1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
Senator Sir WILLIAM ZEAL presented a petition from the Melbourne Chamber of Commerce, praying the Senate to repeal sub-section (1) of section 16 of the Post and Telegraph Act.
Petition received and read.
asked the Postmaster-General, upon notice -
How many prosecutions have been instituted tinder the authority of the Customs Act in each of the States since the establishment of the present Customs Tariff?
– The answer to the honorable and learned senator’s question is as follows : -
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow -
asked the PostmasterGeneral, upon notice -
– The answers to the honorable and learned senator’s questions are as follow : -
asked the PostmasterGeneral, upon notice -
Will Ministers consider the desirability of introducing, when time permits, a Federal Marriage Act, so as to secure uniformity throughout the Commonwealth, and do away with the anomalies now existing in some of the State laws ?
– The answer to the honorable senator’s question is as follows : -
The propriety of introducing such a measure when time permits will be considered, but Ministers do not think that an opportunity will be afforded during the present session.
Ordered (on motion by Senator Styles for Senator Fraser) -
That a return be prepared and laid upon the table of the Senate showing the arrivals and departures from this State during the past two years.
In Committee (Consideration resumed from 26th June, vide page 1490) :
Clause 2 -
There shall be paid out of the Consolidated Revenue Fund, which is hereby appropriated accordingly, to every grower of sugar-cane or beet within the Commonwealth, in the production of which sugar-cane or beet white labour only as been employed after the twenty-eighth day of February, One thousand nine hundred and two, a bonus, at the rates provided by this Act, on all such sugar-cane or beet delivered for manufacture after the commencement of this Act and before the first day of January, One thousand 1 nine hundred and seven.
Upon which Senator Lt.-Col. Neild had moved by way of amendment -
That the f following words be added : - “ Provided also that the said bonus shall not be paid in respect of any sugar-cane grown or produced by or with the labour of females.”
– I am in strong sympathy with the mover of this amendment. If we are to give a bonus for the production of sugar by means of white labour, we .should at least encourage the employment of men, and not of women and children, in such unhealthy places. I was greatly surprised last week to find that my esteemed friend, Senator Pearce, opposed such an amendment. To make any comparison between women engaged in the cane-fields and women employed under the Public Service Act, seems to me to be very wide of the mark.
– Do not women work in the wheat-fields of South Australia.
– We are not asked to give a bonus to encourage the growth of wheat, but to encourage the production of sugar by white labour ; and we are at least justified in providing that such bonuses shall not be paid for sugar produced by the labour of women. It must be a matter of very great concern to the Commonwealth of Australia, that its women and children - especially its women - shall not be encouraged to work in the canefields.
– Children of 21 !
– I suggested to Senator Neild that he should omit all the words after “females,” and he consented to do so. So that we are dealing only with the employment of women in the cane-fields. Surely we ought to preserve, as far as possible, the health and stamina of the mothers of our race. I hope that there is no honorable senator who would give countenance to the .labour of women in such places. We have heard much about the unhealthy conditions under which labour is employed in the cane-fields.
– Who told the honorable senator that 1
– We have heard a good deal about it in this chamber. I should infinitely prefer that coloured labour should be employed to do this work than that white women should be forced into the cane-fields in order to save the sugar industry. It would be far better that we should have no such industry than that we should preserve it at the cost of the health and stamina of our women. But we are giving a most liberal bonus, far in excess of the actual requirements, to encourage people to grow sugar with white labour, and if we permit women to be employed it will be a very great reflection on the Senate. If the large bonus which we are giving will not encourage white men to go upon the fields, we ought at least to say that women shall not be so employed.
– We have heard a good deal about the employment of women and children in the canefields of Queensland, and Senator Neild’s amendment has been moved to prevent that alleged evil. Under certain conditions, I admit that it would be an evil if it prevailed. My honorable friend, Senator Charleston, has strongly and zealously laboured to support the argument that women should be prohibited from engaging in this “ unhealthy occupation.” Has he given any proof that it is unhealthy ? Not one tittle of proof has he given. Senator Neild stated that women and children are employed in the work. I endeavoured to obtain from him some information or proof as to where such employment has existed. Some of my colleagues in the representation of Queensland also asked for proof, but we asked in vain. Not a particle of evidence has been adduced. Before honorable senators stand up in this Chamber and libel the State which I have the honour to represent: - because I regard these statements as libels - they should at least be prepared to bring forward some proof to justify the statement which goes forth to the country and to the world, that women and children in Queensland are degraded and debased by their employment in the cultivation of sugar by persons who desire to obtain this bonus. I take strong exception to Senator Neild’s statement. Let us see how the case stands. I do not yield to any man in Australia - though this is a big thing to say - in regard to my knowledge of the cultivation and production of sugar ; nor do I yield to any man as to my knowledge of every cane-field in my State. I say that it is a libel on the fair fame of Queensland to assert that, in order that the bonus may be obtained, the sugar industry is carried on by means of the labour of women and children. I wish it to be distinctly understood that I am by no means in favour of the employment of women and young children in any occupation merely for the sake of gain. I am more particularly opposed to the employment of children of tender years in injurious occupations. But where is the proof that women and children are engaged in this work? The statements of Senator Neild are very strong, and certainly require some substantial testimony to support them. He said, as reported in Hansard, page 1079-
We are now engaged in that experiment.
That is in regard to the production of sugar by white labour -
But I repeat that. as regards the employment of white women by the rapacious husbands and fathers, and the employment of young children, there is no word of condemnation that can be offered in opposition to such a state of affairs, which is not worthy of a man who attempts to represent the people.
The assertion that women and children are employed in the industry merely for the purpose of gain was pursued to a considerable extent. If that statement were true Senator Neild’s condemnation would be merited, and I would join him in it strongly. He went on to say -
I am saying nothing under the shelter of privilege. I published the same statements with my name attached in the morning press of Sydney when I came back from North Queensland. It is notorious that there are persons engaged in the sugar industry who are debasing their womenfolk and destroying the health of their young children by placing them at labour which the average white man will not tackle.
I distinctly call that statement into question. I know of no system of farming that is more simple than the cultivation of sugar-cane. To tell this Chamber and the country, as Senator Neild did, that no white man will tackle the work, is most misleading. Where is the proof ? I know that Senator Charleston is imbued with a spirit of generosity’ andof sympathy for women and children when he supports Senator Neild, but as he does so, it is proper to ask him for the proof of the statements which he supports.
-Can the honorable senator disprove them ?
– We call upon those who make these charges to prove them. It is not for me to present the opposite case ; it is for honorable senators who believe in these charges to make out a case for themselves. I say again that these statements are libels under which I am not going to allow my State to lie. If honorable senators cannot prove the charges let them stop their nonsense. Senator Neild says further -
The advantage they obtain from this sweated labour is supplemented by a bonus.
Let us see how the case stands so far as we can get at the facts. Queensland is divided into four districts for the purpose of paying the bonus and giving a fair equivalent to the growers of sugar in accordance with climatic conditions. In which of these districts are women and children engaged ?
– The honorable senator may ask for proof until a blue moon, and he will not get it.
– I have here a return showing the number of white growers in each of the four districts, together with the acreage under cultivation, and the rebate paid. The return was supplied by the Customs Department on the- 14th of May of this year. No. 1 district is in the far north of Queensland. It is alleged to be the most unhealthy part of the State, and it would be interesting to know what information Senator Charleston has with regard to the number of white growers of sugar in that district. The district includes Cairns, Mossman, Port Douglas, and other localities in -which sugar is produced, and I find that there are 37 growers who have registered under the rebate provisions of the Excise Tariff Act. In that number there is not much scope for any considerable number of women and children to be engaged - assuming that it is true that women and children are engaged in the canefields, a statement which I by no means admit. I would like honorable senators who say that that is a very unhealthy district to visit that part of the country, and they will find that the allegation is unfounded. Let us take No. 2, the- Mackay district. Is that the district in which women and children are engaged in work which is alleged to be so unhealthy that white men will not tackle it? I ask honorable senators who defend this amendment to give us some information on the point which will guide us in our deliberations. Five hundred and nineteen persons registered under the rebate provisions of the Act of last year, and the area cultivated by that number was 12,333 acres, whilst the amount earned in the shape of rebate was £16,345. If that be the district to which reference is made, let honorable senators inform us that we may investigate the statement. The Mackay district is a very old district in which sugar has been produced for the last 30 or 40 years. I ask Senator Charleston to look at the death rate for that district as given in the census returns, and I venture to say that excluding the coloured races he will find that it is extremely low.
– The male adult death rate of the kanaka is three times as high as that of the white race, including men, women, and children.
– Let us go now to the Bundaberg district, which is not in the tropics at all. I had the honour of representing Bundaberg for some years. It was my first home when I came to the country, and I have kept in close touch with the district for the last nineteen years. I find that in that district 617 persons registered as intending to cultivate sugar by means of white labour. They have registered an area of 17,814 acres of land; but last year, I am sorry to say, the crop in the Bundaberg district was almost a complete failure, and these growers only earned £2,973 in the shape of rebate. There have been numbers of white men cultivating sugar in that district for many years, and I ask is that the district to which my honorable friends allude, and in which women are debased and degraded by being engaged in the cane-fields? Really, of all hollow shams of proposals or amendments this is certainly the most hollow. It is a mere bubble, such as a boy might blow from a pipe. Then I come to No. 4 district, including the districts of Logan, Albert, Nerang, part of West Moreton and East Moreton, where sugar has been grown for many years. I venture to say that there is no part of Australia which is more healthy than this district ; and there 349 persons registered as cultivating their farms and plantations by means of white labour. There, as in some of the other districts, the crop was a total failure, and as the result of that failure, which I very much regret, only £916 was earned by the growers in the way of rebate last year. There is a district in the far North of Queensland . called Dungeness, where sugar is produced. I should like Senator Charleston to say whether that is the district in which women and children are being engaged is this very unhealthy occupation ? If he says that it is, I shall be able to give him the number of white persons actually engaged in the growing of sugar there. Is it at Geraldton, which is one of the most moist parts of Northern Queensland, and is in No. 1 district, or is it at Cairns? Allow me to tell Senator Charleston that at Dungeness there are only seventeen growers registered, in Geraldton only three, in Cairns, which is a very important district, only three, and at Port Douglas only fourteen. Do not honorable senators think that it is time we passed some legislation of a substantial character, and gave up fighting shadows ?
– The honorable senator is very hot with the poor shadow.
– There is not much wonder that we should get hot when we have to deal with politicians who waste their time and the time of other honorable senators in bringing forward mere shams and hollow mockeries. I should not be faithful to. those whom I am privileged to represent in this Senate, if I did not resent the strictures passed on the fair fame of my own State, and if I allowed it to go forth to the world that in order to earn this bonus the producers of sugar in Queensland send their young children and their women into the canefields, and debase and degrade them I should deserve censure. I have in many parts of the old country seen women engaged in different branches of agriculture. I arn sure the same thing obtains in Australia, and women are engaged in the cultivation of various kinds of crops, but I should be sorry to think that the Australian people generally, the Queenslanders included, would debase and degrade their women, and deprive their young children of the time necessary for their physical and mental development and of their characters, upon which the future welfare of the Commonwealth so largely depends. I repel these attacks upon the people of my own State, and I call upon those who make these allegations to produce some testimony that women and children have been engaged in the cultivation of sugar with a view to earning the rebate.
– Senator Glassey is justified in saying that we ought not to be asked to pass a motion of this character in the absence of any definite and well-sustained proof of ‘the necessity for it. I think that should have been oneof the first steps taken by the mover of the amendment. At the same time, I must say that Senator Glassey has undertaken a very tough task if he wishes to persuade members, of the Senate that the cane-fields of Northern Queensland are healthy and desirable places, for the employment of women.
– I have not said so.
– Nearly everything the honorable senator said tended in that direction. He told us that the death rate of Northern Queensland was very low, and that that was a proof of the healthiness of the climate. Every one who lives in the more southern States of Australia is continually coming in contact with wrecks of humanity from the extremely hot districts of North Queensland, and no one, even if he talked himself black in the face for a month, could persuade me that the hot steaming cane-fields of North Queensland are suitable places for white women to work in. I do not believe that for a moment.
– Does the honorable senator believe that they do work there ?
– I think it lies wholly with Senator Neild to show that his amendment is called for by abuses that can be proved. In the absence of proof of the existence of these abuses I feel that Queenslanders have some reason for complaint. The amendment implies that it is brought forward to remedy existing abuses. But I cannot see that they exist, and they certainly have not been proved to my satisfaction. If it could be shown that the women of Queensland were being used, or were likely to be driven into the canefields, for this purpose, the amendment would be desirable, but, in the absence of proof that anything of the kind is being done, I do not think it is necessary.
Senator CHARLESTON (South Australia). - If any notice whatever is to be taken of the warm speech by Senator Glassey, it would lead people to suppose that Queensland is one of the most healthy spots on the face of the earth. If the country is so very healthy that white men can work there without any discomfort, why was the kanaka introduced 1 If it is so healthywhy should nOt that labour be done away with, without our having to compensate the grower of sugar for dispensing with it ? If the growers are making no sacrifice, and the country* is so healthy that white men can work there and enjoy the best of health, we should not be called upon to pay this heavy bonus. I am not the mover of this amendment.
– The honorable senator is its step-father.
– Yes, because the mover is not here. I listened to the very able speech made by Senator Neild, in which he stated that it had come under his own notice, when visiting North Queensland, that women were being employed in the cane-fields, and I think I was justified in saying that I was ready to support him in preventing any bonus being paid on Sugar produced by the labour of white women. If it be true, as Senator Glassey would lead us to believe, that there are no women employed in the cane-fields, a provision of this sort will still prevent such a thing being done with a hope of securing extra remuneration in the shape of a bonus. If we do not carry this amendment, there is a possibility of women being employed and working at a cheaper rate than men in the cane-fields, whilst the canegrower will be assisted by the bonus. I have not visited Queensland, but I am basing my arguments on the remarks made by Senator Neild, who has been in that State. T have listened attentively to Senator Glassey, and I am not aware that he has denied that women are employed in the cane-fields of Queensland. He very wisely threw the onus of proof on the mover of the amendment. I presume that no honorable senator knows Queensland better than does Senator Glassey. He is familiar with the districts which he has named, and if he has never seen women employed in the canefields of that State, and believes that they are not so employed, he would be justified in saying so. I am inclined to infer from the honorable senator’s silence that he knows that women are employed in the canefields in at least some parts of Queensland. But even assuming that they are not so employed, why should we not pass this amendment, which will discourage the employment of women in that occupation ? I should be able to appeal with confidence to honorable senators of the labour party, who arrogate to themselves the right of protecting women and child-labour, to support this amendment, so that every discouragement may be given to the employment of women in the cane-fields. Unless Senator Glassey is able to disprove the assertion made by Senator Neild that women are so employed-
– I gave the statement a most emphatic denial.
– The honorable senator should repeat his assertion, in order to strengthen his opposition to what is, at least, a humane amendment.
– In entering upon this crusade against the employment of women in the cane-fields, Senator Charleston arid Senator Neild have apparently neglected two most important matters that are necessary to make good their case. They ought to have proved, in the first place, that women are employed largely in the cane-fields, and, secondly, it devolved upon them to prove in addition that the employment of women in that way is more deleterious to their health than are the many other occupations in which women are engaged. They have not done so. Senator Charleston, apparently depends entirely upon the assertions of Senator Neild, and takes no responsibility. He says, “ Senator Neild said so and so, and I am working upon his statements.” Where did Senator Neild obtain his information 1 I think I can inform the Committee of the way in which he was primed. I happened to accompany him during a portion of his journey to Northern Queensland, and I am prepared to say that on the up trip he did not visit a single cane-field. On the down trip I believe he went ashore at Townsville, where he was interviewed ‘ by certain -gentlemen representing the black-labour interest, and was primed with information. I am almost certain that he did not see a canefield on his way down the coast. He depended for his information entirely upon people who are opposed to the white-labour proposal.
– He gave us a most interesting article on the cane-fields.
– I think that the honorable senator drew very largely upon his vivid imagination in connexion with that article. Let us come to the facts. Is it true that any very great number of women are employed in the cane-fields of
Queensland. Senator Glassey has said that they are not so employed to any great extent, and that assertion has been repeated by Senator Dawson. I am free to admit, however, that I have heard that a few women were at one time employed in the cane-fields of the Mackay district, and I imagine that some honorable senators will be rather astonished to learn that the rebate which theFederal Government has paid has been the means of affecting the emancipation of these women, so far as their work in the canefields is concerned. There were a number of people in the Mackay district with young families who refused, for certain reasons which I need not elaborate before the Committee, to have any kanakas about their premises. They were so loyal to the principle of a white Australia that they declined to employ them. The wives and children of these men assisted them occasionally in the cane-fields, but the payment of the rebate liberated them from the necessity to do so. When they received the rebate they said - “ We can employ white men to do the work which no doubt has hitherto been done to some extent by our wives and families.” Women and children were probably employed to a very small extent in the canefields, and it is likely that they will be so employed in the future. I do not know whether they will or not, but I certainly see no objection to their employment in that way. If we object to women working in the cane-fields, we must prohibit their employment in a number of other occupations. If I happened to be a woman, and might choose whether I would be a cook in a stuffy kitchen in a big city, or work in the cane-fields, I should sooner follow the latter occupation. Then, again, how does the employment of women in steam laundries compare with their employment in doing such work as they are in the habit of being called upon to perform in the canefields? I do not know whether Senator Charleston has ever seen a cane-field.
