27th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMuIIin) took the chair at 10 a.m., and read prayers.
– My question is directed to the Minister representing the Minister for Education and Science. 1. refer to the numbers of students in colleges of advanced education. Can the Minister inform the Senate how it comes about that, on a relative population basis, there are approximately 10 times as many students in colleges of advanced education in Victoria as there are in New South Wales?
– 1 shall have to take time to look into that comparison.
35-HOUR WORKING WEEK
– Has the Leader of the Government in the Senate seen a Press report that Mr Whitlam and Mr Hawke, the President of the Australian Council of Trade Unions, spoke from the same platform to open the Senate election campaign last night? Is it correct that Mr Hawke, in his speech, pressed for the introduction of a 35-hour working week? With Mr Whitlam and Mr Hawke speaking from the same platform to open the same Senate election campaign, does this not align Mr Whitlam and the Australian Labor Party with Mr Hawke and his policy of a 35-hour working week and the militant use of costly and disruptive strikes if necessary?
– As to the first part of the honourable senator’s question, 1 am not aware whether Mr Hawke was on the platform with Mr Whitlam last night, because I have not had an opportunity to check that out. Perhaps I can accept the statement that was made, as apparently it is not under challenge. As to the reference to a 35-hour week, there should be no worry about a challenge of that either because it is in the platform, constitution and rules approved by the Australian Labor Party at its 28th Federal Conference in Melbourne in 1969. The fact of the matter is that the Australian Labor Party is committed to a proposal for a 35-hour week and, therefore, it must accept all the responsibility for and consequences of what might flow from the introduction of a 35-hour week in the circumstances in which the Labor Party’s claim is being presented.
– 1 address a question ro the Minister representing the Minister for Trade and Industry. Are ihe statistics of the Australian Wheat Board correct in saying that Australian wheat sales to Rhodesia have increased by 25 per cent during the past 11 months? Is this not a breach of the United Nations resolutions on Rhodesia? Does the Government still abide by the often refuted argument that these wheat sales to Rhodesia are necessary for humanitarian reasons when it is well known that the African population of Rhodesia does not include wheat as part of its diet?
I have said before that the sale of wheat to Rhodesia is within the provisos of the United Nations resolutions relating to that matter. I have not available to me the statistics relating to sales, but I shall endeavour to get them and make them available. If the honourable senator is purporting to suggest in his question that the statistics which have been given have been interfered with or are inaccurate, or anything of that nature, I would have to refer that matter.
– I am not suggesting that.
The honourable senator is not suggesting that. If the honourable senator is just asking for the figures I shall get them for him. As to the conditions of sale, 1 repeat that the sales are made under terms and conditions which are quite within the framework of the rulings and provisos of revolutions made by the United Nations.
– My question is addressed to the Leader of the Government in the Senate, ls it a fact that no oil strike of national importance has occurred on land in Australia or in Australia’s adjacent waters for many months and that in fact it is some years since there was a notification of a major strike? Is the Government concerned at the apparent lack of success in recent exploration? Will the Federal Government continue to make a close study of this matter which is of immense importance and consider raising immediately Commonwealth oil search subsidies so that there may be a regeneration of interest in the search for oil in this country?
Senator Sir KENNETH ANDERSONI am sure that it is accepted historically that the decision of this Government and the legislative decisions that were taken by the Parliament to provide an oil search subsidy have had the effect of enabling Australia to come quite close to independence in relation to oil supplies. Whereas down through our history we have been dependent upon the importation of oil, which has made a heavy drain on our resources, in more recent years, because of the oil search subsidy, crude oil has been found in Australia. This has been of tremendous help to our economy. The honourable senator is suggesting that the tendency is for a lag in oil exploration and that we need to keep the pressure on because of our growing internal demands for oil. This is a matter which comes within the portfolio of national development. I would need to direct the question to the Department of National Development for a reply.
35-HOUR WORKING WEEK
– I ask the Leader of the Government a question which follows on the question asked by Senator Young. Is not the stand taken by Senator Young and those who sit on the Government side of the chamber in regard to a 35-hour week similar to the stand taken by their predecessors in relation to the 48- hour week, the 44-hour week and the 40- hour week?
The question the honourable senator asked concerns action taken in relation to the 48-hour week, the 44-hour week and the 40-hour week. In the end result we have been able to accommodate the. 40-hour week over a period of years, but its initial impact was disastrous to the New South Wales economy. It was introduced without any regard to phasing in or anything else. I do not intend to argue that the economy has not been adjusted over a period of time to meet the reduced hours, but that is vastly different to a proposal for the introduction of a 35-hour week without regard to the economy and without regard to the employment of the people. These factors have to be taken into account. Let us not make any bones about the fact that the Labor Party is committed to advocating the introduction of a 35-hour week.
35-HOUR WORKING WEEK
– Would it be possible for the Leader of the Government in the Senate to obtain for the Senate an estimate of the possible cost to the nation of a 35-hour week, especially that part which is concerned with primary industries which already are hard pressed?
Senator Sir KENNETH ANDERSONI have seen figures which indicate what the application of a 35-hour week would mean in short term. I am not in a position to quote them now. nor am I certain as to the accuracy with which it can be estimated. So I cannot help the honourable senator very much in that regard. I do not think anybody - even the Australian Labor Party - would deny the implications of this proposal to rural industries in the short term. It would pose a very real problem to rural industries, lt would have a profound effect upon the whole of the nation.
– My question, which follows on those asked by Senator Young and Senator Kennelly, is directed to the Leader of the Government in the Senate. Is it a fact that a substantial section of the Commonwealth Public Service and the Commonwealth statutory offices have for many years been working a minimum of less than 40 hours and close to 35 hours a week, and that these conditions have been agreed upon between the agencies representing the Government which negotiate hours and working conditions with the unions and associations of the Public Service? In view of this situation, is the Government now altering its viewpoint in respect of shorter hours for its salaried staff? Does the Government intend to take any steps to increase the hours worked by its salaried staff in view of its criticisms of the Labor Party’s proposal for a 35-hour week?
– Senator Bishop is asking a broader question than those asked previously, and really on another issue. He has asked about certain terms and conditions for the Public Service where there is provision for a nominal 40- hour week, overtime and other penalty rates. That is a different matter from what we were speaking about previously. We have been talking about a national proposal which goes right across the whole economy of this nation. That is vastly different from a proposition which deals with certain specialised areas in industry and government departments where certain conditions and features apply.
– 1 ask the Minister representing the Minister for Customs and Excise whether it is a fact that he has received a request from importers proposing a refund of tariff duty paid by them on certain imported vegetable oils. Did the Government agree on a previous occasion and under similar circumstances to a refund of duty which amounted to approximately $900,000? Will the Minister have a statement prepared which will clearly set out to the Senate why such a refund should be even considered by the Government? Have not importers concerned already recouped the cost of the duty through sales of products which include the oils in question?
– I listened to the question with some interest and heard the proposition developed by Senator Webster that in effect no duty refund ought to be allowed because the amount paid had been covered by the selling price in the process of making sales in the market place. That is an interesting view. I shall direct the honourable senator’s question to the responsible Minister. I cannot take it on myself to give him an answer now. 1 will obtain one for him as soon as I can.
35-HOUR WORKING WEEK
– I desire to ask the Leader of the Government in the Senate a question which follows on the question asked by Senator Bull. Is it not a fact that the official figures of the Bureau of Agricultural Economics indicate that rural wages account for approximately 20 to 21 per cent of the total cost structure? To decrease from 40 to 35 the number of hours worked each week would therefore mean a one-eighth or 2.6 per cent increase in costs. Has the Minister not ascertained that this increase would mean an increase of 2.53c a bushel in the price of wheat? In view of this is the indication that the 35-hour week would wreck the rural sector of the economy a fact of life?
With great respect to the honourable senator who asked the question I fee) bound to say that he has oversimplified ihe economics of the situation when he suggests that all problems are solved by working on a percentage of the wages of the rural sector of the economy. I am not aware of the basis of his figures so I do not challenge them but they have no regard to the flow-on which goes right through an economy. Simply to take one set of figures and work out a percentage from them and say that, ipso facto, they do not have an effect on the economy is a new form of economics with which 1 cannot compete at all.
– I ask the Minister representing the Minister for Primary Industry whether he will confirm that the greatest factor under Australian conditions militating against Australia’s ability to sell its primary products overseas is the cost in Australia of producing those products? Will the Minister also confirm that in the costs of production the largest single item is the labour component, not only in terms of those who work on the land but also those who work in producing the goods which the farmer has to buy? ff so. will the Minister consider making a statement detailing the injurious effects which ibo introduction of a 35-hour week would have upon Australia’s primary production?
– Over the years 1 think anyone connected with primary industry has pointed out the situation in which we are trying to prod’ ice goods for the export market in an economic climate such as we have in Australia and selling them on a market 12,000 miles away which is not interested in the local cost of production. The other point raised by the honourable senator was whether I would make a statement about the matter. I shall contact the Minister for Primary Industry in the hope that 1 can obtain some information to present to the Senate.
– My question is directed to you, Mr President. I refer to the incident which occurred in the Senate on 21st October last, out of which arose a motion of dissent which was to be dealt with today. I do not deal with the subject matter of that motion. Are you aware of the concern which has been felt by a number of senators about the circumstances which preceded and succeeded the moving of the motion of dissent? If you are aware of those circumstances, would you look into the matter so that some procedures might be adopted, if necessary, to avoid the occurrence of incidents which are not in the best interests of the Senate?
– I am aware of the the circumstances of the incident to which Senator Murphy refers. I assure him that I will confer with the Clerk and that I will look into the whole matter very soon.
– Can the Minister representing the Minister for Primary Industry advise the Senate of the number of awards operating in the rural industries that provide for a 40-hour week and the number of workers who would be affected by each award?
– To give the honourable senator the information that he is seeking, I would have to obtain information from the Minister for Primary Industry and perhaps from the Minister for Labour and National Service.
– I ask the Minister representing the Minister for Primary Industry whether his attention has been drawn to the words of an outstanding economist who stated:
Wages are the largest element in costs but by no means the only one. Profit margins, interest rates, taxes and charges all have a direct part in determining cost levels within the economy and, proportionately, can do as much to raise costs as wage movements. At times also external factors. …
– Order! The honourable senator is departing from the usual practice. He is giving too much information.
– I ask whether the Minister is aware of the statements made by a noted economist, whether he cares to express an opinion and whether he agrees or disagrees with this point of view.
– I have not seen the statement to which the honourable senator referred, but labour costs do play a very prominent part, particularly in the wool industry. I have some figures on wool handling costs, a study of which was done on stations in New South Wales. They are rather interesting. The total cost is given as a figure of 100 per cent. The cost of running the station, without any extra labour costs attached, is 67 per cent. Hie shearing costs work out at about 5.8 per cent. The shed costs, other than the shearing, work out at 6.3 per cent. Transport costs, road and rail, work out at 2.6 per cent. The cost of marketing the clip is 6.5 per cent. Overseas shipping costs are 11 per cent of the total cost.
– My question is directed to the Minister representing the Minister for Trade and Industry. The rules of the General Agreement on Tariffs and Trade - GATT- provide that, while it is legitimate for 2 or more countries to join in a customs union, no new barriers to trade should be raised through such a union. In view of the serious barriers which will be raised against the import of Australian agricultural products into the United Kingdom, which have been estimated to be to the extent of $200m, I ask: Does a threat not exist to the very basis of GATT as a consequence of the proposed action? What value can be placed by Australia on agreements such as GATT if they can be breached with such impunity?
– Last night on behalf of the Minister for Trade and Industry I put down a statement in this chamber in relation to the current circumstances of trade between the United Kingdom and Australia. I think that it would be very inappropriate for me to respond to the honourable senator’s question because it was only last night that the statement was put down. The statement has many implications. In fact, it indicated that some very senior officials of the Department of Trade and Industry are about to go to the United Kingdom for discussions on this subject. A motion is on the notice paper in relation to this matter. I understand Senator O’Byrne’s desire to seek information on this matter, but I am sure that he will appreciate that it would be very unwise of me to respond to his question until more responses are made by the Minister for Trade and Industry.
– I direct a question to the Minister representing the Treasurer. Is it a fact that the Commissioner of Taxation has ruled that a worker who is directed to transfer his employment temporarily to an income tax zone is denied the appropriate allowance unless the period of service is a minimum of 6 months? If so, will the Minister take up this matter with the Commissioner with a view to allowing a pro rata income tax allowance if the worker resides in the area for less than 6 months?
My understanding is that the situation is as the honourable senator has outlined it. In view of the implications of the question, which suggests that a pro rata provision should be provided, I think that the matter should be referred to the Treasurer for a proper reply and I will do that.
– My question is directed to the Minister for Civil Aviation. By way of brief preface I wish to say that a 25 per cent concession is given at the moment by domestic airline operators to students at universities, colleges of advanced education, theological colleges and some technical colleges, subject to certain conditions, but those students who attend teacher colleges, which in a number of instances are the only tertiary education facilities in an area, are excluded altogether. Will the Minister request the domestic airline operators to reconsider the application of the concession which is given to students so that students at. teacher colleges will receive it?
– This matter has been raised before in correspondence. I do not think that it has actually been brought specifically to my attention since I have been
Minister for Civil Aviation, but I can remember reading earlier files in which the matter has been brought up. It seems to me to be quite a fair and reasonable request. I will certainly take up the matter.
– My question to the Leader of the Government in the Senate follows a question asked earlier by Senator Greenwood of the Minister representing the Minister for Primary Industry as to the allegedly high component of labour cost in the costs of primary industry. Is it not a fact that the greater part of the expenses of persons who are seeking justice in the courts is the cost of barristers and solicitors? Does the Government intend to take any action on this matter or is it the Government’s opinion that it should only resist charges for labour which are made by members of industrial unions and not by members of professions which traditionally support the conservative parties?
– It seems to me that the first part of the honourable senator’s question has little or no relationship to the second part of it. If the honourable senator’s question is in fact intended as a barb between one legal man and another then I do not think it is appropriate for me to answer it.
– In addressing my question to the Minister representing the Minister for Trade and Industry I refer to recent increases, to a maximum of 10 per cent, in overseas freight rates and to recent statements by the Minister for Trade and Industry that the Trade Practices Act in its present form is not available as a means of taking action in respect of those increases, and that shippers would have to negotiate with the Conference lines to set a fair freight rate. I ask: In the background of those statements does the Government propose to amend the Trade Practices Act so that Australian producers for export will have available to them fair freight rates? If not, does the Government intend to take some other action to assist the Australian National Line in getting not only a fair share of the trade but also operating conditions under which it can carry cargoes to and from Australia at reasonable freight rates?
Certain aspects raised by the honourable senator would need to be answered by the Department of Shipping and Transport. The honourable senator will appreciate that in his basic question he is asking me to comment on policy and on the intentions of the Government in the field of policy. Therefore I am not in a position to answer those questions now. I am sure he appreciates that his question is in fact related to policy and the rules are that questions on policy are not answered at question time.
– 1 ask the Minister representing the Minister for Shipping and Transport whether the recent increases in the freight rates applying to cargoes carried between Australia and the United Kingdom are due to many factors, the main one being disruption on the waterfront, including strikes, and another being wage increases, both of which had great bearing upon the increase in freight rates.
– As the honourable senator has suggested, it is true that a great part of the problem has occurred through unrest on the waterfront. This is not directed at the Australian scene as much as it is at the scene in the United Kingdom, particularly at Tilbury. During almost the entire period that the Australian National Line was engaged in this trade during 1969- 70, facilities at Tilbury were not available to trans-ship containers to the various European ports. The costs incurred were enormous and were a major factor contributing to substantial losses. Honourable senators should appreciate that industrial unrest in the shipping scene overseas, as well as in Australia, affects Australia quite dramatically. We are a big trading nation and we have our goods carried by sea to a great extent. As a result of industrial troubles losses will inevitably be incurred. Unless the shipping concerns are to go out of business, freight rates will rise.
– I ask the Minister representing the Minister for Shipping and Transport: In view of the reply he has just given to Senator Young, will he study the report of the Senate Select Committee on the Container Method of Handling Cargoes, and particularly its recommendation that some governmental action should be taken to prevent disputes that are likely to arise? That recommendation was not adopted. Will he also study the reference to the possibility of increases in freights by the Conference lines for profit motives and not to meet labour costs?
– When the honourable senator uses the word ‘he’, I presume he is referring to me. In due course I will read again the passages of the report to which he has referred. The honourable senator will appreciate that the Minister responsible for shipping and transport is not in the Senate. He is in another place. I am quite sure that he and his Department have studied the report on container cargoes with great care and have done what they can to have adopted those recommendations in the report that it has been possible to implement. It is not to be assumed that reports made by a particular group of people will necessarily contain a total body of opinion which will be totally adopted. My experience has been that the Government is willing and ready to adopt suggestions that can be helpful.
– ls the Minister representing the Minister for Shipping and Transport aware of the fact that cement is transported by Australian and New Zealand Eastern Shipping Conference ships from Japan to New Guinea at a freight rate of $7. 14 per ton and that cement shipped from Australia to New Guinea is transported by the same lines of ships at a price of from $15 to $16 per ton? Further is he aware that the distance between Australia and New Guinea is a great deal less than the distance between Japan and New Guinea and that in any event Australia has an abiding interest in the development of New Guinea? ls the Minister able to say why, in air the circumstances, the freight rate for Australian exports of this commodity to New Guinea is twice that of the same product shipped from Japan to New Guinea?
– This question bears a remarkable similarity to one asked by the Leader of the Opposition in the other place. 1 think the best I can do for the honourable senator is to get a copy of the answer to that question.
– I would be grateful if the Minister representing the Minister for Shipping and Transport would tell me how many shipping companies form the Australian and New Zealand Eastern Shipping Conference referred to in the last question. I thank him for a full answer he obtained for me in relation to this matter. I know he would not expect me to agree with what it said, but it claimed that Australia, being a member of the Shipping Conference, was bound by the rates fixed by it. It would be interesting to know how many shipping lines comprise the Conference. If there are more than two I can understand why the Australian National Line is compelled at all times to increase its shipping rates.
– Yes, I shall be very pleased to do that. It is a logical question following upon the letter that we obtained for the honourable senator from the Minister for Shipping and Transport. I do not know how many companies are in the Conference; I would be glad to know myself. I shall find that out.
– Can the Leader of the Government in the Senate elaborate on recent remarks by the New South Wales Minister for Lands, Mr Lewis, about the transfer of 500 acres of Sydney Harbour foreshore land to . the New South Wales Government for parkland purposes? The Minister said that many of the terms and conditions remain to be thrashed out. Does this imply that the Commonwealth is seeking to charge current inflated land values rather than transfer this urban open space land at a minimum cost, or will it retain the land on a peppercorn rental basis so that New South Wales will have its parkland at a minimum cost?
Senator Sir KENNETH ANDERSONMy brief from the Prime Minister’s Department on this matter is as follows:
As is known, the Commonwealth wishes to acquire land at Holsworthy and Lucas Heights for ils own purposes and the New South Wales Government has requested the Commonwealth to vacate areas of land it now holds in the Sydney area. In particular, the State is interested in the land on the foreshores of Sydney Harbour held by the Commonwealth for defence and other purposes on which it proposes to establish a national park. I-
That is the Prime Minister - have had an extensive exchange of correspondence with Mr Askin on these matters. The Commonwealth has a sympathetic understanding of the State’s interest in the Sydney Harbour foreshore lands but at the same time our responsibilities for essential defence services cannot be ignored. I wrote to the Premier in July indicating that quite extensive areas could be made available to the State for purposes of parkland and public recreation. The Premier’s reply has only been received in my office this morning and from a first reading it does seem that the Commonwealth proposals are generally acceptable to the State. However, they have specified conditions in regard to the acceptance of some of the proposals and these will need to have closer study before the final basis for a settlement is agreed upon.
– Does the Minister for Civil Aviation recall a recent Senate debate on an excise Bill which increased the tax payable by users of aviation fuel? Does he also recall the associated publicity which suggested that the excise duty component of the cost of a gallon of fuel was of the order of 85 per cent? Can the Minister advise whether the news article which mentioned this percentage is correct?
– I wondered when this matter might rear its head again because when the debate took place I was interested in Senator Webster’s query and thought that I must check on it. I noted the following morning that the newspapers had commented on the figure of 85 per cent and I got the Department of Customs and Excise to conduct an inquiry for me. I have had the information for a little while now. The facts are that most of the purchasers of large quantities of aviation fuel negotiate contract prices, and therefore one cannot establish firmly and positively the details of those private contracts. However, there are recognised maximum prices within the oil industry for aviation fuels delivered into aircraft at mainland capital city airports. Aviation turbine kerosene costs 34.1c a gallon and the duty payable is 10.9c so the percentage is 32 per cent, not 85 per cent. Various piston aircraft fuels range between 40.8c and 44.4c a gallon and the duty is 12.57c, so the percentage in the lower case is 28 per cent and in the higher 31 per cent. In no way was the newspaper comment accurate. As Senator Webster has suggested, the reality is that duty is of the order of 30 per cent. I am grateful to him for having brought this matter out in debate and enabled me to supply the required information.
– I refer to the reply that the Minister representing the Minister for Shipping and Transport gave to Senator Young in relation to increased costs arising from the dispute at the Tilbury Docks in the United Kingdom. Is it a fact that despite the dispute which occurred the consortium finished that year with a profit of $40m?
-I am not a member of the consortium nor do I know its profits, but $40m is a fascinating sum. I am not aware whether it is accurate. How can I be? It is just interesting to hear it.
– I direct my question to the Minister representing the AttorneyGeneral. Is there any prospect of getting a reply to my question of 2 months ago, to which I referred about a week ago, concerning possible conflict between a section of the Australian Coastal Shipping Commission Act and section 92 of the Constitution?
– I am bound to say that I regret that the honourable senator has not yet had a reply to that question. I would have thought that it would have been readily available.I would be disposed to give him a reply on the spot but I shall direct his reminder to the Attorney-General and see whetherI can give the honourable senator an authoritative answer tomorrow.
– I refer the Minister representing the Minister for Immigration to an answerI. got yesterday to a question seeking the classifications of persons of nonEuropean stock granted entry into Australia. The answer contained a very comprehensive scale for which I thank the Minister. However, it surprised me greatly andI wondered whether the question had been misunderstood. It asked for the professions or occupations of the people who had been admitted. The answer was to the effect that the Department did not have this information. As this is such an important consideration in allowing those people to have permanent residence in Australia,I cannot believe thatthe Department does not have the information so I underline it to the Minister to see whether she can make another inquiry for me.
– It is correct that yesterday I gave the honourable senator an answer to a question on notice. The third part of his question asked for the categories of occupation and the nationality of the persons granted Australian citizenship during the past 10 years. That was referred to in the 2 earlier parts of the question. The Minister informed him that apart from the nationality breakdown which had been given in the very lengthy and detailed answer the information was not recorded in statistical form.I have noted the point the honourable senator has made and I will see whether I can get some information concerning it. It is obvious from the reply that the information is not recorded in statistical form but there may be some way in which I can get some picture of the situation for the honourable senator.
(Question No. 774)
asked the Minister for Air, upon notice:
– The answer to the honourable senator’s question is as follows:
As at early October 1970 the values are:
Phantom aircraft- $US6.493m (2)F1 1 1 aircraft- $US36.022m
SenatorKEEFFE asked the Minister representing the Minister-in-Charge of Aboriginal Affairs, upon notice:
Is a disability allowance of any kind payable to aborigines in the Northern Territory who suffer or have suffered from Hansen’s disease.
When a leprosy sufferer is being treated- in a leper hospital its usual to accept him as medically qualified as an invalid pensioner; i.e. permanently incapacitated from work to the extent of at least 85 per cent. Where, upon discharge from the hospital a pensioner is still medically qualified the pension would be continued whether the pensioner resided on an Aboriginal reserve or not.
If a pensioner is found to be no longer medically qualified the pension is continued for up to three months to permit the pensioner an opportunity to adjust to’ the altered circumstances and to find suitable work. So far as the Northern Territory is concerned it is probable that an Aboriginal sufferer discharged from hospital and ineligible for an invalid pension would go to a Mission or or settlement where, if a pension was not payable, he would qualify for a training allowance.
(Question No. 635)
asked the Minister representing the Treasurer, upon notice:
What was the total amount of taxation rebates given to rural taxpayers for each of the last three financial years.
Senator Sir KENNETH ANDERSONThe Treasurer has provided the following answer to the honourable senator’s question:
The principal means by which assistance is provided to primary producers through the income tax system are:
the averaging provisions, whereby tax payable may be reduced in a year when the taxable income exceeds the average of that year and the four preceding years (and, conversely where tax payable may be increased in a year where the average income exceeds the taxable income for that year);
those provisions which allow deductions in addition to the deductions authorised under the general provisions of the law; and
those which allow certain taxpayers to deduct the cost of items of plant over shorter periods than is the case for the general run of taxpayers.
While deductions in the last category do not allow any greater total deductions over the life of the plant and equipment than do the normal depreciation provisions, they result in a deferment of tax which involves a cost to revenue, and a benefit, namely the provision of interest-free finance, to the taxpayers concerned.
The estimated income tax revenue forgone in the years 1967-68 to 1969-70 as a result of averaging of incomes of primary producers and of deductions allowed to primary producers in respect of investment allowance, expenditure on capital improvements and special depreciation was as follows:
In addition the drought bonds scheme by which eligible pastoralists are enabled to reduce their taxable incomes in some years by the amount they subscribe to drought bonds, and increase them in later years by amounts of redemptions, results in a further reduction in revenue. By evening out fluctuations in taxable income, the scheme can enable them to make overall savings in tax. The estimated revenue forgone in 1969-70 as a result of the drought bonds scheme was $600,000. Rebates of pay-roll tax may also be available in respect of primary producers’ exports. However, no firm basis is available on which to base an estimate on the amounts of any pay-roll tax rebates allowed to primary producers.
(Question No. 682)
asked the Minister representing the Treasurer, upon notice:
– The Treasurer has provided the following answer to the honourable senator’s question:
(Question No. 733)
asked the Minister representing the Minister for the Interior, upon notice:
– The Minister for the Interior has provided the following answer to the honourable senator’s question:
(Question No. 734)
asked the Minister representing the Minister-in-Charge of Aboriginal Affairs, upon notice:
In the light of the overwhelming opinion of anthropologists and researchers that the provision of traditional land rights is necessary for economic and social independence for Aboriginal communities, why has the Minister chosen to ignor such expert opinion and denied land rights to the Aboriginal people of Australia.
– The Minister-in-Charge of Aboriginal Affairs has provided me wilh the following reply to the honourable senator’s question: 1 am fully aware of anthropological and sociological opinions expressed regarding the traditional ownership of land by Aborigines. However, the honourable senator will be aware that this question is the subject of proceedings in the Northern Territory Supreme Court, and the Commonwealth Government is paying most of the legal costs incurred by the Aboriginal claimants. While this matter is subjudice I do not feel it proper to express an opinion on the issue.
(Question No. 776)
asked the Minister representing the Treasurer, upon notice:
In view of the statement by the Minister that the Commonwealth Government will not contribute to drought relief in South Australia until the State Government has expended $1,500,000, and the fact (hat the total expenditure on drought relief by the South Australian Government is unlikely to exceed this figure, does this mean that the Commonwealth Government will give no financial assistance to the State for the serious loss which has occurred as a result of drought.
The Treasurer has provided the following answer to the honourable senator’s question:
As I have explained in answer to previous questions, the provision of drought relief is primarily the responsibility of State governments, which are in the best position to assess local conditions and the needs of individual primary producers. It follows that State governments are normally expected to meet the cost of drought relief measures from their own resources. However, where it is considered that the cost of drought relief would place an undue burden on a State’s finances, the Commonwealth is prepared to assist. Recently, Commonwealth assistance has been offered to both New South Wales and South Australia on the basis that the Stales concerned meet expenditure up to a certain amount from their own resources, with the Commonwealth meeting the full cost in excess of that amount. The decision to provide assistance on this basis reflected, in part, the uncertainty regarding seasonal prospects and the amount of drought relief that would be required. If expenditure by the South Australian Government on drought relief measures does not exceed $l.5m in 1970-71, the State would, under the terms of the Commonwealth offer, have to finance the whole qf such expenditure from ils own resources. However, if expenditure on drought relief were to reach the estimate of $6m made by the South Australian Premier at the time of his letter to the Prime Minister, the Commonwealth would, of course, reimburse the State for $4.5ro of that expenditure.
– On 23rd September 1970 Senator McClelland asked the following question without notice: ls it a fact that when the export of mutton to the United Slates was slopped in May of this year the reason given was that the disease condemnation standards were not being mct’.’ ls the Minister aware that since that time only 2 plants have been reinstated, neither of them in New South Wales, and that in order to regain an export licence for mutton the works must be reinspected for general hygiene purposes? Kas the Minister seen a report that at one of the works an American inspector ordered what were referred to as girlie pictures to be removed from the office wall because he regarded them as being too lewd, and that a chipped sugar bowl in a lunch room at one of the plants brought a complaint? Because so many towns in the west of New South Wales are practically dependent for their economic survival on being able to export mutton to the United States, will the Minister take steps to ensure that the inspections carried out in Australia by the 5 American inspectors are conducted fairly and not capriciously, and that the inspectors do not exceed their authority in regard to the overall general standard of hygiene?
At that time I informed Senator McClelland that two meatworks had been reinstated recently, one in Brisbane and one in Shepparton in Victoria, and that I would direct the remainder of the question to the Minister for Primary Industry. I have now received advice from the Minister in the following manner:
Senator Sir KENNETH ANDERSONOn 19th October Senator Sim asked the following question without notice: 1 refer to a report from London by a Mr Bernard Colling that the Rhodesian economy is enjoying a boom and that trading nations from Japan to Russia are leaping in to enjoy the fruits of the market. Will the Minister have examined reports that Russia, Red China and other Iron Curtain countries’ such as Czechoslovakia are trading freely with Rhodesia in a wide range of goods? If the reports are true, will the Government make a statement reporting on the situation?
I said that I would set about getting the facts. The Minister for External Affairs has provided me with the following answer:
The Security Council Resolution No. 2S3 of 29th May, 1968, which imposed sanctions on Rhodesia, also established a committee to enquire into reported evasions of the sanctions. Information about alleged infringements of sanctions by Eastern European countries has been submitted to that committee which has addressed enquiries to the governments’ concerned. These enquiries are still continuing.
As far as Communist China is concerned, Pravda’ on 10 June reported that Communist China has been buying a considerable quantity of chrome in Rhodesia for use in the aircraft industry and other branches of the armament industry.
– For the information of honourable senators, I present the annual report of the Northern Territory for the year ended 30th June 1970.
– Pursuant to section 23 of the Australian War Memorial Act 1962-1966 I present the annual report of the Board of Trustees of the Australian War Memorial for the year ended 30th June 1970, together with financial statements and the report of the AuditorGeneral on those statements.
– Pursuant to section 10 of the Royal Australian Air Force Veterans’ Residences Act 1953- 1965 I present the annual report of the Royal Australian Air Force Veterans’ Residences Trust for the year ended 30th June 1969, together with financial statements and the Auditor-General’s report on those statements.
– On behalf of the Public Accounts Committee I present the One Hundred and Twenty-third Report. With the concurrence of honourable senators, I incorporate in Hansard a statement on the report.
As honourable senators will be aware, your Committee has, in recent years, conducted combined inquiries relating to expenditure from the Advance to the Treasurer and expenditure from the Consolidated Revenue Fund but has tabled separate reports on both aspects of these inquiries. The one hundred and twentythird report relates specifically to evidence taken by your Committee in connection with expenditure from the Advance to the Treasurer in 1969-70. The evidence taken in this inquiry shows cases where, in the opinion of your Committee, departments have been justified in drawing on the Advance to the Treasurer to finance unforeseen expenditure late in the financial year. However, the evidence also shows other cases where clerical errors, lack of adequate communication within the administration and misunderstandings between some departments and their clients have affected expenditure adversely. These factors, together with requests made prematurely,- in some cases, for funds from the Advance to the Treasurer, have resulted in significant proportions of the funds sought from the Advance remaining unspent. The detection by your Committee of these cases has been assisted substantially by the proforma developed in 1966 for the guidance of departments in the preparation of evidence.
While defects discovered in administrative arrangements have been drawn to the attention of the departments concerned, throughout the report there are some matters to which specific attention should be drawn. As the report shows, there is a need for the basis of practices connected with letters of credit associated with overseas purchases to be examined by the Department of. the Treasury and by other departments and authorities concerned. On several occasions in recent years your Committee has encountered the problems, including staffing losses, that confront departments when transferring their administrations to Canberra. Your Committee believes that a clear responsibility rests with the permanent heads of such departments to recognise the problems that can arise and to ensure that they are minimised in the interests of efficient administration. The evidence shows that departments that provide computer services for other departments and statutory authorities should ensure that adequate training is provided for the staffs of such departments and authorities in the interpretation of output data from computers. Other evidence tendered in our inquiry shows a need for departments to act in such a manner that their image and that of the Public Service generally is protected from public criticism.
Finally your Committee would draw attention to factually conflicting information tendered by a department in its submission and by its witness in evidence. Your Committee has taken this matter up direct with the department concerned. On the broader issue of the general quality of evidence submitted during inquiries, and to which reference has been made in previous reports, your Committee notes with satisfaction that on 16th October the Secretary to the Treasury issued a circular to all permanent heads indicating the need for witnesses to be properly briefed and for evidence tendered to be of the highest quality.
I commend the report to honourable senators.
Ordered that the report be printed.
– I seek leave to make a short statement in connection with Business of the Senate, Notice of Motion No. 3, standing on the notice paper in my name.
– Is leave granted? There being no objection, leave is granted.
– The Regulations and Ordinances Committee has deliberated on the matter that is the subject of this notice of motion. As a matter of fact, we have had 3 sets of discussions and have gone into it very closely, We received a letter from the Minister concerned - the Minister for Labour and National Service (Mr Snedden). lt was a letter of approximately 5 pages, which indicated that he had gone into the matter very thoroughly and considered the matter of great importance us far as the Committee and he himself were concerned.
After the Committee had looked at the matter as closely as it could, a majority of the Committee decided that they would not pursue the motion to disallow this regulation. As you know, Mr President, the Committee has several considerations which arc placed before it and to which it must have regard in dealing with regulations and ordinances. The one at which the Committee was looking in this case was that concerning the amount of discretion given to the Minister and thereby the rights and liberties of the individuals concerned. The Minister pointed out in his letter that, whilst a person may be brought within the precincts of the court, there is nothing to compel him to make any statement to the court. The other point so far as the rights and liberties of people are concerned is that there is nothing to stop any person from going before -the court in this connection, even though he has not been brought before the court by the Minister. Therefore, the majority of the Committee felt that it would not be right to pursue this matter further.
As Chairman of the Committee I take the view that the Committee must act on safe ground so far as its rights are concerned. Over a period of years the Committee has built a reputation within the Senate of working on the highest pariamentary principles. Therefore, in common with members of the Committee generally, I do not feel that action should be taken at any time which would undermine the standing and authority of the Committee. Because of the feeling on this matter, which has been thoroughly discussed during 4 meetings, the majority decided that no further action would be taken. In view of the attitude which I have expressed I do not now wish to proceed with Business of the Senate, Notice of Motion No. 3, standing in my name, but I understand that Senator Cavanagh wishes to have it transferred into his name.
– In accordance with what was said by Senator Wood,I ask for leave of the Senate for Business of the Senate, Notice of Motion No. 3, standing in the name of Senator Wood, to be a notice of motion in my name.
– Is leave granted? There being no objection, leave is granted.
I move this motion in the context of a situation where yesterday the Senate debated an urgency motion for 3 hours and dealt with other business, as a result of which, apart from introducing Bills, we passed one Bill only. Without wanting to make a great debate on the matter, the operation of Government business for the remainder of this session demands that Government business should take precedence over general business after 8 o’clock tonight.
– The Opposition will not accept this proposition. We gave away our opportunity to deal with general business in the session before last in order to facilitate the progress of business before the Senate. Any problems that are going to occur here result from the Government’s failure.
-I am not blaming the Leader of the Government in the Senate (Senator Sir Kenneth Anderson), but it is the result of the Government’s failure to have business brought into the Senate with expedition. I do not think there has been any hold-up in this place. No-one is suggesting that there is any great problem arising today or that there has been any great problem over the last few days in dealing with business that has come before us. The problem is that business has not been coming here. Everybody knows that to be so. We should not encourage the proceedings of this place being disturbed and put out of order merely to meet the situation arising from the inefficiency of the Government in the conduct of its legislative business. I repeat that I do not blame the Leader of the Government for the situation. He does not control the time at which business comes here. If it is intended to complete the business within a certain time consideration should be given to the fact that it has to pass through the Senate and that certain procedures are involved. It seems to me that very little consideration has been given to that fact. We should not start chopping out all the provisions that we have for dealing with important matters.
