2nd Parliament · 3rd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– I wish to know from the Prime Minister if he will afford the House an opportunity to deal with the Federal Capital question before the close of “the session?
– If possible; but within the last two days a request has come from certain honorable members, asking for an opportunity to visit another site.
– Is that site Albury ?
– No, Tooma. I understand that an invitation is coming from Albury. The request to which I refer is being considered ; but if we wait until the advocates of all the eminently admirable sites have been satisfied, the inquiry will, I fear, have been too prolonged to allow us to settle the question this session.
– In view of the declared urgency of the Government’s preferential trade proposals, will the Prime Minister make available to honorable members, without delay, all information, within reason, of an authoritative character bearing on them? I understand that they are to be debated to-morrow.
– I doubt if the table of the House would bear all the information obtainable on the subject, but the statistical and other information necessary to throw light on our proposals is being prepared, and will be made available as soon as possible.
– I am surprised to hear that the preferential trade proposals are to be debated to-morrow. I understood that the Tariff alterations were to be considered then. Will the Prime Minister indicate definitely the course of business, so that we may come prepared to deal with the question put before us ?
– We shall to-night dispose of as many of the measures on the paper as we can deal with, and to-morrow the first subject for discussion will be the proposals of the Tariff Commission in regard to agricultural implements. When that subject has been dealt with, the New Zealand treaty, and the preferential proposals, will follow. That, I think, will be more than enough to occupy us this evening.
– Does the Prime Minister intend to deal also with the Tariff Coramission’s report on harvesters?
– Yes. Those proposals arc included in the term “ agricultural implements.”
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are as follow: -
– I move -
That the Bill be now read a second time.
There are three measures on the paper termed, for’ technical reasons, alterations of the Constitution, though it is doubtful if any of them really deserves that serious title. The only proposed alteration which would have immediate effect, if agreed to by Parliament and approved by the voters at a referendum at the next election, provides that the date at which senators shall commence their term of office shall be altered by six months, in order to permit, under normal conditions, the election of members to both Houses to be held in the autumn instead of, asnow, in the spring. The second may foe termed an enabling alterations If it were approved, a future Parliament would have power to pass an Act for the taking over by the Commonwealth of the whole of the debts incurred by the States up to the present time, whereas now we can take overonly such debts as were incurred prior to Federation. The Bill of which 1 have moved the second reading also provides for an enabling alteration. Hitherto the Commonwealth has walked in financial fetters, which were deemed necessary prior to the complete union and fusion of interests to which we are still looking forward, the chief restriction being that imposed by section 87 of the Constitution, generally referred to as the “ Braddon blot.” The terms of that section are that -
During a period of ten years after the establishment of the Commonwealth -
That is, until the end of 19 10 - and thereafter until Parliament otherwise provides,’ of the net revenue of the Commonwealth from duties of Customs and of Excise, not more than one-fourth shall be appliedannually by the Commonwealth towards its expenditure. The balance shall, in accordance with this Constitution, be paid to the several States.
While that section has force, only onefourth of the revenue raised from duties of Customs and Excise is at the disposal of the Commonwealth, the remaining three-fourths having to be distributed among the States. But if this proposed alteration is agreed to by Parliament, and sanctioned by the people, our next Parliament may impose what are termed in the Bill “Special duties of Customs.” These duties would be special in the sense that they would be imposed for a particular purpose. Should the proposed alteration be sanctioned, and should the next Parliament think fit to take advantage of it, special duties of Customs and Excise may be imposed, the whole of the revenue from which could be devoted by the Commonwealth to any special purpose.
– Could not the whole of the Excise and Customs duties be regarded as special ?
– The proposal is. to leave the existing duties as they stand.
– But it will be possible to reduce them, and to substitute special duties.
– It has always been; still is, and always will be, possible to reduce duties. In the memorandum submitted by the Treasurer, he pointedout that under the Constitution, for every £1,000,000required by the Commonwealth, £4,000,000 has to be raised, and that if any sum is wanted for old-age pensions, defence, immigration, or other specific purpose, Customs and Excise duties must be imposed returning four times the amount to be used. It is part of the scheme of the Treasurer that these special duties should be levied after 1910. As he terms it, they will be “ear-marked” for special purposes. Under his proposal no alteration of the Constitution would be required, because at the termination of the next Parliament, presuming it to exist for the full term of three years, section 87 of the Constitution will have ceased to operate, and Parliament will be able to make any provision it pleases in this regard. Consequently, the whole effect of my proposed amendment of the Constitution is to ante-date by three years the power which the Commonwealth Parliament will possess after1910. The present proposal would not be submitted if in the judgment of the Ministry circumstances did not justify them in asking that the power to which I have referred should be conferred upon the next Parliament as soon as possible. We specially have in view the necessity of establishing upon a Federal basis old-age pensions suchas are provided for at present inonly two of theStates.
– The Treasurer stated that he did not want to levy special duties for special purposes until1910. Why does the Prime Minister now propose a change ?
– The Treasurer was speaking only with regard to our general revenue and expenditure for the year, and not in reference to the old-age pension scheme. The proposal for old-age pensions is several years old, but the scheme ofmy honorable colleague necessarily dealt with the ordinary finances of the year apart from any such change as is now proposed, which can only come into force if approved by the people, and, at the earliest, in our next financial year. A change of this kind indirectly affects the present method of making payments to the States. In this instance, our course is clear, because the matter has already been fully considered and welcomed by those from whom perhaps, opposition had been apprehended. The attitude of this Parliament with regard to old-age pensions was indicated by the appointment of a Royal Commission, whose first and second recommendations were as follows: -
– The Commission were opposed to the ear-marking of special duties.
– I shall deal with that matter presently. The first recommendation refers to paragraph 16, to which I am about to allude. TheCommission declined to commit itself to any particular proposals that were made for raising revenue, but concluded by saying -
Your Commissioners recommend that, during the operation of section 87 of the Constitution, which provides for the return by the Common wealth to the States of at least three-fourths of the net revenue from Customs and Excise duties, an arrangement should be made by the Commonwealth with the several States by which sufficient money should be handed over to the Commonwealth for the purpose of making good any deficiency in the Consolidated Revenue caused by the establishment of an old-age pension system.
The Commission, without limiting itself in any way, or favouring one tax more than another, proposed that the States should be asked to make concessions which would enable this Parliament to deal with the oldage pension question. That very proposal had already been elaborately considered at the Hobart Conference, at which the right honorable member for Balaclava entered into this question very fully, and, in my opinion, settled one important preliminary. When we are proposing to alter section 87 of the Constitution, the question naturally arises whether the change would be likely to affect the States Treasuries. The right honorable member for Balaclava told the members of the Hobart Conference, in so many words, that if, for instance, duties, were imposed upon tea and kerosene, none of the States Treasurers would be affected. He said -
They do not get the money now, and there is no hope of getting it in the future.
He told therm and they assented to his statement, that the first important consideration in this regard was that, so far as the Federal Parliament had expressed its will, it had decided not to impose these or any other revenue duties as part of the ordinary Tariff, under which only one- fourth of the revenue would be retained by the central Government, and the remaining threefourths distributed amongst the States. As long ago as, the beginning of last year, the right honorable gentleman recognised that it was impossible to look forward to any amendment of the Tariff in that direction, and I do not think that his opinion has ever been disputed, or that it is likely to be successfully controverted. Under these circumstances, it is plain that, practically, the States will not be placed in any worse position than at present if new duties are devoted to special purposes in the manner indicated. At the Hobart Conference the suggestion which the Old-age Pensions Commission repeated was made by the then Prime Minister, the right honorable member for East Sydney. At page 91 of the report of the proceedings of the Conference he put the direct questions -
A debate ensued, which extended over pages 93 and 94 of the report, and was resumed at page 109. The final result is given at page 110, when the then Prime Minister again put the question -
Do the members of the Conference say that if we put on such duties as tea and kerosene duties for the purpose of finding money for a national scheme of old-age pensions, they will, so far as the present members of the Government are concerned, facilitate that by passing such Acts as are necessary to enable us to retain the whole of such duties for that purpose ?’
That is, for old-age pensions. I should have mentioned that at page 93 the Prime Minister pointed out -
Acts would have to be passed in the State Parliaments authorizing the payment to the Federal Government of certain moneys.
Therefore, he put to the assembled Premiers the very proposal which was afterwards .adopted by the Old-Age Pensions Commission ; that is to say, that each of the States should pass an Act agreeing to the appropriation of certain revenue for the special purpose of providing old-age pensions. When a division was taken, the representatives of three States voted Ibr the proposal, whilst the representatives of three other States opposed it. The Premiers of New South Wales, Victoria, and Western Australia voted aye, whilst the Premiers of Queensland, South Australia, and Tasmania voted no. The question was again revived in the most clear and explicit manner at the Sydney Conference, at which I had the honour of being, present. Personally, the Premier of New South Wales expressed himself at page 27 of the report of the proceedings as being very strongly in favour of the proposal, and he quoted a letter from the then Premier of Western Australia-, Mr. Rason, who intimated that he wished -
To see associated with any system of old-age pensions established by the Commonwealth authorities a provision, made by them, to raise a portion of the cost by means of duty on kerosene, tea, or other articles of universal use.
The report of the discussion which ensued extends from pages 27 to 34, and it will thus be seen that it was very fully debated. I think that it will be sufficient for me to read some of the remarks which were made by the Premiers when they were summing up their conclusions. The report at page 34 is as follows : -
Mr. ASHTON. Then, ought we not to say that, if a Federal old-age pension scheme is instituted, the revenue necessary to meet the cost should be raised by new taxation?
Mr. PEAKE. Yes; that is practically Mr. Kidston’s view, and we agree with it. We do not dictate to them on what it shall be raised.
– All except Tasmania are agreed that the question of old-age pensions should be taken up as a Federal matter, with the proviso attached that the Federal Government should, in any scheme of old-age pensions, provide the revenue by additional taxation for that purpose, not to meet the whole of the cost, but to go towards the cost.
Mr. KIDSTON. We are all agreed that it is incumbent on the Federal Government, if it adopts an old-age pension scheme, to provide the revenue required to finance it without trenching on the Customs revenue now returned to the States. We can stop at that if you like, but we can go a little further, and express our willingness to agree with the proposal made by the Federal Government at Hobart - that they should impose new Customs duties for the purpose of raising revenue for an old-age pensions scheme.
Mr. PEAKE. We will not agree to tell them how they shall raise it.
Mr. EVANS. So far as my opposition to the Commonwealth Government adopting an old-age pension scheme is concerned, I desire to say that it is wholly for the reason that, as regards Tasmania, the time is not opportune, but I am not against a Federal old-age pension scheme at the right time.
Motion, by Mr. Kidston, agreed to -
That it is incumbent on the Federal Government, if it adopts an old-age pension scheme to provide the revenue required to finance it, without trenching upon the Customs revenue now returned to the States.
– That was their chief anxiety.
– Yes ; that was carried without any opposition except such as was expressed by Mr. Evans in the terms I have quoted. The representatives of five of the States entirely indorsed the proposal.
– The resolution was a little ambiguous.
– It was; and attention was directed to it at a later stage. As stated, the proposal was indorsed by five of the States, whilst the re presentative of the sixth’ State gave it his qualified adhesion, holding the view that it was inopportune. I had the pleasure of again meeting the Premiers, and discussing the matter with them. I quote from pages 128 and 129, as follows: -
Mr. KIDSTON. We might add to that resolution, so as to make it clear, the words, “ In the event of special Customs duties being imposed for this purpose, the States will waive their claim to their three-fourths of those particular duties.*’
That was generally agreed to by all the Premiers as expressing the sense in which they wished their former resolution to be understood. At page 129, Mr. Kidston stated -
It is well to have it made clear that if the Federal Government adopt this method of raising revenue for old-age pensions, the States Governments are quite prepared to waive their claim to three-fourths of that special revenue.
They agreed .that all that was required was to make their intention clear to me, and the president of the Conference stated that he was sure that I understood all about it. By reference to page 130, it will be found that as regards the general proposal of the Premiers in regard to the Braddon section, I said -
To that there is the one important amendment mentioned by Mr. Kidston - that a part of the Customs revenue specially dedicated to the purpose of old-age pensions would be, by consent, omitted from your proportion.
There was no doubt whatever that we were entirely in agreement as to what was to be done. The Premiers specifically said, “ If you wish to impose fresh Customs or Excise duties for the purpose of establishing a system ‘of Federal old-age pensions, we will agree that you should be authorized to devote the whole of the sum raised from those duties to that object.”
– That was, no doubt, very kind of them.
– It was kind of them, as the honorable member says, especially of New South Wales and Victoria. Those States are at present paying- old-age pensions, while the other States only make various minor provisions towards the same end - provisions which are referred to in the report of the Old-Age Pensions Commission. New South Wales and Victoria annually set aside from their revenue a sum aggregating about ,?700,000 with which to pay old-age pensions. Under the operation of this proposal, that portion of their revenue would be set free, and they would be able to devote it to other purposes. When it is said that it was kind of the
States to agree to this proposal, I think it will be seen that in respect of New South Wales and Victoria it was also judicious. It was not a freak of unbounded generosity, but represented a considered course.
– This Bill goes further than that.
– I do not think so.
– It does not limit the purposes to which the special duties may be devoted.
– I am coming to that point. In the first place, it must be noted that the States lose nothing by agreeing to the imposition of special duties, and in the second, that the subject has twice been thrashed out elaborately at conferences. The States’ Premiers themselves deliberately set aside the proposal submitted to them at the Hobart Conference, which was repeated by the Old-Age Pensions Commission, that six separate State Acts should be passed in order to endow this Parliament - prior to the expiration of the ten years during which its control of the Customs and Excise revenue is limited - with the power which is now being sought. But this particular proposal, so far as it relates to the application of any sum raised by means of special duties to the payment of old-age pensions, has received the sanction of the whole of the States’ Premiers, after having been twiceconsidered by them, only one Premier qualifying his assent to it, by saying that he thought the present time inopportune, because of local financial considerations.
– The discussion originated in a suggestion that the duties upon tea and kerosene would eventually provide ample funds for the payment of old-age pensions without specially ear-marking any duties for that purpose.
– It is also to be noted that the States Premiers differed amongst themselves as to the particular duties which should be imposed, and as to whether they should constitute the whole or only a part of the sum required for the payment of oldage pensions. They did not enter into the consideration of that question, and neither need we. In an amendment of the Constitution of this character, I think that the power which will undoubtedly belong to any Commonwealth Parliament elected after 19,10, ought to belong to the next Parliament, which will be returned before 1910.
– Half the members who will comprise the Senate in 1910 will be elected at the forthcoming general election.
– In this “ Bill to be remitted to the people now, we should, in my opinion, adopt the form of the present Constitution. After 1910 it is quite competent for this Parliament, without any alteration of the ‘Constitution, and simply by a Commonwealth Act, to impose special duties of Customs and Excise and to reserve to itself, for any reason, the whole of the proceeds derived from those duties. Therefore, it seems to me undesirable that in this Bill we should limit the purposes to which special duties may be applied.
– Or, after 1910, give effect to a scheme like this without the imposition of any special duties?
– Exactly. It could also be done out of our existing revenue from existing duties, and it would represent an even stronger step. It seems unwise to embody in the Constitution a limitation of the application of the sums raised from special duties of Customs and Excise to the payment of oldage pensions alone, although I freely admit that, so far as this Government is concerned, the object we have in view is the establishment of an old-age pensions scheme, and no other. If it were our duty to act under the proposed amendment of the Constitution - assuming that the people accept it - we should devote the funds derived from the special duties imposed to the payment of old-age pensions. But it seems to me that whilst that is a proper statement to make Ministerially, we should not seek to impose the policy of the present Government, or of the present Parliament, upon the next Parliament. Instead, we should leave the next Parliament free under a general constitutional authority to give effect to whatever instructions it may receive from the electors. The proposed amendment of the Constitution will be submitted to the people, and must be assented to by them before anything can be done by the next Parliament. The electors at the time they authorize, or refuse to authorize, the proposed alteration of our Constitution will - assuming that they sanction that alteration - necessarily instruct their representatives as to the purposes to which the receipts from any special duties imposed shall be devoted. That is a question for the next Parliament only, as
I hope I have succeeded in making clear without the necessity for further repetition. We have the power, without an amendment of the Constitution, to devote the revenue derived from special duties to any purpose that we may choose after the next Parliament, and, therefore, it seems to me undesirable that we should embody in the Constitution a limitation which ought not to exist after 19 10.
– What will be the attitude of the Government towards the payment of old-age pensions if the electors refuse to give them the power which they now seek?
– If the electors refuse to give us that power at the next election, it will not be possible to propose in the next Parliament a scheme for the payment of old-age pensions without having resort to taxation of a direct character, and, upon a scale which - so far as 1 am aware - nobody has yet contemplated. I do not wish, however, to enter into a consideration of details, because, although the proposals of the Ministry, and the instructions which the electors will give to their representatives at the next election will relate to oldage pensions, it is possible that later Parliaments may entertain other views. Therefore, I do not enter into the consideration of the details reported upon by the Oldage Pensions Commission, nor into the sum required for the payment of old-age pensions, nor the means by which’ it might be raised. All these are matters to be proposed Ministerially to the electors, and to be dealt with by the next Parliament according to its own judgment.
– Does the Prime Minister think that the average elector will be able to grasp the significance of all the proposals upon which he is to be asked to vote ?
– There are only three. The elector will be asked whether he thinks that the general elections should be held late in the calendar year - about November or December - or towards the middle of the year - in the autumn. There is no man so simple that he cannot give an answer to that question. He will also be asked whether he favours an alteration of the Constitution empowering this Parliament to take over all the debts incurred by the States since the establishment of the Federation in 1901 ? That involves a number of complex issues, which, however, need not trouble the elector, inasmuch as all parties and all representatives, so far as I am aware, have agreed that whatever scheme may be adopted for the taking over of the debts of the States, it is desirable that the whole of them should be dealt with, together. There is unanimity upon that question, and consequently the elector will not have any doubt as to how he ought to act. In regard to the proposed amendment of the Constitution which is immediately under discussion, the Ministry will suggest that it ought to be accepted.
– Will a bare majority suffice to secure an amendment of the Constitution ? 1
– Does the honorable member refer to a majority of this Parliament, or of the electors?
– I was referring to the electors.
– To effect an amendment of the Constitution it is necessary to obtain the assent of the majority of the whole of our electors, if they include majorities in a majority of the States.
