8 October 1942

16th Parliament · 1st Session

The President (Senator the Hon. J. Cunningham) took the chair at 3 p.m., and read prayers.

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Assent to the following bills reported : -

Appropriation Bill 1942-43.

Appropriation (Works and Buildings) Bill 1942-43.

States- Grants Bill 1942.

Loan Bill (No. 3) 1942.

Pay-roll Tax Assessment Bill 1942.

Black Marketing Bill 1942.

Income Tax Assessment Bill (No. 9) 1942.

Income Tax Bill (No. 2) 1942.

War-time (Company) Tax Assessment Bill 1942.

Superannuation Bill. 1942.

Sales Tax Assessment Bill (No. 1 ) 1942.

Women’s Employment Bill 1942.

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Message received from the House of Representatives intimating that Mr. Breen had been appointed a member of the Joint Committee on Rural Industries.

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Secret Meeting of Senators and Members

Motion (by Senator Collings) - by leave - agreed to -

That a joint meeting of members of the Senate andof the House of Representatives be convened at 8 p.m. this day, for the purpose of discussingin secret the present war, and hearing confidential reports in relation thereto.

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– “Will the Minister representing the Minister for Munitions supplythe Senate with answers to the following questions : -

  1. When did the Welshpool Ammunition Factory commence operations?
  2. What is the present rate of production?
  3. When is it expected that a factory of this size will attain full production?
  4. Is the progress of the factory in accordance with the schedule of planning?
Senator ASHLEY:
Minister for Information · NEW SOUTH WALES · ALP

– The Minister for Munitions has supplied the following answers : -

  1. April, 1942.
  2. The first batch of complete ammunition is ready for submission for Army inspection.
  3. December, 1942.
  4. Through various causes, mainly difficulties in manufacture of plant, which is all Australian, the progress of the factory has been delayed slightly. Nevertheless, very good work has been done if compared with the progress of factories in the eastern States. Despite the difficulties, the lag in progress will be overcome early in the new year.

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Senator ALLAN MacDONALD.Will the Minister representing the Minister for the Army supply the Senate with answers to the following questions : -

What hours do the Army nursing sisters work in the various military hospitals?

What provision is made for leave, either weekly, monthly, or yearly?

Are there different working conditions and hours for sisters in the various States?

If so. would it not be better if uniform hours and conditions for Army nursing sisters were determined by the central medical authority at Army Head-quarters, Melbourne, and applied to all States?

Senator FRASER:
Minister for External Territories · WESTERN AUSTRALIA · ALP

– The Minister for the Army has supplied the following answers : - 1.In hospitals in operational areas, when wounded are being brought in, work must be continued to completion. Only the matron in charge of the hospital can organize temporary relief. In military hospitals in other than operational areas, where work is more stable, approximately 48 hours a week covers average working time.

  1. General Routine Order No. 309 sets out leave periods on weekly, monthly and yearly bases, as follows: -

    1. Recreation leave may be granted on the basis of two days per calendar month, provided that not more than 10 per cent. of strength will be absent from any unit at the one time. This proviso may be altered to meetspecial circumstances by Army and corps commanders.
    2. A member may be permitted to accumulate leave for which she is eligible under sub-paragraph (a) hereof for twelve months. (c) A member whose destination falls within the following categories will be obliged to accumulate the leave for which she is eligible under subparagraph (a) hereof for the periods shown, as applicable to such category : -
    1. where the journey exceeds 100 but does not exceed 500 miles from the place in which the member is serving - for three months;
    2. where the journey exceeds 500 miles but does not exceed 1,250 miles from the place in which the member is serving - for six months;
    3. where the journey exceeds 1.250 miles from the place in which the member is serving - for twelve months. (d) When accumulated leave is taken by a member, there may be added to the period of such leave as travelling time -
    4. if leave is taken in pursuance of sub-paragraph (ii) of sub-paragraph (c) - a period of two days.
    5. if leave is taken under subparagraph (iii) of subparagraph (c) - a period of four days.

Recreation leave as aboveis in addition to one rest day a week.

  1. No. but subject to conditions as outlined in paragraph 1.
  2. This must be governed by local conditions and the general tactical situation.

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– In view of the statement by the Government that it proposes to set aside £2,000,000 to encourage the production of dairy produce, does the Minister representing the Minister for Commerce consider that that sum will be sufficient to ensure to those engaged in the industry a fair standard of living, to encourage production and to give stability to the industry?

Senator FRASER:

– I understand that a bill will be presented to Parliament relating to this matter. When the honorable senator peruses the measure, he will be able to decide whether, in his opinion, it makes adequate provision along the lines indicated by him.

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Senator BRAND:

– When will the Minister for Trade and Customs bring into operation the new system of wharf patrol to prevent pillaging on wharfs and between wharfs and warehouses?

Senator KEANE:
Minister for Trade and Customs · VICTORIA · ALP

– The regulations are in draft form and are now being studied by the Director of Home Security. It is hoped that finality in regard to them will be reached next week.

Senator ALLAN MacDONALD.Have any appointments been made to the detective force in connexion with this matter?

Senator KEANE:

– Not yet.

Senator LAMP:

– Can the Minister give an assurance that the regulations will cover transit of cargo from the ship to the wharf and from the wharf to the warehouse ?

Senator KEANE:

– -Recently. I informed the Senate that the regulations would provide for a close guard on the wharf, the entrance to the wharf, and the transport of goods from the wharf to the warehouse. The guard will consist of trained civilian police who in this respect will have complete charge of the waterfront of Australia.

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Senator DARCEY:

– Is the Minister representing the Treasurer in a position to supply answers to three questions which I asked last week in relation to inscribed stock and treasury-bills?

Senator KEANE:

– The information has not yet come to hand. I shall take early steps to obtain it.

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Senator COOPER:

– I present the fifth interim report of the Joint Committee on Social Security.

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Senator FOLL:

– ‘Can the Minister for the Interior say whether it is correct, as stated in yesterday’s press, that a number of men, known as the Works Committee, on a certain urgent defence undertaking walked off the job in contravention of the law and came to Canberra to interview the Minister in connexion with conditions existing on that job? Does he not think that such action constitutes a breach of the law, aud practically amounts to men deserting their country in the face of the enemy? If so, what action does the Government propose to take in the matter?

Minister for the Interior · QUEENSLAND · ALP

– I have no knowledge of the incident to which the honorable senator has referred. I can say definitely that no one has waited on me in connexion with it.

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Senator COOPER:

– Can the Minister representing the Minister for Commerce say what stage has been reached in connexion with the- choice of sites for the erection of plants for the dehydration of meat?

Senator FRASER:

– The work of selecting the sites has not yet been completed. In Queensland, the matter is still under consideration. The most favorable sites will be- chosen, having regard to transport arrangements.

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Senator ALLAN MacDONALD.Will the Minister for Trade and Customs give consideration to the making of an announcement as to the safeguards taken by his department to ensure that no trading with the enemy takes place within Australia, and that action will be taken in respect of neutral vessels concerning which suspicion may exist? If a statement on the subject cannot be made to-day. I ask that it will be made before the Senate adjourns for the forthcoming recess.

Senator KEANE:

– The matter referred to by the honorable senator is under almost daily consideration. I shall secure for the honorable senator a statement in regard to it before the termination of the present sittings.

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Amalgamation of Force

Senator BRAND:

asked the Minister representing the Minister for the Army, upon notice -

  1. Was the Minister for the Army correctly reported in the daily press as saying that the Government had no intention of amalgamating the Australian Imperial Force and the Australian Military Forces?
  2. If so, on whose advice was the decision made?
  3. Will the Minister say what are the advantages of having two distinct land forces in the Australian Army?
Senator FRASER:

– The Minister for the Army has supplied the following answer : - 1, 2 and 3. As the honorable senator knows, it is not in accordance with parliamentary procedure to forecast in reply to a question in Parliament the intentions of the Government on matters of policy. I am not aware of the particular press report to which the honorable senator refers. Provision is made for members of the Militia Forces, to transfer voluntarily to the Australian Imperial Force provided that they are medically fit, and we have in the Australian Imperial Force in Australia to-day a far greater number of men than at anyprevious period. There is no necessity to apply conscription for overseas service. Australia will honor all her obligations without doing that. Furthermore, the Australian Army is three times larger and infinitely betterequipped to-day than the Army was when the Curtin Government took office a year ago.

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Bill received from the House of Representatives.

Motion (by Senator Collings) proposed -

That so much of the Standing and Sessional Orders be suspended as would prevent the bill being passed through all its stages without delay.

Senator McLEAY:
Leader of the Opposition · South Australia

– I oppose the motion for three reasons. First, the present is not an opportune time to introduce such a bill as this. Secondly, the measure is of such farreaching importance that it should not be rushed through the Senate in the dying hours of the session. Thirdly, the State of Western Australia is not at present fully represented in the Senate. We are aware that a secret meeting of senators and members will be held at8 o’clock this evening, and that it is the Government’s intention that Parliament should adjourn for the recess to-morrow.

Senator FOLL:

.- Whilst I intend to support the measure, I urge the Leader of the Senate (Senator Collings) not to press the motion. In respect of a measure of this kind it is unwise to give any appearance whatever of undue haste in dealing with it. Personally, I think that much of the opposition to this measure outside Parliament has been developed ‘by people who do not know anything about it. I do not regard the bill as dangerous, or likely to do injury in any respect. However, in order that a fair opportunity shall be given to honorable senators to discuss the bill fully, and also to set public opinion at rest on the matter, the passage of the bill through the Senate should not he rushed. For those reasons, whilst I support the bill, I intend to oppose the motion.

Senator A J McLACHLAN:

– As this measure is somewhat complicated, I suggest that the Leader of the Senate (Senator Collings) give an undertaking to the Leader of the Opposition (Senator McLeay) that he will not proceed with it this afternoon beyond the moving of the second reading. If that course be followed, honorable senators will be given an opportunity to digest the contents of the measure. So far, we have not had sufficient time to consider the volume of literature pertaining to the bill which has been circulated among honorable senators by the Attorney-General (Dr. Evatt).

Minister for the Interior · Queensland · ALP

in reply - This is purely a matter of procedure. Every honorable senator knows that the session is drawing to a close, and that we have other bills to consider between now and to-morrow afternoon.

Senator McBride:

– Why to-morrow afternoon?


– That is the responsibility of the Leader of the Senate. Further, honorable senators have already heard my announcement, to which they agreed, that a secret meeting of senators and members will be held at 8 o’clock this evening. The motion does not mean that the bill will be rushed through this chamber. A similar motion is moved in respect of many measures received from the House of Representatives.

