6th Parliament · 1st Session
The President took the chair at 11 a.m., and read prayers.
page 297
– I desire to ask the Minister of Defence whether the following cablegram in this morning’s Age has been brought under his notice : -
The important announcement is made that the Home Office has ordered the arrest of all Germans and Austro-Hnngarians in the United Kingdom who are between 17 and 45 years of age, and are therefore eligible for military service.
And if so, whether similar precautions have been taken to prevent spying by Germans in Australia ?
– I do not propose to state publicly what the Government are doing, but if the honorable senator will sec me I shall tell him.
page 297
The following papers were presented : -
Defence Act 1903-1912.- Regulations amen ded-Statutory Rules 1914, No. 140.
Lands Acquisition Act 1906 - Land acquired under, at Kyoglc, New South Wales, for Postal purposes.
page 297
– Is the Minister representing the Postmaster-General now in a position to answer the questions I put to him last week regarding the Bolgart mail contract?
– The Deputy Postmaster-General, Perth, has furnished the following answers: -
page 298
– Has the attention of the Minister of Defence been called to a telegram from Adelaide in to-day’s Age, in which Mr. Owen Smyth, D.S.O., is reported as having said -
I know as clearly as any man could know, without being in a position to prove it, that there is one man in South Australia who has given information to the Government of Berlin which was of value to it, and that man is in the employ of the Government of South Australia to-day.
Will the Minister make inquiries as to the truth of this statement, as it is a very serious one?
– My attention had not been called previously to the telegram, but I will see that inquiries are made in the direction suggested by the honorable senator.
page 298
– Will the Minister representing the Minister of Trade and Customs accelerate the speed of the Department with reference to laying on the table of the Library some papers which I asked for several days ago, but which up to the present I cannot get ? At the same time I beg to ask the Minister if he will issue an instruction that when honorable senators ask for papers of: any kind, expedition will be used by the Department in the production of them.
– I will bring the complaint of the honorable senator under the notice of the Department, and endea- vour to expedite the laying of papers on the table. They will be furnished as soon as possible.
page 298
New Steamer
asked the Minister representing the Postmaster-General, upon notice -
– The answers are -
page 298
Amendment of Constitution
asked the Minister representing the Prime Minister, upon notice -
Is it a fact -
In view of this decision, will the Govern ment expedite the passing through Parliament and the submission to the people of the referenda proposals, which, if carried, will enable this Parliament to endow the Arbitration Court with the necessary power?
– The Prime Minister has supplied the following answers : - 1. (a) The particular words referred to were not brought ‘under my notice, but very strong language was used in the press in regard to the matter.
and (c) Prolonged and costly litigation has taken place. The High Court has held there was no industrial dispute within the meaning of the Act.
page 298
Motion (by Senator Seating) agreed to-
That there be laid upon the table of the Library all correspondence and papers relative to the proposed establishment of a telephonic system for Flinders Island.
page 299
SecondReading.
– I move -
That this Bill be now read a second time.
The Bill does not in itself create any new offences. Most of the matters referred to in the Bill are already illegal at common law, and the desire is to bring them clearly into the form of a Statute, to make the statutory powers clear in regard to the proclamations which are issued from time to time. The Bill is retrospective, going back to the 4th August, the date of the declaration of war, in the case of His Majesty the Kaiser, and to the 12th August in the case of the Emperor of Austria and King of Hungary. The object is to prevent trading with the enemy in practically all forms, more particularly in regard to those matters in respect of which a proclamation has been issued, not only by the King of- the British Dominions, but also by the Governor-General of the Commonwealth. The Bill may be divided into two parts, the first in regard to what it seeks to prevent, and the second in regard to the powers which it is desired to confer upon the Minister of Trade and Customs. The penalties provided for illegal trading are very heavy, but prosecutions can only be initiated by the Attorney-General. In those cases which are summarily dealt with, fines may be imposed to the extent of £500, or twelve months’ imprisonment. In the case of a prosecution upon indictment, a fine of any amount, or imprisonment for not more than seven years, or both, may be imposed. The Bill contains the usual provisions in regard to the confiscation of either goods or money belonging to an individual or firm engaged in trading with the enemy. There are also given under it powers somewhat similar to, but perhaps a little more drastic than, those for which the Australian Industries Preservation Act provides in regard to the right of the ComptrollerGeneral, under a warrant issued by a justice of the peace, to inspect books in order to secure information, to put questions to any person who is in a position to give such information, and to search any premises for any information that he thinks will be usnfnl. Tn a of urgency it will be within the power of the Comptroller-General, by writing under his own hand, to authorize any person to take action immediately, and to dispense with the warrant of a justice of the peace. That procedure is intended to be used only in case of emergency. Clause 8 is one of the most important, and may be thought to be novel to this class of legislation, but it is embodied, I understand, in the Act passed by the British Parliament. It provides that in the event of any firm, company, or corporation being suspected of trading with the enemy, it shall be within the power of the Minister of Trade and Customs, through the Comptroller-General, practically to take possession of the business, trade, or industry concerned. If the carrying on of the industry, business, or trade is essential to the welfare of the Commonwealth, the Minister may put in control a manager, who will have all the power that a receiver has under the Insolvency Act. The clause also declares that the receiver, if authorized by the High Court, shall have power to borrow money for the purpose of continuing the trade or industry. The Court is empowered to make money so borrowed a first charge on the property - a charge having priority to any other debt or charge which may exist upon the business. The Court is given practically a free hand in regard to the costs and charges of any prosecution under the Act, the power being left entirely with it to determine how and by whom they shall be borne. I do not think I need say more, save that a request has been made that the Bill shall be viewed as a particularly urgent one, and that we should, therefore, do everything in our power to facilitate its passing.
– It is not my intention to delay the passing of this Bill, which the Minister has intimated is urgent, and as to the necessity for which I think we shall be agreed. It appears to have received prompt attention in another place, but I sincerely hope that, in our hurry topass it, we shall not - perpetrate any blunder so far as its drafting is concerned. I could have wished that it had been in our hands a little longer, so that we could have given to its provisions the very closest scrutiny; but we must accept the assurance of the Minister that they have been carefully drafted and revised. I am afraid that there is a great deal of misconception as to what, is meant by “trading with the enemy.” In many quarters a disposition is shown to refuse to take into consumption or to use goods of German origin. Many people refuse, for sentimental reasons, to use them; others do so because of a mistaken notion of patriotism, and many, again, avoid the use of such goods because they believe that by purchasing them they would be guilty of trading with the enemy. I. think that quite unconsciously a very great injustice is thus sometimes done to many of our fellow- Australians.
