2nd Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
– The Earl of Jersey, formerly Governor of New South Wales, has intimated his intention of being present this afternoon to hear the debates, and I propose, with the consent of the Senate, to offer him the courtesy of a seat on the floor of the Chamber.
Honorable Senators.- Hear, hear.
– I do not think that the honorable and learned senator ought to argue the question.
– I only mentioned that as a reason which might induce the leader of the Government to consent to an adjournment over Tuesday. It is very desirable that honorable senators should know the intention of the Government in this regard, in order to be able to make their own arrangements, ifthey do not wish to be in Melbourne on Tuesday.
– It will be remembered that the sessional order provides for the House to meet on Tuesdays, “ unless otherwise ordered.” If the business of the Government is advanced in a fairly satisfactory way, I shall be prepared tomorrow to say whether I shall ask the Senate to adjourn over Tuesday.
– And if the progress of business is satisfactory, probably the honorable senator may consent to adjourn over Wednesday?
– I shall not ask the Senate to sit unnecessarily, if it can be avoided.
– That is an inducement to us to be good?
Senator KEATING laid upon the table the following paper : -
Report of the Public Service Commissioner on matters referred to in debate in Parliament on the scheme for the classification of the Public Service.
Sir John Forrest and the Labour Party,
asked the Minister representing the Treasurer, upon notice -
In view of the remarks of the Right Honorable the Treasurer, Sir John Forrest, reported in the Age of 1st November, that, of the nineteen State Assembly seats in his electorate, none were won by Labour candidates at the recent election, is it the intention of that honorable member (seeing that he is a Minister in a Government supported by the Labour Party) to resign his seat in the Cabinet; or resign his parliamentary seat and contest the constituency to ascertain if his position in the Government meets with the approval of his constituents?
– The answer to the honorable senator’s question is as follows : -
My colleague, the Treasurer, has desired me to say that being anxious to allay the anxiety of the honorable senator, he is happy to inform him, that he has had, through a long course of years, so many marks of approval and regard from his constituents that he is satisfied no further assurance of their continued confidence is either requisite or necessary.
Motion (by Senator Pearce) agreed to -
That the Standing Orders Committee be requested to take into consideration the advisability of an amendment or addition to standing order No. 194.
Bill read a third time.
” WHITE AUSTRALIA “ POLICY.
– I move -
That, in the opinion of this Senate, the time has arrived when, in order to effectually carry out the policy of “ a White Australia,” legislation should be introduced to provide for -
The cessation of the importation of coloured labour, under regulations, to carry on the pearl fishing industry in North Australia.
The return of the coloured labourers imported under agreement to work in the industry.
The assisting of theindustrybybonus or otherwise to enable the replacement of . the coloured labour by white labour.
When we were dealing with the Immigration Restriction Bill, it was pointed out that in the north-west of Western Australia and the north of Queensland there was, an industry which was practically carried on by coloured labour, and the question was asked whether the Bill was to be aimed at the employment of coloured labour in that industry, as well as at the introduction of coloured labour into the Commonwealth. The Government of the day announced their intention to treat coloured labour on pearling boats in the same way as coloured labour on oversea ships, and regulations were drawn up to carry that intention into effect. But in each pearling district of those two States we have allowed not only the coloured labour then employed to continue, but also a continuous influx of Asiatics into the industry. In Western Australia we have had a large influx of Malays and Japanese ; and, owing to the increase in the price of pearl-shell and the consequent introduction of a number of new pearling boats, a large number of those persons have been imported under agreement to be returned. Prior to Federation, under the Imported Labour Registry Act, Asiatics were allowed to be imported into Western Australia to performlabour, on condition that, at the expiry of their term, they were to be deported to their own country at’ the expense of the importer. When rigid regulations were drawn up, it looked as if the numberof Asiatics inthe State could not be increased, but the regulations were more honoured in the breach than in the observance, and the Asiatic population was largely added to as the result of the agreements. So far from being deported, they were allowed to remain in the State in large numbers: The Commonwealth Government undertook to see that that result should not occur under the Immigration Restriction Act. But it is a singular feature of the administration of each Government that, notwithstanding the rigidity of the regulations, and the fact that the employers were under bond to return the Asiatics, every year has seen a large and continuous increase in the number of them employed in the pearling industry. From 1894 to 1901 567 Asiatics were imported under the Imported Labour Registry Act into Western Australia, under a bond to return them within twelve months, in default of which the importer had to forfeit a certain sum. Although the agreements were made for that term, still they could be extended., butcould not be broken. From 1894 to 1901 only 32 of the 567 imported Asiatics were returned, 109 agreements were still in force, and 426 persons, had either evaded their agreement or had been allowed to remainindefiance of its terms. A reference to the Senate papers of 1903 and1904 will show that there were imported into the Commonwealth under agreement 717 Asiatics in 1902, and 1189 Asiatics in 1903. According to the paper laid on the table of the Senate, under the Statute, on 10th August, 1905, in relation to the Immigration Restriction Act, there were 1,532 Asiatics admitted to Western Australia during 1904. In order to show the difference between the number admitted anl the number returned, I refer honorable senators to a paper presented to the Senate on the 25th August of this year. According to that return, in 1904, there were 913 Asiatics under contract returned, or 276 less than were imported in the previous year, and 619 less than were imported during the same year. There were 419 Japanese imported, and 152 returned, showing a gain of 247 ; there were 461 Malays imported, and 220 returned, showing a gain of 141 ; there were 524 Papuans imported, and 325 returned, showing a gain of 199. There were, inthat year, 1,404 Asiatics imported, and 827 returned, showing a gain of 607 ; and the total gain in three years was 1,500.
– Is there any provision for paying the cost of their return ?
– The whole cost has to be borne by the importer who enters into a bond.
– The importer does not deposit any money ?
– No. It is urged that if we prevent the importation of Asiatics we shall cause the cessation of this industry. I do not think that will be the result ; but even if a partial stoppage were caused it would not be an evil. The testimony of experts is to the effect that the pearling industry of Australia is within sight of the end, if the present methods are continued. The pearling industry is one which depends on deep water for its development, and if the deep water is exploited the mainstay of the industry is gone, because the shallow waters are fed from the deep waters. In the early stages of the industry in Western Australia and Queensland, the shallow waters were first of all depleted of pearl- shells-, and now the deep .waters are being dredged, and the testimony of the experts examined by Judge Dashwood and Mr. Warton, the two Commissioners appointed by the Commonwealth, is that if the present methods are continued the deep breeding grounds of the pearl shell will be so depleted that the shallow waters will fail in supply, and the industry become extinct.
– If the industry is to become extinct, why bother about “the coloured labour ?
– I think I. shall be able to show that it would be good policy to so arrange that the industry shall once more be directed to the shallow waters, so that the deep waters may be -left as a breeding ground. Mr. Warton reported that at the date . of writing there were 1,680 men engaged in this industry in North- Western Australia, of whom no were white men, mostly British, 55 were Australian blacks, and 1,515 were of Asiatic races and other coloured men, including South Americans. In a document which will be found at page 1079 of the Parliamentary Papers for 1901-2, Mr. Warton points out that these men who are employed sign articles at Koepang and Singapore, and not at Broome, and are imported for the industry on the condition that they are returned by their employers. Of the” 1,515 Asiatics employed on the fleets at that time, 1,000 were under bond to be returned to Singapore or Koepang at the expiration of their agreement, or intended extension ‘of agreement. The balance were men who were in the State before 23rd December, 1897, the date of the Western Australian Immigration Restriction Act. According to the same report, the value of the shell from 1891 to 1895 averaged about ,£94 per ton; and from 1896 to 1900 the average was about £128 per ton, giving an average for the ten years from 1891 to 1900 of £111 per ton. The average price for 1903 was about £150 per ton. In the appendix to the report it is shown that, with a production of £105,403 worth of shell, a revenue of only ,£2,696 from all sources connected with the industry was received. It is sometimes held that this is a very valuable industry to Australia, and yet we learn that in 1901 the revenue from direct sources amounted to only £2,696, while the wages paid in that year .totalled £30,824. In connexion with the amount of wages paid, I wish to point out that there is what is known as a “slop chest,’’ or practically a floating store, from which the men employed are supplied with goods. This floating store is very often fitted out and loaded at Singapore,! and1 -as it goes straight to where the fleet is engaged, no duty is paid to the Commonwealth Government. The only time that money is spent on shore is during the monsoon season, the supplies during the rest of the year being obtained from the “slop chest,” which is the property of those who own the pearling fleets. The amount of trade done can be gathered from the fact that of the sum of £30,824 paid in wages £16,814 was advanced through the shipping office. That was money advanced while the fleet was at sea, and expended at the “ slop chest,” leaving only £14,000 to be divided between the money sent to Asiatic homes and that spent ashore. On page 1012 of the Parliamentary Papers for 1901-2, we are shown (that the present cost of a boat and crew is £472 per annum, and that the return is 7 tons of shell, valued at £105 per ton, or £735, showing a net profit of £263 per boat. My desire is to prove that white men could be paid fair wages for this work, without absorbing all of this profit, if a bonus of so much per ton were paid by the Government. The bonus required to supplant coloured labour with white labour would not be very high. Mr. Warton made an estimate that the cost of European labour would be ,£812 per boat, which, with a net return of £105 per ton, would mean a loss of £77 per boat. That, of course, is on the basis that the white crew would get no more shell than the coloured crew does now, but that is not the general experience of the difference between coloured labour and white labour. To cover the loss, it would be necessary to have a bonus of £1 1 per ton ; and by that means the industry could be carried on by Europeans, with Australian rates of wages, and no loss to the pearlers.
– Are the people who conduct the industry not entitled to any profit ?
– I am at present showing the actual cost of running the boats, and pointing out that with European labour, while there would not be any profit, there would, at any .rate, be no loss.
– What would the bonus cost the Commonwealth per annum ?
– That, of course, would depend on the quantity of shell received.
– But taking the average of the shell raised hitherto ?
– I think I have the figures, which I shall quote later on.
– Can the honorable senator tell us the rate of wages on which he based his last estimate?
– I did not take out all the details, but the wages are given in the Parliamentary Papers for 1901-2.
– Can the honorable senator give us any idea of what the wages are ?
– No; I have submitted Mr. Warton’s estimate just as he gives it.
– Can the honorable senator tell us how many white men are now engaged in the industry ?
– I have already given the number. In Western Australia, 550 tons of shell per annum are obtained outside of the three-mile limit, and 150 tons inside. That is a total of 700 tons of shell, so that a bonus of per ton would amount to .£7.700, which, according to Mr. Warton’s estimate, would be necessary to supplant coloured labour with white labour, and yet prevent any loss in the industry. The revenue received by the Government at Broome from direct sources amounts to £1,500 per annum; and’, taking into consideration the duties on stores and shipping material - which, although landed at Fremantle, are intended for use at Broome - the Federal Government and the State Government together receive, as the result of the industry in Western Australia, about £20,000 per annum. Mr. Warton arrives at the conclusion that the shell in shallow water is recruited from the shell in deep water, and, at page 1083 of the Parliamentary Papers, he says -
Speaking generally, the trade in these waters has always been worked with coloured labour under white supervision and ownership. That is, with coloured divers, tenders, and crews. Since the introduction of the diving apparatus in 18S5, there have been altogether about forty or fifty individual white divers.
To my knowledge, there is at the present time engaged at Broome a white diver, who is obtaining satisfactory results. On page 1084 of the Parliamentary Papers, Mr. Warton estimates the cost of working a lugger with coloured labour at £35 per month, while he estimates the profit as follows : - 4J tons of shell, at £150 per ton, £675; pearls, £125; “slop chest,” £40; a total of £840. The wages of the coloured crew, according to this estimate, amount to £420, and the wages of a diver to £100, or a total of £520 ; leaving a balance of profit of £320. At page 1087 it will be found that he admits that fishermen from Great Britain or Scandinavia might be imported at wages which would not prohibit the industry. His previous estimate was based not on the wages he thinks might be charged, but on Australian rates of wages. Further on he says that he thinks it impossible to payably work the industry under present conditions, that is to say, in . deep water, with white labour. I quote that because I do not wish it to be thought that I bring Mr. Warton forward as an advocate of the employment of white labour in the industry. He has reported against it if it is to be a payable one under present conditions. But I say that, whilst taking up that attitude, he admits that if fishermen from Scandinavia and Great Britain were introduced at the rate of wages which they receive, the industry could be carried on by their labour at a profit.
– But the honorable senator would object to those men coming in to work at less than the current rates of wages.
– If it could be shown that there were not men in Australia available for the work, the employers in this industry would have the right to introduce such men, and there is nothing in the Immigration Restriction Act which would prevent them from doing so.
– Is the honorable senator willing to apply that principle to other industries ?
– Yes; where it can, be shown that suitable labour cannot be obtained in Australia.
– That is good news to me.
– Senator Dobson should know that any employer has a right to import labour under those conditions.
– It is a question of the rate of wages paid. If the rate of wages paid in Australia is ios. a day, the honorable senator would not consent to the introduction of men to work for 2s. 6d. per day.
– The law is that if there are no men in Australia available for the work, or possessing the skill required, any employer is free to import men to do the work. In the celebrated six hatters case Senator Gould is aware that, while objection was taken to the landing of those men, as soon as their employer showed that he could not get suitable or sufficient labour in the Commonwealth they were allowed to land.
-Col. Gould. - I know that the labour unions did all they could to prevent their landing.
– I do not care what the labour unions did; the law is as I have stated it. At page 1091 Mr. Warton shows that the extra cost of raising shell by white as compared with coloured labour ranged from £45 to £83 per ton. Coming now to the Northern Territory and Queensland, Judge Dashwood in his report on the industry in the Northern Territory, which will be found at page 938 of the Parliamentary Papers for 1901-2, shows that in the Northern Territory the number employed is 291, and at Thursday Island 2,214. The number of Europeans is, in the Northern Territory, nine ; and in Thursday Island, seventy-six; whilst in the Northern Territory, there are 266 Asiatics employed, and sixteen other coloured labourers. At Thursday Island, the number of Asiatics1 employed is 1,110, and the number of other coloured labourers, 1,028. The value of shell raised at Thursday Island in 1897 was £126,042; in 1899, £130,165; and in 1901, £105,403. So that in Thursday Island this industry is rapidly declining. Although the figures do not show a very rapid decline, it must be remembered that in 1897 shell was very much cheaper than it was in 1901, and the return of £105,000 for 1901 represents little more than half the quantity of shell represented by the return of £126,000 for 1897. In the Northern Territory the value of the shell, raised in 1897 was £15,666; in 1899, £29,509; and in 1901, £17,168. So that a decline is shown there also. Of Queensland shell one-sixth of the total quantity secured is raised within the three-mile limit, and the rest beyond the three-mile limit.
– Over that we should have no control.
– We might exercise control where the boats engaged in the industry make our ports their base. I find that the approximate Customs revenue is at Thursday Island - on stores, &c, £3,200, and for licence fees £180. Judge Dashwood comments on this important phase of the question. At page 991 of the Parliamentary Papers it will be found that he says -
Those whose opinions are entitled to weight have urged from time to time that if the industry is to be preserved, the pearl-shelling areas should be closed for certain periods, to allow of the ‘recuperation of the shell bed.
Further on he points out that shallow beds, are recruited from deep-water beds, agreeing in this respect with Mr. Warton. He says -
The inspector of pearl fisheries, Mr. Bennett, draws attention to the fact that the figures show the yield of shell from Torres Straits fisheries has been gradually diminishing during the last five years, notwithstanding that the number of boats and divers has considerably increased.
The average* take per boat in 1897 was 5 tons 14 cwt., and in 1902 2 tons 9 cwt.
– Does the honorable senator propose to introduce a Bill to provide for a close season, or to ask the Government to do so?
– I propose to ask the Government to prevent the further importation of coloured labour for the industry. As the existing agreements expire I think that a bonus should be< given on the pearl-shell raised, to encourage the use of white labour in the industry. I believe that one effect of that would be the abandonment of pearl-shelling in the very deep waters, and that it would continue to be carried on only in shallow waters.
– Because the white diver will not take the risk involved1 in working in deep waters. There can be no doubt that it is extremely dangerous. At Thursday Island, and particularly in the case of the Japanese, deaths are very frequent amongst those engaged in fishing in deep water. Sooner or later paralysis follows almost inevitably as the result of diving in deep water. At page 992 of the Parliamentary Papers it will be found that Judge Dashwood says -
A consideration of the foregoing figures certainly points to the conclusion that the beds are being drained to too great an extent, and that steps should be taken to regulate the fishing, and so prevent further depletion.
Further on he says -
I think all deep-water areas should be’ permanently closed, or at any rate until there are appliances which will enable them to be worked without the deplorable loss of life which the statistics show has occurred in the past, and also to constitute permanent reserves from which spat would be distributed by currents over the ordinary ground.
– Would the honorable senator mind saying how the areas can be closed, when they are outside the th’ree-mile limit?
– In the case of boats making our ports their base, it could be made a condition that they should be closed. We could deal with them in that matter as we do in regard to duties imposed on ships’ stores.
– Will white men go into a risky business of this sort?
– Would the honorable senator allow the dark man to engage in such’ a business ?
– I was going to ask Senator Dobson, who looks upon the Japanese and the Indian as his brother, whether he would put them in an industry which he does not consider fit for a white man? Is this all that the honorable senator’s fraternal feeling is worth? I might ask further whether he would permit the Japanese and the Indians to engage in work which is too dangerous for the white man ?
– Certainly not.
– Does the honorable senator desire to shut them out because the work would be dangerous to their lives?
– No; but because I believe that the industry should be reserved for white people.
– The honorable senator’s argument is that the white man should have a bonus for endangering his life.
– No;’ because I have said that I would prevent pearl-fishing in deep water.
– I asked the honorable senator whether he ‘proposed to introduce a Bill?
– The honorable senator asked whether I proposed to introduce a Bill to provide for a close season, and I said that I proposed to ask the Government to prevent the further introduction of coloured labourers for the industry. Certainly a Bill should be introduced to regulate fishing, and I. believe that such a Bill has been promised by the present or by a previous Government. Judge Dashwood explains in his report that white men started the industry and worked in it in 1873 in Torres Straits. In 1886 and 1887 it was first started at Thursday Island by white men; but white men practically disappeared from the industry in 1894, owing to the competition of coloured alien labour. That is Judge D ashwood’ s statement, as the result of his inquiry.
– Are these poor blacks to be allowed to do nothing ?
– There is plenty for them to do in their own country.
– They are to be driven out of the stoke-hold, out of the sugar fields, and now out of the sea !
– In paragraph 9 of his report dealing with the prospect of the industry, if white labour had to be employed, Judge Dashwood says that the great majority of the witnesses who appeared before him stated that it could not be carried on, but four of the witnesses were of the opinion that the industry could be carried on with white labour. It is noteworthy that, with the exception of four, the witnesses examined were the owners of pearling boats, the employers of the coloured labour, the men who were making profits out of the industry. We can easily imagine that -those men are quite satisfied with the present condition of affairs. Of the four men who said that the industry could Le carried on by white labour two were men who had been making their living in the industry as divers, and who were subsequently driven out of it by the influx of coloured Asiatics.
– Does the honorable senator think that the Commonwealth will be able to stand the payment of bonuses to all these different industries ?
– We are paying a bonus to the sugar industry. If this industry is worth saving, it .should be carried on by white labour, and I believe that the time will come when it .could be carried on profitably by white labour without a bonus. I believe that during the transition period, when those engaged in the industry were prevented from employing further coloured labour, and had to deport the coloured labourers now employed, it is possible that a bonus might toe needed, but eventually, T think that it would not be required. Judge Dashwood says that undoubtedly white labour can carry on the industry, but that white men could not carry it on profitably at present prices. I come now to deal with a question which will probably be raised by those who object to my motion, and that is that, if we prevent the employment of coloured labour in this industry, those- engaged in it will establish their headquarters outside of Australia, and the industry will still be exploited by coloured labour. Judge Dashwood made it his business to inquire ‘ into the possibility of the proposal to have a base for pearling fleets at Merauke. He visited this place aru the steam launch White Star, on which he conducted his inquiry, and it was delayed for twenty-four hours in entering the port owing to the insufficient depth of water.. The White Star is but a small steam launch, and yet, because of the shallow water, it was delayed for twenty-four hours before it could enter this port, which was to supplant Australia;!! ports as the head-quarters of a pearling fleet. Judge Dashwood explains that the harbor of Merauke is a bar harbor, and, furthermore, it is 140 miles from the pearling ground! A feature of the industry is that it must have a base for operations, and that base must be within a reasonable distance from the pearling grounds. A port 140 miles from the pearling grounds is altogether too distant to bea suitable place for a pearling fleet. It must be borne in mind also that the vessels employed in the industry are not steamers or steam’ launches, but sailing luggers. Inthis particular part of Australian watersthere is a prevailing trade wind, and the vessels engaged in the pearling industry, in order to reach Merauke from the pearling grounds, would have to beat up the whole distance against head winds.
– Is the honorable senator not aware that the south-east monsoons blow for three months in the year towards Merauke from the pearling grounds ?
-I do not knowpersonally anything about the industry. I am giving Judge Dashwood’s statements for what they are worth. To sum up, he considers that Merauke isaltogether unsuitable as a head-quarters for the fleet. A significant fact in connexion with the Judge’s report is a petition,, signed by forty-one white residents in Torres Straits, in favour of the employment of white labour, and asking for the prevention of the importation of more Asiatics. Many of the signatories are business men. Honorable senators who choose to look through the evidence will find that many of them are men who are trying to make a living in Torres Straits. Though it may be urged by some who oppose my motionthat to carry out what 1 ask would annihilate the industry, these men evidently have faith that such would not be the effect,, and that white mert could carry it on.
– Of course the business men would make more money if whitelabour were employed and a bonus paid.
– On page 23 of his report, Judge Dashwood quotes a letter from the business men of Thursday Island. This should appeal to- Senator Macfarlane, who pays- great weight to anythingthat Business men may say. The letter contains the statement that the present system exhausts the shelling ground withoutcreating permanent settlement on the adjacent island or the mainland. That is one of the indictments of the present system - that no permanent settlement accompanies it. You practically get a nomad class of persons, who merely look to maketheir temporary homes at the pearling cen- tres, and who afterwards, if they can dodge the Immigration Restriction. Act, may come to live in one of the southern States. I do not propose to read the list of witnesses examined by Judge Dashwood, but if any honorable senator chooses to peruse it he will find that, with very few exceptions, they are owners of pearling boats. One of them owns eighty-two ‘boats.
– .Who is he?
– His name is George Smith. Another man is the owner of thirteen boats, another of sixteen ; others own fifteen, seventeen, and so on. One could hardly expect these men to say, “ We think you should abolish coloured labour, and compel us to employ white men.” The employment of coloured labour enables them, as Mr. Warton says, to make a profit of as much as £263 per boat. But this is the class of men to whom we have to go for information now, because all the white men who are interested in the industry are concerned to continue it as at present. The white divers who at one time manned the boats at Thursday Island have been compelled to go elsewhere to look for a living. The few white men who still remain, from whom evidence has to be collected, say that the in-dustry could be profitably carried on if the Government were to regulate it. lt is said by some that the employment of Asiatic labour in the industry is not an infraction of the White Australia policy. One of the powers intrusted to the Commonwealth Parliament is the control of fisheries. Would any one say that the fisheries of England are not part of the industries of England ? Would any one say that the fishermen of England are not citizens of England, and that they are not just as valuable to England as are the men who work in the shore industries? Certainly they are. Why not apply the same principle to Australia? Here is an industry carried on upon the shores of Australia, some of it within the three-mile limit. All of it is carried on in the neighbourhood of Australian ports. I say that this is an industry which has just as much right to be looked upon as Australian as has the hat or boot industry in Melbourne. ‘ We cannot assist the pearling industry by protective duties if we would. We cannot by the imposition of a duty raise the price of pearl one penny. But if the policy of the Commonwealth is to be that the people are to be penalized by pro tective duties for the assistance of industries, I contend that pearling has as much right to consideration as have the bootmaking or the hat-making industries. Pearling is at present worked by coloured labour. It is shown that within certain limitations it can be carried on by white labour.
– With a bonus.