Question put. The Senate divided. (The President - Senator the Hon. J. Cunningham.)

AYES: 16

NOES: 14

Majority . . . . 2



Question so resolved in the affirmative.

Bill (on motion by Senator Ashley) read a first time.

Second Reading

Senator ASHLEY:
New South WalesPostmasterGeneral · ALP

– I move -

That the bill be now read a second time.

The question now before the Senate does not affect in any way whatsoever the constitutional status of Australia. That was settled in 1926. The adoption by this Parliament of five sections of the Statute of Westminster is the only question before the Senate. On two previous occasions a bill to adopt these sections was introduced into the House of Representatives by a government supported by my honorable friends opposite, and the bill would have been passed but for the termination of the sessions during which they were introduced, first by prorogation and secondly by dissolution. This measure is prompted by more urgent considerations than on the first two occasions, for a totalitarian war has since intervened and the irksome inconvenience experienced during peace-time as a consequence of the failure to adopt the sections have, after three years of war, become highly dangerous restrictions threatening vital war regulations with invalidity. That the present bill was to be introduced during this period of the session has been known for some time. During the last sittings of Parliament, my colleague the Attorney-General (Dr. Evatt) announced in the House of Representatives his intention to provide for the adoption of these sections of the statute during these sittings. About six weeks ago he forwarded copies of a memorandum which represented the views of the Solicitor-General and himself to the right honorable member for Darling Downs (Mr. Fadden), the right honorable member for North Sydney (Mr. Hughes), and the right honorable member for Kooyong (Mr. Menzies), setting forth the urgent reasons which made the adoption so necessary. Shortly afterwards, on the 22nd September, be wrote to the same three gentlemen intimating that he was prepared to confer with them and with any other members of the Opposition who were interested. Prior to the introduction of the bill in the House of Representatives, the AttorneyGeneral wrote to all senator? and members notifying them of the Government’s intention and placing at their disposal, should they require technical information on any points, two gentlemen whom he considered experts on this particular topic, and also stating that he himself was available to discuss the matter with any senator or member. That letter was followed by a monograph which so clearly indicated the legal effects of the adoption, and of the failure to adopt, that I feel sure that all honorable senators will join with me in expressing to my colleague their appreciation and thanks for the time and trouble which he must have expended to ensure that all those whose duty it is to consider the measure have the fullest information before them as to the legal technicalities involved. It is well, I think, to recall the outstanding qualifications to advise on this matter of not only the AttorneyGeneral, but also the Solicitor-General. His wide learning, his experience as a member of the judiciary and his literary works on this subject, combined with his exceptional and outstanding ability, have made the Attorney-General a recognized constitutional authority of Empire-wide repute. The Solicitor-General, Sir George Knowles, is not only a gentleman who ranks high in the list of constitutional lawyers, but also has had half a life-time of experience in drafting and in handling legal administrative problems of the Commonwealth. It is difficult to conceive of any two authorities on whose opinions this Parliament might more safely rely - the ministerial head and the permanent non-political head of our legal department.

Permit me to quote an extract from a memorandum on the question which the Solicitor-General . submitted to the Attorney-General on Friday last, after the first debate on the subject in the House of Representatives -

I repeat the opinion and recommendation which I expressed to you in connexion with the adoption of the statute, which report and recommendation are embodied in paragraph 94 of the monograph which you circulated. As hag alreadybeen pointed out, the practical difficulties of the matterare even greater than the particular cases which can he mentioned. The war has made it necessary to pass shipping regulations and amendments, often at short notice. The position seems to be clear that three legal difficulties then arise - (a.) The possibilityof repugnancy if the regulations apply to ships which are not registered in Australia;

the possibility of illegality, because where the regulations apply to ships registered in Australia there has been no reservation either of the regulations (which seems to be impossible) or of the statute under which they are made; and

if we insert a special clause that the regulations are subject to the Merchant Shipping Act, the regulations then necessarily have a narrow application and in war-time this is often undesirable.

With regard to the suggestion that a committeebe set up to consider the legal questions involved, I could only repeat to the committee the views in the monograph, with whichI concur. The fact of the existence of the doubts which have been raised as to the validity of various sections makes it the more urgent that the statute should be adopted.

Paragraph 94 of the monograph referred to reads -

I am authorized by the Solicitor-General to say that he is seriously concerned at the practical drafting and administrative difficulties which have arisen, especially during the war, and which are sufficiently referred to in this monograph. I am also authorized to say that, in his opinion, the adoption of sections 2 to (i of the Statute of Westminster would greatly facilitate the work of draftsmanship and remove most of the doubts and difficulties which have been elaborated.

Before briefly referring to the effect of adopting each of the five sections, I again emphasize that their adoption will not and cannot affect status. Their adoption is wholly a practical action to get rid of technical difficulties which nobody wants to preserve and which, as is well known, have been for many years a clog on the free exercise of the powers of this Parliament in relation to the internal affairs of the Commonwealth - a clog entirely inconsistent with all theory of selfgovernment. A majority of honorable senators will already have perused the monograph circulated by my colleague the Attorney-General and will have appreciated the effect which this restriction on our powers has in relation to certain legislation. In view of that it is not necessary to particularize as to specific acts or regulations but rather to invite honorable senators to appreciate the doubts cast on the validity of a particular class of our legislation as a whole; doubts which the adoption of sections 2 to 6 of the Statute of Westminster will either remove or enable this Parliament to remove. The effects of this class of legislation being even challenged, quite apart from being held invalid, can readily be appreciated. The worst and most apparent effect, particularly in time of war, would be the chaos that must exist in certain phases of our administration if the legislation were suddenly to cease to have any operation. In addition to this the Commonwealth must view with apprehension the many claims for damages which must inevitably follow the legislation being held to be invalid. As is well known, the Commonwealth has, in prosecuting the war, requisitioned a. great number of ships under certain national security regulations, and has interfered with the freedom of many others. If the regulations are valid the Commonwealth haslegal authority for so doing; if invalid the Commonwealth has unlawfully interfered with these ships and will be liable for extremely heavy damages.

A further example of possible actions for damages would arise from any exercise of the Commonwealth’s powers with respect to seamen and ships. Were the regulations purporting to confer these powers to prove invalid the Commonwealth would be liable for an unauthorized interference with personal liberty.

I now turn to the five sections of the statute proposed to be adopted. The first section of the Statute of Westminster which the bill proposes to adopt is section 2, which provides that the Colonial Laws Validity Act of1865 of the Imperial Parliament shall not apply to any law made by the Parliament of a dominion after the commencement of the Statute of Westminster, and then goes on to provide that no law of a dominion passed after the commencement of the statute shall be void by reason of repugnancy to any existing or future Imperial act, and that, moreover, the Parliament of a dominion may repeal or amend any such act insofar as it is part of the law of the dominion.The important section of the Colonial Laws Validity Act is section 2, which provides that where a colonial law is repugnant to the provisions of an Imperial act extending to the colony or any order or regulation made under any such Imperial act, the colonial law shall, to the extent of that repugnancy, be void. I ask honorable senators to note the date of the act - 1865. - long before the self-governing colonies had developed; when the colonies operated within a restricted field from which many phases of legislation were excluded. The Merchant Shipping Act deals with merchant shipping as a whole, excepting that in certain instances it allows colonial parliaments to legislate in limited fields and subject to conditions. For the purposes of that act Australia is still a “ colony “. The moment its Parliament goes beyond those limited fields or fails to comply with any of the prescribed conditions its legislation is repugnant to the Merchant Shipping Act, and the

Colonial Laws Validity Act immediately applies to declare that legislation, to the extent of the repugnancy, void and inoperative. Although there are certain other powers relating to local administration, the important powers which the Parliament of a British possession is permitted to exercise under the Merchant Shipping Act are those conferred by sections 735 and 736. Section 735 provides that, in relation to ships registered in a British possession, the legislature of that possession may, with an exception not here material, repeal any provisions of the Merchant Shipping Act insofar as they apply to those ships. The legislation cannot, however, take effect until the King’s pleasure thereon has been publicly signified in the dominion. Section 736- enables any British possession to legislate with respect to its own coasting trade, subject to certain limitations, one of which is that the legislation must contain a suspending clause that it will not come into operation until the King’s pleasure thereon has been signified. Taking the powers conferred by sections 735 and 736, it will be seen that, in the main, the power of this Parliament is to legislate for Australian registered ships and the coasting trade, subject to important exceptions. The moment we get outside those powers we are in a field to which the Merchant Shipping Act applies and immediately our legislation must face the challenge of repugnancy to the Merchant Shipping Act. If it be so repugnant, the Colonial Laws Validity Act applies to make it void. On the other hand, whilst we legislate for Australian registered ships and our coasting trade, that legislation must be reserved for the King’s assent. Otherwise it has no effect..

The grave doubts thus cast on our legislation relating to shipping must at once be apparent. Naturally, the Navigation Act contains many provisions relating to ships in Australian ports, and these provisions are not limited to Australian registered ships and. ships engaged in the coasting trade- indeed, many of them are expressed to extend to all ships. No one can deny that it isnot only reasonable, but, in war-time, also necessary that this Commonwealth Parliament should be empowered to legislate on many matters in respect of ships in its own ports. Nevertheless, it is clear from a decision of the High Court that most of these provisions might be held invalid at any time insofar as they purport to apply to any such ships. The High Court decision to which I refer - the Union Steamship case, 36 C.L.R. 130 - dealt mainly with the provisions of the Commonwealth Navigation Act relating to the engagement in our own Australian ports of seamen, including our own Australian seamen. There was nothing extraordinary about these provisions. They were the usual provisions which may be found in all navigation legislation, including the Imperial Shipping Act itself, to protect a seaman against exploitation. The main feature of these provisions is that a ship’s captain engaging seamen in an Australian port must do so by an agreement entered into in the presence of a superintendent, who will see that the seaman understands the terms of his engagement and is not exploited. When, however, a British .registered ship’s captain endeavoured to engage and discharge seamen in an Australian port in contravention of these provisions, the High Court held that, as the question of the engagement of seamen by ships registered in the United Kingdom is dealt with by the Merchant Shipping Act, the provisions of the Commonwealth act were repugnant to the Merchant Shipping Act and. therefore invalid by reason of the application of the Colonial Laws Validity Act. Those provisions for the engagement of Australian seamen in Australian ports by a United Kingdom registered ship having been held invalid on these grounds, the position must be faced that there can be very few provisions in our Navigation Act which are applicable to British and foreign ships which would not be held invalid on the same grounds. The same argument applies, not only to many of our regulations made under the National Security Act for the more efficient prosecution of this war, but to one of the sections of the National Security Act itself. Section 6 of the National Security Act provides that National Security Regulations shall, insofar as they impose prohibitions, restrictions or obligations in relation to ships, apply in relation to all ships in Australia. That is, the regulations shall apply, amongst others, to ships in Australia which are registered in the United Kingdom. This portion of the section, therefore, appeal’s to fall precisely within the reasons which prompted the High Court to hold invalid in their application to British registered ships the provisions of the Navigation Act relating to the engagement of seamen. Under the National Security Act, many regulations have been made for the control and regulation of all ships while in Australian ports. Each and every one of them is in danger of being held invalid for the same reasons.

