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Wednesday, 6 December 1911

Senator GUTHRIE (South Australia) . - I am very pleased that the Government have seen fit, even at this late stage of the session, to introduce this Bill. Every member of the Senate will agree as to the absolute necessity of some substitute for the Act we passed in 1909. I am afraid, however, that the limits of this Bill are far too narrow.

Senator Millen - The fault of the Bill of 1909 was that it was too wide.

Senator GUTHRIE - That is so. The powers proposed under this Bill have been narrowed down below the limits adopted in the Navigation Bill, and, if this Bill correctly defines the extent to which we can go in the matter of seamen's compensation, the same objections will apply to our Navigation Act as applied to the Seamen's Compensation Act we passed in 1909. Under clause 4 of this Bill it is provided that -

Subject to sub-section 2 of this section, this Act shall apply to the employment of seamen on any of the following ships : -

(a)   ships in the service of the Commonwealth, other than the naval or military service ;

I take it that the Bill will apply to ships in the service of the Commonwealth, no matter where they are.

Senator McGregor - That is so.

Senator GUTHRIE - The clause continues -

(b)   ships trading with Australia, or engaging in any occupation in Australian waters, and being in the territorial waters of any Territory which is part of the Commonwealth. 1 take in this connexion the case which 1 have in my mind more than any other, and that is the loss of the Yongala. Let me inform honorable senators that had that vessel not been registered in Australia the relatives of the seamen employed on that vessel who were lost would have been entitled to compensation under the Imperial Act. But they would not be entitled to compensation under this Bill. We have no proof, but we are led to believe that that vessel was lost at more than 3 miles from the coast, and so the loss did not take place within our territorial waters. I was informed by the best authority in England that the relatives of the men lost on the Waratah could claim, had claimed, and were paid compensation under the Imperial Act.I think it has been laid clown by the High Court in the case of Kingston v. Gadd, which is the leading case defining our powers in this respect, that we can enforce the laws of the Commonwealth from port to port in Australia, no matter whether a ship goes beyond the 3-mile limit from the coast or not. I say, therefore, that this Bill does not go far enough, and it should have followed in this matter the decision in the case referred to. A ship leaving Eremantle, bound for Adelaide, must go outside the 3-mile limit, and if she is lost crossing the Australian Bight this Bill will be absolutely worthless as a means of securing compensation to the relatives of seamen on board. I do not think that that can be desired. The decision of the High Court is broad enough to justify a far wider interpretation of the law than is covered by this Bill.

Senator Millen - Does not the Imperial Act come into force to supplement this Bill?

Senator GUTHRIE - No, the Imperial Act absolutely excludes the Dominions and the Commonwealth. It leaves us to legislate for ourselves, and we are not doing all that we might do in this Bill.

Senator Millen - Surely we are with regard to Australian vessels wherever they trade? Of course, I do not mean to refer to local boats trading within the waters of one State.

Senator GUTHRIE - No, I do not think that we are. The Imperial Act does not apply to vessels registered in Australia.

Senator Millen - But this Bill does.

Senator GUTHRIE - The Imperial Act did not apply to the Yongala.

Senator Millen - What about paragraph cor clause 4?

Senator GUTHRIE - That paragraph includes -

Ships engaged in trade and commerce with other countries or amongst the Slates.

But that paragraph is governed by paragraph b, which says that the ship must be within the territorial waters of the Commonwealth.

Senator Millen - No; paragraphb deals with a separate class of ships.

Senator GUTHRIE - What is the definition of "Australian waters"? If I am assured that it covers anything outside the 3-mile limit of the coast, I shall be prepared to let the Bill go. But if it does not, then this Bill does not do what I think it was intended to do.

Senator de Largie - Does the honorable senator consider that the part of the Great Barrier Reef, where the Yongala went down, is outside the territorial waters of Australia ?

Senator GUTHRIE - Yes. I think it is more than 3 miles from high-water mark on the coast.

Senator Givens - No one knows where the Yongala was lost.

Senator GUTHRIE - I admitthat ; but I am referring to the place where it was supposed she went down.

Senator de Largie - Is the Barrier Reef outside our territorial waters? I do not think that it is.

Senator GUTHRIE - I will leave that altogether. I take the case of a vessel leaving Albany bound for Adelaide, and I say that, until she is nearing Kangaroo Island, she is outside our territorial limit all the time. I ask the Vice-President of the Executive Council whether he can assure the Senate that such a vessel would, throughout that voyage, be covered by this Bill?

Senator McGregor - Yes.

Senator Millen - Would not that come under paragraph c ?

Senator McGregor - Senator Guthrie is reading paragraphs of clause 4 into each other, and is thus making trouble for himself.

Senator GUTHRIE - I think not. Paragraph a deals only with ships in the service of the Commonwealth other than the Naval or Military Service, and, so far, would cover only the trawler. Then paragraph b deals with ships trading to Western Australia, but within our territorial waters.

Senator Millen - They are foreign vessels, and we can only deal with them when they are in our territorial waters.

Senator GUTHRIE - Then paragraph c covers ships engaged in trade and commerce withother countries or among the States. What does " among the States " mean ?

Senator Mcgregor - The High Court has said what it means.

Senator GUTHRIE - That is where we failed in the Kalibia case, because the loss occurred outside our territorial waters. Sub-clause 2 of clause 4 reads -

In the case of ships not registered in Australia, this Act shall, as regards paragraphs b and c of sub-section 1 of this section only apply in relation to seamen shipped under articles of agreement entered into in Australia, and then only while the ships are subject to the law of the Commonwealth.

It will not apply to seamen who have not been engaged in Australia. My opinion regarding the Bill is that it is much too narrowly drawn. I shall do nothing to impede its passage, as it may be of advantage to some one ; but as surely as I stand here, if this measure is passed, it will be found that an amending Bill will be necessary next year. Upon the decision of the High Court, the measure might have been made to apply to ships leaving one port in Australia for any other in another State, no matter whether on the voyage they went outside the 3-mile limit or not. It is, in my opinion regrettable that the Act we passed in 1909 was decided to be unconstitutional, and that no steps have been taken earlier to put another measure of the kind on the statute-book.

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