9th Parliament · 2nd Session
The President (Senator the Hon. I. Givens) took the chair’ at 3 p.m., and read prayers.
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– Did the Government recently print and issue certain postal notes to further the interests of an institution in Tasmania?
SenatorCRAWFORD.- I can answer that question by saying that the Department did not take such action for the purpose suggested.
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The following papers were presented : -
International Labour Organization of the League of Nations - Fifth Conference, held at Geneva, 1923 - Reports by Australian Delegates.
War Service Homes Act - Report of the War Service Homes Commission for the year ended 30th June, 1823, together with Statements and Balance-sheets.
League of Nations- Fourth Assembly, September, 1923 - Bcport of Australian Delegation.
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Duties on ElectricalApparatus.
-BKOCKMAN (for Senator Lynch) asked the Minister representing the Minister for Trade and Customs, upon notice -
Is it correct, as publicly stated by the late Minister for Mines for Western Australia, Mr. Scaddan -
– The answers are -
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asked the Minister representing the Prime Minister, upon notice -
– The answers are -
– Are there not steamers belonging to the Commonwealth Government lying idle in Sydney Harbor to-day? If that be so, cannot some of them be used for the services mentioned by the Minister?
– If there are any steamers belonging to the Commonwealth Government lying idle in Sydney Harbor, they are the property of the Commonwealth Government Shipping Line. I cannot say whether they are suitable for the inter-island trade, but if they are, the Shipping Line will undoubtedly offer them to the Government. I am. inclined to think that they are not suitable.
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Granting of Citizenrights
asked the Leader of the Government in the Senate, upon notice -
Is it the intention of the Government to give legislative effect to the resolutions of the Imperial Conference by granting full citizen rights to Indians within the Commonwealth?
– I feel sure that Senator Reid will not press for an answer to this question, as it involves a matter of policy, with which it is not,as he knows, usual to acquaint the House in answer to a question. I can assure him that the matter is receiving consideration.
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Motion (by Senator Pearce) agreed to-
That leave be given to introduce a Bill for an Act to facilitate the enforcement in the Commonwealth of maintenance orders made in England and Ireland and other parts of His Majesty’s Dominions and Protectorates, and vice versa.
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Motion (by Senator Pearce) agreed to -
That leave be given to introduce a Bill for an Act to amend the Northern Territory Representation Act 1922.
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Motion (by Senator Crawford) agreed to -
That leave be given to introduce a Bill for an Act to amend the Sea Carriage of Goods Act 1907.
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Motion (by Senator Crawford) agreed to-
That leave be given to introduce a Bill for an Act to vest in the Commonwealth Railways Commissioner, and to provide for the management of, the seat of Government Railway.
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Debate resumed from loth August. 1923 (vide page 2766Vol. 105) on motion by Senator Wilson -
That this Bill be now read a second time.
.- Senator O’Loghlin, who secured the adjournment of this debate when the Bill was before the Senate last year, and who has a sheaf of amendments, has been prevented from continuing the discussion to-day. As honorable senators are aware, the bankruptcy laws of Australia arc embodied in six different State Acts, and the consolidation of our bankruptcy laws is one step towards unification, which in my opinion is the only solution of many of our present difficulties. This is a necessary measure, and if it becomes law should be of advantage to the citizens of the Commonwealth. Some honorable senators who have already spoken have explained how the different States Bankruptcy Acts operate, and as one who has always been a strong unificationist I shall do my best to assist in passing this measure if some amendments, which I consider necessary, are adopted. Our bankruptcy laws are very intricate, and in their present form have proved injurious to many people. The Government through the Crown Law Department have very carefully perused the different State Acts and have embodied in this Bill provisions which if they become law will give satisfaction to the people of the Commonwealth. It is a lengthy measure of 222 clauses. After it has been amended in Committee in the way we desire, it is probable that it will meet with the fate of similar measures which have previously been submitted, and another Bill of the same type will be brought down when the Government have no other business to place before the Senate. If on this occasion the Government really wish to place this measure on the statute-book theywill receive assistance from every conscientious member of this Parliament who. desires to do his best to assist Australia in securing self-government in the fullest sense. I doubt sometimes if we are a self-governing dominion, because at times a few men overseas gather together and demand that certain laws shall be passed to suit their commercial interests. Sir Josiah Symon and ex-Senator Keating have in the past delivered excellent speeches on our bankruptcy laws, and I believe we have with us now legal men of equal ability who will assist us in improving this Bill. The measure embodies certain amendments of the existing State laws which should be of advantage in dealing with bankrupt estates, particularly that which makes it compulsory that all estates valued at £300 and under shall be administered officially. Some honorable senators may not agree with the proposal, and may suggest that if a man becomes bankrupt, then whatever his assets or liabilities may be, he should be allowed the same privileges as are enjoyed by others. If a man wishes his estate administered as quickly and as economically as possible the officials will have the opportunity to adjudicate, and I believe that will be of benefit to the poorer people when adversity . compels them to seek the aid of the Bankruptcy Court. Many good men have been compelled through stress of circumstances to seek the aid of the Court, but. in after years have been able to pay off every penny of their liabilities. If this is possible it will save time and the cost of administering the bankrupt estate. The experience in England is that the saving effected by official administration as compared with non-official administration is as high as 50 per cent. That is to say, if the administration under the Court through a non-official administrator would cost £10, officialdom would carry out the task for £5. That, indeed, would be a material saving to those unfortunate persons who are compelled to put their estates through the Bankruptcy Court. The official trustees and assignees in insolvency do not like this proposal, but bankruptcy law is to a great extent a public matter. It has other aspects than that of getting the last farthing out of an insolvent for the sake of the creditors and the trustees or assignees. The public are concerned both as regards the creditor and the debtor, and if it were not for judicial and official control, commercial immorality and the greed of creditors and their hirelings would know no limits. They are only kept within bounds by the law, and a little more tightening up of official control should be salutary, and should have a good effect on those who, once they get an unfortunate debtor into the Court, are only too ready to squeeze everything they can out of the estate for themselves, leaving as little as possible for the creditors and a very small balance indeed for the unfortunate individual who is obliged to seek their aid. I have not a trained legal mind, but in the past I have listened with pleasure in this Chamber to speeches on bankruptcy legislation by honorable senators with trained legal minds, although it is so long ago now that one can hardly remember what was said by them. I am satisfied that this measure has been carefully drawn, and that it will bring about uniformity, but I hope the Government will resist any attempt to introduce parochial amendments designed to bring the Bill into conformity with some of the State laws. We want a Commonwealth bankruptcy law, and not one that will perpetuate many of the existing State provisions that have caused so much trouble in the past. On many occasions men who should have been obliged to resort to the Insolvency Court have been able to defeat the ends of justice by moving from one State to another. In Queensland, I understand, much of what is really bankruptcy business is outsidethe State Insolvency Act - a musty and ancient document.
– It is the best Insolvency Act in the States.
– We cannot stop these claims from the champions of their States; but my desire is to see Australia become a better and stronger nation than any other, and I want to see its laws unified in accordance with the desires of the whole community.
– This Bill is an improvement in that regard.
– The honorable senator would like to incorporate the views of South Australians in this Bill. They are in favour of official control, but they believe that they have invented a system of avoiding bankruptcy by leaving the creditors masters of the situation. I warn the Government to keep an eye on honorable senators representing South
Australia and Queensland, who will be on the alert to have their own State laws incorporated in this Bill, which, in my opinion, ought to be a pure-blooded Australian measure, giving satisfaction to all sections of the community. Oneor two clauses I hope will be amended, and when the Bill is in Committee I shall draw the attention of the Government to them. For instance, under clause 82 (e) a workman is given a preferential claim to £50 for wages. Some people would like to cut out that provision. I hope that the Government will stick to their guns, and even increase the amount. Under clause 89 (d) apprentices are allowed £20 for tools of trade. If those who framed the Bill years ago thought £20 was sufficient to cover the tools of trade of an apprentice, it is only fair that the amount should be doubled now that the cost of those tools has increased by about 100 per cent. The provisions of this Bill should be made as simple as possible, in order to cut down legal expenses. There should be fewer applications to a Judge, and more references, where possible, to registrars, instead of to judges. This is really a Committee Bill, and when we get to work on it I hope that our learned legal senators will take a greater interest in it than they have displayed in the past. I commend the Government again for resurrecting the bones of their grandfathers, so to speak, and setting their officials to work to reconstruct the Bankruptcy Bill, which session after session they bury and rake out again, to give the Senate some work to do. I trust that on this occasion they are in earnest, and that they intend to pass the Bankruptcy Bill this session. When they have done so, I am confident they will make a start on other laws in respect of which we need uniformity if Australia is to be the nation it should be. I have had no practical experience in Courts of law. I have never owed much, and I have always been able to collect, without much trouble, whatever has been owing to me. A man with a hefty punch is better than one who is always seeking the aid of the law. Those who administer the bankruptcy laws ought to aid the unfortunate citizen who has to seek his way through the Courts, but there are men who will not leave the carcass so long as there is any meat on it for themselves. There are many persons operating in this way to-day whom I would drum out of the country. Attempts are made too often to take advantage of the unfortunate industrialists, who are trying, by the preservation and fostering of our industries, to make Australia a good place in which to live. There are too many “ hangers on “ in the community. This wealthy section is able to erect palatial offices in every city of the Commonwealth, a-nd for all these premises tenants are found. With the exception of possibly one-tenth of their number, this section represents an economic loss to the country. Much ia said about the dearth of good mechanics. Senator Drake-Brockman is fond of talking about the bricklayers and the volume of work done by him in a day. I claim that the financial institutions do not care whether bricklayers lay 100 or 1,000 bricks in a day so long as they can spend the money they have extracted from the industrial community. That is a peculiar statement for me to make, but it is a correct one. The pawnbrokers and men of that class force the industrialists to seek the aid of the law to extricate them from their financial difficulties. I should like to take 90 per cent, of that class of people and sink them along with the Australia. I hope that the Government will proceed with the Bill, and that it will soon become law. It should represent the advance guard of many other constructive unified measures that are necessary in the interests of Australia. Under the Commonwealth Constitution this Parliament is given power to deal with certain matters, including laws relating to bankruptcy, but it has signally failed to discharge its obligation in this respect. It has similarly failed to legislate satisfactorily with regard to the marriage laws, and, if this important matter is not promptly attended to, an existing evil will leave its mark on the- Australian nation. I notice that the women of this country are more active in protesting on this account than the men, for they have formed associations in many of the capital cities for the purpose of fighting an evil that is causing much trouble in our national life. Hoping that the Bankruptcy Bill is but the forerunner of a number of other useful measures of a similar character, I shall do my part in expediting the passage of the Bill, believ ing it to be in the best interests of the community.
– It has been said of this measure that it is essentially a lawyer’s Bill, and one for consideration in Committee. I am rather inclined to agree that that is so. and that it does not contain many principles suitable for discussion in a secondreading speech. Despite that opinion I had prepared, in the earlier portion of this session, a speech of considerable length, but the delay that has occurred hi the consideration of the measure has given me an opportunity of thinking again about the matter, and. probably has saved the Senate from the misfortune of having to listen to a technical speech on a dry subject. Although I may make my main contribution to the debate in the Committee stage, there are a few general comments that I wish to offer. We draw our authority for dealing with this matter from section 51 of the Commonwealth Constitution, which gives us power, amongst other things, to make laws in respect to bankruptcy and insolvency. We have had that authority from the inception of Federation. This is the third attempt that has been made by the Parliament to deal with bankruptcy, the Bills having been always initiated in the Senate. I sincerely hope that we shall make further headway this time than on the two previous occasions. It is most desirable to have a uniform bankruptcy law for Australia. All the States have been expecting it for the last twenty -four years, and consequently no amendment of any importance has been made in the bankruptcy laws of the various States during that period. All the State bankruptcy laws, with the possible exception of the Victorian Act, are now very much out of date, and need revision. It happened that all the Statutes of the State of Victoria were revised in 1915, and, incidentally, the bankruptcy law of the State was revised in that year. In all the other States the matter has been most carefully left alone. The oldest Bankruptcy Act in Australia is, I think, that of Tasmania, which was passed in 1872, and the latest is the Victorian Act of 1915, which is really a repetition of an earlier Victorian law. The Queensland Act was passed as long ago as 1874.
