3rd Parliament · 2nd Session
The President took the chair at2.30 p.m., and read prayers.
Senator Colonel. NEILD.- When I received a Hansard proof this morning, I learned that a very disgraceful accusation was made against me in the Senate last night by Senator Pearce, in saying that I, as a member of the Disputed Returns and Qualifications Committee, prophesied what its report would be. Last night I did not hear the interjection properly, and so I take this opportunity of repudiating, in the most emphatic manner in which any living creature could repudiate such a charge, that I ever gave any justification for the accusation. Never at any time did I indicate in the remotest manner what the decision of the Committee would be. The words attributed to Senator Pearce are -
The honorable senator was a prophetic member of the Committee, he prophesied what the report would be.
I can say that the honorable senator had not the most extremely remote excuse for making so serious an imputation against me.
Senator PEARCE.- When I made the statement read from the Hansard proof, I referred to the motion which was put on the notice-paper by Senator Neild some weeks, if not months, before theCommittee reported, and which practically set out in terms the gist of its report. My meaning was that the honorable senator was prophetic in that before the Committee had sat he had passed judgment. I have just been furnished by an honorable senator with a copy of the noticepaper for the 1 8th July. On the 17th July the honorable senator gave notice of his intention to move on the 25th July the following motion -
That this Senate affirms -
That the declaring absolutely void, by the Court of Disputed Returns, the return of Mr. Joseph Vardon as a Senator for South Australia, did not create a casual vacancy within the meaning of section 15 of the Constitution.
That any promise, by whomsoever made or given, to pay the expenses arising in connexion with any appeal to the High Court or the Court of Disputed Returns in respect of any choice, under section 15 of the Constitution, by the Parliament of South Australia, of any person asa Senator, would be bribery within the meaning of section 175 of the Commonwealth Electoral Act.
That the choice ofa person to be a Senator to fill the existing vacancy, by the Parliament of South Australia-, would be an unconstitutional interference with the rights of free choice of the people.
That notice of motion was given before the Committee had met or deliberated, and it was in that sense that I meant that the honorable senator was a prophet.
Senator Colonel NEILD. - It is imperative on me to point out, as Senator Pearce ought to have done, that when I gave that notice of motion I was not a member of the Committee of Disputed Returns and Qualifications. There was no Committee in existence, and after or before it was appointed the notice of motion was withdrawn.
Senator Findley. - The honorable senator ought not to have remained oil the Committee, as he had a preconceived idea on the subject.
The PRESIDENT. - Order.
Senator Colonel NEILD. - The accusation is made against me as a member of the Committee. I wasnot a member of the Committee when I gave the notice of motion, and I withdrew it long before any question relating to the subject came before the Senate.
Senator PEARCE. - I ask for the indulgence of the Senate to make an explanation with regard to the contradiction just given by Senator Neild. If honorable senators will refer to to-day’s noticepaper they will see that the Disputed Returns and Qualifications Committee was appointed on the 5th July, whereas the notice of. motion was given on the 17th July.
Senator Colonel NEILD. - I am quite certain that I did not give the notice with any knowledge that the President had nominated me as a member of the Committee, and I do not think that I had been nominated. At any rate, if there was any exception to be taken to my action it should have been taken when Mr. President nominated me as I was a member of the Disputed Returns and Qualifications Committee.
asked the Minister representing the Minister of Trade and Customs, upon notice -
What have been the respective receipts from the Excise on sugar of the several States and the Commonwealth since1901, and what have been the payments in rebates or bounties on account of white-grown cane by the several States for the same years?
– The answer to the honorable senator’s question is as follows -
I will lay upon the table of the Senate, during the sitting, a return which will furnish the information required.
MINISTERS laid upon the table the following papers : -
Sugar - Excise Receipts and Bounty Payments since 1901.
Defence Acts 1903 -1904 - Regulations for the Military Forces of the Commonwealth : Amendment of Regulation 568 - Statutory Rules 1907, No. 104.
Motion (by Senator Colonel Neild) agreed to -
That leave be given to. bring in a Bill for an Act to amend the Act No. 16 of 1906.
Petition of Mr. J. Vardon : Report of Committee of DisputedReturns and Qualifications.
Debate resumed from 16th October (vide page 4747), on motion by Senator Sir Josiah Symon -
That the report of the Committee of Disputed Returns and Qualificationson the petition of Joseph Vardon against the choice of the Honorable James Vincent O’Loghlin as a senator for the State of South Australia, brought up on 9th October, 1907, be adopted.
Upon which Senator Best had moved by way of amendment -
That all the words after the word “That” be left out, with a view to insert in lieu thereof the following words : - “ in the opinion of the Senate the place of a senator rendered vacant by decision of the Court of Disputed Returns on the petition of Reginald Pole Blundell against the return of Joseph Vardon has been validly filled by the choice of James Vincent O’Loghlin by the Houses of Parliament of the State of South Australia in accordance with the provisions of section 15 of the Constitution, and that the petition of Joseph Vardon presented to this Senate be disallowed.”
– There is an old saying that* “Fools rush in where angels fear to tread.” It is not a pleasant task for me to speak on this motion, especially as it is considered to involve a question of law, or, as it has been called repeatedly, a question of “ dry law.” So far three members of the legal profession have addressed the Senate. I am not sure as to what Senator St. Ledger meant when he spoke, but the other two senators - Senators Symon and Best, who are leading luminaries in the profession - differed very considerably from each other. My intention is to treat the subject in a rather different way. I propose to enlighten the Senate, if I can, with reference to the history of this unfortunate election, in which I, like the leader of the Opposition and the mover of this motion, was concerned.
– Is the honorable senator sure thai Senator Symon is the leader of the Opposition ?
– I hope to obtain protection from you, Mr. President, this afternoon. I admired the manner in which you managed the business of the Senate when Senator Symon was speaking yesterday. I believe that if a mouse had crawled across the floor during the pauses in his speech, we should have heard it. Although some honorable senators may be familiar with the history of that election, I ask for the indulgence of the Senate while I refer to what transpired during the election. It was a party election from start to finish. The candidates were Senator Symon, Mr. Vardon, and Mr. D. M. Charleston, an ex-senator, who were run by the Conservative Party for all they were worth; ex-Senator Playford stood as the representative of the Government of the Commonwealth, and the other three candidates were Mrt Blundell!, Mr. Crosby, and myself. We had about three months of hard work over the election, travelling all over South Australia. I and my two comrades were supported by the Labour Party. Senator Symon was supported by the other side, and one of his comrades on that occasion was the petitioner. I do not say that Senator Symon would do an unfair thing; but I put it to the Senate, if I had the honour of being elected to the Committee of Disputed Returns and Qualifications, with four other senators from this side of the Chamber, do honorable senators think that the decision of the Committee would have been the same? Would the other side have been so well satisfied as they are today? I am afraid that they would not.
– The decision would have been the same if they had been conscientious.
– I do not wish Senator- Symon to make my speech on this occasion. I am here to let the Senate know exactly where I stand as a representative of South Australia, and to defend the action taken by the Parliament of that State, because they were commanded to take it. I shall support the amendment moved by the leader of the Government in this Chamber. When the election took place, and the votes were counted, it was found that Senator Symon and myself were ahead, and that Mr. Crosby, who unfortunately , has since died, was fourteen votes ahead of Mr. Vardon. The latter, who is the petitioner in this case, was the first to take action. He asked for and obtained a recount. It was discovered that a remarkable incident had occurred at Hindmarsh., whereby Mr. Crosby had received some eighty votes which were meant for Mr. Playford. When those were deducted from. Mr. Crosby’s votes, and other figures rectified, Mr. Vardon was declared to be thirty-four ahead. We were told yesterday that Mr. Vardon, never was elected, and therefore never was a senator. If it had not been for the Labour Party taking action to have a petition presented against his return, Mr. Vardon would have been sitting here to-day as a senator, unchallenged in any respect. It is therefore a matter of circumstances that Mr. Vardon was bowled out, and his election proved invalid. After the recount, by which Mr. Vardon was found to be thirty-four votes ahead, a petition from Mr. Blundell, who is now a member of the South Australian
Parliament, was brought before Mr. Justice Barton, sitting as a Court of Disputed Returns. The fresh recount reduced Mr. Vardon’s majority from thirty-four to two, but a large number of informal votes were considered. It appeared that there had been a great deal of bad management in the election, and that some of the deputy returning officers either had not initialed the ballot-papers at all, or had initialed them on the wrong side. Mr. Justice Barton stated - I did not hear this quoted by Senator Symon when he was speaking yesterday - that if those votes, which the electors gave in all honesty and straightforwardness, could have been counted, had they been properly initialed, and had the Court been able to accept them, Mr. Crosby would have been four votes ahead.
– I mentioned that yesterday.
– I accept the honorable senator’s statement. But I wish to mention that I had the privilege of attending a meeting of the Committee of Disputed Returns and Qualifications for a short period, when my friend of many years standing, Senator O’Loghlin, was defending his case. Actuated by sympathy, and also by a little curiosity, I succeeded, after waiting a good while, in entering what a Melbourne paper brutally called the “Star Chamber.” I am not responsible forwhat the press said, and I donot apply that name to the proceedings of the Committee, but I know, and if allowed I could produce the statement that was actually made, that when Senator O’Loghlin, a layman, rose to put his version of the case, in the presence of a legal adviser on the other side, he met with all manner of opposition from the chairman of the Committee.
– Is the honorable senator in order in imputing unfairness to the chairman of a judicial inquiry such as this was?
– ‘The honorable senator is not in order in imputing unfairness to anybody who presided at, or took part in, the meetings of the Committee of Disputed Returns and Qualifications. It is also irregular to allude to what took place at meetings of a Committee to which it is understood that the public were not admitted.
– I understood that honorable senators were allowed to enter the Committee room. I shall not dispute your ruling, sir, but I have managed to state what I conscientiously believe to be true.
– To cast a little mud.
– I have done nothing of the sort.
– Order ! I ask honorable senators not to interject.
– I object to Senator McColl’s remark, and expect him to withdraw it.
– I ask Senator McColl to withdraw the statement.
– If the statement is distasteful to the honorable senator, I have no objection to withdraw it.
– Should not Senator Russell withdraw the statement of a similar character which he made?
– I ask Senator Russell to withdraw the imputation that partiality or opposition was shown by the chairman of the Committee when Senator O’Loghlin was addressing it.
– Thank God, I am not on my oath. I withdraw the statement in accordance with the forms of the Senate
– When a withdrawal is requested it must be made without qualification. For the honorable senator to say that he withdraws a statement because he is not on his oath is practically to repeat it. I ask him to withdraw the statement unreservedly. The honorable senator will see that that is necessary if we are to conduct our business properly.
– I withdraw the statement. I had quoted Mr. Justice Barton’s statement that Mr. Crosby would have been four votes ahead. Therefore, had those informal votes been allowable, Mr. Crosby would have been elected by the people. The Senate knows as well as I do what muddles took place in connexion with the election. There were not only those informal votes, which would in all probability have turned the election, but when the second re-count was being conducted an official stated on oath that a large parcel of ballot-papers had been burnt. It has since been discovered that they were not burnt. Without casting any reflection on the Committee of Disputed Returns and Qualifications, I may say that the fact that those ballot-papers, which were alleged to have been burnt, had been discovered intact, became public property while the Committee were sitting. Seeing that the election was so closely contested, I thought with the man in the street that it would have been a proper thing for the Committee te have taken some action to have those ballotpapers counted.
– They had no power to do anything of the sort.
– Senator Turley knows all about it, but I am only a layman and am expressing the view which a lot of people took of the matter. The alleged burning of those ballot-papers was one of the grounds on which the election was upset, and seeing that there had been such a close contest I thought it would have been wise to have had those papers counted. On ‘the declaration of the poll, three persons were declared elected as senators; Senator Symon, myself, and Mr. Vardon. Their election was duly certified. I believe that Senator Vardon on that very day took the afternoon train from Melbourne in order to visit Queensland. There was no harm in his doing that, and I do not blame him. He was reaping the benefit of a free pass, and yet according to one of his colleagues he never was a senator.
– Not according to me, according to the judgment of the Court.
– According to the statement made by Senator Symon, I do not think the honorable senator studied the judgment of the Court very much.
– Did Mr. Vardon’s visit to Queensland make him a senator?
– No, but it showed that he acted as a senator from the beginning. He occupied a seat in this Chamber and voted on the Conservative side on two or three occasions. He occupied a seat as a senator, and drew salary for nearly six months. I do not blame Mr. Vardon for that, because in my opinion he was entitled to do so, since he had been elected a senator. Some persons have said that he should have returned the salary he received. I have heard it stated that Mr. Vardon, not being a. senator, should not have drawn six months’ pay at the time. I am not one of those who hold that view, because I think it would be a cruel shame to expect Mr. Vardon to refund the. money. I think that the Government should have borne some of the expense to which he was put through no fault of his own. He was declared by the Returning Officer to have been duly elected. We heard yesterday from the other side that that was illegal and improper, and from this side that it was quite legal and proper, and I must say that between the VicePresident of the Executive Council and the leader of the Opposition, I give Senator Best the palm. I direct the attention of Senator Millen to the peculiar position taken by a constitutional lawyer like Senator Symon in suggesting that we should decide this matter in accordance with the view of the man in the street rather than according to ihe Constitution. I do not say that the honorable and learned senator was unfair, because it may have Deen his opinion, but he demanded that in dealing with this maner a lot of notice should be taken of the opinion of the man in the street. I have often heard something very different from Conservatives. I have heard the men in the street spoken of as “the mob,” “the masses,” “the dangerous classes that cannot be trusted.” What has happened to bring about so great a change? What is behind it? Is it that a bird in the’ hand is considered worth two in the bush ? Do honorable senators opposite hope that possibly a Labour senator may lose his seat and be replaced by a Conservative, and that thus the balance of power in the Senate might be wonderfully altered ?
– Is that why the honorable senator intends to vote as he does?
– I know that Senator Millen does not wish to put me off the track. I have to deal now with a difficult legal question. I am not accustomed to the work, and I need a little consideration. I wish to stand, by the Constitution. I come now to the kernel of the question. A vacancy was created, and how was it to be filled ?
– By the people.
– That is what I should like the honorable senator to prove. Was it to be filled by consulting the man in the street? I know that Senator Sayers does not believe in the man in the street ruling the roost. We know that Conservatives throughout the world are opposed to trusting the people.
– The honorable senator will not give them a chance.
– There is . a time for everything. There is a time for each individual to play his part. We have a grand Constitution, which was framed by fifty eminent gentlemen, thirty-five of whom were lawyers, and accepted by the people, and it is not to the man in the street that we should appeal for the opinion of a constitutional lawyer as to how that Constitution should be interpreted. Yet that was Senator Symon’s suggestion. As a representative of South Australia, I heartily indorse the action taken by the State Parliament in connexion with this matter. You, Mr. President, were advised that a vacancy had occurred. You communicated with the Governor of South Australia to that effect, and that steps should be taken to fill the position. The Attorney-General of the Commonwealth, and some of the leading legal luminaries of Melbourne, were consulted on the constitutional question, and, as a result, the Commonwealth. Government decided that the vacancy was one which should be filled by the State Parliament of South Australia.
– The State Government took the advice of their lawyers also.
– I am coming to that. We have a Labour Premier in South Australia, and, in dealing with this matter, the Labour Government of that State called in the advice of counsel. They consulted the Crown’ Solicitor of the State, Mr. Glynn, a member of another place, and another gentleman, of whom Senator Symon spoke very highly yesterday. Three legal luminaries in South Australia were consulted by the Government of the State before they decided what steps should be taken. These lawyers were unanimous that, according to our grand democratic Constitution, there was no choice open to the Government in the matter. The South Australian Government then decided - to use what I hope is a legal expression - to carry out the mandate of His Excellency the Governor of the State. We know that things are only middling between the two Houses of the State Parliament of South Australia, but both were consulted in the matter. There were only two candidates, one, Mr. Vardon himself, who is now petitioning against the action of the State Parliament, and the other, Senator O’Loghlin. By a large majority of the members of the two Houses of the State Parliament, Senator O’Loghlin was declared elected. I can further say that the honorable senator never approached a single soul to secure nomination for the position, or to secure support at the election. I know that for a fact. Senator O’Loghlin was informed and had reason to believe that he was duly elected, and had a right to take his seat accordingly. The possession of that seat is at the present time of great importance both to labour and to conservatism. An appeal was made to the High Court which, however, did not decide the question, but said that it was one for the Senate itself to decide. It is, therefore, for us to say whether there was a vacancy or otherwise. It is true that there is an alternative. The existing law can be amended. Parliament has power to amend the provision of the Electoral Act relating to the method of deciding how a casual vacancy shall be filled up. The Senate therefore is responsible for a difficulty, and ought to grapple with it. It is said, “ Why not trust the people? Why does not the Labour Party agree to have an election?” We are not afraid to have an election. We have not yet had a choice in the matter. The Parliament of South Australia received a command from His Excellency the Governor to do a certain thing. The course which we were directed to pursue was held to be the right one in the opinion of leading lawyers both in Victoria, the centre of the Commonwealth, and in South Australia. What else could South Australia do but fill the vacancy? But it is remarkable to see conservatism advocating that the people should be consulted. . I have referred to the various legal authorities who were consulted by the State Government. Those opinions are in print. They are surely worth something. But Senator Symon yesterday virtually asked, “ What are those opinions worth in comparison with mine “ ? The honorable senator did not grapple with the arguments, but simply pooh-poohed them.
– Lawyers can differ.
– Of course they differ, but when we find five leading luminaries on the one side, and another lawyer taking upon himself to pooh-pooh their opinions it seems to me to be egotistical. Reference has been frequently made during the debate to the position of South Australia. It has been said that she is not properly represented. Several honorable senators profess to he anxious about her interests. But in my belief South Australia is satisfied that the proper constitutional course has been followed. It is all very well for those honorable senators who may dislike labour politics and a labour Premier to express dissatisfaction with what has happened. But suppose the vacancy had occurred in little Tasmania, and that the two Houses of Parliament of that State acting together had selected a senator. I do not think that under those circumstances the same objection would have been taken.
It was refreshing to hear some of the remarks made by Senator Symon in favour of trusting the people. Really, if a very few alterations were made in his speech, and some words were cut out and. others inserted, it would make a good democratic address. It seems strange to hear such sentiments coming from the High Priest of Conservatism. Before I conclude I should like to say a word or two in regard to what has been mentioned by Senator Neild. I do not say that the honorable senator is prejudiced, but when we find a senator expressing his opinion on a particular case in such an outspoken way as he did in the form of a motion that he intended to bring before the Senate, it certainly looks like judging the case without hearing the evidence.
