4th Parliament · 3rd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– I wish to ask you a question, Mr. Speaker, and to call your attention to some statements made last evening by the Minister of Home Affairs. If you will permit me, I shall tell you what they were; and ask you a question ‘in regard to them. The Minister is reported to have said that-
He would like to know if Sir John Forrest was in communication with officers of his Department. . It seemed to him, from the questions asked, that members were in communication with his officers, and it was nothing short ofa conspiracy-
He went on to say -
Private and confidential letters have been’ revealed, : -and that- . the whole thing was a filthy job.
In the first place, I wish to say that, neither directly nor indirectly, have I had any communication whatever-
– The right honorable member is doing, more than asking a question.
– It is pertinent to the question I desire to ask that I should say that, neither directly nor indirectly, have I had any communication whatever with any officer of the Department of Home Affairs, or of any other Department. The. Minister’s statement, so far as I am concerned, is absolutely without foundation.
– This is a carefully prepared personal explanation, not a question.
– It . is very necessary in a matter of this kind to be definite and precise. I ask you, Mr. Speaker, whether these vile statements, couched in coarse and vile language-
– Order !
– Is that language parliamentary ?
– Inferring dishonorable conduct on the part of honorable members should not be withdrawn and apologized for, or expunged from the records of the House.
– The right honorable member has made a personal explanation which should cover everything. He has; not asked a question, nor raised a point upon which I can give a ruling. It often happens that, owing to interjections, I can- not hear everything that is said, but if words were used by the Minister which were unseemly or unparliamentary, theright honorable member should have drawn my attention to them at the time. Had he done that, I should have asked the Minister ‘ to withdraw what he said.
– Yesterday, I’ asked -
Is it not a fact that the declared policy of theGovernment, as directed bv the . caucus, is toestablish as many Federal industries as possible- in Federal Territory, and why, then, has the Government decided to erect the woollen millsatGeelong?
– If the honourable member will” place his question in a proper form, omitting from it the intended insolence of the expression. “ as directed by the caucus,” I will reply to it. (Ministerial cheers.)
– Hear, hear ! Supercilious talk !
There was no intended insolence in thequestion.
– Then I withdraw what I” said.
– I wish to inform theHouse as to the basis of the question, toshow that no insolence was intended. The question was based on the fact that the
Senate, some time ago, passed this resolution -
That, in the opinion of the Senate, all Government establishments for the manufacture or supply of goods for the Federal Public Service should, when practicable, be located in the 7’ederal Capital Territory.
That was moved by Senator McDougall, pursuant to notice, and Senator Rae moved -
That the foregoing resolution be conveyed by message to the House of Representatives for its concurrence.
In this Chamber various supporters of the Ministry made strong statements in support of the proposal. On the 8th November, 191 1, the honorable member for Melbourne said -
Why have a National Territory if we are not going to plant there everything pertaining to the central authority ?
The honorable member for Macquarie said-
– Is this a question?
– It is a personal explanation to repel the charge of insolence in connexion with my question. The honorable member for Macquarie said -
I wish to support the protest against putting the Naval College near Sydney. I do so mainly upon general principles, because, where other things are equal, and I think they are fairly equal in this case, all our big Federal institutions should be placed on Federal Territory.
Then the honorable member for South Sydney said -
Like other honorable members who have spoken on this side, I am opposed to erecting any Federal buildings of this character outside of Federal Territory.
In view of the resolution of the Senate and of the statements of Ministerial supporters in this Chamber, I was naturally anxious to know why the policy of the Labour party has been departed from by placing the Federal woollen mills at Geelong instead of in the Federal Territory:
– Having heard the explanation of the honorable member for Illawarra, I withdraw and apologize for my interjection. It would be unlike him to act insolently.
– I ask the Minister representing the Minister of Defence whether it is a fact that a site for the woollen mills was not chosen at the Federal Capital because of the shortage of the water supply there, and, if so, will he tell us the nature of the water supply at Geelong?
– Mr. Smail’s report will be laid on the table this afternoon, and honorable members will be able to read in it statements concerning all the sites visited, and the reason why the Geelong site was chosen in preference to the others.
– Is it a fact that Mr. Smail, the manager of the woollen mills, recommended three sites, namely, Geelong, Warrnambool, and South Melbourne, as reported in the press ; and, if so, what are the specific reasons why Geelong was selected ?
– I am not aware that Mr. Smail recommended those places in the cider named. The whole of his recommendations are set out in full in the report to be laid on the table of the House this afternoon, and the honorable member will be able to see them for himself.
– I should like to know why Hobart was rejected as the place to establish the woollen mills, seeing that Tasmanian woollen goods are superior to any other.
– The expert, Mr. Smail, in his report, mentions the places he visited ; and he says that, after visiting those places, he made inquiries of all classes of people.
– Would the Minister mind mentioning the places visited by Mr. Smail ?
– They are set out in the report, which will be laid on the table in a moment. Mr. Smail in his report says that there are several places where it would be possible to establish a factory, and run it successfully; that the five best places are Geelong, Hobart, Botany Bay, Liverpool, and Melbourne ; and that he is absolutely convinced that Geelong is the most suitable.
– That is, after not having seen some of the best places in Australia !
– I wish to ask if the Minister representing the Minister of Defence in this Chamber will obtain a report from the Government expert, Mr. James Smail, regarding the following matter : - Mr. Smail visited the vicinity of Port McDonnell, took a sample of the water from that district with him, and reported to the district council that the water was not fit for wool scouring. I should like to ascertain what, in Mr. Smail’s opinion, was the matter with the water, seeing that it has been used with great success for scouring wool for fifty years past.
– I am not aware that Mr. Smail made any specific report on the water in the Port McDonnell district ; but I shall submit: the honorable member’s question to the Minister of Defence, and ask him to obtain details.
– I should like to ask the Minister representing the Minister of Defence whether Mr. Smail was asked to report on any site within the Federal Territory, and if not, why not?
– Yes, the expert visited the Federal territory. I am of opinion that’ that was the first place he did visit.
– Has he sent in any. report on it?
– His report deals with the result of his visit there.
– I desire to ask the Minister representing the Minister of Defence whether the Small Arms Factory was established outside the Federal Territory, and if so, what Government was responsible?
– The factory mentioned by the honorable member was established outside Federal Territory by a Government which held office prior to the present Government.
– Is it not a fact that both the Small Arms Factory at Lithgow and the Cordite Factory at Maribyrnong were established before any Federal Territory was in existence?
– The decision to establish those factories in particular places was arrived at some time ago, but I am not aware whether or not it was before the acquisition of the Federal Territory.
Mr. ROBERTS laid upon the table the following paper : -
Woollen factory - Report by Mr. Smail on - sites for. - : Ordered to be printed.
– Has the Prime Minister observed the statements in to-day’s newspapers, that the First Lord of the Admiralty, when delivering his naval speech in the House of Commons last night, made special reference to the “ usual patriotism of New Zealand “ but no similar reference to Australia? Does the Prime Minister think that there is any connexion between that differential criticism and the unsympathetic answer he gave recently to the suggestion that the Australian battleship might be used with that of New Zealand for purposes of Empire defence at a distance from Australia ?
– From what is the honorable member quoting?
– I am quoting from the report of Mr. Churchill’s speech, which appears in both daily papers this morning.
– I do not think the honorable member is quoting correctly.
– I spoke of it as an unsympathetic answer to a suggestion.
– Perhaps I am more privileged than is . the honorable member inasmuch as I read only one newspaper, which does not agree with his quotation. In the newspaper I read, the First Lord of the Admiralty is reported to have said that the Australian policy had been beneficial, seeing that, since we are making provision for our own defence, the Home authorities are enabled- to take their ships and men to places where they are more needed for the defence of the centre of the Empire. I have no desire to depreciate in the slightest degree the statement made by the First Lord of the Admiralty regarding New Zealand ; ‘ but this Government, if they- so desired, could place on record the appreciation by the British Government of the action taken by the Commonwealth in defending this Dominion in the South Seas, and thus enabling the Home authorities to use their forces with effect where most needed.
– I desire to ask the Prime Minister whether he will afford me an opportunity tb-day to move to restore my notice of motion in reference to Ministers’ travelling allowances?
– No; but I shall facilitate the motion on any day on which private members’ business can be taken.
– I beg to give notice that to-morrow I shall move that a Select Committee be appointed to inquire into the engagement of Mr. Chinn to supervise the construction of the Kalgoorlie to Port Augusta Railway.
– Is the Prime Minister aware that Mr. Chinn -wrote a series of articles in the Western Australia newspapers criticizing railway schemes formulated by the right honorable member for Swan? Has that anything to do with the right honorable member’s trouble now ?
– I know nothing beyond the reports that are before the House.
– I wish to make a personal explanation. I was surprised at the question of the honorable member for Bourke, because I never heard until recently of the name of Mr. Chinn., nor have I ever heard that he reported on any railways with which I or any one else was connected.
– I desire to make a personal explanation. In the Age of this morning the following paragraph appears : -
A Political Dodge.
A division that had all the appearance of having been “ readied up “ by the caucus was taken last night on Mr. Bamford’s amendment to the Government’s motion accepting the Queensland redistribution scheme. The scheme prejudicially affects several Labour seats, and for this reason was not popular with the party. But how could it be rejected without giving rise to the suspicion that the Government had taken a purely party view of the question ? That apparently was the problem that troubled the caucus mind. The solution was seen when the House divided. The division came earlier than expected, and there were few Opposition members in the Chamber. The principle of “ solidarity of the Cabinet” necessitated that Ministers should vole for the Government motion. Hut not a single Ministerialist voted with them. The result was that by two votes the -formal motion was defeated, as desired by the caucus, and the scheme go.es back to the commissioners for further report.
That paragraph is characteristic of a certain section of the press, and contains one of those inaccuracies which are continually being aimed at the party which sits on this side of the House. The Prime Minister and other honorable members on this side will bear me,’ out when I say that this matter was never mentioned in caucus. . I was most..careful not to bring the question up in caucus, so that no charge could be levelled from that side of the
House, or from any section of the press, with the suggestion that the matter had been ‘ readied up.” The paragraph contains a deliberate misstatement which should be characterized in stronger terms. The Prime Minister knows perfectly well that I never asked, either him or the Minister of Home Affairs to either approve of the amendment or to reject it. I told the Prime Minister that I was opposed to the proposed division, and that I would fight the question on the floor of the. House, and nowhere else. This I did successfully, expecting that fair play which should distinguish this Chamber, but which is absent from a certain section of it.
– Does the Prime Minister know of any procedure by which « he can inform the Commissioners of Queensland in what direction they are to alter or amend their decision? Are they supposed to read Hansard, and from it glean some general conclusion, or are they merely to consider whether they were right in what they did?
– I presume the safest way for the Government is to proceed in accordance with the Act and to allow the Commissioners to proceed in accordance with the powers they possess.
– If this report does go back to the Commissioners, has the Minister of Home Affairs satisfied himself that there is ample time to . have Queensland subdivided into ten electoral divisions, and the rolls and all the necessary machinery provided before the general election?
– I think the report ought to be back in less than a month. There is very little to do now.
– When the honorable member for Herbert was speaking last night, I understood him to ask the Minister of Home Affairs, if Mr. Oldham had sent in a report with regard to the redistribution of seats for Queensland. I thought at the time that the honorable member meant Mr: Allars. . ,
– So I did, but I did not mention his name. T said that the Commonwealth Electoral Officer for Queensland had sent a report to Mr. Oldham.
– May I now ask the Minister of Home Affairs if Mr. Allars. has sent in a report on the subject?
– The reports that that officer sends are to Mr. Oldham.’ They are private and confidential. ;
– I wish to ask the Minister of Home Affairs if the redistribution scheme for New South Wales will be laid before the House in time for the next election ?
– Yes; it will be presented very shortly now.
– I am ‘sure the Leader of the Opposition will not object if I suggest that, as our time is limited, an effort should be made to reduce the number of questions put to Ministers without notice.
asked the Treasurer,
Upon notice -
– The answers to the honorable member’s questions are -
South Wales Treasury, interest 3 per cent., principal repayable as follows : - £800,000 on 13th June, 1913, £200,000 on 21st June, 1913. £730,000, Queensland Treasury, interest 3-^ per
Cent., principal repayable on 5th March, 1913.
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are -
asked the AttorneyGeneral, upon notice -
With respect to the patent rights applied for by Messrs. Dobson and MacConnell, of Fremantle -
Does he think the period of fourteen days sufficient for patentees residing in Western Australia to file or lodge a notice of opposition to the granting of a patent for a similar device?
Seeing that the Commissioner of Patents has power to allow a month for the above purpose, will he consider the advisability of extending the period fTom fourteen days to thirty days in the case of Western Australia, as it has been found in the case above quoted, that serious hardship resulted through fourteen days being too short to get a reply from that State?
Is he aware that there were no application forms, “ To oppose,” in Western Australia, and that Messrs. Dobson and MacConnell were unable to obtain any of such forms?
– The answers to the honorable member’s questions are -
asked the Minister of External Affairs, upon notice - .
Where are the following officers sta tioned : -
Chief Inspector of Aborigines, Northern Territory. Salary, £350?
– The^answers to the honorable member’s questions are - 1.(a)Head-quarters : Darwin.
James T. Beckett.
asked the Minister of Trade and Customs, upon notice -
Owing to the danger of plague and other diseases prevailing in other parts of the world, and the great number of bubonic rats being found in the East, and the instruction issued to all officers on Australian ports to observe great care on vessels arriving from infected ports during the present year -
– The answers to the honorable member’s questions are -
asked the Minister of Home Affairs, upon notice -
Will he lay on the table of the House a full return showing the prices tendered recently for steel rails, fish-bolts, and nuts, sleepers of different kinds, and wheels and axles, in order that a comparison may be made in the future in the event of the Government undertaking the production of these requirements as a State enterprise ?
– A complete record of the data will be maintained in the Department; and, should a contingency arise such as that indicated by the honorable member, the data will be available for purposes of comparison.
asked the Minister of Home Affairs, upon notice -
Ministerial control, is likely to give satisfaction to those opposed to the Government?
– The answers to the honorable gentleman’s questions are -
Officer to exercise greater powers than those contemplated by the Electoral Act has received my consideration, and also the consideration of my predecessors in office, Messrs. Mahon and Fuller, with whom I am in agreement, that the position of the Chief Electoral Officer is certainly not of sufficient magnitude to justify it being placed outside the scope of governmental responsibility, and independent of the Minister responsible to the people.
asked the Minister of Home Affairs, upon notice -
Whether he will lay upon the Table of the House all correspondence received by the Commonwealth authorities in regard to the Brennan Mono-Rail Patents - also the replies sent thereto ?
– I will lay the papers on the table of the Library for the information of honorable members.
Land Resumptions - Representation in Parliament - Federal Factories : Preference to Federal Territory.
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable members’ questions are -
asked the Prime Minister, upon notice -
Whether it is proposed to take any action this session to enablq residents of the Federal Capital Territory to have some representation in this Parliament?
– The answer to the honorable member’s question is -
The matter is under consideration, and action will be taken if practicable to give representation to the electors in the Territory.
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are - 1.. Yes.
Boulder and Karrakatta Rifle Ranges. - Small Arms Factory, Lithgow. - Victoria Barracks, Sydney. - Supply of Trucks and Rails : German Tender. - Rifle Club Practice : Railway Passes. - Commonwealth Harness and Saddle Factory. - Commonwealth Woollen Mills
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are - 1 and 2. It was intended that the same regulations should govern all rifle clubs, but cases have come to light where a diversity appears t’> exist in their application.
Steps are being taken to insure that every club is given the same privileges and facilities.
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are -
In . 1904, < Captain King, Inspector of Rifle Ranges, - reported that the acquisition of an adequate danger area was necessary to insure safety, and . this view has been indorsed by other officers at various times subsequently.
The range has been in use since 1896. The following casualties have been reported : -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are : -
Correspondence relating thereto will be laid on Library table.
asked the Minister representing the Minister of Defence, upon notice -
Forces in his District could not be overestimated, and (b) desire that every effort be made to oppose the relinquishment of any portion of the area now held ?
– The answers to the honorable member’s questions are: -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are : -
asked the Minister representing the Minister of Defence, upon notice -
Are free passes to attend rifle club practice being issued to Victorian and South Australian Rifle Clubs, and are rifle clubs in all States treated alike in regard to free passes on railways ?
– The answers to the honorable member’s questions are : -
asked the Minister representing the Minister of Defence, upon notice -
Whether he will lay on the table of the House all papers in connexion with the appointment of the manager of the Commonwealth Harness and Saddlery Factory?
– The papers will be laid on the Library table.
asked the- Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are : -
Victoria Park Post Office. - Postal Parcels and Papers : Notices to Addressees. - Wireless Communication: Lord Howe Island. - Boardof Inquiry. Sydney : Departmental Witness. - Tasmanian Mail Service : Common wealth Owned Shipping Service.
asked the Minister of Home Affairs, upon notice -
– The answers to the right honorable gentleman’s questions are - 1 and 2. In 1904 a piece of land was purchased as a site for a post-office at VictoriaPark, Western Australia. The PostmasterGeneral’s Department subsequently reported that the proposed railway to Fremantle intersects the land, and recommended the purchase of another site. Negotiations are now in progress.
asked the PostmasterGeneral, upon notice -
With reference to a question on 17th July as to whether “ the present practice of sending notices to addressees that parcels and papers are waiting to be called for at post-offices cannot be improved on” and to the reply that the notice is only used “ in cases where the number of parcels does not warrant the expense of special delivery “ -
– The answers to the right honorable gentleman’s questions are -
asked the PostmasterGeneral, upon notice -
In connexion with the system of wireless communication for the Commonwealth, will he give instructions that Lord Howe Island shall be included in such communication?
– It is not intended to include Lord Howe Island in the scheme of wireless telegraphy proposed to be carried out this year.
asked the Postmaste.rGeneral, upon notice -
– The answers to the honorable member’s questions are -
asked the Postmaster-General, upon notice -
Whether he will give Tasmanian members an opportunity of discussing with him the proposed alterations in the mail service to and from Tasmania, before the tenders, called for and to close on 12th August next, are accepted?
asked the Postmaster-General, upon notice -
Whether, in view of the fact that it costs the Commonwealth Government £13,000 per year for the carriage of mails to Tasmania, it would not be a wise and profitable undertaking to have a Commonwealth-owned shipping service which, it is alleged, would give better mail facilities, and supply a better and cheaper service for the travelling public?
– This matter is now engaging my attention.
– I move -
That this Bill be now read a second time.
The Royal Commissions Act of 1902 experience has proved ineffective. In proposing its amendment, it will be convenient to first indicate, briefly, the powers of the Crown in relation to Commissions of . Inquiry, to then detail the reasons for the amendment of the present law, and, lastly, explain the provisions of the Bill. The practice of issuing Commissions of Inquiry is very old, and has been frequently re sorted to for centuries past. In England’ there is no general Statute relating to Royal Commissions, but, upon occasion, special Acts have been passed to clothe Commissions with the power to compel attendance and the answering of questions. The right to issue Commissions of Inquiry is not derived from Statute. It is a prerogative off the Crown, but does not carry with it the power to compel attendance and the answering of questions. Therefore it has occasionally happened in England that Commissions of Inquiry issued under the prerogative have been unable to make effectiveinquiries owing to persons declining to attend or to answer questions. The powersof the Commonwealth to issue Commissionsof Inquiry is at present a prerogative power. Our Act does not extend our power to issue Royal Commissions, although section 2 enacts that -
Whenever the Governor-General by letterspatent under the Great Seal of the Commonwealth issues a commission to any persons tomake any inquiry, the President or Chairman of the Commission, or the sole Commissioner, asthe case may be, may by’ writing under his hand’ summon any person to attend the Commission at a time and place named in the summons.
The power conferred by the Statute is not that of issuing Commissions of Inquiry, but” of compelling attendance, and the answering of questions at such inquiries.
There is some conflict of opinion, but practically only two judicial decisions of recent date’ as to the scope of a Commission of .Inquiry. The first. to which I shall direct attention is the Commonwealth case of Ciough v. Leahy. The case is reported in the second volume of the Commonwealth Law Re-ports, page 157 ‘ In his judgment the Chief Justice dealt at considerable length with first principles, and it is to his statement of the law that we have to look for guidance in this matter. Shortly, the Court laid it down that the Crown’s right to inquire is as great, but no greater, than that of any private individual. Subject to the limitation that he must not violate any law, a man may ask any question he pleases. ‘ It may be impertinent or undesirable, but he has the right to ask it. and the same fight is possessed bv the Crown. On this point the Chief Justice said -
We start .then with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic. And it seems impossible, from this point of view, to draw a line beyond which an inquiry will be necessarily unlawful. If the Crown” makes an inquiry into the affairs of private persons, the advisers of the Crown may incur the censure of public opinion. They may also incur the censure of Parliament. >ny and every person is equally free to form an opinion as to the propriety of the inquiry, but it would be a strange thing if Courts of Justice were to assert the right to inquire into the propriety of executive action - whether it was a thing ‘which, according to rules of action commonly received in the civilization in which we live, ought to be done. That is a question which a Court of Justice has no right to inquire into. It is for a Court of Justice to inquire whether the law has been transgressed.
A later New Zealand decision - Cock v. Attorney-General - dissenting in some respects from this view, was based on what I think is a mistaken interpretation of 43 Edward III:, c. 7. It appears that the Crown may issue- Commissions of Inquiry upon any subject : it is not even necessary that the subject shall be one of public interest. Whatever the Crown thinks ought to be inquired into may be inquired into.
– Can a Common.wealth Commission inquire into a subject in regard to which this Parliament has not the right to legislate?
– There is no limit to the right of the Commonwealth authority to inquire. Obviously no one can say what are the limits of our powers in regard to any subject until inquiry has been made with respect to it. The power of this Parliament to pass laws is plenary; we can pass any laws that we like. It is’ for the High Court to determine whether our laws are constitutional, and whether they shall operate. Clearly, our power to inquire must be at least as wide as our power to legislate, which includes the power to exercise our powers under section 126 to amend the Constitution. As to the result of the inquiry, that is quite another matter. I may mention that the case of Ciough v. Leahy was. one in which the- defendant had been summoned to appear before a Royal Commission in New South Wales. He did appear, but he declined to answer questions - indeed, he declined to be sworn - giving a number of reasons, some of which the Chief Justice declared to be fantastical. The counsel for the defendant alleged, among other things, that the Crown had no business to issue a Commission of Inquiry into a matter which was the subject of litigation between two parties. This point was pressed; and the Chief Justice, dealing with it at some length, repudiated the idea that such a limitation could be drawn. Substantially the defence was that the defendant had a reasonable excuse for not doing so, but the Court held that he had no reasonable excuse.
The other case to which reference may be made is Cock v. The AttorneyGeneral, as quoted in the New Zealand Law Reports, vol. 28, page 405. This was an appeal by the defendant to the -High Court for a prohibition and for other relief. A Commission of Inquiry had issued, charging certain members of the Licensing Committee with bribery. The Supreme Court held that, as the acceptance of a bribe was a crime punishable by law, the Governor had no power under his Letters Patent to issue a Commission of Inquiry into the allegations, and, seeing that the real object of the Commission was to inquire into such allegations, the Commission was illegal. In that judgment the Court relied on some words in 43 Edward III., chap. 7, which dissolved the Star Chamber. The words occur in section 3 of that Act, and are as follows : -
Neither His Majesty nor His Privy Council have or ought to have any jurisdiction, power,
Br authority, by English Bill, petition, articles, libel, or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the lands, tenements, hereditaments, goods or chattels of any of the subjects of this Kingdom ; but that the case ought to be tried and determined in the ordinary Courts of Justice, and by the ordinary course of the law.
