1st Parliament · 1st Session
The President took the chair at 2.30 pirn.,and read prayers.
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Report. of.Select Committee presented.
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Senator BRAKE laid upon the table the following-paper : -
Drawback Regulations under Excise Act.
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-With the view of bringing under notice a matter of’ urgent public importance, I move -
That the Senate at its rising adjourn until this day week.
The newspapers of to-day report that in Sydney yesterday ten firms were hauled up to the. police court and fined for alleged falsification of customs entries. In each instance the magistrate imposed the minimum fine of £5. The frequency of these cases ; the factthat practically all the leading firms throughout Australia are one after another being brought into the net and charged in this way, certainly warrants us in drawing the attention of the Ministry to what is going on. I notice that the list includes such well-known firms in Australia as Paterson, Laing, and Bruce Ltd., Farmer and Co. Ltd., W. and A. McArthur Ltd., and others. These very large firms cannot possibly, in the very nature of things, arrange to pass fraudulent entries, because they have to trust to junior clerks to pass them in separate departments. When the Customs Bill wasunder discussion here attention was drawn to the possibility of the authorities acting in this arbitrary way. Quoting from page 4267 of Hansard-
– The honorable senator must not quote from the report of a debate of the present session.
– It relates to the same matter.
– The standing order is precise
SenatorPULSFORD. - The point has been raised before, and: I have been allowed to make sucha quotation.
– The debates on the various stages of a Bill are considered: to be one debate: If feehonorable senator will refer to the standing: order, he will see that it is out of. order even toalludeto a former debate ofthe session. It says -
No member shall allude to any debate of the same session upon a question or Bill not being then under discussion.
This cannot be said to be a question or Bill under, discussion.
– The question is under discussion, and the sooner the standing orders, if they are such as they seem to be, are buried, the better it will be for us ull.
– They are framed by the Senate, not by rae.
– If Senator Playford will take the trouble to refer to the Mansard report he will find that when many honorable senators were pleading hard for the clauses to be altered, so that it could not be in the power of the Customs authorities to drag firms before police magistrates for a mere clerical error, he interjected that such a thing could not occur as the collectors of customs would settle such matters out of court. In view of the fact that these technical offences - for they are mere clerical errors - are not being settled out of court, and that merchants in each State are having informations laid against them by detectives, and being prosecuted in a way never previously known in the history of Australia, I think the time has arrived when it is our bounden duty to ask the Government to interfere. I cannot conceive that Ministers are quite callous to what is going on. They must see that something is wrong, and the very least we can ask them to do is to instruct the Customs authorities that where there is no suspicion of wilful fraud, such prosecutions “shall not in future be instituted. I trust that some assurance on this point will be given by Senator O’Connor.
. -I have stated over and over again, in response to questions by the honorable senator, what the attitude of the Government is.
– Yes, but it is time that attitude was altered.
– I have nothing to say in addition to that. The honorable senator was one of those who strenuously objected to any offences being created under the Customs Bill except where fraud was involved. It was- pointed out to him that, in the carrying, out of the ad valorem- system, it was .necessary to trust to the- importers making, correct statements as to values, particulars, quantities, and other matters of that kind which were necessary for the information of the Customs authorities. Not on.lv did the two Houses deliberately pass a law which created the offence of making an incorrect statement, but they went further, and pointed out that there was a distinction in punishment between a case where there was an incorrect statement and a case where there was a fraudulent statement. The law having been passed for the express purpose of putting upon the merchant or the importer the duty of being exceedingly careful in everything he stated to the Customs authorities, it must be administered. The Government cannot pick and choose ; they cannot abstain from insisting upon the law being properly observed in the case of a well-known firm any more than in the case of a firm that is not well known. It must be administered impartially, and I think that Senator Pulsford hardly realizes what he is asking when he requests that, notwithstanding, the will of Parliament, the Minister for Trade and’ Customs shall refrain from carrying out the law in cases where it has been flagrantly broken. No one supposes for a moment that the charge against the different firms which have been mentioned involves fraud or discreditable or dishonorable conduct in any way.
– It will be brought up years afterwards against the firms.
– Nobody can help that. If it is brought up in that way. it will be brought up entirely without any justification. All we have to do now is to see that the law is carried out, and, as I said before, there is no one whose opinion is- worth having, or who knows anything about the subject, who will think of imputing any fraud or dishonorable or disgraceful conduct to any of these persons who are simply charged with having made a mistake.
– They are not charged with having made mistakes, but with having, passed false entries.
– The honorable senator stated yesterday that in one of these cases the prosecution was opened by a statement on the part of the Crown that there- was no charge offraud.
– That was brought ! out by a. remark, made by the magistrate, j Senator O’CONNOR. - What does it ; matter how it was brought out? It need not have been stated: ! Senator Pulsford. - The indignation of the magistrate brought it out.
– The mere fact of the form Of the charge is enough to indicate to anybody what the substance of it is. It is not a charge of fraud, but a charge of either making an untrue statement or falsification. The honorable senator has no doubt thought it his duty to- bring this matter before the Senate.
– There will be no peace until it is settled.
– I cannot help that. So long as the law is broken measures must be taken for bringing the offenders before the courts, and no distinction of persons can be made. That is all I have to sa)T about it.
– I had no intention of speaking on this question ; but after the speech of Senator O’Connor, I consider that I should be wanting in my duty as a representative of New South Wales if I did not take some notice of it. We are all aware that strictly and technically the firms who have been prosecuted have been guilty of an offence, but it is an artificially-created offence over which they have no control. It has been pointed out that the Customs authorities did not impute fraud or disgracefulor dishonorable conduct to these firms. But they charged them with falsification, and hounded them to the police court in order to get them fined for doing, so far as they themselves were concerned, no wilful wrong. A Customs clerk makes a mistake either in an addition or in an entry - honestly makes the mistake - and admits it when it is pointed out to him. In fact there have been cases in which the principal of a firm has found out such a mistake, and the Customs officers have not noticed it. The principal has informed the authorities, and the notification has been followed by a prosecution. That is an indignity which ought not to be placed upon people. When the Customs Bill was under discussion here it was pointed out that these things might happen, and the reply was that it was necessary to place this power- in the hands of the Minister, and trust him to use it with fairness and discretion. If the Minister for Trade and Customs had used the power committed to him with fairness and discretion no one would have said a word against the administration of the department. But we find that not only in both Houses of Parliament, but also in nearly every newspaper in every portion of the States where -the commercial classes reside, complaints are made day after day with regard to the way in which the Customs department is being administered. Is this because we are living under a protectionist Tariff? If so, why were not complaints made in Victoria when there was a protectionist Tariff in existence here, and the same powers were intrusted to the Minister for Trade and Customs? But then the department was administered with prudence and consideration ; . and if that had been the case under the Commonwealth Act, as administered by the present head of the department, there would have been none of these loud outcries and complaints. The reason why this power was placed in the hands of the Minister was that without it, frauds would be committed. But Parliament relied upon a wide discretion in its administration. There is no desire that there should be any favoritism. There should be no distinctions made between people. The wealthy importer should be treated in exactly the same manner as the poor importer ; but where a mistake has been honestly made, and it is known to the Customs authorities that it has not been made out of a desire to defraud the Customs, the Minister should say, in the exercise of his discretion - “ I will not prosecute in this case.” The Minister is not open to charges of improper conduct when he behaves like that. He is not disgraced in the eyes of the community when he says- - “ This is only technically a breach of the law, and I will not prosecute.” In a case where an error has been made through pure inadvertence, the importer should not be brought before a police court, where, if a conviction is obtained, it will be entered upon the records of the court that, for making a false entry, he has been fined £5. In years to come this charge may be brought up against the importer. Possibly he may find himself compelled to give evidence in a case, and the prosecuting attorney in examining him may ask the question - “ Are you soandso who was prosecuted for sending in a false return to the Customs department ? “ How is the man to get out of a charge of that kind? He may say “Yes,” and attempt to make an explanation; but what is the worth of that when people have forgotten the circumstances? I say that it is cruel, unjust, and unfair to administer the Customs department in this manner. No Minister should take a pride in administering his department in such a way. I hope that the Minister for Trade and Customs will in the future exercise a wiser discretion in carrying out the law. “We know that the law is not intended to be different^ administered in regard to one man than to another, but when this Act was framed it was expected that the authorities would exercise their power with discretion and consideration, and with a full knowledge of the whole of the circumstances of each case. If it were shown that no wilful offence had been committed, it was never intended that prosecution should take place. It is a great mistake to institute prosecutions for artificial offences, and to have fines inflicted in public when there is no allegation of fraud.
– The difficulties that importers have been placed in through the administration of the Tariff which Parliament has just passed have been largely due to the decisions of the Minister for Trade and Customs being in many » instances contrary to the ordinary reading of the Act itself. That has caused a great deal of confusion. Importers say that their agents have been anxious to know under what heading certain classes of goods should be classified, but they have been unable to obtain this information from the Customs department. It is clearly stated in the Act that, for instance, corduroys, drills, galateas, shirtings, and m forth, shall be taxed at 5 per cent. An)’ one reading that item in the Customs Tariff Act would make their entry as to such goods as corduroys under the 5 per cent. duty. But, on so doing, the importer is immediately charged with making a false entry, because it is contended by the department that the goods should be classed under the 15 per cent. list. That confusion arises entirely from a ruling given by the Minister for Trade and Customs that, notwithstanding the clear statement in the Act, these goods should be taxed at 15 per cent., as trouserings.
– The Minister has never prosecuted any one in a case of that sort, surely ?
– He has ; there is a case at Port Adelaide now which is under consideration for prosecution.
– A case of a similar kind is under consideration in “Victoria.
45 0
– The information sent to me states that this difficulty has arisen.
– If a man put that down on his paper, I do not suppose there would be a.ny prosecution.
– I can assure the honorable senator that there is a case now awaiting the decision of the department as to whether it should be brought into court or not. In order that my honorable friend, Senator Playford, may be able to appreciate the point, I will read a copy of a letter which has appeared in the Advertiser and the Register in Adelaide. It is as follows : -
Allow me to draw the attention of the public to further attempts to set aside the Tariff, and worry the importer by extraordinary and contradictory “ decisions “ : -
Tape free on Tariff.- Red tape, 20 per cent., as cordage.
Binding free on Tariff. - Velveteen binding, 15 per cent.
Webbing free on Tariff. - Webbing for bookbinding, 5 per cent.
Blue printing paper free on Tariff. - As it may be used for other purposes than for printing, 15 per cent.
Lamps and lampware, 15 percent/on Tariff. - Lamps come into this market invoiced as complete articles at per dozen - say, with chimney, globe, and silk shade. It is decided that duty must be paid on the body of the lamp at 15 per cent., globe and. chimney at 20 per cent., shades at 25- per cent. To enable this to be done these goods must all be “sighted,” and the value of the separate parts arrived at by a more or less rule-of-thumb method, putting the importer to a maximum of expense and probable breakage from excessive handling. The department professes to set great store on the correctness of declaration as to values, which reads - “And I further declare that the said goods are properly described in this entry, and the particular herein given are true in every respect. “ In a case of this kind, who can say that the values are correct? As a matter of fact, the Minister, by making above decisions, compels the importer to make false declarations.
It is very wrong of the Customs department to be continually annoying people and detaining their goods at the bonded stores. In another case, a friend of mine imported certain articles connected with telephones, and, on account of a purely technical matter, these goods were detained for over two months, causing very great loss to the importer. Seeing that goods are constantly detained to await the decision of the Minister for Trade and Customs, I think that the right honorable gentleman ought not to put a stigma upon importers on account of errors when his own decisions are sometimes confusing - so confusing, indeed, that it has sometimes been found utterly impossible to work under them, and the department has had to alter them. I admit that the Minister has had a great deal to do. He has been engaged in Parliament every day -when the House of .Representatives has been sitting, and has had numbers of other things to attend to on other days. The consequence is that the arrears of work in his office are very great. It is, indeed, impossible for one man to do the whole of the work which the Minister has set himself to do by imposing upon himself the task of attending to all sorts of details instead of allowing his officers to decide certain things for him. I earnestly hope that since Senator Pulsford has called attention to this matter, the Minister for Trade and Customs will endeavour at the earliest possible moment to modify some of his restrictive decisions, and not prosecute merchants to the extent that he has done in the past.
Senator MACFARLANE (Tasmania).Many of the Customs prosecutions which have taken place have been really in respect of very trivial errors. It seems to me that the popularity of the Government and the peace of the community would be assured rauch more certainly b)’ a more reasonable administration of the Customs department. The Minister of Customs is responsible for a great deal of the friction that has arisen.’ Pie is credited with saying - in fact, I myself heard him say - that he must have perfect accuracy. Now, it is impossible for any one to secure the unattainable. We cannot have perfect accuracy. We are all fallible. If reasonable care were exercised, if none but serious offences were brought to book in the courts, and mere trivial errors were dealt with in some other manner, the Act would work more smoothly in the interests of the whole community.
– It appears to me that the only way out of the difficulty that has arisen, which will please the importers - and it is a way which, I think, the Minister might very fairly adopt - has hardly been touched upon yet. I tried to do something with regard to directing the attention of my honorable and learned friend, the “Vice-President of the Executive Council, to the matter when I asked him certain questions a few days ago. But I think that the scope of my questions was somewhat misunderstood. It will be remembered that under the 265th section of the Customs Act any disputes which occur under the provisions of the measure may, if the importer consents in writing, be determined by the Minister. It is because the Minister for Trade and Customs has departed from the universal practice, and has refused to settle any of these disputes with, regard to false or incorrect entries, that the trouble has arisen. I regret that the Minister has not exercised the jurisdiction that Parliament conferred upon him.
– But the disputes referred to in the section are disputes as to duties.
