3rd Parliament · 3rd Session
The President took the chair at 2.30 p.m., and read prayers.
page 889
Advertisements in Press.
– I beg to ask the Minister representing the PostmasterGeneral, without notice, a question relating to an answer which he gave tome during last session. On the 3rd June, 1908, as reported in Hansard, at page 11865, I drew his attention to the fact that in certain daily newspaper’s long advertisements were being inserted concerning alterations, additions and dis-connexions in connexion with the telephone system, in addition to the issue of the monthly supplement by the Department. I asked the honorable gentleman as to the cost, and also as to whether similar advertisements were appearing in all the States, and after giving information as to the cost, he said -
Instructions have been issued tothe Deputy Postmasters-General in the several States to discontinue advertising the additions and alterations in newspapers,and to revert to the system of issuing monthly Supplementary Lists.
In reply to a further question by Senator Mulcahy, the Minister said -
In order that all subscribers may know what new subscribers have become connected with the exchanges, it is desirable that the additions should be published early. Hitherto that has been done by issuing supplementary monthly lists. It was considered, however, that it might be better to advertise the additions in the daily newspapers. The result has not been satisfactory, and it is intended to revert to the old system.
I now desire to ask the Minister whether he is aware that the Sydney Morning Herald of the 3rd October, contains an advertisement, occupying more than half a column, of a similar character to those which were then objected to by me, and which he promised would be discontinued ?
– I am not personally aware that such an advertisement has been inserted in the Sydney Morning Herald, but I shall have inquiries made of my honorable colleague, and if the honorable senator will mention the matter on another occasion I shall be very pleased to furnish him with any information that I may have obtained.
page 890
– Understanding order 93, and in reference to a motion on the notice-paper for to-day, I desire to ask Senator Colonel Neild, through you, sir, if he is the leader of the Opposition, and, if not, whether he has obtained the consent of the leader of the Opposition to give notice of the motion.
– Order ! That is not a question which the honorable senator is entitled to ask.
– By permission, sir ?
– I am not going to allow such a question to be put.
page 890
– I desire to ask the Minister representing the PostmasterGeneral, without notice, the following questions : -
asked the Minister representing the Postmaster-General,upon notice, will the wireless telegraph station proposed to be erected on the coast of Western Australia be placed on the mainland at or near Fremantle or on Rottnest Island?
– The intention is to place the station referred to on the mainland?
– The replies which . were given to the honorable senator last session were furnished to me by the Post and Telegraph Department, as were also those given yesterday. I should like to have an opportunity, as would no doubt my honorable colleague, to observe the inconsistencies - as they seem to be to the honorable senator - to which hehas referred. I, therefore, ask him to give notice of the questions.
page 890
– I beg to ask the Vice-President of the Executive Council, without notice, if he will ask the law officers to advise and report to the Senate, next Wednesday, or at any convenient time, whether under the Constitution this Parliament can pass a Bill to put a stop to the stealing of gold, and, if so, whether Ministers will introduce, a Bill for that purpose? He will recognise the advisability of getting a uniform and strong Act for the Commonwealth, If that be possible.
– In the first place I am rather afraid that it would be stretching the terms of the Constitution to introduce such legislation as my honorable friend has suggested, and in the second place I remind him that it would be most unusual, and certainly against the practice of Parliament, to ask the Attorney-General to give opinions except on cases as they arise.
page 890
Report (No. 2) presented by Senator
Henderson and read by the Clerk.
page 890
The Clerk laid upon the table the following paper : -
Return to Order of the Senate of1st October, 1908 -
Wireless Telegraphy, Installation of; Specifications of Plant, &c.
page 890
President of the Executive Council, upon notice -
When will the new and complete Customs Guide to the existing tariff be made available to the public?
Is he aware that great difficulty and delay is occasioned owing to the absence of the Guide in question?
– The answers to the honorable senator’s questions are as follow : -
page 891
asked the Vice- president of the Executive Council, upon notice -
Is it the intention of the Government to introduce a Bill to amend the Patents Act to provide that those who take out patents in Australia shall also manufacture the patented articles in the Commonwealth?
– If time and opportunity permitted, the Government would be pleased to introduce such a measure, and, if possible, have it carried into law.
page 891
asked the VicePresident of the Executive Council, upon notice -
Is it the intention of the Government to introduce a measure this session for the purpose of acquiring control of lighthouses, harbor lights, and buoys?
– Yes; so far as we have power under the Constitution ; but not necessarily as to harbor lights and buoys only.
page 891
Motion(by Senator Colonel Neild) agreed to -
That there be laid upon the table of this Senate a return showing -
The number of officials employed, and the total salaries paid in the Customs Department, Sydney, and at Newcastle respectively.
The same information regarding the Cus toms Departments at Melbourne, Brisbane, Adelaide, Perth and F remantle, Hobart and Launceston, respectively.
The total sums received in duties at each of the above-named ports during the year ending 30th June last past.
page 891
In Committee(Consideration resumed from 7th. October, vide page 837):
Clause 5 - “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 : “Answer questions” means that the person on whom the obligation of answering questions is cast shall, to the best of his knowledge, information, and belief, truly answer all questions on the subject mentioned asked by an official : “Go to sea” includes the getting under way for the purpose of going, to sea, plying, or running of a ship : “ Harbor “ means and includes harbors properly so called, whether natural or artificial, estuaries, navigable rivers, piers, jetties, and other works in or at which ships can obtain shelter or ship and unship goods or passengers, and haven, roadstead, channel, or creek :
Upon which Senator Clemons had moved by way of amendment -
That the words “ or the owner, his family or servants,” lines 2 and 3, be left out.
Question - That the words proposed to be left out be left out - put. The Committee divided.
AYES: 22
NOES: 8
Majority … … 14
AYES
NOES
Question so resolved in the affirmative.
Amendment agreed to.
– The question before the Committee is, I take it, the adoption of the definition of “ Passenger” as amended, and I think it will be possible on that question to reverse the vote just given. You, sir, put the amendment rapidly, as you had a perfect right to do, but when it was being put, I was speaking to Senator McGregor, and was waiting for something to be urged in support of the amendment from the other side.
– It was all urged last night, when the amendment was carried on the voices.
– The honorable senator must not say that. The amendment has now been carried inadvertently. I frankly admit that I did not rise when it was put, as I should have done, if I had not supposed that something would have been said in support of it. I take advantage of the question now before the Committee, to give honorable senators certain information in regard to the matter. With a very slight alteration the definition of “ Passenger,” as it stands in this Bill, is taken from the Merchant Shipping Act.
– Where the conditions are entirely different.
– And the purpose is different.
– Where the conditions in regard to all ships other than coast trade ships are exactly the same.
– No.
– The honorable senator must pardon me. We do not attempt by this measure to alter the law of Great Britain in regard to other than coasttrade ships. The law dealing with passengers, as expressed in Part III. of the Merchant Shipping Act, will still obtain in respect to all but our coast-trade ships. Where we deal with passengers, our proposals are strictly confined to that trade. The definition in the Merchant Shipping Act is -
The expression “passenger” shall include any person carried in a ship other than the master ;md crew, and the owner, his family, and servants -
– For the purpose of a particular part of the Act.
– For the purpose of “ passengers,” and we are now dealing only with passengers.
– No; passengers in certain ships.
– That is the British definition for the purpose of dealing with passengers, and, as I have already pointed out, we do not attempt to alter the British law in this respect, except in regard to our coast-trade ships. I say that without any reserve or qualification.
– Does the honorable senator mean to say that in the case of foreign-trade ships it is not proposed to survey a ship carrying less than twelve passengers ?
– I say that the British law in this respect, as affecting foreigngoing ships is not altered by the provisions of this Bill. We have added to the definition which I have just quoted from the Merchant Shipping Act, certain words which we think it desirable to include in the definition, in order that it may be made quite certain that stowaways cannot be regarded as passengers. We have added to the definition in the Merchant Shipping Act the words - carried on board a ship with the knowledge ot the. consent of the owner, agent, or master thereof.
There are sometimes as many as twelve stowaways on a vessel, and as certain obligations are cast upon the owner to provide certain air space, and so forth, for passengers, it would be most unreasonable to regard stowaways as passengers, because they are on , board the vessel without the knowledge or consent of the master or owner. The definition we have adopted, with the exception of the addition to which I have just referred, is to be found word for word in the New Zealand Act. I am asked why the owner and his family and servants should be excluded from the passenger list. It is proposed that they should be excluded for very obvious reasons. When an owner goes on board a vessel with his family and servants, his relationship to his servants is regulated by the law relating to masters and servants. He incurs a direct liability to them under quite a different law from the Navigation law.
– That applies also to a passenger who takes- a servant on board.
– Not at all. That is where my honorable friend is in error. I quote the following definition, given by a British Court- -
The payment of a fare would appear to be a necessary incident for the constitution of a passenger.
That is the very basis of it. “ If a passenger comes on board a vessel with his servant, that servant must be paid for in the’ usual way, and is, of course-, also a passenger. It is perfectly clear that where an owner, by reason of his ownership, takes a servant aboard a vessel he does not pay for that servant.
– That is mere assumption. If a man were a joint owner of a vessel the chances are that he would pay a fare for his servant.
– If he did so the servant would at once become a passenger.
– But under this provision the owner and the servant would be exempt from the definition of “ passenger.
– I am not putting anything new before the Committee. I am merely talking of what is the British law to-day. This is not a matter about which we can quibble or theorise ; it is British legislation. If an owner goes aboard a vessel and pays a fare for his servant, that servant immediately becomes a passenger. If he takes his servant on board by virtue of his ownership, so far as the servant is concerned, an entirely different contract exists between them.
-If a ship were full of passengers could an owner, by reason of his ownership, take his family and servants on board?
– An owner has no right to infringe upon the passenger space. If he were to displace some passenger as the result of doing what Senator McGregor suggests, he would render himself liable to a prosecution. But an owner cannot have obligations as against himself. Hence if is that under British legislation he is exempted from the definition of “ passenger, “ In addition, we have to recollect this fundamental feature of the law : that when an owner, by virtue of his ownership, takes his family or his servant on board they become mere licensees, and as such they have not the remedies which other persons would have against him. In the same way, if the guest of a private citizen meets with an accident, he has no remedy against his host unless the latter was aware of the danger which he should have not failed to disclose to his visitor.
– Then if a vessel foundered at sea, and boat space were rushed, the owner and his family would simply be dropped overboard?
– If the passenger space were exceeded by reason of an owner going aboard his vessel he would render himself liable to a prosecution. The Victorian Act contains precisely similar words to those embodied in the Merchant Shipping Act.
– Because they were copied from that Act.
– They appear there as the result of much thought and consideration.
– But we are not slavishly following the English Act.
– No, but I have pointed out the fundamental reason why the owner and his family and servants should be exempted from the definition of “ passenger.” They are governed by a different law, and possess entirely different rights. The words used in the Merchant Shipping Act were inserted for the purpose of putting an end to the cases which year after year came before the Court as to who were passengers and who were not. Under these circumstances, why should we take a retrograde step by adopting a definition which is obsolete, which has been the cause of much litigation, and which- would be productive of litigation in ‘the future? To depart from this fundamental feature of British law in regard to the definition of “passengers” would be serious folly. In the Bill now under consideration, the portion which relates to passengers will be found in Part V., page 65, commencing with clause 265. There we distinctly declare that “‘the regulations may, in regard to ships engaged in the coasting trade, prescribe any matters or things necessary or convenient for regulating the carriage of passengers generally.”
– One of those matters is discipline. If an owner, his family, and servants are not to be included either amongst the crew or the passengers, under whose discipline would they be?
– A servant would be under the discipline of the owner. Further, it is a generally accepted principle that everybody on board a ship is subject to the discipline of the master. That is inherent in the position.
– It is the common law.
– It must be so in the very nature of things. If the arguments of Senator Millen were worth anything, it would apply with equal force to a stowaway. He might just as reasonably affirm that a stowaway would not be subject to any discipline. In regard to our own ships, we propose to re-enact certain sections of the Merchant Shipping Act, which will have a limited application. The provisions of these sections are set out in Part V., clauses 265 to 276. They are totallyinapplicable to an owner, his family, and his servants. I frankly admit that I was engaged in conversation for a few moments whilst anxiously waiting for some honorable senator opposite to address himself te the amendment which has been carried, and that the question was put without my knowledge.
– We did not desire to waste time.
– My honorable friend is most -considerate upon this occasion. In view of the explanation which I have made, honorable senators will recognise that it would be a very serious mistake to alter, except as I have indicated, the British law - which is applicable in this country - in the way that is proposed.
– I propose to support the definition as it now stands. One reason which has determined me to do so was the answer which the Minister gave to the query I put to him. just now. To my mind every person on a ship must be absolutely under the discipline, that is the control, of the captain. I observe that the Bill provides for the issue of regulations with regard to the discipline of passengers, and other portions provide, ‘ as they necessarily must, for the captain to have ample authority over the crew. But the Minister seeks to have a class of persons on board ship who would not be under discipline at all. They would be legally on board the ship but not under discipline. The Minister’s answer to that contention is that by the necessity of the case and by custom they will be under the discipline of the master. Exactly the same thing applies to passengers. If hi’s argument is sound it is not necessary to give power to provide for the discipline of passengers, because he says that that necessarily follows from the circumstances of the case. If it is an inherent power in the captain to exercise authority .over passengers it is not necessary to put in the Bill a provision for that purpose. But the Minister shows that it is necessary, because he seeks power to make regulations giving the captain ample authority over passengers. I contend that the captain must have that authority over every person on his ship. It seems1 to me that the real object of the exemption which has been struck out was possibly to save ship-owners a few shillings. I venture to say that in the great majority of cases when an owner of a vessel goes on board with his family and servants he is only a part owner, and the chances are that if he did not pay for their passages the cost would be debited to his private account in the shipping office. What would be saved if the words remained? Certain tolls and fees which are collected at some ports - in the Suez Canal for instance - would be saved if such persons were not entered on the passenger list of the ship. I see no other advantage to be obtained. I cannot see why we should make an exemption to remove from the captain’s proper control any person merely to save a few shillings to the owner. For that reason I propose to support the definition as it stands and to resist any attempt to alter it.
.- My leader, from whom I am sorry to differ, rested his case upon the fact that every one on a ship must be under the discipline of the captain. That is the common law. The Minister has made out as very good case indeed, I think. Why should we depart from the Merchant Shipping Act and all the1 decided cases which show what a passenger is? It will be a blot on the Bill if the definition is not restored to its original form. It is absurd for any legislators to put upon an owner an obligation to prosecute himself and hisservants. The servants are under his orders, and he, they, and his family are under the control of the captain. We should not depart from the provision in the Merchant Shipping Act without verygrave reason. I am with the Labour Party in desiring to benefit sailors and to make their lives more pleasant and civilized, but I am opposed to any departure from the law which has been laid down in case after case.
– I trust that the Minister will undertake at a later stage to move for a recommittal of this definition. I am in considerable doubt as to the wisdom of the vote I gave. I remind the Minister that the definition as it stands is not a copy of the provision in the Merchant Shipping Act. If that provision had not been departed from I doubt if this difficulty would have arisen.
Senator GUTHRIE (South Australia)te1?] - I hope that the Committee will adhere to its decision. The Minister has stated - unconsciously, I think - that on this point the Bill does not differ from Imperial legislation.
– I never said so. I never said anything which bears such an interpretation. What I said was that, as regards foreign-going ships, it makes no alterationin regard to passengers.
– I shall take that statement. So far as Australia is con- cerned it makes a vast alteration. Under the Imperial Act foreign-going ships carrying less than twelve passengers are not required to go under survey at all. If we carry this definition the owner of a ship, his family, and his servants, may increase that number to twenty or thirty, and yet avoid the cost of a survey. Under the Bill the position in Australia is made absolutely different from what it previously was, because it provides that every ship, whether she carries passengers or not, shall be surveyed. That is, I think, the real reason why it was proposed that any person in respect of whom no passage money was paid should not be counted as a passenger in regard to the survey of a ship. Now what is the position under Imperial legislation? The provisions for a ship have to be examined and a scale computed, in order to insure that she shall carry sufficient food for a crew and twelve passengers. If, however, she carries thirty persons it goes without saying that she will not be properly equipped’ so far as provisions are concerned. The same thing applies in regard to spice. The Board of Trade has measured the ship, and deductions have been made from her tonnage for the accommodation of eleven or twelve passengers, but now she may be called upon to carry considerably more than that number. Are the additional persons to be taken on board’ without proper provision having been made for their accommodation and sustenance? The same thing applies in regard to lifesaving appliances and boats. Here is a provision which will give an opportunity for some person to be crushed out of a : boat in the case of an accident. It will not be the owner or his family who will be crushed out, but probably some person who has paid his passage money in good faith. I hope that the ‘Committee will adhere to the definition as amended, and so insist that whoever goes on board a ship shall be provided for.
– May I point out, as perhaps a confirmation of what Senator Guthrie has said, the peculiar wording of this definition - “Passenger” means any person other than the : master and crew or the owner.
If we turn back we find that - “ 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.
There are sixty-four shares in a ship. If we take the manager, secretary, and sixtyfour owners, how many additional persons can be carried by a ship under the definition of “Owner”? I present this little difficulty to the Minister.
– All the difficulties which have been pointed out are, I think, imaginary. Is it likely that the sixty-four owners of a ship would be in one place at one time, and in a position to travel? Such a case has never occurred to my knowledge. A similar provision in the Merchant Shipping Act has worked for a score of years in a perfectly satisfactory manner to all concerned. It may be considered by Senator Millen that the expenditure of a few shillings is of no consequence to a ship. But that is a very narrow view to take of this legislation. I hope that the Committee will have an opportunity of reconsidering its decision, because I feel quite sure that it was arrived at without a full knowledge of the circumstances.
