2nd Parliament · 2nd Session
The President took the chair at 3.30 p.m., and read prayers.
– I desire to ask the Minister of Defence, without notice, whether he can give the Senate an idea as to when the valuation of the Defence properties which have’ been handed over by the States to the Commonwealth will be completed ?
– I have not the remotest idea. Once a matter is placed in the hands of two arbitrators there is no telling when their valuation will be completed.
MINISTERS laid upon the table the following papers : -
Copy of correspondence between the AttorneyGeneral and the Justices of the High Court re travelling expenses.
Ordered to Be printed.
Estimates of Revenue and Expenditure for the year ending 30th June, 1906.
The Budget, 1905-6- Papers prepared for the information of members of Parliament.
The Clerk laid upon the table the following paper: -
Return to order of the Senate - Yodda Valley Gold-field, British New Guinea - Documents relating to capture of Mr. O’Brien.
Ordered to be printed.
– I beg to lay upon the table the following paper : -
Copy of conditions of arrangement with Mr. John Plummer with regard to the writing and distributing of articles in Great Britain.
– Does the honorable senator move that the paper be printed ?
– No, sir, but if any honorable senator wishes the paper to be printed I shall offer no objection. I think that all papers laid upon the table should be referred to the Printing Committee for consideration and report.
– Sometimes the Senate wishes a paper to be printed straight away.
– It is a great pity that it is so.
– I move -
That the paper be printed.
– What is the paper?
– I do not know what it is.
– It is a copy of the contract with Mr. John Plummer.
– The motion hasnot been seconded.
– I second the motion.
– What is the use of the Printing Committee if this course is to be taken ? I always understood that in each House of the Parliament a Printing Committee was appointed to go through every document laid upon the table, and say whether it was of sufficient public- importance to be printed. We are not in a position to express an opinion as to whether this paper ought to be printed until we know what it is, and can judge its importance.
– That is a question for the Senate to decide.
– I agree with the leader of the Senate that all these papers should be referred to the Printing Committee.
– I do not think that the honorable and learned senator is in order.
Question resolved in the affirmative.
– May I ask you, sir, when the next meeting of the Printing Committee will take place?
– I do not know. I am not a member of the Committee.
– Who is the chairman of the Printing Committee?
- Senator Smith is the chairman.
– The Printing Committee made certain recommendations, which were flouted bythe Senate, and no sitting has been held since that time.
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Referring to the statements of the Minister of Defence in replying to question on 16th August with regard to section16 of the Post and Telegraph Act -
– The answers to the honorable and learned senator’s questions are as follow: -
– What a magnificent reply !
– What a number of magnificent questions !
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Suez have been paid for on a per capita basis, but it is now proposed to pay for the ocean mail service between Australia and Canada on the same basis.
– Arising out of that answer, I desire to ask Senator Keating whether he considers that the term “ocean transit” applied by Senator Macfarlane to mails crossing this little strait or pond is properly so used?
– I think that the answer to the third question discloses that it is not treated as an ocean mail service at all.
– That is what I wish to know.
– I desire to ask Senator Keating whether there is any other line of steamers running from port to port in the Commonwealth which receives a subsidy therefrom ?
– I amnot in a position to give a definite answer, but I shall endeavour to get the information for the honorable and learned senator as soon as possible, perhaps before to-morrow.
– May I ask whether the revenue derived from the poundage rates is considered a contribution to the subsidy paid by Tasmania?
– I understand that the subsidy is paid in the first instance by
Tasmania, and that the revenue collected by the poundage rates from other States is debited to them and credited to Tasmania, as their portion of the subsidy.
asked the Minister of Defence, upon notice -
– The answers to the honorable senator’s questions are as follow: -
asked the Minister of Defence, upon notice -
If it is the intention of the present Government to retain section 93 of the Constitution known as the bookkeeping section, or whether they will, after October, 1906, make some other provision for crediting revenue and debiting expenditure?
– The answer to the honorable senator’s question is as follows : -
This will require to be considered in connexion with other financial adjustments next year. It is pertinent to the Budget of1906, and not to that of the present year.
asked the Minister representing the Minister of Home Affairs, upon notice -
– The answers to the honorable and learned senator’s questions are as follow : -
– Does the Minister mean that individual members of the Public Service have written to members of Parliament, or that organizations of the Public Service have done so?
– That is not stated in the answer. It says “ that some public servants have written to members.” It does not’ say whether they have written jointly or individually.
– I should like to ask a question, arising out of the replies. Do the Government propose to treat representations from organizations of public servants as a breach of regulation. 46 ?
– I think that any representation would have to be regarded according to all the circumstances surrounding it, in order to determine whether or not it was the exercise of a right or a breach of the Public Service Act. Any representations which may be made in connexion with the classification of the Public Service, which in the opinion of any member of the Senate are in conflict with the policy and principle of the Public Service Act, will receive consideration from the Government, and will be represented to the Commissioner, so that he may or may not take such action as he . thinks that it is his duty to take.
– Does the Minister mean that a public servant may address a member of Parliament about the classification?
– That is a matter for the honorable senator himself to consider. He may bring such matters under the notice of the Government in any circumstances.
Did Major-General Hutton recommend the purchase by the Commonwealth of the short rifles now being served out to the Light Horse Regiments in the service of the Commonwealth ?
How many of such rifles have been purchased by the Commonwealth?
Has the Minister been informed that rifles of the pattern in question have been abandoned by the imperial authorities, and the manufacture of the weapons stopped ?
Is the Minister aware that it has been proved by experience in England that the magazine of the rifle in question “ is liable to jamb, that there is too much play in the mechanism, that the balance is bad, and the metal used too soft?”
Is this weapon to be withdrawn from use in the Commonwealth Forces?
– The answers to the honorable senator’s questions are as follow : -
We have seen some newspaper paragraphs on the subject, but we have no official information.
Has a communication been received by the Commonwealth Government from the Imperial authorities, taking exception to the wearing, in Japan, by Colonel Hoad, D.A.G., Commonwealth Military Forces, of aiguillettes so similar to those WOrn by aides-de-camp and equerries to the Sovereign as to convey the impression that the wearer occupied a position on the staff of HisMajesty ?
Were the aiguillettes ordered or recommended to be worn by officers of the Commonwealth Forces at the instance of Major-General Hutton ?
What is the cost of these articles of adornment?
Are they paid for by the Commonwealth, or provided at the expense of officers required to wear them?
Has the Attorney-General replied to the complaint of the Imperial authorities regarding the wearing of these emblems, maintaining the right of the Military Forces of the Commonwealth to wear any uniform approved by the Government of the Commonwealth? _ 6. Does the Attorney-General maintain the right of the Commonwealth to complete independence of action regarding the wearing of uniforms: and emblems at foreign Courts?
Is it not a fact that No. rr, Part XI., of the Military Regulations of the Commonwealth provide that “ Permission to wear uniform at foreign manoeuvres can only be obtained from the War Office?”
Does not the promulgation of this regulation recognise the right of the British War Office to regulate the wearing abroad of Commonwealth uniforms?
– The’ answers to the honorable senator’s questions are as follow : -
3- £9 9S-
– I do not think the Minister of Defence has answered question No. 8.
– The answer is yes. I know that there is a provision onthe subject, but it refers, I think, to military manoeuvres, and does not refer to anofficer who is attached to a special Army Corps in connexion with war.
Motion (by Senator Lt.-Col. Neild)agreed to -
That there be laid upon the table of the Senate copies of all papers connected with the landing in the Commonwealth of Mrs. Mahommed
Din, wife of Mr. Mahommed Din, a resident of Western Australia.
That there be laid upon the table of the Senate all papers connected with the grant of an exemption certificate to the said Mrs. Mahommed Din.
– I lay the papers in question upon the table.
Motion (by Senator Lt.-Col. Neild) agreed to -
That there be laid upon the table of the Senate copies of all papers connected with the recommendation of Major-General Hutton for the purchase of pistols for the arming of the Light Horse Regiments in the service of the Commonwealth.
Also all papers connected with the refusal of the Minister of State for Defence (Senator the Honorable Anderson Dawson) to approve of the recommendation of Major-General Hutton for the purchase of the said pistols.
Also all papers connected with the condem nation by the British War Office of the said recommendation by Major-General Hutton.
Bill presented by Senator Sir Josiah Symon, and read a first time.
Message received from the House of
Representatives intimating that it bad agreed to the amendments made by the Senate in this Bill.
In Committee (Consideration resumed from 27th July, vide page 188) :
Clause 2 (Evidence may be taken on oath).
– It will be convenient for me to state what I propose to do in connexion with this Bill. It will be within the recollection of honorable senators that when I presented the Bill to the Senate I stated that it had been considered by the parliamentary draftsman, to whom I hadreferred it, with a view to have the phraseology of the measure brought into linewith the phraseology of the general Acts of the Commonwealth. Sincethen the Bill has been referred to the Standing Orders Committee. The Committee, judging from their report, submitted the whole question to the parliamentary draftsman, who has prepared a much more elaborate Bill, covering many details of an administrative or machinery character, which were not provided for in the measure as originally submitted by me. We have passed the first clause of the Bill as I introduced it. I now propose to move the omission of the remaining clauses, in order that we may have an opportunity to adopt the recommendations of the Standing Orders Committee.
– It would be better to withdraw the whole Bill.
.- That is what it really amounts to. After the two clauses have been omitted, I propose to move the insertion of other clauses in their place. But if we were to adopt the procedure which Senator Guthrie recommends, we should have to begin de novo.
– There are seventeen new clauses.
– I do not care if there are seventeen hundred. I take it that the Standing Orders Committee has made provision for many cases that were not covered by the original Bill. I am prepared to accept the clauses which’ they recommend. I ask the Committee to negative this clause.
– In the running fire of conversation which was taking place, I was unable to clearly folllow the intention stated bySenator Neild. I understand that he asks the Committee to negative certain clauses with a view to inserting a long list of new clauses.
– That is so.
– I submit that it is not possible for honorable senators, or, at any rate, it is not possible for me to determine whether it is expedient to omit clauses until we have an opportunity to look rather closely at what is proposed to insert in their place.
– Good gracious me !
– I can quite understand that the honorable senator may feel the necessity for some little assistance or moral support of the kind. I am not pre-, pared to create a blank in the Bill until I know what it is proposed to substitute. It isasking rather too much for Senator Neild, without any notice, to propose to practically remodel the whole of this extensive Bill.
Senator Lt.-Col. NEILD (New South Wales). - Senator Millen can surely not have been here some weeks ago, when this Bill was postponed expressly to allow honorable senators to make themselves acquainted with the recommendations of the Standing Orders Committee.
– I have been here more frequently than has the honorable senator this session.
.- That is so, during this session, and I congratulate the honorable senator on the frequency of his attendance during this session. The report was submitted to the Senate last session, and three weeks ago the Bill was postponed to enable honorable senators to grapple with the recommendations of the Standing Orders Committee. Senator Millen has been displaying so much Roman virtue in his devotion to his country that I am surprised he should not have grappled with those little details. It ‘is unfair to charge me, under the circumstances, with springing a surprise on the Chamber.
– I did not charge the honorable senator with anything, There is no necessity to do that.
.- The honorable senator has -answered himself ; he should not have done so.
– I did not do so-
.- That is a matter of opinion. I draw the attention of Senator Millen to the recommendations of the Standing Orders Committee which I propose to adopt. Clause 2, enabling evidence to be taken, on oath, has been eliminated, and I now ask the Committee to strike out clause 3, which empowers the President of the Senate, the Speaker of the House of Representatives and the Chairman’ or member presiding at any sitting of a Committee of either House, to administer oaths and affirmations to witnesses. In the place of clause 3 I propose to adopt the recommended clause 2, which makes the same provision, with a little more elaboration. Thisclause gives exactly the same authority to other officials, namely, the Clerk of the House and the Chairman of any Committee.
– I draw Senator Millen’s attention to standing order 192, which provides that we must deal with clauses, as printed, and proposed new clauses. Clause 2 has been struck out, and it would now be in accordance with our practice to move to substitute the new clause.
– Our plan hitherto has been to deal with all the clauses of the Bill, and then propose the new clauses.
– I do not think that can now be done.
.- Then I shall now submit the new clause which I propose to substitute for: clause 2. Theparliamentary draftsman, or the Standing Orders Committee, has made one serious omission, and that is in reference to the interpretation of the word “ Committee.” The interpretation in the suggested clause is. “ ‘ Committee ‘ means a Committee of either House,” andto that I propose to add the words, “or a Joint Committee of the two Houses.” When I introduced this Bill, I recognised that, while we could regulate the taking of evidence before our own Chamber, or a Select Committee, by standing orders, we could not regulate the taking of evidence before a Joint Committee by standing orders ; . and, therefore, it is necessary to make the provision I have indicated. I move -
That the following proposed new clause be inserted : - “ 2. In this Act, unless the contrary intention appears : - “ House,” means a House of the Parliament. “Committee” means a Committee of either House or a Joint Committee of the two Houses. “ The President “ means the President of the Senate. “ The Speaker “ means the Speaker of the House of Representatives. “ The Chairman “ means the Chairman of a Committee or the member acting as the Chairman of a Committee. “ Witness “ means a person summoned to appear before either House or before a Committee to give evidence or produce documents. “ Documents “ includes books.”
– The Government ought, I think, to take some responsibility for this Bill, which is a measure of very great consequence, dealing, as it does, with proposed changes, if they be such, in the procedure of Parliament in regard to witnesses. I know that Senator Neild took a lot of trouble about the Bill last year, when it was referred to the Standing Orders Committee, and I presume that the AttorneyGeneral has considered the effect of the proposed clauses, and, through his representative here, can afford honorable senators some guidance. It is only right that we should . be told what are the views of the Government, and whether it is proper we should assent to the proposed new clauses.
– As Chairman of the Standing Orders Committee, I may say that these proposed amendments have been before honorable senators for about ten months. The recommendations were printed and circulated amongst honorable senators last session, and, having been printed again this session, were circulated once more about a month ago. Therefore, I do not think any honorable senator can fairly say he has not had time to consider the matter.
– Nobody is saying that.
– I understood Senator Millen to say so. However, the Standing Orders Committee held a great many meetings, and the parliamentary draftsman was called in to advise. Whether the parliamentary draftsman consulted the Attorney-General I do not know, but it was considered by the Committee that the Bill, as presented by Senator Neild, was defective on some points. Perhaps I am a little out of order in anticipating, but one of the points was that although t)he Bill, as originally presented, gave power to the Senate, House of Representatives, or any Committee, to administer an oath, it did not compel witnesses to take an oath. Honorable senators may have seen in the press lately a telegram from London, expressing the opinion of the Attorney-General of England in reference to some body in England - I do not exactly know what “Body, but I think it was the Board of Trade - not having power to compel witnesses to take an oath, although there was power to administer an oath. The Standing Orders Committee took- a great deal of trouble about the matter, and were unanimous in the recommendation that the clauses now suggested should be substituted for the Bill as originally introduced. It may, after all, be only a Question of draftsmanship, but there are details missing in the original Bill and now- recommended for approval. If honorable senators look at the report of the Standing Orders Committee they will see that -
The Committee after due consideration advise the Senate to proceed with the consideration of the Bill, but that its scope should be enlarged by the addition of clauses dealing with the whole matter of the summoning and examination of witnesses.
To do this clauses will have to be inserted for the punishment of witnesses -
who do not attend when summoned ;
who refuse to be sworn;
who refuse to answer questions.
I shall not read the whole of the report, but what I have mentioned are the substantive alterations recommended in the original Bill. It is for the Senate to consider whether the Bill shall be passed or not. but the Standing Orders Committee unanimously advise Ohe practical substitution of a new measure.
Senator MILLEN (New South Wales). - I beg to point out, sir, that my complaint was not that time had not been given to us to consider the matter. What I asked was that Senator Neild should state what particular clauses in the proposed report of the Standing Orders Committee he proposed to insert in substitution for those struck out. This is not . an ordinary amendment that we are asked to accept. The Bill, as originally presented, contained four clauses, two of which might be regarded as purely formal. Now we are asked to accept as amendments on this Bill several clauses which constitute a new Bill from preamble to imprint. It is usual for a Committee, when a Bill has been referred to it, to suggest alterations or modifications of some of its clauses, but in this case we have a completely new Bill submitted, and the report of the Committee also suggests a widening of the scope of the original measure.
– The honorable senator complains that the Standing Orders Committee did too much.
– No; I complain that the honorable senator in charge of the original Bill did too little. I am not seeking to obstruct the passing of the Bill, but I am pointing out my difficulty in dealing with it. I have risen for the second time to remind honorable senators, that we are asked to accept certain proposals which, so far as I can see, are entirely different in character and scope from those contained in the original Bill submitted to us.
– With reference to the remarks which have fallen from Senator Symon, I may say that when this matter was previously brought before the Senate bv Senator Neild, I slated ihi» attitude of the Government with regard to it. Senator Neild, some time last session, introduced a Bill to give effect to what is intended to be given effect to bv this measure. The Bill was then referred 10 the Standing Orders Committee. That Committee, /having considered the measure, brought up a report in connexion with it, which was circulated last session. Honorable senators then had before them the original Bill, a report of the Standing Orders Committee, and the form of the proposed new Bill. I explained that so far as the Government were concerned, they wished to see some legislation of tho kind on the statute-book, and, inasmuch as Senator Neild took up the matter in the first instance, and our Standing Orders Committee had reported upon it, the Government were prepared to leave the matter now in the hands of the Senate for its proper consideration. With respect to what shall be inserted in the gap caused by the elimination of clause 2, I confess that I am in somewhat the same position as Senator Millen. Senator Neild has intimated that he intends to adopt the clauses recommended in the Standing Orders Committee’s report. That is new to me, and I think we should ha.ve had some little notice of the honorable senator’s intention to change the form of his Bill in that way before we are asked to vote on the motion now before the Committee.
– I stated my intention a month ago.
