23rd Parliament · 2nd Session
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) took the chair at 3 p.m., and read prayers.
– Has the Minister for Civil Aviation seen a report in to-day’s press that Ansett Transport Industries Limited is negotiating to take over EastWest Airlines? Is Ansett Transport Industries Limited so prosperous that it can find large sums of money wilh which to finance a cash offer or to negotiate an exchange of high dividend bearing shares for taking over the East-West Airlines in addition to the Butler organization, Guinea Airways and Queensland Airlines Proprietary Limited? If so, how can the increase of air fares that has just been announced be justified?
– I have seen the report to which the honorable senator refers. To put the record right, let me say that the report, I believe, states that Ansett-A.N.A. has made an offer to the directors of East-West Airlines, and that the directors of East-West Airlines have rejected the offer. As to the merits of the take-over bid itself, I simply remind the honorable senator that Ansett-A.N.A. is a public company the members of which elect their own directors. Those directors in turn conduct the business in what they consider to be the best interests of the shareholders. If the directors err in any way they are answerable to the shareholders. With regard to the acquisition of the Butler organization and Queensland Airlines Proprietary Limited1, I have explained before ad nauseam that the takeover so described was not an actual purchase of those companies by Ansett-A.N.A. They had already been taken over by the old A.N.A. Proprietary Limited, and they were acquired by the Ansett organization when it took over A.N.A.
– Ansett-A.N.A. must fmd the money to pay dividends in respect of all these take-overs.
– Yes indeed, and it may occur to the honorable senator that in consideration of that obligation to pay dividends to shareholders in the company, the directors of the company may consider that if they were able to take over EastWest Airlines they would be in a better position to pay the dividends. As to the increase of fares, I had expected a question about that. At this moment I only want to say that this increase was the subject of discussions which, as I informed1 the Senate, took place last week. The increases spring inevitably from the increased costs that have been, incurred by the airlines in recent months.
– My question is addressed to the Minister representing the Minister for Trade. I desire to inform him that the opinion was expressed recently by a noted authority on the wool industry, Mr. G. B. S. Falkiner, that if the United States Government could be induced to remove the present tariff on Australian wool, woollen mills in the United States would use a higher percentage of Australian wool. He said that American wool-growers could not produce wool as cheaply as our growers in Australia. Is the Minister of the opinion that the Australian Government is doing everything possible to secure the lowering of this tariff, so necessary to enable Australian wool to compete with American-produced wool?
– I remind Senator Pearson that my colleague, Mr. McEwen, has, on several occasions, stated publicly the nature and the strength of the representations that he has made to the United States Government on the disadvantage or detriment to Australian trade of the tariff imposed on Australian wool entering the United States, and also as a result of restrictions imposed on the importation of Australian lead and zinc to the United States of America. I think Mr. McEwen has expressed himself in pretty forthright terms on these matters which so closely affect Australia’s trade, and 1 think he can be safely trusted to continue to make these representations on every occasion he thinks appropriate.
– I direct a question to the Minister for National Development. Has the Commonwealth Government made an exhaustive study of the iron ore reserves of Australia? Has a comprehensive report on such reserves been submitted to the Minister? If he has received such a report, does he intend to make it available to the Senate and the public?
– One of the functions of the Bureau of Mineral Resources is to survey the natural resources of Australia so far as they relate to the mining industry. The bureau has made a survey of iron ore reserves. A great deal of the information in its possession has been obtained of necessity from the holders of the various licences and leases. That information is the property of those particular people; it has been made available to the bureau on a confidential basis. I am at present considering the appropriate course to take in relation to the information I have to hand. I state the position because I cannot give an assurance that the information will be made public.
– Is the Minister representing the Minister for Primary Industry able to state when the Dairying Industry Committee of Inquiry will conclude its investigations, and when its report will be available?
– It is not possible to say exactly when the report of the committee will be available. The only information I can give the honorable senator is that the committee has finished taking evidence and is now spending its full time evaluating the evidence given to it, which runs to some 3,000 pages. As soon as the committee has done that, the report will be available.
– By way of preface to my question, which is addressed to the Minister representing the Minister for Immigration. I refer to the case of a Greek working man who was reported to-day to be bringing his family consisting of a wife and six children to Australia by instalments at his own expense - a very heavy burden for any lowpaid man to bear. As this man has been p?.:ted from his wife for five years and states that, at best, he cannot save enough to bring her here for at least two more years, 1 ask the Minister: First, as certain other migrants from a variety of European countries receive from the Government substantial assistance to bring themselves and their families to Australia, why is there apparently no provision to assist such a good family man as Mr. Scoundouroglou and others like him? Secondly, does not this inequality of treatment open the door to suggestions that Australia observes a policy of racial discrimination in regard to continental European migrants? Thirdly, will the Government re-examine the position to ensure reasonably equal treatment for all continental European nationalities?
– The honorable senator has raised an interesting question. I have always been loath to consider individual cases that are referred to in questions without notice. The opportunity is available to honorable senators to discuss individual cases directly with the Minister for Immigration and to obtain an answer in respect of them. There must be some reason for the position that has arisen in the case lo which the honorable senator has referred. I understand that in Australia there are committees which assist, by way of advances, immigrants who desire to bring their wives or other members of their families to Australia from other countries, and I believe that provision is made for the advances to be repaid by instalments. I commend the very good work that is done in this respect. Perhaps the case to which the honorable senator has referred is one for review by a committee of that kind. As to the rest of the question, if the honorable senator will place if on the notice-paper I shall ask the Minister for Immigration to consider it and supply an answer.
– I ask the Minister for Customs and Excise whether a decision has yet been made regarding the representations made by me, on behalf of Western Australian cereal growers, to have the import duty on Onas headers waived.
– -Representations from Queensland, Tasmania and Western Australia have been received in regard to an all-crop header known as the
Claas, and other such machines made in various countries. I have given a lot of consideration to this problem. I am very grateful to the representatives from Western Australia and Queensland for the detailed information they gave me when they placed their case before me on a number of occasions. It was a particularly technical case and it took us a considerable length of time to arrive at a proper decision. A decision has now been made. Only yesterday, I advised by mail all those who had inquired of me, that we had decided to grant free importation into Australia of all Claas headers, with the exception that, in accordance with the United KingdomAustralia Trade Agreement, we have to approach the Board of Trade to see whether a suitable equivalent piece of machinery is available from Great Britain. Under tariff item 449 (a) such headers may be brought in free of duty, apart from the preferential duty of Ti per cent. If, on advice from the Board of Trade, we ascertain that there is no comparable machine available from Great Britain, imports will be duty-free.
– I ask the Minister representing the Minister for Health whether he has seen a report of evidence given, before the Royal Commission on Fluoridation, at present sitting at Toronto, wherein Dr. Charles Brusch stated that -
And also that -
Tn view of the fact that some local authorities in Australia are considering the introduction of fluorine into drinking water, will the Minister consider bringing down legislation banning its use until such time as scientists have reached a firm decision on this controversial matter, and at least until the finding’s of the royal commission now sitting in Canada are available for complete examination?
– This has been a matter of controversy in a number of municipalities. A good deal of conflicting evidence is available from many eminent medical authorities, of whom some are in favour of fluoridation and others against it.
The responsibility for introducing fluorine into municipal water supplies rests largely on the municipalities. They have the advantage of advice both for and against, and they carry the responsibility for making the decision. In addition they may, if they wish to do so, turn for advice to State governments and State departments of health. 1 have stated my own reactions to the proposal. If the honorable senator will put the question on the notice-paper, I shall obtain an answer for him from the Minister for Health.
– I direct a question to the Minister representing the Minister for Trade. In this morning’s edition of the “ Canberra Times “ under the caption “ Indian Purchases May Boost Wheat Sales by Australia”, the following report appears: -
India’s decision to buy 400,000 tons of wheat a year for the next four years is expected by trade experts to boost Australia’s wheat sales substantially.
But in this morning’s issue of the “ Sydney Morning Herald “, under the caption, “ India Seeking Big Cut in Australian Wheat Purchases “, the following report appears: -
The Indian Food Minister, Mr. S. K. Patil has asked Australia to allow India to buy less Australian wheat.
Has the Minister any information on this matter and can he give us the facts?
– 1 saw both the newspaper reports to which the honorable senator referred. The situation, as I understand it, is this: The United States negotiated this transaction with India under its legislation. As I told the Senate, I think in answer to a question yesterday, one of the benefits that Mr. McEwen obtained in his negotiations was the right of consultation on transactions such as this. The deal between the United States and India provides that in addition to taking this large parcel of wheat, the proceeds of the sale of which will be left in India to assist India’s exchange and1 financial position, India is to buy 400.000 tons of wheat on ordinary commercial transaction. That is a deal, as I understand it. between India and the United States of America. If the press correctly reports that the Indian Minister is asking other nations to reduce their sales to India, he should take up that matter with the United States and not with the other nations, because the terms of the arrangement between India and America provide that the stated quantity will be bought on the open market.
– I ask the Minister for Civil Aviation whether his attention has been directed to the report in the “Canberra Times “ this morning that, due to dense fog, six aircraft were circling over Canberra at the one time yesterday, for a period of up to three hours. Is it not uneconomical that jet aircraft should use up fuel and lose valuable time by circling idly for hours in the air, to say nothing of the tedium and irritation to passengers and crew? Would it not be more satisfactory for all concerned, once the density of the fog had been determined, to stop aircraft from calling at Canberra until the fog had shown definite signs of lifting?
– I did not see the report referred to, but I can assure the honorable senator that I am well aware of the circumstances to which he refers. I regret that on this occasion air passengers suffered inconvenience. I think that we in this country should count our blessings and recognize that it is only on very few occasions indeed that weather conditions of this sort do occur and cause inconvenience similar to that suffered yesterday.
Actually, one of the characteristics of the fog at Canberra airport yesterday which made control most difficult was that at intervals of about ten minutes the fog first showed signs of lifting and then, for some inexplicable reason gave indications of coming down again. I am told by the weather people associated with my department that it was a most unusual experience.
– Are you sure it was not hot air?
– I am sure it was not. I can assure the honorable senator that every one connected with my department, including the weather officers, likes to give efficient service. I am sure it was not hot air. I am convinced that it was a genuine experience. It does not occur frequently, and I trust that we shall not have another experience of this sort for some time to come.
– I ask the Minister representing the Minister for Primary Industry whether it is a fact that, during the last eight or ten years, there has been what one might term almost a revolution in cheese processing in Australia. I ask him also whether it is a fact that 40 different kinds of cheese are now being processed in Australia.
– I think the honorable senator states the position accurately. I do not know exactly how many types of cheese are being manufactured in Australia. It is a fact that, as a result of the bringing here from many countries overseas of migrants who are accustomed to a particular type of cheese, there has been a great expansion of the types available to the Australian public Now one may buy not only tasty or mild cheese, but all sorts of different kinds and makes, and this has the fine result of being very good for the dairying industry.
– I direct a question to the Minister for Civil Aviation. Will he inform the Senate of the delays that have taken place over the last month, if that is a period for which the information can be readily obtained by his department, in flights undertaken by Viscount aircraft taken over by Ansett-A.N.A. from TransAustralia Airlines? Can he also give similar information, covering the same period, concerning the Electras taken over by T.A.A. from Ansett-A.N.A.? I further ask the Minister, as this Parliament will be going into recess next week-
– You hope next week.
– T have no personal wishes on the matter at all; I am just going by rumours that fly around this place. In any case, the Parliament will be going into recess in the near future, and I ask the Minister to give his reply - in contrast to the way in which the Electras’ schedules are maintained - without delay.
– I assure the honorable senator that I will get the information for him and that it will be as reliable as are the flight schedules of both the Viscounts and the Electras.
– My question also is addressed to the Minister for Civil Aviation. ls it the established policy of the Liberal-Australian Country Party Government that any person travelling by air on Commonwealth Government vouchers has the freedom - a right cherished by all Australians - to travel on the aircraft of the airline of his individual choice? Do Ministers and departmental heads from time to time bring this policy to the notice of members of their staffs to show them that the Government favours the retention of this freedom of choice which was denied defence personnel and other Commonwealth public servants under the Labour regime?
– It is a wellestablished and well-known fact that the policy of this Government is to allow persons travelling on Commonwealth Government warrants to choose the airline by which they wish to travel, to meet their own convenience or, for that matter, their own personal preference. It is so well known that I confess 1 have never thought it necessary to bring it to the notice of officers of my own department. In view of the honorable senator’s question, I will be interested to have a look at the choices made by officers of my department to see how many flights are made on each of the two airlines.
– I direct a question to the Minister for Customs and Excise. Some months ago he introduced a new system of supervising petrol stations in order that the revenue might be collected more cheaply. At the time the Minister had a schedule printed in the Commonwealth Government “ Gazette “ showing the number of employees necessary for the new organization. Can he say whether the number set out in that schedule has proved sufficient to do the work, or whether he has found it necessary to increase it?
– I cannot answer the question offhand, because it concerns details of administration. I have had advice, almost from week to week, from the department concerning the placement of officers transferred from the oil industry. I met the officers’ association two or three times on this matter. I have been most careful to keep an eye on the transfers of these officers to ensure that they have not suffered financially. I understand that none of them has suffered in that way. The only additions that have been made to the Customs staff, to my knowledge - I will get full information for the honorable senator - have been brought about by the relaxation of import restrictions, which has resulted in a great deal of extra work for the department.
– I am concerned only with the section dealing with excise on petrol.
– I am fully aware of the honorable senator’s concern, and I shall get the information he requires.
– I direct a question to the Minister representing the Minister for Labour and National Service. It relates to the compulsory conference that His Honour Mr. Justice Ashburner convened last week at the instance of the Minister for Labour and National Service. Can the Minister inform the Senate of the progress of that conference? As the dispute concerned the availability of waterside labour at Melbourne on Sundays, will he inform the Senate of the conditions of work there during the last week-end?
– I think it would be better if I got a written reply to the question from the Minister for Labour and National Service. I am not quite sure what is wanted when I am asked to state the conditions of work last Sunday. Does the honorable senator want to know whether any work was done, or does he want to know the conditions under which work was done?
– Obviously, the second question would not arise if no work was done. I shall ask the Minister for Labour and National Service to supply a written answer.
– I direct a question to the Minister for Civil Aviation. It refers to the announcement of an increase of air fares. Is the free enterprise company, Ansett-A.N.A., obligated to obtain Government approval of any increase of fares such as that which has been announced? Was ministerial approval granted in this instance? Will the Minister make a brief statement to the Senate of the circumstances warranting the increase?
– The procedure followed in this matter flows from the Civil Aviation Agreement Act 1952, and also from the 1957 act. The legislation provides that one of the things which the airlines shall keep under constant review is the level of fares. The honorable senator doubtless will recall that there is provision in the agreement contained in the act of 1952 for the establishment of a committee, under a chairman, to which an aggrieved party can appeal. By the act of 1957, there was interposed a co-ordinator to deal with, so to speak, day-to-day matters. If the airlines cannot agree on such matters, the coordinator is called in and sits as the chairman of the co-ordinating committee.
– As an arbitrator?
– Yes, as an arbitrator. His decision is subject to an appeal by either party to the chairman of the other committee to which I have referred. In this case, the airlines met, as I described last week, and agreed on the increases that were announced yesterday.
– It is dictatorship.
– It is not dictatorship at all. The factors which led to this fare increase are fairly well known in general, but possibly the details may be of interest to the Senate. The recent margins increases are expected to add to the direct costs of the airlines at the rate of £300,000 per annum.
– Of both airlines?
– Of each major airline. The break-up is as follows: - Pilots, £110,000; clerks, £90,000; hostesses, £.16,000; flight engineers, £5,000; engineering staff, £18,000; transport staff, £12,000; general, £29,000; and executives, £20,000. That makes a total, as I have said, of £300,000. The marginal increases will also add, at a conservative estimate, £100,000 to the expenses of each of the operators for the purchase of stores and the thousand and one things that go to make up the equipment of an airline. Thus, each of the major airlines is faced with increased charges amounting to £400,000. I think those increased costs adequately justify the increases that have occurred in fares, having regard to the marginal nature of the industry. I also refer honorable senators to the profit figures returned by TransAustralia Airlines - the Government’s own airline - last year.
– I desire to ask the the Minister for Civil Aviation a question arising out of the one just asked by Senator Wright. Can the Minister say whether any of the increased costs have been absorbed by the two major operators? If so, will the Minister indicate to what extent those increased costs have been absorbed by the airlines and to what extent they have been passed on under the new scale of fares?
– The honorable senator poses a most difficult question inasmuch as it necessarily involves an assessment of the fluctuation in revenue which may now occur. If one takes what the statists refer to, I believe, as a straightline projection, it may appear that these increased charges would indicate that the airlines have not absorbed any of the additional costs, but the whole experience of airlines over a period of years is that increased costs cause a disruption in the rate of traffic growth of such an order that the airlines cannot, with anything like precision, forecast what their revenue will be. In that connexion I refer the honorable senator to the very thoughtful statement published this morning in the press by the chairman of the Australian National Airlines Commission, who points out that accumulating costs over a period have produced a situation in which the airlines must at this point impose this increase of fares. He also points out that the increase has been kept by the airlines to the lowest possible figure commensurate with commercial good judgment.
asked the Minister representing the Minister for the Army, upon notice -
– The Minister for the Army has now furnished the following reply: -
asked the Minister representing the Minister for the Army, upon notice -
In respect of the party of field engineers of the Citizen Military Forces flown from Tasmania to Liverpool, mentioned by the Minister for Defence on 29th March, 1960-
How many men were in the party?
What was the cost of transport to and from Tasmania?
What special experience was available at Liverpool which occasioned the trip?
– The Minister for the Army has furnished the following replies: -
asked the Minister representing the Treasurer the following question, upon notice: -
First, does the Government agree with the view expressed to certain overseas financial circles that the sterling area is crumbling, that it has lingered too long on the stage and that the practical purposes that it was designed to serve have disappeared or become irrelevant? Secondly, is it a fact that in the immediate post-war decade certain members of the sterling area were large net dollar earners? Thirdly, is it a fact that certain of these dollar-earning countries have now secured their independence and will increasingly insist on spending all their own earnings? Fourthly, is it a fact that this great problem has taken on a new urgency since the emergence of the European Economic Community, which undoubtedly is a rival economic bloc? Finally, will the Government prepare a considered statement on this important subject, so that the minds of the Australian people will be fully informed on this vital and intriguing situation?
– The Treasurer has replied as follows: -
asked the Minister representing the Minister for Health, upon notice - ls -any research being undertaken in Australia or elsewhere towards the finding of a blood test which would indicate to doctors the presence of cancer in the human body before its presence becomes obvious in other ways and before it is too far advanced for a cure to be effected?
– The Minister for Health has furnished the following reply: -
The discovery of a blood test to detect cancer would be of immense value to the human race, and such a test is one of the ultimate aims of much research into cancer. Nearly all large research institutions concerned with the cancer problem would be devoting some of their activities to the discovery of this test, but so far, no successful results have been reported.
