1st Parliament · 1st Session
Mr. Speaker took the chair at 2.30 p.m., andread prayers.
Royal Assent reported.
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are as’ follow : -
asked the Minister for Home Affairs, upon notice -
– The answer to the honorable member’s questions is as follows:-
Nos. 1 and 2. Yes.
– In asking the question which stands upon the notice-paper in my name, I should like to say that I placed it there, anticipating that theImperial authorities had mode the necessary provision, but with the strong feeling that we should know exactly by what authority we are governed, and that there should be full publicationof all the necessary instructions in connexion with so important a matter as the swearing in of the Acting GovernorGeneral. I wish to know from the Acting Prime Minister -
Having regard to the provision in the letters patent constituting the office of Governor-General, to the effect that the powers and authorities of the Governor-General shall not vest in any other person until such person shall have taken the oaths of office in manner provided by the instructions, namely, before the Chief Justice or some other Judge of the High Court of Australia, what provision (if any) has been made by the Imperial Government to enable His Excellency the Acting Governor-General to take such oaths before any other person ?
– I concur with my honorable and learned friend as to the importance of this matter. He did me the kindness to let me know beforehand of his intention to ask the question, so that it might not prove in any degree embarrassing. The answer is -
On the 17th June the Secretary of State for the Colonies informed this Government that the necessary steps would be taken to amend the instructions. On July 12th His Excellency the Acting Governor-General was directed by him to take the oaths of office before the Chief Justice, or other Judge of the Supreme Court of Victoria, the instructions to that effect being validated by His Majesty in Council.
Both instructions were given by cable: We have not yet received by post the Orders in Council validating the Act.
– Has the honorable and learned gentleman any objection to laying the cabled instructions upon the table ?
– I have no objection to laying upon the table the instructions received by the Government; but I understand that the instructions received by the Acting Governor-General were part of a cablegram which dealt also with other matters.
– That portion containing the instructions should be made public.
– The Order in Council will be laid upon the table directly it arrives.
In Committee (Consideration resumed from 24th July, vide page 14650).
Clauses 187 to 189 agreed to;
Clause 190 (Acts of agents).
– A debate took place last week upon the question whether an authorized agent was a person for whose actions a candidate would be held responsible, and I promised to consider whether it was possible to define the powers of authorized agents, and to prescribe how for their acts should bind a candidate; The clause provides that a candidate shall be held responsible for the acts of his authorized agents ; but I have found, upon consultation with the draftsman, that it is very difficult to define the term “authorized agent.” It has been suggested that the clause should be omitted, and that clause 191 should be so amended as to make it clear that every illegal practice must be done with the knowledge and the authority of the candidate before he can be held responsible for it. I think it is the wish of . the committee that candidates should not be held responsible for the acts of their agents unless it can be proved that they were aware that the agents were going to commit such acts. I ask the committee to negative the clause.
– To my mind, it is desirable that there should be some check upon agents. The view taken by the Minister seems to open the way to very undesirable practices. If there be only one authorized agent, as there should be, the candidate should be held responsible for his actions, unless it can be clearly and indisputably shown that they ought not to compromise the candidate, upon whom the onus of proof should lie. The clause, as it stands, is generous to the candidate, inasmuch as it says that the acts of- an agent shall not compromise a candidate if he is not a party to anything illegal that his agent may have done.
– It is a very difficult thing to prove a negative. That is what the clause requires the candidate to do.
– It is not always difficult in matters of this sort to show that the candidate was not a party to something fraudulent or illegal, and the more we liberalize these clauses, the more power we give to candidates who have money, which, I think, is a very undesirable thing to do.
– I am of opinion that the clause should be postponed. I did not gather from the Minister what he proposes to substitute for it. The honorable and learned member for Tasmania suggests that there should be one agent, for whom, the candidate should be held responsible - an excellent and sufficient arrangement if it were possible to divide the Commonwealth into electorates in which only one person could act efficiently on the candidate’s behalf. It is obvious, however, that in very many electorates one agent could not act efficiently and would have to delegate his authority to others. But if we define the term “ authorized agent,” that should get rid of the difficulty. It is obvious that an authorized agent may not do anything which the Bill says he shall not do, and the candidate is to be responsible for his actions. Of course, if some other person chooses to commit an illegal act on behalf of the candidate, and it can be shown that, although not nominally an authorized agent, he waa in point of fact an agent, he will have to be treated as an agent ; but if the secretary to the candidate’s committee, or any other person, is specifically designated by the candidate as his agent, the candidate must be held responsible for the acts of that agent, and the onus will rest upon him of proving that the agent exceeded his authority. This is an important matter, and we should have time to consider any proposal which the Minister may have to make in regard to it.
– The effect of the clause is not to make the candidate responsible unless it is clearly proved that the acts were committed with his knowledge or consent.
– If that is so, by trying to avoid Scylla we steer into Charybdis. We cannot allow a man not to be responsible for the actions of persons who are not his agents simply because he has not expressly authorized them. If we did so. a candidate would be able to do’ practically what he pleased - to offer bribes, to spend a larger amount upon his candidature than is allowed by clause 173, or to do any other illegal act. All that he would have to dowould be to say - “These things were not done by my authorized agents,” and the men of straw who did them would say - ““We were not Mr. So-and-so’s authorized agents.” The candidate should take theresponsibility that belongs to his position,, but he should not have to bear responsibility which does not naturally belong to him. Let us define what an authorized agent is how he may be appointed, what are his functions, and to what extent, if any, the candidate shall be responsible for his actions. But we cannot say that the candidate shall not be responsible for anything that he does not authorize himself, because he gives his committee certain powers, and it is absurd to say that he does not authorize certain acts simply because he ‘does not specifically direct that they be done. If we define what an authorized agent is, all we need say, then, is that the candidate shall be responsible for the acts of his agents. If the candidate likes to appoint as agent a man who will exceed his authority, he must be held responsible for whatever happens. The candidate ought not to be able to say that he did not authorize his agent to perform certain acts which are afterwards proved to be illegal. Every candidate should be responsible for the acts of his agent within the scope of his authority.
– Will the Minister indicate the amendments he intends to propose ?
– I propose to omit from clause 191 the concluding words - “except as mentioned in the last preceding section,” and to recommit clause 174, with a view to insert the words “ by the candidate” after the word “incurred” in the first line.
– 1 do not understand what the amendments will involve, and, therefore, I suggest that this clause should be postponed, to allow of the amendments being printed and placed before honorable members. I decline to discard my responsibility as a candidate, and I also object to assume any responsibility without knowing the extent of it. Every candidate should shoulder his proper responsibility.
Sir EDWARD BRADDON (Tasmania). - T hope that the suggestion of the honorable member for West Sydney will be adopted, so that we may he enabled to properly understand and discuss the amendments. In Tasmania, I have known two elections to be voided, one by reason of an illegal act on the part of the authorized agent of a candidate - in Tasmania a candidate ma)’ not appoint more than one paid agent - and the other by reason of the candidate having been, represented by a man who was claimed to be an unauthorized agent. In both cases acts of bribery were committed, and the candidates were very properly unseated. The provision made against corrupt practices should not be a mere sham. It is desired that there shall be no bribery or corruption, or excessive expense incurred in connexion with elections, but the amendments proposed by the Minister are in the direction of leniency, and will probably permit all these illegal practices to be carried on with impunity, with the result that the man who is able to make the most liberal provision for bribing electors directly or indirectly yill be returned.
Mr. G. B. EDWARDS (South Sydney).I do not think the amendments indicated by the Minister will meet the contention raised during the former discussion upon clauses 173, 174, and 175, that two sets of offences should be provided for - one by the candidate and another by persons acting in his interest. The Minister promised that he would meet such cases, and draft a clause to deal with Offences committed by persons other than the candidate.
– That is the object of the amendments.
– Then I do not think the object will be achieved, because the amendments will not meet the case of a person who is not the authorized agent of the candidate, and who is at the same time spending money largely to secure his return. Certain organizations might, through their secretary or some other officer, spend large sums of money in promoting the return of a candidate, and yet these persons could not be considered the authorized agents or servants of the candidate. The provisions relating to illegal practices in connexion with elections ought to be made as -rigid as possible. If, as some honorable members seem to think, it is impossible to do this, we should omit all these clauses and let the candidates have a free rim. If we amend clause 174 by inserting the words “ by the candidate,” we shall plainly indicate that if a person is not a candidate he may spend as much money as he likes. If we limit the operation of clause 174 to the candidate, we shall open the door to bribery and corruption and other illegal practices on the part of persons acting in the interests of a candidate, and the candidate, instead of incurring expense in securing his return, will subscribe to some political organization which will defray the cost for him. We should make it an offence for any one, whether a candidate or not, to spend money beyond a certain amount, or except in certain ways, upon an election.
– That is what was intended to be secured by the amendments.
-. B. EDWARDS.- I fail to see that the amendments will have any such effect. I hope the amendments will be printed, so that we may have an opportunity of judging of their effect. The Minister tells us that they will accomplish the desired end, but we have a right to consider whether, in our view, the object aimed at will be attained.
Mr. L. E. GROOM (Darling Downs).I think the Minister has, in some respects, given a satisfactory explanation. It was pointed out on a former occasion that it was provided that the candidate’s expenditure would be restricted to £100, and that if any one offended against that provision he would be liable to a penalty .under clause 185. The Minister also said that, under clause 174, it would not be lawful to incur election expenses except in respect to certain specified matters. Then, it Was explained that under clause 175 if any individual Other than a candidate spent money for purposes except those- specified in clause 174, he would contravene the provisions of the Bill. The Minister further indicated that under clause 1 S7 it was provided that any One who spent money for purposes other than those authorized by clause 174 would be liable to a penalty not exceeding £50.
– But the Minister proposes to limit the operation of the clause to the candidate.
– No, he does not. The Minister now says that there are other classes of offences not altogether connected with electoral expenses, such as bribery and undue influence, and that these offences may be committed either hy the candidate or by his agent.
– What is the penalty for exceeding the amount allowed for expenses.?
– That would be an illegal practice, and would be punishable under paragraph (c) of clause 185, which provides that “ an)’ contravention by a candidate of the provisions of Part XV. of this Act, relating to the limitation of electoral expenses,” shall be an illegal practice. For this the penalty provided is a fine not exceeding £200, or imprisonment for a term not exceeding twelve months. If a candidate is guilty of an illegal ‘practice, or authorizes other persons to act illegally, he will be liable to the penalty, and the Minister does not desire to exempt him. He therefore proposes that if any individual, not being a candidate, commits any of these offences, he shall be liable to punishment.
– Supposing a candidate spent £90 and a friend of his spent £20 - what would be the result t
– If the expenditure of the £20 were authorized by the candidate, lie would be liable.
– That reduces the whole i thing to a farce, as it will be only necessary to spend the money without the knowledge of the candidate.
– But it would not be fair to make a candidate liable for expenditure of which he is not aware.
– We shall have to do something to restrict expenditure incurred without the knowledge of the candidate, or the whole of our safeguards will be futile.
– A candidate can be held liable only for his own expenditure, or for that which he has authorized. If illegal acts are committed by an authorized agent, the candidate will under clause 190, be assumed to know of them, unless it is proved that they were committed without his knowledge or consent. The proposal made by the Minister seems to approach very closely to what we desire, and I suggest’ that it should be adopted, and that the clause should be recommitted at a later stage if it is deemed necessary. The Minister’s desire is to make the candidate responsible for his own acts, and for those of his agents, and he also wishes to reach others, such as the chairman of a candidate’s committee, who might commit illegal acts. That is exactly what the Minister’s proposal will do.
– Under these provisions, no candidate would ever be convicted of an offence.
– Yes, he would be. The clauses as originally drafted were very similar to those to be found in some of the State Acts.
– I admit that this clause is a very important one, and instead of expunging it at the present time I am quite willing to allow its consideration to be postponed, so that if the Crown law officers are of opinion that the suggestions which have been made will not adequately meet the position it may be reconsidered. But; I may tell honorable members that only this morning I was in consultation with the two draftsmen of the measure, and the result of our conversation was the proposal which we are now discussing. In agreeing *fo the postponement of this provision, I wish it to be distinctly understood that in the next clause I shall move an amendment which will have the effect of making the Bill more drastic, so far as the liability of agents for the commission of illegal acts is concerned.
Mr. FOWLER (Perth).- The action df ; the Minister savours very much of the historical act of a certain English admiral who put a telescope to his blind eye. It seems to me that under .the Government proposal any expenditure could be incurred on behalf of a candidate, so long as the latter had no knowledge of it. The difficulty which appears to exist in the mind of the Minister in regard to curtailing expenditure can be met by providing that any expenditure by any individual on behalf of a candidate shall be deemed to be illegal, unless the consent of the candidate himself has been given to it. I contend that any individual who acts in any capacity on behalf of a candidate is his agent.
Clause 191 -
Every person shall be liable for an illegal practice committed directly or indirectly by himself or by any other person on his behalf, except as mentioned in the lust preceding section.
– I moveThat the words “except as mentioned in the last preceding section,” be omitted with a view to insert in lieu thereof the words, “ and with his knowledge or authority.”
The adoption of this amendment will render every person who commits an illegal practice liable to prosecution. The provision is much more drastic than was the original proposal in the Bill.
– I do not think so.
– I hold that it is, because it renders every person responsible for expenditure incurred by him.
– It means, by inference, that any person who has not the authority of the candidate can commit as many illegal acts as he chooses.
– Nothing of the kind. . If the honorable member had spent as much time in considering this Bill as I have he would not arrive at that conclusion. Let us. suppose that the honorable member wished to spend £1,000 on behalf of a certain candidate, and accordingly induced some one else to incur the expenditurefor him. In such a case this provision would render him responsible equally with the person who actually committed the illegal practice.
– The amendment constitutes a limitation.
– No ; it is an extension of the liability to punishment for which the clause previously provided. Should any person ask another to spend more than the sum allowed by the Bill on behalf of a particular candidate, he will be as liable to prosecution as will the individual who actually spends the money. When we Gome to consider the clause having reference to the Court of Disputed Returns, it will be seen that that tribunal, under certain circumstances, is vested with power to declare an election void. If any act has been performed which the court considers should invalidate an election - whether it has relation to the expenditure of money for the purpose Of influencing voters, or anything else - it has power either to proclaim such election void, or to declare another candidate elected. That provision has an indirect bearing upon this clause, and I refer to it to show the further liability of the candidate.
– This proposal seems to me to embody in our legislative topsy-turvydom. The Minister cannot see that the effect of the words which he proposes to insert will be to restrict the operation of the clause, and to restrict it in the wrong direction. But unquestionably it is so. When we substitute the words - “With his consent or authority,” for “except as mentioned in the last preceding section,” we nullify the effect of the whole provision. To * sheet home any offence it would then be necessary to prove that it was committed with the candidate’s knowledge and authority. Anything more repugnant to common-sense, or more utterly subversive of the intention of many honorable, members to prevent bribery and corruption cannot well be imagined.
– The right honorable member for Tasmania has made use of some very strong expressions - expressions which cannot be justified by the wording of this clause. It is not intended to restrict the provision relating to the commission of offences, such as bribery and corruption, and the clause does not convey the meaning which he has placed upon it. It simply provides that a candidate is not to be held responsible for illegal acts committed by other persons unless it can be proved that he has in some way connived at their commission. Neither is any other person to be held responsible unless he has acted in a similar way. The words employed in the clause are not my own, but those of the draftsmen, and the proposal under discussion was drafted with a view to extending the liability of persons other than the candidate. It is an attempt to go beyond the candidate and prevent any individual from conniving in any way at the expenditure of money in a manner that is calculated to improperly influence
I the electors. I wish also to say that after the Bill has passed through committee, I intend to postpone its further consideration for a few days in order that honorable members may be supplied with clean prints of it, so that they may know exactly the effect of the amendments which have been made before being called upon to finally revise it.
– Will fresh prints of the Bill be made before any recommittals are proposed?
– No; I shall recommit certain clauses and bring the measure up to the final stage. Clean prints of it will then be put into the hands of honorable members, and with the Crown law officers I shall go through it and see that no loop-hole exists for evading its provisions.
– What attitude will the Minister assume towards proposals to recommit clauses?
– I shall take a most moderate attitude unless any proposal seems to me absolutely unnecessary.
– I have just had a conversation with the honorable and learned member for Darling Downs, who admits that the Minister’s proposal does not meet the case I have instanced. I do not desire to render a candidate responsible for all the actions of unauthorized persons, but I do wish to make it absolutely necessary that he shall know of every penny of expenditure incurred on his behalf. If such expenditure is incurred without the candidate’s knowledge, the person who spends the money, and not the candidate, ought to be responsible. In other words, it ought to be an illegal action for any person to spend money in connexion with any election without the knowledge and consent of the candidate. Only in that way is it possible to keep election expenses within reasonable bounds, and make the law even decently effective.
– Does the honorable member suppose that a man who is going to spend money on behalf of a candidate will ask the consent of the candidate?
– Does this clause in any way affect the candidate ?
– Only as it affects any other individual.
– I remember that in Tasmania Mr. Dugald Urquhart was unseated simply because the night before the election his agent spent 5s. in the publichouse of the present member, Mr. Gaffney, who reported the occurrence. It is a very serious matter for the candidate, after he has spent a lot of time and money, to be liable to be unseated simply because of the act of some one else.
– The honorable member considers that the clause is too severe on the candidate?
– I think the candidate ought to have the protection of the law thrown around him.
– An entirely erroneous view appears to be taken of this matter. Why does a man bribe, or commit an illegal act, in connexion with an election? Is it merely because of his innate tendency towards wickedness? No;itisforthe purpose of securing some person’s return, and the candidate should be responsible for the acts of his agent, although not for the act of any other person. But here is an attempt to make “ every person “ liable for illegal acts committed with the candidate’s knowledge and authority. I ask any honorable member who has experience of mankind, whether, when a person is obtained capable of committing illegal acts, and sufficient money be givenhim for that purpose, that is the sort of man to say he has proceeded with the knowledge and authority of the candidate? Is it common sense to suppose that a man who will commit such acts will admit them, and thus make it possible to sheet home a charge against him ? One would imagine we were legislating for Utopia, whereas we are legislating for flesh and blood candidates. Bribery is carried on to a greater or lesser extent at every election in every State of the Commonwealth. The candidate should be made responsible for the act of his agent, and if we define “ agent “ we shall be able to reach the candidate. If any other person than an agent acts, it will be absurd to make a candidate responsible for that done without his knowledge or authority ; and, in my opinion, a clause of this sort is not necessary. In addition to bribery, a number of offences are set forth ; and with What object? The meaning is that any person contravening the law shall come under clause 186 or clause 187, and submit to certain penalties : and seeing that he is already guilty under the Bill, it is not necessary to say that a person shall be guilty of illegal practice committed by authority. Authority and knowledge has to be proved, and if the personbe the candidate, I do not hesitate to say that that proof will be absolutely impossible in 99 cases out of 100. It would be a slight on Parliamentary institutions to suppose that a person so foolish as to commit an action which would bring him within this clause could be a candidate with any chance of success. When candidates commit breaches of the law they do so carefully, in such a way as to make it almost impossible to sheet the charge home. It is time we made it impossible for any man to buy his way into Parliament ; and it cannot be said that such legislation is impossible. What is the use of clause 191 ? It says nothing, except that every man who breaks the law shall suffer a penalty ; and for that the Bill has already provided several times. It is now proposed that a person shall not suffer unless he has knowledge of or has given authority for the acts ; and no man will ever be convicted unless that knowledge and authority be proved. Unless he be the candidate it can never be construed that a person has given authority indirectly.
– If the clause is of no service, it will do no harm.
– Are we to insert clauses in the Bill merely because they will do no harm ? The clause will do harm to the extent that it will lead people to believe that they may escape penalties for illegal actions, which by no chance ought to be permitted. I shall vote against the amendment, and also against the clause, the latter merely repeating the provisions of previous clauses, and the former implying a limited liability when there should be no limit in case of guilt.
