7th Parliament · 2nd Session
Mr. Speaker (Hon. W. Elliot Johnson) took the chair at 1] a.m., and read prayers.
– I have a statement to make to the House. I desire to inform honorable members that the SerjeantatArms reported to me on Monday, the 25th February, that on the previous Saturday (23rd inst.), after office hours, the President of the Senate, who stated that he was acting for me in my absence, instructed the officer in charge of the north lobby not to allow certain parcels alleged to contain printed copies of speeches delivered by the honorable member for Cook (Mr. J.
H.Catts) tobe removed from the ‘building, and that on the Monday morning these parcels were locked up by the SerjeantatArms.
The President wrote to me on the. 25th February, hoping that I would approve of hie action, which he took on my behalf, and forwarding a copy of a letter from the Minister for Defence, which is as follows : -
Department of Defence,
Melbourne, 23rd February, 1918.
I have been supplied with copy of a reprint of aspeech delivered in the House of Representatives by Mr. J. H. Catts, M.P., during the debate on the recent “ no-confidence motion,” and I notice that on the fly-leaf the Commonwealth coat of arms is used, and certain words, which would indicate that it is an official publication.
On behalf of the Government,I wish to take advice as to whether these things are allowed, and, in order to enable me to do so before the leaflets in question are issued, ask you, in the absence of the Speaker, to be so good as to direct that the bulk parcels containing these leaflets, which, I understand, have been delivered at Parliament House, be retained until the legality of the action can be determined.
Senator Hon. T. Givens,
President of the Senate,
Federal Parliament House,
The President then wrote to the Minister for Defence, informing him of the actionhe had taken on my behalf, and that the matter now rested with me for my decision. Upon my return to Melbourne, the President informed me of the action he had taken, which was in accordance with a practice that has been in existence for some years, under which, when either of the presiding officers of Parliament is absent from Melbourne, and a matter suddenly arises requiring immediate attention, it is dealt with by the other, acting on behalf of either or both, but subject to the subsequent approval of the one who is absent. Thereupon I forwarded the following letter to the Minister for Defence : -
Melbourne, 26th February, 1918.
Regarding bulk parcels said to contain reprints of a speech by Mr. J. H. Catts, M.P., in the House of Representatives, and which you wish to have withheld from issue pending legal advice concerning them, I have ascertained from the Serjeant-at-Arms that some parcels addressed to Mr. Catts, M.P., have been received at’ Parliament House from the Government Printing Office, contents unknown.
If they are reprints from Hansard, I would point out that regulations governing reprinting to the order of honorable members of Mansard reports of their speeches are exclusively under the control of the Treasurer, who is the Ministerial head of the Government Printing Office.
As I have no official control over reprints of members’ speeches, I do not feel justified in authorizing any action involving interference with parcels of such matter, the personal property of members of the House, in their absence and without their consent.
Senator the Hon. G. F. Pearce,
I then instructed the Serjeant-at-Arms to have the parcels again placed in the north lobby. . On the afternoon of the 28th February a military officer in uniform, named Lempriere, accompanied by a detective, waited in my absence upon the Clerk Assistant of the House of Representatives, and produced a search warrant under the War Precautions Act, signed by GeneralWilliams, State Military Commandant for Victoria, giving authority to seize certain parcels said to contain printed copies of speeches delivered by the ‘honorable member for Cook (Mr. J. H. Catts), in this House, on the 15th and I8th January last respectively, and stated that owing to my absence he had been unable to see me on that or the previous day in connexion with the matter. The Clerk Assistant was asked by the military officer to produce the parcels. The Clerk Assistant informed the officer that they were the private property of the honorable member for Cook, and were not official documents; also that he knew they had been lying for some time in the north lobby of the building, but where they were at that time he was unable to say. He further said that as officer then in charge of the Department he would take no responsibility in the matter, and that any action the military officer took in the way of searching the building or seizing the parcels of printed matter would be entirely on the military officer’s own responsibility. The officer in charge of the north lobby, acting under the Clerk Assistant’s instructions) refused to give any information as to the whereabouts of the parcels. The military officer and the detective searched for and found them in the Labour party room. The parcels were then removed from the building, and were taken away in a motor car driven by a soldier in uniform. In response to my request for information as to the reasons for this action being taken, I received the following letter from the Minister for Defence : -
In reply to your letter dated 1st March, 1918, asking for certain information in regard to some reprints of a speech by Mr. J. H. Catts, M.P., which were removed from Parliament House by a military officer, the reason for such removal was that the parcels addressed to Mr. Catts contained pamphlets, the contents of which are detrimental to the safety of the Commonwealth, and the printing and publishing of such are, I am advised, a breach of the War Precautions Regulations.
The officer ordered to take possession of these documents endeavoured, by my order, on two occasions to see the Speaker, before taking action, but was informed that the Speaker was absent.
– I did not wish to occupy unduly the time of the House by reading the correspondence in full. My letter asked for information in regard to the action that had been taken by the military authorities.
– It is important that we should have it in Hansard.
– A copy is available. The proceedings being unusual, and, so far as I have been able to ascertain, without precedent in parliamentary history, I have thought it right to report the incident to the House. It will be noted that the ground of the request for detention of the parcels differs from that given for their seizure. The first was to allow of inquiry being made as to the legality of the use of the Commonwealth Arms on the reprint of a speech without reference to the nature of the matter contained therein. The latter was on grounds of military necessity, involving the safety of the Commonwealth.
– I do not know what procedure should be followed in this case, which you, Mr. Speaker, say is without precedent, but, perhaps, I may be permitted to read a statement concerning it which has been prepared by the Minister for Defence, and a statement of what I conceive to be the law of privilege as affecting the circumstances that have been detailed.
– On a point of order I submit that the Prime Minister cannot rise to discuss a matter of privilege without concluding with a motion.
– I do not propose to move a motion, but, if necessary, a motion may be made pro forma to allow me to read the statements thatI have mentioned. I am willing to follow whatever course Mr. Speaker declares to be the proper one under the circumstances.
– Leave of the House will be necessary for the Prime Minister to make a statement. Under the Standing Orders, a question of privilege may be discussed only on a specific motion, and, perhaps, the Prime Minister will recognise the propriety of having such a motion moved.
– I am prepared to move a motion.
– Cannot my honorable friend move his motion pro formal My physical condition is such that I must either make my statement now or leave it unmade.
– I am prepared to move a motion, but I do not wish to forfeit my right of speech. I desire to give reasons for the course thatI wish to propose.
– This is a matter in regard to which the Prime Minister should move a motion, as the rights and privileges of every member are affected.
– I am willing to move a motion, but I cannot move the motion which the Leader of the Opposition has just handed to me.
– The rule of Parliament requiresthat the discussion of a matter of privilege must be preceded by the moving of a motion. I suggest that the honorable member for Yarra should be permitted to move his motion pro formd,’ without prejudice to. his right to take part in the subsequent debate.
– It seems to me that I should not move a motion pro forma, because if I were to do so, and the Prime Minister were to follow with his statements, we should have the delivery of a defence before any charge had been made.
– I am indifferent as to the course the honorable member takes.
– I am prepared to move my motion, and I desire to be very brief.
– I submitthatthere is nothing in the Standing Orders to prevent the Minister asking for, and being accorded, permission to make a statement. There is nothing in your statement, Mr. Speaker, that has actually and necessarily raised a question of privilege. You have reported something to the House, and it is now in the power of the House to make any motion it cares to dealing with it. I suggest that the easiest and fairest way out of the difficulty is for the Prime Minister to have permission to make a statement, and for the Leader of the Opposition, in the light of that statement, to submit any motion he desires
.- I rise to a question of privilege, and desire to move the following motion-
– On a point of order, I submit that the honorable member cannot rise to privilege after another honorable member has been called. The Prime Minister was called, and was proceeding to make a statement to the House, when a point of order was taken which has been decided.The honorable member for Wentworth is perfectly correct; it is still open to the House to permit the Prime Minister to make any statement he chooses concerning anything that has been done.
– Surely if I rise to privilege, my motion must take precedence?
– Do I understand that the Prime Minister desires to make a statement ?
– May I, on a point of order, state my case ? You, sir, have made a statement dealing with certain events that have transpired since the last meeting of the House. In that statement there are allegations made against the action ofthe Ministerfor Defence, and as these allegations seem to reflect on the Government, because for whatever the Minister for Defence does the Government is responsible, I am desirous of making a statement as to what actually took place. You raised the question, not, of course, by way of privilege, but as the custodian of the rights of this House. I am in the hands of the House, and Ido not think that my honorable friend’s motion of privilege, or any discussion which might arise, would be interfered with if I just set out the facte as I have seen them. If it is thought proper I shall withhold my view, as AttorneyGeneral, on the question of whether the rights of the, House have or have not been invaded. I think that might be conceded, though I am not going to push the point. This is a matter that concerns the House, but it is a reflection, and a very serious reflection, on the Minister for Defence, and, consequently, on the Government. As Speaker, you, sir, have set out certain facts, and I desire to set out the facts as I have them.
– I think it would be better if I submitted my motion of privilege, and that the Prime Minister should then reply to my statement of the facts as I understand them.
– Personally, I have no objection to that.
– I suggest that the Prime Minister be given leave to make his statement, and I cannot see that honorable members on this side should object. It would not in any way interfere with the submission by the honorable member for Yarra of his motion of privilege.
– I propose to take the sense of the House. Is it the pleasure of the House that the Prime Minister have leave to make a statement?
– I object.
– Objection having been made, I call upon the honorable member for Yarra.
– I move -
That the intrusion into and invasion of Parliament House by a military force for the purpose of search and seizure in defiance of the expressed objections, and without the consent, of Mr. Speaker, constitutes a breach of privilege of this honorable House.
As set forth in the statement which yon, sir, have made, the President of the Senate, on Saturday, 23rd February, received a message from the Minister for Defence, asking the President to hold certain .parcels which were lying in the lobby of this House. The contents of the parcels have nothing to do with the question before us, and I trust that it will be considered apart from the individual concerned. These parcels were the private property of an honorable member, and, in the first instance, they were held, not at your request, but by the President of the :Senate,N acting for you. On Tuesday, 25th February, which, I understand, is the day you, sir, arrived from Sydney, I was informed of what had occurred. As
Leader of the Opposition, I immediately waited upon you, seeing that this mattei concerned a member of the party to which I ‘belong1 - though I may say that I would have taken the same action regarding any honorable member, if I thought the privileges of the House were being invaded. What has happened to an honorable member on this side may happen to honorable members opposite to-morrow. It is not to be thought that, because honorable members opposite are in the majority today, they will always be in a majority, and that they can play fast and loose with the rights and privileges of honorable members. This is the most serious thing that has happened, so f aT as the privileges of honorable members are concerned. Regarding the speech itself of the honorable member concerned, it must not be forgotten
– The speech has nothing to do with the question before us.
– I admit that, but it must not be forgotten that every word of the speech had been circulated in Hansard throughout Australia, so that this was a belated action on the part of the Government. According to Mr. Speaker, the military authorities were so anxious to obtain the copies of the speech, that they stated they were taking them because they bore the Australian coat of arms. Why, every member of the House is supplied with, notepaper bearing the coat of arms. Is it proposed to stop that practice, and supply us with private notepaper? To show how the coat of arms is used in every direction, I have in my hand an advertisement in reference to the rabbit industry, and at the top of it is the coat of arms of the Commonwealth. Apparently the Government have gone out of theirway, and made a serious invasion into the rights and privileges of honorable members, in an endeavour to prosecute one honorable member. This, however, is not merely a matter of the honorable member for Cook (Mr. J. H. Catts) and his speeches, but a matter of the rights and privileges of Parliament, which have been handed down from time immemorial. The 12th edition of May contains case after case, and reason after, reason, showing what the privileges of honorable members are. There has never been an action like that under notice connected with this or any other Parliament. If there be a desire on the part of the authorities to take proceedings against an honorable member there is ample opportunity outside Parliament - there is no room inside. The Prime Minister has stated, or rather inferred, that it is his intention to set forth his view as Attorney-General on the question of privilege, and, I presume, to give the reasons of the Minister for Defence for the action taken. This matter ought not to be treated as a party matter in any sense. I asked the Prime Minister whether he was prepared to get up in his place and seek to conserve the rights of honorable members.- It is his duty, or, in his absence, the duty of the leading Minister present, to protect the rights and privileges of honorable members. I ‘remind honorable members that whatever is done to-day in this matter will She taken as a precedent. If the motion is not carried, it will be open to the military to come into this Parliament and seize the private property of honorable members. There will be nothing to prevent the military walking in at that door and, not only stopping any honorable member who might have possession of the floor, but stopping the whole proceedings of the House. Once we admit that the military power is supreme - that it has a right over Parliament, a right which I think would not be admitted by honorable members opposite-
– It will not be admitted, but I am afraid that it is a fact.
– But what I have suggested will be the position if we “acquiesce in the action taken by the military. On the 2oth February, Mr. Speaker, you informed me that you had written to the Minister for Defence protesting against his action, and ordering that the parcels be replaced. They were replaced on “Wednesday, 26th February, and were deposited in the north lobby alongside the messenger’s box. From there they were removed by the messengers themselves into one of the party rooms. All the party rooms and ‘ the corridors are marked “ Strictly private,” and reserved for the use of members only. f Further, it is recognised that no honorable member goes into the room of another party unless accompanied by a member of that party, or on some invitation or authority. The same applies to the Ministers’ rooms. On this occasion, however, the military and the detectives marched into the Parliament House, and seized the private property of an honorable member. If an honorable member is guilty of any wrong, in the opinion of the Government, there is, as I have already said, plenty of opportunity for action outside without the invasion of Parliament. It is breaking no confidence when I say that on the 26th February you, Mr. Speaker, informed me that you had ordered the SerjeantatArms to have the parcels replaced, thus safeguarding the rights of members. On the Thursday, however, when, so far as I can learn, no member of Parliament was present, the military came into the building and seized the parcels. If the military have power to do that they have power to seize anything they like.
– Even the records of Parliament.
– Quite so; if they can go into one party room they can go into all. Some honorable members respect the mace on the table, and I remind them that if this action by the military is allowed we may have a soldier walking into this chamber and taking that mace away under his arm.
– Other men besides the military have done that.
– And I believe that those men are on the Government side to-day.
– If you knew who these men were why did you not say so.
– I was not called upon to give evidence.
– You are “ in the know.”
– No, I am not.
– If you ask me, I think there is one on each side !
– However, Mr. Speaker, after these parcels had been removed, I saw you again on Friday, the 1st March, when you read to me an important letter in which you protested to the Minister for Defence in the very words of this motion. In that letter Mr. Speaker referred to the “ intrusion “ of military officers into Parliament House, and to the seizure of these documents. It ought to have been read’ and placed beside the other correspondence. No doubt you, sir, thought that your statement would be unduly extended by its inclusion, but having regard to the importance of this matter, I think the letter should have been read. Once we admit the right of the military to invade Parliament House in this way it will not be safe for us to sit here as a Parliament; we may be prevented from proceeding with our business.
– If the honorable member thinks the letter important, I will supply him with a copy so that he may read it.
– I shall be pleased to incorporate it in my speech, although I should have liked it to be added to your own statement, so that it might appear in its proper place inHansard. Realizing the gravity of this matter, and the important effect which the action of the military authorities would have upon the rights and privileges of honorable members, I requested the Parliamentary Librarian to look up for me authorities bearing on the question. “ He advised me that he could find few cases of the kind.
– Since the time of Cromwell.