– There is no injustice in war time.
-We are not at war with our fellow-Australians. Let me cite an instance which will give emphasis to the point I wish to make. Part of the business of a firm or person in Australia - trading, it may be, in Sydney, where Senator McDougall resides - may consist of an agency for a certain line of German goods. It may be, for instance, an agency for German lager beer, which is very largely used by certain sections of the community. These agents have obtained the goods, and, in many cases, have paid cash against delivery. The money has already gone to the enemy in Germany, and our fellow-Australians have these goods in stock; but they find that there is a disposition on the part of certain persons to refuse to take them. Many goods of German origin stand in this position. It is not the Germans who will suffer; it is the local agents in Australia, who handed out their good solid cash for the goods months before the war broke out. These are the persons who suffer, and suffer at a particular juncture when, by reason of the patriotic prejudice against German goods, they are in the worst position of all. In refusing to use German goods already in Australia people in many cases are not inflicting hardship on the enemy. It is quite possible that even the Government, in connexion with the war, have been using goods of German origin. I do not say that they have actually paid the cash over to the enemy, or to any German firm, but in equipping our Expeditionary Forces, no doubt they have purchased goods from Australian agents for German manufacturers. I do not say that they have not done right. We have in the community certain goods which, although of German origin, have been paid for already by fellow Australians, and we ought to be careful to see that in the exercise of our patriotism, and because, perhaps, of a mistaken notion of patriotism, in regard to the use of German goods, we do not inflict injustice on fellow citizens. Wherever possible, we ought to avoid trading with the enemy, but the trading to which I have referred had already been commenced. This brings me to the question of the drafting of the Bill to which I have already alluded. When we go into Committee we may have some further explanation, but after a hurried glance at the measure it seems to me that we have jumped pretty considerably. For instance, in clause 3 it is provided that -
Any person who, during the continuance of the present state of war, trades or has, before the commencement of this Act, traded with the enemy, shall be guilty of an offence.
It may be that that does not apply merely to the continuance of the present war.
– That would be after the’ 4th August.
– It may be that it goes beyond the 4th August. I hope that the Bill will receive our sympathetic, earnest, and urgent consideration, and that its principles will be embodied, as early as possible, in the statute-book of the Commonwealth. At the same time, it behoves us to carefully scan its provisions, and I could have wished that we had had the Bill in our hands a little earlier, so that we might have scrutinized every word of it.
. - I agree with much of what has been said by Senator Keating. I think that, unless this measure is very carefully administered, serious injustice may be done to our own people. No doubt, at the present moment there is in Australia a strong feeling against Germany in every shape and form, but we ought not to forget the fact that only two or three months ago we were glad to have Germany as a customer for our products, and, on the other hand, we were glad to purchase German commodities. “While we were sending to Germany before the war wool and wheat, and other Australian products, so the German people were sending their products to Australia. No doubt many articles of German origin, which were purchased before the war in all good faith, and paid for by people in Australia, are on sale to-day, and any attempt on the part of the Government to prevent their sale would not be penalizing the German manufacturers, but would be penalizing our own people, who imported those goods.
– There is no attempt in this Bill to do that.
– -I can quite understand that a number of local people are attempting to make a few shillings out of the present circumstances. They desire to create a feeling against German commodities, so that their own commodities may have a freer market.
– Are you speaking of rival traders?
– Yes. Nor can I sympathize very much with the sudden spasm of commercial virtue which has seized Australia. We ought to have known long ago that Germany was our enemy, and was building up an army and navy to tear down the British Empire.
– The member of the British Legislature who wrote the book Made in Germany “ gave us fair warning.
– We should, as has been suggested by many legislators, have passed a Tariff which would have enabled a number of the articles we were importing from Germany to be manufactured in Australia. We were sending to the people of Germany Wool which ought to have been turned into manufactures in Australia, and we were sending them other commodities which ought to have been dealt with in Australia, if the people and legislators of Australia had been wise enough to take time by the forelock. But now the war has broken out, a sudden stoppage of intercourse has, very properly, I think, taken place. Certainly, any man who trades knowingly with the enemy under present circumstances ought to be punished, but a person may unwittingly trade with the enemy. What would the Government do in a case like that? Would a man who dealt with the enemy without knowing it come under this law?
– Certainly, he would come under the law, but he might not be prosecuted.
– There are a hundred ways in which a man might unwittingly trade with the enemy.
An Honorable Senator. - Through ignorance of the law.
– It might not be through ignorance of the law, but through ignorance of fact.
– That is what I am referring to. A man may know nothing whatever of the origin of the goods he is importing, or of the destination of goods he is sending away. Suppose the German Government send American agents to Australia to buy wool and wheat, ostensibly for America, but really for consumption in Germany. What are our people to do in such circumstances? Must they refuse to sell to the American buyer, or will they demand a warrant from the buyer that the goods are not ultimately to go to Germany?
– In the case of foodstuffs, they would certainly require evidence that the goods were not going to Germany.
– Americans want our wool and meat, and it is possible that goods purchased in Australia may be sent to Germany through America.
– That is not preventable.
– I do not know whether it is or not, but wool may be sold to American buyers, although its ultimate destination may be Germany.
– That would not be trading with the enemy.
– That is what I desire to know. In any case, I suppose a measure of this sort is necessary, but care should be taken that no injustice is done by means of it to our own people.
– I am afraid we shall have to take this Bill very much on trust. The fact that we did not have copies of it until we came into the chamber prevented me from glancing over the measure, and, as I understand the Minister desires to have it passed as soon as possible, it means that we shall have to accept the Bill in good faith. I do not know if that was altogether necessary. I think we might have had the Bill sooner. It might have been put into our hands when it passed another Chamber. I hope that if another measure of this character should be necessary the Minister will take the precaution to let us have it a little time before we have to consider it. It is not desirable that nearly the whole of the members of the Senate should be able to say that they are accepting a Bill without any knowledge of it.
