1st Parliament · 1st Session
The President took the chair at 10.30 a.m., and read prayers.
page 10951
– I desire to ask the Postmaster-General when the regulations under the Post and Telegraph Act will be laid upon the table of the Senate ?
– I have just finished my revision of the regulations, and they will be submitted to the Attorney-General forthwith.
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– It is my intention to ask the Senate to adjourn when we have finished dealing with the Electoral Bill today. I do not think that anything would be gained by going, into the question of adopting new standing orders, as I am very much afraid that the debate would last longer than the remainder of this sitting.
page 10951
In Committee. (Consideration resumed from 13th March.)
Clause 190-
There shall be a Court of Disputed Returns, whichshall be constituted by a Justice of the High Court of Australia or a Judge of the Supreme Court of any State.
Uponwhich Senator Stewart had moved by way of amendment -
That the words “a Justice ofthe High Court of Australia or “ be omitted.
– I do not know whether Senator Stewart intends to persist with an amendment for which he has given no reasons. Ifwe are to have a High Court of Australia there ought to be an opportunity of investing that court with jurisdiction to try disputed returns. I have already referred to the necessity for having the two courts available for that purpose. I do not think that the amendment can have been seriously moved.
– Senator O’Connor could not have been listening last night when I gave two very important reasons for the amendment. My first reason was the increased cost that would be incurred if a case were tried in the High Court, and my second reason was the inconvenience which such a reference might occasion.The clause provides for reference to either the High Court of Australia or to the Supreme Court of any State ; but who is to make the choice - the petitioner or the Government ?If it is to be made by the Government, that is a position in which no Government should be placed. It should have nothing to do with such cases. That opinion was expressed very forcibly here during the discussion on the case of Senator Matheson, when some of the evils of Government interference in these cases were very clearly and distinctly brought under our notice. If the choice is to be made by the petitioner, does not Senator O’Connor see what a weapon it will place in the hands of a rich candidate or a candidate with a rich powerful organization at his back, to cause trouble and expense, probably ruin to his opponent? A candidate of that description would inevitably choose the High Court of Australia, as being the very much more expensive court of the two. A disputed return might very well be tried by a Judge of the District Court. The law ought to be as well-known to a District Court Judge as to any Supreme Court Judge. The chief consideration with honorable senators ought to be to get justice done in these matters as cheaply and quickly as possible. The clause as it stands must conduce to great cost and delay. The High Court will necessarily be much more expensive to litigants than will a Supreme Court, just as a Supreme Court is more expensive’ than a district court, and a district court in its turn is more expensive than a police court. That disputed questions relating to elections will not be of a very intricate character is proved by the clause which provides that the rules of evidence and all other paraphernalia of the courts shall be dispensed with. The Court of Disputed Returns is to be not a court of law but a court of equity, and it is extremely desirable that as little cost as possible should be permitted to be incurred. Again, the High Court will sit in either Melbourne or Sydney, or perhaps in each city in turn. The Judges may go on circuit over the continent, but it can only be at very long intervals, and thus months may elapse before a justice may be able to go to the North of Queensland to try a case. Consider the enormous expense that would be caused by the adoption of that course. Senator O’Connor says it is extremely desirable to give the High Court jurisdiction in these cases, but it appears to me like invoking the aid of a steam hammer to flatten a pin, or using field artillery to shoot a partridge. Senator Dobson has very clearly demonstrated the utter folly of dragging these cases before the Supreme Court. What questions will come before a Court of Disputed Returns? It may have to inquire whether A was entitled to vote ; whether a candidate or his agent had treated an elector ; and trumpery questions which could easily be settled by a police magistrate. Yet it is proposed to call in the aid of the principal legal officials of the Commonwealth to try these questions. The proposal is absolutely ridiculous. ‘ I would strike out the reference to the Supreme Court, and have all the cases tried in the. District Courts, and so insure the greatest economy with despatch.
– Senator Stewart has been setting up a hypothesis of a most unnecessary character, and then proceeding to draw unhappy inferences from his hypothesis. He wishes to know who is to say to what court the question of a disputed return is to be submitted. It is provided most clearly in clause 194 that the House containing the member affected shall refer the question to the court. Surely, in dealing with a petition, the House will determine whether it is to be referred to the High Court of Australia or to the Supreme Court, of a State.
