4th Parliament · 3rd Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
Garrison Artillery - Manoeuvre Areas - Woollen Mills - Prosecution of Cadets - Acquisition of “ Red Leaf
– I wish to know from the Minister representing the Minister of Defence ifhe has noticed the statements which have appeared in the press of Sydney and Melbourne regarding the conduct of certain members of the Defence Force ? These are some of the headings of the press reports: “Military Mix Up,” “Military Muddle,” “Trouble at Sydney.” The matter has already engaged the attention of the House; and the honorable member for South Sydney and a senator have brought under the notice of the Minister of Defence the position of the Garrison Artillery. This branch of the service has been under a militia officer, but is about to be put under a permanent officer. Together with these two gentlemen, I have endeavoured to get the Minister to delay action in the matter.
– The honorable member is now going beyond a question.
– I am afraid that the love of alliteration is greater than the desire for correctness on the part of the newspapers. With regard to the statements in this morning’s newspapers, the Minister informs me that they are excessive and misleading. He has communicated with the authorities in Sydney, who say that there have been no resignations from the Garrison Artillery, as alleged ; but a report has been called for, and will be made available at the earliest moment.’
– Is it the intention of. the Government to disband part . of the Australian Garrison Artillery ; and, if’ so, will the Wollongong force be disbanded ?
– I have not heard of any intention to disband any part of the Australian Garrison Artillery.
– Will the Minister lay on the table the Ordinance to which the Garrison Artillery have objected, and which has caused all the trouble?
– I shall ask the Minister of Defence to lay it on the table.
– Have the Government any intention of purchasing manoeuvre areas in the various States for the exercise of the military? If so, will the House be given an opportunity to discuss the proposal before a determination is arrived at?
– I understand that the matter will be dealt with by the Treasurer when submitting his Budget.
– I wish to ask the Minister representing the Minister of Defence, without notice, whether the Government have come to an absolute determination that no other sites for a Commonwealth woollen mill than the thirty-three mentioned in a report which has been furnished shall be inspected before the woollen mills are established?
– The Government have decided that the report of the expert shall be approved of, namely, that the woollen mills shall be situated at Geelong.
– I wish to ask the Minister representing the Minister of Defence whether the Government will allow those cadets whose parents have been fined on account of non-attendance at drill to “ work it out “ by extra drills, so as to relieve the parents from the payment of heavy fines?
– I will submit the honorable member’s question to the Minister of Defence; but he will know that a Bill has gone through the Senate, and will in the course of a day or two be considered by this House, dealing particularly with the question of fines, and treating with greater leniency those cadets who have not become efficient.
– I desire to ask the Minister representing the Minister of Defence, without notice, whether the Government have decided either to purchase or resume “ Red Leaf “ for military purposes.?
– No such decision has been arrived at.
– I wish to know from the Minister of Home Affairs whether it is his intention to establish ‘ and maintain stores along the route of the line from Kalgoorlie to Port Augusta to supply those employed on the construction of the railway?
– We intend to do so after we have .got away from Kalgoorlie and Port Augusta.
– Before the Minister commits himself in this matter, will he communicate with the Secretary for Public Works in New South Wales, who determined to do, in connexion with a NewSouth Wales line, what the honorable member for Nepean has suggested should be done in connexion with the transcontinental railway, but later decided not to go any further in the matter? Will the Minister inquire of the Secretary for Public Workswhy he came to that decision, so that he may know whether it would be worth his while to do what has been suggested?
– I wish to know, from the Minister of Home Affairs, whether he considers it a good thing to hand over the transcontinental railway to the Governments of the States?
– The matter referred to by the honorable member was a suggestion from- the States. The question will have to be decided by those who will run the road after it is constructed.
– I wish to know, from the Minister of Home Affairs, if he is doing anything serious in regard to the establishment of the Federal Capital?
– As we have acquired 85,000 acres of land within the last week or two, and are pushing on with the work of the Federal Capital as. fast as possible, I do not understand the question.
– I wish to ask you a question, Mr. Speaker, as to the right of members to protection. Since the adjournment, the honorable member for Parramatta attended a meeting at Sydney, and, while replying to statements concerning theFederal ‘ Parliament, was counted out. - .1 ask whether you can afford protection to honorable, members under such circumstances? ‘
– It is not usual to put questions to the Speaker. If any statement has been made concerning the honorable’ member which he desires to correct, he may make a personal explanation. .
– I wish to ask the Minister of Trade and Customs whether his attention, has been drawn to a paragraph which has appeared in the press to the following effect : -
The Health Commissioners were told yesterday by Dr. Burnett Ham (the Chairman) that an analysis of an advertised cure for cancer showed that it consisted of starch (bread) 24.43 per cent., water 75.57 per cent., and borax. 4¼ grains. The price was is. 6d. for a 20z, bottle. The label on the bottle described it as “ The remedy for the world. Cures blood-poisoning, pleurisy, pneumonia, erysipelas, and all inflammations, typhoid, and other fevers, and cancer in all its varied forms.”
Will the Minister take steps to prevent the introduction of these fraudulent compounds ?
– If the article referred to in the paragraph quoted by the honorable member is imported, the Department will take steps to prevent its introduction; but if it is manufactured in Australia, we cannot take any steps in that direction until the people give us the power. We cannot prevent the manufacture and sale of such good’s in any State ; but the Department has prevented thousands of such quack medicines coming into Australia during the last two or three years..
MINISTERS laid upon the table the following papers : -
Arbitration Court - Return showing Numbers of Awards, Compulsory Conferences, Agreements Filed, and Employes Affected.
Conciliation and Arbitration Act - Regulations Amended, &c. (Provisional) -
Statutory Rules 1912, No. 93.
Statutory Rules 1912, No. 153.
Defence Act - Regulations Amended, &c. (Provisional) -
Universal Training -
Statutory Rules 1912, No. 145.
Statutory Rules, 1912, No. 148.
Statutory Rules 1912, No. 151.
Military Forces -
Statutory Rules 1912, No. 144.
Statutory Rules 1912, No. 149. Financial and Allowance Regulations -
Statutory Rules 1912, No. 150.
Patents Act -
Regulations - Statutory Rules 1912, No. ‘76.
Regulation (Provisional) - Statutory Rules 191 2, No. 129.
– I should like to inform the House that owing to the regrettable death of the Mikado, I have despatched the following message to His Excellency the Governor-General, asking him to transmit, through the Secretary of State, the sympathy of Australia with the nation which is in alliance with the United Kingdom -
I have the honour to invite your Excellency to be so good as to despatch a cablegram to the Secretary of State for the Colonies conveying, on behalf of the Commonwealth Government and people of Australia, an expression of sympathy with the Japanese nation in the loss they have sustained through the death of their beloved Mikado.
.- I am perfectly certain that this Parliament, and the.Commonwealth as a whole, will countersign that cablegram in sincere sympathy with the loyal, gallant, and gifted people who have sustained so severe a loss.
Timber for Sleepers
asked the Minister of Home Affairs, upon notice -
– The answers to the right honorable member’s questions are as follow : -
Relations with China.
asked the Minister of External Affairs, upon notice -
Great Britain to desist from sending opium into China?
– The answers to the honorable member’s questions are as follow : -
In 1910 a further agreement was signed, confirming the previous arrangement for periodical reduction, and providing that Great Britain would stop the export of opium to China at an earlier date, if it is shown that China has ceased producing native opium.
asked the Minister of Trade and Customs, -upon notice -
Whether, in view of the unchallenged data re the evil of the Meat Trust, he will, when the Tariff is introduced, take into consideration the need for an export duty on meat whenever the selling price of Australian meat in London is less than the price at which Australian meat is sold to the citizens of Australia?
– This question has already received attention ; but, owing to the varying influences affecting the prices in distant markets, frequently due to causes entirely distinct from those of the localities of production, it is considered the course suggested would not successfully attain the object in view.
asked the Minister of Trade and Customs, upon notice -
– The answers to the honorable member’s questions are -
The number of items, or groups of items, in the Statistical schedules of the Commonwealth and certain other countries are as follow : -
Whilst we would not be justified in attempting to separately distinguish for publication each individual item of imports, I shall . be glad to give careful consideration to any item the importance of which to Australian industry may possibly justify its inclusion.
Electoral Rolls: Failure to Sign Claim Cards. - Report on the Card System. - Non-delivery of Enrolment Notices. - Compulsory Enrolment : Notice to Electors. - Double Voting and Impersonation. - Rearrangement of Electoral Boundaries : System of Dealing with Reports.
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are. as follow : -
asked the Minister of Home Affairs, upon notice -
– The answers’ to . the honorable member’s questions are as follow: -
Compulsory enrolment is proceeding satis-, factorily. Electors have been, or are being, individually notified throughout the Commonwealth -
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable ‘member’s questions are as follow : -
asked the Minister of Home Affairs, upon notice-
Whether he will have notices posted in every post-officeor electoral’ registrar’s office through out the Commonwealth setting forth the compulsory enrolment section of the amended Electoral Act and the penalties for non-compliance therewith, with a view to making the amended! law more generally known?
– The answer to the honorable member’s question is asfollows : -
This action has been taken, and arrangements are also being made to utilize railway stations and other public buildings throughout the Commonwealth.
asked the Prime. Minister, upon notice -
– The answers to the honorable member’s questions are : -
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are : -
Horse Breeding in the Northern Territory. - Sydney Barracks : Double Bay Site. - Salaries of Officers.
asked the Minister representing the Minister of Defence, upon notice -
Has the Minister given any consideration to the advisability of breeding suitable horses in the Northern Territory for military and other purposes ?
– The question of breeding horses in the Northern Territory and other parts of Australia is being considered by the Minister.
asked the Minister representing the Minister of . Defence, upon notice -
With reference to the following question and answer in Parliament on the 24th inst. : - “ Mr. Kelly. - From whom did the Minister understand that Redleaf was available “ ? “ Mr. Roberts. - The information was obtained by the Minister personally from private sources when in Sydney.”
Did the Minister intend to convey that he was determined to keep “ private “ the origin of a proposition which would involve the expenditure of more than One hundred thousand pounds of public money?
If not, will he inform the House who first suggested to him the purchase of Redleaf and ther properties and the reclamation of half of Double Bay as a site for the barracks in Sydney?
– The Minister furnishes the following reply : -
The Minister has nothing further to add to the replies already given.
asked the Minister representing the Minister of Defence, upon notice -
How many officials in the Defence Department are in receipt of £300 to £400 per annum ; in receipt of £400 to £500; in receipt of £500 to £700; in receipt of £700 to £1,000; and in receipt of £1,000 and over?
– The following information is furnished : -
Officials in the Defence Department in receipt of £300 per annum and under £400 per annum, 73 £400per annum and under £500 per annum, 49; £500 per annum and under £700 per annum, 46; £700 per annum and under £1,000 per annum,19; £1,000 per annum and over £1,000 per annum, 5.
asked the Minister representing the Minister of Defence, upon notice -
With reference to the Minister’s statement in reply to Mr. Kelly on the 24th inst.’, that it was the Minister who, as the result of his inquiries in Sydney, drew up the memoranda setting forth the alleged advantages of the proposal to resume Redleaf and other properties in Double Bay and to reclaim a large area of the said Bay -
What were the said advantages as set forth by him?
What was the estimated cost of -
resuming other properties in Double Bay?
reclaiming that portion of the Bay proposed to be reclaimed as. per plan accompanying the memoranda?
Who estimated the cost of reclamation?
Who ascertained the depths of water oa area to be reclaimed as shown in plan?
Do the depths of water shown on the plan purport to give the maximum depths of -water at high tide or the minimum depths at low tide?
Was the estimate of cost of reclamation based upon the depths of water shown upon the plan?
Is he aware that the depths of water shown on his plan are much less than those existing even at low water over- considerable portions of the area proposed to be reclaimed ?
– The answers to the honorable member’s questions are : -
asked the Minister of Home Affairs, upon notice -
Whether he can inform this House if the report and the tentative recommendations made by Mr. W. H. Graham, one of the Commissioners appointed for the purpose of re-distributing the State of Queensland into electoral divisions, were placed before the other Queensland Commissioners for their consideration.
– The answer to the honorable member’s question is as follows : -
Mr. Graham submitted his views to the other Commissioners before the majority report was signed, but it is understood that the minority report submitted by him was not placed before the other Commissioners.
asked the Minister of Home Affairs, upon notice -
Whether he has received any reports from the Chief Electoral Officer (Mr. Oldham) in regard to the distribution of the electorates in the States of Queensland and Western Australia - and, if so, will he place the reports on the table for the information of the House?
– The answer to the right honorable member’s question is as follows : -
The Chief Electoral Officer has not reported on the redistribution proposals of the Queensland and Western Australia Commissioners. The only reports required to be made to the Minister under the law are those of the Commissioners, which were duly laid before both Houses.
asked the Minister of Home Affairs, upon notice -
Has he directed the Commissioners of Queensland to propose a fresh distribution of the State into Divisions?
Employes in Mechanical Branch : Annual Leave. - Unskilled Men in Post-offices.
asked the Postmaster-General, upon notice -
Whether, in computing the period of service in connexion with the annual leave of employes in the mechanical branch, the period of previous temporary service is taken into account. And if it is not so considered now, will he give instructions that temporary service shall be included in making up the roster for annual leave of such employes?
– In the absence of the Postmaster-General through indisposition, I have to answer the honorable member’s question as follows : -
The rule which has been laid down by the Public Service Commissioner is that an officer who has completed twelve months’ continuous service, of which portion may have been served as a temporary or exempt employé, may be granted recreation leave as if he had completed twelve months’ service as a permanent officer. If the honorable member will inform me of any case in which this rule is not observed instructions will be given to rectify the matter.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are : -
Motion (by Mr. Hughes) proposed -
That the report be now adopted.
– I have looked through this Bill within the last hour, and should like to draw the attention of the Attorney-General to some points that have occurred to me. Although it has been amended, it is still a very drastic, severe and exceptional measure. It is to be regretted, in the first place, that the draftsman did not adhere to the same terminology when dealing with the same matters. We have, for instance, struck out of section 2 of the Act the words “ material to the subject-matter of the inquiry.” In connexion with the summons to a witness to attend and produce books, as the clause would have stood without further amendment, a witness would have to attend on getting a summons, and could not plead that the books he was asked to produce were not material to the subject of the inquiry. We have amended that provision by increasing the penalty to , £500, with an additional penalty of , £500 for each repetition of the offence. In the proposed new section 4A providing that it shall be a defence to a charge under the section that the documents, books, or writings were not relevant to the subject of the inquiry, we have made an amendment striking out the word “ material,” and inserting the word “relevant” in relation to the same matter. We have drawn a distinction clearly for the purpose of this Bill between the words “ material “ and “ relevant.” Again, when the word “ relevant “ occurs only in relation to the nonproduction of documents, it does not qualify section 6 of this Act. Under section 6 of the Act a witness must answer a question whether it is relevant or not. He may under the amendment of section 5 to which I have referred refuse to produce documents which are not relevant to the inquiry. But the words used in section 6 of the Act as a protection to the witness are that the question put must touch “ the subject-matter of the inquiry.” It is rather a pity that we do not adhere to the same term. If “ touching the subjectmatter of the inquiry “ is synonymous with “ relevant,” why is not the same term used in both cases? It is always confusing to a Court when two attempts are made to clearly’ express the legislative intent. If we mean the same thing in two clauses we should use the same word to express it. That is not done in this Bill, and I should like the AttorneyGeneral, if the same thing is not meant here, to tell us what is the shade of difference between “ touching the subject-matter of the inquiry” and “relevant.” I note that later on the word “ material “ reappears.’ In the proposed new section 6h it is provided that a witness who knowingly gives false testimony touching any matter “ material “ to an inquiry by a Royal Commission shall be guilty of an offence. I think the word “ material “ is the correct word to use in this case, because no man ought to. be convicted of perjury for evidence which, though relevant, is not also material to an inquiry. There should in such a case be some more substantial relation to the object of the inquiry than the word “relevant” would convey. We are in this position : We have struck out the word “ material “ in one case, and have used the word “ relevant “ instead, contradistinguishing the two words. Then we have used as evidently synonymous’ the words “ touching the subject-matter of the inquiry “ in another proposed section, and later we go back again in proposed new section 6h to the use of the word “ material,” in which case I think the word is correctly used. There is another matter which was suggested to me by an observation made by the honorable member for Darling Downs, and to which I should incidentally like to call attention. In the proposed new section 4a we provide that the defence of relevancy may be raised on an information being laid for the nonproduction of documents. But what about privilege? It might be relevant, and a witness might be convicted, but it might also be privileged. In a Court of law the two things are considered quite different. I wish honorable members to understand that in my reading of this Bill we are giving far greater powers in the light of evidence, and in the light of contempt to this tribunal, a Royal Commission, than are vested in tne High Court of Australia.
– Does the honorable gentleman say that penalties cannot be imposed in the case of a witness who refuses to answer relevant questions’?
– What. I said was that unless “ touching the subject-matter of an inquiry “ means” the same thing as “ relevant,” then a penalty could be imposed, though the question was not relevant.
– What does the honorable gentleman suppose that it means?
– I do not know.Iam not the draftsman! of the Bill. Why use different terms? Why put the Court in such a position ? If the terms used in one case, are comprehensive of one’s meaning, and their denotation and connotation are clear and unequivocal, they should be adhered to. I do not wish to split hairs about the meaning of these terms. The point as regards privilege is this : I quote from Halsbury’s Laws of England, vol. XIII., page 570-
A witness though compelled generally to give evidence may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.
In other words, it might be relevant, and1 a man might be convicted ; still in a Co.urt of justice he could refuse to make certain disclosures. What I wish to know is whether that is preserved under this Bill. It should be preserved by sub-section 2 of section 7 of the Act, which says -
Every witness summoned to attend or appearing before the Commission shall have the same protection, and shall in addition to the penalties provided by this Act be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the High Court.
That may give a witness the privilege I speak of, but’ I doubt it. ‘ The’ doubt raised in my mind by the suggestion oft he honorable member for Darling Downs is that our amendment of this Bill may qualify that section. One privilege, for instance, is the privilege of the Crown. That was asserted in a Court of justice only the other day in connexion with the wireless telegraphy case. It has sometimes been held that the Crown, by merely the expression of a desire not to produce certain documents because they are public property, may refuse to produce them. That matter is still sub judice, but it was asserted in a Court of justice as one of the privileges of the Crown. If privilege is affected by this Bill the question, is, how far are the privileges of the Crown abrogated byit? I merely moot the question in order to give an opportunity to consider it. I now have to deal with the matter of arrest for not being in attendance. In the course of the discussion in Committee we pointed out that a witness ought to be protected by having his expenses tendered ; and we urged that, if the expenses are not tendered, the Chairman ought not to be allowed to arbitrarily commit a man. A police magistrate ought not to be allowed, as he is under the Bill, to order the police to break into any place; not, be it remembered, the witness’ residence, but any place where he may be. Locks, keys, bolts, and everything have to give way before the policeman, who can go into any person’s house and arrest a man whose offence is that though lie has not been tendered his expenses, he may not have a cent to carry him it may be 2 miles, not to speak of 200 miles, in order to attend a Royal Commission. Such a witness may. have to go to gaol, and remain there so long as the President or Chairman desires. The President or Chairman is the only person who can release a man so imprisoned, because, so far as I can see, there is no power to appoint a deputy. This is a matter of drafting, but it might prove to the man affected a matter of substance. The rule of law in regard to witnesses is that if a witness in a civil case has been regularly served with a subpoena, and has had his expenses tendered to him, or has had them tendered within a reasonable time, and does not attend at the trial or proceeding, or attends and refuses to give evidence, he may be attached for the contempt, or an action will lie against him at the suit pf the party concerned. In other words, it is provided that a man may not be arrested for contempt and punished unless the person asking him to attend tenders his expenses. There can be no harm in tendering the travelling expenses beforehand. Something might be said in favour of not tendering a witness his expenses for attendance ; and in this connexion I drew a distinction when we were in Committee. It cannot be ascertained what the attendance expenses will amount to until the number of days is known, but we may know what the travelling expenses ought to be; and it would not be burdensome on the Crown, represented by the President or any part of the Commission, to tender the expenses.
