1st Parliament · 2nd Session
The President took the- chair at 10.30 a.m., and read prayers.
Senator DRAKE presented a petition from two electors of Queensland praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.
Sena tor MACFARLANE. - -I desire to ask the Minister for Defence, without notice, if. he has seen in this morning’s Age a statement purporting to give the particulars of tenders to be called for the English mail service ; if so, are they, in the main, correct ; and when will a copy of the tenders .heissued to the public 1
– I did see the announcement in the Age. I know that thepreparation of tenders has been under consideration during the last two or three days, and I believe it is the intention to invitetenders shortly.
asked the Minister for Defence, upon notice -
– The answers to thehonorable senator’s questions are as follow : -
asked the Minister for Defence, upon notice -
South W ales, and to collect direct from,and to deliver direct to, the public in the cities named, messages for and from New Zealand?
– The answers to the honorable senator’s questions are as follow : -
asked the Minister for Defence,upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Minister for Defence,upon notice -
– The answers to the senator’s questions are as follow : -
The names of cable users are confidential, and cannot therefore be disclosed.
asked the Minister for
Defence, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Bill received from the House of Representatives, and (on motion by SenatorDrake) read a first time.
Debate resumed (from 3rd September, vide page 4579) on motion by Senator Higgs-
That the President’s ruling in the matter of Senator H. J. Saunders be disagreed with.
– Before Senator Higgs rises to speak to his motion of dissent, I think I ought to indicate to the Senate what in my opinion is the best course of procedure to adopt. As honorable senators are aware, the President has as much right -as any other senator to speak on any question ; but I think it would be more dignified on his part, and perhaps better, if he did not participate in a debate of this nature. At the same time, seeing that rulings are frequently given in a hurry - sometimes given, as they must be, without due consideration - I think it would be only fair to the President, before a debate of this nature is initiated, that he should be permitted to state to the Senate if he desires to in any way alter or modify his ruling, or to clear up any matter which has been left vague. On this occasion I do not intend to in any way alter or modify the ruling which I £*ave, but perhaps I may be permitted to initiate the practice which I have indicated by stating to the Senate in a few words exactly what 1 did rule.
Honorable Senators. - Hear, hear !
– The question for consideration is whether Senator Saunders ought or ought not to have taken the oath of allegiance twice over.- It is useless to consider other questions, such as what ought to have been done if the facts had been different - what ought to be done after a periodic election, etc. The only point for consideration is whether a senator who has taken the oath of allegiance during a session of the Senate, that is, during a sitting ; who has continuously been a senator since he took such oath ; who has continuously sat as a senator ; who now holds the seat, and who took the oath of allegiance before he sat, is required by the Constitution to take that oath over again, because, although he never ceased to be a senator, he originally held the office, and took the seat by virtue of - (1) a nomination by the Governor of a State ; (2) by virtue of the dual qualification of nomination by the Governor and choice by the State Legislature; (3) by virtue of being chosen “by the State Parliament before the time for which he was nominated expired. This question almost answers itself. The senator, during a sitting of the Senate, took his seat, and still holds that seat. He has never taken two seats. He took the oath of allegiance before he took his seat, and there has been no break in the continuity of his holding that seat. The alteration of the qualification by which he held the seat seems to me to be immaterial ; of course if it is carried to its logical conclusion the absurd result is arrived at that
Senator Saunders ought to take three oaths. The provisions of section 42 of the Constitution, which require “ that no senator shall take his seat until after he has taken the oath of allegiance,” seem to me to have therefore been complied with.
– I did not take exception, sir, to your method of conducting this business, because I have very great respect for the Chair. At the same time I do not find any provision in the Standing Orders which gives you the right to make a statement at this stage.
– There is none.
– I do not regard it as the best method of procedure.
– Surely the responsibility is on the President to lead the Senate.
– The standing order states that an objection to the President’s ruling must be taken at once and in writing, an3 the debate forthwith adjourned unless, of course, it should require immediate determination. How did the President know officially what were the reasons for my disagreement with his ruling t
– The President has told us what his ruling was - that is all.
– The President has restated his ruling and also supplied us with’ a certain number of arguments in its support.
– Why not 1
– I think that it is somewhat irregular, and that his speech might very well have been made at a later stage.
– Surely it is the duty of the President to guide the Senate ?
– I take up the same attitude, sir, with regard to your ruling as you took up in respect to the ruling of the Chairman of Committees. You said that itwould be a matter of great regret to you if you should find it necessary to disagree with the Chairman. It is also a matter of very great regret to me to have to take the course which I am now pursuing. I hope that I, as well as others, will take the same stand as the Chairman of Committees did. He dismissed from consideration all personalities, and said, “ I view the question, from a dry legal stand-point.” I think that so far as laymen can do, we ought to view the matter from a dry legal stand-point. To briefly review the circumstances, Senator Saunders was appointed by the GovernorinCouncil of Western Australia as a kind of probationer to fill the position vacated by
Senator Ewing until fourteen days had elapsed from thenextmeetingof the State Parliament. There is a difference of opinion as to whether Senator Saunders’ period of probation ended at the expiration of fourteen days or at the expiration of thirteen days, when the Western Australian Parliament undertook to choose a successor to Senator Ewing. But however that may be, the Parliament of Western Australia, the two Houses sitting and voting together, elected Senator Saunders to take the position vacated by Senator Ewing. According to section 42 of the Constitution, to my mind Senator Saunders should have taken a fresh oath.
– Where is the utility of repeating the oath?
– As to the utility of such a course the honorable senator should go to the founders of the Constitution., I attach a great deal of importance to the taking of the oath. I am surprised to hear SenatorWalker casting a doubt upon the wisdom or efficacy of taking an oath or affirmation.
– The doubt is only as to the repetition of the oath.
– We shall be able to get a clear view of this question if we imagine that some other gentleman than Senator Saunders had been elected to fill Senator Ewing’s place.
– That changes the whole position.
– Not at all. If some gentleman by the name of Robinson had been chosen, he could not have come into the Senate until the President had received from the Governor-General a certificate declaring his election. The President refused to take official cognizance of a telegram announcing Senator Saunders’ election. Why ? Because the telegram was not in form. The President was not satisfied that the signature to the telegram was the signature of the person authorized . to convey the information. If there was a doubt in the President’s mind as to the choice of a successor to Senator Ewing, and he had to wait until he received a certificate from the G overnor-General, I submit thatthe Senate was not, and could not at that time have been, officially made aware that Senator Saunders was Senator Ewing’s successor. Honorable senators appear to me to be largely influenced in this discussion by the fact that ‘ it may appear to be somewhatungentlemanly or unfriendly to ask Senator Saunders to take a fresh oath. I acknowledge that when the point of order suggested itself, I thought, “Well, Senator Saunders is gentleman who is brimming over with good nature, and I do not like taking this point of order and putting the poor chap to any trouble.” But then, as a friend pointed out to me, there is no “ poor chap “ in the Constitution ; and we cannot look at the matter from the stand-point of good fellowship and our respect and esteem for Senator Saunders. We have to carry out the terms of the Constitution and the order of procedure there prescribed. Some ‘ honorable senators, as was pointed out last night, lose sight of the fact that the House of Commons pays a great deal of attention to matters of this kind. We must also remember that, according to our Standing Orders, we are now laying down a practice for ourselves. We have struck out the standing order which finds a place in many Parliamentary Standing Orders, namely, that the rule of the House of Commons should be followed in cases not provided for by our own Standing Orders. We are laying down precedents, and I submit that we ought to lay them down; as nearly as possible in accordance with the requirements of our Constitution.I take the view, with all due deference and respect to the President and his high position, that the ruling given yesterday by the Chairman of Committees was the sound one.
– I desire to say at the outset that I rise to speak to this question with the utmost deference to your opinion and at the same time with the utmost good feeling. It would be ridiculous and paltry to suggest thst any feeling of” soreness could intervene in the carrying out of the Standing Orders ; and it certainly does not; My regard for your ruling is to some extent increased by the fact that you had the advantage of fully considering the point in question, whilst on the other hand the matter was sprung upon me somewhat suddenly in Committee. But I have now had the advantage of thinking the matter over during the night, and I trust I may be pardoned for saying to the Senate that if there was any doubt in my mind before it has nowbeen absolutely cleared away. Therefore, I desire to say that I am more than confirmed in the view which I originally- took. We are desirous of arriving at a correct decision on -the subject, and I am anxious to put the matter calmly and considerately before the Senate. I am going . to ask honorable senators to be good enough to follow me stage by stage, and I shall be grateful to any honorable senator who will subsequently rise up and categorically refute the arguments which I desire to advance. First of all, the question is opened up by the resignation of Senator Ewing. His term of . service under ordinary circumstances would have ceased on the 31st December. But the Constitution contemplates that something shall happen in order that the place of a senator who retires may be filled in the interval. The first thing the Constitution says is that if by any chance the State Houses of Parliament are not sitting, then the Governor-in-Council of the State may appoint a person to fill the place for a certain term. I wish to show the various stages by which the unexpired term of service has to be filled. In the course of argument last night, I incidentally mentioned that, in my opinion,” the election or choice by the State Houses of Parliament terminated the fourteen days. But I find, on looking closer into the matter, that I took up the weaker position, and that, as a matter of fact, it does not terminate the fourteen days. The Constitution is very clear on this point. What it says is this -
The Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session.
So that there is a definite appointment by the Governor of the State for a period which shall end fourteen days after the meeting of the State Parliament- that is to say, in this case, on the 30th day of J July last. Then we have to inquire - What does the Constitution say as to how the vacancy for the balance of the term is to be filled 1 We have arrived now at the stage reached up to the 30th July. The balance of the term between that date and the 31st December can be filled by an election by the State Parliament, both Houses sitting together. The new term which is thereby created may, however, come to an end by reason of a general election of members of the House of Representatives, or at the next election of senators for the State; or, .if there is no such election in the interval, it comes to an end in the ordinary way on the 31st December, 1903. It will be observed that by this process we have the place filled up to the 30th day of July by one constituent, by one set of persons : that is to say, by the appointment of a person by the Governor of the State on the advice of the Executive Council of the State. After that time a new body altogether comes in, and a new term is created. The new constituent is the State Parliament. They elect - what for? They elect for the balance of the term - from the 30th July- until the end of the term of service of the retired senator. So that we have this state of affairs : We have a new election by a new constituent for a -new and different term altogether. I want honorable senators to grasp that fully. Some honorable senators appear to have the idea that there is some continuity without break of the first appointment of the Governor-in-Council. To my mind that is the greatest fallacy that could be suggested. There is absolutely no continuity because there is a fresh election by another body, it is a mere accident that the new tei follows immediately on the first appointment. There might have been an interval of days or weeks between the expiration of the fourteen days and the new election or choice. A person who might or might not be the man who was previously appointed is elected for a different time by different individuals. There is no over-lapping. It is quite true that the State Parliament of Western Australia happened to make this election on the 29th July, a day before the fourteen days expired. It may be suggested that they had no right to do anything of the kind.
– I suggested that.
– There is some force in that view-
– There was no vacancy.
– Because there was no vacancy.
– They may have prevented the selection of some other candidate.