– Under clause 193 a petition against the return of a member has to be left with the Clerk of the House, or to be presented to the House by a member. The House is then absolutely master of the position. Instead of constituting itself a tribunal to try the election, or appointing a committee for that purpose, it refers the petition to a Court of Disputed Returns, and that court is to be constituted by a Justice of the High Court of Australia, or a Judge of the Supreme Court of any State. The House has the right of choosing one court or the other. Senator Stewart has no objection to a petition being referred to a Judge of the Supreme Court, but he objects to its being referred to a Justice of the High Court. Surely if there is a High Court for the Commonwealth, a House ought to have the opportunity, if it thinks fit, of referring to the highest court in the land the question of a disputed return. If it thinks that there are any circumstances which make it necessary to refer a case to a Judge of the Supreme Court, that can be done. Underlying this clause is a more important principle than perhaps Senator Stewart has recognised. It is quite true that generally speaking they will be very simple matters to determine, but very frequently and at any time the courts may be called upon to interpret the Electoral Act, or the Constitution, to administer the laws by which the Commonwealth is guided. Surely the interpretation of those laws ought to be left in the hands of the Commonwealth’s court ? At all events a House of Parliament ought not to be deprived of the right of sending such a case to that court if it thinks that it involves such questions as ought to be dealt with by the highest tribunal in Australia. Senator Stewart speaks as if the Government - or the petitioner - might send a case to any court. That is not the case, because the choice rests with the House of Parliament concerned. If the Government has not a majority to refer a case to a particular court, it will not be referred to that court. The majority of the House will decide what court it is to be referred to. I hope the committee will see that it is necessary to retain this power in the hands of each House, and to leave the clause as it is.
– After the explanation of Senator O’Connor my objection to the clause as it is disappears; but last night, in answer to
Senator demons, he distinctly said that the Government were to choose the court, and it was for that reason I think that Senator Clemons raised the objection which he did, and which I felt inclined to support. I think it will be recorded in Hansard that Senator O’Connor distinctly made that statement.
– What I stated last night was that the Government constituted the court, that is to say, that it might make a proclamation constituting a court of disputed returns; but on looking into the matter more fully, I found that that statement was wrong. I have no doubt at all that the word “ constituted”has the meaning which I now attach to it.
– If that is clearly understood I shall certainly support the clause as it stands. It is essential that the powers of the High Court of Australia, in dealing with these matters, should be preserved.
– Senator Stewart will do well to withdraw his amendment, because he must see what an extraordinary position will be created if we pass by the High Court altogether in the matter of securing interpretations of our own Electoral Act. The honorable senator appears to think that nothing should be left in the hands of Parliament or the Government. But the House in question must be guided by the Government, who will be able to say whether the High Court is busy or not, or whether it is more convenient or less costly to have the case tried in the Supreme Court of the State affected.
– It appears to me that a most important constitutional point will arise if Senator Stewart’s amendment is carried. Every Constitution ought to contain within itself, and to have within the control of the officers appointed under it, the power to carry out the provisions of that Constitution. Outside authorities never ought to appear. I object to the words “a Judge of the Supreme Court of a State “ being left in the clause. Suppose we referred an election petition to a Judge of the Supreme Court of a State. That Judge is not under our jurisdiction. We do not pay him. We cannot dismiss him. Suppose he says, “ I will not take the case,” what are we to do? The Senate ought to be most jealous in keeping within its own power, and in the hands of officers under its control, all matters affecting the interpretation of the Constitution, and the determining of the mode in which its own House is constituted. Senator Stewart has assumed a point which is certainly open to doubt - that proceedings in the High Court of Australia will be more expensive than proceedings in the Supreme Court of a State. I do not accept that assumption. I think the facts will be the other way. We know very well that in some States certain counsel secure a monopoly of the important legal business, and charge exceedingly high fees. That will not occur in connexion ‘with the High Court of the Commonwealth. Further, a Judge of the High Court will probably be able to sit in any State. It is unnecessary that he should always sit in Melbourne or Sydney. The Judges will go on circuit ; and if a petition comes from Western Australia a Judge of the High Court will try it in Western Australia when he goes to that State on circuit. I certainly hope that the amendment will not be carried, and I should like to see the words, “a Judge of the Supreme Court of a State “ eliminated from the clause, so that we. shall have within the four corners of our Electoral Act the power, by ourselves, or by our officers, of arriving at the proper mode in which the Senate shall be constituted, and of determining matters of the highest constitutional importance.