– Senator Guthrie has overlooked the fact that under the Bill all steam-ships, whether they carry passengers or not, are liable to survey. In that respect the Bill differs from the British law. I think that he was referring to that part of that law which relates to immigrants and passengers.
– Not to immigrants at all. Part III. of the Act has nothing to do with them.
– I accept the suggestion of Senator Pulsford, and will ask honorable senators on another occasion to recommit the clause, so far as this definition is concerned.
Senator Sir JOSIAH SYMON (South Australia) [3.25]. - Is there any necessity for the definition of “ Answer questions “ ? If a man has to answer questions, of course he has to answer them to the best of his knowledge, information, and belief.
– The definition is for the purpose of shortening the language of the Bill.
– The definition seems very unnecessary. It simply means “ If you have to answer questions, you have to answer them.” I could understand it if there were a penalty. Under clause 282, where the master of a ship is required to answer questions relating to the ship, there is a penalty of £100. This is not a Bill for a Christmas pantomime. I think the definition ought to be struck out.
– We have had a definition similar to this in previous Acts. I may instance section 2 of the Australian Industries Preservation Act, which says that - “Answer questions” means that a person on whom the obligation of answering questions is cast, shall, to the best of his knowledge, information, and belief, truly answer all questions on the subjects mentioned, that the ComptrollerGeneral or the person named by him shall ask.
– I direct attention to the definition of “Go to sea,” in which I wish to insert an amendment with the object of making it clearer. The definition as it. stands would affect the movements of a ship in harbor by preventing her from moving from one part to another.
– Only for the purpose of going to sea.
– I wish to avoid the possibility of a vessel being penalized by moving about a harbor through its being stated that she was “ going to sea “ within the meaning of this provision. I move -
That after the word “ship,” line 14, the following words be inserted : - “but not shifting a ship in port.”
– I hope that Senator Pulsford will realize that the definition is only applicable to a vessel that is getting ready to go to sea. The reason why the provision is inserted is that great difficulty has been felt as to what going to sea is. Nothing is more usual than for a ship to leave a wharf, and perhaps anchor in a bay ready to make a start early on the following morning, or it may be to wait to complete her crew. But a vessel that merely shifts from one side of a wharf to another would not be going to sea. That is different from shifting from a wharf to an anchorage in a harbor in readiness to go to sea.
– What the Minister says would be quite right if it were not for the words “plying or running of a ship.” The plying or running of a ship has nothing to do with readiness for going to sea.
– I should like to be quite clear as to what the definition means. The Minis ter has told us that if a vessel went from one part of a wharf to another she would not be considered as coming within the definition. But a vessel may have completed her business, and hauled off into the harbor. Would such a case come within the definition of “go to sea” ?
– If she did that for the purpose of clearing out early, she would be “going to sea.”
– A vessel may go down a harbor and anchor there. Would she be held to be getting under way for the purpose of going to sea ? The point is, how far the definition would curtail the liberty of a ship to carry out an ordinary operation. No one wants to place a ship in such a position as to be able to escape her obligations under this measure by going away. But, at the same time, we do not desire to hamper vessels in the carrying out of operations that take place every day in the week.
– It is undesirable to hamper an operation that involves a ship shifting for convenience from one place to another. But that would not be regarded as going to sea. The reason for this definition arose out of the difficulties presented in the case of Woolwich v. Robertson, reported in 6 Queen’s Bench Division, where it is said - “ Sea “ is apparently used in its ordinary and popular sense and in that sense is contradistinguished in this section from fresh water.
It was deemed advisable that this definition should be inserted to make clear what “going to sea” meant, and we have made it as plain as possible.
– I may remark that I have not moved this amendment simply for a whim, but was requested to do so by very well-informed people largely interested in shipping. There can be no harm in the addition which I propose, and it would make the definition clearer.
Senator Sir JOSIAH SYMON (South Australia) [3.37] - The intention is that the expression used shall include the preliminaries necessary to enable a ship to “go to sea.” Although a vessel may lay up in the stream, she will come under this definition if her ultimate objectin leaving the wharf is to go to sea. Senator Pulsford merely wishes to make it clear that the moving of a ship from place to place in a port shall not come within the expression “go to sea.” It is a pre- cautionary amendment, and I see no harm in it. I quite agree with the VicePresident of the Executive Council that a ship might come within the definition of “go to sea “ even if she did not actually leave the port for a week.
– This definition would apply to a Murray steamer.
– Then it requires even greater consideration. I should like to hear Senator Guthrie on the point. I think that it would be better to make the amendment provide for ‘a ship moving from place to place.
– If the Minister will accept the alteration suggested by Senator Symon, I shall be glad to amend my amendment, so as to allow a ship to move in a harbor from place to place.
– No, from one berth to another.
– I do not think that the definition is a good one, because it would include all the ships in Hobson’s Bay, the Yarra, or Sydney Harbor, which do riot proceed to sea. In my opinion, the definition should foe so framed as to cover only the starting of a ship on a voyage or trip, because I do not think anybody intends that a vessel, which, having taken in part of a cargo, say, :at a Melbourne wharf, completes her loading in Hobson’s Bay, shall be held to have gone to sea. The definition is meant to apply to ships trading -within a harbor - plying between two places - and the matter ought to receive some further consideration. A ship may load a cargo of flour or grain, ‘and have to wait at Queenscliff for orders; and we could not say that such a vessel had started on her voyage when she left Williamstown. There is considerable difficulty, owing to the fact that we are trying to include foreign-going ships, Inter-State ships, river ships, and so forth in one definition.
– If a ship started her loading in Melbourne, and finished it at Geelong, could she be said , to be getting under way for going to sea when she left Melbourne ?
– Yes ; because she was leaving one port to go to another. At Port Pirie, where ‘we find shallow water, and vessels of big draught, many load up to a certain depth, and then take in the remainder at Port Germain; yet they are still within the limits of Port
Pirie harbor. On the other hand, there are vessels which trade between Port Pirie and Port Germain, so that the same definition could not apply to both. The definition of “go to sea1’ would be absolutely correct in the case of foreign-going or Inter-State ships.
– It would equally apply to coastal steamers trading between South Australia and Kangaroo Island.
– Such ships are trading between two places outside the limits of any one port. As I say, there is considerable difficulty in the matter, but, unless there is a definition of some sort, there will be a danger of the provisions as to the manning scale not being observed.
– I think I can meet the difficulty.
– For instance, there are the passenger vessels trading between Circular Quay and Manly, in regard to which there is every anxiety to have every proper life-saving equipment, and yet these steamers do not proceed to sea in the ordinary sense. Under the Customs Act ships are allowed to shift from the inner to the outer harbor without clearance, which is only taken out when the vessel actually proceeds to sea.
– I do not think that the substitution of the words “ start on a voyage” would carry us any further, and I suggest that Senator Pulsford accept the following words in lieu of those already proposed -
Provided that if a ship be moved whilst in port from one place to another in such port, such moving shall not come within the meaning of the definition.
– I accept the suggestion, and ask that my amendment be so amended.
Amendment, by leave, amended accordingly.
– A vessel may be moved from one place to another in 1 a port and yet not be carrying passengers or cargo.
– “Move” has a distinct meaning, namely, that a vessel is not carrying on her business.
– I should like to point out that in Newcastle and other ports, where vessels are moved about to a considerable extent, the word “shifting” is used, and is thoroughly well understood.
– So far as I can see, the definition in its present form is about as satisfactory a one as we are likely to get. In nine cases out of ten, and, perhaps, in even a larger degree, the definition will apply to foreign and sea- going ships; and at Newcastle, more than any other port, trouble will be likely to arise under it. That is essentially a foreign shipping port, and the vessels have to shift about a good deal before getting their cargoes of coal. It is quite common for vessels to be laid up for months, and during that time they are moved about considerably to meet harbor requirements. Even after getting their cargo, they may have to be moved about while waiting for a crew or stores; and I hold that, moving from the inner to the outer harbor under such circumstances, would not come under the definition of “go to sea.” That definition should apply only when the ship is under way for the open sea ; and I do not think that the amendment of Senator Pulsford makes the matter any clearer. The definition as it stands is clearer than it would be if amended as proposed. Unless the Minister is satisfied that it can be improved’ by the amendment, he should stand by the definition as printed.
– Does the Minister intend to substitute the word “shifting” for the word” moving ‘ ‘ in the amendment ?
– I naturally prefer the definition as it stands, but honorable senators have explained, that it is desirable to provide for the shifting of a vessel from one position to another in a harbor.
– That is provided for in the definition as it stands.
– I have agreed to an amendment of the definition which I understand will meet the objections urged against it by Senators Guthrie and Pulsford.If Senator Guthrie thinks that it would be better to substitute the word “shifting” for the word “moving” in the amendment, I have no objection to that alteration being made.
– I am agreeable.
Amendment, by leave, further amended accordingly, and agreed to.
– The definition of “Harbor “ is taken from the Merchant Shipping Act, but certain words have been added, and have not been put in the right place. The definition here is identical with that of the Merchant Shipping Act down to the word” “passengers,” and I think that if the words which have been added are to be retained, they should be introduced” after the word “ rivers.” I therefore move -
That after the word “ rivers,” line 17, the words “ havens, roadsteads, channels, creeks,” be inserted.
– That is only a transposition.
– That is so, but it would make better English of the definition, and would make it more clear.
– There is nothing to be gained by the transposition proposed. We have adopted the definition of the Merchant Shipping Act, and have added the words “ and haven, roadstead, channel, or creek “ to meet Australian conditions. The words added have been taken from the New South Wales Act, and from the Victorian Act. I can see no reason for transposing the words, but if honorable senators think the transposition would improve the definition, I have no objection.
Amendment agreed to.
Amendment (by Senator Pulsford) agreed to -
That the words “and haven, roadstead, channel, or creek,” lines20 and 21, be left out.
Clause, as amended, agreed to.
Clause 6 -
This Act shall be administered by the Minister for Trade and Customs, and the Department of Trade and Customs shall be the Department to carry it into effect.
– On Friday last, when we were dealing with the interpretation clause, I intimated my intention to move on this clause an amendment which would raise the whole question of whether this measure should be administered by the Minister or by some body more or less of a non-political character. I submit the amendment in this form -
That the words “ Minister for Trade and Customs “ be left out.
I adopt that form at this stage because I wish to take a test vote to discover whether or not honorable senators believe that the administration should be under Ministerial, that is to say, political control, or under the control of some body the constitution of which we can discuss later. If honorable senators agree with me that it is desirable to remove the administration of the measure from the Minister, it will be competent for any member of the Committee to submit a proposal as to the constitution of the body in whom the control of the naviga- tion law shall be vested. I do not wish to do that at this stage, because if I suggested a Board of Trade, some honorable senators might prefer some other controlling body, and as a consequence of the division of opinion, those who support the Bill as it stands, although perhaps in a minority on the main question, might win. I wish at this stage merely to test the question whether the measure shall be under the control of the Minister, or of some non-political body.
– A buffer.
– The honorable senator may so describe it if he pleases. I shall point out the reasons why I think the administration of this measure should be removed from Ministerial control.
– - In whole or in part?
– The administration <of the Act.
– If an extraneous body ls to administer the Act, how is Parliament to have any control over it?
– It would have none -whatever.
– Honorable senators at once say that Parliament would have no control ; but have we no control over our railways in Australia?
– Not much.
– We have Commissioners, who stand as a buffer between Parliament and the Minister.
– The suggestion that Parliament has no control over the railways in Australia is too ridiculous for a -moment’s serious thought.
– Senator Millen is suggesting only the practice adopted throughout Australia for years past in th~e establishment of Marine Boards and local government bodies of every kind.
– Exactly. I want no happier instance than that of the Railways Commissioners. They are responsible in each State to the Minister for Railways, who, in turn, is responsible to Parliament. That brings the railways immediately under the control of Parliament, but it also puts them beyond the control of individual members, and of that influence -which works unseen in the Ministerial office. Let me say here that the practice which . has .grown up since the inauguration of the Commonwealth of granting extended powers to Ministers by means of regulations has been carried in this Bill to a somewhat audacious length. I need not enumerate all the powers which under this measure are given to the Minister, but I shall refer to a few of them. He is given power to define exactly the examinations to be passed by persons seeking to obtain certificates as officers. Under clause 13 he can determine the character of the certificate to be issued, and what boats, and in what capaci- ties, those who obtain certificates may serve. Under clause 15 he can prescribe the qualifications which a man must have before he can submit himself to examination for a certificate. Under clause 16 he has the power to determine what the character of the examination shall be. He can prescribe what portion of the wages earned and due to a sailor shall be made payable and what portion withheld. He can determine the scale of medicines and medical stores. He has power under the provision with respect to survey, to exempt a ship from survey, or to order a ship to be surveyed, as he thinks fit.
– Will not Parliament have the power to refuse to ratify the regulations ?
– t should think so.
– It is not a question of regulations when the Minister can by letter say that one ship shall be surveyed, and that another shall be exempted from survey. The Minister in these provisions is made as autocratic as a Czar.
– He can exempt from survey if the ship has been previously surveyed.
– Not at all. A ship may never have been surveyed, and he can exempt it from survey or give an order to have it surveyed.
– We intend to alter that.
– The honorable senator had better say that he intends to try to alter it.
– Alter what?
– The provision with regard to exemption from survey.
– The VicePresident of the Executive Council has asked for notice of any amendments to be proposed, and one has just now been given him. I repeat that the Minister, under this Bill, has power to exempt a ship from survey or to order a survey at any time he pleases. Under clauses 134 and 135, dealing with the accommodation to be provided for seamen, the Minister is given power to override the Act, to dispense with the accommodation requirements provided for, and to leave things exactly as they are at present. Senator Turley. - Not in the case of a new ship. That is only where structural alterations may be necessary.
– Exactly. Under clause 206 the Minister has the power, which has to be exercised by some one, to detain a ship which is on the eve of putting out to sea on the ground that she is unseaworthy. Throughout the Bill the power given to the Minister is very extensive. The very circumstances of the shipping industry require that some such power should be vested in somebody, and somebody charged with the responsibility of exercising it. But the point I raise by my amendment is whether that power should be vested in the Minister or in a Board. One strong reason why a Board should be chosen is that, in dealing with shipping especially, it is desirable to have continuity of policy in administering the Act. That is worth a great deal, not merely to local ship-owners, but also to those who come from abroad. I have not had the opportunity of ascertaining what is done in other States, but in Queensland the Navigation Act is practically administered by the Marine Board of five individuals. That Queensland idea might give us a. kernel from which to develop a useful Board for Commonwealth purposes.
– Would the honorable senator hand over the whole administration of the Act to a Board?
– None of the administration would be removed from parliamentary control. Parliament will have just as much power over a Board as over a Minister, and a great deal more. The moment an accusation is made against a Minister, honorable members range themselves on strict party lines. A Minister charged with incompetence or with making a mistake has always a numberof apologists on his own side, who support him for party reasons, whatever they may think of the merits of the case. With a Board the case is entirely different. If a Board makes a mistake, or pursues a policy antagonistic to the dominant idea in Parliament, Parliament makes its will known, unswayed by party considerations. Parliament, therefore, has a more effective control in essentials over a non-political Board than it could ever hope toexercise over a political Minister. Let me suggest briefly a few of the ideas which occur to me as to the Board or authority that might be created to administer the Act if my amendment were carried. I am not wedded to any particular idea. In the first place, one body to administer an Act of this kind would be one which would correspond very nearly to the Board of Trade in Great Britain.
– To the Board of Trade? I am glad the honorable senator has said that.
– The honorable senator must not put down any note that I am advocating the creation of a Board of Trade. All I say is that one of the authorities which naturally suggests itself is a body corresponding to the British Board of Trade. I mention that as one class of body to which the administration of the Act might be handed over, because the Government announced not long since that there was hovering in their minds theidea of creating such a Board to administer the new protection. If the Government propose to create a Board of Trade to administer the new protection, it is not unseemly that that Board should be also charged with the duty of administering; this Act. If, on the other hand, the Government do not intend to establish such a body, but do intend to have an InterState Commission - a question upon which the Minister could make the position of the Government clear - it would not be unseemly to hand this Act over to the InterState Commission to administer. I have no desire to multiply officers and offices, and increase the demands upon the public Treasury. It would beidle to suggest the creation of a body specially for this Act if there is in the minds of the Government a fixed intention to call into being some such Board as I have indicated.I cannot say whether the Government intend to appoint a Board of Trade or an InterState Commission, or both, or neither, and, until the Minister makes the position of the Government clear, I am not in aposition to advocate one or the other. Possibly, as Senator Mulcahy suggests to me, this duty is more a matter for the InterState Commission, but if the Government intend to create a body with the functions of a Board of Trade to administer the new protection it would be foolish to create another set of paid officers to administer this one Act, seeing that a Board of Trade would be competent to administer it. On the other hand, if an Inter-State Commission is to be created it would be foolish to ignore it and call into existence another body to administer the Navigation Act. Certain duties are also cast by the Bill on certain Committees, one of which the Minister has to appoint, and others of which he may appoint. If such an authority as I advocate were created those Committees would become unnecessary, for the Board could take their place with great advantage. They would become matters of absurdity, because, as now contemplated, they would have .the privilege of offering to the Minister advice which he could absolutely ignore.
– That can be remedied.
– I am asking honorable senators to remedy it now. I do not intend to try to patch up a crippled Committee, but propose to put a good sound Committee in its place.
– Or to put another cripple alongside it.