– -What I desire to point out is that the Vice-President of the Executive Council might bring this matter before the Cabinet with the object of trying to obtain some reasonable settlement in order to protect both the rich and well-known importer and the poor importer from injustice, ,and to save the poor and unknown man, as well fis the large and well-known merchant, from being prose1cuted for having made what are called false entries. I wish we had the words in the section “false and incorrect entries,” so that we might draw a distinction between the two ; because an incorrect entry is a totally different thing from a false entry. I regret that the Minister has departed from the practice which every other Minister for Trade and Customs has pursued, in refusing to undertake the jurisdiction cast upon him by section 265. In every other case where he honestly believes, and his officers believe, that there has been no intention to defraud the revenue, he should adjudicate, and, if necessary, inflict a fine. The Act was intended to be administered in that mariner in regard to cases where an importer’s clerk had made a clerical error, for which his principal was legally responsible. It is not unreasonable that the Act should be so administered. But it is because Mr. Kingston has refused to follow this, universal practice that the importers to-day are up in arms ; and I do not wonder at it. I have been informed that the Minister has absolutely declined to try any case, no matter how unimportant it is, and that his view is - and he is entitled to his view, although I think it is a wrong one - that if a mistake has been made, even though it may be a most palpable and obvious error, it is his duty not to decide the matter himself and inflict a fine, but to send the case to court and charge the importer with making a false entry. I ask the Vice-President of the Executive Council - Is there any good reason why the Minister should depart from the usual practice, or why he should not carry out the intention of section 265 and the following sections which enable the Minister to sit in open office, to summon witnesses, and to go into every case that arises? I would not go so far as to saythat ifa number of witnesses have to be summoned, and the Minister has to determine whether a fraud has been committed, he should decide the case himself. If he thinks there has been an attempt to defraud the revenue, let the case go to court. But if the Minister and his officers believe that there has been no attempt to defraud the revenue, but that a mere clerical error has been committed, I think that he is wrong in bringing an importer before the court. I am not suggesting that any distinction should be made between one importer and another, but there should be ft marked distinction made between the importer who is believed to have made a false entry with a view of escaping from the payment of duty and the importer who knows nothing about the error that has been made by his clerk, for whose error he is legally responsible. I hope something will be done in the direction I have suggested. I honestly believe that the Minister is not doing his duty, and is not carrying out the intention of theLegislature as expressed in section 265 of the Act, in refusing to take upon himself the jurisdiction in cases of this kind. He is charged with this duty, and I believe that in every case where an importer says, in writing, that he agrees to submit his case to the Minister, the Minister ought to hear the case, unless he believes that it is one of absolute fraud. If that be so, or even if he believes there is fraud, the case should be tried by the court. I should like to ask one other question before I sit down. I understand that if a clerk orimporter goes to an officer at the Custom-house and says - “Here is my invoice ; under what heading am I to pass my entry?” - the Minister and the officers decline to give any information whatever. I should like to know whether that is a fact. If so, I believe that the Minister and his officers are disregarding their duty. If a man goes to the department - and we all know that it takes a skilled expert to properly interpret many of the items in the Tariff - and says - “ How am I to pass my entry so as to pay the duty which the law requires me to pay ? “ and the Minister and his officers say - “ No, you can make your entry in any way you like, but if you make a false entry you will be prosecuted:” that is a most unreasonable attitude to adopt. I can hardly believe that the officers of the Customs refuse to give any information whatever in cases of that kind.
– I cannot believe it either.
– At any rate I have seen it stated somewhere, and if the VicePresident of the Executive Council can assure the Senate that it is not so, I shall be very glad to have his assurance.
– I feel very much inclined to indorse the views which have been put forward by my honorable and learned friend, Senator Dobson, in impressing upon the Vice-President of the Executive Council the necessity of bringing the matter raised by Senator Pulsford before theCabinet of the Commonwealth. I am free to admit that the Minister for Trade and Customs has indeed a most difficult duty to undertake; and I am also prepared to believe that his greatest anxiety is to do justice to the honest importer, and to punish the dishonest. But a very considerable amount of discrimination is necessary in order to achieve that object. During my five and a half years’ experience of office as Minister for Trade and Customs in Victoria,I had, I might safely say, hundreds of these cases to deal with. I adopted a practice, which I think, gave reasonable satisfaction in this State. Errors and mistakes are inevitable in thepassingof entriesand in connexion with the working of Custom business, and we have to be very careful that when these mistakes occur a determination shall be arrived at as to whether they are intentional or otherwise. I conceive it to be the duty of the Minister, under these circumstances, to take the responsibility of determining, in his own mind, whether there was an intention to defraud the revenue or not. It was frequently my duty to determine that there had been an intention to defraud. If the case was serious or important, and I had the necessary evidence in proof of fraud or wrong-doing, I sent it to the court. But if, on the other hand, I found that there had been merely a clerical error or mistake unintentionally made, I, by no means, let off the offending individual, but fined him, or the firm, for carelessness.Carelessness, of course, cannot be overlooked.
– But under the Victorian Act therewas no publication, I think.
– Every case I dealt with was published next day in the newspapers, and the fine was recorded against the firm. If I was quite satisfied that the mistake was unintentional, and a piece of pure carelessness on the part of a clerk, I never for one moment thought it to be my duty to send the offender to the police court. I do not desire to speak with any degree of harshness concerning the Minister, but, if what has been stated is correct, in my judgment, he is making a great mistake by the action he is taking, and is causing a very bitter feeling - a totally unnecessary feeling - to arise. If that can be avoided by the exercise ofa reasonable discretion it should be done. There is no reason why such feelings should arise at all. It seems to me that there is a considerable amount of friction at the Custom-house. The commercial community feel very sore and bitter, and who of us are not in sympathy with men whose integrity and probity have never been doubted, and who have been taken to the police court because a clerk has been guilty of some inaccurate statement in connexion with a Customs entry ? I think that the Vice-President of the Executive Council, in view of the expressions of opinion which have been made to-day in the Senate, iscalled upon to bring this matter under the notice of the Minister for Trade and Customs; and I hope the Minister himself will see fit to exercise a discrimination which will put an. end to the complaints referred to. There is a section of the Act specially enabling the Minister to deal with these matters, but at the same time, we cannot be blind to the fact that it is totally impossible for the Minister to deal with the whole of the cases that occur throughout Australia. He is for the present located in Melbourne, but he may for a time be located in any of the other State capitals. The cases brought under the notice of honorable senators by Senator Pulsford are typical of dozens of other cases in which I am perfectly sure the merchants would be perfectly satisfied to have all the papers transmitted to Melbourne, and to allow the Minister to deal with them there. It would not be necessary for all the parties to appear before him, and the necessary machinery for conducting the business in this way is provided in the Customs Act.
– Cannot the Minister under the Act delegate his power ?
– I speak subject to correction, but I do not think he can delegate that power.
– Why can he not delegate the power of investigation and report?
– It is true that he could delegate the power of investigation and report, but there is a section in the Act empowering the Minister to deal judicially with disputes that may arise.
– Could he not deal with these matters quite irrespective of that section, as the honorable and learned senator used to do?
– I dare say he could. There is a section in the Act which provides that by consent these matters may be submitted to the Minister and be dealt with by him.
– He has to say whether he will prosecute or not.
– No doubt. There might be this little difficulty about it, that although the merchants might give the necessary written consent to the Minister to deal with the matter, there might be no means of enforcing a fine. I point out, however, that that could be readily overcome, because the Minister could say - “ Before I deal with this case I must have a deposit of a certain amount.” In practice that is what was done by me. There need be no difficulty about it, and punishment, where it was found to be necessary, could be inflicted. Clause 265 of the Customs Act, provides -
If any dispute shall arise between any officer and any person with reference to any contravention of this Act, the Minister may, in manner prescribed, with the written consent of such person, inquire into and determine the dispute, and shall have power by order which shall forthwith be published in the Gazette to impose, enforce, mitigate, or remit any penalty or forfeiture which he shall determine shall have been incurred.
It will be seen that the provision is not limited at all. It covers disputes in connexion with any provision of the Act, and not merely disputes as to duties as was stated. As to the physical difficulty which may be suggested, that the Minister cannot personally determine these matters because he cannot have all the parties before him, I say that in a large percentage of cases the mere submission of written documents, together with reports of officers of the department, would enable the Minister to come to a determination, but the merchant would, of course, have to give the necessary written consent in order to enable the Minister to do so. That would be an infinitely more satisfactory Cause to adopt. The whole of my remarks are founded upon the assumption that the Minister has, after careful consideration of all the reports and circumstances of the case, come to the determination that there is no intention to defraud. If he does come to that determination, I say it is harsh and cruel, and calculated to cause much bitterness*, to insist upon the merchants in such circumstances being dragged before the court. The Minister has a difficult task to perform, and the revenue has to be protected. It may be that in 95 per cent, of the cases the mistakes made would favour the merchant rather than the revenue, but notwithstanding that, where the mistakes made are merely clerical errors it is unwise to resort to the extreme’ course of bringing the matter before a court. I therefore think that the Minister might be urged by his colleague to reconsider the matter, and, should he do so, he will give much satisfaction to those who have been made to suffer unnecessarily in connexion with the administration of the Act.
– In common with other senators from New South Wales, I have had placed in my hands the particulars of a number of cases in which merchants of considerable standing believe that they have been harshly dealt with. I do not propose to give details of these cases, because I have taken an opportunity of inviting the Minister personally to review them. It would be hardly.fair to him to discuss them until he has given his final decision. I may say, however, in respect to each of these cases, and many others of which I have knowledge, that it appears to me the Customs Act provides for two ways in which they mav be dealt with - one, a course which would be free from irritation, and the other a course which may be regarded as much more severe. In all of these cases the Minister seems to have invariablyadopted the course which gives most irritation, and to have passed over the method carefully provided for in the Act for dealing with these matters in a way which would reduce friction to the minimum. Why’ should the Minister act in that way 1 Surely the Federation has enough troubles incidental to the change from the old State regime to battle with without one of those who ought to be amongst its chief guardians seeking to multiply them ? I join my appeal to that put forward by previous speakers that the Minister will see if it is not possible, by a little more leniency and consideration for those who are doing business with the Customs authorities, to avoid a great deal of the friction and trouble with which we are familiar to-day. I desire to mention one section of the Act - I think it is section 158 - which provides that a dispute as to the value of goods may be referred to the arbitration of two experts - one appointed by the Government, and the other by the owner, of the goods. Instead of taking action under that section, it is within my knowledge that the Minister has taken an entirely different course, involving an appeal to the law courts. I could understand that course being taken if, simultaneously, the Minister affirmed that fraud had been committed, but he does not do so. Why does the right honorable gentleman pass over the section to which I have referred, unless he is prepared to make an affirmation of fraud 1 Surely it would meet all the requirements of the revenue if, where he does not suggest fraud, he were to refer matters of this kind to experts to determine the value of the goods ? I trust that the result of this debate will be to cause the Minister to adopt an attitude more in conformity with the harmonious working of the Act. I can assure, the right honorable gentleman - and Senator O’Connor knows this as well as I do - that the feeling in Sydney is an extremely bitter one - so bitter, in fact, that the mention of the name of federation is sufficient to give rise to indignant remarks. In the interests of the Commonwealth more than of the particular individuals concerned, I add my appeal to that of the honorable senators who have already spoken
– Under the circumstances surrounding this matter I do not think I should give a silent vote. It is not my intention to repeat the many excellent arguments which have been submitted, but I join in the request already made that the VicePresident of the Executive Council will bring this matter before his colleague, with a view to a more rational treatment of these cases. I am not going to make a plaintive appeal, because there is no occasion for anything of the kind. There is, I think, occasion for a more rational conduct of these cases. There is no use in giving the Minister power if it is to be ignored in every case, and if every unfortunate employer whose employe has made some technical error is to be treated as a criminal. I therefore join with the honorable senators who have already spoken, in urging that, in all good faith, and in the interests of public business, and the reputation of Australia generally - because even that is at stake in the matter, if it is going to be held forth to the world that half of the merchants doing business in the Commonwealth are criminal persons, or persons of criminal intent - this matter may be speedily brought before the Cabinet in order that there may be a more rational treatment of cases such as those under consideration.
– I, with the honorable senators who have already spoken, and I dare say also with thosewho have not spoken, desire that everything in connexion with the Customs Act and with the Tariff should go on smoothly. But I have travelled to and fro on the face of the earth just as much as any other honorable senator, and I have never come across this universal dissatisfaction which honorable senators have referred to to-day. No doubt there is an amount of dissatisfaction amongst those who have been put to the inconvenience of appearing before a court for the purpose of answering charges of negligence, fraud, or something else. No doubt they disagree with it. They would far rather nothing of the kind had happened. But I have gone amongst the public, who are not entirely composed of merchants or importers, but to a much greater extent of consumers, and the consumers with whom I have come into contact seem perfectly satisfied that the Customs department is doing all it possibly can to protect their interests. If, in protecting the interests of the great majority of the people, importers are put to a little inconvenience, then the community is not going to. suffer to such a great extent as has been suggested. In another branch of the Legislature the Minister for Trade and Customs himself has a seat. Why did not these merchants and importers, who have been put to such inconvenience, take the trouble to get honorable members of another place to bring the matter before Parliament and the Cabinet there ? I have a vivid recollection that they did attempt to do it, and to my mind, as far as the reports in the newspapers are concerned, and as far as my own personal experience is concerned, because I was there and heard something of what was said, the Minister for Customs had entirely the best of the case. I verily believe that if he was here to answer some of the honorable senators, an entirely different complexion would be put on the whole question.
– I wish he was.
– I wish he was, in the interest of the Customs department. But what are the facts in connexion with these cases? I think that the Vice-President of the Executive Council has pointed out that the Customs Act provides that these technical errors are not only errors that could not be dealt with by the Customs officers, and by the Minister for Customs himself, but they have actually become offences under the Act, and I say that the Minister for Customs and his officers are quite justified in allowing the court to decide whether they are technical errors or not.
– Is an error a criminal offence?
– Under the Customs Act it is not a criminal offence, but it is illegal to make a false entry, and I say that a law court is the best place in which to decide whether what has been done is illegal or not.
– It is persecution.
– We shall see about that. A great deal has been said about the inconvenience due to delay in the clearing of goods, but under the Customs Act, if a dispute arises between an importer and the Customs department, all the importer has to do is to meet the claims of the Customs department, and he can clear his goods at any time. He can do that under protest, get his goods, and do business with them as soon as he likes. Then, if he is in the right, he will ultimately get his money back. There is, therefore, really nothing in the statement as to the detention of goods for two or three months.
– But goods have been detained in that way.
– That is simply because the owner of the goods has not been prepared to meet the demands of the Customs department.
– I beg the honorable senator’s pardon. The cash has been tendered and refused.
– If the importer meets the demands of the Customs department he can clear his goods at any time.
– That is not a fact.
– Now, with respect to these false or incorrect entries, I recollect that a number of business men objected to certain provisions that would have prevented a youth under 18 from fillingin any of these declarations. Honorable senators will remember that it was insisted upon that a person should be 18 years of age before he should be permitted to do anything of this kind. These business people would have them doing it at five years of age if they could get the opportunity, and if it would be cheaper. Senators Sargood, Zeal, and Pulsford, and other honorable senators who are acting so energetically, and I believe honestly in the interests of the importers, will not deny that there are dishonest importers. They will not deny that even in this Senate, and even before honorable senators had the privilege of sitting here, statements were made about scandals that had occured in connexion with the Victorian Customs department when Ministers had the power, and exercised the power, of dealing with these cases in this Star-chamber manner.
– Will the honorable senator produce a scintilla of evidence of that, because we have never heard of it?
– It has been said here, and Senator Sargood himself referred to it. He told us of a case that occurred where a merchant who should have been fined £5,000, was fined only an insignificant sum, and the very same evening the Minister for Customs dined with the delinquent.
– I beg the honorable senator’s pardon, I thought he was referring to the exercise of discretion by the Minister.
– That was the exercise of discretion by the Minister.
– That was 13 years ago.
– Senator Sargood was referring to the exercise of discretion by the Minister, and that was what this discretion resulted in. Do honorable senators desire that we should go back to anything of that kind ?
– That is one case in a million.