– I have given some consideration and attention to the matter, and I was unaware that it was Senator Neild’s intention’ to do what he has proposed to do to-day. I do not think we should be asked to adopt the new clauses recommended by the Standing Orders Committee without a further opportunity being given to honorable senators to discuss the advantage or otherwise of substituting the Bill recommended by the Standing Orders Committee for that which is now before us.
– If the Standing Orders Committee had intrusted to any honorable senator the conduct of a Bill for an Act to give effect to its recommendations I could understand our present position. We should then be able to consider each of the proposed new clauses irc its proper order. We are now, however, being asked to adopt a clause recommended by the Standing Orders Committee in a Bill for an Act which is marked No. 2 on our files, and which was originally introduced by Senator Neild. We are, at the same time, being asked to discuss an amending Bill of seventeen clauses, as compared with the original Bill of four clauses, and which we see almost for the first time. I suggest to Senator Neild that if he is in charge of the proposed new Bill, on behalf of the Standing Orders Committee, he would do well to postpone it. We are being asked to deal now with an entirely new Bill, which we have not even read a first time. I think the proper proceeding would be to start de novo with the new Bill recommended by the Standing Orders Committee.
– That is only the honorable and learned senator’s customary attitude. 1
– I hope honorable senators will not allow a trifling matter to determine their action in connexion with this Bill. The second reading of the Bill was passed, and it was referred to the Standing Orders Committee, because there was a general impression that its provisions were inadequate. The Standing Orders Committee considered the Bill, with the advice of the parliamentary draughtsman. That officer drew up a Bill giving effect to the recommendations of the Committee, and it was then considered by the Committee and adopted as a part of their report. That report was laid upon the table some weeks ago.
– Ten months ago.
– But we are being asked to consider a new Bill.
– Honorable senators are splitting straws. It appears to me that the objection raided is whether Senator Neild should have the honour or distinction of introducing this new Bill. Is not that the sole point?
– That appears to me to be the objection on the other side, because an honorable and learned senator asked’ whether the Standing Orders Committee had intrusted Senator Neild with the conduct of the measure. The question for the Committee to consider is whether this would be a useful Bill to pass.
– Which Bill?
– The Bill proposed by the Standing Orders Committee.
– It has not yet been read a first time.
– After its second reading the original Bill was referred to the Standing Orders Committee.
– But what has come back to us?
– We have the Standing Orders Committee’s report on the Bill. Surely it does not matter which honorable senator moves these amendments on the original Bill, and it does not matter whether Senator Neild adopts that course or withdraws the original Bill, and brings forward the clauses recommended by the Standing Orders Committee in a new Bill ? I direct attention to the fact that it is advisable early in the session to determine the powers of Select Committees of the Senate. We have appointed a Select Committee which will probably be sitting shortly. Doubts have been raised as to the power of that Committee to take evidence. I do not personally believe that there is any ground for those doubts, but the passing of this measure will clear up all doubts on the subject, and will place the scope and powers of our Select Committees beyond all question. No honorable senator has yet said that he is opposed to the Bill, and I see no reason why we should not go on with its consideration in the way we have commenced. I appeal to honorable senators not to allow a mere matter of procedure to determine the postponement of the whole question, for that is what appears to be asked for.
– No, the presentation of the matter in a business-like form.
– We have the Bill before us, and I appeal to honorable senators, in dealing with it, to consider the clauses recommended by the Standing Orders Committee as they are submitted.
Senator Sir JOSIAH SYMON (South Australia). - Senator Pearce has either misapprehended the position or has failed to put the correct position before the Committee. I have heard no suggestion that Senator Neild should not have the distinction and privilege of conducting the Bill to a successful conclusion. I do not believe that any one entertains the slightest notion of interfering with the honorable senator in that respect. Personally I say, as I did last year, that I think that Senator Neild, having taken the subject up, should carry it to a conclusion. I hold very much the same view as Senator Keating. The Bill, as originally introduced by Senator Neild, was a short Bill of three or four clauses.
– I wish to take a point of order. The question before the Committee is the proposed new clause 2.
On that definite proposition it is not open to honorable senators to discuss the progress of the Bill from beginning to end. I take the point of order that it is not competent for honorable senators to discuss the whole Bill on a particular clause.
– The question before the Committee is the insertion of a proposed new clause. I think that honorable senators are in order in introducing arguments in favour of the postponement of the clause, on the ground that they have not had time to consider it; but they will not be in order in discussing the whole Bill.
– Of course, I was not doing so. Senator Pearce, in his remarks, referred to what would have been a very unkindly motive if it had actuated any one in speaking, on this question. The suggestion does not affect me, because I hope that Senator Neild will continue to conduct this measure to a successful conclusion. I was going to say that I agree very much with what Senator Keating has said on the subject. In saying that the Government should offersome guidance to the Senate in the matter, I had no intention to suggest that they should take up, or in any way interfere with Senator Neild in the conduct of. the measure. I ask honorable senators to look at the proposed clauses. If the new Bill is adopted, it will be one of the most penal enactments we could pass.
– I ask the honorable and learned senator to confine himself to the new clause.
– The reason for’ postponing the consideration of this clause applies to every one of the new clauses sought to be introduced. Senator Neild proposes practically to make of this a new Bill, and, so far as I am aware, he gave other honorable senators no intimation of his intention.
– I wish I had the letter which the honorable and learned senator wrote me when he was AttorneyGeneral, asking me to go on with the Bill.
– I. did not do anything of the kind.
– The honorable and learned senator is stating what is not a fact, and he knows it.
– The honorable senator is stating what he knowsto be without foundation.
– The honorable and learned senator knows that what he is saying is not true - a fact.
– I must ask Senator Neild to withdraw the statement that what Senator Symon is saying is not true.
– I did not intend to make it, and it will have been noticed that I corrected myself instantly.
– One does not take very much notice of what the honorable senator says. But now that he has referred to the subject, I may say that I wrote to the honorable senator-
– The honorable and learned senator denied that just now.
– I did nothing of the kind. I wrote to the honorable senator inquiring whether he proposed to avail himself of the standing order to resume the proceedings on the Bill he had introduced at the stage it had reached. But he never gave any intimation that he was going to adopt another Bill, as recommended by the Standing Orders Committee, with this title, “An Act relating to Parliamentary Witnesses,” in place of his own Bill, with the title, “ An Act relating to the taking of evidence by Parliament, or any Committee thereof,” and with provisions enabling persons to be arrested, and to be imprisoned for two years, in some cases for five years. Are we to pass provisions of that sort at a moment’s notice? It was for that reason I asked the representatives of the Government whether they had given consideration to the subject, and were prepared to guide the Committee as to the desirability of having these very severe provisions inserted. Because, if this Bill is to be enforced, it must be enforced by the Crown.
– Does not that apply to every measure which is passed ?
– Yes; but the representatives of the Government ought to be able to say whether the imprisonment proposed is too great or is not great enough. Senator Keating has very properly said that he would like further time to consider the matter, and no one can deny that that is a very reasonable request. The original discussion which took place last year was as to whether we had not all these powers by virtue of the Constitution. It was suggested that a doubt had arisen. You, sir, interjected when I was speaking, “ Has the Attorney-General any doubt?” and’ I said -
I cannot say that I am oppressed with any great doubt on the subject.
In point of fact, I have no doubt whatever that the whole of these powers are enjoyed under the Constitution. But if it is desirable to remove the doubt, unquestionably this Bill is a perfectly proper one to be introduced. The question is, are we to enact, in place of a Bill of three or four clauses, a Bill of seventeen clauses, containing penal provisions of a very drastic and severe order? The Committee certainly ought to have an opportunity to consider these proposals, now that it is intimated that they are to be inserted practically en bloc, before we seek to place them on the statute-book.
– I listened to a second-reading speech on a short Bill without apprehension of any wrong arising out of its provisions ; but now we are asked to accept a Bill with eighteen stronglyworded clauses affecting the liberty of the subject, without any information having been afforded. Surely a second-reading speech should be made when we are asked to pass an entirely new Bill, lock, stock, and barrel. I have not the least objection to Senator Neild getting the credit of introducing a Bill of this vast importance, but I should much prefer that it was introduced by the Government. At any rate, the Government should be sponsor to the Bill, if not its actual father. We are asked to take a departure from parliamentary procedure.
-The best thing we can do is to get on with business. This Bill was introduced last year by Senator Neild, and after it was debated and read a second time it was referred to the Standing Orders Committee. Since the presentation of its report ample opportunity has been afforded to honorable senators to make up their minds, but now, apparently, for some reason or other, they do not feel inclined to go on with the Bill. I do not see what they can have to cavil at. The amendments suggested by the parliamentary draftsman can be embodied in the Bill.
Senator Lt.-Col. NEILD (New South Wales). - Merely to show that there has been no surprise sprung on the Committee, that honorable senators have had every opportunity not only of pursuing the proposals of the Standing Orders Committee, but of knowing my intention, explicitly uttered here, I propose to refer to what I said exactly four weeks ago. I said -
I move -
That this Senate resolve itself into Committee of the whole to consider the Parliamentary Evidence Bill.
I understand that the amendments which have been proposed in this Bill by the Standing Orders Committee, and which are fairly extensive, have only very recently been received from the Government Printer. What it is proposed to go into Committee to consider is really the report of the Standing Orders Committee. The revised copy of the Bill, however, has not been circulated sufficiently long, I think, to enable the Committee to usefully proceed this afternoon. Therefore, I only propose to go into Committee formally to enable the report of that body to be received, and possibly to pass the first clause of the Bill, so that honorable senators may have full opportunity to consider the amendments proposed.
What would have been thought of me by honorable senators, who were clamouring against proceeding with the measure, if, in face of the recommendations of the judicial tribunal of the Senate who prepared a number of elaborate machinery details, I had chosen to come here and sweep all their recommendations on one side, and set up my individual clauses in preference to theirs? That is what Senator Clemons is girding at. ,
– We are suggesting that the honorable senator should do just the opposite.
– The honorable and learned senator is girding at me because I am willing to accept the clauses drafted by that judicial tribunal in preference to my own. The question as to who is to have any satisfaction from the passing of the measure is a small matter. Because if any one seeks for kudos as to its origin, the whole Senate has not the power to take from me the satisfaction of knowing that I initiated the measure. If honorable senators simply choose, by some very unusual process which I do not, for, an instant, suppose any decent majority here would propose to do, to take the measure out of my hands, they are welcome to take that course. They will only be dancing to my original fiddling. If Senator Clemons wishes to dance to my fiddling, let him do so ; I shall be perfectly satisfied. I do not choose to take up this attitude of personal interest, but I do submit that it is utterly unfair that, when I have followed out a strict course of agreement with the wishes of the majority and am simply, asking the Committee to consider an individual clause containing no penalty, but only interpretations prepared by the Standing Orders Committee, I should be met with accusations of a character which are rather unusual to be used in Parliament with reference to one occupying such an absolutely clear position as I do.
– What are the accusations ?
.- NEILD.- The honorable senator is too good a member of the Chamber to make any accusation, and I do not refer to him. I am sure he would rot do such a thing.
– I do not think I heard any accusations made.
– Senator Symon wishes to know what the actionof the Government is in this matter. It is a most extraordinary thing that, when I am willing to adopt the recommendations of the Standing Orders Committee I should be girded at and brow-beaten to go on with my own clauses, and not those prepared by what I am willing to recognise as a wiser tribunal than that of any single intellect. The Minister representing the Government in this matter made this statement to the Senate on the 27th July -
The course which Senator Neild proposes to follow meets with the concurrence and support of Ministers, namely, to have the Bill and report now remitted to a Committee of the whole Senate ; but, inasmuch as the suggested amendments and the report of the Standing Orders Committee have not been printed sufficiently long to enable honorable senators to acquaint themselves with all particulars, it is thought best that after the consideration of one or two of the minor clauses this afternoon progress should be reported, and the consideration 0? the Bill in Committee should be resumed at a convenient date.
I named a date a whole month ahead, and now I am accused of something like an attempt to spring a surprise on the Committee. If honorable senators, after having the report of a Standing Orders Committee placed in their hands four weeks ago, choose to come here and plead ignorance of the document, they are making a confession, either of personal carelessness, or of intellectual incapacity, which they would be the first to resent if any one ventured to address such a suggestion to any one of them. I do not. I do not think that honorable senators are ignorant of the details of this matter. But I do think that something, that occurred last night accounts for the sudden forgetfulness.
– Did the honorable senator do anything wrong last night?
.- I think that my venerable friend’s own experience, and his knowledge of my character, should be a sufficient answer to that question.
SenatorKEATING (Tasmania - Honoraiy Minister). - Before Senator Nield turned up the reference to my remarks when this Bill was last before honorable senators, I had referred to them. I find that what he proposed to do was to get the Bill into Committee, in order that we might consider it as it stood in conjunction with the amendments recommended by the Standing Orders Committee. I, on behalf of the Government, expressed their concurrence in that course, and indicated that it was not intended to go any further with the Bill on that occasion, in order that honorable senators might have an opportunity to consider the recommendations. The attitude of the Government is an indorsement of the recommendations of the Standing Orders Committee. We were prepared to accept a Bill of the character recommended. The subject had been considered by the Government. The adjournment that was suggested after the disposal of the first clause was to enable honorable senators to acquaint themselves with what was proposed. If Senator Neild proposes to confine himself to the consideration of the Bill as originally submitted, and to the amendments recommended by the Standing Orders Committee, I do not think that I should be adhering to the attitude previously taken up if I opposed him.
Senator MILLEN (New South Wales). - I think that it is a matter of considerable regret that when any matter, even of so apparently innocent a character as this, comes before the Senate, one is not able to voice an objection, either to the measure itself, or to the procedure proposed to be adopted, without being met by suggestions as to motives, such as Senator Pearce ventured to make, or by open discourtesy, such as that of which I complain, on the part of Senator Neild. Speaking with his back to me, Senator Neild made some reference to a document which he was about to quote. Not being able to hear, I asked him what it was that he was quoting.” The Committee is aware of the answer that he gave. If we have reached a stage in debate when an honorable senator cannot ask another to name the document from which he is quoting, without’ receiving a discourteous reply, it indicates a deplorable condition of feeling which is not likely to conduce to the smooth and satisfactory transaction of public business. I will leave Senator Pearce to deal with his insinuation as to motives, merely asking him whether it is not a sudden liking for Select Committees which has led to this community of interest between himself and the honorable senator in charge of the Bill. One of the objections which’ I see to the procedure proposed is this: Senator Neild proposes to strike out two clauses in addition to the one which has been negatived. In doing so we shall negative certain propositions. He proposes to ask us to adopt certain clauses in substitution. Thereby he asks us to reaffirm the same propositions as we shall have previously negatived. Now, without claiming to have an intimate knowledge of the Standing Orders of the Senate, I do not think that that can be done.
– Is not that splittingstraws ?
– I suppose it is always splitting straws when an objection is made to a course which the honorable senator wishes to have taken. We have struck out a proposition to the effect that evidence may be taken on oath. Senator Neild now wishes us to affirm a clause containing the principle that evidence may be taken on oath. I submit thatit is not possible to affirm a principle one moment which we negatived a few moments before.
– I rise to order. The question before the Committee is the insertion of new clause 2, and that clause is not in conflict with anything that has been struck out. Therefore, the honorable senator cannot apply the objections he mentions to the clause proposed to be inserted.
– What we are doing is to strike out a clause affirming a certain principle, and Senator Neild has intimated that later on he. proposes to move the insertion of another clause affirming the same principle. It seems to me that either we must throw aside our Standing Orders, or must carry; them out, in which case the only course will be for Senator Neild to withdraw the Bill at this stage, with a view of introducing another one.
– I have already indicated to Senator Neild, when he proposed to strike out a number of clauses, that standing order 195 provides that no clause or amendment shall be at any time proposed which is substantially the sarnie as one alreadynegativedbytheCommittee.But
Senator Millen is wrong in supposing that there is anything in this proposed new clause which is in conflict with a clause that has been negatived.
– I was referring tei clause 11.
– It will conduce to the speedy transaction of business if we deal with clauses as they arise. Clause 2 has been struck out, and it is proposed to insert a new clause. When we reach clause ii, if we have already struck out a clause which embodies the principle contained in clause 11, Senator Millen can take a point of order.
– I submit that this is not the time for the insertion of new clauses in the Bill. If Senator Neild assures us that clause 2 in the Bill, as prepared by the Standing Orders Committee, is to be in substitution for clause 2 in the Bill introduced by him, I have nothing more to «ay. But if, as I gather, there is to be a new clause, I submit that this is not the time to deal with it.
– It was our practice prior to the adoption of the present Standing Orders to take new clauses after all the clauses as printed had been dealt with. But since the present Standing Orders have been in operation it is in order to take clauses as printed and proposed new clauses in their order. .
– Can a new clause be taken now?
– I wish to know whether you .rule >that paragraph 1 of standing order 192 means that we can take clauses, as printed, and proposed new clauses sandwiched in with them, or whether the proper procedure is not to deal with printed clauses first and proposed new clauses subsequently?
– The practice has been, since the adoption of the new Standing Orders, to take new clauses in their order as proposed, and not to wait until the whole of the clauses of the Bill have been dealt with. The point has been taken on several occasions, and rulings have been given to that effect.
-Col. NEILD (New South Wales). - As I apparently misunderstood Senator Millen in regard to the question which he put to me a little while ago, and, owing to the misunderstanding, replied with an asperity that the circumstances did not warrant, and which our personal friendship one for the other would warrant still less, I offer to him in the freest manner possible the expression of my great regret that I misunderstood him, arid made a reply that was unworthy of myself.
– After that, the honorable senator must get his Bill.
Proposed new clause agreed to.
Clause 3 -
The President of the Senate, the Speaker of the House of Representatives, and the Chairman or member presiding at any sitting of any Committee of the Senate or of the House of Representatives shall each have authority to administer oaths or affirmations to witnesses.
– Is it proposed to retain clause 3 ? If so, what becomes of clause 3 in the recommendations of the Standing Orders Committee ?
