3rd Parliament · 3rd Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the Vice-President ofthe Executive Council, without notice, the following questions : -
I do not know whether the Minister is in a position to answer the questions now, but if not I shall give notice of them.
– I think that I have already answered the questions, with one exception, and that is the one asking for information as to coastal cargo and passengers. That is a matter that does not come within the jurisdiction of the Trade and Customs Department, and the only means of obtaining the information is by application to the shipping companies. It is not likely that they would undertake the prodigiouslabour necessary to supply it, particularly in view of circumstances which may be imagined. As regards the advisableness of insertinga clause for the purpose in the Navigation Bill, if the honorable member will formulate and circulate an amendment, I shall then tell him the attitude of the Government in reference to it.
– I shall be glad if the Minister will answer, one way or the other, the question, “ Will the Government consider the desirableness of taking means to procure such information through the Navigation Bill?”
– Why not ask, “ Will they do so?”
– Very well ; I ask the direct question.
– I have no intention of doing so; but if the honorable senator will circulate an amendment, I shall be very glad to consider it.
– I beg to ask the
Minister representing the PostmasterGeneral, without notice, the following questions -
– Since the last meeting of the Senate, the honorable senator has been courteous enough to inform me that he intended to ask these questions to-day. I have obtained from the Department the following replies : -
That will be next week.
asked the Minister of Home Affairs, upon notice. -
– The answers to the honorable senator’s questions are as follow : -
Were the regulations issued by the Public Service Commissioner under the Public Service Act, and bearing date the 29th August, 1907 approved by the Governor-General in Council ?
If so, why was not that fact, and the date of such approval, stated upon the said regulations when published?
– The answer to the honorable senator’s questions is as follows : - 1 and 2. The regulations referred to were merely a reprint of regulations which had received the Governor-General’s approval on varying dates between December, 1902, and August. 1907. There was, therefore, no necessity to indicate the dates of approval, these having already been publicly notified by statutory rule or otherwise.
What was the position, at date of last advices, of the legal proceedings in regard to the Laing-Croker Mail Contract?
What was the date of such advices?
– The Crown Solicitor has furnished the following information : -
asked the VicePresident of the Executive Council, upon notice -
– The Commonwealth Crown Solicitor has supplied the following information : -
Laing and Sons Limited and Barclay and Co. Limited, guarantors; and the actions are proceeding.
asked the Minister of
Home Affairs, upon notice- -
How many members of the Defence Forces have during the past two years been reprimanded or punished for being intemperate, distinguishing, if possible, the intemperance caused from drink obtained in the canteens and outside?
– The answer to the honorable senator’s questions is as follows : -
The Minister is not responsible for the statements referred to. The expression “ worthless” is not a departmental term. With regard to inefficients, the Minister will furnish a return showing their number, and any departmental information obtainable with regard to delinquencies being the result of drink.
asked the Minister of Home Affairs, upon notice -
– The Minister of Defence has forwarded to me the following replies to the honorable senator’s questions : -
asked the VicePresident of the Executive Council, upon notice -
– The information is being obtained.
Senator KEATING laid upon the table the following papers -
Regulations for the Naval Forces of the Commonwealth - Amendment of Regulation 31. - Statutory Rules. 1908, No. 103.
Financial and Allowance Regulations for the Naval Forces of the Commonwealth - Amendment of Regulations 49A and 50 ; and New Regulation 78A. Statutory Rules 1908, No. 104.
Financial and Allowance Regulations for the Naval Forces of the Commonwealth - Amendment of Regulation 50. - Statutory Rules 1908, No. 105.
Regulations (Provisional) for the Military Forces of the Commonwealth - Amendment Heading preceding paragraph 563. - Statutory Rules 1908, No. 106..
In Committee (Consideration resumed from 2nd October, vide page 718).
Clause 5 - “ Boilers and machinery,’’ includes engines and everything connected therewith employed in propelling a steam-ship, and every description of machinery vised on a ship for the purposes of the ship or her cargo, and all other apparatus or things attached to or connected therewith or used with reference to any engine, or under the care of the engineer : “ Equipment “ includes boats, tackle, pumps, apparel, furniture, life-saving appliances of every description, spars, masts, rigging, and sails, fog signals, lights and signals of distress, and every thing or article belonging to or to be used in connexion with, or necessary for the navigation and safety of, the ship, including apparatus for preventing or extinguishing fires, buckets, compasses, axes, lanterns, and loading and discharging gear and apparatus of all kinds : “Owner” includes the manager or secretary of any company or body corporate or any person to whom the whole or a part of a ship belongs : “ Officer “ in relation to a ship means the master, mates, and engineers of the ship : “ Seaman “ means every person employed or engaged in any capacity on board a ship except masters, pilots, and apprentices and persons temporarily employed on any ship in port : “ Apprentice “ means a person bound by indenture for the sea service to a ship-owner : “Desertion” means the absence of a seaman or apprentice from his ship without leave for a period of forty-eight hours without lawful cause or excuse, or any unlawful departure from his ship with the intention of not returning thereto : “Discharge” means the certificate of the discharge of a seaman from the last ship in which he. served : “ Passenger “ means any person other than the master and crew or the owner, his family or servants carried on board a ship with the knowledge or consent of the owner, agent, or master thereof.
On which Senator Stewart had moved -
That after the word “includes,” line 1, the following words be inserted, ‘’ every description of machinery and apparatus required for the working of a ship or her cargo.”
– I ask leave to withdraw my amendment with a view to submitting another which I have prepared, and which has been circulated amongst honorable senators.
Amendment, by leave, withdrawn.
That all the words from “ engines,” line 1, to “ engineer,” line 8, inclusive, be left out with a view to insert in lieu thereof the words “every description of machinery and apparatus used on a ship for the purposes of the ship or her cargo.”
I move this amendment in the first place in the interests of brevity and simplicity, and in the second place because I think that the definition I suggest is more comprehensive and all-embracing than that in the Bill. If honorable senators will examine the definition given in the Bill, they will find that there is a. great deal of needless repetition. Many words are used which I regard as merely surplusage. A great deal too much detail is entered into. We have evidence every day in the Courts of the way in which Acts of Parliament are interpreted, and of the undesirableness of trying to express too minutely the intention of the Legislature. The definition I suggest is short, comprehensive, and clear. It is likely to be much more easily understood by the average man than that contained in the Bill. It compresses into two lines what is scattered over seven linesin the Bill, and I think it carries out what is intended more effectively. It embraces everything necessary for carrying on the ordinary business of the ship so far as its navigation and the loading and unloading of its cargo are concerned.
– Does it include an ice machine?
– It includes everything required for the purposes of the ship.
– An ice machine is not necessary for the purposes of the ship.
– It may or may not be, but I point out to those who raise that objection that the definition in the Bill does not particularly refer to an ice machine. The object of the framers of the measure no doubt was to bring within this definition every description of machinery used on a ship for the purposes of the ship or her cargo. I have tried to provide for that in briefer and clearer terms than those which are used in the Bill. I hope that the Committee will support the amendment.
Senator Sir JOSIAH SYMON (South Australia) [2.51.]. - Every one must sympathize with Senator Stewart in his desire to shorten and make a little more lucid this exceedingly cumbrous and unnecessary definition. The draftsman of the measure appears to have suffered from a kind of definition mania. He has consequently used a, great deal of language which not merely confuses the meaning and intent of the provision, but which, if adopted, will probably give rise to a good deal of controversy, and, possibly, to more litigation than is desirable. There is no doubt that the more we multiply the terms employed in the definition clause of any Bill, the more we open the door to contention. But I would suggest that this clause may be further shortened by entirely omitting the definition of “ boilers and machinery.” It is not required. No such definition is contained in the Imperial Merchant Shipping Act. “ Boilers and machinery,” the clause says.’” includes engines and everything connected therewith employed in propelling a steam-ship, and every description of machinery used on ai ship for the purpose of the ship or her cargo.” All those words refer simply to “boilers and machinery.”
– The term “boilers and machinery” means boilers and machinery. ‘
– That is all that it does mean. In this definition a. great deal of unnecessary verbiage is used. Senator Stewart’s amendment is very much better, because it is shorter, and the only object of any definition is to make the position so clear that anybody may be able readily to grasp it. Senator Stewart’s proposal sets out that -
Boilers and machinery includes every description of machinery and apparatus used on a ship -
As the Bill is applicable only to ships it is unnecessary to say - for the purposes of the ship or her cargo.
The machinery must be used for the purpose either of the one or the other, unless there is some apparatus aboard for hanging the passengers. My honorable friend will see that the words “ of machinery and apparatus “ simply refer to boilers and machinery. There is no necessity for the definition. ‘ The term “ boilers and machinery “ is ample to cover everything, and it would be much better to follow the lines of the Imperial Merchant Shipping Act, and to omit the definition entirely.
Senator BEST (Victoria- Vice-President honorable senators to be very careful inn dealing with this amendment. It is possible that in endeavouring to be terse - exceedingly terse - we may bring about a most undesirable result. I do not for a moment suggest that we should use superfluous words, and in this case I do not think that superfluous words have been used. I have had an opportunity of discussing thismatter with both the draftsmen of theBill in the light of what Senator Stewart stated on Friday last, and I desire to say that this definition has been inserted after very great thought and care, and having regard to decisions which have already been . given upon this subject. Honorable senators need to be very careful not to consider the definition of “boilers and machinery “ apart from the subsequent definition of “ equipment.” Each has been drawn in such a way as to possess a definite and separate meaning. But what is all-important is that the Bill has been framed upon the basis of this definitionSome of the clauses refer to “ boilers and machinery,” whilst others refer to “equipment “ in each case with the proper meaning. The first objection which I would urge against Senator Stewart’s proposal is that it runs right up against and overlaps the definition of “ equipment,” and must result in conflict. In dealing with machinery, it must be borne in mind that u boilers and machinery “ not only include engines and every description of machinery used on a ship for the purposes of the ship or her cargo, but all other things “ connected therewith or used with reference to any engine or under the care of the engineer.” I invite the special attention of honorable senators to the concluding words of the definition, “ under the care of the engineer.” They cover refrigerating machinery, hydraulic machinery, steam pumps, steering engines, wireless telegraphy apparatus, and many other things. These are appliances which are “ under the care of the engineer,” but which are not necessarily used in the propelling of the ship. Speaking roughly, the definition of “ boilers and machinery “ refers to apparatus which is under the control of the engineer, whilst the definition of “equipment ‘ ‘ to some extent covers those things which are practically under the direction of the carpenter. Of course, I am speaking in a very general way in this connexion. . We have throughout the Bill used the terms “boilers and machinery” and “equipment” having regard to the definitions. The first clause to which I direct attention is 187, which provides that the Minister may prescribe the manner in which and the persons by whom surveys and inspections shall be made, the equipment to be carried by each class of ship, and the conditions under which certificates pf survey and equipment may be granted. The word “ equipment “ is . there used .as having regard to the definition. That is to say the Bill is framed on the basis of the definitions set out in the clause under consideration. The first effect of Senator Stewart’s amendment if carried would be to cause the definitions of “ boilers and machinery “ and “ equipment “ to overlap and would result in most serious confusion. Take clause 188, which provides that a shipowner aggrieved by a refusal to grant a certificate of survey or equipment may appeal to a Court of Marine Inquiry which mayorder any certificate of survey or equipment to be granted or refused. Then clause 195 provides that the Minister may for the purpose of survey require a steam-ship to be taken into dock, or to have her cargo discharged, or her boilers or machinery opened out, or her fittings removed as far as is reasonably necessary. Then in clause 204 it is provided that a ship shall not be deemed seaworthy unless she is in a fit state as to condition of hull and equipment, boilers and machinery, stowage of ballast or cargo, etc. These are but a few clauses that come immediately under my notice. I am informed by those most capable of advising me on the subject that the Bill having been constructed on the basis of the definitions, which have been carefully prepared having regard to decisions in cases, it is very difficult to say what the effect of Senator Stewart’s amendment would be; but that certainly the definitions of “equipment” and of “boilers ‘and machinery,” amended as proposed by the honorable senator, would result in overlapping and most unfortunate confusion. I know that my honorable friend’s desire is to do what is right, but it is scarcely probable that any of us have -given such a close and. technical, and I will add such learned, attention to these difficult matters, as the two draftsmen of the Bill have done. I give the Committee the benefit ot the advice that has been forwarded to me, and I urge that it is quite a false idea that such extreme terseness as appears to commend itself so suddenly to some hon orable senators would result in this definition being made clearer. On the contrary it would be likely to result in serious confusion and possibly in litigation, which, I am sure, we all desire to avoid.
– Can the Minister refer us to any other clauses?
– I have picked out a few which I noticed in glancing hastily at the Bill. There is no substantial reason why the definition should be altered. It appeals to me as being most clear.
– Do I understand that some of the phraseology in this definition is taken from decided cases ?
– I am advised that the phraseology is the result of decided cases.
– Will my honorable friend mention one ? I do not think that any decided cases require us to make a definition as confused as possible.
– When we talk of boilers and machinery it is very difficult, unless something is said about apparatus, to distinguish between them. It is having regard to such considerations that the definition appears in its present form.
– If anything was wanting to show how utterly useless these definitions are, it has been furnished by the references to the Bill made by the Vice-President of the Executive Council. He has referred us to clause 187. That clause says that the regulations may prescribe the equipment. That is to say, the equipment may bp as prescribed. Anything may be prescribed.
– That cannot be intended. Look at what equipment means.
– The definition says that equipment includes “ boats, tackle, pumps, apparel, furniture, lifesaving appliances,” and so forth. So that clause 187 shows that the definition is entirely unnecessary. The Minister is given power to prescribe what the equipment shall be.
.- I do not think that any of us would feel confident as to the desirableness of the definition either as it stands or altered as Senator Stewart suggests; but I venture to say that the Vice-President of the Executive Council has not made out a strong case - even assuming that he has one. He has referred us to certain clauses. First, he referred us to clause 187. We are dealing with the definition of boilers and machinery. But in that clause the word- “equipment” occurs. The Minister said that if we made the amendment proposed by Senator Stewart, we should lead to confusion as between the meaning of “ boilers and machinery,” and “equipment.” Thai in itself is not an argument why we should not agree to Senator Stewart’s definition of boilers and machinery, because I understand that he intends to propose an improved definition of “equipment.” But it is better for vis to confine our attention to the amendment under consideration. The Vice-President of the Executive Council called attention to several clauses. Clause 195 is not in any way affected by the definition. The essential words in it are not “ boilers and machinery,” but “ boilers or machinery “ which is quite a different’ matter. Whichever definition we adopt would not be in any way applicable to clause 195. The next clause mentioned was 204, which deals with the seaworthiness of ships. I venture to say that that clause is not affected in the least degree by any defini-tions. If it is read intelligently no definition is wanted for “boiler’s and machinery” or for “equipment.” I think that the Minister will agree with me that the value of a definition consists in its application to certain clauses, thereby enabling the public to understand what is meant by them. If that be so, he has made out no case at all. While he was speaking, I was hunting through the Bill to see what other clauses the definition could apply to. I find that clause 406 empowers the Minister to make an inspection of boilers and machinery and equipment. I do not think that this definition is wanted for the purposes of that clause. Nor do I think the Minister will urge that, in order to enable the Minister to carry out the powers conferred upon him, we need a definition of boilers and machinery, or equipment. The only other clause I found in my hunt was clause 417, and to that I offer precisely the same criticism. It empowers the Governor-General to make regulations dealing with the whole question of ships and appliances. Surely no one can say that this definition is necessary for the purposes of that clause. I shall support the omission of the definition, and, if that is not agreed to, the amendment of Senator Stewart.
– I must express my surprise that the Minister did not receive the amend ment in a somewhat different spirit. I assume that every one here is desirous of making the Bill .as simple as possible, but the one argument which the Minister has used has been that the draftsman has prepared the Bill, and we must not lay violent hands upon his work. I believe that the Committee is prepared to be convinced by argument, but not crushed by authority, and even the work of the draftsman ought not to be allowed to sway our votes against our judgment. I believe that the Minister said .that, in our definitions, it was not desirable to duplicate or overlap. The clauses which he has presented to us certainly do that. If we take the provision dealing with equipment, it is obvious that it is made 10 include machinery, because it is set out that “equipment” includes - every thing or article belonging to or to be used in connexion with or necessary for the navigation and safety of the ship.