– Clause 190 having been postponed, this clause at present is somewhat like a Chinese puzzle. Who is this mythical “ every person “ ? In clause 190 we deal with the acts of the authorized agent of a candidate, and following on that in reasonable context we come to “ every person.” Surely that means every candidate?
– It does not.
– Does it mean that any person in the street shall become liable for the acts of some other person in the street for acts done on behalf of some person who, not being a candidate, is not directly interested in an election ?
– The person is indirectlyinterested, and that is why he bribes.
– I am sorry we did not fight out clause 190, on which the present clause directly hinges. A reasonable course would be to also postpone this clause, because, without considering clause 190, we are working very much in the dark. Clause 190 is a very usefulprovision, which goes to great length inprotecting both the candidate and those who may work for him ; and both clauses had better be considered together.
Mr. HUGHES (West Sydney).- The difficulty may be got over if we make a candidate responsible for the acts of an authorized agent, and, for the purposes of this Bill, define “ authorized agent “ as a person directly authorized by the candidate to exercise, in addition to the powers that may be lawfully exercised by the candidate himself, any or all of the functions set forth in clause 174, which deals with the expenses allowed. That would make a candidate responsible for the definite acts of a definite person; and for the acts of no other person. The onus would be on the candidate to disprove his authority, and on the person bringing the accusation so far as any other person was concerned. The candidate would be made responsible, but the law would not be so drastic as to be in danger of becoming ineffective. The Bill, as it now stands, appears in these respects very likely to be ineffective, and all the powers in this admirable measure are liable to be set at naught, merely because the Minister does not seem to have the courage to push the matter to its genuine and inevitable conclusion, and make a candidate responsible for the acts of those who support his candidature. No man will commit an act which will not be effective. If a man is backing a horse, and knows that any wrongful or illegal act on his part will result in stopping that horse from racing, he will not commit such an act. Under the clause something may happen to the agent, but not to the candidate, and. the former may be a “ man of straw.”
– Does the honorable member want to make a candidate liable whether there is or is not agency?
– I wish to make the candidate responsible for functions which should be exercisable by no person but the candidate himself or his agent. The candidate knows what functions have to be exercised, and he ought to be responsible for nominating reliable agents. If these agents prove to be men who flout the law, which is supposed to guarantee the people pure elections, the candidate ought to be responsible.
Mr. FOWLER (Perth).- In view of what I have already said, I think that I ought to submit an amendment. The amendment which I would suggest would read as follows : -
Any person incurving or authorizing expenditure on behalf of a candidate without the written authority of the candidate or his agent, authorized in writing, shall- be guilty of a contravention of this Act.
Sir EDWARD BRADDON (Tasmania). - Before we omit the words which the Minister has proposed to strike out, it is necessary to know whether clause 190 is to be passed or not. Does the Minister think that he has jettisoned that clause 1 If it is intended to strike out clause 190, it would be a consequential amendment to omit the words referring to the preceding section, but otherwise they ought to stand part of the Bill.
Amendment agreed to.
Mr. V. L. SOLOMON (South Australia). - I presume that it will now be competent for the honorable member for Perth to move, by way of a proviso to the clause, the amendment which he has suggested. It will be more convenient to follow that course than for the honorable member to move the insertion of a new clause, which cannot be done until the committee has gone through the Bill. The clause before the committee seeks to penalize candidates in regard to expenditure of which they may never have heard. I do not think there is such a provision in other electoral Acts. If the honorable member for Perth will move his amendment by way of a proviso, I shall be happy to support him, because, while we desire to prevent bribery and corruption in every shape, we do not desire to place candidates under such extreme penalties as to make them responsible for the acts of persons who may be enemies to their candidature.
– I commend the suggestion of the honorable member for Perth to the Minister for Home Affairs, although I think that the object will be best attained by proposing a new clause.
– If the honorable member for Perth will give me his amendment, I will afford him an opportunity to move it as. a new clause.
– The proposal deals with the incurring of expenditure ostensibly on behalf of candidates, whilst the clause before us deals with illegal practices generally, including a number of other things besides illegal expenditure. What the honorable member for Perth aims at is a very proper object to attain, namely, to insure that persons who spend money apparently on behalf of candidates shall have a proper authority for such expenditure before undertaking it. What we desire is to trace illegal expenditure.
– I shall be very glad to help the honorable member for Perth by giving him an opportunity to propose his amendment, but of course until I know exactly the form his proposal takes, I cannot say whether the Government will support it. The object of the honorable member, however, is the same as that of the Government, namely, to prevent expenditure in an underhand way, so that it cannot be traced. It is a most difficult thing to do. As far as I could gather, the proposal of the honorable member for Perth would be better as a new clause, and when the Bill has passed through committee it would be competent for him to move it. If he will give notice of his proposal so that I can see its precise terms, I will give him every opportunity to have it discussed, and will see whether the Government are able to support it.
Mr. L. E. GROOM (Darling Downs).I wish to ask whether the Minister can arrange to follow the practice adopted in Queensland in regard to amendments proposed by private members 1 That practice is to allow honorable members to avail themselves of the assistance of the parliamentary draftsman, thus enabling the clauses and amendments to be drafted in such a shape as to harmonize with the Bill, of which they are intended to form part. This practice has been found very convenient in Queensland.
– The parliamentary draftsman is a member of the staff of the Attorney-General. I can see no objection to the acceptance of the suggestion of the honorable and learned member for Darling Downs, and if the Attorney-General has no objection to it I do not see why it should not be followed.
Mr. FOWLER (Perth).- I am much obliged to the Minister for his suggestion 1 with regard to my suggested amendment, and shall have much pleasure in following it.
Clause, as amended, agreed to.
Any attempt to commit an offence against this Act shall be an offence against this Act, punishable as if the offence had been committed.
– Is there any particular sense in having this clause in the Bill ? It is sufficiently difficult to trace an actual offence under this measure, but to attempt to prove an attempt would be utterly impossible.
– It is a very common provision in other Bills dealing with offences.
– It may be so in regard to ordinary criminal acts, when an attempt can be very readily proved.
– In this case there may be a criminal intent to commit an offence.
– But the honorable member, from his long parliamentary experience, will know that it is impossible to reach a man who has made an ineffectual attempt to bribe or corrupt anybody.
– I find that this clause is not to be found in the States Acts.
– It ought to be in them.
– I suppose it is inserted in this Bill because it is regarded as a fault that it should be absent from the States Acts. I do not know that it is very important, but it is an attempt to prevent improper practices. I know that it would be a very difficult thing to prove an attempt to bribe or corrupt, but still the clause might be a deterrent, and under the circumstances we ought to retain it.
– It will be seen that this clause is absolutely necessary if we consider the offences referred to in clause 187.For instance, there is the offence of fraudulently putting a ballot or other paper into a ballot-box. A man may be detected in the act, but before he has completed it, and it is necessary to have a clause to enable us to deal with that offence. Again, a person may fraudulently take a ballot-paper out of a polling booth. A man may be detected going out of the booth with a paper, but if he has not gone outside he will not have committed the offence, and unless this clause is retained, he cannot be dealt with. In the same way it is an offence for a man to vote more than once at the same election, and if he makes an attempt to vote a second time at the same election, he will virtually have committed the offence, because it is his intention to do so, and there should be some means of dealing with him. In legal and moral offences the intention is the essence of the criminality, and there should be some means of dealing with men who attempt to commit these crimes.
Mr. HIGGINS (Northern Melbourne).I fancy that the reason why this clause is not found in the States Acts is that the framing of the sections of the States Acts is different, though theyhave the same effect in the result. If a candidate offers a drink to a voterwith a view toinducehim to befavorable, and the drink is not taken, the offer should still be treatedas an offence; and I suppose the idea in framing this clause was to provide that, even though the virtuous voter refuse the drink, the candidate shall still be considered guilty of an offence in attempting to bribe the voter. Though the wording of the clause may be new, I would ask the Minister to postpone it until we are dealing with clause 190, because I think he will find that it will fit in with the words of the preceding clauses as they stand. In clause 180, for instance, it is provided that, without limiting the general effect of the words in the preceding clause, bribery particularly includes the supply of meat, drink, or entertainment, and that should be punished, although the voter may refuse the bribe.
– What is the objection to retaining this clause, which really affects all the clauses dealing with offences ?
– I think the clause ought to be retained, and I have spoken under the impression that the Minister was proposing to omit it:
Sir EDWARD BRADDON (Tasmania). - The case quoted by the honorable and learned member for Northern Melbourne of the virtuous voter who refuses a drink is not by any means a convincing one. I do not think that in such a case the attempt to bribe could be sheeted home. The instances given by the honorable member for Coolgardie have quite convinced me that there are offences under the Bill the attempt to commit which can be clearly proved, and such attempts should be punished in the same way as if they had been successful.
Clause agreed to.
Clauses 193 and 194 agreed to.
Clause 195 -
Offences against this Act punishable by imprisonment exceeding one year are indictable offences.
– I ask the Minister to consent to the omission of the words “ exceeding one year.” Honorable members will see that the effect of the clause is that in a case where a man is sentenced to a term of imprisonment of less than one year he will not have the right to appeal to a jury. I take it that every offender who is liable to imprisonment should be allowed to appeal to a jury of his fellows if he chooses; that is the proper tribunal to try offences of this sort. I think the provision is against the Constitution, which says in effect that in all offences of a criminal nature the jury system is absolutely established. It is the law of Australia and the common law of England, that if a man steals only the most trilling thing he has the right to be tried before a jury and not before a justice of the peace. Under this clause, a justice of the peace will have the right to imprison an accused person for eleven months for an offence against this Bill. I move -
That the words “exceeding one year” be omitted.
– I do not think it would be a wise course to make the amendment the honorable and learned member proposes. Suppose a man is liable to be sentenced to imprisonment for a month or a week, he may be able, through the delay consequent upon an application to go before a jury, to really kill the whole effect of the Bill. I think the effect of the amendment would be in some degree to nullify that fear the existence of which will probably prevent a good many attempts to commit these offences. I prefer the clause as it stands.
– There is a good deal in the contention of the honorable and learned member for Corio. After all, the offences against this Bill will really be only misdemeanors, and a person offending against these provisions ought not to be treated as if he were in the highest degree a criminal.
– Some of these offences are criminal offences.
Mr.V. L. SOLOMON.- In the true sense they are misdemeanours. They are not crimes against property or life.
– Some are worse than offences against property, which is a little sod to some honorable members.
– We have made the Customs Act equally stringent, and under it men are liable to imprisonment without having the right to appeal to a jury of their countrymen. There is a good deal in the contention that it would be wise to permit the defendant to have at least some choice as to how he shall be dealt with under this Bill. We are here passing clause after clause dealing with offences with the support of the right honorable member for Tasmania, Sir Edward Braddon, who seems to be a perfect tyrant in the matter. The right honorable member is constantly supporting most tyrannical provisions in this Bill, and I do not know how to account for it. I know that the mercantile community of Australia have already protested against the difficulties in which they are placed by the passing of too stringent a Customs Act. At the time the Act was being passed it was pointed out that too much power was being given, and we are doing a similar thing now. It is now complained throughout the Commonwealth that the Customs Act is too stringent, and it behoves us to consider whether we are wise in treating as a criminal any man who makes a mistake or commits some trifling offence in regard to an election. Are we going to continue this kind of legislation and place in the position of a criminal every man who, perhaps, through absolute ignorance, offends against the provisions of this Bill ? I am as anxious as any member of the committee to prevent bribery and corruption or any unfair action in connexion with elections. At the same time, I desire to act reasonably. The honorable and learned member for Corio has called attention to the fact that under this clause an offence punishable by imprisonment exceeding one year is to be considered to be an indictable offence. Why exceeding one year? Why should not an offence, which is not punishable by imprisonment exceeding one year, be an indictable offence, and why should not the offender be tried by a jury instead of by justices of the peace? During the present session the knowledge, ability, and justice of gentlemen occupying positions as justices of the peace throughout the States have been impugned by a legal member of the present Government, and is it not therefore necessary that every man offending against the provisions of this Act should have an opportunity of being tried by a jury instead of by justices of the peace?
Why should it be necessary that a liability to imprisonment for twelve months should limit his right to appeal to a certain court 1 I appeal to the legal members of the committee, and especially to the honorable and learned member for Northern Melbourne, to say whether we are not going a little too far in providing that only offences punishable by imprisonment exceeding one year shall be considered indictable offences.
– Whatever may be my views as to the stringency of the Customs Act, I regard every stringency in this Bill for the purpose of securing purity of elections as thoroughly justifiable. But surely it is not in the interests of the average candidate that his case should be taken before a jury? He would be saved very great expense if the hearing were before a justice of the peace.
– That argument applies to all jury cases.
-It is sufficient for my purpose that it applies here. I do not share the superstitious feeling in regard to trial by jury with which many people are imbued. It was said by an eminent man that, if he were innocent, he would desire to be tried by a judge ; if guilty, by a jury ; and there is a good deal in his remark. There is no peculiar magic about trial by jury, and we have no reason to suppose that justices of the peace would not be competent to decide honestly such cases as came before them. I hope that the clause will be carried as it stands.
Mr. BATCHELOR (South Australia).It seems to me that a great many of the remarks of the honorable member for South Australia, Mr. V. L. Solomon, had not much application to the question before us. A man is not more or less a criminal because his case is tried before a magistrate or before a jury, nor does it make any difference to a person who is convicted whether he is awarded six months- with hard labour by a magistrate, or as the result of his trial before a jury. The whole point at issue is whether it is better to have offences which are punishable by imprisonment, for less than twelve months tried by justices of the peace or b)’ a jury.
– Under the Punishment of Offences Act, jurisdiction in these cases may not be exercised except by a stipendiary, police, or special magistrate.
– It seems to me that that is sufficient. I do not wish to reflect upon the jury system, but it appears to me that in times of great political excitement it would not be the best thing to empanel a jury to try a case in which some candidate was accused of an illegal practice. In such times men are apt to look favorably upon acts committed by candidates and others who advocate the political views which they hold, and to characterize as gross abuses and political immorality the acts of those who advocate other views. In my opinion, a special magistrate will be less likely than a jury to be swayed by political feelings. In such cases any number of jurymen would be challenged.
– But a prisoner cannot challenge the justices before whom be is brought.
– He should not have the right to do so. They are appointed by impartial authorities, and if they could be challenged I think it would, increase the risk of miscarriages of justice.
Mr. HIGGINS (Northern Melbourne).As I understand the amendment, its effect would be to compel all offences against the Act punishable by imprisonment to be tried before a jury. Under the clause as it stands, an ordinary magistrate could not convict for an offence which .was not indictable, because it is provided in the Punishment of Offences Act that jurisdiction with respect to persons- who are charged with offences against the laws of the Commonwealth shall be exercised only by stipendiary, police, or special magistrates.
– Would there be an appeal from their decisions 1
– Section 4 of the Act to which I allude provides that -
Subject to the provisions of any Act, an appeal shall lie from any conviction, judgment, sentence, or order of any court of a State exercising jurisdiction under this Act to the court, and in the man nea- provided d3’ the law of that State, for appeals from the like convictions, judgments, sentences, or orders, in respect of persons charged, with offences against the laws of that State.
– That removes a danger.
– Yes. I do not see why a. magistrate- should not have the right to exercise jurisdiction in regard to offences punishable by imprisonment for a period not exceeding one year.
– The honorable member for South Australia, Mr.
Batchelor, said that it did not matter to the convicted person whether he was sentenced to a term of imprisonment by a magistrate or as the result of atrial by jury. So far as the sentence itself is concerned, there may be no difference, but a great question of principle is involved. I do not think that the contention, that cases of the character referred to in the Bill should not be tried before juries, because juries are liable to be biased, is a sound one.
– Would the honorablemember require a case punishable by a week’s imprisonment to be tried by a jury ?
– While it is true that juries are often biased, so, too, are magistrates and judges, because they are all members of the human family, and are therefore liable to prejudice. I contend that in regard to the offences dealt with by the clause, as in regard to other offences, the person placed upon his trial should have the right to say whether he will be brought before a magistrate or before a jury of his peers. He is the best judge in a matter of that kind.I shall support the amendment.
Mr. CROUCH (Corio).- The time occur pied in this discussion has not been wasted. The honorable member for Canobolas has pointed out that a great principle of British law is at stake. All the arguments which have been used against the amendment apply equally against the jury system in, general. If it is right that offences punishable by imprisonment exceeding one year should be tried by a jury, why should not offences punishable by imprisonment for a shorter period be tried in the same way ? It is possible under the Punishment of Offences Act, for one justice of the peace to sentence an offender to any term of* imprisonment not exceeding sixmonths, because, although that.Act provides that its jurisdiction shall not be exercised except by a stipendiary, police, or special magistrate, it also allows its exercise by -
Some magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction.
There are hundreds of districts in the sparsely populated portions of the continent, and especially in Western Australia, where a stipendiary, police, or special magistrate is never seen, and consequently some magistrate of the State would have to be specially authorized by the GovernorGeneral to exercise jurisdiction there. The right honorable member for Tasmania, Sir Edward Braddon, assumed that juries will be strongly influenced in election matters.
– I did not say so ; but I have no doubt that they would be.
– Are not justices of the peace also likely to be biased, seeing that they are generally appointed because, in the past, they have proved themselves to be active electioneering agents, and that that is largely the reason for their appointment? The limitation as to the term of imprisonment to be inflicted would largely restrict the number of cases which could come before a jury. The honorable member for Northern Melbourne has pointed out that it will be possible to appeal from the decision of the stipendiary or special magistrates, but section4 of the Punishment of Offences Act provides that -
Subject to the provisions of any Act an appeal shall lie from any conviction, judgment, sentence, or order of any court of a State exercising jurisdiction under this Act to the court, and in the manner provided by the law of that State for appeals from the like convictions, judgments, sentences, or orders in respect of persons charged with offences against the laws of that State.
In Victoriathere can be no appeal upon facts -such as would alone be in dispute in cases arising under the Bill - from a court of summary jurisdiction to a higher court.
– Power of appeal is given to the court of general sessions.
– In any case such an appeal would be upon the facts to a County Court Judge, or, upon a point of law, to the Supreme Court upon an order to review, and not to a jury. Any candidate would be liable to innocently commit an. offence under the Bill, and it is desirable that such cases should Be tried by a jury of twelve rather than by justices of the peace.
Mr.FOWLER (Perth). - I do not see any reason for amendingthe clause. I admit that the decisions given by magistrates empowered to adjudicate in cases arising under this Bill may not in all cases be satisfactory, but I question whether trial by jury would be any improvement. It would be undesirable to refer to a jury a dispute in regard to an election into which strong religious feeling had been imported. In these cases, which frequently occur, it would be difficult to arrive at finality. I therefore hope that the honorable member will not press his amendment.
Clause agreed to.
Clause 196 agreed to.
Clause 197 -
The validity of any election or return may be disputed by petition, addressed to the court of disputed returns, and. not otherwise.
– This clause introduces the principle of referring election disputes to the High Court of Australia, instead of to a court consisting of members of the House in connexion with which the disputed election has taken place. However satisfactory such a proposal may be from the point of view of members of the legal profession, I doubt whether the cause of substantial justice or the interests of the ordinary candidate who is returned to Parliament would be served by referring disputed elections to the High Court, instead of to the court of Parliament. I have a very lively recollection of the heavy costs which litigants have been compelled to pay in order to secure justice in the law courts. The law’s delays and the law’s expense are bywords, and anybody who has once resorted to law will never do so again if he can possibly help it. I speak with all respect to the profession to which the Minister for Trade and Customs belongs.
– My advice to every one is to keep away from the law as long as possible.
– Then why do the Ministry propose that election petitions should be brought before the High Court?
– When I last appeared before a court of disputed returns to obtain permission to file certain accounts, the court was constituted, with the exception of the presiding Judge, entirely of members of the Opposition.
– That might have been an exceptional and accidental misfortune. At any rate I consider that the fairest tribunal to decide whether an honorable member has been properly elected is one consisting of his fellow-members in the House to which he has been returned. Justice will be more readily and less expensively obtained from such a court than from one composed of men who will view everything from a narrow legal stand-point. I therefore move -
That the words “court of disputed returns” be omitted, with a view to insert in lieu thereof the words “ Clerk of the House affected by such election or return.”