– Quite so. At page 63 of the twelfth edition of May, we have the statement that -
Both Houses of Parliament enjoy various privileges in their collective capacity, as constituent parts of the High Court of Parliament. We are above all Courts, and the privileges we enjoy cannot be tampered with except by Parliament itself. The point I wish to emphasize is that Parliament should not destroy any of its rights and privileges. If honorable members are prepared to whittle them away by voting against this motion, and so upholding the action of the military authorities, they will create a very dangerous precedent. It will be saidthat the House deliberately handed over to the military power, at a time of war, a right which Parliament alone should enjoy.
We ought to consider this question apart from its relation to the honorable member for Cook himself. If any honorable member offends, then the Parliament, and not the military power, should deal with him. At page 67 of the twelfth edition of May it is stated that -
The House has also the power to send for persons whose conduct has been brought before the House on a matter of privilege by an order for their attendance, without specifying in the order the object or the causes whereon their attendance is required; and in obedience to the order members attend in their places, and other persons at the bar.
May goes on to point out that Parliament has the power of commitment -
The power of commitment, with all the authority which can be given by law, being thus established, it becomes the keystone of parliamentary privilege.
At page 97 May gives the following case : -
Again, in the 4th Henry VIII. (1512), Mr. Strode, a member of the. House of Commons, was prosecuted in the Stannary Court for having proposed certain Bills to regulate the tinners in Cornwall, and was fined and imprisoned in consequence. Upon which an Act was passed, which, after stating that Strode had agreed with others of the Commons, in putting forth Bills, “the which here, in this High Court of Parliament, should and ought to be communed and treated of,” declared the proceedings of the Stannary Court to be void, and further enacted that all suits and other proceedings against Richard Strode, and against every other member of the present Parliament, or of any Parliament thereafter, “ for any Bill, speaking, or declaring of any matter concerning the Parliament, to be communed and treated of, be utterly void and of none effect.” As the proceedings which had already taken place against Strode were declared to be void, it is evident that freedom of speech was then admitted to be a privilege of Parliament, and was not at that time first enacted; and that the Statute was intended to have a general operation in future, and to protect all members, of cither House, from any question on account of their speeches or votes in Parliament.
Honorable members may say that in this case it was not a speech, but merely a reprint of the speech that was involved. The point involved, however, is the same.
– It is very different.
– It is exactly the same.
– May, I think, points out that it is very different.
Mr.TUDOR. - If the Government and their supporters, rather than admit that one of their party - the’ Minister for Defence - made a mistake, are prepared to vote against this motion, then upon them must rest the responsibility. They have an opportunity here to protect the rights and privileges of this House, and rather than agree to the whittling away of the rights of Parliament, it would be far better for them to admit that one of their party has made a mistake.
– The man who made the mistake was the man who made the speech.
– Then why was that speech allowed to be circulated in Hansard? The honorable member is evading the real question. Honorable . members opposite may try to shelter themselves behind the fact that it is merely the reprint of a speech - a speech to which they objected - that is involved. They object to many of our speeches, and, no doubt, will object tomy action in calling attention to this invasion of–
-Will the honorable member allow me-
-Will the honorable member allow me to finish my sentence, just as he would do if it were a sentence under the War Precautions Act? Under that Act the Government are trying to rope in every member of our party. The Act is being used in a way never intended at the time of its passing. An honorable member of the Opposition is being persecuted merely because he is an official of the Labour party. Honorable members opposite may also try to shelter themselves behind the plea that, to use the words employed by the Prime Minister at Bendigo, pressure is put upon them by outsiders;but they cannot deny that if they do not protest against this action by the military authorities they willbe submitting to a taking away of the rights and privileges of Parliament. They may console themselves with the thought that they are in a majority to-day, and that when the Labour party returns to office it will be sufficiently fair-minded to preserve the rights and privileges of every member, notwithstanding that the party in power to-day is following a policy of victimization. Such conduct is unworthy of any member of Parliament ; and I hope that, when we proceed to a vote, the motion will be carried. The question involved is too important to be disposed of in the two or three hours available to us to-day. We cannot deal hurriedly with it.
– The honorable member is not inviting calm discussion. He starts by insulting the very members to whom he is appealing. We came here with open minds, and the honorable member started by insulting us, without knowing what we were going to do.
– The Opposition cannot get away from party politics.
– It ought not to be a party question.
– I sincerely hope that it will not be treated as a party question.
– Then why is the honorable member making it one?
– I am not. I began by asking the Prime Minister to submit a motion thatwould protect our rights and privileges. He said that he had not prepared one and when I handed to him the motion I had drafted he said he was not prepared to accept it. If he will move an amendment that will protect the rights and privileges of members I shall be quite satisfied.
– That is not the point.
– ‘The sole question is whether our privileges are to be respected or not. Mr. Speaker has handed to me a copy of the letter which be addressed to the Minister for Defence by way of protest. It reads as follows: -
Dear Sir,- The Clerk Assistant has reported to me that about 3 o’clock yesterday afternoon, in my absence, he was waited upon by a military officer in uniform, accompanied by a detective in civilian attire, armed with a search warrant issued under the War Precautions Act.
The object of their visit was to seize some parcels of printed matter, said to contain reprints of a speech by Mr. J. H. Catts, M.P., in connexion with a recent debate in the House.
The Clerk Assistant informed the officers that any such parcels were the private property of Mr. Catts, and he could give them no information concerning them. He furthermore informed them, as acting head of the Department, that any action they, might take in the way of search or seizure within the precincts of the building would not be with his consent, and would be entirely on their own responsibility.
The officers then made a search in one of the rooms set apart for the exclusive use of members, and, I am informed, removed a number of parcels of printed matter, addressed to Mr. J. H. Catts, M.P.
I would be glad to know the reasons which prompted your Department taking a course of action involving intrusion into the rooms of Parliament House, and the removal in their absence, and without their consent, or the consent of the Speaker, of the private property of members.
I need hardly point out that questions of members’ rights and privileges are involved in the proceeding, and it will be necessary for me to direct the attention of the House to the matter.
Yours faithfully, (Sgd.) W. Elliot Johnson,
Senator the Hon. G. F. Pearce,
That was a very fair statement of the case, and I maintain that, as soon as we met, the Prime Minister himself should have taken action. Mr. Speaker is the guardian of our rights and privileges when we are not in session, hut when Parliament is sitting it is for the Prime Minister to take action, and he should have done so as soon as we met yesterday.
– He should have taken action to safeguard the rights and privileges of honorable members.
– In what way?’
– To prevent the invasion of Parliament House and the seizure of the private property of an honorable member by a military force. Unless this motion, or such an amendment of it as will equally protect our rights and privileges, be carried, this House will hand over its responsibilities to the military power.
– We should support Mr. Speaker.
– We have a right to protect you, Mr. Speaker, and I desire to compliment you upon the action you took to safeguard our rights as far as you could. I hope that before this debate concludes we shall have from the Prime Minister some promise of action. It is far better for the Prime Minister to act in this matter, even though a temporary humiliation of a member of the Government may be involved, than that the rights and privileges of honorable members should be in any way interfered with. On page t>8 of May, twelfth edition, it is stated -
In 1621, the Commons, in their protestation, denned their privilege more consistently with its present limits. They affirmed, “ That every member hath freedom from all impeachment, imprisonment, or molestation, other than by censure of the House itself, for or concerning any Bill, speaking, reasoning, or declaring of any matter or matters touching the Parliament or Parliament business.”
And on page 99 -
By the ninth article of the Bill of Rights it was declared, “ That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any ‘Court or place out of Parliament.” On page 100-
The Lord Chief Justice of England, in a more recent case, further laid it down that “if a member publishes his own speech, reflecting upon the character of another person, and omits to publish the rest of the debate, the publication would not be fair, and so would not be privileged,” but that a fair and faithful report of the whole debate would not be actionable. (Wason v. Walter, 1868.)
– That refers to a report of the whole debate.
– It means the whole of an honorable member’s speech. Why do not the Government take action against other honorable members who have republished their speeches from Hansard/ Is there to be a new rule that no honorable member shall be allowed to republish his speeches? Are the Government afraid of Hansard, and do they propose to shut up this publication altogether? Yesterday an important statement was made in the Senate, but not a line concerning it appears in the press today. Has it ‘been censored’/ Some honorable members hint 6y their interjections that they intend to vote against this motion, and no doubt they will say on the platform that as the motion emanated from the Opposition they could not vote for it. If they adopt that attitude they will ‘-be making a rod for their own backs. On page 101 of May it is stated -
By the Parliamentary Papers Act 1840 (3 and 4 Viet., .c. 9 ) , passed in consequence of the decision of the Court of Queen’s Bench in the case of Stockdale v. Hansard (see p. 134),’ it was enacted that proceedings, criminal or civil, against persons for the publication of papers printed by order of either House of Parliament, shall be immediately stayed on the production of a certificate, verified by affidavit, to the effect that such publication is by order of either House of Parliament. Proceedings are also to be stayed if commenced on account of the publication of a copy of a parliamentary paper, upon the verification of the correctness of such copy; and in proceedings commenced for printing any extract from, ,or abstract of, a parliamentary report or paper, the defendant may give a report in evidence under the general issue, and prove that his own extract or abstract was published bond fide and without malice; and if such shall be the opinion of the jury a verdict of not guilty will be entered.
The action of Barlow v. Hansard was stayed 14th July, 1845, by Mr. Justice Weightman in chambers, on the production of the Speaker’s certificate. In the case of Houghton and others v. Plimsoll, tried at Liverpool, 1st April, 1874, Baron Amphlett directed the jury that the report of a Royal Commission presented to Parliament in a printed form came within the provisions of the Act, “ since it was a report which had been adopted by Parliament,’ and of which a distribution of copies had been ordered by Parliament.” This judgment was followed by Mr. Justice Darling in Mangena v. Edward Lloyd Limited (1908), 98 L.T. 640, an action for libel brought in respect of a statement contained in an extract from a paper presented to Parliament by command of His Majesty. The decision . in this case, the proceedings in which were presented to both Houses (see Cd. 4403), was followed in Mangena v. Wright (1909), 2 K.B. 858.
And on page 102 -
From these it will be seen that not only are the persons of members of both Houses of Parliament free from arrest on mesne process or in execution, but that formerly the same immunity was enjoyed in regard to their servants and their property.
The two most f amous interferences with the freedom of the House are the demand of Charles I. for the arrest of five members and the expulsion of the long Parliament by Cromwell, the first of which, as Mr, Speaker Lenthall implied to the King, was distinctly illegal, and the second an exercise of force which has no analogy to anything existing to-day. In the five years of the Wilkes case, though he was outlawed and committed by Parliament itself, yet it is worthy of notice that when he was arrested for the libel on George III., in the Forth Briton, he obtained a verdict and damages against Halifax, Secretary of State, for his action, on the ground that his parliamentary privilege had been transgressed by the Minister’s causing his arrest. A case, in 1811, brought by Sir Francis Burdett against Mr. Speaker Abbott for trespass for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff, and arresting him there, for a libel on the House, in Cobbett’s Weekly Register, was decided against Burdett on the ground that action was taken on the authority of the House itself. The action could have been taken on the authority of the House,. but there is no right vested in any outside authority to take such action. That is the point of my contention to-day. The House itself has ample power to deal with the honorable member for Cook if he has committed any offence, but no outside authority may do so. I trust that Parliament will declare that that is the course of action which should have been followed, and will order that the parcels which were removed from the House should be restored. Unless we do that we shall be failing in our duty as members, and shall be whittling away the privileges possessed by this House. I have further extracts bearing on this subject -
There are “other privileges not specifically mentioned . . . though regularly asserted and enforced by the House. These are the right to provide for the due constitution of its own body, the right to regulate its own proceedings, and the right to enforce its privileges by fine or imprisonment, or, in the case of its own members, by expulsion. - (Anson.)
Privilege, however, as both Anson and May aptly observe, is law, and must rest upon a legal basis; it follows that the Courts of law must, on principle, be competent to discuss the question where the boundary line is to be drawn between the jurisdiction of the ordinary Courts and the extraordinary jurisdiction which the Houses of Parliament are entitled to exercise for their own protection. - (Redlich.)
There is another proposition equally true, equally well established, which seems to be decisive of the case before us.What is said or done within the walls of Parliament cannot be inquired into in a Court of law. On the point all the Judges in the two great cases, which exhaust the learning on the subject, Burdett v. Abbott and Stockdale v.Hansard, are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their own walls, is absolute and exclusive. To use the words of Lord Ellenborough, “ They would sink into utter contempt and inefficiency without it.” - (From the judgment of Lord Chief Justice Coleridge in Bradlaugh v. Gossett.)
It would appear, I think, to be inherent in every assembly that possesses a supreme legislative authority, to have the power of punishing contempt, and not merely such as are a direct obstruction to its due course of proceeding, but such also as have a tendency indirectly to produce such an obstruction, in the same way as Courts of Record may not only remove or punish persons who actually are interrupting their functions, but may also repress those who indirectly impede the administration of justice, by disparaging and weakening their authority. - (Mr. Baron Parke, in giving the judgment of the Privy Council in the Jamaica case, Beaumont v. Barrett, 1836.)
If the “War Precautions Act can take away all the rights and privileges of honorable members, as set out in the authorities I have quoted, we have arrived at a state of affairs to which no honorable member will be content to submit. If by an Act of this Parliament we have created a Frankenstein monster that can destroy us, the sooner we know the position the better. As we brought that Act into existence, surely also we have the right to amend, annul, or repeal it; but I say that the War Precautions Act can have no effect upon the rights and privileges of honorable members, and if honorable members on- the Government side say that because of that Act they are prepared to vote against this motion they will be adopting a course which they will have reason to regret. I trust that this debate will not be conducted in a party spirit.
– The honorable member has tried to make it a party question.
– I have not.
– I have never heard anybody make a better attempt to raise a party question.
– Some honorable members, by their interjections, have endeavoured to make this matter a party question, but I hope that it will not be regarded as such. I hope that honorable members will record their votes free from any thought of party considerations, because it is not a party matter ; it is a matter affecting our rights and privileges. I hope also that honorable members will notregard the matter as one affecting the position of any Minister or Ministry. It is simply one that affects each of us individually as representatives of the people. We are the custodians of our own rights, and it will be a big mistake on our part if we do not carry a motion protesting against the intrusion, to use Mr. Speaker’s own words, of a military force into Parliament, and the seizure of an honorable member’s private property. The military authorities are no more entitled to seize the private (property of any honorable member than they are to come in and sweepclear the table of this House. That is the spirit in which, I hope, honorable members will treat this matter, and the spirit in which, I hope, they will vote upon a motion of protest against the action that has been taken. In supporting this motion, and in asking that the parcels seized by the military authorities shall be returned, honorable members will show their determination that their privileges shall be maintained intact.
– The motion contains an inaccuracy, and requires some amendment. As the parcels were seized without reference to me, I could not have expressed objection to the action of the military authorities in seizing them before that action took place.
– Then, by leave; I shall amend my motion, to read-
That the intrusion into and invasion of Parliament House by a military force for the purpose of search and seizure without the consent of Mr. Speaker constitutes a breach of privilege of this honorable House.
– I regret greatly that this matterhas been brought on at the present time, because I am very ill-fitted to deal with it. The Leader of the Opposition and Mr.