The question of reserving legislation relating to Australian registered ships and ships engaged in the coasting trade is affected by the adoption of section 5 of the statute, but, while on the subject of the Merchant Shipping Act, it is convenient to refer to them here. No question of invalidity on this ground can arise concerning the provisions of our Navigation Act because all those provisions have been reserved for the King’s assent; but neither section 6 of the National Security Act nor any shipping regulations made under the National Security Act were reserved for the King’s assent. Therefore, it seems difficult to escape the conclusion that all these provisions are invalid insofar as they deal even with Australian registered ships and our ships engaged in the coasting trade. Included in the National Security Regulations of this nature are the National Security (Shipping Control) Regulations which may well be regarded as portion of the foundation on which the efforts of this Parliament to play its part in the successful prosecution of this wa,r has been built. ,

It is natural to stress particularly the Colonial Laws Validity Act in its relation to the Merchant Shipping Act, hut there are other acts of the Imperial Parliament which may import the provisions of the Colonial Laws Validity Act. Examples of these have been set out in the monograph, but I should like to emphasize the position which recently arose in connexion with the two Australian naval ratings sentenced to death by an Imperial court martial.

Because of the temporary transfer, for strategic reasons, of ships of the Royal Australian Navy to the Royal Navy, the provisions of Imperial legislation relating to discipline immediately applied to the ratings on those ships. At least to a certain extent this may he desirable, and, thus far, I offer no comment. But I offer comment when I recall that the effect of the application of the Imperial legislation was to import the Colonial Laws Validity Act so as to void the whole of our legislative safeguards insofar as it purported to apply to those ratings. Section 98 of our Defence Act provides that no death sentence shall be imposed by a court martial except for certain offences - of which the charge of murder is not one - and that no death sentence shall he carried into effect unless confirmed by the Governor-General. That provision has been applied to all arms of the Defence Force, but it was ruled that, by reason of the Colonial Laws Validity Act, the provision was invalid insofar as it purported to apply to our naval ratings. It was decided that the sentences should be commuted to life imprisonment, but it was clear that all the Governor-General’s powers under the Defence Act had temporarily disappeared, so far as these ratings were concerned. Therefore, action had to be taken in London, where the sentences were finally commuted. This caused troublesome delay while the men were under sentence of death.

From what I have said, I think it must be apparent to all honorable senators that the continued application of the Colonial Laws Validity Act is a dangerous obstruction to our powers of self-government, and that the removal of this danger has become urgent, and is becoming increasingly urgent every day. The sole purpose of the adoption of section 2 of the Statute of Westminster is to remove that danger.

Section 4 of the Statute of Westminster is so connected with section 2 that it is convenient to refer to it before dealing with section 3. Whereas section 2 enables the Commonwealth to avoid the dangerous effects of the continued application of certain Imperial legislation, section 4 of the statute provides that no future act of the United Kingdom shall extend or be deemed to extend to a dominion as part of the law of that dominion unless the act includes a clause stating that the Commonwealth has requestedand consented to that extension. Apart from the necessity for including the express clause, and a provision that, in the case of the Commonwealth, the request must come from both the Parliament and the Government, the section merely adopts the present constitutional position which has been declared in the preamble to the statute, which preamble already applies to the Commonwealth, and is not, therefore, affected by the adoption of sections 2 to 6.

Section 3 of the Statute of Westminster declares and enacts that the parliament of a dominion has full power to make laws having extra-territorial operation. For many years the accepted view was that whilst a sovereign power, such as that of the United Kingdom, might, if it so desired, give extra-territorial effect to its legislation, the parliament of a dominion could not. This view is not now so generally accepted and there are some judges who hold the view that so long as the laws of this Parliament are for the peace, order and good government of the Commonwealth this Parliament may, without having to adopt section 3 of the Statute of Westminster, give extra-territorial effect to those laws. Mr. Justice Evatt took this broad view of dominion legislative power. Whilst this view is widely held now, it has never been formally accepted by a court, and considerable uncertainty now exists as to whether a dominion parliament may or may not apply its laws, where necessary, outside the territorial limits of the Commonwealth. There can be no question whatsoever as to any alteration in Imperial relationship by the adoption of this section. It merely removes the doubt as to the possession of the power which, I think, every one will agree that every Parliament should possess. Because of doubt as to whether the Commonwealth could extend its legislation relating to the government and discipline of its own forces overseas, the Imperial Parliament had to be requested to enact legislation giving the Commonwealth legislation extra-territorial operation in this connexion. The official parliamentary memorandum accompanying the bill introduced into the Imperial Parliament contained the following sentence: -

In the first place (the bill) enables the military and air force law of the Dominion to apply to the Dominion forces outside the Dominion, which it would not otherwise do without the adoption of section 3 of the Statute of Westminster.

The serious position will be at once appreciated, namely, that it is uncertain whether this Parliament can directly legislate for those forces overseas. Our legislation extends to them only by virtue of provisions in Imperial legislation.

A brief glance at the Japanese lugger ease, which was decided by the Supreme Court of the Northern Territory not long before the war, furnishes a further example of the restrictions which the adoption of section 3 of the statute will remove. On that occasion an action, was brought against the Commonwealth for the improper seizure of a Japanese lugger. The seizure was authorized by section 19aa of the Aborigines Ordinance, on the ground that the lugger was trespassing in territorial waters. The actual decision was that the Commonwealth had not proved that the lugger was within 3 miles of the shore, but the greater part of the court’s time was concerned with the question as to what are territorial waters. That is a question of extreme legal difficulty where bays, gulfs, inlets and islands are concerned, and some criticism was levelled at the Commonwealth for not having defined the meaning of those words. But the truth is that, in the present uncertain state of the law, the Commonwealth cannot satisfactorily define the expression. We do not want to deem not to be territorial waters those bays and inlets which otherwise would be, and if we included those bays and inlets which would not otherwise be territorial waters, the legislation would, unless section 3 of the Statute of Westminster be adapted, be of doubtful validity. The courts would still have to determine the meaning of the expression, unassisted by the definition.

Sections 5 and fi of the Statute of Westminster respectively provide that sec tions ‘735 and 736 of the Merchant Shipping Act and section 4 and parts of section 7 of the Colonial Courts of Admiralty Act will no longer apply. I have already explained sections 735 and 73.6 of the Merchant Shipping Act, which require the Commonwealth to reserve for the King’s assent legislation relating to Australian registered ships and to ships engaged in the coasting trade. Section 4 and the portions of section 7 of the Colonial Courts of Admiralty Act referred to respectively require the reservation for the King’s assent to any bill declaring a court to bca colonial court of admiralty, and rule= of court affecting the practice and procedure of any court having this jurisdiction. From what has already been said. I think that it is apparent that the King would never withhold his assent to a reserved bill, except on the advice of his Australian Ministers. The only effects remaining from the continued application of these old provisions arc, first, the unnecessary and irksome delay experienced in bringing legislation of this type into force, and, secondly, the serious doubts that have been cast on the validity of certain legislation, notably regulations, where, for reasons of urgency, it is impossible to provide for reservation. Two recent examples of the delays occasioned are the Judiciary Bill of 1939 and the Navigation Bill of this year. The Judiciary Bill of 1939 was, in consequence of the commencement of the war, a measure urgently required to remove doubts as to the admiralty jurisdiction of the State Supreme Courts. So urgent was the measure that this Parliament had passed it through all stages within five days of the commencement of the war - owing to the necessity for reservation it did not come into operation until nearly three months later. All honorable senators will recollect the Navigation Bill which was passed by this Parliament on the 4th June last. That legislation was duly reserved for the King’s assent, and is not in force yet. Those, then, are the sections of the Statute of Westminster which the bill now before the Senate proposes to adopt. I trust that I have made it. clear that their adoption does not affect the status of this Commonwealth or its relationship to the British Common-wealth of Nations. The reasons for their adoption are dictated wholly by practical convenience and the necessity, particularly during war-time, to enable this Parliament to exercise its legislative powers free from the wholly unnecessary restrictions which the adoption of these sections will remove, and their adoption’ in no way affects the status of this Commonwealth or its relationship to the British Commonwealth of Nations.

The Attorney-General and the SolicitorGeneral are jointly responsible for securing the legal validity of Commonwealth regulations. It is their considered opinion that we need these provisions. As the Attorney-General recently stated publicly, “ The relation between Britain and Australia has never been closer or more intimate than it is to-day “, and that we can remove the restrictions and handicaps on our freedom “without detracting in the slightest degree from that special and indissoluble relationship with Britain which is based upon our common kinship and our common allegiance to His Majesty the King”. In submitting this bill to the Senate I express the hope that a division will not be called for on the motion for the second reading. It is designed to do no more than to remove certain out-of-date restrictions on the free exercise of our power in respect of internal matters.