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has furnished the following reply: -
asked the Minister representing the Minister for Health, upon notice -
How many doctors received payments under the medical benefits scheme during 1958-59?
– The Minister for Health has furnished the following reply: -
Under the medical benefits scheme payments of Commonwealth medical benefit are made to contributors to registered medical benefits organizations. Approximately 5,500 doctors received payments from the Commonwealth under the pensioner medical service.
asked the Minister representthe Minister for Health, upon notice -
In view of the fact that the outstandingly significant survey, published by the Department of Health, and showing that infections caused by “ golden staph “ have become widespread in the community and that a high proportion of strains of this germ have become resistant to penicillin, has created considerable interest not only among doctors but among people outside that profession, resulting in inquiries being directed to members of the Parliament, will the Minister arrange for copies to be sent to senators and members of the House of Representatives and also to those organizations which are actively associated with the manufacture of antibiotics?
– The Minister for Health has furnished the following reply: -
I concur with the views of the honorable senator, and I am happy to inform him that I have made arrangements for copies of the survey to bc distributed in accordance with his suggestion.
asked the Minister representing the Minister for Works, upon notice -
Minister for Works has furnished the following reply: -
– On 6th April, Senator Marriott asked the following question: -
Does the Commonwealth Bank make ex-gratia Payments in lieu of rates in all cities and towns in which it owns and occupies buildings, or does it make these payments only when and where it desires? How do the payments that are made compare with the value of the rates that would otherwise be paid on the properties occupied?
The Treasurer has supplied the following information: -
It was the practice of the former CommonWealth Bank of Australia and it is the practice of the Reserve Bank of Australia and of the constituent banks of the Commonwealth Banking Corporation, to make ex-gratia payments in lieu of rates to local authorities in Australia in respect of all properties that the banks own. In each case the payment is equivalent to the amount that would be levied by the relevant local authority against an owner fully liable to pay rates.
– As Chairman, I bring up and lay on the table of the Senate the sixteenth report of the Regulations and Ordinances Committee.
Ordered to be printed.
– by leave - During the past week, civil aviation officials of Australia and Canada have been discussing in Ottawa arrangements for air transport services between the two countries. The existing arrangements were settled under a bilateral Air Agreement of 1946, but both countries felt these arrangements needed adjustment to meet the requirements of Canada-Australia air travellers in the jet age. Qantas already operates Boeing 707 jets on the route to Vancouver and Canadian Pacific Air Lines is to take delivery of its Douglas DC8 jets later this year.
Both delegations agreed that there was a need for the closest possible co-operation between Canada and Australia, two leading members of the Commonwealth, in the highly important field of international civil aviation. It was agreed that as a first step towards this objective the air carriers concerned, Canadian Pacific Air Lines and Qantas Empire Airways, should consult on mutual ways and means of providing, on a fully co-operative basis, efficient jet air services for Canadian and Australian air travellers. The airlines were instructed to report the result of their talks to their respective Governments who would then arrange for further official talks. The official delegation discussions in Ottawa took place in an atmosphere of great cordiality and both sides expressed full satisfaction with the progress made.
Motion (by Senator Spooner) - by leave - agreed to -
That Senator Sir Alister McMullin be granted leave of absence for one month on account of absence overseas.
Debate resumed from 5th May (vide page 802), on motion by Senator Gorton -
That the bill be now read a second time.
– The single purpose of the bill before the Senate is to increase the number of judges of the Commonwealth Industrial Court from three to four. That court has been in existence only since 1956, when the High Court, in the Boilermakers’ case, declared that the former Commonwealth Court of Conciliation and Arbitration could not validly exercise both arbitral and judicial functions. As the Senate well knows, the former court was split into two parts, one constituting the Commonwealth Conciliation and Arbitration Commission, with arbitral functions, and the other, the Commonwealth Industrial Court, the judges of which we are considering at the moment.
Two circumstances are put forward by the Government as necessitating the appointment of an additional judge. The first is the fact that Mr. Justice Dunphy, one of the members of the court, is on six months’ long service leave. Having functioned, in a rather arduous and turbulent jurisdiction, for fifteen years on the Arbitration Court, and later as a member of the Industrial Court, he, I have no doubt, not only is entitled to his leave but also deserves it The other circumstance - an unfortunate one - is that Mr. Justice Simpson, the judge of the Supreme Court in the Australian Capital Territory, who regrettably has been suffering from ill-health, has now retired. The judges of the Commonwealth Industrial Court have been involved in heavier duties, as each of them has been appointed as an additional judge to function in the Australian Capital Territory while the normal occupant of the office of judge of the Supreme Court in the Territory has been incapacitated or otherwise not available.
The Government has put to the Parliament that at the moment there are only two of the four judges normally available to attend to the work in the Australian Capital Territory and to carry on the work of the Commonwealth Industrial Court. In fact, there are only two judges of the Commonwealth Industrial Court who are now available to carry on their duties. As the main functions of that court have to be exercised by a full court comprising at least two judges, it is recognized and put to us by the Government, that the judges are working on a very tight rein. The full court of the Commonwealth Industrial Court could not be summoned if either of the two judges available was unwell or otherwise unable to act. It is true that the act relating to their appointment enables some functions to be carried out by a single judge, but the consideration of major matters requires at least two judges. It is obvious that something has to be done, and the Government proposes to meet the situation by appointing a fourth justice of the Industrial Court.
The Opposition has given fairly careful consideration to this matter. It has decided, not without misgiving, not to oppose the measure. It recognizes the practical problem that has arisen for the six months immediately ahead. The misgiving that we feel arises from the fact that we are of the opinion that the Government, in the second-reading speech of the Attorney-General (Sir Garfield Barwick), has not taken the Parliament fully into its confidence. It has not, in actual fact, given us enough information. The thought occurred to me, as I heard the Minister speaking the other day, that the situation could be met by making an immediate appointment to the vacancy in the Supreme Court of the Australian Capital Territory and then seconding that judge to act on the Commonwealth Industrial Court. I was halted in my consideration of that matter by two statements that appeared in the second-reading speech. At one point the Attorney-General said - a judge of the Supreme Court-
That is, of the Australian Capital Territory - cannot be appointed to perform the functions of the Commonwealth Industrial Court.
At a later part of his speech he said -
As the law stands the gap cannot be filled by a judge of the Supreme Court of the Australian Capital Territory.
He did not explain the position further than to make those two bald statements, which left me rather curious to know the reason for that position.
I undertook a certain amount of research to ascertain the reason, and after some fossicking 1 think I have found1 it. I should certainly like to be informed by the Minister whether I have hit upon the right answer when I say that the court appointed in a Territory is appointed pursuant to section 122 of the Constitution, which gives plenary power to this Parliament to make laws for the Territory; but that the appointment of a court under that section does not constitute it a federal court for the purposes of section 71 of the Constitution. The authority I find for that is in Power’s case, back in 1926, when on contempt proceedings, the High Court held along the lines I have just indicated - that the court is territorial; that the judge of that court does not necessarily have to be appointed for life, the Commonwealth having plenary power; and accordingly, that a judge of a merely territorial court is not available to be appointed to what is strictly a federal court, the constitutional requirement for that, under section 72 of the Constitution, being that the appointee should be appointed for life. If that is not the reason for the statements made in the second-reading speech, I should like the Minister for the Navy (Senator Gorton), in his reply to the debate, to tell me what other reason there is for them. In the time available to me, that was the only reason on which I was able to stumble.
I have glanced at the Australian Capital Territory Supreme Court Act, which deals with the appointment of a judge of the Supreme Court, and I have not found in that act any requirement that the judge of the court should be appointed for life. The act provides that the Governor-General may appoint by commission a person who has been a practising barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing, but there is no limitation as to time. For all I know, from a perusal of the act, Mr. Justice Simpson may not have been appointed for life. Would the Minister be good enough to say whether that was so, or whether his appointment was limited in terms?
– It was for life.
– Then, I think I am right in saying that the authority derives from the section I have quoted, which gives the Governor-General unlimited authority in the matter. Nevertheless, his appointment under section 1 22 of the Constitution, even though the term of his appointment was for life, would not constitute his court a federal court, on the approach that I make to the matter. I think that it would have helped had the Minister, in the second-reading speech, stated the reason for the difficulty in not being able to translate a judge of the Supreme Court to the Commonwealth Industrial Court. We are not told what is contemplated for the Supreme Court of the Australian Capital Territory. A fourth judge is to be appointed to the Industrial Court and he automatically will become an additional judge in the Australian Capital Territory. If there is to be a further permanent appointment as justice of the Supreme Court, we shall finish not, as the Minister said, with only four judges where we had four before, but with five, including the one whose appointment we are considering now and the new appointee to the Supreme Court of the Australian Capital Territory.
It is obvious that the Industrial Court is not, at this stage of its existence, completely occupied, because its judges have been carrying on in the Supreme Court of the Australian Capital Territory during Mr. Justice Simpson’s absence. It is contemplated that they will act also in the court at Norfolk Island. There is no complete statement about any further functions being assigned to the Industrial Court but it would seem, on the limited information that is before us, that four judges are adequate for the purposes of both the Industrial Court and the Supreme Court of the Australian Capital Territory. The Minister said that it was not proposed, at the moment, to fill the vacancy in the Australian Capital Territory. On the information that is available to me, I would say that it was desirable to have one judge allocated solely and completely for work in the Australian Capital Territory.
– To what extent has the judge in the Australian Capital Territory been occupied in the past?
– As far as I am told, quite fully in recent times. I know that he has been engaged on other work not connected with the court, by both the Labour Government and this Government.
– In connexion with the Army?
– Yes, and with royal commissions or investigations. I recall that he was sent as a commission of inquiry into the use of a Japanese ship, the name of which I have forgotten, to take away repatriated Japanese prisoners. He served the Government in investigations outside the court. The difficulty for litigants is that, in his absence, they have to locate a judge of the Industrial Court, who may not necessarily be in Canberra. Litigants are obliged to use agents in capital cities, which adds to the delay and expense of litigation. It would have been far more helpful in a consideration of this matter if the Government had told us exactly what was contemplated.
I can well imagine that, from a practical viewpoint, it would not be desirable to translate from time to time a person who was qualified, in general practice, to be a judge of the Supreme Court of the Australian Capital Territory, to the rather turbulent jurisdiction of the Industrial Court. After all is said and done, the latter has a specialized jurisdiction and I cannot see the wisdom of translating to it merely for temporary duty a judge without experience in that field. However, I should think that judges of the Industrial Court, with their full legal training, would fit more readily into the pattern of things in the Supreme Court of the Austraiian Capital Territory.
What misgiving the Opposition feels in this matter would be lessened if the
Minister were in a position to say that on Mr. Justice Dunphy ‘s return, one of the four Industrial Court judges will be seconded to the Australian Capital Territory as a resident judge. He would, in those circumstances, as an initial member of the Industrial Court, be available in an emergency in that court’s jurisdiction. 1 ask the Minister whether four judges are contemplated in order to enable the Industrial Court to sit simultaneously in two divisions of two judges each. I raise these matters because they occurred to the Opposition when it was considering the matter. We felt handicapped in our approach because of the absence of information on those points.
I trust that the Minister will, in his reply, be able to reassure us or let us know what is contemplated. There does appear to be, whether deliberately or otherwise, a lack of frankness in the matter that has been put before us. I found some difficulty in determining whether the Government had chosen the best method of meeting the temporary emergency that has arisen. I recognize that, quite plainly, something must be done. We ran into the difficulties that the Government no doubt encountered in considering this matter. It would help further consideration if the Minister were able to tell us something on the points I have raised.
I do not propose to avail myself of the latitude that conventionally is accorded in dealing with a bill of this nature, to open up matters connected with the powers and functions of the court. I confine myself to dealing with the particular problem that is posed by the bill. I conclude by repeating what I said at the outset. At this stage we are not opposing the measure.
.- In connexion with this bill, we should remind ourselves that when the Privy Council handed down its decision in the Boilermakers’ case, it did a great service to the Federal judiciary in as much as it established that judiciary’s complete independence either from being submerged in other fields of activity than its judicial work or from being distracted and having its true judicial function divided. Following upon that decision, the government of the day adopted the simple but very unimaginative procedure of dividing up the judges who then constituted the so-called Commonwealth Court of Conciliation and Arbitration into four commissioners and three judges, and allotted the three judges as judges of the Industrial Court, membership of which is now under consideration. This is not, therefore, the occasion to consider the efficacy of the Arbitration Court and its limitations and work.
This bill is concerned with the three judges who constitute the Industrial Court, lt is indeed surprising, in view of the experience that has followed the establishment of that court and the extent to which it has been inadequately occupied over the years, that we should be invited to concur in making provision for the appointment to it of yet another judge. But two reasons prompt one’s concurrence in the legislation. First, this court has very grave responsibility attached to it, and it has been quite evident over the past few years that there is anxiety in the trade union field as to the operations of this court and a growing agitation to confront it with opposition or to by-pass it. Every resistance is made against submission to its jurisdiction. It is therefore imperative that Parliament and the Government should fortify this court so that it will be able adequately to exercise that grave jurisdiction of which it is the custodian. I for one believe that great unions, whether of capital or of labour, must recognize that they take the benefits of the law with the obligations of the law and that the Industrial Court has the obligation of deciding the requirements of the law as affecting associations of capital and associations of labour. I think anybody who has mixed in public affairs for any length of time realizes that there must be authority behind the court in the enforcement of the law in relation to these matters. So that, in the first place, due to the circumstance that Mr. Dunphy is on long service leave, and that a vacancy has occurred on the bench of the Supreme Court of the Australian Capital Territory, I think it is essential that there should be three judges readily available, although not fully employed, to discharge any function that may become necessary in this important field of jurisdiction.
The second reason why I concur in the proposed legislation is because, intuitively, T feel it to be a fact that an appointment of this kind would not be made unless the Attorney-General was minded in some way to rationalize and re-organize the federal jurisdiction. I do not think it would be at all satisfactory to have one court operating in the territorial sphere and another court operating in the industrial sphere.
Having regard to what the AttorneyGeneral has told us of his intention, which 1 do not presume to examine upon a matter so recondite as this, to the effect that a judge of the industrial court may be asked to sit in territorial jurisdiction, whereas the converse situation is impossible, and by reason of the confidence I have in the planning of the Attorney-General as to federal jurisdiction, I concur in this provision, odd as this particular step appears to me to be.
I merely wish to add that I think that we should be aware that orders have been made by this court in the industrial sphere with regard to the enforcement of penalties for breach of its orders, and I wish to be heard by the Minister as saying that there is an imperative obligation upon the Government to ensure that none of these mechanisms is to be employed if it subtracts in any way at all from the authority of the court in this very arduous problem of law enforcement in the industrial sphere. Once this court has issued an order nothing should be done that could be interpreted - irrespective of intention - as allowing either party to a dispute that has given rise to the industrial court order to feel that governmental influence is being brought to bear to by-pass the court on matters for which it has had to take responsibility.
I emphasize that those remarks have reference to current matters, and 1 conclude by expressing the hope that the information 1 sought in a question that was put on notice will be recognized as relating to a current situation, and that it will be furnished not at the usual time when replies to questions on notice are given, but while the situation is still of living interest to the Senate.
– Unlike my leader, I do propose to examine the purposes for which the court under consideration is set up. The bill proposes to appoint an additional judge to the industrial court. This means that when Mr. Justice Dunphy returns from leave there will be four judges on this court. Having regard to the purposes of the bill, I think it incumbent upon us to examine the reasons for the appointment, quite apart from the appointment itself.
As Senator Wright has stated, the Commonwealth Industrial Court was established because of a decision in the Boilermakers’ case that the Arbitration Court had been exercising jurisdiction that it was not entitled to exercise. The additional judge is to be appointed so that the court may continue to function. If the appointment were not made one of two things could happen: Either many of the cases that would normally come before the Australian Capital Territory Supreme Court would have to be stood over or many of the cases that would normally come before the industrial court would have to stand over because, due to the vicious manner in which the Commonwealth Conciliation and Arbitration Act is applied to the trade union movement, it is required that two judges sit on the industrial court. These acts of repression are not new to a government of the type now in office. Such governments are always keenly anxious to maintain their authority in these matters.
For instance, in 1928, the Bruce-Page Government attempted to destroy the system of Commonwealth arbitration altogether. First, it amended the act to provide that a union referring any industrial dispute to the court must provide a bond of £500 together with an assurance that it would observe the order or award issued by the court on the settlement of the dispute. That Government also provided for the imposition of a penalty of £1,000 for breach of an order or award. Further, section 6a provided a penalty of £1,000 for breach of an order or award by a person who was entitled to the benefifits of such order or award.
In 1930, a Labour government sought to remedy the position that had been created by deleting from the act the definitions of “ strike “ and “ lock-out “. It also deleted the provision requiring a bond to be provided by a union when referring an industrial dispute to the court. But the employers, who are always able to get round any legislation, approached the court in 1935 with a claim for the inclusion in the award of provisions banning the limitation of overtime, and indeed banning strikes at all. The application arose out of a dispute with the Seamen’s Union, and the inclusion of the clause was declared valid despite the fact that the provisions relating to strikes had been deleted from the act. That case went to the High Court, and it was held that it was within the jurisdiction of the Arbitration Court to include such a provision in the award. The High Court also decided at that time, a prosecution having been launched, that a fine of £ 1 00 was a valid imposition under the act, despite the fact that certain provisions had been removed from it.
The Arbitration Court continued its repressive operations until 1951. In that year it attempted to fine the Amalgamated Engineering Union £500. The union appealed to the High Court, where it was determined that the Arbitration Court did not at that time have the power to prosecute an organization or a person for contempt of court, despite the fact that it had been raised to the position of a court of superior record. That happened in March, 1951, and in July of that year this Government had amending legislation placed on the statute-book to give the Arbitration Court the right to punish for contempt, but restricting the fines that could be imposed to £500 in the case of an organization, £200 in the case of a single employer or an office-holder in an organization, or £50 in any other case. Unfortunately, it made provision for a continuing offence, so that for each day on which the award, order or act was breached a fine could be imposed up to the maxima of £500, £200 or £50. An instance of such a continuing offence occurred in 1 957, when the Air Pilots Association was fined £2,000. This represented the total amount of cumulative fines for the one offence. We pride ourselves on British justice, which provides that a person can be charged, found guilty and sentenced on only one occasion for a single offence, but in this jurisdiction there is power to punish afresh for each day on which the offence continues.
– That is not peculiar to this jurisdiction. There are many continuing offences provided for in other jurisdictions.
– Well, it is a pretty harsh provision in this jurisdiction, whether it is peculiar to it or not.
– Courts have this power when dealing with people who are consistently resisting authority.
– It is a typically repressive provision, whether it is peculiar to this jurisdiction or not. Having in mind the set-up of this court and its background’, 1 say that the appointment of a further judge is typical of the Government’s attempts to create a servile State.
The Boilermakers’ case to which I have referred resulted in the establishment of the Arbitration Court in its then form. Part V. of the act provided that certain jurisdiction should be exercised by a single judge and certain other jurisdiction by not less than two judges. That brings us to the point at which it becomes necessary for this Government, if it wants to continue with this repressive legislation, to appoint another judge.