– The honorable senator is not fair to his own reputation.
– I do not say that the honorable senator was prejudiced, but most men would consider that something of the kind was the case in view of the fact that he had expressed himself so strongly. Of course, I do not say that the honorable senator did not act according to his own judgment and ability, but if I had acted as he has done I do not think that honorable senators would allow me to escape blame. I hope that I have referred to Senator Neild in a respectful fashion. May I also say a word about my colleague, Senator Symon. At the polls we fought on opposite sides. It was a case of labour versus conservatism. He has since had the honour of acting as principal judge in this matter. I do not say that he has acted unfairly. Indeed, I dare not say that. But I do say that the result of adopting the Committee’s report would be to give the party to which he belongs a very considerable advantage. I hope that the Senate will not overlook that consideration. I only hope that when the division is taken it will not be proven that it has been dealt with as a party question. When I looked at the benches opposite yesterday and saw that nearly every conservative was in his place I was reminded of a sermon to which I listened recently. Last Sunday night I heard Professor Rentoul say that he had attended the Federal Parliament once, and once only. He said he was disgusted they did no work, and that there were only eighteen present. If he had been there last night and seen so many present representing conservatism he might have come to the conclusion that Burns did when he wrote -
That night, a child might understand,
The de’il had business on his hand.
– I wish, if I may be permitted to interpose with an explanation, for a moment, to refer to what Senator W. Russell has said with reference to my attitude on this matter. When I looked up the records, I found that there was some justification for what Senator Pearce put forward previously. I wish merely to state the facts. On the 4th July, I gave notice of a motion in connexion with the South Australian vacancy, and it was a vacancy at the time. On the following day, Mr. President nominated the members of the Disputed Returns and Qualifications Committee. A reference to the Journals shows that I was not present either on that day or during the following week, as I was ill in Sydney. I give you, sir, and the Senate, my assurance that for some length of time I did not know that I had been nominated on the Committee. Senator Best spoke to me later on, at a time when there seemed to be a prospect of the matter coming to the Senate, because, for some time after the appointment of the Committee, it was before the lawyers, and then drifted into the High Court. When, afterwards, there seemed to be a chance of the matter coming here, Senator Best said to me, “ Of courseyou will not go on with your motion.” I replied, “Of course not;” and his next words to me, I think, were, “ I thought that you would not; I thought you had respect for the proprieties of Parliament, and. would not go on with the motion.” I think that is what the honorable senator said to me.
– Yes; as it was practically sub judice.
– Exactly. I therefore withdrew the notice of motion. I would point out, if I am in order, that if any exception is taken to my action on the Committee, the responsibility lies with the Senate, every member of which had the right to object to my nomination.
– Order; that is not a matter for a personal explanation.
– I have no more to say, sir. I moved in the matter before I was a member of the Committee, and when afterwards it came before the Senate, I dropped the notice of motion. The notice of motion disappeared from the business-paper on the 26th July, and Vardon’s petition was not presented till the 23rd August.
– I shall not attempt to enter into the legal technicalities of the debate. I presume that if I did make such an attempt, the result would very probably be a miserable failure. In that respect, I think I would very much resemble a good many of our lawyers who, from time to time, give us the benefit of views, either well thought or manufactured for the occasion. What I want particularly to do is to indicate how the debate has appealed to the mind of a layman. We all recognise the importance and the delicacy of the question at issue. The layman finds that he. is called upon not only to review a very intricate issue, but also to give a sort of judicial decision, after he has reviewed it, on what may be termed the lines of commonsense. . Yesterday, we were treated to two very able speeches. In the first instance, we had an excellent speech from Senator Symon, when submitting the motion. In coming to a conclusion, those two speeches have been . very helpful 10 rae. particularly the one delivered by Senator Symon. Undoubtedly it was an able speech, and from a layman’s point of view, it showed that there was a decided weakness on the side for which the honorable senator was contending. He had no sooner entered into the preliminaries of ‘his speech than he gave us to understand that all matters of law were absolutely foreign to the subject which he was handling, and that there was only one side of the Question. Can any one conceive of any force in a statement of that character, made in the presence of the report which he was advocating, and the decision which brought that report into our hands? Again, can any one conceive of the honorable senator abandoning once and for all the handling of intricate points of law ?
– Did he do so?
– -Unquestion- % ably. On the floor of this Chamber the’ honorable and learned senator stated that there was no law concerning the matter.
– No ; what
I said was that the only technical legal question, as I considered it, was that under -action 13, and that the High Court had disposed of it.
– Let me try to state what the honorable and learned senator conveyed to me. Standing beside the table he stated that it was so far out of the influence of the law that the whole matter was as simple as simplicity itself.
– I said that to me, with the assistance of the High Court’s judgment, the question was a simple one, and so it is - to me.
– It may be a very simple one to the honorable and learned senator. But I can assure him that, no matter how simple it may appear to him, every vestige of simplicity passes away when the layman, after reading that judgment and his report, begins to consider the question on its merits.
– Well, the honorable senator will get an opportunity of explaining one “or two of the very simple issues which are involved in this great question. In the report signed by Senator Symon we find this statement -
Your Committee therefore have arrived at the conclusion that there was not a vacancy within the meaning of’ section 15, and that the Houses of Parliament of the State of South Australia were not entitled- to choose a. person to hold the vacant place in the representation of the said State in the Senate.
We all understand that language. We are well aware of its meaning. Then we come to the fact that the South Australian Parliament, before it made any attempt to assume any responsibility, applied to the legal mind for guidance. I have no knowledge of the gentlemen who gave legal advice to the State Parliament. I know Senator Symon and understand the value of many of his legal opinions, and I give the other lawyers the credit of occupying an equally high standing with himself. I read that those gentlemen advised -
The procedure to be adopted in view of Mr. Justice Barton’s order will be to have a person chosen by both Houses of Parliament sitting and voting together to fill Mr. Vardon’s place until the expiration of what was his term of office, or until the election of a successor at the next election of senators for the State, whichever first happens.
Along with that we have the petition from Mr. Vardon asking the Senate either to unseat Senator O’Loghlin at once,- or to refer the matter to the High Court. In the name of honest, sound common-sense, wherein lies the simplicity of a case which is so conflicting in all its ramifications? Then take the other illustration. First we had Senator Symon standing here and arguing for the motion for all he was worth, and next we had the leader of the Senate, in an equally forcible speech, and with undoubted evidence to prove his contention, telling us that the honorable and learned senator was altogether astray in his con-, elusions. We had two eminent lawyers face to face, one beginning on an altogether opposite premise to that of the other and each arriving at a diametrically opposite conclusion.
– That is usual.
– Then the honorable senator sees how simple the point is.
– Cannot they make simplicity abstruse?
– The honorable senator sees what a simple case it is for a layman to adjudge after listening to the .conflict between the two legal luminaries I have mentioned. Then followed a speech from Senator St. Ledger. I do not (know how high he stands in his profession,, but after he Had discussed the legal aspects of the case it struck me that he had made the issue as ‘clear as mud. I have been led to the conclusion that I have come to by the conflicting opinions that have been given by men who may be termed , , +notchers” in the legal profession. Not only has simplicity vanished entirely from the issue, but the discussion has shown clearly that there is a strong possibility of our inflicting an injustice unless we are most careful in arriving at our decision. That is why I ask that we should try,’ as laymen, to. forget the speeches which the lawyers have made. Let those speeches stand in Hansard as records for the curious of future ages to read, but let us not be influenced by them. No layman can honestly say that it would be wise, or conducive to an equitable decision, for us to be influenced at all by what those learned senators have said. There has been a great deal of argument about submitting the question to the people for their decision, and Senator Symon certainly used that argument for all that it was worth. It warms one’s heart to hear the Conservatives advocating that side of the question. I like to hear them arguing for giving effect to the will of the people. It will most likely be the last time that ‘ever we shall hear them do so. I have, always trusted the people.
– Then why not allow this case to go to them?
– -Because I believe that the Constitution says that it ‘ should not go to them. I am not responsible for the Constitution. My view has always been that every man who enters this Senate, after either a periodical or an extraordinary election, should only come here with the stamp of the people’s will upon him. That was my contention in the days of the Convention.
– The honorable senator is trying to block it now.
– I am doing nothing of the sort. It is the honorable senator’s party who have blocked it. The provision which has been put into effect in this case was the only straw that the Conservative element of Australia could cling to in the Convention. Senator Dobson cheered Senator Symon’s remarks most heartily, but let honorable senators read Senator Dobson’s speeches as recorded in the proceedings of the Convention and see the attitude that he took up. What a staunch champion he was of the people’s will ! What an ardent advocate of having everything done by the people ! It warms one’s heart to hear these real downright Tories cheering sentiments such as were uttered by Senator Symon yesterday. The Constitution fixes the legitimate course to take in this case.
– That is the very point at issue.
– If there is anything clear in this case- at all, it is the fact that the Constitution: has already taken this matter away from the hands of the people. I admit that Senator Symon tells us that, because Mr. Justice Barton declared Mr. Vardon’s- election to be void after a period had expired, the election was absolutely void before that period began. I do not pretend to be an authority upon the English language, but that is the most strained interpretation of the language that I ever came across in my life.
– Was the man reallyelected ?
– He was elected, and he was declared elected. He.took his seat in this Chamber with all the rights of a senator elected by the people. He took the oath at the table, having every reason to believe that he was elected, and that he had the stamp of the people’s. authority which each and every one of us bears when we come here. In so doing he did exactly what any other man in his position had a right to do. It was only when it was discovered that gross blunders had -been made, and that even our present electoral system has so many, faults that the whole position ought to be viewed most seriously by us, that his return was petitioned against. Like scores of others whose return has been petitioned against, he fell, but the fact that he fell does not weaken in the slightest the provisions of the Constitution, nor does it justify us in taking any other course than to supportthe amendment moved by the leader of the Senate. That is the position which I intend to take up. So far as concerns the suggestion to send the question to the High Court,I shall not have the slightest compunction in assisting to pass any legislation to refer all future cases of disputed returns to the High Court for decision.
– And not make it retrospective ?
– To make that legislation retrospective wouldbe to inflict a decided injustice. Whatever we do in that direction, let us do it honestly, and like men of common-sense. Let us seek to amend the Constitution so as to provide once and for all that every senator who comes to this Chamber shall come in all circumstances with authority from the people themselves.I do not want any House of Parliament to have the power to elect a senator. That provision was the last straw to which the conservative element could cling in the framing of the Constitution. If honorable senators are honest in their arguments, if they are sincere in their advocacy of submitting these matters to the people, let them set about removing from the Constitution every provision that enables a State House of Parliament to fill a vacancy in the Senate. It is undemocratic and absolutely wrong. But if we cannot remove that provision now let us carry out the Constitution as it stands to the very letter, and apply to this case the provisions of section 15, which indisputably governs the issue beforeus.
. -I had not intended to take any part in this debate, but to-day several honorable senators have’ begun by saying that they would consider the case from a layman’s point of view, but have concluded by quoting the Constitution and dwelling upon the legal aspects of the matter. I do not believe that it was ever the intention of the Constitution to over-ride the people, but it is argued in this Chamber to-day that we should over-ride the people. If there is anything which we have it in our power to do, it is to refer the matter back to the people of South Australia. I should have liked to hear the arguments of honorablesenators opposite if the boot had been on the other foot. They would have been the strongest opponents of the course which they are now adopting. They would have said, “ Trust the people,” but they are not prepared now to. trust the people, because they believe that they would meet with defeat. I have nothing to say against the gentleman who now occupies the seat. He has my good-will, but I said when the question first cropped up that, no matter what State was affected by a case of the kind, I should always be one to vote to refer the case back to the people if we possibly could. I believe that the Senate can do so, and therefore all the arguments that have been advanced from’ the other side are only intended to prevent the case going before the people. Honorable senators opposite will trust the people so long as they think that they have a majority of the people behind them, but not a moment longer. No matter whether it affects a member on this side or on the other side of the Chamber, we should always trust the people. I am satisfied that the spirit of the Constitution, in spite of legal technicalities, is that the people should elect the members of the Senate.
– What was section 15 put in for?
– I take the intention of section 15 to be this : There might be five vacancies in any one State within the period of three years, through death or other causes, and it would be impossible to hold elections for the Senate every six months. It would lead to a vast amount of expense. It was contemplated that section 15 would apply tosuch cases. It has been stated thatMr. Vardon took his seat in this Chamber. I admit that he did, but that did not make him a senatorif he took his seat here under a misapprehension, and if the returning officer, as Mr. Justice Barton has decided, illegally declared him elected. I wonder at honorable senators opposite disputing the judgment of a Justice of the High Court. We have set upthe High Court as the final arbiters of the law.
– Not in this case.
– They are the only persons entitled to interpret the Constitution. The High Court is the final court of appeal, and we cannot go beyond it.
– Then why is this case before the Senate?
– We are here to make the laws, and it is the duty of the High Court to interpret them.
– Then why is this case before the Senate?
– Because the case was never properly before the High Court.
– This case is before the Senate in accordance with section 47.
– I shall deal with section 47 later. I am dealing now with section 15. I am surprised that honorable senators opposite should be so fond of interjecting when I am speaking - perhaps I am touching them on the raw. I am saying what I conscientiously believe to be true. No matter what honorable senators opposite may say, the people of Australia are on this matter with honorable senators on this side.
– ‘How does the honorable senator know that?
– I have spoken to a vast number within the last month, and all have said that this matter should be settled by the people of South Australia.
– Who says that?
– Every person to whom I have spoken on the subject, and I have spoken to many supporters of the party to which Senator de Largie belongs.
– The honorable senator knows public opinion.
– I do not, but Senator de Largie does. The honorable senator takes his view from one side, whilst I speak to people holding all kinds of political opinions, and all to whom I have spoken, have admitted that the fairest and most reasonable way in which to deal with this matter would be to allow the people of South Australia to decide it.
– How can the honorable senator say-
– I ask honorable senators to cease their interjections. Senator Sayers evidently desires to speak without interruption, and I hope that honorable senators will extend to him the courtesy which has been extended to other senators and will allow him to speak without very much interruption. I also point out that it .is highly irregular for honorable senators, to join in conversations. The honorable senator speaking should address the Chair.
– I maintain that the intention of the framers of the Constitution was that the people should have the power to send senators to this Chamber. Whether we think that Mr. Vardon was here legally or not, and I admit that he thought he was himself, Mr. Justice Barton decided that he was here illegally.
– He never said that Mr. Vardon was illegally a senator.
– Any one possessed of the smallest grain of common-sense, would acknowledge that if Mr. Justice Barton said that the election was void, Mr. Vardon could not have been a senator legally elected to the Senate. “ Senator Millen. - He said that within the Acts there was no election at all. If there were no election, no one could havebeen elected. 0
– Where did he say that?
– It appears to me that Mr. Justice Barton made the statement to which I have referred word for word, although, perhaps, Senator de Largie does not understand it.
– I ask the honorable senator not to reflect upon other members of the Senate in that way. It is not conducive to order.
– I bow to your ruling, sir, but if an honorable senator makes a personal interjection when I am speaking, I think I am .within my rights in replying to it.
– If an honorable senator makes an interjection to which exception can be taken, the speaker should direct my attention to it.
– During the whole of my life, I have never called upon any one to do work for me which I thought I could do for myself. I think that 1 can deal with the honorable senator at any time and in any way.
– I point out to the honorable senator that it is the duty of the Chair to maintain order.
– Honorable senators opposite propose that in this case the people of South Australia should be ignored, and they contend that the Parliament of South Australia was right in electing a senator. There is no State Parliament constituted in the same way as the Federal Parliament. In two of the States Parliaments the Legislative Councils are nominee” Houses, and in the others are elected under a restricted franchise. I am surprised ‘that honorable senators opposite should be content to allow such bodies to elect a member of the Senate. I have understood that liberals and democrats the world over have protested against power being given to such Houses. In this case, certain honorable senators propose to give a vote opposed to what has been their life-long practice. They have always denounced nominee Legislative Chambers.
– And they will continue to do so.
– In this case they contend that it was right for the Parliament of South Australia to elect a member to this Senate, but they do not and canny contend that the Senate has not the power to remit the matter to the people of South Australia. I do not know what honorable senators on this side are going to do, because 1 have never consulted them.
– The honorable senator knows right enough.
– I ask through you, sir, that the honorable senator should withdraw that statement He has said that I know what I have said I do not know.
– I am sure that Senator de Largie will accept the honorable senator’s statement.
– I withdraw the statement that the honorable senator knows anything at all about the subject.
– The honorable senator has withdrawn the statement in a way.
– I do not know what Senator de Largie said in withdrawing his statement, but if he said anything to which the honorable senator takes exception he should call my attention to it.
– The honorable senator withdrew his statement, but as you, sir, must be aware, there are five or six ways of withdrawing a statement.
– Will the honorable senator say what he takes exception to in Senator de Largie’s withdrawal of the statement ?
– I take exception to the honorable senator’s manner in withdrawing the statement.
– I cannot very well interfere with the manner in which an honorable senator withdraws -a statement so long as he withdraws it in ordinary terms/ If in withdrawing a statement an honorable senator makes another statement which is out of order or to which exception can be taken, I can ask him to withdraw that. It is usual to accept the withdrawal of a statement unless it is accompanied by a further statement which is considered offensive. I am not aware that that is the case in the present instance.
– I said what I took exception to at .your request, sir. I- hope that at some future time when I may be asked to withdraw a statement I shall be allowed to withdraw it in exactly the same manner.
– The honorable senator might have to withdraw the manner.
– It will not be Senator Trenwith who will make me do so.
– I ask the honorable senator to go on with the matter under discussion. If he will confine his remarks to the motion, the amendment, or both, we shall get on with business.
– I shall do so as. well as I can in spite of interjections. I shall do my best.
– I do not ask the honorable senator to do more than his best.