– In connexion with the proposal to hold the general elections later in the year, what is there to indicate to the elector that the proposed alteration of the Constitution will involve an extension of the period for which members of the next Parliament will be elected?
– I think it will be made clear. If the honorable member will consult the Referendum Bill he will see that it is intended to submit every question in a simple and direct form to which the answer will be “Yes” or “No.” I do not wish to detain honorable members, because, although there is a great deal more to be said in reference to this proposal, in itself it is very simple. Those who think that during the next Parliament we should not deal with the question of old-age pensions unless we deal with it by some form of direct taxation alone, will naturally oppose this Bill. But I do not think that any other section of the House need oppose it, because all that it asks is that the power of the next Parliament shall be extended in. this particular. The same people who will say whether the power of imposing special duties for the payment of old-age pensions shall be granted to the next Parliament, will also instruct their representatives as to the manner in which they desire the funds to be provided. This Parliament will surely not refuse to take the necessary step to enable its successor to deal with the question of old-age pensions unfettered by those temporary ties which at present render us incapable of dealing with it? They will not refuse to ask the electors to say whether they are satisfied to endow the next Parliament with authority to place old-age pensions in Australia upon, a Federal basis. Even after they have given their consent to the’ proposed extension of the powers of the next Parliament - they will not in amy way have weakened or diminished the control they exercise over their representatives. The new Parliament can then come back equipped with the means of sweeping away the present disabilities and disadvantages which are suffered bv the elderly and impoverished in certain States of Australia. They can all be placed upon the same footing, and receive equal consideration. Another strong Federal bond will be created by a practical recognition of Australian citizenship. It .must always number some who iri their last years find themselves unequal to the tasks of active life. Under these special circumstances they may receive, not as a dole, but as an act of equity on- the part of the community to which they belong, sufficient to place them above the reach of that absolute want which deteriorates young and old,, but falls with specially bitter and numbing power upon men and women who having spent their strength, seek to sink honorably into the grave. I trust that considerations of this Federal character will weigh with honorable members., and that they will see fit to expedite the passage of this Bill to another place. Let us put old-age pensions upon a Federal basis by allowing whatever sum the next Parliament may think necessary for their payment to be derived from special duties, the whole of the receipts from which will be dedicated to that beneficent object.
– I wish to ask the Prime Minister whether he will consent to an adjournment of the debate?
– I must do so if the honorable member asks for it
– While the Bill itself is simple enough, the statement which the Prime Minister has made of the intentions of the Government underlying its introduction, have added a matter of grave import to its mere verbiage.
– I thought it only fair to make it, although it belongs really to the elections.
– Quite so; but I am glad that the honorable and learned gentleman did make’ the remarks in question. . I move -
That the debate be now adjourned.
Motion agreed to ; debate adjourned.
In Committee (Consideration resumed from 31st August, vide page 3802) :
Clause 1 -
This Act may be cited as the Preferential Ballot Act 1906, and the Principal Act as amended by this Act may be cited as the Commonwealth Electoral Act 1902-1906.
“The Principal Act” means the Commonwealth Electoral “Act 1902 as amended by the Electoral Divisions’ Act 1903 and by the Commonwealth Electoral Act 1905.
– Having carefully considered this so-called Preferential Ballot Bill, I certainly am not satisfied that it will carry out the professed intention of the Government. It is claimed that it provides for majority rule, a claim with which I do not agree, and in order that that object may be achieved, I move -
That after the word “ the,” line 1, the word “ Compulsory “ be inserted, and that after the figures “ 1906,” line 2, the words “ and shall apply to the Senate and the House of Representatives,” be inserted.
If the Government desire, under this Bill, to provide for majority rule, they have certainly adopted a most ineffective and complicated method of securing that result. To my mind, unless it be amended in the direction I propose, it will not bring about majority rule. I favour a scientific method of voting that will enable the will of the people to be clearly expressed, but I am confident that the proposal that this Bill shall apply only to elections for the House of Representatives, and that the system of preferential voting which it embodies shall be optional, will not help us in that direction.
– If the medicine is good for the one House, it is good for the other.
– Yes. In moving that the Bill be read a second time, the Minister of Home Affairs pointed out that some members of this House represented, minority votes. It certainly cannot be claimed that the Senate does not furnish us with more glaring examples. At the last elections for the Senate, in Victoria, the successful candidates polled about 375,000 votes, whilst nearly 700,000 votes were recorded against them. Equally glaring instances of minority votes are furnished by the returns relating to the Senate elections in the other States. In these circumstances, if we are to have a Parliament representing majority rule, we should make this preferential voting system compulsory, and apply it to both branches of the Legislature.
– How would the honorable member apply it to an election for the Senate, with perhaps twenty candidates, and only three to be returned?
– A truly scientific method of securing equitable representation has not yet been devised, and I favour the postponement of the consideration of this measure; in order that we may see whether time will afford us a satisfactory solution of the problem. If, as pointed outby the honorable member for Bland, there is a difficulty in applying this system to the Senate, the same difficulty exists, although in a lesser degree, in respect of its application to elections to the House of Representatives. The honorable member does not claim that the system of preferential voting adopted at the first Federal elections in Tasmania was an entire failure ?
– No; but I did not know that the honorable member favoured that system.
– It is certainly different from that provided in this Bill, and it does not secure equitable representation. I claim that the experience of Tasmania shows that it is not satisfactory, and that according to the representatives of Queensland the system embodied in this Bill, which has been tried in that State, has proved equally unsatisfactory. I hope, therefore, that the Committee will agree to my amendment.
– I would point out to the honorable member that his proposal really embodies two amendments. I shall therefore first put to the Committee his amendment that after the word “the.” line 1, the word “ compulsory “ be inserted. If that amendment be carried, it will then be open to the honorable member to move the further one that he has indicated.
-Unless there are serious difficulties in the way. I should like the amendment to be put in the form proposed by me, since there may be some honorable members who, whilst not prepared to make, the system compulsory, if it be applied only to the House of Representatives, may be quite ready to agree to a compulsory system applying to both branches of the Legislature.
– It would not be proper for me to put at the one time the two amendments. If I were to put the second one, any honorable member who desired to move a prior amendment would be unable to do so.
Amendment (by Mr. Frazer) proposed -
That after the word “the,” line i, the word “ Compulsory “ he inserted.
– I am opposed both to the clause as it stands, and as proposed to be amended by the honorable member for Kalgoorlie. I think it would be better to take a test vote to determine whether the Committee is in favour of the preferential system for which the Bill makes provision, and I, therefore, intend to move that the word “preferential “ be struck out. The returns for the last general election show that only in Victoria and Queensland did a majority of the electors record their votes at the elections for the Senate, the percentages being: - Victoria, 51.18; Queensland, 54-83; South Australia, 32.65 ; and Western Australia, 28.35. A slightly higher vote was polled for the House of Representatives, but even in that case Victoria and Queensland were the only States in which a majority of the electors recorded their votes. In Victoria the percentage was 53.83, and in Queensland 57-03, Western Australia again being the lowest on the list. How can. honorable members be returned by an absolute majority when the majority of the electors do not take the trouble to record their votes, and when we have a number of candidates in each electorate splitting the votes? Under the system proposed by the Government, we shall still have honorable members representing minority votes. I certainly am not in favour of the proposal that this- system shall be compulsory. Surely honorable members of the Labour Party realize that we have arrived at a stage when both the other parties in the House are opposed to us. The Labour Party has to fight unaided. Under this system we should find the free-trader preferring to give his second vote to a protectionist candidate rather than to a labour candidate, and the protectionist voting for the free-trade candidate rather than for the nominee of our party.
– I do not dispute that.
– Then, the honorable member is proposing to make it compulsory for supporters of the Labour Party to give a second vote to candidates nominated by the other parties.
– I am opposed to placing on the statute-book legislation which the people mav or may not use.
– I have stated that I am in favour of compulsory voting. If voting were made compulsory, we should secure an expression of the will of the majority, and if, in addition, we had preferential voting, that would be doubly certain. I hope that the honorable member for Kalgoorlie will vote for my proposal, because he agrees with me -that, if a preferential vote is cast, it will be cast against labour candidates, as probably the majority of both free-trade and protectionist supporters will be anti-Socialists. It would save time if we took a test vote on the proposal to strike out the word “ preferential.”-
– I should prefer a straight out vote, such as that suggested by the honorable member for Hindmarsh. I understand that the object of the honorable member for Kalgoorlie is practically the same as that of the honorable member for Hindmarsh, and therefore I hope that he will withdraw his amendment, to allow the question to be tested fairly. He wishes to provide for compulsory voting, but I ask him to leave the provision as it stands. The honorable member for Hindmarsh has. pointed out that electors may object to the compulsory principle.
– If preferential voting is right, should it not be made compulsory?
– The electors should be at liberty to vote as their consciences dictate. The Bill has been introduced because of the unsatisfactory results which sometimes follow the existing method of voting, by which the successful candidate is returned on a minority vote.
– The system provided for in the Bill does not make it certain that the person returned is the choice of a majority of the electors.
– The Bill enables every elector who exercises the franchise to take part in the final selection, and provides the only known practical scheme which will allow that to be done.
Mr.McCay. - It will not secure majority rule.
– If a majority of the electors exercise the franchise, the final selection will be made by a majority.
– Of course, if a majority of those on the roll refrain from voting, the selection must in any case be made by a minority. The only way to prevent that would be to compel all qualified to vote. That would be a large proposition to put before the country, though, no doubt, it would find favour with many. If voting were made compulsory, we should have also compulsory registration.
– Will the Minister agree to making voting compulsory ?
– I shall stand by the Bill. I wish for the adoption of a principle which will enable the majority of the electors to take part in the selection of their representative.
– The Bill will not insure the return of the choice of the majority.
– It will enable every elector who is qualified to vote to have a say in the final selection. The honorable and learned member mentioned the other day a mathematical process, which I do not think he himself would apply to an election.
– I prefer the present system to that proposed in the Bill.
– In how many electorates will there be more than two candidates ?
– I cannot say. The example given in the memorandum which has been circulated shows that the system provided for in the Bill will enable the majority to express its opinion, the principle being that of the exhaustive ballot. The alternative suggested, which has been much discussed, is the second ballot. Under the Queensland system of the contingent vote, all the candidates except the two placed first and second on the poll are rejected in the first count. It was suggested that we should apply the second ballot only in regard to the two candidates in that position ; but we thought that, by rejecting at each stage only the candidate lowest on the poll, every elector would be able to express his choice in regard to each of the candidates in succession. The illustration supposes that at an election Smith polled 5,000 votes, Brown 3,500, Jones 3,400, and Robinson 2,100. In that instance the electors would be taken to have declared against Robinson in the first instance, and he would be rejected.
– The candidate receiving the lowest number of votes may be really the second choice of most of the electors.
– If the principle of rejecting at each stage the candidate who had secured the lowest number of votes were adopted, the electors would have an opportunity to express their preference in regard to every candidate. This is the best practical scheme yet devised to enable electors to express their preference in the final selection, and I believe that it will ‘have the desired result.
– If the system is such’ a good one, why should not the electors be compelled to make use of it?
– Some electors may say, “ If we cannot get our candidate in, we do not care who gets in.” In no system where there is a second ballot are the electors compelled to vote twice. The second vote is optional.We are allowing everything to be done which can be done under the second ballot, and are providing a practical scheme. I appeal to the honorable member for Kalgoorlie to withdraw his amendment, so that the question may be fought out on its merits. We have all expressed our desire for majority rule. If there is a better practical method than that proposed, let it be put before the Committee; but until such a scheme is proposed I ask honorable members to stand by the Bill.
.- I take it that the intention of the Bill is that where there are more than two candidates that candidate shall be chosen who, in a series of single contests, would have beaten each of the others. Thus, if Smith, Brown, Jones, and Robinson were candidates, Brown wouldbe chosen only if he should have beaten Smith, Jones, and Robinson in a series of single contests. Perhaps the Minister will tell me if I am right in saying that, although there might be a multiplicity of candidates, the final choice would rest upon the candidate who, in a contest between himself and each of the others, would have beaten each of the others? If that result would not be arrived at, the scheme proposed under the Bill would be of no use. A system of preferential voting, to be of any service, must secure the election of a, candidate who would have beaten each of the others in a single contest. Otherwise, there can be no real choice of the majority under the Government proposal, any more than under the existing system of election. I would show the Minister that in the very example he has given in the memorandum that has been circulated, the choice of the electors might fall upon the man who went out first. Suppose that the unfortunate Robinson, who obtained only 2,100 primary votes out of 14,000, happened to be the second choice of the other 11,900 electors. In the case of a choice between Smith and Robinson, the latter would be ahead upon more than half of the ballotpapers. In a choice between Robinson and Brown, or between Robinson and Jones, the former would also have a majority. Robinson would have a majority against Smith, because if he were the second choice of all the electors who had not made him their first choice, he would record 9,000 votes against Smith’s 5,000. In a contest between Robinson and Brown, the former would have_ 10,500 votes against 3,500; and in a choice between Robinson and Jones, Robinson would have 10,600 votes, as against 3,400 votes. That is to say, Robinson would have all the votes except the first vote given to the other candidates.
– The honorable member is assuming a case that may never arise.
– The difference between 9,000 votes and 5,000 votes gives a very wide margin. In the ordinary case there would be three candidates, and not four. I could easily make up a set of figures that would show that the man who goes out first is the more likely to be the choice of the majority than either of the candidates who are left in the contest.
– But would an election’ produce such figures as the honorable member assumes ?
– I pick my figures in the same way as the Minister has picked his. You can argue only on the basis of arbitrary figures. The system of throwing out the man who secures the smallest number of first votes has underlying it exactly the same principle as that which, under the present system, results in the election of the man who has the largest number of votes. Our present system is founded on the theory that the man who secures the largest number of votes is the choice of the majority, whereas under the proposed system it is assumed that the man who secures the lowest number of primary votes is the least likely to be the choice of the majority.
– But the honorable member is not taking into account the probable results of an election under the system of voting according to the party ticket.
– In connexion with that question, I would point out that the candidate selected by a strong party, and receiving 5,000 votes, would very likely be regarded as the most dangerous opponent, and would be placed at the bottom of the list on the ballot-papers used by electors belonging to other parties. Suppose, for instance, 14,000 votes were cast, and one candidate received 5,000 votes, another 4,800, and the third 4,200 votes. I contend that it is at least as probable that the man with 4,200 votes would have the majority of second preferences as that either of the two other candidates would do so. The two candidates with the larger number of votes would represent the two stronger parties, the members of which would most likely give their second’ preferences to the man whom thev regarded as the weaker of their opponents. The electors do not give their second preferences to the man whom they prefer next to the candidate to whom they give their primary votes, but to the man whom they fear least. They give only their last vote to the man whom they fear most. Aru elector casts his vote to what he conceives to be the best advantage of the candidate whom ihe most desires to see returned.
– He looks round to see how he can best waste his second preference.
– Exactly. Therefore, I venture to say that the probabilities are greatly in favour of the man with the least number of primary votes receiving the majority of second preferences. Consequently, he is the man who on the expression of preference of the majority ought to be selected’, and yet, under the system proposed by the Government, he would be the first rejected. It is entire! y wrong to suppose that the man with the smallest number of primary votes is the least likely to represent the preference of the majority. I contend that the new proposal is founded upon the same theory as that which underlies the present system of voting;, and that if the present system is wrong the one now proposed is also wrong. The Minister asks us to suggest any other practicable method which would prove more satisfactory. The difficulty is, however, that the practical methods are wrong in principle, whereas the methods which are right in principle are exceedingly difficult to put into practice. I referred, on a previous occasion, to theonly theoretically correct system that I know of. I have never gone back upon the view I have previously expressed, that I would not care to be the returning officer who would be called upon to count the votes under the average system, because that would be a shockingly long and tedious task. But I contend that if we wish to adopt a perfect system, we should not allow such considerations to weigh with us. I have no love for any of these fancy systems ; but if I am called upon to make a selection, I prefer the scheme which will be most consonant with theoretical accuracy. I should, however, support no such system of my own choice. I challenge the Minister to show that the system he proposes will insure the selection of the choice of the majority. I say that it does not.
– If a system will not work out in practice, the theory underlying it cannot be sound.
– On the contrary, a system may be quite sound in principle, but very inconvenient to carry into effect. The a.average system is perfectly sound in theory, provided that every elector honestly expresses his preference. I admit that that is a very important proviso. I do not for one momentsay that’ it is dishonest for a man to keep back the candidate of whom he is most afraid’.
– Can we reasonably assume that there will be no block voting?
– No; the weakness of these fancy systems is that they regard the ejectors asa lot of counters - pink or purple, or black and white, or strawberry colour. But they are not like so many counters to be put into a barrel and counted out. I challenge the Minister to show that his system is correct in theory - to indicate the distinction between a system under which it is assumed that a man, because he has most of the first votes of the electors, is likely to be the choice of the majority, and one which assumes that a man is least likely to be the choice of the majority because he has the fewest number of first votes. Both the present system and the proposed scheme are founded upon the same idea, and if one is wrong, both are wrong. I contended on a former occasion that, if it were necessary for us to adopt any fancy system of voting, we should select the average method. I do not like it, but of two evils would choose the lesser. It would involve difficulties.
– So much so that it would be impracticable. How, for instance, could it be applied to the Senate?
– It is not proposed in the Bill to apply the new system to the Senate elections. The principle of the measure is utterly different from that of proportional voting. Under the system of proportional voting, the minority as well as the majority are supposed to be represented, and that principle could not be applied to single electorates. The object of the preferential voting system, as proposed, is to insure that the majority candidates, and no others, shall be chosen. May I ask the Minister if I am right ?
– The object is to enable the majority to make their selections.
– I do not know why the Minister should fence with the question. Does he say that the system of voting provided for in the Bill would insure the selection of the choice of the majority? If not, the Bill is worthless.
– The measure would abolish minority representation altogether.
– The object shouldbe to insure that the selected candidate shall have an absolute) majority as against each of the other candidates. If it is desired to insure majority rule, the system of voting should be carried out to the fullest possible extent. I know of many electors, however, who would strongly object to be compelled to vote for more than one candidate.
– But we have made it compulsory upon the electors to vote for at least three Senators at an election.
– I am perfectly aware of that, but still there are many electors who object to the system.
– But the honorable and learned member does not disapprove of block voting?
