24th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
Assent to the following bills reported: -
International Organizations (Privileges and
Immunities) Bill 1963.
International Development Association Bill
International Finance Corporation Bill 1963. International Monetary Agreements Bill 1963. World Health Organization Bill 1963. Loan (War Service Land Settlement) Bill 1963.
– My question, which is addressed to the Minister for the Navy, refers to the recent deaths of a number of naval officers in tragic circumstances. Will the Minister give an assurance that he will do as the Minister for Civil Aviation did in the case of the aircraft accident at Mackay some time ago, when loss of life was involved, and hold a public inquiry presided over by a judge? In passing, may I tender on my own behalf, and no doubt also on behalf of all honorable senators, sincere sympathy to those who lost their sons in this tragic incident.
– As I have already indicated to the Leader of the Opposition, I propose to ask for leave to make a statement on this matter later to-day. I should prefer to wait until that time before commenting on it.
– Is the Minister representing the Minister for Primary Industry aware that there is considerable anxiety in wheat-growing areas regarding the amount that will be payable as the first advance on the coming season’s crop? Can the Minister indicate to the Senate the amount of the first payment on the crop?
– I concede that there is considerable interest among wheatgrowers at this time of the year regarding advances on the crop, but there is no cause for anxiety because the record of this
Government in relation to advances has met with the approval of the wheat-growers on, I think, practically every occasion. I am not in a position to indicate to the honorable senator what the amount of the first advance will be this year, but an announcement is imminent.
– My question is addressed to the Minister representing the Postmaster-General. Is he aware that there has been widespread comment on the bad reception from national television station channel 5 in the Hunter River area? Is the Minister aware also that the quality of the transmission does not compare with that of the local television station? Have steps been taken by the PostmasterGeneral’s Department to improve the position, or is the equipment at the station of such a nature that it is not possible to transmit a good picture?
– I cannot speak authoritatively on the matters which the honorable senator has raised. I know from my experience of television in Victoria in an area where a service was provided by means of relay, that when the station first began operating the technical standard of the telecasts left something to be desired. As a result of inquiries that we made, we were informed that every television station was in an experimental stage early in its operations and that as time went by the presentations would be improved. That has proved to be correct. I do not know specifically whether channel 5 in the honorable senator’s area has reached the stage of being rid of its teething troubles. I shall direct the Postmaster-General’s attention to the point that has been raised by Senator Arnold and see whether he can add anything to what I have said. I shall ask him to inform the honorable senator accordingly.
– I ask the Minister representing the Postmaster-General whether it is correct that a transfer charge of 6s. is levied by the telephone branch of the Postmaster-General’s Department in the event of a call being transferred to a number other than the one that was asked for. Does this fee apply to all telephone calls, whether they are trunk or local calls? Docs not the Minister agree that this charge is excessive and is a distinct hardship to doctors and people in business who depend on being contacted by telephone?
– The PostmasterGeneral’s Department adopts a very liberal attitude in its interpretation of the provision governing the charge for the transfer of calls. For example, if a personal call fee is paid and the person called is not at his usual place of abode or business but the authorities are in a position to locate him without great difficulty, the call is transferred without any additional charge being made. For a fee of 6s. a telephone subscriber may have his calls transferred to another number for any period not exceeding 24 hours.For a charge of 6s. a similar facility may be enjoyed during specified hours of the day for a period of up to one week.
– I address these questions to the Leader of the Government in the Senate: Has the Government had time to consider seriously reports from the United States of America that the cattle-producing States of that country are increasing pressure on the United States Government to restrict drastically the growing imports of Australian beef, and that members of the National Cattlemen’s Association who have just returned to the United States of America after attending recent discussions at Surfers Paradise have said that cheap Australian meat imports threaten the United States cattle industry? Is it true that a “ Ban Australian Meat “ campaign has been launched? Is that campaign likely to have serious repercussions and will it result in the adoption of a quota system and higher duties on imports of foreign beef? If this ultimately happens, will the Australian Government take suitable action against United States imports which continue to flood Australia? Is this a clear indication of President Kennedy’s bold plan to expand exports from the United States of America at the expense of Australia?
Senator Sir WILLIAM SPOONER.Apparently Senator Hendrickson has not been keeping his reading up to date. ‘ Only last week in this chamber I, on behalf of my colleague the Minister for Trade, furnished an answer which dealt quite exhaustively with this situation. My recollection is that that answer set out the exports of meat to the United States of America from Australia year by year over quite a period of time and that it showed just how valuable the trade had become to the Australian cattle industry. The answer gave chapter and verse for the statements that had been made in the United States Senate in criticism of Australia’s increased meat trade. Furthermore, it was pointed out that Mr. McEwen had checked these statements with the United States Administration and had found that it was not expected, nor was it desired, that any action would be taken to reduce exports of meat from Australia to the United States provided the health requirements of the UnitedStates market were being met. Those requirements are being met at the present time. I think Mr. McEwen’s reply went on to state that it was the cheap meat which had a great attraction to the American market and that there was no ground for apprehension about the continuance of the trade in meat of that quality.
– We hope.
Well, it was checked upon the best authority.
APPRENTICES. (Question No. 83.)
asked the Minister representing the Minister for Labour and National Service, upon notice -
– The Minister for Labour and National Service has supplied the following answers to the honorable senator’s questions: -
I am informed that the Commonwealth Railways and some Government departments have not always been able to recruit the numbers of apprentices required.
(Question No. 137.)
asked the Minister for Civil Aviation, upon notice -
– The answers to the honorable senator’s questions are as follows: -
Guinea because it has never been necessary. Indigenous passengers are accorded precisely the same standard of service as Europeans, although on many routes the latter pay fares as much as 50 per cent, higher than those charged for indigenes.
– I present the report of the Parliamentary Standing Committee on Public Works, relating to the following proposed work: -
Construction of the Top Springs to Wave Hill Road, Northern Territory.
– by leave - Honorable senators will have read with great sadness of the loss to Australia of two and possibly five of her most admirable young men. I wish to take the opportunity to place before the Senate a factual account of what is known of this affair so far, and to indicate what is now happening and what it is proposed will happen in the future.
A party of five midshipmen left H.M.A.S. “ Sydney “ last Thursday morning with the object of circumnavigating Hook and Hayman islands. The purpose of this training exercise was to give them further experience in small boat handling, which is an essential accomplishment of seamen officers. This training had been going on for some time with different crews, and three exercises of the same kind had been carried out on the three previous days before the exercise on which the tragedy occurred. On these previous occasions, and on the occasion we are discussing, the weather is reported by the Navy on the spot to have been similar, with winds ranging from IS to 25 knots and moderate seas. On two previous occasions boats were unable to return to H.M.A.S. “ Sydney “ by nightfall because of the tide, but this had been anticipated and the crews had been told to spend the night camped ashore if necessary, lt is understood that one crew spent the night on Hayman Island and the other on Hook Island. On each of these occasions a motor cutter went out from H.M.A.S. “ Sydney “ as a safety precaution to investigate the whereabouts of the crews.
On the fourth occasion the ill-fated whaler left H.M.A.S. “ Sydney “ at 5 a.m. She was last seen at 8.20 a.m. by the crew of the whaler which was returning from the previous day’s exercise. The returning crew spoke with the outgoing crew, gave indications of sea conditions ahead, and reported the vessel sailing well in moderate conditions. When the whaler failed to return on Thursday evening a motor cutter left H.M.A.S. “ Sydney “ as on previous occasions but could find no sign of the boat. ]n the early hours of Friday morning the cutter called at Hayman Island to inquire whether the boat had been sighted from there. The crew of the cutter was then told that late on the previous afternoon a boat from the island had set out to investigate a report from a visitor to the island of an object which could have been an upturned boat with three people surrounding it..
The island boat, however, had mechanical trouble soon after setting out and did not, in fact, carry out an investigation.
As soon as the cutter’s crew inquired about the missing whaler, the island boat set out again while the cutter returned to H.M.A.S. “ Sydney “ to report the situation. The cutter reached H.M.A.S. “ Sydney “ at 5 o’clock on Monday morning and a comprehensive search was under way an hour later. H.M.A.S. “ Anzac “ was sent to search to the east of Hook Island while H.M.A.S. “Sydney” and the island boat searched to the north-west of Hayman Island. The Royal Australian Air Force was asked to co-operate in the search and the first Neptune maritime aircraft was on task by 10 a.m. The whaler was not found until yesterday afternoon in circumstances which the Senate will know. These are all that are known of the facts up to the present.
A senior naval officer, Captain J. S. Mesley, is leaving Canberra this afternoon to begin a preliminary investigation into the tragedy and will go to the Whitsunday area to make an on-the-spot inquiry into all aspects of the mishap. The officer will also visit Hayman Island and H.M.A.S. “ Sydney “. A full board of inquiry will be held as soon as possible. At present, the search for the three missing officers will be continued. The setting up of such a board of inquiry is automatic and its establishment is not to be taken, in itself, as casting any reflection on the experienced and able officers in charge of the training exercise. As far as I am concerned, this board of inquiry will undoubtedly be held in public. At the moment, I am not prepared to indicate whether it should be held under a judge or not.
I should like to conclude, Mr. President, by stating that these young men are of the finest types of young Australians and the nation can ill spare them. Their loss to their families must be infinitely greater. All we can do is to express to those families our greatest sympathy and our admiration for the men whom they have lost.
– by leave - Mr. President, I am grateful to the Minister for the Navy (Senator Gorton) for saying, . in these tragic circumstances, that there will be an open inquiry. I think that /,, the people of this country will want an inquiry similar to that which was held in relation to an unfortunate civil aviation mishap which occurred some time ago and to which I referred, earlier, in asking a question of the Minister. According to the newspapers, there has been some criticism in connexion with this mishap amongst the people who live in the vicinity in which it occurred. I think it would be for the benefit of all concerned, particularly the Department of the Navy, for a full and open inquiry to be held. I join - and I am certain that every one else does - with the Minister for the Navy in expressing my sincere sympathy in the personal and tragic loss of the lads to their parents. Like others, J am also concerned at the great national loss that this country has suffered.
– by leave - I move -
That until the end of the present session, and in accordance with the provisions of the Public Works Committee Act 1931-1960, leave be granted to the Parliamentary Standing Committee on Public Works to meet during sittings of the Senate.
Mr. President, when the other place is dissolved, the Parliamentary Standing Committee on Public Works will not be able to continue its work until the new Parliament has assembled. There are two references which the committee is anxious to deal with before the Parliament rises. One relates to the telephone exchange at Lonsdale-street, Melbourne. The other relates to the air terminal for the Department of Civil Aviation at Launceston.
.- This is a motion of a novel character. My memory may be at fault, but 1 do not remember a motion of this kind having come before the Senate during my time in the chamber. I rise only because the relevant standing order, which prohibits committees of the Parliament meeting while the Parliament itself is sitting, is designed to stem the avalanche that threatens to overwhelm the Parliament. Only if a committee could make an urgent case for this permission to be given would I assent to any such motion.
Question resolved in the affirmative.
Debate resumed from 17th October (vide page 1268), on motion by Senator Gorton -
That the bill be now read a second time.
– The bill purports to ease the situation created by the insertion of section 52a in the principal act by an amending act of 1961. The Minister for the Navy (Senator Gorton), in his second-reading speech, had this to say -
The bill itself is short. But it is important that I sketch some of the background to it. 1 direct particular attention to the word “ some “, because I propose to sketch all of that background, which is not very lengthy, to direct particular attention to the parts of it that have been omitted by the Minister.
One of the main purposes of the amending act of 1961 was to make a grant of long service leave to workers in the waterside industry, but unfortunately the grant of that benefit was befouled by the simultaneous insertion in the act of section 52a. The second-reading speech of the Minister for Labour and National Service (Mr. McMahon), which introduced the 1961 bill, insulted and abused the Waterside Workers Federation and its leaders. I detailed some of those insults in my speech in the second-reading debate in the Senate on 16th May, 1961. 1 do not propose to read them now, but my comments on that aspect begin at page 1027 of “ Hansard “.
The new section 52a, introduced in 1961, provided that where on any one day an unauthorized port stoppage occurred, involving either 250 persons or one-third of the total number of workers at the port, the Stevedoring Industry Authority was required - not authorized, but required - to make a declaration and to identify by name the waterside workers taking part in the stoppage. The section provided that on the making of the declaration two penalties were to be inflicted on the waterside workers v.’ho took part in the stoppage. The first penalty was automatic suspension of entitlement to attendance money on the next four days, and the second penalty was a reductionin qualifying service for long service leave by up to 30 days, as determined by the Conciliation and Arbitration Commission. These penalties were imposed despite the fact that under section 36 of the act - the penalties section with which all honorable senators are familiar - severe penalties were already provided for an unauthorized port stoppage.
– On whom?
– On those who committed breaches of the section; on the waterside workers taking part in stoppages.
– Were they pecuniary penalties?
– No. The penaltics were suspension or cancellation of registration and suspension of attendance money. So far as T recall, section 36 imposed no pecuniary penalties. 1 want to make the point that, although there were already severe penalties in the act, these new penalties were introduced. But the 1961 act provided that recourse should not be had to bo:h section 36 and the new section 52a in respect of the one incident. There was not a duplication of penalties.
As the Senate will recall, in 1961 we most vigorously opposed the writing into the act of section 52a. We claimed that that would cause industrial unrest on the waterfront, and we warned the Government that would be the consequence of its action. I want to quote briefly from page 1029 of “Hansard” of 16th May, 1961 and the report of the speech I made on that occasion. 1 said -
Do not kick the waterside workers in the shins if you want them to co-operate wilh you. My advice to the Government is to reverse the process of its mental approach in this particular matter. If supporters of the Government did so, they might be amazed at the result they got. The first thing to be done in relation to the waterfront is to get the Government to understand the men. The men will not be stood over. That is a natural reaction of any fullblooded man, be he a member of this Parliament or a member of the Waterside Workers Federation.
That act did, in fact, cause enormous industrial unrest on the waterfront throughout Australia. The coupling of a benefit with new penalties imposed in respect of that benefit and others certainly provoked ‘ va’st resentment throughout the waterfront. It led to many port stoppages, and the very result that was predicted by the Opposition ensued.
– That might be explained on grounds other than divination.
– I repeat that if the Government understood the men it would never have attempted to persuade them to a course of action by penalties of this type - and the Government acknowledges that by the bill that is now before us. This bill is a confession of failure by the Government as to the policy adopted by it in relation to these penalties. That is proved, as I shall proceed to show, in several ways. Twelve months later - in November, 1962 - the Government introduced another stevedoring industry act curing many of the difficulties in the longservice leave legislation of 1961.. But it dealt with section 52a and directed the Stevedoring Industry Authority not to make any future declaration that would have the effect of involving waterside workers in loss of entitlement to qualifying leave. So there, one of the two penalties imposed in 1961 was lifted within the space of twelve months. That was a recognition by the Government that what it had done was not only wrong but had failed to achieve the desired effect. In doing that, the Government yielded to the very wise counsel of the Australian Council of Trade Unions, which stressed to the Government the injustice involved. I think that the Minister of the day acknowledged the potent influence that the submissions of the A.C.T.U. had had on his mind in that matter.
I wish again to refer briefly to comments that I made when the Stevedoring Industry Bill 1962 was before the Senate, because they are pertinent to a consideration of the bill now before this chamber. I think it was Senator Lillico who stimulated me into speaking of incentives. As recorded at page 1450 of “Hansard” of 15th November, 1962, I said-
I have not discussed this with the Waterside Workers Federation, but I put it up in answer to the Minister for Labour and National Service, who said in another place that there was no alternative to penalties. I say that there is. The Government might sec a most dramatic change come over the waterfront, if, instead of penalties - particularly the despicable, mean one on attendance money - it provided incentive to the men to keep working. If the Government stopped irritating and condemning them, I believe we could get peace on the waterfront, but the Government continues to irritate and frustrate the men with long-continuing penalties.
– What was the record as to stoppages in the twelve months following that statement?
– It was not good. 1 forecast then that there would still be industrial unrest. That was obvious to any one who understood the psychology of the men and their reaction to the type of penalty that was imposed. I shall come back to this matter shortly and show the reason for the dramatic improvement on the waterfront over the last four or five months which, as the Minister himself acknowledges in the course of his secondreading speech, has occurred.
On 15th November, 1962, again in reply to Senator Lillico, I recalled that I mentioned the vast improvement that had occurred in the coal industry due to the fact that long service leave had been made readily available. There was no penalty attached to it. Above all, the workers in the coal industry were given an incentive. If they worked ten consecutive shifts they were given a reward of pay for an additional shift. That dramatically altered the whole picture in the coal industry. It led to greater man-power production. It is true that there was greater mechanical production, but nevertheless, that provision resulted in an immeasurable stepping up of man-power effort, and the coal industry was completely revolutionized. That was done under an award of Mr. Justice Gallagher. I am stressing the point that inducements get results. Penalties never did get results and never will bring about increased industrial activity and production.
Once the 1962 penalties on qualifying service for long service leave were removed from section 52a, there still remained the penalty on attendance money of loss of four days attendance money for each day of a port stoppage. Of course, as I have already said, the waterside workers continued to fight against that penalty. The Opposition has always contended that it was- a particularly mean and iniquitous penalty. It meant that a man was deprived of the small amount - it is small in relation to wage rates to-day - of 24s. a day, payable as a meagre contribution to bare sustenance to enable him to exist, when he made himself available for work but no work was offering for him.
– How much per week does it average over the 52 weeks of the year?
– I cannot say. I simply say that the imposition of the penalties under the Government’s legislation resulted in some men accumulating debits against their attendance money to the extent that they were not eligible to receive attendance money for a period of four years.
– Because they had been involved in so many port stoppages.
– I repeat that it was a mean and iniquitous penalty on a payment that I may almost characterize as a dole.
The Minister, in his second-reading speech on the bill in 1961, in referring to section 52a of the act claimed that the section was designed to protect the community from incalculable damage by unjustified mass stoppages. In saying that that was the purpose of the bill he told the truth, because the purpose was not primarily to confer the benefit of long service leave. Admittedly, long service leave was introduced, but the main purpose of the Government in introducing it was to attach coercive penalties to it. There were penalties on long service leave and on attendance money, and the Government thought that would compel the men to come into line. The Minister has had a complete change of heart. According to the second-reading speech that is before us now, in referring to the conference of parties that took place on the matter in May last, the Minister for the Navy said -
The conference recognized that in some ports the operation of the section was no longer achieving the objectives the Government had in mind when introducing it.
Certainly, one of those objectives was to stop unauthorized port stoppages, but instead of stopping them it stimulated them and made them more frequent.
The bill before us seeks to dp two things. First, it proposes, .to suspend indefinitely the obligation of the Australian Stevedoring Industry Authority to make a declaration under section 52a so that for an indefinite period ahead the authority will have no power and no right to make a declaration concerning men taking part in an unauthorized port stoppage of the kind described and defined in section 52a. The second thing that the bill seeks to do is to provide that entitlement of a waterside worker to attendance money in respect of 17lh September, or any day thereafter, is not to be affected by any suspension of entitlement made before 17th September, 1963, unless the Governor-General by proclamation otherwise decides. I think that fairly sums up the purposes of the bill. In other words, if 1 may borrow the rather inelegant term used by the Minister in the second-reading speech, the bill seeks to freeze suspension of attendance money imposed before 17th September, 1963, whether the suspension was imposed under section 36 or under section 52a, while the suspension lasts. When this bill becomes law, all penalties on attendance money imposed up to and including 16th September will be frozen as from that date and will not be operative unless the Government causes a proclamation to be made by the Governor-General.
Of course, a new proclamation by the Governor-General could not only revive the power of the Stevedoring Industry Authority to make a declaration but also enable the reactivation of all the frozen penalties on attendance money. The section is not being repealed, lt is being rendered inactive at the present time. The authority may invoke it to impose penalties on qualifying service for entitlement to long service leave, or on attendance money. The section can be called into operation again, and all the penalties frozen up to and including 16th September become operative once more. That is the defect in this bill as the Opposition sees it. The Government keeps the threat of section 52a poised over the heads of the waterside workers. The threat is still there.
– I thought you would be making that point.
– It was obvious that I would be alluding to it. The honorable senator would not need any particular degree of perspicacity to see that I would do so, and I propose to stress the point to a considerable degree because this evil still remains in the legislation. I should say that it will be found that the men on the waterfront will react to the threat of attack in exactly the same way as they reacted to the direct attack. It is quite obvious that that is so. I should say that the threat which is still poised by the Minister has in it the seeds of industrial unrest. In the Opposition’s view, it has a very bad psychological effect.
