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Friday, 11 July 1930

Senator McLACHLAN (South Australia) . - While this motion is merely one for the printing of two papers, a few words should be said concerning the momentous and farreaching subjects with which they deal. The first report is that of that distinguished jurist, Sir William Harrison Moore, who represented the Commonwealth at what we believed was to be a conference of experts in the Old Land. The origin of the conference is to be found in the determinations of the Imperial Conference held in 1926. The genesis of the conference, the report of which we propose to print, is to be found in the declaration of the Imperial Conference in that year, that the dominions are -

Autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

Subsequently, Great Britain and the other members of the British Commonwealth of Nations determined that a conference should be held to see how best practical effect could be given to this determination, while keeping the machinery of Empire in its proper poise. While we had be lieved that that was really to be a conference of expert jurists, Sir Harrison Moore's report in paragraph 2 points out that the representation of some of the dominions took a political, and almost an executive, character. Sir Harrison Moore states -

It will be seen from the report of the conference that, instead of being a small committee of experts the conference was a rather large body to which most members of the British Commonwealth has sent several members. This fact, together with the fact that Great Britain, Canada, and the Irish Free State sent Ministers, and that most of the other members of the conference were officials, caused some tendency to treat the conference as analogous to an Imperial or international conference, whose members are " national delegates " whose delegations act as units and not as individuals, presenting a national andnot an individual point of view. In fact, the precise functions of an international body of experts have not yet been definitely established by practice. But it is obvious that, in proportion as the influences to which I have referred assert themselves a conference tends to draw to itself a political character, and the signature ofmembers may be regarded as that, not of individuals, but of the Government represented.

This conference, as I understood it, was to prepare the preliminaries for a further Imperial Conference. It was to provide the headlines, so to speak, under which the great principle endorsed by the Imperial Conference in 1926 should be given practical shape and form. It was not, therefore, to decide questions of policy, or to come to final conclusions. Although certain recommendations were made, I venture to suggest that they point to the form the legislation of the dominions or the Mother Country should take, with a view to perfecting the plan, and giving effect to the principle, enunciated in 1926.

Sir. HarrisonMoore makes his own position quite plain in his report, in which he says, inter alia -

My own position in the Conference was that of an expert merely, not charged with the representation of any views of the Commonwealth Government, save to take care that the Government was not committed to any judgment on any recommendations that might be made or to the acceptance of anything said in the report ofthe conference. I considered it, therefore, a particular part of my duty at the Conference to see that nothing that was done, and nothing that was said in the report, should embarrass the Commonwealth Government in taking whatever course upon the recommendations of the conference it should think fit or prejudice the full consideration nf the views of the Commonwealth Government by the other governments. It will be seen that the terms of the report draw attention, in the words of the Imperial Conference report of 1026, to the advisory and preparatory nature of our work, and I emphasized this further in a statement I made at the final meeting of the conference which was recorded in the proceedings.

On the other hand, it appeared to all of us that we were not assembled merely as " legal experts," and that the notion of a constitutional expert included the consideration of the working of constitutions as a matter of practical politics. As our task included the making of recommendations for legislative, or other governmental action, we had to take account of what appeared to be practicable and to have a reasonable chance of being accepted by the Governments, Parliaments, and people of the several members of the British Commonwealth. It was part of this last consideration that a fair measure of agreement among us was necessary if, our work was to assist "the governments by which wo were appointed. Our aim was not scientific, but practical. Thu function of the Conference extended to recommending such courses of action as might ultimately find the several governments in accord upon them, and, therefore, it, was evident that there must be some "give and take." '

Again, in the paragraph dealing with the Colonial Laws Validity Act, Sir Harrison1 Moore states, in referring to the difficulties that arise, that "Various methods of providing forell or. some of these matters were explored." That almost, in. a sense, expresses the functions that this conference performed under the Imperial Conference.

