3rd Parliament · 4th Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to make a personal explanation. I hold in my hand a proof of a speech which was made by Senator Pearce on Friday last, and in which, referring to a statement made previously, he said -
Some of those who have made that statement appear to lose sight of the fact that we who voted in favour of the amendment, to which they so strongly: object, actually took a share in passing the White Australian legislation before they occupied seats in this Parliament.
– The honorable senator merely did that because it was the policy of the party to which he belonged.
– Is that so? Does not the honorable senator think that it was becauseI believed in it?
I had no idea of charging the honorable senator with having supported anything which he did not believe in. My object was to show that it was the policy of the party to which he belonged, and that he. had appended his name to that policy. I did not believe for a moment that he would append his name to anything which he did not believe in.
– I desire to ask the Vice-President of the Executive Council whether, in view of the widely expressed dissatisfaction in Western Australia, he will take steps to ascertain why applications for old-age pensions have not been, dealt with in that State with greater rapidity ?
– I shall endeavour to ascertain the reason.
– Arising out of the reply, I desire to ask the Minister whether he will ascertain . why old-age pensions which have been allowed by magistrates in South Australia have not yet been paid ?
– I shall do so.
– Will the VicePresident of the Executive Council have the report of the Departmental Committee on the case of Storekeeper Critten, which1 was referred to in debate some time ago, laid upon the table of the Senate, or upon the table of the Library ?
– I shall obtain an answer to my honorable friend’s question.
– I desire to ask the Vice-President of the Executive Council whether it is a fact, as stated in this morning’s’ newspapers, that the Government have received from the Premier of New South Wales an intimation to the effect that he does not intend to’ proceed with the Federal Capital Site question until’ this Parliament has further legislated on the subject, or more definitely defined the site required.
– I am in a position to lay upon the table of the Senate correspondence dealing with the point raised by my honorable friend.
Policy of the Government .
– I rise to ask the Vice-President of the Executive Council whether his attention, has been directed to a speech which was delivered before the Chamber of Manufactures, Melbourne, by Mr. Joshua, and which contained the following statement : -
The chamber should, therefore, support the Fusion Government in its attempt to supersede the Arbitration Court by the establishment of Federal Wages Boards.
I wish to know whether that is a statement of the Government’s policy, whether Mr. Joshua had authority to make such a statement on behalf of the Government, and whether’ it is their intention to so supersede the Arbitration Court?
– My attention has not been drawn to the paragraph in question. No outside individual can have any authority to speak for this or any other Government. I ask my honorable friend to give notice of the rest of his question.
– Arising out of the answer, I should like the Minister to state whether the information on which Mr. Joshua’s statement was based was correct ? Of course, I do not dispute my honorable friend’s remark that no outside person can have authority to speak for the Government, but Mr. Joshua may have had accurate information from them.
– I am not quite certain that I grasped the question of my honorable friend.
– I want to know whether Mr. Joshua’s information was correct?
– All I can say is that the Government’s policy- was set out fully in the document presented to the Senate early in the session.
– I am under the impression that the question of my honorable friend was asked late last week, and, without knowing the facts, I suggest that possibly the reply received by the officer to whom he referred was sent from Melbourne previously to the reading of the Ministerial minute here. As my honorable friend has drawn attention to the matter again, I shall consult my honorable colleague, and, if the question is repeated to-morrow, or next day, I may be in a position to give further information.
– May I assist the Minister’s inquiries by saying that I have a communication from Sydney stating that, on the 9th inst., the papers were returned with the answer I quoted?
– Is the VicePresident of the Executive Council yet in a position to give a reply to the question I asked on the 5th inst., relative to the number and the conditions attaching to the service of the watchmen employed at the General Post Office in Melbourne?
– I have been furnished with a reply to the honorable senator’s question, but as it is somewhat lengthy and contains a number of details, I propose to lay it upon the table of the Library. I hope that that will meet the honorable senator’s requirements.
Case of Private MacDonnell.
– I shall endeavour to ascertain what steps have been taken since the appeal to which the honorable senator refers.
MINISTERS laid upon the table the following papers: -
Census and Statistics Act 1905 -
Trade, Shipping, Oversea Migration, and Finance of the Commonwealth of Australia for the month of May, 1909. - Bulletin No. 29.
Social Statistics as to Education, Hospitals and Charities, and Law and Crime, for the year 1907. - Bulletin No. 1.
Customs Act1901. - Amendment (Provisional) of Regulation 101- - Statutory Rules 1909, No. 94.
Premiers’ Conference. - Correspondence between the Prime Minister and the Premier of New South Wales (dated 22nd June to 26th July, 1909).
Federal Capital - Proposed site at YassCanberra. Further papers respecting the selection of Territory and Proposed Site for the City.
” ALL RED” MAIL ROUTE.
asked the VicePresident of the Executive Council, upon notice-
– The answers to the honorable senator’s questions are as follow : -
Detention of Mail Steamers
asked the Minister of Trade and Customs, upon notice -
– The answers to the honorable senator’s questions axe as follow : -
Appointments to Commissioned Rank
asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the VicePresident of the Executive Council, upon notice -
Whether the whole or any of the expenses which will be incurred by the representatives of The Times and Daily Chronicle in their visit to Australia in connexion with the Congress of Chambers of Commerce, to be shortly held in Sydney, are to be borne by the Commonwealth Government ?
– The answer to the honorable senator’s question is as follows : -
It is understood that the steamer fare and expenses in Australia of the press representatives who are coming out in connexion with the Congress of Chambers of Commerce will be paid by the Associated Chambers of Commerce out of the grant of£1,000 made by Parliament.
asked the Minister of Trade and Customs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Reservation of Land
asked the “VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : - 1 and 2. The Minister for External Affairs informs me that he is prepared to ask the Prime Minister to mention the suggestion in the first paragraph of the honorable senator’s question to the Government of South Australia.
– Arising out of the answer to that question I should like to know if the Vice-President of the Executive Council is aware that the Government of Western Australia have already taken action in this matter, and have_ spontaneously reserved a strip of land without any suggestion from the Federal Government?
The PRESIDENT reported the receipt of a message intimating that the House of Representatives had agreed to the amendments of the Senate in this Bill.
[2.47]. - I move -
That this Bill be now read a second time.
This Bill is designed to assimilate to a very substantial extent Commonwealth legislation with British legislation on the subject of patents. Valuable as such assimilation undoubtedly is, we have a more important object in submitting this measure, and that is to give protection to the Commonwealth against the abuses of patents issued in regard to inventions, which have become so flagrant in connexion with their working elsewhere. The main features of the Bill refer to the compulsory working of patents in certain circumstances, and in connexion with this to the issue of compulsory licences in regard to them, and the making null and void, and otherwise dealing with certain restrictive and repressive conditions which have been inserted in contracts in regard to patented inventions. When I speak of the. leading feature of the Bill as the compulsory working of patents, in circumstances which I shall afterwards explain, I wish honorable senators to understand that this measure proposes no harshness, nor, indeed, will it impose any hardship, but it provides that patentees are to be called upon to carry out what are recognised obligations at common law - to carry out in connexion with their patents .those undertakings which they were expected to carry out as a matter of course so soon as their patents were granted. The underlying principle of this legislation, involved in clauses to which I shall direct attention, is set out in a very succinct manner in a famous passage which I take from the report of a well-known case. This case lays down the legal and economic basis upon which patents were issued. The case referred to is that of Darcy v. Allin, and I ask honorable senators^ to carefully note the principles therein laid down-1-
Where any man, by his own charge and industry, or by his own wit or”- invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before, and that for ‘ the good of the realm, that in such cases the King may grant to him a monopoly patent, for some reasonable time, until the subjects may learn the same, in .consideration of the good that he doth bring by his invention to the Commonwealth, otherwise not.
– Where is the report of that case to be found?
– It is a case which was decided in the, time of Elisabeth, and it is referred to in all the text-books. It lays down in a very succinct way the fundamental principle of patents. Shortly afterwards, in the time of James 1.,’ a special Statute was enacted which declared against monopolies. In it was included a special exemption, which read -
Provided also, and be it declared and enacted, that any declaration before mentioned shall not extend to any letters patents and grants of privileges for the term of fourteen years or under, hereafter to be made of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law, nor mischievous to the State, by raising prices of commodities at home, or hurt of trade, or generally inconvenient : the said fourteen years to be accounted from the date of the first letters patents or grant of such privilege hereafter to be. made, but that the same shall be of such force as they should be if this Act had never been made, and of none other.
That still further emphasizes the principle to which I have already referred. All went well so long as patents were granted only to Britishers. But in the beginning of the nineteenth century patents were granted to Britishers and! foreigners alike, and as a result there gradually grew up an extraordinary abuse. The two main reasons for exempting this particular class of monopoly from the Statute of Monopolies were, first, consideration for the disclosure of the invention, and, secondly, a desire to encourage local trade and industry. If honorable senators will bear these two main reasons in mind they will readily understand the character of the abuse which subsequently became established. The outcome of the grant, indifferently to foreigners and Britishers, of these patents, which were really a protection and privilege granted by His Majesty the King, was that they were ultimately used as a weapon for the encouragement of foreign trade and the discouragement of British trade. The process or method ‘adopted was this : A British patent would be taken put in the usual way, the effect of which would be to hold the market so’ far as the products of that particular invention were concerned. But instead of that patent being worked in the Mother Country, thus establishing British industries, it would be worked in a foreign country - chiefly in Germany or America. Consequently, millions of capital, were invested in industries in other countries, and Ihe products of those industries were placed upon the British market, which the patentee held by reason of the monopoly which Had been granted to him, within the United Kingdom. The patentee in the United’ Kingdom, therefore, by manufacturing in the cheapest foreign market, had the power to nominate the prices which he . would charge for foreign goods thus introduced. He was able to charge the British consumer whatever he thought proper for those products. Thus, . it casme about that the British workman - who had a right to. expect to participate in the employment afforded by those industries - had no work provided for him in connexion with them, and, in many cases, was thus largely deprived of an opportunity to earn a livelihood. He had no chance of acquiring knowledge or experience of these, new inventions,, and when the patent rights expired, markets for their products had already been permanently established in foreign countries. So colossal were the abuses which were thus established that at the time the Amending Patents Bill was submitted to the Imperial Parliament in 1907, it was estimated that the British public had lost something like ^600,000,000 in capital and wages in connexion with patents which had been issued in, but worked outside, the realm. It was also stated that there . were something like 70,000 foreign patents unworked within the United Kingdom. Under such circumstances the Chancellor of the Exchequer, Mr. Lloyd-George, introduced a Bill into the House of Commons in 1907, for the purpose of putting an end to these abuses. The measure was passed in August of that year. It contained practically the provisions which we have copied in the Commonwealth, and which are now embodied in a consolidated measure known as the Patent and Designs Act of 1907. Honorable senators can scarcely credit the colossal results which have followed British legislation on the subject. These can best be appreciated by reference to an article which appeared in the *Electrical W orld of , 1.0th October, 1908. That article appeared only a few months after the expiry of the twelve months of grace provided for in the Act. One section of that measure provides that,, in the future, any patent issued in the United Kingdom shall be worked there within four years of its grant, but in the case of those patents which were granted prior to the Act becoming operative, twelve months’ grace is given within which they are to be worked there. Within a few weeks of the expiration of that twelve months’ grace, an extraordinary result followed. -In the first place foreign manufacturers in leading industries were obliged, in order to retain their trade in the Mother Country, to establish manufactures in the United Kingdom. This article says -
Already fully thirty foreign firms have made or are making arrangements for opening factories -in the British Isles, for producing such goods as aniline dyes, pottery, plant for gas making, rifles, patent foods, electrical contrivances, mercerized cotton, furnaces, sanitary. appliances, typewriters, safety razors, phonograph records, shoes, telephone instruments, and wire cloths.
The article mentions that a well-known authority, Sir Alfred Jones, had reckoned that there had been invested in these industries a sum of about , £25,000,000 for the manufacture of patented articles within the realm -
With regard to the number of persons likely to be affected it is not very easy to be precise. It is estimated that some 70,000 persons foreign to England who are holders of patents in England have been notified of the changes recently made. Of these, not all are directly concerned. Some are engaged in trades which have no competition in England, and are little likely to arouse opposition. Many, again, send goods to England in such small quantities that interference is not probable. In 1906 British patents were issued to -
When a comparison is made between the number of patents issued to “ foreigners” in the United Kingdom, and the number issued in other countries to persons foreign to those countries, the figures are not a little startling. Thus the percentage of patents issued to foreigners in Great Britain, the United States, and Germany, was as follows : -
British subjects (including British-Colonials) received from America 1,622 patents, and from Germany 883. It will thus be seen that the British Government has been in the habit of issuing more patents to American and German inventors than the authorities of either of these countries are of issuing to people domiciled in England. Taking the figures for 1907, it is to be observed that in 1907, out of a total of 16,272 persons holding patents issued in the United Kingdom, 2,792 were resident in the United States of America’, and 2,608 in Germany.
– Was not the British legislation to some extent retaliatory ?
– I am coming to that point. The result of this legislation in the United Kingdom was an outcry in Germany and the United States,, and to some extent in France. The Germans in particular said it was an outrageous piece of legislation, designed for the aggrandisement of British manufacturers. Indeed all sorts of threats were indulged in. This seems the more extraordinary when it is remembered that the provisions of the British Act are practically a reproduction of legislation enacted by other nations. In nearly every other important nation in the world, except the United States, there is such a law. Especially is that the case with Germany, where the eleventh section of the Patents Act distinctly provides that articles referred to must be manufactured in Germany itself. In other countries also, such as Canada, to which we might rightly refer, it is made an actual condition of a patent that itmust be worked’ in the country. It may be recollected that we discussed this subject in connexion with the original Patents Bill, in which was in- cluded a much stronger provision than that to which I am now alluding. The clause was rejected by the Senate. ; Ihope,however, to make clear the distinction between the two proposals. Clause 83 ofvthe Patents Bill of 1903 provided as follows:-
Every patent shall be granted subject to the following conditions : -
That the patentee or some person authorized by him shall within five years after the date thereof commence, and after such commencement continu; ously carry on in Australia the construction, manufacture, or working of the invention patented in such a manner that any person desiring to use it may obtain it or the use of’ it at a reasonable price; and
That the patentee shall not after four years from the date of the patent import the invention or cause it to be imported into Australia.
That provision was regarded by the Senate as somewhat too harsh, although it followed the lines of the Canadian Act, and likewise of similar provisions in the patent laws of various countries. But a distinction must be made between that and the provision contained in this Bill. The present proposal is that where the Commissioner of Patents is satisfied by the complaint of any person that any goods are mainly or exclusively manufactured outside the Commonwealth, then it shall be competent for the Commissioner to accept that as a -prima facie case, whereupon the onus will be thrown on the patentee of showing that the goods arc manufactured to an adequate extent within the Commonwealth. That is not so drastic as are the terms of the original proposal to which I have alluded. Moreover, we are following the lines of British legislation almost literally.
– A good deal of discretion is left to the Commissioner.
– But I will show that there is a power of appeal to the High Court.- There are also certain compulsory working clauses in this Bill, the reasons for which I will shortly explain. Clause 3 makes reference to Papua, and provides for the extension of our patent laws to that Territory. The clause is inserted! at the request of the authorities of Papua. As a matter of fact only two or three patents have been granted there, and the rights of patentees are properly conserved. Clause 4 makes provision for what was an omission from the original Act, namely, for the due recovery of costs awarded by the Commissioner.
– Clause 4 is retrospective; it speaks of orders made after its commencement.
– Yes, but reasonable objection cannot be taken to that,, because, first of all, an order has to be made for the payment of certain costs, and then comes the power of recovery in a court of competent jurisdiction. Clause 9 refers to patents of addition. Honorable senators are, no doubt, aware that from time to time a patentee finds it necessary to alter his patent or make certain improvements in connexion with it. In this clause provision is made for the taking out of what is known as an additional patent in regard to such alterations, modifications, or improvements. This question is dealt with in section 85 of the principal Act, but this clause is an improvement upon that provision. The chief alteration sought to be effected by this clause is that no fee shall be payable for renewal, and it is provided in sub-clause 4 that -
The grant of a patent of addition shall be conclusive evidence that the invention is a proper subject for a patent of addition, and the validity of the patent shall not be questioned on the ground that the invention ought to have been the subject of an independent patent.
Those are the two main alterations contained in this important provision. Clause 10 deals with the restoration of lapsed patents. It is a new provision, establishing simple and inexpensive machinery for securing the restoration of a patent where, through some unintentional failure on the part of the patentee, the prescribed fee has not been paid, or where there ha.s been some neglect on his part. When he applies for a restoration, it will be necessary for him to prove that the act was unintentional, and that no undue delay has occurred. The Commissioner is granted full power to hear the application, and to make such order as he, in the circumstances, may deem necessary. But, in the meantime, a protection is given to those who may have infringed the patent between the date of its lapsing and the date of its restoration, and any aggrieved party has the right to appeal to the High Court. Clause n proposes an important amendment of section 86 of the principal Act. This section provides for. the revocation of patents on petition to the High Court, and sets forth the grounds on which a revocation can be made. Sub- section 9 says -
Where a patent has been revoked on the ground of fraud the Commissioner may, on the application of the actual inventor, made in accordance with the provisions of this Act, with such modifications as may be prescribed, grant to him a patent in lieu of and bearing the date of revocation of the patent so revoked ; but the patent so granted shall cease on the expiration of the term for which the revoked patent was granted.
