2nd Parliament · 1st Session
The President took the Chair at 2.30 p.m., and read prayers.
– I wish to ask the Vice-President of the Executive Council, without notice, if he will lay on the table’ all papers relating to the retirement of Mr. Sholl from the position of Deputy PostmasterGeneral of Western Australia, and the proposed transfer of .Mr. ‘ Woodrow* postmaster at Bunbury, to the position of postmaster at Fremantle, Western Australia ?
– I shall have no objection to lay these papers on the table at a later stage of the sitting if they are procurable.
– I desire to ask the Minister for Defence, without notice, if it is the intention of the Government to assist monetarily towards the despatch of an Australian .rifle team to Bisley this year ?
– I think that honorable senators who intend to ask questions, as a matter of urgency, should send copies of them to the Department in order that answers might be prepared. In this particular case we are ready to reply to the question, and the answer is - “ No.”
MAIL SERVICE : TASMANIA,
asked the .VicePresident of the Executive Council, upon notice : - -i. Is the Tasmanian Government Railway Department under contract to the PostmasterGeneral to carry mails according to the schedule of times set forth in the Inland Mail Table published in the Tasmanian Postal Guide!
– The answers to the honorable senator’s questions are as follow : -
IMMIGRATION RE STRICTlON ‘ ACT.
asked the Vice-President of the ExecutiveCouncil, upon notice : -
– The answers to the honorable senator’s questions are as follow :^ -
asked the VicePresident of the Executive- Council, upon notice :-
– The answers to the honorable senator’s questions are as follow : -
HANNAH p. DRAKE.
asked the Vice-President of the Executive Council, upon notice: -
What sum was paid -
– The answers to the honorable senator’s questions are as follow: - i- (<) £200. (i) £567 7s. id. *a- £s°3 !3S- 7d-
Senator MCGREGOR laid on the table the following papers : -
Transfers (two papers) approved by the GovernorGeneral under the Appropriation Act.
Correspondence relating to the appointment of Mr. B. Wallach as Examiner in Electricity, Patents Office.
Regulation under the Customs Act as to drawback on sugar, and provisional regulation under the Patents Act.
Copy of a . letter from the Right Honorable the Secretary of State for the Colonies to His Excellency the Governor-General, dated 23rd March, 1904, legarding the use of the title of “Honorable” by members of the first Parliament of the Commonwealth of Australia.
The Clerk laid on the table the following papers : -
Returns to orders of the Senate of 14th April as to rent payable by Commonwealth Departments, Melbourne, and as to parade states, reviews, Sydney.
– I beg to lay upon the table by command the following paper: -
Capital Sites. - Minute by the Right Honorable Sir John Forrest on the localities in the Tumut and Southern Monaro districts of New South Wales.
I move -
That the document be printed.
I submit this motion for the purpose of enabling me to make a statement on behalf of the Government. I wish, in the interests of both the Senate and myself to make that statement as brief as possible. It will be recollected that the Government were allowed a period of three weeks in which to formulate their policy. With the assistance of their officers and a little energy on their own part, they have succeeded in doing so. So far as the House of Representatives is concerned, the .first measure to be taken in hand there will be the Conciliation and Arbitration Bill. This will be taken up at the stage at which’ it was dropped on account of the resignation of the previous Government, but a considerable number of amendments have been circulated amongst the members of that House.- I do not think it is necessary to indicate the nature of all those amendments, but they have been ‘framed for the purpose of simplifying the working of the measure. For instance, the Bill, as it was originally drawn, provided that a permanent Board should be appointed. TJnder the amendments which have been drafted by the Government, a Judge of the Supreme Court will be appointed as chairman of the Board. If a dispute should arise, and both parties to the dispute should be agreeable, the Judge will have power to settle it. and consequently save an enormous amount of expense and trouble. If’ either party, should so desire associates or assessors will be appointed, one representing each party, to sit with the Judge. And if the Judge should consider that he is not in a position to give an intelligent decision, he can call for the appointment of these associates or assessors.
