House of Representatives
2 July 1903

1st Parliament · 2nd Session



Mr. Speaker took the chair at 2.30 p.m., and read prayers.

page 1711

PETITION

Mr. GLYNN presented a petition from the South Australian Chamber of Commerce, ten corporations and district councils, tho representatives of four banks, the A.M.P. Society, one legal association, the Stock Ex changers leading firms, and othor residents of South Australia, numbering in all 2,240, praying that the High Court might be constituted of the Chief Justices of three of the States ; and that the Judiciary Bill might be amended accordingly.

Petition received and read.

page 1711

QUESTION

ELECTORALROLLS

Mr MAHON:
COOLGARDIE, WESTERN AUSTRALIA

– I find that there is a great discrepancy between the new Federal rolls for Western Australia and the State rolls which were compiled on 31st December last. The complaints made by representatives of other States are as to the difference between the census figures and the number of electors on the Federal rolls ; but in this case the discrepancy is between the State rolls recently compiled and the Federal rolls. In the electorate of South Perth, a district in which names of electors can easily be collected, there are 1,937 less electors upon the Federal rolls than upon the State rolls. I desire to ask the Minister for Home Affairs if he has any information on the subject.

Sir WILLIAM LYNE:
Minister for Home Affairs · HUME, NEW SOUTH WALES · Protectionist

– I have not received the information to which the honorable member refers, and I shall not be able to check the differences between thenewly- compiled Federal rolls and the State rolls collected in December last, until I have the full details. I can, however, inform the honorable member that the Federal rolls are complete, and show a total of 116,000 electors. Yesterday a telegram was sent to the Electoral Commissioner, giving him the quota, and instructing him to proceed at once with the division of the State into electorates.

page 1712

QUESTION

INTERJECTIONS AND CONVERSATION

Mr SPEAKER:

– Order ! In view of the confusion that sometimes exists in the House, I really must direct the attention of honorable members to the fact that interjections across the chamber, and conversations having no reference to the subject upon which an honorable member is addressing the Chair, are distinctly disorderly, and that I shall have to take notice of them unless they are discontinued.

page 1712

QUESTION

TELEPHONE GUARANTEES

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I desire to know whether the Prime Minister has yet received any information from thePostmaster-General concerning telephone guarantees, regarding which I asked him a question a day or two ago?

Sir EDMUND BARTON:
Minister for External Affairs · HUNTER, NEW SOUTH WALES · Protectionist

-The particulars desired by the honorable member have not yet been sent to me, but, as I stated before, I shall obtain them as soon as I can.

page 1712

PAPERS

Sir EDMUND BARTON laid on the table the following papers : -

Correspondence and papers relating to agreements between the States of New South Wales, Victoria, South Australia, and Tasmania, and the Eastern Extension Company, and relating to an agreement between the Government of the Commonwealth and the said company.

Correspondence between the Secretary of State for the Colonies, the Government of the Commonwealth, and the Government of the State of South Australia, with reference to the case of the ship Vondel.

Correspondence relating to contracts for the carriage of mails between England and Australia, via Suez Canal.

page 1712

NAVAL AGREEMENT BILL

In Committee:

Sir EDMUND BARTON:
Minister for External Affairs · Hunter · Protectionist

– In order to enable the Bill to be introduced, I move -

That it is expedient that an appropriation of revenue be made for the purposes of a Bill for an Act to approve of an agreement relating to the naval force on the Australian station, entered into by the Commissioners for executing the Office of Lord High Admiral of the United Kingdom and the Governments of the Commonwealth and of New Zealand, and to appropriate moneys for the purposes of that agreement.

Sir WILLIAM McMILLAN:
Wentworth

– I presume that my right honorable friend regards this as a purely formal stage.

Sir Edmund Barton:

– Yes.

Sir WILLIAM McMILLAN:

– I am not sure that it might not have been better for him to take this opportunity to make an explanatory statement, so that honorable members might be better prepared to deal with the Bill when it comes before them. Of course the right honorable gentleman should know his own business best, but I trust that after he has made his explanation on the second reading he will allow a certain time for consideration. I do not know what has become of my parliamentary papers, but none in reference to the naval agreement have reached me.

