11. Commonwealth.

During 1953, the Commonwealth Parliament passed 96 Acts of the usual varied nature, some being of considerable political signifi- cance, and exciting as a result much discussion in both Houses. The sixth period of the first session of the Twentieth Parliament lasted from the 17th February 1953, until the 27th March. The seventh period began on the 8th September and ended on the ~ 2 n d October. On the 10th November the second session began and it continued until the 2nd December.

I. CONSTITUTIONAL.

The royal style and titles.

The Royal Style and Titles Act (No. 32 of 1953) gives effect to the decisions reached by the Commonwealth Prime Ministers in the conference held in London in December, 1952. After India had be- come a republic, while remaining a member of the British Common- wealth, a change in the Royal Style and Titles became necessary in order to reflect new developments and constitutional relationships. It was decided \that each member should use a form appropriate to its own particular circumstanccs but retaining "a substantial element which is common to all,"' while the new title of the monarch as "Head of the Commonwealth" was devised as being acceptable to all mem- bers, including India. In each member nation an appropriate style has been agreed upon in accordance with the decisions reached, re- presenting a great variety but expressing also an essential unity. In Australia the title is: "Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith."

Royal powers.

The projec.ted royal tour of Australia early in 1954 drew attention to the question of the constitutional position of the Queen in this country. The Royal Powers Act (No. 74 of 1953) was passed for the purpose of providing that when the Queen is personally present, she may exercise any power under an Act exercisable by the Governor- General. The measure is simple enough and serves to remedy what might otherwise be an anomalous situation. The Act seems to have

1 See the Preamble to the Act.

been misinterpreted by the learned editors of the Australian Law Journal: and its true nature was subsequently explained in a letter3 from Mr. C. K. Comans, who pointed out that it does not purport to vest in the Queen powers vested in the Governor-General by the Constitution, even assuming that any alteration in this respect could be effected by a mere Act of Parliament.

Nationality and Citizenship.

The Nationality and Citizenship Act (No. 85 of 1953) introduces some minor amendments to the Principal Act. Formerly a n alien serving in any Allied forces was permitted to include his period of service as equivalent to a period of residence in Australia, if the forces were commanded by a British officer-but only apparently where this officer was directly responsible to a British government. Service, for example, under Lord Mountbatten during the war would not have been acceptable, since his was a joint appointment by the Allied Powers. The new Act now allows the Minister to accept such a period of service as a qualifying period.

Despite amendment of the. law from time to time, the provision of the original legislation still stands which requires British subjects being citizens of another Dominion to reside for five years before Australian citizenship can be acquired. I t is true, of course, that while resident they will have all the political rights of a British subject, including the franchise, but it seems an unnecessarily long period to insist upon in the case of those who for personal reasons may wish to acquire Australian citizenship. I t also reads rather un- favourably beside the provision of the United Kingdom's British Nationality Act4 which in the reverse case requires only one year's residence. Many Australian citizens, however, are conscious of at least one serious disadvantage in that British passports issued by the Australian Government do not at present allow the holder to visit a number of countries of which the Government, for political reasons, does not approve.

Northern Territory.

In 1947 a Legislative Council was established for the govern- ment of the Northern Territory, which had been administered since I g I I as a Commonwealth territory by. means of ordinances issued

2 Vol. 27, 721. 3 28 AUST. L. J. 81. 4 11 & 12 Geo. 6, c. 56, s. 6.

by the Federal Government. The Northern Territory (Administra- tion) Act (No. 89 of 1953) makes some amendments to the 1947 legislation. Provision is made for the Acting Administra-tor and mem- bers of the Council to take an oath (or make an affirmation) of office and allegiance, for establishing seniority of official mcmbcrs and permitting their resignation, and for the holding of clections, including the extension of the terms of office of elected members beyond the normal three-year term so that their elcction may coincide with Federal elections.

11. INDUSTRIAL LAW.

Seamen's compensation.

The Seamen's Compensation Act (No. 10 of 1953) was passed in order to bring thc compensation rights of seamen engaged in interstate trade, and injured in the course of their employment, into line with the higher amounts provided for employees of the Common- wealth Government in the Employees' Compensation Act I 930- I 95 I .