– I have been doing my best so far. In Queensland and in New South Wales there are nominee Legislative Councils. In the other States the Legislative Councils are elected under a restricted franchise. In this case the Parliament of South Australia elected Senator O’Loghlin when it should have been left to the people of that State to select Senator O’Loghlin or any one else they might think fit as their senator, f have stated my objections to the amendment. If carried it will not settle the matter.. Senator O’Loghlin will have to go before the people at the next- Federal elections, and I maintain that we should send him to the people now. If he were sent back all cause of complaint would be removed. I have not the slightest personal objection to the honorable senator. I am doing what I believe to be my duty to the people who sent me here in insistingthat the people and not the Parliament of any State should have the right to elect senators. I am satisfied that if the position were reversed a number of honorable senators who are supporting the amendment would insist that the matter should be referred to the people. I have been told that in the event of an election- in South Australia the Labour Party would be sure of the return of their nominee, and I have asked* honorable senators why in the circumstances they do not let the matter go to the people, and secure the return of a senator to support their party in Parliament. That is the course which they should adopt and then no one would have a word to say against them. But I think that there must be some doubt in the minds of honorablesenators.
– What about the expense ?
– It is wonderful how anxious some honorable senators occasionally are to keep down expenses. At other -times they are quite willing to vote ,£8,000 or j£i 0,000 without an examination of the reasons. I think that it would be better to spend a little money in order to have this matter . decided in what I believe to be a democratic manner. We should thus allow the people to have a say in the settlement -of the difficulty and should avoid an outcry which might arise if we settled.it ourselves. This is not a matter that affects South Australia only. It affects the whole Commonwealth. What is a South Australian, casetoday might be a Queensland case tomorrow. I have done a good deal of electioneering in my time. The last elections were not a credit to those who had to do with their, management. I believe that the greatest scandals and informalities occurred in South Australia- But suppose, for the sake of argument, that cases arose in connexion with the whole of the senators elected at a general election, and that a Judge of the High Court held that they were all void. How would that pan out? Would honorable senators opposite argue that it would be right to allow the Parliaments of the States to elect the whole of the eighteen . senators ? Take the case of Western Australia. I honestly believe that there was no hope of any person except a Labour candidate being returned at the last Senate election. But if there had been some informality in the election, and the State Parliament had had to decide the matter, I doubt whether one Labour senator would have been returned. This case has been dealt with by the Disputed Returns and Qualifications Committee of the Senate. That Committee has reported.’ Its report was unanimously adopted, although it is true that two members of the Committee - Senator de Largie and Senator Turley - have added an addendum. I do not object to that. But surely the Senate should support its Committee unless there is a good reason for doing the contrary. I presume that the Government approved of the composition of the Committee when it was appointed or some objection would have been made, to it. Had I been a member of the Committee I should have done my best to deal with the business brought before it, and if the Government had taken such action towards it as has been taken on the present occasion, mv resignation would have been in the hands of ±he President” within a few hours. If we appoint Committees, we ought to listen to their arguments. Personally I shall vote for the adoption of the report, but I am also prepared to support the addendum of Senator Turley and Senator de Largie. If the report as a whole is not approved of, I agree that the matter should be referred to the High Court, which has been established for the purpose of interpreting the law. I do not profess to understand the technicalities of the law. Very few laymen do understand them. Indeed, I have seen three Judge’s sitting to decide a case when two expressed an opinion on the one side and one on the other. If we cannot agree upon any other course, let us submit the matter to the High Court.
– How can we send it to the Court?
– I believe that the Senate can.
– I do not think that we can.
– Then the whole thing is a farce. What is the good of the Committee bringing up a report with an addendum which, judging from the interjections, must have been a premeditated affair, unless it is possible for us to send the matter before the Court?-
– I rise to order. Senator Sayers has said that if the case cannot be sent by the ‘Senate to the High Court it shows that the addendum to the report was a.” premeditated affair.” Is not that a reflection upon the honorable senators who signed the addendum?.
– I have pointed out before that it is not in order for an honorable senator to cast any reflection upon the members of the Committee; and if any member of the Committee regards what has been said as a reflection upon his integrity, I shall ask Senator Sayers to withdraw it. I must, however, admit that I did not take the honorable senator’s observation in that sense. ‘
– I had not the slightest intention of reflecting upon any member of the Committee. All that’ I say is that if we have no power to send the matter to the High Court, I do not see the use of the suggestion made in the addendum.. My principal desire is that justice shall be done to the people of South Australia. If the addendum is of no value, I should like. to hear a statement to that effect based on authority. But I presume that, the minority of the Committee having made such a suggestion, we have power to carry it out. In the event of the Senate deciding to adopt the report of the Committee, I believe that Senator O’Loghlin would be able to take the matter to the High Court, whose decision would be final. If the High Court said that a wrong course was taken by the Senate in relegating the matter to the people of South Australia, we should at any rate have a judicial decision as to what the true position is. That is the way in which I should like to see it go; but perhaps it is not likely that it will go in that way. If it is true, as honorable senators interject, that we have no power to refer the matter to the High Court, there is another way in which that can be done; and that is by adopting the report of the Committee, and leaving Senator O’Loghlin to appeal to the High Court to say whether his view is right or wrong.
– But he could not appeal to the High Court.
– I do not profess to have the legal knowledge which the honorable senator seems to have.
– That is quite evident.
– Yes; and I believe that it has been equally evident in the case of some preceding speakers, but, of course, every man imagines that he is an authority. Despite the interjection from the other side, I believe that that course is still open. I consider that every citizen should have the right to appeal to the highest Court in the Commonwealth. Suppose that we did carry the motion, and thereby committed an illegal act, surely Senator O’Loghlin must have a remedy. It is a poor business if it is a farce when it is done in one way, and if the person interested has no chance of appealing against the decision, of the Senate when it is done in another way. What conclusion will the electors draw from the remarks of honorable senators on the other side? They will think that we have laws, and that they can be interpreted in only one way, and that is the way which the Government, with a_ majority, may prefer. If that is the position of affairs, I hope that it will be remedied very soon. I support the motion.
.- Being a member of the Committee, my views are embodied in the report, but I de: sire to refer to the extraordinary position taken up by Senator Best. A delicate question was referred to the Committee for practically a judicial determination.- Prior to that reference, the Attorney-General gave a written opinion which, as every one knows, was adverse to the view taken by the Committee. The Vice-President of the Executive Council seems to think that it is his duty to back up the opinion of his learned colleague. If that view is correct, Senator Sayers was not far wrong in pro-claiming the whole of these proceedings to be an absolute farce. Senator Best ought to have borne in mind that he was dealing with the report of a Committee which had unanimously found that Senator O’Loghlin did not legally hold the position of a senator, and had no right to’ sit here or act in that capacity. Instead of acknowledging that fact, Senator Best went out of his way to declare that in its report the Committee was not unanimous. It was unanimous’ on the important point as to whether or not Senator O’Loghlin holds legally the seat of a senator. Having got off the track at the commencement of his speech, Senator Best then tried to adduce some authorities to show that the report was wrong, but I am not aware that he successfully combated a single sentence or argument in the report. If, on such occasions, it is the duty of the leader of the Senate to back up the opinion of a legal colleague on a point, and the Government have a majority at their back, what is the use of our going through the farce of appointing a Committee to inquire and report to the Senate? What is the use of our pretending that we are engaged upon a delicate matter requiring judicial consideration ; that it is surrounded with no party feeling, and that the personal element must be excluded if the - Government, with a majority at their command, are to say!, “No. Our Attorney-General advises us in a certain way, and we. acting upon his advice, obtained the election of a senator who supports us. We intend to keep that senator in the Senate if we can.” It is a great pity that the matter was ever referred to the Committee, but as it was referred to us, we had to do our duty, and to report in accordance with our convictions. Whatever honorable senators mav think, or however they may like to twist their conscience, I am very pleased to say that, in its finding, the Committee was unanimous. I have nothing to do with the addendum to the report. I understand that it will be dealt with by Senator Turley if he moves the amendment foreshadowed by Senator de Largie. .
– According to Senator de Largie the Committee did not seem to be unanimous.
– My honorable friend has taken more interest in this matter than in almost any other matter which has arisen. He has been buzzing about between Senator de Largie and Senator Turley ever since the debate was started. He seems to be interjecting on every possible occasion, but I will not do him the injustice to suppose that he cannot read English. As I interjected the other day, Senator de Largie, when he tried to show that he was not a party to the report, hardly did justice to himself. Senator Pearce has copied that bad example, and would have us believe that he cannot read English. The report was gone through paragraph by paragraph on two or three different occasions. Every paragraph was discussed, and when we came to consider the conclusion of the report, itwas read and agreed to, as the Minutes of Proceedings show, the entry being “ Paragraph 6 was read and agreed to.” If my honorable friend has read the Minutes of Proceedings I cannot understand how he has fallen into the same error as the Minister, and can imagine for a moment that the Committee in its report is not unanimous. After sitting in the room and discussing the matter for an hour or two on different occasions, not a member of the Committee could pick a hole in the report or show where one argument it contained was wrong. The document was drawn so that the man in the street could read and understand it. It was drawn from a layman’s point of view, having regard also to the constitutional points with which I admit it deals. But neither Senator de Largie nor Senator Turley could point out where it was wrong. They both agreed to the draft with the rider, which says that in order to settle the matter definitely and for all time, it ought to be referred to the High Court ; but so far as this petition was concerned they concurred in the report. I am aware that honorable senators can change their opinion if they like. Some men can change their convictions when they change their coats. I am not going to follow the honorable senator, who sometimes is very specious, into any other arguments. I am simply dealing with a fact which I hope I shall not hear denied.
– If if was a unanimous report, and if those two senators were satisfied with the opinions expressed therein; why did they make the addendum that the matter should be referred to the High Court ?
– Because, as the addendum says, it would not finally settle the matter. Suppose that at an election hereafter we have a bungle and the election of one senator is declared void, and the Government of the day have a thumping big majority. Does the honorable senator imagine that if it suited their convenience they would feel bound by the decision in this case? My honorable friend is not so very innocent as he suggests. His interjection was wanting, I think, in sincerity.
– No. If there had not been a doubt about the point, there would have been a unanimous report and no occasion for an addendum.
– Does not my honorable friend know that on every constitutional question there may be two sides ?
– It is a constitutional question, then?
– The Committee thought that in this case there were not two sides, but Senators Turley andde Largie knew that they would have to deal with an elastic conscience like that of my honorable friend, so they thought that it would be better to go to the High Court. Now, let me deal with the cases quoted by the Vice-President of the Executive Council. I ask honorable senators to dismiss from their minds all those technical authorities about a deed being void and a deed being voidable, because they do not bear on the point at issue. Let me deal with the case which Senator Bestquoted to show that a mayor may hold an office de facto, and that holding the office de facto, as he says Mr. Vardon did, when the election is declared void and he can not sit any longer there is a casual vacancy. One case whichmy honorable friend quoted was that of The Queen v. The Mayor, Aldermen, and Burgesses of Chester. In his judgment, Lord Coleridge said -
A mandamus will only go upon the supposition that there is nobody holding the office in question, and it is an inflexible rule of corporation law that where an officer has been de facto elected, and has accepted office, and acted, this constitutes a case of plenarty unless the election be merely colourable.
But Mr. Justice Wightman said -
For the purpose of the present case it may be assumed that the office is not full de jure, but onlyfull de facto.
That is the case here. Mr. Vardon was a senator, as a matter of fact, but not as a matter of law, because the election was declared void. Do honorable senators. think for a moment that because a man is a senator, as a matter of fact, that carries with it the same responsibility, weight, and consequence as if he was a senator, as a matter of law? As one of the counsel said in that case -
The election at a wrong time is the same in effect as where there is an ineligible candidate. The person elected may act until ousted.
I undertake to say that that sentence, although uttered by a counsel, is right and correct. Before Senator Best can possibly bring this case within section 15 of the Constitution, and declare it to be a casual vacancy, he has to prove that Mr. Vardon was a senator, not only de facto, butalso de jure. That, however, he cannot do. How can a man possibly be a senator by right and by law when his election has been declared invalid? I am astonished at honorable senators pretending that they are confused over a simple matter of this kind. When a writ is issued, and an election is held, the writ is a return, and the return being good the senator takes his seat. But when a petition is filed within the period of forty days allowed by law every one knows that his office is challenged. He still acts and sits as a senator de facto, but under the judgment of Mr. Justice Wightman he is not a senator according to law until the petition has been decided. Everybody knows that he has no title to the office until the petition has been adjudicated upon. When in this case the petition was adjudicated upon, the whole election was declared void. If the election was declared void, how could there be a vacancy ?
– Is there any difference between the acts of a person holding an office dc facto and holding it de jure?
– No. If the returning officer declares that a certain person hasbeen duly elected,that person can vote, draw his salary, and act as a senator, but, when a petition is lodged against him, he is not a senator as a. matter of law until the petition has been decided in his favour. This matter was fought out before the Court of Disputed Returns, from which there is no appeal, and Mr. Justice Barton declared that there never was an election. Therefore, the return went, and the senator’s seat went with it. How in that case could there be a casual vacancy and an election by the State Parliament to fill the seat for the remainder of the term of six years?
– Mr. Vardon was a senator, then?
– He was a senator as a matter of fact. We could not carry on our business unless that was allowed. Supposing the whole of the Senate elections were challenged in a State, those who had been declared elected would all sit here in the same way and vote while the petitions were being heard. They would help to carry on the business of the country and join in the work of legislation as de facto legislators, but there could not be a vacancy under section 15 unless they were legally elected, and, therefore, de jure senators. The Vice-President of the Executive Council made what he seems to regard as a most wonderful point, that if theforty days had gone by withouta petition having been lodged, Senator O’Loghlin would be legally sitting here.
– He said that the election would not have been voided. It does not follow that it was void from the start.
– If those interested had refused to take advantage of the law and file a petition, SenatorO’Loghlin would havebeen sitting here legally, but that does not carry us one inch further. A petition was filed, and we know the result. Whenever a man is a senator de facto and de jure, the moment he goes out, no matter how he goes out, there is a casual vacancy. In that case, the Constitution has been carried out ; the people have elected ; the senator has taken his seat as a matter of fact and as a matter of law and right, and when there is a vacancy, it is a casual vacancy under section 15. But when the people have not elected, when there hasbeen no election, how. can if be said that a man was a senator de jure as well as de facto, simply because he sat here in accordance with our practice of believing him to be a senator until he is proved to be the contrary? We believe him to be a senator on the return of the writ, and allow him to act with us, so that his State may not be disfranchised. But after the matter has. been inquired into, and we know that the election was . no election at all, and that the return was a nullity, he can sit here by no authority whatever. Supposing a man succeeded in being returned as a senator by buying an election, spending fifty sovereigns in bribing fifty men. That has often been done. There were frightful cases of bribery in the last general elections in England, and two or three men were unseated. Suppose in such a case a man took his seat. He would sit here, although he had got here corruptly - because he could hold the office as a matter of fact, although not as a matter of right and law - until the petition against him had been adjudicated upon. In such a case, would we find the VicePresident of the Executive Council pretending that, although that man bought his way in, and acted as a senator de facto, there was therefore on his being unseated a. casual vacancy, and that the whole election was to be taken out of the hands of the people, although the man only won by a few votes, and only because fifty of his votes had been corruptly obtained ? Would the Vice-President of the Executive Council tell the people that under the Constitution they had no right to make another choice? The idea is monstrous. The people’s right cannot be taken away under the Constitution. If our report were adopted, everything would go on smoothly ; and the people would get their right in having to exercise their franchise over again. On the other hand, if a man elected by them were to die or resign his seat, there would be a casual vacancy, and then the South Australian Parliament would have jurisdiction. The Vice-President of the Executive Council has never attempted to answer Senator Symon’s forcible argument as to what would be done if all three of the senators from South Australia had been told that their election was void, and that none of them could sit. Would the people then, as Senator Symon asked, be absolutely deprived of their franchise? If, as Senator Millen interjected, the whole of the senators of the six States, through some terrible informality, had not been legally elected, would every State Parliament claim that these were casual vacancies? Senator Henderson talked about the right of the people, but the people would rise up and drop him into the muddy Yarra if he attempted to say that their franchise should be taken away from them. Those arguments cannot be answered. Let me tell honorable senators how the matter has presented itself to my mind. I. read in the newspapers time and again that there would have to be a new election. The articles seemed to carry conviction .to my mind, but then I found’ that the Attorney-General had given, an opinion, in which he said -
Before the decision of the Court, Mr. Vardon was, de jure as well as de facto, a senator. The subsequent avoidance of his election did, in my opinion, cause his place in the Senate to become vacant within the meaning of section 15 of the Constitution.
That is a most absolutely contradictory statement - a’ statement of fact which is quite incorrect. I cannot understand how a clever and able lawyer like Mr. Groom could ever have made such a mistake as to say that Mr. Vardon was a senator as a matter of right and law as well as of fact. Will any honorable senator, even the VicePresident of the Executive Council, say that Mr. Vardon was a senator de jure? How could he be?
– As a matter of fact, his acts are valid as such.
– I have been pointing out the difference between a man who acts as a senator and is a senator de facto, and the man who acts because he has a right to act, being a senator de jure.
– He was a senator de facto, and, temporarily, de jure.
- Senator Trenwith is a splendid supporter of the Government. The whole case rests upon those words. Senator Trenwith with his logical mind has seen it, and, therefore, attempts to show that Mr. Vardon was a senator de facto; and, for the time being, de jure I He suggests that, although the election which brought Mr. Vardon here was void, although his return was an absolute nullity, although there was ,no election,, although the people tried to elect a senator and failed to do so, yet Mr. Vardon .was temporarily here as a matter of right !. That argument will not do. >,
– Would Mr. Vardon have been a senator de jure had the petition not been lodged against his return ?
– Of course he would, and Senator Best took great credit to himself for unearthing that truism. If a man had bribed himself into the Senate, and nobody took any notice of it; if he did not break the eleventh commandment - “Thou shalt not be found out” - he would be de facto and de jure a senator. If a’ petition had not been lodged within forty days against his return, nothing could have taken the seat from him. The moment that I knew the matter was to be referred to the Committee of Disputed Returns and’ Qualifications, I telegraphed to Adelaide and obtained by return, of post the opinion given bv Mr. Glynn, Mr. Dashwood, and Mr. Murray. They backed up Mr Groom. I thought the matter was most complicated, and considered that it had better go to the High Court. I was perfectly willing in the Committee at first that it should go to the High Court, and was a little disappointed that it did not go there. It was pointed out to me that I had better hear the petitioner open his case, and listen to the evidence. I did. I found that Mr. Groom’s opinion was founded upon a fallacy. I saw that a man in those circumstances could act as a senator de facto, and not be a senator as a matter of right.
– Is that the honorable senator’s idea of a -fallacy? The High Court does not think so.