– Yes ; but if we make provision under which these things can be done, the few black sheep who are to be found amongst the mercantile community, as well as amongst any other section of the community, will at once take advantage of it, and if they do not they will slander the honest merchant who does take advantage of such a provision. The present Minister for Customs says that he will not have anything of this kind, and that he desires that everything shall be done in open day. If there is a mistake made in doing business under the Customs Act or the Tariff, he says that we should let the court decide whether the error is a technical one or whether there is any intention of fraud. If the error is found to be only a technical one, there is a fine which is specified in the Customs Act for such cases, and if it is proved that there has been fraud or an intention to defraud, a greater penalty is provided for such cases. There should be nothing done in connexion with the Customs department which has the slightest appearance of favoritism. So long as matters are carried out in this way satisfaction will be given to the great majority of the people, though a few importers may be subjected to inconvenience for the purpose of carrying into effect legislation to which both Houses of the Federal Parliament have given their assent. I believe, that when merchants and their officers become accustomed to the working of the Customs Act and the Tariff has been in operation a sufficient time all this friction will pass away. We shall have honest entries and honest dealings, and the evil doers will suffer the penalty which, I am sure, every honorable senator wishes that they should.
– Certainly the excited speech to which we have just listened has opened up a much vaster field than that which was referred to by Senator Pulsford in his remarks. I do not know that it was altogether wise on the part of Senator McGregor to drag in a number of topics of what might be called prejudice, and give’ himself the opportunity of making a violent assault upon that part of the community whom he has referred to as importers or merchants, whose very name seems to be anathema to him, to be a sort of red rag which excites him in his bucolic vehemence to attack them on every possible occasion. In this tirade against merchants and importers; we have introduced an illustration that w:Ls given of prehistorictimesin Victoria, and which, when it was first mentioned, seemed to me to hit at Senator Best, because the picture raised, to my mind, was that of my honorable and learned friend sitting down to dinner with the horrible delinquent after having relieved him of a penalty of some thousands of pounds. It would have been a very awkward position for him to occupy, and I am sure that even in Victoria it would not have been tolerated very long. But when Senator McGregor mentions that as a reason why the Minister for Trade and Customs should not exercise a little forbearance and discretion - prudence, I might sa)’ - in dealing with the different complaints, I cannot understand it, because if there is one man who, in my judgment, would rise superior to anything of the kind or any possible temptation to dine with a delinquent, it would be that honorable and learned gentleman. And really Senator McGregor, in his sympathy with the Minister, and his attempted vindication of his administration, which has caused so much dissent, has done him a very grave injustice. He went a little further, and referred to all this as being for the benefit of the consumers. It was a great treat to me to hear one word from this arch-protectionist in favour of the consumers. Unhappily the Tariff has gone from us, and therefore we cannot call upon him to put his sympathy in practice in a tangible way. ‘We would almost like to, have it back, so that we might have this new born zeal for the consumers translated into some kind of action which would really be of -benefit to them. But the whole question is a very simple one. It is whether when accidents, mistakes, clerical errors occur in making up a long invoice - in adding up the figures in a column, and carrying over £10 or £20 less than the total really is- these should justify a charge of making a false entry, and bringing the person concerned before the minor courts of criminal jurisdiction with a view to having them remedied. Police courts are not the places in which to rectify clerical errors, but the places in which to punish offenders Whilst I frankly declare my sympathy with the Minister in having to deal with six different States, with a new Tariff and a good deal of new machinery, at the same time when I find court after court, declaring that they must impose fines with the greatest reluctance, that they regret that the smallest fine that they can impose is £5, and that there is not a tittle of imputation of wrongdoing, I ask myself whether it is not possible that many of these cases might be made the subject of inquiry to ascertain whether there is any foundation of wickedness or attempt to do wrong under the Act before legal proceedings are instituted. I quite admit that that ought not to be done except in clear cases of clerical error. And surely we may trust the Minister and his officers in these matters. Of course, if there is any element of fraud or wrongdoing, or if the errors are so persistent as to give the impression that there is wilful negligence, then. I think that there ought to be no excuse. But in the first instance there ought certainly - and that is all Senator .Pulsford asks for - to be some kind of inquiry. It was put as if he had asked that some discrimination should be exercised - some attention paid to one class of persons, rather than another, and that merchants of known standing should be dealt with on a different footing. 1 do not know that he meant that at all, and if he did, I do not agree with him.
– No.
– Every case ought to be investigated. I do not care whether the person concerned is a merchant of standing, or a merchant of no standing. What I look at is the nature of the error, and not the standing of the firm. We should have uniformity and even-handed justice amongst them all, and the only thing I think which requires careful consideration, is whether or not there should be such a multiplicity of these cases brought before the courts when it is admitted on all hands, even by the magistrates, that there is no element of wrong-doing, but that it is simply a question of accident which may occur in the best regulated firms, and amongst the most Honest people.
– This seems to me an ex parte statement made on behalf of the importers, who feel aggrieved at the way in which they have been treated. For my own information, I should like to see the officer’s reports in each case. It is all very well to speak of the Minister being able to deal with a number of these cases in Melbourne. Each case could be dealt with in that way when there was a Minister for Customs, in each State, but when there is only one Minister for Trade and Customs for all Australia it would certainly lead to great delay. If the merchants of Melbourne are to have a number of these cases decided by the Minister, the merchants of Sydney, Brisbane, Rockhamption, Perth, Fremantle, and even Port Darwin will have an equal claim to have their cases decided by the Minister ; otherwise it would be making fish of one and flesh of another. Supposing a difference of opinion arose between a merchant at Port Darwin and a Customs officer, would it not take almost months for that dispute to be decided if it had to” be referred to the Minister in Melbourne?
– It is provided in section 9 that the Minister can delegate his authority.
– What better authority could deal with such matters than a trained J udge or magistrate ?
– The Collector of Customs could do it. It has always been done in Victoria.
– I quite understand the objection of the importer, who doe’s not like to be lugged before a court. What I wish to know is how the Government are to treat all the people of the Commonwealth alike. No doubt there is a good deal of hardship in these cases, and weallsympathize with those who are lugged before the court over trifling matters, but I also recognise that in launching a Federal Tariff the Minister for Trade and Customs may have to overcome a number of difficulties which did not confront the States Ministers of Customs. It would be a good thing, when a question of this kind arises in the Senate, if we could hear the Minister give his version of the story. So far as I can judge there is no one in the Chamber who can state his side of the story, for the all-sufficient reason that there is no one who knows all the circumstances. Therefore we are likely to go a little astray from not hearing both sides of the question. If a division was taken on the motion I should feel unable to vote. My opinion would not be worth much about a question of this kind, and I should have to walk out of the Chamber unless I had first heard what the Minister had to say.
Senator Sir WILLIAM ZEAL (Victoria). Senator Styles cannot have read the sworn statements in the press or he could not have come to such a conclusion as he has. We have had a merchant of standing in Melbourne brought up and fined for importing deleterious tea. The Government analyst has declared that that tea is perfectly wholesome and that he would use it. That, I submit, is very striking evidence. The unfortunate importer was fined by the police magistrate because the sample of his tea contained8.5 instead of8 per cent, of ash. Now,5 per cent. of ash would represent half-an-ounce of deleterious matter in a hundredweight of tea. ‘ If a chest of tea were exposed in a store for two or three hours when a hot wind was blowing, it would be found to contain 2 or 3 per cent. of additional ash. While we do not wish the law to bo broken, we do not desire to see men of standing treated like criminals in the courts! and their names branded to all eternity simply because they are the objects of distrust by the Minister. It is a most unfair way in which to treat men. Surely men who have been in business for many years are entitled to as much consideration as the Minister.
– They ought to be stopped from selling dirt for tea.
– The honorable senator must know nothing of the subject or he would not make such a charge.
– I have drunk a. lot of tea and a lot of dirt too.
– There is tea and tea. The honorable senator must know very little about the sale of tea, if he thinks that the difference between8 and 8-5 per cent. in the ash constitutes a deleterious matter, and prohibits that article from being sold as wholesome. A merchant should not be brought before the court for such offences.
– What does the honorable senator wish the Minister to do?
– To use his common sense - not to be a bully and to bring unfortunate men before the court and brand them as criminals. That is not what he is in office for.
– I do not think that the Minister for Trade and Customs is a bully. He is one of the most gentle-mannered men I have met. I ask anybody who has had any transactions with the Minister if he has ever found him discourteous in any respect. Honorable senators have been led away by letters and various publications on the part of certain traders who happen to come into conflict with the Minister. We have heard a very great deal from Senator Zeal and others about the hardship there is in bringing men of standing into court. What hardship is there in bringing a person of standing into court if, owing to his neglect or the neglect of his clerk or any one else, he commits a breach of the Customs regulations ?
– But do not treat him as a criminal.
– He is not treated as a criminal. If he has to pay a fine of any kind, and if there are certain circumstances which clear him in the minds of the public, how does his reputation suffer? Senator Zeal mentioned the case of tea importers. I am not prepared to express an opinion about the quality of the tea referred to, but” the expert evidence certainly differed very much on the question of whether it was wholesome or not. One expert said it was wholesome, and the other said it was not. Some of the honorable senators who were prepared to support the duty on tea in the interests of the consumers, who said that if we had free tea there would be no regulation to prevent the admission of large quantities of unwholesome tea, now seem to get very angry because the Minister carries out the regulation as to tea inspection. Senator Zeal, if I may be so personal, is not likely to have to drink any of this tea which is brought in by Gollin and Company, or any other firm of similar standing. It would be sent into consumption amongst the working classes.
– Nonsense!
– It is not nonsense. The honorable senator said that he wishes the Minister to exercise his common sense, and’ go through the details of every* case.
– I did not.
– How can he exercise his discretion ?
– Delegate his authority to the collectors.
– Has he not told his officers to carry out the law without respect of persons, and bring before the court, wealthy men as well as the poor? We know very well that it would be a matter of impossibility for the Minister for Trade and Customs to in any way at all go into the details of every case. Each Minister of Justice issues a general instruction to cany out the law,, and it is carried out, and when a working man is found guilty of a charge there is no talk about it. Why ? Because he is not a person of standing, I suppose. In carrying out the law there is a considerable amount of hardship necessarily inflicted on innocent persons.
– This was a question of whether there was a certain percentage of ash in the tea.
– What would the honorable senator have done in that case ? His officers would have reported the case, and said, according to the standard which has been set up in Queensland, and which has been adopted for the Commonwealth - “ This tea is unwholesome, and, therefore, we shall refer the matter’to the courts.” Does the honorable senator object to having these cases settled in the courts ? Would he prefer to have a system such as that which existed in Victoria some time ago, and under which a merchant was fined no less than £2,000 in camera by the Minister, and dined that very evening with the Minister ? It was a wrong system,’ and the Senate evidently thought so too, because it passed certain clauses which compelled such cases to be decided in open court. I can’ well believe the statement which has been made that, owing to the system of carrying out the Customs regulations and law in the past, Queensland lost no less than 10 per cent, of its revenue. How is either the Minister or the court to decide what is a clerical error, and what is not? I venture to say that in no case of the kind has the merchant dared to punish the clerk who made the clerical error. A merchant knows very well that the clerk believes that it was his wish that the clerical error should be made. He darenot punish the clerk, because, if he did, probably the clerk would have a very good case against the firm if it ever came into Open court. For every single case of hardship under the regulations, i believe that there areten cases of prosecutions eminently just. If persons would only make a little more allowance for the difficulties of the Minister and the work which he has to do they would not join in this agitation, which is promoted by men who desire to break the law. The Minister is endeavouring to carry out the law and to do justice to the Commonwealth, without desiring to inflict a hardship on any one. He is merely anxious to protect the honest against the unscrupulous trader who wishes to get his goods in at such a rate that he can compete unfairly with the honest trader who pays the full duty. I believe that there are thousands and thousands of such importers throughout the Commonwealth. They are willing to pay the duty imposed by the Tariff, but there are other unscrupulous individuals who would smuggle every commodity they imported if they could.
– They ought to be punished.
– Mr. Kingston is trying to punish them, and if in his attempt to carry out the law, certain hardships are indicted, why should there be this outcry on the part of Senator Symon and others, who ought to know better?
– I have not joined in any outcry in behalf of those who are smuggling.
– The honorable and learned senator has joined in the outcry against the Minister.
– I have not joined in anything of the kind.
– “What was Senator Symon’s speech if it was not joining in an outcry against the Minister t He said that he made every allowance for the difficulties of the Minister’s position ; but to indulge in a quarter of an hour’s speech against the department, and to wind up with a statement of that kind, which the public outside will lose sight of, leads to the inference that the honorable and learned senator did join in the condemnation of the way in which the Minister has carried out his duties. I, for one, deprecate that action, and believe that what Mr. Kingston says is quite correct. If the importers will go to the department when they have any doubt, and will be quite willing to submit their case to the officers to say whether the duty shall be paid or not, they will be treated with every consideration ; but if they go to the Customs and endeavour to get their goods through, and then, after being discovered in making their “ clerical errors,” so called, are considered to be guilty of making false statements, I think the Minister is quite right in asking the various magistrates throughout the Commonwealth to decide such cases. Some of the magistrates who have had these cases brought before them, in my opinon, have been affected by “local social influences which , have been brought to bear. I will not mention any particular place, but there are some people that I know of in the Commonwealth who cannot be relied upon to give a fair verdict in cases of this kind. It is a very great pity that the cases which come before the courts are not tried elsewhere. We know that it is very often found necessary when a crime has been committed to try the case away from the locality on account of party feeling which might otherwise influence the verdict. That kind of thing has influenced the verdicts in these Customs cases to a very large, extent. I hope the Minister will get fair play, and that we shall allow a year or two to pass before we condemn the Customs administration. Let the Minister and his officers have a fair show to inaugurate the Customs regulations which they deem to be best in the interests of the community.
Senator PULSFORD (In reply).- The remarks which have been made by Senator Higgs would not, I think, have been made had he been aware of the extensive character of the business of the Customs-house. I suppose that in one single general cargo of goods from oversea there may be 500 sets of entries, and perhaps in one line 10, 20, or 30 different items of the Tariff may be affected. There are, therefore, almost innumerable opportunities for errors to arise. All that is desired is that a mistake shall be recognised as such, and that no attempt shall be made to visit upon any man as a crime that which is simply a clerical error. There is no occasion to continue this debate. I hope that the VicePresident of ‘ the Executive Council will see his way to bring the matter again under the notice of the Cabinet. The honorable and learned gentleman appears to be under the impression that these prosecutions are looked upon as not necessarily injurious to anybody’s character. I should- like to say, in reference to a case which was heard in Sydney a few days ago, that one of the persons who was charged gave notice of appeal. In another case that occurred lately in Melbourne an importer appealed to the court almost in pleading and pathetic terms as to his character and standing in the mercantile community, saying that he had been in the habit of paying the Customs £60;000 or £70,000 a year for years past, and that it was not a fair thing that, on account of a trumpery mistake made by one of his -clerks, he should be charged in a police court with falsification of entries. I think that the matter is simplicity itself. It is so plain that I cannot for the life of me imagine the ‘VicePresident of the Executive Council refusing any longer to bring the subject before the Executive Council with a view to the whole matter being discussed, and arrangements made which will prevent the recurrence in the future of the very unsatisfactory and disgraceful scenes that have been witnessed lately.