Speaker seem to have fallen into a most curious error as to what privilege is. There seems to be an impression in the minds of some people that any action taken by a member of Parliament within these walls is sacrosanct, and immune from those ordinary legal consequences’ that would attend the action if taken outside.That is so in regard to some things, but to some things only. For example, anything said inside this building does not lay the person speaking open to action for libel or slander; men may say or do things here that they may not say or do outside; but men may not use these premises for purposes which are unlawful. The Leader of the Opposition, in the number of cases he has quoted, seems to have overlooked this most important fact, as well as the circumstances leading up to the seizure of papers about which he complains. We are at war. At this very moment the fate of this Parliament, and all its privileges, is trembling in the balance. It may be that to-morrow, in a week, ten days hence, or in six months’ time, there . will be no Parliament here, with its . privileges or its rights.
– That has nothing whatever to do with this question.
– And then those honorable members, like the honorable member for Batman (Mr. Brennan), whose opinions, I am very glad to believe, are not shared by his fellow members, will be able to sample the benefits of government under the German flag. However, without going into this matter at any length, I want to confine myself to a statement of the facts as supplied by the Minister for Defence, and a statement of my own views as to the law in this regard. In passing, I may say that I know nothing of the facts beyond what has been stated here today by Mr. Speaker and by the Leader of the Opposition, and what is contained in this report from the Ministerfor Defence That is to say, I knew nothing of the matter before it occurred. My colleague states : -
He advised, however, that issue of the pamphlet without submitting it to the Censor was a breach of Regulation 28a of the War Precautions Regulations, and further, that there was, on page 11, a statement about Japan which, in his opinion, contravened Regulation 28 of the War Precautions Regulations, as being a statement likely to prejudice His Majesty’s relations with foreign Powers.
The Solicitor-General added -
I also call attention to the fact that Mr. Catts, in December last, was convicted in Sydney on three charges under War Precautions Regulations 28 (1) (a), of making statements likely to prejudice foreign relations, and was ordered to enter into three several recognisances of £200, £100, and £100 respectively, to comply with Regulation 28 (1) (a) during the war. It would appear that these recognisances are now liable to be estreated.
The fact that the matter has previously been published in Hansard would not, I think, affect his liability to conviction; though it would probably be urged in mitigation. I think, however, that the republication in pamphlet form, for broadcast circulation - and especially with the Commonwealth coat-of-arms and other matters suggesting official publication - greatly increased the likelihood of foreign relations being prejudicially affected.
The Solicitor-General also advised that the pamphlets could be seized under paragraph 50 of the War Precautions Regulations, and the fact that they were in the Parliament Building would not prevent this.
I then asked for the person in charge of the House, and was, in the absence of the Chief Clerk, shown to the Clerk Assistant, to whom I stated my business. This latter gentleman consulted the Serjeant-at-Arms, and the SerjeantatArms said that on receipt of the pamphlets from the Government Printer he locked them away pending the return of Mr. Catts, but was subsequently advised by the Speaker to liberate them, which he did yesterday, but did not know where they now were. He was asked if the report appearing in the Argus of even date was correct? He said “Yes, but I do not know where they got it; they did not get it from anybody here, but it is correct.”
Constable Rowe and I then returned to the ground floor and spoke to two attendants in the inquiry office in the vestibule, asking them if they had seen the parcels addressed to Mr. Catts. They said they had, but did not know who had moved them, nor whore they were now. One attendant stated : “ I saw the parcels, and signed for them when they were delivered from the Government Printer, and I saw them again yesterday when liberated by the Serjeant-at-Arms, and placed outside the inquiry office. I do not know where they are now.”
As I could receive no information where the pamphlets were, we then entered the room of the Labour party, and at once found five packages, which, on examination, proved to contain the pamphlets in question. These packages I seized and conveyed to District Head-quarters. (Sgd.) G. F. Pearce. 4th April, 1918.
Before I set out what I believe to be the law in the matter, I wish to emphasize again that it is not open to any honorable member, under the cover of privilege, to do things which are unlawful, or are calculated to overturn the Commonwealth or imperil its welfare. When the honorable member for Cook (Mr. J. BT. Catts) made ‘his speeches, which Ee repeated in this House, it was at a time and in circumstances that did gravely imperil this Commonwealth. If the statements of the honorable member could be accepted by the Government of our Ally as expressing the opinion of the people of this country, then the position of the Commonwealth would be most serious. We stand now in a very grave position. We cannot afford to permit statements to be made which will imperil our relations with our Allies, and while I have the honour to occupy a position in the Government I will not allow any one to make them with impunity. When my honorable friend made those statements he must have known what the consequences would be. He was brought before the Court, and was convicted. At the first opportunity he repeated as much of them as he could, and used the cover of parliamentary privilege to do so. He proceeded then to reprint them, and to claim for the reprint the same privilege as is accorded to the original statement in Hansard. That is not, and never has been, the law.
– The whole point is the invasion of the Parliament by the military. It is the question of procedure by the military.
– Then I suppose the honorable member’s argument is that if a policeman had come up and done it there would have been no objection.
– Not at all.
– Allow me to read the law with regard to privilege as I have set it down. I am not a militarist, and never was, but I admit that from the beginning of this Parliament I have done what I could to enable Australia to protect herself from the enemy. If that be a crime, then I am guilty ; but I am, and’ always will be, one of the most zealous’ upholders of civil authority. It is con’ tended that a breach of privilege has been committed. That is not so. Let me set out what privilege is, its nature, and its , limitations. The charges against Mr. Catts - as to the merits of which it is not desirable to say anything while they are *sub judice - are alleged breaches of the War Precautions Regulations. namely, making statements in print likely to prejudice our relations with our Allies, and printing matter relating to the war without submitting it to” the Censor.
The documents seized in the Parliament building by the Defence authorities are the printed matter which is the subject of these charges. Honorable members must know that that is the gravamen of the whole business. It is obvious that no question of privilege arises in connexion with this matter. Parliament House is not a sanctuary of refuge from the arm of the criminal law. It is not even a sanctuary for the persons of members themselves.
My honorable friend the member for Yarra quoted a number of cases in which he sought to prove the contrary, but -
It is not even a sanctuary for the persons of members themselves, as Lord Cochrane found in 1815, when having been convicted of a criminal charge and having escaped from prison he sat on the Privy Councillors’ .bench in the empty House of Commons, where he was promptly arrested by the Marshal of the s Court of King’s Bench. The Committee of Privileges reported that the privileges of Parliament did not appear to have been violated so as to call for the interposition of the House by any proceedings against the Marshal (May, 11th edition, page 116).
That was a case of the arrest of a member of the House of Commons in the very Chamber of the House. In the case now being- discussed, neither of these elements was involved. A competent military authority under the War Precautions Regulations has right of access to any building whatever, and to seize any articles as to which there is reasonable ground for believing that they will afford evidence as to the commission of any offence or are intended to be used for the commission of any offence. What happened was that a competent military authority, in pursuance of these powers, seized certain articles in a room in Parliament House building. If Parliament. House were a sanctuary from such proceedings it would mean that the building might be made a store-house, not only for seditious and unlawful literature of all kinds, but even of dangerous instruments of destruction. Such a position is not only opposed to all precedent, but is also too absurd for argument.
It may be added that, as a matter of courtesy to the Speaker, the military officer, before making the seizure, endeavoured on two successive days to see the Speaker, and inform ]dm o”f his intention; and in the Speaker’s absence he informed the senior available officer of the Staff.
There has been no invasion of the privileges of this honorable House. On the contrary, the honorable member deliberately endeavoured toy pervert those privileges for purposes incompatible with that welfare. After having made speeches which gravely imperilled the welfare .of the country, he sought to issue them in such a form as to give colour to the suggestion that they were official publications, and to give our Ally reason to so believe. As this is an offence under the law, the honorable member was not permitted to commit it.
– Was the reprint that was seized an exact copy of the speech as issued in Hansard?
– If the honorable member means in the way of ‘displaying it and crossheading it, it was not.
– Was the body of the speech exactly the same?
– I could not say. I assume it was. I am not going to defend even the issue of that Hansard itself. You will remember, sir, that on the occasion on which the speech was made my right honorable colleague, the Minister for the Navy, took occasion to direct your attention to the question. I venture to say, sir, that you would have been well advised to prevent that issue of Hansard being circulated at all, but you are the guardian of the rights of the House in that respect, and the Government did not interfere. But it will, as far as its authority goes, interfere to protect this House and the community from unnecesi sary danger. The honorable member is seeking now, he himself being charged with certain offences, to make this place the storehouse of matter intended to repeat these offences, and to repeat them in such a way as to enable him to evade the consequences. If he will go outside and say what is in that speech, he knows very well that his bond will be estreated, and that he will be arrested. He knows very well, also, that a reprint has not the same privileges attached to it as Hansard has, and, as to the particular issue of Hansard, it should never have been allowed to go out. Personally, I had intended to move a motion, but I shall content myself by saying - in this I speak for the Government, and, I think, for every member on this side of the House, and, I hope, for every member on both sides - that, while I yield to no man in my zealous regard for the privileges of this House, which is a place where we are to. speak that which is in us, and to say fearlessly all that we think, we are not to say here or elsewhere that which will bring ruin to our country. We are not to play the part of traitors here, and then cover ourselves with the mantle of privilege. ‘In the hour of deadly national peril we are not to increase that peril by insulting our Allies. No privilege has been violated, but, on the contrary, an attempt has been made by the honorable member to use those great traditional privileges that have been handed down to us, privileges that have been hardly won and nobly maintained, for ignoble, base, and treacherous purposes.
– I can hardly allow certain remarks which the Prime Minister made in the latter portion of his speech to pass without some reference, since they seem to contain an implied reflection on myself, I feel sure unintentional, in my capacity as Speaker of the House. The right honorable gentleman, expressed the opinion that I should not have allowed the particular number of Hansard . in question to be issued or circulated. I would point out that, in the first place, I was not in the chair when the point of order was raised, having been temporarily relieved, and that, in the second place, I did not see the Hansard or the particular matter objected to until after Hansard was printed. It is true that within certain limits Hansard is under the Speaker’s control; but it would, in my opinion, be very undesirable to give to the Speaker the power to withhold the printing and circulation of Hansard on his own responsibility, and without reference to the House. The exercise of such a power, however judiciously, would subject the Speaker to the risk of attack on every occasion on which any honorable member might think it had been exercised wrongly, and thus the Speaker might be constantly having to explain and defend his action. The proper course to have taken, if the House thought that objectionable matter had been uttered, which should not go into Hansard, was to give a direction to that effect, and for the responsibility to be placed upon the House of either excising that matter or ordering the non-publication of Hansard. Honorable members themselves are individually and collectively responsible for the contents of Hansard, and any serious interference with the matter of their speeches, in my opinion, is permissible only by direction of the House.
– I am sorry if what I have said seems to suggest a reflection on yourself, sir, but I was certainly under the impression that you, and* you, alone, had the right to determine what should and what should not appear in Hansard. I have always understood so. Mr. J. H. Catts. - The Government, on a previous occasion, took the course in the Senate of seeking to have certain matter deleted from Hansard by a vote of the Senate, so, apparently, they knew the right course to take.
– Well, I did not know. Since you say, sir, that you hay/6 not that power, my remarks do not apply, and I must withdraw them.
.- The Prime Minister absolutely sidetracks and misrepresents this great issue, and then deliberately walks out of the chamber, refusing to hear the discussion on it - treating the House with contempt.
Upon the occasion of the invasion of Parliament by Charles I. with the military (forces for the purpose of arresting five members who by their speeches had displeased him, the very plea urged by the Prime Minister to-day waa then put forward. It was then said that those men were guilty of treason because they had been in treasonable communication with Scotland, and. that the King had the right to come into the Parliament with armed forces and seize them. It was argued that their privilege did not protect them when they had been entering into treasonable communication with another part of the country that was in open rebellion to the Crown.
The authorities show that military interference with the privileges of Parliament cannot be side-tracked in this way.
Hallam, who is recognised as our best constitutional authority, in his History of England, vol. IT., page 125, has a note, in which he quotes from Nalson, vol. II., page 810, whom he selects as his authority, and says -
It is idle to allege, like Clarendon, that privilege of Parliament does not extend to treason; the breach of privilege and of all constitutional law was in the mode of proceeding.
It was not then a question, of treason. There was a proper way to deal with treason. But it was wrong to invade the Parliament with the military.
The question involved to-day is the mode of proceeding, as it was in the case of the attempt by Charles I. to invade Parliament with military forces and take the speakers out of the House of Commons.
It is a question pf a military invasion of Parliament without the consent of Parliament. Is it constitutionally right to use the power of the sword against the institution of Parliament?
I shall come to the legal argument again at a later stage, but I want to brush away the Prime Minister’s “ red herring “ at the outset.
I hope the matter will not be dealt with as a party question in any shape or form. This Parliament would be lost to all sense of its responsibility if it allowed passion, arising during a period like the present, to sway it, and resolve upon a retrograde step in connexion with the great privileges of the Legislature - a matter involving the paramountcy of the civil power as against the military forces of the King.
The Hansard reprints in question were delivered to Parliament on ‘about the 11th February, and during my absence in Western Australia. They were signed for by an officer of the House, and taken into his custody. They were never delivered to me. They were in the keeping of Mr. Speaker per medium of his subordinate officers. The subsequent events have been dealt with by Mr1. Speaker, in the correspondence already placed before the House.
This is nob a dispute between authorities and individuals. It is not a question of whose speech was reprinted, aor is it. a question of the subject-matter of a speech.. It is a question of procedure, the method adopted, which, in this case, amounted to an act of invasion by the use of armed forces at the disposal of the Crown to override the authority of Mr. Speaker, who is therepresentative of Parliament, the living evience, the sign and symbol of the paramountcy of civil power. This is the issue we have to decide now.
Privilege is laid down in May, 12th edition, page 66, thus -
This law of Parliament is admitted to be part of the unwritten law of the land, and as such is only to be collected, according to the words of Sir Edward Coke, “ out of the rolls of Parliament and other records, and by precedents and continued experience,” to which it is added that “whatever matter arises concerning either House of Parliament ought to be discussed and adjudged in that House to which it relates, and not elsewhere.”
May, on page 87, goes so far as to say -
Assaults or interference with officers of the House while in the execution of their duty have also been punished as breaches of privilege.
In the interview which Mr. Speaker had with the Leader of the Opposition and myself, he expressly pointed out that, whilst the action by the military authorities was improper, he had no forces at his disposal to protect the interests of Parliament against an invasion by armed forces. The inference, therefore, is that if Parliament had had its military forces, such as were available to check military aggression by Charles I., there would have been military resistance to this armed invasion of our Parliament.
The Wilkes case in 1768. In that case, although Wilkes was outlawed, and had been committed by Parliament itself, yet it is worthy of notice that when he was arrested for his libel upon George III. in the North Briton, heraised the question of parliamentary privilege, and, although he had been arrested beyond the precincts of Parliament for something he had done outside of Parliament, he obtained a verdict and damages dgainat Halifax, Secretary of State, for having caused his arrest.
– Does the honorable member argue from this the right to do a thing prejudicial to the interests of the Empire?
– The honorable member is so bigoted that he cannot ap preciate the importance of a constitutional issue.
In Burdett v. Abbott, a case brought in 1811 by Sir Francis Burdett against Mr. Speaker Abbott for trespass for forcibly, and with the assistance of armed soldiers, breaking into the messuage (the household) of the plaintiff, arresting him there, and taking him to the Tower of London and imprisoning him there for a libel on the House inCobbett’s Weekly Register, was decided against Burdett on the ground that action was taken on the authority of the House itself.
