1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
Senator WALKER presented two petitions from 47 electors and the Alliance, New South Wales, praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea,
Senator STYLES presented a similar petition from 521 electors of Victoria.
Senator MACFARLANE presented two similar petitions from 102 electors of Tasmania.
Senator KEATING presented a similar petition from 63 electors of Tasmania.
Senator O’KEEFE presented a similar petition from 40 electors of Tasmania.
Senator BARRETT presented a similar petition from 47 electors of Victoria.
Senator PLAYFORD presented four similar petitions from 131 electors of South Australia.
Senator DRAKE laid upon the table
Papers in connexion with the prosecution of Farmer and Co.
asked the Vice-President of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Is it his intention to complete the destruction of the Defence Force in New South Wales by reducing the staff sergeant instructors to two per regiment of eight companies ?
– The answer to the honorable senator’s question is as follows : -
The number of staff instructors to be assigned to each regiment has not yet been decided. In the meantime, the following information may be of use to the honorable senator : -
– Are the instructors referred to in the answer sergeant instructors, or commissioned instructors, or both?
– Is it a fact that a number of officers described as instructors, are occupied with other duties?
– I am not aware, and I must ask the honorable senator to give notice of the question.
asked the Vice-
President of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
A letter was received from the General Council of Chambers of Commerce of Australia, calling attention to the fact that details of Customs entries, which are deemed an unnecessary revelation of the business of traders, are to be found in journals such as the Daily Australasian Shipping News published in Melbourne, and that it has been made possible for those seeking information to obtain at the Customs-house particulars of entries which are usually regarded as the secrets of traders, and asking the Minister to be good enough to promptly take such steps as he might deem necessaryto safeguard the interests of traders in respect to the matters referred to. To which the Minister replied that there appears to be considerable difference of opinion on the subject of the advantage or disadvantageof the publications referred to, but that it is recognised by him that there should be no unnecessary disclosure to the public of private papers, unless it is desired by the parties represented. He proposed, therefore, to direct that the details which are objected to, shall not in the Customs-house be made available for publication, unless on the written request of the persons interested, and instructions were issued accordingly. 2. (a) The instructions were issued by direction of the Minister.
Unless with the consent of the parties immediately concerned, it does not seem that the Department would have any justification for making use of documents passing through their hands and disclosing the private business of importers. The primary object of passing entries is to secure the payment of revenue, and not to afford information to the public of the business transactions of merchants. The Melbourne Chamber of Commerce recently addressed the Minister especially on this subject, and desired him to refuse such publication even when made at the request of the importer or merchant ; but as above stated, the Minister considered that when the merchant desired it publication might be permitted, but not otherwise.
asked the Vice-
President of the Executive Council, upon notice -
-This series of seventeen questions, couched in terms of studied impertinence to the Prime Minister and hiscolleague, appears to the Government to be a misuse of the right to question Ministers on public affairs. I therefore decline to give an answer.
In Committee Consideration resumed from 12th August,(vide page 3447) :
– I move -
That the following new standing order be inserted: - “16a. Subject to section 17 of the Constitution, the office of President shall become vacant on the 31st day of December following a periodical election , or on the date of any proclamation dissolving the Senate. A periodical election shall be taken to mean any election for the purpose of filling the places of the senators of either of the two classes mentioned in section 13 of the Constitution becoming vacant in the terms of such lastmentioned section.”
The object of this standing order is to give effect to the alteration which the Committee made in Standing Order 17, which now reads as follows : -
Whenever the office of President becomes vacant, which vacancy shall take place by reason of a periodical or a general election of the Senate, a senator addressing himself to the Clerk shall propose to the Senate for their Presdent some senator then present, and move that such senator do take the Chair of the Senate as President.
My object in moving an amendmentin that standing order on a previous occasion was to get the Committee to determine the term of office ; but it deals with two questions, namely, the term of office and the mode of election. It occurred to me that it is desirable to deal with each question in a separate rule. If honorable senators will refer to the list of proposed standing orders which has been circulated, they will see how I propose to carry out that idea. On a previous occasion there was such a large majority in favour of the term for which it was thought that the President should hold office that I ought not to be expected to go into that question again. We had a full-dress debate, and the term which is fixed in Standing Order 17 was decided by a majority of sixteen to six.
– Does not this new standing order conflict with section 17 of the Constitution Act?
– It does not fix the term of office, but merely deals with the election of President. It says -
The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate ; and as often as the office of President becomes vacant, the Senate shall again choose a senator to be the President.
The President shall cease to hold his office if he cease to be a senator.
– That is, when the office becomes vacant.
– That question was fully debated and decided, and the Committee came to the conclusion that, although the Constitution provides that when the President ceased to be a senator he should cease to hold office, it was left to the Senate to fix the term of his office. If the framers of the section intended that the President should hold office for as long as he was a senator, why was not that idea expressed in clear and unmistakable language?
– Is it not implied?
– We do not read the Constitution by implication. I do not think that its framers would have left the point in doubt if they had meant that once a President was elected he should hold office for as long as he was a senator. By a majority of sixteen to six the Committee decided on a former occasion that it had the right to prescribe the term of office by standing order.
– It is determined in the standing orders.
– But there is no date fixed.
SenatorO’Connor. - The expression is too vague. It will be impossible to say when the election will take place.
– The election of senators will be held this year - probably in November. But the retiring senators will not retire till December. If we say that the President shall hold his office until the election, it might be said that he should retire when the writs are issued, or when the poll takes place, or when the writs are returned. There is nothing definite about it. I do not propose to go into the constitutional aspect. I shall wait for other honorable senators to raise that point if they desire to do so.
– The proposal of the honorable senator raises the whole question of the expediency of fixing the term of the President’s occupancy ofoffice at three years instead of the whole term during which he occupies a seat in the Senate, whether it be three years or six. I was not present when the subject was previously discussed, but I have carefully read the whole debate which led to this momentous change being made, and the report of which occupies only some three pages in Hansard. I do not intend to discuss whether it is desirable that the term of the President’s occupancy of office should be three years or six. My opinion is that it ought to be six years. Although there is a good deal to be said on the other side, the balance of reasons is in favour of the longer term. But I desire particularly to call the attention of the Senate to a question which does not appear to have been alluded to in the previous debate, and which must have escaped the notice of honorable senators. That is as to how this matter affects the present occupant of the chair. Something has been said about the Constitution. It is not easy to say whether the Constitution really deals with the .particular question of whether the President must have a term of office extending during the whole period of his occupancy of a seat in the Senate. Personally, I do not think that the provision of the Constitution is sufficiently definite to bind the Senate one way or the other. But assuming that the Senate is at liberty to elect a President either for six years or for three, it appears to me to be perfectly clear that our present President was elected for six years. The motion which was carried when the President was elected was in these words -
That the Honorable Sir K. G. Baker do take the chair of this Senate as President.
There is not a word of limitation of any kind, It would have been open for the Senate to phrase the appointment - “ That he do take the chair of the Senate until the next periodical election”; or “That he do take the chair foi- one year “ ; or “ That he do take the chair for this session.” It will be remembered that when we elected our Chairman of Committees - although many of us thought that ‘he ought to be elected for the whole term of the Parliament, and the first motion for election of the Chairman was framed in that way, it seemed fit to the Senate to give a different tenure. The tenure of office of the Chairman of Committees is expressly limited for a session and a fortnight afterwards. Under these circumstances, even if it is open for the Senate to elect either for the whole term during which the President is a member of the Senate oi’ for a lesser term, when we look at the resolution and see that there was no limitation of any kind, but that Senator Baker was simply elected President of the Senate, how are we now to impose any limitation ? What right has any one to say that, although he was elected President of the Senate in that general way, his term of office should cease at the end of three years ? We have no more right tosay that than we have to say that the President’s term of office shall cease at the end of the session, or at the end of twelve months, or shall be limited to any arbitrary time that may be fixed.
– Why should it notgo on for ever, then 1
– That question brings out its own answer ; because, according to the Constitution -
The President shall cease to hold office if he ceases to be a senator
The clear meaning of that is that when his term of office as a senator expires, and hehas to go up for re-election, he ceases to be President. All through our Constitution the words used are “ at the expiration of his term.” No one can say for a moment that it is a continuous term. It is a term of six years, at the end of which another term begins.
– And he would have to be re-elected President on coming back to the Senate.
– Of course he would have to be re-elected President. When he comes back he is a new senator, and has to be re-sworn. Therefore, I say that, when we elected Senator Baker to be President of the Senate, that meant, under the Constitution, President so long as he remained a senator - that’ is, during his term of office as a senator. Therefore, it appears to me that the position is this : We have elected Senator Baker for six years, and when that period is half-way through we suddenly pass a standing order which cuts the term down to three years. That is altogether apart from the question whether it is right to give the President a three years’ or a six years’ term in the chair. What we have done would make it impossible for us, consistently with the preservation of good faith on the part of the Senate, without any notice or any justification whatever, suddenly to cut short the term which we have already given to the present President.
– When we elected Senator Baker it was not known whether he would sit for three years or for six.
– That strengthens my argument. If it was intended that he should hold office for three years, why was no limit placed upon the term?’ Why did not we provide that Senator Baker should remain President until the- periodical elections ? But that was not done. The fact of the matter is that at that time no one thought of a limitation of the term. No one thought of a periodical election bringing one senator within and placing another without the six years’ limit. That is the view which I take of the matter, and, under the circumstances, I see no way by which, legally, the President’s term of office could be brought to an end except, under the Constitution, by his ceasing to be a senator, or by means of some special motion removing him from his office. Holding that view strongly, I had determined to test the opinion of the Senate as to whether or not it should reconsider the question, and retrace its steps so far, at least, as the occupancy of the chair by Senator Baker was concerned. But naturally I spoke to the President about it, and, at his urgent request, I have decided not to take any action. He has told me that even if a considerable minority of the Senate - much more a majority - expressed the view that, in the interests of the Senate, the term of office should be three years, he would not feel disposed to put any personal grounds or reasons of his own in the way of that wish being carried out. Therefore, he has declined to allow me to take any action.
– That is the only honorable course to take.
– It is a perfectly right and honorable course to take ; but I did not feel relieved from the necessity of stating the real position to the Senate. I was the leader of the Senate when Senator Baker was elected to the chair, and in my own mind I felt that the election was for six years, although nothing was said to Senator Baker about it. Indeed, I do not think it was mentioned publicly to any one. But as I believed that the feeling of the Senate at that time was that the election was for six years - certainly that was my feeling - it appeared to me that this matter ought not to be finally concluded without some reference being made to it. However, as Senator Baker has taken the course which I have mentioned, and which, I must admit, is one that is very creditable indeed to him, I cannot go any further. I approve of the alteration which Senator Pearce suggests, with amodification. It is quite clear that the standing order as it is would not do. It is too vague. But it would not do to substitute Senator Pearce’s proposal without any alteration. He proposes that the office of President shall become vacant on the 31st December following a periodical election, or at the date of any proclamation dissolving the Senate. As honorable senators are aware, if the general election is held, as will most probably be the case, on the same day as the Senate elections, Parliament will have to be called together within a month after the return of the writs. So that it is probable that there will be a lapse of, it may be, a fortnight after the 31st December before the Senate meets. During that time there is administrative work connected with the office of President which must go on. The affairs of the Department must be attended to. The arrangements for the opening of Parliament must be in the hands of somebody. There are arrangements to be made for the accommodation of persons who are invited, and other matters connected with the ceremonial which may seem small in themselves, but which must be arranged, and which make all the difference between things working smoothly and otherwise. There must be a President to supervise. It appears to me that the proposalought to be amended by making it read, “ Shall become vacant on the day before the first meeting of Parliament after the election.”
– After a periodical or a general election, or both ?
– After a periodical election ; or we might put it “ The day before the meeting of Parliament after a periodical or general election.” Parliament must meet within a month after the return of the writs. If there has not been a dissolution of both Houses, it may be a shorter period ; but it is very likely in the future that elections for the Senate and for a new Parliament will run together. Of course that cannot be guaranteed, but it will involve such an enormous saving of expense to the country to have the elections on the same day that the probabilities are it will be done. At any rate I am not binding myself to any form of words. I am suggesting to the honorable senator, who I know simply wants to carry out his view in a convenient manner, that it would be well to provide that the President’s term of office should continue until the day before the meeting of the new Parliament. Iwould remind the Committee that in the other House the
Estimates provide that the Speaker’s salary shall go on after the election, continuing up to the date of the meeting of the new Parliament.
– Subject to the Estimates being adopted.
– That is the proposal of the Government, and it is in accordance with the practice of the Parliaments of all the States. It must be remembered that these Houses of Parliament are in themselves a very important department of government, which must be administered, and of which there must be an administrative head with authority to decide, and to arrange matters, particularly beforethe opening of a new Parliament. The amount of money which will be saved by extending the term of office for the period between the 31st December and the time of the meeting of the new Parliament is very small. I do not intend to oppose Senator Pearce on the main principle of his proposal, but I suggest that an amendment should be made currying out the view I have indicated - that is to say, that the President should remain in office until the day before the new Parliament meets. Of course, I am now speaking of a President who continues a senator, and I should have no objection to the rule being limited in that way. But where we have a President who remains a senator, and who is drawing his salary as a senator, there is no reason why he should not be placed in the same position in this respect as the Speaker in another place, and receive his salary until the day before the meeting of Parliament.
– Or until his successor is elected.
– That might be the proper way of expressing it. It may be, however, that those who advocate a three years’ term only, would hold that a President who appeared in the chair on the first day, had some advantage over another candidate for the position ; and, therefore, it is proper, I think, that the office should be vacated the day before the meeting of Parliament.
– It is a small matter.
– It is. As I have said, I am dealing with the case of a senator who has a six years’ term of office. There would be a little difference in the case of a senator whose term expired on the 31st December, and I should be perfectly willing to limit the application of my suggestion in the way indicated.
– It is proposed to include the present occupant of the chair.
– I think myself that that ought to be done, and I should have made a proposal to that effect, but I have had from Senator Baker himself a strong protest against my taking any such course.
– Would that prevent any other honorable senator proposing that it should apply to the present occupant of the chair.