Senatar STEWART (Queensland). -I was much interested in listening to the few remarks made by Senator Baker, but they appear to me to be altogether beside the question. I have no desire to attack the right of the High Court to interpret the Constitution. That power is given to the High Court by the Constitution itself. But surely honorable senators do not imagine that in connexion with cases of disputed elections, great questions will ever arise involving an exposition of the Constitution. I suppose it is of no use for me to proceed with my amendment. There seems to be no disposition in official circles to make law either cheap or speedy.
Amendment, by leave, withdrawn.
Clause agreed to.
Clause 193-
No return shall be disputed except by petition, and no petition shall be noticed nor shall any proceedings be had thereon unless the petition - (I.) Is addressed to the House affected, and presented by a member, or left with the Clerk of the House within 40 days after the return of the writ : (III.) Is, in case of a petition against a return, accompanied by a certificate of the Clerk of the House to which the petition is addressed that the sum of £50 has been lodged with him us security for costs.
– This clause involves a number of questions with which honorable senators are familiar, because it is copied from the Western Australian Act, and was brought before us during the discussion upon a certain election petition. On consideration it appears to me that the clause might be amended with advantage. I intend to move that the following words be added to the third paragraph : -
All petitions left with the Clerk shall be laid on the table of the House affected by the President or Speaker, as the case may be, at the next sitting of such House.
Such a petition might be presented either by a member, or by being left with the Clerk. A petitioner ought not to be denied justice because he cannot induce a member to present his petition. There ought, therefore, to be some provision by which every case shall be heard. The amendment I suggest means that in the case of a petition left with the Clerk, the President will take charge of it and lay it upon the table. If a member presents it, the petition is brought before the House in the ordinary way.
– The amendment seems reasonable in some respects, but a petition might be so vexatious in its character that it might not be considered desirable to put the machineryof the law in motion with regard to it. I doubt whether every petition should necessarily be treated in the manner proposed.
– I suggest that the words “ and presented by a member,” in paragraph 1, should be eliminated. A Member of Parliament should have nothing whatever to do with an election petition, which should be presented to an official of the House affected, who should hand it to the President. If a petition is presented by a member, the first objection is that the case assumes a political nature, and, secondly, it places the member presenting it in an invidious position in his own constituency. I therefore move -
That the words “presented by a member or “ in paragraph 1, be omitted.
– I am quite willing to accept the amendment, which will be a great improvement in the clause. In some respects it follows the law of New South Wales, where the presentation of a petition does not necessarily involve the aid of a member.
– It ought to be clearly understood what is meant by presenting a petition to the House and leaving it with the Clerk. Suppose a dispute takes place with reference to the return of a senator from Western Australia. If the petition could be delivered to a member of the Senate in Western Australia, to be delivered by him to the Clerk of the Senate, it would be a saving of expense. Does presentation to the Clerk mean that the petitioner can simply put his petition in an envelope and address it to the Clerk ? It might be more convenient and less expensive to present a petition through a member.
Amendment agreed to.
– Under paragraph 3 the petition must be accompanied by a deposit of £50. If a petition were lodged against the return of a Western Australian senator it would cost him at least £200 to fight the case. A dummy might be put up with the deposit of £50 and the sitting member would be unable to recover costs against him. I think the amount should be doubled. I move -
That the word “fifty” in paragraph 3 be omitted, with a view to insert in lieu thereof the words “ one hundred.”
– It would be going too far to ask for a deposit of so large a sum as £100. I think £50 is quite enough.
Amendment negatived.
Amendment (by Senator O’Connor) agreed to -
That the following words be added to paragraph 3, “All petitions left with the Clerk shall be laid on the table of the House affected by the President or Speaker, as the case may be, at the next sitting of such House.”
Clause, as amended, agreed to.
Clause 194-
All petitions shall, within ten days after they have been received, be referred to the court if the Parliament is then sitting, and, if not, then within ten days after the next meeting of the Parliament.
