6th Parliament · 1st Session
The President took the chair at 3 p.m., and read prayers.
– Last session, when the question of the national regiments, more particularly the wearing of kilts, was under consideration, I made an interjection which I find has caused considerable pain to Scottish people in Tasmania. When Senator Pearce was speaking in opposition to an order by the ex-Minister of Defence authorizing the wearing of kilts, he stated that the Scottish regiments had always acted most gallantly on the field of battle, and led the’ way. I, in a very jocular manner, and without any desire to detract from the splendid manner in which the Scottish regiments have always conducted themselves on the field of battle said, ‘ ‘ Away from the field.” Several letters have reached me from Tasmania in which regret has been expressed by Scottish people that I made the interjection. I have now to express extreme regret for having reflected, as my interjection did, on the courage of Scotchmen generally. I had not the slightest desire to detract in any way from the very gallant manner in which we know, and history tells us, Scotchmen have invariably conducted themselves on the field of battle. On the contrary, I have always entertained the highest possible respect for Scottish people in every capacity, and I regret very much that my jocular interjection was taken seriously, and has had the effect of hurting the feelings of many of my good Scotch friends.
– I desire to ascertain whether the attention of the Leader of the Government has bees called to an article in the Evening Journal, published in Adelaide, on the 16th November. I do not propose to read the article, but the writer alleges that Yacca gum is one of the principal ingredients in the manufacture of picric acid, which is being used very largely by Germany to destroy the Allies; and that during the six months ending July last something like 1,200 tons of this commodity were exported from South Australia, the greater portion of it going to Germany. I desire to ask whether the attention of the Leader of the Government here has been called to the. article, whether he knows anything of the facts alleged therein, and if they are true, whether he will endeavour to take steps to prevent the exportation of any more of this very dangerous article at the present time.
– I have not read the article, but I will have the facts stated by the honorable senator brought under the notice of Mr. Bell, the analyst in connexion with the Department, who can advise us on the question. If the facts are as alleged, undoubtedly steps will be taken to prevent the exportation of the article, at any rate to an enemy country.
– Has the Minister. of Defence noticed that Captain HughesOnslow - a gentleman who at one time was connected with the naval administration of the Commonwealth as second member of the Naval Board, and who, in my opinion, did not get a fair deal from the Government of the day - has been appointed to the command of the superDreadnought Revenge by the Imperial authorities t
– He has had his revenge.
– He is getting justice.
– Why did you not vote to give him what you call ‘ justice when Senator Long brought the matter forward?
– I did; I supported him right through.
– Captain. HughesOnslow is mighty lucky that there is a war on.
– Has the Minister noticed that the Imperial Government, have made such an appointment?
– Yes; I have noticed that interesting report.
– Is the Leader of the Government here in a position to Btate whether it is, or is not, a fact that the Administrator of Rabaul has re-appointed a large number of the German officials who were previously acting there under their own Government ?
– I have made inquiries, but a reply is not yet to hand.
– Can the Minister of Defence say whether it is a fact, as reported in the daily press, that Edward Edwards, managing director of the Continental Tyre Company, who in a letter expressed the wish that there were seventeen or eighteen Emdens operating on British merchant ships, is to be allowed to retain his captaincy in the. Australian Volunteer Automobile Corps?
– The commission referred to was cancelled at to-day’s Executive meeting.
– Can the Minister of Defence state if any provision is being made to meet the case of trainees who are serving their time as apprentices at various trades and attending trade schools at night? Many of the drills fall on the same night as the lads have to attend school, and the result is-
– Order ! the honorable senator must not argue the matter.
– I wish to give the reason for asking the question. The experience in our district makes it almost necessary to explain the reason for the question, but, if that is not permissible, I bow to your ruling.
– I do not lay it down as a ruling that an honorable senator cannot state the explanatory matter necessary to elucidate a question to enable the Minister to answer it, but the honorable senator was proceeding to argue why this or that should or should not be done. The object of a question is merely to elicit information, and it is not permissible to argue the matter.
– I wish to explain that, in consequence of certain information I have received to the effect that lads engaged in learning their trades at technical schools–
– Is the honorable senator in order in proceeding in this way?
– Following all recognised authorities on parliamentary procedure, I have laid it down as the invariable practice that questions must boasked only to elicit information. It is not permissible when putting a questionto make statements or argue or debate the matter in any way.
– When the Minister representing the Minister of Trade and Customs recently tabled, at my request, reports of the investigations of the trawler Endeavour, I asked him if he. would take steps to have copies supplied! to honorable senators, and he promised to do so. Has he taken such steps, and when may we expect copies?
– I regret if there has been any delay. I brought the matter before the Customs Department, but will renew my representations, and seethat it is attended to at once.
– Seeing that many of the permanent officers connected with the Instructional Staff have gone or are going with the Expeditionary Forces, and that necessity exists to make temporary promotions to fill the vacancies caused by their leaving the country, will the Minister of Defence see that the noncommissioned officers connected with the Instructional Staff are given a fair chance of obtaining temporary promotion? I wish, also to direct the Minister’s attention to’ Lord Kitchener’s and Sir John French’s action in this connexion, as shown in the following extract from a speech by Mr. Asquith reported in to-day’s Age: -
Lord Kitchener had drawn up a scheme for increasing the pay of junior officers, which the Treasury was considering. General Sir John French was freely utilizing his powers to promote non-commissioned officers and privates to commissions, in recognition of their gallantry and services in the field.
I bring this particularly under the notice of the Minister, in order that these men, on whom largely depends the success of our Defence Forces, may have an opportunity of gaining the promotion which, I understand, is likely to be extended to certain militia officers within the next few weeks.
– Our General Officer Commanding has the same power as that referred to by Mr. Asquith, and no doubt will exercise it, to promote to commissioned rank non-commissioned officers or even privates for service in the field ; but the honorable senator’s request that temporary promotions shall take place, for instructional purposes, not for services in the field, but for those remaining here, is quite a different matter. The question has been under consideration for some time, and I have to-day approved of a number -of senior non-commissioned officers being appointed temporarily to fill commissioned ranks.
– - Does that apply to the Navy, too!
– Is the Minister of Defence able to give me the information I asked for some time ago about the number of married men in the ranks of the first Expeditionary Force?
– No; it is impossible to get the information yet, as the nominal roll is not yet completed.
– Is the Minister representing the Postmaster-General aware that an order made by the Senate on 16th October last, for tabling a summary of the recommendations of the Postal Commission, indicating which have been acted upon and which have not, has not yet been returned? Will he take steps to expedite the return?
– A large amount of work is entailed in getting the return ready, but it will be laid on the table at the earliest possible moment.
– By leave of the Senate, I desire to make a personal explanation. Last Thursday, when I was speaking upon the Patents, Trade Marks and Designs Bill, I had occasion to refer to the extraordinary heat manifested in the consideration of the measure by certain members of the Opposition, particlarly by Senators Gould and Millen, and I identified both those gentlemen with the cause of countries outside Australia, particularly in connexion with their action at the time the Tariff was being discussed in this Chamber. In the official report of my remarks I find that there are two inaccuracies, of which Senator Millen is the author. The first is contained in the following interjection by him -
Who voted against the 5 per cent, duty on German mining machinery ?
As that question was obviously directed at me-
– The cap fitted.
– No. So far from the cap fitting, I find that the question of the imposition of a 5 per cent, duty on mining machinery did not arise at all. Therefore, when Senator Millen sought to identify me with the granting of a preference to Germany on that occasion he was guilty of a very big inaccuracy indeed. The items in which I was particularly interested when the Tariff was under review were high speed reciprocating engines and rock drills.
– Did the honorable senator vote for the lowest possible duty, or did he not?
– I considered the question of whether a duty should be levied upon those articles purely from the stand-point of what was best in the interests of the mining industry of this country. The second inaccuracy of which I complain was the statement by Senator Millen that -
Senator Lynch voted for free German machinery.
I did nothing of the kind. I no more voted in favour of the free admission of German machinery than I did in favour of the free admission of British or American machinery. When, therefore, the Leader of the Opposition attempts to identify me with an effort to favour Germany, the facts fail to support his contention. Still more do the after consequences of my action in this chamber disprove his statements. The items in which I was particularly interested when the Tariff was under review were dynamo electric machines and rock drills. In regard to the first I find from the records for 1913 that the imports from the United Kingdom of dynamos up to 200 h.p. were valued at £168,000, those from the United States at £131,000, and those from Germany at £48,000. The imports from the United Kingdom of dynamos in excess of 200 h.p. were valued at £56,000, those from America at £9,000, and those from Germany at £3,000. It will be seen, therefore, that, while the importation of all dynamos from the United States and the United Kingdom represented a total value of £299,000, that from Germany represented only £65,000. In the light of these figures it is quite clear that, although I endeavoured to place certain of these machines on the free list, Germany did not thereby derive very much advantage, inasmuch as she supplied only one-seventh of our importations into Australia during the past twelve months, which is a fair period upon which to build calculations. The next item on which I’ felt keenly was that of rock drills, and I voted to place them upon the free list. From the official records for last year I find that the imports under this heading from the United Kingdom were valued at £3,000, those from the United States at £28,000, and those from Germany - the country which I am alleged to have favoured - at £736. In other words, only one forty-second part of the importation of rock drills into the Commonwealth came from the country which, according to Senator Millen, I am supposed to favour. In regard to high-speed reciprocating engines, I felt particularly keen, and I do so to-day. But I learn that the total value of the imports under this heading from the United Kingdom last year was £28,000, whereas that from Germany was nil. Thus, if inquiry be made into the after consequences of my efforts in this chamber, it will be seen that, in respect of one of the two items upon which I felt keenly Germany derived no advantage whatever, whilst in respect of the other, her exportation to the Commonwealth represented only one-seventh of our imports. When the Tariff was under review, I felt strongly on two or three of these particular lines, and I feel just as strongly to-day. If similar circumstances arose to-morrow I would repeat the votes which I cast on a former occasion.