– It is working well up to the present clay.
– I expected that interjection from the honorable senator. That Act was framed by, possibly, the best parliamentary draftsman Australia has ever had. I refer to the late Sir Samuel Griffith. At that time it was probably the best Bankruptcy Act in Australia. I admit that it was a good law in 1874. To-day, it is still a good law, but it needs amendment. We have had fifty years’ experience in bankruptcy matters since it was brought into existence, and, during that time, there have been many judicial decisions with regard to that particular Act and to bankruptcy laws throughout Australia and the Empire generally. The present Bill purports to include the result of our experience extending over half a century, and of those judicial decisions. There is really no fundamental alteration in the law. The laws of bankruptcy throughout Australia are identical in principle. There is a slight variation in the sections, but there is no variation in the principles underlying those sections. Senator Thompson wishes us to retain the bankruptcy law of Queensland. Senator Benny, who is in love with the South Australian Act, because he knows it, is anxious to retain in this Bill the provisions of that measure. Letme mention, in passing, that Part XI. of the present Bill is practical!)’ identical with the provisions cowering the same particular section of bankruptcy law in the South Australian Act. The latter measure was also drawn up a number of years ago - I think in 1886 - by a very able lawyer, Mr. Paris Nesbit. who certainly improved on the Queensland Act and other Acts that were then in force. They, in turn, have since been improved. We have in the Victorian law, dealing with compositions and deeds of arrangement, a slight improvement on the South Australian law, and there is also a slight variation of the law that exists in Great Britain. It has been recognised by the persons who conferred on the drawing of this Bill, that there is a lot of merit in the South Australian provisions that have been incorporated in this measure, and also in the corresponding provisions of the British Act, and, I think, the Victorian Act. They, too, have been included in this Bill. I am not sure that it is altogether wise to include both provisions, because it means a little overlapping.
– It is a wise step, because it allows those administering the Bill to exercise their option.
– BROCKMAN. - There is a little criticism of South Australia in my last sentence, and the honorable senator is at once in defence. I am trying to indicate that the Government have endeavoured, by consulting all the persons who really know something of bankruptcy law throughout Australia, and by obtaining their united views and opinions, to incorporate in this Bill the wisdom of the British Empire on bankruptcy law. There are some provisions with which I differ, and I shall endeavour to induce the Government to improve on them ; but, generally speaking, I think the Bill should be accepted by the Senate and adopted as quickly as possible, so that we may have a uniform bankruptcy law for the whole of Australia. I hope that weshall cease to hear of Queensland and South Australia’s bankruptcy laws, and that in future we shall have an Australian bankruptcy law. I shall now deal with some of the statements that were made by Senator Thompson when he was advocating the scrapping of this particular Bill.
– That is not so. I want the Senate to vary certain provisions.
– And to adopt in their place the Queensland Act.
– The honorable senator is quite wrong.
-BROCKMAN . - That is in effect what the honorable senator is trying to induce the Senate to do. He read to the Senate several very long documents that had been prepared by interested parties in Queensland.
Senate Thompson. - They are very able men.
– Undoubtedly, because they put up a very able case. Senator Thompson asked the Senate to accept the opinions of Mr. Joseph Kenna and Mr. Thomas E. White, two very - interested men from Queensland. His argument was that we should retaincertain provisions of the Queensland Act and scrap -some of the most important provisions of this particular Bill. After Senator Thompson made his onslaught on this Bill last year, I prepared a memorandum which I have now before me, but I have not had an opportunity of looking at it since. I have, however, a recollection of the main points of Senator Thompson’s speech and the documents that he read. I have reduced them, and also my answers, to a small compass, and shall place them shortly before the Senate. His first complaint was that this Bill withdraws the control of the estate from the persons most interested, namely, the creditors. He then elaborated at considerable length - or Mr. Kenna or Mr. White, or both of them, did - his complaint, which really resolved itself into two points. The first is that liquidation by arrangement underthe Queensland Act finds no equally effective provisions in this Bill. The second point is that private deeds of arrangement are brought within the scope of the Bill. In Queensland, private deeds of arrangement are dealt with outside the scope and without the control of the Bankruptcy Courts and bankruptcy officials. This Bill provides that all bankruptcy matters, whether deeds of arrangement, deeds of assignment, or sequestration, shall be under the control of the Court.
– A very wise and proper thing to do.
-BROCKMAN . -It is.
– The system for which the Queensland Act provides works very well.
– It may. The creditors are not the only people who have to be considered in these matters. The debtor has also to be considered. What the bankruptcy laws really aim at is the preservation of the commercial morality of the whole community. There must be, under the control of the Courts, not only the debtor but also the creditor. The Queensland Act gives a good deal of power to the creditor, certainly a great deal more than does the Bill before the Senate.
– That is a weak- ness.
– I think it is an improvement. It is very desirable, in the interests of both the creditor and debtor, that the Bankruptcy Courts throughout Australia should have greater control over both debtors and creditors than that existing in Queensland. The Bill before the Senate contains special provisions for liquidation by arrangement, after adjudication of bankruptcy. This provision finds a place generally in State bankruptcy laws, but in the States where there are provisions for private deeds of arrangement it is almost obsolete. However, it is retained in this Bill, so that instead of the Bankruptcy Bill being administered by the Court, it may more effectively place the administration of the estate in the hands of creditors, who, if necessary, will be under the supervision and control of the Court itself. Senator Thompson’s second complaint is that private deeds of arrangement are brought within the scope of the Bill. It will be remembered that the honorable senator frequently spoke about “ the respectable and honest assignee and trustee in insolvency.” He also stressed the fact that there were reasonable creditors and conscientious debtors. I suppose they exist, but there is another side of the case. There are the selfseeking creditor and the dishonest debtor, and we also have to take into consideration the rapacity of trustees and assignees. If I remember correctly, Senator Wilson, when introducing this Bill, anticipated Senator Thompson’s comment in this regard, and dealt with this point quite effectively and fully. Consequently there is no occasion for me to answer further his comments regarding this particular phase of the bankruptcy law, or to deal with his request that this feature of the Queensland law should be incorporated in the Bill in place of the provisions which are there now. The next complaint he made, when dealing with the question of private deeds of arrangement, was that the Bill would greatly increase legal expenses. I do not agree with my honorable friend in that regard. I cannot see that there will be any increase in legal expenses in winding up an estate by deed of assignment under this Bill, as compared with the expenses incurred under the Queensland Act.
– It is done for a guinea in Queensland now.
– The gentlemen whom Senator Thompson represented on. the occasion to which I have referred stated that the legal costs incurred by them amounted only to a guinea. These people were assignees in bankruptcy, and presumably it paid them well to do all the legal work for a guinea, and probably they violated the Legal Practitioner’s Act of Queensland in doing it. Nearly every man who deals with land transactions, and nearly every accountant, violates that Act every day in the week. I refuse to be a party to assisting them to violate it in future. When they tell us that they charge only a guinea, the chances are that they have no right to charge even that amount. The law that we are proposing to bring into force in Australia is virtually the same as that operating in England. If Senator Thompson would consult the bankruptcy statutes of England he would find that there is no complaint of delay, but that the provisions relating to private deeds of arrangement have encouraged this system in preference to straight-out bankruptcy. This is a state of things contemplated with uneasiness by some people as being against the upholding of mercantile morality, but regarded with satisfaction by trustees and assignees in insolvency. Another of my honorable friend’s complaints is that the proposed Bill does not provide for the private examination of a bankrupt on oath by a trustee.
– It is a most desirable provision.
– It is a most undesirable, provision that a trustee in bankruptcy should have the right to take an unfortunate debtor into his private office and, without any witnesses present, and without the ordinary formalities of a Court of law, to crossexamine him regarding his affairs. It is a most objectionable procedure, and the Bill will eliminate it. I suggest that as private deeds of arrangement are coming under strict official control, any necessity that previously existed for such a provision no longer operates. Senator Thompson also complained that the Bill contains no provision for the trial of criminal offences against- the bankruptcy law by a special jury. He contends that for such a purpose a special jury is absolutely necessary. He paid a very high compliment to barristers and solicitors when he said that the average barrister can invariably obtain the acquittal of his client by a common jury. I have not yet heard him make out a case for substituting a special jury for a common jury in this connexion.
– Are not the cases intricate?
-BROCKMAN . - They are quite simple. They are no more intricate than the usual cases that come before common juries. All the jury has to do is to determine facts; it does not deal with questions of law. The best jury to determine facts is a common jury. Why a special jury should be employed for this purpose has yet to be demonstrated, to me at all events. Mr. White, who supplied Senator Thompson with his ammunition-
– Bear in mind that I have had a considerable commercial experience, and that I did not take all my information from Mr.White, although I was glad to be supported by him.
– All I can do is to accept the honorable senator’s speech as he made it in this Chamber. He made a few introductory remarks, and then proceeded to read state- ments, which fill many pages in Hansard, of data supplied to him by two gentlemen named Kenna and White. His speech in this Chamber was a reading of those two long documents. Consequently I must deal with Mr. White and Mr. Kenna, rather than with Senator Thompson. If Senator Thompson had givenhis personal experiences and knowledge he might have made a better contribution to this debate than that which we heard from him.. Mr. Whitehas a very good opinion of the average barrister in Queensland, but he blows somewhat hot and cold. Sometimes he is merciful to the unfortunate debtor, but when it comes to a private deed of arrangement, and ordinary bankruptcy, he argues that the bankrupt should be tried by a special jury in order to secure conviction. The Bill provides for a decided tightening up of penalties’ and procedure with respect to fraudulent insolvency practice. It gives the Court very drastic powers to try summarily a bankrupt who is guilty of an offence punishable by imprisonment. Honorable senators will see, if they examine clause 216, that this is so. The clause reads -
If the Court, in any application foran order of discharge either voluntary or compulsory, has reason to believe that the bankrupt has been guilty of an offence against this Act punishable by imprisonment, it may -
– That is not very clear.
– I do not know what more my honorable friend wants. Not only have we provision for trial by jury - bycommon jury, it is true - but also very drastic and new provisions for summary trial. Those provisions are certainly not in the Queensland Act, although I believe they are in the New South Wales, the Victorian, and the English Acts. When Senator Thompson joins with his friends Mr. White and Mr. Kenna in wails and expressions of regret in this regard, he is acting upon false premises. He also regrets that this Bill contemplates giving a monopoly of estates under £300 to the official trustees, and he contends that such a provision is manifestly unfair and undesirable. He said, “ The whole Bill is drafted with the effect, if not the intention, of enormously increasing the legal costs payable,” and -we have been told that in many cases the legal costs are only a guinea. I am not prepared to believe that Mr. White is an altruist. He probably Tuns his business in the interests of Mr. White. The same statement applies to Mr. Kenna, and, therefore, we need to accept their comments on this point with a certain amount of care. It may not be very desirable from their point of view that small estates should be dealt with by the Court; but the experience of Great Britain is that it is much more economical to have such estates wound up and dealt with by the Court and officials of the Court than by private trustees and accountants. The same experience applies to the small estates of deceased persons. In England they have had experience of dealing with these matters by the Court and by official trustees and private assignees and accountants. Their experience is that it costs less than half as much under the administration of the Court as under the other form of administration. The Bill provides that these small estates shall be administered by the Court instead of under the system operating in Queensland, which, although it is fifty years old, is still advocated by the Queensland gentlemen who are naturally very interested in it.
– It is cheaper and better.
– I have tried to demonstrate that it is not cheaper and not better.
– Surely the charge of a guinea for legal expenses demonstrates that it is cheaper.
– What is the good of the honorable senator talking about a guinea? What is the guinea ? What matters is the total cost of winding up small estates. The legal costs do not come into the question at all. The guinea is probably charged improperly. A mercantile agency has no right to charge any costs. In the document read by Senator Thompson it is stated that such men perform the legal work for one guinea, and it is also mentioned in Senator Thompson’s speech, some portions of which were circularized when this measure was before the Senate last year. If these men do charge one guinea, they are performing a wrongful act. What does that matter? The question is what it costs to wind up an estate. Is it cheaper to do it through the Court, or through tie agency of private individuals ?