The powers enjoyed by the court are fairly wide, and they are set out in section 114. There is no appeal from the court in respect of decisions made under certain portions of the legislation, such as Sections 107, 109, 110, 111 and 112 and the whole of Parts VIII. and IX. Sections 109 and 111 are the two that are being continually used by the employers to suppress the activity of industrial organizations in their fight for justice. The use of these sections by the employers is a complete negation of the principles of arbitration as they were accepted in the early days, and as they were understood by the trade union movement when it agreed to the introduction of compulsory arbitration. It is wellknown - and I think Senator Wright would know it - that the system of compulsory arbitration is based on the minimum wages principle. This is something that we must consider in relation to both the employing and the working side of industry. Such a system of regulation of industry acts to repress the employer and1 not the worker. It lays down minimum wages and minimum conditions of employment to which the employer must conform, but it does not prevent, and was never intended to prevent, the workers from selling their labour to the highest bidder, or withholding their labour if they so desired. There is no doubt that the rights of the workers must be protected as much as those of the employers. The employers have the complete right to employ whom they will and1 not to employ particular persons if they do not want to. They have the right to close down their businesses completely if they want to, and action cannot be taken against them for initiating a lock-out if they do so.
– That is not strictly true, is it?
– If Senator Wright will let me go on I will explain to him. that it is strictly true. Only recently in Western Australia, Amalgamated Collieries of Western Australia Limited, the owners of the biggest collieries in Western Australia, circulated all members of the miners’ union employed by that company, informing them that if there was not an increase in production the mines would be closed down. The Collie miners’ union took the company before the Arbitration Court, claiming that its action constituted’ a lockout.
– The State court or the Federal court?
– The State court. I would remind Senator Wright that the Western Australian State act and the Commonwealth Conciliation and Arbitration Act run parallel, except that there is still no definition of a strike or a lock-out. The Arbitration Court agreed1 that there was a lock-out in progress at Collie, but the Supreme Court, on appeal, said there was no lock-out and that the employers- were quite entitled to close down their coalmines if they wanted to, despite the fact that the only reason given for closing down the mines was the suggestion that’ production had not been increased. Of course whenever the workers say to the employers, “£15 a. week is not enough and we want £16 a week”, the penal provisions of the legislation ace applied against them. The whole system is designed to operate against the workers. It. is not much use saying that it operates impartially on both sides: in theory it may, but in practice it does not, and’ it results in a- ridiculous position in which organizations which take industrial action are hauled before the Court and fined,, and as a consequence there is a further strike in protest against the im position of the fine. The system of repressive legislation does nothing at all to improve industrial relations. If the workers are denied the right to sell their labour a? the highest prices they can possibly get for it, our arbitration system is pretty onesided, because no restraint is placed upon the employers in fixing the prices at which goods produced- by the workers are sold. The prices are fixed, the goods are placed on the shelves, and people may buy them or leave them there, as they choose. There is price fixation in the community to-day. It is useless for any one to say that prices are not fixed-. All sorts of combines throughout Australia are fixing prices. Certain wholesalers will not supply goods to retailers unless the goods are to be sold at the fixed prices. There is a system of price fixation, but it is a system for the fixation of minimum prices, not for the fixation of maximum prices, as the Labour Party wanted to provide by statute.
Workers are prevented from exercising their right to withdraw their labour if they find that the industry in which they are employed is not sufficiently prosperous to enable them to obtain a proper price for their labour. The object of the establishment of the Industrial Court was to enable that position to continue.
It is apparent that conditions in the waterfront industry became so chaotic that it was necessary for the Minister for Labour and National Service (Mr. McMahon) to intervene and, under section 28 (3) of the act, to call for a conference. I suspect that Senator Wright meant to imply by his- final remarks that the authority of the Industrial Court should be upheld and that there should be no intervention once an order had been issued by that court. That would involve a return to what I call the old feudal system. When a strike occurred you did not negotiate with the men; no efforts to settle it were made until the strikers had- returned to work.
– That is a very good provision.
– In the opinion of Senator Maher, it is a very good provision, because he does not believe in conciliation. He does not believe that an effort should be made to get the parties to an industrial dispute to come together and settle their differences in a- proper manner.
– -I do.
– Senator Maher believes in something which is a complete negation of what he is supposed to stand for - the old liberalism. In the early days, liberalism meant the banding together of people who believed in freedom and liberty, but to-day it means legalism. Members of the Liberal Party advocate the application of the provisions of the statutes in these disputes. They do not believe in the parties to disputes trying to settle their differences. They do not believe in a case being judged on its merits - in deciding whether the workers are right or partly right, or whether the other party is right. They would say to the workers, “ Go to work or be fined “.
– Conciliation can take place after the men have returned to work.
– There can be conciliation about the matter that has caused the stoppage of work. In the current waterside dispute, the Minister has displayed some gumption; he has tried to settle it. Already the Waterside Workers Federation has been fined £500, and four more charges against it are awaiting disposal, in respect of which the court may, if it thinks fit, impose fines amounting to another £2,000. As I understand the matter, the dispute has arisen, not because the waterside workers have refused to work, but because they object to being told that they must work. They claim the right to refuse to work on Sundays. They say that it is not compulsory for them to work on Sundays. Nevertheless, this action has been taken against them. I suspect that it is that action of the court that Senator Wright wants upheld. He does not welcome the intervention of the Minister for Labour and National Service in asking a judge to call a conference in order to try to settle the dispute. Honorable senators opposite would prefer chaotic conditions to continue rather than to try to settle the dispute by conciliation. The act provides for conciliation and arbitration for the settlement of industrial disputes, but we are confronted with the old legalism. The workers are told, “The law must be obeyed. Toe the line, or else “.
– Are you not in favour of conciliation?
– I am in favour of conciliation, but those on the other side are not.
– Then why blame the Minister for his action?
– I have said that the Minister had the foresight to call a conference. If you had been listening to my remarks, you would know what I said. If you do not understand what I am saying, please be quiet.
It is apparent from the second-reading speech that the Attorney-General is looking for further work for this court. Despite the fact that the court has insufficient work today, the Government wants to appoint another judge to it. The people of Australia are wondering whether this is an indication that this court will become more active. Are the penal provisions of the industrial arbitration legislation to be used more extensively? Is that the reason why the Government wants to appoint another judge to this court? lt must be remembered that, in six months’ time, Mr. Justice Dunphy will be back on the Bench. It seems to me that the Government is fearful of greater industrial trouble occurring. If it continues to intervene in industrial matters, undoubtedly there will be more industrial troubles; there is no question about that. Apparently the Government wants to strengthen this court so that it will be able to cope with more industrial trouble. There are to be four judges, enabling two courts to sit at the one time, adjudicating on repressive legislation.
Senator Wright has said that as the trade unions accept the benefits of the law, they must also accept the obligations imposed upon them by the law. I think that sensible trade unions - they are all fairly sensible, as I know them - are prepared to accept, not only the benefits of the law, but also the obligations imposed by the law. They are not, however, prepared to become servile.
There was a great to-do in the newspapers a few days ago about the small number of man-hours or man-days that were lost in 1959. It was claimed that this was a record low number during the years since 1933. We all know, of course, that in 1933 the workers were not fighting to obtain better conditions; they were fighting for their very existence. The use of repressive legislation in the industrial jurisdiction is keeping down now the number of man-days lost to industry. It is true that to-day various organizations are attempting to disobey the orders of the Industrial Court. They will continue to do so, because it is completely opposed to the system of democracy that workers should be denied the right to say whether they will work and the times at which they will work.
– If the position is as bad as that, why are only two unions objecting to the action that has been taken?
– I think that the honorable senator is a little out of touch with what is going on in Australia to-day. I remind him that 68 unions met in Sydney last Friday and condemned the capricious use of the penal provisions of the act. The federal executive of the Australian Council of Trade Unions also met in Melbourne earlier this week to consider this question. So not two unions, but the entire trade union movement is opposed to the penal provisions of the act.
I have mentioned only one particular aspect of this repressive legislation, but there are other aspects of it. An organization may be fined £500 for a breach of an order or of an award. If the offence is a continuing one the organization may be fined £500 for each day on which the offence continues. When these matters are dealt with before the Commonwealth Industrial Court the employers invariably engage Queen’s Counsel. In the last case in which the Waterside Workers Federation was involved the employers engaged two Queen’s Counsel, costing anything from 150 guineas to 250 guineas a day. If the court finds for the employers, costs are awarded against the union, and in the last few years unions have had costs amounting to thousands of pounds awarded against them. But the worst feature of this repressive legislation is that a union may be deregistered, in which case it would lose its identity completely. That happened to the Building Workers Industrial Union some years ago, and in Victoria to-day a bogus organization known as the Carpenters Union has taken over from the Building Workers Industrial Union.
– People who break the law dislike its penalties.
– We can understand there being reasonable penalties, but the penalties that can be inflicted on the unions vary. A union may be fined £500 a day for each day that an offence continues. The union’s assets may be sold to recover the costs and the fines imposed. When the union has no more money left with which to pay fines, it is still subject to the costs that have been imposed by the court. It may then be deregistered, in which case it would go out of existence. It is not uncommon for courts to refuse to deregister an organization until they have extracted their last pound of flesh. This is the situation facing the unions, and this is what keeps them quiet and makes them servile. This Government has set out to make the unions servile. We know that to be so when we cast our minds back to 1920, 1926, 1928, 1951 and 1956.
– That is where the honorable senator should be - amongst the rubbish. This tory Government has set out to cripple completely the employees’ organizations. It has set out to deprive them of their finances and their assets. Finally, it has sought to deregister them and put them legally out of existence. Since the introduction into Australia of compulsory arbitration, organizations have not been able to negotiate with, an employer unless those organizations have been registered.
Not only has the Industrial Court the right to inflict penalties on unions, but it may also say who shall be members of a particular organization and who shall not be members of that organization. It has the right to say how an organization’s rules shall be framed. The Arbitration Court, when exercising similar jurisdiction, told organizations that had been fined for a breach of an order or an award that they must discipline their members. It also told those organizations that if their rules were not sufficiently wide to allow their members to be disciplined, they must take steps to frame rules that would allow disciplinary action to be taken against their members. What would be the result of such action on the part of an organization? If an organization were to take disciplinary action against its members, in a very short time it would not have any members. It would then go out of existence. The Industrial Court, in addition to the powers I have already referred to, may tell a union what rules it shall adopt. By the application of the compulsory ballot legislation, it may also say who shall be officers of an organization.
All in all it would be better for Australia if this extra judge were not appointed to the Industrial Court. Australia would bc better served if this court went out of existence, allowing the unions and the employers to confer. Conciliation between employer and employee would be far better than the sniping that takes place to-day. At present the employers take action in the court, the workers object to that action and an impasse is reached. That is not good for the country or for the people generally. The Government should cease allowing employers to use machinery that was never intended to be used for the suppression of the workers. I condemn the Government for bringing down legislation to create a servile state.
.- I support the principle of more appointments to the arbitration system and, therefore, I support this bill to appoint an extra judge to the Commonwealth Industrial Court. A number of trade unions, including some of the biggest, are affiliated with the Australian Democratic Labour Party in Victoria. When the federal conference of the party was held in Canberra last year, the union delegates to that conference brought forward a recommendation in which they said that additional appointments within the arbitration and conciliation system were needed so that, for example, early relief could be given in marginal and other claims of public servants, white-collar workers, bank officers and workers generally, some of whom, it was claimed, had been before the court for eighteen months or two years without their cases being heard. I am talking about the system generally - not just this particular court. I merely point .out that delays within the arbitration and conciliation system should be avoided. We should get rid of excessive legalism. Anything that will streamline the proceedings of the court and give organizations easier and more ready access to decisions is advantageous. For that reason I support this hill. I think that the arbitration system, if properly adminis tered, promotes a greater degree of industrial harmony and makes for justice for the working people generally.
Everybody must admit that the arbitration system has been of real benefit to workers. I was rather surprised to hear Senator Cant say that it would be better to get rid of the Industrial Court and allow the parties to a dispute to get together. I have not heard that idea expressed as the policy of his party, nor have I heard that it is the policy of the organized trade union movement of Australia. I believe that the arbitration system generally has been responsible for big advances in the wages and conditions of Australian workers. I always remember my father, who was an old-time unionist, telling me of the pleasure he felt when arbitration was introduced. He worked for a firm which was supposed to release him from his duties on a Saturday at 1 o’clock, but he was frequently given duties that kept him at work until 3 or 4 o’clock, without any overtime payment. I can remember how pleased he and his fellow workers were when an arbitration award eventually provided that they had to be paid overtime.
The arbitration system has also been largely responsible for the strength of unionism in this country. We have the highest average of union membership in the world to-day, if you leave out the Soviet Union, which claims to have a higher average. However, anybody who has studied their unions realizes that they are governmental production committees rather than trade unions in the sense that we know them. The arbitration system has been a help to the union official. He has been able to get people to join the union in many instances by saying, “ If you join the union you will have access to the Arbitration Court and we can improve your conditions “.
The arbitration system has also done another good thing. It has promoted federal unionism. Without the arbitration system I do not think we would have had the big advance in federal unionism that has taken place in this country. The Australian Council of Trade Unions at its conferences has affirmed its support of the principles of arbitration. The council has raised objections sometimes to procedures which it has felt could be improved and it has objected to particular individuals who administer the arbitration system; but in general it has supported arbitration, just as the Australian Labour Party, and the party to which I belong, have supported it.
In recent years an attack has been made upon arbitration. It has come largely from unions which call themselves militant. I will not call all of those unions Communist, because some of them are not. But in most cases you will find that the unions which attack arbitration most fiercely have a powerful Communist influence in them. They call for direct negotiation. Many people say that direct negotiation has a lot to recommend it. British trade unionists have said to me that they would not have our arbitration system, that they prefer the direct negotiation system. American trade unionists have said the same thing to me. However, you will find that meetings of trade union officials, such as the Australian Council of Trade Unions, adopt a different attitude. I refer to the biennial conferences where policy is made, and not to the meetings of the 68 unions to which Senator Cant referred. If, at these big policy-making conferences - where decisions count - a motion is moved to break with arbitration in favour of direct negotiation, they will talk of the unevenness of arbitration and its being unsatisfactory in certain aspects, but when you pin them down to a decision, they make it clear they want arbitration. I think, therefore, that we have to accept the situation that the unions in Australia want the arbitration system. That being so, there is something to be said for Senator Wright’s statement that if they are going to accept the benefits then they have to accept the responsibilities.
In considering the subject of direct negotiation you have to realize that it may work out all right at a time like the present when there is plenty of money about and when employers say, in effect, “ Give it to them, we can add it on to the price “. But I should like to know how direct negotiation would work in times of depression when thousands of men are out of work, when the boss has the whip-hand and knows that he can offer what he likes. Under a system of direct negotiation the unions would have to take it. I know many unionists who went through a depression. They remember how they were treated by the employers of the day. Big queues of unemployed put the boss in the position where he could say, “ You can take it or leave it “. Unionists who went through the depression, even allowing for the cuts they got from the Arbitration Court, which they bitterly resented, do not want direct negotiation because they are afraid of what will happen in a period of depression. It must also be remembered that even in Great Britain, where a direct negotiation system is in operation, they still have compulsory arbitration in the case of weak organizations and weak trade unions. What does that imply? It implies that where a union has little industrial strength it cannot negotiate directly with e.n employer on a basis of justice. In the case of an organization which is very weak industrially in Great Britain, they provide for arbitration because they feel it is the only way in which a weak organization can get justice.
Even if one were to agree with direct negotiation, I must consider the point that for direct negotiation to succeed both sides must go into the discussions with honest motives. In such a system the great bulk of unionists would have to be satisfied that their representatives would go into discussions with honest intentions, desiring to do the best for their members and the best for the country. But you have to remember that some of the most powerful industrial unions to-day are in the hands of secretaries and officials who have Communist membership or Communist affiliations. In the case of those men when they go into a discussion on an industrial matter, they carry with them instructions that they must place first in their considerations, not the welfare of their members, but the political policies of the Communist Party. To any one who denies that, I say it would surprise me if any Communist went into any industrial discussion without being briefed beforehand by the industrial organizer of the Communist Party as to what attitude he should adopt. I would say further that the average Communist attends these discussions involving big industrial disputes with instructions as to exactly what he has te do.
Is any one game enough to suggest that the waterside workers did not recently take a stand against Sunday work because Mr. J. J. Brown, of the Victorian Railways
Union, was in a jam over his particular strike and Healy was told by the party that he should cause a stoppage of work on Sundays on the wharfs in order to help Brown? The dogs are barking around the Melbourne Trades Hall that Healy, after he deprived his members of valuable work on Sundays, because they get extra payment for it, is now in a spot, and wants to get out of the strike. Every one knows that he approached Mr. Monk, that Mr. Monk approached the head of the Department of Labour and National Service and that now an effort is being made to give Jim Healy some ice to slide on in order to get out of the dispute. If any one says that the strike is genuine I ask him to look at what happened one week-end recently. We had Jim Healy, of the Waterside Workers Federation, saying that they should not be compelled to work on Sunday. Leading Communists, noted for their atheist views, quoted the Bible to impress on us that men had the right to stay away from work on Sunday. On the very day that Those members of the Communist officialdom in that union were saying that they had the right to a day off cn Sunday, J. J. Brown, in whose behalf they were out on strike, blackguarded the Victorian Government for not making his men work on Sunday. He said, “ We want them to work on Sunday. We are prepared to work on Sunday. The Government is acting in a disgraceful way by not letting our members work on Sunday. “ There we had two men conducting a simultaneous strike, each helping the other, one saying that it was wrong to make his members work on Sunday, and the other imploring the government to let them work on Sunday.
The phoney nature of the strike was shown in this way: Brown said that his men ought to be allowed to work 96 hours a fortnight. At the same time, he called on the motor transport workers not to man the buses, which meant that some of them would not get even 80 hours a fortnight. The railway men were asking the motor transport workers to help them by working 80 hours or less, but when a motion was moved that the railway men should say that they would not work for more than 80 hours a fortnight, Brown vehemently opposed the suggestion. In other words, his men, on strike, were to be permitted to work for 96 hours, but the motor transport workers, who were acting only in sympathy, were to work for 80- hours or less. I should say that that was industrial comradeship of the highest order. I regard what is happening in that instance as phoney. If the true and dinkum industrial leaders in Victoria are asked about the matter, they will tell you that they recognize that it is phoney.
I believe that the trade union movement wants arbitration. That is proved by the decisions at policy-making conferences. I know that there are serious faults in the system - faults which the movement would like to have remedied - but the proper thing, to do is to advocate remedial action, not abolition. After all, in 1929 the Labour Party won a great election on the stand that it would be bad for the workers if arbitration were abolished.
– We are an arbitration party.
– That is so, but what is going to happen? Does the Labour’ Party, in the next general election campaign, intend to advocate the abolition of arbitration and the introduction of direct negotiation? I think that that is a question that ought to be answered.