Sir Edmund Barton:

– I do not propose to move the second reading of the Bill until Tuesday.

Sir WILLIAM McMILLAN:

– I presume that an interval will then be allowed to enable honorable members to consider the explanation given by the Prime Minister. Personally, I have no official information on the subject. I may say that

I agree entirely with the Government proposal, but I think that the fullest possible particulars should be given before honorable members are called upon to discuss the Bill.

Sir JOHN QUICK:
Bendigo

– I may mention that the Printing Committee have recommended that all the papers relating to this subject should be printed, and I would ask the Prime Minister to see that that work is proceeded with, and that the papers are circulated as soon as possible.

Sir EDMUND BARTON:

– I am informed that the papers were circulated several days ago. There is no correspondence to be laid upon the table apart from that contained in the Imperial Blue Book which was laid upon the table at the beginning of the session.

Sir John Quick:

– I merely wished to suggest that the papers should be printed and circulated at once.

Sir EDMUND BARTON:

– They were circulated more than a week ago.

Mr McCAY:
Corinella

– I think that honorable members should have an opportunity of considering the speech of the Prime Minister upon the second reading. I would remind him that he asked honorable members to suspend their judgment with regard to some aspects of the matter until they had heard his statement. I am suspending my judgment accordingly, and I hope that we shall be allowed a few days, indeed, I should say a week, in which to consider the Prime Minister’s speech ; because we really have not time during sitting days to read ahead of the work under consideration. The days upon which Parliament does not sit, when, according to some authorities, honorable members are supposed to be idle, are fully occupied in preparing for the legislative work which will engage their attention at a later stage.

Mr CROUCH:
Corio

– I should like to receive an assurance from the Prime Minister that the resolution before us is absolutely noncommittal. I mention the matter, because I feel justified in protestingat every stage against the proposal to give the provisions of the naval agreement the force of law.

Sir EDMUND BARTON:

– In answer to what has been said, I desire to point out that the papers relating to this matter were circulated not later than the 23rd June - some nine days ago. Of course, cases will always arise in which honorable members do not receive their papers, and I know that it is the habit of many of us to occasionally forget some documents which may have been circulated amongst the great bulk of parliamentary papers. But the papers relating to the proposed naval agreement were circulated in the ordinary way. I would further point out that the proposed agreement has already been the subject of very full discussion out of doors. Not only have many honorable members participated in that discussion, but I myself have done my best to give detailed explanations of its provisions in public. Moreover, on the address in. reply, some honorable members debated the question in a cursory way, whilst others dealt with it much more fully. The matter, therefore, has been the subject of very thorough discussion. Indeed, if I may trespass on the recollection of honorable members, it has been debated quite as much as has any ordinary measure which has come before this Parliament. The second reading debate upon the Bill is not likely to be concluded in one night, and therefore those who wish to speak upon it after Tuesday will have ample opportunity of so doing. Seeing that the papers were laid upon the table on the 26th or the 27th May, and were circulated nine days ago - the Printing Committee having exercised its undoubted powers to order the printing of documents in their regular order - my view is that we ought to proceed to debate the Bill, after I have moved its second reading upon Tuesday next.

Mr Higgins:

– Does the Bill contain anything beyond the agreement?

Sir EDMUND BARTON:

– There is nothing of importance in the Bill that is not contained in the agreement.

Mr McCay:

– But the Prime Minister asked us to suspend judgment until after he had made his second reading speech.

