Senate
4 August 1905

2nd Parliament · 2nd Session

  1. Senate
  2. 2nd Parliament
  3. 1905

The President took the chair at 10.30. a.m., and read prayers.

page 610

PERSONAL EXPLANATION

Senator PULSFORD:
NEW SOUTH WALES

– As a matter of personal explanation, I wish, by leave, to say that yesterday afternoon, in the course of my reply on the subject of the valuation of harvesters, 1 used, in reference to Dr. Wollaston, these words -

Honorable members who have gone through the departmental papers cannot fail to see that those from the hands of Dr. Wollaston have been written under great pressure;

It appears that in certain quarters it was thought that I insinuated political pressure, and Senator Trenwith -interjected “ Political pressure from whom.” ? That interjection, I understand, was prompted by Sir William Lyne, who was sitting in the box behind the honorable senator, and, unfortunately, I did not hear it. I should like to read what I said afterwards - and it is impossible for a man to be Comptroller of Customs with a Tariff such as we possess and not to have the greatest demand made upon his time and thought. I am certain that if any man in Australia is sick of thevery name of harvester itis Dr. Wollaston.

I think I made it quite clear that I was referring to the pressure of work, and not to political pressure.

page 611

SOUTH AFRICAN PROMOTIONS:

page 611

QUESTION

LIEUT.-COL. CLARKE

Senator STANIFORTH SMITH:
WESTERN AUSTRALIA

asked the Minister of Defence, upon notice -

  1. Were there any reasons for refusing HonoraryLieut.-Col. Clarke brevet rank other than the one mentioned by the Minister on Friday, 28th July, viz. : -That he did not return to Australia before the date of the Cabinet decision of 26th April, 1902?
  2. If he had returned before that date would he have been entitled to brevet rank?
Senator PLAYFORD:
Minister for Defence · SOUTH AUSTRALIA · Protectionist

– The answers to the honorable senator’s questions are as follow : -

  1. The only reason for not granting the rank of Brevet Lieut.-Colonel to Major and Honorary Lieut.-Col. L. F. Clarke, D.S.O., V.D., was the fact that the Cabinet decision of the 8th July, 1901, was amended prior to his return toAustralia.

  2. (a) Under the Cabinet decision of 8th July,1901, Major and Honorary Lieut.-Col. L. F. Clarke could have been permitted to retain the rank of Lieut.-Colonel as brevet rank in the Commonwealth Military Forces had he returned to Australia prior to the amendment of such decision by the Cabinet.

    1. It may, however, be stated that the officers who served with Australian Contingents in South Africa numbered 848, of whom -

Of the 240 officers who served in South Africa in a rank higher than that which they held in the Military Forces of Australia,180 were promoted, and, with few exceptions, had returned to Australia prior to 30th April, 1902, the date of the amendment by the Cabinet of their decision of 8th July,1901.

  1. If the Cabinet decision of 8th July, 1901, had been fullyacted upon, the whole of these 180 officers would have been permitted to retain theirhigher rank as brevet rank, in the Commonwealth Military Forces, but it is found, on inquiry, that it was only acted upon in 29 cases, the Cabinet decision apparently having been held in abeyance in the remaining cases, pending the result of correspondence which finally ended in the Cabinet, on the recommendation of the General Officer Commanding (Major-General Sir E. T. H. Hutton), substituting the word “ Honorary “ for “ Brevet “ in their Minute of 8th July, 1901.
Senator STANIFORTH SMITH:

– I think that the Minister did not answer the second question?

Senator PLAYFORD:

– Necessarily, Lieut. -Col. Clarke would not be entitled to brevet rank, because out of 180 officers who returned before that date, only twenty-nine got it. Evidently, in respect to a number who had returned before that date, the matter was held over until a further Cabinet decision was arrived at, and when it was arrived at they did not get brevet rank. Lieut.-Col. Clarke would not necessarily have got brevet rank if he had returned earlier.

page 611

QUESTION

NOTICE OF QUESTIONS

Senator PLAYFORD:
Protectionist

– In asking that fresh notice should be given of the questions in the names of Senator Symon and Senator Millen, I would point out to honorable senators that when on a Thursday notice is given of questions for Friday, it is very difficult to get the answers from the Departments before the Senate meets at half-past 10 o’clock next day. It would be much better if honorable senators on a Thursday would give notice of their questions for some day in the following week.

page 611

PAPERS

Senator KEATING laid upon the table the following papers : -

Papers relating to the residence of the GovernorGeneral in New South Wales.

Report of Captain Buckley upon the removal of the rifle range at Sandy Bay, near Hobart.

Ordered to be printed.

The Clerk laid upon the table:

Return to Order of the Senate of 3rd August, 1905. - Evidence before the Select Committee on the tobacco industry, 1904.

page 611

LEAVE OF ABSENCE

Motion (by Senator Pearce) agreed to -

That one week’s leave of absence be granted to Senator Higgs, on account of urgent private business.

page 612

SUSPENSIONS OF SITTING

Motion (by Senator Playford) agreed to-

That during the present session, unless otherwise ordered, the sittings of the Senate or of a Committee of the whole Senate on sitting days other than Fridays be suspended from 6.30 p.m. to 7.45 p.m., and on Fridays from 1 p.m. to 2 p.m.

page 612

WIRELESS TELEGRAPHY BILL

Second Reading

Debate resumed from 2nd August (vide page 466), on motion by Senator Keating -

That the Bill be now read a second time.

Senator PULSFORD:
New South Wales

– This is a necessary Bill. The growth of wireless telegraphy is already very considerable, and promises to be much greater. It is desirable, therefore, that the Post and Telegraph Department should be prepared to deal with it. I observe that, according to the English Act, in the old country it is considered a matter not only for the Post and Telegraph Department but also for the Defence Department, in which certain powers are vested. I think it is desirable to make some amendments in the Bill in that direction. Clause 3 reads -

This Act shall not apply to ships belonging to the King’s Navy.

I suggest that the clause might be amended so as to provide that the Act shall not apply to “ the Naval and Military Forces.” In clause 4 I think it is desirable to insert the following proviso, which is taken from the English Act : -

Provided that nothing in this Act shall prevent any person from making or using electricalapparatus for actuating machinery, or for any purpose other than the transmission of messages.

That seems a very simple and necessary provision. In sub-clause 1 of clause 6 there is provided an immense penalty - £500 - which is repeated in the next subclause. The English Act fixes the penalty at£100, and also provides an additional penalty of imprisonment, whichmay be inflicted with a fine. I shall propose, therefore, that we reduce the penalty from£500 to£200, and add these words - “ With or without hard labour, for a term not exceeding twelve months.” Clause 8, as it stands does not seem to be quite sufficient. The search warrant may be granted to any person. I shall propose that the clause be brought into line with the provision in the English Act by substituting these words -

A search warrant may be granted to any police officer, . or any officer appointed on their behalf by the Postmaster-General or the Minister for Defence, and named in the warrant.

I shall also propose that the following new clause be inserted : -

No proceedings shall be taken against any person under this Act except by order of the PostmasterGeneral or the Minister for Defence.

The amendments are of the simplest character. They conflict in no way with the principle of the measure, but assist in carrying it out and safeguarding the work of the Departments.They also give some power to the Minister of Defence as well as to the Postmaster-General. Under the English Act power is possessed by the Postmaster-General, the Admiralty, the Army Council, and the Board of Trade. In our measure I imagine that it will be sufficient to name the Postmaster-General and the Minister of Defence.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 agreed to.

Clause 2 -

In this Act, “ Australia “ includes the territorial waters of the Commonwealth.