Turning to the report of the conference itself, we find that there fs a clear recognition, not only of its origin, hut also of the purposes for which it was held. The conference summarized its deliberations under five main headings, one of which was subdivided. The report deals with the following subjects :- Origin and purpose of conference; disallowance and reservation; extra territorial operation of dominion legislation; Colonial Laws Validity Act; merchant shipping legislation and Colonial' Courts of Admiralty Act, 1890, and the suggested tribunal for the determination of disputes. Of those subjects perhaps some of us may regard the settlement of interdominion disputes as the most important. These subjects are important not only to the Empire but to civilization. The British Commonwealth of Nations, as it is rightly termed, should hold closely together, and the machinery to enable it to function most effectively in the interests of our people and of civilization generally should receive most careful attention. While we believe that a great deal, of attention has been given to these subjects by the delegates who attended the conference which assembled last year, and who approached their duties with a recognition of their responsibilities, there still remain a number of problems the solution of which can be found only by further examination by the statesmen of the various countries concerned. Any one reading the report cannot help but conclude that bur Empire has worked very smoothly. If honorable senators refer to the subject of disallowance, and reservation which is dealt with in the third section of this report they will see that there has been scarcely any friction. A significant feature which emerges, and which is of particular importance, is in relation to the Colonial Stock 'Act of 1900, '/It is an important and interesting subject, not only from the viewpoint of the British Chancellor of the Exchequer in Great Britain, or of the Treasurer of the Commonwealth, but also from the. viewpoint of the future relationship between the British Commonwealth of Nations. Under the provisions' of the Colonial Stock Act of 1900 our securities may be made trustee securities of the United Kingdom, and if we were competent to pass legislation in this respect some control could be exercised. The principal recommendations in this respect are to be found in paragraph 25, which reads -

The general question of the terms on which loans raised by one part of the British Commonwealth should be given the privilege of admission to the trustee ''st in another part falls naturally for determination by the government of the latter, and it is for the other governments to decide whether they will avail themselves of the privileges on the terms specified. It is right, however, to point out that the condition regarding this allowance makes it difficult, and in one case, impossible for certain dominions to take advantage of the provisions of the Colonial Stock Act of 1900.

We might carry that further because it appears to me that the making of the stock of one country a trustee security in another lends itself to a reciprocal arrangement between, the various members of the Commonwealth of Nations.

Senator Ogden - The conference recommended the discontinuance of the use of the word " colonial."

Senator McLACHLAN - 'Yes; it is out of harmony with our new status, and can be altered only by statute. That question, which is of considerable moment, was discussed; but I realize that the power of reservation and disallowance has not caused any difficulties in the past. The ex-territorial operation of dominion legislation is a complex problem. The recommendations in that regard are to be found in paragraphs 40 to 43. The report is illuminating and indeed helpful. Paragraph 40 reads -

Wo ure agreed that the most suitable method of placing the matter beyond possibility of doubt would be by means of a declaratory enactment in the terms set out below passed, with the consent of all the dominions, by the Parliament of the United Kingdom.

Paragraph 41 reads -

With regard to the extent of the power so to be declared, we are of opinion that_ the recognition of the powers of a dominion to legislate with extra territorial effect should not be limited either by reference to any particular class of person (e.g., the citizens of the dominion) or by any reference to laws " ancillary to provision for the peace_ order and good government of the dominion " (which is the phrase appearing in the terms of reference to the conference).

Paragraph 42 reads -

We regard the first limitation as undesirable in principle. With respect to the second we think that the introduction of a reference to legislation ancillary to peace order and good government, is unnecessary, would add to the existing confusion on the matter, and might diminish the 'scope of the powers, the existence of which it is desired to recognize.

Paragraph 43 is as follows:-

After careful consideration of possible alternatives, we recommend that the clause should be in the following form: - " It is hereby declared and enacted that the Parliament of a dominion has full power to make laws having extra territorial operations."

That is a direct recommendation of the conference. In paragraph 54 the conference dealt with resolutions which it is considered should be passed at the next Imperial Conference. That paragraph reads -

With regard lastly to the problem which arises from the existence of a legal power in the Parliament of the United Kingdom to legislate for the dominions, we consider that the appropriate method of reconciling the existence of this power with the established constitutional position is to place on record a statement embodying the conventional usage. We, therefore, recommend that a statement m the following terms should be placed on record in the proceedings of the next Imperial Conference: -

It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any dominion, otherwise than at the request and with the consent of that dominion.

That is a definite and explicit recommendation. The conference then deals with the complex question of succession to the throne in paragraph 59 in this way-

As, however, these freely associated members are united by a common allegiance to the Crown, it is clear that the laws relating to the succession to the throne and the Royal Style and Title are matters of equal concern to all.