The first important matter listed under general business is a proposal, which has been on the notice paper for a long time, that Senator Byrne shall move for a select committee to inquiry into Australian defence.If that proposal is considered seriously it ought to have been proceeded with. There have been plenty of opportunities to do so.I merely make the observation that there are serious proposals to be dealt with, whether or not they are agreed to. We can make reasonable arrangements so that those matters can be brought to an early decision. They ought to be decided and not left on the notice paper undecided. I suggest that the Senate ought not to put aside the matters listed under General Business.
– The motion moved by the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) was inevitable,to my mind, having regard to the circumstances surrounding the business of the Senate. We all are conscious of the fact that a Senate election is to be held on 21st November. We have a good deal of business to transact before then. As a result of a request made by Senator Murphy that there should be some programming of the time available to us for the disposal of this business, the Whips of the respective parties conferred and drew up a time table. It was in existence for about 24 hours before it was dislocated and disrupted by an urgency motion which took up 3 hours yesterday.
How on earth are we to dispose of the business of the Senate in an orderly fashion, as has always been emphasised by Senator Murphy, if it is to be interrupted by urgency motions that do little or no good except to gain some political propaganda. In the circumstances, I think the Leader of the Opposition has no alternative but to agree to go ahead with Government business in preference to non-Government business. Personally I feel that if we have not disposed of the business of the Senate by Friday night the Senate should adjourn until after the election. It is all right for candidates who belong to the two major parties; they cannot lose. But other people have the same rights as they have. Whilst it is possible - sometimes it is overdone - for members of the major parties to obtain pairs, members of the Australian Democratic Labor Party are unable to pair with anybody.
– How about Senator Turnbull?
– We do not think it is funny. It is very unjust. 1 know there would be a lot of complaints if members of the Labor Party were in the same situation.
– We are happy to pair with the Government.
– Of course you are. J make the observation that I am the Leader of the second Opposition party in this place. In the light of the present circumstances I. do not think we have any alternative but to proceed with urgent Government business and dispose of it. If we have not completed it by Friday night, I submit that the Senate should adjourn until after the election.
– I would like to clear up a matter raised by the Leader of the Australian Democratic Labor Party (Senator Gair). He suggested that there had been agreement between the Whips in relation to a timetable for the business of the Senate for the remainder of the session. What happened was that the Whips got together to discuss the suggested programme for the coming days in view of the amount of business which was on the business paper. No formal agreement was made. We thought that if we had some conception of the number of honourable senators who wished to speak that would give us an idea of whether it would be possible to get through the business. We thought that under normal circumstances, bearing in mind the time it would take for so many honourable senators to speak, we could reach a certain stage by last night. We also anticipated that another series of items, could be completed by Friday.
There were other motions which had to be disposed of by fitting them in as required during this session so no arrangement or agreement was made as far as the timetable was concerned. We just considered an assessment and an appreciation of the business that had to be put through. It is up to the Government to make up its mind fairly soon whether the Senate will sit next week. As I said, it is impossible to handle the volume of business which is before the Senate in the time available this week. I think the Senate should agree that we finish at the normal time on Friday, come back again on Monday and sit until the business is completed. This would be the reasonable way.
– What about the suggestion that we resume after the election?
– I agree that that could be done.
– I am rather amazed that the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) has moved this resolution at this time. Earlier this week he laid down certain times of sitting. When the honourable senator moved that we sit from 10 o’clock in the morning until 11 o’clock at night he never at any time intimated that he would come along the next day or the day after and move that certain rights be taken away from honourable senators as he has done now. He knows, as does everyone else, that it is impractical to get through the business of the Senate by Friday night. Whether we meet next week or whether we follow Senator Gair’s suggestion and meet after the Senate election lies with the Government which has the right to submit to the Senate the times of meeting. I do not believe we should deny any honourable senator the right to discuss General Business. If anyone wants to have a discussion on the defence of this country surely it would be Senator Byrne in whose name a motion stands as the first business for tonight. I think we all would agree that that is a most important question. I think we would all agree that we will be able to nail certain things when that important debate is before the Senate. It is amazing to mc that anyone should agree to give away an important debate such as that.
But I. revert to what I said: When the Leader of the Government fixed the hours of meeting of the Senate for this week which were agreed upon by the majority of honourable senators he should have at least suggested that Government Business would take precedence over General Business on Thursday night from 8 o’clock. I do not think this is the way in which the House should have been advised of the position. If it were an oversight possibly there may be some excuse for what he is now doing. Now there seems to be this mad urge to get rid of the affairs of the Parliament as quickly as we can and not to adopt either of the alternatives that have been suggested. If we adopt what Senator Gair suggested there will be no reason to alter the arrangements for tomorrow night at all. If on the other hand the Government wants to sit next week, as 1 intimated earlier this week that it should, again it has no right to take any of our privileges away from us. The Leader of the Government said that this move was brought about because Senator Murphy raised a matter of urgency yesterday. If any honourable senator can obtain the support of 3 or 4 senators, according to the Standing Orders, he can at any time hand to the President of the Senate notice of the matter about which he wants to move an urgency motion. The only stipulation is that it has to be handed- to the President before 12 noon.
– We are not able to do that. Again we are handicapped.
– That is the unfortunate position in which the Democratic Labor Party finds itself.
– The honourable senator is just speaking for propaganda purposes.
– I would not say that it was propaganda. I do not think I would be hard on Senator Gair if I said that he would use propaganda if he had the opportunity. 1 support strongly the retention of our rights on this occasion. If it were necessary for legislation to be rushed through, we should have been told. This is not a dream that has just come to the Leader of the Government at this moment. Irrespective of the decision on this matter. I think we should at least follow it up by deciding immediately whether we will meet after the Senate election. I say to Senator Gair that the Government now wants to take away certain of our rights, lt fixed 21st November as the date of the election, lt could easily have fixed 5th December or 1. 2th December. In past years elections have been held on those dates.
– The election could be held next April.
– The election could be held next April, as the honourable senator said. The writs do not have to be returned until the end of next June, lt is.no excuse to say that, because an election has been fixed for a certain date, our rights must be taken away. The people who are now wanting to take away our rights -were those who fixed the date of the election as 21st November. We still have plenty of time to retain all the things that we want to retain and to discuss on Thursday nights the matters that honourable senators have placed on the notice paper for discussion at that time. Therefore I believe that the Government at least ought to give some consideration to allowing the Senate to carry on in its norma) way. The Government should take a stand on whether it wants to sit after 2 1 st November or next week. I would have no objection to sitting after 21st November.
– This motion will have the effect of standing over a matter in my name, so that the concession which has to be made to the precedence of Government Business is ;i concession made by myself on behalf of the Democratic Labor Party. The General Business sheet contains a series of private members’ matters. One matter dealt with the setting up of a royal commission to inquire into all aspects of primary industry. Another was in relation to the setting up of a joint select committee to investigate Commonwealth and State financial relations. The third matter dealt with defence. The first 2 have been debated. One has been resolved. The other stands as an Order of the Day on the General Business sheet for debate. At the time the third matter was listed it had a particular urgency because of the absence of any specified and articulated Government defence programme. Shortly after that the Minister for Defence (Mr Malcolm Fraser) made a most comprehensive defence statement to the Parliament. The statement of the Minister for Defence answered a great number of the queries which may have been raised during the course of such a debate. Although his statement would not warrant the taking of my notice of motion off the notice paper, its immediate sense of urgency may have been eroded.
Senator Murphy has asked why 1 have not taken my notice of motion off the notice paper. Discussions have been held as to whether it should be superseded by other notices of motion standing in the names of members of the Australian Labor Party. 1 do not think that I am trespassing on any confidential understanding between Senator Murphy and myself when I say that we have discussed the urgency of my notice of motion. Actually it was superseded last week. It will be. recalled that Senator Murphy put forward a proposition for the reference of a matter to the Standing Committee on Primary and Secondary Industry and Trade for inquiry, to which the Australian Democratic Labor Party moved an amendment that it be put aside whilst an Order of the Day standing in the name of Senator McManus was discussed. Our proposal received the full support of the Senate, including the Opposition. In other words, the Opposition was a party to this notice of motion being superseded in favour of one seeking a royal commission inquiry into primary industry. It seems to me that it was common consent then that as a matter of priority this matter had lost some of the element of its urgency in view of the statement by the Minister for Defence.
The question of consideration of Government business now assumes very considerable urgency, particularly consideration of the Australian Wool Commission Bill, which will involve many hours of debate by the Senate. In those circumstances, it appears to me that it is a proper course for me to follow to surrender at this stage, whilst still leaving it on the notice paper, the right to immediate discussion of the notice of motion standing in my name in favour of the discussion of the very urgent legislation which has been and will be presented to the Senate by the Government. Honourable senators will appreciate just how urgent some of these matters are. A number of technical propositions have to be considered, including the application of Commonwealth law within the States as well as the Territories. This is a matter of extreme urgency which involves the rights of the community, including the rights of workers claiming workers’ compensation. These rights will be denied in the absence of the passage of this highly technical legislation. In the circumstances, I think there is considerable merit in bypassing my notice of motion at this stage, whilst allowing an opportunity for it to be discussed at a future date, in order to permit the important legislation which is before the Senate to be discussed.
– I wish to say a few words on this matter because I think the most important question has been forgotten. The General Business debate is the one occasion on which back bench members of the Senate have the right to put forward propositions to the Senate for its consideration. It gives a back bench member of the Senate an opportunity to initiate discussion on a subject of interest to him. Whatever else may be sacrificed in an endeavour to get away from this place, the rights of individual senators should not be sacrificed. This right should not be taken away from us.
– The honourable senator did not do too bad on the first reading of a money Bill last night.
– I had a right to speak on the first reading of a money Bill last night and I exercised it. I would have objected if an attempt had been made to take away that right from me. I know that I would have had the support of the Leader of the Government in the Senate (Senator Sir Kenneth Anderson), who believes in upholding the rights of honourable senators. I have an interest in certain items on the notice paper under General Business. Most of them appear on the notice paper in the name of the Leader of the Opposition (Senator Murphy), who, as a result of a decision of the Australian Labor Party, has given notice of matters which are of interest to members of the Labor Party. The notice of motion standing in the name of Senator Devitt is an example of the interest of members of my Party in certain subjects. It is not a question of Senator Byrne surrendering a right which he has; it is also a question of Senator Byrne surrendering the opportunity which Senator Devitt will have to discuss his notice of motion.
– Senator Byrne offered to stand by and let it go on.
– Let what go on?
– The other item.
– Last week?
– No, not last week.
– That may be so, if Senator Devitt is prepared to do that now. But Senator Byrne is seeking to remove from honourable senators the opportunity to discuss any other item of General Business and to take away the rights of honourable senators who are not members of the Government Parties. We should preserve our precious right to discuss General Business. It is even more important on this occasion because of the vital right that the Government is seeking to take away from back benchers in the Senate. There are 1 1 items of General Business. Item 1 1 is the following notice of motion:
That a Joint Select Committee be appointed to inquire into and report upon -
Whether the present laws and the practices presently observed by the Government of the Northern Territory are in the best interests of the people of the Territory and of Australia.
Obviously in the opinion ofSenator Murphy or his Party, or both, this is a very important item requiring immediate attention. At our present rate of dealing with items of General Business item11 will not be reached this session or next session. Possibly we will not be able to deal with it until August of next year although some members of this Parliament believe that it is an urgent matter. That is not right. We should carry on and try to clean up all items of General Business. We should not give away our right to discuss General Business.
Question put -
That Government business take precedence over general business after 8 o’clock this evening.
The Senate divided (The President - Senator Sir Alister McMullin)
Question so resolved in the affirmative.
– While we are dealing with the placing of business it might be convenient to deal with Order of the Day No. 1 . Mr President, in view of the answer you gave to a questionI asked at question time this morning, and because it is thought that the way in which this matter is presented does not really raise the main questions which were in issue, I move:
Question resolved in the affirmative.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator DrakeBrockman) read a first time.
– I move:
The object of this Bill is to establish a statutory body to be known as the Australian Wool Commision, empowered to operate a flexible reserve price scheme for wool sold at auction and to perform a number. of other functions relating to the whole clip aimed at improving the marketing of Australian wool. The idea of setting up a statutory wool marketing authority originated with the wool growing industry itself. As a result of a severe decline in wool prices during the last 18 months, strong advocacy arose among wool growers in Australia for a body which would strengthen the position of sellers and reduce the irrational fluctuations which occur in wool prices. The proposal for such a body was supported at mass meetings of wool growers throughout Australia. The two federal wool grower organisations - the Australian Woolgrowers and Graziers Council and the Australian Wool and Meat Producers Federation - resolves to press for such a body, as did the national body of the wool growers, the Australian Wool Industry Conference.
At the request of the Conference, a special advisory committee of the Austraiian Wool Board prepared an outline plan suggesting the principles on which a statutory wool marketing authority could be estab lished. The special advisory committee of the Wool Board is a body representative of all sections of the wool industry including wool selling brokers, wool buyers and wool textile manufacturers. The advisory committee recommended that a statutory body be set up and operate along the lines proposed in its report and this recommendation was adopted in principle by the Wool Board, the two federal wool grower organisations and the Wool Industry Conference. The report and recommendations of the advisory committee of the Wool Board were presented to the Government by representatives of the industry in July of this year. The. Government decided that it would be desirable to have an independent assessment made of the proposal by a highly qualified person who could also fill in the details of the broad principles recommended by the. advisory committee. To this end, I arranged for Sir John Crawford, Vice.Chancellor of the Australian National University, to undertake the task. After considering Sir John Crawford’s comprehensive report the Government put to the industry the terms on which it would be prepared to set up a statutory wool marketing authority. These were accepted early this month by the two federal wool grower organisations and by the Wool Industry Conference which voted overwhelmingly for the implementation of the scheme. This, then, is the background to the Bill which we are about to consider.
The need for establishing a statutory wool marketing authority with powers relating to the whole clip was argued in some detail in Sir John Crawford’s report which has been made public. Wool marketing must be considered in the wider sense of the . word which includes not only the method employed in the physical selling of wool but also embraces many other aspects such as the preparation and handling of wool for sale, its transport and the use of scientific and technological aids to increase efficiency in the marketing process. Even though the free auction system has been regarded as an efficient means of transferring wool from the producer to the user there is an urgent need for strengthening the position of sellers - that is wool growers - by eliminating the serious deficiencies which have developed in the auction system. These deficiencies have developed by its failure to keep pace with the changes which have taken place and will continue to occur in world commerce and business organisation.
In particular some of the deficiencies which call for attention are:
Irrespective of what type of system is used for selling wool it is of paramount importance to ensure that the most modern and advanced techniques are applied to make that system as efficient as possible. As matters stand now, where the control of auction selling is decided upon jointly by wool growers, selling brokers and buyers there are obvious difficulties in obtaining a consensus of the interests concerned in order to obtain the ready application of new techniques. An example of the innovations needed is the development of commercially acceptable sampling and testing methods to enable the application of objective measurement of wool’s characteristics prior to sale. It does not need much imagination to visualise the savings, par ticularly in handling costs, which could accrue from the sale of wool by sample. Also, as I mentioned previously, errors which occur in the appraisal of wool by subjective methods are an important factor contributing to instability in wool auction prices, lt follows, therefore, that pre-sale objective measurement of wool would be an important aid in this regard. I might mention here that the Government attaches great importance to this aspect and as announced in the last Budget it is providing about $Hm for the development of techniques for presale objective measurement and for trials to prove their commercial applicability.
The auction system in itself cannot be held responsible for the depressed state of the wool market. This is the function of the relative strength of supply and demand. On the other hand, the introduction of a flexible reserve price scheme can help to reduce the instability of auction prices, prevent wool from being sold at sacrificial prices due to purely temporary slackening of competition and so avoid considerable losses to individual growers. Of equal importance is the confidence which a flexible reserve price system could engender in the market as a whole, particularly in the circumstances we are witnessing today. The psychological factors which operate in such circumstances lead buyers to hold off in bidding for fear that their competitors will obtain wool at a lower price later. In this way the decline in prices feeds upon itself. In situations of this nature there is a great need for a strong holder of wool who is able to exercise a restraining influence against these temporary depressive factors. In such a manner a measure of badly needed confidence can be restored to the. market. For a body to perform this role it mast have the necessary powers and standing and be backed with adequate financial resources.
Similarly there is a pressing need lor a body to pursue a . positive programme of cutting the high costs associated with the handling, transport and marketing of wool. I have already referred to the advantages which can come from the pre-sale objective measurement of wool. Another is the establishment, where appropriate, of integrated wool selling complexes. Because of the many interests involved, a strong coordinating body is required to obtain early and tangible results in these and other fields. I shall now turn to outlining the main provisions of the Bill.
The composition of the Australian Wool Commission is dealt with in Part II of the Bill. If is proposed that the Commission should consist of 7 members comprising a Chairman, 2 members to represent Australian wool growers, a Commonwealth Government representative who would bs drawn from the Public Service, and 3 other members. The 3 other members would bs persons with special qualifications. They would be required to have experience in the fields of marketing of wool or wool products; in the processing of wool or the manufacture of wool products; or in commerce, finance or economics. All members, including the Chairman, would be appointed by the Minister for Primary Industry. The Chairman would be a full time member appointed for a period of 5 years. All other members would be part time and would be appointed for a period of 3 years.
The Chairman would be appointed by the Minister after consultation with the Australian Wool Board. The 2 wool grower representatives would be appointed after consultation with the Australian Wool Industry Conference. The 3 members with special qualifications would be appointed after consultation with the Wool Board. Provision is made in the Bill for the appointment of an interim Chairman pending the appointment of the full time Chaiman. The main reason for this provision is to facilitate the early inauguration of the Commission as it may take some time to secure a person suitable and willing to serve as a full time Chairman. Provision is also made in the Bill for the appointment by the Minister of a Deputy Chairman from amongst the members of the Commission.
The Government gave careful consideration to the composition of the Commission and concluded that in the interests of efficiency it was necessary to keep the membership as small as possible, consistent with the need to obtain an adequate range of skills relevant to the work of the Commission. In view of the nature of the functions pf the Commission, it is considered that the main emphasis should be placed on commercial and technical skills. I am sure that it will be agreed that every endeavour must be made to secure for the Commission men of the highest expertise and ability. The Government recognises the importance of maintaining a close liaison between the Commission and the Australian Wool Board because of the relationship between the functions of the 2 bodies. For this reason, the Bill provides that the Chairman of the Commission should automatically become a member of the Wool Board.
The functions and powers of the Commission are dealt with in Part III of the Bill. The principal function of the Commission is to operate a flexible reserve price scheme in respect of wool offered for sals at auction. I should like to emphasise that the reserve price scheme operated by the Commission would be on a flexible basis and not one with reserve prices fixed for a whole season. Under the scheme, reserve prices for the various types of wool offered at auction would be determined daily, or at less frequent intervals. Reserve prices would be determined having regard to the most recent prices bid by commercial buyers at auction and after taking into account all market intelligence available to it. If the bidding on any lot did not reach the Commission’s reserve price, the Commission would be prepared to purchase ths wool at that price. Wool so purchased by the Commission would be re-offered at auction or otherwise disposed of by the Commission. The grower would retain his right to place his own reserve price on his wool, except in the case of wool included in the price averaging plan or voluntarily pooled.
The purpose of the flexible reserve price scheme would not be to defy or force the market but to test it with the objective of securing the best price obtainable at the time and of minimising the losses associated with the growing instabilities in the auction system. The operation of the scheme in this way should mean a significant reduction in sales of wool at undervalued prices, in relation to prevailing rates, and the prevention of sales of individual lots when bidding on those lots has ceased to be competitive, that is, preventing the occurrence of ‘potholes’ in the course of auction sales. The Government decided that no quantitative or financial limits should be placed on the amount of wool which could be purchased and held by the Commission, as such a limitation could adversely affect the operations of the Commission. For example, to declare and publicise a fixed limit to the level of stocks which the Commission would be permitted to hold could lead to embarrassing pressure on the Commission as stocks approached or were thought by buyers to be approaching the fixed limit.
On the other hand the Government, because of its financial commitments under the scheme - to which I will refer later - must be assured that the Commission pursues a sound policy in its wool market operations. To this end the following provisions are included in the Bill in respect of the reserve price and re-selling policies of the Commission. A government representative is to be on the Commission; the Government is to have the right to appoint the Chairman and the Deputy Chairman of the Commission; the Commission is to report fortnightly to the Minister for Primary Industry and the Treasurer on its reserve prices, on wool purchased and held by it, as well as sales of wool made and proposed offerings; the Government is to have the right to issue directions to the Commission on its reserve price and re-selling operations when this is considered necessary. Steps would, however, be taken to provide the Commission with guidelines in respect of its reserve price and re-selling operations so so that the provision for directions need be invoked only as a last resort.
To assist it in the operation of its reserve price scheme, the Commission is empowered to establish and operate a market intelligence unit. Since the flexible reserve price scheme will not involve long range price forecasting, this unit will be primarily concerned with the examination of short term developments which affect wool prices. The Bill provides for the Commission to take over the functions of the Australian Wool Marketing Corporation Pty Ltd. These functions include the formulation of standards of clip preparation for wool sold at auction or otherwise and the making of arrangements to secure their observance; the elimination of small lots (except specialty wools) from sale at auction to the extent desirable; the operation of a price averaging plan for wool from small lots; the payment of advances to growers whose wool is included in the price averaging plan; the operation of the Wool Statistical Service; and the operation of a scheme for the voluntary registration of wool classers.
The Commission is to be given the following additional functions and powers under the Bill:
To operate, when judged appropriate by the Commission, a voluntary pool for wool other than that in small lots (that is, for wool in lots exceeding 3 bales) and pay advances to owners of such wool:
To formulate the terms and conditions governing the sale of wool at auction and make arrangements for their adoption:
To make arrangements concerning wool auction sale rosters and offerings and to pay advances to growers the sale of whose wool has been delayed because of the arrangements made by the Commission. Provision is made in the Bill that the Commission in exercising this function will not direct wool from one selling centre to another except within such limits, or in such circumstances, as are approved by the State Government concerned:
To have power to sell wool outside the auction system or have wool processed before sale in cases where such wool cannot be sold advantageously at auction. This provision means that the Commission will have power to dispose of any wool purchased by it, or entrusted to it, in any way the Commission deems fit. The Commission is empowered to purchase wool in two ways - through the operation of its flexible reserve price scheme after the wool had been offered at auction or, with the consent of the grower, before the wool is offered at auction in cases where it is considered that the wool cannot advantageously be sold at auction. In the latter case, the Commission would pay the grower a price equivalent to its most recent reserve price for the particular type of wool or such higher price as the Commission may determine:
To encourage the progressive adoption of proven and practical technological aids to more efficient wool marketing. Examples of the aids envisaged are the pre-sale objective measurement of wool and, in co-operation with the Australian Wool Board, the establishment of integrated wool selling com.plexes
To register firms at present operating outside the auction system which purchase wool direct from growers and sell it to local and overseas users, and obtain from these firms information on matters such as the type, yield and price of wool handled by them. The precise nature of the information to be supplied would be subject to the approval of the Minister for Primary Industry. The information provided by the individual firms will be treated by the Commission as strictly confidential. The reason for obtaining this information is to enable the Commission to keep the private buying and selling of wool under review and assess its effects on price formation in the auction system:
To make recommendations to the Government for suitable action to be taken if and when it can be clearly demonstrated that private buying and selling is having detrimental effects on wool marketing generally:
With the approval of the Minister for Primary Industry, to participate in negotiations concerning charges associated with the marketing of wool, including freight rates:
To co-operate with authorities and organisations in other countries in measures aimed at more efficient marketing of wool. An important matter envisaged under this function is to consult with the New Zealand and South African Wool Commissions in the operation of their flexible reserve price schemes:
To co-operate with the Australian Wool Board and other authorities and organisations in regard to wool promotion and research, including inquiries into methods of marketing wool:
To discharge such other functions conducive to the object of the Bill including functions conferred by a State Act, as the Minister approves.
I have had discussions with the State Ministers for Agriculture, through the Australian Agricultural Council, and they have expressed unanimous support in principle for the establishment of the Australian Wool Commission. I have raised with them some matters which may ultimately require supportng State legislation, such as giving compulsive power to the Commission to set the terms and conditions governing the sale of wool at auction; the control, if it should become necessary, of the private buying and selling of wool outside the auction system; and the enforcement of standards of clip preparation for wool sold outside the auction system for use within a State. The State Ministers have agreed to consider these matters and provision has been made in the Bill for possible State legislation.
The Australian Wool Industry Conference has asked for an assurance that the Commission should not have the power to establish quotas on wool production in Australia. Such a power has never been envisaged for the Commission and, in any event, the Commonwealth Government could not, for Constitutional reasons, confer it on the Commission without the approval of the States. The Commission will, of course, require adequate and reliable financial backing to carry out its functions. The Commission would need working capital for its activities involving the purchasing of wool and advances to wool growers as well as finance to meet its operating costs. lt has been estimated that the Commission might require in the region of $115m by way of working capital for a full year - to operate flexible reserve prices, make advances to growers, etc. - and about $ 18.7m to meet its likely annual operating costs. I would like to mention that the assumptions used in making the estimates were on the liberal side and in practice the financial requirements could be smaller. Moreover, the estimates include the finance which is already required for the operations of the Wool Marketing Corporation, mainly for the elimination of small lots and the price averaging plan. Details of the estimated working capital requirements and of operating costs are set out in paragraphs 44 to 47 of Sir John Crawford’s report which has been distributed to members of both chambers of Parliament and released to the public. However, the relevant extract from the report is available to those who require it.
It will be noted from the report that after allowing for the financial requirements of the present Wool Marketing Corporation the net additional working capital required is about $66m and the net additional operating costs are about $6im per annum.
The total operating costs of $18. 7m would represent S3. 12 per bale or 1.04c per lb. The net additional operating costs of S6.33m would be $1.06 per bale or 0.35c per lb. It should be mentioned that the estimate for operating costs include a component for possible losses which, of course, may not eventuate.
The financial arrangement for the Commission are dealt with in Part IV of the Bill. The Bill makes provision for trading banks to participate in providing the finance required for the working capital of the Commission, and the Government would guarantee such loans as trading banks may make available to the Commission on acceptable terms and conditions. The Government would make available such finance as may be required by the Commission beyond any funds provided by the trading banks. In regard to the operating costs of the Commission, the Government would meet any losses resulting from the resale of wool purchased by the Commission. Such losses would include interest payable by the Commission on capital borrowed for purchasing wool as well as storage, handling and selling costs, as approved by the Minister, which could not be recovered from the resale of wool. ft is quite probable that the Commission will make profits. The first charge on such profits would be for meeting any losses which the Government has borne on behalf of the Commission. Remaining profits would be set aside as a contingency for meeting any future losses. Profits and losses of the Commission will be calculated on a financial year basis and certified by the AuditorGeneral.
Provision is made in the Bill, however, for the Government to make advances to the Commission during a financial year for the meeting of losses and a suitable provision is made in the Bill for the appropriation of any funds which may be required for this purpose. In regard to the other operating costs of the Commission, the Government will continue to make available the funds required to meet one-half of the rehandling and brokers’ administration charges for the elimination of one-, two- and three-bale lots covered by the present price averaging plan. The Government’s commitment for these costs is estimated at S3. 7m in a full year. In regard to the voluntary pooling of wool, which would be an extension of the price averaging plan, growers concerned would be expected to meet all the costs involved themselves. The balance of the operating costs associated with the operations of the Commission comprises interest on money borrowed for making advances to growers, one-half of the rehandling costs and brokers* administration charges for the elimination of one-, two- and three-bale lots under the price averaging plan and the total administrative costs of the Commission. These costs would be met by wool growers through appropriate deductions, by arrangement with wool selling brokers, from the proceeds of the sale of the growers’ wool.
I would like to make it clear that wool growers would not be called upon to make any contribution for the capital requirements of the Commission. Provision is made in clause 31 of the Bill that until 30th June 1971, there may be paid to the Commission out of the Consolidated Revenue Fund such sums as the Treasurer is satisfied are necessary for the Commission in carrying out its responsibilities under the Act. Normally, a limit would have been placed on the payments to be made but in the present case this has not been possible because of the difficulty of estimating, at this stage, the amount of. money that may be required during the current financial year. Accordingly, to allow the Commission to commence operations without delay it was necessary to meet the situation by the provision made in clause 31. To protect the public interest, however, the Treasurer and the Minister for Primary Industry will closely scrutinise any proposals for payments to the Commission before approving them.
Part V of the Bill covers miscellaneous matters associated with the operation of the Commission. These include provision for the employment of staff by the Commission; safeguarding the interests of staff now working for the Wool Marketing Corporation who would be employed by the Commission: auditing of the accounts of the Commission by the Auditor-General; annual reports to the Minister on the operations of the Commission which would be required to be tabled in Parliament; and the provision for making regulations.
In introducing this Bill the Government is acting in accordance with the wishes of the wool growing industry. The original resolutions passed by the wool growing industry organisations calling for the establishment of a statutory wool marketing authority used the term ‘single marketing authority’. This term was still used by the Advisory Committee of the Australian Wool Board in keeping with its terms of reference. The outline of the authority drawn up by the Advisory Committee and which was endorsed by the industry and put to the Government clearly did not envisage a single body with monopoly powers to buy and sell the whole Australian wool clip., which the term ‘single’ implies.
What was put to the Government was a body which should be given certain powers relating to the whole clip but working within the existing marketing arrangements in which a number of private firms carry out the physical task of selling wool. The Government has very largely adopted the proposals put to it by the industry and they have been embodied in this Bill. In considering this Bill’, we should keep in mind the critical position in which the wool growing industry now finds itself. Due to the catastrophic drop in wool prices over the past 18 months, the average price being received by wool growers today is the lowest for 24 years. On the other hand, wool growers’ costs have increased very considerably indeed over this period. I think it can be said that the position of most woo! growers is a parlous one and in many cases, due to the advent of drought, a desperate one. - Because of the substantial contribution which wool makes to our export income - still some 20 per cent despite the extremely low wool prices - and because of the almost total dependence of large regions of Australia on wool growing, the wool industry must, by all measures available, be restored to a viable condition. The Government considers that reform of the present marketing system, although not the complete answer to the problems facing the wool industry, can do much to safeguard wool growers against losses which they often sustain under the present marketing arrangements. The marketing reforms which this Bill aims to bring about, in conjunction with other measures now being pursued as a matter of urgency by the Government - such as debt reconstruction and farm adjustment - will assist materially in the rehabilitation of this great industry. 1 commend the Bill.
Debate (on motion by Senator Wilkinson) adjourned.
Motion (by Senator Drake-Brockman proposed:
That the resumption of the debate be made an order of the day for a later hour in the day.
– The proposal before the Senate is even worse than I anticipated. The proposal is that we discuss the Australian Wool Commission Bill al a later hour in the day. Let us trace the history of the Bill, lt was introduced in another place on Tuesday afternoon, and after the second reading speech was delivered by the Minister for Primary Industry (Mr Anthony) the debate was adjourned for one day. It was resumed yesterday and I understand it continued until approximately 4.30 or 5 o’clock this morning. The Bill was transmitted to this place . together with a message from the Speaker of .the other place, the second reading speech has been delivered, and it is intended that the debate be resumed at a later hour in the day. Thi Senate is supposed to be in session until 1 1, o’clock tonight. How could any person have an opportunity to study this Bill before the debate is resumed later (his day? I realise that at the end of a session very many things are done - not here but elsewhere - in relation to the passage of legislation.
I would like honourable senators opposite to name any other measure, leaving aside the Budget which concerns the financial position of the nation, that are more important than the one presently before us. Everyone here has cried - in fact buckets have been filled with tears - over the tragic position that is facing the wool growers. The Government expects these measures contained in the Bill to alleviate their position somewhat. But surely those who want to take part in the debate on this Bill should have the right to give it the consideration that it warrants. Surely they should have the right to study the Bill to see whether they want lo move any amendments, lt is not a matter of whether one side is opposing the Bill, lt is- an important measure; the Minister’s second reading speech covers 24 foolscap pages. I have heard that the expenditure under this measure will amount to about $115m I do not know whether the Government expects to pick up the dollars down the street. I do not think there is anyone in this chamber who does not want to help the wool growers and others engaged in rural industry. We have our job in front of us, particularly in view of what we heard yesterday. This Bill deals with an industry that has really carried this country, as far as exports are concerned, until very recently. I doubt whether the mineral resources of this country even now are paying more into the export pool than is the wool industry. The Government is in such a hurry to finish the business on the notice paper that it does not want to give us even 24 hours to have a look at the Bill.
– Your Leader says he has no objection to dealing with it today.
– All I am concerned about is that the Government has had the effrontery to move the debate be adjourned to a later hour in the day. I am not being offensive to the Leader of the Government when 1 say that. I expected the motion for the adjournment of the debate to use the term ‘for the next day of sitting’. If that had been the case, I would have wanted to have explained what ‘the next day of sitting’ means. Does it actually mean what the words say - that we will be sitting again tomorrow and the debate would be resumed tomorrow? Even if the motion had been moved in those terms I was going to object. I think that instead of crying about the plight of the wool growers the Government should at least let us understand what it wants to do. It is all right for the Minister for Air (Senator Drake-Brockman), who has his officers to provide the answers to any questions which may be asked. I am not saying that in a derogatory manner. I do not expect any Minister to know all the answers, but at least we have to determine which questions we want to ask.
The Minister began the second reading speech at about 11.10 a.m., and he wants us to go on with the debate later today. This is just making a farce of this chamber. The Government might as well just bring in Bill after Bill and say: ‘Here goes. We will not have any discussion’. In that case, the Executive would be ruling the nation. I ask the Government at least to treat the House with respect. Every member of this Parliament irrespective of his Party and the mass of the people outside want the House to be treated with respect. If the people outside knew and understood what the Government wants to do they would say: Why do we send anyone there at all?’ Tins situation is just a farce. I ask the Government to give consideration to the fact that except for the Budget this is the most important measure we have had to deal with this session.
– by leave - I think it is unreasonable to attempt to proceed with the Australian Wool Commission Bill 1970 today. I will not go into the reasons because they would be only a repetition of what has been said. The sensible thing to do would be to bring the Bill on on Monday. At least there should not be any attempt to proceed with it today in view of its importance.
– by leave - I am not closing the debate. Honourable senators can speak after I have finished if they want to, although I do not think there will be any purpose in thendoing so. What I have done is in the tradition of what is always done at this time. It gives flexibility to the Leader of the Government because of what may emerge later on. Senator Kennelly has probably been in the Senate longer than most honourable senators. But to hear him speak a few minutes ago one would have thought he had never been in Parliament in his life. He knows that this is a procedure to give flexibility. The Leader of the Opposition (Senator Murphy) has said that the Australian Labor Party is not ready to proceed with the Bill. Therefore I ask Senator DrakeBrockman to amend his motion so that the debate will be resumed on the next day of sitting.
Motion (by Senator DrakeBrockman)by leave - agreed to:
That the resumed debate be made an order of the day for the next day of sitting.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(12.3) - I move:
The purpose of this Bill is to give effect to the new arrangements settled at the Premiers Conference in June for the payment of financial assistance grants to the States over the 5 years commencing with 1970-71. These arrangements are to replace those that have operated since 1965 and were given effect to in the States Grants Act 1965 as amended. As the financial assistance grants finance about one-half of the current Budget outlays of the States, they are a very important factor in determining the standard of services provided by State governments. They are also, of course, an important element in the Commonwealth Budget, where they account for about one-sixth of total Commonwealth outlay.
Under the arrangements which operated from 1965 the grants formula provided for the grants to increase each year in proportion to increases in the population of each State and in average wages, these being the two main factors responsible for increases in recurrent outlays of State Budgets. In addition, the grants increased in accordance with a betterment factor of 1.2 per cent, this element being designed to help the States improve the standard of their services.
The effect of this formula was to increase the grants at a rather faster rate than the gross national product and this was undoubtedly one of the main factors behind the increasing proportion of national resources that has been devoted to the provision of government services in the State sector. Outlays by the State sector as a whole increased from just over 14 per cent of the gross national product in 1959-60 to 16 per cent of GNP last year and, contrary to the impression given in some quarters, this enabled a significant improvement in standards of State services over the period.
To keep up with community demands for improved services the States have had, at the same time, to increase the severity of their own taxes and charges. Against this background the States argued that, with fairly limited tax fields, they have found it increasingly difficult to maintain the rate of growth of weir expenditures. Their own solution to this situation, advanced in a joint statement made prior to the February 1970 Premiers Conference, was to suggest that they bc given access to income tax broadly along the lines of the system operating in Canada.