– Would any sane man ask a witness to travel 200 miles without tendering the expenses?
– In these matters, there are many insane things done by sane men ; and I may say that the Conciliation and Arbitration Court does not, perhaps cannot, always act with perfect fairness in this connexion. That Court, I know, is marked, not only by the ability, but by the great industry of its President ; but I think witnesses, or persons summoned to conferences, are, or have been, summoned long distances without being tendered their expenses, and the only protective provision is a similar one to that contained in this Bill. After the event, the payment of the expenses is very little satisfaction to a poor man, because, if he does not attend, he is arrested under a Royal warrant.
– And how long has he to wait for his expenses after the event?
– Perhaps too long; and in cases, in the criminal Courts, men have to go cap in hand to ask for their expenses. As representatives of the public, we ought to have a very exalted idea of the dignity of the subject, no matter how humble his position may be. I do not even like the terminology of the clause. Perhaps because of the amendmentmade, a witness has to report himself from time to time to the President, just as if he were onticket-of -leave. It ought to have been provided that the President might excuse a man for a particular time; but, as the Bill stands, a witness cannot be released from attendance by the President until he is done with altogether. This, again, is a matter of drafting, but to the man arraigned it may bea matter of substance. The clause dealing with contempt is very severe. It is aimed at criticism ; it may be that of a writer in a newspaper. Any of our constituents may have a perfect right to challenge the actions of a Royal Commission, and any one. who exercises that right, either as a leader-writer or as an ordinary newspaper correspondent must, like every other citizen, take the risk of being sued for libel at the suit of the person whose character may be impugned, or as the Bill says, may be the subject of “ false and defamatory “ attack.
– It is impossible for a poor man to get justice, especially when he comes against a wealthy corporation.
– I am sorry that justice does not always act with that ideal smoothness we should like, but it does not follow that we ought to make our laws unjust and harsh. I shall not remind the honorable member of what Shakspeare says that -
In- the corrupted currents of this world, but it would be an extraordinary thing, if because a poor man, from his position, is denied justice, and because blind and arrogant capital may sometimes place difficulties in his way, we should endeavour to i debar any section of citizens from obtaining justice. This is a very drastic clause, and I believe an unnecessary one, seeing that there is the ordinary law as a protection to members of Royal Commissions. We shall, however, have to make the best of the Bill as we have it. I should like to know whether, seeing that we have made this contempt a penal offence punishable with a fine of £100 or three months’ imprisonment, cumulative on repeated offences until the fines may run into many thousands of pounds, we have taken away the right of action from the person impugned. The Bill is not clear on this point; and some day or other, a member of a Royal Commission who has been virulently attacked and deprived of that which is the dearest to him in life, will wish to know whether he is to be satisfied with the penalties imposed under the Bill. I desire some information on the point, merely that the drafting may be made clear. The penalties are very severe, and in some cases it may be that they should be so. It is useless to impose a fine of £50 on a man who can command ^6,000 or ^7,000 as readily as another person can command £1 ; and I can understand that the penalties might, to a large extent, have some relation to the competence of a man to pay them. But under this Bill, no matter what the offence may Le, a pretty heavy penalty may be imposed. It may be said that it is only a maximum : but one thing we must avoid is disparity and inequality in treatment under similar circumstances. It is a great shame that one tribunal should have a lack of guidance from the Legislature - a lack of guidance to which the President of the Arbitration Court very properly called attention, when, in administering the Excise Tariff Act, he said that he had not received any guidance from the Legislature, although, I think, on the whole, he struck a very healthy rule out of his own inner consciousness. We ought, . as far as possible, to help our tribunals. It is no answer to the severity of the penalty to say that it is only a maximum one. In England they prescribe very carefully the rights of citizens in these matters. There a County Court has jurisdiction up to about £500, and has now, ‘ I think, some equit- able jurisdiction too; in South Australia a County or Local Court has jurisdiction up to .£495, and a very large general jurisdiction. In fact, County Courts in England, under the Bill of Lord Loreburn - I do not know whether is has been passed yet - bid fair to supersede the Supreme Courts in certain cases, certainly on circuit, and, to a large extent, even in London, affording speedier, more convenient, and cheaper justice, a tendency in which we have, to some extent, set a good example, because I think that we preceded England in this respect, and in which I hope, subsequently, we may afford a still better lead. Here is the position in England in regard to the penalties taken from, Phipson’s last work on the Law of Evidence -
Failure to attend, or refusal to give evidence or produce documents, in pursuance of a County Court summons, subjects the witness to such penalty, not exceeding £io -
Here it is ^500 - as the Judge may think proper. Obedience to a magistrate’s or justice’s summons is enforceable by warrant ; and if the witness refuses to be sworn, or to answer, he may be committed for not more than seven days.
Here he may get a year, and the punishment is cumulative. I regret if that is to be our type of jurisprudence in this democracy, which ought to be a prototype to British communities, because we lead in many things in energy, spirit, and outlook, and also, I believe, in Imperial patriotism. I hope that iri these matters the punitive justice which marks the morale of a nation above all other things, we are not to retrograde. Coming to the principles of Royal Commissions, I remember that an article on Royal Commissions, and particularly on the case of Ciough v. Leahy cited by the Attorney-General, was written in 1905 by Mr. Pitt Cobbett, who is, I think, one of the leading constitutional writers in Australia. In Ciough v. Leahy the High Court did not state what the prime facts were, because it only dealt with what was relevant. The case came before the High Court on an application for prohibition to prevent the enforcement of a penalty, of ,£20 on witnesses who refused to answer questions which they thought were protected by the provisions of the Act of 1901, which, they said, were ignored by the Commission. To show honorable members that statutory protection may at times be futile, I will explain the case. There was a dispute between two unions, the Machine
Shearers and Shed Employes Union and the Australian Workers Union, as to the registration under the State Arbitration Act of the Machine Shearers Union. Several attacks were made by the Australian Workers Union on the registration, but they all proved unsuccessful. Mr. McDonnell, the general secretary of the Australian Workers Union, was also a member of the Legislative Assembly, and, after he had failed in the Courts of Justice to displace a rival union, he moved for the appointment of a Select Committee, of which, I suppose, he was chairman, and whose other members were named by him. Let us see how far these ideas of Royal Commissions may lead us. We have a very drastic Act, and the only protection I can see outside its provisions, which are inadequate, is the class of men who are put on Royal Commissions, - the fact that we do not prostitute them for political purposes. The first thing in the case to which I refer was the appointment of a Select Committee, and as it was thought that the powers of scrutiny and inspection were not sufficient it was converted into a Royal Commission, of which Mr. McDonnell was made the President. Mr. Pitt Cobbett wrote -
The whole proceeding, however, was_ so clearly a violation of the principle that neither In a judicial, nor even in quasi-judicial proceeding, such as the present, ought a person to be made a judge in a cause in ‘ which he is interested, that in common decency this Commission was cancelled ; and on the 1st December, 1903, a new Commission was prepared.
I think that three or four commissioners were appointed before they could settle down to appoint what they considered would be a proper Commission. I will go back and see what a dispassionate lawyer had to say on its appointment -
In the second place, it possesses an interest of another kind, inasmuch as the facts before the Court reflect only too well certain phases f out political life, which are not altogether to our credit.
I shall not trouble honorable members by dealing with the points of law which he raised, but he did to some extent question the decision of the High Court.- At all events, he regretted that they did not afford a sufficiently clear guidance as to what would be an interference with a judicial inquiry. That case shows honorable members that even the highest tribunal in the land may appear to fall short of giving that measure of protection to a witness which we here desire and acknowledge is necessary to protect him against this too [So] stringent Act. Mr. Pitt Cobbett thought it was an interference with judicial inquiry, and he said -
But on the all important question of interference with the administration of justice, the judgment appears to us to be somewhat vague and inconclusive. It was said, for instance, to be impossible to draw any line beyond which such an inquiry might be unlawful ;’ whilst the Court refused even to contemplate the possibility of a Commission being issued having for its object an interference with justice. 1 will now give a summary of the whole business, because Mr. Cobbett’s words are perhaps clearer than mine would be -
Finally, on a review of the facts, it is somewhat difficult to resist the conclusion that there was in this case an attempt both on the part of those who procured the appointment of the Commission, and those who proposed to act under it, to interfere with the administration of justice., sufficient to bring it within the rule laid down by the High Court - that “ if any one purporting to act under such a Commission were to seek to interfere with the course of justice, such action would be preventible and punishable.” The facts which lead to this conclusion are these : One of two litigants, having failed, so far, in his proceedings in the Arbitration Court, but having not yet exhausted his remedies there, and it being still open to him to proceed in that Court, abandons them for the time being; and, having behind him the influence of a political party on which the Government in power was practically dependent for its continuance in office, procures the appointment of a Royal Commission. This Commission was appointed nominally “ to inquire,” but two of the questions submitted for inquiry were questions which had been - and might again come - before the Arbitration Court. Add to this the extraordinary powers of inspection and of visitation with which the Letters Patent purported to invest the Commission. Add to this the fact that those acting under the Commission actually took steps toward getting at evidence which would otherwise have been privileged from discovery; including confidential communications, which had passed between the other litigant and his legal advisers - evidence which it is submitted would not have been a proper subject of discovery even under the provisions of section 26, sub-section (m), of the Industrial Arbitration Act itself. Such evidence, however, if it had been obtained, might subsequently have been used as a new fact ot new ground of proceeding in the Arbitration Court.
I shall not weary honorable members by reading to the end of the passage, because I have trespassed longer on their attention than I intended, but I shall finally call their attention to the dictum of an English Judge upon Commissions of Inquiry. I wish that we only had time to look up Macaulay and a few other writers on the arbitrary proceedings of Commissions before we proceed to put on our statute-book legislation of this kind. Such legislation is becoming too frequent. I honestly and sincerely commend the motives that inspired those who introduced the Bill, but I think that they are mistaken in some of their methods. Professor Pitt Cobbett calls attention in the following note to the judgment of the Chief Justice in the Lower Court, where the decision was contrary to the opinion of the High Court-
The judgment of the Chief Justice presents in some respects a close analogy to the memorable judgment of Lord Camden in Entick v. Carrington (19 St. Tr. 1030). There the question was as to the’ legality of a general warrant issued by the Secretary of State for the seizure of the papers of the author of an alleged seditious libel. On the question of the legality of such warrant Lord Camden observed, “ This, though it is not the most difficult, is the most interesting question in the cause ; because if this point should be determined in favour of t’he jurisdiction, the secret cabinets and bureaus of every subject will be thrown open to the inspection of a messenger, whenever the Secretary of State shall think fit to charge or even to suspect a person to be the author, printer, dr publisher of a seditious libel.” In relation to the present case, and in view of the powers of inspection and visitation which the Letters Patent purported to bestow under the Act, one might perhaps predict a similar result “whenever the exigencies of party politics are such as to induce a Government in power to issue a Commission of Inquiry.”
That was said of an Act which is mild compared with this. We should hesitate about placing, this punitive legislation on the’ statute-book.
– I wish to register my ‘ opinions concerning the measure before the adoption of the report. I realize the strength ‘. of many of the statements of the Opposition, to the effect that the measure may be- turned against labour organizations and’ industrial movements, and that very great powers are being given . to men who may not have been- accustomed to the exercise of such . powers ; but, on the other hand, we are faced with the fact that there are’ growing up in.our midst huge concerns which are apparently beyond the reach of the law, and defy all existing methods for bringing them into line with public opinion. Apparently they cannot be attacked by any ordinary process. It is clearly necessary, therefore, that some special means of investigation be adopted, so that we may ascertain how we stand. These concerns cannot be allowed to live for. themselves alone. They live upon the community, but surely the rights of the community are greater than those of any corporation within it. I was interested to read this morning an article in the Age regarding the Melbourne Gas Company. Apparently there is no way of dealing with that concern except under special legislation. Either the functions of government must be extended beyond the bounds of which I would approve, or what is now proposed must be done. We may be taking drastic measures, but they are necessary to cope with the corporations which ignore the public weal. I am prepared to experiment in the manner proposed by the Attorney-General.
.- The. importance of the measure justifies a few remarks at this stage, with a view to influencing the Attorney-General to add to it yet further safeguards. At each stage the Opposition has pointed out the defects of the measure with a view to their amendment, and our criticism has brought about several changes. The Royal Commissions Act of 1902 provides that the summons to produce books, documents, or writings must be limited to those material to the subject-matter of the inquiry. The Bill as introduced removed that limitation: It was pointed out that, as the result,- the only limitation was by implication to be obtained from the scope of the Commission. We pointed out that there wasno adequate protection, and that under the Bill as introduced witnesses might be summoned to produce books, documents, and papers of every description, whether material to the inquiry or not. In deference to that criticism, the AttorneyGeneral inserted an amendment providing that-
It shall be a defence to a prosecution under this section for failing without reasonable excuse to Droduce any documents, books, or writings if the defendant proves that the documents, books, dr writing were not relevant to the inquiry.
That protects the witness to some extent, because it allows him to raise the defence, “ I did not produce the books asked for, because their contents were not relevant to the. inquiry.” . . The Attorney-General says that he has shifted the onus of proof, but he has certainly given some protection. Another objection taken was that witnesses had no protection regarding the questions that might be asked of them. To meet that criticism’ the Attorney-General has provided that -
A statement or disclosure made by any witness in answer to any question put. to him by a Royal Commission, or any of the Commissioners, shall not. (except in proceedings for an offence against this Act) be admissible in evidenc.e against him in any civil or criminal proceedings in any Commonwealth or State Court or any ‘Court of any Territory of the Commonwealth.
A third objection raised by the honorable member for Angas was the danger of the cumulative provisions, and the AttorneyGeneral very properly provided that -
Where any person, who has been convicted of any offence against section 5 or section 6 of this Act, is subsequently convicted on information by the Attorney-General of any offence against either of those sections - he shall be liable to the penalty provided. Now, it is only when an information has been laid by a responsible member of the Government that the penalties under this clause apply. We pointed out that the Bill, as introduced, gave unlimited power to copy extracts from books, and the AttorneyGeneral subsequently accepted an amendment moved by the honorable member for Moreton, providing that the copies must be of matters relevant to the inquiry. The AttorneyGeneral also made a promise to do something in regard to the expenses of witnesses. Any person served with a summons to attend who fails without reasonable excuse to do so is liable to a penalty of£500, and the Attorney-General promised that in framing regulations dealing with expenses he would provide for the payment of expenses. He said -
The suggestion is that the payment shall be made in advance; and, while there are circumstances in which that might properly be done, it. would, in my opinion, be fatal to the usefulness and effectiveness of the measure if it were compulsory in every case.
I assure the honorable member that section 8 of the Act will be given effect to; and that is as far as we ought to be asked to go.
I take it that he will’ provide by regulation that in every case where a witness is summoned from a long distance expenses will be tendered to him to enable him to comply with the demand of the Commission.
– That is only fair.
– It is not provided in any State Act-.
– Will the AttorneyGeneral amend the Bill to provide for it here, if I can show him that it is provided in a State Act?
– No. Provision is generally made in the regulations.
– The honorable member for Angas pointed out that the measure might have a retrospective effect, and I am glad that the Attorney-General met that objection. I have suggested to the honorable member that, as Commissioners may take evidence regarding confidential matters, there should be protection as regards the publication of evidence, ‘such as ap pears in the Conciliation and Arbitration Act. I said, in dealing with the subject at an earlier stage -
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. … I am agreeable’ to provide that there shall be no publication without the consent of . the Commission.
Commissions control their own proceedings, but witnesses are bound to answer all questions under pain of such enormous penalties that the honorable gentleman should consider the advisability of providing for their protection by preventing the publication in newspapers of reports of matters which should not be published. It is a fair safeguard for the witness.
– The chairman has that power already.
– I ask the AttorneyGeneral to consider that point in accordance with his promise. I also wish to ask whether we have not under this Bill failed to provide those precautions which are granted to a witness when he appears in a Court of law. Section 7 of the Principal Act provides that -
Every witness summoned to attend or appear before a Commission shall have the same protection, and shall . in addition to the penalties provided by this Act be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the High Court.
Then this Bill provides that a witness shall answer every question put to him, but that a statement or disclosure made by himshall not be given in evidence against him in any civil or criminal proceedings. That raises the question whether a witness is afforded proper protection under section 7. When a witness gives evidence in a Court of law, and a question is put to him, he may say, “ I decline to answer that question, because,- if I do, my answer may subject me to criminal proceedings.” A witness is not compelled to incriminate himself by his . answers.
– The Courts have already ruled that such evidence is not admissible.
– I have already said that such is the law. A witness is also privileged in respect to a communication which has passed between a solicitor -and his client, which need not be revealed in evidence.. Thirdly, communications which have passed between a husband and his wife, or vice versa, are in some’ instances protected. Again, the relations between a clergyman and a person who confesses to him have a certain privilege attaching to them in some cases. Once more, matters of State are privileged. The AttorneyGeneral is aware that, for instance, the Post and Telegraph Department may decline to produce documents in its possession. In the case of alleged infringement of patent, a Government Department may say, “ We decline to give any information. ‘ ‘ That has been done in a recent case. Under our Immigration Restriction Act there may be confidential documents which the External Affairs Department may decline to produce. All these matters are privileged.
– None of them is concerned in this question.
– The honorable member is quite wrong. The honorable member for Angas just now cited a case where Professor Pitt Cobbett pointed out that in certain proceedings confidential communications passing between a solicitor and his client might be revealed, and be made the subject of other actions.
– “ Might “ be.
– We are dealing with things that “ might “ be under this Bill. When we pass a measure of this kind we ought to ask ourselves, “ What does the Bill do ? “ That is a proper subject of inquiry. If a man possessing the sagacity of the honorable member for Gwydir were always appointed to preside over a Royal Commission, we need not perhaps ask ourselves such questions, but we may not always have a man of his capacity available. No qualification is imposed by this Bill as to the sort of persons who shall preside over Royal Commissions. In the case of judicial bodies, the qualifications of the person who is to exercise authority are laid . down. But frequently the chairman of a Royal Commission is the member of the Parliament who happens to have given notice of a motion. The first man who “ gets in “ becomes chairman, by accident. I am not. making these observations in an adverse spirit, but am asking the Attorney-General to consider seriously whether he does not think that under a Bill of this description witnesses should have some protection. Should they not, at all events, have exactly the same rights and privilege that witnesses have in the High Court of Australia, or in any State Court?
– They have those rights under the Bill.
– I am asking the AttorneyGeneral to make sure.
– I understood last week that a witness was properly protected.
– Some drafting amendments have been made in the Bill in the meantime. If any doubt exists, it is only right that these points should be raised, lest some unfortunate person should have to incur pains and penalties to clear them up. The Attorney-General said just now that there was no State Act under which it was required that a witness’ expenses should be tendered to him. I draw attention to the Queensland Justices Act, section 7A, which provides that -
If a person summoned as witness neglects or refuses to appear at the time and place appointed by the summons, and no just excuse is offered for such neglect or refusal, then after proof upon oath that the summons was duly served upon such person, and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance - and so forth. That is to say, under the Queensland Act. before a person canbe. prosecuted for failure to appear as a witness before a tribunal, proof has to be given that a reasonable sum was tendered to him for his costs and expenses of attendance. I think that honorable members will admit that that is only a fair thingWitnesses summoned before a Royal Commission, and required to come from a distance, should not be expected to pay their own expenses.
– Such a provision would be fraught with a great deal of danger.
– I must admit that I cannot see any danger. Suppose that an unfortunate man, summoned as a witness, happens to be living at Port Darwin, and that the Commission before which he is required to appear is sitting in Melbourne.
– Why not go further, and suppose that the witness summoned is living in Wyndham ? That is more extreme still !
