1st Parliament · 1st Session
Mr. Speaker took the chair at 2.30 p.m.
Mr.PIESSE(Tasmania)presentedapetition from the Presbyterian Church of Tasmania, praying that the Post-office might not be allowed to be used for the facilitation of gambling.
asked the Prime Minister, upon notice -
Whether he will place on the table any documents which he may have in his possession relating to the Northern Territory;
– The papers will be laid upon the table.
In Committee -
Resolved - That it is expedient that an appropriation be made from the consolidated revenue fund for the purposes of a Bill for the regulation of the Public Service.
Resolution reported, and agreed to.
Read by the Clerk.
– Perhaps some member will explain to the committee the meaning of the form that we are now going through. The practice which is now being followed is not the practice of the House of Assembly of the State of South Australia. I am quite aware that whore the passing of a Bill will require the appropriation of revenue, a message from the Crown must precede the action of the House in regard to that Bill ; but we are now asked to authorize an appropriation without knowing exactly what it is for.
– The practice in all our State Assemblies is virtually the same, although it may differ in detail. No specific appropriation is now being submitted to the committee, this being a committee for the consideration, not of a proposed Bill, but of the Governor-General’s message relating to a proposed Bill. This is a turnpike through which the message passes in order that it may be made applicable to the Bill, so that any expenditure which is incurred may have first received the sanction of the Crown, and then the sanction of the House. In the New South Wales Parliament the motions in regard to the introduction of Bills are more numerous, the resolution which is reported from the committee to the House being read a first, and then a second time, before the question is put that it be agreed to. In Victoria, however, the practice has been that which we. are pursuing now, and as we have no standing orders in force, it was thought advisable to follow the Victorian practice. This proceeding is purely a formal one.
– Can there be a debate at this stage 1
– There can be a debate, so long as it is relevant to the message. The message asks us to make the necessary provision in connexion with any expenditure which may arise out of the passing of a certain Bill. At this stage, neither the Ministry nor the House know what that expenditure will be.
– I do not think that the message from the Crown goes before a committee of the House in this way in New South Wales.
– No. In New South Wales the message is referred to the committee on the Bill, and when, after the second reading has been passed, the House goes into committee for the consideration of the Bill in detail, the message is read, and nothing more is done with it. In Victoria, however, the practice is for a committee to come to a resolution upon the message, and to consider the Bill afterwards.
– I understand that this is purely a formality ?
Question resolved in the affirmative.
Resolution reported, and agreed to.
Resolution - That it is expedient that an appropriation be made from the consolidated revenue for the purposes of a Bill to make provision for the defences of the Commonwealth.
Read by the Clerk.
– I should like to again call the attention of the com- mitte to this practice. The resolution expressly says that an appropriation is to take place,, and whether it is afterwards referred to a Committee of Supply or not, by carrying it we affirm the expediency of an appropriation, the amount of which and the purposes of which we are ignorant of. I do not think there is any obligation upon us, because Melbourne is our present habitation, to follow the procedure of the Victorian Parliament. The usual constitutional course is to have a measure requiring any appropriation of public money heralded by or afterwards supported by a message from the Crown j but if we pass this resolution, we shall have affirmed the expediency of expending money for purposes of which we are, at the present moment, absolutelygnorant. I I suggest that the South Australian practice be adopted.
– It is a most natural thing for any honorable member coming from any part of the Commonwealth to wish to see the procedure of his State Parliament adopted here ; but if we adopt the procedure of the South Australian Legislature, we are confronted with the difficulty which arises out of the non-adoption of the procedure of five other State Legislatures. The practice of the Victorian Legislature has been adopted in this instance because it is the practice which has been formerly followed in tthis Chamber, and to which a large number of honorable members are accustomed ; and because it does not radically differ from the procedure of other State Legislatures. I must demur from the doctrine that because a procedure lias prevailed in South Australia it must necessarily prevail hero. The authority for this practice is laid down in section 56 of the Constitution which says : -
A vote, resolution, or proposed law for the appropriation of revenue, or moneys, shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.
– “Shall not be passed.” The message can be brought in at . any time before the House deals final] v with the Bill.
– That is quite true, and I am to a certain extent responsible for the provision being worded in that convenient manner. If I may mention it “ with bated breath and whispering humbleness “ before the honorable members for South Australia, the invariable practice of the New South Wales Parliament has been that the introduction of a message from the Crown shall precede the presentation of any measure ; and Bills have been thrown out there by the score because their presentation has not been preceded by the introduction of a message from the Crown. I ask honorable members if it is not the more proper and fitting coUrse to have messages introduced before the introduction of a Bill, even though it may be constitutionally right to bring down a message at the tail cud of om; dealings with any measure ?
Surely the Government cannot be blamed, if in choosing between the varying practice of the different States, we adopt the practicewhich gives the fullest recognition to the privileges of the House.
– Is this the practice? which the Government propose to adopt permanently %
– Not necessarily. Stand-” ing orders to deal with this matter have yet to be passed. This stage is purely a formal one, but, in carrying out these formalities, *ii ( Joi la b to me that we. do best to adopt the course which best secures attention to the privileges of the House by dealing with the message from the Crown before the expenditure of money is authorized. In’ that respect any practice we now adopt is only a temporary practice. No doubt we shall have all these matters attended to in the standing orders which will be brought up by the Standing Orders Committee.
– The right honorable gentleman is opening up opportunities, for unlimited debate.
– Opportunities for mi-, limited debate are only opened to those honorable members who are disposed to debate anything to an unlimited extent. I would point out that even if [ proposed to adopt the practice of any one of the other State Parliaments, there would still bc five States that did not follow the practice. I am simply adopting this practice because it happens to be a convenient one, and for the additional reason that it seems to pay the most attention to the privileges of the House.
Mr. GLYNN (South Australia). - I am well aware that a message must be brought down in connexion with a Bill of this kind. I know that, in order to prevent the appropriation of too much public money, the right of initiation in connexion with Bills appropriating money must be left to Ministers of State ; and by consequence any Bill for appropriating money must be preceded or accompanied by a message. But I say that we should not go beyond the message. The Bill once introduced and placed before the House, the appropriation ought not to take place until the Bill itself has passed. That is the point. We are really appropriating money for purposes of which at the present moment we are in ignorance, lt is not because it is the South Australian practice that I am advocating the course I have done, but simply for the purpose of identifying a good practice with South Australia. As has been stated, the practice also exists in New South Wales.
I do not object to the message, which is essential ; but I object to the message authorising an appropriation for a purpose unknown to the Committee. The Prime Minister states that a part of the proposal is for the purpose of getting the consent of the Crown to proposed legislation ; but I had always thought that for many generations back the consent of the Crown was no longer necessary, and that as a matter of technical right we should not recognise the need for that consent.
Mr. BARTON (Hunter- Minister for Ex ternal Affairs). -What I meant to say was that no expenditure could be undertaken unless with a recommendation from the Crown, because that means that the Crown has been advised by responsible Ministers.
– I quite agree with that.
Question resolved in the affirmative.
Resolution reported and agreed to.
Mr. Barton laid on the table
Correspondence in reference to the Staple Pro ducts, Minerals, and Financial Position of the Northern Territory, South Australia.
– I think that it will be acceptable to the House if I now read a communication which has been received relative to the action of the citizens of the Commonwealth with regard to the Empire and the Imperial forces. The fact that the message is of such a character will justify me in laying it on the table and asking the Clerk to read the document. It is from Lieutenant-General Sir Alfred Gaselee, commanding the British forces in China.
The following letter was then read by the Clerk : -
Head-quarters Staff Office,
To the Prime Minister of the Australian Commonwealth, Sydney, N.S.W.
Sir, - I should be obliged if you would express to the Governments of New South Wales and Victoria my deep sense of gratitude to them for placing their respective contingents at my disposal. They arrived at a time when, owing to the withdrawal of theRoyal Welsh Fusiliers, the services af an efficient and disciplined body of British troops were invaluable to the China field force, and I cannot speak too strongly of the usefulness of the two contingents.
The Victorians were the mainstay of the British garrison of Tientsin, and were practically the nucleus of the police force of the British Concession, in which the maintenance of good order was of the utmost importance. They also did good service in the field during the Paotingfu expedition of October last.
The New South Wales contingent has been more immediately under my eye at Peking, and it has been a source of great satisfaction to me to have had so efficient and reliable a force at headquarters.
Both contingents have also rendered great assistance by furnishing guards and other ratings for railway service. Indeed, but for that assistance, it would have been difficult for us to have taken charge of the railway.
The services of the commanding officers have been already acknowledged by me inmy despatch to the Secretary of State, and it only remains for me to say how excellenta political effect has been produced by the appearance on so remote a stage as North China of these fine contingents from the Australian Commonwealth. They have been an object lesson not only to foreigners, but also to our Indian fellow subjects, of the patriotism which inspires all parts of the British Empire.
I have the honour to be,
Your most obedient humble servant,
Personal Fee to Serjeant-at-Arms.
For each day’s detention, including sustenance….. £2 2s.
Questions superseded. 129. A question may be superseded - . 1. By the adjournment of the House, either on the motion of a member “ That the House do now adjourn,” or on notice being taken and it appearing that a quorum of members is not present.2. By a motion “That the Orders of the Day be now read.” 3. By the previous question.
Bills finally passed, certified, and presented to the Governor- General. 211. Every Bill originated in the House of Representatives which shall have finally passed both Houses, shall be fair printed, and six copies presented by the Clerk of the Parliaments to the Governor-General for His Majesty’s assent, having been first certified by the signatures of the Speaker and the Clerk as having originated in the House, and as having finally passed both Houses.
Chairman of Committees appointed. 217. A member shall be appointed by the
House to be the Chairman of Committees, who shall hold office till he ceases to be a member, unless the House shall otherwise direct, and who shall take the chair of all committees of the whole.
– I move -
That until this House shall have adopted standing orders on the report of the committee appointed to prepare them, the draft standing orders laid on the table of this House on the 21st ultimo be temporarily adopted, with the omission of the word ‘ ‘ twelve “ in No. 38, and the substitution therefor of the word “five”; the omission from No. 39 of all words after the words “fifteen minutes “ ; the omission of No. 62 ; the omission from No. 63 of the figures “£2 2s.” and the substitution therefor of the figures “£11s.”; the omission of No. 129 ; the omission from No. 211 of the words “fair printed and six copies,” and lower down of the words “the Speaker and”; also the insertion in No. 217 of the words “each session” after the word “House” where it first occurs, and the omission therefrom of the words “he ceases to be a member unless the House shall otherwise direct,” and the substitution therefor of the words “his successor is appointed “ and the omission of No. 262.
I wish to make a short statement in connexion with this matter. It has been my desire to move the adoption of these temporary standing orders in such a form as to avoid any unnecessary debate upon them, and to meet the general opinion of honorable members. I have fully realized that permanent standing orders ought only to be adopted on the recommendation of the Standing Orders Committee, which was appointed last night. There is not the least attempt to usurp or anticipate their intentions ; but the question has presented itself as to what sort of practice ought to be followed in this House until the Standing Orders Committee reports, and its report is dealt with by the House. In the first place it has seemed to me that no standing order that is unusually drastic in the procedure of any of the Parliaments of the States, need be adopted in these temporary standing orders. If, for instance, we adopted as a guide for our temporary standing orders those of the House of Commons, we should import into our procedure the most rigorous of the rules of that House, including those as to the closure of debate, and dealing with disorderly members. If we were to adopt the standing orders of South Australia as an example, we should perhaps be making rulesunder which an honorable member might be fined £100 on arrest, and £50 on commitment.
– It is £500 in Queensland.
– Then I hope the honorable member has adopted a wise discretion in connexion with his experiences in that State. It has been my desire in the first place to meet the convenience of honorable members in avoiding anything unnecessarily harsh ; and, in the second place, to so mould these provisions that there may be some guide to Mr. Speaker in his dealing with various matters apart from having to consult the policy and practice of any one House of the States. My endeavour has been to select what appeared to be the most workable and reasonable rules in the various Legislative Assemblies without being too much bound by the strict terms of any one. I take it that this Commonwealth Parliament does not want to slavishly adhere to the practice of any one House among the States Houses. If we adopted the standing orders of New South Wales entirely, we should possibly find that that was unsatisfactory to members from Victoria, and the same thing would happen if we adopted the standing orders of Queensland or South Australia. It is something like devising a Tariff - honorable members cannot all have what they have been hitherto accustomed to, and the best course is to see that we get as good standing orders as we can, and that we adopt reasonable practices as a temporary measure. I take it that if the Standing Orders Committee take advantage of their opportunities they will be able to bring up a report within a fortnight, and we shall he able to deal with the matter soon afterwards, although, possibly, we shall then be in the thick of our work upon Bills. Now it will be observed that the motion which I have moved contains certain amendments of the draft standing orders which have been circulated. I will explain those amendments. If honorable members turn to paragraph 38 they will see that it deals with a provision relating to motions for the adjournment of the House, and requires -that at least twelve members sholl rise in their places to indicate their approval of the motion. But it has been pointed out to me, and I quite agree with the suggestion, that as these are temporary measures, a number of members equivalent to the number representing one of the least populous States, ought to be sufficient to indicate approval of a motion for the adjournment. The matter in question may be one relating entirely or largely to the interests of that particular State; and unless the members for that State could secure the adhesion of some other honorable members in this House, they might be debarred from the opportunity of discussing an urgent matter. Although I did not see that point at first, when it was suggested to me I saw it at once. Therefore, I propose to make the alteration which is indicated in the motion, substituting the word “ five “ for the word “twelve.” The next standing order in which I propose to make an amendment is No. 39. It is as follows : -
In speaking to such a motion the mover shall not exceed 30 minutes, and any other member shall not exceed fifteen minutes, and the whole discussion on the subject shall not exceed two hours.
It appears to me that that raises a kind of discussion which may well be left until the Standing Orders Committee take up their work. Therefore, nothing more is needed than a reasonable time limit to the length of speeches. I propose to abandon the last part of that standing order, and to avoid at present any limitation of the length of the discussion. The next paragraph to which I will refer is No. 62. This concerns fees for arrest and commitment, and says that honorable members shall be fined £5 for arrest and £10 for commitment. I think we might do without that standing order at all for the present, especially as the tone and temper which the House has shown do not indicate that there will be any necessity for an appeal to such a drastic regulation. In the next place the Serjeant-at-Arms, if there happen to be an arrest, which I do not anticipate, is entitled to some remuneration for his care of the honorable member whose company may no doubt be very pleasant, but for whose keep it is necessary there should be payment. I have, however, reduced the charge from £2 2s. to fi ls.
