1st Parliament · 2nd Session
page 3235
The Clerk having acquainted the Senate of the unavoidable absence of the President,
The Deputy President took the chair at 10.30 a.m., and read prayers.
page 3235
Senator KEATING presented a petition from 43 electors of Tasmania, praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.
Senator FRASER presented a similar petition from 46 electors of Victoria.
Petitions received.
page 3235
– I desire to ask the Vice-President of the Executive Council, without notice, if he can give the Senate any information about the non-production of the papers relating to two summonses against Farmer and Co. for breach of the Customs Act which we’re promised in response to a question by me on the 22nd July?
– The return is in course of preparation, and will be laid upon the table on Tuesday next.
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– I desire to ask the Vice-President of the Executive Council, without notice, whether’, in obedience to the order of the. Senate, a return has yet I been compiled of the number of patents which have been issued by the various States, and, if not, whether he will expedite its production as early as possible so that it may be in the hands of honorable senators before’the Patents Bill is again dealt with?
– I am not in a position to state now whether the return is compiled, but I shall take a note of what the honorable senator has said, and expedite its production.
page 3236
– The answers to the honorable senator’s questions are as follow : -
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– I rise to a matter of personal explanation on behalf of Senator Zeal, who is not present. It is in connexion with a division which took place last night: on the proposal of Senator Walker to introduce a provision for pensions in the Judiciary Bill. Before the Postmaster-General left the Chamber yesterday, he had arranged a general pair for that day and to-day with Senator Zeal, of course, leaving the disposal of his vote in the hands of his colleague the leader of the Senate. When Senator Drake left, Senator Zeal understood that the former was going to support the proposal of Senator Walker. When the vote was taken, Senator O’Connor was voting against the insertion of the provision, and Senator Drake, had he been present, would also have voted in the negative. Consequently, if the pair were to have any operation at all, it would have meant that Senator Drake would have been paired as voting against the insertion of the provision, and Senator
Zeal would have been paired as voting for its insertion, which was manifestly what he did not intend. In the circumstances, as the pair was of a general character on the Judiciary Bill, and it was understood that Senator Drake would bo voting in the same direction as Senator O’Connor, there was no necessity, of course,’ for the pair to be recorded in the report, ‘ because if it hod to be recorded at all it would have meant the inversion of the original intention of Senator Zeal. I feel - perfectly ‘certain that had he understood that Senator Drake would have voted’ against the proposal for pensions, he would have taken the opportunity of pairing with an honorable senator whom he knew would be in favour of the provision, or would have stayed to exercise his vote. The honorable senator has written to- me a letter in which he expresses some surprise that, after the arrangement which he had made, there is no reference in tho newspapers to the pair which was entered into. Hence this explanation, which is due to him.
– Why not move to have his name entered in the voting list ‘!
– It cannot be done, and if it were entered as a pair it would necessitate the inversion of what was really implied in the arrangement. I merely make this explanation to show that Senator Zeal thoroughly considered that in his absencehis influence would be in the direction, as far as the voting was concerned, of preventing any such provision being inserted in the Bill as was contained in the amendment of Senator Walker.
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The DEPUTY PRESIDENT. - I wish to draw attention to the notices of motion in the names of Senators Higgs, Pearce, and Stewart. In my opinion it would be irregular to deal with orders of the day in the way proposed.’ According to Standing Order 225- ‘
An order of the day is a Bill or other matter which the House has ordered to be taken into consideration on a particular day.
And Standing Order 227 says -
The orders of the day shall be disposed of in the order in which they stand upon the paper.’
It is not, I think, compotent for the honorable senators to anticipate any orders of the day in this way.
The DEPUTY PRESIDENT. - The Senate has directed that these shall be orders of the day for particular days, and the view I am submitting is that it is not competent for the Senate at the present time, and by summary motion in the way proposed - without a suspension of the standing orders - to pass a motion in respect of particular orders of the day. The practice in this matter is laid down in May on pages 247 and 2.48 ; but there is a direct ruling summarized in Mr. Black more’s Speakers’ Decisions on page 88 in these terms -
A resolution as to the conduct of the business ought not to apply to business standing on the paper prior to tlie passing of thfe resolution.
It goes on to cite the case in which that decision was given by a Speaker of the House’ of Commons. Of course, as regards Senator Higgs’ notice of motion, the orders of the day will be called on at half-past twelve o’clock, and he will accomplish the object which he has in view by moving that his order of the day be adjourned to a particular day. But as regards the notices of motion in the names of Senators Pearce and Stewart, when their orders of the day are called on, in due course, it will then be their duty to ask that they be postponed.
– Why not suspend the standing orders ? That is the quickest way of doing it. I move -
That the standing orders be suspended to allow of the orders of the day of private business, now fixed for Fridays, being transferred to Wednesdays, on which days private business takes precedence.
Question resolved in the affirmative.
Motion (by Senator Peakce) proposed -
That the order of the day No. 1 for Friday 14th August, relating to the National Monopoly of Narcotics, be an order of the day for Wednesday, 1 9th August.
The DEPUTY PRESIDENT.- I am informed by the Clerk that the date mentioned by the honorable senator, 19th August, is motion day.
– I think that is a mistake. The understanding was that private business was to be taken in the order in which it stood upon the paper. The 1 4th August was the date for which my motion was fixed. It was understood that the order of private business was not to be disturbed. Consequently, if Senator Higgs’ motion is brought forward on the 12th August, my motion should take precedence on the 19th August.
The DEPUTY PRESIDENT.- I am not aware what the understanding was, but I am informed by the Clerk that the 19th August is motion day.
– It was not the Clerk who arranged the business; it was the Senate that arranged it.
The DEPUTY PRESIDENT.- I regret very much that there is a misunderstanding, but the Clerk assures me that it was in accordance with what the Senate arranged that the honorable senator’s motion was put down for the 26th August.
– Why should the Senate have to give way to the opinion of the Clerk 1 It means putting back my motion a week. This is a breach of the understanding that was arrived at.
– There was an order of the Senate that orders of the day and motions should be taken on alternate Wednesdays.
– But without disturbing the preceding order of business. However, I ask leave to amend my motion, so as to fix order of the day No. 1 for Wednesday, 26th August.
Question amended accordingly, and resolved in the affirmative.
page 3238
– I move -
That there be laid on the table of the Senate a comparative schedule showing the articles and rates of duty payable under the Commonwealth Customs and Excise Acts, and the proposed rates of duty under the “Bill for an Act to provide for a Customs Tariff Preference on goods imported from the Territory of Papua” (British New Guinea).
I never anticipated that the Government would offer any objection to the simple proposal contained in my motion. The Government are about to introduce a Bill to grant a preference to all the goods manufactured in New Guinea to the extent of something like 33 £ per cent. When the Customs Tariff was before the Senate the fullest information was afforded to us. We had volumes of comparative statements showing the duties in operation in Canada, New Zealand, and elsewhere. What object can there be in offering opposition to furnishing a clear statement as to the preference the Government desire to give to goods manufactured in New Guinea 1 I do not wish to enter into the merits of the proposal, but if the Government refuse information such as would be contained in the tabulated statement which I have asked for, I am driven to the conclusion that not only do they wish to.get in the thin edge of the wedge for a Customs Tariff preference for the manufacturesof British India, but that they want to push that policy through in a manner which does not permit of the fullest discussion. When we consider that the exports from New Guinea at the present time may be put under five or six different heads, comprising shells, gold, and a few other products, we -must see that there is somemotive behind the proposal of the Government. The objection of the Government togrant a tabulated statement indicates, to my mind, that they want to pass their measure in such a way that honorable senators may not be fully aware of the great seriousness of the step it is proposed totake. I ask Senator O’Connor to withdraw any opposition to my proposal. It is quite true that I or any other honorable senator may, by taking the Customs Tariff schedule,, make deductions and obtain the information for ourselves. Some honorable senators,, however, may not care to go to that trouble,, and I ask the Government to grant my simple request, so that one of the officers of the Customs Department may be permitted to do the work, and the Government Printer may be authorized to supply us with the necessary printed copies.
– The motion asks that there shall be laid on the table a schedule under the Customs Act of all articles and rates of duty, showing opposite to them the difference or preference proposed to be given in the case of New Guinea. Such a document would certainly take some time to prepare, though perhaps not a’ great deal of time, and it would cost some money to print. If the information desired could be obtained in no other way than that now proposed, I should have consented to treat the motion as formal. Under the circumstances, however, I do not think that any Government would be justified, without obtaining an order from the Senate, in consenting to the expenditure involved. The New Guinea Bill, in regard to these- duties, provides that, notwithstanding anything in the Customs Tariff, there shall be paid on the goods and produce manufactured in Papua, and then imported to the Commonwealth, duties of Customs at rates one-third less than those charged on like goods imported from other countries. In order to get the information desired, Senator Higgs or any other person merely requires to pick .out such articles as the proposed preference would apply to, and deduct one-third from the duties now imposed.
– X thought that Senator O’Connor said just now that a large amount of trouble would be entailed in preparing the return 1
– What I said was that it would take up a certain amount of the time of a clerk, and would cost money to print. The whole schedule of the Tariff would have to be gone through in order to provide the tabulated statement which the honorable senator desires. Any honorable senator who wishes, may make the necessary calculation on the edge of a copy of the Tariff - no trouble would be involved, except some little calculation. But is it necessary that such information should be supplied in the way proposed 1 This is not a matter of very much moment ; but I feel justified in not consenting to treat the motion as formal. When action is taken by the Government for very obvious reasons - they may be right or wrong - it is a pity that honorable senators should take occasion to suggest that there is some motive behind. What motive can there be ? The. only motive is that in our present position we are bound to see that no unnecessary expenditure takes place. I do not intend to oppose the motion if the Senate desire to carry it ; and I do not suppose that the expense would be very much. But whatever the expense, it is for the Senate to say whether it is worth while to incur it.
– I cannot see that any exception can be taken to the motion. The objection of Senator O’Connor is that the printing will involve some cost; and no doubt that is a valid objection. But a proposal to print the return is not incorporated in the motion, which simply provides that the document shall be laid on the table. When the document is produced, it will be competent for the Senate to decide whether it shall be printed, and we can then have an estimate of the cost. As Senator O’Connor has pointed out, it will not entail much time or trouble to prepare the return, and I can see no reason why the motion should not be accepted.
– Senator Higgs would be well advised if he withdrew the motion and substituted a request to the Government to lay on the table of the Senate a statement of the goods imported from New Guinea last year. A simple statement of that kind would be of some service ; but I do not see what good could result from our knowing what would be the duty on jewellery or steam engines if they were imported from New Guinea. I had intended to suggest to Senator Higgs privately that he should put his request in the form 1 have indicated, because we could then quite easily see the possible effects of the proposed preferential Tariff.
– If the motion does not involve the printing of the document, there would not be much expense in preparing it.
– Honorable senators could easily obtain for themselves the information asked for by Senator Higgs. And whether or not that gentleman adopts the suggestion I have made, I shall certainly ask for a return as to the articles imported from New Guinea last year.
– I quite agree with the remarks of Senator Pulsford. What we want is a comparative schedule showing the reductions which will take place on what is imported from New Guinea into the Commonwealth. Where it is obvious that articles are not to be exported from New Guinea into the Commonwealth, information regarding the duties can be of very little interest. I suggest that Senator Higgs amend his motion on the lines suggested.