For that sub-section, clause n substitutes :t provision, following the terms of the English Act. The main feature of it is that the new .patent is to bear the date of the original patent, and not the date of the revocation. The object is, of course, to prevent the patentee’s right being defeated by some persons who, through design, and for other reasons, intervened in the meantime. Clause 12 proposes a new section with regard to the surrender of patents. It provides a simple and inexpensive process for carrying out the surrender of a patent, and gets rid of certain difficulties. It also provides for proper supervision where an infringement has been made in the meantime, or any proceeding is pending. In a case of that kind, the patentee cannot surrender except by leave of the Court, or by consent of the parties to the action or proceeding. Clause 13 proposes a very important alteration of part V. of the principal Act, dealing with the working of patents and compulsory licences. It was contemplated when the provisions of the part were inserted in the English Acts of, I think, 1883 and 1902.. that they would largely insure the compulsory working of patents ; but they have failed considerably in that respect, and mainly because of the cumbrous and expensive character of the proceedings which had to be resorted to for the purpose of obtaining a compulsory licence. Amongst other things it was necessary that the matter should be referred to the Privy Council, and seriousobligations were cast upon the petitioner which should not have been cast upon him. In fact, the position of affairs was reversed, because the burden of proving the necessity of working was. left upon thepetitioner, instead of, as is now the case.- the patentee being required to show that he had absolved himself from working. The Act contains certain other provisions of an oppressive and unreasonable character. In order to bring our law up to and in line with British legislation, subsections 5 and! 6 of section 87 are proposed to be repealed, and a new subsection 6 substituted. According to subsection 1 of section 87 -
Any person interested may after the expiration of two years from the granting of the patent present a petition to the Commissioner alleging that the reasonable requirements of the public with respect to a patented invention have not been satisfied, and praying for the grant of a compulsory licence or, in the alternative, for the revocation of the patent.
Under that provision a difficulty arose as to what were “reasonable requirements,” and it is now proposed to introduce the following new sub-section 6 -
For the purposes of this section the reasonable requirements of the public shall not be deemed to have been satisfied -
if, by reason of the default of the patentee - (i.)to manufacture to an adequate extent, and supply on reasonable terms, the patented article, or any parts thereof which are necessary for its efficient working, or (ii.) to carry on the patented process to an adequate extent, or (iii.) to grant licences on reasonable terms, any existing trade or industry, or the establishment of any new trade or industry, in Australia is unfairly prejudiced, or the demand for the patented article or the article produced by the patented process is not reasonably met ; or
if any trade or industry in Australia is unfairly prejudiced by the conditions attached by the patentee, before or after the commencement of this subsection, to the purchase, hire, or use of the patented article, or to the using or working of the patented process.
These provisions will shift the onus, and make the procedure more simple and direct, following the lines of British legislation. Clause 14 deals with the compulsory working of patents. It has been well said that the keynote of this provision is the forfeiture before the abuse of a monopoly.
– That is following the lines of British legislation, which is becoming a doubtful recommendation to some honorable senators opposite.
– I think that this provision will prove the exception to the rule. This clause may be regarded by many honorable senators as containing the most important set of provisions in the Bill. It proposes the insertion of the following new section - 87A. - (1.) At any time not less than four years after the date of a patent, and not less than one year after the commencement of this section, any person may apply to the Commissioner for the revocation of the patent on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the Commonwealth. (2.) The Commissioner shall consider the application, and if, after inquiry, he is satisfied that the patented article or process is manufactured or carried on exclusively or mainly outside the Commonwealth, then, subject to the provisions of this section, and unless the patentee proves that the article or process is manufactured or carried on to an adequate extent in the Commonwealth, or gives satisfactory reasons why the article or process is not so manufactured or carried on, the Commissioner may make an order revoking the patent either - “(b) at the expiration of such reasonable time as may be specified in the order, unless in the meantime it is shown to his satisfaction that the patented article or process is manufactured or carried on within the Commonwealth to an adequate extent :
That is a simple state of affairs. If a period of four years has expired, then a grace of twelve months is to be given, and within that time the patentee will be called upon to establish his industry within the Commonwealth.
– One year’s grace after the lapse of four years?
– No. A year’s grace from the commencement of the Act is to be given. Any person may apply to the Commissioner, who has to be satisfied that the goods made under the invention are mainly or exclusively made outside the Commonwealth. The proposed new section continues - (3.) If, within the time specified in the order, the patented article or process is not manufactured or carried on within the Commonwealth to an adequate extent, but the patentee gives satisfactory reasons why it is not so manufactured or carried on, the Commissioner may make a further order extending the time so specified for any specified time not exceeding twelve months.
Then there is a provision giving the necessary protection as regards treaties and conventions. Sub-clause 4 says - (4.) Any decision of the Commissioner under this section shall be subject to appeal to the High Court or the Supreme Court, and on any such appeal the Commissioner shall be entitled to appear and be heard either personally or by counsel.
– Is the phrase “ Supreme Court “ defined?
– It is defined in section 4 of the principal Act to mean “ the Supreme Court of the State in which the patent office is situated or a Judge thereof.” Then we come to a provision which deals with circumstances familiar to the Senate. Honorable senators have discussed at length certain arbitrary and restrictive conditions which attach to certain patents of invention, mainly, I think, American inventions in regard to certain machinery. We have had an opportunity of learning how oppressively the rights of patentees can be exercised in connexion with the American boot manufacturing machinery to which I have referred. We found manufacturers bound hand and foot by the terms of the contracts which they were obliged to enter into in’ order to continue to carry on their business. They were compelled to observe certain conditions under their contracts, not only during the term of the patent, but for years beyond the date at which it would expire. The manufacturers in this. case had really to surrender their industrial freedom. Honorable senators will doubtless remember that, amongst the terms insisted on, the manufacturers had to agree that no other machine would be used in their factories. No operations were to take place in regard to goods other than the goods produced by those interested in the patent. I shall say nothing as to the royalties charged ; but in some instances the manufacturers were compelled to purchase goods from the owner of the machines, or from some one nominated by him, at prices in excess of their value. By these means, the astute American inventors have been able to largely control the markets, not only in Australia, but even inthe~ United Kingdom. The object of certain provisions of this Bill is to put an end to this dangerous weapon, which has proved so disastrous, not only to our own industries, but to the industries of other communities.
– Is the honorable senator quite sure that this Bill, if passed, will be constitutional ?
– I do not think there is very much doubt about that.
– Why does not the Minister propose the revocation of the patent for breaches of the law such as he refers to, as under clause 14?
– That might be too drastic in this case. Following on British lines, what we propose to do is to declare that repressive and arbitrary conditions of contracts, as well as every condition of an oppressive character, shall be null and void, and that will practically achieve the same end as the revocation of a patent.
– Practically, will it not fail to achieve the end?
– I think what is proposed is a substantial advance.
– Why not revoke the patent as proposed in connexion with other breaches of the law?
– We must, of course, ascertain, first, what the conditions of a contract are, and) then what are repressive and arbitrary conditions. We set forth here what we regard as arbitrary and oppressive conditions, and in respect of contracts made after the commencement of this Act we declare -
It shall not be lawful, in any contract made after the commencement of this section in relation to the sale or lease of, or licence to use or work, any article or process protected by a patent, to insert a condition, the effect of which would be -
Any conditions to this effect are to be declared null and void.
– If disclosed.
– If they are not disclosed, a man is not bound by them.
– The clause will be of no use.
– I think it will give a certain number of people a very substantial fright.
– The revocation of the patent would be vastly better.
– It might be worth while to consider the honorable senator’s suggestion. It is provided in the Bill that the last sub-section which I have quoted shall not apply if - (i.) the seller, lessor, or licensor proves that, at the time the contract was entered into, the purchaser, lessee, or licensee had the option of purchasing the article or obtaining a lease or licence on reasonable terms, without any such condition ; and (ii.) the contract entitles the purchaser, lessee, or licensee to relieve himself of his liability to observe any such condition on giving the other party three months’ notice in writing, and on payment in compensation for such relief in the case of a purchase of such sum, or in the case of a lease or licence of such rent or royalty for the residue of the term of the contract, as may be fixed by an arbitrator appointed by the Minister.
The clause gees on to provide that -
The clause then specifically refers to contracts entered into before the commencement of the section, containing any condition which would be null and void had they been made after the passing of the Act, and it is provided that they may be determined by either party, on giving three months’ notice in writing to the other party, or by the payment of compensation, to be awarded by an arbitrator appointed by the Minister.
– Does the Minister say that we have the power to deal- with these contracts in operation within a State?
– Yes ; the Constitution provides for special power to legislate in regard to patents. I know what is in my honorable friend’s mind.
– There are no limitations in this . case ; the power is taken over entirely.
– Exactly j we take over the whole power in connexion with patents.
– The Minister is aware of what was said in the High Court, that though we may have the power to deal with marriages, we cannot inferentially deal with industrial questions under that power.
– Perhaps one of the best evidences of our power to deal with this matter is its enactment in British legislation.
– I hope that the Minister is right.
– I do not think there can be any doubt about the matter, because our powers in this respect under the Constitution are very wide. The other clauses of the Bill are more or less of a formal character. There is one which settles the law as regards devolution of patents, and the last clause provides for improperly describing any office as a patent office, and prescribes a penalty for so doing. I have referred to the main features of the Bill, and I think, as I claimed for it in my opening remarks, it will be found to be a substantial advance towards bringing Commonwealth legislation into line with British legislation; also that it will result in a very substantial improvement on existing conditions, and provide a remedy for evils which have been notorious throughout the Commonwealth, as well as in other parts of the British Dominions.
Debate (on motionby Senator Pearce) adjourned. .
[3.34]- - I move -
That this Bill be now read a second time.
Honorable senators will remember that section 69 of the Constitution provides that -
On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following Departments of the Public Service in each State shall become transferred to the Commonwealth : -
Posts, telegraphs and telephones;
Naval and military defence;
Lighthouses, lightships, beacons and buoys;
In order to take over the post-offices, telegraphs, and telephones, and naval and military defence, we adopted the systern of proclamation mentioned in the section, but in regard to quarantine, for reasons which were fully stated, we adopted, as is proposed in this case, the plan of introducing legislation to take over the services referred to. This matter of the taking over by the Federal authority of the lighthouses of the Commonwealth has been the subject of much consideration, andof resolutions passed by Conferences of the. Premiers in 1906, 1907, and 1908. The request made to the Federal Government is that coastal lighthouses should be taken over. It has been urged, amongst other reasons, why this should be done, that although in several of the States certain lighthouses have been urgently needed, the State Governments have not cared! to proceed with their construction, pending the taking over of lighthouses by the Commonwealth.
– When they were in need of post-offices, they did not hesitate to proceed.
– That is so, but we are dealing here with a somewhat more difficult subject. Senator Clemons will see that recognised Postal Departments were established in all the States. It can hardly be said that they have recognised lighthouses in the same way. The lighthouses have been managed by certain sub-departments, and there are little difficulties in connexion with them which we are trying to avoid by the legislationnow proposed. The request has been made that we should take over the coastal lighthouses. That is to say, that for the present we should not interfere with harbor lights. We have some 8,000 or 9,000 miles of coast line, and it is proposed that we should take over about 120 lighthouses thereon. A tentative arrangement has been entered intowith the States Governments as to the lighthouses to be taken over. Dr. Wollaston was sent some time ago to the several States to discuss the matter with the States Governments. He came to a tentative arrangement with them as to the lighthouses which it is desirable that the Commonwealth should take over. The upkeep of these lighthouses involves an expenditure of something like £60,000 a year. It is proposed that the staffs employed in connexion with them shall lie taken over with the lighthouses. As I have said, the harbor lights, which are difficult to define, and which are established in many instances at some distance from the entrances to estuaries and rivers, are to be left, for the present, in the hands of the State Governments. Of course, it will be competent at any time to take over the control of those lights.
– What is now proposed involves dual control, and the employment of two separate staffs.
– Is it proposed to take over lightships?
– No; lightships are harbor lights.
– By no means. There are lightships established in Torres Strait.
– Speaking generally, it is not proposed to take over harbor lights. I do not know whether the lightships to which Senator Chataway refers are regarded as coastal lights, but if they are, they will be brought under this Bill. I shall be able on reference to the list, of lighthouses to be taken over to say whether the lightships to which the honorable senator refers are included in the list. The Bill provides for entering into a definite agreement in regard to these. And in that agreement a reference to the particular lighthouses we shall take over will ibe inserted.
– It will be unsatisfactory unless we take over all of them.
– If the honorable senator was aware of the difficulties and friction involved in attempting to do what he proposes, he would find thai we are acting wisely, in adopting, in this case, the course we adopted in connexion with the taking over of quarantine.
– Is there any definite guide to distinguish harbor lights from coast lights?
– Yes; I have said that a tentative arrangement has been arrived at with the State Governments with respect to the lighthouses it is intended that the Commonwealth shall take over. Provision is made for entering into agreements having reference to those special lighthouses. Altogether we propose taking over120 lighthouses, the upkeep of which will cost approximately £60,000 annually. We propose also to take over the staffs associated with the working of those lighthouses.
– With the approval of the States?
– By arrangement with and at the request of the States.
– Are the Government acting directly with the States or through the local bodies?
– Directly with the States. A great number of requests have been made from time to time for the erection of additional lighthouses along our coist. In Queensland there are four lights urgently required, in Western Australia there are a similar number, in Tasmania there is one, in South Australia one, and in Victoria one. Altogether it is recognised that there are twelve urgently required lights, the construction of which should be proceeded with with the least possible delay.
– Are the four lighthouses in Western Australia to which the Minister of Trade and Customs refers those which are under construction at the present time?
– I cannot say, but I shall be glad to get the information for my honorable friend. 1 know that a little time ago some of the States informed us that certain lighthouses were urgently required. In reply we said, in effect, “ Proceed with the construction of the lights which you say are of an urgent character, and we shall endeavour to take them over on a per capita basis instead of burdening you with their full cost.” To adopt the latter course would be most unreasonable.
– The Government propose to treat these lighthouses as transferred properties?
– No, because in that case the expenditure on them would be debited to the particular States concerned. The cost of new lighthouses will be assessed upon a per capita basis.
– What will be the cost of these twelve new lights?
– They will cost about £15,000 each. The upkeep of the lights taken over will, as I have said, involve an expenditure of about £60,000 a year, and, of course, the States will be relieved of that obligation.
– Then the States will cease to collect the light dues ?
– Undoubtedly, to that extent, when the Commonwealth imposes rates.
– The Minister of Trade and Customs did not mention that.
– It is very difficult to mention everything at once.
– Do the Government expect to make a profit on the transfer of lighthouses to the Commonwealth ?
– We do not seek to make a profit on .their transfer. In this Bill we take power to levy light dues by regulation, and those dues are intended to cover the cost of the maintenance of lighthouses and interest, and the provision of a sinking fund. Of course, the States will be correspondingly relieved, and obviously it will be their duty to remit the amount of taxation in light dues. They will, however, retain the power to levy necessary dues so far as harbor lights are concerned, and also in regard to the lighting of channels, buildings, sheds, wharfs, &c. But the design of this Bill is that we shall have power to levy by way of tonnage or light dues the least possible amount so as not to unduly burden shipping - in short, that we shall levy only such charges as are necessary to cover the expenses which I have already enumerated. I think that the measure will commend itself to honorable senators. It is proposed that these lighthouses shall be worked by their present staffs assisted by the Customs staff wherever that is possible. It is contemplated that the passing of the Bill will only involve the appointment of a superintending engineer and two or three clerks so far as the central administration is concerned.
– After this Department has been federalized is it intended to charge a general fee regardless of the facilities which are offered by various ports?
– The lighting of ports themselves will still be left to the States. Commonwealth light dues will be paid only by ships passing or deriving benefit from any lighthouse or marine mark on the coast of Australia in accordance with regulations to be framed, and to .the extent only of the actual benefit derived.
– Is it intended to levy a greater or less charge upon oversea ships than upon coastal vessels?
– That will be a matter of regulation. But such a thing is not contemplated at the present time.
Debate (on motion by Senator Guthrie) adjourned.
[3.48]. - By section 36 of the Audit Act 1901 it is provided that -
Provided that any pay earned in any financial year by members of the Militia Forces may be paid after the close of that year and charged to the appropriation made for the service of that year.
It has been the practice of the Treasury Department ever since the time of Sir George Turner to remit to the Old Country from time to time moneys connected with appropriations which have been made by Parliament Let us suppose, for example, that £50,000 had been duly appropriated for the purchase of guns. The practice of the Treasury has been either before or after the placing of the order to remit certain sums of money to London for the purpose of meeting that expenditure. That practice was established for the reason that as we had to return surplus balances to the States monthly, it was necessary- in order to avoid heavy expenditure coming suddenly upon the Commonwealth - that provision should be made in the manner to which I have referred. Consequently when an order was actually given in accordance with an appropriation or when it was contemplated, remittances were made from time to time to meet our obligations. At the end of the year it thus happened that considerable sums of money remained unexpended, although they had been duly remitted. The Auditor-General has taken exception to this practice of the Treasury Department; hence the necessity for this amending legislation. The existing practice is necessary -to enable us to . meet our obligations in the Old Country; and I am sure therefore that the Bill will commend itself to honorable senators. I move -
That this Bill be now read a second time.