Surely that covers boilers and machinery.
– Certainly not.
– If “every thing” does not include .everything, what does it include ?
– Read the context.
– I have done so. I submit that it also covers all that is covered by “ boilers and machinery.” The Minister may dissent from that view, but I appeal to the common sense of honorable senators.
– It is regulated by the doctrine of ejusdem generis.
– If we are to accept the work of the draftsman, let me refer honorable senators to clause 406, which reads -
The Minister or any person authorized by him may -
go on board any ship at any time and inspect the null, boilers, and machinery, equipments, life-saving appliances, boats, compasses, signals, or any article on board or connected with the ship.
The clause refers to equipments, and the definition of “equipment” includes the very things which are enumerated in that provision. If it is a sample of the other clauses, we ‘do not require a definition of equipment at all. Surely we do not want to overload the Bill. I trust that the Committee will approve of the amendment of Senator Stewart, with possibly a further amendment.
Senator DE LARGIE (Western Austra that there are other persons than the draftsman of the Bill to be recognised in connexion with this definition. It was laid before the Navigation Commission by a gentleman who, I think, is a recognised authority on such questions. I refer to Mr. James Shirra, Chief Engineer - Surveyor and Examiner in Steam to the Navigation Department of New South Wales.
– Did he SUpply this definition?
– He drafted the definition, and on his authority- the Navigation Commission approved of it. Therefore, so far as authority goes, we have every reason, I think, to stand by it.
– The honorable senator ought to add that the draftsman misapplied the definition.
-I do not think so. I cannot see any difference between the definition in its present form and the one which that gentleman recommended.
Senator ST. LEDGER (Queensland) £3.20]. - In the Merchant Shipping Act of 1894 no attempt was made to define “ boilers and machinery “ or “equipment,” nor do I believe that such an attempt was made in framing the New Zealand Act. That would to some extent meet the argument of Senator de Largie, because, although a high authority in New South Wales has submitted a definition, it is equally clear that in England in 1894, and also in New Zealand in 1903, the question of definition must have engaged the consideration of both the draftsmen and those who were responsible for the submission of the measures to the Parliament. In each case it was deemed unnecessary by those persons to define the words. It will be remembered that the New Zealand Bill of 1903 received careful consideration from the Home authorities. It was carefully inquired into in both countries. Surely the want of evidence for the change as well as of precedent is entirely on our side of the issue? I suppose that there is no country in the world which has a greater interest in having cconcise definitions in its Merchant Shipping Act than has Great Britain. Neither in the Act of 1894, nor in the amending Act of 1906, was an attempt made to define these particular words. It seems that the authorities were not asked by any Royal Commission or draftsman to submit any definition. In 1903 the New Zealand Shipping Bill underwent the same close examination, and again the authorities refused to make any definition. There is no more fruitful source of litigation than unnecessary defini-. tions.
– I do not think that any argument has been advanced to show that we should alter the definition. No one has attempted to show that if the words are retained any misunderstanding may ariseout of them. I do not think that, as a rule, the legal profession can be accused of brevity. Some honorable senators are always anxious to make amendments,- and ifthey cannot assign substantial reasons they submit imaginary reasons. If Senators St. Ledger, Symon, and Clemons had been about when the ten commandments were, being formulated, probably they would have objected to the frequent use of the expression “Thou shalt not,” and urged that it was quite sufficient to use the words once. If no honorable senator can indicate where an injury or a misunderstanding or a. difficulty is likely to arise out of the definition, it will be quite safe to leave it as it is.
Senator Sir JOSIAH SYMON (South Australia) [3.23]. - Senator McGregor cannot have been listening to the discussion if he says that no possibility of difficulty has been pointed out, because two cases have been suggested very plainly. Senator Millen, for instance, pointed out the possibility of difficulty arising out of the conflict between this definition and clause 406.
– There is no conflict ; it is only a repetition.
– It is not a repetition, but a conflict.
– Surely my honorable friend does not say tthat there is a conflict? ‘
– I have made that statement, and I adhere to it. A few moments ago my honorable friend told the Committee that we were not to lay hands upon the definition, because the draftsmen had solemnly founded their draft of the Bill on it, and when Senator Millen points to a clause which contains the words “equipment” and “boilers and machinery,” and in which the draftsmen have thrown the definition overboard-
– No, no.
– Why does he not content himself with the use of the word “equipment” instead of repeating the reference to boats, lifesaving appliances, and so forth? The object of a definition is to shorten an Act. I may say that the draftsmen do not deserve the high encomiums paid them by the Vice-President of the Executive Council, when, instead of using the word” equipment “ after a definition of it has been given, they repeat the elements of the definition over again. It is our duty to criticise the Bill as presented to us to the best of our ability, and in this matter the draftsmen are our servants. All draftsmen will plead guilty to a fondness for their own offspring. They naturally prefer their own phraseology.
Senatorde Largie. - The honorable senator should not forget that this definition was recommended by the gentleman to whom I have referred. He enumerated these various machines.
– Just so. I have no doubt that he is a perfectly competent engineer, but we are dealing now with the work of draftsmen, and not of an engineer. It is the wish of every member of the Committee that the Bill shall be clear and efficient. Senator Stewart’s amendment has been designed with that view. I have said that I think it would be very much better to leave this so-called definition out altogether. Senator Millen has referred to clause 406”, and in addition, Senator Clemons has referred us to clause 195, where the phrase “ boilers or machinery “ is used. In that case, the definition of “ boilers and machinery “ would not apply, and we are left to depend on the ordinary English meaning of the term. When the clause comes to be interpreted, there may be argument as to whether the word “or” is not to be read as conjunctive so as to get the phrase “ boilers or machinery “ within the definition with which we are dealing. In my view “ boilers or machinery” and “boilers and machinery “ have perfectly clear meanings. If we left the word “machinery” unrestricted, I should like any one to tell me what there is on board a ship in the nature of machinery that would be excluded. It is possible that, in adopting the definition proposed, we may really restrict the interpretation. .
– Is it not a legal maxim that whereyou particularize, what is not particularized is presumed to be excluded ?
– That is the legal presumption, and that is what constitutes the danger. When you enumerate things there is a danger that you may restrict your definition. I put it to the Vice-President of the Executive Council whether, in this definition of boilers and machinery, and the use of the subsequent word, on the principle of ejusdem generis, if it applies, we may not be restricting instead of enlarging the definition ? Clause 195 provides that -
The Minister may at any time, for the purpose of survey, require a steam-ship, at the expense of her owner, to be taken into dock or to have her cargo discharged or her boilers or machinery opened out.
If we had to define the meaning of “ boilers or machinery,” the definition before the Committee would not apply, and? yet nobody canmisunderstand the meaning of “boilers or machinery.” There is no more difficulty in arriving at the meaning of “boilers and machinery,” and the ordinary meaning of the word includes everything referred to in the definition. Why should it be necessary to include the words “ employed in propelling a steam-ship “ as a qualification of the word “engine”?
– Because there may be engines on the ship which are not used for propulsion.
– But they would be included under the word “engine.” Donkey engines, or engines used in generating electricity would be covered by “machinery.” The words “for the purposes of the ship or her cargo, and all other apparatus or things attached to or connected therewith,” are surely surplusage and redundancy which may lead to confusion, and, as Senator Givens has pointed out, to restriction.
– Under this definition, if an electric fan were out of order, the ship might be declared to be unseaworthy.
– We might very well eliminate this definition altogether. I would ask the Vice-President of the Executive Council whether there is anything which this definition includes which he would not consider as fairly within the ordinary meaning of the English word “ machinery “ ?
– I do not think that in the discussion which has taken place the Committee has done itself justice. The objections taken to the defini- tion of “boilers and machinery” are feeble. I t cannot be denied that this definition has been prepared with care, and, as Senator de Largie has been good enough to point out, with the assistance of an acknowledged expert in these matters. Mr. Shirra is an acknowledged authority in New South Wales, and he gave his advice as to what should be included in this definition.
– He has had the working of the New South Wales Act.
– The two eminent draftsmen to whom I have referred have had the benefit of Mr. Shirra’s able assistance, and, in addition, let me say that the Navigation Commission considered and approved of this definition. That is the first recommendation of the definition as it stands. What are the objections urged against it? The only objection so far urged is that in the opinion of some honorable senators the definition is too long, that it might be shortened with advantage, and that too much is included in it.
– We do not say that too much is included in it, but that there is included in the ordinary meaning of ‘ ‘ machinery ‘ ‘ everything required, and that the definition in the Bill may be restrictive.
– The honorable senator ignores the fact that the draftsmen to whom I have referred and Mr. Shirra must have had some definite object in specifically including the machinery and other things specially mentioned in this definition.
– Would the honorable senator read what Mr. Shirra had to say?
- Senator de Largie did so.
– I said that he had approved of this definition.
– The honorable senator will find what he asks for in the answer to question 16354 of the evidence given before the Navigation Commission.
– Mr. Shirra is a man of great experience, and I have given honorable senators the assurance that the draftsmen of the Bill considered this definition with great care.
– Mr. Shirra was not asked for a definition as applying to the clause of this Bill.
– They were not then in existence.
– They were in existence. The honorable senator forgets that the Bill was referred to the Navigation Commission. I ask honorable senators to remember, first of all, that this definition is recommended by high authority.
– What authority? Mr. Shirra may be an excellent engineer, but that does not constitute him an authority on the drafting of an Act of Parliament.
– The interjection surprises me. I have said that he was consulted by the two able and experienced draftsmen to whom I have referred, and that in framing this definition they had regard for the advice given by Mr. Shirra. I have further said thatthis definition met with the approval of the Navigation Commission, who accepted a certain responsibility in approving of it. That is the first recommendation for the definition as it stands. I have said that the only objection urged against it so far is that there is some verbiage which might be omitted. It is most desirable, and indeed vital, that a. sharp distinction should be drawn between “ boilers and machinery “ and “equipment.” Boilers and machinery would be subject to the inspection of the engineer inspector, whilst equipment would be subject to the inspection of the shipwright inspector - a man of entirely different qualifications. These definitions have been designed to keep the terms to which I have referred separate and distinct. I remind honorable senators that when this definition says that “ boilers and machinery “ includes soandso that does not mean that the interpretation is to be confined to the words here used. What it means is that the term “ boilers and machinery “ shall include the things set forth in this definition, but it may include a hundred or more other things.
– The honororable senator might include the captain within the definition.
– Senator Symon is as well aware as I am that this definition is in the proper form. It is really a direction to the Court in interpreting the measure that “ boilers and machinery “ must be held to include certain things, whilst it is left open to the Court to say whether the term does not also include other things.
– It is a well known legal maxim that the inclusion of one thing is the exclusion of others.
– But the honorable senator must know that he is misapplying the maxim. I wish honorable senators to bear that in mind. I am surprised that Senator Symon should be found supporting the third objection which I have raised. But Senator Millen has calmly told the Committee that the definitions of “boilers and machinery “ and “equipment” overlap each other. Of course, I can quite understand the honorable senator being misled in that way, but Senator Symon - if he will forgive me for saying so - would scarcely advise a client to that effect.
– Will the VicePresident of the Executive Council close his eyes for a moment, and say under what definition pumps would be included?
– They would come under the definition of “ equipment.”
SenatorClemons. - Would they not be included in “machinery”?
– Not necessarily. It would entirely depend upon the character of the pump. A pump which was associated with machinery would undoubtedly be included under machinery, but an ordinary hand pump would not.
– Is not a pump, machinery?
– Certainly not. The definition of “ equipment “ reads - “ Equipment “ includes boats, tackle,pumps, apparel, furniture, life-saving appliances of every description, spars, masts, rigging, and sails’, fog signals, lights and signals of distress
Having enumerated these articles, it goes on to say - and every thing or article belonging to or to be used in connexion with, or necessary for the navigation and safety of, the ship, &c.
In other words, it includes other things of the same class.
– “ Boilers and machinery “ are declared to include “engines and everything connected therewith employed in propelling a steam-ship and every description of machinery used on a ship for the purposes of the ship.” Would not a pump come under that definition?
– Some pumps might, others might not.
– Tell us some that might not.
– A pump that was connected or associated with machinery would undoubtedly come under that definition, but an ordinary hand pump would come under the definition of “ equipment.”
– A pump in itself is a machine.
– The only other objection which has been urged by Senator Symon is that the draftsman is blamable, because in exercising excessive caution he has employed more words than are necessary. The honorable senator has drawn attention to clause 406, where the term “ boilers and machinery “ isused in conjunction with -
Equipments, life-saving appliances, boats, compasses, signals, or any article on board or connected with the ship.
– When we come to deal with that clause, will the Vice-President of the Executive Council agree to the striking out of those words?
– That is thepoint to which I was coming. I can quite understand the honorable senator’s objection to clause 406, and unless I am satisfied that there is some special reason for the retention of the words used in that provision, it may be desirable to alter them. But I do not commit myself to the adoption of that course at the present juncture. The whole of the objections taken by honorable senators opposite are totally irrelevant to the present definition.
– Look at clause 204.
– For the life of me, I cannot understand my honorable friend. He knows that the term “boilers and machinery “ is intended to include certain other articles.
– Then the definition will not apply to clause 204?
– Undoubtedly, it will. Will my honorable friend be good enough to remember that this definition is a declaration of the English law?
– If we apply it to clause 204, we shall find that a ship maybe deemed unseaworthy because a trifling article like a pump or an electric fan is out of order.
– The honorable senator is not justified in assuming that the question of the seaworthiness or otherwise of vessels will be determined by lunatics. It is laughable to suggest that, because some trifling machine was out of order a ship would be deemed unseaworthy.
– But the Bill declares that it is so.
– If we retain the definition in its present form we shall soon smash up all our maritime interests.
– I ask my honorable friend whether there is anything contained in the definition of “machinery” which ought not to be included?
– What is it?
– To declare that because an electric fan or a small pump is out of order a ship shall be deemed unseaworthy is to make the Bill a farce.
– I ask my honorable friend to look at the definition, and tell me anything contained therein which ought not to be included. He desires that the definition of “boilers and machinery” should be entirely excluded from the Bill. I ask him to specify anything included in that definition which would not be covered by the measure if there were no definition.
– An electric fan.
– Is that all?
– By no means.
– There may be reasons why even electric fans should be included.
– Yes. Is it not desirable that care should be exercised regarding the use of those fans?
– The Vice-President of the Executive Council has suddenly found some virtue in the suggestion of Senator de Largie.
- Senator Clemons has urged that because an electric fan might be out of order–
– I say that, under this definition, if an electric fan were out of order upon a vessel, she would be deemed to be unseaworthy.
– Then I entirely differ from my honorable friend. The administration of this Bill, we must presume, will be in the hands of men who are reasonably endowed with their senses. The dominant duty of the inspector who passes any vessel will be to determine whether or not she is seaworthy, and for that purpose he will have to ascertain whether her machinery is in fair working order. It is absurd to suggest that because an electric fan on board was out of order, a vessel would be deemed to be unseaworthy.
– Will the VicePresident of the Executive Council explain what the words of the definition, “ used on a ship for the purposes of the ship,” mean?
– There is everything to commend the definition, and no reason has been advanced why it should be amended.
– The Government have acted wisely in making a departure from the form laid down in the Imperial Merchant Shipping Act, for the purpose of shortening this Bill. The absence of a definition in the Merchant Shipping Act necessitates the employment of certain words over and over again.
– Will the honorable senator give us an instance of that ?
– Certainly. Section 272 of that Act, which deals with the mode and declaration of survey, affords an excellent illustration. It states, amongst other things -
The declaration of the shipwright’s surveyor shall contain statements of the following particulars : -
– That section of the Imperial Merchant Shipping Act reads very much like clause 406 of this Bill..
– No. Clause 406 does not contain half the language that is employed in the section to which I have directed attention. I think that there is wisdom in having two definitions, the one for . “ boilers and machinery,” and the other for “equipment.” The matters mentioned in the definition under consideration are matters of survey by the engineer surveyors. The matters relating to equipment are subject not only to survey’, but to inspection. The certificate that is given is one of inspection, which is carried out by the shipwright surveyors.
– It is a pity that the honorable senator does not stick to the recommendations as to the definition.
– We have done that. There was a definition in the first Bill which was enlarged by the Commission to include the inspection of deck machinery as well as propelling machinery. The first question to be considered is - Is it a convenience to those who will have to work under this measure when it becomes an Act of Parliament, to be able to turn to the definition section and see there what the term “boilers and machinery” means? They will see the meaning there, instead of having to read through the different sections.