Sir EDMUND BARTON:

– Certainly I did, but in doing so I was asking for the ordinary privilege which any Minister in charge of a Bill is entitled toclaim. My statement clearly did not imply that delay would takeplace after thesecond readingof the measure had been moved. I merely asked honorable members not to commit themselves to a particular course of action until they had heard some argument upon the subject. Seeing that the papers have been laid on the table and printed, and that the contents of the agreement have been thoroughly discussed, all I can do is to adduce arguments in addition to those which I have already put forward. This resolution is simply the ordinary procedure which must be adopted in the case of a Bill involving expenditure. Such measures must be preceded by a resolution in Committee. When we emerge from Committee I propose to introduce the Bill, have it read a first time, and fix the second reading for Tuesday next. I am quite sure that there will be some honorable members who will be ready to continue the discussion on that day, so that no time will be lost, whilst others who wish to speak upon a later date will be able to do so. Inasmuch as the motion relating to the Conciliation and Arbitration Bill cannot be taken until Tuesday, and as that day can be occupied in debating this Bill, it is only fair that it should be so occupied, without prejudice to the rights of speech of any honorable member who may wish to address the House at a later stage.

Sir WILLIAM McMILLAN:
WENTWORTH, NEW SOUTH WALES · FT

– I cannot agree with the principles laid down by my right honorable friend, who is so sound a constitutionalist. Indeed, I am surprised at his attitude. This matter is not constitutionally before the House until the responsible Minister has made his statement in regard to it. No matter what discussion has taken place in. the country - a discussion which occurred before many honorable members had the official documents in their hands - this House has an undoubted right, upon every important measure which is submitted to it by a responsible Minister, to have a full and comprehensive statement of its principles and its contents put before it. I do not think that any honorable member should be forced to deliver himself upon this important subject on the night of the Prime Minister’s statement.

Sir Edmund Barton:

– I do not propose to force anybodv.

Sir WILLIAM McMILLAN:

– I asked my right honorable friend a very simple question. I asked whether, in view of the fact that he did not intend to make his statement at this stage of the proceedings, he would give honorable members an interval for consideration after he had moved the second reading of the Bill ? In view of the immense importance of this subject, which is an Imperial one, and upon which our attitude will be watched at the other end of the world, I think that the proper course to adopt would be for the Prime Minister, when moving the second reading of the Bill, to make as ample and complete a statement as possible, and then postpone its further consideration until another day.

Mr HIGGINS:
Northern Melbourne

– I confess that at first I was inclined to agree with the view entertained by the honorable member for Wentworth, but I understand from the Prime Minister that the Bill merely validates the agreement which has already been circulated amongst honorable members. Although I admit that it is usual upon an important measure to interpose an interval during which honorable members may consider the second-reading speech of the Minister, I would point out that we have all the necessary materials before us if the Bill merely proposes to validate the naval agreement. In view of the Prime Minister’s assurance, I do not think it is unreasonable for him to ask that the debate shall proceed upon Tuesday next. A further delay would be likely to inconvenience the Ministry.

Mr CONROY:
Werriwa

– I think that the Prime Minister has given the very best reason why the debate upon the Bill which is the subject of this resolution should not be proceeded with on Tuesday after the right honorable gentleman has moved its second reading. He has just stated that the discussion of a matter of such importance cannot be finished in a single day. Therefore, honorable members should be allowed an interval in which to consider his speech. I would press upon him the importance of granting an adjournment of the debate for at least twenty-four or forty-eight hours. We cannot anticipate his remarks upon this subject. If he could make a statement now, and foreshadow the substance of his speech upon Tuesday next, we should be in a slightly different position, > and might perhaps be disposed to assist him in endeavouring to continue the discussion of the Bill upon that day. But, whilst Parliament is sitting, it is impossible to consider prospective legislation. Under this Bill we shall be, asked to vote a subsidy of £200,000 for naval defence. I need scarcely point out that that sum may prove altogether inadequate for the purpose if a tariff war is to be entered upon by Great Britain at the behest of Mr. Chamberlain and his party. If a fiscal fight is undertaken, it may lead to an industrial struggle which will involve the Empire in war. Therefore, it might be that honorable members would be prepared to vote for the expenditure of £2,000,000, or, perhaps, £8,000,000 or £10,000,000, to prepare us for the consequences that may result from a tariff war. I will continue my remarks when the standing order which provides that not more than one speaker shall simultaneously address the Chamber is observed.

The CHAIRMAN:

– I observed no interruption. Will the honorable and learned member proceed?

Mr CONROY:

– There are a great many advertisements which direct attention to defective hearing.

