibility, all that I want on that score has already been accomplished. I hope that we shall decide to give to every citizen of the Commonwealth his full rights, just as he would enjoy them if the Commonwealth were not in existence.
– Section 77 of the Constitution provides that the Parliament may make laws defining the jurisdiction of any federal court other than the High” Court. That would seem to show that the Vice-President of the Executive Council is taking a right course in seeking to limit the jurisdiction of what admittedly is, so to speak, a junior federal court. But the whole of the sections of the Constitution presuppose that the federal High Court will be established, and in that respect the VicePresident of the Executive Council would be right in asking lis to limit to a very considerable extent the jurisdiction of any other federal court.
– T should not limit the jurisdiction of a federal court in any way, because it would be our own court.
– The honorable and learned senator misunderstands me. I say that the sections in the Constitution which bear on this point go to show that in one way Senator O’Connor is right, but that they presuppose that the High Court is in existence. As there is no High Court in existence the factor of justice to which the honorable and learned senator has not referred enters into the discussion. Although we have postponed, and rightly postponed, the establishment of the High Court - for in that way we have effected a saving of about £25,000 for one year - and a citizen has no remedy against the Federal Government, it appears to me that in making a temporary provision to bridge over this difficulty we should not shrink from giving the temporary court a jurisdiction which will afford an ample measure of justice to all sections pf the community. It is difficult to imagine cases in which injustice would occur if the jurisdiction given by this Bill were limited, but it is quite possible that such cases might arise. I think the illustrations which Senator O’Connor has given are hardly to the point. He says that it is sought to give power to any State court to compel the Treasurer not to pay over certain moneys. Surely that is an exaggeration ! The Treasurer would only pay over moneys in accordance with the Act ; surrounded as he is by his legal advisers, I can hardly conceive that he would consent to pay over moneys in any other way. Then Senator 0’Connor says that if the power for which Senator Clemons desires to provide is given to these courts, it may alter the whole course of administration. How can that be ? Some of the honorable and learned senator’s arguments are much exaggerated. He has minimised altogether the point that the people will expect us, in establishing this temporary court, to provide as full and ample a measure of justice as is given to all persons residing in ‘ every other British community. If there is any limitation there will be complaints on behalf of citizens. We should do our best to avoid giving any cause for dissatisfaction.
Senator CLEMONS’ (Tasmania).- The longer the debate continues the more I feel inclined to wonder what real reason the Government have had for introducing this Bill. It is entitled “A Bill to make temporary provision for enforcing claims against the Commonwealth.” We know that a certain section of this Parliament are, rightly or wrongly, of opinion that a Federal Judiciary Bill is unnecessary. It must at once be apparent to that section that if this Bill is going to be a substitute for that measure it is insufficient and has many absurd limitations. If it were passed in its present condition the larger Judiciary Bill would be necessary next session, or as early as possible. I do not know whether the Government desire to make this temporary measure so unpalatable to the citizens of the Commonwealth that Parliament will, be compelled to pass a Judiciary Bill at the earliest possible moment, but that is a fair inference to draw from the wording of the clauses. There are many absurd limitations. Important rights which citizens should possess, are not given to them in this measure, and I am quite prepared to believe that we shall be told that a full and complete measure is an urgent necessity next session. The Vice-President of the Executive Council has laid particular emphasis on the point that the amendment I have proposed might enable a State to submit itself to its own’ court in order to get some advantage, which he hints would be unfair, against the Commonwealth. I have no desire whatever to enable a State to take an unfair advantage of the” Commonwealth, but to show there is no possibility of such a thing I would ask honorable senators to turn to subclause (2), which provides that-
The Governor-General may, if he thinks fit, appoint any person to be a nominal defendant accordingly.
What is the result ? If my amendment is carried, and if, as Senator O’Connor indicated, there is a danger of a State taking advantage of the Commonwealth under this measure, the Governor-General will have it in his own hands to prevent that State from appealing to its own court against the Commonwealth. There is the remedy. I do not suppose the Government would be blamed if they declined to allow a State court to decide a case against the Commonwealth in which a State was concerned. But who would say that an individual citizen should not be able to go into any State court, whether it be the court of the State in which he lives or not, if, as a citizen, he has a fair ground of action against the Commonwealth? If sub-clause (2) remains, there will not be the faintest chance of any State in the Commonwealth obtaining an unfair advantage ; and if my amendment is accepted, we shall enlarge the opportunity offered to individual citizens to obtain their rights. The limitation to claims in contract or in tort is, as Senator O’Connor has admitted, one that is grossly unfair. It gives to one class of private citizens that which is denied to others. As Senator Sargood has pointed out, it denies the opportunity to obtain redress in what have been proved to be cases of gross injustice. I, therefore, have no hesitation in pressing my amendment. I do not intend to deal with the interpretation of the words - “ any person.” Whatever may be their interpretation, the Government have power under sub-clause (2), to prevent any action by a State against the Commonwealth.
– So far as I can gather from the discussion, the position appears to be this - Seeing that it is not possible now to establish a Federal High Court the Government propose to give the States courts jurisdiction in certain matters, withholding from them jurisdiction in certain other matters. The object of the Government seems to me to be this : While allowing persons who have claims against the Commonwealth in the ordinary course of business access to the States courts, it yet seeks to prevent any questions involving the interpretation of the Constitution from coming before these courts.
-It limits the rights of individuals.
– I should not like to say that it does not, but as Senator O’Connor has put it we have our choice of two evils. On the one hand we might give the States courts the fullest power to try any case brought before them. If we do thatwe certainly confer a benefit upon an individual who has a grievance against the Commonwealth. Justice is not delayed. He can bring his case before the court of his State. That is his position. But what is the position of the Commonwealth ? We immediately have six State courts tinkering away at the Constitution.
– Nonsense ! Look at sub-clause (2).
– The VicePresident of the Executive Council agrees with what I say. Senator Clemons refers me to sub-clause (2), and says that the GovernorGeneral, by refusing to appoint a person to be a nominal defendant, may keep a State or an individual out of court.
– A State ; but why should he keep an individual out of court?
– Actions involving an interpretation of the Constitution may be brought by individuals. W e may have a planter, employing kanakas in Queensland, questioning the power of the Federal Parliament under the Constitution to pass the legislation which it has enacted, and submitting that issue to the State court in Queensland.
– Does the honorable senator think the Federal Government would allow that?