– I am quite at one with the honorable member in his desire that a court consisting of Members of Parliament should deal with disputed returns. But I would point out that this object would be better served by proposing an amendment in clause 198, which states how the court of disputed returns shall be constituted. It is not necessary to make the amendment contemplated by the honorable member in this clause, because we must provide for some tribunal to which petitions shall be referred.
– If the honorable member desires that a committee of Parliament should be appointed, the provision for the appointment of a court should not be retained.
– A tribunal may be called a committee or a court. In South Australia we have a committee of disputed returns for each House, consisting of Members of Parliament, and presided over by a Judge of the Supreme Court.
– That is better than the New South Wales system.
Mr.V.L. SOLOMON.- It is a very good system, and I was indeed surprised to hear the Minister for Trade and Customs say that he had had a bad experience in connexion with it. As far as I know, the decisions of that court - constituted, as it is, of members of the House itself, and presided over by a Judge of the Supreme Court whose duty it is to direct his colleagues upon questions of law - have never provoked any dissatisfaction. To my mind, such a tribunal would serve all requirements. I therefore suggest that the honorable member should not persist in his attempt to alter this clause, but should deal with the question of the constitution of the court when the next provision is under consideration.
– I trust the committee will insist that a non-political court shall decide all questions relating to disputed returns. I quite agree that whenever a dispute occurs it is desirable to save disappointed candidates and Members of Parliament, who may have been tentatively elected, as much expense as possible. But my experience is that in almost every dispute which has come before the Elections and Qualifications Committee in New South Wales, lawyers have been engaged just as though it were being heard in an ordinary court of justice. The more important the case is, and the greater the resources which are possessed either by the petitioner or the sitting member, the higher is the standing of the lawyers engaged. I have seen the present Prime Minister, who had a good standing at the New South Wales bar, employed in a case before that committee. Indeed, I have even seen two lawyers engaged upon one side - one instructing the other. Only the other day I saw a bill for £180 which the lawyers have rendered to Mr. Whitelaw in respect of the petition which he lodged against the return of a member to this House. That was the amount which they charged for preparing his petition, and appearing for him before the Elections and Qualifications Committee. It would have cost him no more had his case been heard in any court in the land. If either side to a dispute engages a lawyer, the other side is almost bound in self-defence to do likewise.
– No. I fought a case against a lawyer and won it.
– The honorable member would have an equally good chance of success if he appeared before a court, which is bound by the provisions of clause 204, which sets out “ that the court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evid- ence before it is in accordance with the law of evidence or not.” A broader basis for a court to work upon it would be impossible to conceive.
– Does the honorable member think that a court of law could work upon that basis?
– If it were composed of reasonably fair minded men - and surely the services of such ought to be available - we could rely upon their disregarding all technicalities.
– Would they be fairer than are our fellow members?
– In certain cases, most undoubtedly they would. What is the good of using honied words to express that which we do not mean ? We know that every member is naturally determined that his party shall be on top.
– That is a libel on our fellow members.
– I do not say that any honorable member would act contrary to the law, or would do a substantial injustice ; but in every case in which a doubt existed, and in. which the party composition of the court entered into consideration, that doubt would be weighed in favour of the side to which he belonged. It is against human nature for honorable members to expect otherwise. Knowing the feeling which exists against the labour party in Queensland to-day, I say unhesitatingly that if one of the Federal representatives contested any electorate in that State, and as the result of a dispute had to appear before a court composed solely of politicians who are favorable to the Philp government, he would get very short shrift indeed. In South Australia, at the present moment, two political sections have combined to keep the members of the labour party off every committee that is appointed. This fact goes to show that party bias is rampant, because it is generally admitted that in political matters every class should be represented.
– In small political questions, but not in the matter of determining a disputed election.
– If political parties are at all evenly divided, the question of who is going to occupy a vacant seat is the biggest question of the hour. It is most unfortunate therefore that honorable members, who are naturally biased in favour of those holding similar political views, should be asked to decide whether or not an election has been properly conducted.
– That may be so in New South Wales, but I would prefer to trust my fellow members here in preference to any outside court.
– No doubt as the years rollon, party conflict in this Parliament will become more bitter than it is to-day.
– I hope not.
– I hope not, but the probabilities point in that direction. Therefore it would be most unwise to leave the decision as to who would occupy any particular seat in the hands of a body distinctly of a party complexion. Much as I object to lawyers as an institution, I still believe that the best tribunal to decide disputed elections is either the Supreme Court or the High Court, so long as the rule is laid down - as it is in this Bill - that it is not to be bound by ordinary legal procedure, or by any technicality that may surround the case. I trust that the committee will insist upon a non - political court deciding these matters.
– The slur which the honorable member for
Bland has oast upon Parliamentary bodies is, at any rate, inapplicable to honorable members of this House, and his contention has been abundantly disproved by the finding of the last committee which sat. It so happened that a majority of the members of that committee belong to the Opposition, but it cannot for one moment be urged that party bias influenced that finding in any way whatever. I may say - and there is no breach of faith involved in my declaration - that the member of that committee who took the strongest view against the petitioner was a member of the Ministerial party. In speaking of Mr. Whitelaw’s legal expenses, in connexion with that case, the honorable member for Bland stated that they totalled £180. I cannot conceive what the money was charged for, because 180 shillings would have more than amply compensated for anything done either in the way of preparing the brief or in advocating it. But I would ask - What is £180 as compared with £1,200 or £1,500 which had to be paid by a member of the Tasmanian Parliament who who was unseated, and whose case was heard before the Supreme Court of that State 1 I venture to say that if a Parliamentary tribunal had had to determine that case, the expenses would not have exceeded £50. I hope that the present method of deciding disputed elections will be retained, because I have faith in the integrity and justice of honorable members.
– I was somewhat surprised to hear the remarks of the last speaker. I was under the impression that he favoured the proposal contained in this Bill, as against ‘the antiquated and incomplete method which has operated in some of the States up to the present time.
– I am not in favour of making the settlement of election disputes expensive.
– I do not know whether or not the right honorable member is responsible for it, but in Tasmania the appeal is to the Supreme Court. I anticipate that the Tasmanian Act unfortunately does not contain the provision which was referred to by the honorable member “for Bland, the effect of which must be to minimize expense. In New South Wales petitions are heard by an election and qualifications committee, and I dare say other honorable members have some experience of such a body.
It is perfectly correct that lawyers and barristers are employed on either side in the hearing of election petitions in that State ; and it is not fair to call upon members, who may -have strong political bias, to adjudicate. However much members of Parliament may desire in such cases to divest themselves of political feeling, they are almost called upon to allow that feeling to take effect, as I think they do to a limited extent.
– That is curious morality !
– Unknown to ourselves, we are to a certain degree influenced by- such feelings, though I cannot speak personally, because I never acted as a member of a parliamentary elections and qualifications committee. I have, however, known of oases in which I was pretty well certain as to the result before the petition was heard ; and the system in New South Wales is not one calculated to bring about the best results. In Queensland and Victoria such questions are decided, as in New South Wales, by a parliamentary committee.
– In Queensland the committee is presided over by a Judge of the Supreme Court, the committee deciding questions of fact, and the Judge questions of law.
– In South Australia the committee is formed of four members of the Legislative Council,, or four members of the Legislative Assembly, as the case may be, presided over by a Judge of the Supreme Court. Honorable members have heard what the Minister for Trade and Customs said of a case in which he was concerned in .South Australia, and in which the committee consisted of four members, who were his political opponents.
– Did the committee give an adverse decision 1 That is the point.
– I do not know whether the committee gave an adverse decision, but I should think it very likely they did.
– The Minister for Trade and Customs did not say so.
– But I infer that the Minister for Trade and Customs was not very well pleased with the .constitution of’ the committee. In Western Australia the tribunal consists of two Judges of the Supreme Court, and in Tasmania the Supreme Court hears petitions.
– Up to 1897, at any rate, the petitioner had to lodge £500 in Western Australia.
– That, I take it, is not the case now. The only point which I thought would be raised was whether or not the members of the House of Representatives or the Senate, as the case might be, should refer the petition to the court. Clause 198, sub-clause (3), gives power, in case the High Court is not instituted when there shall be a disputed election, to the State Court to adjudicate, and the question of expense has been considered as well as the desirability of having a non-political tribunal. Honorable members will, I think, admit that the proper course is to appoint a non-political body.
– No, no.
Mr.V. L. Solomon. - This Parliament is the highest court in the land, and ought to be above suspicion.
– In my opinion, petitioners, and those defending themselves against petitions, will go with greater confidence to a non-political, than to a political, tribunal.
– A man will if he has a good banking account.
– I think a banking account will be drawn upon just as heavily in the case of a parliamentary committee as under the clause. If it appear to the court that great expense will be incurred in conveying the parties agreat distance to the place of hearing, there is power to remit a case to a State court or Judge of a State court.
– There should be no such power.
– The honorable member does not seem to recognise any virtue in the clause, and on the point we must agree to differ. My aim, and the aim of the Government, is to have a nonpolitical court constituted.
– Not the Minister’s aim, but the aim of the lawyers with him.
– I have seen too much influence attempted in political courts to have any great confidencein them.
– At any rate, I had to pay my “ boodle” in South Australia.
– I dare say that the honorable member had a bad case.
– I had a good case, but it cost a fortune to upset the election.
– The honorable member for Bland has referred to one or two instances of strong political bias in State Parliamentary tribunals.
– State Parliaments are the products of bigotry.
– If what the honorable member for Tasmania, Mr. O’Malley, says is correct, there must be a great deal of political bias displayed in South Australia, and, from observations which have been made this afternoon, the same remark may be made of Queensland. Are persons, selected from one side of a House or the other, capable of absolutely putting aside the political bias which they feel so strongly upon ordinary questions?
– They did so in the two cases which have arisen in this House.
– I do not wish to refer to those cases, because I may have a different opinion in regard to one of them. I hope we shall not have a too protracted discussion on this clause, because I wish to get the Bill passed as quickly as we reasonably can. I recognise chat theproposal before us is new, so far as many honorable members are concerned, but I think they need have no fear as to the cost of dealing with petitions. It will be much more satisfactory to have questions of the kind dealt with by a non-political court than by a parliamentary committee, such as has existed in most of the States in the past.
– I am glad to have an opportunity of opposing this clause. I listened very attentively to the honorable member for Bland, whose utterances, no doubt, are the product of New South Wales parochial bigotry, and I am sorry to say that, in this respect, the Minister is his twin brother. Experience is the unerring test of all human undertakings, and both the right honorable member for Tasmania, Sir Edward Braddon, and myself know something of election petitions in courts of law. In Tasmania a few years ago, the costs in the Aikenhead case amounted not to £1,500, but to nearly £3,000, and in the caseof Dillon and Dobson, the former was ruined by the expenditure entailed. What a pity it isthat honorable members, who come fromthe various States saturated with local prejudice and bigotry, should have the fear that no justice can be obtained from a tribunal of this House. In the case of the petition presented against the honorable member for Western Australia, Mr. E. Solomon, and also the petition presented against the return of the honorable member for Tasmania, Mr. Hartnoll, absolute justice was done. Had those cases gone before the Supreme Court, lawyers would have argued for weeks and weeks, with the result, perhaps, of upsetting the election, and costing the Commonwealth £2,000 or £3,000, in order to bring about exactly the same result as that achieved by the committee. Why are honorable members afraid to trust this House ? It may be said by honorable members that the United States Congress is a corrupt body ; but, so far as I have read or heard, the justice rendered there in the case of disputed elections has not been questioned for 100 years. Turning once more to the cases which have arisen in the House of Representatives, no one has ever said that Mr. Whitelaw, the labour candidate, who petitioned against the return of the present member for Tasmania, Mr. Hartnoll, did not get justice, although the. chairman of the committee, which heard the petition, was the right honorable member for Tasmania, Sir Edward Braddon, and, in politics, diametrically opposed to the petitioner’s. I am not one of the poorest members in the House, but if my election were disputed to-morrow, and the case had to go to the Supreme Court, I should, if my opponent were a man with a long purse, tell him to pay me my expenses and take the seat. I am determined that so long as I am a candidate, or -a prospective candidate in the Commonwealth of Australia, I shall not hand over my hard-earned savings to a few lawyers merely in order to secure an election. There is no hope for a man who has to take a disputed election to the Supreme Court, as is well illustrated in the case of Mr. Tucker, in South Australia. No doubt we get justice at the Supreme Court, but it is justice based on the length of the purse. If there be an insignificant lawyer, and a great lawyer, justice is always on the side of the latter - at least court justice.
– Lawyers are employed before Elections and Qualifications Committees.
– If cases are taken to the Supreme Court, the parties ought to “ face the music “ themselves, and the lawyers be shut out.
– There is something in that suggestion.
– Under any condition I shall fight to the “last ditch” for the principle that this House shall be the tribunal ; I refuse to throw away my democratic rights. Honorable members have known each other now for the last fourteen months, and yet we hear the parrot cry that a committee of this House cannot be trusted to do justice. Such an opinion, expressed by the honorable member for Bland, is only a symptom of the conditions under which he has evolved in his political life ; it does not do justice to his head. I am of the labour party ; but I know that in the case of a disputed election, any labour representative would go against the interests of his own party ten times over in order that justice might be done. Though the honor able member for Bland is the leader of the party to which I belong, if his election were disputed, to-morrow, and the members of the labour party ran the risk of losing the honorable member’s services, and we might keep him in by working one little trick, I doubt whether there is a member of the party who, notwithstanding all his prejudices, would not be willing to do absolute justice to the petitioning candidate. It is a great pity to hear honorable members talking against their own House. Honorable members should regard themselves” as belonging to one family ; and to throw any doubt upon the honour of the House is like abusing the members of one’s own household. I shall fight against this clause to the last ditch.
Mr. V. L. SOLOMON (South Australia). - Our experience of the working of courts of disputed returns in the other States should be our guide in the Federal Parliament. It is an old maxim that the Parliament of a country is the highest Court qf Appeal, to which every citizen has recourse. Parliament is above and beyond the Supreme Court. The Parliament of a country is its supreme court of equity, and should be a court which could always be relied upon to do justice. If this has been recognised to be the case in the State Parliaments, surely, now that the Federal Parliament has been established - composed of men trusted by every individual State in the Commonwealth - it should be a court to which its own members at least ought to have no hesitation in submitting themselves in the case of a disputed election. Whether we are free-traders or protectionists, and whether we sit on the right or the left of the Chair, there ought to be no doubt about trusting to Parliament to decide any question where the sole matter in dispute is that of doing right and justice between the person who has been returned and the man opposed to him. “Unless we can trust our fellow members to do that justice, we admit something that I, indeed, should be sorry to admit - that the code of honour amongst members of the great Parliament of Australia is lower and less to be relied upon than is the code of honour in a little State Parliament. There is not a member of this Parliament - no matter on what side he sits, and in spite of the little differences that occur in regard to political questions - whom I would not trust absolutely to do even-handed justice in any case that was brought before him. In South Australia we had a court of disputed returns, composed of four members elected by each House of Parliament, and presided over by a Supreme Court Judge. Those four members’, in every instance, were men who, irrespective of the side of the House upon which they sat, had earned the good-will, high opinion, and confidence of their fellow members. They were selected because every man in the Parliament trusted them implicitly, and relied upon their sense of justice. .During my twelve years’ career in the South Australian Parliament, the fathers of the House in which I sat were on every occasion elected as members of the court of disputed returns. What a confession of incompetency, doubt, and absolute mistrust of our fellow members it would be to say, “We cannot trust ourselves, or trust the best men selected from amongst us, to decide cases of disputed elections, and we must send them to the court.” That is a confession that no member of this House should dare to make, and that any -member who made it should -be ashamed of. I should be perfectly willing, if a petition were presented next week disputing my return, to trust myself to four members selected, not merely from each side of the House, but from the side opposite to which I sit. I would trust them entirely and implicitly to do me justice. And surely every honorable member, notwithstanding our little troubles and disputes and differences on party questions, is ready to believe that four members can bc selected haphazard from this House who could be relied upon to do absolute justice in such a case?
Suspicion must “haunt the guilty mind”, if there be a member who has a doubt on that point. I fully believe that any committee selected by this House could be absolutely trusted to do justice. Speaking for myself, if I were a member of a court of disputed returns, and had any leaning at all, I should be likely to lean towards the man who was opposed to me in polities rather than that there should be a suspicion of my leaning towards my own side. I believe that I express the inclination of most honorable members when I say that. Our leaning, if any, would be in the direction of justice to the man who was not on our own side in politics. To take the matter out of the hands of Parliament would be a mistake, and a confession that we do not trust ourselves. And if we confess that we are unfit to decide a case of this kind, and admit that there is a suspicion that we may be biased by party feeling, how fit are we to rule the destinies of Australia in the larger and much more important issues of national life 1
Mr. HIGGINS (Northern Melbourne).I have not had the advantage of hearing the speech of the mover of the amendment, but I have listened to the impassioned speeches that have followed. I wish to say a few words about the subject, and I feel all the freer to speak because I have not heard used that claptrap argument which is frequently employed in such matters : that the lawyers are trying to keep these affairs in the courts for their own pecuniary benefit. It is not, as the last speaker seems to suppose, out of any want of confidence in ourselves, or in our honesty, that it is proposed to submit cases of disputed election returns to the court. It is a mistake also to say that this House is the highest court of the realm: It is not a court at all, except in the sense that it is a court of policy. It is the highest court in the realm foi” purposes of dictating the policy of the country ; but when once you have- made your law, this House is by no means a fit body to decide what is the effect of that law.
– Is not the maker of the law greater than the interpreter of it ?
– The maker of the law may be as great as you like, but that is not the question. The question we have to decide is whether this House is a fit court to decide upon the operation of the law when Parliament has made it. A big responsibility is imposed upon us in the making of the law, and “when once it is made we must abide by the result. I conceive that there could not be for the purpose of determining upon election petitions a more unfit body than is this House, and I say it with the deepest respect for my fellow members. I say it upon the broad principle that no person is fit to be a judge in his own cause.
– This is not a case of a man being a judge in his own cause.
– I beg the honorable member’s pardon. I say that when there is a case of a disputed election, and the question is - “ Shall we have a man in who will vote against us, or a man who will vote for us?” that is our own cause. I admit that the honorable member for South Australia, Mr. V. L. Solomon, is quite right in saying that if four or five honorable members chosen from one side of the House, were constituted a court of disputed returns, there would be a great chance of justice being done, because they would not feel that the court was composed of two bodies, one pitted against the other. But what generally happens in these cases, where the committee is composed of members chosen from both sides of the House, is that each side watches the other like a cat watching a mouse. Suppose a man upon the black side - I will not say which side is the black side ! - fancies that he sees the slightest trace of partiality upon the part of one man upon the other side, he immediately says - “This is not good enough ; I will throw in the weight of my vote with my own side.” The fact is, that it is an unbearable position to have such disputes settled by a committee of Parliament. I can recollect when I was a child being interested in disputed elections as they were then tried in connexion with the House of Commons. I recollect that there were the greatest scandals. After nearly every disputed election, the liberals voted in one way and the conservatives in the other, no matter what the merits of the case, until it became such a scandal that in 1868 an Act was passed remitting election petitions to the Judges. The practice then adopted in England was very much the practice which is now proposed. A petition respecting the validity of an election or return ‘is addressed direct to the court, without being referred to the court by Parliament. When the court has come to a decision its report is sent to the
Speaker. I find that in Canada, too, election petitions are decided by the ordinary courts of the realm. In the United States, Congress cannot give this power to the courts, because the Constitution says that the Houses shall judge of matters affecting their own election.
– They could alter the Constitution.
– Practically, they cannot. Except for the alterations made immediately after the Civil War, the Constitution of the United States has not been altered during the last 100 years.
– There have been fifteen alterations.