Senator PEARCE:
Western Australia

– It is doubtful whether Papua is included in the definition, therefore I move -

That after the word “ Commonwealth,” line 2, the words and the territory of Papua “be inserted.

The Acts Interpretation Act defines “Australia” as including the whole Commonwealth; and the Constitution defines “Commonwealth” as meaning “The Commonwealth of Australia as established under this Act.” The Commonwealth consists of six States exclusive of the territory of Papua; and the same dangers that would arise out of any abuse of this power in the States would arise in the case of Papua. Senator McGregor has suggested to me that an even wider term might be inserted, by saying, “ and any territory whatever.”I have not had much time to give consideration to the point, but I think it would be wise to include all our existing territory.

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– I think the honorable senator’s suggestion is a worthy one, which should be accepted. The Bill, of course, only provides for a system of wireless telegraphy in Australia. The exclusive use of wireless telegraphv within the Commonwealth is to be under the control of the Postmaster-General. The same reason that would apply to the six States applies with equal force to the territory of Papua. Therefore, I shall accept the amendment.

Senator MILLEN (New South Wales).Senator Pearce indicated a suggestion which came from Senator McGregor, and which seems to be better than that contained in the amendment. It is true that, to-day, the Commonwealth is only vested with the control of one piece of outside territory ; but one can hardly say what the coming years may bring forth. There are infinite possibilities of greater responsibilities being placed upon the Commonwealth, and we should provide for them. Senator McGregor has suggested the insertion of the words “ and any territory thereof.” That would cover not only the immediate necessities with regard to Papua, but also any other territory that might pass under the control of the Commonwealth. It is, for instance, quite conceivable that one or two islands, which are at present directly under the administration of New South Wales, might at some time pass under the control of the Commonwealth. I might mention Lord Howe Island, as an example. Certainly, the insertion of the word Papua would not cover that case, whereas I should think the term “ territory of the Commonwealth “ would do so. I, therefore, suggest the advisableness of accepting Senator McGregor’s suggestion.

Senator PEARCE (Western Australia). - I ask leave to withdraw my amendment with a view to substitute the words “ and any territory of the Commonwealth.”

Amendment, by leave, withdrawn.

Amendment (by Senator Pearce) proposed -

That alter the word “ Commonwealth “ the words “ and any territory of the Commonwealth “ be inserted.

Senator KEATING:

– I agree that itwouldbe desirable not to restrict ourselves to present conditions, but to provide in the Bill for apy possible future extension of the Commonwealth by acquisition of new territory. The only point that occurs to me is in reference to the exact words to be used. Section 122 of the Constitution provides that -

The Parliament may make laws for the government of any territory, surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth.

I think that the words proposed by Senator Pearce will meet all the possible cases, and therefore I have no objection to the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 3 - .

This Act shall not apply to ships belonging to the King’s Navy.

Senator PULSFORD:
New South Wales

– I move -

That the words “ ships belonging to the King’s Navy “ be left out with a view 10 insert in lieu thereof the words,” the Naval and Military Forces.” 1 am not sure that a clause of this nature is necessary. There is nothing of the sort in the English Act. But, if it is thought to be necesary, it should be made to include anything done by the Military and Naval Forces, which embrace the Naval Squadron of His Majesty.

Senator KEATING:
Protectionist

– I cannot say that I am in a similar position with regard to this amendment as I was with regard to the last. It has not been printed and circulated. A copy of it was left with the secretary for Ministers in the Senate this morning, and from that copy another copy has been typed and just now put into my hands. But it is obvious that when honorable senators wish to more amendments in a measure of this character, sufficient notice ought to be given to enable whoever is in charge of the Bill to ascertain from those who are familiar with the working of the departments concerned, and from the experts, whether or not it is desirable that such amendments should be carried.

Senator Millen:

– That pre-supposes that a senator has had a sufficient time beforehand to studv the Bill.

Senator KEATING:

– This Bill was circulated some days ago.

Senator Millen:

– But every one has not time immediately a Bill is circulated to study it.

Senator KEATING:

– Surely, if an honorable senator had not sufficient time, the Minister has less time to study these amendments.

Senator Millen:

– The Minister has the opportunity to postpone the clause.

Senator KEATING:

– I do not think it is desirable to delay the Bill. I have consulted the Postmaster-General with regard to the amendment since it has been put into my hands, and I should have liked to consult the permanent head of the Department. But apart from that, I wish to point out that there is not always an equally good reason in Australia for the insertion of provisions in measures that there may be in England. Most of the amendments which Senator Pulsford has indicated in his second-reading speech, are based, to a large extent, upon the desire to bring this Bill into line with the terms of the English Act. In England, there are several authorities such as the Board of Trade, and the Admiralty, in connexion with the peace, order, and good government of the country, that are equally affected by these instrumentalities. In Australia, all the matters in connexion with postal and telegraphic affairs are in the hands of one Department. I have not the slightest doubt that the naval and military authorities of the Commonwealth would be able to use any system of wireless telegraphy under this Bill whenever it was necessary ; because clause 5 makes it clear that -

Licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy may be granted by the PostmasterGeneral for such terms and on such conditions, and on payment of such fees as are prescribed.

Senator Millen:

– Does that apply to other departments of the Commonwealth?

Senator KEATING:

– The regulations will be framed by the Postmaster-General’s Department, and no doubt special provision could, if necessary, be made for licences to be issued to any Government Department or any person who may be acting on behalf of the naval and military authorities for the use of wireless telegraphy. If the naval and military forces wished to use the system the Postmaster-General would be able to permit them to do so. The measure as it stands is ample for the purpose which Senator Pulsford has in view.

Senator DE LARGIE:
Western Australia

– I cannot understand the object of Senator Pulsford’s amendment. We have a squadron of the King’s Navy in Australian waters at present, and we are hoping at some time or other to have .a navy directly under the control of the Federal Government. We certainly have military forces at present. If there is any advantage to be derived from the use of wireless telegraphy, why should we tie our hands by restricting its use? The common-sense course to adopt is to make this Bill as wide as possible.

Senator Pulsford:

– My amendment gives power ; it does not take it away.

Senator Millen:

– The honorable senator said he could not understand the amendment.

Senator DE LARGIE:

– I am not applying to Senator Millen for advice, and he had better keep it to himself. I understood Senator Pulsford to propose that the Defence Forces should be exempt in regard to the use of the wireless telegraphy system. If I have misunderstood his object, he will be able to explain it more clearly. But I hold that it would be a mistake to tie our hands in regard to extending the use of a system of this kind.

Senator MILLEN:
New South Wales

– The remarks of the Minister seem te* emphasize the desirableness of the amendment. Senator Keating recognises that it is extremely probable the Military Forces will deem it desirable to use some such system, and that they should be enabled to do so under the most liberal conditions. But the Minister pointed out that the Military Forces could do so by applying to the Post and Telegraph Department for its licence, for which the Bill provides. If the Minister recognises the necessity for the Military Forces being placed in the freest possible position in regard to this invention, the question arises whether it isnot better for us to state in the Bill that they have the right, than to leave it to the Postmaster-General to frame conditions which may or may not be harassing.

Senator Turley:

– Why should the Military Forces be exempt from the provisionsof the law?

Senator MILLEN:

– I propose only toexempt that portion of our great Public Service which I think requires a measure of exemption, namely, the Military Forces.. “Clause 5, to which the Minister directs attention, empowers the Postmaster-General’ to issue licences to “ establish, erect, maintain, or use stations and appliances.” If,, at any time, our forces were on active service, the question of obtaining a licence would not occur to any officer worth his salt; he would direct the use of wireless telegraphy, without a licence.