Senator McLEAY:
Leader of the Opposition · South Australia

– I listened with a great deal of interest to the speech of the Minister in charge of the bill (‘Senator Ashley), and I am sure that all honorable senators appreciate the great difficulties associated with this measure. Considerable differences of opinion exist among legal luminaries in relation to it. It would appear from the Minister’s speech that the main purpose of the bill is to enable the AttorneyGeneral to validate certain regulations, particularly those to control shipping. The Minister pointed out the difficulties which the Government had experienced in this connexion. There was also a reference in his- speech to other important matters affecting ratings of the Royal Australian Navy and the control of overseas forces. Immediately difficulties arose in connexion with those matters the

Government got in touch with the British Government with the result that difficulties were overcome in a short time. It is cleaT that whatever obstacles have been encountered in the past have been successfully overcome. That may be the explanation of the refusal of the Dominion of New Zealand to adopt those sections of the Statute of Westminster which this Parliament is now being asked to adopt. I should like to know whether there has been any request by the Government of New Zealand- to the British Government along the lines indicated by the Attorney-General (Dr. Evatt). Although members on both sides of the chamber are divided in their opinions in regard to this bill, there is almost complete unanimity among all parties that the present is a most inopportune time to bring this measure before the Commonwealth Parliament. At various times there have been differences of opinion, even in this Parliament, as to the attitude which Australia should adopt should Britain become involved in war. It is common knowledge, not only in Australia but also in Great Britain, that the Australian Labour party is opposed to conscription for service overseas. Even during this war that party has opposed the sending of troops outside Australia. These are things which cause division in Australia at a time when we should all be working for unity. Honorable senators know the history of the conference which was held in 1926, and that the decisions then arrived at in regard to the status of the Dominions were the result of an attempt to appease the representatives of Eire and Mr. Hertzog, of South Africa. The British Prime Minister at that time and his colleagues thought it advisable to do all in their power to appease such people, but, as the right honorable member for North Sydney (Mr. Hughes) said (recently, it was an attempt to appease the unappeasable. I shall not deal at length with the attitude of those two countries, but it is well known that Mr. Hertzog tried to use the power which South Africa possessed under the Statute of Westminster to prevent that dominion from participating in this war. However, the action of the Prime Minister of South Africa, Field Marshal Smuts, which had the backing of the people, has enabled that dominion to render valuable service in the fight for freedom. “Without any desire to do an injustice to any one, I say that the attitude of Eire in this conflict is most regrettable. With the example of Eire before me, I cannot say that I am elated at the prospect of the bill before us becoming law. (Senator Keane. - There are 180,000 Irishmen from Eire fighting with the Allied Nations.

Senator McLEAY:

– I appreciate that fact, but I regret that the Parliament of Eire and Mr. De Valera, while refusing to allow- Great Britain to use bases in that country, have permitted countries with which the British Empire is at war to have diplomatic representation in Eire. In saying that, I have no desire to reflect on the Government of Eire; but I point out that the policy adopted by that country has resulted in the loss of many Australian, British and American lives. I regret that in 1926 the British Government was persuaded to pass the Statute of Westminster, because ever since then there has been misunderstanding and difficulty.

In his preliminary comments, the Minister said that the bill before the Senate does not in any way affect the constitutional status of Australia. He told us that that matter was settled in 1926. The refusal of New Zealand and Newfoundland to ratify the Statute of Westminster is an important factor which must be taken into consideration in discussing the bill now before the Senate. Many prominent Australians have declared that it is useless to oppose this measure because “ the pass has been sold “ ; the principles embodied in the bill have already been agreed to in the Balfour declaration, and the Statute- of Westminster. Why was it stipulated in section 10 of the statute that certain sections of the statute shall not apply to Australia, New Zealand or Newfoundland unless those, particular sections be adopted by those dominions? Section 10 of the statute reads -

  1. None of the following sections of this Act, that is to say, sections two, three, four, five and six, shall extend to a Dominion to which this section applies as part of the law of that Dominion unless that section is adopted by the Parliament of the Dominion . . .

That provision is vital to the issue which we are now considering, because we now propose to adopt those sections of the statute. Further, lawyers and judges are at variance as to the necessity for, and the effect of, the passage of this measure. I am not satisfied with the statement that it is now useless to oppose this bill because “ the pass has been sold “, and our status and powers have in any case been defined.

I shall now deal with the cry which bas been voiced from time to time, particularly by representatives of the Labour party, that we want to be free and independent, and that the time has arrived when we want Australia for Australians. That cry has been raised in season and out of season by prominent members of the Labour party. It is the duty of the Government and the Opposition in this Parliament to give a lead to the people on this important matter. On many occasions, we have been treated to such gibes as “Empire flag-waving”. For instance, one member of the House of Representatives, during the debate on this measure, declared that the honorable member for Hume (Mr. Collins) should go to bed wrapped up in the Union Jack. In view of the fact that we are now at war, and realizing what Great Britain has done for us, and what the Union Jack stands for, statements of that kind are to be deplored. We should realize our debt to Great Britain, and how important it is that we do all in our power to maintain the unity of the Empire. That unity is real. I shall briefly mention three aspects of it. First, we have the crimson thread of kinship, which means something to me at least. Secondly, the very existence of Australia has depended upon the protection of the British fleet. Thirdly, we appreciate what Great Britain has done to help Australia economically. Ninety per cent, of our exports are sold in the British markets, where we enjoy many great privileges. Consequently, we have every reason to be proud of our loyalty to the Empire; and we should urge the people to continue that attitude. Whether w-e look at the past, present or future, the conclusion is forced upon us that with a population of only 7.000,000 we cannot hope to defend Australia without the help of Great Britain. Loyalty to the Empire is not sickly sentiment; it is a radiant reality. Therefore, to say the least, it is a great pity that a measure of this kind should be introduced into this Parliament when we are at war. I have already referred to New Zealand’s attitude towards the Statute of Westminster. That country has made a marvellous contribution to the Empire’s war effort. I wish that Australia had done as much. New Zealand does not find itself embarrassed by any of the restrictions which, it is claimed, this measure is designed to remove. Should we pass this measure, New Zealand will stand alone in its present attitude upon these matters. I direct the attention of honorable senators particularly to sections 2 and 4 of the Statute of Westminster. Section 2 reads -

  1. The Colonial Laws Validity Act,1865. shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. (2)No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation, insofar as the same is part of the law of the Dominion.

The passing of this measure will restrict the powers of Great Britain and, at, the same time, increase those of Australia. Section 4 of the statute reads -

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that. Dominion has requested, and. consented to. the enactment thereof.

Senator Courtice:

– What is wrong with that?

Senator McLEAY:

– I contend that those two sections finally and legally cut the painter between Australia and the United Kingdom. I cannot read anything else into section 4. If it is in the preamble, as I am told it is, why did the three dominions refuse to have it applied to them until Parliament passed it? Why is it necessary for Parliament to pass it if it is in the preamble, and if, by virtue of that fact, it becomes the law? I am at a loss to understand it. I have had the opportunity of reading an article by Sir Owen Dixon, submitted at a legal convention in October, 1936, reviewing the Statute of Westminster of 1931. He dealt with the legal principles upon which the Imperial system rested when the Statute of Westminster was enacted. I propose to make brief quotations from the article, in order to give some background to the far-reaching effects of the resolution of” 1926, and of the final action that we in this Parliament are now asked to take. Sir Owen said -

It was the accepted doctrine of our system that the King in Parliament had absolute authority over the law and that all places acquired by the Crown in right of the Crown’s British sovereignty must be subject to that authority.

Ina newly acquired territory a form of government might be established either by statute made under this legislative authority or by an exercise of the prerogative of the Crown. In either case, the supremacy of the Parliament at Westminster remained. The new legislature was subordinate. If any of its laws came into conflict with a statute of the British Parliament operating in the dependency, that statute prevailed and the local law could have no effect.

No doubt British territory may be ceded or otherwise put from under the jurisdiction of the Crown. But, while it remains under the Crown, it must, according to the theory which has hitherto obtained, be subject to the power of the Imperial Parliament. In other words, allegiance to the British Crown carried with it subjection to the ultimate legislative authority of the King in Parliament.

It. is true that the Colonial Laws Validity Act,1865. had expressed in statutory form the principle that any colonial law repugnant to any net of the British Parliament extending to the colony, or to any order or regulation made under such an act. should to the extent of the repugnancy, be void.

But the British Parliament so sparingly exercised its residual authority that, in practice, the restraint thus stated was seldom encountered in the Dominions.

Then, referring to those principles, he quoted the opinion of Mr. McGilligan as follows : -

The principles were clear and certain and the system achieved its purpose. Its merits were recognized by Mr.McGilligan. who led theIrish delegation to the conference of 1929, where the provisions of the Statute of West- minster were framed. When recommending the adoption by Dail Eireann of the report of the conference, he said that the report contained: “The last chapter in the history of one of the most highly organized and effective legal systems of which there is any record.”

He proceeded to say: ‘‘The system which it took centuries to build up has been brought to an end by four years of assiduous and concentrated collaboration between the lawyers and the statesmen of the States (i.e., Dominions) of the (British) Commonwealth.”

We should take notice when so eminent an authority emphasizes the importance and far-reaching effect of this legislation. I wish to ask the Minister a question regarding State rights. Section 9 of the schedule provides that -

Nothing in this act should be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia.

The Senate is entitled to information from the Attorney-General, andthe lesser authorities who have been assisting him, regarding the practical bearing of this legislation on the citizens of Australia, because it may be of farreaching importance to them. Will the Minister state, either in his reply to the second reading debate or in committee, what the position is with regard to the right of appeal to the Privy Council, and how far it will or can be affected if the bill becomes law? It is the opinion of Mr. David Maughan, K.C., that, of all the dominions, Australia is the only one in which the residue of legislative power is not vested in its Parliament. In the case of Australia, the abandonment by the Imperial Parliament of the power to legislate for the Commonwealth of Australia on subjects within the competence of the Parliament of the Commonwealth would leave intact the power of the Imperial Parliament to legislate for the citizens of Australia upon those subjects within the exclusive authority of the State parliaments. We seem to have arrived at the result that the Imperial Parliament would have no power to pass laws affecting us as citizens of the Commonwealth of Australia without the request of the Parliament of the Commonwealth,, but that the Imperial Parliament wouldtill retain the fullest power to legislate for us as citizens of a

State on those subjects which are exclusively within the legislative powers of the States. On this subject Mr. Maughan adds -

When the Imperial Parliament provided that no act should extend to a dominion unless it is expressly declared in the act that that dominion had requested and consented to the enactment thereof, did not intend to give the authorities of a dominion a right to request legislation on subjects outside the legislative competence of that dominion, and in particular did it intend to give the authorities of the Australian Commonwealth a right to request legislation on those subjects within the exclusive competence of the States?

Also, if the Commonwealth authorities did forward such a request would the Imperial authorities grant the request or refuse it. or refer it to the governments of the different States in order to ascertain their wishes with regard to the proposed legislation: and if any State opposed the proposed legislation would that be a sufficient ground to justify the Imperial authorities in refusing to proceed in accordance with the request of the Common wealth authorities ?

When the Minister has the opportunity to reply. I shall be glad to hear the opinion of the Attorney-General regarding the position of the States, as well as the right of appeal to the Privy Council. Reading through various historical documents relating to this highly complicated matter, it is interesting to note that in1938 the right honorable member for Kooyong (Mr. Menzies), then Attorney-General, said -

I think that, to say the least of it, it was a highly dangerous experiment to endeavour to reduce the written formula, and, therefore, to rigid legal terms, a relationship some of the supreme value of which has been its very vagueness and elasticity.