The Opposition expressed its agreement with the principle of increashg the value of benefits payable, but there was also criticism suggesting that even the new scales of compensation did not take fully into account recent increases in the cost of l i ~ i n g . ~

111. FISCAL MEASURES.

Grants to universities.

The demand for university education has increased considerably since the war, and there has been in consequence a pressing demand for financial aid to meet both running expenses and also capital ex- penditure. In a situation where large-scale private benefaction has virtually ceased, the Universities have turned increasingly to Govern- ments for subsidies from public funds. Under the Constitution, edu- cation is a matter which is left within the legislative competence of the States, but it has early been recognised that the States alone are not able to provide sufficient finance from their own resources. For this reason the Federal Government has been prepared to step in and assist. One of the best known illustrations of its assumption of responsibility was the Commonwealth Reconstruction Training

5 Indeed the Seamen's Compensation Act, No. 16 of 1954. has now raised substantially the amounts payable as compensation, again on a parity with the provisions of the Commonwealth Employees' Compensation Act, No. 15 of 1954.

made for exemption from na.tiona1 service on the grounds of con- scientious objection. This restores the right of appeal existing during the war.

Atomic energy.

The Atomic Energy Act (No. 31 of 1953) repeals the Atomic Energy (Control of Materials) Acts of 1946 and 1952 and while replacing them with similar provisions treats this important subject far more comprehensively than previous legislation has done. In view of new and extensive discoveries of uranium and its rapidly developing exploitation, new statutory provision had become essen- tial.

The Act, in the first place, establishes the Australian Atomic Energy Commission, to consist of three persons appointed by the Government. The functions and powers of the Commission are fully set out in Part I1 of the Act, and are very wide: The Commission is empowered, with respect to uranium and minerals found associated with it, to undertake exploration and mining, to dispose of products, conduct research, train scientists, distribute information, and publish reports. Sec. 17 (4) makes it clear that the Commision is to function only for Commonwealth purposes, in particular for the defence of the Commonwealth, and thus within the limits of the Federal Gov- ernment's constitutional powers.

Part 111 substantially re-enacts the two earlier Acts7 referred to above, and now repealed, with respect to the control of materials. Sec. 34 now provides that the powers conferred by this Part are to be used only for the defence of the Commonwealth, or in respect of things done in a Commonwealth territory, with the result therefore that anything done in a Sta,te may be done only for defence pur- poses. Sec. 41 replaces sec. IQA of the 1952 Act which permitted a person, duly authorised by the Minister, to enter upon land, take possession of it, and carry on mining there with all incidental powers necessary for the purposes of the operations. The new sec. 41, how- ever, applies to the whole of Australia, not being limited, as sec. IQA was, to Commonwealth territories. Other sections of Part I11 give the Government power to obtain information from persons about uranium and other "prescribed substances" such as plutonium in their possession, require notification of a discovery, or provide for the prohibition of the treatment etc. of a prescribed substance.

7 See Review of Legislation 1952, 2 U. WESTERN AUST. ANN. L. REV. 648-9.

Important security measures are set out in Part 1V. These are ncw to Atomic Energy legislation, but are paralleled in other existing statutes. "Restricted information", which is defined in sec. 5, and means, very broadly, scientific and other information concerning prescribed substances and atomic weapons, is not to be acquired, removed, or communicated with intent to prejudice the defence of the Commonwealtl~, on pain of twenty years' imprisonment.

Since proof of intent to prejudice defence may often be diffi- cult to establish, sec. 47 provides that the intent may be assumed from the doing of an act, or from the circumstances unless the contrary is proved.

V. REPATRIATION.

Preference for ex-servicemen.

The Re-establishment and Employment Act I 945- I 952 pro- vided by sec. 28 that ex-servicemen claiming preference in employ- ment who have been refused employment might appeal to the court of a police, stipendiary or special magistrate. The High Court of Australia, however, subsequently heldS that this section, since it con- cerned an administrative function and thus purported to invest State courts of summary jurisdiction with non-judicial powers, was not authorised by sec. 77 (iii) of the Constitution (which empowers Parliament to invest State courts with Federal jurisdiction) and was therefore invalid. Having in this way robbed aggrieved persons of a right of appeal, the High Court had, however, the good grace to hint at a Way Out. With the consent of each State, certain persons might be invested with the necessary non-judicial power. This consent having been obtained. a new ser. 28 has now been substituted by the Re- establishment and Employment Act (No. go of 1953) providing for appeals to "prescribed authorities" who are certain agreed classes of magistrates.