– The delay was owing to the Bill having been amended in another place.
– No doubt there was some reason for it. As to the objects of the measure, it is hard, in times like this, to know what is the best thing to do, because, as Senator Stewart pointed out, only a few months ago we were endeavouring to increase our trade with these very people. We were actually sending agents to Germany to canvass trade. I well remember even the present High Commissioner sending bulletins to Australia describing his great efforts in Germany to increase the trade of the Commonwealth with that country. I remember also the Agent-General for Western Australia referring to the great things which had been done for Western Australian products in the Hamburg market. We have had reports from almost every Agent-General in London that their efforts in the German market have been crowned with success, and the prospects of opening up a bigger and better meat market in Germany were improving. To-day we are legislating against that very trade.
– Only during the currency of the war.
– I hope that when the Tariff is brought forward, it will help us to do a great deal more of our own manufacturing, and that in the near future we shall have very little necessity to import. If that is done, legislation of this sort will be quite unnecessary, because, if there is one country more than another that can be made selfcontained, that country is Australia. We ought to make all our own products instead of having to bring them from Germany or any other country in the world.
– Generally speaking, special legislation of this character is objectionable, but in this case it is necessary. I rise to say that so far as Germans among us who are loyal to Britain are concerned, nothing should be done to harass them, but that, in the case of those who are prepared to put up and maintain wireless stations, or, as we are told has been done in the Old Country, prepare years beforehand for the placing of siege guns - to people of that kind this Bill should be made to apply.
– I remind the honorable senator that the measure does not apply to anything of that nature.
– It is rather amusing to hear Senator de Largie say that he hopes in the near future we shall have a protective Tariff that will enable us to be a self-contained nation. The honorable senator knows very well that the object of a protective Tariff is to get revenue.
– No. You do not understand what Protection is.
– I quite understand the effect of Protection. Senator de Largie knows, and all honorable senators know, that we depend upon the Customs House almost entirely for the national revenue.
– 1 ask the honorable senator not to refer to that subject. It has no relevancy to the Bill.
– I shall postpone my remarks upon the subject, though I should like to reply to Senator de Largie. In the meantime, I support the Bill, and trust that it will go through at the earliest possible moment.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clauses 1 and 2 agreed to.
Clause 3 -
The punishment for an offence against this suction shall be as follows: -
– Is the Minister satisfied that this clause is sufficiently clear? Do not the words “ any person who, during the continuance of the present state of war, trades or has, before the commencement of this Act, traded with the enemy, shall be guilty of an offence,” seem to suggest trading at any time before the commencement of the Act?
– They refer to trading since the commencement of the war.
– The words are, “ any person who has before the commencement of this Act traded with the enemy shall be guilty.” Does the Minister think that these words are sufficiently clear ?
– There could be no enemy before the issue of the proclamation of war.
– It would be better to use the words “ any person who, during the continuance of the present war, trades, or has traded, with the enemy.” Then there would be no doubt. The words “ during the continuance of the war “ would cover everything. The clause is now open to the interpretation that it applies to any person who has traded with the enemy at any time before the commencement of the Act, or of the war itself.
– The Government have condoned a very large number of cases of trading with the enemy. The prize ships that arrived in Australia from Germany did not bring goods solely of German origin. A large quantity of the goods in those ships was purchased in England and transhipped to Hamburg, and then put in German bottoms, because in that way they could be brought to Australia at less cost to the consignees. Yet the Government have put prize crews on those ships, and allowed the goods to be delivered to the consignees in Australia.
– Are you certain of that statement?
– Absolutely certain. The manifests of the ships show that a lot of British goods were sent here in German bottoms; and the Commonwealth Government have put prize crews on those ships to shift them from port to port in Australia, and thus allow the delivery of the goods since the outbreak of the war.
– But the goods were not bought since the outbreak of the war.
– That is so; but the payment of freight is just as much trading as is the buying of goods. The payment of freight is not made until the delivery of goods. There is therefore a good deal in the argument raised by Senator Keating.
– That could not have been avoided without doing a great injustice to the consignees.
– I do not know. They were trying to do injustice to British shipping by getting the goods out here at less cost in ships owned by foreigners, and every facility is being given for the delivery of those goods since the war has broken out. Furthermore, the ships have been allowed to proceed along the Australian coast with niggers who signed articles under the German flag for the purpose of delivering these German goods or English goods that were carried in German ships.
– Would you have prevented the delivery of those goods?
– I do not know; but honorable senators now propose to do exactly the same thing; that is, the Bill refers to the delivery of goods brought to Australia in German ships.
– That would be contrary to the Statute.
– If a German ship succeeded in running the blockade from Germany to Australia to-day, we would take her as a prize ship, and would still deliver the goods to the consignees. The whole matter needs a good deal of consideration, and I am inclined to believe with Senator Keating that we can cover everything without retaining the words “ has before the commencement of this Act.”
.- The matter raised by Senator Guthrie comes under my Department. The ships captured from the German mercantile marine had in all cases left Germany, and the goods had been placed in them, prior to the outbreak of the war. As the vessels were either captured in our ports or when outward bound from our ports with Australian cargo destined for places overseas, it was obviously not in the interests of Australia that they should be allowed to remain in our ports and rust; and the Government determined to put them to use. But in order to do so it was necessary to dispose of the . cargo, because leaving the cargo in the holds or dumping it into the sea would be useless. The obvious thing to do was to take the cargo to where it was consigned - the action was not trading with the enemy, seeing that the cargo had been put on the ships before the war broke out or was thought of, at any rate, by the traders - but in order to do so steps had to be taken to provide the ships with crews, but not German crews; in all cases British crews were placed in them. The officers and crews have been placed on board through the Naval Board, and the vessels are being taken from port to port, and the cargoes discharged at the cost of the consignees.
– What has become of the original crews?
– They, with the officers, are now in prisons in Australia.
– And some of them are being paid £2 and £3 per week !
– Like many other wild rumours, that mentioned by the honorable senator is absolutely without foundation. These men are merely being detained by the Government, and are receiving no pay whatever.
– What is being paid for some of the officers ?