– Do you indicate that they have not given us to understand that they will accept the terms of the bill and will give us peace on the waterfront?
– I shall come to that in a moment. First, 1 express regret that the Government did not make a more generous gesture by repealing sec’ ion 52a altogether. Why did the Government not trust the men? It would have obtained an infinitely better response if it had done so. If the Government had repealed section 52a and made a generous gesture by saying All penalties on attendance money will be cancelled as from 1 7th September “, it could have rested there. That really would have set the atmosphere for peace on the waterfront. The Minister for the Navy will tell me, as Senator Wright was suggesting to me, 1 take it, that at the recent conference between all interested parties on the waterfront the Waterside Workers Federation agreed to the procedure that is embodied in the bill. That is quite true. The Australian Council of Trade Unions agreed to the procedure, too. Everybody agreed to it. But in what circumstances did they agree? A person who is facing a loaded gun must compromise. The Minister for Labour and National Service went to the conference with a loaded gun - section 52.v - in his hand. He did not throw it away when he arrived at the conference; he did not even put it out of his hand. All that he did was to lower the sights a little bit. He retained the threat.
– He told you in 1962 that one barrel was blank.
– I do not know what the honorable senator means by that comment. There were two barrels, one of which the Minister emptied a year later - on himself. He thereby admitted how wrong he had been in loading it. He retreated from the position he had taken. The Minister and ‘the Government have missed a golden opportunity to win goodwill from workers on the waterfront. The Minister said, in his second-reading speech, that the legislation will bc reviewed in twelve months’ time. But in the meantime he proposes to retain the gun in his hand. Indeed, he may cause a proclamation to be made reactivating section 52a and all penalties on attendance money.
The Minister has told us - 1 am sure he is right - that since the time when agreement was reached following the conference in May last there has been a most dramatic reduction in port stoppages. As the Waterside Workers Federation has accepted the agreement in the terms and in the circumstances that I have outlined, and as the A.C.T.U. has given its blessing to the agreement, I shall content myself with the comments I have made so far. However, 1 have reached a number of conclusions about this bill which I shall summarize in this way: First, section 52a should never have been enacted. Secondly, this bill should never have been needed. Thirdly, this bill does not go far enough. Fourthly, section 52a should be repealed at once. Fifthly, the bungling and ill-judgment of the Minister and the Government are directly responsible for most of the industrial troubles on the waterfront in the past few years. Sixthly, the bill is a confession of failure on the part of the Government. Seventhly, whilst the bill is an advance in industrial relations, in one sense it represents not an advance by the Government but a retreat to Labour policy from the policy that it first set in train.
In the first sentence in his secondreading speech the Minister for Labour and National Service said -
This bill is unique.
I deny that. In truth, the bill constitutes only one more of a series of retreats by the Government to policies that have been advocated by the Australian Labour Party. Such retreats characterize the history of (he Government, particularly in recent years. I refer not merely to legislation but also. to administrative acts. It is most interesting to note how often, after criti cizing the policy that has been postulated by the A.L.P., the Government in due course has got around to adopting that policy.
– Are you supporting the bill or opposing it?
– I am supporting the bill, but 1 am opposing a number of the sentiments that were expressed by the Minister for Labour and National Service in his second-reading speech. I venture to say that 1 should have had very little to say about this measure were it not for the Minister’s statements in that speech. I nsk the honorable senator not to divert me from making the point I want to make about the plagiarism of the Government in adopting Labour policy from time to time. First, I mention the superphosphate bounty. That was granted by a Labour government, then repealed by the Menzies Government, and now it has been reimplemented. The modification of the economic measures of November, 1960, was another instance of the same thing. I remind the Senate also of the adoption by the Government of budget deficits. Deficits were recommended by the Labour Party and then adopted in a big way by the Government after it had criticized our suggestion and had claimed that such financial measures would be highly inflationary.
I mentioned also the disabled persons’ accommodation legislation which we considered recently. The Government was stimulated into introducing that legislation only because of pressure which had been applied by one of its own supporters and because of the actions of the A.L.P. I refer also to the legislation that was introduced earlier this year by the Minister for Labour and National Service to deny State professional officers access to the Commonwealth Conciliation and Arbitration Commission. The Government suffered the humiliation of having to withdraw that legislation and of adopting Labour policy on the matter. 1 remind honorable senators that the reduction from twenty “years to ten years of the residential qualification for pensions was part of Labour’s policy. To bring the matter right up to date, I direct attention to the substitution of the word “ dollar “ for the word “ royal “ vas the name of the major unit of decimal currency. The legislation now before us is only another instance of retreat by the Government from its own policy to Labour policy.
The Minister also* said in his secondreading speech - -
I have no wish to dwell on the past. Our eyes must be turned to the future.
After what I have, said about the Minister’s past in relation to . waterfront employment, one can well understand why he has used this form of words. He used those words as a shield to hide from the world and from us the direct responsibility he has for all the turmoil that has occurred on the waterfront in the past few years. We of the Opposition cannot let him adopt the role of apostle of peace on the waterfront - a role that he sought to adopt in introducing this measure. The Minister tried to avoid, in his second-reading speech and throughout the debate in another place, looking at the background to the bill. The role, in which we cast the Minister is that of a sinner engaging in a death-bed repentance. I do not say that repentance is a bad thing. It is a good thing, even on a death bed. But it is better if it is a little more anterior to the day of judgment. Of course, the day of judgment is very close; it will be on 30th November.
If the Minister thinks that he has achieved peace on t’he waterfront, let me remind him that the Government is the architect of certain provisions in the Crimes Act - I refer to the provisions that were formerly sections 30j. and 30k. - which, amongst other things, make the mere averment of a crime prima facie evidence of the offence. They provided for deportation of people not bom in Australia. There were other aspects to which we voiced objection-
– I rise to a point of order. I submit that the remarks of the honorable senator are completely irrelevant to the subject-matter of this bill.
– I disagree entirely with the point taken by Senator Wright. I submit that this is a bill to remove penalties in an industry. It is surely relevant to say that the Government should go further and remove^ other penalties that it has imposed on industry, not only under the principal act which is being amended, but also under other acts. Shall I proceed, Mr. Deputy President?
The DEPUTY PRESIDENT (Senator McKellar). - Yes. The point of order is not upheld.
– I have completed the references I want to make to the Crimes Act. I direct attention to the penalties that are still available under tha Commonwealth Conciliation and Arbitration Act. In that act are the penalties that the Government introduced in 1951 when it authorized the court to impose on all workers penalties for contempt. I suppose no trade union suffered more from those penalty provisions than did the Waterside Workers Federation. One aspect that horrifies me is that the fines, heavy as they were - £500 at a time - were a good deal less than the costs in which the federation was involved. The costs ran to a good deal more than the fines, and the fines ran into many tens of thousands of pounds. If the Minister is really repentant let him give consideration to the Commonwealth Conciliation and Arbitration Act. Let him deal with the sections of the Crimes Act to which I have referred. Let him not imagine that he is the apostle of peace, or that he will achieve complete peace on the waterfront, until he deletes all the penalties that affect the men.
This bill does not purport to effectuate all of the matters upon which agreement was reached at the conference that was held. The conference was between the various parties in the field, namely the stevedoring employers, the Waterside Workers Federation, the Australian Stevedoring Industry Authority, the Department of Labour and National Service and, of course, the Minister for Labour and National Service, who presided. The Minister emphasized that point in the second paragraph of his second-reading speech on this bill. I thought he might have left the reference to himself until he had named all the others concerned, but he did not do that.
The agreement reached included the provision that there is to be a new industrial relations committee comprising representatives of the employing companies and the waterside workers. That unquestionably would be an improvement. There is to be, the Minister tells us, a re-constituted board of reference. In what way it is to be reconstituted he has not said. I hope that the Minister for the Navy, when replying to the debate, will give us all the particulars he can regarding the new board of reference. These two matters, of course, cannot be dealt with by this Parliament. As a matter of constitutional law they have to go to the commission and bc dealt with in an application for a variation of the award.
– Could they not be dealt with under the interstate trade power? The legislation governing the Australian Stevedoring Industry Authority is partly supported by that power.
– Yes, but these matters are, in fact, dealt with in an award now, and 1 indicated that the appropriate place for them to be dealt with is in the commission, on variation of the award. I had not, until the honorable senator raised the point, strictly addressed my mind to whether or not we could legislate directly. 1 rather thought that we could not, but I do not argue that proposition at this stage. At all events, if these are good provisions, why was not a conference of this nature held long ago? Why were not these things done long ago if they are factors that conduce to peace on the waterfront?
Then we come to what the Minister says about the proposal to meet disabilities that arise through the mechanization of ports. The only criticism of that is that it was not clone years ago. Something should have been done long ago to provide for workers who are displaced and to meet the costs of their removal to other ports where their services may be required. The conference affirmed that proposal as a principle, and I have no doubt that legislation will be brought in to deal with that matter in the future. That is another long overdue reform. In short, the Minister is acknowledging, in this bill, that many things being done now that have had a dramatic effect in breaking down stoppages at the various ports should have been done years ago. Instead, the Government kept adopting the wrong psychological approach.
I was surprised that the Minister presented his speech without making some special acknowledgment, at least, of the major part that the Australian Council of
Trade Unions played in reaching agreement at the conference. It is true that the Minister expresses the hope that the degree of co-operation that prevailed at the conference will continue, but I thought that he might have been ready to express particular pleasure at the help that he was given by the A.C.T.U. in arriving at these new arrangements.
However, on behalf of the Opposition, having expressed my thoughts, I indicate that we support the measure and sincerely hope that the conference agreement will be completely effectuated and will lead to industrial peace, not merely for the sake of waterside workers but also for the good of the nation.
.- In asking for support for this bill the Government is asking those who supported the previous provisions - which this bill proposes to suspend - to reverse their attitude of 1961. That fact wants to be made clear, because if those on the Government side who voted for the provisions in 1961 now support the suspension of those provisions they must have had experience in the meantime to guide them, or they must have the sense of confession of failure to which Senator McKenna Has referred. I oppose this bill. I oppose the principle of administration involved in it. I oppose it because I think that it is going to produce, not meritorious, but most mischievous, tendencies on the waterfront. Nobody on this side of the Senate who is concerned about the increasing cost of stevedoring work in relation to meat arid wool over the last twelve or fifteen years can honestly think that the provisions expressed in this bill are appropriate.
Senator McKenna has chided the Minister with living year by year on the crumbs that fall from the Labour Party’s industrial waterfront table, or, to put it another way, he is accusing the Minister of accepting, year by year, in a backward fashion, the steps advocated by the Labour Party. In 1961 the position was this: The Government had gone out of its way to provide, not only in that year but in the years theretofore, incentives to the work force on the waterfront. The very institution of attendance money had that object in a marked degree. This was first introduced’ by ‘ a
Labour government and was carried on and expanded by the present Government. Then, agencies operating in our time devised measures which were implemented by the present Government. I refer to annual leave, sickness benefits, and, later, long service leave.
The Government, in exasperation, decided that two of these benefits should be forfeited if waterside workers took part in an unauthorized major port stoppage involving 250 men or one-third of the strength of the labour force, whichever was appropriate. The Labour Party jumped on that provision and said that it was a heinous penalty to be imposed on people who took part in a concerted Waterfront stoppage. At the time, I supported the imposition of these penalties, and I found great encouragement in the fact that the next succeeding annual report of the Australian Stevedoring Industry Authority stated that the authority felt that the provision had added an element of effective discipline in the industry. I deplore the recurrent surrenders by the Minister to the advocacy of the Labour Party and to the turbulence of the waterfront.
The Minister has asked us to rely upon the agreement and the assurances that emanated from the conference that he initiated and presided over in May last. He seems to entertain the belief that now, at last, a co-operative attitude will emerge on the waterfront. How far can one’s credulity extend? I remind the Senate that Senator McKenna said in the course of his speech on this bill, “ Let the Minister not imagine that he will get complete peace on the waterfront until he repeals all industrial penalties.” So those who support these provisions on the will-o’-the-wisp idea that they will bring peace on the waterfront have the assurance of Senator McKenna directly to the contrary.
However, Senator McKenna should not claim any credit for divining that industrial unrest on the waterfront would follow the enactment of the 1961 legislation. Industrial unrest does not follow as a matter of logic; it is fomented by agitation. That unrest is increased by political leadership in the wrong direction. Dissension on the waterfront is activated by speeches such as we have listened to to-day. Senator
McKenna referred to penalties in the Crimes Act and the Conciliation and Arbitration Act, so all on the waterfront who read his speech can say, “ We will be amply justified, in the opinion of Senator McKenna, if in the future we carry on our campaign by the same means as we adopted in the twelve months preceding May last.” When Senator McKenna, in response to my interjection, said that the record of stoppages during that period was not good, he understated the situation. The record of stoppages during that twelve months was conspicuously bad and out of line with any of the previous five years that I can bring to memory.
It is a matter of intense regret to me that concerted action on the waterfront of Melbourne and Sydney during the first few months of 1963 should have produced legislation of this type, and my regret is heightened by Senator McKenna’s statement that the Minister is not to imagine that he will get complete peace on the waterfront until he repeals all industrial penalties. I feel that when we established the Australian’ Stevedoring Industry Authority as the governing body on the waterfront we could only have expected it to achieve efficient performance if its authority were maintained. It had to operate in a complex situation. It had to operate in a very turbulent industry. The Conciliation and Arbitration Commission, deriving some authority, from recollection, from the interstate trade power, but also some from the conciliation and arbitration power, has a most complicated system to administer on the waterfront. Clearly, the Stevedoring Industry Authority cannot expect to be in the slightest degree efficient unless its authority is maintained. When the 1961 legislation laid down that participation in a substantial port stoppage would involve, first, suspension of four days’ attendance’ money and, secondly, diminution on a daily basis of entitlement for long service leave, there was provided some means of qualifying the incentive benefits that had been conferred upon the waterside workers in earlier years. But now the authority is being denied these means of qualifying the benefits.
I believe the bill represents weakness and impotence in administration. So far from producing efficiency and economy on the waterfront, we have had it from the Leader of the Opposition that the Minister is not to imagine that that result will accrue until all industrial penalties are repealed. It is for those reasons that I regret the provisions of the bill and oppose it.
I want to add one express reference to the provision in the bill for the payment of removal expenses of waterside workers shifting from one port to another, ls this to be made a general industry provision so that the Commonwealth Government will pay the removal expenses of a man’s family when his work in a particular port has become redundant? I rind myself totally unable to agree to such a provision, selecting and prefering members of the waterfront industry for that privilege.
. -Mr. Acting Deputy President, I support the bill. I am rather amazed at the remarks of Senator Wright. With great respect, I ask him how he can expect peace on the waterfront if he delivers speeches such as that which he has just delivered. We must all be prepared to understand that with economic conditions as they are we are not living in the bad old days when men on the waterfront were treated like footballs. In the early part of my life I was engaged in work on the waterfront. Those who wanted work had to attend the waterfront about 7.30 a.m. and stand in front of a man who would select those whom he wanted almost as if they were dogs. Those who were not engaged would have to return about 2.30 p.m. and go through the procedure again. In view of the humanity which Senator Wright sometimes displays, surely he does no: believe that in 1963 we should return to these conditions. Opposition senators have told the Government that it cannot hold the whip over men in certain industrial organizations. I am certain that every honorable senator - even Senator Wright - wants peace on the waterfront under fair conditions.
Senator Wright said that costs in the wheat and wool industries had increased a great deal because of the actions of waterside workers. It is true that costs of production have increased, and the factor mentioned by Senator Wright may have been one cause. But he failed to mention that since 1952 costs have increased in nearly every industry. If he wishes to contend that the waterside workers have been responsible for all increased costs perhaps he might like to say so in speaking to the motion for the third reading of the bill. At the moment, I am concerned only with what I heard him say during his speech on the motion for the second reading. He said that waterside workers receive attendance money, annual leave, sickness benefits and long-service leave. Attendance money is a peculiar requirement of the waterfront because it is necessary to keep a certain number of men in the industry in order that we may ship our exports and unload our imports. But is there any other industry which does not now enjoy annual leave, sickness benefits and long-service leave? I regret that Senator Wright seems to have an obsession against this particular class of men.
Senator Wright said also that it is not possible to obtain the work that he desires to be performed on the waterfront without effective discipline. 1 should like to know what he means by the word “ effective “. You cannot kick these men about. The waterside workers and the coal-miners have been in the forefront of industrial movements in this country. I know that they have caused all of us worry at some time or another. But let the black-coated workers understand that if the waterside workers and the coal miners had not been in the vanguard of the fight for better conditions the black-coated workers would not be enjoying their present conditions. Senator Wright said that industrial unrest on the waterfront is not the outcome of logic but of agitation. He has never worked on the waterfront. He has never known what it is to walk to work in the rain. These men are human and they are good men. They want only a fair go. They are essential to the economy of this nation as are all other workers. The only difference between them and others is that they will not be kicked about. I do not think that the vast majority of senators on cither side of the chamber wants to kick them about. I do not agree with the suggestion that all stoppages on the waterfront have been caused by agitation. As I have said, I gained some knowledge of the waterfront in the bad days. Surely these people are as reasonable a body of workers as any others. The difference between them and the others is that they will not put up with bad conditions. The only asset they have is their labour. Stoppages on the waterfront are not the result merely of a desire to agitate.
I want peace on the waterfront as much as anyone. I live in a suburb in which there is a great number of these men, although a large proportion of them have shifted to the newer suburbs in my city. However, 1 find them all just as logical as any other body of manual workers. They want to work, just as everybody else wants to work because, if they do not, they cannot keep their wives and children. Like the coalminers, when they feel that they have a grievance they are prepared to do something about it. Honorable senators should not imagine that the cause of all the troubles is on one side in this industry or in any other. The workers might be wrong at times but, at other times, the other side is wrong. Three parties are concerned in this bill: The Government, the waterside workers and the ship-owners. I am glad that they all appear to have been able to reach some agreement on this matter. Let us hope that the bill will do all that we want it to do. t join in the opinion expressed by Senator McKenna. I think that the penal clauses of the waterfront legislation arc obnoxious. I should like to see them abolished. However, I hope that this bill will at least enable peace to be kept where it is of vital importance to the economic welfare of the nation. I hope also that in calmer moments my friend, Senator Wright, will not be as hard on the waterside workers as he appears to be every time a bill is introduced affecting their conditions.
– in reply - I do not propose to occupy much time in replying to this debate, but some points to which I should like to direct attention have been raised. Before I do so, I should like to indicate that it seems to me that Senator Kennelly has launched an entirely unjustified attack upon Senator Wright and upon the beliefs which, I think, Senator Wright entertains. There is no evidence to suggest that Senator Wright wishes to kick waterside workers around, as has been constantly suggested. To the best of my knowledge, what Senator Wright has indicated here - whether or not all his beliefs are accepted is a different matter - is that he is perfectly happy to see waterside workers employed on fair conditions. I think that when Senator Kennelly suggested that they be employed on fair conditions I heard “Hear, hear” from Senator Wright. What Senator Wright does require is a situation wherein, fair conditions having been agreed between the two parties, both parties adhere to that agreement and carry out those conditions. If that is held to be cracking the whip over waterside workers, it is not my idea of cracking the whip, and I do not think that an attack on those grounds is justified.
The Leader of the Opposition (Senator McKenna) asked one or two questions. One was as to the possibility of having some incentive scheme in this industry and whether attention has been given to this. The report of the conference indicates that it began to give some attention to that matter but that the Waterside Workers Federation refused to go on with the discussions because it did not want an incentive scheme to be introduced, this being against the policy of its federal conference. Also, I was asked by the Leader of the Opposition what was envisaged by the reconstituted board of reference, to which the Minister referred. I understand that this means that if there is some dispute which a committee cannot settle it goes either to the present board of reference consisting of one person if both parties are happy with this course - or to a reconstituted board of reference, consisting of a person other than an officer of the Australian Stevedoring Industry Authority, if either party is not willing that it should go to the present board of reference.
The general coverage which Senator McKenna gave to this bill seemed to me to deal with a great many subjects not directly connected with the bill, but perhaps connected in some close way with an election campaign which may be coming up shortly.
– May be.