– The honorable senator is going a little beyond the limits of a personal explanation.
– I will conclude by remarking that the Tariff which was dealt with by this Parliament in 1907-8 included, as an integral part, a 5 per cent, preference to British manufacturers. That Tariff I supported. Senator Millen did not support it, neither did Senator
Gould, and the basis of my charge against them was that while the Tariff was being debated, they helped the side of the importing countries, including Germany, whereas my action was in the direction of encouraging Australia, on the ground that we can produce here the articles that we require.
– Seeing that it is becoming a practice for honorable senators to make personal explanations, I desire to say a few words in reply to the statement of Senator Lynch. It appears that I have done him some slight injustice so far as the naming of a specific duty is concerned. If, in speaking on the spur of the moment, I said that he voted for a particular duty, and my statement is inaccurate, I apologize at once. I do not remember saying whether he voted for a 5 per cent, duty or a7½ per cent. duty. The whole purport of my remarks was that, whilsi Senator Lynch charged Senator Gould and myself with being proGerman because we had voted for low duties, he himself had voted and fought tenaciously for the lowest possible duty on mining machinery, and his explanation to-day is a practical admission of that fact.
The following papers were presented : -
Invalid and Old-age Pensions Act 1908-1912.
Statement for twelve months ended 30th June, 1914.
Lands Acquisition Act 1906 -
Return of land disposed of at Geraldton, Queensland, and Port Augusta, South Australia.
Land acquired under, at -
Kalgoorlie, Western Australia - ForRailway purposes.
Wardell, New South Wales- For Postal purposes.
Weston, New South Wales - For Postal purposes.
Naval Powers - Return showing in detail naval expenditure.
Norfolk Island. - Memorandum by Secretary, Department of External Affairs.
Northern Territory. - Report of the Administrator for the year 1913.
Post and Telegraph Act 1901-1913- Regulations amended, &c. -
Statutory Rules 1914, Nos. 139, 144, 145, 146, 147.
War, European - Papers relating to the support offered by the Princes and Peoples of India.
– I ask the leave of the Senate to read a statement.
– I have laid on the table papers, relating to the support offered by the Princes and peoples of India in connexion with the war, that were presented to the Imperial Parliament by command of His Majesty, and, in connexion with them, I wish to make the following statement -
Public attention is desired to the paper No. 4 (pages 10 to 12) containing a r6sum6 of the proceedings of the Legislative Council of India. The sitting was remarkable for the unsolicited expressions of loyalty from the members. The Council unanimously carried the following resolution : -
The members of this Council, as voicing the feeling that animates the whole of the people of India, desire to give expression to their feelings of unswerving loyalty and enthusiastic devotion to their King-Emperor, and an assurance of their unflinching support to the British Government.
They desire, at the same time, to express the opinion that the people of India, in addition to the military assistance now being afforded by India to the Empire, would wish to share in the heavy financial burden now imposed by the war on the United Kingdom, and request the Government of India to take this view into consideration, and thus to demonstrate the unity of India with the Empire.
Mr. Bauer jee, supporting the resolution, used these words -
They desired to tell the world, the enemies of England, and all else whom it might concern, that their loyalty was not lip deep, but that behind the serried ranks of one of the finest armies of the world were the vast and multitudinous races and peoples of India bound together as one man.
The support of both Houses of the Imperial Parliament was necessary in order that the cost of the Indian expedition might be made a charge against Indian revenues. Mr. Asquith, in moving for that approval, said - “ I am sure we should not be giving expression to what every one of us feels if we did not couple with its acceptance an acknowledgment, sincere and heartfelt, of the spontaneous and splendid assistance which our great Dependency of India is giving us.”
– May I ask in connexion with the statement which has just been read by the Minister of Defence whether if the papers to which it refers are printed steps will be taken to have the covering statement printed with them?
– Certainly. The statement will be printed with the papers as it has been laid on the table with them.
– I desire to ask the
Vice-President of the Executive Council why it is that the report of the Administrator of the Northern Territory wasfurnished to the newspapers before being laid on the table of the Senate?
– It was first laid: on the table in another place.
– I ask the Minister of Defence whether it is possible to avoid compelling the Loongana, which for many years has been trading between, the mainland and Tasmania as a passenger steamer only, to take the south channel every time she makes a trip toLaunceston, and report to the patrol’ boat at the heads?
– Why should theLoongana be exempt?
– The honorable senator might just as well ask for a similarexemption in the case of boats going, into Newcastle.
– I do not consider the cases analogous at all.
– I suggest that the* honorable senator should make no reference to particular channels.
– If the Minister doesnot desire to answer the question publicly, I should be glad to obtain from him privately information on the subject.
– Very’ well.
asked the Minister of Defence, upon notice -
And that Chief-Surgeon Lippincott remarked, “ I believe I can say that no army was ever so carefully looked after in the matter of vaccination as ours;” and reported on 31st March, 1899, “ that all danger from the disease was over “ f
– The answers are -
asked the Minister representing the Minister of Home Affairs, upon notice -
– The answers are -
Motion (by Senator Russell) agreed to -
That leave be given to introduce a Bill for an Act to amend the Navigation Act 1912.
Motion (by Senator Pearce) agreed to -
That leave be given to introduce a Bill for an Act to provide for the granting of pensions in the case of members of the Defence Forces in the Commonwealth and members of the Imperial Reserve Forces, resident in Australia, killed or injured whilst employed in connexion with war-like operations.
Debate resumed from 13th November (vide page 627), on motion by Senator Pearce -
That this Bill be now read a second time.
– This measure, so far as the larger number of its provisions is concerned, has already made two appearances before this Chamber, and, regarding that portion of it, I do not propose to say anything at this juncture. There are certain additions which have been made, and to one or two of them I will address myself. The Bill, as the Minister very correctly stated the other day, is a very innocent and small instalment of the reforms which are necessary, but he hazarded the opinion, in which, I suppose, the Senate generally will concur, that the present is certainly no time to face those reforms, which undoubtedly the Department and the Forces are calling for. But there is one reform to which, seeing that it is dealt with incidentally in the Bill, I would like to impress on the attention of the Minister. I have already referred here to the fact that our organizations and plans, even our rules and regulations, are all designed for the defence of Australia from the attack of a raiding force. Both now and on a previous occasion Australia found that it was not called upon to meet the attack of an enemy approaching our shores, but, in common with the rest of the Empire, our contingents went out to fight in other countries. For an emergency of that kind we have no provision..
There is nothing either in our defence scheme, in the organization* of the Army itself, or in the provision for equipment, which contemplates a possibility of that kind. Yet it does seem to me inevitable that whenever the Empire is at war Australia will desire to take an active share in the war. That” being so, I do suggest that the Minister of Defence should address himself to the question of presenting to us some proposals by which, without maintaining in the time of peace a military force for service abroad, we should, at least, have the organization which would enable that force to be enrolled and sent forward at the earliest possible date. I intend to show later that in this Bill there has been some attempt made to provide for the circumstances which were brought about when we sent an Expeditionary Force abroad. I am sorry to say that the one effort which is being made in that direction seems to cut right across the bedrock of our defence system, but I will refer to that a little later. Before taking the proposals of the Bill as they come, I would like to direct the attention of the Minister to some remarks he made the other day commenting upon a brief speech delivered by the Leader of the Opposition in another place, and that was the time taken in the despatch of our Expeditionary Force. The Minister expressed the opinion, and it is a very sound one, that it was not advisable to send out ill-trained troops. I understood his argument to be on these lines : that, as our troops to go into the field must be trained, it is advisable to train them thoroughly before we send them abroad. I quite agree that it is necessary to have the troops trained, but let me point out that, if the Minister keeps then here till they are trained, there will still have to be an inevitable delay after they reach Europe. If, for instance, our troops were trained up to the last moment here, there would still have to be further delay when they reached Europe. That arises from the fact that a very large number of our troops are mounted, and even those which are infantry employ a- considerable number of horses, for infantry cannot move without horses. When the horses have completed a journey across the water extending from six weeks to two months, no horse will be in a position to do anything more than crawl . If the Minister refers to his officers, or cares to consult those who have had a very large experience in the shipment of horses to India, he will find that when horses are unshipped in India the practice is to turn them out into a paddock and to allow them to take such exercise as they please. It is not until two or three weeks have gone by in that way that the horses are compelled to take gentle exercise only, and it is possibly six weeks before an attempt is made to work them. Now, a trip to Europe is longer than a trip to India; therefore that delay must inevitably take place. I ask the Minister to ascertain if it is not possible, despite the desire to send our troops as well trained as possible, to reduce the time for which they are kept here, bearing in mind that in England, if that is to be the final destination, it will be necessary to delay matters until the horses can be got into condition, when the men could complete their training. If there is to be six weeks or two months of absence from the battlefield in the training camps at Home- and it does seem to me that period is rendered necessary by a consideration for the horses - we might reasonably make an effort to shorten the period of training here. If that can be done I am sure that the Minister will be the first to agree that the value of Australia’s help to the Empire will be considerably augmented by every day’s delay we can avoid in sending our troops away.