The Government did not accept this approach. Allowing the States access to income taxation would make the Commonwealth’s task of managing the economy more difficult, and a scheme along the Canadian lines could result in different rates of income tax applying in the various States. This would mean the end of uniform income taxation, which we believe has great advantages for the community and is the system preferred by the Australian public. Further, as income tax collections fluctuate markedly from time to time, adoption of the States’ proposals could have created difficult budgetary problems for them in some years. In addition, the fact that the per capita yield of income tax varies significantly between the States would have made it difficult to work out equalisation grants satisfactory to the less populous States.
The Commonwealth did accept, however, that there was a need for a significant increase in Commonwealth revenue assistance to the States. This is to be achieved in 2 main ways - by increasing the financial assistance grants and by reducing the burden on the States of debt charges. The reduction in the burden of debt charges is provided for in 2 separate Bills that will be introduced shortly, but I would like to emphasise that the combined effect of the new measures should be to increase the rate of growth of total Commonwealth general revenue assistance to the States by an average of between 21 to 3 per cent per annum more than if the old arrangements had continued. Since, as I have mentioned, the grants under the old formula had themselves been’ growing at a faster rate than the Gross National Product, this represents a very significant improvement.
The total amount of Commonwealth assistance that will accrue to the States under these new arrangements cannot be estimated precisely as it will depend on a number of unknown factors such as future movements in- average wages, in population and in interest rates. However, if average wages and population were to increase at approximately the same average rate as in the 5 years ending in 1969-70, and on certain other assumptions, the States would, under these new arrangements, receive an estimated $70m more financial assistance in 1970-71, and about $800m more over the 5 years as a whole, than would have been the case if the previous arrangements had continued unaltered.
The increase in the financial assistance grants provided for in the present Bill is being achieved in several ways. First, while the grants formula applying under the previous arrangements will continue to be used to determine the formula grants payable to each State, in 1970-71, there will be payable in 1970^71 a further amount of $40m distributed between the States in the same proportion as the formula grants. Secondly, for purposes of determining the formula grants for 1971-72 and subsequent years, the additional amount of $40m paid in 1970-71 is. to be included in the formula grants base and. the formula itself will be improved by increasing the betterment factor from 1.2. per cent to 1.8 per cent. Thirdly, in addition to the revenue grants to be distributed between all the States, further grants of a general revenue nature are to be paid to particular States.
For Queensland, there is to be a continuation over the coming 5 years of the $2m annual addition that was made to the base on which the State’s formula grant was calculated over the 5 years of the previous arrangements. The Government takes the view that, in spite of the considerable improvement that, has been effected in Queensland’s share of the grants over the last 5 years, the share of the grants now being received by that State still compares adversely with those of the other. States and needs to be further increased. Over the coming 5 years as a whole the increases should yield nearly 40m for
Queensland on top of the State’s share of the normal formula grants.
Western Australia will also receive grants in addition to its formula grant and in lieu of the amount of $15.5m paid in both 1968-69 and 1969-70. These additional grants will start at $ 12.5m in 1970-71 and will be reduced by $3m per annum in each of the subsequent 4 years. This comparative reduction is proposed because of the significant improvement that has been occurring in Western Australia’s relative financial capacity. The Government takes the view that, if Western Australia were to continue to receive the same share of the total assistance grants as previously that would be unfair to the other States and could result in a distortion in the allocation of revenue funds between the States. However, in recognition of the rapid rate of population growth and economic development in the State, the Commonwealth has undertaken to support in the Loan Council increases in Western Australia’s share of capital funds available from the borrowing programmes to offset the comparative reductions in the revenue grants.
The Bill also provides for the payment of a grant of $2 per capita to New South Wales and Victoria in each of the next 5 years. Those 2 States have pointed out that the absolute gap between their per capita grants and those of the smaller States has been becoming larger year by year. These per capita grants are not to be included in the base used to determine the formula grants payable to New South Wales and Victoria. It was made clear at the Premiers’ Conference in June that, in the event that any of the 4 less populous States considered that the additional per capita grants for New South Wales and Victoria would adversely affect their ability to provide services of a standard comparable with those in New South Wales and Victoria, it would be open to them - that is the States referred to - to make an application to the Grants Commission for a grant in addition to their share of the financial assistance grants. This may be contrasted with the previous grants arrangements under which all States that had not been applying for special grants were expected to refrain from doing so.
Honourable senators will be aware that, since the Premiers’ Conference, South Australia has made an application for a special grant and that the Government has accepted the Grants Commission’s recommendation for the payment of an advance of $5m to the State in 1970-71. A Bill to authorise the payment of special grants to both South Australia and Tasmania in 1970- 71 will be introduced at a later hour. 1 might interpose here that the question of the distribution of the general revenue grants between the States is one of considerable complexity, lt was for this reason that it was suggested by the Commonwealth at the Premiers’ Conference that, in addition to its responsibility for recommending annual special grants to claimant States, the Grants Commission might also have the task of investigating and recommending on the distribution of the general revenue grants between all the States for purposes of the quinquennial reviews of the arrangements. We are still consulting with the States on this suggestion.
Following a request by the Premier of Tasmania since the Premiers’ Conference, the Government has decided to reduce by $l0m the special grant recommended by the Grants Commission for payment to that State in 1970-71 and to add the same amount to its financial assistance grant. The Bill therefore provides for the payment to Tasmania of an additional financial assistance grant of $10m in 1970-71 and for the incorporation of this amount in the base to be used to calculate the State’s financial assistance grant for 1971- 72 and subsequent years. This arrangement will not affect the total general revenue grants paid to Tasmania either in 1970-71 or later years. That total will continue to be determined, in effect, by the special grant approved each year on the recommendation of the Grants Commission.
As under previous arrangements, an important feature of the new arrangements is that the financial assistance grants are provided on the basis that there are no significant changes in the financial relationships between the Commonwealth and the States during the period of the arrangements. In particular, the Commonwealth expects that the States and their authorities will continue to pay payroll tax and that the distribution of tax resources between the Commonwealth and the States will remain unchanged. Any significant change in these relationships would permit a review of the arrangements with a view to adjustment of the grants. Provision for this is made in clause 11. In this context I wish to make particular mention of the responsibility of the State governments for their local authorities. The Commonwealth Government is well aware of the pressure being exerted by the community for an expansion in local government services, just as it is aware of the increasing demands for expansion in other areas of State Government responsibility. These demands for continued improvements in all areas of State Government responsibility were an important factor in influencing the Commonwealth Government to improve the revenue grants arrangements in the manner proposed and, given the calls that we ourselves are facing, the Commonwealth Government must continue to look to State governments to assess the needs of their local authorities in the light of the expenditure responsibilities of those authorities and the revenue resources available to them.
I feel confident that the new financial assistance arrangements constitute a significant improvement in CommonwealthState financial relationships and that they should help the States to continue to improve the standards of services they provide. Of course, an even faster rate of improvement in standards would be desirable. But the supply of real resources is limited and, if we are to provide proper scope for the growth of the private sector of the economy, the achievement of higher standards in government services must necessarily bc a gradual progression. Honourable senators will doubtless be interested in the total assistance to be provided to each State under the new arrangements and, with the concurrence of honourable senators, I incorporate in Hansard a table setting out estimates that have been compiled on the assumptions mentioned earlier. The table is designed mainly to show the additional assistance to each State by comparison with the assistance that would be provided if the previous arrangements continued unaltered.
I emphasise that, while the estimates of this additional assistance should prove to be close to the mark, the figures of total assistance are dependent on the assumptions stated and should not be regarded as precise estimates or forecasts of the total amount of Commonwealth revenue assistance to be proved under the new arrangements. I commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(12.17)- I move:
That the Bill be now read a second time. The purpose of this Bill is to give effect to the undertaking by the Commonwealth at the June Premiers’ Conference that, as part of the new financial assistance arrangements designed to provide increased revenue assistance to the States, the Commonwealth would take over responsibility for the debt charges on portion of existing State Government debt. The background to the new arrangements, and their overall effect, have already been explained in my speech introducing the States Grants Bill 1970. The background to the present measure, and to the States Grants (Capital Assistance) Bill which I will introduce shortly, is the compaints which State governments have made in recent years concerning the effect of their growing indebtedness in requiring increasing outlays from their budgets on interest and sinking fund charges. In particular, they have pointed out that perhaps one half of their capital expenditure is on works that are generally of a non-revenue producing nature. As a consequence, the debt charges on such expenditure have to be financed, in effect, from general revenues. While the financing of debt charges naturally results in less funds being available to the Slates for expenditure in other fields, debt charges have been one of the slower growing items of State budget expenditure. There is no evidence to indicate that they have brought about a deterioration in the financial position of the States, as has been suggested in some quarters. The general revenue grants paid by the Commonwealth to the States, out of which the States have been free to meet debt charges on nonrevenue producing capital expenditure, have been growing at a faster rate than these debt charges. However, in the light of the States’ complaints about the burden of debt charges, the Government felt that it would be appropriate to provide some of the increased revenue assistance to the States under the new financial assistance arrangements in the form of assistance with debt charges.
This Bill provides for grants to the States in respect of the interest and sinking fund charges on a parcel of State debt amounting to $l,000m, details of which are set out in the first and second schedules. The grants will be one-fifth of the interest and sinking fund charges on this debt in 1970-71- equal to $1 1.5m- twofifths in 1971-72, and so on. In this way the Commonwealth will, by 1974-75. be providing an annual grant of $57.5m to meet the total debt charges on the parcel of $ 1,000m of State debt. It is proposed that the debt concerned will be formally transferred to the Commonwealth in June 1975. I should mention that the securities in the parcel of debt carry an average interest rate of 5.5 per cent. This is significantly higher than the average rate of 5 per cent on all State Government securities on issue at 30th June 1970. The total grant payable each year will be distributed between the States in the same proportion as the total outstanding debt of each State under the financial agreement as at 30th June 1970. The amount payable to each State in 1970-71 under this arrangement is as follows:
I commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(12.22)- I move:
Thai the Bill be now read a second time.
This Bill provides for the payment in 1970-71 of a grant of $200m to help the States in financing capital works from which debt charges are not normally recovered, such as schools, police buildings and the like. As in the case of the States Grants (Debt Charges Assistance) Bill, this measure is one element in the new financial assistance arrangements to increase the revenue assistance available to the States. By way of background to this particular measure I should mention that, throughout the post-war period, borrowings by the Commonwealth in Australia and overseas have fallen well short of the amounts required to finance the total capital expenditures of the Commonwealth and State governments. In this situation the Commonwealth has recognised that, if it had taken a significant proportion of public sector loan raisings, with the division of tax resources that has prevailed the States would have had limited scope to finance capital expenditure from revenue resources. In these circumstances, the greater part of loan raisings has gone to the State sector. However, in all but 2 years since 1951-52 new money raisings have been insufficient even to finance the borrowings approved by the Australian Loan Council for the works and housing programmes of the State governments. Rather than see a shortfall in these programmes, the Commonwealth has agreed to make up the difference through special loans issued on terms and conditions based on those offered in public loans raised during the year. In recent years the funds subscribed by the Commonwealth to these special loans have been derived from general revenue sources.
The interest and sinking fund charges on special loans have featured as an important element in the States’ complaints about the burden of debt charges and. as one way of helping to ease this burden, the Government decided that it would be prepared to make available part of the works and housing programmes of the States in the form of capital grants. The grants will mean that the States will have to meet less debt charges from their revenues than would otherwise be the case. In this way revenue funds will be freed for expenditure by the States in other directions. The provision of the capital grants will not, of course, result in any increase in the total capital funds available to State governments from the Loan Council borrowing programmes. It will mean, however, that the States will have available substantial capital funds, on which no debt charges will be payable, to help meet expenditure in non-revenue producing fields.
The Bill provides for a capital grant of $200m in 1970-71 to be distributed between the States in the same proportion as the total 1970-71 works and housing programme, excluding a special loan allocation of $3m for Western Australia. Because of the timing of interest and sinking fund payments on loans raised during the year, there will be only a marginal saving of debt charges as a result of the 1970-71 grant. However, in 1971-72 the full year’s saving in debt charges from the 1970-71 grant is estimated at approximately $14m. Further, as the Commonwealth has undertaken to increase the capital grant in future years in proportion to the increase in the total works and housing programme, the annual saving in debt charges will increase year by year and, over the 5 years of the new financial assistance arrangements, the resultant saving to the States would be nearly $150m on the assumption that current interest rates continued. I commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(1 2.27) -I move:
That the Bill be now read a second time.
The main purpose of this Bill is to authorise the payment in 1970-71 of special grants of $5m to South Australia and$13.68m to Tasmania. These payments are in accordance with the recommendations by the Commonwealth Grants Commission contained in its thirty-seventh report, which has already been tabled. The Bill also seeks authority for payment of advances to the 2 States in the early months of 1971-72 pending receipt of the Commission’s recommendations for . that year and the enactment of new legislation.
Special grants are paid to financially weaker States, the purpose being to compensate them for such factors as lower capacity to raise revenue from their own resources and higher costsin providing government services of a standard similar to those in the financially stronger States. When special grants were first paid they constituted the only regular form of general revenue assistance paid to the financially weaker States for this purpose. The main way in which special compensatory assistance is now provided is through the higher per head financial assistance grants paid to the 4 less populous States. The financial assistance grants are, of course, the main general revenue grants to the States. The special grants, therefore, may be regarded as supplementing the financial assistance grants, and having the special characteristic of being independently and expertly assessed by the Grants Commission.
Up to 1959, South Australia. Western Australia and Tasmania received annual special grants on the recommendation of the Grants Commission. South Australia withdrew from the special grants system as from 1959-60 and Western Australia as from 1968-69, but Tasmania has continued to apply each year. South Australia re-applied for a special grant early this financial year. The background to that application was set out in the second reading speech introducing the States
Grants Bill 1970. The method used by the Grants Commission, briefly put, is to calculate grants which will bring the claimant States’ budgetary positions up to those of the States taken as standard, after allowing for differences between the States concerned in financial practice and in efforts to. raise revenue and control expenditure. This involves a detailed comparison of the standard and claimant States’ budgetary revenues and expenditures. From 1959-60 the standard States have been New South Wales and Victoria. The Commission, in recent reports, had contemplated changing to a standard based on the experience of all the nonclaimant States as from 1970-71. However, in this year’s report, the Commission states that:
In the circumstances of the new financial assistance arrangements the Commission is inclined to the view that a two-State standard may be the more logical and convenient to use, and in recommending the advance grant for 1970-71 it has had this in mind. However, it considers that it should not make a final decision on the matter at this stage, and it will give further consideration to the budget standard during the course of the hearings later this year and in 1971.
The particular aspect of the new arrangements the Commission had in mind was the Commonwealth’s decision to make additional grants of $2 per head to New South Wales and Victoria and. at the same time, to allow the other States to apply for special grants. Under the previous arrangements, all States that had not been applying for special grants were expected to continue to refrain from doing so. The Commission has not announced any other major changes in principle or method in this year’s report, but the report does reflect the continuing effort by the Commission to refine the bases of its calculations. The recommendations by the Grants Commission for payment of special grants consist of 2 parts. One part is based on an estimate of the claimant State’s financial need in the current financial year, and is treated as an advance payment subject to adjustment 2 years later when the Commission has compared in detail the Budget results and standards of effort and of services provided in that year for both the claimant State and the States which it takes as standard. The other part represents the final adjustment to the advance payment made 2 years earlier and is known as the completion payment.
For 1971, the Grants Commission has recommended a total special grant to Tasmania of $23,680,000, made up of an advance payment of $22,000,000 for 1970- 71 and a final adjusting payment of $1,680,000 in respect of 1968-69. The basis of these recommendations is set out in the Commission’s report. As explained in the second reading speech introducing the States Grants Bill 1970, the Government decided, following a request by the Premier of Tasmania, to reduce by $10m the special grant recommended by the Grants Commission for payment to that State in 1970-71 and to add the same amount to its financial assistance grant, thereby incorporating it in the base to be used to calculate the State’s financial assistance grant for 1971-72 and subsequent years. This arrangement will not affect the total general revenue grants paid to Tasmania either in 1970-71 or later years. That total will continue to be determined, in effect, by the special grant approved each year on the recommendation of the Grants Commission. Under this arrangement, Tasmania’s special grant for 1970-71 is thus reduced from the amount of $23,680,000 recommended by the Commission to $13,680,000. With the concurrence of the Senate, I shall incorporate in Hansard a table which compares the amounts recommended for payment to Tasmania in 1970-71 with those paid in 1968-69 and 1969-70.
South Australia’s application for a special grant was supported, as is the usual practice, by a detailed submission. This was discussed at special hearings of the Commission in August. The basis of that submission was that, since 1959, the State’s relative financial position had deteriorated while its share of the general revenue grants had, for a number of reasons, declined. The State submitted that, as a result, it was now unable to provide services of the same standard as the richer States. The Commission was. of course, able to make only preliminary investigations into South Australia’s application and the recommended advance grant of $5,000,000 to South Australia, along with the advance of $12,000,000 to Tasmania will be subject to adjustment in 1972-73 after a detailed examination of the 2 States’ relative financial positions over the next 2 years. Those adjustments could be either positive or negative.
In the second reading speech on the States Grants Bill 1970 it was mentioned that the Government was consulting with the States on the suggestion made by the Prime Minister at the June Premiers Conference that, in addition to its responsibility for recommending annual special grants to claimant States, the Grants Commission might also have the task of investigating and recommending on the distribution of the. general revenue grants between -all States for purposes of the quinquennial reviews of the arrangements. The question of the appropriate distribution of general revenue grants between the States is one that is both important and difficult. The Government is pleased to acknowledge the considerable contribution which the Grants Commission continues to make.
The recommendations of the Grants Commission have been adopted by Parliament each year since the Commission’s inception and the Government considers that they should again be accepted on this occasion. Accordingly, I commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
The ACTING DEPUTY PRESIDENT (Senator Davidson) - Two hours having elapsed from the time of meeting of the Senate, motions cannot be proceeded with and the Order of the Day will be called for pursuant to standing order 127.
Motion (by Senator Sir Kenneth Anderson) agreed to:
That Order of the Day be postponed until after consideration of business of the Senate.
– Before Senator Devitt speaks to Notice of Motion No. 1 standing in his name I wish to make a short statement by arrangement with the Regulations and Ordinances Committee. In reference to the Rules, the subject matter of this motion, the Attorney-General (Mr Hughes) has communicated with the Committee and indicated that amendments will be made in the sense in which the Committee desired. I have been asked to state this morning that those amendments will be made as soon as possible. I give that undertaking and indicate to the Senate and to the Committee that the regulations will be going before the Executive Council this day at 5 p.m.
– In view of the assurance which the Minister for Works (Senator Wright) has just given to the Senate, I now withdraw Notice of Motion No. 1, Business of- the Senate, standing’ in my name.
– I move:
The Senate will recall that on 21st May 1969 the Senate debated a similar motion to disallow a Legal Practitioners Ordinance in the Australian Capital Territory. That motion was finally carried by the Senate and the ordinance was disallowed.The present ordinance deals with many of the matters dealt with by the previous ordinance. Many of the provisionsof the ordinance are quite unexceptional, and in fact some are quite valuable. Honourable senators of my Party and of other Parties have at all times indicated that they did not wish to destroy or in any way to inhibit the coming into operation of laws concerning trust accounts and so on. That still remains our attitude.It is extremely important that such provisions exist for the protection of members of the public and also for the proper operation of the profession. Senator Rae - If these particular clauses are disallowed is it practical to expect the trust account provisions to continue to operate?
– I think it is. If there are any difficulties about any kind of drafting, I think they could easily be attended to. I have indicated that we on the Opposition side certainly would facilitate any such move. There would be no problem about facilitating this; it is simply a matter of drafting. The Senate has procedures available to it which would enable it to overcome any difficulties in that way, and the Ordinance could be modified to deal with them.
The main basis of objection to the portion sought to be disallowed is that there remains a division, on the face of it, in the profession. As I recall it, that was the basis of objection on the last occasion when the Ordinance was before us. In view of the previous debate and in view of the time factor I propose to deal with this matter in general. I do not think that this is an occasion to go into all the technicalities of the matter. I see that there is assent from other honourable senators. I shall explain the way in which I propose to deal with it. Largely, this is a technical matter. The lawyers understand it and they understand the debate. The matter was quite well canvassed before.
I am referring now to the division of the profession. These are a couple of other parts of the Ordinance which do not fall into that category and to which I will draw the attention of the Senate a little later. On the main issue, that is whether there should be a divided profession or an amalgamated profession in the Australian Capital Territory, the approach of the Opposition is that there should be an undivided profession. It is not satisfactory to have the profession divided as it is in some places. I suggest that the profession will better serve the people of Australia and be better able to carry on as a profession if it is amalgamated, not only here but elsewhere. I understand that in general this was the basis upon which the last Ordinance was disallowed by the Senate.
– That was not a general view. It was the view of some but hot everybody.
– That may have been so, but I think it was the view of the majority.
– The last Ordinance provided for three sorts of practitioners - barristers, solicitors, and barristers and solicitors.
– I thank Senator Wheeldon for his interjection. That was so. My feeling is that at the time of the vote a majority of the Senate was against the division of the profession.
– Some of those who voted against the disallowance still were against the division of the profession but saw the advantage of getting the trust account provisions as outweighing the other matter.
– May I say that I feel, rightly or wrongly, that the majority of the Senate was against a divided profession. I understand the position to be that in this Territory the legal profession is against a divided profession. My understanding is that this would represent the attitude of the profession as a whole, as expressed by the Law Society. I put this with some diffidence because one always is liable to misinterpretation. But I understand this also to be shared by the Bar Association in the Territory, some of whose members are members of the Law Society. 1 want to put a qualification on what I have just said. It is this: I conceive the position to be that those in the Territory concerned with the legal profession want theprofession to be undivided, that we should get away from the notion of barristers and solicitors or barristers and solicitors. There ought to be, for want of a better word, all legal practitioners or all counsel or all lawyers.
– By that do you mean that there should be no-one to do the actual work of banisters - the court advocacy and so on?
– No. Let me explain it further. Those who wish to do so would specialise in any particular activity they desired within the general area of the profession. I understand also - this certainly is my feeling - that in matters which concern any particular speciality, whether they be trial lawyers, conveyancers or any other group which might arise, the people operating in those fields ought to be given some kind of say if their views differed from those of the profession in general. They ought to be granted some recognition by the court. This may extend to matters such as admissions or discipline. I think this would be a reasonable approach. I think it would commend itself to both the Law Society and the Bar Association. From what 1 have ascertained, the area of difference between those in those bodies is not very great.
The vexed problem which arises is symbolised by the use of the expressions ‘barristers’ and ‘solicitors’. The feeling, which I think is not the feeling of either of those bodies but the feeling perhaps of the Attorney-General (Mr Hughes), or of those who have compiled this Ordinance, is that they want to leave in the Ordinance the provisions objected to as a kind of lever which will mean that the profession can in some way continue as a divided one or develop into a divided one. This really is the point at issue. If this Ordinance is conceived as being intended to maintain a divided profession, then that provision should be struck out. That is the real nub of the problem as I see it. Other honourable senators may see it differently. 1 am quite confident that a redrafted ordinance could meet the wishes of virtually all members of the profession in this Territory, lt should be one which would not, on the face of it, appear to divide the profession but which would give the right to those who might have some special interest to be heard on the occasion when that special interest arises, and when they have some different viewpoint from the body which represented the profession as a whole. As I understand the position, I do not think there would be any objection to that being done. The vice in this Ordinance is the way it is drafted, the way in which the recognition is given, and the provisions which indicate a desire on the part of those who have made the Ordinance to maintain a divided profession or to encourage a divided profession. I refer particularly to section 20 of the Ordinance which reads:
Subject to this Ordinance, a person whose name is on the Roll of Barristers and Solicitors -
is entitled to practice in the Territory -
as a barrister and solicitor,
as a barrister; or
as a solicitor; and
has the right of audience in any court of the Territory.
This indicates that there is, and that it is intended to maintain, a division.
– No, that is not so.
– The Minister interpolates: ‘No, that is not so.’ I understand that there is some argument that this needs to be stated in some way to meet the requirements of the Judiciary Act. I do not accept that this cannot be met in some way by definitions which would make clear that the profession here was one profession without a division which, on the face of it, is put there. I suggest to the Minuster that it would have been much better had a real attempt been made to categorise those operating in the profession by one single name and thus avoid the kind of statement which appears in section 20. Let us have it that there is one profession here. Let us have it that people in the profession are entitled to act in any capacity in which they see fit - to concentrate on conveyancing, to be a trial lawyer, to do taxation work or something of that nature. Specialties shoud arise because we are a specialised society. No one would want discouragement of any such speciality.
May I say as a digression, but related to this, that, it is important to observe the advances which have been made. 1 understand from the Bar Association - I have a letter to this effect - that the articles of the Bar Association permit of barristers belonging to the Association being in partnership. I understand that the AttorneyGeneral - he has put it in writing - takes the view that there is nothing in this Ordinance which would prevent practitioners - .1 will use that word, because we get into difficulties if we use the word ‘barristers’ - who happen to practice as barristers, using the terminology in section 2fl of the Ordinance, being in partnership. I am told further by the representatives of the Bar Association that not only is this a right under the articles and’ accepted by them as being permissible-
– lt is the very nature of the amalgam, is il not?
– It is not necessary hut I want to make clear that the course of the discussions, as has been put lo me, is that the Bar Association will not object and will faithfully accept the position that its members may carry on in partnership, and that it would have no objection to the admission of any barristers who were in partnership to the Bar Association.
– Is that barristers in partnership with solicitors, or barristers in partnership with each other?
– J understand it to be barristers in partnership with each other.
– No, it is barristers in partnership with solicitors. One person may, in himself, combine the functions of a barrister today and a solicitor tomorrow.
– I thank the Minister for his elucidation of the matter which, 1 would think, is even more satisfactory than I had suggested in the limited way. This means a considerable advance in the evolution of the profession.
– Have the rules of the Australian Bar Association been amended to make that possible for members of a constituent body?
– I do not know and I have not made it my affair to investigate that matter through. The assurance has been given to me that under the rules of the Australian Capital Territory Bar Association and under the Ordinance those steps are permissible. That means a considerable advance in the conduct of the profession throughout Australia.
– There would be dire consequences for a member of the Victorian Bar or of the New South Wales Bar who sought to go into partnership with a solicitor.
– You mean a barrister who sought to do it in New South Wales or Victoria?
– That may be so. Temporarily I would hope that we would advance to the position where we would really have an undivided profession.
– But progress is slow, is it not?
– It seems to be. For the reasons which were outlined on the earlier occasion I think that an undivided profession is in the interests of the public and of the legal practitioners themselves.
My concern in relation to those who are trial lawyers - those who in some States are organised into the Bar - is that the changes in modern legislation and the effect of whole sets of provisions, whether they be income tax provisions, the develop-/ ment of the law, the necessity for advocates to be surounded by large libraries and by staff who can dig out things, will make it impossible to carry on effectively with the kind of division and with the kind of practices that we have had. It is important, if the rule of law is to be observed in this country, that we continue to have trial lawyers and professional advocates, people who spend most of their time in court, people who are familiar with the proceedings, so that they can act for and ensure that the rights of citizens are secured under the law. I do not think that it will be possible to do that in the future with the old fashioned system that we had. I think that that view is shared by very many members of the profession, including many of the most eminent advocates in this country. That is the approach that we have.
On the basis that this ordinance, on its face, still maintains the division in the profession, I think that those parts which do that should be struck out. I have no objection to the devising of an ordinance which, in appropriate circumstances, would give those who are specialising, such as the advocates, a right of audience on matters such as discipline, admissions and maybe on others which may arise. That is the commonsense thing which the law should develop. The present system which I feel certain is designed to prevent the clear legal statement that here is an undivided profession is not satisfactory. That is the nub of the matter. If it is intended that the profession be not divided in the Territory but that on appropriate occasions sections of the profession which have a special interest may be given a hearing, I should like that to be stated firmly by the Minister.
– I think you will find that it undoubtedly is the substance of the present ordinance.
– I think it also should , be expressed clearly in the ordinance, and I do not think that it is: I am sure that there has been a rearguard action by those who oppose the amalgamation of the profession.
Sitting suspended from 1 to 2.15 p.m.
– Before lunch I was making some general observations on the Legal Practitioners Ordinance for the Australian Capital Territory. I should indicate that my understanding is that the Law Society in the Territory, in substance, supports the objections which are being taken and which are covered by the motion for disallowance insofar as they relate to these aspects of the profession. My understanding is that the position of the Bar Association is that it supports the ordinance as it stands. Representatives of both bodies are in the precincts of the chamber. 1 may say that they get on together extremely well; there is no great hostility between the 2 branches of the profession.
My concern is that the way the ordinance is framed it shows an intention that the profession will be able to become divided. I would not like to see develop in this Territory what has developed in the State of Victoria where, despite the fact that on the face of the statutes the profession was to be an amalgamated one, what has happened is that, by developments that those familiar with it understand, the profession in fact has become a divided one, with a few exceptions. It would be better if this ordinance were so framed as to make it clear that there was to be an undivided profession. Then within the framework of the legal provisions covering the Territory there would be provision for audience to be given to those who were in any speciality, whether as trial lawyers, as conveyancers or in some other capacity, where it was desirable in relation to admissions, discipline or other matters. There may be other matters in respect of which it would be desirable that they be heard because they have a special interest.
That is the basis for the objection. As the matter stands, I have little doubt that it is the view of some of the people who are propounding this ordinance that, framed in this way, it gives the opportunity to develop a divided profession instead of making clear and ensuring that it will be an undivided profession in this Territory. That is the nub of the matter.
Several provisions apart from those that touch the question of the division of the profession are mentioned in the motion for disallowance. I refer, for instance, to sections 51 and 53. Section 51 states: (1.) The Chairman of the Disciplinary Board may administer an oath to a person appearing as a witness at an inquiry under this Division and the witness may be examined on oath. (2.) Where a person appearing as a witness at an inquiry under this Division objects on conscientious grounds to taking an oath, he may make an affirmation that he will state the truth, the whole truth and nothing but the truth in answering all questions that may be put to him.
It seems to me that that is objectionable and that it would be better if the common form - ‘oath or affirmation’ - were used.
– We are prepared to amend the ordinance to that effect.
– Speaking on behalf of the Attorney-General, the Minister says that he is prepared to have the ordinance amended to achieve what I am suggesting. I do not know what the proper course is.
– I suggest that we vote on the motion for disallowance on the basis of your first proposition, and on this point and the subject of privileges I give you an undertaking that wc will amend the ordinance as has been discussed.
– I thank the Minister. Because the matter has been raised and others may have views on it, perhaps I should indicate that the reason for taking this objection, the ground of which has now been conceded by the Attorney-General, is that no person should have to object on conscientious grounds in our society. He should be at liberty to take an oath or make an affirmation, and there should be no question of grounds or otherwise - let alone the possibility of some inquiry into his grounds. There is objection also to section 53. Sub-section (1.) of that section states:
A person appearing as a witness at an inquiry under this Division shall not refuse to be sworn or to make an affirmation or to answer a question relevant to the proceedings put to him by a member of the Disciplinary Board or by, or on behalf of, a person entitled to be represented at the inquiry.
– On that provision, too, we are prepared to make amendments to preserve the ordinary privileges.
– Yes. There the ground, which the Minister again is conceding, is that this may invade the important privileges that extend throughout the law, such as the doctrine against incrimination and the confidential relationship that exists between a lawyer and his client. The way the ordinance is framed, it might appear that those privileges would not stand against the express provisions of the ordinance.
I need say no more about this point.I will accept the proposition that has been put by the Minister and return to the main matter. There are a number of subsidiary questions that relate to the main matter of the division of the profession, such as the appointment of persons to represent, say. the Bar Association on the disciplinary body. My understanding is that, in the present situation of the Territory, with a small number of people in the Bar Association, there is an extremely restricted number of persons in that Association who are not members of the Law Society. It may well be that, if the view were taken - I do not suggest that this is my view - that the representatives should be chosen from those members of the Bar Association who are not members of the Law Society, the field would be unduly limited. But that is a subsidiary objection
The main point is that the ordinance ought to be framed in such a way that there will be clearly an undivided profession in this Territory. It can be done in such a way that proper and adequate provision will be made for the hearing of any persons who have special interests. The development of associations of those who have special interests probably is desirable and they probably will spread. But, on the face of it, this ordinance would make it easy for the growth of a division of the profession which ought not to exist.
– Even if the ordinance was amended as you have suggested, there would be nothing to prevent what is occurring in Victoria from developing here, would there?
– Do you mean even if we did not amend?
– If we amend as you suggest, what happened in Victoria could develop here.
– No. I would say that if we amended it as I suggest and did whatever was necessary to clean up the drafting to make sure there were no traps, if then there were an attempt to do what was done in Victoria further provision could be made in the Ordinance to prevent, by the use of any indirect means, any undermining of the intention that there was to be an undivided profession. The purpose of the statute in Victoria, as I understand it, was to prevent the growth of a division in the profession, and this was circumvented in Victoria by what happened in the profession. I should think that if the decision is made by the legislature that there is to be an undivided profession, whatever steps are necessary should be taken to prevent a division.
– You are already seeking the abolition of a separate bar.
– In the sense that it has grown in Victoria, yes. I made it clear earlier thatI am not against the growth here or elsewhere of the number of persons who would specialise as, to use a neutral expression, advocates or trial lawyers. 1 think this is an almost inevitable development as there will tend to be specialisation in other areas of the profession, but it ought to be an undivided profession. We should not have the kind of division which has grown in Victoria.
– You are not against a de facto separation, but you do not want to give recognition to the separation?
– That is right. To put it more clearly. I think there should be one profession. As in other areas, people will specialise in various branches. Undoubtedly there will be those who will specialise in advocacy, and they will have some special interest, as would other areas of the profession; but the kind of division which has grown up in Victoria and which exists in New South Wales is in my view no longer in the interests of the profession. It would be better to make it quite clear that this is not to occur in the Australian Capital Territory. From what has been said from time to time I understand that there will be an undivided profession here in the Australian Capital Territory. If that is what we want, let us make it quite clear. Do not let us leave room for developments such as have occurred in Victoria. I am not satisfied that room is not left; in fact I am sure that it is there. Certainly there are some who believe that it was left there intentionally, but I do not think there should be room for that to occur. Therefore I move that those sections of the Ordinance sought to be disallowed be disallowed. The motion having been moved, some honourable senators may want to press on with the other two matters, and it is open for them to do so, but I accept the assurance given on behalf of the Attorney-General and do not press for the disallowance of those two matters.
– For many years the law has treated the legal profession with such special regard that it has itself prescribed the means of qualification for those who wish to practise the law. lt is a very special province and creates a profession which makes a special contribution to the public interest. At this stage of the development of the profession in the Australian Capital Territory it is important that consideration be given to the fundamental rules upon which the profession should be constituted. The Senate gave attention to that matter last year and rejected a proposal whereby those who seek legal qualification to practise law in this Territory should be divided into three separate categories of barrister, solicitor, and barrister and solicitor. The ordinance which was rejected by the Senate last year provided that the admission to legal entitlement to practise should be on the basis of one or other of those three categories and, therefore, from the start divided the profession into three classes of legal practitioner. The present Ordinance defers to that view and completely accepts the viewpoint that from the aspect of legal entitlement to practise law in this Territory there should be only one criterion for or class of admission.
Nothing could be clearer than section 20 of the Ordinance which has been referred to and which states:
Subject to this Ordinance, a person whose name is on the Roll of Barristers and Solicitors -
is entitled to practise in the Territory -
as a barrister and solicitor;
as a barrister; or
as a solicitor; and
has the right of audience in any court of the Territory.
That is what the law prescribes if this Ordinance stands and that, I submit, is a view that should recommend itself to the Senate - that is to say, anybody who is admitted as a practitioner to the roll of the Supreme Court of the Australian Capital Territory should be entitled as a matter of law to practise either as an amalgam,, combining today the advocacy of a case in court and tomorrow advice as to a conveyance or a settlement, himself drawing it up and charging a solicitor’s fee; or he may wish to confine himself to a solicitor’s practice of domestic and property law; or he may wish to devote the whole of his attention to forensic advocacy or chamber advising as a barrister does. That is what this Ordinance provides - that there is only one type of admission and there is only class of person set down by the law, once a person has from the court his qualification to practise. There are already practising in the Territory T believe nearly 100 practitioners, a small percentage of whom - probably 16 or so - have constituted themselves into a bar association in the exercise of their right to form a lawful association which expresses their common interest.
The ordinance which is challenged today simply gives recognition for two purposes to the bar association, being a body of barristers who by voluntary association have constituted themselves into a section and who say that they will practise only in the courts and perform the functions of a barrister. One function is that they may be heard in objection to the admission of any person who applies to the court for admission as a barrister and solicitor, and the other gives them a right to be heard and to prefer a case for the suspension, disbarment or cancellation of admission of any person on the roll. In giving the Bar Association that right, it in no way as a matter of law prescribes a division of the profession. It simply recognises an existing association as a reputable, constituted section or unit of the profession which may, by virtue of its constitution, assist the court in guiding the membership of the profession in 2 activities.