– The first ten altera, tions were incidental to the carrying of the Constitution. The Constitution was adopted upon the faith of the promise that they would be carried. The remaining amendments were made immediately after the Civil War, and as a result of it. The reason why in America they do not change the law in regard to disputed elections is that they cannot.
– It may be that they are satisfied with the existing system 1
– I have read articles by distinguished senators and others in which the view is expressed that it would be better if these matters were decided by the court. The tendency of recent legislation in the most advanced nations has been to remit these matters to a cool and .impartial, tribunal, rather than leave them to the decision of men who are keenly interested in the result. I would not allow a mother to judge as to the qualifications of her son, or a lawyer to decide what amount he should be paid for certain work. Neither would I leave it to the members of a House of Parliament to say whether a new member, the validity of whose return was disputed, should be allowed to sit. I would trust Parliament with any matter coming within its own province, but this is a function which does not belong to Parliament. Where the two parties in a House are almost evenly balanced, the decision of an election petition may determine what policy shall be adopted by the nation, and what” Government shall administer it. I think that honorable members will credit me with a desire to honestly state my belief in regard to the expense of the proposed arrangement. In ray opinion the present system is more expensive than the proposed arrangement would be. A parliamentary committee is very much likean arbitration board. Although arbitrators are anxious to do justice, they are not so expert in sifting irrelevant from relevant evidence as is a trained Judge, and their proceedings are, therefore, much longer than those of a court. A strong Judge can stop irrelevant and useless evidence. I have known proceedings which before a Judge would not occupy more than two or three hours take weeks before arbitrators.
– And I have known evidence to be stopped which should not have been stopped, and a man to be deprived of his seat in consequence.
Mr.HIGGINS. - Mistakes are made everywhere, and it is possible that there is a tendency on the part of courts to exclude evidence.But I would like to point out that it is a protection to minorities to allow cases affecting elections to be sent to the law courts. Last year a labour member in the Victorian Parliament was accused of publishing a seditious article -a stupid article, copied from one which was published at Home, and which should not have been reprinted.
– Does the honorable and learned memberthink it right to refer to that case, seeing that it has no present application?
-I am not going further than to say that the member in question was judged by a House the majority of whose members were his political opponents.
– Would he at the time have received any better terms from a jury ?
– The Bill provides that election petitions are to be tried by a J udge, and there is far more chance of justice being obtained by a minority from a Judge, where the J udges from long habit deal with the questions which arise before them almost wholly as an intellectual exercise, as if there were no flesh or blood about them, than from an interested body.
– The history of the old country doesnot bear out that opinion. There has been no tyranny but has had a Judge to justify it.
– Except in one or two cases which the honorable member may have in his mind, the court of disputed returns has been a success in England. The House of Commons would not now go back to the old practice, even if asked to do so. There were certain instructive features in Mr. Hartnoll’s case which I think should aid the committee in coming to a decision upon this matter. A technical informality was committed by Mr. Hartnoll, which, it was admitted by all, did not warrant the giving of the seat to the other candidate ; but there was a painful discussion upon the question whether the right honorable member for Tasmania, Sir Edward Braddon who was a member of the committee, should sit upon the case. He decided to sit, and fortunately the facts were so clear that there was no doubt about the absolute justice of awarding the seat to Mr. Hartnoll. Had the case been referred to a court, the Judges would not have been bound to deprive Mr. Hartnoll of his seat because of a technical informality, because clause 204 provides that -
The court shall be guidedby the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
The danger in regard to trials by law courts is that the Judges are too apt to decide matters barelyas an intellectual exercise, and to have too great a regard to technical defects. The clause which I have read, and which I should like to see amplified in some respects, will enable the court to say - “ We are to be guided not by the actual rule as to what must be done, but by whether any substantial injustice has been caused by the irregularity. If no substantial injustice has been done, we shall let matters stand as they are.” With a provision of that kind, I think there is no danger in referring these matters to the courts.I hope that honorable members will not be influenced by the contention that to remit election petitions to a court is to cast a reflection upon ourselves. I confess that there are certain subjects upon which I would not trust myself to give judgment, and every honorable member must admit that there are subjects upon which he would not feel himself free to decide. It is not a fit thing that Parliament should be called upon to decide a question in regard to which political feeling is very high, and about which political parties are very keen; and it is no disrespect to ourselves to say so. I feel strongly that the arrangement is one which protects minorities. In the Victorian case to which I referred, a member who was in a minority was tried for the publication of matter which technically, in the legal sense, was clearly not seditious. Still we had two parties in the House opposed to him, who decided almost unanimously that it was seditious. It certainly was to me a “ facer “ to reflect that such a thing could come to pass. There is no doubt that the House has the power of expelling its own members for cause shown.
– But he would have had no redress under a proposal of this sort; and where, therefore, is the point ?
– I am sorry the honorable member cannot see the relevancy of my remarks, but he is not usually so dull. What I wish to suggest is that there are matters upon which this House is not a safe judge, and honorable members should recognise that they are not sound judges upon these subjects. I am taking up the challenge of the honorable member for South Australia in the matter, and I say that, above all, those who feel that they belong to a minority ought to be very careful before they give to the majority a power over their existence as members. I say it is far better to leave such a matter to an outside court. I can assure honorable members that the expense connected with these cases will be greater if they are tried before a parliamentary committee. I can ask any one who has had any experience of the work of parliamentary committees whether that is not the case. The man in London who vised to make the very biggest income ever known to be made at the bar in England was a man who practised only before parliamentary committees.
– The Parliament in Great Britain is a purely capitalistic institution.
– There is no doubt a vast difference between the House of Commons and its qualifications and the Parliament here ; but, admitting that, is that any reason why this matter should be left to the courts in England, and should not be left to the courts in Australia?
– The honorable and learned member for Northern Melbourne has gone as much out of his way to distrust this House as did the honorable member for Tasmania to distrust the Supreme Court bench. The honorable and learned member apparently cannot trust this House at all, and the honorable member for Tasmania cannot trust the Supreme Court bench. In an experience of seven or eight years in the State Parliament of New South
Wales, I can remember no case in which an injustice was done to any individual in this matter. I ask the Minister for Home Affairs whether in his experience, extending over a period double as long as mine, he can recollect one case in which a man was treated unjustly.
– Many of them.
– Then let us have them stated. It is all very well to speak of the failure of a system, but let us have some proofs of its failure ! It is of no use to say that no man should be a judge in his own case. It is not a J udge but a jury we speak of. And what are we? Weare a jury, not a Judge. The facts are put before the parliamentary committee, and the committee decides upon them. It is not our own case at all. The honorable and learned member seems to look upon the matter as something which has to do with a man who sits in this House, but it may have to do with a man who is outside this Chamber, and of whom we know nothing ; and we are as little likely to be prejudiced in his favour as against him. There is no reason that I can see why we should depart from this system. I should be quite willing to submit my case to the Supreme Court bench, believing that a Judge would do me quite as much justice in such a matter as if I were on trial for my life, for my civil liberty, or as if my property were in danger. The suggestion of the honorable member for Tasmania that we cannot rely upon the Supreme Court bench in this matter is to suppose that the loss of a seat is more to a man than the loss of his life or of his liberty, and on the face of it that is absurd. For my part, I say that the Supreme Court and Parliament are absolutely reliable tribunals. It is not a question of reliability : it is a question as to which is most convenient, and is, on the whole, the best. That there are certain drawbacks to a political tribunal no one can deny. The honorable and learned member for Northern Melbourne said that any one who has had experience of the workof parliamentary committees will not be able to find anything to say in their favour. But I have known parliamentary committees to work very enthusiastically and thoroughly, without reward or hope of reward in any shape or form, and to do justice to the best of their ability. The only question to my mind is as to what tribunal is most likely to do justice. It is not at all a question of intention, because a man may have the best of intentions, and yet fall far short of doing justice. We require the tribunal best able to sift evidence, and give a proper verdict upon the evidence. My right honorable friend, Sir Edward Braddon, says that in one case a man was mulct to the extent of some £1,500 in costs. If this system of appeal to the Supreme Court carries with it such a possibility as that, it is condemned in my eyes. In the event of the committee deciding upon this method, perhaps the Minister will consider whether it would not be possible to restrict the costs in an appeal to the court. If we are to contemplate the possibility of a man paying £1,500 to obtain a seat, it would probably be very much better for him to lose it. If I were informed that I could only retain my seat bypaying £1,500, and if any man cared to give me £1,000 for it, I am sure he could have it. We require to make this tribunal cheaper if it is the best.For my part I do not admit that it is the best. As I have said, I remember no case in the New South Wales Parliament in which an injustice was done, though I remember many petitions of the kind. I remember one case in which a colleague of the Minister for Home Affairs, a man brimming over with bias and prejudice, was a member of an elections and qualifications committee, and yet, in spite of all the vehement declamations of that gentleman outside the Chamber as to what he would do to this unfortunate candidate, as a matterof solid fact, it was by his casting vote that justice was done to that particular candidate in opposition to the interests of his own party. That is one of the mysteries that hover round the operations of the elections and qualifications tribunal of New South Wales. Leta man be as partizan as he may be on the floor of the Chamber, I believe, honestly, that when he is clothed with responsibility as a member of a parliamentary committee he will put aside bias and will do his very best to secure justice. The only point I have to consider is whether he can succeed so fully as to administer even-handed justice. Can he divest himself of the qualities of a partisan, and become seized with those of a judge? I have an open mind on the question. I do not know whether he can or not. I should be prepared to vote for either of these schemes which can be shown to me to be the best. I know of no case in which the practice in New South Wales failed to do justice, and if the scheme here proposed carries with it the possibility of great cost, that may practically ruin an unfortunate appellant, I say that that risk should never be incurred. I would vote that the cost should be borne by the State rather than that that should happen. I point out to honorable members that if what iscomplained of is illegal, a candidate will lose his seat by the fact of his being prosecuted for the illegality. Therewill be no question about it. Having been prosecuted and convicted of an illegality under the Act, the question of an appeal as to whether or not he is rightly in possession of the seat would go by the board. He could hot say before the Supreme Court that he had not contravened the act, because there would be the conviction. If the adoption of this system involved excessive cost there might be some attempt made to restrict costs on an appeal to the court, but, I admit, on the face of it, that that is rather a hopeless task.
– The honorable and learned member for Indi nodded just as emphatically in the other way, and from what I know of the courts I am very much afraid that he is right, and that the honorable and learned member for Corio is wrong. If the feeling of the committee is in favour of the adoption of this scheme, I should certainly say that, if we cannot restrict the costs, we should provide that the State should make itself responsible for all costs over and above a certain fixed and moderate sum.
SirJ OHN QUICK (Bendigo). - I do not think the time has arrived in the history of the Commonwealth when the Federal Parliamentshould surrenderthe power vested initbytheConstitution to deal with questions of this kind. Reference has been made by the honorable and learned member for Northern Melbourne to the House of Commons. It may be that during the very worst periods of English history the power vested in the House of Commons to which reference has been made was grossly abused, and led to the legislation referred to. Owing to very corrupt influences of party government in the House of Commons, no doubt that power was abused, and it was subsequently taken away. . But what has the Parliament of the Commonwealth done that it should be deprived of this power? There is no parallel whatever between the House of Commons of Great Britain and the House of Representatives of United Australia. This House is constituted in a manner entirely different- from the House of Commons. In this early period of its history, when it has done nothing to forfeit its right and the confidence reposed in it by the Constitution. I fail to see why any action should be taken in the direction suggested. This House is constituted differently from the House of Commons, or the Parliament of New South Wales, or that of Victoria. It is constituted of men coming from all parts of Australia ; from States in which different interests and different views prevail. We come here and meet one another, and separate again and go to our respective homes. We are in a different atmosphere altogether, different associations, and different environment from those of any parliament located in a particular State. A Parliament constituted as this is, of men representing different communities and different interests, presents a panel for a jury the like of which cannot be excelled iti any part of the world. We have a panel here from which may be selected an entirely disinterested and impartial jury - a jury entirely uninfluenced in the matter by personal bias - and personal bias is a much more serious matter to guard against than is political bias. As regards personal bias I say that this House, or the Senate, as a field for the selection of a jury, is unequalled in the material it presents. The House has done nothing to forfeit that power, and no cause for complaint has arisen in connexion with the first few oases dealt with by this Parliament. We have to consider the efficiency and fairness of the proposed tribunal, and the expense incidental to the determination of disputes. The court will be called upon to deal mainly with questions of fact. As a matter of practice, very few questions of law arise, and the proposed tribunal is not to decide according to the law, but according to the substantial merits of the case and good conscience. Therefore, a select committee appointed by this House would be as competent to decide questions of fact as would the most learned Supreme Court Judge- Its hands would not be tied by any legal technicalities. It would be as well able to deal with the questions of the validity of returns, and to arrive at a determination as speedily as any Judge, however learned. There would be no delay, because the committee would meet immediately after the House assembled, and would sit on from day to day during the sittings of the House until a decision had been arrived at. On the- other hand, if a case were once referred to the High Court, or to any of the Supreme Courts, a rush of business might interfere with a speedy decision.
– Twelve months elapse in Western Australia sometimes.
– That might be the case under the provisions of this Bill. No provision is made for arriving- at a speedy determination. A committee whose sole function it would be to deal with these disputes would sit from day to day, and the House would take care that the committee did. its work, whereas there would be nothing whatever to force a Supreme Court or the High Court of Australia to arrive at an immediate determination. From the point of view of efficiency and fairness, therefore, I consider that this House, as at present constituted, is just as competent to deal with, disputed returns- as is any Supreme Court in the world. With regard to expense, reference has been, made to the heavy costs in the case of the petition lodged by Mr. Whitelaw against the return of the honorable member for Tasmania, Mr. Hartnoll. I am startled to hear that a bill of such magnitude was rendered, but I do not wish to express my opinion, or to prejudice any legal action that may be taken. Mi-. Whitelaw has his remedy against his legal advisers if they have made an excessive charge, because their bill of costs maybe taxed. We might provide for a scale of costs and fees in connexion with these disputes, and thus prevent excessive charges. I agree with the honorable member for South Australia, Mr. V. L. Solomon, that it would be infinitely preferable to have an election dispute decided- by a committee of this House than by a court composed of a single Judge. This Bill vests the power of decision, not in the full court of three judges, but in one judges and that is too much authority to- give to any single man. Clause 206 provides that all decisions of the court shall be final, and shall not be- questioned. I should prefer to have my case decided by a committee of this House, however selected, instead of by a justice of the Supreme Court, however exalted or learned he might be. So far as political bias is concerned, even Judges are human. On the Supreme Court bench of the United States, which frequently has to review questions affecting the legality or constitutionality of legislation passed by Congress, there are judges who hold, pronounced political opinions as democrats or republicans. It is absurd to suppose that they can divest themselves absolutely of their political opinions, even though they may become mere intellectual machines of the kind described by the honorable and learned member for Northern Melbourne. Although the judges may attain to a sublime degree of intellectuality, they cannot altogether free themselves- from unconscious bias, any more than could any honorable member of this House. I do not suppose that any honorable member would wilfully allow a feeling, of bias to influence him while acting, as a member of a committee of disputed returns. He might have an unconscious bias, but so would a Supreme Court judge in dealing with the case of a well-known politician. The Court will be empowered to determine questions of fact, not by inflexible cast-iron legal principles, but according to the substantial merits of the case and good conscience. Therefore the decision will depend upon the personal equation of those constituting the court, and a number of honorable members selected from this House would be just as likely, as would the most learned Judge in the world, to do substantial justice, according to good conscience. Whilst admitting that the tendency of public writers of the present day is to favour legislation such as that now proposed, I deny that there is any ground for carrying that idea into effect, so far as this Parliament is concerned.
– I listened with a great deal of interest to the speech of the honorable and learned member for Northern Melbourne, who is always instructive, but I was unable to agree with his arguments, because I could not accept his view that a committee formed of members of this House would necessarily be biased and partisan. Whilst honorable members might be ready enough to steal a march upon their opponents in political tactics, I have no hesitation in saying that I should be prepared to allow my bitterest opponent to choose his own committee from members of this House, and would go before. such a tribunal with perfect confidence that substantial justice would be done. So far from having any fear that any honorable members would depart from a true conception of justice in deciding matters of this kind, I can quite imagine some honorable members erring in favour of their political opponents, in. their anxiety to escape from what they might believe to be their unconscious bias. If such a possibility is admitted, those who favour the appointment of a committee of this House to deal with disputed returns are furnished with a very strong argument. The honorable and learned member for Northern Melbourne urged that the Judges adopted a severely intellectual view of the questions submitted for their decision. I interjected at the time, and I now repeat, that throughout the history of Great Britain there has been no tyranny without a Judge to justify it. Not very long ago a decision was given in Great Britain with regard to the responsibilities of Trades Unionists, which has been very generally recognised as something very nearly approaching a travesty of Justice. The honorable and learned member admitted that there was a tendency on the part of Judges to indulge in too many technicalities,, and that therefore the provision in clause 204 was necessary. The mere presence of such a provision is an indication to us that in trying to avoid one danger we shall very likely encounter another. A committee such as the honorable member for Coolgardie suggests would meet all requirements. A J udge might be appointed as chairman, and be empowered to give a- casting vote in the event of the members of the committee being equally divided. Some technicalities might arise to which the ordinary Member of Parliament would not be able to give sufficient consideration,, and perhaps it would be as well to provide for at least one judicial mind upon the committee. I agree with the honorable and learned member for Bendigo that we could easily provide for a special scale of charges in connexion with the hearing of election petitions, and thus restrict the expenses to a very modest sum. If the Government proposal be carried, I can easily imagine certain press organs, which for some time past have been deliberately attempting to belittle parliamentary institutions and politicians, using this as an excellent point to their contention that Parliament is. composed of men. who ought almost to be despised by the general public.
– The honorable member does not agree with .that position.
– No. But only last week in this city an article appeared in a weekly publication which is issued from the office of one of the metropolitan newspapers, and which, to my mind, constituted one of the most scurrilous and contemptible attacks upon parliamentary institutions and politicians that I have ever read. If we prove to the people of the Commonwealth that we are unable to trust ourselves in matters of simple justice, we shall be giving to those press organs, which fain would rule the Commonwealth in lieu of its Parliament, a very powerful weapon with which to lash our backs. I hope that the common sense of this committee will be sufficiently strong to carry a proposal to leave the settlement of what, after all, is an ordinary matter of understanding and simple justice, to the members of the House of Legislature concerned.
– I was very much affected by the speech delivered by the right honorable member for Tasmania, Sir Edward Braddon, to whom, as an old parliamentary hand, I was justified in paying considerable attention. He mentioned certain disputed parliamentary elections with which he was acquainted, but the instances in question comprised rather ancient history. I was surprised to find that, in its original form, the Constitution Bill, as passed by the Adelaide convention, provided that the Senate and the House of Representatives should decide disputed elections relating to their respective houses. I was still further surprised to discover that the right honorable member for Tasmania, who has been talking so much against degrading parliament by relegating the settlement of such questions to outside bodies, when speaking in the Adelaide Convention, is reported to have said -
It is almost essential to my mind that these questions, more especially the question of disputed returns, should be determined by the Supreme Court and not by the Senate.
– I have since had practical experience of the courts.
– The right honorable member continued -
We have found out from practical experience the necessity of malting this change, and submitting these questions to the Supreme Court, and I hope that in making this great and high departure, and forming a .Federal Parliament, we shall not run into any errors which will necessitate any changes whatever in the early stages of our Federal Government. I shall move “ that the words ‘ High Court’ be substituted for Senate.’”
I also find that, on the 22nd April, 1897, the right honorable member said -
I will ask Mr. Barton why, in the case of elections to the Senate, the dispute shall not be heard by the Supreme Court of the State where the ease arises.