– You recognise that lighthorsemen, for the six weeks when the horses are not available, can get no training as lighthorsemen.
– The Minister knows perfectly well that a great portion of the training of lighthorsemen is infantry training, and that the horses -are used merely as a means of locomotion. Mounted riflemen are not cavalry, but merely infantry, who are mounted for the purpose of greater mobility. Now I turn to some of the proposals in the Bill. The first proposal to which I wish to direct attention is that which deals with the area, within which residents are liable to training. I see that the radius is 5 miles. I ask the Minister to consider whether that is not too long a distance to compel a boy to go to receive his training. . If a boy is outside the 5-miles limit he is exempt, but if he is living at a distance of 4- miles and 7-8ths he is liable to go to the nearest training centre. I think that the
Minister, if lie looks into this provision, will find that it represents, in a large number of cases, a very great hardship indeed.
– The provision says “ shall not exceed 5 miles.” In some areas we can make the distance 3 or 2 miles.
– At the same time the liability is on a resident within 5 miles to go in for ‘training.
– No; it all depends upon the area which is subsequently proclaimed.
– I am not saying that every boy will have to travel 5 miles. The Bill exempts from training boys who are more than 5 miles away from a training centre. Therefore it makes it obligatory for every boy within the 5 -miles radius to go into training.
– It makes every boy liable to training. Cases, not of 5 miles, but of 3 miles, came under my notice. I venture to say that the provision represents a very great hardship in the case of boys, who, after working all day, have to go home, get a wash and take a meal, and then to travel 3 miles to a training centre. I am speaking now as a firm believer in the system, and as one who wants to remove causes of friction, believing that its ultimate success will rest -entirely on the goodwill with which it is received by the people. Every year is bringing into the ranks of those who will make or unmake the system the boys who have passed through the course.
– I was proposing to limit that to 3 miles, and it was pointed out to me that in the regulations we -could do that, whereas-
– The Minister will find, if he makes an inquiry, that there have been complaints from parents whose circumstances were such as I have related. Until we can extend our Instructional Staff, and until the population increases sufficiently to enable us to have a larger number of corps, it seems to me that the distance provided by the Defence Act to-day is excessive, and as such represents a hardship on a very considerable number of our lads. There is a somewhat bigger evil still. I do not know whether the Minister’s attention has been drawn to the fact, but in shaping the areas when the system was first launched, and with the very natural desire to follow the rail ways for the purpose of transport, areas were included which were so far apart that, when the lads passed from the Cadets into the Citizen Forces, they went into camp without having been trained. The Minister has only to look over the records of the Liverpool camp incident to find ample confirmation of my statement. Along the north-western railway in New South Wales - that is the line which runs from Sydney to Narrabri and Moree - there is an area which includes quite a number of towns. In one town it was found, for various reasons, that only eight lads were liable for enrolment; in another town, thirteen lads ; and, in another town, twenty lads. These lads were scattered along miles of railway in order to make one regiment. The boys were not trained, because the limited number of instructors could not cover that extensive area. The boys had no chance of being put together ; they did not know their officers, nor did the officers know the boys. It was no wonder, therefore, that, when the lads got to camp, they, instead of being familiar with elementary training, were simply a raw mob, through no fault of their own. Here, again, I am not criticising, because I can quite understand that these areas were first designed, to a large extent, on paper. I am only directing attention to experience which ought to enable us, by readjusting the areas, to avoid the evil to which I have referred. There ought to be some limit. We ought to lay it down as a principle that we will not include within an area to which compulsory training applies any centre not sufficiently populous to give such a number of boys as would justify us in having a proper instructional officer there, or an officer to visit them at least with sufficient frequency. That is not the case to-day, and I trust that, now the Minister is on the matter of exemptions, he will look into it as early as possible. When I left office the initial steps had been taken to ascertain how far the areas might be revised. I hope the Minister will see the matter is not lost sight of, because it is putting the boys to considerable inconvenience, and doing no good to the Forces. The Minister, like myself, has been brought face to face with the constant and pressing difficulty of granting exemptions from the legal obligations imposed by the Defence Act. We have laid it down that everybody is liable to service, but no provision is made for granting exemptions other than those set out in the Act. I am sure the Minister, as I did, must have come across numberless instances where to compel boys to discharge their legal obligation would be, not only a hardship, but would possibly deprive them of their means of livelihood. We have no provision in the law to meet cases of that kind. I have already told the Senate that I had broken the law, and granted exemptions. There is no legal power to do so.
– That will be used in evidence against you.
– I am not at all frightened, because, if the cases were brought forward, there is not a man here who would not approve of exemptions being granted in the circumstances. It would be more correct to say, not that I broke the law, but that I refrained from enforcing it in certain cases. The Minister now comes forward with a proposal to legalize what has been done. The Bill leaves each case to be dealt with by the Minister upon its merits. I do not know whether Senator Pearce is looking for trouble, but the clause seems likely to open the flood-gates of trouble for him. I know nothing more undesirable or unfortunate for the Minister than to have representations made to him asking him to say that in this, that, or the other particular case he shall exempt a boy from his legal obligations. It would have been better to make an effort to put in the Act itself the circumstances and conditions which would entitle a boy to ask for exemption.
– I hope they will be exempted from solitary confinement.
– I was never responsible for imposing it. I think the Minister stated the matter very fairly here the other day.
– You were responsible for it in the same way that I was charged with being responsible for it - that a lad was put in solitary confinement while you were in office.
– And while the honorable senator was in office.
– And he was put there under a regulation which it happened to be the Minister’s luck to sign.
– -No: he was not.
– Well. I did not sign it.
– Was it only an accident that you did not sign it?
– It is very probable that, when the regulations were brought forward, whoever was in office would have signed them.
– The fortress regulations under which the boy was put in solitary confinement were probably signed by the first Minister of Defence. This was a purely fortress regulation, which was never intended to apply to Senior Cadets.
– At any rate, the Senior Cadets got the benefit of it. With regard to the proposal to throw on the Minister the responsibility of saying whether a boy shall or shall not carry out his obligations under the Defence Act, I know the difficulty, but still suggest that it would be better, not only for the Minister, but for those who may follow him, to give some indication of the class of cases where Parliament would approve of exemptions being granted.
– I think it would be impossible to set them out.
– In spite of that very confident interjection from an experienced parliamentarian, I refuse to believe that the brains of the Defence Department, plus the brains of the Law Department, cannot devise some provision which would enable Parliament toexpress its approval of the terms on which exemptions are to be granted.
– Take the son of a widow. The son of one widow may easily be able to carry out his training without hardship, but to the son of another it might be a real hardship.
– But there is no reason to say that the son of a widow should escape. The principle which guided me when in office was that, where the training, when carried out, would so interfere with the boy’s occupation as to destroy or reduce his means of livelihood, there was a sound reason to grant exemption; but; merely to say that a boy must be exempted because he is the son of a widow would be ridiculous, as the widow might be a millionairess. So far as one can judge the sentiment of the people of this country, there is no desire on their part to enforce the military obligations to the extent of destroying a boy’s means of livelihood. That should be the test. If a boy can discharge his duty under the Act without impairing his means of livelihood, he should be called upon to do so ; but, immediately it interferes with his means of livelihood, there is a reasonable ground for relaxing the obligation. It will be extremely difficult for the Minister, or any one else in his chair, to take on himself the responsibility of saying what boy shall or shall not be allowed to go free. It will depend, in that case, not altogether on the merits, but a good deal on the force and pertinacity with which the case may be pressed on Ministerial attention. One advocate a little more capable of putting a case in attractive form than another may secure an exemption, whilst an equally meritorious claim in less “successful hands would be refused. I am suggesting this course because of my own experience, and also because I believe it would save a good deal of the criticism ‘ which would otherwise be likely to arise to the effect that favoritism was being shown. If we can lay it down in the law itself, or devise some machinery by which we shall avoid placing on the shoulders of the Minister the difficult obligation of deciding on what must always be a very nice point, I am confident that it will give greater satisfaction to the community and relieve the Minister of a great deal of trouble. Tnere seems to be a proposition in the Bill that will cut across the very foundations of our defence system, which provides primarily and essentially for a Citizen Defence Force. We have sought to limit the Permanent Forces to a minimum, professing at least to desire only so many permanent soldiers and such permanent units as may be necessary for the efficiency of the Citizen Forces. They are, to a large extent, the handmaidens of the Citizen Army, but there seems to be a proposal in the Bill which is going to depart from, or, at any rate, widen the principle very considerably, and to a dangerous extent. By clause 7 it is proposed to introduce an amendment, the effect of which will be to enable the establishment, enlistment, and enrolment of permanent forces in time of war. I know of no reason why we should enlist permanent forces in time of war more than at any other time. To make them permanents units in time of war would mean continuing them as permanent units in time of peace.
– No; what is the Expeditionary Force but a permanent unit for the time of the war?
– That is like saying that this Chamber is sitting permanently for the day. If all the Minister desires is power to enrol for a specific period - say, the duration of a war or some reasonable period afterwards) - I have no objection to what is attempted, although my objection to the language still remains.
– Where do you get authority under . the Defence Act to raise expeditionary forces?