Motion, by leave, withdrawn.
page 16080
– I wish to bring before the Senate a matter of practice in reference to Messages passing between the two Houses of the Legislature. The honorable the Speaker and myself have had a consultation in reference to the matter, and have come to the conclusion that the present practice is very inconvenient in requiring that both Houses should be sitting when a Message is received from either of them. There is no standing order which compels this to be done ; we have simply followed the practice of the House of Commons. No doubt, there was a very good reason for the practice when it was initiated ; but that reason has ceased to exist for some two or three hundred years ; and if the Senate agrees I shall in future receive a Message from the House of Representatives if it is signed by the Speaker and brought by the proper officer of the House, notwithstanding the fact that the House of Representatives is not sitting. I think that practice will in all probability relieve us from some sittings which we might be obliged to hold if the old practice had continued to be observed. The Speaker intends to make a similar statement in the House of Representatives to-day.
page 16080
President of the Executive Council, upon notice -
Is lie aware that the Sydney Sunday Times of the 14th September contains the following words, stated to have been uttered to a representative of that journal by Sir William Lyne, Minister of State for Home Affairs, viz. : - “ I have done fairly well to advance the capital question so far against pretty strong odds” ?
In what way has the selection of a site for the federal capital been advanced as alleged by the Minister ?
What are the “pretty strong odds” alluded to by the Minister as operating against the selection of a site for the federal capital as required by the Commonwealth Constitution ?
Do the “ pretty strong odds,” against which the Minister alleges he has so “ fairly well “ striven, exist in the Federal Cabinet, the Federal Parliament, or are they furtive ?
The position has been so far and so satisfactorily advanced, that there is a certainty, we trust, of deciding the question during the present Parliament. The Minister for Home Affairs has had the most cordial assistance of his colleagues in every step that has been taken. If the honorable member would read some of the Sydney and Melbourne newspapers, he could easily discern what and how strong has been the opposition to the action taken by the Minister for Home Affairs in making provision for the senators and members of the House of Representatives to visit the various sites.
page 16080
asked the VicePresident of the Executive Council, upon notice -
Has the Defence department of the Commonwealth any more discarded drill instructors that they can shelve on to South Australia ?
– The answer to the honorable senator’s question is as follows : -
The Minister is not aware that any discarded or useless drill instructors have been shelved on to South Australia.
page 16080
asked the VicePresident of the Executive Council, upon notice -
– The answer to the honorable and learned senator’s questions is as follows : -
This matter will be inquired into, and information given at the earliest possible moment.
page 16081
asked the VicePresident of the Executive Council,upon notice -
– The answers to the honorable senator’s questions are as follow : - 2 and 3. The index will be published as soon as possible.
page 16081
Bill received from House of Representatives, and (on motion by Senator O’Connor) read a first time.
page 16081
Bill returned from the House of Repre sentatives with the following message : -
The House of Representatives returns to the Senate the Bill intituled “A Bill for an Act to regulate Parliamentary Elections,” and acquaints the Senate that the House of Representatives has agreed to the amendments made by the Senate on the amendments of the House of Representatives, Nos. 25, 28, 30, 41, 88, 95, 99, 102, 140, and 143 ; and that it does not insist on amendments Nos. 2, 27, 80, 87, 119, 1 43-100, and 162; and that it insists on amendments Nos. 6, 21-24, 58, 114, 139, 180,192, and 196; that it has agreed to the Senate’s amendment on House of Representatives’ amendment No. 104 with further amendments ; that it does not insist on the part of amendment No. 110, to which the Senate has disagreed, and has agreed to the Senate’s consequential amendment thereon with a further amendment; that it insists on its amendment No.141, and. disagrees to clause 182, as amended by the Senate : that it does not insist on amendment No. 161 (the omission of clause 21 1), but has amended the clause instead.
– I move -
That the standing orders be suspended to enable the message to be taken into consideration forthwith.
We are all well aware of the position with regard to this Bill as between the two Houses of the Legislature; and as I am submitting this motion, perhaps it may be convenient to honorable senators if I state what is now the. position with regard to the procedure and the course which I propose to ask the Senate to take. As the matter now stands, these amendments, having been made by the House of Representatives, disagreed to by the Senate, and insisted upon by the other House, the position is this : That according to the standing orders no other course is open now to bring about agreement between the two Houses, but to follow the procedure for conferences. Under the temporary standing orders that procedure requires two ordinary conferences, or perhaps more probably dumb conferences, and then a free conference if necessary, before anything else can be done. It will be generally recognised that this procedure for a dumb conference is nothing more than an elaborate method of conveying a message. It has been recognised generally, I think, that an archaic process of that kind is really rather unfitted to our present method of doing business. In the draft standing orders, which have been so fully considered by the Standing Orders Committee, and which have been laid upon the table of the House, it is proposed to do away with that. I believe that it will be found that under these draft standing orders there will be quite sufficient scope given for the sending of messages backwards and forwards between the two Houses to enable the sending back of a message even at the stage at which we have now arrived. I think I shall be carrying out the wishes of honorable senators, if I ask that we suspend so much of the standing orders as would prevent the ordinary common-sense course being followed of sending a message down to the other House conveying what we may do here in committee, and asking the other House to consent to any course which we may suggest. I do not move that now, but it may be convenient now to state that if this motion which I now move for the suspension of the standing orders is carried, as I have no doubt it will be, I propose to ask the Souse to so into committee to consider this message, and in the usual way to get an expression of opinion from the committee ; and then upon the adoption of the report of the committee by the Senate, I propose to ask that the standing orders be suspended, so as to enable a message to be sent to the other House in the ordinary way. I have little doubt that the result of our deliberations in committee will be to bring to a conclusion this matter of legislation which has been before the two Houses for so long.
Question resolved in the affirmative.
In Committee:
– I think it will be for the convenience of the committee if I state shortly what points are now in difference between the two Houses. In the first place, in regard to the clause known as 140a, our amendment has been modified. Honorable members will no doubt recollect that it was proposed to give power to the Minister to make regulations enabling voters to vote outside their polling places. According to our amendment that was to apply equally to elections for the House of Representatives and for the Senate. The modification made by the House of Representatives has the effect of restoring the clause as amended by them in regard to that House, so that for the House of Representatives the voter may vote in any part of a division. The regulations do not apply to that. They have accepted , our amendment with regard to elections for the Senate, by approving of the making of these regulations, in so far as elections for the Senate areconcerned. The next matter of importance is the clause relating to the delimitation of the boundaries of electorates for the House of Representatives. Under the Bill, as it originally stood, it was proposed that the boundaries of electorates for the House of Representatives should be fixed by a commissioner. He was to make a report, which was to be laid upon the table of the House of Representatives. If the House accepted his proposal a proclamation would issue proclaiming the electorates. If the House did not accept his proposal they intimated that by resolution, and they might also intimate by resolution, certain suggestions with regard to the framing of the boundaries. The Senate insisted upon the plan of the subdivisions of the States being laid before both Houses, and approved by both. I propose to ask the committee to consent to a modification of this proposal as it comes from the House of Representatives. I need not state the matter in detail now, but the general effect of the modification will be to make it compulsory to lay the report before both Houses of Parliament, and to take away from either House the power of modifying the report, while leaving the power of either accepting or rejecting it. If they accept it, the divisions provided for will be proclaimed, and if they reject it, it will be sent back to the commissioner for modification, and he alone is to have the power of fixing the boundaries.
– Without any directions from Parliament?
– Yes. I shall elaborate that when we come to deal with the question. Considering that it is merely incumbent upon us, as well as upon honorable members of the other House, to do our best to bring this matter to a final conclusion, honorable senators will see that there are very good reasons why some such suggestion as I have made should be carried out. The next matter of importance is the section disqualifying State members. The House of Representatives has insisted upon that amendment, and I propose to ask the committee to agree to it. With regard to plumping, the other House adheres to the attitude it took up before, and has again carried the proposals for plumping. Although I have all along felt strongly that we ought to have plumping for the Senate, I recognise at once the very strong expression of opinion given in the Senate on two occasions, and as we must have some finality in the matter, I think it is reasonable that we should ask the other House to concede that point. I shall, therefore, ask the committee “to adhere to the position which we have already taken up. In connexion with, perhaps, the most important amendment insisted upon by the Senate, the House of Representatives has given way. I refer to the provision for an elections tribunal. They have suggested a very slight, amendment, providing that the regulations which it was proposed should be issued by the High Court may be issued by the. GovernorGeneral until the High Court is established, and whether issued by the
High Court or by the Governor-General, they are to be laid upon the table of both Houses, and may be disapproved of by a motion in either House. I think I have referred to all the matters of importance. I have very little doubt that when we come to discuss them in detail, a via media will be found by which we can agree upon some form of message which, I hope, will bring both Houses into harmony upon this piece of legislation.
– Perhaps it may shorten discussion if, before Senator O’Connor deals with the first of the amendments, I take the opportunity of referring generally and briefly to them. I should, first of all, like to say that I think most of us will agree in the exceedingly wise course rny honorable and learned friend proposes to adopt in relation to the inconvenience which might otherwise arise under the standing orders. The standing orders are, of course, merely temporary, and, as the honorable and learned senator has pointed out, the somewhat antiquated process of conferences which are conducted by writing, and in which no speech is permitted, is substantially the same thing as the transmission of messages - with this difference, however, that conferences of that character interrupt and delay the course of business, and are otherwise inconvenient.
– Both Houses must suspend proceedings.
– As the honorable and learned senator points out, both Houses must suspend proceedings while these conferences take place. I, therefore, think we must all agree as to the facility which my honorable and learned friend proposes to afford for the transaction of this particular business by the course he intends to take. I think it is only right to say that, and to express my entire concurrence in the line of action he has indicated. With regard to the amendments, there is only one to which I should like to direct particular attention. I view with satisfaction the course to be adopted with regard to clause 151, and particularly with regard to the provision for referring disputes as to elections to a court, instead of to a committee of Parliament. There can be no doubt that in this matter tho Senate has made a provision which is abreast of the times, and one which I am quite sure the House of Representatives will recognise as such, and as calculated to more efficiently and more justly bring about the determination of questions of that character. The only controversial matter to which I intend to allude is that to which my honorable and learned friend referred in connexion with clauses 22, 23, and 24 in relation to the division of districts for the House of Representatives. I quite agree that as to clause 22, which requires that the report and map of subdivisions shall be laid before the House of Representatives, it is only proper and natural that they should be laid before both Houses of Parliament. There can be no possible objection on the part of the House of Representatives to that course being adopted. It really does not involve any disputable matter. I think the same course ought to be pursued in regard to clause 23 ; but the real issue between us now is as to clause 24, and in order that that may be shorn of what is certainly a very contentious principle, I understand that my honorable and learned friend proposes that we should adhere to the position to the extent of eliminating the words at the end of the clause “ in accordance with the requirements of any such resolution.” If those words are allowed to remain, the House of Representatives will be able to give an express direction by way of resolution in dealing with any report of the commissioner. The effect would be practically to take the making of the report out of the hands of the commissioner, and to place it absolutely under the control of the House of Representatives. Prom the point of view of the whole scheme formulated in these three clauses that would be exceedingly undesirable. It would render the position of the commissioner absurd. It would place him in a position in which his functions might really be exhausted after his first report was sent in, and in point of fact the House of Representatives would be not so much a Court of Appeal against him as a master who, being dissatisfied with what his servant had done, could direct him to adopt a different course. We shall be ready to agree to what Senator O’Connor has indicated in regard to these words, but I am afraid that what he suggests does not go far enough for me. Having given the matter the greatest consideration, arid having listened to what my honorable and learned friend has had to say, I still think the Senate ought not to abrogate its functions and relinquish its right to have a voice in the settlement of these matters.
– I have not discussed the matter. I have not stated my views fully.
– That is so, and I do not desire to go fully into the question now. I merely say that I do not agree with what my honorable and learned friend has indicated. I. think the result of what he proposes would be that the commissioner’s report would be sent back until the House of Representatives got a report in conformity with the views given expression to in debate. That would be disastrous in many ways, and particularly to the smaller States, whose representation in the other House is entirely overborne. I shall deal with the matter more in detail when we come to the point.
Clause 140a (Where electors may vote).
– Honorable senators are no doubt familiar with the amendment in connexion with this clause. The effect of it is that, with regard to the House of Representatives, it is provided that a voter may vote anywhere in a division ; but with regard to the Senate, power is given to the Minister to make regulations, and under these regulations provision may be made for allowing a voter to vote anywhere in an electorate for the Senate, wherever it may be, and though the State may be considered as one electorate. As the Senate by a very large majority carried the proposals allowing these regulations to be made, it appears to mc that there is really no reason why we should not carry the clause as it now stands. The only amendment made is in regard to the House of Representatives itself, and will have the effect of giving an elector the right to vote anywhere in a division for that House. Therefore I move -
That that part of the amendment of the Senate to the amendment of the House of Representatives to which that House disagrees, be not insisted on, and that the consequential amendments in clause 140a be agreed to.
– I think that we should ask the other House to make some alteration in the amendment which they suggest. They are practically asking the Senate to restore the clause which they sent up, in addition to retaining the clause which we agreed to ‘when the Bill was last considered. If the clause is passed in this shape, an elector at an election for the other House can vote anywhere in his division. In the case of an election for the Senate, regulations may be framed to enable a voter to vote anywhere within the State ; but if such regulations are not framed, he can only vote at the polling place for which he is registered. If it is safe to allow the elector to vote at anyplace within his division in one case, why should it not also be safe to allow an elector at a senatorial election to vote at any polling place for a House of Representatives division ? The names of all the electors will be on a divisional roll, and a copy of each divisional roll will be supplied to every polling place. Therefore, all the safeguards you have when a voter votes at any polling place in a division exist just the same in the case of a senatorial election as in the case. of an election for the other House. What I suggest is the insertion of the words “ of the Senate or “ before the words “the House of Representatives” in the amendment.
– If you do not put in words at all, the same effect is obtained by disagreeing with their amendment.
– If the opinion of the committee is that it would apply to both elections, I should be prepared to disagree with the amendment of the other House. It is a distinct restraint upon the elector as regards a senatorial election. It is not a fair limitation to impose.
Senator MILLEN (New South Wales).I entirely agree with the objection of Senator Pearce. It would be a curious anomaly indeed if a man in any electorate were entitled to vote at one polling booth outside his own immediate polling place for the local member, but not for the Senate member. I trust that an amendment will be made in the direction indicated. It could be achieved by disagreeing with the insertion of the words proposed by the other House. Clause 140a as it stood left it clear that an elector, voting at an election for one House or the other, ‘ could vote anywhere within his division. The other House proposes to limit that privilege to an elector who votes for a candidate for a seat in that House. If we strike out that limitation we shall restore the clause to its original position, and every elector, no matter how he is voting, will be entitled to vote anywhere within his division.