– With a bonus during the transition period. But it is further shown’ that those very limitations that I have indicated would be for the benefit of the industry, because they would have this effect - that, instead of rapidly exhausting the industry, to the aggrandisement of a few, there would be a conservation of it, so that it would last, perhaps, for ever, or as long as would concern the present generation, at any rate. The industry, while, perhaps, employing fewer white than black men to-day, would be of far greater benefit to the country, because those white men would be citizens of Australia, and would be able to participate in the national life of the country. When one remembers what the English fishermen ha.ve been to England for the recruiting of the British Navy, one cannot over-estimate the value of the pearling industry as a recruiting ground for our Navy that is to be. These fishermen, if white men, would be a valuable asset to our country. But what are they to-day? Are they of any value to Australia? A few rich men are reaping a harvest, but so far as concerns any benefit to the country itself - so far as. concerns building up an industry which’ is conferring any benefit upon the Commonwealth - the pearling industry is of absolutely no use whatever. Nor will it ever, be of value while it is carried on under present conditions. Personally I should rather have an industry which would return on the production only one-tenth of what it is at present returning, the whole of that tenth being produced and distributed amongst people who were good citizens of the Commonwealth, than have a larger production which conferred no benefit upon Australia as ‘a whole, nor assisted to’ promote good citizenship. I now come to another aspect of this question. It is a most regrettable one. That is the effect of this cancer spot in Western Australia - because it is nothing else - on our unfortunate aboriginal race. I have before me the report of the Royal Commission on the condition of the aboriginals in Western Australia by Dr. Roth, of Queensland. One of the most regrettable features of that report is that in which he deals with the contact of Asiatic races with the aboriginals of Western Australia. While the report is couched in very plain terms, I consider, that it is my duty to let honorable senators know what is the effect of permitting these people, with their loose notions of morality, to come amongst us, and what is the effect on the unfortunate aboriginals of our country. I shall first quote from the evidence of Mr. John Byrne, sergeant of police at Broome. In answer to the question^’” Is there any aboriginal prostitution in your district ?” he says -
There is a good deal of it between the Asiatics and aboriginal women. They come ashore from the boats at different points, and at Broome, and go to the native camps. There does not seem to be any law in force to prevent them landing.
That Has all occurred under Commonwealth administration. We are responsible for it.
Is not a large proportion of these Asiatics forbidden to land? - According to the law they are not. They are imported as seamen only.
In your opinion a large proportion of this prostitution is due to men who should not be allowed to land? - Yes.
The obtaining of wood and water is a great excuse for prostitution? - Yes. The natives cut the wood, and the pearler has thus only to be in a creek for 24 hours instead of, perhaps, three days. At Lft Grange Bay (where I have a constable, tracker, and three horses) the pearlers give the natives a bag of flour or rice in return for the wood.
Do you consider that this evil could be minimised by insisting that the pearling boats obtain their wood and water at certain specified places only ? - Yes ; of course it would.
Is there any liquor supplied to the natives in this district? - Yes. A great deal of liquor is supplied to natives in and around Broome during the laying-up season. The boats also lay up at Cygnet Bay, and there is a lot of trouble there. Some coloured men who supplied drink to the natives at that place “were taken to Derby, and sentenced to three months imprisonment in the Broome Gaol. During the last 12 months fines amounting to about £200 have been levied (mostly on Asiatics) for this offence. There have been a few cases of drink having been supplied by white men. I am of the opinion that in these cases, where drink has been supplied bv any one to natives, the full penalty of the law should be imposed.
– The honorable senator is making a good case for the regulation of the industry.
– We have had regulations for over three years, and this is the result.
Are there any other matters you would like to bring Before my notice with regard to the aborigines in your district? - With regard to the Asiatics mixing so much with native women, I think a law should be brought into force whereby the police could order the Asiatics to be aboard their boats at a certain time, and not be wandering around the town. In the laying-up season they roam about the town, and it would take twenty policemen to supervise them. They do the same at La Grange Bay, Beagle Bay, and Cygnet Bay. They are always in these places for two or three months of the year. I think some power should be given to the police to order them to go back to the boats, no matter what their masters think of the mailer. It should be made an offence for these men to be found ashore at any time. They go ashore at La Grange Bay, and wander away until they find a batch of natives and cohabit with the women. They take with them gin, tobacco, flour, or rice, all for prostitution.
I shall’ next quote the evidence of the SubCollector of Customs, Mr. John McKenna, at Broome : -
Have you ever taken action ? - I have never seen a prohibited immigrant ashore for anything of the sort. I have myself heard disturbances in the night time caused by Malays and Manillamen visiting the blacks’ camps and interfering with the women..
In one breath, he says that he never heard of anything of the sort, and in the very next breath he states that he has heard of disturbances in regard to the things complained of. I next quote from the evidence of Mr. Graham Blick, District Medical Officer, and Resident Magistrate, of Broome: -
I understand that there is a good deal of prostitution going on where the boats land for getting wood and water. Is this so ? - Yes. It has been reported to me. I should think that there would be a great deal of it.
The guilty parties are generally aliens who have been specially exempted by the Commonwealth Minister of External Affairs? - Yes, but I think many of the whites are just as much to blame in that matter as the coloured crews.
Are the otherwise prohibited immigrants (Malays, Manillamen, &c.) allowed to come on shore above high-water mark? - They must come on shore sometimes to do ‘the work of their boats. You cannot have a vessel come into port to discharge cargo and take stores, &c, and keep the crew on board. The crews are signed on and dealt with under the Merchant Shipping Act.
Is it a fact, then, that these Malays and Manillamen, otherwise prohibited from coming into the State, are coming in under the Merchant Shipping Act? - Yes. They can come ashore for the purpose of getting stores, -wood, and water, and in cases of sickness.
Do they land for any other purposes? - I donot know. It is possible that they may do so. They are supposed to “do nothing but the boat work. They could never stay ashore long, because their masters are responsible for all of them.
Do they land in the laying-up season for other than boat purposes? - They may camp on shore while_ the boats are being overhauled. Also during sickness.
Is any action being taken against any such men who land for any other purposes than required for boat work? - I do not think any” action litis been taken hitherto. We recognise that it is necessary at certain times for the men to come ashore, but only when they are obliged to.
Here is the evidence of Filomeno Rodriguez, a pearler, of Broome -
Have you ever seen aborigines employed on the boats ? - Yes.
What are they employed as? - Some for cleaning shell, and others for boatmen. A black is sometimes employed to keep a watch on the rest of the crews, so as to prevent pearls being stolen.
Are any blacks employed in “ swimmingdiving “ now ? - No.
Are you aware that many abuses in the way of prostitution take place in connexion with the boats’ crews landing along the coastline for wood and water? - Yes.
– Would it not have ‘ been the same if the crews had been white ?
– My experience of. white men on the gold-fields of Western Australia tells me that it would not have occurred to the same extent.
For the most part, to what nationality do the coloured crews belong? - They are mostly Malays, Manillamen, and Japanese.
Are these Malays, Manillamen, and Japanese the persons who are really forbidden by the Commonwealth law to land? - Yes; some of them are.
I anticipated that a slander would be hurled against the white men, and therefore I decided to quote the evidence of Sub-Inspector William Lappin, of Roeburne, as to the treatment of the aborigines by white men. After dealing with the Asiatics, and practically reiterating the evidence I have already quoted, he gave this evidence -
Do not the whites go after the gins? - Yes, but not to any great extent. The coloured men are the worst offenders.
– Have we not recently had a report reflecting upon the conduct of white people towards the aborigines of Western Australia?
– The report refers, not to conduct of this kind, but to the treatment of the aborigines by the police, in bringing in a large number of them handcuffed, charging exorbitant rates for their stores, and so making money out of the transactions.
– And contains a very strong indictment of the white men on the lines which the honorable senator is now pursuing.
– There was nothing of this kind at that time. Constable Ber tram Henry Fletcher, of La Grange Bay, gave the following evidence: -
How long have you been at La Grange Bay? - Two years and four months.
What are your duties there? - Protecting the natives and keeping immorality down. Those are my instructions.
What is the nature of the immorality ? - Connexion between aboriginal women and Asiaticsemployed on the pearling boats. ls there much of this going on? - Yes, there is a great deal of it, but it would be terrible if no one was there to stop some of it.
Is there much disease amongst the aborigines at La. Grange Bay? - There is some, but I am - pleased to say that there is not so much as when 1 first went there.
How many blacks are there in the neighbourhood of La Grange Bay? - Within my patrol thereare about 400 natives.
What proportion of these do you consider are diseased? - Not quite one quarter of them, as the men are in the majority. The worst cases are generally among the women. To give an instance, a short time ago 30 of the blacks were very bad with venereal disease, and about 17 or 18 of these died.
Were these mostly women ? - Yes, all but one or two.
Were there any young girls amongst those diseased ? - There were none of tender years, but some were as young as 16.
What success has attended your efforts in coping with this evil ? - I have had great success. I suppose there is not one-fourth of the disease that there was when I went there first. This can be proved by the decrease in the supply of medicines.
What steps have you taken to stop immorality -I kept the natives together as much as possible, and when I saw any Asiatics from the boats come Ashore about night-time, I put them in chains for the night. Of course, many of them have got ashore, when I have been unable to see them. I have given the natives work to do to keep them out of mischief.
Surely you could not watch every creek in the neighbourhood ? - Certainly I could not. I have mustered the natives in one or two places, and seen that no men from the boats came near them. Very few natives get away from the camps. One disadvantage is that I have never had full powers to do this. When I have had to come to Broome all the good that has been done has been undone.
Is there nothing to prevent these boats’ crews getting wood and water themselves? - There is nothing to prevent it that I can see.
– Did the honorable senator check the percentages before he read them?
– They are ludicrous.
– There is some de,plorable evidence, but I db not see anything ludicrous about it.
– If the honorable senator will look over the figures he will see that they do not tally. For instance.. the witness refers first to a fourth and then to a tenth.
– I see no inaccuracy in the use of the figures.
– It is an exaggerated statement, because ten quarters are more than the whole.
– It may have been a slip of the tongue on the part of the witness.Does the honorable senator cast any doubt on the quality of the evidence?
– No ; but it would appear that the witness was speaking a little loosely.
– If the honorable senator will read the report he will find that this constable’s statement is confirmed by other witnesses. We are not concerned as to a man being a little out in his arithmetic, but as to the treatment of the aborigines by Asiatic fiends. The revolting evidence, which I feel compelled to submit, is an indictment on the employment of Asiatics in the industry which should cause honorable senators to give some thought to the question, and not to con- cern themselves so much as to whether a man has made a mistake in his arithmetic.
Do the blacks vou mention come to the creeks because of the Malays and other Asiatics? - Yes. Some of them come from the coast, and others from inland. The coastal natives tell them what they can get from the crews, and they are attracted. Some natives come from 100 miles inland to trade with the crews about twice a year.
I have only one other quotation to make, although the evidence teems with convincing passages. Revolting and unpalatable as the details are, I feel that it is my duty to quote them in order to show the Senate what is on the reverse side of the ledger. I shall be told of the profit and the revenue to Australia but I wish to show the evil which is inflicted on the aborigines byAsiatics being allowed to land upon our shores, by quoting the evidence of Mr, Richard Henry Wace, Resident Magistrate and District Medical Officer at Derby -
Have you any information to give this Commission on the effects of this pearling industry upon the coastal blacks?- It is most thoroughly demoralizing to the blacks. In the laying-up season of this year, several pearling luggers laid up at Cygnet Bay. Several cases of supplying liquor to the blacks were brought down here. In every case I asked why the defendants had given the liquor, and in every case I was informed that the reason was that they wanted one of the women. I think that liquor is seldom given in these cases - to the aboriginals, except for that specific purpose. It is the recognised payment. I have treated several cases this year of specific diseases amongst the pearling boats, and I know from my ownknowledgethat it is extremely prevalent amongst these crews, and cannot but have an extremely bad effect amongst the blacks. It is readily communicable, and its worst point ‘is that it is hereditary. It has a morally and physically deteriorating effect, both on the one who contracts it, and the one to whom it is communicated by descent. To my own knowledge, girls have been taken from a mission station in accordance with the tribal marriage customs - young girls of 14 or 15 years, who have only just arrived at maturity, and in perfect health - taken away and prostituted amongst the crews of the luggers, returning after some time suffering from specific disease. One of the main reasons of the, dying out of the black race is the fact that, through prostitution, the women become infertile. This, by the way, applies throughout the district. I know also that members of lugger crews go ashore with guns, ostensibly for self -protection against the blacks. I refer to a case of a member of one of Mr. Pigott’s boats, Pedro Rodriguez, who was shot while stepping out of the boat. I elicited the evidence that he was taking a gun ashore for the purpose of “ self-protection.” While these boats were at Cygnet Bay, a policeman was sent at the urgent request of the pearlers. The policeman got a very bad reception. The constable spent his time bringing Asiatics to trial, and during the intervals that he was away, bringing up persons chargedwith supplying liquor, the crews at Cygnet Bay were wholly without supervision.
If nothing I have said constitutes an indictment against the Commonwealth allowing the employment of Asiatics in this industry to be continued, the report of Mr. Roth, together with the evidence, does. In his report he deals in avery drastic manner with the subject. Summing up the evidence, he says at page 11 : -
Along the whole coast-line, extending from a few miles south of La Grange Bay, to the eastern shores of King Sound, drunkenness and prostitution, the former being the prelude to the latter, with consequent loathsome disease, is rife amongst the aborigines. This condition of affairs is mainly due to Asiatic aliens allowed into the State as pearling-boats’ crews by special permission of the Commonwealth Minister for External Affairs, and allowed to land from their boats under conditions expressed in 1. Edw. VII., No. 17, section 3, sub-section K. The boats call in at certain creeks, ostensibly for wood and water, and the natives flock to these creeks, the men being perfectly willing to barter their women for gin, tobacco, flour, or rice ; the coloured crews to whom they are bartered are mostly Malays, Manillamen, and Japanese; they frequently take the women off to the luggers. Direct evidence of this state of affairs comes from La Grange Bay, from Beagle Bay, where your Commissioner saw native women at daybreak returning on shore from the boats, with presents of rice,&c., and from Cygnet Bay, where the disgraceful state of affairs and effects of disease on the aboriginal population are more fully detailed. One magistrate considers that the whites are just as much to blame as the coloured crews for the prostitution going on where the boats land for getting wood and water. As the result of their intercourse with aboriginal women, the boats’ crews suffer a good deal from venereal disease, and the loss of theirlabour is severely felt by the pearlers. During about three months in the year the fleets lay up at Cunningham Point, Cygnet Bay, Beagle Bay, and Broome, as well as at other places; except perhaps at Broome, this laying-up season is taken advantage of by the more unscrupulous of the pearlers to swell the profits of the slop-chest by getting rid of their supplies of opium and of liquor, no small portion of the latter ultimately finding its way to the natives as payment for prostitution. A still greater evil, and one which may have disastrous results in the future, is that both the Malays and the natives, wilh whom they “are at present allowed to consort, possess in common a certain vice peculiar to the Mahometan. It is highly probable that this habit, practically unknown amongst the autochthonous population of other parts of Australia, has been introduced along this North-West coast-line by Malay visitors during past generations ; the fact remains that these aliens are being admitted into the Commonwealth. Further north, beyond King Sound, along isolated .patches of the coast-line, pearling vessels_certainly do land, and their crews bring fire-arms ashore. A witness states that Asiatic crews may camp on shore while the boats are being overhauled, and also during sickness; according to. tlie form of surety now issued by the SubCollector of Customs, form No. 15, they can be engaged in any duties” ordinarily connected with the vessels. With a view to minimizing the sexual intercourse between the Asiatics and aborigines at present existing and its resultant evils, the following recommendations “have been suggested : Power to be given to the police to order the men back to their boats; reserves to be proclaimed where boats only should be allowed to land, but no aborigines to enter, and vice vend, and the chartering of a patrol boat. One witness suggests that under proper supervision the male natives could earn their own living by cutting wood and getting water for the boats.
The whole report dealing with that phase of the question is an indictment of the employment of Asiatics in the industry. Carried on as it is, it is absolutely useless to the Commonwealth, Because it distributes no wealth here. The earnings go to Japan and the Malay States, while the dividends go to a few rich men in Melbourne, Sydney, Adelaide, and Perth. If we are in earnest on the question of a White Australia, can we allow this excrescence on our industrial life to continue? Are we going to say that this portion of our fishing industry shall for ever be cut off from the benefits of that policy? If we are in earnest, this industry, like all others, must come within its scope. The arguments which can be used to allow the continuance of Asiatic labour in the pearling industry can just as forcibly be used in favour of employing coloured labour in the bootmaking industry. The arguments which can be used in favour of the pearling industry being given over to white men are the same as can be used in favour of industries on the land being assisted by means of Customs duties and otherwise. If the pearling industry be worth saving, as 1 believe it is, we should take early steps to rid it of a baneful influence, and prevent it being exploited by coloured labour for the benefit of a few rich men. If we see that the deep waters are not allowed to be exploited, we need have no fear that the industry will depart from the Commonwealth. It has been shown that the port of Merauke, in Dutch New Guinea, is impossible as a head-quarters for the Torres Strait pearling fleet. It is equally certain that Timor is impossible for the purposes of the pearling fleet, because it is too far distant to be successfully used as a head quarters. I am satisfied that if the Government will take steps to bring in a Bill on the lines indicated, and it is passed, we shall have in the case of this industry what I hope we wish to see in the case of the sugar industry. We shall have an industry manned by white men, who will be qf some service to the Commonwealth, and the wealth of the industry will be distributed, not amongst Asiatic aliens, but amongst workmen of our own nationality.
– I second the motion, pro forma. I am thoroughly in accord with a great many of the statements and many of the contentions put forward by Senator Pearce. I am cordially with Senator Pearce in his expressed desire to prevent coloured people from coming to reside in Australia. I shall be no party to any proposal to relax in any way the White Australia policy we have laid down. I go even further than Senator Pearce, and say that if it were possible to sweep away from our northern shores the whole of the pearl.shell industry it would, in my honest opinion, be to the ultimate interest of Australia. Pearl-shell will always attract coloured aliens, no matter whether it be obtained from Australia or elsewhere. I quite admit with Senator Pearce that white men can work, and do work, in this industry. I have been out on the pearl luggers, and seen white men there engaged ; and at the time I visited Broome there were six white divers employed. At the same time, I say at once that I am not in favour of the whole of the motion, for ample reasons, which I shall shortly state. In the first place, I am somewhat surprised that Senator Pearce should submit this motion. The policy which Senator Pearce asks us to adopt, is contrary to the policy of every Ministry since the inception of Federation, not excluding the Ministry formed by the Labour Party. On the 27th June, “1904, I asked Senator McGregor, who was VicePresident of the Executive Council in the Labour Government, the following question : -
Is it the intention of the Government to prohibit those pearling fleets which have their headquarters at Australian ports from engaging coloured labour for carrying on their occupation on the high seas?
The reply I received was -
No ; but regulations imposing certain desirable restrictions are under consideration.
I asked that question after a Cabinet decision on the question had been arrived at.
– How did the honorable senator know that there had been a Cabinet decision?
– I was so informed. I should like to know now whether the Labour Party, as the result of further information, have altered their policy, or whether Senator Pearce is merely expressing his individual view? Certainly it would be a great change in little more than twelve months to totally reverse the policy of the party in such a matter. I say at once that the Labour Ministry were right in the decision at which they arrived, and in the answer they gave me; and the reasons are perfectly obvious to any one who has taken the trouble to study the question. Senator Pearce labours under the disadvantage that he has never visited those districts, and that he is relying on reports prepared three or four years ago, since which time the conditions have changed enormously. The estimates quoted by the honorable senator as to the price of the pearl-shell are altogether “out,” and therefore the conclusions he draws are of no’ value. It is evident that Senator Pearce does not recognise the immense difficulties which surround this question. I candidly admit that when I visited Broome two or three years ago, I was strongly imbued with the view that the pearling fleets ought to be cleansed of coloured aliens. During a stay_ there, of some ten days, I went out on the pearling boats, and thoroughly investigated the circumstances ; and I came back with a strong opinion, that it would be better to leave matters as they are, lest worse evils should result. However, I advocated cer tain stringent .regulations, which, I am pleased to say, were adopted by the Government, not only at Broome, but throughout Australia. As a result of my visit I issued a pamphlet, from which I quote the following : -
Regarding the vexed question as to whether white men can do the work, I have no hesitation in saying that I believe they can. The work is undoubtedly laborious, monotonous, and full of hardship. The crew are often wet through for days together when the sea is Tough, and fresh meat, milk, and vegetables are luxuries seldom indulged in. But it must be borne in mind that owing to the hurricane season the boats are practically laid up from the middle of December till the end of March - ;that is, during the hottest part of the year. The industry is, therefore, carried on during the eight months of the year, when the heat is least oppressive, and out at sea the temperature is less intense than on lard. In proof of my contention, I need only mention that six white divers, and a score of .white men, were working on the luggers during the season just .closed.
But if it be admitted that white labour can do the work, the question as to whether we should endeavour by legislation to substitute white for coloured labour, has by no means been settled. If the pearl shelling waters belonged to Australia, and were, therefore, under our jurisdiction, I should insist on white labour, as we have done in other Australian industries. But an aspect of this question that has received little consideration, but which transcends all others in importance, is that the pearl shelling on our western littoral is not an Australian industry at all, or, at any rate, is one to only a very limited extent. It is an international industry which has been started, developed, and monopolized by Australia very much to our advantage. Of the 700 tons of shell obtained last year, less than 150 tons were gathered in Australian waters [i.e., within the three-mile limit). The balance was obtained on the high seas, and was the common property of the nations of the world. Any foreign boat has just as much right to work there as we have. If, therefore, we impose conditions which largely increase the working expenses of the industry, we will not destroy it. No legislation an Australian Parliament can impose will do that - but it ‘would in all probability have the effect of shifting the headquarters of the industry from Broome to Koepang in Timor (500 miles due north), where they would sail under the Dutch flag, and carry on the industry exactly as before, except that they would be prohibited from pearling within the three-mile limit, a restriction which is practically immaterial to the pearlers. The boats could put in to the Australian coast for wood and water and stores, as before, but they could not lay up their boats in the hurricane season. The object of the legislation would, therefore, not be attained, while a most valuable industry would be lost t./ Australia.
In considering the advisability of excluding or allowing coloured labour on our pearling fleets, two important questions have to be decided : -
Does the manning of the boats by coloured crews endanger, or is it opposed to the principle of, our “White Australia” policy?
Would legislation insisting on white, labour being employed have the desired effect, or would it mean the loss of the industry to Australia?
The people of Australia have placed on record, I trust for all time, their determination that Australia shall remain only for the white races of the world ; that on national and racial grounds they will admit no one into Australia whom we cannot absorb into our population.
Does this pearling industry give an alien an opportunity of settling in Australia? That is really the crux of the matter; and to make sure on that head was one of the principal reasons that led to my visit to Broome. I went very carefully into the question, and have no hesitation in saying that if the Acts and Regulations are strictly administered, as they are at present, there is not the slightest danger. The system of registration is the most perfect I have seen. Every alien, with one exception, who has been brought to Broome since the passing of the first West Australian Immigration Restriction Act has been accounted for.
Senator Pearce stated that at Broomethere are a number of people who have evidently evaded the provisions of the Western Australian Immigration Restriction Act.
– I quoted the actual figures as given in returns presented to the Senate.
Senator STANIFORTH SMITH.The honorable senator quoted only two documents - the report of Judge Dashwood and Mr. Warton.
– Excuse me; I quoted from returns which, according to statute, were laid upon the table of the Senate.
– As a matter of fact, there are two or three hundred aliens who have been at Broome for a number of years, and who were there before the first Western Australian Immigration Restriction Act was passed. These are what are called “ freemen.”
-i showed that 500 were unaccounted for under the Western Australian Act.
Senator STANIFORTH SMITH.That is not correct. When I was at Broome I obtained particulars of all the freemen, and according, to the statement of Mr. Warton-
– Mr. Warton is not my authority for the statement I made in this connexion. My authority is a parliamentary paper which was laid upon the table of the Senate before Mr. Warton reported.
Senator STANIFORTH SMITH.Mr. Warton assured me that those freemen and others were there before the
Western Australian Immigration Restriction Act was passed. This is the system of restriction as described in my pamphlet -
The resident magistrate’s register- records the movements of every coloured man from the time of arrival to the date of departure. Each change of ownership is noted, as well as the date of his return, and the name of the ship he returned by. The Asiatic must bring with him a doctor’s certificate, proving that he is free from all disease, and a photograph of himself with his name on the back, which is kept by the resident magistrate as a guarantee against impersonation. The pearler also has to enter into a bond of £100 that the man will be employed the whole time on the fleet, and will be brought back to the resident magistrate directly the term of his contract has expired.
I may say that, as a result of my representation, that system has been extended to the whole , pearl-shelling, industry of . Australia.
Had it not been for the 400 “ free men “ who came into Broome before any restricted legislation was passed, there would not be a single coloured alien in Broome for eight months of the year.
– That is absolutely incorrect, as the parliamentary papers show.
Senator STANIFORTH SMITH.Is a parliamentary paper absolutely omniscient ?
– The parliamentary paper shows the number imported, the number returned, and the number not accounted for.
Senator STANIFORTH SMITH.Senator Pearce has fallen into a very simple error in neglecting to take into account the free men engaged in the industry who were previously working on shore. I further say -
If legislation were passed prohibiting coloured crews from being transhipped at Broome, or remaining in port during the laying-up seasont one or two things would eventuate - either white crews would be employed, or the head-quarters of the industry would be changed to some foreign port near the North of Australia.