– He said that Senator Neild had.
– Senator Neild knows nothing about the cane-fields. I have seen white men and white women as well as black men and black women working in the cane-fields, and I freely assert that there are dozens of occupations in Melbourne in which women are employed by the thousand that are very much more unhealthy. In the cane-fields they work in the pure air of heaven, although the sun may be hot. We hear a great deal about the unhealthiness of Northern Queensland, but I should like to hear what a Northern Queenslander would have to say in regard to the climate of Melbourne if he were brought down here in the middle of winter. If I were not compelled to remain here as a representative of the people of Queensland I should take train to that State within the next 24 hours. That indicates my verdict in regard to the climate ofMel- bourne. In Queensland we have a warm climate, but the people are acclimatized. What have we in Melbourne? We have cold, and, what is a great deal worse, the nasty, foul-stinking atmosphere which is produced by the existence of hundreds of factories. If an honorable senator goes out to Clifton Hill and looks down on the city, what does he see ? A city of houses 1 Nothing of the kind. He sees nothing but a black blotch. Yet there are hundreds and thousands of people living in that black blotch, and thousands of women employed in small factories badly ventilated, and filled with a poisonous atmosphere.
– That is not correct.
– There are 10,000 kitchens in Melbourne which are much more deadly, so far as working in them is concerned, than is any cane-field in . Northern Queensland. One can hardly go into a kitchen, even in the biggest house, that is fit for a woman to work in. They are small, nasty places, without any proper ventilation, and having everything wrong about them.
– The honorable senator has only seen theworst of them.
– Of course this is not palatable to those who live in “ marvellous Melbourne,” but I must state the truth, even at the risk of making assertions which may not prove very acceptable to the people who reside here. Go into any warehouse and what do you find ? You can see the dust floating in the atmosphere. The whole place is full of a certain dust driven in from the streets by the winds, and of other dust which is produced by the various articles of commerce stored in it. Go into any one of them at night, after the gas is lit, and try it. The atmosphere is then so foul that it is not fit for human beings to live in. Look at the pool- wretched anaemic women behind the counters, and then ask whether their occupation is healthy. If you go to Northern Queensland you find that the women have not the rosy cheeks seen in Melbourne - and,’ of course, I do not allege for a moment that the women of this city buy their complexions from the chemists - nor are they so buxom as their sisters here, but their vitality is as great.
– It must be a perfect paradise.
– It is not a perfect paradise, but it is just as good as Melbourne is.
– It is a wonder that the white men of Melbourne do not rush up there to work.
– If they knew it as well as I do they would not remain here. If I had to choose between Melbourne and Queensland, I certainly should fix my habitation in the State from which I come. I suppose that Senator Neild and Senator Charleston are actuated by the most philanthropic motives in bringing forward this amendment.
– Altruistic motives.
– Perhaps so; but they are entirely mistaken. The women did not work in large numbers in the canefields prior to the payment of the rebate, and very few of them will do so after the payment of the bonus. Even if they did work in the cane-fields, I fail to see that such work could be regarded as unhealthy. I have seen women following cultivators in orchards, and it is one of the finest occupations that could be found for a woman. I would much rather see my daughters follow a cultivator in the open air in the orchard, than go behind a counter and sell ribbons and laces, or engage in millinery and laundry work and other indoor occupations. It seems to me that a false idea is springing up in regard to women. The finest women of whom we have any knowledge in the history of the world worked very largely in the open air ; they were indeed “mothers of nations.”. We never can be a brave community if our women are cooped- up in factories, shops, and warehouses, and are segregated from the pure fresh air of Heaven. I trust that the Committee will not stultify itself by assenting to this ridiculous proposition.
Senator MACFARLANE (Tasmania).I was rather surprised, a little time ago, when some honorable senators asked for information about the inferior climate of Northern Queensland, and said that it ought to be shown it was was not a fit climate for women and children to work in. I did not expect that so much ignorance on the subject would be shown by honorable senators, because last session it was clearly proved that the climate of North Queensland was deleterious to health. Dr. Maxwell and many others showed that it was in their reports. I have not been able to procure these documents in the few minutes which have been at my disposal. But I have obtained the report of a conference of representatives of agricultural, pastoral, and horticultural societies which was held in Bundaberg in June, 1901. It is described in these terms -
An agricultural conference, organized by the Department of Agriculture, similar to the conferences held at Gatton in 1S97, at Rockhampton in 189S,- at Mackay in 1899, and at Warwick in 1900, was held at the Queen’s Theatre, Bundaberg, on the 11th, 12th, 13th, and 14th June, 1901, and was attended by representatives from practically all the leading agricultural, horticultural, and pastoral societies of the State.
The president said in his address -
Climatic conditions count for much in labour, whether performed by women or men, and our northern climate is a peculiarly trying one.
Mr. E. Swayne said
With regard to the temperature question, it is not the temperature readings only that you must take; for it is the humidity that makes the difference. On the Herbert River, they have already had 130 inches of rain this year. Work has had to be done during that time, and I do not think anybody could work in such a climate without doing himself an injury.
The friends of humanity in the Chamber are boasting that that climate would not be deleterious to female labour. I am surprised at their statements. They talk of men working for women ; so they ought to do. Why a cane-grower should try to obtain a bonus by employing female labour in a climatewhich is deleterious to health I cannot understand. I. shall vote for the amendment.
Senator WALKER (New South Wales).I move -
That the amendment be amended by the omission of the word “ females,” with a view to insert, in lieu thereof the words “children under the age of fourteen years.”
I can confirm largely what Senator Glassey has said with regard to cane-growing in.
Queensland. I have been on a number of the plantations, and I have not seen women working there.
– I have.
– I take it that the object of the proviso is to prevent the possibility of that danger arising. I cannot go so far as Senator Neild has gone, who, unfortunately, is unable to be here today. I can quite see that the feeling of the Committee is adverse to his amendment. At the same time I think that there is a great deal to be said in favour of forbidding children under the age of fourteen years, bo3’s or girls, from working in the canefields of the far north.
– Is not a boy to do a bit of weeding ?
– No one knows better than the Postmaster- General that in the cane-fields there are certain dangers which do not exist in open fields such as we are accustomed to. Sugar-cane grows to a great height, and when young persons are amongst the canes they are practically hidden from sight.
– The same thing would apply to corn-fields.
– Not to such an extent. I do not oppose my experience to my honorable friend’s, but I appeal to honorable senators generally to say in a spirit of kindliness that a bonus ought not to be given to any cane-growers who employ young children in the fields. Without this condition the bonus will offer an inducement to some parents to employ their children on the cane-fields, while there are many other more suitable occupations in which they could be employed.
Senator GLASSEY (Queensland). - I think I heard Senator Macfarlane say that he had seen women working in the canefields of Queensland.
– Yes, in Bundaberg, near Cairns.
– The contradiction which I gave to the allegations made by Senator Neild should carry some little weight. Does the honorable senator say that he has seen any number of women engaged in the cane-fields at Cairns, when only three persons are registered there as producing sugar-cane by white labour.
– I did not say any number.
– On what plantation did the honorable senator see women engaged in this way t
– I do not. remember the name of the plantation, but it occurred in the month of August, five years ago.
– In the whole of the northern district, including Port Douglas, Mossman, Dungeness, Geraldton, and other places, only 37 growers are registered, as producing cane by white labour. Yet the statement . goes forth to the country that the bonus is to be earned by white men who employ their wives and children in the production of sugar-cane.
– If they do not do it, why object to the amendment ?
– The amendment has been moved with the view of preventing the continuation of an evil, but it rests with the honorable senators who support it to prove that that evil does exist. I have endeavoured to combat their allegations. I contend that it is a libel and a slander on the fair fame of my State for any honorable senator to assert that women and young children are employed in the production of sugar-cane, and that they will be so employed in order to earn this bonus. I hope that Senator Walker will not press his amendment. I do not wish the idea to go forth that’ I, in any way, encourage the employment of young children who ought to be at school. What will be the effect of the amendment if it is carried? When a boy of fourteen or thirteen or twelve years of age is idle on a holiday, or during the harvest, he may be engaged now at weeding or chipping. Does Senator Walker contend that a man should not permit his son. to lift a stack of cane, or to do a bit of weeding, or any other work, either before or after school hours, or on a Saturday, or during his holidays ? He knows that during the Christmas holidays, very often, harvesting is in full operation. Would he prevent a boy from being employed during his holidays in assisting his father to gather in the harvest?
– I would suggest the insertion of the word “ continuously.”
– Whatever we do we ought to be practical:
– When a boy works for half-an-hour in the cane-field it is not continuous labour ; he is only amusing himself.
– If a boy has a holiday for a week or a month is he not to be permitted to assist his father on the farm 1 The late James Garfield, a man of eminence and ability, was working on a farm when he was eight years of age.
-: - “Was he working in a cane-field ?
– I draw no distinction between a cane-field and any other farm. If a boy can assist in the cultivation of maize he can also assist in the cultivation of sugar-cane. I know of no more simple or healthy occupation than the cultivation of sugar-cane in the greater portion of Queensland. My advice to the honorable senator is to withdraw his amendment, and not to attempt to lay down a rule which it would be utterly impossible to carry out without an army of inspectors, not only to visit every, farm, but to visit every home and ask the father and mother whether any of their boys were working in the cane-field and endeavouring to add to the family income, which unfortunately in many instances, children are obliged to do when their parents are engaged in the cultivation of crops of any kind.
– What is the name of the eminent man to whom the honorable senator has referred t
– James Garfield.
– I thought it was Thomas Glassey.
– No, I am not so eminent as Senator Zeal, who for so many years occupied a dignified and high position in this State. There is eminence for you ! Whether there was ability also is another question. I hope that Senator Charleston, now that he has obtained further information, will not allow it to go forth that we need to enact a law to prevent evils which do not exist, never have existed, and, so far as I know anything of the sturdy manhood and ability of the people of my State, are not likely to exist.
Senator WALKER (New South Wales). - In reply to Senator Glassey I desire to say that he has overlooked the real danger. No person objects to a boy amusing himself on a holiday in the cane-fields. The word labour, as here employed, means doing certain work for so much a week. I offer strong objection to young people working in the cane-fields as a matter of livelihood.
Senator CHARLESTON (South Australia). - I am exceedingly grateful to
Senator Stewart for corroborating the statements of Senator “Neild. He has clearly shown us, notwithstanding the eloquent remarks of Senator Glassey, that women have been employed in Queensland, and that by giving a rebate which we are now turning into a bonus, the growers of sugar have been enabled to emancipate their women and employ men. In the interests of such canegrowers as have emancipated their women, let us agree that no bonus shall be paid on sugar grown by the aid of women. Then we shall give encouragement to that nobleconduct which has been so highly praised by Senators Stewart and Glassey. Senator Stewart’s excellent remarks have afforded the very strongest reasons why we should support Senator Neild’s amendment, and I hope that the Committee will adhere to it,, and not destroy it at the instance of Senator Walker by striking out the word- “ females “ in order to insert other wordsLast week it was decided that we should test the question on the word “females.” I therefore hope that Senator Walker will withdraw his amendment and support that of Senator Neild.
– I like neither the amendment of Senator Neild nor Senator Walker’s amendment upon it. There is very nearly the same objection to the one as to the other from the point of view that both are entirely impracticable ; because it will be impossible to obtain sufficient inspectors to look after every small farm and see that boys of fourteen are not engaged in doing a bit of weeding occasionally. ‘ We have devoted some hours to discussing the question from the point of view of the female, who we are told has been worked to death in the cane-fields, and our feelings having been excited to a high pitch upon that subject, an amendment is suddenly moved throwing the ladies overboard, and objecting to the employment of boys under fourteen. We have got nearly down to the bed-rock of absurdity, and it is a pity to waste more time over the question. I can quite understand the amendment as to women being brought forward, but every one must see that it is quite absurd to suppose that boys would be employed by planters to any considerable extent. I do not see how it would be possible to prevent their being employed upon small farms close to cottages, and indeed there would be no more danger of employing them in that way than in any other form of agricultural production. It is really cottage work. I have never seen white women employed in the cane-fields of Queensland, though I have seen them engaged in other kinds of agriculture. I have seen them working in potato-fields and upon crops of a similar kind, and . I have seen female kanakas working alongside male kanakas. There is no necessity for either of the amendments, the only effect of which would be to prevent the regulations with regard to white-grown sugar from being properly carried out.
Question - That the word “ females “ proposed to be omitted stand part of the amendment - put. The Committee divided.
Majority … … 18
Question so resolved in the negative.
Question - That the words proposed to be inserted be inserted - resolved in the negative.
Amendment, as amended, negatived.
-I move -
That the following words be added : - “ But nothing in this Act shall be held to invalidate the right of any grower to obtain the bonus for white-grown cane in respect to which notice shall have been given prior to the first day of March one thousand nine hundred and three, in pursuance of the’ New SugarRegulation of the eighth January one thousand nine hundred and three, notwithstanding that the said regulation was ultra vires.”
It is necessary to explain why I propose to add this amendment to the clause. In the Excise Tariff Bill, we provided that people by giving notice that they intended to grow cane with white labour prior to the 28th February, 1902, should obtain the advantage of a rebate.
– I only object to the form of Senator Matheson’s amendment. I think that his object can better be attained in another way.
– Perhaps the Postmaster-General will explain what he means.
– I know the object which the honorable senator has in view. It is that there may be no doubt as to the position of cane-growers under the regulation issued in December last, with regard to the bonus where white labour has been employed since the 28th February, 1903. I think the proper way in which to do what he desires will be to re-insert the words we have struck out. Senator Glassey’s amendment was to put in the words “for a period of twelve months immediately preceding the delivery thereof,” and to strike out the words “ 28th February, 1903.” The proper way would have been to insert the words suggested by Senator Glassey after “1903.” The amendment I propose to. move on recommittal is to insert after the word “employed “ the words “ after 28th day of February, 1903, or.” Honorable senators will see that Senator Glassey’s amendment simply extends the time of registration for the bonus for white-grown cane beyond the date previously fixed in the Bill. If we again insert the words “after 28th February, 1903, or,” the object of the honorable senator will be accomplished in what I venture to think is a simpler and more regular manner than by tacking an amendment to the clause. It was only through inadvertence that Senator Glassey’s amendment was allowed to pass in that form. What I propose will substitute an alternative period. There will be one period up to a fixed date, 28th February, 1903, and another alternative and intermediate period covered by the words of Senator Glassey’s amendment.
Amendment, by leave, withdrawn.
Clause, with requests, agreed to.
Clause 3. (Calculation of bonus on sugar-cane.)
Senator PULSFORD (New South Wales). - I intend toasktheCommitteetoomitclause 3, and to make a slight alteration in clause 4, because one of these clauses isobviously unnecessary. When the Excise Tariff Bill was originally introduced it only covered sugar-cane, but beet was subsequent])7 included b)’ a separate clause. All that is needed is to pay the bonus on the sugargiving contents of sugar-cane or beet. Honorable senators will see that in clause 5 that expression is used, and reference is made to “ the average sugar-giving contents of the sugar-cane or beet in any particular district.” If clause 3 is omitted, I shall propose an amendment of clause 4, omitting the words “in the case of beet,” and inserting the words “sugar-cane or” before the final word “ beet” in that clause. So that that clause would then read -
The bonus shall be at the rate of 40s. per ton on the sugar-giving contents of the sugar-cane or beet.
That will make the matter quite clear, and will remove the surplusage that at present exists.
– Senator Pulsford was good enough to inform me that he intended to direct the attention of the Committee to these two clauses. I have therefore been making inquiries as to the reason why sugar-cane is dealt with in one clause and beet in the other. The reason is that in the Excise Tariff Act a difference was made between cane and beet sugar in respect of the method by which we were to get at the sugar-giving contents. In the case of cane, the rebate was to be calculated on cane giving 10 per cent, of sugar, and in the case of beet there was to be a bonus of 40s. per ton on the sugar-giving contents.
– It is the same thing.
– It may be, but I am informed that there are good reasons for making a distinction here between cane and beet corresponding with the distinction made in the Tariff. It is no waste to devote a few extra words to keeping two subjects distinct, and preventing the possibility of mistakes arising.
Senator PULSFORD (New South Wales). - Does the honorable and learned senator intend to make a corresponding alteration in clause 5 t We have in that clause simply the words “ sugar-giving contents of cane or beet.” If a distinction is necessary in one case, it is equally necessary in the other. I have no wish to waste the time of the ‘Committee. I have called attention to what seems to me something like smut on the face of the Bill. I proposed to remove it, but if the Minister in charge of the Bill prefers to keep it, I am willing.