– We will say that the witness is living at Albury. Under this Bill, no money need be tendered to him, but if he fails to attend when summoned he will be liable to be punished. All we are asking is that it shall be made perfectly clear that a reasonable sum shall be tendered, so as to safeguard the witness. That will remove all excuse from a witness who does not appear. If, after attendance money has been offered to him, he does not appear, it will show that he is obstinate, persistent, and guilty of conduct which ought to be condemned. The words of the -Queensland Act might very well be inserted in this Bill. I desire to say, in addition, that the measure as it stands is an utter perversion of the whole idea of Royal Commissions. The object of a Royal Comimission is that it shall make inquiries for the purpose of guiding and assisting the Legislature, or an executive body, by the proper investigation of facts, or of matters of policy, or of other public affairs. Here, however, judging from the remarks of one or two honorable members opposite, it is intended that a Royal Commission shall be a body established for the purpose of instituting prosecutions, instead of pursuing, investigations.
– Why so?
– I say that it should not be so. The object of an inquiry by a Royal Commission is that it shall investigate such matters as the effect of legislation or administration.
– And anything else Parliament wants to know.
– Not “ anything “ which Parliament wants to know, because, I am afraid that we may have very inquisitive Houses. A Royal Commission should investigate anything which Parliament wants to know relative to the due performance of functions intrusted to it. Royal Commissions might also investigate the operation of any law. If, for instance, it is found that there is something deficient in the administration of Customs, it would be justifiable to appoint a Royal Commission to investigate the conduct of Customs officers. But I am afraid that honorable members opposite have it at the back of their minds that this measure is to be directed as an instrument against any persons in the community, and be used as an aid to criminal proceedings. If that is to be done, it will be opposed to the very purposes of a Royal Commission, and will set up small Starchamber tribunals, which are likely to do great harm to the welfare of Australia.
– Honorable members opposite have, as it were, opened up the whole subject again. I do not propose to follow them, but one or two statements call for a reply. A point has been raised by the honorable member for Angas regarding the same intent being set forth in different words in various clauses.
The subject-matter of the inquiry,” “ material to the inquiry,” and matters “ relevant to the inquiry “ are phrases used to connote the same meaning. I do not think’ that the point is at all important. There can be no possible doubt as to what the words used in each case mean. However, I am< quite willing that the phrase “ relevant to the inquiry “ shall be used throughout. There cannot be the slightest objection to that, but it does not make any difference. “ Touching the subject-matter of the inquiry “ and “material to the inquiry” are exactly the same as “ relevant to the inquiry.” A number of statements made by the honorable member for Darling Downs in regard to the position of witnesses were so completely foreign to the attitude taken up by him when he introduced the Parliamentary Witnesses Bill - a measure for which I can never sufficiently thank him - that I utterly fail to understand them.
– It was not our Bill.
– It was provided in that Bill that any person who declined to answer questions, interrupted or disturbed a Committee, used insulting language towards a Committee, or did anything in contempt of a Committee, should be guilty of an offence, and that -
A person convicted of an offence against this Act shall, if no higher penalty is provided, be punishable as follows : -
If convicted on indictment, by imprison- ment not exceeding one year or by a penalty not exceeding Two hundred pounds :
If convicted by a court of summary jurisdiction, by imprisonment not exceeding six months or by a penalty not exceeding One hundred pounds. -
When the principal Act and the honorable gentleman’s Bill were before the House, there was not the slightest hint at any of these frightful difficulties with which a witness was going to find himself confronted. But what are the facts? Under the Act as it now stands, a witness finds himself in exactly the same position as a witness in a Court of law. He has to answer all questions put to him, or to put up with the consequences. The honorable member for Darling Downs objected when I read section 1 23 of the Crimes Act of Queensland, but he did not hesitate to read section 79 of the Justices Act of Queensland, relating to proceedings before a justice of the peace. A witness certainly needs all the protection he can get when before some justices of the peace, but the position of a witness before a Royal Commission of inquiry is altogether different.,
We are giving such a witness all the protection he needs. He has now, and will have, the protection that is given to a witness in the High Court. What more can he want? Notwithstanding what the honorable member has said, the protection provided by section 7 of the Act is not taken away by any amendment made by this Bill. An interesting commentary on the attitude of our honorable friends opposite is furnished by reference to the Australian Industries Preservation Act of 1909, which was introduced by the honorable member for Angas. Under that’ Act, it is provided that any person who declines to answer any interrogatories put to him shall be guilty of an offence and punished. Any person who declines to answer any question put to him under the Act, as amended by the honorable member, is liable to a penalty of £100. In that case, no limitation whatever to the scope of the question -that may be put is proposed. There is not the slightest reference in the section to the relevancy of the question and the protection of the witness. A witness has to answer the questions put to him or pay the penalty for which the Act provides.
– That does not refer to witnesses.’
– Here. is. ‘the Act; the honorable member- can see it for himself. If refers to questions . put, and the answers “ -given to those questions. In the original Act of 1902, ‘‘there is not the slightest reference: to!’ any protection for witnesses, such- as is now suggested, nor is there any question of’ protection in regard to the publication of any evidence. All these matters have only lately been brought home to’ the minds of honorable members opposite . -by the fact that it is proposed, at last, to amend the Act, and that that amendment is proposed by the present Government. That is the beginning and the end of the trouble.
I am prepared to make the amendments to’ which I have referred, that where a question is put it shall be “relevant to the inquiry.” I am prepared to keep to that form of words throughout the Bill. I think that is quite sufficient. The honorable member did not indicate a preference for any particular set of words, but I think that the use of the words “ relevant to the inquiry “ will make the position quite clear. I am prepared. to make that alteration. I have already told the honorable - member for
Darling Downs that the regulations will beso framed as to admit of a witness, when summoned from a distance, being tendered his expenses with the subpoena.
– The Attorney-General’ must bevery hard pressed for an argument when he so persistently quotes the Parliamentary Witnesses Bill, which is not yet the lawof: the land. That Bill has been before usquite a number of times, but on every occasion it has failed to pass, for the reason that the House has been affronted by the drastic proposals it contains. Honorablemembers have turned them down. That being so, why are they brought before ustoday as examples of what we ought toenact ? Government after Government during the last ten years have tried to secure the passing of that Bill, but have- never been able to convince this House that it ought to be made the law of the land. The stringency of its provisions and the severity of its penalties have been responsible for its failure to pass. The AttorneyGeneral has said that he can never be sufficiently grateful to the Opposition for having introduced that Bill. His knowledge of history . in this connexion is at fault. The Bill was not originated by any Government.
– I ask the honorable member not, to discuss that matter. . The matter. is already on the business-paper for discussion.
– I intend only to indicate the origin of the Parliamentary Witnesses Bill. It was introduced by the late Senator Neild, and, if I remember rightly, on being brought down here, lit was taken up by the Government of the day, and submitted to. the House. ,
– Here it is, and it bears the name of the honorable member for Bendigo.
– That is a later development of the original Bill. My. recollection, I think, is quite correct.
– The honorable member is speaking of its “ genesis “ ; I am speaking of the “ revelation.”
– The revelation, is that the severest penalty imposed under that Bill is ; £100 or twelve months’ imprisonment.
– Twelve months’ imprisonment is, I think, the severest penalty for which it provides.
– A penalty of £500.
– Does it provide for a£500 penalty?
– Order ! I ask the honorable member not to discuss that Bill.
– The AttorneyGeneral quoted from and discussed it on several occasions.
– I followed the AttorneyGeneral very closely, but did not hear him quote it.
– He quoted just now some of its provisions in regard to penalties. It is most unfortunate that these things are got- out on the other side, and that we cannot answer them.
– The honorable member will have ample opportunity to make his answer as full as possible; but he must not discuss that Bill.
– I am not.
– The honorable member was doing so.
– I was simply answering the Attorney-General’s question.
– On a point of order, Mr. Speaker, I ask whether a member in discussing a measure cannot refer incidentally, by way of illustration, to analogous matter in another Bill?
– The honorable member for Parramatta would be in order in adopting that course, but not in discussing the Bill in question generally. He was proceeding to’ discuss the origin of the measure when I interrupted him. I allowed him ample latitude to draw his illustrations, but he proceeded to go further than that.
– In reply to the Attorney-General’s” statement that the Parliamentary Witnesses Bill was brought in by a previous Administration, surely I am entitled to show that he is in error ? If I may not correct such a mistake, then what is debate for?
– Order! Will the honorable member proceed?
– No, in the circumstances, I shall not proceed.
Question resolved in the affirmative.
Debate resumed from 23rd July (videpage 1 132), on motion by Mr. King O’Malley -
That the House of Representatives approves of the distribution of the State of Western Australia into Electoral Divisions as proposed by-‘ Messrs. E. G. Stenberg, H. F. Johnston, and’ A. W. Piesse, the Commissioners for the purpose of distributing the said State into divisions, in their report laid before Parliament on the 19th day of June, 1912, and that the divisions referred to in the report and indicated on the map as A, B, C, D, and E, be named as follows : -
.- When the debate on this motion was adjourned last week, I was pointing out that the number of electors in the Coolgardiedivision had greatly diminished. In the gold-fields districts of Cue, Mount Magnet, Leonora, Mount Margaret, and Menzies, each of which returns a member to the State Legislature, the number of electors has been diminished in the last two and a half years by 6,359. I pointed out that the number of electors now in the division of Kalgoorlie, represented by the PostmasterGeneral, is 20, 255, , being 10,136. below the quota. The number in the adjoining district of Coolgardie is 24,177., or. 6,214 below the quota. During the same period of two and a half years, the number of electors in the Swan electorate, which I have the honour to represent, and which is, for- the most part, an agricultural and pastoral electorate, has increased by 7,921, and now numbers 48,997, or 18, 606 above the quota.
– What is the right honorable gentleman’s authority?
– I am quoting the. figures supplied by the Commissioners, in ‘ their report. They show that there has been a reduction in the number of electors in the gold-fields districts of the Coolgardie division of 6,359.
– That is not correct.
– It is correct, if the maps and reports supplied for the ‘ information of the House be correct. ‘
– I have before me the Statistical Register of Western Australia, and . the statement is not correct.
– I. am not quoting from the Statistical Register of Western Australia, which is not now before me. I am dealing “with the report of the Commissioners, which is a public document, and is now under consideration by the House. In my opinion, it is not justifiable to make the number of electors in the Swan division and the new division - which, for some reason or another, to which I shall refer presently, is called the Dampier division - above the quota.- It seems to me that the Commissioners acted- wisely in making above the quota the diminishing electorate of Kalgoorlie, with its present boundaries, and containing 20,255 electors, or 10,136 below the quota. The Kalgoorlie electorate, represented by the Postmaster-General, under the arrangement proposed by the Commissioners, will have 3,640 electors above the quota. It is to have 34,031” electors, but that number will still be 2,438 below the maximum allowed by law. In the period of two and a half years, which I take for comparison because it is that time since a previous report of this kind was submitted to this House, the electors of Western Australia have increased by 9,083. The number in the Perth division has increased by 5,564, in the Fremantle division by 2,986, and in the Swan division by 7,981, or a total increase in these three divisions of 16,471 electors. The number of electors in the Coolgardie division has, in the same period, been reduced by 5,986, and in the Kalgoorlie division by 1,402, a total reduction of 7,388, leaving, as I have just said, a total increase in the number of electors in the State of 9,083.
It is interesting from my point of view, though it . may not appear so to the honorable members for Kalgoorlie and Coolgardie, that there are two members of this House representing those electorates with a total of 44,432 electors, whilst I, as the member for Swan, with a total of 48,997 electors, have only one vote as against the two votes which may be recorded by the honorable members referred to. I represent 4,565 more electors than do the” two honorable members to whom I have referred put together, and on the principle about which we hear a good deal from honorable members opposite, of one-vote-one-value, I should have, as much voting power in this House as both the honorable members for Kalgoorlie and Coolgardie. I shall have something to say presently about the name Dampier, given to one of the divisions. The question of the arrangement of electorates should not be a party matter.
– Quite so.
– If it is not a party matter, it certainly looks a good deal like it.
– It looks like it on the right honorable gentleman’s side of the House.
– I suppose it does not look like it on the opposite side?
– There is no evidence of it.
– I shall say quite enough on that aspect of the matter before I sit down. The honorable member for Coolgardie evidently desires to “ gerrymander “ the Dampier electorate.
– Order ! The right honorable member must not use that expression.
– Is the word” “gerrymander” objectionable?
– The right honorable member is imputing improper motives.
– What is the meaning of “ gerrymander “ ? I do not think it is a wrong expression.
– It is used in an offensive way, and the right honorable member is not justified in using it in that way.
– I shall substitute the word “ arrange.”
– How can that be, seeing that the Commissioners still have the right to fix the boundaries of the electorates?
– I say that the honorable gentleman evidently desires to arrange the boundaries of the Dampier electorate so as to make that electorate a. little safer for himself. I say deliberately that the honorable gentleman can have no> other object, and I shall try to prove it.
– What is the right honorable gentleman’s object?
– I shall say what that is, too, directly.
– To make a safe seat foc himself.
– I am not accustomed to act in that way. I have been generous to a degree, and on a former occasion did not retain a safe seat when I had it. I think it is quite natural for the honorable member for Coolgardie to desire to look after himself. No one will blame the honorable member for that ; but I do say that, in looking after himself, he should not have told this ‘ House and the country that he is influenced by public motives and acting on public grounds.
– Did I not make out a; good case on public grounds?
– I think I shall be able to show that the honorable gentleman did not.
I should like to ask the Government what will happen if we send this report back to the Commissioners, and they submit another which will be worse than this for the honorable member for Coolgardie?
– They could not do so.
– Suppose they <io, what will happen then? Will the report be returned to them again? I point out the danger of sending back these reports for reconsideration, in view of the fact that this is the last session of this Parliament. In this particular case one of the Commissioners who drew up the report bow under consideration is absent from the Commonwealth. Suppose the other two Commissioners say that they prefer to wait until he returns before proposing a new distribution, is there any power to direct them to act at once? Even if they have such a power I do not think the Governmnent would care to exercise it. If we are to await the return of the absent Commissioner the result may be that we shall have to contest the next elections with the electorates as they are at present. I should like to know whether that contingency has not entered into the mind of the honorable member for Coolgardie.
– I know that the Governanent have power to appoint fresh Commissioners, and the right honorable gentleman knows that too.
– I do not. I do not know that the Government, even if they have the power, which I question, are likely to do that sort of thing. These Commissioners are men of high repute ; their integrity is not questioned in any way, and there is no reason for superseding them. I think that the phase of the question I have suggested may have entered the mind of the honorable member for Coolgardie, and that he has considered the possibility that the next elections may be conducted with the boundaries of the Western Australian divisions as they are at the present time.
– The honorable member should confine himself to the matter before the Chair.
– I have a great suspicion that that contingency may have come into the honorable gentleman’s mind. The Swan division, with nearly 50,000 electors, has more than double, and by the time the election takes place may have three times as many, as the divisions of Kalgoorlie and Coolgardie. As the honorable member for Coolgardie knows, that would not injure me; the more the better, so far as I am concerned.
– Then why does the right honorable gentleman worry about it?
– I have no wish te say anything disagreeable to the honorable member for Coolgardie; but I think every one, including the honorable gentleman, must have considered what would happen should this report be sent back to the Commissioners, and the honorable member for Coolgardie be more dissatisfied with the new proposal than he is with that now under consideration. I have no doubt that if the arrangement remains as at present the honorable member for Coolgardie will politically breathe more freely than he does now.
– I am very happy now.
– I should say that the honorable member is politically very unhappy, and no one, I think, realizes that more than the honorable member himself. All I ask is that Ministers and honorable members will realize that the same difficulty arises here as arose in regard to the other distribution that was disallowed the other day.
– The honorable member must not discuss that matter.
– I am. merely mentioning it to show that there is the same difficulty in both cases, and that there may not be time to make any alteration. I know that the astuteness of the honorable member for Coolgardie is very great, especially when he is personally interested.
– I wish I had the honorable member’s astuteness.
– There is another point which I think will prove both interesting and new to honorable members. The honorable member for Coolgardie directed all his attention to the large area coloured red on the map, which shows the proposed new electorate of Dampier, although one would naturally have thought he would devote himself more particularly to the arrangement of the Kalgoorlie electorate. I may tell honorable members, however, that the majority of electors in that red portion are not in the honorable member’s electorate at the present time; on the contrary, only a small number of the electors in the red portion are in the electorate of Coolgardie. While in the new electorate of Dampier there arc 8,933 electors of Swan, there are only 10,306 electors of Coolgardie.
– That is all the better for the honorable member.
– These figures show that the honorable member cannot claim to consider this red-coloured portion as peculiarly his; but he, as I say, directed his attention to it, no doubt thinking it the best seat for him to contest. The honorable member’s electorate has been absorbed by Kalgoorlie ; and I should advise him to contest Kalgoorlie, where most of his constituents now are, to . the number of about 14,000. In the proposed Dampier electorate there are two of the present Swan electors . to one of the present Coolgardie electors ; and therefore the honorable member has only a third right, as it were, to consider Dampier as in any way belonging to him.
– Did I say a word to that effect ?
– I think the Honorable member inferred it; otherwise, why labour the point so much ? If the honorable member does contest tbe Dampier electorate, these 18,933 electors will wish to know why he desired the rearrangement - I was going to say why the hpnorable member was going to ‘“gerrymander”, but I know that you, Mr. Speaker, would not allow me to use the word. That practice is named after a former Governor of Massachusetts, named Gerry.
– The honorable member is evidently very familiar with the subject.
– I made a note of the fact.
– What did that Governor do?
– In 1812, wishing to gain some advantage, he arranged the electorates to suit himself. As I say, . the Swan electors in the new Dampier division will wish to know why the honorable member for Coolgardie desired to arrange the electorate so as to destroy their parliamentary power and influence, and their community of interests, by adding over 3,000 miners to an agricultural and pastoral district. I prepare the honorable member for the question when he seeks their suffrage.
– The honorable member’s electors will wish to know a few things from him.
– I shall deal with my electors presently. Why did we have a long speech from the honorable member on the desirability of removing a certain number of miners of Cue and Mount Magnet into an agricultural district?
– Did not the honorable member himself put the miners into that “division ?
-I am talking about what the honorable member desires to do. Why did the honorable member give so much attention to that matter, and never mention other districts, which are in the same position exactly. Perth, with- 29,320 electors, is over 1,071 below the quota, and Fremantle, with 29,563. electors, and Swan, with 29,800 electors,, are also below the quota, which is 30,391.
– Those are very fair divisions.
– But they’ are below the quota. Kalgoorlie is 3,640 above the quota; and the extraordinary thing isthat the honorable member for that constituency, who, I am sorry to hear, is absent to-day in consequence of indisposition,, does not complain. I could understand that honorable member complaining about having too many, electors; but I cannot understand, unless there are some other grounds, why others, who have less than the quota, desire more. I may mention that Kalgoorlie, although it has 3,640 above the quota, is still 2,438 below the maximum allowed by law. If Cue and Mount Magnet are added to the Dampier electorate, then that electorate will be 2,216 above the quota, instead of, as proposed by the Commissioners, 1,652 below the quota. There is not much difference in the figures; and I may say that in the case of the electorates of other States the margin is far greater than in the case of Western Australia. No one who knows the condition of affairs would regard the arrangement proposed by the honorable member for Coolgardie as either equitable or justifiable. I do not desire to detain the House; but I think I have shown that there is no reason at all why there should be the proposed addition to Dampier.