– Surely there is no analogy between the authority I speak of, with ample power to administer the Act, subject, of course, to the review and control of Parliament, and these Committees. The last thought in my mind would be to take away from Parliament one jot of its powers,- privileges, or responsibilities, ‘but I am convinced from my political experience that the idea of control over an individual Minister is an absolute fallacy. Party influences, feelings, and interests, private likings and friendships, come in, but in dealing with a body such as I advocate Parliament is in a position to act as. a fair and impartial judge. If we happen to be supporting a Government, and the administration of some Act by a particular Minister is lax, or does not suit, us, we growl a little, but we always hesitate to throw him out for it, and especially to bring about a political crisis.
– We very nearly did it in regard to the Post and Telegraph Department.
– I want no better instance than that. An attack was made on a Minister because of his administration, but the moment it looked to be dangerous - the moment it appeared that the charge would bring him down, or create trouble for the Government- it was smothered. Directly it was thought that some party advantage would be made out of it. a species of political juggling was indulged in. I want to create no Board that will be beyond the control of Parliament. If the Committee decide to take the administration of the Act out of the Minister’s room, and away from those influences which at times will hover round a Minister, they can create a Board as much in touch with Parliament, and with just as much or as little power, as they like.
– Will not the honorable senator make the Minister a member of the Board, as the President of the Board of Trade is in England ?
– I do not want to tie myself to any particular form of authority. If the Committee approved of my amendment. and decided to create a Board with a Minister at its head, I should not object. I want to take the Act out of the hands of the Minister, who is bound to be more or less subject to the dominant influences of the hour. I do not want it to be possible for one Minister to-day, because a certain party is dominant in the House, to lay down a rigorous policy involving the survey of every ship that comes here, and six months after, under the influence of some other -party, another Minister to introduce a lax system of survey. For those reasons, seeing that some one must exercise those great powers which are put beyond our immediate control, it is better to take them out of the hands of the Minister and place them in the hands of a Board. I am utterly regardless of the precautions we may take, .to insure that the Board shall accurately reflect the desires of this Parliament. I ask honorable senators not to run away with the idea that by adopting my proposal they would lessen their power for one moment, or that I wish them to lessen it. It is because I believe that by the appointment of an independent Board in lieu of the Minister of Trade and Customs we. should secure a more equitable and business administration of this measure that I advocate the adoption of that course. That is the paramount consideration which impels me to submit the amendment.
– My honorable friend has not hesitated to ask the Committee to make a most violent and radical departure from the recognised principles of responsible government. If any substantial reason can be advanced in favour of his proposal by all means let us adopt it. He has suggested the appointment of a body corresponding to the
Board of Trade of Great Britain-
– I did not suggest that at all.
– I would not wittingly misquote my honorable friend.
– I distinctly said that the Government have suggested the possibility of appointing a Board of that kind to administer the new protection, and I stated that if they intended to create such a body the administration of this measure might be intrusted to it.
– I asked my honorable friend to repeat the words which he had used, and as he repeated them I took the trouble to write them down. -But if he now declares that he did not mean them-
– I said a dozen times that I was not particular as to the body itself.
– My honorable friend distinctly stated that he desired the creation of a Board corresponding with the British Board of Trade. Later on he said that he was not particularly wedded to such a body ; but he made it clear that he wants a Board the character of which he did not define. He asks us to omit the word “ Minister “ with a view to subsequently substituting a body which he has failed to define. I thought that he was more or less definite in his terms when he told us that he favoured a Board something like the Board of Trade. I could understand his position in such circumstances. But this Committee is seriously asked by him to depart from all fundamental principles of responsible government and to venture upon a sea of new departure - upon an experiment which may or may not be successful and which certainly would afford no guarantee of improvement.
– Did he supply the Vice-President of the Executive Council with a chart when he asked him to embark upon that sea?
– No, he was not equipped with it. If Senator Millen does not desire a Board similar to the British Board of Trade, well and good.
– I said that I was waiting to learn whether the Government intended to appoint a Board to administer the. new protection.
– I thought that I was doing my honorable friend justice when I stated that he had in his mind a body similar to the British Board of Trade.
– If I had proposed the appointment of such a body the VicePresident of the Executive Council would at once have said that the Government intended to appoint an Inter-State Commission, so that my proposal, if adopted, would involve a waste of public funds.
– But the words used by my honorable friend were, “A Board corresponding to the Board of Trade.” Now, the Board of Trade of Great Britain is certainly charged with colossal functions. The various departments which it administers embrace the Marine Department, the Harbor Department, Finance and General Department - including patents, trade marks and designs, weights and measures, insolvencies, railway companies, labour, commercial intelligence, and all matters relating to trade.
– What is the composition of the Board?
– I hope that my honorable friend who interjects will not be too hasty. The British Board of Trade is vested with colossal jurisdiction, comapred with which that which we propose to vest in the Minister of Trade and Customs is trivial. Will Senator Millen be surprised to learn that the British Board of Trade is the Minister?
– There are some Bishops, who are members of it.
– The Board, of Trade which controls this vast number of departments and these mighty interests is the Minister.
– No.
– I say “Yes,” and I have made inquiries upon the subject.
– Then all the yearbooks are wrong.
– I am going to concede something to my honorable friend, namely, that the Archbishop of Canterbury is a member of the Board. I am really going to make great concessions to him.
– Perhaps Senator Millen desires an archbishop to be appointed to the Board which he proposes to establish.
– I ask Senator Millen: “ Does he desire that the Archbishops of the Commonwealth shall be appointed to the proposed Board?”
– Get serious.
– I am perfectly serious. I ask my honorable friend whether he seriously desires that the Archbishops of the Commonwealth shall be appointed to the proposed Board? In speaking of this matter, I am reminded of a little incident which occurred some time ago, when a member of the House of Commons inquired upon how many occasions the Archbishop of Canterbury had attended the meetings of the Board of Trade within a certain number of years. Mr. LloydGeorge rose, and, with a solemnity which was quite equal to the humour of the position, replied that His Grace had attended the meetings of the Board on every occasion on which he had been summoned.
– He had never been summoned.
– Of course not. I wish seriously to tell Senator Millen that in practice and effect the British Board of Trade is the Minister. Under this Bill we propose that the Minister of Trade and Customs shall occupy an exactly parallel position. We have been told by Senator Millen that the Minister, who is responsible to this Parliament in the same way as the President of the Board of Trade is responsible to the British Parliament, ought not to be intrusted with the comparatively small task of administering this measure.
– What position on the Board of Trade do Captain A. G. Chalmers, Commander Frederick, R.N., and Commander Freeland, R.N., occupy?
– They are officials, just as Dr. Wollaston and Mr. Lockyer are officials associated with the Customs Department.
– They are professional members of the Board.
– I wish to tell my honorable friend that the Minister himself is the active and controlling force. Apart from him, the Board of Trade is a myth, which has come down to us as a relic of ancient days., He is responsible to the British Parliament, and we - adopting the same principle in regard to our local affairs - seek to put similar control in the hands of the Minister of Trade and Customs. It has been suggested that Ministers are not responsible to Parliament. That is a most extraordinary doctrine to lay down. It is one which is quite new. I ask honorable senators to say whether a Minister, who is daily in Parliament, who is subject to the criticism of Parliament, and who is always available for the purpose of replying to criticism-
– Or of receiving censure.
– Exactly. I ask honorable senators to say whether a Minister who is daily in Parliament, where his Ministerial acts are open to attack, is not more likely to be in touch with the wishes of Parliament than is any Board such as Senator Millen desires to see created? The fundamental principle underlying responsible government is that a Minister cannot live except by the confidence of a majority. He is consequently much more amenable to Parliament than any independent body could possibly be. Of course, Parliament can insist upon having its wishes obeyed, but if we create a statutory body, it would be quite competent for that body to adopt a policy of its own, unless Parliament chose to take the extreme step of abolishing it. Senator Millen has declared that it is not reasonable to vest the Minister with power to frame regulations under this Bill. But I ask the Committee to bear in mind that the measure cannot be made a workable one unless the power to make regulations is conferred by it.
– I said so.
– But my honorable friend refuses to empower the Minister to make regulations, notwithstanding that he would vest a Board with that power. Need I point out that if a Minister frames regulations, they must be approved by Parliament before they become operative.
– The same remark is equally applicable to regulations framed by an independent Board.
– Then, what is to be gained by adopting the proposal of my honorable friend?
– A Board would be free from the pernicious political influence of which the Vice-President of the Executive Council knows so much.
– The Acts Interpretation Act of 1904 contains this provision-
Where an Act confers powerto make regulations, all regulations made accordingly shall, unless the contrary intention appears -
But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House disallowing - any regulation such regulation shall thereupon cease to have effect.
– Does any one in Parliament ever look at regulations?
– My honorable friend has known of regulations being challenged in Parliament on several occasions. I speak with some experience in these matters, and I assert that unless we had power to make regulations which could be altered from time to time in order to meet immediate conditions, many of our Acts would be unworkable, harsh, and impracticable. It is an elastic power which we must possess and exercise from time to time. The Minister will occupy a seat in Parliament, and any regulation which he may make will be subject to its control.
– If that is correct, why not make the whole law in that way?
– No.Parliament lays down the fundamental principles of the law ; it deals only with those matters which it can define, and no regulation can be made inconsistent with the provision of an Act.
– The only question is - Who shall have the power to make the regulations ?
– I am pointing out that the regulations will be made by the Minister and will be subject to the control of Parliament.
– It will be just the same with the Board.
– If it is to be the same with the Board, what is to be gained by making the proposed changes?
– We shall gain the experience and knowledge of the Board on most technical subjects.
– If that is the idea of my honorable friend it is most completely carried out in the Bill, and it could not carried out under his proposal. Clause 416 provides for the formation of a Committee which will adapt itself to existing conditions, and possess direct and immediate knowledge. If it were an unchangeable Committee, it could not have that knowledge in connexion with all matters.
But it is provided, on the recommendation of the Navigation Commission, that -
Committees for the purpose of advising him when considering the making or alteration of any rules regulations or scales for the. purposes of this Act or any Act amending the same.
The Minister will have an Advisory Committee, and it will be competent for him to change it from time to time, in order that he may obtain the best technical advice.
– But who is to know whether he takes the advice tendered to him?
– It is provided in the measure that the Minister shall only act after hearing-
– That is one Committee only.
– Exactly. This is where the technical and the most sensitive part of the Bill comes in.
– The other Committee is technical, too.
– It is a permissive power. The Minister may or may not act.
– My honorable friend is wrong, because the word “ shall “ is used.
– “Shall” is used in regard to one Committee, but “ may “ is used in regard to others.
– The Minister has to form the Committee, and Senator Mulcahy has asked, who is to know whether he takes its advice ? As it is a condition precedent to the Minister exercising his discretion, the Parliament will be entitled to see the report of the Committee. If he acts against the advice of the Committee he will take a great responsibility, and will be liable to answer to Parliament for his conduct. If, on the other hand, he carries out the advice of the Committee, he will have had the advantage of being supported by technical advice. If it is thought that in relation to any other technical matters the scope of the Committee might be enlarged, that is another question alto- gether. What I am protesting against is the suggestion to appoint a permanent Board. These men, who might possess excellent knowledge of certain matters, and who, of course, would be no better informed than the Minister as to others, would be influenced by the advice of such experts as they chose to consult. But, what is the improvement to be gained? I submit that on technical matters the Minister will have the best advice, and it is to be followed. I was asked to say at once whether the Government propose to appoint an Inter-State Commission. It is very likely that we shall do so, and it will be time enough then for us to consider an important matter of this kind. The probability is that the Commission will be created for a specific reason. It will exercise the jurisdiction which is laid down in the Constitution, and discharge such other duties as may be assigned to it. But my honorable friend has utterly failed to show any reason for making such a radical and important departure as is involved in his amendment. At one time a similar Board existed in New South Wales, but it was abolished and a Ministerial Board took its place. We are proceeding exactly on the same lines as did New South Wales, Victoria and New Zealand, and, what is more, on exactly the same lines as the United Kingdom.
– No.
– I challenge my honorable friend to refute what I have said about the Board of Trade in Great Britain.
– In one part of his speech the honorable senator said that the Board of Trade consists solely of the Minister, but afterwards he admitted that it embraces an archbishop.
– I said that nominally the Board includes an archbishop and other gentlemen of that character, but that, so far as active control and management are concerned, the Board is, to all intents and purposes, the Minister, who is assisted by advice. For the reasons I have given, I think that the amendment of my honorable friend, if made, would be far from an improvement on the clause as it stands.
– I think that we might discuss what is purely a business proposal without undue heat.
– I have shown no heat; only good temper.
– The Minister seems to have taken great alarm at the amendment. Let us deal with business interests from a purely business stand-point. An attempt has been made to show that the delegation of the administration of the measure to a Board would be derogatory to the dignity of Parliament. I do not think that that is a matter which we should consider at all. The point to be considered is : What is the best method of administering the law in the interests of all parties concerned? The Minister has said that the creation of a Board in place of the Minister would be a departure from the fundamental principles of responsible government. He and I have been in parliamentary life for about the same period, and he has seen those principles departed from over and over again in Victoria. He has witnessed the creation of the Railways Commission, the Harbor Trust, the Public Service Commission, and various other bodies, each of whose duties were formally intrusted to a Minister.
– He has seen a shocking example of what can be done by Boards.
– I do not admit that for a moment. But if what the honorable senator says is correct, it is the duty of the Government at once to cancel the appointment of the Boards.
– Hear, hear. They are proposing to do so.
– They are not; and the people of this country would not Submit to their cancellation.
– But the Government could not cancel the appointment of the Boards.
– No, but Parliament could. If the Boards were acting in a shocking way, the Parliament would be up in arms at once, and cancel them. It is by no means a new thing in this State to depart from the fundamental principles of. responsible government. The Minister has been engaged in making such departures, and has worked under them, too. So far, he has taken no steps to repudiate, nor has he advocated the repudiation of, the administration of the law by such bodies. An attempt has been made to be facetious by dragging in the name of an archbishop. We need not deal with that matter. The Minister has said that the Board proposed would adopt its own policy. It is not intended that it should adopt any policy. Its duty would be to administerthe policy laid down by Parliament, and to keep within the four corners of the law. The Minister also said that the Board might not be subject to Parliament.. But that is simply begging the whole question. The Board must be subject to Parliament, and could only carry out such duties as were assigned to it by Parliament. The Minister really blinks the whole question, which is : Are we to have political or non-political control in the administration of the law? That is the whole question we are now considering. What will the administration of this measure require? , It will require, first of all, an intimate knowledge of the interests governed by it. Under the present system we’ might have the administration of the Bill placed in the hands of a man who had never seen a ship and was ignorant of shipping matters. Such a man would be absolutely in the hands of his officers. Then again, under political control, we should have no continuity of policy. This Bill affects worldwide interests, and it is absolutely necessary that there should be some certainty with respect to its administration. Under political control the masters of vessels leaving distant ports for our shores, at a time when certain regulations were in force, might find upon arrival here that a totally different set was in operation. Such a state of affairs would be intolerable. We want above all things to have absolutely impartial control. We do not wish to see this measure administered by a Minister at the beck and call of any political party. In order that we may Have security, it should be in the hands of a man free from party influences.
– Would it not be well for the honorable senator to support his argument by showing that regulations by Ministers have had the effect he suggests?
– I have only to refer the honorable senator to the reports of the debates tin the Legislative Assembly of Victoria prior to the appointment of Public Service Commissioners and to the placing of the Railway Department under a Board of Commissioners to prove that at that time political control was rampant. It was considered absolutely necessary to place the Public Service and the Railway Department of this State under non-political bodies.
– That was merely the experience of Victoria.
– Other States fol- lowed our lead. The Minister might have no knowledge of the interests governed by this Bill, and he certainly would not be able to pay to them the attention they demanded. The Department of Trade and Customs is being loaded with an enormous mass of work, and the Minister of Trade and Customs is expected to do far more than any one man could possibly do. The work allotted to his Department is so great that he surely cannot find time even to sign all the papers relating to it, much less to consider the problems that present themselves for solution. At the present time the Department is charged with the administration of eighteen Acts of Parliament. It administers a Tariff of 450 items involving numerous determinations and the framing of many regulations ; the Commerce Act, the ‘ Copyright and! Designs Act, the Distillation Act, the Excise Act, five Excise Tariff Acts, the Patents Act, Sea Carriage of Goods Act, the Spirit Act, Sugar Bounty Act, Trade Marks Act, Quarantine Act, and also the Excise Procedure Act, which is not included in the return submitted to us a few days ago. The administration of all those Acts must involve quite enough work for any one man without his being called upon to shoulder the great responsibility of this Bill. It would be impossible for the Minister of Trade and Customs to give more than mere fragmentary attention to matters arising under it. If the administration be placed under political control there will be no continuity of policy. The prosperity of Australia depends on the shipping that comes to her shores, and we should endeavour to insure confidence in the administration of this measure on the part of those doing business with us. We cannot hope’ to secure under political control that measure of confidence that would be obtained if we appointed a Board. Under political control the administration might be altered at the mere whim of the Minister himself or of that of a majority in Parliament. But the position would be different if we had a Board consisting .of men with full knowledge of the interests affected by this measure. It has been said that over such a Board Parliament would have no control. I contend that it would have the same control that it possesses over other Boards. It would be for Parliament to lay down the policy to be pursued, and the Board would be bound to carry out that policy. The Minister made a special point of the fact that all regulations are laid before Parliament. I would ask honorable senators whether any honorable member ever thinks of scanning them. They are sent in shoals to the clubroom:, and are promptly placed in the waste-paper basket.
– Might not the same remark apply to regulations made by a Board?
– I mention this only to show that the control which Parliament exercises over the making of regulations is more apparent than real.
– It is real.