– May be. I hope that the honorable senator will pardon! me
If 1 am nasty-minded enough to suggest that this is probably so. Therefore, I shall not devote much time to those general remarks at this point. I would say that the bill can in one respect be claimed to bc unique. The Leader of the Opposition said that it could not be. As far as I know, this is the first time a bill which seeks to put into effect an agreement amongst all sections engaged in the industry has been introduced. I do not know of any other occasion on which the Australian Council of Trade Unions, the stevedoring employers, the Waterside Workers Federation, and the Australian Stevedoring Industry Authority, have mct and agreed and have brought into this Parliament a bill to give effect to their unanimous wishes. That is the respect in which the uniqueness of the bill arises. Nobody can tell whether the bill will have the effect that is hoped for by all concerned. Certainly, all the parties concerned believe that there is a prospect that it will. Senator Wright said that disciplinary power which the Australian Stevedoring Industry Authority needed had been taken from it, but even that authority is in agreement with the proposals contained in the bill.
I believe that any government seeking to attain as much peace as possible on the waterfront - I interpolate to say that surely even Senator Kennelly would not deny that some of the disruptions on the waterfront are caused by definite agitation - would be criminal if it did not seek to put into effect the unanimously agreed proposals of all of the people concerned. This agreement extends in the case of the authority to the diminution of disciplinary power, and in the case of the federation to retention of suspended section 52a in the legislation.
All parties hope that the measure holds the seeds of a better relationship on the waterfront. Time will tell whether this is so, and time must be given a chance to test the considered views of all of those who ought to know most about the industry in which they work.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate. ‘ !3
Debate resumed from 15th October (vide page 1109), on motion by Senator Paltridge -
That the bill be now read a second time.
– This is a bill to provide a minimum cover for persons who are travelling as passengers by air in the service of, or for the purposes of, the Commonwealth and authorities of the Commonwealth. The provision is that there will be cover, whether or not such persons are employees, whether they are travelling in Australia or abroad, and whether they are travelling on aircraft operated by the Commonwealth or commercial airlines.
The bill is intended to fill certain gaps which arise as a result of the operation of existing legislation of the Commonwealth, namely, the Civil Aviation (Carriers’ Liability) Act. In this respect it represents some compliance with the international obligations which Australia has assumed, lt will provide some measure of uniformity for passengers in aircraft, insofar as the constitutional authority of the Commonwealth extends. Unfortunately, because the Commonwealth does not have constitutional authority to enable this Parliament to provide in a rather simple way for remedies and insurance for persons travelling by aircraft, legislation of this rather complicated kind is necessary. No one can be clear on all points in this bill. There are many matters of obscurity. Many legal points are raised. Questions come to mind as to whether certain provisions are necessary and how certain provisions fit in with other enactments of the Commonwealth, such as the Civil Aviation (Carriers’ Liability) Act and the Judiciary Act. I foresee that there will be many problems, both judicial and executive, in the administration of this legislation,. I do not think it is desirable that we should endeavour to solve these problems at this stage. The Opposition does not oppose the bill but I intend to move as an amendment -
Leave out all words after “ That “, insert “ the bill be withdrawn and redrafted to provide for a minimum payment of £7,500 on the death of a passenger and to remove any limitation on the amount of damages which may be recovered by an injured passenger or by dependants in respect of the death of passenger “.
Leaving aside all technical matters which are raised in this bill - and, as I indicated earlier, there are many of them - and no matter what might be said on this side of the chamber or on the other side, many obscurities will remain in the bill. One thing is clear: The bill is an endeavour to do justice to persons who might be injured when travelling on an aircraft, or their dependants in the case of the death of a passenger. In some ways, a measure of justice is achieved.
The core of this bill is the provision that people will be able to travel in the knowledge that if they are injured or if they die there will be no necessity for them or their dependants to prove that death or injury has been caused by negligence. That is a very desirable provision, because we know that with the complexities attaching to modern aircraft travel it is very difficult in most cases to determine what happened in an aircraft crash - which would be the main instance in which the provisions of this law would be invoked. That would require a tremendous investigation, one beyond the resources of an individual who might contemplate bringing an action to recover damages. Certainly one would think that ordinarily it was beyond the competence of the ordinary widow or dependants who might be in the situation where they need damages. That much is an advance, and I think it is one that will be applauded.
That provision is consistent with the approach that has been developed in the international conventions concerning liability for damage caused by aircraft, and it is one which is also emerging in other spheres of our society. It is consistent with the approach that is developing even- in regard to road accidents. One asks whether a person should really have to show that there has been some negligence because, after all, one can predict statistically with a fair degree of certainty that there will be a certain number of road accidents. These just happen, and one might say that so many persons are going to be killed in a year on the roads of New South Wales, and so many will be injured. A multitude of causes bring about these casualties. There are the state of the roads, human frailty, and so on. Why should the right to recover damages depend on the establishment of some kind of negligence when one knows that really the accidents are a consequence of the introduction and use of vehicles on the roads. Statistically, it is known that there will be so many accidents, and that so many persons will be hurt. The same kind of approach has been developed more rapidly in regard to aircraft and perhaps it is seen more clearly that an aircraft crash is a calamity. It affects the whole of the community. It can happen to any one. It is a national disaster. When persons are involved in an aircraft disaster we should not have to be concerned with establishing some kind of negligence on the part of the operators of the aircraft in order that the persons who are injured by this calamity should be able to obtain compensation for the injury they have suffered.
There are other national reasons why we should not require persons to establish such negligence. The endeavour to establish negligence and perhaps even, in a difficult case, to enlist the sympathy of a jury or other tribunal, may be prejudicial to the national interest. It may tend to lessen the confidence of persons in the airlines of the nation. From many points of view it is desirable that when these national disasters occur the persons who seek compensation should not have to establish that there had been some negligence. Of course, if you are going to do that in relation to the crash of an aircraft, similarly one must extend the principle to cover injuries, which might be minor, that are sustained in an aircraft. There is no point in drawing some differentiation between major and minor injuries. That is a principle with which we agree, and I would think that most of the community would agree with it.
But there is another principle in this bill. It is one with which we disagree and which the amendment is aimed at removing. That is the provision in clause 8 which states -
The maximum liability of the Commonwealth or a Commonwealth authority under this Part in respect of any one person, by reason of his death or injury, is Seven thousand five hundred pounds.
We say that the provision is arbitrary in its application. It may be unjust. No doubt, in many cases it will be unjust. It is indefensible. ?
Let us take the position, first, of an injured person, or the relatives of a person killed in an aircraft accident, where the extent of the damage was slightly less than £7,500. In that event, the person or persons concerned might recover full compensation, or full restitution in the eyes of the law for whatever injury had been suffered. That is justice. Now, let us take the case of a person who had been injured, or that of the relatives of a deceased person, where the damage suffered was more than £7,500. It may have been £10,000, £15,000, £20,000 or £30,000. Why should such a person, or the relatives of such a person, receive only part compensation, or only part restitution? Where is the justice in that position? If we are to say, “Well, that is too much for the Commonwealth to bear “, why do we not have a provision which states that the Commonwealth will pay only half the damages that have been suffered, or that it will restore to the injured person or the relatives of a deceased person only half of what he or they ought to receive by way of full restitution? At least that would be more equitable. Why set a limit which means that persons who have suffered most grievously will not receive full restitution?
Provisions of this kind are completely inequitable. They exist in some statutes and have excited the criticism of all who have had to do with them. They produce injustice to a degree which shocks the conscience. One can imagine that many widows would be entitled to compensation of more than £7,500. The cases which are heard day by day in the courts of New South Wales show that often widows with children, especially young widows, recover amounts in excess of £7,500 by way of damages for the injury they have suffered, under the provisions of the Compensation to Relatives Act or, as it is popularly known, Lord Campbell’s Act. Of course, there are similar provisions in most parts of the English-speaking world. No doubt the figure of £7,500 has been selected in order to produce uniformity with the other legislation I have mentioned, but nevertheless the provision is unjust. This is a figure which would be very often exceeded in practice. Even if it were only sometimes exceeded, any such limit is quite unjust, inequitable and arbitrary. Why should there be any limit such as this in relation to the situations which are dealt with in the bill?
The measure proposes to provide for what is called uniform cover. It was so described in the second-reading speech of the Minister for Civil Aviation (Senator Paltridge), but of course it is not uniform cover. I think that is recognized implicitly by the Minister in his reference to the exception in relation to persons covered by the Commonwealth Employees’ Compensation Act. The rights of those persons are preserved, but of course they are not cumulative. As I understand the position, it might well be that Commonwealth employees were entitled to more than the limit of £7,500. Of course, if they were not, there would be a tremendous outcry from such persons. It would mean that their rights were being cut into. I am subject to correction by the Minister in relation to the provisions of this bill, but as I understand them, Commonwealth employees still will be entitled to damages in excess of the limit of £7,500. No arguments have been put forward which justify this provision on the ground that it is equitable. It is not equitable. It is quite unfair to those who may be most severely affected. It is the view of the Opposition that provisions of this kind should not be inserted in legislation. No such limit should be set.
If a person is injured on board a Commonwealth aircraft, or in the other situations covered by the bill, why should he not recover to the full extent of the injury that has been caused to him? Why should not the children of a deceased passenger receive full compensation? Why should the rights of children and widows be limited in this way? Why should the rights of persons who may have suffered the most shocking injuries be limited in this way, although persons who have suffered injuries which are not so severe may be entitled to recover the full amount as long as it is less than £7,500? We of the Opposition say that that is demonstrably wrong and that the provision should not be persisted with. We say that, in addition, there ought to be cover of £7.500 as a minimum payment on the death of a passenger. We think- that that should he provided, in effect, by way of insurance.
In the case of an aircraft crash a person may be covered by insurance. We all know that there are insurance policies which can be taken out to cover a person to the extent of thousands of pounds, for the payment of a few shillings.
Such policies can bc taken out at airports in various parts of the world. There is then automatic cover of the amount provided for in the policies. The Commonwealth should say, “ If you go on board a Commonwealth aircraft or other aircraft in the circumstances covered by the bill, whatever happens your estate will benefit to the amount of £7,500 “. We know that so far as the claims of relatives are concerned, if the £7,500 went into the estate of a deceased person it would go to the benefit of his relatives and would be taken into account in any action on his behalf for damages under this bill; so that the cost to the Commonwealth would not be as great as it perhaps might appear at first sight. Such a provision would serve a number of useful purposes. It would be an assurance to a person going on board an aircraft, in the circumstances covered by the bill, that whatever else happened there would be £7,500 added to his estate. That amount would be available to go to his relatives or to meet liabilities that he had incurred. It would be there to cover all the consequences. The provision would afford some comfort to the person concerned and make him feel that at least he was protected. Those who depend on him, whether they be relatives or otherwise, would be protected to that extent. The provision would, be useful in the case of persons who. because they were outside the country or for other reasons, might not be able to bring actions under the existing provisions of the bill. Instead of taking steps to prove the extent of their dependence on a deceased person, they could rely upon getting from the estate their share of the £7,500. In many instances there would be no necessity for persons to make claims against the Commonwealth. Instead, they would bc able to rely upon what was available by reason of the minimum payment of £7,500 upon the death of a passenger.
I do not propose to deal in detail with all the technical matters that were outlined by the Minister in his second-reading speech. Some of them have been analysed in another place. It seems to the Opposition that the core of the bill lies in the matters that we have raised. I now move -
Leave out all words after “That”, insert: - “ the bill be withdrawn and redrafted to provide for a minimum payment of £7,500 on the death of a passenger and to remove any limitation on the amount of damages which may be recovered by an injured passenger or by dependants in respect of the death of a passenger.”.
.- This bill deals with a technical, legal subject, but it is very important in the eyes of anybody who has a sense of fairness in relation to people who are injured or killed by aircraft. The substitution of absolute liability for fault liability is a familiar topic of controversy to-day amongst persons who think of justice in its relation to the law. In other words, there is a school of thought which believes that, whereas in most cases persons should recover damages only when they can prove that the defendant has been guilty of some fault - some want of care, some neglect - the defendant should be subject to a general system of insurance and, if he has a special relationship with the plaintiff, the plaintiff should be entitled to recover full damages without proof of fault. That approach is advocated in the motor car world, where insurance cover has become general and to a large extent compulsory in the States. Respectable schools of thought advance the viewpoint that the plaintiff should recover unlimited damages whether the defendant has been at fault or not. That principle has not yet been established in the general field. It was introduced into the workers’ compensation field half a century ago, and it was provided that no fault liability need be established. But the compensation was severely limited; it certainly did not cover the full measure of damage.
I hope that the Senate will prove its worth by referring this legislation to a select committee rather than by agreeing to the motion proposed by the Opposition. I believe that to refer the bill to a select committee would be the more appropriate course to adopt. I wish to advance a few of the reasons for that belief. I cannot promise to be very brief. I venture to suggest that the Government in considering this legislation, is labouring under a- com.plete misapprehension and that, iri its efforts to deal with accident or fault liability, it has introduced a measure which is really an insurance bill. I remind the Senate that in 1959, when adopting the Warsaw Convention provisions, we imposed upon interstate and foreign carriers absolute liability which was not to exceed £7,500 in the case of any one passenger. We legislated for a limited absolute liability which was reducible in the case of death where the unhappy dependant had received some benefit from the assets of the deceased person’s estate.
I repeat that we imposed upon those carriers an absolute liability which accrued without proof of negligence but which was subject to an upper limit of £7,500. We deprived dependants or injured passengers of any redress in any case; they had to take that absolute, limited compensation in substitution for any other remedy. To my sense of justice, to deprive a dependant or an injured passenger of the full amount where there was gross negligence, criminal negligence or negligence to which the carrier was privy was heinous. I ask the Senate to note that, when we in Australia introduced limited liability in respect of merchant shipping - it was first adopted approximately two centuries ago - we excluded the case in which the shipowner was privy to any fault. But that is not the case here. The management of an airline organization can have its attention drawn to some mechanical defect and then, because of the difficulty of replacement, can take a deliberate risk and order the aircraft to be retained in service for a certain period. Yet, under the 1959 legislation, it is exempted from liability in excess of £7,500. The 1959 legislation called for review. The Australian Labour Party supported an attempt that was made to have it referred to a select committee. In that bill Parliament substituted limited liability of £7,500 for full liability where negligence by the carrier could be proved, and it did so even where the carrier was guilty of gross negligence or criminal negligence. It is not always impossible to prove negligence on the part of an air carrier.
I take exception to the phraseology of the Minister’s speech when introducing this bill. When referring to this matter he most inappropriately, and. in language calculated to mislead - I pause to emphasize” that for the attention of the advisers who probably prepared the speech - said -
It is unfortunately true of modern aircraft accidents that it is seldom possible to determine the cause conclusively.
That is a completely irrelevant and misleading observation. Nobody with the slightest understanding of law court proceedings would say that conclusive proof is to any degree relevant. Proof that there has been negligence, on the balance of probabilities, is the relevant criterion. It is particularly unfortunate that the Minister’s speech should carry such a blemish, which in a lay assembly is calculated to mislead. The principle of limiting a person’s recovery of damages may have very grave defects, even in the case where the aircraft carrier can be proved, on a balance of probabilities and not conclusively, to have been guilty of negligence or even of gross negligence. It is revolting to have him excused in a case where he can be proved, on balance of probabilities, to be guilty of criminal negligence which under criminal law would convict him of manslaughter and in a civil action, if the claim were proved to the degree of balance of probabilities, would entail a verdict and the award of damages against him.
But, Mr. President, what are we doing here? We are importing all those vices into a bill. We are imposing a liability of an absolute character on the Commonwealth when the Commonwealth operates an aircraft, but we are limiting the Commonwealth’s liability to £7,500. We have passed through a century of infamy in Australia in our railway legislation as a result of establishing in the provincial days of the economy about the middle of last century, provisions limiting the amount of damages that could be obtained. There may have been a case for limiting each individual claim to, I think, at that time £2,000. That amount would be worth, I suppose, £15,000 to-day, but do not judge my speech on that calculation; I just throw that challenge out as I proceed. I repeat that we have gone through a century of infamy as a result of limiting the damages that could be recovered from government railways by a passenger to £2,000 when, if I were a public carrier, I would have to bear unlimited liability for acts that caused death of injury. The notion that operation of services by the Crown confers the right to limit liability is completely discredited.
The Minister, in his second-reading speech, said -
Careful consideration was given to the change which the bill will make in the liability of the Commonwealth as an operator of aircraft. At present the amount of the liability is unlimited-
That is to say, before the introduction of this bill, if the Commonwealth operated an aircraft and by fault - ordinary negligence, gross negligence or criminal negligence - caused death or injury, the amount of its liability was unlimited. Which of us are prepared to stand up and be counted, and go through the scarifier of public criticism in the press, for opposing such a change? Some of us have limited our criticism of these things to statements on the floor of the chamber where we cannot escape our duty, but the time is coming, if this sort of legislation continues to be avalanched on the Senate, when we will have to consider it our duty to carry our criticism into the country, and see that the country understands the enormity of some of the things that go on here unnoticed. The Com.monwealth, in a case of negligence - gross negligence or criminal negligence - is seeking to limit its liability under this bill to £7,500. I hope that all honorable senators will see that the Commonwealth is never permitted to do so. I suggest that the Senate see that this provision goes, not out into the cold, but into the consideration of a select committee of the Senate.
Let me consider this from another angle. Tn a case where a widow’s husband has been a fruitful earner and has accumulated assets, there is a likelihood that the £7,500 damages will shrink to almost nothing because, unless I completly misunderstand the basis on which this bill is framed, the loss which the court will construe as the net loss is the full amount that the widow will be able to recover. If it can be shown that the earnings that her husband was likely to make available to her during the expectancy of his life - say the amount is assessed at £10,000 - are more than offset by an estate that he leaves to her - say it is worth £30,000 - her recovery will be nil, or anyway negligible._____
Then lcl us consider the case where a Commonwealth aircraft was carrying - as in many cases it would be - Commonwealth civil servants entitled to superannuation benefits that this Parliament has established on the basis of a contribution from the public exchequer supplemented by individual contributions. As I understand the position at present, the benefits received from the superannuation fund would not be taken into consideration in reducing the £7,500. I refer the Senate to section 15 (b) of the Civil Aviation (Carriers’ Liability) Act of 1 959. What justification is there for excluding from the benefits of this bill the man who is entitled to a repatriation benefit? In the 1959 act we provided expressly that social service benefits, repatriation benefits and superannuation benefits should not be offset against the £7,500 compensation provided. In this bill, clauses 6 (2.) and 11 (3.) take care to exclude any man injured or killed in circumstances which would entitle him or his dependants to a repatriation benefit. I challenge any public figure who supports preferential treatment of the civil servant as against the wartime soldier. I submit that the whole of that provision has come about because of a complete misconception of the conditions upon which this bill should be based. I submit that insofar as it deals with the activity of the Commonwealth as an operator of aircraft, it should impose on the Commonwealth absolute liability for every passenger, whether he is a civilian or a soldier.
Let us take our servicemen in Malaya as an example. Suppose an aircraft operated by the Commonwealth left Sydney and it had aboard a regular soldier and also a serviceman who was going to the front line in Malaya to take up his duties. If the aircraft crashed between Sydney and Brisbane, the regular soldier or his dependants- but for a provision that I shall mention in a minute - would be entitled to recover compensation; so would the active soldier or his dependants. However, let us assume that the flight goes on in stages to Malaya. At what stage are we to say that the active service soldier is to be excluded from the compensation to which his comrade in the regular service is entitled? Are we going to say that just because an aircraft accident happens in a front-line area which, by proclamation, is made the subject of repatriation benefits, the active service soldier and his dependants are to be deprived of the advantage of this legislation whereas in the 1959 act we carefully excluded repatriation benefits from being even a reduction of liability?
In the event of an Ansett-A.N.A. aircraft crashing while carrying an active service soldier from Sydney to Brisbane his dependants would recover compensation, unreduced by repatriation benefits. If the Ansett-A.N.A. aircraft crashed at Kuala Lumpur, under the 1959 act the soldier’s dependants would recover compensation, unreduced by any repatriation benefit. However, that is not so with a Commonwealthoperated aircraft. In this case the civil servant has an entitlement but the active fighting servant of the Commonwealth is excluded.