Senator Keating:

– An officer could do that legally, whether this Bill be passed or not.

Senator MILLEN:

– There is no doubt an officer would do so, licence or no licence, but there might be a technical flaw in his action - the licence might not cover the particular act he proposed to perform.

Senator Keating:

– If this amendment be inserted, there might be a technical flaw.

Senator MILLEN:

– But if we take away from the Post and Telegraph Department the right to control an officer’s actions, that officer is, of course, free to do as he likes. The Senate has always shown a little suspicion of leaving large powers in the hands of Ministers. I do not wish to refer to the many occasions on which that point has been discussed, but more than once a protest has been made here against placing undue power in the hands of a Minister, allowing him to do by regulation what should be the work of the legislative body. Senator Keating nas not pointed out any objection to allowing the Military Forces the right to use those instruments and appliances, but merely says that the Bill as it stands now enables them to do so. That, however, will be under certain conditions absolutely in the hands of the PostmasterGeneral. With the knowledge we have of parliamentary procedure - of regulations which are framed, and of the annoyance and irritation frequently caused by the unworkable character of regulations - we see that it would be better to; state clearlv and simply in the Bill that the Military Forces - which are not likely to abuse the system - shallbe free to use it whenever they please..

Senator KEATING:

– As I said before, the amendment has reached us so recently that it is rather difficult for honorable senators to appreciate its full significance; I quite agree with Senator Millen that in cases of emergency a military or naval officer would, without asking for any leave from the Postmaster-General, probably erect and maintain such stations and appliances as might be necessary for transmitting and receiving messages by wireless telegraphy ; and an officer would I think have that power under the Bill as it stands.

Senator Millen:

– Subject to the PostmasterGeneral’s permission.

Senator KEATING:

– No; an officer could exercise that power if he were acting as the representative of the Crown. Under ordinary circumstances a Bill does not bind the Crown ; and if we insert the amendment, the question at once is raised, What are the Naval and Military Forces? If there be no definition in the Bill, we at once extent to a particular Department of the Crown, or profess to extend, a certain exemption, and then arises a number of other complicated questions.

Senator Millen:

– Do I understand the Minister to say that without any express provision in the Bill the Naval and Military Forces are exempt as the King’s forces ?

Senator KEATING:

– If officers are acting as representatives of the Crown, they are I. think exempt. As I have said, under ordinary circumstances a Bill does not bind the Crown in the discharge of its ordinary functions in the Commonwealth. It might be desirable that the Crown, in some other Department, should be in a position to use a system’ of wireless telegraphy without reference to the Department of the PostmasterGeneral, but if we adopt the amendment, the question arises whether, having exempted one particular Department, we do not impliedly make, or attempt to make, this Bill bind other Departments of the Crown. Reference is made in the Bill to the King’s Navy. The King’s ships of war, when in the Commonwealth or anywhere else, are the ships of war of the Crown ; but, as honorable senators know, a distinction is drawn by constitutional lawyers between the Crown in its Imperial functions and the Crown as the Crown in the Commonwealth acting under the provisions of the Commonwealth Constitution, and the Constitutions of the different States. The words “ This Act shall not apply to ships belonging to the King’s Navy,” were put in to show expressly that there was no intention to in any way interfere with the ships of the Navv.

Senator Millen:

– Might it not be taken that by specifically excluding the Naval Forces we specifically include other forces ?

Senator KEATING:

– I think not. The ordinary construction of a Bill is that unless the Crown is specifically, named the Crown is not bound..

Senator Millen:

-Then the clause is not necessarv absolutely.

Senator KEATING:

– It may not be necessary.

Senator Pulsford:

– That is what I say.

Senator KEATING:

– But I think it as well to have a clause expressly stating that we do not in any way attempt to interfere with ships of the Navy which may, as they nearly all do, have a system of wireless telegraphy on board when they come into our ports. If we start to exempt, or purport to exempt, certain departments of the Crown, we at once raise the question whether we are not exempting those alone and leaving other departments bound.

Senator PULSFORD (New South Wales). - I cannot help recognising that I have done myself some little injustice by the late notice I was able to give the Minister of this amendment. The Minister, coming in contact with an amendment which he has not studied, must naturally be on the defensive, whereas had he had time to examine it in all its bearings, he would probably have raised no objection. It is singular that my amendment proposes to carryout the very object which Senator de Largie desires, though the honorable senator thought that I was antagonistic to the idea. I should be quite willing to see the clause eliminated, but if we say that the Bill shall not apply to ships of war, I ask that we should make it equally clear that it does not apply to the MilitaryForces. Wireless telegraph is an entirely new departure, and it is now part and parcel of the equipment of our Military and Naval Forces. I propose, by the amendment, that the Minister of Defence shall have power more or less equal with that granted to his colleague, the Postmaster-General.

Senator Keating:

– /The Minister of Defence has that power already.

Senator PULSFORD:

– I admit ihat in this clause there are a number of considerations of a delicate character. If Senator Keating hesitates to accept the amendment, I am willing to postpone or withdraw it on the understanding that the point will be considered and dealt with afterwards, if necessary, here or in another place. I think, however, that there is reason at the root of my amendment.

Senator KEATING:

– The very same arguments which Senator Pulsford adduces as to the desirableness of having the Naval and Military Forces exempted from the principle that wireless telegraphy should be the exclusive monopoly of the PostmasterGeneral, would apply with equal force, if there was any necessity for such a provi sion, to the Act to which this Bill is intended to be a supplement, namely, the Post and Telegraph Act. In that Act there is no such provision, and honorable senators must know that in cases of emergency the Military and Naval Forces would have no hesitation in using the telegraphs of the Commonwealth. Why should we in a supplementary measure make a special provision which might throw some doubts on the position in regard to the main Act ? It may be said that in the Post and Telegraph Act there is no provision as to the King’s Navy. But wireless telegraphy applies in a very different way in the case of ships, from that in which it applies to ordinary land telegraphy. I ask honorable senators to pass the clause as it stands.

SenatorTurley. - Does the term “ Military Forces “ cover volunteers and all other branches of the defence organization?

Senator KEATING:

– That is a question which would be raised at once if the amendment were inserted.

Senator Millen:

– Under the Defence Act, “ Military Forces “ covers all branches of the defences..

Senator KEATING:

– We are not saying what the “ Naval and Military Forces “ are for the purposes of this Bill.

Senator Millen:

– The term is defined, as I have said, in the Defence Act.

Senator KEATING:

– But that is for the purpose of that Act alone.

Senator FRASER:
Victoria

– I cannot see what harm the amendment can do, or why any objection should be raised to it.

Senator Keating:

– If the honorable senator had been here he would have heard the arguments against the amendment.

Senator FRASER:

– That may be so. Senator Millen has explained to me in a few words what has transpired, and if the Bill is to apply to the Navy, ought it not also to apply to the Military Forces? I can picture to myself cases where the PostmasterGeneral might be absent.

Senator Keating:

– The Military Forces are exempt already.

Senator Millen:

– No; they are brought under the control of the regulations.

Senator Keating:

– No.

Senator FRASER:

– Has the Minister explained that the Military Forces are absolutely exempt by the Defence Act?

Senator Keating:

– Not by the Defence Act, but by the ordinary operation of law.

Senator Millen:

– If the MilitaryForces are already exempt, there isno harm in stating so in the Bill.

Senator FRASER:

– That is so. If the amendment can do no harm, we shall be acting on safe lines in adopting it. I can imagine the Postmaster-General either being absent or being very cantankerous, as Ministers of the Crown sometimes are. Human nature is not always shaped on very sublime lines:

Senator de Largie:

– Hear, hear !