– It is not real because it is not exercised. If the Ministerial proposal be adopted the administration of this measure will be governed not by a regard for what is best in the interest of all concerned, but by the political views of the Government of the day or the Minister in charge of the Department. The Minister might be appointed Chairman of the Board, just as in Great Britain the Board of Trade is presided over by a Minister. But I am satisfied that we should secure the confidence of the public by vesting the administration of the Act in a Board of experienced men, instead of in some officials or a Minister, who might be changed from year to year. This measure should be administered apart altogether from politics, and we should do everything in our power to gain the confidence of the shipping community. If a Board were appointed, there would be no possibility of violent or revolutionary changes. The administration would not be under the control of any one political party, and any change that might be made would be gradual. It would have to be sanctioned in the first place by Parliament; on the other hand, a Committee appointed by a Minister might simply consist of his own creatures, prepared to do what he wanted, and, if they were not, they could be displaced. The Board should be appointed by Parliament, and not by any Minister who could vary its -personnel as he saw fit. This is an ‘important question, and should be carefully considered. I agree with Senator Millen that it would be better to vest the administration of the Bill in a board of practical men rather than in a Minister who would probably administer it according to his own political ideals.
– After the speech made by Senator McColl, I do not think that the VicePresident of the Executive Council, who is now the Acting Minister of Trade and Customs, will seek to have placed upon his shoulders the additional burden which the administration of this Bill would involve. When debating the motion for the second reading, I pointed out the necessity of a new Department to administer it, and said that I was in favour of an independent Board. I went further, and urged that it would be necessary to have a Marine Department. I referred then to the report of the Conference of official representatives of State Departments on the draft Navigation Bill °f I903, in which it is pointed out that -
A reference to the system of administration of the Department of Marine in the Dominion of Canada might not be out of place as it might probably be considered as furnishing a guide for our procedure.
The report then proceeds to set out the work of the Department of Marine in Canada, and shows that its administration is by no means as extensive as is that of the Board of Trade, which I admit is not a good example for us to follow. In England, the Minister attends, not only to the work of the Board of Trade, but to other matters.
– The Minister there is charged, I should say, with fifty times the work that the Minister of Trade and Customs here is called upon to perform.
– He deals with other questions besides those of navigation.
– I enumerated them.
– The Canadian Department of Marine has under its control the administration of the following matters : pilots and pilotage, beacons, buoys, lights and light-houses and their maintenance, harbors, ports, piers and wharfs, steamers and vessels belonging to the Government of Canada, except gun boats or other vessels of war, harbor commissioners or harbor masters, classification of vessels and examination and granting Of certificates of masters and mates and others in the merchant service, shipping masters and shipping officers, inspection of steam-boats and boards of steam-boat inspection, inquiries into causes of shipwrecks, establishment, regulation, and maintenance of marine and seamen’s hospitals, and the care of distressed seamen. It is pointed out in this report that -
In Canada the Dominion Government have the administration of practically the whole of the mercantile marine.
I think it would be far better to have such a Department than to place the administration of a measure of this kind in the hands of a Minister, who might be imposed upon by persons taking advantage of his want of technical knowledge. I hope that we shall make this Bill as perfect as possible, but it certainly will not be all that could be desired if its administration is left to a Minister who has no technical knowledge, and may not be guided by any Advisory Board. ‘ It would be much better to have a Department of Marine for the whole Commonwealth. That seems to me to be the solution of the difficulty.
– I wish to reply to something to which the Vice-President of the Executive Council has referred as a challenge with respect to the constitution of the Board of Trade. The honorable senator affirmed that the Board of Trade consisted of the Minister-
– I said that it was nominally a Board, but really the Minister.
– And that there were connected with it officials corresponding with men in our own Department, such as Dr. WolListon. I say at once that the Minister has been misled.
– Possibly by his officials ?
– Possibly - for which purpose, it seems to me very often, many of them exist. Quoting from the Shipping World Y ear-Book, I find that the Board of Trade consists, apart from the President - who is, of course, the Minister - and the parliamentary Secretary, who also has a seat in Parliament, of the permanent secretary, who is an officer corresponding with the official named by the Minister, Dr. Wollaston, and, as professional members, three gentlemen who apparently hold Royal Naval Reserve commands.
– And who are also officials.
– If this book means anything, it means that there is actually a Board, which consists of seven gentlemen, the Minister being the President.
– Has there ever been a meeting of the Board?
– Of course, Senator Turley, with that strong vein of humour that runs through him, finds it easy to put such a question. But does he know that there has not been a meeting of the Board?
If I were to say that there was a meeting of it yesterday, I should have just as much ground for my assertion as he has for his question. “When such an authority as that which I have quoted gives the constitution of the Board, and enumerates its members, I have a right to assume that it is actually a Board, and that the gentleman who is mentioned as its President has po more power than any other gentleman who is mentioned as a member of it.
– I hope that the honorable senator does not rely upon that information with too much confidence.
– If I found in any publicati’on mention made of a racing club committee, with one gentleman as its president and others as committeemen, I should, not assume that the committee simply resolved itself into the president,, and that the others had nothing to do with its management. I therefore assume that the Board of Trade consists of the gentlemen whom I have mentioned.
– I complain that the Archbishop of Canterbury is not mentioned.
– The Minister has cited no authority for the statement that the Archbishop of Canterbury is a member of the Board.
– It is a fact.
– I find, from Pargrave’s Dictionary of Political Economy, that the whole history of the Board of Trade shows that it has fulfilled important functions.- This work indicates that a political crisis was once brought about by a successful attempt made by Burke to turn out one Committee of highly-paid’ officials for the purpose of putting in another. Throughout it is referred to as a Committee. The Minister’s statement that the President constitutes the Board of Trade is: completely contradicted by the authoritiesto which I have referred.
– I think not.
– I say that the seven men mentioned as constituting theBoard do the work, not the Minister.
– At the Navigation: Conference the Board advised the Minister.
– Yes Mr. LloydGeorge, in his inaugural address, referred to the Board’s deliberations. Would he, as Minister, have spoken of his own actions as the deliberations of the Board. If Senator Best will read Mr. Lloyd-George’s speech, he will- find that he spoke of theBoard in such a way that no other con- elusion can be come to than that it consists of several gentlemen -who meet together to transact business.
– Members of the Board were present at the Navigation Conference.
– My honorable friend was not quite fair in making it appear that I advocated the creation of a particular form of Board to take the place of the Minister. What I am anxious for’ is to see control taken from the Minister and vested in some non-political authority ; but I said distinctly that I did not want to suggest the creation of a new Board at this stage, because if the Government contemplated creating some other body in connexion with the new protection, it would be desirable to intrust these functions to it rather than to create another Board. I instanced two Boards - one which Ministers themselves have suggested, and the InterState Commission, the establishment of which is required by the Constitution. If the Government intend to appoint either of those bodies, they would, I think, be suitable for the administration of this measure ; but it would be foolish to appoint one Board to administer the new protection measure, and another Board to administer this Bill. I ask honorable senators to disabuse their minds of the bugbear that, by creating a Board, we should remove the administration of this Bill from the influence of Parliament. Parliament would determine what powers the Board should exercise.
– Then,- away goes the power of Parliament.
– Has the power of Parliament been surrendered by the appointment of Commissioners anywhere?
– In Western Australia the power of Parliament has been absolutely subverted through the passing of the Act placing the railways under the control of Commissioners.
– Western Australia is an extraordinary State, which does extraordinary things. But I am not advocating that Parliament should part with its powers. I am advocating the establishment of a body that will carry out the will of Parliament.
– A Public Service Board was created in Queensland, and the honorable senator’s party has since “wiped it out.”
– Did the honorable, senator approve of the “wiping out” of that Board?
– I had no say in the matter.
– I ask whether my honorable friend approved, because, aithough it has nothing to do with the clause now under discussion, I should like him to “ come off the fence.” The idea that a Board can usurp the functions of Parliament, and become’ the master of Parliament, is nonsense. A Board would have just such power as we chose to give to it, and no more. If we chose to give it a limited power, and to say that it should only act within a circumscribed area, we could do so. But at present it may be fairly stated that Parliament exercises little control over Ministers. What honorable senator opposite would range himself with us if an attack, were made on ‘a Minister?
– I should, if the attack were justified.
– But the honorable senator would constitute himself the judge of whether the attack was justified, and would look at the matter through party spectacles. He would say that, although the Minister had not conducted the affairs of his Department properly, still, as the effect of turning him out would be to put in another party to which he objected still more, he would not vote to do so. In other words, the honorable senator wouldkeep the Minister -in office to prevent some one else from getting there. That is the ordinary procedure. in Parliament. I hold so strongly to the desirableness of eliminating political influence from the administration of this measure, that I felt it to be a duty to myself to bring this proposal’ forward. Let me point out, also, that those honorable senators who are continually contending for the extension of Government undertakings are the very people who create the chief obstacle to achieving the end they have in view. The, one thing which stands between them and the attainment of their desire is the want of faith on the part of the community in the wise administration of Departments, and the fear of political control. If I were a member of the party to which I refer, I should be anxious to see the functions which .the State discharges carried out in the most effective way possible. I have not indicated the nature of the body that, in this instance, I should like to see appointed, but I think that there should be a thoroughly competent man at the head of it, and, to assist him, representatives of the shipping interest and of the seamen. It should be a body possessed of expert knowledge, and in a position to hold the balance fairly between the conflicting interests, whilst, at the same time, giving expression to the wish of Parliament in a way that a Minister never does, and never can.
– Senator Millen has altogether misrepresented the constitution of the Board of Trade. It is right that honorable senators should know something of the nature of that body when they are asked to establish a similar Board for the administration of an Act of the Parliament of Australia. Quoting from the Encyclopedia of the Laws of England, published in 1897, which gives something more of the history of the Board of Trade than does the compendium referred to by Senator Millen, I find the statement made that in 1784 -
His Majesty was pleased to appoint a new Committee of Privy Council and to declare that the Lord Archbishop of Canterbury the First Lord Commissioner of the Treasury, the First Lord Commissioner of the Admiralty, His Majesty’s Principal Secretaries of State, the Chancellor and Under Treasurer of Exchequer and the Speaker of the House of Commons -should be members of the said. Committee -
– It is really a survival from the Dark Ages, like the Fishhawkers’ Guild.
– To continue the quotation -
And that such of the Lords of His Majesty’s Most Honorable Privy Council as shall hold any of the following offices, viz., the Chancellor of the Duchy of Lancaster, the Paymaster or PaymastersGeneral of His Majesty’s Forces, the Treasurer of His Majesty’s Navy, and the Master of His Majesty’s Mint should be members of the said Committee. And after adding to the Committee some officers df the then existing Irish Parliament and ten other members among whom were the Master of the Rolls and the Bishops of London, the minute concludes : “ and His Majesty is hereby further pleased” to order that the Right Honorable Lord Hawkes- “bury. Chancellor of the Duchy of Lancaster, and’ in his absence the Right Honorable William Wyndham Grenville be president of the said Committee.
This publication gives the whole history of the Board.
– What date is the honorable senator referring to?
– The Order in Council referred to here was issued in 1782, and it is the authority under which the Board of Trade has - been working ever since.
– There have been a dozen alterations since then.
– Then it is further stated -
This Act and the Order in Council explains the origin of the Board as a large committee and during the early years of its existence its business was done by minutes passed at a Board consisting of such members of the Committee as chose to attend, the average attendance (according to the minute-books from 17S6 to 1797) being seven or eight. As the president was the only member who was regularly present, and as he was quite competent to act alone (the Order in Council not requiring a quorum of the Committee) the business naturally tended more and more to be drawn into the president’s hands, more especially as the administrative functions of the Board began to arise. Accordingly in 1S26 a salary of ^2,000 was by 7 George TV. c. 32 voted to the president, although his office rested solely upon the Order in Council, and had not been created by statute. Similarly, the first statutory mention of the vice-presidency is not its creation, but a recognition of il as an already existing office to which a similar salary was given. The only other statute which affects the constitution of the Board of Trade is one passed in 1S67, with the object of further strengthening the efficiency of the office bv the substitution of a parliamentary secretary for a vice-president. The latter had never been subordinate to the president, and was paid an equally high salary for discharging the duty, not of an active assistant, but of an occasional deputy. Accordingly by 30 and 31 Vict. c. 72 the vicepresidency was abolished, and a parliamentary Secretary substituted with a salary of ^2,000, which in 1886 was reduced to .£1,200, being like that of the president, paid out of annual votes. By these means the Board of Trade has been for working purposes assimilated to other offices of state and present to the world the appearance of a permanent staff of officers under a permanent secretary and two parliamentary chiefs, who change ‘with the Ministry. But behind them there exists the dormant Committee, “ the hypothesis of a board,” and technically no doubt the Master of the Mint might be summoned to decide upon the seaworthiness of a Durham coaler, or the Archbishop of Canterbury to interpret the Petroleum Acts. ‘
That is not the kind of Board for the administration of the Navigation law that is likely to commend itself to the good sense of the members of this Committee.
– The honorable senator knows that that is not what I have advocated.
– Like most of us, Senator Millen knew nothing about the Board of Trade, but he would sooner have such a Board than the Minister.
– I make this further quotation from the same authority -
As to its composition, the permanent establishment which in 1840 consisted of thirty persons at an annual cost of£4,716, had increased in 1853 to sixty-six persons, and in 1867 it consisted of 150 persons at an annual cost of £44,378, while in 1879 the cost was£62,816, and the staff had increasedto 229. In 1892 the cost was £99,221.
This shows, as Senator Trenwith has just said, that Senator Millen knew nothing about the Board of Trade, but would rather have it than a form of administration about which he does know something.
– I did not advocate the Board of Trade, and the honorable senator knows it.
– The honorable senator said that he wanted something practically the same as the Board of Trade in England.
– I said nothing of the kind.
– The reason why so large a number of persons are included in the staff of the Board of Trade is that it is divided into a number of departments which are again dividedinto sub- departments, each one of which takes charge of a certain business. But the Board of Trade itself is only a myth. What has been the result of the’ establishment of Boards to administer Acts of Parliament in Australia? The practice was started in Victoria, and the Parliaments in all the States went mad over the appointment of such bodies. They began by appointing Boards of Railway Commissioners. Three Commissioners were appointed in Queensland, and at the close of the first three years of their administration there was such an awful row amongst the Commissioners themselves that the Queensland Government submitted a proposal to the State Parliament, under which one of the Commissioners was given three years’ salary to clear out of the country.
– They chose the wrong men to start with.
– Yes. They chose men who were brought from the Old Country, because they were believed to possess the enormous experience which we are always told is the special qualification of officers brought from England.
– What became of the man who was “ shunted “ ?
– I do not say that he did not go back to England and get a splendid job there, but I do say that the people of Queensland paid him three years’ salary to clear out of the country.
– The politicians of Queensland the honorable senator means?
– I do not know whether it was the politicians of Queensland, but it was certainly the Government of Queensland who took action.
– The Commissioner was a little too strong for them.
– Nothing of the sort. He was certainly a man who believed that he knew his own business, and would not permit even the Chief Commissioner to override him in any way. The Government of the day were behind the Chief Commissioner, and the second Commissioner had to get out. Then other men were appointed as Railway Commissioners who had never had a solitary day’s experience in connexion with the working of railways. It was said, in those days, that a Board of Railway Commissioners was necessary, and to-day the Queensland railways are being managed by one man, who has practically been brought up in the Railway Department of the State. The previous Board of three Commissioners has been wiped out.
– And members of the honorable senator’s party are moving the State Parliament now for a Royal Commission to inquire into the management of the present Commissioner.
– Why ? Because this one man has been held up by the Ministry as a buffer between Parliament and themselves. That is why Parliament is now demanding an inquiry into the whole business. I say that these Boards generally are neither more nor less than buffers between the Ministry and Parliament. A deputation waits upon the Minister, and is told by him that it must consult the Commissioner. Later the Minister is questioned in his place in Parliament, and gives the same answer every time. Ministers simply make use of these Boards, and refuse to accept the responsibility of their office.
– Refuse to be squeezed by anybody.
– They refuse to accept proper Ministerial responsibility, and on every conceivable occasion put forward a Commissioner or a Board. Those who complain are told that they must deal with the members of the Board, who have been given certain powers under Acts of Parliament, and yet we know perfectly well that in nine cases out of ten the Commissioners are forced by the Government in any direction they require them to go. That has been the history of Boards in Australia so far. At one time we had a Public Service Board in Queensland, and the charge was publicly made that the Chairman of the Board had no less than eighty of his relatives under his control.
– Was the charge proved ?
– I do not know that there was any inquiry into it. But it was publicly made, and if it had not been true I have no doubt the Chairman of the Board would have taken steps to make those who made the charge withdraw it. The work of that Board was talked about from one end of Queensland to the other, until it became a scandal, with the result that the Government wiped it out of existence, and Ministers had again to accept responsibility for the management of the Public Service. I prefer to see Ministers accept their proper responsibility to Parliament.
– Is the honorable senator opposed to the committees provided for in this Bill?
– I am not opposed to such committees as the sub-departments of the Board of Trade making recommendations to the Minister, for which, if he follows them, the Minister will be responsible to Parliament. I have said that there are several subdepartments of the Board of Trade, and they administer some fifty or sixty different Acts of Parliament. I do not mind that when a Minister accepts the whole responsibility for the action taken. But I object to relegating extensive powers to a Committee, under an Act of Parliament, in such a way as to enable the Minister, who should be responsible, to shelter himself behind the Act and the Committee. That is wrong in principle. Many persons are now advocating that the work of the Post and Telegraph Department should be taken out of the hands of the Postmaster-General, and placed in the hands of a Board of Commissioners, composed of business men. We have, in Australia, had some experience of administration by business men. We know the bungle they made of things prior to 1893, and that in all the States they had to appeal to Parliament, as the only power able to save the great institutions with which they had been associate’!].