– Suppose the honorable member does not want to be kept ?
– The honorable member may not want to be kept ; but if he is kept, he must pay for his keep.
– The charge is too much.
– I am sure the honorable member will not run the least risk of having to pay. Standing Order 129 has reference to the superseding of questions ; but it was found, on revising the standing orders, that the ordinary unwritten practice was quite sufficient, and so 1 have omitted that standing order. Standing Order 211 is next, and deals with the method of printing, presenting, and certifying Bills that are passed ; and I have adopted a more convenient course by the striking out of certain words, lt is really a clerical alteration with the object of making the proceedings less formal and more prompt. Standing Order 217 deals with the appointment of the Chairman of Committees. Originally the standing order provided that the Chairman of Committee should hold office during the Parliament, and until he ceased to be a member. As the Standing Orders Committee will have the whole question of this appointment before them in framing the permanent standing orders, I considered it quite sufficient to make the first appointment - until the committee reported - an appointment for the session, and therefore I have altered thestanding order ito read in this way -
A member shall be appointed by the Houseto be the Chairman of . Committees, who shall hold office until his successor be appointed, and who shall take the chair of all committees of the whole.
These are the terms on which the honorable member for Riverina was appointed Chairman of Committees last night. The section is to be each session, and the reason for holding the office until the successor be appointed is to enable the Chairman to perform any duties which may fall on him during the recess in relation to the House or otherwise. This, I think, will be approved, of by honorable members as a reasonablealteration. If honorable members turn tothe provisions under the heading of the- “ previous question,” they will find standing orders to which exception has been. taken on the ground that they present a form of closure. I wish, however, to give my assurance that there can be no possible form of closure in these standing orders. Procedure by way of the previous question is nearly as old as the House of Commons, but the old time-honoured form which has now been abandoned, used to be the motion “that the question be now put,” and there was observed the same absurdity as has been seen in our own Legislatures, of a gentleman moving that the question be now put, and he, with his seconder, and all on the same side, moving over to the opposite side, and voting that the question be not put, so as to shelve the question. It seems a more reasonable practice to submit the motion in the direct form, that “ the question be not now put,” so that honorable members, if they want to carry the motion, will vote in favour of it, and so shelve the question, thus obviating the necessity of going over to the other side. Honorable members may rest assured that this is the only alteration in practice, and I would not be prone to give that assurance if I had not considered the matter very fully indeed. I have consulted Mr. Speaker on the subject, and I am quite sure if any doubt arises, he will be prepared to give an expression of opinion which will show honorable members what his action is likely to be if any occasion arise under these standing orders.
– Would there be any objection on the ground of the motion being a. negative motion t
– The ordinary rule of Parliament is that we cannot affirm a negative. Under the old practice we affirmed an affirmative and then voted a negative, which is more absurd, and, between the two absurdities, it has been deemed reasonable to choose the more intelligible, which is that now proposed. The whole object of the proposed question is to shelve, not the discussion, but the decision of a motion before the Chair. The original question remains under discussion after the previous question is proposed, and the debate goes on until exhausted. These standing orders cannot stop debate. The only thing that happens is that when the debate on the previous question and the original motion is exhausted, and the whole thing is done with, the two motions are put in succession. If the previous question is affirmed the original motion is shelved ; but if the previous question is negatived, then the vote has to be taken on the original question. This standing order is only the old practice put into a more reasonable shape, and there is not the slightest attempt to alter or impair the limits of discussion. These limits are not abridged, but remain exactly where they were before the wording was altered. I thought it necessary to make this explanation, because I found that these three standing orders gave rise to a reasonable apprehension on the part of honorable members, and I will go so far as to say that some doubt was at first sight created in the mind of one of my colleagues. But as soon as I explained the matter he saw that the practice really remained unaltered. After conversation with an- honorable member of the House I thought it wise to consult Mr. Speaker, whose opinion - and I am sure I am not taking his name in vain - was found to be the same as that I have expressed. This is all I deem it necessary to say at present.
– Will the Premier look at Standing Order 262, which is very different from the practice in New South Wales in reference to a member not being able to speak to the amendment.
– That standing order reads : -
A member, having spoken to the main question, cannot speak to any amendment thereof, nor to the previous question.
– That would be very inconvenient at times.
– I think it would be just as well to drop that standing order, and I intend to do so. We know a good deal of time is sometimes wasted by members making speeches on successive amendments, but, of course, occasionally it happens that speeches on amendments are valuable, and are not a waste of time at all. I am content to leave the standing order to discussion by the Standing Orders Committee, and will add to my motion the omission of Standing Order 262. I do not think it necessary, considering the time honorable members have had these orders in their hands, to make any further explanation at this stage. I do not’ want to add to the newspaper accusation that the Government are wasting time, but I thought it necessary to make a short explanation, which goes far to show that the only desire of the Government is that there may be some reasonable basis of action for the Speaker’s decisions until we have a pronouncement in the report of the Standing Orders Committee.
– Does the honorable member think it necessary that five members should be required to rise in support of a motion for adjournment 1
– I certainly think there ought to be a certain number of members rising to support a motion for adjournment. There are times when honorable members deem it their duty to use all the forms of opposition, and it would be impossible to get to Government business unless there were some limit to the number of members who must rise to support a motion for adjournment.
– I think honorable members generally will give the Government credit for desiring to facilitate the business of the House by the motion they have brought forward. At the same time the matter is surrounded by great difficulty. The very interjection which I made in regard to order No. 262, and to which the Minister replied, shows that we may possibly be passing pro formd for a limited time rules which may contain some clause which will be very inimical to free debate. The difficulty I see at the present moment is that if we once begin to discuss any clause we think should be omitted or amended, we are practically beginning the consideration of the standing orders right through. So far as I am personally concerned - of course I feel this is more a matter for the House and is not a party question in any sense - I feel that if there is no clause that is of vital importance to the conduct of business or the freedom of our debates - no clause to which an honorable member can refer as interfering in any way to that extent- the proposal is a reasonable one. At the same time, it all depends on whether there is one or more clauses in the motion which might be the subject of a long and continuous debate. It seems to me we should decide very shortly as to whether or not we can comply with the proposal of the Prime Minister. Certainly if there is going to be any debate of a lengthy character on the whole of these rules, practically as if they were before the House to be finally dealt with, it would be better to shelve the whole question at present. But, as I have said, it is a matter for the House. I give the Government credit for desiring to facilitate public business, and so far as I am personally concerned, unless it is proved by an honorable member, who may have made a special study of those rules, that there is any provision which is dangerous, and which the Prime Minister is not ready to remove when the suggestion is made, I shall feel it my duty to vote for the motion.
– The object of Standing Order 243, dealing with Committee of Supply and Ways and Means, seems to me to fix stated days, mentioning every third Thursday, for sitting in committee. I do not know whether it is the intention of the Government to spread financial debates right through the session.
– Or whether this provision will be taken to be inoperative except in so far as it makes it imperative to go into Committee of Supply and Ways and Means on a particular day.
– It is what we call in the Victorian Legislature “ grievance day.”
– This standing order is adopted from a Victorian standing order which has been found most beneficial, because while motions for adjournment have been put under some limit, this “ grievance day,” as it is called, every third Thursday, has enabled members to raise any urgent question of which they have not been able to give notice. It has afforded a safetyvalve for honorable members of the House on one of the three Government nights, and experience in Victoria has shown that the privilege has not been abused.
– From that point of view I rather agree with the standing order, but I was not quite sure what the intention was, because in the State of New South Wales the practice is quite different. There we have had to rely solely on moving the adjournment of the House for the ventilation of grievances, until the transaction of financial business proper comes on.
– I am quite prepared to leave the standing order out, though I think it a desirable one.
– - I do not wish the standing order left out, but only wanted an explanation of how it was going to work. I take it that it is not intended to proceed with financial business only on the third Thursday, because it would probably lead to some confusion in the conduct of other business and in regard to Bills in hand if we proposed to abandon them every third Thursday,’ leaving of course only two days in the week for pushing forward large measures of policy other than those of finance. I know of no objection to the course which is now proposed. It would be most unwise for us to adopt the standing orders of any one particular State in preference to the proposal which is now before honorable members. I have gone through the temporary standing orders very carefully, and I can see- especially with the alterations that are now proposed - nothing of vital importance to which, objection can be taken. At the same time I can see some things, which if they are allowed to remain in the standing orders will be discussed by the House, and probably rejected. There are two or three things to which objection may fairly be taken, but the committee may see the unwisdom of allowing them to remain in the standing orders, and wo may save time by passing them tentatively now.
– I would like to direct attention to Standing Order No. 38, which certainly contains a restriction of the rights hitherto enjoyed by members of the State Parliament of South Australia. It seems to me that the provision referred to deprives honorable members of a right which they should always possess. Why should I, if I feel strongly on a particular subject, have to ask the permission of any other honorable member to bring that matter under the notice of the House? The utterances of the Prime Minister lead one to suppose that in reducing the number of members who will be compelled to approve of a motion for an adjournment being moved, from 12 to 5, he looked ipon the only question which could possibly arise as being a State question.
– I did not mean that. I meant that there might be one.
– As the provision stands, an honorable member who may be desirous of moving the adjournment of the House to call attention to some matter upon which he feels strongly must first get the permission of other honorable members. I consider that is a great infringement upon our individual rights, and I am sorry to see any restriction whatever in that respect.
– Do not forget the restriction in South Australia. There, any honorable member can object to the debate proceeding at any time.
– I am aware of that.
– This is more liberal than the South Australian standing orders, then.
– It is not. It places an honorable member in the position of having to go round and ask the permission of other honorable members before he can bring any matter under the notice of the House. Moreover, what may appear a grievance to one honorable member may not appear so to another. I decidedly object to having to secure the acquiescence of other honorable members before I am at liberty to bring any matter under the attention of this House.
– The honorable member can give notice of motion on the subject.
– I know that on motions for adjournment by private members very good work is often done, and I confess that I can see no reason whatever for the proposed limitation.
– We should sometimes getthrough no business at all if we had no. limitation.
– We had to introducethis order in New South Wales because thepractice of moving the adjournment of theHouse was so abused.
– I do not know what the Government have had to do in New South. Wales, but certainly two wrongs do not make a right. There ought not to be any provision in the standing orders which will prevent an honorable member from bringing forward any question upon which he may feel strongly, even if he has to go to the extent of moving the adjournment of the House. I protest against this clause, and I trust that the Standing Orders Committee will seriously consider whether there is any necessity for the restriction.
– Personally I would much prefer to see the standing orders not passed temporarily, though I would be very sorry to interrupt the desire of the House to temporarily adopt what is evidently a compromise between various standing orders. But we have got on very well up to the present without standing orders. The good’ sense of the House has obeyed the directions of Mr. Speaker, which are evidently founded on thebest practice of the House of Commons. I think that if these standing orders were gone’ into in committee the great bulk of them would pass without question.
– They are to be gone into in committee as soon as possible.
– But I think the Government ought to have taken the initiative in the matter.
– We could not until theHouse had passed the Address in Reply.
– But the Address in Reply has been finished. I repeat that if these- standing orders were gone into in committee,, the great bulk of them would pass without, question. Many honorable members maymake a keen study of the standing orders,, and may help discussion in the House, butthey will not have an opportunity of doingso in the Standing Orders Committee. I ask. the- Prime Minister to put a time limit on. the operation of these temporary standingorders.
– They are much less drastic than any standing orders that a committee will recommend are likely to be.
– The right honorable gentleman is now going into* the character of the standing orders, and is almost disparaging the committee which has to consider them.
– My honorable friend misunderstands me. I did not mean that. What I say is that we must have some guide for Mr. Speaker and the House, and the Standing Orders Committee will probably deal with matters which I have omitted on account of my desire not to deal with drastic points
– I accept the right honorable gentleman’s statement. I do not wish to propose that the House should proceed without written standing orders until these have been dealt with in the ordinary way. But I want to suggest to the Prime Minister one or two things which I think he might with advantage incorporate in this motion. The first set of standing orders submitted have been subjected to revision, and even after revision have been revised and revised again.
– That shows the care that has been exercised.
– Perhaps we can amplify that care by one or two more suggestions. With regard to the 38th standing order, I do not know whether.it is advisable to mix up the two adjournments that may take place on motions. One is the adjournment of the House, and the other refers to a motion for adjournment when the hour of assembling ou the following day is varied. That is really an informal motion. “That the House at its rising adjourn until a certain hour,” which is not the ordinary hour of meeting, is the usual form of motion upon which a discussion upon a matter of urgency takes. The adjournment of the House is moved in the form “ That the House do now adjourn,” but there is another motion which gives honorable members an opportunity for discussing a matter of urgency, and that is “ That the House at its rising adjourn till a certain hour.” Last Friday it was moved “ That this House at its rising adjourn till 2.30 p.m. on Tuesday,” but when the sessional order was passed yesterday the motion was in the form “ That this House do now adjourn.” The sessional order fixes the hour at which, without a motion varying it, the House will meet. If an honorable member wishes to move an informal motion he varies the hour at which the House ordinarily meets.
– The practice Ls different in different States.
– Irrespective of the difference in practice, I say that the better practice, even from the point of view of conserving the privileges of the House, is to have different motions. Why should the standing orders not allow a private member to move the adjournment of the House ? Under Standing Order No. 38 the only person who can move the adjournment of the House is a Minister of State. That is a bid practice. It is not the practice in England, and it is not the general practice throughout the States. Why should any honorable member, feeling that Ministers have lost the control of Parliament, without the suspension of the standing orders, not be allowed to move the adjournment of the House ? It is sometimes a speedy method of execution that is really merciful to Ministers.
– The Kingston patent.
– As my honorable friend reminds me, it has been patented by the Minister for Trade and Customs, who is generally a good authority upon standing orders.
– Our patent was infringed by the honorable member.
– The better way, it seems to me, would be to have two separate motions for adjournment.
– Surely that is a matter which is almost verbal, and which the Standing Orders Committee can look after !