– The- AttorneyGeneral’s opinion is based upon a fallacy. If the Attorney-General’s view - that Mr. Vardon, before the decision of the Court, was de jure as well as de facto a senator - is right, there is an end of the case, and Senator O’Loghlin has a perfect right to sit here. But it is not a fact, and so I say that Mr. Groom has based his opinion upon a fallacy. The Vice-President of the Executive Council, in order to gain his case justly, must prove that Mr. Vardon was a senator de jure. That he cannot prove. When I first read them, I believed that the opinions of those great lawyers must be right, and that the question ought to go to the High Court. But when I heard Mr. Piper’s argument, and got into my head the difference between a senator sitting here as a matter of fact while a petition was pending, and a senator sitting here as a matter of right and law, and when I read other decisions in which it is shown that the moment it is proved that a man’s election is void, all his rights as a senator go, I . saw that it was only twisting the Constitution to say that this was a casual vacancy under section 15. The interpretation which the Committee give would make everything run smoothly, but the interpretation given by the VicePresident of the Executive Council absolutely twists the Constitution and deprives the people of their right. If a senator is here as a matter of fact and as a matter of law, then if he dies or resigns there is a casual vacancy. Is not that reading the Constitution properly? There are sure to be scores of casual vacancies, -Because when old and bald-headed gentlemen like myself are elected for six years ft is more than probable that some of us will “ hop the twig” before our term expires, so causing casual vacancies within the meaning of the ‘
Constitution. But until a man is legally elected as a senator, it is useless to talk about his retirement causing a casual vacancy. I quoted a case in which counsel contended that a man could continue to sit and act as Mayor until he was ousted. The High Court’s decision is that there being no election in this case, there was no senator as a matter of right who could sit and vote, but that Mr. Vardon sat and acted until he was ousted bv the decision of the Court. Where, then, is the casual vacancy, and where do honorable senators get the “ term” referred to in section 15? That section provides that -
If the place of a senator becomes vacant before the expiration of his term of service.
His term of service is six years, and where is the term of service of a man who comes here and acts only until he is ousted? What would be the balance of his term of service? In such a case, how can there be any such thing as a vacancy ? The position which the Committee of Disputed Returns and Qualifications take up would lead to the smooth working of the Constitution.
– Is it not a fact that Mr. Vardon would have been a senator for six years had the petition not been lodged within the specified time?
-I have already said so. I have complimented my honorable friend opposite on the wonderful truism he unearthed for us. But it does not help us in the argument.
– It was a term of six years cut short by legal process.
- Mr. Vardon having been returned, apparently in legal form, was for the time being a representative of South Australia, and sat and voted in the Senate. But the judgment of the Court was that he had no right to sit here. The Court decided that he was not de jure a senator, and that there had been no election. In the face of that decision, how can honorable senators- contend that section 15 applies? As the Chairman of the Committee points out in his well-drawn report, the whole of the rights of a senator ceased the moment the judgment of the Court was given.
– Hear, hear. Mr. Vardon could exercise them no longer.
– I should have said that he was “no longer a senator from the beginning; but we cannot escape the fact that he had acted as a senator up to the’ time of the decision of the Court. But will the Vice-President of the Executive Council consider the case I have put of a man who bought himself into the Senate by bribery. I think it was Senator McGregor who suggested that the provision for dealing with casual vacancies was inserted in the Constitution in order to save expense. ‘ That is only half the truth. It was inserted to provide for the case of a casual vacancy caused by the death or retirement through ill health or for any other good reason, of a man who had been returned, and, as a matter of right and of law, had acted as a senator. It was pointed out that whilst a man who was elected as a senator might die in the first year of his term of office, another might die just before the close of his term of office, and a new election, at a cost of thousands of pounds, might be insisted upon even when it was known that a general election would have to take place very shortly afterwards. The question ot expense cannot arise if . the Constitution is . not complied with, and, until the people of South Australia have had an opportunity to elect their third senator, it will not have been complied with. They have not exercised their privilege under the Constitution, and there can be no possible vacancy except by the retirement of a man who has been a member of. the Senate de jure as well as de facto. How the Vice-President of the Executive Council, with his legal knowledge, can dispute that I do not know. except that in these matters we all have to play the part of party politicians, and my honorable friend is no exception to the rule. I find from their report that the Committee of Disputed Returns and Qualifications say -
In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court quoted to your Committee, “ Within the Acts there was no election at all.”
Yet Senator Trenwith contends that Mr. Vardon, as a matter of law, was temporarily a senator. The High Court, in their unanimous judgment in the mandamus proceedings, said-
The only relevant fact is that the attempted choice of one of the three senators who ought, under section 7, to . have been directly chosen by the people, was ineffectual.
Do honorable senators opposite contend that section 7 not having been complied with - the election having been void, and the people’s choice having been ineffectual - is now to be ignored, and the people’s rights taken away from them? Suppose it could be proved to demonstration that the terrible Tories to whom Senator Henderson has compared honorable senators on this side are in an undoubted majority in South Australia. It might be expected that the people of that State would elect a man holding certain views. We all know that there is a Labour Government in power in that State at the present time, and that, as a matter of fact, the Parliament of South Australia elected a man holding the views of the Labour Party. The High Court has said that the choice of the people was not exercised or was ineffectual, that the election was absolutely void, and yet* honorable senators opposite are asking the Senate to give a decision which hands over to the Labour Government of South Australia the right to appoint a senator holding certain views, when they know that if the people of South Australia were appealed to they would elect a man holding opposite views. Could anything be more dreadful? I read in the newspapers, as I suppose every one else did, that Mr. Justice Barton, took it for granted, and said that there would have to be another election held by the people.
– That is not in his judgment.
– Mr. Justice Barton used those words. I have been so informed by a gentleman who heard him, and yet they are left out in the revised copy of his judgment.
– He saw that he had made a mistake.
– He had had time to think over the matter.
– It is a very serious thing for the Vice-President of the Executive Council to say that Mr. Justice Barton saw that he had made a mistake, and then altered his judgment.
– It is done every day. The Judges constantly revise their- judgments.
- Mr. Justice Barton, knowing the Constitution better, I suppose, than any other man living, looked upon the question as so simple that he took it for granted that there must be another election, and he said so. But when he saw that the Attorney-General and the Government absolutely differed from him, like a sensible man he struck those words out of has judgment.
– I rise to a point of order. Senator Dobson has just said that when Mr. Justice Barton saw how his judgment would be regarded by the Government he revised it. I should like to know whether it is in order to reflect in that way upon a Judge?
– If Senator Dobson made that statement, he was certainly not in order, because no member of the Senate is in order in reflecting upon a Judge, except on a specific motion.
– I am sure I did not make the statement in the way Senator Lynch has put it. What I intended to say was that Mr. Justice Barton, in making remarks which he was not called upon to make expressed a Certain opinion as an obiter dictum, and when he found that the Attorney-General gave a contrary opinion, and the Government were going to fight the matter in the Senate, he struck out that part of his judgment which was not relevant to the point at issue. He probably considered that as he was not called upon to decide that point he had better not do so; but, speaking unguardedly, he said that the matter would have to go to the people.
– The AttorneyGeneral did not express his opinion until after the judgment had been given, so that it could not have affected the matter.
– I am talking of the revised judgment which was supplied in printed form only the other day to the Committee of Disputed Returns and Qualifications long after the Attorney-General’s opinion had been published.
– The honorable senator has quoted the High Court very freely. I ask him to remember that the High Court said that the real issue in this case was important and difficult, and they did not decide it. What is his answer to that ?
– My answer is that Judges very often speak of points as being important and difficult, and that Mr. Justice Barton, although not called upon to decide the point, said that there would have to be another election.
– I am not referring to Mr. Justice Barton, but to the judgment of the High Court.
– My honorable friend says that the High Court considered the point important and difficult, and Mr. Justice Barton, who, I suppose, knows more about the Constitution, or quite as much, as does any other Judge of the High Court, said that there would have to be another election.
– After five days’ argument in the mandamus proceedings the High Court made the statement I have referred to.
– The High Court was not called upon to decide the matter.
– They said that they did not decide it.
– They were not called upon to do so. After all, their opinion cannot guide us. It has not very much weight. Mr. Justice Barton had no doubt about the matter; he would not have gone out of his way to speak of a new election unless he felt pretty sure that that would be the course followed. As I have said, the matter presents no difficulty to my mind. The course proposed by the Committee would not affect the right of a Parliament of a State to act where a casual vacancy arises, but it would prevent the taking away of their undoubted rights from the people.
– I judge from some remarks made by the honorable senator who has just resumed his seat, and from an interjection by Senator McColl yesterday, that there seems to be a feeling on the other side of the Chamber that, as I hold the position of Chairman of Committees, I should cut myself off entirely from the expression of opinion on any question that may come before the Senate as to which my views may be in conflict with those of honorable senators opposite.
– Certainly not.
– Otherwise, I cannot understand the remark of the honorable senator about my taking a keen interest in the question. It is my practice to take a keen interest in all questions that come before the Senate. Therefore, there is nothing unusual in that. There must have been some meaning in the honorable senator’s remark.
– Hear, hear. The honorable senator has misunderstood me.
– With regard to Senator McColl’ s observation, there is only one term to apply to it. It was a most insulting expression - viz., that I am a partisan Chairman. Now, I wish the Senate to understand this - that if the price of my holding the position of Chairman of Committees is that I am to give up my opinions or forbear the expression of them, I shall not hold that office very long. I think we have a right to claim that if, upon this question, we do conscientiously differ; it is not remarkable. Because when we find legal gentlemen of such standing as the Vice-President of the Executive Council and the leader of the Opposition differing, it is evidence that there is ample room for difference of opinion. Senator Savers has made a statement - which has also been made by others who are in favour of the adoption of the Committee’s report - to the effect that he believes that the Senate is not the right body to decide this question, but that he will accept the verdict of the Senate if it is the verdict he wants, whilst if it is not the verdict he wants he will vote to send the question to be determined by another tribunal.
– Honorable senators opposite have not told us how they will do that.
– They have not, and that may be. a difficult question to answer. It seems to me that that attitude may be described in the well-known phrase, “Heads I win, tails you lose.”
– Why would it necessarily be “ Tails you lose?”
– It means thisthat honorable senators opposite will accept the verdict of the Senate if it is in their favour, whilst if it is hot they will go to another tribunal where they think the verdict may be different, or, at any rate, where they think that there will be a chance of its being different. Honorable senators who take up that attitude assume that if they cannot win here they are likely to win elsewhere. They will take the chance of winning here, and if they lose they will take’ the chance of going elsewhere in the hope of winning there.
– Who took up that attitude ?
– Senator Savers said - I took down his words - “ I will accept theverdict of the Senate if I think it is a good verdict - if I think it is the verdict that it ought to be; but if not, I think the case should go to the High Court.”
– In view of the unanimous decision of the seven members of the Committee, is not Senator Sayers justified in holding that opinion?
– If the decision of the Committee was unanimous, I cannot understand Senator Turley and Senator de Largie entering their dissent. Because, though their opinion is treated as an addendum, I find no provision in our Standing Orders for making an addendum to a report. The only provision made for the expression of the opinion of a minority on a Committee is that they may put in a dissentient report, I take it that that addendum means, if it means anything, “ We do not feel that we arc in a position to challenge what has been laid down by the majority.” They gave as a reason for that attitude that the question is one which is surrounded by legal difficulties, and that that leads them to recommend that it should be referred to the High Court.
– Very sound reasoning.
– In the face of that dissent, how can it be said that the opinion of the majority of the Committee was not challenged ?
– Did the two senators who signed the addendum agree with the report when it was passed by the Committee clause by clause?
– I take it that the very fact that they put in that addendum shows that they were not satisfied with the verdict of the majority, though they did not feel competent to express an opinion upon it.
– If they agreed to the report, why do they wish to send the matter to another tribunal ?
– Does the honorable senator think thatan addendum like that means that the two senators who signed it were not in accord with the report of the Committee ?
– If I were Chairman of a Committee that brought up a report, and an addendum like that was put in, I should take it that those who signed the addendum did not feel justified in adopting my conclusions, though they did not dispute them.
– But the two senators voted for each clause of the report.
– I do not think they challenged a division on any clause. But that merely means that they did not feel justified in dissenting from the report.
– The Committee were unanimous.
– There was no division, because no one called for a division.
– I asked the question twice last night, how far the addendum might be taken as an expression of dissent from the report.
– I am not responsible for giving an answer to the honorable senator’s question. Senator de Largie has outlined his own position, and. Senator Turley will be able to do the same. Senator Dobson,following the very safe procedure laid down by Senator Symon, appealed to the Senate not to treat this matter as one of legal technicalities. I must say that it makes me suspicious when two lawyers ask me to approach a question in which matters of law are certainly involved by putting aside all considerations as to the law. A lawyer will usually take to the law as eagerly as a duck takesto water. There must be some strong deterring influence when they both put up a danger signal, and ask us not to consider this matter as one of law at all, but solely as a question of politics.
– And especially as a question of democracy.
– As a question of democracy above all things. That was the appeal that was made to us by Senator Dobson and Senator Symon.
– They did it so vigorously because they have never clone it before.
– They were breaking new ground. This attitude certainly aroused my curiosity, and made me, for the time, a law student. I thought, “ Now, if those honorable senators are so anxious that we shall not look into the law on this question, and that we shall adopt a purely political course, one may, by looking into the law, ascertain what is really the right course to adopt.” Consequently I have devoted all the time I have had at my disposal to a study of the question from the legal point of view, so far as a layman can do so. I shall not, of course, attempt to give any cheap legal opinion on the question. Senator Dobson, especially, appealed to us to put aside the legal aspect altogether, and deal with the political aspect only. Unfortunately, I believe that it is a legal question which we have to decide. Moreover, this is a legal tribunal. Wemust not lose sight of the fact that the Senate is., in this instance, a Court. It may be a very faulty kind of Court - it may be a Court afflicted by the evil of party bias - but nevertheless it is a Court.
– Not a final Court.
– It is in this case even a, final Court. So far as I can see, it is the only Court at the present time that can deal with the matter before us. Therefore, we must not lose sight of the fact that the Senate, in dealing with this question, ceases to be a mere political body, and becomes a Court constituted as such.
– It does not cease to be a political body.
– It does not cease to be a political bodyde facto, but it does cease to be so de jure; because de jure by the Constitution we are constituted a Court, though de facto we remain a political body, and being so, we are of course vitiated to some extent by our political bias.
– If we are a Court, does the honorable senator think it was right for the Vice-President of the Executive Council to urge upon us what the Government thinks in this matter? Was not that a party appeal ?
SenatorPEARCE. - That is a question to which the Vice-President of the Executive Council himself can reply.
– No; it is a question to which he cannot reply !
– It is a question as to which our political training comes in, and drives us off from the strict legal path. This is one of the evils arising from the fact that a loop-hole has been left in our electoral machinery. We thought that we had made the fence strong enough, and had for ever cut ourselves off from the legal responsibilities attaching to decisions in cases of disputes over elections. We thought that we had acted under the terms of the Constitution, which lays down a certain machinery, until we otherwise provide. We thought that in otherwise providing we had made arrangements for all cases of the kind going before the High Court. But we find that we have not done so. There is a gap in the fence, and the fact which stares us in the face is that there is an election case before us. We have to deal with it, and therefore we cannot, as Senator Dobson and Senator Symon have asked us to do, put aside the legal technicalities, nor can we shut our eyes to the legal position.
– We can send the matter to the High Court.
– We cannot even do that.
– Parliament can.
– That is a point with which I shall deal later on. We cannot take any cognizance of the political aspect of the question - that is to say, as to the effect upon the principle of whether elections of this kind should be determined by the. people or by a State Parliament. That is purely’ a political question. It is entirely a question, not as to the Constitution, but as to the advisableness or otherwise,, of a particular mode of election. This Senate is not now a Court for the purpose of altering the Constitution or considering the advisableness of altering it, but for the purpose of determining, under the Constitution as it stands, whether Senator O’Loghlin is rightly here as a representative of South Australia.
– That is not the sole question.
– That is the question raised by the petition. Senator Dobson said that Mr. Vardon never was a senator as a matter of law, although he was one as a matter of fact. Now. I take it, that a senator cannot take his seat here by virtue of the provisions of the Constitution unless he is elected. He is elected by virtue of the Constitution and under the operation of electoral laws passed under the Constitution. The writ is returned in accordance with the law. Parliament is assembled by virtue of the Constitution ; the Clerk reads the GovernorGeneral’s proclamation; the return of the writs is reported ; members present themselves, are sworn, and take their seats; the business of the country is declared by the Governor-General, and the session is opened. All that is done under the Constitution, or under the electoral law. But for forty days from the date of the election the seat of every, senator who has been recently . elected is voidable. Every one of them may be unseated on various charges which may be laid under the Electoral Act and the Constitution. So far as that point is concerned, eighteen senators, and perhaps more if there have been any extraordinary vacancies, are for forty days senators in fact and in law, although the seat of every one of them is voidable under the law.
– Although the election is declared absolutely illegal.
– Although the election of a senator is declared absolutely void.
– It is very easy to state that proposition.
– I intend to enlarge upon it later on. The honorable .senator said that in this matter I was having a wrestle with my .conscience, and when a further interjection was made, he said that
I had a wrestle with my party. If he reflects a little, he will see that it was a very unworthy interjection to make.
– 1 think it is most inaccurate, because there has not been any wrestle with the party.
– I do not think that any senator on the other side would like me to suggest that Senator Dobson came to a certain conclusion because Senator Symon, the Chairman of the Committee, was the leader of his party. I do not think that Senator Dobson would like me to make that remark.
– I did not mean my interjection to be taken in that way. I withdraw the remark if the honorable senator thinks that it is objectionable.
Senator - PEARCE.- 1 think that it should not have been made, because it impugns my honesty and freedom. In this case, I am just as free as is Senator Dobson, or any one else, to take any attitude I like. While there is remarkable unanimity on the other side, if we may judge from the speeches, at any rate there is a little diversity1 on this side. ‘
– With very good reasons, too.
– There may be very good reasons, or no reasons. At any rate, there is some diversity of opinion on this side. Let us now consider what is meant by holding a seat as a matter of law. It would be well, I think, first to make up our mind as to what is the meaning of the term used by the High Court, and further, as to whether any other term might have been used which would have had a more restricted meaning if it had wished to convey a more restricted meaning. According to Chambers’1 Dictionary, if we leave out definitions which are not pertinent, “void” means -
Having no binding, force; wanting; (o render of no effect; to nullify.