– Would not Senator Stewart’s amendment affect an improvement ?
– No, it does not go far enough, and it would cause some overlapping. It deals in one definition with matters, some of which are of survey, whilst others are of inspection. The definitions in the Bill keep in one class matters subject to survey, and in another matters subject to inspection. That makes the meaning much clearer.
– The Vice-President of the Executive Council laid stress on the recommendations of the Navigation Commission.I hope that he will give attention to the definition contained in the Bill as redrafted by the Commission. There the definition of “ boilers and machinery”reads as follows - “ Boilers and machinery “ includes engines, and everything connected with them employed in propelling, steering, pumping, lighting, ventilating, mooring, or working any ship, and working or refrigerating any cargo aboard any ship.
– Is that contained in the report of the Commission?
– It is contained in the Bill as redrafted by the Commission.
– The Bill has been drafted mainly in accordance with therecommendations of the Commission.
– There is no warrant for saying that the Navigation Commission adopted the definition of “ boilers and machinery “ in this Bill.
– Senator Guthrie has referred to certain directions which are contained in section 272. of the Merchant Shipping Act. I venture to say that they were set forth for the purpose of guiding the surveyor, and not for the purpose of constituting a definition affecting the working of the whole measure. What the draftsman of the English Act evidently had in his mind was to put the terms used in section 272 in a special section to guide the surveyor in his duties.
– That is what this Bill does.
– We are going beyond that, and are making the definition apply to the whole meaning and administration of the measure. I submit that it would be dangerous to insert the definition in this form. The more the matter is discussed, the more it appears to me that Senator Stewart has proposed a wise amendment.
– I have listened with a great deal of interest to the debate on my amendment, and particularly to the laboured defence of the definition as it stands, made by the Vice-President of the Executive Council. He seemed to entirely lose sight of the purpose of my amendment.What is our object? We are trying to hammer out a set of definitions with the object of shortening and making simpler the various clauses of the Bill. In relation to “ boilers and machinery,” the first question we should ask ourselves is, What do we wish to embrace within those terms? In six lines the Bill as it stands enters into a great amount of detail, repeats itself more than once, elaborates a definition at great length, and yet, to my mind, leaves the matter in an incomplete state. I ask any unprejudiced man whether my amendment is not as comprehensive as, and much more simple than, the definition contained in the Bill. The Vice-President of the Executive Council says that the definition is the work of skilled draftsmen, who have proceeded upon precedent, I suppose. That is the habit of draftsmen. We have become accustomed to stringing out our Acts of Parliament unnecessarily, piling words upon words until a common, ordinary, everv-day individual can no more interpret a piece of legislation than he can translate the Bible from the Hebrew. Our object is to make this a clause that will be easily understood, and my amendment is an effort in that direction. Every individual is naturally enamoured of his own work, and does not like to have it interfered with. The business of the legislator is to apply common sense, taking ‘ the English language, and applying it in such a way as to make clear what the Legislature desires to place upon the statute-book. If we can achieve that end by a more direct and concise method than that which has been hitherto adopted by our draftsmen, we shall do well. This is an age of short cuts and of terseness. Let me refer to the extraordinary example mentioned by Senator McGregor. A more unfortunate example, from his own point of view, he could not have adduced. The framer of the ten commandments expressed himself with the greatest terseness and lucidity. He said, “ Thou shalt not kill.” But if the draftsmen of the Government,” and those honorable senators who support this Bill, had had a hand in framing, that commandment, it would have read something like this: “ Thou shalt not kill a red-haired woman, or a one-legged man, or a child that has had small-pox, or a black man, or a white woman, ox a yellow child, or any man, woman, or child, whatever.” We should try to follow the example of Moses, who, it will be remembered, had to carry the” two tables of stone down from the mountain top. If he had had my honorable friends opposite as his guides and counsellors, he would have required a bullock waggon to bring down the commandments.
– Or he would have required “boilers and machinery” and “ equipment “ to bring them down.
– Very probably.
– That is where the definition would come in.
– As it was, Moses was able to carry down the commandments under his arm. With regard to the authority cited by Senator de Largie - Mr. Shirra - I have not the slightest doubt that his definition was framed for him by a lawyer, or was copied from the New South Wales Act. It was “not his definition. He may be a thoroughly competent engineer, and his advice with regard to matters connected with his own profession would undoubtedly be of very great value. But when it comes to expressing his ideas in an Act of Parliament, I submit that if he was the author of this definition he was under what I might call the old dispensation, thai drags out everything unnecessarily. He had not come in contact with the new idea, which is to express our legislation concisely and clearly.
– On the model ‘ of the late1 Mr. Kingston’s Customs Act?
– Yes. I thought of his method of drafting very often as I read this Bill.
– If my honorable friend will look at the late Mr. Kingston’s definition’ in the Bill of 1904 he will see that the additions we have made to it are necessary, but that it is infinitely wider than his own definition. Would he like the late Mr. Kingston’s definition of “ boilers and machinery “ ?
– I am not bound slavishly to his definition, but I have no doubt that if he were here he would vote for my amendment. In this Bill there is an attempt made to differentiate between! machinery and the ordinary equipment ot a ship. Senator Best has said that if my amendment were carried the two definitions would overlap. They overlap now, and overlap very much more seriously than they would if my amendment were carried. I purpose to alter my amendment so as to make it read - every description of machinery and apparatus connected therewith used on a ship for the purposes of the ship pr her cargo.
I ask Senator Guthrie, as a representative of the seamen, what more does he want? It does not leave a single loophole for the owners to get out of a difficulty; whereas if the definition were passed as it stands, the Judges very naturally would examine it minutely, and if some particular portion of the equipment were not mentioned, they might say that “the Act was not intended to apply to it. Under my amendment there could not be any possibility of such an outlet for the owners. Tt is all-embracing. It takes in everything which may be said to have any connexion with the machinery on a ship. I ask honorable senators again, what more, do they want than that? Do they not want to shut off as much as possible all danger of litigation? Is it not the object of Senator de Largie to make our laws so clear that no intelligent person will have any difficulty in interpreting them, and the Courts will not be able to give decisions contrary, probably, to their spirit and intention ? If that is the object of honorable senators, they ought to vote for my amendment, notwithstanding what has been said by Senator Best. To my uninstructed lay mind my amendment is very much superior to the long, laboured, involve’d, intricate,, overlapping, obscure definition as it stands, and I appeal to honorable senators, in the interests of common people, as opposed to lawyers, to vote for it. I ask leave, sir, to insert the words “ connected therewith “ after the word /’ apparatus “- in my amendment. “
Amendment amended accordingly.
Question - That the words proposed to be left out be left out (Senator Stewart’s amendment) - put. The Committee divided.
Majority … … 3
Question so resolved in the negative.
– It will be remembered that I gave notice of my intention to move an amendment in the definition of “ Equipment.” I do not think that any argument is required to convince honorable senators of the necessity of providing that a ship shall be equipped with charts. It is a remarkable thing that such important articles as charts were left out of a definition which includes so many trifling articles used on board a ship. I believe that the omission was due to an oversight. If a ship is not to be equipped with charts she might as well not be provided with compasses. I move -
That after the word “ compasses,” line 17, the word “ charts “ be inserted.
– What charts is a ship to be provided with - a set of the world’s charts, or the charts of the places to which she is going?
– I should think that if a ship is registered for a certain trade, she must be equipped with the charts for that trade.
– But suppose that she is blown out of that trade?
– A ship must be a foreign-going ship, or an Australiantrade ship, or a limited trade ship, or a, river and bay ship.
– What charts is a foreign-going ship to carry ?
SenatorDE LARGIE.- She will require charts of the waters which she is going to navigate.
– For all the world?
– Yes, if she is going to sail in all the waters of the world ; but that is very improbable.
– Why should a ship be loaded up with charts for oceans which she is not going to traverse ?
– Every ship should be provided with charts of the waters which she is going to navigate. If, for instance, a ship is trading between Australia and the United Kingdom, she would need charts for allthe waters to be traversed.
– But suppose that while she is en route, she is ordered to Manila ?
– She could provide herself with fresh charts at the port where she received the order. Surely there is nothing unreasonable in demanding that a ship, setting out on a voyage, shall carry some plan of the voyage?
– What does the honorable senator propose should be covered by the words, ‘ ‘ every thing or article belonging to or to be used in connexion with or necessary for the navigation and safety of the ship “ ?
– I do not see why so important a thing as a chart of the waters in which the ship is going to sail should be omitted from this definition, when it includes a careful enumeration of such things as buckets, compasses, axes, lanterns, and so on.
– The honorable senator thinks that charts are necessary for the navigation of the ship ?
– I do.
-Then they are included in the words “ every thing …. necessary for the safety and navigation of the ship.”
– I have just replied to that by showing that such unimportant articles as buckets are specially mentioned, and, it seems to me,that it is at least as necessary to mention so important a thing as a chart. I know that there are parts of the coast of Australia that have so far been very imperfectly surveyed.
– Then what would be the use of a chart?
– The northwest coast of Australiais very imperfectly surveyed, and the charts of that coast in use are not very reliable. But the rest of the Commonwealth coast is well surveyed, and, in my opinion, it is the business of this Parliament to say that ships trading in certain waters shall be supplied with proper charts of those waters. I hold that this definition will be very imperfect if it does not specially include charts.
– There is no objection to the insertion of the word “ charts.” I do not deem its insertion absolutely necessary, because, in my opinion, it would be covered by the general words used. However, Ave have in the definition gone on to mention such things as - “apparatus for preventing or extinguishing fires, buckets, compasses, axes, lanterns,” and so on, and it would do no harm to insert the word “ charts,” whilst its insertion would remove all doubt on the subject.
– Would it mean that all ships included in the definition under this Bill would be obliged to carry a chart?
– It would mean that every ship must be provided with the charts necessary for her navigation. It is objected that it would mean that a ship must carryall the charts of the world with her, but that is not so. It would mean that a ship must carry the best available chart for the particular voyage on which she is entering.
– Is that what the honorable senator is going to read into the definition?
– I am not reading anything into it. That is what the definition will say if Senator de Largie’s amendment is agreed to.
– The honorable senator is giving a new definition.
– Does not my honorable friend see that the word “ charts,” if inserted as proposed, will be qualified by the words, “ necessary for the navigation and safetyof the ship.”
– It might be possible to navigate a’ ship from Fremantle to Sydney with one chart, but it might not be possible to navigate the ship from Fremantle to Hong Kong with the same chart.
– Of course not. I say that the insertion of the word “charts” would mean that the ship must be equipped with the charts necessary for the voyage . upon which she is entering.
– Does the honorable senator wish to put that in?
– That is what would follow from the adoption of the amendment.
– Would the High Court decide that?
– I can only say that I am giving honorable senators my view of the matter. It must be conceded that a chart of the voyage on which she is entering is necessary for the navigation and safety of the ship, and it is, therefore, reasonable to say that it shall be included in the equipment of the ship. If a ship were going to Hong Kong from this port she would require to be equipped with the best chart obtainable to enable her to be safely navigated on that voyage. If she were going to Cape York, she should carry the chart necessary for the voyage to Cape York.
– Suppose she was leaving Thursday Island for the pearlshell fisheries?
– Then she should carry the best available charts for that purpose.
– Suppose there were no such charts?
– Then she could not carry them.
– Ships leave Newcastle for ports in South America, and it may not be possible to obtain in Newcastle charts of these ports.
– If the charts cannot be obtained the ship will not be obliged to carry them.
– If a ship were going from here to Mauritius we should have no control over her.
– We could insist that she should be properly equipped for the voyage on which she was entering.
SenatorClemons. - Suppose a ship leaves an Australian port for Manila, and after discharging cargo there–
– We should have noth ing to do with her after she got there.
– How farcical it is to say that a ship shall carry a chart to take her to Manila, and that after she gets there she may run on the first rock she comes to.
– All we hare to deal with is her first port of arrival after she leaves our shores. I say that it is probable that charts would be included in equipment as defined in the clause, but the insertion of the word will make their inclusion certain.
– I have no objection to the amendment. Its effect will be to relieve the master of a ship of the necessity of buying his own charts, and will make the providing of charts a charge upon the owners of the ship. No master if he can help it is going to take a ship along a coast of which he has not a chart. His occupation is at stake in the matter. If his ship goes on a rock he cannot plead before a court of inquiry that he had no chart of the coast. If he did he would lose his certificate for trying to navigate a coast without a chart. The chart is really a tool of trade of the master of a ship. We might just as well include a quadrant, because that is .equally necessary for the safe navigation of a .ship. We might even more reasonably include sailing directions, which are of greater value to the master of a ship” than are his charts.
– Would not the sailing directions be included in the charts ?
– No. They are published separately, and they are very expensive. The sailing directions of the Australian coast are issued by the Admiralty in six volumes, and cost about 30s. a volume. Of course, there are charts and charts. I have a chart of the world with all the steam-ship routes marked on it, and I bought it in Melbourne for 8s., but it would be of no use to a master navigating a ship around the world. I remember that at one time I left England in a ship bound for Lisbon. It was expected tint when we discharged cargo there we would have to go across to South. America, but after arrival at Lisbon we received orders to go to Newfoundland. The captain was unable to obtain in Lisbon a chart of the coast of Newfoundland. We picked up Newfoundland easily enough, but we had some little difficulty in navigating the coast, and were fortunate in having fine weather. If charts are to be part of the equipment of a ship they must be supplied by the owner, and it is possible that in that case a master might plead at a court of inquiry that the owner of his ship did not supply him with proper charts.
– Are masters required to supply their own charts now ?
– Yes. I intend to support the amendment, which if agreed to will have the effect of making the owners of vessels bear the cost of supplying the necessary charts in lieu of the masters.
– If I may judge by the interjections of honorable senators, an attempt is being made to cloud the issue that is involved in the amendment submitted by Senator de Largie. My view is that we must either accept that amendment, or eliminate from this provision the words “ and every thing or article belonging to or to be used in connexion with, or necessary for the navigation and safety of the ship.” If an axe, or lantern, or bucket, or fire extinguisher is necessary for the safety of a ship, why use the other words? The definition of “Equipment” is,. I think, contained in the words I have quoted. If, however, honorable senators believe that other words are necessary to amplify that definition, Senator de Largie’s amendment should be agreed to.
– The other words are’ used for an entirely different purpose.
– If any article is really necessary for the safety of a ship, certainly it is a chart. It has been suggested that certain portions of the Australian coast have not been surveyed. If that be so, no chart of these particular localities will be in existence. Of course we all know that there are certain parts of our coast which have been but imperfectly surveyed, but we all hope that before this Bill becomes operative they will have been completely surveyed.
Question - That the word proposed to be inserted be inserted (Senator de Largie’s amendment) - put. The Committee divided.
Majority … … 4
Question so resolved in the negative.
– I move -
That the following new paragraph be inserted : - “Gear” means gear for working cargo, and shall include slings, blocks, and tackles, gins, winches, derricks, falls, spans, baskets, slate chairs, nets, and any other appliance ordinarily used in the working of cargo.
A prominent member of the Wharf Labourers’ Union has drawn my attention to the fact that at the present time the definition of the word “ gear “ is not sufficiently clear, and, acting upon the advice of practical men, I have endeavoured to remedy this defect.
– I think that the honorable senator must have circulated this amendment under a misapprehension. The definition of “equipment,” I would point out, includes - loading and discharging gear and apparatus of all kinds.
– And in the first line of that definition, the word “ tackle “ is used.
– Yes. The amendment, if adopted, would not effect anything for which the Bill does not already provide. The words “ loading and discharging gear and apparatus of all kinds “ cover all that Senator de Largie desires.
Senator Sir JOSIAH SYMON (South Australia) [4.54]. - Does the Vice-President of the Executive Council really think that the latter portion of the definition of “Owner” is necessary? Surely there is no need for us to say that “ owner “ means “ any person to whom the whole or a part of a ship belongs ‘ ‘ ?
– The definition to which Senator Symon has called my attention is really in accordance with the English law. Part VIII. of the Merchant Shipping Act deals with the ownership of vessels, and the provision which is now under consideration is merely a declaration of the British law upon the subject. I think it is advisable that it should be retained in its present form.