– So far as’ my view is concerned, the choice by the State Parliament, although it was made on the 29th July, would be taken by a court to mean an election of a senator to fill the place for the other term when the vacancy did occur. I admit that if there is no vacancy there cannot be an election. On the 30th July, according to my view, the vacancy really revived. It must have revived, because a new body has to come in and make an election. If the vacancy did not arise it would not be competent for the State Parliament to make an election. It is possible, therefore, that a court might say that although the State Parliament did elect on the 29th July, yet that election is to be taken to mean that it was o/i election to fill a vacancy about to occur, and for the term which was about to commence. That is stretching things very much, but still it is possible that that is so. My point is that the term of appointment by the Governor-in-Council must expire and a vacancy must occur as soon as the appointment ceases - that is to say, as soon as fourteen days have expired from the meeting of the State Parliament, which, in this case, was on the 30th July, 1903. The Constitution provides that the appointment by the Governor-in-Council can only last during that period. A vacancy having again occurred, the Constitution is again appealed to, and we find that it says that a new body is to set to work to choose a new senator for a new term. Let me illustrate this by an example. Suppose, for instance, as really was the case, that a vacancy occurred amongst the Victorian representatives in the Senate, that the State Parliament had not been sitting at the time, and that the Governor-in-Council of the State of Victoria appointed Senator Reid. If the State Parliament had met on the 1st September, and elected a Mr. Jones, and Mr. Jones had come to the Senate to-day, the 4th September, bearing the certificate of his election by the State Parliament, and said - “Mr. President, I desire to enter the Senate ; I desire to be sworn,” the President would have had to say - “Mr. Jones, we know nothing about you ; the only person we know and can recognise as filling the vacancy which was created in the representation of Victoria, for fourteen days from the 1st September, is Senator Reid, who was appointed for that term by the Governor-in-Council of Victoria.”
– That is distinctly contrary to the Act.
– I should like my honorable and learned friend later on to show me that that is so, because the words of the Constitution are clear, if I understand the English language. The Constitution says -
But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint u person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State.
– There are a few more words.
– There are these words - or until the election of a successor, whichever first happens. “Will my honorable and learned friend, as a lawyer, tell me that the words used here, “ the election of a successor,” mean the election by the State Parliament1? The honorable and learned senator dare not contend that they mean anything but the election of a successor by the people.
– I dare con- . tend exactly what the honorable and learned senator challenges me to contend.
– In my opinion, the words, “ the election of a successor,” as used here, necessarily and clearly mean the election of a successor by the people. Honorable senators should bear in mind the distinctions which are drawn by the Constitution. First of /ill, the Governor-in-Council of the State .”appoints” for a period of fourteen days after the meeting of the State Parliament, if it is not in session at the .time the vacancy is notified ; then the State Parliament chooses ; and, thirdly, the people “ elect a successor.”
– The expression “chosen” is used in regard to the general election in the next paragraph of the section which the honorable and learned senator has quoted.
– I am aware of that. The words of the Constitution give a distinct meaning to the term “ election of a successor.” The second last paragraph of section 15 provides -
At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
– Exactly ; those are the words I rely on.
– So that when the Constitution says in the previous paragraph that the senator shall hold office until the expiration of fourteen days after die meeting of the State Parliament, or until the election of a successor, whichever first happens, the words “ the election of a successor “ are to my mind clearly indicated by the Constitution itself to mean the election of a successor by the people, as the Constitution says - “ at tile next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens a “ successor “ shall be chosen. The choice by the State Parliament is a mere temporary filling of the vacancy in the same way as the appointment by the Governor-in-Council of the State is a temporary filling of the vacancy for the term extending to fourteen days after the meeting of the State Parliament. These temporary means of filling the vacancy are provided, and for what reason ? With the object of avoiding the necessity of putting the Commonwealth to the serious inconvenience and expense of holding a general election for the return of one man.
– If the honorable and learned senator will look at the first portion of section In, he will find that a distinction is drawn between the selection of a senator by the State Parliament and the election of a successor.
– The section says -
If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament for the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor, as hereinafter provided.
– What does that mean ?
– That refers to .the mere temporary filling of the place by the State Parliament until the election of a successor takes place at the general election.
– I am asking the honorable and learned senator if the words “ until the election of a successor, as hereinafter provided “ mean the same as “ the election of a successor “ in the last lines of the section.
– I think so. I will say that wherever the reference is to “ the election of a successor,” according to the terms of the Constitution, it means the election of a successor by the people.
– Then the words “ as hereinafter provided “ are surplusage?
– If they are not, .why are they not repeated where the words “ the election of a successor” are used later in the section ?
– They would be surplus age there.
– No. There is a differentiation in the same section.
– I say that it is totally immaterial whether they are used there or not
– Then they are surplusage where they are first used ?
– They may, or may not be, but it is absolutely clear to me that, according to the Constitution, the words “the election of a successor” refer to the election by the people, and I challenge Senator Keating to disprove that proposition.
– Then the honorable and learned senator admits that the words “as hereinafter provided” are surplusage ?
– I make no admission about it at all. I say that it is immaterial whether those words are used or not. It is perfectly clear, according to the terms of the section, that the words “ the election of a successor,” as used in the Constitution, mean the election of a successor by the people. - 1 challenge the honorable and learned senator to dispute that proposition.
– Senator Saunders is his own successor, and as he has taken the oath why should he take it a second time ?
– Senator Saunders took the oath only as representing the GovernorinCouncil of the State for the term during which the Governor-in-Council had power tq, appoint. Then the State Parliament chose Senator Saunders, but it might have chosen anybody else to hold the place, and when the honorable senator comes here, by reason of the new election, for the new term, as the successor of the man temporarily appointed by the GovernorinCouncil, he is a new senator, selected to hold the place vacated by the senator appointed by the Governor-in-Council, whose term of office has expired. In addition to this, and in order to show that the continuity was broken on the 30th July, honorable senators are aware that, according to the terms of the Constitution, it is necessary that the name of any senator chosen in the manner prescribed, shall be certified by the Governor of the State to the Governor-General. What actually took place in this connexion ? The first intimation we had, I believe, was a telegram, but that being informal, the President, of course, disregarded it. Next, we had a letter from the Governor-General, dated 3rd August, and received by the President and laid on the table on the 5th August, stating that the Governor
General had been advised by telegram, mark you - not that he had received a certificate in terms of section 15 - that Senator Saunders had been chosen by the State Parliament. As a matter of fact we have no knowledge, even’ up to this date, that the certificate contemplated by the Constitution ever arrived. It clearly had not arrived on the 3rd August, when the Governor-General wrote. Taking it for granted, for the purposes of the argument, that the certificate contemplated by the section 15 arrived at some day subsequent to the 5th August - as a matter of fact the Senate has a right only to recognise the person appointed in the terms of that certificate, and until that certificate is presented to the GovernorGeneral no one has a right to take his seat here at all. As the Senate actually sat between the election and the receipt of this intimation, clearly a vacancy intervened in the meantime before we learnt anything at all of the election. Honorable senators must, therefore, see that this is no mere confirmation of the previous appointment, but a new election altogether for a new term by a new body with a notification from the Governor-General arriving many days, at least exceeding seven, after the election actually took place.
– There is no proof that it has arrived yet.
– We do not know that it has, but I am taking that for granted. I have gone through the correspondence, and I see no reference to the receipt of the certificate. The only reference is to a notification received by telegram. I need not dwell upon that at greater length now. I point out that the Constitution furnishes a complete analogy in its provisions for the periodical election of honorable senators themselves. As we know, the term of service of honorable senators expires on the 31st December, and the 13th section of the Constitution Act says that until the 31st December, no vacancy actually occurs, although an election ‘ must take place for new senators anterior to the 31st December. Some of us now in the Senate go up for election prior to’ the 31st December and will be duly returned. There is no doubt that those re-elected- will be new senators elected to fill vacancies which under the Constitution have occurred on that date; and section 42 of the Constitution is most conclusive that before those senators can take their seats, it will be necessary for them to take the oath. That section isas follows : -
Every senator and every member of tb e House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorized by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
There is no use in arguing that “ once a British subject always a British subject.” There is no. use in arguing that, having once taken the oath of allegiance, there is no necessity to repeat it.. Nor need we suppose that Senator Saunders might be asked to take the oath three times. Such arguments have nothing to do with the question. We have to comply with the terms of the Constitution, which provides that after every election there shall be a fresh taking of the oath. There has been a fresh election in this case, and it is necessary for Senator Saunders to again - take the oath. If it is suggested for one moment that senators who are re-elected in December next are not to again take the oath-
– That is suggested by Senator Keating.
– If that is so, we are making a most extraordinary departure from what I regard as the terms of the Constitution and the practice of Parliament.
– Does the honorable and learned senator think that the Heavens would fall if that- suggestion were carried out?
– That has nothing to do with the question.
– - Why should Senator Best describe the position as extraordinary 1
– Because we are ordered by the Constitution to take the oath after every election.
– No, we are not. We are not within the Acts which apply in Great Britain.
– That is so ; but we have to obey our own Constitution.
– The honorable and learned senator is misled by the practice which has grown up under a number of enactments in Great Britain.
– I have not looked at the enactments of Great Britain.
– But the honorable and learned senator has regard to the practice in Great Britain?
– To show that the view I am urging was the unanimous view of the Senate, I have only to direct attention to’ the Standing Orders, which were passed after the fullest consideration.
– Is this a party question.
– The honorable and learned senator has no right to make that interjection.
– I make it, anyhow.
– The honorable and learned senator is most ungenerous, and I am surprised that such an unfair interjection should come from him. I was saying that the Senate was of the unanimous opinion, as shown by the Standing Orders, that it was necessary for honorable senators to take the oath after every fresh election. On page 6 of the Standing Orders are the following words : -
The writ of election of each senator elected sincethe last sitting of the Senate, with the return indorsed thereon, having been previously delivered to the Clerk, shall by him be laid on the table, and each senator may then make and subscribe the oath or affirmation of allegiance in the form set forth in the schedule to the Constitution.
– The words are - “ may then make.”
– Does Senator Keating contend that the words mean that an elected senator need not take the oath unless he chooses ?
– The honorable and learned senator is contending that this standing order imposes an obligation to take the oath.
– And so it does.
– The word “may” has reference to the words “ oath or affirmation.”
– I am convinced that the standing order does impose the obligation to take the oath, and, moreover, I appeal to what has been the practice.
– There has not yet been a. second election in the Commonwealth.
– I appeal to the practice which is followed in all Parliaments.
– That is what I said. The honorable and learned senator is misled by the practice which has grown up under the British statutes.
– I am referring to the practice in all Colonial Parliaments.
– The British statutes apply to those Colonial Parliaments.
– It was never suggested for one moment that it was not necessary after a periodical election, for senators to take the oath.
– Most honorable senators had taken the oath of allegiance in States Parliaments before they were returned to this Chamber.
– That is true, but according to the Constitution, the oath has to be taken before the Governor-General. There is only one other point I have to mention. That is in reference to the contention that a penalty attaches to Senator Saunders under section 46 ; and on this point I must, with very great respect, differ from the President. Section 46 of the Constitution is as follows -
Until the Parliament otherwise provides any person declared by this Constitution to be incapable of sitting as a senator, or as a member of the House of Representatives, shall for every day on which he so sits, be liable to pay the sum of One hundred pounds to any person who sues for it in any Court of competent jurisdiction.
This penalty attaches only to any person who is declared by the Constitution to be incapable of sitting as a senator ; and I now turn to the Constitution to ascertain which persons are declared to be incapable. Section 43 is as follows -
A member of either Houses of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.
That is one class of persons who are incapable. Then section 44 provides -
Any person who -
Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen, or entitled to the rights or privileges of a subject or a citizen of a foreign power ; or,
Is attainted of treason, or has been convicted, and is under sentence, or subject to be sentenced for any offence punishable under the law of the Common - wealth orof a State by imprisonment for one year or longer ; or,
Is an undischarged bankrupt or insolvent ; or,
Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or,
Has any direct or indirect pecuniary interest in any agreement withthe public service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company,consisting of more than twenty-five persons :
Shall be incapable of being chosen, or of sitting as a senator, or as a member of the House of Representatives . . .
These are the only persons who are declared by the Constitution to be incapable of sitting in the Senate, and who, if they sit, are liable to the penalty prescribed by section 46. In England before any penalty of the kind could be imposed, it was found necessary to pass an Act of Parliament specifically dealing with the matter. The position in the case of Senator Saunders is that, having been elected by the State Parliament, but not having taken the oath, his vote might be disallowed if he attempted to exercise it. Senator Saunders is a senator all the same, but his vote may be disallowed until, he takes the oath of allegiance. That was my ruling last night, namely, that as Senator Saunders has not taken the oath I was obliged to disallow his vote. Before any penalty can attach to Senator Saunders, it will be necessary to follow the example of the old country where an Act was passed. In May, page 164, is the following : -
By the 30 Charles H. Stat. 2, 13 Will. III. e. 6, and 1 Geo. I. Stat. 21 c. 13, severe penalties and disabilities were inflicted upon any member of either House who sat or voted without having taken the oath. By the 29 and 30 Vic. c. 19, any peer voting by himself or his pi-oxy, or sitting in the House of Peers without having taken the oath, is subject for every such offence to a penalty of £500 ; and any member of the House of Commons who votes as such, or sits during an)’ debate after the Speaker has been chosen, without having taken the oath, is subject to the same penalty.