I turn now to the case that is purported to be provided for by the bill. I refer to the liability imposed on the Commonwealth when the passenger is on an aircraft which is operated not by the Commonwealth but, let us say, by a Japanese airline flying to Kuala Lumpur in Malaya. The passenger could be an ambassador coming home from Djakarta at the Commonwealth’s expense, a member of the Commonwealth Public Service travelling on Government business, or a member of a trade mission or any other special mission sent abroad at the Commonwealth’s expense. I have in mind a mission such as that undertaken pre-war by Sir Frederick Eggleston who went to China. Also - and I do not give this instance to attract special interest from members of Parliament - the passenger could be a member of Parliament travelling at the expense of the Commonwealth. I hope that we will be interested in other people’s welfare, as well as our own, legitimate as that is. A passenger in one of the categories I have cited may be flying outside Australia in an aircraft in respect of which the Commonwealth has no responsibility whatever. The only reason why it occurs to the draftsman of this bill to include such a provision is that there has been a practice for the Commonwealth quite properly to make ex gratia payments in such cases. This has been a form of insurance. This bill now seeks to impose a liability on the Commonwealth in respect of an accident occurring in a foreign aircraft over which the Commonwealth has no responsibility whatever. That is a subject-matter that is proper for insurance legislation for the benefit of Commonwealth servants and other people travelling at Commonwealth expense. In that way we would get rid of all these cumbersome and befogging provisions that we face in Part III. of this bill, for which I challenge the Minister to produce a precedent. I refer to those provisions about the subrogation of liability which state that a claim shall be reduced by the amount of any insurance that a passenger may have.
In clause 14 (2.) there is a provision relating to insurance that has been effected by the Commonwealth or by the deceased or injured person that is referable to an allowance granted by the Commonwealth or the Commonwealth authority. I ask honorable senators to picture what is meant by the expression “ insurance . . . that is referable to an allowance granted by the Commonwealth “. This is what I suggest: A man is given an allowance of, say, £100 or £150, each year to give him adequate and comprehensive cover for the extra risk he takes while travelling by aircraft. As most prudent people would do to-day, he would arrange for insurance cover. Alternatively, the Commonwealth could provide an authority to procure insurance cover, or could establish a fund out of which insurance could be paid straight out. This benefit has no analogy to the liability compensation provided in the 1959 act. The reason is that in the case to which I refer, the aircraft is operated not by the Commonwealth but by Japan Airlines Company Limited. In what relevant sense can it be said that the Commonwealth should have imposed upon it fault or absolute liability as distinguished from what I have referred to as “ insurance liability “? I submit that the bill is eminently suitable for consideration by a select committee which, I would hope, would show the way in which the bill could be improved. Certainly, I think that provision should be made for unlimited liability in a case in which fault can be established. I would not go all the way by- giving unlimited liability in cas’es in which it ‘is established without fault. But the invidious distinctions which are drawn by the bill, especially the preference for the civilian casualty compared with the service casualty, seem to me to scream for attention. Therefore, I hope that the Senate will refer the bill for consideration to a select committee.
– I have to say at once that the Government will not accept the amendment moved by the Opposition, and it will resist any move to have the bill referred to a select committee of the Senate. The debate which has taken place this afternoon has very many echoes in it of the debate which we had in 1959 when we were considering the Civil Aviation (Carriers’ Liability) Bill. No doubt, those honorable senators who were here then will recall that there were two aspects of that bill. One was its international application which flowed from an international convention which was originally signed by about 70 countries. The protocol was then adopted by about 30 countries. In the debate on that bill, liability for damages was discussed at length. Of course, on that occasion, we applied this principle of absolute liability to domestic aircraft operating under Commonwealth competence in a separate part of the bill. This question of liability and of proof of negligence was discussed at length at that time. The sum of £7,500 was settled upon because, in the first place, it approximated the amount of £7,400 which had been fixed in the international convention. Also, as far as could be adjudged, it could be considered as an average sum of compensation awarded for damages suffered in this type of accident. The question of liability and of proof of negligence, I repeat, was argued at length.
It is as well to recall in some detail just what that legislation did. The act applied only to passengers carried on interstate and territorial regular public services. The principles of the 1959 act are in process of extension to all intra-state flights. No doubt, Sir, it will be recalled that when I had the measure before the Senate I indicated that when it was passed I would at once go into conference with the States with ‘the purpose of having them introduce complementary legisIation. I am very pleased to say that four of the States have passed complementary legislation which applies to intra-state operations the principles of our own act, and that the two States which have not yet passed such legislation propose to do so in a very short time.
– Which are the four States to which you refer?
– They are South Australia, Western Australia, Tasmania and Victoria. Queensland and New South Wales propose to do this quite soon. I think it is as well to recall that prior to the passing of that act the airlines were able to contract out of their liability. A limit of £2,000 for proven damages had been written into the act relating to Trans-Australia Airlines.
– It was written into the statute?
Senator PALTRIDGE__ Yes. It was contained in section 66 of the Australian National Airlines Act 1945, and it was removed when we introduced the 1959 legislation. As recently as some four years before the introduction of the 1959 legislation, the Full Supreme Court of Queensland had held that a standard provision endorsed on a passenger’s ticket, similar to the provision used by domestic carriers prior to 1959, was effective to bar any recovery by dependants, even if a serious act of negligence had been established. Honorable senators will recall that that was done by the very simple expedient of including such a provision in small print on the back of a ticket.
Despite what Senator Wright has said about the subject of negligence, one of the most difficult things for a person to do who was claiming negligence in respect of the operation of an aircraft was, in fact, to prove negligence. I am not, for one moment,saying that it was not, in all cases, possible to prove negligence. But a very large number of cases definitely established that’ it was difficult to prove negligence. The principle which our 1959 legislation established was that there should be no contracting-out by the operator, that there should be no need for the claimant to prove negligence, and that in consideration of those two factors the limit of damages should be set at £7,500. We held the view then and we J continue to hold the view. that absolute liability with a reasonable limit renders recovery certain and avoids a good deal of litigation, with all its anxiety and all its heavy legal costs.
I think it should be said that in respect of this bill the attractiveness, if I may so describe it, of this principle has been acknowledged by many of our own officers through the Administrative and Clerical Officers Association which, since the passage of the 1959 legislation, has pressed the Government to apply to those officers the principles which did not apply to them under the 1959 legislation. I think it is a reasonable proposition that we should do this, and that we should apply this limit to those officers travelling in the service of the Commonwealth on Commonwealth-owned aircraft or, for that matter, on aircraft that are not in the ownership of the Commonwealth. What we propose in this legislation is to provide the benefits that we have been providing by act-of-grace payments to those officers and other persons affected by the legislation and which no doubt we would have continued to provide if the Attorney-General had not indicated that in his view there was some weakness in the system of act-of-grace payments.
The point has been taken that the superannuation of a public servant affected by this legislation, either by loss of life or b’y injury, shall not be affected. Frankly, I listened to this argument with some mystification. I do not understand it, because it appears to me that a Commonwealth public servant, as part and parcel of the terms of his employment, joins the Commonwealth Superannuation Fund. It might subsequently be argued, and it is true, that to this fund the Commonwealth makes a contribution, but the superannuation fund of the Commonwealth Public Service is on all fours with the superannuation fund of a man who is employed in a private capacity, and in my view it would be less than realistic-
– But please give me some credit for introducing this exemption in 1959. Do not impute to me the argument that I deny it now. I am saying that it is in discriminating between those persons and the regular soldier and the activeservice soldier that the inequity comes.
– I am coming to that point, if I may be permitted to do so. I am for the moment comparing, as I suggest it is proper to compare, the executive officer of the Commonwealth Public Service and his superannuation with the executive officer of a private enterprise firm and his superannuation. It seems to me no less than right and just that if the superannuation of the man in private employment should be treated in one way the superannuation of the man in Commonwealth Public Service employment should be treated in precisely the same way.
– Hear, hear!
- Senator Wright has referred to a comparison between this position and the position of the serving soldier and the active-service soldier. The serving soldier is covered by the Defence Forces Retirement Benefits Fund which, I submit, is comparable with a superannuation fund, but Senator Wright takes the point that this does not apply to an activeservice soldier.
– To a member of the Defence Force under clause 4 (b) and (c).
– He is an activeservice soldier, whichever way you look at it. In reply to that, I indicate that these men are covered by repatriation benefits. It seems to me unreal to take the case of a man who is entitled to a repatriation benefit and to say, “ In respect of an aircraft accident you are entitled to one treatment, but if you suffer in any other way which makes you subject to a repatriation benefit you shall be treated in a different way. “ The point is that in respect of repatriation benefits, the Repatriation Act should apply. What this bill proposes is to make our Repatriation Act apply to those soldiers who are covered by the Repatriation Act by virtue of their service. Such a person is definitely excluded because he is subject to the Repatriation Act.
– He was included and he was to get compensation unreduced against the civil carrier in the 1959 act.
– The 1959 act applied to privately owned aircraft. The possibility of a soldier being on active service ip such an aircraft is remote to the point of. almost nonexistent. ,,
– I think I heard of one being shot at between Bangkok and Kuala Lumpur a fortnight ago.
- Senator Wright also took the point that Part 11! of the bill, applying as it does to aircraft not operated by the Commonwealth was - as I understood the argument - not sufficiently connected to form part of the bill. As I said in my second-reading speech, this bill is designed to embrace all persons travelling as passengers by air in the service of, or for the purposes of the Commonwealth and authorities of the Commonwealth, and to provide a uniform cover against death or injury, whether or not they are Commonwealth employees, whether they are travelling in Australia or abroad, or whether they are travelling in commercial aircraft or in aircraft owned by the Commonwealth.
Sitting suspended from 5.45 to 8 p.m.
– When the sitting was suspended 1 was replying to the debate on the second reading. I had adverted to a number of points raised during the debate and had informed the Senate that the Government would not accept the amendment proposed by Senator Murphy on behalf of the Opposition.I think there is little purpose in continuing my remarks at this stage. I have referred to many points and possibly others could be dealt with best at the committeestage. I simply repeat that the bill arises from the simple circumstances that the Attorney-General (Sir Garfield Barwick) has cast some doubt on the system of ex gratia payments made by way of compensation. This bill is designed to meet the situation thus created by the AttorneyGeneral by providing that all persons travelling by air in the service of or for the purposes of the Commonwealth and of Commonwealth authorities will have a uniform cover against death or injury whether or not they are Commonwealth employees and whether they are travelling in Australia or abroad, in commercial aircraft or in aircraft owned by the Commonwealth.
Question put -
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . . . 4
Question so resolved in the negative.
Original question resolved in the affirmative.
Bill read a second time.
.- I move -
I think I am in order in speaking to the motion. In addition to what I have said during the second-reading debate, I wish to refer to one situation that shows that the bill demands consideration by a select committee. I shall put the case of a Commonwealth aircraft leaving Brisbane for Singapore. It carries an officer of the
Treasury, an officer of the Regular Army attached to the Department of the Army and an officer of the Malayan Force. Under the Repatriation Act 1956 providing repatriation benefits for the Commonwealth Strategic Reserve, the criterion of the beginning of the active service of a man allotted to a unit for combat there is the time of leaving the last port of call in Australia. So if he were the victim of a fatal aircraft disaster between Brisbane and Singapore his dependants would be entitled to repatriation benefits within the meaning of the bill which provides in clause 6 (2.) that -
This Pan docs not apply in relation to the death of, or injury to, a person in circumstances entitling any dependant of the person, or the person, to pension under the Repatriation Act 1.920-1962, the Repatriation (Far East Strategic Reserve) Act 1956-1962 or the Repatriation (Special Overseas Service) Act 1962.
Such a person would receive no compensation under the act. His dependants would have to rely solely on the Repatriation Act. If the member of the Australian Regular Army were killed in the same circumstances, he would receive his entitlement under the Defence Forces Retirement Benefits Fund, plus £7,500. The member of the Treasury Department would receive superannuation under the Superannuation Act, plus £7,500.
I submit that there is not the slightest justification for that discrimination. To show how divergent that situation is from the position under mc 1959 act to which 1 have referred, whereby the Commonwealth was rendered not subject to liability although commercial aircraft operators were, 1 point out that it was specifically provided, after agitation by me, that persons who were entitled to repatriation benefits should receive the £7,500 which the commercial transporter was obliged to pay, and repatriation benefits were not to be deducted from it. In the case of the three men who were leaving Brisbane for Singapore there would be the discrimination 1 have mentioned. The serviceman would be out. He would receive no benefit under this legislation. He would not receive the £7,500. If the three men were being transported in a commercial aircraft the dependants of each of them would be treated in the same way. Superannuation would noi be deducted from the amount payable to the civil servant in the Treasury. The Defence Forces Retirement
Benefits Fund entitlement would not be deducted from the amount payable to the dependants of the Regular Army soldier, and repatriation benefits would not be deducted from the amount payable to the serviceman. I ask: ls there any member of the Senate who is prepared to justify this situation? I put forward that illustration to support my contention that the bill should be considered by a select committee.
– 1 second the motion. Without expressing any concluded opinion on the statements made by Senator Wright in support of his morion, I think sufficient has been said in this chamber during the discussion of the bill to indicate that the Senate should embark on a more careful inquiry of it than is possible under the ordinary forms whereby we deal with measures in the Committee of the Whole. Honorable senators have expressed opinions to the EleCt that features of this legislation are indefensible, inequitable and likely to produce injustice. Whether those opinions arc right or wrong, they call for the most careful examination of the legislation by the Senate.
Without going into the details of the matters which have been put forward by Senator Wright, surely the Senate ought not to deal with legislation in respect of which such criticisms are made without embarking on a careful inquiry. Consideration by a select committee of the Senate is a useful means whereby the Senate may perform its functions. This is a technical bill. While 1 perhaps do not share Senator Wright’s views in relation to particular aspects of the bill - he has gone into some aspects of it and other honorable senators have considered other features - 1 share his view that the bill as it stands is unjust and indefensible. 1 support the motion, and so does the Opposition, on the general grounds that the bill should nol be passed by the Senate without a careful examination by a select committee.
– The Government will resist the motion moved by Senator Wright. As 1 said a few moments ago, Mr. President, the purpose of the bill is plain. It is to provide for particular circumstances as a result of an opinion by the Attorney-General’s Department- that a practice which has been carried on for a considerable time is now regarded as being of doubtful legal validity. The opportunity is sought by means of this legislation to regularize the procedures in the way described in the bill.
Senator Wright referred to the position of a Commonwealth public servant in relation to his superannuation entitlement. He also referred to a permanent serving soldier with an entitlement under the Defence Forces Retirement Benefits Fund. Side by side with that permanent member of the Regular Army he described, accurately, the position of the serving soldier. In that respect, I point out that while section 38 of the 1959 act to which he referred, and to which the Government accepted his amendment in relation to repatriation benefits, provides that a repatriation benefit is not affected by benefits payable under the act in any circumstances, to come within the meaning of “ being killed on active service “ it is necessary under the Repatriation Act and the other legislation referred to in clause 6 (2.) of the bill now before us, for the serviceman to be killed while serving outside Australia or within a prescribed area of Australia, within a prescribed period or in actual combat with the enemy.
– From what provision is the Minister reading?
– I am not reading from the act. I am reading from a note. The circumstances would rarely, if ever, occur in the case of aircraft journeys covered by the 1959 act. I suggest that there is another reason why this question of serving soldiers should be regarded differently. It has always been accepted that the serving soldier in time of war serves in special circumstances and is governed by special rules. I need only remind the Senate that the Parliament, through its Repatriation Act, has laid down the conditions of compensation which should apply to soldiers on active service. Senator Wright has moved that the bill be referred to a select committee. I repeat that the purpose of the bill is to apply to a particular category of persons, in a very narrow way, and to put right or regularize action which had been taken and which has new been found to be of doubtfulvalidity. In those. circumstances, I suggest thatit is not appropriatethat the bill should be referred to a select committee for the purpose proposed by the honorable senator.
Question put. The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . . . 1
Question so resolved in the negative.
Clauses 1 to 3 agreed to.
In this Act, unless the contrary intention appears - “ passenger “, in relation to an aircraft, does not include -
.- We have had the principle of this bill explained to us as being a proposal to establish liability against the Commonwealth for the benefit of passengers. “ Passenger” is defined in this way - “ passenger “, in relation to an aircraft, does not include - a member of the crew including a pilot of the aircraft; 1 should like the Minister for Civil Aviation to explain to me the meaning of the word “ crew “ if it is necessary to include in the definition the words “ including a pilot of the aircraft “. The definition also provides that “ passenger “ does not include -
That is defined - or (ii) is included in a prescribed class of members of the Defence Force;
What is the reason for mentioning “ a prescribed class of members of the Defence Forces “? What class is in contemplation? Why is a member of the Defence Force “? What class is in contemplation? this bill? Who would be a member of that prescribed class? The definition also excludes -
duties or services for the performance of which he is employed or engaged by the Commonwealth or a Commonwealth authority; or
I ask this question: If a member of the Defence Force is detailed to go to Pakistan for the purpose of military instruction and if he boards an aircraft in Brisbane and is shot down before he reaches Singapore, is he not, while travelling as a passenger in the aircraft, employed for the purpose of performing in the aircraft duties or services for the performance of which he is employed or engaged by the Commonwealth? The definition states that the term “ passenger “ does not include a person whose carriage in the aircraft is for the purpose of his performing in the aircraft duties as a member of the Defence Force. Is that officer, while travelling, not automatically discharging his duties as a member of the Air Force?
– I have been asked why in the definition of “ passenger “ reference is made to a “ member of the crew including a pilot of the aircraft “. The answer is that normally a single pilot is not regarded as being the crew. The definition has been phrased in the manner shown in the bill in order to remove any doubt.
– Does not the Acts Interpretation Act provide that the singular shall include the plural and the plural shall include the singular?
– It might but I think the point is that it refers to a pilot in the singular rather than in the singular and the plural. I do not know whether I made myself clear. Where there is only a single pilot he is not referred to as “ crew “.
– I thank you.
– The next question was asked in respect of paragraph (b), sub-paragraph (ii). The relevant words are - is included in a prescribed class of members of the Defence Force.
The prescribed class is intended to include only certain categories who, although they do not receive flying pay as such, have included within their total remuneration an element which ispaid for asimilar purpose.
These categories vary from time to time according to the requirements of the service.
– Could you give the Senate an instance?
– I may be able to. There is a group of non-commissioned officers in some air crews whose pay does not contain a separate identifiable flying pay component. They receive a composite rate of pay which is fixed having regard to the flying risk.
On the third question, I am advised that in order to be excluded the member would have to be carried in the aircraft for the purpose of performing specific duties in the aircraft and not merely for the purpose of being carried in the general course of duty to another place.
– I should like to join with Senator Wright in his objection to this type of legislation. Included in the definition of passenger are the words, “ a prescribed class of members of the Defence Force “. I think that that can be regarded only as an obnoxious method of drafting. The word “ passenger “ has general operation throughout the statute. A person has to be a passenger in order to be covered, yet there is this provision whereby those who come within the concept of “ passenger “ may be excluded by means of prescription. There is no limit placed upon it so far as members of the defence force are concerned. I think that as far as possible that sort of thing ought to be avoided, and if there is some real problem to be dealt with it ought to be expressed. This is a dangerout type of drafting and ought to be avoided.
– I hoped that what I said earlier would be satisfactory. I pointed out that this prescribed class would vary according to the requirements of the service concerned and that therefore there was a real difficulty in defining the class other than by prescription. I point out, Mr. Chairman, that it would have to be prescribed by regulation, and that regulations always come before both houses of the Parliament and are. subject to inquiry and* disallowance.
.- It dismays me to hear such reasons advanced for the provision in the bill. The Minister for Civil Aviation (Senator Paltridge) has not made clear any category to which it is appropriate to apply this provision. He has offered us the suggestion, both when speaking in reply and to the motion for the appointment of a select committee, that this is a bill which simply takes the place of a creaky, old, good-natured administrative scheme which has now proved to be illegal. Because the existing structure is an old, creaky structure I suppose the implication is it will do if we erect a similar insecure structure in this bill. This amazes me the more because the Minister in his secondreading speech said - . . there have been many difficulties to be resolved in the course of preparing the bill.’ Apart from rather intricate legal aspects which have been carefully examined by the AttorneyGeneral and his officers, consideration has been given to the views and interests of a number of other departments, particularly the Department of Civil Aviation, the service departments, the Public Service Board and the Department of External Affairs.
The Minister’s own statement in that context shows that there is a priority of interest in discriminating between the members of the various services, and the Minister cannot show there is any reason at all for the discriminatory operation of this bill upon these services. I suggest that the first part of the definition can stand, but in regard to the second, I move -
In paragraph (b) of the definition of “ passenger “ omit “ or (ii) is included in a prescribed class of members of the Defence Force “.