I should now like to refer to the question of naming these electorates. I do not know who suggested “ Dampier,” The Commissioners did not suggest it in their report. Generally speaking, we should avoid names which are used for the local Parliament, and in all the States, except Western Australia, that principle has been observed. In Western Australia, however, we have “Swan,” “Kalgoorlie,” “Perth,” and “ Fremantle,” all used for both Federal and State Parliaments; and it is often very difficult to know whether reference is being made to a State or a Federal member. The name “ Dampier- “ will, of course, avoid any such inconveni- ence, and something might be said in its favour. Dampier was the first English.man to see Australia, in the ship Roebuck, and he named many of the chief physical features of the north-west coast, including Roebuck Bay, on which Broome is situated. After all, however, Dampier only saw the very tropical part of Australia, north of the tropic Capricorn, and a very small portion of that ; and, on the whole, I do not think this a very appropriate name. Why the division should be called “ Dampier,” instead of “ Swan,” I am at a loss to understand. The name of this district ought not to have been changed, but there should have been a change in the case of the southern district. The northern division contains the Swan River and the local electorate of Swan, and, as I have said, the portion 16 be absorbed by the proposed Dampier division contains 18,933 electors of the present Swan division out of the total of 29,239 in the whole new division. There are other reasons why the name “ Swan “ should be retained. The district contains many historic places, including York, Northam, Beverley, Toodyay, Gingin, Dongara, and Geraldton - all prominent names in the early days. There are also the Swan River, the Avon, the Canning, the Moore, the Irwin, the Greenough, the Chapman, and the Murchison, all connected with the early Swan River settlement. The southern half of my present electorate comprises the south-west corner of the continent, and it is associated, with Pinjarra, Bunbury, Busselton, the great southern towns of Pingelly, Narrogin, Wagin, Katanning, Williams, Kojonup, and Albany. Why should we not have a marne associated with these places? I have several names I shall suggest to honorable :members as suitable. First there is “ Leschenault,” after the early naturalist. This district was called the “ Leschenault “ district for many years; and to this day the name appears in deeds. Then there is “Stirling,” after the first Governor, and a name that has been given to one of the finest ranges of hills in- the country; “Gregory,” after the two early distinguished explorers; and “Australind,” and “ Leeuwin.” Any of these names -would be appropriate to the south-west -corner of Australia. We may be asked what is in a name, but when we are about the business we might as well have an appropriate one.
– Why not a native name?
– I am afraid that some of the native names are much too long for the purpose.
I should now like to make some general remarks in regard to the practice we are adopting in dealing with the- redistribution of electorates. I regret that there has been an exhibition of party feeling . in connexion with the rearrangement of the- divisions. In my opinion it is deplorable. I think that the systemought to be swept away and shunned as a poisonous, cancerous growth, injurious to us as a Parliament, both individually and collectively. Our action brands this Parliament as being unfit to- act judicially in any matter personal to any honorable members.
– What does the right honorable member suggest?
– Let us make a tribunal so strong that it will be respected, and let its decision be final. It is time that the present system was swept away. It puts persons in a difficulty in which they do not want to be placed. I should like to know what honorable members opposite are trying to do. They have been trying to arrange the electorates of this country for party purposes.
– We are only imitating the right honorable member’s example in that respect.
– That will not make it any better, even if the statement were true. What we saw the other day, we shall see now. What was done here the other day to help an honorable member who sits on the opposite side? What do honorable members on the other side want to do to-day but to help a member of their own party? How could the House be so unanimous as it was the other night against’ the Ministry if the honorable member for Herbert had not been at work ?
– That is not true.
– Order ! The right honorable member must not refer to that matter.
– I know that the honorable member for Coolgardie has been using all his influence. He has distributed a circular - he did not send one to me - pointing out the enormity of the proposed divisions by directing attention to this red piece of map which he wanted to have so arranged as to suit himself.
– There is one of them here; I should like the right honorable member to read it.
– I am not going to read it. The honorable member is going to succeed in doing what his colleagues did- the other night, when they said “ We must give a vote for Bamford.”
– I did not ask a man for a vote.
– The honorable member arranged the thing very well.
– Order !
– Mr. Speaker, I ask your protection.
– Order ! The right honorable member must not make that statement.
– If I have made a statement which you do not approve of, sir, I will withdraw it and express my regret.
Honorable members seem to forget that, in this matter, they are in a high judicial position and one of great responsibility. They have the duty of judging the work done by expert and well-qualified officers - the Commissioners.
– As Mr. Frazer was in 1909, when the right honorable member set aside his report.
– There are three Commissioners now, anyway. There is one Commissioner for each State who has more knowledge, perhaps, of all the electorates than has any other man in the country, because he is the SurveyorGeneral. I am very pleased that 1 got that alteration put in the Act, because now we have in every State one man who does know something about the geography and the places where people live.
– He is a nice, friendly man besides.
– I am referring to every State, and not only tq Western Australia. We have the duty of judging the work done by experts and well-qualified commissioners appointed under the law, because of their special knowledge of the subject. “What an exhibition it was to see every member on the other side voting against the Government the other day.
-Order! I have repeatedly told the honorable member that he> must not refer to that matter, as it has been settled. I do not want to have to make this request again.
– I will not do it, sir. I was only saying that that is what they are going to do again.
– Order !
– I want tolead up to that, sir. 1 want to point out that they desire to vote together, and tosay that they are actuated by some high, motive - high desire to do their duty.
– Like the late Ministry did.
– What sort of argument is it that the late Ministry did something? Even admitting that it waswrong, would that make this thing right? The honorable gentleman, being a lawyer, knows that that is no excuse. Let us do right, even if some think we havedone wrong in the past. It is considered highly immoral for any one toapproach a Judge when he is on the Bench. So much is it thoroughly understood that no one shall approach or speak to a Judge- in regard to a matter before him, that it ispart of our moral ideas. But what dowe find here? We, the judges, are approached with circulars sent to try to influence our judgment. For what purpose?” Not in the public interest, but for personal interest. I regret very much to see this matter dealt with on party lines. “ Spoils to the victors “ again.
– The Government vote* with the honorable member the other night-
– I admit that the Government have done right and well. It is not as it was on the last occasion, _ when the electors were distributed in a way of which I, . at any rate, although it suited me, could not approve. There is no one who can say that this distribution is not a faithful attempt on the part of the Commissioners to do what is right and just, and thehonorable member did not seek to show,, except in regard to an electorate which hewould like to make a little better for himself that there was any injustice to any onein this arrangement.
I want to now quote the opinions on this-. matter of members of the Labour party, asreported in Hansard, and to ask them how they can reconcile their present action with,, those opinions. On the 23rd November, 1909, the honorable member for Darling, said, on page 6185 of Hansard - _ These distributions were to have no party significance, and the best men available wereto be appointed for the purpose. This should’ be a non-party matter.
Yet the honorable member for Darling.voted on the 22nd instant, in what was au party vote, to assist a member of his party-
– Order ! I have asked the honorable member before not to refer to that matter. He must not do so again. >
– 1 thought, sir, that you would allow me to utter one word to connect my remarks.
– Order ! The right honorable member has no right to do that.
– How am I to state that the honorable member is not acting in a consistent manner, unless I can appeal to what he said then? .
– Order I -
– I shall quote the opinion of another man who I am sorry to say is not with us now, and that is the late Mr. C. C. Kingston, in regard to the Parliament interfering with the work of Commissioners in arranging electoral divisions. Speaking on the 18th August, j 903, he said, at page 3734 of Hansard -
I know the mischief which results when members of Parliament are called upon to apply themselves individually to questions of this kind. Naturally, to a great extent, they lose sight of the principle underlying them, and pay regard to how they themselves may. possibly be affected.
On the next page he said to honorable members -
Keep the Parliament free from this question as much as you can, and you will get better results from impartial officers.
On the 18th August, 1903, the present Attorney-General said -
The Commissioners are placed in a position outside the arena of politics, and their duty is to distribute the electorates under such conditions as will enable politicians to fairly appeal to the country. It would be a lamentable thing if politicians were allowed to divide the State into electorates to suit themselves.
I would ask the honorable member, if he were here, whether he will say this to his supporters, and especially to the honorable member for Coolgardie. Then we have the honorable member for Gwydir. I wish he was here, because he rather poses as be<ng always right. I shall read what he said on the 23 rd November, 1909, in regard to the arrangement of electorates by Commissioners. Speaking in the fulness f his indignation - honorable members know how he does it-
– Order ! The honorarable member’s time has expired.
.- It is rather to be regretted that the honorable member for Swan should have thrown so much party feeling into this discussion, particularly when we remember what took place three years ago when the last redistribution scheme was before us. On that occasion the then Prime Minister put the position, to my mind, very clearly, as far as members of Parliament are concerned. He said -
I rose to point out the fact that from the very first the Parliament has claimed a free hand in dealing with redistributions. Tt has left each decision to the individual conscience and judgment of honorable members. It has left each member to shoulder his own responsibility.
On that occasion they decided to follow that course. The right honorable member for Swan, I think, took up the right position on that occasion. He said -
I feel justified in saying that the arrangement of the electorates by the Commissioner, a man I respect, and have a regard for, does, not commend itself to my judgment. I do not consider it is a good arrangement, and for that reason, if it goes to a division, I shall vote against it.
That seems to be a matter of common sense. I have no personal or party interest to serve. My objection to the scheme is based on the reason which the Commissioners have given in their report. They say -
The Commissioners are of opinion that their first and foremost duty is to submit such recommendations as will secure in each of the proposed Divisions the nearest approach to >k,.e quota of enrolment at the time of the impending general elections in 1912. The Commissioners also consider themselves justified in assuming that the provision contained in “ The Commonwealth Electoral Act “ for the creation of Divisions of equal electoral strength - or as near thereto as circumstances will admit - indicates an underlying principle and a desire on the part of the Legislature of giving to all votes, so far as possible, an equal value.
Yet they set to work to divide the electorates according to what in their opinion will be their state in the impending general election in 19 12. So far as 1 know there is- not a general election impending in 1912 ; that is the first blunder that they made. If the Victorian Commissioners had been allowed to act on guess-work, this State would not have lost a member, her population at the present time entitling her to the full number given under the last distribution. The Victorian Commissioners, however, felt themselves bound to work with the figures obtained by the last collection of the census. Apparently, the Western Australian Commissioners did not consider themselves bound in the same way.
-They kept within’ their maximum.
– Yes; but that is a secondary consideration. They give four divisions less than the quota, and the fifth considerably more than the quota. The distribution of population now proposed is 29,320, 29,563, 29,800, 29,239, and 34,031 ; but if the allotment which has been suggested is made, the last two divisions would have 30,763, and 32,507 - a more equal arrangement. Section 16 of the Commonwealth Electoral Act provides that-
In making any distribution of States into Divisions the Commissioner shall give due consideration to -
Had these Commissioners based their scheme of distribution on the numbers in the divisions at the time they made it, there would have been no need to use the large margin which they have used. They have distributed the population, not on the basis of its actual location, but in accordance with what they imagined would be its location in 1912, when they assumed there would be an election.
– And they speak of being guided by the new quota.
– Yes; they say-
Although it would appear on the figures avail- ‘ able, and on the basis of the estimates made, that the enrolment in the proposed Division ‘ “ D “ will at the time of the election be about ‘ 2,100 in excess of the then existing quota, the Commissioners are satisfied that, unless, some entirely unforeseen circumstances arise, Division “D” as proposed will show no excess of the new quota.
They have gone by guessing, which appears to be unjustifiable. I am not surprised that the honorable member for Coolgardie has read the opinion of an eminent Melbourne counsel to the effect that they acted illegally in departing from the prescribed quota on the hypothesis that there would be a change in the distribution of population at the time the next election came. That seems to me so wrong a basisfor the Commissioners’ scheme that I can- . not give my sanction to it, and for that reason, and for that reason alone, I shall vote against the adoption of the report. .
.- I wish to protest against this proposed dis-; tribution. The difference between the populations of the proposed divisions is even greater than in Victoria, where the population is denser. I have already protested against the wiping out of two Victorian electorates. The difference between the largest and the smallest divisions in Western Australia is 4,792, whereas the difference between the largest and smallest Victorian divisions, outside the metropolis, is only 3,629, and inside the metropolis only 4,629. Thus the difference is greatest where population is sparse and distances almost limitless. This” distribution by men who have ventured to be prophets is an infamy on the escutcheon of Australia,- and I shall, therefore, vote; against the adoption of the report.
.- Whenever the reports of Commissioners on distributions of electoral divisions have been before the House, there has been more or less dissatisfaction, but when it was announced that instead of one, we were to have . three Commissioners, I, in common with many other honorable members, thought that the referring back of reports would cease. Those who know the Western Australian Commissioners are aware that they are the best men who could have been found in the State for the work they were selected to do, and those who read their report carefully will see in it evidence of the most painstaking effort to perform their task thoroughly and impar-. tially. In the discussion of this matter there is no need for heat, even on the part of Western Australian ‘ representatives. The proposed distribution reduces my elec- . torate slightly, but it does not affect appreciably the strength of parties, and I do not think that it will matter much to any one if the distribution is agreed to. I cannot understand how the Commissioners, could have made any other recommendations. It would be a great public scandal were the report to be put aside, and the old arrangement allowed to stand. The; honorable member for Gippsland made himself acquainted with one or two phases of the proposal, but those who have carefully read the report know that his speech amounted to an attempt to throw dust into the eyes of honorable members, and that by emphasizing a few points, and ignoring - others, he made what was in many respects a misstatement of the case. In accusing the Commissioners of basing their scheme- on conjecture he did them a serious wrong. They have proceeded absolutely in accordance with the law, and in no case have they ignored official facts and figures.
– They have estimated what the population of the States will be at a future date.
– The honorable member gave the House to understand that the Commissioners assigned to one division a number largely in excess of the quota, while the others have assigned to them numbers much below. It is a fact that the “ D “ electorate has assigned to it a number 3,640 in excess of the quota, though that is little more than half the margin allowed by law. The Commissioners state their reasons for this allotment. They point out that the population of this electorate has been steadily decreasing, and that by the time the next election is held, the excess allotted to it will probably have disappeared. At the same time the population of the other divisions is increasing, the tendency being for the numbers allotted to them to increase to the quota. In all these cases the Commissioners have not gone beyond the limits allowed them by the law. They” are instructed to get as near to the quota as possible. They have done so. They have given their reasons for making the redistribution in the way that has been indicated. A great deal has been made of a statement appearing on page 13 of the Commissioners’ report as to “ the impending general elections in 191 2.” It is quite obvious to any one that this phrase is either a printer’s error or a slip of the pen. If the honorable member for Gippsland had looked at the top of page 13 instead of confining his attention to the bottom, he would have seen that the Commissioners point out there that -
It is considered probable that the .figures which will be available showing the actual enrolment for the forthcoming elections next year will prove - and so forth. As this report was written in 1912, “ next year “ must mean 1913, and this passage shows that the statement lower down was a slip. It is regrettable that the honorable member for Gippsland, with that Pecksniffian air with which we in this House are now so familiar, should have gone to the foot of a page to detect what he regards as an error when there is at the top of the same page a line which, if he had observed it, would have put him quite right straightaway. .
– Had the Commissioners any right to consider the matter other than according to the law ?
– The honorable member knows that the Commissioners have a perfect right to arrange, within the limits allowed by the law, for a levelling up of all the electorates at the time of the proposed election
– No, they have not. *
– That they have a perfect right to do so within the limits allowed by the law is perfectly plain, and presents no difficulties at all.
– 1 prefer the opinion of Mr. Duffy, K.C., to that of the honorable member for Perth.
– As against the quoted opinion of a gentleman in Melbourne who, I believe, is regarded as a constitutional authority, I have taken the opinion of other authorities who hold equally as high a position in constitutional matters as the gentleman referred to; and they inform me that there is absolutely nothing whatever in the contention that the Commissioners have gone beyond their powers.. The section dealing with the matter is so plain that even an ordinary layman, may read it as he runs -
In making any distribution of States into Divisions the Commissioner shall give due consideration to community or diversity of interest, means of communication, physical features, existing boundaries of Divisions; and subject thereto the quota of electors shall be the basis for the distribution, and the Commissioners may adopt a margin of allowance, to be used whenever necessary, but in no case shall such quota be departed from to a greater extent than onefourth more and of one-fourth less.
On the first page of their report the Commissioners say that the total number of electors on the Commonwealth rolls of the State as for the. 19th December, 1911, was 151,953. They go on to show that the quota amounts to 30,391. According to the official return supplied by the Commonwealth Electoral Department the proposed subdivision D contained on the 19th December, 1911, 34,031 enrolled electors, or 3,640 in excess of the quota, while the margin allowed them by the Act is nearly double that amount. In what way, then, can they be said to have gone beyond the legal limits of the powers that they are supposed to exercise? They have given reasons why they have given this excess of 3,640, and any one who reads those reasons carefully will see that there is good ground for the case they have constructed. As I have said, the Commissioners want the rearranged divisions to be at the next election as nearly as possible level in their voting strength. Am I to be told by members of the Labour party - by gentlemen who profess to be the champions and upholders of democratic principles and of equal voting power - that these Commissioners have done wrong in trying to equalize the voting strength of each electorate? If that is the ^position which - honorable members opposite are trying to take up, it is entirely different from the position which I understand was claimed, and which undoubtedly was for a considerable time advocated, by the Labour party. Now, however, it appears that they are prepared to accept a state of affairs which gives nearly double the voting power to one portion of Western Australia as against another, simply because the Commissioners who have been authorized to do the work under the Commonwealth law have carefully carried out their instructions, and have made arrangements, in addition, for a decreasing population it; the one case, and an increasing population in the case of other electorates. If, as it will I think turn out, this proposed rearrangement is sent back to the Commissioners with a suggestion for modification, what in all probability will happen? They will have to take the most recent figures available to see whether the case they have constructed should give way or not. 1 believe that there are now in existence figures that prove that the forecast of these gentlemen as regards the voting strength of electorate D is correct, and that that process has “been going on in the way they’ -indicated that it was likely to do. If that be the case, and if the Commissioners find that their forecast is correct, they can but report accordingly to the Government j and it will remain for the Government to show in what respect the Commissioners have erred in making their recommendation. They have undoubtedly done their work well, and thoroughly, and it is for this House to consider very seriously before sending back this particular series of recommendations as to whether there is sufficient reason for the course which honorable members opposite propose to take in this connexion. The Commissioners have dea.lt with the possibility of an addition to D electorate in ‘consequence of work on the transcontinental railway. They point to the possibility of a considerable number of men being required to carry on the work of constructing a railway, and set off this consideration as against the steady decrease in the mining population that has been going on for some years. But there is no likelihood that a very large number of men will be congregated in this electorate to build the railway. At the very most, perhaps a thousand will be required. We are given to understand; however, that several thousands are expected there in a few months. A little while ago - only the other day, in fact - I saw a statement in one of the newspapers, from some one who is superintending the work in Western Australia - I forget whether it was Mr. Chinn or not - pointing out that for a good many months to come there would be comparatively little employment on the line, and that there would be very little grading and levelling work to do. If, as I understand, the Government propose to utilize machinery for that work, there will not be such a large number of men employed after all, and even the anticipation of the Commissioners will have been unduly optimistic. At any rate, I for one have no particular interest in this matter beyond the desire to secure for the next election a result that will be thoroughly representative, and will not ogive to one person who happens to be elected any undue preponderance of voters over another. Moreover, I am anxious to conserve that very democratic principle in which I understood that the Labour party thoroughly believed and had always fought for, namely, an equality of voting strength in each electorate. I feel sure that those who take the trouble to read the report of the Commissioners carefully through will feel that they are unable to do anything less than indorse their recommendation.
.- I regret that so much heat has been imported into this discussion, especially by the right honorable member for Swan. I feel sure that there is no reason why such statements should be made as that honorable members are not going to vote on this question on other than strict lines of justice. I have a lively recollection that some years ago, when there was a redistribution of seats in New South Wales, one of the essential elements in the instructions to the Commissioners was departed from, inasmuch as they did not recognise community of interest. That created a considerable amount of trouble at the time. A similar element is existent in this case. I have given a considerable amount of thought to the subject before us. and have read the report of the Commissioners very carefully indeed. I feel sure, and have no hesitation in saying, that the Commissioners have adopted an absolutely dangerous principle, which this Parliament should not allow to be enforced, in anticipating the position in which electorates will be in regard to population years hence. Their instructions, in accordance with the law, are to subdivide the State into electorates upon the basis of the existing enrolment. Instead of that, they have anticipated what the condition of an electorate will be a considerable time hence. I intend to move an amendment before I conclude my remarks, because I consider that the Commissioners have done wrong in taking into consideration what is likely to happen years ahead. I would’ point out to the honorable member for Perth that what the honorable member for Gippsland alluded to was no printer’s error or slip of the pen on the part of the Commissioners when they spoke of elections taking place in 1912. If the honorable member will turn to paragraph 31 of the report, he will find another allusion to the year 1912. That paragraph appears on page 12 of the report.