The Chief Justice of the High Court, referring to these words, disagreed entirely with the view that the Statute had any relevance or bearing on the power of the Crown to issue a Commission of Inquiry, and he drew a very substantial distinction between a Commission of Inquiry and what was, in substance, a Court to try and to punish. The Courts referred to in 43 Edward III., C7 and 16, Carl. 1, C6, as is clear from the recital of the facts, which is to be found in vol. 1 of the revised Statutes of Henry III. to Anne, page 590, had the power, which is exercised freely, to punish by fine and imprisonment. The Star Chamber’s power only stopped short at capita] punishment. Taswell-Langmead’s English Constitutional History, page 149, says -
As a court of “ criminal equity,” it took cognisance of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy ; and generally of ail misdemeanours, especially those of a public nature, among which were included all breaches of Proclamations, without regard to the illegality of the Proclamations themselves. Pine and imprisonment were the usual punishments inflicted ; but the Court was held competent to pronounce any sentence short of death. The fines w’ere frequently of enormous amount, and though, -as a rule, they were reduced or remitted, they in many cases proved ruinous to the sufferers.
The Chief Justice . reviewed the effect of the Statute 43, Edward III.., chap. 3, and, referring to the Commissions and other similar Courts, said -
These , Commissions were, in fact, an attempt to institute new Courts with coercive jurisdiction, which were ‘to hold proceedings in the nature of an inquisition, and the findings of the jurors were to be recorded in the Court of Chancery. What was to be done” with them afterwards does not appear. The’ “learned Judges held that such -an attempt as -that was unlawful, and it is only strange that any .one should have thought it. competent for the ‘ Crown in that day, in the exercise of its prerogative power, to establish a new . Court of that kind and confer upon, it coercive jurisdiction. This authority has clearly no bearing on the general .question whether a Commission to inquire and collect such information as witnesses voluntarily give it is lawful.
The Chief Justice proceeded to state the first principles on which a Commission of Inquiry under common law can be issued, and declared that this power existed, and, that being so, there was no doubt that the Commissioners could be clothed with statutory authority to compel attendance and answers to inquiries. It is then clear that the Crown has the right of inquiry, and that there are practically no limits to the scope of its inquiry. The Statute of Edward LIT. is really a recital of the principles of Magna Charra, and a later Statute, 16 Charles I., chapter 6, is also a recital of Magna Charta and older Acts, and does not apply to Commissions of Inquiry. The Statutes were directed against the Crown, which, at that time, was unchecked by the wholesome restraints now imposed of attempting through the Star Chamber and other Courts to interfere with the proper processes of law. The Statute of Edward III. has no bearing on the question of the power of the Crown to issue Commissions of Inquiry, which is quite clear. And not less is the power to clothe such Commissions with statutory authority.
These being the principles on which the law rests, we have to consider the law itself:. In 1902, a Commonwealth Act was passed relating to the issue of Commissions of Inquiry by the Governor-General ; and here I may say that the words “ GovernorGeneral “ do not mean the “ Governor-General acting on the advice of the Executive,” but,, in my opinion, means the Governor-General exercising a residual prerogative of the Crown. Royal Commissions are issued ira the Commonwealth, not by statutory authority, but by virtue of the prerogative of the Crown. But as under this prerogative power necessarily exists, while the Crown has power to inquire, it has not power to compel the attendances of witnesses; the Act of 1902 gives that power. The Act, as it stands, provides that a witness, being summoned, must attend, and must produce books, documents, and writings when called on to do so. If a witness ‘refuses to attend, or refuses to answer questions”, he is liable to a penalty of ^50 -in any Court of summary jurisdiction. In -the various States of Australia, there are .Statutes not widely dissimilar from this. In New South Wales, there is the Royal Commissions Evidence Act; -in Victoria, the Commissions of Inquiry Act’; in Queensland,, the Official Inquiries Act ; in South Australia, the Witnesses on Coramissions Oaths Act; and, in Western-
Australia, the Royal Commissions Powers Act, all of which substantially clothe Royal Commissions with similar power to compel attendance and the answering of questions.
The law being as I have said, a Commission was issued some time ago to inquire into matters in connexion with the sugar industry. In the course of the inquiry certain witnesses were summoned in Sydney, but did not attend. On one occasion they attended, but declined to answer questions as requested, and claimed the right to practically control the proceedings of the Commission, declaring that they were prepared to answer questions only after they had put in a prepared statement. Subsequently they were summoned to attend, and did not do so. In consequence of this refusal, proceedings were instituted, and the prosecution is now, I think, in its tenth or eleventh week. At any rate, the case is still before a Court of summary jurisdiction - so called, no doubt, because it declines to give any answer during the winter months. The defendant claimed that he had a reasonable excuse for not attending the Court, and counsel for the defendant submitted no less than twenty grounds - some of them of very grave importance - why the witness ought not to be expected to attend before the Commission. These were some of them -
Some fifteen others, of which a number were of quite equal importance to those I have recited, were also argued upon at great length.
The case is now closed, but the decision of the magistrate has not been given. The Bill introduced to-day in no way affects this case. No matter what the decision of the magistrate may be, it will not be affected in any way at all, nor will the position of any person be prejudiced so far as concerns any act done or omitted to be done prior to the passing of ;this Bill.
I have already pointed out that there is no limitation to the power of the Crown to inquire. It may inquire into anything, whether of public interest or not, but I submit that, in the particular case which is the immediate occasion for the introduction of this remedial legislation, the subject-matter of the inquiry is of very great importance to this country. We are spending some ^600,000 a year by way- of subsidy for the sugar industry, and it is certainly of vital importance to the taxpayers to know how the money is spent. The inquiry is into the conditions of the industry, and of those persons who participate in any way in the distribution of the bounty. Surely a matter of first importance to the community. Yet, for nine weeks, the Commission of Inquiry issued by the Crown in this matter of great and vital public interest has been flouted and defied, and the powers of the Commonwealth are found to be utterly futile, either to compel the attendance of a witness, or to make him answer a single question. Such a state of thing? is intolerable. I submit that a great principle is here involved. The community must’ be supreme. No individual, or set of individuals, can be permitted to put themselves above the law. Whether the law is good or bad is, so far as this principle is concerned, not material. Witnesses must attend ; they must answer questions.
The Commission is not to try them ; it is merely to examine them and report to the Crown. The present Act is quite inadequate, either to compel attendance or extract information. A Royal Commission of Inquiry can do no more than inquire and report. Section 5 of the existing Act provides -
If any person served with a summons to attend the Commission, whether the summons is served personally or by being left at his usual place of abode, fails without reasonable excuse to attend the Commission, or to produce any documents, books, or writings in his custody or control, which he was required by the summons to produce, he shall be liable, on summary conviction, to a penalty not exceeding Fifty pounds.
Defendant’s counsel submitted that it was a “reasonable excuse” for non-attendance that the Commission had not treated the defendants fairly, or that it had treated them differently from any other witness. It was also alleged, as another “reasonable excuse,” that, until the Judge had made an apology for remarks made to one of. the; defendants, the witness would not attend.
Such arguments are irrelevant, and the position taken up an impossible one. The Commonwealth, representing the people, proposes to inquire into a matter of vital importance to them, and we are told that, unless the tribunal is quite satisfactory to the witnesses, and conducts itself in such a way as to leave them no ground of complaint, they will not attend ! That is, I say again, an intolerable and impossible state of affairs. We must insist upon the right of inquiry into all matters affecting the welfare of the people. The necessity for inquiry is to-day infinitely greater than it ever was before. Factors formerly unknown have developed, and are growing every day greater and more important, that affect the welfare of the people most vitally. Their manipulation over the means of production and prices, their power and their influence upon the community in other directions, are growing greater, and ought to be inquired into; yet we find that no effective inquiry can be made. We have now entered upon-, I think, the sixth week of this session. Had the Commission been permitted to conclude its labours, us it could have done in a few days had the witnesses attended and given evidence, it would, no doubt, have presented its report to this Parliament by now, and legislation might have been introduced shortly in accordance with that report. The report is an urgent matter. The Commission may say, for example, that the money now expended on the sugar industry is expended in a wrong direction, or that the wrong people are getting it. If that is so, it is a matter of vital imporance to this country, and we should know it at the earliest moment.
Having stated the principles upon which the right of the Crown to issue Commissions of Inquiry rests, and the present law and the state of things which it is desired to remedy, I come now to the legislation which is introduced as a remedy. Clause 3 introduces a provision partly declaratory, and places in statutory form, but without limiting them, some of the powers which the Crown enjoys under its prerogative. The section reads as follows: -
Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorize any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, bv Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.
To what extent that enlarges the powers of the Commonwealth I should not like to say. I am clear it does not limit them, and if any Statute does restrict the prerogative of the Crown the section enacting our prerogative power in statutory form places the matter beyond doubt. It puts in statutory form the “right of the Commonwealth to issue Commissions of Inquiry, and rebuts the presumption that it cannot do so. In so far as any English Statute limits our power, it is by this clause repealed. I come now to the real gist of the measure, which is the creation of the machinery necessary to make the inquiry effective. To this end two things are clearlynecessary : one, to compel the attendance of witnesses; two, to insure that they shall answer questions. We propose, therefore, to amend section 2 of the principal Act by striking out the words “ material to the subject-matter of the inquiry,” and make it compulsory to produce all documents, books, and writings which are mentioned in the summons. The Court is to be the judge of whether they are material to the inquiry or not. In another clause ‘ reasonable excuse ‘ ‘ is defined - and I do not think any one will say that it is not high time it was defined - to mean exactly what it means in a Court of law. There it means such an excuse as physically prevents a person from attending. If a. man on his way to the Court meets with an accident, that is a reasonable excuse for not attending. If a man’s employer says to him, “ If you attend I shall discharge you,” that is not a reasonable excuse. If a man’s wife were ill, that might be held to be a reasonable excuse. If the man were ill himself, it certainly would be. It would, however, not be a reasonable excuse, before a Royal Commission any more than before a Court of law, to say that a witness did not like the Judge, or had an idea that the Judge had treated him or his friends unfairly. Clause 4 amends section 5 of the Act, making the penalty for .non-attendance £590 instead of .£50. A penalty of £50 might be incurred in the case of a great corporation with impunity. A man might say, “ I would rather pay £50 than give information.” It is, therefore; proposed to make the penalty £500.
Clause 6, which deals with the refusal to answer questions,, or to be sworn, increases the penalty for such an offence from .£50 to ^500. Under clause 6a of the Bill we make attendance on the one subpoena obligatory on the part of a witness throughout the proceedings until he is discharged. On receiving a subpoena to attend before a Royal Commission, a witness will thus have to attend on the date named, and to continue in attendance until discharged.
If any witness fails to attend, a warrant may be issued for his apprehension. At ihe present time there is before the Courts a case, the hearing of which has occupied some nine weeks, and no decision has yet been given as to whether or not a witness is bound to attend under the existing Act. Under this Bill, however, if a witness does not attend, it will not be necessary to do anything more than to issue forthwith a warrant for his apprehension. He may then be brought before the Commission. It is provided that a- warrant may be executed by any member of the Police Force, or by any person to whom it is addressed, and that the person executing it shall have power to break and enter any place, building’, or vessel for the purpose of executing it. The apprehension of any witness under this provision will not relieve him from any liability that he may have incurred by reason of his non-compliance with the summons. He will still be liable for the full amount of the penalty, lt is further provided that acts or omissions on different days shall constitute separate offences, that a Commission may inspect any document, books, or writings produced before it; that it may retain rhein for such reasonable period as it thinks fit, and may make copies of or extracts from them.
Under clause 6d it is declared that it shall not be compulsory for any witness before a Royal Commission to disclose any secret process of manufacture. We are not going to compel a man to disclose any secret of trade. That does not mean that he is not to produce his books. It simply means that he is not to disclose any secret process of manufacture that a Court of law would not compel him to disclose. Another provision which I propose to insert in this Bill is that no evidence given by a witness before a Royal Commission shall render him liable in subsequent civil or criminal proceedings. That, I take it, will put a witness before a Royal Commis- sion in exactly the position he would occupy if he were before the Bankruptcy Court. In any case, under section 7 of the present Act he has the same protection that a witness before the High Court enjoys. Provision is made in the Bill for the payment of reasonable expenses, and it is also provided that where any person has been convicted of any offence against section 5 or section 6, and is subsequently convicted of any offence against either of those sections, he shall be liable to a penalty of not less than ,£500 or more than -L I.000. and to imprisonment, for such period not exceeding three months, as the Court thinks fit to order. That is to be the penalty for a second or subsequent offence. The giving of false testimony will make a witness liable to imprisonment for five years, and bribery is 1o be punishable by a like term of imprisonment. Any person who practices any fraud or deceit, or exhibits anyfalse statement, representation, token, or writing to any person called, or to be called as a witness, will be liable to imprisonment for any term not exceeding two years. Provision is also made for the imposition of a similar penalty in the case of any person who destroys books or documents knowing that they may be required in evidence before a Royal Commission, and any person who wilfully prevents the attendance of a witness pursuant to a summons to attend may be. imprisoned for one year. A further, provision in this Bill is that any person who injures, or causes a witness to be injured, because of his having appeared before a Royal Commission shall be liable to a penalty of ^500, or imprisonment for one’ year. An employer who dismisses an employe on account of his having appeared as a witness before a Commission - and the onus of proof is thrown upon the employer - will also be liable to a penalty of ,£500, or imprisonment for one year.
I come now to the provision relating to contempt of a Royal Commission. A Commission which was treated in a most contumelious way in Sydney had no remedy; but under this Bill it is provided that contempt shall be punishable by a fine of ^100, or imprisonment for three months. Where the Chairman of a Royal Commission is a Justice of the High Court or of the Supreme Court of a State, or is a Judge of a District or County Court of any State, he is to have, in addition, the same power to commit for contempt, in the face of the Court, as he has in his own Court. He may deal with the offender exactly as a Judge deals with such offenders in a Court of law.
In regard to legal proceedings it is provided that proceedings in respect of any indictable offence may be commenced by any person in any Court of summary jurisdiction. Proceedings in regard to any offence other than an indictable offence under this Bill may be instituted in the High Court by the Attorney-General, or, by information, or other appropriate proceeding, by any person in any Court of summary jurisdiction. I desire specially to emphasize the point that provision is made for a direct reference to the High Court as well as to a Court of summary jurisdiction. In order to expedite proceedings, it certainly seems necessary to have power to go to some Court other than a Court of summary jurisdiction. I wish to say at this stage that the High Court of Australia is a pattern so far as the despatch of judicial business is concerned. No Court gets through anything like the same volume of work. I give this testimony with the very greatest pleasure, notwithstanding that the High Court has, on occasions, by that very despatch of public business, produced in the minds of those who sit with me some measure of discomfort ; and expedition has not been at the expense of sound law. The decisions of the High Court, as judicial deliverances, stand on a very high level.
Provision is made in this Bill for the enforcement of penalties by distress, and for release by payment of a certain amount of money in lieu of fines. It is further declared that in all legal proceedings the production of a document - purporting to be letters patent . . . and purporting to be signed by the GovernorGeneral, and to be sealed with the seal of the Commonwealth, and purporting to be directed to any person or persons, and to appoint him or them to be a Commissioner or Commissioners to make inquiry into any matter - shall be evidence that the GovernorGeneral has issued the commission. The last clause in the Bill declares that -
The provisions of the Act shall apply in relation to any Royal Commission issued before the commencement of this Act as well as in relation to Royal Commissions issued after its commencement.
That means that existing Royal Commissions will be clothed so far as their future actions are concerned with the powers conferred under this Bill. Their past actions must stand under the original Act. It will thus be seen that this Bill does not in ‘any way affect pending cases, nor the position of any person in regard to any a.ct done or omitted to be done before its passing.
It remains now for me only to summarize my statement of the case. The power of the Crown to issue inquiry is inherent in it, and does not differ from that possessed by ,a private individual. The Crown can inquire into any matter, whether it be of public interest or not, the scope of its inquiry being limited only to the extent that it must not interfere with the course of justice, and that it must not do anything unlawful. Apart from statute law, however, the Crown has no power to compel the attendance of witnesses. It is the custom in this country to have a general statute dealing with Commissions of inquiry, and with the powers conferred by that statute every Commission that is appointed is clothed. But in England that is not the custom. There Commissions of inquiry are sometimes clothed with powers by special statute, but otherwise they have no power to compel the attendance of witnesses. The existing Act of 1902 has proved, not only in the recent inquiry, but in others, unsatisfactory. Our most recent experience shows that it is imperative that there should be an amendment of the law. As time goes on, the right of the Crown to inquire becomes more and more important. The Crown is now inquiring into a subjectmatter that involves the expenditure of very large sums of public money - that concerns a most important industry eminently suited to the requirements and the conditions prevailing in Australia, but which, nevertheless, there is every reason to believe is most unsatisfactory so far as the distribution of the Crown’s money, and the position of the employes in that industry, and of the consumers of its product, are concerned. Yet we have found that, in spite of the Crown desiring this information, notwithstanding that the Legislature is anxiously awaiting the report of the inquiry, the Commission is flouted, and the whole machine of government rendered impotent by the action of certain persons whose interests are involved. I shall say no more on that head than to remark that the inquiry itself sprang from a desire for a Commission expressed by those persons themselves. They asked that a Royal Commission should be appointed, and when it was so appointed they decline to attorn to its jurisdiction. We cannot permit the law to be treated with absolute contempt. The penalties under the existing Act, even if they were imposed, are notoriously ineffective. The proposed penalties are more severe, but they are modelled upon existing legislation. The most severe are taken from the Queensland Act of 1910. The English Statute, 30 Vic, Ch. 8 - a special Statute conferring upon a Royal Commission power to inquire into reported outrages of trade unions - gives to the Commission the powers of a superior Court to enforce the attendance of witnesses, to compel them to answer and to produce documents, and to punish those who are guilty of contempt. Under that Act - fifty years old - a warrant could be issued by the Commission for the apprehension of any person who does not attend. This power of issuing warrants to compel attendance has been conferred on the Public Works Committee of New South Wales for many years. The chairman of that body can issue a warrant for the apprehension of any witness, and can commit to prison for contempt before the Court.
There is nothing in the Bill that is not justified by the circumstances, and for which there is not ample justification. Its most severe penalties, dealing with perjury and fraud, have been taken from the Queensland Act. That the present law must be amended is clear, and the amendments must be effective. Either we must admit our helplessness when confronted with a great corporation, or we must amend the law and make even the most powerful persons in the community realize that the community is still more powerful. As it is a matter of urgency, I hope that the measure will be passed without undue delay. It is obvious that this Legislature should have the report of the Commission at the earliest possible moment.
– It is evident, from the remarks of the AttorneyGeneral, that the Bill has been introduced to deal with a particular case, to settle difficulties that have arisen in the course of an inquiry conducted by a Royal Commission appointed at the instance of this House. I do riot know of any other instance in which legislation has been introduced to deal with a matter pending before a Law Court. In this case, the de cision of the primary magistrate has net ye.t been given.
– It is not likely to be.
– I believe that it will be given this week. Before we have had the judicial pronouncement of the Court of summary jurisdiction, to the effect that a Royal Commission is likely to fail in its object by reason of its powers being defective, a Bill, whose provisions are most drastic and exceptional, is introduced. Is this right or creditable? I know of no other case in which it has been sought to cure possible defects in the law in anticipa-tion of the decision of a case pending before the Courts.
– Did the honorable member ever before hear of a Court being tied up like the Court in Sydney has been ?
– We ought not to prejudice the hearing of the case referred to. It would be better taste to keep clear of that issue. I have my. own opinion as to the method in which the Commission was appointed. If it was not properly appointed, the oversight is one for which the Government is to blame. A point raised in the case pending has been referred to by the Attorney-General, and that is whether, under our Constitution, Commissions must be appointed by the Governor-General in Council. I shall not offer an opinion on the point, because, according to the AttorneyGeneral, it is one on which the decision of the Judiciary has been asked, and as it is contrary to parliamentary decency to legislate in regard to a matter pending before a Court. When the Judiciary has spoken, and defects militating against the public interest have been shown to exist, a proper Bill may be submitted.
– Until the past year or two, Parliament has been slow to act.
– The Attorney-General has told us - his language was that of one who had pre-judged the case - that the Commission has been flouted, defied, and rendered futile, and that it has been unable in one case to obtain an answer to a single question. Whether that is an argument for the passing of the Bill is a matter for the good taste of honorable members. I read the Bill this morning, and the severity of its penalties seems to me appalling, considering the small necessity for the introduction of some of its provisions. There have been eighteen Commonwealth Commissions appointed, according to information I have received from the Clerk, the list being as follows : - Bonus for Manufactures, s.s. Drayton Grange, Federal Capital, Goaribari Island, Insurance, Navigation, Old-age Pensions, Papua, Post Office, Secret Drugs, Shipping Service, StripperHarvesters and Drills, Tariff, Tobacco Monopoly, Tasmanian Customs Leakage, Sugar Industry, Pearl Shelling, and Fruit. T do not know that any difficulty has arisen, except in connexion with the present inquiry.
– The Butter Commission did noi obtain all the information that it wanted.
– That was a State Commission.
– Those who regard the rights of the public will not be too ready to arm. quasi-judicial bodies with stringent powers j but, if we are not careful, the liberties of the community will be whittled away by measures of this kind, and the time may come when British communities will have legislated themselves into straitjackets. It is incumbent on the representatives of the public to guard some of the liberty of action that is left, which, is perhaps the finest heritage of the people.
– The law has not had much liberty in the Sugar Commission case.
– I wish to avoid matters of prejudice. We know nothing about the facts in the case now pending. All I shall say is that it is strange that, of eighteen Commissions, only one has required an alteration of the law. The inquiries of the other Commissions appear to have been managed fairly well, although in nearly every case, I think, a non-expert - that is, a member of this House - was chairman. Prima facie, it has not been satisfactorily proved that, had the Sugar Commission’s inquiry been managed in a certain way, it would have broken down, since the inquiries of eighteen other Commissions did not break down.
– Does not the honorable member admit that the taking of nine weeks to determine the meaning of the words “ reasonable excuse “ involves a breakdown ?
– Who is to be blamed for that? Were I to impute blame, it would be to those who asked the Governor-General to appoint a Commission in such a manner as to leave it doubtful whether the Commission was properly appointed. It is on the illegality of the Commission’s appointment that the defendants rest their chief defence.
– Does not the honorable member think that what has taken place in
Sydney is due to a desire to prevent the Commission from reporting to this House?
– - Surely honorable members do not suggest that the magistrate who is hearing the case, or those who are conducting it, are trying to prevent the Commission from reporting?
– There has been a legal “ stone wall.”
– Are not those engaged in a lawsuit entitled to make any reasonable defence ?
– The determination of “ reasonable, excuse “ does not involve criticism of this Bill.
– Under the Bill, if a person summoned as a witness, or any one, chooses to criticise a Commission by words or in writing, or, as the Attorney-General put it, to bring it into contumely, although at present there is no Court with jurisdiction under which he could be dealt with for contempt in the circumstances, and under no Act is he liable to a penalty, he can be punished at once by the person who deemed himself offended, namely, the President of the Commission. It seems to me that the Attorney-General wishes the discussion of the measure to be on the plane on which he discussed it, that is, in regard to the merits of the legal proceedings in Sydney. I wish to avoid that. Any person charged before a Court of Justice with an offence is justified in taking advantage of every legitimate defence that may be open to him. One who did not would belong to a class of philanthropists within which few of us find ourselves. The Bill provides that the Commission may send to prison a person charged with* contempt, and that notwithstanding the fact that contempt is made an indictable offence. The Commission is thus able to usurp the functions of a Court of Justice by declaring a person to be guilty of contempt under circumstances in which, under English and Australian decisions, he would not be guilty of contempt. We ought to be cautious in dealing with proposals of this kind. The Attorney-General is in such a hurry to get the Bill through - the magistrate who is trying the case in Sydney being likely to give his decision within a day or two - that he forgot to put in it a provision of great importance, namely, one to protect witnesses in making statements before Royal Commissions. The honorable member for Cook asked a very pertinent question. The general principle in respect to the scope of the Commission’s inquiry in New Zealand is laid down in the case of
Cock and others v. the Attorney-General, decided in 1909, five years after the case of Ciough v. Leahy, which, therefore, could not have been criticised in it. In that case it was held that, under the New Zealand Act, a Commission could not be appointed for every purpose, but must be for some legitimate public matter. Supposing a Commission were appointed to inquire into a matter that is not by express words or necessary intendment made part of our legislative or administrative powers ? In such case I maintain that the High Court might have to declare the- Commission ultra vires. We may not have the power to adopt an impertinent inquiry - to use a word which the Attorney-General properly adopted for another purpose - into a matter within the jurisdiction of a State. Such a Commission might be declared ultra vires; and then the provision which is foreshadowed for the protection of witnesses would prove futile. A witness would be compelled under the provisions of the Bill to answer questions; and, if afterwards the question were fought, and the Court found that the Commission was ultra vires, the intended protection would be of no use to him. All this shows the necessity of being cautious in passing Bills to . meet the necessities, or so-called necessities, of a particular case or occasion.