– I should like to know whether it is necessary to use the word “ secretary “ in the definition of “ owner “ ? As a rule, the secretary of a shipping company has no interest in the ownership of the vessels of the company. I can quite understand the general manager being regarded as connected with the ownership, but not the secretary. Probably it is very convenient that the secretary should be named for the purpose of serving processes, because in some cases it might be difficult to ascertain who the owners of a steamship were. But otherwise it does not seem desirable that the secretary should be introduced as incurring liability in behalf of the owners.
– The ownership of a ship is divided into sixty-four shares, and it is necessary that a provision of this kind should be inserted, or there would be a possibility of persons who desire to proceed against the owners not being able to discover each of the owners of the sixty-four shares for the purpose of instituting proceedings. I direct attention to Part VIII. of the Merchant Shipping Act, the principle of which we have followed ; but we have added the word “ secretary “ for the purpose of facilitating proceedings. The Merchant Shipping Act says that the owner shall be liable, and goes on to facilitate the service of processes by mentioning the agent or the husband of the ship, who are to be registered. To all intents and purposes the secretary takes the place of the ship’s husband under this Bill.
– Under this Bill the owners of a ship are liable to very heavy penalties. It seems to me that the secretary of a company should not be made liable. This is the first time that I have heard the term “ ship’s husband “ used in the same sense as “ the secretary “ of a shipping company.
– It is the principle that is the same.
– We may be doing an act of injustice to a class of persons who should not be made personally liable.
– I direct attention to the definition of “ Officer,” which, “ in relation to a ship, means the master, mates, and engineers of the ship.” Under clause 13 we have “ marine engine-driver “ mentioned. Would he not be included in the definition of “ officer “ ? A marine engine-driver is one who takes charge of a river boat, and surely should be classed as an officer.
– I do not think that a marine engine-driver would be an officer under this definition. I shall be glad to reconsider the matter, but as at present advised it appears to me that the only engineers who are referred to are first, second, and third class engineers. There are a considerable number of men who trade about rivers and harbors in small boats, and scarcely ever go out of smooth water. It would be a hardship to insist on engineers being appointed to such little vessels. Provision is made to issue to such men marine engine-drivers’ certificates, . but they would not come within the definition of “ Officer.”
– Schedule 1 refers to vessels of 50 tons net register and upwards requiring certificated officers. That seems to indicate that a marine engine-driver is an officer.
– The honorable senator has not observed the footnote : “Under 50 N.H.P. one marine engine-driver.”
Senator Sir JOSIAH SYMON (South Australia) [5.8]. - I understand that a doubt exists as to whether the term “officer” would include a “ marine engine-driver.” Such a person is in the category of engineers under clause 13.
– I think not.
– In the general category of engineers under that clause, we have first, second, and third class engineers, and marine engine-drivers specifically mentioned.
– I thank my honorable friend for drawing my attention to that. I will look into the matter again.
– In connexion with the definition of “ Seaman “ there is a matter to which attention should be drawn. It is often necessary, especially in the Australian trade, to take tradesmen from one port to another for the erection of cattle-pits and carrying out alterations during the trip. If such men meet with accidents they are absolutely outside the Compensation Acts and the Employers Liability Acts of the States. According to the Compensation Act, men who are erecting fittings on a vessel at sea are not seamen, and, therefore, are debarred from claiming compensation for any injuries which they may sustain. In order to be in a position to obtain compensation in such a case, they must either be on the ship’s articles oron the passenger list. Suppose, for instance, that a ship is leaving Melbourne for Sydney, where she is to take on board 300 or 400 cattle or horses. In order to prevent any delay to the ship at Sydney, the captain takes away a number of carpenters, who erect the necessary fittings during the trip. But those men are not on the ship’s articles, and if any serious damage is done to any one of them at sea, he cannot claim any compensation from the ship-owner, because neither the Victorian law nor the New South Wales law applies to a case of that kind. I think that it would be wise to insert after the word “ apprentices,” in the definition of “seaman,”’ the words “ and mechanics erecting fittings, &c, between ports.”
– What would be the result of the amendment which the honorable senator proposes to move ?
-In a case of accident, temporary men who were working on a ship would be entitled to the same benefit under the Compensation Act as would any seaman if injured.
– For the purpose of the Compensation Act, the honorable senator proposes to make those persons seamen, without calling on them to sign the articles ?
– I want to give them an opportunity to sign on ; otherwise they will be passengers. This is purely an Australian practice, and, therefore, no provision on the subject is to be found in the Merchant Shipping Act.
– Does the honorable senator propose to make the men sign the articles ?
– That is what I wish to do.
– They will sign on.
– A ship does not sign on a dozen carpenters.
– If a dozen carpenters are taken on board a ship and employed at sea, they will come under the definition of “ Seaman,” unless they are excluded, and, therefore, they will be entitled to compensation if injured.
– I do not know that they will. Persons who are temporarily employed on a ship in port are not seamen, and any mechanics who may be taken to sea will require to be put on the ship’s articles.
– No; under this definition they will be seamen.
– Every one who is taken to sea by, and employed on, a ship will be a seaman.
– If the definition includes temporary hands who are simply employed for a trip, I do not object to it.
Senator Sir JOSIAH SYMON (South Australia) [5.19]. - I think that Senator Guthrie has convinced himself that it is not necessary to make the amendment which he rose to move, because every one who is taken on board a ship, and engaged in any capacity, comes within the definition, and will be able to claim compensation just as much as a regular seaman before the mast.
– In the definition of “Apprentice.” I want to introduce two words, because boys are indentured to a shipmaster rather than to the owner of the ship. I move -
That after the word “ ship-owner,” line 31, the words “or master” be inserted.
Honorable senators ought to bear in mind that often a boy is indentured to aship, and the master of the ship, rather than to her owner.
– To both?
– Yes, in some cases.
– There is no objection to the amendment.
Amendment agreed to.
– With regard to the definition of desertion, I gave notice of an amendment to reduce the term of the leave of ab sence from forty-eight hours to twentyfour hours. On this subject the Navigation Commission took a great deal of evidence. At the Navigation Conference exception was taken to a proposal to. abolish imprisonment for desertion. It was held that we must provide some deterrent, because if we allowed seamen to desert too easily we should increase the trouble which isnow experienced. I am told that it is not an uncommon practice in Melbourne, as well as in other ports, for men, especially firemen, to desert a ship, not because they do not like her, or they are badly treated, or object to their food or accommodation, but simply because they want a longer spell on shore. They wait until the ship is almost leaving before they jump ashore. They cannot be touched ; they have left their clothes on board, and therefore it cannot be said that they had no intention of returning to the ship. It was pointed out by the ship-owners, Mr. Grayson, Captain Dingle, and other witnesses before the Navigation Commission, that we must provide a stronger deterrent against desertion than then existed. In some ports it is impossible to pick up men quickly where a crew has deserted at the last moment. In large ports like London and Liverpool, desertion is a matter of very little consequence, because men can be obtained at once. To a certain extent that is so in Melbourne. There are always some men hanging about the wharf who are only too glad to jump on board a ship, and get put on her articles. But that is not a thing which should be encouraged. At the Navigation Conference the authorities all came to the conclusion that there ought to be a stronger deterrent against desertion than was proposed in the Bill. I move -
That the word “ forty-eight,” line 34, be left out with a view to insert in lieu thereof the word “ twenty-four.”
If that amendment is carried, I propose to move the omission of the words “with the intention of not returning thereto,” because their retention can do no good to any one, except the sailor who breaks his agreement, and deserts knowingly and wilfully.
– I ask Senator Macfarlane to withdraw his amendment temporarily, in order to enable me to move an amendment of which I forgot to give notice. I want this definition altered so as to read -
Desertion” means any unlawful departure from his ship with the intention of not returning thereto.
The definition will then be in accordance with the existing law on the subject. What is provided in the definition at present has never been considered as desertion in the whole history of merchant shipping law. For absence without leave a stronger penalty is provided than is prescribed in the case of any other trade or profession that I know of. For being absent without leave in certain circumstances a man can be sent to gaol for as long a period as three months. That is too severe a term of imprisonment.
Amendment, by leave, withdrawn.
– I move -
That the following words be left out : - “ the absence of a seaman or apprentice from* his ship without leave for a period of forty-eight hours without lawful cause or excuse, or,” lines 32 t° 35-
Surely a man who has signed on a ship should have the right, even without leave, to go ashore after his work is done ! The custom is that once a man has signed on a ship he belongs to her - unless he obtains special leave to go ashore - until he signs clear, which may not take place for a period of three years. Leave may be withheld without any reason given, or it may be granted. The practice followed on the Australian coast has been when a ship is in port for men to work until 5 o’clock p.m. 7 when they may go ashore, and need not return until the following morning. No special leave has been considered necessary in such cases. My fear is that if the words, “or any unlawful departure, with the intention of not returning thereto,” are struck out, as suggested, any departure from the ship may make a man a deserter.
– We do not propose to leave out those words.
– An unlawful departure’ is where a man does not intend to return to the ship again.
– How would .thehonorable senator define that?
– It has been defined by the Courts in England in cases quoted in the text-books, and the definition has depended on evidence that the seaman did not intend to return to the ship again. For instance, it might be regarded as evi dence of desertion if, when a man left a ship, he took all his property out of it. If h» did not do so, and’ deserted, he would forfeit his property. I think it may be said that in every case where a man deserts, he is at a considerable loss.
– Not in every case. It depends largely on the pay-day.
– The honorable senator is referring to the Australian coasting trade. A man leaving an Australian coastal boat may lose a couple of days’ wages, or a month’s wages, but a man leaving a foreign-going ship on arrival here after a voyage of, perhaps, half way round the world, must leave behind him a considerable amount in wages. Honorable senators must be aware that complaint has been made that men have been encouraged to desert, because they would thus forfeit the money they had earned. It should be remembered, also, that even under this Bill, the money forfeited would not be paid over to the shipping authorities, but would be retained by the owners.
– The honorable senator is referring to foreign ships.
– That applies to British ships as well. We had it in ev1dence before the Navigation Commission that masters of ships made it a boast in Newcastle that they had sailed in and out of that port with half-a-dozen crews, and had never paid one of them.
– That was all “gas.” It could not possibly be true.
– It was not “ gas “ ; but sworn evidence.
– If true, it was largely due to the cursed system of crimping practised in Newcastle.
– I ask only for justice in this matter. I think that we should define absence without leave, and should also define desertion, and provide for its punishment. Men absent without leave are sufficiently punished under existing circumstances, without being subjected to the highly penal provisions of this Bill.
– This is a very important definition. Senator Guthrie will admit at once that its applicability to foreign-going ships, and to ships engaged in the Australian coastal trade, varies considerably. I am in entire sympathy with the remarks which the honorable senator has made concerning the forfeiture of wages for desertion, especially from foreign-going ships ; but I wish pax- ticularly to direct the attention of the Committee to the practice on boats engaged in the Australian coastal trade. Serious difficulty may arise in that trade if we provide that a man may be forty-eight hours absent from his ship without being guilty of desertion. I take the case of the Loongana, on which I travel every time I come here from Tasmania. If desertion from that boat could only be established by an absence without leave for forty-eight hours, her firemen might desert every trip.
– They can give twenty-four hours’ notice of their intention to leave on any trip.
– The Loongana usually arrives at Melbourne at 9 o’clock in the morning, and she sails again for Launceston at 4 in the afternoon. If a fireman left immediately upon her arrival in Melbourne, and did not turn up at 4 o’clock in the afternoon, when she had to leave, so far as the owners are concerned the ship would be without that fireman. Under the definition as it stands, every man in the ship might leave it for fortyeight hours, and her trips would be absolutely stopped. Let me remind the Committee that the Loongana often leaves and returns to the port of Melbourne in less than forty-eight .hours, and, under this definition, a fireman might leave immediately upon her arrival in port, and seek to rejoin the vessel when she, next entered the port, after having missed an entire trip. What I have said with respect to the Loongana is applicable also to boats trading between Melbourne and Sydney, Melbourne and Adelaide, or Melbourne and Western Australia. Many of the boats engaged in . the coastal trade between the principal Australian ports do not remain for forty-eight hours in any port, and they would be seriously inconvenienced if they were compelled to do so. Yet a seaman or fireman on any of these boats. might under this Bill take advantage of this definition, which would give him forty-eight hours on shore before he could be regarded as a deserter. If men left a vessel under these conditions, the master would have to engage others, or the ship would be stopped. The definition is utterly impracticable as applied to our coastal trade. Senator Guthrie proposes that desertion should mean “any unlawful departure from a ship with the intention of not returning thereto.” But within what time?
– Any time.
– The man might reply : “ I did intend to return at the end of thirty-six hours,” or “ at the end of forty-eight hours.”
– He would have to prove that.
– How could a conviction for desertion be secured under such a definition?
– How have convictions been secured in the past?
– We wish to pass a law which will be clear alike to seamen, owners, and masters. I was at first disposed to think that Senator Guthrie had proposed a way out of the difficulty, but I am now afraid that his proposal would lead us into much greater difficulty. If we qualified an unlawful departure by any reference to an intention not to return, a seaman leaving a ship would always be able to say that he intended to return, not perhaps in twelve or twenty-four hours, but in thirty-six or forty-eight hours, and he might give proof of his intention by being on the wharf ready to join the ship again within that time. I hope that Senator Best will recognise the importance of this matter. It seems to me that it would be impossible to carry on a great deal of our coastal trade if, without any deterrent whatever, we permitted seamen to leave their ships for forty-eight hours. Senator Guthrie, with his experience of the coastal trade, must acknowledge that even Senator Macfarlane’s suggestion that the time limit should be twenty-four hours, would largely interfere with the work of many of the boats engaged in that trade. Let me return to my illustration of the Loongana. If a seaman or fireman were permitted to leave that vessel for forty-eight hours, she might, if it were possible for her to do so; and if she were permitted to do so under the law, have to leave the port of Melbourne with half of her crew, or half of her proper complement of firemen, or else break the terms of her contract for the carriage of mails. She usually arrives here at 9 o’clock in the morning, and is under contract with the Post and Telegraph Department to leave at 4 o’clock in the afternoon. What is the alternative? 1 may be told that the master can engage other men.
– I shall answer that objection.
– I shall be glad to hear the answer. I wish to refer to the penalty which men are under in leaving a vessel. These men are paid monthly, as we know, and it is very unlikely that a man would desert if the whole of a month’s pay were due to him. I admit that the forfeiture of pay is an automatic deterrent to desertion, but if,- for instance, to-day were pay-day on the Loongana, and. the men were, paid on her arrival in Melbourne, this morning, they might subsequently desert, without any forfeiture of pay.
– Is there very much desertion from vessels engaged in the coastal trade?
– Practically none.
– Let me inform honorable senators that desertion, not by the better class of seamen or fireman, but bv greasers, is fairly frequent and common in our coastal trade?
– It is constantly going on.
– Perhaps the chief engineers are glad of an opportunity to be rid of such men.
– I admit that it is possible that there are men whom the engineers would like to get rid of, but these desertions may lead to serious inconvenience. I am glad to be able to say that a fairly steady lot of men are engaged on the Boats of which I know anything, but the fact remains that there are desertions every week in the port of Melbourne.
– From coastal steamers?
– Yes, coastal steamers. I know something of the desertions that take place on the boat on which I generally travel. If men are permitted to desert’ without any adequate deterrent, our coastal trade may be seriously hampered.
– I quite admit that if the cases mentioned by Senator Clemons were not otherwise provided for, the matter would be serious, and the satisfactory conduct of the Australian coastal trade would be rendered practically impossible. The honorable senator has been dealing with the question of desertion, but I hardly think that the cases to which he has referred come properly within that category. They are, I think, dealt with as offences under clause 96 of the Bill. That clause provides that -
The acts specified in column 1 hereunder shall be offences against discipline, and a seaman or apprentice committing any one of them shall be liable to a punishment not exceeding the punishment set opposite to the offence in column 2 hereunder.
Then in column 1 honorable senators will find included amongst the offences against discipline -
Absence without leave from duty, such, absence not amounting to desertion, or not treated as such by the master.
For that offence, it will be seen that the penalty provided is -
Forfeiture of ten days’ wages, with an additional forfeiture of ten days’ wages for every twenty-four hours of absence.
– Suppose there are no wages to forfeit? The penalty could not be enforced. .
– I am not so sure that any other penalty could be enforced; but the honorable senator will see that if the man desired to return to the ship he would be liable to lose the wages due to him.
