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Thursday, 14 December 1905

Senator Sir JOSIAH SYMON (South Australia) - I intend to support the second reading of the" Bill, because, to my mind, it represents an amelioration, though a very slight one, of legislation now on the statutebook, which, from my point of view, is extremely mischievous and unnecessary, and which has been probably the chief cause of a great deal of what I may call misunderstanding, and injurious reflection on Australia, in England and other countries.

Senator Findley - Due mainly to misrepresentation on the part ofcertain newspapers.

Senator Sir JOSIAH SYMON - I think not. When we pass legislation such as that we are now seeking to amend, we must expect consequences to flow from the natural inferences drawn by men who are not in the inner secrets of the minds of those who promote the legislation - natural inferences drawn bv men who merely read the printed language of our statute-book as persons of common sense. I do not wish to deal unnecessarily with that aspect of the case, because I welcome, as everybody else welcomes, any modification, the effect of which will be to remove the stigma cast on Australia. I should have welcomed a greater modification, because, to my mind, that which we are now asked to consider is almost infinitesimal, and is surrounded by conditions and fettered with difficulties to such an extent that, when the amending Bill appears as an Act of Parliament, I am afraid it will do very little to dissipate the adverse criticism in relation to the encouragement of immigration to Australia. It is as well to remind honorable senators what we are amending; and I do so, particularly because of the interjection, just made from the other side of the Chamber. I recall the fact that the contract labour provision of the Immigration Restriction Act provides absolutely and unqualifiedly that persons under contract or agreement to perform manual labour within the Commonwealth shall be prohibited immigrants.

Senator Givens - Provided ?

Senator Sir JOSIAH SYMON - I am speaking of the first enactment. I desire to deal with this Bill without heat or party feeling of any kind, but simply from the stand-point of one who, in common with other honorable senators, and neither more nor less, desires that, in the matter of immigration, Australia shall stand on a high plane, so far, at all events, as the mother country is concerned, and that the supply of the crying need of Australia which is admitted on all hands to be population, shall not be discouraged. The contract provision means that a manual labourer, under agreement, is not permitted to enter Australia, but, on the other hand, is discouraged and stamped as a prohibited immigrant. Such an enactment on becoming known in England, and read according to its, literal language, is justification for everything that has been said as to the absence of a desire on the part of Australia to welcome people from the mother country. We must look at this matter as men of ordinary common sense, and ask ourselves whether, if we were in England, and an enactment of that sort were presented to us,we should not say that the positive policy of Australia is to discourage the immigration of manual latourers. The proviso to this provision, in my opinion, makes the position infinitely worse. It is set forth that only those contract workers are to be admitted who have what is called special skill - that is, some abnormal qualification. The ordinary working man, or manual labourer, is not to be admitted, but only those amongst them of whom it can be said that they possess some special, or. as I have said, abnormal or exceptional skill. Any one, on reading that provision would come to the conclusion that the ordinary working man or labourer from England was to be excluded from Australia. The second blemish, which justifies me in saying that the proviso really makes the existing legislation infinitely worse, is that the tribunal chosen for the purpose of determining whether a person has special or abnormal skill is the Minister of the day. I shall never lose an opportunity to denounce the tendency in a great deal of our legislation to introduce the political element, and to constitute the Minister, who is here to-day and gone to-morrow, and is subject to all kinds of political influences and considerations, a tribunal to exercise so-called judicial functions. That, in my opinion, is improper legislation ; and we know what has happened in the past. I do not wish to raise the old questions about the six hatters, or the six potters.

Senator Croft - Or Lady Tozer's maid.

Senator Sir JOSIAH SYMON -Or the incident referred to by Senator Croft. , It is not that men have been excluded; but that the administration depends on the party to whom the Minister gives his support, or on his peculiar feelings and sentiments on the subject. One Minister may admit a particular set of men under contract, while another Minister may determine to exclude exactly similar workers. It is a proposition absolutely unreasonable and impossible in its application, that a Minister is competent to determine whether a manual labourer - an artisan or any other worker - possesses specialskill which is not otherwise available in Australia and which makes him an exception to the positive rule of the enactment.

