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Friday, 21 May 1915

Senator NEWLANDS (SOUTH AUSTRALIA) . - Senator Millen has pointed out, very effectively, a point in which I think that the clause is defective. The Bill leaves it purely optional with a contractor, at any rate in Australia, as to whether he shall apply for the annulment of his contract or not. I have no doubt that in Australia there are many persons - shareholders in mining propositions and other commercial undertakings - who are not anxious to have a contract annulled. We know, unfortunately, that persons are very largely guided in matters of this kind by their personal interests. Therefore, I think we would have no difficulty in finding here plenty of persons who would not be very keen to terminate a contract with an enemy country.

Senator Russell - Look at sub-clause Tj, of clause 3..

Senator NEWLANDS (SOUTH AUSTRALIA) - I am not satisfied with the sub-clause, and intend to indicate exactly where, in my opinion, it is defective.

Senator Millen - The proof that subclause 5 is not sufficient is that there are other sub-clauses. If it were allembracing, the clause would not contain the others.

Senator Gardiner - It embraces the point which you brought up.

Senator Millen - No.

Senator NEWLANDS (SOUTH AUSTRALIA) - I am anxious to secure the insertion of some words which will compel every person who has entered into a contract with an enemy country to come under the provisions of the Bill, and not to leave it optional to one party to terminate a contract, and to another party to continue a contract, or to have the contract restored when the war is over. Every person who comes under its operation should be placed on precisely the same footing. Senator

Millen referred to the present method of dealing with interned vessels, and he objected to this matter being left in the hands of the Attorney-General. The Prize Court has been well established for many years, but this is the first time, so far as my reading goes, that a Parliament in Australia has been asked to consider a measure of this kind. I have no fear in handing over to the AttorneyGeneral the right to void an enemy contract; I believe that the interests of contractors would be safeguarded to a greater extent by leaving the matter in his hands than otherwise they would be, because the Parliament could always exercise over the Attorney-General a control which it would not have over a Prize Court or a Judge.

Senator Needham - And it would be a cheaper process, too.

Senator NEWLANDS (SOUTH AUSTRALIA) - It would be a cheaper, and, I think, a safer process, because, if the Attorney-General was likely to do anything detrimental to the interests of Australia, or of any of its people, Parliament would call him to book very quickly, whereas in the case of a Prize Court or a Judge, Parliament would not have that power. I see no danger in intrusting to the Attorney-General the duty of dealing with enemy contracts as set out in the Bill. In clause 2 an enemy subject is defined, and in subclause 1 of clause 3 we have a definition of what constitutes an enemy contract. But in sub-clause 2, for the first time in the Bill, an enemy contract is referred to as "a contract." Senator Keating has raised the point that in every portion of the measure a contract should be defined as an enemy contract, because he, as a lawyer, knows that immediately an Act is placed on the statute-book, certain persons will want to take advantage of it. If a loophole is left in this measure for an individual in Australia to get out of an unprofitable contract with another individual, he will come under its provisions if he can. Senator Keating will agree with me, I am sure, that such a person will employ the best legal talent in the Commonwealth to attain that object. I am at one with the honorable senator in endeavouring to stop the gap. In subclause 2 we can make a beginning in that direction, and I suggest to the VicePresident of the Executive Council that the word "enemy" be inserted before the word "contract" in the first line, and so deal with a contract as an " enemy contract. ' '

Senator Millen - No; it does not become an enemy contract in law until after the Attorney-General has declared it so.

Senator NEWLANDS (SOUTH AUSTRALIA) - That is so. The difficulty I see is that one person may apply to the Attorney-General to have a contract annulled, and another person may oppose the application because of certain interests he has in the contract. I am, of course, willing to defer to the opinion of legal gentlemen as to whether the insertion of "enemy" in sub-clause 2 is necessary or not; but I fail to see how the Bill can be made to apply to enemy contracts only unless there is a specific reference to enemy contracts in its provisions. In the same line I think that " may " might with advantage be altered to " must."

Senator Needham - " May " is always construed as mandatory.

Senator NEWLANDS (SOUTH AUSTRALIA) - I do not think it is. At any rate, here is a door through which persons who do not desire to annul their contracts may escape, thereby putting one section on a better footing than the other. If, however, "must" was substituted for ' ' may ' ' it would compel every contract entered into with an enemy country to be dealt with under the provisions of the Act. I am most anxious that every such contract shall be absolutely annulled, and I desire that the Bill shall not leave the Senate until we have effectively annulled every enemy contract whether those who entered into the contract desire its annulment or not. That is my only object in addressing the Committee. The duty of the Minister, I think, is to leave no loophole whereby any person can escape. I am sure that Senator Keating will give us the legal assistance he has indicated he is anxious to give in perfecting the measure in the direction I have indicated. I am not finding fault with the Minister for introducing the Bill in the manner he did. My complaint is that it is not as emphatic and clear as I would like it to be in doing what I desire and that is annulling every enemy contract in the country.

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