– I would remind Senator Pearce that we cannot have everything we want in this world, and that we must get as near to it as we can. After a good deal of discussion we carried a provision making the method of regulation of voting outside a polling place apply equally to elections for both Houses. The Senate was quite content that the method by regulation should apply to voting at a Senate election, but now, because the other House has made an amendment which will allow, as regards an election for that House, a voter to vote anywhere within his division, some honorable senators wish to enlarge the right which has been given to votersat Senate elections. Let me point out that, according to the amendment which was sent up in the first instance, a vote may be given anywhere within a division. There is no difficulty in supplying electoral rolls for a division at every polling place within the division. Therefore at every polling place within a division there is a certain check which can be applied. That is the reason why it is absolutely safe to apply this principle to voting at elections for the other House. With regard to voting at a Senate election, surely it is much better that there should be one system of voting outside the polling place, whether the voting has to be outside the polling place and within a division, or whether it has to be outside a polling place but right away from a division, and in some other part of the State ? Surely it is very much better to have all the voting done under one system. Of course, it is optional whether this regulation is made. There is no doubt that there will be a very strong pressure put upon any Minister to make an adequate set of regulations before the election comes on, if the clause is left as it is. It is impossible to suppose that any Minister would allow voters at Senate elections to be put in a worse position than voters at elections for the other House, whereas if we carry the amendment which Senator Pearce has suggested, we at once put both these electors upon an equality, and the extension beyond that must be left to regulation. If it is all left to regulation, it is impossible that the senatorial voter can be left in that position. Although it would be a perfectly logical position for the honorable senator to take up, still these things do not always lend themselves to absolute logic. There are very strong reasons why the amendment should be made in regard to elections for the other House. I hope that the clause will be accepted’ as it is. I would point out to my honorable friend that the more disagreements there are, the more difficulty there will be in coming to a final conclusion.
– I attach the greatest possible importance to electors being afforded every possible facility to vote at the elections for either House of the Parliament. For many years I have contended very strongly that such facilities should be afforded to the electors wherever they may be located on polling day. Theamendment of the other House gives to thecandidates for seats in that House a privilege somewhat different from that which, they are prepared to give to senatorial candidates. I have no fear but that the Minister will frame the necessary regulations as. to give effect to the desire of the Senate in this respect. In order to expedite the passage of the Bill we might fairly accept this amendment, and trust to the Minister toframe the necessary regulations. It would not be wise to press the amendment which has been suggested by Senator Pearce.
– This is a rather more important question than Senator O’Connor seems to think. Supposing that an election for the Senate and the House of Representatives, took place on the same day. The voter who gave his vote for the candidate for the House of Representatives, and did not go to his own particular polling booth, would be unable to vote for the senatorial candidate.
– Regulations will beframed to meet that. I am quite certain of that.
– In the country districts of Western Australia the opportunity of voting for a member of the other House is the only thing which brings a man to the polling booth. He does not care to come to vote for a senator in whom hetakes very little interest. This is not a. matter of assumption, because the returns, of the voting in that State show that in. the country districts which are represented by Sir John Forrest, who wasreturned unopposed, not many farmers cared to take the trouble to vote for the senatorial candidates. The result of this provision would be that a man would take the trouble to go into any available polling booth to vote for a member of the other House, and would not care particularly whether he was in a polling booth which would enable him to vote for a member of the Senate. That is the risk which I see if the amendment is left as Senator O’Connor proposes. I think it would be far safer for the electors to state in the law what they are entitled to do.
– I also ask Senator Pearce to withdraw his objection. I know that a number of honorable senators feel very strongly on the question of an elector having the right to vote at the most convenient place. I agree with their view, but I also think with Senator O’Connor that, if we carried the amendment which has been suggested by Senator Pearce, it would take away the power that we might otherwise have to enforce the framing of regulations. It is for that reason that I ask Senator Pearce not to oppose the motion which Senator O’Connor has proposed. If we give the House of Representatives a privilege which we have not got - and it is no use to us unless in an extended form - it will be a strong argument for us to use to induce their sympathy in the’ framing of these regulations. I have every confidence that under these circumstances the regulations will be framed, and at the very least we can be no worse off than the House of Representatives. I therefore hope that, to save further discussion, and so as not to create friction between the two Houses, no amendment will be pressed.
– If the regulations are framed at an early date, I hope we shall have an opportunity to discuss them. I trust they will not be framed while Parliament is in recess, because it seems to me that the opinions expressed by many honorable senators are quite opposed to an elector being allowed to vote anywhere within a State. I am thoroughly satisfied that if regulations are framed permitting an elector to vote anywhere within a State, endless confusion will be caused to returning officers, and there will be very great delays in getting in returns from distant electorates.
Motion agreed to.
Clause 8 (Assistant returning officers).
– In this clause, which provides that, certain assistant returning officers shall be appointed, the House of Representatives added the words - “ but no assistant returning officer shall be appointed in or for any portion of a division in which less than 100 electors are enrolled.”
Those words were inserted for the purpose of insuring that the assistant returning officer should be appointed only for those places in which there was a sufficient number of voters to justify such an appointment, and that a mere handful of voters should not have their votes counted by such an officer - in other words, that the officer conducting the counting should be an important officer charged with responsible duties. That amendment has been insisted upon, and it seems to me that there is a good deal of reason to commend it. I move -
That the disagreement of the committee to the amendment be not insisted on.
Senator McGREGOR (South Australia). - I hope that honorable senators will accept the motion. My principal reason is that the amendment of the House of Representatives maintains the secrecy of the ballot. If assistant returning officers were to be appointed in places where probably there would only be half-a-dozen electors, and power were given to count the votes there, and if at such a polling place all the votes were in one direction, the secrecy of the ballot would be destroyed. The secrecy of the ballot is valued by electors more than anything else. This amendment does not prevent electors from exercising the franchise, but merely provides a precaution under which they may exercise it with safety.
Motion agreed to.
Clause 22 (Report to be laid before House of Representatives).
– The three clauses, 22, 23, and 24, involve the question of whether the Senate is to have control over the adoption of the report fixing the boundaries of the electorates for the House of Representatives. Whatever may be done with regard to the scheme of distribution, I think we may all agree that the report and plan should be laid . upon the table of both Houses. In this clause the House of Representatives have omitted the words “ both Houses of Parliament,” and substituted for them the words “ the House of Representatives.” I propose that we shall insist on our disagreement with the House of Representatives. The effect of that will be that the clause will read -
The report and map shall be laid before both Houses of Parliament - instead of merely before the House of Representatives. I move -
That the disagreement of the committee to the amendment he insisted on.
Motion agreed to.
Clause 23 (Proclamation of divisions).
– This clause as we sent it to the House of Representatives read as follows : -
If both Houses of Parliament puss a resolution approving of any proposed distribution, the Governor-General may by proclamation declare the names and . boundaries of the divisions, and such divisions shall until altered be the electoral divisions for the State in which they are situated.
The House of Representatives amended that by striking out the words “both Houses of Parliament pass,” and substituting for them the words, “ the House of Representatives passes,” giving the House of Representatives only the power of approving of the proposed distribution. The proposed distribution will be proclaimed by the Governor-General in a proclamation declaring the names and boundaries of the divisions. I move -
That the disagreement of the committee to the amendment be not insisted on.
It seems to me that, in the first place, it may be recognised that the distribution of electorates and the fixing of boundaries for the House of Representatives is a matter which concerns that House almost entirely. I am aware that something may be said on the other side, but I think it will be admitted that the matter concerns the House of Representatives almost entirely. I can hardly imagine a case in which the Senate would be called upon to interfere with the plan of distribution agreed to by the House of Representatives. It must be remembered that the plan of distribution in question will affect six states of Australia, each one of which returns members to the House of Representatives according to population. Any one who has had any experience of the making of electoral, divisions in the States will admit that it is a most difficult thing to alter any one -division without altering the whole of the divisions. A scheme of distribution must be on some kind of a system, and if you once begin to pull about the divisions which have been made, taking a little bit off one and a little bit off another, it is impossible to do any justice without altering the system altogether. There may be cases in which, some clerical mistake has been made, but, speaking generally, the divisions must be taken as a whole. I appeal to the experience of honorable senators coming from those States where the divisions are fixed by a schedule to an Act of Parliament, as to whether it is not a fact that it seldom happens that any amendment is made in such a schedule. The reason is that the whole thing is a bit of mosaic, and if you begin to remove the boundaries in one part, it is very difficult to say how you can in equity and fairness leave the others. I point this out in order to show that in dealing with this matter practically, we ha ve to deal with the plan of subdivisions as a whole. The Senate would never think of interfering with a plan of division if as a whole it were framed on anything like reasonable lines. I can hardly understand the Senate taking upon itself to interfere, unless it could interfere in some effective way. The difficulty of giving the Senate power of absolute veto is this - that the report is to be laid upon the table in both Houses the House of Representatives, by an immense majority, or it may be unanimously or almost unanimously, might agree to the proposed subdivision of electorates ; but when the plan came to the Senate, if this House had the power, it might absolutely prevent the division taking place.
SenatorFraser. - Senator O Connor asks us to waive our rights altogether.
– It is an assumption that we have any rights in reference to the matter. Our right is to decide this matter now. We are exercising our right now, and if we exercise it in such a way as to hand over this work to a commissioner, we are notgiving up our right, but are exercising it.
– Exercising it in order to abdicate it.
– We are not abdicating it. The States Parliaments have the right in all the States of Australia to control the management of the railways in every particular. But they have decided in the interests of the public to hand over a large portion of that right to commissioners. In the same way we have the right to send our own officers to make surveys and fix the boundaries of electorates. By handing over this work to a commissioner we do not give up. any right whatever. The question is how are we to exercise the right, and we may equally well exercise it by interfering in every detail or by handing over the details to someone else. We propose to hand over the final approval of this matter, which almost entirely concerns the House of Representatives, te the House of Representatives itself. If this matter were to be decided by the schedule of an Act, I could quite understand having some means by which the two Houses could be brought’ into agreement over the question of the boundaries of the subdivisions, because if there were such a schedule the Act would have to be passsed in the ordinary form, and the Senate would have an opportunity of making amendments in it. There would be discussions in both Houses, and messages passing between the two Houses. We should be able to arrive at some finality. But there is no way of arriving at finality if both Houses are required to give their consent to the particular form, and neither House has the power to interfere with the other, or to make suggestions for bringing about an agreement. How would the thing work out practically? -A plan would be laid on the table of both Houses. That plan would have been prepared by the experts. If the plan was approved of in the other House, and disapproved of in the Senate, what could the commissioner do? He could prepare another plan, which might be a little bit different from the previous one. That might meet with the approval of the Senate, but the other House might not approve of it. Then how is - finality to be obtained. So far as concerns the actual working of the electoral machine,’ I would rather see this business managed by means of an Act of Parliament, defining the electorates in the schedule of a Bill, than leave it in the power of the Senate absolutely to make it impossible to carry the distribution of districts of which the other House has approved. We have decided the question of whether the distribution should be made in accordance with the schedule of an Act of Parliament. We have adopted this system, the great advantage of which is that instead of the distribution being by the Government it will be carried out by an officer who will be appointed for that special work, and who, although paid by the Government, will occupy a very high and responsible position. I hope that he will be such an officer that he will be able to carry out the distribution in a way satisfactory to Parliament.
– That is the practice in Great Britain, and it has worked for many years past with thorough success.
– It has also been the practice in New South Wales, and was arrived at there for the very reason that we found it impossible in the actual working out of the business to have any satisfactory delimitation of boundaries in any other way. If the matter comes before Parliament you have to have a general discussion, and if you once begin to pick about a plan of subdivision you never know when you are going to stop. We find that the method here proposed has worked exceedingly well in New South Wales, where’ the delimitation of boundaries has been left to a commissioner. I take it that if clause 24 remains as it is now there would be a great deal of ground for comment as to the powers which are given to the House of Representatives ; because, no doubt, in accordance with the latter portion of clause 24 - which provides that the Minister may direct the commissioner to propose a fresh distribution, in accordance with the requirements of any resolution passed by the House of Representatives, which would be an instruction to the commissioner - the position would be that the plan laid upon the table would be one made by an officer responsible to the Government, to Parliament, and * to the public. He would lay this report as the best result of his labours upon the table of both Houses, lt would then be open to both Houses to discuss it, and open to the Senate as well as to the other House to pass any resolution it thought fit in regard to it. If the amendment which I suggest is carried, the position will be that either House will be bound to accept or reject the report. They can make no suggestion in regard to it, and can exercise no control over the commissioner in regard to its details. The probability is that in 99 cases out of 100 it will be accepted, but, if it is rejected, though the Minister will have power to refer it back, there will be no power in either House to alter the boundaries. It will then be open to the commissioner to correct any errors which he may have made, or, if he can discover no better distribution, to send the report back again. In the meantime, while it has been under consideration by the House of Representatives, it will be open to the Senate to consider the matter, and pass a resolution in regard to the report, or in regard to any particular portion of it, and to send a message to the other House containing its views with, regard to the divisions. The other House would, as a matter of right, duty, and courtesy, consider any representation of that kind made by the Senate.
– They would say it was an impertinence, because the Act expressly gives the power to them.
– Why does the honorable and learned senator assume that any representation about a matter of that kind would be considered an impertinence when he knows that the Senate has a right to express an opinion upon any subject that is under discussion by the other House ? There is no doubt that the power to express an opinion in that way would be sufficient to carry out the views of those who hold that the Senate should have some voice in the fixing of these electorates. The House of Representatives would not have the power of arranging the dis.tribution of seats, because the whole scheme would be in the hands of an independent commissioner whose work would be open to the criticism of both Houses of Parliament, of the press, and of the public. I say that under such a scheme we have quite a sufficient safeguard for fairness in the distribution of seats. Under this proposal we place the whole power practically in the hands of the commissioner, and we avoid the possibility of the whole scheme of distribution being blocked, as it might be by some resolution carried in the Senate. We ought to be very careful before stopping the progress of legislation, and doing something which might, and probably would, have the effect of defeating a measure of this kind, simply for the sake of having a power which we should never exercise. If we should never exercise the power, and I do not believe we would, is there any reason why we should insist upon having it, and by so doing run the risk of losing the measure? At a later stage. I am going to ask the committee to insist upon its disagreement in regard to a matter concerning elections for the Senate. I have no doubt the other House will agree that the method of election for the Senate is a matter which may fairly be left to the Senate to determine. But I say that for the very same reason if we take that view, we should be prepared to yield to the other House that the division of electorates for the House of Representatives should be left in their hands._ I can quite understand honorable senators objecting to the other House dictating to the Senate as to the method in which voting for the Senate is to be carried out, and we may just as easily understand that members of the House of Representatives should ask why the Senate should insist - not as in the case of a Bill which can be amended and discussed between both Houses, but in connexion with the passing of resolutions - upon having this right at any time to absolutely prevent the carrying out of a scheme of distribution for the House of Representatives, and in regard to which the Senate has really no direct concern. For these reasons, and as we must come to some finality, I think it would be much more reasonable for the Senate to give way in this matter than that the House of Representatives should be asked to hand over to the Senate the power to block a system of distribution of seats which may be perfectly satisfactory to the whole of the members in another place.