Senator FRASER:

-The honorable senator evidently realizes the truth of that statement. I ask the Minister not to oppose the insertion of two or three words that cannot possibly do harm.

Senator KEATING:

– Senator Fraser has entered the chamber so recently that I am compelled to point out to him, what I have already pointed out to other honorable senators, that, in ordinary conditions, an Act does not bind the Crown unless the Crown is specifically mentioned.

Senator Fraser:

– The King’s Navy is specifically mentioned.

Senator KEATING:

– I have also pointed out why the King’s Navy is mentioned. The intention is to make it abundantly certain that there is no attempt in Commonwealth legislation to interfere in any way with the King’s Navy. As I have said, the clause might go out altogether.

Senator Millen:

– Will the honorable and learned senator agree to have it struck out?

Senator KEATING:

– No, I see no necessity for that. I point out to Senator Fraser, also, that in the Post and Telegraph Act, to which this Bill is a supplement, there is no provision purporting to exempt the Naval and Military Forces, and to insert the proposed provision in this Bill would only cast doubt on the intention of Parliament with regard to other Departments of the Crown, and upon the construction to be put on the Post and Telegraph Act.

Senator FRASER (Victoria).- The other Departments of the Crown are not in a national sense as important as are the Naval and Military Departments. The provision on this subject should be explicit. I presume that what Senator Keating has said is quite correct, but I should prefer in such matters to err on the safe side.

Senator PULSFORD (New South Wales). - I am quite of the opinion, which the Minister apparently also holds, that clause 3 is unnecessary. I should be content if it were eliminated. I see that there are some points for consideration in connexion with the amendment I proposed, and, provided that the Minister in charge of the Bill will undertake to give the whole subject consideration, that it may be dealt with later on, if that should be found to be necessary, I am willing to withdraw my amendment for the present.

Senator Keating:

– Very well.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 4 -

The Postmaster-General shall have the exclusive privilege of establishing, erecting, maintaining, and using stations and appliances for the purpose of -

transmitting messages by wireless telegraphy within Australia, and receiving messages so transmitted, and

transmitting messages by wireless telegraphy from Australia to any place or ship outside Australia, and

receiving in Australia messages transmitted by wireless telegraphy from any place or ship outside Australia.

Senator PULSFORD:
New South Wales

– I propose to add a proviso to this clause, which will be found to be an exact copy of a provision appearing in subsection 7 of section 2 of the English Act. I move -

That the following words be added : - “ Provided that nothing in this Act shall prevent any person from making or using electrical apparatus for actuating machinery, or for any purpose other than the transmission of messages.”

Senator KEATING:
Protectionist

– Personally I do not see any harm in the proposed proviso, but in my opinion it would be merely surplusage if inserted. There is nothing in the clause as it stands which would, in my opinion, in any way suggest that the Postmaster-General reserves to himself the right of erecting electrical apparatus for any purpose other than the transmission and reception of messages. The addition of the proviso suggested would make it doubtful whether the Postmaster- General would have the exclusive powers which paragraph c of the clause purports to confer upon him, since it might make it competent for any person to erect electrical apparatus for the reception of messages. There is nothing in the clause as it stands to suggest that any person who established and erected electrical apparatus for actuating machinery would contravene the provisions of the Bill. The proviso would only add to the length of the Bill, and would not make clause 4 any clearer than it already is.

Senator PULSFORD (New South Wales). - I think I must press the amendment. The powers given to the Department under this Bill are very great. I direct the attention of honorable senators to clause 9, under which it is provided -

The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient -

The power of . government by regulation given by that clause is simply immense. In common with other honorable senators, I have seen enough of what has happened when unlimited powers have been given to Departments, to make me feel that it is desirable that, as far as possible, Parliament should legislate for itself, and should not leave things to be arranged by regulation, or as prescribed by the Minister for the time being. In the circumstances, I urge that the amendment be accepted, in order that it may be made quite clear that any person putting up electrical apparatus which is not intended to infringe any of the privileges of the Postmaster-General under the Bill, will not be interfered with. The wording of the proviso is taken from the English Act. I have not invented it. I see no reason why the amendment should not be accepted, and there are many reasons why it is desirable that such a proviso should be added to the clause.

Senator KEATING:

– I think it is clear that there is nothing in the clause which would bring any person erecting machinery of the character referred to in the proviso, and having no object of transmitting or receiving messages, within its provision.

Senator Fraser:

– Not unless there were regulations contrary to the provisions of the Bill, which is quite possible.

Senator KEATING:

– The regulations must not be inconsistent with the Bill, and they have to be submitted to Parliament. In inserting the proposed proviso, there is a danger which I did not foresee when speaking before, and that is that, to a certain extent, the insertion of such a proviso might possibly invite persons to commit a breach of the main provision of the Bill. With an extended coastline such as we have in Australia it is possible that some person on the coast might erect electrical apparatus tobe used in some way for the receipt and transmission of messages in connexion with his own works.

Senator Millen:

– He could do that without the proviso.

Senator KEATING:

– He could ; but the insertion of the proviso would offer an invitation to persons to do that.

Senator Millen:

– The honorable and learned senator knows the natural desire of every departmental officer to secure for his Department as much power as he can.

Senator KEATING:

– The power is defined in the Bill itself. The only possible extension of that power would , be by regulations inconsistent with the Bill. I donot think it is for us to anticipate that regulations will be framed which will be inconsistent with the Bill. When they are framed, they must be submitted in the ordinary course ‘to Parliament. Honorable senators are assuming that they will be inconsistent with the Bill; that, consequently, a wrong will be done bv the Department in the first instance ; and, further, that we shall be blind to it when the regulations are brought under our notice. The words of the proviso would be merely surplusage, and would possibly amount to an invitation of the kind I mentioned just now.

Senator PULSFORD (New South Wales). - I feel that the insertion of the proviso is necessary to guard against possible dangers, and I therefore press the amendment.

Amendment negatived.

Clause agreed to.

Clause5 agreed to.

Clause 6 -

  1. Except as authorized by or under this Act, no person shall -

    1. establish, erect, maintain, or use any station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy ; or
    2. transmit or receive messages by wireless- telegraphy.

Penalty : Five hundred pounds.

Senator PULSFORD:
New South Wales

– Honorable senators will see that the penalty provided in this clause is; £500. I think it is too high. The English Act fixes the minimum penalty at £100, but it does something more, which this Bill’ does not do. It gives a power of imprisonment. Whilst a fine of£500 might not be a deterrent to some men, imprisonment would.

Senator Turley:

– We might leave out the fine, and substitute imprisonment.

Senator PULSFORD:

– Following English lines, we might improve this measure by reducing the fine proposed, not to the English minimum of £100, but to ^200, and by adding the words “ with or without hard labour, for a term not exceeding twelve months.” I shall propose those amendments. I move -

That the word “ five,” line g, be left out, with a view to insert in lieu thereof the word “ two.”

Senator KEATING:
Protectionist

– Under this provision, it would be competent for a Court to impose a penalty as high as ^500, or as low as is. In other measures we have prescribed penalties as high as ^500. For instance, .in the case of illicit distillation, a penalty of ^500 is prescribed. So far as the community is concerned, the illicit use of wireless telegraphy might be a far greater offence than illicit distillation could possibly be.

Senator Millen:

– Speaking from memory, I do not think that the penalty for a similar offence in regard to ordinary telegraphy is anything like ,£500.