I am opposed to handing over the administration of this Act to a Board, which, if we are going to vest it with any power at all, will be to all intents and purposes independent of Parliament. If we did not vest it with real power, we should simply be putting a few men into positions in order that they might act as a buffer between Parliament and the Minister, and the latter would thus be enabled to evade the responsibility which ought properly to belong to him. I shall vote against the amendment.
.- I listened very attentively to the interesting speech which has just been delivered by Senator Turley. It appears to me that almost the whole of his arguments go to prove that, as men of common sense, we ought to vote for Senator Millen ’s proposal. He spoke of the system of controlling the railways of Queensland by means of Commissioners, and from his remarks I gathered that some time ago the Chairman of the Commissioners of that State proved a little too strong for political influence-
– Unfortunately, he did not.
– He was a little too strong foil political influence, and as a result the Government of the day found it difficult to oblige their supporters, whilst at the same time giving effect to the policy which was best suited to the interests of Queensland.
– That- was a subordinate Commissioner.
– He was a most able man, as is evidenced by the fact that the moment he left Queensland, he received a splendid appointment. Senator Turley would have the Committee believe that the appointment of three Railways Commissioners in Queensland was a huge blunder - such a blunder that the Government of the day were glad to pay one of those Commissioners three years’ salary in order to get rid of him. But what happened almost immediately afterwards? The Government reverted to the Commissioner system, but, instead of appointing three, they appointed only one, proving conclusively that they realized the necessity for placing the administration of the railways . beyond political control. The next argument adduced by Senator Turley was absolutely fatal to his case, and was practically an admission of everything stated by Senator Millen. He stated again and again - and I do not wonder at it, seeing that as a Labour representative, it is the foundation of the whole of his thoughts - that under the system of a single Railways Commissioner the Minister will not accept responsibility. In point of fact, he will not permit himself to be “ squeezed “ by the Conservative Party, the Labour Party, ^or any other party. Senator Turley, instead of dealing candidly with the amendment, has sought shelter behind the plea that its adoption would enable the Minister to evade his responsibility. Of course, if we decide to appoint a Board to administer this” measure, a great deal will depend upon its personnel. We shall require to appoint experts who thoroughly understand their business. Senator Turley, I think, endeavoured to make rather an unfair point against the leader of the Opposition, seeing that the latter pointed out again and again that what he’ desired was the establishment of an Australian Board, composed of men who would give effect to the wishes of this Parliament. Has not Senator Guthrie repeatedly urged that we do not need to have the Merchant Shipping Act constantly rammed down our throats - that we can frame a Navigation Act of our own? In precisely the same manner Senator Millen desires that the administration of this Act shall be vested in an Australian Board. Perhaps I may be permitted to point out that the principle for which he contends is already recognised in the Bill, as will be seen by reference to clause 416, which provides for the appointment of Advisory Committees. Senator Millen, in effect, says, “ Do not let us have one Committee to advise the Minister as to the framing of regulations, and another to advise as to the manning of vessels. Let us charge one Board with the administration of the whole Act.” The two Committees for which provision is already made in the. Bill will, I presume, require to be paid for their services. I can quite understand the members of the Labour Party taking up the position that they do. But they must not delude themselves with the belief that it is the correct position. They are doing so well by playing cricket with three elevens that they desire to continue that system. But o I hold that its continuance is not in the best interests of the people. Senator Turley’s whole contention is that we must have a Minister who will accept responsibility for the administration of the Act - in other words, who will favour the party which maintains him in office. I do not’ suggest that the members of any party would support the Minister from corrupt or dishonest motives. But Ministers are always amen able to the influences which maintain them in office. In my judgment. Senator Millen has . made out a case which has not been answered in any way. We ought to ap-‘ point a Board to administer the Act so as to secure continuity of policy - a Board possessed of expert knowledge, and free from political control and influences such as have been, exerted in the past.
– - In replying to the remarks of Senator Turley, Senator Dobson was singularly unfortunate in his reference to the political control of the Queensland railways. He stated that at one time there was a Railway Commissioner in that State who was too strong for political control. Where is that officer now ?
– In a much better billet at Home.
– The honorable senator is quite right, and that fact conclusively proves that’ the system of controlling the railways by means of Commissioners does not remove them from political influences of a baneful character. The man who, according to Senator Dobson, was too strong for political control, was obliged to go elsewhere. But Queensland did not revert to Ministerial control in order to secure the removal of that baneful political influence. It merely adopted the system of placing the railways under the control of one Commissioner, who, from inference, we may assume was sufficiently pliable. In that way a buffer was provided for occasions upon which the Minister desired to say, “ It was not me, I did not do it,” and the Minister doubt-, less secured a Commissioner who was sufficiently pliable. The duty of Senator Millen and those who support the change which he proposes is to point to baneful results which have flowed from the system of Ministerial control.
– They are thick around , the honorable senator.
– But, so far, honorable senators have not put their fingers upon any of them. .
– Look at the control of the Post and Telegraph ‘Department.
– The two cases are scarcely analogous. We are not now dealing with an institution like that to which the honorable senator has referred. The railways are a huge commercial concern which is carried on by the State, and is a huge success.
– Under the system of Commissioners.
– The position is altogether different from that contemplated under this measure, which merely seeks to regulate the conditions under which navigation shall be carried on in Australian waters. That is a very different thing from the management of a huge commercial concern.
– Do not questions relating to the wages of seamen, the manning of vessels, and discipline, arise under this Bill?
– They are simply leading questions, such as are settled by Courts of Petty Sessions. Need I point out that the enforcement of the provisions of this Bill will largely rest with those Courts? No analogy can be Instituted between the administration of a Bill of this character and the conduct of a great national concern like the railways. We make laws to control manufacturing industries and various forms of trade, but we leave it to policemen, to Courts, and to other machinery of the State, to enforce those laws. That is what we are doing in this Bill. But, as there are some matters of an intensely technical character connected with the measure, we have safeguarded ourselves against possible incompetence on the part of the Minister charged with its administration - not because of any special stupidity on his part, because the most intelligent member of Parliament and the most intelligent man in the community may be incompetent in a highly technical matter of this sort - by providing for the appointment of Committees to advise him upon certain questions.
– Why not have a Board to administer the whole of the Act?
– For the very reason that we want to get - and I hope that whenever it can Parliament will always insist upon getting- into immediate touch with the administration of any measure which we may adopt. That is a principle which was established after a long fight, and the recognition of which has been looked upon as one of the bulwarks of the liberty of the British people - control of administrative acts by Parliament. It is popular to decry members of Parliament.
– If it were popular the honorable senator would be advocating this proposal.
– The honorable senator can find no warrant in my history for making that remark. I have always been willing to take the unpopular side when it has seemed to be the right one, and, of course, the risk involved.
– The honorable senator has never thought an unpopular side to be right.
– It appears to be a popular thing to decry Parliament andits members. Whenever we are talking of something which must be done with absolute honesty, and in such a way as to give confidence to the people, it is urged that we should have recourse to persons in whom the people have not reposed confidence. Members of Parliament are the chosen representatives of the people.
– The honorable senator would not ask us to repose no confidence in the Judges? They are not elected by the people.
– No, they are. elected by the people’s elect.
– They are elected by the Government.
– They are elected practically by Parliament.
– No, they are se- lected.
– As a matter of fact, the appointment of Judges is an administrative act under a system of responsible Government. What I rose to point out was that Senator Dobson was unfortunate, and, I think, unpatriotic, and certainly unjustified, in suggesting that when anything has to be done it can be done more effectively by persons who are not in Parliament. Most of the persons who are appointed to Boards are men who have been candidates for Parliament, and whom the people have declared they have not so much confidence in as they have in those whom they have elected.
– No doubt the subject under discussion is a most important one, and deserves the best consideration from every, honorable senator. For a very considerable time my mind has been made up on this matter, and elsewhere I have attempted to wipe out Boards which had been created for the purposes to which Senator Millen has referred to-day, because I believe that the elect of the people have no right to delegate to some one else the powers which have been reposed in them. I recognise - perhaps differing a little from Senator,
Trenwith - that the shipping industry and matters connected therewith are more subject to legislation than are other commercial undertakings in the Commonwealth. In the first place, we are asked by the Bill to establish offices for the mercantile marine, where all men are to be engaged for ships. In the next place, it provides for the appointment of officers to see that justice is done between the seamen and the employers.
– Those are police functions.
– No, they are legal functions; because an agreement has to be drawn out and attested before a Government official.
– But they are provisions for the protection of the innocent against the vicious.
– No; the honorable senator is absolutely wrong again. They are provisions for the purpose of seeing that justice is done between both parties. A seaman who is shipped to-day may be discharged at some other part of the world - not even in a British Possession, but in a foreign country ; and so, for the purpose of seeing that justice is done throughout the globe, these offices are to be established under the Bill. Li addition to that, the supervision of the ship on which the man has to serve is one of the functions of the Government. First of all, she must be put on the register and then she is subject to all sorts of inspection. We also provide for examiners to see that men are capable of navigating the ships. The Government discharge more functions in connexion with the shipping industry than in connexion with any ordinary commercial enterprises. As regards the relegation of the administration of the law to a Board, we have the experience of the Board of Trade in the Old Country to guide us, which, in my opinion, is one of the most conservative institutions in the world.
– It has 250 permanent officials.
– We were told just now that the Board of Trade was only the Minister.
– The officials of the Board have worked in a groove ; in fact, it is one of the hardest jobs in the world to move them. I hope that a Board will not be ‘ established here.
Let us now consider the individual experience of the States. A little time prior to Federation,- every State tried the experiment of a Marine Board for the administration of its Navigation Act. Whether the Marine Board was invested with sufficient power by Parliament or not, I am not prepared to say at the present time. But in South Australia, the Marine Board is partly elected and partly nominated, and it has been a most unsatisfactory body. So far as administration isconcerned, it has very little power. It cannot employ a servant, because that right was reserved to the Government. Apart from that, it has very little power to make recommendations. Certain members of the Board are elected by a section of the people, but perhaps that is due to the Act itself. At one time, it included men who were elected by the ship-owners, because of the tonnage which they had held - although the ship had been wrecked, goodness knows where, many years before. In Victoria, there is, I think, a strong feeling that the Marine Board ought to be abolished. I believe that there is a proposal afoot to amalgamate the Metropolitan Board of Works, the Harbor Trust, and the Marine Board. What a nice combination that would be ! It would resemble the British Board of Trade. I cannot see any better plan at the present time than to leave the administration of this measure in the hands of Parliament. I regret that in very many clauses it -is provided that certain things shall be done as may be prescribed or are left to the Minister’s discretion. If he should make a mistake regarding any matter we shall have an opportunity of rectifying it here, which we would not have under a Board.
– And with no buffer between the Parliament and the Minister.
– In the Senate we shall not have the Minister of Trade and Customs, but the Ministry, to deal with. At any rate, the Minister will be in Parliament, and subject to its control. It has been urged that the administration of the law should’ be removed from political control. By all means give us political control, which will be above-board, and be exercised in this Chamber, in the presence of the Hansard reporters and the representatives of the press, rather than the individual control which may be exercised at a Board meeting, with neither Hansard, reporters nor pressmen present.
That influence is a great deal worse than the political influence of which some honorable senators are so frightened.
– It is not the political influence in this Chamber of which we are frightened.
– I do not know of any other influence which can be used. I have had considerable experience, and I know that if an action is done by a member of Parliament it has to be done in the light of day. But, on a Board, an influence can be worked which never sees the light of day, and which is a great deal worse to the people of this country than is the exercise of parliamentary influence. If political influence should be used in an underhand way, the fact must come out. We all know that murder will out at some time, and any public man who uses underhand influence must eventually go down before his constituents. I prefer any influence to be used in the light of day here rather than in an office by some person who is responsible to no one. I trust that the administration of the law will not be removed from Parliament. I was ohe of the members of the Royal Commission who recommended the provision of a manning scale, as it was a highly technical matter as to which .strong opinions might be held by the ship-owners and the men. But what has been done? We say, “ Here is a scale which may be taken as a basis for an ordinary ship. In the case of an extraordinary ship, for which the scale is not adapted, we appoint experienced men to adjudicate.” I aim of opinion that the report of these men should go to the Minister, who should take the responsibility of adopting or rejecting their decision. Parliament would then have an opportunity of saying whether the Minister had acted wisely.
– -.Would Parliament always know?
– If the honorable senator is doubtful as to whether Parliament would know, the reports of the Committee can be ordered to be tabled. Then we shall have the matter in our own. hands. I am prepared to vote for the provision as it stands, and if, .in the future, it is found that the Minister is not capable of administering the Act, I shall be prepared to consider some other proposal.
– I am a half-and-half supporter of the idea outlined by Senator Millen. I believe that some of ‘the functions of government can be more efficiently and econo mically carried out by a Board than under direct Ministerial control. I should like to correct Senator Millen as to Captain Chalmers being a member of the Board of Trade. He is the surveyor of the Board. I believe that functions such as are allotted under this Bill can best be performed under Ministerial control. Railways, the Post and Telegraph Department, and any other trading concerns conducted by a Government, should, in my opinion, be kept within a reasonable distance of political administration. The policy of this country with respect to such functions is not yet settled. We are oscillating in our opinions between Ministerial control, and, on the other hand, delegated authority. ‘ I believe that a line can be drawn with reasonable accuracy. Such functions as quarantine, health, justice, and military affairs, should not be controlled by a Board. But our railways, harbor works, and telegraphs are in a different category. We should wipe out political influence with respect to. them as far as possible. In the States political influence upon public works has operated to the detriment of efficiency. But there is no reason why political influence should be harmful in respect to purely administrative functions. It is hardly to be imagined that political influence can operate with respect to the present measure. The general run of people will not be affected by it, except to the extent that they are passengers or traders coming under it. But our large trading departments affect the whole community. Hence the necessity for their removal from political control. But to remove such functions as are discharged under this Bill from the responsibility of Ministers would lead to a system of bureaucracy which we do not desire to come to pass. We see the result of such an evil in America, and in some continental countries. We need to keep an eye upon the weakness, or the too great rigidity, of the Minister, for the time being, to prevent him from straining the Act to suit his own purposes. There is as I have said, much to be said for extending the Board system to some of the functions of government, but those dealt with by this Bill are such as can be best controlled under direct Ministerial responsibility.
– If any honorable senator is in doubt as to Senator Millen having justification for disapproving of the power proposed to be given to the Minister under this Bill, he may find it in a single page. It will be observed that clause 10 provides that the Minister may establish a marine office in such port as he thinks fit. A marginal reference indicates the Merchant Shipping Act as the ‘source of the clause, but I venture to say that no such section is to be found in that Act. Clause 1 1 also sets out that the Minister may permit matters required to be transacted in a mercantile marine office to be transacted elsewhere, and before such other person “ as he appoints for the purpose.” In clause 12, the Minister is not specifically mentioned, but there is power relating to certificates, and the words “or as prescribed” are used- That means that the final power is again left in the hands of the Minister. In these three clauses, great powers are given to the Minister. In the first instance, he may do as he thinks fit ; in the next, he is permitted to do so-and-so ; and in the third he can do as prescribed. If honorable senators have regard to the prodigious list of measures already administered by the Department of Trade and Customs, they will, I think, recognise the undesirableness of adding to it. To-day, we have the Minister laid aside by illness, while the chief officer of his’ Department has been in attendance on the Senate for days, and is likely to be here for weeks. The Minister who is temporarily taking Mr. Chapman’s place spends most of his time in this chamber. I believe that there are fourteen different Acts under the custody of the Department of Trade and Customs. The Department is rapidly becoming upset by having too much work and responsibility cast upon it. It is likely before long to be in as bad a position as the Post and Telegraph Department is now. There is, first of all, a list of Customs Acts that are administered by this Department. It includes the Act passed in 1901, the Act passed last session, with the South African Customs Act, and, I think, one or two other Customs Acts.
Progress reported.
Sitting suspended from 6.28 to 7-45 p.m.
page 917
-45]- - I move -
That this Bill be now read a second time.
I have introduced this amending Bill with a twofold object. First, to extend the* protection which the principal Act affords to members of organizations, and secondly, to prevent, as far as possible, the appearance of members of the legal profession in any dispute which may be brought before the Court. It has come within my personal knowledge and experience that the protection afforded by the principal Act does not go far enough. Section 9 of the Act reads as follows -
No employer. shall dismiss any employee ‘from his employment by reason merely of the fact that the employee is an officer or member of an organization or is entitled to the benefit of an industrial agreement or award.
I direct the attention of honorable’ senators to the fact that an organization is not recognised as such under the Act until it has been registered, and any protection afforded by the Act does not operate until after the registration. From the time at which an organization makes application for registration until it is actually registered, opportunity is afforded for vindictive or unscrupulous employers to deal harshly with any of their employes who may) have taken an * active part in its formation. I am pleased to say that such employers are rare in Australia, but there are some of them to be found here. I have known instances where men engaged in a particular industry thought it might be to their advantage to form an organization, and apply to be registered under die Conciliation and Arbitration Act, and when this became known they were either dismissed from their employment, or their position was made so intolerable to them that they found it necessary to leave their employment. I can refer honorable members to a case of the kind which occurred in Victoria. My authority is the report of a Select Committee on the coal mining industry, appointed by the Victorian State Parliament on the 27th August, 1907. The members of the Committee were - Mr. Bowser, Mr. Hunt, Mr. Outtrim, Mr. Robertson, and Mr. Wilkins. Only one of the five gentlemen mentioned is a member of the Labour Party in the State Parliament, and consequently the finding of the Committee cannot be said to be biased. One of the subjects the Committee was appointed to inquire into was -
Relations of the companies with unionists. As to whether the companies were aware of the existence of a Union at the time application was made for its registration under the Arbitration Act.