Then when the Government has something clearly in mind as to the class of members of the defence force to be excluded from the benefit of this legislation it can come along and we will insert the provision if it is just. At present, to give the regulationmaking power the right, to take any class of the defence services and exclude it by regulation is, I submit, obnoxious.
– I must oppose the amendment. I have endeavoured to explain that the categories might vary from time to time according to the requirements of the services. I suggest that this is something that almost every one in the Senate has come into contact with, certainly every one who served in any of the forces. From time to time components vary and members in categories vary. They vary to meet operational and service requirements, and they can vary on a number of occasions.
I was not an Air Force type myself; I happened to serve in the Army. I put it to any one in this chamber who has served in the Army that the strength of a section can vary quite frequently, and can vary from day to day in some circumstances. 1 do not doubt that the same sort of thing applies in the Air Force, and for that matter in the Navy. It is to meet this particular difficulty that these words are included, and that is the reason for the definition being couched in the terms in which it is couched. It is for no reason other than to meet a practical day-to-day requirement. 1 repeat that a relevant regulation would be subject to scrutiny by both houses of the Parliament. I put it to the Senate that this is a reasonable thing. Our services do, in the lower echelons, vary from day to day. This definition takes account of that actual circumstance.
– I submit to the Minister for Civil Aviation (Senator Paltridge) that the difficulty is that we are talking about a member of the crew of an aircraft who is included in a prescribed class.
– No, a member of the defence force, whether a member of the crew of an aircraft or not.
– Yes, whether a member of the crew or not. He is a member of the defence force and is included in a prescribed class. The objection that I see, based on Senator Wright’s objection, is that this is wide open. There is no principle determining the type of class that would be prescribed. I think the Minister put his finger on it when he indicated that the class would be one in which a member received flying pay or had an element equivalent to flying pay as a component of his pay. I think it would narrow the scope of the provision of the bill if we could work in the very words that the Minister has put. If the position is as I have described it, we might perhaps amend the provision to include the words, “ is included in a prescribed class of members of the Defence Force, whose pay has an element of flying time or its equivalent “. Could we narrow it in some way to the principle that the Minister has enunciated? I do not suggest that the drafting should follow the precise words that I have used, but could we take the principle that the Minister has enunciated and include some reference to a prescribed class?
– I certainly raise no objection at all to the point that Senator Wright has in mind. The draftsman has provided me with something that may meet the honorable senator’s requirements. It reads as follows -
A member of the Defence Force, whether a member of the crew of the aircraft or not, who -
– That suggested amendment seems to have in it a vice which was considered on a previous occasion by the committee of the Senate. It may be that in endeavouring to remove one vice, we would be including a much worse vice if we accepted the amendment. The criterion as to any prescription that the Governor-General shall be satisfied is one which, on a recent occasion, was rejected by the Senate for the very good reason that it tends to remove the question of the validity of any prescription both from judicial scrutiny and from the scrutiny of the Houses of Parliament. The test of the validity of a prescription becomes not whether the ultimate condition is satisfied but whether either the judicial tribunal or the Houses of Parliament are satisfied that the GovernorGeneral is satisfied. It is not the same thing at all. I submit to the committee that we must insist that phrases such as this in bills such as this should not be allowed to pass through this chamber. It may be that in some rare circumstance such a phrase is permissible, but there is no warrant for it at all on this occasion, in my view. I think that the suggestion made by the Minister should not be accepted by the committee.
– In that form?
– Yes. If the reference to the Governor-General’s satisfaction were deleted it may be that the rest of the proposal would be acceptable, but I suggest for the Minister’s consideration that that phrase, should be deleted.
Speaking generally on this matter, I may say that Senator Wright has raised a very serious point. It is pleasing to see that the Minister is prepared to meet the objection to the extent of specifying the conditions upon which a prescription is made. Otherwise it removes from the sphere of the legislature to that of the executive the exercising of delegated functions under this legislation. This definition of “ passenger “ is extremely important and is not a minor matter. So far as I can see persons are covered only if they are passengers. It is wrong that in an important group of persons, namely the whole of the defence force, one should leave the power of prescription so open that the executive may exclude a great class of persons who would otherwise be covered by the act. I think that a proposal such as that mentioned by the Minister, or that suggested by Senator McKenna, ought to be sufficient to meet the objections that have been raised, provided that in respect of the Minister’s suggestion the reference to the satisfaction of the Governor-General is excluded.
– Senator Murphy has said that the words I suggested would put another vice into the clause while removing the first one. Frankly, I do not think that is so. I consider that this is the type of thing for which regulation-making is necessary, for the reasons that I stated earlier, including the changing requirements of the services. I have said that almost day by day, at times. To permit this sort of thing to be done by regulation is, in my view, to do no more than accept the fact that this is the only realistic and practical way that a situation of this nature can be met.
– That is not the objection, Mr. Minister.
– I suggest that it is.
– I do not object to regulation in absolute terms. It must be remembered that an unconditioned method of prescription places the attachment of the satisfaction of the Governor-General as a criterion of the validity of the prescription.
– As I understand the position, the elimination of a reference to the Governor-General would introduce an element of doubt which would have to be decided, ultimately, by a court rather than by this Parliament. I think that the fact that the regulations come under the scrutiny of both Houses and also the fact that the Minister, upon the moving of a motion for disallowance of the regulations, would have to justify them, meets the situation. I regret that I cannot go to the length that Senator Murphy has suggested. I would ask him to have another look at this matter. I think this is a reasonable and a realistic way in which to meet the situation.
.- I regret that the Minister’s observations seem to indicate that the real objection advanced by Senator Murphy has not been met. It is this: There is, first of all, an unlimited power of prescription of the bill as printed. The Minister has been good enough to meet that objection by saying that the bill expressed the purpose that Senator Murphy had in mind. I was encouraged by that statement and, although it does not meet my actual purpose, I would be very glad to accept that part. But the draftsman has couched the provision in language which makes the Governor-General’s satisfaction on the matter conclusive. That means that nobody could contest the Governor-General’s decision. Once the Governor-General was satisfied, everybody would be precluded from the exercise of their rights. This involves a principle on which the Senate took a stand earlier when it deleted the expression “in the opinion of the Governor-General “ from a clause in the International Organizations (Privileges and Immunities) Bill. I can quite understand that the effect of these words might escape those who have not scrutinized the judgments of the High Court on this subject time and time again. All we ask - is that the bill should say what the Minister says it means so that it will not make the decision of a subsequent ministry conclusive. I ask that we delete the words “ as to which the Governor-General is satisfied “ and substitute the words “ a member of the force as to whom, in fact, such a position as to pay exists “. That alteration, 1 submit, would meet the situation in the spirit of the Parliament.
Question put -
That the words proposed to be left out(Senator Wright’s amendment) be left out.
The committee divided. (The Chairman - Senator G. C. McKellar.)
Majority . . . . 1
Question so resolved in the negative.
Amendment (by Senator Paltridge) proposed -
In paragraph (b) (ii) of the definition of “ passenger “ after “ Defence Force “ insert: - “ , being a class as to whom the GovernorGeneral is satisfied that the terms and conditions of their service include provision for risks arising out of the performance of duties in aircraft.”
– As an amendment to the amendment proposed by the Minister for Civil Aviation (Senator Paltridge), I move -
Leave out “ the Governor-General is satisfied that “.
The amendment proposed by the Minister will then read - being a class as to whom the terms and conditions of their service include provision for risks arising out of the performance of duties in aircraft.
That is the category which the Minister indicated he wished to have dealt with in this prescribed class. This question is really one of the supremacy of the Parliament and the extent to which the Executive is to determine matters which thereafter become unexaminable as to their validity cither in the courts of law or in the Houses of this Parliament. It is of no use to say that the matters come before the Houses of this Parliament and may be looked at. That is true, but one of the criteria on which a court would consider delegated legislation is that of validity - conformity with the conditions laid down in the statute. Equally so, that is a condition that is considered by the Houses of the Parliament. The purpose of inserting in a prescriptive clause the words “ the GovernorGeneral is satisfied “ is to remove from the effective examination of the courts or of the Houses of Parliament the validity of that prescription. It will no longer be a question of whether the persons are in the class at all. The question will simply be: Is the Governor-General satisfied? Because he says that be is satisfied, that is the end of it.
That is the kind of vice that has been creeping into legislation. If the Parliament is to remain supreme, it must reject that kind of provision as it has already rejected it in this very chamber, and very recently. It is of no use to say that there will be a little difficulty, so let us have the provision for this purpose or for that purpose. We must not let these things creep in. We must reject them and maintain the supremacy of the Parliament. I ask that the principle decided by the Senate so recently be maintained by the Senate. We want to maintain the privileges of the citizens of this country and we want to maintain the supremacy in the Parliament.
– I cannot accent Senator Murphy’s amendment. I appreciate the force of what he says, as a general principle, but I feel that it is not applicable to this particular case.
It is put to me that the court itself can have no knowledge as to whether the terms and conditions referred to do in fact make allowance for flying pay.
– The courts concern themselves every day with that sort of thing - the terms and conditions of service.
– The point is that this has to be prescribed as a day to day consideration. It cannot await presentation to a court for a decision. However, I put it to the Senate that either Houses of the Parliament can move for disallowance. I think that the consideration is a practical one. It is necessary that provision be made, as the amendment suggests, for the Governor-General to be satisfied.
.- I would not have deemed it necessary to add anything to the eloquent remarks of Senator Murphy to establish a principle of which we should be jealous, if it were not for some untoward observations of the Minister. Nobody suggests that before a regulation is made there must be an application to a court. So long as the regulation is in accordance with the statute it will hold. We want to protect the right of a man who has a grievance to come to the court. The words that Senator Murphy seeks to delete are designed to prevent our disallowing a regulation in respect of which the Governor-General says that he is satisfied, and to make the provision conclusive, so as to prevent a subject from seeking the protection of the court in a case where he can say that the terms and conditions of his employment do not make special allowance for the risks arising out of the performance of duty in aircraft.
– I merely say that nothing I have said and nothing that Senator Wright has said in any way destroys the proposition that on presentation to both Houses of the Parliament a regulation can be disallowed.
Question put -
That the words proposed to be left out (Senator Murphy’s amendment upon Senator Paltridge’s amendment) be left out.
The committee divided. (The Chairman- Senator G. C. McKellar.)
Majority . . . . 1
Question so resolved in the negative.
Amendment (Senator Paltridge’s) agreed to.
.- I wish to refer to paragraph (c) (ii) of clause 4. As printed, it would exclude from the definition of passengers entitled to benefit under this bill a person who is carried in an aircraft for the purpose of performing in the aircraft duties as a member of the defence force. I ask the Minister for Civil Aviation (Senator Paltridge) to consider the case of a soldier of the Australian Regular Army embarking from Brisbane to go to Pakistan to give special instruction there. Is it intended that such a soldier shall have the benefit of compensation under this bill?
– Yes, it is intended that he have the benefit of the legislation.
– That being clear, I ask the committee to examine this clause because I submit that it will defeat that intention; or, alternatively, that there is such doubt about the interpretation of this clause that a prudent legislator would take this opportunity to prevent ambiguity causing litigation and maybe defeating certain rights. Let us consider the circumstances in which a soldier of the Regular Army is carried in an aircraft for the purpose of performing in the aircraft duties as a member of the defence force. Take an officer who has five non-commissioned officers with him going to Pakistan. Is he bound to prevent insubordination in that aircraft? Is he bound to arrest in the aircraft any of those men who shows disobedience? Of course he is. He is serving from the time he enters the aircraft until he leaves it. Milton said -
They also serve who only stand and wait.
That might give some pertinence on a superior level to my advocacy of this interpretation.
– When speaking to clause 4 (c) (ii) Senator Wright referred to members of the defence force travelling in an aircraft, but I address my remarks to clause 4 (c) (i) which reads inter alia - “passenger”, in relation to an aircraft, does not include -
Senator Wright has referred to the case of an officer having in his charge in an aircraft a number of non-commissioned officers. The honorable senator asked whether or not that officer was engaged on duties as a member of the defence force while on the aircraft. By way of illustration I take the case of a member of the Commonwealth Police Force being transferred, as a police officer, from Canberra to Darwin. During the course of the flight he has occasion to arrest somebody in the course of his duties.
– Maybe a civilian.
– Yes, possibly a. civilian. What is the situation? I say that such a case is on all fours with the case mentioned by Senator Wright in his submissions. These matters should have been considered by the Minister for Civil Aviation and those who were responsible for drafting the bill.
– The point is that persons such as those referred to by Senator Wright and Senator McClelland are not being carried in the aircraft for the purpose of performing any duty in the aircraft, even though an officer, as Senator Wright has said, might have certain disciplinary powers. He is carried in the aircraft for the purpose of performing a duty when he arrives at his destination.
.- I move -
In paragraph (c) of the definition of “passenger “ after “ is “, first occurring, insert “ specifically and only “.
The clause would read, if the amendment were adopted -
In this Act, unless the contrary intention appears - “ passenger “, in relation to an aircraft, does not include -
a person whose carriage in the aircraft is specifically and only for the purpose of his performingin the aircraft -
duties or services . . .
I submit, Mr. Chairman, that it is necessary to introduce words such as those I have proposed. It is idle to say that if I were to order a military officer to go into an aircraft and fly to Pakistan, I would not be putting him in the aircraft for the purpose of his performing duties in the aircraft.
– In order to clear up any doubt that may arise, I am pleased to accept the amendment.
– I think that perhaps this kind of thing indicates how really necessary it is to have the extremely careful analysis of the bill which Senator Wright suggested earlier. I, for one, would not like to remain silent and for it to be thought that I agreed that the position will be satisfactory after Senator Wright’s amendment has been adopted. I am in no way criticizing Senator Wright, but I do » not know that the amendment he has proposed, and which has been accepted by the Minister, will achieve what Senator Wright wants to achieve without causing . other problems.
– No, but it is some improvement.
– Yes, I think that is so. Senator Wright is seeking to deal with one problem which has arisen. The words “ specifically and only “ are to be inserted. Suppose there is a person whose carriage in ah aircraft is for the purpose not only of his doing something on that aircraft but also iri order to move him from one point to another.
– Then he is covered.
– I am not happy that the amendment will solve the problem
At all. It is very difficult to deal with such matters in this way. I voice the view that I am not satisfied that the amendment will achieve everything that it is hoped it will, and that it will not cause other problems to arise.
Amendment agreed to.
.- I regret that it is necessary to direct attention to what I regard as a more obvious defect in the next paragraph of the definitions clause. I ask honorable senators to read the following definition and to try to understand the principle that is involved: - “ passenger “, in relation to an aircraft, does not include -
Why should an employee only be excluded from the cover that accrues to passengers? Let us take the example that has been given in the second-reading speech, of a person entering an aircraft to test a mechanism, a certain acid or something else, for the purposes of his ordinary civil occupation. Let us suppose that a new acid has been submitted to the Commonwealth Scientific and Industrial Research
Organization by a scientist’ who is a. merchant in business on his own account. Suppose that he goes up in a Commonwealth aircraft to demonstrate the effect of the acid in rain-making, or something of that kind. Being a private entrepreneur and self-employed, he is not within the category of persons excluded from the definition of “ passenger “.
Then let us take the case of the managingdirector of a proprietary company who, as such, would be a person employed by the company. He would be excluded and unable to obtain this benefit. Then -let us consider the more compelling case of an ordinary employee of the Broken Hill Proprietary Company Limited who flew in an aircraft to demonstrate, say, the efficiency of an acid or of apparatus in rain-making. Simply because he was an employee he would be excluded, whereas, if he were demonstrating his own goods from a Commonwealth aircraft he would not be excluded. Am I wrong in assuming that it is not the purpose of the legislation to discriminate between employer and employee? If I am not wrong, I should like to know the basis on which the discrimination was proposed.
– The purpose of the paragraph is to cover the case of an employee of another person or firm who was flying in order to perform airborne duties for his employer; for example, an instrument mechanic employed by a private firm who was engaged to install and check a special instrument in a Commonwealth aircraft. Such a person should, rightly look to his employer for cover while performing his duties. The Commonwealth would, of course, remain liable in the event of negligence.
.- The Minister has read to us a statement which does not answer at all the objection that I see to discrimination between employer and employee. As a hazard of draftsmanship and in order to express the purpose of the bill, I shall move an amendment on the spur of the moment. I readily admit that it is capable of improvement, but at any rate, it is a rough attempt to express the purpose of the bill and I think lt will do so more appropriately than does the printed provision. I move -
In paragraph (d) of the definition of “passenger”, leave out “employed by a person other than”, insert “not employed by”; leave out “on behalf of his employer”.
The definition of “ passenger “ would not then include a person not employed by the Commonwealth or a Commonwealth authority and whose carriage in the aircraft was for the purpose of his performing in the aircraft duties or services. It would be unnecessary to specify on whose behalf the person was performing duties or services. The provision simply would exclude a person, not being employed by the Commonwealth or a Commonwealth authority, whose carriage in the aircraft was for the purpose of his performing in the aircraft duties or services. I think that is what the paragraph intended to express.
– I am in the same situation as Senator Wright. It is very difficult to handle these matters in this way, but I shall attempt to do the best I can. Senator Wright’s proposal achieves a remarkable reversal of the exception. The definition is altered from excluding a person employed by a person other than the Commonwealth - in other words, excluding, if you like, persons employed by private employers - to an exclusion of persons not employed by the Commonwealth. Let us take persons who are> in the category of honorable senators. Where should they come in under the existing exclusion?
– What duties do we perform in an aircraft?
– I may be wrong. Let us suppose that a senator is engaged in travelling. His carriage may be regarded as being incidental to the performance of his duties or services. The notion of services is a wide one.
– I take it that you are putting a case in which a senator might address, as in an election meeting, the other passengers in the aircraft!
– No. The word “ services “ has been taken by the Senate to have a wide meaning. If we are to tie it down to things which, in the ordinary concept, are actually done in the aircraft, some amendment of the definition is needed. But leaving that aside, the important change which would be made by Senator Wright’s motion would be to take from one category of exclusion those who are in an intermediate position. I refer to persons who are not employed by the Commonwealth or by private employers. What is to happen to those persons? What is to happen to persons such as honorable senators?
– They could not very well be carried in the aircraft for the purpose of performing duties.
– They are not performing duties.
– When we speak of members of the Parliament, we must remember that they constitute one of the classes of persons that were mentioned in the second-reading speech as being dealt with. Although members of the Parliament are not employees, they perform duties and services. It may well be that their carriage in the aircraft is incidental to the performance of duties or. services. That is why I raise this point - it is a very serious one - that you may have persons who are not in the category which has been mentioned. I thought it proper to raise this point for consideration by Senator Wright.
– I rise because of a fear, after listening to Senator Murphy, that I may be excluded from compensation.
– You may well be excluded.
– With all due respect to Senator Murphy, I think he has forgotten the important point in the definition - the words “whose carriage in the aircraft is for the purpose of his performing in the aircraft - (i) duties . . .”. The duties have to be performed in the aircraft. We commence to think backwards when we have an exclusion clause rather than a clause which provides the persons which the bill should cover. Senator Wright said that it is not fair if a person who is in an aircraft for some rain-making tests as an employee is not covered but if he is there as an employer he is covered. That is Senator Wright’s argument as I understood it.
– No, that is not so.
– Am I wrong?
– I think so, but Senator Wright may speak for himself.
– The point I am making is that the amendment which has been proposed covers all those who are not employed by the Commonwealth, but by covering them it, in effect, excludes them from benefits. As I understood his argument, Senator Wright suggested that it would be unjust if the employee were excluded but the employer were not. I take it he implied that all persons who work in an aircraft, whether they are employed by the Commonwealth or not, should be covered. His amendment would exclude a further class of people.
As I said at the commencement, it is very difficult to follow the intention of the legislation when we have a clause which excludes somebody. I am wondering whether it would not be better for the Minister to have the debate adjourned to let him have a further look at this provision with a view to ascertaining whether the clause could not be recast to provide greater clarity. Whatever we decide to-night, it will give rise to a lot of ambiguity and will involve subsequently a lot of legal argument.
– I rise to participate very briefly in the discussion on this definition. I sympathize with Senator Cavanagh in his difficulty about double negatives. As I understand it, we are proposing that the term “ passenger “ shall not include a person not employed by the Commonwealth or a Commonwealth authority. There we run into a double negative. It is exceedingly difficult to follow the definition.
The situation might be clarified if the Minister were to address his mind to the following words in paragraph (d) - a person . . .’ whose carriage in the aircraft is for the purpose of his performing in the aircraft duties or services. . . .