– lt is not verbal. The taking away of the power that exists in England and in some of the States of a private member to move the adjournment of the House is a matter of substance and not a verbal matter. There is another matter. Under the Constitution we have given to the Governor-General power to suggest amendments in a Bill. It is not the practice in England because the Crown has no longer the power to suggest amendments in Bills. I would suggest that inconvenience may arise in connexion with two clauses of the Constitution. There is one in respect to the joint sitting, and another in respect to amendments of the Constitution which have been adopted by the electors on a. double referendum. I say that, though we have technically given the power to the Crown to suggest amendments in Bills which have gone through the joint sitting or have been adopted by the electors on a dual referendum, we ought not to put in the standing orders a provision recognising the right of the Crown to suggest such amendments. What right has the Governor-General to suggest amendments under clause 128 of the Constitution Act 1 When a Bill has been adopted by the people on a referendum, why should the Governor-General be afterwards recognised as a party to legislation except so far as to give the assent of the Crown 1 But under the Constitution technically the Governor-General can suggest amendments in a Bill which has passed through the joint sitting, or which may have been adopted by the people on a referendum. I would suggest that, as we have unfortunately in the Constitution allowed this power to the Governor-General, we ought to negative it as a matter of practice in the standing orders.
– We should override the Constitution by the standing orders.
– Not at all. We may confer a power on the Governor-General, but we may establish a practice to which he is obliged to bend. The Crown in England has the right to suggest amendments, but as a matter of practice it is not allowed to do so. The practice has been abrogated. As this is a matter that affects the privileges of the Houses, if the Prime Minister does not wish to deal with the question now, it can be considered by the Drafting Committee. But 1 suggest that it is possible to amend the standing orders so as to immediately deny the right to which I refer.
Mr. G. B. EDWARDS (South Sydney).Will the Prime Minister consider Standing Order 346, which relates to secret committees ? There is no standing order dealing with the constitution of a secret committee.
– There is undoubtedly power to appoint a secret committee of any kind, and precaution is taken to provide for the event of a secret committee being appointed.
– It would be better to have a standing order providing how secret committes are to be appointed, and for what purposes. Then Standing Order 264 says that the name of His Majesty or of his Representative in the Commonwealth shall not be used “ irreverently” in debate. I think that the term “disrespectfully” would be abetter one to employ.
– I shall ask Mr. Speaker to refer that matter to the Standing Orders Committee, of which he will be the chairman.
– I would invite attention to Standing Order No. 1, which provides that -
In all cases not provided for hereinafter, or by sessional or other orders, resort shall be had to the rules, forms, and practice of the Commons
House of the Imperial Parliament of Great Britain and Ireland in force at the time of the adoption of these orders.
That is a very comprehensive provision, and it has occurred to me that it might be used as a sort of drag-net to apply the closure rules of the House of Commons to our proceedings, though I do not suppose that that is intended. Standing Order 25 of the House of Commons provides for the application of the closure in connexion with the putting of a question ; but I understand that it is the intention that no such rule shall apply to our proceedings. I would also point out that this comprehensive standing order imposes upon us all the limitations, as well as all the privileges, of members of the House of Commons. Among the limitations are numerous restrictions upon honorable members’ rights in committee. For instance, in Committee of Ways and Means a member of the House of Commons is not allowed to move an amendment or motion having the effect of increasing a proposed tax.
– I think the honorable member will find some provision in regard to that matter in these standing orders.
– There was such a limitation in the standing orders as originally drafted. Those standing orders provided that no member except a member holding office should be permitted to move the increase of a tax in committee on a Bill ; but I am glad to see that that restriction has now been removed. But, under this drag-net provision to which I refer, we may be bound by the disability which binds members of the House of Commons. There is no Constitutional restriction upon honorable members in regard to the increasing of taxation, though there is a Constitutional restriction upon them in regard to the increasing of appropriation. I hope that our standing orders will not limit the rights and privileges of honorable members in regard to mattei-s of taxation. When we go into Committee of Ways and Means on the Tariff, we should have a free hand to propose, not only the reduction of proposed duties, but also the substitution of other duties, and, if necessary, increases of duties.
– I shall move the adoption of the report of the Standing Orders Committee before I ask the House to deal with the proposed Tariff.
– Then, if my remarks are kept in mind, I shall be quite satisfied.
– I should like to know the reason for Standing Order 298.
– It has always been regarded as highly disorderly for a member to call for a division and then leave the chamber.
– But why should Mr. Speaker have the power to say how a member shall vote? We might as well give Mr. Speaker power to say what views a member shall express upon any particular question.
– A member calling for a division in the case to which the standing order applies is always a member who is in a minority. It is only when an honorable member is in a minority that he wishes to avoid voting after he has called for a division, and that is why it is provided that his vote shall be recorded with those who in the opinion of Mr. Speaker are in the minority. The standing order only crystallizes the regular practice of Parliament.
– I think it should bo left to the member himself to say how he will vote.
– I think there is something in the contention of the honorable member for Macquarie. The usual practice is to record an honorable member’s vote on the side on which he gave his voice. If he called for a division on the side of the ayes, his vote is recorded with the ayes, and if he called for a division on the side of the noes, his vote is recorded with the noes. In my opinion that is how the standing order should read.
Question resolved in the affirmative.
– I move -
That the Bill be now read a second time.
The measure which I have the honour to submit to the House is one which fortunately calls for a comparatively brief introduction. I regret to learn that, owing to some mischance, copies of the Bill have not found their way to the Melbourne addresses of one or two members of the Opposition.
– Quite a number of us have not a copy of it yet.
– I am informed by the officials of the House that copies of the Bill were sent six days ago to the then known addresses of every honorable member.
– No copies of it have been placed in our boxes in the Opposition room.
– It may be that the measure is regarded as a treasure by some acquisitive persons as being the first measure presented to this House; I can find no other explanation of the accident which has occurred. The Bill, which involves no principle other than has been universally accepted, is a measure providing for the simplification of the language of Acts of Parliament, and the shortening of their terminology. It constitutes in a sense a legal dictionary, particular meanings being assigned by it to particular phrases, which must be used over and over again in almost every Act of Parliament. Instead of repeatedly defining these familiar phrases in every Act in which they occur, definitions of thom are gathered together in the sections of the measure which honorable members are now asked to consider, so that when these phrases are met with in other Acts, reference may conveniently be made to this Act for their definition. The measure is necessarily a compilation, and possesses scarcely an original feature. But it may assist honorable members to proceed with what will be essentially a committee discussion if I, for a moment or two, direct their attention to one or two provisions to which they may wish to devote special consideration. First of all, honorable members will find it provided in Clause 2 that -
This Act shall apply to all Acts of Parliament, including this Act, and shall bind the Crown.
The intention of the introduction of the phrase, “ and shall bind the Crown,” is that in the event of any future legislation being introduced affecting, or in any way limiting or restricting, the prerogative of the Crown, we shall be able to apply without question to the words of that measure the definitions which are contained in this Bill. We shall be able, without defining them again, to use words in those Acts of Parliament which are by this Bill given a certain meaning. In all Acts binding the Crown they will be taken to be used in the sense given to them by the Bill. This provision may be regarded as a somewhat novel one, and I have therefore invited the attention of honorable members to it. It may be said that it is unnecessary to provide in advance for a contingency of this kind, and that it would be sufficient to take the necessary steps to make clear to what extent the prerogative is limited, and the Crown. bound, when a measure affecting the prerogative is brought forward ; that is tenable; it is a matter for argument; but the provision has been included in the Bill for the consideration of honorable members as a means by which the language of such an Act might bc shortened.
– Has not .the phrase been objected to by the Home authorities 1
– Yes, in a particular connexion, because then it applied to the whole Constitution, and the Home authorities naturally said that the introduction of such a phrase might seriously affect a measure so far reaching in its effects as that which established the Commonwealth of Australia, giving these States new powers in regard to external affairs which might involve relations with foreign countries. Of course the immediate aspect which occurred to them had reference to the proposed limitation of judicial authority in connexion with appeals to the Privy Council. In addition to that construction, the law officers of the Crown dwelt upon the fact that a measure such as the proposed Constitution touched the foreign and domestic interests of the Empire at so many points that it was hard to see how far the phrase might riot carry them.
– But they had no doubt as to the meaning of the term.
– They insisted upon it in the Canadian Act.
– They used the phrase themselves in section 150 of the English Bankruptcy Act of 1883, and in their own Interpretation Act.
– They refused to recommend the Canadian Act because this provision was not in it; but it is questionable whether the words are necessary in this Bill.
– We have also the Canadian instance. Honorable members will see that the next group of clauses, 3 and 4, are taken directly from the English Act. Clauses 5 and 6 are purely formal. There is nothing calling for further notice until we come to clause 11, where we have taken advantage of some provisions which will be familiar to my honorable and learned friends from New South Wales. They are used in their interpretation of Acts in connexion with the expiration of enactments. The clause speaks for itself, and will probably prove to be useful. The subsequent clause relates to the interpretation of an enactment for continuing a temporary Act. These clauses, I understand, have been approved by professional opinion in New South Wales, and have been of some service in that State. Clause 14 is a provision which to some honorable members may appear superfluous, but is to be found in the Victorian Interpretation Act. It provides that the headings of the parts, divisions, and subdivisions into which any Act is divided shall be deemed to be part of the Act.
– Has the honorable gentleman considered the effect of the Commonwealth Act in regard to Bills which expressly or by implication repeal State Acts 1
– I take it that these clauses would apply.
– In so far as the repeal is effective the clause would apply.
– I should be happy to hear the honorable member on the point in committee. I call attention to ‘clause 14. It is taken from the Victorian Act, while clauses 16 and IS are taken from the New South Wales Act. These clauses practically embody what we all know to be law already,- but they have been placed in this Interpretation Bill to put the matter beyond all question, so that any person who may read them may, without any knowledge of constitutional law, understand them. Then I come to what may be termed an original element in the Bill. I allude to clause 20. Here we are called upon to give a certain number of definitions of what must be very .familiar terms in all measures passed by the Commonwealth Parliament. They amount to little less than the application of familiar terms to federal conditions, and I pass them over as not calling for special notice at this stage.
– The second definition says - “ Australia shall mean the territory of the Commonwealth.” May there not be some complication between this definition and the definition of territory acquired by the Commonwealth?
– The reason the definition requires to be given is that the word “Australia” is a very convenient and short term to imply the whole territory of the Commonwealth. We adopt it because it has a well-understood meaning in the public as well as the legal mind. Passing over this definition clause as not calling for special notice, I direct the attention of honorable members to page 6. The definitions there relate to such judicial expressions as “The High Court,” “The Federal Court,” “Court of Federal Jurisdiction,” “Court of Summary Jurisdiction,” and as to what is meant by “Federal jurisdiction.” That is defined to mean “ Jurisdiction as to matters in respect whereof the High Court has or is capable of being invested with original jurisdiction.” Honorable members will have in their minds two important sections of the Commonwealth Act, one of which endows the High Court under the Constitution itself with an original jurisdiction, while the other allows an ex-‘ tension of the original jurisdiction in certain defined directions. The words “Federal jurisdiction “ here used are to be taken to embrace the whole of the original jurisdiction - either that conferred by the Commonwealth Act or that which may be conferred by subsequent enactment upon the High Court or Federal tribunals. The definition will be found very valuable in connexion with the measures which will shortly be laid before the House for the establishment of the judicial powers of the Commonwealth. Then there arc more English clauses until we come to pages 8 and 9, where honorable members will notice that a part of clause 35 and the two following clauses are taken from the New South Wales Act. Some honorable members may wish their attention drawn particularly to clause 38, in which we accept the English plan of measuring distances for the purpose of any Act. We say that the distance shall be measured in a straight line on a horizontal plane. This differs from the plan in force in New South Wales, and there is a good deal to bc said in favour of that as more convenient than the method proposed by the Bill It would certainly be a more convenient mode of measurement under Australian conditions.
– Is that the way the 100 miles limit with regard to the federal capital will be measured ?
– Yes. Still we think it better to apply to all Federal Acts, the English plan of measuring in a straight line. Finally, honorable members will see in clauses 41 and 42 provisions dealing with the citation of Acts ‘of Parliament. We have adopted the plan of citation used in New South Wales, giving the secular year and the number of the Act passed in that year. This plan of citation appears to be more convenient than that adopted in Victoria, where we have adopted consecutive numbers for the Acts and the year of the reign in which they were passed, giving no other clue to the year in which they were passed. Honorable members will therefore see that this Bill is a stepping stone and a convenience intended to simplify legislation in the future, and to shorten its expression. These are two objects which need not be further commended to honorable members. I shall welcome criticism in detail when wo get into committee. It is needless to say that there is no possible party complexion in the proposal, and that all the assistance that honorable members can render in perfecting what ought to be a very useful if modest measure will be welcomed.
– I think every honorable member will agree that this is a Bill of .great importance. It is one of the first measures that should be passed by this Parliament, and every section of the House will, no doubt, render its assistance. It is a very technical Bill, and one more for legal members tthan for laymen to discuss. But I think that as many honorable members have not had copies of the measure sent to them, it may be well to go into committee pro forma, and then have the matter adjourned until a future sitting. I take it that the Bill is entirely one for consideration in committee, and I can promise my honorable and learned friend, who is in charge of it, that honorable members on this side of the House will do everything they can to assist him in passing it in the shortest possible time.
– I think an alternative course can be adopted which will meet the convenience of honorable members equally well. There is no desire to rush the Bill through, though the Ministry wish to have it passed as soon as possible, because it enables an interpretation to be placed upon certain terms and provisions of various Acts which it is necessary to pass, and because until it is pissed there will be a doubt as to what interpretation ought to be placed upon those terms. I suggest that we should go into committee upon the Bill now, and that afterwards if honorable members opposite desire to have any clauses recommitted, that course should be taken.
– Speaking as a layman I should like to make a suggestion with regard to this measure. I have had a copy of the Bill for a week, but it was not sent to me. I picked it up. I have read it several times, and I see the immense importance of it. I think we might make some improvement in regard to the practice in connexion with the repeal of Bills. We might, for example, repeal the whole of a Bill when it was necessary to repeal only a portion of it, and then re-enact the portion which it was desired to retain. That would be better than having a number of amending Acts, which tend only to cause confusion. We could say that any Act to repeal part of an Act should repeal the part in question, but should, at the same time, re-enact the remaining portions of the Statute. We should then only have one Act upon the subject, and there would not be the complications which arise under the present practice. I merely throw this out as a suggestion for the consideration of the Attorney-General between now and the time when we shall finally deal with this Bill. If we adopted the suggestion, we should not have upon the statute-book of the Commonwealth the large number of amending Acts which we have upon the statute-books of the States.