If the Bar Association feels that there is an objection to the admission of any person who applies for admission as a barrister, a solicitor, or a barrister and solicitor, that person must apply under section 20 of the ordinance. That refers to a person who has the right to practise in any one of those 3 activities. In those circumstances, the Bar Association can be heard. If the Bar Association in the course of its practice of the profession comes in possession of knowledge that anybody on the roll is conducting himself in a manner that the profession regards as wrong it, as well as the Law Society or any other practitioner or the Attorney-General, may move the court for the cancellation or suspension of that person from the roll. I want to make it clear at the outset that this ordinance provides for only one form of admission. The people who will become legally qualified under this ordinance can practise as a barrister and solicitor, as a barrister, or as a solicitor. Who would deny any individual who is enrolled with the court the right to say that he shall practise in any one of those 3 categories?
The essential differences between the present ordinance and the one that was disallowed by the Senate last year are as follows: Firstly, the 1969 ordinance provided for 3 separate forms of admission, with consequential provision for 3 separate parts of the legal role of practitioners, whereas the present ordinance provides for a single form of admission, that is to say, admission in every case as a barrister and solicitor, adopting entirely the view that, as a matter of law, there should be one undivided profession described so that every individual in it can choose whether he practises in both branches or in either of them. Secondly, under the 1969 ordinance persons admitted as barristers only were not subject to the Disciplinary Board of the Law Society. But under the present ordinance, all persons admitted to practise, be they barristers, solicitors, or barristers and solicitors, are subject to the Disciplinary Board. That Board is constituted on a perfectly independent basis, neither by the Law Society nor by the barristers. Under Part III of the ordinance, the Board will consist of the judge and 4 members of the court who are barristers and solicitors appointed by the judge of the court itself. So no longer can complaint by the Law Society be held tenable that under the old ordinance a section of those practising law in the Territory are unamenable to the Disciplinary Board of the profession. Under this ordinance barristers and solicitors and those who prac tise as amalgams are amenable to the Disciplinary Board which is constituted by neither branch of the profession, lt is constituted neither by the Law Society nor by the barristers. It is constituted by the judge and 4 members of the profession whom he appoints.
– I think the number is 7.
– Thank you. The number is 7. 1 am wrong. The third difference between the 1969 ordinance and the present one is that the 1969 ordinance provided for persons seeking to be admitted as barristers only to register as students at law instead of serving articles of clerkship. The present ordinance makes no provision for persons to register as students at law. All applicants not previously admitted must serve articles of clerkship or complete a prescribed course of legal education.
Having indicated the differences between this ordinance and the one that was rejected by the Senate last year, 1 will now state what the new ordinance does. This ordinance provides as follows: Firstly, that the Law Society of the Australian Capital Territory shall be incorporated by the ordinance: secondly, that that Law Society should be open for membership to any person holding a current practising certificate; thirdly, that the society should be responsible for issuing practising certificates to persons practising as solicitors; fourthly, that the Society should conduct a statutory interest account for the investment of interest bearing deposit of a proportion of the trust moneys of solicitors; fifthly, that the Law Society should maintain the fidelity fund provided under Part IX; sixthly, that the Law Society be entitled, though not exclusively, to object to an application for admission by any person to be enrolled as a barrister and solicitor; and seventhly, that the Law Society be entitled, though not exclusively, to make a complaint to the Disciplinary Board or an application to the court regarding the professional conduct of a practitioner.
So the ordinance gives recognition and primacy to the Law Society and it gives it the exclusive authority to administer those things that pertain peculiarly to the solicitor’s side of the profession. It also gives an authority and recognition to the Law Society on a basis of the same character as the
Bar Association as an authority entitled to object to the admission of persons who should not be admitted or as an authority to prefer complaints of irregularities or unprofessional conduct to the Disciplinary Board or to the Court. I would have thought that that system would recommend itself to those who were earnestly seeking the constitution of the profession on a basis on which it could hold the confidence of the public. Every member who seeks the right to practise law in this Territory under this ordinance will be entitled to practise as a barrister or a solicitor or both, according to his own judgment. As a matter of law he can go into either or both fields. I submit that that gives the legal qualification which is desirable if one wants to constitute a profession which in law is undivided. But as Senator Murphy’s speech recognised before lunch, when this profession grows in great numbers to serve the national capital with all the concentration of commerce which will develop and the courts which will be established, particularly after the High Court is established in Canberra, it would be unthinkable that the people on the roll of the Supreme Court here would not wish to specialise and to have specially recognised groups.
People who come to Canberra to practise will be either persons of good fame and character who already have an entitlement to practise in the States or they will have to be admitted here as barristers and solicitors. As the profession develops it will be greatly to its interest if some of the members specialise in company law, others in advocacy in the criminal field, others in the common law field and others in the commercial field. It is only insofar as this ordinance recognises the development of the profession in that degree that any objection has been taken to it. I submit that if Senator Murphy’s statements before lunch are examined it will be found that he has committed himself to a view in which groups ought to be given some recognition. As I pointed out the only effect of the present ordinance is that if admitted members of the profession voluntarily associate as groups they are given recognition insofar as they are a Bar Association only in 2 respects. Members of the Association can offer an objection to the admission of a new member or they may prefer a complaint against an existing member and ask the court to deprive that existing member of his right of legal practice. The Leader of the Opposition (Senator Murphy) referred to barristers before lunch. As I understood him he said that they should have the right to enter into partnership with a solicitor. He said that this ordinance precluded that position.
– No, I did not say that.
– It may bc that he said that, not this ordinance, but the rules of the present Bar Association precluded a member of that Association from entering into a partnership with a solicitor. I want to clear that position up. There is nothing in this ordinance which says that if Smith is practising as a barrister he may not at the same time be a partner with a person by the name of Brown who practises as a solicitor. There is nothing contained in this ordinance to preclude full enjoyment of partnership between a barrister and a solicitor. I understand Senator Murphy was saying that under the rules of the Bar Association as presently expressed a member who joins that Bar Association undertakes that he will not enter into partnership in the solicitor’s branch of the profession. But that is entirely a matter for the rules of the Bar Association. There is nothing in this ordinance which requires any action in that respect one way or the other.
The only other thing I wish to say is with regard to the Disciplinary Board. We all know that over the last 20 years there has developed with great efficacy in the legal profession disciplinary boards which are complementary to the courts. These boards administer disciplinary jurisdiction to ensure proper conduct within the profession. I want to emphasise that those members of the Bar Association who seek to practise as barristers only are just as amenable to the jurisdiction of the Disciplinary Board under this ordinance as are solicitors. The same Board administers justice to ensure proper discipline and proper conduct within the profession whether one practices as a barrister, or a solicitor and whether or not one is a member of a firm and one member of the firm is actually practising as an advocate and the other member is practising as a solicitor. In the vital province where one gets the influences which make one undivided profession one has the same tribunal operating over every member of the profession for the purpose of disciplinary conduct, and that is the Board or the Court. The Court is constituted by 3 judges. The ordinance having made provision for one type of admission only and having constituted a tribunal which has jurisdiction over every member of the profession in whatever field he might practise or specialise has established the legal constitution of an undivided profession.
– What is to prevent the growth of the system which we have in Victoria?
– There is nothing to prevent that. There is nothing to prevent 20 or 200 of the profession - if we can look a century hence - from saying: ‘We wish to emphasise certain facets of court practice. We are specialists in court procedure. We are going to advocate court procedural requirements. We are going to safeguard the courts from an undue preclusion of the public getting into them by reason of fees becoming exorbitant.’ There is nothing to prevent any group of practitioners voluntarily associating for the purpose of the advancement of their own specialty. But when they or their sons come before the Court for admission or before the Disciplinary Board and there is any question of whether they are practising with propriety or not they are all members of the one undivided profession. In that respect I submit that the ordinance of the Attorney-General (Mr Hughes) is the one which is desirable in the public interest to create a profession of legal practitioners in whom the public should have confidence. I trust the Senate will see the degree to which the Attorney-General accepts the underlying thought of the Senate’s disapproval of last year’s ordinance. I hope the Senate will approve this ordinance and reject the motion for disallowance.
– I rise in support of what the Minister for Works (Senator Wright) who in this chamber represents the AttorneyGeneral (Mr Hughes) has said and to urge the Senate not to carry the motion for disallowance of this ordinance. T suspect that underlying what Senator Murphy has said is a belief that a divided profession can be prevented simply by legislating to that effect. I do not believe it can be. I think the experience of one State, where an effort has been made, amply demonstrates that. I propose to refer shortly to the Victorian experience. At this point I simply indicate that in Victoria in the 1890s the intention was that there should be’ one profession and that the separate Bar then existing in Victoria should be abolished, lt was attempted to do that by legislation. In less than 10 years the group of people who had practised as barristers and who’ desired to continue to practise as barristers were in practice as barristers and they constituted a de facto bar. I think it is important to note that barristers can exist as a separate group, firstly, if there are people who want to concentrate their talents in practice of that description and, secondly, if there are solicitors who are prepared to brief them.
Much has been said about the character of the ordinance which was promulgated in 1969 and subsequently disallowed by the Senate. That ordinance provided for the admission of persons and of practitioners from outside the Australian Capital Territory in three separate and distinct categories. As the Minister said, a person could be admitted as a barrister, a solicitor, or a barrister and solicitor. If he were admitted in one of those three categories, that was the character with which his practice thereafter in the Territory was concerned.
– By law.
– As the Minister reminds me, it was so determined by law - by the provisions of that ordinance - and there were obstacles and difficulties which prevented a person moving from one branch of the profession to another. He could do it, but it would take time. It was argued that the ordinance which was promulgated in 1969 was unfortunate to the extent that it purported to give to practitioners from outside the Territory’ a right to be admitted either as a barrister or as a solicitor, lt may well be that that situation was outside the scope of the provisions of section 55d of the Judiciary Act. I think it is fair to say that the reason why the Senate disallowed the 1969 ordinance was that senators objected, with different emphases and different nuances, to a. provision which allowed three different forms of admission.
This new ordinance acknowledges the Senate’s objections. I think the Minister was entirely accurate in saying that the views of the Senate, as expressed in 1969, have been acknowledged in the form of ordinance which is now before the Senate. The new ordinance provides for the admission of all persons and practitioners claiming to be admitted as barristers and solicitors. The ordinance contains specific provision for the categories of persons or practitioners seeking admission. The existing Territory practitioners - those who are here now and have been here for some time - are entitled to apply for admission to practise if they are residents of the Australian Capital Territory or of Queanbeyan, and it is provided that the court shall admit them to practise as a barrister and solicitor of the court. That provision is contained in section 11 of the ordinance. Secondly, persons whose names are on the roll as barristers of the High Court or as barristers or solicitors or legal practitioners of a State or another Territory and who are of good fame and character may apply to be admitted to practise in the Australian Capital Territory. If they do, the court shall admit such a person to practise as a barrister and solicitor of the court.
The Ordinance has two other provisions. One is that British subjects who are admitted to practise as legal practitioners in England, Scotland, Northern Ireland and New Zealand, who are of good fame and character and who, on application for admission, are entitled to be admitted as barristers and solicitors. The ordinance also provides for admission to practise as a barrister and solicitor of persons who have the prescribed educational qualifications, which are set out in the ordinance, who are British subjects and who have rendered service under articles of clerkship or who have undertaken an appropriate course of legal education. That last form of admission is highly important because it acknowledges and permits admission in the Territory of persons who graduate through the law schools of the Territory or other selves in their first practice in the Territory. The ordinance further provides that there shall be a roll known as the Roll of Barristers and Solicitors and that no person is entitled to practise until he has signed the Roll of Barristers and Solicitors.
These provisions are, I think, long overdue. They lay the basis upon which any society or any legal practice in the Terri tory is to be sustained. I think it is appropriate that, as soon as it can be done, the affairs of the legal profession should be put on a proper statutory basis. The effect of the ordinance is to ensure that there shall be only one form of admission in the Territory. That form of admission shall be as a barrister and solicitor. The ordinance provides that a person whose name is on -the Roll of Barristers and Solicitors has the right of audience in any court- of the Territory and is entitled to practise as a barrister and solicitor, as a barrister, or as a solicitor. This means that, after admission, a person may choose for himself whether he will practise as an amalgam barrister and solicitor, as a solicitor in the traditional sense doing the things which the Minister, has detailed, or as a barrister in the traditional sense, engaging in trial work, court work, advising in chambers and the drawing of pleadings and documents, but in each case as briefed by a solicitor. The position will be that a person may move from any one of those categories to another category and no impediment will be imposed by law which would prevent him from so doing. This position is analagous to the position which exists in Victoria, Western Australia and South Australia. It is different from the position which exists in New South Wales and Queensland.
– In none of those States is a separate Bar association recognised in the statutes which govern the legal profession.
– Adverting to what Senator Rae said, I cannot speak of the position in Tasmania, South Australia or Western Australia, but certainly that is not wholly the position in Victoria. In Victoria the Legal Profession Practice Act does not acknowledge the existence of the Bar Association, but other legislative measures do recognise its existence because those measures provide that the Bar Association shall appoint representatives, for example, to the Legal Aid Committee which supervises the provision of legal aid in civil cases in Victoria and of which the voluntary work of the Bar is an essential part. In my opinion, the ordinance covers the specific areas of objection which 1 expressed to the 1969 ordinance. The provision for admission as a barrister and solicitor permits a basts of reciprocity which I hope will be utilised in those
States which have similar forms of admission. I adhere to what I said in the debate on the 1969 ordinance. As far as possible, there should be an Australia-wide profession, litigants should have unrestricted access to the best legal brains and advocacy which is available and that entitlement should not be limited by State boundaries or by provisions which law societies, law associations or Bar associations might impose within that State. 1 reaffirm the view which I then expressed - that there ought to be reproduced in the statutes of the other States a provision which is contained in section 105 of the Legal Profession Practice Act of Victoria. That section reads:
Any person now or hereafter Only admitted and at the time of his application entitled to practise as an attorney, solicitor or barrister of the Supreme Court of any State of the Commonwealth of Australia shall on proof being made of such admission be entitled to be admitted by the Supreme Court of Victoria to practice as a barrister and solicitor in accordance with the rules made or to be made by the Council of Legal Education.
I welcome this ordinance because I view clause 12 of it as substantively corresponding with section 105 of the Legal Profession Practice Act of Victoria. Indeed, in one sense it is less restrictive than the Victorian provision because it does not require compliance with, as is the case in Victoria, rules which may be made by the Council of Legal Education. I hope that the situation will develop whereby admission to practice in a Stale or Territory will in itself automatically entitle one to practise in another State or Territory. I believe that this is the first essential step towards developing what I would regard as an Australia-wide profession. Because T look to an Australia-wide profession in which litigants can have available to them at any place in Australia the services of the practitioners whom they favour and whose talents they want to employ is not to say that I support the concept of an undivided profession.
– Does the honourable senator not support that concept?
– [ must confess that I do not support the broad proposition which has been put forward by Senator Murphy. I think there are good reasons why there ought to be specialisation by those who concentrate their talents and confine their experience to advocacy in the court and the special activity which is a barrister’s role. Equally 1 feel that those who fulfil the life of a solicitor are, with the obligations they have and the techniques they employ, better solicitors because of the concentration which they develop in their field of employment. 1 suppose I am speaking from my own experience in these fields, but I would regret the disappearance from the scene of the barrister - the person who is trained in court work - because it would mean that litigants would be less well served and, indeed, the judiciary, which has always been drawn from the Bar in Australia and in British countries, would be the less well equipped to maintain on the bench the qualities which a barrister seeks to develop in the course of his practice.
– I think we would all want to see specialised advocates practising. I do not think that anyone is contesting that.
– ( am grateful to Senator Murphy for saying that. As an advocate of considerable distinction himself it is unlikely that he would wish to see the opportunity denied to other persons to train and to develop skills in the way he has. On the other hand, I sense that implicit in what Senator Murphy has been arguing is the ultimate situation which he, by his interjection, denies he would like to see occur.
The ordinance clearly provides for one form of admission but it does not prevent, nor should it prevent, those who have been admitted from exercising their legal equipment and talents as they consider best. The division between barristers practising at the Bar and solicitors practising as such is not created by this ordinance. It arises because individual practitioners practise in this way. So long as there are people who are practitioners in the law and so long as there are people who want to become practitioners in the law they will employ their talents in the way in which litigants who want to hire their services are prepared to employ them.
The position in Queensland and New South Wales is one where the profession’s division is aided and perpetuated by the legal admission requirements. The qualifications are different, the training is different and the length of time taken up with study is different. But in the other States, and under the scheme provided by this ordinance, the training is the same, the qualifications and experience are identical and there is one admission. However, after the admission has taken place the practitioners may divide themselves as they please and as ought to be the individual right of those who act as barristers, those who act as solicitors and the group, normally not numerically strong, which practises as amalgams of barristers and solicitors.
I think that the difficulty of endeavouring to maintain an undivided profession by legislation has been illustrated in more recent times by the experience in Western Australia, South Australia and Tasmania. In those States until quite recently no barristers held themselves out as simply practising in the courts. I should make the exception that 1 think there were one or two in Tasmania who did confine their activities in that way over a long period of time. However, generally speaking, only barristers and solicitors in those States have been performing the work which is customary to barristers and solicitors and there has not been a separate Bar. In the last 5 or 6 years a separate Bar has developed in each of those States because of the desire on the part of some practitioners to engage only in the type of work for which they believed themselves to be suited and for which there was a need. It would appear from what Senator Rae has indicated to me that that is not so in Tasmania and I accept what he says, but it is certainly the position in the other 2 States. These people can only exist as practitioners in a separate Bar doing exclusively barrister’s work if the solicitors are prepared to brief them. Not every lawyer considers himself competent to engage in court work. Some welcome the opportunity to have a barrister prepare and carry through the litigation. Equally, not every lawyer enjoys the tedium of conveyancing, probate or any of the other meticulous activities comprising the traditional activities of a solicitor.
I said before that I propose to examine the position which arose in Victoria where the same intent as is expressed in Senator Murphy’s proposition today was sought to be achieved. An effort was made 80 years ago in Victoria to abandon the division between the 2 groups, but lt failed. In my opinion any such attempt will always fail until the appearance of practitioners themselves before the courts is banned. I have had recourse to a book by the late Sir Arthur Dean, who was for many years a justice of the Supreme Court of Victoria. After his retirement, he wrote a book on the history of the Bar. Indeed, it is on the history of the legal profession in Victoria. The book was published under the title of A Multitude of Counsellors’. He referred in his book to the efforts which were made in the 1890s to divide the profession and the failure of these efforts. Sir Arthur Dean drew attention to the fact that the Victorian Parliament passed the Legal Profession Practice Act in 1891, which was designed to abolish the position of barrister, and said: lt seems to have been supposed that once the Act was passed there would no longer be barristers and there would no longer be solicitors. Every practitioner alike would bo a barrister and. solicitor ami would practice in both capacities; every barrister would leave the Bar and join a solicitors’ firm or start one of his own, and see clients, draw wills., do probate business and conveyancing business and appear in court, as his practice required. But owing to the ingenuity, resource and the will of the Bar to survive the practical result was nil.
I feel that involved in what Senator Murphy said today is the situation where all practitioners will be barristers and solicitors and each practitioner will be a member of a firm unless he wants to be a practitioner on his own account. There would be within the firm some who would do court work and others who would do solicitor’s work. Occasionally a practitioner would do his own court work and solicitor’s work; or if he could not do that he would call in a barrister to whom he could refer. That is the concept as I understand it of an undivided profession which Senator Murphy is urging. I believe that has happened in Victoria, and has also recently happened in Tasmania, South Australia and Western Australia. lt is a futile attempt. So long as there are legal practitioners they will divide according to the speciality of their talentsThey will divide according to the way in which they desire to carry on their practices. I think it is the right of any legal practitioner to decide whether he wants to be a barrister or a solicitor. It ought to be a right which a prospective litigant would regard as important, and he should be able to say: ‘Well, I want to appear for me in court a person who is practising in the courts daily and whose advocacy I respect* Unless some such right is available to a litigant he will not be as well served as he would be where there is in practice a divided profession.
After the Act was passed in Victoria, what was its. effect? A royal commission on law reform was appointed 6 or 7 years after the Legal Profession and Practice Act divided the profession, which reported on the outcome of the division. Sir Arthur Dean wrote:
All that the report had to say was that the effect of the Act upon costs had been very disappointing, and that better advocates and better attorneys were produced by the separation of the t branches of the profession.
I think that concept is true today. By 1903 in Victoria a separate bar was once more established. I repeat that this ordinance does not divide the profession. It has not that intention. Indeed, its purport is the opposite. Any attempt to divide the profession would be a denial of the right of freedom of choice which a legal practitioner has in how he will practise as a practitioner. This ordinance recognises the realities of an existing situation. Recognition of the Bar Association by expressed reference to it in a few places in the ordinance is no more than an acknowledgment that it exists and ought to have some rights, duties and standing. In the nature of things it has little to do except manage, control and act on behalf of members of the bar. It has few duties cast upon it by the ordinance, but it is realistic to accord it a place in the ordinance and to specify the things that it must do. It is also realistic to give to a professional group the right of a disciplinary body to examine the conduct of one of its members.
In Victoria there is no reference to the bar in the Legal Profession and Practice Act. As I have said, there is reference to it in other Acts. This creates a problem because in Victoria disciplinary proceedings may be taken against a barrister, and the procedure is conducted before a disciplinary committee established under the Legal Profession and Practice Act. There is no provision for barrister representation on the committee, but a long-standing arrangement- between barristers and solicitors in their governing bodies suggests that if a barrister is a person charged before a committee, arrangements will be made for a part barrister membership of the committee. This is unwieldy. Possibly concern about it is undue because there has never been an occasion when recourse has had to be made to the arrangement, or when any barrister practising as such has had to appear before the disciplinary committee.
However, it would appear preferable to have a disciplinary board of permanent appointees, as the ordinance provides for the Australian Capital Territory, drawn from both ranks of the profession. It must be acknowledged that the real function, mode of conduct and activity of a barrister are vastly different from those of a solicitor. A barrister owes a particular obligation to a court in a way that a solicitor does not. A barrister has interests separate and distinct from the interests of a solid1 tor. A barrister’s domestic rules have no relevance for a solicitor. In that sense I think it is inevitable that if barristers group together and form a separate bar they will want their own institution and rules.
I have taken time to discuss this matter because in my judgment it is vital that when an ordinance is established laying down the rules under which a profession is to be incorporated and to act within a geographical area, the lines should be so drawn as will permit development which is in the interests not only of those people who comprise the profession but also of those who are served by it. I hold very firmly to the view that the community is best served by having an opportunity of access to barristers if the people want done the work which barristers can do; or access to solicitors when they need the work which solicitors can do. It is unreal and unworkable to seek to establish an undivided profession when so much in their history and nature indicate that the best services the legal profession can provide are achieved from a divided profession. I hope that the Senate will reject the motion for the disallowance of the ordinance.
– This is the second occasion on which this matter, although substantially in a different form, has been before the Senate, lt poses in a sense the same difficulty to individual members of the legal profession who have participated here as H did previously. Honourable senators who have participated in the main come from different States and from professions organised on no common basis. We are considering a proposal to organise the profession in the Australian Capital Territory, so far as I can see, in a situation which will not reflect identically any of the situations as they exist in any of the States. Therefore it is only natural that our predispositions, as we come to a particular State, would be by virtue of previous sentimental attachments or by the acquisition of personal and professional experience to favour an emphasis on a system that to some extent reflects our own, as against a system that would represent a departure or a major departure from it. That does pose some difficulty in considering this matter.
The approach I presented on behalf of my Party on the last occasion, although naturally it may have reflected my own predisposition as one who would naturally be consulted by my Party in this field, was that we favour the amalgam in the legal profession not only as a matter of desirability but almost as recognition of what I consider to be the ultimate inevitability of the professional practice in Australia. I think the amalgam ultimately will take over the divided bars. Irrespective of whether at the moment separate bars are operating where an amalgam does exist - a separation that exists de facto - I could not be confident that such separation would continue indefinitely. I particularly respect Senator Greenwood’s comments and his references to the history of the Victorian bar made by the former Mr Justice Dean. Our attitude on this matter is coloured by the fact that if this process is to be developed we must accept it in that way.
At present there is in Canberra traditionally and by establishment an amalgam which has operated to the satisfaction of members of the profession here, although without any complete formalisation which has been found desirable and has now became urgently necessary. We are faced then with the position, if this ordinance is to be rejected, of an attempt to impose upon a situation something which by its establishment and nature has not operated in that way. I agree with Senator Greenwood that attempts formally to impose a situation by law in a conventional and traditional practice have not succeeded. Actually, the development of the practice of both benches of the profession is traditional and conventional. As far as I can see, with some exceptions, the imposition of formalism on it has mostly been the formal recognition of a de facto conventional and traditional situation. Where an attempt has been made to interfere with that traditional and conventional situation it has, as a matter of experience, not succeeded because - to use Senator Greenwood’s expression - by ingenuity it has been able to be circumvented by the desire of one branch of the profession to maintain its independent existence and continuity.
In those circumstances, if we are to disallow this Ordinance we are going to attempt to cross the process of history and to impose on the profession in the Australian Capital Territory something which, to my mind, would cut across its present experience. While there is the amalgam, there has developed here a certain element within the amalgam that is practising separately as counsel in these jurisdictions. We must accept that as part of the traditional and conventional development of the profession in this place just as it has developed in other ways in other places. The form of the ordinance as now drafted is an attempt to formalise the present conventional and developed position of the profession here. The former ordinance, of course, was one which was going to truncate completely and cut across that traditional situation. Quite apart from the fact that there were various views held on the amalgam as against separate practice at the Bar, there were those who thought that there should not be this major and formal disturbance of the practice here.
Accepting the fact that the small de facto separation here is nevertheless operating within the amalgam, this ordinance appears to mc, in its present form replacing the former ordinance which was rejected, to do 2 things. It recognises the overall traditional position of practice here. It does, by the recognition of a separate Bar Association, recognise that there is a position here where some members within the amalgam are operating separately. If we were to disallow this ordinance because of our objection to the existence of a Bar Association, we would be intending to impose upon an existing situation a formal requirement that would rather contradict the success of what has happened in similar situations with similar practices in other parts of Australia. I think that would be undesirable and probably would not succeed.
The recognition of the Bar Association here really is a minimal recognition. It gives the Association very limited and circumscribed powers. The Association is a voluntary organisation. It has recognition in the right of audience on matters going to admission to the Bar and it has the right of audience and objection in the case of disciplinary matters where a complaint is laid on behalf of the Association. After all, while there is a separate Bar practising here in fact - I think all counsel who have practised in the separated profession or even the amalgam would agree - there are disciplines operating, and desirably so, within the Bar as such. I do not mean disciplines that are going to be exercised here by the common disciplinary body. I mean disciplines of practice and conduct that are peculiar to counsel and can most effectively be operated by counsel applying those disciplines to their own members. After all, the general area of discipline under the proposed ordinance is vested in a common disciplinary body but the Bar Association, if extant and on complaint from that body, is able to present its particular propositions to the common disciplinary body. That appears to me to be logical, reasonable and eminently satisfactory.
I cannot believe that in any way the mere existence of this body is going to impede, much less inhibit, the development of the process, which I think is more or less inevitable, by which ultimately the legal profession will fall into the general pattern of the amalgam. I do not think it is likely to do it. However I do think that while we have an existing situation - a de facto separation - it is equally appropriate and totally relevant that there should be available within that separation the appropriate bodies to enable that element of separation to function effectively, particularly in the interests of the clients. I think that such operation will be most likely to suc ceed if there is, for the purpose of the small independently practising Bar, an organisation peculiar to that body which will operate particularly in relation to the conduct of members of that body - conduct which, through it, can be brought before the statutory disciplinary body.
It is not easy for us who come from other Bars to try to direct our minds objectively to this matter because subconsciously we must be affected by our experience and association in different types of practice. For example, Senator Murphy comes as do I from a Bar which has separation by law. Senator Rae would be in a different position. Senator Greenwood would come from a profession that has a de facto separation and, I think, a de jure amalgam. Therefore there is this multiplicity of permutations and combinations of the profession. This is important because if my proposition is correct that ultimately we might witness a trend towards an amalgam which will operate nationally and be common, what happens in the Australian Capital Territory can be most significant. Ultimately, with the resort of the High Court of Australia to this place and a concentration of public attention on the operations of the law within this Territory, because it embraces the national capital, what happens here can very well stimulate what may happen uniformly throughout the nation.
Therefore, what we are doing today, or what we may be prevented from doing, is not to be considered purely in the local context. It is something of somewhat historic importance. I think honourable senators acknowledge this and approach the matter in this way. I am trying to give this matter a context beyond that of the geographical area of the Australian Capital Territory and, in its full implications, its significance as to the ultimate effect upon the developing pattern of the legal profession in Australia. It is a matter of extreme importance.
My Party considered this ordinance very carefully, as we considered the previous ordinance very carefully. We found we were unable to support the previous ordinance. However, we think that the present ordinance represents a particularly fair approach to the matter at this stage. If, in the ordinary trend of history, we should find that the separate Bar should start to shrink away and that the amalgam should start to extend and to embrace all practitioners, then inevitably with that there will be an erosion of the significance and the power and, ultimately, the very existence of voluntary organisations that will represent any separate branch of the profession. Therefore, recognising the present position of practice in the Australian Capital Territory and recognising that the trend ultimately maytake us into a completely different professional context here, if we propose to formalise the profession to reflect the present position there can be no substantial objection to the proposed ordinance.
Because the Senate has so much work before it, because this matter has been substantively considered in relation to the various areas of practice and the general principle of separation and amalgam, and because this brings us into a slightly different field with a slightly different emphasis in this ordinance, I do not think it is necessary to recapitulate much of the material discussed in the debate on the previous ordinance. The Democratic Labor Party resists the motion for the disallowance of this ordinance.
– I hold certain views which I will elaborate further but by way of a brief introduction I must say that substantially 1 agree with a large part of what every honourable senator has said during this debate.It is striking, I think, how little difference there is. I would identify the difference in this way: It is not a question of whether you have the opportunity for a separate Bar to exist, or whether you have an opportunity for a separate Bar within itself to regulate its members in some ways. The question is: Do you have 2 bodies or one body ultimately responsible for the government and good conduct of the profession insofar as it is necessary to provide for this? I see it in those terms. 1 see it in terms only of whether we recognise any voluntary association where we go to the length of prescribing, by legislation or by ordinance, a full set of rules to govern all of the practitioners. Do we then recognise sectional interests by giving the voluntary associations which represent those sectional interests some special standing in the legislation or the ordinance? To me there is only a question of degree in the difference between providing for the recognition of a Bar Association and later - if in 5 years we had a group of conveyancers, a group of tax experts or something like that who wanted to form an association - providing such an association with the same rights as those which have been described by Senator Wright this afternoon and referred to by others, namely, the right to object to the admission of any person.
It seems to me to be wrong that a body representing only a sectional interest should have the right to appear to object to the admission of a person who has no intention of ever being a member of that sectional interest organisation. 1 demonstrate whatI mean by saying that if a man or a woman is qualified for admission and wishes to practice as a solicitor only, with no intention of ever appearing in court - many people who graduate have that intention and never depart from it - we have a situation in which there is a Law Society whose function it is to represent the whole of the profession within the Australian Capital Territory, and a Bar Association which is representative of only a sectional interest - a small group. That small group may appear, may oppose and may make reference to the disciplinary committee if it alleges that there has been some misconduct. It would appear to me to be unfortunate to divide the profession in that way. We get back to the situation of a divided profession being continued in this ordinance, not in exactly the same way as was proposed in the last ordinance but not in so dissimilar a way as to be inconsequential.
– The objection to which you refer could be only on matters of good faith and character, and they may have something relatively the same.
– Why should they not do it through the one body which is set up by the ordinance to represent the whole profession? If the members who practise solely at the Bar wish to have a particular action taken, if they cannot persuade the Law Society which represents the whole body of the profession that that action should be taken. I am not sure that they should have any special standing before the court or disciplinary board for their interest, their objection or their complaint to be pursued. I see no reason why they, any more than any other possible association which represents the legal profession in the way it is to be set up or is to be continued in this Territory, should be specially provided for. I hasten to add that I am not to be taken as saying that there should not be a Bar Association. I am not to be taken as saying that there should not be people who practise solely as barristers. Insofar as Senator Murphy may or may not have indicated his preference for people to practise only as specialists, I say that they can go a little further if they wish and practise as specialists who separate themselves, by agreement, from other members of the amalgam. This gets back to the question of control and to the question of whether you can have only one body to govern what I believe to be one profession.
Last year I expressed a view which resulted in my not supporting the motion for the disallowance of the ordinance. My reasons were that I believed at that time that there were advantages to be gained if the trust account provisions, the fidelity fund provisions and a number of other provisions were introduced as soon as possible: that the disallowance would be unfortunate; and that the matters to which those who moved for the disallowance objected could be corrected at some time. The more that I have thought about it since, the more I believe that I was wrong and the more I think that if it is possible to divorce the 2 as Senator Murphy has suggested, then it would be preferable to take a risk on the extent to which the fidelity fund and the audit and trust account provisions applied and to try to maintain the position where there was only one governing body for the whole of the profession. Therefore, when the matter duly conies to a vote I shall vote for the disallowance of all of the sections that have been moved by Senator Murphy other than section 6. If section 6, which is the definitions section, is disallowed there is no hope, in my view, that the audit and trust provisions will work.
However, there is some reasonable hope and one has to look to other considerations before one finally makes up one’s mind. My mind has been made up finally by the contents of a document which is in these terms:
We the undersigned, being members of the Council of the Law Society of the Australian Capital Territory advise that, appreciating the disallowance of the Legal Practitioners Ordinance 1970 would mean that for a further period of at least 6 months there would be no Ordinance regulating the profession in the Territory, we oppose the introduction of the Legal Practitioners Ordinance 1970 as it in fact provides for a divided profession in the Territory. We support all necessary steps to oppose the introduction of the Legal Practitioners Ordinance 1970 including the disallowance pf the Ordinance in the Senate.
That document was signed by 10 of the 15 members of the Council of the Law Society. I am told that only 2 members refused to sign it. The others were not available, being away from the Australian Capital Territory at that time, so of 12 people available to sign it 10 did sign a document which . makes clear their opposition to this ordinance. I refer now to a statement which was prepared at one time on behalf of the Law Society of the Australian Capital Territory. That statement is contained in the annual report of the then President of the Society. It reads:
The hope expressed by me in my report for last year that we would then shortly have a new Ordinance was unfortunately not realised, but, as members know, an Ordinance was made on the 13th August 1970, to come into operation on a date to be fixed by the Minister by notice in the Gazette. When a draft of the Ordinance was sent to the Society for comments, the Council prepared and submitted to the Attorney-General a considerable number of suggestions and 1. am pleased to say that many of these have been adopted. However, it still remains a matter for regret that, whilst the Ordinance provides for a single form of admission to practice, nevertheless the basic structure nf the profession, as contemplated by the Ordinance, is that of a divided profession. In particular, it is regrettable that the Ordinance recognises two professional bodies as representing the profession in the Territory. In a profession as small as ours, where the heavy burden of organising and directing the affairs of the legal profession in the Territory has to be borne by all too few persons, I believe that the best interests of the profession are served by all practitioners lending their weight to the work of the Society. As you know, this view is shared by a number of members of the Bar Association, some of whom have served on the Council of the Society, and it is hoped that this situation wilt continue. There can be no doubt that the Society is the only body which truly represents and speaks for the profession in the Territory and I believe it deserves the support and co-operation of all lawyers in the Territory, no matter in what area they may follow their profession. To date the Society has been fortunate indeed in having that support and it has gained strength from tha active part taken in its affairs by members of the Faculty of
Law, Government lawyers and Service lawyers, all of whom have worked earnestly with practitioners to develop and improve the practice of law in the Territory. The task of creating and building up a strong legal profession in the Territory is a long and arduous one, and the cause will suffer greatly if the new Ordinance should be interpreted by anyone as involving a withdrawal of support for the Society by any section of the profession.
That report was written by a barrister; one who was practising not as a barrister and solicitor but as- a barrister and who, nevertheless, was prepared to be a member of the Law Society, to serve on the Council of that Society and even to take on the onerous task of being its president, lt shows that, insofar as the attitude of the Bar Association in this Territory is in favour of the ordinance, that attitude certainly is not supported by all its members. J understand that previously, in relation to a prior ordinance, a unanimous resolution was passed by the members of the Law Society in special meeting, and in that resolution they condemned any ordinance that would introduce a divided profession in the ACT. That is the summary of the meaning of the morion which was given to me by a member of the Council of the Society.