– If the Federal Government refused to nominate a defendant, what would be said of them ?
– That they had done what they ought to have done, of course.
– I think that if we adopted Senator Clemons’ amendment we should be making confusion worse confounded,” and landing ourselves in a series of interminable difficulties. I admit at once that the position is not all that it ought to be. The High Court should be established so that the citizens of the Commonwealth might appeal to it. But it is not established. It is not likely to be established for some time ; and, as I said at the beginning, this Bill gives an opportunity to persons who have entered into contracts with the Commonwealth, or who feel aggrieved against the Commonwealth in consequence of something done in the ordinary course of business, to get relief. It goes no further. I do not think it should go any further, and I intend to vote against the amendment.
– Although this is strictly speaking a legal matter, there are certain aspects of it which are perfectly clear to the lay mind. It seems to me that the Government are practically saying to us - “While we recognise the advisability of the establishment of courts to give the citizens of the Commonwealth facilities for getting justice, we do not propose to give those full facilities in this temporary measure.” That seems to be the issue put before us, and, as a layman, I think the Government are acting wisely in this respect. We know that law and legal findings are very largely a matter of precedent. We often read in our law reports that precedents arising out of similar cases are quoted. What may happen if we adopt Senator Clemons’ amendment is, as Senator Stewart has pointed out, that a suitor may ask a State court to decide a constitutional question. I do not know, as a layman, whether such a decision would be held to be binding upon the Federal High Court in the future. But I certainly think that a decision given by a State court on a constitutional question, would, .to a certain extent, bias the future decisions of the Federal High Court.
– It would not be allowed. If a constitutional question arose in a case brought under this measure, the Federal Government would veto it.
– How are the Government to know of the issues to be raised in any case, until the case is heard 1
– Hear, hear; quite right.
– Take the Post and Telegraph Act, under which the Federal Parliament has prohibited the delivery to .certain individuals of letters supposed to be for the purpose of encouraging gambling. Under this Bill, if it is passed in its present “form, those persons have a right to redress by proceeding against the Government and claiming damages.
– Such a case would never be tried in the Tasmanian courts.
– I take it that in that case the Government would not refuse to allow a nominal defendant to be named.
– I say they would, and ought to do so.
– An action for damages would not involve the interpretation of the Constitution. The case would turn on the point whether the law passed by the Federal Parliament had been carried out properly. But, suppose we passed Senator Clemons’ amendment, the individuals affected would then have the additional right to endeavour to restrain public officers from refusing to deliver letters to them.. They might petition the court to compel them to deliver the letters. That issue would at once involve an interpretation of the Constitution as to whether this Parliament has power to impose such disabilities upon any of its citizens. Such a .petition as that would involve an interpretation of the Constitution which should only be made by the Federal High Court.
– Hear, hear. I think so, too. But there are hosts of other cases which the honorable senator would prevent.’
– It seems to me that Senator Clemons is not consistent, because, if his amendment is carried, the only safeguard we shall have will be that the Government could refuse to appoint a nominal defendant. Is that desirable? I do not think it is.
– If a case involves a constitutional issue it is desirable.
– I do not think it is wise to leave it to the Government to say whether a constitutional question shall be decided by a State court or not.
– Cases involving constitutional issues ‘ would crop up, and the Government would know nothing about those issues until the cases came on for trial.
– The Government might find themselves faced with the prospect of having a constitutional question raised which they did not suspect when permission was given to bring the action. While we ought to give the citizens of the ‘Commonwealth every facility,- we should be careful to give it to them in such a manner as will insure, not only that the citizen gets justice, but that the Commonwealth also gets justice, and that we do not lay down precedents and have the ‘Constitution interpreted in such a way as to lead to difficulties in the future. It is very possible that those difficulties will be raised if we leave the Constitution to be interpreted by the States courts. We may have six different interpretations of the Constitution from each of the six different courts. When the Government bring forward a measure which only gives limited rights to the individual, we are not justified in extending those lights, because we do not know where it will end.
– I am particularly pleased to hear such clear explanations of this matter from two laymen like Senators Pearce and Stewart. Also having only a lay mind, I was delighted to find the honorable senators and myself running together on this question.
– Do not call it a lay mind ; it is anything but that !
– If we are not careful, we may have the six different Supreme Courts of the States giving six different interpretations of the Constitution. The Vice-President of the Executive Council has very clearly shown the danger of giving greater powers than this Bill contemplates. Suppose actions are brought against the Commonwealth in the local Supreme Courts, and the Governor-General thinks it necessary to decline to give permission to nominate a defendant, then, in the minds of a great many unthinking people, the Commonwealth will become even more unpopular than it is now.
– Then it is unpopular, is it t
– It is in many quarters. If persons know beforehand that it is of no use for them to commence certain actions they will not bother about them. We have gone on for 21 months without these remedies being open, and this measure gives a fair share of what may be called justice. The remainder of the facilities for bringing actions may as well remain in abeyance for a few months longer. I am such a thorough federalist as to be no believer in doing away with the necessity for the creation of the Federal High Court. I wish to see it established as soon as possible. The very fact that the local courts have not full jurisdiction will hasten the time when the Federal High Court will be established, and then the full jurisdiction intended by the Constitution will be conferred.
– I had intended when Senator Clemons moved this amendment to support it, but as I have seen reason to change my view I do not intend to give a silent vote. I look at this Bill rather from the standpoint of the proverb that “half’ a loaf is better than no bread.” I sincerely believe that there is a need for such a Bill to become law. I had circulated an amendment .which I had intended to move, but I shall refrain from moving it, and from supporting the present amendment, not because I do not think that both are required, but because it is better to take a partial measure of possible justice than not to get anything at all. We know that at present people are positively without any chance of obtaining a remedy against the Commonwealth Government. I admit that this Bill gives power to the Government to prevent a citizen of the Commonwealth from obtaining redress, or from starting to obtain it. But still, at the present time the Government have no power to give facilities to any person to obtain redress against them. They are compelled to be quiescent.
– Is the honorable senator speaking against his own amendment ?
– Yes. It is a mere matter of time. We know that the other Chamber meets at half-past two, and between now and the time fixed for the prorogation, there is na possibility of an agreement being arrived at between the two Chambers if the Bill undergoes amendment.
– Besides that, this is the fullest extent to which the Government are prepared to go.