– Are the assessors to be appointed by the Government or elected bv the parties to the dispute? Senator MCGREGOR.- They will be elected by the parties to the dispute and formally appointed by the Executive; the necessary machinery for that purpose will be provided in the measure. Many minor amendments have been drafted for the purpose of simplifying its operation, and the Government believe that they will meet with the general approval of the members of another place. With respect to the Senate the first Bill that the Government have decided to ask leave to introduce, as honorable senators will have learned from the notice of motion I have given, is a Bill for ah Act’ for the selection of a site for the seat of government of the Commonwealth. This measure has been before the Senate on a previous occasion, and I am sure that when it is again submitted every honorable senator will have made himself acquainted with all the reports and other documents bearing on this important question. If any of the new .members of the Senate have not received copies of those reports the Government will give them every facility for informing themselves on the. subject.
– They will ‘get a van and two horses, I suppose?
– I do not think that honorable senators will be so anxious to go through the pile of literary matter available that the use of even a wheelbarrow will be required. Where they think that information is necessary, the Government intend to give them every facility to obtain it.
– Do the Government intend to name a site ?
– No; the Government intend, so far as this Bill is concerned, to follow the practice of their predecessors. The Bill will be circulated immediately among honorable senators, and when they come to discuss the question of its second reading they will have ample opportunities of signifying their approval or indicating their objections. The next Bill to be introduced into the Senate will be a Fraudulent Marks Bill. It was introduced here before under the title of the Merchandise Marks Bill, but the Government think that the other is a more appropriate title. I do not intend to discuss the provisions of any of these Bills to-day. I only wish to make a plain statement so that honorable senators’ may be prepared to deal with them when they are submitted. Besides the Bills I have mentioned, the Government- intend to introduce a Trade Marks Bill, a High Commissioner Bill, and a Papua Bill - old friends with which honorable senators are acquainted. We intend to introduce a Bill to amend the Post and Telegraph Act, and, so far as present appearances go, a Bill to provide for a survey of the proposed transcontinental railway to Western Australia. Senator Styles. - No, no. Senator McGREGOR.- The Government have decided to do so, and I hope that they will be in a position to keep their promise.
– What does the phrase “ present appearances “ mean ?
– The Government have also decided to introduce a Bill to amend the Electoral Act. It will contain provisions for curing many of the anomalies which have been referred to on various occasions by honorable senators.
– Do the Government intend to make voting compulsory ?
– To tell the honorable and learned senator all that is to be contained in each measure I have indicated it would take me a. week. I have already explained that I am only giving an outline of the measures which we propose to- submit. There may be other Bills which it may be thought advisable to bring before the present Parliament.
– Do the Government intend to bring a Divorce Bill before us?
– No; there is no one in the Senate who requires a - divorce; .they are all quite satisfied.
– The Opposition want an alliance though.
– There may be other Bills which it may be thought necessary to introduce. It is not absolutely essential that all the Bills I have mentioned should be introduced in the House of Representatives. If, in the immediate future, we should require work to do in addition to the Capital Sites Bill, as it has been called, and the Fraudulent Marks Bill, it will be quite possible to introduce some of the other Bills here. I also wish to make a statement with respect to our future policy, although I intend to leave the full announcement of it to the Prime Minister. But there are one or two matters which have already been before the Senate, and it is only fair that the Senate should be made aware of the attitude of the Government in regard to them. For instance, the Navigation Bill has already been discussed in this Chamber. A good deal of adverse opinion has been expressed concerning that measure. Honorable senators appear to differ to a material extent as to what a Bill of that character should provide for. The Government have come to the decision that the best thing they can do is to appoint a small Royal Commission to consider the question. I do not suppose that the Government will agree to appoint more than five members of that Commission, whose duty it will be to make inquiries, and to obtain evidence as to the conditions that exist at the present time, and as to what legislation would be in the best interests of every section of the community.’ The interests affected by a Navigation Bill are so diversified, there are so many parties to be considered in framing a measure of that description, that a great deal of information is required ; and the Government hope that the appointment of a Commission of this description will lead to the obtaining of that information. In the past, where a measure containing so many hundreds of clauses has been concerned, it has always: been recommended, and partially formulated, by a Royal Commission. That remark applies both to the old country and’ to New Zealand. The Bill that has already been before the Senate was unsatisfactory to almost everybody who dealt with it. It is for that reason that the Government wish to submit the question to a Royal Commission, and I think that they will have the approval of honorable mem- bers in taking that course. Legislation is also required in connexion with the Quarantine of the Commonwealth. We know that Quarantine is in a very unsatisfactory state at the present time. Even the people from the city of the beautiful harbor must ‘ realize that bubonic plague and many other diseases are encouraged - I might almost say propagated - by the unsatisfactory conditions that exist in that and similar places. The Government have entered into’ communication with the different States for the purpose of getting the Quarantine authorities in those States to come together. I refer to those who have the control and management of Quarantine operations in the different States. We desire that they shall hold a Conference, and make recommendations in respect to legislation in that direction. New South Wales has already signified her willingness to fall in with that suggestion, and we expect very shortly to get replies from the other States. Now, sir, I think I have very shortly, and as clearly as I possibly “could, stated the intentions of the Government with respect to their present policy, and as to those measures which the Senate has already discussed. Those who wish to know what the Government intend to do in the future have only to read the report of the pronouncement of the Prime Minister himself. They will then see the attitude which the Government assume with respect to future legislation. I have submitted my motion on the printing of the paper which I have laid before the Senate, so as to give other honorable senators who are inclined to do so an opportunity to discuss what I have put before the Senate. Therefore, I will satisfy myself by leaving the matter entirely in the hands of honorable senators.