The Gilbertian flavour of the situation may perhaps be sufficient- ly diverting to stop one from thinking hard thoughts about federal systems of government. At all events the feelings of most people will be reflected in the observation of the Deputy Leader of the Opposi- tion, Mr. Calwell? that "instead of a police magistrate sitting as a

8 In Queen Victoria Memorial Hospital v. Thornton. (1953) 87 Common- wealth L. R. 144.

9 See Commonwealth Parliamentary Debates ( S e w Series) H. of R., NO. 13 of 1953, at 784.

court to hear appeals, we shall have a police magistrate sitting as a police magistrate", and as a result, "everybody should be happy."

Service pensions.

Further increases in pensions payable on the death of a member of the armed forces to his widow or widowed mother, or payable to a member himself on suffering total incapacity are authorised by the Repatriation Act (No. 69 of 1953). Such increases, largely in recog- nition of the rising cost of living, have been made annually since 1949. Among a number of amendments, a new sec. 43 has been substituted. The old section permitted the termination of a dependant's pension where a Repa'triation Board considered that continuance of the pen- sion was undesirable. There has long been considerable criticism of this provision, and the new section now provides that a pension may be discontinued where the member of the forces or his dependant has so requested in writing or where a dependant has for six months continuously failed to draw a pension.

The Seamen's War Pensions and Allowances Act (No. 70 of 1953) increases pensions for seamen and the dependants of seamen suffering injury or death through war services to the level of the rates under the Repatriation Act.

VI. PRIMARY PRODUCTION.

Promoting the use of wool.

The Wool Use Promotion Act (No. 23 of 1953) has reorganised the arrangements for encouraging the use of wool, replacing the 1945 and 1952 Acts of the same name.

The Australian Wool Board is henceforth to be known as the Australian Wool Bureau, in order to avoid any implication that it is concerned with wool marketing, and its powers and functions, prirnari- ly concerned with promoting the use of wool, are extended to include improving the production of wool and encouraging research aimed at promoting its use. Legislation of this kind has been very largely prompted because of the threat presented by synthetic fibres to the use of a commodity on which Australia's markedly depends.

It appeared from the explanation of the Minister for Commerce and Agriculture, Mr. McEwen, when introducing the bill,lo that it was yet undecided how the Wool Statistical Service was to be con-

10 See (1953) 221 Commonwealth Parliamentary Debates, at 347-349.

tinued, and the Act made it possible for it to be administered either by the Wool Bureau or the Commonwealth Wool Adviser. I t has since been arranged that the Service will be carried on by the Wool Bureau.I1 A large number of wool stores built during the war to house accumulated quantities of wool have been transferred to the Bureau by the Wool Stores Act (No. 91 of 1g53), though the Commonwealth may resume possession of them in the event of another wax.

Flax industry.

During the 1914 War the flax industry in Australia was estab- lished in order to provide a commodity of vital interest to the country's defence, and was revived in the 1939 War for the same purpose. After this war attempts were made unsuccessfully to dispose of the industry on terms which would make certain that it would be properly main- tained, and production was therefore continued under the control of the Flax Production Committee operating within the Department of Commerce and Agriculture. By the Flax Industry Act (No. 25 of 1953) a Flax Commission of five members has now been kstablished outside the Department to take over the functions of the Flax Production Committee, the Government's intention being that at a convenient time the industry may be handed over to private enterprise.

Wheat marketing.

The orderly marketing of wheat is of considerable importance to the Australian economy, but has always proved a cbmplicated matter because of the different interests involved and the necessity of secur- ing agreement between the Commonwealth and all the States, particu- larly for the purpose of arranging a uniform selling price. The Govern- ment had hoped to establish a stabilisation scheme embodying a guaranteed price, but since this would have necessitated a contribution by wheatgrowers to a stabilisation fund, it was promised that any joint Commonwealth and State plan should first be approved of by the growers by ballot.