– As this is merely a machinery measure which has been rendered necessary owing to the practice hitherto adopted by the Treasury having been challenged, there is no reason why it should not be passed through Committee immediately.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Clause 2 -
Section thirty-six of the Audit Act 1901 is amended by adding to sub-section (1) thereof, after the proviso to that sub-section, the following additional proviso :; - “ Provided also that where -
any obligation involving expenditure has been incurred outside the Commonwealth, and
money to an amount not exceeding the appropriation covering the expenditure has, before the close of the. financial year for the service of which the appropriation is made, been transmitted for the purpose of making payments in connexion therewith, the money so transmitted shall be and shall be deemed to have been available for making those payments notwithstanding that the financial year closed before the payments were completed ; and for that purpose the appropriation, whether the financial year closed before or after the coming into operation of this proviso, shall be deemed not to have lapsed.”
Senator Sir ROBERT BEST (VictoriaMinister of Trade and Customs) [3.54]. - I move -
That after the word “ incurred,” paragraph (a) the words “ or is intended to be incurred “ be inserted.
– In doing that is the Minister following the terms of the Act?
– The whole procedure is governed by the appropriation.
– But the Minister’s proposal will make the scope of tha Act much wider than it is.
– Yes, but that cannot be -avoided.
Amendment agreed to.
Clause, as amended, agreed to.
Title agreed to.
Bill reported with an amendment.
Bill received from House of Representatives, and (on motion by Senator Millen) read a first time.
In Committee (Consideration resumed from 2 1 st July, vide page 1393) :
Clause 2 -
The following part and sections are inserted after Part 1 of the Principal Act…… 65 (1) any person who-
wilfully obstructs any officer in the execution of any power under this Part of this Act, or
tampers with any recording machine ; or
without authority breaks any seal placed by an officer on any part of a recording machine or on any lock used to fasten any part thereof ; or
without authority interferes with the mechanism of any recording machine ; shall be liable on summary, conviction to a penalty not exceeding Fifty pounds.
– When ‘we were dealing with proposed new section 65 (j) on the last occasion, the question was raised as to whether the penalty of £50 would be sufficient to cover all the offences against which this clause was designed: The suggestion was thrown out that the punishment of imprisonment would not be unduly severe for an aggravated offence. Progress was reported in order that I’ might have an opportunity of considering the point, and I now beg to move -
That the following words be added : - “ or to imprisonment for a period not exceeeding six months.”
– I dc not like the idea of subjecting a man to imprisonment for six months for such an offence as might be committed under paragraph (a) of proposed new section 65 (j). It is easy to imagine that an officious officer might make out that he had been subjected to obstruction. An officer might enter an office where one of the machines authorized under this Bill was in use, for the purpose of examining it. An employe might say, “I am busy just now ; I have some invoices which I wish to stamp; you cannot look at the machine until I have finished.” Thereupon the officer might say, “I must look at the machine now.” If the employe refused to permit the officer to do so, he might say that he had been wilfully obstructed in the execution of his duty, and the employe might be imprisoned for six months. I quite agree that the penalty for tampering with a machine ought to be severe.
-Surely the magistrate would judge whether there had been serious obstruction?
– But it is so easy for a man who wishes to magnify his office to make a trumpery allegation of obstruction. I do not wish to subject men to the risk of imprisonment at the caprice of some magistrate on the complaint of an officious officer for a trifling offence. I do not think that the punishment of imprisonment should apply in the case of obstruction.
– I am sorry that the Vice-President of the Executive Council has given way to a request to add the penalty of imprisonment to the monetary penalty proposed by the Bill. . I can conceive of an offence being technically committed for which the offender certainly would not deserve the punishment of imprisonment, but which, on the other hand, might be deserving of a small fine.
– Does the honorable senator think that the punishment of imprisonment would be inflicted for a trumpery offence?
– It might be, because the word “tampers,” used in this clause, has not a precise connotation. A person might, in a spirit of scientific curiosity, break into a machine. He might even through mischief break the seal in order to look into the working of the mechanism.
– Such a case might be met by a fine of five shillings.
– But it would all depend on the magistrate. He might be influenced, I do not say by the breakfast that he had eaten in the morning, but by his mood at the moment. The clause uses the words -
Who without authority interferes with the mechanism of any recording machine.
Even though there might be an intentional interference with the mechanism, it might not justify a sentence of imprisonment. I consider that the penalty of ^50 is quite sufficient, and that it is dangerous to give to the magistrate the power of imprisoning any subject for an offence which might be of a very mild character. -Indeed, it is not necessary that we should attach a specific penalty for a specific offence under this Bill.
– The honorable senator means, I suppose, that the ordinary law of a State would be sufficient?
– A man might be charged with doing something wrong under this Bill without it being necessary to specify a particular offence.
.- The machines referred to would be used only to a limited extent. There might be a thousand or more of them in the whole Commonwealth. They would be used only, in very large offices, where it may be presumed that none but responsible persons would be in charge of them. If a responsible person in charge of such a machine is guilty of any offence set out in the clause, the penalty prescribed would not be too severe. On the other hand, if a merely technical offence is committed the magistrate would have power to inflict a fine of five shillings, of one shilling, or even of one penny. We are trying to safeguard the Commonwealth against being defrauded. If these machines were tampered with the Commonwealth could be defrauded of enormous sums, and the effect might be to drive the machines out of use altogether. Senator Clemons has suggested that the ordinary criminal law of a State would be sufficient to provide against a serious offence under the Bill. But offences might be committed that’ would not be offences under a State law. Furthermore, under the criminal law of a State intention would Have to be proved, and that is usually extremely difficult. These machines are to be the property of, and under the supervision of, the Commonwealth ; and it is essential, if their use is to be safeguarded, that no one, except a Commonwealth officer, should be allowed under any pretence to interfere with them. Interference with such a machine is not, moreover, an offence under the law of any State. It is, therefore, necessary that such an act should be made an offence.
– There is a fear that injustice or hardship might occur from prescribing the alternative punishment of imprisonment. But if the sentence inflicted by a magistrate were too severe, there would always be a power of appeal to the Executive, which, if the punishment of imprisonment had been wrongly inflicted, might remit the sentence. It is a common thing for the Executive to reverse the decisions of magistrates.
– There seems to be a great distrust of the magistrate.
– No, he is allowed to fine up to £50.
– If the amendment is carried, the. magistrate can imprison an offender for any period up to six months. Honorable senators ought to always remember that these extreme penalties would only be imposed in cases where a flagrant attempt to defraud the revenue had been successfully made, and the offence had been proved.
– The offender could be punished much more effectively without this provision.
– I cannot deal with legal subtleties. It seems to me to be a very fair maximum punishment for a serious offence.
– But take the case of a quarrel between an employe and the inspector.
– Does the honorable senator think that in such a case the full penalty would be imposed? The magistrate would exercise ordinary discretion in a case of that kind.
– We have no guarantee of that.
– We have a right to expect that the magistrates will possess some common sense. The clause, with the amendment proposed by Senator Millen, will give them ample latitude. They can impose a fine of one penny, or one shilling, or a pound, or fifty pounds, or sentence the offender to imprisonment for a day or six months.
– Are imprisonment and fine exactly on the same plane?
– No j but if an ordinary man steals a pound he is very rarely let off with a fine. It is only in extreme cases that a fine is imposed. Usually the offender is sentenced to imprisonment. It appears to me that the fact which is operating in the minds of honorable senators is that these machines will be used only by commercial firms of high standing. They seem to think that it would be a terrible thing to expose such firms to a term of imprisonment for six months, or a fine of ,£50.
– It has remained for the honorable senator fo invent that reason.
– That is, I be.1if,,e, the reason which is lying at the back of the minds of honorable senators.
– -The honorable senator is wrong, so far as I am concerned.
– I may be wrong.
– The honorable senator is not only wrong, but he has made a nasty insinuation.
– I am very glad to hear honorable senators disavow an intention of that kind. We all know flint an ordinary individual will not use the machines. If a large commercial firm steals money from a machine in the way indicated in the Bill, that firm, or whoever is responsible for the larceny, should be punished in exactly the same wai’ as a common thief.
– The firm would never use the machine.
– A theft is a theft whether it is committed by the poorest manin the community or by the richest one, and’ it ought to be punished in exactly the samefashion. So far as we can, we ought to take steps to insure that every one shall heequal before the law. If the user of a- machine deliberately attempts to cheat, and succeeds in cheating, the Commonwealth, then the infliction of a fine is not a proper punishment for such an offence.
– I agree with that.
– Then why does the honorable senator object?
– I object to paragraph a.
– That deals with the case of an employe” who refuses to allow an inspector to examine the machine with a view to seeing if everything is fair and square.
– I object to a man who happens to quarrel in some way with the inspector being subjected to the possibility of being sent to prison.
– Very likely the employe” would not be sent to prison unless he assaulted the inspector in a very aggravated fashion. I have not heard a single, argument to induce me to vote against the amendment. On the motion for the second reading, I said that the Department was exposing itself to the possibility of loss of revenue by allowing the machines to be used. Holding that view, I think that the Department ought to be safeguarded in every possible fashion.
– In my opinion, the clause is not a bit too severe. Senator Vardon objects to the punishment which is provided for a person who obstructs an officer. It may. happen that, at a particular moment, inspection is necessary to detect fraudulent tampering with the machine, but if an employe is encouraged to set up any excuse for delay, that may enable him to cover up an attempt to defraud. Senator Vardon assumes, and I admit that sometimes there is justification for assuming, that an officer may be unduly officious or offensive in his manner, and there mav be sufficient provocation for a person to get angry with him, and say, “ Go to “ ; but we have to remember that this Bill provides a convenience. Persons will not be compelled to use the machine, but- if they do, they take the risk involved for their own convenience. In my opinion, the . contingencies which Senator Vardon suggested are not likely to happen. We ought to surround’ the use of the machine with’ every possible safeguard. Its use may have possibilities of which we know nothing at present. For instance, an employe may remove some screws, or take the machine to pieces out of scientific curiosity. He may have tampered with the machine, and prevented it from registering properly. The inspector may have a suspicion that it has been tampered with, and the only way in which he can find out the truth is by entering the premises and seeing the machine at work. If an employe could claim that he had thousands of invoices to stamp, and therefore refused to allow the officer to see the machine until that work had been done, it might enable a fraud to be covered up. An inspector ought to (be empowered at any moment, no matter how many invoices may have to be stamped, to request the employe to leave the machine, and allow him to look at it. No one should have the right to say, for any reason, that the officer shall not make an inspection at a particular moment. Imprisonment will not be inflicted upon a man without sufficient reason. If there is a case of petty larceny, the offender can be proceeded against under the existing law, but there are some things which could be done to a machine of that character with a view to fraud, but which, until fraud was proven, would not be an offence against the ordinary, law.
– I desire to make it quite clear to Senator Clemons that my amendment has not been submitted solely as the result of an opinion expressed here. Since the Bill was first brought before the Senate, I have given to this clause as much thought as I could. Minor offences, such as those to which Senator Vardon referred, might be committed under this clause, and the penalty proposed would meet them. On the other hand, it is admitted that offences might be committed under the clause for which a penalty of six months’ imprisonment would not be too severe. The penalty provided for is so elastic as to range from a fine of one penny to six months’ imprisonment. I was surprised to hear Senator Clemons urging that the penalty might in many cases be too severe, and interjecting, while Senator Stewart was speaking, that the offence might be dealt with under a State law, under which thepenalty might be very much more severe.
– Tt would be proportionate to the offence.
– The object of the amendment is to define a penalty which, at the discretion of the magistrate, will be proportionate to the offence.
– But it misses with both barrels.
SenatorMILLEN. - That depends on the exercise of his discretion by the magistrate. The honorable senator’s objection is equally applicable to every power of discretion given to the magistracy. I scarcely know of any offence under our laws in connexion with which discretion is not left to a magistrate in imposing a penalty.
– There are hundreds of offences for which there is no alternative of imprisonment.
– And there are hundreds in which that alternative is provided for. I hardly know of a case in which the magistrate is not allowed the exercise of discretion as to the amount of money penalty, or the term of a penalty of imprisonment.
– There are many offences for which imprisonment is not provided. I do not quarrel with the proposed penalty of a fine of £50, but with the provision for imprisonment.
– Serious offences might be committed under the clause, for which six months’ imprisonment would not be too severe a penalty.
– It might not be sufficiently severe.
– The honorable senator is now objecting that the term of imprisonment provided for is not long enough. I do not know that I would strenuously oppose an amendment to make it twelve months instead of six months. If a man is convicted of having tampered with a machine,with the deliberate intention of committing fraud, six months’ imprisonment might be an insufficient punishment for his offence. It was thought desirable to place some limit on the action of magistrates, and that is why the amendment was proposed. A longer term of imprisonment would involve proceedings on indictment. There might be many offences committed under the clause in connexion with which it would be unnecessary to proceed by the more cumbrous method of indictment, and in such cases summary proceedings would have muchto commend them. I have not heard a single argument against the amendment but that used by Senator Clemons, which would be equally applicable to any provision in our law under which discretion is left to a magistrate.
Question - That the words proposed to be added be so added - put. The Committee divided.
Majority … …2
Question so resolved in the affirmative.
Amendment agreed to.
Proposed new section 65 (j) as amended, agreed to.
Proposed new section 65 (k) agreed to.
Clause 2, as amended, agreed to.
Title agreed to.
Question - That the Chairman report the Bill with an amendment - put.
– The question is: That I report the Bill with an amendment.
– Might I ask whether before you put that question you put any other question since the result of the division was declared.
– I have put the proposed new section 65 (j) as amended, and the proposed new section 65 (k).
– With all due respect, sir, I submit that it would be desirable to allow honorable senators who have taken part in a division to resume their seats before new questions are put to the Committee, I believe that on the present occasion you have put questions to which possibly no member of the Committee would have objected had he heard them. But if the questions put had involved some matter in connexion with which there was some strong feeling in the Committee, it would have been quite impossible for any honorable senator to know that they were being put.
– I quite admit that there is something in what the honorable senator has said. I paused after declaring the result of the division, and I spoke loudly when putting the questions to the Committee, but perhaps it would have been better had I waited a little longer.
Question resolved in the affirmative.
Bill reported with an amendment.
In Committee (Consideration resumed from 29th July, vide page 1758) :
Clauses 1 and 2 agreed to.
Clause 3 -
In this Act unless the contrary intention appears - “ Seaman “ includes master, officer, apprentice, or other person employed or engaged in any capacity on board a ship in connexion with the navigation or working of the ship.
– I direct the attention of the Committee to the definition of “seaman.” I brought under the notice of the Minister the fact that there might be people on the ship who would be beyond the jurisdiction of their State, and so would have no chance of obtaining compensation under a State law, and who: would also be unable to obtain compensation under this Bill. I take the case of men engaged in salvage work. They would be outside the jurisdiction of their own State. Not very long ago, the Elingamite foundered somewhere off the New Zealand coast. There was a quantity of gold on board, and a corps was subsequently engaged in Sydney to salvage the vessel. But under this definition, only those persons who are engaged in the actual working of a ship - only those who perform duties connected with its navigation - will come under the operation of the Bill. Divers and members of a salvage corps will not.
– Oh, yes.
– No. They are not engaged in the working of the vessel.
– If the honorable senator will read clause 4, he will see that the Bill will apply to the persons whom he has mentioned.
– Take the case of an ordinary diver following his occupation in New South Wales. If he should be injured in the course of his employment while within the jurisdiction of that State, he would be entitled to compensation. But, on the other hand, the members of a salvage corps who proceed to another State, not as members of the crew of the vessel on board of which they are, but as passengers, do not occupy a similar position. Should they be injured in the course of their employment, they would not be entitled to compensation.
– But the divers would be engaged in working the salvaged ship.
– Does the honorable senator want this Bill to apply to passengers ?
– No. But in the case which I have cited, the members of a salvage corps would be passengers only for a particular purpose.They would be on their way to another State for the purpose of salvaging a vessel. They would not be seamen, although they might be employed by the same firm as the crew of the vessel which carried them to their destination.
– This Bill is not limited to Inter-State traffic.
– But it will not apply to the cases I have mentioned. I do not suggest that it will not apply to a ship’s crew, or to men engaged in the working of a vessel.
– And a salvage corps would-be engaged in the working of a vessel.
– I do not think so.
. -Senator Turley has raised a very interesting point. I presume he means that if ship A has been wrecked somewhere, and ship B has been sent to salvage her, the latter will be manned by ordinary seamen, and will also carry a certain number of persons who will afterwards be employed in salvaging operations. Senator Turley contends that should any of the latter be injured in the course of their employment, they will have no claim to compensation. My answer is that they will come under the clause which refers to persons connected with the working of a ship. If ten or twenty men are engaged in salvaging a ship, obviously they are there for the purpose of working that ship.- It seems to me that the clause covers the whole position which Senator Turley has put.