– It is costing 30s.. per week to keep each of the officers, and that is the only payment being made on their behalf. Honorable senators will seethat there was no trading with the enemy such as contemplated by the Bill, because the goods were purchased before the outbreak of war, and we simply took a commonsense way of making use of the ships,, instead of allowing them to rust in our harbors.
– I ask Senator Keating not to press his suggested amendment unless he has some real and urgent reason, not as yet apparent to most of us. If we make an amendment it will mean that the Bill will have to be returned toanother place, which is not at present sitting ; and I might point out that the legislation is very much required by the Defence Department. Clause 2, which wehave already adopted, clearly states that the Bill commences on 4th August, whenthe declaration of war was made, and will cease when a proclamation is issued by the Governor-General that the war hasended. This Bill does not create any new offences; any offences committed under this Bill since the declaration of the warare already offences under the common law. As a matter of fact, the Bill is merely to make matters clear and definite in statutory form.
– Sub-clause 1 of clause 3, so far from making the meaning any clearer, makes it more ambiguous.
– The Bill does not make any individual or firm liable for any act which is not already an offenceunder common law, and it would, I think, be remarkable if we could not accept the drafting by the Defence Department,, whose only desire is to make the position clear.
– I am not submitting any amendment, but merely drawing attention to the faulty wording, which, in my opinion, only makes the clause obscure; indeed, it might be contended that the clause does purport to go beyond the common law. The two offences defined are trading with the enemy, or having,, before the commencement of the Bill, so traded; and it is quite arguable that,. under the clause, a person might be liable who had at any time, irrespective of the war, traded with the enemy.
– How can there be trading with the “ enemy “ before the war?
– The term, I take it, means the body or community which is at present the enemy. “When it is necessary to resort to such a fine-spun and nice argument as that the “ enemy “ now was not the “ enemy “ at the time when the trading was done, it shows that the clause is open to criticism. However, as the Minister does not seem disposed to ^accept any amendment, I shall do nothing further, and I take it that his present attitude is a consequence of the urgency of the matter, and the fact that the other House is not sitting to-day. I content myself with drawing attention to the point.
Clause agreed to.
Clauses 4 to 8 agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Standing Orders suspended, and Bill read a third time.
page 305
In Committee (Consideration resumed from 22nd October, vide page 297) :
Clause 50 (Acts of bankruptcy).
– I ask the Minister to postpone this clause, or to give me an assurance that an opportunity will be afforded to reconsider it. It is my intention to ask the Committee to consider an amendment, the effect of which would be to incorporate with this clause the provisions of section 64 of the Bankruptcy Act of South Australia. I hope by Wednesday next to be in a position to have the amendment I intend to submit circulated. The effect of section 64 of the Bankruptcy Act of South Australia is to make it compulsory in all cases for a debtor to meet his creditors, and is to extend to them a considerable amount of power to direct as to how an estate is to be disposed of. The creditors, realizing the value of an estate, large or small, may often deal in a comparatively summary and expeditious way with the estate rather than subject it to the more complicated processes involved in sequestration or assignment. Creditors and debtors, by putting their heads together, are often able to bring an insolvent estate out with the best results to both. This is a striking provision of the South Australian law, and one which I think ought to be a feature of this Bill. It is in order that honorable senators may have an opportunity to consider the advisability of adopting such a provision in this Bill that I make my request.
.- I regard the honorable senator’s request as a reasonable one, but I wish to say that those responsible for drafting this Bill have endeavoured to keep separate the different portions of the measure, so as not to mix up with provisions referring to bankruptcy those dealing with composition or matters of arrangement. I quite recognise that in dealing with a non-party measure of this character, every opportunity for full consideration should be given to honorable senators. Senator Keating might allow the clause to go through in its present form, and, if he cannot see his way clear to submit his proposal for amendment on some later clauses, or in some other part of the Bill, I shall be prepared to give an opportunity for the consideration of any reasonable proposition which he has to submit to the Committee.
– I made my request in order that between now and next Wednesday the officers of the Department concerned with the drafting of the measure may have an opportunity to consider section 64 of the South Australian Act, its applicability to this Bill, and to this part of the Bill. I understand from what the Minister has said that it is the desire of the Government that the Bill should in some respects resemble a ship - that it should be a complete Bill, but with watertight compartments.
– That is the idea.
Clause agreed to.
Clauses 51 and 52 agreed to.
Clause 53 -
At the hearing, the Court -
– I wish to direct attention to a departure in this clause, which is repeated in many other clauses of the Bill, from the form adopted in the Acts from which these provisions are taken, and a departure for which there appears to me to be no real necessity. For instance, the two paragraphs of sub-clause (2) are in the measures from which it is taken run into one, and, in my opinion, are thus made more clear.
– The form adopted in the Bill makes it much easier to read, and is found better in practice.
– With all respect, I differ from the honorable senator. I have gone very carefully through the Bill, and the original Acts upon which it is based, and I find that the original measures are not broken up in the way adopted in this Bill.
– This is the Commonwealth form of drafting, and is the much more modern and convenient form. It is being adopted everywhere now from the practice of the Commonwealth.
– It is not adopted in the South Australian Act. I have consulted the Insolvency Acts of Great Britain, South Australia, New South Wales, Queensland, and Victoria, and this is not the form adopted in any of them. It is a departure from the ordinary practice, and notice should be taken of it. Senator Keating alleges that it is the Kingstonian system, but it is not found in< the South Australian Act, which would bear the impress of Mr. Kingston’s mind, and if it emanated from him it must have a Kingstonian peculiarity that developed while he was in the House of Representatives.
– This form of drafting has thoroughly commended itself. It is far more clear than the old form, under which everything was run into a long, continuous paragraph. As an illustration, paragraph 2 sets out that at the hearing the Court (a) shall require proof of the debt, service of the petition, and act of bankruptcy; (b) if satisfied with the proof, may make a sequestration order. If all that were run into a long paragraph one would have to read and re-read it to make sure that he had omitted nothing, but as drafted it is simplicity and convenience itself.
Clause agreed to.
Clauses 54 to 61 agreed to.
Clause 62-
Where a sequestration order is made against a debtor, he shall make out and submit to the Official Receiver a statement of his affairs in the prescribed form, verified by affidavit, and showing -
The statement shall be submitted within the following times, namely : -
Provided that the Eegistrar may, in either case, for special reasons, extend the time.