Senator Sir JOSIAH SYMON (South Australia). - This amendment, from my point of view, involves very grave considerations in regard to the position and rights of the Senate. My honorable and learned friend says that we are exercising our rights now. We are exercising one right now, the right of joining in a piece of legislation ; but the other right, which we are supposed to exercise, is here proposed to be cut off entirely. We are asked to commit a sort of happy despatch. We are asked to exercise our right of legislation in order to deprive ourselves of any voice in the distribution of seats for one branch of the Legislature - the House of Representatives. I, for one, am not prepared to do that. Every one must recognise the plausibility of the argument of my honorable and learned friend. In the case of plumping, it has been said that the Senate ought to be allowed to declare in what way voting shall take place in connexion with the election of its own members. But this is a very different question. There is no more important and vital question connected with representation in Englishspeaking communities, where there are representative institutions, than that of the distribution of seats. I am afraid that Senator Glassey has forgotten that the distribution of seats is not determined by a resolution of either House, but by an A.ct of Parliament to which both the House of
Caramons and the House of Lords have to give their consent.
– But the division and settlement of boundaries is left entirely in the hands of an independent tribunal, and is not interfered with.
– That is not the point in connexion with this amendment. I agree with Senator O’Connor that it is an admirable arrangement, that the plan and delimitation of boundaries of electorates should be intrusted to an independent commissioner. But that is the mechanical part of the business which is brought before Parliament to be adopted in some shape or form, and passed into legislation. But, how is it to be adopted in some shape or form 1 In all other countries, with the exception of New South Wales - certainly in England, South Australia, and in “Victoria - the delimitation of the boundaries of districts for the House of Assembly or the House of Commons, is fined by an Act of Parliament. I say, that there is no question upon which greater feeling has been exhibited in Great Britain, and in connexion with which more violent political conflicts have taken place, than that of theredistribution of seats. I recollect listening in the House of Commons in 1866 to the discussion on the amendment which defeated the Reform Bill introduced by the Russell-Gladstone Government, and that amendment was to the effect that Parliament declined to take any question of the extension of the franchise into consideration until it had an opportunity of seeing how the seats were going to be distributed.
– The House of Lords did the same in 1884.
– I was coming to that. Some eighteen years later, the House of Lords did the very same thing, though the House of Lords had no such right for the position which they took up as we have for taking up such a position in this Senate. The House of Lords said “ We decline to consider any question of the extension of the franchise for the House of Commons until we know how the seats are to be distributed.” Here, fortunately, the franchise rests upon the very broadest basis, but in England the franchise might have been extended in many ways, and in such a way as to have kept the representation in the hands of the tories on one side, or of the liberals on the other, unless the greatest care was taken in the redistribution of the seats. Are we entitled to a voice in this matter ? Undoubtedly. Should we exercise that voice 1 Undoubtedly, it is not disputed. It is true that New South Wales, winch is always in a retrograde state in matters of reform, dealt with this business by means of a Bill. I quite agree with the Vice-President of the Executive Council, that that is a very bad method to adopt.
– I did not say that at all. I think it is a very good method.
– Then what becomes of my honorable and learned friend’s argument as to the practical aspect of it ? The honorable and learned senator implored us not to insist upon our right to deal with this matter because of the difficulty which this unusual method of proceeding by resolution would bring about, and because we could not have messages passing between the Houses as we do in connexion with amendments upon a Bill. The honorable and learned senator pointed out, that if a resolution were carried by the House of Representatives, and a conflicting resolution were carried in the Senate, it would lead to a block.
– The honorable and learned senator will pardon me. What I said was that I should infinitely prefer to adopt the old-fashioned way, which we got rid of long ago in New . South Wales of dealing with the matter by an Act of Parliament, to the plan as proposed by the Senate, but not to the plan as here proposed.
– What I understood the honorable and learned senator to say was that these clauses, being as they are, and the method adopted being as it is, we could not so efficiently deal with the report as we could if it were embodied in the schedule of a Bill. It follows, therefore, that this is a much less efficient method of dealing with the subject than a Bill would be. Being less efficient, it is unfortunate that this method should have’ been adopted. . So far as regards the right of the Senate to have a voice in what is a vital question in regard to the representation of the States from which we come in both branches of the Legislature, the Senate is just as much entitled as the other branch of the Legislature to determine how the people whom we represent here in the way prescribed for the Senate are to be represented in the other branch of the Legislature. It might happen that there would be such a distribution of seats as would lead to 10,000 people being represented by one man in one electorate, and 50,000 being represented by one man in another. Then we might have the whole process of representation changed.
– The electors in any electorate must not be in excess of a certain n umber.
– I am merely putting, that by way of illustration. I do not desire to use the word which has become classical in a certain sense, and say that by “gerrymandering” the boundaries, the interests of the smaller States might be altogether overborne.
– Victoria and New South Wales could sweep the board if they chose to do so.
– Of course they could. I am not going to say for a moment that they would do so, but why should we deprive ourselves of the right to exercise some kind of legislative supervision in this matter 1 Why should we practically abrogate the function which would be ours, if the matter were dealt with by a Bill, because there might be no likelihood of the House of Representatives doing anything unjust ? Exactly the same reasoning applies to the Senate. I agree that the Senate wouldbe very unlikely to interfere, and we should not think of interfering, unless there were some great cause for it. But if this proposal is agreed to, and a great cause should arise to justify the interference of theSenate, where shall be our power? It will have gone. We shall have surrendered it by the motion to which we are now asked to assent. Should we retain the right in order that we may exercise it if occasion should arise, hoping that the occasion never will arise, or should we abandon it now, and, when difficulties occur in the future, lament that the power has been taken from us? But there is a more practical point of view than that. That is the large Constitutional aspect which we shall do well to carefully consider - whether we ought now to surrender a right which we indubitably possess. That we may do so is undoubted ; and, if we assent to this proposal, we surrender our right, and we must for ever after hold our peace.
– I feel that I cannot do so. I should be a traitor to my duty.
– That is how I feel. For honorable senators to surrender this power would be to blot the future out altogether, and say that no matter what may arise we are ready to give up a power given to us by the Constitution. No one of us is justified in doing that.
– We could give them all our rights.
-We could hand over all our powers to the other House if we pleased. But are we going to do that ? That is the question which confronts us under these clauses, and which I hope will be considered. When Senator O’Connor said that the Senate, by this amendment, sought to have a control over the distribution of seats, it was interjected from this side - “ Not a control, but only a voice.” So far as the Senate is concerned, it is only a voice. If we pass the clause, it is not a voice merely which is given to the other House, but an absolute undivided control. The commissioner is to hold office only during the pleasure of the GovernorGeneral - that is to say, the Executive Government. If he presents a report which is approved of by the other House there is no difficulty. But, if under clause 24, it is disapproved of by that House, then the Minister may direct the commissioner to propose a further distribution- of the State into divisions. Supposing he says “I decline.” What is to happen then ? He is to be sacked. And what is the position of the Senate ? It is dumb ; it cannot interfere Are we going to take up that position ? Supposing the commissioner says - “ My distribution is fair, just, and equitable ; my conscience will not allow me to obey that directionof the Minister, therefore I shall take the risk,” and he is sacked. We have relinquished our power of interfering for his protection, or supporting the report which he has brought in. A pretty Senate we should be if we took up that position now. If, when a report comes before us, dealing with the distribution of seats, we choose to say - “We shall leave it to the otherHouse. We shall not interfere with their approval or with their disapproval,” that is another thing, because we shall be dealing with facts as we know them. But here it is like buying a pig in a poke. We are giving up our rights to the otherHouse to do something in the distant future dependent upon facts and reports, and the movement of population, of which we absolutely know nothing at this moment. We are blindfolding ourselves on this question of the distribution of seats, which may be essential to the satisfactory representation of the constituencies. I congratulate my honorable and learned friend upon the elimination of the words, “ in accordance with the requirements of any such resolution,” because that will prevent the House of Representatives from inserting in the resolution an absolute direction as to the distribution which it wished to take place. The same result, however, will be brought about under the clause as it stands. Supposing that the other House passes a resolution disapproving of the proposed distribution, that the Minister gives a direction to the commissioner, and that it is obeyed. The commissioner is provided with all the debates in Parliament. He has got as emphatic a direction lis to what he ought to do as though it were embodied in a resolution. Supposing that he tries his best to obey, giving weight, of course, to his own opinions on the subject as well, and that he sends it back not quite in the form in which the other House would like it, what happens? The other House brings about absolutely the same result by exercising the power of sending back the distribution again and again until it gets exactly what it wants. Who want it? The dominant majority. What is to become of the small States, who may be mostly affected ? All we want is justice. What is to become of the power of the Senate as the protector of the small States, not to anticipate that injustice will be done, because I do not believe that injustice will be wilfully done by any House of Representatives, but to see if the occasion should arise when gerrymandering of some sort or other has taken place, that they are not absolutely shorn of their powers to express their views on the subject, and to enforce them so far as they can. Senator O’Connor says, quite truly, that the report and the plan are to be laid on the table, and that the Senate can pass a resolution. What a tremendous concession, that we are to have the privilege of seeing the document, and of being able to read it on. our files ! If we pass a resolution, what does it amount to ? When Senator O’Connor said he thought that the other House would take a resolution of the Senate into its grave consideration, I ventured to interject that it would be regarded as an impertinence. If I were in that House, I should say - “You have given ns the absolute power of deciding this question. What right have you to interfere?” Strong as I am in my desire that the Senate should be dignified, I think that the other House would be wanting in dignity if it did not treat such a resolution as an unwarrantable interference with the statutory power which we have given them by virtue of this clause. Look at the position in which it would place the commissioner. I am sure that a man will be chosen who will do his best ; but if he has the resolution of only one House, unfortified by an expression of opinion from the other, what a very curious position he will be in ! How would he know what was going to happen to the small States, or what course he ought to take if the representatives of the small States - which are equally represented in the Senate - had not an opportunity of expressing their views ? We know quite well that the spirit of conciliation between the Houses would always prevent any difficulty, and I think we shall all agree that so long as no injustice was done, the largest voice in the settlement of this question ought to be finally with the other House. At this stage I am not going to take any leap in the dark, and hand over any power of the Senate for good or ill to be exercised by the other House. I feel sure that the other House will see it is only fair that we should not be asked to denude ourselves of a power which, although it is not likely to be exercised, might have to be exercised, and if it is not likely to be exercised, can do no harm in being preserved to us.
– I do not think that Senator Symon has helped us very much in coming to a conclusion by what he has said with regard to the rights of the Senate. Because, although I quite agree with him that every right we have should be preserved, I do not think there is anything more dangerous to the real exercise of our power than to take an unreal and fanciful view of the preservation of rights which we never intend to exercise. I should like to know from Senator Symon what right we are giving up ? Has he suggested any possible way in which this right will be exercised ? Has he suggested in what way the Senate could interfere for the protection of the smaller States, or under what circumstances it would or could interfere effectually ? He is not able to point to a single instance in which it could exercise the power. What he wants to do is to preserve a power of blocking the adoption of the plan of distribution which is approved of by the other House, but without being able to point out in any one particular how it would advance or benefit the rights of any of the States. Something was said about gerrymandering. If the Constitution were other than it is, and if localities simply were represented, I could quite understand that there might be a possibility of doing damage or injury to a State. But under the Constitution the representation has to be according to numbers, and no matter what your distribution is, you cannot take away from any State its right to the number of representatives which is fixed in the Constitution. This Bill fixes the number in each electorate with reference to the quota. First you take the population of a State, then you take the number of representatives to which it is entitled, ‘ and distribute the State into electorates so as to give each portion of it a certain, and as far as possible, equal number of . electors. Therefore you cannot possibly have any very great departure from the principle of giving the same number of electors in every portion of the State the same amount of representation. Of course you may have a certain margin which is allowed under the Act ; it may be a little more or it may be a little less. You may have a difference of opinion as to the way in which the ‘ boundaries are to run to include that number, but you cannot affect the number of representatives or the number of electors in each electorate. In what way are you to protect the rights of the State, whether it is a small one or a large one ? What is the power which Senator Symon seeks to exercise? He has pointed out that if there is a power of rejection by the House of Representatives, it can go on throwing out the report of the commissioner until it gets one which is satisfactory. The Senate could do precisely the same thing if he is right in his contention. It could say, “We want an electorate shaped in a particular way, and we shall go on declining to approve of the plan of distribution, although it has been unanimously approved of in the other House, until we force the commissioner to make a plan according to our view.” Senator Symon proposes not only that the other House shall have the power of saying “ No “ until it gets a subdivision of which it approves, but that the Senate shall have a similar power. He talks about the position of the commissioner. What is the position of the unfortunate commissioner who finds’ that he has drawn up a scheme which is perfectly satisfactory to an overwhelming majority in the other House, which is concerned in it, but which is unsatisfactory to the Senate? How can he please both Houses ?
– It will be only a matter of form to pass it in this House.
– It is not a matter of form, but a matter of reality. If the Senate is to have the right to say “ No “ to any plan which is brought up, then the other House is handing over to the Senate the power of settling the plan of distributing the seats therein. Why should they do that ? If a distribution were embodied in a Bill which could be discussed, we should have some way of coming to finality. Surely we ought to take care in the working out of our parliamentary system to have a practical scheme which will not lead to a dead-lock. I cannot imagine any scheme more likely to lead to a dead-lock than the proposal which has been made by my honorable and learned friend.
– The same argument would apply to any Bill.
– When we are dealing with a Bill, we have the ordinary means of bringing the two Houses into agreement. But under my honorable and learned friend’s proposal that could not be done. This method was adopted in order to avoid the difficulties which might arise in fixing the seats in a schedule to a Bill. If we try to engraft upon that plan the power which we can exercise when we are dealing with a Bill, we shall have all the evils which can arise under either system, and not have the benefit of either. If we have adopted the plan of having the distribution of seats fixed by a commissioner, then let us get all the benefits of that system, and do not let us put on the very face of the Act the power to absolutely prevent a distribution of seats which may be approved of in another place. The honorable senator has spoken about looking at the future. I do not think there can be any doubt that after the first distribution takes place there will be no occasions on which the power of the Commissioner will need be exercised. But there will be occasions on which there will be’ a great increase of population in one State, and perhaps a decrease of population in another, which makes a redistribution of seats absolutely essential under the Constitution. When that occasion arises the position is this : The honorable senator asks that it shall be within the power of the Senate absolute^ to stop the carrying’ out of a distribution which may take away from one State the number of members it formerly had and give more members to another State in accordance with the representation it should have under the Constitution. Why should that power, which, although a negative power, can be exercised so as to enforce the will of the Senate, be exercised by the Senate rather than by the’ House of Representatives, which has and ought to have the determination of those seats 1 I think we may go too far, and do a great deal of harm by insistence upon the mere form of apower which, in reality, does not give us the same kind of power which we should have under an Act of Parliament, not only of denying to a State a fair share of the seats, but of absolutely preventing the carrying out of the will of the other House, and the solution of the difficulty. I ask honorable senators to look at this matter from the point of view of the House of Representatives, and what they are likely to say with regard to the attitude which is taken up here. If there is no substantial reason that can be pointed out why we should give up this power - if it cannot be urged that there is some practical way in which that power can be exercised, which power we ought to preserve. for the sake of any of the States - I ask honorable senators not to persist in asserting this right, and thereby risking the carrying of this measure merely for the sake of insisting upon some empty form which is- never likely to be used in practice.