– Through private individuals.
– With the knowledge of what is done only in Queensland the honorable senator says that it is cheaper to have the work done by a private individual, but I have information concerning what is happening in Victoria, and what has been, and is now, the practice in Great Britain, so that I am in a better position tojudge than Senator Thompson, whose opinions have been influenced by his advisers.
– I do not think the Melbourne Chamber of Commerce agrees with the opinion of the honorable senator.
Senator DRAKEBROCKMAN.I cannot help that. His next complaint is that provision is made for a minimum remuneration for trustees who administer small and troublesome estates. In this connexion, I find myself somewhat in accord with the honorable senator, having regard to all the circumstances, although sometimes the system he favours has not worked out in the most desirable way. There is something in the contention, and if the honorable senator can put up a good case, he may find me supporting him. Senator Thompson also complained that sections 108 and 109 of the Queensland Act, which deal with fraudulent preference, are not embodied in this Bill. He claims that these sections are peculiar to Queensland, and by experience had proved very desirable. It is said that they make voidable a payment made or security given, which has not a sufficient consideration given at the time of bankruptcy, or which causes the amount divisible among the general creditors to be decreased. These are very useful sections, and have served the purpose in Queensland, but they were drawn up fifty years ago.
– Is everything old unsatisfactory?
– Furniture, china, and wine improve with age, but legislation can often be improved as a result of experience. The honorable senator has claimed that these sections are peculiar to Queensland. The wording certainly is, but their real substance - what they aim at - is peculiar to every Bankruptcy Act throughout the British Empire. Ample provision is made in this Bill to meet all the circumstances which these two particular sectionswere designed to meet. If the honorable senator will refer to clause 90 and the following clauses, he will see that my assertion in this regard is quite correct. He also claimed that preference for rent should bo limited to the value of the chattels on the rented property available for distraint, as is the case in New Zealand. This complaint was also made by Mr.
White and Mr. Kenna, which indicates that they have not examined the Bill as they should have done, and are prejudiced in favour of their own State Act. If they will refer to paragraph g of clause 28 of the Bill, they will find almost exactly what they ask for. I have not dealt as fully with these points as I could have done, but I think I have said sufficient to indicate that, excellent as the Queensland Act may be, and satisfactory as the South Australian Act is, this measure has even more to commend it than those two statutes. I wish now to deal for a moment with one phase of the Bill with which I do not agree.
– Then it is capable of improvement?
– I have said so from the outset, and I propose to show honorable senators in what regard I consider this measure could be improved. I wish to refer, in the first instance, to the doctrine of relation back. If honorable senators will turn to clause 88, they will find that this ancient doctrine is still perpetuated and retained in this Bill. The clause reads -
The bankruptcy of a debtor, whether it takes place on the debtor’s own petitionor upon that of a creditor, shall be deemed to have relation back to, and to commence at, the time of theact of bankruptcy being committed on which a sequestration order is made against; him, or, if the bankrupt is proved to have committed more than one act of bankruptcy, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within six months next preceding the date of the presentation of the bankruptcy petition. . . .
That is a very old doctrine in bankruptcy law. I think it first came into existence during the reign of Queen Elizabeth; it may have been in force earlier than that. When it had its full force and application, it meant that from the date a man. committed an act of bankruptcy all his property was vested in his creditors, even if he were not adjudicated bankrupt until months or years afterwards. The bankruptcy referred back, not to the date of his becoming bankrupt, but to the date when he committed an act of bankruptcy. Although many of his transactions in property might have taken place between the date on which he committed an act of bankruptcy and the date on which he became bankrupt, the property, which had been sold, given away, or otherwise disposed of, was the property of the creditors, and could be recovered by them. With some modifications we are still retaining that ancient doctrine in this Bill. The tendency has been to make the period of relation back shorter and shorter, until under the existing English Act it is only three months.
– In practice, it is really the date of the petition that is considered.
– No ; but I think it ought to be. In Victoria relation back has been dispensed with, and personally I am inclined to think that we would be very wise if we gave this matter very careful consideration.
– In Victoria is it dealt with from the date of the petition 1
– Yes. It is very hard to determine what is an act of bankruptcy, which makes the doctrine more difficult and more confusing in its application. There have been cases where a Court of original jurisdiction has ruled that a certain act was an act of bankruptcy. The Court of Appeal has disagreed, and the case has gone to the House of Lords, where some of the Lords have said that the act was an act of bankruptcy, and others have asserted that it was not. There is considerable difficulty in saying what is an act of bankruptcy even though we have it defined in the Bill. May I give an illustration of the doctrine of. relation back: On the 1st January, “ A “ commits an act of bankruptcy, and on the 1st February “ B “ buys a race-horse from “A” for which he pays £100. On the 1st March “ A “ is made a bankrupt, and the horse has belonged to the trustees of “ A’s “ estate since the 1st January. Consequently “ B,” the unfortunate purchaser of the horse, has to give up the animal to the trustees in “ A’s “ bankruptcy. In short, that is an illustration of the doctrine of relation back. That is the effect of clause 88 which I mentioned and which is a copy of section 37 of the English Act. Probably no community would tolerate this provision unless it were restricted in some way. This clause has been restricted to a certain extent. For instance, it does not apply if “ B” purchased the horse bona fide and without notice of any act of bankruptcy or before the date of the sequestration order. In clause 94 of the Bill a certain amount of relief is provided. To return to the illustration, and in spite of these exceptions, if “ B “ knew that “ A “ had committed an act of bankruptcy, and while that act of bankruptcy still remained available, he incurs the risk of losing his right to prove in the bankrupt estate or to sue “ A.” The doctrine of relation back was dealt with by the Board of Trade, and its report was in the following terms : -
In practice an. almost intolerable situation may be created; for if payment of a, debt is refused or property is withheld on the ground that the person to whom the money is payable, or who owns the property, lias apparently committed an act of bankruptcy, and a- bankruptcy petition is not presented against Mm or he turns out not to have committed an act of bankruptcy, the person who owed the money or withheld the .property might become liable to damages and law costs, although he was always willing to discharge .his legal obligation, and the situation was not created By him in any way.
The Committee made the following recommendation : -
That it is desirable that the present law be altered by providing that nothing in the Bankruptcy Acts shall invalidate a payment or delivery to the bankrupt, or to a person claiming by .assignment from him, if ‘the payment is’ made before the receiving order and before notice of the presentation of a bankruptcy petition, and is made pursuant to the ordinary course of business or is otherwise bond fide.
That recommendation of a committee of the Board of Trade should, I think, be accepted by us. If we included it in this Bill it would considerably improve the measure. The doctrine of relation back is very ancient, dating back, as I have said, to the time of Queen Elizabeth, and I trust that in Committee we shall be able to prevail on the Government to accept an amendment in this direction.
– That is a very wise suggestion.
– BROCKMAN. - Clauses 94 and 95 provide certain limitations to this doctrine of relation back, but although they carry us part of the way, and whittle down still further that ancient doctrine, they do not go as far as does the recommendation of the committee of the Board of Trade. I think the time has come for that doctrine to be wiped out altogether, and for us to accept the position that has existed in Victoria since 1915, with every satisfaction to the community, and without complaints from the commercial people, because there are ample provisions in the State Act, and indeed in the Bill before us, for the protection of creditors and debtors, without the need to retain an ancient and very antiquated doctrine.
– The same wording is to be found in the Queensland Act, but I do not know of any instance where it has actually been put into practice”. The assignee usually does not go back beyond the date of the petition. The Government would be well advised to adopt the honorable senator’s suggestion.
– In a great many cases it is so difficult for the trustee in bankruptcy or official receiver, as the case may be, to trace property in its various ramifications as it has changed hands, that for most practical purposes it is not possible to apply the doctrine of relation back, and it is probably, as Senator Thompson has said, that a trustee in Queensland, in searching for estates belonging to the debtor, does not go further back than the date of the petition in bankruptcy. I could give further illustrations of the extraordinary results of this law, particularly as it affects bankers and solicitors, but I shall wait until the matter comes up for more particular discussion in Committee.I think the Bill should be accepted, and that it should be turned into an Act of the Australian Parliament as early as possible. We have delayed it too long, and I hope that on this occasion the Government are in earnest, and intend to put it though this session, so that it may not be among the slaughtered innocents, as it has been on several previous occasions. The Bill is long overdue. The bankruptcy laws of all the States badly need bringing up to date. Excellent as they have been found in the past, the Queensland law was enacted fifty year’s ago and the South Australian law was passed in 1886. Much knowledge has been gained in these matters since these laws were enacted, and strong though the affection may be that Senators Thompson and Benny have for their respective State enactments, I hold that those laws, along with the rest of the Bankruptcy Acts of Australia, need to be overhauled, as they now are in the Bill before us, which I hope will become law at. an early date.
– Why is the term “ bankruptcy “ preferred to “ insolvency “ ?
-BROCKMAN . - I have not given the matter very much consideration, but when all is said and done it is really splitting hairs to use “ bankruptcy “ as against “ insolvency.”
– “ Insolvency “ would be the better term to use.
– The result is the same whether we use “ insolvency “ or “ bankruptcy.” The ParliamentaryDraftsman has called the Bill the Bankruptcy Bill. He might with equal merit have called it the Insolvency Bill.
– There has been very little hostile criticism of this Bill, and what has been offered has applied not to the leading features of the measure but to particular clauses and specific provisions, and possibly to what may be regarded as omissions. The speeches delivered have, on the whole, been of a helpful character, and I have been pleased to hear so many assurances of assistance in passing the Bill. The Government, who are sincerely desirous of passing the measure, welcome the proffered help of honorable senators, so that it may pass in a form that will effectively accomplish the purposes a Bankruptcy Bill should serve.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clauses 1 to 3 agreed to.
Clause 4 -
In this Act, unless the contrary intention appears- - “ Trustee “ means the trustee in bankruptcy of a bankrupt’s estate and the official receiver when acting as trustee or the trustee under a composition or schema of arrangement or under a deed of arrangement, as the case may be.
Amendment (by SenatorCrawford) agreed to -
That after the word “ arrangement “ second occurring the words “ or under a deed of assignment “ be inserted.
Clause, as amended, agreed to.
Clause 5 agreed to.
Clause 6 postponed.
Clauses7 to 10 agreed to.
Clause 11 (Inspector-General).
– I wish to be assured that this clause is quite necessary. It seems to me that the appointment of an InspectorGeneral in Bankruptcy to perform such duties as may be prescribed will result in setting up within the Attorney-General’s Department a new department with a new staff, having at its head an InspectorGeneral to deal solely with the administration of this measure. It looks as though the procedure would be fairly expensive, and, in view of the general desire for economy in Commonwealth Departments, we should hesitate before we agree to legislation that would lead to the creation of new departments. There are already, no doubt, in the AttorneyGeneral’s Department officers capable of doing this work.
– This clause is considered necessary to obtain uniform administration throughout the Commonwealth. The Inspector-General will be in close touch with the Minister, and will probably have delegated to him some of the powers of the Minister under the Bill. If six State Departments are abolished, it is natural that the appointment of some additional Commonwealth officials will be necessitated.
– Could not the Government utilize the Departments now administering the State Acts? Do the Government intend to make appointments in the various States for the administration of the Commonwealth insolvency law, or will they see that, as far as is practicable, the services of the officers now administering similar legislation in the various States are utilized?
– Some Commonwealth appointments will be necessary, but it is not proposed to appoint any more officers than are actually required. Power is given in the Bill to make appointments.
Clause agreed to.
Clauses 12 to 15 agreed to.
Clause 16 -
As regards the estate of the debtor, it shall be the duty of the official receiver -
Amendment (by Senator Crawford) agreed to -
That in sub-clause (1), paragraph (c), after the word “examination,” the words “ if any “ be inserted.
Clause, as amended, agreed to.
Clause 17 agreed to.
Clauses 18 and 19 postponed.
Clause 20 agreed to.
Clause 21-
A Judge exercising jurisdiction in bankruptcy may exercise in chambers the whole or any part of his jurisdiction :
Provided that the following shall be heard and determined in open Court, namely : -
Applications to consider and the consideration of a composition or scheme of arrangement.