– How does the honorable member account for the reference to next year at the top of page 13 of the report?
– I have seen the reference to which the honorable member refers, but I would point out to him that, in paragraph 31, we have the statement -
At the time when the new Commonwealth rolls are likely to be put into practical use, viz., about April, 1912. …
In other words, the redistribution was made on the basis, not of the existing enrolment, but of the probable enrolment when the new rolls are likely to be put into practical use.
– They say that the numbers will then be about even.
– How are they able to make such a prediction?
– Even now, they are within the margin.
– In their report, the Commissioners clearly state that when the elections take place, in 1912 - and if we assume that the elections will not take place until 1913, their case is very much worse - there is going to be a considerable population in a part of the State in which there is practically no population at present. In thus acting, in anticipation of a probable influx of population to a certain area, are they not introducing a dangerous principle? T am glad that the honorable member for Gippsland pointed out that had the Commissioners thus been allowed to proceed with their distribution, in anticipation of the population twelve months hence, Victoria would not have lost a representative. In that case, however, the division of the State into Federal electorates was made on the basis of actual statistics.
– And, undoubtedly, the distribution in the case of Western Australia is based on statistics as to population.
– Let me point out to the honorable member that the Commissioners in this case have acted on the basis of an anticipated enrolment. They state, in paragraph 30, of their report -
There are, of course, always some electors who do not take advantage of the privilege of enrolling themselves, and, therefore, as will be seen, “a slight discrepancy exists between the percentage of those eligible for enrolment and those who have actually enrolled themselves. For the purpose, however, of this report a conservative estimate of 50 per cent, of the total population will be taken as representing the proportion of enrolments at any time likely to appear on the electoral rolls.
I draw special attention to the words “ likely to appear.”
– Will the honorable member look at paragraph 21?
– I have read it.
– Does it not show the basis on which the Commissioners acted ?
– I shall read the remarks made by the Commissioners in another paragraph, and allow honorable members to draw their own conclusions. They state, in the latter part of paragraph 3i-
It is, of course, impossible for the Commissioners to give an estimate of the proportion of the increase that will be attracted to each of the four divisions “A,” “ B,” “ C,” and “E.”
– Yet they act upon an estimate of the proportion of increase.
– Yet they act upon it. In paragraph 33, we have the statement -
The Commissioners are of opinion that their first and foremost duty is to submit such recommendations as will secure in each of the proposed divisions the nearest approach to the quota of enrolment at the time of the impending general elections in 1912.
I submit that their imperative duty was to redistribute the States into Federal divisions on the basis of the existing, and not an anticipated, enrolment. I cannot too severely condemn the adoption of the principle which they have observed. I do not know these gentlemen. They may be well qualified to carry out this work, but I condemn the principle they have introduced, under which they anticipate from facts within their own knowledge that a place at present sparsely populated will be largely populated twelve months or two years hence. How is it possible for any one to say, more especially in regard to a community like that of Western Australia, what the floating population will be three months, let alone twelve months or two years, hence? Experience tells us that if gold is found in any district a rush immediately sets in, and that if the find proves to be a good one, a large and permanent population is established there. I have no desire to repeat the arguments that have already been used, but I feel that an injustice has been done in this case, just as an injustice was done in connexion with a redistribution of my own electorate, which did not have regard to community of interest. My complaint is that the Commissioners have based their decision in this case, not upon the actual enrolment, but upon what they anticipate will be the enrolment twelve months or two years hence.
– The scheme is based, not on facts, but upon imagination.
– On anticipation.
– The honorable member admits that they have kept within the margin ?
– Yes ; but not within the law; and in that view I am fortified by the opinion of a leading barrister in this State.
– The question of the margin of allowance is entirely subsidiary to other considerations.
– There is a number of considerations, such as community of interest, and means of communication, to which, under the law, regard must be paid. The honorable member for Coolgardie has already referred to the double journey that would have to be undertaken in certain cases by electors in the division of Dampier, and he and other honorable members from that State can deal, also, with the question of community of interest. My contention is that the Commissioners have departed from the directions given them under the Act by basing their scheme of distribution upon an anticipated enrolment, instead of the actual enrolment at the time that the scheme was drawn up. I therefore move -
That all the words after “That” be left out, with a view to insert in lieu thereof the words, “ in accordance with section 22 of the Electoral Act the redistribution be referred back to the Commissioners with an intimation that due consideration does not appear to have been given to the diversity of interest and the ab sence of means of communication between the districts of Mount Magnet and Cue and the other portions of the proposed division ‘ D.’ That the Commissioners be requested to make the distribution on the basis of existing enrolment and not by way of anticipation, so as to give each division as nearly as practicable an equal number of electors.”
– Mr. Speaker, may I ask a question?
– In view of the statement that this distribution is not distinctly legal, I should like to ask whether the Minister has taken any steps to ascertain whether the Commissioners are within their legal rights ?
– I understood that the honorable member desired to ask me a question. He is not in order in asking the question he has just put.
– I have listened very carefully, with a view of learning whether any substantial reason could be adduced for sending back this scheme “to the Commissioners, but, so far, I have heard none. The only reason advanced is that put forward by the mover of the original motion, and supported by the honorable member for Gippsland, that we ought not to anticipate movements of population. This, however, is a consideration to which this House has always given the greatest possible weight. In every redistribution the same question has cropped up. The question of the probable redistribution of population has always been a determining factor in the decisions arrived at by this House. ‘Those of us who have been here for some years will recollect the occasion .on which proposals for redistributing the two large States of the Commonwealth were sent back on the ground that a drought was in existence, and that, after it had broken, the location of the population would probably be entirely different.
– But this is the first time that this principle of anticipating the population of a district has been introduced.
– What else was done on the occasion to which I refer?
– But that to which the honorable member refers was not the normal condition ; whereas the Commissioners in this case are prophesying in regard to normal conditions.
– No; they simply say that at the time this redistribution scheme is given effect to the population of a certain division; judging by the movements of population in the recent past, will be so-and-so. I do not see that they are disentitled to take into account the movement of population. For instance, in redistributing two or three very populous centres, in each of which the number of electors was very much over the quota, and likely to develop very rapidly in the near future, surely the Commissioners would be entitled to take into account those facts. Unless they were able to-do so, the electorates would soon be out of plumb again. To avoid anything of the kind, the Commissioners must forecast a little ; they must cut down below the quota, if anything, electorates which are growing rapidly; while, at the same time, they may well keep a little above the quota those electorates which are not likely to increase, and the surrounding circumstances of which indicate that they will not increase. What else are they for, but to consider the chances of changes in the population in the country? That is one of the first points to which they must give consideration. They must consider what the probable increase of population in the district is likely to be.
– How is it that rule was not applied when Victoria lost a member ?
– I do not know. I am not dealing with that point just now.
– It is a very important point.
– If so I am sure the honorable member will look after the matter. If a member is being unfairly taken from Victoria it is very much to be regretted. I hope the honorable member for Maribyrnong will not run away with the idea that I am pleased that Victoria should lose a member. But I do not see the relevancy of his interjection. I pre- . sume that the Electoral Commissioners, could not forecast the possibilities of the case in Victoria or they would have done so.
– The basis was fixed under the law by official figures.
– If the law has been complied with there can be no reason for the Victorian complaint, though it may be an unfortunate circumstance that Victorians, are the victims of the law. Here we are dealing with a case in which the Electoral Commissioners are given a discretion with a big margin within which to exercise it. The margin was made so great under the Act in order that the movements of population, as well as other considerations, might be taken into account. I have said that the schemes for the redistribution of two of the large States were set aside by this House because the honorable member for Hume in submitting the motion dealing with them argued very strongly that the movement of population shown at the time would right itself the moment the drought came to an end, and there would then be no need to raise the question which was raised by the proposals for redistribution then submitted.
– That was only to deal with electors who were temporarily absent from their holdings.
– I remember that controversy on the matter was so keen that Sir George Reid resigned his seat, and was’ re-elected for East Sydney. The schemes of redistribution to which I refer were sent back to the Commissioners responsible for them, for a reason totally opposed to that which is now submitted for returning these proposals to the Commissioners for Western Australia. We are asked to send back these proposals on the’ ground that the Commissioners had no right to anticipate the future movements of the population, and I repeat that it was one’ of their main functions to estimate . the probable effect of the work they were asked to do. If we have heard the real reason for sending back these proposals, it seemsto me that the case of those who support the amendment entirely fails. We should act in accordance with the decision of the Electoral Commissioners, who are impartial, outside parliamentary influence, and had no object in the world but to carry out faithfully the duty imposed upon them. I have the division list before me in connexion with the motion submitted in 1903,, and I find that nearly all my honorable friends opposite voted, to send those schemes back, . because the Electoral Commissioners for the States referred to. had not done what they now condemn the Electoral Commissioners for Western Australia for doing.
– In the last Parliament honorable members opposite left their Minister of - Home Affairs on his lonesome.
– No doubt they did some shocking things which we shall never hear the end of. I am concerned now only in pointing ‘ out that honorable members who wish to send these proposals back because the Commissioners have anticipated the movement of population in a slight . degree, voted in 1903 to send back other proposals to Commissioners because they had not doneso.
– How did the honorable gentleman vote on that occasion?
– I voted against sending the reports back. We should have a better argument than any we have yet heard for the ‘amendment, because the Electoral Commissioners for Western Australia did nothing but what they were entitled to do, and enjoined to do in the terms of their appointment and under the Electoral Act. They were given a margin under which to do the very thing they have done, and which honorable members opposite now condemn. I should willingly vote that any proposed scheme of redistribution should be sent back to the Electoral Commissioners if an obvious and flagrant wrong were proposed, but in this case it seems to me that the Electoral Commissioners for Western Australia have done what the law directed them to do, and we should be without any justifiable excuse if in the circumstances we sent their report back to them.
.- I feel that the procedure suggested is not in accordance with the spirit of the Electoral Act. The proper thing to do is to accept or reject the proposed redistribution. The object of having Electoral Commissioners was that they should inquire into the conditions of each electoral division.
– Would the honorable member not have the House tell them where it thinks they are in error ?
– No; it appears to me that the amendment would be equivalent to the House directing the Commissioners as to how they should perform their duties. What is now proposed is that the Commissioners should be requested to make a redistribution on a certain basis.
– That is in accordance with the Act.
– No, it is not. By the amendment the House requests the Commissioners to do something.
– To do their duty.
– No, the amendment covers more than that, because a special reference is made to particular districts. The words proposed to be inserted are -
In accordance with section 22 of the Electoral Act the redistribution be _ referred back to the Commissioners with an intimation that due consideration does not appear to have been given to the diversity of interest and the absence of means of communication between the districts of Mount Magnet and Cue, and the other portions of the proposed division “D.” That the Commissioners be requested to make the distribution on the basis of the existing en rolment (and not by way of anticipation) so as to give each division as nearly as practicable an equal, number of electors.
– That is asking them to do what the Act provides for?
– We give an expression of opinion, and in the same motion request the Commissioners to do something which amounts to an intimation that they should carry out the opinion expressed by this House. That is not the intention of the Act
– Is there anything in the Act to prevent it?
– The Act provides that-
If either House of Parliament passes a resolution disapproving of any proposed distribution, or negatives a motion for the approval of any proposed distribution, the Minister may direct the Commissioner to propose a fresh distribution of the State into divisions.
According to the procedure we have laid1 down for ourselves there should simply be an acceptance or rejection of a proposed redistribution.
– This is a rejection, withan expression of opinion.
– It is just that expression of opinion which is an interference with the Electoral Commissioners. If the House rejects a proposal for the distribution of a State, even the Minister in charge of electoral matters cannot express an opinion on the subject.
– Surely the honorablemember will admit that we are justified ingiving our reasons for sending the proposed scheme back to the Commissioners.
– Honorable members are individually justified in doing so, but the procedure contemplated in the Act is. that a proposed scheme of distribution should be accepted or, rejected. The idea was to appoint a series of Electoral Commissioners absolutely independent of Parliament to meet and consider the whole of the conditions of a State, and act. in accordance with the law we laid down. They were then to submit their proposed schemes of distribution, which were to be published throughout the several States. Time was to be allowed for receiving objections, and when the schemes were submitted to Parliament it was for either House to accept or reject them. If we reject the Commissioners’ scheme it is for them to make a fresh distribution.
– Does the honorable gentleman not think it would help themif they knew what the House thinks is wrong in their scheme ?
– I think ‘it is their duty to take into account what individual mem- bers think on the subject. Individual members of this House have the right to object to the proposed scheme, and to give reasons for their objection, and the Electoral Commissioners would no doubt in the ordinary way pay attention to those objections, the same as they would to any other objections. But in dealing with the matter in the way here proposed, I think we are asked to express an opinion without complete information. We are asked to reject the proposed scheme for Western Australia as though we each had a knowledge of the whole of the conditions of that State, and we are asked to set our knowledge against that of the Electoral Commissioners, whose duty it was to specially investigate those conditions. If a manifest injustice were proposed it would be the duty of the House to reject such a proposal ; but we are asked in this case to express an opinion upon the question of diversity of interest and the absence of means of communication between the districts of Mount Magnet and Cue.
– It should be Mount Margaret.
– No, Mount Magnet.
– Mount Magnet is connected by rail with Cue.
– Here we have the right honorable member for Swan, who is certainly one of the best-informed members of this House as to the conditions in Western Australia, differing from the honorable member for Riverina. Perhaps the honorable member who moved the amendment can tell me where Mount Magnet is.
– The honorable member can see it on the map.
Sitting suspended from 6.30 to 7.45 p.m.
– As I have said, the spirit of the Electoral Act is that we shall appoint Commissioners, with the desire to, as far as possible, leave the question of the electoral divisions to an absolutely impartial body. Our idea was to improve on the old State principle of the Government forming a series of electoral boundaries and submitting these to the House for approval, by creating a body to deal with the matter judicially. Experience has led us to the conclusion that it is better to have three Commissioners rather than one, and that these three Commissioners should consist of the Surveyor-General, who by virtue of his office and position necessarily knows a great deal of the country, and two other men of equal official position, such as, in some in stances, District Court Judges or State electoral officers. The duty of the Commissionersis to make a distribution of a State, to receive objections and give due weight to. them, and then lay their scheme before the House through the Minister. Of course,, the object is not merely to lay the report on the table, and do nothing more with it ; the Act seems to indicate that it is the duty of the Minister to submit the report; and here I may say that I am sorry the honorable gentleman did not give us any information, but simply laid. the document on the table and left the House to worry through it.
– It is for the Commissioners to supply the information.
– Then I may take it that the Government’s view is that this distribution is not a matter for us to interfere with, but one for the Commissioners whose duty it is to consider the whole question impartially. The section of the. Act contemplates our acceptance or rejection of any distribution ; that, I submit, is the law. Of course, the action taken the other night in regard to the division of another State set a precedent which the honorable member for Riverina is now seeking to follow. That, in my opinion, is a very dangerous precedent, because the law is emphatic in requiring us to accept or reject; and, in the latter case, for the Minister to direct a fresh distribution to be made. The amendment of the honorable member for Riverina practically supersedes the motion ; the House is not asked to approve nor to reject, but to send the report back with a direction. That, I say, is not the spirit, even if it is within the letter, of the law. The scheme of the Electoral Act is not that the House shall direct the Commissioners as to what they shall do. If we are to take any action, it would be better to accept full and complete responsibility, and frame the divisions, rather than attempt to interfere with and try to supersede, the Commissioners in the way proposed. The amendment sets out that due consideration does not appear to have been given to diversity of interests and the question of communication with Mount Magnet and Cue, and the Commissioners are requested to make a distribution on the basis of the existing enrolment, so as to give each division, as nearly as practicable,, an equal number of electors. When we asked the honorable member for Riverina where Mount Magnet is, the only information he could give us was that it is on the map. A representative of Western Australia on this side, when
Mount Magnet was mentioned, said that Mount Margaret was meant.
– He is right, I think.
– Probably so. The honorable member for Riverina has not, I think, that detailed knowledge of Western Australia necessary for him to advise the House as to what action we should take in regard to the division of that State. I would much prefer to see the House, if it disapproves of the division, reject it straight out. The honorable member for Coolgardie did not conclude his speech with an amendment; he evidently thought, and wisely, I fancy, that the proper thing was to reject the proposed division, and have the matter re-submitted to the Commissioners. But the honorable member has stepped in independently and superseded the representatives of Western Australia.. It may seem, Mr. Speaker, more like asking your opinion on a question of law than raising a point of order, but it appears to me a very doubtful action, after we have passed the Electoral Act, for this House, by resolution, to set aside that Act, and lay down its own procedure. The preceding case which we considered was probably still more in conflict with the letter of the Act, though, in substance, the cases are the same. In neither case are we asked to either affirm or reject the report of the Commissioners, but to send it back to them with a request, in the present case, to make a distribution on the basis of . the existing enrolment. How long is this to go on? It is certainly not a proper procedure. We ought certainly to hear an expression of opinion from the Minister of Home Affairs on the proposal to refer the report back with the direction attached. I fancy the honorable gentleman must have great doubt in his mind as to the propriety of the procedure; the anxious look on his face indicates that it is causing him serious trouble. The request or direction contained in the amendment is not a just one, because the Commissioners appear to have taken into consideration the points there mentioned. Their report seems to indicate that they have made a fair endeavour to comply with the conditions of the law ; and in regard to the quota, they appear to have done their duty. Under the circumstances, I submit that we ought to reject the. amendment.
– Victorian members have been twitted with differing from the- Commissioners, although we have not the advan tage possessed by those gentlemen of knowing the distribution of interests and other conditions in Western Australia. If I did not believe the Commissioners to be above reproach, I should have thought they had gone out of their way to make a nice comfortable seat for somebody they knew. I admit that that is a very harsh thing to say, but my opinion is supported by the facts of the case. It seems evident that the Commissioners found it impossible to make a division having regard to complete community of interests. They seem to have tried to keep as much of the mining interests of Western Australia as they could in one division; and, if that had been possible, I could have seen a reason why they thought it accessary to depart from the procedure always adopted in the past in arranging electorates. It is evident, however, that they found this impossible of achievement, and thus we have their proposal now before us. They have departed altogether from the previous distribution, and have apparently gone out of their way to make the division under discussion a peculiar one from the point of view of community of interests. It has been said to-day that in the case of Victoria the report was referred back for somewhat similar reasons to those which have been laid before us to-day. I’ have never yet known, in the arrangements in a State, a country electorate to get more voters than a city or a suburban electorate. No doubt the Boulder and the Kalgoorlie electorates contain very large cities, but in the rest of this country . there are purely mining towns. Away down in the south, of course, there are varied industries or callings. What does seem to me peculiar is that the Commissioners departed altogether from the previous method in redistributing the State. They assumed that the population would decrease, and that to my mind was where they made a great blunder. They had no right, I contend, to assume that division D would lose enormously in population during the next few years. However, that point has been dilated upon, and I do not wish to traverse the same ground again. It has been pointed out that in this division will be concentrated the whole of the work - which will be considerable, of course - associated with the construction of the transcontinental railway. That in itself must lead to an enormous, increase in the population.
– Can you say that the Commissioners did not take that into account?
– We acknowledge that a railway will increase the population in that particular country, especially during the course of its construction. It must attract thousands of men. There is no doubt in my mind that within the next twelve or fifteen months the population of this country, instead of decreasing, will be increased, by the construction of the railway alone, by close upon 2,000 persons. Again, it does not need a sage from Western Australia to tell us that in any part of such an enormous minings district as division D at any time during the next year, or perhaps during the next few months, we may have an enormous increase in population. That possibility has already been stated, and, to my mind, conclusively established. One ‘ reason why I think this redistribution scheme should be thrown out is the fact that even if the Commissioners had the power to assume, which I doubt, that the population would decrease in the future, they showed great want of judgment in assuming that it would decrease within the next few years.
– I will bet the honorable member a new hat that their forecast turns out to be correct.
– Order !