Senator Pearce has said that that is impossible, but I shall show that it is not only possible, but ‘has actually been done, and is in operation at the present time.
The working expenses of the fleets would be increased by at least 30 per cent. if white men were employed for the pearling season (eight months), instead of coloured crews all the year round. The average wage paid to a coloured crew, including the diver, is about 18s. a week, while white crews could not be expected to do the work for less than 6s. a day and found, with 10s. a day for the diver, or an average of£2 a week.
– If the cost is only 30 per cent, more, the industry could be carried on by white labour without a bonus, according to the figures given by Senator Pearce.
– But Senator Pearce was wrong in the prices which he quoted for pearl shell, and the arguments which the honorable senator based on those prices are absolutely useless.
– I gave the average price stated by Mr. Warton.
– The price of pearl shell is not like the price of gold. It does not remain the same year after year; and the figures which Senator Pearce quoted were three years old.
– I quoted fluctuations, as the honorable senator would have known if he had been listening.
– The last prices quoted by Senator Pearce 1Vere averages up to 1902 or 1903, and while he based his arguments on those prices, the price obtained for pearl shell .to-day is altogether different.
– Mr. Warton based his argument on the average price, and that is what I quoted.
– I shall tell honorable senators later on what the present price of pearl shell is.
– Thirty per cent, is the difference between the cost of white and black labour?
Senator STANIFORTH SMITH.That is my estimate. I go on to say -
The cost of rations would also be doubled. I believe pearlers could save this increased expenditure, and still make a profit, if the price of shell keeps up to its present extraordinary value, but is it likely to do so? There_ is little doubt they would adopt the alternative course, and lay up their boats at Koepang, where no restrictions would be imposed upon them, and from which they could “issue as soon as the hurricane season is over, and pearl in their old grounds just as formerly. If they adopted this course, the object of the legislation would not have been attained whilst the fleet of 250 Australian vessels, valued at ^110,000, would be transferred to the Dutch flag, together with the profits of the industry. .£25,000 of the State revenue would be lost annually, and certain subsidiary industries would be ruined.
As I stated in my preliminary remarks, the monetary consideration has ‘with me very little weight. The question is whether the shifting of the head-quarters of the indus try would further or injure our White Australia policy. I further say -
But the mischief would not end here. The owners of the fleets would then be under no heavy bond to see that their coloured crews did not escape, and after they had served their term they could land any of their crews that they did not require quietly at night on the mainland] “and the real danger would menace our White Australian policy. A lucrative industry such as this, having its head-quarters in a foreign country, would probably lead foreigners to embark in the enterprise, and continually patrol our shores, with endless disputes as to whether they were working within the three-mile limit.
– Would not the headquarters be too far away
– I shall show later on that head-quarters have actually been established at another place, and a fleet is working successfully from there. I shall be able to prove that Senator Pearce was wrong in saying that it is impossible to establish a base outside of Australia.
– Can the honorable senator show that it is possible to establish a base at Koepang?
– I will be able to show where a base has been established. I may inform Senator Pearce that there is an excellent harbor at Koepang, and it would not be difficult to establish head-quarters there.
– But it is too far away
– I do not think that it is. Senator Pearce has said that it is impossible for boats to work at a considerable distance from the base, but the honorable senator is altogether wrong in that statement. They could work with a base at Singapore. The question is - Where are they to lie up? The boats engaged in the industry off the coast of Western Australia lie up at Broome, and many of them come there once a year. Vessels pearling on the coast of Australia, no matter where their base is, could1 run into any port to secure food and firewood, as thev do at the present time. Vessels could come’ in that way from Singapore, from Timor, or Merauke, and work along our coast. We could not refuse to permit them to come into a port for stores, wood, and water, and other requirements. I further say -
The Western Australian Government would be put to a heavy expenditure in policing outshores and grave difficulties leading to international complications might arise, as in the case of the British and French fishing grounds in Newfoundland. If we consider the best interests of Australia, our policy should be to prevent foreign nations from carrying on industries contiguous to our coast, which might imperil what - for the want of a better name I might designate our Monroe doctrine regarding the islands. The conclusions I have come to as the result of my investigations are that our “White Australia” policy is not endangered by the employment of coloured crews in the pearling fleets, provided the Acts and regulations in existence are firmly and strictly administered ; that any legislation enacted with a view of prohibiting coloured labour would not consummate the effect desired, but would rather tend to create a danger which at present does not exist, while it would deprive Western Australia of a very valuable and lucrative industry, and” perhaps lead to endless quarrels and complications. In the administration of the Act great care should be taken -
That when a coloured alien is discharged, he must be returned by the first steamer.
That they have no proprietary interest directly or indirectly in any of the pearling boats. This is a matter that requires the greatest vigilance, as some, especially the Japanese, are willing to pay a high figure to acquire an illicit interest, and such a transaction is very difficult of detection.
That during the lay-up season, when the men are on shores, their employers do not put them to any work other than in connexion with the boats.
That is the system at the present time. The very danger I foreshadowed in that statement made in December, 1902, and my foreboding of the danger of foreign people establishing a base close to Australia, have come to pass. Senator Pearce has stated that it was found impossible to establish head-quarters at Merauke.
– I quoted Judge Dashwood’s statement to that effect.
– I think that is right, because the settlement at Merauke, in Dutch New Guinea, is at the entrance to the river, and the approach is very difficult. Probably it would not be a good place for the head-quarters of a fleet. But. as a matter of fact, large pearling fleets have left Thursday Island, and have established their head-quarters at the Aru Islands, south of Dutch New Guinea, and are doing well there. They have brought their vessels under the Dutch flag, and they can pearl in the very same waters as they did when working from Thursday Island. That is a statement which I know to be correct. It is a fact that Mr. George Smith, the head of what is known as Clarke’s combine, to whom Senator Pearce has referred, took a large fleet of vessels and established a base at Aru Islands.
– It is somewhat singular that no one else ever heard of this, and that we have had no telegrams about it.
– I do not consider it singular, because ninetynine out of every 100 in the south know nothing of the pearling industry.
– We got a lot of information about the proposal to go to Merauke.
Senator STANIFORTH SMITH.That may be so; but, as a matter of fact, men engaged in the industry have gone a little west of that port, and have actually established head-quarters for their vessels, placed them under the Dutch flag, and now can come down to work in the same waters as they worked in from Thursday Island. They secure many advantages by so doing. The Dutch have made the place a free port, and the pearlers get their supplies without having to pay duty. There is no restriction whatever on the men they engage. There is no restriction as to the wages to be paid, and they have absolutely no responsibility. They can bring their crews to work along our littoral within three miles of the shore ; and at any time they please they can put them ashore without any liability to themselves. The only persons liable are those who are landed in Australia. They can do all this and can carry on the industry as they did before in the waters in which they previously worked from Thursday Island, and they can, if they please, run into Thursday Island itself, or to any other port, and get supplies of stores, wood, and water.
– Where did the honorable senator get this information?
– I can assure Senator Pearce that the information is absolutely true, and that I had it confirmed this morning by the ‘Secretary of the External Affairs Department from official document’s.
– The facts are well known in Sydney.
– Why does not the honorable senator quote the document?
Senator STANIFORTH SMITH.Senator Pearce need not take my word, but I assure him that I was able to confirm the information this morning, and he can himself make inquiries on the subject from the Secretary of the Department of External Affairs. Pearl-shelling in 1902 and 1903 - and Senator Pearce was unable to give later information-
– I gave information for 1904.
Senator STANIFORTH SMITH.The honorable senator quoted from the reports submitted by Mr. Warton and Judge Dashwood. They made their inquiries in 1902 and 1903, in the boom time, when the price of pearl shells went up to £300, and even to £400, per ton. Senator Pearce based his argument on an average value of £105 per ton. If that price could be obtained for pearl shells a profit of about £1 5 per ton might be made, because a good pearl lugger will obtain 4J tons of shell in a year. But is Senator Pearce aware that at the present time the price of pearl shell has fallen as low as £89 per ton? On the honorable senator’s figures there would be absolutely no profit in the industry at that price. As a matter of fact, there is no pearling fleet working in the north of Australia or on the coast of Western Australia at the present time that is making a profit.
– Whose fault is that? Have they not depleted all the beds to satisfy their greed?
Senator STANIFORTH SMITH.At Thursday Island some ©f the beds may have been depleted, but those along the coast of Western Australia have not been depleted.
– The honorable senator admits that the present price is abnormal, because he has said that the price at one time was as high as £300 per ton.
Senator STANIFORTH SMITH.It cannot be said that the present price is abnormal, because it is impossible to fix a standard price for pearl shells.
– Is £105 an average price ?
Senator STANIFORTH SMITH.It was the average price for some years, but the price during the last twelve months has fallen to £89 per ton, and there is no present prospect of an increased price. So that when Senator Pearce based his argument on estimates made three years ago as to the bonus that would be necessary to enable the industry to be carried on by white labour, his basis being wrong, the inferences he drew must fall to the ground. The tendency at the present time is for the whole of the fleets to migrate to the Dutch Possessions. I know personally that another large fleet is at the present time contemplating going to Aru Island. In Dutch waters they have some advantages. If they put their vessels under the Dutch flag they can pearl in Dutch waters, as British vessels cannot do; they can get their provisions without paying duty ; and they are under no restriction as to the labour they employ ; nor do they have to pay the £100 guarantee. At the same time they can, if they please, fish in Australian waters, as they did previously. I say that, if we impose these conditions with regard to white crews, we shall add, according to an estimate which I made, 30 per cent, to the working expenses of the pearling fleets. The result would simply be that we should drive those fleets to foreign places, where they could form their base, and we should have our whole coast-line swarming with foreigners, with their luggers crammed with coloured aliens, whom we certainly do not desire to see in Australia. Many of them would, there is no doubt, land at night, and evade the Immigration Restriction Act. Of course there is a penalty on any alien discovered landing in Australia; but the inference is that in those places they would not be discovered’. A state of things would, I am satisfied, be brought about that would be injurious to the White Australia policy. In our efforts to make this international industry a white industry we may jeopardize the policy which we have inaugurated for the good of Australia. The great trouble in connexion with’ all these pearling fleets’ is that the places they visit - especially Thursday Island- are infested with coloured aliens. If any person wants to make up his mind whether we ought . to maintain the White Australia policy or not, he should go to a place like Thursday Island, and be as unfortunate as I was in having to spend a week there. He would then learn that the great trouble in such ports is not with regard to the indentured men on the pearling boats, but as to the number of free men who can roam about unrestricted. They can, if they choose, come to any part of Australia. In Thursday Island the number of contract men is 795 ; the number of non-contract men is 1,089. The latter are men who are in Australia unconditionally, and have the same rights as British subjects.
– How did they get there ? f
– They were allowed to. go there under the stupid Queensland laws. In Broome there are 2,209 contract and 260 non-contract men. The latter are in Broome unconditionally;. In Port Darwin there are 82 contract men and 158 non-contract men. So that out of a total coloured population of 5,097, 3,086 are contract men, and 2,011 are non-contract men. It is in the case of non-contract men that the trouble has arisen. There is no restriction whatever upon them. They) can remain where they are, or they can come down to Melbourne if they like. It is a peculiar fact that 200 or 300 of the non-contract’ men in Thursday Island are kanakas, who came to Queensland under contract, bound to work only in the cane plantations, and to be sent straight back to their islands when the specified time expired. Senator Pearce quoted the discrepancy between those coloured people who were brought into Australia under contract and those who left. I admit that there is a great discrepancy. But Senator Pearce overlooked the fact which I have already mentioned, that many of these non-contract men have retired from the fleets, whilst many of them have gone away. Therefore the contract men have been coming in more largely than they have been going out. But the difference is made up by the non-contract men who have gone back to India, China, or the Philippine Islands, or, if they liked, to other parts of Australia.
– The Commonwealth returns show all men returned, contract and non-contract alike.
Senator STANIFORTH SMITH.No, they do not. I called for a return for the year 1904. It shows that the labourers who arrived for the fleets numbered 1,532, and those who returned numbered 913. That leaves 619 unaccounted for. I immediately instituted inquiries to ascertain how this discrepancy arose. The noncontract men on the fleets were fewer by 282. The number authorized to be introduced into Western Australia on account of new boats was 196. The number authorized to be introduced into Port Darwin and Thursday Island for the same reason was about 141. Senator Pearce mentioned that the rapid growth of the pearlshelling industry would in itself account for the larger number of coloured people coming in and the smaller number going out. He quoted from Judge Dashwood’s report figures showing the increase in boats and so on. But he himself gave the reason why a larger number should have come in than left Australia. I have said before that the value of this trade from a monetary point of view is not by any means the most important consideration-. The great question is : Are we advancing the White Australia policy, or are we absolutely injuring it? Still, however, the direct revenue received by Western Australia from Customs duties, fines, licences, and so forth amounted in 1902 to £25,000. I got those figures from Mr. Warton himself. The Commonwealth revenue obtained from Broome, which- is absolutely dependent on the pearl-shelling industry, was fairly large.
– A licence is not required in order to gather shell on the high seas.
Senator STANIFORTH SMITH.But the pearlers have to get a licence if their head-quarters are at Broome. The value of the fleet was £ 11 0,000. Senator Pearce said that the revenue in Broome was £2,000, and that the pearlers got their supplies from Singapore. But as a matter of fact they get hardly any supplies from Singapore. They have no direct communication with Singapore. They obtain their supplies from firms in Australia.
– That is a mere assertion.
– It is an absolute fact. I base my statement on official figures. Large quantities of supplies are obtained from Fremantle. MrWarton is my authority for this statement also.
– Why did he not say so in his report?
– His report dealt with 1901. I am referring to 1902. I have mentioned that the value of the fleet in that year was ,£110,000. It should also be remembered that some subsidiary industries are created by the pearlshelling industry. Ninety per cent, of the Broome boats are built at Fremantle. In 1902, Perth and Fremantle built boats for the pearl-shelling industry to the value of £10,500. The pearl shell and pearls were estimated to be worth £180,000. The whole of the owners of the fleets were living in Australia. Their money was spent in Australia. Further, the greater proportion of the wages of the men employed on the fleets is spent in Australia.
– Most of the coloured men save their money and take it away with them.
– I think that the honorable senator is wrong. Certainly the Malays do not save their money. I have seen a Malay receive £roo in wages - I was there when the boats started to lay up - and I have seen that Malay come to his master the next day and ask him for more money. The Malays are tremendous gamblers. They will sit down stoically and gamble away in one night the whole of the money they have earned in a year. It must be remembered that the crews are on board the boats during eight months of the year. During that time they consume provisions which are bought in Australia ; and, of course, the money goes into Australian pockets, whether the provisions are consumed on luggers or on shore. I have said that the question of the monetary advantage arising from the industry is of small consideration in comparison with whether we can make the White Australia policy more effective. Shall we, if we Carry Senator Pearce’s motion, make the White Australia policy more effective or not? That is the whole question. I am not opposed to the proposal of Senator Pearce to offer a bonus. I should offer a bonus to white crews to enable them to carry on the work, and ascertain what amount would be necessary.
– In the extracts there is nothing about the danger and loss of life. Is there much loss of life?
– If the divers go into deep water - 15 or 18 fathoms - they are apt to get paralysis from the bursting of a blood vessel in the head ; but if they are working in 10 or 12 fathoms there is no danger. All this talk about depleting the deep waters is bunkum, because it is not known how far the pearlshell extends. Neither of the two gentlemen who have been quoted has had practical experience in regard to pearl-shelling.
– But they have based their report on the evidence.
– I got my information from pearl-shellers who had) “been working there ‘for fifteen or twenty years. How would it be possible to prevent the depletion of pearl-shell in deep water outside the three-mile limit?
– Why were regulations enforced regarding the size of the shell ?
– That is a different matter.
– It was done for the purpose of preventing depletion.
– It is impossible to deplete the deep water, because i.t is not possible to get pearl-shell when it is more than 18 or 19 fathoms deep.
– Does the honorable senator think that white men will do the work for 6 s. a day ?
– If they are paid a proper wage, undoubtedly they will do the work. I mentioned a rate of 6s. a day and keep for the men, and of 10s. a day and keep for the divers ; but I merely made the suggestion in order to base an argument thereon.
– Is the honorable senator bearing in mind that 4,000 or 5,000 white men will be wanted to take the place of kanakas?
Senator STANIFORTH SMITH.Yes. There are any number of white men to do the work if the price can be paid. This is not an industry which is controlled by Australia. Pearl-shell is lying at the bottom of the high seas, and the question is whether the industry is to be worked from Australia or from a foreign part. At the present time it is worked from Australia under most stringent conditions, in order to insure that no alien pearlers shall enter the Commonwealth. If a single man of that type comes in, the owner of the lugger is liable to a fine of £100. A man comes from a foreign part with a photograph of himself, and an impression of his hand is taken, so that there can be no doubt as to his identity. If he is not brought up at the end of his agreement the bond is forfeited. If we allow the industry to be carried on from outside Australia, these very men will work in the very same positions as they previously did, but their employers will be under no personal obligation to keep them from landing on our shores. It costs an employer nearly £5 to send a man back to Manila and places like Japan. He can say to his pearlers when the term is up, “Would you like to enter Australia at your own risk?” and if they say “ yes,” then along that coastline of 1,000 miles he can run in and put them ashore. If the industry be carried on by foreigners operating from outside Australia there, will be the greatest possible danger of a coloured alien invasion. I made a rough calculation in regard to the bonus which would probably be required. If my calculation be right, it will cost 30 per cent, more to work the industry if white be substituted for coloured labour. There are about 600 luggers working at the present time. Each lugger employs six men, namely, the diver, the tender, the man who holds the life-line, the two men who work at the pump, and the man who looks after the vessel. Roughly speaking, the pearling fleets employ about 4,000 men. As the average wage is 18s., that means a wage fund of ^167^000 a year. If we added 30 per cent, to that sum, it would mean a bonus of ^50,000 a year. That is only a rough calculation, but I believe that the owners of the fleets could carry on their industry as successfully as they do now if we gave them a bonus of -^50,000 a year. Senator Pearce’s calculation was based upon the statement in Mr. Warton’s report that the annual cost of working a lugger was £520. but that is a ‘mistake, I think. However, if it be true, it would mean that the bonus would need to be largely increased. The honorable senator read some appalling statements in regard to the vice which is brought about by the association of the aborigines with coloured aliens. That is one of the worst blots on the pearl-shelling industry, and one which should give us the greatest possible concern. If the whole of the pearl-shell could be swept away from Australian waters, I believe that ultimately it would be to our best interest, but it is there. If coloured aliens are going to work in exactly the same waters as they do now along that great coast-line, they can always go ashore. The aborigines will flock down to get tobacco and spirits, and the same evil practices will continue, whether the industry be worked from Australia or from a foreign part. There will not be the slightest difference in that respect. If I had looked at the matter from a personal stand-point, I should not have opposed the motion. When the average man is asked, “ Do you want coloured men working in the pearling industry “ ? the answer is “ No.” From the purely personal stand-point, it would have been much to my advantage if I had said that I cordially agree with the motion. I have been in touch with this industry, and perhaps I understand its working better than any one else here. While, with the best intentions, Senator Pearce desires to bring about an alteration, I feel certain that the loss of our control would bring about a condition of affairs infinitely worse than that which now obtains. The owners of the boats would be under no responsibility to see that the coloured men did not escape to the mainland!. There would be no liability to a fine of £100 if a coloured man was not accounted for at the end of his term. The industry could be carried on in exactly the same waters, and the pearlers allowed to come into Australia just as they pleased, without the owner of the boat incurring any responsibility or liability.
– Would the honorable senator mind quoting Mr. Saville Kent’s report as to the probable depletion of the beds, as he said just now that they could not be depleted?
– The beds round Thursday Island have been depleted, and the ‘men are not allowed to 0 pearl within a certain distance of the island. They have to go to the Warrior Reefs and to the north-west of the island in order to pearl, and that is in the direction of Dutch waters. From Aru Island they can go down and pearl in Dutch waters; I ask the Senate to consider this question : Is it better that this industry - which will be carried on by coloured labour whatever restrictions we make - should be carried on under the strictest supervision than that it should be worked from a foreign base, and carried on without any restrictions;, and thus be a source of serious danger to cur White Australia policy ?
Debate (on motion by Senator Millen) adjourned.
– I move- -
That the Bill be now read a second time.
The Federal Judicature is of deep interest and concern to all of us, but there is a. mistaken impression that it means the High Court. That is not so. The High Courtis a part, and a most important part, of the Federal Judicature - it is the apex “of the structure, but it is not the structure itself. The .States Courts, being vested with Federal jurisdiction, are to that extent a part of the Federal Judicature equally with the High Court. Unhappily, the character of the States Courts in this respect has very frequently been forgotten or overlooked. Toinvest _ the States Courts with Federal jurisdiction would have been an empty form, -unless it was intended to be exercised, and the Courts were encouraged in its exercise. Therefore, the States Courts of Australia have a double claim to consideration and regard, first as Courts exercising a very high and important jurisdic- tion of their own; and, secondly, as, in fact, Federal Courts, inasmuch as they are vested with Federal jurisdiction. I shall not say it is notorious, but, at any rate, it is, I think, a subject of remark that the States Courts, vested with’ Federal jurisdiction, have not had those opportunities for acquiring that additional prestige which it was anticipated by the framers of the Constitution would attach to them. These opportunities, somehow or other, do not * come to them. On the other hand there seems to be rather a tendency, or, at any rate, a result tending to discount the States Courts, and to stamp them, to some extent, as regards Federal jurisdiction, with inferiority. That certainly was not contemplated by the framers of the Constitution. On the contrary, it was intended to maintain, and, I might say, to exalt the status of the Supreme Courts of the States, and to enlarge the distinguished usefulness which previously belonged to them.
– Which should be the superior Court in Australia?
– The High Court of Australia.
– Then the other Courts must be inferior.