– This Bill will undoubtedly be very useful. It seems to me to be very well drawn indeed, and I have great pleasure in complimenting the draftsman on its preparation. There are, however, several clauses in the Bill we ought not to adopt without deliberation, and with respect to which there may well be a considerable amount of discussion. I merely wish to draw attention to some of them at the present stage. Not that I desire to oppose the Bill. My sole object at this moment is to direct attention to clauses which are deserving of special consideration. Some of them go further than I think they ought to go in an Interpretation Act. This is intended, as I understand, to be an Interpretation Bill, and not a legislating Bill. It is not a measure altering the law or introducing new constitutional provisions, but is merely for the purpose of interpreting words and expressions. The Attorney - General has very properly drawn attention to clause 2, and lias referred to the expression, “ shall bind the Crown.” I do not wish to say at this stage that I am opposed to that provision, but it appears to me to be open to discussion. On turning over the pages of the Bill, it will be noticed that there is not a single clause in it that affects the Crown. There is not a single expression that’ seems to be intended to regulate the powers of the Crown, or in any way to affect the Royal prerogatives. Consequently, I do not see that there is anything in the Bill on which this phrase “shall bind the Crown” can operate. If there is nothing in the Bill upon which the mandate “shall bind the Crown “ will operate, I do not see the use of having it in the measure at all. There is no doubt that in certain Acts of Parliament there are provisions which are intended to bind the Crown. It is a well-recognised principle in the construction of Statutes, that in order to bind the Crown, the Crown must be expressly and clearly mentioned in terms. If, in the course of our legislation in this Parliament, it becomes necessary to introduce any provision to bind the Crown or affect the Royal prerogatives,, it will then be incumbent upon us to use expressions clear and unqualified, by which the Crown will be bound. The Crown will not be bound in an indirect way in an interpretation clause. If the Crown is intended to be bound, it must be bound in an Act which is passed affecting its rights, powers, privileges, and prerogatives. Consequently, without’ wishing to go so far at the present stage as to, say that this clause is absolutely unnecessary, I would suggest that the Attorney-General consider the propriety of omitting it, because it may lead to complications and difficulties hereafter. It is difficult to perceive, at the present stage, how the clause is to be operative, and if it is not operative, I apprehend it is unnecessary to introduce a provision which is not really required, and the effect of which hereafter we do not know. I would like next to draw attention to clauses 17 and IS, which seem to contemplate the differences between what are known in parliamentary language as public Acts and private Acts. Clause 18 conveys the impression that the Parliament of the Commonwealth has constitutional power to pass what are known as private Acts of Parliament. With reference even tothat, I would not like to say the Parliament of the Commonwealth has not the power to pass private Acts, but I draw attention to it as a moot point, and a point which may be raised hereafter, in the construction of the Constitution itself - whether the Federal Parliament has power to pass a private Act of Parliament. The point was disputed for a considerable time in Canada, and I am not quite certain whether it is settled now that the Dominion Parliament can pass private Acts. The power has been challenged, and it lias been said that the Parliament of the Dominion can pass only general laws for the peace, order, and good government of Canada. So that, hereafter, the point may be raised as to whether the Federal Parliament has the power to do more than pass such general laws, and the Contention may exclude the right to grant private Acts to interested persons. As I have said, I do not wish to pronounce an ultimate opinion on the point, on which I have an open mind. I do not wish to suggest any contention to limit the powers of
Parliament, but when the time arrives the question will have to be raised in a constitutional manner. Meanwhile, it appears that in this Interpretation Bill - a Bill not intended to raise constitutional questions, and a Bill that certainly cannot settle constitutional questions - it is assumed that the Federal Parliament has power to pass what are known as private Acts of Parliament. Even if this clause be passed, it would not in any way enlarge, nor in any way restrict, the constitutional powers of Parliament. It may certainly show what are the views of the members of the present Parliament, but it could not affect the constitutionality or otherwise of private Bills submitted hereafter and passed. I next draw attention to clause 2S, dealing with the interpretation of judicial expressions. Under sub-clause (b) of that clause it is provided, “ the Federal Court shall mean the High Court.” That also involves a very important question of constitutional construction. The point may be hereafter raised that the term “ Federal Court “ is applicable only to courts other than the High Court under the construction of the Constitution. I do not say which view is right, but merely submit the point for consideration as to whether the term “ Federal Court “ is applicable under the Constitution to the High Court, or whether the latter is not to be known as the High Court, and the term “ Federal Court “ be applicable to the inferior Federal Courts, .it is a point which, I think, cannot be settled by this Bill, in which there certainly ought not to be introduced matters of a debatable character. Subsection (c) of the same clause, defining “ federal jurisdiction,” involves merely matters of detail, but 1 draw the attention of the Attorney-General to the question whether it is sufficiently comprehensive. Sub-clause (e) reads : - “Federal jurisdiction” shall mean jurisdiction as to matters in respect whereof the High Court has or is capable of being invested with original jurisdiction.
Surely its appellate jurisdiction ought to bo the federal jurisdiction, and the definition ought to bc sufficiently comprehensive to include not only the ordinary jurisdiction, but the federal jurisdiction.
– The clause might operate as legislation.
– lt might operate as legislation, and not interpretation. Another instance of legislation, instead of interpretation, is to be found in clause 35, sub-clause (4), which is drawn from the New South
Wales Act No. 30, 1897, and provides that where an Act confers on a person power to make appointments to an office that Act also includes power to move or suspend. That also seems to involve legislation as well as interpretation. Clause 37 is clearly a very extensive grant of legislative power, and is not interpretation, because it gives power to the court, judges, justices, officers, commissioners, arbitrators, and other persons authorized by law to hear and determine any matter, to receive evidence, and examine witnesses on oath. That is clearly legislation. I do not object to the propriety of such legislation, but the question is whether it is in the right place, or whether it ought not to be in an Evidence Bill. For. instance, the question arises whether the clause would not grant power to the Elections and Qualifications Committee, appointed yesterday, to hear evidence on oath. It would be most desirable that a committee having authority to hear evidence and determine such matters should have the right to take evidence, on oath ; but the question is whether the Bill is the right place in which to provide for that. These are a few matters to which I merely desire to draw attention, in order that they may be taken into consideration. I do not say that these provisions ought to be struck, out of the Bill, but I think it my duty to draw to them the attention of the law officer in charge of the Bill.
– I hope the honorable member in charge of the Bill will follow the suggestion made by the honorable member for Wentworth, and rest satisfied with going into committee pro formd to-night. Speaking for myself, I have never seen the Bill until to-day, and the honorable member in charge of it will at once admit that it is one of the most important to be submitted to the House. It provides for the method of interpreting all future Acts which may be passed by this Parliament. It has been suggested by the Prime Minister that we should go into committee at present, and have any clause recommitted with regard to which any honorable member wishes to make a suggestion. But honorable members who have had experience in Parliament know that no honorable member likes to take on himself the. responsibility of asking to have a lot of clauses recommitted merely in order that he may make some suggestion for verbal amendment. That is really what is proposed now - that we should go through the Bill possibly in ‘ a hurried and incomplete way, and then seek to have various clauses recommitted for a second edition, so to speak, of consideration in committee. The suggestions made by the honorable member for Bendigo are very important, and I have privately pointed out to the Attorney-General that clause 15 is open to similar objections. The Bill has evidently been framed with the intention of providing a code by which Acts of Parliament may be interpreted ; but, in many cases, such as have been pointed out, and even in the case I now point out, there is a distinct attempt at fresh legislation which cannot come under the title. Honorable members, notwithstanding that the Government ‘ may have no other business to-day, should go into committee pro forma, and allow further time for consideration of the Bill. I am quite sure no time would be lost by taking this course, because if every honorable member who has failed to receive a copy of the measure, is to have liberty by-and-by, without objection on the part of the Government, to have any clause he may think fit recommitted for further discussion, the House will not gain in point of time, lt would be a very great pity to embark now on a detailed consideration of all the clauses in the Bill, if afterwards the honorable member in charge finding that certain objections were vital, should have to take a course by which the Bill would be dealt with again from its initiation. This is the first real measure of importance that has come, before the House. I know the Attorney-General wishes to accommodate honorable members on both sides, and, inasmuch as it appears that copies of the Bill have not been delivered to some honorable members on the Ministerial side, the very least that can be asked for on behalf of the Opposition is that time should be given for the consideration -of the measure before we go into committee.
– I should be very sorry to prevent any honorable member having full time to consider this measure. But I would like to point out that a great deal of benefit may arise from discussing this measure in committee. If the suggestion of the Prime Minister be acceded to, there will be no difficulty in fully dealing with any points on which an honorable member may have any doubt, and I understand the Prime Minister means to allow every facility for discussion. It is very important we should get this or some such measure agreed to as quickly as possible, because we are going to use the very words which are here interpreted in the sense in which they are interpreted.
– There is all the more occasion for care.
– I am merely pointing out a course which I hope will be followed. The observations of the honorable member for South Sydney are such as occur to every man who has to do with Acts of Parliament. It is undesirable to have on the statute-book Acts with a number of consecutive amendments ; but, if the honorable member had thought for a time, he would have seen the difficulty of carrying out the suggestion he made, inasmuch as every time an amendment was proposed, the whole of the old law would have to be submitted to the Legislature. It would be impossible to get useful amendments through in reasonable time, and very awkward questions would often have to be discussed. This process would take up considerable time, and prevent desirable measures being passed. At the same time I hope we shall so draft our measures that there will be no need for these amendments. To deal with the Bill before us more particularly, I would draw attention to the fact that some provisions of the English Statute are omitted in this measure. There is no provision here to make Penal Acts applicable to bodies corporate in the terms found in the second section of the English Interpretation Act. Then inasmuch as the Bill goes to the extent of saying that the headings of divisions and clauses shall be considered part of a measure, I would suggest that it would be desirable to treat the schedule in the same way, so as to prevent any question if the point arose as to whether schedules were intended to be included in an Act. The provision to which the honorable member for Parkes objected appears to be part of the English Act on which the Bill is based, and it may be considered advisable to follow a precedent set already in English legislation. There are several other points which it would be more fitting to discuss in committee. The term “ instrument “ is used in several parts of the Bill with an addendum. In clause 4, after the word “ instrument,” are the words “ including any rules, regulations, or bylaws,” and the same is the case in clauses 34 and 35. But there is not this addendum in clause 3, sub-clause (2), after the word “instrument.” If the addendum be necessary in the one case, it should be necessary in the other. There is a difficulty about the word “ instrument.” In the English Act there is a very much fuller list of instruments, including Orders in Council and proclamations. Whether we should be content to trust the word “ instrument” with the addendum, or whether we should allow that word to stand alone without any addendum throughout the Bill, is a point that demands consideration. To my mind, it is undesirable to use a word in a general sense, and then limit it afterwards by adding explanatory words. There is one provision contained in some statutes which it may be desirable to consider, lt comes in in connexion with this Bill, if it comes in at all, under clause 6, which deals with evidence of date of assent or proclamation. In some Acts of Interpretation it has been found desirable to say that the copy of an Act purporting to be printed by the Government Printer shall be accepted as evidence of the Act without further proof. I throw out the suggestion for consideration, and merely mention that it has already been included in legislation. The point raised by the honorable member on my left has reference to clause 8 of the Bill. I am not quite clear whether the AttorneyGeneral answered him or whether he is giving the matter consideration. The point is whether in the case of an Act of the Commonwealth, either directly or by implication, rendering inoperative a State Act, it ought to be included in the terms of this clause. It may be desirable to make the clause apply to a case of that kind.
– If the United States precedents hold, we should not need this section to secure the effect which the honorable member desires.
Mi-: PIESSE. - Then in sub-clause (c) of clause 8, I wish to ask whether the words “ tax or rate” should not be inserted ? I desire to know whether the term “ tax or rate” would be included under the term “ liability “ ; if not, should , it not be so included % In clause 25 of the Bill there is a rather significant addition to the term “ land.” The section sets out that - “Lund” shall include messuages, tenements, and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.
Is that intended 1 Is a life estate or a weekly tenancy to be equally included ? I submit that these words require consideration, and that perhaps the word “and” lias crept in inadvertently.
– It is word for word the same as the New South Wales section.
– I only put it whether it is a proper interpretation to place upon the word “land.” I find that the 35th section of the English Act contains these words : -
In any Act passed after the commencement of this Act, a description or citation of a portion of another Act shall, unless the contrary intention appears, be construed as including the word, section, or other part mentioned or referred to as forming the beginning, and as forming the end of the portion comprised in the description or citation.
That is in the English” Act, and it maybe desirable to include the provision here, because, as honorable members know, the judges are very often prone to follow English cases, and there might be some case turning upon such a provision. I have no further comments to make, but I hope that a little discussion will help us to a fuller consideration of the measure. It is better than postponing consideration of it to a future day. I support the second reading of the Bill.
– I have always objected to Bills being passed through committee pro forma, because I know there is a very, great difficulty in getting them reconsidered on the recommittal stage. That has been my experience always, and I have therefore set my face against the practice. If the Bill does go through, I wish to make it perfectly clear that I cannot regard it as any precedent. This is the first real working day of the Federal Parliament, and I should be sorry if the precedent were established of passing a -Bill through committee pro forma, owing to the necessities of the Ministry, because when we wished to get it recommitted we should have to lash up members ; and if the Government opposed us we could not get the recommittal. Possession is more than nine points of the law in this case. The Bill is hypertechnical, but I will mention one or two clauses about which I have some doubt. Regarding clause 2, I see the object of binding the Crown, but I do not think it is necessary here, and it may do some harm. The particular Act itself should be that in which the reference is made. The Crown will be bound by the definitions in the principal Act, but it might not be bound by the substance of that particular Act. Honorable members will see the distinction. All that this Bill does is to say that the words used in the particular Act will bear the interpretation given to them by this Act. But we will have further, for the sake of binding the Crown to the principal Act, to declare that that pariticulor Act binds the Crown, otherwise it will be ultra vires in one part, and good in the other part, which would be an absurdity. T suggest, therefore, that the words “ and shall bind the Crown” should not be put into the Bill. I have some doubt as to whether the Crown is not bound under the Constitution without mentioning it, and if weinsert in a particular clause that the Crown is bound, we are cutting down so far as the power of Parliament is concerned, the interpretation of the Constitution - we are really amplifying the prerogative as against the popular rights under the Constitution. Under the Constitution, and under the recognition of the Constitution in this Bill, “ Parliament “ means the Crown, as well as the two Houses. It is quite distinct from the English Act. That Act says “ with the advice of the Crown,” and to some extent the same thing applies in some of the States, but in our case, the Crown is an operative partner in all legislation.