Senator KEATING:

– Internal telegraphy could, never be used with such danger to the whole community as could wireless telegraphy. A ^single wireless telegraphy station on the north coast of Australia might do incalculable harm to the whole community. Iti would enable persons within the community, whether our own kith and kin or strangers, to communicate with persons outside who might be threatening our national existence.

Senator Millen:

– That may happen in spite of the Bill.

Senator KEATING:

– In that case, the Court should have the power to impose a very severe penalty. I aim quite in agreement with Senator Pulsford to provide for a term of imprisonment with or without hard labour. If he proposed to raise the penalty from .£500 to ^1,000, I should be with him too. I do not mind how high the maximum is; but certainly wireless telegraphy could be used with far greater danger to* the community than could internal telegraphy

Senator GIVENS:
Queensland

– If Senator Pulsford will alter his amendment so as to eliminate the fine, and substitute a substantial term of imprisonment as a penalty, he shall have my support. I wish the penalty to be at least five years’ imprisonment. In our Acts, there is too great a disposition to substitute fines for imprisonment as a form of punishment. A wealthy offender can always escape the indignity of going to gaol, but a poor man, because he cannot pay the fine, has no opportunity of escaping that obloquy. All a wealthy offender has to do is to shell out some of. his surplus cash, and we appear to be quite satisfied. It has been pointed out by Senator Keating that there is a national danger in allowing any one to work a wireless telegraphy station in any part of the Commonwealth, because it might be used to our detriment, and even to our national destruction. Any term of imprisonment which could be imposed for a crime of that character would not be too great.

Senator Keating:

– There might be a technical breach of the Act for which it might be necessary to fine the offender only is.

Senator GIVENS:

– He could be sentenced until the rising of the Court, and as soon as the sentence was given, the Court could immediately adjourn, when he would not go to gaol. There is nothing in that argument, because if the monetary punishment can be reduced to an infinitesimal amount, the imprisonment can also be reduced to an infinitesimal time. If the amendment be defeated, I shall amove to eliminate the monetary punishment with a view to substitute a term of imprisonment.

Senator MILLEN:
New South Wales

– I quite recognise the value of the suggestion that an alternative punishment should be provided for. That for certain grievous offences, such as wilful attempts to defeat the Act, there should be punishment by way of imprisonment I quite agree ; but to say that there should be no other form of punishment, appears to me to be going to the opposite extreme.. Senator Keating pointed out the weak spot in the contention when he mentioned that someone might have unconsciously committed a little offence against the Act or some regulation thereunder. But Senator Givens, with that large humanity which marks his character, would hale the offender to gaol at once. In modern times, the whole tendency of legislation has been in the humane direction, and not in the direction of returning to the old barbarous laws which disgraced the earlier years of last century.

Senator O’Keefe:

– A breach of this clause could hardly be a small technical offence.

Senator MILLEN:

– A man does not know what is a technical offence until the lawyers get hold of him.

Senator Givens:

– Why leave a loophole for the wealthy?

Senator MILLEN:

– There would be no loop-hole left for the wealthy if the clause provided for punishment by way of imprisonment.

Senator Keating:

– If a man went beyond the terms of his licence, that would be a breach of the Act.

Senator MILLEN:

– In all good faith, a man might exceed the terms of his licence, and yet the magistrate would be bound to punish him. It would be wrong to have no alternative punishment to be used according to the discretion of the Court. In many cases, men are convicted of a technical offence, but their honesty of motive is recognised by the presiding Magistrate or Judge; and he inflicts a nominal penalty. Let me point out the inconsistent attitude of some honorable senators. In the previous clause they were quite prepared to leave the largest measure of power to the departmental officers and the Minister; but they hesitate to leave a measure of power to our Judges and juries. If I were asked to give a discretionary power to any one, I should give it to the latter. While I am quite prepared that as an alternative, to be used at the discretion of the Court, there shall also be a term of imprisonment, still I cannot countenance the proposal to make imprisonment the only punishment.

Senator O’KEEFE:
Tasmania

– I cannot agree with Senator ‘Givens that it is altogether wise to do away with the monetary penalty. I can hardly agree with the suggestion that a breach of this provision could very well be a slight technical offence. It seems to me that it would be a very serious offence. At the same time, I believe in providing for an alternative penalty, and if Senator Pulsford would agree to alter his amendment, as suggested by Senator Keating, I think it would meet the views of almost every honorable senator.

Senator GRAY:
New South Wales

– It appears to me that the punishment to be awarded under the clause should be either very heavy or very light. I cannot see why the penalty or the term of imprisonment should be fixed. I think that it should be left to the discretion of the Judges or the magistrates. Can we not conceive circumstances in which a sentence of imprisonment for twelve months or twoyears would be absolutely unjust. If we provide for punishment by either fine or imprisonment, I think we shall have done enough. It is almost impossible to realize the nature of an offence unless we know the conditions under which it has been committed.

Senator Millen:

– If that suggestion were adopted a man might be imprisoned for the term of his natural life.

Senator GRAY:

– The honorable senator assumes that on the evidence adduced the Judges would not do justice. I am prepared to trust the Judges as much as I trust the members of the Senate.

Senator Millen:

– Every Act of Parliament prescribes the penalties to be imposed.

Senator McGREGOR:
South Australia.

– I hope that a more definite provision will be made than the one just suggested by Senator Gray. If the clause be amended to include imprisonment as well as fine-

Senator Gray:

– No, fine or imprisonment.

Senator McGREGOR:

– Even in that, case a maximum ought to be fixed. I am’ always in favour of fixing both a maximum: and a minimum. There can be no trifling offence committed under the clause; it can only be a flagrant violation of the law, and therefore a minimum should be fixed. If we were to fix the maximum at ten years imprisonment that would be much more reasonable than not to provide, as Senator Gray suggests, for either a minimum or a maximum in the case of either fine or imprisonment. The honorable senator would not like to wake up some morning and find that a friend who had been guilty of an offence against the Act had been landed in prison for the term of his natural life, or for twenty years. He would feel very sorry then that he had not fixed a. maximum, of, say, five or ten years, by which the Judge’s would be bound. The clause should provide for a minimum term not exceeding one year, and for a maximum term not exceeding ten years. That would leave a wide margin to the Court.

Senator PULSFORD (New SouthWales). - I am quite willing to accept thesuggestion of the ‘Minister, and to allow the monetary penalty to stand at£500, with the addition of some words providing; for a term of imprisonment.

Amendment, by leave, withdrawn.

Amendment (by Senator Pulsford) proposed -

That the following words be added - “or imprisonment, with or without hard labour, for a term not exceeding twelve months.”

Senator PEARCE:
Western Australia

– I desire to know whether the Minister intends to accept the amendment. It seems to me that a maximum term of twelve months would be too small. I do not agree with Senator McGregor as to the fixing of a minimum, but I certainly think that the maximum should be more than twelve months. With regard to the suggestion of Senator Givens, I should like to know how he would deal with the members of a limited liability company.

Senator Givens:

– I would put in gaol everyman who was responsible. More villainy is done by limited liability companies than by private persons.

Senator PEARCE:

– I suggest that five years should be the maximum ; and with that object I, move -

That the amendment be amended by leaving out the words “ twelve months “ and inserting in lieu thereof the words “ five years.”

Amendment of the amendment agreed to.

Senator KEATING:

– I am not averse to the maximum penalty being made higher, and if Senator Pulsford desires to increase it I shall offer no objection. But it may be desirable, as a consequence of inserting a provision for imprisonment, to insert another clause to confer upon Justices powers of summary jurisdiction. Section 5 of the Acts Interpretation Act 1904 reads -

Offences against any Act which (a) are punishable by imprisonment, but not for a period exceeding six months; or (b) not being punishable by imprisonment are not declared to be indictable offences, shall, unless the contrary intention appears in the Act, be punishable on summary conviction.