– No, it would not ; but as this is a personal matter, I do not think that any honorable senator would take it on himself to submit such a proposal against the wish of Senator Baker.
Senator PEARCE (Western Australia). - No one can find fault with the fair manner in which Senator O’Connor has laid this matter before us. I am sure that the Senate will acquit me of any personal feelings. I have had this matter in my mind almost since the first meeting of the Senate, but I have always been told that the proper time to deal with it was when the standing orders were under consideration. We ought to remember that when the present President was elected to the position, he was not a senator elected for a term of six years, and, that being so, what becomes of all the talk about a breach of understanding? It was a month or six weeks after the election of the President that we determined which senators should retire at the end of three years, and there could not have been any understanding that Senator Baker was elected as President for six years. Has this Senate a double entity ? Have honorable senators had a secret meeting, and come to a conclusion as to who shall preside over us hereafter? The only determination that I know of in this respect is that which was come to on the floor of the Senate Chamber.
– And nobody else knows of any other.
– As to the opening of Parliament, who made the arrangements for the first opening ceremony ? We had no President, and I heard of no hitch in the arrangements, which were of a very complicated character.
– The arrangements had to be made by the Government ; but why should the Government continue to make the arrangements for the opening of Parliament ?
– Why should not the Government make the arrangements for the future?
– Because we have handed over the Department to the President and Speaker. Why should the Government take over the administration of the Department for a few weeks?
– I am no prophet nor the son of a prophet, but I feel safe in saying that, even if we accept the suggestion of Senator O’Connor, the arrangements in the future after a general election will be made by the Government. The further Senator O’Connor went on with his explanation, the deeper he got into the bog ; and I was hoping that he would go on for another quarter of an hour, when he would have shown clearly how impossible his suggestion is. A dissolution of one House does not affect the election of President; but the dissolution of both Houses gives rise to different conditions. The Senate has to meet within 30 days, and only for that time would the office be vacant. Is there any possibility of trouble arising owing to the absence of a President for 30 days ? The administration of the Department could be carried on by the Government or the existing staff of clerks.
– All that would be gained by the honorable member’s proposal would be the saving of 30 days’ pay.
– What is involved besides the saving of salary ?
– There would be a fresh Senate, with a President who had been elected by the previous Senate.
– But, according to my suggestion, the President quits his office the day before the meeting of Parliament.
– Why should we go out of our way to save a member of the Senate a month’s salary?
– That is not the object at all ; the object is to serve the public convenience.
– If there was any necessity for the step proposed by Senator O’Connor, it would be a different matter ; but where an official is not absolutely necessary, I do not see why he should be voted a month’s salary. Indeed, in some cases it might mean six months’ salary; and, further, Parliament might not have been sitting for three or four months, or, perhaps, six months, before the election. The President ought to hold his office until the 31st December, or until the proclamation dissolving Parliament. Surely that is sufficient if generosity has to be called into the question ; but I object to the question of generosity being raised, because it is an unfair way of putting the matter. The question is, what is the proper date when the office should be vacated ?
– Surely that is the only question I put. I did not make the proposal on the ground of paying a month’s salary, but on the ground of public convenience.
– I am not referring to Senator’s O’Connor’s remarks, but to interjections which have been made.
– From when does Senator Pearce propose to pay the new President ?
– From the date of his election.
– Then the retiring President should be paid up to the date on which the new President commences duty. We should lose nothing by doing that.
– But under Senator O’Connor’s suggestion, we should be paying a President when there was in existance a new Senate which had had no hand in his election. If I may use an illustration, Senator Baker was elected by 21 votes, and at the end of . the year nineteen senators have to face the electors, eighteen retiring in the ordinary course. Those eighteen senators may have been amongst those who voted for Senator Baker, but they may be replaced by eighteen new men. Thus, in the new Senate, there would beonlythreesenatorswho had voted for the President, with fifteen old senators who had voted against him, and eighteen new senators who had had no voice in the election. I think the standing order had better be allowed to remain as it is. I regard it as a perfectly fair rule, which can inflict no hardship on any person. The idea that there was any understanding has been blown to the four corners of the earth, and if we amend the standing order in the direction indicated, we shall make it meaningless.
– I was the senator who had the honour to propose Senator Baker as President, and I took it for granted that he would be elected for the term during which he might remain a member of the Chamber. I may also say that, judging from experience elsewhere, I from the first took it for granted that the three senators highest on the poll at the elections for the Senate would have the longer term of office.
– The three candidates highest on the poll took that for granted from the start.
– I would further remind the representatives of South Australia that, in the case of a general election in that State, the first to retire from membership of the Legislative Council are the elected candidates who are placed lowest on the poll, and 1 took it for granted that the same course would be adopted in the Senate.
– Some honorable senators proposed that lots should be drawn.
– That was the idea of some of those whose term of office could only be three years. Senator Pulsford was the first I heard publicly declare that it would be manifestly unfair if the men elected at the top of the poll were not given the longer term of office.
– Surely Senator Walker did not agree with Senator Pulsford ?
– I thoroughly agreed with him, and I should have done so had the circumstances, so far as I was personally concerned, been different. It is a pity that there should be a difference of opinion on the subject. I feel perfectly sure that Senator Pearce has no personal feeling in the matter, because he has himself told me that if the President were to retire, he would be amongst those who would vote for his re-election.
– Hear, hear.
– I intend to support the amendment proposed by Senator O’Connor. Senator Pearce has made some allusion to a previous arrangement, but I am only aware of one section of the Senate having held a meeting to agree as to the candidate for whom they would plump. It is not in good part for one of those honorable senators to make such an insinuation.
– In order to meet the views I have expressed, I move -
That the words “31st day of December,” line 4, be omitted, with a view to insert in lieu thereof the words “day before the meeting of Parliament next.”
– Would it not be better to use the word “ Senate “ instead of Parliament ?
– Parliament, I think, is the proper word, because both Houses meet at the same time, and the day of meeting is when the Governor-General performs the opening ceremony. Then, in order to carry out the further suggestions I have made, that the standing order shall apply only in case of a senator who still holds his seat in the Senate, I shall move that, after the words “periodical election,” the words “ if the holder of the office remains a senator “ be inserted.
– What about a general election?
– Section 17 of the Constitution makes it clear that one who is not a senator cannot hold the office of President.
– What is done in that case?
SenatorO’ CONNOR.- The Constitution provides that his office as President comes to an end. I think that in the standing orders we have now provided for all cases.
– Who will look after the ceremonial duties ?
– We shall have to do the best we can without a President.
-I intend to oppose the amendment. Senator O’Connor referred to the great amount of work which has to be done between the end of one Parliament and the beginning of another ; and said that, on that account, it is necessary that the President should hold office during that time. He admitted that where the President’s term of office as a senator expired at the end of the year there must, of necessity, be an interval during which there would be no President. If, as he said, we should have to do without any one to look after affairs here then, why should we not do without an official in the other case? For other reasons, I think it is extremely undesirable that the President should continue to hold office right up to the meeting of a new Parliament. I was not here on a previous occasion when Senator Pearce submitted his proposal ; but I think his reason for moving that the President should be elected at the beginning of a new Parliament must be clear to every honorable senator. Notwithstanding the exhaustive argument into which Senator O’Connor entered, I think that the Senate ought always to keep in its own hands the election of its President. At the end of every third year we might have practically a new Senate. Suppose for the sake of argument, that eighteen new senators were elected at the next election, they would find in the chair a Presidentin whose election they had had no voice. It is extremely desirable that, at the beginning of every new Parliament, honorable senators should have an entirely free hand in the choice of their. President. Senator O’Connor has told us about the necessity of having some person to look after the building, and to see that the Parliament is opened properly, and that the Governor-General is received in due state. We have permanent officials whose duty it is to see that the building is kept clean. Surely it does not require the President of the Senate to do that work ? Again, we have a clerk, a permanent officer, who can at tend to all matters of ceremonial just as well as the President, and probably very much better. We shall gain nothing practically by keeping the President in office right up to the beginning of the new Parliament, but we should lose a great deal. We should lose money, and I hope this argument will appeal to the advocates of economy. The President is paid at the rate of £1,500, while a senator is paid at the rate of £400 a year. I appeal to Senator Fraser, an economist, to help us to save £100 to the taxpayers.
– I had no opportunity of taking part in the previous discussion on this question, and I was no party to the conclusion which was then arrived at. Speaking without reference to the occupant of the chair, but simply with reference to the Constitution, what position I ask did its framers intend the President of the Senate to hold ? We took section 17 of the Constitution, absolutely word for word, from a State Constitution. We found that under all the States Constitutions the President of the Legislative Council held office for the period for which he was elected a member ; there was no exception to that rule. The words of this section are identical with the words in the corresponding section of nearly every State Constitution Act, and no Legislative Council that I am aware of has ever thought of any other theory than that its President, as a matter of course, should hold office for the term of his election.
– In Queensland and New South Wales the President of a Legislative Council is elected for life.
– That strengthens ray argument a little. When we are considering the words of the provision in our Constitution it is not unwise to ascertain where we got them from, and to assume that we were proceeding on old lines, except where we expressly declared that we were proceeding on different lines. No words can be clearer than the words of the section. I believe that if its interpretation were referred to the Supreme Courts of Australia, there would not be a difference of opinion expressed. They have always been construed as I have stated. The only doubt, coming from the words themselves, is whether it was not intended to follow what Senator Walker suggested when he referred to the cases of Queensland and New South Wales.
– Where the President is not elected, but appointed by the Executive.
– Taking the words of the section, we find that it is provided that the Senate, before it can do any thing else, shall - not may - electa President, that he is to cease to hold office if he ceases to be a senator, and that he may be removed from office by a vote of the Senate, or resign his office or his seat by writing addressed to the Governor-General. There is the provision, absolutely exhaustive of everything we can do. We can elect a President, and we may remove him.
– Does that exhaust our powers, though?
– That is my opinion. One part of the provision is absolute, the other part is permissive. For how long is the President to hold office?
SenatorFraser. - For as long as the Senate likes.
– There, I admit, a doubt comes in. On the words it might be, as in the cases which Senator Walker has mentioned - for life ; that is, for as long as he remained a senator ; but at all events, no more limited construction can be put upon them than that they mean during his term of office as a senator, whether it happens to be three or six years. As a question of strict law, following the lines of the old Constitutions, and presumably using the same words, so that the same construction might be brought about, the section, I venture to say, so far as the language is concerned, is capable of no other construction I appreciate the position which Senator Baker takes. He is esteemed so much that I am perfectly sure that to him this is an abstract question from every point of view. But I decline to allow the delicacy which he may feel to interfere with the expression of my view on what I think is the proper constitutional position. I am talking about the President in the abstract, although I feel that after what has taken place this matter may be regarded as settled, I thought it only fair to put on record my view of the subject, which is that we intended the President of the Senate to occupy his position during the time for which be was elected as a senator. The Senate is not like the House of Representatives. The very essence of the Senate- is its continuity, while the very essence of the other House is its want of continuity.
– I thought that King Charles’ Head would come up again. Under the circumstances it has come up in the right place, because a constitutional point is involved. T was very much surprised, however, to hear Senator Downer alluding in such affectionate terms to the good old ways, and the good old precedents. When we were dealing with the standing orders yesterday, he wanted to vote against the good old ways and the good old practices. If we think it is right and proper in any case to make a change, we should depart from the good old ways and the good old practices. If it can be done in one ease surely it can bc done in another. I was not aware until Senator Downer spoke, that in this respect the framers of our Constitution had followed the lines of the States Constitutions. If my memory serves me rightly the South Australian Constitution imposes no limitation. It is left to the Legislative Council to decide for how long a .term it shall elect its President. A great deal has been said to the effect that when honorable senators voted for the election of the present President they did so on the understanding that he was to remain in office as long as he continued to be a senator. I worked to get Senator Baker placed in his present position, but I had no such intention. I did not know whether he would remain a senator for three or six years. It was a moot point. 8 rr
We were equally divided as to whether we should not pass a resolution declaring that senators should retire by ballot.
– We elected Senator Baker for this Parliament.
– That was my understanding ; and I think that that was the proper thing to do. It would be mon-‘ strous for us who happen to be here for six years to be able, at the opening of Parliament, to elect a President to continue in a new Senate after half of the previous members had retired. It is true that the former senators- may be re-elected, but there may be a great many changes. The new Senate should be able to say who should preside over it. Of course, if a retiring President has so conducted himself that honorable senators have ‘ confidence in him, he will, as a rule, if he offers himself as a candidate for reelection, be unanimously elected. The instances to the contrary are very few. I think that Senator Baker has been exceedingly wise in saying that he prefers that the matter should remain as we 4eft it when it was previously debated. I spoke strongly on the subject then, and need not say an)’ thing more now, except that, in my belief, the practice we are adopting is the correct one. It has been admitted, even by Senator O’Connor, that he is willing that it should apply in the future, but he wants to make an exception in favour of the present President in consequence of what he believes to have been the opinion of the Senate at the time Senator Baker was elected.
– I wish to refer to the credit given by Senator Walker to Senator Pulsford for having acted very generously in stating” in public that he thought that the six years’ senators should be those who were highest on the poll. Senator Pearce has explained to me that the probable reason why Senator Pulsford adopted that view was that the three senators at the top of the poll in New South Wales were free-traders, whereas one of the three lowest on the poll was a protectionist. From our past experience we have every reason to be careful about accepting suggestions from the Vice-President of the Executive Council. We never know what the honorable and learned senator is about, even when he gives notice of a proposition ; but when he comes forward without notice, anil suggests something in his usual gentlemanly and unassuming way, we need to be doubly careful. If the Senate is prepared to accept Senator O’Connor’s amendment, let us understand exactly what we are about to do. He states that he desires to amend Senator Pearce’s proposal, in order to provide that the President shall hold Office until the day next before the first meeting of the new Parliament. I look up the Constitution, and I find that section 5 provides that-
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives. After any general election the Parliament shall be summoned to meet not later than 30 clays after the day appointed for the return of the writs.