– It will not be necessary to strike out. clause 3, but simply to amend it so as to make it conform with the recommendations of the Standing Orders Committee, that the oath should be administered by the Clerk. We might so amend the clause as to provide that, instead of the President or Speaker administering the oath, the Clerk or the Chairman of the Committee should “do so.
– Strike out all the clause, and then propose the provisions recommended by the Standing Orders Committee.
.- There is a difficulty about taking that course under standing order No. 192. To act on the suggestion of the honorable senator, the Bill would have to be recommitted.
– Then recommit the Bill.
– I am quite willing to adopt that course. I ask the Committee to negative clause 3.
– If Ave start amending clauses we shall only give rise to great confusion. Senator Neild gave the Committee to understand that he would ask us to strike out the remaining clauses, with a view to considering the clauses recommended by the Standing Orders Committee.
– I suggest that it would be much better if the House were to resume, and Senator Neild were to seek the assistance of the officers of the House in nutting the Bill into the form, in which he asks the Senate to deal with it, showing in red ink the suggested amendment. We do not seem to be proceeding now in the right way to legislate on an important matter of this kind. I make the suggestion with a view, as I said last year, of removing a doubt which exists as to whether Committees of Parliament have, under the Constitution, power to administer an oath. I ask Senator Neild. in the most good- humouredway. to adopt the course I have indicated, and I shall be glad to afford him any assistance, which, it would appear, the Government are not inclined to extend.
Senator Lt.-Col. NEILD (New South Wales). - I accept Senator Symon’s suggestion - tendered in a humorous spirit - as. one of the most cheerful I have ever had offered for my acceptance. But as all that the honorable and learned senator desires may be accomplished by a certain number of honorable senators simply saying “ no” to the two clauses as they are submitted,, I do not feel I should be justified in burdening any one in theway suggested. If Senator Symon will say “no,” he will, as I say, achieve his object, and I shall be happy to join the honorable and learned senator in the pleasant duo.
Clause 4 negatived.
Senator Lt.-Col. NEILD (New South Wales). - There now remain the title of the Bill and clauses1 and 2, and I propose to submit clause 3 as recommended by the Standing Orders Committee. The Bill, as originally drawn, was in strict accord with the Act controlling the British House of Commons, and was settled by the parliamentary draftsman at my request. The new clauses submitted are an elaboration of the British Act : and I hope that now we shall proceed with the consideration of the measure with reasonable celerity. I move -
That the following proposed new clause be inserted : - “3. (1) Either House may summon witnesses to appear before it to give evidence and produce documents.
Any Committee, if thereto authorized by the Senate or the House of Representatives, as the case may be, may summon witnesses to appear before it to give evidence and produce documents.”
Senator Sir JOSIAH SYMON (South Australia). - Is there any precedent for the first sub-clause, which appears to me to be derogatory to the power of Parliament? There has always been power on the part of Parliament to summon witnesses; and this provision would appear to reduce a legislative . House to the level of an ordinary court, which may require power to sum mon witnesses to be given to it. If there had been a precedent for the first subclause, I have no doubt the fact would have been stated in the margin, as in the case of the second sub-clause. I . take no responsibility for this provision, nor does Senator Neild himself.
– Senator Symon must take some responsibility, because he was a member of the Standing Orders Committee, who made the recommendation.
– The honorable senator is entirely mistaken.
– Then I beg the honorable and learned senator’s pardon.
– Which I at once grant; but I ask the honorable senator not to be so ebullient in temper when he thinks some one else has made an error.
– Senator Symon’s name appears as a member of the Standing Orders Committee.
– I have the honour to be a member of that Committee now, but I was not a member when this matter was considered. Had I been in office, I should have done as I did last year - I should have given the matter careful and detailed consideration, and suggested any amendments I thought would improve the measure. I now make the suggestion that the clause is derogatory to this Parliament, and ask whether there is any precedent for such legislation.
– I think the honorable and learned senator will find a precedent in the Act” of Parliament which was passed to give the House of Commons this power.
Proposed new clause agreed to.
Amendments (by Senator Lt.-Col. Neild) agreed to -
Thatthe following proposed new clauses be inserted : - “4. A summons to a witness may be in accord ance with Form A in the schedule, and shall be signed by the President, or by the Speaker, or by the Chairman, as the case may be.” “5. A summons to a witness may be served upon the witness either personally or by being left at or sent by post to his usual place of business or of abode.” “6. - (1) If any witness, upon whom a summons under this Act has been served, fails to appear or to continue in attendance in obedience to the summons, the President, or the Speaker, as the case may be, may issue a warrant for his apprehension.
The warrant may be in accordance with Form B in the schedule, and shall authorize the apprehension of the witness, and his being brought before the House or the Committee, and his detention in custody for that purpose until he is released by order of the President, or the Speaker, as the case may be.
The warrant may be executed by the person to whom it is addressed or by any person whom he appoints to assist him in its execution, and the person executing the warrant shall have power to break and enter any building, place, or ship for the purpose of executing it.”
Amendment (by Senator Lt.-Col. Neild) proposed -
That the following proposed new clause be inserted : - “ 7. Any witness who, being apprehended by virtue of a warrant of apprehension issued under this Act, escapes from custody, shall be guilty of an indictable offence.
Penalty : Two years’ imprisonment.”
Senator Sir JOSIAH SYMON (South Australia). - I should like to ask what court will have jurisdiction to deal with offences under this clause?
Senator Lt.-Col. NEILD (New South Wales). - I think the courts to deal with offences under the laws of the Commonwealth are already provided for.
– Not courts for criminal offences.
Senator Sir RICHARD BAKER (South Australia). - This matter was considered by the Standing Orders Committee, and I was in doubt myself as to what courts would deal with offences under the Bill. The parliamentary draftsman considered the matter, andI think, though I am not quite sure, that he consulted the AttorneyGeneral.
– No, he did not.
– I think the honorable and learned senator was not Attorney -General at that time last year.
– I was AttorneyGeneral when this Bill was before us.
– At any rate, the Parliamentary Draftsman appeared ‘before the Standing Orders Committee, and told us that he did not think it was necessary to indicate what courts could try offences under the Bill. As I say, I have some doubt, and I raised the question; but it is such a long time ago that I forget the reasons - though reasons were given - on which the parliamentary draftsman based his opinion.
Senator Sir JOSIAH SYMON (South Australia). - It is very difficult, as the President would be the first to acknowledge, to determine a matter of this kind, and I should be sorry to give an opinion offhand.
The same difficulty which Senator Sir Richard Baker has suggested occurs at once to any one who looks at the clause. The High Court, for instance, has no jurisdiction at present, and, unless there is some other mode of dealing with offences, the matter requires elucidation. I point out, however, that this Bill, if passed, will, probably give rise to a good deal of litigation, when an opportunity will be presented of determining this very important question.
Proposed new clause agreed to.
Senator Lt.-Col. NEILD (New South Wales). - I move -
That the following proposed new clause be inserted : - “8. Whoever assaults, resists, molests, or obstructs any person in the execution of a warrant of apprehension issued under this Act shall be guilty of an indictable offence. . . .
Penalty : Three years’ imprisonment.”
I am already on two Committees of the Senate, but I am not, and have not been, a member of the Standing Orders Committee. I, therefore, have no knowledge of the proceedings of that Committee. If any question should arise on these clauses, I shall be grateful to the President, or to any member of the Standing Orders Committee, who can throw any light upon it. I admit that it is of no use to appeal to me as . to why the Standing Orders Committee have recommended certain provisions, because I do not know.
– We really have arrived at a most extraordinary stage in the consideration of this Bill. I do not blame Senator Neild for saying that he is not here to answer a Question as to what Courts shall deal with these matters.
– It is not a question of a Court; it is a question of apprehension.
– There is a penalty of three years provided, and I presume that that cannot be imposed without the interference of some Court. If Senator Neild can indicate the Court which will deal with these offences, I shall be glad if he will do so. Senator Baker l as informed the Committee that the parliamentary draftsman told the Standing Orders Committee that, in his opinion,it was not necessary to indicate the Court. I think it is most necessary. At the same time, I think it is quite impossible. I hope that Senator Baker will be able to give some reason why the Standing Orders Committee have recommended the adoption of penal clauses, which must be quite futile.
Senator Sir RICHARD BAKER (South Australia). - It is a long time since the Standing Orders Committee considered this matter, and I do not pretend to recollect everything that took place. I do remember that I raised the question as to what Court should be competent to try these offences, and I pointed out that the Commonwealth Judges had no criminal jurisdiction. The parliamentary draftsman attended, ami convinced the Standing Orders Committee that I was wrong, and that State Courts, or the Supreme Court of the Commonwealth, could try these cases. Whether that contention is right or wrong, I am not now prepared to say, but we were convinced at the time, and if is too much lo ask me what arguments were used by the parliamentary draftsman ten months ago to convince the Standing Orders Committee. If there is any doubt on the subject, it would, perhaps, be as well to get the opinion of the Attorney-General. ‘ I should not take the responsibility of saying that a Court need not be indicated, because I had doubts on the subject before, and raised the question. As I have said, we were convinced at the time by the parliamentary draftsman that my doubts were not well founded.
Senator CLEMONS (Tasmania). - I suggest that the best course to pursue in the circumstances is to postpone the clause. I am sure that Senator Neild will not ask the Committee to rush this clause through after what we have heard from Senator Baker.
– In all fairness to honorable senators, if Senator Neild did not know anything about the reasons for the proposed alterations in this measure, it was his duty to get that information from the Standing Orders Committee. As a layman, I am trying to worrythrough the real meaning of these clauses, and I must look to Senator Neild, as sponsor for the Bill, for information. When the honorable senator admits that he does not know why certain alterations are suggested, he should at least name some member of the Standing Orders Committee who can give the information which he is himself unable to give.
– I have always had the impression that it was competent for the Commonwealth Parliament in its legislation to define certain statutory offences which were not in existence prior to the establishment of Federation.
– It has done so in the Customs Act.
– And that every Court in a State which would be capable of taking cognizance of common law or State statutory offences of a similar character would not only be capable, but would be bound, when necessary, to take cognizance of offences that were created by the Commonwealth statute. We must always bear in mind sub-section XXXIX of ‘section 51 of the Constitution, under which it is provided that the Parliament shall, subject ro the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to-
It is a very well-known principle of jurisprudence, and I might almost say it is the fundamental principle of jurisprudence, in connexion with legislation, that all legislation to be effective must have some sanctions attached to it, some prospect of penalties or punishment held out by the law, and backed up by the strong arm of the law,, to compel adherence on the part of everybody to the provisions of such legislation.. If we have power to legislate in any particular direction, we have power also torender our legislation effective by providing adequate sanctions. We have power to provide the way in which parliamentary evidence shall be taken, and incidental tothat power we have the necessary power to compel the observance of that legislation.
– If we have power to impose a duty, we have power toenforce the performance of that duty by imposing a penalty.
– What Court will impose this penalty?
– Any Court in the Commonwealth capable of dealing with an indictable offence. The covering section 5 of the Constitution provides that -
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State.
I think that is intended to impose upon the Courts of the( States, and of every part of the Commonwealth, the necessity of regarding, recognising, and acting under Commonwealth laws. If we provide that a certain thing shall be an indictable offence, any one who has committed, or is alleged to have committed, that indictable offence in any State of the Commonwealth can be prosecuted as he would ordinarily be prosecuted in a State matter in relation to common law, or in respect of a State statute matter, which was the subject of indictment. We provide simply that in certain circumstances a person shall be guilty of an indictable offence, and he can then be prosecuted in any Court of the State in which he is that has power to take cognizance of indictable offences, and can be dealt with in accordance with the procedure of that Court in respect of all indictable offences. We have that full power, and if we could not throw upon the Courts of the States the obligation to give effect to Commonwealth provisions in respect to indictable offences, we should find ourselves hampered and crippled in the exercise of almost all the powers given to us under the Constitution.
– The question is not whether we have power, but whether we have taken legislative means to give effect to our enactment. Wehave done so in civil cases, but have we done’ so in criminal cases ?
– As soon as we provide that a certain thing shall be an indictable offence we create an offence punishable by proceedings on indictment. Having done that, every Court of a State competent to take cognizance of such matters at present, is, by the covering section 5 of the Constitution, competent to take cognizance of this indictable offence when brought before it.
– The law officers think that no particular section is necessary to confer this jurisdiction.
Senator Lt.-Col. NEILD (New South Wales). - As we have already passed clause 7, providing for a penalty, it does not appear to me that we need stop now. But I make a definite promise that I shall institute full inquiries into this matter- - other honorable senators may do the same if they please - and if, at a later stage, it should seem in any way desirable to re-discuss clauses 7 and 8, I shall be quite willing to consent to a recommittal of the Bill for that purpose.
Senator MILLEN (New South Wales).I have a word or two to say on the penalties proposed. It appears to me that in the preparation of Bills for the Commonwealth we have in every case adopted the maximum penalty for an offence which prevails anywhere. Honorable senators will notice from the marginal notes of the clauses in the report of the Standing Orders Committee that this legislation is not based on the legislation in any particular place. The Committee would appear to have jumped from Canada to Queensland, and have in every case adopted the highest penalty. If Canadian legislation suggests the highest penalty, they have copied the Canadian legislation, and if Queensland or New South Wales legislation proposes a higher penalty for some particular offence, they have adopted the Queensland or New South Wales provision.
– It is merely a maximum penalty in every case.
– I quite recognise that, but I am referring to the tendency in our Commonwealth, legislation to make penalties as high as possible.
– What is the penalty in New South Wales! for this offence?
– Seven years.
– I do not think it is. I think that the only corresponding enactment that we have in New South Wales is the Royal Commissions Act, and there is no seven years penalty provided for in that Act.
– I think there is in the Parliamentary Evidence Act.
– I suggest to the honorable senator in charge of the Bill that the maximum penalty proposed for an offence of this kind is too high. I venture to say that if we take the Acts passed by the several Parliaments, we shall find that the penalties imposed by them for such offences exceed those imposed by the legislation of any other civilized country.
Senator Lt.-Col. NEILD (New South Wales). - Three years does seem to be a very high maximum penalty, and I am willingto reduce it.
– In the original Bill the honorable senator proposed a penalty of five years.
– That was. for perjury..
– It was for quite adifferent offence.
– If we are on the side of mercy, I am sure we shall have the support of Senator Guthrie.
Senator SIR JOSIAH SYMON (South Australia). - I think that Senator Neild will be disposed to reduce the penalties when he is reminded that this offence is somewhat similar to the ordinary offence of resisting the police, which is dealt with by a police magistrate, and a penalty - usually a monetary one - is inflicted according to the degree of resistance.
– A fine of £20 or ;£3°-
– The penalty may be imprisonment for a week or a fortnight or a month. It is not desirable to cover the statute-book with offences, and make things criminal which contain no criminal element. The committing of offences is bad, and necessarily the arm of the law should extend to them and punish them. On the other hand, there is nothing more to be avoided in legislation than “creating new offences and attaching heavy terms of imprisonment to them.
– What does the honorable and learned senator suggest?
– The resisting of the police, or the resisting of a warrant of apprehension, ought not to be made an indictable offence, but an offence punishable on summary conviction before a police magistrate. In the preceding clause, the expression used is “ escaping from custody,” not “escaping from custody without reasonable cause.” The escaping from custody may have been unintentional. Wc cannot ‘ expect laymen like Senator Neild to be familiar with all these matters. I merely call attention to them because we know that “ resisting the police “ is an offence usually punishable on summary conviction. No doubt a Judge who was trying a case under this provision would tell the jury in certain circumstances that the offence was contemptible, and the charge ought not to have been brought, but still the jury would be entitled to return a verdict of guilty, and so brand the man as a convicted felon, when, perhaps, what he did was, after all, verv venial. I invite Senator Neild not to take the Bill out of Committee this evening, but to consider whether these offences mav not be treated like the ordinary offence of resisting the police, punishable on summary conviction.
Senator Lt.-Col. NEILD (New South Wales). - There is so much in what has been urged by Senator Symon, that I am rather inclined to agree with him. I have seen a Serjeant-at-Arms resisted in a Legislative Assembly.
– But this is a case of assaulting a person.
.- Well, I have seen an assault committed on a SerjeantatArms. A man can commit an assault on a person by merely pointing a loaded rifle at him, although he is 1,000 yards away. Perhaps the Standing Orders Committee erred on the side of severity in this matter. As a layman, I am not sufficiently acquainted with the intricacies of legal procedure to instantly suggest the phraseology of an amendment which would bring this particular offence into the category of an offence punishable on summary conviction. If Senator Keating cannot supply me with the words of an amendment, I would ask the Committee to postpone the clause.
Senator Sir RICHARD BAKER (South Australia). - Before the clause is postponed I would ask honorable senators to consider the position of the Senate. It is suggested that if a warrant is issued by the Senate, it may be’ set at naught, that a person may obstruct the officer intrusted with the execution of a. warrant, and that only a small offence will thereby be committed. I take the view that the position of the Senate is such that it ought fo enforce its power and authority by severe punishment. I am not wedded,, to a term of three or two years,_but I submit that we ought not to bring the Senate down to the position of a police magistrate.
Senator Sir JOSIAH SYMON (South Australia). - I think that Senator Baker has entirely misunderstood what I said. I did not say or suggest for a moment that the Senate should be brought down to the position of a police court. What I do say is that the dignity of the Senate does not require to be supported by creating indictable offences, and making a man a criminal, liable to be placed in the dock, simply because he may have technically obstructed the execution of a warrant for his apprehension.
– In that case the criminal Is made, not by the Senate, but by himself.
– Surely a penalty can be -imposed which does not require a man to be charged with a criminal offence, and branded as a felon. “ Obstructing the execution of a warrant “ is, I repeat, simply “ resisting the police.” The warrant will not be executed by the Senate, but by an executive officer, probably a policeman. If there is a resistance of a constable, that surely is punishable in a Court of summary jurisdiction. What I object to is that the Senate should make (that act an indictable offence, however venial it may be. In this country we ought not to be so ready to create indictable offences punishable by imprisonment. Of course it may be said that the dignity of the Senate requires thai no ordinary penalty should be inflicted, but that we ought either to give a year’s imprisonment or go back to the time of the Inquisition and satisfy our dignity by handing the man over to the rack’ and the thumb-screw.