I point to one other matter that has been raised by the Law Society. This appeared in the ‘Canberra Times’ of 20th May 1970, where it was reported as follows:
Another Law Society criticism of the ordinance is that, while recognising the Bar Association, it gives no directions on who may be its members, their qualifications and their rules.
This seems to me to be another unfortunate matter. The situation is that the Law Society is given equal status with the Bar Association for the purposes of some of the basic matters of control of the profession - in appearing before the disciplinary board and taking action in relation to admissions and the sanctions to be imposed on practitioners who are guilty of misconduct. The Law Society and its rules are governed by the ordinance. But the Bar Association is not even defined by the ordinance as being anything other than the Bar Association. No rules by which it is bound are provided for in the ordinance. There is no such provision. No provision in the ordinance goes any further than simply saying that the Bar Association is the Bar Association. lt may be that at some time in the future that Bar Association will have rules which will make quite impossible the continued co-existence of the 2 bodies in the proper functioning of these provisions in relation to the disciplinary board and the admission of practitioners. That may be - one would hope that it would be - farfetched. But. one knows that there have been occasions on which differences have arisen between separated members of a profession, be it the law or any of the other professions, and that such differences can lead to difficult situations which may make people act in an unfortunate way. I would not like to see the provision that we are debating this afternoon give rise to an opportunity for further and greater divisions within the profession to take place and to be developed.
I do not know what the attitude of Senator Murphy and his Party will be to section 6. As I mentioned before, 1 would not support its disallowance simply in the hope that, whilst leaving that section out, the remainder of the provisions which are not or may not be disallowed will have some effect. In summing up I do not cover again all the ground that is common ground in relation to amalgam professions and all the other matters that have been commented on: i simply say that, in the interests of the overwhelming majority of the legal profession of the ACT and in pursuance of something in which I believe, I intend to vote for the disallowance of these provisions.
I would not vote for their disallowance simply because f thought that particular way; i would nol vote for their disallowance simply because the overwhelming majority thought that way, although both of those are convincing arguments. But when one can sec that the 2 views coincide and that the public interest is not being adversely affected in any way - in fact, although 1 do not intend to develop this argument, it may very well be that the public interest is being enhanced by a better organised profession and that a better organised profession may very well be the profession that suits the majority of the members, which is the normal principle that one would expect to apply- one is in the position where one should vote for the disallowance of the relevant provisions, and f propose to do so on this occasion.
– in reply - If there is no other speaker - there appears to be none - I will indicate my attitude on the matter. First of all, I think there was some misconception and perhaps some misunderstanding between Senator Wright and myself of what I said about the Bar Association. I was simply indicating that I understood that, not only as a matter of the effect of the ordinance but also as a matter of the constitution of the Bar Association and further, and more importantly than either of those matters, as a matter of attitude of the members of the Bar Association, there would be no objection to its members becoming partners or to the admission to the Association of persons in partnership. I think it was Senator Wright who suggested that the matter may go even further than that and that there would be no objection to the admission to the Bar Association of persons practising as barristers themselves but being in partnership with somebody practising as a solicitor. I am not quite sure what the position is in regard to that last part.
– I was speaking only as to the operation of the ordinance.
– I am not quite sure what the position is in regard to that last part, but I understand the earlier parts to be correct. I will not go over all that has been said, except to suggest that it would be better if at some stage we indicated what we wanted and drafted an ordinance which really set out what we all wanted. I suggest that there would not be a great deal of difference of opinion in this chamber. I do not think there would be a great deal of difference of opinion between the view of the legal profession in the Territory and that of this chamber.
However, some distinct differences of opinion emerge. There is no doubt that the stand of persons such as Senator Greenwood is that they want a separated profession. They want members of the profession split. Senator Greenwood wants them split. He is a Victorian and he wants the Victorian setup here. That is what I, for one, am concerned about. Here is a provision which will allow a growth of the Victorian system, which I do not think is any longer in the interests of the public of Australia or of the profession Leaving that aside, I believe that there is a fair measure of agreement. The important point is how we carry out what we want. As no-one else has stood up to speak about sections 51 and 53 - they are the ones not concerned with the divided profession - I propose to accept the assurance given by the Minister for Works (Senator Wright) on behalf of the Attorney-General (Mr Hughes). I ask for leave to amend the motion in that respect.
The ACTING DEPUTY PRESIDENT (Senator Wood) - Is leave granted? There being no objection, leave is granted.
– Having listened to what Senator Rae has said, it seems to me that probably the sensible course would be to withdraw from the motion section 6, which is the one he mentioned. I see that the Minister agrees with this proposition. Although the aim of including section 6 was to deal with the provision in relation to the Bar Association, in fact, as it may be in Senator Rae’s mind, the section also dennes other things, such as the Law Society.
– And the fidelity fund.
– Yes. Whichever way the decision is made here what is intended will be crystal clear and the appropriate steps can be taken to clear the matter up accordingly. Consequently, I seek leave to withdraw section 6 from the motion.
The ACTING DEPUTY PRESIDENT (Senator Wood) - Is leave granted? There being no objection, leave is granted.
– It becomes a matter now as to whether in substance we should have a divided profession in the Australian Capital Territory or an undivided one, and whether steps ought then to be taken to provide properly for the special interests which have been mentioned. I think those steps should be taken. I do not think it is necessary to repeat that I find little real difference of opinion between the members of the profession here. No-one wants to prevent the profession from developing from the way which in general has been indicated here. For my own part, I do not want to see the Victorian situation arising here. I refer to Victoria only because that is a clear example of a law which says that a person shall be admitted as a barrister and solicitor, but then the situation develops in which there is a separation in fact. What we want rather is to have an undivided profession.
– Would you like to see Queensland, New South Wales and Victoria changed?
– I should think that all over Australia we will get an undivided profession.
– To be consistent you would have to include the other States.
– Yes, and I think this will happen in Australia. I am glad that Senator Byrne agrees when I say that this is what is wanted in Australia. We have to adapt ourselves to the needs of a modern society. The needs of the profession itself will bring this about. I understand that in the smaller States they begin with an amalgamation and then move into a separation. There is a stage beyond that where it becomes apparent that in the interests of the profession and in the interests of the public we need to get back to one profession with proper provision for the recognition of special interests, to have circumstances in which the kind of specialist, whom we all know and want, will be able to work well, surrounded by the kind of atmosphere, facilities and resources that he needs. I think that is what we should aim for and I think that is what will come about in Australia. I hope that by what we are dong here today we can serve to bring this about. With the deletion of section 6 from the motion there is no jeopardy to the useful provisions such as those relating to trust moneys, the fidelity fund, matters of record and so forth. The public interest is attended to. Therefore, I ask the Senate to support the motion.
That the motion for the disallowance of sections of the Australian Capital Territory Legal Practitioners Ordinance be agreed to.
The Senate divided. (The President- Senator Sir Alister McMullin)
Majority .. ..2
Question so resolved in the affirmative.
– I move:
This matter appears on the notice paper as a result of a report and a notice of motion from the Senate Standing Committee on Regulations and Ordinances. After negotiations with the Minister for Labour and National Service (Mr Snedden) the Regulations and Ordinances Committee decided by a majority decision that it should not proceed with the disallowance of the regulation but should leave it open for an individual to take the matter up. Those who opposed the decision of the Regulations and Ordinances Committee agreed that this matter should be discussed by the Senate. Therefore, I have moved for the disallowance of the ordinance. Firstly, I believe that this is something that could more properly be dealt with by substantive legislation. Secondly, it could offend against the conscientious beliefs of an individual. Thirdly, the Minister in exercising his discretion could prejudice a person whom he refers to a court as against a person he does not refer to a court
Various opinions and views have been expressed on this point in the Regulations and Ordinances Committee.I was not present at the meeting of the Committee when it decided to recommend moving for the disallowance of the regulation. While I agreed with the decision. I had in my own mind some entirely different opinions from those held by other members of the Committee. To traverse the question of this regulation, we must look at the National Service Act to see what it seeks to achieve. Under the Act there is an obligation on all 20-year-olds who are called up by the Minister to serve in the defence forces of Australia. Exemption from service is provided for in section 29a of the Act. It reads: (1.) A person whose conscientious beliefs do not allow him to engage in any form of military service is. so long as he holds those beliefs, exempt from liability to render service under this Act. (2.) A person whose conscientious beliefs do not allow him to engage in military duties of a combatant nature but allow him to engage in military duties of a non-combatant nature, shall not, so long as he holds those beliefs, be required to engage in duties of a combatant nature.
They are the 2 instances in which exemptions are permitted.If a person has conscientious beliefs he need not serve. Of course, he has to establish such conscientious beliefs. In section 29b the method of establishing a conscientious belief is set out. It provides: (1.) Where a question arises whether -
When a case is referred to the court, the court hears and decides it at such time as the question arises. I think this has some importance. The Act further provides in section 29d:
Where a person claims to be exempt, by virtue of sub-section (1.) of section twenty-nine a of this Act, fromliability to render service under this Act or to be a person to whom sub-section (2.) of that section applies, the burden of proving the claim rests on that person.
When a person claims to be exempt the onus of proof is on him. 1 do not know whether a claim is necessary under the Act itself. The court must hear the case and make a decision when the question arises. Of course, when the question arises the court must have some cognisance of the fact. However, the Act makes some provision whereby the person affected may make an application to the court to determine whether he has a conscientious belief. If the court found in his favour he would not have to serve. I cannot see anywhere under the provisions of the Act why it is not open to anyone in the community to come to the conclusion that a question has arisen and to refer the case to the court. If I see someone committing a breach of the traffic regulations I can refer the case to the court. If I prove the case against that person, be is dealt with and convicted and fined in the same manner as if the Crown had preferred the charge. The provisions of this Act allow the person who claims conscientious objection to make application to the court but it does not provide for anyone else to make such an application. I might say that the legal members on the Committee did not agree with that-
– I take a point of order. I submit that the honourable senator is not in order in referring to discussions had and opinions expressed in a committee of this Senate unless the committee has reported formally to the Senate. These are secret proceedings which are not available to the Senate unless reported.
– If I breached any code of ethics I did not intend to do so. I would say that technically a report has been submitted to the Senate from this Committee.
– It is only to that that we can look for information as to your deliberations.
– As I understand it, my submission does not find much support among the legal people on the Committee. The method of making the application to the court is laid down in the Act. If Parliament decides that no-one else can make the application to the court then such a provision should not be introduced by regulation. While the person who claims to have conscientious beliefs under the Act can make an application to the court regulation 32a seeks to extend that power to the Minister. It states: 32a. Where a question has arisen, whether as a result of an oral or written statement by a person or otherwise, whether:
This raises a vital question. At any time the individual has the right to apply to the court to acknowledge his conscientious standing. If he does not wish to exercise that right someone else can refer the matter to court for examination. Doing this could cut right across the conscientious belief of the individual who has a conscientious objection to court interference in his affairs. One can imagine that a person of a very close religious organisation who believes in associations of God and not associations of man does not want a court inquiring into whether he has a conscientious belief. This person is prepared to pay the penalty of his defiance of the Act and not have an examination of his conscientious beliefs. He is prepared to serve the 2-year gaol sentence. The Minister can override this person’s conscience and order an examination. To my mind that could well be a breach of the rights and privileges, of the individual. If an individual wants an inquiry into his conscientious beliefs he can make the application. The reason why he does not make the application is that he does not want the inquiry. But the Minister can go against the wishes of the individual. It could be against the conscientious beliefs of the individual to force an inquiry into the matter.
A report has been presented to the Senate from the Regulations and Ordinances Committee. The matter having been reported I take it I can go into the question of the Committee recommending the disallowance of the regulation. A person with a conscientious objection may not make an application. The regulation provides that if a question arises in the Minister’s mind the Minister may direct an examination and this permits the Minister to decide the question. The Minister may direct an examination into this person’s beliefs but not that one’s. The regulation gives a discretion to the Minister which could react in favour of someone and against someone else.
I think Senator Wood reported on behalf of the Committee today that after consideration of a letter from the Minister the Committee took the view that if the Minister does not refer a matter to the court the person involved suffers no breach of rights on that account. At all times under the Act an individual retains the right to make an application to go to court. This was the reason why Senator Wood reported that the Committee thought it should not proceed any further with the matter. The Committee worked on the basis that the regulations do not unduly make the rights and liberties of citizens dependent upon administrative rather than upon judicial decision. It was thought that it could not be claimed that by not applying this discretion it would unduly affect the rights and liberties of anyone in respect of whom the power to refer to court was not used. On that argument there is very little left to say unless we look at what has happened under the regulations. The regulations have been in force for some weeks. Already 2 cases have been heard under these regulations.
– Two references were made.
– Well, 2 references were made under the regulations. The Minister has referred 2 cases to court. Without knowing the full history we presume that in 2 cases questions have arisen which have been referred to court. One case was heard in Melbourne. It involved a 22-year-old lad named Carmichael of Charlotte Street, Newport. He appeared before Mr R. J. Kelly, S.M. We have to try to interpret what happened from the Press reports in the absence of anything else. Mr Carmichael was represented by Mr Peter Faris. When Mr Faris appeared in court he said that the hearing was not an application for exemption. The Press report of the statement by Mr Faris said:
We were invited here today because the case had been referred to the court by the Minister for Labour and National Service, Mr Snedden. We did not make an application to come,’ he said.
Mr Kelly ruled that the matter was a referral, not an application and asked Mr Nettlefold to lead evidence . . .
Mr Nettlefold represented the Minister
Mr Kelly said: ‘All I can do is hear what people tell me. If they do not tell me anything 1 cannot do anything. 1 cannot register or refuse to register. I order the matter to be struck out.’
Afterwards, in a statement Mr Carmichael said that the question of whether he had a conscientious belief which did not permit him to serve had not been resolved. It would seem that that is the basis upon which the regulation operates. If there is no application and no hearing the magistrate cannot decide the question and therefore he strikes the matter out as being unresolved.
Another case in Western Australia was reported in the ‘West Australian’ of 8th October. The magistrate was a Mr T. Ansell. The person concerned who was referred to the court was Gary James Cook who was not represented by counsel. Derek Henry Schapper, a second year university student, acted as his agent and read to the court a statement from Cook. It read:
I refuse to participate in this hearing just as 1 will refuse to comply with any procedure which is part of the conscription system - a system which directly contributes to the suffering of the Vietnamese people. This hearing is an attempt by the Government to avoid having to gaol me for 2 years.
The presence of a targe number of political prisoners in our gaols is apparently nol a pleasant prospect for our Government.
I have not applied for conscientious objector status and I do not wish to be classified as a conscientious objector within the terms of reference of the National Service Act.
Magistrate T. Ansell found that Cook did not hold conscientious beliefs that would not allow him to engage in military service. That finding by Ihe magistrate could prejudice Cook if at any time he wanted to exercise his right under the Act and apply for exemption because of his conscientious beliefs. Apparently he has had one court hearing. The question might arise as to whether it was a hearing. Obviously the magistrate was satisfied that he was complying with the Act and that Cook had had a hearing. The magistrate made a decision. Cook submitted to the court only an objection to the regulation, to conscrip tion and to” the Vietnamese war. He did not claim lo be a conscientious objector under the Act. He now has a decision against him that he is not a conscientious objector. If he is and if he did not want to apply for exemption, and if at some time he has a change of mind and applies for exemption because of the conscientious objection which he had prior to the hearing by the magistrate, his beliefs will not be easy to prove because there have been no changed circumstances since lnc decision was made. He will have to start on the basis either that the magistrate’s decision was wrong or that there were some reasons nol presented to the court on that occasion that could alter the decision. When Cook decides, if he does decide, to apply to the court he will face greater hardship and his application will involve greater prejudice than an application by an individual whose beliefs may not have been referred to a court by the Minister. This is where the discrimination has an effect of prejudicing an application.
A suggestion has been made that the magistrate in Western Australia could have been wrong. He arrived at a decision different to the one arrived at by the magistrate in Victoria. I do not know whether the cases were different, but from news reports they would appear to be the same. If the magistrate in Western Australia made an error, it could be that such an error could prejudice the applicant. It is true that there is some right of appeal, but surely the Authority which is responsible for creating the disadvantage to an individual should be the one to appeal to correct any injustice that may have been done. The regulations contain no suggestion that the Minister should appeal on such matters. If Cook seeks to apply for exemption because of conscientious objection, his application will be prejudiced by a decision of a court. Cook did not apply to have an inquiry by the court. The Minister applied, ft has had detrimental effects on Cook. Therefore, I believe the regulation should be disallowed.
I raise one other matter. If Magistrate Kelly’s opinion that the court cannot make a decision because no evidence is placed before it is correct, what is the position? The case has to be struck om. Anyone who is referred to a court can refuse to make a statement. If a person knows his rights and if he is seeking a benefit under this Act, he has the right to apply at any time for exemption. If Mr Kelly has given the correct interpretation of what should be done in such cases, the regulation can never be effective because there is no evidence as to the person’s conscientious beliefs. Without two parties there cannot be a hearing. The regulation is not capable of application. It could inflict some hardship on individuals. Therefore I submit that, for those reasons, the Senate should disallow the regulation.
– Senator Cavanagh has taken up this motion which asks that the Senate disallow regulation 32a introduced by Statutory Rule 1970, No. 116. In order to understand the regulation it is useful to remind ourselves that the National Service Act imposes a compulsory obligation of national service on certain persons. There is great contention about the continued operation of the Act, but while it is law it should prevail for the purposes of considering any regulations made under it. Under the Act one person who is exempt from the obligation of that compulsory service is a person whose conscientious beliefs do not allow him to engage in any form of military service. As long as he holds those beliefs he is exempt from liability to render service under the Act. The Act contains a similar provisions if he has conscientious beliefs that do not allow him to engage in military duties of a combatant nature but allow him to engage in military duties of a non-combatant nature. As long as he holds those beliefs he shall not be required to engage in duties of a combatant nature.
The Act provides that these beliefs may exist although they do not derive from any particular religious persuasion. Section 29b of the Act provides that where a question arises whether a person holds those beliefs, this question shall be heard and decided by a court of summary jurisdiction. The law has established the court as the tribunal to decide whether conscientious beliefs exist. To see the avenues of appeal, the Senate should look to section 29c, which provides for a review of a decision of any court and which provides that that review may be instituted either by the Minister or the person in relation to whom the question arose. The review is by way of rehearing and the decision of the court is final and conclusive. Section 29d of the National Service Act provides that where a person claims to be exempt by virtue of his conscientious objection the burden of proving the claim rests on the person concerned.
The manner in which such a question is put to the court is to be found in the regulations under the National Service Act. Regulation 31 provides that a person who claims that he holds the conscientious belief to which I have referred may make application for an order directing that he be registered as a person who is exempt from liability to render service under the Act or who is not required to engage in duties of a combatant nature. Because persons existed who were prepared to carry their conscientious objection so far that they would not even recognise the provisions of the Act by making application on their own behalf for exemption, who would not, when required by the court, put forward evidence of their conscientious objection and, as a result, were required by the Act to undergo 2 years imprisonment as an alternative to military service, the Minister has been given this authority under the regulations which Senator Cavanagh challenges.
Proposed new regulation 32a provides that where a question has arisen, as a result of an oral or written statement by a person or otherwise, as to whether a person should be exempted from military service because of his conscientious beliefs, and that person has not made an application under regulation 31 of the regulations under the National Service Act in relation to this question, the Minister may direct the Registrar to refer the said question to a competent court of summary jurisdiction for hearing and decision. Senator Cavanagh seems to have suggested, although he was not very clear, that if a provision of this nature is to be implemented it should not be by way of regulation. I point out that the parallel provision whereby a claimant may have the subject of his own application referred to the court is by regulation and it would be wholly inappropriate in the set-up of the Act to have this provision for ministerial reference of the question to the court provided otherwise than by regulation. Senator Cavanagh said that, for instance, any person could launch a prosecution for a traffic offence. This regulation is not analogous. The original regulation 31 and the amending regulation 32a simply provide that the applicant or the Minister may have the said question referred to the court. The matter which is being referred to the court is not a prosecution for an offence; it is a matter which gives rise to an exemption. Therefore it is a defence which is provided by the Act against prosecution.
The second proposition which Senator Cavanagh advanced is that each person has an individual right to apply. He said that for the Minister to take a supplementary right to refer the matter to the court may cut across the individual’s right to flout the Act. He said that a person may be prepared to pay the penalty and go to gaol. Senator Cavanagh has attempted to persuade us that it is an invasion of an individual’s right to conscientious objection for the Minister to initiate proceedings for a court to examine the individual’s conscientious beliefs. I should think that this would be the tallest order which could ever be propounded in any parliament.
Senator Cavanagh said that a person may be brought before a court against his wish. One of the cases to which he referred - that of Carmichael - illustrates that a defendant has an option not to appear before a court, or if he does, not to give evidence. In the Western Australian case the person concerned expressly disclaimed any wish to be classified as a conscientious objector. The whole purport and effect of proposed new regulation 32a is not to impose any obligation upon a conscientious objector; it is simply to afford him an opportunity to take the only course that the law provides to be taken, that of giving a court of law an opportunity to determine whether his case is one of conscientious objection. So I submit that the case which Senator Cavanagh has put about invasion of an individual’s right to hold a conscientious objection falls completely to the ground.
As I have pointed out, the regulation does not impose any obligation on the person concerned. He may wish not to appear before the court or, if he appears, he may wish not to give evidence before the court. In that event the reference by the Minister will have been fruitless. All it means ls that the person concerned has not availed himself of the opportunity given to him by the Minister to appear before the only tribunal whose decision is recognised by the law as being capable of determining whether he has a conscientious objection. In this regard a defendant is as free as the wind to refuse to avail himself of the opportunity which is made available to him by the Minister’s action.
Senator Cavanagh said that the use of the expression ‘may’ gives the Minister a discretion which is impermissible. Where part of the enforcement of an Act involves the prosecution for offences against the provisions of the Act, it has been the traditional duty and responsibility of the Minister who administers the Act to decide whom to prosecute and whom not to prosecute. This has been the traditional responsibility of those Ministers of the Crown who are charged with the duty of administering Acts of the Parliament. But this is not the case where, under the regulation challenged by Senator Cavanagh, the Minister proposes to take any compulsive action against the defendant, lt is not the case where the Minister is authorised to prosecute the defendant. The regulation which Senator Cavanagh impugns is one which gives the Minister authority to refer a defence 1o a court- die question of whether any conscientious beliefs exist The only effect of that is to give the defendant an opportunity to prove that he holds a conscientious belief and therefore would be exempt from service under the Act.
– Will the Minister comment on the Western Australian case?
– I am about to do that. Senator Cavanagh referred to the case of a defendant named Cook in Western Australia. Cook could have gone along and done what Carmichael did. He could have said: 1 do not wish to give evidence.’ He need not have gone along, but he did and by his agent in the court he said to the magistrate: T do not wish to be classified as a conscientious objector within the terms of reference of the National Service Act’ After he had said that, how was it possible for the magistrate to ignore the statement and to say that he was a person whose conscientious beliefs did not allow him to engage in any form of military service? By his statement he expressly disclaimed the exemption that the law provides.
– If I may interject, 1 point out that he said that he did not wish to be classified as an objector. He did not say: ‘I am not an objector.’ There seems to me to be a very considerable distinction between those 2 positions.
- Mr. Deputy President, you will have noticed how courteous I am to permit even that tendentiousness to be perpetrated on the chamber. I would have thought that there could have been nothing so ridiculous even in the muddled mind of the honourable senator. When a person attends a court and says that he does not wish to be classified as a conscientious objector within the terms of reference of the National Service Act, how can anybody then properly claim that that man is a person who holds conscientious beliefs that do not allow him to engage in any form of military service and that that opinion should be reached by a magistrate before whom he has made that express disclaimer? I find that hard to understand. Senator Cavanagh went on to advance the view that he would be bound by any decision made today by a magistrate.
– 1 said that any future application he made would be prejudiced by the decision.
– The position is that section 29a makes it quite clear that the state of a man’s conscientious beliefs may vary from time to time. When a man is before a court, the court decides whether he holds those conscientious beliefs. It is a travesty of the proceedings that we have made part of our tradition in this chamber for a motion of this type to be brought before us. The Minister has said that ample provision has been made in the original regulations for a person who claims before a magistrate exemption on the grounds of conscientious objection. But some people have been so misguided as to take their attitudes to the degree of repudiating the law of the land and of refusing to avail themselves of the procedure necessary to obtain a court’s decision. Rather than allow the Act to operate, perhaps by default of a person to have the question decided, the Minister is active to make a regulation so that where a person has not made application, the Minister may adopt the procedure of having the case referred to a court so that express opportunity for exemption is provided for people who may hold conscientious beliefs. A court can decide the question. If it is proved that he holds conscientious objection to military service, the court may exempt him from service. We are now seriously asked to consider that a regulation to that effect is improper in relation to the administration of the Act. I submit that the proposition is completely untenable. ‘.
– I support the motion moved by Senator Cavanagh. So far as is possible I shall refrain from commenting on any of the statements which have just been made by the Minister for Works (Senator Wright). The discussion which took place before the Regulations and Ordinances Committee was conducted without acrimony, despite the fact -that members hold strong opinions about the National Service Act. There was a considerable measure of give and take and some members of the Committee substantially changed their opinions.
– I rise to a point of order. I submit that the honourable senator is not in order in referring to the proceedings of any committee, except insofar as they have been reported to the Senate.
The DEPUTY PRESIDENT (Senator Bull) - The point of order is upheld.
– I would like to speak to the point of order. I was not referring to the proceedings in the sense that I was describing them. I was referring to the manner in which the proceedings were conducted. I submit that that is quite different from referring to the proceedings of the Committee. If I say that the Committee conducted itself in a manner in which there was give and take between all present, and that all displayed a reasonable attitude, I submit that that is not referring to the proceedings of the Committee within the terms of the standing order.
The DEPUTY PRESIDENT- Very well, but the honourable senator must understand that he is not allowed to refer’ to the proceedings before the Committee.
– I appreciate your ruling, Sir, I had no intention whatsoever of canvassing the discussions which took place before the Committee. 1 was merely referring to the manner in which the Committee discussed at considerable length a very complex matter. My concluding reference to Senator Wright is that it was not until we came into the chamber today that we found rudeness and abuse introduced into this very complex discussion. I think it would befit Senator Wright much better as a member of the legal profession and as a Minister-
– I rise to order. I find offensive the imputation of rudeness and abuse and I ask that it be withdrawn.
– I shall withdraw. I merely say that although Senator Wright may not regard his remarks as rudeness and abuse, when the members of the Committee made their various comments not one of them referred to people having muddled minds or used words such as ‘tendentiousness’, which have been used by Senator Wright. I will say again, without referring to the proceedings of the Committee, that comments such as those which have been made today by Senator Wright were not heard from anybody during the proceedings of the Committee. I will let it go at that and leave it to the imagination of honourable senators as to what sort of comments one could reasonably conclude that Senator Wright made.
This matter required the very close attention of the Committee because it contains some major principles which the Senate Regulations and Ordinances Committee needs to follow in order properly to exercise its function. I remind honourable senators that the Committee has a reputation for properly exercising its function. 1 believe that the purposes of the Committee in examining regulations and ordinances are, first, to see that there is no arbitrary exercise of discretion by the Executive - that undue discretionary powers are not given to it; secondly, to see that the rights and liberties of the subject are not unnecessarily interfered with; thirdly, that matters which should properly be dealt with by legislation are not included in regulations and ordinances; fourthly - I believe this is a very important point which does attract the attention of the Committee - that if there are circumstances where the Commit tee believes that any of these matters have arisen, they should be of sufficient substance to warrant a resolution from the Committee that the regulation or ordinance not be accepted by the Senate. It would need to be a matter of some substance. It may not, perhaps, fulfil all of the requirements to which I have referred but it would need to depart reasonably substantially from them before it would warrant action by the Committee in recommending that the regulation or ordinance be not accepted.
I shall not refer to the proceedings of the Committee but 1 should say that it has had to examine the existing provisions for persons who are or who claim to be conscientious objectors under the National Service Act. Prior to the bringing down of the regulation about which we are speaking this afternoon, the position has been that a person who believed that he held a conscientious objection of such a nature as to fall within the definition of a conscientious objection set out in our law is able to make application to a court to be recognised as a conscientious objector. Instances have occurred, or are believed to have occurred, of persons who could well have been found to be conscientious objectors had they made an application for classification as such and who, in addition to having a conscientious objection to military service, may also have had some form of objection to the National Service Act in particular. These persons, for whatever reasons, despite the fact that were they to have made an application to a court they would have been found by it to have been conscientious objectors, declined to make any such application.
Putting, as I think, the most favourable possible interpretation upon the intentions of the Government in introducing this regulation, it would appear that what the Government is attempting to do - whatever its motives may be - is to bring about a state of affairs whereby a person who does have a conscientious objection which would fall within the existing law, but who for some reason or other declines to make an application to the court, may be brought before the court. The court would then find that this person is a conscientious objector without his having made application to get into court. Although I can see some disadvantages in it, this clearly would have some advantages.
However, the regulation we are debating gives to the Minister the discretion to refer to the court certain instances where he has some sort of belief that a question of conscientious objection does arise. The first thing that may be said about this is that the Minister may refer any such case; the regulation does not say that he shall refer any such case. This seems to me. at any rate, to give to the Minister a rather undesirable discretionary power but 1 do noi intend to labour that point, f do see that there are arguments which can be produced as to why the word may should be placed in a regulation which deals with such a complex set of circumstances, rather than the word shall. Nonetheless it is still my opinion that the word shall should be used rather than the word may, and that there should not be this discretion.
It has been argued - I think with some justice - that if a person does not wish to exercise the present rights he has under the National Service Act for classification as a conscientious objector, and if he is prepared to take the consequences which follow for a person who refuses to comply with the Act, he should be entitled to refuse to comply with the Act subject to his taking the consequences of that refusal. 1 believe it affects the rights and liberties of the subject if an individual is brought before a court and argument takes place in the court as to whether or not he is a conscientious objector without his having applied to go before that court. This in itself could deprive him of certain rights and liberties.
For example, it could mean that this person would be found to be a conscientious objector. This would, 1 admit, be a minor objection. He could be found to be a conscientious objector when he had an objection to the whole Act and did not want to be found to be a conscientious objector but merely wanted to take the consequences of refusing to register. But what is more serious is that, without his having made an application, he could be found not to be a conscientious objector. It may well be said that, if he had refused to register and had suffered the consequences of not being found to bc a conscientious objector, his material situation would not be very greatly affected by this. At the same time this could be, to a person involved in this situation, something of very great importance.
A man may be a conscientious objector within the meaning of the law of our country. He may refuse to make application under the Act. Yet for some reason or other he may find himself brought before the court and the court may find he is not a conscientious objector because in fact he has produced no evidence to establish that he is a conscientious objector, although in fact he has not claimed that he is a conscientious objector. This, in itself, is an infringement of this person’s rights. The other - perhaps more substantially material - infringement of his rights would follow if this were to have the consequence that were he to change his mind, not about his conscientious objection but about his particular objection to the operation of the Act, and if he desired at some later date to make an application to be classified as a conscientious objector, the previous finding of the court that he was not a conscientious objector would prejudice any subsequent application he may make.
I hope I am not referring to the proceedings of the Committee in saying this - if I may say so, on my reading of the regulation I agree with this argument - but it has been argued that in fact the regulation does not bring the hearing of an application into court; it merely brings a person who potentially could be an applicant for classification as a conscientious objector to the threshold of the court, lt has been said that in some way the Government is giving some assistance to this person. I am not saying this in anyway satirically. It has been said that the Government, in fact would be giving some assistance to this person by bringing him along to the court where he does have the opportunity of being heard on the question of whether or not he is a conscientious objector and he can then make up his mind as to whether or not he wishes to proceed.
– Is it equivalent to a person who will not enter a plea and therefore a plea of not guilty is entered for him?
– Senator Byrne has asked me whether I believe that this position is the same as that of a person who will not enter a plea and therefore a plea of npt guilty is entered for him. If this were the case I would have somewhat stronger objections than I would have merely from a reading of the regulation. I would not have thought that that was the way in which the regulation read. The way in which the regulation read would have seemed to me to be that if he refused to enter a plea then no plea would have been entered at all because the person involved would not be a defendant or a respondent, but would be placed in the position of an applicant applying to be regarded as a conscientious objector. So it is not a question of entering a plea; it is a question rather of not entering a plaint.
– And there would be no trial ensuing.
– And it would follow that there would be no hearing and nothing would happen. I am rather at a loss to know what this is all about. Why do we have a regulation by which someone is taken to court and is not required to make a plaint or plea if there is no indication that anyone will apply for anything? It seems to me to be a rather strange exercise, in fact an exercise which to me is inexplicable. On the other hand, however, it may well be said that at least no one is worse off. The man has been brought to court. The court has asked: ‘Do you want to apply to be found a conscientious objector?’ He replies: ‘No, I do not.’ It is then said to him: ‘Very well, we will all go away.’ That may seem to be a waste of time but, apart from the time lost in going there, no one is any worse off.
Let me refer to the case against Mr Carmichael - I am quoting now from newspaper reports - which occurred this month in the City Court in Melbourne before Mr R. J. Kelly SM. This would seem to me to be strictly in accord with my reading of the regulation. When counsel for the Department of Labour and National Service and counsel for Mr Carmichael appeared in court both said that they had no evidence to offer. The learned magistrate said that as he had heard nothing he could find nothing, and therefore he ordered that the case be struck out. That seems to me to be completely proper within the terms of the regulation. There was no hearing and Mr Carmichael, apart from the time that may have been wasted in going to the court, was no worse off.
The Carmichael case was heard in Melbourne on 8th October 1970. On 7th October 1970 a case was heard in the Perth Court of Petty Sessions by Mr Ansell SM. in which a Mr Gary James Cook was in the same position as was Mr Carmichael. Mr Cook did not appear in court nor did he have any counsel representing him, but another person went along as an agent and made a statement on behalf of Mr Cook in the course of which he said that Mr Cook refused to participate in the hearing, that he did not apply for conscientious objector status and that he did not wish to be classified as a conscientious objector within the terms of reference of the National Service Act. Cook said he did not wish to be classified as a conscientious objector and Senator Wright has told us that that is just the same as Mr Cook going along and saying: T am not a conscientious objector.’ I submit that there is all the difference in the world between someone saying: T am not a conscientious objector,’ and someone saying: ‘I do not wish to apply to be classified as a conscientious objector within the terms of the National Service Act.’
A person may nol wish to apply to be classified as a conscientious objector within the terms of the National Service Act either, even though, within Australian law, he is a conscientious objector or, within Australian law, he is not a conscientious objector. This tells us nothing about whether he is or is not a conscientious objector; it merely tells us that he does not wish to apply to be classified as a conscientious objector. The learned magistrate, having heard all of this, said he found that Mr Cook did not hold conscientious beliefs which would not allow him to engage in military service. It would seem to me, from my own reading of the regulation, that that was not a decision which was open to the learned magistrate seeing that Mr Cook had given no evidence of his conscientious beliefs other than that he did not wish to be classified under the Act. I fail to see how the magistrate could have found what conscientious beliefs Mr Cook held.
If one were to take this situation to what would seem to me to be its obvious conclusion, it would have been just as open to the magistrate in exactly the same set of circumstances to have reached the opposite decision to that which he reached. If Cook had not attended the court, if the same student had appeared on his behalf and if, in the course of his statement he had said that Cook wished to be classified as a conscientious objector within the terms of reference of the National Service Act the magistrate could have said with equal logic: ‘Well, in view of that statement 1 find that you are a conscientious objector.’ lt would seem to me to be just as. open to the magistrate to bring down that decision. If he could find without evidence being tendered that Mr Cook did not have a conscientious objection, it would seem to me that with the same absence of evidence he could find that another person was a conscientious objector. If you cannot find that someone is a conscientious objector after such a statement as the one made in this case, I fail to see how you can find that someone is not a conscientious objector.
It may well be that the learned magistrate in the Perth Court of Petty Sessions did not bring clown a decision which would be upheld by a superior court were the matter taken to it. The fact is that the matter has not been taken to any superior court. It would be my opinion that for 2 such contradictory decisions to be handed down by 2 learned magistrates, one in Melbourne and one in Perth, in what were virtually identical circumstances - I believe that the statement made on behalf of Mr Cook was not evidence and that it added nothing to what was said in the Carmichael case - indicates considerable ambiguity in the regulation. If 2 magistrates can come to such contrary decisions, clearly the meaning of the regulation would not be apparent to the public at large.
– What about rights and liberties in that situation?