– If wages are fixed and1 prices continue to rise, something will have to be done.
– 1 agree that something will have to be done, but is it a good thing to take a leap in the dark?
– The trade unioniststraditionally have had to protect their own interests. They have never been given anything.
– Yes, I know, but I should say that their opinion, for nearly 50 years, has been that arbitration is the way to protect their interests. Until the Australian Council of Trade Unions, at a policy-making conference - not at a meeting of 68 unions - decides otherwise, the thing to do, to my way of thinking, is tosay, “ We will try to improve the system. We are not out to abolish it.”
Many attacks are made on the arbitrationsystem from certain directions. We are told that the ballot legislation is destroying: some of the noblest things in trade unionism to-day. The first ballot legislation was introduced by the Chifley Government, and later legislation by the Menzies Government. I have asked for the figures relating to the number of cases in which ballots have been conducted by the court over a period of ten years. It is interesting to note that there were 57 such cases. In 36 cases, the unions themselves had asked that that should be done. If the system is so terrible, it is amazing that there should have been so many applications by union committees for the court to run their ballots. Running down the list supplied to me, 1 find that the unions mentioned include those of the postal workers, the carpenters and joiners, railway workers, foremen stevedores, clothing trades workers, clerks, and ironworkers. If it is considered that court-controlled ballots represent an attack on trade unionism, why have two out of three unions, in the 57 ballots that have been conducted during the last ten years, asked for the court to function in that way?
Much has been said about the penal clauses of the legislation, and a great deal has been made of the fines that have been imposed of late. I suggest to honorable senators that they look at the list of unions which have been fined under the penal clauses. It is a very interesting list. One finds that, from 1950 to 1958, there were 26 cases of fines having been imposed, and that those cases applied to about ten unions, of a total of between 90 and 100. If we look at the unions that were in trouble, we see that the main ones were the Amalgamated Engineering Union, the Ironworkers Union, the Boilermakers Union, and the Sheet Metal Workers Union. Those were the only ones that were fined more than once. It is interesting to note, too, that for either all or part of the time, they were under Communist control.
– And also, they are the unions in heavy industries.
– That is so. Generally speaking, heavy industries have a greater volume of industrial trouble than have others. The point I am making is that 90 per cent, of the trade unions in Australia have never been fined or penalized. Why is that? I should say it is because they have efficient, sensible leaders who are able to put their case in a strong and determined way, but without putting themselves in the position where they become subject to the penal provisions.
After all, Labour governments are among the governments that have legislated to insert penal provisions in the law. Penal provisions were in the law that was passed in 1947, when, I think, Dr. Evatt was AttorneyGeneral. They were not left out of the act then. I spoke to some leading members of the party at the time - political figures - and said to them, “ You know, there has been in our policy a kind of clause against this sort of thing,” and they said, “ That is so, but you have to leave the provisions there, because if you become the government you might have to use them “.
Labour governments had to take penal action against trade unions, and I supported the action that they took. The Labour Government could not have taken any other action in 1949, unless it was prepared to abdicate. Whatever else may be said. 90 per cent, of the trade union leaders of this country - and I refer mainly to those who are Labour men - have never come within the penal provisions of the arbitration act, and never will. With few exceptions, those unions that have incurred penalties under the act have been unions in which there has been Communist influence, or whose leaders have lacked the kind of restraint that the sound union leader is able to show. I am sorry that Senator Cant mentioned the de-registration of the Building Workers Industrial Union as a case of injustice. He said that, as a result, the union formed in Victoria was a bogus one. He referred to the Carpenters and Joiners Amalgamated Society of Australia. The society is affiliated with the Sydney Trades and Labour Council. It is affiliated with the Tasmanian Trades and Labour Council, and the secretary of that council, Senator Poke, is a member of this Senate. It is a pretty serious charge to say that two such councils in this country have affiliated a bogus organization. The society was also affiliated in Victoria until, for political reasons as a result of the split, it was suspended. But let me ask this: Was ever a union de-registered for better reasons than existed in the case of the B.W.I.U.?
I told in the Senate recently how the Chifley Labour Government was forced to pass two acts of Parliament, one in relation to clean ballots, and one to prevent victimization of trade unionists because of the activities of the B.W.I.U. Not only was that union de-registered by the Arbitration Court but also it was disaffiliated by the Australian Labour Party and suspended by the Melbourne Trades Hall Council, and that is a pretty decent trio in any company. Every organization with which that union was affiliated wiped it out. I remember when an official of the union offered £100 to the Australian Labour Party’s election fund and the money was handed back to the union with the statement that the Australian Labour Party did not regard the B.W.I.U. as a trade union at all.
I was present at a meeting in Melbourne Trades Hall at which men in the B.W.I.U. asked the late Reg Broadby and other union leaders what they could do to get a decent ballot in the union, when every ballot was rigged, ballot papers were forged, and bogus postal votes were put in. I remember a leader of the Victorian trade union movement saying to those men, “ We do not know what you can do.” They asked the secretary of the union to go before the Melbourne Trades Hall Council so that it might examine his bogus ballots, and he refused to appear. These men took the matter to the Supreme Court, which said that there was no law in Australia to stop a crooked union ballot.
When the Arbitration Court de-registered the B.W.I.U. for shameful industrial conduct, it did only what had previously been done by both the political and industrial wings of the Labour movement in our State. I can appreciate the difficulties which some unions meet, including the delays in getting to the court, which are very serious in the cases of the white-collar workers, bank officers and others, and serious in the case of all workers. But those things can be remedied. As a principle, we have accepted arbitration in this country, and I cannot find any decision of the official trade union movement rejecting it. The penal provisions were enacted by Labour governments, retained by Labour governments, and used by Labour governments in the same way as they have been used by other governments. I say that the great bulk of trade unions never come under the penal provisions, because their Labour leaders know how to conduct their affairs efficiently and properly. I believe that the great bulk of the attack on the penal provisions conies from people who have other ends in view. They want to destroy arbitration, to get rid of clean ballots, and to be enabled to victimize trade unionists as they did in the past and indulge in industrial anarchy.
I shall conclude by citing what happened at the last congress of the Australian Council of Trade Unions. Certain union delegates moved for the inclusion in the resolution on arbitration of a provision that the next time the penal clauses were used against either trade unions or officials the matter should be reported to the A.C.T.U. or the appropriate State branch for immediate action. In opposing the amendment, delegate Evans, vice-president of the A.C.T.U. and federal secretary of the Federated Engine Drivers and Firemen’s Association, a man who is very commonsense in his outlook on Australian trade union affairs, said that the words “ immediate action “ were wide and undefined and that it was obvious that the intention of the Communist Party was to try to use the trade union movement’s natural opposition to penal clauses as a vehicle for furthering its policy of destroying the whole arbitration system.
I support the arbitration system. I believe that any political party that went to the country to-day having in its policy the destruction of the arbitration system and its replacement by direct negotiation would commit political suicide. I believe in looking facts in the face. I shall always support any action to improve and streamline the arbitration system to enable it to give better satisfaction to the workers. But I do not think that anybody ought to be stampeded by an obvious campaign, triggered off by the Communist Party, to try to get us to replace a system, which at least does give something of a rule of law, with a system of industrial anarchy.
.- As announced by the Leader of the Opposition (Senator McKenna), we are not opposing this bill. But I am rather surprised that Government supporters, with one exception, have not risen in their places to advise the Senate of the reasons why this bill should become law or to reply to the challenge that was issued by Senator Cant. I was very interested in the remarks of Senator McManus. I could see that Government supporters appeared to find a great deal of enjoyment in hearing of the alleged misdeeds of the trade union movement and that they relished his speech very much indeed. That speech fortified me in some of the doubts that make me apprehensive about this measure.
We have some differences of opinion as to the wisdom of making the proposed appointment. Ostensibly we are considering the filling of a position on the Industrial Court, the functions of which are primarily conciliation and arbitration. One would expect that the Government, when desiring to fill such a position, would at least give some indication that the person to be appointed would be one who understood something about conciliation and arbitration. But we are told that it is necessary to make this appointment because Mr. Justice Simpson is to retire from the bench of the Supreme Court of the Australian Capital Territory. The jurisdiction of that court has never extended to the field of arbitration. It is concerned with a different field of law altogether. We are told that somebody who is to officiate in this very important jurisdiction of conciliation and arbitration will come along to Canberra to deal with all sorts of crimes against the various laws of the Commonwealth. He may be dealing with murder, manslaughter, larceny or any other crime. This raises a doubt as to whether the person to be appointed will be the right man to fill this important job. That leads me to the point that it was clear from his speech that Senator McManus is not au fait with all details connected with the trade union movement, nor is he familiar with the reasons which prompted the workers to refuse to sell their labour under certain conditions. He did refer effectively to the field of arbitration, but I point out to him that we of the Labour Party are arbitrationists of the old school. We believe that arbitration has been of inestimable value to the weak unions which, because of their lack of industrial strength, were unable to demand from the employers an adequate reward for their labour. We know that it is amongst that section of the community that arbitration will last longest. We have never believed that arbitration would be the panacea for all the ills of the industrial movement, because this is a field in which only one party to the argument is required to run the gauntlet of having his requirements determined by a measuring stick. Right through history, the worker has been handed the minimum possible amount necessary to enable him to obtain food, clothing and shelter of the lowest standard. Never since the inception of arbitration has the employer been required to submit to investigation and interrogation concerning the rate of dividend that should be paid by his company, or the standard of living that he should enjoy. The worker has received the short end of the stick right through the piece. We have always appreciated, of course, that there are certain periods when there are more workers than jobs, and that, therefore, it was necessary to introduce arbitration. First of all, we had the wages board system. That was an excellent system of arbitration under which employers and employees, the men engaged in the industry, sat around a table and conferred under an independent chairman, usually a man who, because of his association with many industries, had a good knowledge of industrial affairs. Good decisions were arrived at under that system.
Later, with the development of our industries, it was felt necessary to obtain an award to govern conditions in the Commonwealth field. Up to that time, award conditions varied in similar industries as between State and State. In order to obtain some uniformity, the federal system of arbitration came into existence, and it was satisfactory for a time. In the beginning, wages were adjusted periodically to meet increases in the cost of living. The position has changed entirely since this Government attained office. We now find that the whole system of conciliation and arbitration has been completely destroyed. To-day, the practice is to use the big stick, to impose penalties for disobeying the award. No longer has the worker the right to say at what price or under what conditions he shall work. Under the present system, he is compelled to accept what is laid down by the court. The employer, however, is in a different position. To-day, the employer of labour, the manufacturer and the shipowner willy-nilly demand from those who require their goods or services increased payment for those goods or services. No penalty is inflicted upon them. The worker is the man who suffers all the time.
Reference has been made to Sunday work. Senator McManus has stated that some members of the Communist Party, despite the fact that they are atheists, have admitted that the workers have a right to a holiday on Sunday. I am not an atheist, and I say the worker has that right. Until a recent decision by the very court to which we are appointing another judge, the workers in industry enjoyed that right. I was associated with the railways for a number of years. That is an industry in which work is done on Sundays, but our union recognized that Sunday trains were essential and we provided in our awards for Sunday work. At the same time, I emphasize that the railways regulations always contained a conscience clause which provided that if a man did not want to work on Sunday he could not be compelled to do so. Further, it was provided in our awards that no man should be required to work on more than two consecutive Sundays. The railways administration has always honoured that provision. A man always knew that if he worked on one Sunday he would not be required to work on the following Sunday unless exceptional circumstances made it necessary. I have worked on Sunday, but only after being given the opportunity to refuse. Whenever rosters were being made up, the men were asked, “ Do you mind working on Sunday? “ I. was always asked, “ Do you mind working next Sunday, Jim? “ I had the right to say, “ J am sorry, but I shall be doing something else “. I had the right to refuse to work. As a result of a recent interpretation given by the court to which it is now proposed to appoint another judge, a man, whether he be a Christian or an atheist, has no right to refuse to work on a Sunday. According to a decision issued by this court only a few weeks ago, there may now be inserted in awards a provision that Sunday work shall be done, and if a man refuses to work on Sunday his union becomes liable to a fine of £500.
Take the present position in the railways. There will be no trains running next weekend because, for the last twelve months, the railway employees have been endeavouring to obtain what is known as an industry allowance. All through the piece, the Railway Commissioner and the Government have said that they will pay only the mini mum award rate and all railwaymen, whether they be tradesmen engaged in the workshops or train running crews, must accept that minimum rate of pay. What is happening in the railway workshops? For years people have refused to work there, and only those who are entitled to superannuation on retirement, or to long service leave, are staying in their jobs. The railways cannot get men to work there because of the better conditions offering outside. Outside employers are paying rates over the award.
What is happening with the train-running staff? Good gracious, in my day if I got a young fellow into the railways 1 was looked upon as a friend of the family for life! lt was most difficult to get into the railways, because there were plenty of applicants for employment. To-day the Government cannot run the railways unless overtime is worked. Scores and scores of men leave their jobs within the first twelve months of employment. If I was an organizer for the railways union to-day I would almost have to be an expert linguist in order to talk with the men who are now employed. A few years ago it was the ambition of every father and mother to get their boys into the railway service, because it meant continuity of employment for life.
– It meant security!
– Yes, it meant security until they were 60 or 65 years of age, and a pension after that time under the superannuation scheme. It meant halffare vouchers and all those advantages that we see in the advertisements to-day. But people now will not take on jobs in this undertaking, and the commissioners admit that they cannot run the railways unless the men work overtime.
I suggest that we have another look at this problem. There has been some talk about Communist control of the railways union, but what about the arbitration proceedings in which the railwaymen in Victoria have been double-crossed? It is no use blaming Brown, because it is the Trades Hall Council that is involved in this dispute. All the unions are concerned in this activity. On the industrial disputes committee that is conducting this fight are represented unions the delegates of which are members of Senator McManus’s political party, the
Democratic Labour Party. Those who come from the Communist unions, if you like to term them such, are in the minority. This disputes committee has decided that the fight must continue. Why? As I said, twelve months ago the railwaymen tried to get the industry allowance. This allowance is paid by our own Commonwealth Railways. It is paid by the Melbourne and Metropolitan Board of Works and the Metropolitan Tramways Trust in Victoria. A number of other semi-government undertakings are also paying this industry allowance. It is no new thing in government employment. It is offered in order to get people to accept jobs. The unions tried to get this allowance for its members.
– By peaceful means?
– By peaceful means. They approached the commissioner, who said, “ I cannot grant you this allowance, but, while I am in the process of turning down your application, I will order you into conference. Do not mistake what I am doing; I want you to have a real conference.” What did the Minister for Transport tell the railway boys? He said that if they went along and submitted to arbitration their claims - or certain of them, at any rate - were not likely to be opposed. But what did they find when they followed this suggestion? Were they given a walkover? Not on your life! The representatives of the Railway Commissioners opposed them most violently at every turn they took, and so no award has been granted to them. Do you blame them for fighting in these circumstances? Do you blame men for saying, “ We are not going to work overtime? “ Let us be fair to the railwaymen.
– What authority withheld the industry allowance from the railwaymen?
– The authority was a commissioner of the Commonwealth Arbitration Commission, who asked them to hold a conference. He said he wanted a real conference, and they had the promise of the Minister for Transport that their claims would not be opposed, or at least that certain portions of them would not be opposed. But this promise was never kept.
The men offered to run the trains, but the Premier of Victoria said, “ I am not going to accept your offer unless you with draw your objection to overtime “. It has always been an accepted principle in the industrial movement and the political sphere’ - as I am sure Senator McManus will agree - that a man should receive sufficient remuneration for working the prescribed weekly hours to enable him to maintain his standard of living. We have never subscribed to the proposition that men must work overtime in order to earn enough to ensure them a decent standard of living. Now we have this position: The Premier says, “ Unless you work overtime, and unless you work on Sundays, the public of Victoria will be penalized by having no rail transport at all “. The officials of the railways union have shown the commissioners and the Government that they could man the railways seven days a week with the present staff. But we have a position in which there is no give-way, and this is the sort of thing that can happen under our arbitration system.
I regret, Mr. Deputy President, that I have had to take up so much of my time in following this line, which is perhaps a little wide of the subject before the Chair, but I was stung to it by these allegations that the railways dispute is inspired by Communists. I worked with the railway men for years, and while there were no industrial upheavals it was not because we did not desire to go on strike during our regime; it was simply because economic conditions forced us to adopt a different attitude. There were too many men outside looking in in our day. To-day the men inside can look out and see greener fields, and so they go out and feed on those greener pastures. They get higher wages and better conditions, and they leave this industry which was once regarded as the Mecca of our young men.
In the few minutes remaining at my disposal let me touch on one other matter. I, in common with many others, have regretted the current rumour that the new position on the Arbitration Court bench is to be filled by a person with no experience in arbitration. We cannot help rumours being circulated. The rumour that our late leader was to move to another position in Sydney was well founded. Is the rumour that a certain judge of the New South Wales State Court is to be appointed to the new position on the Arbitration Court likely to prove just as accurate? If you want to fill this vacancy, why not appoint some one who has had experience in arbitration work? What about the judges of the Arbitration Commission who have had years of experience in making awards? If the new position is to be concerned solely with conciliation and arbitration, let us get some one with experience, rather than bring in a person who knows nothing about this job which, in view of the industrial disturbances that are taking place at present, requires the exercise of a great deal of tact and understanding of men who are selling all they have, their labour, in the highest market available to them.
– in reply - The bill we are discussing - it proposes the appointment of one more judge to the Commonwealth Industrial Court, and nothing more - has led to an interesting discussion ranging over many fields. Although those fields only touched, as it were, the core of the bill, what has been said impels me to say one or two things in reply.
Senator Cant suggested that because a court was established to interpret awards when those awards were in dispute between employers and employees, and because that court was able to impose penalties upon employers and employees, there was in the course of construction in this country a servile state. Sir, I do not think there is anything more inaccurate than the statement that to establish an instrumentality to which both sides to a dispute can go for an impartial hearing is to do something towards establishing a servile state.
Far more danger comes from actions of the kind taken by a union to which Senator Cant himself referred - the Building Workers Industrial Union - which, as the Senate has been told, was subsequently wiped by every Labour organization which had had anything to do with it. I cast my mind back to the days when that union, if I remember rightly - and I think I do - dealt with one of its members, a man called Miller, who had the temerity to ask for a balance-sheet to be presented at a meeting of the union so that the members could see what the position was and what was happening to the funds. Because he did that, Sir, he was expelled from the union, which followed him with the most violent hatred throughout Australia and tried to prevent him from getting a job wherever he went. The union went to the length of writing to a Cabinet Minister in the then Labour Government, asking that Miller be thrown out of a job he had managed to get in Canberra. That union did1 that sort of thing to one of its members.
– Who told you that?
– I have seen the letters. If you go back through “ Hansard “, you will see that copies of them were produced by me during debates in this chamber. If it is made impossible, through rigged ballots, for the junta running a union of that kind to be changed, surely that is something which is far more likely, if it spreads, to lead to a servile state in Australia and to the grinding down of the ordinary unionists and citizens than is the establishment of courts to which both sides to a dispute can go.