– I am not objecting to authority being obtained to*- enrol men for expeditionary forces. In fact I commenced by saying that some such authority was necessary ; but if that was the intention, these words go much beyond it. The present Act reads as follows: -
No permanent military forces shall be raised, maintained, or organized . except for Administrative and Instructional Staffs, including Staff Corps, Army Service, Medical, Veterinary, and Ordnance . Corps, Artillery, Fortress Engineers, and Submarine Mining Engineers. ‘
To that it is now proposed to add ‘.’ or except Expeditionary Forces in time of war.” If it is intended only by these words to take power to enrol for the definite purposes of a war and for some period afterwards, and that the expeditionary forces shall fall back into the ordinary citizen ranks afterwards, I am satisfied, although I still think the words employed are much too wide for that limited meaning. If that is the Minister’s intention, he and I are quite in accord as to what should be done. It is only a matter of determining the right wording to express it. I hope Australia will still adhere to the idea of a citizen army, but I fear there is a growing danger, unless something is done to check it, of that ideal being gradually abandoned and a permanent force being allowed to grow. We have already increased our permanent forces to twice the number that Lord Kitchener said would be sufficient. The extension of the permanent units has been gradually going on.
– Before the outbreak of the war?
– Yes. I do not know that since then there has been any room for expansion. The danger of our permanent forces growing undoubtedly exists. It is impossible to come in contact with leading permanent officers without finding that they naturally desire to have permanent soldiers.
– Lord Kitchener’s recommendation to give two full reliefs to certain army services has never yet been given effect to.
– That may be one case, but the Minister will not dispute that we have twice the number of permanent soldiers to-day that Lord Kitchener said was necessary.
– That is due entirely to the fact that we have organized two batteries of field artillery which he did not contemplate.
– The expansion runs through every branch. At any rate I want to direct attention to a growing danger.
– We ought to have more permanent soldiers than Lord Kitchener recommended.
-Colonel Sir Albert Gould. - I think so, too.
– I am sorry that my honorable friends disagree with me, but I still feel, from my limited experience of the Department, that unless the country keeps a careful eye upon it there will be a steady pressure on the part of permanent officers to gradually increase the permanent units, until, before we know where we are, instead of the permanent units being kept down to the minimum necessary to the efficiency of the citizen soldiers, they will become the major portion of the army. I am utterly opposed to that, and should not have spoken on the matter, especially at this time, unless I had felt that there was a grave danger involved.
– Do you think there is any danger of a military bureaucracy?
– If you will allow it to grow, “ Yes.” Of course, I have sufficient faith in the democracy of Australia to say that the moment it detects anything of that kind it will stamp upon it with both feet. But I wish to prevent it from growing up to be stamped upon. I do not say for a moment that the Department is tied down by Lord Kitchener’s recommendation ; but, as the result of knowledge which came to me in that Department, I have no hesitation in stating that there is a steady pressure from all quarters to augment the list of permanent soldiers throughout the Commonwealth. It seems to me that the proposal contained in clause 7 of this Bill indicates the effect of that pressure. I do hope that, before the measure emerges from Committee, the Minister will confer with his legal advisers, who are better able to express a definite opinion than I am as to whether or not the addition of the words “or except Expeditionary Forces in time of war,” would not permit of the creation of permanent units which would continue as permanent units after the war had ceased. Then it is proposed to include amongst the permanent corps for which authority is to be given, an aviation corps. I admit that the nucleus of a permanent aviation corps is desirable, but I do not think that, even in this matter, we canafford to ignore the pressure to which I have referred. I am quite sure that in the aviation corps we can supply the major proportion of our requirements from our Citizen Forces, if we are disposed to do that. I hope that the Minister will put his foot down upon anything other than the creation of the necessary nucleus-
– But the instructors must be permanent men.
– Yes. But there are some very elaborate proposals to be found in the Defence Department, one of which the Minister himself turned down before he quitted office on the last occasion. The professional soldier is always disposed to regard the citizen soldier as a somewhat secondary quantity, and is ever anxious to build up the permanent side of our Defence Force.
– Because he recognises the superiority of the Permanent Forces.
– I admit that superiority. But I would point out that Australia is not committed to the establishment of a Permanent Force.
– It will not have it.
– It may regret its decision yet.
– If we find that the training which our youths now undergo is not sufficient to make our Citizen Army efficient, let us call for greater sacrifices on the part of our citizen soldiers, and give them greater remuneration for their services. I am not convinced that we cannot provide the major portion of our requirements from our citizen soldiers. At any rate, we should endeavour to do so before multiplying the permanent lists of our soldiers. There is particular need for my remarks in regard to the aviation branch of our defence system. I do not suppose that, in the whole of a modern army, one can find any corps in which there is so much absolute idleness, and in which there is such a brief life, as there is for those who join the flying corps.
– In what sense does the honorable senator mean a “brief” life?
– I do not mean brief from the stand-point of mortality. But at Home it is recognised that, after a man has been in the flying corps four or five years, he is done. His nerve has gone. Consequently, I ask, What are we going to do with our airmen - if they be permanent men - when they cease to be of value as aviators? Hence the reason why we should call upon our citizen soldiers to discharge the duties appertaining to this corps.
– We must get men who can fly to teach those who cannot.
– That is obvious. I quite recognise that we must have a permanent Instructional Staff. But unless a very strong hand is kept on the military officers who make recommendations in these matters the aviation corps will be largely increased by permanent appointments. I know that the recommendations in the Department to-day would, if adopted, be sufficient to create a very elaborate corps indeed. In my opinion, that is quite unnecessary, and would be extremely costly. I am certain that if. the regulations are shaped attractively we can obtain from our citizen soldiers ample material to thoroughly equip our flying squadrons. Consequently, I trust that no effort will be made to take into the aviation corps any more than instructors and mechanics. My criticism is not prompted by any hostility to the Bill or to the Department. I have merely discharged what I conceive to be my duty. Certain facts have come to my knowledge, and I have formed certain opinions regarding them. If there be one question in our public life which calls for a free expression of opinion it is that of our Defence Forces. It was never more necessary that there should be a full understanding of what is going on in our Defence Department than it is now. There are other mutters in this Bill of a subordinate character, but which are nevertheless of some importance, to which I might refer, but it seems to me that they can with more advantage be discussed in Committee, and consequently I shall reserve my remarks until we reach that stage. I trust that the Minister will regard my efforts as being dictated by a desire to improve this measure, and not to destroy its usefulness or to harass his efforts in getting it passed into law.
Motion (by Senator Stewart) proposed -
That the debate be now adjourned.
Question put. The Senate divided. ‘
Majority . . . . 16
Question so resolved in the affirmative. Motion agreed to; debate adjourned.
In Committee (Consideration resumed from 11th November, vide page 448) :
Subject to this Act, the trustee may do all or any of the following things: -
Prove, rank, claim, and draw a dividend in respect of any debt due to> the bankrupt;
Exercise any powers the capacity to exercise which is vested in the trustee under this Act, and execute any powers of attorney, deeds, and other instruments for the purpose of carrying into effect the provisions of this Act;
Deal with any property to which the bankrupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with it;
Summon general meetings of the creditors for the purpose of ascertaining their wishes;
Use his own discretion in the manage ment of the estate and its distribution among the creditors;
Apply to the Court ‘in the prescribed manner for directions in any particular matter arising under the bankruptcy.
– The Committee is dealing now with the -clause giving powers to the trustee to manage a property. In accordance with notice, I move -
That the following new paragraph be inserted : -
Compromise any debt, not exceeding One hundred pounds, due to the bankrupt.
My object in submitting the amendment is to enable the trustee to deal with the property of the bankrupt expeditiously and efficiently. It is not suggested that there should be conferred upon him a general power to compromise any debt -due to the bankrupt. I suggest the limitation of the amount to £100. I trust the Minister will see his way to accept the amendment.
– Does the honorable senator, by the amendment, mean that the trustee should have the right to deal in any way he pleases with a debt due to the bankrupt?
– Yes, up to £100. Any amount exceeding that sum would be covered by the provisions of paragraph f of clause 97.
– Is there any special reason why the amount should be fixed at £100 ? That seems to me rather a large sum.
– The honorable member will see that a compromise could be effected, but for the amendment, in a case where the debt was over £100 only upon a resolution of a general meeting of creditors, or of the Committee of Inspection, or by application to the Court.
– The Government have no objection to the amendment.
Amendment agreed to.
– This clause deals with the powers which the trustee may exercise on his own motion, so to speak. The next clause in vests the trustee with powers which he can exercise only by permission of the creditors, the Committee of. Inspection, or the Court. It is very often a difficult matter to secure a meeting of creditors in an insolvent estate. In some cases many creditors wash their hands of the whole matter. I wish now to submit another amendment, of which I have given notice. I move -
That the following new paragraph be inserted : - (gg) Employ the bankrupt to do any busi ness necessary to carry on the business of the bankrupt.
It may happen that the insolvent estate is a very small one. It may be difficult for the trustee to secure a meeting of creditors, and it might be of advantage to the estate that the bankrupt should be employed at once as the man knowing most about the business. The amendment I now submit would permit the trustee, in order to carry on the estate in the interests of the creditors, to employ the bankrupt.
– Why specially mention the bankrupt? Why not say any person, which would include the bankrupt?
– From the time an estate is placed in the hands of a trustee the bankrupt ceases to have anything to do with the business. My object is to give the trustee the power to employ him for a specific work, a specific period, or indefinitely, until the estate is finally wound up, and to enable the trustee to do so without calling a meeting of creditors, or making an application to the Court.