– This clause involves the question whether Parliament is to have the control over petitions, or whether they are to go automatically to the court. As the clause stands, it means that a motion must be made in Parliament. Whatever the merits of the petition may be, unless there is a majority in Parliament to carry the reference to the court nothing further can be done. The great object of substituting a court to try these petitions is to get rid of the party element ; but if we introduce between the court and the petition a motion in Parliament, which almost necesssarily will involve party considerations, we are likely to defeat the purpose of the measure. It would be very much better if the Speaker or President were to send on the petition as a matter of course to be tried. If the.petition did not comply with the law, or if the allegations made in it were valueless, that would soon be found out. If, on the other hand, it was worthy of consideration, the court would proceed to consider it. If we are to entirely remove the control of these objections from the element of party, we must provide that once a petition is before the legislature it shall, as a matter of course, go on for trial to the proper court. It must be left to the President or Speaker to decide to which court a petition shall be sent. I move -
That the words “ by the President or Speaker, as the case may be “ be inserted after the word “ referred,” line 2.
– I think that the Vice-President of the Executive Council has rather strained the interpretation of the clause, because it does not seem that Parliament has any option.
– The word “shall,” in the first line, refers to the time.
– That is a lawyer’s explanation ; to a layman the word seems to govern the whole clause. If Senator O’Connor is right the protection which we believed we should derive from this clause when we were discussing clause 190 disappears, and Senator Baker’s remarks upon it become extremely apposite. We are proposing now to deprive Parliament of the right to determine the court to which these petitions shall be referred. In a matter of this kind we should, as Senator Baker has suggested, safeguard our rights most carefully. No matter who the President or Speaker might be, I should be disinclined to leave a matter of this importance solely to them. The question of whether a member should be allowed to sit in Parliament after a petition against his return has been presented should also be definitely settled. In my own case I took a great deal of legal advice on the subject, and, although the consensus of opinion was that I should not take part in the proceedings of the Senate while the petition against my return was before the House, there were a number of people who thought that I was entitled to sit before the petition had been disposed of.
– There is nothing to prevent a senator from sitting in such circumstances.
– The question of what authority is to decide the Court- to which a petition shall go is of very little importance, but Senator Baker has presented a new point for consideration in suggesting that we should insert a clause providing that a petition shall go only to the High Court when a question of the interpretation of the Constitution alone is involved. If a question only of bribery, or some other illegal practice, were involved, then the petition ought to be heard by either court. Neither the President nor Mr. Speaker would desire to have thrusts upon them the responsibility of choosing the court, because they may not have the requisite knowledge to enable them to consider the question of convenience or expense. The amendment is a little defective, inasmuch as it does not go far enough.
– The amendment we have just carried will necessitate a verbal amendment, which should really come before this. I therefore ask leave to temporarily withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator O’Connor) proposed -
That the word “received,” line 2, be omitted, with a view to insert in lieu thereof the words “ laid on the table of the House.”
– What is the object of proposing that petitions shall be laid on the table of the House, when the House is to have no say in the matter ? The ordinary triennial elections for the Senate will take place, more or less, towards the close of a year, and the Senate may not sit for four, and probably not for six months afterwards. Meantime, what would become of a. petition if it had to be laid on the table ? Nothing could be done. If the matter is to be dealt with automatically by the presiding officers of Parliament it is not necessary for it to come before the House. I am opposed to the amendment. The amendment which has just been withdrawn temporarily would introduce a method of dealing with petitions totally dfferent from that provided in this clause, on which I founded my argument in opposition to Senator Stewart’s proposal, and was backed up by Senator O’Connor in doing so. I should not have opposed that amendment if I had had the least idea that Parliament would have no voice in the matter.
– This amendment is merely consequential. It leaves open the question whether Parliament or the Presisident or Speaker shall deal with the matter.
– One phase of the question which must be considered is that if the President retired at the end of a term the contingency pointed out by Senator Neild would arise. If the President were defeated, then for six months perhaps there would be no such officer to refer a petition to the court.
– Our objection to the amendment is that a petition would have to be laid on the table of the House before it could be sent to the court. The clause is quite out of harmony with the principles contained in other parts of the Bill taking away from Parliament the power to deal with these petitions.Since we have gone so far and acted so wisely why should we compel a man who thinks he has a grievance to wait until Parliament assembles, perhaps six months after a disputed election, to have his petition dealt with? I think the clause ought to read -
All petitions shall within ten days after they have been received by the Clerk be referred to the court.
– We appear to have got ourselves into a hopeless tangle simply because the committee had not sufficient resolution to say definitely to what court petitions should be referred. Why should not a petitioner have the power to go at once to the court without any reference to Parliament ? Some honorable senators appear to be greatly troubled about putting the court above Parliament. I am not. It will not be in cases of this kind that the High Court will arrogate to itself powers above Parliament. It would simplify matters very much, and do away with the danger of delay, if we were to provide that . 1 disputed election should be tried before the Supreme Court of the State in which the dispute occurred.