– Does the honorable member say that we would not have power to appoint a Royal Commission to inquire into the subject of education?
– I do not wish to offer an opinion. There might, of course, be a proposal before the . House to take over the control of education under an amendment of the Constitution; and then inquiry by a Royal Commission would be perfectly relevant as merely an inquiry to enable legislators to make up their minds on a question of public policy. But there could be other cases, such as the operations of the totalisator, on which a Commonwealth Royal Commission would be irrelevant and impertinent, and the socalled protection to witnesses might, as I say, be futile. I do not know what we have to do with the question of the power of the Crown to appoint Royal Commissions. It has been decided that the Crown, like any private individual, may appoint persons to make inquiries, and these persons may be as inquisitive as desired ; but the inquiry must not be conducted on lines that will prove libellous or otherwise injurious to persons’ characters and reputa tions. A Commission of Inquiry would be futile in some cases unless clothed with certain powers ; and that power and support we give by legislation. That view is supported by the case of Ciough v. Leahy. and other cases mentioned. What was challenged in the New Zealand case was that a Royal Commission could be appointed to supersede inquiries properly within the jurisdiction of Courts of justice. It would be most unreasonable to give a Royal Commission power to inquire into the guilt of a person charged with bribery, when that is an offence punishable by many years’ imprisonment. As was pointed out at the close of the judgment of the New Zealand Court, witnesses could not, under such circumstances, be given that necessary protection which is afforded in Courts of justice, and to which witnesses are entitled. In the judgment it was set forth that such an inquiry would be virtually a trial for offences without the protection that the law gives accused persons; and the result might subject the accused to heavy pecuniary penalties. That is the reason why the Court seemed to differ from the generality of opinions in the case of Ciough v. Leahy but when the decisions are examined I do not think there is any difference in substance. The High Court assumed in that case that there was no attempt to in any way interfere with the ordinary province of Courts of justice. In the Huddart Parker case it was pointed out, I think by Mr. Justice O’Connor, that the inquiry must not interfere with Courts of justice; and we find that the questions asked by the Comptroller-General under the Australian Industries Preservation Act, must be before proceedings are taken., for otherwise there would probably be an unfair interference with the prerogatives of the Courts. It would appear from the writings of Professor Harrison Moore that if we did attempt to in any way interfere with what are properly the functions of Courts of justice, the High Court would, perhaps, have power to restrain us, and even to declare a Royal Commission - though Professor Moore does not speak of Royal Commissions - as ultra vires. I do not think there is any difficulty about the power to appoint Royal Commissions ; but in declaring the power, as is done in clause 3 of the Bill, we are giving sanction to an occasional appointment without parliamentary resolution, which is inadvisable. In England there is a very salutary practice, inasmuch as there is no general Act dealing with Royal Commissions; on each occasion it is judged what particular powers shall be given to a Commission. The wisdom of that course is illustrated by the penalties laid down in the Bill before us. which are expressly to meet the cases of rich men ; but they will be the penalties on every occasion. I know of no other Act in which such penalties are included. The Attorney-General mentioned that in the Queensland Act, from which he says these provisions of the Bill are taken, “these penalties are attached only to judicial inquiries such as those under the Queensland Criminal Consolidation Act. I examined that Act this morning, and find that these penalties are only where there is a judicial inquiry and where there is fraud or perjury.
– I was speaking of severe penalties - imprisonment.
– But one must judge what offences the penalties are attached to. These penalties are rn lie imposed by the Royal Commission on a man who has used supercilious or contemptuous language - who has criticised, perhaps in the public interest, the proceedings of the Court in a way that the Commission consider to be contemptuous.
– These powers are absolutely necessary.
– In the case of the King v. Nicholls, which was connected with the Hobart Mercury, it was pointed out that the punishment for certain kinds of contempt had fallen out of use in England; and I trust that we are more democratic than are the people in the Home land.
– The penalties set out in the Bill are the maximum ; a man may be fined £1
– It would be well if we were to cleanse our minds with the spirit of such a great work as that of Milton’s Areopagitica, on the right of public criticism. We might then be brought back to the principles so splendidly expounded and used against the restrictive limitations of Parliament; or the encroachments of the Crown. In the case of the Bahamas, where, perhaps, the most scurrilous language was used towards a Judge, the Privy Council held that, although the language might be wanting in taste, it was not, from the point of view of public interest, sufficient to constitute contempt for which the Court should punish. In England the appointment of Royal Commissions is very jealously guarded. In every case a> special Act is passed, so as to make the machinery adequate for the purpose of the. object of the Commission. For instance, if it is a matter affecting poor men, arrangements are made for the payment of the expenses of witnesses. Further, the general rule is to impose moderate penalties; and in both New Zealand and in New South Wales we find the amount to be £20. In England Mr. Keith pointed out in his work on Responsible Government in Dominions -
It is convenient here to notice the limits which bound the power of the Executive to establish tribunals other than the Courts to deal with matters of a quasi-judicial character. The establishment of such authorities has always been jealously regarded by the Courts of law, and they will, as has been established in a series of recent British cases, scrutinize very closely the acts of such tribunals to ascertain if they are within the powers afforded, and if in the exercise the authority has acted properly according to the powers - for example, has heard evidence and has applied proper principles to considering the facts so found ; the Courts, will not of course usurp a right to decide the matters which are by law removed from their ken, but will see that the authority constituted acts on the principles which bind it.
He goes on to point out that in the case of the Parnell Commission, in 1888, and the Sheffield Commission, in 1867, and others, the practice followed was to pass a special Act declaring the powers of the particular Commission. That, in my opinion, is what we ought to do here. Referring to the Australian cases, the author points out that it has been contended that anything in the shape of ex post facto legislation in this matter might be open to challenge. Clause 8 of the Bill declares that the provisions shall apply to Royal Commissions issued before the commencement of the Bill, as well as to Commissions appointed afterwards. The apology for that .provision is that it is not intended to render a man liable in respect of any acts committed before the passing of the Bill ; but, in my opinion, the wording of the clause covers offences committed in either period. That, I think, is how the Court will be likely to read the clause as a matter of plain English.
– Look at the Bill; what does it propose to do?
– There is no reservation of any sort in the clause ; so that a man may be liable to punishment for an offence committed three months ago.
– Even if the clause were not quite clear, the honorable member will not say that a Court would assume that it is retrospective.
– The words seem to be plain and clear; if there were any ambiguity the Court would assume that the Legislature did not intend to adopt, even for the purpose of validating a Commission, the vicious principle of ex post facto legislation.
– Does the honorable member say the Sugar Commission was not valid ?
– I do not. The AttorneyGeneral has offered his opinions by inference, but I have offered none. It may he that even this clause is bad, because in the case of Donohoe v. Brits, where there was an attempt to apply the penal provisions, of the Customs Act, which was retrospective, the High Court declared that those sections must be assumed not to be retrospective. They said, as recorded at page 402 of the Commonwealth Law Re port, Vol. x, 1903-4 -
But even assuming that Parliament had power to authorize their collection retrospectively, that is to say, to impose them as a debt and to authorize the retention of money paid as duty before the passing of the Act, although the collection was unauthorized at the time when they were collected, it does not follow that it had the power to make unlawful an act which was lawful at the time when it was done, nor does it follow that, if it had that power, it has even attempted to exercise it.
That statement of the High Court throws doubt upon the validity of this provision, which, otherwise, I believe, in principle is bad, and attempts to give ex post facto validity to the appointment of a Commission the validity of which is challenged, and to create, offences for acts of which a man may have been guilty prior to the passing of the Bill. If that clause is valid, and if its scope covers previous offences or previous acts, a man may be fined, under clause 6c,£500 a day - the present fine is, I think.£50 as a maximum - and for a second offence, under clause 6e, from £500 to £1,000 a day, because that also seems to apply from day to day. When a man is summoned as a witness,, one clause says that he must attend during the whole course of the Commission. If he fails to any extent in obedience to the summons, or does not attend every day, he is guilty of an offence, and every day absent means an additional penalty. He may be tried and convicted again -I suppose it means in connexion with that particular Commission, but it does . not say so, showing that this is hasty legislation - and he may be fined up to £1,000, and be liable to imprisonment, I think, up to one year. Is not this a Bil’, to deal with a particular occasion only? lt strikes me that it is. Is it a measure which honorable members ought to place on the statute-book as a matter of general legislation and relating to all Commissions? Are not the public entitled to be protected against drastic provisions of this kind ?
– Is it not in the public interest that we are doing this?
– I dare say we think so; but everything we pass is not necessarily in the public interest.
– The public ought to be protected against marauding trusts.
– If it were in our power to revive the English Penal Code of the early part of last century, by which a child could be hanged for the larceny of property valued at1s. and upwards, and if, affected by the moral obliquity of those days, we did so revive it, we should, no doubt, think that we were doing it in the public interest; but would that be any satisfaction to the father of a child to whom the “royal necktie” was applied?
– The Opposition complained a week or two ago that we would not tackle these trusts.
– ls that the meaning of this Bill ?
– Is not this an inquiry into a trust? We now see the Opposition defending the Sugar Trust.
– How can honorable members say that we are defending the Sugar Trust? It was members on this side of the House who fought against the provisions of our legislation which rendered that Trust possible. I remember how Mr. Conroy and myself and a third member, I forget who he was, fought time after time against amendments raising this very question of the sugar industry which has been the subject of inquiry by the Royal Commission.
– You fought it as Free Traders.
– It does not matter what we fight as, so long as the cause is just. We fought against the adjustment of duties which led to a loss of revenue of about £600,000 or . £700,000 a year on last year’s balance.
– You fought against your present leader.
– What does that matter? We are challenged for supporting the sugar industry ; but on this side of the House we fought against the Ministry of the day who imposed those duties. I can tell the honorable member that the fight, even from the Free Trade point of view, is not altogether dead yet. It may suit some honorable members to swallow their principles ; but I submit that, where men meet together as a party to further particular principles, as Burke says, on which they are all agreed in the public interest, it does not necessitate any sacrifice of convictions on other matters of public policy. You need not change your opinions when you band yourselves together to further general principles which are proper to . be considered and capable of being applied at a particular time. That is the basis of party government. This Bill, while increasing penalties, takes away a protection. For instance, under the present Act, if a man is summoned, it must be to answer a material question. The Bill strikes out the term “ material to the subject-matter of the inquiry,” so that a witness may be subject to a penalty of £500 for being asked to attend regarding an irrelevant matter upon which he can give no information.
– Why should he not attend?
– He may be summoned from Port Darwin by the Chairman to attend in Melbourne to give evidence on a matter not material to the issue before the Commission, and he must attend, no matter how poor he is. If he does not, he is liable to a fine of £500.
– No, he must not.
– I beg the honorable member’s pardon; he must appear if he is summoned, whether he gets his expenses or not.
– It is provided in the Bill that “ any witness appearing before a Royal Commission shall be paid a reasonable sum for the expenses of his attendance.”
– What is the good of that to a man in Port Darwin and receiving, say, 40s. a week ?
– What is he doing up there? That in itself is suspicious !
– Is he to be rendered liable to a penalty of £500 per day for disobedience of a summons to attend a Royal Commission which may be sitting 500 miles away from where he lives? A man receiving, perhaps, £2 a week, may have to travel 500 miles before he is tendered his expenses. Is it a fair provision to put in an Act of Parliament to render him liable to a penalty of £500 a day? ‘
– I do not think it is fair.
– It is in the Bill.
– Then we will amend it.
– That shows how hasty this legislation is. The New Zealand Act provides that a man cannot be punished for not attending the sittings of a Commission unless his expenses have been tendered to him and he afterwards fails to attend. Not only has he a right to set up a reasonable excuse, but he must have his expenses paid to him. The sooner we place on our statute-book in connexion with all our inquiries a general Act upon that point, the better. If honorable members go through the Bill they will find that its provisions are altogether out of proportion to what is required. They are excessively severe, and I am afraid that the tendency of our legislation is to impose most drastic penalties for light offences. It is so in the Customs Act and in the Parliamentary Witnesses Bill, now before the House, and it is particularly noticeable in this Bill.
– We must have high penalties when dealing with millionaires. .
– Then we should not make a general law which will bring into the net not only the millionaire, but 90 per cent, of the people whom we do not want to touch. Regarding the tendering of witnesses’ expenses, and the question of the retrospective character of this legislation, I intend in Committee to move amendments. I suggest that the retrospective provisions should not apply to any offence committed or act done before the commencement of the Bill.
– I am sure the Bill does not apply to any acts done before its commencement.
– It struck me that the draftsman did not intend it to apply, and 1 do not believe the Attorney-General can justify, under any political necessity, the imposition upon men of penalties for offences which they did not know existed.
– I am prepared to meet the honorable member’s objection if he will assure me that he believes any Court will say that clause 8 will apply to any act done before the passing of the Bill.
– I think it may apply as it stands. The only protection that I can see that the witness can have is that, if a prosecution took place under the present law, he might be able to plead that he had been previously acquitted - what the lawyers call autrefois acquit. For any acts, however, for which’ there are no proceedings pending, he can be prosecuted under the terms of clause 8. I submit that opinion, of course, subject to any views that may be offered by the honorable member for Darling Downs and others.
– I shall be glad if the honorable member can supply me with an amendment to clause 8 that will make the intention any clearer.
– I must ask honorable members not to go into the details of amendments.
– It might be provided, for instance, that no person shall be liable to be prosecuted for offences or acts committed before the commencement of the Act.
– That is intended, and if it is not clear I shall make it so.
.-= I am afraid. the Attorney-General, in proceeding with a Bill of this description,’ may, if he. is not careful, impair to a considerable extent the very useful Executive power which we now exercise in the appointment of Royal Commissions. To my mind, the power of appointing a Royal Commission is invaluable in the prosecution of the public duties which we have imposed upon us in this House. One authority very properly says -
Preliminary inquiries by a Royal Commission are of inestimable service to the working of parliamentary government. Besides affording peculiar facilities for ascertaining facts, they frequently bring to light a mass of information upon the subject in hand which could be obtained in no other way, and the report of an able and impartial commission is often of the highest value in the instruction and enlightenment of the public mind.
Then is quoted the following passage from a’ paper read by Mr. E. Chadwick, C.B., before the Society for Promoting the Amendment of the Law -
The questions of pauperism and poor-law administration, of crime and penal administration, of pestilence and sanitary legislation, and of the evils attendant on excessive manufacturing labour, are conspicuous instances of the effects of commissions of inquiry in reversing every main principle, and almost every assumed chief elementary fact, on which the general public, Parliamentary Committees, and leading Statesmen, were prepared to legislate.
On this the authority comments -
It is not only as being directly helpful to Ministers of the Crown in the preparation of their legislative measures, but also as a means for the impartial investigation of every class of question upon which the Crown or Parliament may need to be informed, that recourse may appropriately be had to a Royal Commission.
This, therefore, is a power which we ought iealously to conserve, because it is of great value to ourselves as legislators in the interests of the people of Australia. We ought to make our Commissions, as far as we can, quite impartial and untrammelled. Witnesses should not be brought before a Royal Commission under a sense of fear. The desire of a Royal Commission should be rather- to invite all persons who have information to impart, to come before it, and to freely and voluntarily give all the information they can upon the particular matter into which it is inquiring, and in which the public are deeply interested. Royal Commissions should be appointed to assist rather than to retard an industry, or to ascertain the particular failings or defects of individuals. I- agree with the Attorney-General that the power to issue Commissions is quite as wide as are our ; constitutional powers,, and as long as we issue Commissions to inquire into matters of public interest I fail to- see how that power can be called in . question. The power is, and must’ be, unlimited. The “Crown possesses the prerogative to inquire into . all matters affecting its own particular interests under the Federal Constitution. There are certain questions regarding which we are particularly, entitled to obtain information. To quote Sir Robert Peel - ‘
Where Parliament has given peculiar privileges to any body of men, as for example, banks or railway companies, it has a right to ask that body for information upon points which it deems necessary for the public advantage to have generally understood.
That is a reference to . particular bodies, such as railway companies in the States who have obtained from Parliament statu- tory powers and privileges.
– All companies.
– We are particularly entitled to inquire into the working of all companies operating under powers that we give them, and which confer upon them rights and privileges in the community.
– The honorable member does not suggest that our power is limited ?
– Certainly not. so long as we keep within the terms of the Constitution. The mistake of this Bill is that it places all Commissions on the same basis. All Commissions, whatever the scope of their inquiry may be, are to be on an equal footing, and to have power, no matter how unimportant they may be, to proceed under the cover of these powers and under the Act providing these penalties. I think that the English principle is a. sound one. Under the English system Commissions are divided into’ classes to get at facts.
– How can a Commission get at facts when witnesses will not give them?
– Witnesses, as a rule, do give the evidence required of them.
– They do not.
– I shall deal with that point presently. I should prefer a measure of this kind to be so drafted that, by proclamation, it could be applied to a particular class of Commission after that Commission had been appointed.
– Always delay and delay.
– My suggestion involves no question of delay. We are considering this Bill, and its effect upon Royal Commissions, I hope, quite independent of political motives. I hope that it has not been framed in connexion with any existing case.
– It is a Bill of general application.
– And it is on that basis that we should deal with it. Honorable members opposite should not forget that they may not always be in the happy position of being able to advise the Crown in the exercise of this prerogative. The power of appointing Royal Commissions must have some limitations. Todd, in his Parliamentary Government in England, points out that there are imposed on Royal Commissions constitutional limitations. These are in the nature of conventional, rather than legal, limitations. He writes -
It would be unconstitutional to refer to a Royal Commission “ subjects which are connected with the elementary duties of the Executive Government and with its relations to Parliament “ ; or, to investigate a grievance^ which arises out of a particular decision of Parliament, on a given question ; or, to appoint a Commission with a view to evade the responsibility of Ministers in any matter; or, to do the work of existing Departments of State, who possess all needful faculties for obtaining information upon questions of detail, and who are directly responsible to Parliament; or, to inquire into acts of misconduct which may have been committed by a Judge, or Minister of State, which should be investigated by the House of Commons ; or, into the conduct of persons charged with criminal offences, except they be officers of the Crown, and the right of inquiry into their conduct by Commission is expressly derived from an Act of Parliament, and which are cognisable by the ordinary Courts of Law. Neither should a Commission be appointed unless the Government are prepared to give definite instructions to the Commissioners.
Thus- there are- constitutional limitations placed upon the exercise of the power.
– Are they not merely the traditions of responsible government?..
– They are the limitations of constitutional conventions; but practical experience has shown that these limitations should be placed on the power to issue Commissions. In dealing with this proposal to clothe Royal Commissions with very wide powers, and to make citizens liable to drastic penalties, we ought to ask ourselves whether we are sure that we always appoint Commissions of a non-partisan character. Are we sure that Commissions of a non-partisan character will always be appointed in the future?
– Judging by the past we are not.
– I am only putting the position before honorable members. I find that Todd, in his Parliamentary Government in England, says -
Under any circumstances a commission of inquiry ought not to be of a “partisan” character, but should comprise “ the fairest and fullest representation of all opinions,” even such as may be “ strong and extreme “ on the question proposed to be investigated. At the same time the composition of a Roval Commission is a fair subject for parliamentary criticism.
If a partisan Commission were appointed, it would be able, under this Bill, to exercise very wide and far-reaching powers. Remarkably drastic powers are placed in the hands of the Chairman of a Royal Commission by this Bill, which makes provision for heavier penalties than have been provided for in any other Act of the kind passed in any part of the Empire. The Chairman of a Royal Commission will, amongst other things, have power to summon witnesses - to direct the production of any document, book, or paper - and if a witness refuses to answer questions which, by the way, may be of a strongly partisan character, he will be liable to the pains and penalties of this measure. We must test this Bill by the extremes to which its provisions may be carried. We have to look at the way in which the power proposed to be vested in the Chairman of a Royal Commission may be exercised. We know that it is not the practice in the issue of commissions to. unduly limit the scope of an inquiry.
– The Government of the day is responsible for the appointment of a Commission.
-Yes, for the appointment. : A Commission having once been appointed, the responsibility of the Government ceases so - far as the internal procedure of that Commission is concerned ; though, of course, it is still responsible to the Crown. I think I have heard the present Minister of Trade and Customs say very properly, when asked why counsel should not be allowed to appear before a certain Royal Commission, that the question was one for the “Commission itself to determine. We must not forget, in considering this Bill, that as soon as a Royal Commission is appointed it will be clothed with all the legal powers for which this Bill provides. The procedure in connexion with a Royal Commission is very different from that of a Court of justice. In a case coming before a Court of justice the plaintiff states his claim, and the defendant sets forth his defence. The issues between the parties are determined, and each knows clearly what is in controversy. All matters relevant to the issue between the parties must be ascertained. A Royal Commission, however, has wide jurisdiction over a vast body of subjects. As the law stands to-day, the Chairman of a Royal Commission has no right to -call upon a witness to produce any document, book, or writing in his custody, or under his control, unless it is material to the subjectmatter of the inquiry i He has, therefore, to take care to see that any written evidence for which he asks is relevant to ‘ the subjectmatter of the inquiry. That provision in the principal Act is now to be omitted, so that the Chairman of a Royal Commission will be at liberty to compel a man to produce any documents, books, or papers that he pleases to call for. Not only will he have that power, but, the books or documents having been produced, any extract may possibly be taken from them, notwithstanding that it may have nothing to do with the subject-matter of inquiry.
– The omission of these words will have no other effect than to make a witness clearly see that what is material is not that which he thinks, but that which the Court thinks, material.
– Exactly, and if these matters had to be decided by a Court, with all the issues clearly denned, I could see no objection to the proposal. Under this Bill, however, a Commission will have power to call for the production of books, and no objection can practically be taken to extracts being made from them. A Commission will have power to investigate profits, and possibly obtain details quite outside the scope of its inquiry.
– In that case -refusal to produce would not be followed by the imposition of a penalty.
– Under this Bill a witness is bound to produce books for which he is asked.
– If he does not, what follows ?
– Proceedings may be taken against him for refusal to produce.
– The honorable member -is now going* into details which may not be discussed at this stage of the Bill.
– I am simply contrasting the procedure of Royal Commissions with that of a Court of justice. It is proposed by this Bill to give. to Royal Commissions all the powers exercised by Courts of justice without the protection and safeguards always found in connexion with a judicial tribunal. The Government are thus introducing into the practice relating to Royal Commissions a very serious element, which may be found in the end to be detrimental to the welfare of the country.
– How will the Bill affect the legal profession?
– It may promote litiga tion. In England at the present time a Commission has no power under the common law to compel the production of documents, to summon witnesses, and to compel them to give evidence, or to administer an oath. But Todd points out that the want of compulsory powers has seldom prevented a Royal Commission from obtaining full and impartial information upon the subjectmatter of its inquiry. That is the experience of a great country like England in this regard. There Royal Commissions have not the powers proposed to be conferred by this Bill.
Mr.Hughes. - Special Acts have been passed in regard to Commissions of inquiry.
– Quite so; but I am talking of the general power. In the Canadian Statute of 1906, entitled, an Act Respecting Public and Departmental Inquiries, a distinction is drawn between public and departmental investigations. It is declared in that Act that -
The Commissioners shall have the power of summoning before them any witness, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the Commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.