The CHAIRMAN:

– I have nothing to do with that matter. Will the honorable and learned member proceed ?

Mr CONROY:

– I am quite prepared to endure the inconvenience caused by the hum of conversation amongst honorable members, but I am not willing to submit to interruption by Ministers. I was pointing out that we might have to consider whether we would not be justified in voting a very much larger sum than is contemplated if an industrial struggle is to be entered upon, and that the serious consequences that might result from the war, which will inevitably follow that struggle, ought to be taken into consideration by us.When honorable members reflect upon those consequences they will see that we have every right to ask the Prime Minister to grant us a sufficient interval in which to carefully consider his speech. I support the request of the honorable member for Wentworth, and if it is not to be complied with, I hold that the Prime Minister should make his statement now.

Mr McDONALD:
Kennedy

– I thoroughly understand that the proper time for honorable members to object to the discussion upon the Naval Agreement Bill being proceeded with is when the secondreading motion is submitted. But I would point out that it might then be too late to adopt that attitude. If the Government insist upon proceeding with the secondreading debate of the Bill after the Prime Minister has delivered his speech, we cannot press the matter to a division, because, by so doing, we should be attempting to take the control of the business out of the hands of the Government. I strongly urge that, inasmuch as it is desirable to get on with the business as quickly as possible, we might have the discussion on the second reading of the Conciliation and Arbitration Bill after the speech of the Prime Minister on Tuesday.

Sir Edmund Barton:

– We can only get leave on Tuesday to introduce that Bill ; we cannot take the second reading on the same day.

Mr McDONALD:

– I take it that with the permission of the House the Conciliation and Arbitration Bill could be introduced to-day if necessary, and advanced another stage on Tuesday. There are many ways which could be adopted, if it is desired to get over the difficulty. It may be that the Government are not prepared to proceed with the Bill, but it is a measure of great importance, on which there will, doubtless, be much discussion, and taking into consideration the fact that the Prime Minister has already dealt with the matter to some extent, it would be unfairto ask honorable members to continue the discussion immediately he has concluded his statement. Honorable members may be prepared with ordinary second-reading speeches, but not with replies to the particular remarks which the Prime Minister may make ; the discussion ought to be adjourned for a day or two in order that the Bill may be given the fullest possible consideration.

Sir EDMUND BARTON:

– Perhaps I may make myself a little clearer by adding a few words. It has been suggested in so many words that the Government wish to force honorable members into discussing the Bill. Nothing is further from the desire of the Government. But it is not right to lay down the principle that because the subject matter of a Bill is of importance, there should in all cases be an adjournment of the discussion. An adjournment depends very much on the stage to which the discussion of the principle involved in any particular measure has been advanced. If discussion has reached an advanced stage - that is to say, if it has been general and public to a large extent - there is not the same reason for asking for an adjournment that there otherwise might be. Of course the Government cannot listen to any proposal to take the conduct of business out of their hands, but I suggest that, without any forcing at all, those who are ready to continue the second reading debate on Tuesday may be permitted to make their speeches. If nobody is ready to go on, nobody will be forced to do so, and there will be an adjournment of the debate ; but if anybody is ready, why should there be any organized attempt - though I do not think there is any such attempt - to prevent an honorable member from delivering his speech if he desires to do so? That is the perfect understanding so far as I am concerned, and it does not alter one jot anything I had already said. I shall move the second reading, and those honorable members who are ready and willing to proceed with the debate may then make their speeches. When we come to a stage at which no honorable member is ready to continue the debate, and a desire is shown for more time for consideration, then an adjournment may be granted. To ask any honorable member to speak unprepared is far from my thoughts, and I do not intend to take any such course. The Bill consists simply of the. short title, a ratification of the agreement in so many words, and a clause appropriating the necessary money, the rest being the schedule containing the agreement.

Mr Glynn:

– Can the Prime Minister say whether the White Book, which has not yet been published, contains any reference to the naval agreement ?