Clause agreed to.
Clause 4 agreed to.
Clause 5 -
It may be prescribed by regulation that the average sugar-giving contents of the sugar-cane or beet in any particular district shall, for the purposes of this Act, be taken to be the sugargiving contents of each lot of sugar-cane or beet in that district.
– I should like to ask what this clause really means. In the first place, upon reading the clause one would imagine that the average contents of the sugar-cano grown in an)’ particular district should be made up, but then the clause goes on to say “ be taken to be the sugar-giving contents of each lot of sugar-cane or beet.” As I understand it, what is intended is that a number of lots of sugar-cane in any particular district should be analyzed to find out the average sugar-giving contents, and that subsequently all the cane cut in that district should be taken to have the same sugar-giving contents, in order to save the expense and trouble pf analyzing each particular lot of cane coming to the mill. The clause does not appear to me to carry out what is intended, because I understand the expression “each -lot” to mean each and every lot. If we provided that a number of lots should be taken to get the average, and that that should subsequently be adopted as the standard for the whole district of the cane in that district I could understand it.
– This clause gives effect to what we have already been doing in the sugar districts. The Excise Tariff Act provides for a rebate of £2 per ton on cane sugar, according to the sugar-giving contents of the cane. But it was found that the yield was very much higher in some parts of the State than in others, and in order to avoid the necessity of having to test every lot of cane coming to the mill, a number of tests were made in various parts of the State, and then a scale was drawn up according to the average sugar-giving contents of the cane in each district. The sugar districts were divided into four, and the amount was ascertained fairly to be 4s. per ton in one district, 4s. 4d. in another, 4s. 8d. in a third, and 5s. in the northern district. That arrangement, I believe, has given complete satisfaction to the sugargrowers. They have recognised that, by means of these divisions, each district gets what it is fairly entitled to, based on the sugar-giving contents of the cane. We require a clause of this kind, in order to say that all the cane in a particular district shall be held to have the average sugargiving contents. We know that cane will yieldsugar in varying degrees, shading imperceptibly from the lowest to the highest. But the amounts to which I have referred represent fairly the sugar-giving contents of the cane in different districts, so as to make up an average of £2 per ton.
Senator PLAYFORD (South Australia). - I understand what the object of the clause is, but it does not carry out that object. The latter part refers to the sugargiving contents of each lot of sugar-cane or beet in the district, when it ought to refer to such lots of sugar-cane or beet in the district as may be prescribed. We should prescribe a number of lots from which the average contents should be taken. That is what the Postmaster-General admits is wanted, but here reference is made to “ each lot,” which means each and every lot.
– That is what it means.
– It would beheld to mean every lot brought to a mill in a particular district, but we do not require to analyze every lot in a district. What we require is to ascertain the sugar-giving contents of such lots as may be prescribed. Then, by regulation, we could prescribe the number of lots which shall be analyzed in order to get the average.
– I think I understand both Senator Playford and the Postmaster-General, but I submit that this clause carries out the intention of neither. Senator Playford, in my opinion, is quite right in his contention. The clause says that it may be prescribed by regulation that the average sugar - giving contents shall be taken to be the sugar-giving contents of each lot. Obviously, if words mean anything at all, that means that a single average shall be taken to be the average contents of half-a-dozen or a hundred lots. That is absurd. I understand what Senator Drake intends, and I think that his purpose would be achieved by substituting the words “ shall be ascertained from “ for the words “ be taken to be.” Then the average could be ascertained from a certain number of different varieties. That is the only way in which we could get the average, and the clause, as it stands, does not carry out the intention of the Government.
-I am quite sure that Senator Playford has not grasped the object of this clause. We have, first of all, to find out what is the average sugar-giving contents of the cane in any district. W e do that by taking samples from different parts of the district, and the Bill proposes that the contents of each lot of cane in that district shall be the average so ascertained. It simply means that when we have fixed the average sugar-giving contents of the cane in a certain district, and provided that the payment in respect of it shall be equivalent to 4s. per ton, it shall not be open for a farmer to bring a load of cane to the mill, and say, “ I will not take 4s. ; I claim that my particular lot yields more than 4s. worth per ton, and I want more.” The clause provides against such a possibility. It provides that the average sugar-giving contents of the cane grown in a district having been fixed at a certain amount-
– It does not say so.
– I think it does. At all events, that is the object with which it has been framed.
– The regulation will say so.
– The regulation at the present time recognises the average sugar-giving contents of cane in certain districts, as ascertained. If we had not such a provision as this, one man would be able to claim that his sugar contained more saccharine matter than the accepted average.
SenatorFraser. - He will do so.
– He would do so if it were not for this clause, which says, that the average having been ascertained and prescribed by regulation, each lot of cane in the district concerned is to be held to contain that quantity of sugar.
SenatorClemons. - It does not say that, although that was the intention of its framers.
– It appears to me to be clear. I rose simply to point out the obvious mistake which Senator Playford was making in imagining that each separate lot referred to was to make up the lot from which the average was to be ascertained. It is quite the other way. The average is to be ascertained from samples taken from various parts of the district, and when it has been ascertained, it is to be held to be the average of each lot brought to the mill.
Senator CLEMONS (Tasmania). - I deplore the fact that I have to point out that the Postmaster-General does not know the meaning of the word “ average.” If he objects to the amendment which I first suggested, I can point out another way of making this clause intelligible. As it stands, it is sheer nonsense. The insertion of the word “ average “ before the word “ sugar,” line 4, would make the clause intelligible.
– There is nothing about “average” in the Excise Tariff Act.
– The word “average “ appears in the clause, and if it is not repeated at the point I have indicated this provision will be nonsensical. The adoption of either of the suggestions I have made would make the clause intelligible, and I ask the Postmaster-General to accept one or the other.
– I cannot do so. In view of the fact that Senator Clemons has just discovered that the clause does not carry out the object in view, I might point Out that it appears to have been copied word for word from the Excise Tariff Act. He will see at once that in these circumstances it would be inadvisable to have any variation. The Excise Tariff Act provides that the rebate is to be at a certain rate, and that it is to be ascertained in a certain definite manner. This ‘ clause provides that for the purposes of the Act the contents of each lot of cane shall be taken to be the average which has been ascertained and prescribed by regulation. This is what the Excise Tariff Act provides -
All rebates to be allowed at the time of delivery of the cane or beet on the ascertainment in manner prescribed of the sugar-giving contents, and so that it may be prescribed that the average sugar-giving contents of the cane or beet in any particular district shall be taken to be the sugargiving contents of each lot of cane or beet in such district.
– If those words appeared in the clause, there would be no difficulty.
– We have practically the same words in this clause. The average has been ascertained from the yields for five years previous to the time when it was fixed by regulation, and all this clause provides is that the average ascertained for each particular district shall be taken to represent the sugar-giving contents of each lot of sugar-cane which is brought to the mill.
Senator CLEMONS (Tasmania). - I do not know why the Postmaster-General objects to amend the clause in the way I have suggested. I have no desire to alter its effect in any way ; I simply wish to put it in an intelligible form. The PostmasterGeneral attempts to argue that an average may be half-a-dozen different things. An average is a single number, derived, perhaps, from half-a-dozen different things ; and unless it is reduced in that way it cannot be obtained. I think the first amendment which I suggested should be accepted.
– This clause implies that the average sugar-giving contents of the cane has already been found.
– If that is the Postmaster-General’s contention, he should agree to the insertion of the word “ average “ at the point suggested. I shall move an amendment, and I should like the PostmasterGeneral to say which of the two I have indicated is the least objectionable to him.
– I am afraid that the second suggestion would not’ be a compliance with the Excise Tariff Act.
– We are not bound to comply with any Tariff Act. If we have drawn the Excise Tariff Act badly, I do not see why we should repeat the mistake. I move -
That, after the word “the,” line 4, the word “ average “ be inserted.
– I agree with Senator Clemons.
– If the honorable senator does so I do not think he can have grasped the full meaning of the clause.
– Reading the clause as a layman, it seems to me to provide that -
The average sugar-giving contents . . . shall … be the sugar-giving contents of each lot of sugar-cane or beet in that district.
Leaving out certain words in the middle of the clause we arrive at its literal meaning. It is really absurd. If the PostmasterGeneral reads the clause as I have put it before the Committee, he will not fail to arrive at the conclusion that some amendment is necessary.
Senator PLAYFORD (South Australia). - The clause would be made clearer by the insertion of the amendment, but having looked up the Excise Tariff Act, it appears to lite that it is absolutely unnecessary. We have made provision in that Act to accomplish what we want. The quotation which the Postmaster-General has read from the Excise Tariff Act is the law of the land ; under it all the necessary regulations can be made, and there is not the slightest necessity for this clause.
– The law of the land, so far as the Excise Tariff Act is concerned, would necessitate the ascertainment of the sugar-giving contents of every lot of cane that came to a mill. That is one of the difficulties which has occurred, and it has been met by ascertaining the average yield of the sugar-cane in each district. The Excise Tariff Act provides that we are to pay the rebate according to the sugar-giving contents of the cane. We now desire the authority of a statute to sa>y that the average having been ascertained and fixed for the whole of a district, it shall be held to be the sugargiving contents of each lot of cane that comes to the mill. To thrust in the word “ average “ at the point proposed, would be to undo what has already been done. We want in this provision to be able to say that, for the purposes of that payment, the sugargiving contents of the cane are the average which has been fixed by regulation for the whole of the district. We must not put in the word “ average.” There is no such word as “ average “ in the Excise Tariff Act, and if it is inserted where proposed in this clause we shall not be able to say, as we wish to do, that the average as ascertained shall be taken to represent the sugar-giving contents of the cane grown in a given district.
– What the Postmaster-General means is that this is not a clause for fixing the average at all. That is where the mistake has arisen. What the clause says is that the average fixed shall be applied to each lot of cane in the district. We ought to understand from Senator Drake how the average has been fixed.
– I desire to point out to Senator Playford that we are entitled to assume that, if the Bill is passed, the provisions in the Excise Tariff Act which are designed to provide for a rebate will be superseded. The object of this clause is not to ascertain the average : it implies that the average has already been ascertained, though by what method I am not in a position to say. The marginal note is misleading, and, perhaps, to some extent is the cause of the misconception which has arisen. From the words of the marginal note one would be inclined to infer that the clause was designed to provide for the ascertainment of the average sugar-giving contents of the cane in the district ; but it is not so. It provides for using and applying that average once it has been ascertained. It remains for the Postmaster-General to explain the method which has been adopted in ascertaining the average before applying the principle of the clause. But if the average has been ascertained, it would be of no use to put in the word “ average “ where suggested.
Senator CLEMONS (Tasmania). - I quite agree with what Senator Keating has said. The clause would read very much better and would better convey to the Committee “what was meant if it were turned topsy-turvy. If it said that the sugar-giving contents of each lot of sugar-cane or beet in a district may be prescribed by regulation to be the average sugar-giving contents, we should know exactly what was aimed at, and the only thing we should then require to know would, be how the average was to be ascertained. I would suggest to Senator Drake that he should turn the clause upside down and so produce lucidity. Sp far as I know, the Excise Tariff Act prescribes no method for ascertaining the average, and if it does I shall be glad to be informed where it does. The whole object of the Bill is to alter what we have enacted, and I seriously question whether, in Order to interpret this clause, we could refer to the Excise Tariff Act or any other Act. I would urge the Postmaster-General to give the clause a little more consideration than he has done.
– I do not think that there would beany advantage in turning the clause upside down. It very often happens with a clause that the position of a sentence can be reversed without altering the meaning, but it is not so here. Senator Clemons has not seen the matter clearly from the time when he thought that the average was to be ascertained from each of the separate lots of sugar-cane or beet in the district. If his mind had’ not been preoccupied with his own misconception he would have seen at once what I endeavoured to explain. ‘ I do not know any better word to use than the word “ascertainment because we are proposing to fix, for the purposes pf the Excise Tariff Act, the average sugargiving contents of all the cane produced in a district. We could not use the word “determination,” or the word “prescription.”
– Surely the clause does not “ ascertain “ anything 1
– The honorable and learned senator has asked me to explain how the average- was ascertained for the. different districts. The Excise Tariff Act gives power by regulation to determine the method in which the sugargiving contents of cane shall be ascertained. Dr. Maxwell supplied the yield of cane in each separate district du-ring-a period of five years, and the rebate to be paid on the average which was struck for the four districts from that data worked out at 4s., ‘ 4s. 4d., 4s. 8d., and 5s. per ton of cane. A regulation was framed whicli has, I believe, given entire satisfaction.
– Is it proposed that those averages shall stand ?
– I have not heard from any of the districts a whisper of dissatisfaction as to the payments. Either we had to take that course Or we had to fix one average for the State, which certainly would have been most unfair, seeing that the amounts vary from 4s. to os. a ton. It isperfectly clear that if we had struck an average for the State we should have given very serious dissatisfaction to the northern districts. Unless we have a provision which says that each load that comes to the mill is to be taken to yield the average which has been fixed for the district, we shall have to ascertain the sugar-giving contents of every lot of cane.
Senator PLAYFORD (South Australia). - The clause becomes more confusing the more it is discussed. With the exception of one word it is the same as the provision in the Excise Tariff Act, which reads as follows : -
All rebates to be allowed at the time of delivery of the cane or beet on the ascertainment in manner prescribed of the sugar-giving contents, and .so that it may be prescribed that the average sugar-giving contents of the cane Or beet in any particular district shall be taken to be the sugar-giving contents of each lot of cane or beet in such district.
According to the statement made by Senator Drake, the clause is not designed for the ascertainment of the average, but only for prescribing what shall be taken to be the average. The average has been ascertained in a way which is contrary to the law - from data supplied by Dr. Maxwell. The Government did not ascertain the sugargiving contents of each lot of sugar-cane or beet. The law says that the average shall be ascertained by a certain process.
– No, it says “ in manner prescribed,” which means by regulation.
– It may be prescribed by regulation that the average sugar contents of’ the sugar-cane or beet of any district shall, for the purposes of the Act, be taken to be the sugar-giving contents of each lot of sugar cane or beet. It is not right that the average should be ascertained from information which has been supplied by Dr. Maxwell or any one else. Surely it ma)’ be inferred from the wording of the marginal note that we are passing a clause which will enable the Government to take samples from each cane-field in a district, analyze their sugar-giving contents, and strike an average, and then to say that it is the average for that district. The object of the* clause is to ascertain the average, and after it is ascertained we may prescribe what the average is to be.
– It is very difficult for any one to understand what the clause _ means, and it could be made plain by the use of these words -
May be prescribed by regulation, that the average shall be ascertained of the sugar-giving contents of the sugar-cane or beet in any particular district, and such average shall for the purpose of this Act.
– The first part is not wanted, because it is in the Excise Tariff Act. We already have’ power by regulation to ascertain the average.
– What is the clause wanted for at all 1
– To fix the sugar-giving contents of each lot.
Senator . CLEMONS (Tasmania). - A farmer comes along with sugar-cane and wants to., have the value of it .ascertained and credited to him. If the clause were made to read as follows, no confusion could arise : -
It maj’ be prescribed by regulation that for the purposes of this Act the sugar contents of each lot of sugar-cane or beet in any district shall be determined on the average sugar contents of the sugar-cane or beet in that district.
Say that a farmer comes along with some sugar-cane, and that the Customs Department does not want to analyze it and ascertain the percentage of sugar, but wishes to say - “ Wearegoingtopay thebonus according to thepercentageof sugar contained in the cane grown in the district ; we are not going to make a special analysis of your lot of cane.” That, I take it, is what this clause is intended to do. With the alterations I suggest it would be simple and easy to understand.
– The honorable and learned senator has turned it upside down, and put in the word “ determined.”
– I am not particularly enamoured of the word “ determined.” If the clause were worded as follows it would be perfectly clear : -
It may be prescribed by regulation that for the purposes of this Act the sugar contents of each lot of sugar-cane or beet in any district shall be taken to be the average sugar contents of the sugar-cane in that district.
That is exactly what the PostmasterGeneral wants.
– No, it is not.
– Surely the Department wants to provide that when any farmer brings in his sugar it can be said to him right away - “ We are not going to analyze your sugar, but will pay to you a bonus in accordance with the average sugargiving contents for this district.” They want to tell the farmer that the sugargiving contents of his cane are to be taken to be the same as the sugar-giving contents of the cane grown by other farmers in the same district. In the interests of clear draftsmanship and lucidity the Minister should agree to alter the clause. If he will not do so I shall say no more. I am sick of the subject.
Amendment, by leave, withdrawn.
Clause agreed to.
Clause 6 agreed to.
All rebates of excise duty on sugar paid before the commencement of this Act shall be taken to have been paid as bonuses undsr this Act.
– I intend to vote against this clause. I wish to explain to the Committee that, though it is apparently an innocent looking clause, it is really a piece of retrospective legislation, which is intended to allow the Government to deprive certain of the States of money to which they are entitled under the Excise Tariff Act.
– The money is only held in suspense.