That seems clear. Senator O’Connor says that all that would be saved by not adopting his amendment is a month’s salary ; that Parliament must meet within 30 days after thereturn of the writs. We therefore immediately jump to the conclusion that the writs are returnable on the 31st December. But, as Mr. Kingston would say, “ Nothing of the sort.” I can find nothing in the Constitution stating when the writs for the Senate shall be returnable. Section 12 says -
The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days of the proclamation of such dissolution.
It docs not say when the writs are to be returned. If I turn to the Electoral Act and endeavour to ascertain when the writs will be returned in case of an election for the Senate, I can find nothing to that effect. Section 165 of the Electoral Act - at page 367 of the Commonwealth statutes - provides that -
In elections for the Senate, the Commonwealth electoral officer for the State in which the election is held shall as soon as conveniently may be after the result of the election has been ascertained -
at the place of nomination declare the result of the election and the names of the candidates elected :
by indorsement under his hand certify on the original writ the names of the candidates elected and return the writ to the Governor of the State in which it was issued.
There is not a line as to when the writs shall be returnable. If I seek light from the section regarding the House of Representatives - section 89 - at page 355 of the statutes I find that it provided that -
The date fixed for the return of the writ shall not be more than 60 days after the issue of the writ.
So that there is a question of more than a month’s salary involved in Senator O’Connor’s amendment.
– The Governor of each State notifies the election of senators to the Governor-General under section 7 of the Constitution.
– I know that the writs will come from the Governors of the States ; and section 9 of the Constitution provides that -
The Parliament of a State may make laws for determining the times and places of elections for senators of a State ; of course subject to the Constitution, or to any laws that Parliament may provide. There is nothing in the Constitution or in our Electoral laws providing that the Governor of a State or the Governor-General shall fix any particular date for the return of the writs. He may make the term 60 days or 120 days. Therefore the Committee should understand that it is not a question of a month’s salary. The election must take place before the 31st December; and the writs for the Senate may not be returnable till the end of May. I am not troubling about the month’s salary, but I support Senator Pearce because, when the candidates for the Presidency - if there is more than one - appear for election, they should appear as ordinary senators, and should not have any advantage by coming before us in all the majesty of the President’s wig and gown.
– At the present stage of the debate the constitutional aspect of the matter appears to me to be quite beside the question. Senator O’Connor’s amendment practically insures what the Senate very strongly desired when this subject was last under discussion. What was desired was that the new President should be elected by the senators in office after a general election. We do not wish to see the President holding office by virtue of having been elected by men who might not be members of the Senate over which he was presiding. That was the point of the whole discussion. Seeing that that point is not touched by Senator O’Connor’s amendment, we might very well adopt it. It is clear that the next Senate will elect the next President. If we can be bound by a case in point, I would remark that in the other branch of the Legislature the Speaker will retain his seat until a new Speaker is elected. A similar arrangement should be made in the case of the Seriate. We may very well make the position of our President conform in this respect to the position of the Speaker of the House of Representatives. As the House of Representatives has framed its standing orders on lines similar to those laid down in Senator O’Connor’s amendment we should agree to it.
– I hope that Senator Pearce will accept the amendment proposed by the VicePresident of the Executive Council. We have no cause to treat our President less liberally than the House of Representatives treats its Speaker.
– That is not decided yet.
– It does not matter whether it is decided or not. Senator Pearce, Senator Stewart, and others have been members of different associations in their time, and they know that when executive officers have been appointed they have always held office until their successors were elected and installed. Why should we inaugurate a different practice in the Senate? The question of the six years’ term has been decided. The amendment of the Vice-President of the Executive Council does not involve that question. The whole point at issue is whether the President shall hold office until the day before a new Parliament meets. He would not be President on the day upon which Parliament met ; and, consequently, would not appear for election in a wig and gown. Certainly, therefore, there would be no undue influence brought to bear on honorable senators in electing a new President.
– It has been suggested that there may be some ambiguity in my amendment as it stands, and that it might apply to the case of a senator who went out for periodical election on the 3 1st December. To clear up any difficulty of that kind, I propose to withdraw my present amendment and submit a new one. I propose to leave Senator Pearce’s proposal as it stands down to the word “ Senate,” and then to add the words -
But if the place of the holder of the office has not become vacant on the 31st December following the periodical election, the office of President shall continue until the day next before the meeting of Parliament following that periodical election.
That will make it clear that it only applies to. the case of a President who does not go out on the 31st December. It does not apply to a President who does go out for re-election. In that case the office becomes vacant on the 31st December. If he has not to go out for election he remains a senator on the 31st December, and will continue to hold office as President until the first meeting of Parliament next after that election.
– Is the honorable and learned senator satisfied that that will apply to each new Parliament ?
– I do not think there is any doubt about it. My proposal makes it absolutely clear. There seems to be some misunderstanding as to the position I am taking up, although I thought I made it perfectly clear. I am submitting the view that the office of President should have a tenure of three years, but I say that instead of cutting the tenure short on the 31st December, the President shall remain in office until the day next before meeting of Parliament, which takes place after a periodical election. It may be - probably will be - a matter of not more than two or three weeks. As Senator Higgs pointed out, there may be cases in which it will be longer than that ; but the probabilities are that the elections for both Houses will take place together, and, consequently, that the Senate will meet within the next few weeks after the election. As Senator DeLargie and Senator McGregor have argued, we ought not to put our President in a worse position than that in which the presiding officer in another place is put. We should recognise the necessity of having in office an officer to administer the Department ; and the small amount of salary involved is not important.
Amendment, by leave, withdrawn.
Amendment (by Senator O’Connor) proposed -
That, after the word “ Senate,” line6, the following words be inserted : - “But if the place of the holder of the office has not become vacant on the 31 st December following the periodical election, the office of President shall continue until the day next before the meeting of Parliament following such periodical election.”
– I do not rise to discuss the matter generally, but merely to emphasize something said by Senator Higgs, who, I think, was perfectly .justified in looking, if I may say so, with suspicion on the amendment proposed. Senator Higgs was evidently in ‘doubt as to the additional term of office that would be given to the President after the 31st December, and he quoted the Electoral Act’ and the Constitution, accurately as I think, in support of his view. But I think Senator Higgs omitted, or did not notice, section 89 . of the Electoral Act, which settles the whole question. If we this year hold the elections for both Houses, as I think we may take it for granted we shall simultaneously, it will never be possible, under the Electoral .Act and the Constitution, for the President to retain his office for more than 30 days after the 31st December. The date fixed for the return of the writs must not be more than 60 days after the issue of the writs ; and if the writs for both Houses are issued at the same time this year, they will have to be practically simultaneously issued every succeeding three years at the same time. This year the writs will have to be returned at the end of the year, so that the full additional term which can be given to the present President is 30 days. I welcome the opportunity we have been afforded by Senator O’Connor of coming to a unanimous agreement on a question on which we ought to be unanimous, not only for the sake of the present President, but for our own sakes ; and I hope the amendment will be carried without a division.
Amendment agreed to.
Proposed new Standing Order, as amended, agreed to.
Motion (by Senator Pearce) agreed to -
That the following new standing order be» inserted: - “16b Whenever the office of President becomes vacant, whether such vacancy shall take place in terms of section 17 of the Constitution or of the immediately preceding standing order, the Clerk shall act as Chairman of the Senate prior to the election of the President.”
Senator PEARCE (Western Australia). - I move -
That the following new standing order be inserted : - ‘ 58a. The adjournment of the Senate may be moved at any time by, or on behalf of, a Minister of the Crown.”
The object is to separate two motions for adjournment which are entirely different, but which are now dealt with in one standing order. Honorable senators will see that in Standing Order 59 a motion for adjournment moved by a Minister, and a motion for adjournment moved by a senator, for the purpose of discussing some urgent business, are dealt with in an exactly similar manner, lt is highly desirable that the motions for adjournment should be dealt with in separate standing orders, and I should like the opinion of the Committee on the point.
– The new standing order seems to be a great improvement. There is no doubt that Standing Order 59 deals with motions for adjournment, which ought to be kept separate, and I can see no possible objection to the proposal now made.
Proposed new Standing Order agreed to.
Motion (by Senator Pearce) agreed to -
That the. following new standing order be inserted :- “59. (1 ) A motion without notice, that the Senate at its rising adjourn to any day or hour other than that fixed for the next ordinary meeting of the Senate for the purpose of debating some matter of urgency, can only be made after Petitions have been presented, and Notices of Questions and Motions given, and before the business of the day is proceeded with, and such motion can be made notwithstanding there be on the paper a motion for adjournment to a time other than that of the next ordinary meeting. The senator so moving must make in writing and hand in to the President, a statement of the matter of urgency. Such motion must be supported by four senators rising in their places, as indicating their approval thereof. Only the matter in respect of which such motion is made can be debated. Not more than one such motion can be made during a sitting of the Senate.
In speaking to such motion, the mover and the Minister first speaking shall not exceed 30 minutes each, and any other senator or the mover in reply shall not exceed fifteen minutes, and every senator shall confine himself to the one subject in respect to which the motion has been made. Provided that the whole discussion on the subject shall not exceed three hours.
That Standing Orders Nos. 17, 59, 60, 72, J 34, 136, 146, .147, 150, 168, 184, 202, 204, 227,292, 342, and 421 be reconsidered.
Standing Order 17 -
Whenever the office of President becomes vacant, which vacancy shall take place by reason of a periodical or a general election of the Senate, a senator, addressing himself to the Clerk, shall propose to the Senate for their President some senator then present, and move that such senator do take the chair of the Senate as President. Such motion shall be seconded by some other senator.
Amendment (by Senator Pearce) agreed to-
That the following words be omitted : - “Whenever the office of President becomes vacant, which vacancy shall take place by reason of a periodical or general election of the Senate.”
Standing Order, as amended, agreed to.
Standing Order 59 (Motions for adjournment of the Senate).
– In consequence of the adoption of the new standing order 59a, it will be necessary to strike out standing orders 59 and 60.
Standing Order negatived.
Standing Order 60 -
No second motion for the adjournment of the Senate shall be made on the same day, except by a Minister.
– I trust that the Committee will negative this standing order also.
– I have not been present previously this afternoon, and I am not aware of what has been done ; but I would point out that if a motion for adjournment is made, in order to bring forward a matter of pressing importance, that motion has to be made
After petitions have been presented and before the ordinary business of the day is called on. If the standing order be omitted, what is there to prevent a second similar motion being proposed at the conclusion of the debate on the first motion?
– Because in a new Standing Order 59a which we have just passed, it is provided that not more than one such motion shall be made during a sitting of the Senate.
– The question raised by Senator Baker is rather important if we study our own convenience. There may be two or more honorable senators with a very strong desire to move the adjournment of the House in order to debate a matter of supreme importance ; but, under the standing orders as at present framed, only the senator first called on can exercise the privilege. Can we not improve on that state of things? I believe it has occurred more than once that the senator first called on has disposed of his motion for adjournment in a few minutes, by withdrawing it, but the standing orders precluded any other honorable senator from submitting a similar motion, although his business may have been of great public importance. I have before thought that this was a flaw in our standing orders. I do not want to see the time of the Senate occupied any longer than is necessary with motions for adjournment ; but it does not seem right that the mere accident of being first called on, should give an honorable senator an opportunity which is not open to others. I recognise that without such a standing order opportunities would be afforded for stone-walling ; but I think the rule might be made a little more elastic.
– We have already carried a standing order providing that not more than one such motion can be made during the same sitting of the Senate.
Standing Order agreed to.
Standing Order 72 -
No petition shall be prevented after notices of motion have been given ; but when the mover of a motion is called on, or when an order of the day is read for the first time, a petition referring thereto may be presented.
– I move -
That the words “for the first time,” line 4, be omitted.
Why should we not be allowed to present a petition at any time? I hope honorable senators will agree that the amendment I suggest is a reasonable one.
– I do not think the matter is of great importance, but I point this out for the consideration of Senator Pearce. A matter may be debated at some length, and several honorable senators may have made their speeches upon it. A petition dealing with the question may then be presented and read, and there will be no opportunity of referring to the petition. It will be seen that under the amendment it will be possible for petitioners really to intervene in the middle of the debate and shut the mouths of honorable senators who have already spoken on the subject of the allegations contained in their petitions. That does not seem to be quite fair.
– I hope Senator Pearce will not press his amendment. If it is agreed to it may happen, as Senator Baker has said, that a petition may be presented just before the taking of a division upon an important question, and, the petition being read by the Clerk, may have the effect of influencing votes, for the simple reason that no opportunity is given honorable senators to reply to what may be stated in the petition. Petitions may be presented as soon as the Senate meets, and every good purpose is served by this provision.
Standing Order agreed to.
Standing Order 134 -
When the proposed amendment is to leave out certain words, the President shall put a question - “ That the words proposed to be left out stand part of the ‘question.”
– I move -
That the words “stand part of the question” be omitted, with a view to insert in lieu thereof the words “ be left out.”
The object of the amendment must be perfectly clear. If honorable senators read Standing Order 135 they will find that it provides -
When the proposed amendment is to insert or add certain words, the President shall put a question, that such words be inserted or added.
This does seem to me to be a most involved course of procedure. In one case the President, or Chairman, puts the question that the words proposed to be left out stand part of the question, and immediately afterwards we provide in the standing orders that where it is proposed to insert words the question put is “ that the words be inserted or. added.” It will be admitted that what I suggest will greatly simplify our procedure and render it more easily understood by persons who read the proceedings of Parliament. It must be clear that many who read the proceedings of Parliament are frequently confused in looking at the reports of divisions by the form in which the question is stated. I have no doubt that this standing order is a very old one.
– It is in use in every Parliament in Australia.