In my opinion, according to the Constitution, no penalty attaches to Senator Saunders, but it is necessary for him to take the oath again by reason of the fact that he has gone through a fresh choice or election, representing another body.
– I do not wish to add much to what I said yesterday on the subject. I desire, however, to say a few words, because, although I entirely agree with your ruling, Mr. President, I may not, perhaps, altogether concur in the line of argument which leads you to your decision. Following the remarks of Senator Best, I cannot see that any reference to our Standing Orders is of much use.
– The Standing Orders only show what was in the minds of honorable senators.
– The Standing Orders have been passed by honorable senators quite recently, and they cannot be any guide as to the requirements of the Constitution.
– The Standing Orders were framed, as far as possible, in accordance with the Constitution.
– That may be soin the opinion of the Standing Orders Committee or of honorable senators who agreed to the Standing Orders. But thestanding order referred to by Senator Best simply states the time at which a senatormay take the oath of allegiance. I am’ inclined to think that the oath is very often taken when it is not absolutely obligatory. There are many occasions on which the oath of allegiance is taken almost as a matter of form by persons who may have subscribed to it several times previously. I have not the slightest doubt that on many of those occasions the oath could be dispensed with without infringing any law or causing a breach of the Constitution.
– But the question is- - Does the Constitution dispense with thesecond taking of the oath ?
Senator-DRAKE. - The Constitution certainly requires that a member of the Senateor of the House of Representatives shall, take the oath of allegiance before hetakes his seat and votes, or he becomes, liable to a certain penalty. I do not understand that to mean that it is absolutely necessary for a senator who has been reelected before his first term of service hasexpired to take the oath at the commence- -, ment of a new session. It is not necessary, * however, to decide that point now. Thequestion raised depends on whether SenatorSaunders has from the time when he first took his seat and subscribed the oath been continuously a member of the Senate. Tomy mind there is no doubt that he has. An endeavour has been made to show that there is some difference between the selection or choice of a senator by a State Parliament under section 15 of the Constitution and the election of a senator by the people at a general election ; but for the purpose of the case before us, I do not think it matters which was the form. Senator Best was apparently under the impression, when he commenced speaking, that some special meaning attached to the word “chosen,” because it was used in the first part of section 15. I would point out, however, that thesame word is used in the second paragraph of the section in connexion with the election of a senator by the people.
– It is also used in section 7, which is the most important of all.
– It is used in each case of an election. Senator Saunders was appointed by the State Governor, and the terms of this section go to show that such an appointment is merely a stop-gap until an opportunity can be afforded to follow the more regular method of choosing a senator. That method was adopted on the 29th July; that is one day before the term for which the honorable senator was then holding his place had expired. The section says -
The Governor of the State …. may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State or until the election of a successor, whichever first happens.
You will notice, sir, that in the first part of the section - it was incidentally referred to by Senator Best in reply to an interjection - after the expression “ election of a successor” the words- “ as hereinAfter provided “ occur, clearly referring to the election of a senator by the people at the general election of members of the House of Representatives, or at the next election of senators. But in a later part of the section, we find only the words “ or until the election of a successor,” clearly meaning the choosing of a successor either by the Houses of the State Parliament sitting together, or at a general election by the people - either one or the other. I hold, sir, with all respect to you that Senator Saunders held his seat as the appointee of the Governor of the State until the 29th July, and as the choice of the State Parliament from the 30th July.
– We had no knowledge of that.
– That is another pointwith which I dealt before. I do not know that it is considered to have any bearing on the case now. What we- have to deal with is the question - “ Was Senator Saunders a member of the Senate during that time t “ If he was chosen by the “Parliament of the State, according to the forms of the Constitution, then he was actually entitled to the seat, even although the intimation did not reach the President until some time afterwards.
– How could he be entitled to take his seat if we had no notification of his selection ?
– He was in occupation of the seat at that time.
– Would it not be illegal for a senator to sit and vote if we had received no official intimation of his selection 1
– No ; I think he was entitled to occupy his seat all the time. On one occasion in New South Wales, when the writ had not arrived, the member elect entered the Legislative Assembly, swore himself in, and took his seat. Of course, it was an unusual thing to do, but it was done to assert the principle that ‘ when a man is elected he is entitled to take his seat. The other arrangement is made by a House of Parliament for the conduct of its own business. Our Standing Orders provide for the thing being done in a proper manner - for senators to come in to be sworn and to take their seats. As a matter of fact, the right to the seat is conferred by the choosing of the senator by the State Parliament in the prescribed manner, and not by the notification of it afterwards to the Senate. It seems to me that there has been no break in the continuity of the occupancy of the 3eat. The only point on which I differ from the President is that I think that Senator Saunders held his seat as the appointee of the State Governor until the 29th July, and that as soon as he was elected by the State Parliament he held the same seat as the choice of that body. I can see no break of continuity in his occupancy of the seat, and therefore no necessity for him to take the oath of allegiance again.
– In moving his motion, Senator Higgs made reference to the fact that the House of Commons places the utmost importance on this question, and that therefore he was quite justified in dissenting from the ruling of the Chair. The question of taking an oath before being qualified to sit and vote in the House of Commons has agitated that body for the last three centuries, and the nature of that oath has varied at different periods. There has been much legal and political conflict as to the nature of the oath which should be taken. It is the subject of a number of legal enactments which peculiarly apply to the House of Commons. Some members of that House have refused to take the oath of allegiance ; and in that regard many questions have arisen which Senator Higgs may find dealt with at some length, though not at very great length, in May’s Parliamentary Practice. But here we have to deal with the matter in a different way. We are only bound by section 42 of the Constitution Act. Senator Best, sir, in that part of his argument wherein he disagreed with your construction of section 46, involving the infliction of penalties, distinguished between our Constitution and the enactments in Great Britain. As I pointed out to him during the earlier part of his argument, it was his duty to have so differentiated, and not to be misled into assuming that the practice which had grown up as the result of those many enactments for English conditions should prevail here, where we are working under an absolutely new Charter.
– I disregarded them all, except in one instance.
– The honorable and learned senator said that if my contention with regard to section 42 were to be held good, “ then we should be led into this extraordinary position.” Why “ extraordinary” 1 Extraordinary, he said, byreason of the fact that it would be contrary to the usage of other Parliaments.
– And the Standing Orders.
– The practice in Great Britain is the product of enactments which have no application to this Parliament. With regard to the construction of section 15 of the Constitution, the honorable and learned senator argued that the first appointment of Senator Saunders by the Governor of Western Australia, with the advice of the Executive Council, was a definite appointment for a period, ending on the 30th July ; and that before the period had terminated the State Parliament chose Senator Saunders to fill a vacancy which did not exist. He seemed to find some fault in that regard. He said - “ We have therefore one constituent appointing Senator Saunders for a. definite period, and before it has expired another constituent coming in and appointing the same person to fill that place for another period that will commence at the date of its expiration.” I think he is drawing the matter too finely if he wishes us to understand that the purpose of section 15 is to bring into play two different constituents before the election by the people. What is the spirit of the section 1 We have to discover its spirit by looking, first of all, at section 7, which says -
The Senate shall be composed of senators for each State directly chosen by the people of the State voting until the Parliament otherwise provides as one electorate.
Section 15 provides for the filling of a casual vacancy. On account of the inconvenience and the expense which would be entailed by the holding of an election from the State, it provides for the temporary filling of any such vacancy, so that the State shall not be prejudiced. What do the framers of the Constitution say in effect in this section? They say - “The Senate must always be the elect of the people. It would be inconvenient and expensive to take the voice of the people of the State in certain circumstances. What shall we do in that case ? We shall go to the elect of the people - to the Parliament of the State, and ask them to temporarily fill the place.” - Until when ? Not necessarily until next election of senators, but until the next general election of members of the House of Representatives if that first happens.
– That is the governing provision.
– Yes, it is only a; provision for temporarily filling the place until the vote of the people can be taken.. But in the event of the State Parliament not being in session, what is to be done? It is provided that the Governor of the State, with the advice of the Executive Council - those words were purposely inserted to insure ministerial responsibility for the act - shall select a man to fill the temporary vacancy. If honorable senators will refer to the admirable notes on this section in Quick and Garran’s Annotated Constitution, they will find the phrase “ with the advice of the Executive Council” commented upon in that way. It is pointed out that the senator to fill the place permanently has tobe elected by the people at the very first opportunity - whether it be at an election of” the three retiring senators for the State coupled with the election of a certain number of members of the House of Representatives, or whether it be at a general election of members of the House of Representatives. But, in the meantime, the Parliament of the State shall be consulted-, and if it be not in session, the Governor of the State, with the advice of the Executive Council - a nomination for which the Ministry will be responsible to Parliament, and through the Parliament to the people - shall appoint a senator. In fact, the whole purpose of section 15 is not to provide two separate constituencies, to make two separate elections for two separate terms, tointervene between the occurrence of the vacancy and the consultation of the people ; but to throw upon the Executive Council the - responsibility of temporarily filling the vacancy until fourteen days from the next meeting of the State Parliament, which may ratify or depart from that appointment. But, in pursuance of his argument that the appointment of Senator Saunders was . for a period terminating on the 30th July, Senator Best has said the State Parliament proceeded to the election, or, if he prefers the word, the choosing of a successor when there was no vacancy. 1 wish to learn from the honorable and learned senator what there is in the Constitution to prevent the choosing of a person to fill a contemplated vacancy. In every ordinary case where the people will have to be consulted it will always be an election to fill contemplated vacancies.
– I did not say that they could not do it. I said I rather thought that a Court would hold it valid.
– Here is the position. Assume that in the case of any particular State there are three senators retiring on the 3 1st December of a certain year ; that in conjunction with other candidates they seek election ; that two of them are elected ; and that one candidate who was not previously a senator is also elected. Then the position would be. that the two would be actual senators and senators-elect, and the one who had not previously been in the Senate would simply be a senator-elect. As far as concerns those who were the actual senators and senators-elect, there would be no break in their occupancy of the position of senators. And that is the position of Senator Saunders. It has been stated by somebody in the course of this debate that Senator Saunders had no status here until the 5th August, but I am at a loss to find anything in the Constitution of a directory character which imposes any obligation upon anybodyto take any proceedings to notify the Senate of the election of senators to it. Under section 7 of the Constitution, in the last paragraph, it is provided that -
The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
But as to who is to notify the Senate the Constitution is silent.
– The argument was that the Senate had no official notice of the Governor-General ever having received the certificate.
– I shall come to that directly. Then section 15 of the Constitution says in the last paragraph -
The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-General.
There is nothing in that provision throwing any obligation upon the Governor-General or Upon anybody else to notify the Senate, or any one in it, of the name of the person elected. As Senator Best says, the argument was that there was nothing before theSenate to show that the Governor-General had been duly notified under the Constitution. The argument I am referring to is the one urged by Senator Dawson that itwas not until the 5th August that the President really received a notification fi om the Governor-General that he had been notified by telegram from Western Australia of the choice of Senator Saunders. There is nothing in the Constitution which prescribes the method by which the certifying should be done.
– Has the honorable and’ learned senator ever heard of a certificateby telegram ?