– I would suggest that the clause be amended to read as follows : -
All petitions shall within ten days after they have been received by the President, Speaker, or Clerk oE the House be referred to the court of disputed returns.
We have in clause 190 provided for an alternative court, and the reason I desire to retain the reference to the President, is that a petition may be lodged involving a difficult constitutional point, and in such a case we should have the advantage of a high constitutional authority to decide to which court it should be referred. The knowledge of constitutional law .possessed by our President is admitted not only in the Senate, but throughout the Commonwealth, and if in the course of the next five years we should have a petition in connexion with a disputed election, we should have the advantage of the President’s knowledge of constitutional law to guide the decision as to the court to which the petition should be referred. Under the proposal I make, in ordinary matters the Clerk could refer a petition to the court. I’ desire to leave out all reference to Parliament.
– Honorable senators are divided in opinion as to whether we should leave out the reference to Parliament. If the clause is left as it is, with the formal amendment I propose, it will be referred by Parliament. Some honorable senators wish that that should be done, and others wish that the petition should be referred automatically to the court. If the words “ referred by the President “ are carried in the clause, that must mean logically that the President is not to wait until Parliament is sitting, but must go on with the business, and have the petition presented to the court. It seems to me that it will be necessary to give some attention to the drafting of the clause if it is to be amended in that way. I propose that this formal amendment should be carried now, because it is necessary, whichever view is taken. When my subsequent amendment is moved, if the committee are of opinion that the President should send on the petition, I will have the clause redrafted in such a way as to make it unnecessary to have the petition laid upon the table. If, on the other hand, the committee are of opinion that the President should not send the petition on automatically, but that the Senate should deal with it, the clause will remain as it is.
Senator Lt.-Col. NEILD (New South Wales). - I take it that the majority, if not all the Senate, desire to remove these petitions from anything like party strife. If these duties are left to the President and the Speaker there will be the risk of some feeling that- there has been party action, and I suggest to the Vice-President of the Executive Council that the whole difficulty may be obviated by providing that the petition shall be presented to the chief electoral officer for the State in which the disputed election has taken place. If he can be trusted to conduct elections he can be trusted to act as a medium for the presentation of a petition to the necessary court of disputed returns. There may be some novelty in the proposition, but it will be seen that I am making a suggestion which will remove the whole matter from any political or parliamentary influence. This may be considered an important matter to place in this officer’s hands, but he will have no more to do with the petition than to forward it to the court.
– Some honorable senators seem to think that there are two courts to which these petitions may be referred, but I submit that there is only one court - the court of disputed returns - to which they can be referred. By clause 190 we provide that a court of disputed returns shall be constituted by a Justice of the High Court of Australia or a Judge of the Supreme Court of any State. These are the persons qualified to be members of a court of disputed returns, but they are not the court of disputed returns - they must first of all be proclaimed by the Governor-General and gazetted. The choice is left between the Federal Bench and the State Supreme Court Benches, whichever maj’ be convenient, but when the decision is made there is but one court of disputed returns. I submit to Senator O’Connor that he should provide in the Bill a method for constituting the court. The honorable and learned senator no doubt assumes that the Governor-General in Council will have the inherent power to proclaim and gazette the personality of the court. All that Parliament is doing in the matter is to provide that the court shall be constituted bY a Judge of the Federal High Court or a Judge of the Supreme Court of any State, and when it is constituted the Clerk will have no option but to send any petition he receives to the court of disputed returns, whoever constitutes it. In the case of Western Australia it will probably be more convenient that it should be constituted of one of the J udges of the Supreme Court of the State, but in the case ofVictoria a Judge of the Federal High Court may, perhaps, more conveniently constitute the court. The court of disputed returns must be established, and when it is gazetted it will remain until the gazettal is cancelled, and a new court has been gazetted, and therefore the Clerk when he receives the petition will know at once to whom it is to be sent.
– Would it not be better first to settle the principle whether Parliament shall deal with the petition or whether it shall go on automatically to the court ?
– That is so, but I have been endeavouring to meet a difficulty, which appears to be in the minds of some honorable senators, that the Clerk will have a duty cast upon him of deciding to which court a petition shall be sent. I have shown that the Clerk will have no such difficulty, because when the court of disputed returns is constituted he will have no option but to send it to that court.
