13th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 11 a.m., and read prayers.
The following papers were pre sented : -
Defence Act - Regulations amended - Statutory Rules 1932, No. 28.
Naval Defence Act - Regulations amended - Statutory Rules 1932, No. 29.
British Phosphate Commission - Report and Accounts for theyear ended 30th June, 1931.
Patents Act - Regulations amended - Statutory Rules 1932, No. 30.
Arbitration (Public Service) Act - Determinations by the Arbitrator,&c. -
No. 2 of 1932 - Federated Public Service Assistants Association of Australia.
No. 3 of1932 - Fourth Division Officers’ Association of the Trade and Customs Department; and Commonwealth PublicService Clerical Association.
New Zealand Legislation
– Has the Acting Attorney-General (Senator McLachlan) seen a paragraph inthe Sydney Morning Herald, of the 16th March, announcing that in New Zealand the Arbitration Amendment Bill providing for compulsory conciliation and voluntary arbitration has just been passed, a Labour amendment to retain compulsory arbitration being defeated by 41 votes to 27 ? Will the Acting AttorneyGeneral take steps to examine the provisions of this measure with a view to bringing down similar legislation in this Parliament?
– During the Easter adjournment I shall have the legislation to which the honorable senator refers carefully examined.
– I ask the Lender of the Government in the Senate (Senator Pearce) whether in the event of naval defence coming up for discussion at the forthcoming Ottawa conference, and the necessity arising for determining the position of the Commonwealth with respect to the Singapore Naval Base, the representative of the Commonwealth at that conference will make a straightout offer tothe British Government to share the cost of that project inthe same way as the Government of the Dominion of New Zealand has already done?
Senator Sir GEORGE PEARCE.The question raised by the honorable senator will not be a subject for consideration at the Ottawa Conference; butit way comes up for discussion at the meeting of the Britishrepresentatives attending the Disarmament Conference. If it should, the suggestion of the honorable senator will receive full consideration.
– Ihave to report the receipt of the following letters: -
The Senate, Canberra, 16th March, 1932.
In accordance with the Standing Orders recently adopted by the Senate, I herewith nominate SenatorsBrennan, Sir Hal Colebatch, Duncan-Hughes and Elliott as members of the standing committee on regulations and ordinances.
Leader of the Government in the Senate.
The Senate, Canberra, 17 th March, 1932.
Dear Mr. President
In accordance with Standing Order36a, I hereby nominate Senators Barnes, Dooley, and Rae as members of the standing committee on regulations and ordinances.
Leader of the Opposition.
Motion (by Senator Pearce) - by leave - agreed to -
That a Standing Committee on Regulations and Ordinancesbe appointed to consist of Senators,Barnes,Brennan,SirHalColebatch, Dooley, Duncan-Hughes, Elliott, and Rae, such senators having been duly nominated in accordance with the provisions of Standing Order No. 36a.
– Will the Leader of the Government in the Senate (Senator Pearce) keep in mind during the adjournment over Easter the advisability of not calling the Senate together at the same time as another place unless there is urgent business to transact?
Senator Sir GEORGE PEARCE.That matter has already been considered by the Government. In order to meet an eventuality such as the honorable senator suggest, the date of resumption of the respective Houses is to be notifiedby The President and Mr. Speaker.
asked the Minister representing the Prime Minister, upon notice -
Senator Sir GEORGE PEARCE.The answers are 1 and 2. Owing to the extreme pressure of parliamentary business, it has not yet been found practicable to take action in accordance with the statement made by the Prime Minister to theLoan Council regarding the sugar agreement.
Legalopinion ofmrr.g.menzies, K.C.
asked the Minister representing the Minister for Markets, upon notice -
– The answers are : -
Services ofsir Harrison Moore.
asked the Minister representing the Prime Minister, upon notice -
Senator Sir GEORGE PEARCE.No account has yet been received.
asked the Minister representing the Prime Minister, upon notice -
– The point? raised by the honorable senator are being looked into, and a reply will be made available as soon as possible.
Dutyon Shipments to Germany
asked the Minister representing the Minister for Markets, upon notice -
Is the Minister in a position to give the Senate any information, beyond that published in the press, as to the prospect of Australian fruit being admitted to Germany without payment of a prohibitive duty?
– The Minister for Markets has been advised by the High Commissioner that information has been received from the Foreign Office that the German super-tariff will not apply to Australian fruit or to other Australian produce.
asked the Minister representing the Minister for External Affairs, upon notice -
Is it the intention of the Commonwealth Government to follow the dead given by the United States of America, by intimating that the new Manchurian State will be ignored by the Commonwealth Government until the question has first been submitted to the League of Nations; if not, why not?
– As the Commonwealth Government has received no official notification of the existence of a Manchurian State, the question of recognition does not arise.
Callson Mining Shares
asked the Minister representing the Treasurer, upon notice -
– The answers are -
asked the Min ister representing the Treasurer, upon notice -
– The answers are -
In committee: Consideration resumed from the 16th March (vide page 1155).
Clause 2 agreed to.
Clause 3 - (1.) Section thirty-six of the principal act is amended by inserting, after sub-section ( 1 ) , the following sub-sections: - (1a.) Notwithstanding the cancellation of any contract of sale, the Commissioner may sue for and recover from the purchaser any money which became due under the contract at any time prior to the date of cancellation of the contract.
Section proposed to be amended -
.- I move-
That the words “ cancellation of the contract,” proposed new sub-section 1a, be left out with a view to insert in lieu thereof the words “ vacation by mutual agreement between the purchaser and the Commissioner.”
If this amendment is adopted the proposed new sub-section will read -
Notwithstanding the cancellation of any contract of sale, the Commissioner may sue for and recover from the purchaser any money which became due under the contract at any time prior to the date of vacation by mutual agreement between the purchaser and the Commissioner.