Th’ese are the powers that they ‘possess’; but no ‘ heavy penalties are imposed. The powers conferred by the Queensland Act are not so far reaching as those given by the Bill. In proposing to legislate for a special case, with a view to removing difficulties that have arisen, the AttorneyGeneral asks us to act on a wrong principle. Such legislation is likely to become retaliatory and to do injustice. Our concern should be with the general purposes anc* objects of Royal Commissions, without regard to individual cases. I do not think that the powers of Royal Commissions should be used as an aid to criminal prosecutions. We have already ample statutory power for . obtaining ‘ such information as may be necessary in prosecuting trusts. The investigation of a Commission into the objects, purposes, operations, and methods of corporations can be conducted without the assistance of drastic and extreme powers such as those conferred by the Bill. Could it be shown that wider powers were required in any case or class of cases, I should not be slow to give them.
– Which of the powers conferred by the Bill is too wide?
– The powers conferred by the Bill are too wide to be exercised by every Commission that may be appointed. When a particular public evil arises which requires special investigation, it should be brought -before Parliament, and a measure specially framed to meet it introduced ; but in this case’ wide powers are proposed to be given to every Commission which may be appointed, merely to remove difficulties that have arisen during an investigation now in progress. Such legislation is not in accordance with English practice, or that of other parts of the Empire, and establishes a dangerous precedent. I believe that every Commission should have the powers necessary for its investigation, but those are not the powers conferred by the Bill.
– I agree with the honorable member tor Angas that this is an inopportune time for the introduction of the Bill. I thought, from the speech of the Attorney-General, that the decision of the magistrate in Sydney upon the twenty points to which he referred had been given against the Crown; but I have learnt since that the case is not yet decided, and that the Government is anticipating that the decision will be given against it, and is bringing in the Bill to correct the shortcomings of a measure which has not yet been found at fault.
– That is not so.
– Is it not a fact that the investigation of the Sugar Commission has been stopped because exception has been taken- to the Commission’s attitude towards certain witnesses, and that for weeks a case arising out of the refusal of witnesses to give evidence has been before a Sydney magistrate? And is it not a fact that, without waiting for the decision of the’ magistrate in that case, the Attorney-General’ has introduced the most drastic measure we have ever had before us, to correct a fault in the Royal Commissions. Act which has not yet been established? I admit that there is a very strong prejudice against the Sugar Commission. Even honorable members opposite cannot fail to be convinced that it has been properly stigmatized as a partial tribunal, there being a feeling throughout Australia that it is one in which no less than four-
– The honorable member is going beyond the question. He may not comment on the conduct of the Commissioners.
– I wish to support my statement that the Bill has been introduced inopportunely. It deals in an extraordinary manner with certain offences, and, as the honorable members for Darling Downs and Angas have pointed out, provides for what are rich men’s penalties. If some of the offences created by the Bill were committed by poor men, they would have no alternative but to go to gaol. When a poor man must either pay a fine of £100 or go to gaol for three months, he, perforce, goes to gaol. A rich man is in a different position. When a shipping firm is prosecuted and fined £500, it pays the fine, and goes on with its business as if nothing had happened. But a poor man is in a different position. Are honorable members aware that, not only the refusal to answer questions, but also disturbing the Court is an offence punishable by these penalties. A great distinction is to be drawn betwen a Royal Commission - especially this one - and a Judge or magistrate. Happily our Judges and magistrates are chosen for their ability and impartiality.
– What about the Chairman of the Sugar Commission. Is he ,lu a Judge?
– If the honorable member were to ask me for my opinion of him, his method of examining witnesses, and his conduct towards them, I should probably use language which would be uncomplimentary, and out of place, in a debate of this kind. I have seen his examination of witnesses, and say that no more “leading” questions could have been put by counsel on an adverse side than were put by him. We must consider the offences and penalties created by the Bill in connexion with the nature of the tribunal with which they are connected. Most of us believe that the Sugar Commission was appointed to make what I may call a foundation for referenda proposals. We must consider the attitude of those who have come before it, and its attitude towards witnesses. I shall nor go into details to show that the Commission has differentiated between one witness and another, but we know that matters came to a head in connexion with the desire of a witness to present a written statement before submitting himself for examination. Coming now to the offences provided for clause 60-
– The honorable member must not discuss the Bill in detail.
– I merely wish to inform the House of the facts on which I base my criticism of its. general principles. It does not merely provide against the refusal to answer particular questions or to disclose certain information, but it allows the Commission, if in the opinion of the Chairman, some one disturbs the Court, or says something derogatory of it, to punish that person.
– Only if the Chairman is a Judge.
– There is nothing in the Bill to prevent the Chairman from insulting a witness, and there is greater reason from what we have seen to believe that witnesses will be insulted than that they will insult the Commission. We have been told by the Attorney-General that witnesses will be exempt from disclosing secret processes -of trade, but he has told us nothing about their right to refuse to give answers which may be derogatory of other persons. Offensive or slanderous statements, made in answer to a Royal Commission’s questions, will render witnesses liable to actions at law in which they will be compelled to- justify their statements. Then persons coming before the Commission may be required to answer questions regarding business which is not conducted in the . Commonwealth or connected with the Commission’s inquiry. Those who have read through the list of questions formu lated by the Sugar Commission for the manager of the sugar company know that some of the witnesses have been required to disclose- the details of business conducted in countries other than the Commonwealth. Although the revival of the Star Chamber seems to be aimed at by the Government, I ask honorable members if a Commission should have power to call on any person to give details concerning the business that he carries cn in England, Fiji, or Java, or some other country. I have justification for saying that this is contemplated in view of the questions already formulated. The AttorneyGeneral has told us that this Bill is designed to supplement the powers of the Sugar Commission; and, therefore, I am perfectly justified in keeping this view before honorable members in criticising the measure. This Bill practically empowers that Royal Commission to ask any question it likes, except the one which the AttorneyGeneral has mentioned with regard to the processes of business. This is .the beginning of a state of things that is highly undesirable. We are creating an engine, the outcome of which we cannot foretell.
– A Royal Commission cannot lawfully ask a question outside the scope of its commission.
– Then why this Bill ? A Royal Commission has now power to ask any material question. The first clause of the Bill provides that the fact of a question being immaterial is not sufficient to exclude it; and I shall show honorable members how this proposal is made. It is proposed to amend section 2 of the principal Act by omitting the words “ material to the subject-matter of the inquiry,” and to insert instead “ which he is required by the summons to produce.” This means that a Commission need not confine itself to questions which are material to the subject under discussion, but may ask any question - demand any thing it likes to “ require “ by the subpoena. Then follow the penalties which, as I have said, are rich men’s penalties. A poor man brought before the Commission may be asked questions of the most delicate and confidential character, and the penalty imposed on him, not by a Court, but merely by the Commission, may mean gaol or a fine he cannot pay. Is the Labour party going to affirm a Bill, the, most drastic ever introduced into this or any other Australian Parliament? Remember that a Bill of this sort will not be confined. to the particular Commission I have mentioned. Honorable members would do well to recollect that there are limits to the powers of a Royal Commission, In the well known shearers case, Ciough v. Leahy, the Court laid down an important principle -
Royal Commissions of Inquiry aTe lawful ; and the Courts have no power to restrain persons acting under the authority of such Commissions, provided they do not invade private rights, or interfere with the course of justice.
The Chief Justice said-
If persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful, and would be punishable. So that, in this respect the powers of the Crown are practically no greater than the powers of a private individual. It is quite unnecessary, indeed, to call in aid what are called “ prerogative “ powers of the Crown. That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority. There are some such powers exercised under the law, but the power of inquiry is not a prerogative right. The power of inquiry, of asking questions, is a power which every individual citizen possesses and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel ‘an answer ; and if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters ‘ trie words is liable to the consequences of ‘.-an’ unlawful publication of defamatory matter.
This Bill entitles the Commission to ask any question it thinks proper, with the one exception mentioned by the AttorneyGeneral ; and yet, according to that decision, if, in answer to a question, a witness utters defamatory matter, he will be rendered liable in a Court of law. I mention this, not because such a case is likely to arise, but to show the danger we are running in establishing a wholesale power in a Commission, even though it may be an impartial Commission, to call citizens before it and demand any answer to any question it thinks fit. This only bears out the statement of the honorable member for Angas, that this is an ill-timed measure in view of the fact that the necessity for it has not been demonstrated. The twenty questions which the Attorney-General complains of have not been decided by the magistrate; and to introduce the Bill at this time is to create an impression in the public mind that the Government are determined to “ run down “ this particular industry.
– I think the public will back the Government up in the matter.
– That may or may not be; the honorable member is not better qualified than I am to judge what the public will say. I think most honorable members know that there has .been a feeling right through Australia that this Commission is a partial one, and that the Judge has conducted himself in a way that has discredited the Commission. While that feeling exists it is inopportune to introduce a measure of this kind at this. time. I quite indorse all the criticism offered by the honorable member for Angas .and the honorable member for Darling Downs.
– I do not propose to detain, the House with.,a repetition of the legal and general criticism we have already heard from honorable members on ‘ this . side, particularly from the honorable members for Angas and Darling Downs. They have considered not a whit too carefully - though generally - a measure the importance of which is far greater than might at first sight .appear. -My point is that, if this Bill were recommended to us as a special measure to meet a special emergency,- I could understand a sound argument being employed for a considerable portion of its provisions. But the wholesale character which is given to amendments obviously, intentionally, and deliberately aimed at a particular case, is likely to prove most injurious to the public interest. It places in the hands of inconsiderate and intemperate persons, a weapon which may be hereafter used under circumstances of the greatest injustice, and do serious injury to the reputation of the Commonwealth. And what for?
If the Attorney-General had frankly come forward with a statement that the Commission appointed to deal with the sugar industry had been unhappy in its results, and he had pro- posed stringent measures - some of them, perhaps, very stringent - with a view to enabling the inquiry to reach a natural and proper conclusion, I venture to say he would have found few, if any, opponents in the House. I believe that the community are perfectly prepared to support “the Commonwealth Parliament in undertaking any investigation which may be ‘necessary, in the public interests, in regard to any business or pursuit in the Commonwealth. I do not propose to consider for a moment the complexion or constitution of the Sugar Commission, or the manner in which it has conducted its proceedings; not that these do not afford plenty of food for comment, but because this is neither the time nor the occasion. I wish to concentrate, attention on the indisputable fact that this is a measure drawn to meet a present particular instance. The Attorney-General requires no reminder from me that such a practice is in law universally condemned.
– I do not agree with the honorable member; this inquiry has provoked the Bill, but the application of the Bill is general and necessary.
– Only on the supposition that we have to provide for most extreme cases by legislative enactment, instead of permitting ourselves to retain the liberty which the English Parliament has always jealously maintained of adjusting the means employed to the precise ends we desire to reach. Consequently we have a measure which, whatever parts of it can be justified in relation to a particular instance, must clearly prove a misfit in a great number of other instances. We are casting on bodies of men, consisting usually of laymen, sometimes aided by members of the legal profession, some or all of them with a particular bias or tendency, the duty of conducting proceedings employed as part of the general law of the community, instead of being, as they might well be, designed to meet particular grievances.
It is probable that the existing law relating to Royal Commissions needs amendment in minor particulars. But, even so, that should be accomplished by a general Bill, and not, as in this case, trust to a Bill designed to meet a particular set of circumstances, and aimed at a particular Commission conducting its business in a particular manner. This Bill, though it is to apply universally, is framed upon an unwise principle, the application of which we shall afterwards regret. Opportunities for abuse accompany every endowment with power; and the greater the endowment the greater the opportunity. A toy pistol has its dangers in the hands of a child, but infinitely much more mischief may be worked if we give that child access with matches to a powder magazine. So, in general legislation, we require to look with greater carefulness and scrutiny at the powers given, than when we are confronted only with a specific case. This is a special case. That is the main indict ment against this measure - that it is drafted in relation to a particular case, and, in all respects, a very extreme case.
Royal Commissions are agencies of Government of the utmost importance, absolutely essentia! “ to. the successful preparation of much of our legislative and administrative business. They are tribunals to which we must refer again and again for assistance in solving the political and social problems by which we are surrounded. Because they have all these claims on our attention and consideration, it appears to me that our procedure in regard to Royal Commissions and their endowment with power cannot be too carefully safeguarded, or too strictly limited to meet the emergency with which they are intended to cope. Every consideration and qualification in this regard has been thrown aside in shaping this measure. Hereafter, without regard to the composition of a Commission, without regard to the status or experience of its members, and without regard to a possible inflammatory state of public opinion during which such a Commission may have been launched, or in connexion with which it may be operating under untoward and provocative circumstances, some .comparatively minor Royal Commission may be turned at large °ki the community with vast powers, capable of abuse, that afterwards much legislation, much explanation, and much recompense cannot appease. Surely it is a serious objection which has been deliberately made by practising legal members of this House - the three or four who have spoken from these benches - that in no other country in the world can a measure of this character be pointed to so extreme in character, so lavish in its trust to any one who may be appointed a member of a Royal Commission the largest powers over the property of the rich and the liberty of the poor.
In these circumstances, the AttorneyGeneral appears to have been ill-advised. There has been no indication on the part of the House - and I doubt if there would be - of any unwillingness to grant the fullest authority necessary for the natural and proper completion of the task of the particular Royal Commission! which now finds itself in difficulties. If the powers asked for had been limited to that particular occasion, I assume that our business in this regard would have been readily transacted. But we are bound, by our duties to our constituents and our obligations to. the public, to point out that, how- ever relevant some of these provisions may be to the conditions and circumstances existing in that particular case, they are wholly irrelevant to most of the Commissions likely to be appointed in our time. They will place in the hands of different bodies of persons an authority which may fairly be described as tyrannical. There are members of this community to whom a fine of £500 would mean beggary. No discrimination is provided for. We have seen Royal Commissions lose their heads, as other bodies of men have done, under special circumstances.
– Five hundred pounds is the maximum, and not the minimum, fine.
– True; but with an inconsiderate, an excited or inflamed Commission, these things will be possible. Yet the reaction against such abuses, and their condemnation, would fall on us for not discriminating, as we might now easily do, between different Commissions, having regard to the task which each has in view, though doubtless some general conditions would govern them all. We should follow the English practice in that regard. You do not send a child with a cannon to shoot a sparrow.
– What liberty are we taking away?
– The liberty to abuse autocratic powers unnecessarily granted. This Parliament would readily confer any necessary authority in this or other cases, but the universal character of the endowment proposed here makes this as universal an extravagant measure-
– It only takes away the liberty to refuse information which is required in the public interest.
– Every obstacle of that kind could be adequately overcome by a grant of powers capable of coping with any particular instance in which they were required. We may have one Royal Commission intended for the largest, widest, and highest purposes of statesmanship. We may have another of a narrow, technical, or even local, significance, important perhaps in itself, but moving within a small circumference, and agitated by but few interests. It is obvious that there may be an infinite variety of demands for and then upon Royal Commissions, and an infinite variety of endowments to meet them. But to invest them all with enormous authorities, and penal;zing” powers, no matter what’ particular task they may be devoted to, is unnecessary and extremely unwise. I fear that this is hasty legislation which some of the younger among us will some day have cause to regret. The history of such Com-‘ missions in the Mother Country shows that they have varied from generation to generation; they ought to vary here and to be carefully adapted in their several special ends to this Commonwealth. We look round at the mass of the people of this community and findalmost the whole of them engaged in earning their livelihoods in some honest fashion’. The number of the rich and powerful who can- snap their fingers at the law, is exceptionally small. Those we are prepared to deal with whenever necessary’; but to turn loose upon a community of ‘this kind earning its daily bread by simple means and endeavouring, by modern methods, so far as their conditions allow, to tread, faithfully the path of progress, a pack of petulant Royal Commissions invested with tyrannical authority, is to ‘invite disaster, if not to insure it. “’.
– I hope there will be no hesitation when the outside public understand this matter. I consider that a Royal Commission should have the full power of a Judge in his Court, no more and no less. It seems absolutely ridiculous, except from a legal point of view, that a Court of law, presided over by a magistrate, should thresh out, at great expense to the country and to the individual defendant, the question of. whether he should or should not answer a question. I cannot imagine that sort of thing occurring with regard to a question put in a Court of law ; and I do not see why it should occur in the case of a question put by a Commission. The honorable member for Ballarat said that no other country could show us a Bill like this. No other country can show us a measure giving women the right to vote. No other English community can show the Torrens Transfer of Land Statute. We lead the world in many particulars ; but if we wait for the legal gentlemen, we shall always be dragging behind, and always encounter delays.
– We do not want you to mislead the world.
– I think the honorable member almost attains the status of a jurist. He is one of the best of a bad lot, hut he cannot get away from his legal training. He would be a much better man, humanly speaking, if he had not been brought up in the legal profession. I find, on consulting the British Encyclopedia, that a Royal Commission in England is appointed by the Crown, and the commissions usually issue from the office of the Executive Government which they specially concern. The objects of the inquiry are carefully defined in the warrant constituting the Commission, which is termed the “reference.” Unless expressly empowered by Act of Parliament, a Commission cannot compel the production of documents, or the giving of evidence, nor can it administer an oath. If it cannot do these things, what, in Heaven’s name, is it worth ! I had the misery of being on a Commission which inquired into the grievances of the tramway men of Melbourne. The honorable member for Ballarat was in the House at the time, and he knows that we could not ask certain questions. He knows that another member of that House, the late Mr. G. D. Carter, who fought from that very corner opposite, with the late Mr. Thomas Bent, and prevented our streets from, being handed over for ever to the Melbourne Tramway Company, or Combine, was made to lose his seat, by that company spending its money in bribery and corruption. He lost his seat because of the fight that he put up for the people. We, who were members of that Commission, wanted to know the hours worked by the unfortunate men who were driving horse trams for the company ; but we were not allowed to go into the question. Three members of the Commission, one of them a ‘legal’ gentleman, retired, with the object of destroying the Commission; but the Commission, on the advice of Mr. John A. Isaacs, carried on, and every member had to be present to form a quorum, but the technicalities surrounding us prevented us from asking ‘ the questions which would have proved conclusively the terrible hours those men worked. That Commission failed in all the things in which it should have succeeded, simply because of the trammels with which it was surrounded. I hold that any Commission which this Parliament thinks worthy of being appointed should be enabled to ask any question that it thinks fit. If I say anything that may jar on the honorable member for Parkes, it is only in the desire to take the part of a man who is outside this House. He, having greater legal knowledge than the magistrate who is now trying the case before the Sydney Court, was better able to judge whether a certain question should be asked or not. Be that as it may, I object to the strictures of the honorable member, who, at one time, represented the greatest majority of any member in this House, but who now represents simply a minority.
.- The most regrettable feature of this Bill is the time of its introduction. It is very sweeping and undesirable in a number of ways, and must be most carefully scrutinized before passing; but its introduction at the present time is the most regrettable thing I have known in the ten years I have been in this Chamber. There is a case now sub judice in New South Wales, but it has been referred to in the whole course of this debate. It was introduced, in the first place, by the Attorney-General, when moving the second reading of the Bill. It has now been referred to again, and the respective judicial merits, of the Chairman of an existing Royal Commission and ot the magistrate who is trying the case have been dragged into controversy in this Chamber. Such things are infinitely to be deprecated and deplored. I propose to pass over as well as I can any reference to the matter upon which the Attorney-General has based his1 excuses for this measure.
While the Bill contains hosts of pains and penalties that are to attach to any person who at some future time may in a vague and undefined way offend the susceptibilities of some Royal Commissioner, there is absolutely no guarantee in the Bill that the standards of our Royal Commissions are to be improved. If we grant these unlimited powers to Royal Commissioners, there ought to be some check upon the wholesale and careless abuse of the power to appoint Royal Commissions. We have heard a good deal in the debate about no other country in the world giving such powers as these. The statement is true of the world to-day, and the mere fact that it is true is not necessarily an argument against a measure of this character, but the only parallel I can find in history of men charged with powers such as we have in this Bill should make this Parliament pause before passing the Bill. The only persons in the world’shistory invested with similar powers werethe delegates of the French Revolutionary Convention, who were sent travelling with almost sovereign powers throughout theFrench Republic. Did they do any good for any other person than themselves ? Is it: not a fact, known to the earnest and careful student of that revolutionary period, that the gentlemen who went out with those enormous powers abused them to their own personal enrichment? You cannot put vast powers within the discretion of any man without exposing him to the temptation to make some profit out of them. That is the teachingof history. If you give men powers such as this, what use or abuse will not be made of them?
I find in this Bill that any person who, by writing or by speech, uses words “calculated” to bring a Royal Commission into disrepute is to be guilty of an offence, and subject to a £100 fine, or imprisonment for three months. That is not necessarily for doing anything before a Commission, or creating a disturbance at a meeting of a Commission - which is a thing that a number of honorable members who will not read measures have in their mind at the present time - but for writing or speaking words calculated to bring a Royal Commission into disrepute. And who is to be the judge? The Bill provides that-
If the President or Chairman of a Royal Commission or the sole Commissioner is a Justice of the High Court, or a Judge of the : Supreme Court or County Court or District Court of a State -
In other words, if he is a most prominent : member of a profession which my honor able friends opposite used a few years ago to call a profession of blood-suckers and vampires - he shall, in relation to any offence against subsection (1.) of this section committed in the face ^of the Commission, have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in face of the Court, except that any punishment inflicted shall not exceed the punishment provided by -sub-section (1.) of this section.
The Chairman therefore imposes the penalty himself for any criticisms of his actions, or even of himself. Somebody -may have written something about him perhaps not liking his facial appearance ! “Somebody may object to him in some way or another, charge him with unfairness, or suggest that the use of epithets like “deliberate liar” are not suitable for use by. Supreme Court Judges. In the mind of such a Chairman any one would be guilty of having used words calculated to bring his Royal Commission into “ disrepute,” even if he had merely detailed the actions or the words of the person who was after wards to judge of his offence ! What a remarkable power is this which the Government are proposing to give without the slightest guarantee that Royal Commissions in the future are going to be any better than Royal Commissions have been in the past !
We have heard a good deal about what we may describe as the defendants in the matter of this Bill. I am not going to say a word in their behalf. But we have not heard a single whisper of the plaintiff’s side of the business. Apparently we are passing this measure because the Sugar Commission is in some difficulty, and it is not considered advisable to wait for the decision of the magistrate upon the merits of the case now being heard in Sydney. The Sugar Commission is in some difficulties, and at its instance, perhaps, this measure has been submitted, and is going to be rushed through this Parliament. Let us examine for a moment what we are doing. In the first place, we are insulting the Court, which the existing Royal Commissions Act vests with the power to determine the powers given under that Act. The prominent feature of the case now being heard in Sydney, so far as I have seen it reported in the newspapers - and that case is being protracted largely, I understand, by the illness of the presiding magistrate - is the plea of the defendant’s counsel that they had “ reasonable excuse” for non-appearance before that Commission.
– The honorable member must not discuss that matter.
– I am merely referring to a matter with which the Attorney-General dealt at length.
– I did not understand him to deal in detail with the matter.
– I have said only a word or two in regard to it, and I am referring to it only to show how important the question of “reasonable excuse” is in connexion with this Bill. I must claim an equal right with the Attorney-General to refer to the matter.
– The honorable member will have equal rights with every other honorable member of the House. He will not be deprived by me of any of his rights, but he must confine his attention to the question before the Chair.
– I am going to take one of the most important provisions of this Bill-
– What is it?
– I shall not name it lest I come into conflict with the technicalities, of . the Standing Orders. The AttorneyGeneral, in dealing with this question of “ reasonable excuse,” very properly, in my judgment, referred to that clause without naming it, and he dealt with it at . considerable length. He . referred to the fact that the defendant, in the first of the cases heard in Sydney, hadlaid great stress on this question of “ reasonable excuse,” and I did not hear you call him to order, Mr. Speaker. All that I want to say is that the magistrate in Sydney is now trying to determine whether the Colonial Sugar Refining Company had a “ reasonable excuse “ for not appearing, through, its representatives, before the Royal Commission on the sugar industry. He has to decide that question, and, naturally, he has to try to decide for his own satisfaction, at any rate, what this Parliament meant when it inserted in the Act of 1902 the provision with regard to “ reasonable excuse. ‘ ‘ ‘ On. the very eve of his deciding that question - for all we know, perhaps on the very day that he is giving his decision - at the very time when we can most influence his- judgment, the AttorneyGeneral comes into the National Parliament, and tells the magistrate deciding this case what, in the opinion of this Parliament, would be a ‘”’ reasonable excuse “ for staying away from the inquiry. That . is reallv an extremely regrettable matter. Under the principal Act it would be feasible to hold that if a Royal Commission behaved with gross partiality and unfairness towards a particular person among the numbers who appeared before it, that fact was, in itself, a “reasonable excuse” for the person concerned absenting himself. There is now to be no such “ reasonable excuse “ for absenting oneself from the proceedings of a Royal Commission. A Royal Commission may exceed its powers’; it may be packed, and act merely as the tool of the Government in power; ‘but, in the case of any person dragged before it, perhaps, for party purposes, it cannot be held to be a reasonable excuse for disregarding its ‘summons that that Commission ‘has prostituted its powers.