Then follow certain suggestions and recommendations which should be considered by a conference specially convened for the purpose. A suggestion which the conference made was in the following terms: -

Inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the succession to the Throne or the Royal Style, and Titles, shall hereafter .require the assent as well of the Parliaments of all the dominion!: as of the Parliament of the United Kingdom.

The position in regard to merchant shipping legislation is the most difficult and intricate of all the problems which confronted the conference. Honorable senators will find suggestions with respect to the tribunal on page 24 of the report. There is also a recommendation that the suggestions submitted should be further examined by the Governments concerned. As I have already indicated, recommendations of the conference are of great importance and may be attended with momentous results. It is absolutely essential that Australia should be adequately represented at the forthcoming and all succeeding Imperial Conferences. I feel that the Commonwealth of Australia should be in the forefront at such gatherings, as conclusions- may be reached which may have a very im- portant bearing, not only upon Australia, but on the whole civilized world. We 3hall be lacking in our duty not only to ourselves, but to civilization, if Australia is not represented at such conferences, which undoubtedly strengthen those links which bind the Empire together.

Senator Sir GEORGEPEARCE (Western Australia) [12.0]. - Australia owes a great debt of gratitude to Sir Harrison Moore for the very valuable services he has rendered at Geneva and elsewhere in connexion with matters of considerable importance to the Empire and Australia. Before dealing with his report I should like to see a few more honorable senators on the Government benches. [Quorum formed.]

The first matter to which I wish to direct attention is that referred to by Senator McLachlan, the position of the Grown in relation to the various parts of the British Empire. It is a most important question. I am quite in accord with the recommendations made by the conference attended by Sir Harrison Moore, but we cannot shut our eyes to the fact that there is some division of opinion on the point, particularly in South Africa where the matter was recently discussed. What has taken place in South Africa shows how necessary it is that we, in Australia, should know the attitude our Government proposes to take up on this important question at the forthcoming Imperial Conference. The Crown, as we know, is practically the principal link that binds the various parts of the Empire together, and I trust, that before the Prime Minister leaves for England, ' we shall have some information as to the attitude he will take up on this vita] point. From the discussion that has taken place in South Africa I should imagine that the Prime Minister of the Union of South Africa will almost certainly raise the issue at the Imperial Conference. I do not, however, anticipate that .the Australian Government will take up an attitude which is out of harmony with that of the people of Australia. There is not the slightest doubt about the attitude of the people of Australia. They stand for the principle set out in the recommendations contained in the report of the conference attended by Sir Harrison Moore.

Another matter of prime importance in the recommendations of that conference relates to the law governing shipping. It is recommended that the Merchant Shipping Act should be amended in such a Way that its provisions will apply only to the United Kingdom and Crown colonies, that each of the dominions may make its own law relating to ocean going as well as coastal shipping, and that these laws shall be, as far as possible, uniform. I can imagine the result that would follow the adoption of that recommendation, with the various self-governing nations of the British. Empire passing separate laws dealing, not merely, as we do in our Navigation Act, with coastal shipping, but also with ocean-going shipping, and at the same time endeavouring to make their laws in this respect as far as possible uniform. To-day the law in relation to ocean-going shipping is uniform, because the Parliament of the United Kingdom is the only law-maker in relation to it. We want to preserve all the rights to which we are entitled, but it is one thing to have a right and quite another thing to know that it is wise to exercise it. It may be much wiser not to exercise it, especially if the same result can be achieved by not doing so.

Senator McLachlan - Particularly if the exercise of the right brings about tremendous complexity.

Senator Sir GEORGEPEARCE.There would be complexity, diversity and confusion, if each dominion exercised its right to make laws governing oceangoing shipping. We must remember that, after all, these recommendations are merely an indication of what the dominions may do. Our Government has, therefore, to make up its mind whether it is desirable for the Commonwealth to pass laws relating to oceangoing shipping, and, as the Prime Minister will shortly be representing Australia at the Imperial Conference, I am sure- Ministers will welcome an expression of opinion on the point from this Parliament.

Senator Daly - Hear, hear!

Senator Sir GEORGEPEARCE.These are not party matters.

Senator Daly - Hear, hear!