– Still, I ask honorable senators to consider this aspect of the question. We have, for instance, a clause before us for consideration, and some honorable senator, desiring that certain words which it contains should be left out, moves that they be left out. It would be reasonable to suppose that in subsequently voting in a division in pursuance of his motion that honorable senator would vote with the “ Ayes,” but under this standing order he has to vote with the “ Noes.” If immediately afterwards he desires to move the insertion of words in a clause in voting in> pursuance of that motion he votes with the “Ayes.” The difficulty is one which cropped up repeatedly when “ Mister Negative “’ was much in evidence in connexion with the divisions upon the Tariff. I put it to honorable senators to say whether it would not be better, as well as simpler, to have the question stated as I propose. It seems to me that I am following only the procedure adopted in Standing Order 135. Though this may be a somewhat grave departure from long-established precedent, I trust that the simplicity secured by the amendment will commend it to honorable senators. We have heard several times during the discussion on the standing orders, that we are wont to be too .anxiousto adhere to established precedents, and to “lean up against a post,” as Senator McGregorhas put it. We have, however, departed from long-established precedent in connexion with other standing orders, and what I propose is but another departure.
– The question now being raised is entitled to very grave consideration in view of the terms of the Constitution. There is a senator always, at hand, “Senator Negative,” who has a great deal to say in connexion with many of our divisions. What has happened here has been this : The question is put - “That the words proposed to be omitted stand part of the question,” and the voting is equal. The consequence is- that they do not stand, and we have a blank. The next question may be that certain words proposed to be inserted be so inserted ; the voting is again equal, the blank remains, and we are in a fix. Thishas occurred on more than one occasion. I really think that the amendment submitted by Senator O’Keefe, in view of the terms of the Constitution, is entitled to very full consideration by honorable senators. I draw attention to the matter because there is now no party feeling present, and only an anxiety to lay down fair and just principles guiding’ our procedure, and it is desirable that we should consider and determine the question which has been raised. At present, I think that Senator O’Keefe has suggested thebest form in which the question can bestated by the amendment he proposes.
– I am glad to hear the Chairman improve upon the remarks made by Senator O’Keefe in support of the proposed amendment. One of the main features of our standing orders should certainly be simplicity, as the less ambiguity there is about them the more they will be appreciated. As Senator O’Keefe has remarked, the man in the gallery or in the street may have some difficulty in understanding how a vote has gone in reading the way in which questions are stated under the present practice. Senator O’Keefe has proposed a simple way of putting a question which will be as effectual as the method at present adopted. I am glad to hear the Chairman of Committees say that he is in favour of the alteration proposed. I think we should accept the amendment.
– So far as simplicity is concerned, I think the distinction is without a difference, as in my opinion one form is as simple as the other. As to the man in the street trying to read and understand outstanding orders, I do not think there is any such man.
– I did not refer to the standing orders.
– I think Senator De Largie did. There is no doubt that under our Constitution this is a very important point. If the amendment is carried, it will give an advantage to the mover of any motion.
– It will give an advantage to the Government.
– It may be to the Opposition, or to whoever moves the motion.
– The Government are not likely to amend their own Bills.
– This will cover not only Bills, but motions, and almost every question which may come before the Senate. Underthe amendment, the mover of a motion, it seems to me, will have an advantage. I do not see how we can get over that, because some one must have the advantage in a tie under our Constitution. The question is, who ought to have the advantage, the person who brings forward a proposition or’ those who oppose it? I cannot see why either should have an advantage.
– It should be the person who brings forward the motion, because he will have considered it most.
– No ; he desires to make a change.
– He desires to make a change, and those opposing his motion do not desire to make a change. I cannot see any logical reason why either those who bring forward a motion or those who object to it should have the advantage in a tie. At the same time I am willing to admit that somebody must have it.
– There is a very substantial consideration governing the question as to who should have the advantage of a tie. There is a recognised parliamentary principle that unless there is a majority in favour of an alteration in an existing law it should stand. The general parliamentary practice is that before an alteration of an existing law can be made there must be a majority in favour of the alteration. That political principle is also embodied in our Constitution, which provides that if the votes are equal on a particular question the question passes in the negative. The amendment proposed by Senator O’Keefe seems to me to carry out exactly the principle of the Constitution.
– Everything depends on how the question is put.
– That is so ; but the principle contained in the Constitution is that an attempt to alter an existing law cannot succeed unless there is a majority in favour of it.
– The onus is placed on those who desire an alteration.
– The onus is placed on those who desire an alteration, and the way in which Senator O’Keefe proposes that the question should be submitted is in strict accord with the Constitution. I think the honorable senator has suggested an improvement of the standing order.
– I think Senator O’Keefe is to be complimented upon discovering the necessity for this amendment, which would never have occurred to honorable senators who have been long in Parliament, because they are so used to having the question put in the way provided in the standing order that for them it has acquired a sort of sanctity. When we come to look into the matter it is perfectly clear that there are a great many objections to the present practice. Whilst the principal objections are those which arise out of the section of the Constitution which has been referred to, I think it is important also that wherever we can do so we should say exactly what we mean in the standing orders. The question put before the Senate in this case is that certain words be left out. “Why should not that question be put directly? Then everybody would understand what was being done. An honorable senator moves that certain words be left out, and if the amendment is agreed to, those who believe that they should be left out will vote “Aye,” and those who think that they should not be left out will vote “No.” It appears to me that not only those who are versed in parliamentary law, but everybody, should understand what is done, and that a question should be put exactly in the way in which we intend it to be decided. There is the other reason in support of the amendment, which has been very forcibly put by the Chairman of Committees. The principle underlying section 23 of the Constitution is that every one who brings forward a proposition must establish it by a majority, and if he cannot do so, he fails. Surely that is a right proposition
– It will be carried out most effectively by the amendment.
– I think it will. I do not think we should allow any of these old forms, which are not applicable to our Constitution and our procedure under it, to apply now. I therefore thoroughly approve of the amendment proposed, and I hope it will be carried.
– I can quite understand Senator O’Connor thoroughly approving of this amendment, because it is obvious to any one who has had even a slight experience of parliamentary practice that it will prove an excellent thing for the Government. I have to congratulate Senator O’Keefe as a supporter of the Government upon moving the amendment.
– The Government knew nothing about it.
– That is so.
– I disclaim any intention to suggest collusion. I merely congratulate Senator O’Keefe as a Government supporter.
– That was not my motive. I moved the amendment purely for the sake of simplicity.
– I quite understand that, but I congratulate the honorable senator, as a supporter of the Government, upon doing them a good turn. The position in which we find ourselves in the Senate generally is that the Government introduce certain measures for our consideration, and expect them to be carried.. If the Government are in a position to say to the Opposition “ You cannot beat us,” they can carry every clause of their Bill under this amendment, whereas the ordinary notion of parliamentary government is. that a Ministry should only exist for so long as it can command a majority, and no longer. Under this amendment it would be no longer necessary in any case for the Government to have a majority at its back to carry every proposal which they desired to be passed. So long as the Government were equal, in number to the Opposition in division, every clause or measure which they submitted would be carried. That is a position which I do not think is either sound or constitutional.
– In the case of every clause of a Bill the affirmative must be established by the Government.
– I am sure that my honorable and learned friend will see that, if the standing order were amended as Senator O’Keefe desires, the position in every case would be that unless the Opposition were in a majority of one they could not carry theirview ; and even if they were equal in number with the Government, they could not carry their view ; the clause would stand part of the Bill, and the Government would have their way.
– The question put from the Chair would be that the clause stand as printed.
– The amendment of Senator O’Keefe proposes that the question to be put from the Chair shall be that the words proposed to be left out shall be left out.
– It alters the case in regard to an amendment, but not in regard to a clause.
– It is the duty of the Opposition to amend a clause if it is unsatisfactory ; and it is the duty of the Government to carry the Bill as it was introduced.’ Do the Government come here with a Bill and say to the Opposition - “ Amend what clause you like” ; or do they say - “ The Bill embodies our principles, and we wish to carry every clause 1” Suppose that the Opposition wished to amend a clause in a Bill. Under this amendment of Senator O’Keefe it could not be done if, in division, the two parties were equal in number ; but in the same circumstances the Government could carry every clause in the Bill.
– Why should they not’
– I cannot understand such a state of things with this Government, that they would attempt to carry on the business of the country unless they had a majority. My honorable and learned friend is assuming that it is perfectly right and decent, and in accordance with’ parliamentary traditions, to carry on -the business of the country, not when they command a majority, but when the two parties are equal in number. I ask honorable senators, no matter where they sit, not to accede to a proposal which is a breach of parliamentary procedure ; and if they like parliamentary decency so far as the Ministry are concerned.
– In the case of the second reading of a Bill, or of the passing of a clause of a Bill, the Government have to maintain the affirmative.
– But the business of the Opposition is to amend a Bill, and under this amendment they could not amend a clause unless they commanded a majority.
– If the Opposition were equal in number with the Government they could amend everything.
– They could strike out the words.
– It could not be done when the numbers were equal. Inasmuch 4is the Opposition could not amend a clause without a majority, just in such proportion could the Government carry their proposals when the numbers were equal. I do not like the amendment, because I am perfectly certain that it will bring about that position.
Senator O’KEEFE (Tasmania).- I did not anticipate when I moved this harmless amendment that it would arouse, any party feeling. It was moved for the purpose of insuring simplicity and continuity of procedure. Whenever a senator moves to insert any words, the President or the Chairman is compelled by Standing Order 135 to put this question : “ That the words proposed to be inserted be so inserted.” Why, then, when he wishes to leave out certain words, should not the question be: “That the words proposed to be left out be so left out”; so that every honorable senator might know exactly what he was voting for or against ? Senator Baker was in error in assuming that I was paying special attention to the views of the outside public as regards the forms of procedure here. What I said was that those persons who were interested in the proceedings of the Senate should be enabled to understand clearly what they were reading in the newspapers, and what a division was about when it was taken Unless a person is versed in parliamentary procedure, he must be considerably confused when he is reading his newspaper. The manner in which the questions are reported in the press is considerably involved and puzzling to such persons. . It is quite right, I think, to consider the convenience of all persons who wish to understand from the press what the Senate is doing. We shall establish a very simple and intelligible practice if my amendment is carried. I am sure that Senator Clemons will accept my assurance that it was not moved in the interests of the Government. .
– The honorable senator will be a benefactor - perhaps unexpectedly - if it is carried.
– I think I shall be a benefactor to the Senate and to the members of the public who take an interest in our proceedings.
– Evidently there is very good reason for making this amendment, whatever its effect on parties might be. I am given to understand that the representatives of the great daily newspapers of New South Wales al ways follow the rule which Senator O’Keefe wishes to establish. Whenever a question is put from the Chair - “ That the words proposed to be struck out stand part of the clause,” and the division shows seventeen “Ayes” and fifteen “Noes,” the reporters, in order that the readers may see clearly what was done, publish the “Noes” as “Ayes,” and vice versa, and state that the amendment was negatived by seventeen votes to fifteen. It is quite evident’ that Senator O’Keefe understands the great difficulty which the reading public have in understanding our methods of procedure. I shall support his amendment.
– I could have sympathized with Senator O’Keefe a year or two ago, before I got accustomed to the way in which questions are put from the Chair. I can assure my honorable friend that he will very soon get accustomed to the procedure. If the amendment is carried it may lead to greater clarity in the minds of honorable senators as to what question is proposed ; but it will give an advantage to the Government - who, of course, will submit the majority of proposals ; and it will, I think, destroy the principle of majority rule. I do not think that any measure should pass into law until it has been indorsed by a majority in the Senate and in the other House. If an honorable senator has a question to submit, and he cannot obtain a majority of one, it ought not to be carried. The amendment arises out of a proposal which was made that the President should have an extra vote when the numbers were equal. With six senators coming from each State, that would give the State which he represented an extra representative. Referring to this subject, Quick and Garran, in their Annotated Constitution, say -
The object of providing that the President, unlike the Speaker of the House of Representatives shall be entitled to a vote in all cases, is that the State which he represents may not be deprived of the benefit, of the constitutional privilege of equal representation. He is not given a casting vote as well, because that would give his State more than equal representation. Some other provision had to be made for the case of an equality of votes, so the Constitution declares that in that event the question shall be resolved in the negative. This is based upon the universally recognised principle, that affirmative action in any legislative body must be supported by a majority.
– That is the principle upon which we act.
– The honorable and learned senator may bring down a Bill containing a clause, to three parts of which the Senate may be willing to agree, whilst it may disagree with the fourth part. He argues that we can negative the whole clause. But we may not wish to do so. We may desire to negative only part of it. Because we do not desire to negative three parts of the clause, we have to accept the whole, being unable to carry a motion that a certain portion of the clause be omitted. Our motion that certain words be left out is lost, because we cannot get a majority. Some of us in the Senate have often taken up strong positions on certain proposals with regard to kanaka legislation, alien restriction legislation, and so forth. I hold that if we could not command a majority of one- third of the peopleof Australia, it might not be wise to put sucklaws into effect. I believe, however, that we can command a one-third majority of the whole population. When we ask that the Government shall have to command a majority of one, we are standing by the principle of the Constitution, and the very basis upon which the Senate is established. I regret that Senator O’Keefe did not give us notice of this proposal, under which, when voting upon certain questions, we might find that representatives of the States were* arrayed in such a fashion that the gravestinjustice would be done in consequence of the negative being in favour of the Government.
– That must cut both ways.
– There is no injustice in demanding that there shall be a majority in favour of every proposal that is carried. It is the universally recognised principle that affirmative action shall be decided by the majority.
– And, therefore, an amendment ought to have a majority in its favour.
– Senator O’Connor knows very well that the negative means that we stand as we are . until those who wish to make a change are able to alter the opinions of the majority. The negative has been of great service in the Senate on many occasions. In fact, “ Senator Negative,” as it has been described, has made his appearance very often. It is only common sense and logic to require that anybody who submits a proposition should at least secure a majority of one in its favour before it is carried. The proposal, that certain words be omitted, does not mean affirmative action. The Government, or the senator who brings forward a motion, proposes affirmative action. There are plenty of cases in which honorable senators move that certain words be struck out with the view of allowing existing circumstances to remain as they are. I agree with Senator Clemons that those of us who oppose this proposal can quite understand the readiness with which the leader of the Government fell in with the proposition. It gives him another vote.
– The honorable senator himself may be the leader of the Government at some time, and then he will get the benefit of it.
-I expect to be in opposition for many years to come. As the song says - “ It may be for years, or it may be for ever ! “ But whether I am in opposition, or supporting a Government, I hope I shall always adhere to the principle that no legislation shall be allowed to pass unless it has in its favour a majority of one at least.
