6th Parliament · 1st Session
The President took the chair at 3 p.m., and read prayers.
– Will the Minister of Defence take into consideration the advisability of passing legislation to prevent the supply of intoxicating liquors to members of the Military Forces while dressed in the King’s uniform during the continuance of the war?
– The matter will have consideration.
– I desire to ask the Minister of Defence a question without notice, and in order to explain the question, I shall read an extract from yesterday’s issue of the Melbourne Herald-
A most painful case of want and destitution was related to me to-day. A’ poor woman, the wife of a labourer out of work for some weeks, was taken to the “Women’s Hospital about ten days ago. She was 90 emaciated for want of food, not having any for the previous four days, that she was unable to walk, and had to be carried to a bed. After a week’s generous treatment her strength is again normal. She states that the furniture and clothes had to be pawned until all was gone, and being too proud to beg, her Btate became desperate.
Compare this unfortunate case with the following: - Certain Germans are now living in a suburban boarding-house at the cost of the Government, each receiving 30s. a week to pay for his board.
This is the particular part to which I would draw attention -
Each pays 25s., and the balance goes for a comfortable, well-furnished private room, in the same establishment, with a large photograph of the Kaiser over the mantelpiece. Our deadliest enemies, boiling over with hatred for everything English, living like fighting cocks on the revenue of our glorious Commonwealth.
Is there any truth in the second portion of the extract, namely, that the taxpayers of Australia, are paying 30s. a week to each of these Germans, as stated by the writer?
– I have no knowledge as to whether the German officer* from the ships have a photograph of the Kaiser on the mantlepiece. The facts are that the officers were taken from the German merchantmen which were captured afterthe outbreak of the war, and that an arrangement was entered into that, on giving their parole, they would be granted their liberty, and a sum of 30s. per week would be allowed to them for their maintenance. That sum has now been reduced to £1 per week.
asked the Minister of Defence, upon notice -
“GERMANSFROM NEW GUINEA.
” German prisoners from New Guinea to the number of twenty-six arrived in Sydney yesterday. On Friday last a contingent of thirteen was landed, and it is stated that more are to follow. It is impossible tosecure official data as to the total number so far sent to Sydney since the capture of Germany’s possessions in the Pacific; but, judging by the three lists already published in the Government Gazette at Babaul, the number cannot be far short of 200. To no other portion of Australia have these people been sent. “ At the present time there are seven Germans from New Guinea, with three of their families, staying at the Hotel Australia. They arrived on Friday, and will probably, like other Germans who have arrived recently, secure flats in fashionable localities. Several such flats have been set up in the most exclusive parts of Potts Point. “ it is understood that at the Metropole Hotel the Germans have been refused accommodation. A fewstayed there some two months ago; but, as the other visitors objected, they were given the hint to go. Since then none have been admitted, and whenever application is made for a room it is refused.”?
Under what conditions such prisoners are allowed their liberty in Sydney?
– The answers are -
– Has the Govern ment yet had time to take into consideration the matter of the InterStatewheat trade which I dealt with yesterday, and which the Leader of the Senate promised to lay before the Prime Minister?
– I would remind the honorable senator that the discussion only finished at half-past 11 o’clock last night. I have not yet had an opportunity to deal with his request, butI shall take the earliest possible opportunity to forward a copy of his remarks to the Prime Minister, and no doubt thelatter will give the matter consideration, and bring it before the Government foraction. I assure the honorable senator that, at the earliest possible opportunity, the matter will receive consideration from the Government.
– I have taken thenecessary steps to suppy a draft of my remarks to the officer who desires to seethem, and whois in attendance on the Minister.
Allotment of Pay : Married Men
– Can the Minister of Defence say whether the decision previously given that no married men wereto be enlisted in an Expeditionary Force unless they hypothecated a portion of their pay for the maintenance of theirwives still stands good?
– Yes. The onlyalteration which has been made has been that, whereas previously a man had to allot two-fifths of his pay, it is now required that, if he has a family, he must allot an additional amount sufficient for the upkeep of the family.
– Will the Ministerbe good enough to look into the papers, and see whether the latter decision was not one given by myself consequent upon- it coming to- my knowledge that the twofifths proportion had not been regarded as sufficient.
– All that I can say is that, in some cases, sufficient had not been allotted by the soldier for his dependents; that two-fifths of the pay had been allotted, but not sufficient for the family. I did not have an opportunity of looking at the papers, but I gave an instruction that commanding officers were to satisfy themselves that where a man had a family, a sufficient sum for the upkeep of the family should be allotted^ in addition to two-fifths of his pay. Whether that had already been done by my predecessor I was not aware. Certain complaints reached me, and I put a minute to that effect upon them. Probably my honorable friend put a similar minute on certain complaints; but in some cases apparently his instruction had not been given effect to.
– Will the Minister of Defence expedite the production of the presentation of the information for which I asked some time ago, namely, as to the percentage of married men in the first Expeditionary Force? The information is necessary to me, and I may have to take certain action based upon it.
– I can only say that every effort is being made to get the information as early as possible. Honorable senators, I am sure, realize the enormous amount of work which is being put on the Department, especially on the clerical staff, particularly in connexion with the pay branch, which has possession of the rolls. Everything that can be done to expedite the presentation of the information is being done, but I will again make a note of the request, and see that the inquiry is pushed forward as fast as possible.
Report (No. 1) presented by Senator
– The practice hitherto has been, on the presentation of a report from the Printing Committee, to have it read to the Senate. This has led sometimes to a waste of time, and honorable senators have not always been able to follow the report. It is proposed that in future these reports shall be printed in the Journals of the Senate. Honorable senators will then be in a position to peruse the reports for themselves, and when a motion is submitted for their printing to make any remarks they may think desirable on that motion. It is believed that this will better meet the convenience of honorable senators, and will lead to less waste of time than the reading of the report in accordance with previous practice.
asked the Minister representing the Minister of Home Affairs, upon notice -
– - The answers* are -
Has the attention of the PostmasterGeneral been directed to the obsolete condition of the Post Office at Port Adelaide?
Is it intended to erect a building more commensurate with the importance of the place, and in a more central position?
– The answers are - 1.Representations have been made as to the erection of a new building at Port Adelaide.
asked the Minister of Defence, upon notice -
– The answers are-
asked, the Minister representing the Minister of Home Affairs, upon notice] -
– The answers are - 1 and 2. The New South Wales Government has been repeatedly urged by letter and in interviews to transfer to the Commonwealth Government sovereign rights over the catchment areas of the Queanbeyan and Molonglo Rivers, and although some of the State Ministers were understood to verbally express themselves as willing to favorably consider the matter, the Commonwealth has not yet been able to secure definite action to that end.-
O’Malley, when Minister for Home Affairs, and surveys of the lay-out of the eity in accordance therewith were in progress, with a view to street formation and other works being proceeded with. The late Government stopped the work, and arranged for Mr. Griffin, the author of the first premiated design, to visit Canberra, with a view to the amendment and adoption of his design, in place of the approved one. Mr. Griffin desired further surveys, which have been made, and his finished amended plan is awaited, when urgent consideration of its merits will he given.
Bill received from the House of Repre sentatives, and (on motion by Senator Russell) read a first time.
In Committee (Consideration resumed from 25th November, vide page 1005) :
Clause 11 agreed to.
Clause 12 -
After section 135 of the principal Act the following sections are inserted: - “ 135b. Notwithstanding anything contained in the next two preceding sections, the total duration of the confinement of a person in respect of offences committed in any one year against sub-section (1) of section 135 or paragraph (a) of sub-section (1a) of that section, or of costs awarded in proceedings for such offences, shall not exceed thirty days. “ 135o. In places where Children’s Courtsexist, offences against this Act committed by cadets under the age of sixteen years shall be prosecuted in such Courts as far as is reasonably practicable.”
– I wish to direct the attention of the Minister to the fact that in Queensland there are Children’s Courts which deal with offences committed by children up to the age of seventeen years. I suggest that some slight alteration in the pro- posed new section 135c should be made to cover cases where provision is made for dealing with offences committed by cadets, above the age of sixteen years.
– I have no objection to the honorable senator moving to substitute “seventeen” for “sixteen” in the proposed new section on his assurance that in Queensland cases against persons up to the age of seventeen years are heard in Children’s Courts.
– I am quite satisfied that that is the case, because I have looked it up.
– Will the honorable member allow me to refer to the previous paragraph before he moves his amendment. Proposed new section 135b appeared in a Bill which I introduced, and I am entirely in agreement with the principle of it, but it contains a possible ambiguity. Its purpose was to prevent a recalcitrant trainee who persisted in refusing drill from being subjected to continuous prosecution, or practically committed to custody for life. On looking it over again it seems to me that the word ‘ ‘ offences ‘ ‘ may be construed to mean offences of a different character and not a repetition of the same offence, as was intended. The Minister might confer with his legal advisers in the matter. My intention was to*limit the total punishment in respect of the offence I have mentioned, even if continuously repeated, to confinement for thirty days.
– The paragraph directly specifies offences against sub-section 1 of section 135, or paragraph a of sub-section 1a of that section. The point has already received consideration. It is considered that the word “ offences “ is the correct one to use, even if there are a number of offences of the same nature.
Amendment (by Senator Mullan) proposed -
That the word “sixteen” in proposed new section 135c be left out with a view to insert in lieu thereof the word “ seventeen.”
– Senator Mullan says that there are Children’s Courts in Queensland which take cases up to the age of seventeen, but there are other States in which the age is lower. The paragraph as proposed to be amended would seem to imply that even there we would require those Courts to take cases up to the age of seventeen.
– Where, practicable.
– It would be quite practicable in Sydney, but the age limit in New South Wales is sixteen. I have no objection to amending the Defence Act to make the age limit seventeen, but this amendment may not have the effect we intend. It may be necessary to amend the Judiciary Act to give to Children’s Courts in States where the age limit is sixteen special power to take cases up to seventeen.
.- Our intention is clear. In some States, cases against children up to the age of sixteen can be taken in Children’s Courts. Where that can be done we desire those cases to be so taken. In one State, cases up to the age of seventeen can be taken. “In that State we desire them to be so taken.
– What does “ reasonably practicable ‘ ‘ mean ?
– I take it that that would be largely determined by distance. There might be a Children’s Court in Melbourne, and prosecutions in Ballarat. It would not be reasonably practicable to take those prosecutions in Melbourne. 1 think it can be held that as the South Australian State law provides that Children’s Courts in that State are for trying children under sixteen, it is not practicable for us to enforce this provision on those Courts so far as cases over sixteen are concerned, and the Act will give us power to deal with those cases in other Courts.
– The difficulty would arise then that a boy over sixteen in one State would have the privilege of going to a Children’s Court, and boys over sixteen in other States would not.
– The same difficulty occurs now, because in some States there are no Children’s Courts. I shall have the matter brought under the notice of the Attorney-General in order that the clause may be made to fully express our intentions.
– Can a State law override a Commonwealth law?
SenatorPEARCE.- If a State law provided that no cases should be heard in a Children’s Court in that State except those of children under sixteen, I hardly think that by an amendment such as this we could invest that Court with extended jurisdiction.
– I should think you would want special authority.
– I think so.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 13 -
Section 138 of the Principal Act is amended -
– I move -
That after the word “training,” line 9, the following proviso bc inserted: - “Provided that the regulations may authorize the District Commandant to grant temporary exemption for a period not exceeding one year, renewable from time to time, to persons who reside at to great a distance from the places appointed for training that compulsory attendance would involve great hardships.”
The object of this amendment is to meet the complaints which have been urged that in some districts great hardship is imposed on cadets who reside more than 5 miles from the training centre, and who have to attend from these extreme distances to undergo their drill. It is difficult to frame a general clause to meet such cases. There are some districts - for instance, in the metropolitan area - in which no hardship is imposed by requiring a lad to travel a distance of 3 or 4 miles to attend his drill; but there are other districts in which an extreme hardship is imposed by subjecting cadets to a similar obligation.
– There is the West Coast -of Tasmania, for instance.
– Yes. I had in my mind the West Coast of Tasmania, and also the Newcastle district, in New South Wales. In regard to the latter, I am informed that in some of the smaller centres lads employed in mines are sometimes engaged a couple of miles in one direction, and after they have ceased work they have to walk, perhaps, 5 miles in another direction in order to attend their drills. In other words, they may be obliged to tramp 7 or 8 miles after they have done their day’s work. It occurs to me that the best way of meeting this difficulty is to empower the State Commandants to grant temporary exemptions for a period not exceeding one year, to be renewed from time to time. I believe that the amendment I have submitted will overcome the difficulty, while at the same time it will not lay down the hard and fast rule that we are prepared to decrease the distance from the training centre. We wish to train as many of our youths as possible, and consequently we require an elastic clause to avoid hardship.