Unfortunately, however, a deadlock was reached, in consultations between all the Governments concerned, precisely on the question of the home selling price for wheat. After agreement on this price was eventually effected, it was apparent that there would be no time to conduct a. ballot and pass legislation before the first harvest came in, and the Wheat Marketing Act (No. 49 of 1953) was then enacted

See Commonwealth Parliamentary Debates (New Series), H. of R. NO. 13 of 1953, at 678.

in order to provide a satisfactory scheme of marketing, but without price stabilisation provisions. The Australian Wheat Board has been con- tinued, and complementary State legislation has ensured a uniform home selling price and the direction of all wheat to the board for the purpose of marketing within Australia and exporting abroad. A wheatgrowers' ballot was also instituted, the final date for voting being the 30th September, 1954.

The passing of this legislation has also made it possible for Parlia- mentary approval to be given to the International Wheat Agreement of the 20th April, 1953. This has been effected by the International Wheat Agreement Act (No. 50 of 1953). The purpose of the agree- ment is to organise supplies of wheat for importing countries and markets for exporting countries on satisfactory and stable terms. This has been done by fixing maximum and minimum prices, and estab- lishing quotas for importing and exporting countries.

VII. INTERNATIONAL ENGAGEMENTS.

In 1948 a conference was held in London to discuss revision of the 1929 International Convention for Safety of Life at Sea. As a result of this a new Convention came into operation in 1952 after being ratified by 26 countries. The Navigation Act (No. 96 of 1953) was passed to give effect to the Convention in Australian law, prior to ratification by Australia, and it is annexed as Schedule VI to the Principal Act12 as amended. There are some new features in the provisions of the International Convention, but owing to the ad- vanced character of Australian maritime legislation, it does not effect any substantial alteration in our law.

Double taxation agreements.

I t has been recognised for some time that the incidence of double taxation-where a person or company resident in one country and earning income in another is taxed in both places-can cause some injustices and also seriously discourage the investment of foreign capital. In 1946 an agreement was concluded with the United King- dom to provide appropriate relief, and both its success and desirable- ness led to the conclusion, in May 1953, of a similar agreement with the United States. The Income Tax (International Agreements) Act (No. 82 of 1953) has now been passed to give effect to this latter agreement, and also to continue, in the same enactment, the previous agreement with the United Kingdom. Some classes of income are

1 2 Navigation Act 1912-1952.

now made taxable only in the country of residence. Other classes will be taxed in both countries, but the country of residence will allow a credit so as to avoid double taxation; the result will be that the tax payable will be the higher of the taxes provided for in the two coun- tries. Taxes on dividends are limited to 15% of the amounts paid to shareholders resident in the other country.

The agreements with the United Kingdom and the United States arc annexed as Schedules to the Act.

The Estate Duty Convention (United States of America) Act (No. 83 of 1953) and the Gift Duty Convention (United States of America) Act (No. 84 of 1953) give effect to similar conventions aimed at avoiding double estate duty and double gift duty.

Pearl fisheries.

The disputc between Australia and Japan concerning rights to pearl fisheries in waters off the north Australian coast has been sub- mitted to the. International Court of Justice, by agreement between the two countries, though it will clearly be a long time before any decision is reached. In the meantime, however, the Pearl Fisheries Act (No. 2 )

(No. 38 of 1953) serves to make clear the nature and extent of Australia's claim to the continental shelf and sedentary fisheries as- sociated with it.

Japan's record of pearl fishing in northern waters has been a bad one since that country's appearance there in 1935. Over-fishing by the lapanese has been so extensive and unrestrained that the industry has suffered serious economic difficulties. In April 1953 negotiations, in accordance with the Peace Treaty, were opened in Canberra with Japanese representatives in order to reach agreement on conservation and development of the pearling industry, there being an under- standinz that Japa.n would meantime restrict pearl-fishing to an area ~vcll outside Australian territorial waters.

In Au'pst, however, the Japanese gave notice that they proposed to movr at once into waters above the continental shelf and remove a quantity of pearl shell considerrd by the Australian authorities to br unrrasonably high. This was a surprising move, since discussions were at that time still proceeding and the Government therefore ac- cepted the notice ss a breaking off of negotiations. Subsequently, as mentioned above, the matter was referred to the International Court.