– My only objection to the amendment is to the special mention of the bankrupt, which, I think, would have the effect of restricting its operation. I am prepared to admit that, in many cases, the employment of the bankrupt in the sale of goods, or to continue the business of the estate, would be an advantage to the creditors, but there might be cases in which the very employment of the bankrupt would be detrimental to the settlement of the estate. I should like Senator Keating to submit his amendment in such a form that the trustee would be in a position to employ any person, including the bankrupt.
– I have no objection to that.
Senator GARDINER (New South Wales - Vice-President of the Executive
Council) [4.36]. - I hope that Senator Keating will not press his amendment. There might be occasions upon which its effect would be to expedite the business of an estate, but there are other occasions on which the creditors would be entitled to be consulted. I remind honorable senators that the bankrupt could be employed by permission of the Court, or permission of the creditors, and usually there would not be such a hurry in connexion with the settlement of an estate that any loss would be sustained by delay in securing permission of the Court or of the creditors. What the honorable senator proposes might be advantageous in some cases, but the amendment would be attended by the danger that very often what is done quickly is not done in the right way. Under clause 97 the trustee may secure the permission of the Court or of the creditors to employ the debtor in the way proposed. I would ask honorable senators not to agree to the amendment, unless they feel very strongly concerning its advantages.
– I have no objection to accept the suggestion offered by Senator Senior, and make the amendment read in such a way as to permit the trustee to employ any person, including the bankrupt, to do any business necessary for carrying on the business of the bankrupt. With regard to the statement of the Minister that the Bill elsewhere provides for the employment of the bankrupt, it is true that, in clause 98, and not clause 97, there is a provision enabling the trustee, with the sanction of the creditors, .by resolution of any general meeting, to appoint the bankrupt to superintend the management of his property, or any part thereof, or to carry on his trade for the benefit of his creditors on such terms as the trustee may direct. It is clear from that that the Bill contemplates the possible employment of the bankrupt, but not for a limited period or a definite task. It contemplates his employment for the superintendence of the management of his property, or any part thereof, or the carrying on of the trade of his business. I am proposing to invest the trustee with the power to employ the bankrupt as an employe. If his employment is detrimental, as it would be in only very exceptional cases, and that is overlooked by the trustee, it will probably be realized by the creditors or Committee of Inspection, and the bankrupt’s employment will not then be continued/. Why there should be the necessity, not merely for the formality of obtaining a resolution, but for the cumbersomeness and the risk of obtaining a resolution, I fail to see. If a bankrupt is to be employed to go on with his business as if he had not failed, I think that the creditors have a right to be consulted. If he is to be employed to superintend the management of his property and control the working services of clerks and otherofficers, I consider that the creditors should be consulted. Provision is made for that in clause 98 ; but my amendment will give to a trustee merely the power to temporarily employ the bankrupt, and the bankrupt having an acquaintance with his business, and knowing the people with whom he had been dealing, will be able to do the work, in many instances, much better than could any other man, even though the latter might be otherwise, and generally much more* skilful. If a trustee wants to employ the bankrupt for a week, say, to collect debts, probably there is no better man. who could be secured for that purposeI am not seeking to enlarge the powers, of a trustee to any very great extent toenable him to carry on without having to resort to the provision made in clause 98. As one who has had some experience in connexion with bankruptcies, I can say that, after the first meeting of creditors, it is most difficult to get them to meet again. They have to be urged and entreated to attend a meeting. They say, “We have attended a meeting,” or “We have written the debt off.” And many of these persons are those who will complain afterwards, blaming the Act, or somebody. I hope that the Minister will see that my amendment proposes no undue enlargement of the powers of a trustee. It is only providing a little greasewhich will enable the wheels to revolve more smoothly, and to facilitate proceedings in the interests, not of the trustee, but of the creditors, and at less expense to them. It is absurd to involve the estate in the expense of convening a meeting or of obtaining the authority which is required in clause 98 - authority which, I agree, it is desirable should be obtained! where a bankrupt should be engaged to carry on the business as though no bankruptcy had occurred, or to superintend the management of it. I cannot say offhand whether such an express provision as I propose is in force anywhere; but I know that it is a common practice, especially in connexion with a country storekeeper, for the trustee to employ the bankrupt in connexion with the work. It is almost a necessity, and certainly it is an advantage. I do not know that it is necessary to pass a resolution in a case of that kind.
– It would appear that if this amendment is accepted it will entirely remove from the creditors any safeguard -which otherwise they would have. As Senator Keating has pointed out, the creditors in an estate will not be consulted before the bankrupt is employed. “The amendment is a very sweeping proposal. It gives the bankrupt unlimited power in the management of his own estate
– No; it gives power to the trustee to employ the bankrupt.
– Do I understand that the amendment is submitted with the object of still leaving it to the trustee of an estate to say whether or not the bankrupt shall be employed ?
– Other than is provided for in clause 98.
– The proposed new paragraph reads -
Employ the bankrupt to do any business necessary to carry on the business of the bankrupt.
It is a drag-net provision, which excludes nothing on which the bankrupt may not be employed, even the management of the business. It will empower a trustee, in defiance of the expressed wish of creditors to employ a bankrupt, to manage hi3 own estate.
– He could not do that.
– In ninety-nine cases out of one hundred it is necessary for the trustee to retain the services of the bankrupt.
– Clause 98 provides that the creditor shall be consulted before the bankrupt is employed to again run his business. But the amendment empowers the trustee to appoint the bankrupt to act in any capacity, even to again superintend his own estate, without the creditors being consulted. It appears to me to be an attempt to get round clause 98 by not giving the creditors a say in the question of employing a bankrupt.
– If your argument has any weight, it is infinitely stronger against clause 98.
– What could be less sweeping than the powers conferred upon a trustee by the amendment? He could employ the bankrupt to do any business, including the superintendence of the estate.
– If so, clause 98 would come into operation.
– Would not the amendment clash directly with clause 98, seeing that it deprives shareholders of the right to say that the bankrupt shall’iiot be employed again?
– I think it would clash.
– I am afraid that it would. If clause 98 is sufficient for practical purposes, I see no necessity to overload the Bill with superfluous words.
– Clause 98 empowers the trustee in certain circumstances to employ the bankrupt for superintendence. There is no provision in the Bill to employ the bankrupt for anything less than superintendence or management.
– It is a maxim, I think, that where two provisions of an Act are contradictory, the former prevails over the latter.
– There is no contradiction.
– You have to try to read the provisions together, in order to see if they really aro in conflict.
– I remember a decision given by a Supreme Court Judge that when two sections of an Act clash clearly with each other, the first is always supreme. I think that the amendment of Senator Keating would clash straight away with clause 98. I do not feel inclined to seriously resist the amendment, but if it will not improve the Bill why should it be made?
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.52].- The idea of Senator Keating is not to cause difficulties, but rather to ease difficulties which otherwise might arise. The amendment does not go so far as clause 98 does. It enables the trustee to employ the bankrupt, possibly to collect debts or to report as to the solvency of different persons. It confers a limited power, and the exercise of the power is always subject to the control of the trustee. It confers upon the trustee no powers greater than those which are conferred by the clause in paragraphs e and g. Under paragraph g he may use his own discretion in the management of the estate and its distribution amongst the creditors. Could honorable senators place a wider power in the hands of a trustee than this power ? The amendment only makes clear the power which the trustee would have to employ the bankrupt in certain circumstances and for limited periods. In framing a law under which wide interests will be involved, we cannot afford, for the sake of terseness, to leave in doubt anything which can be made clear by a few words. I urge upon the Minister that it is desirable to adopt an amendment of this character. It is clearly in the power of a trustee to play ducks and drakes with an estate if he is unwise or incapable, bub surely it will be assumed that every trustee will be a man of integrity and ability, who will be quite capable of discharging the duties of the position. It will not derogate from the protection of creditors to give this limited power. If the amendment is made, and a trustee discovers sufficient cause, he can always remove the bankrupt without consulting the creditors. If honorable senators think it is undesirable that a bankrupt should have anything to do with the administration of his estate, do not confer the power to employ him on the trustee. But we know that there have been innumerable cases where the estate of a bankrupt has been successfully administered by reason of his employment. It must be recognised clearly that in that capacity he cannot do just as he did when he was running his business on his own account. A man running his own business is his own master, and unwise speculations may land him in bankruptcy. Under a trustee he may make a success of the business, because he will not be allowed to make risky experiments.
– Could not a receiver act in the same capacity?
.- Exactly. He has the whole control, subject to a supreme authority. The Minister would be well advised to take the matter in hand. It is difficult for him without a knowledge of bankruptcy practice to handle a Bill of this kind, and a little deference might be paid to the opinions of lawyers engaged in actual practice, whose whole object is to smooth matters and apply a little lubrication where otherwise it might be necessary to go to Court and incur a good deal of expenditure that might be saved.
– I would suggest to Senator Keating that to make his amendment clear he should include some such words as “ employ the bankrupt to do any business other than that referred to in clause 98.”
– Clause 98 gives all the powers, and the greater includes the less.
– Clause 98 limits the power of the trustee very much, and limits the form of employment of the bankrupt. Am I to understand that clause 98 gives the trustee power to employ the bankrupt in any capacity whatever ?
– Yes, if a general resolution is carried by the creditors.