– I did not know that j but certainly there is no possibility of securing such amendments as the majority of the Senate possibly desire. I desire those amendments to be made quite as much as any one else. I am very much in earnest about sub-clause (2).
– We ought to be willing to sit until we do justice.
– We cannot control the actions of the House of Representatives, and rather than run the great risk of losing the possible measure of justice involved in this Bill, I have made up my mind - reluctantly, I own - to submit to the measure as it stands. I trust that next session, when the Judiciary Bill comes before us, we shall have an opportunity of amending it, so as to make it much more complete and satisfactory than I regard this Bill as being.
– We are just going into a six months’ recess.
– I cannot help that. We cannot control the Government and the other House - although the honorable senator might be able, with his eloquence and logic, to control the Senate! There is no one here who is more enthusiastic than I am, or more loyal, concerning the desire to amend this Bill.
– Supporting this amendment would be a more practical way of showing it.
– I think it would be a more practical way of losing the measure. I think it is better that we should not risk the possibility of obtaining the partial relief which this Bill gives.
Senator Sir FREDERICK SARGOOD (Victoria). - After the distinct statement of the Vice-President of the Executive Council that the Ministry have decided that they will not accept any amendment in this Bill.
– Are we going to be threatened in that sort of way?
– When the honorable senator has been as long in politics as I have been, he will know that, when a statement of that kind is made by a Minister in the last few hours of a session, it must be taken notice of.
– Is the honorable senator prepared to pass anything which may be printed upon this document because the Government say they will not accept any amendment?
– Not . necessarily. The honorable and learned senator knows that to a great extent I agree with him. I think it is a pity that this Bill was not introduced sooner, and that it was not made more extended in its operation. But, in view of the fact that it is an important step in the right direction, while I should much prefer to see it go further, I feel that I cannot support the amendment at the risk of losing the Bill.
– I have risen merely to congratulate Senator Neild upon his return to common sense. The honorable senator has taken in this matter the most common-sense attitude he has assumed for some time. We all know that there is no time to deal with amendments in this Bill, if they are made, and we also know that it has been an act of justice on the part of the Government to introduce this Bill at all. If the Government had not brought in this Bill, Parliament would have prorogued just the same, without having done anything in this 7natter. I believe, therefore, that it will be more sensible on the part of honorable senators, even although they may disagree with some provisions of this Bill, to accept it as a certain measure of justice, than to risk it in any way by proposing amendments which they must know very well that there will be no time to carry. A Bill of this description will do some good. lt’ will allow those who have a just cause of action against the Commonwealth Government to have it looked into, and the introduction of the Bill is a proof that the Government are willing that they should have that opportunity. The only course left to honorable senators who believe that the Bill should be amended is to accept it or reject it, because they know there is no hope of their being able to amend it.
Senator CHARLESTON (South Australia). - I should like to know why there should be no hope of amending this Bill when we know that a majority of honorable senators are dissatisfied with it.
– Certainly not a majority.
– I should say that a majority of honorable senators are against it from what I have heard. That, of course, can be shown by taking a vote. There is no use in saying that, if we insist upon this amendment, the Bill will be dropped. I think that Senator O’Connor must have made that threat, because he saw that there is a majority against the Bill, and he desires to bring some honorable senators over to his own side. We have no right, even for the sake of an early prorogation, to deny justice to any citizen of the Commonwealth. If we believe that the amendment proposed by Senator Clemons should be embodied in the Bill, it is Our duty to vote for it and to send the Bill back to the other House in the amended form. I think that the other House will accept the amendment when it is shown that it is the expression of the will of the Senate. We have been in session for seventeen months, and it will be no very great disadvantage to have to sit for another day or two, if by so doing we can secure that citizens who have been aggrieved shall be given a right of redress.
Senator PULSFORD (New South Wales) - It is really astonishing to find, two or three hours before the time at which Parliament is to be prorogued, the Government displaying quite a remarkable amount of backbone. We have been told now in plain language that the Government will not do so and so.’ About three o’clock, when the session will probably come to an end, the Government will go into recess, explaining that they are a strong Government with remarkable backbone.
– Their pliability has been more remarkable hitherto.
– Even at the risk of enabling Senator McGregor to say that I have departed from lines of common sense, I am not going to be dismayed by the newlydeveloped backbone of the Government, and I shall therefore vote for the amendment, which I trust will be carried.
Senator CLEMONS (Tasmania). - I have just one word to say as to legislation by threat or effluxion of time, whatever honorable senators choose to call it. The Vice-President of the Executive Council has intimated that unless we pass this Bill without a single amendment it will not become law. I shall be able presently to show honorable senators that unless another amendment is made in this Bill an absolute injustice will be done as between two persons who will have exactly the same right of action against the Commonwealth, subject only to the difference that in one case the right of action will have arisen more recently than in the other. So far as the merits of the case are concerned there is absolutely no distinction whatever, and while I do not desire to go into irrelevant matter I say that unless an amendment is made, that is the condition of things which will be brought about.
– That amendment will involve no alteration of the principle of the Bill.
– It will involve an amendment of the Bill, and we have been told that if we dot an “ i” in this Bill, it will not be sent back from the other House.
SenatorDawson. - Who said that?
– We have been given to understand by the Vice-President of the Executive Council that the Government will accept no amendments, I ask the honorable and learned senator to say again whether any amendment of this Bill will be accepted.
– I shall not answer a question of that kind.
– It is an extraordinary method of legislation for a majority intimidated by threat to sanction with their eyes open the passing of a measure which is on the face of it slipshod and slovenly, because this is the end of the session, or for some equally absurd reason. I hope that even if I remain as long in politics as Senator Sargood, I shall continue to object to legislation by threat, and to the passing of measures with which I do not agree. I shall take a division on the amendment.
Question - That the words proposed to be inserted be so inserted - put. The com mittee divided.
Ayes … … … 6
Noes … … … 16
Majority … … 10
Question so resolved in the negative.
Senator MILLEN (New South Wales).I propose to submit the amendment which was previously suggested by Senator Neild. The honorable senator seems to have taken his hand from the plough.
– I desire to get to the end of the furrow.
– Well, I am not so much concerned about the threat of the Government. I move -
That the following new subclause be added - “ (3) If within one month after the presentation of such petition no such appointment be made, the Treasurer for the time being shall be the nominal defendant.”