In the case of Bradlaugh v. Gossett, the following has been taken from the judgment of Lord Chief Justice Coleridge - . . There is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into in a Court of law. On the point all the Judges in the two great cases which exhaust the learning on the subject - Burdett v. Abbott and Stockdale v. Hansard - are agreed and are emphatic The jurisdiction of the Houses over their own members, the right to impose discipline within their own walls, is absolute and exclusive. To use the words of Lord Ellenborough, “ They would sink into utter contempt and inefficiency without it.”
This, it will be noted, concerned the right of Parliament to impose discipline within its own walls.
In the Jamaica case, 1836, a case coming from a dependency, Mr. Baron Parke, in giving the judgment of the Privy Council in Beaumont v. Barrett, said - . . It would appear, I think, to be inherent in every assembly that possesses a supreme legislative authority to have the power of punishing contempt, and not merely such as are a direct obstruction to its due course of proceeding, but such also as have a tendency indirectly to produce such an obstruction in the same way as Courts of Record may not only remove or punish persons who are actually interrupting their functions, but may also repress those who indirectly Impede the administration of justice by disparaging and weakening their authority.
The case of Lord Cochrane, referred to by the Prime Minister is reported in the House of Commons Hansard reports, 1st. series, 6th March, 1815, to 1st May, 1815, page 335. Lord Cochrane had been arrested on a criminal charge, tried in the courts of the country, and sentenced to twelve months’ imprisonment.
He was in gaol, but broke gaol, and fled to the House for protection. The House was not meeting, but the Marshal, with his officers, re-arrested him and took him back to gaol. It should be noted that in this case the officer of the law wrote to the Speaker informing him that he felt it his duty to go to the House and re-arrest Lord Cochrane, who had broken from gaol. He said, “I do not know whether I was right in doing so; I have no wish to transgress the privileges of Parliament. I submit myself to Parliament, and if my action was not right, I ask to be directed by Parliament.”
How different was the action in the case now under review. A military officer with clanking spurs walked into the House, and, regardless whether the Speaker agreed with his course of action or not, used military force to invade the privileges of this Parliament.
In the case of Lord Cochrane, already quoted, the Marshal wrote to the Speaker asking for direction by the House. The Leader of the House stated he did not think parliamentary privilege had been infringed, but said that the House should be so jealous of its privileges that if any member had the slightest doubt about the matter, a Committee would be appointed immediately to inquire into it. One member only of the House expressed a doubt, and the Leader of the House at once moved for the appointment of a Committee, which reported subsequently that, in view of all the circumstances, and having no precedent to guide them, they did not think, in the peculiar circumstances of thecase, a breach of parliamentary privilege had been committed, but that the action taken must not be regarded as a precedent for the future.
In the case now under review, Parliament was treated with absolute contempt
Let us now see what procedure was adopted in recent French cases, notably those in which the ex-Prime Minister of France (M. Caillaux) and Senators Humbert and Loustallot were charged with treason within the last three months. The French Parliament had to specially decide whether it would waive parliamentary privilege and permit prosecution to take place in the ordinary courts of the country. The High Court of Parliament was the only body which could have tried these gentlemen had it not itself determined to abandon its own rights and privileges in favour of. a civil trial in the Courts of law.
We come now to the argument of legality. The legal officers concerned are as prejudiced as any other people at the present time, and are prompted by the views and actions of their Ministers, and if I cared to degrade the debate by referring to personal matters, I could show, without any shadow of doubt, that a number of these recent cases have been prompted by vindictiveness.
– It is a pity to introduce that matter upon a motion of this kind.
– I have no desire to do so. In Blackstone’s Commentaries, Vol. 1, page 160-1, the author says -
The House of Commons of Great Britain is above all law, and is, in truth, part of the High Court of the Parliament of the Kingdom.
Mark his words - “ It is above all law.” Yet the Prime Minister tells us that this Parliament is subservient to the War Precautions Act.
– This Parliament could abolish the War Precautions Act in ten minutes.
– The Prime Minister has practically affirmed that that Act is above this Parliament. Such a contention is positively absurd.
– The War Precautions Act is the act of Parliament itself.
– I do not know whether the honorable member is a better authority on constitutional matters than is Blackstone, who says that the High Court of Parliament is above the law.
– He was speaking of the House of Commons, and not of this Parliament.
– But our standing orders expressly declare that unless otherwise provided, the practice of this Parliament is that of the House of Commons. In other words, in our own sphere we have the same privileges as members of the House of Commons have in their own sphere.
It has been said that there is the legal right of search and seizure in this Parliament by the military authorities. If the military authorities can search and seize one thing, they can search and seize another. They could come here, seize the records of the House and destroy them.
If the War Precautions Act applies here in the way that it does outside, I am not at liberty to make speeches in this Chamber which I cannot make outside.
If the contention of the Prime Minister be correct, every order issued to the newspapers in regard to censoring publication applies with equal force to the publication of Hansard. There is no escape from that position.
The Prime Minister has practically affirmed that this Parliament exists by the grace of the War Precautions Act and by the leave of the military authorities.
Did time permit, I could cite a long list of interesting cases involving constitutional questions in which the opinions expressed by the Prime Minister have been proved to be utterly wrong. We cannot elevate so unstable a legal authority into the guardianship of our constitutional rights.
Mr.McWilliams. - If the military authorities have this power, the Minister for Defence ought to be in this House, where we could deal with him.
– Three-fourths of the opinions which have been expressed by the Prime Minister on constitutional questions have proved to be absolutely erroneous.
It is only idle babbling to affirm that the Government did not know how to deal with this matter, because in another place, on the 25th October last, action was taken by Senator Millen to delete certain portions of the Hansard report of a debate which took place there, and the publication of which, he alleged, would be prejudicial to recruiting. The Senate refused to make that deletion. The President, had he voted with the Government supporters, would have enabled the deletion to take place, but he declined to do so.
The Crown Law officers often take up an absolutely illegal stand. Some time ago I was elected by the railway employees of New South Wales as their representative on a Superannuation Board. The Government of that State brought forward a regulation which made it an offence to publish any report of the meet ings of that body. I took up the attitude that the Government had no authority to interfere by regulation with any report that I might make to the constituents of that Board and challenged the regulation. As a result, I was haled before the Court and fined £25. Against this decision I appealed to the Supreme Court, on the grounds that the regulation was ultra vires, and that it was bad from the stand-point of being unreasonable, and my appeal was unanimously upheld. In that case all the law officers of £he Crown were of opinion that they were legally entitled to interfere with my rights as a representative. But the decision of the Supreme Court showed that they were absolutely wrong (New South Wales State Reports, vol. II., 1911).
If the contention of the Prime Minister be a sound one, it means that the opinion of the Attorney-General is superior to this Parliament. It means that the right of Parliament to deal with discipline within its own walls is to be entirely abrogated. Such a position is intolerable.
We have to go back to the tyrannous time of the Stuarts to find a parallel to the recent action of the military authorities in invading this Parliament.
The British Empire has witnessed some troublous times. It has been through the Napoleonic war, the Crimean war,the Indian Mutiny, the Soudan war, theZulu war, the Afghanistan war, and the South African war.
Through all the war periods of the Empire there have been the widest differences of opinion between the statesmen of Great Britain upon matters of war policy. Yet we search in vain for any interference with the freedom of public men and the privileges of Parliament.
During the present struggle, have not Ramsay Macdonald and Lord Lansdowne expressed opinions widely different from those held by the ruling authorities, namely, the Government of the Old Country? Yet they have not been interfered with.
During the American war, meetings were held by anti-war people, at which the attempts to coerce the South to remaining in the Union were vigorously denounced. The Northern Democrats constituted a formidable minority, including ex-President Pierce and Governor Seymour; but it was only when one of his opponents, in the person of Clement Vallindigham, went into the camps and tried to induce the soldiers to desert in breach of their oath, that President Lincoln interfered.
Mr. Chamberlain opposed the Afghan war; and when accused of unpatriotic conduct, stoutly denounced the theory by which opposition was to be silenced in the pressure of foreign complications.
During the opium war with China, Peel , attacked the war, although the press and people acclaimed it. Yet we all know th’at that war is not a popular one to-day. Macaulay and other Ministers at the time objected that members should not discuss the question of peace or war, but Gladstone supported Peel in the constitutional position which he took up in expressing opposition to the war.
Coming to the struggle which took place between Great Britain and the American colonies, we know that, in Great Britain, it was as popular as any war has been. Those who were opposed to the coercion of the colonies were branded by the press as “disloyalists” and “betrayers of Old England.” The Earl of Chatham - the greatest- of the Pitts - who had saved his country, -who had established the British power in India, and who had secured Canada, everywhere vigorously denounced the war; and refused to be silenced. He publicly justified men in America who, under the law, were guilty of high treason and liable to the death penalty for taking up arms against the Crown. Burke also denounced the war, and ridiculed the idea that he, as one who was charged with a share in the public counsels, should keep silence as to projects which he thought mischievous, lest he should thereby encourage the American resistance. Burke was right, and he succeeded in laying down principles which have kept the British Dominions in loyal attachment to the Empire. It is from the time of Burke that we have gained our policy of local freedom and local legislatures.
Lord Salisbury supported the Crimean war, which is now admitted to have been a gross blunder, though later he admitted, “We backed the wrong horse,” adding that we had kept the Turk in Europe, and deprived Russia of its role as protec tor of Christians in the near East. Probably the recurrence of the horrible massacre of the Armenians by the Turks would not have taken place but for Britain’s action, in the Crimean war. Yet that war, when it was being fought, was popular in Britain.
If we attempt discussion before the outbreak of war, we are told that we are hampering the Government in its negotiations.
If. we attempt discussion during the war, we are informed that we are dividing the country in the presence of the enemy.
If we stifle discussion until the war is over, we shall be told that we are guilty of futile fault-finding.
Sitting suspended from 1 to 2.15 p.m.
– It is with some reluctance that I refer briefly to some irrelevancies which characterized the greater part of the Prime Minister’s statement. He said that the reason for this seizure was that there appeared on the front cover of th© pamphlet the imprint of tlie Commonwealth coat of arms.
I hold in my’ hand some publications upon which the coat of arms appears.
One is The Babbit Pest in Australia, by W. Rodier, with the Commonwealth coat of arms.
Another is the report of the Neutral Bay Committee of the Win-the-War League, North Sydney; it bears the Australian coat of arms.
Another is a concert programme by employees of the Commonwealth Bank, ‘ with the Australian coat of arms.
Others are Christmas cards issued by the President and Mr. Speaker to their friends, and paid for by them privately, “upon which the coat of arms appears.
The Prime Minister, however, now admits that the original reason given for this courageous action - the appearance of the coat of arms on the. reprint - was found by the law authorities afterwards to be without sufficient justification.
These reprints were produced in accordance with the Government’s own regulations. When I went to the Government Printer, I told him that I wished these to be displayed so that they would be as readable as possible to my constituents. But I asked for no concessions, and desired all regulations to be strictly adhered to. Everything that appeared in connexion therewith the Government Printer himself scrutinized most carefully.
On the inside cover there is a short note to my constituents, as follows: -
Corner Pitt and Moore streets,
Mr. J. H. Catts, M.H.R., presents for your information reprint of his speech in Parliament reviewing national questions of present and lasting concern to Australia.
None of the charges made herein have been answered by the Government.
All correspondence addressed as above promptly attended to. Interviews every Monday by appointment.
This is sufficient to show that the purpose was a circulation among my own electors, who have very few opportunities of knowing their member’s views upon current questions.
On the Prime Minister’s own showing, it was after the Government decided upon this seizure, and after it was found by the Crown Solicitor that the reason or pretence of the coat of arms thereon was absolutely insufficient, that the officers started raking through the War Precautions Regulations to see if they could be twisted to apply to Parliament itself, and be made the means for suppressing criticism of the Government’s bad administration.
Me. Poynton. - That was a violation of the postal arrangements - that thing you have there.
– As far as I am aware, there is no violation of any postal regulations or arrangements, because there is no question of postage in connexion with the matter at all. Anything of this kind in my electorate can be easily distributed from local centres to the . Labour leagues ; it is a very compact electorate.
On the question of reprints generally, it is a common occurrence. I have here reprints of speeches by the dozen on the part of Ministers and private members, set out with cross-headings, got up with nice covers, and attractively displayed.
Indeed, it would appear that the short paragraph in the speech reprinted, which has reference to a foreign Power, is a blind resorted to when the first excuse in regard to the coat of arms failed - it is in reality a fabricated pretence for prevent ing the circulation of damaging charges against this Government which had no relation whatever to a foreign Power.
Mr.McWilliams. - Why could you not have left that part out ?
– If I had thought that that small paragraph would have been the cause of any legal action, I would have readily left it out. I am under a bond of £600 to obey Regulation 28a regarding foreign Powers until after the end of the war. I am not allowed to state certain facts to the public. The legal notice I have received from the Government that they propose to estreat my bond makes my position difficult. I certainly have not wittingly or wilfully broken the law.
The Government have pounced down upon me with a double-barrelled charge - first, of having the statement in Hansard reprinted, and secondly of procuring the commission of an offence by the Government Printer by ordering a reprint. When I sawthe Hansard distributed broadcast, I considered I was perfectly justified in issuing reprints to my constituents.
If there were any justification for the exaggerated references by the Prime Minister to treason and treachery, there is a proper way to deal with such a matter in Parliament. Such a statement appears to have as its object, to prejudice the minds of members, and to influence matters now sub judice.
After traversing these side-tracking diversities, I now come back to the point at issue. It is not a question now as to what is contained in the speeches. If one looks at these speeches, there is no doubt honorable . members opposite may findgood deal to which they would take the strongest exception. That is not the point. We have to disregard these irrelevancies, and look at the main issue, which is, that there has been a military raid on the Parliament, backed by the forces of the military, to overawe and bring to naught the civil power which is represented by the Parliament.
Travelling back through history to the Napoleonic wars and the multitudinous wars in which Britain has since been engaged, there is no parallel for an action of this description. The intolerance exisiting in this country to-day finds no counterpart in
British, history since the time of the Stuarts.
In the reign of James I., in November, 1621, the House of Commons committed the heinous offence of interfering by expressing an opinion as to the relations of Britain with Spain. The King was so annoyed that he refused to consider the petition of Parliament, and, indeed, went so far as to forbid any further discussion of foreign policy. He threatened any speakers that if they did so, or attempted to do so, they would be committed to the Tower. The Parliament immediately carried a resolution from which commences the great privileges and the freedom which Britain and British Parliaments and communities have had handed down to them. This is the resolution in response to the challenge of the King : -
That the liberties, franchises, privileges, and jurisdictions of Parliament are the ancient and undoubted birthright of the subjects of England, and that the arduous and urgent affairs concerning the King, State, and Defence of the Realm and of the Church of England, and the making and maintenance of laws, and redress of grievances, which daily happen within this realm, are proper subjects and matter of council and debate in Parliament. And that in the handling and proceedings of those businesses, every member of the House hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion the same.
The King answered this declaration by a characteristic outrage. He sent for the Journals of the House, and tore out the records. A few days afterwards he dissolved the Parliament with his military forces. .
Some honorable members may make light of the occasion”, which has given rise to the exercise of this military power today, but the principle is precisely the same as in the case of the outrage of King James on the British House of Commons.
I may say that I felt proud indeed to know that in the prevailing hysteria, you, Mr. Speaker, were able to discern and discountenance an infringement upon the privileges of Parliament.
– Mr. Speaker did not refer to any breach of privilege.
– If the honorable member listened to the letter read by the honorable member for Tarra (Mr. Tudor), which was sent by Mr. Speaker to the Minister for Defence, he will have noted that it raised a question of the rights and privileges of Parliament. Mr. Speaker could go no further than he actually did in that matter.