– Senator O’Keefe’s proposal is very taking at first sight, and I was inclined to support it. But, after listening to the arguments, it appears to me that there is one principle only by which the Committee will be wise to be guided. It has been urged that if any proposition is to be carried, or altered, or amended, the onus of securing a miserable majority of one is cast.
– The onus is cast upon whom ? On the person who wants to make the alteration.
– No ; it is cast upon the Senate to have a majority before we can pass a law. My honorable and learned friend, Senator O’Connor, has said that some of us regard the present way of putting the question - “That the words proposed to be omitted stand part of the question “ as a superstition. But is it not probable that the framers of the Constitution had in their minds the idea that that is the way in which questions would be put? Is it likely that they had any idea of altering the method in which questions have been put for centuries ? The framers of the Constitution gave a vote to the President so as to preserve equality of voting to the State represented by him, and they safeguarded the practice by providing that, unless a majority was obtained, a question must pass in the negative. I have no doubt whatever that the framers of the Constitution had it in their minds that questions would be put in accordance with precedent. They could not have thought otherwise. They knew that questions were always put in the one way, and they did not dream that they would ever be put in another way. Would Senator O’Connor like to see a tax of £40,000 or £50,000 imposed upon the people of the Commonwealth,, without having a majority of one in its favour ?
– Certainly not, and it could not be done. It is impossible thatthat could happen.
– The honorable and learned senator may say that it is impossible, because a tax would have to be imposed by a Bill which the Senate could not amend. But I am using the illustration to test the value of the argument. Would Senator O’Connor like to see a clause involving an expenditure of £40,000 or £50,000 a year pass by no majority at all, simply because it was put in such a way that the question was resolved in the negative ? I am supposing that some important principle might be engrafted upon Commonwealth legislation when there was not a majority of the Senate in its favour.
– It could not be carried then ; this only applies to the leaving out of words.
– Does my honorable and learned friend mean to say that the leaving out of words may not alter the whole character of a clause, and may not give to it the very opposite intention to what the f ramer had in his mind ?
– Exactly ; and why should not the mover of an amendment have to carry it by a majority ?
– I admit it cuts both ways ; but we are on. safe ground in following the practice which has been pursued by Legislatures for centuries.
– This subject ought not to be discussed from the point of view of the Government or the Opposition, but with the object of simplifying the procedure of the Senate. I do not think it should be argued that in connexion with a Bill the Governmen t would secure an advantage from having amendments put in the manner proposed. It might just as well be said that the Opposition would secure an advantage. If there is any advantage to be gained, there is no more reason why the Government ‘should not obtain it, than why the Opposition should have it. But I do not put the question in. that way.
– Nor did I.
– Yes. The honorable and learned senator said that he wanted all legislation to be carried by a majority. He does not seem to recognise the altered condition of affairs in the Senate, as compared with the condition of things existing in any Parliament in which the existing custom has grown up. Take a simple case. Say that a Bill provides that the GovernorGeneral “shall call Parliament together.” and that some honorable senator desires to alter the word “ shall “ to “ may.” Under our practice the first proposal that he would submit would be “ That the word ‘ shall ‘ be struck out, with a view of inserting the. word ‘may.’ “ The question would be put “That the word ‘shall’ stand part of the clause.” Suppose the votes are equal, and that the Government and the Opposition attach very great importance to the question. The result would be that the word would be struck out, because the question would pass in the negative. Then the question would be - “That the word ‘may’ be inserted.” The same anxiety for supremacy might exist, and the voting might be the same. Both sides would be equal. Consequently the word “ may “ would not be inserted, and the Senate would be in a difficulty. But take the course of procedure proposed by Senator O’Keefe. Under his proposal, the proposition would first be - “That the word proposed to be left out be so left out.” If the voting was equal, the question would pass in the negative, and the word would not be struck out. The clause would remain as it was, and no difficulty could arise in consequence of the equal voting.
– The difficulty of the Government ?
– I am not thinking of the present Government, who are not going to be in office for ever.
SenatorClemons. - I did not speak of this Government ; I said the Government.
– I contend that the Government has as much right as the Opposition to the benefit of the negative. If the question were so vital that the Opposition thought the salvation of the country depended on it, the Opposition could punish the Government. The next question is “That the clause as amended stand part of the Bill”; and then, if the voting be not equal, the clause does not stand part of the Bill. There is no difficulty in this connexion which an Opposition of strength and substance cannot get over. I do not think there is much in Senator Higgs’ argument that there might be three parts of the clause of which the Opposition might approve, because that would only show that the matter was not of sufficient importance to cause a difficulty. If it be a case of simply striking out words without inserting any in their place, there must be a majority. Why should we be able to strike out words if we have not a majority? The amendment will, in my opinion, prevent our getting into the difficulty which would be caused by what Senator Downer and other legal gentlemen would call a hiatus in a clause. When we become accustomed to the working of the standing order as amended, we shall find it prove quite simple to both the general public and ourselves.
Senator CLEMONS (Tasmania). - I am not referring to this particular Government, but simply contending that any Government ought to remain in office by virtue of majority, and not by virtue of equality.
– Then those who oppose the Government should oppose by majority.
– In ordinary parliamentary practice the Government deliberately undertake the responsibility of setting the parliamentary machine in motion, and take charge of the business - the Government must initiate everything and move everything. It is no part of the duty of the Opposition to take charge ; and the effect of Senator O’Keefe’s amendment must necessarily be that a Government may go on with the initiation and management of business simply because they areequal in numbers with theOpposition. That is flying in theface of the parliamentary axiom that a Government must govern by majority. I admit that the proposed amendment would work both ways; and it would stand self-condemned if it did not. There are opportunities for initiation by the Opposition, and in their case, too, they should have a majority in order to carry any proposal they make. In, ninety-nine cases out of a hundred the onus of initiation is rightly on the Government, and we ought to have respect for the parliamentary axiom I have already quoted. The Opposition has not equal power with the Government to bring down Bills and submit proposals, and inasmuch as the onus is on the Government, they ought to have a majority or fall.
– It would be better to stick to the old practice, because otherwise an amendment would very often give the Government an advantage which, in my opinion, they ought not to have. In the Legislative Council of Victoria there were very often four members of the Government ; and in the Senate we have two Ministers, and may have a third honorary Minister by - and - by. Three Ministers would represent one-twelfth of the whole number of the Senate, and that, no doubt, would be a big advantage to the
Government. On that score,I rather feel inclined to vote against the amendment. Because if the Government cannot carry a proposal by a majority of one, it is evident that they ought not to be able to carry it.
-If the voting be equal in Committee the clause is lost.
Senator McGREGOR (South Australia). - The conditions in the Senate are very different from those of an ordinary legislative body. Senator Clemons knows very well that we do not make and unmake Governments in this Chamber. That is done in the House of Representatives, where the greater portion of the legislation is initiated. The question we are now discussing does not arise in the other House, and the reason, which has already been explained, is that each State represented in the Senate has to have equal power. That is the reason why we have deprived the President, when in the chair, of a casting vote. Under the circumstances, the Government have the right to any advantage there may be under the amendment, though, in my opinion, I do not think there will be any great advantage in the long run. Seeing that we have no power to affect the existence of the Government, we should make our standing orders as simple as we possibly can, in order to avoid difficulty.
– I should like honorable senators, who are being misled by generalities, just to follow me in a few words on the practical side. It is only by talking generalities that honorable senators can confuse themselves, and be led to vote against the amendment. The principle followed in the amendment is the principle of the Constitution, namely, that nothing can be carried except the person affirming the proposition has a majority of votes ; and, surely, that is a right principle. First of all, take the case of the Government : a Bill is introduced, and they must have a majority of votes at each stage before the measure can be carried. With regard to every clause in Committee the Government must have a majority.
– Not if Senator O’Keefe’s amendment is carried.
– I beg the honorable and learned senator’s pardon. The question put in Committee will be that the clause as read stand part of the Bill, and that question will have to be carried in the affirmative. If the votes are equal the clause will not be carried. Every motion submitted by the Government must be affirmed by a majority before it can succeed. Where an amendment is to insert words it is quite clear that either the Government or the person who moves the amendment must have a majority. Where the amendment is to insert words only, that is the only form in which the question can be put ; and, as I say, the amendment must be carried by a majority. But where the amendment is to leave out words with a view to insert others, the procedure consists of two steps. According to our present practice in regard to the first step of leaving out the words, the onus is placed not on the person who is moving the amendment, but on the person who is maintaining that the original clause is good. Surely that is ridiculous. But at the other stage, as pointed out by Senator McGregor, the onus is shifted to the other side, and it is the person who wants to insert the words who has to prove the affirmative. Is not that perfectly absurd 1 It seems to me that only those who have lived in the old atmosphere of parliamentary practice for many years could fail to see the absurdity of it at a glance?
– An atmosphere in which the same conditions do not exist.
– That is so. Is it not utterly absurd that we are to lay the onus on one person in regard to the first step where it can make a difference, and on another person in regard to the second step ? If honorable senators take a practical view of the matter they must come to the conclusion that Senator O’Keefe is absolutely right, and that it is only by talking generalities that his position can be attacked.
Question - That the words proposed to be omitted stand part of the standing order - put. The Committee divided.
Majority … 7
Question so resolved in the negative.
Amendment agreed to.
Standing Order, as amended, agreed to.
Standing Order 136 consequentially amended and agreed to.
Standing Order 146-
If the Senate resolves the previous question in the affirmative, thereby resolving that the original question be not now put, the original question and any amendment thereon before the Senate are thereby disposed of, and the Senate shall proceed to the next business on the notice-paper.
– I move -
That the words “and any amendment thereon,” line 4, be omitted.
This is the standing order which lays down the practice governing the moving of the previous question. We provide here, that not only can the previous question be moved to the original question, but that it can also be moved to the original question when an amendment has been moved to the original question. According to May’s Parliamentary Practice, I think the previous questioncannot be moved in the House of Commons to the original question when an amendment has been moved upon that question. May says, at page 269 -
In the Commons the words of this motion are - “That that question be not now put,” and if it be resolved in the affirmative, the Speaker is prevented from putting the main question, as the House have thus refused to allow it to be put. The motion may, however, be brought forward again on another day, as the decision of the House merely binds the Speaker not to put the main question thereon at that time. If the previous question be resolved in the negative, the original question on which it was moved must be put forthwith, no amendment, nor debate, or motion for adjournment being allowed, because as the House have negatived the proposal - “That the question be not now put,” the question must accordingly be put at once to the vote. The previous question has been ‘moved upon the various stages of a Bill, but it cannot be moved upon an amendment ; though after an amendment has been agreed to, the previous question can be put on the main question as amended.
That seems to me clearly to indicate that in the House of Commons the previous question cannot be moved when an amendment has been moved on the original question.
– Unless the amendment is carried.
– Until after the amendment is carried. I think there is a good reason for that ; because if we put the previous question when there is an amendment and an original question before the Senate, we shall be voting on three questions at the one time. We shall vote as to what we wish to do with the original question, what we wish to do with the amendment, and what we wish to do with the proposal that the question be not now put. Surely it was never contemplated that the Senate should be asked to give a vote which will decide three questions at one time ?
– The intention may be to shelve the whole question.
– It may be taken to mean that the amendment has been carried, and has become part of the original question.
– It may also be implied that the amendment is still before the. Senate, because, if honorable senators will look at the next standing order, they will find that it says, “ The question, and any amendment thereon, shall be put forthwith without debate.”
– The matter is of no importance, because, if the majority are against the amendment and the original proposal carrying the question will settle the. whole matter. And, if the majority is against deciding the original question, it is not likely that the amendment could be carried any more than the original question.
– I remind the honorable senator that wo might be prepared to vote for the previous question if moved to the original question, whilst we might desire to debate the amendment ; and under’ this standing order we should be debarred from doing so, unless what is meant is that the amendment has been incorporated in the main question, when, of course, it would become the main question, as it would have superseded it.
– I cannot follow Senator Pearce in this, and I am rather surprised to find my honorable friend relying on the practice of the House of Commons to support his view. It only shows that we are all liable to quote the devil in support of our purpose.
– The note to the standing order refers us to May’s Parliamentary Practice.
– I admit that it is quite a legitimate argument. I propose to deal with the matter altogether outside of that. As the standing order is before the Senate it means the original question, and any amendment of it. Because it will be clear that if an amendment has been carried on the original question, and the previousquestion is moved and carried, both the amendment and original question will be disposed of. It also provides that if an amendment has been moved to the original question, but has not been put we may intervene with the previous question, and if it is carried then the original question and the proposed amendment are disposed of. Why should not that be so? Why should not any proposed amendment be treated in the same way as the original question, when we know that the principle of the previous question is the intention to avoid committing the Senate to an expression of opinion upon the original question at all 1 And that will certainly apply equally to any amendment of the original question. If the standing order were not as here proposed, what would follow 1 An amendment would be proposed, and so long as it remained undisposed of, the previous question could not be moved, though the amendment might involve only the alteration of a single word without in , any way altering the sense of the main question. The very object of moving the previous question is to prevent honorable senators being forced to an expression of opinion upon the original question. If they are required to vote on an amendment of the original question, they must express an opinion on the original question ; so that the very object of the previous question would be defeated. The previous question is not very often used, but it is sometimes used.
– It is a system of gag.
– No ; it is not a system of gag. There may be a proposition put before the Senate which, in the abstract, is perfectly true, and which under other circumstances would be acceptable; but at the particular time it may not be convenient or right, or for some other reason the Senate may not desire to express an opinion upon it ; and it is a proper and convenient parliamentary way out of the difficulty to move the previous question. That is to nullify it, and to say that we shall not express any opinion about it at all. It is a useful rule, and a proper power for the Senate to possess. We should, however, be deprived altogether of this power if Senator Pearce’s amendment is carried. Because if any honorable senator moves an amendment upon the original question, however slight, the Senate will be forced to pronounce an opinion upon that amendment, which means an opinion upon the main question, before the previous question can be applied. Honorable senators will see that there is a series of rules here dealing with the previous question. Take Standing Order 150-
The previous question temporarily supersedes the original question, and any amendment, thereon, but in debating it the original question, and any amendment, may be debated.