As the Bill is drafted, it leaves the Government in the position of being able to say whether or not they will be sued. That, of course, is a most comfortable position for a defendant to be in, but is it fair to the plaintiff? I think that any one who is really aggrieved should be given a proper and legal opportunity of redress, without requiring to ask the consent of the Federal Government at all. I do not think that position will be disputed. The Vice-President of the Executive Council has referred to the risk of losing the Bill. An amendment similar to that now submitted was lost in the House of Representatives only by the casting vote of the Chairman, and if the Senate agrees to it by a reasonable majority, is it likely that the Government will take the responsibility of abandoning the Bill? I should like to join Senator Pulsford in congratulating the Government upon the fact that they have at last discovered one measure in respect of which they are prepared to nail their colours to the mast. I believe that if the amendment is agreed to, it will be accepted without hesitation by the other Chamber.
-I have already given reasons why the Government cannot consent to this amendment. We are willing to allow cases such as are described in the earlier part of the clause to be taken into court by consent, and, as I have said before, I cannot imagine any case in which the Government would be likely to withhold its consent. A similar provision has been embodied in the law of South Australia for many years past, and, although the Government of that State have a right to refuse their consent, as a matter of fact they do not withhold it. In a temporary measure of this kind, under -which we are submitting to the jurisdiction of the States courts, I think we ought to preserve the right to say whether a case shall or shall not go to judgment. If we were proposing to submit to our own courts, I should cordially agree with the honorable senator and I should even be prepared to provide that claimants should be entitled to sue the Commonwealth in the name of the AttorneyGeneral, or of some other officer direct. We are, however, dealing with entirely different conditions, and the Government regard it as a matter of exceedingly great importance, that we should keep the power of consent within our own hands.
– I had the advantage of listening to the debate which took place in the House of Representatives on an amendment similar to that now moved. I listened attentively to the speeches delivered there by several competent constitutional authorities, and I left quite satisfied that no injustice would be done if the amendment were rejected. I am still of that opinion, because I do not think it likely that the Government will go the length of refusing to name a nominal defendant.
– Why are they fighting so strenuously against it ?
– I am perfectly satisfied that no injury is likely to result from our passing the clause in its present form.
Question - That the words proposed to be added be so added - put. The committee divided.
Question so resolved in the negative.
Clause agreed to.
Clause 3 -
The petitioner may in respect of the claim bring against the nominal defendant an action or suit at law or in equity in the Supreme Court of the State in which the claim arose.
The rights of parties in the action or suit shall, as nearly as possible, be the same, and judgment may be given and costs awarded on either side, as in an ordinary case between subject and subject.
– I think that this clause should be so amended as to extend the time within which actions can be brought against the Commonwealth Government. Section 157 of the Post and Telegraph Act provides that any action against thePostmasterGeneral, or any officer or servant of the department shall be brought within six months from the cause fo action arising. The effect of that section, taken in conjunction with this Bill, would be to exclude from the benefits of the measure claimants whose causes of action arose over six months ago. Does any honorable senator consider that just 1 I see no reason why we should give to one man an opportunity of bringing his action, whilst denying it to another. It may be urged that the claimant in a cause ofaction arising over six months ago might have brought an action before this ; but until the case of Hannah v. Gray was decided in Sydney no proceedings were taken against the Commonwealth, because no doubt a great many plaintiffs were well advised that there was no court which had jurisdiction to try such causes. Unless the clause is amended, gross injustice will be done, but I would first ask the Vice-President of the Executive Council whether he will accept an amendment in the direction I indicate, because otherwise there is no use in proposing it.
– I do not see any connexion whatever between the section of the Post and Telegraph Act referred to and this Rill. This measure deals only with actions against the Commonwealth.
– And against its officers 1.
– The remedy given in the Post and Telegraph Act is against the Postmaster-General or the Deputy PostmasterGeneral, and, in that case, there is no necessity to proceed under this Bill. Of course, if the remedy is not specifically given against the Postmaster-General, he would be an officer of the Commonwealth, and the action would have to be brought against the Commonwealth. The States courts have control over cases in which the remedy is given against the Postmaster.General in just the same way as they have power to deal with actions against the Collector of Customs arising under the Customs Act. The difficulty in Hannah’s case was that the Commonwealth could not besued, unless a law was passed authorizing proceedings against it. The difficulty did not arise from the want of jurisdiction of any court, but was due to the old doctrine that “ the King can do no wrong.” As the Commonwealth represents the King, it can do no wrong. Where, however, the laws of the Commonwealth such as the Post and Telegraph Act, or the Customs Act authorizes an action to be brought against a particular officer, the cases can go before the States courts irrespective altogether of this Bill. In the Customs Act it is provided that in the case of a dispute regarding the amount of duty to be collected, the duty must be paid, but an action for its recovery can be brought against the Collector of Customs in the State where the cause of action arises. The limitation of proceedings to which Senator Clemons has referred is a limitation of proceedings under this Bill. The honorable and learned senator is confusing two things which really have no connexion with each other.
Senator CLEMONS (Tasmania). - I differ from the view which has been advanced by the Vice-President of the Executive Council. I say distinctly that until this Bill becomes law no proceedings can be instituted against the Postmaster-General.
– Not even under the Post and Telegraph Act 1
– The States courts would decline to exercise jurisdiction if proceedings were instituted. That is the very reason why we are now being asked to pass this Bill.
– Hannah’s case was an action in common law for negligence, but the Post and Telegraph Act confers upon individuals, who consider themselves aggrieved, certain rights against the Postmaster-General.
– In that Act a limitation of six months is imposed in respect of the right of action. I have no objection to that limitation, but I hold that it should date from the time of the passing of this Bill.
Clause agreed to.
Clauses 4 to 8 agreed to.
Question - That the Bill be reported without amendment - put.
– I desire to move -
That the following words be added: - “and that during the deliberations of the committee the Chairman referred to an alleged occurrence during the sitting yesterday of the committee of the whole upon the Appropriation Bill.”
– I refuse to receive that amendment.
– Then, sir, I take exception to your ruling.
– The honorable senator must put his dissent in writing.
– I will do so.
– In committee on the motion “That the Bill be reported,” Senator Neild sought to move an amendment to add to it the words “ and that during the deliberations of the committee the Chairman .referred to an alleged occurrence during the sitting yesterday of the committee of the whole upon the Appropriation Bill.” I declined to receive that amendment upon the ground that it was irrelevant, and exception has been taken to my ruling.