Reverting to- the tyranny of Charles I. we have the historic Grand Remonstrance of November, 1641. Following upon this came the impeachment of the twelve bishops on a charge of, complicity in the cause of dire discontent in the Kingdom. They absented themselves from the Parliament, insisting that anything done in their absence should be null and of no effect. The Commons were further enraged because these bishops had the audacity to endeavour to exercise negative powers in the Legislature, thus arrogating to themselves the prerogatives of the Crown. This was followed by a fresh impeachment, which landed the bishops in. the Tower, at the instance of the Commons. The King, however, was so angry at the attack on the bishops that he sent the Attorney-General to the House to obtain custody of the leaders of parliament. ‘ The House sent back its reasons for refusal to this request. Charles the next day came down with his forces and raided the Par~liament. And he said to the Speaker, “ I want to know if Pym, Hollis, Hampden, Haslerig, and Strode are present.” The House of Commons had given them leave of absence, and had sent them into hiding. Mr. Speaker Lenthall’s answer to the King rings down the ages. He said to him, “ I have neither ears to hear, nor eyes to see, except as directed by this House.” That asserted the authority of Parliament over military force. The King’s reply was, “ The birds have flown, but I shall seek them out, and find them, for their treason is foul.” The Prime Minister to-day did not go quite so far as Charles I. went, but he side-tracked the issue just as that monarch and his Attorney-General sought to do in 1641. This outrage on the Parliament, this infringement of its privileges by a military force led by the King, brought about the conflict between the Army’ of the Parliament and the Army of the King, and commenced that fight which ended with the overthrow and execution of the King, and the establishment of the Commonwealth under Cromwell, leading eventually to the creation of the British Constitution ‘as we now know and enjoy it.
In principle what is now complained of is on a par with the tyranny of Charles.
In 1653, when . the Long Parliament was about to dissolve, and was making arrangements, which I. have not time to detail now, under which it would decide upon the qualification of new members and .practically control the election of the new , Parliament, Cromwell, on the 20th April, hearing that the Bill to provide for this was likely to be passed rapidly through the House, marched to Parliament with his troops, and burst into the chamber. Mr. Speaker Lenthall was in the chair, and Cromwell ordered General Harrison to drag him out. Then he had Sir Harry Vane put out, abusing him as he went, and, locking the doors after the expulsion of the members, he carried on the government of England for eighteen months without a Parliament.
The Hughes Administration, by military interference with Parliament, or with anything within its jurisdiction, committed a crime equal in principle to that of Cromwell.
In 1799, on the 18th Brumaire, General Napoleon Bonaparte with his troops surrounded the two French Councils - that of the Elders and that of the Five Hundred - then sitting at St. Cloud, near Paris, under the pretence that the soldiers had been brought for their protection. He harangued first one Council and then the other, without success, and it was not until his brother Lucien, who was President of the Council of Five Hundred, ‘had gone out and pleaded with the soldiers to stand by him, pledging himself that should Napoleon play false to the principles of the Revolution, he would strike a dagger into his breast, that they were persuaded to assist in bringing about the coup d’état which substituted the Consulate for the Directory, and four years later made Napoleon Emperor of the French. Napoleon when in power controlled the Senate, suppressed trial by jury, governed every avenue of publicity, and was thus able to direct and suppress the circulation of opinion, while the Army was won over to him by its fear of the return and hatred of Royalists.
In 1851, a nephew of the first Napoleon sought to imitate the example of his great uncle. With the aid of the military he drove the French Deputies from their Chamber, and by a second coup d’état forced himself into the position of Emperor of the French under the title of Napoleon III.
We have to go back centuries to find a parallel for the assertion by this Government of the paramountcy of the military power over the Legislative authority. If the military force can be used for any one interference with Parliament seemingly oi small significance, it can likewise be used for greater occasions, even to suppress Parliament altogether.
There are a few dates in English history which might with profit be remembered by young Australia. 1215. The Barons imposed upon King John, at Runnymede, the signing of the Great Charta. 1621. The assertion, under James I., of the rights and privileges of the House of Commons, the record being torn out of the journals of the House by the King. 1641. Under Charles I., there was the Grand Remonstrance. 1642. The impeachment of the five members, and the assertion by Mr. Speaker Lenthall of the privileges of Parliament against the military forces of the King. Almost immediately and arising therefrom came the war between the Army of the Parliament and the Army of the
King, which in 1649 led to the establishment of a Commonwealth under Cromwell. 1653. Cromwell dissolved Parliament by military force. 1689. Under William III. and Mary, the Bill of Rights was passed. 1701. The Act of Settlement under William III.
Since the last named Act was passed, every King of England has occupied the throne by virtue of an Act of Parliament, and is as amenable to Parliament as the meanest taxpayer in the realm. He is in reality the hereditary President of the British Republic.
It is our duty, as a Parliament, to extend the heritage handed down to us, and to see that the freedom of this great institution is not restricted.
Wherefore we are encompassed about by so great a cloud of witnesses, let us put aside every weight and the partyism that doth so easily beset us.
We owe a duty to our day and generation, not only to pass on the liberties and privileges we enjoy unimpaired, but to extend liberty and freedom of thought and action over an ever-widening sphere -
Go, tell thy sons.
Instruct them what a debt they owe their ancestors,
And make them swear to pay it -
By transmitting entire
To which themselves were born.
– There has been a long debate, much of what has been said being irrelevant, on the question, Does the search and seizure of certain documents by the military within Parliament House, under the circumstances referred to, without the consent of the Speaker, and at. a time when the House was not sitting, constitute a breach of our privileges? In considering this question, we must ask, first of all, what is the special privilege of which it is alleged there has been a breach ?
The House collectively, and members individually, possess certain rights and privileges, the object of which is to enable Parliament to perform its functions freely and without interruption. They are intended to provide for the fullest and freest discussion of every subject of public interest without the possibility of control or influence being exercised , on Parliament or members by any outside authority. It is not the object of our privileges to make the member of Parliament free of the ordinary laws which other citizens are bound to obey. Section 49 of the Constitution Act provides that our privileges shall be such as shall be declared by the Parliament, and until they are so declared they are those of the Commons House of Parliament. What is the privilege that it is alleged has been infringed in the case under discussion? There has been a great deal of talk about freedom of debate. ‘ But freedom of debate was not interfered with by the action to which attention has been drawn. No one denies that members enjoy unlimited freedom of debate. They may say in this chamber anything that they please, being governed in the matter only by their conscience. But if a member chooses to publish by itself a speech that he has made in this House, he must run the risks which an ordinary individual has to face in making any publication.
Mr.McWilliams. - If a member circulates the Hansard report, is he responsible for. the statements contained in it?
– The Lord Chief Justice of England has laid it down, in the case of Wason v. Waller, L..R. 4 Q.B. 89, that “ if a member publishes his own speech, reflecting upon the character of another person, and omits to publish the rest of the debate, the publication would not be fair, and so would not be privileged,” but that a fair and faithful report of a whole debate would not be actionable. Honorable members will find that recorded in May, 11th Edition, page 101.
What is the privilege of which there has been a breach in the case under discussion ? Suppose a private individual were alleged to have committed an offence by saying something calculated to prejudice our relations with a foreign Power, and he had placed in a room in this building the’ papers and documents containing the material that would provethe charge against him, would it be said that it was a breach of privilege if those documents were taken away by the proper authorities? The stones of this building do not in themselves give any immunity or extend any privilege. The free and uninterrupted privileges that members have are such as are essential to the conduct of the affairs of the High Court of Parliament.
– It is for Parliament, not for the military, to take action.
– Parliament makes laws, but it is the function of the Executive to administer them and to protect the welfare of the nation. Obviously, there would be no privilege for a private citizen in the case which I have suggested. The. action which has been complained of was taken under a power expressly conferred on the military authorities by this Parliament under the War Precautions Act and the regulations. The power of search was expressly given by that Act, which honorable members opposite introduced and supported. The Act contemplates the assistance in the carrying out of its provisions of the Naval and Military Authorities of the Commonwealth. It was an express Act of Parliament passed unanimously in the House with a view to increasing the Executive power and enabling the Executive to call in the military to their aid. Under authority of that Act, War Regulation 50 was issued giving power to the naval and military authorities, wherever there is reasonable ground for believing that it will afford evidence as to the committing of any such offence, or as to whether there is reasonable ground for believing that it is to be used for the purpose of committing an offence, to enter, if need be by force, any land, building and so forth, and search, inspect, and seise articles. Every private citizen of Australia is subject to that law; and why should there be any privilege to enable a member of Parliament to be in a position superior to a citizen in this respect? Why should a member of Parliament not be as liable as any private citizen? Power is given under the Act and regulations in the circumstances specified to enter and search any premises without exception; but honorable members opposite are trying to set up an exemption from the general law for members of Parliament. I am net discussing the merits of the particular case, but dealing with the question of privilege purely in its legal and constitutional aspect.
A plea is set up for an exemption from the general law, and the exemption from the general law is alleged to be Parliament House itself, that is, the building. In order to maintain that view in a Court of Law, it would be necessary to point out the particular privilege that gives the right; and no wonder an honorable member said this morning that the Librarian was unable to supply him with any authorities in support, seeing that there is no such privilege. Privilegesare given to members of Parliament to enable them to carry on their legislative functions, and is it necessary to that end that members shall be exempt from this law? Will it help a member to carry out his duties if papers containing matter damaging to the Commonwealth are not liable to seizure at Parliament House? In order to prove such a privilege, it must be shown that this House and building, which we call our precincts, are an actual sanctuary from the law - that in this place we are absolutely free from the operations of the law. Should that be so, and by some mischance a man with Ger man sympathies became a member, he might store explosives in the building without fear of the law; he might steal plans or other military documents and conceal them here until he could get them safely out of the country.
– What would Parliament be doing all the time?
– Parliament might not be sitting.
– Are there no other means at the disposal of the Government’ than those which were used?
– In Bourinot’s Parliamentary Procedure, a Canadian authority, are given two or three cases in point, including that of Lord Cochrane, which was mentioned this morning. In that case it was held that the building itself is no sanctuary from arrest, but that, on the contrary, a man could be arrested while absolutely sitting on the Privy Councillors’ bench in the House of Commons. May, 11th Edition, page 116, referring to this case, says -
Lord Cochrane escaped, and was arrested by the Marshal whilst he was sitting on the Privy Councillors’ bench in theHouse of Commons, on the Tight hand of the Chair, at which time there was no member present, prayers not having been read. The case was referred to the Committee of Privileges, who reported that it was entirely of a novel nature, and that the privileges of Parliament did not appear’ to have been violated, so as to call for the interposition of the House, by any proceedings against the Marshal of the King’s Bench.
Thus the House will not allow even the sanctuary of its walls to protect a member from the process of criminal law.
Bourinot, in Parliamentary Procedure, 3rd Edition, at page 148, also mentions the case of a member of the Canadian House of Commons who was, during the session of 1885, arrested and fined by an Ottawa police magistrate for an assault committed in the lobby of the House. This shows that neither the lobby nor the Privy Councillors’ bench, when Parliament is not actually sitting - I wish to emphasize that point - provides sanctuary.
-No one contends that it does ; the contention is that the use of the military force is the wrong method.
– It would seem that now honorable members opposite abandon the question of privilege altogether. The judgment of Mr. Justice Stephen in the Queen’s Bench Division of England, in the case of Bradlaugh v. Gossett, 1884, Q.B.D., contains the following: -
I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course ofcriminal justice.
The authorities showcearly that in regard to the building itself, when Parliament is not actually sitting, as in the case we are discussing, there is no sanctuary for members on account of what they do in the building, but that they are liable, like all other citizens, to the criminal law. If members are liable under the criminal law, then Executive authority may be invoked in aid of the criminal law in connexion with a criminal case.
– In connexion with the safety of the Empire.
– Yes. The offence itself is of a particular kind, and, to my mind, one of the most serious that could be committed at the present time. The very safety and well-being of the nation may be involved, and Parliament, by the War Precautions Act, intended to give the Executive the fullest authority in that regard; the fabric of the Act shows that the military power might be called in to aid.
In this case certain papers were concerned, and, clearly, under the law the military had the right to search anywhere for them.
– Do you believe that the military have the right to come within these walls ?
– I have read the section of the Act.
– Have the military the right to come here now ?
– When Parliament itself is sitting, in a collective body, as to-day, we have the fullest power and privileges in regard to ourselves. But the collective privileges which we have while sitting here collectively do not attach to us always in the same respect when individually we are scattered over Australia, though certain privileges are personal. Members of Parliament areamenable to the law in the same way as are other people, but the rights and privileges of Parliament are of the highest character, and Parliament is, very properly, most jealous in preserving those rights and privileges. Honorable members opposite are making accusations against the Government, although it is their duty to aid the Executive in the administration of the law. In discussing this matter, I have not referred to any individual, but have dealt with it in a dry, constitutional aspect.
– It is a very weak exposition !
– That is a matter of opinion, but if my argument is weak, then May is weak, Bourinot is weak, the Act we passed isweak, and the judgments given by the Courts are weak. I have given the authorities upon which I rely, and I challenge honorable members opposite to give me one single authority to establish the principle that this House is a sanctuary, when Parliament is not sitting, for the storage of documents or instruments that may be dangerous and imperil the welfare of the nation.
.- The honorable gentleman who has just resumed his seat has, indeed, given us a splendid example of special pleading, and, from that point of view, has presented a very finecase. But when we consider the essential principles involved, we find that the honorable gentleman has wandered quite away from the question. It is not a matter merely of the rights and privileges of an individual member, or of the members of the House collectively, but of the whole principle of the system of government under which we live to-day. That system is ours now after very many years of fighting and sacrifice of life, in order that the people of British communities might govern themselves as they choose. The people are represented in our Parliaments by elected citizens, and these, on assembling, elect their officials, including the Speaker, who is the custodian, not so much of the privileges of members as of the system of government for which Parliament stands. To enable Parliament to carry on its functions, the members thereof have been given what we call privileges, not enjoyed by ordinary citizens outside. The reason for this is that, when a man enters Parliament, he may be at perfect liberty to say and do what he considers right in the interests of the people who sent him there.
– Within the law.
– A member of Parliament has the perfect right to say what he likes, and advance any argument he likes, in the House in conformity with the rules of the House; the only law governing
Parliament in a British community is contained in the rules of the House itself.
– According to the last speaker, Parliament itself could be abolished by regulation.
– I was just about to deal with that point. The Minister (Mr. Groom) attempted to support his case in a most ingenious way that could occur only to a legallyminded man. He told us that we have passed a War Precautions Act, under which regulations have been issued, giving the right of entry, and search, and seizure on any premises in Australia. Does that mean that, by regulation, the functions of our parliamentary system may be abro gated, and our rules thrown into the waste-paper basket? If the argument of the Minister is sound, it means that, by a regulation, under the War Precautions Act, Parliament may be shut up tomorrow.
– The Minister’s argument was the very opposite.
– It was not; he distinctly told us that the regulations give the power of search and seizure in any premises or building in Australia. He went on to inquire why honorable members while in this building should ask to be exempt from a law that applies to every other citizen of the Commonwealth. It is well we should know whether his argument is correct or not. If it is, then we may say “good bye” to our system of responsible government as we know it to-day, since it means that the people of Australia no longer enjoy the privileges of responsible government.
– The honorable member himself does not believe that.