– I am rather inclined to the view entertained by Senator Turley, because I find that in the draftsmanship of this measure there has been a departure from the Imperial Act in more instances than one. Let us suppose that a ship meets with an accident, as the result of which a large number of lumpers are taken from the wharfs. If they are injured in the course of their employment, so long as they are within the jurisdiction of the State, they are entitled to compensation ; but if, whilst engaged in a most dangerous avocation beyond the territorial limit, they have the misfortune to be injured, they can claim no compensation. Under the Imperial Act, they would not be regarded as seamen, because all seamen must be on the ship’s articles. These men would not be upon those articles. Their cases are not covered either by the Bill or by any State Act with which I am acquainted. I think that we ought to make provision for them in a definite way. I do not think the words “ or other person” are sufficiently definite to cover the case I have mentioned.
– The word “ articles “ is not used in connexion with the definition of seamen in this Bill.
– But the definition section in the Imperial Act of 1906 lays it down that ship, vessel, seaman, and port have the same meanings as are given to those words in the Merchant Shipping Act of 1894.
– A man may under this definition be a seaman without having signed articles.
– But he would not be recognised as a member of the ship’s crew. Senator Clemons knows that no ship is allowed to proceed to sea without every person on board being accounted for. They can be accounted for only in two ways, either by the ship’s articles, or by. the passenger list.
– The persons engaged on the Commonwealth trawler have not signed articles, and they are not passengers.
– The trawler being a Government vessel is exempt from ail such provisions.. I know, however, that persons engaged on other than Government trawlers, from the master to “ Jimmy Ducks “ are required to sign articles. I am inclined to believe that this definition is not sufficiently broad to include persons who have been engaged in a State to undertake salvaging operations outside the 3-mile territorial limit.
– - The interpretation of “ seaman “ contained in the Navigation Bill is -
Every person employed or engaged in any capacity on board ship, except masters, pilots, or apprentices and persons temporarily employed on any ship in port. .
If that Bill became law, persons engaged to undertake salvage work would not be regarded as part of the ship’s company. In the same way lumpers who are temporarily employed on board would not be recognised as seamen.
– If the definition ended at the first word “ ship “ the difficulty would be overcome.
– If persons are engaged on board a ship they should come within the scope of this Bill. Its object is to recognise by legislation the right of men who are injured in the course of their employment when they are outside the jurisdiction of their State to claim compensation for their injuries.
– Would the honorable senator bring passengers under that definition ?
– No. It seems to me that to overcome the difficulty with which we are confronted we need an amplification of the words “ or other person.” Otherwise the concluding words of the paragraph should be omitted.
– If divers are included in the same category as seamen under this Bill it seems to me that we shall create very serious difficulties, because, whereas the seamen are regularly employed, divers may be engaged only half-a-dozen times a year. The latter would be employed on special work, and a difficulty will be created if we apply principles which rightly attach to one class of work to another.
– If a man is working in a harbor, where a Workmen’s Compensation Act applies, he will get compensation.
– But the same compensation as would apply to seamen under this Bill would not apply to a man temporarily employed on a ship. Divers, for instance, are engaged for work in mines and in wells as well as at sea.
– This measure only applies to marine divers.
– I think the difficulty can be got over bv leaving out all the words after “ ship “ in this definition. To meet the objection of Senator Clemons that the servant of a passenger might be affected, we might insert after the word “ person “ the words “ not being a passenger.” The definition would then read - “ Seaman “ includes master, officer, apprentice, or other person not being a passenger employed or engaged in any capacity on board a ship.
All the words after “ ship “ are entirely unnecessary.
– I have to remind the Committee that there are constitutional limitations to be considered in dealing with this Bill. At the second-reading stage I expressed my desire to make it as wide in its operation as we could. I repeat that desire now. . But it does seem necessary to remind honorable senators that the constitutional limitations exist; and, however desirous we may be of making the Bill apply to other workmen, we have to bear in mind that we can exercise no Federal jurisdiction over other workmen. Senator Story has indorsed a suggestion to strike out the words referring to the working of a ship. If we did that the effect would be to bring under the Bill all wharf labourers and others who might temporarily be engaged upon a vessel. But we have no jurisdiction over them. If we were to carry out that suggestion we should make this not a Seamen’s Compensation Bill, but a Workmen’s Compensation Bill. We cannot do that, so far as I understand the Constitution, and so far as our legal advisers inform me.
– Can we not make this Bill apply to other workmen engaged upon a ship outside the territorial limits?
– I wish to make lt clear that striking out the words to which Senator Story objects would not have the effect of making this Bill apply to all workmen engaged on a vessel, no matter how, when, and where. Let me indicate what are the constitutional limits which’ surround us. It will be seen, in dealing with the next clause, that this Bill is net drafted under the trade and commerce section of the Constitution, because if so, we should be limited to those seamen who pass from one State to another, and who are engaged in the Inter-State trade. What those responsible for drafting the Bill have done is to seek to proceed under the enlarged powers given by the navigation laws. To do that it is necessary that we should confine this Bill to those who are ‘engaged in navigation, and who may truly be called seamen. However desirable it may be to bring in other classes, we have to ask ourselves the question whether they can be brought in as seamen and covered by the power implied in the navigation laws. The full effect of the amendment which Senator Turley suggests would be to make certain persons on a ship passengers’ from the. port to the scene of their occupation. But so far as I understand the difficulty, those men would not be “under Federal jurisdiction. I am willing and anxious to make this Bill as wide as possible, but I ask my honorable friends opposite not to press an amendment of this definition at the present time. I give the promise to the Committee that I will look into this matter and see to what extent we can extend the operation of the Bill. I have not yet been able to see a way in which to do it. If honorable senators will accept the assurance of my anxiety to meet their wishes as far as it is possible to do so, leaving the clause as it stands for the present, I shall willingly consider any suggestion which may be made to widen the scope of the Bill, and shall also consult those constitutional authorities, to whom I have referred.
– Apart from the class of persons whom we are trying to bring under the operation of this measure, we have also to consider the scene of their work. Take the case of vessels trading to the South Sea Islands. They are entirely outside State jurisdiction.
– If persons employed on board are on the ship’s articles they are covered by this Bill.
– I understood from what the Minister said that the measure referred only to seamen, and that the moment they stepped off a vessel they would be outside Federal jurisdiction.
– No, I was dealing with men who are not on a ship’s articles. If they are on the articles any work which they do entitles them to the benefits of this measure.
– If we have an assurance to that effect, I am satisfied.
– The honorable senator will be satisfied if he looks at clause 6.
– A suggestion has been made which might be useful to the Vice-President of the Executive Council. It is that at the end of the definition of “ seaman “ the words “or otherwise” should be inserted. If men were taken outside the 3-mile limit to salve a cargo, they would not be engaged in working the ship.
– I wish to put the point to the VicePresident of the Executive Council that if an accident occurred to a seaman outside the territorial jurisdiction of the Common,wealth, he would not, under this Bill, be entitled to compensation. We have power under this Constitution to deal with seamen who are on a ship’s articles. But we cannot extend the benefits of our legislation to any person who is not on the ship’s articles, although he may be employed otherwise on the ship. At page 242 of his book on Employers’ Liability and Workmen’s Compensation, Ruegg says, concerning the British Act, that -
The broad effect of this definition is that any person engaged in any capacity on a British ship or vessel used in navigation is within the
The point raised by Senator Turley is that an accident may occur while a ship is not engaged in navigation. The definition of the Imperial Act would cover every man on a ship, no matter in what capacity he was engaged. Ruegg uses the phrase “subject to his being a workman.” It is well known that the crew of a salving vessel is very small. ‘Certain working men are engaged. on shore, and put on a salving vessel absolutely as lumpers or stevedores. As soon as the vessel, which is generally small, has managed to salve a cargo, it is sent off with a number of the lumpers to the nearest place at which to land the goods. Suppose that an accident happens to a man who is not a member of the crew of the vessel ; his case will not be covered by the Bill in its present form. The whole object of this legislation is to provide a remedy for men who may be injured at sea. I hope that the Minister will see that all men who are engaged on salving work are, covered. Of course, such men are not salvors in the strict sense of that word, but are men employed by the salvors, and work for daily, wages. I regret that this measure, unlike the English Act, does not include pilots in its definition clause. I do not know whether the Minister holds the view that they are covered by the words ‘ ‘ other person.” In Australia we find different kinds of pilots. In Melbourne a pilot is compulsorily engaged by a ship and receives the fee. But in other ports of Australia the pilot is a public servant. A Torres Straits pilot is simply a licensed man who takes a ship for a long distance, and at an extremely small rate. He Virtually becomes a member of the ship’s crew. He gives advice to the master of a ship going up the northern coast. Similar conditions are to be found right round the coast. Why such men should be excluded from this Bill I cannot understand. There is no constitutional reason for their exclusion. The English Act is very definite, because it includes all pilots.
– They are included in this Bill ; they come under the phrase “other person.”
– I think that the provision should be made more definite, because a pilot might 01 might not be engaged by a ship. Unless pilots are specifically included in the definition, I do not think they would be covered by the words “other person.” It deals with the master, the officer, the seaman, and the apprentice. What other person could there be on a ship who would) be entitled to compensation under the measure?
– The pilot would be working the ship.
– No, the duty of a pilot is not to work the ship ; but simply to give the master the benefit of his local knowledge.
– But he would be rendering a service to the ship. .
– He would be rendering a’ service to the ship and the master, but he might not be paid by the owners at all. He might be paid, as in South Australia and New South Wales, by the State. If he was not paid by the shipowners he could not be called a servant of the ship.
– The definition con- . tains the words “in any capacity.”
– Is a ‘pilot engaged “ in any capacity “ on a ship when he is a State servant? Suppose that in the performance of his duties a Customs officer was standing over a hatch, and- that he was injured by a block falling from aloft, would he be entitled to claim compensation from the ship?
– Certainly not.
– A Customs officer would be in exactly the same position as would some pilots. He would be attending to the working pf the ship ; without his presence she could not be worked at all. I should like to learn from the Minister why pilots have not been specifically included in the definition.
– - Usually, after listening attentively to the two sides of an argument, one has very little difficulty in arriving at a conclusion ; but on this occasion I candidly admit that I have considerable difficulty in determining how to vote. I have had no experience of sailors except in crossing the Australian Bight a few times with them. I do not profess to be conversant with their calling. But even those who have had experience of sailors are not clear as to what their position under this clause would be. Senators Guthrie and Turley want the Bill to include men other than seamen who are engaged in salving operations. The Minister has somewhat impressed me by his statement that this is a Bill which provides for compensation to seamen alone. I know that some Compensation Acts relate to special callings, while other Compensation Acts have a general application. In Western Australia we have a Mines Regulation Act which provides for compensation to everybody engaged in coal-mining. We also have a Compensation Act of a general character which includes the gold-miner, the ploughman, the carter, the factory hand, in fact every description of shore labour. Salving, I take it, is an operation which is not carried on daily, but only occasionally, say once in twelve months or five years. The salvors, I suppose, would be employed by a contractor from the shore. Would a Compensation Act which applies to the employment of men on shore apply to these men who, though engaged on shore, might be working on a ship which was lying some distance out?
– Yes, if the ship was lying within the jurisdiction of the State; but suppose the operations were outside the 3-mile limit.
– I understand now that my honorable friends want 10 provide for the man who is between the devil and the deep sea. I desire to give a reasonable vote. I am afraid that if we interfere with the definition of seamen we shall cut out a good deal of the special provision which is intended to be made by the measure. If it is desired to deal with cases arising outside the territorial limit, I think it will be necessary either to insert a new clause or to make a specific addition to the definition clause.
– Suppose that a man was within the 3-mile limit and was doing salvage work on a wharf?
– If the accident occurred within the 3-mile limit under the circumstances the honorable member describes, compensation might be claimed under a law affecting shore workers ; but if it occurred to one of these men while working outside the territorial limit an Act affecting shore workers would not apply. I should like, if possible, to get some help from the Vice-President of the Executive Council in this matter.
– I am afraid that we cannot stretch the Constitution, and that is the difficulty I see in dealing with this matter. I remind Senator Henderson that Senator Guthrie, referring to salvage crews, said that they were really lumpers, or stevedores. The mere fact that they are carried as passengers from the port at which they ordinarily work to some more distant scene of operations does not, so far as I can see, bring them within the definition of “ seamen “ under this Bill.
– Take the case of the Elingamite, to which I referred, where the salving was done from the ship that took the salvage crew down to the vessel.
– As Senator Guthrie has pointed out, those men would still be lumpers and stevedores, only they would be working from the deck of a ship instead of from a wharf. ,It is very doubtful whether such workers would not have to depend on a Workmen’s Compensation Act.
– They would be outside such an Act as the law stands at present.
– I .am afraid that they would, being beyond the jurisdiction of any State. We are relying for our jurisdiction in this matter on our power to deal with navigation. If we depended on the trade and commerce power the persons entitled to compensation would be limited to seamen going from one State to another.
I am glad that the legal advisers of the Government have in this matter taken advantage of the power to deal with navigation, which gives us a wider range of jurisdiction. We must be clear that all whom we seek to benefit are navigators, otherwise we shall run the risk of a portion, if not the whole, of this Bill being declared unconstitutional. I ask that the definition of seaman be allowed to stand for the present.
– With the inclusion of the word pilot.”
– I have no objection to the insertion of the word “pilot” as proposed by the honorable senator, but it might be necessary to review that in the event of the pilot services of the States being taken over by the Commonwealth later on, should we at any time propose a general law dealing with all the public servants of the Commonwealth.
– I do not know whether the Minister has given any consideration to the case of the men to whom I have referred on the articles of vessels engaged in the South Sea Islands trade, who work cargo on lighters and ashore, and who are sometimes engaged ashore in repairing ship’s equipment.I suggest that to meet the case of these men we should amend the definition of “ seamen “by adding the words “or its cargo or equipment off or on such ship.” That would enable the administrator of the Act to follow the seaman after he leaves his ship to work on a lighter or on shore in repairing the equipment of the vessel. Our trade with the South Sea Islands is now of no inconsiderable dimensions, and I think that the men engaged in it should be given protection under this measure.
– I am satisfied that the Bill covers all that Senator Lynch desires. The honorable senator refers to men who under certain conditions leave a ship and work on lighters or ashore in connexion with the loading and unloading of cargo. I refer the honorable senator again to clause 6, which provides -
If personal injury by accident arising out of and in the course of the employment is caused to a seaman- his employer shall be liable.
– If the Minister will look at clause 4 he will see that the Act applies to the employment of seamen “on” any ship.
– Surely the honorable senator does not imagine that under that expression compensation would be limited to a. case of an accident to a seaman while he had his foot on the quarter-deck.
– Suppose it occurred while he was in one of the ship’s boats ?
– Exactly. If a man employed as a seaman on a snip is told to get into a boat for the” purpose of doing something around the ship he is regarded as being employed upon the vessel. If he is sent from the ship into port with a boat to bring out rations he is still regarded as employed on the vessel. The Bill covers the case of the men to whomSenator Lynch has referred, and in the circumstances the clause might be allowed to pass.
– In support of the Minister’s contention I might say that under the Merchant Shipping Act a seaman’s duty is on board a ship, in boats, or on shore. Ruegg, the authority I quote, says at page 476 of his book -
It will be observed that the rule assumes the accident to the seaman to have occurred at sea, but the accident might occur when the seaman is ashore on the service of the ship on foreign land. It is believed that in such a case the seaman does not lose the right of compensation. The nexus between himself and his ship will, it is thought, not be broken by the temporary absence, and he will still be regarded as a seaman engaged in the service of the ship, though his duty may take him ashore in a foreign country.
– Is that an opinion, or the judgment of a Court?
– The Seamen’s Compensation Act has only recently come into operation, and there have, so far, been no decisions under it reported. I quote that statement, however, from the best authority on the subject in Great Britain. I am satisfied that the Bill covers the class of seamen referred to by Senator Lynch. I move -
That after the word “ apprentice “ the word “ pilot “ be inserted.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 4 agreed to.
Clause 5 -
This Act does not apply -
to a seaman whose average weekly earnings calculated in accordance with the provisions of this Act exceeds Five pounds per week,
to a seaman who is a member of the crew of a fishing vessel and is remunerated by a share in the profits or the gross earnings of the working of the vessel.
– I think that this clause should be left out altogether. It is proposed that if the average weekly earnings of a seaman exceed £$, he shall not be entitled to compensation. In moving the second reading of the Bill, the Minister said that such persons could make better provision for themselves outside of this measure. But that has nothing to do with it. We have included in the definition of “ seaman,” “ master, officer, apprentice, or other person,” and then in this clause we are asked to say that if the master of a vessel receives more than £5 per week he shall be denied the benefits of this legislation. Every person engaged on board a ship should be entitled to compensation. The man next to the master might be receiving a few shillings less than £5 per week, and he would be entitled to compensation. So far as the right to compensation is concerned, it should not matter whether the seaman received £5, £6, or ^7 per week. I could understand the inclusion of such a provision in the English Act, as in Great Britain very few masters of vessels trading between ports of the United Kingdom get more than £18 or ;£ig a month. In Australia, wages are much higher, and many masters and engineers get more than £5 per week. The argument that men receiving more than -£5 per week can make provision for accident outside this Bill might be applied to every person who will be entitled to compensation under it. The object of the Bill is to provide compensation for seamen, and the insurance a seaman effects outside of its provisions is a matter for himself. It should not be permitted to interfere with the compensation which he is entitled to claim under the Bill. Of course, I can understand paragraph b being included in the Imperial Act, because upon the motion for the second reading of this measure I pointed out that in the Old Country quite a large number of men who are engaged in the fishing industry earn a livelihood bv appropriating a proportion of the proceeds realized by their catch. Their earnings are rarely more than the equivalent of a wage-
– Oh, yes.