Senator HIGGS (Queensland). - The return suggested by Senators Pulsford and Matheson, is obtainable in the report of Sir George Le Hunte, the late Administrator of British New Guinea. But it does not afford the information I require, or attain the object I have in . view. Have not the Government been suddenly attacked with an economical fit ? As an old printer, I know that the cost of printing the return I ask for would not amount to more than £2 or £3, if so much.
– It would not be worth 2s. or 3s.
– Piles of other reports and papers are printed at a cost of many hundreds of pounds ; and the latest example we have is the supplementary report of the Royal Commission on the Federal Capital Sites, dealing with the features of the Dalgety area. I suppose that this supplementary report has been produced to appease some one ; and it would appear that persons outside Parliament can get all the printing they require done at the expense of the Commonwealth. But when I ask for a return, which, I believe, will show protectionist members in the Federal Parliament what they are about to do, I am opposed by the Government. I want protectionist members, and those who believe in a white Australia, to see that, under the Government proposal, they will allow people to slip over the narrow strip of sea between’ us and New Guinea, and there utilize the labour of some 350,000 Papuans, in competition with white Australians.
– Does the honorable senator expect that new industries will be started in New Guinea 1
– lean well believe they will be started.
– Absurd ! “
– Listen to the political “ old man of the sea,” who says that the starting of industries in New Guinea is impossible !
– I did not say anything of the kind.
– Senator Fraser, by his interjection, suggests that it is absurd to suppose that new industries will be started in New Guinea. Does the honorable senator not see that if the Bill is to be of any use, such industries must be started: - the Bill is for that purpose, if for any purpose.
– The Bill is to deal with the natural products of New Guinea, which are exported to this Commonwealth.
– If Senator Higgs takes one from three, he must know that two remain - anybody must know that.
– No doubt everybody connected with the free-trade figure factory is aware of that fact. The honorable senator has only to give a turn to the calculating machine, and the result is shown on the disc in front of the apparatus. It may be my particular bent of mind, but I see in this particular proposal of the Government a move–
– Towards free-trade.
– I see a move made by political agents who are pulling the wires some 16,000 miles away. The Government is not prepared to come down and boldly say - “ Gentlemen, let us have a preference Tariff which will allow the goods produced by Hindoos to come into Australia at duties one-third less than are imposed on other goods.” The Government will not do that, but they bring in a Bill to allow a preference in favour of goods manufactured by the Papuans of New Guinea; and they know that once such legislation is passed, the Senate is committed.
– We ought never to have taken New Guinea over.
– I think the honorable senator is right.
– Somebody else would have taken the country over, had we not done so.
– And I should have said - “ Good luck to them ; let them do the best they can with the country.” In my opinion, the fertile brain, which prompted a Minister to introduce a Bill of the kind, had in view that once we were committed to a proposal to allow the produce of black labour in New Guinea to be introduced, in the Commonwealth at preferential rates, we would have no ground for refusing to allow the products of millions of His Majesty’s Indian subjects to be imported on similar conditions. There are only about half-a-dozen products, and those entirely of the primary industries, which are exported from New Guinea to the Commonwealth’ at present. I therefore can see nothing in this but a deep design, and the objection of the Government to havethis printing done seems to me to prove my case. If the Government were really anxious to have the fullest discussion they would send us, as they did during the Tariff” debates, piles of statistics of all kinds, butall that I ask is a simple column to be added to the schedule showing the difference proposed in respect of imports from New Guinea. I desire that the workers in thevarious industries of the Commonwealth, and the members of the Senate and theHouse of Representatives who represent them, should know what is being done when we are asked by a simple paragraph in thePapua Bill to give a one-third preference to. the products of manufactures and industries, in New Guinea.
Question resolved in the affirmative.
page 3240
– I move -
That the Senate desire the Minister for Defence to instruct Sir Edward Hutton to pre»re immediately for the information of Parliament a. full and detailed Statement of the armament and equipment required for the M ilitury Forces of the Commonwealth as ac present constituted, pointing out specifically in what respect they are already efficient, and where they are inadequate ; and dealing with each State individually.
I have already addressed the Seriate twice on the subject of this motion during the discussion on two successive Supply Bills, and it is therefore unnecessary for me to go over all the arguments again. Sir Edward Hutton has pointed out repeatedly that the armament and equipment of our forces are in a shockingly deficient condition. The Minister for Defence is, to judge by his public utterances, of a different opinion. My contention is that it is for Parliament to say who is right, and it is necessary for that purpose that we should have a detailed statement from Sir Edward Hutton as to what the deficiences consist of. Until we have this detailed statement it is impossible for Parliament to deal with the question, or with the Estimates when they come up for consideration, in an intelligent way. When the Estimates are brought up we shall be asked to vote certain moneys, and it will be impossible for us to say whether those moneys are being applied in the best manner possible. It would have been very much easier for me to explain what I desire if General Hutton’s report were available. But in spite of everything that has happened in this con- nexion, honorable senators will no doubt be surprised to hear that that report is not yet available. It is impossible to explain why we should have special difficulty in gettirig this particular report. I speak subject to correction, but I think it was laid on the table in another place some three weeks ago, and a week later it was laid on the table of the Senate. ‘ Just now I asked the messenger to get me a copy, and I was told that copies are not available. I ask honorable senators to decide whether it does not appear that the intention is- that we shall not be allowed to see that report, so long as it can possibly be kept from us. That, to my mind, is only in keeping with the methods which prevail in the Defence Department in respect of every report which Sir Edward Hutton sends in. I shall not speak further on the subject of the motion, but I intend to take it to a division, if necessary.
– I can see no good end which will be served by ordering this return. It is true, as Senator Matheson says, that there has been a report by Major-General Hutton laid on the table in both Houses. Why the honorable senator should complain that he cannot see it I do not know.
– I can see it ; but I cannot get a copy of it. I sent for one just now.
– It is here, and the honorable senator can use it. The information it contains is as available to Senator Matheson as to any one else. Because the paper has not been circulated, the honorable senator lays a charge that there is some deep design on the part of the Department to keep the information from him.
– It is customary to circulate these reports.
– I do not know that it is. I presume that if the Senate has ordered the report to be printed, it has been printed ; and if it has not been circulated, the fault lies with the Government printer. If the paper has not been printed, Parliament is the best judge of whether.it should be printed or not.
– It was laid on the table as a printed paper.
– Was it ordered to be printed by the Senate?
– I do not know.
– If it had been it would have been distributed. The point is that the useful portion of the information which the honorable senator requires is to be found in that report.
– I beg the honorable and learned senator’s pardon ; it is not.
– All the armament and equipment required, and everything necessary to put the force into a proper state of efficiency, is stated there. The honor able senator no doubt will say that particulars are not givenwhich show in what respect the present armament and equipment are inadequate, dealing with each State individually. ‘ What possible good pur-pose could be served by publishing, in the form of a report, the points in which our armament and equipment is inadequate at the present time.
– The Minister for Defence says it is adequate.
– We are now going through the process of reorganizing the forces, in order to make the armament and equipment as adequate and the organization as perfect and efficient as we can, and while that process is actually going on Senator Matheson asks for a return in which particulars shall be given of the points in which our armament and equipment are at present inadequate. What advantage can that be to Parliament or to the public 1 If it is the desire of the honorable senator to publish to the world that there is a difference of opinion between the Minister in charge of the Department and Sir Edward Hutton, surely he may prove that, if it is to be proved, from the report.
– We all know it.
– We do not all know it ; we know quite the contrary.
– It appears in the press.
– I am not responsible for what Senator Matheson’s suspicions may be. I only know what the facts are, and I say we do not all know it. On the contrary, the organization is being carried on so far as Parliament will permit it to be carried on in the way in which MajorGeneral Hutton has suggested. Of course, in connexion with this question of reorganization, it is one thing to lay down a perfect plan and another to provide the money to carry it out. As Parliament has decided on many occasions that no more than a certain sum can be expended in the defence of Australia, whatever scheme of re-organization is adopted must be kept within that.
– Parliament has never refused to vote sums for armament.
– When it has understood the position.
– Parliament has refused over and over again to allow more than a certain amount of public’ expenditure on military services.
– Indiscriminately.
– The labour party has cut down the vote.
– The labour party has not objected to any necessary expenditure on armament, and will not do so.
– I am glad to hear that.
– The best use possible has to be made of the money voted. Can any possible good purpose be served by carrying this motion, when all the information that is necessary for Parliament can be obtained from MajorGeneral Hutton’s report? What good purpose can be served by picking out particular parts of Australia and drawing attention to deficiencies when they are now being remedied as far as possible by the scheme of re-organization which is being carried out. As regards supplies of ammunition and warlike stores generally, they must be regulated by the amount which Parliament is prepared to vote. In addition to this it certainly would be a violation of all well-known principles adopted in dealing with military affairs to publish to the world, any more than is necessary for the purpose of carrying on parliamentary government, any defects which there may be in our military system. When we publish such defects to the world we publish them to our enemies. It is perfectly right that we should give such information upon these subjects as may be necessary for Parliament and for the Government, but we ought not to go beyond that. I do not know to what defects Senator Matheson especially alludes, but I say that we should not depart from the sound, wise, and generally established principle, that defects in our military system should not be made known to the world. It is not necessary for the purpose of supplying members of the Parliament with information in dealing with defence questions, or for any other purpose, that this particular information should be given in any more detailed way than it is to be found in Major-General Hutton’s report. I oppose the motion, because I believe that the publication of such information would do more harm than good. Senator STANIFORTH SMITH (Western Australia). - I should like to know from the Vice-President of the Executive Council whether Major-General Hutton’s report has not been ordered to be printed by the House of Representatives or by the Senate ?
– It has not been ordered to be printed by the Senate.
– I understand that the report was laid on the table of the Senate in a printed form. If it is already printed, why should we not be able to procure copies of it 1 If it has been printed without an order from Parliament, I do not see ‘why we should not be able to get copies of it.
– I asked for directions as to whether I should move that it should be printed, and I was told that that was not necessary.
– Then why should the report be locked up ? Why should we be permitted to see it only one at a time when we might have printed copies circulated. It is a most important document ?
– I understand that the report was ordered to be printed by the Printing Committee the day before yesterday.
– That clears the matter up, and we shall no doubt be able to see the report. I intend to support the motion, because we have a most important question to consider. It rests not with the General Officer Commanding, or the Minister for Defence, but with the Parliament, to decide what money shall be voted for the requirements of the defence of Australia. It is essential that we should know to what extent our armament and equipment are deficient. A report, such as that which is required by Senator Matheson from the General Officer Commanding, would give full particulars. When that information was supplied we should be in a position to vote the money necessary to make our armament and equipment as efficient as we think they should be. At the present time we have no definite information on the subject. We wish to elicit the opinion of an expert of high qualifications, the one who is best fitted to tell us what our requirements are. It has been stated that he and the Minister are not in accord on this subject. We can have the advantage of hearing the views of the Minister expressed in the other House, and we desire to learn the views of the General Officer Commanding. Senator O’Connor has said that it is inadvisable to publish to the world the fact that out armament and equipment are deficient.