That, of course, refers mainly to the original resolution passed in 1926.

When he was Prime Minister in 1930, the right honorable member for Yarra (Mr. Scullin) said-

To my mind, there is nothing to be gained and a great deal to be lost by attempting to crystallize our relations too closely within the confines of any document.

In conclusion, I contend that the decision in 1926 was bad. I regret the consequences in certain directions, but I submit that the decision in 1942 is still bad. I shall oppose the bill.

Senator DARCEY:

. -I do not. believe that there will be any immediate detrimental results to Australia should this measure be adopted, but I am of the opinion that history will prove that the Statute of Westminster was one of the worst pieces of legislation ever introduced by the Balfour Government in Great Britain. I cannot lose sight of the fact that it was the Balfour Administration which was responsible for the disarmament of Great Britain. I happened to be a member of the League of. Nations Union at that time, and I knew what was going on. The Balfour Government went to the country on budget proposals which provided for drastic reductions of Navy, Army and Air Force expenditure. Lord Balfour’s party won the election, but in what shape did he leave the nation1? From that time onwards Britain was in a state of dangerous unpreparedness. Lord Balfour knew quite well that Britain’s enemies were arming to the teeth, but he sacrificed the people of Britain in order to win an election.

There is a great deal more in this measure than appears on the surface. Every one is looking forward to the establishment of a new order after the war. I have before me the “ Four Freedoms “ of the Atlantic Charter - freedom of speech, freedom of worship, freedom from want and freedom from fear. The greatest fear of mankind is fear of economic insecurity, and under the present financial system that fear will never be removed. It is widely believed that the fundamental principles of this proposed new order were first brought into prominence by the Atlantic Charter, but that is not so. Mr. ‘C. Kirshman Streit, author of Federal Union, was the first to suggest the four principles of freedom. By signing the Atlantic Charter, Great Britain has undertaken to return to the gold standard, and what country holds the greatest proportion of the world’s gold ? The United States of America, of course, and when the gold standard is again in operation, the United States of America will hold the balance of power. The Atlantic Charter will go a long way towards depriving Great Britain and the British Empire of their sovereignty. Already Britain has lost many of its sovereign rights, mainly through the establishment of the Bank of International Settlements. When that bank was established it was intended to settle balances owing between countries in gold, but after the last war it was found that there was not sufficient gold in the world to meet the commitments of all nations, and since then many of the debts have been funded. There are two or three political groups in America which are not friendly towards Great Britain. For instance, there is the Isolationist group. Because of the efforts of these people it was not until the attack on Pearl Harbour that Britain was able to obtain any real aid from the United States of America. A friend of mine was in Vancouver at the time and he heard anti-British views expressed by isolationists such as Senator Nye and Colonel Lindbergh. On page 13 of Truth of the 4th October, 1942, there appears an article by Miss Dorothy Thompson, which shows that there are two groups in America, both of which constitute a grave danger to the successful prosecution of the war and are, therefore, a cause of uneasiness to our American ally. There is an imperial group, which is anxious to substitute American imperialism for British imperialism and a group engaged in propaganda aimed at “lowering the prestige and destroying the solidarity of the British Commonwealth. Both are anti-British. One would destroy the British ‘Commonwealth and the other would take over the assets and endeavour to make the United States of America the focus of an international agreement, ultimately leading to a totalitarian world state as expounded in Streit’s book Federal Union. I read that book and contributed £5 towards the preparation of an answer. It was answered very effectively, exposing all the rottenness which it contained. In the world to-day there are no governments which fully represent the world people. There is an unseen power behind all governments, and that is the Bank of International Settlements. I repeat that this measure may -be passed without causing immediate detrimental results to this country, and I shall not oppose it, but I shall endeavour to show what the effect of this statute will be if those advocates of “ Federal Union “ get their way. Their ideas are represented in the

Atlantic Charter, which ha3 been agreed to by Great Britain and the United States of America.

Senator Keane:

– The honorable senator knows well that the only hope of a new order lies in the United States of America and Great Britain.

Senator DARCEY:

– That would be so if both those countries had real power over their people or truly represented their people, but they do not truly represent their people any more than this Parliament represents the people of Australia. I have given a good deal of thought to this matter, and I can see a lot of danger in it. I am very doubtful about the prospects of a new order. Although I shall support the bill, I am in doubt as to its ultimate result.

Senator SAMPSON:

– In the fatal Balfour declaration, an effort was made to express in words the status of the components of the British Empire, as we knew it then; but it is always dangerous to define things of the spirit. The dangerous nature of the declaration, which was afterwards incorporated in the Statute of Westminster, was brought home to me when I was a member of the Australian delegation to the gathering in 1928’ of the Empire Parliamentary Association in Canada, where we were the guests of the Government of Canada for about nine weeks. We travelled from east to west and from west to east through that great dominion. The delegation was composed of twenty representatives of the British Government, six from the Irish Free State, eight from tho Union of South Africa, six from New Zealand, five from India, two from Malta, two from Newfoundland, and eight from Australia. We assembled in London early in August, 1928, and travelled across the Atlantic together to Quebec. Naturally, the Balfour declaration was frequently a topic of conversation, and many of the delegates welcomed it. Some of the South Africans, all of the Irish delegates except two from Northern Ireland, and the Hindus, regarded it with great satisfaction, because they said it would enable the Dominions to go at their own legislative gait, independently of the Mother

Country. A resolution asking the British Parliament to pass the Statute of Westminster was submitted to this chamber in 1931, when it was agreed to by 19 votes to 8. I opposed that resolution, and I am opposed to this measure.

The Attorney-General (Dr. Evatt), in moving the second reading of this bill in the House of Representatives, stated that its passage would remove certain restrictions which had caused doubts, difficulties, and anomalies, especially since the outbreak of the war. He cited the effect on Commonwealth laws of Imperial enactments, such as the Colonial Laws Validity Act, the Merchant Shipping Act, and the Colonial Courts of Admiralty Act. I shall not go into the legal aspect of the bill, because the law is beyond my comprehension. All that I can do is to endeavour to make two and two total four, although some of my legal friends may. sometimes seek to show that the total is five. If the difficulties he half as great as has been claimed, it would appear that this measure has been introduced at a most unfortunate time. The leader of the Empire Parliamentary Delegation to Canada was Lord Peel, and at the various cities and towns visited the practice was to select two speakers from two different parts of the Empire. An Irish-1 man and a New Zealander might be selected to speak at one city, and, say, an Australian and a South African at another. It was s-aid that that which held the components of the Empire together in our so-called British Commonwealth of Nations was the Crown. But the constitution of the Irish Free State contains no reference to the Crown. The fatal Balfour declaration, as embodied in the Statute of Westminster, has driven deep fissures into the Empire structure. Eire to-day calls itself neutral, and it is neutral. Secure behind the might of the British navy, it entertains a German minister, who conducts the Nazi spy system of Germany in Great Britain. He is there, safe and secure, with a large staff. It would be better if the Irish Free State were actively engaged in this war on the side of Hitler, because ‘it would then not do so much harm as it is now doing to the cause of the British Commonwealth of Nations, of which it was formerly a partner. Airmen fighting our battles, who are forced down in that country, are interned. Not many months ago, I had a letter from a member of the Royal Air Force, who is now interned in Eire. The Balfour declaration of 1926, like many of Lord Balfour’s efforts, was one of appeasement. He was one of the leading figures in the limitation of armaments arranged under the “Washington Treaty of 1923. He was a leading figure in connexion with declarations and resolutions of appeasement between the Jews and the Arabs in Palestine. It is impossible to placate the implacable, or, as one memberof the House of Representatives said recently, it is impossible to appease the unappeasable. I saw that fact clearly when I toured Canada in 1928 as a member of the Empire Parliamentary Delegation. I saw then that there were governments which could not be appeased or placated. Among the members of the delegation were a considerable number who did not recognize the King, or the fact that the Crown held us together. They would sooner be frozen stiff than open their mouths when the National Anthem was sung. This legislation may be necessary, but the present is a most inopportune time to introduce it. It is certain that the Nazi propaganda machine will make venomous and mischievous use of the passing of this act at this time. The Statuteof Westminster, far from binding the Empire together, was an act of renunciation on the part of Britain. It was like the action of an old man who calls his family together and says, “I am old. You are all of age and can decide for yourselves. I have done the best I could for you. I believe that you will think of me in my declining years “. But two sons had no time for the old man. That is why there are in South Africa three fairly strong political parties, members of which do not want a king and have no desire to be part of the British Commonwealth of Nations. In the early days of the present war the Hertzog Govern ment of South Africa attempted to avail itself of the powers conferred by the Statute of Westminster to keep South Africa out of the war. I thank God that that country, in which I lived for many years, turned that government out of office and put another in its place. By a narrow margin of eleven votes the Parliament of South Africa decided to accept its share of the burden associated with the struggle for survival, and refused to remain neutral. The King of Australia is at war, but the King of Eire is at peace! That is a preposterous state of affairs. There are some people who talk about granting dominion status to India, but, in my opinion, India has a long way to go before it will be fit to have that status conferred on it. On the delegation to which I have referred, were a number of Indian representatives, but because the Hindus had a majority in Congress, all the delegates were Hindus. There were no Mohammedans or members of any of the fighting races on the delegation. If the British Army withdrew from India, all the supporters of Gandhi and Nehru and all the people of southern India would be wiped out, almost overnight, by the fighting men of the north. Yet some people talk about giving dominion status to India ! India would have gone the way of Indo-China had Gandhi and Nehru and their followers had their way, and John Bull’s army had been withdrawn. The Statute of Westminster sets out clearly what our dominion status is. Each dominion is free and untrammelled to do whatever it likes. At the conclusion of the tour of Canada to which I have referred, a great compliment was paid to the Australian and New Zealand delegates. It was not likely that 52 men, from different countries and holding different opinions, would not at times have strong differences of opinion, but Lord Peel, Lord Thomson and others said, “ There is this about you Australians and New Zealanders - we never had any doubt about you. We always know where you stand “. They knew that we were with Britain come what may. That is still true to-day. But there are some who are not with us. Unfortunately, one member of the family is rendering great disservice to the other members of the family by remaining neutral in this struggle. I am opposed to the adoption of the Statute of Westminster, but I shall not attempt to discuss its legal aspects because I am not competent to do so.