There is another word which has been used by the High Court in like cases. If honorable senators will look up the cases in which seats in the other House have been challenged, they will find that very often, the High Court has used the words “ valid,” and “invalid.” “ Valid “ has a far more restricted meaning. According to Chambers’ Dictionary, it means -
Founded in truth; sound; conclusive; executed with proper formalities; legal; rightful.
If a person with a full knowledge of the significance of those words wanted to convey the more restricted meaning, which word would he use? Would he not. especially in a matter of law, say that the election was invalid if he wanted to destroy the virtue of the election entirely? If he wanted to declare that the legal formalities had not been complied with, would he not use the word which means ‘ ‘ executed with proper formalities ; legal ; rightful “ ?
– What more does the honorable senator want than the definition “ to render of no effect “ ?
– I have shown that, according to the definitions, one word has a far more restricted meaning than has the other.
– How can a man be a senator at law when his seat rests upon something which has no effect and is invalid?
– I have not by any means concluded my remarks on that aspect of the question. If we turn to the Commonwealth Law Reports we find that in the case of Chanter v. Blackwood, Chief Justice Griffith dealt with the question of the validity of an election. At page 49 he says - ‘
The word “ validity “ in that section must mean validity according to the law of the Commonwealth.
Mr. Justice O’Connor said
Section 192 seems to me to hand over to the Court the whole power of Parliament in relation to the validity of elections, because of the words at the end, “ and not otherwise.”
In that case the Judges were dealing with an application to declare the Riverina elec-, tion invalid so that a new election should be held. The whole of the discussion ranged round not the word “ void,” but the word “ valid,” and the Judges used the words “ valid/’ “ invalid,” and “ invalidate “ as regards the election.
– Which word is used in the head note?
– It reads-
Held, therefore, that votes given by such persons by writing the name of a candidate on a blank ballot-paper are invalid.
I have quoted that case to show that the High Court has recognised that there is a distinction between the two words, but thatone has a more restricted meaning than the other. Next I looked up Stroud’s Judicial Dictionary to see what legal mean,ings are put on these terms. I take it that if we find a case where the Court’ says that a thing is void, and it means not only that it is void’ at that time, but that it is void right back so long as the circumstancesgoverning the case existed, we get a paral lel case. Of course a thing is either voir! or riot void, so that the word “ absolutely “ in the phrase !’ absolutely’ void “ meanslittle or nothing.
– That word is used in a section of the Electoral Act.
– Even if it is used in the Electoral Act it does not give to the word “ void “ any more force. It is welt known that in ‘drafting a motion we often adopt the exact terms we find in the Act with which we happen to be dealing.
– The High Court said that we need not take notice of the formin which the order was made.
– Yes. On page 2197 of Stroud’s Judicial Dictionary we find a case which is on all fours with the one under consideration, although it is not ait election case.
Though an Infant’s Contract for money lent, or for goods (other than necessaries), or on account stated, is “absolutely void” by s. 1, 37, and 38 V, c. 62, yet that does not enable him torecover back money paid by him in respect of ordinary goods which he has consumed or used (Valentini v. Canali, eg. L.T.6.B. 74: 24. Q.B.D. 166).
I do not know the meaning of the mysticletters at the conclusion, but I think that the case quoted is very simple. .An infant has expended money under a contract; he has been proceeded against for the recovery of the money ; the contract, because’ he is an infant,.’ is declared absolutely void, but that does not enable him to recover money paid by him. The money he has paid is lost, and cannot be recovered by legal process, notwithstanding the fact that the Court has said that the contract under which it was paid was absolutely void. Must not it be because the law recognises that there was a legal right to the money, but that he had not a legal right to recover? Surely it means that if it means anything. Otherwise the law isrecognising an illegality. It is allowing an illegal’ detention of money. Here is another case which bears on this point, as reported in Q.B.D., Vol. 2, 1893: -
The expression “.void” in section 47 of the- Bankruptcy Act r8S3- which enacts that voluntary settlements of property shall, if the settlor- becomes bankrupt within two years after the date of the settlement, be void against the trustee in the bankruptcy - must be construed as meaning “voidable” and not absolutely void, and a bond fide purchaser for value from the donee under such a voluntary settlement, has a good title against the trustee in bankruptcy even- if he purchased with notice that the ‘doneeclaimed under a voluntary settlement. ‘
Dealing with that case, Mr. Justice Vaughan Williams said, as reported on page 384-
On the whole, I have come to the conclusion that the word “void” in section- 47 of the Bankruptcy Act 1883 means “ voidable,” and that consequently any one who claims, under a settlement affected by this section, as a purchaser for valuable consideration without notice, has a good title as against the trustee, in bankruptcy. It is quite plain that the word “void” may mean “voidable,” and there are several reasons why it should receive that construction in this Act.
Those, quotations are enough to show that honorable senators opposite are giving to the term “ void “ the most restricted meaning possible, and one. which it does not possess in courts of law when ordinary cases are being dealt with. . It is important to remember, before dealing with the report of the Committee - I invite Senator Dobson’s attention to this - that notwithstanding electoral blunders and complications, from the political point of view taken up by Senator Dobson, the position now is exactly the same as1 if the election had been properly conducted in all respects.
– What does the honorable senator mean by “now”?
– I mean that, so far as the party aspect is concerned, the recount showed that had Mr. Crosby not died, and had the other complications not come into the case, a member of the Labour Party would have been sitting here as a senator for South Australia, just as is the case now. Mr. Crosby had a majority of votes, and was, therefore, the choice of the people. But certain ballot-papers not being initialed prevented effect being given to the intention of the electors. If there had been a right count at the outset, and if there had been no errors, Mr. Crosby would have been elected, as he was afterwards declared bv Mr-. Justice Barton to have been the rightful man- for the position. He died. Had those complications not arisen, and had he been declared elected, and then died, there would have been a casual vacancy without any dispute by honorable senators opposite.
– Supposing that a petition had been lodged before death took place?
– That would have been a different set of circumstances. If Mr. Crosby had been challenged, the case would have gone before the Court, and, unless some other informality had taken place that we have not heard of, so far as our present knowledge goes, and according to Mr. Justice Barton’s statement that Mr. Crosby had undoubtedly a majority of four on the recount, he could not have been ;UCcessfully petitioned against. If he had taken his seat and his death had occurred after that event, the South Australian Parliament would have been called upon to elect a successor. I come now to the report of the Committee. I do not regard it as a document which must not be breathed upon. We have the fullest right to inquire into it to see if it can stand the test of criticism. I notice, in reading the minutes’ of the proceedings of the Committee, that it is to all intents and purposes the report as submitted to the Committee by Senator Symon. So far as I can see, the minutes indicate that there has been little or no alteration, so that the report has emanated practically from the honorable senator who has moved its adoption in this Chamber, and we can- see the connexion between the report itself and the speech with which the honorable senator introduced it. The first thing that, struck me on reading it was the following statement in the third paragraph -
In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court, quoted to your Committee, “ Within the Acts there was no election at all.”
That struck me as being remarkable, and I at once turned up the report of the mandamus proceedings circulated with the report. From beginning to end I can find no such words. What is the meaning of that ? The natural impression created upon my mind on reading those words was that the High Court had delivered judgment on this question. That struck me as so important that I read through Mr. Justice Barton’s judgment in the case before the Court of Disputed Returns from beginning to end, and also the judgment of the High Court in the mandamus proceedings in Sydney, from beginning to end, and in neither of them does that statement appear. Can Senator Dobson, or any other member of the Committee, tell me where the statement does occur?
– In the course of the arguments.
– Does not the honorable senator think it singular to put into the report of the Committee a statement made in the course of the arguments which does not appear in the official report of the proceedings of the Court?
– The official report of the proceedings is cut down. That statement was quoted to us by Mr. Piper; who was there, and heard the Judge make it. The Judge made the statement to him.
SenatorPEARCE. - Would it not have been fair for the Committee to have also said that, although those words were quoted to them, they did not appear in the report of the proceedings of the High Court? Undoubtedly, the impression created by those words is that they convey the fiat of the High Court.
– Only as the judgment of Mr. Justice Barton.
- Mr. Justice Barton spoke as a Judge of the High Court, and those words do not appear in the report of his judgment.
– The Judge used those words.
– If so, why did not the honorable senator state in the report of the Committee in what connexion they were used ?
– They are not included in the report of the proceedings of the Court, because the judgment is the important part, and the counsel who are employed to make the official report give the judgment and cut down the report of the proceedings.
– Would not Senator Dobson, as a reasonable man, think that what was intended tobe conveyed was that that was the judgment of Mr. Justice Barton ?
– One would, perhaps, think that.
– It was not Mr. Justice Barton’s judgment, and does not appear as his opinion in the report of his judgment.
– It was his opinion.
– It is made to appear that that was his judgment in the mandamus case.
– Are they his words?
– So far as his words are reported in the paper circulated, they are not his words.
– Does the honorable senator deny that Mr. Justice Barton used them ?
– I do not. But we are not concerned with words that may have been bandied about between solicitor and Justice. We are concerned with the question of what the judgment was in the mandamus case.
– In the course of the proceedings Mr. Justice Barton expressed the opinion which was quoted to us, and which we have quoted.
– And which does not appear in the official report of the proceedings of the Court. Therefore, the Committee ought to have told us that they quoted those words on the “ say-so “ of some solicitor, who attributed them to one of the Judges.
– Because the Judge used them.
– The question is so important that the Committee thought it necessary to attach Mr. Justice Barton’s judgment to their report. Surely, therefore, they should have given us the conditions in which the statement was made instead of quoting it without any explanation, and so creating the impression that it was the judgment of Mr. Justice Barton in the mandamus case. Let us look at the next line -
The High Court also in their unanimous judgment upon the mandamus application. . . .
– The honorable senator is hypercritical. The Committee state that Mr. justice Barton used those words “ during certain mandamus proceedings before the High Court.”
– The Committee say -
In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court, quoted to your Committee, “ within the Acts there was no election at all.” The High Court also in their unanimous judgment upon the mandamus application -
– The Committee’s report draws the very distinction which the honorable senator says is not there.
– I cannot see the distinction.
– Supposing Mr. Justice Barton put that statement by way of interrogatory ?
– It might have been simply an interpolation by Mr. Justice Barton, who might have been prompting the solicitor, or saying to him “Then your contention is that within the Acts there was no election at all?” It might have been used in all sorts of senses. If it was a mere interchange between Justice and solicitor it ought never to have been put in the Committee’s report.
– Is it not in exact accordance with the judgment?
– I do not think so. At any rate, it is not thejudgment, and the words do not appear in the report of the judgment. The Committee further say -
The High Court also in their unanimous judgment upon the mandamus application said, “ The only relevant fact is that the attempted choice of one of the three senators who ought, under section 7, to have been directly chosen by the people was ineffectual.”
The. Committee might have gone a little further in order to give us a clear sense of what the High Court actually said. This is what the High Court did say, including the part which the Committee quoted -
It is clear, however, that when a: vacancy occurs in the Senate it must be filled in the manner prescribed by the Constitution, and that the Parliament cannot by any statute make any valid provision to the contrary. It is equally clear that the Senate could not, by any exercise of its powers under section 47, affect the question of the proper mode of filling a vacancy, and that the powers of the Court of Disputed Returns are not more extensive.
– The whole point is as to the interpretation of the Constitution.
– They said further -
In the present case, as already stated, the decision of the Court was that the election was void as regarded one of the senators returned.
Why did not the Committee of Disputed Returns and Qualifications quote that from the judgment of the High Court? Here is a statement as to the decision of the Court, and yet the Committee say -
The High Court also in their unanimous judgment upon the mandamus application said, “ The only relevant fact is that the attempted choice of one of the three senators who ought under section 7 to have been directly chosen by the people was ineffectual.”
I say that we have the decision of the Court in the words I have previously quoted.
– Would the honorable senator mind reading them again ?
– These are the words -
In the present case, as already stated, the decision of the Court was that the election was void as regarded one of the senators returned.
– That is the whole case.
– It is a singular thing that if, as Senator Millen says, that is the whole case, the Committee did not think it worth while to include those words in their report.
– They have done so fifty times.
– In very different circumstances.
– Does not Mr. Justice Barton refer to Mr. Vardon as a senator” there?
– Yes, he refers to him, not as one of the candidates who were declared to have been returned, but as “one of the senators returned.” The Judges of the High Court must be very careless in their use of terms if in considered judgments they designate as a “senator” a man who, according to Senators Symon and Dobson, never was a senator. The High Court, referring to the judgment of the Court of Disputed Returns, goes on to say -
Its validity as regards the other two was not impeached. The Court did not therefore in fact declare the election, i.e., the election held under the writ commanding the election of three senators, to be wholly void. We think the form of the order is quite immaterial.
Yet we have honorable senators opposite depending the whole of their case on the form of the order, because Mr. Justice Barton used the phrase “ absolutely void.” Honorable senators hang the whole of their case on what the High Court regarded ., as quite immaterial.
– No, on the substance and not on the form of the order.
– The substance of the order was to displace one of the senators who had held a seat in the Senate. The Court went on to say, and this is the only part of their judgment that the Committee quoted -
The only relevant fact is that the attempted choice of one of the three senators who ought under section 7 to have been directly chosen by the people was ineffectual.
– There all three are referred to as “senators.”
– That is so. That is the only quotation in which the Committee profess to give us the High Court judgment.
– That is the only part of the judgment that had any bearing on the matter.
– It is the only part that could be used to bolster up the view put forward from the other side. I come now to paragraph 4 of the report, in which the Committee say - “On the11th July, 1907, there being a vacancy, the Houses of Parliament of South Australia assuming it to be a vacancy within the meaning of section 15 of the Constitution - “
I am not sure that the Houses of Parliament of South Australia took any such restricted view. It is quite possible that they assumed it to be a vacancy within the meaning of section 1 5 and other sections of the Constitution. Section 21 gives the form in which vacancies are to be notified, and I assume that the Government of South Australia, which is the Executive of the Parliament of that State, received a notification in the terms of section 21 that a vacancy had occurred, and the South Australian Parliament, acting under sections 15 and 21, took the action they did. There is a very peculiar phrase used in the second section of paragraph 4 of the report, which reads - “ It appears from the correspondence set out by Mr. Vardon in the petition that he was nominated though under protest from himself to the State Parliament.”
I propose to read that alleged protest. It appears in the petition, and will be found on page 4 of the report in this form - “ That on the 10th day of July, 1907, your petitioner wrote to the Honorable Richard Butler, a member of the. House of Assembly in the Parliament of the said State, a letter, in the words and figures following, that is to say : -
Adelaide, 10th July, 1907.
Dear Mr. Butler,
In answer to your inquiry, my position in regard to the Senate election is this -
I am willing to act as a senator if duly and properly elected as one.’ “
Of course, this was after he had been unseated. He evidently thought that he could act as a senator, and that, when the election was over, and he was declared elected, he was duly elected as a senator. He writes further- “ I am advised that the proper course is a new popular election.
I must leave the responsibility of acting or not acting onyour wish to nominate me in Parliament entirely to yourself. If you do so and the result is that I am lawfully made a senator, I will act accordingly.
Richard Butler, Esq., M.P.”
– There is no protest there against his nomination.
– I fail to see any protest in that against his nomination . He merely throws the responsibility for nominating him upon Mr. Butler.
– He makes a prudential reservation.
– Is it not immaterial whether he agreed to the nomination or not?
– I do not know, but it is made to appear in the Committee’s report that he was so strongly convinced of his legal rights that he was even unwilling to be nominated for election as a senator by the Parliament.
– He says, “I am advised that the proper course is a new popular election.”
– Now I come to deal with section C of paragraph 5, and it will be found that we have a Committee, amongst the members of which Senators Symon and Dobson were legal gentlemen, putting this proposal forward - “ Choice by the people appears to your Committee to be the basis of the Constitution of the Senate, and until the people have had an opportunity to exercise and have effectively exercised their choice no other mode of choice or appointment can come into play. There can apparently be no casual or accidental vacancies until there is first an effective election by the people.” “ If, for instance, there had been no election by the people before the 1st January last for want of nomination, or owing to the Governor having omitted to issue his writ, or because the State Executive thought it politically or otherwise inexpedient to hold the election, then no one could say that the representation of the State in the Senate could in that case be filled by the Parliament, or it might be by the Governor, with the advice of his Executive. The antecedent condition to the right of either to appoint a senator is first an effectual choice by the people entitling the person to hold for the full term of service and the subsequent happening of a vacancy.”
I ask honorable senators to consider the extreme cases to which the Committee were reduced, in order to paint for the Senate a picture of what might happen - that no writ might be issued; that the Executive might not perform the duty they are sworn to perform under the Constitution.
– Just imagine a case in which there were no nominations for the Senate.
– I direct the attention of the Senate to the fact that in all the cases the Committee were compelled to fall back upon, what is suggested must happen before the people can have any choice at all. In trying to discover an analogy, the Committee had to fall back upon a condition of things which must occur before ever the people are asked to elect. They say, in the next paragraph of this section - “Your Committee do not think section 15 comes into operation at all, except in the case of a senator who holds an unchallenged seat as the choice of the people, or it may be of a person appointed under section 15 itself to hold the place of a senator so chosen by the people.”
In that paragraph, I say that the Committee gave the whole case away. Let us apply that reasoning to the case of Mr. Vardon, and ask ourselves the question: Was there a time when Mr. Vardon held a seat as the unchallenged choice of the people? The answer tothat question must be” Yes.”
– For how long?
– It does not matter if it was only for one minute after he had subscribed the oath and taken his seat. The fact remains that there was a time when, in the words used by the Committee in this paragraph, Mr. Vardon held an unchallenged seat as the choice of the people.
– The Court said he did not.
– That does not matter; it was a challengeable seat at all times, as were the seats of eighteen members of the Senate, but there was a time during which Mr. Vardon acted and sat here as a senator, and when his seat was not challenged.
– The honorable senator would smile at that as word-splitting on another occasion.
– I venture to say that Senator Millen who has a great regard for the legal ability and astuteness of Senator Symon would not defend’ that position. Yet Senator Symon makes this the test. Senator Dobson and others accepted it as the test; but applying it to Mr. Vardon’s case their whole contention falls to the ground.
– Rubbish !
– The Committee say -
Your Committee do not think that section 15 comes into operation at all -
If it does not come into operation at all except in this class of cases, then, given these conditions, it does come into operation
Except in the case of a senator who holds an unchallenged seat as the choice of the people, or it may be of a person appointed under section 15 itself to hold the place of a senator so chosen by the people.
Do the Committee mean by that that there could not be a casual vacancy created by any cause whatever until forty days from the election have elapsed ?