I find that Mr. Lemmon, one of the members of the Victorian State Parliament, said in his place in the House -
When an association applies for registration, it must hand in a list of all the members of the union and the office-bearers, and the regulations provided that any person by paying the prescribed fees, could obtain a copy of the list. The document was not in the office fourteen days, before one of the legal profession on behalf of the company made application for a copy, and as soon as he got it, immediately the brutal treatment of sacking men because of their being members of the association was instituted by these companies.
Mr. Boyd, in reply to that statement by Mr. Lemmon, said -
Another statement he wished to give a point blank contradiction to was the statement that the company employed Brayshay. They had no knowledge of his action, and were not paying him in any shape or form.
The company had no knowledge of the existence of a union.
The Committee called for evidence, and on the evidence submitted to them they reported as follows -
The following papers were laid before your Committee : -
A letter to the secretary of the Victorian Coal Miners’ Association bearing the signature of D. E. Brayshay, as follows : - “ To Mr. Walter Brown, Secretary of the Victorian Coal Miners’ Association, Korumburra. Sir,
Re application for registration by Victorian Coal Miners’ Association, herewith I beg to forward you notice of objection by the Jumbunna Coal Mining Company, and the Outtrim-Howitt, and British Consolidated Coal Mining Company (no liability) to registration as an organization under the Commonwealth Conciliation and Arbitration Act by the Victorian Coal Miners’ Association together with copy declarations in support of such objection.”
Notice of objection by the two companies concerned to the registration of the association under the Federal Arbitration Act, which document was dated 4th December, 1907, and bore the following signatures : - K. L. Murray, chairman of Jumbunna Company; Oliver Veal, director; R. B. Stamp, director; T. Harvey, director; and Wm. Pratt, manager.
A statutory declaration by Howard Stead, mining manager of Jumbunna Company, wherein it was stated, inter alia - “1. That I have seen a copy of the list of members and officers of the Victorian Coal Miners’ Association lodged with the registrar.
That I know and am well acquainted with the following persons, who are included in the said list of members and officers, &c….. “
Your committee concludes -
That the company was fully aware of the existence of the Victorian Coal Miners’ Association and of the steps being taken to register the association under the Arbitration Act.
That Mr. D. E. Brayshay acted with the authority of the Jumbunna Company in the action he took.
– Was that after Mr. Boyd had made the statement attributed to him ?
– That was after Mr. Boyd had denied, on the floor of the Legislative Assembly Chamber in Victoria, what Mr. Lemmon had said. It was after Mr. Boyd’s denial that the Committee was appointed, and I have read the conclusion to which the Committee came after hearing evidence from both sides. It is quite clear, therefore, that in the interval between the date on which an application is made by an organization for registration, under the Conciliation and Arbitration. Act, and the actual date of registration, there is every opportunity afforded to an unscrupulous employer to deal harshly with any employe; who may be an ordinary member of the organization, or who may have taken an active part in its establishment. In order to prove my contention, I propose to quote from the evidence given before the Select Committee to which I have just referred. This evidence was given in connexion with the alleged dismissal of workmen by certain companies because of their connexion with the Victorian Coal Miners’ Association. Mr. Lemmon said -
The brutal treatment of sacking men because of their being members of the association was instituted by the companies. Every member of the committee of that Union had been discharged. He’ had declarations proving conclusively that that was a fact. There was not the slightest doubt that the present conditions, and the reign of terror existing in these mines to-day were an industrial scandal, and an outrage on the rights of the workmen of that particular industry.
Mr. Boyd made the following reply
As far as he was concerned, he could assure the House that the men were being dismissed for incompetency. . . . The men who were not competent to get out 2 tons of coal were not worth keeping, and they were consequently being dismissed.
He was sacked for his connexion with the Union. When he asked the manager the reason, he said - “ They are all free labourershere.”
He was discharged for being a member of the Union, and when he asked the reason was told he would know in fourteen days.
A third witness, F. King, said -
The only thing I think I had the sack for was because I was in the Union … I left of my own accord because I could not make a living. I did not get the real sack. I was sent to a bad place because I was a Unionist.
Another witness, H. Barnes, said -
He left the Outtrim Mine of his own accord, because he was asked to sign a petition against the Union. As he had been a Unionist all his life he would not do so. When he again applied for work he was refused, because he was a Unionist. He otherwise had no complaint ; the manager had always treated him thoroughly well, and he had always averaged good wages.
Later on, J. Sanderson is reported to have stated -
The manager made a practice of stopping half-a-dozen men every day. He would put the petition before them and say they should either sign it or take the consequences. I know that for a positive fact.
I could quote several other instances of a like character.
– How many miners were employed there?
– I cannot say. But the evidence establishes the fact that certain miners were dismissed because they had taken an active part in the formation of a union.
– We have only their word for that.
– I am quoting from the report of a Select Committee which was appointed by the Victorian Parliament to investigate this matter.
– Is the evidence of the miners contradicted by anybody ?
– Yes. But I have already given the rinding of the Committee. The report also says -
Your Committee concludes : though this reason may account for the dismissal of some of the men, it cannot be taken as the cause for a large and somewhat sudden exodus of miners which look place. Your Committee, on the evidence submitted, cannot fix upon the cause.
From that portion of the report, I gather that a greater number of men left their employment than were dismissed because of- their connexion with the association. Upon page 28 of the same report, under the heading, of “ Relations of the company with unionists,” the following appears -
That is convincing proof that those men who had participated in forming this section of the Victorian Coal-miners’ Association were harshly dealt with by their employers. Only a day or two ago we saw the sequel to their action. The coal companies questioned the legality of the registration of this union under the Commonwealth Conciliation and Arbitration Act. They contended that it was not an association, the operations of which might extend beyond the limits of any one State. Mr. Justice Higgins ruled that the registration of the organization was legal, and, upon appeal, the High Court upheld his decision, declaring that although there was no dispute at the present time which might extend beyond the limits of any one State, it was quite possible that such a dispute might arise in the future. I do not rest my case upon the fact that men have been actually dismissed because of their participation in trade union movements. I know that it is very difficult to prove that a man has been dismissed because of his connexion with an industrial organization. But I also know that coal miners, for example, may be required to work under such conditions that they cannot earn a living wage. Even if they are able to earn a living wage, the conditions surrounding their employment may be made quite intolerable, and, consequently, they may be compelled to leave it. This remark is equally applicable to those engaged in other avenues of labour. I have seen men who were in receipt of 9s. per day reduced to 7s. 6d. and 7s. per day because of the part which they have taken in the inauguration of a trade union.
– There is precious little of that sort of thing nowadays.
– I am glad to say that it does not occur very often. I have already said that such a class of employer is very scarce in Australia, but that he still exists I have abundantly proved. It is quite evident that the provisions of the principal Act are being evaded, in that the protection which it was intended to afford to industrial organizations is not extended to them from the moment of their application for registration. I contend that the provision contained in section 9 of the Act should be extended in the direction which I have indicated. In submitting this Bill, I wish to assure honorable senators that I intend no disrespect to the legal profession. I recognise the necessity for employing counsel to argue cases in which legal questions have to be determined. But in industrial disputes nobody is better qualified to put the position before the Court than the employes upon the one side, and the employers upon the other.
– I should like to know whether the alteration which would be effected by this Bill in the principal Act is accidental or intentional. Under the existing law, the President of the Conciliation and Arbitration Court has power to grant permission to either party to an industrial dispute to be represented by counsel. But under this Bill that right is taken away from the President.
SenatorNEE DH AM. - In the principal Act, the provision reads - “ By leave of the President.”
– It reads, ‘ ‘ except with the consent of all parties or by. leave of the President.” The Bill submitted by the honorable senator reads, “ and by leave of the President.”
– My intention is that counsel shall not be permitted to appear before the Court without the consent of all parties to any dispute and of the President.
– That consent will never be forthcoming, because the party which has the strongest non-professional advocate will refuse it.
– Nobody is able to put the facts connected with an industrial dispute before the Court better than the employes and employers affected. But should it happen that legal questions are involved, and should both parties to any dispute, together with the President, consent to the appearance of counsel, it will be quite open for lawyers to appear.
– Suppose that the President of the Court desires the assistance of lawyers to guide him in his decision.
– I fail to see how he can require that. If both parties to an industrial dispute, as well as the President of the Arbitration Court, agree upon the matter, I have no objection to the appearance of counsel.
– Then the honorable senator proposes to alter the provisions of an Act the consideration of which occupied many hours.
– There are certain organizations which, by virtue of their membership and strong financial position, are able to defray the cost of counsel. For instance, a little time ago the Shearers’ Union secured an award from the Arbitration Court, one of the leading members of the legal profession having been briefed on its behalf. But that union had to pay £1,250 for the services of counsel, and I do not think that there are many unions in Australia which could afford that.
– That amount was absorbed in legal expenses - it was not paid for the appearance of counsel.
– It represented the whole of the expenses connected with the appearance of counsel before the Court.
– Very often the expanse of feeing counsel represents only a small portion of the total cost.
– But if no counsel were engaged there would be no legal expenses. I have given honorable senators my reason for submitting this Bill. It is admitted that it is desirable to protect industrial organizations registered under the Conciliation and Arbitration Act, and I think that I have proved conclusively that the provisions of section 9 of that measure are being evaded. I desire to extend those provisions so as to afford protection to industrial organizations from the moment of their application for registration under the Act. I repeat that there is no necessity for the appearance of counsel before the Conciliation and Arbitration Court without the consent of both parties to any industrial dispute, as well as of the President of thattribunal.
– With the main purpose which Senator Needham has in view in submitting this amending Bill, I am entirely in accord ; and I think that honorable senators who remember what took place here and elsewhere when the original Bill was under discussion, will know that the whole principle of our arbitration law was based upon the existence of organizations on the part of the disputing parties. It was understood that there should be an organization on the part of the employers and an organization on the part of the employes in any industry in respect of which the provisions of the law were to be applied by the Court of Conciliation and Arbitration. It would be impossible to carry out the main principles of conciliation and arbitration in respect of any industry, unless there was an organization on either side which was to be bound by whatever awards or decisions might be arrived at by the tribunal. Recognising that as the basis of the whole system of conciliation and arbitration, Parliament very wisely provided in section 9 of the Act that -
No employer shall dismiss any employee from his employment by reason merely of the fact that the employee is an officer or member of an organization or is entitled to the benefit of an industrial agreement or award.
Very wisely, Parliament enacted that provision, because otherwise there would always have been the possibility, although perhaps not availed of frequently, that the attempt to establish or to maintain intact an organization of employes might be frustrated by action on the part of employers, in the nature of dismissal, or other interference with individuals constituting that organization of employes. A penalty was therefore imposed upon any employer who, for the fact, and by reason of the fact only, that an employe belonged to an organization, dismissed him. But while Parliament made that provision in section 9, it made in section 10 the following provision -
No employee shall cease to work in the service of an employer by reason merely of the fact that the employer is an officer or member of an organization or is entitled to the benefit of an. industrial agreement or award.
So that the employer, as well as the employe is protected when he joins an organization, so far as those particular provisions will give that protection. At the time Parliament contemplated existing organizations. It was necessary to have machinery for giving effect to the general principles of our legislation, and provision was made for the registration of organizations on compliance with such conditions as might be laid down in the regulations to be prepared under the Act. The regulations were prepared, and one provision in them is that the registrar, when he receives an application for the registration of an organization under the Act, shall cause a notice, in form 3, of the receipt of such application to be advertised in the Gazette. I need not read the form ; it is sufficient for me to say that it is simply a notification through the columns of the Gazette that an application has been received for the registration of a particular organization, and an intimation to all concerned or. interested, that if they desire to oppose it, they may do so within thirty days. That means that from the time of the advertisement, not from the time of the receipt of the application, a period of at least thirty clays must elapse before the organization can be registered. The organization is an association, properly formed, no’ doubt. But so far as its character as a statutory organization is concerned, it is simply inchoate, a period of at least thirty day’s must elapse. It has been alleged- with what truth I am not in a position to say - that in one or two instances where an organization has applied for registration, and a notification of its application has been advertised, during the period elapsing between that notification and the actual registration employers have dismissed employes connected with the applicant association. Technically and legally, it is quite possible that they would not thereby bring themselves within the four corners of the prohibition contained in section 9 of the Act, because it is an applicant association during that period, and only becomes an organization under the Act when it has obtained registration. Whether that be so or not, I think that all honorable senators who supported clauses 9 and 10 of the original measure in 1904, had no idea that there would be an interval of time before it would become an organization under the Act, which would enable any one to evade the main principles laid down in those provisions.
– Could not the object be attained by altering the meaning of the word “ organization,” in the principal Act?
– I do not know; because that word is used frequently throughout the Act. 0
– Does not the definition as it stands enable the GovernorGeneral in Council to proclaim an association as an organization?
– That may be in certain instances.
– The definition seems to anticipate this trouble.
– It may ; but I am speaking now of -the general principles of the amending Bill, not ‘details. So far as Senator Needham’s object is to prevent the general principle of section 9 from being evaded merely because an association cannot become an organization until the lapse of a certain period, I am in entire accord with him ; and I believe that members of the Senate and another place will be in entire accord with him on that principle. For that reason I have no objection to the Bill being read a second time, and taken into Committee. I have already circulated amendments, and, no doubt, honorable senators have had an opportunity of seeing what would be the effect of them if carried.
– They are merely complementary to the Bill.
– Yes. One amendment to insert as new section 10a a provision similar to proposed new section (ja to deal with the case of an employe absenting himself from his occupation by reason of the employer forming with his coemployers an association or an organization under the Act. That provision will be necessary if we pass proposed new section qa: I think that we should also insert a similar provision in regard to proposed new section 10a. Another amendment I have given notice of is to make it a punishable offence for an employer to dismiss an employe^ or for an employe to cease work for an employer during the period that must elapse before the registration of an organization. I propose that no action shall be taken in any such instance for a breach on the part of the employe or employer without the leave of the President or the Registrar. We have a similar provision in other parts of the Bill, that is to say, that an action shall hot be instituted for a breach of either of these prohibitive provisions unless on the certificate of the President or Registrar. The object is to prevent a hasty disposition on the part of either side to precipitate trouble by instituting proceedings on what might be evidence of a very flimsy character.
– Can the Minister point to a. section of the Act where that leave has to be obtained?
– Section 9 provides that-
No proceeding for any contravention of this section shall be instituted without the leave of the President or the Registrar.
A similar provision is contained in section 10. I think that if we are going to extend sections 9 and 10 in the way contemplated by this Bill, and as regards section 10, in the way contemplated by my amendment, we should also apply to the provision this ‘ precaution. I regret that I cannot agree with Senator Needham with regard to the employment of counsel in these matters. I do not wish to debate the question at this stage, but to point out to him that he has argued in defence of this particular proposal mainly from the point of view of the cost to the unions engaged in these proceedings. Thé enactment of such a provision as is contained in proposed new section 27 will not in the least degree prevent the accumulation of the expenses to which he has referred. It will simply impose a prohibition upon the appearance of counsel or attorney.
There will be nothing in such a provision to prevent the preparation of the case by legal authorities, to prevent the whole of the case, up to the actual presentation of it by an officer or an agent of the union, from being handled by persons who will naturally look for costs for their work.
– But their costs could not be made costs in the cause.
– No but they would collect their costs all the same.
– From the employer ?
– I can assure my honorable friend that it is not merely the cost? in the cause.
– But those costs could not be passed on to the other part v.
– Certain! v not. There is nothing to prevent costs from being incurred, simply because there is no appearance of either organization in the Industrial Court by counsel. It will be found, in many instances, that, although the matters in dispute may be questions of fact, yet it will be necessary to have experienced lawyers to deal with the presentation of such questions in their proper and ordinary sequence to the Bench. Another thing that it will be well for honorable senators to remember is that though there may be a multitude of issues of fact to be decided iri any particular case, yet, in the determination of those issues, there mav be involved a number of very far-reaching principles, and it will be of immense advantage not only to the particular side which may engage counsel, but also to the Court itself, to have counsel engaged for the proper presentation of the case. It is for that reason also that I differ from Senator Needham as to the wisdom of amending the provision of the principal Act with regard to the appearance of counsel, and making that only possible when both parties and the Court itself are agreeable. With these modifications, and these objections to the measure, I do not see why we should not read it a second time, and pass the provisions with regard to sections 9 and 10 of the Act, subject to the precautions and qualifications I have indicated in my proposed amendments.
– I wish to refer only to one matter in connexion with this Bill. The main principle of it will commend itself to all those who supported the original measure. Its purpose is to amend that measure by affording to members of a trade union a very proper protection, and to give similar protection to those who take the initial steps in the formation of a union. To that extent the Bill will commend itself to most of us. The only point to which I wish to refer in detail is that which was last dealt with by the Minister of Home Affairs - whether it is desirable to permit lawyers to be employed or not. Unfortunately for the noble profession to which my honorable friend belongs, we have, in nine cases out of ten, shut the lawyers out of a job in the Arbitration Courts. The only question now is the amendment sought to be made by Senator Needham. I wish to suggest that, in the interests of equity, we should leave that particular portion of the Act as it Stands.
– Does the honorable senator think that that portion of the Act is equitable?