– I beg to second the motion.
– We are indebted to the Vice-President of the Executive Council for the clear and concise statement which he has made as to the policy of the present Government. The most important, and, perhaps, the most interesting part of that policy is that which he has not told us, the part that he has said we shall learn to-morrow from the newspapers - that is, that which relates to ‘ the future intentions of the Government.
– Tell us . the future policy of the Opposition?
– The statement which we have had from the Vice-President of the Executive Council is particularly interesting to us in the Senate, as indicating the business that is likely to be brought before us during this session. The principal feature clearly is that, instead of having the Navigation Bill to discuss, we shall be mainly engaged, I presume, in considering the question of the Capital site.
– That is a very pleasant subject.
– I have no doubt that it will be a very pleasant subject to discuss when we get fairly into it, and I hope that the debate will be productive of more fruit than has hitherto been the case. With regard to the Navigation Bill, it will be remembered that at the commencement of the present session the Government brought forward the Conciliation and Arbitration Bill in the House of Representatives, and the Navigation Bill in this Chamber. It was recognised that both of those measures were pieces of first-class legislation, which would engage the attention of Parliament for a long time. Therefore, by taking those two Bills concurrently ‘ in the two Houses there was afforded matter for useful discussion in both branches of the Legislature. I am afraid that the question of the Capital site will not fill the place of “the Navigation Bill. The Navigation Bill was introduced because there was a feeling that it was very urgently demanded. It was represented as a measure that should be introduced without any delay. The . late Government were not able to bring it in at the end of last session, but they gave a ‘ promise - I think an absolute promise - that it should be brought forward at an early stage in the present Parliament, and that its consideration should be pushed on to a completion. They fulfilled that promise. They believed, and believe riow, that the passing of a navigation law for the Commonwealth is a matter of very great importance, if not of urgent necessity. I am not prepared to say at this moment that good may not come out of relegating that Bill to the deliberations of a Royal Commission. Perhaps it may. But the same thing might be said of sending almost any Bill of a similar character to a Royal Commission. It is admitted that a Royal Commission is proposed : for the purpose of getting information on the subject, which perhaps the Committee of the whole House in Parliament assembled would not be likely to get. But then, on the other hand, a considerable amount of delay has to be faced. If the Navigation Bill is sent to a Royal Commission I suppose there will be no member of this Chamber who will entertain any hope that the measure can be passed into law during the present session of Parliament. The proposed course, therefore, necessarily means delay. I apprehend that there will be very little business for this Chamber to go on with until such time as the Conciliation and Arbitration Bill, which is to be introduced in the House of Representatives, is transmitted to the Senate. I have no doubt that the amendments which are to be proposed in the other Chamber will at all events furnish a great deal of matter for discussion. Whether they will be improvements upon the Bill as it was introduced by the late Government I cannot say. It -is impossible for us to form any opinion from the very brief outline given to us by the VicePresident of the Executive Council. In regard to the other measures mentioned, I think that, with the exception of that relating to Quarantine, they are all measures which have already been promised in the Governor-General’s speech. Some of them, I think - indeed, I know - were nearly ready for introduction at the time the change ^ of Government took place. I have no objection whatever to the alteration of the title of the Merchandise Marks Act to “Fraudulent Marks Act,” so long as the Bill is the same as that with which I am somewhat familiar. As to Quarantine, I gather from the Vice-President of the Executive Council that a Bill is to be introduced, but that previous to its introduction there is to be a Conference of the authorities on the subject. Well, that will probably mean that the Bill will not be ready for discussion, at all events during this session. If there is to be a Conference, and the report of the Conference is to be considered and to -become the foundation for the Bill, we can hardly look to that measure as likely to afford material for us to proceed to work upon. However, I am not going to anticipate that there will not be work, and plenty of work, for the Senate to do. I think there will be ; “ and my hope is that the change of Government -which has taken place will. not have the effect of delaying the really necessary and useful legislation which up to the present time has been continuously introduced and passed into law ever since the Federation was established.