– I have seen telegrams acted upon in matters that are of asgreat importance as this, so far as evidence is concerned. There is one part of Senator Best’s remarks with which I agree, and that is where he differed from the President as to the construction of section 46. I have held the same opinion upon that point, from the time when this matter was first brought up last night. I think that thewords “ incapable of sitting,” used in section 46, refer to the incapacities dealt with in sections 43 and 44. The penalty that Senator Saunders would be liable to for any breach of section 42 of the Constitution would be the penalties attaching to thecommon law misdemeanour - of the breach of any ordinary statute to which specificpenalties were not attached. Such a misdemeanour is punishable by fine and imprisonment. If Senator Best agrees with; me in that, I must ask ‘ him this question : ‘ In the event of Senator Saundersbeing proceeded against in a court of competent jurisdiction for a breach of this statute’, in that as a senator he did not beforetaking his seat make and subscribe before the Governor-General, or other person Authorized by him, the oath or affirmation prescribed, would not Senator Saunders be able to say in reply, “ When I took my seat in the Senate, I had as a senator taken the oath prescribed” ? That would be a full and complete answer to any proceedings taken against him for a breach of this provision of the Constitution.
– Then it would be open for A.B., a candidate-for election to the Senate, at the next election, to take the oath before election ? That is the point.
– That is not the point, because A.B., a candidate for election, taking the oath before election, would not be a senator when he took the oath.
– That is the very point. I say that Senator Saunders was not a senator. He ceased to be a senator on the 31st July.
– He did not take the oath on the 31st July. Will any one pretend that on the day when Senator Saunders did take the oath he was not a -senator ?
– Of course he was, for the term ending 31st July.
– He was a senator when he took the oath. Upon what day -did he take his seat in this Senate without having taken the oath as a senator ? Senator Saunders’ reply to any charge made against him for a breach of the statute would be, I took the oath on a certain day in June, and took it in my capacity as a senator” ; and that, I say again, would be a complete answer to any proceedings that might be taken against him for the common law misdemeanour of breach of section 42 of the Constitution. Of course we are placed in rather a peculiar position so far as precedents are concerned in reference to matters like this. It has been pointed out already that the Senate is in a singular position in respect to its continuity of existence, which does not characterize a similar body anywhere else. In the case of the Senate of Canada, where senators hold their seats for life, there is a provision of the Dominion Constitution - section 128 - that senators and members of the House of Commons shall, before taking their seats, take the oath of allegiance. There is a further provision in the case of senators that, in addition to taking the oath of allegiance, every senator shall make a declaration that he possesses the necessary property qualification - I think it is 4,000 dollars in real estate, and 4,000 dollars real and personal over and above liabilities. The words “ before taking his seat,” which are also the words of this Canadian section, caused some discussion in the Dominion Parliament - as will be seen from Bourinot’s work on Canadian Parliamentary procedure, 2nd edition, page 140, that those words “ before taking his seat,” must have received the construction that I am putting upon them here. It was found necessary, in 1860, to pass a resolution that that declaration should be renewed within twenty days after the first session of every new Parliament by every senator.
– If Mr. G. H. Reid is re-elected to the House of Representatives, will he’ have to take the oath?
– He has ceased to be a member of the House of Representatives. In the case of a dissolution every member of the House of Representatives ceases to be a member. But in the case of an ordinary election for a vacancy in the Senate, those who are still occupying positions, and who go to the polls, still hold their office as senators until the election, and even after the election up to the 3 1st December, and if they become senators-elect as well as actual senators, there would be no break in the continuity of office.
– All those who are supporting the honorable and learned senator do not take that view.
– Section 13 says directly the opposite.
– In . Canada they found it actually necessary to qualify those words “ before taking his seat,” which appear in the Dominion Constitution, by taking them to mean, “ In the case of a Senator, before taking his seat in the first session of each successive Parliament.” I contend that the words “before taking his seat,” in our Constitution, mean that once a man has taken the oath as a senator, it is unnecessary for him to repeat that oath, so long as he is continuously a senator.
– I must say that the terms in which you, Mr. President, have stated your ruling today are more explicit than were the terms in which you put the position last night. For that reason your ruling to-day is easier to combat. Some of the statements made by you in your pronouncement this morning were certainly startling. I regret that the
Senate have not had an opportunity of seeing them in print. They are certainly of an important character, and, in being called upon to discuss them after merely hearing them, we are rather at a disadvantage. , For instance, one . of your statements was that the question before the Senate was whether Senator Saunders ought or ought not to have taken the oath twice over. I altogether dissent from that statement of the position, and I hope that the Senate will dissent from it. The question really is, whether Senator Saunders, when elected by a State Parliament, ought to have taken the oath. If we accept your statement, the question becomes a mere inquiry as to whether Senator Saunders took the oath or not ; and, if that is the question, we shall have to have a book of records in the Senate.
– It is admitted that he has taken the oath once.
– It is admitted because it is within our knowledge, but it may become a debatable point whether he has taken the oath or not.
– The question is whether, having taking the oath once, Senator Saunders should take it again.
– I contend that the position, as put by you, Mr. President, was not stated properly, or in the form in which it is really before the Senate. Another statement of yours - I onlytook it down in a fragmentary manner, and may have left out some of your words - was that the only question is, whether a senator, who has been continuously a senator, need take the oath twice over 1 That infers that the President is of the opinion that Senator Saunders has been continually a senator, and that is in direct conflict with the ruling of the Chairman that there has been a technical vacancy. That is a perfectly legitimate way of stating the President’s ruling, but I think it is a ruling which cannot be defended. Assuming that when the State Parliament met they had selected a person called Jones, would it have been correct then to say that Senator Jones had been continuously a senator ?
– The cases are not parallel.
– What change is there?
– There is the change between Saunders and Jones.
– What causes that change?
– A fresh election.
– There is no fresh election.
– The change is certainly caused by a fresh election. The person appointed by the State Governor and the person selected by the State Parliament are two distinct persons ; and why? Because a distinct vacancy was created, and. the vacancy was filled.
– No vacancy was created.
– It seems to me to be like contradicting the existence of the daylight for the honorable and learned senator to say that. The President made another reference which he might have enlarged upon. Referring to Senator Saunders, he used the expression that an honorable senator may hold office by either of three different qualifications. Where are these qualifications derived from ? From what part of the Constitution are we to assume that a senator may hold office by any more than one qualification ? He holds office either by election by the people, by selection by the State Parliament, or by appointment of the Governor of the State, and I contend that it is impossible for an honorable senator to hold office by virtue of the three qualifications. In any case Senator Saunders at best can only be said to hold office by virtue of two of these qualifications.
– I may, perhaps, be wrong, but what I said was that first of all Senator Saunders held the position of senator on the tenure or qualification of nomination by the Governor in Council; secondly, that he held it for one day only on the dual qualification of being nominated by the Governor-in-Council and being chosen by the State Parliament ; and, thirdly, by being chosen by the State Parliament. As to the second position, I am not quite sure that I am right, but still that is what I meant to say, and what I did say.
– I contend that there is nowhere in the Constitution such a confusion of qualifications. The Constitution contemplates that an honorable senatorshall be elected by the people. If he resigns before his term of office expires, the Governor inCouncil of the State appoints his successor .
– No, the State Parliament.
– I should say perhaps that the Governor-in-Council merely appoints a person to hold the place until fourteen days after the meeting of the State Parliament.
– If, iri the case of a casual vacancy, the Constitution contemplates that there shall be another election, it is an election conducted by the State Parliament.
– I am applying the Constitution to the present case in which the State Parliament was not sitting. So far as the Constitution applies to the present case there was an election of a senator by the people. The person who held the office of senator by election by the people, resigned his office when the Parliament of the State was not sitting- The Governor-in-Council of the State appointed a person to hold the place. These things cannot be confused by application to the same person. The third stage is reached when the fourteen days after the meeting of the State Parliament, for which Senator Saunders was appointed by the Governor-in-Council, expired. The State Parliament then chose a person to fill the vacancy.- Those are the three different methods of selecting a person to fill the office of senator, and honorable senators will admit that they might apply to three entirely different persons. Senator Keating quoted Quick and Garran, but, with lawyer-like astuteness, the honorable and learned senator did not tell us all that Quick and Garran say upon this subject.
– T did not quote Quick and Garran. I referred honorable senators to that authority.
– The honorable and learned senator having referred me to Quick and Garran, I shall quote from their work, since he seems to think that their opinion should have some weight. I refer to Quick mid Garran for the purpose of clearing up two points : First, whether on the expiration of the term for which Senator Saunders was appointed by the Governor-in-Council there was a vacancy ; and next, as to “the election of a successor,” a matter to which Senator Best referred, and in connexion with which that honorable and learned senator was interrupted by other honorable and learned senators, who differed from the views he holds. On the question of the vacancy, I ask honorable senators to turn to page 436 of Quick and Garran, dealing with section 15 of the Constitution. In note 7, these words are used -
The vacancies contemplated by this section are casual or extraordinary vacancies, arising from accidents such as death, disqualification, or resignation, and not those vacancies which take place at the regular expiration of senatorial terms. In thus choosing persons to provisionally fill vacant places, the members of the Houses of Parliament of the State must sit and vote together - that is to say the choice is made at a joint sitting of the Chambers, at which the vote of the majority prevails.
Quick and Garran there plainly say that when the Houses of the State Parliament meet to select a person they are filling a vacancy.
– Nothing of the kind. They do not say that at all.
– If the English language, as used here, can be distorted to mean anything but that, we had better adopt some other language for use in Australia. Let me read these words again -
In thus choosing persons to provisionally fill vacant places.
– That is right - places vacant by death, resignation, or accident.
– It is not said that the Governor-in-Council in appointing a person appoints him to fill a vacancy, but it is said that the Parliament chooses a person to fill a vacant place.
– I was not speaking of that.
– But Senator Best was speaking of that, and when he contended that the State Parliament met to select a senator to fill a vacancy, honorable . senators supporting the President disputed that contention. Quick and Garran clearly show that they do not recognise the appointment by the Governor-in-Council as filling the vacancy, but only as providing a temporary stop-gap.
– Read paragraph 92, to which I referred honorable senators.
– I shall deal, with that presently. Now as to “ the election of a successor.” On the same page, 436, Quick and Garran, in note 89, “ Election of a successor,” say -
The choice of a person by the Houses of Parliament of the State to take the place of a senator who has ceased to act is not regarded by tlie Constitution as the election of u successor ; it is merely a provisional arrangement to save the expense of a special State election.
– The honorable gentleman is giving us an interpretation clause from a text writer.
– I have been referred to this authority by honorable senators who are upholding the decision of the President. I may say that I endeavoured to obtain the work upon the Constitution by our President, which has been in our club-room for a year or so, but I find that it is gone, and it is also gone from the Library. If I had that book I should have very much pleasure in quoting from’ it. I have to fall back on the only other annotation of the Constitution with which I am acquainted. At page 437-, note 90, dealing with the question “ When the vacancy is notified,” I find this in Quick and Garran -
Until the receipt of the statutory notification, that cannot be done ; hence a delay in the notification would delay a choice by the State Legislature or an appointment by the State Executive to fill the place until the election of a successor.
That clearly shows that Quick and Garran do not consider either the appointment by the Governor-in-Council or the selection by the State Parliament as “ the election of a successor.”
– That does not agree with Senator Best’s contention, which goes in the opposite direction.
– Not at all ; that was my argument.
– I quote again from Quick and Garran, note 93,” The next election of senators” -
At “ the next general election of members of the House of Representatives,” or at “the next election of senators for the State,” whichever first happens, if the senatorial term has not then ex’pired, the provisional appointment of “ a person to hold the place “ is superseded by ‘ the election of a successor.”
There, again, Quick and Garran clearly show that in their opinion the “ election of a successor “ is the election of an honorable senator by the people. -Senator Keating has rightly said that in section 15 of the Constitution the main principle is the selection of a person to hold the place by the State Parliament.
– It is in that connexion that I referred honorable senators to Quick and Garran’s note on the words “ With the advice of the Governor-in-Council.”
– The honorable and learned senator’s contention is that the Ministry may be supposed to have the power of Parliament at their back, and that when the
Governor-in-Council makes an appointment, it is made with a full ‘knowledge that it will be ratified by the Parliament.
– The appointment is made by a Ministry having the confidence of Parliament, which Parliament has the confidence of the people.