Mr.Deakin. - The honorable member refers to the preamble?
– We really have recognised that in the preamble, because it states there that it is enacted by the King’s Most Excellent Majesty and the Senate and the House of Representatives of the Commonwealth, thus making the Crown really a part of the Legislature. I would therefore suggest the striking out of these words; first, as being unnecessary, and secondly as possibly operating for evil. Clause 12 has been mentioned for one purpose by the honorable member for Bendigo, and for another purpose I may refer to it. Whenever an Act has expired and a Bill has been introduced into Parliament to continue that Act, the new Act operates from the date of the expiration of the old Act. But let me put a case to honorable members. Let us suppose that thenew Act does not come into force for twoyears. That is possible under the dead-lock provisions. In the meantime the States may have had to legislate on the very point involved. What then will be the effect of this section ? Will it not be ultra vires, and, by consequence, the legislation enacted under it ? I point this out for the consideration of the Attorney-General. Then I wish to say a word or two about the definition contained in clause 19, having reference to the Sovereign. We are dealing with the Sovereign as a corporation and not as an individual; and therefore there is no necessity to define that the word Sovereign includes the successors. If there is such a necessity it is provided for in the Constitution, which declares that “the Queen” is to include her successors. We cannot give a construction to the Constitution other than its own letter bears. We cannot vary the grammatical construction of the Constitution itself by any particular Act, and we are merely passing confusing legislation if we attempt to do so.
– In the Constitution the. definition is for the purpose of construing the Constitution. This definition is for the purpose of construing Acts passed by Parliament.
– What I wish to point out is that this is an Act derivative from the Constitution. We cannot give a different interpretation to words in legislation from that which the same words bear in the Constitution itself. That is the point I am putting. . Clause28, sub-clause (e), is another case in which we are absolutely bound by the text of the Constitution itself as regards the words “federal jurisdiction.” We cannot possibly interfere with the grammatical sense of the words “ federal jurisdiction.”
– That is the same point again.
– Exactly. You may by the insertion of these words carry us further from our jurisdiction than we wish to go. Moreover, it would be legislation which would be improper in such an Act. We may limit the jurisdiction of some courts, we may interfere with the appellate jurisdiction which is not mentioned here, although it is doubtful under the Constitution whether that appellate jurisdiction is not concurrent in the local courts.
– But there is appellate jurisdiction in the federal courts.
– Precisely. The term federal jurisdiction under the Constitution covers both the original and the appellate jurisdiction; but in this Bill there is a limitation to the original jurisdiction. The State courts can be invested with appellate jurisdiction, or it may be that they already have that jurisdiction, irrespective of any Act passed by the Federal Parliament. However, I would ask honorable members not to insert these words. The term “federal jurisdiction” must bear the construction given to it by the Constitution itself. There are some minor matters of detail to which I will refer in committee.
Question resolved in the affirmative.
Bill read a second time.
Clause . 1 (Short title).
– In spite of some very sound reasons which honorable members have given for asking that the consideration of the Bill in committee shall not be proceeded with at the present time, I venture to repeat the plea which has already been urged, that under the exceptional circumstances in which we are situated it is desirable to have such a discussion as time will permit upon the many important points which are raised in the Bill, because the promise of a recommittal is not in this case the form which it sometimes is, but may be a necessity of the situation. I may desire, after having heard more from my honorable friends, to recommit the Bill in order to amend some portions of it ; but its progress will be facilitated if I have the advantage of hearing further argument on certain issues which honorable members have raised. I am only too happy to express my obligation to honorable members who have already spoken for the light which has been thrown upon portions of the measure, and although I do not yet retreat from the position which I have taken up, I shall have no hesitation in doing so upon any point upon which honorable members convince me - as they may do - that a better expression than that which is used in the Bill is possible. No sense of personal or Ministerial responsibility will be offended by the amendment of this measure. Every improvement that can be made in it will be of advantage to us all, but to no section of the House more than to the Ministry, and of the members of the Ministry to no one more than to myself. Consequently, I appreciate, and am grateful to honorable members for, the criticism with which we have been favoured, and hope to present to them the reasons which induced me to adopt the expressions which appear in the Bill. After we have heard the criticisms which honorable members may bestow upon the measure in committee, I shall be only too happy to allow its recommittal, and possibly I shall be moved to do so for my own purposes. Under the circumstances, I would ask honorable members not to press their objection to going on with the measure now. Honorable members will remember that, if the Bill has to go twice through committee, there is no Bill whose provisions will better repay twice thrashing out, and no Bill to which close criticism can better be given. The time devoted to this measure will by no means be wasted. It is probable that we must have a double criticism in any case; but as many honorable members who have not received their Bills - the honorable member for Parkes for example - are familiar with many of its provisions gathered from other measures, I think we might proceed with its consideration at once, and make the best progress we can.
– Would it not be better, as the Government are determined to go on with this measure, if, instead of being confronted with the promise to recommit the whole Bill, when we meet with any clause upon which there is likely to be very great discussion, and in regard to which honorable members assert that they want a little more time for consideration, to postpone that clause? Does the AttorneyGeneral want to finish the committee stage to-night?
– Then 1 think that the course which I suggest, and which is the usual practice, should be adopted, especially as many of us have not yet had an opportunity to peruse the Bill.
– I shall have no objection to the adoption of the course which the honorable member suggests. I shall be only too happy, after a clause has been criticised, to postpone its consideration, if there is any serious doubt in the minds of honorable members as to the advisability of passing it at the present time.
– Let the clauses be read from the Chair.
– I shall be happy to have any clause which the honorable member desires to hear read from the Chair.
– Do I understand that it is sought to pass this measure straight away ?
Ma. Deakin. - No. It is not even our intention to take it finally through committee to-day.
– There are as it appears to me so many provisions in it which will in the future give work to lawyers that, if we pass it hurriedly, the first charge which will be hurled against this Ministry will be that, being members of the legal profession, they tried to create work for that profession. Let honorable members look at the provision in clause 6.
– We are not now dealing with clause 6. Clause 1 is before the Committee.
– Clause 6 provides that-
The date appearing on the copy of an Act printed by the Government Printer shall be evidence that such date was the date on which the Governor-General assented thereto.
The first objection which would be taken in the lower court would be : how are you going to prove that.
– The honorable member must confine his remarks to the clause before the committee.
– Honorable members have not had an opportunity to consider the provisions of the Bill, and this attempt to rush it through committee should not be allowed to succeed. This is one of the evils of having a Ministry of lawyers.
Clause agreed to.
Clause 2. This Act shall apply to all Acts of the Parliament, including this Act, and shall bind the Crown.
– This is a clause which provides the first ground for debate, because of the provision - and shall bind the Crown.
During the second-reading debate, attention was drawn to those words, and I suggest that the Attorney-General should yield to the arguments then advanced, and agree to their omission. Nothing can be gained by retaining them, and it would save a great deal of time if the honorable member would at once agree to their omission. I shall move -
That the words, “and shall bind the Crown,” be omitted.
– I would ask the honorable member not to move that amendment yet, because, if it is moved, we cannot postpone the clause, and I shall be prepared to agree to itspostponement, in order that we may have time for consideration, after I have had the advantage of honorable members’ further criticism in regard to it. If any other honorable member desires to address himself to this question, I shall be glad if he will do so now, and then I shall be ready to postpone the clause. In referring to the clause during my second reading speech, I mentioned that the words to which the honorable member takes exception occur in the English Bankruptcy Act, and that an exactly similar provision occurs in Section 30 of the English Acts Interpretation Act of 1889, which says -
In this Act, and in every other Act, whether passed before or after the commencement of this Act, references to the Sovereign reigning at the time of the passing of the Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being, and this Act shall be binding on the Crown.
The English Acts Interpretation Act is the measure from which we have drawn a great number of the provisions in the Bill, and objection can scarcely be taken to the inclusion in the Bill of the words to which the honorable member refers, as they have been considered necessary in connexion with the definition of expressions in the English Act. I should like the honorable member and those who are inclined to agree with him to consider the matter further before moving the omission of these words. Having said so much, I do not feel myself precluded from admitting that the point taken by the honorable member for South Australia, Mr. Glynn, with respect to a possible implied limitation, is one worthy of consideration. I quite recognise that, even though the phrase occurs in the English Acts Interpretation Act, there may be reasons, having regard to our peculiar position, why the same phrase could not be used with precisely the same effect here. However, I should like to have more time to consider the point ; and that is one of the reasons why I am prepared to postpone the clause.
– I think that the Attorney-General has rather mistaken the objection taken by the honorable member for South Australia, Mr. Glynn. He objects not so much to the use of the words “and shall bind the Crown,” as to the particular position which they occupy in this clause, and the particular meaning which will therefore attach to them. Although the clause is a very short one, it really contains two predicates. It says that -
This Act shall apply to all Acts of the Parlia ment;
And it also says -
This Act shall bind the Crown.
The honorablemember for South Australia has pointed out that it will not be sufficient in dealing with future Acts to say that this Act shall bind the Crown, because it will have to be expressly provided in those Acts that their provisions shall bind the Crown ; and when provision is made in a subsequent Act that that Act shall bind the Crown, the object which is aimed at by the AttorneyGeneral is attained by the firstpredicate which I have read. This is really a clause to provide in a comprehensive way that whatever provisions are contained in this measure shall apply to all future Acts of the Commonwealth Parliament.
– Yes ; whether they bind the Crown or not.
– When measures binding the Crown come before this House, they will no doubt bind the Crown by their express wording, and therefore the words “and shall bind the Crown” are unnecessary here. That is the point which was taken by the honorable member for South Australia, and it is a point which I take myself. If the Attorney-General considers the point a good one, it should induce him to omit the words
And shall bind the Crown.
Not because of the phrase itself - because I think the Attorney-General fully justified his use of it by his reference to the English Bankruptcy Act - but because the words are unnecessary here.
– The remarks of the honorable member for Parkes cover the objection which I proposed to take. It appears to me that the desire of the honorable member for South Australia, Mr. Glynn, is that it may not be inferred from the use of these words that we do not think that our Constitution at the present time enables us to bind the Crown, and that he believes that their use hero may lead to the inference that we think that there is that limitation to our powers. My suggestion is that the clause should be made to read -
This Act and all Acts of the Parliament, unless the contrary intention appear, shall bind the Crown.
I think that that would express the powers which we have under the Constitution, and would not leave it to be inferred that we think that the Constitution does not give us power to bind the Crown.
Mr. HIGGINS (Northern Melbourne.)As the Attorney-General has been good enough to suggest that he would like to hear what is to be said for and against this clause, I venture to say a few words. Having regard to the nature of the Bill, as it is a mere Acts Interpretation measure, I cannot see that any harm can be done by leaving in the words, “ and shall bind the Crown.” There is no danger of any particular Act of Parliament being held to affect the Crown’s prerogatives and rights by the mere fact that in an Interpretation Act it is said that certain words shall, unless the contrary appear from the context, be held to have a certain meaning. The effect of the Bill is simply that instead of using a long expression you may use a short expression. I recollect some lines in Rejected Addresses : -
John Richard William Alexander Dwyer
Was footman to J ustinian Stubbs, Esquire ;
But when John Dwyer listed in the Blues,
Emanuel Jenkins polish’d Stubbs’s shoes.
Just in the same way this Bill says in effect that instead of saying “John Richard William Alexander Dwyer,” we shall simply say “John Dwyer.” Surely there cannot be very much objection to a short expression being used instead of a longer expression. I understand that the honorable member for South Australia, Mr. Glynn, says that the Bill, to some extent, treads on the prerogatives of the Crown. This is not a Bill that affects any rights whatever, but simply assists in interpreting Acts of Parliament.
– The honorable member referred to did not say that.
– I did not hear the honor able member, but if it be as I understood, that the honorable member thinks that all Acts bind the Crown, by the Constitution, these words can do no harm. I recollect that when the Commonwealth Act was under consideration in England, those words. “ bind the Crown “ were deliberately omitted. I thought they were left out because the Imperial authorities did not like them, and considered them to be an interference with the Royal prerogatives. But looking at the nature of this Bill, and considering that it is a mere Interpretation Bill, I say that you may express in a few words what otherwise you would have to express in a dozen, and to that there should be noobjection. If the words have the same meaning as applied to the Crown, as if applied to a subject, there is no objection to that. I am sure that the Crown has no wish to assume that words mean one thing from the point of view of the Crown rights, and another thing from the point of view of subjects rights. But if the honorable member feels strongly upon the clause, the proposal of the Attorney-General should be accepted, and it should be postponed.
– I have no objection to that.
– In order to enable the clause to be postponed, I will withdraw my amendment for the present.
Amendment, by leave, withdrawn.
Clauses 3 and 4 agreed to.
Clause 5 -
– I have not had time to study this clause very closely, but looking at it hurriedly it. seems to me to be possible for a contradiction to exist between sub-clause (2) of clause 5 and sub-clause (2) of clause 3 which has just been passed. Clause 3, sub-clause (2), says that : -
Where an Act or any instrument made granted or issued under a power conferredby an Act is expressed to come into operation on a particular day, it shall come into operation immediately on the expiration of the last preceding day.
That is a general provision. Then subclause (2) of the clause now before the Chair, which is a special provision, seems to be in contradiction, because it says : -
Every Act reserved for the signification of the King’s pleasure thereon shall come into operation on the day on which His Majesty’s assent is proclaimed in the Gazette by the GovernorGeneral.
– That is right; it does not make any difference.
– I think the general provision really requires an explanation.
Clause agreed to.
Clause 6 -
The date appearing on the copy of an Act printed by the Government Printer, and purporting to be the date on which the Governor-General assented thereto, or made known the King’s assent, shall be evidence that such date was the date on which the Governor-General so assented or made known the King’s assent, and shall be judicially noticed.
– I wish to draw attention to the point I raised on the second reading of this Bill, that there is no way in which a copy of an Act of Parliament may be proved. It might be well to insert some such words as the following : -
A copy of every Act printed, or purporting to be printed, by authority of the Government, may be put in evidence, but it shall not be necessary to prove that it was printed by such authority.
