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Thursday, 31 October 1912

Senator NEEDHAM (Western Australia) . - I do not like this- amendment, andI think that the interjection of Senator Gould to Senator Rae supports the contention which I am about to make. That is, as to the danger that may accrue by the owner of Australian vessels registering outside Australia, and nullifying absolutely the legislation which we are passing in the interest of the Australian people to govern Australian shipping. That is the danger which I see in the amendment. The object of this measure, which has engaged the attention of the National Parliament for the last eight or nine years, is to place the condition of Australian seamen on the highest plane, and at the same time to conserve the interests of the owners of ships, and safeguard those who travel by sea ; but if we calmly submit to this amendment, which provides that the measure shall only become law after the assent of the King has been given, our work for the last two years goes absolutely by the board. It will be wise for the Committee to consider the effect of the House of Representatives' amendment before assenting to it. I agree with Senator Rae, that if we carry the amendment we shall be recognising the supremacy of His Majesty, and the Imperial Parliament, upon a matter over which we ourselves ought to have supreme control.

Senator St Ledger - We must have foreign trade here, and we cannot control foreign shipping.

Senator NEEDHAM - I admit that we cannot control foreign shipping ; but I contend that when a foreign vessel is trading in- Australian waters, our legislation should be supreme over her.

Senator St Ledger - The Bill is regarded by some as going beyond that.

Senator NEEDHAM - As Senator Gould has observed, the Bill is split into two parts. It is said that we have only control over those vessels which are Australianregistered, and which trade in Australian waters, and have no control over every other vessel that comes into our waters. I hold that if our Constitution is such that we cannot put this legislation into force without the assent of the Imperial Parliament-

Senator Pearce - Not of the Imperial Parliament, but of the King.

Senator NEEDHAM - The Minister of Defence need not be told that "the King knows just as much about shipping as any one of us, and that he only acts on the advice of his Ministers.

Senator Pearce - They are not the Parliament.

Senator NEEDHAM - Just as, in the Commonwealth, the Governor-General only acts on the advice of Senator Pearce and his colleagues, so in Great Britain the King acts on the advice of his Cabinet.

Senator Guthrie - And of the Board of Trade.

Senator NEEDHAM - He is also advised, I presume, by the experts, or alleged experts, of the Board of Trade.

Senator de Largie - They do not advise the King at all.

Senator NEEDHAM - I agree -with Senator Rae that if we concur in this amendment, we shall be limiting our powers. If it can be proved that we have to go to the King and say to him, " Please, sir, can this legislation of ours be operative over Australian shipping?" the sooner the people, by referendum, alter the Constitution, the better it will be.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [3.16]. - It is just as well that honorable senators should realize exactly what the position is. Whether we think the position a good one or not, we have to accept it. The Commonwealth legislates under the authority of an Imperial Act. We can not go beyond the powers granted to us by the Imperial authorities. In the first place, it is as well to realize what our powers really are. Turning to the Merchant Shipping Act of 1894, we find that there are certain powers of Colonial legislation defined. Section 735 reads -

The Legislature of any British possession may by any Act or Ordinance, confirmed by Her Majesty in Council, repeal, wholly or in part, any provisions of this Act (other than those of the third part thereof which relate to emigrant ships)' relating to ships registered in that possession.

That is to say, we may alter the law as set out in the Imperial Act dealing with the accommodation, rates of pay, and so forth.

Senator Guthrie - Is not our Constitution of later date than the Merchant Shipping Act of 1894, and does it not override that Act ?

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - The power which I . have quoted is limited -

Any such Act or Ordinance shall hot take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed, by the Act or Ordinance for the purpose.

Then the Merchant Shipping Act provides in section 736 -

The Legislature of a British possession, may, by any Act or Ordinance, regulate the coasting trade of that British possession, subject in every case to the following conditions : -

(a)   the Act or Ordinance shall contain a suspending clause providing that the Act or Ordinance ' shall not come into operation until Her Majesty's pleasure thereon has been publicly signified in the British possession in which it has been passed;

(b)   the Act or Ordinance shall treat all British ships (including the ships of any other British possession) in exactly the same manner as ships of the British possession in which it is made.

So that, in the first place, under the Act of 1894, our powers were very much limited. I come now to the Commonwealth Constitution, which, in section 5 of the covering sections, provides that -

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are within the Commonwealth.

Whilst that section enlarges our powers, it also shows that our powers are clearly restricted in regard to navigation. .

Senator Guthrie - What, in the honorable senator's opinion, is a ship's first port of clearance?

Senator Lt Colonel Sir ALBERT GOULD - If a ship leaves Sydney for Melbourne, her first port of clearance 'is Sydney; but if she is leaving Sydney for Fiji or America, she does not come within our jurisdiction, as far as Commonwealth law is concerned.

Senator Guthrie - Her first port of clearance is Sydney.

Senator Lt Colohel Sir ALBERT GOULD - But we must have regard to the words "whose first port of clearance and whose port of destination are within the Commonwealth."