– I am very pleased that the Minister is making an effort to meet the difficulty to which I referred on the motion for the second reading of this Bill. But I ask him to consider whether his proposal goes quite far enough. Personally, I have arrived at the conclusion that 3 miles is as far as we ought to compel a lad to travel for training purposes. When the Minister says that it is easier for a youth in the metropolis to travel 5 miles than it is for a lad in the country to travel 3 miles, he merely states an obvious fact. But I would remind him that even a youth in the metropolitan area cannot travel 5 miles without the expenditure of considerable energy and some cash. My chief concern, however, is for the boys in our rural areas - lads in fruit-growing and farming districts who are just outside the 3 miles limit. Many of these youths finish their work about sundown, and have then to traverse bush tracks to reach the place of training. They have afterwards to return home. The number of these cases has forced me to admit that any limit in excess of 3 miles will impose hardship. I had anticipated that the Minister would seek to make the limit 3 miles. I come now to his proposal *o leave the matter in the hands of the State Commandant. I know of no less satisfactory authority to which it could be left. The State Commandants would approach this matter from a strictly military point of view. Now, it should always be remembered that if we wish to secure public approval of this Act it must have sympathetic administration. I would much prefer that the matter should be left to the Minister to deal with.
– Would not the Minister have to get his information from the military officers?
– It is not merely a question of getting the facts. The position is that the Minister would view the facts in one way - just as I would myself - and the State Commandants would view them in another. To the latter it would appear a very easy matter for a boy to travel 5 miles to attend his drill - to me it would not. I would like the Minister to consider the expediency of substituting 3 miles for 5 miles as the limit. As a matter of fact I am prepared to accept a compromise of 4 miles.
– At the present time 5 miles is the outside limit.
– I am not speaking of boys who reside only half-a-mile or a mile from the place of training, but of lads who are distant more than 3 miles from it. In the neighbourhood of Penrith, in my own State, there are lads who finish their afternoon’s milking about sundown. They have then to go into town, and after they have performed their drill they have to walk 3 miles back to their homes. That is a hardship which we never intended to impose when we passed the Defence Act. At the same time, the district, to which I refer is too sparsely populated to justify the creation of an additional training centre and the appointment of additional Area Officers. I ask the Minister if he cannot, without detriment to the system, see his way to reduce the radius in the direction I have suggested? We ought not to overburden the Act by making regulations too stringent upon those who are less happily situated so far as distance is concerned.
– I want to do what is fair as between the universal training system and the cadets, and I frankly confess that I would like a further expression of opinion on this matter from the Committee. If it is the general wish of honorable senators that the training area should be reduced, we might make the distance, say, 4 miles.
– Why not 3 miles?
– Because by so doing we would shut out a tremendous number of lads from training altogether.
– We could only shut out those who reside at a distance of more than 3 miles from the training centre.
– That is not so, as the honorable senator will recognise in a moment. At the present time our training area may take the form of a circle, and lads who reside within a distance of 5 miles from its centre are required to attend drill. Our training areas are based upon the fact that within them a certain number of youths require to be trained. Within a radius of 5 miles of a training centre a district may be able to provide sufficient lads to warrant it being proclaimed a training area. But if we reduce the radius to 3 miles we may not be able to get sufficient youths to warrant it being constituted a training area. In the country districts there has been more dissatisfaction expressed because we have not declared certain centres training areas than there has been because we have proclaimed particular centres .training areas. Not a week passes but there are requests for towns to be brought into a training area. When such a request is made, the first thing done is to find out how many lads there are within a given distance. When that information is obtained, and it is ascertained that there are twenty or thirty lads short of the required number, the request is refused, and a great deal of dissatisfac tion is expressed. In many cases it is the lads themselves who ask that it should be done. Now, where a training area is established, an instructor has to be stationed there. If it is proposed to haveinstructors stationed all over the country with very few lads to be trained, honorable senators will see that it will add enormously to the cost of the defence system. It has to be remembered that, in reducing the area, say, to 4 miles, they will not only shut out the lads between the 4-mile and the 5-mile limit, but the probability is that in many of the scattered districts areas which are now included will be excluded, because there will not be sufficient lads within the 4 miles to comply with the prescribed condition. As I have said before, the clause contains two safeguards. In the first case, the distance of 5 miles is not arbitrary. There are many areas where 3 miles is the distance. In the second” case, my amendment gives the power to exempt lads. I have no objection to put in “ Minister “ instead of “District Commandant.” My only object in putting in “ District Commandant” was to get a more speedy settlement of these questions; in fact, to decentralize. If we substitute “Minister “ for “ District Commandant,” what will it mean when a request for an exemption is made in North or Central Queensland? The request will have to filter through the Area Officer to the Brigade Officer, next to the District Commandant, and then to the central head-quarters here. Obviously we here will not know the circumstances of the case as well as the District Commandant should. It may be that he would not take as sympathetic a view as the Minister might take, but certainly it would be far better, at any rate, more speedy, if he could act on the spot. In an isolated case, where it would be a hardship for a lad, although it might be desirable from the stand-point of the Act, we should extend the radius so as to take in that centre. We desire the power, in order to be able to exempt where necessary. I have no strong objection to put in “ Minister “ if the Committee think fit ; but I do suggest that honorable senators should not be too hasty in omitting the 5 miles, and putting in anything less. In the past the areas have been allotted, as far as possible, to meet the cases. In determining the shape of an area, we have taken lines of communication into consideration as far as we could. It is all a matter of population density; and it is unavoidable that, now and again, we will bring in lads who have not facilities for getting to the training centre.
– How much more would it cost to make the distance 5 miles ?
– I cannot say, because I do not know how many new training centres would need to be brought in. Let me give a case with which senators from Western Australia are familiar. Such towns as- Cue and Day Dawn were declared one training area, and the lads had to go from Cue to Day Dawn, or vice versa. Honorable senators who know that every lad in those towns has a bicycle, and that it is flat country to ride over, realize that it is no very great hardship for a lad to have to travel from one place to the other, and frequently vehicles are travelling between the towns. For nine months of the year it has as good a climate as can be found in Australia, and in the summer months we do not carry out any training. For their own pleasure the lads travel backwards and forwards. Owing to the population decreasing we had to close the training area, and already we have received complaints. Suppose that the two towns wove 5 miles apart, the probability is that we would have one training centre. There are one or two cases where we have made a centre half-way between the towns, and bring the lads to the common centre. I trust that the Committee will not decrease the distance, although, if there i3 any strong opinion held on the matter, I would like to hear it.
.- If the distance of 3 miles, which I prefer, cannot be accepted, there is only one thing we can do, and that is to reduce the number to justify the creation of an area.
– That means increasing the number of instructors, and the cost of the training scheme.
– We cannot obtain conveniences for the people without incurring additional cost. In such districts as have been referred to by the Minister let us consider the case of a boy who has been working hard all day, whether on a farm or following a horse in a mine. In the Newcastle district, when a boy knocks off underground he may have to walk a couple of miles before he gets to the cage, and from the surface he may have to walk 2 or 3 miles to his home, and afterwards he has to do a 5 miles march before he begins his training.
– That would be a genuine case for exemption under the amendment I am proposing, because it is an extreme case.
– It is not an extreme case. In districts where I have lived in Australia it would be quite a common case.
– The lads will not all live on the outer rim.
– If the Minister goes into a mining district, he will find that the mines are situated a considerable distance from the residential areas. If we reduce the distance to 3 miles, consider what that distance will mean in some parts of Australia, such as, for instance, Gippsland. Boys have to cross a mountain. The distance they have to go is only 3 miles; but imagine what a journey it is after a day’s hard work.
– We would establish a 3-mile area. This clause does not say that the distance shall be 5 miles; it is to be up to that limit.
– I think that the limit ought to be 3 miles. Knowing Australia as I do, I think it is the utmost distance which we should ask boys to walk after having done their work.
– It does not seem that the duties which the defence scheme entails on eligible lads necessitate their attending for instruction more than about once a week. While I have no doubt that honorable senators are able to point out a case of hardship here and there, my experience, although it has not been very considerable, has produced results somewhat like those described by the Minister. I live in a district which is very sparsely populated, and which is exempted. In quite a number of cases the boys have expressed themselves very strongly at not being included in the scheme. They are anxious to be trained, and they arc continually bombarding me with questions as to why arrangements have not been made to train them. I do not think that there is any very great necessity for varying the provision in the Bill. If the radius is contracted to about 3 miles, there will be considerable blank spaces between the boundaries of existing areas. Therefore, there may be a hole, so to speak, in the scheme as it exists.
– The only remedy is to create more areas.
– These gaps exist today.
– Honorable senators will recognise, I think, that the gaps will be materially increased if the area is reduced to 3 or 4 miles.
– Not necessarily.
– I understand that the areas are so fixed as to provide a sufficient strength for a military unit. If that strength is reduced in the way desired by the honorable senator, the whole scheme will bo rendered, to an extent, abortive, because there will not be the necessary strength in any of the areas. If they are 5 miles from the centre, as half of them seem to be, according to the Minister, it may be reasonably assumed that a number of boys within an area is just sufficient to form a military unit for training. If we reduce the limit to 3 miles from the centro, the strength of that particular unit must be materially impaired.
– The honorable senator should not overlook the fact that we are above our numbers now.
– I am speaking of particular units, and not of the aggregate number of boys under training. If a certain area is plotted in order to furnish the number of youths required to form a unit, and the area is subsequently reduced, the number of boys necessary to form the unit will not be available. I consider the Minister’s suggestion in the matter the most reasonable one. Australian youths will suffer no great hardships “in being called upon to travel a few miles after dark. They are not afraid of -ghosts and goblins, as perhaps the youths of the country districts of the Old World are, and they really like the outing. I ask the Minister not to concede the point that he, and not the Commandant, should be the adjudicator in this matter. Decentralization of administration is ^necessary in every part of Australia, and -the State Commandants, having more local knowledge than the Minister, are better fitted to deal with this matter.
– I admire the conciliatory spirit in which the Minister has met the Committee. He has requested honorable senators to give expression to their views as regards these training areas. A reduction of the radius proposed from a training centre would, of course, involve an increase in the cost of our compulsory training scheme, but I should prefer that the cost should be increased than that we should continue the hardship at present inflicted upon many boys of having to travel a distance of 5 miles from their homes to the training centre. I do not think that any boy in Australia should be asked to travel 5 miles from his home to the training centre after he has completed his day’s work. What it means is that he is obliged to travel 5 miles to the centre and 5 miles back to his home, and this is exclusive of the physical exercise he is called upon to perform in connexion with the training, and of the walking he may have had to do in connexion with his day’s work. As a boy employed in a coal mine, I had to walk lj miles to the pit head, and when I reached the bottom of the shaft I had to walk % miles to the face. I had to walk the distance back again to reach home.
– And the honorable senator would be walking all the time in the mine if he was a wheeler.
– That is so. No boy could be blamed for objecting, after he has finished a day’s work, to walk 5 miles to the training centre and 5 miles back to his home under our compulsory scheme, no matter how loyal he might be. The reduction of the area might not lead to very considerable increase in the expenditure if the Minister and his officers set to work to prepare a proper scheme for a redistribution of the existing areas. Time and again we require a redistribution of electorates in accordance with the changes of population, and it cannot be supposed that training areas fixed three or four years ago will remain without alteration. We have to recognise fluctuations of population in different districts. Our Australian youths, and our Citizen Forces generally, have also responded nobly to our call upon them, since no fewer than 163,000 are under arms to assist the Empire in the present crisis. We should not in this matter quibble about a little extra expense.
– There is also the question of efficiency.
– I desire to see each unit as efficient as possible. I have no wish to coddle our boys. I believe in teaching them to be manly in every respect, but it is possible to ask them to do too much. With respect to the State Commandant having discretionary powers under the amendment proposed by the Minister, I hope, with Senator Bakhap, that the Minister will not give way on that point. I should be glad if his example in the matter were followed by those in charge of other Departments of State. There is far too much centralization, and I should prefer to see the officers of every principal Commonwealth Department in each State given a little more power than they have to-day. At present all roads apparently lead to Melbourne, and even members of Parliament have to wait for a very considerable time before they can secure definite replies to their correspondence with the various Departments, because it has to go through so many channels. It has been suggested that the State Commandant, being a soldier, would insist upon doing certain things; but I see no reason why strict instructions from headquarters should not be sufficient to meet that objection. I am prepared to vote for a reduction of the distance from a braining centre to the boundary of an area from 5 miles to 3 miles, in order that our compulsory training scheme may be made as easy for our boys as possible.
.- I hope that the Committee will accept the suggestion of the Minister of Defence in dealing with this matter. My experience is the same as that of Senator Bakhap. The only complaints I have received from rural districts in Tasmania is that boys in that district are not being trained. I agree with Senators Needham and de Largie that we should have a greater number of training areas. Every facility should be given to our boys to undergo training. I have in mind the flourishing district of St. Helens, on the east coat of Tasmania. Residents of that district have repeatedly made representations to the military authorities, through me, to secure the establishment of a training area. The boys there are very anxious to be ‘trained, and regard it as a slight that provision is not made for their training. The last offer I conveyed on behalf of the residents of that district to the Minister of Defence was an offer by a retired sergeant-major of the Imperial Forces resident there to undertake the training of the boys at a reduced cost to the Department, inasmuch as he would not require very heavy payment for his services. That offer was not availed of by the Department, because the area was too small, and did not include the requisite number of boys for the purposes of a training centre. But if the area were reduced, as some honorablesenators have suggested, it would mean that the boys in this district would haveto wait still longer to secure any training.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 14 and 15, and title, agreed to.
Bill reported with amendments.
– I move -
That this Bill be now read a second time.