That being so, for the future, surely we must seek to put in this measure some safeguard tha’t will raise ‘the standa-rd of Royal Commissions in Australia. We have had some good and some bad Commissions. As a matter of ‘strict fact, Royal
Commissions are appointed nowadays iwitb^ almost reckless irresponsibility. As to the particular Commission that has been rer; ferred” to by honorable members opposite, at such length, I have already expressed my, opinion as to its composition, and I do not propose to go further into the matter. I have, however, one remark to make that may be of. interest to honorable members who are so anxious to get at the facts, and rightly so, because the sooner we get at the facts the better for Australia. I wish to say that it is very, difficult, even for the friends of that Com-, mission, to follow it in some respects. I do not desire that it shall be equally dif-‘ ficult for the most sincere friends of any Commission appointed in the future to follow it with these tremendous powers. If, at some future time, the Chairman of a Commission were to refuse to produce copies of evidence given before the Commission, to any party to the Commission’s labours, until that evidence had been corrected, I do not think any honorable member would fail to heartily support the Commission in the attitude that it took up. Why should any litigant have the right to get uncorrected copies of evidence from a Royal Commission in the future?
– The honorable member is now dealing with, a matter beyond the scope of this Bill.
– The position is apparently very difficult, and I shall have to give chapter and “verse for every criticism I pass. I find it more difficult to speak here than before my constituents. I thought I had a right, on the motion for the second reading of a Bill, to draw attention to its omissions, as well as to criticise its provisions. I thought that we had’ to deal with the broad, -general principlesassociated with the measure, and the point that I am discussing is that these powers- have never ‘been vested in any persons since the days of the French Revolution. Almost’ every one -of those in whom such power* were vested enriched themselves at the expense of the public toy whom they were given such authority. At the present time, please Heaven, we are not going to have a. repetition of that sort of thing; but I should like some guarantee that our Royal Commissions were going to be ‘better . appointed in the Suture. The -word . ©f ja Royal Commissioner should <be above . all’ question. That is ; a . general proposition which -ought to be (laid dowai. A ‘Commissioner should be appointed for some reason’ other than mere party ,;ieeling or party views. He ought to. be . an earnest inquirer into the truth. I remember how pleased I was when, on 2nd May last, I read a statement regarding the . practice ^relating to Royal Commissions in Australia - a practice which I understood at the time had been followed by the Royal Commission on the Sugar Industry. The practice of Royal Commissions in Australia was laid down by Sir John Gordon, the Chairman of the Royal Commission on the Sugar Industry,, when he said -
Whether it is the usual custom Here, or not-r- He was speaking in New South Wales at the time - that parties interested in the work of a Royal Commission can purchase from the reporters copies of their transcript- - ,
-Order ! The hon-; orable member is now going - beyond the scope of this Bill. I ask him to confine himself to the question before the. Chair, ,.
– I submit to you, with the utmost deference, Mr. Speaker,, that the question of the usual practice of Royal Commissions is very pertinent to this Bill. If you had heard the next sentence- ..
– The. honorable member is now trying to discuss something done in a Commission which is quite beyond the scope of this Bill.
– I do not think this . was done in a Commission. This is a newspaper report of an utterance by Sir John Gordon.
– The honorable member will be out of order in reading it.
– On a point, of order, Mr. Speaker, ‘ I submit that the Attorney-General, in moving the second reading of this Bill, referred over and over again to the Royal Commission on the sugar industry. You yourself know, sir, that the Bill has been framed in view of what has taken place in that Commission.
– What is the honorable member’s point of order?
– That the honorable member for Wentworth is entitled to refer to the Commission in question in order to illustrate anything relating to the principle of this Bill. The Bill is intended to meet difficulties that have arisen in and on that Commission. It is for no other purpose.
– If I allowed an honorable member to discuss something done by a Royal Commission other honorable members would desire’ to reply, and to discuss’, the merits as well as the work of. that Commission, so that the consideration of the Bill itself ‘would be lost sight of. That/.:cburse must not be pursued. I have allowed the honorable member for Wentworth 1 reasonable latitude - all the latitude he could reasonably expect - but he : seems to be ; specially desirous of getting* in some matter:’ That - he must not do. I ask him to confine his remarks to the question before’ the Chair.
– I ask your ruling, Mr. Speaker, on a point of order. As this Bill has been introduced in consequence of something that has happened already : in ‘Connexion with Royal Commissions, and is intended to meet apparent difficulties in- the la’w relating to Royal Commissions, will not an honorable member . be in order in referring to matters that ‘have arisen in connexion with Royal Commissions?-
– Rulings should _ not be asked on questions that have not arisen. It is impossible to determine whether certain remarks are within the scope of the Bill until they’ have actually been made.
– We are entitled to ask for guidance, Mr. Speaker?
– The honorable member is not entitled to ask a question of the- character he has put to me.
– If Mr. Justice Gordon’s opinion as to the usual custom of Royal Commissions is held by you, sir, to be absolutely, worthless and valueless, of course I must accept your ruling.
– The honorable member has no right to make that statement.
– That is all that I proposed to do.
– The honorable member is not entitled to suggest that it is to be understood from my ruling that a statement ma’de by sotne outside person is worthless.’
– Apparently I am getting into trouble over this matter. I wish to cite an opinion on the duties of Royal Commissions. We are dealing with a Bill to amend the Royal Commissions Act, but I feel that it would be easier if, whenever a. measure of this kind was introduced, I went to my constituents and-
– The honorable member is going beyond’ the measure.
– I shall have to go 500 or 600 miles to deliver a speech which 1 hoped to have the liberty to make in this chamber-.’’
– I regard the honorable member’s remark as a personal affront, and ask him to withdraw it.
– At your direction I have to withdraw it. Let us examine this proposal a shade further. The Bill’ is extraordinarily redundant in many directions, as though it were merely a political placard, permitting one side to voice its opinions, without reasons being heard from the other. Of what use is the provision against false swearing? Honorable members are aware that the charge of perjury can be brought against any person who commits the offence, either in a Court of justice or before a Royal Commission. Yet clause 6h provides that -
Any witness before a Royal Commission who knowingly gives false testimony . . . shall be guilty of an indictable offence.
The law now is that a person who tells a lie, when on his oath, is guilty of the offence of perjury. Why should a special offence be created in this way?
– Not every false oath is perjury.
– Is not every false statement on oath made before a Royal Commission perjury? Why should a provision like that which I have read be passed at the dictation of this Royal Commission to which those on this side are not allowed to refer? Very often a person is appointed to a Royal Commission almost as an act of kindness ; because all sorts of opportunities are given by such appointments. Can any honorable member tell me how many Royal Commissions are sitting at the present time?
– The honorable member is not discussing the measure.
– I wish to show how carelessly Royal Commissions are appointed, This carelessness is evidenced by the fact that honorable members do not know how many Royal Commissions are now in existence.
– The Liberal Government in South Australia have about nine going there.
– I suppose they are engaged in cleaning up the political stable. The recklessness with which Royal Commissions are sometimes appointed should make us careful as to the powers which we vest in them. Men who are to exercise powers greater than those of the High Court Bench should be at least themselves Judges. Probably not more than one, possibly two, of all the Judges in Australia would be unworthy of holding Royal Commissions. I am not at liberty under the Standing Orders of this House of free speech to refer to the matter, but if I were, and had Mr. Speaker’s permission, I could show how a Commission proved itself false regarding a matter of enormous public importance. The interpretation placed on our rules puts me into a position almost of impotence.
It is essential that we should not allow men to wield enormous powers and inflict heavy penalties unless we know who these men will be. Royal Commissions may be appointed solely for political purposes. A man might be given an appointment on the understanding that if he served his employers well he would have further opportunities to serve later in some other capa- city. What guarantee, then, have we that the powers given by the Bill will not be abused or prostituted to the private ambition of some person acting for the time being as an agent of the Government in power ? The personnel of existing Commissions should make us hesitate to intrust the wide powers of the Bill to all Commissions that may hereafter be appointed.
It would have been only common decency for the Government to have waited until the case now sub judice in Sydney had been dealt with before introducing this measure. It is held by some that the Words “ reasonable excuse” in the original Act cover unfairness, partiality, and perhaps corruptness in the members of the Royal Commission, but the Bill wipes out that interpretation. The meaning of the phrase is being argued before a magistrate in Sydney, and a verdict may be given at any time. Yet we have the Attorney-General telling that magistrate in so many words what is expected of him. This is a grave departure from the decent conduct of public business. Honorable members talk about reflections on a Royal Commission, but what about seeking to influence a Court of law !
I would welcome an opportunity to go into all the facts regarding a recent regrettable occurrence in Sydney. No one wishes to see Royal Commissions flouted. If a Commission is worth appointing, it should be obeyed. But we should be given an opportunity to go into the whole question of what occurred in Sydney. That would be better than dealing only with one side, and that the one which it suits the Government to deal with. Perhaps the Attorney-General will at some future date give us this opportunity. I understand that the Sydney newspapers are still full of the reports of the case.
– The Sugar Company is paying for them.
– That may be so; I am not in the confidence of the company. The Attorney-General apparently recognises that the case will be finished this week, and wishes to get in his blow first. He apparently fears that the decision of the magistrate will be unpleasant to those who appointed the Commission. That is the reason for the indecent haste with which the measure has been introduced. We should know all the facts at the earliest possible moment. We do not desire to be the only persons who are bound ; we claim the right to discuss the matter.
One clause in this Bill imposes a long term of imprisonment on any person who, practically, procures a false witness; but that is, at the present time, a punishable offence, and the provision is unnecessary. Are these clauses, in regard to procuring false witness, perjury, and so forth, reasonable, or are they deliberately and tautologicallly introduced in order to obscure the Bill’s dangerous incursions into the sphere of human liberty ? They can be introduced only to take the attention of honorable members and the country away from clauses which impose tremendous penalties on persons who, by writing or in speech, use words calculated to bring a Royal Commission “ into disrepute.” Why, sir, the truth itself might bring a Royal Commission “ into disrepute “ ! It has been decided by the High Court that even. Mr. Justice Higgins is not immune from public criticism ; and yet a Royal Commissioner is not only to be free from adverse comment, but to be the judge of his critic.
Sitting suspended from 6.30 to 7.45 p.m.
– Before I depart from the question of the desirability of including in the measure some provisions to guarantee the proper constitution of a Royal Commission, I should like to say that we must not consider the ideal, but existing things, in dealing with concrete facts. It cannot be denied that, as a general rule, persons serving on Royal Commissions have little capacity or fitness to exercise the enormous powers proposed in the Bill. I have heard it said of one Royal Commissioner, at any rate, that he had mishandled trust funds. Now, should we intrust these enormous powers in the hands of a man who, in his private capacity, has not hesitated to do such a thing? The penal powers given by the Bill are the widest and most farreaching I have ever seen in any Act of Parliament, considering that they do not give a man in all cases the right of fair trial.
If we are to have Royal Commissions intrusted with these astonishing powers, we should at least frame some rules in the Bill for their guidance as to how they shall conduct the business. We do not desire it to be said that a Commission will take one party to a trade dispute into its secret confidence, making its secret and confidential records patent to that party, while denying a similar concession to the other side. We do not desire to have it said that one party to a dispute can place its case before a Royal Commission in any way it likes, while the other party is denied a similar privilege. If we are to have this attempt on the part of the Attorney-General to clothe with powers more arbitrary than those enjoyed by any Court in the land persons whom the most sanguine honorable member opposite would not, I think, say were fitted to sit on any High Court bench - if such powers are given without any rules to properly regulate their conduct, there is going to be a most serious scandal. I do not say that there will be a judicial scandal, because, after all, the proceedings of a Royal Commission are not always judicial ; but we shall have a most serious scandal in connexion with the machinery of Parliament.
The Attorney-General made quite a point, in the opening of his speech, of the contention that, after all, in his reasoned judgment, the power to appoint a Royal Commission is inherent in the Governor-General, apart altogether from the Governor-General in Council. What an astonishing power to vest in one man ! We have always had occasion to be thankful for the high character of our Governors and Governors-General, but to vest in a man who is not responsible in this respect to the Australian Parliament, or directly to the Australian people, this power of wholesale inquiry under the penal provisions proposed, is a proposal which would have disgraced the history of Ireland fifty years ago. This Bill is bad from the point of view of the omission to provide for the proper choice of Royal Commissioners and the rules of Court of Royal Commissions.
After all, a Royal Commission is the ultimate weapon of Ministers of the
Crown - “ the Crown “ slips from the AttorneyGeneral’s tongue more glibly than ever it slipped from the tongue of a Tory in the days of the Star Chamber. It is the Parliament of Australia that ought to be supreme ; and if we intrust these enormous powers to nominees of the Crown, we shall be taking a very dangerous step. We know what such nominees are capable of, from what we have seen in Australia lately. We know what they are capable of so far as their judicial capacity is concerned - we realize this from what we have known of Royal Commissions appointed by Parliament for many years past. Yet, according to this Bill, a newspaper, by the mere recital of facts in reporting the proceedings of a Royal Commission, can be held to have used words calculated to bring the Commission into disrepute; in short, the press may be silenced and gagged.
– That is all that is wanted .
– The main desire, I dare say, is to prevent the public realizing what is going on ; and’ then Tammany is safe in the Commonwealth of Australia !
– For whom is the honorable member “ barracking “ - for the Sugar Company?
– The honorable member knows that that suggestion is false.
– What is the honorable member ‘ ‘ barracking “ for ?
– The fair rights of every man and every person in Australia.
– For the Sugar Company.
– How much does Mr. Speaker now object to the use of the words “Sugar Company”? That is the sort of “ mud “ that is flung at me across the chamber, and it comes from the sources from which we may expect it. When one is standing here asking that there shall be free criticism of what goes on in Australia, it is a little late for honorable members to fling taunts which have already . been proved to be false, and which are known to be false by the men who fling them.
We ought to have provision in the Bill to guarantee that every Royal Commission shall treat all persons before it in an exactly similar way.
– What Commission has not done that?
– Mr. Speaker would rule my reply out of order ; and the honorable member knows that quite well. . .
– The honorable member is making a statement, and I am asking him to prove it.
– Before dinner I asked for an opportunity to prove the statement, but it was not given me by the Chair. As I say, there should’ be some provision in the Bill to compel Royal Commissions to treat ‘all witnesses alike. I make this statement without’ any regard whatever, in its broader aspect, to the case freely traversed by the Attorney-General in introducing the Bill. I have no sympathy with any attempt to deny honest, fair, and open jurisdiction to any Royal Commission appointed by Parliament. But I do say that in granting these enormous powers now proposed to Commissions that have been appointed so carelessly, and, in some cases, so mischievously carefully, it becomes essential to lay down rules for their guidance. The liberties of the Australian public are worth a little more than the immediate political or party expediency of Ministers who have introduced this Bill. I regret exceedingly that the measure has been introduced at the present time, when a case in Sydney is sub judice. It would have been infinitely better, not -only from the point of view of taste, as put most eloquently by the honorable member for Angas, but on the higher ground of public interest, if the Government had hesitated before attempting to set one constituted Commission and Court of Inquiry against another constituted Court of Justice of this land. We ought not to take sides or express an opinion upon any question that is sub judice. Honorable members have used the opportunity in the introduction of this measure to take sides and throw ridicule upon a magistrate in New South Wales who, in my humble judgment, although I do not know him, has only done his level best to arrive at the facts.
– He is bullied by a lot of bullying lawyers, and has not the courage to say what he thinks.
– The Attorney-General laughed at him, and now another Labour member says he has not the courage fo say what he thinks. I venture to say that the Courts of New South Wales are sufficiently well manned, and the men in charge of them are of sufficiently high character, to justify us in believing that they will fearlessly do their duty whatever influences, public, political, or private, are brought to bear upon them from any source.
The Attorney-General ought carefully to consider what I have said with regard to omissions in this measure. He ought also to limit its provisions so that, at any rate, press criticism or press reporting, even of the actions of a Royal Commission, shall not be an offence merely because the statement of a truth offends the vanity or self-esteem of some of its members.
.- Most legal measures that come before this House are, as a rule, somewhat lacking in interest to members who do not belong to the legal profession, but to any one like himself, who has had the honour to serve on a Royal Commission, this Bill presents features of very special interest. The AttorneyGeneral, in introducing it, went back as far as the days of King John and Magna Charta for precedents, but whilst he is, perhaps, right as regards the period to be emphasized in connexion with a measure of this kind, he would require to go outside the British realms altogether to find a Court so constituted as this Court is proposed to be. We only require the addition of rack and thumbscrews, and an executioner, with a broad axe, standing behind the sacrosanct person who is to rule this Court to give it all the paraphernalia and power of the most infamous tribunal that has ever crossed the page of history. It appears to me very necessary, in view of the extraordinary powers that will be vested in the Chairman of this Court, that each unfortunate witness who is called to give evidence should have recited to him, for his own protection, all the various things that he must, and must not, do. We have here such a formidable list of offences that, when they are all recited to a witness, I can well believe that the unfortunate wretch will be reduced to such a state of fear and imbecility that he will give exactly the answers which, perhaps, this Court wishes to get from him, but which may not be altogether in the interests of justice or fair play. I am sure the measure requires considerable improvement. The AttorneyGeneral, as usual, invited members on this side of the House to come along with the necessary improvements for his Bill, but it appears to me that, in order to make it presentable, and bring it at all into accord with modern principles of equity and justice, it will have to be dealt with like the Highlander’s gun, when it had to be repaired - that is, it will require to have a new lock, stock, and barrel.
.- The question of Royal Commissions must be an important one to a House like this, because I think we have done our share in appointing them, and we should; therefore, be careful to see that we have a sufficient and adequate law relating to them.I am open to admit at once “that the original Act of 1902 does not do all that it should do with respect to these important bodies, but any one looking at- the Bill now before us must be struck with its very peculiar features. Why should it be so severe and drastic? What has happened in connexion with our Royal Commissions to cause such a violent change? You will find on the statute-book of any country scarcely anything so strong as are the clauses of this Bill with respect to penalties, designed to force from witnesses practically all they know on any subject. About the only matters that the chairman of a Royal Commission cannot compel a man to disclose now are secret processes that he may possess with respect to some manufacture or patent. We are told by the AttorneyGeneral himself that the urgent necessity for the measure is the trouble that has occurred in connexion with the Sugar Commission. May I point out to him that, notwithstanding the hitch in the proceedings of that body, it is not very likely that any similar case will arise for many years to come, and that there is no necessity, looking at the features of that matter so far as we can gather it from the papers, to rush into such panic legislation as this? Why are honorable members opposite, who on occasions deprecate severe punishment, so anxious to punish, in this cruel way, any one who offends against these provisions ? Royal Commissions are not always composed of people who can safely be intrusted with such enormous powers. They are often only lay members of the community, or members of this House, and it is rarely that we have a legally-trained mind at the head of their affairs. I am sure that the man who is trained to deal with evidence, if he is impartial and fair, is far more likely to treat a witness properly and to refrain from pressing matters unduly-
– It is generally when we have a legal man appointed that we get into trouble.
Mr.ATKINSON. - I think, taking the average, it will be found that my contention is more nearly correct than is that of the honorable member. The composition of these bodies must be closely looked at. It is not right suddenly to endow with such vast powers any scratch body of four or five members whom we may like to. appoint. If we are given such powers, we are, as human beings, pretty nearly sure to abuse them. It is not safe to give too much power to any one, because it is a failing of human nature to abuse it. The Attorney-General has not brought the measure in at the proper time. Why did he not wait until the Court in Sydney had dealt with and settled the matter which is delaying the proceedings of the Sugar Commission? It would have been quite time enough for us to legislate after that case was decided. We should be in a better position to gauge the matter fairly and decide what was really required, if we knew how the Court had settled the case. No attempt is made in this Bill to see that Royal Commissions are properly chosen. There is nothing to guarantee the safety of witnesses. A man has only to say something in criticism to bring a Royal Commission into disrepute, and he will be immediately liable.
– Why should he not be?
– The judge of whether a man is guilty of an offence in that regard or not is to be the chairman of the Commission himself.
– He is being given the same power as any other judge.
– The chairman of the Commission might be the least proper person to hold the position.
– Are not lay justices given the power in Court to deal with contempt?
– In our Courts of justice, it is as the honorable member for Gippsland says ; but we do not invest them with such powers as this Bill hands over to the chairman of a Royal Commission. The penalties are arresting in their magnitude. Where the original Act provides a penalty of £50, this Bill jumps up suddenly to £500. It is also provided that if anybody is guilty of a particular offence on separate days, he must pay £500 a day. That is going altogether too far, and displaying a spirit of vindictiveness that should not characterize this House. It shows that we have in the House honorable members who ought not to be intrusted with such powers over their fellow men as they would be able to exercise under the provisions of this measure if they became members of a Royal Commission. For the sake of the good name of Parliament, I hope that we shall have at least some substantial reduction in the penalties for which this Bill provides.
– -Oh !
– The honorable member would not laugh if he were a recalci trant witness before a Commission. I indorse the criticisms of this Bill, in which other members of the Oppositon have indulged. . The Bill will not bear inspection from any point of view, and if I had not learned that it is proposed to submit an amendment with the object of making a very necessary improvement in the Bill, and mitigating the possibility of abuses occurring under it, I should have felt it my duty to do so myself.
.- While this is essentially a Bill for the careful, consideration of the lawyers of the House, it is, nevertheless, one that should be discussed by every business man, inasmuch as it affects most closely and intimately the business mercantile and manufacturing interests of the community. The Bill endows certain persons who may from time to time be constituted a Royal Commission with drastic powers to interfere with the rights and the liberties of other persons in the community, and for that reason it is one of the utmost gravity. I have no desire to deal .with it in detail, but I may be allowed to refer to the fact that it is but an enlargement of an existing measure, the penalties under which it increases tenfold. Surely the Government are adopting an extreme course in proposing to invest in Royal Commissions such largely increased powers. A clause to which very serious attention should be given is that under which a Royal Commission is empowered to appoint a police officer or any other person to break into a house or other property in order to execute a warrant.
– Terrible !
– It means legalized housebreaking, and that, surely, is a terrible thing.
– It is already the law.
– Under the existing law the police are undoubtedly clothed with certain powers to execute warrants, but I do not know that there is any law under which a Royal Commission can appoint “ any person “ to break into the property of some other person in order to execute a warrant. The community will be startled to learn of this proposal to brush aside the old adage that an Englishman’s house is his castle. Under this Bill a man is to have no protection in his. own property. The proposed penalties for a second offence under this Bill will mean absolute ruination to an offending person.
– Why should he break the law ?
– If the law is a wise and salutary one, it ought to be obeyed ; but 1 venture to say that this will be regarded by many people as an unrighteous law, and that it will assist in displacing the present Government, which has hitched its waggon to a falling star. It is further provided in this Bill that -
A Royal Commission may inspect any documents, books, or writings produced before it, and may retain them for such reasonable period as it thinks fit, and may make copies of or take extracts from them.
That is a very dangerous power to confer, for a Royal Commission, unlike a Court of justice, is not hedged about with certain obligations and restrictions. No doubt while it exists a Royal Commission is subject to certain restrictions, but as soon as it has fulfilled its mission it becomes non-existent, and its members are simply as are other people. Under this Bill, however, members of a Commission, after it has been dissolved, may retain extracts from documents produced before the Commission itself, and may use them against innocent persons who were compelled to produce those documents at the behest of the Commission.
– The honorable member has an evil mind.
– Order !
– I have a mind that is bent on overcoming evil. I ask, Mr. Speaker, that the remark made by the honorable member be withdrawn.