– In the meantime, his absence might seriously inconvenience the working of the ship.
– That might happen, but if a man has only what he stands up in there is no way to deal with him except by regarding his absence as an offence as proposed in the Bill.
– It is one thing to regard the absence as an offence and another to provide an adequate penalty.
– What would my honorable friend suggest? Does he suggest that a man should be taken bodily and placed on board the ship? We provide in the. Bill for what we regard as an adequate deterrent against the commission of such an offence.
– If the honorable senator refers to clause 96 the deterrent provided is not adequate.
– That will be a matter for honorable senators to deal with when we come to the clause.
– Let us amend clause 96.
– If honorable senators do not regard that provision as adequate we can amend it. But there is no other way of dealing with the matter.
– I do not admit that for a moment.
– Senator Guthrie should certainly have had his amendment printed and circulated, because it is one of a most serious character..
– Does not the Merchant Shipping Act make absence without leave equivalent to desertion?
– Section 221 of that Act reads -
If a seaman lawfully engaged, or an apprentice to the sea service, commits any of the following offences he shall be liable to be punished summarily, as follows : -
If he deserts from his ship he shall be guilty of the offence of desertion, and be liable to forfeit all or any part of the effects he leaves on board, and of the wages which he has then earned, and also, if the desertion takes place abroad, of the wages he may earn in any other ship in which he may be employed until his next return to the United Kingdom, and to satisfy an excess of wages paid by the master or owner of the ship to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him ; and also, except in the United Kingdom, he shall be liable to imprisonment for any period not exceeding twelve weeks with or without hard labour.
– The Act of 1894 abolished imprisonment for desertion.
– Yes, so far as the United Kingdom is concerned.
– Will the VicePresident of the Executive Council read section 222 ?
– Certainly. It reads-
If in the United’ Kingdom a seaman or apprentice is guilty of the offence of desertion or of absence without leave, or otherwise absents himself from his ship without leave, the master, any mate, the owner, ship’s husband, or consignee of the ship, may, with or without the assistance of the local police officers or constables, convey him on board his ship, and those officers and constables are hereby directed to give assistance if required.
Dealing with the point raised by Senator Clemons, I would point out that it is quite competent for him to move the insertion of a provision under which a seaman who absents himself without leave, may - if it be possible to do so - be secured and placed on board his ship. But in this measure we have abolished the necessity for following that course of action except under certain circumstances which are set out.
– I do not desire to provide for any term of imprisonment.
– I apprehend that. The only other course open to us is to make the act of a seaman in absenting himself from his vessel for a certain, period without leave, an offence. That offence we have designated “desertion,” and we have prescribed the punishment to which the offender is liable. It is for the Committee to say whether that punishment is adequate.
– Is the VicePresident of the Executive Council satisfied with the meaning of “ any unlawful departure “ ?
– It will be for the Court to determine whether a man has been guilty of “ any unlawful departure.”
– But “ unlawful “ means something criminal. Will the Vice-President of the Executive Council give the Committee an illustration of what’ would constitute an “ unlawful departure” ?
– It would be a departure without leave.
– That is “ desertion,” is it not?
– A seaman might be guilty of “ desertion,” even if he absented himself from his ship with leave.
– If- notwithstanding that he had signed an agreement to serve so many years - a sailor were to pack his kit, after telling his mates on board that he intended to clear out, that would certainly constitute an “ unlawful departure.”
– It would be a “ departure,” but whether it would be “ unlawful “ would depend upon whether he returned to his ship.
– How is his intention to be determined ?
– That is for the Court to decide. In such a case as that which I have just mentioned, his intention would be obvious.
– Is it intended to throw upon the owner the burden of proving “intent” in all cases?
– Most ship-masters advertise the time of the departure of their vessels.
– I am aware of that. This is a matter which is attended with very great difficulty. In the Bill we provide that if a seaman absents himself from his ship for forty-eight hours without having in the meantime satisfied the master as to the reason of his absence, he shall be guilty of “ desertion.” It is only fair that the master should be allowed to know whether or not a seaman intends returning to his work within a definite period. Surely the latter should not be permitted to absent himself for an indefinite period, and then to say, “ I fully intended to return to my ship, but I was enjoying myself in a variety of ways, and was prevented from so doing.”
– He might say that he was detained at a tea-party. Senator BEST.- Exactly. He might say that he was enjoying himself in various ways, and was thus prevented from returning to his vessel within forty-eight hours. Surely the master ought to be enabled to know exactly where he stands. Consequently we have prescribed a period at the expiration of which he shall be at liberty to act. We declare that if a seaman, without lawful excuse, absents himself without leave for a period of forty-eight hours, he shall be deemed to be guilty of desertion.
– What happens to the ship? She cannot leave port without a full complement.
– Under such circumstances the master would be justified in engaging somebody else. But if we did not prescribe a definite period over which a seaman’s absence must extend in order to constitute “ desertion,” the probability is that as soon as the master had engaged another hand to fill the vacancy on his vessel, the absentee might return and say, “ J. claim my right to resume work.” The period fixed in the Bill will enable the master to know exactly where he stands. “Any unlawful departure” by a seaman means that he must leave his vessel with the intention of not returning. If he were to leave it only for an hour or two, and the master ascertained that he had taken his kit from the ship and expressed an intention of not returning, the master would be justified in engaging somebody else to fill the vacancy.
– The master would require a microscope to discover the kits of some firemen on vessels which are engaged in making short trips.
– The definition is most reasonable. The absence of a seaman, without leave, for twenty-four hours, will not be sufficient in itself to constitute desertion. Many accidental circumstances may prevent him from rejoining his vessel within that period. Consequently, we fix the term of absence at forty-eight hours.
– For our coastal vessels ?
– The class of offence to which the honorable senator refers, is dealt with under another provision of the Bill.
– But not adequately.
– It is scarcely involved in the definition which is now under consideration.
– Great as are the difficulties under which the vessels engaged in our coastal trade labour, our over-sea vessels, and particularly our mail steamers, are subjected to still greater. Australia is a country to which immigrants are being attracted every vear. Inducements are held out to them to* settle in Australia, and it is quite possible for seamen to ship in England,, with the full intention of deserting upon their arrival here. Seeing that our mail steamers are liable to very severe penalties if they fail to observe contract time in the delivery’ of their mails, I think that we ought to extend some consideration to them in this Bill. I need scarcely point out that desertions from over-sea vessels are much more frequent than are desertions from ships employed in our coastal trade. I can quite conceive circumstances under which the Orient and the Peninsular and Oriental Companies may experience the greatest difficulty in getting a full complement to man their vessels when leaving our ports. Let -us assume that a great gold discovery was made, which induced a large number of their seamen to desert. It will be readily admitted that under such circumstances the position of those companies would be a very trying one. I would also point out that, under certain portions of this Bill, foreign shipping is placed in a better position than is British shipping. For instance, for the offence of desertion foreign seamen may bs imprisoned for three months, whereas British seamen cannot. I think that we might minimize this trouble by reducing the period over which a seaman’s absence from his vessel, without lawful excuse, may extend from forty-eight hours to twentyfour hours, and I hope that that course will be adopted.
Senator Sir JOSIAH SYMON (South Australia) [5.54]. - This discussion has arisen out of the attempt which is now being made to define “ desertion.” I think that it would be well for us to consider what the position of the law is, and how a seaman and a ship-owner are protected, before we interfere one way or the other with the proposed definition. I agree with the VicePresident of the Executive Council that there is a broad distinction between what is called desertion- which is a very serious offence - and mere absence without leave. Absence without leave is provided against in clause 96, and that seems to meet those cases which have been referred to in connexion with coasting ships where a man goes ashore without leave, and it is either impossible to establish desertion in the more serious sense, or for any other cause it is desired to inflict a light punishment. But it is obvious that the offence provided against in clause 96 is looked upon as venial in comparison with desertion, because the penalty is less than that for desertion. The essential feature of desertion is that the seaman who leaves his ship has no intention of returning. To my mind, the first part of this definition is very unjust to the seaman. It makes his absence from his ship without leave for forty-eight hours without lawful cause or excuse, an offence. That is an alteration of the law against seamen.
– It is not an alteration of Australian practice, because this is the law of New South Wales and of New Zealand.
– It is not the law of New South Wales.
– Pardon me, it is; this definition is taken from the New South Wales Act.
– It was pointed out in certain passages in the Board of Trade despatch that this definition was contrary to the law of England, and to a long series of decisions, and that the absence of a seaman without leave or withoutlawful cause or excuse is not desertion according to English law, unless he is absent without any intention of returning. That is the essence of the offence, and if we leave that out, we shall be making that desertion which the law of England does not make desertion. In the Merchant Shipping Act there is no definition of desertion at all. Even if the New Zealand Act does contain this definition, that is a precedent which, in eliminating the element of intention, is one which we ought hot to follow. I will read what the law of England is. Desertion consists in the abandonment of a ship– by any apprentice or by any seaman lawfully engaged before the due termination of his engagement without just cause and with the intention of not returning to the vessel.
That is contained in Maclachlan’s Treatise on the Laws of Merchant Shipping, page 245. I shall be no party to whittling that down-, or taking out a qualification that protects the seamen from being unjustly condemned for the serious offence of desertion, when the element of desertion is absent. If a draftsman chooses to play fast and loose with a great principle of law, we should not be bound by his work. We want to do justice to the seaman as well as to the ship-owner. I say that the, definition contained in this Bill ought not to stand. We ought to retain the words “ with the intention of not returning thereto.” Of course, if this Parliament chooses to alter the law, it can do so, but I shall be no party to assenting to the first part of this definition unless the words with the intention of not returning thereto “ are inserted therein, as well as the words “ without just cause or excuse.” I thoroughly agree with Senator Macfarlane that the forty-eight hours’ notice provision is a perfect absurdity. I do not think that there ought to be any time limit at all. A man may desert from a ship although he is only absent an hour. It is a question of his being away without just cause or excuse, and without an intention of returning; and that intention may exist if he is only away half-an-hour.
– Thatis provided for in the Bill.
– Indeed it is not. There is no definition of what “ unlawful departure “ means. There may be a perfectly lawful departure from a ship, and yet there may be desertion. A man may have left his ship on leave, and after he gets ashore may make up his mind not to go back. Or he may lawfully depart from his ship with the leave of the master, and the next day he may change his mind and refuse to go back. That is desertion; the departure was lawful enough. The desertion arises later. We should get into a very serious state of trouble if we experimented in this way. It is rather a crude experiment.
– Made in New South Wales and New Zealand.
– That does not alter my view. I do not care if the legislation of fifty States takes away the element which makes the criminality or seriousness of desertion. We ought to be no partyto it. I think that the definition should be made to read as follows -
Desertion means the absence of a seaman or apprentice from his ship without just cause or excuse with the intention of not returning thereto.
There is an absolute definition of desertion, fair to the seaman because it includes the element of his not returning ; and fair to the ship-owner, because an absence of ten minutes from the ship, if accompanied by an intention not to go back, would constitute desertion. But if we put in a forty-eight hours’ limit we shall simply give the seaman who wishes to get away from his ship a chance to desert. If we like to say that absence for forty-eight hours from a ship shall be evidence of an intention not to return, that would be a different thing. I should have no objection to that. But it would be grossly unfair to the seaman to leave out the element of no intention to return; and unfair to the ship-owner to give a period of forty-eight hours’ start, when ten minutes after a seaman left a ship he might turn round and say to the master, “ Now, I am off, and have no intention of coming back, and you cannot come after me for fortyeight hours.” I suggest that Senator Guthrie should adopt my suggestion. Absence without leave is already sufficiently provided for. It is an offence under clause 96.
– As the proposal of Senator Symon meets my view, I ask leave to withdraw my amendment.
– The honorable senator agrees with me as to what ought to constitute desertion?
– Exactly. All along I have contended that absence without leave should not be made a highly criminal offence, such as desertion is. I do not know of any cases where seamen in the coasting trade have been prosecuted for deserting their ships. Under Australian conditions there is no need for such men to desert, because for many years they have enjoyed the right to give twenty-four hours’ notice if they wish to leave. At the expiration of that notice, they can draw their money and depart. Of course, there are occasions when men miss their passages. Suppose that the words “ forty-eight hours “ are retained, what will be the position? A captain orders’ a man to come down at 5 o’clock, but the work is done more quickly than was anticipated, and the ship sails at 4 o’clock. In a case of that kind a man could be prosecuted for desertion, although he had no chance to join the ship at the time fixed by the captain. A number of men lose their passages in ships simply through being told to come down at a certain hour. On their arrival, they find that the ships have sailed.
– That would not be an unlawful absence.
– It would, because under certain circumstances it is not lawful for a man to go ashore at all.
– In that case, the man would have a lawful cause or excuse for being absent.
– If the honorable senator were engaged to prosecute the man, he would argue at once that he Had no right to go ashore. This provision, however, touches foreign-going ships, not coasting vessels. I am anxious to give effect to the definition, because I recognise that to a large extent the crimping business at Newcastle is caused by men deserting ships there. I would prefer British ships coming here with cargoes to discharge their men, and to ship new crews, because in my opinion it would be a great deal better for the men, and better for the country.
– Crimping and desertion are two different things.
– The first step in crimping is to get the men to desert their ship. The crimpers go on a ship, tell the men that they are in a position to start them on a farm up country, and thus get them to leave. They get one lot of men to desert, so that they may have an opportunity of supplying other men to their ship. Crimping ought to be punished in some way, but it would be going too far to say that a man who went ashore with an intention of returning, should be punished as a deserter. I am prepared to accept the suggestion of Senator Symon.
Amendment, by leave, withdrawn.
Senator Sir JOSIAH SYMON (South Australia.) [6.17]. - My desire is to make the definition of “ desertion “ read as follows - “ Desertion “ means the absence of a seaman or apprentice from his ship without just cause or excuse with the intention of not returning thereto.
In the first place, I move -
That after the word “without,” line 33. the words “ just cause or excuse “ be inserted.
– It is a little unfair to me to have an important amendment sprung upon me in this way. It deals with an exceedingly difficult and technical matter; and I certainly cannot advise its acceptance by the Committee. From time to time, ship-masters have complained very strongly that they never knew where they were in these matters. The proving of intention is so difficult, that it leads to trouble and litigation. It is most embarrassing that a ship-master cannot ascertain his exact position when he wants to make a definite arrangement.
– Does the Minister think that a seaman ought to be convicted of desertion without some evidence that he had no intention of returning to the ship being given ?
– If a man is wrongly convicted, he will have a remedy. Of course, in a case of that kind, a master would have to prove that a seaman had no intention of returning to the ship. The ship-owners wanted a definite period fixed in the Bill, so that new arrangements could be made. In New South Wales and New Zealand, a similar definition has worked most satisfactorily. The definition in the New Zealand Act is exactly identical with this definition, and it was taken from the New South Wales Act. If a man is absent for more than forty-eight hours, the master has definite evidence of an intention on the part of the man to desert, and takes the responsibility of acting accordingly. Where he is satisfied as to the intention of the man, he has not to wait for a period of forty-eight hours to pass. This definition was only included in the clause in deference to a strong request. It is justified by experience; it lends simplicity to the measure; and, to a large extent, it will prevent unnecessary litigation. It is true that it varies from the British law; but, if it is amended as proposed, it may be necessary to borrow other compensating clauses from that law. For instance, section 221 of the Merchant Shipping Act deals with desertion and absence without leave, in this manner -
If a seaman lawfully engaged, or an apprentice to the sea service, commits any of the following offences he shall be liable to be punished summarily as follows : -
If he deserts from his ship he shall be guilty of the offence of desertion, and be liable to forfeit, &c.
If he neglects,or refuses without reasonable cause, to join his ship, or to proceed to sea in his ship, or is absent without leave at any time within twenty-four hours of the ship’s sailing from a port, either at the commencement or during the progress of a voyage, or is absent at any time without leave and without sufficient reason from his ship or from his duty, he shall, if the offence does not amount to desertion, or is not treated as such by the master, be guilty of the offence of absence without leave, and be liable to forfeit out of his wages a sum not exceeding two days’ pay, and in addition for every twentyfour hours’ absence, either a sum not exceeding six days’ pay, or any expenses properly incurred in hiring a substitute ; and also, except in the United Kingdom, he shall be liable to imprisonment for any period not exceeding ten weeks with or without hard labour.