Amendment (by Senator Crawford) agreed to -
That the following words be added to paragraph (c.) : - “ or the granting of a certificate of the validity of a deed of assignment.”
Clause, as amended, agreed to.
Clause 22 (Courts to aid each other).
– This clause provides, in subclause 2, that all barristers-at-law, solicitors, and attorneys admitted to practise in the High Court, or in any Supreme Court of a State or Territory, may practise and be heard in every Court exercising bankruptcy jurisdiction. The suggestion I am about to make may be novel, but I think it will be in the interests of the business community. I have known occasions in bankruptcy jurisdiction where it would have been invaluable, both to the creditors and to the debtors, to have a public accountant to analyze the statements of accounts and place before the Court in a proper way just what those accounts revealed. Barristers and attorneys, although they are learned in the law, generally have very little knowledge of public accountancy, and I think it wouldbe wise in the circumstances to admit public accountants, not to practise, but to be heard in the Court on behalf of either of the parties. There is. no provision for that at present, and I cannot see how it can be accomplishedunder the clause as it stands.
– There is nothing to prevent a public accountant appearing in a bankruptcy case.
– I want to be quite sure that a public accountant, if he so desires, may appear in a bankruptcy case. It sometimes happens that it is in the public interest to have a public accountant interposing and revealing the true facts. I suggest that the clause be amended to include these words - “ Any public accountant may be heard in any Court exercising bankruptcy jurisdiction.” That provision would not confer upon a public accountant the right to be heard irrespective of the Court’s wishes, but would merely give the Court the power to hear him in evidence on matters dealing with the financial con’cerns of the insolvent. I suggest to the Minister that this amendment be incorporated in the Bill.
– I support Senator Duncan’s suggestion. I have known of cases where accountants who have been handling estates of debtors for years and years, have grown so familiar with the provisions of the Insolvency Act as to be able to put a very much better case to a Judge than could any solicitor or barrister practising in the State concerned.
– I should like to know exactly what Senator Duncan desires. In the drafting of Bills we aro informed, and I think rightly so, that “ may “ means “ shall.” Therefore, Senator Duncan is suggesting that a public accountant shall have vested in him under this Bill the same rights as are proposed to be given to all barristers-at-law, solicitors, and attorneys.
– I did not suggest that a public accountant should be permitted to practise in a Bankruptcy Court.
– I would not oppose any proposal that would be in the interests of the community or in the interests of the persons affected, but I fail to see how their interests can be protected by the suggested amendment. There is nothing to prevent a public accountant from appearing in a Bankruptcy Court.
– If he were not a creditor he might not have the right to be heard, and, in the public interest, it might be a good thing for him to be heard.
– If it were to the interest of the person concerned, he would undoubtedly call such an officer as a witness.”
– Barristers appear only at the instance of persons interested in the proceedings.
– Of course, a public accountant would not appear of his own volition. If a barrister considered that it would be to the advantage of his client to call a public accountant as a witness, without any doubt he would do so. I do not support the suggested amendment, as, in this Bill, there is no barrier against such persons appearing before the Court.
– When this Bill becomes law a solicitor will have the right to call witnesses, and. in the interests of his clients he may, if necessary, summon a public accountant: It would not be correct to allow any accountant to appear . in the Bankruptcy Court unless he were called as a witness; otherwise how would the number be limited. I support the clause as it stands.
– I know of instances where, owing to suspicious circumstances, a public accountant, who is an official trustee of an estate with all the data at his fingers’ ends, has had to employ a solicitor or barrister to present a case that he himself could have presented infinitely better.
– A solicitor or a barrister knows the weight of evidence.
– In some instances a public accountant would put a case better than would any barrister or solicitor. I do not know what is the legal etiquette of the Bankruptcy Court, but if the suggested amendment can be inserted in the clause it will be a step in the right direction.
– I support the sub-clause as it stands. Public accountants do not really know the weight of evidence, and do not understand how to call evidence. Only barristers-at-law, solicitors, and. attorneys should have the right to practice in a Court exercising bankruptcy jurisdiction. The right to conduct these cases should be given to responsible officers of the Court who are in turn responsible to the Judge. The Bankruptcy Court is a branch of the High Court of Australia, and the legal profession are responsible for the evidence they bring before it. There is a certain responsibility attachable to them. We should permit not outsiders, but only people who understand the laws of evidence, and who will not prolong litigation at the expense of the parties concerned, to practise in the Bankruptcy Court.
– I cannot accept the suggested amendment, which contains no mention of the qualifications of public accountants whom it is proposed to admit to the Bankruptcy Court. The suggestion by Senator Duncan is that any person practising as an accountant shall be given the same status in an Insolvency Court as is given to the legal profession. Perhaps the honorable senator has overlooked clause 16, sub-clause 2 of which reads -
When the bankrupt cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions, and at the expense of the estate, employ some qualified person to assist in the preparation of the statement.
Under this Bill the official receiver will be an expert accountant, who may employ expert accountants to aid him in his examinations.
– Even the Minister will admit that occasions arise when expert accountants have to be engaged to assist barristers and solicitors to prepare their cases. There appears to be some confusion in the minds of the Minister and other honorable senators as to what practising in a. court means, and what being heard in a court implies.
– What is the difference?
– My honorable friend is permitted to practise in a court, but there may be a time when it is impossible for him to be heard there.
– Every witness that is called is allowed to be heard.
– The point is that the witness has to be called. I have clear recollections of cases where a debtor and a creditor have agreed, against the public interest, not to reveal the true facts. Big bankruptcy cases very often involve other issues than those between the debtor and the creditor. The interest of the man in the street and of the worker in an industry is involved. Solicitors and others very often lose sight of these things, as they are carefully kept in the dark.
– If it were a question of wages owing to workers, they would be creditors.
– A public accountant is not a person without credentials and qualifications. Many of them are superior even to lawyers of the standing of Senator Benny.
– They are always ready to make confusion worse confounded.
– That is entirely limited to the legal profession. If the Government wish to prevent confusion becoming worse confounded, they should wipe out this clause altogether, and prohibit solicitors, barristers-at-law, and attorneys from appearing in a bankruptcy case, leaving it entirely an issue between business men having a thorough knowledge of the bankruptcy laws. Public accountants are qualified persons. Many of them have passed examinations which some solicitors and attorneys could not pass. I suggest not that they should be permitted to practise in a Court, but that they should have the right to be heard in Court when it is in the public interest that they should be heard.
– Should they make application to be heard?
– Yes, to be heard in the public interest.
– Although they are not parties to the case?
– Yes. The possibilities are that no public accountant would deign to appear for such an insignificant fee. He would leave that work to the barristers-at-law, attorneys, solicitors, and other small fry.
– Will the Government agree to insert a provision that official trustees may be heard before the Court? I have made out a strong case for them to be heard. The official trustee has the case at his finger tips, and- can present the facts better than any barrister.
– The official receiver is the man who will go before the Court and make the necessary examinations. That is provided for in another part of the Bill. The status of official trustees is, such that they will be permitted to appear before the Court.
Clause agreed to.
Clauses 23 to 38 agreed to.
Clause 39 (Enforcement of process throughout the Commonwealth).
.. - Are the provisions in this clause similar to those in the Acts of the different States?
– In effect they are. Similar provision exists in four of the States, and in the English Act.
Clause agreed to.
Clauses 40 to 42 agreed to.
Clause 43 (Gazette to be evidence).
– Does the word “ Gazette “ mean the Commonwealth Government Gazette?
– Yes.
– There are Government Gazettes in each of the States. I would like to be assured that interested persons will have an opportunity of seeing the notices that will, from time to time, be printed in the Commonwealth Government Gazette. That publication has a very limited circulation. “Will the people in the different States have easy access to it when it contains notices of moment to them? The Gazette is published only once a week, and is perused by very few people. I am certain that many matters of moment published in it have not been brought to the notice of the persons concerned.
– At present these notices are published in the State Government Gazettes, which also circulate among a limited number of people. The difficulty referred to by Senator Findley is overcome very satisfactorily in practice. Certain publications, which have varying names in different parts of Australia, are subscribed to by all lawyers and accountants, and by the principal mercantile houses, retail and wholesale. All notices published in the Government Gazettes affecting bankruptcy, bills of sale, judgments, and such things, are reprinted in those publications, and thus reach all the people who need to know of them. Such people do not read the Government Gazettes, but they get from them all the information they require. The information is brought to their knowledge in a much more certain way than if it were advertised at very great expense in all the daily newspapers in Australia.
– The publications referred to by the honorable senator would not be admitted as evidence.
– BROCKMAN. - That is so. The Gazette is evidence to the Court. As it is the official publication, it must necessarily be evidence before the Court.
– I am not satisfied with the reply of Senator Drake-Brockman.
– I was giving, not a reply, but information.
– It is not even information. The publications to which the honorable senator has referred will not be of any assistance to the bankrupt, who may or may not receive them. I would not like to be regarded as evidence that I was a bankrupt a mere notification to that effect in the Gazette. The clause reads - (1.) A copy of the Gazette containing any notice inserted therein in pursuance of this Act shall be evidence of the facts stated in the notice. (2.) The production of a copy ofthe
Gazette, containing the notice of a sequestration order, shall be conclusive evidence in all legal proceedings of the order having been duly made, and of its date.
Even if I did not see a copy of the Gazette, such a notification would be regarded as evidence of bankruptcy.
– It is rebuttable.
– It may be, but I should first be served with a notice independent of any notification in the Gazette. Senator Drake - Brockman realizes that, owing to the constant movement of population, a person might be in Melbourne to-day, and in Meekatharra or Longreach a few days later, in which case he would not see the Gazette notice. Honorable senators opposite, particularly those who have an intimate knowledge of bankruptcy law, should assist in amending the clause.
– It is only a question of evidence.
– But the clause is mandatory.
– There is a similar provision in all existing Acts.
– In replying to Senator Thompson, Senator DrakeBrockman stated that there was no reason why a law in operation in 1874 should be reenacted to-day. The honorable senator will realize that the clause should be amended, but if he can assure me that a bankrupt will be notified directly, either by letter or in some other form, independent of notice in the Gazette, I have no strong objection to offer. I would suggest amending the clause by inserting the word “ Commonwealth “ after the word “ the “ and before “ Gazette,” so that it would be known that the Gazette mentioned was the Commonwealth Gazette.
– “ Gazette “ means the Commonwealth Gazette. That is provided in the Acts Interpretation Act. In regard to the other point raised by the honorable senator I may explain that a similar provision is to be found, I think, in every Bankruptcy Act in operation in Australia to-day. The point raised by Senator Needham concerns one of evidence to go before the Court, and does not affect the knowledge which the bankrupt himself will certainly have in regard to bankruptcy proceedings, which cannot happen without his knowledge. The Gazette notice is only a record for evidence of what has happened. Bankruptcyproceedings cannot be instituted without the knowledge of the bankrupt. Instead of the Commonwealth going to the expense of publishing the facts throughout the Commonwealth, the official record of what has happened has merely to be produced.
– I do not think Senator Needham need be under the misapprehension that any one will be inconvenienced in consequence of this clause, because notice in connexion with proceedings has to be published in the Gazette, and the persons principally concerned are the creditors and the debtor, but mainly the creditors. In every State there are mercantile gazettes, which practically every business person receives, in which appears such notices, taken from the Gazette. Dates of meetings of creditors, and insolvency petitions are mentioned, and the creditors, who are naturally interested, receive notification in that form. The debtor, as Senator Drake-Brockman has mentioned, knows only too well where he stands.
Clause agreed to.
Clauses 44 to 71 agreed to.
Clause 72 (Committee of inspection).
– This clause provides -
The creditors qualified to vote may at their first or any subsequent meeting by resolution appoint from among the creditors, or the holders of general proxies or general powers of attorney from the creditors, a committee of inspection, for the purpose of superintending the administration of the bankrupt’s property.
I have a detestation of proxies, and I was wondering if it would not be sufficient for the protection of the creditors, while insuring that the debtor honoured his obligations, to provide that the committee of inspection should consist solely of creditors.
– Some of the principal creditors might not be in a position to attend in person.
– They should make it their business to attend on such an important occasion as that of declaring a man bankrupt. I think the clause ought to be amended to limit the committee of inspection to creditors attending in person.