Senator TURLEY.They may be very much less than a wage. Out of a crew of four, three may be engaged in working a vessel. They usually have an apprentice who is bound to them for three or four years. He receives not merely what he is entitled to under his indentures, but also a proportion of the catch, which is sold in the open market. This is a system which has been prevalent in the Old ‘Country for years. But no such system obtains in the Commonwealth. Of course, I know that there may be two or three individuals jointly interested in the ownership of a fishing craft. They may agree to divide the proceeds of their catch.
– But suppose that one man owns the boat and that the others agree to join- him on shares, what would the honorable senator propose?
– The position then would be similar to that of a person who is engaged on shore.
– Would the honorable senator call their work “employment?”
– It seems to me that it would be employment. I think that this provision has been copied from the Imperial Act without any thought having been bestowed upon its application to local conditions. Take the case of a man who owns a vessel, and who hires it out to three or four others upon the understanding that they are to be paid with a proportion of their catch.
– If there are no earnings there will be no wages for them.
– Exactly. Such men are often in a worse position than is the individual who is employed for wages.
– They are often in a better position.
– As a rule, they obtain no more than wages.
– Does the honorable senator think that in Grimsby and Hull they would jump at opportunities of that sort if they did not earn more than wages?
– They do so simply because of the system which has grown up in connexion with the fishing industry there. If a man be engaged in coalmining he is paid bv results, and if in the course of his employment he is injured, he is entitled to compensation. Why should we make a discrimination to the detriment of the individual who earns his livelihood on the water? There is no other avocation which is dealt with in this way.
– Oh, yes, mining on tribute, for instance.
– Why should men engaged in the fishing industry be subject to a special disability?
– The reason is that in the case of co-partners the relations of master and servant do not exist.
– But in’ the case I have cited the men have no interest in the vessel.
– The honorable senator is viewing the matter as if the shipowner employed the men and paid them with a part of the catch. Let him view it from the stand-point of the men hiring the vessel and paying rent with a portion of the catch.
– Where in Australia have we anything of this kind to legislate for?. I repeat that this provision has been taken from the Imperial Act without regard to our local circumstances. Here, if men are employed by the owner of a vessel to engage in fishing they are usually paid a wage in addition to a bonus in the event of their catch proving unusually large. But there are very few who are entirely dependent on the catch. In my opinion it is unfair to exclude from the operation of this Bill any man who is engaged upon the sea.
– We have to be careful that we do not penalize the co-operative system as it is applied to ships engaged in the fishing trade.
– I would again point out to the honorable senator that the position of the persons engaged in that trade is exactly analogous to that of the coal miner whose wage is fixed by the selling price of coal. Would the honorable senator argue that because a miner is practically working for himself he should be excluded from the operation of a compensation Bill.
– Can the honorable senator, give me one instance in which a mine has been sold and the proceeds distributed amongst the owners and the men?
– The position of the coal miner is exactly upon all fours with that of the persons whose cases I have cited.
– The fisherman cannot always increase his haul by working harder, as can the coal miner.
– But he can make his haul less by not working hard.
– Exactly. He may secure a good catch one day and an indifferent catch another. If, as the result of some defective gear, he is injured in the course of his employment, why should he be debarred from claiming compensation?
– If the apportionment could be made absolutely fair as between master and man, the honorable senator would never think of. compensation.
– The honorable senator always thinks that we desire to go too far. He reminds me of the position which was taken up in England when the first Workmen’s Compensation Bill was under consideration. That measure was limited to a very few industries, and at that time the idea of bringing a servant girl under its operation would have been regarded as. the idea of an anarchist.
– I think that if the honorable senator’s proposal be carried it will do a great deal of harm to the working man.
– How can a man who goes out fishing, and who possesses nothing, be injured by the adoption of such a proposal?- We are, in Senator Gray’s opinion, doing the workman a great injury by saying he shall receive compensation from the man in whose employment he is; and that he shall secure the benefits conferred by the law. I shall vote against the whole clause. I consider that a man is entitled to compensation for injury whatever his occupation may be ; and the wage which he receives should make no difference whatever.
– I intend to move to strike out paragraph (a) of the clause ; but I must resist the proposal to omit paragraph (b). Senator Turley has said that the conditions which exist in England are non-existent in Australia. If that be so., the provision can do no harm. On the other hand, by striking it out we may possibly do harm. Suppose three men hire a boat, and join together for fishing, agreeing to share the catch with the owner.
– No one is liable then.
– But if we were to strike out paragraph (b) the owner of the boat would be liable. There is.no difference in principle between paying the owner in cash or in a share of the catch. But, if two or three men say to the owner of a boat ; “ We are prepared to give you a third of the catch in payment,” Senator Turley says that he would make the boatowner liable in case of accident : whereas if the men paid the owner in cash for the hire of the boat, Senator Turley would not make him liable. Surely that is unreasonable.
– Does not the saint principle apply on shore?
– Certainly not. If I hire a man to drive a dray for me, he is entitled to the benefits of the Workmen’s Compensation Act. But if he hires the dray from me, and drives it himself, I am not liable. That is an exact parallel. In the one case the fishermen go out and pay the boat-owner in kind ; in the other case, the owner of the dray is paid in cash. There is no difference. These little cooperative ventures are quite common in New South Wales, and I should not be surprised to learn that they were also common in a place like Geelong. If there were a danger of a large corporation, owning a considerable number of boats, engaging in business here, and being paid for the boats by taking a share of the fishermen’s catch, as is the case in England, I should be inclined to support Senator Turley in what he desires to do.
– That, is a practice that will grow up under this Bill.
– Well, Parliament is going to be continuous, and if such a practice should grow up, future Parliaments would be able to deal with it. At present the practice does not exist. On the other hand, the real difficulty, to which I have referred, does exist. Quite a number of men are in the habit of joining together in co-operative parties for fishing purposes, and paying the owners of their boats by means of part of the catch. If paragraph (b) were struck out, the owner of a boat, when’ approached by such men, would say : “ I cannot let you have my boat, because if I did, responsibility .would be thrown on me under the Seamen’s Compensation Act.” I ask Senator Turley to remember that I am as keen a friend of this Bill as he is. I can assure him that if any such danger arose as he has pointed out, 1 should be very anxious to provide against it. But, on the other hand, I do not wish to put an end to a practice which I know to be common in New South Wales, bv putting on the shoulders of the owners of boats the obligations attaching to shipowners under this Bill.
– I am glad that the Government have accepted the suggestion as to leaving out paragraph a. As to paragraph b the only people, so far as my knowledge of the coast of Australia goes, who are likely to be affected to. any great extent are those engaged in the pearling industry. A considerable number of them work on the share system. Indeed, I am inclined to think that all the boats work on the share system. A fixed wage of a very small amount is paid to the remainder of the crew, the major part of the remuneration being a share of the pearls and the shell obtained during the season. I trust that the VicePresident of the Executive Council will see the inconsistency of inserting a clause that would give an advantage to the employers of black labour in the pearling industry that is not extended to any other employers in Australia.
– Is the honorable senator referring to Australian boats?
– They are owned by British owners, who are supposed to be Australians, but they employ principally Japanese, Malays, and other men from the East. The industry is not very profitable to Australia, because the wages earned by the men are principally taken to the East. In the meantime, our waters are being depleted of a very valuable asset. The industry is of scarcely any value to Australia as at present conducted. Under these circumstances, to make an exception in favour of employers of such labour would be a great mistake. Viewing the matter from that aspect, I should like the VicePresident of the Executive Council to postpone the clause if he is not inclined at once to accede to the suggestion to omit it. It would be as unfair to make an exception in the case of men working at sea as in the case of men working on shore. Take the case of coal miners, who. are paid according to value of the coal produced. It is a well-established principle in the coal trade.
– There is a difference between wages in the ordinary sense and a share in the profits.
– Wages are generally understood to mean the payment received for labour. The case of a miner being paid so much per ton when the coal which he brings forth is sold at a certain figure is on all fours with the case of men who hire a boat and give the owner a share in their catch. The Vice-President of the Executive Council should take time to consider the clause. No good can come of it as far as I can see. It will not assist the best class of employers. It can only assist those employers of black labour in Torres Straits and in Northern Australia, who are conducting an industry that. is of no value to the rest of the Commonwealth. I should be very sorry to see the employers of black labour receive under this measure any advantage which we are not prepared to extend to the employers of white labour. In my opinion, it would be a great mistake to make any difference which would have the effect of bestowing an advantage upon the former.
– It has been argued that with rerespect to the. Workmen’s Compensation Act the conditions of workmen in Australia differ in some respects from the conditions of workmen in Great Britain. I question that view, because some of the Australian Acts were distinctly framed on the lines of the Imperial Act of 1897. In sub-section 1 of section 1 of that Act, it is provided that-
If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act.
Under that provision, first, there had to be the relation of employerand employe in an employment, and when once that relationship was established, and an accident happened in the course of employment, the employer prima facie, and almost conclusively by reason of that fact, was liable to compensate the employe. Under that Act, which defines first employment, and still more closely the relation between employer and employe, a question arose with regard to the working of a mine, just as a case may arise here with regard to the working of a mine, or the cultivation of land on the share system. In England, a case arose in 1 905 as to whether or not an employer was liable to pay compensation. It is the case of Ellis v. Joseph Ellis and Company, and the headnote reads -
A member of a partnership formed for the purpose of working a mine, by arrangement with his co-partners, worked in the mine as a working foreman, and received weekly wages out of the profits of the business. While working in the mine, he met with an accident which caused his death, and his widow thereupon claimed compensation under the Workmen’s Compensation Act 1897, from the surviving partners : - field, that the case contemplated by the Workmen’s Compensation Act 1897, was that of a workman employed by some other person or persons; that, the deceased having been himself one of the partners in the firm for which he was working, he could not be said to have been employedby them ; and therefore that the case was not within the Act, and the applicant was not entitled to compensation.
I may here remark that our recent Compensation Acts have been framed substantially on the Imperial Act of 1897, and embody the principle that prima facie an employer is liable for any injury done to an employe during the course of his employment. By the most impartial and competent tribunal in the Empire - that is the Court of Appeal - a close distinction has been drawnby reason of the Compensation Act between an employe and a co-partner.
– But the Act of 1897 has been repealed by the Act of 1906.
– The Act of 1906 only extended the Act of 1897 to seamen.
– What is the point which the honorable senator is trying to establish ?
– The point is that once a co-partnership is established under the Workmen’s Compensation Act of 1897, a co-partner cannot claim compensation. In the case of Ellis v. Joseph Ellis and Company, Lord Collins made an important distinction. He said -
When one looks at the provisions of the Act, they do not appear to be applicable to a case like the present. The supposition that the deceased man was “ employed “ within the meaning of that term as used in the Act, would appear to involve that he, as one of the partners, must be looked upon as occupying the position of being one of his own employers. It seems to me that, when one comes to analyze an arrangement of this kind, namely, one by which a partner himselfworks, and receives sums which are calledwages, it really does not create the relation of employers and employed, but is, in truth, a mode of adjusting the amount that must be taken to have been contributed to the partnership assets by a partner who has made what is really a contribution in kind, and does not affect his relation to the other partners, which is that of co-adventurer and not employe. Such a partner cannot put himself in the position of not being a partner when he is one, or of being a workman employed, when that position would involve that he would be both employer and employ. The definition of a “workman” given in the Act might cover a person in such a position, apart from the difficulty that arises from the consideration that he would be his own employer ; but that is not conclusive, because the applicability of the Act appears to depend not merely on the question whether the injured man was a workman within the definition given by the Act, but also on the existence of the relation of employer and workman.
– Outside the pearling industry, can the honorable senator mention any cases in Australia where such conditions obtain?
– No. The distinction I have drawn attention to must have been borne carefully in mind when the Workmen’s Compensation Act of 1906 was being framed.
– There is no reason why we should not legislate differently if we think proper.
– I think that there is. Fishermen who might not have boats might be benefited very much if they could go to the owners of a boat, and say, “Hire this boat to us. We frill take what we can get, and pay you so much out of the proceeds.” In his judgment, Lord Collins points out that if the men are paid from, the proceeds of their joint enterprise they are their own employers, and therefore cannot be employes. In Great Britain, where a great number of seamen were engaged, they had before them a Workmen’s Compensation Act, and apparently it was acceptable to the Legislature, and, possibly, to the seamen, that where (here was not the distinct relation of employer and employe’ existing, it would be against the principle of such legislation to include such persons.
– Is there any reason why we should not, if we think proper, compel persons to insure themselves when they are engaged at work?
– That would be compulsory insurance, and not compensation.
– The owner of a boat might say to a person, “ Notwithstanding that you have every reason for anticipating a very profitable catch, and that you may benefit very largely therefrom, I shall not allow you to have the boats, because I might be liable to you for compensation if you were injured during the course of your employment.”
– What would he do with the boat? Would he hang it up?
– He might. Is it for the benefit of the industry or the fishermen that they should be prevented from readily getting the means of employment? I think not.
– An owner would only charge a little more for the hire of a boat.
– Yes. By way of insurance. If my honorable friends carry their point they will only deter the formation of co-operative companies.. Let it be distinctly understood that what they are practically asking is that a man may be an employer so far as his share of the profits is concerned, and that he may change his relationship whenever an accident happens, and call himself an employe. In such circumstances no owner will consent to allow small adventurers to use his land or his machinery or his boat. In view of the fact that the fishing industry has received an impetus from our legislation, it will be well for us to follow the example of the Imperial legislation, and see what will be the effect of it. If, as Senator Millen pointed out, fishing ventures are managed in such a way that the fishermen are exposed by hirers of boats to unfair risks or dangers, then we can intervene. It is now admitted on the other side that no such” conditions exist amongst owners and) fishermen. .What we practically say to a fisherman is, “ If you are an employe” in a boat, so long as the relationship of employe and employer re mains you are sure to get certain compensation.” But what my honorable friends are now asking for is that the owners of boats shall hire their boats to copartners and be made liable for compensation under the conditions of this clause. It is admitted on the other side that there is nothing of this kind taking place in our industry, and consequently no injury could be done under this clause. If we find later, as the result of our experience, and the development of our fisheries, that sea: men are employed on unseaworthy boats, and given rotten tackle, and are thus exposed to the danger of accident, Ave can deal with the matter in the light of the experience gained. It is clear, from the decision of the Appeal Court, that it Avas never contemplated that a co-partner in a business should be regarded as a workman.
– I do not know whether the Vice-President of the Executive Council intends . to adopt the suggestion of Senator de Largie, and postpone the further consideration of this clause. The conclusions of Lord Collins, quoted by Senator St. Ledger, strengthen the argument of those who are opposed to this provision. For the life of me I cannot see why Ave should insert a clause in this Bill to say that it shall not apply in these cases: The Bill is intended to provide for compensation to seamen, and if a quarryman sought compensation under it, he gould not get it. It is not intended under this Bill to compensate the owner of a vessel. hut seamen employed by him.
– Suppose a seaman rents a boat ? I know many who do.
– Senator Fraser has been a contractor, and he knows yell what the position would be. We all know something of the liabilities of contractors to-day, and how they have tried to evade those liabilities. Mining companies have induced men to step in as contractors, taking the work of a certain section of a mine, in order that, through them, they may evade their liability under Workmen’s Compensation Acts.
Sitting suspended from 6.30 to 7.45 p.m.
– I recognise that there is a difference between the position of the members of an ordinary business partnership and that of the owner of a vessel and seamen who lease it, and endeavour to earn a livelihood under a form of co-operation. A gross injustice would be inflicted upon the owner of a vessel if he were -to be held liable to compensate a seaman for an accident which might occur when the vessel was not under his control” in any way. I understand that the VicePresident of the Executive Council has agreed to leave out paragraph a, and J think paragraph b might also be left out. The proof that any man is interested in the profits of any vessel must be established in a Court of law. That should in itself be a sufficient reason for leaving out paragraph b. If a man who has met with’ an accident believes that he has a case for compensation against some one connected with the vessel, whom he regards as his employer, it must be clear that, even if he is given no right to sue for compensation under this Bill, he will have the right under some other Act. In all such cases as are sought to be covered by paragraph b, there is some agreement between those engaged in fishing under a form of co-operation. A man leases his boat, and gets so much for the use of it. When the fish are caught, one-half of the catch goes to the owner, and the balance is divided in equal or varying proportions amongst the men engaged in the actual fishing operations, and, in nine cases out of ten, the owner” of the boat is one of them.