– I believe that the Minister’s argument is not correct. This is a question affecting not only the honorable member particularly concerned, but the Parliament as a whole, and if the House allow the action of the military authorities to go unchallenged merely because the offence was committed against an honorable member of the Opposition, it will create a precedent which honorable members will live to regret. The right we possess to govern ourselves is something that we should always jealously guard; we should see that it is never infringed. Honorable members opposite govern this country to-day because the people gave them the right to govern, and it will be a bad day for Australia - a bad day for the freedom of this country - if we allow the principles of our parliamentary system <to be lightly interfered with.
.- During the twenty-five years that I have sat in this building, first as a member of the State Parliament, and subsequently as a member of the Commonwealth Parliament, I have never known such an occurrence as that which we are now discussing.’ Had it happened twenty years ago, both the Liberal and Conservative parties in the State Parliament, which then met in this building, would have united in resenting it. Some time ago, when a number of our brave boys who were about to leave for the Front were parading through Melbourne, I was stopped as I sought to enter this building. I asked by whose authority I was thus intercepted, and when I was told that it was the military authority I promptly replied that I did not recognise it, and pushed my way in. I had with me my member’s badge, and it was my authority for demanding access to this building. I resented that action on the part of the military authorities just as I resent the incident with which we are now dealing. Our parliamentary system is such that the poorest man in the land may enter this chamber, and give utterance here to his inmost thoughts. But for the privileges attaching to Parliament, what chance would a man of limited means have of entering this House and exposing a wrong or an infamy? He would be immediately made insolvent by process of law, and his seat would be declared vacant. If this sort of thing is to go on, we may before long see something th at I never thought possible in Australia. I have always gloried in the idea that Parliament is absolutely pure, and free from bribery and corruption. It is not free from- bribery and corruption to-day. Infamies are being perpetrated which I thought impossible. On every hand prices are going up, and profits’ are increasing. I invite honorable members to examine the Bulletin issued weekly to see whether there is a case where big profits are not being accumulated. They will not find one. Very little is being done to check this profiteering. Is it possible to have honesty in politics ? With the Parliament as at present constituted I have many and serious doubts. Parliament is the only created thing on God’s earth that can make itself more powerful than its creator. The people who create this Parliament will never be able to prevent that until they have the right by petition to demand that a member’s seat shall be declared vacant, and a fresh election take place within three weeks. When it is possible to hand to the Clerk of Parliaments a petition signed by 30 per cent. of the electors of a division praying that the seat shall be declared vacant, and when effect must be given to such a petition, there will be an end to political somersaulters of the Peacock type. The people themselves will then have control. Every honorable member, when he is seeking election, declares that he glories in being the servant of the people. But that state of mind seems only to last until he can secure a majority, and is safe for another three years.
I heard but the concluding portion of the speech made by the Minister for Works and Railways (Mr. Groom), and I can describe it only as an excellent piece of sophism. Many good men have been spoilt by their training as lawyers. It is a training that makes sophists of many of them. They are prepared to argue on one side or the other provided the fees are forthcoming, and certainly the greater part of the Minister’s utterances that I heard was pure simple sophism. The Government are in power to-day owing to a combination of circumstances which no one thought possible, but they are not going to remain in power for all time. They are not unchangeable. A day will come when they will have to give way to others - perhaps to men holding even more advanced views than we profess. And if those men make use of the War Precautions Act, supporters of the present Government, whether they be in Parliament or not, will have reason to regret that by their votes they created such a precedent as they seem likely to create to-day. In one year 331 regulations have been issued under the War Precautions Act. Can any lawyer say that he understands them ? It may be said that they are not laws but regulations. But if under them a man may be fined or imprisoned, then whatever you may call them, they have the force of law, although they were never debated in this House.
I propose now to make a short quotation from May. I object to the servile language employed in it, but it may be excused, having regard to the fights for liberty that have taken place in the Old Land to which it applies. Right down from the time of William the Conqueror to the infernal reigns of the four Georges, there have been fights for liberty and freedom in the Old Country, with the result that we have to-day a limited monarchy. If it were an unlimited monarchy I would not respect it. Honorable members will not find in the political text-books of the Republic of Switzerland, or some of the big Republics of South America, language so servile as that contained in the quotation which I propose now to make from page 63 of the 12th edition of May -
Both Houses of Parliament enjoy various privileges in their collective capacity, as constituent parts of the High Court of Parliament, which are necessary for the support of their authority and for the proper exercise of the functions intrusted to them by the Constitution. Other privileges, again, are enjoyed by individual members, which protect their persons and secure their independence and dignity.
Some privileges rest solely upon the law and custom of Parliament, while others have been defined by Statute. Upon these grounds alone all privileges whatever are founded. The Lords have ever enjoyed them, simply because “they have place and voice in Parliament”; but a practice has obtained with the Commons that would appear to submit their privileges to the royal favour. At the commencement of every Parliament since the6th Henry VIII., it has been the custom for the Speaker - “In the name and on behalf of the Commons to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly that their person (their estates and servants) may be free from arrests and all molestations; that they may enjoy liberty of speech in all their debates; may have access to His Majesty’s royal person whenever occasion shall require; and that all their proceedings may receive from his Majesty the most favorable construction.”
To which the Lord Chancellor replies that - “ His Majesty most readily confirms all the rights and privileges which have ever been granted to or conferred upon the Commons by His Majesty or any of his royal predecessors.”
Then in a footnote we have the further statement that -
The claim of privilege in respect of their estates was omitted for the first time on the 5th November, 1852. The claim for servants was retained until the 5th August, 1892, when.’ the claim was omitted, their privileges being wholly abolished. - See page 106, 7 Parliamentary Debates 4, s. 18. The officers of the House are still privileged, within its precincts. - 2 Hatsell, 225; Colchester, i., 65.
I desire to congratulate you, Mr. Speaker, on the action you have taken to conserve the rights and privileges of honorable members generally. Knowing you, as I have, for many years, you will, perhaps, permit me to say that in this matter you have done your duty just as I should have expected of you. I could say no more of any man.
Some time ago I wished to circularize the old-age pensioners, and when I proceeded to do so, certain inaccurate statements were made in the newspapers. I obtained leave from Mr. Speaker and from the Government Printer to use a stamp, and to pay for the official notepaper and envelopes which it was my right as a member to use. I am not astonished that the Law Department should object to the Australian coat of arms being placed on a reprint of the speech delivered in this House by the honorable member for Cook (Mr. J. H. Catts). It appears as if the Government are about to create a precedent, and I warn themthat their action will not be forgotten here orby the outside public. That precedent will be followed.
This is another instance of that infamous system of governing by the War Precautions Act. Many times have I heard honorable members opposite refer to the promise made by Mr. Fisher regarding “ the last man and the last shilling,” but another promise was given to me, and to every honorable member of the House every time a Bill relating to the war was brought before the House. On each occasion I asked whether the civil power was dominantover the military power. I was assured that it was; but, notwithstanding that assurance, the military power is dominant to-day. Every promise in that respect given by Mr. Fisher has been absolutely broken; and I ask honorable members on both sides of the House to come together to resist this infringement of our privilege, and by their votes compel the return of the documents which were wrongly taken from this House. It will then be for the House, acting within its sovereign rights’, to consider the matter at the instance of Mr. Speaker, and if there is anything objectionable in connexion with the reprint of the speeches of the honorable member for Cook, theHouse can decide accordingly. If the House takes that action, the finger of scorn cannot be pointed at us; but if this motion is defeated, the House will be indorsing an unjust action committed by the Government by reason of the powers which the War Precautions Act has placed in their hands.
– Although I have never claimed to have much knowledge of constitutional law, I have always understood that this House was immune from intrusion by outside bodies, especially the military.
– Mr. Speaker McDonald had detectives in the building while the House was sitting.
– They were present by the authority of the Speaker, but the action to which we are objecting was taken in defiance of the Speaker.
– That makes no difference. Mr. Speaker McDonald allowed detectives to enter the building, and to accost members when the House was in session.
– Even that incident proves that the House and its officers are supreme. There are a lot of formalities connected with parliamentary procedure, such as messages from the Crown, and so forth; and many of the “outside public consider those formalities foolish and unnecessary; but when a man has served in this Parliament for some time, he finds that many of the formalities are necessary, because they were instituted for the protection of the people through Parliament. If the military authorities are to be allowed to enter this building, and do as they think fit, we shall soon return to the period when the King could do as he liked, and Parliament then will be useless. Even if the High Court of Australia, or the Supreme Court of any State, desires an officer of this House to give evidence, or produce a document, the permission of the House must be obtained. The highest Court in the land has not power to subpoena any officer of Parliament, or demand the production of any document, without the permission of Parliament itself. Yet the military authorities claim the right to come here, and do as they please. If this precedent is allowed to pass unchallenged, where will the matter end? Honorable members opposite’ are playing with a two-edged sword. Feeling safe with their majority, they may make this a party question ; but
I advise them that a precedent is a nasty thing to establish, because often it “becomes accepted as the law. It behoves honorable members to decide that the action taken by the military in connexion with the matter under discussion shall not become a precedent.
– I understand that one member of the Government has claimed that, because members of the Labour party passed the War Precautions Act, they are responsible for the action of the Prime Minister (Mr. Hughes) .
– That argument was not used.
– It is true that the Labour party introduced and piloted through Parliament the War Precautions Act; but when we agreed to that statute we knew that Mr. Fisher was Prime Minister, and we had a great deal of confidence in him. We all recognised that tremendous powers were required to enable the Government to carry on this war; but some of us were afraid that the War Precautions Act might be used to do injustice to some enemy aliens who had’ become naturalized, and who are as good citizens as native-born Australians. We never imagined that the Act would be used as an instrument of tyranny, as it has been by the present Government.
I ask honorable members not to treat this as a party question, although I am very much afraid that it will be so treated, because it does appear that in modern times, since the advent of Labour into politics, all the traditions which used to govern parliamentary procedure, and direct the actions of GovernorsGeneral and Governors have gone by the board. There was a time when, if an ordinary private member succeeded in carrying a resolution against the Government, he was sent for by the Governor, and given a commission to form a Ministry, if he could. I instance the case of Mr. Jack Want, in the Parliament of New South Wales. But that is not the practice nowadays. Only recently, in the Victorian Parliament, Mr. Elmslie succeeded in carrying a resolution against the Government; but was he commissioned to form another Ministry ? No ; a canvass was made, and somebody else was intrusted with that responsibility. And I am afraid that honorable members opposite intend to vote against this motion on party grounds, although they know that the action of the Government was wrong. »
I warn honorable members no% to allow the, military authorities to believe that they can do as they like. I remind the House that the capital city of Washington was founded in consequence of an act of aggression on the part of the military.
At the close of the war between Britain and America, in 1783, a number of returned soldiers decided to approach the Legislature of Pennsylvania, and on their way they collected further soldiers from the barracks. They visited the legislative building, posted soldiers at every entrance, and. sent in a written message that if their demands were not conceded in twenty minutes, they would let loose the soldiers on the members. That action led to Congress deciding to establish a Federal capital city, where Parliament might be free from molestation by the military. These facts are related in Our First Century, a book published in the United States.
– I wish we could, follow their example.
– It is time that we followed that example, and established a Federal Capital territory, in which the Parliament of the Commonwealth would be beyond the reach of any military authority. I ask honorable members to take note of that incident in American history. The Government are doing very little in connexion with their repatriation scheme, and returned soldiers are seeking employment at bone collecting and rag picking. If we allow the military to think that they can invade this building, and search the rooms of private members, we shall find the returned soldiers marching to this building, demanding to know what has become of the repatriation scheme, and, possibly, as happened in America, stationing soldiers at the entrances, and giving Parliament and the Government twenty minutes in which to fulfil our repatriation promises.
Surely honorable members of this Parliament’ may be permitted to do what is being done in the House of Commons. In the Mother of Parliaments there is the freest discussion. Let honorable members read the debates as to the qualifications of General Haig and General French.
There is no attempt in the House of Commons to limit the right of honorable members to speak on any subject, or to prevent the distribution of Hansard. Nor is there any attempt in the Japanese Diet to prevent anybody discussing the relationship of Japanwith any of her Allies.
Are we to submit to the idea of that petty little tyrant, the Prime Minister (Mr. Hughes), that the government of this country must be carried onby him, and those poor, weak men who are members of his Cabinet? I object to the attitude of the Prime Minister, and in the interests of the public we ought to protect our privileges. The Prime Minister has said a great deal about the statements made by the honorable member for Cook (Mr. Catts) regarding our relationship with Japan, and we are told that the Government will not allow us to say anything which might hurt Japanese feelings. But while, with their tongues in their cheeks, they are concerned about the feelings of Japan, they have not so much regard for the pockets of the Japanese people. There is in this chamber a member of the Wool Committee, and I submit to him, and to the members of this House, that what the honorable member for Cook said in reference to Japan does not weigh as a feather with Japan in comparison with the action of the Government, in the interests of the personal friend of the Prime Minister, Mr. F. W. Hughes, and the Colonial Combing, Spinning and Weaving Company, in preventing Japanese buyers from getting greasy or scoured wool.
-I am afraid that has nothing to do with the motion.
– May I point out, Mr. Speaker, that the Prime Minister has said that the honorable member for Cook has made a statement regarding Japan which he ought not to have made, and which is likely to prove offensive to Japan. I am merely remarking that the action of the Wool Committee in preventing Japan from getting supplies of greasy or scoured wool is doing much greater harm to that country than anything that could be said by a member of this House. Let not members of the Government deceive themselves. The Japanese people have their eyes open, and the public opinion of Australia does not approve of
Japan being prevented from getting greasy and scoured wool.
– Every pound of Australian wool was sold eighteen months ago to the Imperial Government.
– The statement of the honorable member for Capricornia is not true.
Mr.HIGGS.-I say that it is true.
– It may be politically true.
– It is absolutely true. I challenge the honorable member. As a matter of fact, he would say anything.
– I object to the remark of the honorable member.
– Does the honorable member rise to a point of order ?
– No. But I object to the honorable member’s statements.
-The honorable member thinks that we are in a sheepyard where we can say anything to his compatriots.
– I ask the honorable member to address his remarks to the matter before the Chair.
– It is quite true that for a period wool was prohibited from going to J apan. I believe that recently the Central Wool Committee and the Prime Minister havebeen allowing a certain quantity to go to that country.
– The matter is entirely in the hands of the Imperial Government.
– Does the honorable member deny that Japan has been prohibited from getting wool from Aus tralia ?
– If the forms of the House allow me to do so I will totally deny it. The matter is entirely in the hands of the Imperial Government. They say whether Japan shall have wool or shall not have it.
– As a matter of fact, I have among my papers a statement by a representative of Japan, who had to go to South Africa to buy wool. He says that the Japanese were compelled to go to that country to buy wool because they could not get any from Australia. A representative of the Japanese has been endeavouring to purchase greasy and scoured wool in Australia, and was not able to get it until recently, when a certain quantity was released.
-That statement is not correct.
– The honorable member will have an opportunity of bringing forward documentary evidence, and I suppose that I shall have the same opportunity in the future. The talk of the Prime Minister about the statement of the honorable member for Cook (Mr. J. H. Catts) being likely to cause inharmonious relations between England and her Allies is all so much bluff. The Prime Minister has the habit of exaggerating and bluffing the House. He says that he would notgive anything for the position of Australia in twenty-four hours if certain action sought to be taken by us was to be regarded as the opinion of the House, but I would be very sorry if the Japanese people would regard as representative of the public opinion of Australia the actions of the Prime Minister in regard to the restriction against wool being forwarded to Japan.
I suppose that in the present state of mind of honorable members opposite there is no possibility of this motion being considered as anything but a party matter. Iregret this, but if any of the representatives ofthe people on the other side of the chamber seek to do their duty, I believe they will be found voting with us on this occasion.