Senator Givens - Will not the amending Bill practically do the same?

Senator Sir JOSIAH SYMON - The honorable senator will hear my views very briefly ; and I am not sure that he and I will not agree on some points before I finish. Under the law as it stands, I am unable to see how it is possible for us to say that there has been no justification for the feelinggiven expression to in England, as to the discouragement of immigration of the very best type.

Senator Givens - Why, the honorable senator, in his official capacity as a member of the Government. was compelled to expose misrepresentation.

Senator Sir JOSIAH SYMON - It was not so much a misrepresentation as it was an economy of veracity which I felt it my duty to point out. If there is one thing in respect to which there ought not to be economy it is that particular quality. We know that criticisms of the kind to which

I refer are often expressed more forcibly than some will think the occasion justifies, and exaggerations may, therefore, have been indulged 'in. But, allowing for all that, I say fearlessly that in substance the criticism to which this legislation was subjected to in England is amply justified, and it is greatly to be regretted, in the interests of Australia, that occasion should have been given for it. If that were merely my personal view, it might have little weight or influence, but it is the view entertained bv the leader of the party to which Senator Givens belongs, who, in reference to some remark made, I think, by Mr. McLean in another place, said that he would be prepared to agree to a modification to bring this law more into conformity with the intention of Parliament. We know that the present Prime Minister, in speeches of great vehemence and eloquence, time after time, though months ago, and before he came into office, declared that the one pressing demand of Australia was increased immigration.

Senator Givens - Not under contract.

Senator Sir JOSIAH SYMON - Honorable members opposite, so far as I can judge from the expressions of their leader, yielded to the universal feeling of Australia that this contract provision demanded modification. I think that it ought to be repealed altogether. That is the view I always entertained. I opposed it originally, and shall continue to oppose it. But, whether it be repealed or not, it should at all events, be greatly modified, and the sting taken out of it. Changes come over men according to the situation in which they are placed. Mr. Deakin gets into office, and all his zeal for immigration evaporates.

Senator Staniforth Smith - Because the State will not provide the necessary land.

Senator Sir JOSIAH SYMON - What has this to do with land? The distribution of land is one means of bringing people here, but of what use is it for honorable senators to talk about the want of land, and to throw the onus on the States Governments, when they close other avenues that might be opened to immigration without land.

Senator Henderson - What would the honorable senator do with immigrants if he had them here now?

Senator Sir JOSIAH SYMON - Why should we not let them come here if they desire to come under contract to earn their bread and butter?

Senator Henderson - What would the honorable senator do with them?

Senator Sir JOSIAH SYMON - Give them employment.

Senator Henderson - By turning men out of work who are already employed.

Senator Sir JOSIAH SYMON - This is not a Bill for the purpose of introducing an immigrationpolicy, under which people will be brought to Australia in thousands. It is one thing to bring people here, and another to shut them out. Senator Henderson would shut out people who desired to come here. I say let those who are willing to come here, come. But what has that got to do with land? There are two different policies of immigration. One is a policy under which people might be introduced in thousands, and the question of the distribution of land is a very important element in considering that policy. The question we are considering now is whether this barrier erected against immigrants coming to Australia from England-

Senator Playford - Under contract.