– The details in which they are deficient, and that is what Senator Matheson asks for.
– It is not very long since the General Officer Commanding, in a public speech delivered at Adelaide and reported in all the newspapers, stated that we were so deficient in the necessary means of defence that if we had a transcontinental railway built we should be sending men without arms to defend certain portions of the Commonwealth. There could not be a more dam- aging statement than that made, if we desire that other nations shall not know our defenceless condition. I believe that our- requirements with regard to rifles, ammunition, and munitions of war will be very large, and that the Senate will willingly vote any sum which it considers necessary to put our forces in a satisfactory condition. But when the civil and military heads of the Defence Department do not seem to be in accord as to what our requirements are, and we are not to be supplied with any information from the expert authority, we are not in a position to vote money to supply the deficiencies. It is only reasonable that such a report should be furnished to the Senate, and I cannot understand why Senator O’Connor should oppose its production.
– If any one is to-be blamed in this matter, it is the General Officer Commanding for the speeches which he has made at various public functions, because if anything is likely to create a feeling of uneasiness it is such speeches. I think that the Senate has a right to know what he is alluding to when he says that we have an army without arms, and that, in certain respects, it could not take the field. I consider that Senator Matheson, or any one else, has a perfect right to say to the Government - “ Before you ask us to vote any money let us know in what respects we are deficient.” As the Government have drawn up a new basis of organization, it is necessary to alter the wording of this motion. Therefore, I move -
That the words “ as at present constituted,” Une 6, be omitted, with a view to insert in lieu thereof the words “on the basis of the establishment approved by the Government. “
If the motion is amended in that way it will elicit a report on what is required for the Defence Force on the new basis of organization.
– Does the honorable senator propose to strike out the rest of the motion ?
– No ; because! think we have a right to know specifically in what respect the armament and equipment of our forces are deficient. Senator Fraser has interjected that the labour party cut down the military expenditure. What we objected to was an army without arms. We objected to voting £700,000 a year for an army which the General Officer Commanding told us had bo arms to fightwith. If the Government come to us and say that a sum of £100,000, or more, isnecessary in order to arm the existing forces the labour party will vote solidly in that; direction. But we shall not vote money for an army which would be practically useless in time of war. We have never refused to vote for necessary armament. I understand that the return which has been laid on the table does not give the information which Senator Matheson by his motion desires to supply us with. What harm can be done by Parliament and the general public knowing what are the requirements of the forces? The position of Senator O’Connor is that we know that we are in an unsafe position, but like the ostrich, when pursued, we wish to put our heads in the bush.
– And let the wind play fantastic tricks with our feathers.
– I am not of a poetical turn of mind like my honorable friend. There is no wisdom in pursuing that policy, and the best thing we can do is to learn exactly where our weakness lies, and then see whether it can be remedied.
– I rise to support the motion as proposed to be amended. It must be evident to all of us that there is something radically wrong about our Defence system, when the General Officer Commanding and the Minister for Defence are not working as harmoniously as they ought. On the one hand, the Minister has made particular statements ; on the other hand, his statements have been contradicted by the General Officer Commanding, and I think that Parliament is entitled to the information which Senator Matheson asks for. Senator O’Connor puts in the plea that it is not desirable to make the facts public. I suppose his meaning is that we ought not to expose our weakness ; that we should not demonstrate to possible invading powers how unprepared we are to meet them. My opinion is that any foreign power which desires to invade Australia knows a great deal more about our condition of preparedness or unpreparedness than we do. These powers take precious good care to get all the information which it is possible to obtain. They have every means of obtaining the information, but we cannot get it. Why cannot the Parliament of the Commonwealth be trusted in a matter of this kind ? Why cannot the. public be taken into the confidence of. the Government ? My belief is that the one incompetent member of the Government is the Minister for Defence. I do not think he has any of the qualifications desirable in a gentleman holding that position, and he ought to be put out of it at the earliest opportunity. We get nothing but bluster, blow, and bounce from him. We want something else from a man at the head of the military administration. We are spending a million per annum on defence, and yet the General Officer Commanding comes forward and tells us that we have no arms, and no equipment. We are spending money on the men, but of what earthly use is a man on the field of battle unless he is armed ? We might as well put up a prop. I hope the Senate will insist upon being supplied with this information. What harm can be done? None, so far as I can see. Senator O’Connor says that possible opponents may know our condition. It is known to them already. The members of this Parliament are responsible to the community for the condition of our defences. If I tell my constituents that I cannot get any information with regard to preparations for defence they will say - “What earthly use is there in our sending a man like you to Parliament? We elected you to get information on these matters, to see that our interests are attended to, to look after the affairs of the country.” Yet when we come here desiring to get information the Government places every possible obstacle in our way. It lies entirely with the Senate to say whether the Government is to carry on this policy of concealment, which is after all only a refuge for incompetence. I’ trust that honorable Senators will vote for the niotion as proposed to be amended. It can do no harm, and it may bring about a great deal of good.
– I hope that honorable senators will support Senator Matheson in his inquiries. I think it will be generally acknowledged that it might have saved the British Empire £1,000,000 or so had the British people known what a bungling concern they had in the shape of army administration. It is not when we are attacked that we ought to find out whether our men have gone into the field sufficiently armed. It is only right for honorable senators to make these inquiries. It is only right that the public should know what ought to be done. We know very well that the public desire that economy should be practised in almost every direction. But we also know that if the public had the knowledge that the members of the Defence
Force were inefficiently armed, and that in every other direction we should have a very poor show, even with a weak enemy, they would at once come to the assistance of the Parliament, and urge upon it the necessity of remedying the evil in that direction. I hope that the motion will he amended as proposed, and that the information will be obtained as soon as possible.
Amendment agreed to.
– I am not sure whether what Senator Matheson desires will be obtainable under his motion.
– Does the honorable senator mean that Sir John Forrest will not give the necessary instructions t
.- The question is rather more complicated than that. What I gather concerning the. intentions of the mover, is first of all that he wants the Senate to know what is required to put the Commonwealth in a position of security as regards defence. That is a very large question, and involves many intricate points. Secondly, I take it that he wants to know what should be obtained at present, and what is absolutely necessary to be done.
– In the opinion of the General Officer Commanding.
– Yes, in the opinion of the expert who has been brought from England to advise’ us. Thirdly, having secured that information, the honorable senator wants to .know to what extent is the Commonwealth capable of beginning to put the Defence Force, having regard to what is immediately necessary, into a practical condition of utility. Will those three points be covered by the motion? If Senator Matheson is satisfied that they will I have no objection to urge. I am not saying anything hostile to him, but I want to see whether, by amending his motion, he can get the information, which I do nob think he will obtain as it stands. It is too general. He should amend it so as to indicate the particular information that we ought to have. We have it from a quarter from which I was very glad ito hear the statement emanate - namely, the labour party - that so far as equipment and armament are concerned they are prepared to support any expenditure to put them in a satisfactory condition. If the honorable senator is satisfied that his motion will secure the information that is required, I am prepared bo support him.
Senator MATHESON (Western Australia). - In reference to Senator Cameron’s point, I am satisfied that the motion will secure the information which we all require. The General Officer Commanding has already laid it down that £480,000 must be spent upon equipment to put our forces into what I may called a mobile .condition, in which they can move freely and be thoroughly well armed and equipped for service. The Senate has not yet got the data as to how that sum is made up. As to what Senator O’Connor has said with reference to Sir Edward Hutton’s annual report, I may point out that that report does not go sufficiently fully into the question bo enable us to judge of what we are doing when we vote on the Estimates. The information which I expect to obtain as a result of my motion will put us in a position to vote intelligently when we reach that stage. The Vice-President of the Excutive Council said that Parliament refused to allow more than a certain amount of money to be spent. That is literally true. But Parliament, as every honorable senator must remember, had to vote in the dark. The Minister for Defence had gone away, and the office of Minister was in commission. “ Sir William Lyne, who was temporarily at the head of the Department, did not know anything about it, and was unable to give any information concerning details. He simply accepted a lump-sum reduction without any protest, whilst practically admitting that he knew nothing about the position. Another point raised by Senator O’Connor was that in publishing to the public, we publish to the enemy. I submit that it is very much better that the public and even the enemy should know what are our weak points while we are in a position to remedy them, than that they should be discovered when we are absolutely at war, and nothing can be done in the way of remedy. That is my answer to the suggestion that it is dangerous to the public weal to publish this information.
Question, as amended, resolved in the affirmative.
page 3245
Senator O’CONNOR laid upon the table the following papers :-
Seal of Government of the Commonwealth.
Supplement to Report of Royal Commission on Federal Capital Sites.
page 3246
In Committee (Consideration resumed from 6th August, vide page 3 1 SO) :
Clause 66- -
No execution, or attachment, or process in the nature thereof, shall be Issued against the Commonwealth or State in any such suit ; but when any judgment is given against the Commonwealth or a State the registrar shall give to the party in whose favour the judgment is given, a certificate in the form of the schedule to this Act, or to a like effect ; upon which Senator 0’CONNOR had moved by way of amendment -
That all the words after “suit,” line 8, be omitted.
– Honorable senators will recollect that when we adjourned last evening some discussion had been raised as to clauses 66 and 67. The point involved was this : These clauses provide for obtaining the fruits of a judgment from the Commonwealth or a State, in cases where the Commonwealth or a State is a party. Following the wellknown rule, in all the States except New South Wales and Queensland, and also the rule followed in Great Britan and many * other countries, it was proposed to provide that there should be no execution or attachment or process of that nature issued against the Commonwealth or a State, but that there should be another way in which the money due under a judgment should be paid. I proposed, when the matter first came up for discussion, to strike out all the words after “ suit,” because it appeared to me that in the form in which the clause stood those words really meant nothing, and that it would be very much better to confine the clause to the first part of it, which prohibited execution or attachment or process against the Commonwealth or a State.. Senators Harney and Matheson and others seemed to take the view that there was no reason, why the State or Commonwealth should not be put in exactly the same position as an individual - that, no matter what the amount might be, there was no reason why, if it were not paid within a certain number of days, execution should not be issued with all the usual consequences.
- Senator O’Connor did not seem to like that.
– I did not ; and I think any one who has for one moment thought of the difference there is between the State - that is, the people of a State or Commonwealth - and a private individual would say that it was a matter for serious consideration. However, I see that there is a real reason why we should give some kind of remedy which is enforceable ; and since the adjournment last night I haveprepared amendments, which, I think, will carry out the wishes of honorable senators opposite so far as can be reasonably expected, and yet will prevent the consequences which must follow from adopting ‘ the ordinary remedy, as against an individual. I firstpropose to ask leave to withdraw the amendmeat nov before the Committee, and then to move an amendment, that after the word. “ against “ in the second line, the words- “ the property or revenues of “ be inserted. Then in clause 67, I intend to move that all the words after “ Commonwealth “ beomitted, with a view to inserting the following :- or a State, the Treasurer of the Commonwealth or of the State, as the case may be, shall satisfy the judgment out of moneys legally available. These amendments will place a litigant, whohas succeeded in obtaining a judgment against the Commonwealth, in the position that immediately the certificate is issued, he may ask the Treasurer to carry out the judgment by paying the money. It will then become the statutory duty of” the Treasurer to pay the money out of moneys legally available. Of course, a Treasurer cannot pay except out of moneys legally available, which means moneys appropriated by Parliament for the specific purpose, or moneys which are in his hands in such a way that they may be legally used for the purpose of satisfying a judgment. If the Treasurer refuses to carry out his statutory duty, the High Court has power under a. clause, which we have already passed, toissue an order compelling him to do so. That will enable all the circumstance,* to be taken into account, which would be impossible in the case of an execution issued in the ordinary way. The High Court will, for instance, consider whether or not thereis money legally available. The mere statement that money is not available will not be sufficient; the Treasurer will have to satisfy the Court that money is not legally available. If it is legally available he W1 have to pay, or take the consequences which fall on a person who fails to carry out an order of the Courts or to discharge a statutory duty. If money is not available, no Court. will make an order, and then Parliament will have to take the matter up and vote what is necessary.