– Certainly, as being subject to appeal, but not inferior to what they were before. The High Court of Australia is the appellate Court, and if Senator Givens will bear with me a few minutes, I shall show exactly the position which I wish to make clear to the Senate. For the reasons I have indicated, it is well we should review the situation, especially in the Senate, which is repository, and charged with the guardianship of States interests. We can inflict no more serious, perhaps fatal, wound .upon the States than by consciously or unconsciously countenancing anything tending to depreciate the States Courts- to depreciate the justice administered by those Courts - or to weaken the confidence which has hitherto been reposed in them. In the next place, our Judiciary Act, passed in 1903, was legislation establishing an entirely new system, and, in regard to such legislation, whether dealing with the Judicature or any other matter, opportunities of revision are to be welcomed. _ We all remember the Judicature Act, which was passed in England some thirty years ago, and which entirely changed the judiciary system, particularly as to procedure, of the mother country. A very distinguished con stitutional writer, Sir Frederick Pollock, is worth quoting in this connexion, and when we read his words we feel that, without any disparagement to the work which we did in 1903, we may fairly, and I think beneficially to the Commonwealth, revise the law then adopted, with a view to its being made more perfect. Sir Frederick Pollock said -
Twenty years ago the authors of our Judicature Acts in England, men of the highest eminence, but trained exclusively in the Chancery system, went about to engraft considerable parts of that system on the practice of the Courts of Common Law. What came of their good intentions? Instead of the simplicity and substantial equity which they looked for, the new birth of justice was found to be perplexed practice, vexatious interlocutory proceedings, and multiplication of appeals -
A good deal of what I have read applies, I think, very forcibly to the present situation in regard to our judiciary system, even with the experience of the two years which have passed since the Act was brought into force. Moreover, I am convinced that as to organization to some extent, and as to method and procedure, the spirit and intention of the Constitution have been departed from, and, I think, unwisely. Believing that as I do, it is my duty to lay my views before the Senate and the country, and to suggest a remedy. If there is no remedy, or there is a remedy and it has not been applied, then I think that before long we shall have great reason to regret the fact, and we shall have a Judicature which, in relation to its numbers and its cost, we shall be unable to contemplate with any equanimity. Weshall find that the work cannot be done, if it be on the footing which, as I think, inconsistently with the Constitution, has already been’ adopted, and I hope to carry honorable senators with me when I explain the basis of mv views in that respect. Finally, in desiring to explain my views, I am’ most anxious that my own attitude and aims shall be clearly understood. I hope to submit to honorable senators what I know and believe the Constitution demands. This is not a question of majority or minority, but a question of whether we are in the first place to abide by the Constitution, and whether it is right that the true view of the Constitution shall or shall not be accepted. I move the second reading of this Bill with great satisfaction. It is a Bill which I promised to introduce when in office, and which was prepared before Parliament met; and my only regret on retiring from office a few months ago was that I should not be able to introduce it with that aid to its early success which, as honorable senators know, office gives. When Senator Keating asked me what I took leave to regard as a sympathetic question on the first day Parliament met, I felt a sense of disappointment that I was unable to give him the assurance that I should introduce a Bill, having for one of its purposes the making of the High Court as an appellate tribunal, a stationary, and not a perambulating, Court. I wish to say, also by way of preliminary, that, although I quite recognise that the time for private business is extremely fragmentary, and that I can only share it with my fellowmembers in this Chamber, I shall endeavour as far as I can to press this Bill through. I desire as soon as possible to have on the statute-book a definite expression of the intention and desire of Parliament in regard to the question which this Bill raises. If time and fortune are against me this session, I pledge myself to take the Bill up again, and again, and again. I shall never rest until the Federal Judiciary, in all its branches and divisions, is placed on the great and high plane designed for it by the Constitution, and1 by those who framed the Constitution, freed from all temptations to go outside that magnificent area. Honorable senators are aware that when I was in office matters affecting the Judiciary forced themselves on my attention and the attention of the Government, and attracted some public notice. These matters received our anxious consideration from a twofold point of view. One was in respect of what I thought, and think still, to have been the immoderate and reducible expenditure - a subject which was alluded to more or less directly before the prorogation of Parliament last year. That is not the subject with which we are now concerned. I wish honorable senators to understand that that matter is not affected, except indirectly, by the Bill. When the Estimates are before us we shall have an opportunity to deal with that subject, and I hope I shall be able to lay before honorable senators a good deal of information which may assist them. The second’ branch, embraced in the subject of this Bill, is on an entirely different plane, involving a grave constitutional aspect, affecting the Commonwealth, the States, and the general administration of justice. That this is no party question I need not say. I am propounding my views entirely as an individual senator. Honorable senators who usually sit with me may possibly disagree with me on some points, but the motive I have is simply that of a senator who desires to abide by the Constitution, and is, of course, solicitous that he should have the support of those whom he may succeed in convincing that the views which he ventures to submit are right. The principles and purpose of the Bill I may summarize in this way : The States Courts first of all are invested with Federal jurisdiction. Secondly, invested with Federal jurisdiction, they should exercise the original Federal jurisdiction of the Commonwealth, with rare, if any, exceptions. Thirdly, the High Court is essentially, and was intended to be, a Court of Appeal. It was intended to be stationary ; not itinerant or to go ora circuit. It was intended to exercise its appellate jurisdiction at the seat of the Court. Fourthly, the power of appellate interference with the States Courts is too wide, is not on the footing upon which it should rest, the provisions contained in the existing Judiciary Act, with regard to special leave, are inappropriate and undesirable, and appeals should not be entertained from single’ ‘ State Judges, to the disparagement of the State Appeal Courts. And fifthly, the Parliament and the Executive are responsible, and ought to be responsible, for providing for the full administration of justice throughout the States, for establishing circuits directly, if there be any, and for making provision for the exercise of the original jurisdiction, if necessary, by circuits for that purpose, if that is to be done by Judges of the High Court. Honorable senators will follow me if I first of .all ask them to bear in mind that the judicial power of the Commonwealth means the whole ambit of Commonwealth jurisdiction, and that section 71 of the Constitution provides -
The judicial powers of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction.
The first thing that strikes one is that the Federal power is not vested solely in the High Court, but in all the Courts which are established by the Commonwealth Parliament or empowered to exercise Federal jurisdiction. A State Court exercising Federal jurisdiction is in every respect as much vested with the judicial power of the Commonwealth within the limits of its jurisdiction as is the High Court itself, the summit of the system. The section investing the State Courts with Federal jurisdiction is an entire departure from anything known in the establishment of any other Federal system. It is new, and it is therefore important to know what was intended by it. We desire that this Constitution, as a noble instrument of government, shall be effectively carried out. We desire that not merely the letter, but the spirit of the instrument shall be given effect. It is our ambition, as well as our duty, to see that we follow in every, way the letter and spirit of the Constitution, and unless in some extraordinary or unavoidable emergency, do not depart from it. It is, therefore, necessary to have regard, not merely to the language - which is plain in that respect - but to the intention and spirit of the framers of the Constitution. It is very useful to look at the genesis of a provision. If we do so in this case we shall ascertain that these words were put into the Constitution - departing in this respect from every other - in order, in the first place, to elevate the States Courts, to exalt them, if honorable senators please, to a higher judicial position than they possessed before making them part of the great Commonwealth judicial system j in the second place, to prevent the necessity of a travelling High Court, certainly as an appellate Court, but also as a Court, exercising - unless in exceptional and rare cases - original jurisdiction ; and, thirdly, it was put in to provide greater facilities for the exercise of the original jurisdiction within the judicial power of the Commonwealth by bringing it to every man’s- door through the instrumentality of the States Courts exercising Federal jurisdiction. That was the intention. The Convention sat in its first session in 1897 at Adelaide. This particular portion of the Constitution came before what was known- as the Judiciary Committee of that Convention. I am glad to know that in this Senate we have in my honorable friends, Senators Dobson and Walker, two honorable senators who were, with myself, members of that Judiciary Committee. Mr. Walter James was also a member of it. The judicial power, as I have said, means all that is embraced in the national administration of justice. It is another way of describing the judicial scope of our powers, just as there are other sections of the Constitution which describe the legislative scope. What we had to do 1 was to determine how, by whom, and where that judicial power should be exercised. We had before us the example of the United States of America. We had before us the Acf of Congress passed in 1789 under the American Constitution, and which is similar to our Judiciary Act, to provide for the exercise of the judicial power of that great Commonwealth. We found, as is undoubted, that the system established by that Act of Congress of 1789 was complex, costly, and involved a network of new Courts. Congress under the American Constitution can only create new Courts. It cannot vest any portion of the judicial power of the United States, except in Courts ordained and established by itself. There was no power in the American Constitution to’ utilize States Courts. The States Courts of America never were, and are not now, part of the judicial system of that country. Honorable senators are aware that the organization in the United States began with a Supreme Court, comprising a Chief Justice and five Justices, with some thirteen districts, each with its Judges - a district being usually synonomous with a State - and with circuit Courts which embraced one or more districts. Even! then under that system the Supreme Court of Appeal in the United States never travelled.
– There were too many States. ‘
– There were only thirteen at that stage. Its Judges, after the appellate sessions were over, travelled in the exercise of original jurisdiction, because they exercised the functions in the earlier stages of circuit Judges. Individual Justices did travel in the exercise of original jurisdiction, but the supreme appellate tribunal never left, in the first instance, Philadelphia, and subsequently Washington. We know that Marshall, afterwards the great Chief Justice of the United States, travelled from where he resided to Philadelphia in order to argue cases in which he was engaged as counsel. We found that state of things. We were impressed in the first place in order, if honorable senators please, to recommend Federation to the States, and to remove one possible source of apprehension, with the desirability of magnifying the jurisdiction of the States Courts, utilizing them, and making them parts of the Federal system. We were impressed with it from the point of view of the States Courts themselves, and also from the point of view of economy, in- order to save the cost involved in introducing the system that existed in the United States of districts and circuits, and so on, with a large number of Judges. We determined to utilize the States Courts as a means of avoiding that difficulty.. We were unanimous upon that point. We were unanimous that by so doing we should maintain the dignity of the States Courts, and magnify them as vested with Federal jurisdiction. We were unanimous that it would contribute to economy, and would recommend the proposed Federation to the people of Australia, perhaps, more readily. Has that been realized? If not, why has it not? Why was this provision inserted in the Constitution? Why were States Courts made part of the Federal Judiciary if they are to be ignored ? We said, and the Constitution says, that we should allow the States Courts to hear everything, subject, of course, to appeal. We said, “ Let them undertake all the original jurisdiction possible, with rare exceptions.”
– What are those rare exceptions ?
– I shall tell the honorable senator later on. We allowed them to undertake all original jurisdiction, subject to rare exceptions ; and, of course, the Constitution itself contains no provision with regard to making any part of the original jurisdiction vested in the High Court itself exclusive. That was to be left to Parliament. These provisions were carefully discussed. They were, as I have said, a new departure. But before we adopted the recommendation, Sir Samuel Griffith, then Chief Justice of Queensland, was consulted on the subject by my honorable friend Senator Walker, in conjunction with Mr. Walter James, now Agent-General for Western Australia in London. They sent a telegram to Sir Samuel, which, I think, states the position as well as it can be stated. The telegram was this - .
In connexion with the judicial power, it has been suggested in Committee that as there is a Federal Court of Appeal exercising control over all States Courts, the analogy to America is not exact, and that the States Courts should exercise original jurisdiction over Federal matters, reserving to the Federal Parliament power to appoint Federal Courts more by way of reserve, if any State should close its Courts, or obstruct the determination of Federal matters; the object being to avoid the needless creation of Federal Courts in all the States, and the consequent degradation of the States Courts, and avoid the difficulties of litigation which exists in America. Kindly wire your views for Committee’s respectful consideration.
Honorable senators will observe that the view which we desired to give effect to, mnc which we eventually did give effect to, was in respect of the vesting of States Courts with Federal jurisdiction. It was put that the object was to avoid the multiplication of Federal Courts in the States, and the “consequent degradation” of States Courts. Sir Samuel Griffith concurred in that. His reply to Senator Walker was -
Disposed to think it necessary to give Federal original jurisdiction in cases against officers of federation and between States. In other cases, see no objection to suggestion, Parliament having power to legislate if necessary. Suggest insertion in section g of “ in such place.”
I will call attention to the significance of those words in a moment. Of course, honorable senators ‘Will understand that I do not suggest that the view of even so eminent a man in regard to a constitutional matter is final, or even authoritative. But this approbation was communicated to the Judiciary Committee. It was comforting. And, of course, it gave a solid assurance to my honorable friend, Senator Walker, who naturally was not very familiar with these matters, and who was desirous of being fortified before giving his individual consent to so important a departure as that to which I have directed attention. The States Courts were to exercise original jurisdiction on Federal matters. The degradation of the States Courts was- to be avoided. Economy was to be subserved. Consequently, the clause was framed as we mow find it. The object of the Committee was clear. ‘ The meaning of the language used, I think honorable senators will agree, was also perfectly clear. A print of the Constitution as it emerged from the Adelaide session in 1897 was made and was circulated. It will be recollected that an interval took place between that session and the session held in Sydney. During that interval the matter was the subject of public criticism, as was intended. The Convention was desirous that every opportunity for discussion should take place, and that all matters that required review should be reconsidered and rectified. The Bill was the subject of criticism more or less friendly from Sir Samuel Griffith in a pamphlet which’ was published during the course of that year. But one clause of the Constitution was the subject of his unqualified eulogy, and that was the provision to which I have called the attention of the Senate. I think they will agree with me that there could be no douLt of its intention, or of what the Judiciary Committee desired. Referring to that provision, Sir Samuel writes in this pamphlet, at page 12 -
An important and valuable alteration in?” substance is contained in section 76 - which is at present section 71 - which provides that the Parliament may invest States Courts with Federal jurisdiction. This will obviate the immediate necessity of establishing Federal Circuit Courts.
Of course, no one could doubt that that was a just and true exposition of the intention of the provision. Why, then, have we these Federal circuits and by the High Court? I have shown that the Judiciary Committee made this departure and inserted this ‘clause for the very purpose mentioned in the quotation which I have read. I have shown that the language of the clause itself was susceptible of no other meaning than that which Sir Samuel Griffith gave to it. * And I have shown, upon his eminent authority, that it was one of the most beneficial departures in the framing of the Federal Constitution. But more than that. I direct the attention of honorable senators to the suggestion that there should be inserted in clause 78 of the draft Bill a provision that the judicial power of the High Court should be exercised “by such number of Judges as the Parliament prescribes.” That was the clause as it originally stood. But Sir Samuel Griffith suggested the amendment that after the word “ Judges “ the words “ and in such places “ should be inserted. What was the object of that ? It was plain that, as the earlier clause stood, investing States Courts with Federal jurisdiction, the intention was that the original jurisdiction should ‘be exercised by those Courts, and not bv the High Court Judges on circuit. It was plain, also, of course, that that meant that the appellate Court should not travel, because, if there were to be no circuits for original jurisdiction, it was quite obvious that there could be no circuits contemplated. It was suggested that the words “ and at such places “ should be inserted in the Constitution, lest the Parliament should otherwise be unable to prescribe that the Judges should sit, for example, in exclusive original jurisdiction at other places than the Seat of Government. And so in the same pamphlet, it is said -
Unless ‘ it is intended that the High Court should sit in the capital only, some provision should be made for the exercise of jurisdiction by the Federal Judges in other places. A proposal to this effect made in the Convention was apparently misunderstood.
In accordance with my duty as chairman of the Judiciary Committee, it was I who moved iri the Convention - not that I thought it was desirable, or in any way necessary, but in deference to the view which Sir Samuel Griffith had expressed - that these words should be inserted. I expressly said that I did so in courtesy to his suggestion. But the Convention did not insert them in the Constitution, and therefore the inference would be that in Sir Samuel Griffith’s opinion, quite apart from the provision to which I have called the attention of honorable senators in section 71, it was not contemplated in the Convention that even the Parliament should give power for sittings of the High Court to ‘be held at other places than the Seat of Government. I do not say whether that is so or not. but that is the result. At any rate, am I not justified in saying, in the first place, that the Constitution contemplated no circuits? Am I not justified in saying that the States Courts were intended to exercise all the original Federal jurisdiction, perhaps with one or two rare exceptions, as is the case in America - exceptions, by the by, which are more academical than practical - and that the States Courts were placed under our Constitution in exactly the same position as the Circuit Courts and the District Courts in the United States, these Courts being part of the Federal judicial system ? What does it mean ? It means that district registries are altogether unnecessary. It means that, if these States Courts are Federal Courts, as they are in reality and in substance - they have their own personnel and their own staffs - there will be no travelling in the exercise of the original jurisdiction, and certainly no travelling in the exercise of the appellate jurisdiction. If, of course, there was a duty or an obligation to travel, expense would be a subordinate matter. But if the Constitution contemplated the exercise of this jurisdiction by another set of Federal Courts, why are they to be ignored and expenses incurred which, from that point of view, would be altogether unpardonable? For example, in the United States a case involving a constitutional question, if it goes before a State Court, may be removed into a District Court or a Circuit Court, or the Supreme Court - under machinery of a very elaborate character. But there is no need for anything of that sort here. Why ? Because our States Courts are Federal Courts. That is what I am afraid is usually overlooked. The difference between the judiciary system of the Commonwealth and that of the United States is that our States Courts, for the reasons I have mentioned, are Federal Courts, and are clothed with Federal jurisdiction, which they are not merely entitled to exercise, but which they should exercise. We ought to take care that they have as full an opportunity* of exercising it as the Circuit Courts and the District Courts in the United States. It is quite obvious that if nothing is done we shall soon drift into an extraordinary position. I warn honorable senators of what this will mean. I ask them to recollect the example of the United States of America, with their complicated judicial system - their net-work of Courts - at the time of their establishment. In 1840 they had nine Supreme Court Judges, as they have now. They had twenty-nine or thirty District Court Judges ; later they also appointed Circuit Judges; and since then they have been compelled by pressure of work to establish nine of what are called appellate circuits, differing from the other circuits which previously existed. It is impossible that any three men, however eminent, able, and energetic, can undertake and carry out the system which is now being gradually entered upon in this Commonwealth. If we are going to ignore the provision in the Constitution which makes the States Courts Federal Courts, and invest them with Federal jurisdiction _; if we are going to degrade them, instead of exalting them ; if we are going to take away that jurisdiction, which they have, by simply ignoring them, then we shall be called upon, before many months are over, to add largely to the personnel of the High Court, and to face an expenditure which, I think, we may regard later on as appalling. We have no right to expect three men to do all the work - original, appellate, and everything else - and, in addition, to multiply the number of appeals in the unlooked for way it is being done ; it is impossible. They cannot do it, the Constitution does not require them to do it, and in my humble opinion it is violated in the doing of it. There is not the slightest reason in the world why every single case of Federal jurisdiction, involving constitutional or other points, should not go before the Supreme Courts of the States for determination. It is there that they ought to be determined. The Judiciary Bill was introduced, and the Parliament was asked to give effect to that provision in the Constitution. When moving its second reading, in 1902, Mr. Deakin was good enough to mention that he had submitted the original print to me, and to thank me for some suggestions I had made. I did make suggestions, and in order that honorable senators may see that I have never diverged from the view which I took, which the Judiciary Committee took, and which the Constitution carried into effect by its language, I shall read one or two of them. Of course, a Bill of that character - even more so than a Copyright Bill - is not one which the general run of honorable senators, quite naturally, would be interested in, or, perhaps, if they will forgive me for saying so, care to minutely follow. On a Bill of that description, just as on a much less vital Bill, although a technical one - the Copyright Bill - where honorable senators are in doubt, there is one very excellent axiom, and that is to follow the Government. Owing to confusion of language in the Judiciary Bill - which is not as perfect in draftsmanship as it might be - the loopholes were left through which the existing state of things has been brought about.
– But did this escape the honorable and learned senator’s attention at the time?
– No. My first suggestion to the then AttorneyGeneral was made in these terms -
The provisions for expenses should, i think, be struck out. Such allowance is undesirable, unless for circuit purposes, and it should be provided for in the clauses, if any -
There were no such clauses - dealing with circuits. Clause11 -
That is the clause to which reference, has been made, and which says that the High Court may sit at such times and places as may be required.
Clause ii, like many other Glauses, proceeds upon a misconception of what the High Court is. It is not meant to be migratory or peripatetic, although the individual Judges may be under circuit arrangements. The High Court must have a permanent seat just as the High Court of Justice in England or the Supreme Court of the United States has.
– And this suggestion was forwarded to Mr. Deakin?
– Yes, in 1 901, with another suggestion which, although it has not a direct bearing on this point, is interesting from another aspect. I also forwarded a clause, which I framed under the appellate provisions, to this effect : -
The Governor-General may refer to the High Court in its appellate jurisdiction for hearing and determination -
Any question as to the constitutional validity of any enactment or proposed enactment of the Parliament, but a reference of such question shall only take place upon a joint address of the Senate and House of Representatives desiring the same, and the judgment of the High Court thereon shall be final and conclusive and binding upon every citizen of the Commonwealth, and the validity or otherwise of such enactment or proposed enactment shall not afterwards be, or be liable to be, called in question except by the Parliament for the purposes of repeal, amendment, or otherwise.
Any other matter which he may think fit to refer, and thereupon the Court shall hear the same and certify its opinion thereon to the GovernorGeneral.
The procedure, including the mode in which the question shall be argued upon any such reference, shall be as prescribed, and until prescribed, as the High Court or any Judge shall order and direct in each case.
The provision to which I refer as clause 11, which seemed to me susceptible of being construed to be inconsistent with the intention of the Constitution that the High Court, as an appellate Court, should not be migratory but stationary, that there should be no circuits, unless those of an individual Justice, in any original jurisdiction, is the one which has been relied upon to show that there is a possibility of the Parliament having contemplated the High Court travelling about as a Full Court, because it uses the words “ the High Court shall sit.” Undoubtedly, the clause contains an ambiguity, but when we refer to subsequent sections of the JudiciaryAct the ambiguity is removed, and it is as plain as possible that the term, as used there, does not necessarily mean the Full Court of Appeal. It is satisfied by anysingle Justice. A single Justice in the original jurisdiction constitutes the High Court just as completely as the three Justices in appellate jurisdiction constitute the Full Court. But, passing that by for a moment, there is no doubt as to what I thought on the subject. The position I take up is in accordance with what the Judiciary Committee determined, what the Convention adopted, and what I have always held. I think I may say that the present Prime Minister, who was then Attorney-General, did not differ from me, so far as regards the travelling of the High Court as a Court of Appeal. In March, 1902, I had the pleasure of listening to him when he moved the second reading of the Judiciary Bill, and I then felt assured that he was of the same opinion as myself, namely, that the only travelling contemplated was the travelling of a single Judge in any original jurisdiction it might be desired that the Judge should exercise. Of course, Mr. Deakin is gifted with what we all greatly admire and envy - an overflowing eloquence. But, making all due allowance for the wealth of language with which my honorable and learned friend expressed himself, I think he was reasonably clear, and that what was in his mind was simply that if there had to be any travelling it was travelling in original jurisdiction, and not the travelling of the full appellate Court, with all its associates, tipstaffs, and so forth.
– Then the travelling was deliberately resolved onby Parliament?
– Parliament did not resolve on the travelling at all.
– Then where is the occasion for the proposed alteration in the Act?
– The language of the Act remains as it was adopted then. The speech of Mr. Deakin was published in pamphlet form, and on page 11 there is the following: -
Therefore, so far from having failed to utilize the State courts, we are utilizing them to the full extent of out power. … In the first session of this Parliament we have passed measures conferring upon them practically all the authority which the Constitution enables us to grant. We have reason to be proud of the learning, the capacity, and the integrity which have been exhibited by the Judges of the various State benches. The community relies upon them. We are proud that upon comparatively few occasions have their deliberate judgments been reversed or varied by the court of final appeal.
I think we shall all agree with that eulogium of the States Courts. At page 23, dealing with the matter of travelling on circuit, Mr. Deakin is thus reported -
When I speak of a High Court I mean a High Court for the people of Australia. I do not mean a High Court that is to sit at the Federal Capital alone, or at a State capital, never to be seen outside it, and only known by the people of the Slates by report and hearsay. I mean a court whose Judges will undertake circuits, and be able to visit every State in the union. If we have a Federal court at all, it must be a court sitting at State capitals, and, if possible, in other parts of the States, in order that the whole continent may be brought within touch. That is what the United States did. The six first Judges of their Supreme Court undertook the circuit themselves.
That was, individual, circuits in the exercise of original jurisdiction -
They have long ago abandoned that practice, because of the growth of business, but at the establishment of the union they not only commenced with six Judges, but they did what we propose to do with only live Judges, asked them to undertake circuits in Ihe several States, so that the High Court shall be a reality to every State in the union, and not merely a name.
Mr. Deakin, discussing the question particularly in connexion with the number of Judges, said -
It would be very difficult to undertake any circuits at all with three Judges, except, perhaps, in Victoria and New South Wales.
– Is that not a recognition of the principle of going on circuit?
– Yes, by individual Judges.
Although five Judges are to be appointed, any one Judge may try cases, and with a Bench of live there will be four Judges to whom an appeal can be made from the decision of a single Judge. Honorable members will now see that five Judges is the lowest possible number that will permit of their going on circuit in the different States, and will furnish a sufficient number to ‘act as a Court of Appeal from the State Courts, and from the judgments given by a single High Court Judge.
– Mr. Deakin apparently contemplated the Court being peripatetic.
– Not the Full Court of Appeal. In the passage I have quoted, Mr. Deakin was alluding to the cir cuits of individual Judges, and pointing out that if there were no more than three Judges, which number constitutes a quorum, it would be impossible to have circuits - that circuits would only be possible in Victoria and New South Wales, where the Judges could easily be reached in order to constitute a quorum of the Full Court. The report of Mr. Deakin’ s speech went on -
Mr. Cameron. Supposing that a case involving a constitutional point were to arise in Tasmania, would that be tried in the first instance by one Judge of the High Court?
Mr. DEAKIN. It could be. Cases involving constitutional questions may arise in any court.. It is conceivable that a case, involving a constitutional point, might originate in a police court in Tasmania. It would probably come before a Judge of the High Court on circuit in Tasmania, and there would be an appeal from him to the High Court, and then to the Privy Council, if it were thought necessary. Not only are five Judges required to enable the States to be visited -
That is, visited by single Judges, still leaving a quorum - but to allow of a proper quorum being fixed in every case. We propose to fix the quorum of Judges for the trial of appeals from the State Courts at four.
The argument that was used to induce Parliament to agree to a larger number of Judges was that, with a quorum of three to constitute an appellate Court, there would not be left any Judge, except” in Victoria and New South Wales, to take individual circuits in original jurisdiction. In June, 1903, Mr. Deakin is reported in Hansard as using very similar language. The report is as follows : -
Sir John Quick. Will not the circuit courts involve great expense? They will be part of the paraphernalia.
Mr. Deakin went on to make some remarks about the word “ paraphernalia,” and the report proceeds -
Sir John Quick. For sending Judges all over the Continent to exercise primary jurisdiction.
Mr. DEAKIN. That depends on the number of Justices. If honorable members desire to cut down the number, the original jurisdiction of the High Court will be available only to a limited extent, because three Judges cannot go on circuit as often as five.
In the course of debate, where there are interjections, the language is not, perhaps, so clear as it ‘might be, but there can be no doubt . that what Mr. Deakin conveyed at that moment was the inconvenience which would result if there were only three Judges instead of five, because the circuit arrangements in original jurisdiction would be greatly interfered with. Mr. Deakin went on -
The circuits and their extent will be determined by the number of Judges and not by the jurisdiction of the Court.