There is nothing to prevent honorable senators from debating both the amendment and the original question when the previous question has been moved. There is nothing to prevent the freest possible discussion on the amendment, but once the previous question is carried, both the amendment and the original question are superseded. In what respect is an amendment which has been carried different from an amendment which is merely proposed 1 If an amendment which expresses the ascertained will of the Senate may be superseded, for what reason should we not supersede an amendment which has only been proposed ? To carry the amendment of Senator Pearce would be to enable any one, simply by moving an amendment, to prevent the previous question being put until the whole mischief, had been done, that is to say, until the Senate had actually been called upon to express an opinion. I do not see any advantage in the proposal. My honorable friend has given some reasons, but I do not think he showed that it possesses any advantage, except that it is the House of Commons’ practice. Senator Baker is a much better authority on that subject than I can pretend to be, but according to the passage in May which is cited in the marginal note, it is not. It reads as follows : -
The previous question has been moved upon the various stages of a Bill, but it cannot be moved upon an amendment ;
You cannot prevent an amendment from being voted on by moving the previous question. That is perfectly right, and that would be our practice - though, after an amendment has been agreed to, the previous question can be put on the main question as amended.
So it can be done here, and Senator Pearce admits that it ought to be done. But that does not say that where an amendment has only been proposed, the previous question may not be put. I can find no statement in May that where an amendment has only been proposedit cannot be superseded by the previous question.
– How does the honorable and learned gentleman dispose of these words “but it cannot be moved upon an amendment “?
– When an amendment has been proposed, the previous question cannot be moved to prevent that amendment from being voted upon.
– My reading of the passage is that the previous question cannot be moved on the original question until the amendment hasbeen disposed of.
– No. All it means is that a member cannot intervene and prevent an amendment from being moved on the original question by moving the previous question. I hope that the standing order will be left as it is, otherwise the whole object of moving the previous question might be defeated.
– I think that Senator Pearce has entirely overlooked one point, and that is that, in framing these rules, the Standing Orders Committee entirely departed from the principle laid down in May as to the previous question. They acted deliberately after having discussed the subject two or three times. In the House of Commons the previous question is moved, and treated as an amendment, but in this code it is proposed that it should be treated as an original question which supersedes the main question. That is the fundamental difference. The committee were induced to arrive at that conclusion because it seemed to them that it would be proper and convenient that the Senate should have the opportunity of declining to vote, or to express an opinion on any question brought forward, or on any amendment thereto. I was exceedingly astonished to hear Senator Pearce quote the standing orders of the House of Commons as binding on us when we are proposing to make new standing orders, which may or may not follow its rules. The question is, not what its rules are, but what rules will be convenient to the Senate.
– Yes ; but the Standing Orders Committee deliberately made a marginal note referring me to the passage in May, which I quoted.”
– It referred the honorable senator to the practice of the House of Commons, but it did not say that the rule was identical with that practice. If it has misled the honorable senator, I am sorry. Marginal notes are very often left as they stand after the clauses to which they relate have been amended. I am not quite sure, butI think that this standing order was amended. It seems to me that these standing orders are complete as a whole. If the honorable senator will refer to No. 150, he will see that the previous question temporarily supersedes the original question and an amendment. It is put, not as an amendment, but as an original motion, which supersedes both the original question and the amendment. I do not regard it as of very much importance. I do not think that the previous question has been moved once in the Senate during a period of over two years. In my experience it is very seldom resorted to, but when it is resorted to it certainly ought to be in a form which would enable the Senate to say that it declined to discuss the original question any more. This rule is intended to be an improvement on the practice of the House of Commons, and I hope that it will be adopted.
Senator PEARCE (Western Australia). - I had a very good excuse for quoting the passage from May. When I read the marginal note to the standing order, which was placed there I presume by the Standing Orders Committee, “ Present House of Commons practice - May, page 269,” I, like an unsophisticated layman, turned to that work, where I found the practice set out for moving the previous question. I am now told that I should not have referred to May, and that this rule is intended to establish an entirely new practice. I see that my objections are not valid, and therefore I ask leave to withdraw my amendment.
– The Minister ought to look through the marginal notes to see that none of them are misleading.
Amendment, by leave, withdrawn.
Standing Order agreed to.
Standing Orders 147 and 150 agreed to.
Standing Order1 68 -
Every senator present within the Bar when the question is stilted, except the President or the Chairman of Committees in the Chair of Committees, shall vote.
-In its present form the standing order might be construed to mean that every senator should vote except the President or the Chairman of Committees. What is meant, I think, is that it should be optional with them to vote.
-It ought to read, “The President in the chair.”
– If he is in the chair, he is bound to vote.
– The rule refers to the President when he is in the chair. A very good reason why it should be optional with either the President or the Chairman to vote, is that he cannot retire when a division is called for. I move -
That, after the word “stated,” line 2, the words “shall vote” be inserted.
– I think that the framers of the Constitution intended the President or the Chairman of Committees to vote on every occasion when a division is taken.
– It does not compel them to vote, Being in the chair they cannot walk out of the chamber. They ought not to be forced to vote, simply because they are bound to be here.
– I see the force of the remark.
Amendment agreed to.
Amendment (by Senator Pearce) proposed -
That, after the word “Committees,” line 3, the words “with whom voting shall be optional” be inserted.
– Suppose that the numbers are equal ; is not the Chairman of Committees obliged to vote ?
– No. The question passes in the negative.
– Senator Walker does not vote every time. He is occasionally absent.
– I think that Senator Baker has misunderstood the purport of my question. What I asked was whether, when the numbers were equal, the Chairman of Committees had not to vote once.
– He has not a casting vote.
– He need not vote unless he likes?
Amendment agreed to.
Amendment (by Senator Pearce) agreed to-
That the words “shall vote,” line 4, be omitted.
Standing Order, as amended, agreed to.
Standing Order 184 -
On every order for the reading of a Bill, the title only shall be read.
– I move -
That the following words be added, “and the Bill shall in the meantime be printed.”
This rule involves a question of some importance to private senators. The Government are always in a position to have their Bills in print when they are presented. It is necessary for a Bill to be in print before it can be read a first time. A private senator has no authority to get a Bill printed before he gets leave to introduce it, and unless the Government arranged to have the Bill printed for him it would have to be done at his expense. It would be just as well to lay it down in the standing orders. A Government may be bitterly hostile to a Bill introduced by a private senator, and may refuse to print it.
– A standing order was proposed by the Standing Orders Committee that -
No Bill shall be read a first time unless the same be in print.
That was struck out by this Committee as being unnecessary. It was said that Bills would always be in print, and that it was of no use providing for what was always done. Now the opposite view seems to be taken. Would it not be well to restore Standing Order 183 ? It was a good standing order, and, in my opinion, ought not to have been struck out.
Senator PEARCE (Western Australia). - The standing order alluded to by Senator Baker might be taken to be merely an instruction to a private senator that he must get his Bill printed before it could be read a first time. What I propose would be an instruction to the officers of. the Senate that on leave being given to introduce a Bill, it should be printed.
Senator Sir RICHARD BAKER (South Australia). - If the proposed standing order be inserted it will be possible to read a Bill a first time before it is printed. It ought to be provided that before a Bill is read a first time it should be in print. But there need not be the slightest fear that any honorable senator would not be able to get a Bill printed. I can assure Senator Pearce that it is the universal practice in all Parliaments that I ever heard of, that if any member wants to introduce a Bill, and obtains leave, it is printed as a matter of course.
– I bow to the superior knowledge of Senator Baker, and beg leave to withdraw the standing order.
Amendment, by leave, withdrawn.
– Will Standing Order 183 be re-inserted?
– It cannot be done now ; we are merely reconsidering certain standing orders.
Standing Order agreed to.
Standing Order 202-
No notice may be taken of any proceeding of a Committee of the Whole, or of a Select Committee on a Bill until such proceedings have been reported.
– I move -
That the following words be added - “but the Senate may at any time order the Bill to be printed as amended in Committee todate.”
It may happen that a number of alterations may be made in a Bill in Committee, and progress may be reported, after which a number of other Bills may be discussed. After a considerable interval of time, the original Bill may be debated again in Committee, and honorable senators may have forgotten what was previously done. The Senate should have power to order such a Bill to be printed, showing the amendments made up to date. It was done last session on one or two occasions, though I do not know whether there was anything in the standing orders to justify it.
– I do not think that the amendment is necessary. The Senate can order a clean print of a Bill to be made without a standing order to that effect. Still, there is no harm in the proposal.
Amendment agreed to.
Standing Order, as amended, agreed to.
Standing Order 204-
The Chairman shall sign with his name atlength, a printed copy of every Bill to be reported with any amendments fairly written thereon ; and also date, and sign with bis initials, any amendments, and any clauses added in the Committee ; and the Bill so signed shall be handed by the Chairman to the Clerk when he makes his report to the Senate.
– I think that this standing order might be put in a somewhat better form. Instead of saying that the Bill so signed shall be handed by the Chairman to the Clerk when he makes his report to the Senate, it would be better to say that when the Chairman makes his report he shall hand the Bill so signed to the Clerk. We may as well make our standing orders as intelligible as possible. I move -
That all the words after “ Committee,” line 5, be omitted, with a view to insert in lieu thereof the words “and when the Chairman makes his report he shall hand the Bill so signed to the Clerk.”
Amendment agreed to.
Standing Order, as amended, agreed to.
Standing Order 227 -
If the House of Representatives shall return such Bill with any of the amendments made by the Senate disagreed to…… the Message returning the Bill shall be printed . . . and a future time fixed for taking the same into consideration in a Committee of the whole.
– I think we ought to strike out the word “future,” and leave the Bill to be dealt with at a time to be fixed. It may not be convenient to go into the matter immediately on receipt of the message. I move -
That the word “future,” line 5, be omitted.
– The amendment may remove a difficulty. It may otherwise be said that “a future time” may mean that we cannot deal with the Bill on the same day that the message is received.
– I urge Senator Pearce not to proceed with this amendment. It will be found, generally speaking, that it is wise to allow an interval to elapse before we deal with a message. I have often had to take objection to proceeding with Bills in Committee immediately after the second reading. It is always advisable to let an interval elapse. We are not in such a violent hurry that we cannot spare time for honorable senators who may be away to learn- that a message has been received by the Senate.
Senate Drake. - Suppose only a verbal amendment has been made ?
– Then let the standing orders be suspended.
Amendment agreed to.
Standing Order, as amended, agreed to.
Standing Order 292 verbally amended and agreed to.
Standing Order 342 -
On receipt of a message from the House of Representatives…… the Senate will proceed to appoint the agreed-upon number of Senators to serve on such committee.
– There is a new expression in this standing order. I think it ought to come out. It speaks of the “agreed-upon” number of senators. Why not say “such number”? I move -
That the words “ the agreed upon “ be omitted with a view to insert in lieu thereof the word “such.”
Amendment agreed to.
Standing Order, as amended, agreed to.
Standing Order 421 agreed to.
In Committee (Consideration resumed from 1 1th August, vide page 3336) :
Clauses 104 to 110 agreed to.
Offences against this Act punishable by imprisonment shall be indictable offences, and any imprisonment imposed for any of such offences may be imposed either with or without hard labour.
– During the second reading debate I drew the attention of the Minister in charge to the fact that this clause provides for no alternative. I then suggested that section 258 of the Customs Act might be adopted, in order to allow of an alternative.
– I have consulted the Crown law officers, and I am informed that clause 5, in conjunction with the Offences Against the Commonwealth Act, provides all that is necessary. If we were to include section 258 of the Customs Act, we should simply be enacting what is already law.
– Can a fine be inflicted?
– I take it that what Senator Pearce desires is to make provision for a case in which the money penalty is not paid. Sections 2 and 3 of the Offences
Against the Commonwealth Act provide that all the powers of the local courts may be exercised ; and those two sections are brought into operation by the fifth clause of this Bill.
Clause agreed to.
Clauses 112 to 116 agreed to.
Clause 117 (International arrangements for the protection of inventions).
– This clause provides that any person who has applied for protection for an invention in the United Kingdom or the Isle of Man, or in any foreign State under the present international arrangement, shall be entitled under this Bill to a patent in Australia in priority to Other applicants, and that the application here must be made within seven months of the application made abroad. Anamendment is necessary in consequence of a variation in the international arrangement, information in regard to which reached the Government only a few days ago. It has been agreed that the period shall be twelve months instead of seven months ; and it is therefore necessary for me to move -
That the word “ seven “ be omitted with a view to insert in lieu thereof the word “twelve.”
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 118 to 121 agreed to.
No person shall represent that any article sold by him is a patented article when no patent has been granted for same. Penalty : Five pounds.
– I wish to move what is practically a new clause ; and in order to obtain the opinion of the Committee, I move -
That the word “No,”line 1, be omitted.
The words I desire to substitute are -
Every person who in any manner marks upon or affixes to any unpatented article the word “patented,” orany word importing thesame, for the purpose of deceiving the public, shall be liable for such offence to a penalty of not less than Twenty pounds, with costs.
– What is the real difference between the clauses, excepting the increase of penalty ? The clause as it stands is enough to cover every case.
– The clause is too vague, and might apply to a person who is only a retailer.
– The words “every person” would have no more effect, because the offence must be sheeted home to some one.
– The person we want to reach is the person who marks or affixes the word “ patented.”
– Ithinkthattheclause, as it stands, is even more comprehensive than that suggested by Senator Pearce. A short pithy clause, such as that which appears in the Bill, will include almost any one who in any way falsely represents an article as being patented ; and, whatever form of words may be used, it will be necessary to sheet home the offence to some one. The more ample a provision is made the more chance there is of leaving loop-holes. If we set out every variation which shall constitute an offence, it will be held that an act which does not come strictly within one of the definitions is not an offence. I am inclined to think that the penalty is not sufficient, and on that I shall be glad to have the views of the Committee.
– Instead of fixing the amount of the penalty at £5, would it not be better to say that it shall not exceed so much?