Senator MILLEN (New South Wales).There was one remark made by the Vice-President of the Executive Council in bis speech which afforded me some measure of surprise. It was his statement that a considerable amount of energy had been required on the part of the Government, to enable them to present their policy to Parliament to-day. I admit that until I learned the details of their policy I was surprised. I should have thought that there was no party which would, require less effort to put forward a policy than that now in possession of the ‘ Ministerial benches. We have for years past heard the programme of this party put forward and espoused in season and out of season, both in this House and on the platform. Its programme has been so placarded throughout Australia that it is astonishing to learn that this vast expenditure of energy was required in order to bring the policy of the party before Parliament. But when the Vice-President of the Executive CounCil came to unfold the details of the programme of the Government I found the explanation. This enormous expenditure ‘ of energy was evidently required, not in order to determine what to put before Parliament, but what to keep from it ; because the pronouncement of the Vice-President of the Executive Council was to the effect that the Government are not prepared to proceed with the programme which they have hitherto espoused and fought for. There is as much difference between their programme and their policy as between chalk and cheese. It shows that the sobering influence of office has been at work upon the members of the Ministry, and that their policy has been one of discretion, not of valour. The members of the Government are not -quite so advanced as they were three weeks ago. I wish to draw attention to this fact, so that the supporters of the Government, both inside and outside of Parliament, may know that there is a vast difference between the members of a party when occupying seats in opposition, and when they are called on to give legislative effect to their principles. There is one other matter to which’ I desire to direct attention. On one - I think on two - occasions, this Senate has affirmed the desirability of there being greater Ministerial representation in the Senate than has hitherto been accorded to it. I think I am correct in stating that when the principle was affirmed, both the Vice-President of the Executive Council and the Minister for Defence, as well as the members of the party which they lead, voted in favour of it. I think, therefore that I am justified in expressing the view - and I .believe I may do so on behalf of the Senate generally - that I have experienced a keen sense of disappointment that the Government have not observed the principle by giving practical effect to a -resolution, which they supported when the matter was brought before the Senate.
– By resolution.
– Yes, by resolution, affirming that the Senate was entitled to larger Ministerial representation than had hitherto been accorded to it.
– Does the honorable senator want us to jump the hurdle before we are sure of our seat in the saddle.
– All I ask the Government to do, is to give effect, when they are in office, to the principles which they supported when they were in opposition. The honorable senator knows that his party have no other opportunity of doing so, except at a time when a new Ministry is being created. I wish to say in regard to this point, that my remarks on the subject would have been made in the same spirit, and with the same emphasis, if any other Ministry had been formed, because I recognise that this is now the third occasion when the position has arisen; and every time a Cabinet is formed, and only two Ministers are appointed in the Senate, the tendency to limit us to that number is strengthened. I again express my extreme regret that this Ministry has not seized the opportunity which was within its grasp, of giving effect to a resolution which’ its own members supported.
Question resolved in the affirmative.
In Committee (Consideration of House of Representatives’ amendments) :
Clause 2 -
This Act shall apply to all Acts of the Parliament passed after the commencement of this Act.
House of Representatives’ Amendment. - Omit this clause.
– I move -
That the amendment be agreed to.
When this clause was reached in the discussion upon the Bill, it was considered to be very drastic, and objections were urged against its adoption. I think it was pointed out that although it might be quite proper to insert such clause in a Crimes Act, or even in a Customs Act, or any measure of that kind, yet in a Bill of this description, it was inappropriate. It is here provided that if by act or omission any one is concerned in the commission of an offence against any Act, he shall be liable : that is, a man may fail to do something about which he had never thought, and thus be made liable. What a person may do indirectly or innocently, will, 1 think, be recognised by every one; and I believe honorable senators will see the wisdom of agreeing with the amendment made in another place. I have great pleasure, on the first oc’casion on which Senator Higgs has taken his seat as Chairman of Committees, in complimenting him on the honour paid to him, and expressing the hope that he may have a very successful official career.