– I think that it is less objectionable than the alternativein the case of the Senate elections, because it is always possible for a party to run a full ticket of its own. If, however, preferential voting were made compulsory, the electors would be required, inmany cases, to vote for men in whose political principles they did not believe. On the other hand, if it is not made compulsory to exercise the preference the whole proposal is a farce. Compulsion is required to make it real, and compulsion is. objectionable. That is my complaint against the proposal upon practical grounds, as contrasted with my opposition based upon the ground of mathematical calculation. As I have before stated, the proposed scheme rests upon the same theory as the present system, and is equally faulty. I pointed out that under the illustration embodied in this memorandum, Robinson might be the second choice of all the other electors, in which case he should be preferred to either Smith, Brown, or Jones. In other words, in a straight-out fight between Robinson and any of the other candidates, Robinson would be returned. Yet, under the Government proposals, he would be the first candidate rejected. I am aware that exactly the same objection may be urged against the existing system, but I submit that when it is proposed to make a change, the onus is upon those who advocate it to show that the new system is better than the old one. If we take another illustration in which one candidate receives 4,500 first votes, and another candidate only 4,200, I venture to say the probabilities are that the latter, who, under the system proposed by the Government would be the candidate rejected, would secure more second preferences than would the first candidate. Let us assume that there were three candidates for a constituency consisting of a free-trader, a protectionist, and a labour candidate. If the freetrader secured 5,000 first votes, the protectionist 4,800, and the labour candidate - who was also a protectionist - received only 4,200 first votes, I venture to say that the probability is that upon all the ballotpapers marked by protectionists, the labour candidate would be the second choice.
– Not necessarily.
– According to the honor able member’s theory, upon all the ballotpapers marked by free-traders, the protectionist would be the second choice, instead of the labour candidate. In other words, the protectionist candidate would receive 0,800 votes as against 4,200 votes polled by the labour candidate-
– That is the honorable and learned member’s theory.
– Where the votes are fairlyequal, the candidate who obtains the lowest number of first preferences is likely to secure the largest number of second preferences.
– Why does the honorable and learned member want to insure the adoption of a system of preferential voting at all?
– I do not want to see that system adopted. Under the Government proposals, the first candidate who would be rejected would probably be the real choice of the electors.
– The honorable and learned member said that that was bound to be the case.
– I did not. I said that the probabilities were that it would be the case.
– The honorable and learned member said that it would be.
– Upon the assumption that I am making, I said that it would be the case, and I maintain that the assumption which I am making is the most probable one. Of course, we cannot predict anything with certainty at election times, as the honorable member ought to know. Let us further assume that 14,000 votes are recorded by a constituency, and that 5,000 are cast in favour of the freetrade candidate, 4,800 in favour of the labour candidate, and 4,200 in favour of the protectionist candidate. In order to secure election, the protectionist candidate would require to get 2,801 second preferences, which would give him a total of 7,001 votes out of 14,000 votes. If he secured that number, he would be the real choice of the constituency.
– According to the system proposedby the Government?
– According to the theory that an absolute majority of the electors should be represented. He would require to get only 2,801 second preferences as against the votes cast in favour of both the other candidates, which, with his own 4,200 first votes, would give him an, absolute majority. I maintain that the candidate who, upon the first votes, was third upon the poll would be likely to get those 2,801 second preferences, and, if he did so, he would be the absolute choice of the electors. But. under the Government proposal, he would be the first candidate defeated. In other words, the system embodied in this Bill allows the representation of the electors to remain as big a lotteryasit is under our present system. As regards the alternative of the average system, I say - as I have said upon more than one occasion in this House - that it would involve an enormous amount of calculation, and that I should be very sorry to be the returning officer who had to make that calculation. But if the ideal of the Government be to insure the rule of the majority, that is the only method by which it can be attained. I do not like that system - I never did like it. I prefer the present system to that method. But if we are to adopt a proposal which, in theory, will give us majority representation, let us adopt the system which, mathematically speaking, will insure it. I contend, however, that the trouble and difficulty which would be experienced under any such system far outweigh its advantages. The only merit of the Government proposals are that they look as if they would insure majority rule, and that they would not be difficult in operation. But the present system is quite as likely to result in majority rule, and it is much more simple than is the scheme which is embodied in the Bill. I challenge the Government to show, by any means in their power, that the system which they propose is not open to the same objections as is the present system. I say that it is founded upon the same theory, and that it is liable to the same evils. The Government cannot justify it upon mathematical grounds any more than they can the present system, and they cannot justify it upon the grounds of probability any more than they can the existing system. That being the case, why do they not frankly admit it? Why do they not say that the Bill will not insure majority rule any more than does the present system, and that therefore they intend to abandon it? To pretend that it will insure majorityrule when it will not, is unworthy of the Government, and they have no right to make such a pretence to this House.
– It was very’ difficult for the honorable and learned member for Corinella to explain, in the course of his speech, the full bearing of the figures which he quoted. My reading upon this question leads me to believe that, wherever the desire has been to insure the representation of the majority by some artificial means, the system of the transferable vote has been preferred to all other systems. In Germany about 35 per cent. of the electorates exercise a second choice. In many parts of the Continent both sys tems have been in vogue. According to an article which recently appeared in the Times newspaper, the systemof the transferable vote is the better method for approximately ascertaining the real choice of the electors. I do not think it is claimed for any system that it will insure that perfect representation which seems to be contemplated by the honorable and learned member for Corinella. But surely he will admit - taking as candidates Smith, Brown,and Robinson - that that system is the better one under which an alternative choice is given to the electors. Under the present system the electors have absolutely no second choice. If they cannot secure the return of the candidatewhom they favour upon their first votes, they have no other means of exercising a choice, whereas under the system of the transferable vote, they would have another choice. They could indicate the character of their second preference. In other words, they could say who among the other candidates they preferred, upon the assumption that their own candidate had not the remotest chance of being elected. In the illustration which he gave the honorable and learned member for Corinella assumes that it would be a mistake to provide that the candidate who received only 2,100 first votes should be rejected, seeing that he would probably be the candidate who would secure the greatest number of second preferences. But in making that statement the honorable and learned member has to assume a certain degree of depravity in the electors.
– I have not.
– If that were the result of their application of the proposed system it would indicate a moral delinquency on their part which I am not prepared to concede. He assumes that, for purely partypurposes, and to prevent the possibility of a candidate being returned who was not one of their party, but who, uponvarious other grounds, might be infinitely preferable as a representative, they would throw away their second preference.
– A big percentage of the electors would do that.
– We can give a good system to the electors, but we cannot insure that they will act morally in giving effect to it. We must not reject a system which approaches mathematical correctness simply because it may be abusedby the elect ors.We have to assume thatthey will exercise a reasonable choice. That is the basis of the comparisons which, from time to time, are made in this House by members of all parties. ,
– Why not refer this Bill to the people?
– I am afraid that the criticisms which have been levelled against it are not sound, but I do say that it ought not to be passed upon the eve of an election, and that the system of majority rule is not so ideally perfect that we ought, on that ground alone, to expedite the passage of the measure. I believe that a majority ought to decide all questions, but I also maintain that the voice of the .minority ought to be heard. This Bill seeks to insure that in all cases the majority shall rule. One can readily conceive of circumstances under which, in each of the seventy-four electorates for this House, a particular party might have a slight majority. By the application of the machinery provided in this Bill that party might secure all the representation of the Commonwealth, and we should thus have the grossest travesty of democratic government of which we can conceive. My objection to the Bill is not that it would not work out approximately in the way that its advocates claim, but that we ought not to pass it at the present stage of the session. A Bill providing for a system of proportional representation under a redistribution of seats ought to be brought in by the Government.
– Under that system, we should have enormous electorates.
– No doubt, but that would not be an evil.
– It is very costly to work them.
– That is a question which only concerns candidates. It may be a paradoxical statement, but the candidate who has the least money seems to be able to spend the most. Under the existing system, those who have not an organized party behind them and endeavour to press policies on their merits upon the electors have to provide their fighting funds out of their own pockets, so that the so-called poor man, thanks to the excellent effect of voluntary machinery, is not always in the worst position. If the electorates were larger, we should have perhaps a better system of electioneering, and many candidates would see the folly of spending large sums to conciliate big coteries of voters. The larger the electorate the less the neces sity to expend money in connexion with a contest, because it would be less effective.
– My constituency is nearly as big as England, How much larger would the honorable and learned member have it?
– I do not wish it to be any larger ; but I do not think it would be a very great evil if we had triple electorates working under a system of proportional voting. Under such a system, men of some independence of judgment would have a possibility of being returned bv voluntary effort, which would counteract the inadequacy of their means to obtain the position they desired. If an opportunity is offered to defeat the Bill at this stage I shall take advantage of it, but I regret that a test vote was not taken on the motion for the second reading. The Government practice of appealing to the loyalty of honorable members to give them a vote on a motion for the second reading, of a Bill - a vote which may prove futile when the Bill is in Committee - is a very bad one.
.- Much of the’ criticism offered by the honorable and learned member for Angas is fatal to the Bill. He has pointed out that although it has been introduced with the intention of establishing majority rule, it does not mean that it will be necessary for a successful candidate to secure a majority of the votes polled. I take it that it is an attempt to make the electoral system a little less imperfect than it is, and I am not going to deny that, on the score of economy, there is much to be said for the principle of contingent voting as opposed to that of the second ballot. If any step in the direction of the second ballot is to be taken, the proposal put forward by the Government ought to be accepted. The history of the introduction of the contingent voting system in Australia is a verv interesting one. It was introduced by a party which desired really to deny representation to the people.
– What was the franchise?
– It was an outrageous one.
– And no one knows that better than does the Minister of Home Affairs.
– I quite agree with the honorable member.
– It was the foster sister of the proposal now before us. It was introduced on the eve of a general election, and passed through Parliament before any appeal in regard to it had been made to the country. This Bill seems to be the product of a newspaper controversy, and I hold that the newspapers published near the Seat of Government are the last source from which we should seek guidance in regard to our legislation. Until a better electoral system has been discussed by the electors, and honorable members have been authorized by them to improve the present system, I do not think that we can safely amend it in the serious way proposed in this Bill. The contingent voting, system is the least expensive and the most practical and effective one that could be introduced to improve, our existing electoral machinery ; but I am not prepared to support the passing of this measure on the eve of a general election.. Only last session the Government introduced an amending Electoral Bill, and at that time, apparently, they had not thought out the proposition nowbefore us. I do not . agree with the view of the honorable member for Hindmarsh that we need to fight on party lines, and that under this Bill one party would be specially benefited. I do not think that the party to which I belong would be seriously injured ifit were passed; but I certainly do think that the electors would be greatly confused. It is only fair that the Minister should state clearly that, whilst the Bill purports to secure majority rule, it would not necessarily have that effect.
– It would enable a candidate to secure a majority of the votes polled.
– It does not provide that no candidate shall be declared elected unless he has obtained a majority of the votes cast.
– That is so.
– The electors should be told that even, this Bill does not require that a successful candidate shall secure a majority of the votes polled, and that therefore it does not mean majority rule. I have the greatest sympathy for minorities, but think the Bill would rather play into the hands of majorities, and would enable them to increase their strength. British communities are not, as a rule, greatly concerned with the question of how an election may affect the country. The people usually fight on party lines, and their only desire is to secure the return of their chosen candidates. I do not say that the present system is a perfect one, but I feel confident that we should not be justified at this stage in passing a Bill which would lead to confusion on the part of the electors, and would not accomplish that which is desired by its strongest advo- cates.
.- During the debate on the motion for the second reading of the Bill, the objections just raised by the honorable member for Wide Bay were voiced by myself, and yet the honorable member voted for that motion.
– I say that I am in favour of the principle.
– The honorable member says that the Bill is the product of a newspaper controversy, and yet on Friday last he voted for the motion that it be read a second time. On the one hand we have a member of the Labour Party declaring that he objects to the Bill unless the system of preferential voting for which it provides be made compulsory, whilst on the other hand we have another honorable member of the party pointing out that a compulsory system of preferential voting is undesirable.
– I voted against the second reading.
– I am aware of that. The Minister of Home Affairs has said, “ Let us have a test vote on the proposal made by the honorable member for Hindmarsh, and drop the amendment proposed by the honorable member for Kalgoorlie.” The Minister is a cute, able man, but his scheme will not work. He knows that the honorable member for Wide Bay, and others, believe in the abstract principle of preferential voting.
– I propose to secure a test voteby moving the omission of the word” the.”
– But the Minister would like to take a test vote on the question that the word “preferential “ be omitted. The honorable and learned member for Angas has told us that as long as the electors have a reasonable chance of giving expression to their views, no serious harm will be done. It is our duty to make our electoral machinery as simple as possible, and I am certainly opposed to any fancy scheme of voting. Although I admit that the honorable and learned member for Corinella has a knowledge of mathematics which should peculiarly fit him to deal with the provisions of this Bill, we found his explanation somewhat confusing, and in these circumstances I should like to know whether it is reasonable to assume that it is possible to make the system clear to the electors within the few weeks that will elapse before the next general election. They have been accustomed for years to vote under a certain system, and any sudden change will either cause them to be suspicious, or irritate them. If we pass this Bill. the electors will either refrain from casting their votes, or if they do go to the poll they, will be suspicious and very anxious as to whether or not they have correctly recorded their votes. The honorable and learned member for Corinella told us that, under this Bill, at 6.30 p.m. on election day we might find that in one electorate “ Brown “ had been returned, and that his party were triumphant, that at 7.30 it might be said that “Smith” had a majority, and his party full of rejoicing, whilst at 10.30 - just as the electors were retiring to rest - it might be announced that “ Jones “ had succeeded. I do not want a system which will put in “ Brown “ at 6.30, “ Smith” at 7.30, and “ Jones “ at 10.30.
– The honorable member desires a system which will return “ Wilks “ all the time.
– Exactly. The complaint made by the Minister is that we have not majority rule, and that only a small percentage of the electors go to the poll. This Bill will not remove those causes of dissatisfaction, but it will certainly enable the manipulation of votes. The honorable member for Kalgoorlie has exposed that danger. Under an optional preferential system, a well organized party like the Labour Party could tell its supporters not to use the preference, and those supporters would then not vote at all for either a Reidite or a Deakinite. That would introduce the objectionable system of plumping. The other two parties, not being so well organized, would not be able to get their supporters to vote only for their candidates. Indeed, the supporters of the party to which I belong are so conscientious and high-minded that I feel sure that they would use the preferential vote, however they might be instructed. I am willing to support the honorable member for Kalgoorlie in making voting compulsory. If the preferential ballot be a good system, let us make it compulsory, and let us apply it to elections for the Senate as well as to elections for the House of Representatives. YOU, Mr. Chairman, know well that, in the State from which you come, there is more need for preference in the case of Senate elections, when there will be ten, twelve, or fifteen candidates, than in the elections for this House. The honorable member for Hindmarsh is opposed to making the preferential ballot compulsory. He asks, “ Do you think that the Labour Party are going to allow the majority to rule?” As a member of that party he is against compulsory preferential voting.
– Because under- that system I should have to vote for candidates to whom I might be opposed.
– That may be the honorable member’s personal reason for objecting to the system, but his political reason is that he thinks that the other two parties would score if the preferential system were made compulsory.
– I think that they would.
– For my part, I think that we shall play into the hands of the organized forces of labour if we provide for optional preferential voting. What we have chiefly to consider is, not how the system will affect any one of us, or any political party ; but whether it will assist in securing the expression of the will of the majority. The Minister says that he wishes for majority rule, and I, too, am desirous that the will of the majority shall be felt. Remembering how few of those on the rolls vote at elections, I am compelled reluctantly to think that it will shortly be necessary to make voting compulsory. . Voting is not merely a privilege ; it is also a duty.
– Why should not an elector be allowed to do as he pleases with his vote ?
– The honorable member would not contend that an elector should be free to obey or disobey the laws passed by this Parliament simply because he might not believe in them. Parliament’ has passed Acts in- pursuance of its powers under the Constitution, and the minority as well as the majority must respect and obey their provisions. Why should not the same principle be applied to electoral matters ?
– The case is quite different.
– The honorable member says so because compulsory voting would not benefit the party to which he belongs.
– We desire that every elector shall go to the poll.
– The percentage of votes recorded is so small, ranging from 57 per cent. in Queensland to 28 per cent. in Western Australia, that I think that the time will soon come when voting will be made compulsory. The Bill does not provide for more effective voting. It will not increase the number of votes cast at the next election. The only States in regard to which it is likely to have effect are Queensland, Tasmania, and Victoria.
– Had it been law, it would have affected the representation of four divisions in New South Wales at the time of the first election.
– The honorable gentleman has explained that, on the records of the last election, the Bill, if passed, would affect only two divisions in Queensland, two in Tasmania, and nine in Victoria. It has surely not been brought in because of the four divisions in Tasmania and Queensland whose representation might be affected. The real reason for its introduction is that the Ministry wish to capture some of the nine seats in Victoria, which the adoption of preferential voting might give to them. But if the Government believe in the preferential system, they should make it compulsory, and apply it to elections for the Senate. Last week a section of the Labour Party saved the Bill by voting with the Government for the second reading, and now the Minister wishes the Opposition to vote with the honorable member for Hindmarsh to save the measure again. The honorable gentleman, as a private member, was considered astute and far-sighted, and his capacity for getting over difficulties has not left him now that he has become a Minister. I would prefer to test the opinion of the Committee in regard to the proposal to make preferential voting compulsory. What we all desire is an effective system. No doubt some honorable members voted for the Bill last week because they were afraid that if they had voted against it it might have been said that they were opposed to an effective system. But the measure is a make-believe and a sham, and, in my opinion, merely an instrumentforged to secure a Ministerial gain.
– The discussion which we have entered upon in regard to the amendment before the Committee has made plain the question at issue, and I therefore desire to say a few words in regard to it. I followed the characteristic utterances of the honorable member for Dalley with great interest. He probably voices the opinion of a not inconsiderable section of the Opposition. What we desire is majority rule, and the country has already suffered because the will of the majority has. not always found expression, and because of the existence of three parties in the Federal Parliament. In my opinion, if we accept the amendment, we shall perpetuate minority rule, and shall lose the only chance we have of resolving the three political parties into two. Although the preferential system is not the most perfect that could be evolved, I am not prepared to offer a substitute for it. But there is one point in regard to which I should like enlightenment from the Minister. What reason is there for rejecting the candidate lowest on the poll ?
– That is the only practical method of determining the preference of the electors. The average system suggested by the honorable and learned member for Corinella is absolutely impracticable.
– I followed the speech of the honorable and learned member for Corinella, and these proposals have been troubling me considerably.
– He has admitted that his scheme is impracticable, and it is generally abandoned, so far as practical elections are concerned. No one advocates it now.