– Do not exaggerate.
– It is only a question of degree.
– Cannot the honorable and learned senator leave that to the Court? It will discriminate.
– I am quite willing to leave the matter to the Court, but we are asked to say that it shall be an indictable offence. Let us look at the next clause -
Whoever, by act or omission, dissuades or prevents any witness from obeying a summons under this Act shall be guilty of an indictable offence.
T cannot understand how you can, by omission, dissuade a man from attending, but still there it is provided in the clause. I am not responsible for the Bill, and 1 merely take the liberty of pointing out these matters with a view to making it sensible, and preventing the Senate from becoming a laughing stock.
– It might be by omitting to deliver a notice.
– Of course no one can tell what the clause does mean ; but I shall accept that as possible. If a man omits to serve a notice to produce some books is that to be an indictable offence? Surely not! What Senator Neild said is very reasonable, and I am sure he will have the assistance of Senator Keating to prepare suitable amendments. He shall have any assistance I can give him.
Senator KEATING (Tasmania- Honorary Minister). - In my opinion the expression “ indictable offence “ in these clauses is open to some criticism. The Acts Interpretation Act of 1904 does not contain a definition of what the term was deemed to include, but section 27 of the Acts Interpretation Act of 1901 says -
In any Act unless the contrary intention ap. pears -
The word indictment shall include information.
In some States, for instance, in Tasmania, the Crown never prosecutes for a criminal offence bv indictment, but by what is called a criminal information.
– That does not alter the character of the offence.
– No; but the Act of 1 901. makes express provision to include “ information “ in “ indictment.” It might be argued from that fact that the word “ indictment,” or any adaptation of the idea of indictment, is always to carry a similar idea in connexion with “ information “ ; there is a rule of construction which provides for that. But where an Act constitutes an offence, and the liberty of the subject is involved, it always receives the most strict interpretation - as strict as possible against the Crown, and as favorable as possible to the accused. It might be argued that although we had constituted a thing an indictable offence in a certain State in which informations took the place of indictments, it would not be an offence that could be dealt with in its Courts. This matter came under my notice a little while ago, after we had provided in the Wireless Telegraphy Bill for a very heavy maximum penalty. Senator Millen raised a criticism, as to its imposition. Having inserted a very heavy maximum penalty, which carried with it the alternative of imprisonment, I brought down a new clause, which I would recommend to Senn tor Neild as She form of a clause which would meet all these cases and perhaps satisfy the criticism of Senator Symon. It reads in this way -
Proceedings for any offence against this Act may be instituted in any Court of summary jurisdiction, and any person proceeded against under this section may be dealt with summarily, or may be committed for trial.
If that provision, with necessary alterations, were adopted, it would be competent .for the prosecuting officer to prosecute, in the first instance, in a Court of summary jurisdiction, and if that Court considered that the circumstances surrounding the alleged offence were so trivial as not to warrant the infliction of punishment above its maximum powers, in accordance with the Acts Interpretation Act, it would proceed to deal summarily with the man. But if the circumstances of the case disclosed an offence of such great gravity that it deserved very severe punishment, then the Court could exercise its option of dealing with the man there and then, or sending him on for trial. Honorable senators will notice that in clause 8a of the Wireless Telegraphy Bill I did not adopt the words of the Acts Interpretation Act, “ may be prosecuted on indictment,” but used these words “ may be dealt with summarily, or may be committed for trial.” If Senator Neild, after providing for his penalties, would provide that Ohe proceedings in respect of any offence may be instituted in a Court of summary jurisdiction, I think it would meet the case.
Senator Lt.-Col. NEILD (New South Wales). - I understand that Senator Keating practically suggests the omission of the word “indictable,” and at a later stage in the Bill proposes the insertion of a provision similar to that in the Wireless Telegraphy Bill, which should meet with the approval of Senator Symon. If the offence is trivial it can be dealt with summarily. If it is a grave offence, the person can be committed for trial at the discretion of the magistrate. That is a wise proposal, and I should be very glad to see it inserted. I am prepared to. move that the proposed new clause be amended by leaving out the word “ indictable,” and by leaving out the word “ three,” with a view to insert in lieu thereof the word “one.”
Senator MILLEN (New South Wales).It appears to me that not only should the term of imprisonment be reduced, but that there ought to be an alternative money penalty. Some of the offences might be of such a trivial character that they would be met by the imposition of a small fine. What the amount should be I am not in a position to state. Perhaps ^20 would be sufficient. If Senator Neild will agree to amend the clause in that direction I shall be satisfied.
– I agree to that.
Senator CLEMONS (Tasmania). - I remind the Committee that we have passed a Royal Commission Act, under which the penalty is £$0. I therefore hope that Senator Neild will consider the wisdom of abolishing the term of imprisonment altogether, and substituting a money penalty.
Senator GUTHRIE (South Australia).I hope that Senator Neild will not give way an inch in the direction suggested. It would simply mean that the man who had money need not go to gaol, whilst the man who could not pay a fine would have to be imprisoned. That would be class legislation in favour of the rich. Who is the man who would be likely to refuse to give evidence before a Select Committee? He who had something to hide, and would probably have been making money by improper practices. A fine of £50 or ,£100 would be nothing to such a man. I trust that we shall adhere to the Bill as drafted by the Standing Orders Committee, who have thoroughly considered the subject. This amendment has been asked for by some who represent the wealthy portion of the community, and who wish to shape the Bill to suit them.
– Does not the honorable senator represent the wealthy portion of the community?
– I endeavour to represent all classes, and to do justice to all. To insert a money penalty in a Bill of this character is not to do justice to all classes, because it means that the man who cannot pay £25 has to go to gaol. I would make no exception. If a man breaks the law, let him suffer for it, and let the same penalty be incurred whether he is rich or poor.
– The honorable senator wants to have imprisonment for the well-to-do man and a fine for the poor man. ‘
– I do not. I have expressed the verv opposite opinion. I would serve all alike. What is the use of fining a poor man £20 ? He has not got the money, and must go to gaol.
– Has the honorable senator overlooked the fact that for a second offence a person may be imprisoned ?
– If a man commits an offence a second time it is right to imprison him. Witnesses from all sections of the community are examined by Select Committees. A witness may have been making large sums of money out of the very practices about which he is to be examined by a Committee. Take some of the cases inquired into by the Butter Commission in Victoria. Some of the men were making piles of money out of secret commissions.
– And1 refused to produce their books.
– It would be quite easy for a man of that kind to pay a fine of .£500, and still have a large credit balance.
-Col. Neild. - I propose to reduce the three years’ imprisonment to one year, and in the next clause to provide for a penalty of ^50 as a maximum. The amount of fine actually inflicted might be only 5s.
– That is what I protest against. The honorable senator proposes to regard a fine of ^50 as equivalent to imprisonment for twelve months. The man who can raise ^50 is to receive no more trouble, but the man who cannot afford £50 must go to prison. That is most unfair.
– Can the honorable senator give us an illustration of what he means ?
– Take the case of the Machine Shearers’ Union in New South Wales. That bogus union absolutely refused to allow its secretary to appear before a Royal Commission, and special legislation had to be passed to deal with the matter. Suppose a Select Committee of the Senate sits, witnesses are summoned, and on the day of meeting a witness does not arrive. The members of the Committee will have been brought from all parts of Australia at great inconvenience and expense. What is to be done with a person who assaults the official sent to serve a warrant of the Senate?
– Supposing a person obstructs by lying down, and saying that the officer must carry him ?
– Such a person is resisting the execution of the warrant. I heard Senator Symon, in a case where a man had said to the police, “ What a shame to arrest that man.” describe that as resistance deserving of the highest penalty under the law.
– Where did the honorable senator hear me say that?
– At Port Adelaide, I had to pay the man’s fine, so that I have reason to remember the case.
– I do not lemember the case.
– According to Senator Guthrie’s doctrine, such a man ought to go to gaol without the option of a fine.
– In my opinion, a man who assaults an officer of the Senate assaults the Senate, because he is defying an order of the Senate.
– Cannot the honorable senator imagine a case of obstruction which might be met by a fine of five shillings ?
– I do not think a monetary fine would meet a case of the kind.
– Then trie honorable senator would always punish by imprisonment ?
– Yes, in cases of that kind.
– The honorable senator would always punish by giving two years’ imprisonment ?
– I have not said anything of the kind. What I say is that some men have plenty of money, and to them a fine is no punishment.
– Leave it to the Court to say whether the fine shall be 5s. or £100.
– I am content to leave it to the Court to say whether the imprisonment shall be for an hour or for a year.
– Then the honorable senator does not trust the Court?
– I do, but not so far as money is concerned.
– To some men, an hour’s imprisonment would be as cruel a punishment as a year’s imprisonment to others.
– The imprisonment may easily be avoided by obeying the summons.
– Probably a fine of £5 would not be half so cruel to one man as a fine of 5s. to another, who could not afford to pay, and must go to gaol. I trust that the clause will be passed exactly as recommended by the Standing Orders Committee. I do not think that Senator Neild ought to give way in the absence cf stronger reasons than have been submitted.
– This is Senator Neild ‘s Bill.
– It is not; Senator Neild’s Bill has been disposed of.
– But Senator Neild may reject or submit what clauses he pleases.
- Senator Neild, at the beginning, asked us to adopt the report of the Standing Orders Committee.
– With improvements.
– Yes, with improvements… But Senator Neild has given no reason for the improvement which he now suggests, but merely states that on representations from honorable senators opposite he intends to modify the clauses.
– Senator Neild only gives way to those opposite because they are obstructing the Bill.
– I would not saythat ; but Senator Neild is apparently prepared to back clown for the purpose of getting the Bill through a little more easily. I hope the recommended clauses will be adhered’ to.
– As a member of the Standing Orders Committee I have listened with great attention to the discussion, and it appears to me that the more the Committee depart from the recommendations made the worse legislation we shall get. I ask Senator Symon, who has had a vast experience in Courts, whereas I have had very little, whether what are here called indictable offences are not to be found described as such in almost every Act? I take it that if a man escapes from custody and defies the Senate he is guilty of a grave offence in setting at defiance the law, and rendering it impossible for us to carry on our business. If a man wilfully and deliberately obstructs an officer who endeavours to serve a warrant of the Senate, he may have to go to gaol, and possibly he ought to go, and not simply be let off with a fine. It appears to me that we should act very wrongly if we reduced the penalties proposed for such a case. In every instance I should like to see the greatest discretion vested in the magistrate or judge, with fine or imprisonment provided for offences. Magistrates, even of the most humble experience, always have regard to the nature of the offence.
– A magistrate would not be fit for his position if he did not.
– That is so. Some honorable senators seem to forget ‘that, with a maximum imprisonment of twelve months, _ it is quite likely that an offender will be let off with a week’s imprisonment for a small offence. But considering what we see around us in our daily life, we may make those penalties a great deal too low, and there is not much danger of making them too high when we name a maximum.
– Is not a maximum penalty an indication of the view which Parliament takes of the seriousness of a given offence?
– Even so, there is such an enormous difference of degree in offences that legislation does not “ make the punishment fit the crime,” unless there be some penalty between imprisonment for a week and imprisonment for two or three years. What was attempted in connexion with the Butter Commission, and what is now happening in New South Wales, show us that there ought to be a very stiff punishment for men who refuse to give evidence - who, by omission or neglect, may absolutely take part in conspiracy to defraud. At the present day crime is finding a different rut or trend, and I believe that in the future, more than in the past, we shall have to punish men of education and culture who have found out modern ways of putting other people’s money into their pockets in a gentlemanly kind of way. For these reasons I think that the Committee will do wrong if they make the penalties too small.
Senator Lt.-Col. NEILD (New South Wales). - The clause under discussion deals with minor offences, but the next clause, to which reference has been freely made, deals with the more serious matter of refusing or neglecting to appear. For the latter offence the Standing Orders Committee recommend a fine of ,£50, but no punishment by imprisonment.
– Under what circumstances could a warrant issue except for some important offence?
.- The warrant h to require attendance, and the clause under discussion deals with persons who obstruct the execution of the warrant.
– The warrant is for apprehension.
.- Precisely. The clause does not necessarily deal with an offence committed by the witness, because it may be committed by anybody in the community.
– It may be committed by a witness’s wife and children.
.- I think What we should do is to follow the example of the Standing Orders Committee in regard to the clause under discussion, and also provide the punishment of imprisonment, iri addition to a fine, under the following clause. I propose that under the next clause there Shall be precisely the same penalty of ^50, or imprisonment for a year, or, if honorable senators like, ^100 or two years. I do not wish to reduce the penalties, but we might reasonably make an effort to apportion them with some greater degree of justice than is apparent in the proposal before us. I ask the Committee to omit the word ““indictable,” and to make the penalty £,$o or one year’s imprisonment. I move -
That the proposed new clause be amended by leaving out the word “ indictable,” line 4.
– I think honorable senators are taking a wrong view of the proposal. The offences which are contemplated are extremely serious ; they cannot, under any possibility, be considered trivial. First of all, a warrant will not issue unless there has been a refusal to attend; and whatever happens under this clause cannot happen unexpectedly, or come as a surprise. Therefore, whatever action is taken in resisting or preventing the execution of an order of the Senate will have to be taken deliberately ; and that is a very serious consideration.
– That presupposes that everybody knows a warrant is out for a particular person.
– Everybody would know when a person was being compelled to attend the highest court in the land-
– Everybody would not know.
– -Then everybody ought to be made to know by sad and bitter experience. It is a very serious matter to resist the decree of a Court. There was, for instance, the unfortunate murder case recently in Victoria. Suppose some person had come up and prevented ‘ the police from arresting the accused man, could it have been said that that person ought not to go to gaol, when he must have known that the man was being taken into custody for the most serious offence possible against the law? Must such conduct be excused because the person concerned has some strong feeling of friendship towards the accused ? If resistance is excusable on that ground, then resistance under the clause would be excusable, because, at any rate, the people against whom an order of the Senate, in the form of a warrant, is issued, must be persons who have notice. It is reasonable to assume that those who feel so strongly about such persons that they resist the law, will be their intimate friends, and consequently it must be assumed that they also know of the warrant. Senator Fraser has suggested that a wife and children maybe punished under this clause.
– It might very likely ba a daughter.
– At any rate, it is very likely to be some member of the family. The brother of a person who refused to comply with an order of a Select Committee of the Senate, and against whom a warrant for his forcible production has been issued, might intervene and successfully prevent him being arrested. Conditions are easily conceivable under which a very serious loss might be entailed on a number of persons. The Committee might have to go to the furthest part of the Commonwealth in order to take evidence. They might in consequence have incurred considerable expense, and might have entailed considerable expense on a number of persons required to give evidence before them. Yet some person whose arrest under a warrant was successfully prevented, might, because of his absence, render useless the whole of the sittings of the Committee. Offences of that sort would be so serious that a fine of ,£50, or ^500, or any number of pounds, would not meet the case in certain circumstances.
– Does the honorable senator think that it would be more serious to resist a warrant issued by a Select Committee than it is to resist a warrant issued by a Supreme Court? ‘
– I think it would be as serious, and as it is usual to speak of Parliament as being the highest court in the land, it might not be unreasonable to say that it would be more serious. Certainly, issues more far-reaching might be involved than are involved in actions in a Supreme Court. We have recently had under 10tice ‘two or three instances of Select Committees or Royal Commissions dealing with enormous interests, in connexion with which frauds, which were not accidental and not entered into in a momentary lapse, but deliberately, carefully, and scientifically carried out, have been conducted for years, not by one, two, or a few, but by an enormous number of persons in our community. Some of those persons have done everything in their power, first of all, to resist giving evidence, and subsequently to resist the production of necessary documents and material proofs.
– And they kept persons out of the road also.
– In New South Wales at the present time we know that there is a desire, in the interests of the community, to secure possession of the person of a witness in connexion with an important inquiry, and there is very great difficulty experienced in obtaining possession of that witness. We know also that it is considered extremely desirable to secure material evidence In the shape of documents and so forth, and there is the greatest possible difficulty in obtaining it. If the mere payment of a monetary penalty would enable people to successfully resist the production of these persons and documents, we know that in some cases £1,000 would not stop tEem.
– But the Judge could impose imprisonment.
– Also the Judge might refrain from imposing imprisonment.
– Then he would not understand his duty.
– Perhaps he would not, and there have been persons placed in very high positions who have not understood their duty.
– We cannot guard against every case.
– We can in this instance say that persons who commit offences of this sort - extremely serious offences - must understand that they shall not have the option of paying a fine, but shall be certain, to suffer imprisonment. I know of one instance where a man, convicted of an assault, and fined ^5, asked the Bench before leaving the Court if he might have another £5 worth.
– What did the Bench say?
– That is another question. I mention the instance in order to show that a money penalty in some circumstances is no penalty at all.
– Would not a magistrate be able to discern that?
– I think he would.
– Senator Neild proposes an alternative.
– I want to say in connexion with this matter that, in my opinion, the offence may be so serious that a money fine would not meet it.
– Does the honorable senator not see that he is proposing to interfere with private enterprise ?
– - I always dis-r cuss questions, simply in the light of the circumstances in which they are presented. I have no desire to be satirical, to say anything offensive to those who are opposed to me, or to insinuate that they are wealthy or represent, wealthy people. I am dealing with this question as it presents itself “to us now, and, in my opinion, this offence might be so serious that its committal should be followed by a serious penalty, and I do not think a fine would be a sufficiently serious penalty for the purpose. If there should be some talk about making men criminals, I would ]say that where persons are imprisoned “ until the rising of the Court “ no one ever considers the imposition of such punishment as involving a serious disgrace. I fail to see how an offence against this clause could be trivial, but if it should happen that it was, the Bench would be able, at its discretion, to order such a form of imprisonment as would carry with it no stigma whatever.