Therefore, if any term of imprisonment ex-‘ ceeding six months may be imposed under this measure, it will be necessary for us to insert a special provision, enabling cases to be dealt with in a summary way wherever necessary.

Senator MILLEN (New South Wales).I wish to suggest the postponement of this clause. It is rather a serious step to impose a penalty of five years’ imprisonment.

Senator Pulsford:

– “ Not exceeding.”

Senator MILLEN:

– A maximum is inserted, not only to restrain a Judge, but as some indication to him as to the penalty that he shall inflict. If it is merely a maximum, why not put in fifty years? The penalty named in an Act is an indication of the comparative severity with which punishment is to be meted out under the Act in question as compared with another Act.

Senator O’Keefe:

– Surely the Judge would be guided by the nature of the offence.

Senator MILLEN:

– If a Judge sees in one Act a maximum penalty of five years for a particular offence, and in another Act a maximum penalty of three years for another offence, he naturally) draws the conclusion that the Legislature regards the former offence as the more serious of the two.

Senator Givens:

– Does not the honorable senator think that it would be possible for offences to be committed under this clause that would deserve a penalty of five years’ imprisonment?

Senator MILLEN:

– I am not saying anything about that. At the present time I am not in a position to say what the measure of punishment should be. It would require comparison with punishments for other offences of a corresponding character to enable one to form an opinion. I should like to have an opportunify to refer to our Post and Telegraph Act, our Customs Act, and other Statutes, in order to see what penalties we have imposed for other offences. I would impress upon honorable senators that one of the most prominent facts in connexion with the legislative work of recent years - I am not referring speciallyto Commonwealth legislation - has been the enormous quantity of time occupied in amending defective Bills. In our States Parliaments three-fourths of the time is taken upby amending Acts previously passed. I suggest, therefore, that the amendment be postponed, in order to enable us to obtain information which is necessary before we can come to a proper conclusion.

Senator PULSFORD (New South Wales). - The reason why I accepted Senator Pearce’s amendment was that the possibility of infringements under this measure do not refer merely to money troubles or to defrauding the revenue, but to possibilities of serious injury to the community. Wireless telegraphy, as I said some time ago, is an instrument of warfare, and some person of evil disposition might use it so as to inflict grave injury on the Commonwealth.It was in view of that possibility that I was willing to accept an increase of the maximum penalty, and I cannot be guided by the consideration of the penalties imposed under other Acts, where money matters only are at stake.

Senator Millen:

-i was speaking of criminal acts also.

Senator PULSFORD:

– A criminal act against the whole Commonwealth is a more serious offence than one against an individual.

Amendment, as amended, agreed to.

Clause, as amended, agreed to.

Clause 7 agreed to.

Clause 8-

  1. If a Justice of the Peace is satisfied, by information on oath, that there is reasonable ground for supposing that any appliance is established, erected, maintained, or used in contravention of this Act or the regulations for the purpose of transmitting or receiving messages by means of wireless telegraphy, he may grant a search warrant to any pers’on.
Senator PULSFORD:
New South Wales

– I move -

That the word “ person,” line8, be left out, with a view to insert in Heu thereof the words “ police officer or any officer appointed in that behalf by the Postmaster-General or the Minister for Defence, and named in the warrant.”

The power conferred by the clause as it stands is a very strange one There is no definition of the “ person “ to whom the power may be granted. The English Act does contain a definition, which I consider to be desirable. If honorable senators do not think that the Minister of Defence should have power under this measure, as well as the Postmaster-General, my amendment can be amended.

Senator KEATING:
Protectionist

– I ask Senator Pulsford not to press this amendment, or, if he does, I trust that the Committee will not accept it. Contraventions of this measure would possibly take place at great distances from the centres of population. The English circumstances are totally different from ours. A wireless telegraphy station might be discovered somewhere on the north coast of Western Australia. Suppose that a justice of the peace was satisfied that there was reasonable ground for believing that there was such a station in contravention of this measure. It would considerably impede the officers from doing their duty if they had to wait until they had communicated with the Postmaster-

General to get him to authorize a certain person to be in turn authorized by the justice of the peace to make the necessary search. The very reasons assigned in discussing the last section, for imposing a heavy penalty as a maximum, apply equally in this case in dealing with any contravention of the measure. It is necessary that there should be the utmost expedition, unless people are to be allowed to contravene the measure at some remote point, and to do it flagrantly until the PostmasterGeneral shall be communicated with to authorize a certain person to authorize a justice of the peace to make a search. By permitting that, we should not be carrying out the purpose of the Bill, but should simply be putting ourselves in the hands of those persons who wished to contravene it.

Senator PULSFORD (New South Wales). - There is some force, I must admit, in the contention of the Minister, although the clause looks to me to be too wide, and capable of being abused. But it may be best to let it pass as it stands, and run the danger of a little abuse - and there is some danger- - in consideration of the possibilities of good which it contains. ThereforeI ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause agreed to.

Senator KEATING:

– I now desire that progress shall be reported, in order to give Senator Pulsford an opportunity to have clause 3 reconsidered. If Senator Millen finds that it is necessary for him to have clause 6 reconsidered, there may be an opportunity for that also. I cannot promise that definitely, and it may be that in the meantime Senator Millen may satisfv himself that the clause is good. If, however, I am satisfied that he has good reasons for asking for its reconsideration, I may be in a position to consent to a recommittal of clause 6, as well as of clause 3.

Progress reported.

page 622

JURY EXEMPTION BILL

Second Reading

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– I move -

That the Bill be now read a second time.

This is a short measure of only two clauses, and it purports to carry out in connexion with the Commonwealth, provisions analogous to those which obtain in each of the several States, where certain persons occupying public and quasi public positions, are exempt from liability to be called on to serve on juries. The establishment of the Commonwealth created a number of new positions and offices, and it is deemed desirable to exempt from the liability I have mentioned the persons who occupy those offices and positions, and who were not in contemplation when the Acts of the States were passed. Clause 1 contains merely the short title; and the second clause, which comprises the whole of the legislative effect of the Bill, exempts from liability to serve as jurors the following persons : - The Governor-General, members of the Federal Executive Council, Justices of the High Court and of other Courts created by the Parliament, senators and members of the House of Representatives, members of the Inter- State Commission, officers of the Public Service of the Commonwealth, and members of the permanent Naval and Military Forces.

Senator Givens:

– Have we power to exempt members of a body which is not yet in existence, such as the Inter-State Commission ?

Senator KEATING:

– The Inter-State Commission is a body contemplated by the Commonwealth Constitution, and I think we have full power to exempt its members from such service. This Bill is not intended to operate merely for to-day or tomorrow, but for all time, or until it is repealed. If an Inter-State Commission be appointed during the operation of this Bill, the members will immediately come within its provision. All the persons named in the clause are persons who could not have been in contemplation when the Acts of the States were passed, and it is obviously necessary that the occupants of such positions should be exempt.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clause 1 agreed to.

Clause 2 -

The following persons shall be exempt from serving as jurors whether summoned so to serve under the law of the Commonwealth or of a State. . . .

Senator PEARCE (Western Australia). Have we power to exempt persons from serving as jurors under the law of a State? The States have power to call on persons to serve on juries, and I should like to know whether, in the opinion of the Minister, those powers are annulled by the Commonwealth Constitution.