– I am not now concerned with that point. The only matter before us for consideration is the alteration submitted by Senator Needham;and what Senator Needham stipulates for, or desires to provide, is that there shall be no appearance of counsel or solicitors, except the two parties to the case and the Court itself agree. Now I venture to say that such an agreement would rarely be brought about for this reason : When two organizations appeared before the Court, each would be likely to have a knowledge of the probable representative of the other side; and the side which for the time being happened to have the strongest lay advocate would naturally demur to any legal assistance being obtained. That result might, and probably would, hurt my honorable friends in the Labour corner as much as it would hurt the organization of employers.
– It would be fair to all.
– It might, be monstrously unfair to one side in a dispute. It seems to me that the law, as it stands in this regard, is fair. What it says is that if the two parties to a dispute agree to have lawyers, they can do so. If they do not agree, or are quiescent, the Judge will then, either upon his own volition or upon the application of one of the parties, if the circumstances are’ such that trained assistance would be advisable, have power to direct that it may be obtained. That is a discretion which we can safely leave to the Judge, not merely because of the assistance that the appearance of lawyers may give to him, but for the protection of any party that may not be in a position to state his case fittingly. For that reason, what I have indicated is an amendment of the law proposed by this Bill, which I feel bound to oppose.
– I support the Bill as it stands, although, in my opinion, it does not go far enough. Unfortunately, it is not so rare a case as some honorable senators are inclined to think for men to be dismissed from their employment because a union is registered. We have had cases in this State where every decent unionist has been driven out of a certain district. The case of the Victorian coal miners may be mentioned. The men who set themselves to prevent the formation of unions are generally very tricky. When they wish to upset a union, they generally start a kind of, mutual benefit organization, which they say is superior to an ordinary trade union. That is to say, they start a rival organization to the union about to be registered.
– A bogus union.
– I would not use the word “ bogus,” because it is too respectable for what I am describing. In one case the mining manager, who was most vigorous in fighting the men whenthey were on strike, afterwards became the president of one of these rival trade unions.
– That is an instance of the lion lying down with the lamb !
– Unfortunately there was no lamb in this instance, because he was swallowed before he had time to lie down. The practice pursued was not to ask workmen whether they belonged to, or were officers of, a tradeunion, but to wait upon each man employed in a mine, and ask him to become as member of the rival union, which had as mining manager as its president. The moment a man refused, it was a common saying among his workmates, “ Seven days’ notice for you, old man “ ; and somehow or other the employers managed to find some fault with him, and he was soon driven out of the district. To-day, every decent unionist who had the manliness to stand up and fight for proper conditions of labour has been driven out of the coal mines in one part of Victoria. Some of the men driven out have been considered good enough by the people of other States to be elected to Parliament, though they were not good enough to work in the Victorian coal mines. If this Bill is to give protectionto those whom our Arbitration Act is supposed to benefit, it will have to go much further. It is a step in the right direction, but I trust that an opportunity will be found of extending its principle, so as to prevent what is practically the boycotting of genuine trade unionists. With regard to the admission of members of the legal profession into Arbitration Court cases, I congratulate ‘ the Minister of Home Affairs on being a good trade unionist. I only wish he was as earnest in advocating the rights of the workers as he is in standing up for the interests of his own union. I remind him that this is not the first occasion on which he “ has opposed the principle of keeping lawyers out of arbitration cases. Before to-day he has had to accept defeat on this principle. I had hoped that after the decision given by the Senate on a previous occasion, the Minister would have accepted the inevitable, and seen fit to accede to the principle laid down in the Conciliation and Arbitration Act.
– Then the honorable senator would have wanted to go a little further.
– I hope that the Senate will be prepared to go a tittle beyond what Senator Dobson desires, in order to secure justice for the worker.
– Everything is “ for the worker.” We want to do justice all round.
– I am not prepared to accept mere mouthing about justice as being sufficient. ‘ We want the worker ‘to have justice secured to him in the Acts passed by this Parliament.
– The honorable senator constitutes himself a judge of what is justice.
– It is wellknown that it is absolutely impossible tor many of the poorer trade unions to pay for the services of counsel to appear in the Arbitration Courts. Many unions are kept from securing a.wards because of the legal fees which they are not able to bear. If honorable senators are not willing to make it possible for the weak unions to appear before the Arbitration Courts, they will deny justice to the men concerned.
– Cannot the honorable senator trust the Court in the matter?
– I would not trust the Court, because I know that many unions have been nearly ruined by the depletion of their funds through legal expenses. When this question was last be fore the Senate, I read an official statement from the secretary of the Trades Council in Sydney, who said that they had spent between £5,000 and £6,000 in fighting cases. If the law of this country means that when the workers attempt to secure justice, they must be prepared to spend thousands of pounds, it is a failure, and will be of very little use to the workers. One of the objects of arbitration, apart from securing industrial peace, is to secure justice and reasonable conditions of labour. If the worker, who obtains an award equivalent of £1 from an Arbitration Court, has had to pay 12s. to get it, the benefit to him is considerably diminished. Yet that has been the position of many workers in this country. They have afterwards had to sustain very heavy levies out of their wages to pay the lawyers’ fees. I know one case, in this State, where a weak union took a case to Court. The lawyers engaged were feed up to a very high figure. When, in the middle of the case, there was no more money forthcoming, the legal gentlemen who appeared for the workers refused to proceed further unless guaranteed their fees by bills. That is not a fair position in which to put the workers. The Bill should go even further than Senator Needham proposes, because, as the Minister of Home Affairs has mentioned there is nothing in it to prevent a member of the legal profession from preparing a case. I know of cases in this State where, although lawyers have been denied the right to appear in certain Courts, they have actually sat at the elbow of the non-legal advocate of the employer, who simply had to give utterance to words whispered into his ear from a brief. It is impossible for our arbitration law to be a success if these conditions are to prevail.
– It appears that the arbitration law is of no use anywhere.
– The principle of arbitration, if carried out fairly between the employing and employed classes, without the intervention of those who would make the cost of arbitration proceedings prohibitive, may be good. But arbitration that penalizes the workers by compelling them to pay great sums of money to fight a case, is of little use to them. Our object should be to make the arbitration law as cheap, efficient, and workable as possible to both sides. That object will not be attained if the legal profession are permitted to appear in these cases. I trust, therefore, that this Bill will receive the assent of the Senate, as it will be a step in the direction of securing what was intended by the Federal Act.
.- Senator E. J. Russell speaks so clearly and eloquently that one might wish that he would favour the Senate with his views more frequently. But, although the honorable senator speaks clearly and logically, I cannot conceive that his idea of justice should govern every member of the Senate. In these matters each of us must do what he personally -believes to be right. I think I shall be able to show that, consciously or unconsciously, unfairness is stamped on the face of this Bill. We had a long fight over the employment of barristers and solicitors before the Arbitration Court, and, as a result, the Government had to accept defeat. I do not know whether I took part in the debate, but if I did it is possible that I was one of those who were defeated. I admit with perfect candour that I see a very good reason indeed for excluding barristers and solicitors from these industrial Courts, as a general rule. A rich organization of employers might wear out and bear down an organization of comparatively poor employes. The longer purse might give to an employers’ organization a great advantage over the union with which it was in conflict. I freely admit that, and therefore Senator E. J. Russell has done me an injustice: Possibly my sense of justice to all parties is greater than his own. I have said that we had a very long argument over the section of the Conciliation and Arbitration Act which has been referred to, and the Labour Party got their own way. But. not content with defeating the Government, whom they keep in office, and with getting their own way, they now wish to make the section more exclusive and unjust. Senator Needham proposes now that members of the legal profession shall appear before the Arbitration Court only bv consent of both parties, and of the President of the Court. The honorable senator, without any qualification, said substantially that he hoped we would not consider that his action was due to any prejudice against lawyers. He said he had none, and admitted that the appearance of lawyers in the Court would be useful in cases in which questions of law are involved. But there the honorable senator stopped, and in his Bill he says that .however involved and intricate the questions of law may be, however much the President of the Court may desire legal assistance, and whatever the argument urged in favour of their appearance, he must go one better than his theory and admission, and in his Bill he sets aside justice and deliberately gives an advantage to the worker, to the disadvantage of the employer. Although the President of the Court may say, “ This question is bristling with legal difficulties, and I desire the assistance of the best barrister you can get,” one of the parties to the dispute may answer, “ We are very sorry, but we do not desire that any lawyer should appear in this case, and, therefore, you cannot have legal assistance.” The section of the principal Act, which Senator Needham would amend, is more fair and is more in accordance with the honorable senator’s own professions, than the amendment he seeks to carry. I shall give another instance of the unfairness stamped upon the face of this Bill. We all know that Labour members and unionist leaders and officers practically devote their whole lives to politics. They are at it every night - at least four nights out of six. They are practised in speaking, and know all the industrial points, and the tricks, and quibbles. ‘ lt would be possible to pick fifty men from a union who could state a case before an Arbitration Court where you could get only one from an employers’ organization. The reason is simply that the unionists have practice. They do scarcely anything every night but talk and dispute and argue at meetings of their unions. The employers scarcely ever have such meetings. They devote their time to looking after their business, and possibly some of them have never made a speech in public in their lives. I object that Senator Needham should try, not only to prevent the appearance of a barrister or solicitor before an Industrial Court, but the appearance also of an agent. As Senator Millen has said, if they had to meet a smart employer who could run rings round the unionists - though possibly it would be very, much more often the other way about - they would say, “ Yes, Mr. President, we quite agree with you that a barrister should be employed to assist you in dealing with this case.” . But if they had a man of their own better versed in argument and in dealing with the question in hand than the man representing the employer, they would say, “ We are very sorry, Mr. President, but we cannot give you legal assistance in this matter.” Where is there any justice in this Bill? Really an attempt is being made to alter the whole tenor of the principal Act. The Minister of Home Affairs was quite right in contending that the principal Act should be allowed to remain as it is. Why should honorable members of the Labour Party attempt to destroy the whole framework of the principal Act in order to give a distinct advantage to the workers whom they represent? I have no sympathy, whatever with attempts of this kind. Let me say that justice carries with it its own vindication. Neither Senator E. J. Russell’s idea of justice nor my own will alter facts, and so soon as any party - I do not care what party it is - departs from justice and British fair play so soon will that party have to suffer for it.
– This Bill represents merely an echo from a long struggle which took place in the Federal Parliament. I do not intend to deal at length with the issues involved. Senator Needham, in moving the second reading of the measure, practically rested his whole case upon a dispute between members of a coal-miners’ association and their employers in Victoria, that was the subject of an inquiry by a Select Committee appointed by the Victorian Parliament. The members of the Coal Miners’ Association desired to be registered under the Conciliation and Arbitration Act, and because of what followed’ upon a step taken in that direction Senator Needham asks us to amend the law. I hope the honorable senator will excuse me if I saythat there is something suspicious about the proposal. The honorable senator will understand me when I ask him how it happened that tlie Wages Board system of Victoria did not meet the case of the Coal Miners’ Association.
– There is no Wages Board for the coal-mining industry in Victoria.
– Wages Boards are provided for under the Victorian Factories Act, and a coal mine is not a factory.
– I asked the question because it appeared to me that the appeal- of the Coal Miners’ Association should have been to their Wages Board.
– They have no Wages Board to appeal to.
– I accept the correction that that method of appeal was not open to them. I admit at once that
I am not intimately acquainted with tlie details of the Wages Board system in Vic- toria, and I now ask whether it would not have been possible under Victorian legislation for the Coal Miners’ Association if they had so wished to secure the formation of a Wages Board in their industry.
– No.
– Then ‘not only have the coal miners in Victoria no Wages Board, but there is no legislation passed by the State Parliament which affords them the means of securing the appointment of such a Board?
– They have not even a Mines Regulation Act.
– If that be so they were fully justified in having ‘recourse to the Federal Conciliation and Arbitration Act.
– The Bill, if passed, will be applicable to the whole of the Commonwealth. Senator Needham mentioned the Victorian case only as an instance in point.
– I have received sufficient corrections from the other side. I must admit that it was news to me to hear that the extensive workers legislation of Victoria has made no provision for the coal miners or, I presume, for the gold miners of the State. If that be so the Victorian legislation is certainlydefective.’ State legislation which does hot provide by means of Wages Boards or Industrial Courts for the settlement of industrial disputes must be held to be defective. It is to be hoped, if I may be pardoned the digression, that Victorian politicians will set to work and try to give the coal miners of the State the benefit of their industrial legislation.
– The honorable senator might plead their cause at some of the National Association meetings he attends.
– I am perfectly well able to assert and maintain my position inside and outside this Chamber. I agree with the Minister of Home Affairs as to the way in which counsel are treated.
– On behalf of the honorable senator’s trade union?
– If lawyers aretrade unionists, why not put them on the same footing as other unions and permit them to exercise their profession wherethey please?
– The lawyers’ union* supports preference to unionists.
– I know that in almost every Parliament it is becoming the practice to treat members of the legal profession as pirates and a danger to civilization. They are told that they are members of the greatest union in the world, but if they are unionists why should other unionists deny them liberty to practise their profession?
– Is the honorable senator aware that the members of his profession have a Wages Board that is appealed to in order to prevent them from charging too much?
– I am aware of the fact, and I thank the honorable senator for the interjection.
– It is the one discreditable thing that I know about the honorable senator’s profession.
– That reminds me of a story which I have heard about Lord Bowen, who, dealing with the way in which lawyers were fettered by prescribed costs, said that there were only two classes of the community whose wages were fixed by law - lawyers and cabmen - and both, as a rule, were miserably treated. What are the reasons urged in favour of the exclusion of counsel from the Commonwealth Conciliation and Arbitration Court? It is alleged that if lawyers were permitted to appear, a wealthy employer who was able to fee counsel would have a great advantage conferred upon him in a conflict with his employés. But I would point out that under the principal Act the question of whether or not counsel shall be permitted to appear before the Court is within the discretion either of the President or the Registrar. In ninety-nine industrial disputes out of one hundred I am free to admit that lawyers would be of very little assistance. But cases may arise in which questions of fact will involve very grave industrial issues, or possibly issues of law. Under such circumstances, who would be the best judge of whether counsel should or should not be employed? Surely it would be the President or the Registrar of the Arbitration Court. I can well understand that a small union might not be able, even if the President expressed a desire that counsel should be employed, to fee a lawyer. But if a very grave issue were involved, surely their fellow unionists would co-operate with them and support them by monetary contributions.
– That is awfully thin.
– I apprehend that in such circumstances a strong trade union like the Shearers or the Seamen’s Union would say: “Here is a small union, which has not sufficient funds to fight this battle. The issue involved is one of great industrial importance to its members, as well as to us, and therefore we ought to go to their assistance.” At any rate, I do not entertain such a poor opinion of the general body of unionists as to think otherwise. The President of the Arbitration Court, in addition to possessing legal knowledge, will probably have had some experience of industrial matters, and he will be the best judge of when it is proper to permit counsel to appear before that tribunal. He is not likely to grant that permission unnecessarily. He will grant itonly in cases in which the appearance of counsel would be of material assistance to him.
– What does the honorable senator suggest?
– I suggest leaving the law as it stands. The grievance of the general body of trade unionists is not nearly so strong as has been represented by some honorable senators.
– The honorable senator has simply made assertions which have no application to the case. He does not know anything about industrial conditions.
– I think that is more or less obvious. I have never pretended that I did. I say that there are some cases in which the parties to an industrial dispute are themselves most fitted to present their case to the Court, but, as a rule, I submit that the President of that tribunal is the best judge of when counsel should be permitted to appear before it.
– In supporting the second reading of the Bill, I would suggest that honorable senators upon this side of the Chamber might in future revise their views of Senator Dobson. In the past we have encountered the opposition of that honorable senator to measures of this description, but I am hopeful that in the future he will adopt a different attitude. I have just been reading the speeches delivered before the PanAnglican Congress, and amongst them I find one by Senator Dobson which leads me to believe that in the future we shall not only find him supporting measures of this kind, but also much more advanced legislation. For instance, he told the distinguished clergymen of that Congress -
We might have to go slowly, but for goodness sake let us go.
– Where?
– The honorable senator was following a speaker who had been advocating Socialism bald-headed - a gentleman WhO declared that the wages system had come to an end. I apprehend that considerable assistance will be extended to the advocates of improved industrial legislation by the honorable senator, because 1 believe that he is dissatisfied with the pace which has been observed hitherto. Senator Needham may well congratulate himself upon the unanimous desire which has been expressed that the same measure of protection which has been extended to unions after their formation shall also be extended to them from the date of their application for registration under the Act. I was glad to Hear honorable senators declare their willingness to throw this mantle of protection around industrial organizations. From my own experience of trade unions, I know that that is the time when they are most victimized. It is the period when the blow is most vital, and consequently, when protection is most urgently needed. Coming to the question of whether counsel should be permitted to appear before the Conciliation and Arbitration Court, I think that we need to look at this question in all its bearings. It ought not to be assumed that because the Bill has been submitted by a Labour representative that it is one upon which honorable senators ought to take sides. At the present time there are various industrial Courts established throughout the Commonwealth. In New South Wales there is an Arbitration Court, before which lawyers are at liberty to appear. In Victoria and South Australia, Wages Boards have been established, before which they cannot appear. In Western Australia there is an Arbitration Court, before which lawyers cannot appear, and in Victoria there is also a State Appeal Court before which members of the legal profession are permitted to practise. The last-named is a recentlyestablished tribunal, but already it has been condemned, and it is practically doomed. In the great majority of these Courts, members of the legal profession are prohibited from appearing.
– Cannot they appear before them with the leave of the Court ?