I am quite ready to accept the former opinion of the right honorable member, as against that which he now entertains ; then he was the adviser of a continent ; now he is the acting leader of the Opposition and is trying to oppose all Government proposals. On the general question, however, I should like to quote the views of men who, in parliamentary matters, are sometimes accepted as leaders, and who have had a large experience in connexion with electioneering affairs - I refer to the leader of the Opposition and to Mr. B. R. Wise. Mr. Reid, in speaking at the Adelaide Convention, said -
It might happen that some great struggle might be determined in the Senate of 3(i members, according to the decision of a political committee, as to whether a certain return was valid or not. I think the time has come when we should alter this clause. I am perfectly sure, that if it is left to the Federal Parliament, that Parliament will never do it.
– It is done in England.
– But how long did it take ? We all know how many years it took - an enormous time, and an enormous struggle - before the power was taken out of the hands of Pu7-liament. I)o we not remember the tremendous scandals which disfigured the election tribunals of England when they were within the power of the House of Commons ? I really think that I ought to test the opinion of the committee upon this matter.
Mr. Wise, in discussing the same question, spoke as follows - “
I entirely concur with what has fallen from my honorable friend, Mr. Reid, with regard to the power of the Elections and Qualifications Committee to deal with disputed returns. I have had the advantage of appearing before that body in every capacity. I have been there as counsel, I have been there as member, and I have been there as the accused party, and I do not know in which capacity I found them the least satisfactory.
Prior to the assembling of the Sydney Convention, the draft Constitution Bill agreed to at the Adelaide Convention had been submitted to the various State Parliaments, and I find that amongst the amendments suggested was one by the Tasmanian Parliament, which was no doubt moved by its Premier and leader, the present acting leader of the Opposition-
– I was absent in England.
-But the right honorable gentleman was Premier when the Tasmanian Parliament made the suggestion. At any rate, Tasmania was represented in the Sydney Convention by its present Premier, Mr. Lewis, who, in speaking on that occasion, said -
The Parliament of Tasmania considered it desirable that it should be determinedby the House to which the election related, and that after the Federal High Court was established, the court should deal with disputed elections. I think that in all the colonies except New South Wales disputed elections are tried by the Supreme Court. I think the Federal Parliament will undoubtedly enact, as soon as possible, that disputed elections relating to either House of that Parliament should be decided by the Federal Supreme Court.
His view was supported by the Honorables Sir Philip Fysh and N. J. Brown, of Tasmania. The acting leader of the Opposition referred to the fact that I have not had a very long Parliamentary experience. That is so, but at least my actions during that limited experience have been consistent. Having the opinions of gentlemen like the leader and acting leader of the Opposition, Mr. B. R. Wise, and others, when they were acting for the State and not for a party, before me, I cannot do better than follow them by voting in favour of the clause as it stands.
– I cannot wonder at an honorable member with the fixed opinions of the last speaker complaining that another honorable member should, in the light of increased knowledge, see fit to alter his views. I myself was once of opinion that disputed elections should not be decided by a Parliamentary tribunal, but by an outside court. It is only observation of the working of the two systems which now leads me to prefer the settlement of disputes by Parliament, until it is found that there are scandals which can be remedied, by remitting such disputes to the High Court. Does any honorable member contend, as a matter of argument, that a member of this Chamber, or of this Parliament, cannot sink his party feelings when occupying a judicial position? I hold that the great majority can, and any one desiring to prove the contrary can only achieve his object by illustrating scandals so patent and so frequent as to lead us to abandon Parliamentary decision in such cases, and seek another tribunal. I repeat that I favoured the remission of these disputes to a non-Parliamentary tribunal, until I visited England, some time after a general election. There I saw the operation of that system. The honorable and learned member for Northern Melbourne has stated that the existence of scandals caused the British Parliament to alter its previous system. If that be so, I say that scandals ought to induce it to alter the present system. The expenditure necessary there to dispute an election, or to defend a disputed election, practically puts all men of moderate means out of court, unless they have an association behind them to supply the requisite money. Two or three of the leading counsel of Great Britain are usually employed by one of the parties to such disputes, and naturally the single counsel engaged on the other side demands further assistance wherewith to meet this galaxy of talent. The desire to secure a victory, or to obtain justice, induces the party concerned to strain every nerve to provide the. extra counsel sought. I happened to be acquainted with a legal gentleman who was connected with one of these cases, of which there are scores, and I asked him what the costs were likely to. be in that particular instance. His reply was-“ About £5,000.” That case was by no means the most expensive one. Subsequently I entered the New South Wales Parliament, and after observing the operation of the Parliamentary tribunal there, I began to consider whether anything had occurred in connexion with that Parliament which would justify the adoption of the system now operating in Great Britain. Looking at the matter in that light, I have never been able to say that there has been any such justification. The Minister has had a much longer experience of parliamentary life than I have, and I ask him whether, during his 20 years’ political life, there have been cases in which the present system has operated unjustly to any one. What I do know, after watching the proceedings very closely, is that in a great many of these appeals in New South Wales, members of the committee have voted against men belonging to their own party. There may be injustice done, but the cases are not more numerous, even in regard to erroneous decisions, than may occur before a legal tribunal, and there is, at any rate, freedomfrom the great objection that a man, through not having at his back somebody able to provide the funds,may suffer grievously rather than go to court.
– Is there not also the advantage that the committee is subject to the criticism of the House?
-There is also that advantage. Tome,atanyrate, there are objections to theEnglish system on the grounds of difficulties and expense.
– And delay.
– And the delay is a very important consideration. The honorable and learned member forCorio has quoted the honorablememberforEast Sydney assaying at the Federal Convention that, in a keenstruggle,a committee might be affected by the fact that their decision meant a vote. But the struggle goes on outside Parliament in Great Britain, and also affects votes. The system there affects not one vote, but may be half-a-dozen or a dozen, and continues to affect them during twelve or eighteen monthswhich may elapse before a Court decision is given. If we want our High Court to be prompt,wemust pass an additional clause providing that these cases shall take precedence ofall others ; otherwise, they must take their turn amongst the multitudinous affairsof a new Common- wealth. If justice is done in theSupreme Court the question is, when will it be. done, and how much will it cost ?Ifrankly admit I have changed my opinion, having formerly been in favour of remitting these cases to the court.
– On what ground was the honorable member formerly in favour of that system?
– I was then outside Parliament, and. came to my conclusion from a consideration of the outside aspect of the question. I thought it peculiar that bodies so largely interested should try these cases. I did not know that any injustice was done, but I always looked on the decisions with some doubt. Before I got into Parliament my confidence in a legal tribunalwas shocked by the effects of the British system. After I got into Parliament I asked myself whether I could, by observation, see such grievous wrongs under the committee method- the cost of which was as nothing as compared with that of the law court system - as to make me favour the latter with all its faults. I could not answer the question in the affirmative, and I havef ailed yet to be able to so answer. There may be cases in which the decisions are not just, but they have not been so numerous as to constitute a scandal. For these reasons I must support the amendment of the honorable member for Coolgardie. In the interests of fair play to those who cannot afford, or have not behind them organizations which can afford, the heavy expenditure necessary in the High Court, it is desirable to continue our own tribunal.
– Does it follow that there will not be legal costs incurred before a parliamentary committee ?
– No; but there is not the sameNecessityforlegal costs before our own tribunal, which decides by its conscience, as’ there is before a legal tribunal, the very forms ofwhich almost require the services of a barrister.
– In one case in Victoria it cost a candidate £2,000 before a parliamentary committee.
– That is very rightly mentioned as an illustration ; but after a general election in England there is case after case extending over a long period, each costing thousands of pounds.
-That is on a different scale. In Victoria there have been numerous cases which cost hundreds of pounds, and other caseswhich cost £2,000 or £3,000.
– Where there is a strong defence or a strong attack a man cannot go into the courts without spending a lotofmoney; but there is no occasion before a tribunal of this Chamber for the employmentof legal talent. As to knowledge of election law and practice, Members of Parliament usually know a. great deal more of them than does anyJ udge; and until we see that our own tribunal is failing us in the matter of justice and equity, we ought to continue it, rather than invoke the very expensive machinery of the High Court.
– The honorable member forNorth Sydney has spoken with his usual force and ability; but he does not seem to havegiven any very weighty reason for his change of views. As I understand,his only reason is that in. England the court has proved very costly. It may surprise the honorable member to learn, if he does not already know, that the heavy costs incurred before the old Elections and Qualifications Committee supplied the chief reason for the House of Commons handing over the decision of these questions to a law court, another reason being the scandals which had arisen. I am amazed tohear honorable members say that theyhave never heard of cases, or rumours of cases, -in which members ofan Elections and Qualifications Committeehave given decisions in accordance with their political views.
-That is not quite the allegation; what is said is that there have never been eases in which substantial justice has not been done.
Mr.WINTER COOKE. - I did not understand that to be the argument. The public have alwaystaken the view that anElections and Qualifications Committee formed a tribunal that could not do justice - that the members of thecommitteewere notoriously partisan. It may be the fact that substantial justice has always been done, but the people outside have always considered that a parliamentary committee was influenced by considerable bias. It has been urged that some honorable members of the House, whose delicacy of feeling is very finely strung, would probably rather vote for their politicalenemythan otherwise.Surely that is a strongargument why this House should not decide such questions ?
– I do not say that honorable members would do that, but they might be inclined to.
– Butif honorablemembers arelikely to be actuated by such feelings, that is a strong reason why another tribunal should be provided. I hope the committee will follow the lines adopted by the House of Commons. If the present system in England had been found excessively expensive, doubtless some honorable member of the House of Commons would have taken action, but we find not a whisper of discontent. As to our being a new Parliament, it is better to act on the precedent of an old Parliament rather than incur the risk of scandals. I shall vote for the retention of the clause.
Mr. L. E. GROOM (Darling Downs).I intend to support the provisions of this Bill for the purpose of having election petitions tried by a court. My reason is that I do not think that this House is in any sense fitted to be a judicial body. In out Constitution a distinction, which we should strictly observe, is drawn between judicial and legislative functions ; and if the House is to try election petitions, it must assume to itself functions which are strictly judicial. Another reason why I think we should have a court constituted as provided for in the Bill - with certain modifications which I will afterwards mention - is that this court is to try election petitions for the whole of Australia. Honorable members must not forget that if these petitions were tried by an elections and qualifications committee, it would be absolutely necessary to have all the witnesses brought to Melbourne, or wherever the seat of government might be, for the purpose of having the matter adjudicated upon. This would be especially inconvenient and expensive in the case of such States as Western Australia and Queensland. It is not an uncommon thing, when there is a big election petition to be tried, for there to be 30 or 40 witnesses. I can mention a case where there were between 40 and 50 witnesses. It would be impossible to bring so great a number of witnesses from the remotest parts of Australia to the seat of government for the purpose of examining them. Such a thing would not be necessary in the case of a court of disputed returns, as provided for in the Bill, because the measure enables arrangements to be made for relegating the issue to be tried to the State courts. The provision to which I allude enables an application to be made for what is poetically known as a change of venue, so that the case may be heard where the witnesses reside.
– Not after the High Court is established ?
– Yes, that can be done under the Bill. And even when we have a High Court, it is to be hoped that we shall not have that body carrying on its functions only at the seat of government. If it is to be an Australian court, administering Australian law, I hope that it will be available to sit in States like Queensland and Western Australia, or, at any rate, that those States will be entitled to have a judge sitting within their borders to hear such matters as election petitions.
– What is to prevent an elections and qualifications committee doing the same thing ?
– According to the practice of the House of Commons, which has been adopted here, an elections and qualifications committee can sit only while the House itself is in session.
– We can alter that practice by Act of Parliament.
– I do not think that in the case of election petitions honorable members would desire that matters should stand over during a whole session, so that during the recess the committee might sit and adjudicate in some remote portion of Australia. The scheme of the Bill is much simpler and better, namely, that if, for instance, an election petition
Case arises in Herbert, which is the most remote constituency in Queensland, it will be quite possible for a Judge of the Supreme Court to sit at Townsville and hear it. That would mean a great saving of expense, and would meet the convenience of the parties.
– Suppose Parliament werenot sitting, and there was a decision of the court-what would happen?
– In England, I believe, express power is given to the court to sit. The same point also came up in Queensland.
– What would happen if the court declared the election to be void, and Parliament was not sitting ?
– I think that, in delegating this matter to the court, Parliament would give the court the power to sit continuously. It is the English practice that a committee of the House cannot sit after the prorogation. There is a case where the hearing of an election petition started during the sitting of the House and then the prorogation took place. At the beginning of the next session of Parliament it was necessary to elect another committee and start the trial de novo. I think it is much more advisable that we should take this matter of hearing election petitions completely Out of the control of Parliament, and allow the court to exercise what is really a judicial function. I would point out, however, that in the Bill itself an anomaly exists. It also exists in Great Britain. Under section 47 of the constitution it is provided that -
Until the Parliament otherwise provides any question respecting the qualification of a senator or a member of the House of Representatives or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined.by the House in which the question arises.
Under this Bill we are not delegating to the court the power to decide every case in which a question of disqualification or vacancy arises. We transfer to the court only the power to inquire into and adjudicate upon disputed election returns. That is to say, if an election is held, and its validity is disputed, the court has power to inquire into and adjudicate upon the petition. But let me put this case. Suppose a man holds an office of profit under the Crown, that being a ground disqualification. If he held the office of profit under the Crown at the time of his election, the matter would be one into which the court of disputed returns would have power to inquire. The court would decide whether the office held by the member elected was an office of profit under the Crown, and if they found that it was such an office his seat would be declared void. But if we pass the Bill as it stands it will have this peculiar effect - that supposing a member has been elected for twelve months, and then accepts an office of profit under the Crown, the tribunal to decide the case will not be the court of disputed returns, but a committee of the House itself, to which the function of inquiry will be delegated. It seems to me to be an unsatisfactory thing that we should have two tribunals to try practically the same question. In Queensland we had an election petition presented on the ground that the respondent held positions upon one of the rabbit boards and upon a stock board. The ground alleged against the respondent was that those were offices of profit under the Crown. The case came before the elections tribunal, which decided that the respondent held an office of profit, and the seat was avoided. But if a person were to accept an office like that during the currency of his tenure of a seat in this House, the court of disputed returns could not try the case, and it would have to go before a committee of this House.
– Would not the rules of the State service prevent an occurrence of that kind?
– In Queensland certain boards were constituted, and the question was whether a person who held a seat upon one of those boards held an office of profit under the Crown. Under this Bill the Court would have no power to try a case of that kind. The same rule applies in England, as is set out in May’s Parliamentary Practice. Notwithstanding the existence of a court in England for the purpose of trying disputed elections, questions concerning disqualifications are still tried by select committees of the House of Commons. If we are to have a court for the purpose of trying matters of this kind, it is highly unsatisfactory that, where a member has accepted an office of profit under the Crown, and his light to continue to sit is disputed, the case should not be tried by the same tribunal as is appointed to try election petitions. Disputes might also arise where members had entered into contracts with the Crown. A case of that kind has arisen in Queensland. It was alleged against a Member of Parliament that he had entered into a contract with the Crown, and, notwithstanding his contention that the contract was really held by his wife, the court decided that, although as . a matter of form it was held by his wife, it was, in substance, held by the member ; and his seat was avoided. That case necessitated the calling of witnesses, and the finding by the court upon a great many questions of fact as well as of law. If a member, during the time he is in Parliament, enters into a contract with the Crown, there must be matters of fact as well as of law to be decided. Those matters of fact involve the calling of witnesses, the weighing of evidence, and the giving of a judicial decision ; and if we are to have such matters tried by a committee of this House, whilst election petitions are tried by the court, it will bea very unsatisfactory position. What we have done in this Bill is to provide a half-way house. One of the strong reasons why I support the Bill is that we can do justice to the people of this country only by having the Judges sent to the most remote constituencies, in order that the matters in dispute may be tried there. In a case where there are a great number of witnesses to be examined, how can a man bring those witnesses from a remote constituency down to Melbourne, or wherever the seat of government may be, in order that his case may be adjudicated upon? I know of a case where as many as ten or twelve witnesses were called to testify as to one vote.
– Where was that case heard 1
– The case was heard in Brisbane. It concerned the Warrego election. Warrego is 400 or 500 miles from Brisbane.
– Then the expense was not avoided in that case.
– It is true that there must be some expense in matters ofthis kind, but there is a great difference between bringing witnesses 400 or 500 miles to, say, Brisbane, and bringing them all the way from a constituency in the north of Queensland to Melbourne. If the tribunal to be constituted is to try Australian questions, it should be made available throughout the whole of the Commonwealth, so that in every part of Australia justice may be done.
– Justice depends upon the purse.
– In some instances the expenditure of money may be necessary. Notwithstanding what has been said, I believe that England and Australia alike have reason to be proud of their judiciary.
– And of their Parliaments too.
– And of their Parliaments also. But I do not believe that a Parliament is a proper tribunal to decide these questions. Our own Parliament -has been in existence a few months. We have every reason to be proud of it, notwithstanding the aspersions which are from time to time cast upon us. But although I am a member of this House, and am proud of it, I say that the House, as constituted, is purely a legislative body. It is constituted for the purpose of making laws, and I do not think that it is a proper body to constitute a court. In the first place, the members of .this House generally are not accustomed to weigh evidence ; they are not accustomed to discriminate between relevant and irrelevant issues, and, in many instances, they cannot possibly have had the training necessary for enabling them to come to judicial decisions.
– The honorable member would say that we have not the common sense of a jury ?
– I am not saying that for a moment. What I say is that this House as such has not been trained as a judicial body, and it would be infinitely better, to leave the decision of questions involving matters of law, and the weighing of evidence, to tribunals composed of men who, from their experience and training, are suited for the duty.
– The honorable and learned member for Northern Melbourne hinted that Judges were too highly trained in that respect.
– That may be so, but the Judges, by their training, experience, and education, are better fitted to deal with these questions than are members of this House. When it has to be decided what is an office of profit under the Crown, or whether certain transactions are really, in law, contracts or not, are not those questions for Judges rather than for members of this House ? I am not denying that members of this House often come to correct conclusions, nor am I impugning their motives; but I say that their training and their political partisanship render them less fitted than are Judges to approach these questions in a judicial manner. There is another reason for supporting the proposal in the Bill. A court depends to a very great extent for its reputation in the eyes of the public upon the belief the public have that it is pure. We must have courts in which the public outside can believe. The public must believe that the court, in giving its decision, is guided by the principles of justice, and by the evidence before it. I will ask honorable members to consider the case of an election at a time when there is heated political discussion, and party issues are keenly divided. Take, for instance, a case in Queensland decided against the labour party. Would not the people outside say that the decision was due to the fact that it was tried by six members, four of whom were members of the Ministerial party, and only two, members of the labour party? We cannot afford to createthat kind of feeling, and our court must be constituted in such a way that every one will believe in the purity of its administration. So long as we have party politics, belief in the purity of the administration of justice by a parliamentary committee cannot exist in the minds of the people outside. I am not saying that any committee of this House has done or will do anything improper, but I say that the electors outside will not believe that any parliamentary body can decide such matters in a purely judicial way. They will always believe that party feeling will find its way into the decisions; It has been said that this Parliament has now been sitting fifteen months, and no grave abuse has arisen. We have had two election cases before us - one before the Senate and one before the House of Representatives. The honorable member for
Coolgardie said that if election petitions have to be brought before a court there will be infinite delay. I ask honorable members how long it took the Senate to give a decision in the case before it ?
– That was because of the presence of two legal opponents on the committee.
– And they were political partisans as well as opponents.
– The honorable member for Coolgardie said that the system proposed by the Bill would lead to great delay, and I am showing that in one of the two cases of which we have had experience there was considerable delay.
– What about the delay in Daniels’ case?
– That was not before a High Court.In Queensland we have a peculiarly constituted compromise court, but we have not found that there have been long delays in connexion with that court.
– If the matter is likely to be decided in favour of the Government, the business is quickly transacted, but if it is likely to be against them, it takes a couple of years.
– That is not my experience. I appeared in one case on behalf of the labour party in Queensland, and when we went before Mr. Justice Real we got our directions at once, the time was fixed for the hearing of evidence, and the proceedings were got through quickly.
– The proceedings in Bowman’s case did not go through quickly.