That is, original jurisdiction.
By conferring this original jurisdiction upon the High Court honorable members will not necessarily increase the expense, but they will increase the opportunities enabling litigants to avail themselves of the Courts.
That is, in the Court’s original jurisdiction.
Very few opportunities will, however, be afforded in the more distant States for the exercise of the original jurisdiction of the High Court if the number of Judges is reduced.
Mr. McCay. That is to say, if we appoint fewer Judges than is proposed the original jurisdiction conferred on the Court will be practically a dead letter.
Mr. DEAKIN. No. I do not mean that; but the original jurisdiction can only be exercised to a limited degree, because the Judges cannot visit the various States with the same frequency as if the Bench were stronger, and, therefore, fewer opportunities will be presented to local litigants.
The report proceeds, on the following page-
At certain dates there will be regular visitations by a Justice of the High Court. If occasion requires, there may be visitations at other times, but there will be certain fixed dates upon which a Justice of the High Court will visit different States.
That, of course, contemplates ordinary periodical circuits -which have never been established at all -
If you wish to commence an action involving a constitutional question, which is pre-eminently a Federal question, you must do so in a State Court.
– Is there not some discrepancy there? Senator Symon’s main argument is that we have ignored the power in the Constitution to give Federal jurisdiction to the States Courts, whereas Mr. Deakin is reported as saying that we have made most ample use of the States Courts.
– We have made no use of the States Courts. My object, first of all, is to lay before the Senate a narrative of the processes by which this part of the Constitution has been evolved, what it means, and what Parliament has done under it.
– Then Mr. Deakin’s Statement, that we have made the fullest use of the States Courts, is contrary to facts ?
– I think we are making no use of the States Courts, although Parliament intended that the fullest use should be made of them. Mr. Deakin, at that time, was dealing with the Bill, and speaking of what was intended.
– In the Judiciary Bill, as originally drafted, was full Federal jurisdiction conferred on the States Courts ?
– And the provision was struck out ?
– No. It is rather departing from the line I intended to pursue, but perhaps it may be convenient to inform honorable senators that when the Bill was first submitted, original jurisdiction was conferred on the High Court in some matters, in addition to those referred to in the Constitution. The debate from which I have last quoted had reference to an amendment moved to reduce that original jurisdiction. That amendment was made, and the original jurisdiction was thus very largely cut down by the House of Representatives on the ground that such jurisdiction ought to be exercised by the States Courts. But in the section there were left the sweeping and all-embracing words, “ all matters arising under the Constitution, or involving its interpretation.”
– That is why the High Court has so much to do.
– No, it is not. I do not speak from the point of view of capacity, but the High Court is taking upon itself a great deal of work which, on the ground of public convenience, saving heavy expense, and speedy administration of justice, could be very much better done by the States Courts.
– If that be so, we have invested the States Courts with some Federal jurisdiction.
– We have invested the States Courts with all Federal jurisdiction, except certain exclusive matters.
– I understood the honorable and learned senator to say that we had ignored the States Courts?
– We are ignoring their exercise of it in practice.
– Is it not the litigants who are ignoring it?
– It must be the litigants who are ignoring it.
– It is rather anticipating what I was about to say, but, so far as regards the appeals, there is provision in the Act for special leave, and appeals are multiplied by that means, and also by permitting appeals from single Judges sitting to try cases with juries. That is the first thing. The second is that, with regard to the original jurisdiction, what ought to be provided is that that original jurisdiction should be exercised as by District and Circuit Courts in America, by the States Courts exercising Federal jurisdiction, unless it may be, in any particular cases the High Court should direct otherwise. My object is to make amendments which will bring about that result. If we are going to hand over the whole of the original jurisdiction in respect of Federal matters to the High Court, we shall be putting upon them a duty which it was never intended that they should discharge.
– But both the States Courts and the Federal Courts have that jurisdiction at present.
– That is so.
– And litigants can choose one or the other.
– I say that they should not be permitted to do so.
– The honorable and learned senator desires to cut down their option, and to compel them to resort to the States Courts.
– I am seeking to amend the Judiciary Act, in order to prevent the present inconvenient, costly, and, as I think, unconstitutional course of proceeding.
– Litigants select that course with all its disadvantages.
– I am endeavouring to inform the honorable and learned senator that I am seeking to amend the Act, with a view to put a stop to that.
– In other words, the honorable and learned senator contends that he knows thebusiness of litigants better than they know it themselves.
– I should prefer that the honorable and learned senator would allow me to go on. An interjection of that sort is not calculated to assist discussion.
– I did not make it offensively.
– I do not suggest that for a moment. Senator Best was not present when I commenced my speech, and I appear to have failed altogether to make it clear to him that what I desire is that we should have our judiciary system consistent with the Constitution. By the Constitution we have provided that States Courts shall exercise Federal jurisdiction, but we do not give them that Federal jurisdiction to exercise. Instead of compelling litigants, as is done in the United States, to take their cases in original jurisdiction to the Circuit Courts and District Courts - unless in exceptional cases which are ordered to be removed, and so on - we give them the opportunity to take them to the High Court, which shortly will not be able to deal with them, even if it is now. We know that perfectly well, no matter what their power may be. We ought not to permit that. If the state of things exists to which Senator Best has referred - and I admit that it does - the sooner we alter it the better, by carrying out the intention’ of the Constitution, and directing all that jurisdiction into the channel which the Constitution intended,namely, the Supreme Courts of the States.
– The present practice may be due to some extent to objections urged when the High Court was established, that the Judges would’ not have enough work to do for years.
- Senator Dobson is suggesting that the High Court Judges adopt the practice in order to make work for themselves. That may be so, but we must still adhere to the Constitution.
– Is it not, after all, due to the choice of the litigant, and to the fact that he prefers to go direct to the High Court.
– We have created our States Courts Federal Courts. Does not Senator O’Keefe think that it is derogatory to the States Courts that we should not send to them the business that ought to be transacted by them ?
– I have more sympathy with the litigants than with the States Courts.
– I remind Senator O’Keefe that the Constitu-‘ tion says that the States Courts shall be invested with Federal jurisdiction. We have made them Federal Courts, and have placed them in the position of. the Circuit and District Courts of the United States. All this jurisdiction is in the United States sent to the Circuit and District Courts compulsorily. Why should not our States Supreme Courts be placed in the same position?
– Does not the present practice enable the litigant to save money? If he were to go to a State Court invested with Federal jurisdiction would there not be the chance of an appeal to the High Court?
– Of course there would, but there would be exactly the same chance of appeal if he went before a Judge of the High Court.
– If he goes direct to the High Court rather than to a State Court, is not that calculated to save him a lot of expense and time?
– I think not. If we are to send the whole of our judicial business to the High Court we should change the judicial system established by the Constitution. Honorable senators must see that the work could not be done by three Judges. I am again rather anticipating what I desired to say, but I suggest to honorable senators that if we have the three Judges of the High Court going to Western Australia they may be detained there by a prolongation of the sitting, by the non-departure of the boat on the day appointed, or by bad weather on returning ; and they may be a few days late in getting back, with the result that cases must be postponed, jurymen and litigants inconvenienced, and the whole business disarranged. Members of the legal profession know the expense and inconvenience caused in that way. There is a further difficulty. Suppose a case is set down for trial in Western Australia or in Queensland, if it is impossible for the Judges to be there, it must stand over, although we have so many Judges in each State always available to try cases, that there need be no delay in the administration of justice. When Judges of the High Court were required to try a case of original jurisdiction, they might be engaged in appellate business in a remote State of the Commonwealth. _
– Apart from the question of expense, is not this the position : There may be an appeal from a primary Judge to the’ State Full Court, and from the State Full Court again to the High Court, and the litigant says, “I prefer to go direct to the High Court to avoid the risk of an appeal from a Judge of the Supreme Court of a State to the Full Court of the State.”
- Senator Best knows perfectly well that if we have a judicial system, as we have under our Constitution, we should adhere to what the Constitution prescribes.
– But have I not described the actual state of affairs?
- Senator Best must see that we have established not only a High Court, but also Federal Courts in each State by investing States Courts with Federal jurisdiction. The object of that was to lessen expense and to magnify the jurisdiction of the States Courts. Why should we undo what the Constitution contemplated by adopting the system now in vogue, which unnecessarily loads up, first of all the High Court with work which it will very soon be impossible for it to discharge, and, in the second place takes away from the States Courts the jurisdiction which they are fitted and authorized to exercise? In the next place, why should we run the risk of delaying and impeding justice in consequence of the small personnel of the High Court, which, as Mr. Deakin pointed out, renders it impossible to have cases tried as speedily as they would be if the appellate jurisdiction of the High Court were to be adequately discharged ? Does not Senator Best admit that position?
– I can hardly do so. What I contend is that the Judiciary, Act] is strictly in the terms of the Constitution.
– Perhaps it would be more convenient if I were to proceed with my exposition in the way I proposed. I venture to think that certainly the intention of the Constitution was that original jurisdiction! should be exercised by the States Courts as Federal Courts. It seems to me also that in the exercise of the appellate jurisdiction the High Court of Appeal should be a fixed and stationary tribunal. That it was so intended is, I think, plain from the rules in regard to appellate jurisdiction provided for in the High Court Procedure Act, which were adopted by Parliament. Without going into them in too much detail, honorable senators will find that by these rules, in section i, rules 13 and 25 ; section 2, rule 3 ; section 4. rules 11 and 12, and elsewhere in various places, it was intended that the appellate jurisdiction should be exercised at the principal seat of the Court. Without troubling to read them those rules provided that upon any appeal being entered at any district registry anywhere throughout the States, all the papers should be immediately forwarded to the principal registry. The whole of the procedure laid down byl these rules contemplated the hearing of appeals at the principal registry, and at the principal registry only. It is a very curious thing that even in regard to the original jurisdiction - and honorable senators who are members of the legal profession will understand this - they were all to be “ tested,” as the expression is, at the principal registry of the High Court. I do not trouble to read these rules, or to lay special stress upon them, because the learned Chief Justice himself admits the scheme of procedure contemplated by Parliament was that appeals should be heard at the principal seat of the Court. On the occasion of a public congratulatory address on the first visit of the High Court to Adelaide, the Chief Justice, in replying, said this-
The scheme of procedure as passed by Parliament was that the Court should sit in Melbourne or the capital city of the Commonwealth.
Subsequently, as I shall show in a moment, the departure made from that was a departure in point of policy, but made, not by Parliament and not by the Executive, but by the Judges of the High Court themselves. Honorable senators may recollect, in that connexion, that when the Estimates for 1903 were passed, the sum set down for travelling expenses was £200. Of course, we know that all that was contemplated then, was that there were to be visits of ceremony to the different States capitals by the newlyconstituted High Court. I do not think that anybody expected at that time that the £200 would swell into £3,294 in about twelve months. The first visit of the High Court was, as every one recognised, formal, and it was so expressed by the learned Judges both at Adelaide and at Melbourne. The Chief Justice said at Melbourne that the Judges thought it desirable they should not be - a mere abstract body, a figment of the brain, but real live human beings, not only willing to be looked at, but desirous of making ourselves acquainted with the different parts of Australia.
What was contemplated by Parliament was evidenced as strongly as it could be by the amount put down in the Estimates in regard to travelling expenses. Therefore, I ven- ture to ask honorable senators to say whether it can be doubted that on the establishment of the Federal Judiciary, wh’ich consists of the High Court and the States Courts exercising Federal jurisdiction, it was intended that no High Court circuits - no appellate circuits - should take place, and that the Constitution and the will of Parliament were entirely opposed to anything of the kind. It was also evident that there was no example or precedent for an itinerary appellate Court. The Chief Justice, in certain letters which have been laid before Parliament, page 11, says frankly enough -
It was recognised that there was no precedent for the proposal ; that is, for the proposal of an itinerating appellate Court. We know quite well also that the High Court of Australia was intended to be what Mr. Bryce so well describes in his Studies in History and Jurisprudence -
Broadly speaking, the Australian High Court will have to follow such steps and discharge such functions as have been followed and discharged in America by that exalted tribunal which Chief Justice John Marshall and other great legal luminaries have made illustrious.
The Supreme Court of the United States, as an appellate tribunal, never travels and never did. In the next place, in Canada, the Supreme Court, which is an appellate tribunal, standing substantially in the same relation to the Canadian Dominion as our High Court does to the Commonwealth, sits at Ottawa, and the Judges are under an obligation to reside within five miles of the city of Ottawa. In England, we know that the House of Lords, the Privy Council, and the Lords Justices of Appeal - the highest Courts of appeal in the Empire - sit in one place, and are not itinerating or peripatetic. So it is with every Court of appeal. It is a stationary tribunal. The action of the High Court of Australia is, therefore, a departure from an invariable and universal precedent throughout the British Dominions - in fact, throughout the whole world. We have also an example in the Supreme Courts of the States themselves. They remain, as appellate tribunals, in the States capitals. They do not travel. I am sure that no honorable senator has ever heard of an appellate tribunal in any country going upon what I call circuit. How was all this reversed? It came about in this way. To me it seems that it came about in the face of the Constitution, in the face of what I think was the will of Parliament, and in ,the face of precedent. On the 30th June, 1903, the Age newspaper wrote: -
The High Court should have sat in the capital of the Commonwealth. There the Judges preside, the officers carry on their duties, and the records are kept.
That, I think, is a very excellent statement of what we should expect in the case of our Judiciary.
– That is a strong argument in favour of the Capital being settled as soon as possible.
– It is a strong argument for objecting to what is being done at present. Melbourne is the capital and the Seat of Government of this Commonwealth. I do not wish to say one word that could arouse any feeling on the part of my friends from New South Wales, but I call the attention of the Senate to this : That when the Judiciary Act was assented to in 1903, the first thing done immediately afterwards was to proclaim Melbourne the principal seat of the High Court. That was done on the 2nd October. The learned Justices were appointed on 5th October. And it is a remarkable thing that in the other House of Parliament, Mr. Crouch - as honorable senators will find from the 14th volume of Hansard, page 141 1 - wanted to have Melbourne named in the Act specifically, instead of leaving the clause as it stood, and as it still stands, namely, that until the Seat of Government is established the principal seat of the Court shall be at such place as the Governor-General shall by proclamation appoint. Melbourne was appointed. That was just as effective as though ‘Melbourne had been’ named in the Act as Mr. Crouch desired. From my point of view, Melbourne must have been appointed by proclamation the principal seat of the Court. It would have been an absurd anomaly to decide that with our Parliament here, with our Executive here, and with our Administration here, we should have the seat of the High Court in some other place. The Court is part of the machinery of the Federation, and accordingly Melbourne was rightly proclaimed by the Deakin Government as the seat of the Court. By right and by law Melbourne is the capital and the seat of the Court.
– The temporary capital.
– It is the home of the Court. It is the Federal
Capital at this moment. It is the Seat of Government’ at this moment. It is not denied for an instant that the Court, as a Court of Appeal, ought to sit at the capital. It is not denied that that is the intention. To alter that state of things and to provide for a travelling appellate Court is, of course, a question of policy.
– Hear, hear.
– That was admitted, and there are two letters in which the learned Chief Justice - on page 4, and’ again on page 10 of the correspondence - describes it as a question of policy. He says it “ involves a question of policy of great importance.” In my view, if it is a question of policy that is a matter for Parliament, or for the Executive, to deal with.
– Parliament confirmed it by providing the money.
– That was after the act was done. Parliament may provide the money, but so far as the policy is concerned, it is dangerous for Judges to interfere in matters of policy. It exposes them to attack if the States complain. If the Judges of any Court have thrown upon their shoulders, or assume the responsibility of dealing with a matter of policy as to the necessities of the administration of justice in a particular part of a State, and those facilities are found to be insufficient, it is the Judges who make the arrangements who will be attacked. The Executive ‘is responsible for giving opportunities for the administration of justice. If justice is delayed who should be condemned? Not the Judges. They should be removed from the possibility of complaint. Nothing should be more foreign to the aspiration of Judges than that anything they do should be dependent in any way whatever upon public approval or public opinion; because if in one case Judges proclaim their disregard of public opinion when it is unfavorable to their determination, they are expected to be equally uninfluenced by it when thev imagine it to be favorable. But how are thev to ascertain, in any case, what that public opinion is? How are thev to ascertain whether the policy which thev may adopt is supported by the community or not? Of course, one need not, in this Senate, deal in any detail with the principle that Judges ought not to assume to interfere in any way whatever with ‘questions of policy.
I do not wish, to detain honorable senators by reading passages from the correspondence which has been tabled, but they will find that it is quite candidly admitted by the learned Chief Justice that the scheme of procedure, as adopted by Parliament, was that these appeals should be heard at the seat of the Court, and that the alteration was made by rules of Court, and the question to which I invite their consideration by means of this Bill, as far as that particular branch is concerned is : “ Ought the alteration to be made by Parliament “ ?
– Does the honorable and learned senator think that the High Court has exceeded its constitutional power by adopting a perambulating system ?
– I think it was never contemplated by the Constitution.
– The honorable and learned senator thinks that it would be more properly done by Parliament?
– Yes. I contend that Parliament never intended to abdicate its function of controlling, if I may put it in that way, the opportunities of getting justice given to the people of the country. The duty of the High Court is to hear, and try cases, and give judgment upon them. Its duty is not to determine whether in a particular State there shall be appellate or original jurisdiction circuits - that is for the Executive and the Parliament. Parliament has never abdicated, and I hope never will abdicate, its obligation in that respect, and if iti did it would be a very dangerous thing for the Court itself. No Justice would lightly accept such a responsibility, because, as I have said, if a complaint were made that the Court did not sit in a State frequently enough, that the interval between its sittings was too long, or too short, the whole burden of a criticism of that kind would rest upon the Justices, which would be highly inconvenient. They should not lav themselves 0Den to criticism in respect of matters which involve the application of public opinion, whether it takes the form of censure or praise. That should be entirely left to the Executive Government, with the sanction, and under the control of Parliament.
– That course was entirely approved by the Executive. I think the Chief Justice said so.
– I do not want to enter into that matter, because it is; a little controversial. I do not deny that in the correspondence the Chief Justice says that the Justices adopted the policy, and he believed - so he expressed it - with the concurrence of the Executive Government. I do not want even to use the word “ complaint,” because, so far as this stage is concerned, I desire to preserve this matter entirely free from anything which would be controversial or polemical from that point of view.
– But the fact remains that the Parliament accepted the rules of Court which created the policy, and then provided the money to enable the Justices to go from State to State.
– I differ from my honorable and learned friend. I submit that Parliament never did, by accepting rules, or in any other way, accept the change of policy.
– The rules were laid before both Houses, and they provided the necessary money.
– I do not wish to occupy too much time; but I should be discourteous to my honorable and learned friend if. I did not correct the erroneous impression under which he seems to be labouring. If the scheme of procedure adopted by Parliament was supposed to be wrong or inconvenient, it ought to have been directly asked, as I now ask iti by means of this Bill, to declare, in definite and precise terms, whether these appellates circuits shall take place. I know what my honorable and learned friend really alludes to. I hope it will be distinctly understood that I am not using language of condemnation, but merely stating what the law is, and what the position is. In the Judiciary Act we made a provision which is practically set at nought. We provided that the rules of Court should be laid upon the table of the Senate within forty days if Parliament were sitting, and that they should remain there forforty ‘days - that is, making altogether a period of eighty days - in order that it should have an opportunity of saying whether it adopted the rules or not. What happened ? These rules were made on the 1 2th October, the Parliament sat until the 22nd October, and the proper course for the Government to take was to lay the rules .upon the table of each House within those ten days before the close of the Parliament which had passed the Judiciary, Act, and which could, if it had wished, have said whether or not it adopted the alteration of policy made by the learned Judges. But that was not done. Therules were brought into operation, the circuits were taking place, the expense was incurred, and the rules were not laid upon the table until there had come into existence in 1904 a new Parliament, which knew nothing about the subject. We all know how rules are laid upon the table. I was a member of both Parliaments, and it never entered my head that rules , would be made altering policy. I expected rules to be made by the Justices to deal with matters of procedure and the ordinary sittings of the Court, and not to deal with, what was a matter of policy, and to repeal an Act of Parliament. This is indeed a new way to repeal an Act.
– But had the Justices the power to repeal an Act?
– I hold the view that the rules were ultra vires, but I do not wish to go into the matter now. I, as a member of this Parliament, disclaim all responsibility for the rules, and decline to be held as assenting to this change of policy, simply by the fact that a body of rules, laid before a different Parliament in the ordinary way, passed unnoticed. It is a perfectly legitimate, but very slender argument, I think, to say that the Parliamentmust be taken to have assented to this change of policy, simply because the rules of Court, which are usually taken as read, were allowed to pass unnoticed. Senator Best very truly says that Parliament subsequently footed a bill, but he will recollect that it would be very unusual for Parliament to refuse to foot a bill, especially a bill for judicial expenses, which has been paid. What a position we should have been in if we had refused our consent !
– As a matter of fact, these expenses were not paid.
– They were paid.
– Not in 1903. The whole question was placed before the Senate by the Government, who said, “ If you want the Justices to go from one State to the other, you must provide so much money for the purpose.”
– I never heard anything of the kind. All I know is that when the total amount was brought forward in the Estimates at the end of the year, and by me brought under the notice of honorable senators; attention was called to the extravagant amount of these expenses. I was quite unable at that timeto account for them. I do not wishto go into the question of expensesnow, further than to say that, although on taking office the papers in connexion with what had been done by the Watson Government came before me in August or September, their consideration was postponed in consequence of a vote of want of” confidence, and the subsequent pressure of parliamentary business, and it was impossible to go into them. When attention was drawn to the amount, I promised to thoroughly investigate thematter, and ascertain how it could be best dealt with. This, however, is a question with which I hope to deal when the Estimates are before us ; it has no direct bearing on the amendments which I desire to make in the Act.
– I call the attention of the honorable and learned senator tosection 12 of the Judiciary Act which is as follows: -
Sittings of the High Court shall be held from time to time as may be required at the principal seat of the Court, and at each place at which thereis a district registry.
– I am aware of that section.
– Does it not justify the regulation?
– That: is the section to which I alluded earlier in the evening, and on which the discussion took place in the House of Representatives, when Mr. Higgins drew attention to theposition, and submitted an amendment. I thought at the time that the amendmentsuggested by Mr. Higgins was unnecessary, because the section is satisfied by one Judge sitting in original jurisdiction. OneJudge on circuit constitutes the High Court, and if Senator Dobson looks at subsequent sections he will see that that isexpressly specified. If I had not been of that opinion when the Bill was passing through the Senate, I should have moved in the same direction as did Mr. Higgins. I frankly admit that I never imagined for a moment that the ambiguous language of the section would have been made use of by some peculiar mind to bring about what I regard as an evasion of the principles of the Constitution. I should havehad no part in passing the Bill if I had anticipated that provision would have beers so twisted.
– At any rate, the section makes it clear that the regulations are in order.
– No ; if we have to interpret the Act according to the principles of the Constitution, there is no difficulty whatever. I shall, however, refer, though briefly, to that matter in a moment. I am free to admit that there is a looseness of draftsmanship, which may have brought about the position which I deeply regret, and which I desire to rectify. Having directed attention to the constitutional position, and to the position of Parliament, I desire that Parliament shall have the opportunity by this Bill to clearly say what it wishes to be done. If Parliament chooses to place on ‘the statute-book its judgment, that the present arrangement shall be made permanent, that can be done. What I regard as objectionable, and inconsistent with the Federal Judicature in all its branches, is that the existing arrangements are hand-to-mouth and haphazard. The circuits and sittings are left to be fixed by rules of Court made to-day, and revocable to-morrow. The sittings are not periodical, and litigants =never know when; their cases will come on until a rule of Court is made announcing a particular sitting. As Mr. Deakin said* in the speech from which I have already quoted, if there are to be sittings in the different States, they ought to be periodical. There has1, not been a sitting of the High Court in Adelaide for two years until the present time.
– There has been no business.
– I know; but one reason advanced for a peripatetic High Court is that it will promote Federal unity- that it is the Federal -spirit which is to be benefited by the expenditure. What has become of the Federal spirit in Adelaide for the last two years? How many cases are to determine whether there shall be a sitting of the Court? If there is only one appellate -case awaiting trial in Western Australia, “has the whole Court to go to that State, or have the parties to be kept from justice for a year until some other case is set down ? On the other hand, are the parties to be placed at a disadvantage - though I recognise no disadvantage - in having to retain other counsel at the seat «of the Court or somewhere else?
– Might not appellants be debarred by the expense of coming to Melbourne?