– I feel that there is a danger that the candidate lowest on the poll on the first count may have received sufficient second preferences to entitle him to further consideration.
– The second prefer ences would have been thrown away on him ; they would not have been given to him because the electors wished for him as a representative.
– I believe that the only proper system is the exhaustive ballot; but I recognise the enormous expense which it would entail, and the difficulty of getting electors to record their votes a second time. Those are serious obstacles in the way of its adoption. I am anxious that this Parliament shall not conclude its labours until it has provided a more effective system than we have at present. I have been in public life for nearly thirteen years, and on the first occasion, when I was returned to the Victorian Parliament represented a minority of the electors. Little over 100 votes more would have made me a majority representative; but I felt during the whole period that I sat that I was not the representative of the majority. I have come to the conclusion that it is very undesirable to perpetuate the present system. I am an ardent believer in majority rule. I believe that, although minorities should have representation, they should not have their wishes expressed to a degree entirely out of all proportion to their importance as a section of the community.
– The honorable member ought to move an amendment with the object of securing proportional representation.
– It is all very well for the honorable member to offer suggestions of that kind. I am prepared to take what I can get at present. I have no desire to ma”ke proposals which would merely confuse the issue, and possibly lead to a postponement of the desired reform. I accept the Government’s proposal as an instalment of a more perfect system.
– What does the honorable member regard as a perfect system?
– A system under which all parties are represented in proportion to their strength. The proposed scheme seems to me to promise to achieve that result as far as practicable under existing conditions. I believe that it should be compulsory upon the electors to exercise their preference. If an elector is not prepared to make a preferential choice, he should not vote at all. He should be placed in the same position as the man who regards none of the candidates as worthy of his support. If compulsory voting, were introduced, the electors would exercise their judgment to a far greater degree than at present, and this would probably lead to trie abolition of the three-party system. The electors would give their first votes for the men whom they desired to see returned, and their second preferences to the men whom they regarded as next best. They would naturally feel some interest in the successful candidate to whom they may have given their second preferences, and would probably be prepared^ to follow him on a later occasion. Under* a process of this kind, we should gradually have the electors becoming associated with two parties, and eventually the three-party system would be done away with. I regard the measure as an honest attempt on the part of the Government to grapple with a very intricate question. In view of our scattered population, and the great expense that would be involved in carrying out an exhaustive ballot, I think that the Government have adopted the next best scheme that could be brought forward.
– Would the honorable member make it compulsory that the electors should express their preference?
– Yes. I think that it should be compulsory upon the electors to express their preference in regard to candidates for election to this House in the same way that it is compulsory upon them to vote for three candidates in connexion with the Senate elections. The elector who will not express his preference must have a very, low idea of the duties of citizenship. I do not think much of the citizen who, when he was_ asked which of two candidates he intended to vote for, said that he did not care much for either of them, and thanked God that both could not be elected. When a man has those sentiments he should become a candidate himself, ‘ and endeavour to discharge duties which he regards others as incapable of performing. It is not too much to ask any man who desires to see his country progress to exercise his preference, even in regard to candidates whom he does not desire to see in Parliament. Any man who declines to give a preference vote must be a blind partisan, and bound hand and foot to some party organization which will not allow him to exercise his free choice. I would compel all such men to express their preference, and not to be bound by the judgment of others. We are suffering too much from the effects of the dictation of organizations which have verv little responsibility, but desire to seize the reins of power.
– I wish to withdraw my amendment, and substitute another in order to avoid unnecessary discussion. I propose to strike out the word “the” instead of the word “ preferential.” That would have the same effect, and would enable the feeling of the Committee to be tested.
.-! confess that there is some force in the statement made bv the Minister that I am interested in preventing this unscientific measure from becoming law.
– Why did the honorable member vote for its second reading?
– If the honorable member had been in his place he would know that I voted against the motion for the second reading because I did not think that the Bill would achieve the result that was claimed. The debate which has taken place since then has amply indorsed my view. I am strongly opposed to legislation of this imperfect character being placed upon our statute-book, because I do not think that the people should be in a position either to observe a law or leave it alone, just as they please. If preferential voting is to be provided for the expression of preference, it should be compulsory. My object would best be achieved by allowing the honorable member for Hindmarsh to move his amendment, and I desire to withdraw minein order that that may be dope.
Amendment,by leave, withdrawn.
– I move -
That the word “the,” line 1, be left out.
The honorable member for Laanecoorie considers that the adoption of compulsory preferential votingwill bring about a most desirable change in our method of conducting elections. I do not agreewithhim. Upon one occasion, I was a candidate for election to the Legislative Council of South Australia, and was opposed by two extreme Conservatives. My supporters could not, under any circumstances, desire that either of my opponents should be elected, because, in their view, they were the enemies of all progress.
– But one of them must have been worse than, the other.
– They were both so bad politically - personally they were perfect gentlemen, and treated me exceedingly well - that no believer in thepolicy of the LabourParty could possibly vote for them, except under compulsion. How could we reasonably ask men to give even a second preference to a candidate whom he regarded as an enemy to all progress? I did not succeed upon that occasion, but if I had secured the largest number of first votes, under a preferential system, the second preferences of those who supported my opponents would probably have resulted in my rejection. Owing to the election of such men as I have indicated to the State Parliament, the position of affairs in South Australia is so acute that the Government are being forced to ask for a dissolution.
As far as my own constituency is concerned, the exercise of the preferential vote would probably have no effect, because I expect to be returned by an even larger majority than that recorded in my favour upon the last occasion. I am opposed to the Bill because I regard the preferential voting system as fundamentally bad.
.- I am glad that the honorable member for Hind-; marsh has moved his amendment, because I believe that a majority of honorable members do not wish the Bill to be carried through its final stages. I pointed out during the debate on the motion for the second reading of the measure that in all probability it would not be carried very far through Committee. What I desire to see tested is the question whether the Government intend to bring into operation legislation which is to apply toonly one section of the Legislature. The honorable member for Kalgoorlie very properly said that he was opposed to the enactment of any laws which people could make applicable to themselves if they desired to do so. I am opposed to any law which will apply to only one section of the community. The Bill under consideration is merely intended to secure majority rule so far as one House of the Legislature is concerned. That is the question which I should like to see tested before we allow the measure to pass into that receptacle for which it is -most fitted - the Government waste-paper basket.
– I have no intention of discussing this Bill, but I wish to place upon record my opposition to a proposal to tinker with our electoral law in the last hours of a moribund Parliament. It seems to me that the Government should facilitate an- appeal to the country at the earliest possible moment. A rough-and-ready way of electing Members of Parliament has been in operation for many years, and until the people have been educated up to some other system, we are notlikely to secure a perfect system of parliamentary representation. The electors are unprepared for any change at the present moment. According to the statement of the Minister of Home Affairs, a mongrel system of preferential voting was introduced into Queensland, but during the past eleven years only four electionsmight have been upset had a more scientific process of ascertaining the choice of the electors been adopted. Yet the Government have brought forward a Bill towards the end of the session, and towards the close of the Parliament, embodying a system of preferential voting - a system which might be found to operate very well if we had time to thoroughly discuss and amend it. We know that the Hare-Spence system is very much better than the system which is provided for in this Bill, and other systems might be brought forward with advantage for the purpose of educating the public upon the subject of preferential voting. But for the Government to attempt to place upon the statute-book an amendment of the electoral law when the people are quite unprepared for it, and have not asked for it, seems to indicate that they do not know their business. There is plenty of other business to be transacted if the Ministry desired to proceed with it,_ but it appears to me that they are merely marking time. Here is a Bill, the fate of which was known a fortnight ago-
– Why did not the honorable member tell us of its fate at that time?
– The numbers were up a fortnight ago. I protest against this measure being brought forward merely for the purpose of killing time.
– Surely the honorable member cannot blame the Government for pressing the Bill forward after it has passed its second reading?
– The Government had no right to bring it forward at this stage of the session. The burden of the argument advanced by the honorable member for Laanecoorie during his speech upon the Bill was that upon one occasion he had been elected by a minority vote. While I do not see eye to eye with him in all political matters, I think that he makes an excellent representative, and that his selection under the rough-and-ready method which exists, reflects great credit upon his constituents. The same thing might be Said of the choice which is made by a majority of the constituencies. Until we can secure a more scientific system, and one which has been found to operate satisfactorily elsewhere, we ought not to waste time in considering proposals of this character.
.- Some of the reasonswhich have been advanced as to why this Bill should be killed are of an extraordinary character. For instance, some honorable members argue that because it is not proposed to apply it to the Senate it should be destroyed, others claim that it should be killed because it does not provide for compulsory preferential voting, and still others declare that they are opposed to it in its entirety. Personally, I am in favour of preferential voting. In Tasmania, we tried a much more complex system of voting than that which is provided for in this Bill. It was quite the antithesis of the Government proposals. The Hare system is infinitely more difficult and complicated than is that embodied in the Bill.
– The electorates in Tasmania to which that system was applied were not single electorates.
– It was applied at the first Federal elections, and it was also tried in connexion with two contests for the return of members to the Tasmanian Parliament. Whilst I opposed it because it provided for the representation of minorities-
– Was not the honorable member returned to this House upon a minority vote ?
– I was.
– If the honorable member does not believe in the representation of minorities, why does he sit here? Why not “ turn it up “ ?
– No doubt honorable members have heard the story of the man who was sitting upon an opponent, and whowas asked why he did not let him up. Hisreply was, “ If you only knew the difficulty that I had in getting him down, you would not ask me to let him up.” I believe that the preferential system of voting proposed in the Bill is so simple that any elector can understand it.
– Honorable ‘ members themselves do not understand it.
– I think that the honorable member would understand it if he wanted to do so. But he objects to it per se, and also because it is not proposed to make it applicable to the Senate elections. Personally, I am prepared to support a proposal to extend its provisions to elections for the Senate. At a later stage, I shall also endeavour to provide for compulsory preferential voting. The experience of Queensland demonstrates that unless a compulsory system is introduced, the measure will not effect what many of us desire. I must confess that I cannot understand the attitude which is taken up by some honorable members. Every day’s work is important, seeing that we are so pressed for time, andyet tenout of twenty-two members of the Labour Party voted for the second reading of the Bill. If they desired to kill it, why did they not vote against the motion for its second reading? I can understand the position of those who object to preferential voting-
– But an honorable member who is opposed to this Bill need not be opposed to thesystem of preferential voting.
– I challenge the accuracy of that statement. It is the duty of every honorable member who is in favour of preferential voting to make the Bill as perfect as possible. There is no reason why the advocates of that system should not make it a first-class measure.
– The whole of the Bill will require to be recast if its provisions are made applicable to elections for the Senate.
– No. An alteration in that direction would simply involve technical amendments. We can make the Bill provide for compulsory preferential voting-
– Why make it compulsory?
– Because I believe thoroughly in the system of preferential voting. The experience of Queensland, where the system is an optional one, is that it is practically ignored.
– And yet the honorable member supported the second reading of the Bill.
– Because in Committee I shall endeavour to provide for compulsory voting. I was informed days ago that after the measure had been carried into Committee it would be killed.
– It does not look like it.
– It does. The honorable member knows very well that the numbers are up. The ten members of the Labour Party, by whose votes it was taken into’ Committee, intend to kill it.
– I rise to a point of order. I deny the statement of the honorable member. He has accused members of the Labour Party of having supported the second reading of the Bill with the intention of destroying it in Committee. That statement is absolutely untrue.
– Is that statement in order?
– The honorable member for Maranoa knows very well that it has been said in the lobbies thattheBill would get no further than the Committee stage. The ten members of the Labour Party who supported its second reading have no intention of assisting to carry it through Committee.
– That is not so.
– We shall see whether those honorable members are in their places when the Bill is passing through Committee. I honestly believe that if it were brought into operation, it would, to a great extent, dish the Labour Party in Victoria.
– I did not vote against it on that ground.
– I think that the Labour Party are justified in viewing the Bill from the stand-point of its effect upon them. I also believe that the state of the parties in this House may have been responsible for the introduction of the Bill, otherwise I cannot understand why a measure of such importance should have been introduced during the last month of the session. But, apart from that consideration, I believe in the system of preferential voting. I think that the measure can be made a machine to give effect to majority rule, and for that reason I shall support it.
– What was the experience of. the operation of a similar system in Tasmania?
– The system which was tried in Tasmania was the very antithesis of that’ which is embodied in the Bill. There we tried the Hare-Clark system, which is practically identical with the Hare-Spence system. Its aim was to insure minority representation.
– That system could not be applied to single member constituencies.
– No. The object of the Hare-Clark system was to do away with majority rule, and to secure minority rule, in other words to provide for proportional representation. If applied to elections for the Senate, for example, it would probably result in the Labour Party, the supporters of the Reid-McLean party, and of the Deakin party each securing the return of a representative in the majority of the States. In Tasmania, after the Hare-Clark system had been applied to two State elections and to one Federal
– The honorable member believes in the principle?
– I do.
– For the Senate?
– I am prepared to support the application of the system to both Houses. If honorable members were not in earnest in voting for the motion that the Bill be read a second time, and there is now a. majority against it,they have been quilty of an absolute waste of time in carrying it into Committee.
.- I am rather surprised that a representative of Queensland should have introduced a Bill of this character. The Government assert that they wish majorities to be represented, and that this Bill is an attemptto give effect to that desire; but the Minister of Home Affairs, who comes from Queensland, knows that when the contingent voting system was introduced inthat State, there were two parties in the local Legislature, and that-
– There were always three parties.
– I was under the impression that there were only two, but let us
.- As a representative of Queensland, who believes in this system, I desire to briefly address myself to the question. While the contingent voting system has not completely realized all that was expected of it in Queensland, it has been, to a certain extent, availed of, and the fact that comparatively few informal votes are cast under it proves that the people have found no difficulty in making themselves familiar with it. On one or two occasions, as the result of the contingent vote, a return has been altered. The system provided in this Bill is much simpler than that which prevails in Queensland, under which the elector has to cross out the name of every candidate ex cept the one for whom he wishes to cast his primary vote. The numeral “ 1 “ is not used. The elector leaves one name on the ballot-paper untouched as an indication of how he wishes to record his primary vote, and he is expected to express his contingent votes by placing opposite the remaining names the figures 2, 3, 4, and so on. Under this Bill, however, no names would be deleted from the ballot paper. The’ elector would begin by writing the figure 1 opposite the name of the candidate of his choice, and show his preferences by filling in, after the names of the other candidates, consecutive numbers. I fail to see where any difficulty is likely to arise under this scheme. I am not in favour of making it compulsory, for I do not think we are called upon to compel the people to use a right conferred on them. All that is necessary is to enable the elector to make known his will. If, having been endowed with the power to take a share in the government of the Commonwealth, he does not choose to use it. the responsibility rests solely with himself. If a majority of the electors refrain from going to the poll, and those who are returned make laws that are unsatisfactory to them, they have no right to complain ; they certainly ought not to complain of .minority representation. We make many laws conferring on the people rights, which we do not compel them to exercise. We make coercive laws for the prevention of evil, or injury ; but there are in our statute-book many laws which confer on our citizens rights which, if unexercised, do injury to no one but themselves. For instance, we make it possible for people to select land, to take up grazing areas, or homestead leases, but we do not compel every citizen to exercise any one of those rights. In the same way we have conferred the franchise on the adult population of the Commonwealth, and if a majority of the people value it so lightly as to refrain from exercising it, they have no reason to complain of any one but themselves. If the system of preferential voting in the Bill be adopted, there will be no need for newspapers or party leaders to complain that the Parliament of the Commonwealth is elected by minorities. The electors will have an opportunity to select a Parliament representing the majority of the people. I have a distinct recollection of the first Commonwealth elections in Queensland at which resort was had to the contingent voting system. It was used then in connexion with the electorates of Brisbane and Moreton, and, instead of prejudicially affecting the position of the candidates who were eventually returned.1 it immensely increased their lead, showing that the first choice of the electors was actually the choice of a majority of the. constituents. 1 In the Brisbane electorate 866 contingent votes were polled for the successful candidate, the late Mr. Macdonald Patterson, and only seventy-two contingent votes were polled by the candidate who was second on the primary count. The contingent vote thus increased the lead of the successful man. And so with the electorate of Moreton, in which out of the 381 contingent votes polled, 321 went to the leading candidate. These facts show that the man who heads the poll on the primary count is most likely to lead after the contingent votes have been counted. In the event of the contingent votes being divided amongst the two candidates who were second and third on the primary court, and whose policies were practically the same, the candidate with a diametrically opposite policy who headed the list on the first count would naturally be rejected, and I think that no objection could be raised.
– I hope that the Committee will stand by the Bill. The honorable and learned member for Corinella has directed certain criticism against it, based upon the working of the average system.
– My objection is to the Bill.
– The honorable and learned member says that if we apply the average system-
– I say that the system proposed by the Government is worse than the average system, and is no better than the one now in force.
– At present we have single electorates throughout the Commonwealth, and we have to face the fact that members are sometimes returned by minorities. Our desire is that in the final selection the electors in every constituency may have an opportunity to so express their opinion as to return a candidate who represents a majority.
– This Bill will not enable that to be done.
– Under the Bill we give the electors the power, and if they choose to exercise their option they will be able to secure majority representation. Practically, with the exception of the honorable and learned member for Corinella, every honorable member who has spoken has admitted that the existing system is unsatisfactory.
– I am not responsible for the opinions of others.
– Honorable members are responsible for the opinions they express. We made inquiries as to what system was preferable to the existing one, and it was suggested that the second ballot was. the proper one to adopt. It may be that others think that there is a still better system than that proposed by the Government. There is, for instance, the exhaustive ballot, which is in operation in France where at the second election all the candidates again go to the poll, and one may secure a victory there by mere plurality of votes. Under the second ballot system in other places, only those who have obtained the highest number of votes go to the poll at the second ballot, the other candidates being excluded. We contend that under the system which we propose all the advantages of the second ballot can be obtained with the one voting paper. Our system is practicable, and the best effective system that has been proposed. The average system, on the other hand, is impracticable and impossible, and I do not know any one who advocates its application to elections to the House of Representatives.
– I have not done so.
– But the honorable and learned member’s speech was devoted to showing how admirable the system is.
– No. I said that it was mathematically more correct than that provided for in the Bill, but practically exceedingly difficult. Both systems are bad.
– We have to consider how we can remedy the existing system. The proposals of the Government are the best and most practicable that have been put forward, and I therefore ask the Committee to accept them.