– In accordance with notice, I move -
That the words “ submit to the Official Receiver “ be left out with a view to insert in lieu thereof the words “ file with the Registrar.”
I propose later in the same clause to move the insertion of a new paragraph as follows : - (2a) A copy of the statement verified by affidavit shall be furnished by the debtor to the Official Receiver within the time prescribed.
If those two amendments are carried, that will be the New South Wales practice. If a copy of the statement is given to the Official Receiver, as provided in the Bill, it does not necessarily become a permanent public document. One filed with the Registrar does. I do not propose that there shall be any payment or fee. My object is simply to have the statement placed on permanent public record with a permanent public official, which the Official -Receiver is not. In fact, he is not a member of the Public Service at all. What he may do with the statement I do not know, but under my proposal the Registrar would file it, the Official Receiver being furnished with a verified copy, so that he can go on with the sequestration of the estate. The practice I propose will be not only the New South Wales system, but also in consonance with the analogous practice in the other States.
– The Government are prepared to accept the words “ filed with “ in place of the words “ submit to,” but not the substitution of the Registrar for the Official Receiver. We propose to retain the Official Receiver in this and other clauses. I understand the honorable senator’s desire to follow the New South Wales practice, but in that State, as compared with the other States, the Registrar has extraordinary powers, and because of his extraordinary powers he is, as compared with the Registrars in the other States, an extraordinary official. The whole principle of this section of the Bill depends largely upon retaining the Official Receiver. It would be some time before we could have in the other States Registrars exercising the powers that the New South Wales Registrar exercises, and we have no present intention of appointing them. In the circumstances, I would ask the honorable senator not to press the amendment further than I have suggested.
– This is not a power to be exercised by the Registrar. The proposal is in the interests of the public, and does not mean any expense. If the clause is carried as it stands, what becomes of the debtor’s statement? Whose property is it?
– The property of the Court, because it is filed with an official of the Court.
– But there are a number of Official Receivers. One may live in Newcastle and several in Sydney. Will they keep these statements at their private offices, or at their homes, or where? All I ask is that the Registrar in Bankruptcy for the State shall receive every statement of a bankrupt, so that there shall be an official record of it. The amendment will not give the Registrar any power. But I submit that there ought to be one place in each State at which the affairs of John Jones, for example, who became bankrupt on 14th August, may be inspected for all time. Under the Bill in its present form a per son may desire years afterwards to ascertain who was the Official Receiver in a particular bankruptcy. He may then be told, “Oh, it was Mr. Wilson.” “Who was Mr. Wilson V he inquires, and he may be informed, “ Oh, Mr. Wilson and Mr. Cohen used to carry on business in Collins-street.” Upon further inquiry he may find that they have since dissolved partnership, and that Mr. Wilson has gone to New Zealand and cannot be found. Now, if a copy of the debtor’s statement was filed with the Registrar in Victoria, it would not matter what became of the Official Receiver. Surely we must have a permanent record of every bankruptcy. Even the debtor himself, years afterwards, may desire to consult his own statement.
.- As far as the Official Receiver is concerned, it is the intention of the Government that his duties shall partake of the character of the duties discharged by the Registrar in the New South Wales Court. I can quite understand that there may be an Official Receiver at certain places who may be an official to-day and a private individual to-morrow. But the idea underlying the Bill is that, wherever it be possible to do so, the Official Receiver shall be a permanent official.
– He is only an accredited practitioner of the community. The proposal of the Government is like allowing a bankrupt to file a statement of his affairs with his own solicitor.
– The honorable senator is confining himself too much to the New South Wales practice. He wishes the word “ Registrar “ to be substituted for the words “Official Receiver” wherever they appear. It is not our intention to agree to that proposal. We are quite prepared to provide that steps shall be taken to secure a permanent record. These can be taken just as well by the Receiving Officer as they can be by the Registrar. Indeed, it may be possible to make the Official Receiver the Registrar or vice versa. These things not only can, but will, be done in some cases. I hope that the honorable senator will allow the first portion of his amendment; to be carried, and that we shall then be able to take a division upon the other portion of it.
– I am not concerned with the wording of the amendment, so much as with its substance. I ask the VicePresident of the Executive Council to tell the Committee what are the responsibilities of Official Receivers in regard to the statements of debtors, and what guarantee the Bill provides that such^ statements shall become a permanent record, which may be referred to years afterwards.
– I can only tell the honorable senator that the Official Receiver will not only be a permanent officer, but also an officer of the Court.
– What is to prevent an Official Receiver ceasing to carry on business in a particular State? What is to prevent him removing his residence to another part of the world, or taking up another class of work which is inconsistent with that of an Official Receiver? There is nothing in this Bill which will have the effect of making his duties exclusive of everything else. As a matter of fact, an Official Receiver is not usually a man who carries on the business of Official Receiver exclusively. He is generally an accountant.
– There are States in which he does.
– There are States in which Official Receivers get sufficient work in that capacity to fully occupy their time. In New South Wales, for example, Mr. Borchard practically does all this class of work. Yet he is a private individual. Suppose that he chose to go back to Europe. What would become of all the records ? Another Official Receiver might be appointed, but he would have no right of succession. My amendment merely seeks to provide that two copies of the debtor’s statement shall be supplied, and that one of these shall be filed with the Registrar.
– It is the intention of the Bill to provide that wherever possible the Official Receiver should be a public officer.
– That may be the intention of the Government, but there is nothing in the Bill to indicate it.
– I can assure the honorable senator that it is our intention that the Official Receiver should be a permanent public officer. He may have other duties to discharge, and I recognise that in the Bill we propose to depart somewhat from the New South Wales practice and to approximatemore closely to the South Australian practice. The fact that in New South Wales an Official Receiver may be a private citizen has no bearing upon this clause, because under the Bill he will become a public official. If it be necessary to define the term “Official Receiver” to an extent which will make his duties and responsibilities clear, we should have no hesitation in doing that. I recognise that we are making an important departure from the New South Wales practice, and that New South Wales influence is naturally in favour of retaining the practice which has hitherto obtained there-
– It is a world-wide practice and not merely the practice in New South Wales.