– I ask the honorable member for Gwydir to withdraw the remark.
– I thought that, judging by what the honorable member had said, I had probably–
– The honorable member must withdraw the remark, without any qualification.
– I withdraw it.
– Under this Bill, in the absence of a prescribed scale, the Chairman of a Commission may authorize the payment of such sum by way of witnesses’ expenses as he may deem reasonable. That is a very dangerous power to bestow. If the men who from time to time act on Royal Commissions were all accustomed to weigh evidence, and to the control of judicial matters, no objection could be taken j but, as a rule, we have serving on Commissions men who do not possess either of those qualifications. To endow such men with power to determine the scale of fees in respect of witnesses’ expenses would be, in unfortunate circum stances, to endow them with a power that they were unfitted to exercise. The penalties fixed under this Bill, when compared with the penalties imposed under other Acts of this Legislature, are outrageously grotesque. A person who seeks to influence a witness or does anything in the way of bribery under this Bill may be imprisoned for five years.
– Does not the honorable member think that is a fair thing?
– I ask the honorable member to compare that penalty with the penalty for bribery under the Electoral Act. There is no matter of more importance to the country than is the electoral machinery by which the Parliament - the first Court of the land - is brought into existence.
– What is the penalty for bribery under the Electoral Act?
– I am not quite sure, but I think-
– Then what is the honorable member talking about?
– While I am not sure for the moment what is the exact penalty, I know that it is ridiculously small in comparison with that for which this Bill provides. It is also noteworthy that some persons are to be endowed with almost autocratic power. Woe betide the unfortunate individual who by word or deed says anything which the Chairman of a Commission before whom he is giving evidence considers to be offensive. It need not necessarily be an offence, but if the Chairman considers that it is, the alleged offender may be severely punished. In this, the High Court of Parliament, an honorable member who in the heat of debate makes a remark which is. an affront to Mr. Speaker commits an offence against the presiding, officer in the highest Court in the land, but the only penalty required of him is that he shall withdraw the words complained of, and, if the offence be sufficiently serious, that he shall apologize. That is all that is required in the highest Court in the land. But under this Bill the penalty for affronting the high and mighty person who may be selected to act as Chairman of a Royal Commission is a fine of £100, or three months’ imprisonment. Such a provision is outrageously grotesque, and the very grotesqueness of some of the features of this Bill will have such an effect on the public mind that I am sure it will be one of the things, that will minister to the undoing of the Government.
– I think the House will agree that it is necessary that a Royal Commission appointed to make an investigation for the purpose of providing Parliament with information, should be endowed with all the powers necessary for the prosecution of its inquiries; but there are. in this Bill provisions which, on mature consideration, honorable members generally will consider too drastic. In the ordinary affairs of life, the rights and liberties of the subject are safeguarded by the Courts of Law ; but it is proposed to confer on the chairmen of Royal Commissions power to interfere with the liberty of the subject, without appeal to the Courts. A Star Chamber procedure is set up which must be opposed to the feeling of honorable members as to what is right. To my mind, there is no reason why there should be conferred on a chairman more drastic powers in connexion with compelling the attendance of witnesses than in regard to other matters. One clause of the Bill might be used to prevent the criticism of a Commission, because a chairman might say that he regarded such criticism as calculated to bring the Commission into disrepute, and might, therefore, punish it as contempt. The honorable member for Gwydir has had considerable experience in connexion with Royal Commissions, and presented to the House a very voluminous report as the result of an inquiry in which he took part He knows that one of the most helpful agencies of investigation is the publicity given by newspaper reports. A Royal Commission is composed of individuals who are necessarily fallible, and it may happen that their conduct may be considered opposed to the best interests of the people. Why, under such circumstances, should the Commission be exempt from newspaper or other criticism, seeing that Parliament itself is not exempt? I hope that, in Committee, the Bill will be so amended that there will not rest upon us the odium of having given to the chairmen of Commissions powers that should be vested only in men possessing legal training and judicial responsibility. The members of a Royal Commission are often members of Parliament, and the chairman of such a body can hardly be expected to deal with questions in the judicial, impartial, and unbiased manner that would be expected of a Judge of the Supreme Court of a State. Such a man would not always rightly discern between relevant and irrelevant evidence.
– A chairman who was in the mood to call a witness a liar would not be very impartial.
– When a Commission is composed of members of opposite political parties, there must . often be differences of opinion, creating friction, and, under such circumstances, a witness might find himself in a very awkward position: For these; and other reasons that have been so ably advanced by the honorable members for Angas, Darling Downs, Parkes, and others, I hope that the objectionable fea: tures of the Bill will be removed without’ emasculating it, so that effect shall be given to the object which ‘we all have at heart,’ which is, I take it, the endowing of Royal Commissions with such powers as may be necessary to enable them to obtain information on which ‘ Parliament can safely base’ legislation for the good of the community.
– While it may be admitted that there is reason for amending the Royal Commissions Act, the Bill, in the wide’ powers which it gives, goes to extremes.. The honorable member for Parkes made’ plain some very important objections which require consideration. Particular care must1 be given to that provision which, by requiring a witness to produce everything that, he is “ required by the summons to pro-‘ duce,” widens the scope of inquiry much beyond the subject-matter of the Commis-‘ sion, and opens up a field whose limitations no one can define. I hope that the clause will be carefully scrutinized in Committee. I wish, also, to draw attention to the manner in which penalties are to be increased.1 For comparatively trivial offences the fine is to be increased from £50 to £500.’ None of these offences are of sufficient magnitude to justify that alteration.
– The sum mentioned is the maximum amount of the fine.
– Yes. But while recognising that Commissions should be clothed with all the powersnecessary to enable them to perform their, work, I am of opinion that it is possible to vest in them powers with which they should not be intrusted. I think that the execution of a warrant for the arrest of any person should be given only to police constables, who are trained for that work. The Bill, however, allows the chairman of a Commission to intrust the delivery of a warrant to any person, so that a warrant might be given to’ a person whose discretion could not be relied on, and who might be utterly unfitted, for the task of .delivering it. As to the penalty of imprisonment for bearing false testimony, I would point out that although two years is considered .a: heavy, penalty for perjury, the Bill proposes to make the offence punishable with imprisonment for five years. This seems to be going to an extreme, which is not likely to be called for in the event of evidence given before a Royal Commission. I admit that the penalty should be sufficiently high to be deterrent.
– What does the honorable member suggest ?
– I should think that the penalty usually awarded in ordinary legal tribunals ought to apply. The reason I think the maximum is too high is that it is not always a judicial person who is at the head of a Royal Commission, but more frequently a man who has no legal or judicial training, and who may be a strong partisan in regard to the matter of inquiry. One of the strongest objections, however, to the Bill is in the clause providing . an unreasonably severe punishment for the use of words calculated to bring a Royal Commission into disrepute. This, of course, will affect newspaper criticisms; and it may be that the acts of a Royal Commission are such as to call for the strongest condemnation on the part .of the press and public. As the Bill is at present, no matter how biased a Commission may be, or how deserving of censure or opprobrium it may be, any person who directs public attention to it in a condemnatory manner will be liable to a penalty of £100, or imprisonment for three months, although it may be that, in their criticism, they are doing a distinct public service. While admitting that there is room for amendment in the present law, the Bill, in my opinion, goes too far.
– I cannot help thinking that the AttorneyGeneral, in submitting this Bill, has in his mind the whole time a certain Royal Commission which has been sitting lately in Australia; indeed, he said his action had been largely determined by the proceedings in connexion with the Sugar Commission. The usual result is apparent in the Billbad cases make bad law. I am afraid the Attorney-General has not stopped to consider the far-reaching effects of this measure on other Royal Commissions, for it must be remembered- that every Royal Commission to which it will be applicable will not have the benefit pf a learned Judge to preside over it. I have no desire to make any invidious references ; but - it is no derogation to the members or chairmen of- the two or three Royal Commissions now proceeding to say that they have not the training of a Judge of a Supreme Court or the High Court. These powers are to be intrusted ordinarily, not to a Judge, but to an ordinary individual, or an ordinary member of Parliament. I intend to move an amendment, but I suppose I may speak before submitting it.
– Yes ; but the honorable member . will not have the right to speak again on the main question.
– What are the powers ofthe chairman of a Royal Commission ?
– He will have power to call for all sorts of papers and persons, and to elicit any information he thinks he ought to .have. Such inquiries do not necessarily relate to a man’s profession or calling or his ordinary life, but may relate merely to a matter of policy. The Sugar Commission ; for instance, relates chiefly to a matter of policy which has been discussed again and again in this Parliament ; and: we are inviting special information in order to enable us to shape our future legislationin regard to this industry. Then, again,* in regard to the .Fruit Commission, we are desirous to obtain full information about the fruit industry - its marketing, the position of the grower, the prevalence of pests, and so forth. A similar remark may be made of the Pearling Commission ; and yet, is such inquiries as these, we are givingpowers greater than those conferred on a Court of law. The powers are greater,’ for instance, than those given to the Judge of the Conciliation and Arbitration Court.
– That is not in accordancewith fact.
– Let us see. According to clause 6”of the Bill, a Royal Commission may inspect any documents, books,, or writings, and may retain them for suchreasonable period as it thinks fit, and make copies or take extracts from them. There is no such power in the Conciliation and’ Arbitration Court, Judge Higgins, a trained’ lawyer, being limited to matters which are material to the issue. According to theConciliation and Arbitration Act, no evidence relating to any trade secret, profits, or the financial position of any witness shall be disclosed, except with the consent of the- person affected; whereas, under the Bill, a man may be made to disclose his prices and profits, and everything relating to his trade, and the Commission may do what it likes with the information.
– That is quite right; the circumstances are different, one being an inquiry, and the other a judicial power.
– To an inferior or lay judge, greater powers are given than those intrusted to a Judge of the High Court. We must remember that, before a Royal Commission, a witness has no lawyer to protect or warn him from disclosing trade secrets, which he may very well do in his confusion. In a law Court, on the other hand, we put ourselves into the hands of a trained lawyer, who takes good care that nothing is elicited but what the law permits. Before the Sugar Commission, a man is not permitted to be represented by a lawyer ; whereas in a law Court the witnesses are entitled to all the protection which an adviser can give him. Only last Saturday the Fruit Commission took evidence in my own district, and all went well until one of the Commissioners put a question in a way that a witness did not understand. The Commissioner, not consciously, perhaps, said in a rather abrupt manner that the question was perfectly plain, and the result was, there was a little interchange. It took quite five minutes to restore things to their normal condition. All this occurred in the twinkling of an eye, and in the most innocent way. There is no protection whatever for witnesses in the Bill. Under this Bill that witness might, quite innocently, have found himself in serious trouble.
– I spoke of an amendment that will protect them.
– The only effectual protection that I can see is the retention of the words “ material to the issue.”
– There is protection given in the Act, and that protection is not removed.
– What protection is there?
– Section 7 provides that every witness summoned to attend shall have the same protection as that given to a witness in a case tried in the High Court.
– What protection is that?
– Whatever protection is given to a witness in the High Court.
– I take it that means that a witness shall have such pro tection as is contained within the compass of the law which is being interpreted by the Court. But this Bill practically directs the Chairman or Judge to elicit any information relating to a man’s business, and he may impound the books and documents, make extracts, and publish these broadcast to the world.
– He may be in the same business as the witness.
– That is so; he may be a competitor; and this seems altogether a wrong power to place in the hands of the Chairman of a Royal Commission. Then, the penalties provided are something startling. While the fines may be all right for a rich company, they will not be at all suitable in the case of an ordinary inquiry such as that into the fruit industry. My honorable friend has made a mistake in allowing his mind to be obsessed by this large company whose doings are now being inquired into, in framing these proposals to fit every inquiry pf the kind that may take place. The more I think over this matter the more it seems to me, as a layman, that every Royal Commission ought to have its own procedure. I suppose there are difficulties in doing that, but an Act like this, relating to the conduct of Royal Commissions, should lay down fundamental principles, and then the application of those principles should be varied in accordance with the Commission from time to time.
– Surely it is a fundamental principle of evidence that the evidence shall be material to the issue before the tribunal.
– Yes, but this is not quite a Law Court. These are mere Courts of inquiry. The evidence is given on oath, but not in the strictly legal sense. When you are merely inquiring into an industry, the inquiry should be conditioned by the circumstances of the industry itself.
– It is defined by the Letters Patent of the Commission.
– It may be, but, under these proposals, if a Royal Commission was inquiring into the business of a retail grocer, it would have power to require him to produce everything connected with his business, to take it from him, and do what it liked with it, even to the extent of publishing it all over the land. That seems to be a wrong attitude to take up.
– Is the honorable member taking exception to the inquiry, or to the publication of the evidence?
– To the publication of the evidence. I want to see even more protection given in the case of an ordinary Commission than is given in the case of the Arbitration Court. Under the Conciliation and Arbitration Act, the powers of the Judge in this matter are strictly limited, as will be seen by the following section -
All books, papers, and other documents produced in evidence before the Court may be inspected by the Court, and also by such of the parties as the Court allows, but the information obtained therefrom shall not be made public without the permission of the Court.
Provided that such books, papers, and documents relating to any trade secret, or to the profits or financial position, of any witness or party, shall not without his consent be inspected by any party.
– There is no such safeguard in this Bill.
– None whatever, and that is my great complaint. The Attorney-General is clothing an inferior Court with more arbitrary power than is given to the High Court of the country. No one can justify action of that kind at this time of .day. I believe we ought to grant the fullest possible powers to make all proper and reasonable inquiries into certain trades and businesses, but there ought to be proper safeguards, and, above all, the witnesses themselves should be safeguarded in a way which this Bill does not provide for. I believe every Act of the kind relating to evidence contains such safeguards, and the honorable member knows that it is the rule in a Law Court for the Judge to be handed up documents which only he can see and investigate, and regarding which he himself decides whether they shall be put in as evidence or not. Under these provisions, however, any member of a Commission may inquire for any particulars he wants, and make any use he likes of them after getting them.
– Does not the honorable member admit that desperate diseases require desperate remedies ?
– They do, and that is the fault of this Bill. The Government are framing a Bill which may fit one case, but which will not fit the hundred others that may occur. They are framing it to fit a particular case, instead of. laying down general principles applicable to all cases. They are framing it to fit a set of circumstances which have only recently transpired. That we ought never to do. It is our duty to frame, as far as we can, measures that will fit all cases which may from time to time arise. In this Bill, further, the Government are going to stifle any criticism of a Royal Commission. If honorable members will cast their minds back to the proceedings of the Sugar Commission alone, they will find that many things were published at that time against the will and wish of the Court.
– By whom were they published, and who paid for them ?
– That is not material. I believe the fact of their publication had an effect upon the mind of the Judge himself in more than one respect.
– They cost £200 a page.
– I do not know anything about that. I am not dealing now with the matter to which the honorable member refers.
– Order ! I ask the honorable member not to discuss that matter.
– I am only illustrating a principle of this Bill. The Judge one day lost his temper, and the next day apologized for doing so - a very manly action “on his part. I venture to say that the facts that led the Judge to make the apology were disclosed in the newspaper. I have not the details by me to refer to, but I think it will be found that the criticism of the case in a public way reminded the Judge of matters of which he had not thought before, and led him to readjust his attitude in relation to the particular witness concerned. No such thing could occur under this Bill. It shuts out comment of any kind. Remember always that a Royal Commission is for the purpose of public inquiry. Its very essence and its particular value consist in the greatest publicity being given to it. Take the case of the Fruit Commission as an illustrationLast week, about the only way in which thepeople could have got to know that there was a Roya; Commission was by an advertisement in the newspaper, and by press comments on it. There was not half enough publicity given to it even then, as the Chairman knows.. Consequently, the people were not ready, as they would have been had wider and better notice been given. In these matters of inquiry, why, then, should we be so ready te* stifle public criticism? Why should we object to the public letting daylight into the proceedings in the fullest possible way?
– There is nothing against that in this Bill.
– Yes, there is. It is provided that any person who wilfully insults or disturbs a Commission shall be guilty of. an offence. What is the disturbance of a Commission ?
– It is the disturbance in the face of the Court.
– Only last Saturday, at a meeting of the Fruit Commission, a gentleman rose and addressed the Court.
– That was after I had announced that the taking of evidence had closed.
– I do not think so. At any rate, the Commission was glad of the information ; but, in other circumstances, with a testy Judge, who had just been dealing with a recalcitrant witness, and who had lost his temper, a very different complexion might have been put upon that innocent action. When it is provided that no person shall disturb or interrupt the proceedings of a Royal Commission, or use any insulting language towards it–
– Do you think they should?
– Certainly not.
– It is not criticism or abuse outside ; it is abuse inside.
– I am talking about what occurs inside, and I have given an instance of how an innocent and useful interpolation might be regarded by a Commission as a disturbance, and render the person responsible for it liable to a fine of £100, or imprisonment for three months. Such penalT ties are monstrous. The Bill further provides that any person who, by writing or speech, uses words calculated to bring a Royal Commission into disrepute, shall be guilty of an offence. Would a comment on the Judge’s action the other day, such as was very properly indulged in by the press, be “* calculated to bring the Royal Commission into disrepute “ ?
– No; it has to be done before the Court.
– Oh, no ! It may be done a thousand miles away from the Court.
– It means writing addressed to the Commission.
– It does not mean that at all. It means any criticism outside.
– I do not agree with the honorable member.
– To come back to the Sugar Commission again, criticism of the Judge’s actions or comments, or criticism of the Attorney-General’s criticism of the company itself, might be calculated to bring the Commission into disrepute. The AttorneyGeneral made some comments regarding the Commission which were calculated to bring the whole thing into disrepute. He started to criticise it while it was sitting.
– The honorable member must not discuss that matter.
– I think I am entitled to use it as an illustration.
-The honorable member has already used’ it as an illustration. He is now going into details, which he must not da
– I have not used it. The Attorney-General himself, during that inquiry, made some comments which were calculated to bring the whole of the proceedings into disrepute. He started out calmly to consider the position of the company
– Order ! The honorable member is now going beyond the limits of the question before the Chair.
– I am surely entitled to furnish any evidence that will illustrate a principle of the Bill. If I am not, I do not know how I am to discuss the Bill. You. will not allow us to refer to the clauses, and surely we are entitled to refer to circumstances surrounding the Bill to find out whether its provisions are good or bad ?
– The honorable member will be quite in order in doing so, but he was going beyond that.
– I was pointing out that the Attorney-General himself had used language which, under this Bill, could have been designated as an effort to bring the whole proceedings into disrepute.
– I allowed the honorable member to do that, and then the honorable member proceeded to go further.
– You will allow me to make a statement, apparently, but not to furnish the proof of it However, let that pass. It seems to me to be more a matter for detailed consideration in Committee; but a protest ought to be made at this stage, in the interests of the liberties of the people, against this attempt to set up arbitrary powers which are not necessary, which have’ not been proved to be necessary, and without which all the ends of justice can be secured. It is time a protest was made against this setting up of arbitrary powers by men claiming to represent the masses of the people, who have suffered, perhaps, more than others from the exercise of such powers in the past.
– Did the honorable member say the “ masses of the people “ ?
– I did. Let the Honorable member consider for a moment the position of, say, a fruit-grower who has no legal knowledge and no special equipment to fit him to stand up against the president of a Royal Commission. Such a man, when called upon to give evidence, may sometimes be made to answer almost any question put to him. Under this Bill there is no protection for such a witness, and the chances are that he might give away all his secrets, and his private business into the bargain. Let honorable members opposite divest their minds of the idea that this Bill is to apply only to the Sugar Commission. Let them remember that it is to be made applicable to every individual in the community, no matter what his circumstances may be, and they will see at once what the exercise pf these powers means. The powers which this Bill confers on Royal Commissions are infinitely greater than are those exercisable to-day in a Court of law, where trained lawyers may protect their clients. They are going to be exercised by a body of men who are making inquiries a° to policy only, and to relate to men called upon to give evidence, and having no such protection as I have indicated. If honorable members opposite bear that fact in mind, they will see where we are landing ourselves. They will recognise then that a Bill that may fit some circumstances will be entirely inappropriate to meet the circumstances of the Fruit Commission, the Pearling Commission, and the other inquiries that we make from time to time, in order to enable us to frame our policy in this Parliament. For all the objects which the Attorney-General seeks to secure with regard to special inquiries, I think that he ought to have adequate power. I am not opposed to giving him adequate powers, but I am opposed to creating these powers to be exercised under conditions that are totally different, and to which they will be totally inapplicable. It seems to me that, instead of proceeding by Bill in this way, the Attorney-General might have proposed to amend the powers already possessed in such a way as would make them elastic, and would enable variations to be made to meet the different conditions that relate to inquiry by Royal Commission. We have no right to put these powers into the hands of untrained men who are out, it may be, for purely political purposes. Remember that our Royal Commissions are not Law Courts, and do not inquire into matters judicially. Every member of every Royal Commission will be able to exercise these powers, and there will be no protection for the witnesses. There are to-day serving on Royal Commissions men whose sole aim and object is to make inquiries to ascertain if a case can be made out for some purpose of public policy.
– Would the honorable member make this Bill apply only to the Sugar Commission?
– I would not make it apply to any Commission until it had been very radically altered. The whole case ought to be reconsidered. I do not think the honorable member for Maribyrnong would like to see the provisions of this Bill apply to a man engaged, for instance, in producing butter. He knows how a farmer may act when he goes before a Royal Commission, so to speak, “ on his own.” He knows what a Royal Commission might elicit from a man in such circumstances.
– If a witness speaks the truth, he has nothing to fear.
– It is a matter, not of speaking the truth and having nothing to fear, but of giving away to the public one’s whole business, and suffering in consequence. Is that of no account to a man? It is all very well for honorable members, who have been accustomed to stand up to each other and to public officials, to propose to grant these powers; but it is quite another matter to extend their application to men in the far interior, who are not accustomed to public examinations, and who may have no one to protect them when giving evidence.
– Any one would think that every one in the world but the honorable member is a fool.
– I do not think that all people are fools, but I do think that there are one or two about in this chamber. I move as an amendment -
That all the words after “ That,” line 1, be left out, with a view to insert in lieu thereof the words “ while prepared to further endow Royal Commissions, according to the needs of each inquiry, with full authority to investigate all matters of public importance, this House protests, against the excessive and unprecedented powers proposed to be conferred upon the President or Chairman of a Commission, against the absence of adequate protection to witnesses, and against improper attempts to stifle fair verbal or written comment.
.- I am one of those who have always held that it is necessary to give Royal Commissions full and complete power to obtain from witnesses appearing before them all necessary and material information; but this Bill goes a great deal further than that. It strikes out the provision in the original Act under which the inquiry of a Commission is limited to the obtaining of evidence that is material to the issue being investigated. We are asked to place in the hands of Royal Commissions power to inquire into the most minute details of the business of any manufacturer, producer, or mercantile man; and as such inquiries are almost universally open to the press, the whole of such evidence may be published abroad. There have been occasions -when manufacturers and others have been up against bad times, and have struggled for years honestly and fairly to try to keep their heads above water. If the position of men so situated were published to the world at a critical juncture in their business history, their industry would collapse about their ears. The Government are proposing, under this Bill, to take away a very necessary ‘ safeguard. Save in very rare cases, the powers now possessed by Royal Commissions are sufficient to enable them to secure all the evidence they require. If Royal Commissions are to be empowered to publish broadcast the whole details of a man’s industry - the whole secrets of his trade - a deadly injury will be done to individuals without assisting the real object of an inquiry.
– That is what the poor fellows who control the trusts say.