– I ask leave to make a personal explanation. On looking Over the Hansard proofs I received this morning, I found that an interjection had been made during my speech which I did not hear at the time, and which misrepresented altogether the attitude I have taken up in connexion with the Kalgoorlie to Port Augusta Railway Survey Bill. The interjection was made by Senator de Largie, who said -
The honorable senator shirked the question when he was in Western Australia.
I shall not describe in my own words the position which I took up in Western Australia, but I have here a copy of the West Australian of 15th April, 1905, in which there is a report of what I said on the only opportunity which I had during the time I was in Western Australia, to speak at any meetings which I attended. Referring to myself, the report states -
Speaking as to the Trans-Australian railway, he said that they desired on the present visit to gain all the information they could. It seemed to him that Western Australia was the richest State of the lot with its gold, agriculture, &c. Therefore, it seemed to him that the States interested should obtain all information with regard to the Trans- Austral ian line rather than c,11 upon the Commonwealth Parliament to bear the expense of survey, &c.
I submit that that is exactly the position I took up here in connexion with this matter; and that is what I said on the only opportunity I had of telling the people of Western Australia what my views on the question were.
– An awful indictment !
Commonwealth Government Houses : Department of Defence: Mail Contract Expenditure: High Court Expenditure : Contingency Votes : Fire Insurance : Royal Naval Reserve : Telephone Service : Post Office Employes.
Bill read a first time.
Motion (by Senator Playford) agreed to -
That the Standing Orders be suspended to enable the Supply Bill to pass through all its stages without delay.
– I move -
That the Bill be now read a second time.
The Bill contains the usual provisions to enable the Treasurer to pay for this month’s services, at the rate which’ was authorized in the Appropriation Act of last year. It is in the usual form, and it is necessary that it should be passed so that the public servants may receive their salaries.
– Does it contain any additional items ?
– It contains no additional items, except one to recoup the Treasurer’s advance account.
– That is all right.
– Have any reductions taken place according to the classification scheme of the Public Service Commissioner, or are the salaries continued at the old rates ?
– So far as I know, no increases or reductions have been made. The Bill is based on the Appropriation Act of last year.
– I wish to discuss several matters which are dealt with in this. Bill. In the first place, I propose to call the attention of the Minister of Defence to the extremely unsatisfactory reply I received the other day to my question about the maintenance of Government Houses outside Melbourne.
– I do not know that the honorable senator can discuss that question unless, there is an item for that purpose in the Bill.
– The Bill contains an item of£420 for the maintenance of Sydney Government House. Two or three days ago I asked an extremely reasonable question on this subject, and elicited that the agreement in connexion with Government House, Sydney, will expire at the end of the current year. I asked the Government whether they would give Parliament an opportunity of discussing the general question of housing the Governor-General outside the existing Seat of Government prior to committing us to any expenditure in that direction, and more especially prior to entering into an agreement with the Government of New South Wales for the use of their Government House. The Government answered that the Government of New South Wales were willing to continue the existing agreement, and that the subjectcouldbe discussed on the Estimates. That, I submit, is absolutely playing with the Senate. It has no power to amend the Estimates,, but merely power to suggest an amendment, so that any debate on the policy of maintaining Government Houses outside Melbourne would be absolutely futile. This question was thoroughly threshed out on a previous occasion, but we discovered that it was impossible to correct what many of us believed was a very grave injustice to the Commonwealth at large, because it had been committed by the then existing Government to the maintenance of Government House, Sydney. Now the position is entirely different. The existing contract has five months to run, and there is ample time, if only the opportunity is afforded by the Government, for Parliament to express a definite opinion on this very important subject.
-Why cannot the honorable senator express his opinion on the Estimates, and give effect to it if he likes?
– If is of no use for the honorable senator to raise a side issue, because we are always told that it is undignified to create friction between the Houses on a small item. I endeavoured to do that a dozen times. On one occasion, at my instance, a proposed vote was reduced by jQi, and later on the leader of the Senate got the matter recommitted, and amy honorable friends who supported me said, “ Well,i after ‘all, you have had a moral victory. You have carried your point, so why send down a message to the other House”? The victory was absolutely worth nothing.
– Is it not unconstitutional to maintain a Government House in more than one State, and not in all the States ?
– It is not unconstitutional, but it is unnecessary, and a gross injustice to the other States. His Excellency should reside in Melbourne, so long as the Parliament sits here. Any contention to the contrary is apparently based on. a series of telegrams which were exchanged between Lord Beauchamp when Governor of New South Wales and Mr. Chamberlain. I propose to give a resume of what took place, because this question is very little understood, and it is generally supposed that Government House in Sydney has been placed at the disposal of the Commonwealth, in compliance with some understanding between the Premiers of the States. That is the contention of the representatives of New South Wales, who, I believe,’ also say it is a simple act of justice towards that State that this expenditure should be incurred by the Commonwealth. Writing on the10th August, i8qq, and referring to the period prior to the selection of a Capital Site in New South Wales, Mr. Chamberlain wrote in these terms to Lord ‘Beauchamp -
I presume that during this period the GovernorGeneral of Australia will mainly reside at Melbourne, and unless it is intended that he should hold fro tempore a Commission as Governor of Victoria, I should be glad to learn the views of your Ministers, as to the provision which should be made for his residence.
That is to say, his residence in Melbourne. A similar despatch was sent to the Governments of Victoria, South Australia, and Tasmania. Apparently, no despatch was sent to the Government of Western Australia, because at that time it was uncertain whether it would be an original State. On the 20th March, tqoo, in reply to that circular letter, Lord Beauchamp sent this cablegram to Mr. Chamberlain -
New South Wales offers Government House as permanent residence for Governor-General, and will arrange for State Governor elsewhere.
At the instigation of Sir William Lyne, the Premier, he gave these reasons -
New South Wales is mother colony of Aus tralia.
The last recommendation is probably the best one that Sir William Lyne could have put before Mr. Chamberlain ; but the latter was apparently of the opinion that the GovernorGeneral should reside in Melbourne ; and, being placed in a quandary, he sent no reply. He had asked what residence Victoria could place at the GovernorGeneral’s disposal, and he was answered that New South Wales was ready to find him a house because it was comfortable. On the 30th June, 1900, Lord Beauchamp sent to Mr. . Chamberlain a second cablegram in these terms -
Lyne hopes you have no objection to the publication of Barton’s cable asking for information on your behalf from the Premiers of Australian Colonies as to the residence of Governor-General.
Sir Edmund Barton’s cablegram is not amongst the correspondence, and therefore it is impossible to say what it was, but the cablegram from Lord Beauchamp is so very enigmatical that it is difficult to understand what it refers to, -except that Sit William Lyne wished to publish some cablegram. On the 5th July, Lord Beauchamp cabled again to Mr. Chamberlain -
Ministers anxious for reply.
On the 6th July, Mr. Chamberlain replied -
Does youT cable of 30th apply to whole of Barton’s message or only part specified.
On the 7th July, 1900, Lord Beauchamp cabled to Mr. Chamberlain to say -
My Prime Minister is anxious to have your permission to state that you desired Barton to inquire where Governor-General should reside, and that in answer to your request, Prime Ministers of federating Colonies consulted and agreed to New South Wales.
It is a very curious thing that, when challenged, each of the then Premiers of the Federated States, denied that they had made any such suggestion. Sir William Lvne was, however, anxious to force Mr. Chamberlain into saying that the Premiers had all agreed to this matter. Mr. Chamberlain sent no reply to the last-quoted message; and on the 16th July, Lord Beauchamp again telegraphed to Mr. Chamberlain -
Prime Minister subject to pressure to publish telegrams between Premiers re residence of GovernorGeneral. Have thrice asked for leave. Matter urgent.
Mr. Chamberlain replied to Lord Beauchamp on the 16th July -
Your cable, 7th July. Opinion of delegates was asked as to temporary residence of GovernorGeneral pending establishment of Federal capital. Governor-General will be sworn in, and Commonwealth inaugurated, at Sydney, but it will be impossible for him to maintain two establishments and three when Government House built at new capital, unless States or Commonwealth provide for upkeep of Government House, Sydney and Melbourne, for travelling expenses of himself and household, and for entertainment allowance.
There is a clear expression of opinion from Mr. Chamberlain, that the proper residence of the Governor-General was in Melbourne, and that if the GovernorGeneral was to be required to live anywhere outside of Melbourne prior to the establishment of the Federal Capital, it was essential that the States in which he was expected to live should make a proper provision for his establishment.
– Either those States or the Commonwealth.
– It was an extra.
– What had Mr. Chamberlain io do with the matter at all?
- Mr. Chamberlain was arranging for the GovernorGeneral to come out to Australia, and he had to get these things straightened up before he could induce any one to accept the office. That is quite clear. Lord Beauchamp, at the instigation of Sir William Lyne, telegraphed to Mr. Chamberlain -
Prime Minister wants Government House vacated and ready for Governor-General after first session of Federal Parliament, in accordance with my telegrams of 23rd September and March. If Hopetoun desires to find Government House free, shall be ready to vacate.
In fact, Sir William Lyne was so anxious to secure the establishment of the GovernorGeneral at Svdney, that he actually hustled lord Beauchamp out of New South Wales. Mr. Chamberlain, on the 24th July, replied to Lord Beauchamp -
Hopetoun agrees to arrangements suggested by Premier.
– This is very ancient history ; I do not know what is coming of it.
– lt may be ancient history to Senator Dobson and myself, but the fact is that when allusion was made to the matter in the House of Representatives the other day, apparently the historyof it had been completely forgotten. It is most desirable that it should be thoroughly ventilated before the Commonwealth is committed to another agreement. That is my point. The Minister of Defence who is responsible for arranging the business of the Senate, does not propose to allow us to have another opportunity to go into the question.
– I showed the honorable senator how he had an opportunity.
– I have taken the present opportunity, but it is unsatisfactory, because I cannot get a direct vote.
– The honorable senator could put a notice on the paper, move a resolution, and have it discussed. Then he could take a direct vote.
– I cannot get a direct vote in this way, as a matter of fact, because on a Supply Bill we are always told that the money is wanted, and that if an amendment is made the finances are put in a state of suspense. I should have thought that the Government would be glad to put a day at our disposal for the discussion of this question, especially considering the lack of business before the Senate, and that we have adjourned week after week, having nothing to do. What are we here for ? To work, not to go home to our States. To proceed with the story, the next message was a telegram from Lord Beauchamp to Mr. Chamberlain -
Premier learns Governor-General would prefer to find Government House empty and ready for occupation. Please ascertain wishes of GovernorGeneral.
On the 7th August, Lord Beauchamp again telegraphed to Mr. Chamberlain -
Premier now urgently desires that the GovernorGeneral should take up his residence in Government House in Sydney upon his arrival. I propose to accede to his wish, and shall therefore leave in November.
– What is the document from which the honorable senator is quoting?
– I am making extracts from the correspondence, which seems to have been lost sight of. On the 22nd August, Mr. Chamberlain telegraphed to Lord Beauchamp -
You can do as you like about leaving. I presume that the arrangement is made for allowing the Governor-General and his establishment free travelling on the Government railways, and that he will not be expected to entertain largely at Sydney until some provision has been made for entertaining allowance.
On the 24th August, Lord Beauchamp replied to Mr. Chamberlain, at the instigation of Sir William Lyne -
Free railway travelling for Governor-General and establishment promised.
That is the point to which I have been working up. The last message is a cable from Lord Beauchamp, at the instigation of Sir William Lyne, then Premier of New South Wales, in which he directly recognised the responsibility of that State if New South Wales desired to have the Governor-General residing at Government House, Sydney. Recognising that responsibility he promised free railway travelling for the GovernorGeneral and his establishment. But what do we find ? After having offered to place Government House, Sydney, at the disposal of the Governor-General, the Commonwealth has to pay ,£3,000 a year for its maintenance. I contend that the establishment in Sydney should be maintained by the State. I entirely dissent from the proposal to extend the agreement between the Government of New South Wales and the Federal Government, and think that it should be allowed to lapse at the end of the present year.
– Is there any use in bringing forward the matter at this stage?
– My object is to try to induce the leader of the Senate to place a day at our disposal for the adequate discussion of the question, or to induce the Government to refrain from renewing an agreement which is repugnant to many of us until the Senate has had an opportunity to give a direct vote unhampered by any considerations connected with a finance Bill.
– If .the honorable senator puts a motion on the paper he will get support for it.
– But all the clays are filled.
– Why did not the honorable senator bring it forward on the first reading of this Bill ? He has missed his opportunity.
– I have not missed my opportunity. The best proof of that is that the President cannot call me to order. I am “ on the spot.” I have now put the position clearly before the Senate. I hope that the Minister will give some consideration to it, and endeavour to meet the views of many of us. I have not trespassed upon the time of the Senate unduly in relating the history of the matter, having merely read the correspondence. If necessary, however, I shall later on move the reduction of a vote, and shall endeavour to induce the Minister to give us a more suitable time to discuss the question. In connexion with the defence vote, I draw attention to the item, “Department of Defence, division 42, Central administration.” I propose to say a few Words about the valuation of defence properties.
– Is there any item in this Bill with which the honorable senator can connect his remarks?
– Yes ; in connexion with the vote for the staff, £1,200. I think that, considering the way the duties of. the Department have been neglected, that vote ought to be reduced, and I shall probably move to reduce it. In 1901, a committee of officers was appointed to discuss the defence arrangements of the Commonwealth. That committee reported, urging that a valuation should be made of the defence properties transferred by the various States to the Commonwealth.
– I do not think that the honorable senator is in order in discussing those valuations. There is nothing in the schedule to the Bill referring to them.
– It is true that there is nothing in the schedule on the subject; but I propose to move for the reduction of the vote for the staff, and wish to justify my action. I must give my reasons.
– The staff and the committee referred to are not the same set- of people.
-I quite agree with the honorable senator ‘ that the staff and the committee are not the same body ; but the committee made recommendations, and it was the duty of those responsible to see that those recommendations were carried out. I urge that it is a gross dereliction of duty that those valuations have not been made. The result is that from 1901 to 1905 we have simply drifted along. The bulk of the defence stores handed over to the Commonwealth were obsolete. No valuation was made on behalf of the Commonwealth, but, nevertheless, quantities of stores were sold without reserve. Practically the Commonwealth received no return.
– Were the stores sold privately, or how ?
– They were sold by auction under Gazette notice and that is how. I came to know of the matter
– When was the sale?
– I think the sale was in August of last year, and at various other times. The Minister of Defence has answered a question on the point.
– The sale was in January last, I think.
– We shall have to pay for those stores whatever the States Governments like to ask; and that cannot be denied by the Minister, seeing that no valuation has been made. It is provided in the Constitution that, we shall pay for everything that is transferred ; and yet the Government have actually sold goods without knowing what they were worth.
– The auction test shows what they were worm.
– The auction showed what they were worth at a forced sale, but not what they were worth intrinsically. Not only did the Committee recommend that a valuation should be made, but I have called attention to the matter year after year, and asked each successive Government when that step would be taken.
– Has this anything to do with the Bill ?
– I am justifying my action in seeking to reduce the vote.
– Is the honorable senator in order in seeking to reduce the pay of an existing staff, who are not the same officers, and who cannot be responsible for the alleged neglect of duty by the staff that existed some two, three, or four years
– An honorable senator can move a reduction of any item he likes.
.- The point I submit is whether, on this item, it is open to an honorable senator to discuss the alleged laches of officers who are not the same officers whose salaries are under consideration ?
– It is very difficult for me to say that remarks in reference to any item in the schedule to this Bill are not relative to the subject under discussion. But I ask Senator Matheson to try to observe the spirit of the Standing Orders, and not find excuses for not conforming to them. We are now discussing the Supply Bill; and the whole policy of the Government, in reference to the Defence Forces, ought not, it seems to me, to be brought under consideration. The honorable senator is quite in order in referring to an item for the payment of the Defence staff, but I think he ought to confine himself, as far as he can, to the consideration whether the item ought to be reduced or diminished.
– I am attempting to confine myself to the fact that this valuation has not been made.
– Has that anything to do with the staff ?
– Undoubtedly, because, under the Defence Act, the Council of Defence, which is composed of members of the staff, is responsible for these executive matters. You shake your head, sir, but if you refer to the Act which was passed lastyear you will see that the head officers of the staff - those whose payment is provided for under the vote - form the Council of Defence. The General Officer Commanding has been dispensed with, and each head officer has specific duties to perform. Therefore, they, and not the General Officer Commanding, are responsible for the fact that this valuation has not been made unless, of course, the Minister intends to take the responsibility on himself, which I hardly consider likely from the way in which the honorable gentleman now smiles.
– I do not think the officers can be responsible.
– That is the very point I want to raise. Who is responsible? That is what I want to know, and that is why I wish a reduction of the vote. The Minister of Defence says that he is not responsible.
– I think the honorable senator will find that the States are responsible. The honorable senator has, no doubt, read what took place a few months ago at the Hobart Conference, and the resolutions which were there passed relating to transferred properties. The honorable senator knows that steps have been taken, and that everything is being done that can be done.
– That is the very thing I do not know. At the commencement of the sitting to-day, I asked the Minister, without notice, in the most civil way, whether he could give any idea when the valuation would be placed before the Senate, and he, in an equally civil way, said in effect, “ Heaven only knows when the valuation will be forthcoming.” That is what brings me to my feet, because I think the Senate is entitled to know who is responsible for this extraordinary delay.
– A good many people, I think.
– This is not a question of two valuators meeting and arriving at a joint conclusion; it is for the Commonwealth to make a valuation and submit it to the States. I do not ask that the agreed valuation shall be placed before the Senate; what I want to see is the valuation which is placed on the stores by the officials of the Commonwealth. There are thousands of pounds worth of useless guns and stores at the present moment in the arsenals of the Commonwealth, and we are to be asked at some not far distant date, to pay for those stores as if they were effective. We have had experience of several Commonwealth Governments, and we know that matters are brought before Parliament in regard to which the Government are already committed, and ithas been on several occasions futile to debate questions already prejudged by the Ministry. I am anxious to use every possible means in my power to prevent this happening in connexion with the stores. I know that in Western Australia there are stored cannon which are absolutely useless.