Honorable senators will recognise in this measure a very old friend, and will probably desire to know the reason for the introduction of an amending Bill prior to the proclamation of the original Act.. The primary reason is the desire to give effect within the four corners of our own Navigation Act to the decisions of the International Convention on the safety of life at sea. The Convention was called as a result of the disaster to the Titanic in the Atlantic Ocean. At it fourteen of the leading Powers of the world were represented, including all maritime Powers, with the exception of Japan, which subsequently adopted the Convention. It can, therefore, safely be said that its determinations were unanimously adopted by practically all the maritime Powers. The principal object aimed at was the safety and preservation of life at sea. The Convention met in London in 1913, and its determinations were signed by the whole of the Powers in the same year. Its findings consist of seventy-four articles and fiftyone regulations dealing with the construction of ships, including such matters as the provision of water-tight compart- ments, the efficient manning of boats, provision for life-boats and rafts, and a system of wireless telegraphy for the making of effective calls in the hour of danger. For meeting this special purpose, an International code of wireless calls has been adopted. It is further provided that a Morse lamp of sufficient power and strength to give efficient service shall be carried by each vessel. All possible means for preserving life at sea have been adopted. Australia was represented at the Convention by Captain Collins, who signed the document on our behalf. It is the intention of the Government to adopt the provisions of the Convention, and we are now endeavouring to pass them into law in the form of this Bill. New Zealand and Canada are in exactly the same position. “ The whole of the Powers pledged themselves to give effect to the decisions of the Convention at an early date, and if report speaks correctly, they have all carried out their promise, and Australia is now following in their footsteps. The principal features of the findings are safety of construction, wireless telegraphy, lifesaving appliances and fire protection. It is provided that after a certain date in 1915 any new keel laid down shall be classed as a No. 2 ship. That is to say, it shall be constructed under certain conditions and according to certain specifications which will give a greater guarantee for the safety of life at sea than is furnished by boats hitherto constructed without a plan recognised and adopted by the maritime Powers of the world. It is gratifying to Australia to know that in many respects she anticipated in her own ^Navigation Act many of the decisions arrived at by the maritime Powers. With regard to the sufficient and efficient manning of passenger ships, article 15 of the Convention is almost covered by sections 14 and 43 and schedules 1 and 2 of our own Act. With regard to periodical inspection and survey ofhull, boilers, machinery and equipment, honorable senators may compare article 29 with sections 191, 193 and 199 of our own Act.
– And that is a backward step from the legislation of the whole of the six States.
– The results of the Convention have somewhat impressed me. It will be open to the honorable senator to show in what regard they modify any existing legislation. In adopting them the Commonwealth Government honestly believe that they are adopting the most effective proposals ever made for the preservation and safety of life at sea.
– Every State has a better provision to-day.
– If the honorable senator clearly proves that, I shall have no objection to Parliament adopting the provisions to which he refers, because Australia has reached such a stage of development that she must refuse to lag behind any other country in regard to these matters. Whether the Government in power is Labour or otherwise, I believe this Parliament is too progressive to take a reactionary step in that regard. The honorable senator’s proposals on the subject will, therefore, have a fair field and no favour. On the subject of wireless installation, articles 31 and 35 of the Convention are practically identical with section 231 of the Navigation Act. Article 55 of the Convention compares favorably with section 254 of the Act with regard to the prohibition of the carriage of dangerous goods on passenger ships. Article 54 provides that each life-boat and liferaft shall include in its crew a certain number of certificated life-boat men. On that question, honorable senators may compare sub-section 2 of section 41 of the Act. We propose a new section to follow section 17, to provide by regulation for the issue of certificates as life-boat men to seamen who qualify. In that we adopt the report of the Convention- almost in its entirety. Compulsory boat drills are provided for in article 56, with which section 235 is to be compared.
– Compulsory in the men’s watch below - that is, when they are off duty.
– I am not in a position to discuss details in that regard, but I believe that adequate provision has been made that the men shall understand the boats. It is only a fair thing, whether they are on or off duty, for the men to turn out and equip the boats if it is found necessary ; and I do not believe they will stop to consider whether it happens to be their watch on deck or below.
– What, for drill?
– Perhaps the honorable senator will have an opportunity of dealing with that subject in Committee. I cannot say now whether the men will be exempt during the hours that are, supposed to be their own. Tf they are not I am prepared, and I am sure the Government will be, to give favorable consideration to any necessary amendment when the Bill is in Committee. We propose to amend section 206 to provide by regulation for the periodical trial and operation of water-tight doors and valves, and for musters, and practice, and drills, with a view to action in emergency.
-Colonel O’loghlin. - Are you duplicating in this Bill provisions already made in the Navigation Act?
– No; in some cases we are extending them, and in others we are merely making amendments for the purpose of getting uniform action and a uniform code throughout the maritime world. The intention of the Bill is to embrace in its entirety the report of the Convention as adopted by the maritime Powers. Since the passing of the original Act, a few errors and inconsistencies, as was only natural in a Bill of such magnitude, have been discovered, and we are taking this opportunity of rectifying them, but they are of a very minor nature.
– Why has not the Act been proclaimed ?
– Not because of any desire on the part of the Government to hold it back, but because of the large number of regulations that have to be drafted. In any case, whether this Bill is carried or not, I am given to understand that a considerable time must still elapse before the regulations are ready and the Act can be proclaimed. The Government think that it is just as easy to pass this Bill, in the meantime, in order to keep good faith with the other parties, to the Convention. The Act, together with this Bill, can then be proclaimed at the one time, which will be the earliest date possible.
– That means a further delay in proclaiming the Act of 1912.
– I clearly stated that, in the opinion of the Government, the magnitude of the regulations would prevent the proclamation of the Act, in any case, for a considerable time. The Government believe that its proclamation will not be delayed by one day by the passage of this Bill. As the measure is essentially one for Committee, I trust that honorable senators will give it their earliest and most favorable consideration, in order that Australia may possess, if not the best, at least a Navigation Act equal in all its parts and details to any other in the world.
Debate (on motion by Senator Guthrie) adjourned.
In Committee (Consideration resumed from 18th November, vide page 705) :
Clause 99 -
Before declaring a dividend, the trustee shall cause notice of his intention so to do to be published in the Gazette…..
Amendment (by Senator Keating) again proposed -
That in sub-clause (4) the word “final” be inserted before the word “ dividend.”
– My object in submitting this amendment was to insure that creditors should have notice of when the final dividend in any estate is to be paid. Creditors are always glad to receive a dividend, but notice of any dividend other than the final one is sufficiently given by the payment of the dividend itself. The publication of the notice which I seek would give an opportunity to any creditor who wished to question whether an estate had been dealt with so satisfactorily as to authorize the payment of a final dividend to come in. If in respect of every dividend this procedure were followed, nodistinction would be drawn between a first, an interim, and a final dividend. My proposal, if adopted, would have theeffect of saving the State expense, and it would also be an intimation to thoseinterested as to when the final dividend is to be paid. It would conserve the interests of creditors, and would distinguish between the final and any previous dividend.
– I am not prepared to accept the amendment. The Bill follows the lines of the Acts of the United Kingdom, Victoria, New South Wales, Western Australia, and Queensland, whereas Senator Keating’s proposal adheres closely only to the Tasmanian Act. There is very good reason why we should gazette all dividends. The Gazette notice will enable a creditor who has not proved his debt, upon seeing that a dividend is to be declared,, to put in his claim.
– Very few private- individuals read the Gazette.
– I know that. In view of the fact that the system which we are following has been adopted by an overwhelming majority of the States, I hope that Senator Keating will recognise that the Tasmanian practice does not possess any distinct advantages.
– My amendment did not originate with Tasmania, but with the other States.
– Quite so. But I would again remind the honorable senator that we are adhering to the path which has been followed by the other States, and, in these circumstances, I hope that he will not press for a division.
Clause agreed to.
Clauses 100 to 106 agreed to.
– In accordance with notice, I move -
That the following new clause be inserted: - “ 106a. The trustee shall cause notice of the granting of the discharge to be published in the Gazette.”
The previous clause dealt with the conditions under which discharges shall be obtained, and I am now asking that all discharges shall be notified through the medium of the Gazette. If there be any justification for the publication of every dividend in the Gazette, there is a stronger justification for the publication of every discharge in that journal. I said just now that not many private persons read the Gazette. That is so. But, of course, that publication is read on Saturdays by a number of press representatives who attend the Commonwealth offices. They go through the Gazette and pick out from it matters of interest to their respective States, and these they communicate by telegraph to their newspapers. Outside of this limited circle, however, the Gazette is not very much read. It is usual to make some official announcement to the world at large of the discharge of a bankrupt, and I hope, therefore, that the Vice-President of the Executive Council will see his way to accept my proposal.
– As Senator Keating’s arguments in favour of publication in the Gazette are even better than my own, I am compelled to accept his proposed new clause without protest. His statement that the Gazette is not read, and that at the same time it is a vehicle for the dissemination of public information, is such a logical one that I cannot resist it.
Proposed new clause agreed to.
Clause 107 (Discharge on payment or acquittance).
– A discharge which may have been obtained by a bankrupt as the result of the payment of the whole of his creditors should be honoured just as much as should a discharge which comes in any other form. I should like an assurance that the new clause which has just been inserted will apply to this provision just as much as it does to preceding clauses.
– Oh, yes.
– Then I will let it pass.
Clause agreed to.
Clauses 108 to 117 agreed to.
– In an earlier clause, at a pre” vious sitting, I moved an amendment to provide for the filing of a statement with the Registrar rather than the submitting of the statement to the Official Receiver. When the Minister indicated that he was prepared to accept an amendment to the effect that the statement should be filed with the Official Receiver, and not with the Registrar, I did not consider that that went far enough. I desired that the Registrar should be put in the position of the person who should receive the filed document, and should be responsible for its custody, and I took it from the Minister that it was desired that the Official Receiver should occupy a position in relation to the bankruptcy proceedings which, I thought, should be occupied by the Registrar. As I indicated, there was a number of amendments amongst those I circulated which were designed to bring about that result, and I take it that the Minister is not prepared to accept my contingent amendment in this clause, namely, to leave out “ Official Receiver,” in sub-clause 2, and to insert “Registrar.”
– No. I intend to make a short statement.
– I do not propose to press this amendment, not because I have abandoned my idea that the Registrar would be better than the Official Receiver in the places where I have given notice to amend the Bill, but because the Minister has taken up that position, and has been strongly supported by the Committee. It would be idle for me, and a waste of time, to continue to press the amendments, as they are all consequent on the one I moved before.
– The representations of certain bodies, and particularly those made by Senator Keating, have been brought under the notice of the AttorneyGeneral, whose Department is responsible for the Bill. I am in a position to say now that if it goes through without this amendment being either pressed or carried, the Attorney-General will consider the matter. We did not anticipate that other business would have been dealt with so quickly as it has been. We have reached this Bill earlier than we expected to do, and for that reason this question has not been dealt with by the AttorneyGeneral. When the report stage is reached, we shall go no further with the Bill until the Department has had an opportunity of dealing with the whole question of the Registrar. The decision arrived at by the Attorney-General and his officers will be made known to the Senate ; and if the representations of Senator Keating are ‘to be embodied in the Bill, an amendment to that effect will be accepted when it is recommitted to deal with other clauses.
– With regard to my other contingent amendments to strike out “ Official Receiver,” and put in “Registrar,” I shall not press them at all, but accept the suggestion of the Minister to let the matter go, on the understanding that when the Bill is carried to the report stage it will not be pushed through until proper consideration has been given to this and other questions which have arisen during the discussion. I quite understand that, at this juncture, the Department of the Attorney-General is working at very high pressure in connexion with some of our legislation, extraordinary in consequence of the war, and that, therefore, we could not expect the same amount of consideration to be given just now to matters of this character as to others which are more urgent.
Clause agreed to.
Clauses 119 to 122 agreed to.
Clause 123 -
A trustee shall not, under any circumstances whatever -
– -I have given notice of my intention to move two amendments which I think should commend themselves to the Minister and the Committee. They are really intended to strengthen the clause which, as the marginal note says, provides that a trustee shall not accept an extra beneiit. I move -
That after the word “ solicitor,” line 7, the word “ creditor “ be inserted.
I have also given notice of my intention to move the omission of the words “employed about the brankruptcy,” so that the prohibition will apply not alone to the manager, trustee to the bankrupt, or solicitor, but also to a creditor or other person.
– I am prepared to accept the amendment, because I think it is a reasonable one.
Amendment agreed to.
Amendment (by Senator Keating) proposed -
That the words “ employed about the bankruptcy,” lines 7 and 8, be left out.
– I cannot, accept this amendment, because I think that it would leave the clause too wide. I admit that I have not given to the amendment that consideration which it should have received, but I can see no reason for accepting it. I thought that Senator Keating might be able to lay before me some reason which would induce me to do so.
. I had intended to speak to the amend- ment, but I gathered from the Minister’s statement on the clause that he was accepting both amendments. My object, as I said before, is to prevent a trustee from accepting an extra benefit and to prevent a trustee, being in collusion with any person, from paying over anything which he receives in consequence of his position in the bankruptcy. Paragraph b as it stands provides that he cannot give up the remuneration to any other person employed about the bankruptcy, and the effect of my amendment is tu provide that he shall not be able to give it up to any other person. It is conceivable that there may be collusion or corruption on the part of a trustee in relation to some other person who is not immediately employed about the bankruptcy, and it is for the Committee to express its sense on the point. If. we endeavour to prevent mischief of this kind we should try to do so completely. I suggest that the words “employed about the bankruptcy” be deleted in order that paragraph b may be made as wide as possible.