I do not know whether it is necessary to move an amendment upon the clause.
– In regard to that particular point, the Court itself is able to determine as to the validity or otherwise of the copies of Acts placed before it. But I am free to admit that there are reasons for taking the view which is entertained by the honorable member. The omission was made deliberately in the preparation of this Bill, but with some hesitation. If the opinion of learned members likethe honorable member for Tasmania, Mr. Piesse, isthat such words might beproperly included, I shall be very happy to reconsider the question of their inclusion, and will probably deal with the matter at a later stage.
– I see great dangerin passing this clause hurriedly. Unless the Attorney-General can point to some provision whereby, if an Act purports to be printed by the Government Printer, it shall be taken as having been so printed, it might be very well held that the burden of proving that the Act was printed by the Government Printer lay upon the person seeking to avail himself of it.
– I am making a note of the point, with a view to introducing some such provision.
– It seems to me to be very necessary for great care to be taken by honorable members with regard to clauses of this kind. A Government, five of the members of which are lawyers, should know better than to hurry such provisions. There are some clauses in this Bill which should be omitted altogether, and others that cannot be allowed to pass as they stand. If I come to such a conclusion after a hasty examination of the Bill, what might honorable members think if they had an opportunity of carefully examining its provisions ? We are here to legislate, and not to rush Bills through. This Bill is simply creating work for the lawyers.
– The honorable member would be the first person to be pleased at that.
– I amnot pleased. I was so long a layman that probably I have not fallen altogether into the ways of the lawyers yet. Are we to have this Bill put through without any discussion except that which may arise on each clause ?
– It is my misfortune as well as that of my honorable and learned friend, the member for Werriwa, that he was not present when I pointed out the peculiar nature of this Bill, and that it was one in regard to which the assistance of the House was invited. On many of the clauses, very reasonable differences of opinion may be entertained as to whether we are going too far or not far enough. The Bill was circulated six days ago, but unfortunately some honorable members did not get their copies until this afternoon. We welcome the criticism of honorable members, and if any clause is seriously challenged it is to be postponed. There is no attempt to take an advantage of any one, except so far as advantage can be taken of the advice and knowledge of honorable members on the matters involved.
– DoI understand that even though a clause is not challenged now, it can he recommitted afterwards, as well as those clauses which are challenged?
– If the recommittal is asked for, certainly. That is the understanding.
– I understand that the suggestion I have made will be embodied in the Bill on a future occasion.
– Yes, probably.
– Then I need not proceed with any amendment.
– I should like to make a further suggestion to the Attorney-General. I do not think the clause is necessary. I believe there has been a decision that the courts will take judicial notice of the Acts as printed. I do not think this clause embraces everything. It does not cover an Act coming into force under a proclamation. The Royal assent may be given to an Act on one day, and there may be another date upon which it will come into force. The latter date may be fixed by a proclamation. The clause should cover everything. There is at present a leakage in that respect.
Clause agreed to.
Clause 7 -
The repeal of an enactment by which a previous enactment was repealed shall not have the effect of reviving such last-mentioned enactment without express words.
– I believe the Attorney-General is aware of the objection raised with regard to this clause in regard to the word “ enactment,” and the desirableness of reference to State Acts which are rendered inoperative by the passing of Commonwealth legislation.
– I have a note of the point.
– Then I need not trespass any further upon the committee.
– It is a very important point.
Clause agreed to.
Clauses 8 and 9 agreed to.
Clause 10 -
Where an Act repeals and re-enacts with or without modification any provisions of a former Act, references in any other Act (whether such other Act was passed before or after the repealing Act) to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted.
– In this clause there is rather an unfortunate way of putting the point. I think it might be simplified. The clause says -
Where an Act repeals or re-enacts . . . any provisions of a former Act, references in any other Act whether such Act was passed, and so forth. I suggest that the clause would read better by the substitution of the words, “ whether it was passed.” Or perhaps the words “ whether passed before or after the repealing Act “ would be better, leaving out the words “such other Act was.”
– Would it not be better in the case of an amendment generally acceptable to make it now?
– I have no objection, although I was going to make a number of other amendments later. I move -
That the words “such other Act was” (lines 3 and 4) be omitted.
– Is the Attorney-General satisfied with that?
– Will the word “passed “ have reference to “Act,” or to “references”?
Amendment agreed to. Clause as amended agreed to.
Clause 11 -
The expiration of an enactment shall not affect any civil proceeding previously commenced under such enactment, but every such proceeding may be continued and everything in relation thereto be done in all respects as if the enactment continued in force.
– It may be a matter of detail, but it would be of great assistance to honorable members when an amending Bill is introduced, to have the proposed amendments and the original clauses before them, printed in different type. My experience in another Legislature is thatwhen an amending Bill is brought forward, one cannot exactly see the connexion without reference to Acts.
– It is a matter entirely within the discretion of the House, which can always require that to be done.
– In the clause we read -
The expiration of an enactment shall not affect any civil proceedings previously commenced under such enactment, but in clause 8, sub-clause (e) it is provided - “ Where an Act repeals in the whole or in part a former enactment, then unless the contrary intention appears, the repeal shall not affect any investigation, legal proceedings, or remedy in respect of any such right, privileges, obligation, liability, penalty, forfeiture, or punishment as aforesaid.”
That, of course, leaves the proceedings open to be carried on at any time. The Statute of Limitations would run six years in certain cases.
– One is a repeal, and the other is the expiration of temporary law.
– It is a matter which evidently requires thought and attention.
– I have made a note of the point, and shall be pleased to give it consideration. Honorable members will notice that one case is that of an Act repealing the whole or part of a former enactment, and the other is simply the expiration of an enactment j as, for instance, when an Act is passed for three years, or some fixed time. I see the honorable member’s point. The drafting might have been more artistic if there had been another sub-section ; but we have accepted clauses which are timehonoured and well known without endeavouring to transform or amalgamate them.
Clause agreed to.
Where an Act for continuing a temporary Act is passed after the expiration of the temporary Act, but the Bill on which the continuing Act is founded was introduced into the Parliament and was pending at the date of such expiration, the continuing Act shall unless the contrary intention appears be deemed so far as it continues the temporary Act to have come into operation from the date of such expiration.
– Will the Attorney-General take note of the point to which I drew attention in the second-reading debate 1 The clause declares that where an Act is passed for continuing a temporary Act the new legislation shall date from the date of the expiration of the old Act. Two years after or longer there might be a dead-lock, and in the meantime some State legislation might be passed dealing with the same matter. An Act passed under this provision might be ultra vires of the Constitution so far as it was meant to operate retrospectively, seeing that there might have been legislation in the meantime, and that rights might have been acquired under that legislation.- It would be better to strike the clause out altogether, and if it be desired that the new Act shall operate as from the date of the expired one, to declare that in the special legislation. Honorable members would then know exactly what they were doing, and the Minister introducing ‘the Bill would know whether it was necessary to make it date back, seeing that he would bc familiar with what had occurred, lt is possible that a Minister in charge of a Bill might forget the provision in this Bill. Is it not better to put the responsibility on the Minister in charge of the Bill, and on the Parliament that passes it, rather than put a provision into a measure which may be forgotten? In the meantime it is possible that legislation in the States may vary the whole circumstances, and that legislation may be overlooked.
– I would ask the Attorney-General not to press the clause. I can quite see that by inadvertence injustice might be done by leaving the clause as it stands, whereas if the Legislature be left to determine whether or not the measures shall be retrospective, there will be no chance of an inadvertent injustice.
– The clause is only introduced for greater abundance of caution. I ask honorable members to leave it in the Bill for consideration.
Clause agreed to.
Clause 13 agreed to.
Clause 14 -
– In this clause wehave gone into particularities in stating that the headings of the parts, divisions, and subdivisions into which any Act is divided shall be deemed part of the Act. Having done that, ought we not to state - and there is precedent for it - that the schedule of an Act shall be deemed part of an Act? I suggest the insertion of the words, “ Unless, otherwise expressly provided, each schedule to an Act shall be deemed to be part thereof.”-
– I have taken’ a note of the honorable member’s point. This is one of the matters which has been considered. It appeared to me indubitable that the schedule was always part of an Act.
– A schedule must be part of an Act, or the Constitution Act itself would not be operative.
– That is so. This is a question of how far we should go in declaring well-accepted principles of interpretation. I shall consider the point, but to provide that schedules shall be part of an Act, appears to be going rather far.
– I will leave the clause for the consideration of the Attorney-General.
Clause agreed to.
Clause 15 -
An Act may be altered, amended, or repealed in the same session of Parliament in which it was passed.
– Is it intended to strike out this clause 1
– I should like to know the reason for the honorable member’s question. The member for Parkes submitted that this was rather a legislative than an interpretative clause, but I find there is a similar clause in the Interpretation Acts of the mother country and the mother colony. It appears to have been included in several of the English and colonial Acts without question.
– I have no objection to the clause.
– I do not press the point.
Clause agreed to.
Clause 16 agreed to.
Clause 17 -
Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof.
– I take the opportunity of drawing attention once more to the point I raised on the second reading in connexion with clauses 17 and 18, which draw a distinction between public and private Acts of Parliament. The Bill as it stands assumes that the Federal Parliament may pass what is known as a private Act. If the Federal Parliament can do so, all very well, but if it cannot, this clause will not in any way affect the powers of the Parliament. “When a private Bill is brought . in, the right to introduce it may be -constitutionally challenged, and then reference will be made to this clause as a decision on the part of this Parliament, perhaps an imprudent decision, that there can be such legislation. As I said before, it is still a moot point in Canada whether there can be private Bill legislation under the powers to legislate for the peace, order, and good government of the Dominion.
– There is no doubt about it in the United States.
– I am not so sure about that.
– A great number of private Acts have been passed in the United States.
– But that is under the general power of legislation, and those are not private Bills in the strict sense of the term.
– The Constitution, in America is the supreme law.
– It would be just as well to take time to consider this point.
– I have taken a note of the honorable member’s point, and propose to examine it again.
– It is of no use to assume we have power. AVe should he absolutely certain of it.
– I am glad the honorable member for Bendigo referred to this point on the second reading. In our Victorian legislation we have no. private Acts in a technical sense ; and I do. not see that there is any gain in having any other than public Acts. In Victoria, we have what are called private Acts, “but . they are proved in the same way as are public . Acts, and are called private Acts for convenience, in order to show that they relate to some limited subject.
– Sometimes fees are paid for the privilege of passing those Acts.
– A Bill maybe introduced by private individuals, but once it is passed it always, in Victoria, becomes a public Act. In the other States, I believe, public and private Bills are distinguished, and although fees may be paid in Victoria for introducing a private Bill, once the measure is passed, I can state on good authority that it becomes a public Act. Clauses 17 and 18. appear to me to be very dangerous. Clause 18 says that nothing in a private Act “ shall affect the rights of any person other than the persons named in such Act, or persons claiming by, through, or under them.”’ If we read that literally, it means that a private Act will not be binding on any person, unless his name is actually inserted in such Act. Of course, the Attorney-General will understand that I do .not wish to be critical about the drafting of the Bill.
– That is the New South Wales provision.
– I see that, and I should very much like to understand how it has worked in New South Wales. It is only four years old there I find, so that that State has not had much experience of its operation. At all events, what I wish to put is this : If we call a private Act an Act which gives a syndicate or corporation power to lay down a tramway, and then, in some way or other, that tramway interferes with a householder’s ease by making a noise and emitting smoke, on the assumption that the householder is not mentioned in the Act, is the tramway company liable to an action ? The answer according to this Bill would be, that no provision in any private Act shall affect the rights of any person other than persons named in such Act.
– Obviously that is not the intention of the clause.
– Quite so, I only feel that these two clauses, as the honorable member for Bendigo has suggested, ought to be revised.
– I see the point as to clause 18, but what is the honorable and learned member’s objection to clause . 17?
– I do not think there is any advantage to be gained by having a distinction drawn between private Acts and public Acts.
– Clause 17 does not go so far as to make a distinction.
– Well, it assumes there will be public Acts and private Acts, and it raises the question whether there is to be a distinction. I should like consideration given to the question of whether we ought not to adopt the Victorian practice of treating all Acts, from whatever source they come, as public Acts.
– I would like to ask the Attorney-General if hehas considered whether clause18 has any efficacy at all. Is it intended to be a fetter on our future powers of legislation? Let us suppose that a private Act, without naming any person, affects certain rights, which will prevail, the Act passed by this Legislature or this section ?
– This section was adopted from the New South Wales Interpretation Act, and I confess that it suffers considerably from the criticism that has been passed upon it, but the preceding section comes from the English Interpretation Act.
– They have private Acts.
– Yes, they have private Acts, and if they have private Acts, it becomes an interesting question what there is in the Constitution ofVictoria which differentiates the practice as to private Acts from that of the mother country.
– The Constitution provides for one kind of Act.
– Evidently clause 18 is not likely to survive the criticism that has been passed upon it. I will take the objections raised upon clause 17 into consideration if honorable members will allow it to pass.
– I would point out that the difficulty could be overcome by striking out the words “unless the contrary intention appears.” Of course, in England, there is a very different provision. There a distinction in England arising from the county Palatine that does not arise here.
Clause agreed to.
Clause 18 negatived.
Clause 19 agreed to.
In any Act unless the contrary intention appears -
Commonwealth of Australia :
The Commonwealth of Australia Constituition Act:
– May I suggest to the Attorney-General that in sub-section
– That is the ordinary meaning of “ territory.”
– Yes, but here there are three meanings attached to the word. I think that the sub-section should be expanded so as to do away with all ambiguity.
– I had made a note of a similar objection to that which has been advanced. We certainly cannot bring in the territory in which the seat of Government is established ; there will be a special management of it ; and we shall need a special Act of Parliament. We cannot possibly have anything different from the geographical areas of the States, because they constitute the Federation. The Constitution Act defines the territory for general federal jurisdiction as the geographical area of the various States, and if the honorable member for Corio will follow the definition as far as possible, I think he will secure what he wants.
– Is it necessary to define “ Australia.”
– Of course the ideas conveyed by the word “territory” are well known and understood. In the abstract application, I take it that the sub-clause as it stands is accurate and could hardly be otherwise expressed. But, on the other hand, I admit that the word “ territory” has been used in special senses in the Constitution, and it may be advisable to put it beyond all question as to whether any one of those senses was excluded. I am indebted to my honorable and learned colleague, the Minister for Trade and Customs, for a suggestion which I will take time to consider, and which would make the clause read - “ Australia” shall mean the whole of the Commonwealth, and shall include all parts of the Common wealth.