– Until the people have definitely elected a senator.
– Do the Committee mean to say that for forty days after an election there cannot in any circumstances be a casual vacancy?
– The honorable senator admitted some time ago that every one of our seats can be challenged.
– They are challengeable, but they were not challenged. And there was a time when Mr. Vardon satin this Senate in the same position as any other senator and was unchallenged. Therefore, there was a time when he was a. senator de facto and de jure.
– There was never a time when Mr. Vardon was not de facto challenged.
– A proper legal method of challenge is laid down. Does the honorable senator mean to say that meetings of the Labour Party in South Australia to consider whether they could raise the money to challenge Mr. Vardon constituted a challenge of his position? Surely it is straining the law to bring in mere newspaper paragraphs and to say that because there were meetings of the LabourParty for the purpose of “ raising the wind,” Mr. Vardon’s seat was challenged. Suppose that whilst Mr. Vardon sat in the Senate, and before the petition had been lodged - because he sat here before the petition was lodged-
– He sat for one day.
– That is quite sufficient. Suppose he had died that day. Would there not have been a casual vacancy then?
– No; the petition could still have been lodged and pressed to its end.
– How could a petition have been lodged against Mr. Vardon holding the seat if he had died? How could a petition be lodged against a man who was dead? And I contend that since Mr. Vardon sat one day as a senator in which he might have died, therefore he was de facto a senator. Had he died on that day no proceedings could have been taken against him.
– His dying would not have defrauded the people of South Australia of their rights.
– Therefore there was a time when Mr. Vardon held an unchallenged position as a senator chosen by the people. That, in my opinion, is sufficient to show that not only did the Committee act upon the advice of Senator Symon in putting legal technicalities aside, but they have also put law and common sense aside; and in putting in their report the test which I have mentioned they invite us to trample on the Constitution, and put it entirely out of consideration. If Mr. Vardon held an unchallenged seatas the choice of the people for a time, I say that he was truly a senator for the time when he held it. When he took the oath, his name was subscribed upon the roll of senators.
– Suppose there was a case of impersonation, and a man took his seat as a senator for five minutes before the fraud was detected?
– If there were a case of fraud, the rightful senator would not have taken his seat. But this was not a case of fraud. Does the honorable senator impute that it was not Mr. Vardon who took his seat here?
– That is not my point.
– We are not to consider supposititious cases, but must apply the test to the actual case. I come to paragraph F of section 5 of the report -
Your Committee think that the Houses of Parliament of the State of South Australia were not entitled under section 15 to fill the vacancy in relation to Mr. Vardon unless he was rightfully a senator by virtue of the direct choice of the people. He did not, according to the judgment of Mr. Justice Barton, fulfil that condition.
Now, Mr. Justice Barton never said anything of the kind. Honorable senators opposite cannot produce any statement in which Mr. Justice Barton said that Mr. Vardon was not at any time rightfully a senator by virtue of the choice of the people. I think that this is an unjustifiable construction to’ put upon the judgment of Mr. Justice Barton. There is no such passage in it. Further on, in paragraph G the Committee say -
If, as we have already pointed out, section 15 pre-supposes an original or antecedent choice, of a senator otherwise than under that section, such original or antecedent choice can only, according to section 7, be “ directly by the peaple “ - not a mere form of choice but an effective choice, and, obviously, a supposed choice cannot be effective in the case of a person declared by theappointed tribunal not to have been “ chosen by the people “ - a person to whom the “ attempted choice “ was void. It was not the place or seat occupied in fact by Mr. Vardon which was declared void, but the election of 12th December, 1906, by virtue of which he claimed to take and hold the seat. A man is either a senator or not, and under the judgment of Mr. Justice Barton Mr. Vardon never was a senator or held the place of a senator.
That is the construction which the Committee put upon Mr. Justice . Barton’s judgment. But let us look at what his judgment was. After dealing with the whole question of the admissibility or otherwise of certainballot papers, His Honour said -
As it is, having regard to section 205, subsection111, I must declare the election of Mr. Vardon to have been absolutely void.
Leaving out the word “ absolutely “ as of no consequence, what Mr. Justice Barton held was that the election of Mr. Vardon was void. He did not say, as the Committee make him say, “ I declare the election of the 12th December as to Mr. Vardon void.” I am, therefore, justified in saying that I think the Committee have put a very strained interpretation on Mr. Justice Barton’s judgment. Paragraph H of the Committee’s report says -
Section 15 is further limited to the case of a senator whose place becomes vacant “ before the expiration of his term of service.” Mr. Vardon’s term of service was either six years or nothing. It could only be for six years by virtue of the people’s choice.
Yet Senator Symon tells us that if we give the people the right of choice now, the term of service of the senator chosen will be only five years.
– The High Court have decided that.
– Nevertheless the Committee make the statement that the term must be six years or nothing.
– Yes, at that time.
– They say that it could only be six years. Here again they make an unreasonable distortion or extension of Mr. Justice Barton’s judgment. I cannot find anything in his judgment to the effect that -
The Court decided the people made no choice. The Court deliberately refused to express any opinion on that point. It was not the question which Mr. Justice Barton decided.
– If the election was void, the people have made no choice.
– My argument goes to show that Mr. Vardon was a senator, although the election was void. The Committee say -
Therefore Mr. Vardon had no term of service, in direct contradiction of the very test they apply in the last sentence of paragraph C.
His place, whether he was called a senator or not, cannot be said to have become vacant “before the expiration” of such a term when he was displaced, because he had no term at all, and there had been no election to give him a right or title to a term of service.
Now it is possible for an election to be voided because of bribery. Do I understand honorable senators opposite to say that if three senators were elected and a petition was lodged within forty days against one of them for bribery, and he was convicted, that would not create a casual vacancy, supposing the High Court to impose as one of the penalties that the seat shouldbe vacated?
– Declaring the seat vacant and declaring an election void are not the same thing.
– As this is the usual time for suspending the sitting, I think it desirable to announce that this debate will take precedence of all other business to-night.
Sitting suspended from 6.30 to 7.45p.m.
– When the Senate adjourned for dinner I was directing attention to paragraph H of the report, in which the Committee set out the absurd contention that the only term of service can be six years’. Suppose that after the period of forty days has elapsed a senator’s seat should become vacant by reason of his absence from the Senate for two months, his term, I take it, would end on the day when his seat was declared vacant. The same result would occur in the case of a senator becoming disqualified by bankruptcy. I wish to direct the attention of honorable senators to the fact that in paragraph H the Committee say -
The Court decided the people made no choice.
The Court decided nothing of the kind.
– That is the effect of the decision. If the election is void, then the electors did not choose.
– The Court decided that Mr. Vardon was not rightly elected, and that Mr. Crosby had a real majority. But it did not decide that there was no election, and that is quite a different thing. In paragraph I, as in section 3, the Committee has put into the mouth of the Court words which it never uttered.
– All the words within inverted commas are quotations.
– In this paragraph the Committee say -
Mr. Vardon was supposed to have been chosen by the people as senator, but the Court of Disputed Returns decided he was not so chosen ; that “ the attempted choice “ was void.
Reading the paragraph as it is framed, to whom would any person attribute the words within inverted commas but to the Court of Disputed Returns ? As a matter of fact, the words were used by the High Court in the mandamus proceedings, and were applied, not to the question of whether there was a choice of senator or not, but to the question of whether a mandamus could lie against the State Governor. Yetthey are used in this paragraph to make us believe that they were uttered by the Court which was deciding the legality of’ the election. We have just cause to complain of the use of the words in that fashion.
– Certainly, if the words are printed within inverted commas, it is deceptive.
– It is a quotation.
– According to the ordinary rules of grammar the reference is to the Court of Disputed Returns.
– It is all governed by the word “ decide. “
– The Court of Disputed Returns never used the words “ the attempted choice.”
– It has that construction.
– It has no other construction. The paragraph concludes with this statement -
The fact of his having sat could not give him a term of service unless a person not chosen by the people can, by taking his seat in the Senate, become or make himself the choice of the people.
That seems to me to beg the whole position, because it assumes that in defiance of the law a person can come in and take his seat as a senator. A person can only come in by conforming to the law, otherwise he cannot get here.
– He could, as I put it, bribe his way in, and the return would be in his favour.
– He could bribe the returning officer to declare him elected when he was not elected?
– No; he could bribe the electors to vote for him.
– He takes his seat here, not by virtue of that bribery, but by virtue of the Electoral Act, which, if it has been conformed to, qualifies him for a seat.
– And by virtue of the law he has to give up his seat.
– And my honorable friend calls it a casual election.
– A man cannot give up something which he never had.
– He gives up the de facto part of it.
– I do not think that I can attribute paragraph J to Senator Symon, because it is the one little ewe lamb which, according to the Minutes of Proceedings, was put in by the Committee. Its sponsor has something to be proud of, because it is about the most difficult English which I have ever attempted to analyze -
Even if it coul’d be contended, though we think it cannot, that Mr. Vardon’ had a term of service until the decision of the Court of Disputed Returns, it is plain that even his place <lid not become vacant “before the expiration of his term of service,” as required by section 15. The decision itself ended the supposed term - was, in fact, its expiration - and therefore the place became vacant not “ before,” as section 15 requires, but on or simultaneously with its expiration.
– That is very plain.
– The paragraph, I think, must have originated with Senator Dobson.
– Every word of the paragraph was written by Senator Symon.
– It seems to me to be an involved piece of reasoning. It is equivalent to saying that a man had and yet had not a seal’. That is the only meaning I can attach to the paragraph. Put alongside that paragraph the facts that Mr. Vardon did legally attend the sittings of the Senate, that up to the decision of the Court he continued to attend, and that but for that decision he would be here to-day.
– Of course he would, but the decision of the Court put an end to his term - to the whole thing.
– The term having expired with the decision of the Court, the honorable senator wants us to say that it did not expire, and that it never began - that something expired which never had life.
– His sitting, as a matter of fact, began, and it ended with the decision of the Court. But his sitting, by right, never took place at all.
– I give it up, and turn to paragraph K, in- which the Committee ask the Senate to abdicate its legal position under the Constitution, and to decide this question on political grounds -
To uphold the choice of the State Parliament in this case would, we think, require the Senate to say the Constitution means that in case of a void election the people, who were not to blame, are to be disfranchised, and their right of choice, which they were prevented by official carelessness from exercising, is to be transferred to others. We do not think that section 15 has or was intended to have such an effect.
– What is wrong with that?
– The question is not what the Senate has to say, but whether the Constitution has said that a casual vacancy shall be filled by the State Parliament, and my contention is that it has so provided. Whether that is the best means to adopt or not is, in view of all the circumstances, quite beside the question. The Senate has really no option ; it has to obey the law as it is. In paragraph L I find this passage -
A person might, by resigning, not only defeat the petition, but the claim of some one else to the seat, and throw the choice into the hands of the State Houses of Parliament, or it might be the Governor, with the advice of his Executive Council.
What do the Committee admit there? They admit that if, on the day he took his seat, Mr. Vardon had resigned, he could have defeated the right of the petitioner, Mr. Blundell, . to the seat, and thrown into the hands of the State Government, or the State Parliament, the right to elect a successor. The Committee are pointing, out the danger. Let us apply the argument to the present case. Senator Vardon sat here on the first day of a session. It was well known that the Labour Party in South Australia, through Mr. Blundell, were taking steps to petition against Mr. Vardon’s return. According to that paragraph of the report, . if Mr. Vardon had said : “ I think that in the State Parliament there is a majority against electing a person opposed to me in politics. I think I have a majority in the State Parliament. I know that a petition is to be presented against me. I shall resign.”- The Committee point out that by doing so he might not only have defeated the petition, but the claim of Mr. Blundell to the seat, and thrown into the hands of the State Parliament, or the State Government, the election of the successor.
-Colonel Cameron. - Provided that a petition was not lodged against him, but his resignation would not alter the fact that a petition might be so lodged.
– I would remind Senator Cameron that Mr. Vardon sat here for one day when there was no petition against him, and therefore the very condition set out by the Committee in that paragraph was possible in his case. Mr. Vardon could have resigned on the .first day when he took his seat, and, according to the contention of the Committee, he would, by so doing, have* prevented Mr. Blundell^ petition being lodged against him, and created a casual vacancy.
-Colonel Cameron. - Not necessarily. His act of resignation would not prevent a petition being presented.
– The Committee, including Senator Symon and Senator Dobson, .say that it would. They warn the Senate that it is one of. the possibilities of the action which is proposed to be taken by the amendment. They say -
It was pointed out that the words “ place of a senator becomes vacant,”’ or their equivalent, also occur in sections 13, 19, 20, and 45, where they can only refer to persons effectively constituted senators, and it was argued that they should have the same meaning in section 15. If, on the other hand, in section 15 they are to be taken to refer merely to the seat occupied by a person claiming to be a senator, but whose claim is disputed and petitioned against, then it was submitted they would mean the same in section 19, with the result that such a person might, by resigning, not only defeat the petition, but the claim of some one else to the seat, and throw the choice into the hands of the State Houses of Parliament, or it might be the Governor with the advice of his Executive Council.
– The Committee there point out what would happen if the Senate insisted on saying that this was a casual vacancy.
– The Committee, by that very statement, admit that had Mr. Vardon resigned his seat he would have defeated the petition. The Committee then continue -
This argument strongly supports the view that the words “place of a senator,” in section 15, and the corresponding words in section 19, can only be satisfied by a person effectively constituted “ a senator,” and rightfully holding the “ place of a senator.”
That was Mr. Vardon’s case on the first day of last session -
If Mr. Vardon had not a “ place “ which he could resign under section 19 he had none which the State Parliament could fill under section 15.
Senator Cameron will admit that Mr. Vardon, had a place which he could resign on the first day of the sitting. The Committee go on to say -
Resignation under section 19 ought not, in the opinion of your Committee, to be open to a person whose election is sought to be declared void, not only in cases where the seat is claimed by some one else…….
It was claimed after the second day, but it was not claimed on the first day of last session. Notwithstanding the opinion of the Committee, and however much we may regret it, the door of resignation is always open to a senator. It was open to Mr. Vardon, even from the ist of January, before Parliament met. I come to paragraph M of the Committee’s report -
It is not contended that if the whole election had been declared void the State Parliament could, under section 15, have appointed three senators to fill the vacancies, and your Committee are unable to see what difference there is in principle in the case of an election declared void as to one, or why it should be said there is a casual vacancy in the case of one which is not so in the case of three.
That is the point upon which Senator Dobson relied so’ strongly, but certainly it is within the region of human possibility for three senators to die during their term of office, and then, no matter how much we might regret it, the State Parliament would elect their three successors. The Committee regret the possibility. So do I, but it is in the Constitution, and our decision in this case will not alter the Constitution. If Mr. Vardon held the place, and that place was declared vacant, and has been rightfully filled by Senator O’Loghlin, through the action of the State Parliament - if all that has been done according to the Constitution-it does not matter a fig whether it applies to three senators, or six senators, or eighteen senators.
– It is a startling conclusion.
– Surely the honorable senator has never argued that a Court should not apply the law because of the consequences? If a Judge proposed to take that ‘course, the honorable senator would remind him that there was the law, and that he was on the Bench to administer the law. as he found it, and not to deplore the possibilities or the consequences of the law. This Senate is a legal tribunal in this case, and its duty is to declare what it believes to be the law.
– That is just where I differ from the honorable senator.
– Senator Mulcahy cannot get away from the fact that Parliament is a Court, and the only Court which can deal with a case of this kind. We are a Court, whether we like if or not, however imperfect we may be from the judicial point of view.
– Is there no such thing as a Court of Equity?
– There is only one kind of Court in this case - an Electoral Court, to deal with the vacancy. We cannot divest ourselves of our judicial functions unless we amend the Constitution or the Electoral Act. There is a very naive statement in paragraph O of section 5 of the Committee’s report -
The attention of your Committee was also directed to section 205, sub-section 3, of the Commonwealth Electoral Act.
Is it not a wonderful indication of the guileless nature of the Committee that when their attention was directed to sub-section 3 they never by any chance stumbled across sub-sections 1 and z of that section? I wonder whether when Senator Dobson’s attention was directed to sub-section 3 he put a piece of paper over sub-sections 1 and 2 so that he should not see them? The Committee say that sub-section 3 of that section provides that “in the case of an election being declared void there shall be a new election.” I can imagine the virtuous indignation with which the Committee sheltered themselves behind sub-section 3 when challenged with not having taken the right course, and said, “ We have no option but to declare for a new election.”’
– All that section is subject to the Constitution.
– So is sub-section 3, but the Committee bring it forward as one of the reasons for their conclusion. Subsection 1 of that section says -
If any person returned is declared by the Court not to have been duly elected he shall cease to be a senator or member of the House of Representatives.
How can a man cease to be what he is not and never has been? The very fact that those words appear in that section shows that the Legislature contemplated that if the Court of Disputed Returns declared a Senate election void as to a senator, he wOuld cease to be a senator by that declaration ; but recognised, by declaring that he would cease to be a senator, the fact that he had been a senator, and therefore had had a term of office.
– The Legislature recognised that he had acted as a senator.
– The section does not say so. The Committee are quite willing to take the strictest and most literal interpretation of sub-section 3, and do not want to apply the Constitution to it. They quote it without qualification. They say, “ The words are clear as daylight, and mean what they say.” But when I point out that the words of sub-section 1 mean what they say, Senator Dobson interjects that we cannot go beyond the Constitution, even in the Electoral Act.
– The sub-section could not say “ shall cease to be” and to have been a senator.” That would be absurd.
– Sub-section 1 could have said “ shall be regarded as never having been a senator,” or “the seat shall be regarded as never’ having been filled.’.’
– -That sub-section is surplusage, but it admits the fact that a man might be de facto a senator without being a senator de jure.
– In paragraph P the Committee again quote in inverted commas; the words “ returned as elected,” and apply them to Mr. Vardon. That is another misuse of those words, because when Mr. Vardon was’ returned they had not been used. They were used by the High Court in Svdney in the mandamus proceedings, when Mr. Vardon had ceased to be a senator. The Committee have no right to use those words as if they were applied to Mr. Vardon. I come now to paragraph R. I. invite the attention of honorable senators to these words -
Your Committee respectfully point out that it would scarcely be just that the people should forfeit their right to choose a senator ….
But whatever is provided in the Constitution is just. Neither the people nor the Parliament have any right to expect more than what is contained in the Constitution. Our contention is that the Constitution provides a means of filling casual vacancies,that this is a casual vacancy, and that therefore it is just that it should be filled in accordance with the Constitution.