– It is to Bowman’s case that I am referring. Any delay that there was in that case wasdue to the fact that the election was held in March, and Parliament did not meet until about July. That was a delay due to Parliament and not to the tribunal that decided the case. Under the provisions of the Bill there will not be any such delay as that, because the court can proceed with its work straight away, even bef ore Parliament meets. We have been constituted as a Parliament for so short a time that we have not had sufficient’ experience to influence our opinions in one way or the other as regards the desirability of this Parliament settling these questions. I believe that members here would try to do what is fair and just, but in laying down legislation which is to be permanent, we should look at the experience of other countries, and see what they have done. If we take the case of England itself, we shall find that in the earliest times these cases were tried by a sort of elections and qualifications committee. Between1603 and 1623, the only time when that practice gave satisfaction, the elections and qualifications committees were formed of PrivyCouncillors and of legal members of the House. Some of the best decisions we have - decisions whichare still relied upon in the text-books - are decisions which were given during that time, when cases were heard by distinguished legal members, and when there were such men as Coke and Glanville on the elections and qualifications committees. But abuses crept in, and Granville’s Act was passed providing foraselect committee, chosen by ballot. Abuses again crept in, and the experience on the whole was that cases were decided upon party considerations solely, and not upon considerationsof essential justice. The result was that in England these matters were, in 1868, referred to the Judges, and they have heard these cases ever since. The experience of Canada and Australia has been the same. We know that in Queensland these election cases were decided upon purely party considerations, and both parties there found from experience that the elections and qualifications committee was not a. satisfactory tribunal, and that it was absolutely necessary to constitute somedifferent tribunal. As a result there was introduced in Queensland a sort of compromise statute. Under the Act in force there now an elections Judge is assigned to the work every year. The Speaker at the beginning of everysession selects twelve members of the House who constitute a panel of assessors. Before an election trial comes oh the parties in the House have the right to challenge the assessors until only six are left, and the matter is then heard by the elections Judge andthe six assessors. Their functions are defined in this way : the Judge is supreme in matters of law, and theassessors are supreme in matters of fact.
– A judge and jury.
– It is not quite the same as a judge and jury, because the assessors have the right to decide whether certain evidence may be admitted or not.
– To overrule the Judge ?
– They have the right to decide uponthe admission ofevidence, on theprinciple of considering the equityand goodconscience of the case. That may not bealtogether satisfactory, but, so far as regards the judicial part ofthe tribunal, as a rule the Judges rulings have given satisfaction. I may mention a particular case as illustrating the working of the statute. The case is the one to which I have already referred, Bowman v. Hood. In that case the petitioner alleged that the respondent occupied an office of profit under the Crown, and, further, that some of the voters were non-residential. The petitioner was amember of the labour party, and the respondent was a follower of the Ministry. When the matter came before the court, the question was raised as to whether a certain officewas an office of profit under theCrown, and the Judge permitted the assessors as a body to decide the question of law and fact.Counsel were heard on the point, and the Judge having directed the assessors, they decided on the question of law and fact that theoffice held was not an office of profit. The Judge was then appealed to on the question of law, and he set aside the findingof the assessors.He held that the office was an office of profit under the Crown, and a fresh election was held. I mention that to illustrate the working of the Queensland statute, and if honorable members are not desirous of giving up the whole of their functions in this matter, they may be prepared to adopt a systemwhich has acted fairly satisfactorily in Queensland. Personally, having seen the working of the Queensland system, I think it is better to leave the matter entirely to the Judges. The honorable member for Coolgardie objected tothe proposal in the Bill, first of all, on the ground of cost. He said that the cost of trying these cases in the Supreme Court would be excessive, but I say that if these matters are to be determined in Melbourne the cost of bringing them before a parliamentary committee will be very much greater than would be the cost of hearing them before the Supreme Court. It must not be forgotten that a great deal of the costs in connexion with these cases cannot be avoided. Whether they are heard before the Supreme Court or any other tribunal, they must be incurred, as they consist chiefly in the expenses of witnesses.
– Why should nob the Crown pay them 1
– That is quite another question, and I am at present answering the arguments of the honorable member for Coolgardie. The honorable member’s second point was the law’s delay.; but we shall have delays no matter what course we adopt, and if a Judge is set aside to try these cases there should not be the same delay under the system proposed in the Bill as under the system which the honorable member favours. His third point was that a man’s fellow Members of Parliament can better deal with these cases than a court can. That is, of course, a matter of opinion. My own opinion is that, although honorable members may come to fairlyjust conclusions, on the whole we shall get better results if we hand these cases over to the court. For these reasons I shall support the Bill as proposed, with the exception that I believe that it would be dangerous to leave the whole of the decisions to any one Judge. I think that. the right of appeal should be allowed. Under the Queensland system we have that right of appeal, and it has been exercised.- It will give more satisfaction, if the right of appeal is allowed, should the system proposed in the Bill be adopted.
– I feel compelled to support the amendment proposed by the honorable member for Coolgardie. I have had some experience in parliamentary matters and in court matters, and I am strongly in favour of letting Parliament decide parliamentary matters, and of allowing the courts to decide purely judicial matters. I do not “regard this as a judicial matter. I do not regard the decision of the House as to the. maintenance of the purity of elections as being a judicial matter at all. There are provisions in the Bill as we are framing it which, if carried into law, will make it penal to be guilty of certain offences, and these offences, if committed, can be dealt with and punished by the ordinary tribunals in the ordinary way. But this House and the other Chamber have been declared by the Constitution, and by the people in the acceptance of the Constitution, to be quite capable, until Parliament otherwise directs, of maintaining the purity of their ‘‘membership. I know of nothing which has been done since the inauguration of this Commonwealth to justify the alteration of the Constitution in this respect. The honorable and learned member for Darling Downs has said that this House ought not to enter upon the judicial domain. I quite agree with the honorable and learned member ; but I say that the proposal to ask one Judge to decide an election petition on the lines laid down in this Bill is not a judicial proceeding. It is telling the Judge to do what it was thought some centuries ago the Lord Chancellor did when he administered equity. It was thought that decisions in the court of equity were regulated by the length of the Chancellor’s foot. It is very much the same in this case. We say bo the .Judge: “You shall entertain this petition, but we tell you that you are not to be guided by ordinary judicial principles. You are not to admit or reject evidence on judicial grounds. You are not to regard facts in the way in which you have been accustomed to regard them in deciding ordinary cases. You are to do substantial justice as you understand it, without any standard and without any appeal.” It places the Judge in a false position, It asks him to determine as to the criminality of a man’s action, and’ leaves .him unfettered or unsustained by any rules. We very often hear a J udge say that he has to be guided by the law, or that he can only interpret the law ; but in this case he would be called upon to follow his own sweet will, and would not be guided or guarded or fettered by any rules of law. Why should these cases come before a Judge ? This provision amounts bo a declaration on our part that we are unable to maintain the purity of our membership, and therefore have bo hand the decision of these questions over to State courts - that is, until the High Court of Australia is constituted - the members of which we do not know, and from whom we have no possibility of securing uniform decisions. We may have men elected in Queensland and in Western Australia, and other parts of the Commonwealth, under precisely the same set of facts, and yet have varying decisions. What standard are we to set up when these matters may be decided by different Judges according to their own individual ideas % Supposing we had a teetotal Judge in one case, and a Judge who was not a teetotaller in another case. We might have two decisions, equally conscientious, but vastly different, upon two sets of circumstances practically alike. By asking a Judge to do exactly as he thinks right, and to disregard the ordinary established rules of law, we are setting him a task that he is not so well qualified to perform as are men in the ordinary rough and tumble of life. There is no precedent for this proposal. In Canada the system adopted is somewhat different from that now proposed. In England the single Judge system was tried in 1878, but was found to be unworkable, and in 1880 two Judges were provided for, with an express stipulation that they must agree before a member could be unseated. Here wehave an admission that the system that we are asked to adopt was not found practicable in the mother country.
– Would the honorable and learned member favour the appointment of two J udges ?
– I should favour a tribunal consisting of two Judges as against one Judge, but I should not prefer it as against aparliamentary committee. A committee of honorable members would be a body of gentlemen who, whatever their political feelings or inclinations might be, would be as capable of doing substantial justice as any Judge upon the bench, and I am not willing to admit by my vote, or my voice, that this House is of such a character that it cannot be trusted, either now or in the future, to do that substantial justice. I feel compelled to vote for the amendment of the honorable member for Coolgardie, and I do it gladly, because just as I think that election petitions should be dealt with apart from party considerations, so I think that this should be treated as a non-party question. I cannot see that the whole of the disadvantages in connexion with expense and delay would be obviated by adopting the court system. When the High Court of Australia is established, we shall have petitions sent in from various parts of Australia, and then what will happen ? Will one Judge be detailed to hear these petitions, and go to the furthermost ends of Australia at once? We know that such a course may not be practicable. We are told that even in Queensland 40 or 50 witnesses have had to be brought, in some cases, for a distance of over 450 miles. When witnesses are being conveyed by sea, a difference of 200 or 300 miles may not amount to very much, and I would point out that travelling expenses do not represent such a serious item as the cost of keeping witnesses away from their homes and occupations. Furthermore, we know that the legal contests which take place in the courts of law - whatever qualifications and abilities the Judge may possess - are very costly. We cannot limit the expense. We may provide that one party shall not pay more than a certain amount towards the costs of the other, but it is almost impossible to fix a limit.
– The limit in Queensland is £200.
– £200 might not afford fair compensation to the successful party in some cases.
– We pay just as heavily in connexion with the Elections and Qualifications Committee.
– We shall be better able to regulate the expense if the cases are heard by a parliamentary committee. The procedure cannot be more expensive, and I do not thinkwe shall lose in substantial justice or in expedition. We can legislate so as to permit the committee to sit in recess if necessary. The time has not arrived, and the circumstances have not arisen, when we have a right to declare our incapacity, from any cause whatever, to discharge the high function of maintaining the purity of this House.
– The weight deservedly attached to the words of my honorable and learned friend, and the points which he has put forward, are such that I claim honorable members’ attention in order that I may, with the characteristic equity of my profession, show how an entirely opposite conclusion can be drawn from the facts which my honorable friend has cited to support his argument. I do not doubt for a moment my honorable friend’s sincerity, and am sure he does not doubt mine ; but I am about to show that the particular clause to which he referred in his opening remarks, and which, in his opinion, placed the Judges in a position of peculiar disadvantage, is, to my mind, one of the principal considerations which should commend to the committee the proposal to substitute a judicial tribunal for one which is sometimes judicial and sometimes otherwise, according as it may happen to be constituted, and according to the nature of the question submitted to it. I have had considerable experience of cases submitted to elections and qualifications committees, at times when party feeling has run high, and venture to say that it was scarcely fair to subject the members of those committees to the strain to which they were exposed. It was remarkable,under all the circumstances, that they discharged the duties devolving upon them as well as they did. The results, however, were entirely unsatisfactory to both the parties concerned. The victorious side wasuniversally challenged as having won on political grounds, without regard to the merits of the case, and on the other side there was more than a suspicion that the treatment metedout had been dealt to a politicalopponent, rather than in the interests of pure justice. It isdifficult for men who constitute such a tribunal to dismiss from their minds all considerations bearing upon the merits and strength of their own party, and to deal with the issues submitted to them as something different from the political issues they are accustomed to support upon the floor of the House as party against party.
– Does the Minister think that it is impossible for honorablemembers to dissociate their minds from party considerations ?
– I think it is rare for them to be able to do so for any length of time. Left as they are with insufficient guidance upon the technical issues raised before them, they are extremely apt to be led aside by ingenious advocates in adopting a course, upon technical grounds, which they can scarcely reconcile to their own consciences as strict acts of justice. I decline to look upon this provision as a reflection either upon Parliament or upon this Chamber, and any criticism I have to offerwill be directed rather to other political bodies with whichI have been associated. They are of the past, and can be judged upon what they have done; but this Parliament has yet to show what it will do. So far, we have only one illustration of what we may look for from the settlement of election disputes by tribunals connected with this Parliament.
– We had two cases in. this House.
– They were of the simplest possible character, and the wonder is that the second case occupied such a long time as it did. The delay in coming to a decision was certainly not due to the complexity of the question.
– It was due to the adjournment of the House.
– The case that occurred inconnexion with anotherChamber offers a far less satisfactory indication of what is possible; If I may say so without disrespect, the verdict in that case appeared to have been givenfor purely political reasons. The clause to which I look forward with the most confidence is that which raised the greatest alarmin the mind of thehonorable and learned member for Indi. It is provided that-
The court shall be guided by the substantial merits and goodconscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
My honorable and learned friend asks why the judges, who have had life-long experience in administering justice in accordance with certain forms, should be placed in the painful position of having to decide without regard to such forms. It appears to me that what this clause is intended to do is to set the Judge free from the limitations imposed upon him by legal forms when he feels that it is necessary that he should be guided by the substantial merits, and deal with each case in good conscience - not otherwise. It stands to reason that the man whose habits of mind have been formed during years of judicial experience, and who has been accustomed to dispense justice according to ordinary legal forms, will be able to retain the essential guidance which they afford to the trained mind, whilst dismissing all consideration for the mere technicalities of the law. He will not necessarily brush aside all his experience and all his knowledge of the law, but only such parts of it as conflict with good conscience, or debar him from doing substantial justice.
– He is to be guided by his ownsweet will.
– On the contrary, he will beguided asmy honorable friend would be. If the honorable and learned member endeavoured to divest himself of all that his legaltraining has given tohim in addition to his natural ability he would be unable to do so. Even if he did set aside those forms, sofar asthey hamper him unduly, he would be unable to discard the judicial habit of mindwhichhe has acquired, and which is of inestimable valuein a case of this kind. I am far from desiring to unduly exalt outside courts. The former are open to the same dangers as committees, though it appears to me that they are less open to them. In the first place they are not composed of keen partisans. Members of Parliament are naturally - even if unconsciously - biased by their political principles. But an independent tribunal will be much less biased than a parliamentary committee, whose members, lackinga judicial habit of mindare called upon to decide whether a seat shall be given to their own political party, or to another.
– That is not necessarily the issue.
– Neither does the committee decide finally.
– I have known cases in which the House has referred a report back to a committee, but that course was adopted only when a majority of the House did not agree with the representation of the committee, and thought that its claim to consideration should be more respected. Without claiming that the tribunal, which it is proposed to establish under this Bill, is infallible, I hold that the members who would constitute it, by reason of their training, and of their absence from the political sphere, would obviously occupya better position than would members engaged in active political life. It seems to me, therefore, that the embarrassment which a justice would encounter would not be of the serious character to which my honorable friend referred.On the contrary, I believe that such a man would do justice, as well as he could, fearlessly, and certainly under much better conditions than could any parliamentary committee. When we have a better tribunaloffered to us, why should we not accept it? It is notnecessary to reflect unduly upon decisions given by Elections and Qualifications Committees. Some have done their duty in a fearless manner in the face of great difficulties. But we must look at the average man, exposed to the average temptations of his position, trying an average case. I have seen instances in which the absence of judicial knowledge and of some technical acquaintance with the rules of evidence has caused these committees to be led astray by the advocacy of counsel.
– Does the AttorneyGeneral know of any case in which injustice has been done ?
– Yes. I have in my mind one case of which I was a witness, and in which the committee were hoodwinked in the most audacious manner - so much so, that every professional man connected with it admitted that the proceedings were a mere travesty ofjustice. The committee were anxious to decide in a particular way, but on the merits of the case could not do so. A technical point was taken; they atonce seized it, and found upon that technical plea. That will occur at times.
– Yes, even in courts.
– Yes. But the honorable member has a sense of proportion, and will admit that where it would occur once in a court it would happen a hundred times in a miscellaneous and untrained tribunal.
– What is the meaning of the words - “The court shall be guided by the substantial merits and good . conscience of each case without regard to legal forms or technicalities “ ?
– They mean that evidence which a Judge would be bound in the ordinary administration of justice to exclude need not be excluded. Such evidence might be admitted and given its due value. If aJ udge were trammelled by legal forms and technicalities there would be a danger of a verdict beinggiven upon a purely technical issue, and I am sure that the committee do not desire that. They wish to see substantial justice done. Upon the whole, having regard to our daily experience, I submit that it would be wiser to leave these disputes to be settled by trained men, rather than by half-a-dozen untrained men who are unquestionably partisans. I confess that better opportunities for dealing with cases locally seem to be presented by this clause than would be offered by an Elections and Qualifications. Committee. On these grounds it appears to me that greater economy is possible under this Bill than under the system of allowing election disputes to be determined by an Elections and Qualifications Committee. If this committee chooses to require that whereever possible cases shall be dealt with locally, that will be a very reasonable provision to insert. It would be cheaper to send a Judge or Judges to determine an election dispute upon the spot, than to bring a large number of witnesses to the capital of a State. If honorable members desire economy in connexion with trials of Parliamentary offences, they have an opportunity of securing it by insuring that wherever possible disputes shall be heard by theJudges as near as possible to the place from which the witnesses are drawn.
– The Government would not order the State Judges to try these cases.
– The States Judges are bound by the laws of the Commonwealth. As a matter of fact, however, I do not think it would be necessary to adopt any attitude which might be considered discourteous. If these offences are tried as near as possible to the place where the witnesses reside, and as soon as possible, by men who are judicially trained, what system can be better ?
– The different States Judges have their work cut out for them for weeks and months ahead.
– They have; but political cases, the hearing of which occupy more than two or three weeks, are extremely rare.
– I know of a case which was referred to the courts ten months ago, and, so far, it has not been heard of. There are a number of other cases hinging upon it.
– If it is desired- as it ought to be - that expedition shall be secured, why not provide for it? I have not the least doubt that all the States would be ready to meet us by allowing their J udges to take up disputes of this nature, and deal with them till they are out of hand. Surely that is the easiest way to secure economy and expedition. We can promise neither of those good results from the appointment of an Elections and Qualifications Committee, whose sittings will be determined by those of the House.One other point made by the honorable and learned member for Indi was that if we allowed the State Judges to act in different parts of the Commonwealth, we should get different decisions, clashing with one another. That may be so, but I am quite sure that they will not clash more than would the decisions given by an Elections and Qualifications Committee. I could cite cases in which it would be most difficult to reconcile the findings of the same tribunal. I admit the force of the comments made by thehonorable and learned member, but hold that they tell with greater effect against the system of allowing these disputes to be settled by a Parliamentary committee than they do against the method proposed under this Bill. I do not regard the Government proposal as perfect. I believe that it might be improved by making greater provision for expedition and economy. When, however, the choice lies between a tribunal consisting of one or more trained men and a number of untrained men, or between one disinterested man and a number ofkeenly interested individuals, I have no hesitation in preferring the former. I believe that these disputes should be decided by men who are trained in the work of arriving at the truth.
My. V. L. Solomon. - What a terribly low valuation the Attorney-General puts upon honorable members !
– Not in the least.
– We do not want a lawyer to deal with simple facts.
– No ; and the Bill provides for disregarding the technicalities of the law. But we want men whose lives have been spent in deciding between conflicting statements and in arriving at the truth. If there be a better process in existence for arriving at the truth than that which we find in the law courts to-day it has yet to be discovered. That process will stand an immense amount of perfecting, but a better has not yet been devised by the wit of man, nor has any body of men been found to whom we should be more prepared to trust our lives and fortunes than those who have been specially trained to deal with all matters in an absolutely judicial manner.
– In the last sentence of the Attorney-General is the crux of the question. The honorable gentleman referred to the system under which Judges administer justice ; but I take it that in appointing an Elections and Qualifications Committee we desire to keep outside system of any kind. It is admitted that mistakes are made in the law courts owing to their systematized procedure, which we all know causes the decisions to run in grooves. That is what we wish to avoid.
– And that is got rid of by the Bill.
– If we were setting up a law court in which the procedure had to run in grooves so as to govern all cases which might arise, we should appoint a Judge to interpretthe rules and apply them.
– I suppose the honorable member has read clause 204 ?