The object being that the well-known word “Australia” should embrace the whole area under the jurisdiction of the Commonwealth at any particular time.
– Are the names of the States included in the Constitution? Should we not refer to them ?
– The Constitution has done that, and if it were necessary it might be done again. But then, of course, it provides for possible future extensions.
Clause agreed to.
Clause 21 -
In any Act, unless the contrary intention appears -
“The United. Kingdom”shall mean the United Kingdom of Great Britain and Ireland :
” British possession “ shall mean any part of the King’s dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and a local Legislature, all parts under thecentral Legislature shall for the purposes of this definition be deemed to be one British possession :
“The Imperial Parliament” shall mean the Parliament of the United Kingdom.
– I wish to raise a point in regard to the use of the word “ Imperial.” I would much rather that the word “ British “ were substituted for “ Imperial” in sub-section (c) of this clause.. The Imperial Parliament is able to legislate for the Empire, but it is not the Parliament that does legislate for the Empire.
– The word “British “is equally objectionable from the fact that it does not cover Ireland.
– Then, why put in these words at all? I am aware that ancient documents show that Ireland is included in the term “ British “ as little Ireland.
– But this is a British Parliament, too.
– Then I think “Imperial” might be struck out. I say this by way of a suggestion that might be noted. We have, under section 51, sub-section (37) of the Constitution, powers which, if given with the concurrence of all the States concerned, equal those which could be exercised by the Parliament of the United Kingdom. I would suggest that some other word be substituted for “ Imperial.”
– I will give it attention.
– I wish to inquire if sub-clause (c) is at all necessary, seeing that sub-clause (a) says - “ The United Kingdom “ shall mean the United
Kingdom of Great Britain and Ireland.
If in any future measure the term “ The Parliament of the United Kingdom “ should be used, it would mean by sub-clause (a) the Parliament of the United Kingdom of Great Britain and Ireland. It seems to me that sub-clause (c) is not necessary if sub-clause (a) is allowed to remain as it stands; and its omission would meet the objection of the honorable member for Corio.
– I will consider the point.
Clause agreed to.
Clause 22 -
Where in an Act any Minister is referred to, such reference shall, unless the contrary intention appears, be deemed to include any Minister for the time being acting for or on behalf of such Minister.
Mr. HIGGINS (Northern Melbourne).I want to direct the attention of the AttorneyGeneral to clauses 22 and 23, and to suggest that they might be comprised, and are comprised perhaps, in clause 35. Clause 35 is part of an English Act. Clauses 22 and 23 are from theVictorian and New South Wales Acts, and I think they achieve the same object as clause 35. If they do not we can easily, by a little change in clause 35, get about the same substance put into the one clause. Clause 22 shows that where in an Act any Minister is referred to, such reference includes any person for the time being acting for such Minister. Clause 23 says that where a person holding an office is referred to, what is meant is the person holding that office for the time being. In sub-clause (2) of clause 35 it is set out -
Where an Act confers a power or imposes a duty on the holder of an office as such, then, unless the contrary intention appears, the power may be exercised, and the duty shall be performed by the holder for the time being of the office.
I think that clause 23 meets sub-clause (2) of section 35. There is more doubt about clause 22, and it may be that that clause could be - if there is need of it - specially inserted in clause 35. I think it is important for the purposes of this Act to have all the matters dealing with the same subject in the same ambit.
Clause agreed to.
Chaises 23 and 24 agreed to.
Clause 25 -
In any Act, unless the contrary intention appears -
“Person” and “party” shall include a body politic or corporate as well as an individual :
“Land” shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein :
“Estate” shall include any estate or in terest charge right title claim demand lien or incumbrance at law or in equi ty :
“Financial year” shall mean, as respects any matters relating to the Consolidated Revenue Fund or moneys provided by the Parliament or to public taxes or finance, the twelve months ending the thirty-first day of December.
– I would direct the attention of honorable members to the interpretation which this clause places upon the word “land.” It sets out that- “Land” shall include messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.
Surely that cannot be intended ?
– I propose to look into the interpretation again, but it is taken verbatim from the New SouthWales Act.
– In paragraph (c) “ land “ is defined as including -
Messuages, tenements, and hereditaments . . . and whatever may be the estate . . . therein.
And “ estate “ is made to include any lien ; but I do not think that a lien should be included under the term “ land.”
Mr. PIESSE (Tasmania). - I do not think that the words -
And whatever may be the estate or interest therein are in the English Act.
-No; they are not.
Amendment (by Mr. Deakin) proposed -
That the words “ thirty-first day of December “ in paragraph (e) be omitted, with a view to insert in lieu thereof the words “ thirtieth day of June.”
– I suppose that the object of the amendment is to bring the arrangements of the Commonwealth with respect to the financial year in accord with the arrangements of the States. I have always disapproved of making the financial year terminate in June; but I know that that is the arrangement which is now in force in all the States.
Mr. PIESSE (Tasmania). - I would suggest to the Attorney-General that, after the word “ finance “ in paragraph (e), the words or as respects accounting or reporting to the Treasurer about public moneys be inserted. There may be Acts requiring accounts to be rendered, and some time should be fixed within which these accounts must be rendered.
– I think that it would be well to consider the suggestion. .
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 26 and 27, agreed to.
In any Act, unless the contrary intention appears -
“The High Court” shall mean the High Court of Australia :
“Federal Court” shall mean the High Court or any court created by the Parliament :
’ ’ Court exercising federal jurisdiction “ shall mean any court when exercising federal jurisdiction and shall include federal courts :
“Court of summary jurisdiction” shall mean any justice or justices of the peace or other magistrate of the Commonwealth, or part of the Commonwealth, or of a State or part of a State, sitting as a court for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or of a State or by virtue of his or their commission or commissions or any Imperial Act :
” Federal jurisdiction,” shall mean jurisdiction as to matters in respect whereof the High Court has or is capable of being invested with original jurisdiction.
– In this clause the words “ Imperial Act “ are used ; but there appears to be no definition of an “ Imperial. Act.”
– An “ Imperial Act “ is defined in paragraph 2 of clause 41.
– Paragraph (c) gives a definition of a “ court exercising federal jurisdiction,” and attention has been drawn to the limitation created by this definition, which confines the meaning of the term “ federal jurisdiction “ to the jurisdiction of the High Court in its original jurisdiction.
– To matters in respect of which the High Court has or is capable of being invested with jurisdiction.
– The High Court is capable of exercising federal jurisdiction in the exercise of its appellate jurisdiction, and the inferior courts which may be created under the Constitution may also exercise federal jurisdiction, but the definition in this clause restricts the term “ federal jurisdiction “ to the original jurisdiction of the High Court.
– I wish to impress upon the Attorney-General the advisability of striking out the definition to which the honorable member for Bendigo refers, because, in my opinion, it isuseless, and it may be dangerous. It cannot have any meaning. except that which the context of the judiciary sections of the Constitution Act give it. There cannot be any reference to federal jurisdiction, except to such federal jurisdiction as is meant by section 71 of the Constitution Act. Why then should we define a term which is already defined in the Constitution, and give it a limitation which may lead to confusion ?
– I will deal with the contention of the honorable member for South Australia first. I altogether differ from the opinion expressed by the honorable and learned member. The provisions of the Constitution Act are certainly beyond our power to amend, and we should not attempt to amend them ; but we are now passing a Bill, by virtue of the authority given to us under the Constitution Act, which, when it is passed, will be an Act of the Federal Parliament, and in it we can assign whatever meaning we like to any words we choose to employ, whether those words have or have not been used in the Constitution Act. Of course, as bearing upon the question of convenience and propriety, I recognise the force of the honorable member’s objection. In reply to the honorable member for Bendigo, I would admit that any jurisdiction which is capable of being exercised by any Federal Court or with which the Federal Parliament has power to invest any court is, in colloquial phraseology, federal jurisdiction; and the words in the Constitution may be taken to be used in that wide sense. But they may be also used for the purpose of classification. The widest words used in the Constitution - and, if my memory serves me, they are the words employed in the Constitution of the United States - are “ the judicial power of the Commonwealth.” Those words appear to me to embrace the jurisdiction of all the Federal Courts, and to sum up in the widest possible way all phases, degrees, directions, and developments of its judicial authority. Under that term you have an original jurisdiction of the High Court which you may confer upon such Federal Courts or State Courts as you please, and you have also an appellate jurisdiction. It is true that, as a matter of appropriate terminology, you would be perfectly entitled to refer to appellate jurisdiction and to all matters within the exclusive power of the Federal Courts as being within the federal jurisdiction, yet the idea that underlies our use of the term is that the judicial power of the Commonwealth may, for the purpose of convenience, be divided into two parts, one to be referred to as the appellate jurisdiction, and the other as the federal jurisdiction. The term federal jurisdiction may be then taken to refer to the original power conferred upon or which may be conferred upon the High Court or any other Federal Court. The expression does not apply to the jurisdiction of the High Court itself ; it is a limitation to the matters which the High Court has, or which may be referred to it by way of original jurisdiction. I do not present this terminology to honorable members as the best that could be obtained, but it is convenient.
– The definition does not limit the powers of the courts ; it simply applies a term.
– Yes ; it is quite open for an honorable member to contend. - and I am quite prepared to have the point raised - that the term is inappropriate, or unwise, or even inelegant; but the idea which presented itself to my mind when adopting this division was to take all the judicial powers of the Commonwealth and divide them into appellate and original jurisdictions, the original jurisdiction to be referred to as federal jurisdiction, and the other jurisdiction to bc referred to as the appellate jurisdiction.
– Would it not be wise to insert a definition of appellate jurisdiction ?
– As the honorable member for South Australia, Mr. Glynn, has pointed out, ‘the Constitution does that. Section 73 has as a side note, “Appellate jurisdiction of High Court.” The classification to which I refer seems to me natural ; but there may be another definition which would be better, and, if so, I shall be glad to hear it.
Mr. GLYNN (South Australia).- I think there is danger in passing this definition. There can be no doubt that if we want to invest the Supreme Court of a State with original jurisdiction, or with federal jurisdiction, you can do so.
– Is it federal jurisdiction until it is conferred by the Federal Parliament 1
– That is doubtful; but it may be held that the State Supreme Courts have . had concurrent federal jurisdiction from the very moment the Constitution was proclaimed. Otherwise they could not take cognizance of any matters which may arise between the proclamation of the Constitution and the creation of the High Court, which would be absurd - because, if that were so, we should be without any provision for determining the validity of any proceeding which takes Place under the Constitution. The AttorneyGeneral limits the application of the term federal jurisdiction to original jurisdiction, but that is not necessary. If he wants to invest the court with original jurisdiction, it would be better to say so. We can give our State Courts appellate jurisdiction. The greater part of the appellate jurisdiction of the United States of America is exercised by the Circuit Appeal Courts, and I hope that we shall invest the Supreme’ Courts of the States with original and appellate jurisdiction up te a certain extent, so that every suitor who wishes to appeal will not be dragged before the High Court of Australia. It has been decided in America that to vest the judicial power in the High Court does not mean that it cannot be exercised by another tribunal.
– That has never been done in America.
– It is discussed in a work by Curtis on the federal jurisdiction. An error may arise We may declare that a particular court is to be invested with federal jurisdiction. It may not be noticed, however, that we are conferring upon that court only an original jurisdiction. Why should you do that by means of a definition 1 What is saved by re-defining a word, which already has a definite meaning under the Constitution, in such a way as to limit its meaning 1 I would ask the Attorney-General not to insist upon the definition.
-“ Federal j Url,9diction:’ meaning “jurisdiction coming within the judicial power of the Commonwealth,” might meet the case. There is a great deal to be said for the contention of the honorable member for South Australia, Mr. Glynn. The definition might be made a little more clear.
– Will the Attorney-General consider the point 1 If not, I shall have to move an amendment.
– I certainly shall consider it.
Sir JOHN QUICK (Bendigo).- In pursuance of the arguments addressed to the committee by the honorable member for South Australia, Mr. Glynn, I. invite the attention of the Attorney-General to Section 78 of the Commonwealth Constitution, which says -
The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.
Will not this definition include that section ? Why should not the term “ federal jurisdiction,” if we are to have a definition of it, be so comprehensive as to include every possible exercise of federal power 1
– The Bill really cuts down what is already a very good provision.
– Under Section 78 of the Constitution Act the Court may exercise federal jurisdiction; and yet the exercise of that jurisdiction would not be within the meaning of “federal jurisdiction” under this definition. The definition confines tha jurisdiction to the exercise of original powers. When the High Court entertains an action against the Commonwealth, it will not according to this limited definition be acting within its federal jurisdiction.
Clause agreed to.
Clauses 29 to 33 agreed to.
Clause 34 -
Where an Act confers power to make, grant, or issue any instrument (including rules, regulations, or by-laws) expressions used in any such instrument shall, unless the contrary intention appears, have the same meanings as in the Act conferring the power.
– I wish to draw attention to a comparison between this clause and the terms of the English statute. The English statute includes a great many more words than are here used, and I do not know whether it would not be better to trust to the word “ instrument,” which covers all.
– I have taken a note of the honorable member’s point.
Clause agreed to.
Clause 35 -
Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of removal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.
– I should like to point out that in sub-clause 3 of this clause there is raised a question about varying the instrument. It strikes me that the words “ including rules, regulations, and bylaws “ should also be inserted ; because the clause does not say that the instrument shall include rules, regulations, and by-laws.
– Another portion of the Bill does that.
– Yes ; clause 2 says : -
This Act shall apply to all Acts of the Parliament including this Act.
We have to interpret “ this Act “ itself, by itself.
– I think it would be well to strike out the words after “ including,” and then at the end of sub-clause 3 insert the words “rules, regulations, or by-laws.” I can see that unless those words are added, although we have power to make rules, regulations, and by-laws, the word “ instruments “ at the end of the sub-clause would not include them.
– I should think it would include them.
– This is really part of another question which should have been raised at the time clause 3 was under consideration. I should like the AttorneyGeneral to make a note of all these points as to instruments.
– I have marked the points.
– It would be well to interpret the term “ instrument “ once and for all as including what we intend by the term.