– Has that anything to do with the duty of the officers, who, the honorable senator says, have been guilty of neglect?
– Yes ; I wish to urge that the valuation should be proceeded with.
– The honorable senator is evading the standing order.
– If that is your ruling, sir, I shall stop.
– I asked the honorable senator to confine himself to the schedule to this Bill. Has the assertion that some of the stores are valueless anything to do with the schedule?
– Yes ; because I say the valuation ought to be made. However, sir, in view of your ruling, I shall not labour the question further, and, probably I have said enough. There is another matter to which I wish to call attention in connexion with the Post and Telegraph Department, under the Western Australian item “ Subdivision No. 2, Conveyance of Mails,£4,100.” That item contains a proportion of a vote which I say is absolutely unjustifiable. It is in connexion with the Vancouver mail subsidy, which up to this year, 1905-6, has been defrayed by Queensland and New South Wales solely. Last year, under this head, New South Wales paid£12,587, and Queensland£10,227. This year, without the least justification - without coming to Parliament for a direct vote - the Government have, under the head of transferred services, of which this item forms a part, split up this subsidy per capita amongst the various States. I asked the Minister to-day what justification the Government had for treating this as a transferred service, and I was told that authority was derived from section 89 of the Constitution. On referring to that section, I find- (II.) The Commonwealth shall debit to each State -
I should like to call attention to the fact that Western Australia never paid one penny prior to the current year towards this subsidy.
– The authority is derived from paragraph: b of the; section just quoted by the honorable senator. It was treated as transferred service before, and now it is treated as “other expenditure “ under paragraph b.
– If it was treated as “ other expenditure,” it might be quite right,, and there might be less to say about it. But I have gonevery carefully into the matter, and if Senator Drake refers to the Estimates, he will find the item there treated as transferred expenditure, without the least shadow of a justification. Western Australia has never paid a penny to this subsidy ; and how, then, can it be contended that any portion of this vote shall be debited to that State as expenditure incurred “for the maintenance or continuance, as at the time of the transfer, of any Department transferred from the State to the Commonwealth”? It is a gross infringement of the rights of Western Australia to attempt to make that State liable under this head for any such subsidy.
– I suppose the honorable senator is going to move a reduction of the vote.
– Yes, I may, in consequence, move a reduction of the vote. What lends a particular colour to the injustice of the proceeding is that when it was necessary to increase the subsidy given by New South Wales for a service to the New Hebrides, the matter was honestly brought before the Senate in the shape of a resolution, and we were asked to express an opinion as to whether the increase should be regarded as a new expenditure on behalf of the Commonwealth. That was a perfectly straightforward and honest way of dealing with the situation. The Government dare not treat this subsidy in the same way, because they know that if a direct motion on the subject were submitted to the Senate none of the representatives of Tasmania, South Australia, or Western Australia would acquiesce in the allocation of any of this expenditure to those States.^ Without any consultation with Parliament the Government simply slip this proposal in under the heading of “ transferred expenditure,” where it would be most likely to escape notice. That is a most atrocious way of dealing with the business of the Commonwealth.
– They did not slip in the Tasmanian subsidy.
– If Senator Clemons refers to the payment for the coastal carriage of mails between the mainland and Tasmania that does not come under the heading of subsidies properly socalled.
– It has ‘to be paid, for as a subsidy.
– I hope the Minister of Defence will take a note of the grievances I have submitted, and will endeavour to remedy them.
– Has not the honorable senator something to say about the telephone service between Melbourne and Sydney ?
– Unfortunately, I cannot attach it to this Bill, and I have no desire to exceed the limits of the Standing Orders in discussing these matters. So far, I think, I have been thoroughly justified in everything I have said, and I am afraid I am debarred by the Standing Orders from making any reference to a picture of which the Commonwealth would appear to have bought a large number of copies, or to the telephone service referred to by Senator Givens.
Senator PLAYFORD (South Australia - Minister of Defence). - I have one or two words to say in fairness to Senator Matheson. The honorable senator has given me a vast amount of information about the Government Houses in Svdney and Melbourne. I have not before heard the contention that the upkeep of the Sydney Government House should be charged to that State, and not to the Commonwealth.
– Sir William Lyne made that offer to Mr. Chamberlain.
– The matter to which the honorable senator has referred will be looked into, but I do not think we should be mean in our relations with the Governor-General. As far as I know, all the States provide their Governors with more than one residence. At all events, in the little State of South Australia, we provide the Governor with a residence on the Plains and another in the Hills. I understand that in Victoria there is a Governor’s residence near Melbourne, and another some distance away in a more elevated situation. It would appear to have been recognised in the States that more than one place of residence should be provided for a State Governor. In the circumstances of the Commonwealth, when we have two such States as New South Wales, which is designated by the name “ Mother State,” and the important State of Victoria, in which at the present time is the Seat of Government, surely it is not too much to ask, when we have not to pay rent for them, that we should keep the Government Houses in Melbourne and in Svdney in repair. If the Governor-General desires that two residences should be provided for him, I do not think we should begrudge the small expenditure necessary to keep them up.
– There is no evidence that the Governor-General does desire that two residences should be provided for him.
– I said “ if “ the Governor-General desires that two residences should be provided for him, we should not begrudge the expense necessary to keep them up. I shall leave that subject, as I do not think any more need be said on it.
– Will the Government give honorable senators an opportunity to debate the subject?
– The honorable senator has said that I tried to muzzle him and to burke discussion of the matter. I did nothing of the sort. The honorable senator has every right ‘and power to bring the matter before the Senate by a direct motion, that, in the opinion of the Senate, it is not desirable that we should make any provision for a residence of the GovernorGeneral in Sydney.
– Will the Minister give me an opportunity to debate it ?
– I could not prevent the honorable senator, and I have no desire to do so.
– -Surely the ‘Minister will not make special provision for such a debate ?
– I will not make special provision for it, but the honorable senator has only to put the motion on the notice-paper so many weeks in advance, to have a full day to himself.
– How many weeks in advance?
– That can be ascertained. I do not know that I need discuss the question of the transferred properties, and their valuation, as it is not alluded to in the Supply Bill. The honorable senator is aware that the matter has been the subject of discussion between the States Governments and the Commonwealth Government since the inauguration of the Commonwealth.
– Why cannot the Commonwealth Government make their valuations ?
– We have been trying to arrive at some basis, and the Hobart Conference did arrive at a basis, though Mr. Carruthers, on behalf of New South Wales, did not agree with the other Premiers that we should pay 31- per cent, on the money value of the properties when the extent of our indebtedness in respect of them is decided.
– The trouble was the difference between cost price and market price.
– According to the arrangement discussed at the Conference, two arbitrators were to be appointed1, and if there were any dispute the matter was to be referred to a Judge of the High Court. I know- that the officers of the Defence Department have proper stocks sheets prepared, and are getting out their valuations as fast as they can. I hope the matter will be settled in a short time. Of course, there is great difficulty in estimating the value of military stores which have been transferred. Senator Matheson is aware that the obsolete arms to which he has referred were not obsolete when the States purchased them.
– They were obsolete when they were transferred to the Commonwealth; that is mv point.
– We shall have to accept their valuation at the time ‘hey were transferred to the Commonwealth. Though they have every day since become more obsolete, the States may very properly contend that the Commonwealth should take over these guns, ammunition, and accoutrements at their valuation at the time of the inauguration of the Commonwealth, when they might have been fairly serviceable, and not at their value to-day.
– That was five years ago.
– With regard to the Vancouver mail service, I have no wish to express an opinion, but I do say that the Government have adopted the proper course. The States pay on the basis of population for the Orient service, do they not?
– Hear, hear.
– And Western Australia gets the benefit of that arrangement.
– In what sense?
– Western Australia is paying pro rata with the other States for that service, which is of more importance to her than it is to Queensland. If Queensland has to pay per capita a share of the cost of a service which is of special advantage to Western Australia, is it not right and just that Western Australia should pay on a per capita basis for a service which New South Wales and Queensland make special use of? CanSenator Matheson say that that is not right and just? The old contract in connexion with the Vancouver service had run out. Under the old arrangement New South Wales paid an annual subsidy of £13,636, and Queensland an annual’ subsidy of £10,227, a total of £23,863. The (wo States of New South Wales and Queensland paid the whole of that subsidy, and at the same time they were paying a per capita share of the cost of the mail service in which South Australia and Western Australia were more particularly interested.
– That arrangement was made before Federation, and when it was to the interest of New South Wales and Queensland to make it.
– No doubt; but when the old contract expired we had to consider the question whether we should continue it on the old basis under which New South Wales and Queensland paid the whole of the money or established the service on a per capita basis. I say that the late Government and the present Government,’ in carrying out the intention of the late Government, have done what is right and proper in determining to continue that service on the system of a per capita contribution from each State.
– Why call it “transferred services,” and not new services?
– What’s in a name?
– There is something in these names.
– The Government have decided that this service, the Orient service, and all over-sea services, shall be paid for by the Commonwealth on the basis of population. The only question we have to consider is whether that is a fair arrangement with the States as a whole. I say that it is. It would be manifestly unfair that Queensland and New South Wales should have to pay over ,£23,000 a year for a service which they use possibly more than other States, but which the other States can and do use to some extent, and should at the same time have to pay on a per capita basis for another service which the other States use more frequently than they do, but which they occasionally use also. The proper way is to pay for these services by a Commonwealth payment on a population basis.
– The proposal should have been submitted to Parliament, because there is no evidence that the service is necessary.
– I do not know why it should be submitted to Parliament.
– Then why submit the other service to Parliament?
– -The Government considered that when the old contract expired and a new arrangement had to be made, it was right and proper that the ser vice should be continued on a per capita basis pf payment. Having come to that determination,, they had a perfect right to enter into the arrangement as the Executive of Parliament, and if Parliament is not disposed to ratify their action, “then it must step in and deal with the matter. I say that the Government did right in the circumstances.
– The New Hebrides service was submitted to Parliament, and it was simply an extension of an old contract.
– I have not a complete knowledge of these matters, which are not in my own Department. I am unable to say that this matter will not be submitted in the same way as the contract with the Orient Company for the ratification of Parliament. Under the new contract for the Vancouver service, Canada will pay ^37)091, as against £34,091 under the old contract; Fiji will pay ,£2,282, as against £2,046 under the old contract; and the Commonwealth will pay ,£26,627, as against £23,863, paid by New South’ Wales and Queensland under the old contract. I do not believe that in this matter it can be charged against the Government that they had not acted rightly and justly.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clauses 2 to 4 postponed.
– The item of £3,143 under the head of Parliament gives me an opportunity of directing the attention of the Minister of Defence to what recurs every time we deal with a Supply Bill, and that is the tremendous disproportion which the “contingencies “ bear to the sums upon which they are contingent. I particularly direct his’ attention to the item for the Library, where he will see that £10 is required for salaries, and £435 for contingencies. Can the Minister give the Committee any indication as to what items are comprised under the head of contingencies? I submit that to base £435 upon £1.0 is to verge upon the ridiculous. If we are always to be asked to pass votes for contingencies without getting detailed information the thing will become an absolute farce.
– I do not know anything about the matter. The honorable and learned senator will find all the information he requires in a copy of the Estimates of expenditure, which’ I beg to hand to him. The item for contingencies comprises a very long list which I do not suppose he will ask me to read.
– Everything but salaries is included in contingencies.
– No doubt it is very difficult for a Minister who is not in command of a Department to furnish at a moment’s notice the particulars wanted on a Supply Bill. I wish to recall to the recollection of Senator Playford the fact that a few weeks ago I asked him whether he, on behalf of the Government, would give the Senate an opportunity of dealing with the Estimates for the year at an early date after they were laid before the House of Representatives, and he promised that he would.
– I cannot until that House has passed them.
– My honorable friend did ‘ not make that condition.
– Oh, but the honorable and learned senator knew that.
– No. Remonstrances have always been made as to the late period o(f the session at which the Estimates come before the Senate for consideration. No one has been more insistent and strenuous in making such representations than has Senator Stewart. And on that account I promised last year that the matter would be taken into consideration.
– Is there no constitutional difficulty in the way ?
– No. The late Government considered the matter carefully, and I think I am in a position to say that its Treasurer had formulated a scheme for bringing the Estimates in some shape before the Senate after the Budget had been delivered - either in connexion with a Supply ‘Bill, or in some other way - so that it could consider the items before the Appropriation Bill was sent up. Sir George Turner thought it was perfectly feasible,, and it was that fact which led me to put the question to my honorable friend. I did not regard his answer as having a condition or understanding attached to it j he may have had it in his own mind, but he gave me an unqualified answer, which was the one I expected to receive, and I took it as meaning that probably the present Government had considered the question from the same point of view, and discovered some method by which the idea could be carried out. I know of no constitutional difficulty in the way.
– It occurred to me that while the other House has the power of cutting down the Estimates, the Senate has only the power of making requests.
-On this very Bill we should have power to consider the Estimates. I do not see any constitutional difficulty in (he way. . Of course, when the Appropriation Bill comes up the financial business of the year is closed.
– The other House likes to hold the power of the nurse over the Government as long as possible.
– The other House likes to retain the Appropriation Bill as long as it can, but I do not see why there should be any difficulty in getting the Estimates in detail brought under the consideration of the Senate before the Appropriation Bill is sent up. If there is any difficulty of procedure it ought to be got over. We ought to develop a new departure if necessary, because it is folly to talk about the Senate being on an equal footing with the other House with regard to expenditure if we have thrust before us - it has been inevitable in the past - the detailed Estimates during the last days of the session. Last year I felt everything which was said on the subject. I recognised that we were labouring under a disability in that respect’. I hope that my honorable friend will consult his colleagues, and see if the idea cannot be carried out. It would be satisfactory to the Senate. It would facilitate business, and maintain that greater control over the finances which the Senate is supposed to have as compared with the upper Houses of the States.
Senator PLAYFORD (South Australia - Minister of Defence). - I shall certainly bring the matter under the attention of the Treasurer, as well as the Government as a whole, and see if the suggestion of the honorable and learned senator cannot be carried out in some way. To-da,v I laid a copy of the Estimates upon the table - I think it is the first time on which they have been tabled before the Appropriation Bill was sent up.
– Oh, no; the Estimates have always been circulated, but not brought under our consideration.
– I can see difficulties in the way, but I do not wish to argue them at the present time., I shall have the matter looked into, and, if possible, shall do what the honorable and learned senator suggests.
Senator CLEMONS (Tasmania). - The Minister of Defence has very kindly handed to me what I had - a copy of the Estimates - as an answer to my question. If I excuse him from answering the question I put with regard to contingencies, will he explain why the magnificent monthly salary for looking after the Library is £10? If it is run at that expense per month, I shall be very much astonished.
Senator PLAYFORD (South AustraliaMinister of Defence). - It is a State as well as Commonwealth Library, and we have to pay our share.
– Is that the full explanation of the reason why we are asked to vote £10 for salaries and ,£435 for contingencies? Because if it is the Estimates will not bear it out.
– So far as I know it is.
– Then the Minister knows nothing, and I shall let him off.
– I said I did not know anything about the matter. Perhaps a member of the Library Committee could explain the item.
Senator Sir JOSIAH SYMON (South Australia). - In the vote for the AttorneyGeneral’s Department, under the head of “ Secretary’s office,” we find an item of £180 for salaries, and an item of £45 for contingencies, and in order to hold the balance true when we come to the vote for the High Court we find an item of £130 for salaries and £670 for contingencies. Can the Minister of Defence tell us what the item for contingencies means?
– I think that my honorable and learned friend could do that better than I can. He has had some experience in this matter.
– Later on I shall take an opportunity to express my views, but at the present time I do not know what my honorable friend has been doing. He may have been reversing what I did.
– I am afraid that this is part of the honorable and learned senator’s expenditure.
– My honorable friend has been undoing my economies.
– Oh no.
– That is all right. The Minister cannot give us any information.
– It is given in the Estimates.
– The Minister of Defence has 6aid that he is not able to give any information regarding the expenditure of the High Court.
– On a Supply Bill we are not expected to do so.
– I am very much astonished that the information is not given, because this matter has been very freely ventilated, both during the recess, and since the Parliament met. The expenses of the High Court were considered bv the late Government to be excessive, and if some statements I read in the press be correct, undoubtedly the expenditure was on a most extravagant scale. In many quarters the late Attorney-General has been adversely criticised for suggesting to the Justices and their officers that they ought to adopt a simple style in connexion with their travelling. He has been found fault with for doing that when I think he ought to be praised. I cannot see how it is possible for even a Justice of the High Court to spend £4 a day in travelling expenses. If he were travelling at his own cost, it would be nothing. But travelling at the expense of the public, as I should imagine, in a simple style, the cost seems to be altogether out of proportion.
– On the Estimates for this year there is an item of £2,000 for travelling allowance.
– That is most extravagant. I cannot find out how the Justices travel. I may be accused of disrespect to the Bench for mentioning the matter here. But I look upon their Honours as merely officials of the Commonwealth. I do not see why , they should segregate themselves when they travel. I do not see why they should live at a much more extravagant rate than other persons do. They mix in society ; they go to races; they go to balls, and I understand that some of them go to prize fights. But apparently when travelling on public business they travel more like princes of the blood royal than ordinary individuals.
– How do they travel as a rule?
– They travel, I believe, in the most expensive way, but at other people’s cost. They do not pay for it themselves, and of course the cost does not trouble them. I wish to enter my strong protest I do not know whether it will be of any service to say so, but I appreciate very highly some remarks made by Senator Symon on this subject. We want more simplicity, both inside and outside the Court. I really think that it is most extravagant on the part of the Judges to spend money for travelling in the way they do. They ought to be called upon to give detailed statements of their expenditure. It may seem to be infra dig., and trenching somewhat on the high dignity of the Bench, to ask for this sort of ‘thing, but really to my mind it has become something approaching a scandal. The Senate would be failing in its duty if it did not insist on more economy on the part of the Judges when travelling. The Minister in charge of the Estimates ought to have more information to lay before honorable senators.