– He frequently is not.
– Things have probably changed very much since I left the Old Country, but considerably more since Senator Fraser left it.
– I am speaking of Australia, not of the Old Country.
– I speak from experience I gained during my residence in close proximity to the very large fishing village of Cullercoates, a place that Senator Gray will remember well. There it is a common thing for a fishing boat to be owned by one or two persons’, and worked by a good many ; and the practice is to divide the catch, half going to -the owner or owners of the boat, and the other half being divided amongst those actually engaged in the work of fishing.
– Does the English Act make no provision for a case of that kind ?
– This clause is taken from the English Act.
– I believe that in England they have found just as much difficulty as we have found in framing a provision which will give full effect to what they desire in this matter. By omitting this clause altogether, we should be in an equally safe position, and less encouragement would be given to litigation.
– - I was very pleased to hear the observations of Senator Henderson, because they were so entirely contradictory of the statements made by Senator Turley. The latter led us to believe that the cooperative fishing ventures in the Old Country, into which so many men willingly enter, are of a most one-sided character. He practically urged that the fishermen, instead of joining those undertakings upon a co-operative basis really enter them as men who are in receipt of wages.
– They are merely paid in kind instead of money.
– They are paid out of the proceeds realized by their catch.
– I claim to know a good deal about the working of the fishing smacks, not merely off the coast of England, but off that of Scotland. I can assure Senator Turley that the men who work these vessels are not such fools as he imagines them to be.
– Have we any parallel cases in Australia?
– I am not dealing with that question. The fact is that so far as the fishing industry is concerned, the share system is operative throughout the United Kingdom. I believe that there are more owners of fishing smacks who have been seamen, and who have saved the money with which to purchase their vessels whilst fulfilling co-operative agreements, than there are successful men in any other industry in the Old Country. If we can bring about a similar system here by inducing seamen to become co-partners in fishing ventures, it will be better for themselves and better for the industry generally. To suggest that the fishermen in the Old Country do not know what they are doing, is so much moonshine. The owners of these fishing vessels have no control over them after they leave port, and how, therefore, can it be argued that they should be held liable in case of accident? Let us suppose that three men approach a fourth individual and say to him: “ We want you to hire us three horses and carts. We have entered into a contract to remove certain goods within a certain time and at a specified price. Will you do it?” The owner of the horses may acquiesce in the proposal. Now, if one of those men is injured whilst engaged upon the contract, how can it be urged that the owner should be liable to pay compensation?
– I am not sure that he would be liable under a Workmen’s Compensation Act.
– I quite realize that Senators Turley and Guthrie are doing their best in the interests of the fishermen. But I appeal to them not to jeopardize the cooperative principle as it is applied to the fishing industry. Every disability to which we subject that industry will tend to prevent co-operation.
– Then why not nationalize the industry?
– The honorable senator had better attempt the task.
– Until the true cooperative principle has. been established will the honorable senator allow the owners of vessels to escape responsibility ?
– That entirely depends upon circumstances. Manifestly, it would be unfair to penalize them for accidents which occur upon their vessels whilst those vessels are beyond their control. Personally, I think that the adoption of this proposal would prove detrimental to the best interests of the working classes.
.- I should be in entire accord with honorable senators opposite if I believed that the adoption of this proposal would benefit those who are engaged in the fishing industry. But I happen to know a good many of those persons, and I have talked over this subject with them. Many of them follow some other occupation during a portion of theyear, and if they had no means of hiring a fishing craft upon the share system, they would be unemployed during the remainder of the year. I think that in all our legislative acts it behoves us to be careful that we do not create any unemployment which might be avoided.These fishermen do not enter into arrangements with the owners of fishing vessels with their eves shut. As a matter of fact they thoroughly realize what they are doing. At the present time, fish may be regarded as a luxury in Australia, and if effect be given to the suggestion which has been made, the result will not be a cheapening of the supply, but practically the abolition of the industry. Would any honorable senator pay£250 for a fishing boat to let upon the share system if he knew that should an accident occur upon it when it was beyond his control, he would be bound to pay compensation up to£300 ? I hope to see the fishing industry expand to such dimensions that fish, instead of being procurable only by the wealthy classes, will become the food of the working classes. But at present the latter cannot procure it on account of its prohibitive price. They can only obtain barracouta.
– The mere mention of that fish always makes me feel ill.
– I have eaten barracouta, and I can assure the honorable senator that they are not so bad after all. We do not want to increase the price of fish to the public, nor do we desire to excise from this Bill a clause the absence of which would make the fishing industry unremunerative to those engaged in it.
– It is monopoly which makes the price of fish so high.
– There is something in what the honorable senator says, but the fact remains that fish is at present beyond the means of ordinary people. I should be sorry to see anything done that would have the effect of increasing the price. I have recently talked to many men engaged in the fishing industry. They seem perfectly satisfied with their condition, except that they cannot sell their fish at a good price.
– Do away with the middleman.
– An attempt has been made in that direction, in Brisbane. I know a man who obtained his fish direct from the fishermen, bought a cart, and took fish round to private houses. But he was followed by Armenians, who control the fish trade in Brisbane. They sent a cart in front of him and another behind him; and if he sold fish at 3d. per lb. they would sell for 2d. or1d. Ultimately they ruined him. No man would go into the fishing industry under the conditions sought to be laid down. If Senator Henderson were the owner of a boat and knew that he ran the risk of having to pay£300 in case of accident to a man who hired it from him, he would not be willing to let. He is too level-headed’ and sensible a man to embark in an industry under such conditions. It seems to me that what the Opposition propose would ruin the fishing industry. I dare say that a means would be found of getting over the difficulty, but I should like honorable members to explain how it would be overcome. Instead of trying to prevent men from entering into these partnership arrangements we should offer them inducements. I know of cases where the owner of a boat gets a third of the catch, and the members of the partnership who go out to sea share the remainder amongst them. I think that is a fair proportion.
– The boat is insured and the men are not.
– Property is insured, but life is not.
– In many cases the ownerof the boat, as a member of the partnership, takes his share in the fishing, and his life is as precious to him as is that of any other member of the company. Whatever argument is brought to bear upon a question from this side of the Chamber, we always have a laugh of decision from Senator Turley, just as if he possessed a monopoly of human feeling. I take it that those who are in favour of the clause under discussion are just as much actuated by feelings of humanity as he is. From my inquiries into the fishing industry I feel satisfied that the fishermen themselves do not want such a provision as honorable senators opposite favour. They know that it would injure them in their employment and prospects. In Tasmania a large number of men are engaged for six weeks or three months in the year on the wharfs in connexion with the fruit trade. They work very long hours and get good wages. I have known them to work for thirty-six hours at a stretch. I do not think they should be allowed to work so long. When the fruit season is over, a number of them rent boats, and for six or seven months earn their living by fishing. If such a provision were made as honorable senators opposite support, and the owner of a boat were made liable to a claim of£300 in case of accident or loss of life, these men would not be able to hire boats. An honorable senator near me interjects that they would be able to get any number, but I venture to say that if he were a boat-owner he would not be willing to take such a risk.
– Why not?
– Because of the liability. Senator Guthrie would not take such a risk.
– Of course I would.
– Any one who knows the honorable senator is aware that he is much too level-headed, and knows too much about business, to undertake such a liability. I am satisfied that what honorable senators opposite propose would injure the fishing industry and increase the price of fish. Therefore I hope that the clause objected to will be retained.
– I know that Senator Sayers has recently been living amongst men engaged in the fishing industry, and I have no doubt that, as he has told us, he has made inquiries amongst them. But he has not gone far enough. He knows very well that the Bill does apply to men engaged in small ketches carrying a crew of three, four, and five. Compensation has to be paid on account of injury in such cases. Are we going to handicap the owners who are carrying on business in such boats around the coast of Australia, whilst we leave the fishermen unprovided for? If three men agree to work together as partners in fishing and one of the three is injured, the other two would naturally make provision for him during his illness.
– The honorable senator wants to make one man responsible.
– We want to make the ship responsible. We do not put the owner in gaol if he does not compensate an injured seaman. We detain the ship in port until the owner pays.
– The poor owner has to pay !
– The “poor owner “ does not go to sea as a rule, although he receives his profit. Recently, when we were dealing with another matter, the “ poor owner” did not receive much consideration from honorable senators opposite. He was made responsible for his ship andeverything she carried. When Senator Gray was interested in shipping he did not go to sea in his own vessels. He stayed at home in bed, when hurricanes were blowing outside. In the case of a sailing ship or a steamer we say to the owner, “ You must make provision for the men whom you send to sea.”
– The circumstances in that case are different altogether.
– No, they are absolutely alike.
– The honorable senator is putting a P. and O. boat on the same plane as a cockle boat.
- Sir Thomas Sutherland does not go to sea in a P. and O. boat, nor do the shareholders. My contention is that if three or four men are engaged in a partnership they ought to be compelled under this measure to make provision for each other in the case ot an accident occurring.
– They can manage their own business.
– So can all those for whom we are legislating in the Bill, but have they done so? No. The business of the man who goes to sea has been neglected.
– The cases are totally different. In one case the men are copartners, but in the other case the men are working for wages.
– The clause does not meet the case of a co-partner, and yet the honorable senator is supporting it. 1 am prepared to adopt the clause if the words are eliminated, “ and is remunerated by a share in the profits.” The share might be 5 per cent.
– The honorable senator is only putting a supposititious case.
– No, here “is the provision for the honorable senator to read.
– There is no such share as 5 per cent.
– I have known men to go out in fishing boats for their tucker alone. Men will always be prepared to go for a share of 5 per cent. I am willing to delete the words “ by a share in the profits” and to make the clause read “ and is remunerated by a share in the gross earnings of the working of the vessel, equivalent to the positions held by them.”
– There are no positions held by them.
– One of the men must te the master of the boat, and surely the honorable senator is willing to give a larger share to him than to the men who are under him.
– In the case of an equal share we have a co-partnership pure and simple. If, however, the clause is left as it is, an owner can give whatever share he pleases, and so get outside the’ provisions of the Bill. The clause applies to every man who goes to sea in a fishing boat oh a fixed wage.
– No wages are paid in those cases.
– The honorable senator is wrong. Not only, on the trawler Endeavour, but on a number of fishing boats a fixed wage is paid. The English Act provides for the payment of fixed wages. Otherwise owners could evade the law bv giving a bonus.
– How is the honorable senator going to apply the provision” to the case of two men who are renting a boat for £1 a month?
– I am prepared to exempt such cases. As regards the question of a co-partnership my honorable friend’s argument is entirely gone. I am prepared to exempt co-partners who have not an equal share in the gross profits. Take the case of a man who is remunerated by a share of the profits. Will the honorable senator agree to exempt such men ? The authority I have already quoted says -
But the section is not clearly framed and the Merchant Shipping Act 1894 draws many distinctions between the sea service and the seafishing service.
From the Imperial Act we have adopted a provision which, according to this authority, is not clear, and the amendment I have suggested will make it absolutely clear. Just before we adjourned for dinner Senator St. Ledger referred to a very old Imperial Act, and quoted the decision of the King’s Bench Division in the case of Ellis v. Joseph Ellis, and Co. Apparently he was not aware that since that time the whole law of workmen’s compensation has been remodelled. He was very far astray when he informed the Committee that the Imperial Act of 1906 only applied the principle to seamen.
– No, I said that it included them.
– It is a consolidating Act, and one section applies the principle to seamen. If a man is remunerated by a share, that share may be nothing. Every one can understand that if the wages of fishermen were £6 a month an employer might say, “ I will give you a month and 5 per cent. on the value of the fish that you catch,” and so evade the provisions of the law. If three or four men are going to sea, each of them should be made to insure against accident to the others in fishing. The fundamental principle of this legislation is that each industry shall bear the cost of accidents ‘occurring therein. Without some protective legislation a poor man who got hurt on a boat would have no nurse or doctorto attend to him.
– If three men are engaged in a business they arenot compelled to insure against accident to each other.
– An employer can take the risk if he pleases ; but, as a rule, he takes out apolicy of insurance. ‘ If honorable senators will reflect a little I think they will see that there is really no reason for excluding fishermen from this clause.
– I admit that of this question I do not know very much. I feel that I am amongst experts. I have listened attentively, to the speeches from each side, and come to the conclusion that Senator Millen is in theright. Suppose that Senator Findley, Senator Guthrie, and. myself decided to go fishing in a boat belonging to Senator “Gray, and that one of the conditions was that he should accompany us and get a share of. the catch, and that he acceded to our request. If we did not succeed in getting a haul there would be nothing to divide, but if we got a good haul there would be a lot to divide. But in the meantime would it be fair or businesslike for any one of us to say to the honorable senator, “ If I strain my ankle or hurt my arm or get my head bruised 1 shall look to you for compensation.” It would be absurd to make such a proposition ; but that is what the clause would allow, I think. I like to follow Senator Guthrie in these matters when I can. I know more about land matters, and, perhaps, the Chairman will bear with me while I give an illustration. In South Australia an employer once said to his man, who was married, “ Jim, I cannot afford to keen you another year on account of the red rust in the crop, but if you will agree to serve me as you are now doing and take a seventh of the crop at the end of the year, you can go on.” The man agreed to the proposition. It turned out to be a good season, and he got 127 bags of wheat, there a law in the country which would interfere with an arrangement of that kind ? It was an “ honorable understanding.”
– If the man had been in a State with a Workmen’s Compensation Act would he have received compensation in the event of an accident?
– I do not know.
– I am sure that he would not.
– In the case I put just now the three senators who went with Senator Grayin his boat on the understanding that there should be a fair division of the profits, would not get any wages from him.
– The clause includes more than that.
– It would meet a case of that kind. I do not know much about the fishing industry, but I have given close attention to the discussion, and have come to the conclusion that what is proposed is the right thing to do. I have the fullest sympathy with seamen, but under this clause we are dealing with men who are not paid wages, but who are parties to an agreement under which they accept certain risks. They may make a big haul and a big profit, and they may get little or nothing. For the reasons I have stated, I intend in this instance to support the Government.
– Senators Gray and Sayers have had a good deal to say on this clause. They have dealt with co-operation, and copartnership, and have tried to prove that it is necessary to retain this clause in order to preserve the beneficent forms of cooperation and co-partnership which exist in the fishing industry. I trust that the clause will not be modified in any way, but will be struck out altogether, as it is opposed to the principle on which this legislation is rightly based. There is no true cooperation and co-partnership in the fishing industry at the present time. The cooperation to which Senators Gray and Sayers have referred is like that between the owner of a cab, who lets it out for 10s. a day, and the cab-driver who hires it at that price, because he is too poor to own a cab himself . The driver may make 12s. per day by the use of the cab, and he has then 2s. on which to keep himself and his family, and the owner has what he considers a reasonable return on his capital. The principle on which this legislation is based is that the tax necessary to provide compensation for injury should rest on the industry in which the injured person is employed, and not upon the employer as an employer. For instance, under this Bill, the fishing boat, whether it is worth, £10 or ^10,000, should be regarded as in the same position in relation to the law that a factory, whether it contains one room or fifty, is in relation to a workmen’s compensation law. The necessary provision for insurance against accident should be regarded as part and parcel of the liabilities of the industry. It should be regarded as a direct tax upon the industry and not upon individuals.
– Does the honorable senator mean to say that the owner of a fishing smack insures his boat and his men? He does nothing of the sort.
– It is the boat as representing the capital employed in the industry that should bear the tax, and not the owner of the boat as an employer. I can give one or two illustrations to show the kind of co-operation and co-partnership which Senator Gray would have us believe is so beneficent in its effects. It represents merely the task and. sweating system in its worst possible form. We have in Melbourne a system of building under small contracts. A builder understakes the building of two or three houses. He supplies the timber and plant, and lets a tender for the building at a certain sum. He must in such a case assume the responsibility under the Employers’ Liability Act. He is in exactly the same position as the boat-owner should be under this Bill. The boat-owner provides the capital and plant to carry on the industry, and poor men who do not possess a boat themselves are driven by competition to offer their services to the boatowner for a particular trip on the lowest possible terms. That is what Senator Gray describes as co-operation and copartnership. Under a similar system of cooperation in the building trade in Melbourne men are entering into co-partnership with contractors to build houses for less than the labour cost. It is only another form of sweating.
– That must be very exceptional.
– I regret to say that it is very general in Melbourne to-day. I can quote another and a very dangerous industry as affording an illustration of this kind of co-partnership. What do honorable senators think goes on in the quarrying ‘ industry? The owner of the land does not work the quarry as owner of the land ; he charges 7s. 6d. per man per week for the right to quarry stone from his land. The men engaged in the work use rackarock, dynamite, and other explosives. They may. be said to be co-partners with the owner of the quarry, who is the representative of the industry. But this is not co-operation; it is, really the task system. We are being asked to exempt some persons from liability, under this Bill, because they are owners of boats.
– What co-operation does the honorable senator approve of?
– I approve of co-operation based upon just terms to all the co-partners engaged in it. If one man owns a boat and two others join with him in a fishing trip under conditions which their necessities compel them to accept, whether they are fair or not, I do not call that co-operation.
– Could the honorable senator mention any special instances of that kind?
– I could quote not one, but thousands of cases where that kind of thing is going on.