– This discussion shows how difficult itis to clear ourselves of precedent. We have all been in the habit, for a great many years, of considering that Parliament should have a voice in connexion with these disputed returns. I am entirely in accord with honorable senators who think that Parliament should have nothing whatever to do with them. We have provided that a petition shall be presented to one or other of the Houses, but why should the petition be presented to Parliament? Why should we not follow the English precedent, and allow the petitioner to present his petition at once to the court of disputed returns? The whole of the difficulty we are now discussing would then disappear. The English practice to which I refer was brought into operation in 1882, and it has worked satisfactorily ever since. I do not see why it should not work here equally well.
– The whole difficulty is with regard to the court which is to receive the petition and finally adjudicate upon it. In this matter I think Senator Stewart is perfectly right, and Senator Baker is right also, in another sense. If we settle the court which is to be the court of disputed returns, we shall get oyer the difficulty. It will not matter then who forwards the petition, and I have no objection to the petitioner himself forwarding it. We should lay down the principle that the court to decide such petitions should be the High Court of Australia, or the Supreme Court of a State, and the balance of argument, in my opinion, is in favour of the contention that it should be the High Court of Australia, because it has been pointed out that there will be cases in which constitutional law will have to be interpreted. In certain circumstances the Supreme Court of a State would fail, and it is not a tribunal which should interpret the Constitution. We ought to decide upon the constitution of the court, because if there is an alternative court provided for, and it is left to the President, Speaker, or Clerk to forward a petition, he may make a mistake with regard to the merits of a case, and send it to a court which may notbe competent to deal with it.
– Senator Barrett has fallen into the error that it is decided to give an option to the parties as to which tribunal they are to resort. Senator Ewing dealt with that matter, but he might have gone a little further. He has pointed out that the provision under clause 190, establishing a court of disputed returns, does not give the parties interested an option as to the tribunal to which they may resort.We have a power under the Constitution to invest any State court or judge’ of any State court with federal jurisdiction in certain matters. The moment we do that the Judge of a State Supreme Court acting judicially within the province of the matters delegated to him, constitutes a federal court. Senator Ewing’s remarks as to the competence of the Governor-General in Council to decide which shall be the court of disputed returns involves this position - that the Government would be able, by gazetting, to decide, for example, that the court of disputed returns in the State of South Australia should be the Chief Justice ex officio of that State, or Mr. J ustice So-and-so of that State, and in the same way with Western Australia, Queensland, and the other States. The court of disputed returns would in that way be absolutely fixed, and the party disputing the election would have no option. There is a great deal in what Senator Sargood has said as to the absurdity of slavishly adhering to precedent. Of late years it has been the practice with other Parliaments to leave the determination of disputes connected with elections to outside tribunals, so that they may be settled in an atmosphere absolutely removed from party strife. Many Parliaments, however, have thought it necessary to provide for a formal recognition - which is of no practical value - of a right, the exercise of which they have always previously insisted upon. Senator Sargood referred to what has taken place in the old country, and I desire to draw the attention of the Vice-President of the Executive Council to the fact that for many years past disputed elections in Tasmania have been determined upon very much the same lines.A petitioner does not approach Parliament at all. He presents a petition to the clerk of the Supreme Court of Tasmania, and a copy of it to the electoral officer for the district in which the election took place, and the proceedings ofthe court go on without reference to Parliament. Senator Dobson spoke about a County Court Judge being able to determine these matters ; but in Tasmania they are determined by the Full Court sitting without a jury, and the finding of thecourt is forwarded, I think, by certificate to the President of the Council, or to the Speaker of the Assembly, as the case may be.
– I venture to think that the Full Court is not necessary.
– I do not think that three Judges are necessary, but I am of opinion that we should not encumber the proceedings, and delay, or perhaps defeat justice because of the breach of some technical obligation, by compelling the petitioner to refer his case to Parliament. He should be able to lodge his petition with the clerk of the court of disputed returns, and the case should be determined as an action in which neither House of Parliament has any interest until it is completed. The matter should be dealt with by a court easily accessible to the parties, and there should be no cumbrous and perhaps dangerously delaying forms to be followed to uphold in some shadowy way the dignity and privileges of Parliament.
– The amendment now before the chair is merely formal, and, I take it, will be carried as a matter of course. I then propose to move the insertion of the words “ by the president “ after the word “referred,” and if the committee carry that amendment I shall regard it as an intimation that honorable members have decided that Parliament is not to interfere in these matters, and shall have the clause redrafted to meet their views. If, on the other hand, the committee negative the amendment, I shall take it that honorable senators desire , to adhere to the procedure provided for in the Bill.