.- As one who at all times renders what assistance he can with the object of maintaining our parliamentary privileges, I feel that this is an occasion when honorable members should come to the support of Mr. Speaker in the action he has taken. It is very humiliating to hear the Leader of the Government(Mr. Hughes), instead of supporting the action of Mr. Speaker, trying to do the very opposite, and seeking to justify the action of the military authorities. We have been told by the librarian that it is very hard to find any cases in which the privileges of Parliament have been invaded. The reason is obvious. The privileges of British Parliaments have been so jealously guarded that no occasion has arisen in which they have been invaded. There are very few persons in any country where the British Constitution exists but have pride in their parliamentary institutions. There is so much endeavour to conserve those privileges that no individual in the community has ever made an effort to overstep them. They are so much in the interests of liberty that no person will make any attempt to infringe them. At the time of the Fenian outrages in England, and on the occasion when one of the walls of the Clerkenwell prison was blown in, killing a number of people and frightening thousands, the Duke of Cambridge, as Commander-in-Chief of the British Army, approached the Speaker of the House of Commons with the offer of the services of the military forces to protect Parliament House, but the Speaker, in the most dignified manner, said, “ No. Parliament cannot accept the aid of the military forces to guard the precincts of this place. The police and the civilian authorities are quite strong enough to do so.”
I feel that the members of this House have not risen to the occasion. They are lacking in dignity. They do not show that respect for their predecessors that they should display. There seems to be too much of the party aspect about the matter. Honorable members opposite seem to concentrate their minds simply on how any matter is likely to affect the party. When the people of Australia have the opportunity of judging the conduct of those who refuse to support the action of the Speaker in regard to this seizure by the military forces against his expressed will, they will know what to do with them, and will see that in future they will have no further opportunity of neglecting to uphold the privileges of Parliament. Honorable members seem to be bereft of all sense of their responsibility to maintain the privileges they possess. This matter should have been debated in a manner worthy of a British Parliament, but except for what has been said by a few honorable members sitting in Opposition there does not seem to be sufficient stamina or courage in the House to maintain those privileges for which Sir Henry Parkes, Mr. Deakin, and other men would havestood up in the State Houses.
I am sorry the Prime Minister has not sufficient courage or sense of responsibility in regard to the future liberties of the Parliament to rise to the occasion and commend the Speaker for the action he took. I make no reference whatever to the incident that brought this matter about. There may be some justification for condemning the honorable member for Cook (Mr. Catts), but for the moment that matter is not before the House. What is before the House is the question, whether we agree with the action of the military in walking into the precincts of this House against the wish of Mr. Speaker and seizing documents with which they had no right to interfere, or whether we support Mr. Speaker in maintaining that they should not interfere with any papers or documents in the possession of this House, or of any member of it. When we passed the War Precautions Act it was never intended that a regulation should be made that would stifle Parliament and the right of its members to give expression to what they believe to be the will1 of. the people of Australia. Every honorable member should rise to the occasion and support Mr. Speaker, so that similar action may be prevented on future occasions. I would prefer the appointment of a Committee of five or six members of this House, and that the persons who made that raid on Parliament. House should be brought before the bar of the House, because then Parliament could set out the punishment that- should be inflicted on ,;those persons who infringe its rights and liberties.
This Parliament is the highest Court in Australia. There is no appeal from its judgment, yet pigmies - I can call them nothing else - would allow all the privileges gained for them by their predecessors in British Parliaments, by men who stood for liberty and progress, and laid down precedents for our guidance in governing our country, to be swept aside.
When I have an opportunity of consenting to expenditure upon an oil painting of a distinguished Australian statesman I shall lift my hat out of respect to the man who has been ready to uphold, maintain, and hand down to us the privileges that Parliament possesses, but I am satisfied from what I see to-day that some honorable members opposite seem to have so little respect for the men who have done so much for us, and given us so many opportunities to express the will of the people, that they would allow the military forces to enter the precincts of the Parliament House of a democratic coun try where the people are elected by adult suffrage, and take away documents and papers which may be valuable to the institution in conducting its business on behalf of the people.
I understand that the Government want to close Parliament again. It seems that since the Labour Government was turned out of office Parliament meets only with the one ambition - to open the doors and close them again as soon as possible, and smother the voice of the representatives of the people. I am endeavouring to comply with the wishes of honorable members by speaking as fast as possible, in order to say what I have to say in as short a space of time as possible, so that the vote may be taken this afternoon. I regret from the bottom of my heart that I should have to sit in a Parliament where so little attention is paid to the privileges which are so essential to the liberty of the people of the Commonwealth.
– I desire briefly to place on record my protest as one of the representatives of the people against the outrage instigated by the Minister for Defence (Senator Pearce) upon the rights of the citizens of Australia in general, and the privileges of the members of this House in particular. I do not pretend to any extensive constitutional knowledge of the question. I am not concerned so much with the traditions regarding constitutional procedure as I am with the fact that one of the Ministers of the day should have used his political power and the position he occupies as head of the Military Forces for the purpose of gaining a political advantage, using it as a partisan to further the interests of his own political side. We have heard the statement made by you, sir, and have heard it criticised by the head of the Government. We have heard it laid down that because statements made in the House are likely, in the opinion of the man who happens to be Prime Minister for the moment, to cause suspicion or prejudice in a country that is allied with Great Britain in the present war, the speech containing them must not be permitted to circulate amongst the citizens who returned the member making it to the House to represent their interests.
In short, we have been told that the common people outside Parliament are not to be permitted to know what their representatives say here. It is rather amusing to .find so much anxiety displayed on behalf of one of the Powers with which Great Britain is allied. Last night the honorable member for Hindmarsh (Mr. Archibald) waxed very eloquent in his description of another Power - the Russian Bolshevik Government. Nothing was too vile or too abusive for the honorable member to say about that Power. His remarks will be incorporated in Hansard, just the same as those of the honorable member for Cook (Mr. Catts) ; but I wonder will the same procedure be adopted towards the honorable member as has been adopted towards the honorable member for Cook. The remarks of the honorable member for Hindmarsh concerned a Power of which we read the following in last night’s Herald, as published in the London Times, and therefore I suppose it will be accepted by the honorable gentlemen opposite with great gusto, coming as it does from, the Northcliffe press -
Telegraphing from Petrograd The Times correspondent there states that the Finnish White Guards, officered by the Germans, are marching in the direction of Kern, on the White Sea, with the view of cutting off the Murman railway. The Bolshevik and AngloFrench authorities at Murmansk have combined, with the approval of M. Trotsky, Commissioner for Military Affairs, to defend the line.
The Anglo-French authorities agree to recognise the authority of the local Soviet and supply the requirements for the Red Army, which is now being formed. As the Archangel route will be blocked for the next two months the loss of the Murman railway will leave Petrograd surrounded by Germans.
– Order I I ask the honorable member not to proceed with that matter, which has no relevancy to the question before the Chair. It relates to another debate altogether.
– I have finished the quotation. The point I wish to make is that reflections have been made in this chamber by a Government supporter in the most scurrilous fashion upon a Power allied with Great Britain at the present moment, and it will be well for the people outside - the masters of the men in this Parliament - to note the different treatment accorded to members on the
Government side of the House and to members on this side. It will be well for them also to bear in mind the attitude of the Government as defined by the Prime Minister to-day on the question of the invasion of this House by a military force, and contrast it with the attitude of the Government when Miss Adela Pankhurst and her friends approached this Parliament, and the people were starving outside. Their protests about the starving people were met with the statement that “We must preserve the privileges and rights of Parliament against popular demonstrations.” But there is another side to the picture now. When political advantage can be gained, or personal spite can be gratified, by the entrance of the military authorities into this building at the dictation of a member of the present Government, it is done. I hope that this debate will not be lost upon the people outside, but that they will note it for future reference and future action.
Mr. TUDOR (Yarra) [3.511.- The Prime Minister (Mr. Hughes), in his statement, never met the charge at all. Honorable members know that he was prepared, when he rose, to move an amendment. He said, “ I will now move,” and another of his Ministers said, “ No ; there is no need to do it.” The Government knew then that they could get a majority of members to vote against this motion. If honorable members were to vote in accordance with their consciences, and not in accordance with a party decision, or with the desire of the Government, the motion that I have moved, or some modification of it, would be carried nearly unanimously.
– That would have been so last night, but you did not vote ac- cording to your consciences.
– We offered an amendment last night, but, of course, it was not accepted. The Prime Minister did not in any sense or shape meet the question which I raised, that if this motion is defeated the military will be given a power which they did not possess, so far as this Parliament was concerned, previous to this occasion. The Minister for Works and Railways (Mr. Groom) said that we had passed an Act which made every one liable. Of course, every Act makes every one liable, but certain privileges are inherent in Parliament and in every elected representative of the people. We can say here things that we are not permitted to say outside. Legal men on the Government side know that that is so. That is one of the rights given to us in order that justice may he obtained. On one occasion the honorable member for Perth (Mr. Fowler) made, from his place in this corner, statements which he was told that he would be liable for if he made them outside. ExSenator Watson, who was defeated at the last election, made a certain statement in the Senate, and was told, “If you say that outside you will be ‘had.’” Certain members of the Queensland Parliament made statements in Parliament, and afterwards went outside and made them, but they were not “had.” We have rights inside Parliament, and the War Precautions Act was never intended to operate here. The Minister for Works and Railways drew a fancy picture, that we might use Parliament for the purpose of storing things. He said that if any pro-Germans were in this Parliament they could use it practically as an arsenal or a munition dump. The Minister need not be afraid of that, so far as anybody on this side is concerned. We have never appealed for the German vote in this German language, as certain honorable members on the Ministerial side of the House did on the 5th of May last.
– I made no personal reference to any one.
– Nor am I making any. There is only one party that the War Precautions Act is ever put into operation against, and that is the party opposing the Government. No newspaper has been prosecuted for publishing anything unless it was an opponent of the Government. No member has been prosecuted under die Act unless he has been an opponent of the Government, and it is only because the honorable member for Cook (Mr. Catts) is a member of this party that this action is being taken to-day. Honorable members are allowing their judgment to be clouded and warped because the member concerned happens to belong to this side of the House; but I hope that, even now, they will vote in accordance with their con sciences. The Prime Minister said that action was first going to be taken because the Australian coat-of-arms was on the reprint. If the printing of the coatofarms on anything makes the Government responsible for the contents, what about the Argus and the Age, which come out every morning with the British: coatofarms on them? The very issue of our Australian Hansard which contains the speech of the honorable member for Cook was published with the British coatotarms on it. Apparently, the Australian coat-of-arms is repudiated altogether so far as our Hansard is concerned, but I hope that, now attention has been directed to the matter, we will be Australian at least so far as to have our own coat-of-arms on our own Hansard. . The Minister for Works and Railways said . also that the War Precautions Act was all-powerful, and that under it the Government could bring forward regulations to operate against members of. Parliament.
– I did not say that.
– If it is all-powerful, the Government can abolish Parliament itself, and set up the Prime Minister as a dictator, as he very nearly is to-day. A statement of his that was made upstairs this week runs, “I outlined the shipbuilding proposals; I did this; and I did the other.” The capital “I” runs through the whole of the statement. The Minister said, also, that at the time Parliament was not in session.
– I said Parliament was not sitting at the time.
– Parliament was in session at the time the seizure was made.
– But hot sitting.
– Of course it was not sitting, nor will it be sitting in another quarter of an hour until next Wednesday. If honorable members, vote, as apparently a lot of them are going to do on this question, they will abandon one of the greatest privileges that we have - the right of publication of our speeches. We suffer more on this side than do honorable members opposite, because they have the press yelling for them every day, as 99 per cent, of the papers that are published “barrack” for them. Honorable members on this side of the House only have an opportunity of reaching the people through the public platform or by the distribution ofHansard speeches, and unless the House takes a stand now any honorable member may be liable for the same treatment as has been meted out to the honorable member for Cook if he reprints his speeches. I trust honorable members will regard this matter quite apart from the fact that the member concerned is connected with the party on this side of the House, and that they will vote to uphold the privileges of Parliament.
Question - put. The House divided.
Majority . . . . 17
Question so resolved in the negative.
Motion (by Mr. Joseph Cook) agreed to-
That leave of absence for the remainder of the session be given to the honorable member for Robertson (Mr. Fleming) and the honorable member for Adelaide (Mr. Yates), who are absent from the Commonwealth with the Australian Imperial Expeditionary Forces; also to the honorable member for Corangamite (Mr. Manifold) and the honorable member for Bourke (Mr. Anstey), who are absent on urgent private business.
– I have to announce to the House that I have just received the following communication from the honorable member for Flinders (Sir William Irvine) : -
The Honorable the Speaker,
Sir, - I have the honour, under the provisions of section 37 of the Constitution, to resign my place in the House of Representatives.
I am yours respectfully,
Appointment as Chief Justice of Victoria - “ Age “ Newspaper Report - Censorship: Wheat Pool - Ministerial Statement.
– In moving
That the House do now adjourn,
I desire, without taking up unnecessary time, to say that I learn of the resignation of Sir William -Irvine asa member of this House with somewhat mingled feelings. I say frankly that I regret to hear it very much, because it means the loss of the honorable gentleman from this Chamber, and I feel also that his absence will be a distinct loss to Parliament. His high character-
– You are opening up a big debate.
– Well, I intend to speak as I think. I say that his absence from this House will be a distinct loss to Parliament. His high character, his splendid abilities, his judicial temperament, enabled him to fill a unique position in this Chamber.
– He robbed the citizens of Victoria of their rights. He brought about a reduction in the old-age pensions.
– I can only say that I believe-
– Too cowardly to goto the Front.
– Order !
– I can only say in conclusion that, in my opinion, Sir William Irvine will adorn the high office of Chief Justice of Victoria, and I congratulate the people ofVictoria upon the appointment.
– I desire to correct a mistake made by the Age newspaper in its report to-day of the division on the motion yesterday _ relating to the war and expressing admiration for the valour of our troops. It was stated that a certain number of membersvoted against and a certain number for it. There was no division upon the motion itself, but there was a division upon an amendment submitted by Mr. Higgs, who sought to add these words -
And in order that the sacrifice of valuable human lives may be stopped and an end put to intolerable human suffering, this House is not opposed to peace by negotiation.
I could not vote against anything affirming that the House was not opposed to peace by negotiation, so I voted for it, but when the amendment was disposed of, the original motion was put and carried unanimously.
With reference to the remarks .made by the Minister for the Navy (Mr. Cook) concerning the resignation of Sir William Irvine, I want to say that I think it is a mercy he is removed from this House. There is not a public servant in Victoria, not a policeman, and not a railway official, who does not hate and loathe the name of the man who robbed them of their rights of citizenship. When a member of the State Legislature, in this very chamber, he introduced two Bills, one the most vile coercion Act that was ever initiated in an English House of Parliament. Any member who cares to read Hansard of the 1906 session will see there that Sir William Irvine took what was considered in the House as a bribe of £2,000 from Flinders Lane. He was not man enough to take it himself, so he pushed his wife forward, and in that way took it from the Flinders Lane crowd. When I challenged him in his place to offer his services to the Empire, this man, who has always been howling for other’ women’s sons to go to the Front, -declined. His biggest supporter in the Mornington district, in the person of Mr. Lindley, said that he would go with me to clean his car if Sir William Irvine were plucky enough to drive it at the Front for the benefit of soldiers who were suffering from ill-health. On another occasion I intend to give the House the record of one of the vilest men who ever left Ire land. It seems to me that when men are appointed to the judicial bench they must become so fossilized as to be quite unfitted to fulfil the highest position there. One would have thought that a man with eight or ten years’ experience of judicial duties would be better qualified to fill the position of Chief Justice of this State than would an individual who is taken fresh from the Bar. We all know that when the late Chief Justice was appointed to the position which he so well adorned, Mr. Justice Hodges resented his appointment very deeply, as did also Mr. Justice Williams. If this matter is brought forward again, I will give the record of the man who has stained the statute-book ot Victoria with two vile Acts, one of which was unanimously repealed by both Houses of the Legislature. God knows how Sir William Irvine got his title,. Was it for robbing men of their rights of citizenship ? I know that the people of Victoria will have less respect for Sir William Irvine, as Chief Justice, than they have had for any other man who has filled that high and honorable position.
