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Tuesday, 11 October 1910

Senator ST LEDGER (Queensland) . - As to the difference between anAustralian citizen and any other person who has signed articles on board a ship, the position is clear. An Australian who has signed articles to serve on board a foreign ship may, on arriving at a port in this country, break those articles and go scotfree. But a Britisher, not being an Australian citizen, who has signed articles, is liable to be brought before a Court of law in Australia at the instance of the master or owner of a ship, and may be forced to go on board and complete his articles. Thus, an Australian and a Britisher, who does not happen to be an Australian, will be treated differently in a British Court of law. It must be remembered that every one of our law Courts is British. It derives its power to administer die law, not from the Commonwealth, but from the Imperial power, which has conferred upon us the right to exercise justice under British law. Our Constitution itself, from top to bottom, derives its jurisdiction legally and politically from the Sovereign. Our power to set up tribunals for the administration of justice is British, root, branch, and stem, and especially at the roots. Yet, here we shall have the spectacle of an Australian appealing to an Australian Court, which is still a British Court, receiving one course of treatment, whilst a Britisher appealing to the same Court will have another course of treatment meted out to him, because he does not happen to be an Australian. He appeals to the very same law, at the very fountain of justice, and different treatment is accorded to him. In practice, that is what this clause will amount to. We shall have as grave a scandal as was caused when we stuck up the six hatters here.

Senator Turley - Who were never stuck up.

Senator ST LEDGER - Archbishop Whately, the great logician, succeeded in proving to his own satisfaction that no such man as Napoleon ever existed, and it is quite possible that honorable senators opposite, by a similar process of reasoning, may prove to their satisfaction that the six hatters were never stuck up.

The CHAIRMAN - I ask the honorable senator not to elaborate that point.

Senator ST LEDGER - Say what we like, this proviso will be a reproach upon the Australian Legislature. The Minister tacitly acknowledges this, because he can produce no precedent in international relations, so far as maritime law is concerned, for a clause of the kind. There is another point that I should like to raise, and which no previous speaker has touched upon. It is an important point, and closely relevant to the clause. I ask the Minister - on whom will the onus of proof lie in the case of an assertion of Australian citizenship? Suppose a Britisher does not want to go on board a foreign ship, though he has signed articles to do so. Suppose he is brought up in a Court of law, and chooses to raise the point, "I am an Australian citizen."

Senator Walker - - Civis Romanus sum.

Senator ST LEDGER - Neither Civis Romanus sum nor Civis Britannicus sum applies in this case, though I may remind the honorable senator that that principle in the celebrated Don Pacifico case nearly led to war between England, France, and Russia. On whom, I ask again, will the onus of proof lie? Prima facie, the onus will lie on him who asserts the principle from which he seeks to derive benefit. In that case, the man who pleads the exemption will have to prove his citizenship. How is the seaman to prove affirmatively his Australian citizenship? Take the case of a man born at Perth, who leaves Australia when four or five years of age, and, without becoming naturalized in any other country, comes back to the Commonwealth on the articles of a foreign ship when he is thirty years of age. When the ship arrives at Sydney, he wishes to take advantage of this proviso, deserts the vessel, and pleads that he is an Australian citizen. How is he to prove it? He could only obtain positive proof at Perth, thousands of miles away from Sydney.

Senator Pearce - Has the honorable senator never heard of evidence being taken on commission?

Senator Vardon - Is the seaman to be put to that expense to prove his Australian citizenship ?

Senator ST LEDGER - I have often had to use evidence taken on commission, but if the course that the Minister suggests must be adopted, this proviso will not be a very substantial protection to the seaman. In most cases he would find it impossible to prove his Australian citizenship.

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