– Once again Senator Devitt reminds me of the rights and liberties of the individual. Certainly if the decision which was reached in Perth is to be regarded as a proper decision within the terms of the Act, then clearly the rights and liberties of an individual are very severely interfered with because the Act enables a court to come to a decision without any evidence having been given by anyone. In this case the court made a decision of a very serious nature, that is. that a person was acting in breach of the National Service Act without having any conscientious objection. The court having arrived at that decision, a serious interference with the rights and liberties of the person involved took place despite the fact that no evidence was given either by Mr Cook or by the Department of Labour and National Service. In this very mysterious hearing which took place in Perth one would find it difficult to say who the patties were. Who was the applicant? There was no applicant. Who was the respondent? There was no respondent. It was a hearing without any parties being present and without any evidence being presented and a decision was made on nothing. Senator Wright says thai he cannot see the difference between the decision in the case in Perth and the decision in the case in Melbourne. Frankly, I believe him. He probably cannot see the difference but that does not suggest to me that there is not a difference.
I believe that 1 have canvassed so far as is relevant the issues involved in this regulation. Despite what may be said to the contrary, it seems to me that ambiguous laws are not desirable. Regulations which give discretionary powers to Ministers are not desirable although I believe that in this case there may be some argument for the exercise of those discretionary powers. Certainly there is an infringement of the rights and liberties of individuals insofar as they should have the right to be regarded among their peers as either having or not having a conscientious objection only if they choose to give evidence that they do have such a conscientious objection. It seems to me to bc a gross breach of a person’s rights if a stale of affairs is reached in which a person is found not to have a conscientious objection without his ever having applied to be regarded as a conscientious objector.
– Do you know whether they have provision for conscientious objection in North Vietnam?
– I do not have any idea, and I do not intend to discuss the situation in North Vietnam. Before Senator Webster arrived I was trying to discuss the matter on the merits of the regulation, i realise that that would be a rather difficult task for him to engage in, but I do not intend to digress from the discussion of the regulation.
I know that there are people who, with very great sincerity and with a very great knowledge of the law, on balance have come to a different decision on this matter from that to which I have come. In the light of the 2 decisions - I am speaking purely personally here - if it were not for the decision taken by the Perth magistrate or if, after the decision had been taken by the Perth magistrate, some undertaking had been given that an amendment was to be made to the regulations to prevent such decisions being taken in future, my own personal inclination would be not to oppose the regulation. But that has not been done. So, because of that decision, I believe that the regulation should not be allowed by the Senate.
– I believe in and support the broad objectives of the National Service Act. I see in this regulation an intent which, in a very broad way, is designed to facilitate the purposes of the National Service Act. My whole inclination, therefore, is to support it. But I must say that, having spent many hours in the Regulations and Ordinances Committee in consideration of this measure and having heard what has been advanced today, it is a regulation which I think arouses a great deal of concern. Although I do not intend to support the proposal that has been moved, I believe that it is wise for me to express the concern that I feel at certain features of this regulation.
As I understand the intent of the National Service Act, it requires that all persons of a certain age, as fixed by the Minister for Labour and National Service, shall register. After they have registered, they are submitted to the requirement that they attend for medical examination, and certain of those who register are required to submit to a call-up notice and to undertake national service. The Act contains a provision under which various persons are exempt. One of the provisions of exemption is for a person who conscientiously believes that he cannot undertake any form of military service. When a question arises as to whether a person has such a conscientious belief and therefore is exempt, there is a provision in the legislation which states that that question shall be heard and determined by a court of summary jurisdiction. The Act is quite silent as to how that question is to be brought before the court so that the court can hold the hearing and make the determination. The only thing the Act does, which might bear upon this in any way, is to indicate that he who claims the exemption carries the onus of establishing that exemption.
Ever since 1953 regulations made under the Act have stated that a person who claims the exemption may fill in a form which eventually brings the matter before a court. Until the last year or two it was quite apparent that that means of ensuring that the question came before the court was adequate. If a person seeks the benefit of an exculpatory provision of an Act or seeks the benefit of an exemption it is natural to expect that he will claim it. But over the past 2 or 3 years - I believe that this is a phenomenon of the changing times and the changing attitudes - there has developed a group of persons whom I would classify as political objectors and who maintain that they have no obligation to subscribe to or to obey an Act to which they hold a strongly based objection. Accordingly, there are people who refuse to have anything to do with the National Service Act and who maintain that the state has no right to pass an Act that imposes upon them obligations of the character of those which the National Service Act imposes.
– They face a penalty.
– I accept that that is part of the phenomenon to which I have referred. These people who object, for the most part, accept the fact that if they object there is a penalty to be paid. On the other hand, there are some who feel that they can have the best of both worlds; that they can decline to obey the Act and also that they can avoid any penalty. It is in order to meet those people that I understand this provision has been inserted in the regulations.
This regulation gives to the Minister a power to refer to the Registrar cases of people who have not made an application claiming the exemption, and the Registrar then places the matter before the court There are 2 conditions upon which the
Minister’s discretion rests. One condition is that a question arises or that a question has arisen as to whether or not a person claims the exemption. The second condition is that the person has not made an application claiming the exemption. If those 2 conditions exist, the Minister has a discretion.
– The question for the Minister is not whether the person claims exemption but whether he is entitled to claim it. is it not?
– Under section 29b of the Act the question is whether or not-
– It is only a matter of the form of expression used.
-I appreciate what both Senator Byrne and the Minister have said. The wayI look at the matter is that section 29b states: (1 . ) Where a question arises whether -
As I see it, that section poses the question whether or not a person is exempt. The new regulation uses the expression ‘Where a question has arisen’. I imagine that it is the same question.
– The question that has arisen is whether he is exempt, not whether he has applied.
– The basic question is whether he is exempt and that involves the question whether he has a conscientious objection to any form of military service.If those 2 conditions exist - one that the question whether a person is exempt has arisen, and the other that he has not claimed the exemption - the Minister may refer the matter to the Registrar and the Registrar will place the matter before the Court. it appears to me that a particular class of persons is designated by the bounds of those 2 conditions. Insofar as the Minister has the ability to pick and choose which of those persons he will refer to the court. I believe that the regulation gives him an undesirable discretion in what is a delicate area and an area in which there should be at all times not only fairness but the appearance of fairness. This as I see it, is a matter of some importance. I think it is of importance in that the Minister, by the use of this discretion, may conceivably cut down the operation of the Act. If the Act states that the question of whether or not a person is exempt is to be determined by a court, the Minister, under the regulation, may in regard to a particular class of persons refer that question in some cases and not refer the question in other cases. All these are matters of some concern.
I would have thought that it was the easiest thing in the world and an entirely proper thing for the Minister to refer to a court every case where a question arose as to whether or not a person was exempt when that person had not claimed an exemption. I appreciate that when thematter is referred to the court it will have nothing to consider unless the person is prepared to say something, or to give some indication by what other people say, as to whether he is exempt from the obligations ofthe Act because he has conscientious objection to any form of military service. If a person does not wish to say anything, that is his right. He cannot be compelled to say anything. Therefore, to the extent that the regulation achieves anything, it achieves merely the objective of putting a person on the threshhold of the court where he may or may not, as he chooses, state to the magistrate facts and matters which might entitle him to exemption.
As the Senate has been informed, the Regulations and Ordinances Committee spent many hours looking at this position. We were aided by the submission which the Minister for Labour and National Service (Mr Snedden) placed before us. I think it is fair to say that in the long run we recognised that: the nature of the rights and liberties which were affected were of an insubstantial character, having regard to the fact that a person at all times has a right to make a claim for exemption. In effect, if all thatthe Minister may discriminate between are certain persons, some of whom are to be referred to the court and others who are not to be referred to the court, it is an insubstantial consequential effect of the discrimination with which we are concerned. It is because it was so insubstantial that it was felt not to be a proper matter to be made an issue.
Because I regret the Minister’s reply to Senator Wheeldon I must say that if the decision of the magistrate in the case of Mr Cook in Perth was to be regarded as a correct decision, I should have thought that there was an impairment of something which was vastly more substantial than is involved in what the Committee had to that stage considered. If a person may have his case referred to the court and if at the court he may say ‘1 do not wish to be classified as a conscientious objector’, after which the magistrate says T find this person has no conscientious beliefs’, it appears to me that that person is being put in an untoward position in which his status is being designated differently from what he had asked for. It would be a designation which to him would be quite significant. 1 do not think a person should be declared to be a person who holds no conscientious beliefs when he has given no basis for a determination of that issue to be raised. My own view on an examination of the regulation is that a magistrate can make no such determination until there has been a hearing.
In the case in relation to which we had newspaper reports to aid us there appeared to be no hearing of Mr Cook’s application and therefore, in my judgment, for which after a discussion there was at least some degree of support, an error would appear to have been committed by the magistrate. But it is largely because one must form one’s own opinion on these matters that one forms a view whether or not there is a substantial prejudice. I feel that in this case, if the magistrate’s view were to be taken as the right view, my attitude would be different from what it is. But in the view I take I do not think a person is in jeopardy if his matter is referred to the threshhold of the court and it is left to him to decide whether he proposes to say anything.
I have adverted to all these matters because I feel that whilst the general objective facilitating the purpose of the National Service Act is quite desirable as expressed by the general intent of regulation 5, nevertheless the language in which it is worded does give cause for concern because it imposes on the Minister a dis cretion which may enable him to act unfairly. Because in my opinion the Minister who administers the Act would not act unfairly and because the consequences of any such action would not represent a substantial interference with the rights and liberties of an individual I do not feel that the motion ought to be supported. I propose, therefore, to vote against it.
– As a member of the Regulations and Ordinances Committee I should like to make some observations on the matter now before the Senate and to pose a few questions without delaying the Senate too long. There are things which I thought might have come out in the course of the debate but which, as far as I am aware, have not. Firstly, what we are dealing with is the question as to whether a person who indicates a refusal to comply with the NationaService Act may properly be taken before a court of summary jurisdiction and tested as to whether or not he is a conscientious objector. That, raises some interesting questions. For instance, there is the point whether a person has a right in those circumstances to remain mute and not to. adduce any evidence one way or the other on his own behalf. If he makes a judgment in his own mind that he does not propose to take any initiative to have a court test whether he is a conscientious objector, surely he is making a determination that, because of the view he holds, he is prepared to take the consequences of the law as it stands. I suggest that this is exactly what happens.
When the move was made in the Senate to disallow the regulations it was on the grounds that an undue discretion of an administrative character lay with the Minister and that the judgment in the matter would not be made on judicial grounds. It has been argued in the course of this debate that the Minister takes administrative action by requiring a person to go to the threshold of the court, after which the matter is taken over in a judicial way and a determination is made. It has been argued also in the same context that if a person fails to comply with the Act and goes to the court and continues to remain mute - if he will not make a statement when he gets to the threshhold of the court - nothing further can be done. But in the Western Australian case about which we have just heard the magistrate must surely have held that a hearing had taken place as a result of which he made a decision - in the absence of evidence certainly - that the person was not a conscientious objector.
Who can say what the consequences of that decision might be in time to come? I do not know what they might be, and I do not think anybody can contemplate what may happen to a person in the course of his later life if at some time in his life a court has made a judgment that he was not a conscientious objector. AsI see it, there could well arise a case involving a person of very high repute in the community who refused absolutely to comply with the National service Act, who then was required by the invocation of section 32 to go to the threshhold of a court which, as in the case of the special magistrate in Western Australia, might make a judgment that he is not a conscientious objector. There may be some odium attached to that. On the other hand, of course, it may verywellbethatcircumstancesarisewhere a person having a similar regard for reputation in the community refuses to comply with the regulations. This creates some very serious misgivings in regard to the laws of the land. It may become a political matter, as has been suggested, and the Government may very well find it convenient to try to get off the hook, as it were, to proceed to a judgment and to arrive at a decision that in fact this person is a conscientious objector.In that case, the other provisions of the National Service Act can be invoked and that person would not be required to undertake military service.
It has been suggested that if a person declines to comply with the Act when he is taken to the threshold of the court he may change his mind and decide to respond to the charge and to give evidence before the court or to put up some case on his own behalf. I suggest that the great majority of the people in the community are overawed by the courts. The very austere atmosphere may very well be strange to them. Because they are out of their usual environment they may be put in a situation which is prejudicial to them and which jeopardises their own position. They are single individuals taking a stand - quite an unusual stand, if I may say so - against a court of law of the land. It is a stand that very few people in the community would take. Certainly the advantage must lie with the court and the disadvantage with the person concerned. These are some of the questions that arise in my mind. Another question which must exercise the minds of honourable senators is whether the matter is of such importance that it ought to be the subject of substantive legislation rather than legislation by regulation. I am not saying that the result cannot be achieved by regulation but the circumstances and the importance of this matter are such that substantive legislation might well have been provided to cover the situation.
Perhaps I should end my remarks by shortly making a comment about what some people assume to be their rights in the community. Right through history it is recorded that people have acted in such a way as even to surrender their lives for some cause, some attitude or some view which they hold very dearly. One could refer to the Christian martyrs. One could also put into this same general category the Kamikaze pilots of the Second World War who were prepared to give their lives because of something in which they believed so implicitly. This type of person was also evident in Prague during the Czech uprising some time ago. Some of them burnt themselves in Wenceslas Square because of the views they held.I do not supposeI would have the courage to do anything of this sort myself but honourable senators must concede that there are people who do hold strong views and are prepared to sacrifice their lives for them. Does the person who refuses to comply with a law which he believes to be wrong come into the same category? I think we have to ask ourselves whether in fact he does.
There are a number of other things that one could say, but I believe the matter has been very well canvassed by honourable senators. The Minister has agreed that the implementation of this regulation would give him a discretion as to whether or not he would invoke its provisions. The main point seems to me to turn on the expression ‘unduly interfere with the rights and privileges of the citizen’. There is no doubt at all that it docs interfere with the rights and privileges of the citizen. This law is being applied differently in 2 States of the Commonwealth. I do not know what can be done to correct that situation. Maybe some action can be taken to remedy it. It may be that some action can be taken to undo the damage that has been done to the person in Western Australia who had a finding made against him in a court proceeding. Some people may hold that it was not a hearing. If it was not the decision made by the court was clearly wrong and ought to be reversed. What can happen under this regulation can be seen in fact to unduly interfere with the rights and privileges of the citizen.
– That is not the correct expression. It is ‘unduly make the rights and liberties of citizens dependent upon administrative rather than upon judicial decision’.
– That is right, yes.
– The whole purpose of this regulation is to make these rights dependent on a judicial decision.
– No, I suggest that that is not so. It has already been demonstrated that that is not so. One could refer to the expression ‘where a question has arisen’. I suppose it is fair enough to ask: What does this expression mean? In what context is this expression offered?’ For instance, if a person is a member of a football team and his name is omitted from the list of players one Saturday somebody will ask: ‘Where is he?’ The answer comes back: ‘He has been taken away because he failed to comply with the National Service Act’. The regulation provides:
Where a question has arisen, whether as a result of an oral or written statement by a person or otherwise . . .
So it is open to very wide interpretation as to how a question may arise in these circumstances. I believe that the regulation is very badly drawn and ill conceived. I think its purpose is to permit the Minister to make a decision. The Minister may require the Registrar of the Department of Labour and National Service to do something in the case of Brown and he may not be disposed to do it in the case of Jones when the circumstances may be quite similar. So the regulation gives the Minister a discretion and it certainly makes the rights of a person dependent on an administrative decision rather than a judicial one. As I said, a person is taken to the threshold of a court and, if he declines to co-operate, the court can still proceed to make a judgment. Surely it must be held that his rights and privileges are in fact subject to an administrative rather than a judicial decision. I believe that in all the circumstances the situation could very well have been covered, and should have been covered, by substantive legislation rather than by regulation. In any event, I think that the regulation is bad in itself for the reasons which have been very well canvassed. If it is held that the rights of individuals are of paramount consideration in this country, I strongly suggest that the Senate ought to disallow this regulation.
– In reply - I would like to mention one or two other matters in reply to honourable senators. Whatever the result of the vote on this regulation, it has become very obvious from the discussion that the debate was won by senators who have doubts about the regulation. Despite the fact that Senator Greenwood does not intend to vote for the regulation, I think in his own mind he has many doubts about it and would like to see the regulation disallowed. I have only to deal with the remarks of the Minister for Works (Senator Wright) who felt he had an obligation to defend the regulation but was battling very hard to do so because he could not find any merit in it. I believe he thought the regulation so weak that he had to bring personalities into the debate. With knowledge of the amicable discussion which went on in the Committee I tried to keep my remarks on the level of whether the regulation was right or wrong. I have a strong political objection to this regulation which I did not want to introduce because of the high plane on which I thought we should keep this discussion. It was left to the Minister to drag the debate down to the criticism of one who dares contest the regulation. The Minister showed his weakness by invoking Standing Orders and asking whether we could discuss something which had happened in the Regulations and Ordinances Committee. Standing Orders need never have been applied to this debate. At all times Standing Orders must be more for guidance than strict adherance. If anyone wanted to criticise the activities of members of the Regulations and Ordinances Committee or criticise the giving away of secret information one should understand that the Standing Orders exist to protect the Committee.
Everyone on the Committee was desirous of reaching what they thought was a right decision based on the information or opinion which was before the Committee. Standing Orders were invoked by Senator Wright on this occasion to prevent the giving of an explanation of the regulations and to make the opposition to the regulations clear. I know my limitations. Possibly the Minister was justified in saying my explanation was not too clear. I claim it would be proper to deal with this matter by legislation if it were desirable that the Minister should have this power. I have stated that it has not been disproved that the power could conflict with a person’s religious conscientious belief. An individual might not want a court to decide the question. If someone has a religious belief that the court should not interfere in and examine his conscientious objection this regulation could well offend against section 1 16 of the Constitution.
No-one has explained how the rights of Gary James Cook in Perth have not been prejudiced if he has a conscientious belief and wants to exercise his right to go to court. This is a question which Senator Greenwood could not overcome. He joined with Senator Wheeldon in a belief that the magistrate could have been in error in that judgment. But that is a recorded decision of a court which will have to be faced up to if this individual makes an application for his rights under the National Service Act. If the court were in error there is no-one to rectify that error. Many more courts may be in error. If the court were not in error and Mr Kelly S.M. of Melbourne came to the right conclusion in the case which he heard we have a regulation which, without an application, can never exempt anyone from military service.
Under the Act if someone has a conscientious objection at any time he can apply to the court and establish his conscientious objection. If Mr Kelly were in order the alternative would be that the Minister for Labour arid National Service (Mr Snedden) could refer the matter to the court. But if the individual who has not made applica- tion to establish his conscientious objection will not say anything to the court the case must be struck out and there is no examination of a conscientious objector at all. The only way in which the Minister’s referral can have effect is if the person, the trainee or the soldier - whatever he is - makes a statement to the court and establishes his conscientious objection. A person has this right under the regulation. If he will not use that right the Minister cannot succeed in establishing a conscientious belief by an application to the court. Therefore why does the Minister want this power? At one time I thought it was to get him out of a fix. Perhaps he did not want to send someone to gaol because of the power behind that person. It becomes obvious now that the regulation cannot be used for that purpose.
If ever Carmichael goes to gaol there will be the greatest upheaval in Australia. But despite this the regulation does not help the Minister keep him out of gaol. I ask honourable senators to look at the case of Brian Ross. The Minister instituted an inquiry into the beliefs of Ross because he was convicted before the regulations came into operation. The Minister, in fairness, thought that Brian Ross should have the benefit of an inquiry which these regulations would give to anyone who came after Brian Ross, before they were sentenced. At the request of the Minister Mr Justice Smithers held an inquiry into Ross at the Sale Gaol. Ross went to the inquiry and said: ‘I refuse to give any evidence. I will not help you.’ That statement is similar to the statement made by Cook in Western Australia. Under the regulations that was not an inquiry. Had the case been referred to Mr Kelly in Melbourne it would have been struck out with no decision made. Had it been heard by Magistrate T. Ansell in Western Australia it would have been found that Brian Ross did not have a conscientious objection. By ignoring the public trial, sitting privately in chambers and having a conversation with Brian Ross and his parents Mr Justice Smithers came to the belief that Ross had a conscientious objection. So here was an individual who at all times had a conscientious objection which exempted him from military service. He did not want to avail himself of that’ objection. If he had availed himself of this regulation under Mr Ansell his right would have been taken away from him and he would have had no case. Had he made an application to the court he would have been up against the situation that the court had decided the question.
I went to a demonstration for Ross outside the Sale Gaol. All those who lived around Ross’s neighbourhood and who knew him were there. They knew his Christian and conscientious beliefs which were known throughout Victoria because he would not apply for military service. The criticism of the Act which put such a fine young lad in gaol was overwhelming in Victoria, so much so that the Minister had to have an investigation into the matter. The Minister is protecting himself against future cases similar tothose of Brian Ross and Cook which may involve lads who claim to have a conscientious belief. The Minister is saying that it is a court decision and not his decision.
Two different decisions can be gained from identical sets of circumstances at 2 different inquiries - one to the effect that a man has a conscientious objection and one to the effect that he has not. The Minister wants the regulation only to protect himself against the accusation that he is putting into gaol a person with a conscientious objection. He wants to be able to say that under a decision of a court, the person concerned has no conscientious objection. He wants to be able to claim that the person has had the right to be heard by a court. This is the purpose of the regulation. To my mind the proposed regulation should be rejected because it is not in accordance with the view of the members of the Regulations and Ordinances Committee. Because the regulation was introduced on political grounds, it should be rejected. I ask the Senate to carry the motion.
That the motion of disallowance be agreed to.
The Senate divided. (The President - Senator Sir Alister McMullin)
Majority . . . . 2
Question so resolved in the negative.
Sitting suspended from 6 to 8 p.m.
– I move:
That Part IV of regulation 2 of the amendments of the National ServiceRegulations, as contained in Statutory Rules1970, No. 1 16, and made under the National Service Act 195 1-1968, be disallowed.
Mr President, you will note that there is a slight difference between the terms of the motion which I have just moved and the notice of motion which has appeared on the notice paper since 16th October, which is when I first gave notice of this matter. The motion for disallowance was delayed for 7 or 8 days at my request. The Senate will recall that on an earlier occasion I said that it was a holding motion and I wanted to have the chance to look further into it. It would be obvious to anybody who examines this matter that there could not be any argument about the first part.
– Order! Senator Willesee, do you seek leave to amend the motion?
– Yes. I seek leave to amend the motion in the terms 1 have outlined.
– Is leave granted? There being no objection, leave is granted.
– I thank the Senate. I believe that this matter can be dealt with briefly. Section 25 of the National Service Act lays down the obligations of persons in regard to rendering national service. Sub-section (l.)(d) of section 25 states that a person who has not attained the age of 26 years or, in the case of a person included in a prescribed class of persons, 30 years, is liable to render service as required by or under This Act. Part IV of regulation 2 of the amendments of the National Service Regulations, as contained in Statutory Rules 1970, No. 116, refers to university graduates who are undergoing or are about to undergo training for the purpose of acquiring further professional qualifications or special professional experience and whose liability to render service under the Act has been deferred for a period that will expire after they attain the age of 26 years. These constituted a prescribed class of person for the purposes of section 25(l.)(d) of the Act. The motion with which we are dealing tonight seeks to amend Part IV.
– Is the honourable senator aware that this provision was amended in 1968?
– Yes. I am afraid that because of the time factor I am trying to take short cuts. Senator Wright is perfectly correct. The amendment to the regulations under the National Service Act which I seek to have disallowed is the provision relating to persons who are undergoing or are about to undergo a course of study or training and whose liability to render service under the Act has been deferred for a period that will not expire before they attain the age of 26 years. Paragraphs (b) and (c) of regulation 21 deal with this situation.
The position is, very briefly, that the Australian Labor Party does nol believe in people being called up for national service. However, it believes that if a call-up system is to operate it should not operate to exempt certain classes of people because this means that somebody else has to fill their places. It is quite true that a special provision has been made for university students of an age which makes it quite obvious that they would be doing postgraduate work. This exemption is sought to be extended into other areas. The Govern ment may argue that if university students are entitled to exemption others undergoing senior studies in technical or other fields should be similarly privileged. The sum total of what I want to say, and this is also the attitude of the Australian Labor Party, is if the Government is to have a call-up system it should be fair. If exemptions are granted to certain sections of the community, people down at the bottom of the scale will have to fill their places. Obviously if the Government says that it is going to call up X number of people into the armed forces this year and then proceeds to grant exemptions to 100, that deficiency has to be made up from somewhere else. It seems to the Australian Labor Party that the more privileged people are able to have their call-up deferred and the less privileged people have to fill the vacuum. Therefore, on behalf of my Party I have moved for the disallowance of this regulation in order to allow honourable senators to express their views. As 1 said earlier, if the Labor Party had its way there would not be any call-up at all. f repeat that the Labor Party believes that other sections of the community should not have to fill in for the exemptions which are granted to the privileged classes.
– I believe that Senator Willesee disclosed the true motive when he said that the Australian Labor Party believed that there should not be a call-up system at all. His attempt to invalidate this provision is simply a pursuance of this blind purpose. Whilst the National Service Act is on the statute book this Parliament, in its regulation supervising capacity, ought to act in obedience to the law as it is properly interpreted.
– Even a bad law?
– It needs to be demonstrated that the effort which affirms the disallowance of this provision is to nullify what the Opposition thinks is a bad law. The Government believes that it is a law which is essential to strengthen our defence forces. While we have true Australians engaged against the enemy they must be consistently supported until they are withdrawn. So long as it is understood that this issue, under the guise of the disallowance of a regulation, is just another effort to subvert or undermine the National Service Act, I am prepared to commit the matter to Senate.
The National Service Act provides that some people will be exempt from the obligation to serve in the armed forces. These people were referred to this afternoon. The most vocal section is the conscientious objector group. Other people who are exempt from the provisions of this Act are persons who are subject to prescribed physical and mental disabilities, students at theological colleges, ministers of religion and members of religious orders of a certain description. The classes of persons to whom exemption is accorded are limited by the strict terms of the Act.
There is all the difference in the world between the exemption which .is accorded by the statute and regulation 31 under the National Service Act. Regulation 31 provides that where it appears to the Minister for Labour and National Service to be necessary or desirable to do so in the public interest he may defer the liability to serve of the persons included in such classes as he determines. The classes which the Minister thinks it proper to defer liability to render service are set out. Senator Willesee referred to regulation 25, which is the provision concerning the duration of the obligation to serve, ft states that a person of 19 and upwards is liable to serve. The upper limit is prescribed as being a person who has not attained the age of 26 years or, in the case of a person included in a prescribed class of persons, 30 years. If the Minister feels that the obligation of a person to serve should be extended from the age of 26 to the age of 30 he has to prescribe by regulation the classes whose obligation to serve continues after the age of 26 and goes up to the ultimate limit of 30 years of age.
– What classes?
– The classes that he has there prescribed. I will come to that in a minute. The purpose is so that he may operate his power to defer. It would be completely inconsistent with the Act if he were to grant deferment of the obligation to. serve until a period after that obligation ceased. He would then under the exercise of a power of deferring be granting exemptions according to his determination. It is by that principle of this Act that we avoid any possible imputation that a Minister’s decision may exempt anybody from the Act. If a person is to be granted exemption from the Act, he is specified in the Act itself, but a deferment or postponement of his obligation is within the capacity of the Minister. Therefore the Minister in exercising his authority to defer must ensure that it is not so exercised as to be equivalent to exemption.
This regulation is before the Senate because since 1968 the people who under 25 years of age can have their obligation extended from 26 years to 30 years by regulation were described in the 1968 regulations to be - I am referring to Statutory Rule 112 - in the first class university graduates, not undergraduates, who are undertaking or are about to undertake training for the purpose of acquiring further professional qualifications or special professional experience and whose liability to render service under the Act has been deferred for a period that will expire after they attain the age of 26 years.
That provision was prescribed so that their liability to serve would operate at any time before they were 30 years of age, to enable the Minister ‘ to exercise his power of deferment so as not to interrupt a post-graduate course regarded as of special value. Honourable senators will appreciate that it is a very limited class which was specified as such from the beginning of the Act in 1953 and confirmed in this regulation of 1968.
– Are you going to make it retrospective?
– it is obvious that Senator Keeffe has not even the blindest understanding of what I am talking about. I do not have the time to go back and to try to restate it to benefit his understanding. The second class of people to whom the regulation applies covers prescribed people whose applications would continue to 30 years and beyond the age of 26 years in the terms of the Act. Section 25 provides that the obligation to serve continues to the age of 26 years, or in the case of a person included in a prescribed class of persons, 30 years.
The other class for whom provision was made in 1968 covered members of the Citizen Naval Forces, Citizen Military Forces and Citizen Air Force who are liable to render service under the Act, but whose liability has been deferred for a period that will expire after they attain the age of 26 years. It is clear that since 1968 graduates and CMF personnel have been prescribed under this regulation. Therefore their obligations to serve will continue to the age of 30 years. In respect of them, the Minister is enabled to exercise his power of deferment so that it will cease at about the age of 27 years or 28i years. They will then be able to undertake their national service.
The first 2 paragraphs in the regulation of 1970 that Senator Willesee chooses to challenge simply repeat those 2 classes and add a third class. The third class of person, whose liability continues to the age of 30 years, covers persons other than persons who were at the time when they attained the age of 26 years exempt from liability to render service under the Act, or persons who have been notified by the Secretary in accordance with regulation 20 of these regulations that they have been found unfit for service under the Act but have not commenced to render service and have not been granted deferment of indefinite duration of their liability to render that service.
The whole purpose of that provision and the proceeding regulations is that the Minister will in respect of these classes have a more ample power of deferment. Some examples of the occupations being undertaken by registrants who registered during the first registration for national service in 1965 and whose courses will have to be interrupted in the absence of this amendment are as follows: fitters; toolmakers; draftsmen; laboratory technicians and technicians completing apprenticeship or courses of training now undertaking a diploma of mechanical engineering; printers; electricians; radio technicians who have completed apprenticeships and who are now undertaking higher grade certificates; electronics technicians proceeding to a certificate in electrical engineering; building industry employees pursuing certificate courses in building technology; draftsmen proceeding to diplomas in architecture and civil engineering; metallurgists; industrial chemists; laboratory technicians proceeding to diplomas of science; and men pursuing various degrees including dentists, teachers, doctors, computer programmers, finance officers and bank officers.
Senator Willesee’s submission should be understood in the light of those details, and particularly his claim that this regulation is in favour of the more privileged and that burdens will be added to the lesser privileged. I point out that it is to enable this body of people who will enter upon courses which will extend beyond their 26th birthday to get the benefit of deferment that the regulation is designed. Without it the provision would be for exemption. The Minister desires that they complete their courses of training of the descriptions I have detailed so that they will be able to have their services deferred. Therefore, under section 25 it is imperative that we prescribe that they be classes whose obligation to serve extends until they are 30 years of age and does not expire at 26 years of age.
As to the numbers of registrants for national service who have currently had their liability for call-up deferred because of study and training, the following figures are illuminating. I can be seen that not one group predominates to the exclusion of another. As at 20th October 77,112 were students or are being considered for deferment as students. Of that number 4,078 are undertaking degree courses at universities. Only 144 have prolonged their deferment by taking up post-graduate studies. These regulations will give the benefit of deferment to 4,078 people. Without them, it would be possible to give it to only 144 There are 3,634 men undertaking nondegree courses, that is, other than university courses but including technical college courses; 5,612 are trainees or are being considered for deferment as trainees; 3,828 are apprentices undergoing various apprenticeship courses; 1.326 arc not apprentices but are undergong recognised courses of training and are bound to their employers in respect of that training. There are at present some 1,000 registrants who will not complete their courses of study or training in time to permit them to commence their national service liability before they attain the agc of 26 years.
It is patently clear that the amendments contained in these regulations are in the interests of these men. 1 put this information before the Senate to show how completely the proponent of the disallowance of these regulations misunderstands their substance and effect. They are designed, as , I said, to expand the. range of people to whom deferment can be accorded because authority for this cannot he exercised by the Minister so as to be equated with exemption. As these people have entered upon courses of study and as their deferment has been granted up to this time it is desired that their courses not be interrupted by their having to be called back to do their compulsory service so that they will be in camp before they are 26 years of age. It is desired that they complete their courses. If these regulations stand, their obligation to serve will be extended from the age of 26 to 30 years. We hope to be able to accord deferment to them until they complete their courses. This will be possible if the regulations stand. If they are disallowed it will be imperative, under the Act, to call them up for national service because the Government will not have authority to continue the deferment.
– I do not want to make a speech; rather 1 seek enlightenment. I endeavoured to obtain this information by way of interjection but the Minister for Works (Senator Wright) adopted a rather sarcastic attitude, i now want to put some questions very respectfully to the Minister. Two groups of people are affected by these Regulations and I want to know what is going to happen to them. The Senate will know that since the introduction of conscription a fairly large number of men has left Australia. Many of them, or most of them, would not yet be 30 years of age. What will happen to them if they decide to return to their homeland? Will they be conscripted and forced to complete their national service training before they reach the age of 30 years?
– I interject, Mr President, so the Senate will clearly know my position, if you will permit me to do so. Their obligation to serve remains until they are 30 years of age.
– That is what 1 suspected. That is the information I desired. The other thing is that there are many hundreds of young people completing some form of study who are now being called up. In some cases they have been warned that they are going to be called up. Others are already serving. What happens to these people? Probably they have had 2 or 3 deferments and probably they have not yet reached the age of 26 years. On the other hand they may have attained that, age. Will some sort of retrospectivity be granted to them? In other words, is their liability to serve to be extended until they are 30 years of age or, as happens with the drawing of the marble, is this just too bad, they have missed the luck of the draw and they have to serve? I would like the Minister to answer my questions about these 2 matters because I believe they have a vital bearing on the regulations that the Government is trying to have approved.
– I think there is something wrong. We are nol in Committee and the Minister for Works (Senator Wright) has spoken about this matter.
– I understand the position. I permitted the Minister to make that explanation. The Minister may ask for leave to speak if he wishes to adopt that course.
– 1 want to speak about this matter. 1 did not doubt for a moment, Mr President, that you were fully aware of the position. I know that if a point of order was raised you would rule against that course being followed. I do not oppose the Minister answering any question that may arise at this stage. However, I am concerned about the information he gave in reply to the questions posed by Senator Keeffe. As I understand the matter, one question related to someone who had left Australia. Senator Keeffe said that many young men have left Australia. They have been trained to suit our way of life but left Australia in order to dodge this obligation. What will happen lo them when they return from overseas? I take it from the Minister’s reply that they have an obligation to serve until they attain the age of 30 years. I cannot understand this. In my belief, other than for a prescribed class of person, the obligation to serve ends at age 26 years.
– Those persons are the class described in paragraph (c) of regulation 21, the regulation under challenge.
– As I understand it we are referring to university graduates in this age group. They are not the people who have gone overseas. They are not a prescribed class of persons. Now it is sought to extend-
– Persons undergoing a course are dealt with in paragraph (a) of the regulation under challenge.
– To whom does paragraph (a) refer?
– Graduates are included in that paragraph.
– University graduates are included but people who have gone overseas are not university graduates and their obligation ends at 26 years of age. It is sought by these regulations to extend this provision not only to graduates but also to those undergoing a course of training. This will include apprentices etc., as the Minister said, but Senator Keeffe’s questions related to a chap who had gone overseas. He is not included in any of the prescribed classes of persons. His obligation ends at 26 years of age. We want to know when that man can come home and fulfil his obligation to this society in civil fife. In effect, he has been exported. We trained him. I have been referred to the case of a school teacher who is under an obligation to serve in the Education Department in Hong Kong at the present time. When can this school teacher come home? The Minister’s reply indicated to me that these people had an obligation to serve until they attained 30 years of age and that is the matter that I query.
– I told you, senator, that this category comes under paragraph (c).
– Yes. The Minister has the advantage over me. I doubt very much whether I have the regulations. This relates to regulation 21, does it not?
– Yes. Mr President, I can clear this matter up. May I have leave to interpose?
– Is leave granted? There being no objection, leave is granted.
Senator WRIGHT (Tasmania - Minister for Works - Paragraph (c) of proposed new regulation 21, which is under challenge, prescribes this class of person: persons (other than persons who were, at the time when they attained the age of twenty-six years, exempt from liability to render service under the Act or persons who have been notified by the Secretary in accordance with regulation 20 of these Regulations that they have been found unfit for service under the Act) who have not commenced to render service under the Act and have not been granted a deferment of indefinite duration of their liability to render that service.
In effect, this paragraph prescribes as a class of persons whose obligation to serve continues until they attain 30 years of age those persons who were not exempt and who were not declared unfit and who had not commenced to render the service that they were bound to render under the Act and who had not been given indefinite deferment.
That the motion (Senator Willesee’s) be agreed to.
The Senate divided. (The President - Senator Sir Alister McMullin)
Majority . . . . 2
Question so resolved in the negative.
Debate resumed from 27 October (vide page 1547), on motion by Senator Dame Annabelle Rankin:
That the Bil] be now read a second time.