– We passed last year an Excise Tariff Act, which provided that the £2 per ton rebate on sugar was to be paid as a rebate. That meant that it was to be taken off the excise, and therefore was to be paid by the persons who consumed the white-grown sugar. Sir George Turner has supplied us with a paper showing the results of the operation of the Act. On the 30th April the Government had collected the sum of £163,000, which was due to the States in various proportions, but which the Treasurer of the Commonwealth did not pay to them. As time has gone on the sum of money retained, but which should have been distributed amongst the States, has increased to something like £215,000. I frankly admit that it has been proved that our legislation of last year was wrong, and that the method applied in calculating the rebate was not equitable. But at the same time it must be admitted that what we passed was an Act of the Commonwealth Parliament. That being so, the money collected is to-day the property of the States, and ought to have been paid over to them month by month under the Constitution Act. It is of no use for Senator Walker to say that the money has simply been retained. The point is that it has been retained absolutely illegally. Its retention is a theft-a deliberate theft - on the part of this Government from every one of the States concerned. I say so deliberately and after careful consideration. The Acts which this Parliament has passed should be carried out. Who are the Ministry that they should sit down on the money-bags and say - “ We do not like this or that way of dealing with the revenue, and we intend to hold back this money for twelve months, and to ask Parliament to pass a fresh Bill dealing not only with the future” - in which they are quite right - “but with the past.” The States have been counting on receiving the money due to them. The States Treasurers have been expecting it. Honorable senators seem to think that this is merely a question of a new basis of distribution of funds which have been retained. But this Bill goes far beyond anything of that kind. The effect, stated in figures, as applied to South Australia, will be that not only will she be deprived of the small sum of £1,500 which has been credited to her, but she will actually have to make good a sum of something like £4,158 which has never been credited to her, and which she has never received.In fact, we are proposing to legislate here to-day that not only shall we change the law so far as South Australia is concerned - because it is the law ; that is what honorable senators are apt to forget - but that we shall oblige that State to make good a deficiency that has occurred through the mistake of this Parliament. Is that a class of legislation which is likely to recommend the Commonwealth Parliament to the people of Australia? I say that it is not. . I do not care if I am in a minority of one, I shall endeavour to divide the Committee upon this clause, merely as a protest against retrospective legislation, and against an attempt which, unless prevented, will bring this Parliament into the gravest disrepute amongst the nations of the world. This is not a small matter. It involves a most important principle, and a principle which I intend to maintain whenever possible. We are proposing to cany retrospective legislation, simply because we have the power to do so, to the detriment of helpless States or helpless individuals. I submit no motion upon the clause, because the proper course for me to take is to divide the Committee upon it.
– I do not feel called upon to answer the honorable senator who has just sat down, for the reason that the whole subject has already been exhaustively debated. Last week Senator Downer desired to raise the point by an amendment upon clause 2. Though that amendment was in order, I thought that it was not a convenient way of raising the question. Still, as the honorable and learned senator was desirous of raising it, it was fully discussed, and I think that every honorable senator understood the question after listening to the debate.
-I did not understand it.
– I hope that every other honorable senator understood it.
– I did not understand it.
– Senator Downer’s amendment was moved for the express purpose of bringing up the question which Senator Matheson has raised. It was discussed at considerable length, and I should have thought that every honorable senator regarded the point as settled after the division which was taken. I hope that we shall not have another lengthy debate.
– This matter was discussed upon the second reading of the Bill, and also in Committee. Therefore I imagine that the Committee thoroughly understands it. It resolves itself really into two points, with only one of which the honorable senator who has signified his intention of voting against the clause has dealt. That is the point with regard to this being retrospective legislation. There are good and sufficient reasons why retrospective legislation should sometimes be passed, and from that point of view I do not grumble very much at the position taken up by the Government. But there is another point which is of far greater importance, and about which the Federal Government may hear something in the future. That is as to how this Bill affects the Constitution. The Constitution is absolutely clear and mandatory. It provides that the Government shall, at the end of every month, divide the surplus, crediting the States with the amount of money received, and debiting them with the amount which the Commonwealth has spent in matters in which they are especially interested. The balance is to be handed over to the States. If we pass this Bill, and say that what the Constitution requires shall not be done, the States will still have a perfect right to go either to the Privy Council or to our Federal High Court and ask for justice. The chances are that the States that are injured by this process will decide to test the question. Whatever we may do in the way of retrospective legislation, we should not break the Constitution. But in this case we are doing more than passing retrospective legislation; we are absolutely breaking the Constitution, and it appears to me that that aspect of the matter would be regarded as very grave if it were brought before the courts.
Question - That the clause be agreed to - put. The Committee divided.
Majority … … 5
Question so resolved in the affirmative.
Clause agreed to.
Clauses 8 and 9 agreed to.
Bill reported with requests.
Bill received from the House of Repre sentatives, and (on motion by Senator Drake) read a first time.
Senator DRAKE laid upon the table
Papers relating to the appointment of Mr. Charles Powers as Crown Solicitor.
Bill read a second time.
In Committee :
Clauses 1 to 3 agreed to.
Bill reported without amendment ; report adopted.
Debate resumed from 18th June(vide page 1 1 02), on motion by Senator Drake -
That the Bill be now read a second time.
– At the outset, I must say that I heartily concur with every word which fell from my honorable colleague, Senator Barrett, as to the unfairness of clause 9 of this Bill. If I understand it aright, Senator Playford put the view of the Government very tersely when, during the speech of the PostmasterGeneral, he interjected -
Why can we not say that the successful candidate who gets the fewest votes shall be elected for the shorter term ?
That is a very simple way of getting out of the difficulty. To that interjection Senator Drake replied -
That is exactly what we are saying in this Bill. By following the line of common sense, Senator Playford has reached the conclusion that the Government have recommended.
I notice that the speakers who followed - honorable senators who are in for three and a half years yet - all sided with the
Bill. That is merely a coincidence, no doubt, but they appear to be quite content that honorable senators who vacate their seats at the end of this year should take their chance. I was rather surprised at the remark coming from Senator Playford, and the common-sense line he laid down was readily jumped at by the Postmaster-General, followed by Senators Higgs and Millen. I would ask why the section providing that, in the event of a vacancy, the Parliament of the State in which it occurs shall appoint a member to fill it, was inserted in the Constitution?
– I think the honorable senator will find that the section says “ until Parliament otherwise provides.”
– I think not, but I am not quite sure about that. I understand that the Constitution maybe altered. There is a way to alter it which is provided for in section . 128.
– That would take some time.
– The Convention, in framing the Constitution in such a way that in such a case as has happened in the Senate, when, through the lamented death of the late Sir Frederick Sargood, Senator Reid was appointed to his place by the Parliament of the State, did so with the sole purpose of saving the Commonwealth a large expense in the matter of elections. In this case it might have cost ?10,000 or ?20,000 for an election to return one man to the Senate. The Convention showed its wisdom, as I think it did all through the consideration of the Commonwealth Bill, so far as a layman like myself is able to judge, by saying - “We do not desire to put the Commonwealth to such expense as that, and we therefore say - ‘ Let the State Parliament appoint a man to hold office until an election shall take place, whether it be for the House of Representatives or for- the Senate.’ “ Supposing the Convention had not taken into consideration the question of expense, what would have happened then? There would have been an election, and if Senator Reid had won that election he would have held the seat until the expiration of Senator Sargood’s term. There is no getting away from that position. The honorable senator could never have been placed in one of the other seats. He would have ‘held a particular position. What would happen if a dissolution were to take place next month?
That seat would become vacant, and the man who gained it at the election would hold it for three and a half years. That is the position exactly. Let us see how unfair it would be from another point of view. I give the illustration with all respect to Senator Reid.
-It is the only illustration that can be given.
– Senator Reid was appointed by the State Parliament, and presumably he has both Houses of the State Parliament at his back. He will go up for election next December in competition with others for one of the seats in the Senate, and under this Bill, if he is not the lowest of the four successful candidates, he will hold his seat for six years. We started without any of that kudos which attaches to a candidate having a State Parliament at his back.
– We had what was better - we had the electors at our backs.
– And I hope we shall have them again. One aspect of the matter which appears to have been overlooked is that the Senate as now constituted is undertaking to prescribe the terms upon which the incoming members, of the Senate shall hold their seats. After the next elections there will be nineteen new senators - not necessarily new to the Senate, but newly elected - and seventeen who have held office since the creation of the Parliament. But the Senate, led by the Government, now proposes to dictate to the incoming senators what shall be done, notwithstanding that there will be a majority of new senators after the next election.
– The dictation is being done by the 36 senators.
– Yes; but only seventeen of them will retain their seats. The Postmaster-General, in moving the second reading of this Bill, read only one section of the Constitution. He omitted to read section 13. I shall supply that omission. Section 13 provides that-
As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes-
– That has been done.
– I shall come to that point. I contend that it can be done no more by this Senate. The section continues - as nearly equal in number as practicable ; and the places - not the senators - of the senators of the first-class shall become vacant at the expiration of the third year, and the places of those of the secondclass at the expiration of the sixth year from the beginning of their term of service ; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.
The Convention determined that senators should be divided into two classes, and on the meeting of the Parliament, the Senate decided which three of the six honorable senators from each State should . belong to the first-class and which should belong to the second-class. Those in the second-class, according to the Constitution Act, are to hold office for six years, while those in the first-class, to which I have the distinction to belong, hold office for three years. To my mind, however, the Convention had in view the idea that ‘the senators placed in the first-class should be the first three on the poll for each State, and it seems to me that the Senate has failed to follow out what was really the intention of the Convention.
– It is no use crying over spilt milk.
– I am not doing so. I am simply pointing out my view of these matters. The reason why the course I have indicated should have been adopted must be obvious to those who will take the trouble to give the question a moment’s consideration. In the first place, we have to remember that there was a scramble for seats in the Senate. The Convention foresaw that money, as put by Senator Barrett, would “speak” at the first elections. It also foresaw that this Parliament would be the most democratic in the world, and that it would follow the lead set by the Legislature of the model State of South Australia by restricting election expenses. Therefore, it seems to me that it was considered by the Convention that the first three on the poll in each State should retire at the end of three years, so that, if any of them managed to scramble into the Senate by virtue of the possession of a big banking account, he would have to face the electors again at no distant date. As a matter of fact, one candidate for a seat in the Senate as a representative of Victoria spent £3,000 in printing alone. He was a very respectable man, but he did not succeed in his candidature.
– Who was that?
– I refer to the late Hon. J. A. Wallace, who published an address to the electors in every newspaper in Victoria.
– So did I, but it did not cost me one-fifth the amount mentioned by the honorable senator.
– The address published by Senator Zeal was only a short one.
– Nothing of the kind.
– It occupied only a few inches of space whilst the address published by the late Mr. Wallace covered one side of a newspaper. I do not say that he had no right to publish such an advertisement. I am only referring to what the Convention considered might occur at the first elections, although it would not be likely to take place at the second. I am pointing out that some candidates endeavoured to secure their return by paying away large sumsof money, and it seems to me that if any senator secured his seat in that way he should have to go before the electors again at the end of three years The classification which was made under section 13 of the Constitution - and to which I invite your attention, Mr. President - is unalterable during the life of the present Senate. Once having been placed in their respective classes the three senators who were the highest on the poll in each State, and the three who were lowest on the poll cannot be removed from them until a dissolution of the Senate takes place. No alteration can be made except by an amendment of the Constitution. I wish to direct your attention, Mr. President, to the fact that under section 13 the classification is to take place in respect of the “ places “ and not the occupants of the seats. Supporters of clause 9 as it now stands are in a hopeless minority. The Convention, the Australian Parliaments, and the people of Australia, the British Parliament and the Imperial Government, supported the Constitution Bill and accepted it as the Act now stands, so that honorable senators who have been placed in the first class must remain in that class until a dissolution of the Senate takes place. If Senator Reid were at the top of the poll next December he would still belong to the class to which he has been appointed by the State Parliament.
– Not at all.
– If Senator Reid is returned at the top of the poll next December, he will still belong to the class in which the late Senator Sargood was placed by the Senate when it exercised the right it possesses under the Constitution. I contend that this particular Senate can only exercise thatright once. It is true that it is a risky thing for a layman to raise a constitutional question. I recognise that fact, and I raise this point with a good deal of hesitation, because I recollect that of the nine members of the Government eight were members of the Convention. One member was President of the Convention, while another was the leader of it. We have also to remember that there are six lawyers in the Government, so that the chances are not 9 to 1, but something like 99 to 1 that I am wrong in my contention. But I submit my reading of the Constitution to the President, who is the authority to decide this matter. Before I proceed to make certain quotations showing what the lawyers have to say about thispoint, perhaps I should refresh the minds of honorable senators as to section 15 of the Constitution, which provides that -
If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided whichever first happens. At the next general election of members of the House of Representatives, or at the next election of senators, for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
When the question as to the rotation of honorable senators was before the Senate two years ago, Senator O’Connor said -
The matter is important in this sense : -
He was referring to the question that it should be settled at once - that it is necessary that the Senate shall come to a conclusion as early as possible, because, in the event of any vacancy occurring, the person who is elected- - “ elected,” not “ chosen” by a State Parliament will be returned for the remainder of the term of the senator whose seat has been vacated.
He is to be electe’d for that term. What did the Postmaster- General - another lawyer - say on that occasion ? Senator Stewart, while dealing with the question, appears to have got into a fog, and desired some information which was supplied by the PostmasterGeneral. At page 2014 of Hansard the following report of the incident appears : -
– . . Am I to understand that if a senator of the second class were to die, his successor would hold office for the period of six years?
– No, he would hold office for the balance of the term.
– That is quite right for the second class.
– That is the person elected.
– I may be like- the small boy who denned an Act of Parliament as “ a paper which means what you don’t think it means.” I know that laymen occasionally take that view of an Act of Parliament, and in the circumstances, I think, the Bill before the Senate should be re-christened. It should be called “ A Bill for an Act to suspend certain sections of the Constitution Act,” or better still, “ A Bill for an Act to deprive a Victorian senator of one of his constitutional rights if he be elected, and is fourth on the poll in 1903.” The question upon which I ask your ruling, Mr. President, is whether the title correctly describes the Bill, or whether I am right in saying that the classification having been made by the Senate, any alteration can be made before a dissolution of this Senate takes place 1
– I have been asked a question involving the interpretation of the Constitution, which, if answered, would not affect the practice of the Senate. On the 1st August, 1901, I set forth in the following words, which are to be found at pages 3375-6 of Hansard what I thought was my position - 1 am very glad he has made those remarks—
I was referring to Senator Symon, because for some considerable time past X have desired to put before the Senate what I considered to be the position which I ought to occupy in reference to giving decisions concerning the interpretation of the Constitution Act. As a matter of fact I have had a paper in my desk for a long time containing some few remarks which I should like to make as to that point. It does not seem to me that I .should from the Chair, undertake the responsibility of interpreting all the provisions of the Constitution. The Constitution itself lias provided for a tribunal, 5 k & l z the High Court, which, after argument and consideration, such as would be impossible and undesirable in this Senate, is empowered to finally determine its meaning in most of the cases which will arise. It is my duty to interpret and determine the standing orders, and to regulate the procedure of the Senate ; and, perhaps, to interpret the Constitution so far as the conduct of the business of the Senate is concerned. But the difference is great between the two cases. The Senate is the final and sole judge of the meaning of its own standing orders, whilst a law made in derogation of the provisions of the Constitution may in some cases be declared invalid at the instance of any citizen. I have a deliberative vote, and the right to vote seems to me to include the right to take part in a debate- not from the Chair, but as a senator. This right I propose to exercise when occasion requires, thus giving to the Senate the benefit of any opinion I may have formed, iu such a manner as will not place senators in the position of having to either override a ruling from the Chair or to agree to such ruling on some constitutional question of great importance and far-reaching results which they may believe to be erroneous.
That statement was not objected to, nor has it been objected to since that time. It seems to me that the question I am now asked to decide is one which the Senate ought to decide. It does not affect the conduct of the business of the Senate. The interpretation placed on the Constitution by Senator Styles may affect the validity of the Bill if it is passed, but I do not think I ought to be called upon to express an opinion on that matter. I should be very glad as a senator with a right to speak on this point to give my opinion, but that is quite a different thing from giving a ruling.
– I rise to support the second reading of the Bill. It appears to me that clause 9 is drafted in the only way in which it could be done in order to do full and proper justice. I think that when the Senate decided, as it did some time ago, that after an election for 36 senators the three senators for each State who had obtained the largest number of votes should sit for six years and the other three retire at the end of three years, it practically laid down the basis which must be embodied in this Bill. It is a right principle, because it is left absolutely to the electors to say who shall have the longer term and who shall have the shorter term.
– I cannot quite follow the reasoning of Senators Styles and Barrett in connexion with clause 9. It seems to me that no other method could’ fairly have been adopted. I hope they will not charge me with selfishness, seeing that I am in the sixth-year class. I take the view that if in December Victoria has to elect three : senators instead of four senators, the three -candidates who obtain the highest number of votes will have a six years’ term of office.
– Not necessarily ; the :Senate will decide that.