My reason for opposing this proposal is exactly the same as it was in 1931. Today, however, my objection is stronger because, although the legal luminaries may say that the passage of the bill is necessary, it has been introduced at a most, unfortunate time. I oppose the bill.

Western Australia

– This is one of the best organized bills which has been placed before the Senate for some considerable time. We have been inundated with literature concerning it, including a monograph by the Attorney-General (Dr. Evatt), and we have received requests from constitutional associations, and such bodies as the Australian Natives Association, all urging its adoption. There are also many who are diametrically opposed to the measure. Obviously, a vast amount of money has been expended in order to ensure that the measure shall be passed at the earliest possible moment. Every precaution has been taken by the Government in order to ensure that the bill shall go through willy-nilly. Therefore, any suggestion that the opposition aroused by this measure is surprising is complete humbug. The bill has been thoroughly canvassed. I do not know of any other measure which has received the same degree of organized attention by so many different bodies throughout the Commonwealth. The bill is essentially a lawyer’s bill, but there are greater issues here than legal quibbles. Actually, this proposal had its genesis in . the Imperial Conference which the late Mr. Alfred Deakin attended in London in 1907. Subsequently, other legal gentlemen, more or less renowned, mostly less, made attempts to enact this legislation. I challenge the statement made by the Postmaster-General (Senator Ashley) in his second-reading speech that similar measures brought down by previous non-Labour governments would have been passed had not general elections intervened. No ground whatever exists for that statement. I was a member of the Lyons Government., and I distinctly remember that that Government refused to go on with its bill for the adoption of the Statute of Westminster, although that measure had reached the second-reading stage. It was not required then, and it is not required now. This Commonwealth has operated under the Imperial act for 42 years. Yet, during the greatest holocaust in the history of the human race this measure is introduced, and we are asked to push it through in the dying hours of a session. I commend the Leader of the Opposition (Senator McLeay) for opposing the motion of the Leader of the Senate (Senator Collings for the suspension of the Standing and Sessional Orders in order to enable the bill to be rushed through. It is a disgrace to our parliamentary system of government that after 42 years this measure should be brought forward as one of great urgency. I listened to the debate on this measure in the House of Representatives. A refusal was given by the AttorneyGeneral to the Opposition’s request that the measure be referred to a committee. The appointment of a committee was proposed in order to enable honorable members to ascertain whether real urgency existed for the passage of the measure. In the refusal to allow such an examination of these proposals by an allparty committee I can only conclude that such urgency does not exist. The Attorney-General’s refusal to agree to the appointment of such a committee reveals his insincerity in that respect. The bill is not merely a legal formula of certain sections of the Statute of Westminster. I see in the Statute of Westminster an axe ‘ which is being applied at the root of the Empire tree. Any one who wields that axe is contributing just as much as Hertzog, and the others referred to by Senator Sampson, to the destruction of that tree. The representatives of the Dominions who attended the Imperial Conference held in 1907 - and I have the greatest respect for them - never dreamed for one moment that the British people would ever be afflicted by the treachery which is prevalent to-day in Fascist circles in certain parts of southern Ireland. They did not dream for one moment that the undermining forces now at work to bring the British Empire to its knees would ever exist to the extent they do. Even Lord Balfour, who, according to all records, was a very gentle man, never thought for a moment that there would ever exist in proximity to the sea routes of the

Mother Country the disrupting Nazi enemy spies who now operate in certain parts of southern Ireland, and to such a degree that the fair city of Dublin is now known as the market place for the traffic in information useful to the enemy. That information is helping our Nazi enemy to destroy Australian, British and American soldiers. Those men never dreamed that such things could happen ; but they have happened. They would have happened in South Africa had not the people of that country very wisely substituted their present Prime Minister for his predecessor. Just imagine what would have happened to our sea lanes of commerce leading from Australia to Great Britain had a festering sore existed at the Cape of Good Hope similar to that which exists in southern Ireland. Had such been the case we should have had only the route via the United States of America open to us. Had the early statesmen of the Commonwealth ever thought that such things could happen, they would have taken steps to ensure that the Balfour declaration would never have been made.

Senator KEANE:

– The honorable senator’s own party brought down two measures similar to this.


– I have already dealt with that matter. I am not responsible for what happened in this Parliament prior to my election to this chamber in 1935 ; but had I been a member of the Senate when those bills were brought down, I should have expressed the same sentiments which I have just expressed. At the Imperial Conference of 1926 some very interesting comments were made. I propose to deal with a few of them. The official record of the proceedings at that conference is available in the Parliamentary Library. Any one who suggests that the Empire is anything but a close fellowship of personal contacts fails to understand the position. Reference has been made to the position in South Africa; but one of the first matters to be adjusted at that conference was the title of His Majesty the King. That subject was raised because of the change of status of the Irish Free State. The status of that country has again been changed since that date; but in the attitude of that country we see the germs of disruption which were sown in the early stages of that conference. The representative of the Irish Free State was the President of its Executive Council, Mr. Cosgrave. His words are very important, even at this late stage, and worthy of repetition. At page 26 of the official report of the conference, he is reported to have said -

During the three years covered by your remarkably lucid review-

He was referring to the review given by the Prime Minister of Britain, Mr. Baldwin, as he then was - our relations have been marked by sympathetic understanding and close co-operation. The written word as a vehicle of thought, as a medium of consultation, is but a tardy and unsatisfactory substitute for personal discussion and personal contact. Hence, we welcome these recurring opportunities for members of governments having so many interests in common to come together and consider how those interests may best be furthered, to see how any potential interference with the unmarred concord which exists between us may most surely be avoided, to reinforce the sympathetic bonds uniting us and to take all steps that may be advantageous to our future cooperation in the interests of peace and progress.

That was one of the phases of the conference which was the genesis of the Statute of “Westminster. The British Government, as a generous reciprocal gesture to men like Mr. Cosgrave, hoping by such an instrument to hold the Irish Free State as a component of the British Empire, created the statute, but, unfortunately, Mr. Cosgrave was succeeded by men of imported blood, who did not see eye to eye with him, and led the then Irish Free State into the doubtful and neutral paths that it is following to-day. In the case of South Africa also, the whole tone of the conference was one of conciliation and appeasement, but, unfortunately, those generous gestures by the British Government were futile. Mr. Hertzog, referring to the speech of the Prime Minister of the United Kingdom, said -

Whether at present all the conditions are there to ensure the permanency of that will and therefore of the Empire is a question which I think we should inquire into at this conference. Speaking merely for South Africa, I think they are not. South Africa is anxious to possess that will equally with every other member of the Commonwealth, but that will can be assured for the future only if she can be made to feel implicit faith in her full and free nationhood upon the basis of equality with every other member of the Commonwealth. That implicit faith she does not possess to-day, but she will possess it the moment her independent national status has ceased to be a matter in dispute and has become internationally recognized.

I think that the man who expressed those lofty thoughts was speaking to the conference with tongue in cheek, as subsequent events have proved to be the case. Some weeks ago Senator Lamp referred in this chamber to the position of India. At the conference, a report of which I am quoting, the Maharajah of Burdwan, one of the delegates from that country, said, as reported on page 28 -

As you, sir, have indicated, India is a country including many races and peoples. It comprises many religions and a variety of cultures in the setting of an ancient civilization, which in consequence makes it difficult for her people to understand always the problems that confront the West and are not infrequently not in harmony with their mentality or their traditions. I would add that the Indian Empire which we with the Secretary of State represent here to-day, includes both British India and also the Indian States which cover about one-third of its territory and contain nearly one-fourth of its vast population of 325,000,000.

India is proud of her place in the British Empire and there can be no question that the real India’s ambition is to remain in it. I should say that if there is one feeling more than another which unites all these varying elements I have mentioned - all the different peoplesand classes in India - it is the desire to maintain and to strengthen the bonds of sentimentand loyalty which bind together the several units of the British Commonwealth.

That was the atmosphere in which the Statute of Westminster was born.

Senator Keane:

– And it has not changed from that day to this, except in very slight details. South Africa is as loyal as we are.


-I dispute these statements with all the force that I can muster. It has been demonstrated that, had it not been for the wise leadership of Field Marshal Smuts, we should have been in a very precarious position indeed as regards events in South Africa. Much has been said amongst lawyers, especially in the House of Representatives, on the question of repugnancy. As an ordinary layman, I contend that there can be no repugnancy whatever in a free and unfettered partnership such as exists between the various nations of the British Empire. In any legislative measure passed by a dominion parliament, the question of repugnancy cannot occur. We legislate for our own good, for the protection of our people, for the advancement of Australia within Australiaand its territories, and we are an independent people. Therefore none of our legislation can be repugnant to the Government of the United Kingdom. There may be legal quibbles about repugnancy, but there is no real or practical barrierto the passing of any measure whatsoever in any of the Dominion Houses with regard to the safety, well-being, or future progress of that dominion. We may pass measures which, under the old Colonial Laws Validity Act, require His Majesty’s personal signature, but that signature has never yet been withheld, because it is affixed by the advice of the dominion which passes the legislation. There need be no delay whatever in obtaining the Royal assent, because to-day we have cables, radio and other means of communication, many of which did not exist when the Commonwealth was established in 1901. Therefore, the plea of urgency falls to the ground, compared with the condition of affairs that existed in 1907, when the late Mr. Deakin referred to the affairs of the Dominions and the Motherland as being “ jostled together “. Our communications have so improved since then that there need be no delay whatever in giving the Royal assent to any measure passed by the Commonwealth ‘Parliament or the parliament of a dominion. In submitting this measure to Parliament at this stage, the Government has made out an extremely poor case both as regards repugnancy and extreme urgency. I maintain that in the passing of an Imperial act by the British House of Commons, there is no such thing as repugnancy in the relationship of the various dominions. Great Britain learned its lesson during the War of American Independence, and that lesson has not been forgotten. The greatest possible care is exercised to see that no measure passed by the House of Commons will be repugnant to any of the dominion governments. In other words, there is complete harmony between the Dominions and the Old Country. Any suggestion to the contrary merely reveals ignorance of the facts. In the summary of proceedings, of the 19’26 conference, which specifically mentions many of the items contained in this bill, the following statement also appears : -

On this point we propose that it should be placed on record that, apart from provisions embodied in constitutions or in specific statutes expressly providing for reservation, it is recognized that it is the right of the Government of each Dominion to advise the Crown in all matters relating to ite own affairs. Consequently, it would not he in accordance with constitutional practice for advice to be tendered to His Majesty by His Majesty’s Government in Great Britain in any matter appertaining to the affairs of a dominion against the views of the Government of that dominion.