– The Bill now before the Senate is designed to allocate to the States the sum of $1 42.5m for housing mainly in connection with projects undertaken by housing commissions and housing trusts. This is the last Bill of this kind which will come before the Senate under the present 5-year housing agreement so it seems to me that this is a golden opportunity for a national inquiry into housing requirements throughout the Commonwealth. The last inquiry of this nature was conducted in the late 1940s. There has. been no assessment since then of the kind of housing that is required, the number of houses that are needed and the slum reclamation that is necessary to raise the standard of housing. This is a real opportunity for the Commonwealth Parliament to initiate an inquiry which will deal in depth with all of the problem associated with housing in this nation. I would not confine the inquiry to housing coming within the control of the housing commissions and housing trusts in the various States. I would extend it to the field of war service homes and to the application of the homes savings grants which were introduced in 1963. I would conduct a full and complete inquiry to ascertain our housing requirements at this stage in our history. lt is obvious that there is no relationship between State and State and between the Slates and the Commonwealth in regard to housing requirements. There is no modern thinking about what is happening in the field of war service homes. No attempt has been made by the Government to iron out the anomalies which exist in the homes saving grants scheme. Year by year we pass Bills relating to loans for housing and allow the States to spend the money as they wish without inquiry or investigation from the Commonwealth Government. Some of the things that are happening in the States should be investigated by the Commonwealth, which is providing the money in the form of interest bearing loans, with the object of mak ing some decisions on the type of housing that should be built. Even now the Housing Commission in Victoria is saying that there is not enough research into housing. A statement by the Chairman of the Housing Commission Mr Gaskin was reported in the Melbourne ‘Sun’ in the following terms:
The Housing Commission was not doing enough research into housing needs, the Commission Chairman, Mr P. i. Gaskin, said yesterday.
He said legislation to be introduced in this session of State Parliament would enable the Commission to do more.
If the Housing Commission in Victoria proposes to do more along the lines of what it is doing now, I want to see some action taken to ensure that it ceases. The Commission has undertaken a programme of building high density, high rise flats. By putting family units into the environment in which it is now putting people, it will create in Victoria in 50 years time the type of Harlem slums that exist in New York today. There is no concern about providing the small suburban home that each family should have.
The Housing Commission is not concerned about the welfare of people, lt is concerned about getting bodies into the metropolitan area to encircle the Golden Mile for the purpose of putting money back into the pockets of the big business interests in Bourke, Swanston and Collins Streets. If one goes to Melbourne today one will see the whole of the centre of the city encircled by blocks of flats up to 20 storeys high, in which families are to live, in which the facilities are poor, in which the recreation facilities are almost nonexistent in relation to the numbers of people who live in the flats and in which assistance to young mothers in the form of creches and facilities for looking after their children at pre-school centres are almost non-existent. The Housing Commission is building a giant concrete jungle to house people who should be living on suburban blocks.
The situation has now been reached where the State Government, in its mad desire to build up a great population again in the centre of Melbourne is prepared lo bulldoze down homes which the people within the inner area of Melbourne are not convinced should be bulldozed down. There are people in authority - I will refer to them in a few minutes - who are quite satisfied that rehabilitation or renewal programmes could be undertaken in some of the inner suburbs; that the housing areas that are to be demolished as slum areas could be renewed and made habitable by the expenditure of about half a million dollars. Yet in one case the Victoria Housing Commission is proposing to destroy 170 homes and to build in their place 4 blocks of flats, each of which will house 200 families.
The State Government is prepared to allow this development to occur within the centre of the city so that people can move in and look after the Nathans, the Myers and the other people who already have their businesses there. We can recall what happened when there was an exodus of people from the centre of the metropolitan area and the inner suburbs. There was a great howl from the business interests in Bourke and Collins Streets, or what is known as the Golden Mile, because the retail trade was going to businesses in the suburbs. The lobbying ability of those business interests in the Golden Mile with the State Government is obviously sufficient to ensure an increase in the population of the centre of the metropolitan area. The proof of that is the 20-storey high rise units that are now being built in that area to house families and people with young children who are not able to live in a normal suburban home and enjoy the kind of life that we believe everybody should enjoy.
This problem is worrying not only the working class and the Labor movement but. also people who have given a considerable amount of thought to these matters. The latest project to be announced by the Victorian Housing Commission involves going into the Fitzroy area and destroying 170 homes, as f mentioned earlier. This is an area in which the Victorian Chapter of the Royal Australian Institute of Architects is very interested. It believes that the area could be rehabilitated by the expenditure of about half a million dollars, that every home in the area would be able to be used and that there need be no destruction of any of the homes there. The Chapter has said that it is not a slum area and that it is in a pleasant environment. A newspaper report of its statement reads as follows:
The Housing Commission wants to acquire 16 acres in the area - bounded by Church, Reid, Rae and Nicholson -Streets.
About 170 homes would be demolished.
Several months ago the Fitzroy Residents Association spoke to members of more than half the households in the proposed redevelopment area.
Most were reported to have said they were happy there and did not want to move.
The Institute Chapter says the scale and arrangement of bouses in the area is intimate and involving.
The people are not living in sub-standard conditions, but are housed at a standard well above the minimum levels’, it says.
The Institute Chapter estimates the Commission could redevelop the area with 4 high rise blocks, each containing 200 flats.
This would cost about $!4m, it says.
For the same amount it could build about 1,270 houses in suburban areas.
The Institute estimates it would cost only $500,000 to conserve, repair or replace the 170 houses marked for demolition.
So the position in that area is that about $14m could be spent on building high rise flats that would provide accommodation for 800 families. By spending about the same amount of money on taking those people out to suburban blocks to live in an environment in which family life can develop in much more congenial circumstances, an additional 400 homes could be made available.
That is the type of planning that is going on in Victoria. That Ls the type of planning that will continue if we as a nation do not examine in greater depth the requirements of the nation as a whole, lt is quite obvious to people who have examined the situation that the high rise flats problems are huge and growing. The environment in which the people in those flats are living is such that normal family life is almost non-existent. We are creating the concrete jungles that have brought about the downfall of many people in countries on the other side of the world. It is not as though Australia is restricted in terms of the availability of land. When one goes to countries such as Japan and Hong Kong, where land is very scarce and some facilities are almost non-existent, one can understand why those countries have to move into high rise development. But in Australia that is not necessary at this point of time.
Some people may say that if family units are taken from the centre of Melbourne out into the suburbs the breadwinners will have long distances to travel to their employment. But there is still plenty of land within 6 or 8 miles of the centre of Melbourne which would be available for this type of development.
– I would like you to nominate it.
– In the Avondale Heights area plenty of land is available.
– That is more than 6 miles from the GPO.
– Well, about 8 miles. I referred to land within 6 or 8 miles of the centre of Melbourne. The district near Avondale Heights and out towards Laverton, the other side of Footscray, is where the newly developing industrial areas are, as Senator Little will realise if he drives through that area and sees the industrial development that is going on there. If we continue to build these high rise flat units within the centre of Melbourne we will probably finish up with a situation in which the workers living in them will have to travel further to their place of employment than if planned suburban development had been undertaken. I suggest that the position should be examined at a national level to ascertain what are the nation’s real housing requirements. We have an opportunity to undertake an examination now because no doubt at this time next year we will be debating a 5-year renewal of the Commonwealth and State Housing Agreement.
The first agreements between the Commonwealth and the States were made at the instigation of a Labor government, and agreements between the Commonwealth and the States have been made regularly ever since. At the time of the first agreements the main aim was to provide homes for rental for people in the lower income groups. Now it is almost impossible for people in Victoria to rent home units in single suburban blocks because all units that are built are offered first for purchase. This applies not only in the metropolitan area of Melbourne but also in the City of Geelong. If a purchaser for a home unit cannot be found within 3 or 4 weeks the unit is offered for rental, with the result that there is a long list of people in the very low income group who have been waiting for 2 or 3 years to rent a home. Those who can afford to purchase a home unit - good luck to them - are able in some cases to get a home reasonably quickly.
At present the only units being built by the Housing Commission are for rental purposes, and it is those units which are creating the problem. These are blocks of units in which as many as 2,000 or 3,000 people are living, where everybody is in everybody else’s kitchen, where the people on low incomes are worrying because they have nowhere to leave their children and nobody to look after them. In many cases both parents have to go out to work. The situation of people living in these conditions was highlighted by an examination carried out by the Melbourne Apex Club some months ago. Part of the findings were reported in the Melbourne ‘Sun’ of 5th September under a headline ‘High-Rise Problems are Huge’. It is obvious that the problems are huge. Investigators associated with this examination of the Housing Commission’s development area were overwhelmed by the huge problems facing parents in a Fitzroy high rise development area. The report states:
The investigators said: ‘We are overwhelmed by the huge problem which will face parents of children to be housed in this area.’
The report says there are unsatisfactory facilities for family recreation in all inner Melbourne’s high density residential areas.
In 1972, Fitzroy’s main Housing Commission development area would house 1,560 children. About 720 children would be of pre-school age.
About 550 people, including 206 children, were displaced by the Commission’s development,’ the report says.
A City Council creche formerly in the area had taken 55 children. The new creche next tothe Town Hall could handle only 65.
The sister in charge of the creche has already turned away 70 children,’ the report says.
The Park Towers building in South Melbourne was on a site which originally contained 64 dwellings housing 178 people.
The new 30-storey building housed 1,028 people. The number of children alone was more than double the total number of displaced people.
The total recreational facilities provided by the Housing Commission in the project are three traditionally-equipped play areas, a ‘rocket’ costing $2,000 and two bare -rooms on the ground floor,’ the report says.
The report is the result of a year’s study by members of Apex.
This report has been confirmed by a sister who is in charge of one of the creches and who is vitally concerned about the problems of the families living in home units in the high density flats area. At the top of the report which appeared in the newspaper is a photograph which obviously I cannot speak about tonight, but the newspaper gives a report of what the sister said. The article states:
The two children left on their own in high-rise flats hung on the creche gales and gazed sadly at others playing inside.
. . Until the sister in charge of the Fitzroy creche, Margaret Paine, rang the Immigration Department and reported the parents.
It’s a monstrous situation,’ Sister Paine said yesterday. ‘It’s criminal.’
She said the Apex Club’s report that she had turned away 70 children from the Fitzroy highrise estate was correct.
The report says that in 1972 there could be 720 pre-school children living in the estate and the creche catered for only 65 youngsters.
At the moment, we have room for only six children from the Housing Commission’s estate,’ she said.
I started a waiting list, but when it got into the 80s I decided it was time to call a halt.’
She said many families could not make ends meet unless both parents worked.
I know that some parents go out to work and leave young children on their own all day,’ Sister Paine said.
This is the kind of situation that is developing in the field of housing. But in addition to this aspect, the erection of high-rise flats in these areas is having an effect also on the cost of housing generally. We have reached a situation where as a national Parliament we should be examining this question at all levels. We should not he just handing out millions of dollars in loans, willy nilly, without making some kind of investigation or giving some kind of direction as to the way in which the money should be spent.
I am a director of 3 co-operative housing societies in the City of Geelong and we are finding it increasingly hard to make funds available to people who need homes. When we formed the first co-operative society our capital was $200,000, from which we were able to lend money to enable 29 persons to build homes which they would pay off. The second loan that we received was for, 1 think, the same amount, but with that we were able to provide for only 24 people to build homes. Recently under the Commonwealth and State housing arrangement we received $300,000 for a co-operative housing scheme, the money to be advanced over a 3-year period with $100,000 being made available each year. We find now that we are able to finance the construction of homes each year for 9 or 10 people only. This is because of the high cost of housing. This situation must be examined in relation to the inflation that exists. We heard inflation discussed in another connection yesterday during the debate on a proposal which was then before the Senate. We were told that inflation is not very severe in this country and that in many other countries inflation is at a much higher rate.
When we examine the field of housing we find that the rate of inflation is rising and that the position has now been reached in Victoria where the State Government has found it necessary to lift the limit on housing loans from $8,000 to $10,000 in many spheres, including the co-operative housing scheme area. The State Government has been forced to increase the loan limits to this level only because of the high cost of housing throughout the Commonwealth. Figures which have been supplied to me indicate that from 1968-69 to 1969-7(» the average cost of timber framed A.C. sheeted 1.2- square 3-bedroom homes increased by about $900. In the same period a timber framed home with varied patterned sheeting increased on an average from $8,330 to $9,1)0.
– What is meant by patterned sheeting?
– If the honourable senator asks the Parliamentary Library research people they will probably be able to tell him.
– 1 doubt whether the), can if they have put that in a document.
– That is the information it has given to me. Building costs for these homes have risen by more than $800 a year. Brick veneer seems to be the most popular type of construction today. People like to build a brick veneer home because of its comfort, and because the cost of painting them is negligible compared with that of weatherboard homes. The cost of this type of home has gone up by $1,000 in just one year.
Yet some people try to tell us that inflation is of minor importance. Apart from building costs continually increasing, this Government has been increasing interest rates. The increase in interest rates has caused the cost of a home to rise to a staggering level at the present time. Between 1966 and the present time permanent building societies increased their interest charges from 6) per cent to 7 per cent. To a person buying a home over a 20-year term, this means an extra $71 3 in total repayments. If the home is being bought over a 30-year term the extra cost is $1,197, and a home bought over a 40-year term costs an extra Si, 727. I do not propose to mention every scale of charges. It is my intention to request at a later stage that this document be incorporated in Hansard. When interest rates are increased from 7 per cent to H per cent, a home bought over a 40-year term will cost an extra $1,758. The 1 per cent increase in interest rates over the last 4 years - from 6i per cent to 7i per cent means that the purchaser pays an additional $3,485 for his home that he may have purchased some 5, 6 or 10 years ago.
The people of Australia have had confidence in the Commonwealth Savings Bank over the years. I will quote only one example of increased interest rates in connection with this bank because, as I said, I will have this document incorporated in Hansard. Over the last 5 years the interest rates of that bank have increased from 5i per cent to 6i per cent. As a result a person will pay an additional $4,204 for the home that he has purchased. This figure is based on an average loan of $10,000. The interest rates for other savings banks have increased from 5J per cent to 7 per cent. A home purchased over a 40-year term would cost an additional $4,250. Under the life assurance companies loan system interest rates have increased from 6i per cent to Ti per cent. On a loan taken out over a 40-year term, the increased charges would be $3,485. This is the imposition that has been placed on working class people in the community who have been purchasing their homes under long term agreements. After all, this is the only way in which the average working class person can hope to purchase a home. We have heard in this Chamber on many occasions that Australia is very proud that its home ownership rate is higher than that of most other countries. But what many people and the Government do not realise is that many of these homes are never paid for finally by the people who take out the contracts because they do not live long enough to meet the final payments.
With the imposition of these increased interest rates the purchase price of a home is getting further and further away from the average Australian. If we look at the increased monthly payments that home purchasers have to meet because of increased interest charges imposed on them by this Government, we find that a person purchasing a home through a permanent building society will pay an additional $3.59 per month when the loan is taken out over 40 years. This additional payment is due to the increase from 6i per cent to 7 per cent in interest rates. When the increase in interest rates is from 6) per cent to 7 per cent, the purchaser has to pay an additional $7.26 per month on a 40-year loan. On a loan obtained from the Commonwealth Savings Bank, with its interest charges rising from 5i per cent to 6) per cent, the increased monthly payment is $8.76, or an additional $2 per week. So to those who want to examine the situation, it is quite obvious that the high interest charges that have been imposed on these people are placing a heavy burden upon them. In many cases the total cost of their homes has increased by one third. People who paid £4,500 some 8 or 10 years ago are finding that they have an additional burden of $4,000 imposed upon them for the balance of the loan.
So we have to examine the whole situation in a new light. We have to examine a method whereby some kind of saving in cost can be created. We have to find a new system of construction - probably the modular system. Its implementation would not necessarily mean that every home would be a box, but it would cut costs. I must say that the Minister for Housing (Senator Dame Annabelle Rankin) has placed before this chamber an excellent booklet on standardisation of home construction. I have passed a copy of it on to a highclass housing builder in Geelong. He has nothing but praise for the recommendations contained in it. He believes that this is the type of thing that must come. This does not patternise home building. It does not mean that we will have thousands of little boxes in an area. It means savings to purchasers by standardisation of construction. I congratulate the Government on bringing forward this proposal. I hope that the State government will co-operate in ensuring that the standards that have been set at this level will be accepted.
I want to revert to the position of the Housing Commission in Victoria. In recent weeks the Commission and the Victorian Government have been under criticism for the sale of certain areas for development by private enterprise. I believe that this is totally wrong. If there is to be slum reclamation the Housing Commission itself should undertake it and not hand it over to private speculators who are looking for opportunities to make large profits. As a result of the South Melbourne deal in which the Commission sold an area that it had reclaimed under its slum reclamation scheme it has been disclosed that the Commission lost §269,000. This area has been handed over to a private enterprise company for redevelopment. 1 accept the fact that some loss has to be associated wilh a slum reclamation plan because the people who are living in the areas have to be compensated and the buildings have to be demolished if in fact slums exist. But- I cannot accept that, a State government should be able to sell its properties to private investors so that they can make a profit, because it is quite obvious that whatever private investors can do the Housing Commission has equal opportunity and equal ability to do without incurring a huge loss. Instead, it is allowing private enterprise to make huge profits. The disclosure which has emerged since the south Melbourne racket was discovered has shown that the Victorian Housing Commission has lost about $1.6m in similar deals over the last 8 to 10 years. I cannot accept this as a real approach to the problem. It is quite obvious if the Housing Commission can sell at a loss to private speculators it can do the work itself. It does not have to build high rise flat units to do it. If private enterprise can build a number of home unit blocks of 2 or 3 storeys on a nice little area in south Melbourne - I do not take any exception to that - surely the Housing Commission has the capacity to do the same.
This situation reminds me of what happened at the lime the Ford Motor Co. of
Australia Ltd left the Geelong area to develop its operations at Broadmeadows. The area the company took over was sold to it by the Premier of Victoria, Sir Henry Bolte. He sold Housing Commission land to the Ford Motor Co. which constructed the big factory which exists there for the assembly of Ford motor vehicles. Before the announcement was made about the sale of this land people closely associated with the Ford Motor Co. at Geelong - I shall name the area specifically - were able to buy tracts of farm land around the proposed factory area at farm rates or a little higher. After the announcement was made many thousands of pounds, as it was at that time, were made by those people who obviously had advance information that the Ford Motor Co. was going to the Broadmeadows area. That is the kind of trouble governments get into when they are involved in this kind of dealing. We had similar situations itv Victoria in relation to the Education Department. Land was handed from person to person. Rowville was a case in point. Each person involved was making a profit before the Education Department finally purchased the land for the development of the school. I believe governments have to be careful when they are moving into this field that they operate at a level where they reclaim slum areas and construct family units.
As I said earlier we have a situation now in Victoria where the population living in these areas are living in units which can only create slums of the future. Would any honourable senator in this chamber by choice take a wife and 3 children into a 20-sloried concrete building? Would anybody ask people to live their family life in these buildings? Of course they would not. The problems of looking after a family under those circumstances are so big that even the Apex clubs at this stage have moved into the field. They are closely examining the social problems which exist.
We have a situation in relation to service homes where an examination in broad terms should be made. We should re-orient our thinking to today’s world and not think in terms of regulations which were probably made in the 1940s for persons eligible for war service home loans. This should be part of the inquiry into the housing needs of the community. I have’ 2 cases to which 1 wish to refer. One case has been finally replied to in the negative by the Minister. Returned soldiers are being refused a loan on the basis that they live in remote areas.
– This Bill has nothing to do with war service homes.
– The loan is a war service home loan.
– No this is not a war service homes Bill.
– I know it is not but I am trying to relate my remarks to the necessity for a full inquiry into housing generally. I was careful in my opening remarks to say that this inquiry should embrace not only the Commonwealth-State housing agreements but also the position of war service home loans and even the homes savings grants. If I am ruled out of order I can say what I want to say on this matter until the debate on the Estimates. 1 ask whether the Minister would be happy for me to mention them now because I wish to make a few remarks in this regard.
– I am quite happy, but it is up to the Chair.
– I am prepared to talk about this matter because in one case we have a situation where a man has approximately 200 acres in the western district of Victoria. I have the right to use his name which is Mr Kilpatrick. The Minister knows of this case. Mr Kilpatrick has been asked not only to provide his home as equity but also 150 acres of land as an additional equity before a war service home loan will be paid to him.
– Where is the area?
– The area is near Dartmoor.
– But that is based on the fact of an economic living unit. The house is no good unless there is land associated with it.
– That is what the honourable senator is saying. I do not agree with that proposition. The position is that a new home to the value of about §10,000 to S 12,000 will be built on this area. The 150 acres is being asked for as equity. Because this person is 5 miles from the nearest post office he is being asked to provide double the equity which a person in the city is required to provide. He has to put 150 acres of his land on the line plus a home which will be valued between $10,000 and $12,000. This is not the horse and buggy days where it took 2 hours or li hours to travel to a post office 5 miles away. It is a matter of 6 or 7 minutes by motor car. People are buying these kinds of homes in remote parts of the State, if they are good and comfortable. They commute from one area to another even if their livelihood is involved. I will not accept the fact that there is not sufficient equity in the home and that the Department should have double the value of the home. I believe this is horse and buggy day thinking. This situation could be examined by a full inquiry. We have an obligation to examine the operations of the homes savings loans on which I will have more to say in the Estimates debate. Within the next 12 months there should be a broad examination of the housing needs and requirements of the community, how various housing operations are working not only in relation to Commonwealth and State agreements but also the war service homes and the anomalies which exist under the Homes Savings Grants. No doubt this legislation will be before us next year to renew another 5-year agreement. I support this Bill. The Australian Labor Party is not opposing the legislation that is before us now.
– The honourable senator may recall we made several amendments to the Homes Savings Grant Bill this year
Sentaor POYSER - Several amendments were made but the Minister is still tough on some people. 1 will talk about this matter on the Estimates debate.
– That is all right. I just remind the honourable senator that he supported the bill then.
– I have some specific cases in mind in which the Minister has been very hard.
– I cannot disobey the law. I have to abide by the law.
– The honourable senator had the cases and she has rejected them all.
– That is because they did not come within the Act.
– It is because the valuations made by the officers have been far too tough. But we will argue that point at another level. The Minister has been cruel to young people who have been trying to do something for themselves. She has been extremely tough. But I will raise this matter at another stage. In the long term I am asking for a complete examination of the housing needs of the community. An examination should be made of the requirements of the people who are being put into these high rise monstrous concrete buildings at the present time by the use of Commonwealth money. The Minister should talk to the States and say: ‘This is not the type of development required in this country’. If Australia had a pocket handkerchief area like Japan or Hong Kong I would certainly be in favour of those buildings.
An examination carried out by the Royal Australian Institute of Architects has clearly shown that for the amount of money that would be spent to build accommodation for 800 people 400 additional home units could be built on suburban blocks. The Institute of Architects is a responsible organisation, ft knows what it is talking about; it is not inexperienced in these matters. I believe it would be far better to put 1,200 people into a normal suburban area, each person having his own garden plot and some room, than to put 800 people into the inner suburbs of Melbourne to fill the purse of Sir Maurice Nathan, Myers, Coles and other people.
The ACTING DEPUTY PRESIDENT (Senator Laucke) - Senator Poyser, during your speech you intimated a desire to have certain material incorporated in Hansard.
– With the concurrence of honourable senators 1 incorporate in Hansard the following tables:
– I arn wondering .whether we are making a serious attempt to conclude the sitting of the Senate for the election campaign because, even though we are all in favour of measures such as the Loan (Housing) Bill, honourable senators talk about completely unrelated matters which happen to be in a field similar to that in which the Bill operates. This is a money Bill, which seeks to provide loan moneys to the States for the purpose of State housing projects.
The business of the State housing authorities and the types, the qualities and the quantities of the houses are totally and entirely in the hands of the States and have nothing to do with the Commonwealth. It is unfortunate that the. Minister for Housing (Senator Dame Annabelle Rankin), in her second reading speech, offended by referring to the housing of servicemen. She tried to build up an atmosphere of munificence around the lending of this money, suggesting that the Government was giving something to somebody and was conferring a tremendous blessing on the States. So narrow are the thoughts of members of the Opposition on the subject that they fell for the joke. Senator Poyser’s concluding words clearly illustrated that he was led astray. His speech was a generalisation on housing, on the type and quality of houses and on everything else in general. He said to the Minister: ‘It is your money’. Whoever heard anything so ridiculous in his life? The money is provided by the taxpayers. The Commonwealth channels it back to the States for the Commonwealth’s purposes.
– On loan.
– Yes, on loan. By interjection the honourable senator is now dealing with the Bill. Having spoken for 1 hour and having ignored the Bill, he is dealing with it nOw by way of interjection. He said that an important feature of the Bill was that the Government was providing money to the States at an interest rate of 1 per cent per annum less than the long term bond rate. When introducing the Bill the Minister spoke as though the Government out of the goodness of its heart, was conferring some charity or some great blessing upon the States. Our criticism should be of the spirit in which the Bill was presented. Of course the States are granted whatever they are prepared to request and think that they can manage, within the terms of their Budgets, for State housing purposes. Why is the money provided by’ the Commonwealth? It is provided by the Commonwealth because the Commonwealth knows full well that unless the building industry is stimulated and unless the States, which annually are starved of necessary resources, receive this money there will be no flow back to the Commonwealth of the necessary income tax that is paid by everybody who has anything to do with housing. In other words, the whole economy would flag and the Commonwealth would be in tremendous trouble if it did not provide this money. It adopts a pose of great generosity and of conferring a blessing on the States by making this money available at a fractionally reduced interest rate when it knows full well that the moment the money is made available for housing there flows back into the Commonwealth’s coffers a thousand times what it is lending to the States.
Part of the trouble that exists between the Commonwealth and the States today in relation to financial matters is that the Commonwealth is not facing up to the true picture. I do not know whether the Government knows this or whether it takes its advice from public servants and says: ‘We are being generous to the States? I tell the Minister that the Government is not being generous. It is fulfilling the necessary Commonwealth purpose. If it did not fulfil that purpose it would be a darn sight worse off financially. If the Commonwealth does not know that, it should consult its financial experts on the real issues and not on the superficial issues.
The Bill has nothing at all to do with the types, the quality and the quantity of houses that the States can provide. I do not know whether the Commonwealth has the power to interfere. Certainly it could set up a committee of inquiry of some kind to advise on what is the ideal situation. Probably all of us know the ideal situation. Whether it is applicable to a metropolis such as Melbourne or Sydney, which have already become far too widespread for the provision of normal services at an economic rate, is another matter. Sometimes these things become a selection not of what is ideal and not of what all of us would like. If we live in a suburban home - and I do - does not that clearly prove that that is what we think is the best? Of course it does. Whether that is practicable and whether a committee would decide that this is the best way to solve the problems, particularly in Melbourne and Sydney, associated with the provision of suburban dwellings in cities that have spread far and wide and that already are too big for the size and balance of population in the rest of this vast continent is totally unrelated to the Bill.
The Bill is a short one. It is almost a machinery Bill. It certainly does not justify the Government’s saying in relation to its handling of the taxpayers money - not its money - that it is giving away the money when it is lending the money to the States at a fractionally reduced rate of interest, knowing full well that when the loans for housing, are made available there will be development within the States and that because of all the ramifications of the building industry there will flow back into the Commonwealth’s coffers a return one hundred times the size of the gesture it is allegedly making to the States.
Those are my criticisms. I do not criticise the contents of the Bill but the misleading spirit and the boastful manner in which the Government has claimed that it is doing far more than it should be doing and that it is tremendously generous to those terrible people in the States, lt is the taxpayers’ money, not the Commonwealth Government’s money. My criticism is not of the Bill, The Minister might explain some things to me. I am a little puzzled as to why a populous State such as Queensland, which is so much larger than South Australia and Western Australia, should have requested such a modest sum. Perhaps Queensland is awake to the financial joke that is contained in this type of arrangement that has had to be forced on the States by the Commonwealth because of its dominating tax position and because the Slates have no access to any of the growth taxes which the Commonwealth raises. I hope, as everybody else does, because the matter is of paramount importance to the whole economy, that home building in the States will continue at as high a rate as possible. 1 do not know whether it would be adequate for the whole of the nation, but it is about all we can expect. The Bill makes such provision. The Democratic Labor Party supports the Bill, although it is of the opinion that the Bill has been presented in a camouflaged form and goes very close to being hypocritical in character.
– lt is not my intention to debate this measure at length, but I do wish to make one or two pertinent remarks about the hopeless housing situation which confronts the people of New South Wales. Elderly, middle-aged and young people have difficulty in securing finance in order to build their own homes. Once they have secured the finance to build their own homes they have great difficulty in paying off an instalment each month whilst at the same time retaining sufficient moneys to keep their properties in reasonable repair.
The Bill seeks to authorise the borrowing of moneys not exceeding Si 42.55m to be advanced to the States this financial year for housing in accordance with the provisions of the Commonwealth and States Housing Agreement. The Minister for Housing (Senator Dame Annabelle Rankin) said in her second reading speech that advances made to the States will be repayable over a period of 53 years and will bear interest at a mere 1 per cent per annum below the long term bond rate. As Senator Little has pointed out, the money which will flow to the Government over a period of years by way of income tax and so on from this advance will put much more back into the coffers of the Commonwealth than the amount originally advanced to the States.
– lt is not a gift: it is a loan.
– -It is certainly not a gift. Not only the States but also the people in them will be paying for it. No-one seems to be paying much attention to the very urgent and pressing problems which have arisen from the hopeless financial arrangement between the Commonwealth and the States on housing. One has only to move around the State which I represent, New South Wales, to realise that not only is there a crisis in the building industry but, indeed, that it is growing larger day by day. I certainly support the contention of my colleague, Senator Poyser, that a national inquiry is necessary to ascertain the actual shortage of homes in this country. An actuarial survey is necessary to ascertain the number of houses required in the next 50 years. It will be necessary to conduct such an investigation to ascertain the actual amount of money which will have to be spent on housing in order to overcome the present needs and to meet the requirement of the people of Australia in the future. Unless this is done the present critical situation will continue and, in fact, could worsen. 1 wish to direct my ‘ remarks to the position in the State which I have the honour to represent in this chamber, namely. New South Wales. Under this legislation some $50.3m will be made available to New South Wales this year by the Commonwealth Government for housing purposes. I am very concerned about the housing situation in New South Wales, as undoubtedly, all honourable senators who represent other States must be concerned about the housing situation in their respective States. We all know the great burdens which are being placed on home purchasers. Interest rates have gone up. Local municipal and water rates are soaring. We all know of the evidence which was taken by a select committee of the New South Wales Legislative Assembly, which delved into all of the rackets which are going on in the building industry. It found, among other things, that shoddy materials are being used in the construction of homes.
The road ahead towards the goal of owning their own home must be growing longer and longer for young married couples as the days go by. It certainly must make them more frustrated. More importantly, so far as their pocket is concerned, it is certainly becoming more costly. The average cost of a block of land has risen by some 180 per cent in the last 10 years and the average cost of building a house has risen by some 68 per cent. Senator Poyser mentioned the increased interest rates which have been imposed on these very earnest and genuine home seekers. One has only to look at one of the publications of the Commonwealth Department of Housing concerning the ways and means by which Cnance can be obtained for housing purposes to ascertain that interest rates range from 6i per cent in the case of the Rural Bank of New South Wales to anything between 8i per cent and 9 per cent in the case of some of the insurance companies. Whilst this urgent national problem is allowed to continue without anybody trying to come to grips with it, while there is a laissez-faire approach to the problem, and while it continues to be accepted as a fact of life that there must be and always will be a housing shortage costs will continue to soar because the supply is certainly not keeping up - indeed, year by year it is dropping behind - with the demand. In addition to those who, as yet. do not own their own home there are a large number of Australian families which are living in unsatisfactory housing conditions or are committed to paying rentals far beyond their financial means. Most people in the low income groups are unable to meet their family commitments and, at the same time, pay high rentals or, if they are successful in saving the necessary deposit, home purchase instalments under the most favourable conditions which they can find. In view of increasing land and construction costs and higher interest rates it is inevitable that a percentage of the population which finds itself in this unhappy position will increase, as it has continued to increase in recent years. The annual report of the Housing Commission of New South Wales for the year ended 30th June 1969, which is the latest report available in the Parliamentary Library, states that there was an increase in the intake of applications for assistance in the State of New South Wales - in only one State- in 1969 of 19,048 compared with 17,056 in 1968. In other words, there was an increase of almost 2,000 applications, which represents an increase of roughly 8 or 9 per cent. As at 30th June 1969 a total of 28,591 applications had not been satisfied. Waiting time in the Sydney metropolitan area is longer than elsewhere in the State. Indeed, it is probably longer than the waiting time for housing commission homes anywhere in Australia. The waiting period for elderly single persons is about 5 years. It is about 4 years for elderly couples. The waiting period of family groups which require 2 and 3 bedroom cottages is anything up to 3 or 4 years. Frankly, it is just not good enough that this situation should have been allowed to go on as it has gone on for so long.
Many young couples are living with their in-laws. Both go to work because they have to meet their family commitments and because they feel that they are entitled to what were previously regarded as luxuries of life but what are now regarded by modern society as being essentials. Young couples are desperately trying to save and put a bit away in order, to be able to put down a deposit on a home. At the same time their children are either being minded by their in-laws or, unfortunately, in a great number of instances are allowed to roam the streets until their parents come home from work. This is one of the very pressing social problems that confront Australian society today. As the cities expand and younger couples have to move to the outer environs of the cities to buy land that they can afford, the problems of servicing homes with essential services become more acute. People are travelling 50 miles from their homes each day to their places of employment to earn a living. They are forced to travel about 500 miles a week between their residences and places of employment because they must go that far out to buy a block of land on which to build a home. Of an evening after they have finished work they must travel 50 miles by train to go home.
What is the situation in regard to sewerage? A publication of the Institute of Public Affairs produced in September of this year points out that over 500,000 homes in Australian capital cities are unsewered. Of Melbourne’s 750,000 homes, only about 530,000 are sewered, about 150,000 have septic tanks and about 70,000 have a pan system. The home building rate of about 30,000 homes a year is well above the rate at which dwelling units are being connected to the sewerage system. Sydney has over 150,000 unsewered homes, some of which have been waiting for sewerage for about 50 years.
The publication goes on to say that Australia already lags well behind other Western countries in the provision of sewerage facilities. It sets out a table showing the percentages of urban homes sewered in the various countries. In the United States 98 per cent of urban homes are sewered; United Kingdom 98 per cent; West Germany 94 per cent; Canada 97 per cent: France 94 per cent; New Zealand 92 per cent; Sweden 88 per cent; the Netherlands 83 per cent; and Australia a mere 70 per cent. The problem does not stop at the finding of finance to build a home. Once the finance is found and a home is built, it is necessary to put away sufficient funds to pay off the home and keep it in a reasonably well serviced condition. So much for the essential services which about half a million homes in Australia’s capital cities do not have. I return to the report for 1969 of the New South Wales Housing Commission. The position remains very serious in the field of bousing for elderly persons who are capable of caring for themselves or of living alone if assisted only to a limited degree by domiciliary care.
Senator Dame Annabelle Rankin The honourable senator will recall that the Government made a great deal of money available last year for this purpose.
– Did you make it available to the housing commissions?
– To the Slates.
– That is the point I am coming to. How much has the Government made available? To what degree has it been able to cope with tb, demand? I suggest that insufficient finance has been made available to meet the housing needs of the elderly people in the community. 1 suggest that the Commonwealth has a responsibility greater than it has accepted to date in meeting the housing needs of our elderly citizens. These people have lived through wars and depressions. They have sacrificed a great deal in the interests of this country and are now eking out the twilight of their days on basic pension rates. I urge the Government to consider that aspect much more than it has so far done. It is vital that much more be done to overcome this tremendous social problem.
Let us turn our attention to New South Wales. On 27th August the Minister for Housing admitted in this chamber that the decline in the level of home building activity during the quarter ended June was principally because of the unavailability of finance and the rise in interest rates. Both of those matters are the responsibility of the Federal Government. The Minister went on to say that the number of dwellings commenced in the quarter ended September was likely to be little different from the number commenced in the quarter ended June in which there had been a downturn, for want of a better expression, of about 7 per cent, although there may have been a further decline in New South Wales. (Quorum formed.)
While this great backlog in housing development takes place and worsens, and it will continue to worsen under the existing haphazard arrangement, the unscrupulous people within the building industry and on its periphery will continue to be allowed to engage in all sorts of rackets in the provision of shoddy materials and shocking construction. According to an answer that was given to me by the Minister on 19th June, the Australian people owe home loans totalling about $3,744,000. I remind honourable senators that the average price of a house has increased over the last 10 years by 68 per cent, while the average cost of a loan over that period has risen by 182 per cent. Those figures emphasise the tremendous social difficulties ahead if the nettle is not grasped more firmly than it has been to date.