– According to the standing orders the reasons for the honorable senator’s dissent should be stated in his exception to the Chairman’s ruling.
– Is that your decision, sir?
– Yes. Upon two grounds the honorable senator’s appeal cannot be sustained. In the first place, I think that the Chairman was manifestly right in deciding that the amendment which Senator Neild wished to submit was irrelevant, and, in the second, the objection to the ruling is not in form.
Bill reported without amendment ; report adopted.
Bill read a third time.
Senator O’CONNOR laid on the table, the following paper : -
Customs Acts - Regulations re Manufacturing Warehouses.
– With regard to the report of the Printing Committee, I intend to propose that the Order of the Day for its consideration be discharged from the notice-paper-. I think it is better to do that than to go through the form of postponing the consideration until a day when the Senate is not sitting. There will be nothing to prevent the matter being considered next session. Of course, the Printing Committee will come to an end at the close of this session, but the report itself may be brought before the Senate upon the re-appointment of the committee, or in some other way. I therefore move -
That Order of the Day No. 3 be read and discharged.
Question resolved in the affirmative.
– I propose also to move that Orders of the Day No. 4 and 5 be discharged. The first is a motion to enable the chair in Committee of the Whole to be taken by any senator at the request of the Chairman of Committees ; and the second is a motion for the adoption of the draft standing orders. I move -
That Orders of the Day No. 4 and 5 be read and discharged.
Question resolved in the affirmative.
– With regard to the Matrimonial Causes Bill, which is the first order of the day amongst private business, I desire to say that I regret that we did not pass a standing order providing that Bills may be taken up in the next session of Parliament at the point they had reached in the preceding session. But I cannot go on with the Matrimonial Causes Bill now, and, therefore, move -
That Order of the day No. 1 be read and discharged.
Question resolved in the affirmative.
Orders of the Day, Nos. 2, 3, 4, and 5 (private members’ business), read and discharged.
– I move -
That the report of the Select Committee ou “ Tasmania and Australia steam-ship communication,” brought upon the 25th September, .1002, be adopted.
This report has already been circulated amongst honorable senators, though not for as long a time as I should have liked. The report itself has been condensed, as far as was consistent with the importance of the subject, into as small dimensions as can be. It will be remembered that some time has elapsed since the Senate by a unanimous vote appointed this committee to inquire into matters relating to steamship communication between Australia and Tasmania. Since then the committee have conducted investigations, and have endeavoured to submit a straightforward report. The result is submitted in this document, which has been made as brief and effective as possible. In endeavouring to attain that end, the committee have been materially assisted by different public bodies, and quasi public bodies in the State of Tasmania. Other members of the committee will agree with me that our work has been considerably facilitated, and that the expense involved in the investigations has been reduced practically to a minimum, by the loyal support that has been accorded to us by those different bodies in endeavouring to I sift the evidence, and to present to us only such as was material to the issues we had to consider. It will be seen by honorable senators who glance through the report that the witnesses examined came, not only from the State of Tasmania, but also from Victoria and other States. In those cases they represented, in an authoritative way, some particular phase of the subject into which we were inquiring. Wc have taken the evidence of men like Commander
Colquhoun and Captain Creswell, and of gentlemen intimately associated with the commercial travelling public of Australia, who were delegated to give evidence by the Commercial Travellers’ Association of “Victoria and Tasmania. We have had the evidence of men accredited by the respective Stock Exchanges as well. In almost every instance the witnesses who were called before the committee were not men who volunteered to give evidence for any private reasons, but were accredited by representative bodies. The report deals with several matters that occurred during the discussion on the motion for the appointment of the committee. It was then pointed out byseveral speakers that the question of communication between the one island. State of the Commonwealth and the mainland was then, or must hereafter become, one of very great importance indeed, especially in view of the possibility of the Commonwealth authorities exercising the powers given to them by the Constitution and federalizing the railways. It was pointed out also that the question of the control of this particular line of communication afforded excellent opportunities for doing something - in a small way it may be - towards improving the defences of Australia. These matters have been inquired into by the committee so far as evidence could be obtained. They have taken the evidence of the General Manager of Railways for Tasmania and other witnesses, with respect to the first issue I have mentioned, and the evidence of men like Captain Creswell, and Commander Colquhoun with regard to the other. This evidence will be found attached to the report. The trend of it was, as stated in the report, that a proposal such as that of federalizing the State railway services when considered by the Federal Government should have considered in connexion with it a proposal for controlling the steam-ship communication between Tasmania and Australia. Upon this subject the committee say that they are of opinion that such a proposal should be considered - in connexion with any movement for the acquisition by the Federal Government of the railways of the several States, and in connexion with the question of defence, respecting which evidence has also been given to your committee as to the possibility of constructing steamers for the Tasmanian-Australian trade, with a view to their utilization in time of war as a valuable adjunct to Commonwealth defence.
Then, also, we have inquired into the question of mail communication, and that of . drawing closer together for commercial relations Tasmania and the States of the Commonwealth upon the mainland. The committee have recommended the Government to invite tenders for the performance of a six days a week service, each way, between Melbourne and Tasmania. It is considered that such a service will be of great commercial value, apart from its importance from a postal point of view. It is shown in the course of the evidence that the amount paid by the Government of Tasmania in subsidies for the existing mail service was £6,000 per annum. For that mail service the Union Company has to supply at the present time a tri-weekly service between the northern part of Tasmania and Victoria; two boats leaving either end - Melbourne or Launceston - each week, and a third boat between Melbourne and the Northwest Coast ports. But I would point out to the Senate, as the evidence will show, that there are other means ‘ of communication besides those which are availed of by the Postal department for carrying the mail between Tasmania and the other Australian States. The Union Company itself does not provide all the steamers. It has an agreement with another company with which it was previously running in competition, by means of which affairs are regulated between themselves. The report recommends that there should be commenced a daily mail service each way throughout the year. I can give the committee an illustration which justifies the fifth paragraph of the report. On Monday, for instance, a boat leaves Melbourne and takes mails to Tasmania. It takes the mails to the North-West Coast. On Tuesday a boat leaves Melbourne and goes to Launceston. It takes mails to be distributed throughout Tasmania. On Wednesday there is no boat leaving. On Thursday another boat leaves Melbourne and goes to the North-West Coast. It takes mails, and with regard to that J shall have something further to say.