– In the fishing industry ?
– When Senator Gray was speaking of the beneficent operation of co-partnership in the fishing industry in the Old Country, he should have mentioned the actual conditions, and should have stated what the fishermen actually receive. In most cases the boat -owner takes 50 per cent, of the haul. Why does he do that? It is because he has a certain amount of capital embarked in the trip, and he must be compensated in proportion to the amount of the capital he has invested. I repeat that the basis of this legislation is not to consider individuals, but to provide that the industry, as an industry, shall be responsible for the compensation of those who may meet with accidents in it. If that principle were followed in the application of this legislation to the fishing industry, the owners of boats for whom some honorable senators have pleaded, could overcome ‘the difficulty by charging a slightly higher rate for the use of their boats.
– One reason which has been very strongly urged in support of the clause is that if Senator Turley’s suggestion were adopted it would increase the cost of the supply of fish food in the Commonwealth. If those who hold that view will recall what is happening in the large centres of population, they will admit that what is responsible for the dearness of fish is the presence of the middleman, and the faulty system of distribution which obtains in the industry. A fish supply can be placed upon the wharfs to-day at a price which is almost startling, and if we compel companies or firms to insure themselves against accidents to their employes, the cost of that supply will be enhanced only in an infinitesimal degree.
– Then why make such a fuss about the matter?
– I think Senator Gray made the most fuss about it. Regarding the merits of the proposal, I recognise that the Bill is a slavish copy of the English Act. If the clause be retained in its present form, the owners of fishing vessels around our coast will soon band themselves together, and contract themselves out of their liabilities under this Bill. Quite a number of employers, whenever they feel that legislation is about to compel them to discharge their obligations to their employes, combine for the purpose of contracting themselves out of that legislation.
– If that be so, it is futile to enact any legislation.
– I cannot accept that excuse from the Vice-President of the Executive Council. He is too cute not to perceive that under Senator Turley’s proposal it will be impossible for the owners of fishing vessels to contract themselves out of their liabilities. Let us take the case of the owner of a fishing vessel. He has two courses open to him, if he wishes to make his vessel profitable. He can either employ a master and crew’, and send them out fishing, or he can hire the craft out to a party upon the understanding that they will share with him in the proceeds realized from their catch. I submit that in both cases a contract is made.
– The honorable senator must recollect that the law draws a distinction between them.
– I find that Parsons and. Allen, in their work upon The Workmen’s Compensation Act 1906, concur in the belief that the real essence of distinction between a case such as is contemplated by the clause in this Bill - that is to say, between men who are sharers in the profits of an industry - and men who are engaged in ordinary day work, is the power of the employer to supervise their work. In order to clinch my argument, I may. perhaps, be permitted to cite a few English authorities. In the case of Dutdop v. McCready - a member of a gang employed upon piece-work and themselves employing helpers, received his pay through the leader of the gang, who divided the amount amongst its members. He had to conform to the orders of the respondents’ foreman just the same as a party of men working under the share system in the fishing industry would have to do-
– Oh, no. There is no owner or his representative there.
– It is exactly a parallel case. The quotation continues -
He had to conform to the orders of the respondents’ foreman and to the general rules and regulations of the yard in which he worked. Held, that he was a workman within the meaning of the Act and not an independent contractor.
Again, in Ellis v. Joseph Ellis and Coy., which was quoted by Senator St. Ledger, I find the case stated in these terms -
A member of a partnership formed for the purpose of working a mine, by arrangement with his co-partners worked in the mine as a working foreman, and received weekly wages out of the profits of the business. Held, that the case contemplated by the Workmen’s Compensation Act 1897, was that of a workman employed by some other person or persons; that the deceased, having been himself one of the partners in the firm for which he was working, he could not be said to have been employed by them ; and, therefore, that the case was not within the Act. Cozens-Hardy, L.J., expressly excepted from the decision the caseof a workman employed by an incorporated company who receives a share of the profits expressing the opinion that such a case would be within the Act of 1897.
Lord Justice Cozens-Hardy expressly exempted from the operation of the Act an employe who received a share of the profits, which is exactly what the clause in the Bill provides. The proposal of the Minister is to exclude from compensation any seaman who is a member of the crew of a fishing vessel, and is remunerated by a share in the profits or the gross earnings of the working of the vessel. Why should the Government distinguish between persons who are compelled to go to sea and those who are engaged in kindred enterprises upon shore? There is no justification whatever for so doing.
– It appears to me that honorable members have overlooked the sharp distinction which should be drawn between those who work for wages, and those who are co-partners. I ask Senator Turley especially, to remember that it is necessary to keep that distinction in view if we wish to arrive at a correct conception of the effect of his suggestion. What would happen if we agreed to his suggestion to eliminate the clause ? Does he sup- pose that persons who would otherwise be debarred from receiving compensation would then be entitled to it ?
– Then what position would he occupied by persons who are working upon shares? Would they be entitled to compensation ? Not at all. Why? Because the persons with whom they were working would immediately take the case into Court, and contend that they were their co-partners.
– But they would not be co-partners.
– That question would have to be decided by a legal tribunal. Personally, I think that the Court would hold that these profit sharers were copartners, and not employes. The cases which have been cited to-day support that view. Where three or four men join together in a fishing venture, it is idle to contend that they are anything but partners. I come to the suggestion of Senator Guthrie, which clearly has in view that class of man who may be rewarded both by wages and by a sharein the profits. It is doubtless desirable to make an amendment, but unless we keep the clause in the Bill, it may be possible for a man paid partly in wages and partly by a share, to be held by some Court to be a partner in the concern. So long as he receives any remuneration in wages, he ought to be entitled to the compensation. For this purpose, 1 propose to introduce the word “ wholly “ after the word “remunerated.” The effect would be to include within the scope of the measure all those who in any shape or form receive a proportion of their remuneration in wages. On the other hand, it would exclude from the Bill those who can only be regarded as joint partners in a venture. I now formally move -
That paragraph a be left out.
Amendment agreed to.
Amendment (by Senator Millen) proposed -
That after the word “ remunerated “, paragraph b, the word “ wholly “ be inserted.
.- Earlier in the evening, Senator Gray became quite eloquent in his endeavour to show the marked improvement that has been made in the condition of fishermen in waters outside Australia. He tried to make us believe that private enterprise in the fishing industry has been superseded by the great and just principle of co-operation. In his anxiety to show what kind of cooperation existed, he told us that the boats, nets, and accessories in connexion with the fishing industry were so extensive and costly that the fishermen themselves could not purchase them, and consequently rented them from owners.
– I never said anything of the kind.
– The honorable senator said that the fishermen went to the proprietors of boats, and accepted the conditions offered by them. He called that cooperation.
– Mr. Chairman, is the honorable senator justified in putting into my mouth words that I never uttered ?
– There is no point, of order.
– Will Senator Gray assert that fishermen in waters outside Australia work under a true system of cooperation, and that capitalists are not interested in the haul which they secure?
– I made no such statements.
– It has been asserted that if we do not pass the clause as it stands, the proprietors of boats will not allow their vessels to be rented by fishermen, and that, therefore, the fishing industry will be ruined. That shows that the fishermen do not own the boats, and that there is no true principle of cooperation amongst them. Senator Sayers asserted distinctly that if we made the owner who hired a boat responsible, the handicap upon the fishing industry would be so heavy that no fish would be caught in Australian waters, and we should have a fish famine. Personally, I do not like the amendment suggested by Senator Millen. The result of it would be that fishermen in receipt of wages would not be paid by the week or month, but would be engaged on the share principle. Now, the share principle in respect of fishing in some parts of Australia leads to sweating of the worst kind. Another evil effect would be that we should leave a loophole for the proprietors of boats to escape their responsibility, whilst offering no protection to the men who follow a hazardous occupation. I am strongly of the belief that many fishermen to-dav are unable to become the proprietors of the boats they use, but are compelled to work on the share system. In my view, the fishermen of Australia need a better kind of protection than is offered to them under the amendment of Senator Millen.
– I confess that I do not know very much about the fishing industry, but I take it that the same principle applies to it as to other industries. Take the case of a man who has land which he cannot cultivate. Suppose that he says to other men, “ You have horses and implements, and can cultivate this land; we will share equally in the result.” In such a case if an accident happens to one of the men working the implements, should the owner of the land pay compensation ? In the same way, if a man has a boat, and two other men agree to use it for fishing purposes, and share results, there is no reason for making the owner pay compensation if one of the men be injured. I consider that the amendment proposed by the Vice-President of the Executive Council would largely cover the cases referred to by some honorable senators. A man who is a partner in such a venture, taking his share of the reward, but being paid partly in wages, should be able to obtain compensation in proportion to the risk which he is taking. But where no wages are paid, the case of the agricultural industry, which I have cited, offers in exact, parallel to the case of men hiring boats for fishing. I shall support the amendment, which, I think, goes a long way to meet the objections which have been urged against the clause as it stands.
. - I trust that the Vice-President of the Executive Council will hesitate before pushing to a division the amendment which he has moved. He should consult the draftsman with a view to embody, what I think the Committee desires to secure. There is a general wish that we should not associate responsibility with people who are not really responsible. Take the case of a man who lets out a boat for £i a week to a number of fishermen. He assumes no responsibility, and I do not think that it is desired to impose responsibility upon him.
– But the owner of a ship who lets it under a charter is held responsible.
– The owner of a boat may find that it does not suit the people to whom he lets it to pay him in cash, and he. may agree to share some portion of their risk by accepting a share of their haul in payment. If such a man assumes no responsibility for the venture except the letting of the boat. Ave should not attempt to lay any responsibility upon him. The clause as drafted seems to me to attempt too much or too little. It would relieve every man employed upon a sailing vessel under the old system of payment for whaling from obtaining any compensation whatever. Some honorable senators know what that old method of payment on whaling vessels Avas - that the crew obtained what Avas called a “lay “ - that is to say, they obtained an eightieth or ninetieth share of the general haul of oil. This clause would absolutely put such men out of Court. The question is whether the word “ wholly “ will sufficiently do what we Avant to da If there is a legitimate partnership in which the responsibility of each man is the same, Ave have no right to attempt to fasten upon one man the whole responsibility. But if there is not a legitimate partnership, and the relation of employer and employe” exists, it is only right that Ave should put upon the employer the responsibility which belongs to him. It seems to me that the clause ought to be redrafted to give effect to that understanding.
– I think the Vice-President of the Executive Council Avas w ise in putting forward this amendment, because the clause, as it originally stood, would undoubtedly hav( led to serious abuse. It would practically have permitted the owners of fishing boats - not merely ordinary fishing boats, but also pearl fishing boats - to give to their employes a share of the profits, and thus evade the law. In the pearl fishery it is a common practice for the owner of a boat to gave his men wages, and a “ lay “ in the take of shell. In my opinion, the amendment is a distinct improvement on the clause. At the same time I consider that a good case can be made out for including those who adopt even the complete share system. It should be remembered that, as a rule, accidents occur through the tackle being in bad order, or not being sufficient in quantity and quality. The man who is responsible for that state of things, and who alone can rectify it, is the owner of the boat. To him a certain amount of responsibility should attach, because he is responsible for sending the boat to sea Avith improper tackle.
– Does not the honorable senator think that the seamen know better than any one else whether the running gear is out of order or not?
– No doubt, in the clays before Plimsoll, seamen possessed superior knowledge in these matters. But, nevertheless, seamen were found ready to take the risk, which- men always have to take, in the labour market. They were found ready to go to sea although they knew’ they were practically going to their grave. Under this clause as it stands, that risk will still be taken in the case of fishing boats. The class of boats which are likely to come under the Bill are not the small boats which are hired by a party on the share system, but boats like pearling luggers and vessels, which, probably, will take up deep-sea fishing, and be owned by wealthy men or companies ; and in order to evade the provisions of the law, if the clause, as amended, is adopted, the men will be taken on board entirely on the share system. A good deal has been attempted to be made out of the injustice which would accrue to the owner of a boat. But I remind honorable senators that that argument was used against the ordinary Workmen’s Compensation Act, in the expectation that the owner would take the responsibility of all risks. But actual practice has shown us that such is not the case. Workmen’s Compensation Acts really bring about a system of workmen’s insurance. The employer does not payt he money ; he simply deducts from the workmen’s wages a certain amount, insures them with an insurance company, and adds that amount to the expenses of his business. There are very few employers, especially large employers, who personally take the risk under an Employers’ Liability Act, or a Workmen’s Compensation Act. That is exactly what would happen if this clause were omitted. If we put fishermen, no matter whether they are employed on the share or on the wages system, on exactly the same footing as all other seamen, what would happen? If a man had a. boat, which he wished to let out on the share system, one condition of the agreement would be that every man should be insured under the Workmen’s Compensation Act.Who would take the responsibility? Nominally, the owner would, but actually it would be the insurance company.
– Does not the honorable senator see the distinction between men re gularly employed in a factory and men who are employed only now and again?
– The case I am putting occurs whether a man is employed regularly or temporarily. As a matter of fact, a number of contractors employ men casually, and yet pay to an insurance company a regular sum per week, although sometimes they have not the number of employes for whom they pay. Take the point which has been raised by Senator Millen, and which, I admit, has to be looked at. He says that if we take out the clause, the Court might hold that if a man were employed on a profit-sharing basis, he was not an employe, but a partner. But, in my opinion, the English cases quoted by Senator Lynch furnish the best reply to that contention.
– I do not question the quotation, but I suggest to my honorable friend that he should read the case more fully than Senator Lynch was able to do.
– I think it is generally held that the man who owns the building in which work is carried out, even if the men are employed on piece work, is the employer of those men. In a case arising under this clause, the fish must first be sold, and the proceeds divided equally amongst the men, but one of them would be the owner of the boat, and in, I should think, the same position as a man who finds building and material, employs men on piece work, and pays them according to the work which they have done.
– Suppose that a boat is leased by a man to a fishing party, who is the employer ?
– The lessee of the boat becomes the employer. I admit that the point raised by the Minister is an entirely legal point, but I certainly think that we ought to make some provision whereby employes, although nominally part owners, will still be able to take advantage of the law; otherwise, I am afraid that we shall be offering a premium to persons to get outside the law, so far as the fishing industry is concerned, by increasing the number of men employed on the share system, and decreasing the number of those employed on wages.
– Mr. Chairman
– Unless the honorable senator is particularly anxious to speak to-night I propose to ask the Chairman to report progress.
– Very well.
State of Business - Reflections on Labour Party.
Motion (by Senator Millen) proposed -
That the Senate do now adjourn.
– - I arn rather surprised at the Vice-President of the Executive Council asking the Senate to adjourn at this early hour. When he intimated his intention to report progress with the Seamen’s Compensation Bill, I understood he was ready to bring forward other business.
– I do not know why the honorable senator formed that idea.
– Considering that we could devote our attention to” business for another hour without being overworked, and remembering that at the end of the week it is proposed to adjourn for a considerable period, I think that, in the meantime, we should make as much progress as possible. I certainly protest against the Senate being asked to adjourn so early.
. -I, too, am astonished at the action of the Government in proposing an adjournment at this early hour, seeing that Ministers are storming up and down the country and accusing the Opposition of wickedly wasting the time of the people. If there is any wickedness in the air we have a very fine example of it here to-night. We are told on the one hand that there is urgent business to be put through, while on the other we are informed that it is intended to take a holiday for a week or a fortnight. The Government are guilty of most flagrant hypocrisy. Their press representatives are circulating throughout the Commonwealth the statement that the time of Parliament is being deliberately wasted by the Opposition. We are told that the Opposition are blocking business and obstructing measures of the greatest importance to the people. Not a single measure of any consequence has been, brought before the Senate during the present session. There has been no business in any measure submitted to us.
– What about the Invalid and Old-age Pensions Bill?
– That was merely an amending Bill; a formal measure which everyone knew would be passed without any trouble. The great questions which have been agitating the people for some time are thrust into the background. What about the proposed appointment of the
Inter-State Commission, and the new protection, which was going to safeguard the interests of the working people of Australia? What has Senator Best to say about the bargain entered into between those who voted for high duties and the last Deakin Government, that accompanying the Protectionist policy ample Protection would be afforded to the working people of Australia? Is nothing to be done in connexion with that question during the present session? As we are likely to have a. general election early next year, I do not expect that this session will be unduly prolonged. If I am right the Government must be exceedingly hopeful that they will be able to rush a great deal of business through in September and October. I can see no earthly reason for this early adjournment. Why should we not have finished the measure which was before us to-night, and so have prepared the way for other business to-morrow ? We should try to make some decent show of doing the work which the Government profess must be done. If the Government had submitted a measure in the House of Representatives, or here, dealing with the new Protection, we might have completed its consideration before now. We were promised an Inter-State Commission, that was to be invested with most comprehensive powers.
– The honorable senator would not take it if he were offered it.
– I do not think I shall vote for it if the proposal is brought forward, but I want to see what the Government’s policy is.
– Cannot the honorable senator condemn it just as well without seeing it?
– I do not profess to be able to do so. I have no doubt that Senator Millen could condemn a proposal very much more forcibly not having seen it, than he could after seeing it. The less the honorable senator knows about ^ subject the more fluently he is able to talkabout it. Our time during the present session is limited, and it is proposed to still further limit it by an adjournment.