– That is what the Government have provided in clause 96 of this Bill; except that their provision is harder on the seaman than is the British provision.
– It is not exactly the same; but we create a similar offence there. Section 2,22 of the Merchant Shipping Act reads -
If in the United Kingdom a seaman or apprentice is guilty of the offence of desertion or of absence without leave, or otherwise absents himself from his ship without leave, the master, any mate, the owner, ship’s husband, or consignee of the ship, may, with or without the assistance of the local police officers or constables, convey him on board his ship, and those officers and constables are hereby directed to give assistance if required.
– That assistance is not given here.
– No; but we attempt to give a simple definition which will place both parties in the same definite position.
– How would it do to adopt this particular suggestion now, and also to fix a time limit?
– That is just the point I was coming to. Is Senator Symon prepared to add to this definition that absence fora period of twenty-four or forty-eight hours shall be evidence?
– I think that that would be an improvement; because everybody would know then how he stood. If the Minister will accept my proposal, I will gladly make that addition.
– Does Senator Guthrie also accept that?
– I object.
– I thought the honorable senator would object to that. I think the Committee will be wise to accept the definition as it stands.
– I need not be charged with supporting the Government in this matter, because I have always held that if we cannot improve a clause we ought not to attempt to amend it. Perhaps it would be well to continue the debate until the tea hour that honorable senators may have an opportunity to think the matter over. All that has been demanded is included in the definition as it stands. Honorable senators will see that if a seaman or apprentice leaves his ship with the intention not to return, he may be arrested at any time. If the master can prove an intention on the part of the seaman to desert he can have him arrested and brought back to the ship at once. I believe that as the VicePresident of the Executive Council has pointed out, the period of forty-eight hours has been inserted as a definite guide to the masters of ships. It will not be contended that I would favour the interests of masters as against those of seamen. Honorable senators opposite have been very liberal in the matter pf desertion, but in this case they appear to be prepared to reduce the term suggested fo twenty-four hours. The Government propose to give a liberal margin to masters and seamen where there is no direct evidence of an intention to desert. If a man has not returned to his vessel within forty-eight hours it may be presumed that something is wrong, and the master can then take action without having to prove an intention to desert. But the seaman is still given a fair chance, and if he can prove that he had no intention to desert and was prevented from returning to his ship by circumstances beyond his control, he will not be convicted as a deserter. I think it is better to fix a period of .forty-eight hours rather than a period of twenty-four hours, as Senator Macfarlane has suggested. The definition also covers what Senator Guthrie desires. The honorable senator does not wish that deserters from foreign-going ships arriving in Australia should furnish material for the operations of crimpers to the detriment of the seafaring classes in Australia. That is met by the fact that under this definition where an intent to desert can be proved, the seaman can be arrested at once and returned to his ship.
Silting suspended from 6.30 to 7-45 p.m.
Senator Sir JOSIAH SYMON (South cuss this matter from any controversial stand-point, but with a view to adopting the clearest definition for the protection of seamen, shipmasters, and owners. I agree with Senator McGregor that it is desirablethat the matter should be fully considered. If the words “ with the intention of nor returning thereto” governed the whole paragraph, I should have little or no objection to them, although the phraseology is not very clear and might give rise to dispute. I. do not know whether there has beenany judicial decision given upon the section read from the New Zealand Act. I am not aware of any. Desertion under thisdefinition means the absence of a seaman or apprentice from a ship without leave for a period of forty-eight hours, without lawful cause or excuse. The seaman guilty of that is guilty of the very serious offence of desertion which at onetime in England rendered a man> liable to imprisonment. Happily that penalty has been repealed. But desertion renders the seaman liable to the complete forfeiture of his wages and effects, and under this definition he may be held to be a deserter, even though hemay have the intention of returning tothe ship after the forty -eight hours. That is in violation of the law of England. We have a perfect right to make such a new departure, but I beseech the Commitee, in the interests of the seamen, not to do so. If the definition I have suggested were adopted,, we should have the advantage of the Britishdecisions from the time of the great Jurist, Lord Stowell. If the definition is left asit stands, absence without leave for forty.eight hours will constitute desertion. The other alternative is quite independent of that- or any unlawful departure from his ship withthe intention of not returning thereto.
That is unfair to the seamen, and very unfair to the owner. Unlawful departuremeans nothing. There may be desertion, although there is perfectly lawful departure. If a man leaves his ship with permission, he may become a deserter under this definition if he is absent for forty-eight hours. Let me quote from the latest edition of Maclachlan’s Treatise on the Law of Merchant Shipping, the definition of” desertion, according to English decisions, going back very many years. It is substantially as I have put it to the Committee - ,
The offence of desertion consists in the abandonment of the ship by any apprentice or by any seaman lawfully engaged before the termination of his engagement without just cause and with the intention of not returning to the vessel.
The two things must concur, according to the law of England. That is fair in the interests of the seamen. The quotation continues -
If the quitting be without leave or even in defiance of prohibition -
If there is an intention to return, followed by the fact of the return, there is no desertion. I say that seamen should be placed in that position. If the definition be left as it stands in this Bill, a seaman becomes absolutely a deserter liable to all the penalties if his absence extends over forty-eight hours, although he may have the intention to return, and actually comes back to the ship and offers himself. I am sure that the Committee does not desire that. I am sure that ship-owners do not desire the other alternative, which would prevent them insisting, as I think they have a right to do, upon the enforcement of the penalties for desertion if a man leaving with permission says, perhaps the next day, that he has made up his mind not to return. The only proper way in which to regard the period fixed, whether it be a period of twenty-four or forty-eight hours, is as evidence, though not conclusive evidence, of the intention not to return. The magistrate would look at other things, and if he thought there were circumstances which would not justify that inference from the absence, he would not find that the seaman intended not to return.
– The honorable senator means that there might be thrown upon the seaman the onus of proving that there were some reasons for his not returning to the ship within the specified time.
– Suppose he were locked uo?
– Just so. I may give this illustration in support of what Senator Guthrie has just said, continuing the quotation I was previously making -
And if the fact of return is prevented, e.g., in consequence of the hasty imprisonment of the seaman by the master, the law presumes there was the animus revertendi, and it is for the owner or master to rebut this presumption by proof.
That is a fair thing. It would be fair to regard absence, for the period decided upon, without just cause or excuse as evidence, though not conclusive evidence, of an in tention not to return. But, from my point of view, it is not at all necessary that that should be put into the definition. Here, as in England, the magistrates will take very good care that they do not conclude that a seaman has absented himself from his ship without leave and with the intention of not returning, in the absence of proof to that effect. We cannot do better than adhere to a well-ascertained and welldetermined definition.
– In order to emphasize the arguments of Senator Symon, I desire to direct the attention of the Committee to the other provisions df the Bill which relate to desertion, and which constitute an entire departure ‘from Imperial legislation. If honorable members will look at sections 104 and 1:05 of the Merchant Shipping Act they will see that under those provisions a deserter must be proceeded against bv the muster of his vessel. Nobody else can initiate a prosecution. But what does this Bill provide? First, that the name of the deserter shall be posted at the shipping office. That will have the effect of absolutely preventing him from obtaining employment on any other vessel. In the second place, the superintendent of mercantile marine - should it be inconvenient for the master of the ship to do so - is empowered to prosecute. Thirdly, the Crown is called upon to bear the whole of the cost of the prosecution for the benefit of the ship-owner.
– Only if the vessel from which the seaman has deserted has sailed.
– And also if the prosecution takes place within a reasonable time before her departure. What .will probably be the result of such drastic penalties? As we all know, a seaman frequently signs articles for a period of two and a half years. Under the Merchant Shipping Act, he may, during the continuance of that agreement, by means of allotment notes, provide for the distribution of a portion of his earnings. But almost invariably his wages are allowed to accumulate. Legally, he is entitled to nothing until the expiration of his agreement, but the master of his vessel may perhaps advance him five shillings upon Saturday night. If a seaman had £100 due to him, I can quite conceive that the master of the vessel might desire to get rid of him.
– Under_the provisions of the Merchant Shipping Act the earnings of a seaman - in case of desertion - must be returned to the Board of Trade.
– But the honorable senator knows perfectly well how these matters are adjusted. In such circumstances, a -per contra account is always presented. If the sum of £100 were due to a seaman as wages, the master might easily connive to secure his absence from the ship without leave for twenty-four hoars.
– That would not prove desertion. It would be only one factor.
– I would also point out that if a seaman absented himself for twenty-four hours, without leave, and during that period his vessel sailed, it would be impossible to obtain the evidence of the master as to his wages account. Should the seaman manage to ship bv another vessel, the owner of the ship from which he deserted has a right to seize every penny of his earnings until his return to the United Kingdom.
– That ought to prevent desertion.
– It has not had that effect. No act in the criminal code is punished so heavily as that of desertion. I do not suggest for a moment that civil contracts ought not to be respected, but there are occasions when even desertion is justifiable.
– It is not desertion then.
– I mean that it is justifiable in the eyes of the seaman, though not in the eyes of the law. Need I remind honorable senators of the evidence which has recently been given in connexion with the loss of the Loch Finlay off. the coast of Tasmania ? Had I been a seaman upon that vessel, I think that I should have been apt to desert at the first port of call. Upon the testimony of the four survivors, we know perfectly well that the master was not capable of navigating the ship. I do hope that we” shall impose no time limit whatever upon absence by seamen without leave, and that we shall insist upon the intention to desert being clearly established before a man can be adjudged guilty” of desertion. The British Parliament has declared that the punishments which I have enumerated shall be meted out only to men who desert from their vessels when they are absent from the United Kingdom. If we follow that precedent, we shall enact that this definition shall apply only to seamen who desert from ships on the Australian register outside of Australian waters. I may also mention that there is no punishment for desertion in America. I hope that Senator Symon’s amendment will be carried.
– Before proceeding to deal directly with some of the statements of Senator Guthrie, I ask the Committee to consider the difference between Senator Symon’s amendment and the provision which is contained in the Bill. I understand Senator Symon’s proposal to read - “ Desertion “ means the absence of a seaman or apprentice from his ship without just cause or excuse with the intention of not returning thereto.
If the amendment be carried, the honorable senator has affirmed that he will have nr> objection to the addition of the following proviso -
Provided however that absence for a period of forty-eight hours without just cause or excuse shall be prima facie evidence of intention not to return.
– I have not yet proposed the addition of those words. I have no objection to them myself, but I think that the, provision would be better without them.
– In reply to a Question which I put to him,” the honorable senator declared that it would be a fair thing to insert those words. But I wish to point out that there is a vast difference between the amendment of Senator Symon and the views expressed by Senator Guthrie. The latter desires that no time limit . shall be imposed in respect of desertion. _
– My amendment does not impose any time limit.
– It does not as it stands. But before the adjournment for dinner the honorable senator declared that it would be a fair thing to add the proviso which I have already quoted.
– What I said was that if you desired them, I had no objection to the addition of those words. But I think that the definition would be better without them.
– The honorable senator told us that he was in favour of it.
– I said that I had no objection if the Minister wished the proviso to be inserted.
– The definition would not be so objectionable in that form as in the form in which it was originally proposed; but I wish it to be quite understood that, although there is a distinct agreement so far as the earlier part of the clause is concerned, Senator Guthrie intends to propose doing away with the time limit altogether.
– Why should he not, if he objects to it?
– Certainly, I have no objection to his making such a proposal. But if the definition is altered in the way suggested, the effect will be that this particular qualification, which Senator Symon regards as unobjectionable, may ultimately be left out altogether; and then honorable senators will not be satisfied with the definition at all. I ask the Committee to look at the definition as it stands, and to say whether there is any substantial difference between it and what Senator Symon proposes. I have already explained what the difficulty is that we seek to deal with - that it is a fair contention on the part of shipowners that they should know within a limited time how they are to act, so that it may not be competent for a man after forty-eight hours to come back to his ship, and say, “ I had no intention to desert, and I claim the right to be taken back.” As the definition stands, it says that “ desertion “ means the absence of a seaman or apprentice from his ship without leave for a period of forty-eight hours without lawful cause or excuse. There is no desertion if a man is absent for fortyeight hours, unless that absence was without lawful cause or excuse. The element of the offence is “ without lawful cause or excuse.” But frequently men do not hesitate to declare their intention of clearing out, and having nothing more to do with a ship. They pack up their kit, and off they go. Where the captain has evidence of such conduct, it should be competent for him to act at once. If he hears of a sailor who has so declared himself an hour after he has cleared out, and the captain sees that the man’s kit has gone, there is clear evidence of intention not to return. Under those circumstances, the captain should be able to make his arrangements, on the ground that the man has deserted. It is not reasonable or fair where there is absence for twenty-four or forty-eight hours for the captain to be left in doubt. Where there has been substantial absencewe should not throw upon the captain or owner the onus of proving intention to desert. The real element of Senator Symon ‘s proposal is that the captain must prove intention, although a man may have been absent seventy-two hours.
– That is also the provision of the Bill.
-Not at all. If there is a declared intention on the part of the sailor to clear out, and he shows it by taking his goods and chattels away with him, we contend that it is fair for the captain to be at liberty to act at once. That is what the Bill provides, and we are not proposing anything unusual. We take our clauses word for word from the New Zealand Act and the New South Wales Act. This has been the law in New South Wales for a long period, and in New Zealand since 1903.
– It has absolutely failed to stop desertion in New South Wales.
– They see the folly of it now.
– I am not aware of that. My honorable friend, Senator Guthrie, went out of his way to say how unusual and unheard of are the provisions in this Bill with regard to seamen. He incorrectly stated that no such provision as clause 104 appeared in British legislation. As a matter of fact, the clause is taken almost word for word from the Merchant Shipping Act.
– What I said was that in England the law did not apply to the home trade, whereas this Bill makes it apply to the Australian trade.
– Clause 104 is taken from section 230 of the Merchant Shipping Act, which reads as follows -
A superintendent shall keep at his office a list of seamen who to the best of his knowledge and belief have deserted or failed to join their ships after signing an agreement to proceed to sea in them, and shall, on request, show the list to the master of a ship and shall not be liable in respect to any entry made in good faith in the list.
– The effect of clause 104 is to black-list men.
– Our clause is practically the same as the English section.
– In the one case the list is open for public inspection, and in the other it is only open to inspection by captains who apply for it.
– Whether it is desirable to amend clause 104 in detail is a matter which will be discussed when we come to it. But the principle is that there shall be a list of seamen who have deserted. For what purpose? For the purpose of inspection, of course. The other “ unheard of “ clause is taken from section 133 of the New Zealand Act. That section, which compares with clause 105 of this Bill, reads -
When any seaman who has deserted from any ship or has failed without reasonable cause shown, to join his ship or proceed to sea therein, is not arrested until -
after the departure of the ship; or
so shortly before the departure of the ship, that he cannot conveniently be brought to trial prior to her departure ; or
so shortly before such departure that the master cannot be reasonably expected to attend for the purpose of prosecuting him, and producing documentary evidence against him ;
That is to say, the master may have had to clear out in the meantime; in which event in New Zealand the owner or agent of the ship may prosecute. Here we say that the superintendent is to do so. So that if a man is proved to have deserted, it is the duty of the superintendent to see that although the master has had to cleat out, the man who has offended is not to go unpunished.
– This Bill says the superintendent “ shall “ prosecute, whereas the New Zealand Act says that the agent or owner “ may “ do so.
– Suppose that at the forty-ninth hour a man who had been unavoidably detained came down to the wharf, and found that his ship had gone. Would he be a deserter?
– He would be a deserter under this Bill.
– If he was away without lawful cause or excuse he would be a deserter.
– Suppose he was away without leave for forty-eight hours, but with the intention of coming back to the ship ?
– If he is away without leave he must take the responsibility of his conduct. What is the good of his coming back after the ship has gone? The point is the absence without leave or excuse. It is really, however, a matter of detail as to whether the owner or the superintendent is to prosecute. We can deal with that when we come to the clause. But it must not be alleged against these provisions that they are’ unheard of, inasmuch as they are based upon English law in the one case, and upon New Zealand law in the other. The proposal of Senator Symon, with the proviso to which he has agreed, is in substance the same as the Bill provides, except that he wants to alter the term from forty-eight hours to twenty-four. But the objectionable thing is the proposal to turn the clause round. There is no use in altering it purely for the sake of doing so, especially as all that can reasonably be desired may be attained by coming to a division on Senator Macfarlane’s amendment.