– I think I could show- a very distinct difference betweenthe New South Wales and South Australian practice. I repeat that it is intended that the Official Receiver shall be; a public officer.
– I desire to point out to the VicePresident of the Executive Council that clause 13 evidently contemplates a distinct difference between the status of Official Receivers and that of other officers of the Court. It provides -
– A Registrar with nothing to register.
– It continues -
The Registrars, Deputy Registrars, and District Registrars shall act under the AttorneyGeneral, and shall also be officers of the Courts exercising jurisdiction in bankruptcy.
Surely these are the proper persons with whom to file records. The Official Receiver is to act under the general authority and direction of the Registrar, and is to be an officer of the Court. Clearly he will be a very subordinate officer. The Official Receiver appointed for any particular estate shall be the receiver for that estate. Evidently the Act contemplates the appointment of receivers who may deal with one estate alone, and their fixity of tenure is not in any way obvious, while the subordinate nature of their duties is very much, in evidence. I urge the serious consideration of the amendment.
– The object of the amendment is to put registration into the hands of a superior, not of a subordinate officer; to make it permanent, not temporary, and of a nature which will enable the facts to be seen, not hidden. On the reading of clause 13, if at a chance you selected the one person to whom registration should be given, it certainly would not be the Official Receiver; it would be the Registrar, who would have charge of documents. The receiver might have charge of goods, but the Registrar should have charge of the file ; he should hold the permanent records. There is prima facie evidence that the person who should have charge of the file is the Registrar, not the receiver. That follows the South Australian procedure.
.- I am sorry, but I cannot agree with honorable senators who seem to desire that an officer of more importance and of higher position than is necessary should be appointed to do certain work. The Bill was drafted by the law officers of the Crown, but yesterday, when we were considering the framing of regulations, these honorable senators insisted that the work should be done by the Justices of the High Court. The arguments now being put forward are almost identical with those that we heard yesterday. It is intended to make use of the permanent officers of the Court to a greater extent than they have hitherto been made use of.
– Is not the Registrar a permanent officer?
– Yes, and his duties will be properly defined. The Receiving Officer will act under him, and, where necessary, a file of records will be kept and will be in the possession of the Department.
– The clause does not say that documents will be preserved.
– I recognise the difficulty of getting away from a beaten track, and the desire, particularly in New South Wales, to preserve to the Registrar the extraordinary powers that he exercises there. I hope, however, that honorable senators will allow the clause to remain as it stands.
– It is the universal rule of Governments to stick by a Bill. They will have the whole Bill and nothing else. I am aware of that tendency, and allow for it. The Minister, by the arguments that he has advanced, confesses that he is tight in the mud. He is under a difficulty from which he does not know how to escape. Therefore, he can only say that there is a tendency on this side to try to defeat the spirit of the Bill. My contention is that the Registrar is the proper individual to hold and to file certain documents. Instead of these documents being given into the hands of the Registrar, where they would be secure, it is proposed that they shall be given into the hands of a receiver, a person having charge of goods; it is proposed that the documents relating to a bankruptcy shall be given into the charge of a subordinate instead of into the charge of a permanent officer. The Minister says that a temporary officer is to be made a permanent one, and, because he will be permanent, he must take charge of records. That means that files relating to bankruptcies will be kept in various offices, and scattered throughout the Commonwealth. If they were in the charge of superior officers such as Registrars, they would be kept together, and could be found when required. The Minister proposes to get over the difficulty by making an inferior officer a permanent appointment. I wonder that the Minister does not see that what is proposed would improve the Bill.
– Does the honorable senator say that these documents will not be taken care of?
– There is no provision for it.
– Senator Barker seems to be misled by the words “public officer.” I am an officer of the Supreme Court of Tasmania, and also of the High Court, and in the same sense an Official Receiver will be an officer of the Court. He will be in most cases an accountant, carrying on business either by himself or with a partner. This work will be done by persons carrying on the business of accountants, auditors, liquidators, &c. Those desirous of doing the work will apply to the Court to be appointed Official Receivers for the State in which they are carrying on business, and when bankruptcy estates are sequestrated, they will be selected in turn, perhaps as jurymen are chosen, and not because of any special fitness for the administration of any particular estate. “When such a man has made sufficient money to give up business, he may quit the country, and what will become of the records of the bankruptcies with which lie has been concerned?
– Does the honorable senator say that those records will be the private property of the Official Receiver ?
– I ask the Minister what will become of them; the Bill does not tell us. The Minister has given the most convincing reason for accepting the amendment. He says that the clause has been drawn by the law officers of the Crown; but has any one of those who took part in the work of the drafting had practical experience of. the working of the Bankruptcy law either . in a Court or in a practising solicitor’s office? This Bill was “first introduced to Parliament by the present AttorneyGeneral in December, 1912, at the end of a session, so that it might be circulated among those members of the community who are familiar with the working of the bankruptcy laws. It received wide circulation. As I said yesterday, the chambers of commerce, the chambers of manufactures, the Official Receivers, the liquidators, and the officers of the Courts of the various States, received copies. I took a considerable part in distributing the Bill in Tasmania. In June, 1913, the Associated Chambers of Commerce held a conference, and each chamber that was represented had been notified beforehand ihat the Bill was to be considered by a separate committee, to which it was asked to nominate a representative. That Committee consisted, as I stated yesterday, of men of the standing of Mr. Lemmon - than whom there is no greater authority in Victoria to-day as a private individual on the law of bankruptcy - Mr. Borchard, of Sydney, New South Wales; and Mr. Maclaughlin, of Adelaide, a practising solicitor of repute. I was on the Committee as representing Tasmania, and there were other men whose names I cannot think of at the moment. The Committee were absolutely unanimous on this matter, and their recommendation was -
That section 62 be altered so as to provide that a statement of the affairs of the debtor shall be filed with the Registrar, and a copy thereof furnished to the Official Receiver.