Senator Sir JOSIAH SYMON - I do not care whether the barrier is a contract, an objection because of colour, or anything else. I say that we have erected a barrier against people coming from England to this country, and people whose admission to Australia is desirable from every point of view who are willing to come here themselves, and whose admission need not be associated with any land policy. We have said by our legislation, so far, that these people are not welcome. I say that the leader of the present Government took the view to which I have referred, and we expected that the policy of the Government would be in furtherance of that view, and would throw these barriers down. The solid opinion of Australia was being aroused upon the subiect. with the result that Mr. Deakin proclaimed from many platforms that something should be done. What is it that is proposed to be done under this Bill ? The essential principle of the barrier that Englishmen shall not be permitted to come here under contract, is retained in this Bill. In mv opinion, it is a proper and a prudent thing for persons desiring to come to Australia from England to enter into some kind of bargain, or contract, which will insure them emplovment when thev arrive here. On the other hand, it is an equally proper thing that an em- ployer who desires to have them here shall have some assurance that when he pays their passages, and gives' them assistance to come here, there shall be for some time a fixed engagement, in order that his outlay shall not 'be unnecessarily risked. What possible objection can there be to persons entering into an arrangement of that kind? It is surely the best way to insure that immigrants, when they arrive here, shall not become a charge upon the Commonwealth.. It is a perfectly proper thing to enable good colonists to bring others here, who, in their turn, will become good colonists, and may in. future rise, as perhaps their employers have done, from smallness to greatness. We know that many of the men who came here in the past, and have risen in Australia, came in this way.

Senator Givens - Not under contract.

Senator Sir JOSIAH SYMON - Yes, thousands of them came to South Australia in that way. The very best of our colonists came out with just sufficient money to defray the expense of getting here. What detriment can it possibly be to a man to have it said that 'his passage money has been paid, and that he has been given assistance to bring his wife and family with him? These are the sort of people we want here, so long as they are in sound physical health. There is, in my opinion, no justification in fair play to ourselves, and much less to our fellow-subjects in the mother country, for the bar erected against men desiring to come here under contract. However, that principle is still maintained in this Bill, and it is surrounded by most extraordinary entanglements. Such difficulties are thrown in the way, that whilst the existing law is bad because of its directness, this Bill is nearly as bad because of the intricate way in which it proposes to harass and annoy people who are desirous to come out here. For instance, no immigrants can come into this Commonwealth under an oral agreement. If there is to be an agreement at all. it must be a contract in writing. If a colonist returning to England forgetfully, or without a knowledge of this particular law. engages a person to come out here and work on his farm, in his factory, or as his coachman, or anything of that kind, and makes the arrangement verbally with him, the man on coming here will find that he is a prohibited immigrant under this legislation.

Senator Stewart - If the contract is not in writing, it is no contract.

Senator Sir JOSIAH SYMON - Is not a verbal contract binding?

Senator Stewart - It would not be in his case; the employer could not enforce it.

Senator Sir JOSIAH SYMON - He could enforce it.

Senator Givens - If would be more difficult to prove than a written contract.

Senator Sir JOSIAH SYMON - I admit that. Honorable senators must bear in mind that! this is supposed to be a Bill to remove difficulties in the way of the immigration of these people.

Senator Givens - And it is just for that reason that I intend to vote against the second reading.

Senator Sir JOSIAH SYMON - No. surely !

Senator Guthrie - So is the honorable senator, is he not?

Senator Sir JOSIAH SYMON - Is Senator Guthrie?

Senator Guthrie - I am.

Senator Sir JOSIAH SYMON - I am astonished to hear it. Honorable senators would appear to be going to throw over not only the Ministry who are their children, but their leader, 'Mr. ' Watson, their guide, philosopher, and friend.

Senator Gray - Will the Ministry .resign?

Senator Sir JOSIAH SYMON - No, they will not resign; they will do whatever they are told. I was pointing out that men coming here under verbal agreement will be regarded as prohibited immigrants. But that is not all. He has not only to approve of the terms of p contracts when a copy is filed with him - ana a copy cannot be filed with him before an agreement is entered into - but in sub-clause 3 the amusing draftsman seems to contemplate approval by the Minister before the contract is made. It says -

If, where the approval is sought after the contract is made, the contract contains a copy of this and the immediately preceding section, and is expressed to be made subject' thereto-

That implies that approval may be sought before the contract is made. I submit that the approval of the Minister cannot be given before the contract is made. There is no necessity to provide for a case where the approval is sought after the contract is made, because the Minister can only give his approval when a copy of the agreement is filed with him. Then the contract is only to be operative if, in. his opinion, it is not made - in contemplation of or with a view of affecting an industrial dispute.