There we have our own charter, which has given written recognition to the relationship - if such were ever necessary - between Great Britain and the Dominions. There is no need for us to turn to the “ Four Freedoms “ of the so-called Atlantic Charter. British legislators learned their lesson in the days of the “Boston Tea Party”, and they guided carefully the destinies of the Empire right down the years until 1936, when a definite formula was arrived at. That action would not have been necessary had it not been for the circumstances surrounding the holding of the conference in 1926, when, unfortunately, good intentions, as is often the case, were misconstrued as weaknesses. Hence we are now faced with a position that every step taken to augment the conditions of the Balfour Declaration is a blow of the axe at the root of the Empire tree.

There is another phase of this measure which is repugnant to me as a “Western Australian, namely, the constitutional aspect, viewed from the position of the States upon the formation of the Commonwealth of Australia by a British statute. I have here a telegram from Mr. J. R. L. Brinkley, a Western Australian who has given considerable time and thought to this question. He is opposed to any action being taken to ratify the Statute of Westminster. The telegram reads -

Adoption Statute Westminster would mean the alteration by addition to Constitution since agreed at and as condition of union refer with few exceptions alterations by electors. Statute should be referred to them. Moreover States agreed unite if under the Crown of United

Kingdom (as in preamble) united in sovereignty to United Kingdom (second covering clause). Jurisdiction Imperial Parliament admitted joint Select Committee on the secession petition (not under sections two and four) statute or for that matter any of them therefore adoption statute ought be referred to the people not merely the general provisions but this special amendment. Whether you favour or against adoption please fairness read this telegram in Sena.te.

Mir. Brinkley is an authority on matters appertaining to the Statute of West-minster, and there is much to be said for his statement, especially in relation to the proceedings which I have quoted from the 1926 conference in which it was laid down that the various dominion parliaments had certain reservations or conditions for the extension of their own constitution. Mr. Brinkley contends that this measure involves an addition to the powers vested in the Commonwealth by the Imperial Commonwealth of Australia Act. Provision to extend the powers of the Commonwealth is inherent in our Constitution, which also sets out the method by which those additional powers may be obtained. Mr. Brinkley’s argument clearly states that this matter should properly be referred to the people of Australia for a decision.

Those are my objections to this measure in brief. I am sorry that it has been introduced so late in the session, when it is impossible for us to devote adequate time and thought, to it. Apparently the Government does not realize that many thousand? of people throughout the Commonwealth entertain grave doubts in regard to the ultimate aim of the measure. There are hundreds of thousands of good loyal Britishers in this country who do not understand this bill. We have done without it for 42 years, and. I see no reason why another month or two would have made any great difference. The request that the measure be referred to an all-party committee for consideration was reasonable, and 1 submit that it should have been granted. At this late hour I make another appeal to the Government to consider the matter from that aspect. An important measure of this kind should not be rushed through The Senate. Every opportunity should be given to us, as representatives of the people, to see that every care is taken to safeguard the unity of the Empire.

Senator FOLL (Queensland) [5.30 1. - I support the bill, and I regret that the tone of the speeches of some members of the Opposition suggests that some of the supporters of the bill are not so alive to their responsibilities to the Empire as are those who oppose it. I consider that the maintenance of the Empire does not depend on a bill of this kind. When a motion embodying a similar proposal was submitted to the Senate in 1931, nineteen senators voted in favour of it and eight against it. I recall that among those who were in favour of the proposal were some of the greatest men Australia has produced. Owing to the difficulties that have arisen in connexion with the war, the passage of this bill has become a more urgent, matter than it would otherwise have been. Those members of the Senate who voted for the proposal on a former occasion had given as much study to Empire matters as have many honorable senators who have spoken today. One senator who voted for the proposal was -Sir William Glasgow, who now occupies the position of High Commissioner for Australia in Canada. Has Australia ever produced a greater Imperialist than he? Sir Harry Lawson, a former Premier of Victoria, and an ex-member of this Senate, who is held in as high esteem as any present member of this Parliament, supported the motion for the adoption of the Statute of Westminster. Ex-Senator Thompson and Senator Cooper, both of whom served with distinction in the last war, also supported the motion. I do not doubt the sincerity of purpose of any honorable senator who considers it his duty to oppose this bill, but the matter is too insignificant to justify the suggestion that to pass the measure would weaken the tics that bind the Empire together.

The main object of the bill is to remove certain difficulties that have arisen owing to the provisions of a British act which was passed about 80 years ago. 1 was born in England, and attended school there. My father and mother were living there until they died. My brother and sisters, and all members of my family, still reside in England. I ask honorable senators whether my affection for them, and for the land where I was horn, is likely to be reduced by the passing of a bill of this kind, which legal experts have described as necessary for the removal of obstacles to the satisfactory operation of certain Commonwealth laws. I am prepared to accept the assurances of men like the honorable member for Warringah (Mr. Spender) and the right honorable member for Kooyong (Mr. Menzies), both of whom are brilliant constitutional lawyers, that the passage of this bill would not affect the relations of the Commonwealth with the Motherland and with other parts of the Empire. Had an anti-Labour government remained in power, and had advice been tendered to it by the Solicitor-General, similar to that given to the Curtin Government, no doubt it would have introduced a similar bill. I take second place to nobody in my desire to maintain the bonds of Empire, and in my love for the Mother Country. No statute could destroy that affection.

The discussion on the measure in this chamber and in the House of Representatives has demonstrated the need for a national non-party government. I should have liked a measure of this kind to have been submitted by a government representative of all section.? of the people. That would have removed all grounds for the suggestion that the game of party politics has been played in connexion with this bill, or that there it a desire to create disunity. Some of our allies, and some of the other dominions of the Empire, must be surprised at the bitter political debates that take place in this Parliament. I say definitely that the party political game is not being played in any part of the Empire to the degree that it. is being played in Aus tralia.

Senator Leckie:

– Whose fault is that?

Senator FOLL:

– It is the fault of the present Government because it has consistently refused to accept the generous offers made by the parties in opposition to form a national government. I believe that if the Government would strengthen its ranks by including a number of the best intellects in the House of Representatives - I am prepared to exclude the Senate from representation - we should get away from the party political game. Honorable senators know that that game is being played, and that it is not only causing disunity among the people, but is also interfering -with the nation’s war effort. I can understand why members of the fighting forces are talking of f orin-; ing their own political party; they are becoming disgusted with the party politics being played in Australia at the present time. I know the moves that are going on among service men and women to form their own political party. The continuance of the party political game will be the best way to feed the movement that. is already taking shape in Australia. I shall support the bill because I believe that it is of little consequence and also because it will clear away certain difficulties which confront the Government at the present time. Senator Allan MacDonald spoke of propaganda in relation to this bill. I wish that in respect of many more measures which come before us we had submitted to us the same careful analysis as has been presented to us on this occasion. I confess that I was troubled about this bill, but the position has been made clear to us not only by the Attorney-General (Dr. Evatt) but also by legal gentlemen on this side of the Senate. I do not doubt that the Asis’ powers will seize upon this legislation, or any other subject discussed in this chamber, for propaganda purposes. I listen fairly regularly to some of the Axis broadcasting stations, and I am convinced that they do not need a measure of this kind, or anything at all, for them to indulge in pernicious propaganda. A few nights ago, when listening to the Tokyo radio station, I heard the announcer make political capital out of the death of the mother of the Minister for Munitions (Mr. Makin). In my opinion, that was a dastardly piece of propaganda, but no one but a fool would be led away by it. Our enemies will say or do anything, and we have to counter their propaganda, not by propaganda of the same type, but by telling the people the truth. One fact which impresses thinking people the world over is that in this Parliament we can discuss freely the various problems that arise from time to time. I have no fear whatever that any ill will come out of this measure. If I thought that it would do anything to disrupt the Empire,

I should vote against it; but- it has been so clearly demonstrated that it is a trivial bill, designed to remove certain obstacles while at the same time improving the relations between Australia and the Motherland, that I shall vote for it.

Senator SPICER:

.- As I differ from a number of my colleagues on this side of the chamber, I desire to state, as briefly as I can, the reasons which impel me to vote for this measure. I believe that there are people on both sides of this controversy who entirely misunderstand the real character of this legislation. Attempts have been made by many persons to make the position clear, but I think that the debate this afternoon has demonstrated either that members do not understand, or will not understand, its real character. In the course of discussions of this measure in recent weeks, it has been repeated over and over again that, in considering this legislation, we are not concerned with any question of our status as a member of the British Commonwealth of Nations. With that statement I entirely agree.

Senator Allan MacDonald:

– The honorable gentleman is making the same mistake as Lord Balfour made in 1926.

Senator SPICER:

– I am not making the fault which the honorable senator made when he said that this bill takes us back to the Imperial Conference of 1926. He quoted from the proceedings of that conference the remarks of various statesmen which indicate that the proposals which were then before the conference were either wise or unwise according to the point of view of the speaker. The proposals which were put before the Imperial Conference of 1926 were adopted.

Senator MCBRIDE:

– Not by Australia.

Senator SPICER:

– They were adopted by Australia. The recommendation made by the Imperial Conference of 1926 had the support of Australia. I do not need to go outside the bounds of the measure before us to establish that position, because the schedule to the bill is a copy of the Statute of Westminster. That statute was passed by the Imperial Parliament as the result of an Imperial conference. It was intended to declare, among other things, in the form of legislation the position of the Dominions as a result of that conference, and to give effect to certain legal consequences “which flowed naturally from the new status of the Dominions. Not only did we approve the resolutions of the Imperial Conference, but, as appears in the Statute of Westminster itself, we also requested the Imperial Parliament to pass that statute. Whether we adopt the statute or not, certain of its provisions apply to the whole Empire, so far as its future conduct as an association of nations is concerned. The bill contains two important recitals which it is not necessary for us to adopt in order for them to affect our relations with Great Britain. In fact, we have no power to adopt those recitals. They are in force to-day. One relates to the succession to the ‘Crown. It provides that no change in succession to the Crown shall be made without the consent of the Dominions. That, in itself, was some alteration of the status of the Dominions; and it is an alteration which is an established fact, and one which is entirely unaffected by our adoption of the statute. The other recital is very closely related to the matter with which we are concerned. It indicates that it would be contrary to the established constitutional position of the Dominions for the Imperial Parliament to pass laws having operation in the Dominions except at the request of the Dominions.

Senator Herbert Hays:

– In actual practice, that has been the case ever since federation.