– If there were an advance of, say, £100,000, the Treasurer might pay out of that?
– That depends on the terms on which the advance was grantad by Parliament. No matter what legislation we may pass, we cannot go behind the section of the Constitution which provides that no money shall be paid out of the consolidated revenue, unless appropriated by law.
– Provision would be made in an Appropriation Bill.
– I presume Parliament would do that ; but we cannot get behind the section of the Constitution to which I have referred. It seems to me that the amendments I have indicated form a fair compromise.
Amendment, by leave, withdrawn.
Amendment (by Senator O’Connor) proposed -
That after the word *’ against,” line 2, the words “ the property or revenues of “ be inserted.
– As the senator who raised the difficulty, I think that the compromise now proposed meets the objections which were expressed last night. The Bill, as it stands, would render a judgment against the Commonwealth so much waste paper. I had no idea of asking for more than that judgment should be satisfied when money was legally available ; and in the class of cases I had in my mind, money always will be available. I was not referring to cases of millions, but to cases in which £500 or £600 may be claimed in connexion with public works, and so forth.
– The effect of the amendment is, that a creditor will have to wait until Parliament meets and votes the money.
– No; the amendment does what the Bill did not before do ; it makes an individual responsible - an individual who may be punished for disobeying an order of the Court - and that is all we require. Under the amendment as now proposed, the first thing necessary is that the money shall be available ; and if it is not available, then the creditor must wait for action by Parliament. If the Treasurer refuses to pay, then under the Constitution it will be possible to get a mandamus against him, and he may be attached and put into prison like any other person. The amendment makes it pretty certain that where a Treasurer has money available he will pay at once.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 67 -
On receipt of the certificate of a judgment against the Commonwealth, the Governor-General may cause to be paid, out of moneys to be provided by the Parliament, the amount of such damages or costs as are awarded to such party, and may perform any decree or order pronounced or mode by the High Court in the suit.
Amendment (by Senator O’Connob) proposed -
That all the words sifter “ Commonwealth,” be omitted, with a view to insert in lieu thereof the following words - “or a State, the Treasurer of the Commonwealth, or of the State, as the case may be, shall satisfy the judgment out of moneys legally available. “
– It is provided that the moneys must be made legally available. Do I understand that if the Government of a State or of the Commonwealth do not take the necessary steps to get parliamentary acquiescence in the” payment of the money, it will be possible for a suitor to go to the High Court and compel the Government to ask Parliament to vote the money?
– No ; a suitor will go to the High Court in order to punish a Treasurer for not satisfying the judgment.
– That is the the same thing ; the Treasurer is punished for contumacy ?
– Yes.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 68 and 69 agreed to.
Clause 70 -
– A difficulty is raised by this clause. The time in which the party is to apply is within fourteen days, and before the jury is sworn. Very often a person is committed two or three days, or even the very daj’, before he is to be tried, and the jury is sworn. He would, according to this, have to apply either to a Justice in Chambers or to a Supreme Court. That might be very inconvenient, because, in Western Australia, at all events, the Supreme Court rarely sits, and for this purpose a sitting might be required within twenty-four hours. I suggest that the words “ a Judge of “ should be inserted after the word “ to,” line 5.
– I do not think it is provided otherwise. I have no objection to that.
Amendments (by Senator Harney) agreed to -
That after the word “to,” line 5, the words “ a Judge of,” be inserted.
That the word “Court,’ lines 8 and 12, be omitted, with a view to insert in lieu thereof the word “Judge.”’
Senator HARNEY (Western Australia). - I have another suggestion to make in this clause, to carry out the same purpose. The idea I had in submitting the amendments to which the Committee have just agreed was to render it possible for persons who require counsel to defend them to make an application speedily. There is another provision in the clause which places a difficulty in their way. Honorable senators will see that, if it is considered desirable in the interests of justice that such an appointment should be made, “ the Justice or Judge shall certify this to the Attorney-General.” There might be some difficulty in certifying the matter to the Attorney-Gen ral. Why should we not add after the word “AttorneyGeneral “ the words which are to be found in the first sub-clause, “ or such other person as the Governor-General appoints in that behalf.”
– The AttorneyGeneral can always be communicated with by telegraph. What the honorable and learned senator proposes involves the payment of money, and the person authorized to prosecute for the Crown has no authority to deal with matters of that kind.
– The honorable and learned senator is not disposed to allow the appointee of the Governor-General to have the same power as the Attorney-General in this case ? I move -
That after the word “Attorney-General,” lines 12 and 13, the words “ or such other person as the Governor-General appoints in that behalf “ be inserted.
That is merely carrying further the vicarious functions of this officer.
– This officer would not be specially appointed for the purpose of dealing with these matters. I think that what the honorable and learned senator intends is that it should be the person who holds the permission to prosecute who should have this power.
– Yes.
– I do not think that is necessary ; we cannot provide for every possible detail. What power would the person commissioned have to make arrangements’! The clause provides that under certain conditions the AttorneyGeneral may, if he thinks fit, “ cause arrangements to be made for the defence of the accused person.” That means that somebody must be. retained to defend him, and that an obligation must be incurred to pay for the defence. . The person commissioned to prosecute cannot be supposed to pay for the defence out of his own pocket ; the payment must come from the public funds, and he must communicate with the AttorneyGeneral before he can make those arrangements. After all, is it not better, to deal with the responsible person, who is the AttorneyGeneral ? As soon as the Judge makes the order the person prosecuting, if he is not the Attorney-General himself, will communicate at once with the AttorneyGeneral to get authority to make the necessary arrangements. There might be a general authority given in prosecuting to make these arrangements.
Senator HARNEY (Western Australia). - It is true that the Attorney-General should always take the responsibility as the person who pays the money. But, if he has a representative in these cases, the departmental instructions could be given to the representative to make these arrangements. However, if the Vice-President of the Executive Council thinks it a matter of’ moment to resist the amendment, I will notpress it.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clauses 71 and 72 agreed to.
Clause 73 -
– This clause provides that when any person is indicted for any indictable offence against the laws of the Commonwealth the Court before which he is tried “ must,” on the application by or on behalf of the accused person, reserve a question of law. I think that a verbal amendment is necessary here. We do not often see the word “ must” used in Acts of Parliament, and I think it is preferable to use the word “ shall.”
– “ Shall” is the usual word.
Amendment (by Senator Harney) agreed to -
That the word “must,” line 3, be omitted, with a view to insert in lieu thereof the word “shall.”
Senator HARNEY (Western Australia). - It is further stated in the clause that the Court may in its discretion either before or after judgment without such application reserve any question of law.
I suggest that the clause should read - the Court before which he is tried shall on the application by or on behalf of the accused person made before the verdict, and may in its discretion after the verdict, reserve any question of law.”
– There is a case contemplated to which Senator Harney has not alluded. No application may be made at all by or on behalf of the accused person, but the Court may consider that a point of law involved ought to be taken on his behalf ; and this will give the Court power to take thataction.
– That is not very important, but a matter of greater import, ance involved in the clause is this : Jt is provided that any question of law which arises on the trial may be reserved - for the consideration of a Full Court of the High Court ; or of a Full Court of the Supreme Court of the State.
What jurisdiction has the Supreme Court of a State to hear such an action 1 The words used should be “or of a Full Court of the Supreme Court of a State exercising Federal jurisdiction.” If we were to Say that a Commonwealth Court could reserve a case for a Full Court of the Supreme Court of the State,” the Supreme Court of the State would hear it in its State jurisdiction, subject to no limitations whatever ; or it might refuse to hear it at all. The Court could say that its jurisdiction was not that of a State Court exercising Federal jurisdiction but of a State Court in its own right, and as a State Court in its own right it had no’ jurisdiction to deal with Federal matters. The Court might say that we as legislators were not empowered under any Act of Parliament to enable a foreign court to reserve their cases for them. To all intents and purposes a Commonwealth Court is foreign to a State Court, and under this clause we should have a foreign court telling persons to go to a State Court, and reserving cases for a court outsideof its jurisdiction.
– Yes ; but the words- “ the laws of the Commonwealth “ show that this must be Federal jurisdiction.
– No ; because we are dealing with -the laws of the Commonwealth ; and what the honorable and learned senator contends is that in the case of a decision the Judge may reserve a point for a Commonwealth Court or for a foreign court.
– It is Federal jurisdiction.
– I know that that is inferred, but the clause does not say so, and counsel for the Crown, when such a case isbrought before the SupremeCourt of a State, may say - “ I object to your jurisdiction.” When the clause is looked at, itwill be found that the jurisdiction is given to the Supreme Court of the State,- and counsel may then say - “ I know that, but it was ultra vires of the Commonwealth Act to give that jurisdiction.” The Court would say - “So it was,” and the appeal would not be heard at all. The meaning is governed by the words “ the laws of the Commonwealth,” but we are in this clause directing a Commonwealth Court to reserve a point of law for a foreign jurisdiction, and we have no power to do that. There is another point to be considered. Even, assuming that the Supreme Court of the State would accept this new jurisdiction which was cast upon it by a foreign body, then a suitor before that Court would have a different status from what he would have if it were described as a “ Supreme Court exercising Federal jurisdiction,” because where it is so described there are certain limitations and privileges set out in clause 35. All these would be excluded.
– It is intended that. this shall be exercised as a Federal jurisdiction, and the only question is whether we need to insert any words here.
– My honorable and learned friend knows as well as myself the trouble which arises in courts from little ambiguities.
– I agree with the honorable and learned senator that it ought to be made perfectly clear ; but the difficulty is that if we insert words in this particular place, and not in other places, we shall make a difference in the meaning which we did not intend. The jurisdiction of the High Court, except that taken out by the “ exclusive” clause, is vested in the Supreme Courts of the States by virtue of clause 40 and other clauses. This clause only provides machinery by which a point of law goes from the Supreme Court of a State to the Court exercising Federal jurisdiction : it does not give any independent jurisdiction.
– The two Courts being in such close conjunction, it seems desirable to make the meaning clear.
– I think it is clear already. The only way in which the Supreme Court of a State can have jurisdiction conferred upon it is by the second subclause of clause 40 -
The several Courts of the States shall, within the limits of their several jurisdictions, . . . be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction can be conferred upon it.