– That is but the same thing in other words. On that point * let us take the Victorian case when Senator Reid was chosen. What did the Ministry do in that case 1 They said that beyond framing the Standing Orders to provide for the joint sitting of the two Houses, they would take no action as a Ministry. The logical conclusion of Senator Heating’s argument is that the selection by a State Parliament of a person to fill a vacancy will always be a party matter for a Ministry to decide.
– Not at all.
– Senator Reid was not put forward as the Ministerial candidate but was selected by Parliament, irrespective of the Ministry.
– Hear, hear ! Parliament was sitting, or otherwise the Ministry would have had to take action.
– If the Governor-in- . Council nominated a person and Parliament elected another person, a Ministry would not regard that as a vote of no confidence - they would be very foolish to do so. We have got into some confusion as to the takeing of the oath, and we ought to endeavour to ascertain the exact intention of section 42 of the Constitution. I take it that under the Constitution the Governor of a State reports the election under section 15 to the Governor-General, and that then the senator, according to section 42, takes the oath before the Governor-General “or some personauthorized by him.” What is the meaning of these last words 1 It is that the GovernorGeneral delegates this power to the President of the Senate, as the person before whom the oath must be taken, and every person selected by a State Parliament to fill a vacancy has to take the oath. I contend that the nominations by the State Governor is merely a stop-gap - that it is not regarded by the Constitution as a permanent appointment, and is not made with any idea that it will have to be ratified as a matter of course by the State Parliament. The State Parliament in this matter is entirely unfettered and may select any other person.
– As a stop-gap.
– No ; to fill the vacancy until the next election, and the person elected must, before he takes his ;seat, be sworn as prescribed in section 42. I feel bound to support the motion which differs from your ruling, Mr. President. I contend that when Senator Saunders was elected by the State Parliament a technical vacancy had been created, and that he should again have taken the oath.
– I hardly think that Senator Pearce is justified in stating that the President improperly or incorrectly put the question before the Senate.
– I never said that the President had put the matter improperly before the Senate.
– Incorrectly, then.
– I did not use the -word “incorrectly.”
– I am told that the honorable senator did not use the . word “ improperly “ ; therefore, I substitute the -word “ incorrectly.” At any rate, I understood Senator Pearce to call in question the way in which the President placed this matter before the Senate. In my opinion, the President put the case in a terse and thoroughly simple manner from his own stand-point - that is from the ;stand-point of the decision given. Senator Pearce seems to complain because you, sir, did not give the ruling from his -stand-point, but from your own. That appears to be rather unreasonable on the part of Senator Pearce. Honorable members seem to forget the nature of the oath about which all this fuss is made. As I understand, this oath became a matter of statute in the reign of Elizabeth, but before that period every person above the age of twelve could be compelled to take the oath of allegiance and fidelity to the Crown. Honorable senators are debating the question as if this were an election oath by which the senator returned declared that he . had not been guilty of any illegal practices. The question’ has been argued as though this were an oath required from Senator Saunders that all the provisions of the Constitution with regard to his nomination by the GovernorinCouncil, and his election by Parliament had been carried out. As a matter of fact, Senator Saunders has simply to take the oath of fidelity to the Crown. I think Senator Higgs gave his- case away when he pointed out that, having already taken the oath as a member of the Queensland Parliament, he took it again when he was appointed a Justice of the Peace. I understood Senator Higgs to admit that he took the oath on the second occasion as a matter of convenience - that it was mora convenient for him to take the oath, than for the authorities to have to find out that he had already subscribed to it in some other capacity. Senator Best expressed the opinion that Senator Saunders took the oath only for the time during which he was nominated as senator by the Governor-in-Council ; but I hardly think that contention can be supported. There is no limit to the oath of fidelity ; once it has been , taken it is binding on a man for all time. Suppose Senator Saunders were to be guilty - the honorable senator will excuse my suggesting such an idea - of some breach of the oath of fidelity and he was proceeded against by the Crown, could he shelter himself behind the plea that he had not taken the oath of fidelity sincehe was elected by Parliament, although he had taken it when he was nominated by the Governor-in-Council? Senator Keating used much the same argument as I am now endeavouring to place before the Senate. I agree with that honorable and learned senator that if Senator Saunders were to be sued for penalties for a breach of the statute, it would be a perfect answer on his part if he said, “ I have taken the oath of fidelity ; I took it as senator before I could take my seat, and I have continued a senator ever since, and the oath stands good.” I see some little difficulty in the matter of the official notification of the election. The difficulty is, however, one of technicality, which, in the interests of Western Australia, and according to the spirit of the Constitution, we are bound to waive. I can quite understand that a bogus telegram might be sent, or that a Parliament would hesitate to take a telegram from the GovernorGeneral as official evidence of a fact ; but at the same time I am afraid that we shall have to do so. The argument I am about to use is similar to an argument which you, Mr. President, used. If a very important debate were in progress in the Senate, and we were dividing just five minutes after the election of Senator Saunders by the State Parliament, would it be fair to the State to tell Senator Saunders that he must leave the Chamber and must not vote - although his vote might decide the question one way or the other - until the official notification of his election had arrived? In such case Western Australia would he left without equal representation in the State. The Constitution, so to speak, abhors a vacuum, and does not contemplate a State being placed in that position. Therefore, I say we must waive technicalities and carry out as far as we can the spirit and meaning of the Constitution. If the contention of those who are opposed to the President’s ruling hold good, there might be one day or five during which a senator, although elected twice over, could not take his seat, because the proper notification had not arrived, so as to enable him to take the oath the second time. A third reason for the vote I intend to give is that I think we ought to be loyal to our Chamber - that we ought to try to confirm our previous act, and not admit that we have made a mistake. Although there are difficulties in the matter, there are grounds which enable me to vote conscientiously in support of the ruling given by the President
– As a layman I have listened with great attention to the opinions of the various legal senators, and I admit that I have learned a good deal, which I hope I shall remember hereafter. I was struck by the remarks of the Minister for Defence with regard to section 15 of the Constitution. Curiously enough, although I am a layman, I had taken a similar view, namely, that, in the event of a senator resigning his seat, it is not necessary for the State Parliament to wait until the expiration of fourteen days after the opening of its next session before appointing a successor. I was very pleased to hear Senator Best put the matter of the penalties so clearly. I was half afraid that Senator Saunders might be open to an action for the recovery of £100 for each day on which he sat and voted, and I am very glad to discover that that is not so. Under such circumstances it is the British practice to bring in an Act of Indemnity, but, of course, according to the view of Senator Best, that course is not necessary here. I was very much struck with the force of the remarks of Senator Dobson as to the binding nature of the oath. My opinion is that the oath, having once been taken, it is sufficient for all time. An oath of fidelity does not cease at any particular time.
– But the honorable senator attaches no importance to an oath.
– I can assure thehonorable senator that the fact is quite the other way ; I regard an affirmation as just as binding as an oath. But I regard many oaths as absolutely unnecessary ; a man does not tell the truth because he swears to do so, but because he believes in telling the truth. I hope that, as an outcome of this debate, we may in time have another Act, making it perfectly clear that once the oath has been taken by -a senator, it shall suffice for the whole of the time during which he remains a senator. Standing order 1, paragraph g, is as follows -
The writ of election of each senator, with the return indorsed thereon, having been previously delivered to the Clerk, shall by him be laid on the table, and senators may then make and subscribe the oath or affirmation of allegiance in theform set forth in the schedule to the Constitution.
It would appear from that as though the taking of the oath was an optional matter.
– The meaning is that a senator “ may “ either affirm or take an oath.
– The meaning is that that is the proper time to take the oath.
– My own opinion is. that the taking of the oath is optional, and I have much pleasure in supporting the President’s ruling.
– I did not have the privilege of hearing the speech of the Chairman of Committees this morning, as I was compelled tobe absent on a matter of urgent publicbusiness. But last night I heard the honorable senator give his ruling, and I have alsoheard the concise exposition on the point by the President. Last night I differed from, the Chairman of Committees when he quoted, as applying to the case, the new Standing Orders which came into force only this week. The election of a senator for West Australia took place long “before theStanding Orders came into force ; and however much those Standing Orders may beapparently applicable, I do not see how they can be held to govern us in this matter.
– The Standing Orders, were quoted only to show the opinion of the Senate.
– I also respectfully dissent from the President in the view he expressed regarding penalties j and had it been decorous I should have made that fact known at the time. I communicated my dissent to Senator Saunders, whom I found a little anxious about the prospect of being subjected to heavy monetary penalties, and I pointed out to him privately, as I now do publicly, that though section 42 imposes an obligation to take the oath, that obligation is not coupled with any penalty, and stands almost in exactly the same position as the obligation in section 88. Section 88 says that a uniform Tariff shall be imposed within a period of two years, but it provides no penalty for the non-fulfilment of that duty. There is the obligation, but there is no accompanying penalty. I further submit that section 46, providing for a penalty of Jil 00, applies exclusively to the persons who are by the Constitution described as being incapable of sitting - namely, members of the other House, and the persons set out in the various sub-sections of section 44. In my view section 46 distinctly sets out that the penalty applies to any person declared by the Constitution to be incapable of sitting. Section 42 does not name anybody as incapable of sitting, but sections 43 and 44 do. It appears to me that the “ penalty “ section need not influence the decision of the Senate on the point at issue. No feeling of sympathy, or fear of financial consequences to Senator Saunders, need influence the vote or speech of any honorable senator - at any rate, it will not influence my vote. Naturally there is a spirit of camaraderie in the Senate ; but on this occasion we need not be influenced by a consideration of any serious consequences which may ensue to a comrade. Let us clear away all considerations of that sort, and deal with the application of principles. A good deal of what has been said in this debate has been based upon the law and the practice of the States’ Constitutions, with which every honorable senator is more or less saturated. So far as I am aware, the Senate is the only body in the Commonwealth of which membership is practically continuous. The theory of the Constitution is that the Senate is a continuous body ; consequently the membership of it must be continuous. The Chairman, in giving his ruling last night, laid it down that there must be a vacancy to permit of an election. I differ with my honorable and learned friend in that regard, because the Constitution absolutely provides for elections to take place in advance of vacancies. Elections for the Senate will take place this year at such a date that the results must be declared before the existing terms of office have terminated.
– The honorable senator mistakes me altogether. Of course I know that those are the terms of the Constitution, but I hold that in section 13 it declares’ that there is a vacancy.
-C’ol. NEILD. - I am sorry, that I misapprehended the remarks of the honorable and learned senator. I do not agree with the view - which has been expressed here pretty freely - that once a man has taken the oath of allegiance, it is unnecessary, that he should again take it. The one oath suffices during the occupancy of the same position.
– Heat, hear.
– I may tell my honorable and learned friend that I intentionally used the phrase “ the occupancy of the same position.” Senator Saunders has never ceased to occupy the position of a senator.
– That is another thing altogether.
– Until yesterday Senator Saunders had occupied the position of a senator unchallenged. In his occupancy of the position I submit that there has been no break which could possibly be described or formulated. It has been said that somebody else might have been selected by the State Parliament. Undoubtedly that is so, but it did not happen.- If Mr. Jones had been selected by the State Parliament he would undoubtedly have had to be sworn, but he was not selected, and that makes all the difference. Senator Saunders was already here and sworn in.
– But the possibility of Mr. Jones being elected shows that there was a vacancy.
– May I suggest to my honorable friend that the possibility that Senator Saunders might have met with an accident, and have been killed, or drowned, would not have been a reason for re-swearing nim.