The delegates attending the conference ofsub-branches of the Returned Sailors and Soldiers Imperial League of Aus- tralia, which was held at Newcastle were of the opinion that if a soldier, or the widow of a soldier, vacated a property, there should be mutual consent to the vacation on the part of the purchaser and the Commissioner. They pointed out that it might become necessary for the purchaser of a war service home to vacate a property in, say, January, whereas the cancellation of the contract might not take place until eight or ten months later. The delegates felt that, in such a case, a heavy burden would be placed upon the purchaser. Yesterday, I read a number of resolutions which were agreed to at the conference to which I have referred. This morning I received a letter from the Cessnock sub-branch of the Returned Sailors and Soldiers Imperial League of Australia. Cessnock, which has a population of about 30,000 persons, has an active branch of the league - perhaps one of the most active in Northern New South Wales. The writer of the letter to which I have referred states -
I was instructed to request you to voice the strongest of protests against the adoption Of such amendments as outlined by the Minister in question. I feel confident that you will require no urging, and that our interest can well be left in your care.
– Is the group with, which the honorable senator is connected the only body of men capable of conserving the interests of the returned soldiers ?
– The honorable senator suggests that this group is most representative of the views of the returned soldiers. I thank him for his compliment, and I confidently anticipate lis support of my amendment. I assure him that my colleagues and I will feel honoured at having his support. It is the duty of every honorable senator to indicate clearly where he stands in regard to the fight that is being waged by the returned soldiers at Cessnock and elsewhere, in connexion with the measure before us and the administration of war service homes generally. The conference also carried the following resolution: -
That this conference of sub-branches assembled at Abermain wish to register our emphatic protest against any amendment of the War Service Homes Act.
I submit that the amendment which I have moved expresses the desire of the great body of returned soldiers, and I hope that it will be accepted by the committee.
– Proposed new subsection 1a of section 36 is a replica of regulation 17, which was held to be ultra vires. It is now being placed in the statute in order to give it legal effect. Senator Dunn referred to certain resolutions which were carried by a number of returned soldiers at a conference at Newcastle. Those resolutions were, later, submitted to the controlling body of the returned soldiers’ organization in New South Wales, and were rejected. When the honorable senator realizes what this bill aims at, I feel sure that he will not persist with his amendment. Even now mutual agreement must exist before anything can be done. If the purchaser of a war service home vacates the property, and the Commissioner does not agree, the contract is not cancelled ; but if the Commissioner does agree, the contract is cancelled. We must assume that in cases in which the Commissioner refuses to cancel the contract, he has good reasons for his action. Under the amendment moved by Senator Dunn, the purchaser will be in no better position than he is to-day.
– This clause gives me an opportunity to mention a matter which I was unable to bring before the Senate on the second reading. About eighteen months ago, when I was in Rockhampton, the depression was so acute that there was a good deal of rationing and dismissals of returned soldiers who were purchasing
Avar service homes. Some of them approached me and asked that I should urge on the then Government the desirability .of extending the time for repayment from 25 to 40 years. Most of the war service homes built in Queensland are constructed of wood, and, consequently, the period for repayment is 25 years as against 40 years in the other States where the buildings are mostly of brick and other more durable materials. They pointed out that men still in -receipt of their ‘ordinary wages could continue to meet their obligations, as they had done hitherto, hut that men on short time, or out of work, could not do so. A little later, I, in common with other honorable senators from Queensland, received a request from various branches of the returned soldiers league in Queensland making similar representations.. When I placed their representations before the then Government, I was informed that, in view of the necessity for obtaining all the revenue possible, the request could not be acceded to. The present is an opportune time for this matter to be considered. I shall not move an amendment to extend the period for repayment; I merely ask the Minister to bring this matter before the committee of inquiry which is to be set up. Agreement to this request, while not affecting the revenue to any great extent, would confer a great boon on the occupiers of war service homes in Queensland. I bring this matter forward now in the hope that something will be done in the direction indicated.
– I support the remarks of Senator Thompson, who has urged an extension of the period for the repayment of advances made’ to the purchasers of Avar service homes in Queensland. These homes, which are built of well-seasoned timber, and have been faithfully constructed under expert supervision, will last much longer than 25 years. The returned soldiers in Queensland feel that they are placed at a disadvantage in comparison with their comrades in the other States in that the period for the repayment of advances made to them for their homes is shorter than in the other States. I hope that their views will receive the careful consideration of the committee that is to be set up. If the Government cannot see its way to extend the period for repayment to 40 years, I urge it to extend it by at least ten years, making the full term 35 years, so that the purchasers of these homes may beable to meet their obligations.
.- While I appreciate the point made by Senators Thompson and Cooper, I suggest that it has little connexion . with this clause. In order, however, thatthe point raised may be cleared up now, I mention that this matter has already been referred to a committee of inquiry.
SenatorRAE (New South Wales) [11.29]. - The Minister’s answer to the point raised by Senators Thompson and Cooper precludes me from saying more than that I endorse the views which they have expressed. I rose particularly to say that the Minister was not correct when he said that the amendment moved by Senator Dunn emanated from theCessnock Branch of the Returned Sailors and Soldiers Imperial League of Australia. The resolutions were agreed to at a conference of delegates representing various sub-branches of the League in the northern districts of- New South Wales, which was held at Newcastle. The conference recommended that sub-section 1a of section 36 be altered to make it read -
Notwithstandingthe cancellation of any contract of sale the Commissioner may sue for and recover from the purchaser any money which became due under the contract at any time prior to the date of the mutual vacation of the property.
That seems to provide expressly that the Commissioner shall have authority to sue and recover from a returned soldier even after he has agreed with the Commissioner to vacate his property.
– If there is mutual agreement, the position will be the same under the honorable senator’s proposed amendments because power to sue will still be in the hands of the Commissioner. I think that those who made the representations to the honorable gentleman did so under a misapprehension as to the purpose of the bill.