If honorable senators will refer to the section of the Constitution giving power to the Parliament to confer Federal jurisdiction, they will see that it can be conferred in cases arising out of the laws of the Commonwealth. This is one of those, cases in which Federal jurisdiction can be conferred. By clause 40 it has been conferred on the Supreme Courts of the States, and it must be exercised by virtueof that power. This clause does not confer the jurisdiction, but simply provides a method by which any point of law will go to the Supreme Court, which has been invested with Federal jurisdiction. Unless we are to use the words “ Supreme Court invested with Federal jurisdiction,” whereever the term “ Supreme Court “ is now used, we 3hall create a difficulty. If those words “ were used in this clause, and not in others, they would give rise to all sorts of ingenious arguments to prove that something was meant quite different from that which was intended.
Clause, as amended, agreed to.
Clauses 74 to 86 agreed to.
Clause 87 (Rules of Court).
– I wish to ask Senator O’Connor whether it is worth while to put in a paragraph empowering the Justices to regulate appeals under clause 40 ? It will be remembered that that clause gives the right of appeal from the small courts. It might be found desirable to regulate the amount in respect to which appeals should be made, or it might be necessary to restrict or regulate the appeals.
– My honorable and learned friend will see that that is quite sufficiently provided for in paragraph (h), whieh covers the Courts of Federal jurisdiction as well as the other Courts. I do not think it is necessary to amend the clause for that purpose.
Clause agreed to.
Clause 88-
Every Rule of Court made in pursuance of the last preceding section shall be laid before the Senate and the House of Representatives within forty days next after it is made if the Parliament is then sitting or if the Parliament is not then sitting then within forty days after the next meeting of the Parliament ; and if an Address is presented to the Governor-General by either House of the Parliament within the next subsequent forty sitting daj’s of the House praying that any such Rule may be annulled the GovernorGeneral may thereupon annul it; and the Rule so annulled shall thenceforth become void and of no effect but without prejudice to the validity of any proceedings, which have in the meantime been taken under it.
– I mo ve -
That the words “within the next subsequent forty sitting days of the House,” lines 9 and 10, be omitted..
These words impose an unnecessary limitation on the right of the Parliament to object to a regulation. No good object is served by limiting its right in that respect, because a later part of the clause provides that if an objection is raised, it shall be absolutely without prejudice to any action which has been taken previously. Nobody can be in the least degree hurt if, at any time, the Parliament should request the GovernorGeneral to annul a regulation. We are all well aware of the way in which regulations are laid on the table. Nobody is paying any particular attention, and the Minister in charge of the Department mutters a few words, which are very often inaudible, and hands the regulations to the Clerk. I do not refer to Senator O’Connor, but to Senator Drake, who very often mutters a few words which T do not catch. The regulations pass into the limbo of forgotten documents, and, until some case arises, they are unknown.
– I am sure that the honorable senator always reads the account of the proceedings in the Senate.
– The honorable and learned gentleman has hit a very sore point. The Journals of the Senate are not supplied tome, bub are sent somewhere else, and consequently I do not see the record of the proceedings. In any case, regulations get laid on the table, and no one knows anything about them until a case arises. It was only by the accidental omission of limiting words from the corresponding provision in the Public Service Act that an honorable senator was recently able to take objection to a regulation. If this limitation had found a place in the Act, it would have been impossible to raise any question on the public service regulations. I see no reason why’ we should be limited to 40 days.
– There is a very good reason for making this limitation as the honorable senator will see if he considers the matter. These are the operative rules for the procedure of the Court. Its work must go on. Nothing much will be done under them for a period of 40. days. But how long are they to remain on the table 1 Suppose that Parliament sits for a long period - I shall not say for such a period as it sat last session, because God forbid that that should ever recur, but for a period of six, seven, or eight months - are the rules bo lie on the table and not to be operative at all, or, if they are to be operative, in such a -way that they may be declared void afterwards 1
– The last portion’ of the clause provides that they shall be operative until an objection is made.
– I know that the clause provides that -
The rule so annulled shall thenceforth become . void and of no effect, but without prejudice to the validity of any proceedings which have in the meantime been taken under it.
It does not affect anything which has been done under the rules. I think the honorable senator will see at once that it puts all the persons who are acting under the rules in a condition of uncertainty as to what is going to be done. That is the reason why, where the regulations under an Act have to be laid on the table of either House, and have to be acted upon, a time limit is fixed. We allow the Judges to make the rules. Now, rules have to be constantly made as the occasion arises. It may often be found in actual practice that a rule is altogether unsuitable - that it works an injustice. To remedy that injustice as soon as possible, a. regulation is made, laid on the table of each House, and if the Parliament says nobbing about it within 40 days, it becomes operative. What purpose would the honorable senator effect by the proposed alteration? His reason is that honorable senators may not be aware that the rules have been laid on the table, and therefore may not be able to take any action.
– And to preserve the right of Parliament.
– It is perfectly proper to preserve the right of Parliament.. But it only exists to do the business of the country, and it must have regard, in the exercise of its right, to the convenience and the interests of the people. It would be strongly against the interests of the people if it were impossible to lay a new code of rules upon the table without a. certain period being fixed when they could come into operation. We might as well hand over to Parliament the power of initiating these rules. Those who are acquainted with the practice of the courts will bear me out that the issuing of new rules is of immense importance in the interests of litigants, and if there is an indefinite period for their coming into operation injustices may be done. There may be no power of remedy in consequence of the uncertainty. Suppose we have three sitting days per week. Forty sitting days will then mean a considerable period.
– I have a great deal of sympathy with theamendment proposed by Senator Matheson..
If there is one corner of our national administration that is covered with dust and cobwebs, and into which it is desirable that the light and the air of heaveii should be allowed to enter, that corner is our administration of justice. The difficulty of obtaining justice, the delays placed in the way of suitors, and the enormous expense have grown to be a public scandal. The lawyers may laugh, because if any one benefits from this state of things they certainly do. If I could only impress people with my ideas of the madness of going to law, there would not be so much litigation for the benefit of the lawyers. But seeing’ that people will enter upon litigation, and that injustices are often done, it is extremely desirable that justice should be speedy and cheap. It. is a beautiful fiction that justice is free. But when an unfortunate litigant appears at the door of the justice hall, he finds that there is a barrier between him and the seat of justice. There is a door which can only be unlocked with a golden key- and the key has to be 22 carat gold at that,, with very little alloy in it. The position of things is growing to be a grave public scandal, and we want, if we can, to remedy it. I admit at once that the obstacles in the way are very great, but if we never try we shall never accomplish anything. I find that under these Rules of Court, the Justices have full power to. prescribe and regulate fees. It is extremely desirable that Parliament should have some voice in the fixing of fees. They are too high.
– Parliament can do so.
– But 40 days is an insufficient time. Parliament should fix the fees, and if the members of the legal profession are not satisfied with what Parliament does, they can go ‘on strike and appeal to the Arbitration Court.
– But we are not registered as a trades union which would come under that measure.
– We shall have to find ways and means of compelling the lawyers to register.: If we cannot accomplish our end in that way, we will try by a flank movement to break down their union, which at present stands in a great measure between the people and the obtaining of justice, and which is a menace to the welfare of the Commonwealth. We hear a great deal of shearers’ unions, miners’ unions, and shoemakers’ unions, but they are paltry and beggarly concerns compared with the lawyers’ ‘ union. It is desirable that Parliament should have some supervision over these gentlemen. The Judges have been practising lawyers themselves and are in sympathy with the profession, not with the public.
– Dog does not eat dog.
– No ; dog eats cat. Notwithstanding whatthe Vice-President of the Executive Council has said, the time should be extended from 40 days to the entire session. We know what happened in connexion with the Public Service Regulations. They were laid upon the table, but they were not placed in the hands of honorable senators. They were entirely overlooked until a few weeks ago. As to what the Vice-President of the Executive Council says with regard to a long period placing the officers of the Court in a continued state of uncertainty, I remark that we are all. in a condition of uncertainty. Life itself , is uncertain.
– It is the public who have to use these rules.
– The public are interested in having cheap and speedy justice. The lawyers profess to be very much concerned about the interests of the public. They are concerned for the- public in the same way that the wolves are concerned that the sheep shall be fat. The public will not be injured by an amendment of he character proposed. If the rules cantbe hung up for 40 sitting days, they can be hung up for the entire session. The courts can work very well in the meantime. The Government might very well agree to extend the time.
– I require a good deal of my native courage to rise after the castigation which has been administered to the members of the profession to which I happen to belong.
– If Senator Stewart were in trouble to-morrow he would send for the honorable and learned member.
– I would if I had a bad case.
– When Senator Matheson first drew my attention- to this matter, it seemed to me that the limitation was rather an unnecessary one, but, on reading the clause carefully, I have changed my mind. There is nothing so important in the administration of justice as that there should be certainty not only as to the law, but as to the decisions and rules under which the Courts act. That certainty is necessary for the practical purpose that people come to lawyers and ask for their advice, and that the only way in which sound advice can be given is by having a sound basis, one that is not shifty in any respect. Lawyers are asked to advise upon the merits of a case, and those merits must be certain, in order that the advice can be relied on. Procedure and practice may determine whether a litigant can or cannot raise a certain point, whether the certain period has not expired, or whether certain interlocutory steps have not been taken. Therefore the rules are undoubtedly connected with the law itself; and the same policy which makes it advisable to have the law certain both as to decisions and Acts of Parliament makes it equally desirable that the procedure which moulds togetherthe branches of the law shall be certain. I take the 40 days to be a probationary period. The rules will’ be laid upon the table of the Senate, and, if they are not objected to within 40 days, lawyers will be able to advise their clients that a certain procedure can be adopted. If the rules were to be laid before Parliament for the session, and the session were a long one, legal advisers would be in a condition of doubt as to the basis upon which they should advise It is necessary to fix some period, and 40 days seems to me to be a reasonable period.
Senator MATHESON (Western Australia). - I recognise, after what Senator Harney has said, that my amendment might operate prejudicially to the public. I was moving in the interests of the public ; and therefore, with the assent of the Committee, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Clause agreed to.
Schedule agreed to.
Postponed clause 3 -
The Claims Against the Commonwealth Act 1902 is hereby repealed.
– When I was engaged as Acting Chairman, I asked that this clause might be postponed because I desired to move an amendment. That amendment was that this Bill should come into operation on the 1st January next. I am informed, however, that there are objections to that course. My desire was, as it always has been, to save the taxpayers’ money if I could possibly do so, without causing inconvenience. Although I am not quite convinced that there is any necessity for this Bill, the will of Parliament seems to be that it should come into operation in a short time, and I have no desire to embarrass Ministers in any way. It might be argued that Judges could be appointed within a month or two, their appoinfments to take effect as from a later date. But probably any intention in that direction cannot be carried out. Then there is the idea that it would be as well to appoint the Judges while Parliament is sitting, so- that honorable members might have some voice in the matter, if it were thought that undesirable men had been chosen. I do not anticipate for a moment that Parliament will have any ground for complaint in that regard, but if some honorable senators are of a contrary opinion I do not desire to prevent Ministers bringing this Bill into operation when they choose. All I desire is that no appointment of Judges, registrars, or other court officials shall be made until the necessity arises. What I mean is that I hope these appointments will not be unduly pushed on ; but, under the circumstances, I am not prepared to move any amendment.
– If the Claims Against the Commonwealth Act 1902 be repealed, will claimants against the Common wealth have no opportunity of taking action until the High Court is established?