Senator Rae - Suppose a ship came to Sydney from a foreign country, could we impose our conditions upon her ?

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - Only as far as they were applicable in our own waters. We could not do anything beyond that. What we want to do in this Bill is to provide, as far as our coasting trade is concerned, that our ships shall conform to Australian conditions. The question is whether we are not going . beyond the powers given to us by the Constitution. We have to turn back to the Merchant Shipping Act to see if it will help us in any way, and we find from it that we have no power to deal with anything beyond our own coasting trade.

Senator Guthrie - That is absolutely wiped put by our Constitution.

Senator Lt Colonel Sir ALBERT GOULD - We have, under our Constitution, certain powers, but they do not carry us beyond Australian ports. They may affect the trade between Australian ports, but they do not apply to a ship going outside Australian waters.

Senator Guthrie - Where is there anything in this Bill that does apply in such a case?

Senator Lt Colonel Sir ALBERT GOULD .- The Bill itself, in regard to Aus-' tralian shipping, provides that an Australian trade-ship is one that goes from Australia to any other port in Australia, or to New Zealand or to Fiji, showing clearly that we are trying to- go beyond our powers.

Senator de Largie - There is no limitation in the Constitution on our making any laws we like for the Commonwealth.


Senator de Largie - Why should we be restricted when a- ship leaves Sydney or any other Australian port?

Senator Lt Colonel Sir ALBERT GOULD - For the simple reason that there are words in the Constitution which- provide for Our laws being in force on ships " whose first port of clearance and whose port of destination are in the Commonwealth." Beyond that, I contend, we have no power to deal with navigation.

Senator de Largie - The honorable senator contends that we have no control over a ship leaving Sydney for some foreign port?

Senator ALBERT GOULD (NEW SOUTH WALES) -CoIonel Sir ALBERTGOULD. - We have control over her as far as Australia is concerned. Whether I am correct in my contention or not, I hold that under our powers we cannot deal' with matters the effect of which is to alter the Merchant Shipping Act, even with regard to our own coastal, trade, until approval has been given by the King. It is abundantly clear that we are tampering with questions with 'respect to the accommodation to be given to sailors, and a multiplicity of other matters provided for in the Merchant Shipping Act, in such a way as to require the assent of the King to the legislation which we propose to enact. .

Senator Keating - Did not the sections from the Merchant Shipping Act, which the honorable senator quoted, apply only to the coasting trade?

Senator Lt Colonel Sir ALBERT GOULD - No; section 735 deals with shipping more generally. Under this Bill, I contend that we are practically repealing portions of the' Merchant Shipping Act, and enacting other provisions which go. beyond the powers given to us in the Constitution.

Senator Keating - The honorable senator holds that it is because the Bill goes beyond covering section 5 of the Constitution that the King's assent becomes necessary?'

Senator Lt Colonel Sir ALBERT GOULD - Yes; but, at the same time, we are dealing in this Bill with things that we could deal with without any restriction, if we saw fit. We are combining them in the same measure with matters which require us to get the King's authority.

Senator Guthrie - What are those several matters?

Senator Lt Colonel Sir ALBERT GOULD - I have instanced the provision in regard to Australian shipping going to New Zealand or Fiji, territories which are beyond our control.

Senator Guthrie - Have we not power to deal with such ships when they are in our waters ?

Senator Lt Colonel Sir ALBERT GOULD - I admit at once that, as far as we act within the powers conferred by the Constitution, and deal with ships trading within Commonwealth waters, we are within our rights. But we are going beyond those powers in providing that an Australian ship is one that trades to Fiji, and must conform to the provisions of this measure with regard to accommodation, manning, and a number of other things.

Senator Guthrie - Are there not provisions in the Merchant Shipping Act relating to the coast of Great Britain ?

Senator Lt Colonel Sir ALBERT GOULD - But the Imperial authority is a supreme authority, and can make any laws it thinks fit. We are only a subordinate authority. However much we may flatter ourselves that we are a growing nation, weare a subordinate authority as far as Imperial jurisdiction is concerned. The Imperial authority might, if it were thought fit, render any other Acts nugatory, though, of course, it would not do such a thing.

Senator Rae - If a ship left Sydney for New Zealand or Fiji., intending to make a round trip,and come back to Sydney, would not her first port of clearance and her port of destination be within the Commonwealth ?'

Senator Lt Colonel Sir ALBERT GOULD - I doubt whether a ship would clear in that way. She would clear for Fiji, and when at Fiji would again clear for an Australian port. I do not raise thequestion of our competency as far as concerns ships in Australian waters.

Senator Rae - Such a ship, would only be engaged in the coasting trade.

Senator Lt Colonel Sir ALBERT GOULD - Yes; and that trade is within our control. But when we want to go beyond our coastal trade, it becomes necessary to secure the authority of the KinginCouncil, by virtue of the Merchant Shipping Act.

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