– The honorable senator does not propose to support an adjournment for a week or a fortnight.
– I shall certainly do nothing of the kind. I wish to get on with the business of the country. There . are Tariff anomalies which must be dealt with. When I use the word “ must “ I forget that we have a hybrid Government in power that is neither fish, fowl, nor good red herring. It is a blend of Protectionists and Free Traders ; a political mule, so to speak, from which no good results are likely to spring. We are told in certain circles that the country welcomes the “Fusion,” but when the people begin to understand the kind of animal the fusion is, what a jibber it is in the traces, and that it will only kick, buck, and fight, they will get very tired of it. The Fusion Government dare not deal with the Tariff. One half of the team is pulling forward, whilst the other half are sitting back on the breeching. Although the Minister of Trade and Customs only a short time ago said in dulcet tones that the interests of the workmen must be looked after, a colleague of his in the Government criticised the new Protection as a madcap idea. As one who believes in the old and in the new Protection, I was willing by means of the Tariff to establish industries in Australia on the understanding that the Protection afforded to local manufacturers would be extended to the workmen employed in the various industries established. I want to know whether the Government are. going to do anything in this matter. If we adjourn at this earl hour, and on Friday adjourn our sittings altogether for a week or a fortnight we shall not be able to accomplish much business during this session. I have heard it hinted) that the Government have a rod in pickle for the Opposition, when we resume after the proposed adjournment. I understand that they will then be seized with a sudden spasm of energy, and that the “gag” will be freely applied to push Government measures through, without honorable senators being afforded reasonable opportunity for discussion.
– Does the honorable senator not think that he sometimes justifies its use?
– I do not care for the reputation of the Government, but I hope for the sake of representative government in Australia that what I have heard is not true. I regard what is known as the “ gag “ as an outrage on the Constitution.
– A “ gag “ is not what is required at the present moment.
– No, what is now required is a whip or a spur to induce the Government to go on with business. The “gag” is an outrage on the Constitution, because it deprives the representatives of the people of the right to speak for them in the people’s Parliament.
– It prevents them from speaking for 9 hours and 40 minutes.
– I do not think that any Parliament has such a power or should attempt to exercise it. If Senator Mulcahy could speak with the eloquence, force and intelligence of the honorable member who did speak for 9 hours -and 40 minutes we should all_be delighted to listen to him. We were told that the Capital site question would be settled. Where is the Capital site, and when is the question to be settled? On this question again the Government speak with two voices. New South Wales is pulling one way and Victoria another, and the consequence is that there is not the slightest hope that the Capital site question will be settled during the present session. The present Prime Minister travelled throughout the eastern portion of the continent crying out about th( necessity for populating the empty North, He was panting to acquire the Northern Territory for the Commonwealth that he might people it with thousands and tens of thousands of defenders from Europe. What anxiety is shown about that question now?
– The Bill for the acquisition of the Northern Territory is now before the other House.
– That is about all that can be said for it. There is no business in it. It is now proposed that we shall adjourn for nearly a fortnight. We shall be kicking our heels in Melbourne doing nothing for ten days, in order that representatives of the Government may meet a certain number of electors of the Commonwealth, and discuss with them the financial position ‘ as between the States and the Commonwealth. The Government which propose to do that sort of thing are deliberately insulting the Commonwealth Parliament. Why was this Parliament instituted? Was it not to deal with the affairs of the Federation ? Why, then, should ordinary electors of the various States - even if they do happen to be Premiers for the time being - be allowed te come between the Government and Parliament? Yet the Government propose this foolish waste of time for purpose? which cannot be fruitful, seeing that the ultimate settlement of all the question^ which will be dealt with by the Con-“ ference rests with the people of the Commonwealth and with this Parliament. I appeal to the Vice-President of the Executive Council to push business through a little faster, and not to hide himself behind the excuse that the Labour party is endeavouring to block business. We have had no serious business presented to us during the present session. There is not a single measure on the notice-paper which is not more or less of a stop-gap.
– I am glad to hear the honorable senator’s opinion of the Seamen’sCompensation Bill.
– That measure is all right, but it does not deal with a question of first-rate importance.
– It is of first-rate importance to the seamen.
– I am objecting to the Vice-President of the Executive Council not pushing that measure through tonight, thus enabling us to proceed with other business to-morrow. But I suppose that to-morrow will be used up in a further consideration of that measure.
– I am not underestimating the honorable senator’s capacity for wasting time, and consequently I am looking forward hopefully to tomorrow.
– I have not attempted to waste time to-night. For hours I sat in my seat patiently listening to tweedledum and tweedledee, hoping that every moment would bring a division. But instead of a division we have a motion for an adjournment. It has become very clear to me that the Government do not intend to do much this session. They intend to throw the blame for a barren session on the shoulders of the Opposition.
-The right shoulders.
– Why, the honorable senator has made about a hundred speeches to-night. There is no more constant interjector. The pity is that his interjections are so rarely intelligible. Nobody can tell what he is driving at. If he would just bottle them up, and fire them off in the form of a speech, they would be very much more edifying to this Chamber. I do not wish to say any more, but I could not allow the opportunity to pass without protesting against this wicked waste of time on the part of the Government.
SenatorFindley. - They have the tired feeling already.
– It appears to me that they are more anxious to dawdle along in the hope that nothing will be done than they are to expedite business which is urgently needed in the highest interests of the country.
– There is nobody more surprised than I am at the action of the Vice-President of the Executive Council in moving the adjournment of the Senate at this early hour of the evening. When he moved to report progress on the Seamen’s Compensation Bill only a few minutes ago, I was just about to speak, but I waived my right to do so. Little did I think that he intended to follow up his motion to report progress with another motion for the adjournment of the Senate. A few moments ago he interjected that he had submitted the latter proposal by arrangement with honorable members upon this side of the Chamber.
– I did not say anything about an arrangement.
– Do not get angry.
– Let the honorable senator pick his words with some regard to truth.
– Surely the VicePresident of the Executive Council suggested that there was some connexion between the motion for adjournment and consideration for the Opposition. I see by the notice-paper that the order of the day following the Seamen’s ‘Compensation Bill is the Navigation Bill. When the Vice-President of the Executive Council moved to report progress just now it was only twenty minutes to 10 o’clock. This is Wednesday evening, and usually we do not. adjourn on that day earlier than halfpast10 o’clock.
– We can make up for it to-morrow night.
– Sufficient for the day is the legislation thereof. When he moved to report progress this evening, I thought it was the intention of the VicePresident of the Executive Council to resume the consideration in Committee of clause 18 of the Navigation Bill. In that measure we have a veryhardy annual. It has confronted me ever since I became a member of the Senate. But that is no reason why it should not be tackled and disposed of. Upon the business-paper, which includes the Patents Bill, the Lighthouses Bill, the Audit Bill, the Post and
Telegraph Bill, the Seamen’s Compensation Bill, and the Navigation Bill, there is no more important measure than the last. For years our seamen have been crying out for legislation affecting their position, and for years this Parliament has been attempting to deal with it. Last session the Minister of Trade and Customs was evidently very anxious to push forward! this measure. Why then do we find it the sixth order of the day, instead of the first? I think that the .remaining portion of this evening ought to have been devoted to consideration of clause 18 of the Navigation Bill, with a view to advancing it another stage, and to showing the people of the Commonwealth that we are sincere in our determination to give Australian seamen that modicum of justice which has been so long denied them. I do hope that before the session closes this Bill will have become a Statute. With the assistance of another place, it could be made the most advanced piece of legislation of its kind in the British Dominions. Further, our seamen are waiting for it. Under these circumstances, I fail to understand why we should be asked to adjourn at half-past 9 o’clock. To my mind it is quite evident that there is another reason at the bottom of this motion for adjournment. I understand that to-morrow night in another place the Budget is to be delivered. It is common knowledge that the Prime Minister will afterwards ask the House of Representatives to adjourn for a week. The reason that he will advance in favour of the adoption of that course will be that a Conference of Premiers is about to be held in Melbourne. T believe that such Conferences ought to be held. It is right that ihe head’s of the various States should occasionally confer together, with a view to determining upon certain lines of action. But whilst I hold that view I do not see any reason why this Parliament should adjourn merely to consult their convenience. It was suggested by Mr. Moore, the Premier of Western Australia, that the Leaders of the Opposition in the various State Parliaments should also be admitted! to the forthcoming Premiers’ Conference. The Leader of the Labour party of Western Australia was about to leave for Melbourne as a delegate to the Premiers’ Conference, when - lo, and behold ! - the Premiers of the Eastern States said : “No; we will not have the Leaders of Oppositions as delegates.” It is a remarkable fact that the Leaders of the Opposition in the six State
Parliaments, and in the National Parliament of Australia, are also Leaders of the Labour party. Another striking fact is that in Tasmania, Queensland, Victoria, and South Australia, there has been a fusion of all kinds of parties against the Labour party. On that ground, the Premiers of the Eastern States object to the State Oppositions being represented at the Conference. Mr. Moore, the Premier of Western Aus.tralia, was quite willing that the Leaders of the Oppositions should be present, but he had to bow to the majority. The Prime Minister will, doubtless, say to-morrow that the reason why he asks the Federal Parliament to adjourn for a week is that one or two members of his Ministry must be present at the Premiers’ Conference. But I see no reason why the business of this Parliament should not proceed. Surely the other four Ministers in another place, and one of the two Ministers in the Senate could take charge. The Labour party in both branches of the- Legislature has been accused of a wicked waste of time. When the Fisher Government was dispossessed of office, the Deakin Ministry asked for a three weeks’ adjournment. To-morrow they will ask for another week. This means that one month of the present short session has been consumed in adjournments. Probably by the end of November, or the beginning of December, the session will end. Ministers will then go to the people, and proclaim from the house-tops that the Labour party has been responsible for a waste of time. I wish to place the amount of time occupied in debate by the Labour party in the scale against these adjournments. Surely it would have been better for the Vice-President of the Executive Council to proceed with the next Order of . the Day, rather than ask for an adjournment at half-past 9.
– Why could we not have finished the Bill which we had in hand ?
– Exactly ; but when I wished to speak, “the Vice-President of the Executive Council requested me to sit down so that progress might be reported. Had I known that it was his intention to move the adjournment immediately afterwards, I should not have agreed to the suggestion. I shall vote against the adjournment, to enter my protest against the action of the representatives of the Government, .who are constantly decrying the Labour party for wasting time in a wicked manner; although, if there has been anything wicked in this respect, Ministers are the sinners, and we are the sufferers.
– Had I dreamt for a moment that the Vice-President of the Executive Council intended to move the adjournment, I should have taken up precisely the same attitude as Senator Needham has indicated. The clause of the Seamen’s Compensation Bill which we were discussing was evidently of a complicated character. It was suggested by Senator de Largie that the further consideration of the clause might be postponed, with the object of proceeding with the remainder of the Bill. The Vice-President of the Executive Council did not adopt that suggestion, because he had no intention of proceeding further with the measure tonight. There were several precedents for the course which Senator de Largie suggested. Several times clauses of Bills have been postponed, until other clauses were dealt with. Why the same course was not adopted as to the Seamen’s Compensation Bill is, to me, incomprehensible. The only inference I can dra> is that the action of the Prime Minister in accusing the Labour party of waste of time was simply an act of hypocrisy, because neither he nor his colleagues in the Government have any sincerity about business whatever. They constantly say that the cruel Labour Party have wickedly wasted the time of Parliament.
– Hear, hear ! I repeal that now.
– When the Prime Minister made that charge, he knew that he was paving the way for a proposal for a week’s adjournment. During the debate on the Address-in-Reply, I expressed the opinion that the Prime Minister had no intention of passing legislation during the present session.
– Does not the honorable senator think that there was a wicked waste of the ratepayers’ money for party purposes at the banquet at which the Prime Minister spoke?
– These banquets always entail a wicked waste of money, and I strongly protest against their being used by the Leader of the Government as opportunities for leading the people astray.
– It was an easy way of getting a cheap drink and a cheap feed, and for making political points.
– The Government have so far done nothing, though I admit that they have proposed a good many things. They intend to do nothing, and as an evidence of that intention here we are face to face with this singular position. The Bill with which we have been dealing to-night is undoubtedly an important one. It was being dealt with as fairly as such a complicated question could be dealt with. We had arrived at a position when I think the Minister, like every other honorable senator, was satisfied that he was not on absolutely sure ground. When a suggestion was made that the consideration of the provision should be postponed with a view to proceeding with the consideration of other important clauses in the measure, surely the representative of the Government, if he had been desirous of proceeding with business, would have proceeded with the Bill in the ordinary course, and when we had finished, although there might have been more contentious matters to deal with, we could have arrived at some agreement regarding the matter about which we are all evidently in disagreement for the time being. I candidly confess that the clause under consideration is one about which I had no complaint to make other than this-
– Order. The honorable senator will not be in order in alluding to the debate in Committee.
– The action of the Minister shows clearly that the Government are not sincere in their profession of a desire to get on with the business of the country. When they go out to tell the people of Australia fairy tales such as those they tell through the medium of Lord Mayors’ banquets they ought to be prepared to come back to the Senate with a policy and to go forward all the time. They ought not totrot down to Swanston-street, tell their little fairy tale, come back to the Senate and say at half-past nine o’clock, “ We have done with this business for to-night, and in the course of a few more hours we shall be asking you to dispense with all other business for a week or a fortnight,” in order, I suppose, that the Government may quietly bring down and dispose of their Budget, deal with the business before the Senate, and finally close the session with no work done. On this occasion I am prepared to enter my protest by voting against the motion for adjournment.
.- If any justification were required for the statement’ as to a wicked waste of time taking place, it has been furnished for the last hour when I and others have been hoping that we might be allowed reasonable time in which to consider the business which is to come on to-morrow. Senator de Largie. - Gag.
– I do not want to gag the honorable senator.
– Why did the honorable senator put the business on the noticepaper ?
– I am amused at the concentrated impertinence which the honorable senator puts into his interjection.
– Order. The Minister is out of order in using that term.
– I withdraw the words, sir. I proposed an adjournment this evening after what has been admitted by honorable senators to have been a debate on a complicated question, and after suggestions had been made to me from all round the chamber, both openly and privately, to adjourn with a view to get the draftsman to see whether means could not be devised to meet the obvious wish of the Committee.
– Why did not the Minister go on with other business ?
– I moved the adjournment of the Senate at the request of more senators on the Opposition side than on this side. In fact, Senator Mulcahy was the only senator on this side who asked me to adjourn, but several honorable senators on the other side made the request. When I find the di3- cussion on the motion taking this turn it is an indication to me of how much sincerity, honesty, and truth I must expect to find in the requests which in future come from the other side.
– Who requested the honorable senator to adjourn?
– That is my concern.
– The honorable senator is addressing the Senate through the Chair.
– I ask the honorable senator not to interject any more.
– But the Minister is making aaccusations, sir.
– I have not yet started to make accusations, though I may be tempted to do so if the honorable senator will not allow me to speak for five minutes without interruption. I was referring to the treatment which has been meted out to me. . After taking a step which I thought was consonant with the wishes of the honorable senators on the Opposition side, as conveyed !by their request to me, with .1 view to try to solve a problem which is puzzling us all, I have reasonable ground for protesting against their conduct to-night.
– Who made the request ?
– That is my concern. I do not intend to answer individual senators, who have stood here for an hour hectoring me.
– I do not believe that such a request was made.
– Order ! I ask the honorable senator not to interject again. He must see that his last interjection is offensive, and I ask him to. withdraw it.
– I withdraw it, sir.
– The interjection is not more offensive than is characteristic of the honorable senator. I can quite understand that he will not believe my statement. Honorable senators who are such utter strangers to truth are not prepared to believe that others can speak the truth.
– Mr. President, ought not the last remark of. the Minister to be withdrawn ?
– I ask the Minister to withdraw the statement, but I point out to honorable senators that with a constant fire of interjections, especially when they are of an. offensive character, it is rather hard for any speaker to restrain himself.
– I withdraw the remark, sir, but I hardly think that 30U heard the words properly. There was. nothing offensive about them. I merely made a general statement. I am annoyed because I consider that I have not been treated honestly and fairly by the Opposition tonight. There are honorable senators absent who will confirm to-morrow what I say now.
– They can only speak for themselves.
– That is perfectly true, but in all parliamentary proceedings carried on by decent men there is an understanding that when a number of men from one side seek lo solve a problem which is common to all, and put forward a request for an adjournment of the question, it is not always regarded as an offence for the Leader of the Chamber . to try to meet them. I decided to ask the Senate to adjourn when I was brought face to face with a problem which I was not prepared on the spur ofthe moment to solve, and which nobody else was prepared to solve, in the hope that I might have time, with the help of the law officers, to see if a scheme could not be devised which would meet the view pressed upon me from all round the chamber. Jn the futureI shall be compelled to view with the utmost suspicion any requests or suggestions which come from the Opposition.
Question resolved in the affirmative.
Senate adjourned at10.35p.m.
Cite as: Australia, Senate, Debates, 11 August 1909, viewed 22 October 2017, <http://historichansard.net/senate/1909/19090811_senate_3_50/>.