– The Senate has already decided that question.
– It would have to be decided again after a dissolution.
– I feel satisfied that it is the opinion of the majority in the Senate that the principle which was laid down in this Parliament will become the established custom in future Parliaments. If we take that precedent as established custom, and there was an election for six senators instead of four, as in the case of Victoria, then the position which Senator Styles objects to would be just the same. For instance, if he were fourth on the poll he would still have- only a three years’ term of office.
– No. I should claim a six years’ term.
– The honorable senator will admit that under the Electoral Act, if six vacancies had to be filled and he happened to be fourth on the poll, he would sit in the Senate for only three years.
– Not necessarily. We might draw lots, as they do in America.
– I cannot see any other fair method to be adopted.
– I base my contention on the Constitution alone. Never mind whether it is fair or unfair.
– I cannot read the Constitution in quite the same way as the honorable senator does. I cannot see that the Bill conflicts with the Constitution. The honorable senator, for the purpose of illustration, referred to the case of a senator who was chosen by the two Houses of the Victorian Parliament sitting together. With all due respect to Senator Reid, I think that he was not legally chosen. The Electoral Act provides that no member of a State Parliament is eligible to be nominated for election to the Senate, but the State Parliament of Victoria deliberately flew in the face of that provision and chose a member pf the Legislative Council to fill a casual vacancy. If there is any cause for friction between the
State Parliament and’ the Federal Parliament, it seems to me that the latter has a very just cause of grievance against the former for having so deliberately flouted its expressed will and intention. I cannot see that for the purpose of this discussion we should look upon the position of Senator Reid as being different from that of any other gentleman who might have been chosen in his place. In Victoria four senators have to be returned, and if we adopt the clause as it stands we shall only carry out a principle which has been laid down by the Senate. I cannot see that it will do anything unfair to any retiring senator.
– I listened with a very great deal of attention to Senator Styles, but I really did not master the point which he raised. The position appears to be plain enough as laid down in the Constitution. Two casual vacancies have occurred, one by resignation, and the other by death. When a casual vacancy occurs the Constitution provides that the Parliament of the State in which it occurs, and if it is not in session the Governor in Council, shall choose a successor. That provision has been complied with. Then comes the question of how long shall they hold office % Section 15 provides -
At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
The term for which Senator Sargood would have sat, if he had lived, would have been six years. The gentleman who has been chosen to fill his seat will sit until the next general election, and a person will then have to be chosen by the electors to hold that position for the term of three years only. Now comes the question as to which person out of the four who have to be elected is to fill the position. You may have nominations for the filling of vacancies caused by the periodical retirement of senators. You may also have nominations to fill the casual vacancy for the remainder of the original term. But see what a confusion that would occasion. The Constitution is silent about how it is to be decided, and being silent it is open to us to make due provision. Of the two courses - the one which I have indicated, and the other provided in the Bill - which is the fairer’ 1 If the decision is to be left to any body, it should be left entirely to the electors. Of course by the first method which was indicated by Senator Drake, the decision would be left to the electors; but this awkward position would arise, that certain candidates would stand for the casual vacancy which would have to be voted for separately, and certain candidates would stand for the periodical vacancies. Is it not far better to let the electors of the State know that the men who are to fill the periodical vacancies, and whose term will, therefore, be for six years, are to be those who are highest on the poll, and that the man who is fourth on the poll shall fill the casual vacancy, and sit for three years ? That will leave the whole decision of the matter with the electors. Is Senator Styles alarmed at a provision of this kind ? Are we afraid of the electors? Does he think that they will not make the best choice under the circumstances ? Does he not see that going before the electors when four candidates have to be returned is a great deal better than going before them when only three- have to be elected? If he misses being chosen as one of the three he may be chosen as the fourth, and enjoy the three years’ tenure. I hope that he will not be fourth on the poll. I sincerely trust that he will be one of the first three. But we never know how elections will turn out, and it may be, after all, that what Senator Styles is complaining about will be the very thing that will give him a seat in the Senate for three years after the next election. I fail to see the constitutional point. Indeed, there appears to me to be no constitutional point at all. The question as to who is to fill the position vacated by the death of Senator Sargood is left to be decided, and we have to provide a way in which it shall be decided. I contend that the method proposed by the Government is the intelligent and common-sense way of doing it. It leaves it to the people, who have most interest in the matter, to say who’ are the candidates in whom they have most confidence. The three in whom they have most confidence will sit for six years, and the fourth on the poll will sit for three! Where on earth a constitutional question comes in I cannot for the life of me understand. I should like to hear Senator Styles on the point again, so that we might have some chance of understanding this great constitutional question, upon which you, Mr.
President, very properly say that you do not intend to express an opinion. If we are doing something which is against the Constitution, it is not for the President to express an opinion about it. It ought to be decided by the High Court. The Judges of the High Court will be above Parliament in one sense. They will stand between the people, who have agreed to the Constitution, and Parliament, which is chosen to represent the people. It is not for u3 to settle constitutional questions ourselves. The Constitution itself provides that such questions shall be decided by the High Court, which is not amenable to Parliament in any sense whatever, and whose decisions will be absolutely final. I have much pleasure in supporting the Bill, which appears to me to offer the best solution of the difficulty that could be devised.
– I understand that the difficulty which Senator Styles raises is this : He contends that at the next general election the fourth candidate on the poll should hold the place from the date of the election to the expiration of the term. What term ?
– The term fixed.
– The term of the senator who is deceased, or who has retired ? Suppose he is a three years senator! Then the person elected to hold the place till the expiration of the term will, if the election is in November, only hold it until the 31st December. “
– The former occupant of the seat would have held it till the 31st December.
– “ Until the expiration of the term.” What term? Whose term ? If the term of the senator who has retired or is deceased be meant, that senator’s term would expire on the 31st December. If the senator elected in November is to hold a seat “until -the expiration of the term,” I ask the Minister in charge of the Bill - what term 1 It is a matter that ought to be considered. I am not expressing any opinion about it. I am simply raising the point.
– It seems to me that there is no doubt about the position. We have placed in our hands the absolute duty of deciding how the successor to the late Senator Sargood is to be elected. Senator Reid is not spoken of as a successor. If honorable senators turn to section 15 of the Constitution, they will find that it is there provided that where a State Parliament elects a person, that person is not spoken of as the successor to the former senator. The section says -
If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, shall, sitting and voting together, choose a person to hold the place until the expiration of the term or until the election of a successor.
This makes a distinction between the person who is elected by the Parliament of a State and the successor who is elected by the people. Senator Styles’ reasoning goes upon the lines that the person elected by the Parliament, and the successor chosen by the people, are the same.
– lt is the place that is continuous, not the man.
– The place is not continuous. The Constitution makes a break. It merely provides a means of filling the vacancy until the next election. Then there is a distinct break. There is no continuity whatever.
– If the honorable senator looks at section 13 he will see that the places are fixed, not the senators.
– That section deals with the position after a dissolution for the purpose of dividing up the two classes of senators. But section 15 deals with the position affected by this Bill ; and it seems to me that Senator Styles and Senator Barrett are endeavouring by their reasoning to place this restriction upon the coming election - that if a person has been chosen by the Parliament of a State to fill a gap, caused either by death or resignation, that person must be identified with the successor elected by the people ; and that they want in an Act of Parliament to say that, because a senator has been chosen by the Parliament of a State he shall be compelled, if he wishes to put up for election at all, to put up for the position of successor to the senator deceased or resigned.
– He enters the Senate under those conditions.
– No, certainly not; he enters the Senate under the conditions laid down in the Constitution. That is to say, he is to hold the place until the next election takes place. Then what is his position ? The obligation placed upon him by the State Parliament ceases at the next election, and if he wishes to re-enter the
Senate he has to re-enter under conditions laid down by this Parliament and not by the Constitution.
– We cannot override the Constitution.
– The Constitution has nothing to say about it. Our Electoral Act and this amending Bill lay down the conditions under which he shall re-enter the Senate.
– This almost converts me to the High Court idea.
– The Constitution says that a successor shall be chosen. Under what conditions ? Under whatever conditions this Senate likes to put intoan Act of Parliament. We are now asked to say in this Bill that the method which we adopted after the last general election shall be adopted in future - that the three highest on the poll shall hold their seats for six years, and the fourth on the poll shall hold the seat foi* three years. That is only asking the Senate to put into an Act of Parliament what it has already decided by resolution. We have only to apply the same principle to future elections, and to say that what under our resolution applies to three senators shall in the present case of Victoria apply to one. As to the position of the present occupants of seats, I consider that both Senator Styles and Senator Barrett are at a distinct advantage over honorable senators from other States ; because there are four vacancies for Victoria, whereas in the other States the vacancies are limited to three. This Bill in no way attempts to override the Constitution, nor does it place any disability upon, any retiring Victorian senators. In fact, it gives those senators a distinct advantage. I shall support it.
– I think that the last speaker has failed to apprehend the point particularly under discussion. We are dealing with two distinct things. Section 13 of the Constitution clearly sets forth what shall be done after the first election^ and after a dissolution of both Houses. We have decided that those senators who were highest on the poll shall sit for six years, and that the three next on the poll shall retire at the next election. Now comes an entirely different thing. The Constitution provides for this contingency. Suppose a vacancy occurred such as has been caused recently in Victoria owing to the sad death of Senator Sargood. He was in the second class, elected for a term of six years, and another vacancy was caused by the retirement of Senator Ewing, who was in the first class, and due to retire at the end of three years. It is clearly stated that if a senator should retire, or if his seat should become vacant, the Houses of the State Parliament meeting together shall select a man to fill the vacancy - but for how long ? The Constitution says “until the expiration of the term.” In the case of Senator Saunders, that would be until the end of this year. His term will then expire, because he has been sent to the Senate to fill the place of Senator Ewing, whose term would have expired at the end of this year. Supposing Senator Ewing’s term did not expire at the end of this year, Senator Saunders would have held the place according to the Constitution “ until the election of a successor as hereinafter provided.” Supposing there were an election of senators prior to the expiration of the term for which the retiring senator was elected, the seat would become vacant and might be filled at the election by any candidate. The Constitution provides -
At the next general election of members of the House of Representatives, or at the next election of senators for the Senate, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
That is the case of Senator Sargood, and his successor would be elected to hold the place from the date of his election, because Senator Reid might not be elected, or might decline to stand, and the person chosen as the successor of Senator Sargood would be chosen to hold the place from the date of his election until the expiration of the term which would have been filled by Senator Sargood, had he lived. It is to me perfectly clear that whoever is sent to the Senate to fill the place of Senator Sargood will only hold the seat for the term for which the late senator would have held it, had he lived.
– I think that a very good point has been raised in connexion with clause 9, but it has not been made as clear as it might be. First of all, I may say that the point arises in connexion with an election where a senator is to be elected by the voters of the State to fill up a gap that exists - that is to say, to fill a term that has not expired at the date of the election, but which goes on for three years further - while at the same time an election of senators is being held to fill vacancies for a term of six years each. That is where the trouble arises. Clause 9 of the Bill says that the first three elected candidates shall have the six years’ term, and the fourth candidate shall have the three years’ term. It seems to me that the difficulty we are in in getting the matter adjusted arises from the operation of clause 5, which says -
The election of senators to fill the periodical vacancies and of senators to fill the casual vacancies shall be conducted as one election of senators.
I wish Senator Styles to attend, because I am about to show how his difficulty can be got over - if it is desirable to get over it, and of that I am not convinced.
– We are all agreed as to how it can be got over ; but the question is whether it should be got over.
– I do not quite mean what Senator Pearce suggests. It ought to be got over according to v the Constitution, and not according to our desires. As I read it, the Constitution clearly anticipated that where at the same time elections were being held for senators for the six years’ term, and for senators for the three years’ term, there should be separate nomination. To take a case, a man, Jones, would say - “ I intend to stand for the six years’ period, and not for the three years’ period or stop-gap vacancy,” and his nomination paper would indicate that. Though the voting would be carried on at the same time, in the same room, for senators standing for both terms, different ballot-papers would be used.
– Where does the honorable senator read that in the Constitution ?
– I do not read that in the Constitution, but the Constitution leaves matters in such a condition that we may fairly infer that that was the intention. I am not satisfied that it is right, but it is certainly a deduction which any impartial person may draw from the Constitution.
– That is all I claim for it.
– The Constitution says in section 15 -
At the next general election of members of the House of Representatives, or at the next election of senators for the Senate, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
It was obviously contemplated, it seems to me, by the Constitution that the successor to be elected should be a person who had nominated for the particular vacancy, and should not be one of a bunch of candidates.
– Does not the honorable senator see that it might be possible, even if we had separate elections, for one candidate to be nominated for both terms.
– The honorable senator raises a very good point ; but I have not studied the Act sufficiently to express an opinion as to whether it would be legal for a candidate to do that. It is possible that a man might be nominated for both terms.
– If the Constitution made specific provision there would be no difficulty.
– I see what the honorable and learned senator means. There being no specific provision; we are left to inference. But it seems to me that the natural inference is that a candidate should nominate for the particular vacancy and not for the general issue, if I may so express myself. That is to say we should not have ten candidates standing for four general seats with the understanding that the lowest term of office should be reserved for the fourth candidate on the poll. I do not think that was intended by the Constitution. Of course this is a question upon which Parliament has most ample powers and, in the absence of any restriction, it is possible for those holding the opposite view to say that the matter is open for doubt, and that this Bill is the best means of meeting the difficulty. Individually, I think that perhaps the Bill is wrong. The Bill emanates from the Government, and it is notorious that the Government in these matters is usually wrong.
– I shouldlike first of all to understand the point taken by the President, as perhaps that needs some elucidation. It refers to section 15 of the Constitution, but I cannot see exactly where the difficulty occurs. That section it seems to me provides very clearly that, in the case of a casual vacancy, the person chosen to fill the vacancy fills it until the expiration of the term or until the election of a successor
– But when a successor is elected, what happens?
-From the day of election until the expiration of the term.
– What term ?
– The expiration of the term as used in the previous section - from the date of election till the end of the sixyear period.
– The vacancy might be that of a senator holding office for three years.
– The 15th section says that in the case of a casual vacancy, the Parliament of the State sitting together shall choose a person to hold the place -
Until the expiration of the term, or until the election of a successor, as hereinafter provided, whichever first happens.
That is perfectly clear. The position is held until the election. Then the next subsection says -
At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election -
Not from the 31st December- - - until the expiration of the term. “The expiration of the term” is exactly the same expression as is used in the previous section, in which it clearly means until the expiration of the six-year period, because it says “ until the expiration of the terra, or until the next election, whichever first happens.” It appears to me that it is perfectly clear that we cannot give a different meaning to the expression “expiration of the term “ from that given to the same expression in the previous section, and in that section the meaning of the expression is clear, because it is put as an alternative term to the election of a successor. The way I should read the provision, therefore, is that a person chosen to fill a vacancy fills it until the election, unless, of course, the term expires before the election, andthe person who is elected to fill the vacancy holds the position from the date of election, probably some date in November, until the expiration of the term. However, this is a matter upon which there may be a difference of opinion, and I have given, what appears to me to be, the reading of the Constitution.
– The honorable and learned senator will see that under section 7 of the Constitution it is provided ‘ that “ the senators shall be chosen for a term of 6 years.”
– That is subject to the other provisions of the Constitution. I see that the word “ term “ is used in that section. I have not referred to section 13, which provides, for the purposes of that section, that -
The term of service of a senator shall be taken to begin from the 1st day of January following his election, because that meaning of the term of service is limited for the purposes of that section only. I followed Senator Styles with great interest, and endeavoured to see clearly the point he was making. The honorable senator twits me with not having referred to section 13’ of the Constitution when I was speaking. There are a great many sections to which I do not refer, and the reason I referred to section 15 was that it was in the interpretation of section 15 that the difficulty arose which apparently made this Bill necessary, whereas I do not consider that any difficulty arises in connexion with section 13. The honorable senator relies upon section 13 for an argument.
– I rely upon both.
– I understand that Senator Styles relies upon section 13 as well as section 15 to establish his case that the present Bill is contrary to the Constitution.
– That is right.
– The honorable senator lays great stress in quoting section 13 upon the expression “the places of the senators.” I understand his contention to be that a person who is occupying one of those places in some way remains specially identified with that place.
– If he is re-elected.
– I am inclined to think not. I think the honorable senator’s difficulty has arisen from a confusion of the provisions dealing with the places of senators and the provisions dealing with candidates for the position of senators. In my opinion, section 13 has nothing to do with the personality of the individual occupying a position as a senator. The Constitution knows no difference between one candidate for a seat in the Senate and another ; it cares not whether the candidate is Smith, Brown, or Jones. I think it takes no notice of whether he has been a senator or not, or whether he has been a Member of Parliament or not. An election comes along, and puts an end, in that respect, to all that has gone before. It matters not whether the person elected to fill a vacancy has been in the Senate or not ; he cannot rely on the fact that he has previously been in the Senate.