– The penalties are set forth in the briefest form in the Bill ; but clause 5 provides that the amounts at the foot of each clause indicates that the offences shall be punishable by a fine of which that amount is the maximum.
– I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator Pearce) proposed -
That the word “ five,” line 3, be omitted with a view to insert in lieu thereof, the word’ “twenty.”
– I have no objection to the amendment.
– I should have been prepared to move that even a higher penalty than that proposed by SenatorPearce be inflicted. I think that £20 is a small enough fine for such an offence, but I shall support the amendment.
– We ought to be very careful with this clause, under which it is quite possible for a man to be very hardly treated. A person may innocently buy goods marked as patented, and innocently sell them, or he may sell goods which are so marked, but in regard to which the patent has expired. Under this clause such a person would be liable to a fine, and there are many degrees of guilt possible under this clause. An offence might be committed which would be very insufficiently punished by a fine of £5, though I think a fine of £20 is rather too high. I suggest that the penalty be made £10, and I shall move accordingly.
– Itseems to me that under this clause it will be most difficult, no matter how it is worded, to get a conviction. In order to make the clause more precise, I should like to see the words which have been suggested by Senator Pearce made the first part of the clause, the latter being attached thereto. The clause as drawn is more comprehensive than that suggested by Senator Pearce. but with the addition of those words it would be morecomprehensive still. I think that would meet the case.
– I think it makes it extremely doubtful.
– I should like Senator Pearce to move his amendment at the beginning of the clause. This is a most difficult clause under which to secure a conviction.
– I do not think that what Senator Dobson proposes would make it any easier to secure a conviction. I am inclined to think that to put these words in front of the clause would only weaken it. Senator Dobson admits that the clause as we have it is comprehensive, and what, therefore, is the use of affixing these words, which will simply qualify the clause as it stands, and will to that extent weaken it?
– I am thinking of what Senator Pulsford suggested.
– It will be the business of the Court to find out who is the guilty man.
– I think that considerable discretion should be allowed. There are many articles of food which are said to be patented articles. There is,for instance, “patent groats,” which I believe is a sort of oatmeal. If a man sells a packet of oatmeal with the word “ patent “ on it, there is no reason why he should be subjected to a heavy fine. If a man injures the property of another by describing an article as a patented article to the detriment of the man who has patented a similar article, he should be punished. But when we are dealing with articles of food, it is absurd to suggest that a man should be fined for using the word “patented “ without authority.
SenatorWalker. - That is provided for in clause 124.
– I am prepared to support Senator Pearce’s amendment that the penalty should be £20. I believe that under this clause there will be considerable difficulty in imposing any penalty. That will be found where the patentee is a foreigner in Europe or America. The difficulty will also occur where the article has been patented and the patent has lapsed. In such a case it will be necessary to prove that the article was manufactured prior to the lapsing of the patent before a conviction could be secured. I think it is necessary to provide for a substantial penalty. I have heard of cases where people deliberately mark small pieces of machinery “patent,” or “ patented,” and if these become broken and the purchaser goes to a blacksmith to have them mended, the blacksmith may refuse to repair the machine on the ground that he would be infringing a patent. It may be subsequently discovered that the article is not patented at all, and it has been marked “ patented “ to secure an exclusive sale. Honorable senators must remember that the penalty stated throughout the Bill is the maximum. Where there is a flagrant case, it is well that the magistrates should be given discretion to impose a severe penalty. In this case, I think the maximum penalty should be £20, and it would then be left to the discretion of the magistrate to impose a fine of only 10s.
Senator PULSFORD (New South Wales). - I still think that £10 as a maximum would be a sufficient penalty to provide. Magistrates are sometimes apt to judge of the heinousness of a crime by the amount of the penalty attached to it ; and, in cases in which very little moral wrong had been done, fines might be imposed which honorable senators would not approve of. A correspondent writes to me that under this clause villainous wrong may be done to a dealer in various goods, and he may be led into a great deal of trouble and financial loss by its operation.
– The question is whether there are not two kinds of patents, a mechanical patent and a chemical patent. The production of a new dye, for instance, is a very different thing from the production of a mechanical patent, and its infringement may involve the loss of thousands of pounds. My correspondent, who is an ex-examiner of chemical patents in New South Wales, thinks that there should be a separation of mechanical, chemical, and other patents.
– With regard to the penalty?
– No ; he does not allude to the penalty, but to the fact that the infraction of a patent may be of much more consequence in one case than in another.
– This clause must be read in conjunction with clause 124. We provide that no person shall represent that any article sold by him is a patented article when no patent has been granted for the same. I presume that the word “ patent “ used here means an Australian patent.
– That ought to be defined.
– The definition of “patent” in clause 4 is “letters patent for an invention,” and I take it that that means “Australian letters patent for an invention.”’ We have cases arising every day, in which articles have been patented in Germany. America, England, or elsewhere, and may not have been patented in Australia. They may be marked “ patented in New York “’ on such a date, or “ patented “ elsewhere, and a person may sell that article here, and though there were no Australian patent issued in respect to it, he would be deemed to have represented and sold the article as a patented article, because we provide in clause 1 24 that -
In case any article is sold with the word “patent” or “patented” or other words expressing or implying that a patent has been obtained for it applied to it, and no other representation is proved, it shall be a defence to the prosecution if the defendant proves that he bought the article in the same condition as when he sold it. and that he sold it in good faith without knowledgethat the representation applied to it was untrue.
– That would let him out.
– I do not think that “ patent” means an Australian patent.
– Undoubtedly it does ; we are legislating only in respect of Australian patents.
– Wedonot acknowledge any others.
– This Bill takes no cognizance of any other patents. Letters patent referred to in this Bill are letters patent issued under this Bill. If a man sells an article not patented here, but patented in some other part of the world, withthe word “patent” or “patented” marked on it, he will bring himself within the operation of clause 122.
– Clause 124 will give him a good defence.
– It is no answer to say that clause 124 will give him a good defence, because he will still be subject to the operation of clause 122, and will be liable to prosecution, though, after he is prosecuted, he may resort to another provision of the Bill to extricate him from his difficulty. I do not object to the obvious policy of clause 122, but I think it should be more specifically set forth in that clause that it applies to Australian patents.
– We can deal with that in clause 4, which has been postponed, by adding to the definition of “ patent “ the words “patented in Australia.”
– I think we should deal with it here. Very few people will turn back from clause 122 to clause 4 of the Bill, to discover the exact interpretation of the word “patent.”
– What is the use of an interpretation clause, if it is not to interpret the terms used throughout the Bill?
– I suggest that the clause should read in this way -
No person shall represent that any article sold by him is an article patented in Australia, when no such patent has been granted for the same.
If that alteration were made there could be no doubt in the mind of any person, and no technical objection could be raised if any prosecutions were instituted. Otherwise a man who sold an article patented elsewhere, and really made a misrepresentation to persons here by implication that it was patented in Australia, might be able to escape the consequences of his action through the ambiguity of the provision.
– I think that no one will see more clearly than Senator Keating how dangerous it would be in the body of the Bill to limit or qualify a term which is defined in the interpretation clause. The words “patented” and “ patent “ are used throughout the Bill. . If one clause were made to refer to an article which had been patented in Australia, it might be argued by implication that a clause in which that variation had not been made meant an article which had been patented outside Australia. The proper course is to define in the interpretation clause exactly what is meant by a “ patent,” and then to use the word all through the Bill without any limitation or qualification. If that course is taken it will give a meaning to the word wherever it is used. If in one clause we limit or qualify the meaning of the word “ patent “we ought, in order to guard against any ambiguity, to alter the meaning of the word “patent” wherever it occurs in the Bill.
– Does the Minister say that the term “ patented article “ could only apply to an article patented in Australia?
– I take it to be so, and that will be made clear in the interpretion clause.
– If that is so we do not need to use the words “ in Australia “ here.
Senator KEATING (Tasmania). - I agree with Senator Drake that, in order to avoid diversity of interpretation, it is desirable not to limit, in a particular clause, a word which is of frequent occurrence in the measure. If in the interpretation clause the word “patent” were defined to mean letters patent issued under the authority of the Act, or within the Commonwealth, and the. words “ patented article “ were clearly defined to mean an article in respect to which letters patent had been issued in the Commonwealth, under the provisions of this Act there could be no ambiguity in regard to clause 122. Senator Drake can see, I am sure, that a man who palmed off an article on to an individual, or the public, on the representation that it had been patented in Australia when it had been patented in other countries, might endeavour through his counsel to claim the benefit of some ambiguity in this clause because a patent was not defined to be a patent granted in Australia, and even if it were, because a patented article was not expressly defined to be an article patented in Australia. . If the two terms are to be defined in the interpretation clause as referring to Australia only, there is no necessity to alter this clause.
Senator CHARLESTON (South Australia). - We ought to know whether Senator Drake is prepared to alter the definition clause in the direction which has been suggested by Senator Keating, because I think there is a great deal to be said in favour of making that alteration.
– I intend to ask the Committee to insert a definition of the words “ patented article.”
Question - That the word “ five “ proposed to be omitted stand part of the clause - resolved in the negative.
Question - That the word “twenty” proposed to be inserted be so inserted - put. The Committee divided.
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 123 and 124, and Schedule 1, agreed to.
Schedule 2 -
– I wish the fees for the preparation of a patent for sealing and for the renewal of a patent to be fixed at £3 in each case.
I move -
That the figure “ 5,” line 5, be omitted, with a view to insert in lieu thereof the figure “ 3.”
It has been asserted from time to time that the Government have no desire to make a profit out of inventors, but merely to stimulate invention. It is only right that we should not attempt to raise more than the mere working expenses of the Department. It would liberalize this schedule very much if the fees were reduced in these two cases. I admit that the scale of fees generally is less than that which has prevailed in most of the States, but it should be remembered that in the United States the finances have been largely augmented by the imposition of low fees. I do not anticipate any loss of revenue from a reduction of these fees.
– I am also in favour of charging low fees for patents. It is admitted that the scale of fees in this schedule is very much less than that which has been charged hitherto in the States. We have reduced the fees very much - nearly to the lowest figure which has been charged in any State - and the patent is to apply to the whole Commonwealth. We propose to charge a fee of £5 for a patent which will last for seven years, and will confer on the holder the advantage of getting a royalty on the manufacture and sale of his article throughout the Commonwealth. It is rather unreasonable for the honorable senator to ask that it should be reduced to £3. There was a time when the desire was to raise a revenue for the Crown from this source. The Government are not animated by any desire of that kind. The cost of administering the law is considerable, and to some extent it should be defrayed by the inventors. Five pounds is a very reasonable fee to charge for the preparation of a patent for sealing. In Canada the fee is 20 dols., in addition to which the renewal fee, before the end of the sixth year, is 20 dols, and the renewal fee before the end of the twelfth year, is another 20 dols., making 60 dols. in all. In Newfoundland the fee is 25 dols. ; in New South Wales, £5 ; in Queensland, £18 ; in South Australia, £8 ; in Victoria, £9 ; in Western Australia, £18 ; in New Zealand, £18 ; in Tasmania, £38 ; in Cape Calony, £35 ; and in Natal, £19 18s. I think that the amount in Great Britain is about £50 altogether. These are enormously high fees, as compared with what we are proposing to charge. Having regard to the fees charged in other countries and in other States of the Commonwealth, the fee of £5, which we propose to charge for the period of seven years, is not excessive.
– It should be remembered that an amendment has been carried at the instance of Senator Pearce, by which the examiner is required to report as to whether an invention is novel. That means a considerable increase inthe work to be done. We must avoid establishing a Patents-office which will cost a large sura of money to the Commonwealth. I have always been in favour of very low fees, but the amount proposed to be charged in this schedule is as low as it can be consistent with safety to the revenue.
– This fee has to be paid by the patentee to the Treasury, but we have no means of ascertaining what he has to pay to his patent attorney. The higher we make the fee the more justification the patent attorney will have for making high charges. The policy of this Bill is the centralization of patents work. Most of the work will have to be done in Melbourne, and patentees in other parts of Australia will be practically at the mercy of the patent attorneys. Therefore, £12 will not be the total amount which the patentee will have to pay in fees. Probably he will have to pay more than twice that amount before he is finished. I shall support the amendment.
Question - That the figure “ 5 “ proposed to be omitted, stand part of the scheduleput. The Committee divided.
Majority …… 4
Question so resolved in the affirmative.
Senator PEARCE (Western Australia). - I move -
That the following words be added : -“ The time for the payment of the fees may be extended over a period of six months.”
This proposal would give the inventor, who may not have much money of his own, time in which to make arrangements for payment.
Amendment, by leave, withdrawn.
Schedule agreed to.
Postponed clause 4 -
In this Act, except where otherwise clearly intended - “Patent” means letters-patent for an invention. “ State” means a State of the Commonwealth, and includes a colony which has become a State,
Amendment(by Senator Drake) agreed to.
That, after the words “letters-patent,” line 3, the words “issued under the authority of this Act” be inserted.
– Would the word “ State” include British New Guinea ?
– A Territory is not a State of the Commonwealth under the Constitution.
– Surely the Territory of South Australia should come within the operation of the Bill? We should say- “State or Territory.” The Bill should operate in any Territory over which we have jurisdiction.
Senator PEARCE (Western Australia). Although we are inserting in this Bill an interpretation of the word “State,” we already have an interpretationof the word in the Acts Interpretation Act, which provides that - “State” shall mean a State of the Commonwealth.
– The object of inserting this definition is that we are now passing a Bill which will apply, not only to patents issued in the future, but also to those which have been issued in the States. . Therefore we want, for the purpose of this Act, to somewhat widen the definition given in the Acts Interpretation Act. I move -
That, after the word” invention,” lines 3 and 4, the following words be inserted: - “‘Patented article means an article in respect of which a patent has been granted.”
Amendment agreed to.
– Is the honorable senator prepared to define the word “ Territory “ in this clause.
– It is not intended that this Bill shall apply to any Territory of the Common wealth. The only Territory we have is Papua, and it is not intended to extend the operation of the Bill to that Possession.