– I do not know if the Minister was in the chamber last night when I read a number of resolutions carried at a thoroughly representative conference of branches and sub-branches of the Returned Sailors and Soldiers Imperial League, at Newcastle on the 7th March, because they have a direct bearing on this amending legislation. The Newcastle sub-branch, in a letter to Mr. R. James, the member for Hunter, in another place, states -
I thank you very much for your courtesy in forwarding a copy of the proposed amendmentsto the War Service Homes Act. They were placed before my committee at their recent meeting held on the 7th March, and were severely criticized: and during the discussion that ensued it was pointed out that the several amendments proposed were all to the benefit of the Commissioner, and that no benefit would be derived by the occupiers.
Another letter, from the Cessnock subbranch, under date 12th March, is in the following terms : -
The amendment to the War Service Homes Act. a copy of which was forwarded, was dealt with at our last general meeting. Some very scathing remarks were made on the Government’s action in springing such financegrabbing legislation at a time when diggers, in common with other struggling house-owners, or I should say, ex-house owners, are seeking some measure of relief from the burdens which arc so much in evidence at present. I. was instructed to request you to voice the strongest of protests against the adoption of such amendments as outlined by the Minister in question. I feel confident that you will require no urging, and that our interests can well be left in your care. Expressing our sincere appreciation of your constant vigilance and efforts on our behalf.
I assure the Minister that there is no desire to split straws in the interpretation of the various provisions of the bill. The resolutions of the Newcastle conference were the result of a careful consideration of the measure, so the representations made are entitled to respect. To overcome the difficulty, I suggest that the further consideration of the bill be postponed, and an invitation be sent to the president and secretary of the State executive, and perhaps also to a delegate from the northern districts of New South Wales, to ascertain definitely the views of returned soldiers on this proposal. Failing acceptance of this suggestion, we shall be obliged to push the amendment to a division.
– What is the view of the federal executive?
– I have no authority to speak for the federal executive. All I can say is that this measure was fully discussed at a conference of the northern branches and sub-branches at Newcastle a week or two ago, and was severely criticized.
– This matter was discussed at a meeting of the federal executive, and, notwithstanding the represen-. tations made by the branches represented at the Newcastle conference, the federal executive offered no objection to the Government’s proposals. As a matter of fact, objection has been raised by only one State, and that is not the one which Senator Dunn assists to represent in this chamber. Again I remind the honorable senator that these amendments will not accomplish what apparently he has in mind, because anything done under the bill will be the result of mutual agreement.
– The cancellation of the contract need not be mutual.
– If the Commissioner has power to do certain things, and the returned soldier does not agree, he will be in no better position under the amendments than under the Government’s proposal.
– Senator Sampson has asked what are the views of the parent body on these proposals, and the Minister has informed us that it has offered no objection. Apparently this informationhas just been conveyed to the Minister by a departmental official. I do not know what are the views of the parent body and, apparently, Senator Sampson also is ignorant on the point. This being so, what objection can the Minister offer to my suggestion that further consideration of the bill be deferred until he has had an opportunity to consult Mr. Dyer, the general president, Mr. Robb, the New South Wales State president, and other representatives from the northern districts of that State? The Minister says that only the Cessnock and Newcastle sub-branches are making this appeal. I disagree with that statement, which, probably, has been made off-hand without a complete knowledge of the case. The whole of the branches comprised in the northern portion of New South Wales were called together by an executive minute of the State Council of the Returned Sailors and Soldiers Imperial League of Australia. They met in Newcastle under the chairmanship of the State President, those present including two State councillors, the State secretary and ten delegates representative of all the sub-branches. The whole of their deliberations were directed towards this provision. I appeal to the Minister to hold over the clause to see if anything can be done to meet their wishes.
.- Sub-clause 2 appears to me to involve the return of our old friend “ retrospective legislation “ in a somewhat acute form. The amendment made by sub-clause 1 is, by subclause 2, deemed to have operated from the date of the commencement of the War Service Homes Act 1918, and thus will have- retrospective operation over a period of fourteen years. I , am generally averse to retrospective legislation even for a short period, and I imagine that no one would be in favour of so long a time as fourteen or fifteen years. We all know the course which these cases usually follow. The Ministry introduces legislation which is incorrectly worded to effect the purpose desired. In some cases, it may prefer to bring in a bill in general terms, leaving its operation to be made effective by regulations. I gather that in this particular case, the regulation that was issued was held to be ultra vires. Naturally, that case is exempted from the terms of the alteration. But the alteration is made to date back so as to embrace and to govern every other case that presumably has occurred within the last fourteen years. If that be so, I should like to know whether many cases are affected, or a large sum is involved. Those considerations, of course, do not lessen the undesirability of retrospectivity, though I admit that it is an impossible task to re-open all cases that have arisen over a period of fourteen or fifteen years, and that have been decided under the belief that the law was what it was subsequently shown not to be. The Government should stand by any law that has been enacted, and not seek years afterwards to make alterations dating back to its enactment.
.- I intend to support the clause as it stands. I cannot see that the proposed amendment has very much bearing on it. I agree with the Minister that, in the first place, an agreement must be arrived at before the contract can be cancelled. I hope that we shall have an assurance from the Minister that a returned soldier who happens to be out of employment will not be evicted from his home, and that the good relationship which existed between him and the commission during the regime of the last Government, will continue. In those circumstances, no great hardship will be imposed upon him.
I have listened attentively to the honorable senator who moved the amendment. It appears to me that the correspondence which he has read discloses not so much a valid objection, as the fear of something that might be done. I am at a loss to know what is to be feared. The only fear that these men can have is that they may be turned out of their homes. The commission must be given some protection. I presume that there are cases in which the occupants neglect the homes and allow them to fall into disrepair, with the result that upon vacation they are not of very much value. The bill provides that the expenditure by the commission upon repairs, chargeable to the occupant, shall not exceed £40. I cannot apprehend any great hardship being caused, so long as the Minister will give the committee the assurance that humane treatment will be meted out to returned soldiers or their dependants.
– I give that assurance.
– That being so, I am satisfied that the returned soldier will not have any serious complaint in regard to the administration of this department. It is only reasonable to expect that when a contract is. entered into, and subsequently is cancelled, the purchaser or borrower shall be held liable until the date of the cancellation.