– The honorable senator, I think, overlooks the fact that this clause deals altogether with persons employed about the bankruptcy. The use of the same words in paragraph a have not been objected to, and they are, in my opinion, just as necessary in paragraph b. I think that if the honorable senator will consider the clause carefully, he will find that the words “ employed about the bankruptcy “ are not out of “place in paragraph b of the clause.
– I see the force -of Senator Keating’s reasoning. It is clear that if what is provided against in this clause be a fraud, it. is equally a fraud whether carried out in collusion with any person employed about the bankruptcy, or with any person altogether outside the bankruptcy. If the clause is allowed to remain as it stands, a fraud under paragraph b may be condoned if it is in collusion with a person in no way connected with the bankruptcy. I had not noticed that until Senator Keating called attention to it. The Minister must admit that it would be possible, by collusion, to convey certain of the profits derived by the trustee to some individual in no way connected with the bankrupt. Because of the peculiar way in which the clause is drawn, such a thing would not be a wrong unless it were proved that the person acting in« collusion with the trustee was connected in some way with the bankruptcy.
– The whole clause deals with persons connected with the bankruptcy.
– That is so. But the Minister fails to see that if a fraud were committed by the trustee in collusion with a person unconnected with the bankruptcy, the trustee might set up the defence under this clause that the person with whom he had been in collusion was not “ employed about the bankruptcy.”
– He might, at the same time, be the greatest friend of the bankrupt.
– That is so, and unless it could be proved that he was connected with the bankruptcy in some form under the clause as it stands, apparently no wrong would have been done. That surely is not the purpose or intention of the Bill, though it would be the effect of this clause. If it be desirable to prevent what this clause is aimed at in the case of a person employed about the bankruptcy, it should be equally desirable to prevent it in the case of any other person. If it is illegal for me to dispose of a certain portion of my property to my uncle, it seems to me that it would be equally illegal for me to dispose of it to my aunt
– I am much obliged to Senator Senior for having’ made the matter quite clear. The clause would prevent the trustee disposing of the property of the bankrupt to persons in any way connected with the bankruptcy. To prevent him from disposing of it to any one at all would be to leave the estate in the hands of the trustee.
– The object of the clause is to prevent the trustee disposing, of his own remuneration.
– I again direct the attention of honorable senators toparagraph a in which the words objected to are used, and I contend that they arejust as appropriately used in paragraph b .
– The whole object of the clause is this: The trustee is to receive the remuneration- he is authorized to receive in connexion with the bankruptcy - no more and no less. Paragraph a provides that he shall not make any arrangement with anybody in connexion with the bankruptcy for any gift, remuneration, pecuniary or other consideration, or benefit whatever beyond that fixed by the creditors. Then, in paragraph b, it is provided that he is to get no less than the remuneration fixed by the creditors. He is not to get it under cover of remuneration, and hand back some of. it to somebody. It is provided that he shall not make any arrangement for giving up or give up any part of his remuneration to the bankrupt, or any solicitor or other person employed about the bankruptcy. The object of my amendment to strike out the words “ employed about the bankruptcy “ is to prevent the trustee not merely from returning a part of his remuneration to the bankrupt, a creditor or solicitor, but to any other person. Conceivably he might return it to a person in no way employed about the bankruptcy, but that person might be in such close relation with one or more of the creditors that through him the part of the trustee’s remuneration given up might go to those creditors. It might be because of such a secret understanding that a certain trustee would be appointed or would be authorized to receive a very high rate of remuneration. The clause as it stands is intended to prevent the trustee paying back any part of his remuneration to the bankrupt or any solicitor or other person employed about the bankruptcy, but it would not prevent him paying a portion of his remuneration to some person not employed about the bankruptcy who might afterwards pass it on to the bankrupt, the solicitor, or a creditor. It is in order to avoid such an arrangement as that that I desire to have the words “ employed about the bankruptcy “ struck out.
Clause, as amended, agreed to.
Clauses 124 to 134 agreed to.
– I move -
That the words “of the trustee,” line 9, be left out.
My object is to make the account verifiable, not only by the trustee, but by any other person, such as an employe- of the trustee. The trustee may not be carrying on the business personally. It may be done, as is the common practice, especially with estates up country, by a member of his own staff, generally a qualified accountant. In such cases the affidavit of the employe might well be received.
– I see no great objection to the amendment, but if it is made who will be responsible for submitting the verified account to the Registrar or Committee of Inspection ?
– The trustee. In most cases, even where the trustee took the affidavit, it would be based on information supplied to him by one of his employes.
– I accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 136 to 139 agreed to.
Clause 140 (Release of trustee).
– I previously indicated my intention to submit an amendment obviating the necessity of the trustee applying for the order of release. I have not the amendment ready, but trust that if I have it ready by the report stage the Minister will have it taken into consideration with other postponed matters.
– The opportunity will be given.
Clause agreed to.
Clauses 141 to 143 agreed to.
– In regard to the heading to Part XL, “ Compositions and assignments without bankruptcy,” I have given notice of an amendment to strike out “bankruptcy” and insert “ sequestration.” In effect, a composition or assignment may be regarded as bankruptcy.
– I think the amendment is unnecessary.
– If it is intended to persevere in the distinction between bankruptcy and the other forms of meeting creditors by way of composition or assignment, I suppose the heading is all right as it stands; but I hope that that course will not be persisted in, but that there will be some realization that sequestration, composition and assignment, and liquidation are all divisions of bankruptcy, and all equally bankruptcy.
Clause 144 -
Senator KEATING (Tasmania [5.20]. - I move -
That the word “ three “ be left out, with a view to insert in lieu thereof “ twenty-four hours.”
These meetings often occur in connexion with small businesses. The creditors may be all practically in the same locality as the debtor, and easily accessible. A speedy arrangement of the affairs of the debtor is desirable, and for that reason I ask the Committee to reduce the minimum time within which a meeting may be called. My object is to make for expedition, which is the important consideration in connexion with assignments and compositions without sequestration.
– If the minimum is reduced to twenty-four hours, a creditor may receive his notice so late as to make it a physical impossibility for him to reach the place of meeting. Three days is short enough notice.
Clause agreed to.
Clause 145 -
– I move -
That the words “distress for rent” be inserted after “ execution.”
It is only reasonable that a debtor should be protected from distress for rent when he takes advantage of the provisions of this part of the Act, just as if his estate was sequestrated.
– I accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 146 agreed to.
Clause 147 -
The creditors may, at such meeting, or any adjournment thereof, by an extraordinary resolution, resolve to accept a proposal for a composition in satisfaction of the debts due to them from the debtor, or a proposal for a scheme of arrangement of the debtor’s affairs, and thereupon the following provisions shall have effect: -
The composition or scheme shall not be binding on the creditors unless, the resolution is confirmed by an extraordinary resolution passed at a subsequent meeting of creditors or some adjournment thereof, nor until after the lapse of seventeen days from such confirmation, and. in the event of the Court appointing a day to consider the composition or scheme, it shall not be binding on the creditors until the Court has approved it.
– I move -
That after the word “ scheme,” line 9, the following words be inserted: - “ (unless the extraordinary resolution therefor shall have, been passed by thrco-fourths in value of all the creditors of the debtor, or shall have heca approved, in writing, by three-fourths in value of all the creditors of the debtor within tlie time and in the form prescribed ) . “
The effect of my amendment, if adopted, will be that when the creditors meet they may resolve to accept a composition or a scheme of arrangement, and if they do so by’ three-fourths in value of all the creditors of the debtor, or if they approve in writing within the time and in the form prescribed of the proposed composition or scheme of arrangement, there shall be no need for the subsequent meeting. That does not mean that threefourths in value of the creditors present at the meeting would be sufficient to approve of the composition or scheme of arrangement, because only half the creditors in value might be present. My proposal would insure that the resolution must be carried by the substantial portion of all creditors of the debtor, whether they be present at the meeting either in person or by proxy. When once they have approved of a composition or scheme of arrangement there would be no necessity for a second meeting of creditors. If, on the other hand, the extraordinary resolution be not passed by this substantial majority, the necessity will still exist for a second meeting.
– This question is under consideration, and, if Senator Keating has no objection, we will reconsider the clause when the other provisions of the Bill are under reconsideration.
– I thank the Minister for that assurance, and ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause agreed to.
– I move -
That after sub-clause (1) the following new sub-clauses be inserted: - “ (1a) The creditors may, by special resolution, at any such meeting or adjournment thereof, resolve that the composition or scheme be rejected, and that a trustee be nominated witli the consent of the Court to apply for, and obtain, a sequestration order, and an order vesting in such trustee the property of the debtor, to bo divided among the creditors in accordance with the provisions of this Act. “ (2a) A copy of such resolution in the prescribed form shall be advertised in the Gazette.” < f:i
The object of my amendment is to insure that if creditors, after having been summoned to a meeting in accordance with the provisions of this part of the Bill, decide that the proposed composition or scheme of arrangement is not satisfactory, they may not merely reject it but may, by special resolution, appoint some person as trustee to apply for an order for sequestration. In other words, they may say, “ The proposed composition is not satisfactory, nor is the proposed scheme of arrangement. We recognise that the affairs of the debtor are in an involved condition, and we, desire that his estate should be sequestrated. We are satisfied that’ only “by the procedure . provided under the Bankruptcy Act can his estate be properly administered for the benefit of the creditors concerned.”
– I am prepared to accept the proposed new sub-clauses.
Amendment agreed to.
– Sub-clause 4 provides that within seven days from the passing of the resolution by the creditors affirming that the debtor shall execute a deed of assignment to a trustee, the debtor shall convey and assign his real and personal estate by deed to the trustee named in the resolution. I think that seven days is an unnecessarily long period to stipulate, and I desire that it should be reduced to two days. I trust that honorable senators will consider that this conveyance should be made as expeditiously as possible. Consequently I move -
That in sub-clause (4) the word “ seven “ be left out, with a view to insert in lieu thereof the word “ two.”
– I shall resist the amendment. To my mind two days is too short a period.
– I think that in this Bill we should follow, as closely as possible, the lines which have been followed in our State Acts. I would point out to Senator Keating that under subclause 4 the debtor is not precluded from conveying and assigning his real and personal estate by deed before seven days have elapsed. Consequently the amendment is unnecessary. I do think that there is some force in the contention that we should keep this measure in line with the State Acts, unless there is good reason for making an alteration in such a way as to give an advantage. I cannot see that a limitation of time will expedite the transaction at all, because it will have to be done within that period. If a man has all the documents with him, the thing can be done immediately after the meeting of creditors is held. I cannot see what can be achieved by an alteration, unless it is to create confusion.
Clause, as amended, agreed to.
Every such deed shall comply with the following provisions: -
The assents shall be given, as regards creditors resident in Australia or having therein a known duly authorized agent, within thirty days from the execution of the deed by the debtor, and as regards other creditors within six months from such execution; ….
– In accordance with notice, I move -
That after paragraph c the following new paragraph be inserted - “ (cc) Provided also that such deed may purport to assign generally the whole estate of the debtor divisible among the creditors under this Act and the first and second schedules hereinbefore mentioned may subsequently be annexed thereto within the time and in the form prescribed.”
The clause, which is rather a long one, provides that every deed of assignment shall comply with certain provisions, which are set out in paragraphs a to c, with a proviso to paragraph c. The object of my amendment is to facilitate the making of the deed. It would enable the debtor to assign the estate without having to wait until the inventories were taken out, which would be comprised in the schedules referred to in paragraphs 6 and c. The deed would not have effect further than to assign the estate generally - that is, all that was available under the Act, and the inventories would be afterwards annexed, not at any odd time or in any odd way, but within the time and in the form prescribed. The regulations would prescribe the time within which the schedules should be annexed. They would also prescribe the form, so that they could not be mere bare skeleton outlines, which gave little proper information. In some cases it is quite possible that the schedules would be available right away when they were preparing the deed, but in other cases they might not be able to schedule all these things, perhaps even within the seven days. Therefore it is desirable that some form of transfer, or assignment, or conveyance should be made out purporting to convey all the property which is properly assignable under the Act, and specify in its own body that these are referred to in the schedules which are to be thereafter annexed to the deed. It would facilitate the conveyance and transfers requisite under this part of the Act.
Amendment agreed to.
– Another amendment, of which I gave notice, is also as to time, and it is to substitute “sixty” for “thirty” in paragraph i. I move - -
That the word “ thirty,” in paragraph t, be left out, with the view to insert in lieu thereof the word “ sixty.”