Sir EDMUND BARTON:

– I do not think there is any such reference in the White Book. As I have previously informed the honorable and learned member, I have already tried to obtain leave to publish the White Book, but I am met with what I think must be conceded to be the reasonable objection that where a discussion has taken place on the condition that it is not a public discussion, there must be the consent of all concerned to make the report public. I am very willing to have every bit of the White Book published, but I cannot have it published in defiance of the objection which has been already acceded to by the President of the Conference, the Secretary of State for the Colonies. Let me repeat that there will be no attempt to force honorable members to continue the discussion on Tuesday. Those who are ready and willing may speak, but when it is found that no one is ready to continue the discussion, unless he is reluctantly driven to do so, without preparation, I must give in to an objection raised on that score, and consent to an adjournment. I hope that on that understanding the Bill may be considered on Tuesday.

Mr Conroy:

– I may say that the explanation of the. Prime Minister quite satisfies me.

Question resolved in the affirmative.

Resolution reported and adopted.

Bill presented (by Sir Edmund Barton) and read a first time.

page 1716

EASTERN EXTENSION TELEGRAPH COMPANY’S AGREEMENT

Sir EDMUND BARTON:
Protectionist

– I beg to give notice that, on Tuesday next, I shall move -

That this House authorizes and ratifies an agreement entered into between the Government of the Commonwealth and the Eastern Extension Company, a copy of which was laid on the table of the House on Thursday, 2nd July.

That this resolution be communicated to the Senate, with a request for its concurrence therein.

By way of explanation, I may mention that I am not able to proceed with the motion until a dispatch, of which I have been informed, has been received from the Colonial Office. Under the circumstances, I may not be able to go on with the motion on Tuesday.

page 1716

JUDICIARY BILL

Reports adopted.

page 1716

HIGH COURT PROCEDURE BILL

Motion (by Mr. Deakin) proposed -

That the Bill be now recommitted to a Committee of the whole House for the reconsideration of clauses 1, 2, 3,8, 14, 21, 32, part V., the schedules, and for the consideration of a new clause before clause 17.

Mr CROUCH:

– I should like to see clause86 recommitted. Can I move the recommittal on the third reading?

Mr SPEAKER:

– An honorable member always has an opportunity of moving the recommittal of a Bill at that stage, but he must do so before the motion for the third reading is put from the Chair.

Question resolved in the affirmative.

In Committee -

Clause 1 verbally amended and agreed to.

Clause 2 verbally amended.

Amendment (by Mr. Deakin) agreed to -

That the following words be added “ ‘Justice’ in the expressions ‘Court’ or ‘Justice’ or Court or a Justice ‘ means a Justice of the High Court sitting in Chambers.”

Clause, as amended, agreed to.

Clause 3 negatived.

Clause 8 (Removal of causes from one registry to another).

Mr DEAKIN:
AttorneyGeneral · Ballarat · Protectionist

– I move -

That the word “Judge” be omitted with a view to insert in lieu thereof the word “ Justice.”

In the Judiciary Bill we have confined the application of the term “ Judge “ to J udges of the Supreme Courts of the States, and have used the word “ Justice “ to signify the Justices of the High Court. I ask that the carrying of this amendment shall be regarded as an instruction to the Chairman to make a similar amendment wherever necessary.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 14, 21, and 32 verbally amended and agreed to.

Clause 83 (Suits by Commonwealth).

Mr DEAKIN:

– I propose to ask the Committee to negative clauses83 to 89, which constitute Part V., as they have been transferred to the Judiciary Bill.

Mr CROUCH:
Corio

– I did not know that it was intended to transfer these clauses to the Judiciary Bill ; but, as this is my last opportunity to give the Committee an opportunity to do an act of simple justice to men who at the present time are without a remedy, I move -

That all the words of the clause be omitted with a view to insert the words - “ No person shall be incapable of bringing an action against the Commonwealth or a State only because his action arose in the course of his duty as a member of the naval and military forces.