– I should like to call attention to the definition of “ Supreme Court,” which is “ the Supreme Court of the State in which the Patent-office is situated, or a Judge thereof.” We have the Supreme Court mentioned in reference to four matters of some importance.Under clause 73, the Supreme Court, where the Patents-office is situated, has the right of hearing appeals from the Commissioner ; under clause 82, the Supreme Court of a State has power to revoke a patent ; under clause 85, the question of granting compulsory licenses may be referred by the Commissioner to the Supreme Courts and under clause 86, the Supreme Court may deal with infringements of patents. Why should the Supreme Court of a State be mentioned in clause 82, which deals with the revocation of a patent ? It appears to me that the revocation of a patent is a most important matter, both to the patentee and to the public. In clause 9, I had an amendment made, providing that the Governor may appoint one or more Deputy Commissioners, in order, as far as practicable, to do away with too much centralization. If we have Deputy Commissioners, and if in the future the Commissioner finds he can safely delegate his authority to those deputies, why should not the Supreme Court of a State, or all the States, have power to deal with all matters under the Bill ? Why should we give the Supreme Court of a State the right to hear an application for the revocation of a patent, while the Supreme Court in the State where the Patents-otfice is situated is the only court which can deal with the infringement of apatent? The provisions appear a little inconsistent, and, if the Minister will not consent to an absolute amendment, will he, in order to carry out the object of the amendment in clause 9, insert some clause providing that jurisdiction may be conferred by the Governor-General in Council on the Supreme Court of a State ?
– I endeavoured to explain this matter the other night, but, perhaps, did not make myself quite clear. Clause 82 gives a power that has always been exercised by the Supreme Court of a State in its equity jurisdiction. We are doing away here with the old proceeding by way of scire facias, which was originally the method of revoking letters patent; but the power resides in the Supreme Court of a State to hear and adjudicate on petitions in regard to letters patent.
– Why not give the same power in regard to infringements?
– For the reason that, where the matter is not one relating to the jurisdiction which the Supreme Courts already have, we desire the case should be heard at the place where the Patents-office is - that all proceedings in regard to letters patent should be focussed there. The reason I gave the other day - and it is a good one - is that if any legal proceedings are taken in connexion with the issue of a patent, it is right that they should be taken at one centre, which probably will be most convenient for the parties concerned.
– Why not allow the revocation of patents to be dealt with in the same way?
– Simply because the jurisdiction at the present time is exercised by the Supreme Courts of the States, and we do not desire, even if we could, to take it away. I very much doubt whether, by means of this legislation, we could take away the power that the Supreme Courts of the States have in their equity jurisdiction at the present time.
Clause, as amended, agreed to.
Postponed clause 26 agreed to.
Postponed clause 38 -
IE the examiner reports adversely to the application or specification on any matter referred to in sections thirty-five and thirty-six, the Commissioner may -
require compliance by the applicant within a specified time with such directions for the amendment of the application or the specification as the Commissioner sees fit to give ; or
direct that the application instead of dating from the time when it was lodged shall date from such later specified date not being later than the date of compliance with the directions for amendment.
Senator PEARCE (Western Australia). - This clause was postponed with the view of giving the Government an opportunity of considering whether it would not be wise to insert a third sub-clause, giving the Commissioner power to refuse the application.
An amendment of the kind is, in my opinion, necessary, in consequence of the amendment made in clause 35.
– I do not think that it would be advisable to make the amendment suggested by Senator Pearce. I felt that it was a mistake to make the amendment in clause 35, requiring the Commissioner to decide on the question of novelty, and the probability is that that amendment will not have much effect. I understand, that in the Victorian case, which was quoted so frequently, it appeared that a similar provision was, as a matter of fact, a dead letter. The examiner is bound to examine as to novelty, but the decision has no weight whatever, and may be misleading. The law really becomes a dead-letter, though the specifications are passed, and the parties who may be interested are allowed to challenge the decision on the question of novelty.
– The Minister is presuming that the examiner will not carry out his duties. If he reports that an invention is not novel, surely the Commissioner has power to refuse an application.
– Not at that stage, but he has further on, and it would be as well to allow the Commissioner to exercise the power under clause 43.
Senator PEARCE (Western Australia). - I move -
That the following words be added - “ (c) refuse the application.”
I can very well see that the Government, having been defeated on clause 35, do not want to amend clause 38 in order to carry out the will of the Committee. I suppose that the Government will point out that clause 35 is inoperative without an amendment in clause 38, and ask the Committee to reconsider its determination in regard to clause 35. What do clauses 42 and 43 deal with ? Clause 42 provides that if the Commissioner is satisfied that no objection exists, he may grant the patent; but, according to clause 43, if he is not satisfied, he shall, unless the objection be removed by amendingthespecification, determine whether a reference ought to be made, or refuse the application. But those two clauses have reference to clause 37, which deals with inventions already patented in the Commonwealth or a State. There is no clause in the Bill giving the Commissioner power to reject an application, if the examiner reports to him that the invention is not novel. If, as the Minister says, the provision will be a dead-letter, the objection he has raised to it on innumerable occasions will not apply. If the examiner never reports that an invention is not novel, the Commissioner will never have to refuse an application on that ground.
Senator CHARLESTON (South Australia). - If an invention is not novel it will not comply with the conditions upon which patents are granted, and it must be thrown out.
– This is only the examiner’s Opinion, and it goes for what it is Worth.
– One of the conditions on which a patent is granted is that the invention for which it is applied is novel, and if the examiner reports that the invention is not novel, I think the Commissioner has only one duty to perform. He must refuse the application.
– This is the question we have discussed before. Senator Pearce desires to give power to the Commissioner to refuse an application on the ground that an invention is not novel, on the authority of the examiner. I take the same view of this question now as I took before. I do not think the Commissioner should have the power at that stage to refuse an application on the ground that the invention is not novel. I think he should allow it to go forward, and let the question of novelty be tried afterwards in the proper way.
Question - That the words proposed to be added be so added- put. The Committee divided.
Majority … … 1
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 91 (Assignment of invention to Commonwealth).
Clause agreed to.
Postponed clauses 92 to 96 agreed to.
That Clause 4 and the first schedule be reconsidered.
Clause 4 -
In this Act, except where otherwise clearly intended - “invention” means any manner of new manufacture, the subject of letters patent, andgrant of privilege within section6 of the Statute of Monopolies (that is, the Act of the twenty -first year of the year of King James I., chapter II., entitled, “An Act concerning monopolies and dispensations, and the forfeiture thereof “), and includes an alleged invention ; “ patent,” means letters patent for an invention issued under the authority of this Act.
– Senator McGregor has given notice of an amendment upon this clause, which he has asked me to move, in his unavoidable absence from the chamber. I move -
That, after the word “means,” line 3, the following words be inserted: - “any discovery of or any alteration of any implement, machine, contrivance, substance, or method.”
– I know that this amendment is proposed by Senator McGregor, and moved on his behalf by Senator Pearce, with the very best intention. The intention is to simplify the law, but the effect of the amendment, if carried, would be that we should at once lose all the advantages we have in the decisions which have been given on the subject, and we should have to start on an untried sea. This can only result in a considerable increase of litigation, for the reason that no one will be able to advise an inventor, or a man opposing the granting of a patent for an invention, as to what his rights may be, because weshall have swept awayall precedents. It is most desirable that those interested in patents should have a means of knowing the ground on which they stand, but if this amendment were carried even the best legal authorities could give no advice or assist ance as to what would probably be the decision of the Court in regard to any particular invention. I hope the honorable senator will not press the amendment.
– We have amended the definition of the word “patent” by inserting after the word “ invention” the words “ issued under the authority of this Act.” I find that the term “granted” is used throughout the Bill, and I therefore move -
That the words” issued under the authority of this Act,” line 13, be omitted, with a view to insert in lieu thereof the words “granted in the Commonwealth. “
Amendment agreed to.
Clause, as amended, agreed to.
First schedule consequentially amended and agreed to.
Bill reported with amendments.
. I move -
That the report from the Printing Committee (Sitting in conference with the Printing Committee of the House of Representatives) Brought up on 3rd September, 1902, be considered this day three weeks.
The Chairman of the Printing Committee afewdays ago asked me to bring the report with which we have now to deal before the Senate, in order that honorable senators may express their approval or disapproval of some recommendations contained in it. The Printing Committee desire to have the guidance of honorable senators upon these matters. The report is dated nearly a year ago, on 27th August, 1902. It was brought up by the Printing Committee last year, and laid upon the table of the Senate, but it was not dealt with. It was drawn up at a time when we were just beginning to feel our way in the matter of the business of printing connected with Parliamentary Departments. It contains, no doubt, all the information that was obtainable at that time; but in connexion with almost every matter of inquiry dealt with in the report there have been alterations made in the methods of carrying out the business of the Departments. There have been great savings effected owing to the adoption, of economical methods, which have altogether revolutionized the system in force when the committee made their inquiries. Therefore, as a statement of the facts upon which the committee based their recommendations, the report in its present condition is of no value whatever. It contains certain recommendations upon which the committee desire an expression of the opinion of the Senate. The recommendations are to be found at the end of the report, as follow : -
That matter can, of course, be decided apart from any known facts as to the use of the questions and answers.
That practice has been discontinued.
That recommendation has been followed.
That recommendation is, I think, pretty well followed.
That recommendation has been followed.
The reduction which has been made is considerably more than twice that number. In all these respects the recommendations of the Printing Committee have either been carried out or are in course of being carried out. The other recommendations reallY bring the matters referred to up to only the 27 th August, 1902. If the report were adopted in its present state it would certainly give the public a very misleading idea of the cost of our printing bill and our methods. I would suggest to Senator Smith, who is the Chairman, that it would be very desirable, before taking any action on the report, to have a meeting of the Printing Committee, and to bring the facts up to date in another report. It could very easily be done, because all the facts are within the knowledge of the Speaker and President. As the heads of their respective Departments, they have had control of the distribution of the greater part of these papers ; they are in a position to give information as to . the cost of printing the papers, the method of distributing them, and other matters. I would suggest- to my honorable friend that the Printing Committee should take the evidence of the Speaker find the President on these questions, get such other information as may be necessary, and bring up a supplementary report, which can be considered with the other one. If that course is taken the Senate will be in a position to consider these recommendations with a full knowledge of all the facts, and to to approve of a report which states the real position. To adopt the report of last session as representing the present condition of affairs would be very unfair to the Parliamentary Departments, would be misleading to the public, and would not represent the views of the present Printing Committee. If the motion is agreed to, the Chairman of the Printing Committee will be able to take such action as he deems necessary, and I think that by the time fixed he should be in a position to present a supplementary report.
– May I make a statement, as I know something about this matter 1
Honorable Senators. - Hear, hear.
– All the statements which have been made by the VicePresident of the Executive Council are correct, excepting one, for which perhaps I am responsible ; and that is that the number of notices of motion has been reduced by 600. I am not quite sure whether that is correct or not, but, generally speaking, the report is out of date. The circumstances have entirely altered since it was presented. For instance, the circulation of Hansard has been enormously decreased, not by reason of any action taken by the Speaker or myself, but because an enormous number of persons, who received the official reports lost session, have not applied for them this session. The heads of some Commonwealth and States Departments, who applied for five or six copies last session, have written to say that they do not require more than one copy ; so that the expense of distributing the publication has. been very largely decreased. Other decreases have been made in the expenditure. I think it will be wise to postpone the consideration of the report until the information has been brought up to date; because a great many of the recommendations have been complied with, and other economies have been made, which are not mentioned by the Printing Committee. For instance, the Government have adopted the policy - I think a wise one - that each Department should show its expenditure. Under that policy the Departments of the Senate and of the House of Representatives have to pay postage on the circulation of these documents. Nominally that increases the expenditure, but it is only a bookkeeping entry. On the other hand, the Speaker and myself have said that, in carrying out that policy, it is only fair that the Commonwealth Departments which require papers from either House, or from both Houses, should pay for them. Of course, that is only a book-keeping entry ; but it shows the cost of parliamentary printing more correctly than was formerly done. All the circumstances have altered very considerably since the report was brought up ; andI think it is advisable for the Printing Committee to obtain further information before it is considered by the Senate.
– I have no objection to fall in with the suggestion of Senator O’Connor. Thu report was the result of a considerable expenditure of time last session by the Printing Committees of the two Houses. It was printed at considerable cost, and a motion for its consideration stood on the notice-paper of the Senate during a great portion of lost session. It seemed to me that after we had been deputed to do this work at would have been discourteous on our part not to present a report. It was our intention to ask the Senate to consider the report last session, but, owing to the great stress of business, it was impossible for the Government to allow any time for its consideration. At the last meeting of the Printing Committee it was decided to ask Senator O’Connor to give the Senate an opportunity to deal with the report this session. Practically all the recommendations which it contains have been adopted, except thefourth, which reads - :
That no despatch, report, or paper presented either to the Senate or the House be printed except (a) on a motion proposed by some responsible Minister for the Crown for special reasons duly stated ; or (b) on the recommendation of the Printing Committee of either Chamber duly confirmed.
Our object in wishing the report to be considered this session was to draw attention to that recommendation, which, we think, the Senate ought to adopt. In the past many documents have been tabled and ordered to be printed. The person who has presented a paper has moved, almost as a matter of form, that it should be printed, although it might be very voluminous, and the result has been that some papers, which I do not believe any members have read, have been printed at very great expense. With the view of insuring economy the Committee think that all papers which a responsible Minister considers ought not to be printed should bc merely laid on the table ; that at our weekly meeting we should look through the documents, perhaps obtain expert advice as to the cost of printing them, and decide whether dr not we should recommend that they should be printed. That rule is in force in the other House. I believe that is the only recommendation of last session which has not yet been adopted. The President has suggested that there are other matters which might be considered before the report of the Printing Committee is dealt with. I am anxious- to make its report as useful as possible, and I gladly acquiesce in the suggestion of Senator O’Connor. I believe that a postponement for three weeks will give the Printing Committee ample time to bring its report up to date by means of a supplementary report.
Question resolved in the affirmative.
Senate adjourned at 9.28 p.m.
Cite as: Australia, Senate, Debates, 13 August 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030813_senate_1_15/>.