The idea of that recommendation i3 that, once a man goes bankrupt, it does not matter who his Official Receiver is he will have this statement for his guidance in dealing with the property of tha bankrupt, but apart from the Official Receiver who may be here to-day or gone tomorrow, with the Registrar shall be lodged or filed a copy. That is not in tha interests of the bankrupt or of the Registrar. It is not endowing the Registrar with any powers, but it is a safeguard to secure for the community a permanent record of all bankruptcies in the State. It does not matter who the Official Receiver may be in any particular case, he will have the statement; but there will also be on public record the registered statement. That is all that the two amendments in combination ask for. One does not want to know, perhaps some years afterwards, file mere fact that a man had his affairs sequestrated, but one desires to find out certain particulars. One wants to make a search as to the position of a firm in relation either to one’s own business or to some other matter, and, therefore, one has to go back through gazettes or other documents to find out who was the Official Receiver in the case. The Official Receiver may have ceased to carry on business, or he’ may be dead, or he may have quitted the State, or he may have gone into retirement; but oven if he is found he may not have the documents. So what is the position ? Should there not be, in the interests of the whole community, a statement on permanent record? There was no question by the Committee in regard to the matter, because it is the established practice. This was looked upon as purely an oversight on the part of the draftsman. It was not looked upon as the deliberate expression of any policy, because it is the negativing of any policy, if it is anything.
– This follows very closely the English practice.
– That may be so, but so far as Great Britain is concerned does the honorable senator say that the Bill which was passed last year-
– It is not an oversight, but a deliberate attempt to bring in the practice.
– I venture to say that it is an oversight, and that it is due to the fact that those who “drafted the provision in the first instance had not a familiar or working acquaintance with bankruptcy administration. “What Law officers were associated with the . drafting? Their experience, training, and working are totally different from that of a practising solicitor. Their training is different from that of the officers of the Courts. It is much more academic than is the practice of an ordinary common law clerk, or a managing clerk, in a solicitor’s office’. The members of the Committee were men who were practically acquainted with the working of the bankruptcy laws of the several States. They were selected for that reason, and there was no hesitation as to their recommendation. They did not recommend the alteration in their own interests, but in the interests of the community, they wanted continuity of office to secure the registration of these documents, which are important, not alone to the bankrupts, not alone to the creditors, but to the community as a whole. There must be a continuity of registration. Registration should not be scattered. If there are seven Official Receivers in the States, there should not be seven particular places where these documents are filed. Seeing that a man may change his residence or quit the State, is it not better that the Registrar should be left? What extra expense will it mean ? It will mean an extra copy; it might be a duplicated copy, but there should always be one on record. Surely it is not asking the Minister to depart from a vital principle of the Bill! It is not giving the Registrar any power, but it is protecting the public. I venture to say that there is not a legal practitioner in any part of Australia who has had any work in connexion with bankruptcy who would not advise this amendment to be inserted. There is not a man who is practising in any one of the States as an assignee, liquidator, accountant, or Official Receiver, who will not indorse the proposition that there shall be registration with a Registrar. It is not a question of conflict between the Registrar and the Receiver. The latter would prefer that the former should have for permanent use this particular document, and that he himself have a copy. There would then be one statement that could always be looked up. Suppose that the document which the Official Receiver had is lost, or mislaid by a clerk in his office, what responsibility will fall upon him ? But if it be lost, it can always be replaced by a copy from the original, which is lying securely with the Registrar in a public office. What does the cost amount to? Perhaps another1s. 6d. for making a typed copy. Surely to goodness we are not going to spoil the ship for the sake of a hap’orth of tar. My amendment only proposes that the document shall be with the Registrar, and it does not matter a straw what happens to the receiver of the document. If the document is required years afterwards, or if before the bankruptcy proceeding is concluded there is an allegation of fraud in connexion with the statement, the Court will have access to it. The Official Receiver will have his working copy - the one which gets tattered and torn and finger-stained-but the permanent copy will be with the Registrar, and may be consulted at any time by the Court, the Receiver himself, or any creditor. A creditor may be somewhat critical of the Official Receiver, and the feeling between the two may not be too good, and the creditor may wish to consult the statement. He may ask the Receiver for permission, and the latter may put obstacles in his way.
– We are providing that he cannot do so.
– Why cannot the document be lodged with the Registrar, as is done at the present time ?
– Your proposal is to substitute the Registrar for the Receiver.
– The proposition is so patent, I think, on the face of it, that I am really surprised to see the Minister opposing it.
– Do I understand that your contention is that the Registrar should have the document?
– Yes ; and the Receiver should have his copy. It is an addition ; it is a safeguard in the interests of the community as a whole.
– It is not interfering with the duties of either?
– No. It gives the Registrar not one whit of power that he does not possess. It takes away from the Receiver nothing; it leaves him as he is, hut it guarantees to the public the security of a continuous record of all bankruptcies with a permanent public officer.
.- There is no getting away from the terms of the amendment. I do not care what is in the mind of Senator Keating when he says that he only desires that a copy should be in the hands of the Registrar. When I agreed to accept the insertion of the words “ filed with “it was clearly my intention that the record should be there - not only that it should be there, but that it should be there to be inspected by creditors or others. Sub-clause 3 reads -
Any person stating in writing that he is a creditor of the bankrupt may, personally or by his agent, inspect the statement at all reasonable times.
What is the use of the honorable senator saying that there will be no filed statement when we deliberately provide in the same clause that a statement shall be made? I recognise the advantage which the honorable senator has in dealing with a measure of this kind, since he has discussed the Bill with representatives of the Chambers of Commerce, men whose character and capacity to deal with matters of this kind will not be questioned by any one. But the difference between them and the Government is that we are responsible for the Bill, whereas they are not. They may make recommendations which they believe to be in the public interest, but surely the Senate has also its responsibility in the matter. If, as Senator Keating has just urged, the question at issue was merely that of filing another paper, there would be no objection to his proposal. But this is the beginning of a series of amendments of which the honorable senator has given notice, with the object of inducing us to break away from the practice that we propose shall be followed in the Commonwealth - a well-beaten practice followed under the English Acts - and of substi tuting for it the New South Wales practice where the Registrar has extraordinary powers. It is for that reason that I resist his proposal. My opposition to it is strengthened when the honorable senator quite unconcernedly remarks that it is not open to me to say that any one experienced in bankruptcy law has participated in the drafting of the Bill. As a matter of fact, this Bill was referred to Judge Moule, one of the Victorian Judges in Bankruptcy, who is well qualified to express an opinion on the subject. It was submitted for his “consideration and approval, and, that being so, I think I can fairly claim that the Department has dealt carefully with the whole question, and has considered the Bill on its merits. I am not going to allow the new practice which we propose to be brought in under the Commonwealth law to be altered merely to allow the New South Wales practice to be adopted little by little. There must, of course, be a change. So far as the filing of these reports is concerned, they certainly will be filed ; it is our intention that they shall be filed and be accessible to the people. The Government will stand by the clause.