– I wish to draw attention to sub-clause4, which is taken from the New South Wales Act, section 30. I am quite sure we should not adopt this sub-clause, which practically enlarges the scope of every Act of Parliament. We may have an Act of Parliament making an appointment to an office; and if in addition such an Act is to confer the power to remove or suspend the officer appointed, the Act itself should say so. We should not make provision now, in this Bill, to enlarge the scope and effect of future legislation. Let the legislators of the future give the effect they contemplate to their own Acts of Parliament. This sub-clause is legislation, not interpretation, and that is an objection. The sub-clause practically invades the domain of legislation.
Clause agreed to.
Clause 36 -
Where in an Act a power is conferred on any officer or person by the word “ may,” such word shall mean that the power may be exercised or not at discretion, but where a power is conferred by the word “shall” such word shall mean that the power must be exercised.
– I should like the Attorney-General, when the Bill comes up for reconsideration, to pay close attention to this clause. It is a very risky clause indeed. The word “ may “ is frequently used in connexion with Courts of Justice, and has frequently been decided upon by the Privy Council, the House of Lords, and by our own courts. It means that when conditions of jurisdiction are satisfied, in a number of instances the parties have a right to the action of the Courts of Justice. If the word “may” is always to be interpreted to mean that the courts may or may not give those rights, leaving the matter to the discretion of the courts, then a very considerable change will be introduced into our law. I do not think it will be a change for the better. The case I have inmy mind is that of Julius and the Bishop of Oxford. There are other cases to a like effect, and they affect public rights to a great extent.
– I should like to see this clause retained in the Bill. The honorable and learned member for Indi speaks as a lawyer who is in the habit of appearing before the Supreme Court Judges. This measure, however, will come before people who do not know the meaning of legal terms so well as do the Judges. If it is understood at the time legislation is introduced that the word “ may” is only to mean an option and not a compulsion to the person, it is a wise provision, and ought to be retained.
Clause agreed to.
Clause 37 -
Any court, judge, justice of the peace, officer, commissioner, arbitrator, or other person authorized by law, or by consent of parties, to hear and determine any matter, shall have authority to receive evidence and examine witnesses and to administer an oath to all witnesses legally called before them respectively.
– I wish to know whether the Attorney-General is going to insist upon this clause ? I suggest that it should be postponed for further consideration. It is clearly legislation of a very important character. It has nothing to do with interpretation. Perhaps the honorable gentleman will withdraw the clause.
– I think the contention of the honorable member for Bendigo is quite arguable ; but this clause is in the Queensland Interpretation Act; I think also in that of New South Wales, as well as that of a third State. The clause is included for the purpose of shortening language as well as for its interpretation. In the Queensland Act, which is sure to have been carefully drafted, it has been in existence for some years. The clause is to cover the provisions in various Acts that certain bodies shall have power to administer the oath. Instead of saying that in every Act, we say it once for all in this measure. Iwas fortified in my disposition to put the clause in the Bill by the fact that I find it in several Interpretation Acts of the States.
Clause agreed to.
In the measurement of any distance for the purposes of any Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.
– I have to ask that this shall be one of the clauses to be reconsidered later on.
– I called special attention to this clause in my second-reading speech. The Commonwealth Act, being an English Act, required to be interpreted by the terms of the English Interpretation Act. This is the same definition as that given in the English Act. It is not the definition they have in New South Wales. Taking Australian circumstances into account, there is a great deal to be said for the New South Wales interpretation.
-If this clause applies, the court may be bound in such matters as the fixing of the expenses of witnesses and so on.
– That can be rectified, because there is always power to make regulations.
– In drafting the Bill it seemed to me, and seems still, that the fact that we are dealing with an English Act, as well as the many advantages that arise from following the English definition, make the adoption of that definition the better course to pursue.
Clause agreed to.
Clause 39 -
– I think the word “ such “ is wrongly used, and the clause should read in the last line, “ Sunday or a public or bank holiday.” Banks maybe closed on Easter Saturday and the Sunday following, and in order that things may be done on the Tuesday and not on the Easter Monday the clause should read as I have suggested.
– I think the use of the word “ such “ is to meet a difficulty we have in local Victorian public holidays and bank holidays. The word is intended to refer to the place where the thing is to be, or may be, done. It is necessary to remove the possibility of such a construction as that if there is a public holiday any where in the Commonwealth the clause operates everywhere. The holiday has to be pinned down to the particular holiday and particular spot.
– At first I was inclined to think with the honorable member for Corio, but on looking at the preceding words I have changed my opinion. If “ a” were used instead of “ such,” the clause might be held to refer to one of the particular class of holidays instead of covering the whole. I I think it would be better to retain the word “ such.”
Clause agreed to.
Clauses 40 to 42 agreed to.
Clause 43 -
In any Act, instrument, or document -
– I would like to draw the attention of the Attorney-General to a part of the English Statute not included in the Bill. Section 35 of the English Act Victoria 52 and 53, chapter 63, reads : -
A description or citation of a portion of another Act shall, unless the contrary intention appears, be construed as including the word section or other part mentioned,or referred to as forming the beginning and as forming the end of the portion comprised in the description or citation.
I would suggest that the words be added to the clause as “ sub-clause (d).”
– This is one of the points that has been considered, and it appeared to me so absolutely obvious, that I thought the provision might be omitted. It is a matter of opinion, like many others which arise when one is not legislating but setting out certain plain principles which have been expressed in most Interpretation Acts. I will consider the point. Although I should say there can be no possible question on the matter, we may as well include this, since we have gone so far.
Clause agreed to.
– I beg to move -
That a Select Committee be appointed to inquire into and report upon the desirableness and expediency of the Commonwealth coining silver and copper coins and adopting a decimal system of coinage ; such Committee to consist of Mr. P. M. Glynn, Mi-. W. H. Groom, Mr. S. Manger, Mr. P. W. Piesse, Sir John Quick, Mr. D. Thomson, and the Mover, with power to send for persons, papers, and records, and to sit on days on which the House does not meet; five to be the quorum.
I do not apprehend any opposition to this motion. From what I hear from honorable members, the proposal will be agreed to, and I do not propose to take up the time of the House in urging it. The object is principally to obtain information. I do not pretend to be in full possession of information that would guide the public of the country on the question ; but it is a matter undoubtedly of sufficient importance to warrant the appointment of a select committee in order to gather knowledge from the best possible sources, and place that knowledge in a report, so that on some future occasion the Commonwealth Parliament may be able to deal with the question. There is very large profit obtained from the coinage of silver. I have it from a competent authority that11.1 ozs. of silver, costing, at current rates, £1 5s. 4½d., will coin present currency to the amount of £3 6s. There is required for the purposes of the currency of the Commonwealth a sum of about £2,000,000 in silver coins. There would possibly be over £1,000,000 of that currency out, which would actually cost nothing and would be permanently in circulation, so that the Commonwealth might look for interest in perpetuity to the amount of £35,000 per annum. We would have to retire those silver coins from time to time as they wore out and replace them ; but as we would be constantly replacing them, there would be no actual loss other than the loss of wear and tear. It has been admitted by the State Governments that the profit is of sufficient importance to warrant their making a demand on the Imperial authorities for power to coin silver money. Thathas been done in at least two of the States ; and now we are federated the difficulties to a very- large extent will vanish. I believe the Home Government have always been willing to allow us to coin silver, provided we could arrange amongst ourselves in what way we would coin it, and in what way we would divide the profits. I do not think there will be any difficulty in obtaining the necessary authority - indeed, we have that authority - for coining our own silver. There will be no contention whatever over the considerable profit that is to be derived from the coinage of silver. What is to me the more important matter of adopting a decimal system of coinage, has this in its favour, that every thinking man who has devoted expert thought to the question has decided for many years past that that is the only rational system. It lias been adopted by nearly the whole of the more prominent and civilized countries of the world, with the exception of Great Britain. The system has to some extent been adopted in Canada since the Dominion was formed, and it would be fitting, as well as profitable, if the Commonwealth adopted it here. It has been proposed in the House of Commons on several occasions, and has been defeated owing to the sort of inertia which seems, in the old country, to defeat so many reforms. But when we consider that such reforms as the ballot and the Torrens Land Act were passed in these States prior to their being passed in the old country, we need not be deterred from going on with it here because the Home authorities have not thought fit to adopt it. A still greater reform would be the metric system of weights and measures, and I have been asked by several honorable members why I did not include that in the motion. But it is preferable to move slowly in these matters, and if we can get a decision in favour of a decimal system of coinage, in which a substantial profit is to be made, that may pave the way for the subsequent consideration of the still greater reform of the metric system. Knowing that this is not a contentious subject, but that the majority of honorable members are decidedly in favour of our coining silver, I am asking for a committee only in order that we may obtain the facts in such a form as to guide the judgment of the House. It has been said there is a sentimental reason why we should continue the old system of currency which obtains in Great Britain. I myself think there is an additional sentimental reason why the Commonwealth, which is now struggling to create some sentiment of nationality, should make use of the coinage for that very purpose. I am fully persuaded national sentiment rallies round the national coinage almost as much as round the national Hag. I do not anticipate any serious opposition to the motion, which I leave in the hands of honorable members.
– I beg to second the motion. I understand the Government are not averse to it, and I had hoped that they might have done something in the matter themselves. It is necessary that inquiry should be made, and possibly no better way could be arrived at than that suggested by the mover. In view of the fact that the Government are willing that inquiry should be made, I beg to second the motion without further comment.
– The honorable member for Bourke has expressed some sm-prise that the Government have not moved in this matter. But there are a great many matters in which the Government have not had time to move. Honorable members will quite recognise the way in which time lias been filled up by the electoral campaign, by the Royal celebrations, and various other circumstances, which have made it impossible for a human Minister to deal with the whole of the many subjects placed before him. I welcome the motion of the honorable member. Whether or not it be expedient to adopt a decimal system of coinage - and that I. take to be the principal portion of the motion - this is certainly a subject on which the Commonwealth in its early days should make inquiry. If I may express a persona] opinion without binding the other members of the Ministry, I should say I lean strongly towards a decimalmetric system, not only for Australia, but for the whole of the Empire. I believe that if Australia follows Canada in the steps she has taken, it may be expected that added force will be given to tins movement. The separation of the system of the United Kingdom from that of the rest of the world imposes very strong disabilities upon business people in the conduct of their business with foreign countries. Wherever Englishbred men meet in other countries, men who have learned the metric system - which they can do in their school days without very great difficulty, whereas the adult Englishman in middle life might find some trouble in mastering it - the Englishman regards the problem as one which ought to be solved in favour of his own race.
– Canada had a, different system.
– Canada practically adopts the United States system. In point of fact, I found over there that the currency was really paper money. People rather stared at one, when one produced a five-dollar piece or anything in the nature of metal money, because nearly all trading is done in paper. But I welcome the honorable member’s motion for another reason, and that is because I think it is time that the question of coining copper and silver was inquired into. I am happy to say that I received a note from my honorable colleague, the Treasurer, to-day, from the contents of whichI am able to say that he is in possession of information which shows the entire willingness of the Imperial Government that we should undertake at least silver coinage, if not both silver and copper coinage.
– Who will get the profits ?
– Perhaps the select committee will have something to say about that. There is not only propriety in having this inquiry, but there is also a leaning on the part of the British Government to grant us what we ask, and if, on the report of the committee, we have something to ask, so much the better. I think, therefore, we may save time in discussion by at once assenting to the motion.
Mr. V. L. SOLOMON (South Australia).I have no intention of opposing the motion for the appointment of a select committee, but whilst we are inquiring into the advisability of coining silver and copper, we might also consider the question of coining gold. At the present time in different States we have three mints, all of which are working expensively, and it seems to me that if the Commonwealth Parliament is going to avail itself of the power given under the Constitution to deal with the question of coinage, it might and should deal with the whole question, including the coinage of gold, silver, and copper. I would suggest, therefore, to the honorable member for South Sydney, that ho should insert the word “gold “ before “silver.”
– But we already have the right of coining gold.
– I would point out that it is not a question of right, hut a question of the expediency of our doing it! As separate States in the Commonwealth, some of the State Governments are coining gold.
– No; the Imperial Government are doing it.
– The State Governments get a proportion of the profits.
– They find the money, but they do not do the work.
– Whilst this inquiry is being made I think the expediency of the Commonwealth undertaking the coinage of gold might also be dealt with. For the purpose of eliciting the opinions of honorable members, I move -
That the word “ gold “ be inserted before the word “silver.”
I take this course in no spirit of hostility, but simply to make the inquiry as full and complete as possible.
– I accept the amendment.
Amendment agreed to.
Question, as amended, resolved in the affirmative.
Mr. POYNTON (South Australia).I move -
That there he laid before this House a return showing -
The area of acres contained in each of the capital cities of the Commonwealth.
The total sum of money received by each of the States for the sole of the Crown lands on which the capital cities are built.
The approximate unimproved value of the land of the capital cities of the Commonwealth in December last.
As I understand that the Government will agree to this proposal, I content myself with formally moving the motion.
– I am prepared to agree to the motion on the understanding that unless a favorable answer be received from the States there are some things concerning which at the present stage we cannot get full information. But I will undertake, if the motion to which I assent, is carried, to get all the information possible in support of the honorable member’s return.
Question resolved in the affirmative.
– I move -
That the House do now adjourn.
In doing so I have to say with some regret that the difficulty of obtaining some complete accounts has made it impossible for the Treasurer to introduce his Supply Bill tomorrow. While my honorable colleague has obtained his order for Supply he, nevertheless, has not the entire materials for the Supply Bill. The effect will be this : That as the Supply Bill should have been passed by the 9th inst. in order to utilize the authority given by the Constitution from the beginning of the Constitution until a month after the meeting of Parliament, when the Supply Bill is passed it willhave to account for three days from the 9th inst., or in other words up till next Tuesday. I am afraid we shall have to undertake that very serious responsibility on behalf of the Commonwealth. Under the circumstances I am quite sure honorable members will understand the position of the Government in the matter. We could have brought in the Supply Bill earlier, but not with the information which we believe to be due to the House.
– What business shall we take to-morrow?
– I will wait for any suggestions to be made. I should like an expression of opinion as to the state of private members’ business. There does not seem to be anything of a very serious nature upon the business-paper.
Question resolved in the affirmative.
House adjourned at 6.25 p.m.
Cite as: Australia, House of Representatives, Debates, 6 June 1901, viewed 7 November 2016, <http://historichansard.net/hofreps/1901/19010606_reps_1_1/>.