– I think not. In my opinion, if the question is to be put on that low ground, it would pay the Commonwealth better to provide the expense of bringing counsel to the seat of the Court rather than send the entire Court on circuit to determine one case. However, that is a matter of detail. If Parliament wishes to change the policy which was adopted consciously or unconsciously,” and, indirectly, if honorable senators please, by the fact that the rules of Court passed unnoticed, let it be done by Act of Parliament. I have embodied’ in this Bill provisions which I believe to be in conformity with the Constitution, and with the design of the great Judicature which we erected. I am not speaking of the High Court alone, but of the whole Judicature ; and I say that we ought to carry out that design to its fullest extent. If honorable senators prefer, for local or State reasons, that the sittings should take place, no matter at what cost, it will inevitably mean an increase in the personnel of the Court. The Judges themselves admit the present system or practice cannot continue. It must end. At page 11 of the correspondence the Chief Justice says -
It was recognised that there was no precedent for the proposal . . . and further that after a time, and as the business of the Court increased, it would probably be found impossible to continue it to its full extent.
On the same page, in paragraph 7, the Chief Justice says -
It is not unlikely that it will in time be found impracticable to carry out the present system in its entirety.
I thoroughly agree with that statement. If we carry out the present system we shall require, not three Judges, but five times that number. Judges are only human beings, and are not gifted with superhuman strength, or the power of being in two or three places at once. At page 1.6 of the correspondence, in reply to the Chief Justice, I expressed a view which will commend itself to honorable senators. I wrote -
You admit that the system of Full Court circuits cannot be expected to continue, but every day it does continue, it will become more firmly established and more difficult to change. Vested rights are set up and strengthened by time. If the business increased, we might want not three Judges but thirty, to provide a full Court of
Appeal for each State. Increasing pressure of work on the Court, which you think would lead to discontinuance, would more likely be used as a lever to increase the number of Judges, to which Parliament is at present unalterably opposed. If discontinuance must come, the prudent thing is’ obviously to let it come at once.
If continued, the present system must break down by its own weight, and the sooner we calmly and quietly face the situation the better. In my belief, if these appellate circuits had never! been begun, they would never have been asked for. .Original jurisdiction is the next point with- which the Bill deals. I am endeavouring, instead of confining myself narrowly to the words of particular clauses, to offer for consideration the principles which underlie them. It has often been said that in the United States the field of activity is divided between the States and the Federal Courts on broad and intelligible lines, each recognising their limitations. That remark, owing to circumstances to which I have referred, does not apply to Australia. Certainly, on one side the Courts are not recognised as they should be. Senator Best, earlier in the evening, very properly pointed out that under the present system there is a choice to the litigant. I am seeking to alter that. Just as jurisdiction is given to ordinary Courts, so it is given to the High Court, and to the Supreme Courts of the States, as quasi Federal Courts. Every litigant is not permitted to bring his case in the Supreme Court of a State. If we made a concurrent jurisdiction we might have the same state of things happening. Every man, for a five-pound note, might go to the Supreme Court of a State.
– He would soon be discouraged if he attempted that.
– Because the Supreme Court would not allow him costs if he went there for a five-pound note.
– Why does not the High Court do the same thing ?
– The High Court has more or less concurrent jurisdiction.
– So has the other Court. In Victoria it is provided that cases under a certain amount shall be tried in the County Court, just as in South Australia we provide that cases under a certain amount shall be tried in our Local Courts. I think that what we desire to do is sufficiently expressed in the Judiciary Act, but apparently we were mistaken,, and its language is loose enough to enable what I think ought to be remedied to go on. But in the Judiciary Act we should have said, as has been said in the legislation of the States, “ You shall bring certain cases to the original and exclusive jurisdiction of the High Court, and all the rest - as is the practice in the United States - shall Le taken to the States Courts exercising Federal jurisdiction.”
– But that does not apply, because we know that inferior Courts are cheap, and there is a summary means of proceeding. In those other cases the litigants go to the High Court, because it ischeapest in the long run to do so.
– It isnot any more than it is in the case of the States Supreme Courts.
– They think so.
– Surely. Senator Best must see that the situation is exactly the same as if there were concurrent jurisdiction between the Supreme Court of a State and an inferior Court of a State. Under the Judiciary Act, as Senator Best is aware, there is a provision for what is called remitting cases. That was taken from the 1789 Act of Congress, and it related, not to Federal Courts’ like our States Courts, vested with Federal jurisdiction, but to States Courts with ordinary and non-Federal jurisdiction. That is to say, an action might -be brought in a State Court of ‘ordinary jurisdiction, and therewas a procedure for removal on the one hand; and, on the other hand, if a case were brought in a Federal Court, not the Supreme Court, because no cases of original jurisdiction are ever brought in that Court, with the exception of the rare cases affecting State and State, or ambassadors and consuls, but a Federal Circuit Court, or District Court, there was a power to remit it to a State Court for trial. That, however, is altogether inapplicable to our position, because? our States Courts are Federal Courts. We shall be reducing our system to a perfect farce if we permit litigants to go past our States Courts, invested with Federal jurisdiction, to burden the High Court with business which it ought not to undertake^ or if we permit them to ignore the StatesFederal Courts altogether.
– They prefer to go direct to the final tribunal.
– My honorable friend must see that they are not going to the final tribunal when they go to a single Judge of the High Court from whom there is still an appeal to the High. Court. It is, after all, its appellate jurisdiction, which here, as in America, clothes the High Court with most of its dignity and most ofl its .usefulness. I think that the practice to which I have referred ought to be remedied. The matter ought to be placed on the same footing as the ordinary jurisdiction of the inferior Courts of the States. We say that cases within a certain limit, or dealing with a certain subject-matter, shall be brought in a County Court, or in the Local Courts, as we calf them in South Australia, but that cases above a certain amount, or involving matters which should come under the jurisdiction, for example, of a Court of Equity, shall be brought, in the first instance, in the Supreme Court. I shall give honorable senators a few examples to show the sort of thing which I say will ultimately break down the High Court, however constituted. There were two land cases in respect of the taking of land at Largs Bay. We provided in the Property for Public Purposes Acquisition Act that in case of a dispute as to the amount of compensation, such cases should be heard in the High Court. We had previously ah Act which enabled them to be dealt with in the Supreme Court of a State which, I should say, is perfectly competent to determine a matter of that kind. However, we said that that power given to the Supreme Court of a State should cease, and that the High Court should deal with such cases. Two cases were brought in the High Court - one for .£254, and another for ^177 ros. - for the value of land and compensation.
– That is not an example of the mischief of which the honorable and learned senator has been speaking. That is the result of a direct act of the Parliament.
– I desire to amend it. I say that it is perfectly monstrous that cases of that description should be kept dangling on for months, or for a year, as these cases were.
– They were cases under the Property for Public Purposes Acquisition Act.
– My honorable and learned friend must see that I am seeking to alter that.
– It may be the same question, but it is certainly a different branch’ of it.
– The honorable and learned senator is not proposing to amend . the Property for Public Purposes Acquisition Act?
– I am. I may tell Senator Best that I prepared a Bill, with a view to amend the Property for Public Purposes Acquisition Act, in order to prevent these cases being tried in the High Court.
– This Bill does not do that.
– This is -a part of the. system. I desire that every matter of Federal jurisdiction shall be dealt with by the States Courts, and this is one such matter. When stating their policy, the Government intimated that they intended to introduce the Bill to which I have referred. They have not yet done so, but I am sure they recognise the absurdity of sending these cases to the High Court to be tried. Then again, why should not the fish cases, which were tried in Melbourne, have been tried before the Supreme Court of Victoria? No one would for a moment doubt the competence of that Court. It is comprised of men of the greatest possible experience, independence, integrity, and every quality that constitutes great Judges. We have had one example of how an extremely complicated case, arising from an evasion of the Customs Act, was tried by a Judge of the Supreme Court at Brisbane. I refer to the Robert Reid case. I observe that some Customs case is about to be tried here before a Judge of the High Court. Why should it not be tried before the Supreme Court of the State?
– Litigants prefer the High Court.
– I desire to prevent that, otherwise the Federal jurisdiction vested in the States Courts is a perfect farce. I notice that a case, was tried in Perth before the Chief Justice of the High Court and a jury of six the other day, in which a Mrs. Sims Reeves recovered ^75 damages from a gentleman of the name of Norton, who, it was said, had libelled her in Sydney. Honorable senators laugh, but whatever Norton may or may not be, it seems very hard that he should be dragged all the way from Sydney to Perth to defend a case tried there. Surely these cases should not be tried before a Judge of the High Court? This was a case of ordinary juris-‘ diction, although it was between citizens of different States. But should we not say by
Our legislation that cases of that description shall be tried before a Judge of a Supreme Court of a State?
– Up to the present, only a few such’ cases have been tried before the High Court.
– I am merely giving examples. I do not know how many have been so tried, but I remind Senator Best that the Judiciary has only existed for two years. If there is a remedy, should we not alter this kind of thing as .soon as we can? If we intend that the States Courts shall be invested with Federal jurisdiction, and that that shall not be a fiction, we should take care that that jurisdiction shall be exercised by them, and that the High Court shall be a Court of Appeal dealing with everything within appellate limits, in order to keep control and secure uniformity. I do not like to see the Supreme Courts of the States given the go-by, and I entirely deprecate the system of special leave which is permitted by the Judiciary Act. I deprecate these appeals by special leave and appeals from single Judges, especially in ordinary and non-Federal cases. It seems to me a monstrous thing. The sooner we stop that the better. To use the phrase of a very old and learned jurist in England, the Court by this means put their sickle too freely into another man’s crop. What does it mean ? It means that in every case it is in the discretion of the High Court to permit an appeal, not in Federal cases involving Federal jurisdiction, or a constitutional question, but in every case that comes under the ordinary jurisdiction of the Supreme Court of a State. I say that’ that was never contemplated. There can be no greater curse in this world than too great a facility for appeals. It is to the interest of the State to make an end of litigation. It cannot be denied that by this system, exercised with whatever care we please, appeals are fostered and encouraged.
– If both sides are determined to appeal, will it not save a step if they go to the High Court direct?
– I have passed that point for the moment. What I am dealing with now is the appeal fixed by the Judiciary Act. I ask honorable senators to say that the appeal by special leave ought to be stopped. It was objected to when theBill was before the Senate. Senator Gould- - as honorable members will find if they refer to the fifteenth volume of Hansard - objected to it, and pointed out themischief which might arise from it, and which experience shows has arisen from itMr. O’Connor then replied that it only applied to Federal jurisdiction. Well, asapplied to Federal jurisdiction, I do not think that it is a very desirable thing that there should be unrestricted discretion of that kind. But it may not be out of place that it should apply to Federal jurisdiction, because that might involve, in a small case, a constitutional point which? would otherwise be unappealable. But it was never expected to apply to ordinary cases, such as I will give examples of.. It is now being stretched to an extent undreamt of. For instance, special leave was granted in a criminal case in Sydney - the case of Slattery.
– -Lucky for him !
– I do not say anything about that; I do not wish to express an opinion one way or the other. There was no appeal in that case except by special leave. In criminal cases there is very seldom power to appeal anywhere, though there is a power to reserve points of law for the opinion of the Court. ‘ That is so in my own’ State.
– Nor is there in Tasmania.
– -But the learned Judge who tries the case may reserve a point of law for the consideration of the Full Court. If he reserves such a point of law the Full Court gives judgment. And then, forsooth, the High Court might by the fiction of special leave give an appeal from that judgment. TheY may give special leave to appeal from the judgment of the Full Court, and may reverse the finding of the Full Court and upset the verdict of the jury.
– The section which permitted that to be done was put in the Act advisedly.
– No. I have just shown the contrary by reference to Senator Gould’s objection, and; how it was met.
– Is noi the appeal to the High Court limited to those cases in which ‘ appeals lie to the King in Counsel ?
– No. I am stating the exact position. It is not limited in that way. Section 35 of the Judiciary Act provides that -
The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State from which at. the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgments whether given or pronounced in the exercise of Federal jurisdiction or otherwise.
And then paragraph b of the same section says - any judgment, whether final or interlocutory, and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal.
So that, as I say, there is unrestricted jurisdiction to grant special leave; and but for that there would have been no appeal in Slattery’s case. Then, also in Sydney, special leave was granted in two other cases. One was an application on behalf of the Phoenix Insurance Company, on the 59th September, in an action in which the plaintiff obtained a verdict for ^246 14s. In that case, of course there would be no appeal to the Privy Council against the company. Can any one say there was any great question of public importance justifying special leave in a case of that kind and for that amount? Special leave was also granted in a rating case between a municipality in New South Wales and the Agricultural Society of New South “Wales. Why? Is there to be no finality to State Supreme Court judgments? It was not contemplated or intended that there should be a power on the part of the High Court to literally invite appeals - no matter what amount was involved, no matter what the case was - in any case which was brought before a State” Court. As honorable senators will recollect, we imposed a limit of £300 instead of £500, which was the ordinary limit in respect of Privy Council appeals. But while we reduced the amount to ^300, we also put in those paragraphs to which I have referred, enabling special leave to be given. Unfortunately the enacting or first part of the section said it was to be exercised in case of “ Federal “ “jurisdiction or otherwise.” And although Senator O’Connor, as I have said, when objection was “taken to the provision, said that it only applied to Federal jurisdiction, the power has been enlarged, and, if I may say so, strained, to the extent to which I have referred. I think that everybody who has any desire to see our States Courts maintained in the position of dignity and of usefulness which has brought them distinction ever since the States were founded, will seek to prevent the hand of the High Court being extended to take from those States Courts, by way of appeal, cases which the High Court may in its discretion think it would determine, or might have determined, otherwise. We know perfectly well that we do not allow an appeal from the High Court to the Privy Council in regard to the constitutional relations inter se of the States, or between the States and the Commonwealth, without the High Court itself certifying. I should have no objection whatever to the Supreme Courts of the States having a like power. That is, let them certify in any case, irrespective of the amount affected, that the case may be taken to the High Court if they desire to have the decision of that tribunal upon it. But I think it is a monstrous thing to put it in the power of the High Court to say that it will take this case, that case, or any other case - every case if it chooses - under its appellate jurisdiction from the Courts of the States, to which we have been attached for so long, and whose powers we value so highly. That is all I desire to say upon that. “ There is one other matter to which I wish to refer, and that is, as to appeal from single State Judges. Of course one does not criticise - and I have no wish to do so from any technical point of view - judgments delivered by any tribunal. But, so far as they deal with matters of public interest, I think we are bound to deal with them if we intend to propose some remedy. And there are two judgments with which I have never hesitated to express my own individual disagreement - one relating to the exemption of Commonwealth servants from State income tax, and the other the case which is known by the name of Parkin v. James. The former startled the community. The latter, asserting the power of the High Court to entertain an appeal from a single Judge in chambers, shocked the profession. It seems to me that that power ought to be taken away. The difficulty simply is as to making it clear. The language of the Judiciary Act, so far as I can gather, never contemplated anything of the kind. But if it is to be read in that way, I suggest that we should make it plain that that state of things shall not continue. Now, I think I have gone over the principles affecting the main points in the Bill. The details with regard to the various clauses, and their operation, will, I frankly admit, bear a very great deal of discussion. But I think we are all animated by the same desire, and that is to place our Federal Judicature - understanding by that all the Courts .which are comprised within its ambit - on a fair and proper footing, if they do not occupy that position already. I think also that we are all animated by a desire to maintain the great status already acquired by the States Courts, and not in any way to lessen their dignity or their importance. I think, for my own part, that it is right for Judges to magnify their office, and to amplify their jurisdiction; but care should be taken in doing so not even to seem to disparage other tribunals. The dignity of a great Court of Appeal is not affected by a wise view of questions of that character, and’ I think myself that if the principles to which I have alluded were carried out in relation to each of the States Courts and the administration of Federal justice we should be able to place our Federal Judicature upon an exalted footing - worthy to stand on a level with the highest Courts of either England or America.
Debate (on motion by Senator Keating) adjourned.
Motion (by Senator Keating) pro-, posed -
That the Bill be now read a third time.
– I do not wish to delay or to endanger in any way the passage of this Bill, but I desire to take the opportunity of repeating what I said in discussing the Ministerial statement of the Government when the matter was alluded ti-that I still think this to be a quite needless measure. It purports to adopt exactly the same statistics of the States which, when adopted and made the basis of action by the late Government, were denounced as being “haphazard,” “guesswork,” and all the rest of it. The only difference between what is now proposed and what was proposed by the late Government is that the assent of Parliament is obtained beforehand, instead of being obtained in the way we proposed when the distribution scheme was brought up. It delays the dis tribution scheme for twelve months, but sofar as the basis of the redistribution is concerned, when it i’Des t take place it is to be exactly upon the same footing as it would have been if our method had been adopted. Parliament will have the same opportunity - unless Senator Millen’s amendment in the Electoral Bill is accepted - of rejecting the scheme, as it would have had under our proposal. Therefore, I adhere entirely to the method which the late Government intended to pursue. Whilst doing that, I am perfectly satisfied to see it done by means of this Bill, as the result will be exactly the same, and my honorable friends who have criticised it so much from the Victorian point of view have just as much reason to be critical of the statistics now, as they had’ when they were in the form in, which we chose to put them.
– I wish to draw attention to a point which I think is worthy of notice. I observe that in the case of an enumeration day, which is not a census day, clause 4 provides that the figures are to be taken “up ta and including the last quarterday before enumeration day.” That will involve us in this difficulty : That we shall have figures for one period of five years and three months, and figures’ for another period of four years and nine months, which is very undesirable. I think that the Bill ought to be recommitted to take out the words Which compel the Chief Electoral Officer to base his .return on the figures of the last quarter-day. That would be, in all cases, probably the 31st December, whereas the census day would be the 31st March.
– As the census is taken on the first Sunday in April, we should get the figures up to the 31st March.
– I move-
That the Bill be recommitted for the recon.sideration of clause 4.
-I regard this matter as being of some importance, in spite of the interjection of the Minister that the ‘census might be taken in April.
– It is invariably.
– If the honorable and learned senator will refer to the Im- perial Act he will find that in the United Kingdom the census is invariably taken in March, and if he refers to the New South Wales Act, and, I believe, the Victorian Act, he will find that the British practice has been adopted. Unless clause 4 be altered, we shall have one period containing the figures for five years and three months, and the next period containing the figures for four years and nine months. That, I admit, could be got over if the census were taken in the first week of April, but the fact remains that our legislation provides that it shall be taken on the last day of March. It is open to us either to amend this Bill, or to alter the Census and Statistics Bill, but I submit that it is desirable to adopt the former, course.
– Under the Census and Statistics Bill census day will be a day fixed by proclamation.
– At the proper time I shall urge a very grave objection to that provision. There is a strong reason why we should, as nearly as possible, adopt the date which is taken by Great Britain, inorder that our figures for the next census can be compared with the figures for previous periods in the States, as well as in the United Kingdom. If we make the necessary amendment in this Bill, it will not restrain the Government in. fixing census day, if it should still be left in the other Bill, as a day to be fixed by proclamation.
– Since Senator Pulsford indicated the object which he has in view, I have consulted a precis of the Acts of the United Kingdom, and of the States of the Commonwealth, and find, as Senator Millen says, that in the United Kingdom census day for 1901 was fixed as the 31st March, and that in New South Wales the same day was fixed. I see that there is some force in the argument used by Senator Pulsford, but, in view of the fact that, in deference to the request of an honorable senator, the third reading of this Bill was adjourned until to-day, I, in assenting to its recommittal, would ask honorable senators to allow it to pass through its remaining stages to-day.
Question - That the Bill be recommitted for the reconsideration of clause 4 - resolved in the affirmative.
In Committee :
Clause 4 -
The numbers of the people shall be ascertained as on enumeration day in accordance with the following provisions : -
Amendment (by Senator Pulsford) agreed to -
That the words “ up to and including the last quarter before enumeration day “ be left out.
Clause, as amended, agreed to.
Bill reported, with a further amendment.
Motion (by Senator Keating) agreed to-
That so much -of the Standing Orders be suspended as would prevent the Representation Bill from passing through its remaining stages without delay.
Motion (by Senator Keating) proposed -
That the Bill be now read a third time.
Question put. The Senate divided.
Majority … … 18
Question so resolved in the affirmative.
Bill read a third time.
Debate resumed from ist November (vide page 4391) on motion by Senator Keating -
That the Bill be now read a second time.
– I presume that no one will deny the desirableness, and, in fact, the necessity, of having machinery for the collection of Commonwealth statistics. Many years ago statistics were regarded as something to administer to national vanity, but to-day they are an absolute necessity to any civilized nation. Statistics are not only necessary for industrial and commercial purposes, but also for the business of legislation. Statistics, as it were, are the dials which mark the progress of events, and reveal to legislators the effect of past legislation, and, to that extent, they afford some guide as to what ought to be done in the future. While I recognise the extreme desirableness of having machinery for the collection of statistics, I desire to point out, as briefly as I can, the defects which, I think, mark the scheme as provided in the Bill. Before doing so, however, I should like to take notice of an inquiry made yesterday by Senator Dobson, and answered by Senator Keating. The inquiry was as to whether the scheme provided by the Bill would lead to economy, and Senator Keating’s answer was “ Undoubtedly.” I venture to differ from Senator Keating. Whatever scheme we adopt for the collection of Federal statistics, we shall have to- face additional expenditure. It is idle for those who voted for Federation to complain, provided the expense is reasonable, that additional machinery costs money. That is one of the inevitable consequences of establishing an additional Government, and, as we create all the necessary Departments, each will entail some expenditure. I am not putting forward a plea for extravagance, but we should set it down clearly, in view of the contrary public opinion which prevails, thai the machinery of this Government, like that of any other Government, has to be paid for. I remember well that before Federation was accomplished, there was no promise that was thrown so liberally to the electors throughout the Commonwealth as the promise of economy. It was pointed out how, by centralization and by the union of similar Departments in the various States, great savings would be made.
– There is one PostmasterGeneral, instead of six.
– Senator Walker was about the most lavish distributer of the promise of economy with which my State was blessed. Does the Post and Telegraph administration throughout Australia cost less than it did? I am not now finding fault, but there is an idea abroad, that, because the Federal Parliament incurs expenditure, it is, therefore, guilty of extravagance. My point is that the expenditure is essential to the proper working of the Federal Government. So long as the Federal authorities are careful not to be extravagant, the only people to blame for the additional expenditure are those - and they include all of us - who. after setting the advantages against the disadvantages, decided that Federation was the better course. As to the Bill, it seems to me that while it is absolutely necessary to have some machinery for .the collection of statistics which are essential to the Commonwealth, the States also may desire to maintain their existing Statistical Departments. There is an obligation on the Commonwealth .to have some machinery for the taking of a census in the first instance, and the collection of Federal statistics afterwards.; and the problem is how to meet the necessities of the Commonwealth on the one hand, and the wishes, or, it may be, the needs of the States on the other, without the danger of duplication, which must mean unnecessary expense. Two courses were open to us. One was for the Commonwealth to take over all the established machinery for the collection of statistics and supply the States with any figures they might require; and the other course was for the States to continue their machinery and supply the Commonwealth with the information.
– The, latter is the better way.
– My efforts will be to show not only that the latter is the inferior way, but that it would be quite inadequate to our purpose. It may appear to be somewhat immaterial which of the two courses we adopt, but there are obligations on the Commonwealth with regard to certain statistics which do not rest on the States. For instance, there is an obligation imposed on us to determine the number of people, in order to meet the requirements of the Constitution with regard to the apportionment of representation.
There is no obligation on the States to take a census of the people - with the States it is optional - and to trust to them in the hope that they will supply us with figures would be totally inadequate to our purpose. There is the broad difference between the absolute necessity which rests on the Commonwealth, and the mere option on the part of the States. Senator Stewart thinks that we ought to, ‘leave the matter to the States; but what would happen if the States did not do the work, or did it in a way not sufficient for us? What would become of the requirements of the Constitution? We must remember that at every point we are confronted by the fact that we are under a rigid Constitution ; and that is one objection to leaving this matter with the States. I lay it down as my starting-point that it is absolutely necessary for the Commonwealth to control the machinery for the collection of the statistics which are essential to our purpose. I have no desire to do anything which will create friction between the Commonwealth’ and the States. On the contrary, I am animated by a desire to take such a course as will prevent friction. It does not follow, however, that in order to avoid friction, the Commonwealth is necessarily to yield without making any representation to the States as to what our needs are. I think that in this case we have yielded without making a reasonable effort’ to come to an understanding with’ the States. Further, it does not follow that we can avoid friction by avoiding it today. Under this Bill, while we may avoid even the necessity for negotiating with the States to take over the Departments, it will not be very long before we shall find a considerable amount of friction existing as the result of the dual control which will have to be exercised. It is a saying as old as the Bible that a man cannot serve two masters. In this Bill it is proposed to create a central Department under Federal authority in Melbourne, and to give that Department some measure of authority - I do not know what - over the States Departments. I venture to say that it will not be twelve months before there will be friction between the central and the States Departments. It is within the knowledge of every honorable senator that efforts were made by Sir William Lyne, when Minister of Home Affairs, to carry out the construction of public works through the Public Works Departments of the States, and that the plan had to be abandoned.