– Does the honorable senator contend that- the people of Aus- tralia understood the Constitution as submitted to them, when we cannot understand it ourselves?
– Having looked through the Committee’s report, I feel that I am not warranted in accepting it, or in being guided by it, because, applying the tests laid down by the members of the Committee, I find that their report will not bear out their contentions.
– Does the honorable senator agree with the addendum that the matter should be referred to the High Court ?
– I shall come to the addendum presently. I say that applying the tests laid down by the Committee, I am unable to accept their report as bearing out their contentions. What authority have I for forming a contrary opinion? Certainly not my own legal knowledge. I fall back upon the opinions which have been given by various eminent lawyers. I find that Mr. Dashwood and Mr. Murray, of South Australia, give this opinion -
I find also that Mr. Glynn, a member of another place, gives this as his opinion -
In my opinion, therefore, the “ procedure to be adopted in view of the judgment referred to in order to secure the proper representation of this State in the Senate “ is that prescribed by section 15 of the Constitution. The two Houses of Parliament sitting and voting together should choose a person to hold the vacant place until the expiration of the term or until the election of a successor at the next general election for the House of Representatives, or the next election of senators for the State, whichever shall first happen.
It appears to me, therefore, that the course which has been adopted is in accordance with the Constitution, and I am prepared to indorse it. Now, as to referring the case to the High Court, I wish to say that I regret that when we dealt with the Electoral Act we did not, as we thought we had done, close up all the loop-holes. As to the future, I hope we shall have legislation by which all cases of disputed returns, from any. cause whatsoever, shall go automatically to the High Court. In this connexion, what I say with respect to this case is not to be regarded as expressing my final opinion. My present feeling is that, whether rightly or wrongly, by the action of the man who feels aggrieved, the man who has lost the seat, the Senate has been selected as. the Court to try this case. It was not selected by those who are supporting the contention that Senator O’Loghlin is legally here, but by the very man who has been displaced by the judgment of Mr. Justice Barton. The question of the fitness of this tribunal should have been weighed by him and by his legal advisers. The Chairman of the Committee of Disputed Returns and Qualifications has said that, in his opinion, this is the proper and, indeed, the only tribunal to settle the question. He has declared that it could not be referred to the High Court. A little time ago we were dealing with the Judiciary Bill, to prevent certain classes of cases from going in future to the Privy Council. What would have been said if, at that time, we had proposed to take a case that was pending, and in connexion with which leave to appeal to the Privy Council had been given, away from the Privy Council, ‘and handed it over to the High Court ? A more appropriate example would be a proposition to take a case from the Privy Council itself, if we had the power, and transfer it to the High Court. That would be analogous to a proposal to take this case from the Senate at this stage and transfer it to the High Court.
– Who will do that if it is done? Will it not be the Court itself, and not some outside party?
– The Senate could not do it. It must be done by a Bill.
– It could only be done with the approval of the Senate.
– People over whom we have no control would have the work of framing the Bill, and the conditions on which the transfer should take place.
– But this Court would have to concur.
– That is so.I have not finally decided that I am opposed to this particular case going to the High Court, but I do say that in the future, so far as we can we should prevent any of these cases coming before the Senate. This tribunal haying been chosen in this case by the person who failed, and having been indorsed by his political comrade and the champion of his cause in the Senate–
– And having been provided for by the Constitution.
– Just so; and Parliament not having otherwise provided, there are strong reasons why it should not be removed from this Court.
– Is it correct to say that this tribunal was chosen by Mr. Vardon himself?
– Yes; he petitioned this Court.
– Did not the High Court, declare that he had no alternative but to petition the Senate?
– We have received -
The petition of Joseph Vardon, of Victoriaavenue, Millswood, in the State of South Australia, in the Commonwealth of Australia, printer, humbly complaining -
There is no mention in the petition of his having been directed to appeal to the Senate.
– Perhaps not; but surely he was given that direction by the High Court.
– He was not given the slightest direction by the High Court. In one part of their judgment the High Court expressed some doubts as to our powers. I direct the attention of Senator Cameron to these words from the judgment of the Court in the mandamus proceedings
It is clear, however, that when a vacancy occurs in the Senate it must be filled in the manner prescribed by the Constitution, and that the Parliament cannot by any statute make any valid provision to the contrary. It is equally clear that the Senate could not by any exercise of its powers under section 47 affect the question of the proper mode of filling a vacancy.
– Hear, hear; it is a matter for the High Court.
– The only Court that could deal with it is the Court of Disputed Returns, and the High Court judgment goes on to say - and that the powers of the Court of Disputed Returns are not more extensive.
– Suppose we decide as the honorable senator thinks we ought to decide, does he mean to say that that decision would not be open to appeal to the High Court by either of the parties?
– Certainly, it would not.
– Appeal from Parliament to a Court !
– I am certain that Senator Dobson will uphold me in that contention. The suggestion that there could be an appeal from the creator to the created has only to be stated to disclose its absurdity. I do not at this juncture say that I would be prepared to remit this case to the High Court, but I am certainly prepared to prevent such cases in the future coming before the Senate.
. -I enter upon this discussion with a certain amount of diffidence, recognising the legal technicalities that have been introduced during the debate. I listened with a great deal of attention to the speeches that have been made. First we had a speech from the Chairman of the Committee that presented the report with which we are dealing. The honorable and learned senator certainly made what might be termed a really good speech. He put his case fairly and well. I also listened to the speech in reply by the VicePresident of the Executive Council, another legal gentleman, perhaps just as eminent as is Senator Symon. Then we had an address from Senator de Largie, giving the views of the two honorable senators who signed the addendum to the report. We have had several speeches since, chiefly from honorable senators of some legal attainment. Amongst them was Senator St. Ledger, and, though I listened carefully to what the honorable senator said, he did not make the issue any more clear to me than it was before he rose to address the Senate. We have just now had an address from Senator Pearce, who has very lucidly dealt with almost every paragraph in the report presented by the Committee. It appears to me that the key-note of the report is the excellence of the principle of popular election. Regardless for the moment of legal technicalities and the sections of the Constitution, Senator Symon and his colleagues in framing the report of the Committee laid particular stress on the necessity of electing men to representative positions by the voice of the people. It has been very refreshing indeed to hear Senator Symon and his colleagues advocating this great principle. I should like to ask Senator Symon or his colleagues whether they are prepared to extend that principle of popular choice to the election of every representative assembly in Australia. I am sure that they are not, and, in my opinion, they are simply using this lever of the excellence of popular election in order to buttress a report which has been torn to shreds by Senator Pearce.
– Is not that attributing motives?
– I do not attribute motives to any honorable senator. I would be the last member of the Senate to deny to the people the right of choosing their own representatives. But I have to consider what is the expressed will of the people. The people of Australia were consulted before pur Constitution was adopted. In every part of this island continent, the question was put to them whether they were in favour of the adoption of the Constitution. Therefore, we may regard it as an expression of the people’s will. In exercising our rights under ,it, we are not in the slightest degree attempting to frustrate the expression of the people’s will. Did any member of the Convention anticipate that such a question as this would come up for consideration? Reading over the debates of the Conventions, I find no reference to the likelihood of such a case, and in conversation with gentlemen who were members of the Convention it has been candidly- admitted to me that such a. position was not foreseen. We must, therefore, be guided by the exact letter of the Constitution.
– “The letter killeth.”
– And so do some senators kill their case by airing their alleged legal knowledge. It has been stated that the Senate has no. right, in the face of section 192 of the Electoral Act, to deal with the question at all. That section reads -
The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.”
If that section be construed literally, why was an Elections and Qualifications Committee appointed by the Senate, and why did that Committee consider this question ? If we have no power to deal with it, why is it before us now ? That question can only be answered by reading section 47 of the Constitution. I admit that I have read many Acts of Parliament which can be construed in different ways, and very often these various constructions have . given work to the legal fraternity. But, to my mind, section 47 is open to but one construction. It reads as follows : -
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or inspecting a vacancy in either House of the
Parliament, and any question of a disputed election to either House shall be determined by the House in which the question arises.
Therefore, notwithstanding section 192 of the Electoral Act, we have full power to deal with the matter before us. We have the opinion of the Committee appointed by the President of the Senate, the opinion of the High Court in. the application for a mandamus against the Governor of South Australia, and the opinion’s of three eminent lawyers of South Australia, Messrs. McMahon Glynn, Murray and Dashwood. On the other side, we have the opinion of Senator ‘ Symon, admittedly an eminent legal luminary. I have carefully read the whole of the opinions formulated, and the report of the Committee over which Senator Symon presided. I likewise read Mr. Justice Barton’s judgment in presiding over the Court of Disputed Returns. I am asked to come to a decision as a senator. I must say that the weight of evidence is decidedly against the report presented to us. There is one paragraph in that report upon which I had intended to comment, but Senator’ Pearce has anticipated me. I refer to paragraph I. in which the words, “the attempted choice” are used. Those words are placed in inverted commas. When I first read them, I naturally concluded that they were the words of Mr. Justice Barton. But, in looking at the report of his remarks, I can find no such words. I was naturallyanxious to know why the words were placed in inverted commas in the Committee’s report. I will not say that they were intentionally so treated, but they are certainly misleading. If those words were riot used by Mr. Justice Barton, they ought not to be placed in inverted commas. We have a right to expect, in a report of a Committee sitting in a judicial capacity, that everything shall be straightforward and plain. I do not think that any honorable senator will question my argument when I say that an error was made in placing those words in inverted commas. They were riot, perhaps, intended to mislead, but a wrong construction ‘ might easily be placed on them. My study of the question leads me to the conclusion that a casual vacancy occurred, and that the only way of filling it -was by election by both Houses of the State Parliament. Hitherto, there has been an absence of heat in the debate, nor has there been any suggestion that any senator is acting from party motives. I should refuse to consider the question in any such light. I am actuated in my decision by a careful reading of the judicial : opinions, and the opinions of eminent counsel. ExSenator Vardon certainly took his seat in the Senate. He subscribed the oath of allegiance, I believe, on the same day on which I did so. He also voted as a senator. He must, therefore, have been a senator for a specific period. A close analysis of the Committee’s report shows that one or two paragraphs in it contradict each other. In voting, as I intend to do, for the amendment submitted by the VicePresident of the Executive Council, I do not think that I .am denying the people of South Australia the right to choose their representatives. Even if I were disposed to be actuated bv party bias, there is no need for such a disposition on this occasion, because I do not think there is a State in the Union to which the party to which I belong could appeal with a greater certainty of success than South Australia. But there is no necessity. We are here under the Constitution, and if we carry out the letter of the Constitution, we shall be’ doing our duty. In no way are we denying the people their right to elect their own representative.
– It is the Constitution which, according to the honorable senator, denies them that right.
– The Constitution has given us the right to determine the question in the manner in which it has been determined, and the Constitution is the creation of the people’s will. If there is anything wrong with the Constitution, it can be remedied by “ the people. At the present time we are necessarily guided by the Constitution. We cannot remit the case to the High Court until it .is clothed with additional power. Suppose that by legis.lation the question of the right of Senator O’Loghlin to continue in his position were referred to the High Court. We should admit at once that there was a flaw in the Constitution.
– Parliament has already made that admission by passing two or three Bills.
– The question is. What is the correct interpretation to put upon the Constitution? By passing a Bill we should admit that the Constitution is wrongly interpreted or is not’ in accordance with the people’s wishes. I do not think any honorable senator is desirous of pass ing a measure which would have a retrospective, effect. Therefore, whilst I shall welcome any measure which would be the means of preventing such a discussion here in the future, still I consider that we ought to deal- with this case on its merits, as presented to us. During the course of this debate there have been certain allusions made to party bias. . Taunts have been hurled from one side of the Chamber to the other. I feel confident that throughout the proceedings of the Committee Senator Symon has been a most impartial Chairman. But had I been in his position I would have refused to preside over its deliberations. Knowing that he had toured South Australia under the same political auspices as Mr. Vardon, and had advanced the same political propaganda, he ought not to have accepted a position in which any person could impugn his impartiality or unbiased judgment. We are called upon to choose between the motion and the amendment. I do not know whether the amendment will ultimately decide the question, but it will receive my support in preference to the motion, because I think that in taking that course we shall be simply carrying out the provisions of section 47 of the Constitution. Those who have supported the adoption of the report have said, almost in the same breath, that the Senate cannot decide the question. But if the report is adopted the Senate will have practically decided the question. Either we have the right to consider the question or we have not. The wording of section 47 proves conclusively, even to the lay mind, that we have the power to act. I have no intention to refrain from exercising any power which the people have conferred upon me. I shall support the amendment, and. if it can be proved afterwards that the machinery of the Constitution is not effective in dealing with what may be called complex situations, I shall welcome the introduction of a Bill’ which will provide the requisite machinery to put an end to them once and for all:
– I rise to explain how I intend to vote, because I feel that an explanation is necessary. Before the report of the Committee was submitted to the Senate- and I have not- read it yet - I had come to the same conclusion with regard to this case as I came to, many sessions ngo, when the question of disputed returns, was before the Senate. At that time every senator thought that in amending the Electoral Act as we did we had for ever avoided the possibility of the Senate having to decide such a difficult question. I venture to say that there is no senator, sitting on either side of the Chamber, who did not welcome that opportunity of getting rid of such a difficulty as has cropped up at the present time. I admit that so far as the amendment of the law is faulty - and apparently it is - I, in common with every other senator who was here when it was passed, must take my share of the blame. But I also recognise that it is probable that in the future we may have an exact repetition of the present case. To me it is a matter, of wonder that when we were amending the law we did not provide for such a contingency. My position in that respect has not changed. I shall not vote for the Senate to decide this question one way or the other. I cannot vote for the adoption of the report, nor can I vote for the amendment. With me the question is not so much whether Mr. Vardon or Mr. O’Loghlin shall get the seat, as whether the Senate itself is on its trial. I can conceive of nothing more disastrous than that the Senate, when it has the opportunity to remit this very difficult question to a Court, should attempt the solution of it. That being so, I cannot and will not vote for the motion, because the report of the Committee attempts to settle the question. I certainly cannot support the amendment, because that equally attempts to settle the question. During this debate, which has lasted a long time, I have heard certain interjections which have indicated that their authors have some doubt as to what we can do if we do not decide the point. I have the exact text of Mr. Justice Barton’s judgment, from which I wish to quote only one sentence -
Parliament can no doubt confer authority to decide such a question on this Court, whether a Court of Disputed Returns or otherwise.
In view of that statement I cannot believe that any honorable senator, having regard for the Senate and his own position, can hesitate to remit this delicate and difficult question to the proper tribunal. To my surprise, I have heard some honorable senators urge that we should deliberately - but from my point of view rashly - constitute ourselves a tribunal to settle a question which, according to Senator Best, is bristling with points of law.
– No, the Constitution has constituted us the tribunal.
– The honorable senator knows that there is a difference. He joined with me and others in an honest attempt to divest the Senate of all its power in this regard when we were amending the Electoral Act.
– Yes, and I am prepared to do it again.
– I am prepared to do it at once. I will do it at any time when I discover that we have not invested the High Court with sufficient authority. The time to act is now, since the defect in the law was not discovered earlier. Seeing that we can find a proper tribunal to deal with the question, there ought to be no hesitation on the part of any senator to avail himself of this opportunity. So far as I understand the position, Parliament may, under section 47 of the Constitution, pass a very short Bill to amend section 197 of the Electoral Act. I hope that in order to extricate the Senate from a most invidious position the Government will at once bring in such a measure. We ought, I think, to look at this question from the stand-point of fair play. I do not accuse Mr. Vardon or Mr. O’Loghlin of desiring to take advantage one of the other, but an appeal to the authority which sent us here is, after all, the one which we ought to prefer. If we do not, I do not know what the result may be. I shall welcome the man chosen, whether he is Mr. O’Loghlin or Mr. Vardon, or any one else, so long as he is returned as the rest of us were. Stupid blundering on the part of an official has been, I suppose, the cause of the whole trouble. Following upon that, there has been a vote in the State Parliament, and now the matter is before the Senate, and we have to try to divest ourselves of all party feeling.
– Would the honorable senator be prepared to amend section 15 of the Constitution so as to send all cases of vacancies to the people?
– I should not like to answer that question rashly, but I will join with any party in the Senate in preventing, to the utmost of my ability, the possibility of such an occurrence as this. In every Parliament in the world it is now recognised as most undesirable that a disputed return should be settled by persons who are interested in the result. We are practically asked to constitute ourselves a kind of enlarged Full Court. It is not thinkable that a Judge of any Court where the Englishlanguage is spoken would consent to try a case in which he was personally interested.
– What about the honorable senator’s leader in this Chamber?
– If my leader were a Judge in a Court of law, I am certain that he would absolutely refuse to try a case in which he was personally interested. That is the very foundation and strength of our Courts of Justice. We are invited to adjudicate in a case in which we are personally interested. We have to admit, first of all, that we are not competent to decide the question; and, secondly, that we are prejudiced and biased, and that we have personal interests. All that tends to bar us from attempting to decide the case. I will agree to no report by which the Senate itself attempts to decide this question, and, therefore, I shall have to wait for some honorable senator to move in a direction that will enable me to vote to refer it to the High Court.
Question - That the words proposed to be left out be left out - resolved in the affirmative.
– The question now is that the words proposed to be inserted be inserted.
.- I move -
That the amendment be amended by leaving out all the words after the word “ Senate,” with a view to insert in lieu thereof the following words : - “ as the question involved in the petition of Joseph Vardon against the choice of the Honorable James Vincent O’Loghlin as a senator for the State of South Australia is a difficult point of constitutional law which any decision of the Senate will not finally settle, it is a proper one to refer to the High Court, and that the Government be requested to introduce legislation for this purpose at the earliest opportunity.”
Those are practically the words which Senator de Largie and myself embodied in our addendum to the report of the Committee. When the Committee first sat I do not think that any of its members thought that they were asked to deal with avery complicated question. Opinions had been given by a number of legal authorities in Melbourne and Adelaide; and acted upon by the Government of the Commonwealth and the Government of South Australia, who believed that they were observing the provisions of the Constitution. When Mr. Vardon’s petition was presented to the Senate, there was no other way of dealing with it than by referringit to the Committee of Disputed Returns and
Qualifications. During the speech of the Vice-President of the Executive Council yesterday, he was asked several times, “ Why did you refer this question to the Committee?” It was because there was no other way. The Government had no choice. The procedure is laid down in standing orders 312, 313, 314, and 315. Standing order 315 says -
If the above-mentioned conditions have been complied with, the Clerk shall so certify on the petition, and the President shall lay the petition on the table, and shall forthwith refer the same to the Committee of Disputed Returns and Qualifications.