The object of my amendment is to make sixty days the maximum time within which a creditor may give his assent to the deed which has been executed by the debtor who has taken advantage of this part of the Act in regard to composition or assignment. Australia is a very large country, and, therefore, it may take a little time for necessary information to get through to a creditor. He may not have been present personally or by proxy at the meeting, and it may require a little correspondence on his part to satisfy himself that he is doing the right thing; or he may wish to get into communication with other creditors, who, he thinks, have a common interest with him; and this may, in itself, take a little time. Of course, if he only had to say “ Yes “ or “ No,” without having any inquiries made, or conferring as far as he possibly could by correspondence with other creditors, thirty days might be enough. The longer term would give a creditor some opportunity to make an inquiry of the trustee, or of some other person associated with the composition or assignment, or of some of the creditors. He might want to find out what they are doing. As the period for creditors outside the Commonwealth is to be six months, I think that sixty days will not be too much to accord to creditors here. If the period is left at thirty days, the creditor might in certain circumstances be compelled to sign without having had the opportunity of finding out as fully as he would like all the circumstances, or ascertaining what other creditors far away from the debtor and far away from himself were doing in the matter.
– There is no objection to accepting the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
The form in the first part of the third schedule hereto may be used for any deed under this part of this A’ct, and when so used shall be of the same effect as if it were in the form of the deed in the second part of that schedule.
– I ask the Committee to negative the clause, so that I may move to insert the following new clause -
A deed under this Part of this Act may be in the form prescribed.
The only excuse I can offer for the noncirculation of the amendment in print is the unexpectedness with which we have had to deal with the measure. I think that Senator Keating will see that there is nothing objectionable in the proposal.
– It will fit in, too, with the last amendment. It will cover that.
Amendment (by Senator Gardiner) agreed to -
That the following new clause be inserted - “150. A deed under this Part of this Act may be in the form prescribed.
Clauses 151 to 161 agreed to.
The trustee of every deed shall comply with the following provisions : -
– I have given notice of two amendments in this clause dealing with arbitrary periods of time which I must leave it to the sense of the Committee to decide. In paragraph b of the clause it is provided that the trustee shall file a copy of the deed with the Registrar within fourteen days from its execution by the debtor, and I propose to provide that he should be given thirty days within which to file a copy of the deed. I move -
That in paragraph (b) the word “fourteen” be left out with a view to insert in lieu thereof the word “thirty.”
– I do not yet quite understand the method Senator Keating is adopting in connexion with amendments he proposes dealing with periods of time. I should say that the honorable senator must have been a great athlete, as he sometimes proposes to go full speed ahead, and in other cases suggests a considerable extension of the time provided for in the Bill. T suppose that he is being guided in these amendments by some principle. I recognise the valuable assistance he has given in the consideration of this measure. I have no objection to the present amendment.
– The principle I am following is based upon consultation with those who have had large experience in these matters in the different States. The alterations 1 have proposed are those which have been suggested, by the wisdom and experience of such persons, as improvements upon the Bill as it stands.
Amendment agreed to.
– It will be found that under paragraph c of this clause the trustee is required once in every four months, until the estate is finally wound up, to file in the Court a certain statement. The second amendment, of which I have given notice, on this clause is to permit the trustee to file such a statement once in every nine months. This Bill has been in print for some time and has been widely circulated. I personally have circulated a good many copies of the measure amongst persons in each of the States who have had a large acquaintance with the bankruptcy law. Mr. Hughes, in introducing it in another place in December of the year before last, did so at the close of the session in order that during the recess people acquainted with bankruptcy procedure should be given an opportunity to consider its provisions. The Bill was considered in the following June by a gathering, held in Sydney, of men well versed in bankruptcy law and its administration. I had an opportunity of conferring and consulting with them, and so far as the periods of time are concerned, I am submitting amendments which were suggested as the result of the experience of those persons. I have not’ the slightest doubt that in making these suggestions they were animated solely by the desire to make our bankruptcy law as reasonable and efficient as possible. I move -
That in paragraph (c) the word “four” be left out with a view to insert in lieu thereof the word “ nine.”
– I must oppose this amendment. I think that we should insist that the statement required from the trustee should be filed in the Court at least once in every four months until the estate is finally wound up.
– Such a statement should be filed every quarter.
– That might be an improvement, but in any case it is not unreasonable to ask that it should be filed once in every four months.
– I gave notice of several other amendments upon this clause. I proposed that we should substitute the word ‘ ‘ Registrar ‘ ‘ for the words “ Official Receiver,” in four places. But for reasons which have already been indicated, it is not my intention to press those amendments. I have, however, given notice of an amendment in paragraph h of the clause which, I think, deserves consideration. It is provided by the paragraph that the trustee shall - one month before the final winding-up of the estate, which shall not ho earlier than twelve months from the date of the deed, cause notice to be given by post to each person appearing to be a creditor who has not assented to the deed, stating the amount of the dividend appearing due to him, and that unless he assents to the deed, and claims the dividend within one month from the posting of the notice, he will be excluded from all benefits of the dividend.
It might so happen that the affairs of the debtor would be satisfactorily settled at the time of the filing of the first fourmonthly statement, and in such a case it seems to me that it would be absurd to delay the final winding-up of the estate for the remainder of the twelve months, as required by paragraph h, especially in view of the notice which has to be given to creditors who have not assented to the deed.
– A creditor’s assent is not essential 1
– Not unless he is a very large creditor; but if the necessary number pass the resolutions, he is bound by them. This is a special provision to give him notice, but there may be no reason why the final winding-up of an estate should not be earlier than twelve months from the date of the deed. I move -
That the words “ which shall not be earlier than twelve months from the date of the deed “ paragraph h, be left out.
– I think this is a reasonable amendment, which may be accepted. It is calculated to expedite business.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 163 agreed to.
Clause 164 -
The trustee shall not, within ten days from the debtor’s execution of the deed, realize, make sale, or otherwise dispose of any portion of the debtor’s property, except property of a perishable nature passing under the deed.
– I think that so far as my circulated amendments in connexion with this Bill are concerned, I have now passed the distance post. I have given notice of two amendments upon this clause. I move -
That after the word “deed,” line 2, the words “ or until the assents required for the validity of the deed have been obtained “ be insetted.
This amendment is, to a certain extent, consequential upon an amendment accepted with regard to a resolution being operative when passed by threefourths in value of all the creditors of the debtor, or assented to by threefourths in value of the creditors of the debtor in the manner and form and within the time prescribed.
– There is no objection to this amendment.
Amendment agreed to.
– I move -
That after the word “of,” line 3, the words “except in the ordinary course of business” be inserted.
I take it that this is what was meant by the clause, although, as it stands at present, the trustee would be prevented from disposing of the property in the ordinary way of business. To makesure that that will not be prevented, I submit my amendment.
– I am prepared to accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 165 to 170 agreed to.
Clause 171 -
The trustee of a deed may retain out of the estate, as a remuneration for his care and trouble in and about the execution of the trusts thereof, such a sum of money or percentage as is allowed by the Court, or fixed by the deed and approved by the Court.
– I move -
That the words “ and approved by the Court,” line 6, be left out.
The effect of the amendment would be that the trustee would receive as remuneration such sum or percentage as is either allowed by the Court or fixed by the deed. In the latter case it does not need the approval of the Court, the deed being executed by the debtor and creditor.
– I shall not accept the amendment. We regard the approval of the Court as necessary in either case.
Clause agreed” to.
Clauses 172 to 179 agreed to.
Sitting suspended from 6.20 to 8 p.m.
– I move -
That, in the opinion of this Senate, it is desirable that, as early as practicable, a Constitutional Convention should be summoned for the purpose of considering the need, substance, and form of any amendment or amendments of section 51 of the Constitution, and that such Convention shall -
In submitting this motion, I would remind honorable senators that since our Constitution became operative but few amendments have been made in it, and those amendments - according to the point of view from which they may be regarded - have been either of minor or considerable importance. The only constitutional amendments to which effect lias been given have been those relating to the State debts and the State elections. The first of these aimed at securing an amendment of the Constitution to enable the Commonwealth to take over the whole of the State debts as they existed at the time the Commonwealth assumed that liability. Our Constitution as it was originally framed merely empowered the Commonwealth to take over the State debts as they existed upon the establishment of the Federation. The other amendment effected in our Constitution related to an alteration of the date for holding the Senate elections, and made the term of honorable senators expire on the 30th June instead of the 31st December, the object being to enable the elections for this Chamber to take place in the Autumn of the year instead of about November or December. Concerning these amendments very little difference of opinion existed either amongst the members of this Parliament or the electors, and consequently they were embodied in our Constitution without very much difficulty. But, apart from them, other constitutional amendments of a very farreaching character have been submitted to the electors of the Commonwealth. They have been the subject of considerable discussion both in this Parliament and in the press. The first referendum in regard to them was taken in 1911, when the Government of the day asked the electors to approve of certain very far-reaching amendments of section 51. Another referendum was held in 1913, when practically the same amendments - although in aa different form - were again submitted to the electors, who again refused to indorse them.
– But the number who voted in favour of them was very largely increased.
– Still another proposed amendment of the Constitution was submitted to the people in 1910. Ittook the form of a proposal to incorporate in our Constitution the Financial Agreement which had been arrived at between the Commonwealth and the States. I may add that in this Chamber I opposed that proposition, which was afterwards turned down by very substantial majorities in the different States. When the measure relating to that agreement was before the Senate, Sir Josiah Symon and myself were the only members of the party to which I belong who opposed it. It will be seen, therefore, that I have always endeavoured to consider constitutional amendments solely upon their merits. When opposing the Government proposals iu 1911 and 1913, I did not, either in this Parliament or in the constituencies, adopt the attitude that the Constitution was sacrosanct. I did not join with those who exclaimed, “ Hands off the Constitution !”
– Did not the honorable senator vote for the Monopolies Referendum in 1911 ?
– I wish to consider all amendments of the Constitution free from any party bias, and I have consistently endeavoured to adopt that course. I repeat that neither in this Chamber nor elsewhere have I ever contended that the Constitution is sacrosanct. On the contrary, I recognise that experience has shown us that it is susceptible of amendment, and amendment of a character which will confer considerable advantage upon the community. In saying that, I make no reflection on the framers of our Constitution, or on those who advocated its acceptance in the glowing periods which they employed at the time. The truth is that they did. not realize the extent to which Australia would progress. They did not realize how far governmental functions would obtrude themselves into the activities of the people. We have progressed materially, socially and politically. In other countries, too, governmental activity fulfils a very proper function in many departments of social and industrial life that were not contemplated a decade ago. All the discussion which has taken place in regard to the merits or demerits of our Constitution has centred around section 51. That is quite natural, seeing that that is the section which endows this Parliament with its powers. The thirty-niue sub-sections of that section, which are frequently referred to as the “ thirty- nine articles,”’ measure the powers of this Parliament. If those powers are to be extended, we must bestow our attention upon section 51. If the Constitution is to be amended, we ought to seek the best means of amending it - the means best calculated to achieve the end which we have in view. I am of opinion that experience has revealed, and that principle itself dictates, that no system of party government can possibly produce results comparable to those which would be produced by a system such as that outlined in the motion which I have submitted.
– Would not such a Convention be elected on party lines?
– I will deal with that aspect of the matter presently. Section 128 of our Constitution provides the machinery for its amendment. It sets out that a proposed law for the amendment of the Constitution must pass each House of this Parliament by an absolute majority, that it must be submitted to the electors in not less than two nor more than six months after the date of its passage through Parliament, and that it must be adopted by a majority of the electors in a majority of the States before it can be incorporated in the Constitution. Hitherto it has been recognized that, under our system of party government, the obligation to take any action in connexion with a proposed amendment of the Constitution falls primarily on the Government of the day. Now, we all know that, in ordinary circumstances, any Bill submitted to Parliament by the Government is drafted by the Attorney-General’s Department, or by some other Department of the Commonwealth. We know, too, that wherever party government prevails, Government measures are regarded from a party stand-point. When they are submitted to Parliament, the Ministerial supporters feel that their party loyalty demands that they should give their adhesion to them. When proposed amendments of the Constitution are referred to the electors, the latter naturally look to their representatives to enlighten them as to the character of those amendments, so that they may be enabled to decide either in favour of their acceptance or rejection, and again the party influence makes itself manifest. Those who are supporting the amendment because it has been brought in by the Government behind which they sit will support the amendment before the electors, and advocate its acceptance by them, and will be influenced to a very large extent, and cannot help themselves being so influenced, by party considerations. That influence goes beyond that point; it goes even amongst the electors themselves. So that when it comes to a decision as far as the electors are concerned we cannot eliminate the dominating influence of party strife. This feature of the situation could not be better illustrated than by reflecting on what would be the position of certain men who took up an attitude of hostility to the party they represent in connexion with a proposal to amend the Constitution. If the Government proposed an amendment, and one of their supporters was hostile to it in Parliament, and before the electors, I think that I am not exaggerating when I say that he would, at least in the eyes of many of his own colleagues and many of the friends of his party, be classed as a party suspect. He would feel that in those circumstances he could not give full and free play to his own wishes and views. I have said that in 1909 in the Senate, and in 1910 in the electorates, I opposed a proposal which was initiated, passed through Parliament, and submitted to the electors by the party with which I was associated. I was not standing for election in 1911; I do not know whether it would or would not have made any difference, but I know that I gave expression to my opinion here, and I know that that opinion was emphatically indorsed throughout the States. I know, too, that for a considerable time many of my own friends and supporters, earnest and sincere, pointed out to me that I was taking a very wrong course, in that I was, in this matter, dissociating myself from my party. -I have not the slightest doubt that that would happen to a member of any party who, in regard to these matters, took a course different from that which was being followed by the leaders and the body of his party. It was pointed out to me, in all earnestness and sincerity, that I was doing what was a politically perilous thing. When those are the facts, as I believe they would be in the case of anybody who took up the same position, no matter what party he belonged to, I feel that proposed amendments of the Constitution under present conditions cannot be treated with, nor can they receive, that consideration to which they are entitled, seeing that they are of such paramount importance to us. I think that if we can, in this matter, do anything to free members of Parliament, and the electors, from any dominating influence of party, we shall do a very good work indeed, and anything that we may do towards amending the Constitution under conditions of that character will result in work in which the whole of the community and this Parliament, of to- day and future generations, may deservedly feel proud, and in which they may have the most complete confidence. The Constitution, it must be remembered, is not the property of any party. It is the property of all the people ; it derives its force, its validity, its efficacy, from the fact that it rests upon the assent of the people as expressed at the polls in the several States when they accepted the draft Bill.