How is the Minister to say whether it is made " in contemplation of an industrial dispute"? I am quite at one with my honorable friends that no contract labourers ought to be brought in to supersede the men engaged in an industrial dispute.

Senator Givens - They might be brought in twelve months previously.

Senator Sir JOSIAH SYMON - If that could be established, I think it would be a legitimate thing to provide against, but the mischief is that the provision empowers the Minister - uncontrolled, without evidence of any kind, influenced by party feeling, or party considerations - to say, " I believe that this man has been brought in in anticipation of an industrial dispute; I shall not admit him." There will be no control over the Minister in that respect. It maybe either a simple means of arrogating a very tyrannical power or a means of subserving some political end. I pass by paragraph b of sub-clause 2 for a minute, in order to. refer to paragraph c, which makes the Minister a judge as to whether -

The remuneration and other terms and conditions of employment are as advantageous to the contract immigrant as those current for workers ofthe same class at the place where the contract is to be performed.

Why should we place the Minister in the position of a Court of Conciliation and Arbitration ?

Senator Givens - In fact, the Minister should be pole-axed ; he should not be intrusted with anything.

Senator Sir JOSIAH SYMON - He should not be intrusted witha duty of this kind. When we have Courts of Conciliation and Arbitration, when we have Wages Boards, when every immigrant who joins a trade is under our Conciliation and Arbitration Acts, under our Shops and Factories Acts, and affected by the decrees and decisions of those Courts and Boards,, why should we elevate the Minister into another Court to determine this question on his own mere will., without, if he chooses, hearing either side, without evidence of any sort, to say, simply on his ipse dixit, that the remuneration is not a proper thing ?

Senator Turley - The vast majority of the workers are not under Wages Boards or Arbitration Acts.

Senator Sir JOSIAH SYMON - Does not my honorable friend think, from his own point of view, that it is very wrong to give this power to the iMinister.

Senator Mulcahy - It may work either one way or the other.

Senator Sir JOSIAH SYMON - Exactly. Is it right or safe to place the Minister in that position?

Senator Turley - Whom else could the honorable senator place in that position ?

Senator Sir JOSIAH SYMON - If we want to do it at all let us constitute an independent body - a Board, if you like, or anybody you please - with power to hear evidence on the matter. The Minister has no power to call witnesses.

Senator Turley - Another Board !

Senator Sir JOSIAH SYMON - I am no advocate of the multiplication of Boards.

Senator Stewart - Would it not be much simpler to do away with the whole thing,?

Senator Sir JOSIAH SYMON - I think it would.

Senator Turley - Let it stand as it is.

Senator Sir JOSIAH SYMON - No. I believe that the more we can cut down this absolute enactment against bringing in persons from the mother country the better it will be. What is the use of all these hypocritical declarations on the platform as to the need of immigrants, and all that kind of thing? What do they all come to? It is simply humbug.

Senator Givens - We do not want them tocome in under contract.

Senator Sir JOSIAH SYMON - I have no objection tothe essence of this legislation. I supported! the principle in the South Australian Act, which I have quoted before. Our Masters and Servants Act contains this most excellent provision, that if persons are brought to the State under contract, and it can be proved that in respect of wages or anything else there has been misrepresentation, the contract is void and they are absolutely free. I am quite willing that a provision of that sort should be enacted by this Parliament. But that is not what the Government are trying to do. There are only two considerations,: Are we bent upon excluding workmen from coming here, or are we desirous simply of saying that they can come here under fair terms ?

Senator Givens - That is not a correct statement of the case. This is a question of their coming here under contract.

Senator Sir JOSIAH SYMON - What is the objection to a contract?

Senator Playford - It may mean fearfully low wages.

Senator Sir JOSIAH SYMON - If it means fearfully low wages, we have a remedy. As my honorable friend knows, in South Australia we can correct the wrong.

Senator Playford - No. The Act does not void a contract because of low wages, but because of fraud, and misrepresentation.

Senator Sir JOSIAH SYMON - That is exactly what it provides for.