– If the honorable senator’s suggestion were adopted creditors would be deprived of a recognised legal right, that where it is impossible for them to attend in person they may be represented by proxies or attorneys. The principal creditor of a bankrupt might carry on business overseas, and could not possibly be represented at a meeting of creditors except by an agent, while those who. could attend might represent a very small proportion of the total liability of the debtor.
Clause agreed to.
Clause 73 agreed to.
Clause 74-
Every bankrupt shall, unless prevented by sickness or other sufficient cause -
– I would like the Government to insert in this clause the following provision from the Queensland Act : -
The insolvent shall submit to such examination, upon oath or otherwise, by the trustee in respect to his property, for which purpose the trustee shall have power to administer an oath.
This has been found to be most useful in Queensland. The cost of holding an examination before the trustee is trifling, and yet it is nearly as effective as an examination before a Judge, which costs from £40 to £50, excluding the expenses of the shorthand writer, who is always employed. It often happens that an examination before a trustee in private is better than an examination before a Judge. A man who is honest and has no desire to conceal the full state of his affairs, can have no objection to answering the trustee on oath, and as this practice has been found useful in Queensland, I ask the Government to insert in the Bill the provision I have suggested.
– I cannot accept the honorable senator’s suggestion. The clause already provides for a public examination by the creditors, and the debtor is liable to prosecution if he does not answer truthfully. Provision is also made that he may, if necessary, be examined in open Court.
– That is the expense I am seeking to avoid.
– But such examination in open Court would only be necessary if the replies given by the debtor at the examination before the creditors were such that his veracity was open to doubt.
– If this Bill becomes law, certain powers will be conferred on the Courts in which bankruptcy proceedings are taken, and the persons who appear in those Courts will be responsible for the evidence they give. They will be sworn. Does Senator Thompson propose that a public trustee shall be clothed with the power that this Bill confers upon the Court itself ?
– Yes; the creditors’ trustee.
– The only reason the honorable senator has advanced for his proposal is that Court proceedings are costly.
– The difference between the clause and Senator Thompson’s proposal is that, under the clause a debtor may be found guilty of contempt of Court whereas under the honorable senator’s proposal he may be found guilty of perjury.
– In what way could the debtor be found guilty of perjury ?
– The Bill provides machinery to compel a debtor to disclose all his effects. What more is required ?
– There is no ambiguity about the clause, in that respect, but I am inclined to think there would be a good deal of ambiguity in the provision suggested by Senator Thompson if it were incorporated in the Bill.
– Senator Thompson’s proposal is to set up a sort of star chamber tribunal presided over by the trustee appointed by the creditors.
– Do not talk about “setting up.” The provision I suggest has been the law in Queensland since 1874.
Senator . DRAKEBROCKMAN.Senator Thompson is anxious to spread all over Australia a system which exists in Queensland, and he urges it on the ground of economy.
– And efficiency.
-BROCKM AN . - Let us examine what actually does happen. In various States there are provisions similar to those set out in the clause. After the meeting of creditors where the bankrupt has to be present and has to give all the information he can for the assistance of the creditors, he goes before the Court for his public examination on oath. The examination is conducted by the Official Receiver in Bankruptcy. Outside lawyers are not brought in unless some of the creditors wish to bring them in. But there is no occasion for their presence. The Official Receiver is a man specially trained in this class of work, and it is his business to examine the bankrupt, or the man who has called a meeting of his creditors. He conducts that examination in open Court and on oath,, and extracts the fullest information in regard to the debtors’ affairs or assets. Everything that a private, star chamber examination could possibly extract would be obtained by the examination by the OfficialReceiver in Bankruptcy. The proceedings are open. Any person interested may attend. The creditors and the debtor are guaranteed protection, and the public are given the same security. The open nature of the proceedings assists in maintaining that high standard of commercial morality at which all bankruptcy laws should aim. The Committee should not accept Senator Thompson’s amendment.
– I hope that the Committee will adhere to the clause as printed, and not accept Senator Thompson’s amendment.
– No amendment has been moved.
– I shall move an amendment.
– I trust that the Government will not accept any amendment to this clause. The Bill provides that a bankrupt must attend the first meeting of his creditors, and disclose everything connected with his property and his estate. He must deliver to the Official Receiver all books and so forth relating to his estate.
– That is all right. Those provisions must be retained.
– If a debtor fails to fulfil all these conditions he is guiltyof contempt of Court. I agree with Senator Drake-Brockman that we should not attempt to revive the methods of the Inquisition, but should recognise the old British maxim that no man is obliged to incriminate himself. A bankrupt should not be in a worse position than a criminal, who, if accused of murder, can say to his accusers, “ You prove what is alleged against me.” Honorable senators opposite, like members of the legal profession, know how unjustly a poor insolvent is sometimes treated. The onus of proving the justice of his case is placed on him. It might be impossible to do that. “We ought therefore, to protect the insolvent. Senator Thompson seeks to amend the clause so that there shall be an additional onus and strain upon the unfortunate debtor, who has all the world against him and is being crushed out of existence. The true principle of British justice is that it is not the debtor’s duty to prove anything. That duty devolves on the creditors. Senator Thompson’s amendment would expose the debtor to a prosecution for perjury. I appeal to the Committee to say that no man should be obliged to incriminate himself. I strongly urge the Government to adhere to the clause as it stands.
– I cannot agree with the extraordinary reasoning and exaggerated language of the honorable senator who has just resumed his seat. Whenever a debtor has to report to his’ creditor’s trustee he has to give an account as to where his assets lie and reveal everything connected with them. All that is done in Quensland - and done successfully, too - is to put the insolvent on his oath. The trustee then obtains a true statement. It is not a question of the debtor committing perjury. The Queensland plan is simple and economical. If creditors have to go to the Court to make inquiries it costs a great deal, and they often receive nothing. Senator Benny’s sympathies lie with the insolvent, but I maintain that very often the creditor rather than the debtor is deserving of sympathy. I move -
That the following new sub-clausebe added: - “ (3) The insolvent shall submit to such examination upon oath or otherwise to the trustee in respect of his property, for which purpose the trustee shall have power to administer an oath.”
– I am glad that Senator Thompson has at last submitted a concrete amendment, and I hope that the Committee will reject it, because it takes one back to the dark ages when accused men were called upon to prove their innocence. In modern timesit is for the creditors to prove the guilt of an insolvent. I cannot believe that honorable senators will resort to such a barbaric practice as to compel a man to prove his innocence.
– I am only asking that heshould make a statement on oath.
– That amounts to asking him to perjure himself.
– The average Australian is prepared to tell the truth under any circumstances. In view of the far-reaching effects of the proposed amendment I hope the Committee will definitely reject the antediluvian methods now advocated by Senator Thompson.
Senator Thompson. - According to Senator Drake-Brockman some of the provisions of the bankruptcy law date back to the time of Queen Elizabeth.
– I regard Senator Drake-Brockman as a member of the new school of political thought, and I look upon Senator Thompson as “ The last of the Mohicans,” as far as this class of legislation is concerned. Part V. of the Bill seems to be sufficiently comprehensive to provide what Senator Thompson desires.
-What is the meaning of thewords of the amendment., “ on oath or otherwise “ ?
– They mean an examination on oath, or not on oath, but viva voce.
Amendment negatived.
Clause agreed to.
Clause 75 - .
The Court may, by warrant addressed to any constable or prescribed officer, cause a debtor to be arrested .
– Will the Minister explain the meaning of the words “or is about to abscond “ ? It appears that that phrase would give extraordinary latitude to the Court. Whilst the authorities would know when a debtor had absconded, how could they tell when he was about to abscond.
– He might have booked his passage overseas.
– The mere fact of having booked a berth on a train or boat, say from Brisbane to Sydney, would be no proof that a man was about to abscond.
– It is left to the Court to decide if there is reason to believe that he is about to do so.
– The Court has to be satisfied.
– I fail to see how the Court can possibly determine when a man is about to abscond.
– If he left Queensland and arrived in Western Australia the day before he was to appear in Court in Queensland, would it not be fair to assume that he intended to abscond?
– No ; I want to disabuse the minds of honorable senators on that point. Suppose that I were indebted to Senator Crawford, in Brisbane, and I left by the transcontinental train for Kalgoorlie, would that disclose an intention on my part to abscond ?
– No.
– Then would I be about to abscond ?
– Not necessarily; but if the honorable senator had booked his passage from Perth to London, would that not be evidence of his intention to abscond ?
– That is difficult to prove. Even if I book a passage on a vessel from Brisbane to London, is that proof that I am about to abscond ? The words “or is about to abscond “ should be carefully considered before being permitted to remain in the clause.
.- I trust that there will be no alteration in the clause. No gate should be left open to any man desiring to evade his just responsibilities and debts to a citizen or to the community. Provision is made in the Bill to deal with absconders. The Court should have full power to arrest any person who, in its opinion, is making arrangements to abscond. If this Bill becomes law, debtors will not have the opportunity to abscond that they have had for years past in the different States. There will be a general tighteningup, tending to prevent the operations of those persons who, during the last two or three years; have gone into business with a bad reputation and with little or no money, much to the misfortune of financial “ mugs,” who have been left lamenting. Under this Bill there will be a better opportunity to prosecute absconders, who should be given no possible chance to escape their just responsibilities.
– It seems to me that, in objecting to the words “ or is about to abscond,” Senator Needham is on the right track, although the principle is not so strongly accentuated under this clause as it was in the preceding clause, on which I had the misfortune to conflict with the views of Senator Thompson. The phrase “ or is about to abscond “ is altogether too wide. It is true that the Court may use its discretion if it has reason to believe that a person has absconded or is about to abscond ; it is true also that there is a marked differentiation between this and the preceding clause, where it was the right of the criminal to have his guilt proved against him, instead of having to prove his innocence.
– Does not the honorable senator think that the Court would require conclusive evidence of guilt?
– No doubt; but Senator Needham is on the right track. We should not allow a Court of Justice to decide abstract principles. Senator Needham very wisely asks what is the meaning of “about to abscond.” It is possible that on taking a trip to Sydney or Brisbane he might be arrested and subjected to the prescribed penalties because a creditor had charged him with being about to abscond; whereas his motives might have been the most innocent. If Senator Needham moves an amendment in the direction that he has indicated,I shall certainly support it.
– I shall certainly support the clause as it stands, not alone for the sake of the words as they appear in the clause - since in that respect I consider that the Court is amply qualified to decide whether an examination is justified - but because of another principle, that for every gate opened for the egress of persons who wish to abscond, there is closed more than a corresponding number for the people who are good and honest debtors and who use the credit system for good and honest purposes.
– I shall quote a concrete instance in support of the retention of the clause as it stands. A debtor left Central Queensland ostensibly for a trip to one of the other States. In the meantime we discovered that he had realized his property and was not likely to return. Later we found that he had taken a passage for England. We endeavoured to stop him at Adelaide, but were unable to do so. Knowing that he had a considerable sum of money to collect on draft through two banks in London, we made him insolvent and the official trustee cabled to London, and had these moneys stopped. When the debtor arrived there he had to cable for sufficient money for his immediate needs. The result was that the creditors received 20s. in the £, and heavy legal expenses. The debtor received a lesson which, I think, will last him for the remainder of his life. It is very necessary that we should prevent such people from absconding.
– It seems to me that honorable senators are wasting a lot of energy on paragraph a as, to my mind, there is a greater danger to the insolvent in the commencement of the clause. Sub clause 1 sets out that the Court may, by warrant addressed to any constable or prescribed officer, cause a debtor to be arrested and his books, papers, documents and money seized.
– Subject to the conditions contained in paragraphs a,b, c and d.
– A good deal has been said about the debtor who desires to take a trip to one of the other States for the benefit of his health or for some other reason. There is nothing to prevent that debtor, if he is insolvent andwishesto act honestly from informing the Court or the Commissioner of Insolvency of the reason for his contemplated trip. If the debtor were about to commit the offence of absconding, it would be the duty of the Court, in the interests of his creditors, to arrest him. We have innumerable instances of debtors absconding to other parts of the world, considerable expense being involved in bringing them back. By the time they return there is no money left for anybody. Why should we open the door to people who are obviously intent on committing an offence? If a debtor wishes to take a trip for his health he should inform his creditors of such intention. I have no sympathy for the debtor who absconds or whose conduct lays him open to the suspicion that he is going to abscond. I support the clause as it stands..