– I am inclined to suspect that the honorable member’s wish is father to the thought. It would be almost impossible for any one man to represent either of these electorates D and E, which the Commissioners have planned out. It is impossible for a man to see the whole of an enormous electorate, though I believe that the honorable member for Coolgardie has managed to get over most of that electorate during his term here. I do not think it would be possible for one man to look after all his constituents. Certainly, the question of accessibility was not considered by the Commissioners in cutting up this State. It has been pointed out very clearly that in some cases a man who wanted to go to the centre of division D for an electoral purpose, would have to travel 1,800 miles in all. The Commissioners have not in any way conformed to the law laid down for their guidance, and I do not see how they can possibly expect their plan of redistribution to give satisfaction to the House. If they had wished their scheme sent back for consideration I do not think that they could have taken a better course than they did to attain that end. I admit, however, that they have endeavoured to. do their work in a manner which would reflect credit on themselves and do justice to the State. They are only human, and quite as likely to make mistakes as we are. Seeing that they as officials know that there is a diversity of opinion on practically everything, I do not see why they or any one else should take umbrage at their plan being sent back, with a special indication from the House as to where they erred.
– So long as no unfair reflections are made upon them.
– I think that the honorable member will admit that I have not done that.
– Yes, the honorable member has accused them of readying up an electorate for some friend. That was a most improper reflection to make.
– If the honorable member had listened to what I said, he would not have made that remark. I stated very clearly that we accepted the Commissioners as honorable men, and that if we did not, we might assume that they had done something for a purpose. The honorable member has accused me of charging these gentlemen with having been guilty of dishonorable conduct, but I have done nothing of the sort. I have been as lenient with them as I possibly could, and merely said that they had erred in their judgment.
– No, the honorable member did more than that.
– Not only did they do that, but they did not take a commonsense view in partitioning Western Australia into electorates. That has already been explained from this side of the chamber. It is very apparent to me that this is to be made a party question by the Opposition. In this, as in all other matters which come before the House, whether it be the colour of a uniform or the shade of-
– We are supporting the Government.
– We have heard enough about those who accept gifts from the Greeks.
– Does the honorable member say that of the vote on the Queensland scheme the other day?
– The honorable member knows very well that that was not a party question with us, because every member of the Ministry crossed the floor, and the Opposition tried to save the position for them.
– You all went together by instinct.
– The Ministry must have come to the conclusion that there was something wrong with this scheme when it was submitted, but they seem to take a peculiar stand on almost every question which originates with officials. They have officials to carry out certain work, and when it is completed they accept their recommendation. I do not think that a responsible Government should do a thing of that sort, because officials can make mistakes. I wish to draw a distinction between the attitude of the present Ministry and that of the Ministry which had to deal with the previous redistribution of seats in Western Australia. We all recollect the sorry plight in which the DeakinCook Ministry ‘placed their Minister of Home Affairs when, headed by the honorable member for Swan, they walked over to the Opposition side and voted “ No.”
– There was no time then to rectify the scheme.
– And there is plenty of time now.
– Yes. I know very well that the Deakin-Cook Ministry wished that the Commissioners had arranged the divisions in Western Australia somewhat differently. I remember the honorable member for Swan remarking here on one occasion that the arrangement suited him personally, but he did not consider that it was right.
– I had some knowledge and experience of the matter, anyway.
– I- am not attempting to lead the House to believe that I would know how to cut up Wes”tern Australia into divisions; but I recognise that there is something peculiar about the way in which Division E has been cut out.
– The honorable member is talking against time, I think.
– The honorable member, of course, does not like my comments. I do not know whether he has his eye on the area of country indicated by a big red patch on the map. From my knowledge of the State, I should imagine that there is no other division which would suit him so well as that one would. He knows what he intends to do, but it certainly looks to me as if he had his eye on that electorate. At any rate, I suspect that there must have been some very nice gentlemen in Western Australia who, looking at the different divisions, said, “ It may be an accident, but here is a splendid opportunity for a politician of a certain bent of mind to get a really nice, safe seat.” At any rate, that is the view I take of the position.
– Is it a safe seat, do you think?
– For the Opposition 1 certainly think it is, and I am strengthened in that view by the very fight which they are putting up for the adoption of this scheme. The Commissioners had no right to placc.4,000 electors in an immense area like division D, which, according to the evidence we have, will increase in population. That is one of the things which satisfy me that they did not know what they were doing when they redistributed the State.
– The honorable member said a moment ago that they did it for a purpose. They must have known that then.
– I am afraid that the honorable member has not been following me closely.
– It is hardly fair to watch this speech too closely, is it?
– I have .said nothing nasty. I hold that if honorable members do justice to their intelligence, they will reject Division D as it is shown there. During the last Parliament I heard the honorable member for Swan say that the electorates should be constituted from the stand-point of community of interest, even if you had to take people out of one portion and go over and take the people out of another portion. That would be much better than the method which was adopted on this occasion.
– A very good plan, too ; but it cannot be done now.
– If there is any portion of Western Australia which is likely to increase in population - that is, outside the city itself - it is Division D. 1 think that the House, in justice to its intelligence, should send the report back to the Commissioners with an injunction as outlined in the amendment. The House will then be able to consider a better and fairer scheme of distribution than that now submitted.
.- The amendment proposes to send back to the Commissioners this scheme of distribution, with an intimation regarding diversity of interests, and a request for a new distribution on the basis of the existing enrolment. I am not aware of any section under which authority is given to this branch of the Legislature, or, indeed, to Parliament, to instruct the Commissioners in any regard ; yet this amendment goes the length of suggesting that the Mount Magnet and Cue districts, and other portions of proposed division D, be dealt with in a certain way. This is a departure to which attention should be directed.
– Is not the power to do this inherent in the House?
– The course now proposed is not contemplated by the Act. Its wisdom is doubtful, because of the partisanship which may be introduced.
– Does the honorable member contend that the Electoral Act limits the power of the House?
– The Act contains provisions setting forth clearly the course to be followed. It contemplates no such interference as is proposed with the independence of the Commissioners.
– Is it not desirable that the Commissioners should know our mind?
– Should they desire to do so, a perusal of the debate will make them acquainted with the views of each honorable member who speaks, and of the feeling of the House collectively. At all events, until the Act has been amended, I do not think that more is necessary or desirable.
Again, section 22 prescribes that when either House passes a resolution disapproving of any proposed distribution, or negatives a motion for the approval of any proposed distribution, the Minister may direct the Commissioners to propose a fresh distribution. We are not asked to disapprove of the proposed distribution, nor are we asked to negative a motion for its approval, though incidentally, as a consequence of passing this amendment, for whose terms there is no excuse or justification, we might be taken by indirect implication to have followed one of these courses. This irregularity may, or may not, be serious at this juncture, but must be taken into account in any future amendment of the Act.
.- I do not know that I shall transgress the rules of debate if I reply to some remarks made this afternoon by the honorable member for Swan’ by repeating what I have already said in this chamber, that I did not canvass anybody for a vote in support of the motion which I moved in reference to the Queensland distribution.- I give that assurance in absolute good conscience. I told the Prime Minister that I would fight the proposal on the floor of the House, and only there, and so impressed were honorable members with the case that I made out that they voted with me.
– They were impressed with the idea that they ought to give the honorable member a vote.
– I thank the honorable member for the interjection, and am sorry that he did not give me his vote. I have suggested previously, and say again, that the best method of distributing the electoral divisions of a State would be for the representatives of that State to meet and settle the matter in conclave. No particular party would obtain any advantage by that method. Each member concerned would take care that the interests of the division which he represented were conserved, and whatever was done would result in no detriment to future candidates. The party opposite is now following the example of the Labour party in taking a plebiscite in regard to candidates. That is going on in Victoria to-day.
– The honorable member must confine himself to the question.
– I bow to your ruling, sir, being one of the most submissive men in the House in that regard. The honorable member for Swan left it to be inferred that the honorable member for Coolgardie and myself have not studied the best, interests of the country. I say that we have, and for this reason : When a member who represents a majority of the electors who voted in his division speaks in this House in defence of their interests, he is consulting the interests of the country. There are on the other side a few members who were returned by minorities
– The honorable member is not confining himself to the question.
– The honorable member for Swan suggested that the honorable member for Coolgardie has taken up an attitude, and advocated a course, which is not in the interests of the country. I say that that is not so. When a minority of a minority says that such and such a thing should be done, the member representing the majority is within his rights in asserting that the interest of the majority should be studied; and the honorable member for Coolgardie is perfectly justified in saying that in the interest of the majority the electoral divisions of Western Australia should be redistributed.
Whatever the Leader of the Opposition says is said in the most courteous way, though on most occasions he takes the wrong position; but in the speech which he just made he was guilty of hair-splitting. He states that the course proposed is not in accordance with the Act ; but he is not consistent, because on a previous occasion he voted for a course which was not in accordance with the Act. The honorable member for Darling Downs has also complained that the Act is not being followed, but on a previous occasion he was indifferent to that. The legal mind sees both sides of a case, but presents at any one time only that side which it then suits it to present, and later puts forward with equal logic the other side. The position of the honorable member for Coolgardie is reasonable and justifiable. He is acting in the best interests of the country, because he is acting on behalf of a majority of the electors who voted in the division which he represents, and the party to which he belongs represents a majority of the electors of the whole country. I hope that the- House will vote with him as they voted with me on another occasion.
– I am sorry that the honorable member for Herbert has taken exception to what I have said. I did not wish to hurt his feelings, but I cannot help knowing that this matter has been talked about.
– The honorable member must confine himself to the amendment.
– The honorable member for Herbert was allowed to refer to what I said.
– The honorable member for Herbert spoke to the main question as well as to the amendment.
– Then I understand that I am not to refer to what be said. I submit that the House has no power to make suggestions to the Commissioners. The law is that if either House of the Parliament passes a resolution disapproving of any proposed distribution, or negatives a motion for the approval of any proposed distribution, the Minister may ask the Commissioners to propose a fresh, distribution. I cannot understand why an amendment should be proposed which is in. contravention ‘of the Act. Honorable members can see the inconvenience of this procedure. We could all make suggestions. I could move that such and such a State electorate should be left out or included; another honorable member- could move something else. But we should then each be attempting to dictate to the Commissioners as to how they should carry out their duties: I hope that no attempt of the sort will be made. Let us act up to the law in any case, and if we do not approve of the proposed distribution, let us negative the motion moved by the Minister, and let him take the course prescribed by the law. The law provides that in such an event -
The Commissioners shall, thereupon reconsider the matter, and forthwith propose a fresh distribution.
That is straightforward. I do not know why the honorable member for Coolgardie desires to take two State electorates out of the green - Kalgoorlie - and put them into the red - Dampier - area on the map. As for community of interest, there is no doubt about it that Kalgoorlie, Mount Margaret, Lawlers, and all these mining districts to the south have community of interest with Cue and Mount Magnet. As for means of communication, the law does not prescribe that it must be railway communication. There is road and telegraphic communication, and therefore there are”, means of communication. I submit that in this matter the electoral law has been, properly, ‘complied with by the Commitsioners. I submit further that the arrange-^ ment” which they propose is completely within the law. . The provision as to community of interest has been . adhered to as well as it can . be ; whilst also the provision as to. means of. communication has been complied with, because there are roads and telegraphs between the places. There are no railways north of Meekatharra right away. up. to Wyndham. Therefore, it may be argued that there is no communication, say, between the Murchison and the Gascoyne. There are certainly no means of communication by rail between the Murchison electoral district, which is a mining and pastoral district, and the Gascoyne to the north. But there are means of communication by road between Cue and Mount Magnet and the northern parts of Western Australia. How can honorable members opposite say, as has been said by the honorable member for Gippsland, that the distribution is illegal? The quota is 30,391. There is an allowable margin ‘with a maximum of 36,469, and a minimum of. 24..3i3-
– Order ! Will the. right honorable member confine himself -to; the amendment before the. Chair? . ;,<v:
– I am trying to argue that this scheme of distribution should not be sent back to the Commissioners.
– The right honorable member started off by saying that he ‘ was going to reply to the honorable member for Gippsland’. The right honorable member had that opportunity when speaking to the main question. .
– The honorable member for Gippsland spoke after me, so that I had no opportunity of replying to him.
– The right honorable member is quite right as to that, but he was referring entirely to the main question. He must not debate the main question now, but confine himself to the amendment.
– The honorable member for Gippsland spoke of the question of illegality.
– The right honorable member must not reply to these arguments now.
– I rise to order. I submit that the very question which the honorable member for Gippsland raised, and to” which the right honorable member for Swan was referring, is involved in the very terms of the amendment. -If the amendment is to be discussed at all, the question raised’ by’ the honorable member for Gippsalnd must be discussed.
– A practice has grown up in this House which was laid down by’ Mr. Speaker ‘Holder, namely, that when an amendment was moved honorable members were allowed to speak upon it and upon the main question. Personally, I did hot approve of that ruling. I thought that when an amendment was moved an honorable member should speak to that amendment, and to nothing else until it was disposed nf. However, the practice which I have mentioned has grown up, and when I was elected Speaker I followed the ruling set by my predecessor. The right honorable member for Swan has already spoken on the main question. The honorable member for Gippsland spoke on the main question this afternoon. Now the right honorable member for Swan desires, in speaking to the amendment, to reply to something said by the honorable member for Gippsland on the main question. If I permitted that, it will be seen that the right honorable member for Swan would be- allowed to make two speeches on the main question, whereas he. is only entitled to make bne. Under these circumstancesI rule that the right honorable member must confine himself strictly to the amendment.
– I shall not reply to the honorable member for Gippsland further, but will deal with the matter in my own way.
– The right honorable member must confine himself to the amendment before the Chair.
– The amendment covers the entire question. It could hot be wider.
– If I am out of order I shall obey the ruling of Mr. Speaker. I cannot understand how it can be argued that this distribution is illegal-. That quota, as I have said, is 30,391.
– Order ! The question of legality has nothing to do with the amendment.
– Do you rule, sir, that I cannot discuss that point?
– The right honorable member must not touch that point.
– Very well, sir ; that is a very good . thing for the honorable member for Gippsland, because’ I should demolish his arguments if I were permitted. -. Shall I be in . order in quoting what honorable members opposite have said on previous occasions . in regard to the redistribution of seats?
– I must wait until I hear what the right honorable member wishes, to. say.
– I wish to quote from a speech by the honorable member for Gwydir on the 23rd November, 1909. He said -
Has it come to this - that in the National Parliament a question of this kind is to be determined by the political necessities of an individual member? If this sort of thing is permitted there is nothing in American politics which we shall not be capable of by-and-by if the present Government remain in power.
The honorable member was referring to a previous Government. That Government is not in power at the present time. But the honorable member for Gwydir is still a member of this . House, and I am very anxious to see how he will act on the present occasion. I am anxious to see whether he will vote in such a way as to assist “ the political necessities of an individual member.” I also wish to quote in regard to this matter the views of the Prime Minister. He said, in 1909 -
I do say that the Government should havea policy in the matter.
Again, the right honorable “gentleman said -
No charge whatever has been made against the capacity or integrity of the Commissioner to whom was intrusted one of the most responsible duties, if not the most responsible, with which a citizen of the Commonwealth could be charged, that of distributing the electors into such groups that they will as nearly as possible be represented in this House on the same basis.
Surely those remarks are applicable to this present case. The Prime Minister went on to say -
I wish to say in the plainest possible language that the members of a Government who lend themselves to that kind of thing are unfit to occupy the positions they hold, because an attempt to manipulate electorates and to take the work of electoral distribution . out of the hands of the responsible officers appointed for the purpose is about the nearest approach to political corruption.
I want to know whether the right honorable gentleman will say that in this House to-day to those who are not voting with him on the present occasion, but who generally support him. I think the time has arrived when he should say so, if he believes in the sentiments which he so eloquently expressed on that occasion.
– The Prime Minister’s words did not alter the right honorable member’s vote on that occasion.
– What has that to do with it ? The Minister of Trade and Customs is fond of interjecting things which have nothing to do with the case. The Prime Minister said also -
I tell the country that no question has been more canvassed quietly in this House than the possibility of blocking this proposal. I regret it. I do not think such proceedings are correct.
The Prime Minister said that when he was in Opposition. Now he leads a Government, and he is as silent as the Sphynx. He was foremost while in Opposition in denouncing what he thought was wrong, but he is as dumb as if- he were “ wrapt in the cold embrace of the tomb,” on a similar occasion when he is in office.
– This is all relevant to the amendment, I suppose?
– The honorable member for Coolgardie does not like it, but he is not master here. ‘ I can only say in conclusion that in adversely criticising honorable members opposite I am not influenced by any personal motives.
– Order ! Will the right honorable member confine himself to the question before the Chair?
– I hope I am doing so. I am quite content that the distribution of electorates should be left to the three upright, and competent Commissioners who have been appointed. If this proposal is reiected, I have every confidence that those gentlemen will again deal with the subject in a proper manner, and I am quite sure that I shall not object to whatever they propose, whether it suits me personally or whether it does not. I hope, too, that public opinion will be aroused by this debate.
– Order ! Will the right honorable member confine himself to the matter before the Chair ?
– Yes, sir. I hope, also, that parliamentary control over the work of arranging the boundaries of electorates will soon be swept away. This system, of which we have had experience in this House during the last ten years or so, has completely broken down. We want a better system, a strong tribunal to do this work, whose decision shall be final. I can only say that I am quite content to leave the matter to the House, though I think that it is, as a tribunal, about as bad an one as it is possible to devise. If honorable members like to send this scheme back to the Commissioners, well and good ; they themselves know nothing about it. I am in the position of knowing something about the position, and so do the honorable member for Coolgardie and the other members from Western Australia, but other members do not.
– I know what the right honorable member’s game is, too.
– What is it then?
– I will tell the House presently.
– I shall be very glad to hear the honorable member. I have no “game” that is not straightforward. The honorable member’s “game” is quite apparent.
– The right honorable member’s game is not only quite apparent, it is transparent.
– I represent in this House 18,933 electors to the honorable member’s 10,306. Therefore, from the point of view of the boundaries of this proposed electorate of Dampier, I have a better right to speak than an honorable member who only represents one-third of the electors I represent.
– The right honorable member never represented 18,000 voters in his life.
– But they were there, and a large majority of those who voted, voted for me.
– The right honorable member did not represent them.
– The honorable member should not make such an astounding and incorrect statement. I fail to see why all this heat should be engendered. I have not the slightest personal feeling, but I have a duty to perform, and have endeavoured to perform it in a straightforward way without mincing matters. I have tried to perform it by seeking to throw some light on the motives and actions of the honorable member. If my statement is distasteful to him I regret it, but cannot help it.
– I shall throw some light on the right honorable member’s actions.
– Why does not the honorable member do it? He has been talking on occasions in this way for the last twenty years, but has not done anything. I have no desire, however, to come into conflict with him, for I know that he is very bitter in conflict and controversy. If our interests clash, as they must clash in this matter, being on opposite sides, let us At least deal with the question from a public stand-point.
– Why does not the right honorable member go for his birth place?
– Perhaps the honorable member, being opposed to me politically, will tell me what else I ought to do.
– I am simply asking for information.
– The interjection is unnecessary, and not very intelligent.
– Order !
– Whatever the verdict of the House may be, I shall try to look upon it with great complacency.
.- The objection has been raised by honorable members of the Opposition that the amendment, if carried, will not express disapproval of the scheme as laid before the House. To overcome that difficulty, I propose to move -
That the amendment be amended by inserting after the word “ be,” line 4, the words “ disapproved of and “ be inserted.
– =1 suggest to the honorable member that he should not move his proposed amendment of the amendment until the House has dealt with the question that certain words be left out.
– Very well, sir.
