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Thursday, 14 July 1904


Mr JOHNSON (Lang) - Whilst I am perfectly in accord with the general spirit of the motion, because it is in keeping with the sentiments I have already expressed in connexion with the Conciliation and Arbitration Bill. I think the honorable member for Franklin would act wisely if he consented to the consideration of this question being postponed. I can clearly see that the passing of such a motion at this stage would anticipate the action which the right honorable member for East Sydney intends to take in connexion with the Conciliation and Arbitration Bill. That is why I favour the suggestion that its further consideration should be postponed. I should like to point out a very strong reason why the Government proposals in connexion with the Conciliation and Arbitration Bill should be referred to a Royal Commission, namely, because the introduction of the proposed clauses into the measure will necessitate an alteration of the title.


Mr SPEAKER -The honorable member is discussing a certain Bill and certain clauses which it is proposed to add to that Bill. I would remind the honorable member that there is no Bill under discussion at present, but that honorable members are considering whether certain proposals should be referred to the Navigation Commission.


Mr JOHNSON - I was merely explaining my reasons for Supporting the . proposal to refer certain questions to the Navigation Bill Commission. However, in view of your ' ruling, I shall not proceed on those lines any further. At page 570 of the Annotated Constitution of the Australian Commonwealth there appears a paragraph which seems to me to apply to this case. Although it is intended to apply to the jurisdiction of the Commonwealth over Australian waters in the matter of fisheries, it seems to me that it also applies with equal force to the jurisdiction of the Commonwealth over waters outside our territorial limits in all matters relating to oversea shipping. The paragraph refers to the reports of the debates at the Convention held in Sydney in 1897, page 1073,and reads as follows : -

In the absence of a definition, it was said complicated questions might arise in practice, as to how far from the Australian coast " Australian waters " might be deemed to extend, and whether at a given time a fishing boat was within those waters. More important still was. the innovating proposal to give the Federal Parliament power to legislate respecting fisheries beyond its territorial limits. Outside those limits the ocean was the highway of all nations, and no country could claim to exercise exclusive jurisdiction over the high seas. It was not conceivable that any law affecting fisheries outside the territorial limit would be legally operative. It was not sufficient to say that the Imperial Parliament would give the Commonwealth power to legislate in respect of matters occurring beyond those limits. The Imperial Parliament could not effectively grant the Commonwealth a power which,, according to the law of nations, it did not possess. Suppose the Federal Parliament passed such a law, and the captain and crew of a foreign ship violated it, in contempt and defiance of the Commonwealth, would not the law in that case be made a laughingstock ?

If these remarks are applicable to laws relating to fisheries beyond the three-miles limit of territorial waters, they must also, in my opinion, be applicable to shipping of every description. No invidious distinction can be made between British and foreign shipping engaged in fishing, or in any other branch of trade or commerce beyond territorial waters. It seems to me, therefore, that if these arguments be based upon a sound foundation, they must have an important bearing upon the proposal to insert these clauses in the Navigation Bill, and form another very good reason why they should be remitted for investigation and report by the Royal Commission before any legislative action is taken in regard to them.. I have always held, and continue to strongly hold, the opinion that the Bill in which these clauses are embodied, which will have to be reserved .for the Royal Assent, will- be invalidated on account of these clauses, and that they will be declared to be ultra vires of the British Merchant Shipping Act. Here, again, I am glad to find that the Opinions I have already expressed have teen supported by the right honorable member for East Sydney, the honorable and learned member for Ballarat, and other sound legal authorities. I do not .pretend to have any legal knowledge of the question ; but on -ordinary commonsense principles alone-


Mr Hutchison - Common-sense is very often bad law.


Mr JOHNSON - That may be so in some cases, but we endeavour not infrequently to bring ordinary processes of reasoning and of logic to bear, without any legal assistance whatever, on questions submitted for our consideration. When these common-sense views are supported by sound legal authorities, who have made such questions their special study, there is seme reason to believe that they are worthy of consideration. I would strongly urge upon the Ministry that they are taking a very serious step in endeavouring to pass these clauses into law 'before the power to enforce them has been thoroughly investigated. I understand that I would not be in order in referring to the Conciliation and Arbitration Bill, and I shall therefore be compelled to allow another argument that I intended to submit for the considera tion of honorable members to stand over until a more fitting opportunity presents itself. I feel strongly tempted to move the adjournment of the debate - -


Mr SPEAKER - The honorable member cannot do that. It is open to any honorable member who has not spoken to move the adjournment of the debate, but not after he has made a speech.


Mr JOHNSON - While I am in perfect sympathy with the object which the honorable member for Franklin has in view, I would suggest to him that he should withdraw the motion. That would not necessarily mean that the clauses in question would not ultimately be submitted for the consideration of. the Royal Commission.







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