– I do not want to be misunderstood. I hold no brief for any man who is guilty of an offence. I simply desire that aperson guilty of absconding should have all the protection that the laws of the British commonwealth of nations provide for him. I still adhere to my original statement that it will be difficult for any Court to prove that a debtor is about to abscond.
– That is quite true.
– I realize the difficulty, and I move -
That the words, “ is about “, paragraph a, be left out, with a view to insert in lieu thereof the word “ intends “.
If I had to adjudicate in such a caseI would find it much easier to define the word “ intends “ than the words “ is about.” I want to put the onus on the Court. Either the Committee should support my amendment, or it should delete the words which .deal with intention. It is impossible for any Court to determine whether a man “ is about” to abscond.
– If a burglar was “about” to enter the honorable senator’s home, would there be any difficulty in proving his “ intention”?
– He could not break into my home if he was only “ about “ to do it. The case of the burglar about to break into my home is not comparable with that of a bankrupt who intends to abscond. The burglar, whether he is outside my door with a revolver or a jemmy, or inside my house, has got beyond the stage of intending, and has become an actuality.
.- The proposed amendment cannot be accepted. It would not make any material difference to the clause. Under the clause a Court would have to be satisfied that the debtor intended to abscond. The amendment would not alter the effect of it. The phrasing of the clause is better than that of the proposed amendment. The clause refers .not to ordinary debtors, but to persons who .are actually insolvent.
Amendment negatived.
Clause agreed to.
Clause 76 -
The Count …. may . . . . order . that postal articles and telegrams addressed to a bankrupt . … be redirected …. to the official receiver or tha trustee or otherwise as the Court directs.
– I am in favour of this clause with the exception of the words “ or otherwise as the Court directs.” When a man becomes insolvent his mail matter is automatically delivered to the trustee. Why the words “ or otherwise as the Court directs “ are placed in this clause I cannot imagine. I move -
That the words “ or otherwise as the Court directs “ be left out.
– I am prepared to accept the honorable senator’s amendment.
– I suggest that there is no necessity for the deletion of the words referred to in the amendment. Circumstances may arise in which it is necessary for the Court to give a direction. When no. directions are given, the postal matter goes to the official receiver or trustee. Before it can be delivered to any one else an application must be made to the Court, and the Court must be satisfied .that there is occasion for an alteration. No one would incur the expense of going to the Court unless there was good reason for so doing. If the amendment is carried, there will be no authority to direct that communications shall be sent elsewhere than to the official receiver or trustee.
– I hope the Government will insist upon the clause. This is ‘another case of trying to treat the debtor as a criminal. If the Court, after investigation, decides that the articles should be delivered otherwise than as provided in the Bill, it may direct accordingly. Surely we ought to give a bankrupt the benefit of the direction of a Court of justice.
– It would appear from the .explanations that have been made that, under the clause as it stands, correspondence would ordinarily go to the official trustee, but if there were special reasons why it should be sent elsewhere, the Court could direct accordingly. If I am right in that assumption, I am satisfied to let the clause stand.
– The honorable senator’s assumption is correct.
Amendment, by leave, withdrawn.
Clause agreed to.
Sitting suspended from 6.30 to S p.m.
page 286
.- I move-
That, in the opinion of the Senate -
The battleship Australia should not be sunk, as proposed by the Government, but that she should be altered by having such portions of her side and deck plating removed as would render her completely and permanently unfit for further war service, glass to be . substituted for the plating so removed.
The ship should be fitted throughout as a war memorial ship, that war trophies, pictures, records, and history may be preserved in -her and made available for public inspection.
As a compliment to the gallant men who served in her and the other ships of the Australian Navy in successful defence of Australian shores and elsewhere during the Great War, and as a fitting memorial to the service rendered by them in preventing the bombardment of our shores by the German Fleet, this ship should be preserved to the people, so that as years roll on the Australia will become an inspiration to national sentiment, tradition and love of country as the Victory is to the people of Great Britain.
In submitting this motion I desire at the outset to say that my action in attempting to assist to save the Australia from destruction in the manner proposed is based largely on sentiment. I am not asking that this great battleship shall be used as a breakwater, or for any such purpose, as that would do more to destroy Australia’s pride in her than if she were sunk in deep water. The agitation for the saving of the Australia was started by me in Sydney last Christmas, largely in consequence of conversations I had had with people in that city. I saw the work of dismantling proceeding, and in travelling in trains, trams and on ferry boats, I found the matter was of great interest to the people of that city. I endeavoured to obtain the opinions of as many people a* possible, and I did not meet a single individual who agreed with the sinking of the ship. When the vessels of the Special Service Squadron visited South Australia I discussed the matter with officers, petty officers and men, and in every instance I heard strong expressions of disapproval concerning the Government’s proposal. I also wrote to the newspapers in Adelaide, Melbourne, and Sydney, and had the satisfaction of seeing in several prominent daily newspapers published in the capital cities leading articles in support of my suggestion. The action I am now taking must not be regarded as being in any sense a reflection upon the Government, who are, I believe, of the opinion that the Australia must be destroyed, in order to comply with the terms of the Washington Treaty. I have always held that under the terms of that treaty we are not compelled to sink the Australia, and I have submitted this motion to draw attention to the fact that the Government are acting contrary to the wishes of tho great bulk of the Australian people. It is the duty of the Government to see if effect cannot be given to the decisions of the Washington Conference iu the manner I suggest. It was proposed to sink the Australia on Anzac Day. It is astounding that there should have been any thought of selecting for this purpose the day on which Australia solemnly commemorates the great achievements of her men on Gallipoli. Under the terms of the Treaty the vessel has been dismantled, and as she is practically obsolete, is .quite worthless for warlike purposes. I have been informed that the contractor who is dismantling the vessel has made quite a large sum of money from the sale of small portions of the fittings which have been purchased as trophies. If such is the case, I deplore it, because such trophies should be the property of the Australian people as a whole, and should not be disposed of by any individual for the purpose of gain. I have received large numbers of letters from all parts of Australia, some from as far west as Derby in Western Australia, and others from Townsville in the east of Queensland, all of which support the proposal I have suggested. In addition, I have received many communications from South Australia, and there is one in particular of which I think a good deal. It is submitted in the form of a petition from the workmen at the Government workshops at Glanville. It is worth quoting -
We, the undersigned employees of the- Dockyard, Glanville, wish to express our appreciation of your efforts in endeavouring to save the battleship Australia.
With Archdeneon Samwell, we consider it would be a pity to destroy the good old ship, an emblem of nationhood^ which in time will become one of Australia’s cherished’ traditions.
This was signed by 123 men, and had it been addressed to the Senate, it would have been presented in this Chamber immediately after the recess. Some time ago the Lord Mayor of Adelaide called a meeting of citizens to protest against the sinking of the Australia. That gentleman, who is also president of the Navy League in- South Australia, has always taken a keen interest in this question, and is very much opposed to the Government proposal. At the meeting of citizens convened by the Lord Mayor, two motions opposing the sinking of the Australia were carried, and were forwarded to the then Acting Prime Minister (Dr. Earle Page), who, I understand, handed them to the Minister for Defence (Mr. Bowden). From that day to this no reply or acknowledgment has been received by the Lord Mayor of Adelaide to the protest he forwarded on behalf of representative citizens. Such treatment on the part of either the Acting Prime .Minister or the Minister for Defence was most ungenerous. The Minister for Defence, when passing through Adelaide on his way to Western Australia to meet the Prime Minister, gave an interview to press representatives in Adelaide, when some of the objections raised concerning the sinking were answered, but the Lord Mayor of Adelaide, who called the meeting of citizens, i3 entitled to greater courtesy. The Minister for Defence, in statements made from time to time, has indicated that vessels of the Special Service Squadron will be present when the Australia is sunk. I have spoken to a large number of men employed on vessels of the Fleet, and have ascertained that not one is anxious to take any part whatever in the ceremony. The men of the Special Service Squadron realize that the Australia is the first battleship we have had, and that owing to the changes which are taking place in naval warfare she may be the last. The Australia should be to the Australian people what Nelson’s Victory is to the people of England. I believe the Americans also have their ship, the Success, which has been preserved by the people of the United States of America just as the Victory has been by the people of Great Britain. Why should we not pay as much respect to the Australia as the people of Great Britain and America pay to their historic vessels? We know what England owes to the men of her Navy, and that the Australian people also have great respect for those who man the vessels of the Australian Fleet. We have not the same traditions as the people of England, but our Navy has rendered great service, and the people of Australia have every right to be proud of it. I want to know why the Australia should be sunk, and of course I shall be told, that it has to be sunk, because of the provisions of the Washington Treaty. 1 shall not take up time by reading largely from that Treaty, but certain of its provisions dealing with the scrapping of ships of war justify me in declaring that there is no need for haste so far as the sinking of the Australia is concerned, and that it need not take place for at least another twelve months.
– We are right up against the due date now.
– Article 4, paragraph a, of the Treaty reads -
The periods in which scrapping of vessels is to be effected are as follows : -
In the case of vessels to be scrapped under the first paragraph of Article II, the work of rendering the vessels incapable of further warlike service, in accordance with paragraph III of this Part, shall be completed within six months from the coming into force of the present Treaty, and the scrapping shall be finally effected within eighteen months from such coming into force.
Therefore the Australia need not be finally disposed of until two years have elapsed after the signing of the Treaty, and there is no need for the haste which has been displayed. It is intended, I believe, to sink the vessel while the British Fleet is in Sydney, but it makes no difference so far as the Treaty is concerned, whether it takes place then or not. I see no reason why action should not be postponed’ until the Government have obtained reports from ship-building experts upon the practicability of the suggestions I have made. My proposal is that the sides of the vessel should be cut down almost to the water’s edge in order to provide ingress and egress and to admit light and air to the interior, and that the decks should be similarly treated. Sections should be removed, and glass gratings substituted, in order to allow light to penetrate into the interior. I would not take her away from Sydney Harbor. The vessel could then be moored somewhere near Tooronga Park, where I believe, 80 per cent, of the people visiting the Zoological Gardens would inspect her. A charge could be made for admission and in a very little while the revenue derived from that source could pay all costs of maintenance. If treated in that way the Australia would occupy in the Commonwealth the position that the Victory does in Great Britain. I do not know that any charge is made for inspecting the Victory, but I am confident that nearly every Australian who visits England makes a point of inspecting her where she now lies anchored at Chatham. I am quite sure the people of the Commonwealth in years to come would be as keen to see the Australia as the people of Great Brtiain and the Dominions are to see the old Victory. The letters which I have received contain many suggestions as to the use that might be made of the Australia. Some persons think .that she should be used as a breakwater; others would turn her into a bridge ; others again think that she might be used as a hospital. I am not particular as to what use the Government make of the vessel so long as she is kept afloat. In the early stages of the agitation, one genius suggested that the vessel should be sunk off Bondi on the day of the surf carnival. The individual who would suggest that the Australia should be butchered to make a Bondi holiday could not have a very big soul. The people of the Commonwealth have spent large sums of money in erecting monuments to fallen soldiers. There is scarcely a town or hamlet in Australia which has not a monument to the memory of the gallant men who went overseas to fight for us. Our capital cities are vieing with each other in the amount of money they propose to spend on war memorials. Melbourne is about to spend £250,000 on a great monumental edifice. I do not know what Sydney intends to do, but I am sure its expenditure will be greater than that of Melbourne. Adelaide is content to spend a modest £25,000. I have no doubt that, in time, a very expensive and beautiful monument will be erected at Canberra, I approve of every proposal to devote money to this purpose. We cannot do too much in commemorating the splendid deeds of our men who went overseas and fought for us, but we cannot get away from the fact that, although names of sailors have been associated with those of soldiers on the memorials erected, they are land memorials, and almost entirely commemorate the deeds of soldiers. We want, at least, one memorial to preserve the memory of our seamen who did so much during the war to save the Commonwealth. We do not know what may happen in the future; we do not know what number of men we may require to man our future Navy; but, if the Australia is sunk, Australian sentiment will also sink, so far as the young men of the future, to whom we must look to man our fleet, are concerned. I deplore more than anything else the fact that, if this ship which has served Australia so well is sunk, it will have a very bad effect on the national sentiment of the young men of Australia. I shall quote one or two statements by prominent men to show, that the people have been led, intentionally or unintentionally, to believe that the Australia would not be sunk. According to the Sydney Morning Herald of the 6th May, 1922, Senator Greene, who was then Minister for Defence, said -
No decision had been reached as to her ultimate disposal. . . No doubt there was much valuable gear that could be taken from the Australia, but there was no intention of linking her.