– I am not here to advocate the claims of the trusts. I am prepared to allow the Bill to go as far as the House thinks it ought reasonably to go iri order to enable material evidence to be secured. But the Government now propose to take away the only remaining safeguard, so that any member of a Royal Commission may publish to the world the financial position and the inner workings of the business of any witness appearing before that Commission. That is undoubtedly going a great deal too far. I know that we are legislating now to meet a particular case. I have put up my little fight against the Colonial Sugar Refining Company ever since I came into this House ; but the whole trouble that arose between Mr. Knox and the Chairman of the -Royal Commission on the sugar industry was due to the fault of the Chairman himself. I make that statement deliberately. Practically every other representative man who had appeared before the Commission was asked to make a statement. I had the honour to be selected by the Fruit-Growers Conference, which met at Brisbane, to give evidence before the Sugar Commission, and when I appeared before it the Chairman asked me if I would make a statement. I think that he asked practically every other representative man who appeared before the Commission to do so. He certainly encouraged them to do so ; but the only witness who asked to be allowed to make a statement was refused permission. If Royal Commissions are going to be invested with these farreaching powers, I hope the Government will be more careful in selecting the members of Commissions than they were in selecting the members of the Sugar Commission. In legislating as we are in this instance to meet an individual case, we may pass legislation that may be exceedingly dangerous. A witness who refuses to give material evidence before a Commission ought to be compelled to do so; but this Bill requires a witness to answer any question that may be put to him, whether material or not. We may have on a Commission men who are perfectly fair, but whose judgment is not well balanced, and they may ask questions that are not material to the issue, and the answering of which might spell ruin for the witness. This Bill will enable the members of a Royal Commission to compel a witness, under threat of being committed to prison to answer any question, material or otherwise, and such a power, I am convinced, will be speedily abused. If it is necessary to give special powers to the Sugar Commission, I prefer doing that to clothing all Commissions with the powers provided for in the Bill. The trouble which has arisen in connexion with the Sugar Commission’s inquiry is due to the ill-advised action of the Chairman.
– The honorable mem- ‘ ber must not criticise the Commission.
– I was examined before the Commission for a whole day, and I say that the Chairman is the worst I have ever met. The House should pause before passing legislation of this sweeping character. If the Bill be passed as it stands, it will not be long before some of its provisions are applied to the full, a procedure which none of us desires to see. The proceedings of Commissions are generally open to the press, and by compelling men to disclose every detail of their personal affairs and businesses, great injustice may be done without the furtherance of any legitimate end. I hope that in Committee the Attorney-General will propose amendments which will confine the powers of Commissions to the obtaining of evidence material to their investigations.
– We have to congratulate ourselves that a Bill which when introduced was regarded by the Opposition as appalling has now become acceptable, it being generally admitted that a measure of this kind is needed. Only the1 honorable members Tor Angas and Darling Downs ‘have criticised the Bill itself, other speakers being content to declaim against imaginary provisions. All are in favour of an amendment of the law, but they cannot agree as to the extent they would go. The honorable member for Franklin would empower Commissions to inquire into all sorts of matters of public interest, and so would the honorable member for Parramatta ; but the penalties are too severe, and the scope of an inquiry should be limited so that a man’s private interests should riot be inquired into. The honorable member for Ballarat would favour the Bill so long as it was to be applied only to special cases, and the honorable member for Lang believes in penalties more severe than those of the Act, but less severe than those of the Bill. The speech of the honorable member for Franklin will serve to reply to as well” as any other. He Opposed the Bill on the ground that it would enable questions to be asked which cannot now be asked. He thinks it monstrous that a man should be questioned in regard to every detail of his business. As a matter of fact, the Bill does not enlarge a Commission’s powers in this matter in the least degree. It does not enable it to ask more questions, or to call for the production of more books and papers than it can now. The only difference is that, whereas now the onus of proving that questions asked and the production of documents called for are material is on the Crown, the Bill puts it on the witness. A Chairman will still be limited by the scope of his Commission, and if he asks a question outside it he must accept the consequences. The honorable member for Parkes spoke of all sorts of things as likely to happen should the Bill pass, not really understanding its provisions. Royal Commissions have always had power to ask any questions they please - this has been laid down by the Chief Justice of the High Court most clearly ; a Commission which asks impertinent or unfair questions must face the censure of Parliament, and that of all decent and honorable men.
The drastic penalties about which we have heard so much fall under three heads, being for refusal to attend, to answer questions, or to produce documents ; for perjury, fraud, and interfering with witnesses; and for contempt of Court. The penalties for offences of either of the first two classes can be imposed only by the ordinary Courts of law. Much of the debate has been therefore mere hot air. The Chairman of a Commission cannot punish any one for refusing to attend, or to answer a question. All he can do is to send a warrant to apprehend any one who declines to attend. So much for that.
Again, will any one suggest that the penalties for perjury and fraud are too severe, or that £500 as a maximum fine is too big a penalty for the offence of declining to recognise the Commission by attending when summoned as a witness? It must be remembered that the Court can impose any lower penalty, and may not fine a recalcitrant witness more than a shilling, or even a farthing. If, after having been fined by a Court of law, a witness still declines to attend or to answer a question, is a maximum fine of ^1,000 too great a penalty? So much for the drastic penalties. The only offences in regard to which the Commission has power to impose penalties come under the heading of contempt of Court. Many honorable members have served on Commissions, and know what witnesses are. When I was Chairman of the Royal Commission on Navigation, a gentleman of high standing in the community, representing big commercial interests in Sydney, did us the honour to appear, and lectured me and every member of the Commission to his heart’s content. He left nothing unsaid about the Commission that I could have supplied. I asked the members of the Commission what I should do, and they said that if I considered myself good enough I could throw him downstairs. Is the Chairman of a Royal Commission to be put in the position of having to hurl persons downstairs ? ‘ Under the Bill, if the Chairman is a Justice of the High Court, or of a Supreme Court, or a Judge of any District or County Court, he may commit for contempt, but no other Chairman may do so. It has been argued that if this provision of the Bill applied only to Commissions whose Chairman was a Judge, little could be said against it, and I say now that it is in that case alone that it does apply.
A great deal has been said about the class of men appointed to Commissions. Royal Commissions should be appointed only when the public interest demands it, and their members should be persons of repute and standing. We must assume that such bodies will carry out their duties fairly, and to the best of their abilities.
Let me now refer to some opinions bearing directly on the provisions of this Bill that have evoked most criticism. The honorable member for Darling Downs, when AttorneyGeneral in the Deakin Government, introduced a Bill to compel witnesses to attend and answer questions before Select Committees of this Parliament. That measure provides, among other things, that any witness who does not attend when summoned may be arrested on the warrant of Mr. Speaker. Any witness who has been apprehended on a warrant and escapes is liable to two years’ imprisonment; a witness who fails to appear without reasonable excuse, the onus of proof lying on him, is liable to two years’ imprisonment ; and a similar punishment awaits the witness who refuses to answer questions or produce any document required. This does not mean questions or documents within the scope of the inquiry, but any questions or documents. And it does not mean any witness before Parliament itself, but also any witness before an ordinary Select Committee of Parliament. When the honorable member introduced that Bill, he met with exactly the same kind of criticism we have had this evening; and to show how unerringly those gentlemen run in a groove, and how, if we leave them alone, they are phonographic enough to repeat exactly what they have said before, I shall read one or two extracts from volume 46 of Hansard, containing the report of the debate on that measure. I shall also show, I think, how a change of locality, from this side of the House to the other, may produce a change of opinion: When the Bill was introduced, the honorable member for Wentworth, referring to clause 14, which dealt with a witness who refused, without just cause, to answer any questions, said -
This is a very drastic provision. If the Committee were guided by the ordinary principle of procedure that obtained in a Court of law there could be no objection to a course of this character.
That is precisely what he said this evening, and what every other honorable member opposite has said. The honorable member went on, and, as usual, he took a good while, and finally moved -
That after the word “ question,” line 2, the words “pertinent to the issue involved” be inserted.
To that the honorable member for Darling Downs said -
But the general function of a Select Committee is to ascertain the truth. I am willing to agree to the insertion of the words contained in the Queensland Criminal Code, section 58 -
Very ominous reference that ! - which reads, “ Any person who being present before either House of Parliament, or before a Committee of either House, authorized to summon witnesses refuses to answer any lawful and relevant question, is guilty of a misdemeanour, and is liable to imprisonment for two years.”
The honorable member for Parkes interjected -
Where is the urgency for the Bill?
To this the honorable member for Angas replied -
I see none ; because, as I have said before, we possess all the powers of the House of Commons under the Imperial Act.
But the honorable member for Darling Downs said -
I presume that the honorable member is thinking of a case in which a doctor has obtained certain information as the result of the confidence reposed in him by a patient. But my point is that it would be absolutely futile to provide a small penalty if we wish Select Committees to get at the truth.
The honorable member for Parkes interjected -
What imprisonment does the Attorney-General suggest as an alternative?
The honorable member for Darling Downs replied -
I suggest that for the first offence a witness shall be liable to a fine of £50, and for the second offence to a term of imprisonment.
The honorable member for Parkes asked-
For refusing to answer the same question ?
The honorable member for Darling Downs’ replied -
Then the honorable member for Grampians said -
He may have just reasons for refusing to answer.
To this the honorable member for Darling Downs replied -
Select Committees are not unreasonable. I have served on several of them, and I know that unfair questions are never asked. Indeed, questions which a witness refuses to answer will never be pressed unless it is necessary to press them in order to safeguard the public interests.
This very evening we had a dissertation from the honorable member for Parramatta on the frailty of Royal Commissions. He told us that if a Judge always presided matters would be different ; and the honorable member for Franklin spoke of the members of the Pearling, Fruit, and other Commissions as “ well-meaning “ - about the most damnable thing you can say, without qualification, of any man - but as no doubt perfectly unacquainted with what they were doing. Yet we have the honorable member for Darling Downs, in introducing a Bill with much more drastic provisions, stating that on Select Committees there are always reasonable men, who never press improper questions. The Bill was introduced by the honorable member to compel people to give evidence, not when protected by lawyers, or when they were before a Royal Commission, but both when they were before the majesty of Parliament and before a mere Select Committee composed of members of the House. Whatever their offence, two years’ imprisonment stared them in the face.
So much for the criticism of my honorable friend against the drastic provisions of this Bill. The only respect in which this Bill is more drastic than the Act is in the increases of the maximum penalties under the proposed new sections 5 and 6. The scope of the Act, or the scope of the inquiry is not increased. When honorable members talk about this “ drastic “ Bill, and the “ appalling penalties,” I ask them to put their finger on the increased powers of a Royal Commission. When they say that striking out the words “ material to the subject-matter “ increases the powers, I do not agree with them ; all the amendment does is to throw the onus where it ought to be, on the man who declines to produce documents. So much for the scope of the inquiry.
There are, it is true, heavy penalties for subsequent convictions, and so there ought to be ; but for a first conviction there is nothing to compel a magistrate or Judge to impose more than a nominal penalty. It is admitted on all hands that we ought to have power to make inquiries ; and it is not necessary to emphasize the well-known fact that we cannot make the inquiries under the present law. It is of no use for the honorable member for Angas to say that we ought to wait, because, possibly, a decision of a magistrate will show that the Act is effective. We have waited; and how much longer does he say the country ought to wait? The honorable member for Parramatta has said that I am obsessed by the fact that we are trying to get information from a great corporation. I am not obsessed, but I recognise the fact, and also that great corporations are the order of the day. To those gentlemen who speak about industrial unrest, I say emphatically that if there is one cause more than another it is the existence of those great corporations.
– The honorable member must not go into that question.
– Very well, sir.’ It is. admitted that we ought to make inquiries, and yet honorable members object to the only method by which these can successfully be made.
I listened very carefully to some of the suggestions made by the honorable member for Darling Downs, and the honorable member for Angas ; and there are two or three which I think ought to be considered, one being connected with the maximum penalty. Under proposed section 6e, the maximum penalty for subsequent offences is ^1,000, but it is proposed to amend the clause so that this maximum can only be inflicted when the subsequent conviction results from a prosecution instituted by the Attorney-General.
Although I do not admit that clause 8 has the meaning the honorable member for Angas thinks, I am prepared to insert a proviso to the effect that the provision shall not be construed to authorize the application of the measure to proceedings in respect of things done before the commencement of the Bill.
– I must ask the honorable member not to go into details.
– There is only one more point. Something has been said about there being no protection for witnesses ; but section 7 of the Act remains, and it affords ample protection, providing, as it does, that every witness shall have the same protection as that afforded to a witness in a case tried in the High Court. We propose to give a further protection by providing that evidence given before a Royal Commission shall not be used against a witness in a civil or criminal proceeding. The honorable member for Parramatta contended that the measure will stifle criticism of a Royal Commission, and he quoted from the Conciliation and Arbitration Act. I also shall quote from that Act, section 83, which is as follows -
No person shall wilfully insult or disturb the Court, or interrupt the proceedings of the Court, or use any insulting language towards the Court, or by writing or speech use words calculated to improperly influence the Court or any assessor or any witness before the Court or to bring the Court into disrepute, or be guilty in any manner of any wilful contempt of the Court.
Penalty : One hundred pounds.
We have simply taken that section, and put it into the Bill now under discussion.
– That applies only to the ordinary offence of contempt. There is no special offence created.
– The honorable member, perhaps, did not hear the honorable member for Parramatta’s criticism. He said this provision went beyond any protection given to an ordinary Court. I am quoting from the Arbitration Act.
– I amended that section myself .
– Shortly, the criticism directed against this measure amounts to this : that it extends the powers of Commissions Tn an unprecedented fashion. It does not extend them at all, so far as the scope of the inquiry is concerned. It is also said that the penalties are unprecedented. The only thing that is unprecedented, if it may be termed so, is the increase of the penalty from ^50 to ,£500 for refusing to attend or to answer questions, but that does not compel the magistrate or the Judge to impose the maximum penalty. He will impose whatever penalty he pleases, and if he likes he can impose the purely nominal penalty of is. It is said, too, that the witness will have no protection, but will be compelled to produce books and documents that are not material to the inquiry. There is nothing in this Bill that enlarges the scope of the Commission in this respect. All that it does is to throw on the witness the onus of proving that the document called for, or the question put, is not material to the in quiry. Generally, the attack upon the Bill has failed. Honorable members opposite, well knowing the necessity for amending the law, are all endeavouring to safeguard themselves by saying that they are quite willing to give a Royal Commission sufficient powers, but are against this Bill. There is nothing strange in their attitude, and if I were permitted I could prove it, but I shall simply refer to it, and leave it at that. I venture to say that the people of this country will be perfectly satisfied with the introduction of this measure, with its passage, and with its operations. They are highly dissatisfied and disgusted at the arrest of the inquiry at present in the hands of the Sugar Commission. We ought to have the report of that Commission. I believe this Bill will clothe Royal Commissions with sufficient power to elicit the facts. I do not believe that they will attempt to abuse any powers. If they do abuse them, and act unlawfully, they will be liable to any punishment that the law provides. If they act unfairly, they will be subject to the criticism and contempt of every decent and honorable man in the community.
.- I think that the Attorney-General himself has supplied sufficient evidence to show that the honorable member for Parramatta was quite justified in taking the action he did. The honorable member complained, in the first place, that no adequate protection was given in the Bill to witnesses. The AttorneyGeneral, in effect, said, “ That is so, and in order to give adequate protection to the witness, if he is going to be badgered with these questions, we will not allow that evidence to be used in criminal proceedings against him.” That is the first point the honorable member scored. In the next place, the excessive penalties were referred to, and it was pointed out how they accumulated, and the dangers which were involved in them. The Attorney-General then turned round and said, “ Yes, I admit that.”
– I do not admit it; it is not true.
– Then he does not admit it, but he says, “ When I come to deal with sub-clause 6e I will see that the ‘AttorneyGeneral is the person who takes the proceedings.” That is the next point gained. The third point raised by the honorable member was that this Bill was unprecedented. On the face of it, it seemed to apply retrospectively. That was the point raised by the honorable member for Angas, and the Attorney-General now very properly says, “ I will see that it does not apply to acts done before the commencement of the measure.”
– I do not admit that an amendment is necessary in either case, but I told the honorable member for Angas, when he was on his feet, that if he thought it was required in that instance I would make the matter sure.
– It is advisable that these amendments should be made, and if the honorable member for Parramatta can point only to those three facts, he has justi”fied his action in moving in the matter.
– Where I thought the honorable member for Parramatta was right, I said so.
– I am applauding the Attorney-General for his action, which is in the public interest, but how much more in the public interest was the honorable ; member _ for Parramatta acting when he put his views strongly by way of protest? The honorable member for Parramatta says, in effect, in his amendment : “ I am quite willing to give all the powers necessary for Royal Commissions. I desire that when they are making their inquiries they shall have full and complete power to investigate all those matters which are necessary to fulfil the terms of their Com- mission, and so enable Parliament to be furnished with all the information required -to guide it.” The Attorney-General, in reply . to that, said, “ The other day a Parliamentary Witnesses Bill was brought in with somewhat similar provisions.” The Attorney-General forgets the origin of that Bill. It originated in the Senate, and from the fact that this Parliament has never yet defined its powers and privileges. At present our privileges are simply declared by the Constitution to be those possessed by the House of Commons of the United Kingdom, and its members and Committees at the time of the establishment of the Commonwealth. The honorable member for Bendigo was Chairman of a Committee which reported on the question of privileges, and the general opinion of the House at the time was that the sooner it stated in clear and decided legislative form what its privileges were the better it would be for the public of Australia, as nobody knew exactly what our powers were. At present this House possesses the same power as the British House of Commons possesses to send for a witness under warrant. My’ recollection is that in the House of Com mons the matter is reported to the Speaker, and the Speaker issues the warrant for the production of a witness to give evidence before a Select Committee. So far as penalties are concerned, it should be remembered that a Select Committee is part of the House itself ; its privileges are the privileges of Parliament, which is the highest institution in the country. A Royal Commission has not the same status as the Parliament of the Commonwealth. The Parliament is quite a different institution ; it represents directly the sovereignty of the Australian people, and a Royal Commission does not do that at all. A Royal Commission is, in some cases, simply a subsidiary body appointed as an agency to assist the sovereign legislative body of Australia to fulfil its proper functions and duties.
– It has the power to ask the necessary questions, which is quite as rough on the ordinary citizen.
– Not at all. A Select Committee of the House is responsible to the House for the exercise of its powers. It always has this House standing over it, and its appointment can be rescinded by the House. We on this side are quite prepared to give Royal Commissions all the necessary powers of investigation, but, as the honorable member for Parramatta pointed out, _the nature of Commissions varies exceedingly. We may have a minor Commission inquiring into a departmental matter. A single individual may be empowered to act as Commissioner, but, on the other hand, we may have a great and important public matter, vital to the well-being of the nation, investigated by a Royal Commission consisting of the Chief Justice of the High Court of Australia as President, with two or three other men of almost equal standing as members. We may desire to give that body the greatest possible powers, in the belief that they could safely be wielded by men accustomed to weigh and sift evidence, and to consider the exact equalities of justice. I say that, under those circumstances, not a member on this side of the House would refuse to assist the Government in passing a statute which would clothe such a competent authority with all the strong powers requisite for performing the functions of a Royal Commission. But here it is proposed to give to smaller Commissions all the powers which should only be given to a Commission of the most important nature. The honorable member for Parramatta bore in mind the difference between the rules of a Court of justice and those which should apply to a Royal Commission. He had regard to the fact that the Government are proposing to invest the Chairman of a Royal Commission with all those powers of imposing penalties which are necessary in the case of a Court of justice. But look at the distinction between the two bodies. A Royal Commission is appointed to inquire into matters affecting the public welfare. Its duties may be to investigate trade and commerce, or the circumstances of particular industries, according to the requirements of the case. But a Court of justice may have to inquire into matters affecting a man’s life or liberty. It may have to inquire into an issue affecting a distinction between public rights and private rights. It may have to determine issues with the aid of a jury. Its decisions have to be given as quickly as the necessities of the case may permit. When a case is once decided, it is a res judicata. It necessarily follows that you must give great powers to a Court in order to enable it to preserve the administration of justice. But the circumstances of a Royal Commission are entirely different. A Royal Commission day be appointed to inquire into so small a matter as the design of a postage stamp.
– The right of the public to inquire into matters affecting the public interest is superior to everything.
– I admit that it is most important that certain matters should be inquired into; but I am pointing out the distinction between the position of a Court of justice and that of a Royal Commission, and why it is that the possession of the power to inflict pains and penalties is necessary to preserve the authority of a Court of justice. Moreover, a Court of justice has to decide a case brought before it within the shortest possible time. Witnesses are called, counsel are heard, judgment is given, and the matter is concluded. But that is not the procedure of a Royal Commission. We have at present in the Commonwealth a Royal Commission inquiring into the fruit industry. It inquires into a particular aspect of the question this week. Three or four weeks hence it inquires about something else. It may take two or three months, or even a year or two, to complete its investigations. It has ample time to inquire into the facts which are relevant. Its inquiries may affect every industry in Aus tralia. But is it necessary that a Commission like that should have at its command all .the pains and penalties conferred by this Bill? It makes a report, but decides no question of liberty or property. That was the point of view of the honorable member for Parramatta. Let us take these unprecedented powers, and consider them in their order. First, the honorable member for Parramatta asks the House to protest against the unprecedented powers proposed to be conferred upon the President or Chairman of a Royal Commission. Can the AttorneyGeneral point to any other piece of legislation as drastic as is proposed here in any one of the self-governing Dominions of the Empire? Let us turn to the Mother Country. Where has there been a nation in the history of the world which has had such experience of the working of constitutional machinery, or which Kas conducted investigations into so many great problems having such vast ramifications as Great Britain has done?
– Can the honorable member point to one Parliamentary Witnesses Bill like this which I hold in my hand?
– I am dealing with Royal Commissions at present. What do we find in Great Britain ? When they want to make investigations of a particular kind, extraordinary powers are conferred by a specific Act of Parliament. Even then powers so extreme as these are not given. Therefore, the honorable member for Parramatta is correct in saying that this procedure is unprecedented, having regard to England. Then turn to Canada. What do we find there? In the Canadian Act there are no such great powers as are sought to be conferred here. Canada divides Commissions into two classes. There are, first of all, public inquiries, like our inquiry into the sugar industry ; and, secondly, they have departmental inquiries, relating to the conduct of officials. It is only in the latter restricted area that we find the more drastic provisions. I turn to New South Wales; but I have not been able to discover that any Royal Commissions Act exists there at all.
– There is a very mild one, passed in 1907.
– Are the penalties as drastic as here proposed?
– Nothing like so severe.
– The Attorney-General said that this Bill is based upon the Official
Inquiries Offences Act of 1910 of Queensland.
– The penalties are.
– That Act provides that any person who is served with a summons to attend a Commission, and who fails without a reasonable excuse to attend, shall incur a penalty not exceeding £20. Yet the Attor2ieyGeneral says that he has taken an example from Queensland ! Another case provided for in that Act is that if any person appearing as a witness before a Commission refuses to be sworn, or to make an affirmation touching the subject-matter of the inquiry, he is liable, on summary conviction, to a penalty not exceeding , £20. The penalties imposed in the Queensland code dealing with perjury and similarly grave offences relate to judicial inquiries. Then, again, if we look at the New Zealand Act of 1908, we find that it provides that if a person who, after being duly summoned to attend before a Commission, or to produce any books or papers, fails to appear, or refuses to be sworn, he shall incur a penalty not exceeding £20. I do not think that there is any penalty dealing with giving false evidence in that Act.
– Is there any penalty of imprisonment in that measure?
– I do not think so. It is a peculiar thing that in New Zealand, where they give these powers to impose penalties, they define what the powers of a Royal Commission are. The Act empowers the Government to appoint any person to be a Commission to inquire into and report upon four different subjects. They are, first, any question arising out of the administration of the Government ; secondly, the working of an existing law ; thirdly, regarding the necessity or expediency of any proposed legislation ; or, fourthly, concerning the conduct of any officer in the Public Service. There is no power under that Act for a Royal Commission to go out and investigate private affairs, and if a man concerned in private affairs refused to give evidence he would not incur a penalty of , £500 as is here proposed. So that the honorable member for Parramatta could point out that this is an utterly unprecedented piece of legislation as far as New Zealand example goes. The honorable member also’ urges that this House should protest against the absence of adequate protection to witnesses. I find that in the Queensland Act’ the word “ materia] “ is used. When the President of a Commission issues a summons to produce books or documents, they must be “material”to1 the subject-matter of the inquiry. The Attorney-General, though he appealed to the Queensland Act, leaves out of his proposed legislation that word “ material.” He would be well advised to insert the word in this Bill. If the word is omitted, it must be omitted for a purpose. The Attorney-General says that he does not desire to widen the powers of Commissions in this regard. The scope of a Commission is defined. That is dear. Then, under this Bill, power is given to require a witness to produce documents, books, and papers. If it is desired that the documents, books, and papers to be produced “shall be only those that are material to the inquiry, why not keep in the words to which I have referred? If the object of omitting the words is not to extend the power-
– Their omission will throw the onus of proof on the other- side.