Question - That the word “the” proposed to be left out stand part of the clause - put. The Committee divided -
Ayes … … … 18
Noes … … … 26
Majority … … 8
Question so resolved in the negative.
Amendment agreed to.
Debate resumed from 30th August (vide page 3736)) on motion by Mr. Groom -
That the Bill be now read a second time.
– The Bill has been introduced to enable proposed alterations of the Constitution to be submitted to the people. One of these is that our parliamentary elections should be held at a later period of the year than is now permitted by the Constitution. The Bill provides generally for the taking of referenda, and is closely related to our electoral law. Therefore, whenever the electoral law is amended, this measure must also be amended.
– We must have absolute uniformity. In the States the ordinary electoral machinery is used for the taking of a referendum.
– That shows the need for assimilating as quickly as possible the electoral law of the Commonwealth and the States.
– Great strides have been taken in that direction.
– One realizes the nature of the democratic Constitution under which we live in considering a Bill such as this. What was spoken of ten years ago theoretically as something to look forward to is now an accomplished fact, and we are proceeding to demonstrate the practicability of the principle of the referendum, and the facility with which the Constitutionmay be altered. I admit that the passing of the Bill does not alter the Constitution, but the confirmation of measures submitted by the process provided for in it would do so. Many nations would give much to be able to accomplish alterations in their Constitutions so easily. Therefore this Bill, . small and apparently unimportant as it is, is of value as indicating the democratic era in which we are living. The Bill is a measure which can be discussed with greater advantage in Committee than upon the motion for the second reading. I say that the more readily because I have not looked into the measure very carefully, and therefore am not in a position to discuss it in detail. I trust, however, that it will not be rushed through before honorable members have had a reasonable opportunity to give it careful attention.
.- No doubt the Bill is very largely a Committee measure. The Bill ought to have been introduced at least twelve months ago. It is purely a machinery measure, tobe taken advantage of whenever an amendment of the Constitution is required, and it should have been complete in itself instead of being composed for the greater part of references to our electoral legislation, which is more or less of a transitory nature. There are one or two provisions in the Bill which may very well be referred to at this stage. I think that the Government are confusing the functions of the Judiciary with those of the Executive. In clause 6, provision ismade that the GovernorGeneral may cause to be attached to the writ for the submission of the proposed law to the electors a copy of the proposed law,or a copy of a statement certified to be correct by a Justice of the High Court setting out -
Surely if is not desirable to force the Judiciary to forestall in the manner proposed their judgment as to the meaning of the proposed law.
– They will be required to give their certificate only as to the form of the section in which the proposed amendment is to be incorporated.
– The provision goes beyond that. The certificate will have to set out the material parts of the Constitution proposed to be altered, and as they would be if the proposed law were passed and assented to. In other words, they are asked Before any argument takes place before them to forestall their deliberate judg ment as to the meaning of the proposed law.
– That would be a great mistake, because it would lessen litigation.
– The honorable member is so permeated with suspicion that one cannot offer any criticism upon a Bill without exciting his opposition. I would point out to him that at the Federal Convention I endeavoured to have inserted in the draft Constitution a provision which would permit the Attorney- General to submit matters of this kind for the judgment of the High Court before any litigation was entered upon. Very important issues have been settled in Canada and in the United States in that way. Had my proposal been agreed to, we should nothavehad such a large array of forensic talent appealing before the High Court in order to argue questions relating to the constitutionality of our Acts, and attempting, among other things, to bring the States Governments within the operation of the Commonwealth Arbitration Act. At all events, we could have dispensed with a great deal of litigation by bringing any questions in doubt before the Court immediately after a law had been passed. My point is that under the Bill as it stands it is proposed to ask the High Court, before any argument takes place before them, to explain the effect of the proposed alteration of the Constitution. The amendment that I contemplated in the Constitution did not provide for any judgment of an extra judicial character being given with regard to our legislation.
– It may be that we have power under the Constitution to do as the honorable and learned member desired.
– I do not think so. The necessary provision could not be made in the Judiciary Act, because we had no power under the Constitution to do as I have indicated. The power is conferred by some of the American States and the Canadian Constitution, and has been availed of with great advantage. I think that I am fully entitled to question the wisdom of asking a Justice of the High Court, without argument, to give a sort of judicial pronouncement as to the meaning of certain proposed legislation. In the event of matters being argued before them subsequently, the Court might be very much embarrassed by being brought face to face with a previous decision of this nature. I do not know what would be the position if the Justice were proved to be wrong. Suppose that a certain matter had been submitted to the electors upon the opinion of a Justice as to the effect of a proposed law, and it was subsequently found, after mature consideration and argument, that the prima facie impression conveyed to the electors was wrong. Then we should have a law adopted under a mistaken view with regard to its meaning. That is possible under the Bill. I think that I have shown that the Bill deals with something beyond mere matters of procedure. I quite approve of the provision that the result of the vote given by the electors shall be tested in the Court only at the instance of a State or of the Commonwealth. The matter is one upon which we should not allow any individual to raise a question.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 and 2 agreed to.
Clause 3 (Definition).
– I should like to know whether it would be possible to extend the scope of the measure so as to permit of any question, including one that did not involve an alteration of the Constitution, being remitted by way of referendum to the electors? Personally, I am very glad, indeed, that we have accepted, almost without discussion, the principle of the elasticity of our Constitution. The American people make somewhat of a fetish of their Constitution, which has been referred to by their plutocracy as one of the grandest checks upon democracy that could possibly be devised. I should be very sorry to see any manifestation of that spirit in Australia. The Commonwealth Constitution should be an instrument for broadening our powers of selfgovernment. I am very glad that we have indicated our readiness to alter the Constitution whenever we think it is desirable, and that we are determined not to allow the letter of the Constitution to prevent us from doing that which we regard as beneficial for the whole of the people.
.-The object of the Bill is merely to deal with alterations of the Constitution, and contemplates a referendum upon matters affecting both the Commonwealth and the States. The machinery provided for might, with modifica tions, be used in some otherBill for the purpose of enabling a referendum to be made upon other matters ; but it would be undesirable to mix up a general referendum upon matters in which, the States are not concerned with machinery which is intended to apply merely to the amendment of the Constitution.
– Perhaps so.
Clause agreed to.
Clauses 4 and 5 agreed to.
Clause 6 -
The Governor-General may cause to be attached to the writ a copy of the proposed law, or a copy of a statement certified to be correct by a Justice of the High Court setting out -
the text of the proposed law,
the material parts of the Constitution proposed to be altered by the proposed law, and
the material parts of the Constitution as they would be if the proposed law were passed and assented to.
Mr.GLYNN (Angas) [5.58].- This is the clause to which I directed attention. Perhaps the Minister will give honorable members the benefit of his opinion.
– It was not out of any disrespect to the honorable and learned member that I did not reply at an earlier stage. I am sure that every honorable member values very highly any criticisms that he may offer, because we all feel that he brings to bear upon any subject to which he gives his consideration the very best that is in him. If he will look at the clause more closely he will find that ithardly goes so far as he has indicated. We desire to have in some certified form a statement of the proposed alteration of the law, and of the way in which the Constitution will read when altered, so that the electors may have before them some authorized statement, free from any party suggestion.
– Why not insert the word ‘ “ shall “ ?
– Because we cannot impose other than judicial duties upon the Justices. Under the Constitution the duties of the Justices of the High Court are defined, and we cannot compel them to undertake any other duties.
– Then they may refuse to performthis work.
– But the matter is put in such a way that I think they would agree to perform it.
– But they may refuse to act.
– They may, but I do not think that they will. They are merely asked to certify to the text of the proposed law. The text of the proposed law is the form in which a Bill has passed Parliament.
– But surely we do not want a Justice of the High Court to certify to that?
– The clause also provides that a Justice may certify to the material parts of the Constitution proposed to be altered by the proposed law. We generally propose to amend an Act by the omission of certain words, or by the insertion of others, or by the addition of fresh clauses. Whatever alteration may be made in the Constitution will be made in the text of the Constitution itself. Under the Bill a. Justice of the High Court would be asked to certify to the material sections proposed to be altered, and to the material parts of the Constitution which would be affected if the proposed law were assented to. In other words, he would be asked to certify to the form in which the sections of the Constitution proposed to be altered would read if the proposed alteration had actually been made.
– He would be asked to make a reprint?
– As far as possible.
– Surely we do not want a Justice of the High Court to do that.
– It is advisable to have a certified statement in an authoritative form.
– The Clerk of the Parliaments could undertake that work.
– It would carry more weight if the proposed alteration were certified to by a Justice of the High Court.
– A Justice would have to go to the parliamentary authority for the material for his statement.
– The Justice would take the Act which had been passed by Parliament and the Constitution!, and would issue an authenticated statement to the electors, who would then know exactly what was proposed.
– Suppose that a dispute arose as to what were “material parts”?
– In such a case, the Justice would decide the . matter.
– But there might be a dispute as. to what constituted a “ material part.”
– In that case, we should have to allow the Justice of the High Court to certify.
– By so doing, we should bring him into the political arena.
– No; he would merely certify as to points of law.
– I might not hesitate to call a particular part of the Constitution a ‘ ‘ material part, ‘ ‘ but he might not regard it as such.
– The honorable member is just as free to express his opinion upon a judgment of the High Court.
– But one’s opinion upon the judgment of the Court would not affect that judgment, whereas our opinion upon what was the material part of the Constitution proposed to be altered might affect the expression of opinion by the Justice. When we are criticising the opinion of a Judge, we are criticising it before a Court of Appeal, namely, the people.
– We frequently hear the judgments of the High Court criticised. We had a notable instance of that in connexion with the case which involved the liability of Federal officers to pay income tax. The serious point in the criticism of the honorable and learned member for Angas is that there might be some difference of opinion if a Justice of the High Court were called upon to give an abstract opinion upon any specific proposal to alter the Constitution. The desire of the Government is to insure the presentation of an impartial statement to the electors so that the latter may be able to say, “No matter what others may think, this is the statement of a Justice of the High Court.”
.- I think that we shall be committing a great mistake if we agree to the retention of the words “ Justice of the High Court.” Either we are asking a Justice of that tribunal to give an opinion as to the effect of a proposed law, or else we are asking him to declare theway in which the Constitution . would read if a proposed amendment were given effect to. The latter can scarcely be intended. We would never ask a Justice of the High Court to undertake work of that character. The object of paragraph c is to secure an expression of opinion as to the effect on our Constitution of any proposed amendment, assuming that it were assented to. That statement would be given by a single Justice without
Evidence of any proclamation or other act of state of any State may be given in all Courts within the Commonwealth by the production of a copy thereof, either -
proved to be an examined copy thereof, or
I think that the accuracy of a State Act is similarly proved. If I am not mistaken the method of proving the form in which Bills pass the States Parliaments, and the records of those Parliaments themselves, is the production of a certificate under the hand of the Clerk of the Parliaments.
– A printed copy of a Bill is sufficient.
– Why should we be so particular to tell the electors the exact form in which we have passed any law ? If we do that we shall be submitting to them all sorts of Chinese puzzles. Take the Braddon clause as an illustration.- When it is submitted to the electors, surely we shall not explain under the hand of a Justice of the High Court the effect of the amendment of the Constitution proposed. As a rule, the electors have a very poor idea of the elaborate arguments which have been employed in the Legislature before a Bill has passed through the crucible of the two Houses of Parliament. If they were compelled to listen to the -pros and cons advanced in this House, they would probably be more confused than when they entered it. Instead they arrive at conclusions in a rough-and-ready way upon general principles.
.- I shall be glad to learn that the Minister recognises the force of the’ criticism of the honorable and learned member for Angas. It seems to me that this clause may be interpreted in
– I think so.
– If that be what is intended it is not necessary to requisition the services of a Justice of the High Court. The certificate of the Clerk of the Parliaments, or the certificate of the Attorney-General would be quite sufficient. If, on the other hand, the provision means that a Justice of the High Court is to certify generally as to what portions of the Constitution __will be affected by the alteration proposed, and as to the general meaning of the Constitution, in consequence of that alteration, we are treading upon very dangerous ground. Let me give a specific instance to illustrate my point. Let us suppose that a proposal is made to amend section 87 of the Constitution which is known as the “ Braddon section.” Under this Bill two things could happen. A Justice of the High Court might simply certify that section 87 was the material part of the Constitution proposed to be altered, and he might certify the form in which that section would read if the proposed alteration were actually made. In other words, he might make merely a textual statement. It is not), necessary to avail ourselves of the services of a. Justice of the High Court to do that. But if on the other hand he were required to certify as to what other financial provisions of the Constitution would be affected to any material extent by the proposed amendment of section 87, we should be getting on to very dangerous ground indeed. I strongly urge the Government to accept the view that all we desire is the setting out of the text of the proposed law, and of the verbal alterations which, would be made in the Constitution bv the proposed amendment. Either the Justice of the High Court is to certify merely to verbal correctness, or he is to certify to legal questions. The first duty is unnecessary, and the second is dangerous. In my judgment we might use the words “ the text of “ in both paragraphs a and 6.
– Does the Minister seriously urge th’a.t that is the kind of work that we should ask a Justice of the High
Court to perform? Surely it is the function of the Clerk of the Parliaments? Who certifies to the correctness of the reprint of Acts which hare been amended?
– That is done in the AttorneyGeneral’s Department, and it is checked by the officers of Parliament.
– That is exactly what ought to be done in this case. The amendment which the Minister proposes is merely that a certificate shallbe issued as to the correctness of the text.
– And as to material parts.
-That means that the Justice is to certify that certain other sections which are not verbally amended are yet affected by the amendment. In other words, he is to give opinions on questions of law that will not be binding. That is very undesirable-
– It is highly desirable that we should obtain them in advance.
– But they would not be in the least binding.
– They would be an indication of what would probably be held to be the law.
– No. The Justice would issue a certificate without hearing argument. No Court is qualified to interpret every part of a complicated instrument like the Constitution of the Commonwealth, without hearing arguments on both sides.
– I am inclined to think that it would be a very good thing if we could abolish argument in these matters, and allow the Justices to decide them.
– I wish to impress upon the Committee’ that the proposal of the Minister is that the Justice shall certify that in his opinion certain sections of the Constitution are affected, although the amendment in terms does not relate to them, and that he is also to certify what those unnamed sections read in conjunction with others that are amended will mean. I think we are nowentering upon a course which the Ministry did not originally contemplate, and that, after all, the Attorney-General is the official who ought to deal with these questions. The certificate of the AttorneyGeneral or of his Department,coupled with that of the Clerk of the Parliament’s, should be sufficient. If the certificate is to be merely one as to textual correctness, there is no reason why it should be issued by a Justice. If, on the other hand, it is to show what parts of the Constitution are affected by an amendment which does not directly relate to them, the officer will be required to deal withvery abstruse questions of law. A Justice might take a wrong view of the effect of the amendment, with the result that a preconceived opinion which would not be binding, would be placed before the electors. If a case relating to the amendment came before the High Court, such an opinion would not, and ought not to be, binding. The opinion of one Justice ought not to be binding; the other Justices might all differ from his view.
– I think the only weak point of the Government proposal is that it contemplates taking the opinionof one Justice instead of several.
– Even the opinion of several Justices might not be binding, because in certain cases resort may be had to the Privy Council.
– This is no part of* the duty of a Justice of the High Court. What would happen if a Justice declined to carry out this work?
– It is certainly no part of the duty of a Justice. I do not like the proposal. I am prepared to trust the Attorney -General’s Department and the Clerk of the Parliaments to give an approximately correct opinion on these points.
– That is practically what was done when the Constitution was submitted.
– But that was only as to the wording of the Constitution.
– It was the same kind of thing. I ask the Minister to agree to an amendment providing that the certificate shall be issued by the AttorneyGeneral and the Clerk of the Parliaments, or by the Clerk of the Parliaments alone. I do not wish to move a hostile amendment, and the honorable and learned gentleman admits that there is some force in the objection raised by the honorable and learned member for Angas. The opinion of the Justice would not be a determination of law, and the proposal in the clause as it stands would drag a Justice into the vortex of politics. I ask the Minister to agree that the certificates of the AttorneyGeneral and the Clerk of the Parliaments are sufficiently honorable as to render it unnecessary for us to have to appeal to the High Court to do this work.
.- It is not surprising to find legal members of the House anxious to avoid anything in the nature of short cuts to decisions.
– This clause will not mean short cuts.
– I think that it will. My only complaint is that the Ministry have not gone far enough. I think that they should have proposed to obtain the opinion, not of one Justice, but of the High Court.
– There might not be time in some cases to enable the opinion, of the Court to be obtained.
– No; but it is an alternative course which the Ministry may adopt.
– We could not force, the Court to give an opinion on these questions.
– I admit that, under the existing law, we could not do so; but I think that an amendment of the law which would enable us to appeal to the Court in regard to all these matters would be a very salutary and proper one. The honorable and learned member for Corinella has said that the proposal of the Government would really mean dragging the Court into the vortex of politics. He might just ais well make the same assertion with regard to the Canadian law, which, so far as I have been able to ascertain, has worked exceedingly well. There the Court is compelled, at the instance of the Attorney-General, to give an opinion on matters which, so far as political questions are concerned, may be subject to the decision of the people.
– Is not that opinion given after the law is law?
– No; it may be given on appeal.
– That is so. I have never heard that any serious difficulty^ has arisen from that provision ; I have not heard that the Court there has been dragged from that position of dignity and aloofness which we all think it should occupy.
– But the question there submitted to the Court is often one as to whether a certain Bill is within the constitutional power of the Dominion Parliament.
– Quite so; and in this Bill the only proposal is that the Justice shall issue a certificate indicating to the people what the effect of a proposed alteration of the Constitution would be. The honorable and learned member for Corinella has pointed out that some amendments might affect parts of the Constitution to which they did not directly relate, and I think it is only right that there should be appointed some authority learned in the law who would be able to deal with such questions. Anything which will have the effect of committing the Court to an expression of opinion is in the direction of short cuts and should be adopted^ by us. I see no danger in the provision, and my only regret is that the Government have not gone a little further, so that we should be able to obtain the opinion, not of one Justice, bub of the High Court Bench, in regard to al proposed amendment of the Constitution to be placed before the people.