In justice to Senator Greene I must say that at that time, so far as I know, no decision had been reached, and the people understood that the Government had not made up their minds. It is evident that the proposal to sink the Australia is quite a recent idea. According to the Sydney Daily Telegraph of the 3rd May, 1923, Mr. Hughes, the then Prime Minister, commenting on a report from Melbourne that in all probability the Australia would be sunk, said -
I know nothing about it. Surely to goodness I am entitled to know something about it if such is the case. … It is all nonsense. Nobody knows anything about it. The treaty has not yet been ratified, except by America, so how can people spread such reports.
The Sydney Daily Telegraph, in its issue of the 12th May, 1922, commenting upon a paragraph- copied from the Melbourne press, said -
Beyond referring to the statement of the Minister for Defence, that the vessel would not be sunk, and that no definite decision regarding her fate would be reached until after the ratification of the disarmament treaty by all the Powers, “the naval authorities are silent. At the same time it is pointed out that, although the treaty stipulated that the vessel should be rendered inactive a certain time after ratification, the Australia need not necessarily be sunk.
If my motion is carried, I am confident that the Government will not proceed with the sinking of the Australia. In the face of a resolution of the Senate I do not think they will dare to do so until something further is done with the object of saving the vessel. However, it is not sufficient for the Government to know what is to be done. The people who are taking such a keen interest in this matter should also know what the Government intend to do. The Victory was built about 160 years ago, and is more popular to-day than she was in the days of her active service in the wars of Great Britain. Apart from the “risks of war, storm, and shipwreck, it was only sheer luck that the vessel was preserved for the” nation. She was, upon completion, to be the largest vessel afloat, and enemy nations, who were rather jealous of her anticipated strength, sought to destroy her. France sent over an emissary to set her on fire while she still lay on the stocks, and, later on, an American gentleman, known to history as Jack the Painter, was hanged for a similar attempt. On several occasions the Victory had narrow escapes from destruction by’ similar means, but her closest call was when the Lords of the Admiralty took . a hand in attempting t,o destroy her. We read that about 126 years, ago they ordered the Victory to bo dismantled and turned into a prison hulks Thirty years afterwards another proposal was made that the ship should be broken up, but a newspaper agitation prevented its .destruction. History records that on another occasion the First Lord of the Admiralty had boasted at a party that he had that day signed the death warrant of the Victory. A lady, who happened .to overhear the remark, took the matter up,” with the result that again the vessel was saved from t he fate that had threatened it. At present the desire of the Admiralty and oi’ the people of England is all in the direction of saving the ship to the nation, and, so long as human ingenuity can keep the Victory afloat, it will be preserved. Only a few days ago we read in the newspapers that at Tokio a group of Japanese had asked the American Ambassador there to .use his influence at Washington to save from destruction the battleship Mikasa, which was Admiral Togo’s flagship in the Russo-Japanese war. The Ambassador pointed out that the. United States of America was only one ‘of the signatories to the Treaty, but he was prepared to forward the petition, to the State Department. The petitioners declared that they would present the request to the .other signatory Powers. Admiral Togo himself is reported to have said, “ We must conform to the Treaty, but we would like to see the Mikasa preserved, although she is useless, and was seriously damaged during the earthquake.” There was no earthquake at Garden Island, but any one looking today .at the Australia in course of being dismantled could not doubt its doom .unless immediate, .action is taken to save it. Are the people of Australia not as loyal to their country and to the fine traditions of their sailoi’3 and soldiers as are the Japanese? I feel confident that this Parliament and the people of Australia will refuse to sanction the destruction of this fine old ship. I have not submitted the present motion because of any whim of my own. I certainly originated the proposal, and I am delighted to know that it lias been supported in a most encouraging manner. ‘The Government will surely listen to the voice of the community. They have no right to trample upon the sentiments of the people. I have received innumerable letters from all parts of Australia commending the motion,” and some of them are couched in very strong terms. One, of a mild type, which comes from Queensland, reads as follows : -
Hearty congratulations on your bringing forward .Mie Motion “ That the warship Australia should not be sunk.” We trust that if the Government sink the Australia, Australia will sink the Government, .lt would be a tragic insult to the men arid friends of the Australian Navy if such an act were perpetrated.
This once powerful battleship now lies in the Sydney Harbor a helpless hulk unfit to take any further part in the defence of our Empire. This is not due to the cruel force of war, but to the peaceful efforts of diplomacy at the Assembly of the League of Nations and the Washington Peace Conference. The Australia will never be able to take its place .again amongst the battleships of the world. If my proposal, or any similar suggestion, is put into effect, at -should satisfy every requirement of the League of Nations. If the Government have any doubt on the matter there is no reason why they should not take the same steps as the Japanese people did with regard to the warship they desired to keep intact, when they applied to the signatory Powers.
– Not one of them would be likely to say “ No.”
– No doubt Australia will have to be consulted with regard to the ultimate fate of the Japanese warship. Will the Prime Minister of Australia .(Mr. Bruce) be prepared to decline the request of the Japanese? If he does, I think he will stand alone. If he says “ Yes,” how can be consistently support the sinking of the Australia? The Government must either stand alone in objecting to the Japanese saving their warship, or advocate the saving of the Japanese vessel, and the destruction of the Australia. I do not think the Government will put themselves in that unenviable position. We should save this ship, so that it will be at -once a tribute to our seamen and to the men who gathered at the Washington Peace Conference, and brought about a reduction of armaments. Let it not .be said .of Australia that it did to its own ship what its enemies could never do. As honorable senators have, no doubt, made up their minds on this subject, I hope that a vote will be recorded to-night. Let it not be said that when the war was over we forgot the men who- fought foc us. May the Australia remain for ever a monument to the victories of peace, which are no less renowned, than the conquests of war.. If the Senate carries the motion this evening, generations yet unborn will bless the memory of the men who were responsible for the preservation of this grand old fighting ship.
– In seconding the motion, I congratulate Senator Newland on his- splendid speech. lean only add that life would be very empty indeed without sentiment, and that it should be our desire to build1 up a national sentiment in the Commonwealth. At present we are calling for recruits for the Australian Navy, and that magnificent old battleship, the Australia, which did such fine work for the Empire and for this great island continent during the waa” should be preserved as an inspiration to our young people to- take their share in the ‘ defence of their native land. Apart from the sentimental aspect, it would be economically unsound to take what is left of the Australia and sink her in the deep sea, when she could be used for many desirable purposes. We applaud any steps taken towards international disarmament, and we all realize that the Australia as a’ battleship must be scrapped; but why should we do to that vessel what our enemies were unable to do? I think the honorable senator had in mind the sinking of H.M.A.S. Australia in the shallow waters of one of our Australian harbors, and her conversion into a war museum containing the trophies won by the gallant 4.00,000 young Australians - the flower of our land - who volunteered^ and did yeoman service in the time of trial.
– In that case, is not the Federal Capital the proper place for H.M.A.S. Australia?
– I do not know about that. I am exceedingly sorry that I may have to go to Canberra. The building of the Federal Capital is a sad waste of public money. If the vessel could not be used as a war museum she should be put to some commercial use. She cost about £1,500,000 to build, and it would not be economy to completely sink her. We talk about decentralization at our outer ports. We have in Victoriathe port- of’ Portland, with a depth of water of 40 feet and a; wharf that cost’ £250,000 to construct, but for oceangoing vessels it is,, unfortunately, not altogether a safe harbor, being exposed sometimes to south-easterly gales. Could not the Australia be made the nucleus ofa breakwater at Portland?
– Would the honorable senator sink the Australia at Portland and Toad onions from her deck?
– That is not for one moment suggested. Better still, could she not be used as a hospital for the alleviation of suffering ? There are constant appeals to the people of thi? country for funds to build hospitals. Could not the Australia be tied up to a wharf or moored in shallow water and used, as a hospital for infectious diseases or for dealing with plague or the ordinary epidemics which occur from time to time? I support the motion so ably moved by Senator Newland, because it is an unnecessary waste of money to sink the Australia, and because such an act will prejudice Australian sentiment respecting our Navy.
– We must all honor Senator Newlaud for his motives and the sentiment that prompts him in bringing forward this motion, but I hope that he will not claim for those who support it a monopoly of sentiment. I should be very sorry if the motion were to be treated as a test of those who think well of the Australian Navy. I regret to hear from the honorable senator that to a letter sent by the Lord Mayor of Adelaide to the Acting Prime Minister (Dr. Earle Page) no reply was- received.* I am afraid that there has been an oversight, and no one will regret it more than will the Acting Prime Minister. Whilst we must all admire Senator Newland for the sentiment that has prompted him to move this- motion, we must not take an action which would be viewed quite differently outside Australia. Looked at from inside Australia, Senator Newland’s motives and sentiments may be unchallengeable, but, unfortunately, we, as a Senate,. having ratified the Washington Treaty,’ have to look at this question from not only a purely sentimental point of view, but also the view-point of the other signatories to the Treaty. I invite honorable senators to pay close attention to the motion moved by the honorable senator. It not only contains condemnation of the Government for proposing to sink the H.M.A.S. Australia, but suggests that the vessel should be altered by having such portions of her side and deck platings removed as would render her completely and permanently unfit for further war service; glass to be substituted for the plating so removed. To comply with the motion, the bottom plating as well as the side plating would have to be removed and glass substituted. I myself have seen in the South Pacific a small boat with a glass bottom, but it was merely a rowing boat. I have grave doubt whether a vessel of the tonnage of the Australia, with glass sides and bottom, can be made to float; yet, if we comply with the motion, that is what will have to be done. And then it is proposed that the ship shall be fitted throughout as a war memorial institute so that war trophies, pictures, and records may be preserved in her, and made available for public inspection. I am afraid that honorable senators supporting the motion have never seen the Australia. Certainly they have never seen her interior, otherwise this suggestion would not have been made. A more unsuitable ship for a memorial institute could not be imagined. As a battleship she is simply a mass of metal, both inside and outside. She is so constructed in order to stand the tremendous strain of her powerful engines and the great weight of armaments. Then there is a suggestion that the salving of the Australia for the purposes indicatedis on a parity with the salving of the Victory. First of all, the Victory was not included in any disarmament treaty. The nation had a free hand in her disposal, and the Victory was preserved as she was in Nelson’s time, with masts and spars standing. The Australia, to-day, is a mere hulk, without funnels, masts or turrets, and any one looking at her would need a powerful imagination to say, “ That is the ship that defended our coast during the war.”
She is simply an unsightly hulk, whereas the Victory looks to-day as she did in Nelson’s time. Senator Newland stated that he commenced this agitation after the demolition of the vessel had been entered upon. I suggest that he commenced his agitation too late. It should have been commenced before this Parliament ratified the Washington Treaty, because that was the only time when this resolution could have had any effect, unless we intended to disregard the Treaty, or to seek its alteration. It would be equally an infraction of the treaty to use the vessel as a breakwater. This could not be done without consulting the other Powers who were parties to the treaty. Something has been said concerning the sentiment of our sailors. I understand that the opinions of a large number of naval officers, some of whom served in the Australia, have been obtained, and they would infinitely prefer to see her sunk off the coast that she did so much to defend - flying her flag, that was never struck in the face of the enemy - rather than thatshe should be broken up under the terms of the treaty. There are only two ways by which we can comply with the treaty. One is to sink her, and the other is to breakher up. I venture to say that to sink the Australia-, with her flag flying, in the presence of her sister ships, is a far greater appeal to our sentiment than to send her to the breaking-up yard, just as one might send an old horse to the Zoo. I said just now that the motion, if passed, would have no effect unless the treaty were amended. I am afraid that Senator Newland has not read very closely the articles of the Washington Treaty dealing with the breaking up of H.M.A.S.Australia. Chapter 2 of the report sets out the vessels that may be retained. Part 2of that chapter reads as follows : -
The following rules shall be observed for the scrapping of vessels of war which are to be disposed of in accordance with Articles II. and III. : -
A vessel to be scrapped must be placed in such condition that it cannot be put to combatant use.