– If the amendment is inserted, how will the department deal with the case of “moonlight flitters”? I do not suggest that that is a common habit among returned soldiers; but, unfortunately, it is encountered in all walks of life.
. - I am not very much concerned about “ moonlight flitters “ or “ moonlight snowdroppers.” Nor am I concerned about the opinion held by Senator Dooley, who has expressed the intention of supporting the clause as it stands. It is a pity that there were so few honorable senators in the chamber to grasp the significance of the objection raised by
Senator Duncan-Hughes to retrospective legislation. That honorable senator deserves credit for his exposure. He has raised a very important point, and I appreciate his action very much. But what I wish to refer to more particularly, is the quibble in regard to the word “mutual.” When a returned soldier walks into the office of the Commissioner, he does not merely smile, shake hands, and walk out again. Why should we split straws in the interpretation of the word “mutual”? If there is nothing in the mind of the Minister, what is wrong with his acceding to my request to hold up this clause until the opinion of the State executive of the Returned Sailors and Soldiers Imperial League of Australia is obtained? I believe that he has not correctly interpreted the amendments that are desired by the convention which was held in Newcastle. The Government is not likely to allow the charge to be laid at its door that it has placed returned soldiers, with their few sticks of furniture, on the roadside, and has made it necessary for them to tramp the highways and byways. I do not think that any Australian Government would do that, realizing the great services which the men concerned rendered to the country during the dark days of the war. I again urgethe postponement of these particular amendments until the Senate meets again.
Question - That the words’ proposed to be left out (Senator Dunn’s amendment) be left out - put. The committee divided. (Chairman - Senator Plain.) Ayes . . . . 3
Majority . . . . 17
Question so resolved inthe negative.
he may effect all repairs which he deems necessary, and the expenses thereby incurred, together with interest at the same anual rate as that which is payable on the purchase money or advance, as the case may be, shall be paid to the Commissioner By the purchaser or borrower on demand or by such instalments and at such times as are prescribed or the Commissioner determines, and until repayment shall be a charge under the contract of sale or mortgage or other security upon the property, notwithstanding that the’ cost to the Commissioner is thereby increased to more than Nine hundred and fifty pounds:
Provided that the amount which the purchaser or. borrower is liable to pay to the Commissioner under this paragraph shall not in any event exceed the sum of Forty pounds; and
SenatorRAE (New South Wales) [12.6]. - It is obvious that if a soldier vacates his home because of his inability to meet the payments falling due to the War Service Homes Commissioner, it is impossible to recover from him the cost of repairing the premises he has left. The constant need for amendment of much of our legislation is due to the fact that we load our acts with impracticable conditions. Is it not clear that it is impossible to demand from a person who has vacated his house through inability to keep up his payments, the cost of any renovations effected to the house after his departure fromit?
.- It is as much in the interests of the purchaser of a home as it. is in the interests of the War Service Homes Commission that the commission should have the power given in this proposed new sub-section to charge the purchaser or borrower with the cost of repairs to a houseof which the commission has resumed possession. Theobject isto put the house in a tenantable or saleable state of repair so that a buyer may be found for it at a reasonable price, and so that the commission need not be put in the position of having to sacrifice it owing to its not being in a state of repair. This power will enable the Commissioner to function in the interests of all parties. When the price realized from the sale of a property is below the amount due by the purchaser to the commission the former gets nothing, and, as a matter of fact, is involved in a liability, but if the sale price is more than the purchaser’s liability to the commission the purchaser is entitled to the equity. A buyer of a property is mostly influenced by its appearance upon inspection. If £40 is spent upon it the value of a home is enhanced and the Commissioner gets a better price for it. The soldier is thus protected. He has a better chance of getting some equity than he has if nothing is done to renovate the premises which he has vacated. This provision is also obviously in the interests of the revenue of the country.
– I quite recognize the force of the Minister’s contention that it is advisable to keep vacated premises in good repair, but that does not dispose of the fact that in numerous cases where homes are vacated by the borrowers and resumed by the Commissioner, the trouble is due to the inability of the occupiers to keep up their payments. In that respect they have proved to be failures, yet it is now proposed to load them with a liability. That liability is certainly limited to £40, but £40 is a little fortune to a man who has nothing, or has only a small chance of earning a decent wage.
– The power is already given to the Commissioner under section 31 in cases where the purchaser is still in possession.
– A men in possession of his home has some immediate interest in keeping it in decent repair, but if he has turned out a failure, and the Commissioner has resumed possession of his premises, I see no advantage in loading him with this liability to pay for the cost of repairs, particularly when he has only a remote possibility of deriving any benefit from the expenditure incurred. I think that the proposedsub-section should be amended to read as follows : -
Where the Commissioner has entered upon and taken possession of any land and dwellinghouse he may effect all repairs which he deems necessary, notwithstanding that the cost to the Commissioner is thereby increased to more than £950.
If repairs effected by the Commissioner make a property more saleable, he gets the benefit of it, but to place upon a man who, after years of struggling, has been compelled to vacate the home he has been endeavouring to purchase, the liability for the cost of subsequently effected repairs is like adding insult to injury. Such proposals create heartburnings and intensify the grievances of the returned soldiers.