Senator Playford - An employer may not make any misrepresentation. He may merely say to the men, " I offer you soandso," but he does not say that that is the real wage of the country.

Senator Sir JOSIAH SYMON - Why should not the employer offer the men soandso ?

Senator Playford - Then he comes under the provision as to low wages ?

Senator Sir JOSIAH SYMON - There are other considerations which affect the question of wages. There is the cost of the man's introduction. If he gets twice the wages which he received in the mother country, surely that is sufficient ! Of course it may be much less than he would receive after he had gained three or four years' experience here. Does my honorable friend mean to tell me that a man without experience in .Australia would be entitled to the same wages as a man who had had experience in Australia? I know plenty of pursuits in the open air - in primary productions, and so on - in which, for the first year or two, a man is gaining Australian experience. Surely an employer is not going to pay that man the same high wages as he would pay to a man who had passed all his life under Australian conditions ! I do not wish, however, to go into that aspect of the question. The only thing we have to provide against - and in that respect I am with my honorable friends - is the maiding of a misrepresentation to a man, such as telling him that the wage he is to get is higher than, or equal to, that which is paid to experienced Australians in the same occupation.

Senator Guthrie - The honorable senator knows how the South Australian Act failed in the case of Fulton's pipe works.

Senator Sir JOSIAH SYMON - I know that it did not fail.

Senator Guthrie - It absolutely failed. The men had to go to gaol.

Senator Sir JOSIAH SYMON - It did not fail, but the men were unable to show that there had been any misrepresentation.

Senator Guthrie - They were to get half the wages.

Senator Sir JOSIAH SYMON - No. I remember the details perfectly well, because I happened1 to be in the case. Either my honorable friend 'wishes to shut out these people,' because they are afraid of their competition, or the provisions of the Act are needlessly preventing persons from coming here whom we ought to encourage to come. The contract has to be not merely in writing, but to contain a copy of sections 2 and 3 before it can be approved by the Minister. First of all, you have to establish an .army of labour agents in England familiar with all the details of the Act before "engagements of any sort can he made, and you shut out the possibility of anybody coming here who has entered into a contract without the assistance of that profession against which my honorable friend has so much prejudice - the lawyers,; because nobody would be able to tell a man that it ought to contain those provisions. A market gardener, or a farmer, or a pastoralist, who happened to be in England, or some person in England, who did not know the details of the provisions, might enter into a contract of which, when it came out here, the Minister could not approve because it did not contain sections 2 and 3. All I can say is that whatever may be the case under the existing law, if these provisions be enacted, the Minister will not be troubled with many contracts of which it will be possible for him to approve. Then, again, he can only approve of a contract before this unfortunate contract labourer lands in the Commonwealth. Of course, he mav land at some port of call temporarily - that is afterwards provided for - but if he happens to land on the shores of the Commonwealth, it may be by accident, what is to happen? The contract is absolutely void. There is no opportunity afterwards for approval. The Minister cannot approve of it. Without any chance of being saved from this accident, the immigrant is liable to a penalty not exceeding ^5, and the employer who had nothing to do with' it, and perhaps did not come down to the ship in time to prevent- this awful offence, is subject to a penalty not exceeding £20. Without benefit of clergy, the employer has to pay any sum the Minister chooses to name, up to £50,to maintain this contract labourer, who has by accident stepped upon these sacred shores, and to send him back to the country whence he came.

Senator Turley - Yet the honorable senator is supporting the Bill !

Senator Sir JOSIAH SYMON - I am going to support it for one reason, but I feel that I owe Senator Turley an apology. The Bill is a little better in one respect than the existing law. It is a small step towards bringing down the whole edifice which I hope to see, before many years, crumbling to pieces, and this legislation swept off the statute-book. In Committee, I hope to remedy the defects which I have pointed out.

Senator Givens - The honorable senator has not a hope.