It is a remarkable thing that because a man happens to be a member of the military or naval forces of the Commonwealth, he cannot successfully prosecute in the law courts a claim against the Department in which he serves. Only three weeks ago in Sydney the leader of the Opposition, when appearing for a defendant, found that his client could not maintain his rights upon a contract admitted by the Crown, because he was a soldier, and the contract had arisen in connexion with his position as a soldier. Last night in speaking upon this matter, I referred from memory to the case of Gillespie v. The Queen, which was decided in the Supreme Court of Victoria in December, 1896. Ever since that time, I have been trying to obtain justice for the petitioner and a number of others interested with him, but without avail. I hope, however, that this Commonwealth Parliament, “ broad based upon the people’s will,” will see that justice is not denied to men in a particular service upon purely technical grounds. I brought the matter forward when the Claims Against the Commonwealth Bill was under consideration, and the Attorney-General then asked me to give him, in writing, a statement of the case I did so, and received, of course, a courteous acknowledgment of my letter, but nothing more. If the honorable and learned gentlemen, however, will not accept my amendment, I must ask the Committee to pass it in spite of him. I am unable to give the details of the recent Sydney case, but it is practically on all-fours with the Victorian case. The heading of the case in the Argus LawReports, . vol. 2, contains the following : -

The petitioner, a soldier in the Victorian Military Forces, accepted an offer, under a General Order, to resign on receipt of six months’ “salary.” Held that upon the wording of the offer, “salary” included the 3s. 3d. per diem “ pay” to which the soldier was entitled under the regulations of 22nd June, 1891, and also the 9d. per diem to which ho was, under such regulations, entitled “in lieu of rations.”

But Held that agreements between Her Majesty and Her Military Forces in Victoria are not enforceable against Her Majesty, and that the petitioner was consequently not entitled to succeed in proceedings to recover the 9d. per diem in lieu of rations, which had been excluded in the computation of the six months’ “salary.”

The Chief J ustice, after hearing the evidence which was taken during the trial, which lasted a couple of days, said that no doubt the bargain was made that the men concerned should receive 4s. per diem, and not 3s. 3d. He proceeded, however, to quote the rule in the case of Mitchell v. The Queen, which, he said, laid it down in language as general as could be that -

No engagement, past, present, or future, in respect to service as a soldier, by a soldier, with Her Majesty is enforceable against Her Majesty. Anything that Her Majesty appears to promise to a soldier is merely a matter of her bounty to give or withhold as she thinks fit. Her Majesty b eing naturally disposed to do what is right, and to refrain scrupulously from doing what is wrong, the anticipation is that Her Majesty will keep her word, out she cannot be compelled to do so.

Unfortunately for the men, Her Majesty’s Ministers in Victoria were not disposed to do what was right, and they have got nothing. Last night the honorable and learned member for Indi stated in reference to this case that he had never known an instance in Victoria in which the Government hod refused to recognise an equitable claim.

Mr Isaacs:

– No. What I said was that I did not know of a case in which the Government had refused to “recognise a judgment given against the Crown.

Mr CROUCH:

– The Attorney-General of Victoria, when this case was decided, was the honorable and learned member himself, and he was present during the hearing. But, because of the severe economy then being practised, the claim was not allowed, and, although the Chief Justice had stated that the men were entitled to 4s. a day, they could not get their rights.

Mr Glynn:

– Was there anything in the regulations which prevented them from getting the money 1

Mr CROUCH:

– No. The Chief Justice said that in equity and at law the men were entitled to the 9d. a day extra which they claimed, but he said -

Even if there were a consideration in the ordinary legal sense of the word, still the offer of acceptance would not constitute an agreement, which Her Majesty could be compelled to observe, for the simple reason’ that Her Majesty is not compellable to- observe any contract between herself and her soldiers.

He concluded his judgment with the remark that -

The agreement was that the petitioner was to receive 4s. a day for the six months, but it cannot be enforced by him. There must, therefore, be judgment for Her Majesty.

If eyer there was a case in which wrong was done under cover of law, this is such a case. Wrong has been done to these men, and justice has been denied them. I am sorry, in urging the claim of these men, that I am the representative of the constituency in which Queenscliff is situated, because it may be objected that my action is an interested one. I assure honorable members, however, that I am bringing the case before the Committee simply because I know the facts, and because I know how inequitably the men of our military forces are treated. I think, however, that I shall not appeal in vain to honorable members for justice, even though the AttorneyGeneral may not be willing to accept my amendment.