– Although there is a good deal in the contention of Senators Rae and Dunn,. I fully appreciate the difficulty of the Acting Attorney-General (Senator McLachlan). Will the Minister consider the granting of relief to a returned soldier who is compulsorily sold up under the principal act, and, as a result of such sale, has no financial return due to him ? I appeal to the Minister to consider that proposition since the provision of war service homes is only a portion of the general repatriation scheme of the Commonwealth Government. Men who have been settled on the Murray and other lands are in a similar position to those provided with war service homes in “the metropolitan area. Settlers on Murray lands have had approximately £2,000,000 written off their liabilities, and while their individual financial responsibilities have been proportionately written down, the man in the metropolitan area who has also been repatriated has had nothing written off his liability. It seems unfortunate that returned soldiers whom the Commonwealth Government set out to repatriate have, owing to unemployment and other causes, been compelled to give up their homes after spending possibly £50 or £60 upon them, and that by reason of a deflation in land values their properties are now worth considerably less than when they were acquired. In addition to making that loss, they are now being asked to meet the cost of repairing their properties, which may amount to £40, and is additional to the amount they have already lost. I think that the Govern- ment should be entitled to claim up to £40 in respect of any amount due to the returned soldier occupant after a successful sale had been effected; but I contend that if we are to have this portion of our repatriation scheme consistent with the land settlement scheme under our general repatriation policy, we should not compel a returned soldier occupant of a war service home, who does not receive any amount from the Commissioner in respect of the sale of his home, to pay a sum such as that provided for. If Senator Rae would withdraw his amendment, the Minister might consider the addition of these words to the proviso -
And shall not in any event be payable except in cases where by and under the sale some amount is payable by the Commissioner to the purchaser or borrower.
– The honorable senator suggests that the cost of repairs should be collected from the purchaser only when a surplus occurs as the result of a sale.
– Supposing there is a liability of £800 on a property when default is made, and the Commissioner resumes possession, effects repairs, and eventually sells it for £750.
– The home is sold, and the contract is cancelled.
– But £40 has to be paid by the purchaser or borrower.
– Nothing has to be paid in such cases.
– Why not?
– The cancella- , tion of the contract removes the liability of the purchaser.
– He is only liable to pay up to the date of the cancellation of the contract.
– I appreciate the point that when a contract is cancelled the liability of the returned soldier occupant to the Commissioner ends. The commission may enter upon and take possession of a property, and after effecting what repairs are deemed necessary may sell the property. But there is no reference in this proposed new sub-section to any cancellation of the contract. In order to overcome the difficulties which the Commissioner encountered in the Davies case, he desires provision to be made, that he shall not waive his right to treat the contract as a continuing contract.
– That is not so. The limit of the purchaser’s liability is given in sub-section 1a. This provision will not affect an occupant until he has money due to him.
– The mere fact that the Commissioner enters into possession does not cancel the contract of tenancy. Is the Minister satisfied that the act of the Commissioner in entering upon and taking possession of a property constitutes a cancellation of the contract or a waiving of the rights of the purchaser? If the Commissioner cancelled the contract in the first place, obviously it would be an anomalous position to compel the tenant after cancellation to pay the cost of repairs. It seems to me that under the proposed new sub-section, it is possible for such an interpretation to be placed upon it. Even though a loss of £50 may have been incurred by the purchaser or borrower, he may still have to pay an additional £40. I believe that a similar point was taken by an honorable member in another place, when the Assistant Minister in charge of the bill said that if there was anydoubt in such matters, it was not the intention of the Government to compel a returned soldier occupant to pay such amounts, unless money was due to him as a result of the sale.
– I can quite understand some confusion arising out of this legislation. Section 31 of the principal act provides -
Every purchaser and every borrower shall, until the whole amount of purchase money or advance due by him has been paid or repaid keep in good order and repair, to the satisfaction of the Commissioner, all buildings, fences, fixtures, and improvements upon the land comprised in the contract of sale, mortgage or other security.
If after notice in writing by the Commissioner any purchaser or borrower has not complied with the requirements of this section
It then sets out what the Commissioner has power to do. The section proceeds -
That section sets out the relation existing between the purchaser, or borrower and the Commissioner while the purchaser or borrower is in occupation. The time may arrive when the purchaser or borrower is not in possession, and it would be most unfortunate if the Commissioner had not the power to do what under section 31 of the principal act he is authorized to do should the purchaser or borrower not be in occupation.
-He would not leave the dwelling unless forced to do so.
– It is not a matter of beingforced out. Purchasers or borrowers sometimes let the property to relatives or friends, because they cannot afford to pay the amount expected of them, and occupy a cheaper house.
– In such cases the purchaser or borrower would still be held to be in possession.
– I think not. The principle upon which the principal act is drafted is occupancy by the returned soldier.. Owing to economic and other conditions, many changes have occurred since the principal act was passed, and soldiers’ homes are now vacated in circumstances I have mentioned. The Government desires to meet the position brought about in the Davies case, and to give the Commissioner the right to take possession in order to effect repairs. I am assured that if there is not a surplus after the sale has been effected the Commissioner does not recover from the borrower, and if there is, the soldier is refunded any amount due to him after necessary costs have been met. In these circumstances, the purchaser or borrower has it both ways.
– While I appreciate the remarks of the Minister, I intend to support the amendment moved by Senator Rae.
The CHAIRMAN (Senator Plain).There is no amendment before the Chair.
– I had hoped that the Minister would accept my suggestion, and himself move an amendment. As he has not done so, I now move -
That all the words from “and”, first occurring, to the word “ property “ inclusive, proposed new sub-section lc, paragraph a, be left out.
The sub-section would then read - Where the Commissioner has entered upon and taken possession of the land and dwellinghouse
The amendment would not impose any liability on an occupier whose property had been resumed.
– I support the amendment. Honorable senators may know of a scheme of land settlement for returned soldiers which has been inaugurated by Canon R. B. S. Hammond, of the Church of England. On the banks of the Nepean river, in the Penrith district, numbers of returned soldiers have taken up blocks of land comprising from three to five acres. Some of them may be purchasers of war service homes. Let us suppose that while working on their blocks, their homes are destroyed by a cyclone. Would the Commissioner regard the cyclone as an act of God?
– Damage by cyclone is covered by the insurance policy taken out in connexion with all war service homes.
– It may be that a home is damaged or destroyed by vandals.
– Vandalism also is covered by insurance.
– That is so.
– In that case, I cannot understand the Minister’s objection to my amendment. Surely, he does not desire that the Commissioner shall have it both ways - that he may collect from the insurance companies and also from the occupier.
Question - That the words proposed to be left out (Senator Rae’s amendment) be left out - put. The committee divided. (The Chairman - Senator Plain).
Majority . . . . 15
Question so resolved in the negative.