Senator Sir JOSIAH SYMON - My honorable friend is apt to jump a little ahead. He is rather impulsive. I have great faith in his judgment when he applies his reasoning powers to a question. When his feelings only are consulted, he is apt to go wrong, but when he applies the logic 'that resides in. the back of his brain he goes right. Clause 6 of this Bill is certainly the most singular production that could have emanated from the brain of the most ingenious of draftsmen. There are other provisions, in regard to which I do not wish to occupy the attention of honorable senators, because we can' deal with them in Committee. Those to which I have referred constitute the substance of the Bill. But the're is one feature of clause itto which attention may be directed before I come to the point which induces me to support the Bill. The clause says -

This Act shall not be construed to apply to domestic servants or personal attendants accompanying their employer to Australia.

I understand . that" accompanying their employer to Australia" applies to domestic servants, and that the Bill is notto apply to domestic servants under any circumstances. The proyision is ambiguous. It can be remedied bv inserting the word " to " before " personal attendants," so as to make the clause read -

This Act shall not be construed to apply to domestic servants or to personal attendants.

I presume that the Bill is not meant to provide that domestic servants are not to be admitted unless they accompany their employer.

Senator Playford - Undoubtedly; if we were to open that door we might as well do away with the whole law.

Senator Sir JOSIAH SYMON - A man can go home and bring back with him a whole flock of domestic servants. What a nice temptation that is to put before batchelors, who maintain establishments of their own. I do not object to the reference to personal attendants, ' because they are supposed to accompany their employers. With respect to paragraph b of sub-clause 2 of clause s, I see that the Minister has given notice of an amendment which makes an improvement in the draftsmanship. When that amendment is moved I shall support it. I observe that the condition with respect to the difficulty of an employer obtaining within the Commonwealth a worker "of at least skill and ability " is not to apply to British people or persons of British descent. That is not very much, but it is a distinct amelioration of the present law ; and because of the presence of that provision in this Bill, with very great reluctance on account of other provisions which, I think, largely detract from the benefits conferred, I shall support the second reading.

Senator McGregor - It is a little sop to sentiment.

Senator Sir JOSIAH SYMON - I do not complain of that expression. It is a sop to sentiment. That is something of value. Yesterday we were dealing with sops to sentiment in relation to Japan. I think it is of far greater importance that we should, even putting it in that way, administer these sops to sentiment in relation to people in the mother country, who are our own flesh' and blood'. Even putting it upon that ground, I think the amendment is an advantage. But it will be an advantage in other ways - that it will relieve the Minister of a duty which it seems to me it would be impossible for any Minister to discharge conscientiously. How can he possibly say when a man comes here under contract that a person of equal ability and skill could not be found in the Commonwealth to perform the duties for which he is brought ? Such a thing is a travesty of legislation. But with this provision regarding people of British descent in our law, that difficulty will be removed. That is a very great advantage, because it will enable unofficial Australians going to England to combat statements which have been made, and to say with truth that whatever obstacles have been thrown in the way of people from England coming to Australia to better themselves - and to better us, for the matter of that - we do not desire them to be subject to all the difficulties which we are determined to throw in the way of other and less desirable races. That, at any rate, is something better than the bald position of the existing law. Instead of providing that persons under contract to perform manual labour shall not be admitted, with a proviso that the Minister may admit them if satisfied that they possess special skill, we now state that the Minister shall not inquire whether there are in the Commonwealth workmen of equal ability to persons coming from Great Britain or persons of British descent. These are the views which I entertain in regard to this measure. I should hare liked to see the total repeal of the contract provisions,, with a clear law dealing with the two things that we are all agreed should be provided against - namely, the importation of men to influence a strike or an industrial dispute, and of persons under false pretences. It is not a question of low wages to which two persons agree honestly and fairly, but of misrepresentation. Those are the two things we require to guard against. Subject to these, I think the present law ought to be swept from the statute-book altogether. Apparently we can only deal with the matter by instalments. We can, however, make advances towards a better position of things. This is a very slight advance; and if it assists us to rehabilitate ourselves in England, even to a slight degree, I think we ought to .welcome it. I am sorry, from that point of view, to hear some of my honorable friends opposite say that they are not prepared to make even that measure of concession, and mean to vote against the second reading of the Bill.

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