– What do they get?
– What does who get?
– The sides who go to the court.
– I am asked what happens when people go to a court. If I can refresh the mind of the honorable senator opposite, what they get almost invariably is an increase in margins, such as that which was just recently granted, or an increase in the basic wage, such as was granted shortly before the margins increase - within months of that increase. Probably the purpose of the interjection was to imply that every time a union approaches a court it does not get what it asks for. That is a reasonable thing, in my opinion. A court must, and does, take into consideration the facts that are put before it, not only by the employers, but also by the industrial advocates of the unions themselves, who have a right to question employers and to adduce evidence to show what the state of an industry is and what wage can be afforded.
The point I wish to make, Sir, is that if ever we had in this country big unions controlled by people who could not be put out of their positions, because of rigged ballots, we would be in a very dangerous position. We got very close to that at one time - so close that those who now form the Opposition had to take some timid and ineffective steps to get away from it, and so close that those who now form the Government had to take an effective step to allow unionists to ask a court to conduct a fair ballot. If members of unions went in fear of vicious actions being taken against them, as did Miller and others whom I could mention, we should be in a dangerous situation.
– What about the waterside workers?
– The honorable senator directs my attention to the waterside workers. It could be, indeed, quite possible for friends and relatives of a unionist whom the governing junta did not like to be run down by motor cars or attacked in other ways. That could lead to a servile state more quickly than anything else.
Getting away from the fringes of this bill, I move along to the questions that were asked by the Leader of the Opposition (Senator McKenna). According to my information, it is not certain that the constitutional reasons advanced by him are valid, though it very well may be that they are valid. In a case which he may care to look up - Lamshed v. Lake, heard before the High Court in 1958 - there was an indication that the Supreme Court of the Australian Capital Territory could be regarded as a federal court, but the matter is not firm either way. In any case - and this is the main immediate reason for the statement in the second-reading speech - as the law stands, leaving aside the constitutional position, which is not clear, at least two other acts would have to be amended to enable a member of the Supreme Court to act in the Industrial Court. Section 8a. of the Australian Capital Territory Supreme Court Act would have to be amended, and so also would the Conciliation and Arbitration Act.
Sir, I think there is little more to say on the real purpose of this bill, which is to appoint one more judge. It is not the intention of the Government at the moment to have this court sitting in two divisions - that was the question that Senator McKenna asked me - and it is not the intention of the Government at the moment to fill the place of Mr. Justice Simpson. I know, as Senator Sheehan pointed out, that rumours have been circulating about the appointment of certain persons to the vacancy on the court. Nobody can do anything about rumours. Very often they are incorrect. The rumours about the appointment of the present Chief Justice of New South Wales turned out to be right, but that may well have been because so many people in this place were trying to ensure that they did turn out to be right.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Sitting suspended from 5.57 to 8 p.m.
Debate resumed from 5th May (vide page 770), on motion by Senator Paltridge -
That the bill be now read a second time.
– The bill before the Senate proposes to amend the Air Navigation Act 1920-1950. The amendments are of very great importance and affect virtually every aspect of the safety and efficiency of civil aviation and air navigation in Australia. The bill does a very important thing. For the first time it enables the Parliament to exercise surveillance over this type of legislation. The present act was framed to give effect to the Chicago convention of 1944. Power was given under that act to make regulations affecting air navigation and civil aviation. Over the years those regulations have reached voluminous proportions. Some 300 regulations pertaining to different aspects of air navigation and civil aviation are now in existence. The purpose of this bill is to bring those regulations under the scope of a new act to be known as the Air Navigation Act 1920-1960.
Perhaps at the outset it might be interesting to trace the development of civil aviation in this nation. After all, it is only 40 years since the famous flight from England to Australia by Sir Ross Smith and Sir Keith Smith in 1920. It is interesting to note that the route that was planned for their flight to Australia is similar to that known as the Kangaroo Route to-day, which is being followed by our own Qantas airline. It is also very interesting to realize that Sir Hudson Fysh, who was responsible for arrangements being made in the Northern Territory for that leg of the epic flight, should later, through his experience gained at that time, form the Queensland and Northern Territory Aerial Services, which later became known as Qantas. The little seed that was sown at that time by Sir Hudson Fysh has now grown into a round-the-world service using jet aircraft valued at £40,000,000, which are making regular visits to 28 countries.
It is interesting also to trace the history of the legislation that is now before the Senate. In 1919, at the time of the Paris convention, the first form of international aviation legislation was agreed upon. Following that convention regulations were first formed to deal with civil aviation in Australia. Of course, as aviation was in its infancy at the time of federation it is not surprising that there was no direct reference to air navigation or civil aviation in the Commonwealth Constitution which set out the powers of the Commonwealth Parliament. The first Commonwealth act applying to civil aviation was the act of 1920 which authorized regulations to give effect to the Paris convention. In 1944, a conference was called in Chicago by the United States of America. That nation was not a member of the convention on air navigation in 1919 that was held at Paris. At that time a number of countries had become parties to the Paris convention, but the United States of America took the initiative in convening an international aviation conference which was attended by some 52 States. The inspiration for that conference came from that immortal statesman, Franklin D. Roosevelt, the United States President. He issued the preamble to the Chicago convention which was called the International Civil Aviation Organization and became known in short as I.C.A.O. I should like to read to the Senate the honorable ideals and principles that were enunciated in that preamble. It stated -
Whereas the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and
Whereas it is desirable to avoid friction and to promote that co-operation between nations and peoples upon which the peace of the world depends;
Therefore, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated safely and economically;
Have accordingly concluded this Convention to that end.
The bill before us is framed along the lines of the Chicago convention. During the period since that convention we have seen tremendous development in civil aviation in all parts of the world.
The need to have some co-ordination of the civil aviation industry in Australia was seen at various times, particularly at the time of the referendum when the government of the day sought power to write into the Constitution powers over civil aviation. However, political issues crept into that referendum. Civil aviation is a matter into which politics should not enter, but unfortunately the Commonwealth was denied the power to deal with civil aviation. Since that time the Commonwealth has had to obtain its power under different heads. The external affairs power of the Commonwealth gives it authority to organize international airlines and international conventions, enables it to attend conferences and commit the Commonwealth to honour and implement the terms of conventions. Then, of course, the Commonwealth has power to legislate in its Territories, and it has power to acquire sites for aerodromes.
A very important stage was reached when the States at an historical meeting decided to co-operate with the Commonwealth and to transfer power to it to operate an airline and control air navigation and civil aviation generally throughout Australia. That conference took place in 1937, and all States agreed to adopt Commonwealth regulations covering intra-state trade. It was agreed that the collection of fees and other aspects of administration should be vested in the Commonwealth.
I have mentioned that the period of 40 years during which civil aviation has been developing in this country has been most exciting. In that time, we have seen our civil airlines progress to the extent that last year they carried 2,500,000 passengers. I think that that record, on a population basis, would be equal to that of any other country in the world. Since 1954, under the administration of regulations by the Department of Civil Aviation, we have seen our domestic airlines carry 14,000,000 passengers without a single fatality. We have also seen our civil airlines achieve a utilization factor that is unequalled anywhere else in the world.
The installation of flight navigation aids has proceeded apace, and Australia has kept abreast of all the latest developments. Our systems of air traffic control, communications and radio navigation aids have provided a nation-wide coverage which has contributed to the wonderful achievement in carrying 14,000,000 passengers since 1954 without a single fatality. We must pay tribute to our pilots, airmen and aviation technicians, who are most sought after in international aviation circles. There is an air-mindedness in Australia. I suppose that we can claim to be the most air-minded people in the world. We have great reason to be thankful to the pioneers of our aviation industry. In that respect, many well-known names come to mind, such as those of Lawrence Hargreaves, Sir Ross and Sir Keith Smith, Ray Parer, Sir Charles Kingsford-Smith, Bert Hinkler, Charles Ulm, Gordon Taylor, Scotty Allen, Harry Hawker, Doctor John Flynn and Nancy Bird - all great pioneers of civil aviation in this country.
– We should not forget the Owen brothers and Bobby Gibbes.
– Yes, they too were pioneers. I must not forget to mention an old friend of mine, Charles Matheson, a Royal Flying Corps pilot of World War I. who taught me to fly in 1939.
The great developments that have occurred in aviation can perhaps be exemplified by making a few comparisons between the aircraft that those pioneers used and the aircraft that are used to-day. The old Vickers-Vimy which Sir Ross and Keith Smith flew out from England had an overall weight of 13,000 lb., whereas the big aircraft operating on the same route to-day have an overall weight of 250,000 lb. The horse-power of that old aircraft was 720, and it had a margin of 20 miles an hour between take-off speed and stalling speed. The present mighty airliners have 20,000 horse-power. That old aircraft was capable of carrying only 868 gallons of fuel, whereas to-day aircraft can carry 14,500 gallons. The range of aircraft has been increased from 1,000 miles to more than 4,000 miles.
I am pointing out these matters, Sir, to show that during the development of aviation the factors that make for safety, accuracy and efficiency have not been neglected. The old aircraft, even those that I flew myself, were equipped with an airspeed indicator, an altimeter, a compass and rather sketchy maps. There were very few meteorological aids in those days. Long distance flying had to be done in an open cockpit. To-day, we have radar. There are pressurized aircraft, with pressure altimeters and gyro-compass stabilizers to reduce turning and acceleration errors. The longrange radio navigational aid, or Loran, has been of tremendous advantage. There is a short-distance aid equipment to give an aircraft’s precise position in its flight route; there is weather warning radar to detect bad weather and enable aircraft to avoid it. Yesterday, the Minister for Civil Aviation (Senator Paltridge) referred to clear air turbulence. Weather warning radar is becoming a great boon in aviation in other parts of the world where thermal currents and such atmospheric conditions are to be found, and which may develop into cyclones or tornadoes. Those conditions can be detected by means of this excellent radar equipment.
The aircraft pilot also has been protected, inasmuch as his aircraft instrument panel includes omni-directional radio ranges and beacons, radar distance measuring equipment, and ground controlled approach radar, while radio communications on very high frequency circuits give him contact with a network of air control stations. There is also the instrument landing system. Let us compare modern aerodrome facilities with those that existed in the past. In the old days, pilots of aircraft had to do the best they could, and sometimes were obliged to land on racecourses or showgrounds, in paddocks or on beaches, but to-day modern aircraft take off from magnificent concrete and hard-paved runways that are up to a mile long, and which cost millions of pounds to construct. The aerodromes are equipped with every modern lighting device for night operations. Another comparison may be made in regard to fuelling methods. In the old days, a four-gallon tin of petrol was carried to the aircraft and the petrol poured in through a strainer. To-day the civil aviation authorities have made available at the major airports facilities that include a hydrant refuelling system which allows large aircraft to be fuelled at the rate of 1,200 gallons a minute.
In addition to the development of our aviation industry internally, there has also been an extension of the industry into the international field. The story of Qantas Empire Airways Limited is a delight to read and a source of great pride to all Australians. In 1931, Qantas had its first major task when it carried mail to Darwin. In 1935, it extended its operations to Singapore, and later carried passengers. In 1938, with the introduction of the Empire air mail scheme, Qantas reduced the time for the flight to England to nine days. In 1939, it extended its service to Karachi, and in 1945, the Lancastrian aircraft that were then a part of the Qantas fleet reduced the flight time to London to 58 hours. In 1947, we saw the inauguration of a regular service to London which had taken 28 years to become established. In 1954, SuperConstellations reduced the Australia-London time to 48 hours. In 1959, the Boeings reduced it to 32 hours and the DarwinLondon time to 28 hours. In that progress we see a picture of 40 years of development of civil aviation in Australia. lt is of the utmost importance that all aspects of civil aviation should be covered in one act to ensure maximum safety and efficiency. I commend the Government upon having consolidated air navigation regulations. The bill gives legislative approval to the Chicago Convention and ?.th:-r conventions. I have mentioned the conference of I.C.A.O. at which the ba~ic ground-work for the development of air navigation regulations was done. A very important provision of the bill requires that the Minister report annually to the Parliament. When the Executive is able to govern by regulation, the Parliament tends to be by-passed. It is the duty of all members of the Parliament to insist that they, the democratically elected representatives of the people, should have surveillance over legislative act.* Another important provision will enable an airline operator or pilot whose licence has been suspended or cancelled, to appeal either to a court or to a board of review. The board comprises men of great experience who are or have been actively engaged in the industry, and the Air Pilots’ Association has representation on it. Hitherto appeal to a board of review was the only course open when a licence was suspended or cancelled. In future there will be an alternative.
Proposed new section 2.1 deals with interference with navigational aids. This is a very important development because of the reliance that must be placed on navigational aids by pilots approaching busy, built-up airports. The bill provides that any interference that may cause a lessening of effectiveness of these aids may be dealt with by the Department of Civil Aviation. The bill provides also for compensation for people who may have to alter some equipment, machinery or gadget that interferes with navigational aids. The Minister made special reference to the establishment of I.C.A.O. at Chicago. He mentioned that the late Arthur Drakeford had been elected as its first president. I should like to associate senators on this side of the chamber with the tribute that the Minister paid to that gentleman. He was associated with transport for most of his life. He was a man of great vision who foresaw the need for co-ordination and agreement in both international and interstate aviation. Many of the developments he forecast to me years ago have come to pass. We owe him a great debt of gratitude for the sound basis upon which he put our position on the international plane.
The Department of Civil Aviation deserves the praise of the Parliament for its excellent safety record. It has drawn to it men of the highest calibre and integrity. They have been able to put the case for our country and to come to an agreement at the highest level. Great credit is due to them. It is interesting to try to envisage what lies before us. The Department of Civil Aviation faces the challenge of coping with what is to come. There is great competition in aircraft construction and design. We are on the threshold of the supersonic ase. The aircraft of to-day can carry over 100 passengers at 500 miles an hour. They represent a great achievement. So far the various, major airports, with certain modifications, have been able to handle them. Three great countries, the United Kingdom, the United States of America and the Union of Soviet Socialist Republics, are working in the highly competitive field of aircraft construction and design. lt is not beyond the realms of imagination that within the foreseeable future aircraft will travel at 2,000 miles an hour, that is, at three times the speed of sound. Some military aircraft are now flying at speeds of 1,000 miles an hour. It is reasonable to assume that within the next five years many of the technical problems associated with supersonic flights will be solved. Turbo-jet engines of current design, aided by afterburners or ram-jets, will enable speeds of 2,000 miles an hour to be reached. This will bring us to a new barrier, namely, the heat barrier. Aircraft flying at these speeds will operate at heights of from 60,000 to 80,000 feet. Flying at speeds in excess of Mach 1 at lower levels produces shock waves that come first from the nose of the aircraft and secondly from its stern, and they are of such magnitude as to inflict quite an amount of damage to property when the aircraft flies below 50,000 or 60,000 feet. We can also see changes in the habits of the passengers themselves. I should say that, for reasons of safety and health, we shall be flying with our backs towards the front part of the aircraft and strapped in seats which can be swivelled round to the angle of flight.
I should say that within the foreseeable future we shall be able to outdistance the sun in our westbound flights, and that cbe time of arrival could always be earlier than the time of departure. By that I mean that the flight to London will take less than ten hours, so that a man who has an appointment at nine o’clock in Perth would not need to get out of toed any earlier than he would if he had that appointment at nine o’clock in Melbourne. These are all things which the future holds for us when aeroplanes fly at a speed of 2,000 miles an hour.
We have before us a bill of historic importance. In it we see the breadth of mind and level of intellect associated with civil aviation. T commend the bill and hope that it will receive a speedy passage. 1 con clude by saying that we have reached a milestone in the development of civil avia-tion in this nation.
.- It was a good experience for the Senate to listen to a speech such as that which has just been delivered by Senator O’Byrne on this measure. It is most appropriate that the Opposition should have expressed its views upon a measure like this through a member of its company who rendered such distinguished service in the Air Force during the war, and who reveals an understanding of the technical matters associated with present and future aviation such as can come only from experience. I extend my own unstinted appreciation of the observations that he has made. It was particularly appropriate that he should speak in the terms in which he did, and with the imagination that he obviously entertains as to the future of this great industry, about this measure which does such great credit to the Minister for Civil Aviation, Senator Paltridge, who has introduced it.
We are very fortunate to have before us a measure propounded with that robust sense of purpose and degree of sound understanding that the Minister always brings to the measures he introduces to this chamber. I do not always express my appreciation in terms of compliment; indeed my appreciation is often sweetened by criticism, and when the bill is being dealt with in committee I wish to subject a few of its detailed provisions to discussion and, if need be, decision because I believe that is the best tribute we can pay a measure. It is of no use asking us to elevate subordinate legislation into primary legislation for passage through Parliament unless the Parliament shows that it is entitled to that consideration by the attention that it gives to the measure. I believe that was the true purpose of the Minister in elevating the regulations relating to civil aviation into the actual terms of a statute.
In Parliamentary terms, the significance of this measure can be expressed when we remind ourselves that our capital investment in this industry to date amounts to about £50,000,000, and that the annual expenditure on the industry, for which this Parliament takes responsibility for committing the people of Australia, is about £9,000,000. When we recall that it was by the skilful use of aviation that Australia has been able to overcome the difficulties of unroaded distances which were a terrific problem to our economic development, and so develop those areas in which development was particularly retarded between the I930’s and 1950’s, we appreciate that aviation represents to Australia an asset that is probably much more peculiarly important to it than to any other nation in the world.
This is a complex measure, and I take leave at the outset to remark that, in the federal system of government under which we operate its complexity obscures its merits, because of the unfortunate fact that our Constitution was framed at a time when aviation had not begun, a time when it was a mere dream. Because of this, the founders of the Constitution can be forgiven for not having expressed in the Constitution terms that would be appropriate to this industry to-day. Our only direct power in relation to aviation relates to external affairs, to the power over external services, and to the power over interstate trade and commerce. That leaves a gap wherein, within each State, there is a vacuum of federal power in relation to a subject matter which, 1 am game to assert before any one in the Commonwealth, is indivisible. State boundaries should not exist in connexion with aviation if we are to demand from aviation the maximum of efficiency, with guaranteed safety in the regulation of services. lt is for that reason that the Commonwealth Constitutional Review Committee recommended that there should be given to the Commonwealth Parliament unqualified power over aviation. But that objective has not yet been achieved. The constitutional arrangements that were made by agreement with the various States, insofar as they derive from State Parliamentary power, give to the Department of Civil Aviation, which has always discharged its grave responsibility in superlative fashion, power only to make regulations under the Air Navigation Act. Therefore, it is prudent that we should continue, so far as is necessary, to promulgate legislation calculated to make for uniformity and undiversified by any distinctions as to either interstate or intra-state trade.
Coming to the actual terms of the measure. 1 find myself able to analyse it in four main compartments, the first of which deals with the adoption of international conventions. The second deals with important matters concerning domestic provisions. The third has to do with the continuance of regulations, and the fourth provides for an annual report by the Minister to Parliament. In the second-reading debate I want to make just one or two brief observations in relation to each of those headings.