Is it intended that the duties shall be performed iri relation to the aircraft itself - that is, by a craftsman or tester? Some ambiguity might be removed if the definition were to read - a person … whose carriage in the aircraft is for the purpose of his performing in relation to the aircraft…..
Is that what the clause aims at? If that were the position, I imagine you would wipe out the difficulty that is presented in this question: Do senators working while in an aircraft come into it?
– What about a photographer who is being carried in an aircraft on behalf of his employer?
– I would agree completely that that would not be in relation to the aircraft. I would suggest for Senator Wright’s consideration in particular, as he has proposed the amendment, that instead of using the words “ a person not employed by the Commonwealth “, we might say “a person employed otherwise than by the Commonwealth “. In short, what the honorable senator is doing is widening the exclusion. He is picking up persons in. the employer category as well as persons in the employee category who are performing services in the aircraft.
– Might I whisper to you that the Minister has suggested an amendment. If you allow him to put his amendment I will withdraw mine.
– Then let us consider what the Minister has to say.
– I propose to move -
Leave out paragraph (d) of the definition of “ passenger “ and insert the following paragraph “ (d) a person whose carriage in the aircraft is specifically and only for the purpose of his performing duties and services in the aircraft; of”.
I think that will get to the point that Senator Wright wants. It was suggested to me that it states the proposition in a slightly better way.
.- I ask for leave to withdraw my amendment in favour of the amendment moved by the Minister for Civil Aviation.
Amendments - by leave - withdrawn.
Amendment (by Senator Paltridge) proposed -
Leave out paragraph (d) of the definition of “passenger”, insert the following paragraph: - “ (d) a person whose carriage in the aircraft is specifically and only for the purpose of his per- forming duties or services in the aircraft; or ‘’,.
– The only observation I want to make is that the amendment moved by the Minister makes no point as to whether or not the person is employed by the Commonwealth or a Commonwealth authority. I thought that the original intention was to make sure that the clause excluded only a person who was a stranger to Commonwealth employment.
. Thank you very much. I direct the honorable senator’s attention to clause 4 (c) (i) and to the words - duties or services for the performance of which he is employed or engaged by the Commonwealth or a Commonwealth authority.
– I think the amendment is satisfactory.
– For my own satisfaction I should like a little elucidation on what the clause originally meant and what it will mean now after it has been changed by these various amendments. I shall put my proposition in the form of a statement so that I can be corrected at any point at which I may be wrong. As I understand it, the clause as originally drafted excluded employees or persons who were carried in aircraft for the purpose of carrying out duties in the aircraft on behalf of their employers. Those were the only people excluded and the reason they were excluded was that it was thought they could look to their employers, and the insurance that their employers could take out to cover them, for any damages that might be incurred as the result of accident. As I understand the position now, not only are those people excluded, but also self-employed people will be excluded. I wonder what is the object of excluding self-employed persons. They were not originally excluded because presumably they could not look to their employer for the recompense of any damage which they might have suffered. I ask for this elucidation to make sure that we are not adding an exclusion which will mean doing an injustice to some class of persons.
.- If I might be permitted to say one or two words, the reason I find the Minister’s amendment satisfactory is this: The object of the clause, I take it, was to discriminate between employer and employee.
For the purpose of this amendment 1 am not disputing the principle that the Government seeks to introduce. I myself would want to give much further consideration to it before I come to a conclusion as to its justice. That is why I wanted a select committee. I took the point only for the purpose of seeing that the purpose of the Government was not defeated by inadvertence of draftsmanship. I think the Minister’s amendment does fulfil the purpose of the Government, which is to exclude from the compensation to which a passenger will be entitled under this bill, all persons, whether employed or self-employed, whose presence in the aircraft is explicable by the fact that they are there to carry out a specific duty of their own in connexion with their own particular business. If that is the principle I think it is properly expressed, but it is of doubtful validity to my mind.
– Perhaps the Minister for Civil Aviation will indicate what would be the position of the persons mentioned by Senator Gorton, that is, persons who are not employees but employers, or are not in one category or the other, but who come within the ambit of the words he has mentioned. If they are on an aircraft which is damaged, or in which they are injured or killed, what happens to their rights and the rights of their dependants?
– A person in that category could be expected to insure himself. That is the short answer.
– Am I right in understanding that the effect of this exclusion would be that such persons would have no rights at all-
– They can still sue.
– That is the question I ask. What rights would they have under this and comparable legislation? Everybody knows that they can insure themselves; they might be millionaires. But what would their rights be, and what would the rights of their dependants be if they were injured or killed in an aircraft in circumstances where there was negligence or where there was no negligence? What are the rights of these persons? What is intended by the bill in respect of these persons?
-I am advised that their rights are the same as they are now. They can sue for unlimited damages if they can prove negligence.
.- I am surprised at the observation of the Minister. I must ask for a further explanation. I would think that those people are precluded by this bill from the rights they have now to sue on the ground of negligence.
– At common law. .
– It is merely a question of examining clause 9 to see whether that is the position. I think that clause is couched in terms which deprive a passenger of his common law right to sue on the ground of negligence. I merely wanted to examine the position. I am satisfied with the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 5 agreed to.
Clause 6. (1.) This Part applies to the carriage of a passenger in an aircraft operated by the Commonwealth or a Commonwealth authority, not being carriage to which Part IV. of the Civil Aviation (Carriers Liability) Act 1959-1962 applies. (2.) This Part does not apply in relation to the death of, or injury to, a person in circumstances entitling any dependant of the person, or the person, to pension under the Repatriation Act 1920-1962, the Repatriation (Far East Strategic Reserve) Act 1956-1962 or the Repatriation (Special Overseas Service) Act 1962.
– Mr. Chairman, I ask that sub-clauses (1.) and (2.) be taken separately because I wish to advocate before the committee that sub-clause (2.) should not stand part of the bill. I have already argued the position, both at the secondreading stage and oh the motion for the appointment of a select committee. I submit that there is no reason whatever why this provision should not apply to a person whose death or injury is caused in circumstances in which there is a repatriation entitlement.
– Your request, Senator, was that sub-clauses (1.) and (2.) be taken separately?
– Yes. If you would deal with sub-clause (1.), I can then advance argument on sub-clause (2.).
– The question is, “That sub-clause (1.) stand as printed”.
Sub-clause agreed to.
.- The reason why I submit that it is unjust to exclude the active serviceman is this: It has been amply demonstrated that this bill is only a substitution for an ex gratia scheme which has been applied for indemnity of Commonwealth servants and persons carrying out duties for the Commonwealth. I suggest that it Has been amply demonstrated that in the case of carriage by civilian aircraft, a public servant, an officer in the Australian Regular Army or an active serviceman is entitled to compensation under the Civil Aviation (Carriers’ Liability) Act’ 1959-1962, plus whatever benefitshe has under superannuation, defence forces retirement, or repatriation schemes.
The Minister has indicated that the bill has been the cause of great trouble and that consideration has been given to the views and interests of officials of other departments. But the injustice of giving to Commonwealth civil servants and to members of the Australian Regular Army on nonactive duties their complete rights while specifically denying complete rights to active servicemen seems to be most patent. I realize that a fundamental re-thinking with regard to risk in carriage by aircraft is. needed in relation to active servicemen.
In this bill we are, for the first time, creating this liability in favour of civilian public servants. We are creating it also in respect of members of the permanent forces not on active service. The committee cannot justly deal with this measure without firmly considering what justice requires for the benefit of active servicemen when compared with the other two categories. I suggest that honorable senators have only to consider one illustration, such as I. stated earlier this evening. I mentioned the case of three men setting off from Brisbane to Singapore. One of them is a civilian, an officer of the Treasury; another is a member of the Australian Regular Army not on active service; the third is an army officer who is going on active service. As soon as the active serviceman leaves the last port in Australia he becomes entitled to a repatriation benefit. The plane goes down with the three of them on boardbut the only one who is deprived of the compensation provided by the Commonwealth under this bill is the active serviceman. I submit that that is completely unjustifiable and demands fundamental consideration.
The committee should not allow this opportunity to go by. If sub-clause (2.) stands it will defeat the rights of servicemen and give to civilians benefits that will be dented to servicemen in similar circumstances. So this is a matter for keen debate.
– On behalf of the Government, I oppose the amendment submitted by Senator Wright for the exclusion of sub-clause (2.). I do so for the same reasons that I advanced earlier in the debate. I pointed out then that superannuation for the public servant, for which he contributes, is part and parcel of his terms of employment. He contributes to the fund and is entitled to benefits from it in the same way as any one employed by private enterprise who contributes to a superannuation scheme is entitled to whatever benefit it confers. The same principle applies to the Defence Forces Retirement Benefits Fund, which also is a contributory superannuation fund for permanent career servicemen.
The proposal submitted by Senator Wright, I suggest, leads into the broad repatriation field. If his amendment were successful, within that field it would set up a situation in which the active service soldier, who was unfortunately killed in an aircraft crash, would receive consideration different from that given to active service soldiers injured or killed in a variety of other ways. I have said, and I repeat, that active service conditions are special conditions which have always attracted special pay and special terms of engagement.
– And repatriation.
– And repatriation. If I may point to the most obvious difference, the pay of an active serviceman is not comparable with the pay of a civilian employee. It never has been, for the simple reason that special conditions attach to this special type of service. As much as I am sympathetic to the aims of the serviceman - I should like everybody to believe that - I do not see the time when the relationship between the serviceman and civilian will be altered in principle. For all these reasons I must reject the proposition put forward by Senator Wright.
.- I should like to address some remarks in answer to the Minister. He said that my proposal would introduce into the service field a discrimination between those who were killed by aircraft and those who were killed in other ways. That brings into relief the point that I desired should emerge, that is that this bill selects casualties by aircraft as the only ones in respect of which compensation is payable to civilian public servants: If a group of three public servants set out from Canberra in a motor car to-morrow, instead of from Brisbane, none of their dependants would receive anything if they were killed. If they were to go from Sydney to Brisbane by ship and were killed, none of their dependants would receive anything under this bill. But in respect of travel by aircraft there is a discrimination in favour of the civilian and the regular soldier as against the active serviceman. What validity, therefore, is there in the Minister’s statement that I would introduce a new discrimination in connexion with active service personnel by distinguishing between those killed in aircraft and those who are not? That is the very criterion that he is introducing in connexion with the civil service.
Does he appeal to the sense of justice of the Senate when he reminds us that the rate of pay of the civilian is better than the rate of pay of the active serviceman? No. He emphasizes the fact that this poultice has been prepared by the civilian public service which will benefit from it. The Senate should rise until this bill is amended to provide that the active serviceman shall receive in respect of casualties in aircraft compensation comparable to that which is conferred by this bill on the civilian servants. I am not seeking to deny the civilian servant anything but I do protest against the statement that he is entitled to his superannuation, plus £7,500; that the regular soldier is entitled to his defence retirement benefit plus, £7,500; but that the private on active service whose widow is entitled to a repatriation benefit will not have rights similar to those enjoyed by people in the o:her two categories. Are active service personnel to be discriminated against and adversely affected by this bill? I submit that that suggestion is intolerable.
– Senator Wright’s remarks appear to be in accordance with the view that was put earlier that there ought to be similar treatment for all persons in aircraft and that inequities ought to be removed. It is the view of the Opposition that there ought to be an immediate payment of £7,500 on the death of any aircraft passenger without limitation whether that person is in one category of life or another. The limitation on the amounts of damages which my be recovered by any injured passengers or their dependants should be removed. The proposals already put forward by the Opposition should be adopted in order to introduce into this bill a measure of justice and equality. We support the amendment moved by Senator Wright.
, - I cannot accept the proposition that the serviceman can be or should be treated on the same basis as the civilian employee, despite the quite eloquent pleading of Senator Wright. The Government regards repatriation rights as matters which should be considered in the context of repatriation legislation for the reasons which I gave only a few .minutes ago, and which I suggest are powerful. Senator Wright said that this bill introduces further inconsistencies inasmuch as it gives to the public servant, for example, travelling by air, certain benefits that he would not have if he were travelling by some other form of transport.
– Is that not so?
– I submit, wilh respect, that this removes an inconsistency inasmuch as a public servant travelling on a civil airline is entitled to a maximum of £7,500. The ex gratia payment for which provision has existed has been of doubtful validity. Consequently, without this measure, public servants travelling by Commonwealth aircraft would not have the same rights as those travelling by civil aircraft. As stated in the second-reading speech, the purpose of this bill is, simply and plainly, to remove the existing inconsistencies.
.- What the Minister has just said only highlights the situation as I have described it. Let us again consider the three gentlemen travelling by civil airline from Brisbane; The active serviceman is entitled to compensation plus repatriation benefit. The Regular Army man is entitled to compensation plus the defence forces retirement benefit. And the public servant from the Treasury is entitled to superannuation plus £7,500. In each case, they are treated on the same basis when liability is imposed on civilian carriers. But when it is the Commonwealth upon whom liability is imposed, discrimination is made against the active serviceman. Nobody protests about the position of the civilian public servant who, under the 1959 act, is entitled to superannuation, plus £7,500, if he goes down when being carried by Ansett-A.N.A. Nobody protests that if his comrade is flying the same route by Commonwealth aircraft the Commonwealth provides £7,500 for him. But having imposed a liability on the civilian aircraft without discrimination in favour of the civilian public servant, the regular soldier, or the active service soldier, why discriminate when the liability is being carried by the Commonwealth? It is an unthinkable discrimination which cannot be justified.
.- merely want to point out that under the Repatriation Act and other legislation relevant to the present bill it is necessary for the serviceman to be killed while serving outside Australia, or within a prescribed area of Australia within a prescribed period or in actual combat with the enemy in order that repatriation benefits may be payable. As I pointed - out earlier, these circum-stances - could only occur on the rarest occasion in aircraft which are covered by the 1959 legislation. As I have maintained since the commencement of this debate, it is the view of the Government that, with respect to repatriation benefits, the Repatriation Act and not this legislation must apply.
.- When we extend areas of benefit for servicemen as we did for servicemen in Korea and in the strategic reserve we say that this is done for the protection of the serviceman and we increase his benefit. Insofar as we extend that for his protection now, it will be a deprivation of this compensation. Every time we entitle him to repatriation benefits, we correspondingly deprive him of civil compensation for damage suffered as a result of aircraft accidents.
– We do not put the civil airlines into the extended areas.
Question put -
That the sub-clause stand as printed.
The committee divided. (The Chairman - Senator G. C. McKellar.)
Majority . . . . 1
Question so resolved in the affirmative.
Clause agreed to.
Clause 7 agreed to.
Clause 8- (1.) The maximum liability of the Common wealth or a Commonwealth authority under this Part in respect of any one person, by reason of his death or injury, is Seven thousand five hundred pounds.
.- I move-
Leave out sub-clause (1.).
The basis of this amendment has been stated previously. I do not propose to go over it. The provision is unjust, inequitable and indefensible. I should merely like to refer to one matter which was mentioned by the Minister in his reply, namely that £7,500 was about the average amount of the damage that was suffered by persons in injuries or deaths of the kind contemplated by this bill. That is to say, £7,500 would be about the average amount of damage suffered by an injured person and £7,500 would be about the average amount of loss suffered by the dependants of a deceased person. That sounds all right on the face of it. In some way an average has been struck. But is it all right when one considers it? First, so far as the individual person is concerned, it is unjust because those who have suffered damage to the extent of less than £7,500 will receive full restitution for the damage which they have suffered. Those who have suffered damage amounting to more than £7,500 will not receive full restitution. So those who are injured most grievously are the ones who will not receive full compensation or restoration. That is unjust and inequitable and I do not see how the Minister can defend it. I have not heard in this chamber one word which justifies a provision like this. It is unjust to the individual and it is unjust to citizens collectively.
When you strike an average such as this, what are you doing? Persons who receive less than £7,500 - that is, persons who have been injured less grievously - receive complete restitution. If they are injured to the extent of £500, they are not given £7,500; they are given only £500. The Commonwealth pays only up to a maximum of £7,500. Those who are injured to a greater extent receive only £7,500. It is grievously unfair to speak of an average in that sense at all. Indeed it is quite fallacious. I do not say that it is a dishonest way of putting the position because I am sure that the Minister did not intend to be dishonest, but it cannot be right to say that this is the average amount of damage. The Commonwealth will be cheating people who are involved in these accidents - looking at them collectively - because it will not be paying the real amount of damage that is caused.
It proposes to pay to those injured to the extent of less than £7,500 only the amount of their damage. When you get to the limit of £7,500 you stop. The Commonwealth is getting it both ways.
When one examines. the situation, if it is true as the Minister has said that £7,500 is about the average for this type of award for personal injuries, or to relatives in the case of death, one sees that persons arc suffering and will suffer to a great extent if this principle is carried out. There must be, on the average, as many people suffering damage of more than £7,500 - or in any event as many concerned in an amount involving over £7,500 - as there are persons suffering damage below £7,500. How can honorable senators allow a provision to go through which means that persons who may be injured shockingly - have their legs smashed or suffer injuries to the extent of £20,000 or £30,000 and have to be nursed for the remainder of their lives - can get only £7,500 under this legislation? It is wicked. This bill should not be passed. I cannot understand why a Government should present such legislation to the Parliament. It is wrong. How can the Government justify it?
If there is a calamity in which people are injured, surely the right thing to do is to restore them as best you can by money in the ordinary way as is done in the courts of law. That is what is done for them if they are passengers in motor vehicles. If an honorable senator comes to Canberra by car as a passenger, almost certainly if he is injured it will be through the negligence of somebody and he would be entitled under the law to full compensation and full restoration for all the damage he had suffered. But if he travels by aircraft he will be limited to £7,500 as damages for injury, or his dependants to that amount for his death. This is wrong for members of Parliament and for other persons.
This type of legislation is completely indefensible. Whatever the international conventions may be, we can subscribe to them and meet our obligations, but we still are not tied down so far as our own citizens are concerned. We are entitled to do justice to them and should do it. The Commonwealth Parliament represents us all. We should be legislating on behalf of all the people. Why should we pass something that is palpably unjust?
– For the reasons I gave earlier in the debate, the Government does not accept the amendment proposed by Senator Murphy. The honorable senator has given the instance of a passenger in a car sustaining injuries and receiving damages assessed by a court. But the point he did not mention - and this is the important point which lies at the basis of our civil aviation liability legislation - is that in the case of a car accident the aggrieved or injured person must prove negligence. When we introduced the legislation in 1959 knowingly and consciously we said there was no need to prove negligence, and the balancing factor was that there should be an upward limit of £7,500.
Senator Murphy has said a lot of harsh things about this system. I do not think it is a harsh system. It has relieved those who have been injured of the responsibility* the expense and the anxiety of taking legal action for the recovery of damages in an action which would be very difficult indeed to prove. Let me repeat: It is not impossible to prove negligence in an aircraft accident, but it is acknowledged to be extremely difficult to do so. I merely mention the fact that when we passed our legislation in 1959 and took it to the States we got a reaction from the States which indicates quite well that State governmentsfour of them have passed the legislation and two have it in contemplation for early passage - have accepted this principle as being one that meets the peculiar circumstances surrounding an aircraft accident. For that reason the Government does not accept the amendment moved by Senator Murphy.
.-* Nothing the Minister for Civil Aviation (Senator Paltridge) has said has really met the case put by Senator Murphy. The Commonwealth possesses, as a litigant, very great advantages over a private person who sues the Commonwealth. It is our contention that the great disability which the individual possesses should not be added to by a prescription such as this. The Minister appears to base the whole of his case on the fact that it is no longer necessary, as he puts it, to prove negligence. He appears to think it follows that it is justifiable to fix a lower maximum, or a maximum at all, for damages. The Minister has said it is not impossible to prove negligence; it is admittedly very difficult to prove negligence in an aircraft accident in most cases, but not impossible. If it is not impossible, what is the point of depriving the person who can prove negligence of the right to claim more than £7,500?
This legislation takes away from the person who can prove negligence the right he might otherwise have had to establish damages over £7,500. The total may be £10,000, £20,000 or £30,000. That right is not granted by this legislation, and the fictitious justification for that is that you do not have to prove negligence. It penalizes the person who can prove negligence. One could have understood a provision which stated that in the absence of proof of negligence £7,500 was the maximum. We would not support that, but it would be understandable and defensible as a point of view. But what possible justification can there be for taking the position that a person who is in a position to prove negligence cannot get more than £7,500?, Senator Murphy’s amendment strikes right at the heart of the fallacy of the justification that the Minister gives for this clause. I strongly support the amendment and suggest there is not a shadow of justification for it in logic.