– I join with the Vice-President of the Executive Council in congratulating you, Mr. Chairman, on the attainment of your present posi-tion ; and I am quite sure, from what we have seen of you in the past, that you will perform the duties of your office in a dignified manner. I agree with the motion submitted, but, at the same time, I think that the Vice-President of the Executive Council was rather “out” in his remarks. The honorable senator seemed to think that because this clause appears in this patricular. Bill, it is intended to apply only under certain circumstances. But the clause re- lfers the commission of an offence under any Act, and, of course, it would apply in all cases where a criminal offence was created by any future Statute. This is an Acts .Interpretation Bill, which makes a general provision for offences under any Act - I have not the clause before me, and must speak from memory - and any person in the position of an accomplice would be held to be guilty of the offence. The object of putting this clause in an Acts Interpretation Bill is to prevent the necessity of enacting it every time we have before us a Bill by which criminal offences are created. When this Bill was before the Senate previously, I quoted from one or two of our present Statutes, in which an identical provision appears, and there will be nothing to prevent us in the future from passing such a clause in each case. But the object of placing the clause in an Acts Interpretation Bill is to prevent the necessity of enacting it in separate Bills, as they come before us - in order that certain things, which we- desire shall be uniform throughout our legislation., may be provided for in one Act, instead of in each separate Act. However, there is nothing to fight about in the matter, and if the other House does not want this clause. I am willing that it should be omitted. The only effect will be that when we have before us a Bill creating a criminal offence, we may, and probably shall, insert in that Bill an identical clause.
Senator McGREGOR (South Australia - Vice-President of the Executive Council). - I must thank Senator Drake for the very mild way in which he has criticised this amendment. I think, however, that honorable senators will admit that it is better to have a clause of this description in any Bill, from which drastic results may follow, than to have the provision in another measure, where it may not be seen by the individuals affected, and will afford no opportunity to those people of realizing the position in. which they place themselves. It is our duty, I think> to place this provision in the measures under which it will be really operative.
Motion agreed to.
Clause 11 -
But if either House of the Parliament passes a resolution at any time within fifteen sitting, days after such regulations have been laid before such House disallowing any regulation, such regulation shall thereupon cease to have effect.
House of Representatives’ Amendment - After “ resolution “ insert “ of which notice has been given.”
– I move -
That the amendment be agreed to.
I think it much better in a case of this kind that notice should be given, because, when that is done the object of the clause is fulfilled. When notice is given within fifteen days, that has the same effect as if the motion were submitted at the time. Members of another place, and gentlemen belonging to the legal profession, are of opinion that the best course is to accept this amendment, which is very simple, and will, in my opinion, improve the measure.
Motion agreed to.
Resolutions reported ; report adopted. STANDING ORDERS.
Senator McGREGOR (South AustraliaVicePresident of the Executive Council). - I move -
That the first report of the Standing Orders Committee be adopted.
There is no necessity, I think, for any debate on this report, the adoption of which will tend greatly to the harmonious conduct of the business of this Chamber, in view of the very kind assistance given by you, sir, to the Standing Orders Committee in the past. Under the. circumstances I simply move that the motion be adopted.
– This motion opens up a question which is perhaps bigger than the Vice-President of the Executive Council imagines. If the report be adopted it will enable the Senate to be continually altering the Standing Orders.
– The Senate may do so now.
– The motion will enable the Senate at any time to alter any of the Standing Orders which may “appear insufficient or manifestly inconvenient.” It will only be necessary to point out that a particular standing order is inconvenient in order to have it quietly altered, very possibly without any notice ; and that appears to me to be a very dangerous policy.
– Not if in the opinion of the majority of honorable senators there is good reason for the alteration.
– If the majority think that a standing order is inconvenient, would it not be better to have the question carefully considered by the Standing Orders Committee before the Senate is asked to express an. opinion?
– The Standing Orders Committee have considered the matter.
– The report states that the Committee have done so.
– The words used in the first resolution of the Standing Orders Committee are -
That in any case which may arise which has not been provided for by the rules, or in which the rules appear insufficient or manifestly inconvenient, the President should state to the Senate (after mature consideration, if possible) what, in his opinion, is the best procedure to adopt; . . .