.- Well, Senator Saunders was selected, and the possibility that he might not have been selected - that something might have happened to cause a vacancy - does not seem to me to be a reason for re-swearing him. I admit that «ny proposition is a little far-fetched, but it is just about as far-fetched as is the proposition that because he did happen to be reelected he must be re-sworn because somebody else was not elected. I admit that the point which has been raised is a novel one. It is regrettable , that it ‘ was not raised much earlier, and to my mind it is great pity that when it was raised in Committee it was not referred at once to the Senate, by which alone it can be determined. I disapprove of the course which was taken yesterday. The Senate appointed a Committee of the Whole to consider the contents of a Bill, and to report upon its provisions, and to do nothing else. It could not, I submit, properly entertain a question as to the validity of a senator’s seat, for that is what the matter amounts to. The question at issue is, not so much can Senator Saunders vote, but is he a senator ? If he is a senator, lie can vote, and his vote oan npt be challenged. His vote may only be challenged on the ground that he is not legally a senator, and the Committee, by every known rule of Parliament, had no power to question the validity of his return, without an instruction from the Senate. It had no more right to investigate the subject than it had to investigate the price of milk. Its duty, I submit, was simply to deal with the Defence Bill. I only mention the matter to show the unfortunate position into which we have got, in consequence of our departing from the well-known parliamentary rule - which may be seen in any one of the numerous editions of May - that a Committee is restricted to the terms of the order of reference. We dealt with something else, and, as a result, our two presiding officers are in conflict. I have no doubt that the position which Senator Saunders occupies is unchallengeable.
Senator Sir JOHN DOWNER (South Australia. - I do not think it necessary to prolong this discussion. There is a certain point at which argument might, I think, fairly be abandoned. I consider that the question of how many disembodied spirits can stand at the same time on the point of a needle is a comparatively substantial one, compared with that which has been discussed here for a day and a half. It is not very kind to honorable senators to prolong a discussion on a question which might easily have been settled in a much shorter time.
According to my view there is no substance in the matter. The only question is as to whether Senator Saunders should go a second time to the table and swear that he’ will . bear true allegiance to His Majesty the King. .Honorable senators opposite, in their infinite loyalty, seem to be never satisfied unless a ‘man keeps on swearing allegiance. I recommend my honorable friends not to be too superfluous. The constant reiteration of the same oath will not increase the loyalty of the person who takes it. I pointed out, respectfully, on a previous occasion, that a man having once become a British subject can never escape from the obligations thereby imposed on him. The right of the British Government to hang him, if he is guilty of treason, will always remain, whether he swears another oath or not. My argument is in a nutshell. It is that once a senator has taken the oath of allegiance as a senator he need not take it again on reelection, although he is re-elected a second time, a third time, or fifty times. The whole meaning of the section of the Constitution referred to is to provide for filling up an interval, and to prevent the expense of an election between a casual vacancy and a general election. Although several acts have to be performed, they are all for the same purpose, and it does not require any one to watch for the precise psychological moment “ at which a senator’s old appointment lapses and his new appointment begins, nor is there any need to rush at him with a Bible, and say, “ We are very sorry, old fellow, but you cannot come in unless you take another oath.” The point is too childish for serious discussion. With reference to my interjection when I asked Senator Best, “ Is this a party question T I wish to say that I referred to a little, rhetorical heat which I thought he was introducing into the matter’. Probably I should have done the same if I had taken his view, but I don’t wish the matter to go any further.
– I am astonished at the attitude assumed by thehonorable and learned senator who has just resumed his seat. In the first place he is wrong in his facts when he states that we have taken a day and a half to discuss this subject. We have done nothing of the kind. This matter arose last evening, when it occupied a very small space of time. It was then passed over until we met to-day. In the meantime other business was gone1 on with. To say that the whole of the last sitting was taken up in the discussion of this matter is a misstatement.
– We have spent five hours on it.
– There is a difference between five hours and a day and a half. As for Senator Downer’s statement that there is nothing in the point one way or the other, if that be so the whole of the blame rests upon his shoulders, because it was he who, in the exercise of his perfect right as a Senator, dissented from the Chairman’s ruling, and brought the matter out of Committee. If Senator Downer is now satisfied that the discussion has been a gross waste of time - indeed, from his tone one would imagine that he thought it was a criminal waste of time - he is the responsible person upon whom rests the blame for interfering with the ordinary progress of our business. It is Senator Downer whom Senator Nield should blame for not allowing him to claim a little more glory before the termination of our business this week. Senator Downer has repeated the arguments he previously used that once a man is a British subject he is always a British subject. I take him to mean that once a man has taken the oath of allegiance, it is sufficient for all purposes and for all time.
– I did not say that.
– What was the honorable and learned senator’s reason for bringing in the catch phrase, “ Once a British subject, always a British subject,” unless he meant to say, “ Once you have taken the oath of allegiance you have always taken it” 1
– Once a man has taken the .oath of allegiance under our Constitution, he has taken it for ever. That is my proposition unqualified.
– Surely the honorable senator’s experience as a lawyer shows him that as a matter of everyday practice and knowledge that principle has never been followed. I asked last night if he could quote instances from any Parliament in the British dominions where such a doctrine had been laid down. Not a solitary instance has been quoted. It has been the universal practice that a person re-elected to Parliament must subscribe the oath of allegiance.
– It is the* practice in the Senate to bow to the President on entering or leaving the Chamber, but it is not necessary.
– That is required by theStanding Orders.
– I am under the impression that we have distinctly provided in the Standing Orders that senators on entering or leaving the Chamber shall make an obeisance to the Chair.
– Does the honorablesenator think that that has anything to do with the question ?
-I do not think it has anything to do with the question, noi- with my line of argument, but I was replying to Senator Smith’s point. I join with Senator Pearce in the objection he has urged to the statement you havemade this morning, that the issue to be determined is whether Senator Saunders, should be sworn twice over. I take exception to that statement of the case, because- I think it does not disclose the true position. You could only state the issue in that way, because you consider that under thecircumstances Senator Saunders has held office continuously, and lias never vacated his seat as a senator since his first appointment by the Governor-in-Council of Western Australia. You have also laid it clown that if it is established that the honorable senator should be sworn in twice, in order to be consistent and to conform with the formalities entirely, he should be sworn in three times, because there was anotherperiod, which hitherto has not been touched upon, when Senator Saunders held his seat f orone day, from the 29th to 30th July, with thedual qualification of nomination by the GovernorinCouncil, and selection on the 29th July by the Parliament of Western Australia. I agree with Senator Pearce that it is an absolute absurdity to contend that under our Constitution any honorable senator can possibly have a dual qualification. He can have but one qualification at a time. He cannot possibly have two qualifications, let alone three, which you haveagreed would be an absurdity.
– Then Senator Saunders was a senator all the time, according to the honorable senator’s own contention.
– No. He was not a senator. He was appointed by theGovernorinCouncil of Western Australia to hold office until the 30th July. At the- expiration of that period he ceased to be a senator, and was in open competition for the seat with every duly qualified elector in Western Australia, and with any other candidate who might be nominated for the office by the State Parliament. The mere circumstance that the same person has in this case been chosen by the State Parliament does not get rid of the fact that two actions were necessary, and that between them a vacancy occurred.
– -The second election of Senator Saunders, according to the honorable senator’s own statement, took place prior to the expiration of his term of office under the first.
– It is a very doubtful question whether the second election of the honorable senator was legal ; whether the State Parliament of Western Australia was justified in filling a vacancy which had not occurred at the time. They actually selected a person to hold the place before the expiration of Senator Saunders’ term of office in the representation of Western Australia on the appointment of the Governor-in-Council of the State. Senator Best put this difficulty very forcibly. If a State Parliament has a right to elect a senator to represent the State in this Chamber to fill a vacancy while -smother senator is in possession of the seat, we might have had Senator Saunders appointed by the Governor-in-Council of Western Australia, and the State Parliament, upon meeting, deciding in its wisdom that it was better ‘ to appoint a person -called Jones. They might have elected him, and he might have come along here as the duly chosen senator to represent the State -of Western Australia, and made a claim for the seat which Senator Saunders remained in occupation of, as the nominee of the Governor-in-Council, until the 30th July. If that difficulty had arisen it would have been utterly impossible for you, Mr. President, to have admitted the claims of both Senators Saunders and Jones. You could not have done anything with Senator Saunders, because he would have had a right to the seat under our Constitution up to the 30th July, and you would have had to deprive the person called Jones, chosen by the Western Australian Parliament, of his seat until after the expiration of the time for which Senator Saunders had been appointed. It appears that the action taken by the State Parliament of Western Australia was not the filling up of a vacancy, but the overflowing of something that was already full up. The real question at issue is whether an honorable senator must be sworn in when he is sent to this Chamber. It does not matter whether it be a case of re-election or not, should an honorable senator be sworn in before he is entitled to take his seat in this Chamber and take a part in the proceedings of the Senate 1 If it is contended that it is not necessary for him to be sworn in, the whole business is at an end, but if he must be sworn in and must take the oath of allegiance, undoubtedly Senator Saunders at the present moment is not properly in this Chamber, and should not be allowed to take part in our proceedings until he has renewed the oath of allegiance which he took when he was merely the appointee of the GovernorinCouncil of Western Australia. There are two distinct actions which go to make up the supposed continuity of office which is claimed for Senator Saunders ; one the appointment by the GovernorinCouncil to hold good until the 30th July, and the other the .selection by the State Parliament. We must remember that you, Mr. President, had no knowledge that any person had been chosen by the State Parliament of Western Australia between the 30th July and 5th August.
– I called attention to the fact that, although I laid the certificate of the Governor-General on the table on the 5th August, I had it before that. I could not lay it on the table before that date because the Senate was not sitting.
– It is dated 3rd August.
– Perhaps I should have said that you had no knowledge whatever of any person being chosen to supersede Senator Saunders between the 30th July and the 3rd August, the date when you received an intimation from the GovernorGeneral that he had been informed by telegram that Senator Saunders had been chosen by the State Parliament.
– I had a telegram from the Governor of Western Australia on the 30th or 31st July, I am not quite sure of the date. I stated that yesterday.
– And the President said he could not accept that.
– 1 had not heard of that ; but I am now told you stated that you could not accept the telegram as sufficient. You felt that, it was not in order, as it did not fulfil the legal conditions, and so far as that telegram from the Governor of Western Australia is concerned, it does not affect the question. The first notification that was accepted was the intimation by the GovernorGeneral on the 3rd August, and that distinctly shows that there was a vacancy.
– Does the honorable senator contend that Senator Saunders filled the position illegally for three days?
– Undoubtedly he did. I take now the illustration of the next senatorial elections, which we may suppose will take dace in December. Suppose, for the sake of argument, that all the retiring honorable senators are re-elected, and the Senate reassembles on the 1st January. I desire that this may be made clear to you, Mr. President, on the presumption tha.t you will be the next President of the Senate, and J suppose there is no doubt of that. Suppose that the certificates of the election of some of the honorable senators have not reached you, and those senators present themselves, and claim to take their seats and to take part in the proceedings of the Senate, would you, or could you, admit them ?
– I shall deal- with that question when it arises. I do not think the honorable senator should ask me such a question. I have not considered it. I do not know
– It is of no use Senator Dobson shaking his head. I want to show the absurdity of the contention that because a senator is re-elected he, therefore, has never vacated his seat. The mere fact of the re-election shows that there must have been a vacancy, for otherwise there would have been no justification or need for any election. In order to have the matter made perfectly clear, I desire to know from the President what action he would take in the event of a certificate of re-election being received after the senator himself has arrived. If the office be continuous, the certificate is not necessary, and the reelected senator would be able to march into the Chamber as he had done day after day during his previous term of office.
– The President has told us that he cannot anticipate questions and decide them before they arise.
– 1 am not asking the President to anticipate any question. I am merely putting the proposition to him in order that he may have an opportunity of considering the point, in view of the difficulty which I have suggested. I ask thePresident whether, after the next election, when the senators present themselves, it will be held in the case of those who have previously occupied a seat, that they are not obliged to take the oath of allegianceMy own opinion is that such senators must take the oath, because the Parliament of 1904 will be a new Parliament. Under thecircumstances, in order that a senator may have a right to take his seat, he must subscribe to the oath, whether or not he be a. re-elected senator.
– We are a continuous, body ; there is no general election for theSenate.