– So does this Parliament.
– So does this Parliament. If we have an elected Convention, as I propose, to consider what is referred to in my motion, and to draft proposed amendments of the Constitution, so far as the people are concerned, from the very outset we will promote their interest in the work. We will give birth to an interest in the work which otherwise would not have manifested itself, and having done that we shall find that the people will give their attention to everything that is being done by the Convention so long as it is in session. So the people, who will be the ultimate deciders of whether or not the amendments shall be adopted, will be increased in knowledge of what is proposed to be done.
– Why cannot we do the work in Parliament instead of it being done at a Convention ?
– I will tell the honorable senator directly. The people will watch the proceedings of the Convention ; they will know the ‘ reasons which have been given for and against every part of a proposed amendment. They will know whether the reasons given in support of a proposed amendment have triumphed over the reasons given against it, and we shall qualify the people for a very much more enlightened decision when the matter is ultimately remitted to them. I was asked just now why cannot this also happen in connexion with- Parliament. I will point out again that when amendments are proposed here they are proposed by a Government. They have been drafted by the Attorney-General or the draftsmen of the Government. How many times they have been redrafted and recast nobody knows. The-f come in their final perfected form to Parliament, and it is asked to accept them or to reject them. How the amendments have been arrived at, ‘ although, the Attorney-General of the day or his draftsmen may have spent days and nights over the consideration and the reconsideration of them, the people do not know. They simply know that the amendments are the ultimate result of the labours of the Attorney-General of the day or his draftsmen and of the Cabinet.
– That was not so when the referenda were taken in 1910.
– It was.
– Then both sides represented their views to the electors.
– I have already spoken about that matter. I am saying now that proposed amendments come into Parliament in their final form, and in the form in which they will be submitted to the electors. If we had an elected Convention, from the very first moment that any proposed amendment of the Constitution came forward for its consideration the people could watch its progress. They could observe its being redrafted, recast, or finally tossed aside or something substituted for it. But, as I said before, the greater portion of this work is already done outside of Parliament.
– Not necessarily.
– It is.
– Not necessarily, because you can contradict them outside by your opposition.
– You can only contradict an amendment in the final form. You can take no part in the preparation of it. When it comes to Parliament it is either to be accepted or rejected in either House.
– Or to be amended.
– Yes. The Government of the day - and I am not speaking of any particular Government - will say that it is averse to receiving any alteration, and will assure the House that the proposal has received the fullest and most careful consideration, and that it has not been submitted to Parliament in any hasty way, but has been considered most carefully from all sides. The Government will give its assurance to the House that, having given the matter allround consideration, that is the form which will best meet the ends desired, and Parliament necessarily, naturally, and following its practice, will, so far as those who support the Government are concerned, cheerfully accept the assurance. If those who are not supporting the Government, and who somehow or other nearly always seem to be in a minority, offer any criticism or protest, the weight of numbers will be against them, and the proposal will go straight, as it were, from the department of the Government to the people. The people cannot amend a proposal. They cannot give a qualified answer. They can only say “Yes” or “No.” In fact, what I contend is that both Houses of Parliament are in the same position. They can hardly give a qualified answer to the reasons of the Government to accept a proposed amendment and send it on to the people. My motion, if carried, will, I think, engender an interest in a proposed amendment from the very moment that the people are called upon to elect the members of the Convention. They will take an interest in a proposed amendment, and, once the members are elected, the electors will watch every step in the progress of that body’s labours towards the preparation of any draft proposals to amend the Constitution.
– Will not the Convention be elected on party lines?
– Certainly, and on no other lines.
– I said just now that I was going to deal with that question.
– What about the cost of it?
– I will deal with that matter too, but I cannot deal with half-a-dozen things at once. As I said, a Convention will not only promote an interest on the part of the electors, it will increase their knowledge and qualify them for giving a proper decision. With regard to the form of the motion, I wish to point out that, first of all, the Convention would be charged with the responsibility of considering the need, the substance, and the form of any proposed amendment of the Constitution. I do not intend to-night for one moment to talk about any defects or suggested defects of the Constitution. If the motion were carried, and the Convention were elected, upon its members would devolve, first of all, the responsibility of determining the need of proposed amendments of section 51 of the Constitution; and, having determined that there was a need for an amendment or amendments of the Constitution, the next task would be to ascertain or determine the substance of the amendment; that is the end to be achieved in the amendments. Then it would be the duty and the task of the Convention to put the amendments into proper form. Those would be the steps in the procedure of the Convention. Any one who is familiar with the proceedings of the Convention which framed the Constitution knows that many of the clauses were dealt with first in Adelaide, again in Sydney, and again in Melbourne, and that some provisions which found a place in the draft Constitution at the termination of the Adelaide session, are not to be found in the Constitution at all . The people were enabled by the press reports to follow what was going on. They were enabled to see why a proposed article or clause did not appear in the Constitution in its final form. They were enabled to see why a proposed article or clause originally in one shape, perhaps during the Adelaide session, and perhaps during the Sydney session, was entirely remodelled in Melbourne. My motion also provides that in the Convention there shall be, so far as the States are concerned, equality of representation, and that the number shall be some number not exceeding five from each State. The reason why I have indicated five as a maximum is this : In framing the Constitution, each of the States sent ten representatives to the Convention. The work which would be intrusted to the Convention referred to in my motion would not be the framing of an entire Constitution.
– Western Australia did not send any at all.
– From Western Australia there were only Sir John Forrest and his party.
– That is merely a form of speaking. So far as representation is concerned, therefore, I do not think it should be numerically as strong as if it were a Convention called to frame an entire Constitution. So I suggest five as the maximum number of elected representatives. Another provision I suggest is that the Convention should -
Submit within such time as Parliament determines to the Governor-General and to the Governors of the several States, the draft of any amendment or amendments duly adopted by such Convention.
At first blush honorable senators may ask why this report should be sent to the Governors of the States, but I point out that the Federation is a Union of the States as well as of the people. The States, as States, as well as the whole of the people of Australia, were parties to the existing Constitution. Proposed amendments of it must be adopted by a majority of the electors in a majority in the States. The principle is also recognised in the Constitution of the Senate and in connexion with the writs issued for the election of the Senate for each of the States. After all this is done, I do not propose that the Convention should bring any amendments into operation. That would remain for this Parliament to do under section 128, which provides that any proposed amendments of the Constitution shall have been passed by an absolute majority in each House of this Parliament, and shall then be sent to the people, within a period of not less than two nor more than six months, for acceptance or rejection by them.
– They may be accepted or rejected by either House of this Parliament 1
– That is so.
– Provided we have not another Sir Ronald Munro-Ferguson as Governor-General.
– All this procedure would be regulated and governed by an Enabling Bill, which would be* passed by this Parliament to give effect to the procedure laid down in my motion. Such an Enabling Bill would deal with the details of many matters which might naturally arise in a discussion of this proposal. This procedure may seem to be a little extraordinary. If so, I think it is only by reason of the fact that we in Australia possess a unique Constitution, unlike the Constitution of any other great self-governing people. It was framed by the elect of the people, and was afterwards accepted expressly by the people themselves upon its reference to them. Honorable senators are aware that the Constitution of the United States of America was not accepted by the peoples as such of the thirteen original Colonies composing that Union. Those States have increased in number since the adoption of that Constitution, as large portions of territory then unoccupied by white people have, in course of time, become States. The States have their own Constitutions. I have here a work entitled the A mr.ricam. Federal Slate, by Ashley, published in 1902, and referred to as a text-book on civics for colleges and academies, -which I obtained from the Library. In an appendix at the end of this book there is a table showing how the several State Constitutions in America are amended and revised. I direct the attention of honorable members to the fact that this has relation to the several States, and not to the Union itself. I find from this table that nearly all of the State Constitutions have provided in them machinery for amendment. Several of them follow, to some extent, the procedure I have indicated in the motion now before the Senate. The first instance given in the table is that of the Constitution of the State of Maine, which was adopted in 1875.
– Was not Maine one of the original thirteen States?
– Yes, and Maine had a Constitution in 1819. That was amended and re-arranged by the Chief Justice of Maine and the State Legislature, and Maine received its Constitution in its present form in 1875. The present Constitution is capable of amendment by a Convention called by two-thirds of the Legislature. In New Hampshire, whose Constitution is the original Constitution of 1792, the electors of the whole State vote for a Convention every seventy years for its revision, and any amendment must be ratified by two-thirds of the voters. In the State of New York the electors vote for a Convention in 1916, and every twenty years afterwards. That is the method of revising the Constitution. The constitutional method of amending it is by a majority of the electors of each House, and a majority of the electors of each House of the next Legislature if a new Senate is to be elected, and by a majority of the voters. Then with regard to Maryland, the electors vote for a Convention every twenty years for a revision of the Constitution. So also with regard to Virginia.
– The Convention appears to be a permanent part of their machinery of government.
– It is a regular, recurring institution. Other States, such as Delaware, have their Constitutions revised by a Convention which must be called by two-thirds of the Legislature and a majority of the. voters. North Carolina, by a Convention called by two- thirds of each House, and a majority of the voters. South Carolina, by a Convention called by two-thirds of each House and a majority of the voters. In nearly every instance provision is made for a periodic general revision of the Constitution by a Convention called by a majority of the Legislature, two-thirds of the electors for each House, or by a Convention coming into existence automatically after the expiration of a certain period of time. I do not know that the work from which I have quoted can be said to be up to date. It was published in 1902, and though I cannot place my hands upon the authorities at the moment, I am inclined to think that I have read more recently that, with regard to the revision of the Constitutions of the several States of America, several new and up-to-date provisions have been introduced. The idea of revising the State Constitution periodically has. met with considerable favour,, and I am inclined to think that the principle of revision in that way has been very generally accepted. I receive pretty regularly a good deal of literature from the United States of America dealingwith politics there, and I am under theimpression that I had something which tabulated some of the advances made in this matter of a more recent date.
– As a result of a recent amendment of the Constitution United States senators are now elected directly by the people.
– The honorable senator is referring to the Constitution of the United States as a whole, and the matter to which he has referred is dealt with in some of the literature I have mentioned. It will be seen from what I have said that the idea of revising the Constitution periodically is not new. I have no hesitation in saying that it is one which is growing in favour in the United States of America. I am not asking that we should go to the length of providing for anything like a regular and periodical revision of the Constitution. I do not think it is desirable that a private member of the Senate should initiate such a proposition as that. I have submitted the motion for a certain specific and definite purpose, and in relation to only one section of the Constitution. It is true that that section is the one which gives its powers to this Parliament, and is perhaps in some respects the most important section of the Constitution. I am asking for a Convention of this kind to be elected by the people, so that it may consider the need, substance, and form of any proposed amendments, and in order that they may receive the fullest consideration, and that the people of the Commonwealth, whose property the Constitution is, shall bc from first to last participants in every step taken towards its amendment.
– The honorable senator’s proposal would be derogatory to this Parliament.
– I intend to deal with that.
– I think we should hand the business over to the Legislative Councils of the States.
– I may use that argument against the honorable senator; or, if I do not, some one else may do so.
– There Would have been no Federation if the Legislative Councils of the States had not assented to it.
– They have been sorry ever since that they did.
– They did not know that it was loaded.
– When we consider the steps that were taken before our Constitution was framed and adopted by the people, we must realize that if it had depended upon the Parliaments of the several States Federation would have been very long deferred, if it were brought about at all in our time. When I say the Parliaments of the several States, I am not referring to any one Legislative Chamber in any State. I refer as much to the Legislative Assembly as to the Legislative Council of the respective States. Our history shows that one of the main barriers to Federation was the existence in the States of the several State Parliaments, and the two Houses in those Parliaments.
– That was also used as an argument for Federation.
– Exactly. I say that that was one of the reasons why the State Parliaments opposed themselves to anything in the nature of a Constitution for the whole of Australia, and if it had depended entirely upon the State Parliaments, there would have possibly been no Federation brought about up to now. Quick’ and Garran point out seve ral features of the Federal movement which have a bearing on my proposal. At page 161 of the first edition it is said -
There can be no doubt that the Enabling Bill would have encountered more serious opposition in both Houses had the opponents of Federation realized the importance of the step that was being taken. They misjudged the vitality of the movement, and did not anticipate the stimulating effect of placing it on a popular basis.
– They misjudged about the Labour movement.