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– We have, I think, the fullest competence to deal with all matters incidental to the general and specific powers conferred on us by the Constitution, and where the law of a State and the law of the Commonwealth come into conflict, the latter takes precedence. There need be no doubt as to the power of the Federal Parliament to legislate on the lines laid down. I do not think that any of the gentlemen of constitutional knowledge in the other Chamber, or members of a previous Government, entertain any doubt whatever on the point.

Senator Walker:

– Is it not necessary to also exempt officers of the Parliament, who, I believe, are not members of the public service in the ordinary sense of the word ?

Senator Playford:

– Officers of Parliament are exempt now under the privileges of the House of Commons.

Senator GIVENS:
Queensland

– Does the Minister not think it would be fair to omit the Governor-General from the operation of the clause? His Excellency does not appear to have a great deal to do except to attend to society functions, and it might be an agreeable change to act on a fury occasionally.

Clause agreed to.

Bill reported without amendment; report adopted.

Senator Walker:

– I should like to congratulate the honorary Minister on the passage of his first Bill through Committee.

Honorable Senators. - Hear, hear.

page 623

EVIDENCE BILL

Second Reading

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– I move -

That the Bill be now read a second time.

Honorable senators have had an opportunity to peruse the measure, but I intend to add a further clause which the Minister in charge in another place practically promised should be proposed in the Senate. The provisions of the Bill are similar to those in the legislation of the various States and of Great Britain with regard to what matters a Court shall take judicial notice of, without being under the necessity to call on persons to come forward and give oral evidence of identification. Under ordinary circumstances, in order to prove before a Court the signature of a person, if the signature is not admitted, it is necessary for some person familiar with the hand-writing of the party whose signature is in question, to testify as to its authenticity. Obviously it would be very awkward and difficult for the administration of justice, if the signatures of persons occupying official positions had in every instance to be proved in the same way as it is necessary to prove the signatures of private individuals who may not be known to the Court or outside their own immediate circle. Clause 4 is as follows : -

All Courts shall take judicial notice of -

the signature of any person who holds or has held the office of Governor-General, Minister of State, President of the Senate, Speaker of the House of Representatives, Secretary to the Federal Executive Council, Justice of the High Court, Principal Registrar, Deputy Registrar or District Registrar of the High Court, President or Deputy President of the Commonwealth Court of Conciliation and Arbitration, Industrial Registrar or Deputy Industrial Registrar, or President or Judge or member of any Federal Court, or of the InterState Commission, or any office to which the Governor-General, by order published in the Gazette, declares this section to apply ; and

the official seal of every such person or

Court ; and

the fact that such person holds or has held such office ; if the signature or seal purports to be attached or appended to any judicial or official document.

Honorable senators may consider this a very wide provision, seeing that the Court shall take judicial notice of a person who holds, “ or has held,” one of the offices named. But the Court takes this judicial notice only when the signature or seal has relation to any judicial or official document. For instance, the Court would take notice of the official signature of the President of the Senate on any document which he signed as President, whether he were Presidentto-day, or had been President twenty or thirty years back. But in the case of the President’s signature in his private character, and affecting his own private business, the Court would require the same proof as is demanded in the case of every other private individual. If the Court were restricted to the proof necessary in the case of a private individual, when official documents are concerned, it might be necessary for officers from the

Seat of Government, or elsewhere, to travel great distances in order to give evidence. In clause 5 provision is made that evidence of any proclamation, commission, order, or regulation made by the Governor-General, or by a Minister, may be given in all Courts by the production of the Gazette, which, under the Acts Interpretation Act, means the Commonwealth Gazette. ‘ The clause goes on to provide that such evidence may also be given -

  1. by the production of a document purporting to be a copy thereof, and purporting to be printed by the Government Printer, or by the authority of the Government of the Commonwealth ; or
  2. by the production (in the case of any proclamation, commission, order, or regulation issued or made by the GovernorGeneral) of a document purporting to be certified by the Secretary to the Federal Executive Council’ as a true copy thereof or extract therefrom.

Honorable senators will see that these are alternative methods of proving proclamations, commissions, orders, or regulations. Then with regard to public books and documents, which it would be manifestly inconvenient to have transferred from the place where they are ordinarily kept, for the purpose of proving entries in them, such proof may be given in this way -

Whenever any book or document of the Commonwealth is of such a public nature as to be admissible in evidence on its mere production from the proper custody -

I remind honorable senators that our law of evidence, as at present existing, provides in certain cases that the mere production of certain things, without any supplemental oral proof as to what they may be, is sufficient to prove them. In cases of that kind where a book, document, or record of the Commonwealth is of such a character that its mere production would be evidence, it might still be very inconvenient for the administration of the Department having the custody of such records ifthey had to be taken away for the purpose of being proved in cases being tried at somedistancefrom the place in which they were kept. Consequently, under clause 6 of the Bill, provision is made that -

Any copy thereof or extract therefrom shall be admissible in evidence in all courts, if -

it is proved to be an examined copy or extract ; or

it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

Under clause 7, the Votes and Proceedings, or Journals, or Minutes of either House of Parliament may, on their mere production, be taken as evidence of what they contain. Provision is also made that -

The mere production of a paper purporting to be the Commonwealth of Australia Gazette shall in all courts be evidence that the paper is the Gazette, and was published on the day on which it bears date.

Honorable senators are aware that the Gazette contains notices of a very important character, many of which might require to be proved in connexion with proceedings taken in various Commonwealth and State Courts. It would be manifestly inconvenient if the Government Printer, or some one from the Government Printing Office, or from the Department responsible for the insertion of a notice, should have to attend a Court to prove that the notice was a notice issued by the Department, that it was published in that paper, and that that paper was the Commonwealth of Australia Gazette. Again, it is provided that the mere production of a paper purporting to be printedby the Government Printer is to be proof that it was printed by that officer. With regard to Acts of the GovernorGeneral, or of a Minister, provision is made that -

Where by any law at any time in force the Governor-General or a Minister is authorized or empowered to do any , act, production of the Gazette purporting to contain a copy or notification of any such act shall, in all courts, be evidence of the act having been duly done.

Then there is provision for proof of judicial proceedings. Proof of evidence of any judicial proceeding of the High Court, or any Federal Court, including any affidavit, pleading, or legal document filed or deposited in any such Court, it is proposed may be given in all courts by the production of a document, purporting to be an examined copy thereof, and purporting to be sealed with the seal of the Court, or purporting to be certified by a registrar or chief officer of the Court. Honorable senators will see that the object of the Bill is simply to enable courts of justice, in dealing with matters where documents, books, entries, or records of an official character have to be proved, to accept proof of these in circumstances which would not ordinarily be evidence in connexion with private records or private transactions. It is necessary that this should be so in order that the administration of the various Government Depart ments may be carried on expeditiously, and may not be interfered with or hampered by the necessity for the production of original documents and records. Without such provision, some Departments would have to keep a staff of officers whose duties would be confined to attendance in various courts to prove certain documents, acts, and publications in respect of those Departments. In dispensing with the ordinary rule of evidence, in regard to the production of original documents, the Bill makes ample provision that the copies or other evidence produced in lieu of originals must beproperly certified and authenticated, so thatthe: Court shall not be in any way misled. I have already indicated that it is proposed to add a new clause, which is to the following effect : -

Affidavits for use in the High Court or any Court exercising Federal jurisdiction may be sworn before any Justice of the Peace without the issue of any commission for taking affidavits.

Matters may come up for consideration in the High Court, in which persons very far from the larger centres of population may be interested. Inordinary circumstances, affidavits for use in the High Court would have to be sworn before a commissioner for taking affidavits for the High Court. In some of the States there are very few commissioners outside of the capital cities who are authorized to take affidavits for the High Court.

Senator Matheson:

– Must a commissioner be a lawyer?