Senator MILLEN (New South Wales).I am sure that the Senate will entirely agree with the latter part of the remarks of the Vice-President of the Executive Council, to the effect that it is not desirable to insist upon something which would have no practical result. To my mind, this matter is not so much one as to the rights but as to the duty of the Senate, and I was rather surprised to hear the honorable and learned senator suggest that the rights of the States as States would better be looked after in the House of Representatives than in the
Senate. If there is going to be any attempt unfairly to distribute seats, under the Constitution, it is here rather than in the House of Representatives that that matter would be looked after, and it may be for that very reason that the Senate should retain in its hands the power to express an opinion or a veto if necessary on any proposed subdivision that may be suggested by the Commissioner. Honorable senators must not lose sight of the peculiarly special purpose for which the Senate has been brought into existence - that is, the preservation of State rights and State interests. I do not know that a State can be more vitally affected in its interests than in the proper distribution of its area into electorates for the purpose of returning members of the House of Representatives. I was rather surprised to find how little the Vice-President of the Executive Council really knows about election matters, concerning which I credited him with knowing “so much. He has shown us that he really does not know the meaning of gerrymandering. Notwithstanding that there is a provision in the Constitution that requires approximately equal electorates, gerrymander* ing can be done. It is quite possible to have electorates containing an equal number of electors and yet have gerrymandering. The whole science of gerrymandering is not so much to arrange unequal electorates, but so to arrange them as to have an absolute number of electors belonging to one party in each electorate. Take a district where there are 20,000 electors, 5,500 belonging to one party, and 4,500 to another. If, in dividing this district into two electorates, the line was taken north and south there would, perhaps, be a proportionate number of electors belonging to each party in each electorate, but if the line were run east and west, one party might be able to capture both seats. That is the science of gerrymandering. I am surprised and shocked to find that Senator’ O’Connor, who, I thought, knew so much of these things, really knows so little. Something has been said about the wonderful unanimity which the Legislative Assembly of New South Wales exhibited in reference to the proposed redistribution scheme prepared by an expert. It would be rather wonderful if that unanimity had not existed, because I venture to say that when the Commissioner was engaged upon his work every member of the House was able to put before him his view as to how the division should take place. I did it myself !
– There is the tame power under this measure. Yet every member in New South Wales was pleased with the division. .
– Why should they not have been pleased when they had had the opportunity of instilling into the mind of the Commissioner how the boundaries of the electorates should be defined ?
– If the Commissioner pleased all of them, what more does the honorable senator want ?
– It might be possible to have a scheme of distribution that suited all the sitting members, but which was grossly unfair to the State concerned. We have had instances given us by Senator Playford as to how some candidates managed things in South Australia. Suppose it were possible for one of those candidates who unsuccessfully opposed Senator Pulsford -to get into Parliament. Can an)’ one doubt that he would endeavour to arrange a subdivision of that State in a manner so satisfactory to himself as to secure his future return, although the arrangement might be wholly unsatisfactory from the point of view of the State as a whole? I do not say that there ‘is any probability of this kind of thing happening in the Commonwealth ; but it is because the Senate is the guardian of the rights of the States and of their interests that I think it should have an opportunity of voting in regard to any proposed plan of distribution. The Vice - President of the Executive Council has urged that there will be no finality arrived at if the two Houses disagreed with regard to the plan submitted by the Commissioner. But he overlooked the fact that when speaking a little earlier he had said that we could send a message at any time, and with regaid to any subject, to the House of Representatives, and that even if we had not the power of legislating upon the matter, if we knew that the other House was taking some action of which we did not approve, it would be competent for us to send down a resolution expressing our opinion on the subject. Surely if we could do that, and the message could be received, as Senator O’Connor suggested that it would be - if without having the statutory right to review the commissioner’s report we could do it - there is no reason why we 1 should not exercise that right under this measure. I trust that the arguments which I have used, and which other honorable senators have addressed to the committee, will have the effect of causing us to decide to retain in our hands the power which, I think, very properly belongs to us.
– I should hardly have thought that this question was an arguable one, because from my point of view, I cannot conceive that honorable senators are justified in giving up the power which by means of the amendment of another place they are asked to surrender. I would ask the Vice-President of the Executive Council whether the House of Representatives have the right to request us to give up this power ? We have already shown by our discussions, which I presume have been read elsewhere, that we think that this is a power from which we have no right to part, and which we hold in trust on behalf of the people of our various States. In spite of that, however, the House of Representatives say to us - “ We insist, as far as we can, that you shall give up this power.” I take it that we have no right to be asked to do anything of the kind. We must adhere to the clause in question, and must point out to the House of Representatives, as my honorable and learned friend Senator Symon, and my honorable friend Senator Millen have done, that it would be a most unwise betrayal of our trust to do anything of the kind. The vicePresident of the Executive Council has put the matter very eloquently and persuasively from his point of view, and if a constitutional right were not at stake, I think I should, for the sake of the passage of the Bill, be inclined to agree with him. But in his second speech he appears to me to have pushed his argument almost to an absurdity. In one sentence he tells us that the matter is a very grave one, and may end in wrecking the Bill. I cannot agree with him as to that. In the next sentence he tells us that it is hardly likely that the Senate will ever give effect to the power that we are asked to resign. I quite agree with Senator O’Connor that perhaps not once in twenty times should we exercise this power, but the time may come when, in the interest of sound and honest Government., we shall have to interfere. What with trusts and combines, the world is getting near to the border line between right and wrong, and it is impossible to say that there will not be something bordering on corruption committed with regard to Commonwealth elections, either in respect to members or in some way of which we do not know now. How foolish the Senate would look if, at such a time, it were found that in 1902 we had given up absolutely all control in an important matter of this kind. I could understand what Senator O’Connor contends if we were handing over to the Commissioner absolutely the fixing of the boundaries, and the House of Representatives was to have no control whatever. But to say that the scheme of the Commissioner is to be laid before one House of the Parliament only is to my mind placing the Senate in a position that we could not occupy with any regard to our dignity and to the powers committed to us. I trust that we shall not give way on the matter.
SenatorFRASER (Victoria). - I cannot conceive. why the House of Representatives should insist upon what it has proposed in this matter. It is an unreasonable position. They are trying to press something upon the Senate that they have no right to press upon us. They seem to assume that we are not going to do what is right in the future. Apparently they are taking up the position that the passage of a measure affecting the distribution of seats would be a mere matter of form in the Senate, .and that the chances are 100 to 1 that we should have no objection to offer to it. But that is no reason whatever why we should waive our rights for all time. Nobody knows what will happen in the future, and we ought not to take away from the Senate rights that the Constitution of the Commonwealth has given to it. W e might as well talk of giving up powers that are conferred, upon us by other sections of the Constitution Act. We should only interfere with a Distribution of Seats Bill if there had been gerrymandering. No one expects that there will be any gerrymandering, but it is quite possible after all. All things are possible in a wicked world. Another consideration is that if we waive our rights we encourage the very act we wish to prevent.
– Haul down the flag !
SenatorFRASER. - If we haul down the flag it will be trampled under foot ; keep it flying, and, of course, it will be respected. There is no reason why we should haul down our flag. The other House has taken up a very extraordinary position. I believe that if the Government will put the matter fairly before the House of Representatives they will see the justification for what the Senate insists upon.
– I agree with those who think that we must maintain the privileges of the Senate. There seems to be a decided impression that the other House is the predominant factor in the legislation of this country, and this is an opportunity upon which we are justified in showing that we intend to maintain our rights. Once we consent to this sort of thing, there is no saying where it will end. If the other House had wanted to show some consideration for the Senate, they might have agreed with us as to the plumping provision, and then we might have tried to meet them. If they give in as to plumping, some of us may possibly adopt a different attitude in regard to this matter.
Question - That the disagreement of the committee to the amendment be not insisted on - put. The committee divided.
AYES: 9
NOES: 13
Majority … … 4
AYES
NOES
Question so resolved in the negative.
Clause 24 (Proclamation of divisions).
That the disagreement of the committee to the amendment omitting the words “ either House of Parliament “ and inserting the words “ the House of Representatives “ be insisted on.
Motion agreed to.
That the d isagreement of the committee to the amendment adding the words “in accordance with the requirements of any such resolution “ be not insisted on.
It appears to me that if both Houses are to have a say in the matter, it is very much better that they should be able to pass resolutions stating their reasons, in order that there may be some method of coming to an agreement, and arriving at finality.
Senator Sir JOSIAH SYMON (South Australia). - I wish only to be quite clear about what is proposed. I understand that my honorable and learned friend moves now that we do not insist upon our disagreement with the amendment in the second portion of the clause, and if that motion is agreed to, the effect would be to leave in the clause the words “ in accordance with the requirements of any such resolution.” I think there is some force in what Senator O’Connor has said, although the practical difficulty which he has pointed out is not one which I think is likely to arise.
Motion, by leave, withdrawn.
Motion (by Senator O’Connor) agreed to-
That the disagreement of the committee to the amendment adding thewords “in accordance with the requirements of any such resolution “ be insisted on.
Clause 98a (State members not entitled to be nominated).
That the disagreement of the committee to the amendment be not insisted on.
Senator Sir JOSIAH SYMON (South Australia). - Prom some points of view I entirely approve of this restriction, and from other points of view I do not. I have no sympathy with the members of States Parliaments who have made a great complaint upon the subject, but I do think that perhaps the interests of the constituencies might be better served by men who have had or who at the time have political experience. On that ground, such a restriction may not be desirable, but for the sake of getting the Bill through, we might very well agree to this amendment.
Senator WALKER (New South Wales). - I must take this opportunity of saying that I am altogether averse to this clause. I shall bow to the decision of the committee, but I desire to place upon record the fact that, in my opinion, the electors should have the right to choose any person they please. It is going back in legislation for us to try to erect a ring fence around ourselves, and if a division be called for upon the motion, I shall be prepared to vote against it.
– I rise to say that I quite feel with Senator Si’mon that there is a good deal to be said in favour of this clause, but I also feel that there is much to be said against it. In my opinion, the reasons against it outweigh those in favour of it, and I think that we ought to allow what is likely to be the wish of those who sent us here to rule our judgment in the matter. I believe they would like us to eliminate the clause, and I propose, therefore, to vote for its elimination.
– I strongly disapprove of this clause limiting the right of the electors to select whatever representative they please. Those who are supporting the clause are actuated by consideration for themselves rather than for the electors. Why should we restrict the right of . the electors to select any candidate who chooses to stand? Why should not any person, whether a member of a State Parliament, a civil servant, or a member of a shire council, be allowed to stand foi- election to the Federal Parliament?
– The honorable senator would allow the under-secretary of a great department to become a candidate in opposition to his chief.
Senator STANIFORTH SMITH.Certainly. Because a man happens to be a civil servant he should not have his rights as a citizen taken away from him. The matter is one which should be left to the electors. If a candidate is a member of a State Parliament, and the electors are opposed to the principle of a member of a State Parliament standing for election to the Federal Parliament, it will be open to. them to record their votes against him. Why should we say to the electors that if certain individuals desire to stand for election to the Federal Parliament, we shall not allow them to vote for them. Those who are responsible for this disqualification and restriction have been actuated only by fear. They do not desire that State - members should compete with them for their position as members of the Federal Parliament. That, in my opinion, is an unworthy and a humiliating position for a member of the Federal Parliament to take up. Why should we object to State members standing against us at a federal election ‘I We have, or should have, a better grasp of federal politics than they have ; we should know better than they do the exigencies and requirements of the Commonwealth, and they will be possessed of no privilege that we do not possess. But by enacting this clause we place them in a position distinctly inferior to our own. In the first place, we shall be able to travel to all parts of our electorate free, while in some States, at an)’ rate, they will be in the position of having to pay, as any other opponent would have to do. Why should we place State members in a position distinctly inferior to our own, and compel them to pay a large sum in travelling expenses which we are not called upon to bear? It has been urged as a reason why the clause should be passed that some State Parliaments have enacted a provision which prevents federal members from contesting State elections. That is not a reason : it may be a motive. Because any State Parliament has taken a small-minded view, and enacted that a federal member shall not stand for a seat therein, that is no reason why we should adopt their tactics. Because they do wrong, that is no reason why we should do wrong. It is just as absurd for us to object to a State member standing against a federal member as it would be for State members to object to shire or municipal councillors standing against them. I think it can be said that so far all our legislation has been broad, liberal, and national in character. We are now asked to enact a provision which we admit is not in the interests of the people, and which we know is in the interests of ourselves. No one will get up and say that the clause is put in for the benefit of the electors. I think we must recognise that the members of the other House have made up their mind not to allow State members to contest- any federal seats with them. In the Senate we have decided on two occasions that State members should be able to compete for senatorial seats. There is. no reason why the wish of each House should not be carried out in this clause. Therefore I move -
That the amendment be amended by the omission of the words, “ senator or as a.”
If that amendment is carried, then we shall not be a party with another place to re- !stricting the rights of the electors to nominate or vote for whomsoever thev please. So far as the Senate is concerned, I should be sorry to see the Electoral Bill i contain an unworthy and humiliating clause winch restricted the rights of the electors for our own benefit.
– I hope that the committee will not accede to the proposition of Senator Smith, because in principle it has no justification whatever. If it is right that this restriction should apply to the House of Representatives, it is right that it should apply to the Seriate. If it should not apply to the Senate it should not apply to the other House. We cannot separate the Parliament into two Houses when we are legislating on a principle. The Houses must come to a conclusion if the Bill is to become law, and that result can only be attained by one side or the other giving way.
– This is a compromise.
– It is a compromise which bears on its face a violation of principle. Although some honorable senators who take an opposite view to that which I do may be conceding something, they are making the concession in the interests of all the legislation which is involved in the Bill. For that reason, I hope it will be seen that the distinction pointed out by Senator Smith cannot be drawn. It would be a very bad piece of workmanship to endeavour to arrive at a compromise between the Houses by applying one principle to the Senate and another principle to the other House.