. -I support the amendment. The Government’s attitude on all matters of compensation, wages or conditions appears to be to prescribe in law a minimum. It provides a minimum for wages, workers’ compensation for specified damages in schedules and under the law, industrial diseases and progressive deterioration. But it is necessary in law to proceed further if the liability is there.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, 1 formally pass the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the negative.
– Why should a maximum amount of compensation be fixed by this bill? In many cases the law prescribes minimum amounts of compensation for damage or injury suffered by people. In my view, the amendment which Senator Murphy has proposed on behalf of the Opposition would remove the ceiling which the Government unjustly proposes to place on the compensation that is payable. It is important to the dependants of a person who is killed in an aircraft accident that there be no limit to the compensation. The stability of a person’s business might depend on such a factor. The Government should not be small-minded in this matter. It will demonstrate that it has a poor sense of values if it does not accept the amendment.
.- As I understand the position, there is no amendment before the chair. I understood Senator Murphy to suggest that we should vote against sub-clause (1.) of clause 8.
- Senator Murphy has moved by way of amendment that subclause (1.) of clause 8 should be left out.
– I see. I suggest that that goes too far because the bill proposes to give, in circumstances in which liability does not exist at present, the right to compensation of £7,500 or lesser amounts. I think it is proper to prescribe a maximum, but I thoroughly agree with the contention that it is completely and grossly unjust to deprive persons who could, apart from this bill, establish liability for negligence against the Commonwealth for amounts in excess of £7,500. I have had within my experience a case in which a jury assessed the damages suffered by a person in an industrial accident at £33,000. That was by no means an excessive amount. If a man falls and breaks his backbone, so that he is condemned to lie paralyzed from the waist down for the rest of his life, a considerable degree of damages is warranted. If such an injury occurred in an aircraft and the person concerned could prove negligence, could anybody justify depriving him of his right to damages?
It does not appeal to me at all that people ^should come here and legislate on the average and say that in one case right of access to absolute liability is given, without proving negligence, for recovery of damages up to £7,500. That is no justification at all for depriving another individual of his right which has been established by legislation as far back as the Judiciary Act, one of the earliest acts passed by the Commonwealth Parliament. Are we calmly to sit here and exempt the Commonwealth from liability in excess of £7,500 in the case of a person who can prove negligence? I admit the difficulty in proving negligence in some aircraft accidents, but I aver that it is palpably easy to prove negligence in other aircraft accidents. Cases are reported in the authorized law reports in which such liability is recorded.
I suggest, Mr. Chairman, that the appropriate way of amending clause 8 would bc to add to sub-clause (1.) the following proviso: -
Provided that this maximum shall have no operation in a case where a person establishes liability against the Commonwealth apart from the authority of this Part.
The effect of that amendment would be to allow the maximum to operate in respect of the newly created liability under the relevant part of the act and to preserve the plaintiff’s right to ordinary damages where he could establish liability at common law. If Senator Murphy’s amendment is not carried I shall offer my suggestion as an improvement.
– Senator Cohen referred to a very interesting aspect of this question when he brought forward the problem of a party who could prove negligence and establish damages in excess of the £7,500 which is proposed as the statutory maximum. That was a most interesting argument because, I suggest, it supports the Government’s notion of a maximum in cases where negligence is not established.
– But it is the maximum in a case in which negligence is established. That is what this section of the act provides.
– Yes. I suggest that the honorable senator’s argument regarding a person who is able to prove negligence, and is entitled to obtain an award exceeding the maximum amount of damages, in itself suggests that there should be some maximum in cases in which negligence is not established.
– That is more understandable, but it is not provided for in the section.
– If you agree with that part of the act, I think you agree with the principle of the act, because it is based on the proposition, not that negligence is difficult to prove, but that negligence has not to be proved. We are apt to lose sight of that fact. A person who can claim compensation under this act does not have to worry about negligence at all. An absolute liability to pay is imposed upon the Crown. It is not material to consider whether negligence is difficult or not difficult to prove.
– Then why not provide a minimum and leave the maximum to be fixed by the courts?
– When we are speaking of justice we must speak of justice not only for the person who has been injured but also for the Crown. Surely, where the Crown has been prepared to accept an absolute liability not requiring negligence or any element of negligence to be proved, there is a requirement, based on ordinary justice, that there should be fixed a maximum above which the Crown cannot be expected to be responsible.
– Because the whole notion of justice, I think, is that it should apply to both sides. If a person has not been negligent surely there is no justice in the proposition that he should be responsible for an unlimited amount of damages.
– Do you say that should be so in the case in which a person has been negligent?
– I have not come to that point yet. I am discussing Senator Murphy’s amendment. He has suggested, in effect, that the Crown should pay unlimited damages in cases in which negligence has not been proved. I suggest that that proposition is indefensible. That, would not be justice to the Crown; If Senator Murphy will re-consider his amendment, the argument may develop along different lines. I suggest that the simple answer to Senator Murphy’s proposition is that, whilst it might do justice to the party aggrieved, it certainly would not do justice to the Crown.
Senator MURPHY (New South Wales) LI 0.40]. - Surely the logical approach to this matter is to agree that there are two matters to be considered. First, in what circumstances should the Crown be liable? Secondly, if it is liable, ‘ what damages should it pay? In this bill the Government has accepted the principle that the liability of the Commonwealth should not depend upon the establishment of negligence. As was indicated earlier, that approach has been adopted in many other fields and, as we know from the legal historians, it was the earlier approach of the law.
A certain principle has been established. Whether the person affected suffers damage to the extent of ls., £1,000 or £20,000, liability is determined in a certain way. If death or injury occurs, there is no need to establish negligence. Having adopted that approach, this question arises: What damages should be paid to the person who has been injured? Surely a person who has been injured very seriously should be paid the full amount of his damage, if a person who has been injured less grievously enjoys that benefit. Why on earth should the Government say that, if a person suffers damage to the extent of £6,000, he shall be paid all his damage but if he is injured extremely seriously he will not be paid damages in full? There might be a lot of justice in the matters that were raised by Senator Wright, but once the Commonwealth accepts the principle that liability shall not depend upon the establishment of negligence, we must pitt that consideration aside.
How can it be said in justice that the maximum amount of damages payable shall be limited and that persons who are injured extremely seriously shall get only part restitution while others receive full restitution? Really, the Government should not entertain some equalizing notion and say, “ Because we are wiping out the need to establish negligence we intend to fix the amount of damages payable at £7,500”. To do that is quite unjust.
– As I understand it, you are advocating that everybody should prove negligence.
– That is the. logical conclusion to your argument.
– In this bill the Government has established the principle - the Opposition agrees with it - that when an aircraft accident occurs the liability of the Commonwealth shall depend upon the proof of death or injury and not upon the establishment of negligence. Under the existing law liability may depend on various circumstances. Sometimes one might have to establish negligence, sometimes a breach of duty, and sometimes some other circumstance. Now it is said that, because of the problems which are involved in establishing negligence, no one will have to establish negligence as a condition of liability on the part of the Commonwealth. The situation has been reached where the Commonwealth says that, in the case of death or injury in the circumstances set out in the bill, the Commonwealth is liable to pay damages. In other words, its liability is established. But then in clause 8(1.) a limitation of the amount of damages is introduced. That is the second ingredient.
– What we are saying in effect is this: We need not do this, but because we are doing it we are balancing it by doing something else.
– Is it not apparent that that raises a frightful inequity? One could understand the Government saying, as a rough measure of justice, “ Because we cannot afford to pay moneys, or for some other reason, we will pay persons only half or three-quarters of their damage “. But why set a maximum which will mean that persons who are injured to an extent of less than £7,500 will get full restitution while those who are injured to a greater extent will receive only partial restitution? People, and the dependants of those people, will be grievously hurt as the result of aircraft crashes. But under this legislation the persons who are most seriously injured will not get the full amount of their damages. Such a provision is wrong. It is quite inequitable and unjust. The suggestion that the sum of £7,500 is an average demonstrates how unjust the proposal is.
– I think Senator Murphy has overlooked the fact that normally if negligence was not proved there would be no liability. The alternatives are these: If negligence is proved a person shall be allowed to claim damages in full or the Commonwealth may say that, although there is no liability, it will pay everybody £7,500. One cannot say that we should take the matter to the stage where we will pay £7,500 all round and then suggest that there should be a further opportunity to claim damages for negligence. Otherwise the Commonwealth should say: “We will not pay anything unless negligence is proved. That is the existing law.”
– Order! The Minister is not speaking from his right place in the chamber. I call Senator Cavanagh.
– It has just come to my knowledge that, where negligence can be proved, an injured person has a common law right to recover in full. I am informed by the members of the legal profession who are seated near me that this bill takes away the common law right of the individual. It limits his damages to £7,500. Surely that is a denial of natural justice. The position is more serious than it appeared when we first started to discuss this matter. Legislation cannot be classed as being beneficial when it deprives an injured person of his common law rights.
– Being in my right seat I wish to arrive at the conclusion I was about to arrive at when I found I was not in my right seat. Normally under the law a person is entitled to claim for damages if negligence can be proved, and there is no limit to those damages. It is a rather expensive business. Do not let us forget that.
– Not if you win.
– Even if you win there is a fair cost in it. It can be a pretty expensive business. A person is entitled to claim unlimited damages if he can prove negligence. The proposition put forward in this bill is, in effect, that the Commonwealth will pay everybody without the need to prove negligence. Senator Cavanagh is trying to interject. I did not interrupt him, and I do not want him to interrupt me. The proposition in this bill is: If a limit of £7,500 is accepted nobody need prove negligence; the Commonwealth will pay everybody. You have the alternative under common law which, in effect, is that a person can set out to prove negligence and in that case the sky is the limit. On the other hand, as I have said, if you are prepared to accept the proposition in this bill, the liability is limited but the Commonwealth will pay everybody without the necessity to prove negligence.
– What the Minister for Customs and Excise (Senator Henty) has just said warrants two observations. The first is: Smith’s widow gets no advantage from the fact that Brown’s widow is able to make a successful claim. If Brown’s widow makes a successful claim in circumstances where negligence is not proved it is not just to deprive Smith’s widow of damage in a case where she can prove negligence. Therefore, the Minister’s argument does not apply.
The next comment to which the submission of the Minister is subject is this: We have been told that this liability has been accepted by the Commonwealth under an ex gratia scheme since the early years of the war. It was made no part of that ex gratia scheme that if Smith’s widow was paid compensation, Brown’s widow - who could prove negligence - should be deprived of her claim. I do not go the whole distance of saying that the maximum is inappropriate to the whole field of liability, but I do assert that no argument has been advanced yet - and I challenge anybody to produce an argument - that will justify depriving a widow who can prove negligence of her right to unlimited damages simply because heretofore, on an ex gratia basis, .the Commonwealth has acknowledged a liability to the other person, where negligence is not provable, for a fixed sum, and now it is giving the system statutory authority. Now a person is to be entitled to compensation without proving negligence.
Question put -
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The committee divided. (The Chairman- Senator G. C. McKellar.)
Majority . . . . 3
Question so resolved in the negative.
.- 1 move -
At end of sub-clause (1.) add “: Provided that this maximum shall have no operation in a case where the person establishes liability against the Commonwealth or a Commonwealth authority apart from the authority of this Part.”
Sub-clause (1.) will then read -
The maximum liability of the Commonwealth or a Commonwealth authority under this Part in respect of any one person, by reason of his death or injury, is Seven thousand five hundred pounds: Provided that this maximum shall have no operation in a case where the person establishes liability against the Commonwealth or a Commonwealth authority apart from the authority of this Part.
– You want it both ways.
– I do not want it both ways. I. remind the committee that legislation of this character was passed at the instance of. Liberal governments 60 years ago when for the first time, it was recognized that the industrial worker was subject to special risks. Liberal governments introduced a system of workers’ compensation under which compensation analogous to that provided by this bill was paid, without any proof of negligence, in respect of accidents arising out of and in the course of employment. But it was never suggested in those conservative and by-gone days that just because Smith was given that new absolute liability he should be deprived of his right to unlimited damages where he could show that his accident was due to negligence. Now, in 1963, in the case of aircraft liability, we are giving benefits, mainly to Commonwealth servants and people who are travelling for the purposes of the Commonwealth, that are really analogous to workers’ compensation. We have found that our ex gratia scheme has been unlawful, so we are transforming it into a statutory scheme, and, at the same time, taking the opportunity to deprive people who can prove negligence by the Commonwealth or a Commonwealth authority, of their common law right to damages if those damages exceed £7,500.
The only other point I want to mention is one that I have stated before. So many of the things that I have said before remain not understood that I shall risk repetition. It is no satisfaction to Brown’s widow, who is deprived of compensation above £7,500 in a case where she can prove negligence, that Smith’s widow has been granted under this act compensation up to £7,500 in a case where she cannot prove negligence. It is preposterous to suggest that we should trade one individual’s rights for those of another under the cover of legislation of this sort. To say that anybody who resists that preposterous proposition is having it both ways betokens complete confusion.
– I rise at this stage merely to indicate formally that the Government does not accept the amendment proposed by Senator Wright. I do not propose to pursue the matter further.
Senator MURPHY (New South Wales)
Senator Wright. His proposal is not what was desired by the Opposition as the ideal provision under this legislation - we have already dealt with that - but the justice of it has been demonstrated again and again throughout the argument on this bill. The case remains unanswered. As I understand it, this bill will give a right to certain persons to obtain damages to a limit of £7,500 without establishing negligence as a condition of liability. But the bill does something more. It eats into a right that has been enjoyed for many years under the Judiciary Act. I refer to the right to sue the Commonwealth in the same way as a private person can be sued. Apart from this enactment the people concerned would be able to sue the Commonwealth if the Commonwealth were negligent and had committed a breach of duty. If I recollect rightly, by section 56 of the Judiciary Act, the Commonwealth Parliament many years ago made the Commonwealth liable in the same way as a citizen would be liable. That liability is now being taken away. A right which certain persons have had for many years is being taken away from them.
When one reflects on what has been done in relation to the definition of “ passenger “, it fs very debatable whether persons would want to..be covered by that definition.- This is not only a protective bill; it is a bill which takes away a right. It should be clearly understood that that is what it is doing. It is taking away the right that persons have to sue the Commonwealth and to recover damages to which they are entitled in excess of £7,500. For those reasons which have been eloquently expressed by Senator Wright I support the amendment.
– Apparently this limitation does not exist in the Commonwealth Employees’ Compensation Act. I should like to know why the Government is making an exception in this case. Can the Minister enlighten me on that?
– The limitation was in the 1959 legislation.
– The answer given by Senator Henty is correct. It is true, as the honorable senator has said, that the limitation is not in the Commonwealth Employees’ Compensa tion Act. On proof of negligence action can be taken against the Commonwealth for damages, and there is no limit, but this provision in respect of aircraft accidents conforms to a pattern which was adopted in 1959.
– For clarity, I think it should be said that in 1959, when introducing a similar liability in respect of commercial aircraft, this same provision was included. Now we are dealing with the imposition of a liability on the Commonwealth. The point I have made and which has not been answered is that for 59 years Liberal governments conceded that industrial workers were subject to special accident risks and gave them a right to compensation without the necessity to prove negligence. It did not occur to anybody then that there was justification for depriving persons of their right to damages if they could prove negligence. But that is the idea that occurred to the framers of the 1959 legislation and it is completely contemptible.
.- It appears to me that there is one matter which, perhaps, has not received sufficient attention in this debate. I refer to a class of accident which, fortunately, is comparatively rare when compared with the great toll of the road and other ways in which people can suffer injury. We know that it is an unusual occurrence in these days for an aircraft to crash with . fatal results or with results occasioning severe injury. Opposition senators, Senator Wright and others have expressed some forcible criticism in this debate. But apart from the matters that they have raised, it seems to me that there is a practical question which the Minister might consider. As I have said, injury to persons in aircraft accidents is comparatively rare. So it might be said that a very small number of cases will be affected by the provision under discussion. The Minister has said that it is not impossible, even if it is unusual, for negligence to be established.
Does it not follow that the number of cases in which negligence might be established would be even smaller than, the number of cases in which people might be injured or killed as a result of aircraft accidents? Therefore, in the words proposed by Senator Wright to be added to the clause, we are dealing with an exceptional case in which a person can establish negligence. Why not say frankly that if a limited number of persons can establish negligence they should not be deprived of rights which they otherwise would have enjoyed? I put that to the Minister as a practical suggestion quite apart from the question of principle on which we have been concentrating. Very few people would be concerned in this proposal. If it is not accepted the injustice would be very great to that small number of people who suffer injury and who must receive something less than proper compensation because there is a limit of £7,500.
Question put -
That the words proposed to be added (Senator Wright’s amendment) be added.
The committee divided. (The Chairman- Senator G. C. McKellar.)
Majority . . . . 1
Question so resolved in the negative.
Clause agreed to.
Remainder of bill - by leave - taken as a whole.
.- I would ask the Senate to note that clause 11, in part, reads as follows: - (1.) Subject to this section, this Part applies to the carriage in an aircraft operated by a person other than the Commonwealth or a Commonwealth authority of a passenger being -
a person who is -
I take it that the intention of this provision is to make it clear that if a seaman joins a ship on articles in Sydney and becomes disabled or injured in Perth and has to be returned, as I understand the provisions of the Navigation Act, to his home port at the conclusionof his convalescence or hospitalization at the expense of his employer, Part III. of the bill will apply if he is employed by the Commonwealth or a Commonwealth authority, which may be the Australian National Line. In other words, some trouble is taken to make it clear that this part applies to the carriage of a seaman in aircraft not operated by the Commonwealth. I cannot find in Part II. any similar provision made to apply to aircraft operated by the Commonwealth, and I should like to know the reason why. Be it noted that clause 11 (3.) specifically provides that the active serviceman who is killed or injured in circumstances entitling him to a repatriation benefit is excluded, but the seaman who, after receiving seamen’s compensation, is travelling pursuant to provisions that will land him back in his home port, is included. I wonder why.
– I am informed that the answer is that the seaman is included because he is a seaman employed by a Commonwealth authority, the Australian National Line.
– Why in the part that deals with aircraft not operated by the
Commonwealth and not in the part that deals with aircraft operated by the Commonwealth?
– He is covered in part II., because all passengers are covered in part II.
– Why the special mention of him in the other case? Why would he not be covered simply as a passenger?
– Because that applies only to passengers for whom the Commonwealth is responsible. It does not cover all passengers.
Remainder of bill agreed to.
Bill reported with amendments; report adopted.
Bill (on motion by Senator Paltridge) read a third time.
Motion (by Senator Sir William Spooner) - by leave - agreed to -
That leave be given to introduce a bill for an act to ratify and approve an agreement for the further variation of the agreement entered into between the Prime Minister of the Commonwealth and the Premiers of the States of New South Wales, Victoria and South Australia, respecting the River Murray and other waters, and for other purposes.
Bill presented, and read a first time.
Standing Orders suspended.
[11.24]. - I move -
That the bill be now read a second time. This bill seeks the approval of Parliament to a fifth further amending agreement to the River Murray Waters Agreement. This amending agreement provides firstly - and most importantly - for the construction of a major storage at Chowilla on the Lower Murray; secondly, for minor amendments of a policy nature to the principal agreement, and finally for amendments of a textual nature to the principal agreement. I do not propose to discuss the proposed amendments which are only of a textual nature. Opportunity is merely being taken to effect a partial tidying up of the principal agreement. Should the Senate so wish, these amendments can be examined during the committee stages.
I shall, however, briefly outline the two minor policy amendments before discussing the main purpose of the measure. The first relates to the depth of water to be maintained in channels and locks on the river Murray. Clause 21 of the principal agreement provides that locks shall be constructed to provide for vessels drawing five feet of water. In practice channels are also maintained to this level by dredging. It is proposed that this depth should be reduced to four feet six inches. The depth of the existing locks will remain unchanged but channels will only be dredged to four feet six inches and significant savings will be effected. Any locks constructed in the proposed Chowilla dam or any further locks will provide a depth of only four feet six inches and capital savings will result. The depth of five feet allowed for the passage of loaded barges. Such traffic no longer exists on the river and the proposed depth of four feet six inches is quite satisfactory for the present and any foreseeable river traffic.