– Immediately this Bill comes into force the temporary Claims Against the Commonwealth Act ceases to operate. This Bill enables any individual or State to sue the Commonwealth, and in a State Court; and the provisions of this Bill will immediately come into operation whether or not a High Court be constituted.
Clause agreed to.
Senator WALKER (New South Wales).I move -
That the following new clause be inserted : - “This Act shall not commence before the first day of January in the year of our Lord nineteen huudred and four. “
When I drafted this clause I thought it would agree with the date on which the Claims Against the Commonwealth Act expires. I thought it better that Parliament should have the advantage of the opinions of members of the Commonwealth Parliament before any appointments were made : but if the general feeling is against my pro- .posal I shall not proceed with it.
– I do not think that Senator Walker ought to withdraw the proposed new clause without taking the sense of the Committee. It appears to me that there is no reason for hurry.’ Even if the Judges be appointed as soon as the Bill passes there is no reason why all the subordinate officers should also beselected. There is to be a registrar and marshal of the High Court and deputymarshals and deputy-registrars, along with a host of other minor officials. What is the use of running the Commonwealth into an -enormous expense of nearly £1,000 a week ? If we can save a few thousand pounds, it is our duty to do so ; at any rate, we ought to be given some little time to reflect. I am not making these remarks with any view of interfering with the Government in the appointment of the principal officers, but it would be monstrous to use this measure for the purpose of immediately appointing a whole army of officials.
– That phase of the question can be dealt with when the Estimates are before us.
– Hear, hear !
– Senator McGregor is an extremely sanguine man if he thinks that this matter can be effectively dealt with on the Estimates. When objections are raised to the expenditure provided for in the Estimates, the Government make explanations which appear reasonable at the time, and the items are passed ; and it is perfect nonsense to salk of reforms being achieved in that way. There might be some intermediate course pursued, and I suggest 3rd September as a compromise.
– I am quite willing to accept that date.
– What is the use of such a provision ?
– It was estimated at the Adelaide Convention that the new expenditure of the Commonwealth would not be more than £300,000 per annum, but I believe that the expenditure is now over £400,000.
– No.
– My figures may not be strictly accurate, but we are alarmingly close to an expenditure of £400,000 ; and if this Bill be passed that figure will be exceeded very considerably. Honorable senators should consider the’ taxpayers just as much as they consider the servants of the Government. We ought not to be taxed to death, though that is a state of affairs which we are approaching at an alarming rate. The Commonwealth, instead of being the most lightly taxed community in the world, will soon be the most oppressively taxed.
– The States Governments have not carried out their part of the bargain in regard to Federation.
– That is “drawing a red herring” across the track. The States Governments have made appointments which they cannot repudiate. In Victoria the pension bill alone is about £500,000’ per annum, and the position is becoming really most serious. With” an income tax of ls. 4d. in the fi, and such a pension bill as I have mentioned, is it any wonder that people are going away to South Africa ?
– What does that expenditure mean to each person in the Commonwealth ? Twopence or threepence per head.
– Possibly this taxation does not affect Senator Harney, who lives in the petted and pampered State of Western Australia, but it affects us very seriously in Victoria. If the suggestion T have made were carried out, it would not affect the Government to any great extent, while it would certainly assist the taxpayers, and show that the present Administration are bond fide in their attempt at economy.
– I am prepared to trust the Government, who will, I believe, exercise economy in every possible direction. It is not wise to tie the hands of the Government in matters of this sort; and, besides, the 3rd September is only a few weeks hence. I can guarantee that the Bill will not come into active operation before that date, and to fix any date places the Government in an awkward and unfortunate position. It is possible that amongst the members of another place, or of this Chamber, there may be those whom the Government would choose as Judges of the Federal High Court. These members, if not appointed to the position, would have to go before their constituencies in the ordinary course, and I contend that in common fairness they ought to be told whether or not they are to be appointed Judges. As to the appointment of the necessary court officials, I should, again, trust the Government. We must trust the Government, or turn them out.
– One Government is just as bad as another.
– I have been a member of a great many Governments, and I am personally acquainted with several Commonwealth Ministers j and I feel confident that they will make only necessary appointments, and observe all due economy. It is probable that the registrars, marshals, and other officers will be chosen from men occupying similar positions under the States Governments at the present time, and doubtless negotiations will have to be entered into in this connexion. The States Governments will, no doubt, desire as many of the salaries as possible to be paid by the Commonwealth, and the Commonwealth will be desirous of getting tiio work done as cheaply as possible ; and the result will doubtless be a good deal of bargaining. Some little delay must be occasioned in that way ; and I feel certain that the Attorney-General will make arrangements as cheaply and economically as is possible under the circumstances. I should advise the Attorney-General, in every case possible, to obtain the services of present State officials at perhaps some slight increase of salary. As I said before, we must trust the Government or turn them out, and if we cannot turn them out ourselves, we must trust to honorable members in another place.
– I am very glad to have had the opportunity of hearing the views of one or two honorable senators, and with the permission of the Committee, I shall withdraw the proposed new clause.
Amendment, by leave, withdrawn.
Motion (by Senator O’Connor) proposed -
That the Bill be reported with amendments.
Amendment (by Senator Keating) agreed to-
That all the words after “That” be omitted with a view to insert in lieu thereof the words “clause 40 be reconsidered.”
Question, as amended, resolved in the affirmative.
Clause 40 -
– It will be remembered that in clause 40 we substituted this new paragraph (c) for the paragraph originally in the Bill. By using the words”may not provide for any appeal,” we may not be able to cover a case where an appeal is prohibited. I move -
That the words “not provide for “ be omitted with a view to insert in lieu thereof the word, “prohibit.”
Amendment agreed to.
Clause, as amended, agreed to.
Bill reported with amendments.
page 3255
– I move -
That the Bill be now read a second time.
I am afraid it will be very difficult to make this Bill amusing, or even attractive orinteresting; at the same time it is a very important measure. I propose merely tostate in general terms what the Bill is. It follows necessarily upon the Judiciary Bill with which we have just dealt, and provides for the procedure which is to regulate the. High Court. It provides, as to a portion of the Bill, for certain definite rules of procedure which are the main body of the Bill, and which cannot be altered ; but it alsoprovides for a code Of procedure such as is generally laid down in regulations. This code of procedure, which will come intooperation at once, is subject to alteration by regulations. It is necessar3r to have a code of procedure ready in order that assoon as the Court is established, it will be able to get to work at once and carry on its business. If this Bill were not passed, it would be necessary that Judges of the High Court should make rules, and it would probably be impracticable to have those rules laid before Parliament to enablethe proceedings of the Court to be carried on within a reasonable time. A code of procedure has therefore been adopted in this; Bill, which so far as we can see, is perfect, and which is subject to amendment in the way I have mentioned. I may add that this code of procedure has been very carefully dra wn upon the latest and best models. It does away with a great many oldfashioned and cumbersome methods. It isfounded on the Queensland Code of
Procedure, which I think is generally admitted to be the best in Australia at the present time.
– Thanks to the Chief J ustice of Queensland.
– There is no doubt that the Chief Justice of Queensland has given this matter a great deal of study for many years.
– I hope it is better than his Criminal Code.
– With regard to the Queensland Criminal Code, I know that it is looked upon as one of the best Criminal Codes in Australia at the present time.
– Is it used in New South Wales?
– No, it is not used in New South Wales.
– We use it in Western Australia, and we know what a tangle it is.
– The code of procedure here adopted is modelled, if not altogether founded, upon that in use in Queensland. As to the rest of the Bill, it provides for certain oflicial matters, in connexion with the seal of the Court, the establishment of registries, and the transfer of a cause from one registry to another. It provides for the trial of issues, for new trials, for the law of evidence to be administered in the Court, for powers of amendment, for changing the venue of trials in cases, for the method in which judgment and execution shall be carried out, for the. way in which appeals are to be conducted, and security is to be given, and for procedure generally. Unless I were to go into the details of all these matters, it is hardly worth while that I should deal with any of them specially.
– I do not know whether the Vice-President of the Executive Council proposes to take this Bill in Committee to-day.
– Yes.
– If there is a quorum of honorable senators present, it is as much as there is. It is unusual to push on with a Bill of this character when there is such a limited number of honorable senators present. Many of the honorable and learned senators who took part in the discussion of the Judiciary Bill are not present to discuss this measure.
– We have no guarantee that they will be here if we adjourn now.
– Is it reasonable that we should push through a Bill of this importance with so small an attendance on a Friday?
– This is only a complement of the Bill we have just passed.
– This Bill deals with the whole of the procedure of the High Court.
– Only with the technical machinery.
– It does deal with technical machinery, but if Senator Playford should be unfortunate enough to get into the High Court, he may find this technical machinery put him sky high before he knows where he is. The legal members of the Senate should be present to discuss such a Bill.
– There is no rush of lawyers to oppose it, and the legal members of the Senate have read the Bill.
– If honorable senators who are members of the legalprofession are satisfied that the Bill should go through without discussion, I am content.
– It does not seem as if there were much room for discussion.
– I take counsel’s opinion, and I will not press my objection.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 7 agreed to.
Clause 8 (Temporary transfer).
– I should like the Vice-President of the Executive Council to explain the operation of this clause ; I do not quite follow it.
– This clause provides for the temporary transfer of a cause. When a cause is pending in a district registry, that is to say, a registry which is not the principal registry of the Court, and any party desires to make an application in that cause to the Court or a’ J ustice, but is unable to do so by reason of there being no Justice of the High Court present in the place where the registry is situated, the party- may lodge with the District Registrar a. request that the cause be transferred, for the purpose of the application only, to the principal registry, or to some nearer district registry at which a Justice of the High Court is present or appointed to sit, and the cause may thereupon without further order he transferred accordingly.
– And goes back again.
– Exactly. Suppose, for instance, a cause were being heard in Western Australia at a time when there was no Justice of the High Court in the State to whom an application of this kind could be made, the cause might be transferred for the purpose of the application to “Victoria or New South Wales, where a J Justice of the High Court could be found, and after the application was made the cause would be re-transferred to Western Australia.
Clause agreed to.
Clauses 9 to 11 agreed to.
Clause 12 (Trial without jury).
-The side note to this clause has attracted my attention. I have been looking through the Judiciary Bill, and 1 see no mention of a jury in that Bill. I notice that by clause 13, the High Court or a Justice may direct a suit to be tried with a jury.
– Trial by jury is optional, that is what is meant.
– I have always understood that, as a matter of law, all indictable offences are heard before a jury.
– This clause refers to civil cases.
– Under the Constitution, criminal cases must be tried by jury.
Clause agreed to.
Clause 13 agreed to.
Clause 14 verbal] v amended, and agreed to.
Clause 15 (Juries).
– This clause refers to the qualification of jurymen, the preparation of jury lists, the summoning, attendance, and empanelling of juries, and so on. If I am not mistaken, the law with regard to juries varies in the States, and we shall have Commonwealth causes tried by one class of jury in one State, and by another class of jury in another State. That is not at all desirable. The persons who are eligible to sit on juries are limited. In all the States there is a property qualification which I think ought to be done, away with.