This result must be finally effected in any one of the following ways -
Breaking the vessel up. This shall always involve the destruction or removal of all machinery, boilers, and armour, and all deck, side, and bottom plating.
Converting the vessel to target use exclusively. In such case all the provisions of paragraph III. of this Part, except sub-paragraph (6) in so far as may be necessary to enable the ship to be used us a mobile target, and except subparagraph (7), must be previously complied with. Not more than one capital ship may be retained for this purpose at one time by any of the contracting Powers.’
Of the capital ships’ which would otherwise be scrapped under the present treaty in or after the year 1931 …
I need not read further, because, obviously, paragraph d does not apply to the Australia, but to other ships. There are two alternatives, each of them involving the complete destruction of the ship. The treaty aims at nothing less, and will be satisfied with nothing less. Therefore, the Commonwealth Government has no choice, as each alternative involves the destruction of the vessel. The Washington Treaty, as I have read, is mandatory that we must carry out the procedure of destruction. It must be remembered that the treaty was printed in two languages - French and English - and it is manifest that the ship must be sunk in the sea without a possibility of being refloated, or she must be broken up, because the same terms are used in both the French and the English print. If the Senate passed this resolution, what would happen ? It has ratified the treaty which states that the ship must either be sunk or destroyed. It would now say that the ship should notbe destroyed, but should in some way be patched up and turned into a museum. Senator Newland could not have quoted a more unfortunate fact in support of his motion than that a certain section of the Japanese people wanted to retain the battleship Mikasa. That illustrates the danger of asking for an alteration of the Treaty. Is it supposed that we are the only people who would like to have it altered, and who think that they have agreed to give up too much ? If we made requests for alterations, we might find that they would be granted, only to be followed by requests from other nations that we could not, in view of our own request, refuse to grant. In that way the benefits of the Treaty might be frittered away. It would be dangerous for Australia to take part in any request for a variation of the Treaty. We have only one capital ship to scrap, while other nations have many. Senator Newland quoted Senator Greene as having said, when he was a Minister, that there was no intention of sinking the A ustralia, and later he mentioned that, about the same time, the ex-Prime Minister, Mr. W. M. Hughes, made a statement which could be construed in the same terms. He said that those statements were made before the Treaty was ratified. That being so, there was no intention at that time of sinking the Australia. The matter had not then been considered.
– The statement was correct at the time I made it. The matter had not been considered.
– A number of our enterprising newspapers, as is their usual practice, announced the intentions of the Government, and then went to Ministers to get confirmation of their statements. Senator Greene said, of course, that there was no intention of sinking the Australia. In accordance with the terms of the Treaty, the Government had two alternatives. It might have decided’ to break up the ship. As a matter of fact, the breaking up of the ship was considered as an alternative to sinking her. Expert advice was obtained regarding the cost and feasibility of it, and the advice was such that the Government decided that to break it up would be uneconomical, and doubts were expressed whether it could be effectively done within the Commonwealth. Our ship-yards have not been equipped for that class of work, and it was quite on the cards that we would have had to send her to the United Kingdom to get her broken up. Even Great Britain has found it impracticable to break up many of the ships condemned under the Treaty, and has had to sink them. With all her dockyard equipment she has been unable to comply with the terms of the Treaty to that extent. I invite honorable senators to read the Treaty, and if they do so they will find that the Senate would stultify itself by passing the motion. I appeal to Senator Newland not to press the motion. It would not be fair to the Senate for him to do so. We cannot ratify a Treaty and then come along later with a proposal to evade its provisions. The honorable senator has made an appeal on the grounds of sentiment. I would be the last, and certainly ought to be the last, in this Senate to do anything to decrease the sentiment in favour of an Australian
Navy. I would not like any vote or speech of mine to be construed in that way. To pass the motion is not the way to do a service to the Navy, and to press it will hardly be fair to those honorable senators who do not want to be placed in the position of having to vote against it. The honorable senator has said that if the motion is passed the Government will not dare to proceed with the sinking of the ship. It is equally certain that the Government could not adopt the course suggested in the motion. If the Government accepted the motion as a direction not to sink the ship, it would have only one alternative, and that would be to break her up. It must do one thing or the other. Because of the expenditure involved, and also after full consideration of the sentimental aspect, it came to the conclusion that it would be too costly, and probably impracticable, to break her up in compliance with the terms of the Treaty. The Government believes that it would be best, both from the point of view of economy and sentiment, to sink the ship in the manner suggested. I appeal to Senator Newland to withdraw the motion. At the same time, I emphasize the fact that the rejection of it by the Senate cannot be interpreted as a lack of sentiment in favour of an Australian Navy. The rejection of the motion will be a recognition that we have given our word of honour to carry out the terms of the Treaty strictly in the spirit and the letter. Let me say a few words about national sentiment. Senator Guthrie has said that it would be economically unsound to sink this ship, and he has appealed to the Senate on the score of sentiment. I remember that after the Great War we were faced with the problem of what to do with the horses then in Palestine. It would have been economically unsound, and extremely dangerous, because of the possibility of introducing to Australia diseases unknown here,to bring them back to this country, and so it was decided to follow the economically sound course of selling them in Egypt. What happened? Large numbers of the Light Horse men shot their horses - the horses that had carried them right through the campaign - rather than that they should be sold in the knackers’ yards, or to strangers who would use them for various purposes. The sentiment behind that act was the same as that behind the sinking of the Australia. It is a sound sentiment. It may not be economical, but it is a sentiment that we can honour. By sinking the Australia we shall be expressing the true sentiment of the Australian nation. The ship will go down with her flag flying - the flag which has never been struck in the sight of an enemy. She will sink, to repose on the bed of the ocean near the country that she has served so well, and we shall have complied with the terms of the Treaty. No one who looks at sentiment in its true light can find any fault with that proposition.
Motion (by Senator Needham) pro- posed -
That the debate be now adjourned.
Question put. The Senate divided.
AYES: 4
NOES: 12
Majority . . . . 8-
AYES
NOES
Question so resolved in the negative.
– I do not wish to take up the time of the Senate in replying to the Minister, further than to say that he pointed out the impossibility of removing the bottom plating from the Australia and substituting glass. I never made such a ridiculous suggestion, and neither is it made in my motion. What I did say was that portions of the sides and decks should be removed.
– The Treaty says that we must remove the plates from the sides and bottom.
– The Treaty says so, but there is a very considerable consensus of opinion that if my suggestion were adopted it would comply with the spirit, if not the letter, of the Treaty; It would mean that the ship could never be used for any fighting purpose. I have never suggested that the bottom plates should be removed, for I realize the difficulty of carrying out such an operation in Australia. The Minister said that the people of Great Britain saved the Vic- tory because she looked as she did in the days of her strength and glory. That, to some extent, is true, and it is also true that the Australia will look much as she did in the days of her strength and glory if what I suggest is done. That is not an argument against my motion. The Minister also suggested that I had not read the Treaty carefully. I have read it dozens of times since I started this agitation. I have read it with people who are expected to understand such matters, and they are agreed that if my motion was acted upon the terms of the Treaty in this respect would be carried out to the satisfaction of the. other Powers who are parties to it. J do not desire it to be assumed that the rejection of my motion will indicate a lack of sentiment on the part of those who vote against it. Some are opposing my suggestion from a strict sense of duty, and consider that the Government are carrying out the spirit and letter of the treaty. I differ from the contentions of the Minister, and believe that if my motion were carried, the provisions of the ‘treaty would be complied with. The Minister referred to the horses which were destroyed by their riders rather than that they should be sold in Egypt. There is a wide difference between the destruction of horses on the desert of Egypt and the sinking of the Australia. Horses can easily be replaced, and the sentiment in such cases would be only that of a rider for his horse, whereas in this instance the whole of the Australian people are involved. If the Government delayed the sinking of the Australia, they could obtain reports from ship-building experts to see what could be done. I believe I drew a comparison between the cost of equipping the Australia in the manner suggested, and that of building the numerous war memorials erected to our fallen soldiers. The cost of re-fitting the Australia as a war museum would not be great, and the sentiment of the Australian people would be respected. In view of the stand I have taken, I shall not withdraw the motion, and I trust that it will receive the support of the majority of honorable Senators.
Question resolved in the negative.
page 295
Motion (by Senator Pearce) proposed -
That the Senate do now adjourn.
– In common with other Western Australian senators, I have received a telegram from the secretaryof the Returned Soldiers’ Association in that State, to which I wish to direct the attention of the Minister representing the Minister for Defence. In this message, we are informed that the Kalamunda Convalescent Farm for distillled returned soldiers is being closed, and that some of the inmates are now being compelled to leave the institution. As there is no other suitable accommodation available for them, I ask whether the Government will take steps to see that the home is retained, and that they suffer no injury as a result of the action which, I presume, has been taken by the State authorities. As the secretary of the association (Mr. Penny) has sent telegraphic communications to senators representing Western Australia the matter is of great urgency, and I ask the Minister to give it his attention at the earliest possible moment.
– I, too, have received a telegram concerning the matter mentioned by Senator Needham, and while I have no information on the subject beyond the mere statement contained in the message, I should like to know what it is all about. By the time we meet to-morrow, I trust, the Minister will have some inquiries made so that he can give the exact position. I do not wish to embarrass the Minister, and I am sure Senator Needham hasno such desire. If Senator Needham had not raised the question, it was my intention to bring it under the notice of the Government so that we might be inf ormed of the exact position.
– I also have received a telegram to the same effect, and it is now in the hands of the Minister. In addition to what has been said,I may explain that it would be a great blow to the sentiment of the people of Western Australia if this institution, which is of practical service, were closed down. Numerous entertainments and healthy amusements for convalescent returned soldiers are provided in it by citizens and it is held in high esteem by the people of Western Australia. I trust the Minister will tell us to-morrow that our information is incorrect, and that it is not the intention of the authorities to close the institution.
.-I shall make inquiries in regard to the matter, and advise honorable senators as to the position.
– Yesterday. I put to the Minister representing the Postmaster-General a question on notice relating to cable matters, particularly in connexion with the agreement with the cable companies, andI was informed that the matter was receiving Cabinet consideration. To-day I asked theHonorary Minister (Senator Crawford), without notice, if he could inform the Senate when Cabinet would be likely to disclose the result of its deliberations. I received what I considered a somewhat flippant answer - I was again asked to give notice of the question. This is a matter in which I have been interested for a considerable time, and it appears that a great deal of humbugging is being indulged in by some one. The matter was discussed at the Imperial Conference. Since the Prime Minister’s return I have endeavoured to ascertain what actually occurred at that gathering, but so far have not been successful. If I am assured by the Honorary Minister that the matter will be dealt with promptly by the Cabinet, I am prepared to wait its decision before I take any further action. I am not to he put off as the Minister may suppose. I assure him that, unless I am informed that action is to be taken in a proper and definite way, at an early date, I shall have to take other steps in the Senate to obtain the information I want, so that I may proceed with my agitation for a reduction in the cable rates and an observance of the agreement made between the cable companies and the Government. The agreement provides that when the business reaches a certain volume the cable rates shall be reduced. That stage has been reached’ long ago, but the companies are still charging the rates to the commercial community and the general public that were imposed in the initial stages of the agreement. Can the Minister tell us now if this matter is to receive prompt Cabinet consideration, and, if not, when he will be able to give us some information.
– As the Honorary Minister (Senator Crawford) has exhausted his right of reply, I may explain that we are not in a position to give the honorable senator any more information than was given this morning, as Ministers, in common with other honorable senators, have been engaged in the Senate ever since. The honorable senator’s remarks will be brought under the notice of the PostmasterGeneral for his consideration.
Question resolved in the affirmative.
Senate adjourned at 9.26 p.m.
Cite as: Australia, Senate, Debates, 3 April 1924, viewed 22 October 2017, <http://historichansard.net/senate/1924/19240403_senate_9_106/>.