– But if he is elected to one of the places that have become vacant by effluxion of time 1
– The Constitution takes no notice of whether the person elected has or has not been a senator before. There are four vacancies to be filled, and all that the Constitution requires is that they shall be filled by persons who have been properly nominated, and who are eligible to sit in the Senate. Consequently it is not competent for a .person who is elected to a seat in the Senate to claim that he is the person ‘who held that seat before, and therefore that he has been the continuous occupier of it ?
– Not competent to claim that he is in the first class, although appointed by the Senate to that class.
– Senators are divided into the first and second classes for the purpose of deciding after the first election, and any election after a dissolution, which of the six honorable senators representing a’ State shall retire ab the end of the three years’ term. I do not think that, after the election has taken place, a senator can say : “ During the last Parliament I was in the first class, and therefore I should now be in the first class.”
– It is not the “last Parliament “ so far as the Senate is concerned. This is a continuous House.
– If it will please the honorable senator better, I will state the position in this way : That a senator who has been elected cannot say that previous to the election he was in the first class or the second class, as the case may be, and that, therefore, he still remains in- that class. In these periodical elections, the question whether a man holds office for three or six years does not arise except in a case where we are filling up a vacancy that has occurred, in respect of the six years period. The only question with which this Bill deals is that of deciding upon the person who is to occupy this position. It matters not in the slightest degree whether or not that person has been a member of Parliament before. I do not think there is anything in the difficulty which has been suggested by Senator Matheson. He admits that the Constitution is silent upon the point, and, because of that fact, he says that we may infer such and such a thing. But the fact that the Constitution is silent, leaves it open to us to legislate in this way. The necessity for such legislation has arisen from the fact that, if we held separate elections, a great deal of trouble and inconvenience would be involved, and an elector would find it more difficult to exercise his rights in such a way that he would be able to obtain the full value of his franchise. I am very glad that the principle of the Bill has met with the approval of nearly every honorable senator. Those who admit that we have power to do what we propose under the Constitution, and who see that the difficulty in connexion with a casual vacancy has to be met. unite in the opinion that the scheme of the Bill is the best which up to the present time has been devised.
Question - That the Bill be now read a second time -put. The Senate divided.
Question so resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 6 agreed to.
Clause 7 (The writ).
SenatorPULSFORD (New South Wales). -I desire to know whether there is any danger of a conflict between schedule A, to which the clause refers, and the schedule in the Electoral Act. The point was raised on the second reading of the Bill, and it is desirable that it should be made clear.
– The draftsman tells me that both schedules will be necessary. The writ in schedule A of the Bill is drawn up to meet the case of a mixed election - that is, an election to fill periodical and casual vacancies, while the writ in the Electoral Act applies only to periodical elections. The explanation is the same in regard to the writ in schedule B.
Clause agreed to.
Clause 8 agreed to.
Clause 9 -
– I move-
That paragraph (1) be omitted.
I move the omission of this sub-clause, because I think it is not in accordance with the Constitution Act.
– That was exploded in. the Senate.
– I do not think it was. We have had no authoritative decision except that of the Senate.
– The honorable senator will have to move the omission of the second sub-clause, too.
– No. At first sight it appears that it ought to be omitted, but to my mind it need not be omitted, because I apprehend that in the event of an equality of votes the electoral officer would have to decide in accordance with the Constitution Act who should fill the periodical vacancy. If my contention is correct, that the first sub-clause is contrary to the spirit of the Constitution Act, I think the second sub-clause would work all right.
– I can quite understand that Senator Styles will be quite satisfied with the Bill if it is passed without the first sub-clause, because it contains the whole gist of the matter. By his amendment he is only endeavouring to give effect to the speech which he made in the Senate. That speech was replied to, so far as it could be done, and therefore it is hardly necessary for me to offer any further explanation.
– The whole Bill really hinges on this first sub-clause. I voted against the second reading, because I thought that the provision was not in conformity with the Constitution, but after discussion the Senate has decided that it is prepared to take any risk which is involved. If any person who may be elected under the clause should be dissatisfied, he will have the High Court to appeal to. I am inclined to think that some one may appeal to the High Court, and that is the only way in which the point can be decided. I am sure that it will be recognised that honorable senators are acting from disinterested motives, because if they were successful they would only have a chance of winning one seat in three instead of one seat in four. Seeing that the whole question has been thrashed out, I fail to see that it is of any use to divide the Committee or to prolong the discussion.
Senator STYLES (Victoria).- Senator Charleston is hardly correct, so far as my position is concerned. No matter whether there are two ballot-papers, or whether there is only one ballot-paper, I contend that a senator who is re-elected will
Still hold the position in the class in which he was placed by the Senate. Although from Senator Charleston’s point of view there would be only three periodical vacancies for which the three senators might stand, each would have a chance of securing the fourth seat. My contention is that either of the three Victorian senators who retire will have a chance of winning one of the four seats, and if he received the lowest number of votes, under the Constitution he would be entitled to hold that seat for a term of six years from the next election. I admit that he has four chances instead of three, without specifically stating whether he is going for the casual vacancy or for one of the periodical vacancies. I think it will be found that some constitutional lawyers agree with me in my reading of the Constitution Act. When the Senate decided last session that the three senators who were lowest on the poll should be of the first class, it exercised and exhausted its power. After a dissolution of both Houses the Senate can again exercise that power, but only once until another dissolution takes place.
– The honorable senator holds that the individual places of senators are continuous ?
– Yes; and in that view I am supported by an eminent constitutional authority. I shall call for a division, if only to show that I thoroughly believe in what I am advocating. I have heard nothing yet to shake the opinion which I formed a fortnight ago.
– What will be the result if a senator who occupies a casual vacancy does not put up for election?
– My contention is that if one of the three Victorian Senators who have been placed in the first class by a resolution of the Senate wins the fourth place on the poll he will be entitled to a six years’ tenure. Reading sections 7, 13, and 15 of the Constitution Act together, the clear meaning to my mind is that the Senate having once classified the representatives of a State, that classification holds good until a double dissolution takes place, and any senators who may be re-elected are returned to the class in which they were put by the Senate. Supposing that the Constitution Act had provided that the place of Senator Sargood should be filled by the electors, Senator Reid would have been elected for the unexpired portion of Senator Sargood’s term, and whoever is elected at the forthcoming election will complete Senator Sargood’s term. Supposing that the other House were dissolved in October, the position of Senator Reid would become vacant ; and, if he were elected, he would be returned for the balance of Senator Sargood’s time. I am firmly of the opinion that every one of the three Victorian senators who were lowest on the poll at the last election are in a particular class until the Senate is dissolved.
– Let us suppose another case. Say that there are four vacancies at the end of this year. We will suppose that not one of the present senators is re-elected. How then is it to be arranged which of the newly-elected senators shall sit for three years, and which for six ?
– No one will be deprived of his right then.
– We have to remember that the new candidates are separate individuals altogether’ from those who are retiring. There is no prescriptive right vested in the retiring senators who stand for re-election. We have no mortgage over our seats. We have a perfect right to suppose a case in which none of the retiring senators would be re-elected.
– I can see exactly what Senator Styles is driving at. If a man has been a member of the Senate, and happens to be in the first class, it is assumed by Senator Styles that he has some sort of prescriptive right over every other candidate who may stand for election. I do not think we should place ourselves in that position. We have no right to do so. We ought not to say that, simply because we have been members of the Senate, if we stand for election again we are bound to hold our seats for six years, although we may be fourth or fifth on the poll. Surely we can leave it to the electors to say which of the newly-elected senators shall sit for six years and which for three. No doubt the electors will give every consideration to the claims of gentlemen who have previously occupied positions as senators. They will always have a better chance than a stranger. But in going up for election we should stand in exactly the same position as a new man who has never been before the electors. Not one of us has a right to say - “Because I happen to have been a member of the Senate once, no matter what my position on the poll may be, I must sit for six years if I am re-elected.” That kind of thing will not work.
Senator CHARLESTON (South Australia). - I cannot follow my esteemed friend, Senator Styles, in his argument on the constitutional aspect of the question. When I supported him this afternoon, I understood that there would be two elections at the same time and place - that is to say, one to fill the casual vacancy and the other to fill the periodical vacancies. If there is to be only one election, .and there .ire four places to be filled, we must let the usual principle operate. The senators who receive the larger number of votes ought to be considered to be elected for the longer period. What I was contending for this afternoon was that there should be two elections - one for the casual vacancy and the other for the periodical vacancies, both elections held at the same time ; but I cannot agree that, simply because one gentleman has had a seat in the Senate, he should have a pre-emptive claim over it.
– Many legal opinions have been given upon this matter. After what I have heard I have been almost persuaded to support the establishment of the High Court. On the motion for the second reading, I raised an objection to the Bill, and nothing that has since been said has disproved the correctness of the view which I took. I believe that if thematter were referred for decision to the proper tribunal the contention of SenatorStyles would be upheld. What do we find in respect of the vacancies that will exist in Victoria in a short time 1 The Senate has made a rotation. There are two classes of senators. My contention is that, that rotation once made, should be adhered to. In ; any legislative body in the world what would have happened in the case of the vacancy which recently occurred in Victoria would have been this. A few weeksafter the death of a member an election would have taken place, and a new memeber would have been elected. But what does ourConstitution say ? As a matter of convenience, and to save expense, we do not have an election to fill a vacancy until .a more convenient season. But the Government are now setting aside the Constitution, according to my reading of it. In my judgment this is an illegal Bill. Probably those of us who live longest may find later on that the point will be judicially decided. Then we shall know who have taken theproper side. I shall not labour the point any further, but if a division takes place my vote will be given for the amendment! The clause as it stands is unfair to senators, who have been once penalized by the system of rotation adopted.
– They have beenpenalized by the electors.
– If this clause affected more than four senators others, would be more keenly alive to the position than they now seem to be.
– It affects Western Australia.
– It does not affect Western Australia, because the senator whohas succeeded Senator Ewing - he having been a three years’ man - retires in the ordinary course. But the position as affectingother States may change between now and December. Events may happen and, some of the six years’ senators may be placed in exactly the same position as the retiring Victorian senators are in now. Then, perhaps, they will regard this matterfrom a different point of view.
– Let me point out, both to Senator Styles and to Senator Barrett, that the fallacy that is underlying their contention is that they confuse the person of the senator with the place he occupies. Senator Styles has put the point - and evidently thought that it was pertinent to the argument - “Take the caseof the election by thepeopleof a successor to a deceased senator.” He argues that, if instead of the selection of a successor to Senator Sargood by the “Victorian State Parliament, there had been an election by the people, the result would have been that the new senator would have been elected to fill Senator Sargood’s place for the balance of his term. The Constitution provides that in the event of such a vacancy occurring the Parliament of the State shall appoint a senator until the next general election for the House of Representatives, or until the next election of senators. That is to say the State Parliament temporarily fills the vacancy. But, as soon as the next election occurs, that temporary appointment ceases and the vacancy occurs again. At the election it is competent for the people of the State to choose somebody to fill the place of the deceased senator, and also to choose three others to fill the places vacated by those senators whose occupancy of positions in the Senate expires by effluxion of time. We will assume that A B and C occupy positions as senators of the first class, representing the State of Victoria, and that they are to go out at the coming general election. We will assumealsothat there isafourth vacancy to be filled. It would be competent for the electors at that election to re-elect the particular senator chosen by the State Parliament to fill the casual vacancy, or to transfer their support from one of the other candidates who was offering himself for reelection for six years to the candidate who had temporarily filled the vacancy. In other words, it would be competent for the Victorian electors to transfer to the seat now occupied by Senator Barrett, the senator temporarily appointed as a successor to Senator Sargood.
– How could they do that?
– By giving a larger number of votes to the senator temporarily appointed than they gave to Senator Barrett.
– I can see nothing in the Constitution about that.
– Of course the honorable senator cannot, nor can he see anything in the Constitution against it.. What I am pointing out is that at the next federal general election in Victoria there will be four vacancies in the Senate. There is no vacancy at present. The one that did occur has been temporarily filled in accordance with the provisions of the Constitution. It is competent for this. Parliament to determine how those four vacancies shall be filled ; and that is what we are doing under this clause. It has. been suggested that we might have two. contemporaneous elections - one for the places vacated in the ordinary course, and one for the casual vacancy. At all events we must have some principle to determine how we are to fill a casual vacancy, and how we are to fill ordinary vacancies. Senator Barrett has pointed out that the Senate has adopted a system of rotation which determines who amongst us shall retire at the end of three years, and who at the end of six. That system is a fair one ; and it is equally fair to apply it to the circumstances that will arise in Victoria in December. When the elections take place, how can we by any principle assert which of the candidates elected shall sit for the longer term, except in accordance with the opinions of the people, as shown by the polling results ?
– That difficulty would not be insuperable.
– Of course it would not, but I am taking these possibilities to illustrate how absurd is the principle which my honorable friend wants to see adopted. It is only by taking thepossibilities which may arise, and in connexion with which a general principle maybe applied, that we can determine the excellence or otherwise of that principle. We have four or five vacancies, casual or ordinary, to fill at a certain period. The candidates for them are to be bunched together, and we should adopt the principle we have already followed in determining the rotation of retirement.
– Has the honorable and learned senator read Quick and Garran upon the matter?
– I have not read Quick and Garran upon the matter?
– Well, the honorable and learned senator ought to do so.
– I am not quite convinced that if I had read Quick and
Garran upon the matter I ought to be converted to the honorable senator’s view of the question.
– I anticipate the same question from Senator Styles by saying at once that I have not read Quick and Garran upon the matter. It seems to me, however, that there are two parties in an election - the electors on one side and the candidates on the other - and there has been a disposition this evening to consider chiefly the interests of the candidates, and not to pay sufficient attention to the feelings and wishes of the electors.
– That is hardly fair. I have a perfect right, as any other honorable senator has, to raise this question.
– Exactly ; but I think I have an equal right to express my opinion in that way. I am sure that . I may do so without offence.
– The honorable senator is imputing motives.
– I beg to assure the honorable senator that I am imputing no motives. We have had a great deal of discussion, in which I think the wishes of the electors have been lost sight of, and I now repeat that I think we might well leave it to the electors to say who they desire should be in the Senate for six years, and who should hold office for three years only. We have already in this Senate done something in barring State members, with which I did not agree, and which I thought was putting a ring fence around the present members of the Federal Parliament. That is perhaps beside this question, but I hope that honorable senators in the division to be taken are not going to do anything further to create in the minds of the electors a feeling that, when an honorable senator comes here, he thinks he has a better right to the position than any man outside who chooses to offer himself for it. There is one other thing I should like to say. When any person has held an opinion that a certain course of action has been wrongly taken, it is always satisfactory to him to find evidence in support of his views. I have always held that the provision in the Constitution that one-half the first senators elected should retain their seats for six years was rather questionable. I have thought that it would be more in accordance, with such a democratic Constitution as we have, if all the members of both Houses of the Federal Parliament were obliged to go to the country every three years. I am satisfied, after listening to the discussion on this Bill, that I was not far wrong in holding that opinion. “Senator STYLES (Victoria). - I desire to absolve Senator O’Keefe of any intention to impute motives. The honorable senator would be one of the last in this Chamber to do anything of the kind. 1 also desire to say that my contention arises from a firm conviction that I am right. That makes me very tenacious of the position I have taken up. I recollect last session that my friend, Senator O’Keefe, and every other senator present in the Chamber at the time, with the exception of Senator Barrett and myself, crossed the floor in a division of about 25 to two on the question of disqualifying State Members of Parliament. But what did they doon the next occasion? They crossed the floor and sat beside us.
– The honorable senator makes a mistake so far as I arn concerned.
– I am not mistaken in this case, because there were the two of us on the one side, and I remember, when the division was .asked for, using a great deal of persuasion in endeavouring to get Senator Barrett to try off. I mention this matter to show that people change their opinions. I hope that we shall be able to convince honorable senators in the same way as we convinced them before, and that later on they will admit that they were wrong in this case also. I believe that when the Bill goes to another place it will be found that the interpretation of the Constitution on this matter is not so easy and so clear as some honorable senators would have us suppose.
– We must put the honorable senator on the High Court Bench.
– I thank the honorable senator, but I am not looking for anything of that kind just now. I have a little modesty, and strange to say, though a politician, I would not accept a position which I could not fill. I rose specially to absolve Senator O’Keefe from any intentional imputation of motives. I am sure the honorable senator would not do such a thing. I do not know that any honorable senator present would do it unless he was very much ruffled at the time, as I think Senator Walker was upon this occasion.
Senator WALKER (New South Wales). - As a matter of explanation, I desire to point out that while Senator Styles says that only two Senators voted in favour of allowing State Members of Parliament to be eligible as candidates for election to the Federal Parliament, I never voted otherwise than in favour of the perfect freedom of the electors to vote for whom they like. I believe that several other honorable senators held the same view.
Question - That the words proposed to be omitted stand part of the clause - put. The Committee divided.
Majority … … 10
Question so resolved in the affirmative.
Clause agreed to.
Clauses 10 and 11, and Schedules A and B agreed to.
Bill reported without amendment; report adopted.
– I move -
That the Bill be now read a second time.