– What does the honorable senator call a property qualification t
– In- Queensland I think a juryman has to be a householder with furniture valued at about £200 ; it is a property qualification. A young intelligent clear minded fellow, who is not a householder, is not eligible to sit on a jury. I have seen a number of naturalized foreigners sitting on juries, who”, to my mind, had not a sufficient acquaintance with the English language to perform that duty, while young natives, not property holders, were disqualified. We have laid down the principle that every man and woman in the community shall have a voice in the framing of our legislation. I think that it ought to be extended to our jury system.
– Would the honorable senator like to sit on a jury with ladies’?
– I should not have the slightest objection. Nor do I think would the honorable and learned senator. With regard to the matter of challenging, I do not know how the law operates in other States, but in Queensland the effect of it is that the Crown Prosecutor can practically choose his own jury. That is not fair.
– This provision does not apply to juries in criminal cases.
– It is worse in civil cases, because the jury is limited to commercial men.
– They must be householders.
– There are jurymen of the first class and jurymen of the second class. What I contend is that in Commonwealth cases the same rule should apply in each State.
– What does the honorable senator suggest 1
– I do not see how I can frame an amendment.
– The High Court does not take to itself any jurisdiction to try criminal cases.
– Would it not be possible for a criminal case to arise under the exclusive jurisdiction 1
– Those cases could be sent to the States Courts for trial. If any cases did arise under the exclusive jurisdiction, some provision might be made for trying them. The .great bulk of criminal cases will be tried by the States Judges, but there is a right of appeal in every instance to the High Court. The clause deals with juries for trying civil cases.. There are two courses open to us when we establish the procedure in the High Court. We can pass a Jury Act. in which we can set out the qualifications of a juryman, the method of summoning juries, and the rules for challenging and choosing jurymen. If we took that course we should at once have to establish a jury system in each State. We should have to appoint officers to carry out all that work. Why should we incur that enormous expense when all the work is done for us in each State 1 Another difficulty is that we should have all through Australia two systems of juries running - one in which men were liable to be summoned to ‘ attend State, juries, and another in which men were liable to attend juries for the trial of Commonwealth causes. We should have two lists. Even if we had a uniform system, it would impose a heavy tax on the members of the community.
– Let us take the electoral rolls as the basis of the jury list.
– That could hardly be done. The reform which the honorable senator aims at is, I take it, first to secure a uniform jury panel for all Commonwealth juries, and, secondly, to make every man in the community liable to serve. That reform could not be carried out without special legislation, and without increasing the cost of the High Court enormously. What we propose to do is to use the existing machinery in the States as far as possible.
– In what case does the honorable and learned senator anticipate requiring a jury ?
– In all the cases in which the High Court is a court of first instance. For instance, if a State sues the Commonwealth, or if an individual in a State sues an individual in another State in a State Court, those cases, and a number of other cases in which actions cannot now be brought, may be brought before the High Court, or a J Justice of the High Court, in its original jurisdiction.
– That is if the Judge directs 1
– Yes. That is the law, I understand, in Victoria, and, I think, in Queensland. It certainly is the law in most British possessions that any person may have a case tried by a jury or a Judge. “
– In nine cases out of ten it is better for a case to be tried by a Judge.
– In the Courts in which trial by jury is optional, the great bulk of the cases are tried by a Judge. It is perfectly open to any one to have his case tried by a Judge or a jury, as he thinks fit. It seems to me that, as a beginning, we have adopted the most economical way in this Bill. By-and-by, if. public opinion is in favour of adopting a new system of special juries for Commonwealth causes, and it is prepared to bear the cost, it may be instituted, but at the present time it would be wasteful and unjustifiable to introduce a. separate system of trial by jury.
– If Senator Stewart had directed hisattention to the pay of jurymen, he would have looked in the right direction. It is notorious that men have to leave their business to serve on juries for an allowance of a few shillings a day. The scale of payment is disgraceful. Senator Stewart seems to think it a great privilege for a man toserve on a jury. If he had served on a jury many times, be would know that it isa great privilege not to be summoned. A neighbour of mine once complained to a. friend that he had not been put on the jury list, and he was told that it was very strange that he, a property owner who had lived in the neighbourhood for a long time,, had been left off the list. He immediately went down to see the sergeant of police in Toorak to learn why he had not been puton the. jury list. The sergeant, a genial, good-natured Irishman, said “ Faith, ain’t you on the list 1 Well, we’ll soon rectify that.” Before my friend was two days olderhe found that his name had been placed on the jury list. After his first experience in a criminal case, he was not very anxious to Beplaced on a jury again.
– I wish to spread thework over the entire community.
– If thehonorable senator had served on a jury many times, I think he would have come to the conclusion that justice is betterdispensed by a Judge, who is an intelligent man, and looks at the issue from a broad standpoint. In nine cases out of ten it shortens the length of the trial enormously, and saves suitors great expense. A case in which the liberty of a man is concerned should be tried by a jury ; but in nine cases out of” ten a Judge would , decide much better than a jury. If Senator O’Connor could see his- way to increase the fee of a juryman to more than 10s. a day, he would be carrying out a great reform.
– Thefee is only 5s. a day in some cases.
– It is too little. Men are engaged in criminal cases for days at a miserable pittance. Many a man has had his business half ruined through being called upon to serve on a jury. If 1 were not a member of Parliament I should consider it a privilege to have my name left off the jury list.
– I do not think that the Government could fairly be expected to make any other provision than they have made. Senator Stewart has got hold of a very important point. But I can hardly go as far as he is prepared to go, for I do not desire to see incapable men or women sitting on juries. In Tasmania, and I suppose it is the same in all the States, we have common juries, which generally tiy criminal cases, and special juries, which generally try civil issues. I have no hesitation in saying that some of the common juries in the various States are a disgrace to our civilization. With me the question is not whether a man is a householder or a property holder, but whether he is educated. A juryman ought to be a ratepayer, and to have some little stake in the country. But, above all, he ought to possess a certain degree of education. In cases where men are tried for embezzlement or forgery - in cases involving handwriting or intricate and complicated accounts - how can we expect to have a proper system of justice, or to insure protection to the State on the one hand, and to the prisoner on the other, when we have jurors who cannot read or write?
– There are few jurymen of that kind.
– I admit that the number of jurymen who cannot read and write is becoming fewer, but there are a great many of them still. In the early days of the High Court, when its officers will have some leisure time, it would be a good thing to draft a Bill to impose a uniform qualification, and then to see if we could not get the Commonwealth Act accepted by the States.
– How much would it cost to bringabout a new jury system ?
– I do not desire to have a new system, but I should like to see a few lines drafted to show what the qualifications of a juryman are to be.
– Supposing we had a State case which developed into one of Federal importance; how could the jury be changed then’
– I am pointing out that some juries are a disgrace to our civilization.
– So they are.
– Tasmania contains a greater number of illiterates in proportion to population than does any other State.
– If that be so I am more than justified in pointing out that a reform should be instituted. New South Wales is an older State than Tasmania, and there may be many jurymen there who are absolutely illiterate men.
– I have had a great experience of juries, and I think they have immensely improved during the last twenty years.
– I admit that they are improving ; but why not have certain qualifications? Why have men on a jury who cannot read and write?
Clause agreed to
Clauses 16 to 24 agreed to.
Clause 25 -
The High Court or a Justice may, at any stage of any suit pending in the Court, direct that the trial shall be held at some particular place to be specified in the order, subject to such conditions (if any) as the Court or Justice imposes.
-I want to be perfectly clear about this matter of the change of venue. Does it apply in the case of a jury as well as in the case of a trial before a J udge or J udges ?
– Oh yes ; it means the change of the place of trial.
– Our recent experience ought to teach us to be very eareful about what is done. I have in my mind a Queensland case, the hearing of which was transferred from the back-blocks to Brisbane. The case involved the habits and customs of people living in the back country. The Crown was afraid that the people out there might be prejudiced in favour of the accused. Consequently, the venue was changed, and a Brisbane jury tried the prisoner. That jury had no knowledge whatever of bush life, and, in my opinion, was not competent to try the cause. In another case the Broken Hill strikers were tried at Deniliquin instead of at the place where the offence was committed, and where the circumstances were well known.
– Where the people would have taken sides.
– The reason for the change was that the people at Broken Hill would be prejudiced in favour of the strikers, but they were taken to be tried at Deniliquin, where the prejudice might be presumed to be all on the other side.
– That would not be fair.
– There is a principle of British law that a man shall be tried by his peers, by his equals. When the venue is changed for any purpose that principle is infringed to a certain extent.
– It has to be done in certain cases.
– I admit that there are cases of great difficulty, where local prejudice might be sufficient to override justice. But, on the other hand, there may be outside prejudices. In the Brisbane case there was an undoubted prejudice against the prisoner, which had been deliberately fomented by the press. The people in Brisbane from whom the jury was drawn were to a man, I believe, prejudiced against the prisoner.
-Was he found guilty?
– Yes ; and I believe on insufficient evidence. If I had been a member of that jury I would have been no party to returning a verdict of guilty, even if I had had to be carried out dead. The man may have been guilty ; I do not know. But a jury is supposed to find a verdict according to the evidence, and I do not believe that the evidence was sufficient.The very fact that the jury was, or might be presumed to -be prejudiced, told very much against the prisoner. That case influences me in bringing up the question. Unless substantial reasons can be given there ought to be no change of venue. A man ought to be tried at the nearest court of justice to where the offence was committed. That rule should never be departed from except under circumstances of a most serious character. I see that the High Court may at any stage direct that the trial shall be held at some particular place to be specified in the order. Does that mean that the trial may be begun in one place and a jury impannelled there, and that in course of the trial the judge may disband the jury and change the venue to another place?
– He could not do that.
– 1 do not propose to move an amendment. I do not see how I can do so very well. But certainly the matter wants a little consideration.
– This clause has no relation to criminal trials. Senator Stewart’s criticism seems to me to be directed to the use that is made of the power of changing the venue, rather than to the reason for a power of this kind being given. I do not think there is any power which is more valuable in the administration of justice, to secure a fair trial, than that of changing the venue in certain cases. A prosepution may be begun in a place where it would be grossly unfair to the prisoner to have, him tried. There ought to be a power to change the venue in such a case. Take the very illustration which Senator Stewart gave. Supposing the offence was committed in Brisbane. It might be utterly unfair that a Brisbane jury should try the case, and it might meet the interests of justice to change the venue to some place in the Country where the jury would be likely to take all the circumstances into consideration. Everything turns upon the way in which the power is used, but that there should be such a power is beyond question. How is this power exercised 1 An application has to be made to a Judge, who is impartial, and who has no reason to be guided by any other consideration than the requirements of justice. He has both sides before him - the view of the prisoner, and the view of the prosecutor. Af ter hearingboth, and with all the evidence before him, he decides. The honorable senator will see that his objections are more in regard to the way in which the power isexercised, than as to the existence of the power. The power should be exercised in public, subject to public comment ; and I think in those cases where any injustice has been done - there are very few of them, if any - it is easy to judge after the event that the best was done that could have been done,under the circumstances under which the order was made. To make the clausemore clear I move -
That after the word “held” the words “or continued” be inserted.
A trial may be begun before a Judge in one place and continued in another. If a. jury had to view the place concerned, as very often happens when the case relates to a particular work, it might be convenient that the trial should be continued at that place. Or in a trial, in a case which did not involve the hearing of witnesses, before a Judge alone, it might be convenient to finish an argument at another place. It is a power that will only be exercised with due regard to all the parties.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 26 to 34 agreed to.