– It has not been abandoned in South Australia.
– It does not follow that because Sir William Lyne abandoned the method, that there was a necessity to abandon it.
– It is certain that friction did arise in certain States, for instance, in New South Wales. I am not saying where the fault lay, because I do not know ; I merely point to the fact that there was friction, and both Commonwealth and State were glad to say good-bye, so far as public works . were concerned. The mere fact that South’ Australia may have been more reasonable, or that the officers there are differently constituted, in no sense weakens my argument. In the case of statistics, friction with only one State would mean the break-down of the whole machinery.
– We could set up our machinery then.
– On the eve of a general election? I shall shift my ground for a minute, and ask honorable senators, who seem to see such disadvantage in the plan I suggest - namely, that the Commonwealth shall be the controlling authority, with power over the machinery, but willing at all times to supply the States with any information required by them - to show what objections can be offered against it. With regard to the census, it is absolutely imperative that the Commonwealth should have control of the collection of the figures necessary for that purpose, and I think that if it did not lead to economy it would, at any rate, prevent increase of expenditure, if the Commonwealth also had control of the machinery for the collection of ordinary statistics. 1 ask honorable senators not to assume that because the Bill proposes one scheme, any alternative scheme is necessarily objectionable.
– Does the honorable senator propose that all the States Statistical Departments should be taken over?
– Yes, just as we have taken over other Departments.
– A very good idea !
– That is not the proposal of the Bill, which, leaves all the States Departments as they are, and establishes a Federal Bureau, with which they are to have some sort of loose association. The Central Bureau has to exercise some control, and that control has to be arranged mutually. I venture to say that such a’ system must break down. For instance, if the Commonwealth had an imperative call for certain statistical information, and when the request was sent to the State Department it happened that the Premier of the State was employing the officers to collect information from him, what would happen ?
– The Commonwealth would have to wait.
– That is so. I say again that I am not one to do anything to set up friction, but in matters of this kind the Commonwealth ought not to be asked to take second place. I can conceive of no serious objection to the plan I propose, except the passing difficulty of arranging the basis of transfer from the States to Federation.
– The Commonwealth Government use States officers in electoral matters.
– That is so ; but I think I am right when I say that in the report on electoral matters, which has been so frequently alluded to of late, it is stated that much of the trouble in the Sydney Electoral Department arose from the fact that the central office attempted to exercise control, and could not do it effectively. I am not saying that the system proposed by the Bill would give rise to trouble every day. I merely point to the possibility of trouble occurring at a critical’ time to the Commonwealth. Who would suffer from the plan I suggest? It would not cost a penny more than the plan proposed in the Bill. Whether we do, or do not, take over the States Departments, we shall have to pay for their up-keep, if not wholly, at any rate in part.
– We should have to pay the whole.
– No, because we could levy a .contribution from the States for the information we supplied in exactly the same way that under this Bill it is proposed that they should levy the contribution upon us. The whole question is narrowed down to this : There is to be certain machinery, and the question is who is to control it, whether it shall be under one central dominating administration, or under half-a-dozen different Departments of the various States.
– The police in all the States collect statistics.
– They have always done so. We must work with the States in this matter, or incur enormous expense.
– I admit at once that the police collect statistics, and that we must work with the States. The only point is whether, in connexion with these various Departments in the different States, we should exercise control over the internal office work. It is not proposed under this Bill that we should do so, and I believe it is desirable that we should. Let me remind honorable senators of the inequality noticeable in the various Statistical Departments of the States. I do not affirm that the Departments in New South Wales and Victoria are more efficiently conducted than are those in the other States, but it may be admitted that they are more complete Departments. Judging from’ their published records, their machinery is larger, more complex, and works in a wider area than, for instance, that of the Department in Queensland. It is evident, therefore, that if we are to rely upon the States Departments, we must enlarge the machinery of the smaller offices, in order to bring them up to our requirements, and to secure anything like uniformity in the information collected and the method of its collection. It is quite evident that we must do a great deal of work that is not at present done by the States Departments, and the effect will be, in a variety of ways, to give rise to friction, and to the evils of dual control, which may lead to the absolute disorganization at a critical time of the Departments themselves. I am not attacking this Bill as the Bill of the present Government, because they may have inherited it from their predecessors; but, so far as I know, no particular effort has been made to consult the States, or to ascertain their wishes in this matter. I believe that some correspondence has. been entered into, but has never been made public, and, so far as any information we have is concerned, the States may prefer the course that I am suggesting.
– I think that the States would Le quite willing to transfer the work to the Commonwealth.
– I believe they would ; but, so far as I know, no effort has been made to consult them on the point. If they have been consulted the Senate is entirely ignorant as to their wishes in the matter.
– Different States would desire to collect different statistics.
-That may be so; but the honorable senator will admit that the Commonwealth would cover most of the ground which the States desire to cover. If a particular State desired an extended inquiry in a particular direction, there is no reason why it should not provide for it.
– South Australia would not require statistics of the coal output.
– That is not material, because, with other things, that would come under the one heading of factories and works. It is very curious that Senator Keating should have relied for support for this Bill upon the report submitted by the conference of Statisticians. I have had a look at that document, and on the face of it, it is shown that it is not at all a reliable guide for us. In the first line of the report it is made clear that the conference was convened to consider matters bearing upon uniformity in the collection of statistics for the Australian States and New Zealand. There is not a single word in the report to show that the question of the control of the statistical machinery for Federal and State purposes was ever thought of. The question dealt with by the conference was merely the desirableness of adopting a uniform method for the collection of statistics. Yet Senator Keating brings this report forward as an argument in support of the Bill. I do not question the ability of the gentlemen who met at the conference in, any way, but they were States Statisticians, and they were never asked to consider, and never did consider, the question of the collection of statistics from the Commonwealth standpoint.
– I think that Mr. Coghlan might be called- an Australian Statistician.
– If the honorable senator means that Mr. Coghlan has collected statistics about the whole of Australia, I concede the point, but so has Mr. Johnston. They have all done so. I should not, therefore, single out Mr. Coghlan, except, perhaps, that it might be admitted that his work has been more detailed and fuller than has been that of some of the other States Statisticians.
– The honorable senator said that he had considered, not Federal statistics, but only State statistics.
– I did not say anything of the kind. What I said was that the States Statisticians have never considered the question of collecting statistics for Commonwealth purposes. Their re port need only be referred to to prove that. Take the census, for instance, and it must be admitted that they never considered” the collection of the census from a constitutional point of view. They were not called upon to do so, and it was not the purpose for which they met. I take a somewhat parallel case in connexion with the question of the_ transferred properties. When that question was under review, the Government did not merely request representatives of each State to meet together to discuss how the properties were to be transferred, but they sent also a Federal representative. The matter was one of mutual concern, and the Government therefore said, “ Let a representative of the Federation meet the six representatives of the different States.” At this conference of Statisticians there was no officer present to represent the requirements and interests of the Commonwealth in any way. It was a conference of six State officials - each, we may assume, with a tender regard for his own Department - met to consider matters which were not of vital importance to the Commonwealth as the Commonwealth.
– Uniformity of collection is of importance to the Commonwealth.
– I am unable to understand the interjection. That uni-, formity is desirable I quite admit. But if that were sufficient, why has this Bill been introduced? The conference decided upon uniformity in the collection of statistics in order that just comparisons might be made as between one State and another. I admit the desirableness of uniformity in the collection of State statistics, but it will not give us what we want. I fall back again upon the census, and I say that we have no assurance that the census will be taken, by the State Statisticians, or that, if taken, it will be taken an each ‘State on the same day. Having to assume control - as we must do if we desire to be loyal to the Constitution - of the machinery for the collection of the census, I say that we should do it in a business-like way, and take control of the whole of the machinery for the collection of statistics. With regard to the census, I should like to say that we have no evidence that any serious effort was made to arrive at an understanding with the States by which we could obtain more complete control over the States Departments than is proposed under this Bill. On: the contrary, it is quite evident to me that the moment the States, or some of them, displayed a disinclination to surrender their Departments, the Federal Government yielded at once. This yielding on the part of the Government was carried so far that, as introduced, the Bill absolutely left the question of the census an open one. It did not even determine that the census should be collected, so fearful were the Government of offending the susceptibilities of the States. That was pushing the thing too far altogether, and I welcome the amendment made in the Bill in another place, which, at any rate, in the matter of the census, has enabled us to say clearly and emphatically1 what is meant, and makes it quite clear that we are going to have a census. My only regret is that the Bill does not, with regard to statistics* do what the House of Representatives has caused it to do with regard to the census. Senator Keating used a quotation last night, which he said was from the speech of an American senator, in introducing a Bill to the Congress. It is curious that the Minister should have ventured to use that quotation at all. The honorable and learned senator did not give the name of the American senator from whose speech he quoted, but I have since referred to the Congressional debates, and I find that the speech was made by Senator Queries. I gather from the remarks made during the debate that he was accepted as being to some extent responsible for the Bill, and had evidently been a member of the Committee charged with its drafting and presentation. The history of the Bill, as revealed by the debates and the quotation which Senator Keating, gave ito the Senate, goes to show that we are absolutely on the wrong track. The purpose of the Bill introduced into the American Senate was really to undo the very thing that we are seeking to do here. Its object was to bring under a central administrative and executive head the various Departments that existed throughout America for the collection of statistics. Apparently the practice had grown up there of having statistical bureaux connected with the various branches of the Public Service. It was found that in consequence of this, even although these bureaux were under the one Federal Government, and not under several Governments, friction, jealousy, and trouble were created. In order to avoid that, the
Bill was introduced in the introduction of which the speech was made from which Senator Keating quoted. It’ it was necessary there, where all the various statistical bureaux were under one Government, though in different Departments, in order to do away with friction, jealousy, and want of uni? formity, to bring them all under one executive and administrative head, how much more necessary is it for us, where the several statistical bureaux are not under one,, but under several Governments ? I propose to read a quotation to supplement that, given by Senator Keating. It is from a speech by the same American senator, and is as follows : -
I venture to say that if the several statistical bureaux are left attached to the various Departments, you will never be able to consolidate them, because the moment you attack a bureau and undertake to combine it with something else you raise jealousy, suspicion, and dissatisfaction, and’ the people interested will come here and oppose the measure.
That is an exact description of what they were trying to remedy in the United States., and it is the position of .affairs that we find repeated here. As Senator Queries pointed out, whenever any alteration is sought to be made, the officials interested make their influence felt in Congress, with a view to preventing any amalgamation. We have had the influence of the StatesStatisticians in evidence here, though unconsciously, as far as they are concerned, I. admit. It is, however, apparent in the fact that their report is taken as the basis of this Bill, a report which discloses a belief on their part that their Departments should continue to be conducted as they are at present. I have no wish to reflect in an way upon gentlemen who are deservedly held in the’ highest esteem, but I say that it is not safe to be guided by the head of any Department in deciding what the future of that Department shall be. I have never known of a case in dealing with proposals to improve the organization of the Public Service where there were not from within the service protests against any change whatever. The same remark applies here. These gentlemen have spent a life-time in building up their Departments, they are very naturally proud of them and feel a certain amount of jealousy when any. attempt is made to disturb the work which they have been doing. Consequently I cannot regard them as disinterested witnesses. I think that before we agree to adopt the proposals of the Government an effort should be made to confer with the States in order to see whether it is not possible to arrive at the alternative I have suggested - whether instead of leaving the ma - chinery with the States, and leaving them to supply the Commonwealth with information, we could not take the machinery more effectively into our own hands, with the undertaking to supply to the States the information which they require. Before we commit ourselves, I think that a serious effort ought to be made to confer with the States with that object in view. There is no urgency about this Bill. The most important matter involved in it is the census, and that is not required to be taken till five years hence. Surely in the meantime negotiations could ‘be opened with the States, in order to see whether we could not arrange to bring all the statistics under one head, instead of having them arranged by separate and independent Departments. That has not yet been done, and that is my objection to the Bill. I am therefore placed in this, position : I do not wish to vote against the second reading of the Bill, because if nothing better could be obtained we should have to accept it, in view of the requirements of the Constitution. But I think there is a prospect of getting something better. The only courses open” to me, therefore, are either to ask the Government to consent to postpone the Bill indefinitely, so as to permit of these negotiations, or to move that the Bill be read a second time this day six months.
– The honorable senator can move an amendment in Committee.
– No amendment that I could move in Committee would meet my purpose. What I wish to effect is that the States shall give up their individual machinery, and leave one central Commonwealth body to obtain the information. But any amendment which would carry out that object would, I think’, be ruled out of order as involving a complete reversal of the scheme of the Bill. On the other hand, I do not wish to do anything which might be regarded as hostile to the Government. It would be foolish if I sought to do anything of the kind, because I have very grave doubts as to whether the view I expressed would be entertained by the Senate.
– The honorable senator wishes to obtain the opinion of the Committee-
– But I wish to do that in the most effective way, and the only course open to me is to accept the Bill as it is, or to move that it be read a second time this day six months. It is the latter course which with reluctance I propose to follow. I repeat that there is no urgency about it, and that it seems to me that negotiations might be opened with the States Governments, to see whether the alternative scheme which I have suggested could not be carried out.
– There have been negotiations with the States, and the correspondence was laid on the table of the Library. I think it is there still.
– The Library is almost a trap in respect of the correspondence deposited there ; because no record is kept of official papers left there, and when one asks for information one is told that it is not available. I certainly think that it is highly desirable that the Government should enter into negotiations in order to see if it is not possible to bring the States into agreement.
– If the honorable senator can induce the Committee to negative clause 6 it will be an indication that the Committee approves of this scheme. We might test the whole matter in that way.
– I do not know that it would. It would simply mean that we affirmed the principle of establishing one central bureau in Melbourne. I think the matter can only be tested in the way I have suggested. Therefore, at the end of my observations I shall move that the Bill be read a second time this day six months, but if in the course of the debate arguments are adduced which make it clear that the course proposed by the Government is preferable, I shall withdraw the amendment. Now let me say a word or two with respect to the details of the Bill. My first objection to the scheme is that it may practically be described as an enabling Bill. The amount of “ regulation “ and “prescription” and “Minister” and “GovernorGeneral “ in this measure is wonderful. I have never seen so many provisions of the kind within so small a compass. There are twenty-eight clauses in the Bill. Of those sixteen refer to officers only - that is. give directions to those who are to constitute the Department. The others consist of the title, the interpretation clause, and the clauses- which provide that there shall be a census. Nine clauses consist of directions to the public. We come down to sixteen clauses which provide machinery for giving effect to the Bill, and out of those no less .than fourteen have in them either the word “regulation,” or “prescribed,” or “the Minister,” or “the GovernorGeneral.” Thus out of sixteen clauses fourteen ate absolutely left to have effect given to them by regulation. We have previously had discussions in the Senate on the growing tendency to shirk our proper responsibilities by handing them over to the Executive. It has always appeared to me that this is a slovenly way of doing our work. Of course in a Bill of this kind reasonable limits have to be allowed, but a great deal of this measure merely enables things to be done. Indeed, so much is left to discretion that it affords an additional reason for our endeavouring to arrive at some arrangement with the States. If we do not, I say frankly that I do not know where the Commonwealth is going to get its statistics from. It is because we propose to give power to the Governor-General to make arrangements with the States that the remaining clauses of the Bill are necessarily indefinite, inasmuch as we do not know whether such arrangements will be made, or what their character will be. Even if the alternative scheme which I have suggested were not adopted, it would have been better for the Government to have entered into arrangements with the States so that they might have been in a position to put a more definite measure before us. In two matters there is a remarkable contrast between this Bill and the legislation of Victoria, New South Wales, and Great Britain in respect to similar subjects. Indeed the arrogance of some of the clauses is quite startling, A wide extension of power is sought to be obtained. I invite honorable senators to look at clause 19. It gives power to the Statistician or any officer authorized by him to enter any factory or workshop, or any place where persons are employed, and to inspect any part of it, and all plant and machinery used in connexion with it, and to ..make such’ inquiries as are prescribed or allowed by the regulations. The . Minister may tell me that it is necessary for the purposes of ,t3his Bill that that power should be given. But if honorable senators compare that clause with corresponding sections in the Acts to which I have referred they will find that this Bill omits the words, “ for the purpose of making any inquiries which are necessary for the proper carrying out of this Act.” Under this Bill a statistical officer can enter premises where persons are employed for any reason he likes, or noreason whatever. I do not say that a statistical officer is likely to wander round factories for the mere pleasure of doing so ; but when we are giving officers powers of this kind, it should be laid down that they are given for the purposes of the measure, and not for any other purposes. In Committee I intend to move an amendment dealing with that matter. The other point to which I wish to draw attention has relation to the excessive character of the penalties imposed under the Bill. Here, again, the measure is true to the traditions which apparently the Senate is seeking to establish, I find that we have in this Bill £10 penalties where a penalty of ^5 is imposed in New South Wales and in the Imperial Act. Then in other provisions we have a penalty of ^50 as compared with £20 in the New South Wales Act, and £50 as against £5 elsewhere. These excessive penalties are, in my opinion, not only not warranted by the nature of the offences sought to be guarded against, but to my mind they place our legislation in a very unsatisfactory light. I never ie.gard a desire to impose excessive punishment as marking a very high standard of civilization ; and it is a matter of keen regret’ to me that the tendency previously displayed by this Parliament to impose high: penalties is being repeated in this measure-. I have now endeavoured to put forward my main objections to the Bill. I shall listen with considerable interest to those who may follow me, and particularly to the Minister, to hear what he may have to say as to the alternative scheme which I have suggested. But I ask honorable senators before they arrive at a conclusion as to the scheme of ‘the BilE to remember’ that there is no urgency about this matter whatever. No harm will be done by waiting a few months. And I think that it is possible by waiting a little while, and by negotiations with the States that we maybe able to obviate a crop of difficulties and friction between the States and the Commonwealth Government. In accordance with what I have indicated, I beg to move -
That the word “ now “ be left out, with a view to adding the words “ this day six months.”
– I think it wil’l be evident to every honorable senator that the vitally essential part of this measure is that relating to the administration. We may have a Bill which otherwise looks very well; but if the administration be left in a loose and unsatisfactory condition, we cannot expect to have satisfactory results. I must thoroughly indorse everything that Senator Millen has said as to the probably unsatisfactory condition in which Australian statistics will be placed if, instead of having one absolute, controlling, Statistical Department established, we have the Commonwealth depending upon six States, each of which has more or less varying views, and the Departments of which are more or less under the necessity of satisfying the Ministers of those various States. I am not sure whether it is not possible, even now, to so alter the Bill in Committee as to carry out our purpose. The Constitution has distinctly conferred upon the Commonwealth the power of taking the census and preparing statistics. I feel tolerably certain that if it were exercised prudently we> should find the States willing to work with us. I believe that if we were to announce our readiness to take over the State offices, and to make the best possible use of the State ‘officers, and to act in a most friendly spirit, and in the way best calculated to promote not only Commonwealth, but State interests, we should not experience very much difficulty in obtaining their consent. Perhaps, by the omission of clause 6 we might achieve our object.
– Would not that be setting up an alternative scheme?
– I do not think so. Apart from that matter of administration to which I have referred, a number of changes are .required in the Bill, in order to make its provisions perfect. The New South Wales and other Acts provide in a schedule the form of the oath to be taken by the officers to observe secrecy. It is desirable that this Parliament should draw up a schedule for this purpose, and not allow this important matter to be dealt with by regulation. There are some matters which we are obliged to leave to be dealt with in that way, but where we can act, surely we ought to do so. In my opinion, several definitions should be inserted. For instance, we ought to define what we mean by the word “Census.” Clause S provides that “ the census “ shall be taken in 191 1, and in every tenth year thereafter. But it is usual I think to begin a Census Act with a definition that “ Census “ means an account of the population. It is a very simple thing to put in a definition. I suppose there will be no objection to saying that “ the Minister “ means the Minister of Home Affairs.
– That is all provided for in the Acts Interpretation Act.
– I am altogether against leaving things which should be obvious, to be defined by the Acts Interpretation Act, because I believe that we can carry the process of shortening Acts to too great an extreme. The word “ plant “ should also be inserted and defined, because it deals with an important matter. The Statistician’s work in regard to the population will be the most important portion of his duties. Therefore, it will be prudent to put in a clause to the effect that he shall, as soon as possible after a census or other enumeration day; publish a statement showing the total population of each State, and the aggregate population of the Commonwealth on such census day.
– That will be done as a matter of course.
– It might be said that the whole thing will be done as a matter of course. The ordinary duty of the Statistician will be to collect statistics and prepare them for publication, but everybody knows that the full figures of a census are not ready for many months, sometimes for a year or two after it was taken. What I want to compel the Statistician to do is by a special effort to prepare statistics showing the aggregate of the population in as few days as possible from the taking of the census. Surely, that is desirable ! We do not wish the Minister to interfere and direct that the matter may be delayed. It may be delayed for political purposes, because the Statistician is put under the thumb of the Minister. We do not want him to be in that position more than we can help. It would also be well to define the day when the census shall be taken, and I suggest that sub-clauses 2 of clause 8 should be altered so as to read as follows : -
The census day shall be the Sunday nearest to or occurring on March 31st.
I do not see any reason for the small number of subjects which appear in clause 16, under the heading of “ Statistics.” Certainly it ends up with the phrase, “ and any other prescribed matters.” But as we are defining about ten different heads of subjects, I do not see why we should omit others. I have pointed out that the most important of all - population - has been omitted. It may be said that population figures are provided for under the head of census. That is quite true as regards once in ten years, but we want to keep a running account of the population. That is required by the Constitution, because, apart from the representation of the States depending upon the population, the charging of expenditure by the Act depends upon the statistics of the Commonwealth.
– And the Representation Bill requires it to.
– Yes. This account of the population must be kept up, not merely at census-time, but quarter by quarter. Therefore, the list of subjects to be dealt with by the Statisticians should begin with the word “ population. “ Strange to say, the subject, “ Postal and telegraphic “ is omitted. There is no reference in the list to property, income, education, religion, or employment. Are all these matters to be left to be prescribed bv the Minister?
– But education is a subject within the jurisdiction of the State.
– Yes ; but if the Commonwealth is preparing statistical returns for all the States, it should make its books complete, so that they shall contain, not only the statistics representing the Departments absolutely controlled by the Commonwealth, but also the statistics representing the life, the property, and all the interests of the Commonwealth. I notice that clause 27 requires that all letters and packets containing statistical matter shall be carried free. When Senator Drake was conducting the Post and Telegraph Bill through the Senate, he was very emphatic in declaring, that the policy of the Commonwealth was that no work should be done by the Post and Telegraph Department unless it was paid for. I am aware that already in one or two other Departments there has been some departure from that policy. But “the departure proposed in clause 27 of this Bill is an immense one, and therefore I am anxious to hear what Senator Drake thinks on the subject.
– Does the honorable senator approve of it?
– I do not think that I am going to oppose it. If the States are permitted to use the telegraph freely for this purpose, it may throw a good deal of extra work upon the Telegraph Department. Therefore, it is a matter which I think ought to be watched. The next clause deals with the question of making regulations. Clearly, no regulations could be of more importance than those relating to the census and statistics. There is an Act which requires all regulations made pursuant to any Act to be laid before both Houses of the Parliament. But I think that we ought not only to make that express provision in this Bill, but to provide that the regulations and the schedules shall be approved bv Parliament.
– It ought to be provided that the regulations shall not’ come into operation until the’ lapse of a certain period from their submission to Parliament.
– Yes, I consider that the drawing up of such an important paper as a census schedule , by the Statistician, with or without the control and consent of the Minister, is not satisfactory, and that we, as the representatives of the people, ‘Should insist upon having a say in regard to its form. We should insert a clause to the effect that the schedules shall receive the approval of Parliament before they are distributed. These are some of the chief points which have occurred to me. There are others with which I may deal in Committee.
– Senator Millen has pointed out that there were two courses which the Government might have taken, and that in his opinion the course which they did take was the less preferable of the two. It would appear from his remarks that the Governments of the Commonwealth - in his strictures he did not confine himself to the present Government - have been neglectful of their duty in regard to the provision of legislation for census and statistics to this extent - that before bringing down a measure to Parliament they have not apparently consulted the several States. Last night, when moving the second reading of the Bill, I wished to show the necessity for the establishment of a Commonwealth Bureau of Statistics, and in doing that I pointed to the fact that consideration had been given to that question by. a conference of Statisticians which was held in Hobart in 1902.
– Not according to the report from which the Minister read last night.
– Then the honorable senator cannot have seen a copy of the report from which I read?
– It was handed to me by one of the Minister’s officers to-day.