The object of this Bill is to create a Commonwealth naturalization, and to lay down the conditions under which aliens may become entitled to the rights and privileges of British subjects in Australia. The particular rights and privileges of British subjects as against aliens is a matter that is not very clear in any British country. Those rights and privileges depend upon the common law and also upon the statute laws of the different countries. The principal rights or privileges of British subjects in Great Britain, or most other British countries, are that they may serve upon juries - which is not generally considered a very great privilege - and that they may in most cases lease land and own British ships. On the other hand, an alien is not permitted to hold any share in a British ship. British subjects, as against aliens, are always entitled to consular protection - the protection of the flag - in foreign countries, a right which may be in some cases of very great importance to the individual. I wish to make it clear here that the proprietary rights of an alien who becomes naturalized in a country depend almost exclusively upon the statute law of that country, so that we are not laying down in this Bill what particular rights may be exercised by an alien who becomes a naturalized British subject here. We are establishing a standard, up to which the person who is applying for naturalization must come before he will be entitled to obtain letters of naturalization. Honorable senators are aware that at the present time each State of the Commonwealth has its own naturalization laws - its own particular conditions under which persons from outside are admitted to citizenship, but the rights and privileges which that citizenship confers vary in the different States. As the law, although similar in character, is different in each State, a certain amount of confusion arises, and there is also the inconvenience that a person who becomes naturalized, say, in New South Wales, is not necessarily a British subject when in Victoria, or Queensland, or any other State. A . man who at the present time complies with the law, and becomes a naturalized British subject in one State of the Commonwealth does not by that means become a naturalized British subject in any other State of the Commonwealth. It is now considered to be desirable to have one law of naturalization so that a person who is naturalized shall be a naturalized citizen every State of the Commonwealth.
– And vice versa ?
– No. We are now establishing a law of naturalization for the Commonwealth, and we are laying down in this Bill the conditions which must be complied with by any one who comes from Great Britain or is a resident of any of the States and who asks for Commonwealth naturalization. It is particularly necessary that this should be done now. We have a body of Commonwealth law gradually growing up, and if this action were not taken, the resultwould probably be that we should have to decide what persons coming from outside were entitled to be regarded as British subjects under the laws that are being made for the Commonwealth. By this Bill, therefore, we take the whole subject from the States. Of course ; as I will show, we shall respect the rights that have already been acquired.
– The Government do not respect them ; under this Bill persons who have become naturalized in the States are to be re-naturalized.
– I shall show presently that we recognise letters of naturalization that have already been granted. But from this time we say that no State shall have the power to grant letters of naturalization to any alien. From this time the matter will be entirely in the hands of the Commonwealth.
– From this time our law will supersede the State laws ?
– This is one of the subjects in respect of which this Parliament has power to legislate, and as soon as we pass a law in regard to naturalization our legislation will override that of the States. Clause 13 expressly provides for this matter. It provides that -
From the commencement of this Act the right to issue certificates of naturalization in the Commonwealth shall be exclusively vested in the Government of the Commonwealth, and no certificate of naturalization or letters of naturalization issued after the commencement of this Act under any State Act shall be of any effect.
That is the way in which we deal with the matter. From the time that this measure comes into force, the subject will become a Commonwealth matter, and the States Parliaments will cease ‘to have any jurisdiction.
– Section 108 of the Constitution enables our legislation in this respect to supersede the legislation of the States.
– Quite so. I shall deal ‘first of all with the persons who may apply for letters of naturalization, and I ask honorable senators to take particular notice of the terms used. Those who may apply for naturalization may be divided first of all into two classes, namely, those who are resident in Australia and who comply with certain conditions, including the making of a declaration of their intention to continue, to live in Australia, and those who come here with letters of naturalization obtained in the United Kingdom or who have obtained them as residents of any State of the Commonwealth. Persons having these letters of naturalization will be admitted on somewhat easier terms than those who do not possess them, the principal distinction being that those who have not obtained letters of naturalization in Great Britain, or one of the States of the Commonwealth, must have continuously resided for five years in the Commonwealth before they can get certificates.
– What about Canadians 1
– They are treated as aliens coming from outside. Their letters of naturalization will not be of any avail. It is only persons who have letters of naturalization issued in the United Kingdom, or in any State of the Commonwealth, who will be treated in this way.
– But a born Canadian would be a British subject ?
– Of course he would.
– But what will be the position of a man who was naturalized in Canada ?
– A naturalized subject of Canada will have to seek for naturalization here just as any alien will have to do. He will not have the same right that we propose to give to those who have been naturalized in Great Britain, or in’ one of the States of the Commonwealth. That exhausts the two classes of cases.
– Is there reciprocity between the Commonwealth and Great Britain ?
– I cannot say whether there is or not, but I think that in nearly all laws of this kind which prevail in the British dominions there is some provision for reciprocity. I cannot say exactly, but I think that in the United Kingdom there is a provision recognising letters of naturalization from the colonies.
– There is none.
– There should be.
– German colonists who are naturalized in one of the States of the Commonwealth are recognised as British subjects when they go to Germany.
– That is another point. The point raised by Senator Playford is to what extent a person who has letters of naturalization from a British country will be regarded as a British subject when he ‘ goes to his own country.
– A German colonist ‘ who returns to his own country is recognised as a British subject. Why do not the Government recognise him as a British subject here? Many German colonists have been naturalized in South Australia for 30 or 4.0 years.
– Under this Bill they will be able to obtain Commonwealth naturalization simply by complying with the forms necessary in order to prove their bona fides. If the honorable senator will permit me to come to that part of my speech I shall make it perfectly clear. Having divided possible applicants into these two categories, I wish, first of all, to deal with the case of male aliens and unmarried women, because the law is the same with regard to both classes. In the case of one who has not received letters of naturalization in the United Kingdom or in one of the States of the Commonwealth, it is necessary for the manor the unmarried female under paragraph (a) of clause 4 to show that he or she - I will say “he” to save the constant change of the pronoun - has resided continuously for five years immediately preceding the application. He has to make a statutory declaration, giving his name, age, birthplace, occupation, and length of residence, and he has also to make a declaration that he intends to settle in the Commonwealth. Then, under paragraph (b) of clause 5, he has to produce a certificate signed by a justice of the peace, showing that he is, to the best of the knowledge and belief of the magistrate, a person of good repute; he has also to take the oath or affirmation of allegiance. In other words when he is making his application he may be sent on to make this affirmation, and he must receive a certificate from the justice, Judge, or magistrate that he has. taken it. Those are the requirements of the Bill with regard to an alien who has not previously received letters of naturalization, or an unmarried woman. But a man who has received letters of naturalization’ in the United Kingdom or in one of the colonies - now a State of the Commonwealth - or in a State of the Commonwealth previous to the passing of this Bill, has only to produce his letters of naturalization and prove of course that he is the person named in them. He has to prove that they have been obtained without fraud, and that he intends to settle here. He has of course already taken the oath of allegiance in the country in which he has obtained his letters of naturalization.
– Why should he be put to that trouble when he is already a citizen of a State 1
– He has to do that in order to prove his bona fides. A man may say, “I want to be admitted to the naturalization of the Commonwealth, and here are my letters of naturalization obtained in one of the States of the Commonwealth.” Surely when he does that we have a right to ask him to prove that he is the person named in the papers. There is no trouble in obtaining these letters of naturalization, and this form is interposed before the certificate is issued in order to show that the applicant is the right person and that he intends to reside here. Honorable senators surely would not say that a man who has obtained letters of naturalization in one of the States and proves his bona fides, should obtain letters of naturalization from the Commonwealth when he intends to leave immediately.
– He must have his naturalization papers.
– He has to prove that he is the person named in them, and that he intends to reside here. . I cannot see that there is any particular hardship in that. With regard to married women the position is somewhat peculiar, because the general rule is that the status of a woman in these matters is the status of her husband, whatever it may be. If a woman who is an alien marries a British subject she becomes naturalized during the continuance of her marriage ; and if her husband dies or she is divorced she continues tq, be classed ais a British subject until she marries again. Of course, if she marries a British subject she remains a British subject, but if she marries an alien her position becomes the same as that of her husband.
– What about the suffrage 1
– She would lose the suffrage if she were entitled to it. I shall show directly that naturalization does not necessarily give a right to the suffrage. A woman who is a natural-born British subject loses- her naturalization when she marries an alien.
– Why should she not naturalize her husband ‘?
– If the husband desires to be a British subject, it is for him to take the proper course to obtain that status. The fact of his wife being a British subject when the marriage takes place will not raise him to that position, and I do not think that-it should.
– She has the same voting power as he has.
– An alien may get naturalization papers, but that does not necessarily give the right to vote.
– Supposing that a British-born woman marries a naturalized Chinaman ?
– If a woman who is naturalized marries a Chinaman who is naturalized she is a British subject. If a naturalized woman marries an alien she ceases to be naturalized. The matter is necessarily confusing, but the principle throughout is perfectly clear - that a woman may be naturalized, and acquire another naturalization ; but, so long as she is married her political status is determined by the political status of her husband. I do not know whether it is necessary to say very much about children. The rule which has been adopted in the Bill is that a child who is born of naturalized parents, and lives with them, is naturalized until he comes of age. He is reckoned as a .British subject until he is 21 years of age, simply because he was born here. Upon attaining that age, if he so desires, he takes out letters of naturalization, and becomes a British subject.
– In South Australia, a child who is born of naturalized parents is a British subject for ever.
– It seems to me that it is a right principle to adopt. We might have a large number of aliens in the country, and it is well that their children, when they come of age, should not be naturalized unless they take the necessary action to acquire that status. They should not be regarded as British subjects simply because they have been born in Australia.
– Surely the issue of these parents ought to be British subjects without taking out letters of naturalization ?
– Clause 10 is based on the law of New South Wales, and it is in accordance with the report of the departmental committee on the subject’ which sat in England comparatively recently. The recommendations made in that report have been, to a great extent, carried out in the Bill. A remark was made just now which seemed to imply a belief on the part of some honorable senators that, in granting letters of naturalization, we put the holders, with regard to voting rights, on a position of equality with all classes of British subjects here. That is not so. Clause 7 expressly provides that the certificate of naturalization is granted -
Subject to any laws for the time being in force relating to the qualification of members of the Parliament and of electors of members of the Parliament.
In the Electoral Act we expressly disfranchise aboriginal natives of Asia, Africa, or the islands of the Pacific. This clause is put in to make it perfectly clear that in granting letters of naturalization, we do notgive voting rights to any of the persons whoare disqualified from voting under our electoral laws.
– Supposing that a. German is not disqualified, would naturalization give him the right to vote ?
– Naturalization gives him the right to vote if there is nothing to disqualify him. It is granted subject toany disqualifications which are in the Electoral Act, and not subject to disqualifications which are not in the Electoral Act. Certain disqualifications in the Electoral Act stand good. Clause 6 makes it perfectly clear that if a person has been naturalized elsewhere, has proved his identity and bona fides, and established his right to apply for a certificate of naturalization, the granting of that certificate shall be absolutely a matter of discretion. The right of allowing a person to become a British subject in Australia is a right which may be given or withheld by the Governor-General in Council without assigning any reason. The clause reads as follows : -
The Governor-General in Council, if satisfied with the evidence adduced, shall consider the application, and may with or without assigning any reason, in his discretion grant or withhold a certificate of naturalization as he thinks most conducive to the public good.
We give all proper facilities to persons outside to come in and claim naturalization and the rights of a British subject in Australia ; but at the same time we say that the admission of these people to our citizenship shall depend entirely on the question as to whether it is “most conducive” to the public good that they should be allowed to become citizens. The other clauses of the Bill are machinery provisions, which it is not necessary for me to discuss at this stage.
– I am very sorry that the Government did not see their way clear to admit to full citizenship those who for years have been citizens of the various States. In South Australia, for instance, any person who is qualified to vote at State elections has been placed on the Federal electoral rolls. Surely if we are to admit these persons as Federal electors, as we do at the next elections, we ought to admit them to full citizenship1? We have a large number of Europeans other than Britishers who have been in South Australia for a great many years, and who have really helped to build up the State. Why those persons who have been admitted to the citizenship, of the State for all these years, and who are classed among our best citizens should not be made citizens of the Commonwealth, I cannot understand. I hope that -the Government will see their way clear to admit such persons to full citizenship.
– And their children born here will be classed as aliens.
– Not children born here, but children born away from here.
– I regret that the honorable and learned senator did not make that point clear in his speech. I hope that in Committee we shall be able to insert a clause which will enfranchise very many persons who have been citizens of. the various States for a large number of years.
– Would the honorable senator grant that without making any inquiry 1
– Yes. Supposing that the names of these persons appear on the citizens’ roll of South Australia ; if the Commonwealth is to keep a roll, their names ought to be transferred to the citizens’ roll of the Commonwealth. I see no reason why they should not be. Certainly the Postmaster-General has not given us any reason why they should not be. I am not quite clear about the following point. Say that a foreign woman marries a British subject. As the wife of that man, she is a citizen of the Commonwealth, and has all the rights and privileges of a citizen. She can lease land, hold property, and do other things which every natural born British woman is entitled to do. If her husband dies and she marries an alien she is deprived of all her former rights. Seeing that our laws allow women to hold property in their own right, I fail to see why that woman should not enjoy what she previously enjoyed as the wife of a British subject.
Children who are born in the United States of naturalized parents become citizens of the United States.
– That is so also under this Bill.
– I am glad that it is so. I rose merely to emphasize the two or three points which I have made.
– This Bill is of national importance. Personally, I regret that it is not more liberal from the point of view of naturalization ; and in Committee, if certain amendments are not proposed by others, I shall deem it to be my duty to propose them. I notice that in clause 4, paragraph (a), the Bill says, speaking of a person resident in the Commonwealth, not being a British subject, that to become naturalized he “ must reside in the Commonwealth continuously for five years preceding the application.” There are numbers of naturalized British subjects in the States who have been here for long period’s and who possibly may take an extended trip to Europe. They may be away, say, for six months in a year, although they have lived in Australia for 30 or 40 years. Do I understand that they would be precluded from coming under the clause I have mentioned 1
– Yes ; they would not have been here continuously for five year’s immediately preceding the application if they had been -away.
– Then we shall have to alter that clause. Again, if a man has been a naturalized” British subject in Queensland for 30 years, and takes a trip to Europe, is he to be treated as not naturalized when he comes back ?
– He must get naturalized as a citizen of the Commonwealth.
– I was always under the impression that when once a man was a British subject he was always a British subject. I am quite surprised to learn that a man naturalized, in one of the Australian States is not to be considered as a naturalized citizen of the Commonwealth. I thought that the great object of Federation was to make all the States one.
– That is what we are trying to do by this Bill.
– It seems to me not to be so. I gather from what the PostmasterGeneral says that it is not absolutely certain that a citizen of a State will, ipso facto, become a citizen of the Commonwealth, unless he comes under this Bill ; whereas if a man is a citizen of the Commonwealth, he will be a citizen of any State. One of the most important provisions of our Constitution, section 92, says : -
On the imposition of uniform duties of Customs, trade, commerce, and intercourse among the States . - . shall be absolutely free.
Intercourse means that people shall be at liberty to go from one part of Australia to another. Is it meant to say that a Chinaman who is naturalized in New South Wales cannot go into another State ?
– I do not think that is the meaning of “ absolutely free “ in section 92.
– I was under the impression that a Canadian, who was a British subject in Canada, would, upon the same principle, be a British subject in Australia. It is perfectly surprising to me to learn that a Canadian may not be a British subject when he gets to Australia. Surely, Senator Drake must be mistaken in that. If a man is born in Canada, of foreign parents and is naturalized there, has he to be re-naturalized if he comes here ?
– There will have to be a great many changes made in this Bill.
– It is the law all through the British Empire.
SenatorWALKER. - Does the honorable and learned senator mean to say that a foreigner naturalized in Australia would not be a British subject if he went to England?
– Certainly not ; the naturalizing authority of a British dependency can only be exercised within its own territories.
SenatorWALKER. - If a foreigner is naturalized in Great Britain, is he recognised as a British subject in Australia ?
– We cannot give foreigners naturalization in Great Britain, but Great Britain can give them naturalization here.
SenatorWALKER. - Let me draw attention to section 109 of the Constitution, which says -
When a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Surely it is inconsistent with our laws that a person cannot go into New South Wales from another State simply because the New South Wales law says that he shall do such and such a thing. Would not that law be inconsistent with the Commonwealth law if this Bill were passed?
– To the extent of the inconsistency our law prevails according to the terms of section 109 of the Constitution. We especially provide for that in clause 13.
SenatorWALKER.- That is so from this time forward ; but can we deal with past State legislation ?
– There was no Commonwealth law on the subject hitherto.
– Will not our Commonwealth law supersede the old State law?
– With regard to married women, I think it absurd to say that if a foreign woman marries a British subject, and her husband dies, her status under the law shall change.
– We do not say that ; but if she marries an alien she loses her nationality.
– That is interfering with the liberty of a British subject, is it not?
– Evidently the equality of the sexes is not recognised.