It will be seen that the matter is not referred to the Standing Orders Committee. Our Standing Orders were, in the first place, framed by that Committee; in the second place, they were adopted by a Committee of the Senate; and, in the third place, they were accepted by the Senate itself. It is now proposed that, because on some particular occasion a standing order may appear inconvenient, there is to be power, on the spur of the moment, to vary that standing order.
– Why should the Senate not have that power”?
– We had better adopt a proper course. We made a mistake at the very start in regard to our Standing Orders. We ought to have adopted a standing order, which finds a place amongst those of every Parliament in Australia, to the effect that where we have not by our Standing Orders provided for a particular case, we should adopt the practice of the House of Commons.
– Why adopt the procedure of the House of Commons when we can make our own procedure?
– I know that the honorable senator does not like precedents - that he does not think the old ways are good ways. Senator Guthrie is not of opinion that the practice of centuries, adopted after mature consideration and deliberation by generations of legislators, is the practice that ought to be followed. Senator Findley. - We do not always follow our great grandfathers.
– Possibly not ; we may move in other directions, and make new, and, perhaps, better rules. At the same time, it appears to me that it would be advisable to refer such matters to the Standing Orders Committee in the first instance, in order that they may gather evidence and go into the questions very carefully. It will be noticed that within brackets there appear the words “ after consideration, if possible.” It is there provided that if consideration is not possible, or if we choose to say that consideration is not possible, for the time being, the question is to be given no consideration what- ever.
– Those words refer to the President only.
– The President is to give his ruling, and, if no objection be raised by the Senate, the procedure has to be according to that ruling “‘until altered by the Senate.” It may be that the Senate will have little or no opportunity of thoroughly going into the question at the time, and ascertaining whether the ruling laid down is wise. I rose principally to say, that it would be far better for us to adopt the course followed in Canada and in British Legislatures in other parts of the world, that where there is no provision to meet a particular case, the practice of’ the House of Commons shall be adopted.
– Senator Playford is somewhat late in the day in raising -the point as to our adopting the procedure of the House of Commons. If the honorable senator will cast his- mind back he will remember that there was a standing -order which embodied the suggestion he now makes, and that the standing order, after mature consideration by the Senate, was rejected. .
– In that we made a mistake.
– The’ Senate decided, and, I think, decided rightly, that under ‘our Standing Orders we ought to build up a practice of our own.
– Make our own procedure.
– Exactly. And all that the motion before us does is to give the President, as the official who has to make the precedents, an opportunity, in the first place, to do so.
– Under the control of the Senate.
– Of course. Honorable senators may remember the proceedings which led up to the recommendation of the Standing Orders Committee. There was a standing order which left the Presi-‘ dent no option but to call on the honorable senator who rose first.
– Whom the President saw first.
– I am not quoting the exact words, but simply stating their effect. We all know that there are parties in Parliament, and the standing . order left the President absolutely no freedom - he had to call on the senator who rose first, whether that senator was or was not the leader of a party. There are occasions - for instance, those on which a Ministerial statement is made - when it is advisable .to have statements from the various leaders of parties in the House, and it has been found convenient in the House of Commons
– In the House of Commons there is a similar standing order to that now referred to by the honorable senator.
Senator- PEARCE. - Excuse me; there is not a similar standing order. The standing order of the House of Commons is different in its wording from ours, the former providing that the Speaker shall call on the member who, “in his opinion,” rose first.
– That must be the member who did rise first.
– Not necessarily.
– Then the “opinion” of the Speaker must be a false one.
– Let me point out to the honorable senator that under the standing order the Speaker of the House of Commons can make up his mind that he will see a certain senator rise first, and no other. As a matter of fact, under the House of Commons procedure, that is what happens ; no matter who rises first, when a Ministerial statement has been made, the Speaker sees the leader of the Opposition, and no other.
– Does the honorable senator think that the Speaker is enabled to do so by reason of the words “ in his opinion “ ?
– I say that those words give the Speaker of the House of Commons that choice, whereas our standing order gives no such choice.
– Those words do not give the Speaker of the House of Commons the choice.
– That is only one illustration of the working of such a standing order; and the effect of the example has been seen in the Senate. The Standing Orders Committee were asked by the Senate to bring up a report dealing with the matter; and if we look at the resolution arrived at by the Standing Orders Committee we see that, so far as freedom of speech and the order of the debate are concerned, the rights of the Senate as a deliberative body are fully conserved. The first resolution ‘ of the Standing Orders Committee commences -
That in any case which may arise which has not been provided for by the rules- and there must be a good many cases not provided for by the rules - ~ or in which the rules appear insufficient or manifestly inconvenient, the President should state to the Senate (after mature consideration, if possible) what, in his opinion, is the best procedure to adopt.