– I quite agree with the last remark made by the honorable member for Bland. lt would certainly be well, in cases of doubt, if we could obtain the decision of the Court on the question of whether or not certain, proposed legislation was within, the constitutional power of the Commonwealth Parliament, instead of our having to pass the Bill before being able to have the matter determined. It seems to me that, whilst the proposal in this clause that we should obtain from a Justice of the High Court a definite opinion regarding the matters stated, is excellent in/ theory, it would, from a political point of view, prove unsatisfactory. All these questions will be political ones, and if the politicians interested in them are incapable of placing their views in regard to them before the electors, they will be very different from those who took parti in the Federal campaign. I think honorable members will agree that during that campaign no point was missed. The most outrageous statements were made, and yet the people cheerfully accepted the Constitution. We ought to refrain as much as possible from appealing to the Justices in any matter regarding our Constitution. The day will come when this Parliament will have so many powers that it will practically have, so to speak, original jurisdiction. I do not say that it will be to-morrow, or next week; but the time will come when the electors will vest in us many powers that we do not at present possess.
– In my opinion, it is not desirable that there should be the possibility of conflict between Justices of the High Court and politicians, but the proposal to have copies of a proposed law certified to by a. Justice of the High Court, setting out, not only its text, but the material parts of the Constitution proposed to be altered, and as they would be if the law were passed, might lead to serious controversies. It would be argued that Justices differ as to the interpretation of the Constitution, and the bringing of the High Court into controversial politics would not benefit that institution, norwould it lead to the elucidation of the questions in dispute. I agree with those who contend that the arrangement provided for in the clause would be better left to an officer of Parliament and the legal authority advising the Government. In my opinion, it is only a. matter of time when the powers of the Commonwealth Parliament will be so much enlarged that this will be practically a sovereign Parliament. Notwithstanding the fact that’ we have a written Constitution, there is a spirit of unification amongst the people. Their desire is to have one national Parliament which will deal with all questions affecting Australia as a whole. I do not detract from the good work done by the Parliaments of the States, when I say that the people feel that our powers are too restricted.The measure is necessary to provide machinery for the extension of our powers from time to time as the people think fit to allow it. Another difficulty which occurs to me in connexion with the clause is that the Justices of the High Court may decline to undertake the duty imposedupon them. No doubt they would desire to meet the wishes of Parliament ; but they might be averse to giving extrajudicial decisions in regard to points which might ultimately come before the Court., Therefore, I ask the Government to suggest some other way of providing for these certificates. No doubt information of the kind referred to should be afforded when a proposal is submitted to the people ; but I think that the Government of the day should be responsible for any statements that are made in regard to the effect of their proposals.
– The Minister of Home Affairs in admitting that the honorable and learned member for Angas had brought to bear on this clause avery important criticism voiced the opinion of the Committee generally. It seems to me that we should hesitate about passing the clause as it stands. To my mind, it confuses the executive and judicial functions of government. Probably an alteration could be made which would meet the destructive criticism levelled against it. We all agree that a machinery Bill is necessary to give facilities for altering the Constitution from time to time as the necessity may arise, and I share the view of the honorable member for Wide Bay that, as time goes on, it will be found, that the people must be appealed to for extended powers. At present we are “cribbed-, cabined, and confined.”
Mr.Fisher. - The people will demand the exercise of larger powers by the Commonwealth Parliament.
– To some extent, they are doing so now, although they are being largely misled as to what we are actually doing. Unless we are given wider powers, we shall not be able to achieve all that was aimed at when Federation was established. The clause may create conflict between the Executive and the Judiciary. A Justice of the High Court might give an opinion quite contrary to that of the Executive of the day, which might find itself frustrated thereby in its desire to put a proposal before the electors. The GovernorGeneral is to cause to be attached to the writ a copy of the text of the proposed law; but as the honorable and learned members for Angas and Corinella have pointed out, it is not necessary that it should be certified to by a Justice of the High Court. The Courts, I believe, generally accept printed copies of Acts as correct pronouncements of the law; but when further confirmation is required a certificate is given by the Clerk of the Parliaments. Similarly, I think that a certificate as to the correctness of the text of a proposed law might.be obtained from some officer other than a Justice of the High Court. The Justice is also to certify to the material parts of the Constitution proposed to be altered. But while any one mayknow what is the intention of a proposed alteration, it is not always possible to say exactly what its effect will be. Often an alteration has a much wider effect than was intended. It is quite contrary to my notions of the proper working of constitutional government to obtain a decision from a Justice before the pros and cons have been argued in Court by gentlemen learned in the law and representing the two sides of the issue. The certificate of a Justice of the High Court obtained before he had heard argument on the question, would therefore be unsatisfactory. In Switzerland, when a proposed law is referred to the people, copies of it are exhibited on railway stations, at post-offices, at the entrances to churches, and at other places, and the electors are asked to say whether they will or will not accept it. An epitome of a proposed law might be something quite different from the law itself.
– I understand that the Justice is to be asked to give, not a decision, but an opinion.
Mr.G. B. EDWARDS. - Yes ; and a Justice who has given an opinion in the manner provided for may afterwards be appealed to as to its correctness. What we desireis the expression of the will of the people andthe facilitation of reference to them. I am a believer in the referendum. It isoften the readiest way out of great political difficulties. It would, however, be impossible to refer such a proposal as the Tariff to the popular vote, and there are other legislative proposals in regard to which it would be equally useless to ask the peopletovote yea or nay. Still, I sympathize with the suggestion that the measure should have gone further, and provided for referenda in regard to other than constitutional amendments. Taking the Bill as it stands, I say that any proposal to amend the Constitution must be so simple that it can very well be left to the various political parties to explain to the people what is meant. Then if there is any difficulty in determining what is meant by the Legislature an appeal may with some reason be made to the High Court. I think that the Minister will act wisely if he withdraws the clause until he can give it more consideration. It has been proposed that it should be slightly amended.
– The Minister of Home Affairs said that he would have no objection to inserting the words proposedby the honorable and learned member for Corinella.
– I do not know that it would be wise even to pass the clause in the proposed amended form. I am quite sure that honorable members on both sides of the Chamber have the same objectin. view, namely, to obtain . an expression of the real will of the people with regard to any proposed amendment-; and, that being so, I would suggest that the Government should very carefully reconsider the whole question. It seems to me that under the clause as it stands a conflict between the Judiciary and the Executive would be almost inevitable. In the first place, I cannot conceive of any selfrespecting Justice consenting to comply with the requirements of paragraphs b and c. He would immediately foresee the difficulty in which he might be placed by pronouncing an opinion upon a matter which might subsequently come before him for adjudication. I think that in view of the friendly, but at the same time destructive, criticism which has been directed to the provision it should be withdrawn for the present.
– I take this opportunity to congratulate the Committee upon the reappearance of the honorable, member for South Sydney. I am sure that we are all glad to see him restored to health, and able to devote himself to the careful criticism of such measures as that before us. I recognise that honorable members fully appreciate the fact that this is not a party Bill, but a mere machinery measure, and that it is the general desire to pass it in the best possible form. Our object is to insure that when a change of the Constitution is proposed the people shall have the matter placed before them in the full light of “day, and with the best knowledge as to what they are being asked to do. No one could be more removed from political bias than a Justice of the High Court, and the clause was framed having that knowledge in view. I quite, appreciate the remarks that have fallen from the honorable members for Wide Bay and South Sydney and the honorable and learned members for Angas and Corinella, and I would suggest that the clause should be allowed to pass for the present with a view to the Minister giving it his best consideration and endeavouring to achieve the purpose aimed at, whilst removing any grounds for objection.
– Why not postpone the clause ?
– I have no objection to postponing its consideration until we reach the end of the Bill; but I wish the matter to be dealt with as soon as possible.
– Why not leave out all reference to the Justices of the HighCourt?
– I do not wish to do that, but to leave the whole matter to be reconsidered by the Minister.
– Some honorable members will vote against any proposal to refer the matter to a Justice of the High Court.
– I shall have no objection to recommitting the clause at the request of any honorable member.
– Why not postpone it?
– That would amount to the same thing.
– The object of the clause is to insure that the people shall be placed in possession of all the facts relating to any proposed alteration of the Constitution and that they shall understand the effect of the alteration. Certain comparatively unimportant amendments of the Constitution are now in the minds of Ministers, but we haveto look a little further ahead. We have to contemplate the possibility of amendments of a far-reaching character being made at some future time, and it seems to me that it would be desirable to place the public in possession of a judicial interpretation of any proposed alteration to which they might be asked to assent. It is intended that the Judge’s certificate shall be sent to the Governments of the States, and that it shall be published at the various polling, places and other public institutions, so that the electors may become acquainted with the purpose and meaning of the proposed amendment, and, personally, I see no objection to the clause as it stands. If it were altered in the manner suggested by the honorable and. learned member for Corinella, so that all that would be required would be a certificate as to the text of the material parts of the Constitution proposed to be altered, and of the material parts of the Constitution as they would be. if altered, it should not be necessary to enlist the services of a Justice. All that the Justices would then be required to do would be to perform a purelyclerical work, such as might very well be done by the Clerk of the Parliaments, or by some officer in the Department of the AttorneyGeneral.
– Some judgment might require to be exercised as to the material parts of the Constitution that would be affected - that would not be merely clerical work.
– No; but if the Justices are merely to be required to certify that the parts of the Constitution that would be affected by the proposed alteration have been correctly copied, the provision is unnecessary. On the other hand, in view of the possibility of radical changes being proposed in the future, perhaps as the result of a demand on the part of the people, we should do well to obtain the opinion of a Justice of the High Court as to their effect. ‘
– We could tell them that.
– Yes ; but we might propose to insert words which would have a far more serious effect than we anticipated.
– The objection raised is that the Justices might interpret the proposed amendment without hearing argument, and pronounce an opinion beforehand on a question that might subsequently arise for adjudication.
– Yes ; but the Minister of Home Affairs is considering the advisability of inserting certain words which would have the effect of calling upon the Justice to merely certify as to the text of the Constitution as proposed to be altered.
– The material parts of the Constitution affected by the proposed amendment would still have to be selected.
– Then, in that case, I think that a Justice of the High Court is the proper person to perform the service required.
.-I understand that the Attorney-General has consented to recommit the clause?
– If any honorable member desires that it shall be recommitted. The Minister may decide to recommit the clause without being requested to do so.
– I am strongly opposed to placing the Justices of the High Court in a position superior to that occupied by Parliament. It is perfectly right that the High Court should be called upon to give decisions as to the constitutionality or otherwise of the laws passed by this Parliament, but I do not see any reason why we should ask them to step in beforehand in the manner provided for in the Bill. The honorable member for Robertson has suggested that some radical alteration of the Constitution may be proposed; but I do not suppose that that will take place except as the result of a strong demand for it by the electors. No doubt, agitation would take place for a long time beforehand, and the electors would, by the process of public debate, become educated as to the purpose of the proposed amendment. I do not for one moment question the impartiality of the High Court Justices, but I’ think that Parliament will be able to see that the public are not misled with regard to the effect of any proposed amendment. Two proposals for the amendment of the Constitution have been sprung upon us with lightning-like rapidity. One, in the direction of altering the date of the elections, is comparatively unimportant, but the other is of a more serious character, in that it is proposed to confer upon the Commonwealth power to earmark certain revenue, three-fourths of which the States would otherwise be able to claim. Upon neither of these questions would it be necessary to secure an interpretation of the proposed alterations by a Justice of the High Court. The electors would be sufficiently instructed by those who addressed them from the public platform and in Other ways. The Justices of the High Court have already enough to do to decide whether or not the measures placed upon the statute-book are constitutional.
– That question is not involved. If the people agree to the amendment, it will be constitutional. Our object is to insure that the people shall understand what they are being, asked to do.
– We have reached a very sorry position if we have to avail ourselves of the services of a Justice of the High Court to tell the electors of Australia what we propose to do. Parliament is supposed to safeguard the interests of the people, and if we have to drag in the Justices of the High Court in the way that is proposed, we shall find that politicians will throw upon them a lot of the work which we ourselves ought to perform. For that reason I think that the consideration of the clause should be postponed, or that it should be recommitted at a later stage.
.- I do not quite appreciate the tone which the AttorneyGeneral has adopted in regard to this matter. If the Government are determined to pass this clause in its present form, those who are opposed to it might just as well vote against it now. I have no desire to allow the Judiciary to intervene i.i any way between a proposal of this Parliament and the people who are to give a decision upon the plain facts of the case. I do not say that a Justice of the High Court might not “be the most competent authority, to determine what would be the effect of a proposed alteration of our Constitution. But I contend that the occupant of a judicial office is expected by the public to take less interest in purely controversial matters-
– Is not the question which is involved here purely a legal one?
– In any proposal which may be submitted to the electors for their ratification, the question involved will be a purely political one. When the present Constitution was before the electors, nearly every lawyer expressed his opinion of what its provisions meant, and in two or three instances it has been found that the opinions of the most eminent authorities were erroneous. We cannot expect greater wisdom on the part of the Justices of the High Court than was evidenced by those who have already erred. My objection to the clause is that when once we ask a Justice to express “an opinion other than a judicial one, it may be bandied about upon the public platform, and it .may ultimately prove to be directly in conflict with a judgment of the Court itself. I ‘hold that the people will demand broad national powers for this Parliament, and consequently the Justices of the High Court ought not to be asked to determine what are the “material parts” of the Constitution proposed to be amended in the case of a referendum which has for its object the enlargement of our powers. Let us suppose, for example, that the High Court Bench were unconsciously influenced by the idea that we intended to reduce the powers of the judicial authority by enlarging our own. They might, in the performance of what they conceived to be a duty, inform the public that the effect of a proposed amendment, if adopted, would toe to interfere with the rights of the High Court to protect the States, when, as a matter of fact, the electors themselves might be in favour of the amendment proposed. Honorable members know exactly what the people desire, and if an appeal be made to them direct, accompanied bv the explanations which can be offered by those who advocate any particular amendment of our Constitution, no better safeguard could be adopted.
.- I trust that the Attorney-General will consent to a recommittal of this clause.
– I wish the honorable member for Wide Bay to understand that we fully appreciate the criticism which has been offered. In the absence of my colleague,, however, I do not wish to do more than pledge the Government to take the objections which have been urged into their consideration, and if the Minister deems it desirable to do so, or if honorable members wish it, to recommit the clause. I am not asking any honorable member to commit himself in any way whatever.
– Do I understand from the Attorney-General’ that, if no honorable member moves that the clause be recommitted, he will take the responsibility of passing it in its present form?
– No. I wish the Minister of Home Affairs to have time to consider it in the light of the criticism to which, it has been subjected. He mav think that it is desirable to amend it. After he has announced what is his own view, any Honorable member will be at liberty to move that it be recommitted. If the honorable member for Wide Bay wishes to vote against the entire clause-
– It can be re-drafted.
– I am sure that the honorable member has no objection to the first part of the clause. His object would be attained if he were successful in securing the excision of all the words after “ law.
– I propose to move an amendment because I think it is most undesirable that Bills should be piloted’ through the House by Ministers other than those who have charge of them.
– The honorable member knows that my colleague cannot avoid being absent.
– I did not know that, and I am sorry to hear it. Knowing the Attorney-General as I do, I believe that he is strongly in favour of the clause as it stands. I am just as strongly opposed to it. Argument may convince me of my error, but I shall not permit myself to be “ wheedled “ into the position of agreeing to pass the clause upon the understanding that it may be recommitted at the option of the Minister of Home Affairs. This is a most important matter. How are the people to obtain any conception of what we are doing if we do not understand what we are doing ourselves ? It is incumbent upon the Government to show the necessity for this proposal. Too many of these important machinery measures have been permitted to slip through without discussion. I will presently move1 -
That all the words after the word “ law,” first occurring, be left out
.- I think that there is considerable force in the contention of the honorable member for Wide Bay. I am puzzled as to what are to be- the functions of the Justice of the High Court under this clause, and of the points as to which he is to certify. It is quite clear that he cannot give an interpretation of the Constitution. That can only begiven bv him in a case arising between two parties which has been argued before the Court. At. the same time, I agree with the Attorney-General that it is necessary that there should be some kind of statement submitted in connexion with any proposed amendment of the Constitution, and I would suggest to the honorable member for Wide Bay that he should move to strike out the words “ a. Justice of the High Court,” with a view to inserting in lien thereof the words “ the Attorney-General”” or “ the Clerk of the Parliaments.” Certainly, I would exclude the interference of a Justice of the High Court in a matter an which he has no functions to discharge, and in which he possesses no jurisdiction.
– I have no desire to embarrass the Government in this matter. At the same time, I hold that those who are opposed to this clause should be afforded an opportunity of clearly, expressing their dissent from it. I accent the suggestion of the honorable and learned member for Bendigo, and will move -
That the words “ a Justice of the High, Court,” be left out, with a view to insert in lieu, thereof the words “ the Attorney-General.”
– The only desire of the Government is that an unprejudiced and unbiased statement shall be placed before the people, so that they mav know what thev are asked to do. An amendment of the Constitution is a very serious matter. I repeat that - 1 fully appreciate the difficulties that have been mentioned with regard to the proposal that a certificate shall be issued by a Justice of the High Court, but, at the same time, honorable members should understand that if the amendment be accepted the work will be intrusted to a member of the Government of the day. I believe that the Attorney-General, whoever he may be, will always do his best to put before the public a fair view of the position, but honorable members must not forget that he would have political views-
– Does the honorable member think that he would try to conceal any fact ?
– I do not think so; I should say that he would have a full appreciation of his position. An AttorneyGeneral, speaking on the platform in respect to some political proposition, occupies a position very different from that which he holds when he is giving a legal opinion. I believe that the AttorneyGeneral would do his beat, and would succeed in putting the position fairly before the people; but, at the same time, if the amendment were carried, we should have to take the risk of having his political views - and even his legal opinion might be wrong - placed before the people. In that way the people might be misled. I still desire that the Government should have time to further consider this clause.
– Assuming that a Justice gave a certain decision on one of these questions, and the Attorney-General of the day held a different view, would it not be the duty of the latter to make known the difference of opinion?
– That may be ; but to save time, I desire that the Government should have a further opportunity to consider this matter.
– If the Minister wishes to postpone the clause, I will withdraw my amendment.
– I am prepared, if the clause is passed as it stands, to recommit it at the request of any honorable member.
.- I think that the Attorney-General will recognise that, having in view the friendly attitude of honorable members on all sides towards this Bill, the best course for him to pursue is to postpone the consideration of this clause. I am anxious that the Bill be dealt with as soon as possible. This is the only contentious clause which it contains, and as there is some difficulty with regard to it, the most straightforward course to pursue is to postpone its consideration.
– I have offered what is equivalent to a postponement.
– I am sure that the AttorneyGeneral would not throw away anything if he agreed to postpone the clause.