.- I have listened with the greatest regret to what the honorable member for Melbourne (Dr. Maloney) has just said. I have been some years in this chamber, and the one thing upon which we can congratulate ourselves is that, outside of our political differences of opinion, we entertain a generous feeling towards each other. In the ‘ absence of that feeling, many of our deliberations would be poisoned by bitterness which would make the public life of this country very difficult. Of course, every man is entitled to his opinion. But I have been in this chamber for several Parliaments with Sir William Irvine. I have not been able to agree with everything to which he has held most strongly. I do not know - and I, do not care - anything about his past political history in this State, but I do say that, among all the men whom I have met- and I will say it either inside or outside of Parliament - I have never met a more honorable gentleman, a more free, fearless, and impartial critic, than he who has just been elevated to the position of Chief Justice of Victoria.
.- We have become so accustomed to the use, for party purposes, of military regulations in connexion with the censorship that it seems almost impossible to shock the minds of honorable members by reciting fresh outrages perpetrated by the Government. But for the benefit of those who profess a special regard for the interests of the farming community, the fact should be placed on record that the Government have now taken steps to prevent legitimate criticism, by the farmers themselves, of the management of the Wheat Pool.
A meeting of the North-west Council of the Victorian Farmers Union was held at Ouyen on 13th March last, and in the local newspaper, which was published the following week, this statement appears : -
Printed and published by Ray S. Ritchie, trading as Ritchie and Son, at the Ouyen Mail Office, Oake-street, Ouyen, in the State of Victoria.
Our readers will be rather surprised to know that the censor has so far mutilated our notes of the speech of Mr. Giles, at Ouyen, on Wednesday night, that we do not consider the remainder worth publishing. It is a big compliment to the Mail to know that items pubshed in it will probably interfere with the winning of the war, but such apparently is the case. Mr. Giles gave some very informative figures, but we must not tell them out in our columns, although all who were present heard, and probably have repeated what they heard to friends. We are not allowed to.
I saw the editor of the Ouyen Mail when I was travelling on a train which passed through that town on Monday, 25th March last, in company with Mr. Peter McDonald, of Mildura. He stated that he had prepared for the Age a report of the meeting in question, containing 1,000 words, which had been telegraphed to that journal, but that the censors had cut 140 words out of it. As a matter of fact, everything adverse to the management by the Government of the Wheat Pool was eliminated.
A little later Mr. Ritchie received the following instruction from the censor: -
To the Editor, Mail, Ouyen.
Confidential, and not for Publication.
In the report of the meeting of the Northwestern Mallee District Council Victorian Farmers Union, I have to request that you delete the following remarks therefrom: - “Also ask him (Mr. Giles) explain why £45,000 chartering fees paid for ships owned by Commonwealth ships commandeered by Commonwealth. Giles said was because farmers took lying down instead standing up punching. . . . . “ “… Commission paid agents handling wheat London £113,000 will be £200,000 by end of year one representative could have done all but Government appointed three then added another management.” “… Rees said Hughes shifted Australian ships Pacific now carrying cargoes America to Continent.” “… Same wheat bringing 10s. 6d California Hughes putting profit wheat credit ships show paying for them one year this coming out farmers’ pockets cost freight Government and commandeered ships only tenpence bushel why collaring difference….. “
Word “ starving “ before “ Britishers.” “ but was Government who disloyal taking wheat 4s. 9d. selling 10s. 6d. . . . . “ (Signed) E. Norman Debham, Capt.
It will be seen that that instruction refers to an abbreviated telegraphed report. The report sent to the Age was censored, and an instruction was forwarded to the Ouyen Mail that certain paragraphs should be excised.
I submit that this is a matter of the gravest importance. All over Australia there is suspicion as to the management of the Wheat Pool. It has been stated that the Government paid £45,000 in chartering fees to Messrs. Gibbs, Bright, and Company in connexion with German and Austrian ships that have been commandeered.
– If the Government commandeer foreign ships there should not be £45,000 paid in fees to anybody.
It is also stated that £75,000 has been paid in commission in connexion with the sale to ‘the British Government, by the Prime Minister (Mr. Hughes), of 3,000,000 tons of Australian wheat.
With all these Pools being administered by the Government without any public criticism we have arrived at a very grave and dangerous position.
– The honorable member ought to make accurate statements.
– The honorable member for Wannon lives in Melbourne, but I have to catch my train for Sydney in a few minutes. I hope, therefore, that he will allow me to continue without interruption.
Here we have the farmers’ representative on the Wheat Pool, in the person of Mr. Giles, placing certain facts before a meeting of the Victorian Farmers Union, and because he indulged in criticism of the Government management of the Pool, and because his statements might lead to a demand for a public inquiry into the administration of that Pool, the Government used the War Precautions Act to prevent the publication of those facts.
– The honorable member is floundering in a pool that he is not used to.
– My honorable friend would be very glad to think so. Let him defend the action of the Government in this connexion.
There is no question involved of the publication of news which might be of service to the enemy. As a matter of fact, the Government are using the War Precautions Act, not to prevent the circulation of news which might prove of military value to the enemy, but to prevent the public being apprised of facts which would damn the Ministry from one end of the country to the other. It is because of this that they have adopted these cowardly means to conceal from the people what is taking place.
– Who made this Pool?
– Labour did. The Minister for the Navy is very cute in trying to side-track me. Labour was never a party to cloaking up financial transactions.
– Nine-tenths of the honorable member’s criticism nowadays is devoted to things which he supported a previous Government in doing.
– The Minister for the Navy is just as incorrect in his statement as he usually is. Upon any party question it is very difficult for him to be accurate. The question involved is not what was done by a previous Government. When I occupied a seat on the opposite side of this chamber I did not hesitate to criticise the administration of that Government in connexion with the war. That Government was not guilty of what is now complained of.
– Andthe honorable member is criticising it now.
– Of course I am. It is necessary for the protection of the public funds - especially where millions of pounds are changing hands - that the light of criticism should be let in upon the methods which are being adopted in connexion with the Wheat Pool. The facts should go to the public so that this Government should be made to know that they are creating circumstances which, wherever they have been brought about, have resulted in scandals, in bribery, and corruption. This requires to be put on record.
I spoke to Senator Russell a week after the date in question. He is the Minister administering the Pool. He was at the time in company with Mr. Watt, the Federal Treasurer. Both of them ridiculed the whole matter. Senator Russell said he knew nothing about it, although it is he who is administering the Pool.
– He is not administering the Wheat Pool.
– He was the Minister in charge. I have produced the facts, and they show that if it is not Senator Russell, then there is somebody not connected with the administration of the Pool itself ; it shows that the Governmen - probably the Prime Minister and the Minister for Defence - are taking action to stifle public criticism; to keep dark important facts, and to create a most undesirable and unhealthy atmosphere.
I hope now to hear something from the honorable member for Wannon upon the matter, for he appears to be the Government’s special apologist.
– I was not here when the honorable member for Cook (Mr. Catts) read the regulation, but his idea of the management of the Pool is very wide of the mark. The Pool is under the control, first, of the Prime Minister, and of the Minister of Agriculture in each of the States. There is a Board, upon which the farmers are represented, also. The Government have not the control of the Pool to-day. It is a form of joint control, and, as a matter of fact, the Minister for Agriculture in Victoria (Mr. Hagelthorn) seems to have been in the main the man who has known the most about the management of the Pool. I do not propose to go into the operations of the Pool; they are all set out in black and white. There is much that probably requires adjustment, but I maintain that there is no opportunity for fraud or for the great leakages to which the honorable member refers, but about which he actually knows nothing. The figures are on record as to the sales and the stock in hand, and there is issued every week, or fortnight, a statement of the financial position of the Pool. I, personally, take the trouble in my electorate of making extracts from it, and of putting them in such a form as may be understood by the farmers themselves. And I think I can safely say that they are better informed thereby with regard to the Pool than is the honorable member for Cook. The success of the Australian Wool Pool has been, in a great measure, due to the fact that it is under the control and management of men who understand wool, and have grown up with wool, and who know it from A to Z. I have always thought that our Wheat Pool should have had a greater representation of the best experts in wheat production itself. Though there isa wide differentiation between the men who handle wheat and wool, I hope that in the recasting of the control of the Wheat Board more of the growers’ representation will be included. It is a good thing that those who place their affairs and their returns in the hands of the Board should be as fully represented upon it as possible. I myself am not perfectly satisfied with the Pool in all respects. In the main, however, it is a sound proposition, and the country, without it, would have been indeed in a bad state. There are now three distinct Pools, all complete. The first has to do with the 1915-16 crop, in respect to which there is, I think, an amount of about 3½d. a bushel to be paid. It is now practically available, and we have a statement that it will be cleaned up in the course of a few weeks. Then there is the second Pool- the 1916-17 Pool- on which there have been advances aggregating, I think, 3s. Then comes the third Pool, dealing with the crop of 1917-18, upon which one advance of 3s. has been made straight out. Honorable members have sought to point out that the farmers are absolutely at a disadvantage, and can get nothing at all. I emphasize, however, that each piece of scrip has a daily price. The scrip is on the Exchange, and one can either sell or get an advance upon it. It would be well, if the money is in hand to liquidate the first Pool, that it should be done forthwith. With regard to the second Pool, I hope the Wheat Board will be able, seeing that it guaranteed for the 1917-18 crop and the 1918-19 crop 4s. net, to go back to the crop of 1916-17 and say, “ We guarantee that that wheat shall be worth 4s.” It would put the farmer in a much better financial position. While I know nothing definite with regard to the restrictions placed upon the remarks of the farmers’ representative, Mr. Giles, yet I do know that the affairs of the Wheat Pool are available to farmers and to members of this Chamber; and, as I have indicated already, one can periodically secure statements regarding the business of the Pool, and the farmers can be kept well posted.
– In reading the Adelaide papers, I have noted that there was a meeting specially called in that place to hear Mr. McGibbon, the farmers’ representative from Western Australia, and also to hear Mr. Giles. If honorable members care to turn up the Advertiser and the Herald of yesterday’s date, they will find that the strictures of the farmers from those two States are very severe in regard to the conduct of the Pool. Mr. McGibbon stated for Mr. Giles that, in the last six months, the farmers’ representative - elected upon the votes of the farmers of Australia - had attempted to attend three meetings, and that at the last, for which he came to Melbourne tobe present, not a single representative of the Wheat Board was in attendance. He said that for a few minutes, in fact, the Prime Minister (Mr. Hughes) did put in an appearance; so that the Pool, so far as the farmers were concerned, might be regarded as a bit of a farce. Mr. Giles said it was about time the farmers went on strike in regard to the Pool, and that the Government seemed to be largely influenced by the moneyed class, and that there was money behind it.
Mr.Rodgers. - It is a question of five Governments - not of one.
– When serious statements are made like that by the farmers’ representatives, there must be something wrong, and it behoves the honorable member, who himself is not satisfied with the way in which the Board is composed, to endeavour to bring about better conditions. I believe there will not be entire satisfaction until those men who properly understand their own industry have a larger share of the representation on the Board.
I have heard to-day from honorable senators that yesterday afternoon a full statement of Government policy was made in the Senate. I do not find that full statement in the daily papers today.For what reason has there been a suppression of the statement of Senator Millen in the Senate, so that it is held back until the Prime Minister shall havehad an opportunity of makingthe utterance in this Chamber? Is that the reason, or what is it? Is our censorship to be manipulated in this manner? We learn that the policy of the Government was yesterday delivered in the Senate.
– Do you not think it ought to be delivered here?
– It was delivered in the Senate.
– Order! The honorable member is not in order in referring to the debates of the Senate. He must not refer to the Senate’s proceedings.
– I will refer, then, sir, to another place where a statement was made concerning the Government policy, and which covered the ground from A to Z. Honorable members of this House are very anxious to know what the Government are about to do.
– They are indeed anxious. They show it.
– Well, there has been a lot of talk, a lot of promises, but nothing has been done. I want to know why the Government are always making use of the censorship to suppress and manipulate information that ought to go out broadcast all over Australia so soon as it is delivered in any legislative chamber. Why has this been done? It shows that there is something rotten, not in the State of Denmark, but within the Commonwealth. If the censorship is going to be so used, then certain steps will have to be taken which will very soon have the effect of shifting the men who are using it from the Ministerial benches.
– It is time to protest against the silly rhodomontade which is supposed to do duty for argument on the other side. I should like the honorable member to be a little more explicit in his statements. He talks about manipulation and suppression, all because, in this instance, the usual procedure has been followed. He knows - if he knows anything at all, and, if not, then he is absolutely ignorant of things that he ought to know - that a statement of such a kind is never made in the Senate until it has been delivered here.
– It was made in the Senate yesterday.
– Is the honorable member so ignorant that he does not know what has been the practice here for seventeen years past? Really, it is time to protest against these bogies being set up almost every hour of the day. And, in fact, why has that statement not been made here? It is because of the absolute and disgraceful waste of public time on the part of the honorable member and his confreres.
– Order ! I must ask the Minister to withdraw those words.
– Yes, Mr. Speaker; and I think it is very much to be regretted-
– It is much to be regretted that those references were permitted to be made in detail to the transactions of another Chamber.
– Order! I point out that I called the honorable member for Maribyrnong (Mr. Fenton) to order at the time. I ask the right honorable gentleman not to reflect on the Chair.
– The honorable member made a speech full of political poison and insinuations about all kinds of things, and it is time to protest against this kind of argument, this political poison-gas which is constantly being discharged.
– But why muzzle the press ?
– The honorable member does not know whether the press has been muzzled.
– I am told that the statement was made in the Senate.
– Everything is being twisted and torn out of its setting until we meet with that kind of exaggeration which is worse than a direct lie. Everybody knows the game you are up to.
Mr.Higgs. - Clear up things ; then you will not have this gas going about.
– It is impossible to clear up every possible point for people whose only business in life seems to be to keep things muddy. In between their taunts about want of control and want of unity and of stumbling blocks to recruiting and the like we get these political statements constantly being bandied about the chamber. I sincerely hope the country will take note of the fact.
– Get to the country and give the people a show.
– Here, for t wo solid days, the time of this House has been wasted by honorable members on the other side.
Mr.Fenton. - And you wasted four weeks on an adjournment.
– Order ! It is not in order to say that honorable members have wasted the time of the House.
– Time has thus been taken up which has had the effect of blocking a Ministerial statement, as to which complaints are now actually heard that it has been kept back.
– No, the muzzling of the press.
– You make a grievance of this very fact. I do not know that political hypocrisy could go much further than that.
Question resolved in the affirmative.
House adjourned at 4.45 p.m.
Cite as: Australia, House of Representatives, Debates, 5 April 1918, viewed 22 October 2017, <http://historichansard.net/hofreps/1918/19180405_reps_7_84/>.