I was indeed disturbed by Senator O’Byrne’s reminder that the Chicago convention of 1944 was inspired by Franklin Roosevelt. Senator O’Byrne read the terms of the preamble to that convention, which rather lead me to leave the company of lawyers and for the moment join the company of poets who envisaged the idea of the parliament of man and the federation of the world. Increasing are the instances in this assembly when we have to recognize that the actual regulation of our affairs stems in many cases from convention agreements made internationally on behalf of the Government, the terms of these agreements having been hammered out, I have no doubt, at these conventions by our delegates. These are not elected representatives but accredited delegates who take to those conventions great skill, and who bring home to us the best that can be arrived at in the way of international agreements. Then we, the elected parliament, really have no alternative but. to weigh the merits of accepting the majority opinion, as expressed in a particular agreement, and to accept it in final terms as expressed by the convention. I think that we suffer no loss of dignity, but rather that we accept a tribute to our development of the parliamentary system by being able to join in such agreements and conventions with other affected nations to regulate such international affairs as travel by air.
Clause 5. of the measure before us is largely devoted to expressing, in terms of our legislation, the recognition that we accord, pursuant to the Chicago convention, to the rights of foreign aircraft coming to and going from our country. I pause here, Mr. Acting Deputy President, to remind the Senate that proposed new section 6. purports to give legal recognition to the International Civil Aviation Organization. I think the terms in which that provision is expressed require a little further consideration in committee. It will be noticed that we are establishing an Aeronautical Information Service. The Minister is to be responsible for that service, and its functions, as set out in proposed new section 7. (2.) are- to collect and disseminate aeronautical information and instructions relating to the safety, regularity and efficiency of air navigation, being information and instructions with respect to -
The bill then binds us to publish all that information for the benefit of the industry. ThenI come to proposed new section 1 1 , the terms of which greatly appeal to me. It provides that, subject to obtaining a licence from the Director-General of Civil Aviation in Australia - which licence,I would ask the Senate to note, may contain particular terms and is capable of suspension or revocation if one of its terms is breached, which is a matter to which we should give some consideration - . . a scheduled international air service conducted by an international airline of a country other than Australia that is a party to the Air Transit Agreement has, in respect of Australian territory, the following freedoms of the air: -
It will be seen from the proposed new sections that follow that this provision is qualified in relation to charter flights. We introduce the economic aspect and provide that charter or non-scheduled flights may be made subject to the permission of the Director-General, and ingiving such permission the Director-General is instructed to ensure that the charges to be made in respect of passengers or cargo taken on or discharged in Australian territory shall not be less than such amounts as the Director-General directs. There is, of course, an element of public safety involved in maintaining economic fares in relation to charter flights, because if haphazard flights of international aircraft are permitted at bargain rates, this would have the same dislocating effect on our regular scheduled airline operations as similar activities cause in the shipping industry. Such flights would dislocate the regular and reliable services which can be continuously carried on only if the financial return they receive sustains them. Therefore it is prudent to ensure that the casual intruder running charter flights shall not damage the services upon which we can continuously rely, namely the scheduled services regularly operating.
Before I quit this portion of the bill it is interesting to note that we have provided, in relation to these international flights, that munitions of war or implements of war shall not be carried by an aircraft in or over Australian territory, or by any Australian aircraft outside Australian territory, except with the permission in writing of the Minister and in accordance with any conditions to which the permission is expressed to be subject. Then there is a further sub-section which I think will require a little clarification in committee. In substance it prohibits the carriage of munitions of war or implements of war by aircraft taking advantage of the freedom that is granted to international civil aviation.
All these provisions, I believe, contribute towards linking Australia with the world and ensuring us freedom of international travel. They also ensure similar freedom to the airlines of other nations that have subscribed to the Chicago convention and the Air Transit Agreement. When you couple with that all that Senator O’Byrne has said so stimulatingly about the magnificence, the ingenuity and the integrity of purpose that have been displayed by those who have the responsibility of administering this industry in Australia, this is really an occasion when our country can claim credit.
I come now to other matters which are on a lower level but which, nevertheless, it is not beneath our dignity to take into account. Indeed, they demand quite firm consideration. There is a provision that gives the Minister power to take certain action concerning interference with navigational aids. Proposed new section 21 (1.) reads -
Where it appears to the Minister that any installation is or may be, either actively or passively, causing interference with radio communications to or from aircraft or with navigational aids in circumstances that are likely to endanger the safety of aircraft engaged in interstate or international air navigation . . . the Minister may authorize a notice . . .
He may direct that that interference shall cease, lt is true that that unqualified ministerial authority is followed by the acceptance of an obligation to pay compensation, although that obligation is expressed in more limited terms than 1 think is just. Nevertheless, this is a ministerial authority against which the person affected has no claim to be heard. He has no recourse to any judicial right to countervail the Minister’s opinion. I am prepared to concede the claim of civil aviation that, in the interests of safety, its communications must be immune from interference, as also must be navigational aids. But when we consider the ambit of the authority claimed and the people in various walks of life who may be affected, I think we have to consider the matter in committee very jealously and ensure that if unqualified provision is made for the Minister to direct the discontinuance of any apparatus which he thinks gives rise to interference, either actively or passively, provision shall be made for just compensation.
I pass to the next compartment of the legislation, which provides, in terms of the greatest amplitude, for a regulation-making power. If honorable senators will look at proposed new section 26, particularly at paragraphs (b) and (g) of sub-section (2.), they will see that it contains a most important and comprehensive power to make regulations in this industry. I do not contest that power in any way at all in this case, if only for the peculiar circumstances that it is due to our regulations alone that there accrues the State parliamentary authority that derives from the State agreements of 1937. In my opinion, that fact over-rides any inherent objection that one has to the continuance on a wide scale of substantive legislation by regulation. But when we come to this proposed new section, there are provisions within it which warrant, I suggest, our further scrutiny. By paragraph (a) of sub-section (2.) for instance, the Minister seeks power to prohibit - . . ihe construction of buildings or other structures, the restriction of the dimensions of buildings or other structures, and the removal in whole or in part or the marking of buildings, other structures. . . . that constitute or may constitute obstructions, hazards or potential hazards to aircraft flying in the vicinity of an aerodrome . . .
Paragraph (h) provides that the Minister may make regulations providing for com pensation. lt is doubtful whether that is expressed in sufficiently mandatory terms.
Under this head, too, the Minister has been good enough in the measure specifically to advert to matters that have caused anxiety to honorable senators on this side and, I have no doubt, to those on the other side of the chamber. I believe that Senator Vincent has expressed1 a continuing interest in getting an improved form of appeal for pilots who may be, by administrative decision, deprived of their licences and, therefore, of their livelihoods. I express my pleasure that the Minister, fulfilling the purpose that is evident throughout the measure - the purpose of promoting parliamentary responsibility - has recognized the right of a pilot whose livelihood is threatened by deprivation of a licence to go to an administrative tribunal - which has many merits, if justice accompanies its decision. The pilot may prefer an administrative tribunal, but he is also given the right to have recourse to a particular court of law - the traditional guardian of individual rights and British justice. I think the recognition of that right in the bill is a cause for great satisfaction.
The only other matter to which I wish to refer is that the Minister accepts the obligation to make an annual report to the Parliament on the operations of the department, on the administration and working of the act, and on the regulations. I can imagine that that report - if filled with the kind of information that so interests the Minister, and which he does us the credit of acknowledging that we are interested in - will serve as a continuing reminder to the Parliament of the progress of this department.
I conclude by expressing the hope that the development of the Parliament will be worthy of the aspirations of the Minister. I think we have had no more enthusiastic and purposeful representative of civil aviation in the annals of this country. In saying that, I detract not one whit from the compliment which was most appropriately paid by the Minister himself to a former Minister for Civil Aviation, the late Hon. Arthur Drakeford - a compliment which was fittingly endorsed by Senator O’Byrne. In the provisions of this measure, there is evident a recognition of the fact that the Parliament should accept its responsibilities for the development of civil aviation internationally and within the Commonwealth. I hope that the Parliament will be worthy of the trust.
– I should like to say a few words about this bill. It is too important to be allowed to pass without some comment. I join with Senator Wright in complimenting Senator O’Byrne on his most able presentation of the Opposition’s case. Safety is the most important aspect of civil aviation. Whatever else happens, safety in the air must not be sacrificed. Australia’s record of safety in the air is a wonderful one, and everybody in the community, particularly every member of the travelling public, is behind the Department of Civil Aviation in its efforts to ensure that our airlines operate with the maximum of safety. But the maintenance of safety in the air is not as simple as it would sometimes appear to be. Certain interests will always resist spending money in order to achieve safety. Certain people will always argue that particular steps to ensure safety are not absolutely essential, and that they should be allowed to go along in their normal way. That sort of thing is all right until there is an accident resulting in tragedy. But the airline operators of Australia admit that the safety of the travelling public is paramount.
However, things are sometimes different in other parts of the world. I have been reading about a gentleman in the United States - a Mr. Quesada - who is in charge of air safety. He was faced with tremendous difficulties in the United States in his efforts to enforce what he considers are proper safety regulations. A great many internal airlines in the United States have fought him consistently ever since he took over the job of organizing air safety. Efforts have been made to break down the stringent rules that have been applied to aviation in the United States. The problems facing the airlines in America are more serious than the problems here in Australia. In America to-day hundreds of aircraft are travelling at near-supersonic speeds. They are filling the skies, and it is very difficult to make sure that they are operating with maximum safety. The application of safety principles costs money, and some of the internal airlines in America are not making money. Accordingly, there has been resistance in America to Mr. Quesada, who, after all, is only doing his job at the direction of the government in order to make sure, as far as it lies in the power of the government, that any person who gets into an aircraft is assured that he will be safely brought to his destination.
We in this country are apt to take safety in the air for granted, but that is a compliment to the way in which the Department of Civil Aviation has carried out its work over the years. The Minister for Civil Aviation (Senator Paltridge) told us that 72 countries or states are signatories to the Chicago convention. It is unfortunate at this time, when the major powers of the world are endeavouring to reach agreement on certain important problems, that Russia is not a signatory to the convention. If Russia were a signatory to the convention, it would almost cover the earth. I imagine that the ultimate objective of the International Civil Aviation Organization is to make sure that safety regulations apply throughout the world. However, when things settle down perhaps Russia may join with the rest of the world in ratifying the Chicago convention and so increase the great work that this international organization is doing.
Senator O’Byrne endeavoured1 to look into the future, and he forecast that aircraft of to-morrow would travel at very high speeds. Of course, as the speed at which an aircraft travels increases, so the safety problems increase. Seven or eight years ago, when the Comets first appeared, they travelled at about 500 m.p.h. But for the misfortunes that overtook them the Comets would have been the forerunners of aircraft travelling at much greater speeds than those experienced to-day. The speeds that Senator O’Byrne forecast are not so far away. I suggest that the next step in civil aviation will be a speed of 1,000 m.p.h., because commercial aircraft generally follow closely the performance of military aircraft, which are already flying at speeds in excess of 1,000 m.p.h. Civilian aircraft will be flying at those speeds to-morrow.
Qantas Empire Airways has a splendid reputation for safety and service throughout the world. One of Australia’s best advertisements overseas is Qantas. That is an airline about which we hear no adverse comment. Its safety record is incredible. For 40 years Qantas has applied the simple approach that the lives of its passengers are its first responsibility. Ever since the organization commenced flying in the Northern Territory and Queensland 40 years ago it has had a remarkable history of safety. When you leave a Qantas aircraft and enter an aircraft operated by airlines in certain other countries - I do not propose to name them - your feeling of confidence disappears. It is impossible to feel as confident in other airlines as it is in Qantas. 1 think it is time the department turned its attention to certain matters. All the capital cities of Australia have been provided with the most modern aids to safety so that in fog or rain aircraft can be brought safely to the airport and safely on to the runway. All of us are aware of what happened here in Canberra yesterday and this morning - perhaps history will repeat itself to-morrow. Canberra’s airport is fast becoming one of the largest in Australia. Disregarding the capital cities of the Stales, Canberra airport would be high on the list of busy airports in Australia. It is used by members of the various diplomatic missions in this country and by members of Parliament. I do not for a moment suggest that people who travel to Canberra are any more valuable than people who travel elsewhere, but Canberra airport is a little closer to the hearts of honorable senators. As Senator O’Byrne points out, it is more valuable to him than other places. I think that is the way in which all of us approach this matter of air travel. I suggest that the department should hasten to set up at Canberra airport a direction finding beacon - Oran 1 think it is called. The department should also install a radar system so that aircraft may be brought safely on to the runway when the approach is blind. During the war years British Air Force stations used a fog dispersal system known as Fido, but I think the cost of that system was so high that after the cessation of hostilities it was discontinued. It is time, however, that Canberra’s airport was brought into line with airports in the other capital cities in Australia. Of course, you cannot stop at Canberra. You have to go on increasing facilities everywhere because it is no good establishing these facilities after an accident has happened, lt is no good closing the door after the horse has got away.
Senator O’Byrne mentioned another aspect of this matter. For a Boeing 707 to make one circle of an airport costs approximately £50. I wonder how much it cost the airline companies yesterday morning to keep planes circling’ the Canberra airport, as they did, in some cases for two hours. I wonder how much it would cost in fuel, salaries and all the rest of it. Because Canberra is particularly vulnerable to fog, being in a valley, it is one of the places we have to look at quickly. Navigation facilities have been provided at aerodromes at capital cities because they are capital cities and not because they are subject to fog; but Canberra is susceptible to fog that can occur very rapidly. The most dangerous thing is that which can happen while an aircraft is circling an airport waiting to land. I remember landing on one occasion at the London airport, and within a few hours of landing a tremendous crash occurred as a result of aircraft circling overhead. This is one of the urgent jobs that should be laid on the plate of the Department of Civil Aviation - to provide safety facilities at airports in every part of Australia. I endorse the bill.
– I cannot allow this bill to pass without saying a few words on it. I speak not only in my capacity as a senator but also as one who has been closely associated with commercial aviation, probably, I should imagine, longer than anybody else in this chamber. I take the opportunity to pay a tribute to the Minister for Civil Aviation (Senator Paltridge) who is a Western Australian senator, for his breadth of vision and imagination, and also for the practical and businesslike manner in which he has dealt with civil aviation problems. Senator Wright and also members of the Opposition have indicated that Senator Paltridge has played a most important part in the aviation industry since he has been in control of the Civil Aviation portfolio. Individually, we all have the greatest respect and regard for his administration of the department.
Civil aviation, of course, is an industry that is subject to rapid changes. That is because it is a growing industry. It started only a few years ago, comparatively speaking. Since then it has grown very quickly. 1. can well remember about 30 years ago as an alderman of the city of Mackay in Queensland pleading with the council to build an aerodrome at an expenditure of a couple of hundred pounds. In those days it was just a matter of grading the surface of the ground. It was only by one vote that we managed to secure that aerodrome. I mention that fact to show that 30 years ago aviation was something that was talked about but not thought to be of much practical value. That aerodrome in Mackay was built by merely grading the surface of the ground.
I remember also that a few years later I became associated with commercial aviation. 1 had to chase cattle off the aerodrome so planes could land, and I personally had to make telephone calls to the next city - Rockhampton to the south or Townsville to the north - to advise pilots whether the aerodrome was fit to land on after rain, or to advise the distance of visibility and the height of cloud cover. In those days information on those matters depended upon a person on the ground with no technical knowledge. Conditions have now completely changed. To-day we have in Australia the most modern and finest navigation aids to be found in any part of the world. This Government has played its part and Senator Paltridge has been responsible to a great measure in bringing about the situation we have to-day. 1 feel confident that our domestic airlines give a service unexcelled in any other country. I have gained that impression as the result of contacts I have made and consultations I have had with people from other countries who have quite openly admitted the high standard Australia has reached. Australians should be proud of that fact. We now have modern air services throughout Australia, and also our overseas Qantas air service. That development has been achieved within a relatively short period.
Just as in the past changes have been made quickly and development is taking place at a very fast rate, so in the future the rate of progress will be just as fast. As a result of experience that has been accumulated over the past 30 years or so by the Department of Civil Aviation and through international agreements, such as we are here bringing into effect by legislation, we will be able to gauge what is required to meet the fast-moving developments in aviation in the future.
This is an exciting industry because of its rapid development. It requires of people who control its various aspects minds which are quick to see new advances so that we will be always progressive and participate in advances as quickly as is possible. We really do not think sufficiently about the part that civil aviation plays in our lives. We take too much for granted. When we think how we as parliamentarians shuffle to and from our homes each week, it really is an amazing thing. I travel from Mackay in Queensland to Canberra and back each week; I travel 2,212 miles each week. If I were a member of the British Parliament and travelled that distance. I would probably fly about half-way across Europe.
People can travel from one capital city to another, do their business and return home the same day. Aviation has opened up wonderful possibilities. It will be possible in the future to travel to a far greater extent than we ever dreamt of in years gone by. The aeroplane has given us the opportunity to travel to distant places in very quick time. It is possible to travel round the world in a few days, and in a month it would be possible to see many places indeed.
To carry on these services within Australia and overseas requires safety regulations, and to-night we are putting many regulations into concrete form in legislation. In his second-reading speech the Minister mentioned that in pursuance of the power contained in section 5 of the act more than 300 regulations have been promulgated covering a wide and complex range of safety and technical matters affecting almost every phase of civil aviation.
As chairman of the Regulations and Ordinances Committee, I am particularly pleased to see that the necessity for a great many regulations in connexion with aviation matters has been eliminated by the introduction of this measure. The members of this Parliament should always be gratified to see Ministers introducing legislation which has the effect of obviating the need to make regulations. As we know, the enacting of legislation is the democratic method of making the law known to the public. Regulations are made by the Executive and may get round the wishes of the Parliament unless the Parliament, through either its individual members or the Regulations and Ordinances Committee, is vigilant. I congratulate the Minister for Civil Aviation (Senator Paltridge) on having introduced this bill, which will serve to overcome objections raised by the Public Accounts Committee.
There are certain points about this legislation that I wish to bring to the notice of honorable senators and the people generally. Unless an agreement such as this were reached, it would be very difficult for people to travel internationally by air. The Minister, in his second-reading speech, stated -
Under this agreement each contracting State grants to scheduled international air services operated by airlines of other contracting States the first two freedoms of the air, namely, the privilege to fly across its territory without landing and the privilege to land for non-traffic purposes. This agreement has been ratified by 51 States and is of considerable value to the Australian international airline Qantas Empire Airways Limited which, in operating its scheduled services around the world, flies over the territory of very many States which are parties to the Air Transit Agreement. In the absence of this agreement, it would be necessary to negotiate transit facilities separately with every State concerned.
That statement indicates the difficulties that would be encountered if there were no international air agreement, and if we had to negotiate individually with each country in which we wished our aircraft to stop for non-traffic purposes, or over which we wanted them to fly. It would be necessary for only one or two countries to stand out to prevent an international airline from operaing effectively.