– What boat leaves on Mondays ?
– The Flinders. On Thursday another boat leaves and takes mails. On Friday there is the regular boat to Launceston, and on Saturday, in some instances, there are two smaller boats, one of which carries mails. So that there may be actually six boats running in the week, though they do not all belong to the same company. As a result a mail will be delivered sometimes, as my honorable friends from Tasmania can bear out, on Friday afternoon or Friday evening late at the northern port of Tasmania, and there may be another mail the next morning, whilst two or three other days may go by before a mail is delivered. In addition to the subsidy paid for the delivery of mails, mails carried by boats other than those engaged in the subsidized service are paid for by what is known as poundage rates. During the course of the present week I have ascertained from the Postal department the actual amount paid over and above the subsidy of £6,000 as poundage for the carriage of mails between the other States and Tasmania. I have not the exact figures by me, but they are available, and, if necessary, I can supply them to honorable senators. For New South Wales the sum paid was something like £2.55 for last year, and about £80 for the first six months of this year. For Victoria £3,300 for last year, and about £.1,600 for the first six months of this year. For Western Australia a small sum was paid, and I believe that some of the other States are debited in turn by Victoria. In the case of mails arriving from South Australia addressed to Tasmania, and which are despatched from the Victorian post-office the Victorian Government sends the waybills for those particular mails back to South Australia, which State recoups Victoria for the expenditure incurred. Roughly speaking, some £4,000 is paid by the other States, in addition to the £6,000 subsidy paid by Tasmania. I have no. hesitation in suggesting that if that £4,000 were made a definite sum, and its proper proportion were allocated amongst the respective States on the basis of the past five or ten years’ contributions, under the provisions with respect to poundage rates, and added to the £.6,000 already paid by Tasmania - thus making, a definite subsidy of something like £.10,000 a year - the existing companies would be in a position to establish a regular service, either by means of their own ships, or in conjunction with the ships of other companies with whom they might enter into agreement, and such a service as would carry out what is stated in paragraph 2 of the committee’s report. It would provide for a daily service with the times of arrival and departure of mails from either side approximately the same. This could be in a great measure effected by properly economizing and distributing existing services. In the case of States connected by rail, it matters not very much what time is occupied in the transit of the’ mails between one terminus and another. If a daily mail service exists, a person losing his mail is able to overcome the difficulty on the following day. The same thing applies with regard to business men. Evidence was given before the committee with regard to commercial transactions, and it is found that in many instances travellers having commercial business to do will leave one side of the Straits to go to the other, and perhaps find that after they have attended to all the demands upon them they are obliged to wait for two or two and a half days before they can return. If this should be at the end of the week they perhaps get back on the Saturday, so that a journey which should occupy at the most three or four days is extended to perhaps ten days. We have been told in evidence that, under the circumstances, commercial people who might very often go over to do three or four hours’ business if by means of a regular daily service they could return at once, refrain from making the journey, because under existing conditions the time they must lose is altogether out of proportion to the amount of business they may have in hand. If honorable senators will take the trouble to go through the evidence carefully they will find that in most instances the witnesses accredited to give evidence were stating, not merely the results of their own experience, but were speaking as the representatives of. many persons engaged in occupations similar to their own. It will be clear upon perusal of the evidence given that the improvements suggested in this report, if carried into effect, would have the result of drawing very much closer together the one State of the Union which is separated by sea and the remaining States, not merely for the benefit of that particular State, but for the benefit of all commercially. Honorable senators will see that the last paragraph of the committee’s report recommends theGovernment to call for tenders for the performance of a six-days a week steam service each way between Melbourne and Tasmania. They will notice in the preamble to the report that one of the matters which the committee was appointed to investigate was the “ estimated cost involved in the adoption of such means.” I would say in regard to this that the members of the committee found it very difficult, and, in fact, impossible to ascertain what were the exact terms upon which these concessions would be granted. The difficulty arose simply because those interested in the shipping companies were not disposed to enter into the private details of their business and to publish them to the world. The members of the committee naturally respected the motives which induced the representatives of the existing companies not to show their hand. They have considered that the best way in which to obtain an idea as to what would be the cost involved in the establishment of a regular daily mail service each way would be for the Government to call for tenders so that all the competing companies might have an opportunity of submitting a statement of the amount for which they would be prepared to carry out such a service. By that means the best information would be furnished to the Government with regard to the third matter for investigation referred to in the preamble to the report. Honorable senators will find that the members of committee have done all they possibly could. They have collected evidence from the representatives of, at all events, the two principal shipping companies permanently engaged in the trade in every port of Tasmania which they visited, and also in the port of Melbourne. They have taken the evidence of the Railways Manager in Tasmania, and in almost every other instance it will be found that the witnesses were accredited representatives of some body of public opinion.
– The witnesses were not unanimous I think?
– They were not unanimous in many details, but the members of committee were unanimous with regard to the report.
– The witnesses were not unanimous as to the. necessity for further communication.
– They may not have been. There were some witnesses whom the committee considered were naturally very much interested in preserving existing conditions.
– Did not the honorable and learned senator say that they were representatives of public bodies ?
– No. I said that we called as witnesses the representatives of the two principal shipping companies engaged in the trade in every port of Tasmania which we visited and in the port of Melbourne. “We naturally considered that those witnesses were interested, and I have explained that as a matter of fact we could not get evidence from them with regard to the cost of an improved service. I have said we respected their motives in failing to give evidence upon that point. But the other witnesses examined by the committee, in almost every instance,, were accredited representatives of bodies of public opinion, and in obtaining their evidence we were greatly assisted by different public bodies with whom we placed ourselves in communication. They did not merely assist us in the matter of supplying evidence, but the expenses attendant upon the investigations of the committee were in that respect reduced to a minimum. If honorable senators will take the trouble, not merely to casually glance at the evidence given by any particular witness, but to go through the whole of the evidence, they will find that the report of the committee as presented will commend itself as a correct report in the light of the evidence submitted. It does not goto the extreme length, which perhaps theevidence given by many witnesses would have warranted the committee in going, and, on the other hand, I think it should! commend itself to honorable senators on account of its moderation, in the light of the proposals made by ‘various witnesses.. I hope honorable senators will carefully consider, not only the report, but the whole of the evidence upon which it is based, and that they will credit the committee with having endeavoured to come to a conclusionwith due regard to existing conditions, with due regard to what has been done in the past by private companies engaged in this trade, and with due regard to the possibilities of the future, and the claim of each State, now that it has entered into theFederation, to be brought so far as that can constitutionally be done into closer contact with the other States of the Union.