– - We never had full information given on a monthly Supply Bill. I shall have all information when the Estimates proper come before us.
– The excuse is a very ancient one.
– No one has ever done it before.
– Because it has never been done in the past, is that a reason why it should not be done in the future ? Our responsibility for the finances of the Commonwealth is very great, but hitherto we have had very little opportunity to exercise any control- The Estimates have never reached us until a very late period of the session, when every senator was anxious to get away from Melbourne. The consequence has been that the work has been scamped. The other House had passed the Estimates and wound up its work before the subject was handed over to the Senate, and if we had attempted to discuss it in detail and at length we should have incurred opprobrium from members of another place. Our control over expenditure ought to be something more than a mere sham and a farce as it is now. We ought to have an opportunity whenever a Supply Bill comes up to discuss every matter in connexion with public expenditure. It is of no use to put it off until the end of the session, when the Estimates come up.
– And when half the money is spent.
– Yes, and when the opportunity for criticism has gone by. Now is the appointed time.
– I really think that the particular vote to which I have called attention does require further explanation. On turning to the Estimates, I find that the vote for the current month, £670, for contingencies, represents a quarter of the total vote for the year. The total vote is £2,665. 1° the second month of the year we are asked for about one-fourth of that amount. This is beyond all bearing.
– A good deal of that is for the annual railway passes, for which we pay this month.
– That can hardly be the explanation.
– The railway passes for the three Judges cost only £180.
– In the previous Supply Bill, which was framed by the late Government, we had set down only £110 for contingencies. That represented about one-twelfth of the total, and was a perfectly reasonable amount. Now, however, we are asked to vote £670, which, multiplied by twelve, would make over £8,000.
– There are arrears to the amount of £116, which are included in the vote.
– In connexion with division 23 exactly the same point arises. I find that the amount set down’ for supervision of works for the whole year amounts to. £3,000, but in this month of the year we are asked to vote one-half the amount, £1,500. I really think that the Treasury is running away from parliamentary control when, in the second Supply Bill qf the year, it asks us to appropriate one-half of the whole amount for contingencies for the supervision of buildings.
– It would be monotonous if we were to pick out item’s of the character to which reference has been made by Senator Clemons and Senator Matheson. I find that many items of what is presumably, a monthly Supply Bill ‘are vastly in excess of onetwelfth of the vote for the year. It would be a pure waste of time if we were to pick out each of these items in view of the frank admission of the Minister, that he is not able to give’ us any information on the subject. I have listened to his statement that it is not usual to give full information on a monthly Supply Bill. But while perhaps it might be unreasonable to ask the Minister to be prepared with information to that full extent on every item, yet there is such a succession of items where the amount we are asked to vote is greatly in excess of one-twelfth of the total for the year, that we are entitled to ask for :a reason. Without an explanation the whole position would seem to be reduced to an absolute farce.
– The amount mentioned by Senator Matheson is payment for State supervision of Commonwealth buildings. It is not paid monthly, but by the half year. There is a satisfactory explanation for every item of the kind.
– No doubt the explanation is satisfactory to the Minister. Whether it is satisfactory to this Committee is another thing. I am certain that no one wishes to hamper the Government in the transaction of business, but if in future Supply Bills are presented to us without fuller and better information being forthcoming, the Government must not complain if honorable senators decline to pass them in the haphazard fashion in which they are placed before us.
– There is one item, fire insurance £500, and another item for a similar purpose £30. It is not to be expected that the Government would pay their fire insurance by monthly instalments. They naturally pay the amount in a lump sum once a year. _We must trust- to the authorities in these matters of detail, and I see no necessity for asking for details on every little point.
– When the attention of the Minister of Defence was called to the large contingencies votes for other Departments than his own,, he excused himself for not explaining them by saying that they did not affect his Department. But looking over the Bill I find that his is about the worst of all the Departments in this respect. Fully half the amount voted is for contingencies. For instance, in connexion with militia pay we have, on page 10, £20 for salaries, and £420 for contingencies; on page 11 we find - pay ,£320, contingencies £130 ; on page 13, in connexion with rifle clubs, we find - pay £17, contingencies £5,000.
– That is to provide the rifle clubs with ammunition.
– But ammunition is provided for in other parts of the schedule. On several other pages I find various sums provided for “contingencies.” On page 14 there is the sum of £800 ; and on page 10 two items of £300 and £800 respectively, under the same head, in connexion with rifle clubs and associations.
– There is practically no pay in connexion with the rifle clubs and volunteers, except for instructors.
– The Minister cannot shelter himself on this occasion behind the fact that these items concern another Department, and that, therefore, he cannot be expected to know the particulars. The items to which I have referred are in his own Department, which is the very worst sinner in this respect. We have the right to more information, and, whilst I do not intend to resist the passage of this Bill, I shall not be so complacent in the future.
Senator PLAYFORD (South Australia - Minister of Defence). - When the annual Estimates come before us for consideration, I shall give honorable senators all the necessary information. It has not been the custom to give full particulars on Supply, Bills of the character of that before us. As to rifle clubs and volunteers, there is, as I have said, no pay to be provided for, except that of instructors, and we lump the ammunition ‘and other stores under the head of contingencies.
– Will the Minister promise to give us the details of the contingencies when the annual Estimates are before us?
– I promise to do so when the general Estimates come down. If this morning any honorable senator had expressed a desire to have details of any items provided for contingencies - which, in this case, cover everything but pay - I should have been very pleased to obtain full particulars. I am not in a position to give the information now, ‘and I may point out that no Minister has ever been asked to supply particulars of the kind on similar occasions.
– Oh, yes.
Senator Sir JOSIAH SYMON (South Australia). - When in office, I was constantly asked for particulars of .this kind, and I do not think the Minister of Defence can fairly complain of having been worried on the present occasion.
– Of course, on a Supply Bill, there is great difficulty in entering into details. The items are usually given in a sort of rough and ready round sum, which is put down in the expectation that it will cover the probable expenditure for the month.
– And a bit over.
– There is probably a margin. Nevertheless, I think that we are fairly entitled to expect the Minister to give us some approximate idea of what “contingencies” mean. Otherwise there might as well be a schedule simply containing the total amount required.
– We do give some details.
– It would be of no earthly use to hand over the Estimates to honorable senators, because we cannot at this stage deal with them, and they afford no guide to the items in the Supply Bill.
– Last year’s Estimates would afford a guide, because the Bill is based on those Estimates.
– The Estimates would not explain the item of “contingencies.” If we were inclined to criticise the Estimates now, we should immediately be told that they were not before the Committee, and if we moved to reduce an item in the Supply Bill, excepting by some such arrangement as I previously suggested, it would not help us to determine the amount that ought to be allowed for the month’s supply. The Minister is taking the right position in one respect, in saying that exact particulars cannot be supplied, but we ought to have some approximate idea of what is intended to be covered by the amount set down.
Senator MATHESON (Western Australia). - I ask Senator Playford to bear in mind a promise which was given to me last year, in connexion with the Royal Naval Reserve.
– Who made the promise ?
– I forget which particular Government was in power, but I take it that a promise made by one Government is treated as an heirloom by the succeeding Government On previous occasions, the advance made to the British Government for the Royal Naval Reserve has been described as an advance to the “Imperial” Government. Exception was taken to the word as not being the correct official title of the British Government. The promise was then made that in succeeding Supply Bills the expression would be brought into line with that used by the British Government itself. I call attention to the matter, because I consider it vital.
Senator Sir JOSIAH SYMON (South Australia). - I know that Senator Matheson takes a great deal of interest in this matter.
– In the word.
– Well, in the word. The promise of which the honorable senator speaks was not made by the late Government, but by Senator Dawson, on behalf of the Government in which he was Minister of Defence. Iti my opinion, “Imperial “ is the proper word, because it is the word used in the Naval Agreement, and also, I believe, in the Act. I mention this now, so that the Minister of Defence may not too readily acquiesce in the substitution of “ British “ for “ Imperial.”
– The word “ Imperial “ is used in the annual Estimates.
– And it is the proper word, because it correctly indicates the definite purpose of the vote.
Senator MATHESON (Western Australia). - It has escaped my learned friend that although “ Imperial “ is used in the Naval Agreement, it is used in the part framed by the Commonwealth Government. In the part of the Agreement framed by the British Government We will find that the words are “ The Government of the United Kingdom of Great Britain and Ireland.” If the honorable and learned senator refers to any Act of the British Parliament or indeed any document in which this reference has to be made, the word “ Imperial “ is not by any possible chance used, except in connexion with India; and we are not in the position or India. I believe in adhering strictly to the correct phraseology in all these matters.
– I ask the Minister representing the PostmasterGeneral, whether there is any limit of time during which subscribers may continue to use the telephone? May business or social conversation, or gossip go on for an hour, irrespective of the inconvenience caused to other subscribers? If there is no regulation on the point, will the Minister consult the Postmaster-General as to the advisability of having a regulation?
– Personally, I know of no regulation of the kind. I believe the time is left to the discretion of the subscribers, and, to some extent, to that of the telephone clerk, who can ascertain from time to time whether the parties are still in communication or wish to be disconnected. I shall make inquiries, and’ let the honorable senator know the result.
Senator STEWART (Queensland).- Am I in order in referring to the hours worked by some employes in the Past and Telegraph Department on this vote?
– I think the honorable senator can connect that matter with the proposed expenditure.
– I desire to draw attention to the number of hours that Post Office employes in Brisbane - and also, I believe, in Sydney and Melbourne, although I am not quite sure - have to be on duty. Some of these men have to be at call from 5 o’clock in the morning until 10 o’clock at night, in order that they may make up a work-day of eight hours. During the whole of the seventeen hours they have to be on hand if the head of the Department desires them to do any work. Does the Minister representing the Postmaster-General look upon this arrangement with approbation ? A man may be called upon at 5, and be dispensed with at 7 ; called again at 9 and dispensed with at 11 ; called at 3 in the afternoon and dispensed with at 5 ; and called back at 9 o’clock, and made to work until 10 o’clock. Such conditions would be known as sweating if they prevailed on the premises of a private employer ; indeed, I do not think that a private employer would ask his people to spread their day’s work over such a large number of hours. I should like to know whether the PostmasterGeneral will do something to remove this great source of complaint on the part of Post Office employes. The Commissioner has fixed those hours, and has been appealed to without result, so that it is high time Parliament interfered. The difficulty could, no doubt, be got over very easily if the heads of the Department and the Commissioner were anxious to deal squarely by the men. But it has been so long the custom to call the men at any and every hour that the authorities resent any attempt to place the conditions on anything like a fair basis. I am assured by the men that they are quite willing to sacrifice their own convenience to a great extent to assist in carrying on the work, but they consider the present regulations too bad. They point out that in a large number of instances it is not possible for them to go home, and they are compelled to spend the intervals either on the street, or somewhere else, to their great inconvenience and sometimes expense. In other cases where men had to go home there was extra expense incurred for car fares, railway fares, and so on. On the whole, the arrangement is a very unsatisfactory one for the men, and I should be pleased if Senator Keating, asrepresenting the Postmaster-General, would bring this matter under the notice of the head of the Department, and try whether some better arrangement might not be arrived at.
Senator KEATING (Tasmania- Honorary Minister). - In answer to the honorable senator, I should like to say, as I have said once or twice before, that any representations which honorable senators make in the discussion of the classification scheme, to the effect that the principle or policy of the Public Service Act has been departed from, will be properly tabulated and submitted to the Public Service Commissionerfor his consideration’. It appears that in the matter referred to by Senator Stewart the men have exercised their right to appeal, and have been, so far as they are concerned, unsuccessful. But I shall bring the honorable senator’s representations under the notice of the Postmaster-General, whether he refers to them again in dealing with the classification scheme or not, in order that, if on inquiry the Postmaster-General’ should think it necessary, they can be dealt with by him in conjunction with the Public Service Commissioner.
Schedule agreed to.
Postponed clauses 2 to 4 agreed to.
Bill reported without requests ; report adopted. ‘
Bill read a third time.
– I move -
That the Bill be now read a second time.
Although it is late, I move the second reading of the Bill to-night. I shall prob- ably not occupy much more than about half-an-hour, and then honorable members will have the advantage of being able to consider what I have had to say on the measure before they discuss it. Honorable senators have had copies of the Bill for something over a week, and have no doubt given due consideration to its provisions. Seeing that this is about the first time that we have attempted in any of the Australian States to legislate somewhat comprehensively on this subject, it will per- haps not be out of place if for a few minutes I refer to the origin of the law of copyright, and its gradual development, and briefly sketch the position in Australia at the present time. Honorable senators will know that copyright, as it exists, rests on the principle that an author is just as much entitled to the work and product of his own brain as is any private individual to any personal property, and that he is entitled to turn that property in the product of his own brain, to such profitable account as he can. Copyright did not, of course, engage any serious attention on the part of people until after the invention of printing. Prior to the invention of printing, of course, students who had given their attention to translating or writing a work, after completing it and submitting it to the public, found that what they had done had engaged so much of their time, that it was hardly likely any one would take advantage of their work to the extent of copying it in more than, perhaps, one or two instances. After the introduction of printing the possibility of, so to speak, indefinitely multiplying the product of an author’s brain gave rise to a new set of circumstances. I think it is Hallam who tells us that the first recorded instance of copyright is a grant by the Senate of Venice in 1469 to a man named John Spires, and that was the right to reproduce Cicero’s Letters. It had always been admitted that an author had1 undoubtedly the exclusive right to the manuscript of his work, but with the possibility of converting that work into a profitable book, and so multiplying it indefinitely, a new set of circumstances, as I have said, arose.
Trade custom and the decisions of the Equity Courts always recognised that the author had an exclusive right to his unpublished manuscript, but as soon as printing came into existence, as honorable senators are aware, various Sovereigns endeavoured, so far as they could, to regulate, direct, and control, almost directly and personally, the licences to print and to publish by means of printing. It was looked upon almost as one of the prerogatives of the Sovereign, and Sovereigns used this prerogative, if .1 might so call it, to licence the publication of books from time to time for the purpose of granting monopolies to individuals, and at the same time, obtaining some compensating advantage for themselves. We find in the history of the early development of the law of copyright, that once an author published his previously unpublished manuscript, the question arose whether at common law he had any exclusive right to the multiplication of copies of his work. The Stationers’ Company, as honorable senators will no doubt remember from their reading of the history of England, had its charter, and the Royal authorities conferred on the Stationers’ Company the right and to some extent the duty of regulating and controlling publication. They exercised this right, or discharged this duty, from time to time by their orders and decrees. We find working with’ them at the time, or some time a little later, the Star Chamber, which, by its decree in 1687, prohibited printing without a licence. In 1662, under a Licensing Act, the Lord Chamberlain was empowered to licence the printing and publication of certain books. This Act of 1662 was continued by successive Parliaments from time to time, and was finally repealed in 1691. Once it was repealed, again was revived the discussion on the common law right of an author, and the common law right of a printer to the exclusive right to multiply the publication of an author’s work or works fust printed by the printer. I may mention, in this connexion, that in the history of this branch of law, up to that time, ‘the people who considered themselves most concerned with what might be called copyright, were not the authors, but the printers.
Nearly every discussion that took place as to the right of exclusive publication, as to the right of the printer in a book, and his right to reprint it once it had been produced, dealt with the question from the point of view of the interests, not of the authors, but of the printers and publishers, it was not until 1709 that there was a real Copyright Act placed on the statute-book. That statute was passed in the eighth year, of the reign o,f Queen Anne. It is still open to a considerable amount of doubt whether that Act really recognises that there was a right in common law to copy- right, or whether it contemplates bringing into existence for -the first time by statute a copyright such as we are familiar with today. At any rate, it was not until sixty - five years later, in 1774, that in the course of the case Donaldson v. Beckett, in which twelve Judges were called in to give their opinions on a certain number of questions categorically submitted to them, that a long cherished illusion was shattered. That was the illusion entertained on the part of publishers that they had something like a perpetual copyright, apart altogether from statute. It was just subsequent to this that authors began to recognise that authorship offered many df the advantages of a profession. Previously a good many of- the authors, to whom we are indebted for some of the best literature we have, wrote with a view to fame and immortality, and wrote at the same time under the patronage of some wealthy public or private man. The first statute of modern importance that we have in connexion with copyright, apart from a .Sculpture Copyright Act of 1798, and some Engraving Copyrights Acts, was passed in 1814, and it gave copyright to the original writer of a book for a term of twenty-eight years, or for life. The measure of copyright protection afforded by ( the Act gave rise to considerable discussion, and in 1842 the Imperial Parliament passed a Bill which is for all practical intents and purposes our starting point. By that Act copyright was given for a period of forty-two years, or for the life of the author, and seven years afterwards, whichever of the two periods should be the longer. Conditions were made that there should be a registration of the book at Stationer’s Hall, and that it should precede any action for damages for infringement. Registration was not a necessary precedent to the acquiring of copyright; the publication of a book by a British subject in the United Kingdom, and a compliance with other conditions of the Act, entitled him to copyright. It subsisted in him, but if it were infringed by anybody it was not competent for him to take an action for damages for infringement until he had registered his copyright as prescribed by the Act, and once he had registered he could sue, not sirmply in respect of subsequent infringement, but also in respect of prior infringement. The copyright given bv the Act of 1842 extended the area of conyright to the whole of the British Dominions. So that if a British subject in England brought out a book which he copyrighted, he had copyright not merely in the United Kingdom, but throughout the (whole of the British Possessions. There was no corresponding or reciprocal provision made for those who brought out their books in any of the Colonies. It was a mere oversight, apparently not intentional, and the position was that any one who brought out a book in a .British Colony obtained only the benefits of the copyright law, if any, of that Colony. In 1886, the Imperial. Parliament passed a Copyright Act which, amongst other things, granted to colonial authors - that is, to authors in British Possessions - all the advantages throughout the British Empire that were obtained previously under the Act of 1842 by British authors who obtained their copyright in the United Kingdom. I wish honorable senators to bear in mind that all these Imperial enactments have force and effect throughout the British Empire, and that the copyright law of a British Possession is only supplemental to or concurrent with the Imperial legislation which is in force. For some time there has been a tendency on the part of different nations to enter into mutual arrangements with regard to the recognition of copyright from country to country. So far as Great Britain, is concerned, this was done in 1884 by Orders in Council, and by copyright treaties with foreign countries. But in 1887 there was held at Berne a Conference, at which a number of countries were represented. The net result was the drawing up of an agreement known as the Berne Convention by which the countries there represented agreed amongst themselves each to recognise under conditions specified any copyright obtained in any of the others. The English Act of 1886 was passed in anticipation of the Berne Convention. It provided that the Berne Convention might be adopted and applied by Order in Council. An Order in Council was consequently passed on the authority of the Act after the Berne Convention had been settled. So that the Berne Convention,, the Imperial Act of t.886, and other Imperial Acts, now apply throughout the whole of the British Dominions. The result is that, if in. say. Spain, & writer brings out a book which is copyrighted there, he has also copyright in every other country which is a Dart v to the ‘Berne Convention, including Great Britain and all her Possessions. When, therefore, an author? copyrights in his own country, the protection is extended by this international arrangement throughout the British Empire. That is the position in which we find ourselves to-day. By the Act of 1886 an Australian who copyrights :his book in Australia gets reciprocal advantages throughout the British Empire, and those countries which are parties to the Berne Convention.