It is good to know that Australia is a member of the International Civil Aviation Organization, and that our aviation standards meet the requirements of the organization. In my opinion, I.C.A.O. has done a wonderful job in facilitating aviation throughout the world and in developing international air services. In doing so, it has played a great part in the development of air transportation generally.
As we know, the Department of Civil Aviation is continually improving navigational aids so that aircraft may land with greater safety. Senator Armstrong has stressed the need for such facilities at the
Canberra aerodrome. Despite the advance in navigational safety, it cannot be denied that, unless the matter is properly controlled, equipment which has an adverse effect on safety aids may be installed. I was interested to read, in the Minister’s second-reading speech, the following statements in this regard: -
Serious interference can come from faulty electrical appliances, faulty radio receivers, faulty industrial equipment, faulty transformers, X-ray and diathermy units and a large variety of other sources. It is essential to ensure the safety of aircraft, therefore, to have express statutory authority to prohibit or remedy these sources of interference as the case requires.
Those are comforting words, Mr. Acting Deputy President. They indicate that every aspect of safety in relation to air travel is being considered. If there were no such provision, the work of the department in trying to ensure safety for air travellers could be nullified.
This bill does not remove altogether the power to make regulations affecting aviation matters. Such power is, of course, necessary. For instance, it is possible for something to happen, at a time when the Parliament is not sitting, that requires urgent action by the Government. Because of the need for safeguards in the operation of air services, I think it is proper that the Minister should have full regulationmaking power. I am sure that the present Minister for Civil Aviation will always exercise such power sparingly. It seems to me that this bill is permeated by a desire to ensure safety in aviation. It cannot be denied that safety precautions are of paramount importance. In Australia and throughout the world, a great many people are to-day travelling by air. Faster and larger aircraft are being developed all the time. It is good to note the consideration that has been given, in the preparation of this bill, to the safety of the passengers and crew of aircraft. I commend the bill for all the good features that it contains. I agree that it is a milestone in the legislative achievements of this Parliament, and I again congratulate the Minister and the Government on its introduction.
.- There has been a pleasing unanimity of view on this measure among Government and Opposition speakers. If I may, I should like to commend the remarks of Senator O’Byrne. I personally found them most informative and impressive. I should like to commend also the Minister for Civil Aviation (Senator Paltridge) upon the industry and diligence that he always shows in the discharge of the duties of this portfolio. He is notoriously a hard worker. I said to him one morning that he might get through his work a little better if he got up a little earlier. He mentioned the hour at which he did rise and it would have made even a member of the Country Party, who was without a milking machine, shudder, so I ceased to give him any advice after that.
In relation to the administrative procedure related to this measure, it is important to realize that the measure is really a legislative application of the Chicago convention. By and large, with the increase in speed of transport and the virtual shrinking of the size of the globe, this Parliament will be called upon, I hope, to deal more and more with the ratification of international agreements. At all events, more and more international agreements will be arrived at between delegates of governments, and I hope that this bill will lay down a precedent so that all ratifications of international agreements will be brought before the Parliament.
I say that now because recently there was concluded in Geneva a most important International Telecommunications Union conference, which discussed the international sharing of radio frequencies which are so necessary, in part, for keeping aircraft in the air. I sincerely hope that it is the Government’s intention, when that convention comes up for ratification, not to ratify it by executive act. I hope that it will be placed before this Parliament for thorough discussion and full and complete debate.
– You will be lucky if that happens.
– I hope that that is the course that the Government will adopt. I propose to refer briefly to proposed new section 21, which deals with interference with navigational aids. In an age when more and more people are filling the air with radio signals and disturbing it with electrical devices, this strikes me as being a most important and necessary provision for the maintenance of safety in the air, particularly when we realize that although existing radio legislation prohibits people from interfering with transmissions of any kind, there is no legislative sanction to enforce that prohibition. This bill will give the Minister, in an emergency, certain sweeping powers in order to deal with this type of danger. Although this is the sort of procedure against which this Parliament must normally be on its guard, there can be no objection to it in cases of this nature because of the speed with which the Minister may have to act.
As other speakers have pointed out, navigational aids have made extraordinary progress since air travel first began. Last Tuesday, most members of this Parliament arriving at Canberra airport had an example of the effectiveness of modern directionfinding equipment and modern blindlanding approach. I understand that at one time on that day eleven aircraft were circling Canberra airport, yet no interference or trouble was caused ultimately to any of them, apart from a slight delay. That would have been impossible just a few short years before the war.
I therefore support the measure. I congratulate the Minister upon the respect which he has shown for the institution of Parliament by permitting us to debate the measure as fully as we might wish. I express the hope that he will prevail upon his colleagues to ensure that other international agreements on other matters are in like manner placed before the Parliament.
– in reply - It is a somewhat rare and certainly pleasing experience to wind up a second-reading debate without the need to reply to criticism that has been made. I rise merely to express the gratification of the Government and, if I may add a personal note, my own pleasure at the ready acceptance with which this measure has been received by all parties in the chamber. As I explained in my second-reading speech, the project began as a deliberate exercise in taking out of the regulations and placing in the statute provisions which most appropriately should, as we believe, go in the statute rather than in the regulations. As we went along from that starting point, we built a little here and there. It is my pleasure to-night to see that the job which was undertaken, as I think, so thoroughly and so faithfully by the officers of my department, has been so readily accepted by the chamber.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 and 2 agreed to.
Clause 3 -
Sections two and three of the Principal Act are repealed and the following sections inserted in their stead: -
– (1.) In this Act, unless the contrary intention appears - crew ‘, in relation to an aircraft, includes every person having duties or functions on board the aircraft during the flight of the aircraft . . .
. -I move -
In sub-section (1.) of proposed new section 3, at the end of the definition of “ crew “, add the words “ in connexion with the flying or safety of the aircraft “.
It has been pointed out to me that the definition as it stands, is deficient. I am informed that it could be read as meaning any duties or functions on board an aircraft. The purpose of the amendment is to make perfectly clear that the duties are necessarily connected with the flying or safety of the aircraft.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 4 agreed to.
Clause 5 -
Section five of the Principal Act is repealed and the following sections are inserted in its stead: -
– (1.) The International Civil Aviation Organization possesses such legal capacity and is entitled to such privileges and immunities as are necessary for the independent exercise of its powers and performance of its functions in Australian territory. (2.) Without limiting the generality of the last preceding sub-section, the International Civil Aviation Organization has in Australian territory juridical personality and the capacity -
to acquire and dispose of real and personal property; and
to institute legal proceedings.
– (1.) Where it appears to the Minister . . . (3.) Where the installation has been installed and is used and operated in accordance with all applicable laws, the owner or user of the installation or the owner or occupier of the premises or place in which the installation is installed may recover from the Commonwealth the amount of all reasonable expenses incurred, and of loss actually suffered, in complying with the direction. (6.) Where action is taken in pursuance of the last preceding sub-section, sub-section (3.) of this section does not apply.
– (1.) A person who contravenes or fails to comply with a provision of this Act is guilty of an offence. (7.) Notwithstanding the preceding provisions of this section, the regulations may make provision for or in relation to other consequences (in addition to punishment for an offence) of contravention of, or failure to comply with, a provision of this Act or the regulations or to ensure compliance with a provision of this Act or the regulations.
.-I wish to direct the attention of the committee to the proposed new section 6. In his second-reading speech, the Minister referred only to sub-section (3.) of proposed new section 6, which says that the archives and other documents of the organization kept in Australian territory are to be inviolable. That does not concern me so very much. We will all observe the spirit of that aspiration. But sub-sections (1.) and (2.) concern me because, to me, they express in novel language terms which I think are intended to give to this organization in Australia the legal recognition of a corporation. It is very novel language indeed, and I ask the Minister to comment upon the reason for departing from the general terms by which a body is incorporated for the purposes of our law.
– The proposed new section gives expression to article 47 of the convention, by which we undertake an obligation in the following terms: -
The organisation shall enjoy in the territory of each contracting State such legal capacity as may be necessary for the performance of its functions. Full juridical personality shall be granted wherever compatible with the constitution and laws of the State concerned.
All the provision does is lift that obligation out of the convention and put it in the act. Like so many other things that we will encounter to-night, it has been established in this form by the regulations which we have accepted.
.- Clause 5 seeks to insert new sections 4 to 30. That being so, would I be in order in referring to proposed new section 21 at this juncture?
– It will be noticed that proposed new section 21 gives the Minister unqualified power in relation to any installation that is or may be, either actively or passively, causing interference with radio communications to or from aircraft or with navigational aids in circumstances that are likely to endanger the safety of aircraft. It reads -
Where it appears to the Minister that any installation is or may be, either actively or passively causing interference with radio communications to or from aircraft or with navigational aids in circumstances that are likely to endanger the safety of aircraft . . .
It may be proper to construe the phrase, “ in circumstances that are likely to endanger the safety of aircraft” as applying to the whole of what goes before. I will concede that it does, but where it appears to the Minister that an installation may be causing interference that is likely to create danger, the Minister has the unqualified right, under sub-section (2.) of proposed new section 21 to direct such modification to the installation, or such other action, as is necessary to eliminate the cause of the interference within such reasonable time as is specified in the notice served upon the owner or user of the installation or the owner or occupier of the premises or place in which the installation is installed. I bring that to the attention of the Senate only for the purpose of indicating that I propose later to move an amendment to sub-section (7.) of proposed new section 22. My amendment will seek to introduce a protection for the person against that unqualified authority of the Minister.
I submit that, in our glowing appreciation of the integrity of purpose of the department and the Minister, we should not over look our function as a Parliament to see that the law is properly expressed so as to guarantee proper safeguards against arbitrary interference with individual rights. To my way of thinking, where a Minister has the right to direct a modification on the basis that it appears to him that it may cause an interference, there should be some impartial and independent tribunal other than the Minister to whom the subject can have recourse for protection.
I come now to sub-section (3.) of proposed new section 21. It reads -
Where the installation has been installed and is used and operated in accordance with all applicable laws, the owner or user of the installation or the owner or occupier of the premises or place in which the installation is installed may recover from the Commonwealth the amount of all reasonable expenses incurred, and of loss actually suffered, in complying with the direction.
I move -
In sub-section (3.) of proposed new section 21 -
after “been” insert “lawfully”;
leave out “ in accordance with all applicable laws “.
It is almost impossible, in the complexity of modern law, for anybody to be in compliance with all laws at any one time, and I can foresee some zealous official who is given a file to argue against a claim for compensation saying, “ But John Smith, who has been ordered to dismantle a sawbench has not got a dog’s licence in connexion with the kennels on that properly “, or, “ He did not give proper notice to the municipality of intention to install the sawbench “, or he might raise some other technicality. That possibility is emphasized on my mind by the unusual expression, “All applicable laws “. I submit that what we want to say is that if the installation has been lawfully made then the person concerned is entitled to compensation. I think it would conduce to clarity if I confined myself for the moment to the simple amendment I moved for the committee’s consideration.
– This provision, which concerns interference with navigational aids, is one of the matters to which I referred in my second-reading speech, when I said that actions taken in the interests of civil aviation safety may sometimes appear to be drastic. Indeed, it may sometimes be necessary to take drastic action. In this case, however, I think Senator Wright has not given sufficient attention in his reading of the measure to sub-section (2.) of proposed new section 21. lt is true that proposed new section 21 (1.) provides -
Where it appears to the Minister that any installation is or may be- and those are the words to which the honorable senator points particularly - either actively or passively causing interference . . the Minister may authorize a notice to be served upon the owner or user of the installation
At that point all the Minister may do is to cause a notice to be served. Nothing further happens until after a test is made. What happens as a result of such inspection and test is set out in sub-section (2.), which reads -
If, as a result of such an inspection or otherwise, it appears to the Minister necessary to do so for the safety of aircraft referred to in the last preceding sub-section, the Minister may authorize a notice to be served on the owner or user of the installation or the owner or occupier of the premises or place in which the installation is installed directing the person on whom the notice is served to make such modification to the installation, or to take such other action, as is necessary to eliminate the cause of the interference, within such reasonable time as is specified in the notice.
The sequence is as follows: If it appears to the Minister that an installation is, or may be in his estimation, dangerous and likely to cause interference, the Minister takes action to have a notice served. Then an inspection and test is made, and it is the result of such inspection and test which decides what further action shall be taken. I suggest that this sequence, having regard to the importance of maintaining air safety, is a reasonable sequence to follow in the circumstances.
Proceeding to the suggested amendment of Senator Wright, sub-section (3.) provides -
Where the installation has been installed and is used and operated in accordance with all applicable laws . . .
I think that eliminates the sort of situation that Senator Wright envisaged, in which non-compliance with a law of a completely irrelevant kind might place a man in a position in which advantage could be taken of him. The sub-section clearly refers to a case in which the installation has been installed and is used and operated in accordance with all applicable laws. It is clear, I think, that any law which does not directly bear on the installation and use and operation of the particular piece of equipment would have nothing to do with this provision.
Senator Wright referred to the use of the term, “ in accordance with all applicable laws “. He suggested that the provision might be better expressed by the use of the single word “ lawfully “. I find myself in a most invidious position. I am very aware of my position when I have to enter into a discussion with Senator Wright on the use of words, particularly the use of words in a piece of legislation. I am advised, however, that the term “ in accordance with all applicable laws “ has a particular appropriateness in this case, because it could refer to Commonwealth laws, State laws, territorial laws, local authority laws and the like.
– That is where the terror of it lies. There has to be compliance with every one of those laws, trivial or important, in the installation, use and operation of the equipment.
– But the limiting factor surely is that the offence has relation only to the installation, use and operation of the equipment. I suggest that in the important interest of aerial safety, and with that limitation - and I do regard it as a limitation - the clause as it stands should be completely acceptable.
– My perusal of this provision leads me to make these comments. Proposed new sub-section (1.) provides that the Minister may take the action contemplated if, in his opinion, an installation may be either actively or passively causing interference.
– “ May be or likely to “, is it not?
– No. I am referring now to line 2 of sub-section (I.). I will read it fully -
Where it appears to the Minister that any installation is or may be, either actively or passively, causing interference with radio communications . . .
When the Minister thinks that an installation may be causing trouble, he may do no more than serve a notice, under this subsection, directing that permission be given for the installation to be inspected and tested by an officer. At that point, when there is a doubt whether the installation is or is not causing interference, the Minister may carry the matter only to the point at which he has the right of inspection. Then sub-section (2.) provides -
If as a result of such an inspection or otherwise -
-“ Or otherwise “.
– 1 know. I note those words- it appears to the Minister necessary to do so . . .
Under this clause it has to appear to the Minister to be necessary - there is no “ maybe “ about it on this occasion - before he is in a position to cause a notice to be served directing that the installation be modified to meet the department’s objection. Now I come to sub-section (3.). As I understand Senator Wright’s amendment, in the limited time in which I have had to study it, it is proposed to insert the word “ lawfully “ after the word “ been “ in the first line, and in the second line to delete the words “ in accordance with all applicable laws “. If this were done, the word “ lawfully “ would apply only to the installation and not to its use and operation. The subclause would then read -
Where the installation has been lawfully installed and is used and operated . . .
– Well, insert the word “ lawfully “ after the word “ is “, if you like.
– All I am saying is that I have before me at the moment the amendment that has been circulated. II we adopted the amendment in its present form, the words “ and is used and operated “ would be of no real effect. The adoption of the amendment in its present form would cause the sub-clause to read -
Where the installation has been lawfully installed and is used and operated … the owner or user of the installation . . . may recover … all reasonable expenses incurred . . .
I certainly would not be prepared to accept the amendment in that form. I think that perhaps what Senator Wright has in mind is to reduce the number of words used by deleting the words “ in accordance with all applicable laws “ and getting it down to the word “ lawfully “. I have very little doubt that the same result would be achieved in each case so long as we make the word “ lawfully “ applicable to use and operation. In the form that the amendment is presented, I do not think that it achieves the purpose desired.
– I can best show the purpose of my amendment by an illustration. Suppose a municipal council had approved a multi-story flat building to contain rooms measuring 12 feet by 12 feet and it appeared that, when constructed, the building contained rooms measuring 11 feet 6 inches by 12 feet. You could defeat this compensation provision by taking advantage of such a technicality. I think that when we applaud a Minister for bringing matters of this sort from the subordinate stage of regulations to the floor of the Senate, wa must give it our earnest attention to see that we secure the right of the individual as well as the safety of the aviation services. I do not believe that we fulfil our purpose just by tendentious objections to phrases.
You will get the zealous official saying that he will defeat legitimate claims for compensation by proving that some immaterial part of the law has not been complied with in relation to the installation or the use or operation of the installation. To my way of thinking, we would do ourselves real credit by making an amendment of the phraseology that would guarantee that such a discreditable defence to a claim for compensation would not prevail.
.- My difficulty in regard to proposed new section 21 is of a slightly different nature from Senator Wright’s, inasmuch, as I wonder whether it goes far enough. Sub-section (1.) reads -
Where tt appears to the Minister that any installation is or may be, either actively or passively, causing interference with radio communications . . .
He may then take certain action. One method of causing interference to radio communications is by other radio communications. Sub-section (8.) reads -
In this section, “ installation “ includes any electrical or other equipment or any metallic structure.
I wonder whether the Minister is of the opinion that that definition is adequate to cover mobile radio transmitters which may be operated from, say, taxi trucks or fishing vessels by users who do not have the technical control over their equipment that the normal radio operator has. Such people obtain a licence under less stringent conditions than the ordinary radio operator. I would like the Minister to consider whether it would be prudent to insert in sub-section (8.), after the words “ installation includes “, the words “ any form of radio transmission or “. I think that if this were done, it would remove any possibility that the mobile radio transmitters which abound in the country are not covered by this legislation.
– Would not that be covered by the words “ other equipment “ in sub-section (8.)?
– I am asking the Minister if he is satisfied that that is so. If we read the sub-section, we see that the draftsman has not adverted to radio transmission as such. The sub-section is directed to spurious interference by way of electrical equipment, as I understand the position.
Turning to sub-section (3.), I do not experience the same difficulty that Senator Wright has experienced in relation to the meaning of the first two lines. They read -
Where the installation has been installed and is used and operated in accordance with all applicable laws . . .
Obviously the words “ used and operated “ refer to the installation. I cannot conceive of any set of circumstances in which any court or judicial body would be of the opinion that failure to comply with dog licence regulations or with the conditions of kennel registry could be used as a means whereby a person aggrieved by the Minister’s action could be denied justice. I see no difficulty arising from a provision to the effect that a user must comply with Federal, State, or local authority laws. If he does not do so, he is operating an illegal piece of equipment. It does not matter where the chain breaks; if it breaks, the installation becomes illegal. For those reasons, I feel that I cannot support the amendment which Senator Wright has put forward.
– I should like to reply to the point that was raised by Senator Hannan. First, I should like to thank him for his comments con cerning the amendment that has been moved by Senator Wright, which have put clearly and succinctly my thoughts on the matter. Dealing with the point which he raised in relation to the use of the words “ electrical or other equipment “, I should like to say that my technical officers and the draftsman have satisfied themselves thoroughly that the definition is broad enough, and that “ electrical or other equipment” includes radio, radio equipment and the like. The Institute of Electrical Engineers is the radio authority which has been accepted in this case.