.- I am not satisfied that the amendment proposed by the honorable member for Wide Bay is a wise one.
– Suppose that we omit the words “ Justices of the High Court,” and, for the present, leave a blank.
– For the reasons given by the Attorney-General, I think it would be better to allow these matters to be dealt with by a. Justice of the High Court thanby the Attorney-General. The Minister has pointed out that the AttorneyGeneral is, after all a politician, and necessarily has certain political leanings which must, more or less, colour his views. He might be unconsciously biased.
– If he gave a misleading certificate, the other side would take action, and the people would be left to determine the matter for themselves.
– I think that we should, as far as possible, remove the decision of these matters from the sphere of party politics. The clause ought either to be postponed or the Committee should accept the undertaking of the Attorney - General that if it be passed as it stands, he will consent to its recommittal.
– I do not know whether it is in the nature of all Governments to suspect “ the candid friend,” but if the AttorneyGeneral would accept the advice of his candid friends and postpone this clause, the Bill would soon be dealt with. If the honorable and learned gentleman had a little more of the suaviter in modo, and a little less of the fortiter in re, we should make more headway. I have from the first agreed with the honorable member for Wide Bay that the clause as it stands is objectionable; but if his amendment were agreed to I am afraid” that we should be placed in an even worse position. I should be quite content to allow the work provided for in this clause to be a purely executive act. If the Executive of the day issued a grossly misleading statement with respect to a proposed amendment of the Constitution, there would not be wanting hundreds of hostile critics who would expose them, and they would have to pay the penalty. We should not have the same scrutiny of a statement issued by a Justice of the High Court, who might express an ex cathedra opinion which on hearing argument, he might be disposed to reverse. I recognise that the Government wish to do the right thing, but it seems to me that we are trying to do more than is possible. We could tell the people what an amendment of the Constitution was, but in many cases, it would be almost impossible to show what the probable effect would be. There have been various amendments of written Constitutions - in the United States and elsewhere - the effect of which has been quite different from that suggested by both their supporters and opponents.
– And which the Full Bench of the Supreme Court at that time could not foresee.
– Then how could we expect a Justice of the High Court to be able to certify to the effect of a proposed amendment of the Constitution ? The Government are proposing that the Judiciary shall discharge a function which the Constitution never contemplated - that it shall do something which five out of six Justices would refuse to do. The Minister ought to postpone the clause. This is a non-party measure. Every one desires that the utmost facility shall be afforded for amending the Constitution with the least possible misunderstanding; but several honorable members think that the proposal of the Government may not only land us in trouble, but place us in a ludicrous position. I am not at all clear as to what would be the result of placing this work in the hands, of the AttorneyGeneral of the day.
– I am not strong upon that point.
– I repeat that it would be better to make the certificate an executive act. The Government of the day would then be responsible. On the other hand, a Justice of the High Court would think nothing, on hearing argument, of reversing his opinion. If one of the members of the High Court Bench issued a statement as to the probable effect of a proposed amendment of the Constitution, there would possibly be little hostile criticism of it, but on the other hand, if a misleading, opinion were given by the Executive, it would be subjected to the criticism ofthousands. The Minister would do well to postpone this clause until to-morrow, when after consulting his colleagues he would doubtless be able to bring forward a satisfactory amendment.
Mr. McCOLL (Echuca) [8.29. - I fail to see why such strenuous opposition should be shown to this clause. In submitting any proposed amendment of the Constitu tion to the people, we need to have the most reliable certificate possible as to what its probable effect will be. Surely the people are entitled to the very fullest information with regard to these very important questions. If the effect of a proposed amendment of the Constitution is certified to by a Justice of the High Court, the whole . matter will be placed entirely beyond the reach of party considerations, and. the people will feel safer than they would if the certificate were issued bysome political officer of the day.
.- There is a good deal of force in the arguments adduced against the clause as it stands. There could be no amendment of the Constitution more important than the Constitution itself, and yet it was adopted in the absence of any Justice of the High Court to certify as to the exact effect of any of its provisions. Now that the structure has been erected, and all that is needed is to build an additional storey, or to repair a leak in the’ roof, it is proposed to bring, into requisition the elaborate machinery necessary for obtaining an opinion from a Justice of the High Court as to the effect of the proposed alteration. I think that as the people were able to frame a Constitution, notwithstanding its imperfections, without assistance of this kind, they may be allowed to- judge for themselves of the effect of proposed alterations. If it is necessary that some authority should declare their effect,-why should not that declaration be made by Parliament? A proposed alteration would be brought forward by the Ministry of the day, criticised by the Opposition and members generally, and after agreement by Parliament presented to the public, so that its full effect, would be thoroughly understood. This declaration by Parliament in its favour seems to me to be of ‘more importance than the obtaining of an opinion from a Justice of the High Court as to the effect of the proposed alteration. If the Ministry intend to adhere to the provision, why should” it not be amended so as to require an authoritative decision from the High Court as to the effect of the proposed amendment?
– It might not be ready in time for the election.
– Then the election could wait. The country would not have suffered if it had to wait longer for some of our legislation.
– Could the High Court give a decision before a case had arisen ?
– I think so.
– It is not the practice to do so.
– We are initiating newpractices every day. The honorable and learned member, no doubt, venerates all the usages of the profession to which he belongs ; but I apprehend that if Parliament decided upon this arrangement the High Court would fall in with it, and would give authoritative decisions without counsel appearing before it. If the Ministry are not prepared to alter the clause so that a decision shall be given by the High Court, instead of by a single Justice, I think that we should provide that proposed alterations of the Constitution should be interpreted by Parliament itself.
– Why does the honorable member wish to supplant Parliament ?
– If I had to choose one of two alternatives, I should say, “ Let Parliament interpret for the people the proposed alterations which are to be referred to them,” and, if an amendment is moved in that direction, I shall support it.
– The honorable member for Coolgardie suggests ‘ that the decision provided for in the clause should be pronounced by the High Court rather than by a Justice of the Court, and he stated that, when asked to vote on the draft Constitution, the people had no information as to its probable effect. I would point out, however, that very valuable information was imparted to them by a pamphlet issued by the honorable and learned member for Bendigo, and by another pamphlet issuedby Mr. Garran, who now is the Secretary to the Attorney-General’s Department. The Minister is proposing an improvement on what was done then, and has provided in the clause that a Justice of the High Court shall tell the people what the effect of a proposed alteration of the Constitution would be. I see no objection to the adoption of the suggestion of the honorable member for Coolgardie that the decision should be obtained from the High Court instead of from a Justice of the High Court. There is an objection to accepting the interpretation of the Attorney-General, because, while that interpretation, as the work of a lawyer, may be very clear and reliable, it may be given a party colour by the fact that it is the interpretation of a politician.
There are lawyers in this Chamber who hold quite different opinions from those of the present Attorney-General in regard to various constitutional points, and while no doubt the Attorney-General of the day would act conscientiously, there would always be a danger of political influence. there can be no objection to asking the High Court, or a Justice of the High Court, to tell the people what the effect of a proposed alteration of , the Constitution would be. The decision so obtained would be sent to the Governors of the States, and transmitted by them to the returning officers, to be published for the information of the electors. I do not think that, in a matter ‘of this kind, the advice of laymen would be very Valuable. What,’ for instance, would be the value of my opinion as a legal interpretation of a proposed amendment of the Constitution ? In a matter of this kind, Parliament would, no doubt, be influenced largely by the opinion put before it by the Attorney-General of the day.
– As Parliament is capable of making laws, why should it not be capable of saying what they mean ?
– Legislators are not lawyers. We require men learned in the law to interpret our Acts. It not infrequently happens that, after an Act has been passed, a Court decides that the effect of its provisions is quite contrary to what was intended. Legislators are not necessarily lawyers, and, in my opinion, lawyers are the worst legislators. What the people need here is common-sense, interpreted by laymen. What is equity but commonsense?
– The honorable member cannot have had a suit in equity.
– Yes, I have had. When I gave my opinion on a certain matter, my counsel, who was one of the leading counsel in New South Wales, said, “ That is a layman’s opinion ; it is common-sense, and equity is commonsense ‘ ‘ ; while the learned Judge took the same view. I think that the AttorneyGeneral has been badly treated. He has asked the Committee to pass the clause, promising to recommit it if, later on, any one desires a recommittal. But his friends and supporters say, “ No. We intend to humiliate you. You must withdraw the clause, or we shall amend it now.” The effect of withdrawing the clause would be practically the same as that of passing it with the promise to recommit. What the Attorney-General wishes to do is to consult his colleague, with a view to making a recommendation. He is acting fairly and reasonably, and, although I am a member of the Opposition, I shall support him. If I were he, I would not tolerate the attitude which has been assumed by members on the Ministerial side of the Chamber.
– The discussion shows that either the clause should be amended by leaving out all the words after the words “proposed law,” or it should remain as it stands. Any statement to the electors as to the effect of a proposed alteration must, to be of value, proceed from ‘some authority other than the Government or Parliament. It has been suggested that the Attorney-General of the day should put before the people a statement of the effect of the proposals to be submitted to them by referendum. But a grave objection to that course is that he would probably be the author of the proposed, alteration. He must be a partizan, and would probably have formed an opinion before the alteration was submitted to Parliament. Is it likely that he could do otherwise than express that opinion again when he came to prepare a statement for the information of the electors ? . ‘
– The Attorney-General is, in legal matters, entirely free from Government control.
– I am speaking of the Attorney-General as a member of the Government. His statement would be practically the Government pronouncement as to the effect of a proposed alteration. I admit that the arrangement provided for in the clause looks like an attempt to secure from the High Court beforehand ,an opinion in regard to matters which may subsequently be submitted to it. It is, however, better to obtain the opinion of the High Court than merely to submit a proposed alteration without any statement, or with a partizan statement, of its effect. We should secure the opinion from the highest judicial authority - a Justice of the High Court or, what would be better, the High Court itself. With regard to the statements made by the honorable member for South Sydney as to the effect of alterations made in the Constitution of the United States of America, I would point out that we have already profited by the mistakes made in that country. We have a much better ‘Constitution than that originally framed in the United States> and any amendments that may be proposed will not be so much in the direction of altering the spirit of the Constitution as of rendering it more workable. I would suggest that the Attorney-General has made a very fair offer, which, in the absence of the Minister of Home Affairs, might reasonably be accepted.
.- The honorable member for Laanecoorie has no doubt reasoned admirably from his point of view. I would point out, however, that no question relating to the alteration of the Constitution could possibly be presented except in a party spirit. The matter would no doubt be fully explained to the electors before being introduced into Parliament. Then it would toe debated by the most talented representatives of all parties, and the purpose of the amendment would be made abundantly clear. I differ altogether from the view taken by the honorable member with reference to the position of the Attorney-General when he is called upon to advise the Government upon purely legal questions. Upon mere matters of law, the Government must accept the opinion of the Attorney-General. Otherwise he could not be regarded as ‘fit to occupy that office.
– The Government would not propose an alteration of the Constitution with which the Attorney-General did not agree.
– The Attorney-General might or might not be in thorough accord with the views of his colleagues upon matters of public policy, but his view as the chief legal adviser of the Crown must be accepted upon matters of pure law. A Justice of the High Court is no more likely to give a sound opinion than is the AttorneyGeneral. The Justice, however, would be placed at a great disadvantage as compared with the Minister, because the AttorneyGeneral would be able to take the public platform and defend his view against that of the best and ablest men upon the other side. If a Justice of the High Court were to give an opinion with regard to some matter which was referred to the people, and it was afterwards considered that he had made a mistake, public discussion would take place, and the High Court Bench would at once be dragged into the political arena, in spite of everything that might be done to prevent such an undesirable state of affairs. After all, the opinion of a Justice of the High Court would be of no more value than that of the Secretary of the AttorneyGeneral’s Department. Is it to be supposed for one moment that a proposal for an amendment of the Constitution would be sent forward without any comment for the opinion of a Justice of the High Court ? Certainly not. The Justice would be brought into close touch with the AttorneyGeneral, and would receive the fullest assistance from the officers under that Minister. No Justice would take it upon himself to make himself acquainted with the whole of the details of the case without some assistance.
– Itwouldnot be his business to do that.
– He would have to set out not only the text of the proposed law. but also the material parts of the Consti tution asthey would be affected if the proposed law were passed. The AttorneyGeneral would of necessity have to communicate with the Justice.
– The whole matter would be put before the Justice by the AttorneyGeneral. : Mr. FISHER.- Yes, and political opinion would come in between the Justice and the Attorney-General.
– Not at all. The AttorneyGeneral would merely state a case, and the Justice would give his opinion.
– Does the honorable member for Laanecoorie wish us to believe that the Attorney-General is a partisan when he gives an opinion in the full light of day, and that he is merely a judicial officer when he is behind the scenes? Why do we have open Law Courts ? In order that justice may be administered in the light of day. I do not suggest that any high official of the State would prostitute his position, but certain methods have led to safety, and we should be wise to continue to adopt them. The AttorneyGeneral would be no less a political partisan when he was discussing the matter with the Justice, than he would be at any other time.
– Why should the AttorneyGeneral discuss the matter with the Justice ?
– Because that would be inevitable. The Attorney-General would at least have to submit a statement to the Justice. It is not to be supposed that the Bill would be forwarded to the Justice’ with a mere statement, “ Here is a Bill ; how does it affect the Constitution”?
– Yes, it is.
– Nothing of the kind. Apart altogether from that question, let honorable members reflect that we might be placed in a very humiliating position if the Justice said that he found nothing in the Judicature Act that called upon him to perform the duties imposed by the Bill, and refused to furnish a certificate. I am entirely opposed to the High Court being interposed in any way between the Parliament and the people. The mere form of the amendment is nothing to me. My view is that it is not for the Justices of the High Court to express any opinion as to what we are doing or leaving undone. It is enough for them to give their decision afterwards as to the constitutionality or otherwise of the statutes that we pass. If the electors require that our powers shall be extended it will be our business to carry out their wishes, irrespective of any reference to the Justices of the High Court. I admit that in the absence of the Minister of Home Affairs the position of the Attorney-General is somewhat embarrassing, but that is not our fault. I understand that the Attorney-General has distinctly promised that he will agree to the recommittal of the clause, and under the circumstances I do not feel disposed to raise any difficulty. At the same time, I think that the clause should be withdrawn.
.- As a layman, I cannot see the necessity for enlisting the services of a Justice of the High Court in connexion with a referendum. It would appear from, the wording of the clause that it is intended to call upon a Justice to act as a draftsman for us, and it seems to me that that work might well be performed by the Government. We might with safety allow any matter to be referred to the people after it had been discussed by Parliament. No additional security would be afforded under the arrangement proposed. Any subsequent decision would not be in the slightest degree influenced by the opinion of a Justice or of the High Court itself as embodied in the certificate accompanying the writ of reference. It is not their function to decide matters for us beforehand.
– The clause provides that they shall offer an interpretation of a “ proposed law.”
– But I do not see that any value would attach to such an interpretation. The better plan would be for the Government to present a statement to Parliament, to have it openly debated and finally submitted to the people. Then if any dispute arose, the Court, in the exercise of its ordinary functions,, would decide what was right. Let us suppose that a Justice of the High Court framed, for presentation to the electors, a statement concerning a proposed amendment of the Constitution with which the AttorneyGeneral of the day did not agree. Under such circumstances, a great difficulty would arise. In my opinion it would be better for us to adhere to the principles of responsible government.
– The honorable member means that the statement prepared should be approvedby Parliament?
– That only means by a majority of honorable members.
– We should undertake this work ourselves and accept responsibility for our action. If a Justice of the High Court prepared a statement regarding the effect of a proposed alteration of our Constitution, if assented to,, and Parliament did not agree with his presentation of the case, it would have no power to alter it.
– The statement would not then be submitted to the people. It is submitted to themby the GovernorGeneral.
– My point is that, under the clause, a Justice of the High Court would have to frame it. The GovernorGeneral would merely be the medium through whom it would be submitted to the people.
– But if a Justice of the High Court drafted a wrong presentation of any case, the Government would not submit it to the people.
– Does the honorable member seriously suggest that the GovernorGeneral is to assume the role of a dictator ?
– The word “ GovernorGeneral “ is used in the clause, and it means the Government of the day.
– But a Justice of the High Court would have certain functions to perform. I think that the honorable member must have in mind the “ Governor in Council.” But, assuming that anybody had the power to review the form in which a case was presented by a Justice of the High Court, what sort of position would arise ?
– The honorable member suggested that the Attorney-General of the day might present a different statement to the people.
– I made no such suggestion. I stated that the Government of the day ought to present a statement to Parliament for its approval, and that it should then be submitted to the electors. I also stated that a very awkward position would arise if a Justice of the High Court were to prepare a statement regarding a proposed amendment of the Constitution with which the Attorney-General of the day did not agree. I think that it would be better if Parliament accepts the responsibility which properly attaches to it. In my opinion it is just as easy to secure finality in that way.
.- An hour ago I urged a plea upon behalf of responsible government which the honorable member for Darling has just indorsed. I am satisfied that the view which I then presented is the correct one. I suggest to the honorable member for Wide Bay, who has evinced an extraordinary interest in this clause, that he should move to strike out all the words after “ law “ where it first occurs. I hold in my hand the original draft of our Constitution, which consisted of 128 clauses. It was put before the electors of Australia, but can it be urged that any considerable number of them - apart from close students of constitutional law - perused its different provisions? Certainly not. The honorable member! for Robertson suggested that the text of a proposed law involving an amendment of the Constitution might be posted in conspicuous places so that the electors might be seized of its effect. We might just as well paste it in our hats. Is it reasonable to believe that the public of Australia would look into the crown of their hats for the purpose of reading what a Justice of the High Court had said in regard to a proposed amendment of the Constitution? If what is required is merely a synopsis of any amendment proposed, why cannot it be prepared by the Clerk of the Parliaments, or by the Parliamentary Draftsman? I certainly think that if the clause be passed in its present form we shall be superseding Parliament in a way that we ought not to do. Any proposal to amend the Constitution will have to be fought out in this Chamber, and if it is of serious import, close attention will be given to it. There will be debates upon it, and the press will take good care to insure that the rights of the people are not infringed. I maintain that we ought to shoulder our responsibilities in this connexion.
– Would the public understand a statement framed by a Justice of the High Court any better than they would understand a statement prepared by ourselves ?