– Was the United States a party to that Convention ?
–It was not, and unless it has come in very recently it is not still.
– It is not.
– The duration of such international copyright in British Possessions is either the duration according to English law - that is, for forty-two years, or the life of the author, plus seven years - or the duration . under the law of the country of the book’s origin, whichever is the shorter, not whichever is the longer. Apart from our States Copyright Acts we have therefore operating in Australia the Imperial Acts from 1842 to 1896, and also by the Order in Council under the Act of 1886, the provisions of the Berne Convention. In 1891 the United States, by what was known as the Chase Act, empowered non-citizens and non-residents to acquire a copyright in books published in the United States, but amongst other conditions all the work in connexion with the composition and printing of the books had to be clone locally. It was a provision of a more or less protectionist character. The book had also to be printed in the United States prior to -its being printed elsewhere. Analogously to this, I might mention that if an American dramatist wishes to acquire performing right, or, as it is sometimes erroneously called, dramatic copyright, in Great Britain, his first performance has to be given in Great Britain, or simultaneously in point of time in Great Britain and the United States. On the question of colonial copyright, the Imperial Act of 1842 gives copyright in books published in the United Kingdom, and under the Act of 1886 a colonial author who publishes locally is entitled to copyright throughout the British dominions, and also the countries which are parties to the Berne Convention. The English statutes are very numerous. Those which apply to Australia, as well as to other British possessions, number about eighteen, running from 8 George II., chapter., 13, to 2
Edward VII., chapter 15.; and then we have the conventions of Berne qf .1887 and Paris of 1896. These statutes deal, some with engravings, some with sculpture, some with plays, some with lectures, some with books, and some with paintings. It has been remarked that they have been drawn at different times, and that there is no congruity, so to speak, characterising them. To use the words of an eminent authority, Lord Thring - ‘
They are drawn in different styles, and some are drawn so as to be barely intelligible. Obscurity of style is only one of the defects of these Acts. Their arrangement is often worse than their style. Of this the Copyright Act of 1S42 is a conspicuous instance.
There has been a disposition on the part of certain persons in Great Britain to adopt a very comprehensive and uptodate Copyright Act. I have just mentioned the conditions which the United States impose upon the acquisition of copyright. In 1875 Canada passed a Bill which would enable persons non-resident to secure , copyright, provided that it was first published in Canada, or published there simultaneously with publication elsewhere; but that provision seemed to be in conflict with the Imperial Act of 1842. Grave doubts were expressed as to whether it was competent for Canada to impose conditions on the acquisition of copyright there when that imperial Act already provided that British authors could obtain copyright throughout the British dominions. A Commission was appointed to inquire into the matter, and the result of the inquiry was that the Imperial Parliament had to pass a statute to empower the Queen to give her assent to the Canadian Bill.
– But did the Constitution of the Dominion give power to legislate as to copyright in the same way as our Constitution does?
– Yes. The conditions which the Canadian Parliament imposed were in conflict with the conditions which the Imperial Act imposed for the acquisition of copyright throughout the British dominions, and the’ result was that an Imperial Act had to be passed to empower the Queen to assent to the Canadian Bill for the purpose of setting at rest any doubts.
– Would that have to be done in our case ?
– If we passed _ a provision in conflict with the Imperial statute law which prevails throughout Australia, the Bill could not, I think, be sub- mitted for the Royal assent until an enabling Act had been passed, as in the case of Canada.
– Assuming that this Bill should become law, would .the Imperial Acts remain in force here?
– Canada copied the American principle of copyright.
– To some extent, but it was not so strict as in the United States. The Canadian Act gave rise to the consideration of many questions, and led in 1875 to a Commission being appointed to investigate the whole subject of copyright. They found all these divergencies, differences, want of harmony, and want of certainty pervading the whole statute law. They brought up a report recommending the enactment of certain provisions which would bring the copyright law into conformity with the requirements of the times. Every text book writer on the subject of copyright is constantly giving his readers cases where the utmost doubt exists as to what is the proper interpretation of the law. Scrutton, the celebrated writer on the law of copyright, speaks of the circumstances I have just referred to in these terms at page 48 of the second edition of his textbook -
It only remains to add that, the national question being settled for a time by the Act of 1842, increased facilities for intercourse, and the spread of education led to knotty questions of International and Colonial copyright. A Canadian Act of 1875, thought to clash with the Imperial Act of 1842, was the cause of the appointment of the Copyright Commission in 1875, under the chairmanship of the late Lord Stanhope, who, as Lord Mahon, had introduced the Bill of 1842. After taking much valuable evidence, it reported in May, 1878, and the changes in the Law of Copyright which it recommended still wait legislative enactment till the House of Commons shall set itself in order and make better arrangements for accomplishing the legislative work of the nation.
In the United Kingdom and Australia we have the following varying terms of copyright. In regard to books, in the United Kingdom the period is the life of the author and seven years, or forty-two years, whichever period is the longer. In New South Wales, Victoria, Queensland, South Australia, and Western Australia, the same law applies. In respect of the fine arts, including paintings, drawings, and works of sculpture, in the United Kingdom the term of copyright is the life of the author and seven years, or forty-two years whichever period is the longer. In New
South Wales and Victoria, the period is fourteen years. In Queensland the law of the United Kingdom applies. In South Australia and Western Australia, the period is fourteen years, and in Tasmania there is no provision. In the case of photographs the term is in the United Kingdom the life of the author and seven years, or forty-two years, whichever period is longer. In New South Wales and Victoria the period is three years. In Queensland the law of the United Kingdom applies. In South Australia and Western Australia, the period is three years, and in Tasmania no provision is made. In the case of engravings or prints, the term in “the United Kingdom is twenty-eight years, and in New South Wales and Victoria fourteen years. In Queensland the law of the United Kingdom applies. In South Australia and Western Australia the term ‘is fourteen years, and in Tasmania there is no provision. In the case of telegraphic news, in the United Kingdom no provision, unless there has been a very recent one; is made for protection. No provision is made in New South Wales, Victoria, or Queensland. But in South Australia there is protection for twenty-four hours from time of publication, but not to exceed thirtysix hours after receipt of the news. _ In Western Australia the term of protection is seventy-two hours from time of publication, and in Tasmania forty-eight hours from time of puBlication. To give a few instances of variations of terms of protection in different countries, whilst, as I have explained, in the United Kingdom the term is the life of the author and seven years, or forty-two years in all, whichever term is the longer, in Spain the term is the life of the author and eight years after his death.
– That is the term against which Macaulay protested as being too long.
– Quite so. In France the term is the life of the author and fifty years after his death ; and in Belgium copyright is granted for the life of the author and twenty years after his death. This Bill will, if passed into law, have effect in the Commonwealth side by side, so to speak, with the Imperial enactments already in existence in connexion with’ this subject. But we can make special provisions in our copyright law, and we can impose special conditions by which these special provisions can be secured. I will explain what this Bill purports to do. In the first place, in Part II. it sets out the method of administration, which is analogous, generally speaking, to the method prescribed under the Patents Act and the Trade Marks Bill with which we have dealt. Clause 12 provides for the transfer of the administration of States Copyright Acts to the Commonwealth. In Part III. copyright is defined. It includes the exclusive right in connexion with books and musical and dramatic compositions to do certain things specified. Amongst those things is included the right to abridge or translate a book. Those are rights which, under some conceptions, do not exclusively, belong to the owner of a copyright. But we are making special provisions in these particulars. Also in paragraph b of clause 13 we make provision in the case of a dramatic work for the owner of the copyright to have the exclusive privilege of converting it into a novel, and for the converse. That is to say, we reserve to the author the right to novelize a drama or to dramatise a novel. The Bill also provides that copyright shall subsist in every book, whether the author is a British subject or not, which book has first been published in Australia before, or simultaneously with, its first publication elsewhere. We do not make that a condition of copyright in any case ; but we say that if the book has been first published in Australia simultaneously with its publication elsewhere, copyright shall subsist in that book. The word “ simultaneously “ means according to a definition in the Bill itself within fourteen days. Of course we cannot take away the copyright here which an author may have acquired in Great Britain, or in any of the countries having relation to Great Britain under the terms of the Berne Convention. But this provision simply makes it clear that when a book is published in Australia copyright under this Act shall subsist in it, and that all the advantages of this measure shall be given to it. We provide throughout this Bill a uniform period for copyright of a book, or of an artistic work including photographs for the performing rights in a dramatic or musical production, and for the lecturing right of a “lecture. That period is the life of the author of the book, of the work, or of the’ lecture, or of the owner of the dramatic or musical work, with thirty years added in each case.
– Will a sermon receive the same protection as a lecture ?
– No; special provision is made that sermons and political addresses do not come under the provisionsof this copyright measure.
– What ! Is there tobe no copyright in political addresses?
– If the honorablesenator chooses to deliver a political address as a lecture, and takes steps to preserve the copyright, perhaps he may .do so. Otherwise political addresses are excluded from the benefit of this Bill. The term of thirty years from the death of the author isadopted in consequence of the recommendation of the Imperial Royal Commission, towhich I have referred. I may add that this Bill has been drawn largely upon the lines recommended by that Commission, whose report has been published, and is available in the Library.
– Those recommendations are, I think, a little in advance of the English copyright law.
– Yes, they are.
– They have not been adopted in Great Britain.
– No, owing to the reasons explained in the text-book of Mr, Scrutton, from which I have quoted.
– What is the date of that Commission ?
– The date of itsreport is 1878. It is further provided in the measure that the author of a book or artistic work shall be the first owner of the copyright in that book or work ; that the author of a dramatic or musical work shall be the first owner of the performing right; and that the author of a lecture shall be the first, owner of the lecturing right. I may mention with regard to lectures that a lecturing right may be preserved by the author in a very simple manner - by announcing orally before he delivers his lecture that he reserves to himself the lecturing right, or by means of a written announcement placed conspicuously in the hall where the lecture is delivered; the idea being, of course, that it may not be suggested that once a man has prepared his lecture and delivered it tothe public he has necessarily dedicated it to the public.
– That hasbeen decided in Caird’s case in regard toUniversity lectures. A man is entitled to take notes for his own use, but not for publication.
– There are special provisions in the law with regard to certain University lectures. It is obvious that, should the author so desire,, a man should be restrained, after having heard a lecture, from re-delivering that lecture orally, just as he should be restrained from taking a full note pf it and publishing it as a book. A provision is therefore made in the Bill to reserve the lecturing right in a lecture to the author of it, provided that he complies with some very simple conditions. Of course, if he prints his lecture and publishes it, he makes it a book, and may at once secure the protection which belongs to copyright in a book. Provision is also made for the case of joint authors and separate authors, and also for the case of encyclopedias and periodicals, and articles contained in such publications. These, however, are all of them rather matters for consideration in Committee. Provision is made in the clauses regarding copyright in articles published in periodicals, which secure in all circumstances due consideration, both for the owner of the magazine or periodical, and for the writer of the ‘article. Provision is also made in the Bill for insuring that copyright shall be personal’ property, and be capable of being dealt with as such. In -clause 29 it is provided that, although the right of translation is reserved to the owner nf a copyright, unless a translation of his book into a particular language is made within ten years from the date of publication, a person desirous of translating the book may make an application to the Minister, who may call upon the author or owner of the copyright to show cause why the applicant should not be allowed to make a translation. If the owner or author is not in a position to show cause, the Minister may grant the application pf the person desirous of making the translation.
– Is it intended to restrain American publishers from sending copyright books to Australia, as they do not extend recognition to our copyright law 7
– lt is provided by the Customs Act that copyright books cannot be introduced into Australia from piracies of any country. There are- other provisions in this Bill of a drastic character nearing upon the same point, to which I shall later on refer. In clause 33 the proprietor, of any news agency or newspaper is granted copyright in news obtained exclusively by him abroad for a period pf twenty-four hours. Part V. of the Bill deals with infringements of copyright. In this part of the measure Senator Walker will find ample provisions such, as he desires. There is, first, the ordinary common law action for damages in case of breach of any of these rights. That applies both to copyright in a book or artistic work, to performing rights, and to lecturing rights. ‘ In the case of an action for damages, if the defendant objects to the plaintiff’s title, he has to give notice of his grounds, so that the plaintiff shall not be taken at a disadvantage. In clause 50 Senator Walker will find that -
If any person (a) sells Or lets for hire, or exposes, offers, or keeps for sale or hire any pirated book or any pirated artistic work ; or (t) distributes or exhibits in public any pirated book or any pirated artistic work ; or (c) imports into Australia any pirated book or. pirated -artistic work, he is guilty of an offence and liable to a penalty. But there is a proviso that- no person shall be convicted of an offence if he proves to the satisfaction of the Court that he could not, “ with reasonable care,” have ascertained that the book or artistic work was pirated. We also provide that where there is an infringement of a dramatic or musical right, the person who has let the theatre or place of. entertainment where that infringement has taken place, may be prosecuted for” an offence, except that if the person prosecuted proves that he “ could not with reasonable care,” have ascertained that, the work was performed in infringement of the rights of the owner, he is not liable. I may explain that in most instances, the managers or authors who own copyrights in dramatic and musical works, invariably circularize the owners of theatres and other places of entertainment, and lists are in consequence generally kept in respect of pieces in which copyright subsists. Clauses 52, 53, 54, and 55, are provisions ‘to which I invite the attention of the Senate, before the Bill gets into Committee. The united effect of them is this : Many piracies take place on the part of persons against whom it is useless to proceed for damages, or to take out an injunction, because, to put it in the vernacular, they are not worth powder and shot. Therefore, some summary remedies have to be provided to give authors protection against such piracies. In this instance, we make provision that a justice of the peace, may, on the application of any owner of a copyright, issue a search warrant, and order a search to be made,. the pirated goods may be seized, and the magistrate, may deal summarily with the matter of their disposal. We also make provision that the owner of the copyright, if he has reason to suspect that a person has pirated copies in his possession, may, by notice, require that person to deliver up the copies, and if the person does not do so he is guilty of an offence, punishable summarily, and liable to a penalty of j£io. But having armed the owner with a summary remedy, it is only fair to the other person and the community generally that the owner1 should be put in such a position that he will not exercise the power without due caution. Therefore, it is further provided, under penalties, that the owner shall npt give any such notice without just cause, and if he is prosecuted for giving notice without just cause the onus of proof is put on him that he is the owner, and that at the time he took action he knew or had reason to believe that such copies were in the other party’s possession. These are some of the special provisions of the Bill, by which we propose to give protection to international copyrighted works, so long as they are registered under the Biff. The other provisions simply deal with pirated works generally. Part VI. deals with international and State copyrights, and provides for the protection of all such copyrights in existence in Australia prior to this measure. It is also provided in Part VI. that anybody who has either an international copyright or an Imperial copyright - and the latter includes the international - may register, and thus, in addition to all the privileges, powers, and rights he at present enjoys by virtue of the Imperial Act and the Berne Convention, he may then obtain all the facilities, privileges, and powers which are granted by the Bill, but which neither the Berne Convention nor Imperial legislation secures to him. It is simply provided that if a book be first published in Australia, or published simultaneously here with ‘its first publication elsewhere, it has all rights under this Act apart from registration; and that the owner of an international or Imperial copyright, i’f he wishes the additional privileges! of this Act, mav:obtain them by the simple method of registration. Part VII. deals with the method of the registration of the copyright, and of the assignment and transmission of interests ; and the other provisions relate to the rectification of registration, and the necessity pf an owner registering before he sues for damages. The final part of the Bill simply makes provision against the suppression of books, and for regulations. If honorable senators have regard to the condition of the present law_ with the Imperial Act, the various State Acts, and the provisions of the Berne Convention in relation to international rights, all operating - they will see how necessary it is to have some clearly! defined1 system of legislation for the whole of the Commonwealth. This Bill is intended to meet the situation, and in great part it follows very largely the lines laid down by the Imperial Commission, which bestowed a great deal of care, attention, research, and thought to the whole subject. I think I can say with confidence that if the Bil] be passed in its present- - or anything like its present format will be regarded, not only in Australia, but in other parts of the Empire, as marking a distinct advance in legislation - perhaps the greatest advance that has been made on this subject, and one well in conformity with, and not behind, the necessities of the times.
Debate (on motion by Senator Millen) adjourned.
Senate -adjourned at 10.20 p.m..
Cite as: Australia, Senate, Debates, 24 August 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050824_senate_2_26/>.