– Surely Senator Walker ought to be satisfied with the prolonged discussion we had on that aspect of the question in another connexion - as towhether we are a continuous body, and whatis the meaning of a “ new “ Parliament. There is no doubt that a general election constitutes a new Parliament. In the records, the Parliaments will be numbered according to the number of general elections. The present Parliament will be known as the First Parliament of the Commonwealth, and theParliament after the next election will bethe second Parliament, and so on. That is the practice throughout the British Empire. It is absurd for any senator toseriously contend that, because a man takes, the oath of allegiance in the first Parliament of the Commonwealth, he is entitled in the second Parliament of 1904 to take his. seat without again swearing allegiance. When a senator is compelled to face the rivalry of every duly qualified elector in his State, there can be no doubtthat his seat has become vacant, and that if he survives that risk, and is re-elected, the period between the expiration of his previous term and his renewing his duties, constitutes a vacancy. There was one remark of yours, Mr. President, last night, when; giving your ruling, that struck me very forcibly ; and if my version of your words misrepresent you, I shall be only too happy to be corrected. I understood you, sir, to say that a senator is a senator by his election by the electors of his State, and that noncompliance with the formalities, or rules, or regulations of the Senate cannot prevent his. being a senator - that he is a senator by virtue of his election.
– Yes, I said that.
– And that, therefore, his not taking the oath of allegiance cannot deprive an elected senator of his position. I venture to say that that remark is entirely beside the question. Nobody has suggested that Senator Saunders is not a senator ; the only question is whether Senator Saunders has fulfilled every condition, and is entitled to exercise the rights and privileges of a senator. My contention is that while an elector may be made a senator by his fellow electors, he must afterwards comply with all the formalities which are laid down in the Constitution, and in the rules and regulations of this Chamber. If a man be elected a hundred times, he has no right to take hisseat unless he complies with everyone of the formalities and regulations. And the first and most imperative regulation is that, before he takes his seat, he shall be dul y and properly sworn. Until he is so sworn, he has no right to sit and vote or take part in any of our proceedings. I do not wish to labour this question, although I am not of opinion that the discussion has been in any way a waste of time. This is a matter of the first importance, about which we ought to be distinctly clear, and my only regret is that some of the legal gentlemen, who in their profession adhere absolutely to the rigid terms of an enactment, seem to be perfectly willing to take another course in this Chamber, and to read into the Constitution that which they would not think of suggesting under other circumstances. Further, I feel quite sure that a properly constituted and sober-minded Bench would not allow them, to take such a view of an enactment, if they endeavoured to do so.
– I desire to emphasize some of the remarks which have been made in support of the ruling of the Chairman of Committees. The Senate is getting into a very difficult position, arising out of the vagueness of the Constitution, for which some honorable senators present are responsible. It may be that those who drafted the Constitution, are to-day really unaware of what they did. The peculiar’ position is that, according to the statements of vourself, Mr. President, and some other honorable senators, a senator who has once taken the oath of allegiance is under no obligation to take it again.
– I beg the honorable senator’s pardon ; I never said that. .
– Your arguments, sir, were so similar to those of the other honorable senators to whom I have referred, that they led me to believe that you concurred in their view. When the members of the Convention were drafting the Constitution they should, if they desired to be plainly understood, have provided simply that those who had not previously subscribed to the oath should be required to do so before taking their seats. I suppose that there is not a single senator who has not taken the oath of allegiance several times ; I know that the President must have taken it an unlimited number of times without making any objection. When the custom which has prevailed in Great Britain and other countries was cited, Senator Keating laid some emphasis on the fact that for 300 years there, was a difference of opinion with respect to the oath in the British Parliament. But will Senator Keating say that any one in the British Parliament ever moved that the oath should not be taken 1 The question in the British Parliament never was whether or not the ‘ oath should be taken, but was always as to the form of the oath.
– The British Parliament on one occasion tried to stop a man taking the oath.
– But the trouble in the British Parliament has always been in connexion with the form of oath. If the majority of the Senate uphold the ruling of the President, and I have the honour to be re-elected, I shall consider that there is no necessity for me to again take the oath. When the President gives a ruling, such as has now been given, I do not think that it is fair for him to say that he will delay: dealing with questions of this description until they arise. A ruling given now ought to be upheld as long as the Constitution itself.
– Will the honorable senator pardon me ; the only ruling that I have given is that Senator Saunders need not again take the oath to entitle him to sit and vote in this Parliament.
– But the ruling given in connexion with Senator Saunders should stand with respect to every other honorable senator who may be in the same or a similar position. When the Standing Orders were under consideration, we . struck out the reference to the rules and usages of the British Parliament. That was done on the understanding that we should. establish our own usages. Any one who says that we are trifling with time in discussing this question is not carrying out that understanding. I hope, sir, that if your ruling should be sustained, honorable . senators will always stand by the usage which they will have established by their votes. What we are discussing is not the question of taking the oath of allegiance in a general sense, but the propriety of taking that oath under certain circumstances. Senators Downer and Keating have argued that if a man takes the oath of allegiance once it ought to be sufficient. Suppose that on the occasion of my first election I had said to the Senate, “ There is no necessity for me to be sworn, as I have already taken the oath of allegiance.”
– As a senator ?
– It does not matter in what capacity the oath was taken.
– What I said was that if a man had once taken the oath of allegiance as a senator and remained in continuous occupation of his seat, he need not take it again.
– The honorable senator did not say that previously.
– Every time.
– Senator Downer said that if a man had once taken the oath of allegiance, he might be arrested if guilty of treason wherever he might be.
– I did not say that. I said every time “as a senator and in continuous occupation of his seat.”
– Suppose that I should be re-elected to the Senate, I should have already taken the oath of allegiance as a senator; but the new senators might say, “We have no personal knowledge, and you will have to prove that you did.”
– They will have the proof in the records.
– Yes; but the honorable and learned senator ought to know that it is more convenient to comply with a rule of this description than to hunt for proof. Would it not be much more convenient to the new senators on that occasion for me to take the oath of allegiance in their presence than to ask them to hunt in the records for proof that I had previously done so ? Cannot the honorable and learned senator see that that, in many instances, is the reason why it is advisable that any one should repeatedly take the oath of allegiance ? Suppose that for some offence or other a man had been struck off the commission of the peace, and that in a year or two - for services rendered to his district or country - he were recommended for appointment as a justice of the peace, he would already have taken the oath of allegiance as a justice of the peace.
– There would have been a break in the term of office.
– There is a break in the term of office of any senator who has to be re-elected.
– If there were no break in the continuity of his service he would not require to be re-elected. The fact that in the case I have put, a justice of the peace would be required to take the oath of allegiance again, shows the absurdity of the arguments which have been adduced by Senators Keating and Downer. Some honorable senators have argued that because the Senate is a contin uous body the continuity of a senatorship by a man so long as he is re-elected is not broken. The same thing occurs in connexion with an elective Legislative Council. Although in most instances only a third of the members of the Legislative Council have to retire periodically, keeping up a stronger continuity than the Senate could do, yet on re-election they have to be sworn, although they had previously taken the oath of allegiance as a Legislative Councillor.
– They do not stand for re-election until their term has expired, whereas senators have to stand for reelection before their term has expired.
– It does not matter, because the Constitution distinctly says that their seats become vacant on the 31st December whether re-elected or not.
– Where does it say that? 1
– Section 15 distinctly prescribes the mannerin whichacasual vacancy shall be filled. If the State Parliament is in session, it has to fill the vacancy ; otherwise the State Governor, with the advice of the Executive Council; has to appoint a senator to hold the place until the expiration of fourteen days from the beginning of the next session of the State Parliament. I hold that the action of the State Governor, the action of the State Parliament, and the action of the electors at a general election have no relationship to each other. Some honorable senators have said that because the phrase “ until the election of a successor, whichever firsthappens” isrepeated two or three times in the section, it has some effect on the continuity of a senator’s standing here. It does not matter whether it refers to an election by the State Parliament, or to an election by the people of the State ; it means the election of a successor. If a man is his own successor in either case, does it not show that a vacancy must have occur red?
– A man cannot be his own successor.
– If the honorable and learned senator were re-elected to the Senate at the end of this year he would certainly be as much his own successor as any one else could be his successor.
– And the Constitution Act says so.
– That is a fallacy.
– I believe that should the time come the honorable and learned senator, like any other sensible man, would be quite willing to take the oath of allegiance again. What harm would it do if he did ?
– The question is not whether he would be willing to do it, but whether he would be obliged to do it.
– According to the honorable and learned senator I should not be obliged to do it; but I hold that my vote would not be recorded unless I had taken the oath of allegiance. The President or any other senator would be quite justified in objecting to my voting in the Senate until I had been sworn. Honorable senators are confusing the issue.
– No ; the honorable senator is confusing it.
– I am quite clear on the question. I should be quite willing if re-elected to take the oath of allegiance.
– The question is not the honorable senator’s willingness, but his responsibility to do it.
– I hold that I take upon myself that responsibility whenever I appeal to the electors.
– I do not.
– Why do I offer myself as a candidate ‘I
– Because there is a vacancy.
– There will not be a vacancy when the honorable senator goes before his constituents.
– The Constitution Act says there is a vacancy.
– If I should be re-elected I should be my own successor, and my duty would be to take the oath of allegiance. I consider that it is the duty of every candidate who is elected to take that oath. ‘
– No one would object to the honorable senator doing so.
– What are honor able senators making a fuss about ? Senator Best has given a clear, straight-out ruling, in which he has clearly shown that every man who may be appointed or elected to the Senate is required by the Constitution to take the oath of allegiance. It is of very little consequence how often it istaken. I dare say that many honorable senators would like to live sufficiently long to be sworn here half-a-dozen times. What is the use of their objecting to a senator taking the oath now? What is the use of their saying that, because we did not discover long ago that Senator Saunders was in a false position, we have no right to ask that he should be required to take the oath of allegiance now, and so prevent a similar error from occurring? I hope that the Senate will be very careful in coming to a decision, and if time for further consideration should be required, I shall be quite prepared to support a motion for the adjournment of this debate.
Question - That the President’s ruling be disagreed with - put. The Senate divided.
Majority … … 9
Question so resolved in the negative.
– It is almost too late to commence with’ new business now, but I would ask you, Mr. President, if it would be possible to obtain a reprint of the Defence Bill, showing the amendments made in it, by Tuesday next ‘f It will be necessary to meet on Tuesday to deal with the Electoral Divisions Bill. I move -
That the Senate do now adjourn.
– I believe that the question of the adjournment can be debated under the new Standing Orders. I desire to point out that we have no prospect of a week’s work before us, and that, therefore, there is no need for the Senate to meet till Wednesday. I am not speaking for myself. I have no engagements and am perfectly free to be here. But the business-paper is practically a clean sheet, and we have only a few clauses of the Defence Bill to consider. Why should we sit for four days when there is only a prospect of two days’ work. I have no idea of lengthy speech-making upon the Electoral Divisions Bill, and I know that it would be extremely inconvenient to a number of honorable senators to come on Tuesday. I submit, with no ill grace, that there was an agreement last week not to meet till Wednesday of the present week to suit a number of honorable senators.
– I never heard of such an .arrangement.
– I thought it was generally known.. If we meet on Wednesday we shall have three days in which to deal with the business brought before us.
– I trust that the Minister for Defence will not withdraw from the position that the Senate should meet on Tuesday. Those of us who come from distant States are naturally anxious to get back to our constituents.. Senator Neild and others have opportunities of meeting their electors every week end. We ought to get the business. of the session concluded as soon as possible. Senator Neild says that there are only a few clauses of the Defence Bill to deal with. But we have only reached clause 60, and there are 120 clauses in the Bill. . There may also be some delay in getting through the Electoral Divisions Bill.- If there is as much delay in the Senate as there was in another place, we can reasonably expect that there will be sufficient business to occupy all the week.
– -Our experience this week is ample justification for meeting on Tuesday. We were told last Friday that there was not sufficient work to occupy us for a week. But the result has been that even now we have not concluded the consideration of the Defence Bill. I venture to say that at the end of next week we shall find that our work is incomplete. In addition to that, Wednesday is private members’ day, and we shall only have the latter part of the evening for Government business. Of course if we get through the business before the end of the week, we can adjourn earlier.