Mr DEAKIN:

– I am very sorry to point out that the honorable member cannot introduce this clause, as it is neither within the. title nor the order of leave of the Bill, intended to regulate the practiceand procedure of the High Court.

Mr Glynn:

– But Part V. deals with therights of parties.

Mr DEAKIN:

– It is provided that in any suit to which the Commonwealth or a. State is a party, the rights of parties shall’ as nearly as possible be the same ; but that confers no new rights. The honorablemember has shown by his arguments that he is proposing to confer a new right. Itwas owing to the force of the arguments, addressed to the Committee with referenceto Part V. of the Bill by the honorable and learned member for Northern Melbourne and the honorable and learned member for South Australia, Mr. Glynn, that some doubt was. raised as to whether one or two of the clausescame within the scope of the measure, and partly for that reason, and partly becausethey can be more conveniently associated with provisions of the Judiciary Bill, they have been embodied in that measure, which confers powers. A provision such as that, proposed by the honorable and learned member for Corio might be inserted in theDefence Bill or perhaps in the Judiciary Bill, but it could not well be included within a Bill dealing solely with the machinery of the High Court. I therefore suggest tomy honorable and learned friend that however great the merits of his proposal may be, and however marked the grievancewhich he seeks to redress, he must necessarily postpone his proposal.

Mr. CROUCH (Corio). - Clause 86 is still a part of the Bill, and I contend thatas it deals with the rights of parties, I am quite in order in proposing my amendment.

Mr ISAACS:
Indi

– So far as I havebeen able to make up my mind, I feel very strongly disposed to agree with the honorable and learned member for Corio on themerits of the case he has submitted. I donot see any reason why a soldier should not have his rights conserved in the same way as other people, but I do not think that wecan deal with the subject in this Bill. Therights of soldiers should be properly denned in the Defence Bill, and the honorable and learned member will have an opportunity of” making his proposal when that measurecomes under consideration. He would not carry the matter any further if hesucceeded on this occasion. To enact that the fact of a man being a soldier shall not take away from him any rights will not- confer any new rights upon him. At present a soldier has no rights of contract with the King. It has been decided in Victoria that a soldier is bound to serve for the time for which he Ls engaged, but that he can be discharged whenever the Crown thinks fit, and that any regulations made as to his rate of pay do not amount to a contract that he shall receive that rate. The amendment proposed by the honorable and learned member would really be an anomaly in a Bill relating to the procedure to be followed in the Federal High Court in respect to rights which exist independently.

Mr Crouch:

– Why could not the provision be inserted in the J Judiciary Bill 1

Mr ISAACS:

– I do not think that even that would be a proper place, because that measure merely confers jurisdiction.

Mr GLYNN:
South Australia

– I think the honorable and learned member for Corio would do well to withdraw the amendment, and endeavour to effect his object by inserting a provision in either the Judiciary Bill dr the Defence Bill. He would receive a large amount of support on principle, but there are some doubts/ beyond those indicated by the honorable and learned member for Indi as to whether he could accomplish his object by means of the amendment. There is an important distinction between the Commonwealth and the Executive in regard to the military. I do not know whether tho term Commonwealth, even in the Judiciary Bill, would cover the King in the case of the defence forces of the Crown, because the command of the forces does not rest in the Commonwealth, but in the King.

Mr. CROUCH (Corio). - I do not caro how my object is achieved, but I desire to put the matter to the test. I have tried time after time to place soldiers in what I conceive to be. a proper position with regard’ to their rights of action. I brought up the matter when the Defence Bill was under consideration, and also when the Judiciary Bill was before us, and I desire to see the provision inserted somewhere. I would ask the Minister for Defence whether he would agree to insert such a provision in the Defence Bill ‘(

Sir John Forrest:

– No, I cannot promise that.