.- The right honorable member for Swan has succeeded in getting in three speeches on this question. The first he made on Tuesday last; the second, in which he largely repeated himself, was made this afternoon ; and the third, on the amendment now before us, he has just concluded. He has set us such an example in this respect that, eminent though he is in so many spheres, I hesitate to imitate him. Whilst intending to confine my remarks as closely as possible to the amendment, I hope, Mr. Speaker, that you will allow me, at least, by way of personal explanation, to make some reference to the charges which the right honorable member has made against me. Let me say, first of all, that the amendment to my mind is entirely relevant, since the people of Mount Magnet and Cue have distinctly asked that they should not be included in the “ D “ Division. They are the people who are affected by this proposed distribution, and from them the original protest came. That being so, I may be allowed to show why they should not be included in this division. In the first place, they are very remote from the electoral centre to which, under the scheme, they are to be united. They have always been associated, both in State and Federal politics, with the adjacent port of Geraldton, with which they have direct communication by rail. In none of the right honorable member’s orations has he attempted to show that there was any community of interest between the people of Cue and Mount Magnet and those of the far distant city of Kalgoorlie. Nor has he attempted to deal with the important fact that if an elector in those districts wished’ to visit the electoral centre, he would have to travel 1,900 miles, and to use not one, but three lines of railway.
– Row far would the people of Pilbarra have to travel in order to reach their electoral centre?
– The right honorable member, in his interjection, is ignoring the important fact that, as Premier of the State of Western Australia, he united with the adjacent port of Geraldton the two districts which he now wishes to join with Kalgoorlie. The interests of the people of those districts are identical with the interests of the people in another division, from which they have been separated by this distribution. They have no interest whatever, except that of common citizenship, with the people of Kalgoorlie ; nor have they any direct connexion by rail with that gold-field. They have identity of interest, however, with their immediate neighbours near Geraldton, and direct communication by rail with them, and they desire to be grouped in the division in which they have always been. The right honorable member for Swan to-day made several charges against me. The first of these was that I was endeavouring to gerrymander this electorate. I can, of course, afford to treat, with contempt such an unscrupulous charge.
– Order ! I called upon the right honorable member to withdraw the statement, and I ask the honorable member not to- refer to it.
– I desire to show how utterly unfounded the right honorable member’s observation was, because it is not in my power or in the power of this House to gerrymander any electorate. If we decide not accept this scheme it will simply be referred back to the Commissioners, who can then deal with it again as they please. Such a charge comes with ill grace -
– I rise to order. You ruled1 just now, Mr. Speaker, that the right’ honorable member for Swan could not refer to anything covered by the main question. Surely the same ruling must apply in this case. The honorable member for Coolgardie is trying to refer to something that took place during the discussion of the motion.
– If the honorable member for Coolgardie is referring to a statement made by the right honorable member for Swan when speaking to the main question, he is certainly out of order in doing so.
– I have so far strictly confined my remarks to the amendment.
– The honorable member for Parramatta was unjust-
– When he connived-
– The honorable member must not use those expressions.
– I wish only to say that the honorable member for Parramatta remained silent while the right honorable member for Swan was speaking in direct contravention of your ruling, Mr. Speaker. This charge which the right honorable member has levelled against me comes with an ill grace from the “ Kruger “ of Western Australia, who for years kept the residents of the gold-fields without any representation in the State Parliament.
– The honorable member must not follow that line ‘of argument.
– I have no wish to transgress the rules of> the House. I would point out, however, that the right honorable member for Swan had the unparalleled audacity to-day to quote the words of a great Australian-
– Order ! The honorable member is now dealing with a statement made by the right honorable member for Swan when discussing the main question.
– Whilst I have the greatest respect for your ruling, sir, T Would, point out that the remarks to which I am now replying were made by the right honorable member when speaking to the amendment.
– I understood the honorable member for. Coolgardie to be referring to remarks made this afternoon by the right honorable member for Swan when speaking to the main question.
– No. The remarks to which I am now replying were made by the right honorable member for Swan whilst he was speaking to the amendment. It is a piece of his usual audacity, that-, in order to support his case, he should have quoted the words of a great Australian whom he helped into his coffin. That is all I desire to say in. that regard.
– Mr. Speaker,. I am disinclined to interrupt the honorable member; but I think that he ought to be called upon to withdraw his statement and to apologize. He has no right to make the monstrous charge that I helped to put into his coffin an old and valued friend- of mine with whom I was on the most confidential and friendly terms up to the day of his death.
– Order-! I ask the honorable member to withdraw the remark.
– I withdraw the remark, and I regret that I was led by the right honorable member’s bad example into making such an observation’. The legality of the action of the Commissioners has been raised to-night. What I propose to say in respect to this phase of the question is absolutely relevant to the amendment before the Chair. The argument used was that the Commissioners did not outstep the law so long as they observed the margin of allowance. That direction is the last, and not the first, given by the Act to the Commissioners.
– I was debarred’, sir, from touching upon that point.
– Order !
– I should like to point out that the direction as to’ the margin of allowance is second to that in regard to community of interest, means of communication, as well as to the quota. It is only after those paramount statutory requirements have been observed, and every other expedient exhausted, that the’ Commissioners are entitled to fall back upon the margin of allowance. I would draw the attention of the legal members of the House to the subsidiary place occupied by the phrase “margin of allowance” in section 16, and which, I think, proves my contention. The Commissioners read the Act as if this provision as to margin of allowance were a general direction to be followed indiscriminately. This is shown by paragraph 2 of their report, where they refer to the “margin of allowance” and are silent regarding the more important statutory directions. The provision as to margin of allowance was plainly intended to provide for exceptional cases. The words are prohibitive as well as permissive. The Act virtually tells the Commissioners to partition the State of Western Australia into five divisions, containing as nearly as practicable an equal number of actually enrolled voters. It says, in effect, to them, “ Consider first of all whether the- people you group together have community of interest; secondly, whether they have direct means of communication with one another, and when you. are satisfied on these points, consider the quota. The quota you will obtain by dividing the total number of electors actually enrolled by the number of members to be returned. If some obstacle not foreseen by Parliament prevents strict adherence to the quota, .you may vary it; but you are not to vary it by more than onefifth on either side.” That is the answer to the contention that the Commissioners have not erred so long as they have remained within the margin of allowance. The provision as to the margin of allowance is subject to all the other considerations set out in section 16; and it is not until those are all met, and every expedient exhausted, that the Commissioners are entitled to fall back upon it. Then, again, the provision as to margin of allowance is only to be used “ whenever necessary.” That is the literal instruction given in the Act. The onus of proving the “ necessity .” is on the Commissioners. But they have not attempted to show that it was necessary to use :the margin of allowance so as to include nearly 5,000 more voters in one division than in any of the others, nor that any- exceptional circumstances exist which call for such an enormous variation from the existing quota. This is the first time in my experience that Electoral Commissioners have claimed to form divisions by prophetic inspiration. If these Commissioners may look ahead for eighteen months, and distribute the State into divisions, having regard to what they think will be the position of affairs at that time, we may have other Commissioners later on claiming to be able to look ahead for four or five years.
– There are over 4,000 more electors in one division in Victoria than in another.
– Victoria- is in a very different position from Western Australia. There is a settled’ community in Victoria, and it is not difficult to reasonably anticipate the near future. But division D of the Western Australian divisions includes almost the whole of an auriferous area on which a gold-field may be discovered at any time, which would add thousands to the population of the district, and it includes also a portion of the - State where much of the work connected ,with the transcontinental railway will have to be done, within the next twelve months. I do not wish to delay the House further. If I have hurt the feelings of the right honorable member for Swan, I did not intend to do so. The strong language which he occasionally permites himself to use, naturally arouses some antagonism in those whom he so violently attacks. But I cherish no animosity at all, and.T hope that whatever the decision of the House may be, ‘ we shall be as good friends as ever.
– Hear, hear.
.- I wish to say a word in connexion with the amend - ment. It includes the expression “ the Commissioners be requested to make a division on the basis of existing enrolment (and not by way of anticipation).” This language is used to indicate that in the opinion of certain members of this House the proposed redistribution is illegal. That statement has been before the House for some time, and I wish to know from some member of the Government whether, in view of the serious nature of that statement, they have taken the trouble to inquire into it. If the Commissioners have acted illegally, it is only fair, that the Government should give them some intimation to that effect. If they have not done so it is only fair that they should be given to understand . that the. redistribution they have, proposed is quite within the letter pf the law. I hope that before we go to a vote on the amendment, the Government will be able to give us some assurance that they have taken this matter into consideration, and have dealt with it.
Question - That the words proposed to be omitted stand part of the motion - put. The House divided.
Majority … … 1
Question so resolved in the affirmative.
Original question put. The House divided.
Majority … … 1
Question so resolved in the affirmative.
Debate resumed from 19th July (vide page 1070), on motion by Mr. Tudor -
That this Bill be now read a second time.
.- Commendation is certainly due to the Minister for the exhaustive speech with which he introduced the measure, and to the honorable member for Kooyong for keen and elucidatory criticism that should, I think, be, on the whole, rather helpful to the Minister. What I have to say will, as’ far as possible, keep clear of the ground coveredby the two preceding speakers. But the fact that we are the representatives of an island continent, some 14,000 miles distant from the island centre of an ocean Empire, dependent, in peace and war, for commerce and prosperity, on the sea, should stimulate our interest in the class with which this measure chiefly deals. It is comforting to remember that the legislation, of the last twenty-five or thirty years, instead of being directed, as most of the legislation of the middle part of the last century was, towards strengthening the capitalistic interest, is now chiefly directedtowards the comfort and general conditions of the men who man those vessels. If the great ocean Empire of which we are a part is to retain and maintain what is still its supremacy, not only in commerce but in defensive power, in reserve of defensive strength, it must be by making moreattractive for the men who should man our navies, the conditions of the mercantile marine. It is somewhat reassuring to findfrom one of the shipping returns in the Economist that, taking British battleshipsand battle cruisers only for comparison with any possible combination against the Empire - I say possible combination, for we hope there never will be any occasionfor the gauntlet being thrown down by either side in these industrial times - and taking what is considered by the experts as the test of effective strength, namely. battle-ship tonnage, the British vessels total 938,655 tons, against the combined tonnage of the Triple Alliance of 664,761 tons. I find also - which is a matter that we should bear in mind in dealing with navigation - that in studying matters that required amendment in the British laws for the purpose of increasing the manning of the British Navy, the Board of Trade Committee, of 1903, said -
We think that an increase in the number of British seamen in the mercantile marine may be looked for rather in the improvement in their conditions than in the increase of facilities for training boys at sea.
The “improvement of conditions “ has been marked in the Act of 1906 in England, and, I believe, in the operation of it, with very great success.
– I referred to that.
– The Minister did; and I am pleased to notice that this view is supported by some statistics published about eighteen months ago by an authority on commercial and naval matters in the Old Country. The fact is, and we must all be conscious of it, that there is a movement abroad, more likely, to my mind, to be successful than any sudden and angry revolution in industrial and social affairs, towards a recognition . of the necessity for a full realization of the proper proportion between effective effort and reward ; and if that happens to place on a higher plane of comfort and competence the men who for many generations have made us, in our romantic imaginings, masters of the deep, the world will, in the long run, be all the better for the change. Coming to the Bill, I think the chief end aimed at includes a fair standard of wages and conditions for officers and men, and I acknowledge that this may necessitate, to some extent, the protection, if I may call it so, of our coastal trade. We cannot allow the happier conditions of the last two or three years to be interfered with from outside, if protection against that interference is really necessary. To take only two figures by way of comparison, I find that the wages of Australian able seamen are now ; £8 per month, as against£4 5s. for seamen on ocean-going vessels; while Australian firemen receive £10 per month, as against £4 10s. and £5 paid to oceangoing firemen. The only question with me is: What is the volume and character of the competing vessels, and to what extent is the protection that we are introducing necessary to maintain the local conditions? I merely state the position, because, owing to the limitation of time, I do not propose to elaborate on it. So far, then, as regards the men who are to be our chief consideration. At the same time, we ought not to unduly hamper Australian vessels. If we do so, we may, to a large extent, diminish the wages fund out of which the seamen’s wages are paid, and also diminish the possibility of meeting the fair demands the limits of which at present have not been reached. We must progress as we go on. The Bill, to a certain extent, is challenged by some on the ground that there is an unnecessary hampering - I merely state this criticism, which has been levelled against the measure - of some of the shipowners by the provisions in relation, for instance, to greater accommodation, on which the honorable member for Kooyong dwelt, more frequent surveys, lower loadlines and winter load-lines all the year round for both local and external commerce, manning ana other matters I need hot mention. Four points mentioned by the honorable member for Kooyong had reference, I think, to manning, load-lines, survey, and wireless telegraphy ; and these alone will involve, if carried into effect, an additional annual outlay for the ships covered by the Commonwealth Steam-ship Owners Association of £111,000.
– Is not wireless telegraphy a kind . of insurance for the shipping companies ?
– To some extent it is; I am merely dealing with the conditions laid down in the Bill, which are much harder than the conditions under, for instance the United States Act. Subject to these prime conditions, which have one end in view, we ought to aim at Imperial uniformity in both law and operation. That was the object sought to be attained by the Navigation Conference of 1907 ; and I should like, if I may, to read the following from the despatch of the Honorable Alfred Lyttelton, dated 8th March, 1905, suggesting that Conference to consider -
The legal and constitutional questions concerning the scope of the powers enjoyed by Colonial Legislatures under the Merchant Shipping Act 1894 ; and, secondly, the practical inconvenience arising from divergent legislation of the Parliaments of the United Kingdom and the Colonies.
Those were two objects from the Imperial point of view. Three years afterwards. Earl Crewe in his despatch to the GovernorGeneral, Lord Dudley, dated 3rd September, 1908, said -
I trust that your Ministers will concur with me in thinking that legislation respecting vessels engaged in the intercolonial trade, which are not registered in the Commonwealth or in
New Zealand, and which do not engage in the coasting trade of either colony, should be determined upon by mutual agreement between the Commonwealth, New Zealand, and His Majesty’s Government, and should be passed by the Imperial Parliament.
That was mutual agreement on what ought to be - assuming that we have fairly comprehensive powers for local purposes, as the Imperial Parliament has for Imperial purposes - the lines that both local and Imperial legislation ought to follow. The suggestion was that those lines should be embodied in an agreement to be passed by the Imperial Parliament, and capable of adoption or rejection by us. What does this mean to the Imperial Government ? I have looked up a few figures concerning our trade, and I shall put them before honorable members, again mentioning that Earl Crewe said in his September despatch of 1908 -
But it will be apparent to your Ministers that His Majesty’s Government’s power qf negotiating will be- destroyed unless the self-governing Dominions and the United Kingdom have the same standard for oversea shipping.
And he points out - I shall not quote the document at length -
Foreign countries might retaliate by requiring different standards of equipment for vessels registered in the Dominion.
More recently, in connexion with the Imperial Conference, fears of retaliation against the United Kingdom were also expressed and dwelt on. There is no doubt that if retaliation is ever induced by any legislation of ours, the commerce of the Empire affords a magnificent target. This was admitted by the Times in writing upon the subject of Imperial Tariff Reciprocity, towards the consideration of which discussion I contributed in 1904. The writer in the Times says that if foreign Governments desired to retaliate “ by hitting at our shipping industry, it must be confessed that it offers a noble target.” That is the qualification of a writer supporting Imperial preference if his doctrines were to become matters of legislation. I am merely asking honorable members in all cases to consider whether it is worth while to indulge in the remedy, and if the remedy is likely to be effective. Last year the carrying tonnage of the world was, I think, about 33,000,000 tons. The figures for the United Kingdom are 11,556,000 tons - a pretty big tonnage for that little centre of a mighty Empire. The Colonies and Dependencies have 1,806,000 tons, not very far short of the tonnage of that great Power, Germany, which has 2,903,000 tons; so that about 34.3 per cent, of the world’s tonnage belongs to the United Kingdom. The British tonnage cleared at foreign ports is more than double that of the foreign tonnage cleared at British ports; 54 per cent, of the Atlantic tonnage, and 29 per cent, of the European tonnage, are British. The British tonnage engaged in the trade of India, as to which Mr. Harcourt put in a special plea in connexion with this legislation at the last Conference, was 78 per cent. ; in South Africa, 83 per cent. ; in Australia, 74.9 per cent. ; and in New Zealand, 96 per cent. So far as protection to British tonnage is concerned as regards New Zealand, it would seem to me to be almost wanton to do anything to induce retaliation. My request is that we should consider the effect of our restrictions, and the probable efficacy of the methods we adopt to give greater protection to our local trade, remembering always that the maintenance of Britain as a world Power depends upon her mercantile marine, of which the Imperial Navy is but the symbol of its strength; and, of course, as the telegram just mentioned states, is nothing more than a defensive assurance. One might almost say of Britain what Byron said of Venice, that she is “ a ruler of the waters, and their powers,” and if her greatness as a world Power is ever to be impaired, I firmly believe that, depending as it does upon commerce, it will fall as it rose, with the merchant Navy. I might quote from what Mr. Lloyd George said at the Imperial Conference of 1907 on the question of the coasting trade of the world, the figures for which I have here, and the extent to which we really have to fear competition, or that reciprocity is not granted or is granted. He pointed out that the bulk of the foreign shipping engaged in our Imperial trade is Norwegian and German, and that neither of these countries excludes us from the coasting or Imperial trade. We have had various proposals recently introduced for the protection of British ship-owners and producers, some of them at the last Conference. This was the tenor of one motion which was proposed, and on being amended became the operative resolution on which the Empire Trade Commission has been appointed. I am not going to do more than mention that they are carrying out the policy declared by us in 1907, when the Royal Commission reported and asked that certain subjects should be submitted to the Imperial Government, amongst others the desirableness of extending preference to British ship-owners and British producers. It is in reference to these suggestions that my remarks up to the present time have been directed ; but I would like to mention that without any preference of that character in our navigation laws, wages have risen a good deal within the last two or three years. When the recommendation was made in 1907 for this to become a matter for Imperial legislation, the seamen were getting £6 10s. a month, whereas now they get £8 ; while the firemen who were getting £& 10s. a month get now £10, without any of this class of preference. If we are to have uniformity it must be Imperial ; and without that Imperial uniformity, we are told by the Ministers in the Old Country that they cannot do very much to extend the international reciprocity which has to some extent been the result of ‘ negotiations since the Imperial Act of 1906 was passed. As regards the present position, I may say that there are Imperial powers, Dominion powers such as the Commonwealth and State powers, all of which more or less clash as a matter of scope and as a matter of operation ; that the Home advisers take one view of our powers, that our local advisers on some points take another view, and that it can be clearly shown that neither of them is right, because I will prove that the Home advisers on some points are wrong. First, let me say a few words as to what are the probable powers of the Commonwealth under which we propose to pass this Bill. These powers must be derived either from the Merchant Shipping Act of 1894 or from the Commonwealth Constitution, or from both. I am now dealing with the Commonwealth powers at present, and they are not exhaustive of the powers on this side of the world. When the Navigation Acts were repealed in 1849, according to some writers - including Mr. Garran, I think - we had power which was not restricted by any Imperial Act to deal with navigation that is within territorial limits. But, in 1853, the Customs Consolidation Act reserved the coasting trade of British Dominions in Asia, Africa, and America for British vessels, and that imposed a restriction on our powers to deal with the coasting trade which was removed by the Merchant Shipping Act of 1854, and an Act of 1869. That Act contained a provision empowering us to repeal certain’ provisions of the Merchant Shipping Act which otherwise extended to us, and, in 1869, we got power to deal with the coasting trade.
– Have we not power to specify in the Bill that British seamen only shall man the ships?