Amendment (by Senator McLachlan) agreed to -
That after the word “ that “ in the proviso to proposed new sub-section lc, paragraph a, the words “ in respect of any repairs effected after the fifteenth day of March, 1932” be inserted.
Clause, as amended, agreed to.
Clause 4 agreed to.
– I gave notice of my intention, when dealing with clause 3, to move for the insertion of additional sub-sections to section 36.
TheCHAIRMAN.- Clause 3, as amended, has been agreed to.
– Apparently, it is now too late to move as I intended. I shall not squeal, but shall take in a sporting spirit what is coming to me. In all probability, the committee would not have agreed to my amendments had I moved them. I shall not lay the blame on you, Mr. Chairman, for I believe that at all times you desire to be fair. I can only say that I missed my opportunity to move the new sub-sections because a crosscurrent of conversation prevented me from hearing you, sir, put the question “that clause 3, as amended, be agreed to “.
– I take it that the honorable senator would like to see proposed new sub-section 2 omitted from the bill.
– Yes. I regret my inability to move the amendment I had in mind ; but I accept the situation as it stands.
Title agreed to.
Bill reported with an amendment.
Motion (by Senator McLachlan) proposed -
That the report be adopted.
Amendment (by Senator Daly) agreed to -
Th at the bill be recommitted for the purpose of reconsidering clause 3.
In committee (Recommittal) :
.- I move-
That the following new paragraph be inserted after paragraph (5) proposed new sub-section (lc) : - “(c) if at any time the Commissioner receives from the sale of a property more than the price charged to the previous purchase*; (after making due allowance for the rise or fall in property values) such difference shall be credited to the previous purchaser or borrower provided that he or she can show the increased value is due to improvements made by the previous purchaser or borrower.” 1” do not wish to labour this question, so I shall merely say that the arguments which I used in support of Senator Rae’s amendment apply, with equal force, to the one now before the Chair.
– I am advised that when a home held on mortgage is resold by the commission any surplus is paid to the borrower when the new purchaser creates the necessary margin of security. This is provided for in section 36, sub-section 2. If a loss occurs, the commission does not recover from the borrower, but shoulders the loss itself. When a contract of sale is cancelled the interest of the purchaser in the new home thereupon ceases. He is not held liable for any loss, nor is any surplus paid to him. If the purchaser’s deposit and principal repayments equal 10 per cent. of the capital cost, the whole of the surplus on resale is set off against the arrears of instalments. If the purchaser’s deposit and principal repayments do not equal 10 per cent. on the capital cost, the surplus on resale over the original loan to the extent of the purchaser’s deposit is set off against the arrears of instalments. I submit that the department deals in a very generous way with returned soldier occupants of war service homes. I also emphasize that the act, if this amendment were inserted, would be utterly impossible to administer. The frequent assessments would involve the department in tremendous cost without satisfaction to any of the parties concerned. I, therefore, suggest the honorable senator should not press his amendment.
Question - That the amendment be agreed to - put. The committee divided. (Chairman - Senator Plain.)
Majority . . . . 10
Question so resolved in the negative.
– I move -
That the following new sub-section be inserted: - (1d). The powers conferred upon the Commissioner under sub-section 1 of this section shall not be exercised by him in any case where the failure of aborrower or purchaser to pay any instalment or money or part thereof referred to in that sub-section is due to the fact that the borrower or purchaser is, or has recently been, unemployed.
Again I would say that everything which I said in support of Senator Rae’s amendment, and in my second-reading speech applies also to this amendment. I give the Government credit for a sympathetic administration of the act, and I do not suggest that returned soldier occupants of war service homes will be unduly harassed, but if this amendment is inserted they will be definitely protected.
– In the administration of the act, no purchaser or borrower is asked to make any payment unless it is considered that he is in a position to do so. A court would not enforce a claim of the department unless it could be shown that the debtor was able to pay. It may, however, be explained that while a purchaser might not be in regular employment, he might still have an income by way of pension, allowances, &c, equal to the basic wage. The amendment is not necessary, and I mustoppose it.
– A slight alteration of the amendment could be made to provide for occupants of war service homes who, although unemployed, might have some other source of income, and therefore could beexpected to honour their obligations. This would remove the Minister’s objection to it. He has toldus that payments are not enforced unless the occupants are in. a position to meet the claims. If this is the policy of the Commissioner, no harm could be done if we inserted in the bill a provision giving specific protection to unemployed occupants of war service homes.
– It is the law already.
– These amendments have not been conjured up by me and my colleagues for the sake of limelighting; they have been suggested by the returned soldiers themselves. There must have been instances in which they felt aggrieved by the lack of these provisions, or they would not have suggested their incorporation in the act. When a large body of delegates from different branches meet in conference, any proposal that is of no advantage to them is immediately scouted. It is only reasonable to suppose that, if this has been the practice of the commission that body would not be shouldered with any further responsibilities if it were enacted. The Minister might have sufficient graciousness to please this large body of men, by giving legislative effect to what, he avers is the practice of the commission.
– The principle of the amendment has my sympathy. There can be no doubt as to the object at which Senator Dunn is aiming. During the administration of the War
Service Homes Commission since I returned to Australia in 1920, there have been a number of stormy periods; but one would be quite sincere and honest in saying that latterly the administration has been quite sound, sympathetic and generous. At the present time, pro rata payments are accepted from purchasers or borrowers under the act, according to the following scale: -
AlthoughI am in sympathy with the amendment, I cannot bring myself to support its incorporation in this measure.
.. - I appeal to the Minister to accept my proposal. These amendments have not been drafted in dark corners in this building; they express the wish of returned soldiers who met in conference to consider the operation of the act. Every honorable senator will agree that those who are charged with the administration of war service homes have always been prepared to do whatever they could for any returned soldier who was down and out. But if this provision were included in the bill, returned soldiers would have the assurance that they were safeguarded by act of Parliament.
Question - That the proposed new subsection be inserted (Senator Dunn’s amendment) - put. The committee divided. (Chairman - Senator Plain.)