– We do not want to establish a system ; to decide on the simple merits and justiceof apetition needs no expert lawyers. The obligation is on those who want the change to make out a case. It is said that a law court will be more expeditious than a committee. But the general experience of law courts is that they are anything but expeditious. So far from cases going through speedily, they very often drag on for an unconscionable length of time. In an Elections and Qualifications Committee we have the means for celerity at our disposal. The committee are here within the control of theHouse, with practically nothing else to do whileParliament is sitting, but to press investigations through to completion. The costs in a law court would, I am afraid, be enormous as compared with those incurred before an Elections and Qualifications Committee.
– Why should the costs in a court be more than those incurred before an Elections and Qualifications Committee ?
– I do not think a Judge will sweep away technicalities in quite the same way as does a committee. Had the case of the honorable member for Tasmania, Mr. Hartnoll, been tried before a Judge, and argued by two lawyers, it would have occupied weeks. There were all the possibilities of along investigation there, and it was an advantage to all concerned that only one lawyer was engaged, and that the decision lay with the committee. The honorable member for Tasmania, Mr. Hartnoll, pleaded his own case, and I am bound to say he did it well - he simply “ knocked “ the lawyer “a-cock.” At any rate, the honorable member so satisfied the committee of the substantial justice of his case that a decision was very soon arrived at.
– That was a case in which partisanship did not arise.
Mr.V. L. Solomon. - But there were technicalities in the case which would have occupied lawyers for weeks.
– The honorable member for Bland talks about cases in which partizanship arises.
– And thehonorable member has seen such cases in New South Wales.
– I challenge the honorable member to show one case where, in spite of any exhibition of partisanship, substantial justice was not done.
– I can show that.
– I cannot for the moment think of any such case. We may have our little tiffs and party squabbles, but in the end, somehow or other, we generally find ourselves taking the course which makes for substantial justice. I see no reasons for a change ; on the contrary, if we make a change we write down our own system as a bad one which can no longer be trusted. I am not prepared to say that this Parliament is not competent to try the cases of its own members, and give them all the justice that is possible on this sublunary sphere. I believe there are enough men in Parliament of sound common sense and good judgment - which after all is the main thing - to do justice to their fellow members. We should do well to stick to an old course of procedure which has done well for us in the past, in spite of all the criticism that may be brought to bear. Any court may be criticized, and in New South Wales the Arbitration Court is already the subject of criticism. The Judge of that court, like other mortals, is not a perfect man, and in the opinion of some of the applicants, he is making mistakes precisely in the same way as mistakes are said to be made by an Elections and Qualifications Committee. We cannot have perfection, but we must not condemn a court because it does not please everybody. Until some need for change is shown, we ought to stand by an old institution which has done good work in the past, and will do good work in the future. If thecommittees are chosen on a partisan basis, that is entirely the fault of Parliament. As a rule they are chosen before the cases come up for consideration, and before the partisan element can enter.
– The Elections and Qualifications Committee is generally selected from all parts of the House.
– The appointment of the committee is one of the first acts of the session, before it is even known there is any appeal or petition. The partisan element cannot enter into the selection, because it is made by the one man in the Chamber who is supposed to be a non-partisan. How could we have a selection bearing on the face of it more clearly the stamp of non-partisanship than that made by the highest officer in the House - the man who sits coldly apart from all our conflicting parties, and does his best to appoint a committee which will represent the temper and the fair mind of the Chamber? By the appointment of this committee we exhaust all the means, at our disposal to, get a competent tribunal ; andto bring into this Chamber the circumlocution and techniqueof a law court willnot help us to a better solution of the questions which arise.
– This subject has been very ably discussed, and sometimes I have been doubtful as to my own determination. The preponderance of evidence, however, seems to be infavour of the system proposed by the Government. The honorable member -for Parramatta, and many others, who advocate the committee method so strenuously, have been guided very largely by their own experience, which appears to have been singularly happy in the State of New South Wales. But I know that in some of -the otherStates the experience has been quite the opposite, and in Great Britainthe committee systemhas been given up, and judicial decisions appealedto.Some of the arguments used infavour of the committee system are quite specious, and wide of the mark. I was surprised at the honorable member for Perth contending that by refusing to undertake the settlement of disputes we show outside critics that we are not entitled to that confidence which we ought to enjoy.
– That will be the interpretation put upon our action.
– It is said that if we adopt the clause we shall give an additional cause for adverse criticism’ of this Chamber. So far as I am concerned, I shall not allow my decisions and my conduct here to be governed in any way by outside criticism. The duty of deciding disputed elections is one from which I pray to be delivered. It is not a duty that this House is at all times competent to undertake in an unbiased and impartialspirit. Party strife is at times almost at white heat, and the accidental construction of an Elections and Qualifications Committee will very probably govern the decisions. Human natureis the same all the world over, and in troublous political times in other centres of civilization,and at other stages of the world’s history, people have been actuated by their political principles to a very marked degree. It is not wise or politic for this House to enter into matters where its conduct and motives may be called into question. Some time ago, when the report was brought up on a petition against the return of a member of this House, there was a little heat shown, it being suggested that the report was insome way influenced by party feeling. The righthonorable member for Tasmania,Sir EdwardBraddon, who advocates the committee system,was on the Elections and Qualifications Committee to which I refer, and the question was raised wrongfully, Ithoughtatthe time, as to whether he should have adjudicated in that particular case. I have the utmost confidence in the right honorable member, but we may be sure that the same sort of question will arise over and over again if disputed elections are decided by a committee of this House. On the other hand, if we refer the cases to an independent tribunal, like a learnedJudge of the High Court, we shall at any rate secure their removal from the heat of political strife. The decision will be intrusted to a man who adjudicates on far higher issues - issues relating to life and property.It is not so much because Judges have judicial experience or judicial training that the cases are referred to them. As pointed out by the Attorney-General theBillspecially provides that real justice shall be administered, whatever the other kind of justice may be. In other words, we are to strip theissues of all the technicalities and ordinary procedure whichgovern law courts. Some of the honorable and learned members who, much to their credit perhaps, are opposed to the system of referring such cases to the courts, say - “Why, if you are to take these matters from the control of lawyers, do you want a Judge to preside?” But there are special reasons why we require a Judge for the purpose. First of all, theJudges of the High Court are mostly officials as to whom care is taken to insure that they are in a perfectly independent and unbiased position. The history of the courts of the Commonwealth gives us sufficient confidence to intrust this or other matters to the hands of such Judges as we are likely to have.But, apart from the fact that we do not want trained men to decide these cases, we select a Judge because he is trained on the one point where we require the assistance of a trained intellect, namely, in the weighing of evidence and the judging of whether the evidence is relevant or otherwise. Laymen are apt to prolong proceedings of this kind by admitting evidence which is irrelevant, . whereas a trained man like a
Judge will prevent the flooding of the tribunal by unnecessary evidence, and will confine the issue to the point in dispute. On the whole, it is far wiser to divest ourselves of this responsibility, though I have no fear whatever as to our not trusting ourselves to do the work. In ordinarysocial lifemen frequently find themselves in a position in whichtheywould bequite competent to decide a matter, but through asense of possible bias, or even from asense that others might deem them to be biased, they divest themselves of the responsibility, and ‘ turn it over to somebody else. In cases of arbitration it isfrequently stipulated that the chief arbitrator shall bea Judge of the Supreme Court.Suchan official isselected because he is accustomed to deal with evidence, and because it is considered advisable to have athoroughly unbiased and independentman to preside. Although the debate has been exceedingly interesting, andthe matter has been well presented from both sides, I have come to the conclusion that itwould be far wiser to entrust cases of thiskind to the court, and, therefore, Ishall supportthe clause, although I agree that we might, perhaps, put some limitation onthe enormous cost involved in such enquiries, and also mightfacilitatespeedy settlements. But whenwe speak of the cost of these election cases, it is perfectlysafe toassume that that cost may be extravagantly high under whatever system we adopt. The cost must necessarily be very great if a case is severely fought.Butwe should limit the expense as much as we can. I deprecate bringing the settlement of those matters to a bodywhich must be more or less influenced by political bias, which has been in the past history of Australia sometimes very warm indeed, and is likely to be as warm in the future as it has been in the past.
Amend men t agreed to.
Clause, as amended, agreed to.
Clause 198. - (The Court of Disputed Returns.)
– I wish to ask the Minister what; he proposes to do now? Several consequential amendments are required in the remaining clauses of Part 17.Possibly the honorable gentleman might postpone these clauses until the non-contentious clauses are disposed of.
– I understood that the honorable member for Coolgardie intended to move some amendment. I should like to hearwhat it is beforeIsay what the Government will do.
-I hardly think that it is a proper position for the Government to take up; they should not wait to see what a private member proposes to do. The committee has carried an amendmentshowing the direction inwhich they think the Bill should be amended. Owing to the adoption of that amendment, certain consequential alterations are required. Surely the Minister does not mean tothrow upon me theresponsibility of drafting thoseamendments ?
– I understood that thehonorablemember had a certain proposal to make, and I wanted to know what that proposal was before I could say what course the Government will take.
Mr.MAHON. - I am sorry if I have not made myself quite clear. The committee have amendedclause 197, requiring any election petition to be presented to the Clerk of the House. The Government might infer from that that all the provisions regarding the High Court will have to go bythe board. The committee has inserted instead of the words “court of disputed returns,” thewords “ the Clerk of the House affected by such petition or return,” andit is the Minister’s duty, rather than mine, to move . the necessary consequential amendments.
– The amendment which has been carried really does nob decide whether the High Court, or a Judge ofany court, is or is not to deal with elections petitions. When a petition was presented to it, Parliament would have a perfect right, if clauses to that effect were left in the Bill, to send it to the High Court. I understood that some additional proposal was going to be made. The committee might decide to have the ordinary Electionsand Qualifications Committee, or to adopt the method that has been pursued in SouthAustralia, or the Queensland method. In NewSouth Wales and Victoria the plan is for the Speaker to nominate the Electionsand Qualifications Committee. If there isto be a particular method of selecting the Elections and Qualifications Committee, or of appointing it, I should like to know what form honorable members desire to adopt.
– I understood that when the last division was taken it settled a test question raised by the honorable member for Coolgardie as to whether election disputes were to be decided by a court of law or by an Elections and Qualifications Committee.
– Certainly not ; and it was not so understood. Sir JOHN QUICK. - That was the drift of the whole debate. I understood that those who voted for the amendment were in favour of an Elections and Qualifications Committee. This is not a party -question, but one in which the whole House is interested ; and I am sure that the Government will be glad to give effect to the view of the committee. My own opinion is that the Victorian system should be adopted. Under that system petitions are presented to the House affected. They are then relegated to the Elections and Qualifications Committee, which is nominated by the Speaker by his warrant at the beginning of each Parliament. The Speaker’s warrant is laid on the table for a certain number of days, and if no objection be taken in the House to the constitution of the committee within that time, the committee is duly constituted, and has jurisdiction to deal with disputed returns. I apprehend that if any objection were taken to the personnel of the committee, the member objected to would probably retire rather than run the gauntlet of a discussion. I believe that the “Victorian system has worked well, except in one instance which occurred at a time of political fever heat, and mistakes are made by the best constituted authorities. I think, therefore, that we ought to go in for that system pure and simple, and not for the hybrid system which prevails in Queensland, where a Judge presides as chairman, having Members of Parliament as jurors to decide questions of fact.
– A Judge presides in South Australia, too.
– What are the functions of the Judge ? If we are to have a court of law, let us have a court of law pure and simple. If we are to have an elections and qualifications committee, nominated and determined by Parliament, let us have it. Let us have one thing or the other, and not the hybrid system which prevails in Queensland and South Australia. I advise the Minister to adopt the system which prevails in New South Wales and Victoria, and to have a parliamentary committee exercising the powers and functions indicated in this “ Bill. I hope the honorable” gentleman will undertake to give effect to what is evidently the voice of the majority of the committee.
– There was to my mind, and I think also to the minds of every honorable member present, only one issue in the last division. The committee divided upon the question, whether these election petitions should be considered by the Supreme Court or by a committee of the House. Having decided that they are to be heard by an Elections and Qualifications Committee, there is to my mind an end of it, and we have now nothing to do with any of these clauses dealing with the High Court.
– It is all very well for the right honorable gentleman to put everything on one side by a wave of the hand, and create all manner of con- ‘ fusion. The right honorable gentleman is wrong when he says it was clearly and distinctly understood by the vote taken that the alternative was to be an elections and qualifications committee selected from the House by the Speaker. There was nothing of the kind submitted or suggested. On the contrary, one or two speakers very strongly referred to the South Australian method, and one or two also referred to the Queensland method ; and the honorable member who moved the amendment submitted to myself a proposal that was a composition of both. I think that under these circumstances it is anything but clear that by the amendment just carried it was decided that a certain course is to be pursued. I desire to know really what course the committee wishes to follow. I can easily have prepared and submitted a proposal for an Elections and Qualifications Committee on the lines hitherto adopted in New South Wales and Victoria. In New South. Wales the course adopted has been for the Speaker, within a certain time after the meeting of Parliament, to nominate so many members as members of an Elections and Qualifications Committee - I forget whether the number is seven or nine. His warrant lies upon the table for three days, and if it is not taken exception to within that time, it has the force of law for the rest of the Parliament. I presume that some such course has been followed also in Victoria. I wish now, really, to ascertain as far as possible what was the decision of the committee in the last vote taken, because it is by no means clear yet. If I am to understand that it is the pleasure of the committee that an Elections and Qualifications Committee should be resorted to, that is all I care about ; but I do not wish to bring up two or three alternative proposals, and have them debated for a day or so longer. I desire to have the matter settled now. I am quite agreeable to meet the views of the committee as far as possible, but their views were certainly very vaguely indicated by the vote which has taken place. If it is the intention that we should have an Elections and Qualifications Committee, I can easily have clauses drafted for the purpose, and as I have no wish to delay the matter further, I move -
That clauses 198 to 211 inclusive be postponed.
– I do not believe that is a desirables course to follow.
– Then the right honorable gentleman had better come and sit in my chair. If the committee follow the right honorable gentleman he will very soon have an opportunity of sitting in my chair if he desires to do so. I intend to postpone these clauses ; that is what I am going to do, or I shall go no further with the Bill.
– I am rather surprised at the attitude of the Minister in this matter. I supported the Government, believing that they were right in principle, but we do not desire to lose time. Nothing could be clearer than that the vote which has taken place was upon the alternative schemes of referring these matters to a Judge of the Supreme Court or to a committee of this House. The honorable members for Indi and Bendigo, as well as several other honorable members and myself, as supporting the Government, put that clearly. But the Attorney-General put it more clearly than all of us, because he put the two systems side by side, and gave the experience of their operation in different places, clearly proving that what we were asked to do was to adopt one system or the other. I believe the Minister has been given a clear indication as to what the committee require. Honorable members require something which I do not believe in ; but I do not wish to waste time over it, and when the Minister called upon the honorable memberfor Coolgardie to submit a clause, he might as well have given him charge of the Bill.
– The honorable member intimated that he was going to make a proposal, and I desired to know whether he intended to make it.
– It has been agreed that this is not a party measure ; it has been dealt with on that understanding, and the Attorney-General might, therefore, have remained in the chamber and assisted the honorable member for Coolgardie to get the principle he advocated placed in the Bill. I think it would have been better for the Minister in charge of the Bill to withdraw these clauses, in order that effect might be given to the intention of the committee.
– That is what he proposes to do.
– After roasting everybody for the attitude taken on the question, the honorable gentleman proposes to do that, but in the first instance, if I may say so, he adopted a surly demeanour in refusing to go on, and in waiting for the honorable member for Coolgardie to make a proposal. If such a proposal had been made, it would have involved no end of consequential amendments, and it would have required the services of a practised draftsman to see that they properly fitted with the other clauses. The last proposal of the Minister should have been his first. He now proposes to withdraw the clauses, and consult his draftsman to give effect to the will of the committee, and that is what had better now be done, though I believe the best system is not being adopted.
Motion agreed to ; clauses postponed.
Allelectoral papers provided for by this Act may be transmitted through the post free of charge ….
– It has been represented to me by one honorable member from South Australia that this clause may lead to some difficulty in connexion with the Postal Bill. Under this Bill it is provided that electoral documents connected with federal elections shall pass through the various post-offices free. It has been pointed out to me that it is extremely probable that there will be some confusion owing to the fact that, if possible, the States will for purposes of economy hold their elections at the same time as the federal elections are being held, and there will be considerable difficulty in distinguishing between postal matter connected with State elections and postal matter connected with federal elections. I ask the Minister whether it would not be possible to introduce words which would accord to the States the same privilege in connexion with their elections as is to be enjoyed by the Commonwealth in respect to the federal elections ? It will be impossible in many cases to distinguish between papers relating to State elections and those connected with federal elections, and there is no reason why the States should not be allowed to forward their electoral matter through the post free of cost. It must be remembered that although we have taken over the Postal department, the various States have to meet the expenditure incurred, and receive only such net revenue as may be earned. Therefore, the Federal Government has no more right to make use of the Post-office than have the various States. I do not think that we have any right to deal in this Bill with questions affecting the revenue and income of the States. Therefore we should defer dealing with this question until we have the Postal Rates Bill under consideration.
Mr. JOSEPH COOK (Parramatta).”We have decided that certain returns shall be sent to our officers, and have provided for voting by post. Therefore we must make extensive use of the Post-office to give effect to the clauses already agreed to, and clearly the place for this machinery clause is in this measure. I do not see that there is any element of unfairness to the States in the present proposal. They will furnish the money for carrying out their electoral Acts from some State fund, in the same way that we shall provide for the working of our Electoral Act out of some federal fund. The Minister for Home Affairs will be charged by the PostmasterGeneral for all matter sent through the post by the electoral department, and no injustice will be done to the States, so far as that is concerned.
– If an elector sends a State postal vote through the post he will have to pay, whereas his letter will be franked in the case of a federal election.
– That is a matter for which provision will have to be made by the States. No doubt they will treat their electors just as generously as we propose to treat ours.
Mr. V. L. SOLOMON (South Australia). -I move -
That the words “or under any Electoral Act of any State “ be inserted after the word “Act.”
If we have a right to deal with postal rates in this Bill, so far as they affect federal electoral matter, we are perfectly justified in extending the provision so as to comprehend the electoral matter of the States.
– Oh, no. We have a right to deal with our own affairs but not with those of other people. This provision does not in any way alter the financial position of the States. The State franks are still current.
– They are not current in all cases, because I know that members of the Legislative Assembly in South Australia have had to pay postage on their official papers.
– I get letters every day which have been franked from the different States.
– There is no justification for our sending federal electoral papers free through the Postal department, of which we have nominal control only, whilst State electoral matter is subject to postage. We should deal with the States in a fair and generous . spirit, and allow their electoral matter to pass through the Postoffice free of charge.
– We shall have to pay the Postal department. I have already been charged a large sum for postage.
– If the federal departments are to keep accounts of the money taken out of one pocket and put into another, our expenses of administration are likely to be very heavy indeed.
– The honorable member must not forget that I am talking about matters connected with administration.
– I leave it to the good sense of the committee to determine whether in regard to the franking of electoral matter through the post, the States should not enjoy the same rights as does the Commonwealth. It would be much cheaper to allow them this privilege than to maintain a staff of clerks for checking purposes.
– The answer to the honorable member is that no matter is “ franked “ in that absolute sense.
– Then where is the necessity for the insertion of this clause?
– It is a guarantee to the voter that he will be able to send his vote through the post, if need be, without paying for it.
– But during the currency of the bookkeeping period, it seems to me that this provision is unnecessary. To say that federal electoral matter shall be franked through the post and that a similar privilege shall be denied to the States for matter having reference to State elections is absurd in the extreme, and must lead to a tremendous lot of unnecessary account keeping.
– Would the honorable member make another electoral law at the end of the bookkeeping period?
– At the end of that period new postal legislation will have bo be enacted. Does the honorable member imagine that the other States will permit of Victoria having a penny postage system, whilst in South Australia the people are re quired to pay 2d.?
– Supposing that we eliminate this clause, under what other provision could we give an elector the right to send his vote through the post free of charge?
