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Thursday, 22 April 1915


Senator PEARCE (Western Australia) (Minister of Defence) . - Senator Millen has asked a question about the new sub-clause to prevent the transmission of certain things abroad. It was found necessary to include the provision because the ordinary censor powers given in the principal Act had been found not to be sufficient. We have discovered that a practice has been followed of placing letters on neutral ships going to neutral countries, where they are posted to an enemy country. The letters do not go through the post in Australia, and, therefore, we do not get them under our censor powers. We need further power to be able to see such letters. Senator Millen has also referred to the attitude taken up by officers of the Defence Department, and by myself at a certain stage, in a case recently heard before the Supreme Court of Victoria. This matter came upon us somewhat hurriedly. Some of the orders are necessarily confidential and secret, and for a reason which I will explain. Under the Trading with the Enemy Act some orders have been issued in which the officer empowered to make the search has been directed as to what he should search for, and, in such direction, the names of firms under suspicion have been mentioned. For instance, an officer has been told to go down and search the premises of the firm of A, and been instructed, when making that search, to look for letters addressed to or from the firm of B, another firm in Australia, because some information has reached the Department that the two firms have been acting suspiciously in connexion with trading with the enemy. It may be that in making the search we are acting upon a mere suspicion, but the suspicion is of a sufficiently serious character to warrant us to_ direct the officer in searching the premises of A to try to find out what he can there about the firm of B. Perhaps the search has disclosed that, as regards B, there is no offence. Obviously, it is not in the public interest that we should be called upon to produce an order of that kind. Both honorable senators have overlooked the fact that, whilst these orders are issued in the various States by the District Commandant, they are not in the possession of the Head-Quarters Staff. Senator Millen knows very well that each district carries out its work, and that an order to do certain things is transmitted from headquarters to them, but when it gets to them it is the Head-Quarters Staff which instructs certain officers to do it, and directs the way in which they shall act. Therefore, when a case like the recent one occurs, it can be easily understood that these orders are not readily available at head-quarters, because they are not retained there. An order is kept in the district office. In the recent case, the request for the orders came somewhat hurriedly, and, knowing that many of the orders contained a direction such as I have indicated, it was deemed advisable that we should take up the attiude that we Should not be called upon to disclose the orders. That was the reason why, in the first place, a refusal was made to produce them. Then, when the case went over to the next day, and the question again came up that we should produce the orders, an opportunity was given to us to get them from the district office. They were hurriedly called for, less than half a day elapsing between our sending for the orders and our having to produce them. They were only able, on the spur of the moment, to find three orders, and each of the three we saw contained nothing to implicate anybody else. If, however, one of the orders had contained an instruction such as I have indicated. I think that I would have been acting in the public interest in refusing to produce the order.


Senator Millen - The lawyer appearing for the Crown said he was not producing the orders because they did contain information which, in the opinion of the Minister, should not be published.


Senator PEARCE - I am not concerned with what the lawyer said, but with the facts. First, we took up the position that we should not be called upon to produce the orders, and there was a good deal to be said in favour of that view.


Senator Keating - Then there would be nothing before the Court to show the authority of the officer to go into the premises.


Senator PEARCE - The question was whether the newspaper was entitled to publish the news which it did print.


Senator Keating - The defence was that the officer did go into the premises, and went in on the authority of the Department.


Senator PEARCE - It is quite conceivable that, arising out of the hearing of a civil case, some Court might command the production of orders which every honorable senator would say, when he knew the facts, the Department would be quite justified in refusing to publish during the war. If we were not at wax, the Department would not have such right, I freely admit; but, as Senator Millen knows, there are in existence orders which, if they could be called for by a civil Court, would disclose to the enemy - for a disclosure to the public is a disclosure to the enemy - the preparations made for the defence of certain important points in the Commonwealth. It might happen that on the question of trespass, on the question of a guard having the right to stop a man on a certain road, if we had to produce the order which necessitated that guard being placed there, it might disclose to the enemy our precautions for the defence of that point. That could easily arise. I say, therefore, that the time might well come when it would be in tho interests of the Commonwealth that the Department should absolutely refuse to produce an order called for in some civil case.


Senator Millen - I would suggest that the Department should look over the order first before refusing to produce it.


Senator PEARCE - Quite so, and also that time should be given .to enable that to be done. Senator de Largie asked a number of pertinent questions which have already had to be faced. Up to the present we have not taken over any factories. We have not taken over the woollen mills. We have merely taken over their output. The factories themselves are still under the management of their owners. They are simply turning over to us their total output.


Senator Millen - They are confining all their operations to making the stuff you want.


Senator PEARCE - They are making no other stuff.


Senator Millen - How will that affect their contracts to supply others?