Question so resolved in the negative.
Provided that nothing contained in this section shall affect any judgment of the Supreme Court of a State given, prior to the commencement of this sub-section, in favour of any person in respect of his liability to pay any money which became due under a contract of sale prior to the cancellation of that contract.
– I move-
That sub-clause 2 be left out.
It is out of all reason to make the provisions of this clause apply retrospectively to the commencement of the act in 1918. In the event of the death of a returned soldier having occurred in the intervening period, power will be given to the commission to persecute his dependants for the recovery of any amount that might have been owing at his death. Surely the returned soldier members of the committee will support me in this attempt to have such a provision excluded from the bill ! It was Senator Duncan-Hughes who first drew attention to this matter, and I should like to hear him express further views upon it.
– The honorable senator has heard my views once, and I shall not repent them in detail. This sub-clause is of considerable importance, in that, with respect to any returned soldier who has not been so fortunate as to have had the test case decided in his favour, it will operate back to the time of the passing of the original act. I await the reply which I invited earlier from the Minister. As I read the clause, it does not appear to be just. Often, in another place, I had cause to refer to retrospective legislation. As a general rule, I do not like it. It is not fair to invoke the law in favour of the party which is passing the legislation. I remember that, years ago, in another place, the present Attorney-General (Mr. Latham) and I repeatedly opposed such legislation : some excellent speeches by him on this subject can be found in Hansard for 1923 or 1924. It appears to be that the passing of this clause may cause hardship to a considerable number of people. Indeed, there may be some persons who waited for the test case, to take advantage of it if it should happen to go their way. As I understand the position, the court has held that a regulation which was sought to be imposed was, in fact, invalid, and the purpose of this sub-clause is to declare that notwithstanding the decision of the Supreme Court, the regulation shall, in fact, be valid from the time of the passing of the act. “ The regulation is to become part of the act itself. I know that the general custom on such occasions as this is to invoke the moral right that, as a certain thing was intended to be laid down by regulation, the taxpayer or the person affected ought to pay the amount required from him. But in this instance we are dealing with legal rights, and I cannot justify carrying back the law for fourteen years, and setting it in motion against a number of people whom it must detrimentally affect.
– No one has a greater abhorrence of retrospective legislation than I have, but until regulation 17 was declared ultra vires by the court it had been in force for very many years, and all contracts between the “War Service Homes Commissioner and purchasers or borrowers had been made in the belief that it was good law. The regulation provided that, notwithstanding the cancellation of any contract of sale, the Commissioner could sue for and recover any instalment of purchase money or any other money which became due under the contract at any time prior to the date of cancellation. As honorable senators will see, a similar provision has been embodied in proposed new sub-section 1a. Thousands of pounds have been paid by various purchasers to the Commissioner under the belief that this regulation was good law, and its validity was not questioned until December last, when the matter was taken to the Victorian Full Court by the Mr. Davies, whose rights are preserved in the latter part of the clause. Judgment was given on the 19th December, 1931, and we propose to give Mr. Davies the benefit of it, but to exclude others. This litigant undoubtedly took advantage of the law-, but all the other people who made contracts with the Commissioner believed that they were contracting under the provision contained, in regulation 17. If the proposed new sub-section were not made retrospective it would enable all past transactions to be re-opened, and would prevent the recovery of other moneys due to the Commissioner by .various occupants of houses.
– I wonder how many wore conversant with the legislation when they entered into their contracts:
– The contract says in express terms that it is subject tn the statute and the regulations made thereunder. For all this period of years the validity of this regulation was not questioned. Mr. Davies succeeded, I think, on a technical point. A statement made by the Minister in January last represents the true position. He said -
The regulations have been in operation since 1021, and have been enforced until the recent case without question. If the position disclosed by ‘ the Davies case were allowed to remain, serious difficulties would arise in regard to actions taken in the past and the Commonwealth would suffer losses which at present it could ill afford.
Yesterday, I informed honorable senators that £10,000 is now held by the Commonwealth, representing money to which some purchasers believe they are entitled, and that £28,000 is now in process of being collected as due to the Commonwealth.
The Commissioner feels that in the circumstances that prevail, and with a very generous administration of the act, the provisions of this regulation should at least be validated as from the date on which it was made.
Senator Dunn knows at all events other honorable senators are aware - that the practice of the War Service Homes Commission has never been to endeavour to recover from the estate of a deceased soldier.With the death of the man, the obligation is ended and nothing further is done.
In considering this amendment, I ask honorable senators ‘to bearin mind that the revenue must be protected, that the act is administered generously, and that all contracts for the purchase of war service homes were made in the belief that they were covered by this provision. There was no doubt on the point until the ingenuity of someone, possibly a member of my own profession, discovered that a slip had been made in the framing of the regulation, and that it was ultra vires of the power of regulation conferred by theact. I venture to suggest that if the Senate took itself back to the time when it was originally legislating and these regulations were being framed it would have legislated as now proposed.
– I agree with the Minister that when it is obvious that the intention of the Parliament has not been sufficiently and clearly expressed in language which leaves no doubt as to what its intention was, no hardship is inflicted on any person if, as the result of an interpretation of that legislation by the court, it is found necessary to employ other language to make the intention of Parliament clear and to make it retrospective. On many occasions in respect of our income tax law, and other legislation, the previous Government, despite the violent opposition of certain other honorable senators who now form the ministerial party, passed similar retrospective provisions. As the Minister has given us his assurance that this particular provision is not intended for the purpose of instituting any newpractice, and that it is simply required to protect the War Service Homes Commission, and prevent any one from taking advantage of what now appears to have been an obvious flaw, I think that we should agree to the provision. I cannot see the force of Senator Dunn’s argument. If Parliament would have passed this law, as it understood it was passing it prior to the decision in the Davies case, there is only one logical conclusion to come to, and that is that no hardship can be inflicted by putting the law back to what it should have been.
– If that is not done future borrowers will get a worse deal than past borrowers.