– They misjudged the vitality of the movement and the consequence of placing it upon a popular basis. I am asking that the amendment of the Constitution shall be placed upon a popular, not a parliamentary, basis. Parliament has its duties assigned to it under the Constitution, and I propose to deal with that aspect of the question. Quick and Garran say on page 160-
The merits of this scheme (the Enabling Bill providing for a Convention to frame a Constitution) were obvious and notable. It avoided all the great defects of the process of 1891. It secured popular interest by providing that the members of the Convention should bc elected by the people themselves, and that the Constitution should be submitted to the people themselves for acceptance. lt conciliated the Parliaments by giving them a voice in initiating the process, a voice in criticising the Constitution before its completion, and a voice in requesting the enactment of the Constitution after acceptance. In other words., whilst necessarily assigning to a single body, representative of all the colonics, the task of framing the Constitution in the first instance, and finally revising it, it ‘ insured that both the peoples and the Parliaments of the several colonies should be consulted at every stage - in initiation, in deliberation, and in adoption. And lastly, by making statutory provision in advance for every step of the process, it insured that the matter, once begun, should be brought to an issue. No fuller security could have been given that the Constitution would bc based upon the will of the people and of the people’s representatives.
And in the course of the proceedings iti the framing of the Constitution it will be seen on page 187 of Quick and Garran that the Convention, having completed their work for the time being at Adelaide, adjourned till a later date at Sydney. When they met in Sydney Quick and Garran record that -
The business of the Convention involved not only the general reconsideration of the whole Bill in the light of recent discussion, but also the consideration of some 286 amendments, in all, suggested by the ten Houses of Parliament.
I do not propose in this motion that the work of the Convention should be subject to revision and -suggestion by the twelve State Houses, but the Enabling Bill referred to in the motion might well provide, as I have left it open, for more than one session of the Convention to be held at different centres, that the intervening periods shall be of sufficient length to enable this Parliament to consider the work of the Convention.
– You would never reach finality.
– Finality was reached in connexion with Federation, although they had not one but five Parliaments to deal with them. Is it to be said that we could not make quite as good progress as five State Parliaments did in pre-Federation days? My proposition is that this Convention shall submit its proposals within such time as Parliament- itself determines by the Enabling Bill. I do not propose to give ib a free hand. We direct where and when the Convention shall sit, and when and where ib shall submit its reports. I am only asking that the matter shall be put upon a popular basis, and that we shall take the people into our confidence, associating and identifying them with every step in the work of amending the Constitution. It has been said by interjection that the members of the Convention will be swayed by party considerations. Is it to be assumed that their work would be any worse in a party sense than the work done by Parliament? I think not. It would go very hard if it were not better.
– How would you like a Convention of thirty-one Labour men against five Liberals?
– The Enabling Bill would make provision for all these matters, and would, I take it, give consideration to the varying views of the different sections of the community, and opportunity for the expression of those views at a Convention of this character, which would be regarded as far as possible as a people’s and non-party Convention.
– Are you opposed u> party government?
– I am not strong on party government, and if there is one thing for which party government is demonstrably unsuitable, it is the task of amending the Constitution. So long as we are dependent upon any party in power for the first step in the: matter, we shall never , strip any proposed amendment of the Constitution of party significance. We shall never get an elector to dissociate himself from the Party atmosphere when faced with the task of answering “ yes “ or “ no “ to a proposed amendment of the Constitution. It is to avoid that that I submit this motion. It has been suggested that the motion if adopted would in some way derogate from the rights or responsibilities of Parliament.
– How is ib that when the last referenda were .taken the votes in favour of the proposals were not the same as the votes for individual candidates who were supporting them ? I can give dozens of instances to show that the people did geb away from the party atmosphere.
– The honorable member may point bo slight divergencies, bub, taken by and large, the electors were to a great extent influenced by party considerations.
– You are going to shift the issue from a party Parliament to a party Convention.
– Nob necessarily. That will depend upon the Enabling Bill. My proposal will not derogate from the rights of Parliament, or relieve it of its responsibilities. Section 128 of the Constitution will still operate. The proposed alterations of the Constitution will have to be passed by Parliament and submitted to the electors. We know how the Constitution has been dealt with in the High Court, and the wealth of legal argument that can be raised on either side in the interpretation of the different sections. The High Court is the final interpreter of the Constitution, and ib is they who will determine the effect of the amendments.
– May not the High Court declare the recommendations of the Convention to be invalid?
– The amendments would be dealt w 11;11 by us in accordance with section 128 of the Constitution. If the Federal Parliament adopts, and the people confirm, the proposed amendments, they must be constitutionally operative. A great deal has been and will be said about the initiative and referendum. If ever there was a case that justified the principle, it is a case of this kind. The Constitution is popular property, and this Parliament can by passing- an Enabling Bill such as I propose give the people the initiative in the amendment of the Constitution.
– They have it now. We can submit a referendum to them for any alteration of the Constitution.
– That is practically the same thing.
– It is not. The initiative now rests with whom ? With the Government of the day.
– That is a mere form of words.
– It is not a mere form of words - it is an actual fact.
– The honorable senator’s Enabling Bill would be the initiative in this case.
– Parliament, by passing a measure such as is outlined in my motion, would give the people the initiative in respect of any amendments of the Constitution. Indeed, it would give them complete control of the formulation of any such amendments. Whenever proposed amendments had been formulated after due deliberation, public discussion, open session, and within the time, and at places, set out by this Parliament, those amendments would come up for consideration in Parliament, and the course laid down by section 128 would be pursued. After the proposed amendments had passed each branch of the Legislature, they would go by way of referendum to the electors, as provided for in the Constitution. Whatever merits the initiative referendum possesses in relation to matters of government, those merits would be multiplied extensively by adopting a procedure of this character. Nothing could be more vital to the people than the Constitution under which they live when that Constitution sets out the powers of this Parliament, and marks the line of division between the State and the Commonwealth Legislatures. We know that there has been discussion in regard to proposed amendments of the Constitution for years past. Indeed, constitutional amendment is in the air. It has not come down yet to the practical realms-
– It has not got down to earth.
– Exactly. A procedure such as that outlined in my motion would bring it within the realms of possibility. It would inspire the people with confidence in what is being done ; it would increase their knowledge- and endow them with the capacity to act as final arbiters by enabling them to exercise a sound judgment Upon all matters involving an amendment of the Constitution. I submit the motion, and trust that it will receive favorable consideration at the hands cf honorable senators.
.- I think that this motion carries condemnation upon its face. Its first clause is quite sufficient to condemn it. I could understand such a motion being submitted if it could be shown that this Parliament was either hopelessly out of harmony with the opinion of the people of Australia, or that it would not respond to the will of the electors. But I contend that’ the Convention which Senator Keating has suggested should be elected to amend the Constitution would be simply a replica of this Chamber - neither more nor less. What the honorable senator desires is that a replica of this Senate should proceed to draw up and submit to the people proposed amendments of the Constitution.
– The Convention would really be a Chamber of suggestion removed from the atmosphere of party politics.
– This Chamber has been deprived of its right to submit proposed amendments of the Constitution to the people
– I was about to point out that quite recently the party with which Senator Keating is associated dealt a very deadly blow at the power of this branch of the Legislature to deal with proposed amendments of the Constitution. We all know that there is, in the Constitution, a provision which, I venture to say, everybody thought placed this branch of the Commonwealth Parliament in a unique position in regard to initiating and bringing before the people suggestions for the amendment of the Constitution. But the Government of which Senator Keating was a supporter practically nullified the action taken by this Chamber during the last Parliament, and the electors were thus prevented from expressing an opinion upon important amendments of the Constitution, which had been fully debated here, and which had been forwarded to another place in sufficient time to enable it to deal with them if the Government of the day had thought fit to afford it an opportunity of doing so.
– Those amendments may have been fully debated in this Chamber on a previous occasion, but certainly they were not fully debated here last session.
– Then it was not due to the fact that any honorable senator was prevented from debating them. Those amendments were brought forward in the ordinary way, no closure was applied, and full facilities for discussing them were offered. If those facilities were nob availed of-
– Was there not an arrangement between the leaders of the parties which resulted in the measures embodying those proposed amendments being agreed bo practically without debate?
– There was no such arrangement.
– I was certainly under that impression.
– I was in the confidence of the late Senator McGregor, and I am sure that he did not take any action without consulting our party. I say unhesitatingly that there was never a suggestion of any such arrangement having been made. The proposal of Senator Keating implies that this Parliament is incapable of availing itself of the machinery which is provided by section 128 of our Constitution.
– I say that that is due to party government generally, and is not the fault of this Parliament.
– If either of the parties represented in this Parliament place their party interests before their duty bo the Constitution ana bo the people, that is not the fault of the Constitution It is the fault of the parties themselves. There is no obligation cast upon them to take any such action. There is no reason why they should not decide that any proposed alterations of the Constitution shall be dealt with on their merits. The motion which we are now considering is rather a startling admission by the honorable senator that the amendments of the Constitution which have been brought forward from time to time have not been considered from the point of view of their wisdom and usefulness so much as from the point of view of their party advantage. He proposes bo superimpose on the Parliaments which already exist still another Parliament. He desires bo add bo the numerous elections we already have, yet another election. Looking back ab our experience during the past two years, I say unhesitatingly that honorable senators are of opinion that elections come along quite often enough. Bub however much we may feel the inconvenience of these frequent elections, I venture bo say that the electors of this muchelectioneered country feel it still more, and that they are beginning to get absolutely “ full up “ of it, if I may be permitted bo use a colloquialism.
– What will the initiative do for them in that regard ?
– Sufficient for the day is the evil thereof. I merely wish bo point out to honorable senators that if this subject be added bo the initiative and the referendums which may follow, it will mean yet another election. I submit that before we add another election to the already too-frequent elections with which the unfortunate elector has to wrestle, we ought to have some substantial justification for our action. I am glad to be able to draw from the motion submitted by Senator Keating the conclusion that he recognises that our Constitution needs amendment, and that there is a growing demand amongst the people for its amendment. I am afraid that his proposal indicates a desire on his part to flee from the wrath to come. I cannot help arriving at that conclusion, notwithstanding that the honorable senabor shakes his head. There is a Nemesis on his track which he will have to face very soon in regard to these referenda proposals - a growing desire and a rapidly increasing vote in favour of the amendment of the Constitution in the direction proposed by the party which supports thepresent Government. The honorable senator doubtless feels that something mustbe done, if not to stem the flowing tide, at least bo divert ib. Possibly he thinks that the best way to divert it is to refer this matter of the amendment of the Constitution to a Commission.
– Another Inter.State Commission ?
– Yes. The appointment cf a Commission is a device which was frequently resorted to by the late Government. Whenever they were confronted with a thorny problem, their practice was to pass it on to a Commission instead of grappling with it.
– How many Commissions did the Fisher Government appoint between 1910 and 1913?
– I think my honorable friend will find that its record in that respect will bear comparison with the record of any other Government. Let us look at the reasons which have been advanced by Senator Keating for the extraordinary course which he proposes. He says that one of the disabilities of Parliament to deal with the question is that it is dominated by party influences - he is referring, not to this Parliament alone, but to every Parliament - and that you cannot get a1 straightforward and honest consideration of constitutional amendments because of the party influences. Are we going to escape these influences by electing a Convention? Does the honorable senator assume that the parties will call a truce, and that when a Convention is to be elected we shall” all cease to bo for the party, and all will be for the State; that we are likely to forget our party differences and elect the members of the Convention irrespective of party ? My honorable friend is not so unsophisticated as to believe that himself. He knows very well that if his motion were to pass both Houses, and the Parliament were to take action accordingly; the party with which he is associated would not lose a moment in commencing to collect funds, to inspire their party press, to get out in every State a ticket for the Convention, and to attempt as far as they possibly could, by the expenditure of money, by using party press organs, and by influencing the opinion of Australia, to get as many delegates to represent their party as they possibly could. I know very well that the party with which I am associated would be a very good second to them in their efforts in that direction. We would do our be3t to see that we obtained a majority, who would shape the proposed amendments in the way that we thought they ought to be shaped. Wo would get a Convention with the two parties represented, elected on the same franchise as that which is applicable to the election of members of the Senate, and consisting of an equal number from each State. I can imagine the wail of agony which would go up from the Conservative press if a similar result happened at the election of members of the Convention as happened at the last Senate election after a double dissolution.
– There would not be a Liberal on the Convention, would there?
– No. How bitterly the Conservative press lamented the result of that election. If a Convention were elected on the same franchise, and under the same conditions, the result would be the same. My honorable friend opposite, and those who are associated with him, would have to undergo the agony of seeing amendments of the Constitution drafted by the Labour Caucus. They would be subjected to the mortification of seeing the sacred instrument of government placed in the hands of the Trades Halls and shaped by them. One can imagine the leading articles which would appear in the agony columns of the Conservative newspapers over such a dire catastrophe as that.
– Give us the preferential vote in connexion with this motion and we are quite prepared to chance all that.