Senator PEARCE - That was a point raised by Senator de Largie. He also asked what the position would be as regards wages in the factories taken over. I take it that even if we did exercise our power to take over a factory, that factory would be only in the position in which our own factories already are. There seems to be an idea prevalent, that because we take over the output of a factory, or even take over the factory itself, we are thereby called upon to revise the whole scale of wages, hours, and conditions of labour in it. I have pointed out in reply that the Defence Department is not an Arbitration Court. It has neither the machinery, the officers, nor the time to do arbitration work. There is an Arbitration Act and an Arbitration Court in existence, under which the employes of a Commonwealth factory can havetheir wages, hours, and other conditions of labour adjusted.I take it - of course this is only a sort of bush lawyer's opinion - that if we took over a factory its employes would be, for the time being, the employes of the Commonwealth, and have the same right as any other Commonwealth employes either to make an industrial agreement with the Minister, or to take him before the Arbitration Court, and get an award of the Court. The next question raised by the honorable senator was that of compensation. One of the Acts that we have passed provides that compensation shall be determined between the parties, or, if they fail to come to an agreement, shall be referred to a Judge of the High Court. That is the basis on which compensation will be treated. In the case of steamers requisitioned for transport, if there is no agreement between the parties, the matter has to go to an Admiralty Court, and the High Court for the purpose of dealing with ships in Australia, has Admiralty jurisdiction. We have endeavoured to deal with the question of price on this basis: We had in the Department tendered prices for woollen materials in various forms. During the last few months there has been a substantial rise in the price of wool. Fortunately, we have in our employment a Mr. Smail, the manager of the Woollen Mills at Geelong, and he has during that period been buying wool for the Commonwealth, with a view to commencing operations at Geelong. He is a highly-qualified man, who knows the quantity of wool that goes into a yard of material, and he was able to advise us as to the relative increased cost of a yard of cloth caused by the rise per pound in the price of wool. Wo have adjusted the prices by adding to the lowest tendered price of some two or three months ago, a proportion based on the rise in the price of wool. The prices we have now agreed upon, which are universal throughout Australia, are adjusted in that way. Mr. Smail knew the process through which the woolwould have to be put, and what proportion of waste there would be before it reached the cloth. Another difficult question was that of contracts. A number ofwoollenmillsand others had contracts to supply private firms. We went into the question with the Crown Law authorities, and were advised that if we requisitioned a factory or its output we, by that act, relieved the firm of any legal liability to the person with whom they had contracted - that he could not then sue them for not supplying the goods which they had undertaken to supply under their contracts. These are all very interesting and exceedingly difficult questions, and that is the way we have endeavoured to meet them.


Senator de Largie - They are questions which caused a good deal of trouble in the Old Country.


Senator PEARCE - Undoubtedly, and we have had to face them here. I can assure Senator Keatingthat it is not my desire that the military authorities here should get that lust of power which has really been the cause of the present world-wide war. We do not want German militarism here, and I shall certainly set my face against any unrestrained use of these powers. We are forging here a very formidable instrument which might easily become most dangerous unless wisely and carefully exercised. Of course, asthe Allies become more successful, as the position of the Empire becomes more secure, we can relax these powers, until the time comes, which we hope will be soon, when the whole lot of them will be swept into the waste-paper basket. There is a fairly good safeguard in this respect, that the principal order which gives the right to take certain action has to receive the assent of the Governor-General in Council, which, broadly speaking, means the Government. The actual order to carry out that action, once the main order has been given, will rest with the Commandant of the State, or the Military or Naval Board. The Ministry must take the responsibility of their acts, but as Parliament is sitting it is not likely that the Minister would court trouble by giving his Naval or Military Board, or his naval or military advisers, unlimited power, nor does the necessity for any unlimited power exist. The military have sometimes been unjustly criticised. For instance, when certain searches were being made there was some criticism of the use of soldiers for the purpose. It was asked why the police could not have been used. In the first place the police are fully engaged with their own duties, especially in time of war, and are not readily available for military purposes. I would ask honorable senators to take their minds back to the state of public feeling at that time. There was a considerable amount of resentment against the German section of the community; much more than exists at present. It was rather an exaggerated feeling, and one can easily realize that, especially in some of the bigger cities and in some of the more populous streets, if it had been known that a search was being conducted of the premises of some of the firms suspected of having traded with the enemy, public demonstrations might have taken place against them, and lives and property might easily have been lost. In such a case an armed guard might have been essential. If the searches had been conducted without an armed guard, and the premises of an innocent person who was wrongfully suspected had been wrecked and lives lost, people would have gibed at the Defence Department for not providing an armed guard to prevent it.


Senator Millen - I think the public temper was extremely patient and tolerant.


Senator PEARCE - There was also a time when the public temper was a little hysterical. The suspension of the right of civil trial for civilians would undoubtedly take place only under exceptional conditions. It is not intended that that power should operate in ordinary circumstances, and I can assure the Senate that I shall see that it is utilized only under exceptional conditions, which I trust will not arise. The German fleet might break out, and there might be a raid on some portion of our coast. It might then happen in some cases that we should have to exercise our power of court martial. I am not so optimistic as to believe that all the friends of Germany are inside our concentration camps or outside of Australia. It is quite possible that some civilian friends of the German cause are at large here, and if a favorable opportunity occurred, they might take some action detrimental to our country. We should have no civil Court to deal with them, and should have to take the extreme step of suspending the right of civil trial and dealing with them by court martial. I am sure that if that happened public opinion would indorse our action.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clause 1 agreed to.

Clause 2 -

Section four of the principal Act is repealed, and the following section inserted in its stead : -







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