– Exactly. I am glad that the honorable member for- Darling has taken up the position of a strong advocate of the principles of responsible government. If there be any legal difficulty in the way of giving effect to the proposal of the honorable member for Wide Bay, the AttorneyGeneral should have pointed it out. He has not done so. He has not shown that, under its operation, the rights of the public are likely to be invaded. In my judgment, nothing is to be gained by a consultation between the Attorney-General and the Minister of Home Affairs.
Amendment, by leave, withdrawn.
– It is only just to the honorable member for Wide Bay to say that I will undertake - in the event of the clause being passed in its present form - to recommit it.
– I have no desire to labour this question, and I do not wish to put the Committee in an awkward position. If the Attorney-General will not agree to give effect to the wish of the honorable member for Wide Bay, I will move to-morrow that all the words after “proposed law” be left out. If the Constitution is to be amended as frequently as some honorable members suggest, and the people are to be expected to carefully look into the details of proposed amendments, the Federation, instead of being regarded as a blessing, will be considered a curse. The people desire to have some time to earn a living for themselves, and do not think Parliament should expect them to inquire into all these details. The Constitution was not considered line by line by the people. They looked at its general effect, and were satisfied. The position will be the same in regard to any amendment of the Constitution, and the people in casting their votes will be largely influenced bv . party views and press criticism. 1 do not believe in the intervention of a Justice of the High Court in these matters, which ought really to be left to public agitation.
– I am glad that the AttorneyGeneral has taken a reasonable view of this matter.
– I offered two hours ago to agree to the clause being recommitted if it were passed in its present form.
– The proposal that we should formally approve of the clause is not satisfactory.
– lt is much better that the Committee should decide the matter after they and the Government have had full time to consider it.
– I think that the clause ought to be reconsidered, and that the statement for which it provides should not be issued, , either by a Justice of the High Court, or even by the Government of the day. The certificate should issue from the Clerk of the Parliaments. He alone should certify that the proposed law has been passed by this Legislature, and represents the matured consideration of both Houses.
– The intention is that the effect of the proposed alteration of the Constitution shall also be shown in the. certificate issued by the Justice.
– I do not think that anything of the kind ought to be done.
I will undertake to say that the honorable member would have no difficulty in finding three Justices, one or two of whom would set to work to show very easily that the certificate was not correct, and did not represent the law. . Moreover, in spite of any statement by a Justice, we should be bound to interpret the proposed law for ourselves, and to show what its political bearing would be. Therefore, nothing would be gained from the point of view of public utility - on the contrary, something would be lost- if we began to project the Justices of the High Court into our political quarrels. That is the very last thing we ought to do. I do not think that a Justice is necessarilv the best judge of the political bearing of any question that goes before the people, and which we have to determine for ourselves, according to our party and political views.
– Then the honorable member suggests that a proposed alteration of the Constitution should go before the people, just as the Constitution itself went before them.
– Exactly; and probably the honorable member would be heard expressing one view in regardto it, whilst I gave utterance to another.
– It would be well to postpone the further consideration of this clause. I certainly do not agree with the amendment suggested by the honorable member for Dalley. It goes too far. To my mind, it is not sufficient that the Governor-General may cause to be attached to the writ a copy of the proposed law. That copy should be certified to be correct, and I should leave with the Government of the day the responsibility of issuing the certificate.
– I wish to show the honorable member how foolish it would be to leave a matter of this kind to the Government. Is he not aware that only the other day both the Prime Minister and the Minister of Trade and Customs assured me most solemnly that when the preferential trade agreement with New Zealand was being drafted they fought for a day to secure a remission of the duty on oranges. As a matter of fact, they did not know that there is no duty on oranges.
– And the honorable member did not know that they were free until he spoke to his constituents about the matter.
– Quite so; and when I sought for information from the Government, the Prime Minister and the Minister of Trade and Customs told me that they had battled for a whole day to secure the remission of the duty. It was left to some of the fruit-growers in my constituency to tell me that there is no duty on oranges. If the Government knew so little about a matter of that kind, how could we trust them to certify to the matters dealt with in this clause?
– Because their certificates would come under the review of the House ?
– No. After the proposed law had been passed, the GovernorGeneral would take action, and this certification would not. come before the House. I do not think that the Government should have this responsibility intrusted to them. It would involve too great a temptation, especially when the matter was one with which some political feeling was associated. It would be quite as inappropriate for the Government to certify as it would be for a Justice to do so. We have in the Clerk of the Parliaments an authority who has to do only with the continuing duties of the Parliament as such. He stands outside party considerations, and is as willing to Help one side as the other, without any party bias or suspicion of such a tiling. I think, however, that we might allow the clause to be formally passed, on the understanding that the Government undertake to recommit it.
– Hear, hear.
– Any recommittal that may be necessary to effect consequential amendment will be made?
– Should there be any alteration in the clause requiring consequential amendments in other clauses, those clauses will also be recommitted.
Clause agreed to.
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
Clause 10 agreed to.
Clause 11 (Voting on same day throughout Australia).
– Does the Attorney-General, consider that this clause is necessary - that it is necessary to enact that the vote shall be taken on the same day throughout Australia? Is not that question governed by the Electoral Act?
– No. That Act relates to the election of members.
– I understood that the Electoral Act was to apply to this Bill.
– There is no general statement in the . Hill that it shall apply.
Mr.JOSEPH COOK.- But I think ‘’ if we had a general reference to the Electoral Act, on the lines adopted in clause 4, the whole matter would be much simplified.
– I quite agree with the honorable member for Parramatta that it is desirable to make the Bill as simple as possible; but it is better still that we should be sure of its effect. So far as possible we have incorporated by general reference the provisions of the Electoral Act, but where we were not sure that that course could be safely adopted, we made a specific reference, which, I think, is after all the best thing to do.
Clause agreed to.
Clause 12 agreed to.
Clause 13 (one vote only).
– Will a person who votes more than once, or votes fraudulently, be liable to a penalty ? I do not see the connexion between the clauses of the Bill and the penal provisions of the Electoral Act.
– Clause 4, sub-clause1, provides for the application of the provisions of the Electoral Act relating to the punishment of electoral offences.
Clause agreed to.
Clauses 14 to 18 agreed to.
Clause 19 (Action at scrutiny).
– Are the provisions of the clause a replica of the machinery of the Electoral Act, or are they entirely different ? To my mind, the two sets of machinery should be as nearly alike as possible. If the taking of a referendum is to be done on the same day as the election of members of Parliament, anddifferent machinery is used for the ascertainment of the results of the two ballots, there will be as much confusion on the part of those conducting operations as there would be if two systems of balloting were provided for the election of Members of the House of Representatives and of members of the Senate. One of the strongest reasons urged against the Preferential Ballot Bill was that it applied one system of voting to the election of Members of the House of Representatives, and another to the election of senators, which, it was said, would create confusion. But the confusion arising because of the difference there referred to would be as nothing compared with that which would result If the system of counting and scrutinizing the votes taken during a referendum were different from the system adopted in connexion with the election of members. I suggest that the Government should simplify thismachinery as much as possible, and make it as nearly as it can be made the same as that adopted in connexion with the election of Members of Parliament. There may be a reason for. the elaboration of the present electoral machinery, and, if so, I should like to know what it is. We should not depart from our present ‘procedure unless we cannot avoid doing so. It must be remembered thatthe average presiding officer, poll clerk, or scrutineer, is not more nor less intelligent than the average voter, and if two systems of voting would be likely to confuse the average voter, so two systems of scrutineering and counting would be likely to confuse the average official.
.- The Bill provides for the taking of a referendum at any time, not merely on the occasion of a general election. Clause 4 enacts that the provisions of the Electoral Act shall, as far as practicable, apply to the taking of a referendum, but under clause5, a writ for a referendum may be issued at any time, and under clause 11 the voting must take place on the day appointed by the writ. There may be urgent reasons for taking a referendumon some other occasion than a general election.
– Under the Constitution a proposed alteration must be submitted not more than six months after it has been passed by Parliament ; so that it may not be possible to wait until a general election.
– There are several strong reasons why latitude should be allowed. It might be very inconvenient if a referendum could be held only on the occasion of a general election. A national emergency might demand an immediateappeal to the people. The Bill has been drawn with a view to that possibility, and the elaboration of the machinery clauses has been necessary to carry that intention into effect.
– It will be desirable, where practicable, to save expense and trouble by making a referendum and an election coincident, but section 128 of the Constitution provides that proposed laws for the alteration of the Constitution - must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State to the electors qualified to vote for the election of members of the House of Representatives.
As the honorable and learned member for Bendigo has pointed out, a sudden emergency might demand an immediate appeal to the people, and if the referendum could not be taken except during an election, the House of Representatives would have to be dissolved. There would be no saving of expense in an arrangement of that kind. We are compelled by the Constitution tomake the measure elastic in regard to the time at which a referendum may be taken..
– There is a great deal in what the honorable member for Parramatta has said, that if the machinery provided for thetaking of a referendum is similar to that provided under the Electoral Act, it will be easy to submit a proposed alteration of the
Constitution to the people on the occasion of an election, but if two sets of machinery are provided confusion will arise. The machinery in both cases should be similar.
– It is similar; but we cannot adopt the machinery of the Electoral Act en bloc. For instance, it would be absurd to provide for the appointment of scrutineersby candidates.
– The statements of the AttorneyGeneral and the honorable and learned member for Bendigo do not touch the point which I raised. If the two sets of machinery provided are made practically the same, or if the same kind of machinery is used for both purposes, a referendum can be taken either during an election or at any other time. In 99 cases out of 100 Parliament will take care that the referendum is taken during an election, because to take it at any other time would cost at least£50,000; but the fact that a contingency might arise requiring the submission of a question to the people while Parliament was sitting does not affect the point which I raised in regard to the character of the machinery used. I can well imagine a degree of political feeling upon a question affecting State rights which would make the scrutiny of votes as necessary as it is in regard to the election of Members of Parliament. If political feeling ran high, scrutineers would be crammed into every booth, and what would apply to the scrutiny of votes in the case of an ordinary election would apply with tenfold greater force if a national question of the greatest importance was being decided. Therefore, it seems to me that the more nearly we can adhere to our ordinary electoral machinery the better it will be for all concerned. We shall certainly save expense and avoid confusion.
Clause agreed to.
Clause 20 (Informal ballot-papers).
.- It is almost too late to suggest an alteration of principle, but it strikes me that we are over careful in making provision against the identification of the voter. What is the object of insisting upon full secrecy in regard to a vote upon a question relating to the amendment of the Constitution, in connexion with which the electors will be called upon to discharge a high public duty - a duty which should be exercised with the utmost openness”? The Bill has apparently been drafted upon the assumption that the same secrecy should be observed in this case as in connexion with an ordinary election, and it seems to me to be absurd to provide that a vote shall be informal if, for instance, it bears upon it some mark which might enable any person to identify the voter.
– The vote will not be declared informal unless the ballot-paper bears some mark not authorized by the Act.
– That does not. affect my point. I do not think that the provision is necessary.
Clause agreed to.
Clauses 21 and 22 agreed to.
Clause 23 (Indorsement on writ by Commonwealth electoral officer).
– The wording of this clause seems somewhat peculiar. It is provided that the electoral officer shall indorse on his copy of the writ a statement showing that as regards his States: -
Would it not be better to use the words “ against the proposed law “ ?
– We have adopted the same language in clause 21.
Clause agreed to.
Clauses 24 to 26 agreed to.
Clause 27 (Requisites of petition).
– I am not quite sure what the grounds of objection to a referendum would be. I cannot imagine any ground except that the requisite majority has not been obtained as required by the Constitution. Perhaps the Attorney-General may have something else in his mind in the shape of informalities that may arise within the meaning of the Bill.’ It might be well to prescribe upon what grounds besides that mentioned in the Constitution a referendum could be challenged.
– Section 128 of the Constitution provides that when a proposed law is submitted to the electors, the vote shall be taken in such manner as the Parliament shall prescribe. We are now prescribingthe manner in which the vote shall be taken. If it is not taken in that manner, the law in’ favour of which the vote is given, will not be valid, and we are merely providing a means by which the validity or otherwise of the law may be tested before the High Court.
Clause agreed to.
Clauses 28 to 32 agreed to.
.- I should like to direct attention to the form proposed for the referendum ballot-paper which I think would lead to a number of informal votes. It would be far better to follow the procedure adopted in connexion with the referendum on the draft Constitution. If the word “Yes” and “No,” apart from any squares, were printed on the ballot-paper, and the affirmative voter were required to strike out the word “ No ‘ ‘ and the negative voter were required to delete the word “Yes,” the process would be simple, and no unnecessary confusion would arise.
– We have adopted the plan of putting a cross opposite the name of the candidate for whom ‘ the elector desires to vote.
– As applied to ordinary election contests, that plan may be very good, but in regard to a question upon which the electors are required to say merely “ Yes “ or “ No,” I believe that the old method to which I have referred would be preferable. Honorable members may recollect that there were very few informal votes upon that occasion.
– The form of ballot-paper has been adopted with a view to preserving uniformity in the method of voting. When persons become accustomed to one style of voting, any divergence from that plan will merely tend to confuse them.
.- It seems to me that the ballot-paper set out in form B would prove very confusing. There are three different sets of squares, in two of which sample votes are given. I think it is undesirable to print these examples upon the face of the ballot-papers. There are no such guides for the elector upon the ordinary ballot-paper. If the examples were printed upon the back of the ballotpapers the effect might not be so confusing ; but I doubt whether even that plan would be a good one to follow.
– I think that the honorable member for Wannon has advanced a valid objection. Each of the forms contain two sample sets of squares, and then the voter is invited to place his cross in one of another pair of squares. At first sight I thought that the squares were merely printed in the schedule with a view to indicating how the votes were to be recorded, and not with any idea of having, them reproduced upon the ballot-paper. The two alternative sets of sample squares should certainly be eliminated from the ballot-paper, and if the honorable member for Wannon moves in that direction I shall certainly support him. As the Attorney - General has already indicated, the electors have become accustomed to placing a cross beside the name of the candidate in whose favour they propose to vote. They will be called upon at the next election to use that method of voting for members of both Houses of Parliament, and it is desirable that they should be permitted to follow the same clear course in regard to each of the referenda papers placed in their hands without being called upon to studyany elaborate directions.
– I am quite certain that a large number would notstudy them.
– No; I think that many of them would give up the effort altogether.
– Personally, I quite agree with what has been stated by the honorable and learned member for Wannon and the honorable member for Bland, and I undertake to have the schedule recommitted, when, no doubt, the Minister of Home Affairs will submit alternative forms.
Schedule agreed to.
Bill reported without amendment; report adopted.
Sir John Forrest laid upon the table the following paper: -
Transfers of amounts under the Audit Act approved by the Governor-General in Council, financial year 1905-6, dated 3rd September.
Order of Business : Defence Depart ment : Tenders for the Supply of Harness.
– In moving -
That the House do now adjourn,
I am sure that the deputy leader of the Opposition will recognise that we do not wish to unduly press honorable members upon Tuesday night, and that they will feel under an obligation to give us a helping hand in disposing of the remainder of the business of the session.
– What is the order of business for to-morrow?
– The fust business will be the consideration of the duties proposed upon stripper-harvesters and agricultural implements. After that we shall consider the proposed reciprocal Tariff agreement with New Zealand.
– And after that?
– The proposals of the Government to extend a preference to the goods of the United Kingdom.
.- As a misapprehension seems to have arisen in connexion with one matter, perhaps I had better draw the attention of the Ministry to it. When the Defence estimates were under consideration, a suggestion was made that there had been a combination on the part of manufacturers throughout the States in connexion with certain tenders for the supply of harness. From the information which has been supplied to me, I am in a position to state that that suggestion was made under a complete misapprehension, though, owing to the similarity of the amounts of the various tenders, there seemed to be some justification for it.
– Has the honorable and learned member any information upon the subject ?
– Yes. The similarity between the prices for certain harness contracts was due to the fact that the tenderers were allowed to reconsider their tenders after some had been opened. I am aware that a tender was received from Messrs. Holden and Frost, in South Australia, for the supply of harness to all the States except Victoria and New South Wales, and that their tender was the lowest received. But tenderers in other States were subsequently allowed to reduce their tenders to an equal amount.’
– Just so.
– That is an extraordinary state of affairs. Messrs. Holden and Frost have a reputation throughout the Commonwealth for the excellence of their work, and thev should have obtained the con- tract. But for some reason the other tenderers were permitted to reduce their tenders, and thus produce false evidence of uniformity. In one case, a Queensland tenderer appears to have been afforded an opportunity to reduce his tender to the level of that ot Messrs. Holden and Frost. He was not able to do that, however, and the South Australian firm obtained the contract. But in another case they lost it. The similarity between the prices of the various tenders is due to the action of the Executive Government, and not to any combination on the part of the manufacturers.
– We ought to be fully informed upon this matter.
– Although I have not mentioned the matter publicly, I have been endeavouring to get at the bottom of the tenders for New South Wales ‘ for the last six months, and I am still sceptical of the explanations offered by. the Department upon the evidence before me. I believe that the object of the Government in permitting tenderers to reduce their prices after some tenders had been opened was to permit the tenderers within a particular State to obtain the contract for the supply of harness needed to meet local requirements. It may be the policy of. the Defence Department to give contracts only to the tenderers in the State for which the supplies are wanted. But that is not its policy as declared by the applications which are invited in the Commonwealth Gazelle. I have no desire to go into the documentary evidence before me, but I hope that the Government will, if necessary, produce the original tenders for the supply of harness, and say whether some of the contracts were not granted to men who were permitted to lower their prices after some of the tenders had been opened. This is a most important matter. It was raised by the honorable member for Capricornia, and was Subsequently referred to by the right honorable member for East Sydney. I hope that the Government will explain the whole position to the House.
– I think that it is a most objectionable and pernicious practice for the Government to make use of one firm as against other firms in the way. that has been mentioned by the honorable and learned member for Angas. Even if tenderers were permitted to reduce their prices to the level of the tender of the South Australian firm, we have no guarantee that the quality of the material which they would supply would be equal to that used by Messrs. Holden and Frost. I wish to specially emphasize that point, because the Imperial War Office declared that the material supplied to the South African contingents by the firm in question was the best obtainable in any part of the world.
– In reply to the observations of the honorable and learned member for Angas and the honorable member for Hindmarsh, I undertake that the case to which they have referred shall be inquired into, and that full information in regard to it shall be forthcoming.
Question resolved in the affirmative.
House adjourned at 10.12 p.m.
Cite as: Australia, House of Representatives, Debates, 4 September 1906, viewed 22 October 2017, <http://historichansard.net/hofreps/1906/19060904_reps_2_33/>.