That is to say, suppose some point arises not provided for in the rules, the President, not having the practice of the House of Commons to fall back on, may say - “ I am not prepared to say at present what is the best course, but to-morrow, or on some other day, I shall make a statement.” The President then considers what is the best practice to adopt, and, according to promise, makes a statement embodying his opinion.
– The President will generally adopt the practice of the House of Commons.
– He may or may not do so. At any rate, the recommendation of the Standing Orders Committee gives the President and the Senate the power to follow the House of Commons practice if it be the best, or if he thinks such practice is inconvenient, as not adapted to our Constitution, to create a practice for ourselves. In any case, the President comes forward with his proposal, and it is then for the Senate to say whether it shall be adopted. If any objection be felt to the ruling of the President, that objection can be stated; and the will of the Senate will make the practice of the Senate, because the resolution of the Standing Orders Committee goes on to say -
In the event of no objection being taken by the Senate, this shall be the procedure until altered by the Senate.
Surely there can be no objection to such a recommendation. In order that the practice therein laid down shall be followed - in other words, in order that we may have our own May, and a constitutional practice of our own - the second resolution of the Standing Orders Committee goesi on to say -
That at the commencement of each Session the President shall present to the Standing Orders Committee a paper formulating and tabulating all the decisions arrived at during the last Session, giving reasons (if it should be’ necessary to do so), why, in his opinion, any of his own decisions were incorrect, or any of the decisions of the Senate would lead to inconvenient results.
It will be observed that that resolution deals- not only with the practice or unwritten Standing Orders, but also with the interpretation of the Standing Orders. As the President has pointed, out to the Standing Orders Committee, there are many occasions, both in the Senate and in Committee, when most important questions are raised, as to the interpretation of the Standing Orders. These questions are raised on the spur of the moment, and, without taking any time for consideration, the President has to give his ruling. On mature consideration, however, after having looked over his ruling, and consulted authorities, the President may come to the conclusion that his decision is incorrect ; and the recommendation of the Standing Orders Committee, if adopted, will give an opportunity at the end of the session of making a correction, which, if deemed a proper one by the Committee, is recommended. In that manner we shall first of all build up our practice by the will of the Senate, and, secondly, settle the meaning of the Standing Orders as interpreted by the will of the Senate. I consider that the course recommended by the Standing Orders Committee will be in the best interests of debate here, and, seeing that we have finally rejected the practice of the House of Commons, that is the only safe way to adopt in building up our own practice, and the interpretation of our Standing Orders. I hope that the resolutions will be adopted by the Senate.
– If I thought that these resolutions -were intended to operate as a justification, or as a cover for an incident which is fresh in the memories of all of us, I should certainly oppose their adoption, but I am quite convinced that it was unnecessary for Senator Pearce to make any reference to that incident. _ I do not see in the resolutions any such intention as he has implied, but I cannot agree with Senator Playford. We decided, rightly or wrongly, that a- standing order, which incorporated the practice of the House of Commons, should not find a place in our code. . I happened to be in the minority in the division on that occasion; but I intend - and I trust that I always shall maintain that attitude - to respect the decision which was given by a majority of the Senate. I regard these resolutions as being an absolutely necessary corollary to that decision. I expressed at that time the hope that we should gradually form our own procedure. I certainly think that the resolutions are well and carefully worded, with one exception, which I shall mention. I think it is desirable that the President should state to the Senate, after mature consideration, if possible, what he thinks is the best thing to be done. With regard to Senator
Playford’s criticism about mature consideration, I would point out to him that the intention of this wording is obviously that if the President has time to give mature consideration he will of course do so, but if on the other hand no such time is allowed, and a statement by the President at once is necessary, then he will not hesitate to make that statement. The explanation seems. to me to be perfectly simple, but I do not quite follow the intention of these words in the last sentence of the first resolution - in the event of no objection being taken by the Senate.
I should like to hear what is meant by an objection ? We know that if one honorable senator objects in certain cases nothing can be done, but I presume that that is not the intention here.
– Oh, yes, it must be discussed then.
– It will not be fatal because one senator objects.