The new Actx3 indicates clearly that its provisions are to extend, in relation to Australian waters beyond territorial limits and being

l3 See also Rez'l'ew of Legislotiott 195-3. 2 U . WESTERY AUST. ANN. L. REV. 652.

above the continental shelf, to all persons and ships, foreign or other- wise, this being largely prompted by the experience with the Japanese. In defining the extent of the continental shelf, the 100-fathom line has been adopted. Sec. 5 ( 3 ) now describes it as "the sea-bed and subsoil of the submarine areas contiguous to the coasts of Australia and . . . of the Territories, to a depth of not more than one hundred fathoms." Provision is also made for the fixing of the limits of the claim, in accordance with international law, where the continental shelf also adjoins other countries.

Assumption by the Covernmcnt of sovereignty over the continental shelf for the purpose in particular of applying a system of licensing and control to the pearling industry appears in the circumstances to be eminently reasonable, though problems in international law arising therefrom will need careful attention.

VIII. GENERAL.

Television.

The Telrvision Bill, subsequently agreed to as the Television Act (No. 6 of 1953), was described by the Postmaster-General, when in- troducing it into the House of Representatives in the second-reading debate,14 as an interim measure, a fact indeed which is borne out by the brevity of the provisions. The Act empowers the Government to take appropriate preliminary action for the setting up of television transmission, but more importantly is also an emphatic indication of the Government's belicf in 3 dual system as in the case of sound broadcasting-that is, it envisages thc establishment of both national and commercial television stations. The Postmaster-General said that the Government took the view that this was what the Australian electors as a whole desired, and also claimed that a variety of pro- grammes was essential, the right to choose being important. NO doubt in making its decision the Government was also strongly moved by its recognised policy of encouraging private enterprise, while on the other hand it was evident that Mr. Calwell, the Deputy Leader of the Opposition, was not unfavourable to a government monopoly.

Before the bill was introduced, a Royal Commission under the chairmanship of Professor G. W. Paton had been appointed to en- quire into the question of trlevision-for example, the number of national and commercial television stations which could be effectively established, areas to be served, standards to be set up and observed, and so on.

1 4 .See (1953) 2'1 Cctnmon\\rn't!l Pal-1iamcn:ary Debates. at 33.

Some criticism was expressed by the Opposition, notably by its leader, Dr. Evatt, at the introduction of legislation before the Royal Commission had conducted its investigations and reported, and he moved, though unsuccessfully, that the second reading of the bill be not proceeded with until the important matters raised by the subject had been fully looked into, for which purpose the terms of reference of the Royal Commission might if necessary be extended. The Com- mission has since issued its report, which inter alia has recommended the establishment of commercial television. Further legislation-and further sharp political debate-is therefore to be expected. The situation is made doubly interesting by recent developments in the United Kingdom, where commercial television, subject to a curious method of supervision and control-is to be introduced, despite a marked conflict of opinion in that country.

Heard Island and McDonald Islands.

The territories dealt with in this Act were transferred from the control of His Majesty's Government in the United Kingdom to His Majesty's Government in Australia on the 26th December, 1947. Australian expeditions have been active there since that time for the purposes of scientific research, in particular meteorological informa- tion. Doubts about the law which was in force there have now been resolved by the Heard Island and McDonald Islands Act (No. 7 of 1953) which extends to the islands the laws of the Australian Capital Territory so far as they are applicable to them, though no statute is to be applicable unless it is expressed so to extend by thai statute or by another statute.

Service and execution of process.

The provisions of the Service and Execution of Process Act 1901-1950 allow for the service of civil and criminal process and the enforcement of judgments of the courts of a State or territory in another State or territory. The present Act (No. 48 of 1953) amends the principal Act by inter alia extending the provisions to Papua. and New Guinea and to Norfolk Island and by including additional court process within its operation. Part I11 of the Act dealing with the execution of warrants and writs of attachment has been re-cast, with- out significant alteration.

Life assurance.

The Life Insurance Act (No. 94 of 1953) has introduced a number of amendments to the Principal Act, the most important of

which is the repeal of the sections providing for the establishment of a, government insurance office. This step was strongly criticised by the Opposition which had been responsible for the original legislation when in office in 1 9 4 5 . ~ ~

National health services.