– If that is so, it makes the case for rejecting the amendment stronger, because Senator Keating proposes to endow the trustee with power to employ the bankrupt without a resolution of the creditors to do anything necessary to carry on the business.
– Well, give the creditors power of veto if they see fit.
– If it is vital to consult the creditors - and it is obvious that it is - the insertion of the amendment would undermine to a serious extent the rights which the creditors would otherwise enjoy under clause 98. ,
– All the powers under clause 96 are “ subject to this Act,” and, therefore, they all have to be read as subject to clause 98.
– My proposal was to dovetail the two clauses, so that neither would clash, while, at the same time, each would relate to different classes of employment - one temporary and the other permanent. In the one case it could be without the sanction of the creditors, and in the other with it.
– The clause gives all the power necessary for appointing a bankrupt to do any class of work. Senator
Keating says that, on account of the delay, it is wise to give the trustee power to appoint the bankrupt to do any class of work. The necessity to get the permission of the creditors is like the brake on a van. There may be downhill tracks where it is very necessary for safety.
– It is difficult in a State bankruptcy to get a meeting, and will be much more difficult in an Australian bankruptcy.
– There is a danger in a State bankruptcy of even a first-class trustee, anxious to expedite matters, appointing a bankrupt to do things which would meet with the disapproval of nine-tenths of the creditors. We make provision in clause 98 for the sanction of the creditors, who are surely the chief people to be consulted when the estate has reached that stage. If the Committee is anxious to run the risks of haste because of the danger of going slowly, it can adopt Senator Keating’s amendment, but I see greater danger in throwing aside the safeguards provided in almost all the Acts - Australian and English - as shown by the marginal notes.
-Colonel Sir Albert Gould. - They are misleading.
– That is not a fair thing to say; it has been said before, but not yet proved.
– I proved it in connexion with the Queensland Act.
– The honorable senator asserted it, but did not prove it when asked to do so.
– The honorable senator showed that the marginal notes were certainly misleading in connexion with the Queensland Code.
– The marginal notes suggested a comparison with the Queensland Code. Senator Keating used his position and knowledge of the Act to mislead the Committee in that case. However, it is not a matter for warmth. It is a question whether we are going to insert a clause that cuts into clause 98, and may even altogether supersede it. Clause 98 gives all the permission necessary for the employment of the bankrupt to assist in dealing with the estate, but only with the permission of the creditors. It is safer to follow the beaten track. The reason advanced for the change is that more speed may be gained. It is a question of speed against safety, and, with my usual conservative nature, I prefer to stick to the beaten track’ of safety rather than embark on unknown roads with those who are anxious to get along at a greater rate. I see grave dangers ininvesting trustees with unusual powers.
– They are powers in constant use by trustees in South Australia; in fact, even greater powers are given there.
– I hope the honorable senator is right. All the powersnecessary are given in clause 98. The amendment is far-reaching, and may override clause 98 altogether. ‘
– Although we have not yet reached clause 98 we have heard sufficient to see that it meets with the approval of the Committee; if so, Senator Keating’s amendment will cut right across it, and when we reach clause 98 the Minister may find the ground cut from under his feet. The creditors are the most important people in these matters, and should certainly be consulted. The amendment would rob the creditors of the right to say whether the bankrupt shall be employed in the business.
-Colonel Sir Albert- Gould. - Why not give the creditors the right of objection if they see fit?
– Clause. 98 already gives it. It would be foolish, before reaching clause 98, to accept an amendment which would practically destroy it.
– The Minister seems to have missed the reason for tabling the amendment. He has said it is a case of speed as against the safety of the creditors, but that is not the position. The experience in every State is that once a first meeting of creditors has been held a large number of them wash their hands of the whole affair, and it is sometimes almost impossible to get another meeting. If that is so in the limited areas of the States, what can w* expect when the area of the bankruptcy will be the Commonwealth? There may be a case where the creditors range from Townsville to Hobart, and it will be difficult to summon a meeting of them to get a resolution of the character provided for under clause 98. Assuming that an estate has been sequestrated, and a trustee appointed, the trustee may wish to employ the bankrupt. I ask that he should have the power to employ him in anything abort of the superintendence of the business of the estate, or any portion of it; but the Minister by refusing to accept the amendment prevents the trustee from so employing the bankrupt without the sanction of a meeting of the creditors. What would happen if he could not get the creditors together? In that case a deadlock would arise so far as the appointment of the bankrupt was concerned. In such circumstances, of what use would it be to empower the trustee to employ the bankrupt?
– The honorable senator’s amendment does not set out that the bankrupt must be employed only in a subordinate position.
– But the whole of clause 96 is governed by the opening words -
Subject to this Act, the trustee may do all or any of the following things: -
That provision covers the other portions of the B.:il, including clause 98, which provides that the trustee, if he intends to employ the bankrupt to superintend or manage, must first obtain the sanction of the creditors.
– Under the honorable senator’s amendment the trustee might employ a bankrupt in the interests of one creditor and in opposition to the interests of all other creditors.
– If he were dishonest he might do so.
– He might do so if he were thoroughly honest.
– No provision we can insert in this Bill will safeguard creditors against either dishonesty or incapacity on the part of a trustee. In regard to the marginal notes of the Bill, the Vice-President of the Executive Council remarked, with some heat, that on a former occasion I had affirmed that they were misleading. I did so, and I repeat any statement now. When I made that declaration I established its truth to the satisfaction of every member of this Committee with the exception of the VicePresident of the Executive Council.
– The honorable senator misled every member of the Committee except myself.
– At the moment I made +he statement in question, Senator Turley had the Queensland Code in his hand, from which I think he quoted.
He showed that the marginal note was misleading.
– The marginal note in question merely asked honorable senators to compare the provision with the Queensland Code.
– I beg. the honorable senator’s pardon - it did not. The marginal note inviting a comparison with the Queensland Code was placed in the wrong part of the clause. It was a proviso at the end of the clause, to which the comparison should have referred, and not that particular portion of the clause which was under discussion here for an hour. Senator Guy has asked me if the power contained in this clause is at present exercised by trustees. My experience has been limited to my own State, and I say that in Tasmania the trustee has been endowed with all the powers which will be conferred by clause 98 of this Bill. Yet the marginal note to clause 98 would lead us to suppose that that provision is based upon section 64 of the .English Bankruptcy Act, section 61 of the Western Australian Bankruptcy Act, and section 25 of the Tasmanian Act. That is a deliberate invitation to the Committee to believe that that particular clause is based upon section 25 of the Tasmanian Act.
– The honorable senator would not expect it to contain the three sections in question.
– It might follow each one of them. From the marginal note one might be led to believe that all the provisions to which it refers are the same. E propose to read section 25 of the Tasmanian Act, and honorable senators will then see that in character it is the very opposite of clause 98. It provides -
The trustee may appoint the bankrupt himself to superintend the management of the property or of any part thereof, or to carry on the trade of the bankrupt for the benefit of the creditors, and in any other respect to aid in administering the property.
That is to say, the trustee may do these things without reference to anybody. But in this Bill the words, “ with the sanction of the creditors by resolution at any general meeting,” have been introduced. The difficulty experienced in a State has always been that of getting a meeting of the creditors after the first meeting, and this difficulty will be intensified when bankruptcies extend over the entire Commonwealth . Consequently it will be difficult to obtain the sanction that is required by clause 98.
– That clause is intended to be a composite provision, which has been borrowed from portions of the Imperial Act, the Western Australian Act, and the Tasmanian Act.
– Section 24 of the Tasmanian Act begins as does clause 96 of this Bill. Then section 25 gives the trustee absolute power, without reference to anybody, to appoint the bankrupt.
– That power will be completely abrogated by this Bill.
– With the exception of the reference to the creditors.
– -Then section 26 of the Tasmanian Act gives the trustee certain powers with the sanction of the Committee of inspection. I wish to see the trustee empowered in all cases of minor importance in connexion with the administration of an estate to employ the bankrupt for specific work or for a specific term. But if the bankrupt is to be employed for the general superintendence of the whole or any part of the estate, I believe that the restriction imposed in clause 98 should apply. If my amendment be not carried, and the bankrupt’s services are required for a month, or for the performance of some specific work, the trustee will be unable to employ him unless he secures the sanction of the creditors by special resolution. I ask the favorable consideration of the Vice-President of the Executive Council to this aspect of the matter. If the wording of my proposal does not meet with his approval, I appeal to him to allow it to pass, and before the Bill is finally dealt with, we can, if necessary, rectify its verbiage.
– Under the honorable senator’s amendment is there any capacity in which the bankrupt cannot be employed ?
– Yes, the superintendence of the management of the estate. But in anything short of that, the trustee would have power to employ him without reference to the creditors. That is the only object which I have in view. Debtor and creditor relations are not now measured by State boundaries, but by the boundaries of the Commonwealth.
– In order to make clause 98 effective, would it not be neces sary to add some words to the honorablesenator’s amendment?
– One way of achieving our purpose would be to eliminate the final portion of clause 98. Under this Bill, creditors will be much more scattered than they are under any State or Imperial Act. I am not wedded to the particular form of the amendment, and if we can achieve the object which I have in view by amending the clause without derogating from the general principles of the Bill, I shall be satisfied.
– Cannot the honorable senator add something to his amendment to make its meaning clearer?
– It is difficult to draft a limitation when one is on one’s feet; but I think that, if the trustee were empowered to employ the bankrupt in any capacity short of superintending the management of the property, or any part thereof, the position would be satisfactory. It would always be open to the creditors or to the Committee of inspection to upset what the trustee had done.