We hope that much more can be done, not only in the provision of housing finance but in all directions in the housing field by the Federal and State governments to protect the Australian people and particularly the man on the low income who is saving desperately to provide a roof over his family. These people must be protected from fly-by-night operators who have for so long existed in the housing industry. We do not oppose the Bill but we point out the inadequacies of the higgledy-piggledy haphazard existing arrangements between the Commonwealth and the States, as a result of which the Australian people are paying the piper.
Senator Dame ANNABELLE RANKIN (Queensland) (9.50) - in reply - There are a number of points to which I wish to reply. First I want kindly to chide my friend Senator Little because he took me to task for mentioning in relation to this Bill the housing of servicemen. He inferred that I meant something to do with some other legislation.
– That is the wording in the second reading speech. You referred to supplementary amounts which have nothing to do with the amounts that are there.
– I will explain this matter. Under the Commonwealth and State Housing Agreement up to 5 per cent of the money is made available for dwellings for servicemen. Under the Agreement that amount is matched by the Commonwealth. Therefore the money made available under the Commonwealth and State Housing Agreement to the States is relevant to this legislation.
– I thank you for the explanation.
– I felt 1 should put the honourable senator right.
– That has nothing to do with the war service loans.
– Not at all. These are dwellings for servicemen and they are part of the Agreement. Senator Little was quite right in saying that other honourable senators were departing from the Bill and he blamed me in a way for giving them encouragement. I wanted to clear that point.
– I was confused because I thought you were referring to war service homes. I am sorry.
– No, not at all. This has to do with the Agreement. It relates to a particular section of the Agreement.
– It is not so very significant. It is 5 per cent. I accept the explanation.
– We accept the apology.
– There is no need to apologise. I would like to continue with a few other comments. This Bill, as has been said, authorises borrowings of moneys not exceeding $142,550,000 to be advanced to the States during 1970-71 for housing in accordance with the provisions of the Commonwealth and State Housing Agreement. That is entirely what this Bill deals with. It is purely the advancing of this money. Senator Little also referred to the fact that advances under the Agreement are the taxpayers’ money. I point out that the moneys advanced under the Agreement are loan moneys raised under the Government’s borrowing programme as approved by the Australian Loan Council. The money is advanced by the Commonwealth to the States, as stated in the legislation, at 1 per cent below the long term bond rate. This concession amounts to a substantial sum over the 53-year repayment period.
– That is correct. You borrow it on behalf of the Australian people. It belongs to the people of Australia.
– I would like to continue. I have cleared up that point. Senator Little also referred to the amount that the Queensland
Government bad requested, namely $10,500,000. He asked why Queensland takes less by way of advances under the Agreement than do the other States on a pro rata basis. As all honourable senators would know, each State decides how much of its total allocation for works and housing will be spent on housing. This is the decision of the States. We understand that applications for Commission homes in Queensland tend to be rather less, on a pro rata basis, than in the other States. This is the amount requested.
The other day Senator Mulvihill raised a point which is, perhaps, a little away from the Bill but I would like to answer it. He raised the matter with me on another occasion and I thought I had cleared it up but apparently this was not the case.. He asked whether the Commonwealth should utilise the moneys received from interest and repayments of principal on war service home loans for further housing assistance. We have spoken about this on more than one occasion in this Senate. I thought all honourable senators knew that the receipts from repayments of war service home loans and interest are paid into the Consolidated Revenue Fund and are not specifically available for expenditure under the War Service Homes Act or for any other purpose for which the Department of Housing has responsibility. In effect these moneys become part of the general funds available to the Commonwealth for use in the way it considers most suitable haying regard to all the demands and calls made oh its resources.
In order, to make this point more meaningful 1 think I should point out that for many years past the Commonwealth has been providing funds for housing far in excess of the amount that it receives by way of repayments and interest on war service . home loans. In 1969-70, for example, the Commonwealth received a total of $77.4m in interest and repayments on war service home loans. But in that year it expended a total of $141. 7m in advances to the States under the Housing Agreement, including supplementary advances for housing of the defence forces. This comes under that section of the Agreement to which I referred when talking about the matching 5 per cent. The Commonwealth made available $55m in advances to persons eligible for war service homes; $ 12.7m in grants under the aged persons homes scheme; $12.3ra in grants under the Homes Savings Grant Scheme; $18. 3m for housing in the Australian Capital Territory; $ 10.1m for housing in the Northern Territory; and $l2.5m for sundry other housing projects. All told, the Commonwealth’s expenditure on housing in 1969-70 amounted to $262.7m.
The important thing to be concerned about is that within the limits of its role in relation to housing the Commonwealth ensures a proper flow of Commonwealth funds each year to the kind of housing activity for which it is responsible. We need not be too concerned about the exact way in which this money becomes available - for example, whether it is from loan raisings or taxation, or as Senator Mulvihill suggested, from repayments to the Commonwealth of advances previously made. The important thing of concern to all of us - and we al! realise the importance of housing - is that the money is made available when and where it is needed.
Senator Cavanagh said that under the Agreement the Commonwealth should exercise closer control over the quality of dwellings erected by State housing authorities. This kind of thing was mentioned also by Senator Poyser. I think I should explain to honourable senators that under clause 11 of the present Agreement the advances allocated to the State housing authorities must be used for the erection of dwellings of reasonable size and standard and primarily for families of low or moderate means. The Commonwealth does not seek to go beyond this and oversee directly the standard of construction of each individual dwelling, the materials used and the method of construction.
The State housing authorities, as all recognise, have been building houses and flats for very many years indeed. In South Australia, to which Senator Cavanagh and also Senator Laucke referred, the State Housing Trust has been in existence for more than 30 years. The housing authorities have the expertise, local knowledge of the design requirements in their respective States, and knowledge of the climatic and soil conditions that they need to take info account in building these houses. 1 believe that by and large the State housing authorities are doing a reasonable job and that overall the Commonwealth can be satisfied that homes of sound construction are being built for people of low and moderate means whom the Housing Agreement is designed to assist.
I think all honourable senators have mentioned, in one regard or another, the number of people on waiting lists for State housing authority homes. In reply to them I would say that the waiting lists of the authorities are not indicative of the overall housing situation in Australia today. The number of dwellings being completed in Australia adds more dwellings to the housing stock each year than are needed solely because of marriages and the arrival of migrant family groups in Australia during the year. We know that some of the dwellings being completed each year are holiday homes but even allowing for that the surplus is contributing towards an overall rise in housing standards by enabling some substandard homes to be demolished and by reducing the need for the sharing of dwellings.
This is not to say that there are not sections of the community, such as families on low incomes, which are facing hardship in obtaining adequate accommodation and which must look to the State housing authorities for assistance. The Commonwealth is concerned for the housing needs of the low income groups. That is why it provides assistance to the States by way of advances at a concessional rate of interest under the Housing Agreement - this was mentioned in my second reading speech and was recognised and referred to by honourable senators tonight - for the provision of housing for rental and also for sale on moderate terms.
The housing situation today should be viewed in its proper perspective. In each of the 5 years since 1965-66 the number of government and private dwellings commenced increased until it reached the all time high of 144,000 in 1969-70. The high level of dwelling construction in the last financial year 1969-70, when, as I have said, there was an all time record of 144,000 dwellings commenced, was financed in part by the sustained lending of banks and major life insurance companies. The value of loans approved by those institutions for new housing during the year was $3 07m compared with a slightly higher figure of $3 16m in the previous year. Despite the downturn towards the end of 1969-70 the total value of loans approved by the permanent building societies for new and previously occupied dwellings increased considerably during the year to $367m. As yet we do not have the figures for the September quarter of this year, but the indications are that a greater flow of loans for new housing from all of the major lending institutions occurred in that quarter than was the case in the June quarter. In broad terms I would say that the general balance of supply of and demand for labour in the building industry has not changed appreciably over the past few years and the situation remains one of substantially full employment. In view of these indications I was surprised that certain honourable senators - Senator Cavanagh was the first to mention this - suggested that the rate of home construction was not keeping pace with the increase in population.
I turn now to the figures relating to dwellings completed in recent years. In 1965-66 the number of government and private houses and flats completed was 112,766. In 1966-67 it was 111,892 and the number has increased steadily to 120,170 in 1967-68, to 130,687 in 1968-69 and to 140,819 in 1969-70. The 1966 census showed that the stock of dwellings in relation to the population had improved by comparison with the position at the 1961 census. In 1961 the number of occupied private dwellings, excluding hostels, boarding houses and other establishments offering public accommodation, was 264 per thousand of the population. By 1966 this had risen to 272 per thousand of the population indicating that the number of occupied dwellings had increased faster than had the rate of growth in population.
To determine whether this improvement has been maintained since then we would have to compare the increase in the stock of dwellings each year with the net increase in the population. This presents some difficulty because we have no firm statistics of the number of substandard dwellings that are demolished each year or of the number of completed dwellings that may represent holiday homes which are not occupied permanently. Nevertheless, taking Senator Cavanagh’s figures for 1968-69, the latest that he quoted - I was Interested in them - we find that the excess of births over deaths was 139,040 and the net migration gain was 126,424 making a net population increase of 265,464. The number of dwellings completed in 1968-69 was 130,687, which represents a ratio of some 490 dwellings per thousand increase in the population that year. Even allowing for demolitions and holiday homes, this would seem to indicate that the 1966 ratio of 272 occupied private dwellings per thousand of the population is being more than maintained. Those are important and interesting figures relating to the points raised by Senator Cavanagh.
Senator Cavanagh, Senator Poyser and Senator McClelland referred to interest rates on advances under the Agreement and I should like to refer to that aspect before I complete my comments. Under the current Housing Agreement, which has the assent of all the States, advances are made at an interest rate - this was mentioned in my second reading speech - which is 1 per cent below the long term bond rate. The fact is that this is a concessional rate. It is also a fact that at present the long term bond rate is relatively high, and consequently advances are being made to the States under the Agreement at an interest rate which is higher than many people would wish to see. Therefore it is important to understand the background against which the long term bond rate has reached its present level.
– Then why not do something about it?
-It is very easy for Senator Georges to talk in that rather airy fairy way. These points were raised and it is important that I should reply to them. Following 2 or 3 years of accelerating growth, not only in home building but also in almost all industries other than some sectors of our rural economy, the first half of 1970 saw unemployment fall to less than 1 per cent and registered vacancies exceed the number of registered unemployed. As might have been expected, that situation was accompanied by growing industrial unrest with costs and prices rising at too fast a rate. In the first quarter of this year the cost of a home was rising even more rapidly than was the cost of many other goods. These are matters which we need to consider. A temporary check to the growth rate of the economy as a whole, including the production of dwellings, obviously was needed. To have allowed prices to continue to escalate as they had been doing would have run counter to our aim of keeping home ownership within the means of as many families as was possible. We all know that this Government’s record in home ownership is a very proud one. Over 70 per cent of Australians cither own their own home or are in the process of acquiring it. We know how favourably that stands in relation to home ownership in other countries of the world. Therefore the Government set about effecting a slight easing in the labour market and slowing down the rate of cost increases. With purchasing power growing faster than the supply of goods and services there was a clear case for dearer money as well as a temporary tightening in the supply of money. Some increase in interest rates was necessary both to ease demand and to encourage more savings. The encouragement to save more is another very important factor.
Whilst no one welcomes high interest rates, especially on lending for housing, the Government has a responsibility for maintaining a balanced rate of economic growth without undue strain on resources, and it is in this context that a realistic assessment of current interest levels needs to be made. It is important for these matters to be given consideration in the discussion taking place here tonight.
There is just one other point to which I wish to refer. Senator Poyser is not in the chamber at the moment. He spoke about high rise buildings and the problems of families living in flats. I believe that they concern all of us who are interested in these matters. We appreciate the problems that face families living in this way. But we have to remember that in large cities today a certain amount of high rise development is more or less unavoidable if people working in the inner areas are to live within a reasonable distance. of their place of employment.I have noted the point raised in this regard because I. too, am concerned about the problems of families living in high rise buildings.I believe thatI have answered the points that were raised by honourable senators. I thank them for the contributions they have made. The points they have raised are ones which concern them and in which they are interested. I thank honourable senators for their support of the Bill, which makes money available under the Commonwealth and State Housing Agreement.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Consideration resumed from 22 October (vide page 1405), on motion by Senator Sir Kenneth Anderson:
That the Bill be now read a firsttime.
Question resolved in the affirmative.
Bill read a first time.
Motion (by Senator Sir Kenneth Anderson) proposed:
That the Bill be now read a second time.
Debate (on motion by Senator Willesee) adjourned.
Consideration resumed from 22nd October (vide page 1405), on motion by Senator Sir Kenneth Anderson:
That the Bill be now read a firsttime.
Question resolved in the affirmative.
Bill read a first time.
Motion (by Senator Sir Kenneth Anderson) proposed:
Thatthe Bill be now read a second time.
Debate (on motion by Senator Willesee) adjourned.
Consideration resumed from 22nd October (vide page 1405), on motion by Senator Sir Kenneth Anderson:
That the Bill be now read a first time.
Question resolved in the affirmative.
Bill read a first time.
Motion (by Senator Sir Kenneth Anderson) proposed:
That the Bill be now read a second time.
Debate (on motion by Senator Willesee) adjourned.
Motion (by Senator Sir Kenneth Anderson) - by leave - agreed to:
That so much of the Standing Orders be suspended as would prevent the question with regard to the remaining stages for the passage through the Senate of the following Bills being put in one motion at each stage and the consideration of all such Bills together in Committee: Stales Receipts Duties (Administration) Bill 1970. Stales Receipts Duty Bill (No. 1) 1970, States Receipts Duty Bill (No. 2) 1970, States Receipts Duty Bill (No. 3) 1970. States Receipts Duties (Exemption) Bill 1970 and States Grants (Receipts Duty) Bill 1970.
Debate resumed from 2 October (vide page 1400), on motions by Senator Sir Kenneth Anderson:
Thatthe Bills be now read a second time.
– These 6Bills have now been brought to the second reading stage. They have a long history. Their subject matter has been thoroughly debated in this place.
The public is aware of the whole history of it. Let me recount it very briefly. The States were imposing what have been known as receipts duties. The Western Australian Government was challenged by Hamersley Iron Pty Ltd, and that challenge was upheld by the High Court of Australia. Arising out of that, the Prime Minister (Mr Gorton) promised the Premiers that they would not lose revenue because of the invalidation of the Western Australian legislation. Legislation subsequently was brought before the Senate and it was rejected.
We intend to oppose these Bills tonight because of what we believe has happened in this regard. Because of the Commonwealth starving the States of finance, this is just another area in which the States have been forced into their limited field of taxation in an effort to make both ends met. We have seen this happen in such fields as rates, water charges, amusement tax and transport tax. Because of the continual pressures on the States as a result of the centralisation of the raising of finance in Australia, they have been forced more and more into a very limited field. This was not a field in which they were particularly interested, whether in the form of receipts tax or anything else: but it was a field in which they could gather revenue to supplement their budgets. We suggested at the time that if this was necessary the Commonwealth should make these moneys available. When we suggested that in June, the Government would not accept the suggestion but it seems to me now that that is precisely what is happening. I do not know whether the constitutional lawyers would have a harvest on this but I invite honourable senators to look at 1 reference in the second reading speech of the Minister for Supply (Senator Sir Kenneth Anderson). He said:
Business receipts during that period will be liable to duty under the Commonwealth legislation at the rate of O.t per cent, but this liability will not arise if the provisions of State laws - whether valid or invalid - are complied with.
It seems to me that in some way all that we are saying is: Never mind whether the law is valid or invalid; so long as the citizens comply, this Act is going to operate.
Another interesting point made in June by Senator Sir Kenneth Anderson was bis statement that the Commonwealth legisla tion must apply uniformly in all States and that there are innumerable differences in the detailed provisions of the existing legislation in each of the States. Queensland was paying a lower rate than was being paid in the other States, and evidently will continue to do so. But what seemed to be not possible in June will now become possible under this legislation. This legislation has a retrospective form, because ths period that we are covering has already passed. We are in some way validating - if that is not the wrong word - repayment to the States of money that citizens have paid, whether the legislation was valid or invalid, and this is to be continued for another 4 years. It seems to me that this is precisely what the Australian Labor Party said earlier would happen.
The Commonwealth finds now that it has to repay this amount of money to the States, and it intends to continue to do so for the next 4 years. The States fixed an amount that they intended to raise or did raise over a period by the imposition of receipts duties. Now an estimate is to be made of what the States might have raised by receipts duties over the next 4 years, and the Commonwealth is saying that it will now reimburse the States to that extent.
We have the situation now where the receipts duty legislation is again before the Senate, having been rejected previously. Some sort of agreement has been made between the Premiers and the Prime Minister or the Government and the net result, it seems to me, is that the States will have added to their normal reimbursement the amount of money which they estimate the receipts duties would have raised. This is another of those fields in which there has to be a complete review. The differences of opinion which come to the fore once a year are pretty well known, but those differences are forever simmering between the States and the Commonwealth. I agree that this is a very vexed situation. It is one which is not easy of solution but which must certainly be grappled with, particularly because of the uneven development between the States and various parts of the Commonwealth. The rate of expansion in Western Australia is twice the national average. The situation becomes complicated when a small Stale is expanding at twice the national average of all the other States, including the giants of New South Wales and Victoria. 1 do not think it is necessary to go over all the debate that we had last June. We merely say that it was a bad situation in Ihe first place. There are all sorts of worries about invalid taxes. This, 1 think, is an undesirable feature of bringing about extra payments from the Commonwealth to the States in this manner. To go into the matter further would be to re-hash much of the argument that we have had already. This is an issue which has had plenty of publicity and plenty of debate in this place. Anybody who is interested has had plenty of opportunity to study it. I content myself merely by saying that the Opposition will vole against this legislation as an indication to the Government that Commonwealth and State relationships should not be handled in this way.
– I propose to speak very briefly on this series of Bills. I understand that the 6 measures are being taken together. Their purpose is to validate the collection of receipts duties by the Commonwealth on behalf of the States up to 30th September 1970. As Senator Willesee has said, this duty was declared invalid when it was contested by some of the States. The Commonwealth undertook to collect the duty on behalf of the States but, as honourable senators know, the Senate did not agree to this and rejected the legislation in June. A new arrangement has been made for the Commonwealth to reimburse the States for a certain amount to compensate for what they will have lost through not being able lo collect this tax.
I should like to refer particularly to the position as it affects Queensland, lt was really a turnover tax, although it was called a receipts duty. It was to be charged at the rate of lc for each $10. The stamp duty which applied in Queensland was 2c for each $100. So this duty represents a five-fold increase on the original Queensland duty. Although Queensland passed a law to collect duty at the higher rate, the . law was never implemented. T. understand that the Queensland Parliament is in the process of repealing that law and that the Queensland Government has made a new arrangement with the Commonwealth. lt should be mentioned that the duty would have had some undesirable effects, perhaps more so in Queensland than in the other States. To businesses with a big turnover it would have meant a severe impost which I believe would have been passed on to the public. There would have been another undesirable effect in that the duty could have been charged several times on the one article. Because the charge was to be levied in the form of a turnover tax, as I understand the situation the tax could have been charged at the point of manufacture, at the point of wholesaling and again at the point of retailing. There was the further complication that between those payments of the tax a freight component could have been added to the price of an article. So we would have had the spectacle of the tax being charged each time a - freight charge was included.
Since the new arrangements have been made there has been some confusion about the duty in Queensland. As I have said, Queensland proposes to repeal the legislation imposing the duty, but the people of Queensland are not very clear as to the rate of stamp duty to be paid in that Slate. I believe that there should be some clarification of that point. No doubt it is a responsibility of the State to do this, but it should make the position quite clear to the people of Queensland. I support these Bills up to the point of validating the collection of tax until 30th September only, but not beyond that dale. That is all I have to say on the matter.
– It is not necessary for anyone to address himself at length to the Bills because the proposed ambit of the receipts duties legislation has already been before the Parliament, at which time this chamber in particular expressed an attitude towards the tax, the type of tax and (he incidence of the tax as originally proposed. The matter has been reconsidered by. the Government in circumstances which are now very well known, and the series of Bills which are being taken together in this debate are. presented for the consideration of the Senate. The second reading speech by the Minister for Supply (Senator Sir Kenneth Anderson) on the agglomerate Bills sets out why a number of Bills have to be presented - 1 believe one Bill more than were originally presented. Certain difficulties have been experienced. The new principle is not to exact in the States either the receipts duty which was formally declared to be unconstitutional or even such part of it as was legally and constitutionally and properly exacted by the States. These Bills now relieve the States and everybody else from the imposition of this tax altogether. In future it will not be imposed.
The second point is that amongst these Bills is one to validate the imposition of the tax until 30th September. The reason for that, of course, is a very practical one. When the Australian Democratic Labour Party had occasion to state its opposition to the principle of this legislation it took the very practical stand that in view of the complexity of any attempt to put the clock back and reimburse those who had originally paid the tax would be a practical difficulty and almost an administrative impossibility. For those reasons we were prepared to support the validation of legislation up till the date which is mentioned in the Bill and which is to be proclaimed by proclamation.
There is a constitutional reason why the matter has to be presented in that form. It goes back to a decision of the High Court in which it was found that it was possible to arrange for this type of thing only where the legislation was of a transitional character. Where it was not of a transitional character, on the interpretation of that High Court decision, it had to be done in another way. The method devised was this method of validating the legislation up to a date to be proclaimed. That is to give it a definite life and the termination of that life is to be at the date of the proclamation. The type of taxation was not good. It did not have a good principle embodied in it. I think it is a matter of national relief that in its wisdom the Government has seen fit to ensure that this type of tax is not imposed.
Of course, it does highlight the recurring difficulties in the financial relations between the Commonwealth and the States. It did impose a very big additional burden on the revenue of the Commonwealth which was then required to find the moneys which otherwise would have been collected for and on behalf of the States by the imposition of this tax and, coming late in the application of the financial scheme of the Government as embodied in the Budget, it was not an easy decision to make. But I think we are all grateful that the Government has seen fit and has found it financially possible to accommodate the lost revenue within the ambit of its own resources of money which would otherwise have been collected. (Quorum formed.)
The difficulties which have become evident in the discussions on the imposition of this tax subsequent to its removal and the alternative finance being provided to highlight the basic and fundamental problem of the financial relations between the Commonwealth and the States. This has been the subject of concern in the Senate, particularly to the Democratic Labor Party. We have placed on the private members’ business sheet in the Senate a motion that there should be a joint parliamentary committee to investigate the whole question of Commonwealth and State financial relations. We do not think that the position should be allowed to develop or to continue in its present form. Ultimately we will have to look at the basic problems involved in Commonwealth and State financial relations. But at this stage at any rate the State governments, having planned their budgets in anticipation of the receipt of this amount of revenue, will not have their budgets greatly affected, if affected at all. Now they will be receiving the revenue from the Commonwealth. If it is not in the same form, it will be in the same amount.
We in Queensland are particularly interested in and grateful for what has taken place. In a State like Queensland, with its vast distances, transport costs always add considerably to the base cost of a product. The accelerating nature of a tax such as this would have imposed a particularly heavy burden on those who live in the far flung parts of our State. It would have borne very unfairly on a section of the Australian community which at the moment is not in a position to bear such a burden. I refer to the primary producers. I am sure that with the multitude of their problems they are most relieved that they will not be required to pay out additional amounts on the purchase of goods as a consequence of the imposition of this tax.
There is little more to be said. Of course, we of the Democratic Labor Party hope that these Bills will have a speedy passage and that the moneys will then How through to the States where they can be put to such use as the States devise according to the revenue they receive. Ultimately this was an example of the solicitude or regard of the Commonwealth for the problems of the States. Originally the Government went to bat for the States at the request of the States. When the legislation was proved unconstitutional by the High Court, the Governmentfound it was unable to present its Bills in a form that was to the satisfaction of the Parliament. Then it discovered an alternative method of finance and, 1 suppose, in the operation of the federation, this is a practical way of solving the problem. We commend this series of Bills to the Senate, and we welcome their immediate passage.
(10.38) - in reply - I thank the Senate for the speedy passage of these measures. I think the most practical thing to do now is to put them to the vote.I understand the Opposition will oppose the second readings of this cognate legislation.
Thatthe Bills be now read a secondtime.
The Senate divided. (The President - Senator Sir Alister McMullin)
Majority . . . . 2
Question so resolved in the affirmative.
Bills together read a second time, and passed through their remaining stages without amendment, requests or debate.
Debate resumed from 26th October (vide page 1454), on motion by Senator Cotton:
Thatthe Bill be now read a second time.
– The Navigation Bill (No. 2) 1970, which is before the Senate, replaces a Bill which was passed in March this year. To that Bill the Senate gave a life of 6 months and it expired on 18th September. It is noted that the suggested amendments which were made at the time the original Bill was passed have been incorporated in the Bill which we have before us today. This Bill is to make provision for and in relation to preventing and dealing with the effects of pollution by oil of the Australian coast, Australian coastal waters and Australian reefs. Action to prevent the spillage of oil is fairly difficult except in cases like the ‘Oceanic Grandeur’ whereit was possible to pump the oil into another vessel and take it away. But in’ the case of serious marine accidents prevention is almost impossible. It is absolutely necessary that facilities be provided for cleaning up the oil or the prevention of any further pollution. Whilst the Bill does not deal with this situation it is pertinent to ask the Government: In these circumstances what kind of detergents does the Department of Shipping and Transport have available? Are they the right kind of detergents? When I speak of detergents I include dispersals.
– What is the difference?
– There is no difference but the trade thinks there is. The honourable senator would be aware that these are trade names. Like a lot of other commodities they are deceptively packaged.
– Like the Liberal Party.
– That may be, or the Australian Country Party. I put these questions to the Government. What research has been carried out as to the effect of thu various detergents on the various kinds of oil in order to find out which is the most effective? What is the effect of the use of the various detergents? Will the detergents be more harmful than the oil which is spilt? What is the effect of the detergents on the surface marine life and has it the same effect on the submarine life? If suitable detergents are available what quantity do we have? What facilities do we have for their manufacture in large quantities7 What research has been carried out on their toxicity? If suitable detergents are available are we satisfied that they are at strategic centres around the coast? Has any research been carried out to find the most strategic places to stockpile supplies? Have we learned any lessons from the disasters in other parts of the world? I ask this because it is well known that in the ‘Torrey Canyon’ disaster the detergents used were more harmful than the oil which was spilt. What did we learn from the Santa Barbara channel disaster? Have we sent any observers to any of these places to see what the facts are? 1 know that the Queensland Government sent one of its engineers to Santa Barbara quite a long time after the disaster had occurred. We have not seen any report from that officer as to what knowledge he gathered. Do we still think that a disaster cannot happen here despite the close shave we had with the ‘Oceanic Grandeur’ in Torres Strait? lt would be interesting to learn whether as yet we have become a party to the International Convention of 1954 and the amendments of 1962. I refer to the International Convention for the Prevention of Pollution of the Sea by Oil. I might also ask whether the Commonwealth has settled its differences with the States or whether we are to have a repetition of the conflict that occurred between the Commonwealth Government and the Queensland Goverment as to who should or should not control the spillage from the ‘Ocean Grandeur. What facilities have we available, if we have the detergents, to disperse them? Have we control over the necessary ships, the necessary pumps, the necessary aircraft, and perhaps helicopters or other means of spreading dispersants or detergents to break up spillages of oil? I think this is the kind of question that the Government has to answer. It has to find ways of doing these things so that the object of the Act, which deals with the effects of pollution by oil, may be achieved. All these things are required for that purpose. The Opposition does not oppose the Bill and hopes that it will achieve the purpose for which it is designed.
– I enter this debate because, like my colleague Senator Cant, I had a certain experience on one committee. He had the same experience on another committee. Firstly, I am a little surprised at the object of the Bill. Whilst I realise that we have to plug the gap, one or two things remain unsaid. The first deals with the legal tangle involving the spillage of oil from the ‘Oceanic Grandeur’. I was rather surprised to find that the Commonwealth Government and the Queensland Government have not expedited their claim for the $133,000 involved in the clean-up operations. The second matter about which I am equally concerned is that, although the Minister for Civil Aviation (Senator Cotton), in his second reading speech, referred to the urgency of the matter - I think that is reasonable enough - I cannot see any clear-cut statement as to what happens when damage is caused to small craft. The Minister will be aware that I have bombarded him over a period of time with questions about some of these minor spillages that have occured.
– I would not call it a bombardment. I would call it very intelligent questioning.
– I thank the Minister. I asked him a series of questions about Kurnell and Corio Bay. The Maritime Services Board has initiated certain legal action, but in discussions with small craft owners and also the ladies of the organisation known as MUCK concern has been expressed as to what the future will be. I hope the Minister will be able to enlighten me as to what coverage, if any. the small craft owners will have. Another point worries me also. I have to turn to the report of the Senate Select Committee on Water Pollution. The Minister will be aware that last year I had a list of spillages that had occurred on various sections of the Australian coastline. In relation to quite a number of them the notation read unable to detect the offenders’. It worries me whether a natural corollary to this Bill may be the institution of an Australian coastguard service. I believe we will have these hit-run minor spillages, all of which contribute to damaging the environment.
Other matters worry me. One is in relation to the scale of penalties. I notice that the Minister said that in the past people have expressed views and that they have been considered. The Minister will recall that one night during the debate on the motion for the adjournment of the Senate I had incorporated in Hansard some of the views of SenatorMuskie of the United States of America about what he called the pay first and argue afterwards policy. This was aimed at providing protection for small craft owners and some of the beaches. I would like to have these matters clarified. If Senator McClelland were here he would agree when I say that a lot of north coast and south coast shire councils have been perturbed about the lack of clear cut legal obligations on the oil companies concerned. Another point, which I do not see mentioned in the Bill and of which I know the Minister’s advisers would be aware, is that, assuming the Commonwealth has authority in relation to clean-ups, there seems to be no certainty as to whether the Commonwealth or a State instrumentality could direct an offending oil company to use the best dispersant or the best detergent, which might not necessarily be its industrial product. I know that the United States Coast Guard service has certain powers to enforce the use of a particular detergent or dispersant.I do not know whether this applies here.
I am conscious of the time and of the need for the Minister to reply. He is aware that when we debated the report of Senate Select Committee on Water Pollution I had incorporated in Hansard a statement by Senator Muskie about penalties. I questioned the Minister whether we have had regard to the Brussels Convention and to the scale of penalties it imposes. I have not gone too deeply into the relative monetary value of the$US1 and our$1, but I am inclined to believe that what the United States has suggested for penalties is much higher. The Water Quality Improvement Act of 1969 of the United States Senate had these headings:
Authority for immediate federal action to clean up any spill anywhere.
I assume that we have similar authority. The headings continue:
The Senate form of absolute liability for the clean up costs . . .
I imagine that is what we are seeking here.
The headings include this one:
Limits of recovery on absolute liability of $US100 pergross ton or $US 14m, whichever is less.
I would like the Minister to tell me bearing in mind the relative money values, whether our penalties are on a par with the United Stales penalties or whether they are more or less. The headings also include this heading: $US35m revolving fund to finance clean up.
I mentioned this matter to the Minister some months ago. I wonder whetherI could get some information as to whether our legislation goes that far. The United States legislation also refers to:
Expanded research to develop new clean up methods.
The Minister is aware that the liaison between the Maritime Services Board and the Minister for Shipping and Transport is not what it should be. I think Senator Byrne and his colleague from Queensland would know that a report has been tabled in the Queensland Parliament.It showed that the liaison between the Queensland Department of Harbours and Marine and the Commonwealth Department of Shipping and Transport was not what it should be. 1 leave those points to the Minister and will give him a break to supply me with answers.
– I wishto mention two matters. One follows what Senator Mulvihill said. The prospect of oil spillages off the Queensland coast, in particular, is a terrifying and continuing prospect. The legislation provides for compensation to be paid after the event. It is a step in the right direction, butI hope that the Government will look at some method by which it can lessen the possibility of oil spillages. It should endeavour to find an alternative route to the one between the coast and the Great Barrier Reef. One other matter whichI would like the Government to take a look at is the practice of oil tankers cleaning their tanks on a return journey. This practice is called butterworthing. I believe that it has occurred off the coast of Queensland.
The ACTING DEPUTY PRESIDENT (Senator Wood) - Order! In accordance with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
– I crave the indulgence of the Senate for a few moments to deal with a matter at the behest of the citizens of the Australian Capital Territory. I wish to make a plea on 2 issues. The Minister for Civil Aviation (Senator Cotton), who represents the Minister for the Interior (Mr Nixon) in this chamber, will recall that during a meeting of Estimates Committee D I took up the cudgels on behalf of the ornithologists in the Australian Capital Territory regarding concern which they had expressed to the House of Representatives Select Committee on Wildlife Conservation that the east end of Lake Burley Griffin, which could be defined as semi wet land area for bird life, was in jeopardy because of what I will call the bricks and mortar complex of the National Capital Development Commission. In fairness to Senator Cotton, I think I should say that at the time I appeared before the Estimates Committee the section of the estimates of the Department of the Interior concerning this matter had not been reached and I returned to the estimates committee of which I was a member to fulfil my responsibilities. I made further inquiries. Apparently the necessary information was not available. Senator Cotton did give me a host of material on other departments which came partially under his jurisdiction.
In the typical manner in which I usually operate I followed up my inquiry with a letter the next morning to the Minister for the Interior. I should point out that I am speaking with the full authority of the honourable member for the Australian Capital Territory (Mr Enderby). I did suggest to the Minister for the Interior that instead of a mere letter from him I should be afforded the opportunity of an on the spot investigation of the east end of Lake Burley Griffin with officers of the National Capital Development Commission. I think that most people in Canberra will agree with me when I say that this bricks and mortar complex can be overdone. I think I should say in all fairness to the Department of the Interior that I have been singularly fortunate in that I have had the benefit of extensive field surveys in the Mt Kelly, Nudgee Creek park areas and also at Jervis Bay. In this case of course the inspection would be within only a very short distance from Parliament House. I have not received any acknowledgement to my letter. I appreciate that we have been working at top pressure. However, I think I should point out that I have received quite a number of telephone calls and letters from citizens of the Australian Capital Territory who are very concerned about keeping this area virtually in its virgin state.
The second issue I wish to raise concerns correspondence I received from the Australian Capital Territory Branch of the Society for Social Responsibility in Science. This organisation linked itself with a very informative article which appeared in the ‘Canberra Times’ on 27th October. The substance of the complaint of this organisation is the possibility of a freeway being built on the northern shores of Lake Burley Griffin. This organisation makes the point - I know that my colleague Senator Devitt would be appreciative of it - that a line must be drawn somewhere. I notice that Senator Wheeldon who has an extensive knowledge of films is present in the chamber. The point I wish to make is that I think a line has to be drawn somewhere in any modern city as to the number of super highways which are built. It does not matter if a few motorists get home 5 minutes later or have to leave for work 5 minutes earlier. They should be prepared to put up with a little inconvenience rather than be freeway happy.
The office bearers of the Society for Social Responsibility in Science in the Australian Capital Territory are J. H. Hill, B. E. Hobbs, D. W. Hollomon and J. T. O. Kirk. These people feel that it is time that the line was drawn somewhere. I have an opportunity to discuss this matter with officers of the Department of the Interior during a meeting of Estimates Committee
– I will not take any more than 2i minutes. When I spoke last night and on a previous occasion about the problems associated with the estimates committees apparently I gave the impression that one of the clerks associated with the Senate was responsible for a certain incident which occurred. I have spoken to Mr Odgers about this matter today. My feelings are still hurt, but this does not enter into it at the moment. We have had difficulty in identifying the person concerned but I want to make it quite clear that it was not the clerk who was in charge of the Estimates Committee who offended me both mentally and physically. We have not been able to find out who it was. [ think this is quite understandable because of the targe number of people milling around on that day. However as far as I am concerned, the incident is forgotten. I make this statement by way of a personal explanation.
– Like Senator Mulvihill I am very interested in the bird life of Canberra and I have spent some part of my time observing it with some interest. I think it was very nice of Senator Mulvihill to refer to the historical experience of my friend and colleague, Senator O’Byrne - no doubt in the first Zulu war. I make this a lighthearted remark at the end of a very long day of discussion of things of great interest. Senator Mulvihill has a great interest in conservation and its problems. I appreciate bis interest in this subject. On a previous occasion 1 did arrange for him to make an inspection of certain problems in the Jervis Bay area. I do not see any reason why 1 should not exert pressure on this occasion in an endeavour to see whether it will be possible to give him an opportunity to look at the problems he has raised tonight in regard to freeways in Canberra. Perhaps they do inhibit some of the natural beauty of this lovely city. I shall certainly help the honourable senator in any way I can. He can count on me to do so.
Question resolved in the affirmative.
Senate adjourned at 11.10 p.m.
Cite as: Australia, Senate, Debates, 29 October 1970, viewed 22 October 2017, <http://historichansard.net/senate/1970/19701029_senate_27_s46_c1/>.