– When the proposal for the appointment of this committee was before the Senate, I did not hesitate to express my opinion that it was unnecessary. 1 stated that I was quite certain that no State would, benefit more .from federation than would Tasmania, and that the development that would naturally ensue upon the adoption of a uniform Tariff and Inter-State free-trade would tend to enable the people of Tasmania, without any Commonwealth assistance, to make such arrangements as were desirable in the interests of its mail communication. There is no doubt that the Inter-State trade of Tasmania has very materially increased of late, and I am quite certain that no Tasmanians should come to the Commonwealth Parliament and ask us to step out of our ordinary course on their behalf in this matter. I have the greatest possible faith in the present and future position of Tasmania, and I am certain that, without Commonwealth interference, the people of that State will be able to make their own arrangements, and to go very fast ahead.
– As this report may, to a large extent, be regarded as the child of Senator Keating, perhaps, on this occasion, I shall be permitted to play the part of acting godfather. The sittings of the Senate did not permit the entire work to be done by one journey, so we experienced on two occasions, the great pleasure which attends a trip across the strait in vessels which - atanyrate, one of the two - are scarcely up to modern conditions, and as it fell to my lot to be a visiting member of the committee on both occasions - other honorable senators visited only once owing to engagements which they were unable to set aside, Senator Barrett, for instance, taking the place of Senator Pearce - I feel that I am entitled to say a few words. ‘ First of all, I desire to acknowledge in the fullest manner, as Senator Keating has done, the great aid that was accorded to the committee by representative bodies in Tasmania. The committee did not examine a crowd of miscellaneous witnesses. We restricted the evidence as far as we. reasonably could to the representatives of known bodies, official and otherwise, and the assistance that was given to us in this manner was undoubtedly very great and handsome. The recommendations of the committee, I think, are unquestionably moderate. We recognised that several questions are involved - the carriage of mails, the carriage of passengers, and the carriage of goods. We took it, and I think the whole Senate will agree, that the carriage of passengers on the best terms however desirable, is not yet at any rate, a function of the Federal Government. Therefore, it was not our business to make any special recommendations on that score, any more than it was our duty to make any recommendations as to the carriage of goods. The carriage of mails is certainly a federal duty, and the report deals chiefly With the question from that stand-point. Until the railways of the States are taken over, the carriage of passengers and goods is certainly not a duty of the Commonwealth. There is one point to which I should like to draw attention. I am perfectly astounded to see on the face of this report a statement that the approximate cost of printing and publishing it is £109. If it were stated at £15 or £20 I could understand it. It is the most extraordinary charge I have ever seen. Whether the conditions here are different from those to which I have been accustomed in New South Wales I do not know. But I certainly have never seen more than about £15 or £20 stated as the cost of printing a report such as this is ; I cannot comprehend where £100 worth of work comes in. I suppose it is all right - it must be local prices - but it does occur tb me that this estimate of cost may cast a little side-light upon the desirability of the Commonwealth doing its own work, instead of having it done by other people. I have had a little connexion with printing matters for a good many years, and I am simply staggered by the figures on this document. Had I known that the printing of the report was to cost such a price, 1 do not know that I should ever have consented to the appointment of the select committee. I think I should have opposed it. I am without the details, but I believe I am in a position to say that the travelling for the committee, the shorthand writer and all, did not come to any such sum as that. On the first journey the travelling expenses and railway fares for the clerk and the shorthand writer had to be paid for, and the entire cost of travelling did not amount to more than £30. I do not suppose that the second trip cost any more than that sum. I do not see any reason why it should have done, so that at the outside the expenses should have come to £60. Here we have apparently a charge of £109 for a bit of printing.
– And it took over a week to print the report.
– I am only making a comparison. 1 have had a very large experience of select committees and select committee printing in New South Wales, and I know that I have never seen an item so staggering as this one. But as regards the report itself, I hope that the Senate will recognise that it is worded in a studiously moderate manner. It makes only such recommendations as appear to be requisite for the carriage of mails, while other questions which necessarily formed part of the investigations are dealt with with an even lighter hand.
– I presume that the Senate intends to pass the motion. I merely rise for the purpose of expressing in as few words as possible the views of the Government. The report consists of two parts. The second paragraph of the first part affirms the desirability of a daily mail service, with certain requirements as to hours of departure and arrival. This concerns particularly the department of the Postmaster-General, whose views I am expressing. There is no doubt that it is desirable that this recommendation should be carried out, but before it can be carried out, several questions have to be considered, and the principal one is that of cost, which will be very carefully gone into. It is the intention of my honorable and learned colleague to call for tenders eis recommended in the last paragraph of the report. If without any material increase of cost this can be carried out, I have no doubt that it will be done. If, on the other hand, it turns out that it will cost a sum of money which will be a serious addition to the burdens which already areinvolved in the carriage of these mails, and which Vill fall principally upon Tasmania, then the greatest care will have to be exercised before such a proposal is carried into effect, and the Government are supporting the adoption of the report simply because it affirms the desirability of this being done, leaving the question of its practicability and the determination of its cost to the Government. With regard to the other proposal, the affirmation of the report is that the ownership of a line of steamers should be considered at the same time as the taking over of the State railways. There is no objection to affirming that proposition, 47 k because whatever views we may hold as to the ownership of steamers for this purpose by the Commonwealth - and I am expressing no opinion on that - we can certainly all agree that communication between different portions of the Commonwealth ought to be facilitated as. much as possible, and that when we come to the question of taking over the railways, certainly the establishment of a line of steamers ought to be considered. For these reasons I hope that the report of our own committee, especially as it is couched in such moderate terms, will be adopted.
– In agreeing to the motion I do not for one moment wish it to be understood that I am assenting to the propositions submitted in the report. It is most unfortunate that we are asked to adopt a report of this kind with only a few minutes of the session to run. I’ had hoped that Senator Keating would have seen fit to postpone the motion and give us an opportunity of entering upon a full and thorough discussion of the very important matters which are introduced to our notice. I find that witness after witness - representatives of chambers of commerce, and accredited representatives of public bodies to which Senator Keating referred - have stated without equivocation or reservation that the present communication is ample.
– The steam-ship companies say that.