.- The Vice-President of the Executive Council has objected to the amendment because, in his opinion, it is the beginning of a series of amendments of which I have given notice, in which it is proposed to substitute “ Registrar “ for the words “ Official Receiver.” I wish to say at once that it has no relation whatever to those amendments. When we reach them I should be prepared to take the division on the first as the test of the whole. This amendment, however, does not affect the question of the powers or responsibilities of either the Official Receiver or the Registrar. It is only a question of filing and keeping a record. I do not wish the division on this amendment to be regarded as a test in respect of the others to which I have referred. It does not propose to give the Registrar any power which he does not at present exercise, nor does it take any away from the Official Receiver. The question at issue is simply one as to the keeping of an enduring record. It may be that the Government, as the Minister says, intend to do this or that; but the Bill does not express that intention, and I hold that it should not rest with the Government of the day. It should be our pur- pose to express in the Bill itself the intention of the Parliament irrespective of any change of Government that may take place. I ask that this amendment be treated as being entirely apart from the series of amendments to which the Vice-President of the Executive Council has referred. Let us dismiss from our minds altogether the question of individuals, and consider whether the Commonwealth should or should not have a permanent record of every bankruptcy in a fixed definite spot irrespective of the death of the Registrar, change of position, or anything of the kind.
– Before Senator Keating’s amendment is put I wish, by leave, to move -
That the words “ submit to,” lines 2 and 3, be left out, with a view to insert in lieu thereof the words “ file with.”
Amendment agreed to.
Amendment (by Senator Keating) put -
That the words “ the Official Receiver “ be left out with a view to insert in lieu thereof the words “ the Registrar.”
The Committee divided.
AYES: 8
NOES: 14
Majority . . 6
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
Amendment (by Senator Gardiner) agreed to -
That the word “ submitted,” line15, be left out with a view to insert in lieu thereof the word “filed.”
– I move-
That in sub-clause 3, line 2, after the word “may “-the following words be inserted: - “ without payment of any fee, and any other person on payment of the prescribed fee may.”
The right to inspect should not be confined to the creditors, but any person who is not a creditor should be required to pay a prescribed fee before being allowed to inspect.
– I have noted the honorable senator’s amendment, but I do not propose to go any further at the present stage. We think that the Sill is fairly liberal, and I do not think that there is any advantage to be gained by inserting an amendment giving any one the right to inspect on payment of a fee. This is largely a matter for proved creditors and debtors, and the Government as representative of the public interest.
Progress reported.
Sitting suspended from 12.58 to2.30 p.m.
page 313
Senator GARDINER (New South
Wales - Vice-President of the Executive Council) [2.30].- I move-
That this Bill be now read asecond time.
The powers asked for in this Bill were conferred on the Commonwealth Parliament by section 76 of the Constitution Act. Although we have exercised the power to make laws and confer original jurisdiction on the High Court we have not so far conferred Admiralty or maritime jurisdiction upon it. The object of this Bill is to remedy that lack. Jurisdiction will be exercised in two ways; firstly, and at all times, with regard to salvage, towage, and such like, and secondly, in relation to Prize Courts and prizes. In regard to the second, we have now Prize Courts sitting in six different States dealing with matters in six different ways, which at once shows to hon-: orable senators the necessity for having something like uniformity in procedure and decisions. It may be that in- similar cases distinctly different judgments are given. Some of the decisions already given are considered as being almost unworkable. I do not propose to speak at any length upon the Bill. It is a small measure, and went through another place very rapidly. Honorable senators who have been in this Parliament for any considerable period will be acquainted with its purpose. I do not ask honorable senators to travel at the rate of speed that was attained in another place, and if there are reasonable grounds for an adjournment we are prepared to grant it. However, I ask that the second-reading stage be carried, and that the measure be taken into Committee. The urgency is because of the need for dealing with prize . ships.
– I do not desire to move the suspension of the Standing Orders for the purpose of putting the Bill through all its stages.
Question resolved in the affirmative.
Bill read a second time, and reported without amendment; report adopted.
page 314
– I move-
That this Bill be now read a second time.
This is another of the measures that it has been my good fortune to bring forward in this Chamber. It also is a non-party measure that might just as well have been introduced by honorable senators opposite, whose treatment of me has been so generous that I sometimes feel the prick “of conscience as to whether, had the positions been reversed, I should have treated them in the same generous manner. The Bill deals with offences against the Commonwealth, and although, except in a few cases, it Creates no new offences, it gives the Commonwealth some controlling power which it now lacks. Although lack of power is at all times undesirable, it is particularly right that in matters of this kind the Commonwealth should be able to protect itself, for instance, against Customs frauds, and frauds in relation to the maternity allowance, and other Commonwealth matters of that kind which now have to be dealt with in the State Courts. There is in the latter portion of the Bill a matter - which makes its passage urgent and important. I refer to the provisions dealing with spies, and the supplying of information to a people with whom we are at war. This part of the Bill furnishes the only claim we have for asking for reasonably urgent treatment in regard to it. The Bill was dealt with in another place, and ran the gauntlet there. I ask honorable senators to treat it as the last Bill was dealt with, so that we may have the third reading on Wednesday next.
-Colonel Sir Albert Gould. - Will the Vice-President of the Executive Council consent to an adjournment of the debate)
– Yes.
Debate (on motion by Senator Lt.Colonel Sir Albert Gould), adjourned.
page 314
– I move -
That the Senate do now adjourn.
The Government are naturally very gratified at the progress made. The object in postponing the further consideration of Bills until next week is to give honorable senators an opportunity to consider them. On Wednesday we shall take, first, the Judiciary Bill, then the Crimes Bill, and, after that, the Bankruptcy Bill.
Question resolved in the affirmative.
Senate adjourned at 2.41 p.m.
Cite as: Australia, Senate, Debates, 23 October 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141023_senate_6_75/>.