The provision of a Commonwealth-wide national health scheme has been the subject of legislation and political controversy for a number of years. The National Health Act (No. 95 of 1953) is by far the most comprehensive scheme which has, yet been established. It does not, however, go as far as the plan adopted in the United King- dom since it remains voluntary and there are, of course, very impor- tant differences in the respective methods of administration.

Two main kinds of insurance benefits are, in the first place, available-medical benefits and hospital benefits. The person desiring insurance has first of all to join a medical benefits society and a hospi- tal benefits society to which he pays certain fixed weekly contributions depending on the amount of coverage he requires and on whether he has dependants or not. In the First and Second Schedules to the Act are set out the professional services covered by the scheme and the amounts of medical benefits which the Commonwealth will pay for them. The benefit society is required to pay at the least the same amount to its member. Part V of the Act provides for the hospital benefits to be paid by contributions from the society and the Common- wealth. The insured person is required first of all to pay hospital or doctor's accounts, and then receives from his benefit society an amount equal to the Commonwealth benefit plus the society benefit, on pro- ducing his receipts. I t is the society's task to collect the appropriate contribution from the Commonwealth.

There is also provision for free drugs and medicines under the pharmaceutical benefits provisions of the Act. This has always been a costly service, but is undoubtedly a necessary part of the plan. Pen- sioners and their dependants receive special consideration in the Act, and are to receive medical services free of charge together with hospital allo\vances.

Part VIII contains important provisions for the establishment of Committees of Inquiry for both medical services and pharmaceutical services, consisting of suitable professional men, which are to super- vise the conduct of the appropriate services.

See Commonwealth Parliamentary Debates (New Series), H. of R., No. 13 of 1953, at 790 ff .

The Act does not prevent insured persons from choosing their own doctors or changing them if they wish.

The Minister for Health, Sir Earle Page, introduced the legisla- tion with a long speech in the House.l0 I t is a pity, however, that a measure of such intimate, personal concern to citizens should have called forth an amount of technical jargon rather inappropriate in the context. It is gratifying to learn that the national health has im- proved to such an extent that the average stay of a patient in a hospi- tal has been noticeably reduced. But it is hardly attractive to hear the Minister refer to this as a "quicker turnover of beds", which saved some large number of "bed-days". Is this simply a matter for the cold statistical approach, or is it more properly concerned with warm, human problems?

Therapeutic substances.

Therapeutic substances are those used for the prevention or treatment of diseases and it has long been recognised as important that standards of purity should be determined upon and maintained. For this purpose it has been an established practice to adopt the standards of the British Pharmacofeia. Reference has also been made by State legislation to this and the British Pharmaceutical Codex. Difficulties have arisen, however, because these works are not always. up to date; thus new drugs and medicines may be introduced for which no standards are published and which are therefore not subject to control. Under the Constitution the Commonwealth Government is limited in this field to dealing with national health benefits, imports, exports and interstate trade. Regulation of the manufacture of thera- peutic substances and their intrastate use are matters for the State Governments, though agreement has been reached for appropriate legislation in this respect. The Therapeutic Substances Act (No. 72 of 1953) empowers the Commonwealth to set up standards for these substances, which it may do by reference to the two English publica- tions mentioned above or by supplementary regulations.

Prize money.

The payment of prize money to serving personnel for maritime captures is a custom of long standing, though the method of distribu- tion has varied. After the end of the 1939 war, the United Kingdom Government decided that prize money should again be granted, but,

16 See Commonwealth Parliamentary Debates (New Series), H. of R., NO. 10 of 1953, at 154.

since the nature of modern warfare had changed circumstances con- siderably, for the last time.

Of the Australian share in the total prize money, £249,000 were allocated to the Royal Australian Navy, the amount being divided up among members of the service. The sum of £229,000 was also allo- cated to the Royal Australian Air Force, and since the question of individual eligibility would have been a very difficult one, and the amount payable to each person would in any case have been negligible, it was decided instead to use the money to provide residences for former male members of the R.A.A.F. in needy circumstances. This decision has been given effect to by the establishment of a trust fund under the Royal Australian Air Force Veterans' Residences Act (No. 92 of 1953) surely one of the most awkwardly entitled statutes on record.

L. J. DOWNER.