– I think that such a contingency should be provided for in the Postal Bill. Why, I ask, should the States be placed in a disadvantageous position as compared with the Commonwealth ?
– Why should we have to pay for travelling on the State railways, which is a parallel case?
– I do not think that it is.
– It is very similar.
– That is a delightful red herring to draw across the track. If this provision, imposing upon the States’ Postal departments the duty of franking all matter connected with Federal elections free of charge, has any right to be embodied in the Bill, why should we not extend it to the States and allow them to frank their electoral matter ?
– I think that the honorable member for South Australia, Mr.V. L. Solomon, overlooks the fact that we are now dealing with an Electoral Bill the scope of which embraces the whole Commonwealth. We have no power to regulate the postal arrangements of any State by means of an Electoral Bill. We cannot say that electoral matter in any State of the Commonwealth shall or shall not be carriedf ree. I do not knowwhy the honorable member takes such strong exception to the provision under discussion. All the matter which is franked is subject to a payment by the Minister for Home Affairs, which is distributed amongst the various States under the bookkeeping system. Thus, if in the first instance Tasmania apparently loses something by having matter sent through her post-offices free, she recovers it ultimately when the Minister pays the bill, and the amount is handed over to the Federal Treasurer.
– I am not sure that the view taken by the right honorable member for Tasmania is quite correct. It seems to me that the departments are legislating one against the other. If honorable members refer to clause 5 of the Postal and Telegraphic Rates Bill they will find that -
Telegrams, letters, and postal articles transmitted or posted on behalf of the King, the Commonwealth Government, or any State Governments, shall, unless exempted by some Act, be subject to the postal and telegraphic rates for the time being in force.
They are subject to postal and telegraphic rates only when they are not exempted by some Act. This Bill proposes to exempt them. The Postmaster-General has declared his intention of debiting all departments with their expenditure upon postal matters. I think it is a very good thing that that course should be adopted, so that we may know the cost of the different departments.
– That is purely a bookkeeping matter in the end.
-I quite realize that. We propose to specifically exempt electoral matter from postage. I ask the Minister if it is necessary to retain this clause ? Can not the regulations accomplish all that is necessary ?
– Does theMinister intend to retain these words?
– I think so. The honorable member will see that so far as the States and the Commonwealth are governed by the provisions of the Post and Telegraph Act. What the honorable member refers to is not in an Act, but in a Bill which is before the House at the present time.
– But it represents the opinion of the Cabinet.
– It may not represent the opinion of the committee. The clause before us is to make the means of communication as unrestricted and convenient as possible. It refers not only to voting by post, but to all communications connected with electoral matters. If this clause be not inserted, private individuals will have to prepay postage on all such letters.
– A stamped form might be sent to the voter.
– No doubt the difficulty could be obviated, but considerable trouble, inconvenience, and, probably, delay would be caused. I find that the administration of electoral matters in a number of States is different from the administration in only one State, and every facility should be given to prevent any trouble or delay in delivery. The Postmaster-General has called on each department to debit itself with the amount of postage, just as the Railways Commissioners in New South Wales debit the State departments - including the Postal department - for work done, to the extent of £70,000 a year for the carriage of mails. In both cases, however, it is merely a bookkeeping account, which does not affect the revenue.
– It shows the outlay in each department.
– That is so, but I do not think that is a material consideration, with an election once in three years and a revision of the rolls once in twelve months. I ask the honorable member not to press his suggestion, because, after discussion, the department has arrived at the conclusion that it would mean a great restriction.
Clause agreed to.
Clauses 213 to 215 agreed to.
Postponed clause 40 -
The returning officer for the division, together with -
Amendment (by Sir William Lyne) proposed -
That the words “ residing within the division “ be omitted, with a view to insert in lieu thereof the words “who are authorized by the Governor-General to sit as members of a special court of revision.”
Sir EDWARD BRADDON (Tasmania). - I presume the intention of the amendment is to prevent the possibility of any local bias on the part of the justices. I do not altogether like the idea of justices being specially nominated by the GovernorGeneral, but it is a case of choosing the lesser of two evils.
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 41 -
The special court of revision may sit at any time between the hours of seven a.m. and twelve midnight and at any convenient places within the division, and it shall not be necessary for the same magistrate or justices of the peace to be present at every sitting of the court.
– I should like an explanation why this clause was postponed.
– It was postponed by the Attorney-General ; but, after consideration, that honorable gentleman and the draftsman do not think it advisable to suggest any amendment.
– When the clause was last before the committee it was suggested that the words fixing the hours should be omitted, and others inserted permitting the court to be held at any convenient time. It is often necessary for revision courts to sit very late in order to get through the work, and they ought not to be bound to stop sharp at midnight.
– I should prefer to see the hour fixed at seven p.m. in the evening.
– That hour is not excluded by the clause.
– But the probability is that members of the court will decide to sit at ten o’clock in the forenoon as the most convenient hour for themselves, and this will operate harshly on numbers of men who find it difficult or impossible to leave their work for a day in order to attend. In the evening everybody is able to attend.
– In Victoria the courts sit as directed, and they are directed as public convenience requires. In the summer the people often prefer to attend before breakfast, rather than at night, and the court is fixed accordingly.
– There is no provision in the clause for any instruction, the fixing of the hours being left to the court.
– In Victoria the Minister finds out when it is desirable that the court shall sit, and he issues instructions accordingly.
– If that were embodied in the clause, it would probably get over my objection ;but great inconvenience will arise in country districts, and, perhaps, in towns, if the clause be left as at present.
– Seven o’clock in the evening is a most inconvenient hour for electors in country districts.
– Not at all ; it is a most convenient hour for all sections of the community, except, perhaps, suburban residents, and they can generally make time to suit themselves. People who have to work in the day-time would be glad to attend the revision court in the evening. In Victoria I believe the courts have frequently sat at night. In New South Wales, where the courts have sat at ten in the morning, it has been found not only inconvenient, but absolutely impossible, for working men to attend, because they could not get leave from their employers, and the result was that their cases had to be intrusted to some one else who did not know all the circumstances.
Sir EDWARD BRADDON (Tasmania). - It certainly would be most inconvenient to a great number of electors in the country districts if they could not get their business at revision courts finished before seven o’clock at night. Many country electors have to travel miles to attend the court, and like to get home before seven. They like to get their business done early in the day.
Mr. WATSON (Bland). - What the right honorable member for Tasmania, Sir Edward Braddon, says, may be the case with regard to many farmers, but on the other hand there are numbers of workmen who cannot get away in the day-time. I suggest that courtsshould be held between seven and twelve in the evening, or, as suggested by the Attorney-General, there should be a provision whereby the Minister could direct courts to be held in the evening in order to suit the convenience of the people of a particular district.
– The AttorneyGeneral has suggested a means of meeting the difficulty. I move -
That, after the word “revision,” the following words be inserted - “shall sit at such times and places as may be directed by the Minister, and.”
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 42 -
The returning officer for the division shall give at least 30 days’ public notice, by advertisement in some newspaper circulating in the division, of the times and places fixed for the sitting of the court of revision, and of the lists for specified polling places to be revised at the respective sittings of the court.
Mr. WATSON (Bland).- This clause provides that the returning officer for the division shall give at least 30 days’ notice by advertisement “in some newspaper circulating in the division.” I do not think that that notice would be of any value, because in some cases the divisions are so large that no one newspaper circulates generally throughout them. In my own electorate, for instance - and the same remark applies to the neighbouring electorate represented by the Minister for Home Affairs - there is no one newspaper which circulates throughout the whole division. It is only a proper thing that in a large division like that there should be a number of notices. They need not contain the whole roll. That would be needlessly extravagant. The advertisements are needed only to draw attention to the fact that rolls are open for inspection at certain places, and they need not exceed an inch in length. Theycould be inserted for 2s. aninch. There are about fifteen newspapers circulating in my electorate, and the whole cost of inserting such advertisements in them would only be about 30s.
– They charge the Government more than 2s. an inch.
– Not the country newspapers. In New South Wales our Government Printer, who controls the. newspaper advertising, exercises strict control in this direction, and if the Commonwealth Government had such an officer, the cost would not be excessive. I move -
That, after the word “ newspaper,” the words “or newspapers “ be inserted.
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 44 agreed to.
Postponed clause 45 -
Notice of everyobjection stating the grounds shall be served upon or sent by post by the returning officer to the person affected.
Amendment (by Sir William Lyne) proposed -
That, after the word “ post,” the words, “ as a registered letter “ be inserted.
Mr. WATSON (Bland).- Although we are dealing with clause 45, I wish to ask the Minister to consider the time allowed under clause 44. In some of the large electorates of Queensland and Western Australia, I understand that it will be very difficult to get the notices out if the objections are to be lodged ten days before the date fixed for the sitting of the revision court. Would it not be wise to extend that time ?
– I will recommit the clause.
Mr. CROUCH (Corio).- It will be remembered that I asked that three days’ notice should be given of every objection. A man is entitled to have some little time in which to attend the court. It must be remembered that this matter will not be in the hands of the Minister, but in the hands of some officer who may be altogether beyond control. I should like to know whether the Minister can provide for this notice in connexion with the amendment he proposes 1
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 67 (Time for altering rolls).
Mr. WATSON (Bland).- The Minister promised, in connexion with this clause, to Consider the advisability of making some provision by which a man could have his name placed on the roll after the issue of the writ for the division, so long as his application was in before the issue of the writ.
– That was the understanding. I may say that I carefully went through, with my honorable colleague’s officers during his illness, every clause that was criticized, and every promise that was made. They consulted with the draftsman, and they have furnished my honorable colleague with the result of their deliberations.
– I propose to omit the words, “ Save as before provided in the case of transfers.”
– That does not meet my point. I am sure the Minister will see the wisdom of making some such provision as I suggest, because in an amending Act which he. carried through the State Parliament of New South Wales, he inserted a similar provision.
– This is the first time the matter has been brought under my notice, and I shall have the clause recommitted to deal with it.
– I should like the Minister to bear in mind when considering this clause that we have struck out all provision for voters’ certificates. If we amend the clause by omitting the words, “ Save as before provided in the case of transfers,” it is quite possible that a considerable number of persons will be disfranchised, because further on we make provision for asking whether they still hold their qualification. If they have shifted from one street to another they will not hold the qualification they held originally.
– We propose to provide for a continuous franchise.
– Unless the matter is dealt with in this clause or in the one of which the honorable member for Bland has given notice, it is possible that in some city electorates, such as Northern and Southern Melbourne and Yarra, a considerable percentage of electors may be disfranchised.
Clause agreed to.
Postponed clause 70 agreed to.
Postponed clause 72 -
Revision courts shall be constituted by a police stipendiary, or police magistrate, or two or more justices of the peace, having jurisdiction in the place where a revision court is held.
Amendment (by Sir William Lyne) agreed to -
That the words “having jurisdiction in the place where the revision court is held “ be omitted, with a view to insert in lieu thereof the words “ authorized by the Governor-General to sit ils members of a revision court.”
Clause, as amended, agreed to. Postponed clause 86 -
If any objection is not established, the court may award to the person objected to a reasonable sum to be paid by the objector for costs, but no costs shall be awarded against an officer if the court is satisfied that in objecting t the officer acted in good faith and on reasonable grounds.
Amendments (by Sir William Lyne) agreed to -
That the word “reasonable,” line 3, be omitted. That the words “not exceeding five pounds 5 be inserted after the word “sum.”
Clause, as amended, agreed to.
Postponed clause 113 (Marking of postal vote).
Mr. WATSON (Bland).-! understand that the Minister intended to bring this clause into conformity with the decision of the House respecting the contingent vote by eliminating the provision for placing numbers opposite the names of candidates.
– I am not now ready to proceed with this clause and several others which have been postponed, but I desire to deal with amendments which are necessary in the schedule.
Clause further postponed.
Schedule consequentially amended.
– I desire to draw attention to one matter connected with form B. Under this form the applicant for a vote is required in his application amongst other things to give his usual signature. Persons who are blind, do not write their signature in the ordinary way, but use the “ Braille “ characters. I desire to know whether applications signed in that way will be accepted. Several blind persons have spoken to me on the subject, as they are anxious that they shall not be disfranchised on this account as they have been in some of the States.
– There is provision in the Bill to meet that difficulty.
– I am satisfied so long as the Minister assures me that persons who are blind will not be disfranchised if they do not sign this form in the ordinary way.
– I notice that there is nothing in form B requiring the applicant to make any statement as to the period during which he has resided in the division for which he claims to vote. He must state that he has resided for a certain time in Australia, but he may have been in a particular division for only five minutes,’ and still be competent to comply with the requirements of this form. In New South W ales we require a voter to have been resident for a month in a particular electorate, and for twelve months in the State. Under this Bill six months residence in the Commonwealth is required, and I think we should require some reasonable period, extending to a few weeks or a month, of residence within a particular division. “We have provided for a month in connexion with transfers, and I think it is reasonable that an applicant for a vote should have resided for at least a month in the division for which he claims to vote.
Mr. DEAKIN laid on the table
Copies of correspondence between the Govern’ ments of the States and the Acting Prime Minister with regard to the Bonuses for Manufactures Bill.
Order of Business - Painting of Telegraph Poles - Importations o*Chinese Sugar - Fodder Duties - Pearl Fisheries.
– I move -
That the House do 11OW adjourn.
I may inform honorable members that we propose to go on with the Electoral Bill tomorrow, and after we have disposed. of that measure we intend to deal with the Bonus, for Manufactures Bill.
– When will theTariff be considered 1
– Not before Friday or Tuesday.
– Last year the Government afforded employment to a large number of painters in “Victoria by putting in hand the work of painting telegraph poles. I asked the PostmasterGeneral a few days ago to push on with this work again, and he promised to do what he could. I am sorry to say, however, that no move has yet been made, and I hope that the Government will see what can be done. Another matter of still greater importance is that of the increased importations of foreign sugar into the Commonwealth. The manager of the Yarraville Sugar Mill has intimated that he will not be able to employ a considerable number of his hands for more than half-time. This is due to a large increase in the importations of Chinese sugar. The Customs returns show that during the last twelve weeks 35,000 cwt. of Chinese sugar, of the value of ?28,893, has been imported into Victoria alone. I understand that the sugar industry is expanding considerably in China, and our imports have undoubtedly been very largely increased. We imported ?6,000 worth in April, ?9,000 worth in May, and 13,000 worth in June.
– That is all paying duty.
– Yes ; but that does not alter the fact that it is displacing our locally refined sugar.
– We cannot help that.
– Yes, we can. Cannot the Government increase the duty? Surely the honorable member does not contend that the present duty of £6 per ton should be adhered to if it proves insufficient to keep out Chinese-grown sugar?
– The present duty is quite high enough for the consumers to pay.
– The honorable member would not be content if Chinese products were to come into competition with those in which he is particularly interested. I hope that the Government will give their attention to this matter, because it is one of great importance.
– Ithink the honorable member for Melbourne Ports is quitewrong in statingthattheseimportations are interfering with our local growers. It must be evident to him that the jam manufacturers in Australia cannot carry on an export trade, such as we all desire to see, unless they are able to obtain drawback upon the sugar they use, and they must import sugar in order to secure the refund of the duty.
– The sugar to which I refer is being used for ordinary consumption - the grocers are advertising it for sale.
– I think the honor able member will find that the great bulk of it is being used by jam manufacturers, with a view to obtaining drawback upon the sugar used in the manufacture of the jam which they export, though some is, no doubt, required to make up the shortage of our own production. If the Australian sugar producers cannot compete under the operation of a duty of £6 per ton, they cannot expect the people to submit to a heavier burden.
– I understand that the Acting Prime Minister has laid upon the table a paper having reference bo certain negotiations between the Federal Government and the States Governments in regard to the remission of the fodder duties.
– The paper laid upon the table has reference to the Bonus Bill.
– I did not catch precisely what the Acting Prime Minister said, but inferred that the document related to correspondence of the nature I have indicated.
It would be well, I think, if the right honorable gentleman gave the House some information in regard to the matter I have mentioned. It is known that in this connexion there have been negotiations between the Federal Government and the Government of New South Wales. Some time ago New South Wales sent her AttorneyGeneral with another high official to confer with the Commonwealth Government, with a view to arriving at some understanding concerning the policy to be pursued; but, so far, nothing has been done, and the drought over the greater area of that State is as severe to-day as when the negotiations were entered upon, whilst the outlook is very much blacker. The general impression is that the non-suspension of the fodder duties is entirely due to the attitude taken up by the Commonwealth Government. It is very advisable, therefore, that the Acting Prime Minister should make known the exact position, so that the people may know who is to blame, if blame be attachable to any one.I hold in my hand a communication which appeared recently in the Sydney Evening News, and which is signed by Mr. Myles McRae, who says -
This week, unfortunately, records the second shipment of turnips and mangolds that arrived in Port Jackson from New Zealand, but have never been landed, the consignors absolutely refusing to pay the prohibitive duty of 45s. per ton, preferring to bring them back or throw them overboard into the ocean. The latter course must have been adopted, as they are selling in Canterbury, where thousands of tons could be obtained, at 10s. and 12s.6d. per ton.
He goes on to point out how valuable this feed would beat the present time for starving stock, and also that the duty charged represents 400 per cent. upon its original cost. It is, therefore, very advisable that the Government should intimate whether any understanding has been arrived at as the result of the negotiations which were entered upon.
– I desire to know when we are likely to obtain the report of the special commissioners upon the pearl fisheries question, and also whether any further exemptions are being issued to the owners of pearling vessels under the Immigration Restriction Act.
. -(In reply.) - The Postal department has placed on the Estimates a sum of money for painting the telegraph poles referred to by the honorable member for Melbourne Ports, but the House has not. yet had an opportunity ot considering those Estimates, and consequently no authority exists for- spending the money. As, however, the work is of an ordinary nature, a request is being mode to the Treasurer for an advance so that it may be proceeded with. The question of the introduction of Chinese sugar is receiving attention. The Minister for Trade and Customs is inquiring into the circumstances which have led to its importation, and he will be able to speak upon the subject better than I can. As I understand it, the complaint of the honorable member is that this sugar is imported in a refined state. There has been no fresh correspondence between the Federal Government and the Government of New South Wales or any other State in reference to the fodder duties, though an intimation was recently received from the Western Australian Government expressing sympathy with the droughtafflicted districts, and the hope that some means might be devised to assist them. The last occasion upon which the Government entered into any negotiations in regard to this matter was when the AttorneyGeneral of New South Wales, Mf. B. R. Wise, visited Melbourne and consulted with us. If I. remember aright, he was satisfied that the position which we took up was constitutional, and that it was impossible for us to discriminate between States. Consequently, the question of the remission of the duties in the two States most seriously affected rested with those States themselves. Since then I understand that the States in question have taken what action they deemed to be necessary. They have endeavoured - although not directly - to afford a rebate upon* the duties paid. They have made reductions iri railway and other charges which they consider more than equivalent to the duty paid. Of course that is a matter entirely within State jurisdiction. My information is only that which any other -person in the community can acquire. The Commonwealth Government did all in their power–
– Not all in their, power.
– Yea, all. In our last -communication we offered to assist the States in every possible way.
– The States cannot remit duties ?
– They cannot remit duties, but they receive all the money collected under the operation of the fodder duties, and can dispose of that money as they please for the purpose of mitigating suffering. They cannot remit those duties, neither can they make a direct rebate. But the States can take all the money they receive, and disburse it for the benefit of the people who use the fodder on which the duties are paid, and by that means the same result is arrived at as if no duties had been levied. The schedule of Judge Dashwood’s report On the pearl fisheries has reached me within the last few days, but not the report itself, which; I fancy, is being sent on by. specially registered letter. The report of the police magistrate at . Broome has been received, and will be sent to the Government Printer. The exemptions granted by the Prime Minister have expired, and no more will be granted.
Question resolved in the affirmative.
House adjourned at 10.51 pan.
Cite as: Australia, House of Representatives, Debates, 29 July 1902, viewed 7 November 2016, <http://historichansard.net/hofreps/1902/19020729_reps_1_11/>.