Senator DOBSON (Tasmania).- I believe that a majority of honorable senators are of opinion that election petitions should go direct to the court of disputed returns, but I suggest that clause 190 should be recommitted in order to insert in it the words - “ There shall be a court of disputed returns in each State.” That, of course, would cut out the High Court, but wo might provide that if the objection raised in the petition were based upon constitutional grounds, and not merely on allegations of bribery or irregular proceedings, the High Court of Australia should deal with it.
– I shall consider the whole matter if the amendment to which I refer is agreed to.
– I believe that honorable senators are of opinion that election petitions should be presented for settlement to some tribunal other than the Legislature. The acrimonious debates which took place in this Chamber some months back, in regard to the petition against Senator Matheson’s return, made it painfully evident that this is not a suitable body for the settlement of such cases. While I believe that every honorable senatorentered upon the discussion of that case in an impartial state of mind, I feel that we all were very much biased before it was finished with. I would suggest, however, that the petition be placed in the hands of the Clerk of the Senate instead of in the hands of the President, and that he alone should be responsible for sending it on to the tribunal which is to deal with it. Unless we make some provision of that sort, we may have the blunder which occurred in regard to Senator Matheson’s petition repeated.
– I think that the convenience of the petitioners, and those who are petitioned against, should be considered in this matter, and that a case arising in Western Australia, for instance, should bo dealt with in the courts of that State. If a petitioner were compelled to bring his case before the High Court the expenses might be so great that a poor man could not hope to get justice.
Amendment agreed to.
Amendment (by Senator O’Connor) agreed to -
That the words “ by the President or Speaker, as the case may be,” be inserted after the word “referred.”
Senator MATHESON (Western Australia). - Does the Vice-President of the Executive Council propose to accept my suggestion to insert a provision allowing or forbidding a member, against whom a petition has been lodged, to sit and vote ?
– I do not think it is necessary. It would be an absurd thing to prevent a man from sitting merely because a petition had been lodged against his return.
– I took the very best legal opinion in my own case, and I was told that I should be extremely illadvised to sit while the petition against me remained undetermined.
– I have looked carefully into the matter, and I think there is no doubt as to a member’s right to sit. Whether a member will sit or not must depend entirely upon himself.
Clause, as amended, agreed to.
Clause 198 (Decisions to be final).
– Is there to be any appeal to a higher court, where some obvious error has been made by the presiding Judge, either in admitting or refusing to admit evidence?
– No ; I think it better to make the decision of the court conclusive. If we allow an appeal it means more expense.
Clause agreed to.
Clause 200 (Deposit applicable for costs).
– Will the costs be subject to taxation?
– Of course.
Clause agreed to.
Clause; 201 (Other costs).
Senator Sir WILLIAM. ZEAL (Victoria). - I think there ought to be no costs, since they wouldonly encourage litigation. If a man has a good Case and wins it he gets everything he requires. The clause will enable rich people to fee counsel and prolong hearings to an undesirable extent without any benefit to the public. At all events, costs should be on the most reasonable scale, say that of the county court. A labouring man who, in prosecuting a claim, had to call perhaps a dozen witnesses, and was unsuccessful, might be absolutely ruined.
– There must be some clause of this kind, otherwise a person to whom money was no object would employ counsel and incur heavy costs, while bis opponent, a poor man, would have to go without legal assistance, seeing that no matter how much the latter spent he could not recover in the event of his being successful.
Clause agreed to.
– Some amendments are necessary in the schedules, and I do not propose to deal with those to-day.
Progress reported.
SPECIAL ADJOURNMENT.
– I move-
That the House, at its rising, adjourn until
Wednesday next.
I am glad to say that with the assistance of all parties and sections in the House, such satisfactory progress has been made with the Electoral Bill that it is not necessary to take Tuesday next as a sitting day. The only clauses remaining are those dealing with proportional representation and a few others such as have recently been before us and which require reconsideration. I have every hope that we shall get through this Bill well within next week.
Question resolved in the affirmative.
Senate adjourned at 12.15 p.m.
Cite as: Australia, Senate, Debates, 14 March 1902, viewed 22 October 2017, <http://historichansard.net/senate/1902/19020314_senate_1_8/>.