SenatorKEATING. - Not necessarily. This might necessitate persons interested travelling great distances to attend before a commissioner for the purpose of making an affidavit to be used in the High Court. On account of the extent of our territory and the distances at which persons interested in matters before the High Court might be from the larger centres of population, provision is made by the proposed new clause to enable them to make affidavits, for use in that Court, before a justice of the peace. As honorable senators are aware, justices of the peace have now the power to take affidavits in connexion with State matters of very great importance, and it is considered that they may be charged with the duty of taking affidavits which may often have to be taken in remote parts of Australia for use in the High Court.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

ClausesI toII agreed to.

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– I move -

That the following new clause be inserted : - “11a. Affidavits for use in the High Court or any

Court exercising Federal jurisdiction may be sworn before any Justice of the Peace without the issue of any commission for taking affidavits.”

Senator WALKER:
New South Wales

– I would ask the Minister whether there is any intention to create Commonwealth justices of the peace. A man may be a justice of the peace for Queensland, and may be asked to attest one of these affidavits in Victoria. Would it be competent for him to do so?

Senator KEATING:

– I think not. The clause contemplates his acting within his own jurisdiction, that is to say, within his own State, or within his own district, if he happens to be a district justice.

Senator Walker:

– Should that not be made a little more clear ?

Senator KEATING:

– I propose to amend the clause. I move -

That after the word “ Peace,” line 3, the words “ for any State “ be inserted.

Senator Walker:

– Is there any intention to create Commonwealth justices of the peace?

Senator KEATING:

– I am not in a position to say.

Amendment of the amendment agreed to.

Senator MATHESON:
Western Australia

– A commissioner is usually entitled to charge for witnessing an affidavit. Will that apply to justices of the peace under this clause? Senator Keating will understand that if it does not apply the tendency will be for everybody to go to a justice of the peace to attest an affidavit rather than to a commissioner.

Senator KEATING:

– A commissioner is entitled to charge fees according to a scale usually drawn up by the Chief Justice of the Court that empowers the commissioner to act as such. No provision is made for a charge by justices of the peace under this clause. I quite recognise that there would be a tendency to have affidavits witnessed before justices of the peace rather than before a commissioner.

Senator Matheson:

– Commissioners might charge two guineas.

Senator KEATING:

– I think not. In some of the States the fee for attesting an affidavit is only1s. 6d. I find that, according to the Acts Interpretation Act, a “ justice of the peace “ includes “ a justice of the peace for a State or part of a State.” It will, therefore, be necessary, on reconsideration, after the title is agreed to, to strike out the words “ for any State” which we have just inserted in this clause-

Senator MULCAHY:
Tasmania

– It seems tome that it was not necessary to insert the words “ for a State.” The objection raised by Senator Walker is not quite met by their insertion. The. Minister said that in his opinion a justice of the peace could only act in this capacity while he was within his own jurisdiction. But even by the way in which the new clause has been amended, he would not be confined within that limit. Supposing, for instance, that an honorable senator, whowas a justice of the peace for Tasmania, were asked to act while he was in Victoria, it seems to me that, as the new clause is worded, he could act. Whether the words- “ when acting within his jurisdiction “ ought not to be added to the words already inserted, is a question which I suggest for the consideration of the Minister. Senator KEATING.- The terms of the commission of a justice of the peace practically define his jurisdiction, and immediately he goes beyond the territory of his State or district, it ceases to operate. My purpose in inserting the words “ for any State,” was to make it clear that it did not necessarily mean a Commonwealth justice of the peace, such as Senator Walker contemplated. But I find that accordingto section 9 of the Acts Interpretation Act of last year - “ Justice of the Peace “ includes a Justice of the Peace for a State or part of a State.

So that if the Committee will agree toomit the words “for any State,” from the new clause, a State justice of the peace will be included. I do not think that outside his jurisdiction a justice of the peace could exercise the power of attesting that is conferred by this clause. I think it could only be exercised by a justice of the peace while he was acting within the terms of his commission, that is, within the territory of his State or district.

Proposed new clause as amended agreed to.

Title agreed to.

Motion (by Senator Keating) agreed to-

That clause11a be reconsidered.

Amendment (by Senator Keating) agreed to -

That the words “ for any State “ be left out.

Clause, as amended, agreed to.

Bill reported with amendments.

page 627

LAPSED BILLS

Senator PLAYFORD (South Australia -

Minister of Defence).-I move -

That a message be sent to the House of Representatives acquainting that House that the Senate has considered the resolution of the House of Representatives conveyed in message No. a of that House to the following effect : - “ That it is desirable that the Standing Orders of the Senate and House of Representatives relatingto Lapsed Bills be referred to a joint meeting of the Standing Orders Committees for consideration and report,” and concurs in the course recommended.

When this motion is carried, a message will be sent to the other House, and a joint meeting of the Standing Orders Committees will be held to consider these Standing Orders.

The PRESIDENT:

– Do I understand that by this motion the question of these Standing Orders will be referred to a joint meeting of the Standing Orders Committee?

Senator PLAYFORD:
Protectionist

– Yes.

The PRESIDENT:

– The House of Representatives has sent a message asking the Senate to do a certain thing. Ought we not to do that thing before we tell that House that we have done it? Ought we not to refer the matter to the Standing Orders Committee?

Senator PLAYFORD:

-In its message, the other House simply says, “ We want your concurrence in something,” and the Senate is now asked to say “Yes, we agrees” That appears to me to be the most intelligentway of dealing with the matter.

The PRESIDENT:

– I shall put the motion, but it does not seem to me that the matter will be referred to the Standing Orders Committee.

Senator WALKER:
New South Wales

-I do not exactly understand the position taken up by the Minister. I think that we ought to pass a motion affirming the desirability of referring these Standing Orders to a joint meeting of the Standing Orders Committees, and then to communicatethat fact by message to the other House.

The PRESIDENT:

– By the motion the Senate is merely asked to send a message to inform the other House of a certain thing, namely, that we concur in their resolution. But ought we not to agree to refer these Standing Orders to the Standing Orders Committee before we intimate our concurrence ?

Senator Playford:

– The Senate is asked to concur in the course which is suggested by the other House, and which is set out in the motion.

Senator PEARCE:
Western Australia

– I take it that if the motion be carried, our Standing Orders Committee will have authority to sit conjointly with the corresponding body of the other House, and consider the Standing Orders relating to lapsed Bills, and that in passing this motion we merely inform the other House of our intention.

The PRESIDENT:

– Not of our intention, hut of what we have done.

Senator PEARCE:

– We shall tell the other House that we have concurred in their request, and our Standing Orders Committee will take the resolution, as an instruction to sit conjointly with the other body.

The PRESIDENT:

– It is an implied, not a direct, authority.

Question resolved in the affirmative.

page 627

SPECIAL ADJOURNMENT

Senator PLAYFORD:
Minister of Defence · South Australia · Protectionist

– I move -

That the Senate, at its rising, adjourn until Wednesday, 16th. August.

In view of the small amount of business on the notice-paper, I do not think it would be fair to ask honorable members to sit next week, but I would request them to come prepared on Wednesday week to goon with the consideration of the Kalgoorlie to Port Augusta Railway Survey Bill, and to continue it until it is finished. Next week several honorable senators wish to be away, and if we were to meet they would have very great difficulty in getting pairs. Otherwise I should ask honorable senators to sit next week, and complete the consideration of that Bill if possible.

Question resolved in the affirmative.

Senate adjourned at 12.40 p.m.

Cite as: Australia, Senate, Debates, 4 August 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050804_senate_2_25/>.

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