– Yes. We may be setting up two classes of borrowers. When Parliament is of opinion that a retrospective provision is necessary because of the fact that it would have enacted it at an earlier stage, and was, indeed, under the impression that it had already done so, no injustice can be done. I have already mentioned previous instances.
– Were they due to faulty draftsmanship ?
-Not necessarily. Parliament was simply asked to employ other language to express more clearly its original intention.
– Have not these slips occurred far too often; for instance, in the income tax law to which the honorable senator has referred ?
– Possibly, but the Privy Council, if it had been appealed to, might have discovered that no such slips had occurred. Except in certain cases the High Court is our final court of appeal, and we must accept its decisions. But, in doing so, if we believe that the language in the original law did not adequately express the intention of Parliament, it is manifestly our duty to alter it, and also make the alteration date back to the time when the law was originally enacted. On the assurance of Senator McLachlan that it is not intended to institute any new procedure, but simply to carry out the practice followed in the past, and concerning which there has been no complaint, I think the mover of the amendment might justifiably withdraw it. I cannot see my way to support it.
– I have listened with great interest to what Senator Daly has had to say about legislation of a retrospective character, particularly in the case of income tax assessment measures. We have had frequent examples of that class of legislation, not only in the Federal Parliament, but also in State legislatures. A taxation commissioner having lost a case before a court, has straight away applied to Parliament to amend the law and make it retrospective. I have always regarded such legislation as obnoxious and, unless the Minister can put up a better case than he has this afternoon, I shall certainly vote for the amendment.
Question - That sub-clause 2 be left out (SenatorDunn’s amendment) - put. The committee divided. ( Chairm an - Senator Plain. )
Majority . . . . 10
Question so resolved in the negative.
Clause agreed to.
Bill reported without further amendment.
Motion (by Senator McLachlan) proposed -
That the reports be adopted.
. - I takethis opportunity to refer to the action of members of what is known as the official Opposition in this chamber, in connexion with several amendments, which I moved in commtee. It is unnecessary to place on record that there are two sections of the Opposition in this chamber and in another place.
SenatorThompson. - There seems to be a third budding.
– I am not certain about that. While the members of the so-called official Opposition in another place divided the committee and voted in support of amendments similar to those which I moved, some members of the socalled official Opposition in this chamber, including Senator Barnes and Senator Dooley, voted against them.
– The honorable senator is not in order in making these remarks, first, because they are irrelevant, and, secondly, because he is reflecting on a vote just recorded by a committee of the whole Senate without expressing his intention of moving for its rescission. I ask the honorable senator not to continue in that strain.
Question resolved in the affirmative.
Bill read a third time.
Bill received from the House of Representatives.
Standing and sessional orders suspended, and bill (on motion by Senator McLachlan) read a first time.
– I move -
That the billbe now reada second time.
This bill is to remedy a minor defect in section 62a of the Land Acquisition Act. That section reads -
Any land which has been acquired by the Commonwealth under this act may, if the GovernorGeneral thinks fit, and upon such terms as he directs; be transferred to and vested in any authority incorporated by any law of the Commonwealth.
It will be seen that there is no reference in the section to lands vested in the Commonwealth under section 85 of the Constitution. That section, it will he remembered, deals with the transfer of State departments to the Commonwealth, and provides that property used exclusively by such departments shall vest in the Commonwealth. The proposed amendment will correct the omission by extending the provisions of section 62a to lands which have become Commonwealth property, pursuant to section 85 of the Constitution. This measure is urgent, and is entirely of a machinery character.
.- This bill, which appears to be necessary and quite innocuous, is one which every honorable senator should support. It is a purely machinery measure, required’ by the Commonwealth for the good of the Commonwealth, and I offer no objection to its speedy passage.
Question resolved in the affirmative.
Bill read a second time and passed through its remaining stages without amendment or debate.
Motion (by Senator McLachlan) - by leave - agreed to -
That leave of absence he granted to every member of the Senate from the determination of the sitting this day to the day on which the Senate next meets. .
Motion (by Senator McLachlan) agreed to -
That the Senate, at its rising, adjourn till a day and hour to be fixed by the President, which time of meeting shall be notified toeach senator by telegram or letter.
Motion (by Senator McLachlan) proposed -
That the Senate do now adjourn.
– I should like from you, Mr. President, as the custodian of the Standing Orders, which govern the conduct of the debates in this chamber, an explanation of the ruling that you gave a few minutes ago, that I was out of order in discussing certain matters on the third reading of the War Service Homes Bill. I have in mind an occasion on which Senator Lawson, who was absent from the sittings of the Senate during the debate on the second reading of a measure dealing with the sales tax, set forth the Victorian viewpoint at the third-rending stage. I do not say that you, sir, were actuated by any spirit of vindictiveness - that is far removed from my mind - but I should like to know in what way I was out of order when I attempted to speak to the third reading.
– The honorable senator did not speak to the third reading, hut to the motion for the adoption of the report. I ruled ‘him out of order, first, because his remarks were irrrelevant to the subject under discussion, and, secondly, because he did not comply with Standing Order No. 415, which provides that-
No senator shall reflect upon any vote of the Senate except for the purpose of moving that such vote be rescinded.
If the honorable senator wishes to disagree with my ruling, I give him the privilege of moving to that effect now, although the time for dissenting from my ruling has really passed.
– I do not wish to take that course, Mr. President. . I have already said that I am confident that your ruling was given in no spirit of vindictiveness.
– The honorable senator has no right to criticize a ruling of the Chair, unless he wishes to disagree with it.
– The only place that I can disagree with it is outside the chamber.
– I do not know what the honorable senator means.
– I mean on the hustings.
– The honorable senator may not use threats, political or otherwise.
– I used no threat. Surely I can express my opinions on the hustings ?
Question resolved in the affirmative.
Senate adjourned at 3.20 p.m. till a day and hour to be fixed by the President.
Cite as: Australia, Senate, Debates, 17 March 1932, viewed 22 October 2017, <http://historichansard.net/senate/1932/19320317_senate_13_133/>.