– When Senator Symon first submitted the amendment, and said he had no objection to the condition as to twenty-four hours, I hastily formed the opinion that that would bring us back to the starting point. But after listening to the discussion that has since taken place, and also after having had an opportunity of looking more closely into the wording, I have been forced to the conclusion that there is a fundamental difference between the amendment before the Committee and the Bill as it stands. I wish to make that difference clear, as it presents itself to me. In the first place, I take it that there is no difference of opinion as to the definition that we should attach to desertion. If I can gauge the opinions of honorable senators rightly, they consider that desertion - whether there is absence from the ship for one month or for aday - is effected when there is no intention of returning. That, I believe, to be the conclusion at which the Committee has arrived. I wish to show the difference between the definition and the amendment. The definition in the last two lines makes the intention of not returning to the ship the principal element of desertion. That is the main portion of Senator Symon’s amendment. The intention of not returning is to be accepted as proof of desertion. To that extent the definition and Senator Symon’s amendment are at one. Now we come to the vital point of difference. The definition says that if a man is absent for a set period that shall be proof of desertion.
– Absent without cause or excuse.
– That is used in both cases, but I am only taking the points where the terms differ. The definition says that absence for a set period - forty-eight hours - shall be proof of desertion. Senator Symon says “ No. I shall not make it proof, but simply evidence which the seaman can explain or answer.” To my mind, that is a very great difference indeed. To say, because I am absent from my ship for twenty-four or forty-eight hours, that I am guilty, and that sentence shall be passed upon me is one thing. To say, on the other hand, that it constitutes a prima facie case, which I am called on to answer, is another thing. For that reason I propose to support the amendment with the addition suggested. May I point out to Senator Guthrie an advantage which will accrue to the seaman from that addition. If it is not made, it will be competent for the Court, or the owner, to assume desertion ten minutes after the seaman has left the ship. But with a time limit of twentyfour hours provided, I venture to say that both the master and the Court would be slow to move until it had expired. If the magistrate were called upon to deal with a man who had been absent for twenty hours, and the master relied upon that and other facts, the Court would be justified, 1 think, in saying, “ We cannot take absence for twenty hours as any proof of intention to desert, because the law has fixed a time limit. We must discard that as one of the facts brought before us for our consideration. Not until there has been an absence for twenty-four hours can we consider the matter of period of absence at all.” To that extent, I think that it would be a safety to the seaman, and, to some extent, an advantage to him. On the other hand, it seems to me that a period would also be an advantage to the owner. There is a point at which the owner must naturally hesitate as to whether he will take the responsibility of proceeding against an absent seaman for desertion.If a time limit were prescribed, he would naturally say on its expiry, “1 am now in a safer position to go before a Court,” but he would be slow to move until it had expired. I think that, both for the seaman and the ship-owner, it would be an advantage to have the addition setting out some period. Whether this is to be twenty-four or fortyeight hours is a matter of detail, which can be settled later on.
– A remarkable fact which was elicited by the Navigation Commission was that there had been very little, if any, complaint of desertion from coastal ships. It is scarcely known.
– Because, as Senator Guthrie explained, a seaman can leave a coasting ship on giving twenty-four hours’ notice.
– The seamen on our coasting vessels appear to be fairly well satisfied with their position, and the frequency of their visits to port, and the shortness of the notice which they can give, obviate to a great extent the inducement to desertion. We have, therefore, to consider only the cases of foreign-going ships. In nine cases out of ten, perhaps in ninetynine cases out of one hundred, this definition would be applied to foreign-going seamen, if at all. Foreign-going vessels, as a rule, remain in port much longer than coasting ships. We know what Jack is likely to do when he has a considerable sum due to him, and has not been ashore for a long time. In such circumstances it would not be right, I think, to declareas a deserter a man who has been absent from his ship for twenty-four or forty-eight hours. He may “ get on the spree,” and remain in that condition for a week. As the ship is lying in port until her cargo is ready, there is practically very little work for him to do on board, and he may feel at liberty to remain away perhaps a great deal longer than forty-eight hours. In my opinion, it would be foolish to fix a time limit in a case of that kind. On the other hand, in the case of coasting ships, a time limit of forty-eight hours would be altogether too long, because it is very seldom that a coasting boat remains in port for that period. I feel sure that no member of the Senate has any sympathy with desertion. We want to frame a commonsense provision to stop it if possible. But at the same time we do not wish to have a provision which will be harassing to shipowners or seamen. If Senator Guthrie had stood by his first proposal to eliminate the time limit, and to rest the proof of desertion on unlawful absence, it would’ have been quite sufficient.
– That has been the law, and it has proved insufficient. Desertion is rampant.
– I do not think so. If the honorable senator desires to get a proper grip of this question he has only to read the evidence taken at Newcastle to learn that time has little, if anything, to do with desertion, which takes place for reasons other than those which have been advanced. We found that in some instances the masters were anxious to get rid of men because a considerable sum was due to them for wages. In other cases men, believing that they could procure a better job ashore, cleared out. It is only to foreign ships that this definition is likely to be applied. I advise the Government, if they are anxious to lessen desertion in Australia, to eliminate the time period and to leave the definition as suggested by Senator Guthrie, or as now proposed by Senator Symon. I think that Senator Guthrie would have been well advised if he had stood by his own proposal, but as it has been withdrawn I am prepared to support Senator Symon’s amendment.
.- I think that we shall do well to adopt the amendment with the proviso which Senator Best has suggested and to which Senator Symon has no objection. Senator Symon has rendered good service in pointing out to us so clearly the difference between the major offence of desertion and the minor offence of being absent without leave. We should take his advice and follow the English decisions, and not complicate our definition by a hard-and-fast time limit. We ought to meet the practical difficulties which New South Wales and New Zealand have experienced in administering a similar definition, so that a ship-owner may know what to do in regard to an offender, and also his wages. If we adopt the amendment without the proviso desired by Senator Best we shall leave the ship-owner in doubt as to his position.I think that every one must admit that desertion by a sailor is a grave offence. We do not want to be hard upon, or unjust to, him, but it should be remembered that desertion affects the national wellbeing, the great shipping industry, the safety of passengers and also the safety of sailors. We cannot afford to deal too lightly with the subject, and so we ought to make our definition as clear as possible. I see no harm in adopting Senator Symon’s amendment. I think that in regard to the Australian trade a time limit of forty-eight hours is too long, because ships, as a rule, do not remain in port for that time. I quite agree with Senator Guthrie that the question of time has very little to do with desertion. He gave us a rather far-fetched illustration when he put the case of a man who was kept away from his ship by his mates, acting in collusion with the captain, and who had £100 due to him for wages.
– Not kept away by his mates, but by crimps.
– I do not believe that there is a sailor in the southern hemisphere at this moment who has anything like that sum due to him.
– I ask my honorable friend to consider the far more likely case of a man who wants to desert his ship because he desires to change his calling, or because he has fallen in love with a girl. What does he do? He leaves a small and inexpensive kit on board. He tells a male or two that he will be back at such a time on the following day. He tells another mate the same thing in the presence of the second or third officer and sneaks off determined to desert. Is not that a far more common instance than the far-fetched one cited by the honorable senator? I think it is.
– After hearing the announcement, that officer would take care that the man did not get ashore.
– Suppose that a man had applied for six or twelve hours’ leave. He goes away from the ship intending to desert, but he leaves behind him an inexpensive kit, and tells his mates that he will return punctually.
– He also leaves all the money which is due to him.
– At all events, the fact remains that difficulty has been experienced in New South Wales and New Zealand in administering this definition. The Premier of New South Wales announced his intention to cut down the time limit to twenty-four hours, but he declined to alter the framework of the definition. Can the Committee do better than be guided by that State’s practical experience?
– I should not have discussed this question had it not been for a statement made by Senator Dobson, which I am in a position to rebut. That honorable senator said that he did not believe that there was a sailor in existence who had £100 to his credit.
– No, due to him.
– As an employer of labour, I challenge that statement. I have had a man working on my farm who when he left me drew , £140.
– Was he a sailor?
– That does not matter. I am objecting to Senator Dobson’s one-sided view of the matter. I am very pleased on this occasion to be on the side of humanity with my honorable colleagues from South Australia. I do not know much about shipping, but I am able to say that when some farmers wish to dispense with a man’s services, and they hold money which the man cannot secure by law, they make it disagreeable for him to remain. Human nature is about the same the world over, and there are always some men to be found who will take advantage of others. I think we should be prepared to safeguard the interests of the workers.
– I have circulated an amendment proposing the substitution of twenty-four hours for forty-eight hours in this definition. But. I am quite willing to vote for Senator Symon’s amendment, chiefly because it will make our legislation uniform with that of Great Britain.
– No, it will not.
– Very nearly so. I should like, however, to add to the definition as suggested by Senator Symon, the words - “ and absence from the ship without just cause for twenty-four hours shall beprima facie evidence of intention not to return.”
– Why not make that the honorable senator’s amendment?
– Will the Vice-President of the Executive Council agree to that ?
– No ; I prefer to adhere to the definition in the Bill.
– I thought that the Vice-President of the Executive Council would have no objection to accept such an amendment. We have had some highly-coloured statements from the other side of the’ hardships inflicted upon sea- ‘ men in the forfeiture of their wages. I had a little experience of this matter only within the last month. A Norwegian vessel, in charge of a nice old captain, arrived in Hobart recently witha very good crew. He went down to the Huon to load a cargo of timber, and some one got at the men. They said they wanted their wages. The captain was rather foolish, and he drew his money and paid the men a large part of their wages, so that there was hardly a copper left owing to them. I was not surprised to hear that within a week of the men having been paid, they deserted the ship. It was found necessary to get twelve men over from Melbourne at the ship’s expense to replace the runaways, in a really nice well-found ship with which the hands had no fault to find, and which they left merely because they found they could get higher wages elsewhere. If some deterrent is not opposed to desertion of this kind we shall have a good deal of pauper immigration at the expense of the owners of ships trading to the Commonwealth, and it is to be hoped that in that event the owners will not be held liable to any penalty for the introduction of undesirable or pauper immigrants. Am I to understand that the Government are opposed to Senator Symon’s amendment?
– The Government are waiting to see how the numbers will go.
– No, they are not. The Government have declared their intention in this matter.
– The importance of this question justifies the time devoted to its discussion. I have been very pleased to hear that there are few desertions from ships engaged in the Australian coastal trade. One reason given is that the seamen are at liberty to give twenty-four hours’ notice, and there is therefore no need for them to desert. I do not think that that applies to all the ships engaged in the Australian coastal trade, as I understand that the notice must be given at the port where the articles are signed. It is clear the real reason why there are so very few desertions from these ships is that the men employed on them are properly treated. Senator Millen has pointed out a difficulty which I think we are bound to consider. To treat a man as a deserter, simply because he has been a few hours away from his vessel, would be very unfair indeed to him. On the other hand, he might be away for a longer period, and it would be very difficult for the superintendent or master to prove an intention to desert. In my opinion, Senator Millen’s suggestion meets the difficulty in both ways by making the absence without leave for a period of twenty-four hours prima facie evidence of an intention not to return to the ship. I think that, especially in the Australian coastal trade, an absence for such a period would justify a prima facie inference of an intention not to return.
– Suppose a man was absent from Saturday night until Monday morning.
– It is suggested that absence from the ship for twenty-four hours should be regarded merely as prima facie evidence of the intention not to return, and it would be open to the seaman to call rebutting evidence. I think that the definition suggested by Senator Symon, with the addition of the amendment suggested by Senator Millen, would give a definition of desertion which would do justice all round.
Amendment agreed to.
Amendment (by Senator Sir Josiah Symon) agreed to -
That the words “ leave for a period of fortyeight hours without lawful cause or excuse or any unlawful departure from his ship,” lines 33 to 36, be left out.
Amendment (by Senator Macfarlane) proposed -
That the following words be inserted after the word “ thereto,” line 36 : - “and absence from the ship without just cause for twenty-four hours shall be primd facie evidence of intention not to return.”
Senator Sir JOSIAH SYMON (South Australia) [8.53]. - I said that T. thought there was not much advantage in the interests of seaman and ship-owner that the proposed addition to the definition should be made. But I do not think so now. What Senator Millen has pointed out has made it clear that the addition proposed would, I think, ‘be a distinct improvement.
– I hope the Committee will leave out the limit of time. The proposal is really to make an offence already punishable in a certain way carry a much greater punishment than is now provided for. It is like saying that a man who has committed a paltry crime shall, if he does not deliver himself up to justice within twentyfour hours, be charged with murder.
– It is not to be conclusive at all.
– It is proposed that an absence of twenty-four hours shall be regarded as prima facie evidence that the seaman intended to desert, and in practice that will be found conclusive enough. A seaman may leave after his work is done on Saturday night and go into the country until Monday morning. Something happens on the Sunday, and the master says, “ Why were you not here on Sunday?” The seaman might reply, “ I went to visit some friends in the country.” He is taken to Court, and, although he came back to the ship, there is prima facie evidence that he intended to desert.
– The absence must be without just cause.
– A desire to visit Ballarat might not be regarded as a just cause for the man’s absence.
– If this addition be not made, the master will still be able to proceed against him for desertion.
– No. He must prove intent to desert.
– Not if the seaman returned to his ship twenty-five hours after his departure from it.
– The case which has been quoted by Senator Macfarlane isindeed an extraordinary one. I have never heard of a crew engaged upon a foreignvessel being paid their wages in full in Australia. The master of a foreign shipinvariably has a considerable sum of money in hand belonging to his ‘seamen. I would’ further remind the Committee that a seaman does not ship in Great Britain for Australia without any belongings whatever. His kit is worth something. If he intends to desert he will naturally endeavour to obtain his belongings. That, in itself, is a very .difficult matter because the officers of the ship are always on duty, and, in addition, he would have to run the gauntlet of a watchman, a Customs House officer, and the police. We must also recollect that should he be detected in the act of remov-ing his kit, it would be clear proof of his intention to desert. All these circumstances in themselves must act as a strong deterrent, and to say that a seaman who absents himself from his ship without leave for a certain number of hours shall be guilty of desertion, is absolutely wrong. Who is to prove the question of intent? What would happen, if a seaman declared: “I went ashore for a few hours not knowing when the vessel would sail, and when I returned’ to the wharf she was gone “ ?
– If he did” that, he would not be a deserter.
– But the onus of proving, that he returned ‘ to the wharf shortly after the ship had sailed would’ be thrown upon him.
– It would have to be in any case.
– No. The onus of proving intent to desert should be on the prosecutor.
– Do vessels proceed to sea without giving notice of their intention to sail?
– A vessel cannot leave port in half-an-hour. She cannot get her papers.
– No papers are necessary in the case of ships engaged in the coastal trade. Foreign-going vessels generally obtain their papers twenty-four hours, and sometimes two and three days before they sail. The captain finishes his business on shore, a tug happens to be handy, and the vessel sails within a few hours. It frequently happens that seamen engaged upon colliers trading to Newcastle are left behind at that port.A man is often told that his ship will not sail before a certain time, but the loading is unexpectedly completed at an earlier hour, and when he does not turn up prior to her departure, a substitute is taken on who has to be paid double wages. The margin of difference has to be made up by the seaman himself upon the return of the vessel. It will thus be seen that he is penalized in every possible way. When we come to deal with the provisions of the Bill relating to desertion, I shall be prepared to make the lot of deserters as hard as possible. I recognise that deserters from over-sea ships come here primarily to compete against the men who are engaged in our various industries. They constitute no gain to the Commonwealth so far as immigration is concerned. They form an undesirable class, and we have to incur the expense not only of prosecuting, but also of maintaining them in prison until the completion of their sentences. By all means let us put desertion down as much as possible, but do not let us attempt to achieve our object by adopting the amendment.
– It seemsto me that Senator Guthrie entertains a most extraordinary view of the proposed addition. He appears to think that it lays some additional obligation upon the sailor. I say that it will provide a distinct safeguard to the sailor. Its object is to declare that absence from a vessel for twenty-four hours shall beprima facie evidence of the intention to desert. Now I wish to put the reverse side of the case to the Committee. It necessarily follows that absence for a lesser period than twenty-four hours shall not be construed as evidence of intent to desert.
– No, no.
– If Parliament decrees that absence for a period of twentyfour hours shall be construed as proof of intent to desert, it seems to me that absence for a lesser period must necessarily be construed as pr oof in the other opposite direction.