Senator SPICER:

– That may be so; but it is important in relation to what I have to say. We have, in the recitals in the statute, an abrogation by the British Parliament of its right in the future to pass laws for the Dominions except at the request of the Dominions. Thus, so far as the future is concerned, we are not going to have any further Merchant Shipping Acts, for example, because the British Parliament itself has given up its right to pass legislation for the whole Empire except at the request of the Dominions. It will not, in the future, pass legislation of the character of the Merchant Shipping Act; and, whether or not we pass this bill, that position is established. That reduces the issue to a very small compass.

TASMANIA · NAT; UAP from 1931; LP from 1944

– That destroys the argument of the PostmasterGeneral (Senator Ashley) when he introduced the bill.

Senator SPICER:

– No. I shall show the exact compass that we are concerned with in this bill. That recital does not touch the position of certain Imperial legislation which had been passed before we reached the stage where the Imperial Parliament regarded such action as being contrary to modern constitutional practice, such legislation being operative in the Dominions, and having been passed during last century. It is legislation which expressly provides that it is to operate in the Dominions. In those circumstances, it does not seem to me to be very important to come to this Parliament and say : “ Well, now, the rule which is applying so far as the future is concerned should also be applied so far as past legislation is concerned. Because there is legislation which operates in the Dominions by its own force, it is desirable, in order to complete the position, that we should take the power which this bill gives to us to repeal and alter that Imperial legislation.”

Senator McLeay:

– >Can a contract be ratified with only one party to it consenting ?

Senator SPICER:

– This is not a matter of contract. We cannot force the Imperial Parliament to pass a law which is applicable to the whole Empire if the Imperial Parliament, in its wisdom, says, in effect, that it does not propose to do so. That is what the Imperial Parliament has said. There is no question of contract about that at all. It is a mere declaration of the way in which the Imperial Parliament itself proposes to exercise its powers in the future. We are not concerned with that side of the matter. We are concerned with it only from the point of view of the legislation which has been passed by the Imperial Parliament - and there is not a great deal of it - before this new constitutional position had come into being. It seems strange that we should accept the view that the Imperial Parliament should not pass another Merchant Shipping Act in the future which is to apply to us, but, at the same time, refuse to accept the view that we should have the right to repeal, 01 amend, the Merchant Shipping Act which was passed by the Imperial Parliament 50 years ago. That is the position; and it is associated with the Colonial Laws Validity Act. It is a rather interesting reflection, although it has not a great deal to do with the bill, that we owe the Colonial Laws Validity Act to the activities of a certain Chief Justice of South Australia. That act, as its name suggests, was not intended to invalidate anything. It was intended to give validity to laws, the validity of which had been questioned. In the early days, that Chief Justice of South Australia for some time took the view that the South Australian Parliament had no power to pass laws which were inconsistent with the laws of Britain. He was not then only referring to the laws of the British Parliament which had been made applicable to the British Empire, but to British laws generally. The position became so had that it became necessary for the Imperial Parliament to put it beyond doubt.

Senator A J McLACHLAN:

– That gentleman had a sit-down strike.

Senator SPICER:

– Yes. Consequently, the Imperial Parliament provided in the Colonial Laws Validity Act that no act of the parliament of a dominion should be invalid merely because it was in conflict with the law of Britain. At the same time, however, it had to make provision for those laws which had been or might be passed by the Imperial Parliament, and which were expressly made applicable to the Dominions. The Imperial Parliament made a proviso that a dominion should not pass a law which was repugnant to an act of the Imperial Parliament which operated in a dominion. That is the origin of the Colonial Laws Validity Act. I believe that there are not now a. large number of British . statutes to which its provisions apply.

Senator Allan MacDonald:

– Are there any which are worth bothering about ?

Senator SPICER:

– If there are none worth bothering about, let us pass the bill.

Senator Allan MacDonald:

– Then there is no need for the bill.

Senator SPICER:

– That is not the case. The honorable senator said that there could be no repugnance between an Australian law and the law of Britain. I am afraid that I do not understand him. The plain fact is that we have laws such as the Merchant Shipping Act, which makes certain provisions with regard to shipping, those provisions being applicable in this dominion.

Senator Allan MacDonald:

– I doubt it.

Senator SPICER:

– As a lawyer I can assure the honorable senator that it is so.

Senator Allan MacDonald:

– We have our own Navigation Act.

Senator SPICER:

– I know we have, and we have considerable doubts as to whether some portions of that act are not invalid because of their repugnancy to the Merchant Shipping Act. I am now charged with having some interest in the business, because I am told by interjection that the legal profession lives on doubts. I am, however, at the moment making a plea for the removal of doubts. I can assure honorable senators that it is very much in the interests of the legal profession that we should retain all these provisions, because they do create doubts. The provisions of the Merchant Shipping Act apply here, and it is quite obvious that it is difficult for a draftsman, charged with the responsibility of drafting a regulation to control shipping during the war, to draft one which is not repugnant to the Merchant Shipping Act or to some of its provisions, or in other words, inconsistent with it.

Senator Herbert Hays:

– Those are only legal quibbles.

Senator SPICER:

– They are realities. What appears in the Merchant Shipping Act appears as an act of the Imperial Parliament operating in the Australian Commonwealth, and if we find something in the Navigation Act, or in regulations under the National Security Act, inconsistent with it and contrary to it, then they are repugnant to it and have no legal effect.

Senator Herbert Hays:

– That may apply to our own Constitution and to many things that we have done in this Parliament.

SenatorSPICER. - We have perhaps done in this Parliamenta number of things which, if they were questioned, might be declared to be contrary to our own Constitution, hut that does not seem to be an argument why we should retain other difficulties under the Merchant Shipping Act or the Colonial Laws Validity Act.

Senator HERBERT Hays:

– We have not had difficulties under the Merchant Shipping Act.

Senator SPICER:

– -We have had thom. There are cases in which these troubles have arisen.

Senator Herbert Hays:

– And they have been straightened out.

Senator SPICER:

– They have not. There are cases in which the provisions of our law have been held to be repugnant to the Merchant Shipping Act. The immediate question, however, is this: The Attorney-General and his department say, and I oan quite understand it: “We are having great difficulty about some of these national security regulations “. Consider the position of a draftsman who is told to make some provision about ships in the ports of Australia. He cannot disregard these things. If he is a good draftsman he knows his law, and will immediately turn to the Merchant Shipping Act to see how for he can go, having regard to its provisions. He may find, on the particular subject with which he is concerned, that he cannot go very far. He then must go to his Minister and say, “Here is a set of regulations, but I do not know if they will stand. I cannot guarantee that they would be upheld by the High Court if they were attacked “.

Senator Herbert Hays:

– Who would question them 1

Senator SPICER:

– Many-people might challenge their validity. If a shipper or a ship-owner found that his activities were unduly restricted, or thought they were, by some such regulation, he might very well have reason to ask a lawyer : “What can you do for me in this case ? “ The lawyer, looking at it, would say, “ That is easy enough, you need not take any notice of these regulations; they are not worth the paper they are written on “.

TASMANIA · NAT; UAP from 1931; LP from 1944

– And the Government of the United Kingdom would pass a regulation to say that they were valid.

page 1513



Senator SPICER:

– No. In opposing this measure, we appear to reach this rather ridiculous position : We have bad granted to us in this Parliament the power to put this condition of things right, and remove these impedimenta, yet it is suggested that, although these difficulties exist, we should not exercise the power which the Imperial Government has given us to put them right for ourselves, but should trouble the Imperial Parliament to put them right for us. I think that is a rather unnecessary and long-winded way of going about it. If, _ by passing a measure of this kind, which is merely concerned with a few legal technicalities, we can remove what are unnecessary and quite useless restraints upon our activities, then I think we should do fo. We have been told quite rightly that there are certain measures which we oan pass under the Merchant Shipping Act- and I think this also applies to the Colonial Courts of Admiralty Act - that require th« assent of His Majesty the King. It is recognized by the opponents of the measure that the assent of His Majesty would, in the existing constitutional position, be given to any such laws upon the advice of his Australian Ministers, and no other, so that it is merely a question of whether the Governor-General in Australia shall act on the advice of the Australian Ministers in these matters, or whether the King in Great Britain shall act on that advice. That is the whole issue which arises. The real questions are going to be determined in each case by the Australian advisers, and it is only a question of who will actually complete the act - the Governor-General or the King himself.

Senator HERBERT Hays:

– Does it really matter?

Senator SPICER:

– I suggest that it matters very much from the point of view of convenience. If that is all it is reduced to, it seems to me that if we can get rid of the necessity of communicating with Britain, with all the delay that is involved in it, we certainly should do so. There is no risk of the Empire falling to pieces because, instead of the Commonwealth Government going to Britain to ask for the King’s assent, it asks for the assent of the Governor-General.

Senator A J McLACHLAN:

– And he is the representative of the King.

Senator SPICER:

– Exactly. It is a question of convenience. This statute has been passed to enable us to adopt it if we think it convenient to do so. It seems to me that in the existing circumstances it is convenient, and that we should adopt it. I ask leave to continue my remarks at a later date.

Leave granted.; debate adjourned.

page 1514


Motion (by Senator Collings) agreed to-

That the Senate at its rising, adjourn to to-morrow at 10 a.m.

page 1514


The following papers were pre sented : -

Documents relating to Lend-Lease and Reciprocal Lend-Lease Arrangements between the Governments of the Commonwealth of Australia and the United States of America.

National Security Act -

National Security (Army Inventions) Regulations - Orders - Inventions and Designs (2).

National Security (Emergency Control) Regulations - Order - Military powers during emergency. ,

National Security (General) Regulations -

By-laws and Orders - Controlled and Protected Areas (2).

Orders -

Bread Control (South Australia).

Bread Industry (New South Wales).

Control of retail delivery of commodities.

Milk Vendors (South Australia).

Post and Telegraph censorship.

Prohibited places.

Prohibiting work on land (2).

Taking possession of land, &c. (153).

Use of land (10).

Regulations - Statutory Rules 1942 - Nos.

395, 396, 397, 398, 399,. 400, 401, 402, 403, 404; 405, 406, 407, 408, 410, 411, 412.

Science and Industry Endowment Act - Report by the Auditor-Genera) on the accounts of the Science and Industry Endowment Fund for year 1941-42.

Seat of Government Acceptance Act and Seat of Government (Administration) Act - Regulation No. 8 of 1942 (Weights and Measures Ordinance).

War Service Homes Act - Report of War Service Homes Commission for year 1941-42, together with statements and balance-sheet.

Senate adjourned at 6.10 p.m.

Cite as: Australia, Senate, Debates, 8 October 1942, viewed 22 October 2017, <>.