– I trust that the Minister will not listen to the suggestion that we should not meet until Wednesday. Every moment of the session is valuable. In a short period this Parliament will be dissolved. Before that can happen our electoral system needs to be put in full working order. . It is necessary that a measure which occupied very much time in the other Chamber should be considered by the Senate next week. We have no guarantee that honorable senators belonging to the party who opposed that measure in the House of Representatives will not resort to the same tactics in the Senate. If so, there is not the slightest probability of the Bill passing within a week. I am extremely anxious that we should meet on Tuesday, so that if some honorable members enter upon a “ stone-wall,” they will have a full week in which to enjoy themselves and make others miserable. Then we have to finish the Defence Bill. I am ‘sure that Senator Neild still has 100 amendments to move, upon .each of which he will feel bound to speak at least a dozen times. Therefore, that measure will consume a large portion of our time during the week. It is also incumbent upon us to get ready for the receipt of another important Bill, which, I believe, will pass through the other House during next week. Senator Neild has said that we did not meet till Wednesday this week in order to suit the convenience of some honorable senators. I do not know to whom he referred. I never heard of any arrangement of that character ; and if there were it is not a precedent that should be followed.
There are a certain number of honorable senators who have to ‘remain constantly in Melbourne during the sittings of Parliament, and ‘who desire to attend to their duties. Others go home every week and enjoy the society of their families. Having these privileges, one would naturally expect them to be somewhat considerate of the convenience of others who are not so fortunately situated. But in this case, as in others, it appears that the more some individuals are pampered, the more they must be pampered.
– The minimum wage people, for instance.
– It would have done the honorable senator a great deal of good if he had had to hump a swag through Queensland for a thousand miles, and live on dumper and “ tinned dog.” But he was brought up in the lap of luxury he has had no experience of the hardships of life, and has no sympathy for those who have to endure them. It is exactly the. same with some of our friends from South Australia. They have no consideration for those unfortunate senators who come from outlying portions of the Commonwealth. .1 desire that the Senate should meet on Tuesday, as I am obliged to stop in Melbourne doing nothing half my time.
– I am surprised that Senator Stewart should talk so much about selfishness. If I thought for a moment that there would be any possibility of shortening the session of Parliament by our meeting to-morrow 1 would assist the honorable senator in that direction. I would ask honorable senators who are opposing the suggestion that we should meet on Wednesday next, whether they desire to cut the tails off all other dogs because their own tails are cut off. I firmly believe that if we did not meet at all next week, we should not be delaying the closing of the session. Some statement has been made about the adjournment over Tuesday this week, and I f reely admit that the Senate was adjourned until Wednesday in this week to suit the convenience of several honorable senators. I should like,- however, to call the attention of the Senate to the fact that in agreeing to that the Vice-President of the Executive Council said distinctly that the only reason for meeting on the Tuesday was to hurry on with public business, and that we might endeavour to clear the business-paper. That was done, and the Vice-President of the Executive Council then said that there was no necessity for us to meet on Tuesday this week. The business-paper is not crowded now, and why should we be accused of selfishness because we wish to adjourn until Wednesday, when there are only two matters on the paper in connexion with which it may be anticipated that some difficulty will arise. We need not anticipate that any “ stonewall “ in connexion with those matters will take place in the Senate. Even if we meet on next Tuesday, and sit for four days next week to get through with the business, there is no possibility that another important measure being considered in the House of Representatives will then be before us. The demand that we should sit on Tuesday appears to be due to envy on the part of the Western Australian and Queensland senators, who, because they cannot go to their homes, do not like to give other honorable senators the satisfaction of so doing. Victorian senators are often accused of selfishness, but I do not think that they would object to our adjournment until Wednesday. They have no objection to allow other honorable senators to enjoy the same privileges as themselves, so long as they do not delay the business of the country. I should not be so unreasonable as to ask for the adjournment if I thought that it would delay the business of the country. Honorable senators are aware that we cannot suit our own convenience, but are dependent to some extent upon the whims of another place. We must wait to get our business from the House of Representatives ; and, until it is sent on to us, we cannot deal with it. We can easily get rid ‘ of the business on the paper at the present time by sitting three days next week, and if we sit three days in the following week, we shall then have plenty of time to do the business which is likely to come from another place.
Senator MACFARLANE (Tasmania).I hope the Minister for Defence will agree to postpone the meeting of the Senate till Wednesday next, not only for the convenience of honorable senators who are anxious to go home, but for a reason -which has not been mentioned yet. Very few honorable senators are familiar with the technicalities of the Defence Bill, and Senator Cameron - to whom we look for advice and assistance in this matter - is not likely to be here until Wednesday next. The condition of the business-paper at the present time does not necessitate our meeting on Tuesday. I shall be in Melbourne, and I am, therefore, discussing the question quite disinterestedly. I deprecate long speeches and discussions upon matters of no importance. I feel that if we met less often and did more business when we do meet, we should get through our work more expeditiously.
– Senator Macfarlane has given the Minister for Defence an excellent reason why he should insist upon the Senate meeting on Tuesday next. The honorable senator asks that we should wait until we have another military senator present to assist us in debating the Defence Bill. We have had the benefit of the military knowledge of Senator Neild, in the shape of four pages of amendments. If we wait until other military senators are present, and we get four pages of amendments from each of them, we shall not hasten the passage of the Bill. I offer the suggestion to Senator Drake that when he next decides to secure the meeting of the Senate on the Tuesday, he will delay his motion until nearly 4 o’clock. The honorable and learned senator will find that a most effective means of stopping the eloquence of honorable senators from South Australia and New South Wales. If that course had been adopted to-day, we should have had an hour in which to make progress with the Defence Bill. I believe that by meeting on Tuesday next we shall be able to get through the business on the paper, and we may be able to adjourn over the whole of the following week.
– I think I ought to explain how the question presents itself from the point of view of the Standing Orders. The Minister for Defence has moved - “ That the Senate do now adjourn,” and no amendment has been moved upon that. Unless the honorable and learned senator asks leave to withdraw that motion, and moves another- - “That the Senate at its rising adjourn until “ a certain date, the Senate will adjourn until Tuesday next, in accordance with a sessional order, if the motion at present before the Chair is carried.
– I support the suggestion that we should not meet until Wednesday next. It is said that when men are gambling all the weaknesses of human nature may be seen in a very brief period, and I think I have this afternoon discovered the weaknesses of some members of the Senate. When they desire to be away on the Tuesday, they anxiously support a motion to adjourn the Senate until the Wednesday ; but on this occasion some of them do not desire to get away, and they express themselves as anxious to get on with business. Senator Playford has been one of the most strenuous opponents of Tuesday sittings until recently. There is only one item on the business-paper besides the consideration of the report of the Printing Committee.
– There is more than that.
– The Minister for Defence knows that it is not proposed to go on with the consideration of the Eastern Extension Company’s agreement next week.
– I do not know that.
– The honorable and learned senator knows that the various manoeuvres which have to be executed can. not be performed in less than a week.
– I do not at the present time know of any reason why that business should not be gone on with next week.
– The honorable and learned senator knows that the Government desire to get the other partners in the Pacific Cable to withdraw their request for a conference in connexion with this agreement. He knows also that until that is secured, the Government are not prepared to bring the matter forward, because they are aware that if they do the Senate will reject the agreement and insist upon a Conference. Before I entered Parliament I was one of those individuals who thought there was no reason why members qf Parliament should not meet every day in the week duringordinary business hours. I have since come to the conclusion that one man may attend in a House of Parliament very regularly and do very little work, whilst another may put in an appearance for about two days a week, and do a very great deal.
– In the way of questions.
– He must give some attention to the matters in connexion with which he asks questions. I have come to the conclusion that if Parliament meets for three days in each week, the members will find that Parliamentary life will wear them out quite soon enough. I should like to know what is in the mind of the Minister for Defence in resisting the proposal to adjourn until Wednesday. If the honorable and learned senator anticipates that there -will be a great deal of opposition in the Senate to the Electoral Divisions Bill, I may say that, apparently, the Senate is not “built that way.” There may be a few speeches on the part of earnest followers of Mr. Reid, but there will not be anything like “ stonewalling.” There will be no occasion to have cabs here, as there apparently was when we were discussing the Naval Agreement Bill. Honorable senators are too fond of their beds to make anything of that kind necessary, In another place there may be some purpose to be served by continuing the discussion when honorable members may be successful in ousting a Government. In view of the business on the paper, I shall support the adjournment until Wednesday.
– I do not see the slightest object to be gained in coming here on Tuesday. There ought to be some degree of urgency to force us to come here to endure the possible waste of time. So far as the. Electoral Divisions Bill is concerned, and it is anticipated that it will be found debatable; I think there will be no “ stonewalling “ of that measure in the Senate. I feel sure that neither Senators Neild, Walker, nor any other honorable senator from New South Wales, will, merely for the purpose of prolonging the sittings of the Senate, say anything more than they feel their conscience requires of them. There is no business which renders it necessary for us to meet earlier than Wednesday, and I strongly ‘urge the Minister to consider what is the wish of, I think, a majority of honorable senators, and not to -call the Senate together on Tuesday.
– My circumstances ore rather peculiar. I was anxious to be present four days last -week and also this week, but to my surprise I found that there was no meeting on Tuesday last. It will be seen that I am not speaking with any selfish motives. If it is necessary to meet on Tuesday I am sure honorable senators will attend, but if there be no necessity to meet more than three days a week until near the end of the session, I hope we shall not be called together before Wednesday.
– I hope we shall meet on Tuesday ; and then, if there be business sufficient for only three days, it will not be necessary to meet on the Friday. At any rate, if we meet on Tuesday next week, it will make it possible, perhaps, to have an adjournment over the following week, which personally would suit me better than sitting for three days in each week. A week’s adjournment would enable honorable senators who live at a distance to return to their homes and transact private business.
– If I thought for a moment that a promise, either express or implied, had been given that the Senate would not meet on Tuesday next, I should certainly not press the motion ; but I have no knowledge of any such engagement. This week an arrangement was made that we would not sit on Tuesday in the absence of any business necessitating calling the -Senate together ; but . next week there is urgent and important business which ought to be dealt with. I propose to first deal with the Electoral Divisions Bill, which it is necessary should bo disposed of at once, and I do not anticipate any obstruction or unusual delay in connexion with the measure. We have made very little progress with the Defence Bill, and it is desirable that we should complete the consideration of the Naval Agreement Bill. I do not say that we -shall be in a position to deal with the latter measure next week, but at present I see no reason why we should not do so.
– Will the Minister explain what is proposed in regard to the conference on the Naval Agreement Bill ?
– I certainly shall not ‘ do so, because such an explanation is not necessary for present purposes. I propose to deal with the Electoral Divisions Bill, and complete its consideration, and then to proceed with the Defence Bill. At the ordinary rate of progress we have sufficient work to occupy four days of next week. If we do not sit on Tuesday, Government business cannot be commenced until a quarter to eight o’clock on Wednesday night, and that would make it impossible to complete the business next week.
– There is no private business of any importance, and I am sure that Senator Dobson, who has a motion on the paper, will give way to the Government.
– I believe there is an important private motion for Wednesday, and we shall do very well if we succeed in clearing the notice-paper by sitting four days. The Government must be allowed to arrange their business, and although I have spoken to a number of honorable senators, I have found no strong objection to meeting on Tuesday, when, as I have intimated to a number of honorable senators, it is proposed to deal with the Electoral Divisions Bill. Under the circumstances it is not fair, even if a majority of honorable senators present are in favour of our meeting on Wednesday, to take the control of the business out of the hands of the Government. Throughout the session I have shown every disposition to meet the convenience of honorable senators, and if I could see my way clear I should be most happy not to meet until Wednesday next. My own impression is that a majority of honorable senators desire to meet on Tuesday, and those in favour of adjourning until Wednesday ought to gracefully give way.
Question resolved in the affirmative.
Senate adjourned at 3.25 p.m.
Cite as: Australia, Senate, Debates, 4 September 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030904_senate_1_16/>.