Clause 35-
– I should like to ask Senator O’Connor two questions in regard to this clause. Does Senator O’Connor not think that, supposing a judgment of a State Court in Federal jurisdiction is appealed against to the Full Court of the State, and the decision is confirmed, and a further appeal is ma’de to the High Court, security ought to be given 1 I see that the Judges of the High Court have power to order security ; but it appears to me that under the circumstances we ought to provide that security shall be given. The sum of £50 appears to me to be rather too low in view of the fact that the Order - in - Council regulating appeals to the Privy Council fixes the security at £200. Under the circumstances the security ought to be made £100, because, in many instances, an appeal to the High Court will be not less expensive than an appeal to the Privy Council. We can hardly expect leaders of the Bar to travel perhaps 1,000 miles from one State to another without charging a tolerably big fee, and, although such legal assistance may be regarded by some as a luxury, it might to some extent be justified. “We ought not to pretend to litigants that security will be given if the amount does not bear some relation to what the actual costs of the appeal will be.
– It is right that there should be an option to order security, because there are many cases in which to make such an order would be a farce. Where the party appellant is the Commonwealth orthe State, or a banking company, or otherinstitution which is notoriously well off, it would be absurd to ask for security, and, therefore, there ought to be an option. In any case where security is wanted it will be ordered ; and Senator Dobson will see that the security must be given, in such manner as is prescribed by the rules, the amount, unless otherwise ordered by the High Court or a Judge, being £50. That gives power to the High Court to order any security which is necessary and adequate, and it is only when no order is made that the amount will be £50.
– But £50 is a kind of guide or standard.
– If so, then £50 is not a bit too low. One of the advantages we all hope from the High Court is that itwill make appeals much more reasonable in cost and accessible to ordinary people. What has made Privy Council appeals impossible to many litigants is the large amount of security demanded. It is fixed, I believe, at £200 at the least.
– I have seen the security fixed at £500.
– The security may reach that sum. By this clause we fix an. amount which can be raised if necessary,, and t do not see any reason for laying it. down that in the absence of any orderthe security shall be more than £50.
– It is only onefourthof the security demanded in the case of a. Privy Council appeal, and an appeal to the High Court will not cost much less than an appeal to the Privy Council.
– If the amount turns out to be not enough it can be increased by an order of the J udge, and we ought to keep the figure as low as possible in the beginning.
– My disposition would be to amend the clause in quite a different direction to that suggested by Senator Dobson. As I understand the position, there are three classes of appeals established by’ this Bill. First, there are appeals from the Supreme Court of a State to the High Court instead of to the Privy Council; secondly, there are appeals from Federal Justices to the High Court ; and thirdly, there are alternative appeals to the High Court or to the Privy Council. Except in one of those three classes of cases, mo security is now required. The effect of this Bill, which ought really to facilitate appeals, seems to be somewhat to curtail them. While now a litigant may pass directly from an inferior court to a Supreme Court without any security, and while we have a High Court Bill passed for the purpose of enabling a litigant to make a choice »nd go to the High Court, under this clause he may be debarred, by an order for security,’ from going to the High Court. That is one objection I have to the clause, and another objection is in reference to the second class of case3 in which a litigant may go to the High Court direct from a Federal J Justice In nine cases out of ten, the matters with which Federal Justices may deal will be exactly the same as those dealt with by a Judge in nisi prius. A litigant may go from a Judge in nisi prius to the Supreme Court without any security, but he cannot go from a J udge in nisi prius, exercising Federal jurisdiction, to the High Court, which is on a parity with the Supreme Court, without giving security. The third class of case is where the litigant may go from a Supreme Court to the High Court instead of to the Privy Council, and it is here, and here only, that I think security for costs should be required. There should be security for costs in going to the High Court only in cases where now security must be given for costs when appeal is made to the Privy Council.
– That is a lawyer’s clause.
– The view I am now putting - although my sentiments are not always in this direction - is in favour of a poor man who has no money. One of the advantages of the High Court should be to prevent rich litigants from compelling poor men to settle or abandon actions by wearing them out by appeals frsm one Court to another. That is what I want to avoid as much as possible ; but the clause as it stands certainly - additionally hampers the poor man. If the intention of the High Court Bill is to make, in reference to the inferior courts, the High Court substitutionary for the Supreme Court, it ought to be as easy to go to the High Court from an inferior court as it is to go to the Supreme Court.
– Do not talk about the poor man, but about the man who has obtained a judgment confirmed by the Full Court. Why should he be dragged a third time to the Court 1
– I am with the honorable and learned senator.
– The honorable and learned senator is not with me on the point of Federal jurisdiction appeals.
– Perhaps I may make myself clearer by stating the position in another way. When a Police Court, which, is the lowest court, is dealing with Federal matters, those matters are identically the same as State matters, except that their source is the Commonwealth Parliament. If the Police Court is dealing with matters, the source of which is the State Parliament, an appeal may be made at once to the Supreme Court without any impediment. But if the same Police Court is dealing with matters which have a Commonwealth source, appeal to the High Court may be prevented - although the High Court is the only Court open - because security for costs may be asked.
– There is no security unless a special order is made.
– But there is a liability to that order, which there is not in the other cases. Now we come to the next Court presided over by a single Judge exercising nisi prius jurisdiction - that is jurisdiction in the first instance. Where such a Court is dealing with a matter which has a State source, appeal may be made to the Supreme Court without any impediment. But where such a Court is dealing with an incidental matter which, however, has a Commonwealth source, appeal to the’ High Court, although it is the only Court open, may be prevented by an order for security. These are the two classes of cases which are put in a worse position by this clause, instead of, as intended by the Bill, being placed in a better position. In regard to the third class of cases, in which a litigant may go direct from the Full Court of a State to the Privy Council, security for costs has always had to be given ; and a litigant ought 1o be made to give security when he substitutes the High Court for the Privy Council.
– The amount is too low.
– I am in favour of having the amount as low as possible, because it can always be raised.
SenatorDobson. - The next clause says that it may be reduced.
– My experience generally of courts is that the necessity for giving security for costs always plays into the hands of the man with money, and very often proves most disastrous to the pour man with a good case. I should like to have the clause amended in the direction I have indicated.
– I think I shall be able to explain away the difficulties of Senator Harney. In the cases of which the honorable and learned senator speaks, of appeals from what are comprehensively called inferior courts - that is to say, Police Courts or County Courts exercising Federal jurisdiction - no security is required unless the High Court makes a special order.
– That is so.
– The question isAre there cases in which justice can be done only by making such an order ? I say that there are such cases. An appeal from a Police Court or County Court in the same State is on an altogether different footing. Where is the High Court going to sit? A man may got a verdict in Bockhampton,
Bay, and he may be either a poor man or a rich man - I do not want to discuss “the matter from that point of view. If the unsuccessful party in the suit desires to remove the case, say, to Sydney, Melbourne, or some other centre, why should the party who has got the verdict be dragged all that distance, when he is certain to succeed, unless security for costs be given ? If it be a case in which there is no necessity to order security, no order will be made. If an appeal be made, for instance, from an -inferior court in Victoria to the High Court in the same State, there will be no necessity for security for costs, because there will be’ only the legal charges which may not be very large. - But where a litigant has to travel, and perhaps take his legal adviser with him from one end of Australia to the other, why should there not be power to order security for costs 1 If the view of Senator Harney were carried out, it would take away from the Court all power of adjusting the balance in cases of the kind I have indicated. We all ‘ know that thera> are many cases in which a verdict is given against a man, from whom it is perfectlyobvious money is due ; but he may not be able to pay, and desires delay. Such a man. may appeal from one court to another, and when the end comes it is found that he has no money, and he goes into the Insolvency Court. That is . the other side of the picture. We may always lie sure that a; Judge who is perfectly impartial, andl simply desires to see justice done, will be able to decide as to the cases in which security for costs ought to be ordered.’ The only cases in which security will be required are cases in regard to Supreme Court decisions, where there was at the establishment of the Commonwealth an appeal to the’ Queen in Council. In those cases where security was given before* that is to say, cases involving certain subjects of jurisdiction and large amounts, it is only right that there should be an appeal given as there was ‘before. Senator Harney admits that there is no reason why it should not be so in these cases. I hope I have satisfied the honorable and learned senator that in other cases where.it is fair and rightthat there should beno security demanded, none will be demanded.
Senator HARNEY (Western Australia). - I am somewhat converted by my honorable and learned friend in reference to one of the’ points I have raised. I am quite right in saying that in a case nowtried by a Judge of the first instance sitting in Victoria, either of the litigantscan go to the Full Court of Victoria without giving any security for costs, and without being liable to any security forcostsunder ‘ any order. With precisely the same contractand parties, but having regard to the fact that one of the parties happens to live across the border, it becomes a High Court matter,: and then, though it is dealt with by the Judge of the first instance in identically the same. way as if one of the parties did ‘ not live across the border, if a party desires to take the case to the High Court he is liable to an order for security for costs. While that is true, the answer to it is one to which I can give no reply. It is that, even at the present time, if we take an action against a person outside the jurisdiction of our Court, we’ must give security. In the third case I . put,. I will remind honorable senators that by clause 40 of the Judiciary Bill, paragraph (b), we provide that -
Wherever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State an appeal from the dooision ‘may be brought to the High Court.
If we are to give full effect to that, we should make the road leading to the High Court from the inferior court as easy of access as that leading . from the inferior court to the State Supreme Court. We do not make it by any means as easy of access if we place ah order of a Judge as an obstacle on the road to the High Court. To make our scheme symmetrica], I think the order should be banished in this case; but I am not inclined to press it, for the reason that where a litigant looking ahead is told that he can go either to the High Court or to the Supreme Court of the State, he may decide to go to the Supreme Courts and this provision will, therefore, have the effect of diverting to the High Court only those classesof appeals in which some real principle is involved - in which cases’ no obstacle would be placed in the way - or where there is money on both sides, and an order for security for costs will not act as aft impediment. This may prove to be a desirable differentiation, since it may tend to keep in the States Courts poor persons who are parties to oases in which questions of imr portance are sot involved, or in which small amounts are involved, and in other cases the obstacle will not be found to be insurmountable.
Clause agreed to.
Clauses’ 36 to 39 agreed to.
Schedule verbally amended and agreed to.
Bill reported with amendments.
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Senator O’CONNOR laid upon the table the following paper : -
Electoral divisions - New South Wales : First report of Commissioner Houston, with-maps.
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Re-arrangement of Portfolios.
– I have to announce that the vacancy in theDepartment of Trade and Customs, occasioned by the retirement of Mr. Kingston,has been filled by the acceptance of the office of Minister for Trade and Customs by Sir William Lyne. His acceptance of that position has necessitated a re-arrangement of portfolios, which has been made subject to the approval of his Excellency the Governor-General. Sir John Forrest will take the office of Minister for Home Affairs ; Mr. Drake the office of Minister for Defence ; and Sir Phillip Fysh the office of Postmaster-General.
Senate adjourned at 4.1 p.m.
Cite as: Australia, Senate, Debates, 7 August 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030807_senate_1_15/>.