– (Tasmania). - I cannot support the proposition of Senator Smith, but I can certainly congratulate him on the very clear and forcible way in which he put his arguments against the motion of Senator O’Connor. If that motion is carried the clause will be a blot on our legislation, and in time to come it will not redound to the credit of the Senate. If it should ever be asked how the clause originated in the brain of a statesman, surely the answer will be that he was thinking solely of his own interest. Can it be contended for a moment that he was thinking of the interests of the. electors ? The very object of the clause is to take away their freedom of action and choice - to prevent the State Parliament from being a training ground for the Federal Parliament, and not to give to the Commonwealth that liberal legislation which every democrat and liberal ought to desire. I shall be very much surprised to see some of my ultra-democratic and labour friends voting for the motion. In this Parliament we need the most able and experienced men whom we can get. Any senator or member of the other House will be able the better to do his duty if he has for three or six years held a seat in a State Parliament. When a State member, by his principles, his policy, and his administration, has inspired confidence, and his services in the Federal Parliament are desired by the electors, they will be confronted with this provision, and he cannot stand unless he gives up his seat. If I had been a member of the State Parliament at the time when the federal elections were held, I should have retained my seat, and submitted myself to the federal electors. Scores of the members of this Parliament did the very thing which they say that their successors in the State Parliaments shall not be allowed to do. I cannot give way on a principle which is against every elector of the Commonwealth, and in favour of all the members of the Federal Parliament who may be opposed by State members.
– lara sorry to have to disagree with Senator Dobson. It is plain to everybody why the Constitution Act permitted State members to stand at the first federal elections. There would have been a great dearth of candidates had it been otherwise provided. The services of experienced men were required in the first Federal Parliament. I can quite conceive of State members, who are more closely allied with the voters, intriguing all the time to unseat the federal members. I do not think that we are restricting the choice of the voters by compelling all persons to start from scratch. We shall give an undue advantage to the State member if he is allowed in a little hole and corner way to intrigue against the federal member. If a federal member is doing his duty with great credit to himself and with advantage to his constituents, why should a State member be afforded an opportunity to intrigue against him, and perhaps ultimately to defeat him ? We place no disability upon electors in compelling State members to start fair.
Senator MATHESON (Western Australia). - As one of Senator Dobson’s “democratic friends,” I. wish to explain why I shall not vote with him on the present occasion. I entirely sympathize with his sentiments and those of Senator Smith, and on previous occasions I spoke strongly on the subject. I believe that this is a most illiberal clause, and that the electors are the people we ought to consider, and not the men, whoever they may happen to be, who occupy seats in the Senate or in the House of Representatives, or in a State House of Parliament. I arn strongly of that opinion ; but we have to face facts. A large majority of honorable members in the other place are strongly of opinion that a restriction should be placed upon free competition for seats in the Federal Parliament. I think they are wrong, but the majority in the other place is a large one, and this is one of the points upon which that majority feels very strongly. What will happen if we insist upon the desire of the majority of the Senate ? We shall run a very great chance of jeopardizing this Bill. There can be no question that we shall endanger the fate of the measure if we insist, because the other place feels strongly about it, and, in addition to that, there is another amendment in the Bill, made by the House of Representatives, which involves a question of principle upon which I hope the Senate will insist, for the sake of the principle. In this clause there is no principle involved ; it is merely a matter of justice to the electors, and if we cannot carry what we believe to be justice to the electors, sooner than lose this measure, which is very democratic and desirable in other respects, I hope we shall give in. I hope that other members of the Senate, who voted with me in favour of free-trade in candidature, will see their way to change their views, or, at any rate, their votes in respect to this matter, on account of the considerations I have put forward. I am sure that it is wise to give in to the other House upon this small matter, when the majority against us is so large.
Senator WALKER (New South Wales). - I must admit that I have much sympathy with Senator Smith in this matter. If we accept his amendment, it may be that in time the members of another place will change their opinions, feeling somewhat ashamed of their action, and will act on the lines that the Senate desires. One strong argument in favour of allowing members of States Parliaments to be candidates for the Senate is that in the States Houses the electorates are comparatively small, but in a case where a whole State is a constituency, a large amount of money is required to travel all over it. I am a’ free-trader in candidature, as well as inother things.
Amendment of the amendment negatived.
Question - That the disagreement of the committee to the amendment be not insisted on - put. The committee divided.
AYES: 10
NOES: 9
Majority … … 1
AYES
NOES
Question so resolved in the affirmative.
Clause 151 (How votes to be, marked in Senate elections).
That the disagreement of the committee to the amendment be insisted on.
Motion agreed to.
Clause 174 (Expenses allowed).
That the disagreement of the committee to the amendment be not insisted on.
Motion agreed to.
Disagreement to amendments in forms N and Q insisted on.
Disagreement to amendment in form R not insisted on.
Clause 146 (Ballot paper to be handed to electors).
That the committee agree to the. consequential amendment made by the House of Representatives.
Motion agreed to.
Clause 182 (Licensed premises not to be used for election purposes).
Chat the disagreement of the committee to the amendment be not insisted on.
Motion agreed to.
Clause 211 (Power to make rules of court).
That the committee agree to the consequential amendments made by the House of Representatives.
Motion agreed to.
Resolutions reported; report adopted.
That so much Of the standing orders be suspended as would prevent the Electoral Bill being returned to the House of Representatives with a Message requesting that House to reconsider the Bill inrespect of those amendments on which the Senate insists, and to which the Senate requests the concurrence of the House of Representatives.
Question resolved in the affirmative.
page 16101
– I move -
That the Senate at its rising adjourn until Thursday next.
I have made very careful inquiry from my colleagues as to the date to which it will be right for the Senate to adjourn. I do not think it is possible to allow honorable senators to separate for longer than the period covered by my motion.
– Say Wednesday week.
– I cannot say that because the House of Representatives has got through the Budget debate, and has passed the first item of the Estimates. I understand from my right honorable colleague, the Treasurer, that there seems to be such a disposition to complete the work of the session that there is every probability of the whole of the work being finished, and the Appropriation Bill being before us by Thursday next. That may or may not be the case, but it seems to me that at. this stage of the session we should not run any risk of keeping both Houses waiting here for two or three days in order that we may finish the work of the session. There will be some work for us to do here on Thursday, even if the Appropriation Bill is not before us. I propose to ask leave to give notice which will enable me to move on Thursday the motion, in connexion with the capital sites, which is being discussed in the other House. There is also a small measure to be dealt with, fixing the payment of allowances to members of the House of Representatives and of the Senate, and there is also a ‘short measure investing State Courts with federal jurisdiction for the purpose of actions against the Commonwealth. These matters will all have to be discussed and decided before we deal with the Appropriation Bill. . I believe, from what I have heard from the Treasurer, that we shall have the Appropriation Bill before us on Thursday, or if not, on Friday. In the meantime there will be plenty of work for us to do, and there is a possibility even of our finishing the session at the end of next week.
– I hope my honorable and learned friend will not press Iris motion requiring the Senate to re-assemble on Thursday next. If there were any reasonable certainty that the whole of the business of the session could be brought to a close by the Senate sitting on Thursday and Friday, I should be one of the first to say that we ought, at all inconvenience, and at all hazards I was going to say, come here even for a day for the purpose of getting through with the work. But I fear there is not the slightest possibility of that consummation being brought about. My honorable and learned friend has pointed out that we have yet to consider the Bill providing for Certain allowances to members of the Federal Parliament, and there is the proposed Bill, which we have not yet seen . here, conferring federal jurisdiction on State courts in regard to the trial of certain claims against the Commonwealth. We do not know what scope that Bill may take. There is also the question of the federal capital sites, which we know is fertile of debate. Then it must be remembered, that in connexion with the Appropriation Bill, we have not yet dealt with the Estimates for last year. Of course, the money has all been spent, but we cannot regard the bringing up of the Estimates and the laying of them upon the table of the Senate as merely formal. They may contain matters which may give rise to considerable debate. Then we have to consider the whole of the Estimates for the current year, and it is a little too much to expect that we can get through the whole on Thursday and Friday next. It must not be forgotten either that the Estimates have not yet been passed by the other House, and tHe Defence estimates will certainly take some considerable time to debate. They involve matter which ought to be thoroughly debated. It will be debated in the Senate and probably in the other House, and it may involve questions under consideration in London at the Imperial Conference, particulars of which we have not yet received. I mention these matters, not with amy view of delaying the progress of business, but in order to point out that it is a little hard to bring us back from the other States for two days when there can be no certainty of our concluding the business. I therefore ask my honorable and learned friend to yield to what would be a very great convenience to many honorable senators, and propose the adjournment of the Senate until Wednesday week. The honorable and learned. senator will understand that in moving an amendment on the motion I have no. desire to take the conduct of business out af his hands, and I shall be willing to withdraw the amendment if Senator O’Connor is prepared to move it himself. I move -
That the words “Thursday next” be omitted with a view to insert in lieu thereof the words, “Wednesday, 8th October.”
– I do not desire that honorable senators shall, be brought back on. Thursday in next week, when there is no possibility of our finishing the business. I therefore ask Senator O’Connor to consider seriously whether he cannot accept the amendment proposed by Senator Symon.
– I trust that Senator O’Connor will agree to the adjournment until Wednesday week. If I felt certain that we could finish the work next week, I should come back most cheerfully. There is no certainty of that, and if Senator O’Connor’s motion is carried we shall be brought back here for the pur-‘ pose of doing a little work on Thursday and Friday of next .week, and then we shall have to travel an extra 1,000 miles to comeback in the following week to finish the business, whereas if we meet on Wednesday week we could finish the business in thethree days. Under the circumstances, I think the leader of the Senate might give way to the convenience of honorable sena- tors.
– I think it is straining a point to suggest that the business could be completed in three days in the week after next, when ‘ it is admitted that it could not be completed in two days during next week. In my ‘ opinion, there is business before us which will occupy more than three days, and I think we should agree to meet on Thursday next.
– Why not Tuesday next?
Senator MATHESON. I have no objection to that. We have yet to deal with the question of the capital sites, and there is plenty of business before us. I’ support the meeting of the Senate next week.
– I hope that upon this occasion the Vice-President of the Executive Council will accept the suggestion of the leader of the Opposition. If Senator O’Connor’s proposal is carried it will mean that we shall have possibly a very small House on Thursday and Friday next, and whatever is done will not. receive the same attention as it would receive if we assembled on the proper day for beginning the work of the week. If it is right that we should meet next week we might just as well meet on Tuesday, and certainly not at the fag end of the week when those who come here will be concerned about the arrangements for their departure at the week end. I hope Senator O’Connor will recognise the force of the argument that it is possible that honorable members in another place will not have completed all the matters which have yet to be dealt with in time for us to take up the business.
-! am sorry that I cannot congratulate honorable senators from South Australia and Now South Wales upon their continual exhibitions of selfishness and their want of consideration for members coming from the other States. I cannot go home every week, as senators Symon and Playford can do, and’ I think those honorable senators should be willing to extend some little consideration to others who are not so fortunately situated as themselves. I find that they are not willing to forego a single visit to Adelaide to enable those of us who come from Queensland to get away a little earlier. This is an exhibition of selfishness which does not commend itself to me. The leader of the Opposition, in support of his motion, submitted reasons which might very well have been advanced for our meeting on Thursday next. He recounted a number of Bills with which we have yet to deal, and ho said he hod no doubt there would be a good deal of discussion upon them. If that is the case, why should we not meet on Thursday and get those Bills out of hand ? Wo can then start upon the Tuesday in the following week .to deal with the Estimates, and finish the business of the session at the end of that week. We who come from Queensland, as well as honorable senators from South Australia, have our own affairs to. attend to, and they are of much more consequence to us, perhaps, than are their affairs to them. I cannot take a race to Queensland and earn £1,000, as some honorable senators can do. Because my interests are a great deal smaller than theirs, they are of so much more consequence to mo, and I can so much the less afford the time that I am 4jj2 detained here. I hope that Senator O’Connor will not consent to the amendment. I ‘ am informed by members of the other House that the Appropriation Bill will be here next week - on Thursday, at any rate. I am also told that there is to be very little discussion on the Estimates of any department) except that of Defence. In the last few weeks of the session, we ought to show some desire to get on with the public business. I can see very plainly that if theamendment is carried, the session, instead of being ended next week, will bo prolonged, another week, probably a fortnight. I trust’ that Senator O’Connor will insist upon theSenate meeting on Thursday next.
– If themotion is pressed I shall’ support theGovernment’, but I would join with others, in urging Senator O’Connor not to ask the - Senate to meet until next Tuesday week. It appears to me that the business cun be disposed of in four days. If Senator O’Connor would consent to ask the Senate to meet on that date, I think there is a strong probability that we should be able to get through all the business in that week, but I do not think we should if we were to meet on the Wednesday. If I judge the feeling of the majority of honorable senators aright, I believe that their wish is toadjourn until the week after next.
– I was going to make the same suggestion- - that the Senate should adjourn until Tuesday week, and. sit daily until Friday.
– I sympathize with Senator Stewart, who has been kept away from his farm in the north, of Queensland for sixteen months, and whose crops are not so advanced as they should be. I believe that there is no prospect of this Parliament going into recess for at least a month. If the Estimates are to be properly examined in anotherplace, it will occupy at least a fortnight. If we are to pay any attention to public, opinion regarding the proposal of Major.General Hutton to establish the military, forces on a defensive and offensive basis - the Estimates of the . Defence department must be discussed- at some length. Surely the Estimates of the department for Home Affairs, in which Senator Matheson takes such an absorbing interest, are likely to engage hi3 critical attention for at least three days, especially when we rememberthat he took a whole day to discuss one item in connexion with the GovernorGeneral’s establishment in Sydney. If the representatives of the Government would, allow us to consider private business, such as my motion about theGovernor-General, Senator Stewart’s motion about the meetings in Ireland, and Senator Pearce’s motion about a national monopoly of tobacco manufacture, I would not mind coming back here on Tuesday, because I feel certain that there will be no other business to deal with. Some consideration ought to be shown in this instance for the senators from South Australia add New South Wales. It is the invariable practice of the latter to return to their homes every week, and to bring them back for half a day on Thursday and half a day on Friday when it is not possible for us to finish our business is not to show them that consideration which Senator Stewart is anxious should be shown to him.
Senator O’CONNOR (In reply).If I were in a position to assure honorable senators that the Appropriation Bill will be here on Thursday, I should think it my duty to stand by my motion, and to throw upon the Senate the responsibility of fixing any later day of meeting. But I am in such a position that I cannot speak positively. I only hope that the Bill will be here by that time: As there seems to be such a’ very general desire among honorable senators to sit here a little longer, I can see that it would be useless for rue to take any other course than to endeavour to fall in to some extent with their view. I cannot con senttoanadjournmentuntilWednesdayweek. I am willing to consent to an adjournment until, Tuesday week. I hope that by that date the Appropriation Bill will be here, and, if it is, I see no reason why we should not finish the work of the session during -that week. I hope to have the consent of honorable senators on both sides to sit late, in order to accomplish that end. Under the circumstances, I have no other course open to me than to request Senator Symon to be good enough to withdraw his amendment, and to ask the Senate to allow me to substitute the words “Tuesday, 7th October,” for the words “Thursday next,” in my motion.
Amendment, by leave, withdrawn.
Original question amended accordingly, and resolved in the affirmative.
Sonataadjourned at 8.58p. m.
Cite as: Australia, Senate, Debates, 25 September 1902, viewed 22 October 2017, <http://historichansard.net/senate/1902/19020925_senate_1_12/>.