.- I thank the Minister for his explanation in relation to electrical equipment. There is a matter concerning sub-section (7.) to which 1 wish to direct his attention. The subsection reads -
A notice under this section may be served personally or by post.
– On a point of order, Mr. Temporary Chairman, as we are dealing’ with an amendment to sub-section (3.) of proposed new section 21, it would be more conducive to clarity to deal with the matter in its proper sequence.
– That would be the proper procedure.
Paragraph (a) of amendment negatived.
Remainder of amendment - by leave - withdrawn.
.- Having withdrawn paragraph (b) of my previous amendment, I now propose to move a further amendment to subsection (3.) of proposed new section 21, which states that compensation shall be “ the amount of all reasonable expenses incurred, and of loss actually suffered, in complying with the direction “. This is not a case of acquisition of property under which the Constitution, in a case of expropriation, guarantees just terms. Here the compensation is stated to be expenses incurred and loss actually suffered in complying with the direction. I offer the view, not incontrovertible I agree, but still worthy of consideration, that the words “ of loss actually suffered “ are first capable of being construed only as applicable to loss sustained up to the date of the claim, without taking into account future accruing loss. But what is more important, the composite expression, “ loss actually suffered “ does not, I submit, convey to the mind that what is intended is to give compensation for loss caused up to date or caused in the future by complying with the direction. 1 move -
In sub-section (3.) of proposed new section 21 leave out “ actually suffered, in complying with “, insert “ caused by “.
I ask the Minister to accept that amendment.
– Mr. Chairman, the use of the expression “ of loss actually suffered “ can, I submit, only be interpreted to mean the loss suffered at the time the aggrieved person takes whatever action he chooses to take for recovery. The language used - “ of loss actually suffered “ - has been used in the regulations for many years and has become familiar to those people within the industry who are affected by these regulations. I am not submitting that as a complete and final reason why the language should be retained but, on the other hand, seeing that the regulations have stood for sp many years in this form, there seems, I suggest, little point in altering the Iangauge when the substance of a man’s claim is not in any way prejudiced by the use of that language.
.- I come now to a much more important matter. I move -
Leave out sub-section (6.) of proposed new section 21.
The committee will see that sub-section (4.) provides that non-compliance with a direction without reasonable excuse shall be an offence. Sub-section (5.) provides - (5.) If a person upon whom a notice under sub-section (2.) of this section is served fails to comply with a direction contained in the notice, the Minister may authorize an officer . . . to enter the premises or place in which the installation is installed or kept, with such force as is necessary, and to take such action as is directed in the notice.
In most cases of forceable entry by a compulsive authority it would be usual to obtain some warrant from a third person, such as a justice. I do not object to the Minister’s compulsory power to enter without permission of a justice, but my amendment is designed to delete sub-section (6.), which says that where the individual resists the
Minister and it is necessary for the Minister to exert his right to enter, then the individual loses his right to compensation. To my way of thinking that is an arbitrary and unwarranted denial of compensation. 1 submit that just because it is necessary for the Minister to authorize his officer to enter and, with such force as is necessary, remove the installation, compensation for the loss caused should not thereby be forfeited, especially if you look to proposed section 22 and see the drastic penalties that ace imposed. The penalties are a fine of £200 and imprisonment for six months on summary prosecution, or both, and, if on indictment, a fine of £500 or imprisonment for two years. Anybody, upon conviction for failing to comply with the Minister’s direction without reasonable excuse, is subject to those penalties. I protest against the power interrorem to be used to subdue the individual ju:.t because the equipment used is interfering with aircraft and the Minister has to go in and unscrew screws, loosen bolts and carry the stuff away. The individual should not thereby lose his right to compensation.
.- If I understand the meaning of this proposed new section correctly, power to take similar action resides already in the PostmasterGeneral’s Department in the case of a faulty radio that may cause interference with radio reception. I understand that officers of the Postmaster-General’s Department can take action against a person owning such a radio and, if necessary, confiscate the set. I should like to put the hypothetical case of a man who owns a property close to the approaches of a runway that has cost the Department of Civil Aviation £1,000,000 lo construct. He may erect a high television or radio aerial that is in the line of approach of aircraft. Or he may have on the roof of his dwelling some object from which reflection may dazzle pilots coming in to land1. Or he may have a faulty radio that interferes with the reception of pilots as they make their approach. Would the amendment that has been moved prevent the Department of Civil Aviation from taking action to protect pilots and passengers from such acts of carelessness and bad citizenship on the part of people who live on the perimeter of an aerodrome?
.- The proposed new section has application to a person who is proved to be in possession of some equipment which could, because of its faulty operation, be dangerous to an aircraft in flight, and who refuses admission to the authorized officer to remove such equipment. Where it is proved that equipment in the premises is faulty, and is causing or may cause damage, or even loss of life, the owner of the premises who denies an authorized officer permission to enter the premises and remove the equipment shall not be eligible to take action for compensation. To some that may seem a pretty tough proposition. I hope I will be forgiven if 1 say as Minister for Civil Aviation - the particular Minister to whom the Australian public looks to preserve, as far as he is able, safe flight and safe standards in this country - that although I am completely in sympathy with what my friend Senator Wright says about the rights of an individual, in this case I cannot go the full way with him.
Here is the case of a man who has equipment proved to be faulty and dangerous to an aircraft in flight and obstructs an officer from entering and removing that equipment. We say that in such a case of bad citizenship that man should not be eligible for compensation. If only as a deterrent against future conduct of that sort, I believe the provision is valuable and, indeed, necessary. That is a case to my mind where civil aviation interests merge with the public interest against a member of the public who acts in a manner which could be described as unsafe.
.- The weakness of the case of the Minister for Civil Aviation (Senator Paltridge) is that he has over-stated it. Nobody contests the proper right of the Minister to ensure that approaches to aerodromes are safe and that interference is removed, but the Minister altogether misled the committee when he said that where an installation has been proved to be a danger to aircraft and the owner of it refuses an officer the right to enter, that person should be deprived of compensation. That proposition is not supported by the language of the bill. It is not, in fact, correct. The person who is to be deprived of compensation - which the committee, the Minister and everybody should agree is the normal right of a person whose installation is to be removed or destroyed because of the requirements of an aerodrome - is the person who fails to comply with a direction in a notice. According to sub-section (2.) it is a notice by the Minister - to make such modification to the installation, or to take such other action, as is necessary to eliminate the cause of the interference, within such reasonable time as is specified in the notice.
All of that is in the judgment of the Minister and is not proved to anybody. It is not a judgment formed upon an inspection or a test, but, as those who have drawn the bill have been careful to provide, a judgment formed upon an inspection or test or otherwise. The information may come from all sorts of irresponsible sources. Ministers are not infallible however well-intentioned they may be.
I have moved the amendment in an attempt to correct arbitrary abuse mistakenly inflicted. To inflict on a man the penalties I have referred to because without reasonable excuse he fails to comply with a direction, I submit, is reminiscent of the days of the Stuarts. You are imposing forfeiture of his proper right of compensation, not because he refuses entry but because he fails to comply with such requirements as the Minister specifies for modification of the interference. His refusal may arise out of a genuine difference of opinion into which technical considerations enter. On technical advice he may dispute the Minister’s viewpoint and say, “ I have this X-ray equipment here. It is not short-circuiting. It is not interfering with aircraft. I will not remove it, but you can remove it if you wish.” As the Minister has confessed, the purpose of this provision is to act as a deterrent, to frighten, to coerce such a person into compliance with a direction of the Minister to modify the equipment if that appears to the Minister to be necessary, as a result of an inspection or otherwise. It is the words “ or otherwise “ that I view with some apprehension.
If the Minister forms the opinion that a particular modification is necessary, and if I, on the best advice in the country, dispute that opinion and say quite decisively, “ 1 will not accept your direction as correct, but 1 shall sit here and watch your officers carry out the modification “, I take it that the officers would then proceed to spoil the X-ray machine, or whatever the equipment was, and that I would then be deprived of my right to compensation. I take it, too, that I would be subject to a penalty of imprisonment or a fine. I am not objecting to the imposition of penalties of either imprisonment or fines by a court, but I do resist the forfeiture of the right to compensation at the instance of a ministerial decision.
– I have a deal of sympathy for the argument that Senator Wright has addressed to the committee, although I think that a case such as that to which he referred would be an exceedingly rare one. I ask the Minister for Civil Aviation (Senator Paltridge) to say whether I am right in putting the proposition that I am about to advance. In the event of a notice being given to an individual to effect a modification of a particular installation, the man concerned might say, “ I know that that is necessary, but I have no time to chase around for workmen to do the job. You do it yourself.” That man would fail to comply with the direction and would immediately, under sub-section (3.), of proposed new section 22, be liable to a fine of £500 or imprisonment for a term not exceeding two years.
If I have stated a sound case to the Minister in that respect, and if the person concerned failed to comply with the direction in saying to the departmental officers, “ You can chase around and get the necessary workmen to do the job “, would he not also deprive himself of compensation for whatever loss he suffered pursuant to the modification of his plant, which could be substantial? Having regard to the fact that he committed the offence in the circumstances I have outlined and could be fined or imprisoned, it seems to me, to use an Australian vernacular term, to be putting the boot into him to say that, although the Department of Civil Aviation gets its wish and has the obstruction removed, and although his business or his equipment may be damaged thereby, he has no right to compensation.
I agree that the department is entitled to do damage in the interests of safety, but surely there should be compensation in all such cases. If a person has obstructed the operations of the department in a way that merits punishment, his failure to remove the obstruction and to comply with a direction to remove the obstruction is visited with heavy penalties which are in the discretion of a court. Does not the Minister see that it is rather loading the penalty and making heavy weather of it also to provide that the owner of the plant is not to be compensated for damages resulting from its modification? I think that the Minister could reasonably drop that particular provision.
.- I ask the Minister whether the Department of Civil Aviation would be protected if a person approached an aerodrome, for instance, with equipment that was known to be faulty and could adversely affect other equipment that was being used for air safety purposes. Suppose that the person concerned refused to comply with a request either to modify or to dispose of the equipment, although he knew that in either event he would be compensated. What would be the position of the department in regard to a person such as that who purposely created a nuisance in the knowledge that even for an old piece of equipment he could obtain compensation by continuing to create a nuisance with it?
– I regret that when I spoke previously 1 unintentionally aroused the ire of Senator Wright. Like him, I put a point of view as forcibly as I can, and I should not like him to think that because I do that, I am not simultaneously considering the matter that he has put to me. I listened with great interest to his submission which was, if I may say so, reinforced by the remarks of Senator McKenna. lt is not my intention or the intention of this bill to do anything other than go to the extreme point of ensuring that there is safety in the air. I have reflected on what Senator Wright has said.
I admit that there is a danger, remote though it may be, because, after all, Ministers and departmental officers are not infallible, although 1 believe they are conscientious. But as there is a remote possibility that justice may not be done, 1 am prepared to accept Senator Wright’s amendment.
Amendment agreed to.
.- Before leaving this clause, I wish to direct attention to the provision for service contained in sub-section (7.) of proposed new section 21. The sub-section states -
A notice under this section may be served personally or by post.
To my way of thinking, a difficulty could well arise in the case of an installation which was of a metallic kind. In the case of equipment which was in use and was positively creating a disturbance, probably the owner or the operator would be available for personal service, although no doubt even the question whether service on the man operating the equipment was in fact valid service on the owner might be open to argument elsewhere.
Obviously, speed is the essence of the contract in this matter. The Minister must hurry and take action quickly. The safety of aircraft and passengers cannot be imperilled because the Minister is held up by a procedural difficulty. If that were not so, we should not concede the Minister the special powers which are provided for in the earlier part of the clause. If the notice is served personally, no difficulty arises. Let me advert to circumstances in which a metallic structure, such as a shed, near an aerodrome is acting as a reflecting device and bending a radio beam. What is to be the position regarding service if the owner of the shed, which is situated near the Essendon aerodrome, is away on holidays at, say, Surfers’ Paradise? If the notice cannot be served personally, are the proceedings to be held up until the owner returns, or is it the intention of the Minister that service may be effected by post? If it is to be effected by post, is the notice to be sent to a particular address?
How is one to determine the address at which service of the notice is to be effected? I think that the question of service is extremely important, because the Minister cannot mess around applying to a court for an order for substituted service. Some direction or assistance should be given to the Minister to ensure that he can serve notice. Let us consider the position suggested to me by a colleague a few moments ago. If notice may be served by post, by the time a man gets back from holidays his installation may be wrecked. Had it not been for the acceptance by the Minister of Senator Wright’s amendment, the owner might have found himself deprived of compensation.
The question of notice, therefore, is one to which the Minister might advert at some greater length, because the foundation of the whole of these proceedings rests upon service of the notice. In other words, the only shred of normal legal proceedings that is retained in favour of the subject in this matter is the fact that he must get notice before his private rights are invaded for the benefit of the State and the community as a whole. I should like the Minister to tell us the view of his advisers in regard to service of this essential notice.
– The practical difficulty raised by the query is immediately obvious. The proposed new section provides that notice may be served personally or by post. It does not limit service to service personally or by post. It may be done in other ways, if necessary.
– What other ways are there?
– By telephone.
– You cannot establish identity by telephone.
– You would not know to whom you were talking.
– Could service be effected by telegram?
– Service by telegram may be in the same category as service by post. .
– By telegram to where?
– To the place where the gentleman is.
– If he is on holidays you cannot be held up, but how is the law to proceed?
– I think the solution is to be found in section 29 of the Acts Interpretation Act, which reads -
Where an Act authorizes or requires any document to be served by post, whether the expression “ serve “ or the expression “ give “ or “ send “ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
.- 1 submit, with respect, that the Acts Interpretation Act is obviously not designed to deal with such a question as that which I raised. If we are interested in basic justice, of what possible use is it to address a written notice to a person who may own a metallic structure, to use an expression appearing in the bill. Does the notice go to the address of the metallic structure or to any other address, business or private, that the owner of the metallic structure mayhave? I should like those matters disposed of by the Minister.
.- 1 suggest that there is no danger of real injustice. After all, the statute provides for service by post. The notice is posted and then the legal authority accrues. We know that in a great majority of cases that is accompanied by informal communication which, with modern facilities, would undoubtedly reach even a resident of Melbourne who was holidaying on the Gold Coast, lt is simply a question of legal authority. If it is provided that the notice is effective if served personally or by post, the danger of accidental injustice is so slight, I submit, that we should not override the general purpose of the statute in an endeavour to provide for the most unusual case.
– In the circumstances suggested by Senator Hannan, service having been effected by post, the department would then take action to remove the cause of the interference. It would be quite within the law in so doing, notice having been served as provided. The person concerned would, under proposed sub-section (4.), have reasonable excuse for not having removed it himself, and the aircraft would be quite safe.
.- I have no further objections to proposed new section 21. I wish to direct the committee’s attention to proposed new section 22 (7.). Proposed section 22 deals with offences and punishments, and then proposed subsection (7.) reads -
Notwithstanding the preceding provisions of this section, the regulations may make provision for or in relation to other consequences (in addition to punishment for an offence) of contravention of, or failure to comply with, a provision of this Act or the regulations or to ensure compliance with a provision of this Act or the regulations
I doubt whether it has a precedent. After a court has had before it a case in regard to contravention of the act or regulations, has dealt with the offender and directed the appropriate punishment, power is purported to be given to the regulation-making authority to provide for any other consequences in addition to punishment for the failure or contravention. It will be noted that proposed sub-section (3.) carefully provides that an offence may be prosecuted either summarily or upon indictment, but the offender is not liable to be punished more than once in respect of the same offence. That states in sweet, old-fashioned terms a principle that everybody, I submit, should accept without qualification. Here we have it solemnly stated in sub-section (7.) of proposed new section 22 that although the course of justice has been run, although a court of justice has inflicted thi appropriate penalties, the regulation, not the statute, may provide for additional consequences, obviously of an adverse nature, to accrue to the offender.
I hope it is not necessary to assure the Minister that I do not make these suggestions with ire. It ill becomes my benignity to have it suggested that I make these observations with some degree of ire. I make them with some degree of emphasis so that they will be understood. I fail to see any justification for a regulation which provides for consequences other than a fine or imprisonment imposed by the court.
– This is another of those provisions which could be used for purposes of safety and safe flying. It is necessary that this provision should be carried into the regulations so that the State acts will attract the regulations. Here we provide for the possible case where, a fine having been imposed as a result of action in the court, action might still be taken to remove an aircraft which should be grounded, or to prevent a pilot who is under suspension from flying, and so on. Such cases might never occur but, just as Senator Hannan was rightly concerned at the remoteness of a case in which quick action might not be possible, so is this provision for the making of regulations inserted in the measure.
I emphasize that it applies only to extreme cases, the type of case which, if it should ever occur, I am sure would receive a chapter of its own in the Minister’s annual report to Parliament. But, remote as it is, it is something that could happen, and for that reason this is a necessary and desirable provision.
– I find it hard to reconcile that view subsection (1.) of proposed new section 22, which provides that a person who contravenes or fails to comply with a provision of the act is guilty of an offence. If you want to take power to administer some consequence other than fine or punishment, I submit you do not justify a case for the regulation making authority to prescribe any other consequences that occur to it. I submit that this provision is most dangerous. The fact that the Minister has stated that it would apply to a most unexpected case indicates to me that in this heart he really feels that this provision is without justification except in that one millionth case. I think it disfigures the statute by which the Minister is endeavouring to lift provisions out of the realm of regulation and promote them to a statute. I urge that further consideration be given to this proposal.
I pass now to a further argument. I have read the first part of proposed new section 21 and pointed out that the Minister may make his direction for modification after he has had an inspection and test and confirmed his judgment that a modification should be made. I have also pointed out that there is nobody to whom the subject can appeal to vary that direction. It is not required by the statute that the Minister shall base his decision upon the result of the inspection or test. If he bases his decision otherwise than on an inspection or test, his direction shall prevail. I therefore move -
In proposed new section 22, leave out subsection (7.) and insert the following sub-section: - “(7.) If a person obtains a declaration from a Court that the installation does not cause interference as mentioned in sub-section (1.) of section 21 the Minister’s direction shall be of no effect.”.
– When I last spoke I possibly gave more emphasis than I should have to the case of a grounded aircraft or detained aircraft being a remote possibility. There are other things such as the suspension and cancellation of a licence, which are not so remote. They occur, if not frequently, then certainly on numerous occasions throughout the year when, for one reason or another, a pilot’s licence is suspended or cancelled.
Such a case can be dealt with only by regulation because it must have intra-state application. The same applies to the detention of an aircraft. The State acts have application only to the regulation and that is why it is necessary that we make provision for regulations to give us power with respect to intra-state operations.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly) -
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 11 p.m.
Cite as: Australia, Senate, Debates, 11 May 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19600511_senate_23_s17/>.