– Is that the object ? Then this transfer of the onus of proof may be very important to the unfortunate person concerned. Most men, when they receive legal documents requiring their attendance before a Commission, and the production of books and papers relating to their business, do not understand what their rights are. All that they know’ is that they have received a summons very wide in its terms, and they obey that summons. Thus, when a man, in obedience to the order of a Commission’, produces his books and papers, extracts may be made from them, under this Bill, although they are not material to the issue. That is certainly a very wide power.
– If a Commission retained or inspected books outside the scope of its inquiry it would be liable.
– Liable for what ? There would be no penal offence.
– I did not say that there would be.
– The disclosure of a man’s private business affairs is a very serious matter. I ask the Attorney- General to consider the desirableness of at least inserting in the Bill a provision that extracts made from bo>ks and documents produced by order, of a Commission shall not be published by the Commission without the consent of the party concerned.
– For what purpose does a Commission report, except to report to Parliament?
– But is it necessary, for the purposes of Parliament, that extracts relating to private matters should be made from books and documents which may not be material to the issue of an inquiry? A Commission can report upon the whole subject of its investigation without publishing details as to private affairs. We have in the Conciliation and Arbitration Act such a provision as I have suggested should be inserted in this Bill.
– I quite agree that there should be no publication without the consent of the Commission.
– Section 85 of the Commonwealth Conciliation and Arbitration Act 1904 provides that -
No evidence relating to any trade secret, or to the profits or financial position, of any Witness or party, shall be disclosed except to the Court or published without ‘ the consent of the person entitled to the trade secret or nondisclosure. …
Then it is provided further that -
All such evidence shall, if the witness or party so requests, be taken in private.
That is another important provision which should be inserted in this Bill. Then, again, section 86 of the Conciliation and Arbitration Act provides that -
All books, papers, and other documents produced in evidence before the Court may be inspected by the Court and also by such of the parties as the Court allows, but the information obtained therefrom shall not be made public without the permission of the Court.
Provided that such books, papers, and documents relating to any trade secret, or to the profits or financial position, of any witness or party, shall not without his consent be inspected by any party.
– That is quite right in the case of that Act, but would be quite, wrong in this Bill.
– I ask the honorable member to consider the desirableness of inserting some such provision in this Bill.
– I am agreeable to provide that there shall be no publication without the consent of the Commission.
– I wish to draw attention to the fact that a Royal Commission has entire control over its own proceedings, and that it can, if it chooses, examine witnesses in private. The exercise of some of these powers becomes important in that connexion. The third point raised by the amendment submitted by the honorable member for Parramatta is that we protest against “ The improper attempt to stifle fair verbal or written comment.” In that connexion, I would remind the AttorneyGeneral of the case of Rex v. Nicholls, 12 C.L.R., 1911, in which it was laid down that statements made concerning a Judge of the High Court do not constitute a contempt pf the High Court unless they are calculated to disturb or interfere with the course of justice, or the due administration of the law in the High Court. This Bill, as drafted, provides that any person who, by writing or speech, uses word’s calculated to bring a Royal Commission into disrepute, shall be guilty of an offence liable to be punished by a penalty of . £100, or three months’ imprisonment. The offence is not the use of words “ such as would interfere with a Commission in the carrying out of its duties,” but words calculated to bring a Royal Commission into disrepute. After all, it would be a matter of opinion whether the words complained of were likelv to bring a Commission into disrepute. One person might think they were, while others might think that they were not likely to do so; yet, in such a case, a penalty might be imposed. If I, in criticising the appointment of a Royal Commission, said that it was a purely political body, or that we knew from the men selected to serve upon it, not by reason of their sense of justice, but because of their preconceived opinions, beforehand what the finding of- the Commission would be, it might be said that that criticism was calculated to bring the Commission into disrepute, because it might lead many to the conclusion that it could not be expected to make a judicial inquiry. Such a criticism might be held to be contempt, although I consider it would be fair and reasonable criticism concerning a public appointment. Why should not a newspaper be permitted to publish a leading article in which, after criticising fairly the personnel of a Commission, it declared1 that, from’ the record of its members, its finding could be foretold?
– Section 83 of the Conciliation and Arbitration Act gives the Conciliation and Arbitration Court the same protection as we give in this Bill to Royal Commissions.
– In a case before the Conciliation and Arbitration Court, a distinct issue has to be determined. A Justice of the High Court stands between the two parties, and has to determine the question of economic justice that is raised. Even he is liable to criticism.
– He has been criticised very frequently.
– And, as a rule, a man in public life does not object to fair criticism.
– Everything depends upon what is said of him.
– Exactly ; and we should not make it an offence to criticise a Royal Commission unless the criticism is of such a character as would interfere with the proper discharge of its duties. If a man is defamed a remedy is provided for him under the law of libel. If criticism be passed upon him which is unduly unfair, he has a remedy in the Courts of law. This seems to me very much like the provision in the Electoral Act requiring men to sign articles published in the press. It is an extension of the same kind of legislation in an endeavour, as the honorable member for Parramatta has said, to stifle public criticism. Let me read the following passage from the judgment in the case of The King v. Nicholls. The Chief Justice said -
It is said by Mr. Weigall that they suggest a want of impartiality, but we do not find that in them, and I am not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court. On the contrary, I think that if any Judge of this Court, or of any other Court, were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors, or any class of suitors, in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.
That is the view which the .High Court takes as regards criticism of its impartiality. We have to consider who are the persons usually appointed as members of Royal Commissions. I have known politicians to be appointed to Royal Commissions. I do not care to be dogmatic, but I believe that there are one of two members of this House who are also members of Royal Commissions at the present time. The honorable member for Herbert, by virtue of his ability, superior knowledge, and the influence he commands in this House, has been appointed to the high and dignified position of Chairman of the Pearling Commission. Then we have the hon- orable member for New England, who has been appointed to. the position of Chairman of the Fruit Commission. These are men of strong personalty and convictions, and such men invite criticism, more or less, especially if they happen to be members of Commissions dealing with political questions. Party feeling runs high on such questions, and such men may be criticised by the press. That criticism may tend to lower the Commissions of which they are members in the public eye, but it would be monstrous to make it an offence. I, hope the / Attorney-General will seriously reconsider the clause, and will eliminate those words which amply justify everything that the honorable member for Parramatta has said.
– Does the honorable gentleman not think that a Royal Commission should be protected from contempt?
– So far, we have never had any serious complaint of contempt of a Royal Commission. There has, so far, been no necessity to deal with the question. I do not know of any Royal Commission which was degraded by public criticism to such an extent as to be unable to fulfil its duties. I do not think that the Attorney-General would like to appear before a Commission that had the power to commit him for contempt because he had the temerity to express his opinions on various matters. Superior knowledge is not always a sufficient ground for committing another person for contempt. I can, of course, conceive of a case in which a man would make a noise and create a disturbance in the presence of a Commission, and there should, of course, be power to expel him from the presence of the Commission. But this proposal goes far beyond that, and would operate throughout Australia. A Royal Commission sitting at Thursday Island might be criticised in Western Australia, and people in Western Australia might find themselves subject to penalties imposed by the Commission sitting at Thursday Island.
– The right of criticism ought to continue, but I say that a tribunal should be allowed to conduct its business in peace and quietness.
– No one would object to provisions intended to prevent disturbance in the presence of a Court, but we do object to provisions calculated to stifle public criticism. I hope that the AttorneyGeneral will reconsider the matter after having heard what the honorable member for Parramatta has said, and will permit the amendment to go on the voices.
– When 1 heard the Attorney-General speak just now, amid the cheers of his supporters, I was reminded of the story of a young barrister who addressed a Court, and to whom the Judge said, “ Mr. Jones, we were entirely with you until we heard you.” The impression left upon my mind bv the Attorney-General’s speech has confirmed the objections offered to this measure. I have little hope that the suggestions for its amendment offered by the honorable member for Darling Downs will be adopted; but, if they were, very little of the original Bill would be left. It is like the knife which a tradesman advised should have a new handle, and also new blades. This is but a repetition of a number of cases in which, wisely or unwisely, the Opposition have endeavoured to remove crudities from a Bill introduced by the Government that it might be fit to go before the public as a legislative instrument. The Opposition have, I think, demonstrated to all impartial people that this Bill is full of crudities and unnecessary and unjustifiable departures from the existing law. The honorable member for Darling Downs has proved beyond a doubt that the AttorneyGeneral put statements before the House with regard to the laws of other countries that are absolutely incorrect. In introducing the Bill, and in replying to the criticism of the Opposition, the AttorneyGeneral said that the measure proposed to do no more than has already been provided for in legislation passed in Queensland, New South Wales, and New Zealand. The honorable member for Darling Downs has been able to read for us statements showing that the maximum penalty in the legislation referred to in circumstances similar to those in which heavy penalties are provided by this Bill is £20, without imprisonment. Under this Bill there will be placed in the discretion of an unprofessional man a power to fine up to ^100, or to commit the recalcitrant to gaol for three months. The Attorney-General was amusing. He is always amusing; and I sometimes think that he has mistaken his vocation when I hear honorable members on his side playing the part of French claquers, who are employed to attend a play and applaud it no matter what they may think of the dialogue, the acting, or the music. I am reminded of this by the sort of irresponsible buffoonery which is manifested by his party to buoy the AttorneyGeneral up. The honorable gentleman is a great hero with his supporters.
– Does the honorable member not think that he had better discuss the Bill rather than indulge in this cad.dishness ?
– It would be better if the honorable member would be a little more orderly. When the AttorneyGeneral plays this game of intellectual Spring-heeled Jack in this Chamber one wonders why such a man should occupy the solemn position of Attorney-General of the Commonwealth. The honorable gentleman began his speech in reply by saying that he was glad that the Opposition were now reconciled to “ a Bill.” That is a misstatement of the condition of affairs presented by this debate. Every honorable member on this side recognises that there should be a Bill giving the fullest powers to Royal Commissions ; but they take exception to the unjustifiable attempt to clothe a particular Commission - although the Bill is to apply to the future - which has been dragged before the Court and discredited, with powers which no other Court ever possessed in this country, or in the Old Country. The AttorneyGeneral’s statement that he is glad that the Opposition are reconciled now to a Bill may do very well for the Caucus, or for his followers; but the public and the press will recognise at once that it is an absurd misstatement of . the attitude taken up by the Opposition. He went on to say that the Bill “ does not increase the powers of Commissions.” Why, then, I ask, is the limitation of the Act which requires questions to be relevant to the issue to be taken away? Is it not to permit Commissions to go beyond relevancy, and to ask any question they please, possibly dragging forth secret and private facts, perhaps merely to gratify party curiosity ? Sir Erskine Holland, a barrister of Lincoln’s Inn, and Chichele Professor of International Law, an authority recognised all over the world’, says in his Elements of
Jurisprudence, when dealing with the subject of evidence -
Such a “ law of evidence “ is more necessary when questions ate tried by a jury than when they are decided by a professionally trained Judge.
At the inception of this short summary of the law of evidence, there is a distinction drawn between trained men who- understand it and untrained men who know nothing about it -
Ils objects are, on the one hand, to limit the field of inquiry -
Here the attempt is to make the field limitless - by the doctrine that certain classes of facts are already within the “ judicial notice “ of the Courts, and by “ presumptions “ by which certain propositions are to be assumed to be sufficiently proved when certain other propositions have been established ; and, on the other hand, to exclude certain kinds of evidence as having too remote a bearing on the issue, or as incapable of being satisfactorily tested, or as coming from a suspicious quarter.
That paragraph shows that there is a fundamental difference between a trained man versed in the law of evidence, and an untrained man such as may frequently be Chairman of a Commission. One of the reasons for requiring evidence to be relevant to the issue, and giving a Court the right to say on review that certain evidence should not have been considered in arriving at a decision, is that evidence may come from ‘ ‘ a suspicious source. ‘ ‘ What is to prevent a biased party man who may be Chairman of a Royal Commission from bringing before him interested witnesses, and tilling the body of evidence with interested statements, in order that the secretary may draft a report which will mislead the public? The Attorney-General does not seem’ to recognise the force of this argument. He says that if a Chairman misuses his power, and takes evidence which he should not have taken, “he must put up with the consequences. “ What consequences has a Chairman to fear? There is absolutely no provision in the Bill under which he could suffer any consequences. If a Chairman violently attacked a witness, what remedy would either the witness or the public have ? None ! The Attorney-General knows that nothing would happen to a Chairman who went beyond the scope of his Commission. The excuse for removing the limitation of relevancy is mere humbug, and the public should know it. The Attorney-General spoke of the protests against this clause as so much “ hot air “ ; but is it not a fact that the Chairman of a Commission may ask what questions he likes under it? , A witness may be compelled to bring all his books, papers, and private correspondence with his manager, his chemists, or his bankers, before the Chairman of a Commission, who may be in the same line of business, and desirous of obtaining information from a successful rival. lt ill-becomes the AttorneyGeneral, because he is supported by men, many of whom may know nothing of the Bill, to deal humorously with the subject. He asked, it a Judge may commit for contempt of Court, why should not the Chairman of a Royal Commission be empowered to do so? The question showed a crude knowledge of the nature of the two positions, or was an attempt to blind the House. As the honorable member for Darling Downs has pointed out, a Judge occupies, a permanent position, to which he has been chosen for his professional qualifications, including his knowledge of evidence, and his reputation in the world, and with his professional brethren is determined by his ability and willingness to do justice to the parties coming before him. But what is the difference? We may appoint a Commission under the Bill. We may have a political partisan of the deepest dye in some particular occupation, and he may call before him a certain person. He will have the power of imprisonment, the power of breaking into a man’s house or into his club, the power to seize him from the police or anybody else.
– Into his club?
– Yes, his club or his private house. He knows that he is coming back to his party, and possibly is making a placard for the party in order to be able to say “ See how I behaved with them. Didn’t I round them up? Didn’t I take the stuffing out of them? “ I can quite imagine an honorable member from that side of the House coming to the position of Chairman of a Commission, and in caucus, or anywhere else, boasting of the way in which he had “ taken it out “ of the principal of what he calls a ring, or a combine, in order to help the party at the next election. But there is a more serious side to this proposal. I do not know whether -the AttorneyGeneral recognises what sort of power he may be placing by-and-by in the hands of men who are disqualified, I think, for acting impartially. I do not know whether he sees, or whether he pretends not to see, the difference between giving a Judge and the Chairman of a Commission the power to commit for contempt of Court. This extract from one of the greatest authorities on jurisprudence in the world to-day points out the great difference between a jury and a Judge. Even with a jury there are responsibilities. They are not waiting to go back to a party and boast of what they have done with certain witnesses. Cannot one imagine how some member of this party, who is most strong in his party feeling, would, if he had had the examination of Mr. Knox, have gone back and spoken of what he had done with him? This illustrates the danger and shows how completely the Attorney-General either misunderstands the seriousness of his position here, or how he is ready to befool the people and his party in attempting to draw a parallel between a Judge and the Chairman of a Commission. He quoted from the present Act, and said that any question could be asked. It is a remarkable thing that the honorable member for Darling Downs quoted from the very same Act to show that any questions must be “material.” Why is not that fact placed before the House? Why should half-a-dozen words be taken out of the Act and the other parts- not placed before the House in order to show that, although the Commission could ask any question, it must be material to the issue ? The answer to it is here : We have never had it explained to us why the relevancy, as a material and indispensable quality, is removed from the Act. No one on the other side but the Attorney-General has spoken.
– They will not waste time.
– Order ! I have repeatedly called the honorable member for East Sydney to order, and I again ask him to desist from these continuous interjections.
– The honorable member compels me to interrupt.
– If the honorable member immediately disobeys my ruling again I shall take other steps which will prevent him from doing so.
– All right.
– I live so near the harbor in Sydney that I am now accustomed to the fog signals which are used by the steamers.
– Is that what I am to get, Mr. Speaker?
– Order !
– The AttorneyGeneral has told us that the Act has broken down. In what respect has it . broken down ? It has no more broken down than has any other Act in respect to which a point reserved is taken before a Court. If a person goes before a single Judge of the High Court, and a question arises as to whether any evidence is relevant, and he holds that it is relevant, counsel, on the other side, can take the question of relevancy before the High Court itself in order to have it settled. There is no such power given in this Bill. That is all that has been done with regard to the existing Act. A witness declined to give evidence in a certain way, and he took a question before a Court as provided for in the Act, and the magistrate has been sitting for many days hearing arguments to the effect that the Commission had no power to do as they did. To-night we have had the evidence of an honorable member who was before the Commission that the very thing which was refused to one witness in regard to which the appeal is. taking place was allowed to dozens of witnesses. That witness had the right to go before the Court. Because he went before the Court in order to ascertain from a legal tribunal whether the Chairman of the Commission had done the right thing in stopping him from giving his evidence, why should the AttorneyGeneral tell us that the Act has broken down? It has not broken down, but he is anxious to get a political placard for his party, and, therefore, brings in this Bill. The magistrate may give his decision tomorrow, and it may be to the effect that the witness who took exception to the action of the Chairman must give his evidence in the way desired. Will any one say that the Act has broken down then? No. The Attorney- General has imagined, for reasons of his own, that it has broken down. It suits him to come here and tell the House and the country that the Act has broken down, because a point has been taken ; but he will see, by-and-by, that points may be taken in respect of his own Bill. Clause 6 gives the Chairman of a Commission the enormous power of gaoling witnesses . or fining them large sums if they do not do just as he thinks fit, but there are many later clauses which provide for a trial by a Court where a man has done something which he should not do under the Act. Will the Attorney -General say that because some of these questions are being argued in a Court before a Commission can go on, his own Act has broken down? That is nonsense. Either he is talking with his foot, or he does not understand the elementary principles of law. It is either one or the other, because it is absurd to tell honorable members on this side that because a point has been taken, and referred to a magistrate, therefore the Act has broken down. It has not broken down. It stands to-day as firmly and strongly as ever it did.
– Order ! The honorable member is now going beyond the question.
– I am answering the Attorney-General’s contention, sir, which you allowed. He told us plainly here that the Act has broken down, and that that is why this Bill is introduced. I am submitting that the Act has riot broken down. The proceedings before a Commission have broken down, and we do not know yet whether they will be rectified, and whether the action of the President will not be quite justified by the tribunal which is now engaging the attention of the public, and then the Act will be found in statu quo as strong as ever it was thought to be by its authors. The Attorney-General says that the onus is only changed by the Bill and placed upon the witness. I want to say, as one with some experience of legal documents and Acts of Parliament, that there is not a word in the Bill which touches the question of ‘ ‘onus. “ It is all very easy for the Attorney-General to tell his innocent followers that this Bill shifts the onus. There is no onus shifted. The Act provides that no questions shall be asked before a Commission which are not material to the issue. That is to say, which have not a logical bearing on the issue which the Commission has to determine. This Bill does not shift the onus at all. It simply declares that there is to be no limitation of any kind. It need not have any bearing on the issue before the Commission. Any witness can be asked anything about his private affairs, his business secrets, financial position, or his account at the bank. Even if the Chairman of the Commission be a trade competitor, he can investigate all these matters for, it may be, his own personal benefit, and can then afterwards boast to his party about what he has done. I shall not ask the AttorneyGeneral to show me where there is in this measure ample protection for witnesses, because I know he cannot do so. There is not a word in the Bill to give a witness any protection against high-handed conduct on the part of a Chairman, providing that he can take any proceedings if that official exceeds his powers. The Attorney-General, indeed, has taken good care that a Chairman of a Royal Commission cannot exceed his powers, because he is given unlimited right to ask anything at any time of anybody.
The Star Chamber, in its history, affords a fair parallel to a Royal Commission under this Bill. Place a beggar on horseback and he will bolt ; and this’ Bill places power in the hands of men who may not be accustomed to it, and who may be incompetent or unwilling to realize the ramifications of commerce and. of private affairs - who may think that for political purposes they can place information thus obtained before the world, and boast to their fellows that they have done what was required with people whose affairs are so big that the Commissioners could not understand them, and, therefore, attributed all their actions to corruption, or to the action of some form of trusts or combines.
Question - That the words proposed to be left out stand part of the motion - put. The House divided.
Majority , … … 8
Question so resolved in the affirmative.
Original question resolved in the affirmative.
Bill read a second time, and considered in Committee fro forma.
Mr. SPEAKER reported the receipt of a message from the ‘Senate, intimating that it had concurred in the resolution of the House relating to the Panama Canal dues.
– I move -
That the House do now adjourn.
The first Government business to-morrow will be the further consideration of the Royal Commissions Bill.
.- On the 18th July, the Minister representing the Minister of Defence, in reply to the honorable member for Denison, who had asked that some locality in Tasmania should be taken into consideration as suitable for the establishment of the woollen mills, said -
There is not the slightest doubt that the Minister will make a comparison of costs before he decides where the woollen mills shall be situated.
How does the Honorary Minister reconcile that statement with the fact that the Minister of Defence signed, apparently automatically, on the following day, his decision to establish the woollen mills at Geelong, without that subject having come up for consideration ?
.- I wish to call the attention of the Prime Minister to the manner in which the business of the House is being conducted, and to ask if he cannot see his way to alter it. The division ‘of the electorates in Western Australia is a very important matter. If they are to be adopted we want to know it, and if they are to be referred back to the Commissioners, it ought to be done as soon as possible. The debate on the question was half over, and I was in the middle of my speech, when I consented to the adjournment last night, but to-day other business has intervened. This delay is not fair to the State of Western Australia. The divisions of the State of Victoria have been settled, and so has the resolution as to the State of Queensland.
– At any rate, the Commissioners can get to work, but an unnecessary delay is taking place in the case of Western Australia.
.- During the debate on the censure amendment on the Address-in-Reply, I understand _ that the honorable member for Wentworth stated that, during the Werriwa election, some articles had appeared in a newspaper with which I was associated, dealing with electoral matters, and not signed ; that these articles brought the newspaper within the scope of the law; and that some action ought to be taken. I have no recollection of any such unsigned articles ; but if the law has been infringed I hope the Minister will take the same action as would be taken with any other newspaper.
.- Since the House decided last night to refer the redistribution of seats in Queensland back to the Commissioners, I have wondered what intimation could go to those gentlemen to indicate in what way they were expected to reconsider the matter.
– There is no power to give them a direction.
– That is the difficulty, and I should like to know the Prime Ministers’ view of the province of the Commissioners when the matter is sent back to them. If Parliament disapproves of the redistribution made by any body of Commissioners, I suppose there is no means of indicating to them the direction in which they should reconsider it. Are they merely to look up Hansard, and glean the indication of opinion by honorable members, or does the Minister, without any “ direction “ give them some idea of the trend of the discussion in the House?
.- By way of personal explanation, I wish to say that my reference to the honorable member for Cook’s paper was to unsigned paragraphs commenting upon politics. I am delighted to hear that the honorable member expects to be treated in the same way as those connected with other newspapers.
– I may inform the honorable member for Wentworth that the Minister of Defence does not automatically sign anything, as the honorable member well knows. The fact that the honorable member for Denison asked a question relating to cost on a particular day is no indication that the Minister had not previously considered that particular item.
– I would point out to the honorable member for Parkes that section 22 of the Commonwealth Electoral Act 1 902-191 1 reads as follows: -
The Minister is, therefore, practically ordered by the Act to re-submit the matter to the Commissioners, and the Commissioners to proceed with their work, but without the detail indicated in the first instance. In reply to the right honorable member for Swan, I mav say that I considered the P.oyal Commissions Bill urgent. When that is out of the way to-morrow, we shail take the motions realting to electoral divisions, and deal with them until they are completed.
Question resolved in the affirmative.
House adjourned at 11. 12 p.m.
Cite as: Australia, House of Representatives, Debates, 24 July 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19120724_reps_4_64/>.