– These words are frequently used; but I take it that in this resolution they are not used with that meaning. I suppose what is meant is that unless the Senate, by a vote, objects to the procedure suggested by the President, it will be adopted.
– If the honorable and learned senator will read on, he will find that it is not an objection by a senator, but an objection by the Senate.
– Yes ; but my honorable friend will allow me to point out that the words “ objection by the Senate “ have occasionally a technical meaning. My contention is that the words are here intended to mean an objection insisted on by the Senate by a vote.
– That is the only way in which the Senate can object.
– Practically it is ; but I think that the intention might have been made a little clearer than it is. However, so long as we understand that that is exactly what is meant I have no objection. I join with Senator Pearce in saying that the sooner we begin to form our own procedure the better. The second resolution from the Standing Orders Committee meets with my hearty approval. In the interest of the conduct of business, it is very desirable that the President should, as often as possible, certainly at the commencement of each session, give to honorable senators such a paper as is therein described, so- that we may all be cognisant with the latest decisions respecting Standing Orders, and, in fact,- may have our code up to date. I intend to support the motion.
– I am rather surprised that there should be any objection to this motion on the ground urged by Senator Playford. This provision gives exactly the elasticity which he seemed to desire. He urged that in all, or nearly all, other British Parliaments, there is a provision that in cases ‘ not provided for the House shall have recourse to the rules of the House of Commons. That precedent, as I understand, was deliberately departed from, and for a reason I assume. The fact that the rules of the House of Commons have grown up through centuries is an extremely important consideration, but another extremely important consideration is that they have grown up in connexion with a Parliament which, in most of its attributes, is very dissimilar from this Parliament. Therefore it is desirable that there should grow up a code of rules, not made without experience, but arising out of experience. In order that that may be done, we must be left in the initial stage with comparatively few standing orders. As the intricacies of parliamentary work are very great, cases will necessarily arise which our infant Standing Orders will not meet, and this provision will empower the President - who, of course, will always be a gentleman of considerable parliamentary knowledge and experience - to at once suggest such an expedient as mav seem to him wise,, taking his suggestion from whatever information may be at his disposal, and the rules of the House of Commons will always be at his disposal. So that in this provision we shall have the power to do that which Senator Playford suggests should always be done, but with which I do not quite agree. I do not think it should necessarily be always done, because it might quite easily happen that there were no rules of the House of Commons that would meet the contingencies which might present themselves to us. It might happen, and I think frequently would happen, that there ‘ were . many provisions in the Standing ‘ Orders of the House of Commons which would be found expedient for us to use from time to time; but, if not, we should not be bound - and this is the important point, I think - by rules that have grown up with an institution which, in so many respects, is dis,similar from ours.
– The resolutions of the Standing Orders Committee seem to me to be clear and unobjectionable. We have adopted a certain code of rules for the transaction of our business. I take it, sir, that if a question should arise which is governed by our present Standing Orders, you will rule accordingly, and that if a ‘question should arise which is not governed by our present Standing Orders, you will give your ruling - after mature consideration if possible - and that, if it is not dissented from by the Senate) it will become a precedent. Afterwards, on any similar occasion, you will rule in the same way, and your ruling will become part of the unwritten rules to govern our deliberations.
Question resolved in the affirmative.
Judgments of High Court. Motion (by Senator McGregor) proposed - That the Senate do now adjourn. Senator DRAKE (Queensland). - I wish to say a few words about a question which I have given notice’ of, in order to explain to the Vice-President of the Executive Council what I desire to obtain. In my question I am asking, on behalf of members of Parliament generally, for the production of. copies of the judgments of the High Court in the cases of D’Emden v. Pedder and the Municipal Council of Sydney v. the Commonwealth. These decisions have ain important bearing on the interpretation of the Constitution, and I think it is desirable that all members of this Parliament shall be furnished with the text of the judgments. Almost the last thing I did before leaving office was to give an instruction to obtain verbatim copies of the judgments. Whether theyhave been obtained yet or not I do not know, but I am asking the Government - and I hope that they will be able to give me a favorable answer - if, when the judgments are received, and now if they have been received, they will have them printed and circulated amongst members of both Houses.
– I shall see that the matter is laid before the Attorney-General, and do everything 1 can to comply with the request of the honorable and learned senator.
Question ‘ resolved in the affirmative. Senate adjourned at 3.41 p.m.
Cite as: Australia, Senate, Debates, 18 May 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040518_senate_2_19/>.