The second minor policy amendment relates to voting by members of the commission in times of drought. Sub-clause 51 (8) of the principal agreement makes provision in periods of drought for the drawing by the States of New South Wales and Victoria of water additional to their prescribed entitlements. Such drawing, however, is conditional upon the water being replaced by those States from their tributaries below Albury and also conditional upon such drawing not prejudicing the other two States. In the event of a disagreement between New South Wales and Victoria as to the quantity of water to be used or as to the manner in which it is to be replaced, the agreement prescribes that the matter shall be determined by the commission by means of a majority vote.
No provision is made however for the resolving of the decision in the event of their being an equality of votes between the four commissioners constituting the commission. The amending agreement proposes to give the Commonwealth commissioner a casting vote as well as a deliberative vote in such an eventuality. In the somewhat unusual circumstances I have outlined an urgent decision would be required. Recourse to arbitration would be impracticable owing to the delay involved. The Commonwealth as a disinterested party in such a dispute would be able to give an impartial judgment.
I now propose to deal with the principal object of the measure - that of providing for the construction of Chowilla reservoir - and in doing so will outline the circumstances leading up to the attaining of the agreement at present before the Senate. The demand on the waters of the river Murray is increasing year by year. At the same time the construction of reservoirs and irrigation areas on its tributaries below Albury, as New South Wales and Victoria are entitled to do under the agreement, is decreasing supplies available in the main stream. The continuation of increasing demand and decreasing supply would give rise to a critical situation in the event of a major drought.
As’ honorable senators are aware, the River Murray Commission is constituted by representatives of the Commonwealth and the States of New South Wales, Victoria and South Australia. It was arranged by these four Governments that the commission should carry out a full investigation of a proposal advanced by the South Australian Government that a major storage should be provided on a site on the lower Murray. The commission was also asked to suggest the best means of sharing the water from such a storage.
The commission carried out a comprehensive investigation. It confirmed that in the event of past seasonal conditions recurring the restrictions on the requirements of the States could be such as to bring about serious capital losses.
I do not propose to describe this somewhat complex investigation at any length. In brief, the commission examined the situation resulting from the demand in the immediately foreseeable future and the supply in the years 1970 and 2000. The supply position was based on the use to which the tributaries of the Murray below Albury would be put within New South Wales and Victoria in those years, which would diminish their flow into the ‘ main stream. The commission then had to take into account the seasonal conditions which might operate in the future; It calculated the situations which would arise in each of 51 years on the basis of a repetition of the seasonal conditions which occurred between 1905 and 1956.
As a result of these calculations the commission ascertained that on the. level of tributary controls which were likely to be in effect by the year 2000 there would be fourteen seasons out of the 51 when restrictions in supplies to the States would have to be imposed; that is, restrictions would be imposed in about one year in four. During this 51 -year period, the total deficits in the required level of supplies would amount to 13,400,000 acre feet. The deficits would be particularly severe in three seasons, namely those equivalent to 1914-15, 1938-39 and 1944-45. In the last of these seasons, New South Wales would have received only 22 per cent, of its normal requirements; Victoria would have received only 38 per cent, and South Australia 56 per cent. Under such conditions there would have been heavy losses of income and capital investment, heavy re-establishment costs and loss of production in the years immediately following the droughts.
Should honorable senators consider that the year 2000 is still a long way off I hasten to add that the situation resulting from the tributary controls in the year 1970 will be little better than that which I have given in respect of the year 2000 tributary controls. I should perhaps mention that the proposed Chowilla reservoir could hardly be completed and filled much before the year 1970.
The commission examined possibilities of other storages and a number of ways in which the water might be shared. It came to the conclusion that a major storage at Chowilla constructed and operated as a River Murray Commission work was the best solution. With such a storage, restrictions would need to be imposed in only three rather than fourteen of the years in the 51-year period. The total deficit in the 51 years would be reduced to less than one quarter - 3,600,000 acre feet as contrasted with 13,400,000 acre feet without Chowilla. In the three critical years the 1914-15 deficit would be reduced from 2,500,000 acre feet, without Chowilla, to about 500,000 acre feet, the 1938-39 deficit would be eliminated and the 1944-45 deficit would become 1,700,000 acre feet as contrasted with 2,500,000 acre feet without Chowilla.
I might add that when speaking of deficits on “ normal requirements “ I have been referring particularly to the immediately foreseeable needs which are predominantly for irrigation, stock and domestic requirements for the rural com’munities in the Murray Valley. The effect of restrictions of the order I have indicated would, of course, be disastrous on such communities. There is, however, an additional factor. Adelaide is becoming more and more dependent on the Murray for its industrial and domestic requirements. Indeed, by the year 2000 a very large percentage of Adelaide’s water will be drawn from this source. At such a time if river flows were as low as I have indicated as being possible, the salinity of Adelaide’s supplies would become intolerably high.
The Commonwealth, after considering the commission’s report, convened a meeting of the four governments. Little difficulty was experienced in obtaining agreement in principle to the provision of a reservoir at Chowilla. There were in addition two ancillary matters discussed at this meeting. The first one was a suggestion that a certain portion of the waters of the Menindee lakes storage might bc made available to all three States, as a temporary measure before the filling of Chowilla, as though such water was water in the river Murray. This proposal had been investigated by the commission and found to be of considerable benefit to all States.
Agreement has been attained by the four governments on the basis on which such waters in the Menindee storage will be made available to the River Murray Commission for allocation to the three States. The arrangement is to operate for seven years as from the beginning of this year and should assist in the mitigation of any droughts which may be experienced during the period of the construction and filling of the Chowilla reservoir. This agreement is the subject of a separate measure which I propose to introduce concurrently with this one.
The other matter arising at the conference was the reluctance of New South Wales to commit itself to meeting its quarter share of the cost of Chowilla at this stage. The Commonwealth has agreed to lend that State its quarter share by way of financial assistance, and this is the subject of another measure to be introduced by my colleague the Treasurer (Mr. Harold’ Holt).
I shall now provide a few facts on the proposed reservoir. The site proposed for the dam is. some 6 miles downstream from the Victorian-South Australian border and about 38 river miles upstream from Renmark. The water will, however, be banked up as far as Wentworth - some 120 river miles. The dam will be 41 feet high and 3J miles long. The area of the reservoir will be over 500 square miles. Its capacity will be 4,750,000 acre feet and as such will be by far the greatest reservoir in Australia. Lake Eucumbene is 3,860,000 acre feet, Eildon 2,750,000 acre feet and Hume 2,500,000 acre feet. The reservoir will be constructed by the South Australian Ministry of Works as constructing authority to the River Murray Commission and will be subject to the customary approval and oversight of the commission. It is estimated that the cost will be £14,000,000.
As the proposed reservoir will be downstream from the principal irrigation areas of New South Wales and Victoria, I should explain how it will provide substantial benefits to those States as well as to South Australia. This arises from the basic obligations, incorporated in the principal agreement, of the two upper States for the sharing of the Murray waters with South Australia. In normal seasons New South Wales and Victoria are obliged to make available to South Australia 1,254,000 acre feet of water in prescribed monthly quantities. In periods of declared restrictions South Australia is at present entitled to three-thirteenths of the available water in the storages on the river, principally the Hume reservoir and Lake Victoria. The upper States have the right to draw water from the Hume reservoir and to replace it with the equivalent amount of water from their tributaries flowing into the Murray below the Hume.
In a normal year water in Chowilla could be used to satisfy the whole of the South Australian entitlement of 1,254,000 acre feet without drawing on the Hume. In periods of restriction, releases of the Hume water to provide South Australia with its full share of available water would also be considerably reduced or even eliminated. In brief, with the addition of Chowilla the water in the Hume reservoir will be available for the most part for sharing between New South Wales and Victoria alone.
There is another important amendment contained in the present measure. It is that in periods of restriction the available water will be shared equally between the three States, rather than in the present ratios of 5:5:3. This, of course, will be most important to South Australia; not only will there be much more water available in periods of restriction, but it will also obtain a larger share of such water.
The constructionof Chowilla reservoir will be a major undertaking which will be of very great importance to millions of Australians in the future. The Government takes some pride in the part it has played in attaining a satisfactory agreement with the three other Governments concerned. The ratification of this agreement will enable the work to progress as fast as possible. I commend the bill to the Senate.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Sir William Spooner) - by leave - agreed to -
That leave be given to introduce a bill for an act to ratify and -approve an agreement between the Prime Minister of the Commonwealth and the Premiers of the States of New South Wales, Victoria and South Australia with respect to waters of the Darling River stored at Menindee.
Bill presented, and read a first time.
Standing Orders suspended.
[11.40]. - I move -
That the bill be now read a second time.
This measure seeks the approval of Parliament to an agreement recently made between the Commonwealth and the States of New South Wales, Victoria and South Australia, for the use of certain water stored in the Menindee lakes storage. The measure is supplementary to the bill seeking approval to. the fifth further amending agreement to the River Murray Waters
Agreement. In my second-reading speech on that bill I referred to the circumstances leading up to the agreement for the construction of a major storage at Chowilla on the lower Murray. It is possible, however, that adverse seasonal conditions may occur before the major Chowilla reservoir can be completed and filled. The Government of New South Wales accordingly offered to make some of the water in the Menindee storage available for use by the River Murray Commission for allocation to the three States. It was considered that the additional water would be particularly valuable in time of drought.
This proposal was examined by the River Murray Commission. The commission ascertained that in a year of drought, such as 1914-15, when supplies to the whole system would be reduced to about 30 per cent of the demand, the addition of the Menindee water would increase supplies to about 55 per cent, of the demand. The Menindee storage is a series of storages constructed in lakes adjacent to the Darling River. At present, water is pumped from the storage to meet the industrial and domestic needs of Broken Hill. The storage also meets irrigation needs downstream which are at present being developed.
The New South Wales Government is retaining 90,000 acre feet per annum and a reserve storage of 390,000 acre feet to enable it to meet these commitments. The agreement provides, with a certain proviso which I shall mention later, that water stared in excess of 390,000 acre feet shall be available to the River Murray Commission for allocation between the three States as though it were water available for sharing from the river Murray. In normal times the surplus above 390,000 acre feet will be shared equally by New South Wales and Victoria, subject to South Australia receiving its full entitlement under the agreement. In periods of declared restriction this surplus will be shared equally by the three States. In both normal times and periods of restriction, however, New South Wales is permitted to draw 90,000 acre feet per annum without debit to its share.
The proviso I mentioned earlier is that once the storage has fallen below 390,000 acre feet no water is to.be made available for sharing until the storage has recovered to 520,000 acre feet. This proviso is necessary owing to the physical characteristics of the storage. The present capacity of the storage is 1,000,000 acre feet and when repairs have been carried out to Lake Cawndilla, one of the lake storages; the capacity will be 1,500,000 acre feet.
It has been agreed that in consideration of the River Murray Commission’s use of the water a portion of the capital charges attributable to this storage will be paid. The agreed sum to be paid to the New South Wales Government is £160,000 per annum. This will be payable by the River Murray Commission and will be met equally by all four Governments. Should, however, the effective capacity of the storage become less than 600,000 acre feet, such as could occur through partial failure of the storage, no contribution to capital charges will be paid in respect of the time in which the capacity is below- this figure.
The State of New South Wales is to operate the storage in accordance with the provisions of this agreement and to maintain it in good order and condition, having regard to the storage capacities set out in the agreement. The three States, through the River Murray Commission, are to share equally three-quarters of the cost of operation and normal maintenance of the storage, the remaining quarter being attributable to New South Wales by virtue of the water it is retaining for its own use. The agreement is to operate for seven years as from 1st January, 1963. It is expected that Chowilla will be completed and filled before the end of this period. This measure should, however, provide a valuable contribution towards the mitigation of any droughts which may occur in the next few years and, accordingly, I commend the bill to the Senate.
Debate (on motion by Senator Cavanagh) adjourned.
In committee: Consideration resumed from 17th October (vide page 1272).
Proposed expenditure, £3,181,000.
Attorney-General’s Department- - Capital Works and Services.;
Proposed expenditure, £263,000.
– In connexion with the administration of the AttorneyGeneral’s Department, I address to the Minister for the Navy. (Senator Gorton), who represents the Attorney-General (Sir Garfield Barwick) in this chamber, some questions relating to the report received years ago by the Government from the Constitutional . Review Committee. . The Minister will recall that 22 recommendations of the committee were tabled in the Parliament in October, 1958, and .that the complete reasons of the committee were furnished a year later. From time to time, members of the Opposition have addressed questions to the Government for the purpose of. ascertaining whether the Government had considered the report. Oyer a period of five years or so, we were told that the Government was still considering it. 1 now ask the Minister: Has the Government ever looked at the report? Has there been a submission to. Cabinet by the AttorneyGeneral? Have recommendations been made? What is the reason for the delay? Will the Government come straight out and say that it is opposed to all the recommendations? Is the true position that the Government has not considered the recommendations at all?
– All I can say is that the report to which the Leader of the Opposition (Senator McKenna) has referred was the report of a parliamentary select committee-
– Of a joint committee.
-Of a joint committee, if I remember correctly; and that report has been considered by the Government. I do not know of any submission from the Attorney-General’s Department on it, nor do I know that it specifically calls for a submission, the report itself having been a matter of consideration by the Government and still being under its consideration:
, In view pf the rather conflicting statements we have heard in recent months about restrictive trade practices, I am wondering whether the time has not arrived for the Government to place the administration of the Department of External Affairs and the Attorney-General’s Department under two separate Ministers. If I remember correctly, in his last policy speech the Prime Minister (Sir Robert Menzies) told the people of Australia that legislation would be introduced to deal with this problem. The Attorney-General (Sir Garfield Barwick) later outlined his proposals, but since then the Prime Minister, at a Chamber of Manufactures dinner I think, is reported to have rebuked the AttorneyGeneral and to have indicated that he did not agree with the proposals.
We have been told from time to time in answers to questions that the AttorneyGeneral outlined his proposals so that the people who were concerned with them directly and indirectly could consider them, and that it was possible that consequent upon the application of their collective wisdom legislation would be introduced. Did the Government want to be told by the interested parties how the legislation ought to be framed? I should think that the only persons who would take a keen interest in the matter would be those who were concerned directly with the monopolies and restrictive trade practices. It is rather unfortunate that in this country the majority of the people take a keen interest in such matters only when they awake one morning and find that the relevant legislation has been passed and the damage has been done. I think the people of Australia will find themselves in that position in relation to decimal currency.
The fact that two years have elapsed since the promise to deal with restrictive trade practices was made indicates that too much work is being placed upon the shoulders of one man. A person cannot spend half of the year overseas as Minister for External Affairs and then be expected to administer the other portfolio for which he is responsible. I should like the Minister for the Navy (Senator Gorton) to say whether the people of this country are still waiting for legislation to deal with restrictive trade practices because the Attorney-General is so fully occupied with his other ministerial duties. One of the main principles of democratic government, as we understand it, is that when a promise is given to the people some attempt should be made to honour it or, if it has not been honoured, to advance some reason for the delay. The answers that have been given by various Ministers, particularly the Leader of the Government in this chamber, iri recent times have not indicated any real intention to proceed with the legislation.
Although I do not say it in a derogatory sense, Senator Sir William Spooner is a rather hard-headed politician. He knows that elections cannot be won on air. I should hate to think that the failure to introduce this legislation stems from any thought in his mind that if the Government proceeded with it the Government’s friends might not be as kindly disposed as they have been in the past. I should feel very much hurt if I thought that national politics had reached such a low ebb. As I said earlier, the Prime Minister promised this legislation in his last policy speech. Now we are about to contest another general electon. Monopolies and unfair trade practices are still as rife as when the promise was made. One wonders whether we will ever see the legislation. How can the people have any faith in a party which makes such a promise but does nothing about honouring it? Perhaps if the Attorney-General had been relieved of his responsibility to administer the External Affairs portfolio we would have seen more action in this field. I trust that the Minister will give some thought to this matter. If he does not he will be failing the people. In the very unlikely event of the Government’s being returned on 30th November next - one must admit that sometimes unlikely events do happen - are we to be promised again that legislation of this type will be introduced, and nothing will come of the promise? I believe that this is vital to most people. Only a little while ago I read in the Melbourne press that companies interested in stone quarries had got together and increased the price of crushed rock by more than 200 per cent. I was interested at the time. It is true that the municipal councils of Victoria brought pressure to bear and had the price reduced a little, but it is the responsibility of this Government, which has been in office for a long time now, to see that such conditions are not allowed to continue.
If the Government in the future allows the department that should deal with such an important matter as restrictive trade practices to be controlled by a person holding more than one portfolio I do not expect that much will be done. I am not questioning the capabilities of the Minister in charge of this portfolio, but I am directing attention to the fact that through some mismanagement we have not yet seen the bill that was promised. I want to be very kind at this early hour of the morning. The people have not been treated fairly. The Government has not carried out the job it promised to do. I have a sneaking suspicion that the reason why the Minister has not brought in this legislation is that he has been out of Australia for three or four months each year. If that is the reason, I ask: Are we ever going to get the bill that the people want?
Wednesday, 23rd October 1963
– I want to emphasize what the Deputy Leader of the Opposition (Senator Kennelly) has said. The subject of restrictive trade practices is one of the most vital questions that concern the people of Australia at present. Honorable senators on this side of the chamber have repeatedly asked questions about this matter and have been told by the Minister representing the Attorney-General that progress is being made. We have been told, of course, that this is a State matter over which the Commonwealth has no direct control, but that consultations and conferences were being held between State and Federal representatives. Over a period of some three years we have been told that progress is being made, but during that period we have had the case of Reid Murray Holdings Limited with 70 subsidiary companies going by the board and causing ten of thousands of people in Australia to lose their life savings. Notwithstanding this, up to the present.no real progress has been made to control restrictive trade practices that are rampant throughout the country and ruining people.
I re-emphasize what the Deputy Leader of the Opposition has said. We seek some assurance from the Minister that something definite will be done. Of course, as Senator Kennelly has said, the people will have their say on 30th November. According to what I have gathered, on good information, the present Attorney-General (Sir Garfield Barwick) will not be in charge of the department after that date. This is a serious matter that concerns the welfare of all the Australian people. Even the United States of America, which is. regarded as the stalwart and bulwark of capitalism, has its anti-monopoly laws. Over the past few years in Australia we have had the instances of Reid Murray Holdings Limited, to which I have referred, and of the Stanley Korman interests and Testro Brothers. Consolidated Limited. Through the activities of these companies, unrestricted by legislation or any federal action whatsoever, tens of thousands of people have been robbed of their life savings. Nothing whatever has been done to stop this, and apparently nothing is intended by this Government.
Only recently we read that a conference was held in Canberra between big business interests and the Government in regard to the legislation proposed by the AttorneyGeneral. Since then the Government has been completely silent. That is a fair indication that because of pressure from vested interests the Government intends, in this sphere of activity, to chicken out altogether as it has chickened out on other important matters during the past few years. I seek from the Minister some assurance that the matter is being treated as one of urgency, and that the Government is not prepared to wilt in the face of opposition and pressure from outside interests. This is a most important issue that affects the welfare of the whole economy. If unrestricted trade practices are allowed to continue we cannot hope for any economic stability.
– I am happy to be able to spare the Deputy Leader of the Opposition (Senator Kennelly) any hurt and suffering that he fears might be inflicted upon him. Since his rather unworthy suspicions about the Leader of the Government (Senator Sir William Spooner) are completely unfounded he will not have to suffer the hurt he said he would suffer if his suspicions were true.
In relation to the matters that have been raised, the position is well known to all honorable senators. The whole subject is one of enormous complexity, as Senator Sandford admitted. It is one that affects all aspects of the economy and one in which both State and Federal governments are involved. Consequently it has been the subject of a great deal of consultation not, as the Deputy Leader of the Opposition suggested, for the purpose of this Government’s being told what to do, but for the purpose of allowing all those affected by such legislation to have a chance of knowing what is proposed, and of expressing their views, and giving the reasons why they hold those views so that’ all these things may be taken into consideration.
Some progress has been made. Notes have been distributed to members of the Parliament, and it is quite wrong to say that no progress has been made. I am certain that there is no justification for saying that this matter, which is complex, is being held up because the AttorneyGeneral happens to hold another portfolio. The matter itself has complications which are difficult. However, I have no doubt at all that after 30th November this Government will continue its efforts until a bill is introduced which is sensibly applied for the benefit of all people.
Senate adjourned at 12.12 a.m. (Wednesday).
Cite as: Australia, Senate, Debates, 22 October 1963, viewed 22 October 2017, <http://historichansard.net/senate/1963/19631022_senate_24_s24/>.