– I am afraid that our Conservative friends opposite will never be wholly satisfied. In the first instance, each State had its own method of electing the members of the Senate. Inmost of the States the law provided for what is known as permissive plumping. The Conservatives, who sat on both sides of the Senate in the first Parliament, set up a terrible howl to the people about the injustice of that system, because it actuallyallowed eight Labour men to come into the Senate. The little band who sat on the cross benches used to disturb the peace of mind of the Conservatives on both sides, and the latter could not rest. They must have some system by which the eight could be removed, and the government would again be placed in the hands of those who were intended by Providence to shape the destinies of this country. So they laid their heads together - free Protectionists and Free Traders, Government and Opposition - and came upon a happy solution of the problem. “ Not the preferential vote - oh, no - but the. block vote is what we must have,” they said. “ It was never contemplated in the Constitution that the Labour party should have any representation, and we must have some means of getting the majority opinion of the people represented, and nothing but the view of the majority must be expressed here. If in any one State there is a majority of one in favour of a certain view, then only that majority must have a voice here.,” I remember well that when the Electoral Bill was brought forward, on the side of the “Noes” sat that little band of eight Labour members.
– And Senator Keating on the other side.
– Senator Keating and those who were associated with him sat happily here.
– I voted for the preferential system of voting.
– Yes, but this was after the system of preferential voting was proposed. My nonorable friend’s memory needs refreshing. The proposal to introduce the preferential system was defeated because there was a division of opinion among the Conservatives. Then they did find something on which they could agree, and that was the block vote. Here they combined. Every one of them rolled up, and there was great unanimity among them; and opposed to . them was the insignificant band of eight Labour members. The Conservatives seemed very happy when they had carried the proposal, but some of us reminded them that probably they were framing a boomerang, which might come back to them. It did return, and hit them with terrible force; indeed, it has been hitting them with redoubled force ever since. Our Conservative friends have never been happy since they created the boomerang; and now some other weapon must be forged to meet the new circumstances, and to endeavour to bring back the happy days.
– What sinister men those were who first conceived the idea of Federation and consummated it !
– I do believe, and I have believed always, that many of them were so earnest in their advocacy of Federation from very sinister motives.
– I think that there were very good reasons apparent for their advocacy. The great strength of the Labour organizations, the great strength of the Labour party in the State Parliaments, alarmed many good old Conservatives.
– And they gave the adult vote in consequence of that terrible alarm.
– They welcomed the advent of Federation, because, in their heart of hearts, they believed that, with big electorates, it would not be possible for Labour men to finance an election, that it would not be possible for Labour men to be sufficiently well known, especially with . the power of the press directed against them, to permit of the hob-nailed boots of labour entering the sacred precincts of the Senate chamber.
– Whatever powers you possess, I am afraid you do not possess those of a historian.
– Section128 provides a means by which this Parliament, responsive as it is to the will of the people, can from time to time bring forward proposed amendments of the Constitution.
– Provided that the Governor-General is willing, which he was not on the last occasion.
– Even apart from that, under section 128 the party dominant in the House of Representatives can bring forward proposals to amend the Constitution, and can submit them to the people. In that section we have a recognition of the equality of representation of the States, because if the Bills are initiated in the House of Representatives they cannot be submitted to the. people unless the Senate assents to them.
-Colonel O’Loghlin. - They can by passing them twice.
– Yes, and that is the exception. It cannot be argued that the motion is to correct any flaw in the Constitution in that regard. I can only wonder, if Senator Keating desires to strengthen the position of the States in their effective voice in altering the Constitution, that he remained silent during the last session of the last Parliament, that he was quiescent when the Senate took a very important attitude on that question, that he was silent when the Government of which be was a supporter practically took away from the Senate the power, clearly conferred upon it, of submitting measures for an amendment of the* Constitution to the people, irrespective of the consent of the other House, provided that we complied with the conditions of the Constitution. The Constitution was framed by a Convention quite equal to the Convention provided for in the motion, elected by the same people, the only difference being that it was composed of six representatives from each State instead of five representatives, as my honorable friend proposes. Yet when he saw the action that was being taken he was quite complacent. We heard no protest from him. He took no steps to dissociate himself from the party which was dealing such a blow to the Senate. He has entered no protest since then; he has not publicly dissociated himself from that action and from that attitude. In view of that, it is remarkable that he now proposes to establish a body which would practically be the equivalent of the Senate. In short, he thinks that a replica of the Senate should be superimposed on the Parliament to deal with constitutional amendments. There is one feature in which the motion is in conflict with the Constitution, and that is that it altogether ignores the balance between the two Houses - the balance between the equal representation of the States as States and the representation of the electorates, representing the masses of the population of Australia. In the Constitution it is provided that, whilst the States may express their view as States, still the people of Australia as a whole, without regard to State boundaries, can also express their opinion. That, of course, is entirely ignored, and entirely unprovided for in the motion. In the Governor-General’s Speech, the Government foreshadowed their intention to subrait Bills for the amendment of the Constitution. Every member of the Senate will have a full opportunity of discussing the measures, voting for them, and proposing amendments to them; and it will be interesting to know what attitude Senator Keating will adopt. Will he facilitate the reference of the Bills to the people of Australia, or will he oppose them ? If they are not in consonance with his own views, will he submit amendments in such a direction that they may meet his views, or will he again be obedient to the party call, sink his indi- viduality, and put his party before the nation ?
– He will do what he did before with every amendment - deal with it on its merits.
– And they will do as they did before with every amendment that you submit.
– It will be interesting, indeed, to know what attitude Senator Keating will adopt. We shall see what we shall see when the Bills arrive here. We have ho right to multiply elections, conventions, and commissions unless they can render some real service.
– Use that argument when the initiative proposal comes up.
– The initiative and referendum, my honorable friend knows, deal with an entire different set of circumstances. It cannot be said that this Parliament is hindering, or is so constituted that it is likely to hinder, any proposal for the amendment of the Constitution. This Parliament is fresh from the people. We were returned at a recent general election, at which the amendment of the Constitution was made one of the issues, and was discussed from every platform in Australia. The party now in power definitely pledged themselves at that election to the amendment of the Constitution if they were returned to power, and they told the people exactly the lines on which they were prepared to amend it. In the circumstances, can it be said that this Parliament is not likely to give the people the opportunities they require? It cannot. I say, therefore, that Senator Keating’s motion is superfluous. It is not in accordance with the provisions of the Constitution for its amendment, and I, for one, am unable to support it.
Debate (on motion by Senator de Largie) adjourned.
Bill received from the House of Representatives, and (on motion by Senator Gardiner) read a first time.
.- I move -
That so much of the Standing and Sessional Orders bo suspended as would prevent the Bill being passed through its remaining stages, without delay.
In submitting this motion, I may say that the reason why this Bill should be passed as soon as possible is that the Government are desirous of possessing additional powers, which have been found to be necessary as the result of inquiries made. I trust, therefore, that there will be. no objection to the motion.
– The necessity for it has been disclosed by the insufficiency of the Bill which we passed a little time ago.
– That is so.
Question resolved in the affirmative.
.- I move-
That this Bill be now read a second time.
This is an amending Bill dealing with a matter of very great urgency. It provides for three alterations of the Trading with the Enemy Act. It is submitted, not because the principal Act was passed without the consideration it should have received, but because conditions have arisen since that Act was passed, and since a similar Act has been in operation in Great Britain, which have made it clear that wider powers should be conferred upon the Government. In this amending Bill those powers are divided into three heads. In the first place it is proposed to adopt a wider definition of an enemy subject. In this Bill the term enemy subject “ is defined to mean -
Any person who is an enemy within the meaning of any proclamation by the King or by the Governor-General referred to in subsection 2 of this section.
The’ Bill takes a very wide scope by including in the definition also -
Any person, firm, or company the business whereof is managed or controlled, directly or indirectly by, or under the influence of, enemy subjects, or is carried on wholly or mainly for the benefit or on behalf of enemy subjects, notwithstanding that the firm or company may be registered or incorporated within the King’s Dominions.
We recognise that that is a very wide extension of the definition of “ an enemy subject,” but without some such provision much injury might be inflicted upon the Commonwealth which we think it necessary to take steps to prevent. The Bill also gives the Government power to control the business of an enemy subject, and to appoint a Comptroller-General of such business. .
– The amendments which the honorable senator is speaking of have not yet actually been passed by the Imperial Parliament.
– They have been passed into law; but we have not yet received an exact copy of them. This Bill has been drafted on the information we have received regarding the nature of the second amending Bill passed- by the Imperial Parliament.
– I thought it was only in contemplation to pass such a measure.
– The honorable senator will recognise that there is not much time for reflection as to the power which we should have to deal with firms and companies influenced or controlled by enemy subjects.
– In time of war we are prepared to give the Government any power they want.
– While I realize that, I still think it is necessary that I” should give some explanation of this measure. That is due to the Senate when I recognise how ready honorable senators have been to deal with measures of an urgent character. I have said that the Bill gives the Government power to appoint an officer to take control of a business conducted by enemy subjects, to receive moneys payable to enemy subjects, and to control and deal with those moneys. The final control asked for is to be found in sub-section 1 of proposed new section 9, in which it is provided that-
Where any person has reasonable ground for believing that any person, firm, or company to whom he owes money is an enemy subject, he may tender the money to the ComptrollerGeneral, or to any officer of Customs authorized in that behalf by the ComptrollerGeneral, together with a statutory declaration stating the transaction or matter in respect of which he owes the money, and his grounds for believing that the creditor is an enemy subject.
It is then provided that the Treasurer may pay the money to the creditor, his executors or administrators, on demand made after the termination of the present state of war, or before that time, if he is satisfied that the creditor is not an enemy subject. The accounts due to a firm or company of enemy subjects, may be balanced by moneys due by them to our own subjects; and the Bill gives power to the Government to control transactions of that kind. We hope that the powers proposed to be given under this Bill will bo found sufficient. It was hurriedly introduced and passed through all its stages in another place; so hurriedly, indeed, that the printer has been unable, apparently, to keep up with the pace. I am introducing the measure here with the same confidence that representatives of the Government in another place reposed in all sections there.
– The honorable senator must not allude to the proceedings of another place.
– I did so only incidently, and to suggest that the same courtesy might be extended to the representatives of the Government here. As it is against the rules to refer to another place, I shall not do so. If in Belgium or Great Britain an urgent measure of this character received the cordial support of all sides represented in one House, one might be permitted to refer to that as a reason why similar treatment .should be extended to such a measure in the Senate. I recognise that the powers proposed to be given to the Government under this measure are drastic, and that its scope is very wide. In ordinary times, the Government would not expect a Bill of this character to be passed with the expedition which we confidently look for from the Senate in dealing with this measure.
Senator KEATING (Tasmania) [9.401. - The Vice-President of the Executive Council has said, in moving the second reading of the Bill, that the printer has scarcely been able to keep pace with the speed of the Government in dealing with the measure. I am indebted to the honorable senator for having received a few moments ago a copy of the Bill, and I have had time to look at most of its clauses to see how far the measure we passed the other day will be affected by them. I think I can readily support the Minister’s statement that the extensions of the original measure proposed by this Bill are desirable extensions, and such as wo can agree to, relying as confidently on the proper exercise of these powers by the Government as we did when we passed the principal Act. The definition of “ enemy subject “ is necessary, and there is one clause of the amending Bill which seems to have been omitted inadvertently from the principal Act. I refer to the final provision empowering the GovernorGeneral to make regulations for carrying out or giving effect to the measure. was surprised to see this in the Sill. I thought that it must be surplusage; but, upon a reference to the original measure, I find that it does not contain such a provision. The main provisions of this Bill seem to me to be in the spirit of the principal Act, and are necessary to perfect it. I think we have had something like an assurance from the Vice-President of the Executive Council that the Bill follows the lines of the second measure passed in the Old Country.
– That is so.
– As the Government regard this as a matter of urgency, we may accept their assurance, and confidently proceed with the remaining stages of the measure.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clause 2 (Definition).
– Is power given in the Bill toenable the Federal Government to impound any moneys due by Australiantraders to enemy subjects? Manufacturers of woollen goods in the Old Country are owed large amounts by German, firms, because the state of war arose before the date for settlement arrived. Isthere any way by which money due by Australian traders to Germans can be impounded as a kind of set-off? If thereis not, it is about time we acquired the necessary power to bring this about, because up-to-date it would seem that theenemy lias been trading to a large extent upon our resources, and has taken a veryunworthy advantage, especially of manufacturers in the North of England, whohave delivered goods for which they havenever received payment. If any such power is required, the Minister has only lo ask for it, and it will be granted by this Parliament as readily as any of theother powers which he is seeking for in this Bill.
– I can assure the honorable senator with perfect safety that the powers he suggests are within the’ Bill. The wording of the clause is so* wide that it brings within the scope of the powers that we are taking any firms or companies controlled or influenced by enemy subjects, even though they are registered in Australia under an Australian name. We are taking power to secure from such firms any money due or accruing, and to see that no further loss is inflicted upon our own people.
Clause agreed to.
Clauses 3 and 4 agreed to.
Clause 6 (Debts due to enemy subjects).
– This clause probably meets what Senator Lynch wished to provide for. It enacts that debts due to enemy subjects may be tendered to tho ComptrollerGeneral, and that the Treasurer may - not “ shall “ - pay the money to the creditor after the termination of the war, or before then if he is satisfied that the creditor is not an enemy.
– Can we take . power to impound moneys due to German firms?
– I do not know that express power is given in the Bill for that purpose, hut means are provided by which the Treasurer oan obtain the money, and there is no obligation on him to pay it over unless justice demands it.
Clause agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
Senate adjourned at 9.55 p.m.
Cite as: Australia, Senate, Debates, 26 November 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141126_senate_6_75/>.