– I am only taking the witnesses as they appear here. On page 45, curiously, I find three witnesses all affirming that they represent the Chamber of Commerce of their particular port, and that their present accommodation is ample.
– And they are also local agents for steamship companies.
– That may be. I happened to open the report at page ‘45, but, for all I know to the contrary, every page may contain evidence of the same kind.
– It is not so.
– I venture to say that the Senate was led to believe, until I accidentally opened the report, that there had been almost unanimity on the part of those duly accredited .representatives of public .bodies. I am not at all certain that we shall be doing the right thing in adopting £he report, and to that extent leaving the Government to believe that we are in favour of the proposals therein submitted. It is possible that if the report is adopted the Government may feel that it is some indication on the part of the Senate that it desires the recommendations to be carried out. I do not desire the Government to do anything of the kind. I do not say that it is not a desirable thing to do; but I submit that there is not an opportunity for the Senate to consider the report and to give any indication as to what its matured judgment would be. I suggest that it would be very much better to adjourn the debate until the Senate has had an ample opportunity of considering the very weighty questions which have been brought to its notice.
– I certainly am not in a position to vote on this question just now. I have not had an opportunity to read the report; therefore, if I am forced to vote, I must vote for time for further consideration. I hope that Senator Keating will not press his motion to a division to-day.
Debate (on motion by Senator Clemons) adjourned
The PRESIDENT reported the receipt of a Message from the House of Representatives, acquainting the Senate that it had agreed to. the amendments recommended by the Acting Governor-General.
– We have now come to the end of the business on the paper, and as His Excellency the Acting Governor-General will be here in a few minutes to prorogue Parliament in person, I wish to take advantage of the opportunity to say a few words. I move -
That the sitting be suspended until 22 minutes past 3 o’clock.
I submit that motion for the purpose of enabling me to say in a few words what I believe is the wish of the Senate : that our appreciation of the work of our officers - the President, the Chairman of Committees, and the officers of the House at the table - should be given expression to. Since we met here seventeen months ago, a new Parliament working under a new Constitution, I think we have had ample reason to be proud of the manner in which the duties of our President have been carried out by one who has brought so much experience and judgment to bear upon the discharge of his functions. The Chairman of Committees has had cast upon him perhaps heavier duties than have fallen to the lot of any chairman of any deliberative body for a very long time, and has carried them out with signal success. I think, also, that the thanks of the Senate are due to the officers of the House, who had to deal with a great many new phases of Parliamentary procedure, and have dealt with them in an eminently satisfactory way. Our thanks are likewise due to the officers qf the Hansard staff who have carried out their important and arduous duties in a most satisfactory manner. In wishing honorable senators the pleasantest possible recess - I might add also the longest possible recess - I hope I may be allowed to.add a personal word. That is to thank honorable senators from all the States, on behalf on my honorable and learned friend the PostmasterGeneral and myself, for the kindness and consideration which have been shown to us in the conduct of business. We have had strenuous differences of opinion. We have often on both sides said things which, perhaps, we should not have said in cold blood. -But at the same time I am quite certain that everything that has been done here has been done in the best interests of the Commonwealth, and proud as I am of having occupied the position of leader of the Senate during a period when so much new and important work had to be done, I feel that that position has been made a pleasant one by reason of the kindness and consideration which I have received from honorable’ senators on all sides.
Senator MILLEN (New South Wales).I beg to second the formal motion which has been submitted by the Vice-President of the Executive Council. I also desire to add, as briefly as I can, that the appreciation expressed by the Vice-President of the Executive Council as to the loyal assistance rendered to the Senate by our officers, is fully shared by all honorable senators on this side. I should also like to add that Senator O’‘ onnor’s kindly remarks of a personal nature are cordially reciprocated on this side. I think that honorable senators will carry away with them from the Senate nothing but kindly recollections one of another.
We met here at the beginning of the session with the disadvantage of being strangers. That was a disadvantage which had to be overcome; As time has gone by the most friendly relations have existed between honorable senators, so that when we reassemble at the beginning of next session it will be as old friends, though we shall still have our party differences.
– Senator O’Connor forgot to mention one name when ho was thanking those who have rendered services to the Senate. That is the name of Senator Dobson, who has taken the choir on many occasions during the absence of the Chairman of Committees. I think I am only expressing the general opinion of honorable senators when I say that Senator Dobson has carried out his duties as temporary Chairman to the satisfaction of every one of us. He stepped into the breach time after time when our Chairman was exhausted or absent through ill-health, and conducted the business of the Senate in a highly satisfactory manner. I desire for my own part to thank him for the courtesy which he has exhibited towards me time after time, when I kicked over the traces a little, as I think most of us did occasionally. I think, however, that with all our kicking over the traces nothing has been said in this Senate which has left the slightest sting behind it.
– Before putting the motion, perhaps I may be allowed on behalf of myself, the Chairman of Committees, and the officers of the Senate, to return thanks for the kindly expressions of appreciation that have fallen from the preceding speakers. I have personally to thank honorable senators - and I am sure that the Chairman of Committees has also to thank them - personally for their kind consideration in enabling us to perform our duties. I think I may fairly congratulate the Senate upon having so conducted itself as to establish that character for high and decorous conduct which was expected from the first Federal Senate of Australia.
Question resolved in the affirmative.
The President having resumed the chair,
His Excellency the Acting GovernorGeneral entered the chamber and, being seated, a message was forwarded to the
House of Representatives intimating that His Excellency awaited the attendance of the members in the Senate Chamber, who, being come with their Speaker,
The Clerk of the Parliaments received at thebar, from Mr. Speaker, the following Bills:-
Appropriation Bill (1901-2). Appropriation Bill (1002-3). Appropriation (Works and Buildings) Bill.
His EXCELLENCY was pleased to notify to the Clerk of the Parliaments his assent to the following Bills : -
Appropriation Bill (1901-2). Appropriation Bill (1902-3). Appropriation (Works and Buildings) Bill. Electoral Bill. Parliamentary Allowances BillClaims against the Commonwealth Bill
His EXCELLENCY was then pleased to deliver the following speech : -
Gentlemen of the House of Repre sentatives,
Gentlemen of the Senate and of the House of Representatives,
Cite as: Australia, Senate, Debates, 10 October 1902, viewed 22 October 2017, <http://historichansard.net/senate/1902/19021010_senate_1_12/>.