SenatorWALKER. - We hear a great deal about preferential trade and about building up the Empire. This Bill in many respects does not accord with that principle. I have a distant recollection that when I was a schoolboy we used to have explained to us the old Roman principle, CivisRomamum sum - I am a Roman citizen. Once a man was a Roman citizen he was always a Roman citizen. But under this Bill an Australian citizen might go to England and say - “ I am a citizen of the Australian Commonwealth,” and it would be said to him - “ We do not know such an individual.”
– No; Australian citizens will be protected by the flag, and recognised by British consuls.
– I am glad that the Bill has been introduced, but I see many things in it that strike against my preconceived ideas of what it means to be a British subject. I also hope that we shall reduce some of the charges under the Bill. A fee of £1 must be rather a tax upon some people. Our object should be to get as many reputable citizens in Australia as possible. We should offer every facility to Europeans to come here, and allow them to be naturalized as soon as possible. We have a wonderful object lesson in the United States. Where would the great Republic have been to-day if she had not offered facilities for Europeans to become naturalized t
– What about the negroes’!
– I understand that they also can become citizens of the United States. I shall vote for the second reading of the Bill, but I shall do my best to improve it in Committee.
– Like the last speaker I welcome the advent of this Bill, but at the same time I differ from him because I think that due regard has been had in some of the clauses of it to what is the existing English law, or the main principles of naturalization, in different parts of the Empire. It would seem from the remarks of the last two speakers that there is in their minds some misconception as to the law of naturalization in British dependencies. We, as a subordinate Legislature, have not the same power of conferring nationality by our statutes upon those who are not naturalborn British subjects as is enjoyed by the Imperial Parliament. The British Parliament has the power of conferring British nationality upon any alien, and that nationality follows the person throughout the whole- Empire. The different subordinate Legislatures, each within its own limits as a dependency of the British Empire, have a corresponding power, which, however, does not extend beyond their own territories. Hitherto the different State Parliaments of Australia have been able to legislate for the naturalization of aliens within their own confines. Consequently the German friends of Senator Charleston, who formerly were naturalized only in South Australia, were made British subjects only within the confines of South Australia, and when they passed the border their naturalization was not recognised by other States. That is the position to-day. In connexion with one of the Federal conferences which was held some years ago, I believe, a difficulty arose by reason of the fact that a prominent statesman in South Australia, Mr. Homburg, who occupied the position of Attorney-General, although he was Her Majesty’s legal adviser, would lose his status as a British subject if he went beyond the limits of his own State. I believe that that difficul tj’ cropped up in connexion with the representation of South Australia at some Federal gathering. Now my honorable friend desires, and so does Senator Playford, that all those who have been naturalized within the States shall, on the passage of this Bill, become ipso facto naturalized within the whole of the Commonwealth. There is really no difficulty in the way of their becoming so. I point out to honorable senators that the provisions made for those persons obtaining naturalization throughout the Commonwealth are simply provisions of a precautionary character intended to secure the proper identification of the persons who profess to have State naturalization. They have not to demonstrate their qualifications, or pay fees, as have those who are being naturalized for the first time under the Commonwealth law. They must demonstrate their identity with the persons named in the State naturalization papers they produce. Any person ordinarily naturalized under a State law will have received naturalization papers and will keep them. Any person naturalized under the Commonwealth law for the whole of Australia will have his naturalization papers given to him. A person naturalized under the State law will simply have to present his State naturalization papers to prove his identity and his bona fides, and to make a declaration that the State naturalization papers which he holds were not obtained by fraud. He will not have to go through the ordinary forms which must be gone through by an individual being naturalized for the first time under the Commonwealth law. It is only a precautionary measure so that the Commonwealth, in adding to his limited naturalization the fuller naturalization which it can confer upon him, shall be satisfied that he is identical with the person named in the State naturalization paperswhich he presents. My honorable friend desires apparently that by some automatic process those people should become citizens of the whole Commonwealth without any evidence of bona fides or identity. We know that in more than one of the States of the Commonwealth there are a great number of Asiatics. We know also, from past experience, that persons of Chinese nationality are remarkably deft in the handling of naturalization papers. It is possible that there may be hundreds of persons in one or more of the States of the Commonwealth holding naturalization papers which were never originally issued to them. Senator Charleston desires that, simply because of the fact that they hold these papers, and are assuming the names of the persons to whom they were originally issued, they shall become British citizens throughout the Commonwealth. Under the Bill, if persons claiming to have been naturalized come forward and prove their identity with the persons named in the papers they present, and satisfy the officials of the Commonwealth that those papers have not been obtained by fraud, they will become, without any further difficulty, British subjects, not merely in the one State in which their naturalization papers were issued, but throughout the whole of the States of the Commonwealth. The whole question of naturalization rests on the question of nationality. We cannot get away from the old principles that permeate the whole of the law in Great Britain, where, of course, nationality was determined entirely by the place of a man’s birth, on the old feudal principle that persons on the soil were themselves really appanages of the soil. We cannot depart, either, from the old principle adopted in Great Britain in regard to this matter, because, as I pointed out in my opening remarks, we can only legislate upon this particular subject in a subordinate way. We are only conferring British nationality within the province of our own territorial jurisdiction, and we have, over and above us, a higher authority which can, on this matter, legislate in respect of the whole of the Empire. Honorable senators will see that we occupy with regard to this subject of legislation a specially subordinate position, and, no matter whether they may accord with our principles or not, we must have regard for those main principles which permeate the law in connexion with the higher authority to which I have referred. As I have said, the law of nationality rests upon feudal principles.
– Does the honorable and learned senator think that his argument applies to naturalization papers issued by the Imperial Government in a Crown colony 1
– I should not be prepared to say that off hand, but naturalization papers issued in respect of persons in a Crown colony would, I think, be issued by the Imperial authorities acting as Administrators of that Crown, colony, and would have force and effect only within that territory. Whilst naturalization papers issued in the United Kingdom confer British citizenship throughout the Empire, naturalization in a State gives British nationality in that State only. With regard to what Senator Walker has said as to the awkward position in which women are placed, that follows from the principle to which I have already referred, that the law of nationality depends entirely upon feudal principles, and the nationality of the wife follows that of the husband. Senator Walker has said that he is extremely surprised to find that a woman may be for a time a British subject by reason of the fact that she has married a British subject, and that on his death she ceases to be a British subject. The honorable senator’s error has been pointed out. That is not the provision at all. There must be something after his death, and the woman must, after his death, have remarried an alien to divest herself of her own acquired nationality. This law is based upon feudal principles, and we must respect those principles, no matter how little they may be in accord with the sentiments of our own immediate environment.
– What is objected to is that a British citizen can naturalize his wife,, whilst a British wife- cannot naturalize her alien husband.
– Quite so ; that is because the feudal principle that nationality in the first instance is determined by the place of birth at common law. Although much legislation was passed before that time to confer rights upon children of British subjects born outside His Majesty’s dominions, I think it was only about the time of Queen Anne, if not later, that any statutory provision was made to enable persons who were not natural born British subjects to become naturalized. The wife’s nationality and status always merged in those of the husband at law, and the nationality and status of the husband were not merged in those of the wife, and are not to-day according to British law. It is for that very reason that the converse does not apply in the case stated by Senator Dawson. An Englishman marrying a foreign wife confers upon her British nationality simply because by a fundamental principle of law her status is merged in his. But au English wife marrying a foreign husband does not confer on him
British nationality; on the contrary, her status is merged in his and her nationality becomes his nationality.
– Does the honorable and learned senator contend that we are bound by these limitations ?
– I do, for the reason I have stated : that this is a particular class of legislation in dealing with which we do not enjoy that supremacy which we possess with respect to most other subjects.
– Because we recognise their naturalization, we must also recognise their limitations ?
– Yes ; because we are conferring British nationality, not Austraiian nationality merely. That must not be forgotten. We are conferring British nationality, not, of course, throughout such an extensive sphere as the British authorities may confer it, but we are conferring full British nationality within a certain defined geographical area. It is because we confer British nationality that we must view this legislation in a very different way from legislation upon most other subjects. It is well known that this question of naturalization is one which has engaged a considerable amount of attention, and that it has evoked a considerable amount of correspondence between the Imperial authorities and the authorities of the various dependencies of the British Empire. If honorable senators will turn to the papers circulated a short time ago in connexion with the ‘conference between the Secretary of State for the Colonies and the Prime Ministers of the self-governing colonies, they will find some very interesting matter in connexion with this subject, in Appendix 13. The authorities of Canada have been desirous for some time of being able to confer by. their naturalization papers, British nationality that will extend to the United Kingdom. They have been desirous, too, of in some way or another passing legislation by which the difficulty suggested by Senator Walker could be overcome. I refer now to the difficulty which the honorable senator raised, when he pointed out that the Bill provides that a person on first applying for naturalization, must have been resident for five years within the Commonwealth. The honorable senator suggested that an alien might at intervals be absent from the Commonwealth, and might not be able to qualify for naturalization by a period of five years’” continuous residence within the Commonwealth. In Great Britain five years is theperiod fixed, and in Canada, also, five years’” residence is required. It was proposed, in the course of the negotiations between theauthorities of Great Britain and Canada, that if the applicant had put in five years’” residence in the King’s dominions, twoyears, for instance, in the United Kingdom and three years in Canada, he should beeligible to apply for naturalization in either country. In a despatch from the Clerk of the Privy Council, there is given an extractfrom a report of the Committee of the Honorable the Privy Council, approved by His. Excellency on the 12th April, 1902, in which the Clerk of the Privy Council says -
The Minister states that under the law as proposed to be amended, it would seem that an alien who had resided five years in either the United Kingdom or in Canada, would be able to obtain full naturalization, but an alien who bad resided four years in the United Kingdom, followed by four years’ residence in Canada, or vice versa, would be unable to obtain naturalization in either country.
In reply to that, the Naturalization Committee, in their report to Mr. Ritchie, state -
In drafting our report, we considered the question whether a person applying for a certificate of naturalization should be required to show that hehad resided for five years within the jurisdiction of the naturalizing authority to whom the application might be addressed, or whether, so long as the applicant could show that he had resided five years within the King’s Dominions, ifc should be immaterial that he had during that period resided within the jurisdiction of more than one naturalizing authority. We recommended the first alternative. We considered that five years’ residence in the United Kingdom or some one British possession would be a proper guarantee of a definite intention to continue to reside within the Dominions, and that if it were permitted to an applicant for naturalization to reckon five years’ residence made up of shorter terms in various parts of His Majesty’s Dominions, difficulties would arise in reference to evidence of residence and fitness for naturalization. We adhere to this view.
Now, whether honorable senators agree or do not agree with the report of that committee, which, for the reasons stated, selects that first alternative - that is, the necessity for five years’ residence within the jurisdiction of one naturalizing authority - we have this to remember : Here is the Dominion of Canada endeavouring to obtain something in the nature of reciprocal recognition of naturalization with Great Britain. The Dominion is endeavouring to obtain a more extended British nationality, in a geographical sense, for the naturalized Canadian, and there we have- stated the attitude of the Imperial authorities. The more we deviate from the main principle bf the common law of nationality and the English statutes with regard to naturalization, the less will be our chance of obtaining that reciprocity to which Senator Dawson has referred in his interjections, and which I think it is desirable to have established as early as possible, between the Commonwealth and the United Kingdom with reference to this particular subject. We must, .for these reasons, adhere to and respect the main principles underlying the British law of naturalization. A perusal of that correspondence will disclose the attitude taken up by the Imperial authorities. It will be seen how great are the difficulties which confront Canada at present in endeavouring to relax its naturalization law to what would seem to be the harmless and slight extent referred to in this report of the Privy Council. I hope that the Bill will go into Committee, and that many of the assaults which we have heard are likely to be made upon its provisions will not be attempted. It would be all very well for us to endeavour to make, as Senator Walker has suggested, a law which would enable as many people as possible to become British subjects ; but the greater the tendency shown by us to relax the conditions under which aliens may acquire the full benefits of British nationality in our territory, the less will be the likelihood of our naturalization of these aliens being recognised in the United Kingdom or in other parts of the British Empire. That is the point to which we must pay attention. If we are going to impose conditions so simple that they will be calculated to deter the authorities in other parts of the Empire from recognising as British subjects those on whom we choose to confer that distinction, we place little value on our nationality.
– We want population; they do not.
– We may require population. We have many who are not already naturalized, and I do not know that facilities for naturalization will necessarily be an inducement to many to come here. But if we relax the particular condition as to the term of residence, it is almost certain that the naturalization laws of the Commonwealth of Australia””, will never receive in other parts of the Empire that recognition that it is desirable they should receive. The more we relax these conditions the less will be the value of the naturalization to those who acquire it. We should do everything in our power to enable those who have already acquired a limited naturalization under the laws of the States to obtain with facility the recognition of that naturalization and the extension of it to the whole area of the Commonwealth. But so far as applicants for admission to the position of British citizenship in Australia are concerned, we ought to be as jealous of that privilege as are the people of America. We ought to be so jealous of that right that when we confer it upon any person, so far as our own territory is concerned, the British people in the rest pf the Empire might be prepared to accord it full recognition. Canada is endeavouring to do that, and we have learned of the difficulties which confront her. When the Postmaster-General was moving the second reading of the Bill, his attention was drawn to .clause 10, which provides that -
An infant, not’ being a natural born British subject, ….
whose mother is married to a natural born British subject, or to a person who has obtained a certificate of naturalization ; and who has, at any time, resided in Australia with such father or mother shall in the Commonwealth during infancy, be naturalized, and have the same rights and privileges, and be subject to the same obligations as a person who has obtained a certificate of naturalization.
Then there is the further provision in subclause (2) that -
The infant shall, on reaching the age of 21 years, cease to be naturalized by virtue of this section.
The Postmaster-General and Senator Best said that that was the English law. Certainly the marginal note invites a comparison with section 10 of the British Act. But it should be only a comparison.
– It is based on the New South Wales law.
– I have here the United Kingdom Statute, and sub-section (5) of section 10 provides ‘that -
Where the father, or the mother being a widow, has obtained a certificate of naturalization in the United Kingdom, every child of such father or mother who during infancy has become resident with such father or mother in any part of the United Kingdom, shall be deemed to be a naturalized British subject.
Nothing is added to that provision to disqualify the child on attaining his majority.
– Has the honorable and learned senator the report of the committee in regard to that point 1
– I hare a reference to it. Foote, in his Private International Jurisprudence, gives *the whole of section 10, and it is followed immediately by this paragraph -
Infant Children. - Sub-s. (5) of this section is apparently intended to meet the cose of children born before the certificate of naturalization is obtained.
So far as I can see, the wording of this provision in tho Bill before us would not insure its application only to the case of a child who had been bora before the certificate of naturalization had been obtained. Foote goes on to say that -
It is plain that, so far as these are concerned, they do not acquire British nationality unless they reside with the naturalized parent iu the United Kingdom. But it would a fortiori apply to children born after the certificate of naturalization is obtained, assuming th’e opinion of Kay, J. , in He Bourgeoise, that such certificate does not give tho power. of transmitting nationality to descendants, to be correct.
He points out that -
The Court of Appeal in the case’ cited left this question unanswered as one of great difficulty.
In these circumstances I think that once a child has acquired a nationality, we might hesitate somewhat before divesting him of it by the operation of a statute. Apparently there is no provision in the English Statute similar to that in sub-clause (2) of clause 10, and we should insure its application only to the case of a child who had been born prior to the issue of the naturalization certificate to the parent. If the certificate had been obtained before the birth of the child, that child, despite the fact that a decision upon the subject has not been given in the old country, should have transmitted to it the naturalized nationality of the parents. In any case, if a child has attained British nationality through the naturalization of its parents, he should have to take some active measure on reaching the- age of 21 in order to divest himself of that nationality. The whole principle rests upon that point. Curiously enough the following paragraph appears immediately after that which I have just quoted from Foote’8 work : - lt will be been that all the legislation which has taken place on this subject proceeds on the principle that a man is unable of himself without statutory assistance, to change his nationality.
In the words of Lord Hatherley, iu Udny v. Udny, ” the question of naturalization and allegiance is distinct from that of domicil.”
He goes on to quote another cose, that of Moorhouse v. Lord, in which Lord Kingsdown - - speaking of the acquisition of a French domicil is reported as saying that in order to effect such a result, a man must intend to become a Frenchman instead of an Englishman.
I think we ought to hesitate before placing in . our statutes any provision which would cause a person who had enjoyed British nationality until the attainment of his majority, to be deprived of that nationality on the attainment of his majority without any active effort on his own part to be divested of it, and which would necessitate him taking the course of naturalizing himself and becoming on attaining hia majority of the same nationality as he was before reaching that particular age. I hope the Bill will go into committee, and that with the discussion of its main principles, those who have spoken so largely against certain provisions in it will see- that there is no reason for them to push amendments of the character they appeared to indicate their intention of moving. .
Debate (on motion by Senator Pearce) adjourned.
Senate adjourned at 9.40 p.m.
Cite as: Australia, Senate, Debates, 1 July 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030701_senate_1_14/>.