– The Committee of inspection ?
– Yes. Senator Bakhap has just suggested that we should make it clear that the bankrupt might be employed in any subordinate capacity. But the difficulty in that case would be to define the meaning of the term ‘ ‘ subordinate capacity.”
– What objections are there to employing the bankrupt?
– I know of none, except when the bankrupt is under suspicion. Where there were any circumstances of a suspicious character connected with an insolvency, the creditors, at their very first meeting, would probably exercise their powers to pass a resolution that the bankrupt should not be employed unless with their special consent.
– I recognise that Senator Keating has made out a good case as to the difficulty of getting creditors together to decide what should be done. I offer the suggestion as a way out of the difficulty that has arisen that, if the trustee has endeavoured to secure a meeting of the creditors in order that he might be invested with the power which Senator Keating desires he should possess, and the creditors have failed to meet, he should then be able to exercise that power. In this way, the interests of the creditors would be safeguarded.
– The bankrupt, having no employment, might in the interval go to some other State.
– He might; but we have first to consider the rights of the creditors in this matter.
– The bankrupt might be the most unfortunate man of them all.
– That is so; but that is not generally assumed. By adopting my suggestion, the views of both the Minister and Senator Keating would receive consideration. I should be prepared to assist Senator Keating to effect an amendment of the Bill in that form.
– When Senator Gould insinuated that the marginal notes to the clauses of this Bill are misleading, I made the statement that Senator Keating had said that in connexion with the marginal notes to the Crimes Bill, but had not proved it. It will be remembered that Senator Keating stated that the marginal note to clause 17 of the Crimes Bill invited honorable senators to compare the clause with the Queensland Criminal Code. I do not say that he did so intentionally, but Senator Keating led honorable senators to believe that it was intended, by the marginal note, to infer that the clause was identical with the similar provision of the Queensland Code.
– No; I did not.
– I do not say that the honorable senator intended to do so; but that was the effect of his complaint, and that is why T resent the imputation that the marginal notes in any Bill introduced by the Government are misleading. I do not introduce Bills with a view to mislead any member of the Senate. Senator Keating’ 3 suggestion that the marginal notes appeared a long way down on the page was not accurate.
– I said that it should have appeared lower down in the clause of the Bill.
– That might suit a lawyer, but it will not suit me. I am not going to have our business conducted in such a way that to-day an inaccurate statement is made, and to-morrow a complaint is based upon it. I resent the imputation that there is anything misleading in the marginal notes to this Bill. With regard to the amendment, honorable senators may feel that there is some necessity for such an amendment; but, in my opinion, that proposed by Senator Keating would leave things in a more doubtful position than they are in under the Bill as it stands. I make the offer to honorable senators that, if they will permit the clause to pass, I shall be prepared, before the report stage is reached, to move for its re-consideration, in order that an opportunity may be given to consider an amendment which would have the effect Senator Keating desires without cutting across the provisions of clause 98, as I believe the present amendment does.
– What about my suggestion ?
– I think that’ the honorable senator’s suggestion would probably afford the means by which the difficulty might be overcome. It might be proposed that the committee of management should deal with matters where it would he too cumbersome to have them dealt with. by a meeting of the creditors.
– Suppose there is no committee of management?
– We might continue to suppose difficulties all the time. If honorable senators desire it, I have no objection to take a division on the amendment now. I have said that I think that there are reasonable grounds for believing the amendment would be in conflict with clause 98, and as there is a difference of opinion, I have suggested what appears to me to be a way out of the difficulty.
– Senator Keating can have no other object than to improve the Bill.
– I do not know that any one would suggest that the honorable senator has any other object. A man might honestly desire to improve the Bill from the stand-point of chambers of commerce or big business people, and might consider their interests more important than the interests of any other persons in the Commonwealth.
– That is a very farfetched supposition.
– I might say the same of the suggestion that a man could have no other object than to improve the Bill. Every member of the Senate, I suppose, desires to make our legislation as perfect as possible. I am not satisfied that if a bankrupt were appointed to do certain work by the trustee under the amendment the creditors would be able to remove him if they desired to do so. As contradictory opinions have been expressed, I ask honorable senators to allow the clause to go now on the understanding that, if necessary, it will be reconsidered before the Bill leaves the Committee.
– The Minister can rest assured that some amendment is necessary, because, in Tasmania, it is the invariable practice for the persons sent to take charge of an insolvent estate to employ the bankrupt for at least a month or two.
– I am prepared to welcome an amendment which would remove my objection to that .which is now before the Committee, and at the same time do what Senator Keating’ desires.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [5.35].- It might be well to insert an amendment giving the trustee power to deal with matters in the way suggested- by Senator Keating, where an estate is under a certain value. Clause 98 might be amended so as to provide that, upon the creditors failing te attend a duly summoned meeting, the trustee should be at liberty to exercise such of the powers as are provided for in that clause as he might think desirable, subject to the right of the creditors, if they so desired, to vary or alter the decision of the trustee at a meeting subsequently convened. In the case of an estate of small value, it might not be worth while to call the creditors together, and in -such the course proposed by Senator Keating might be adopted. In all other cases clause 98 could be brought into operation with a proviso that if the creditors failed to attend a summoned meeting the trustee should be empowered to exercise the powers given under the clause in the interests of the estate. This might cause delay, but it involves the maximum of security. We should be very -careful in dealing with this measure not to impose restrictions in connexion with the administration of insolvent estates that do not exist at present. We want to make this Bill acceptable to the whole of the Commonwealth. It is very important, and will, no doubt, be a valuable piece of legislation. The VicePresident of the Executive Council was, apparently, a little hurt by my statement that the marginal notes are misleading. Let me assure the honorable senator that I made no charge against him in the matter. No Minister could possibly undertake to examine the whole of the marginal notes to the clauses of any Bill.
– It was a charge against the Government in introducing the Bill.
– The complaint is not peculiar to the Bankruptcy Bill, but has been made in connexion with almost every Bill that has been introduced. Marginal notes are supplied referring honorable senators to sections of existing Acts, but when those sections are examined it is sometimes found that they differ very considerably from the clause of the Bill to which the marginal note is attached, and to that extent are misleading. No one has any desire to charge the Minister with intentionally misleading the Committee in this manner.
.- The Vice-President of the Executive Council is fearful that Senator Keating’s amendment would give the trustee a power which is not covered, or should not be covered, by the clause. I point out to the honorable senator that in section 137 of the South Australian Act which is referred to in the marginal note the power is not a restricted, but an absolute, power. The section reads -
All powers vested in any insolvent which he might legally exercise for his own benefit may be exercised by the trustee for the benefit of the creditors in such manner as the insolvent might have exercised the same.
It will be seen that under that section, which is referred to in the marginal note to this clause, absolute authority is given to the trustee to exercise the powers which the insolvent might have exercised prior to insolvency. Let us take a case in point. Suppose that an insolvency occurs 300 or 400 miles from the place where the creditors are doing business. They are not acquainted with the customers of the insolvent. They are not conversant with the ability of the customers to pay up. They are not acquainted with any of the things which are foremost in the mind of the insolvent. Yet, under this clause, the trustee cannot employ the insolvent, even although he may see that it would be to the best interests of the creditors to take that course, simply because he is a bankrupt. The first consideration should be to study the interests of the creditors, and the next consideration is what power should be conferred upon a trustee to enable him to exercise his judgment for the benefit of the creditors. If a trustee may sell a part of the estate at very much less than its real worth, without consulting the creditors, surely he ought to be at liberty to employ the bankrupt, seeing that the trustee is there to study the interests of the creditors. He is their safeguard. He will have to administer the estate largely without consulting them.
– He will not always be a good man to preserve the interests of the creditors.
– In certain circumstances, he may be the best man. If at the first meeting the creditors specify that the bankrupt shall not be employed, it will meet the case. The bankrupt cannot be employed then, because the trustee will be the servant of the creditors. Section 141 of the South Australian Act reads -
The trustee may, with the approbation of the Court, appoint the insolvent to superintend the management of the estate, or to carry on the insolvent’s trade or business, and otherwise to aid him in administering the insolvent’s estate and effects in such manner and on such terms as he may think best for the benefit of the creditors.
That provision is almost identical with clause 98 of this Bill. Although it will be seen that absolute power is given to a trustee to employ the bankrupt, yet the Minister hesitates to accept the principle. What I do not like is that the man who could be most useful and beneficial is singled out as the one man who is not to be employed by the trustee. I ask the Minister to accept the amendment. In South Australia I have known of dozens of cases where the best man for the creditors to employ was the bankrupt himself. Where he is so employed, he is a servant under a master, and not a master superintending the business which he brought to ruin. The amendment, in my opinion, will make the clause more effective and useful. The Minister has remarked that it is contrary to practice to employ the bankrupt; but in South Australia I have known the bankrupt tobe employed in dozens of cases by the official assignee to superintend the stocktaking and the collection of debts, and very often to supervize the transfer of the stock to the successful tenderer.
– I think that the discussion has justified itself, because it shows that there is some necessity for departing from the inelastic provisions of the measure. I accept, in the spirit in which it has been proffered, the suggestion of the Minister that this matter can be dealt with at a later stage. I hope that it will then be dealt with in the light of the present discussion, because I think it has been revealed that it is not desirable that we should rely on the inelastic provision of clause 98, and will get something more elastic. Due precautions should be taken to safeguard the interests of all concerned. I do not propose to press the amendment at this stage.