Mr. HIGGINS (Northern Melbourne).T am sure that the honorable and learned member for Corio desires to submit” a -straight-out issue to the House upon this matter, but if he persists in his amendment the question will be complicated by doubts as to whether this is the proper place in - which to make the provision. I would strongly urge him to withdraw it for the present.

Mr O’MALLEY:
Tasmania

– If the honorable and learned member for Corio allows the matter to rest at present, he may be told by honorable and learned members, when be seeks to effect his object in the Defence Bill, that he made a mistake by not pressing his amendment at this stage.

Mr. CROUCH (Corio). - I shall accept the suggestion of honorable and learned members, and, after their promise of support, beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause negatived.

Clauses 84 to 89 negatived.

Schedule. - Part ii. (Appellate jurisdiction.)

Section I., rule 4. - The notice of appeal must be served within the times following, respectively, that is to say : -

The said periods shall bo reckoned from the date when the judgment or order was signed, entered, or otherwise perfected, or, in the case of - the refusal of an application, from the date of the refusal.

Amendment (by Mr. Deakin) agreed to.

That the words “ signed, entered, or otherwise perfected” be omitted, with a view to insert in lieu thereof the word “pronounced.”

Rule 7. ^Notice of appeal from a final judgment shall be for tho first sitting of a Full Court held after the expiration of forty-two days from the institution of the appeal, unless the respondent consents to toko shorter notice. . . .

Amendment (by Mr. Deakin) agreed to.

That the words “ forty-two “ he omitted with a view to insert the words “ twenty -one.”

Section iv., rule 2 - Leave to appeal to the High Court from any such judgment may be given by the High Court upon motion ex parte, and on such conditions, if any, as the Court thinks fit. On the hearing of the motion, such evidence shall be given on affidavit as tho High Court, requires. An order for leave to appeal may be rescinded on the motion of any respondent.

Amendments (by Mr. Deakin) agreed to-

That after the word “ leave,” line lj the words “ or special leave “ be inserted ; that after the word “judgment,” line 2, the words “where leave or special leave is required “ be inserted ; and that after the word “ leave,” line 6, the words “ or special leave” be inserted.

Rule 4, of section iv., consequentially amended.

Appendix.

Amendment (by Mr. Deakin) agreed to-

That Form 10 be omitted.

Second Schedule.

Amendment (by Mr. Deakin) agreed to-

That the second schedule be omitted.

Mr DEAKIN:
Protectionist

– I desire to insert a new clause under the heading of “ Evidence,” to precede clause 17, to which the honorable and learned member for Northern Melbourne called attention last night. I therefore move -

That the following new clause be inserted : - “16a. The Justices of the High Court or a majority of them may make rules of court for regulating the means by which particular facts may be proved and the mode in which evidence thereat may be given. “

Proposed new clause agreed to.

Bill reported with further amendments ; reports adopted.

page 1720

SPECIAL ADJOURNMENT

Sir EDMUND BARTON (Hunter-

Minister for External Affairs). - I move -

That the House, at its rising, adjourn until Tuesday next.

I understand that the operations of the Treasurer will be seriously inconvenienced if the Supply Bill is not finally passed to day. That measure has not yet been fully dealt with by the other Chamber, if I may mention its sacred precincts, and it will be necessary, perhaps, for you, Sir, to take the chair at a later stage, in order that the message may be received, and the authorization for the payments to which it refers may bo completed. Owing to the praiseworthy expedition with which matters have been dealt with this week, the business upon the notice-paper has been cleared off, and, therefore, I ask the House, at its rising, to consent to an adjournment until Tuesday. I understand that there is no objection to that proposal.

Sir EDMUND BARTON:
Protectionist

– Yes. I ask honorable members who can make it convenient to remain, to do so, in order that there may be a quorum present to receive the Message relating to that measure from the other Chamber.

Question resolved in the affirmative.

page 1720

SENATE ELECTIONS BILL

Bill received from Senate, and (on motion by Sir Edmund Barton) read a first time.

House adjourned at 6.7 p.m.

Cite as: Australia, House of Representatives, Debates, 2 July 1903, viewed 7 November 2016, <http://historichansard.net/hofreps/1903/19030702_reps_1_14/>.