Senator Sir GEORGE PEARCE - It is . no derogation of our dignity as self"governing nation if we decide that it is more con.venient for us not to exercise our undoubted right to pass legislation dealing with a certain matter if we feel that, by the non-exercise of that right, .we can achieve a better result. At the present time, the Merchant Shipping Act 'practically governs all shipping other than coastal, and is working quite smoothly.

Senator Ogden - It governs coastal shipping to some extent.

Senator Sir GEORGEPEARCE.There are certain minor limitations on the power of the Commonwealth to deal with coastal shipping; but, as a general principle, it has the power, which is embodied in our Navigation Act, to deal fully with coastal shipping. It has had no power to deal with ocean shipping. Now, however, under the new dominion status, it appears that it has the right to deal' with ocean-going shipping. The question is whether it is wise to exercise that right. There is certainly really no reason why it should do so at the present time. When things are working smoothly it" is just as well to leave them alone. Simply to pass laws for the sake' of asserting our right to pass .them reminds me of the old story of the navvy who was appointed as ganger, and immediately proceeded to sack his . life- time mate. When the mate asked why he had been . sacked, the ganger replied, " To show you my authority." Australia has suddenly discovered that it is invested with au authority to pass certain legislation, and if it were- anxious to exercise tb,at right, and every dominion proceeded to do the same, an extraordinary position would arise, unless, of course, it was exercised in exactly similar terms. . Even then there would, be six sets of uniform legislation, each administered by - a different authority. Administration is almost as important as legislation. . At the present time the administration of the law relating to ocean-going shipping is in the hands of one government, and that leads to simplicity and smooth working. I trust that the Government will 'not be induced to act on the recommendation of this conference simply because this particular recommendation has been made. It would not be, I submit, in the interests of Australia, nor of the Empire, to exercise our undoubted right to pass this legislation at this juncture. There is always the danger that, if each dominion proceeded to pass legislation controlling ocean shipping, as it would undoubtedly have the right to do, it might do so without regard to uniformity. Hopeless confusion would arise.

We have also to look at this question as it affects shipping in foreign ports. There is no difficulty at present. When a British ship, goes into a foreign port it is under the Merchant Shipping Act, and the British consul in that port is given certain powers under that act. If we exercised our undoubted right to pass legislation dealing with overseas shipping, the British consul would have no power under, our legislation unless we gave it to him. We should be obliged to set up a consular service all over the world, having our own consular authorities in each port to. deal with shipping matters, or pass, .legislation uniform with what has been enacted throughout the Empire, investing the British consular authorities ' with the power to act under our legislation. It seems to me that that would lead to a vast amount of unjustifiable printing. The simplest method is that, while we recognize this reservation as a right, this is a case in which it should not be exercised; and we should, by tacit agreement' or, if necessary, by passing a law, recognize the British act as operating in regard to all ocean-going shipping. That course would probably be unnecessary, because the Merchant Shipping Act is operating to-day and up one challenges its validity.

Senator Ogden - If there should be a challenge as to its validity a doubt might arise.

Senator Sir GEORGE PEARCE - There is no statutory law to. give, effect to our changed, status. It has been, reached merely by the. passing df a resolution at ' an Imperial Conference. -It has now been suggested that legal effect should be given to the resolutions, of the conference, and I suggest that the easiest and most, workable way ; of dealing with ocean shipping is to pass a law main-taining the status quo. We do not need a lot of consular authorities all over the world for Australian ships that may not visit some ports more than once hi twelve months, if at all. The conference attended by Sir Harrison Moore dealt with these matters on a theoretical basis; it was its task not to look at them as every day workable propositions, but to declare the legal position and say what steps could be taken; it did not point to the other, and what seems- to me to bo the obvious, course, that of letting the existing position stand. My reason for speaking to-day is to impress on the Government that it would perhaps be well to maintain the existing state of affairs in regard to ocean-going shipping. If necessary, a bill might be passed to assert our right, but to declare that it was exercised in the Merchant Shipping Act. There would then be no confusion, particularly if we could induce the other dominions to do likewise. There is an idea in many quarters, which is steadily growing, that the British Empire may some day develop into an economic unit. .The more we assert our independence, individuality and separate autonomy, the more difficult it will bc to bring about that result. I hope that the Government will take the view in this matter that the simplest course is the best to follow.

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