– The very extracts I read last night related to a proposal for the establishment of « a Commonwealth bureau. Those gentlemen who were engaged in the conference considered what would be the best course thereafter to follow in connexion with the compilation of the States statistics, and what should be the method of organization and inter-relation between the States Departments of Statistics and the contemplated Commonwealth bureau. Senator Millen would have us believe that the Governments of the Commonwealth have not been in communication with’ the States in regard’ to this matter. The contrary is the case.
– I said that, so far as the papers showed, we were in ignorance of any communication.
– There has been a large quantity of correspondence, which s referred to during the discussion in another place, with the result that it was laid on the Library table. I have here a precis of the correspondence, showing that replies were received from the different States Premiers as far back as June and July last. From New South Wales the reply was to the effect that the acting State Government Statistician was of opinion that there was no portion of the work now being performed by the staff in New South Wales which’ could be more efficiently or more economically performed by the Commonwealth Statistical Officers. The New South Wales Government, of course, accepted that opinion of their chief officer.
– And the Common.wealth Government accepted it.
– The Commonwealth Government accepted the reply of the New South Wales Government.
– But the Commonwealth Government never put their own view forward.
– Undoubtedly they did. In June last acknowledgments of the receipt of the Commonwealth Government communication were received? from Victoria, Queensland, and Western. Australia.
– Were these not replies to an inquiry by the Commonwealth. Government for an expression of opinion?’
– The States Governments were asked whether they were prepared to co-operate with the Commonwealth Government to the extent of establishing a system for compilation of statistics, which would result in the Stateshaving the benefit of the Commonwealth, organization, rather than the Commonwealth having the benefit of the existing; States organizations. From South Australia, on the 15th July, a reply was received’ that the State Government was of opinion’ that there was no portion of the work then being done by the States Departments which could be more efficiently or more economically performed by ‘a Common- wealth Statistical Bureau
– That appears tobe the general opinion.
– This correspondence was instituted by the late Government, as honorable senators will see from’ the fact that in nearly every instance the acknowledgment, if not the reply, was received in June. On the 7 th? of July a commuication was received from Queensland, to the effect that their State Statistician considered two schemes practicable - either the establishment of a central bureau, having a branch office in each State, or provision for the supply of data by the existing States Statistical Departments. The reply also stated that until it was determined what form the bureau would take, and the range of subjects it would embrace, it would be difficult to say what portion of the Queensland wor)k could1 he more efficiently or economically performed at the Commonwealth Statistical Bureau. According to promise, a reply was received from Western Australia on the 10th July, to the effect that the only portion of the work which might be performed by the Commonwealth office would be the compilationand publication of details of trade, shipping, and postal returns suitable for local requirements. In the case of Victoria, evidently a good deal of consideration was given to the subject, because the reply from the Premier of that State was received only on the 18th of last month. The effect of that reply was that the State Government considered that the statistical officers of the various States should remain under the control of the States for purposes of the collection., tabulation, and publication of State statistics, the collection and tabulation to be carried out in a manner approved by, the Commonwealth bureau. Captain Evans, the Premier of Tasmania, takes practically the same view, as shown by his letter received on the 25th of last month.
– I do not dispute the views of the States Departments ; I merely say that the Commonwealth view has never been put forward.
– Captain Evans’ letter stated that, in the opinion of the Government Statist of Tasmania, the value of a central bureau would be rather that of direction and guidance in the collection of all matters common to State and Commonwealth statistics, so as to avoid, as far as possible, confusion and the expense of unnecessarily duplicating machinery. The Statist of Tasmania, according to the letter, was not aware of any part of the collection or compilation of necessary State statistics where aid could possibly be afforded by the officers of the central bureau. The letter pointed out that the local State bureau, being under the guidance of the Commonwealth bureau, could, as is now the case, prepare all abstracts of State statistics suitable and necessary for the more general form of statistics to be published from time to time by, the Commonwealth Statistician. As a rule, this correspondence, which was marked by that diplomacy that should! characterize such negotiations, reveals that the disposition of the States at present, at any rate, is not to surrender their Statistical Department. Under the circumstances, if the Government had brought down a Bill which clearly implied that they were going to ignore the existing States Departments, they would have been very badly advised. It was more politic to do what the Government have done, namely, introduce a Bill which has for its object the appointment of a Chief Statistical Officer, and the conferring on him certain powers in the collection and compilation of statistics for Commonwealth purposes. The Government recognise the existence of the States Departments, and desire to take advantage of the existence of those Departments. We feel that we ought not to add to the expense of the taxpayer, but rather ought to take advantage of existing institutions as far as possible; and the Bill makes provision in that direction. For that reason we provide that the Governor-General may come to arrangements with the Governor of such States as may be prepared to co-operate with us, to carry out the objects of the measure,and for the utilization of the services of that State Department to that end. I think every honorablesenatorwilladmit the manifest advantagesof such a bureau as that which is proposed,and that the Bill will secure the desiredresults with accuracy and economy. I ask honorable senators to pass the second reading, and take the Bill into Committee. The amendments foreshadowedby Senator Pulsford I can more appropriately deal with at a later stage ; but I think the honorable senator will find his intentions have already been carried out, if not in this Bill, atany rate in some other Commonwealth legislation with which this Bill is necessarily linked.
Original question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 and 2 agreed to.
Clause 3 postponed.
Clauses 4 to 7 agreed to.
Clause 8 -
– I suggest that the first word “ The” should be “ a.” We are not in this Bill providing for one census only, but for many censuses to be taken in the future. In the circumstances, the word “a” commends itself to my judgment, and it is used in other Acts.
– The census is always spoken of as “ the” census.
– The matter is not important, and if the Minister will not accept this little improvement in his Bill I shall not press it. However, I have a more important improvement to suggest in subclause 2. I move -
That the words “ a day appointed for that purpose by proclamation “ be left out, with a view to insert in lieu thereof the words “ the Sunday nearest to or occurring on March 31st.”
– That wouldtie us down.
– I think we ought to be tied down in such a matter. In dealing with statistics, it is desirable that we should be as accurate as possible, and accuracy in this matter is best obtained by fixing an exact date. I believe that an ex~ act date is invariably fixed in all other countries. I, therefore, submit the amendment with every confidence that it will be accepted by the Committee
– I hope that the Committee will not accept the amendment. During the discussion on this Bill, and at other times, reference has been made to the fact that in most countries the census is taken at the end of March, or at the beginning of April, in a year ending with 1 - such as 1901 and 191 1. But it does not necessarily follow that the countries of the world are committed to that particular time. A reference to the Acts will show that in most cases a special Census Act is passed in each country for each census. In some cases, although the Act passed appears, on the face of it, to make permanent provision for a census to be taken on a particular date, and at intervals of every ten years thereafter a special Act is still passed for the next census, and the previous legislation is ignored. The United States Census Act was passed, I think, in February, 1900, and provided that the census should be taken throughout the United States in that year. I am not certain that it specified any particular date. In Great Britain, Census Acts have been passed on more than one occasion, and the same thing applies to almost every other country. It is obvious that if anything like a uniform day were agreed upon throughout the different countries of the world, the Minister charged with the responsibility of administering this Bill would synchronize the Commonwealth census with the census taken in other countries. If, on the other hand, a number of the other countries of the world were to deviate from the particular date which Senator” Pulsford desires to see introduced into this Bill-
– And which is the date generally adopted.
– I do not know that it is, even in New South Wales.
– It is, only the day is named - the 31st March, which is a Sunday.
– That is just what I am pointing out - that a special Bill is passed for each census. It might be that in the next Bill brought in the time fixed for taking the census would be in the middle- of the year. It is. most desirable, in all the circumstances, to permit the utmost liberty of action * so “far as the administration is concerned, in order that, where it is shown to be desirable, we may be able to synchronize our census with the censuses taken in other parts of the world.
– The Minister has made a remark which shows the necessity for the amendment. He has said that the New South Wales Parliament might, on the next occasion when they are dealing with” the Census Bill, fix the middle’ of the year as’ the time for taking the census. I have referred to three of these Census Acts, and I find that the last Sunday in March has been invariably adopted in Great Britain. Because of that, the Colonies followed suit; but the Minister now says that there might be a change. A change might be brought about if the matter were left to be dealt with by an Executive act. The last Sunday in March is becoming recognised throughout the civilized world as the day on which the census should be taken. For that reason, and in order that we may clearly indicate that we intend to fall irc with the arrangement, the amendment should be accepted. Otherwise, we may have the Minister, for some reason of his own, yielding again to the desires of the States, and fixing some other period of the vear.
– I hope that Senator Pulsford will not press his amendment. The provisions of the Bill should not be made too rigid. Senator Millen said that it was becoming recognised throughout the civilized world that the 31st March should be the day for taking the census. There might be a conference of Statisticians held in Europe, at which it might be decided, for reasons of which we would not be aware, that the date for taking the census should be altered. We might then be requested by the Secretary of State for the Colonies to adopt the altered date. It will be admitted that it would be of great advantage if we were in a position to synchronize our census with that taken in ‘other countries. In such a case, if this amendment were agreed to, it would be necessary to pass a Census Act Amendment Bill.
– In, Canada the census is taken at the beginning of the year.
– We all recognise the advantage of having the -census taken at the same time throughout the different countries of the world. To enable that to be done, so far as we are concerned, the fixing of the date should be left to the Executive. If the particular date referred to in the amendment had been actually fixed by other countries as the date for taking the census, there would be no great objection to the amendment ; but in all the circumstances it is better to leave the fixing of the date to the Executive than to fix it absolutely in this Bill.
Senator PULSFORD (New South Wales). - I have not heard a single argument that has any weight against the amendment I have proposed. The reason why it should be accepted is that it would take the matter out of the control of the Minister. I have repeatedly pointed out that government by regulation “ has increased, is increasing, and ought to be diminished.” If Parliament has an opinion of its own on any subject, it should embody it in a Bill when opportunity offers. If some wonderful events were to occur, necessitating a change of date, there would be no difficulty in passing an amending Bill. I object to give even the purest of Ministries the power to decide important matters like this. It is the right of Parliament to fix the day when a census is to be collected.
– Surely the party element could not come into the matter.
– It might. In 3 9 r r there might be a Government in power who would feel that it would not suit them to have the census taken on the 31st March, and they might decide to take it at the end of June. It might affect the question of representation. I am aware that Ministers would prefer that the power which ought to be exercised by Parliament should be left to them. I protest very strongly against empowering Ministers to do that which Parliament ought to do itself. Therefore I ask the Committee to accept the amendment.
– I am sorry that I must distinctly dissent from the view of my colleague, Senator Pulsford. If we cannot trust a Government to fix a day on which a census shall be taken it is not fit’ to be trusted in anything. I cannot understand any one imagining that a Government would fix a day for a census merely for party purposes. I shall support the clause.
Clause agreed to.
Clauses 9 and 10 agreed to
Clause 11 -
Every occupier of a dwelling. . . .shall, to the best of his knowledge and belief, fill up and supply. . . all the particulars specified. . .
Penalty : Ten pounds.
– This is the first of the clauses imposing penalties. I direct attention to the fact that the penalty hera imposed is 100 per cent, heavier than the penalty imposed in the other Acts to which I referred in my second-reading speech. In the New South Wales Act the penalty is not exceeding £5. This clause makes it £10. It may be a matter of opinion what the penalties ought to be, but I am not in favour of drastic penalties. It may be said that this is a maximum, but the reply is that it gives an indication to the Judge as to Parliament’s view of the seriousness of the offence. If in one Act the Judge sees that the penalty is £5, and in another Act that the penalty is £io, he concludes that the offence for which the larger penalty is imposed is regarded by Parliament as being the more serious. If a penalty! of £5 is regarded as sufficient in Great Britain and New South Wales, if ought to be sufficient here. I move -
That the word “Ten,” line 4, be left out, with a view to insert in lieu thereof the word “ five.”
– In a machinery Bill of this character the principle which I adopt is to support the clauses unless some point of principle is involved I do not agree with Senator Millen that the amount of the penalty is an indication of the seriousness of the offence. When is mentioned instead of the object is to enable the Bench to deal with every case on its merits. Where an obvious mistake was made, or there was only a little carelessness, probably the Court would inflict a fine of £10. But I can conceive of cases where a fine of £100 would not be too much. Let me give an illustration. Suppose we had here, as in Belgium, an income tax law under which the amount of a man’s income tax was reduced in proportion to the number of children he had. Suppose that a man claimed a red’uction on the ground that he had ten children, when as a matter of fact he had only five. That would be a dishonest return intended to rob the Government. In such a case a heavy penalty would properly be imposed.
Senator MILLEN (New South Wales). - I have already shown that a corresponding section in the New South Wales Act imposes a penalty of £5 only. Why should we inflict a penalty of £10 under this clause? I ask the Committee to say that the amount is too high. The Minister might recognise the point, and meet me in the matter.
– I wish to point out that Senator Dobson’s father, of a large family would not be affected by ; this clause, but by clause 26, under which an offender would be subject to a penalty of £$0. This clause has nothing to do with false statements.
– It is most important that the public should recognise that it is their duty to assist the Department in compiling the census correctly. This clause provides that when the householders’ schedules have been distributed amongst the occupiers of dwellings, they shall do the work cast upon them correctly, and that if they fail to do so they shall be liable to a penalty of £,10. Some years ago in connexion with the census of 1 901 I know that in one town in the Commonwealth* it was reported that at three or four hotels the census papers were actually thrown out of the window, and the occupants declared that they would have nothing to do with them. When the collectors came round they had to entreat the occupants to fill up the papers, which they did in a very haphazard fashion, merely to comply with the form of the obligations cast upon them. It is as well that the public should be made to understand that when these papers are sent round the duty must be attended to properly. Some people at the~last census said that the papers were distributed merely for the purpose of providing work for civil servants. It is absolutely necessary that we should indicate to the public that it is necessary to obtain accurate information, and with that end in view the penalty of£10 is not too much.
Clause agreed to.
Clause 12 -
The particulars to be specified in the Householder’s Schedule shall include the particulars following : -
the name, sex, age, condition as to, and duration of, marriage, relation to head of the household, profession or occupation, sickness or infirmity, religion, education, and birthplace, and (where the person was born abroad) length of residence in Australia and nationality of every person ;
the material of the dwelling and the number of rooms contained therein;
any other prescribed matters.
– I think it is necessary to add some wordsto paragraph a, because, as it is now worded, the householder is really required to give the “ nationality of every person “ in the community. What we desire to know is the nationality of every person in the household on the night of the censusday. I move -
That after the word “person,” line11, the words “ who abode in such dwelling on thenight of the census day,” be inserted.
– I think that we should adhere as closely as possible to the form of words which are employed in clause 15. I propose to omit from that clause the words “on that night,” and I think it will be sufficient to insert in this clause the words “ abiding in the dwelling “ after the word “person.”
– I wish to move a prior amendment.
Amendment, by leave, withdrawn.
– I move -
That the word “ religion,” line 7, be left out.
– There is no harmin retaining the word, because under another clause the householder is not compelled to state his religion.
– If honorable senators will be patient, I shall point out where the harm is done.
– We cannot accept this amendment, because the religion of the people is taken all over the world.
– It is time that Australia led the way in this matter, as she has done in others. It is provided in section 116 of the Constitution that no recognition of any religion shall be made by the Commonwealth. Whv do we want statistics about religion? Why should we concern ourselves about the religion of thepeople, especially as we cannot secure a reliable return, because a subsequent clauseprovides that where a person has a conscientious objection to giving particulars about his religion, he need not give them. It will be useless tol provide in the censuspaper for particulars of religion, seeing that we shall have no power to compel them to be supplied. It’ is likely to cause a great deal of heart-burning. We have had a great deal of sectarian bitterness in the past, and I am sorry to see that it has not all died out yet.
– This will not raise sectarian bitterness.
– It all tends to keep up the sectarian feeling.
– The furnishing of these particulars in the census-paper will enable one sect to be continually pointing to the fact that they number so many persons in the State, while another has fewer followers. If it be necessary and desirable to obtain this information, as some honorable senators seem to think, then every householder should be .required to state his religion in the census-paper, otherwise the information which may be obtained, will be useless. There will be a large proportion of the people who will refuse to state their religion.
– Very few.
– I deplore the sectarian bitterness which is evident in some parts of the Commonwealth. I desire to do what I can to eliminate this feeling, and, as the Constitution provides that there shall be no Commonwealth recognition of any religion, I fail to see why we should provide for particulars of religion to be included in the census schedule. The Commonwealth is only interested in the social status and welfare of the people. Every particular in regard to their industrial condition is important, and should be included in the census paper, but from the Commonwealth stand-point it is of no importance to know the relative strength of any particular religious belief. I move this amendment so that in this Bill the Commonwealth shall not lend itself in the slightest degree to the perpetuation of religious and sectarian bitterness which is more prevalent than most of us would like to see it.
Amendment (by Senator Millen) proposed -
That after the word “ person,” line xi, the words “ abiding in the dwelling “ be inserted.
Senator GIVENS (Queensland). - I see no necessity to overload the Bill with this provision. The clause at the beginning provides that the particulars to be specified in the householders’ schedule shall include those set out, and the householder’s certi ficate is the form which requires to be filled up, indicating the number of persons, and so forth. Do we credit those who will have the administration of the Bill with any brains or common-sense at all? I am afraid the result will be that we shall have this Bill, which involves no principle, and might well be left to the parliamentary draftsman, made a shuttlecock of between the Houses, to the exclusion of other useful legislation.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 13 to 15 agreed to.
Amendment (by Senator Pulsford) proposed
That the following new clause be inserted : - “ 15A. The Statistician shall as soon as possible after a census or other enumeration day publish a statement showing the total population of each State and the aggregate of the Commonwealth on each census day.”
Senator KEATING (Tasmania- Honorary Minister). - I see no necessity for this proposed new clause. The whole object of the Bill is to have a census, and to provide that the result shall be made known to the public as soon as possible.
– The Minister seems determined to allow the Committee to do as little as possible, and to leave everything to the Minister in charge and the Statistician. I enter my protest against that sort of legislation. Parliament in such matters ought to come to a d’etermination, and insist upon its will being carried out.
Proposed new clause negatived.
Clause 16 -
The Statistician shall, subject to the regulations and the directions of the Minister, collect annually statistics in relation to all or any of the’ following matters. . . .
– In spite of my ill luck with other amendments, I desire to propose that population should be one of the matters dealt with under this clause. This seems to be about the most important point with which the Statistician will have to deal, and he will have to deal with it every year, as well as on special census and enumeration days. I move -
That the following new paragraph be inserted : - “ Population.”
Amendment agreed to.
– I move -
That after paragraph a the following paragraph be inserted : - “ Employment or non-employment.”
In the householders’ schedule, which I sup-, pose the Government will adopt, provision will be made for a statement as to whether the householder or those in the house on the day when the census is taken are in employment or are not employed. If this direction is given to the Statistician, I believe we shall have statistics compiled which will afford a very valuable indication as to the industrial state of the Commonwealth on a certain date.
– Paragraph a, “Vital, social, and industrial,” will cover what the honorable senator desires. I have before me specimen forms which set out the information obtained in the taking of the census. In the Western Australian form it is provided that the householder shall give the following information : -
E - if employer of labour;
O - if in business on one’s own account but not employing others for salary or wages ;
A - if relative assisting head of household in his business but not receiving salary or wages ;
W - if earning salary or wages; and add,
N - (except in cases of leave of absence) if out of work for more than a week prior to census.
Then there are directions given as to the occupation which the person is following, and in all cases it is necessary that he should state whether he is unemployed at the time the census is taken.
– There is nothing to compel the Statistician to tabulate that information.
– It will be collected and tabulated in accordance with clause 20.
– It never has been done in the States.
– A reference to the Victorian householders’ schedule will show that the same directions almost word for word are given as those which I have quoted from the Western Australian schedule. I remind honorable senators that what we are now dealing with is the collection of statistics, and I can assure them that the form adopted by the Commonwenlth will be as comprehensive in all details as the forms that have existed in any of the States.
Senator PEARCE (Western Australia). - The reason I have asked the Committee to accept my amendment is that, although the information may be secured in the householders’ schedule, it has never previously been tabulated in any of the States. Honorable senators may look through any of the year books which are published, and they will not find that they include any reference to the number of persons employed or unemployed at the time of the census. I desire to have a clear direction in the Bill that these statistics shall not only be collected, but that they shall be tabulated.
Amendment agreed to.
Amendment (by Senator Ptjlsford) agreed to -
That after paragraph c the following paragraph bt inserted : - “ Postal and telegraphic.”
Clause, as amended, agreed to.
Clauses 17 and 18 agreed1 to.
Clause 19 (Powers of entry and inspection).
– The power of entry given under this clause is an unlimited power. What is desired is that the officers should have power to enter for the purpose of discharging the duty imposed on them under the Act. It is not desired to give officers power to enter unnecessarily. I propose to preface the clause with words taken from the New South Wales Act, of which this clause purports to be a copy, as honorable senators will see from the marginal note. I move -
That the words “ For the purpose of making any inquiries or observations necessary for the proper carrying out of this Act,” be inserted at the commencement of the clause.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 20 (Publication of Statistics).
– Provision might be made for the publication of statistics collected under the Bill jointly with statistics collected by the States officials. In that way information could be given which otherwise we might not get.
– That could always be done by arrangement.
Clause agreed to.
Clauses 21 to 26 agreed to.
Clause 27 -
Subject to the postal regulations, all letters packets and telegrams for the purpose of carrying out this Act, sent to or by the Statistician or any enumerator or collector, shall be transmitted L> post or electric telegraph and delivered free of postage or charges if properly addressed and marked as prescribed by the postal regulations.
– I strongly object to this clause, and hope the Committee will decline to agree to it. At any rate, they should consider carefully what it means, and what it is likely to lead to. The subject of free postage and telegrams was thoroughly discussed in 1901, when we were dealing; with the Post and Telegraph Act. It was then decided by Parliament that from that time all postages and telegrams should be paid for by every person in the Commonwealth from the Governor-General downwards. The reason was that when the Post and Telegraph Department was taken over, it was found that there were very grave abuses in connexion with free postage on mail matter and free telegrams in all the States. The waste in some States was very great. Let me give an instance. In Queensland we had a weather bureau. The Meteorologist was at liberty to send free telegrams. The line used to be blocked da.v after day with telegrams about the weather, and it was afterwards found that such telegrams to the value of ^12,000 per annum had been sent over the lines free. In the Post and Telegraph Act we decided to make all Federal Departments pay for the use of the Post Office and of the telegraph lines. If, under this Bill, we make it plain to the officers that the Department has to pay for these services, they will be particularly careful that there is no extravagance in the use of the wires and of the Post Office. I could spend an hour in giving instances of the way in which the privilege of free telegrams and postage has been abused in the past. Since the Post and Telegraph Act was passed, an Act has slipped through in which free postage is allowed. I am sure that a protest would have been made against it if it had been noticed. To show what consequences flow from such a slip, I may say that only a few weeks ago an application! was made to the Federal Government by one of the States for the right to pass through the post free sets of papers in reference to local government. It came under my notice, and I pointed out the principle adopted in the Post and Tele graph Act. I was at once reminded, however, that the Federal Government was sending electoral papers through- the post free. That showed the bad result of allowing a good principle to be infringed upon. I trust that the Committee will not permit this vicious principle to b-; adopted in the Bill under consideration.
– We shall ‘not fight the matter.
Clause 28 agreed to.
Proposed clause 3 (Definitions).
– I move -
That the following words be added, “ Census means an account of the population of the Commonwealth.”
I think it is requisite that that definition should be put in.
– I would point out to Sena- tor Pulsford tEat it is a very dangerous thing to define in a Bill a word which is very clearly and distinctly understood; the general principle being that in the construction of Acts the ordinary meaning of a word is taken. It is only when the ordinary meaning of a word is limited or extended1 that a definition is necessary. I ask the honorable senator not to press his amendment, which is superfluous, and also dangerous.
– I think the amendment would be an ‘improvement in the Bill, but I will not press it if the Minister isnot inclined to accept it.
Clause agreed to.
Clause 12 reconsidered, consequentially amended, and agreed to.
Bil] reported with amendments.
Motion (by Senator Playford) proposed -
That the Senate do now adjourn.
– Early in the evening I made the statement that the Conference of Statisticians at Hobart did not consider an .alternativescheme under which the Federation would’ have control of the whole machinery for collecting statistics. The Minister - no doubt in good faith - contradicted that statement ; but I think that the following passage in the report will show that it was correct. The Statisticians say -
Having devoted some considerable thought to the important matter of the harmonious relationship between the Central Statistical Bureau of the Commonwealth, soon to be established by special legislation, and the several independent States bureaux - and so on. That passage shows that the Statisticians went to Hobart with the preconceived opinion that there should be a -central bureau, and that the State bureaux should be maintained ; and that no other question was considered by them.
Question resolved in the affirmative.
Senate adjourned at 11.27 P-m-
Cite as: Australia, Senate, Debates, 2 November 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19051102_senate_2_28/>.