– No. It is recognised that the disputes which have to be determined are industrial disputes pure and simple. Employers and employes therefore put their respective cases to the Court. In the State arena it is only matters of industrial moment which have to be settled. No legal questions can come before those Courts, because their ambit is not restricted by a written constitution such as ours. Therefore an unanswerable case can be made out for prohibiting the appearance of lawyers before them. But in the case of the Commonwealth Conciliation and Arbitration Court, a new element creeps in by reason of the Federal Constitution. It has” been suggested that lawyers should be permitted to appear before the Court because they can argue not only the industrial but the legal aspect of any case. The answer to that contention is to be found in the fact that the principal Act provides a method by which, should a legal point arise during the hearing of a case, it can be settled by the body which is best fitted to deal with it, namely, the High Court. Now, the only question which can arise in such cases - and this is what differentiates the Commonwealth Court of Conciliation and Arbitration from the State Courts of Conciliation and Arbitration - is whether the dispute before the Court is an industrial dispute within the meaning of the Constitution ; in other words, whether it “extends beyond the limits of any one State.” That is purely a legal question.
– Ob no.
– I think so. In that particular instance I can see a reason why the question should be argued before a legal tribunal. But the principal Act already provides for that. Sub-section 2 of section 31 reads -
Surely nobody will doubt the competence of the Court to say when such a question does arise? Surely that tribunal is more impartial than an advocate upon either side, and can therefore -be trusted to say whether any industrial dispute is a dispute within the meaning of the principal Act. In such circumstances, the Court would state a case for the High Court, and that case would be argued upon legal grounds.
– In the absence of lawyers in the lower Court, who is going to raise the question of unconstitutionality?
– The section provides that the President may do so without a request from either side. It should be remembered that this measure is placed in the hands of a President, who is a Judge of the High Court, charged with the safeguarding of the Constitution, and that one of his duties will be to see that its provisions are not infringed by any legislation which he is called upon to interpret.
– But in most cases these complicated law points only arise out of the arguments of legal gentlemen.
– That is what I think we ought to avoid. The only legal question that can arise is : Is this a dispute within the terms of the Constitution? That question arises immediately a case goes before the Court. Surely the first point which the Judge will have to determine is whether it is a case on which, under the terms of the Constitution, he should adjudicate.
– Mr. Justice Higgins decided that very point contrary to the way in which the High Court decided it afterwards, and, therefore, he would not be likely to submit such a point to the High Court.
– Did he do so under the Conciliation and Arbitration Act?
– No ; under theHarvester Excise Act.
– The case which was decided by the High Court arose under the Harvester Excise Act, a taxation measure, and therefore it is not on all fours with the case I suggested. If the honorable senator wants a case which is on all fours, there is one which he could have quoted, and that is the case of the railway servants. If my memory serves me aright, the point was taken not by one of the parties, but by the President, Mr. JusticeO’ Connor, who stated a case for the decision of the High Court.
– The honorable senator will admit the possibility of a Judge assuming, or believing, that the case before him did not involve a constitutional point, and therefore not sending it on to the High Court, whilst every one else in the country might believe that it did.
– That is a very farfetched idea.
– It is not, in view of the difference between Mr. Justice Higgins and his colleagues.
– The Judges who now constitute the High Court know the Constitution, and its principles better than do the rest of the people of the Commonwealth.
– They cannot agree as to what it means.
– Yes; they can agree on all great principles.
– We have had decisions by three Judgesto two.
– The only legal question which can, or should, arise in the Conciliation and Arbitration Court is : Is this a dispute within the terms of the Constitution ? The circumstances of the case are sketched to the Judge by the respective parties. He learns from the evidence where the dispute originated, and how far it has spread, and surely he is in as good a position as any lawyer who is retained by either to say :” In my opinion there is a question arising here as to whether this is a dispute within the terms of the Constitution. I intend to state a case for the High Court, and to have it argued from the legal stand-point.” By that means, we get this advantage ; that the legal question will be argued where it should be argued - before a legal tribunal according to legal procedure. In the principal Act, it is distinctly laid down that the judgments of the Conciliation and Arbitration Court shall be based on the grounds of equity and good conscience, and not according to legal procedure at all. Furthermore, both parties, if they wanted to defend the legal position, would have to retain counsel who, perhaps, would be absolutely ignorant of the industrial position, but who would be fully capable of arguing the legal question. And if the High Court decided that it was a dispute within the meaning of the Constitution, it would go back to the Industrial Court, and the only duty of the latter Court would be to hear argument or accept evidence as regards the industrial question. I maintain that in setting up the Conciliation and Arbitration Court, Parliament did not intend to set up a second High Court to deal with constitutional questions, or a law Court of any sort. On the contrary, it was intended to set up, as the Act expresses, an industrial Court pure and simple, and that was the reason why section 31 was enacted. I contend that, notwithstanding that in the Federal arena the legal question may arise, that section lays down the procedure by which a case can be settled before the proper tribunal. It gives the best justification for the acceptance of the second portion of this Bill.
Motion (by Senator Mulcahy) proposed -
That the debate be now adjourned.
– No adjournment.
– I understood that the honorable senator was willing to consent to an adjournment of the debate at 9 o’clock.
– I made no such arrangement.
– I acted under a misapprehension, sir, and I ask leave to withdraw my motion.
Motion, bv leave, withdrawn.
– I only wish to bring a few points in the original Act before the notice of the Senate. The first point is that the President of the Conciliation and Arbitration Court must be a Judge of the High Court. The next point is that the Court is freed as far as possible from all legal trammels and technicalities in hearing and deciding on a case. It received this specific instruction from Parliament -
In the hearing and determination of every industrial dispute the Court shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks fit.
– But what question of law can arise except the question, of jurisdiction ?
– That is impossible for a layman like myself to anticipate. Having instructed the Court to treat the case on its merits, according to equity and good conscience, Parliament proceeded to enact this provision -
On the hearing or determination of any industrial dispute, an organization may be represented by a member or officer of any organization, and any party not being an organization may be represented by an employee of that party ; but no party shall (except by the consent of all the parties, or by leave of the President) be represented by counsel or solicitor.
In that section, what instructions did Parliament give to the Court? That it did not wish the expense, or the delay, or anything which was likely to result from the employment of counsel, to take place unless it was necessary. It is proposed in this Bill, however, to tell the President of the Court - a Judge of the High Court - that Parliament does not trust him in the small matter of saying, when an application is made to him, whether it is desirable that counsel should be present or not. I desire to call the attention of the Senate to a . somewhat incorrect idea which has been put forward to-night, and that is a kind of assumption that the President could demand the employment of counsel. He is not vested with that right. He has simply to decide on the application of one of’ the parties, whether in justice to the other party, and to the Court itself, it is desirable to allow counsel to appear. The Bill proposes to throw a slight upon one of our most cherished institutions. If there is one institution throughout the Empire which should be respected, it is the judicial institution. We are going to allow important issues to be decided by the highest legal authority in Australia, and, at the same time, it is proposed to tell him that he is not to be trusted in the comparatively minor matter of saying whether it is desirable to allow counsel to appear or not.
– I have no desire to oppose the second reading of the Bill. I am a trade unionist, I believed in the principle when I was in the ranks of labour, and still believe in it. In my own business, I have always found that the simplest and easiest way to settle a difficulty is to meet the trade union. I have never experienced any trouble in that regard, and I do not wish to appear now to be opposed to trade unionism. I do not think that clause 2 of the Bill and the additional provision to be proposed by the Minister of Home Affairs, are any good.
– The honorable senator cannot discuss an amendment which is to be moved in Committee.
– It will suit my purpose just as well to refer to the clauses of the Bill. If an employer is determined to be spiteful - and I hope that such men are very few - what will be the good of those provisions to the employ^? An employer has one hundred and one different ways of making the position of an employe so uncomfortable that he will be glad to clear out.
– The existence of such an Act has a certain measure of moral effect.
– I rather doubt that. On the other hand, if an employswants to leave, what is the good of the employer endeavouring to prevent him from going? The man would not be worth a place in the establishment. Section 9 of the principal Act provides a certain procedure, and this Bill seems to me. simply to cover the period antecedent to the registration of an association. Logically, it may just as well be passed. I do not intendto offer any opposition, although my opinion is that, so far as any real effect is concerned, the clauses are not worth the paper on which they are printed. I am altogether opposed to the clause dealing with the employment of counsel. If the parties or the President desire the appearance of counsel, it should be allowed. There is a provision in the Electoral Act which provides that in an appeal case a Judge may decide whether counsel shall, or shall not, be permitted to appear. In a recent case in which I was interested application was made to Mr. Justice Barton that counsel should not be allowed. His Honour said, “ I am going to allow counsel in this case, because I think that points will arise as to which the help of counsel will be valuable to me.” Events proved that Mr. Justice Barton was right. I agree with Senator Dobson that if cases are to be put before the Arbitration Court as here proposed, the employers will nearly all be at a disadvantage. An employer may know how to run his business, and to make money, but may know scarcely anything of how to make a speech or conduct a case. Here is an instance. Some years ago I was mayor ofa suburban town in South Australia. A strike occurred in one of the industries there, and I stepped into the breach with a desire to settle the matter amicably. Eventually the parties agreed to arbitrate, and I was allowed to elect the arbitrator. Although the employers were represented by a very keen business man, who held a prominent position in the town, they were at an utter loss as to how to place their case before the arbitrator. They lost it, I think justly ; but I must say that their case was so badly put that they had no chance from the beginning. If a man feels that he is not able to state his case, he ought to have legal assistance.
– The honorable senator would thereby compel the other side to go to expense which they might not be able to afford.
– The other side may feel capable of stating their own case. It is rather hard to prevent a man who realizes that he is not competent to put his case fairly from obtaining legal assistance. He may not even have an agent. If the President of the Court says, “ This is a case in which legal assistance ought to be allowed,” it is fair to permit it; and, therefore, I am prepared to stand by the original Act. If both parties are agreeable to proceed without legal assistance, well and good; but if one party requires help he should not be shut out. I am strongly inclined to support the Minister in the action that heproposes to take in Committee.
– I regret the heated retort thatI made to Senator St. Ledger.
– The honorable senator very seldom offends.
– I felt somewhat heated, because of what appeared to me to be the honorable senator’s absolute ignorance of the question. I say that without any intention of insulting; but the honorable senator’s remarks in connexion with the industrial aspect of the matter were so utterly and so absolutely away from the point that the observation which I made was dragged out of me. I do not think that the seriousness of the case presented by Senator Needham is realized by some honorable senators. We should all like to think that the day of wicked and conniving employers has passed. But my experience shows me that, with the growth of industrial legislation, the employer has become more expert in conniving than he ever was in the past. Whilst a few years ago his method, in dismissing a man for connexion with a trade union, was clumsy, to-day he does the same thing with all the craft of the serpent, so that it is very difficult to reach him. Senator Vardon imagines that the moral effect of legislation of this kind is very slight indeed. The same argument might be used with regard to the Ten Commandments.
-Such legislation would have no effect upon the spitefulor wicked employer.
– I believe that the law is often a terror to evil-doers.
– When there is the fear of punishment behind it.
– Certainly. The probabilities are that we are near the time when employers will need to be ever “‘cuter” than they are at present, to practise their evil designs.
– The same applies to the other side.
– Undoubtedly ; we do not want to have evil-doers on either side. Let the Senate consider, the position of many workmen to-day. There is abundant evidence, particularly in connexion with the Victorian coal miners - and there are scores of other cases which I could cite in relation 1o Australian mining - that employers exert pressure to prevent men from becoming members of unions, and so obtaining an award of the Arbitration Court. We desire to safeguard the individual. As to the question affecting lawyers, I have had a little experience of Arbitration Courts myself, and I quite agree with Senator Needham, and with the provisions that he has inserted in his Bill. Senator Dobson put the whole case in one or two words, when he said that whenever the lawyers come in, complications arise. That is positively correct. The moment the professional lawyer enters into the affairs of industrial life, he builds up all the complications that he can. Whether he is trained for the express purpose of devising complications, or for the purpose of clearing them up, is a matter as to which I have never been able to come to a conclusion. Whenever I have come face to face with lawyers in an Arbitration Court, I have realized that they knew considerably more about law than I do ; but. so far as industrial matters are concerned, I have not yet seen the lawyer in Australia whom I would turn my back upon. The conclusion that I draw is that Industrial and Arbitration Courts are the wrong place for lawyers to be permitted to enter.
– We are not proposing to let them enter.
– We require to shut them out; and then we shall know that they cannot enter. Senator Vardon expresses the opinion that we were, by these provisions, seeking to create advantages for the workers.
– I did not say that.
– The honorable senator said something very like it, for he argued that the employer in most cases would not be able to argue in his own interest. Poor helpless fellow ! I am awfully sorry ! Up to date, the employer has been fairly well able to hold up his own end of the stick before Wages Boards and Arbitration Courts, where lawyers were not permitted to enter. He has done it in New South Wales, as I have myself been a witness. He has done it in New
South Wales and Western Australia. The employer is not so simple as he seems when the question is one of looking after his own share of the profits of industrial opera-‘ tions ; and he can usually make out a fairly good case for himself. What we desire, is that no disadvantage shall be placed upon the worker. He is disadvantaged when we admit the professional fraternity into Industrial Courts. Senator Pearce put the matter so clearly that I think there is no room for further argument. The Arbitration Court was not intended to be ‘a second High Court. It was simply intended to deal with the industrial operations of the Commonwealth where disputes arise, that have extended, or are likely to extend, beyond the limits of any State.
– The question of jurisdiction will nearly always arise, and the President may require assistance.
– On a question of jurisdiction the President of the Court, would himself be an authority.
– Decidedly.. No trouble is likely to arise on that account. We-can hardly assume that a union will take a case to the Conciliation andArbitration Court, and state that the dispute which they wish to have settled hasextended, or is likely to extend, beyond thelim’its of one State, without knowing that the ground on which they stand is substantial. They would not dream of laying, themselves open practically to a nonsuit because they had gone into a Court to which, they had no right to go. Trade unionistsare not quite such fools. They will only take to the Arbitration Court a case whichcalls for a judgment by that Court. My contention is that all that the Court will have to deal with is an industrial matter. An industrial dispute can only arise out of” some industrial conditions. Questions of law will not be matters with which tradeunionists need concern themselves.
– In all probability the President would not admit counsel insuch cases.
– He might not .; but if the fear of counsel ever getting intothe Court is absolutely removed, that will satisfy us.
– I wish to say. in reply, that I am glad that clause 2 of the Bill has met with general approbation. The stormcentre of the measure appears to be theclause which is intended to prevent the appearance of counsel in the Arbitration?.
Court. Senators Millen and Dobson suggested that there would be some danger that the best case would not be submitted to the Court if lawyers were not permitted to be present. In reply to that, I have said that both sides must have men who, from their technical knowledge of the matters in dispute, will be better able to state their case than would any lawyer. I do not think that there is anything unfair in the clause which has been objected to, and I may be allowed to say that in endeavouring to prevent the appearance of lawyers in the Arbitration Court, I have no wish to be disrespectful to the legal profession. I do not think there is muchforce in the argument advanced that since trade unionists are in the habit of addressing meetings every night, and are becoming professional politicians, they are better able to plead their case than are members of employers’ organizations. The employer has at least the same opportunity as the employé, if he chooses to take advantage of it, to practise the art of public speaking, or of debating vexed questions.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clause 1 verbally amended and agreed to.
Clause 2 -
Part II. of the Commonwealth Conciliation and Arbitration Act 1904 is amended by insert, ing therein after section nine the following section : - 9a. - (1.) No employer shall dismiss any em ployee from his employment by reason merely of the fact that the employee is an officer or member of an association that has applied to be registered as an organization.
Penalty : Twenty pounds. (2.) In any proceeding for any contravention of this section, it shall lie upon the employer to show that any employee, proved to have been dismissed whilst an officer or member of an association that has applied to be registered as an organization, was dismissed for some reason other than that mentionedin this section.
Amendments (by Senator Keating) agreed to -
That after the word “ nine,” line 3, the words “ and section ten respectively “ be inserted.
That the word “ section,” line 4, be left out with a view to insert in lieu thereof the word “ sections.”
– I have circulated an amendment on clause 2. In moving the second reading of the Bill, I mentioned that members of unions are sometimes dismissed from their employment because of their connexion with an organization. I said also that it has sometimes happened, and I gave proof of the fact, that in certain cases, although members of unions had not been dismissed, their position has been rendered intolerable, and they have practically been forced to leave their employment. The amendment I have to propose is intended to meet the latter difficulty. I move -
That after the word “ employment,” line 6, the words “or do anything to his detriment as an employee,” be inserted.
That would not extend the protection of the Conciliation and Arbitration Act further thanI think it should be extended, or further than honorable senators have agreed to extend it by passing the second reading of the Bill.
– I do not know when Senator Needham circulated this amendment.
– This afternoon.
– I have no doubt that the principle to which the honorable senator seeks to give effect is correct, but I am not at present prepared to say what would be the exact significance of the insertion of these words. I do not know whether there is any warrant for them in the nature of a precedent in any other Act, or any interpretation of such words which would serve to guide us.
– The honorable senator will notice that they are qualified by the words which follow - “by reason merely of the fact that the employee is an officer or member of an association that has applied to be registered as an organization.”
– I understand that what Senator Needham desires to do is to protect the members of an association engaged in registering an organization, not merely from dismissal by reason of the fact that they are members of the association, but alsofrom acts of oppression which might in some instances entailwhat would appear to be their voluntary retirement from their employer’s service, but what would in effect be their dismissal. I suggest that the honorable senator should postpone further consideration of the matter, in order that we may ascertain whether the words he has suggested are the most suitable, or whether other words might be suggested which would better give effect to his desire.
Progress reported.
Senate adjourned at 9.54 p.m.
Cite as: Australia, Senate, Debates, 8 October 1908, viewed 22 October 2017, <http://historichansard.net/senate/1908/19081008_senate_3_47/>.