– Not to the extent that is taken in this Bill, as I shall endeavour to explain. The coasting trade power of 1869. which was re-enacted in the Act of 1894 by section 736”, entitle us to regulate the coasting trade subject to certain conditions, namely, that the Act must be suspended for the Royal assent and- come into operation when it was proclaimed in the Possession ; that all British ships were to be treated alike; and that the law was not to affect certain rights granted by treaties in existence prior to 1869, and only a few of which, I believe, still survive. These provisions were re-enacted, and are now sections 735 and 736 of the Act of 1894. Section 735 gives us power to repeal certain provisions of the Merchant Shipping Act in relation to ships registered in Australia; section 736 gives us power to regulate the coasting trade ; whilst section 264 gives us power to apply to any British ship registered in, trading with, or being at any port in the Possession, any provisions of part II. of the Merchant Shipping Act of 1894 which would not otherwise apply. In other words, a complete code was framed by that Act. I am only dealing with the three main sections which affect us. We got, under section 735, power to repeal some provisions, under section 264 power to bring into operation other provisions which did not otherwise apply to us, and under section 736 power to regulate the coasting trade ; but the point as to whether our regulation of the coasting trade could be extra-territorial or not before the Constitution is a matter of doubt. Some of the writers for the Colonial Office and for the Board of Trade think that it had an extra-territorial operation, but that matter is somewhat doubtful, and is not material, because it is now affected, I believe, by covering clause 5 of the Constitution. I aft dealing with doubts, because I am going to suggest difficulties we are in as regards our legislation. It is also doubtful to what extent we can supplement the British Merchant Shipping Act - to what extent Mr. Keith says in his recent work and some of his late articles on the merchant shipping legislation, and Mr. Garran dwells on the same matter - as long as our provisions are not inconsistent with provisions of Acts of Parliament extending to us expressly or by necessary intendment, legislating in the way we are given express power to do by the sections to which I have referred. It is also doubtful whether the Commonwealth is a British Possession within the meaning of the Merchant Shipping Act of 1894, because, if it is not a British Possession, we cannot legislate under that Act. What can be said on that point ?
– We can use our own legislation.
– I shall come in a minute to our other powers. I am dealing at present with one possible source of our power. What I want to prove is that we are in a bit pf a fix, and that there is only one cure - some arrangement with the Imperial Government as to the whole aim of our maritime power.
– It opens up a peculiar phase if we are not a British Possession.
– lt is an important matter, and I am sure honorable members will excuse me if I refer in detail to what really is more law than matter of direct policy. What is the present law ? This is a matter which concerns, not only us, but the Imperial Government, and our policy may be affected by what are our probable powers. Section 18 of the Acts Interpretation Act of 1889, an Act of the Imperial Parlia- ment, governs the interpretation of the Merchant Shipping Act. It declares in regard to Dominions under a central Legislature that where part of such Dominions are under both a central and a local Legislature, all parts under the central Legislature shall for the purpose of this definition be deemed to be one Colony. This being a British Possession, it would appear that the States have no power, because we are the central authority; but I do not think that that is so. It seems clear that both are not likely to be British Possessions within the meaning of the Act, and there is a doubt on the point, because in the Kalibia v. Wilson case, Mr. Justice Isaacs said -
Whether the Commonwealth is a British possession for the purposes of section 775 is a ‘ question I have not considered.
When Mr. Justice Isaacs says ^at he has not. considered a question, but suggests that it may be a moot point, it is time to ascertain the meaning of “ British Possession “ in this regard. If we cannot supplement the legislative powers to which I have referred, being a British Possession, some of the provisions of the Bill are ultra vires, such provisions, for instance, as those of Part IV., which apply to all ships, British and foreign. Clause 190 says that all ships shall be liable to inspection and survey ; and clause 196, to re-survey every six months ; but section 271 of the Imperial Act does not provide for the yearly survey of non-passenger vessels.
– Does not the honorable member think that, in view of the recent Titanic disaster, the British Legislature will pass more strict and drastic legislation?
– I do not think that the Titanic disaster will affect what is done. A great deal of the newspaper criticism of the Board of Trade did not amount to much. The Board of Trade regulations were framed a few years ago, when %’essels did not exceed a maximum tonnage of 10,000 tons, but since then there has been a . very rapid increase of tonnage. There still exists great difference of opinion as to whether human life will not be better preserved by improving the methods of preventing vessels from sinking than by insisting on the provision of more boats. Our legislation may be repugnant to other provisions of the Act. Section 377 provides that a certificate cancelled in the Commonwealth and re-issued by the Board of Trade is not to have effect in the Commonwealth. That may be ultra vires. During the last few years the representations of the Board of Trade in regard to our proposals have been met to some extent. The New Zealand Bill of 1909, which I think did not receive the Royal assent before 191 1, paid more heed than does this legislation to the principles which should operate in accordance with the Imperial suggestions, and the declaration ‘ of the Imperial Conference of 1907 that our local laws should provide for vessels registered in the Commonwealth when trading therein, and for vessels wherever registered when trading on the coast, but not to foreign vessels not trading in the Commonwealth. The forty or forty-five original points of difference between the Commonwealth and the Board of Trade have, it has been stated by the Minister or by the honorable member for Kooyong, been reduced to eight or nine. There is still, however, divergence between our proposed legislation and the Board of Trade view. I have mentioned the different powers that operate. The Australian power is divided between the Commonwealth and the States. The Imperial law authorities have taken a view that is not on all points correct. Lord Crewe has stated that view in these words-
Law officers and other distinguished lawyers advise that the Parliament has only powers of legislation so to override the provisions of the Merchant Shipping Act of 1894 as are given by sections 735 and 736 of that Act, and that the effect of section 51 and section 98 of the Constitution of the Commonwealth is merely to confer upon the Commonwealth power of legislation in navigation matters paramount to that of the State Parliaments, but that these sections do not in any way extend the legislative power of the Commonwealth beyond the powers previously exercised by the State Legislatures.
That is incorrect. The Commonwealth has not power to override the legislation of the State Parliaments in navigation matters within their own sphere, because this is not a concurrent power. The sections of the Constitution which are relevant to this discussion are 51 (1), 98, 39, covering clause 5, and section 76 (3). Section 51 deals with trade and commerce with other countries, and among the States. Under section 98 the power of the Federal Parliament to make laws with respect to trade and commerce extends to navigation and shipping. Section 39 deals with matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any Department or officer of the Commonwealth. Covering clause 5 says that the laws of the Commonwealth shall be in force on all British ships whose first port of clearance and port of destination are in the Commonwealth. Section 76 deals with the judicial department of the Constitution. The Parliament may make laws conferring jurisdiction on the High. Court on any matter of admiralty and maritime jurisdiction. As to the trade and commerce power in the Kalibia v. Wilson case, it has been decided that the Commonwealth power does not extend to the purely internal coasting trade. Some of the local text writers thought that it did ; but I had not much doubt about it. I was afraid that our Seamen’s Compensation Act would not be valid, and, when dealing with the Judiciary Bill a year ago, threw out a hint that probably many of the provisions of the Navigation Bill would be found invalid for a similar reason, lt is a difficult matter to determine, and lawyers may honestly differ about it. What the Court said was that section 98 does not enlarge the ambit of the commerce power, or do anything more than explain the meaning of the words “trade and commerce” as applied to powers within that ambit; in other words, that “trade and commerce” includes navigation and shipping. In Canada navigation and shipping is a general power. So the Seamen’s Compensation Act 1909 was declared invalid, because it dealt with both Intra-State and Inter-State trade. In the opinion of the majority of the High Court the provisions of the Act were not severable. I was Attorney-General at the time the measure was passed. It was quite right as originally drafted, and as it passed from my hands; but it was re-drafted afterwards, on a request to widen its scope, and it was thought that an opportunity for severance would be given by the Court. But there was a good deal of reasoning in the decision of the majority of the High Court that the provisions were not severable, and. of course, one must do his best ‘ in such matters. In the United States, Acts dealt with traffic on railways, and included provisions as to employers’ liability and arbitration. The employers’ liability provisions of the Act of 1906 were held to be invalid for the same reason as our Seamen’s Compensation Act was held to be invalid, because it dealt with purely domestic or Intra-State trade, whilst the commerce power is Inter-State. Accordingly, the provisions were knocked out, and the Act was held to be not severable. In the following year, in the case of Adair v. United States, U.S.R. 208, at page 178, the Court said that if the provisions had been expressed in a detachable section, so that the Court might have severed diem, it would have been valid. That referred to employers’ liability, which, of course, is cognate to our Seamen’s Compensation Act, which, as honorable members are aware, dealt with employers’ liability. So that, according to the United States decision, with which our High Court agreed, if you do under our Inter-State power pass an Act dealing purely with Inter-State trade, that Act is valid. The United States law, however, is different in respects from ours. Their power is wider than ours. Under their power to deal with external commerce, they have passed extra-territorial laws that, t believe, would be beyond our powers. In the United States, it must be remembered, there is no superior Parliament outside Congress. Therefore, from necessity, they were forced to deal with external commerce in a manner covering something more than our commerce power covered. But in the case of Lord v. Goodall - Nelson and Perkins, 102 U.S.R., p. 541 - the Court, in effect, stated that the external commerce power extended to vessels engaged in the transportation of goods and passengers between ports or places in the same State, but part of whose course between ports was on the high seas. To quote from the case the Court said -
Tn every just sense she was, while on the ocean, engaged in commerce with foreign nations, and, as such,’ she and the business she was engaged in were subject to the regulating power of Congress.
In addition, in the United States they have an Admiralty jurisdiction which we have not. There the Admiralty jurisdiction is both judicial and legislative. It extends to all transactions of a maritime nature on navigable waters of the United States, as well as those on the high seas. It does not extend to inland lakes wholly within the limits of a State and wholly unconnected with the navigable waters of the United States. In other words, it extends to any waters that, by themselves or by connexion with other waters, form a channel of commerce between States, or with foreign countries ; but it does not extend to any waters purely within particular States, and which cannot become water-ways between States or foreign countries. A writer on this subject, Willoughby, mentions that -
The Federal Admiralty jurisdiction being wholly independent of the power to regulate Inter-State commerce, and attaching whenever the cause of action has arisen in navigable waters, jurisdiction extends ‘over all cases arising in navigable waters, even though they be wholly within the confines of a particular State, provided that they be links in a chain of commercial communication between States.
In Australia, the Admiralty power ‘is not legislative. It is purely judicial. It is not, at present, exercised by the Commonwealth at all. Our High Court has no Admiralty jurisdiction. The Colonial Courts of Admiralty Act t.890 invested British Possessions with .power to declare any of their Courts Courts of Admiralty. That power was exercised by all the States of Australia except New South Wales and Victoria ; but I think New South Wales and Victoria came into line by Order in Council in May, 1911. So that now all the States have established Vice-Admiralty Courts, all of which are. I think, connected with the Supreme Courts of the States. But we as a Commonwealth - I believe I am correct in this - have not exercised our jurisdiction under section 76, sub-section 3, of the Constitution by vesting in any of our Federal Courts Admiralty jurisdiction. We can do so, and we can make the power exclusive. But we have done neither. Even if we did choose to invest a Federal Court with Admiralty jurisdiction, our power would only be judicial. What it might extend to in case we exercised the power would be subjects of this class - claims for damages done or sustained by a ship ; questions of title in cases of possession, salvage, &c. ; claims for salvage and towage ; claims for necessaries to foreign ships ; relations between officers and crews ; wages under contract wholly or in part performed at sea ; repairs and possibly insurance. What the law is within those limits, assuming the general maritime law to be the basis of the system, depends upon what has been received as law in the usages of this country; and I will give a quotation from the Kalibia case on a question of Admiralty jurisdiction. It was urged by counsel on one side that the Commonwealth Act of 1909 was valid. Mr. Justice Barton, at page 704 of the report of the Kalibia case, summed the matter up in these words -
Whatever might be the force of the reasoning of those cases, if Australia were in the same position as the United States at the time of the making of their Constitution - namely, that of a separated nation of independent sovereignty in its relation to the United Kingdom - the reasoning has no force here, where the implication from imperative necessity cannot be drawn. The power to legislate on matters of Admiralty and maritime laws, if it existed in the several States at the time of Federation, remains reserved to them by force of section 107 of the Constitution. But there would be, and there is, an over-riding power to legislate on the subject in the Parliament of the United Kingdom, and the grant in section 76, sub-section 3, cannot be construed as an implied transfer, or even delegation of that legislative power to the Parliament of the Commonwealth in respect of Australia. Such an- argument, as will easily be seen, differs radically from that on which the- American cases were decided, for the necessity on which they are avowedly stated to be founded does not exist here. The power is merely given qua the restricted subject-matter to which it is in terms confined, namely, the confirmment of jurisdiction in a particular class of controversies.
That is a power which, as I have said, we have not yet exercised. I will make one other quotation from a law report, and that is from a Court of Appeal judgment on the question of what is English jurisdiction. In the case of the Queen v. The Judge of the City of London County Court - I. Queen’s Bench, 1892, page 272 - the judgment of Lord Esher said -
Mr. Justice Story, whom I may venture to call an exceedingly great judge, in one of the most learned judgments which could be pronounced, went through every case which could be found anywhere from the earliest time, and he asserted for the Admiralty Court the largest jurisdiction which that Court had ever claimed. He held that in America, at all events, that Court had jurisdiction, not only over every tort committed on the high seas, but over every contract which is to be wholly or partly performed on the high seas. In that particular case hs held that the Court of Admiralty had jurisdiction over a policy of insurance, and that a policy of insurance in respect of ships or goods could bc enforced by it. It is undoubted that no such jurisdiction has ever been even attempted in England. Now, I do not think the judgment of Mr. Justice Story has been adopted to any thing like its fullest extent even in America I am inclined to think that American Judges have since flinched from it, and that the American Courts do not attempt to exercise such a jurisdiction. But that judgment has been treated in one way only in this country. It has always been said that it is a departure by the American Courts with regard to- the jurisdiction of the Admiralty from what has been held in England.
I shall now pass on, simply stating that, in addition to the matters I have mentioned as falling within our legislative powers, under the heading of “ Admiralty,” freedom of navigation between the States by connecting rivers might also, in the opinion of some, be covered by it. Covering clause 5 of the Constitution declares that our laws are to be in force on all British ships whose first port of clearance and whose port of destination are in the Commonwealth. The High Court will probably soon determine what is a port of destination. The question has not yet been decided. It was raised in the case of the Merchant Shipping Guild v. Archibald Currie and Company, reported in 5 C.L.R., page 757, but was not decided. The seamen concerned in that case were discharged, and the voyage ended, not in the Commonwealth, but in Calcutta, so that the case was decided on other grounds. In the action of the Merchant Shipping Guild v. The Colonial Sugar Refining Company and two other companies, which I need not mention - it is known as the Fiona case - a case was reserved by Mr. Justice Higgins for the opinion of the High Court. After hearing arguments, the Court reserved its judgment, but intimated a few days ago that it desired that the matter should be reargued before the Full Court on the return, I suppose, of Mr. Justice O’Connor. The question of what is a “ port of destination “ is, therefore, still undecided. The matter concerns us, inasmuch as we do not know whether a voyage commencing, say, in Sydney, and extending to the islands of the Pacific, to Auckland, and back again to Australia, with several intermediate clearances, would be within covering clause 5 of the Constitution as a voyage having its first port of clearance and its port of destination in Australia. In New Zealand, the question of our power - not under a covering clause, because there is no such thing in connexion with the New Zealand Constitution - to deal with similar condi tions by arbitration was decided in the case of the award of the Wellington Cooks and Stewards Union, reported in 27 New Zealand Law Reports. In that case there was a majority decision based on different grounds; but I think that the Chief Justice of New Zealand decided that the legislative power of New Zealand - which, being a unitary State, has all the powers that the States and Commonwealth have here - in respect of navigation and all other matters extended to ships registered in New Zealand, trading in New Zealand, and owned by New Zealand citizens ; that a. voyage such as that which I have just mentioned would fall within that power, and that the arbitration award held outside the territorial limits. That judgment has been questioned. It has been cited, I think, in the Fiona case, and it affords another instance of the want of uniformity* in the operation of the laws of the Empire. Let me shortly summarize, not what the law is, but what I think is the position as regards our power. First of all, the Merchant Shipping Act probably applies to the Commonwealth. If it does, we have power, under section 735 of the Act of 1894, to repeal wholly or in part any of the provisions of that Act. except those of Part III., relating to emigrant ships, in respect of ships registered in Australia. An Act repealing any of those provisions would have to be reserved for the Royal Assent ; -and, assent being given, there would have to be a proclamation. We cannot, however, repeal any of the provisions hi respect of State-registered ships plying within the State sphere. That is an important matter. I may mention to the Minister of Trade and Customs that I do not think we have power to bind the ships of a State. I notice that there has been a telegram on the subject published in the press.
– On what ground? On the ground that they are State instrumentalities ?
– Yes, possibly; apart altogether from the question of State registration. Secondly, if the Merchant Shipping Act applies, as I think it does, to the Commonwealth, we have power under it to regulate the coasting trade between State and State or in the territories of the Commonwealth.
– Including Papua.
– Yes. We have power to regulate the trade of, for instance, the Northern Territory, or the waters of the Territory, because our powers in respect of those waters are exclusive of those of the States. Our powers in this regard are subject to the equal treatment of all British ships, and to the privileges granted by treaties before 1869. That is the position under the Merchant Shipping Act. Laws so passed are extra territorial under covering clause 5 of the Constitution. I think that that covering clause applies to all our legislative powers wherever derived. Under section 264, we may apply any of the provisions of Part II. of the Merchant Shipping Act of 1894, which otherwise do not apply, “ to any British ships registered in, trading with, or being at any part of that possession.” That would have effect throughout the British Dominions. In other words, we have power to make extra-territorial laws for specific purposes. Then, again, the Constitution gives us power to make laws in respect of trade and commerce between the States and with other countries, and in the waters of territories. The question of what power arises as being incidental to external commerce is not clear, but my opinion is that our power probably ceases, for external commerce, outside territorial limits. Unless that be so, our legislation would clash with, the Imperial Acts, and w.e have to take that into account when considering the meaning of a doubtful section. The commerce power of the Constitution includes power to keep the waterways open and safe from any obstruction by the States or otherwise. It also includes power to improve them for navigation. I come now to the position of the States. They have power, I think, to regulate Intra-State trade, with no extra-territorial operation by Act. Some think there is of necessity an extra-territorial operation; I merely say that the matter is doubtful. An important point is that the power under the Merchant Shipping Act of 1894 is not substantially affected by the Commonwealth Constitution. Which law is supreme, if they clash within respective spheres, is not necessarily determined by section 109 of the Constitution. That section provides that where there is a conflict between the law of a State and a law of the Commonwealth, the Commonwealth law shall be supreme; but the important point is that the Commonwealth laws must be laws passed under the Constitution. On the passing of this Bill there will be an Imperial Act, the scope of which, in relation to Commonwealth and State legislation, is doubtful; a Commonwealth Act covering a limited external and a limited local field of jurisdiction; six State Acts different in territorial scope and provisions for territorial purposes; and, under section 264 of the Merchant Shipping Act, for extra-territorial purposes. Further, there will be in the Courts of the States, though there is not yet in the Commonwealth Courts, Admiralty and State Admiralty jurisdiction. We shall, in the operation of the measure, have a conflict with Imperial conditions, foreign conditions, and with New Zealand legislation, because their Acts do not dovetail into ours. For instance, a vessel coming from New Zealand in our coasting trade would be bound by arbitration awards and Australian rules under the Bill, and also by the rates under the New Zealand Act. The rates under the New Zealand Act may be higher or lower than ours, and the question will arise as to which are to be supreme within the territorial limits. Some provisions, such as section 291 of this Bil], as to an agreement to deduct excess that may be paid under local laws, when a vessel gets outside our territorial limits would be binding, probably, on Australian and New Zealand ships, but would not touch foreign ships. That is a very important matter. To sum up all, I recommend that we should consult the Imperial Government as regards the question of uniformity.
– How long would it take us to get advice now?
– I do not know. My time for dealing with the matter is limited. 1 might quote from Harrison Moore and several other writers on the subject, but I will conclude with a quotation from Keith, Vol. II., page 1211 -
It does not appear probable that the extension of the power of the Dominion Legislatures would by any means result in greater simplification in shipping matters. On the contrary, it would seem that further comparison would be inevitable if the powers of the Dominions are extended. What does seem desirable is’ that some agreement should be come to between the Commonwealth and New Zealand with regard to conditions of shipping, and, if possible, some agreement with the United Kingdom.
At present the existing legislative powers are tending to confusion and difficulty, anr] to add needlessly, and without corresponding advantage, to the problems of British shipping.
All I can say is that that is the conclusion I formed from an independent study of the various powers, and that is the dictum of one of the ablest writers dealing with the powers of the Imperial Parliament in relation to the Dominions.
Debate (on motion by Mr. Carr) adjourned.
House adjourned at 10.18 p.m.
Cite as: Australia, House of Representatives, Debates, 30 July 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19120730_reps_4_64/>.