Amendment, by leave, withdrawn.
– I move -
That the following new paragraph be inserted after paragraph g : - (gg) Employ a barrister, solicitor, attorney, or other agent to take any proceedings or to take part in any examinations or to do any business which is sanctioned by the Court.
Clause 97 provides that the trustee may, by permission of the creditors, by resolution passed at any general meeting, or of the committee of inspection, or by leave of the Court-
The words in paragraph c of clause 97 are identical with the words of the proposed new paragraph in clause 96. The effect, therefore, of my proposal would be to transfer paragraph c from clause 97 to clause 96. It will be obvious to honorable senators that there are matters in connexion with bankruptcy provided for throughout the measure which require intervention by the Court or application to the Court - in many instances matters of routine. So far as they are concerned, I do not think it would be desirable to add the expenses which are involved in securing the authorization required by clause 97 to employ a barrister. The object of my proposal is to leave these matters to the trustee under clause 96 without the necessity of his having recourse to the authority which is provided for in clause 97. The amendment, I may say, has not been recommended by any body of lawyers; it has been recommended by the Committee of the Chambers of Commerce to which I have referred several times. A majority of the members of that Committee were men who had been accustomed to dealing with bankrupt estates. Experienced men like Mr. Borchard, of New South Wales, and Mr. Lemmon, of Victoria, realized that in many instances it is necessary that an application should be made to the Court in a matter which, to a large exteno, is one of routine. The application must be made in order to comply with the law. If it would be necessary in all instances, before employing a counsel, attorney, or solicitor, to obtain a resolution of the creditors, the proceedings would be unnecessarily cumbersome. I hope that the Minister will realize the necessity and the advantage of making this amendment.
– I admire the skill with which Senator Keating puts his views before the Committee. His proposal is to alter clause 97 by transferring to this clause the paragraph under which the trustee may, by permission of the creditors, by resolution passed at a general meeting, or of the Committee of Inspection, or by leave of the Court, employ a barrister. I ask honorable senators, Is it not a fair thing to have this safeguard to the employment of barristers or solicitors for other people? There is no occasion for Senator Keating, to talk about the cumbersomeness of getting the Committee of Inspection or the creditors together, because, at his suggestion, we have reduced the Committee of Inspection to two persons. Therefore, under the Bill the permission of only two persons has to be obtained for the employment of a barrister, and the Court or the Committee of Inspection can give the authority. This proposal to vest the authority in the trustee alone is, I think, an unnecessary interference with the scheme of the Bill. In my opinion, it is an unreasonable re quest. I do not propose to detain the Committee, because I believe that the common sense of honorable senators will perceive that it is an amendment which can be dealt with promptly.
Clause, as amended, agreed to.
Clause 97 -
The trustee may, by permission of the creditors …. do all or any of the following things : -
The trustee may, from time to time, with tha like sanction, make such allowance out of the estate as he thinks just to the bankrupt for the support of his family, or if he is engaged in winding up his estate, in consideration of his services. . . .
– I move -
That the words “ The trustee may “ and the words “ with the like sanction,” paragraph j, be left out.
These words are surplusage, and are obviously repeated in consequence of the attempt in drafting to draw from different sources.
– I think we may strike them out.
Amendment agreed to.
– I move -
That the words “ or if he is engaged in winding up his estate, in consideration of his services,” be left out.
My object is to enable the trustee in all circumstances, whether the bankrupt is employed or not, to make him an allowance - always, of course, subject to the authorization contained in the governing part of the clause. There will be no obligation on him to employ the bankrupt, and whether the bankrupt is employed or not, if it is necessary for him to have something for the support ‘of his family, I want the trustee to have the power to make the allowance.
– I fail to see the wisdom of this proposal, because, under the clause as it stands, not only can an allowance be made to the bankrupt’s family, but if he is employed he can be paid for his services. If the amendment is made no direct payment can be made for services rendered by him. There is no harm in saying that he shall be paid’ for his services.
– My object was to place all bankrupts in the same position, so far as this allowance is concerned. “ A,” a bankrupt, may bo willing to assist the trustee in realizing the estate-, but the trustee may not require his services, and he may be unable to obtain employment elsewhere. The trustee would have the power to make him an allowance under the clause, but in his case it would be a dole or charity. “ B,” another bankrupt, might be allowed to assist the trustee and do some work, and the money allowed to him under the same clause would not be a dole or charity. By omitting the words to which I have directed attention, all bankrupts would be placed in the same position. I want to apply the same principle as applies in the case of old-age pensions. The fact that a bankrupt does not work for the estate may be due to causes, outside bis own- control, such as ill health or the desire of the creditors to secure the services of somebody else. I do not want any pauperisation in this matter. The Committee of the Associated Chambers of Commerce regarded it as the general policy of the Commonwealth that there should be nothing of a pauperising character about the allowance.
Clause, as amended, agreed to.
Clause 98. (Power to allow bankrupt to manage property^)
– Will the offer of the Minister regarding clause 96 apply to clause 98 f
– I can give the Committee a general assurance that when we get through the Bill, as there are several important features of it being considered by the Attorney-General, I shall deal with the clauses in a reasonably generous way. If there aro any amendments which require further amendment I shall be reasonable in the matter.
Clause agreed to.
Clause 99 -
– I move -
That the word final “ be inserted before the word “ dividend.”
– Is not notice usually given of every dividend in that way
– The declaration of a final dividend is totally different from the declaration of any ‘other dividend. Nobody objects to receiving payment of dividends without notice, but to receive payment of a final dividend without notice is another matter. Before a trusteedeclares the final dividend it is only right that he should publish - a notice of his. intention in the Gazette, so that creditors may be afforded an opportunity of saying, ‘.’ This should not be the final dividend. The estate should realize more.” To my mind, a distinction should bedrawn between the payment of an ordinary dividend and the payment of a final dividend.
– I will give consideration to the amendment before the Bill is again under consideration.
Motion (by Senator Pearce) proposed -
That th-3 Senate do now adjourn.
.” - I desire to repeat the question which L put to the Minister of Defence last week, in reference to the military raids which were recently conducted on business premises. I wish to know whether it is theintention of the Attorney-General or of the Minister to make any announcement in regard to the result of those raids, more particularly in the case of individuals or firms whom the raids have revealed were unjustifiably under suspicion. I do not suggest that it is desirable that the Government should announce details. of what was done or what was discovered in connexion with those raids, but wherethey revealed the innocence of any firm or firms I believe the fact should be made known as widely as possible.
-Colonel Sir ALBERT GOULD (New South Wales) [6.15].- I desire to ask the Minister of Defence whether he has yet obtained a reply -to the> question which I put to him last week in reference to officers captured in German New Guinea t
Senator WATSON (New South Wales)
E6.16].- I wish to know what action the- 5-overnment propose to take in regard totrainees who are serving as apprentices in. various trades, and who are required to attend trade schools at night. Many of these lads have to attend the Technical College on certain nights each week, and have, therefore, either to forego their class instruction or their drill. As every drill lost means that they have to attend a double drill to make up that loss, I desire to know whether something cannot be done to remedy their position. Compulsory drill at night entails a great loss to these young men, who are endeavouring to fit themselves for the battle of life. I am not unmindful of the difficulties with which the position is surrounded, but perhaps something can be devised to overcome them.
.- In reply to the question raised by Senator Keating, I wish to say that the AttorneyGeneral has promised, as soon as possible, to make a statement in regard to those firms whose premises were searched, and in which nothing of an incriminating nature was found. I understand that he has made a statement to-day, but I am not in possession of it. ‘ I will endeavour to get it by to-morrow, so as to be able to repeat it here for the information of honorable senators. Concerning the question raised by Senator Gould, I informed the Leader of the Opposition to-day that inquiry has been made from the Administrator of what was German. New Guinea, but we have not yet received a reply as to any appointments which have been made.
-Colonel Sir Albert Gould. - My question was as to what arrangements have been made in regard to the ex-Governor of German New Guinea and the German officers who are in Sydney at the present time.
– The reply is that the position of the ex-Governor and the late officials of German New Guinea is determined, to some extent, by the terms of occupation granted to them by the military officer, Colonel Holmes. There are certain questions arising out of those terms which, to ‘our mind, necessitate a reference to the British Government. We have referred those questions to the Imperial authorities by cable, but. we are not -yet in receipt of their reply. The matter raised by Senator Watson has been raised previously, and it has been found necessary to give the brigade-majors in districts in which there are night schools or technical classes power to adjust these matters. If he will suggest to the persons who have made representations to him that they should wait upon the officers in question, the difficulty may po* sibly be overcome. If that course fails, the matter can then be brought ‘ before Head-quarters, but trainees cannot be relieved of their obligation to drill. _ The same difficulty cropped up. earlier in the operation of our defence, scheme, and it was overcome by allowing trainees to perform their drill in the day time, or on nights on which they were not required to attend technical schools. But the Area Officers have full power to adjust these matters.
-Colonel O’Loghlin. - The amending Defence Bill will meet such cases.
– - No. I would suggest to Senator Watson that he should recommend those persons who have made representations to him on this matter to communicate with the local Area Officers to see if the difficulty cannot be overcome by them.
Question resolved in the affirmative.
Senate adjourned at 6.22 p.m.
Cite as: Australia, Senate, Debates, 18 November 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141118_senate_6_75/>.