– Suppose that a ship were timed to leave port twenty-four hours after a stated period, and that a seaman did not turn up until three hours later? Would he not be considered a deserter ?
– Thequestion put by Senator Findley answers itself. The very fact that the seaman put in an appearance at all would answer the charge that he was a deserter. Of course, if it could be shown that he had carefully watched from the top of a hill until the vessel had departed, the position would be different. If in this Bill we affirm that twenty-four hours’ absence from a vessel shall be regarded as evidence of intent to desert, the Court will naturally say : “ We are not to take notice of any lesser period as a factor which the sailor is called upon to answer.”
– So far as the element of time is concerned?
– I should like to know whether the twenty-four hours’ absence contemplated would start from the conclusion of the day’s work–
– From the time when the seaman left his ship.
– In actual practice men work on board ship in port until 5 o’clock in the evening. If a sailor had no intention to desert, but simply went ashore after 5 o’clock, he would have been gone about fifteen hours before cognizance would be taken of his absence. That is to say, it would not be recognised that he was absent until 8 o’clock next morning, when work would be recommenced. He would then have only nine hours in which to realize his position as a deserter if he remained away more than twenty-four hours. Suppose that in the meantime he had “ gone on the spree,” or got amongst friends, or strayed into the by-ways of the city. A period of nine hours might be insufficient for him to realize his position. The period is altogether too short. I should not be inclined to give a man five minutes in case of an intention to desert. The trouble is to find out what is desertion by intent. I point out also that a sailor is placed in a much worse position by its being assumed that there is a prima facie case against him when he is charged with desertion. In that respect the twenty-four hours’ provision is unfair. Instead of its being in favour of a sailor, the effect will be to narrow his liberty very much, and it will certainly reduce his chance of making out a reasonable case.
– The effect of the proposed twenty-four hours’ limit will be to supply prima facie evidence of a sailor’s intention to desert his ship. Say that a vessel comes into port, and that the men knock off work at 1 o’clock on Saturday. A sailor goes on shore and stays there on Saturday night and all Sunday. He can be arrested if he is met in the street on the Monday morning, although his intention may be to return at once to his ship.
– Only if he is absent without just cause or excuse.
– He may have left the ship without leave. The proposal is to treat a seaman differently from any other working man. When a ship comes into harbor, and is anchored or tied up to’ a wharf, a sailor is not obliged to ask permission to go ashore. I never did, and would never think of doing such a thing. If I wanted to go ashore when my ship was tied up I would do so. A man who did what I have described might be met in the street on the Monday morning by the mate. Why should there be prima facie evidence that he was a deserter under such circumstances? Why should he be called upon to prove that he had no intention to desert ? He may have had a few shillings in his pocket, and may have got drunk. Sailors do get drunk, just as other people do. Why, if he is on his way to his ship on the Monday morning, should he be liable to be arrested and called upon to prove that he is not a deserter ? A sailor knows practically nothing of the law, whilst possibly the skipper who prosecutes him may be represented by a solicitor.
– Does the honorable senator think that any skipper would do such a thing if he found a sailor on his way back to the ship on the Monday morning? That would be conclusive evidence that he had no intention to desert.
– The man may be met in a street that does not lead back to his ship. I do not object to the captain being called upon to prove a man’s intention to desert, but I do object to absence for a period being regarded as prima facie evidence of intention to desert.
– Has not the honorable senator any belief in the justice of our Courts ?
– The onus of proof ought to be upon the person making the charge. No other working man is treated as a sailor is treated. If any other working man was engaged under an agreement, knocked off work at 1 o’clock on Saturday, and did not appear at work on Monday morning, he could not be arrested and locked up. As long as a ship is in a safe position, securely at anchor or tied up to a wharf, there should be no more punishment for a sailor who goes ashore for a few hours than for any other working man who fails to turn up at work exactly at 8 o’clock on Monday morning.
Question - That the words proposed to be inserted be inserted (Senator Macfarlane’s amendment) - put. The Committee divided.
Majority … … 1
Question so resolved in the affirmative.
Amendment agreed to.
– I desire to draw attention to an apparent contradiction between the definition of discharge and clause 55. The definition reads - “ Discharge “ means the certificate of the discharge of a seaman from the last ship in which he served.
If honorable senators will refer to clause 55, they will see that there the word “ discharge ‘ ‘ refers to a ship from which a seaman is about to be discharged. I suggest to Senator Best that the definition is not required. It does not find a place in the Merchant Shipping Act.
– I do not know why the Government included in this clause an interpretation of the word “ discharge,” because it is provided in the Bill that a man shall be discharged and shall receive a discharge - for which he will pay - from every ship that he leaves. When a man talks of his “ discharge,” he means all his discharges, perhaps thirty or forty. According to this definition, a discharge will only mean the discharge which a man has obtained from his last ship. In clause 55 it means something else. There it means that the master of the ship which he is leaving has to deliver up, not his last discharge, but all the discharges which he has belonging to the man.
– I think that that is the provision in the British Act.
– Yes; but in that Act there is no definition of “ discharge.” This definition refers to only one discharge - the man’s last discharge. But clause 55 compels the master of a ship to return to a man all his previous discharges when he is being discharged. Now, those previous discharges are not. discharges within the meaning of the definition. If a definition is wanted, it should read in this way - “Discharge” means a discharge from any ship.
I am aware that the draftsman’s idea in providing this definition was that no man should be enabled to ship unless he produced his last discharge. Later on, we shall be called upon to deal more elaborately with the question of discharge. The master of a ship is bound to give a discharge to an employe when he is leaving, or at the termination of his articles.
– Suppose that he had a dozen discharges from previous ships, and had deserted the last ship?
– Under this definition, not one of those discharges would be of any use. A man may get a bad dis charge because of some pique on the part of the master, and be unable to get employment on another ship because he is prevented by the Bill from making use of probably twenty or thirty years’ discharges, although every one of them is marked “very good.” He can only present his last discharge, which is a bad one, and which no master will accept. Is not that an injustice to the man? What is aimed at by the definition is to prevent a man from making use of twenty or thirty years’ certificates of good conduct ana good ability, because some person has taken a set against him, and given him a bad discharge. Such cases have happened, and are likely to recur, if this definition is enacted. In my opinion, the Minister will be well advised to alter the provision so as to make “ discharge “ mean the certificate of discharge of a seaman.
– It would be better to strike out the definition than to do that.
– Perhaps there is a necessity to define “discharge.”
– If it is altered as the honorable senator has suggested it will be no definition at all.
– It will be clear that the word means a certificate of discharge.
– What else could it mean ?
– I do not think that the definition should be deleted. It should include the discharges from all the ships in which a man has sailed.
– They are not negotiable.
– Generally, a shipmaster wants a man’s last discharge.
– A master can take a man with a previous discharge.
– If, for some reason or other, Iget a bad discharge from a ship, but have twenty years’ good discharges in ray possession, they are of benefit to me under the existing law.
-Colonel Cameron. - There is nothing to prevent the honorable senator from showing to a master the other discharges.
– But under this definition they are not to be considered discharges at all.
– How does the honorable senator wish to amend the definition ?
– I do not know. I think that the best thing which the Minister can do is to omit the words, “ from the last ship in which he sailed.” If that alteration were made, the definition would mean something. Later on, the Bill deals with the discharge of seamen. I hold that if we retain the definition as it is, no man will be discharged until he receives a certificate of discharge. There is also provision made as to the form which the discharge shall take; but if we retain this definition, it will mean that a master will not discharge a man simply because he has signed him off the articles.
– Strike it out.
– It will be necessary to make provision for a discharge to be given when a man signs the release from a ship.
– -That is all provided for.
– To some extent it is.
– No; altogether.
– I do not know that there is much need for this definition at all.
Senator Sir JOSIAH SYMON (South Australia) [9.33]. - I suggest to the Minister that he should leave out the definition, because the whole thing is provided for in division 9 of Part II. There can be no mistake about what “discharge” means. Clause 55 provides -
When a seaman is discharged from any ship ….. the master shall sign and give the seaman, in’ the presence of the superintendent, a discharge in the prescribed form.
It must be a written document. The clause continues -
When a seaman is discharged …. the master shall sign and forthwith send to the superintendent a discharge of such seaman in the said form attested by some witness.
It is clear that it is to be a written document. There can be no other evidence of the discharge except the certificate. I think that we had better leave out the definition.
– I find that this definition was taken from the New South Wales Act. Division 9 of Part II. deals with the discharge of seamen, and the obligation is cast upon a master when he is discharging a seaman to sign a form of discharge. I do not think that there is any inconsistency between the definition and that clause.
– If the Minister will look at clause 63 he will see that penalties are provided for giving a false certificate. The whole subject is thoroughly dealt with.
– That deals with a certificate of character.
– Conduct, qualification, and character.
– It deals with conduct as well as qualification. First of all, the obligation is cast upon the master to give a discharge. That is a discharge from the last ship in which the man served ; but it is possible that upon joining that ship the man had delivered up the discharges which he had received from previous ships. So clause 55 provides that when a man is leaving his last ship his previous discharges, if any, must be delivered up to him.
– Where does it say that?
– Sub-clause 3 reads -
When discharging a seaman the master shalt return to him all his previous discharges he has in his possession.
– The definition of “discharge” does not help the Minister there at all.
– It is not inconsistent.
– It is unnecessary. It does not help in any way.
– I think it does.
– In which clause does it help ?
– In clause 57, which says -
No person shall give to any seaman a discharge which falsely indicates the capacity in which the seaman actually served.
That means his discharge from his last ship.
– The definition does not help the clause.
– Yes, it does. It might be a previous discharge which he had.
– In that clause the words “ a discharge “ mean any discharge.
– That means the last discharge. Whenever a man leaves a ship he gets a discharge. The definition contemplates that when a man joined his last ship he gave up his previous discharges.
– It is not called a discharge in the definition, it is something else.
– It was a discharge when it was given.
– Does not the Minister think that the definition is unnecessary ?
– It is not inconsistent.
– The Minister is trying very hard to find an excuse for the definition, but he has not succeeded.
– He is like the good man struggling with adversity.
– This definition was found necessary in the Act from which it was taken. I have not the advantage of the draftsman’s presence to ascertain its purpose. I do not like hastily to agree to its deletion without being advised on all sides, particularly by the draftsman, as to the reason for its inclusion in the clause. I shall discuss the matter with the draftsman, and, of course, if there is no necessity for the definition I shall take some opportunity of saying so.
– Oh, strike it out.
– No. I do not think that it should be struck out. If my honorable friend were sitting here he would not say that.
– I should consent at once to its omission.
– I know all about that. The use of the words may be more important than at present appears.
Senator Sir JOSIAH SYMON (South Australia) [9.40]. - The certificate of discharge means the certificate of discharge from the last ship, and that only. If honorable senators will look at clause 58 they will find that it provides that -
The superintendent shall test every discharge made before him. “Discharge” there means the certificate of discharge of the seaman from the last ship with which he served.
– I am afraid that there is a good deal of room for misapprehension in the definition given of “ Passenger.” The definition in the Bill is - “ Passenger “ means any person other than the master and crew, or the owner, his family, or servants, carried on board a ship with the knowledge or consent of the owner, agent, or master thereof.
I remind honorable senators that guests are often carried on board vessels.
– Surely they would be passengers.
– I do not think so. They are carried free, whilst passengers have to pay a fare. From the wording of the definition it is difficult to say whether the words “ his family or servants” refer to the owner or the passenger. I should be glad to have some explanation of the definition.
Senator Sir JOSIAH SYMON (South Australia) [9.43]. - The Vice-President of the Executive Council might help the Committee with a little light on this matter. It seems odd that the family or servants of an owner should not be regarded as passengers on board a ship. Why should they not be included in the list of passengers ?
– They have not the same rights as passengers.
– Why should they not?
.- -The servant of the owner should be on either the passenger list or the crew list, and so should the members of the family of the owner. In my opinion, the owner, if on board, should also be on the passenger list. I direct attention to the closing words of the definition - carried on board a ship with the knowledge or consent of the owner, agent or master thereof.
From this it would appear that if a son or a servant of the owner of a ship was a stowaway on board, he could not be prosecuted as such. I think the words “ or the owner, his family or servants” should be left out. Let us consider the case of a ship belonging to one of our six companies. I suppose that every one holding scrip in Howard Smith and Company would consider himself a part owner of every ship owned by that company. It is opening up a big question to exclude from the passenger list the owner, his family or servants. What are the passenger list and the ship’s articles kept for if it is not to enable persons on board to be traced in the event of an accident to the vessel? If the owner, his family or servants are on board a vessel and she is lost, there may be no record of their having been on board if their names are not included in the passenger list.
– I move -
That the words “ or the owner, his family or servants,” lines 42 and 43, be left out.
I cannot imagine how these words got into the definition, which is not taken from any Act in existence.
– Yes. It is taken from the New Zealand Act.
– Then the marginal note might have told us so. There is nothing in the marginal note to indicate that this definition was taken from the New Zealand Act. I think their insertion in that Act a blunder. Who is going to define what is meant by an owner’s “family” ? It might be held to include every person invited on board the ship by the owner. Why should we say that the owner’s servants are not passengers, or even that the owner himself is not a passenger. I do not think it is worth our while to argue the matter at any length.
– I do not think that to introduce amendments in this way is quite fair to me. I have asked honorable senators to extend to me the courtesy of circulating any amendments which they intend to propose. This is an intensely technical Bill, andI should be given a full opportunity to consider any important alterations proposed. I can only say at present that the words which are objected to in this definition are to be found in the New Zealand Act. That Act provides that - “ Passenger “ means any person carried in a ship, other than the master and crew, and the owner, and his family andservants.
– And the Government have added the words “ with the knowledge or consent of the owner, agent, or master thereof.”
-That is so. Generally the reason for the adoption of this definition is because of the difficulty which the Courts have from time to time encountered in deciding what constitutes a passenger. There are many cases dealing with this question.
– If the words objected to are left out, every one on board a ship will be a “ passenger “ if he does not belong to the crew.
– The amendment would make the definition more clear.
– I think not. I think it would add to the difficulties which the Courts have had in deciding what constitutes a passenger.
– A memorandum has just been handed to me, in which my attention is drawn to the fact that section 267 of the Merchant Shipping Act contains a definition of “passenger” very much in accord with that in this Bill. In the circumstances, so far as I am concerned, I shall be content with the honorable senator’s promise to take the definition into consideration later, with a view to an alteration if any amendment should be found necessary. Section 267 of the Merchant Shipping Act reads -
For the purposes of this part of this Act, the expression “passenger” shall include any person carried in a ship other than the master and crew, and the owner, his family, and servants -
– Surely we are not to adopt the provisions of the Merchant Shipping Act without alteration?
– Senator Turley does not see that I am making an explanation, admitting that there is more justification for the wording of the definition which appears in the Bill than I thought there was at first. I have made the explanation in fairness to the Vice-President of the Executive Council.
– I am very much obliged to Senator Pulsford. As the honorable senator has pointed out, the definition proposed in this Bill is to be found in the Merchant Shipping Act, which has been followed in the New Zealand. Act; and, as I have already pointed out, it has ‘been adopted chiefly because of the difficulties experienced in the Courts in deciding what constitutes a passenger. The position is practically the same as on land, and for this purpose the servant is practically the licensee of the master.
– Does the honorable senator mean to say that he would apply the same argument to a railway ?
– Would the honorable senator describe the members of the family of an engine-driver as passengers?
– We are dealing herewith the proprietor of a ship.
– I think the honorable senator would do well to report progress, and consider the matter tomorrow.
– I have no objection todo so. Honorable senators must admit that it is very difficult for me to deal with technical questions of this kind without notice. I hope that they will do me the courtesy of circulating amendments which they intend to propose. If they do, they will save a great deal of time.
– We cannot be tied down to circulating amendments.
– Not verbal amendments.
– This is not a verbal amendment, but a radical amendment, involving a technical matter.
– Was the. last amendment adopted by the Committee circulated ?
– Senator Macfarlane’s amendment was circulated, but others were not, and I think it was most unreasonable that they should have been proposed without notice.
Senate adjourned at 9.58 p.m.
Cite as: Australia, Senate, Debates, 7 October 1908, viewed 22 October 2017, <http://historichansard.net/senate/1908/19081007_senate_3_47/>.