The Government were not able to move to refer the matter to any other tribunal than the Committee appointed by the Senate.
– I moved the motion “ That the petition be referred at once to the Committee of Disputed Returns and Qualifications “ under standing order 91.
– The further the case went before the Committee the more I, as a layman, and, I believe, Senator de Largie, realized that, in the conflict of opinion on the part of men who had made a study of the law, there was a very poor chance of our being able to “arrive at a decision which would settle the whole question from the stand-point not only of this one case, but of all other similar cases. What we desire is that all such cases shall be decided by the High Court, and so taken out of the hands of Parliament altogether. If that position is brought about, the Houses will from that time forward know exactly the position in which they stand in relation to disputed returns. I, as one of the Committee, ‘saw nothing of party bias in its proceedings. To contend that party bias existed because the report was drawn up by the chairman and was supported in nearly every instance by all the members of the Committee, is to cast a reflection on the ability of Senator de Largie and myself to dissect the report and draft it in a different way, or alter its whole complexion., I was present during the whole time that the Committee sat, and I must say - and I think Senator de Largie can bear me out in this - that we saw practically no evidence of party bias.
– How did the chairman treat Senator O’Loghlin?
– I am not going to deal with that question. The honorable senator made a statement regarding the chairman of the Committee, which he withdrew.
– I did not withdraw it.
– I understood the honorable senator to withdraw the statement, after Senator Symon rose and asked that it should be withdrawn.
– That is a mistaken view. It was another question.
– It was the same question. Senator O’Loghlin himself stated that he had no fault to find with the opportunity that was given to him to state his case to the Committee.
– Senator Symon objected to my making one statement, and I had to appeal to the Committee.
– That was so. Senator O’Loghlin asked the Committee whether it would not be fair to give him a chance to make whatever statement he desired. Leave was granted, and the honorable senator declared himself satisfied.
– Of course I had the right to do it.
– I admit that the honorable senator had the right to make the statement. He was given the opportunity and expressed himself as being satisfied. As the inquiry went on we realized that there was a tribunal which would be better able to sift the opinions given by legal luminaries, and would at the same time be in a position to interpret any section of the Constitution referred to during the inquiry. When we were considering the Electoral Bill I believe that honorable senators were all of the opinion that we were remitting every case that might arise in connexion with elections to the High Court. It appears that there was a defect in the law we passed at the time. Members of the Senate were prepared to take those questions out of the hands of Parliament andput them into the hands of the final authority on the Constitution. It seems to me that, now that a question of the kind has come up for consideration, we should be prepared to carry out what we intended in dealing with the Electoral Bill. If it were not possible to submit this matter to the High Court, I should have no option but to vote for the amendment moved by the Vice-President of the Executive Council. If I were to do anything else, I should be expressing the opinion that the action of the South Australian Parliament in this matter was absolutely wrong. I am sure that on the advice tendered by the law officers of the Federal. Parliament, and the law officers of the State of South Australia, the Parliament of that State acted in good faith in attempting to fill the vacancy which had occurred. But when there is an opportunity to have the matter decided by a more authoritative opinion than that of the law officers of the Commonwealth or of any State, we should take advantage of that opportunity. Some honorable senators have said that while they are agreed that all these questions should in future be dealt with by the High Court, they do not think it right that the High Court should deal with this particular case. I have no hesitation in saying that I think the Senate is not a fair tribunal to deal with any of these questions. As Senator Clemons has said, we are all more or less biased in dealing with such matters by party considerations. I acknowledge that I am influenced by party bias in such matters, just as other honorable senators are, and when we realize that the Senate is not a fitting tribunal to deal with these questions we should, I think, adopt the only course that will be satisfactory to the Parliament and the people. It would be in no sense derogatory to the Government to accept my amendment. It is better that the Senate should be unanimous in a matter of this sort, and I have not heard any reason why the case should notbe dealt with by the High Court. Although the Vice-President of the Executive Council has moved an amendment on the original motion, I think that, in view of the way in which the issue has been clouded by contrary opinions from legal members on either side and by a report which, according to Senator Pearce, is wrong and inconsistent, the best thing the honorable senator could do even now would be to accept the amendment I have moved.
– I very, gladly accept the amendment which has. been submitted by Senator Turley, recognising as I do that it is strictly in accordance with the spirit of our electoral, legislation, and recognising, moreover, that, whether consciously or unconsciously, the Senate might have great difficulty in coming to a decision in the strictly impartial spirit with which judicial tribunals should deal with matters of this character. In the circumstances, I think that the Senate will be consulting its own dignity and doing full justice by agreeing to refer this somewhat difficult and complicated question to a tribunal whose impartial judgment on a pure question of law will form a precedent for our guidance, seeing that that tribunal is eminently qualified, and was specially constituted, to deal with such questions. I willingly accept the suggestion which the amendment contains, that the necessary legislation should be introduced for the purpose of giving it effect. In all the circumstances, I think the Senate can congratulate itself upon having reached a happy compromise, and I strongly urge that Senator Turley’s amendment should be unanimously accepted.
. I wish to say that I am very glad , that Senator Best has spoken in the way he has done, and has accepted Senator Turley’s amendment. I have risen to point out that as the question of who is the third senator for South Australia has not yet been definitely settled, there should be no avoidable delay. I hope we can interpret Senator Best’s remarks as meaning that the Government recognise the urgency of the position, and will as soon as possible introduce the necessary legislation so that in the course of perhaps a week or two this matter can be referred, as we all desire, for the final decision of the High Court.
Amendment of the amendment agreed to.
Amendment, as amended, agreed to.
Question, as amended, resolved in the affirmative.
That in the opinion of the Senate, as the question involved in the petition of Joseph Vardon against the choice of the Honorable James Vincent O’Loghlin as a senator for the State of South Australia is a difficult point of constitutional law which any decision of the Senate will not finally settle, it is a proper one to refer to the High Court; and that the Government be requested to introduce legislation for this purpose at the earliest opportunity.
Motion (by Senator Best) agreed to-
That the sum of£50, deposited by the petitioner in relation to his petition, be returned to him or to his representative.
Motion (by Senator Keating) proposed -
That the Bill be recommitted for the reconsideration of clause 2, the first schedule in respect to the items copra, coffee, and tobacco leaf, and the second schedule.
– The matter is governed by standing order 207, which provides that -
On the Order of the Day for the third reading being read by the clerk, and before the motion is carried “ That the Bill be now read a third time,” the Bill may, on motion, be recommitted either in whole or in part.; in which case if amendment be made a subsequent day shall be appointed for the consideration of the report - and so on. The Minister is therefore in order in submitting his motion.
– The item Coffee in the original Bill was in the form of “ Coffee, Raw,” and has been amended into “Coffee, as prescribed.” In consequence of a ruling given by the President on a subsequent item, it appears that we have amended the item Coffee in a way that was not competent for us. That is whyI propose to ask honorable senators to restore the item to its original form.
Senator Colonel NEILD (New South Wales) [9.32]. - I am astonished that my honorable friends opposite have, in their wisdom, but with a mercilessness which is hardly characteristic of them, thrown over the poor old Angora goat. There is to be mercy for copra and for raw coffee, as well as for tobacco leaf, but the Angora is to go. He is shot overboard, and there is no more of him. There is no place for the goat in this Bill. I have risen, however, particularly to draw attention to the rather odd position in which we are placed by our Standing Orders. As they have been under the consideration of the Standing Orders Committee for three months, I hope that the Committee will take into consideration the eccentricity of genius under which the present proceedings are taking place, because I take it thatthis particular outrage on parliamentary custom is a remnant that has escaped from some niche in the records of the South Australian Parliament. I do not think that it could have come from any other source.
– We have been working under it for six years.
– I know that perfectly well. I also know what is the English practice and the practice of Parliaments that follow the English example.
– What is the English practice ?
– It is for the third reading to be moved by one Minister, and for an amendment for recommittal to be moved by another. You, Mr. President, are as well acquainted with that practice as I am.
– We have had these Standing Orders for six years.
– But the practice is irregular on the face of it. Here is an Order of the Day to do a certain thing, but instead of that Order of the Day being moved, something else is moved in connexion with it.
– My honorable friend is not a past master in parliamentary procedure, and he need not “chip in “ upon it because it is a matter with which he is not acquainted.
– Is the honorable senator apast master?
– Yes, I am, if it comes to that. Twenty-five years’ experience in parliamentary proceedings are, perhaps, worth rather more than five years’ acquaintance with them. The present practice is really absurd, and I am quite sure that the Standing Orders Committee will take it into consideration with a view of making a correction. After the ruling which you, sir, gave the other day, I do not think that there is any need for an alteration to be made in respect to coffee. Your ruling was confirmatory of a decision given by me as Temporary Chairman of Committees. My honorable friend Clemons laughs. His laugh is like the “crackling of thorns under a pot,” as Solomon says.
– It must have been an excellent ruling if it confirmed the honorable senator’s decision !
– That sort of laugh is what Solomon refers to as having relation to “ a fool and his folly.” I am speaking, of course, from memory with respect to the schedule, but my recollection is that the amendment as to which the ruling was given would have involved a diversion of the grant originating in another place. In this particular case, there does not appear to have been any diversion. The amendment made was rather a limitation than an extension. But I am not sure whether I am not making a mistake as to what happened. I did not know that the matter was coming up now. Had I known that the Government intended to proceed with this business to-night I should not have consented to postpone the private business standing in my name. As to the tobacco item, I shall vote with the Government, but as to copra, I am against a recommittal. . We need not worry about spending money in growing copra in Australia, because we can get all we want from Papua.
– When the Bill was previously before the Senate I suggested an amendment in sub-clause 2 of clause 3, with a view of enabling part of the bounty on account of jute to be given for the production of what is known as native jute. A great deal was said about the importance of producing jute in Australia. There was said to be a shortage of supply and a great demand for the article. I pointed out that there is in Queensland a native jute, which is really a wild hybiscus, growing over immense tracts of country, and that from it there is a chance of producing an article of commerce which can be successfully placed upon the market. I have a great deal of information on the subject.
– Is it not indigenous ?
– It is, but at present it costs 23s. a cwt. to get the fibre, whilst the price is only 20s. If the industry were developed, the price would be brought down, and the industry could be made profitable. At any rate, a bounty should meet the views of Senator Trenwith and others, who point out the necessity for a greater supply of jute than we have now. The amendment which I desired to move was upon the provision that the bounty shall be payable to growers or producers. Seeing that native jute grows in a state of nature, it is impossible to pay the bounty to the grower. Nature is the grower. If a bounty is to be paid it is necessary to amend the clause so as to enable it to be paid to those who produce fibre from the native hybiscus, just as the Bill enables the bounty to be paid to those who preserve or dry fish and fruits, and those who manufacture combed wool or tops.
– I shall be very much surprised if the Senate agrees to the motion. The schedule to this Bill received, perhaps, closer attention than any matter that has ever come before the Senate has done. Practically, we spent a day on each item in the first schedule, and yet the Govern- ment come down to the Senate and say, “The only item on which we think you have passed an opinion which is worth anything is that of goats. You are a judge of goats, but of nothing else; We ask you to swallow your opinion on every subject except that of goats.” If, after spending seventeen days on the Bill, the Senate is prepared to swallow its opinions and its votes, except in one instance, it will deserve not to be considered as a parliamentary institution. The Minister has given no reasons why any of these items should be reconsidered, except the item of coffee. In that case, the Senate is asked to assume that the President, if appealed to, would have ruled that the item could not be amended in that direction. That is, I think, placing the President in an unfair position, because he has not ruled on that item. As Senator Neild pointed out, it is questionable whether the same arguments can be applied to that case as were applied to the case in which the President ruled that we could not amend. There is a further point on which I do not think the President has given a definite ruling, and that is whether, if we cannot amend, we can request an amendment. I think that Senator Chataway has given good reasons why an alteration should be made. If we find that we cannot amend the item, it may be possible to request an amendment. At any rate, the Government have given no reason why we should reverse our vote on copra or tobacco leaf. The only reason I have heard with regard to tobacco leaf is that some senators lingered too long over their dinner, and, therefore, missed a division. Because of that occurrence, the Senate is asked, not only to reconsider that item, but also items in respect of which that excuse is not urged. I appeal to the Senate not to allow itself to be treated in that fashion. If ever a Bill received full and fair consideration this Bill did. After having recorded our opinions on the items in the schedule, it is paying a very poor compliment to the Senate when the Government come down and say that the only item on which they are prepared to accept our judgment is that of goats.
– What about all the other items?
– The Government have practically rejected our proposals.
– No; we accepted the decisions on coffee, fibres, rice, and rubber.
– The Government have accepted a modification of the item of combed wool or tops, but it is the same bounty, though expressed in a different way. Practically, Senator Keating has accepted no decision of the Committee except in regard to mohair. The wonder is that that item ever came before us. It was doomed before it was reached. This course was not taken by the Government elsewhere. When the other House struck out certain items, the vote was regarded as final, but here we are asked to reverse our votes. I shall be much surprised indeed if the Senate accepts the amendment. If the other Housethinks that we have invaded their constitutional right by making an amendment, let it acquaint us with the fact. We do not want to fight on a false constitutional issue, and the Senate will, I feel sure, be prepared to back down if it finds that if has taken up a wrong position. But the Government are not right in saying that you, sir, have ruled on that point because, so far as I can recollect, you were careful not to express an opinion when you were ruling on the other point. It has not been proved that there is any similarity between the two cases. I, therefore,urge the Senate to vote against the amendment.
– I ask you, sir, if possible, to divide the motion, because it seems evident that, whilst several senators will agree to recommit one or two items in the schedule, it is not likely that the whole Bill will be recommitted. I cannot agree with Senator Pearce with regard to the item of coffee. I admit with him that you have not yet given a ruling that it is analogous to the item of tobacco. But if it is, I think we must all agree that it is most undesirable that the Senate should send down to another place a Bill containing an item which it refused to alter because it regarded such an alteration as outside its power, while it contains an item which represents a violation of its rights. It is desirable that we should recommit the Bill with regard to the item of coffee. It maybe that you, sir, when it is recommitted, will rule that the item, as printed now, is in order, but I think Senator Pearce will agree with me that if you rule that it is not in order it is very desirable that the Senate should effect that change rather than that it should be told to do so by another place. I think it is desirable to recommit the Bill for that purpose, but I quite agree with Senator Pearce’s view with regard to the other items. Surely a Bill has never been threshed out at greater length than has this Bill. I believe it is literally true that we spent a day on each item. Surely the Government ought to ‘be satisfied with that consideration, especially as they will have another opportunity of submitting their views. If the other House does not accept our alterations, we may reconsider the position when the Bill is returned. Personally, I hope that we shall adhere to our position. Surely it is more desirable to adopt that course than to ask the Senate to turn a somersault. One could understand the Government asking us to reverse our decision, because of a debate which had taken place elsewhere, but when nothing fresh has transpired the Government take a poor course when they come here and say. “ We have no additional reasons to give, but we simply ask some of you to vote in a different direction.” It does not conduce to the dignity of the Senate to be asked to turn topsyturvy so often. For the reasons I have given, I ask Senator Keating to modify his motion for a recommittal, and allow the Senate to put itself in’ order with regard to coffee, if that ought to be done.
– I think that the President can divide the question, if a senator so requests.
– I propose to put the motion in such a way that honorable senators will be able to vote on each’ item.
– That will make it easier for us all, but I hope that Senator Keating will see the desirability of recommitting the Bill, merely for the purpose of clearing up that one point, so as to make the schedule harmonious. I hope that he will not persist in his. attempt to ask some of us to reverse our votes.
– Several honorable senators have asked ‘me to give them an opportunity .to vote again.
– I can understand honorable senators who are in a minority asking for an opportunity to convert themselves into a majority.
– The honorable senator ought to know the circumstances under which the vote was taken.
– If the Minister were, always prepared to listen to such requests the work of Parliament would be interminable. .
– The vote on the item of tobacco was taken at three minutes past 2 o’clock.
– I believe that the result will be just the same if a vote is taken again. If, however, the Ministry think that our. decision ought to be altered, let them ask the other House to make the necessary amendment, and after.wards we can take a vole on the item. I point out to the Minister that to move for a recommittal of the Bill on a Thursday night, at nearly 10 o’clock, is not quite fair to the members of the Senate. I suggest that under these circumstances he should hesitate before he asks the Senate to recommit the Bill. In this matter the hour is important, because it is not usual to ask the Senate to recommit a Bill and to reverse a decision, at 10 o’clock, when, I venture to say, not a single senator expected that the business would be brought on. I urge the Minister to withdraw the motion for the present.
– The Government have no desire to’ place honorable senators in a false position or in a difficulty in regard to particular items. In this case the usual course has been taken of asking for a reconsideration of several items, ft will be remembered that there are several features which justify such a reconsideration. Take, for instance, the item of tobacco. It has been complained by several senators that although they were in the vicinity of the building they had no opportunity of voting on that item.
– They were not here in time to vote.
– As a matter of fact some of them mistook the division bell for the assembling bell.
– The division was the result of a misapprehension. In such circumstances nothing is more usual than for the Government, especially in regard to its own measure, to see that the fullest opportunity is given to honorable senators to secure a fair vote on a particular item.
– But the Minister knows that his remarks will not apply to the item of copra.
– Perhaps not. Honorable senators know the reason why we ask for a reconsideration of the item of coffee.
– On the item of copra the voting was equal, and under the Constitution the question had to pass in the negative.
– Exactly. A request for the recommittal of aBill is usually conceded as a matter of course. Seeing that the individual items will be reconsidered on their merits, I do not think that our request is unreasonable.
– But is it fair to those who may not be here?
– If any senators can say that they have been taken by surprise I admit that there is something in that contention. But I ask honorable senators to look at this question from the stand-point of the Government. Unfortunately the whole of yesterday’s sitting and to-day’s sitting have been occupied with the consideration of an important question relating to the Senate.
– The time has not been wasted.
– The time has not been wasted, but we have not made any progress with Government business. Several senators must have been aware, towards the end of the afternoon, that there was a chance of the debate on the question of the vacancy tapering out, and that this was the next business on the notice-paper.
– No; private business came next.
– Take a vote to-morrow.
– The honorable senator should not say that. Is it usual to have a fuller attendance than we have at the present moment? Is the Government asking anything which is unreasonable? I endeavour to meet honorable senators in every reasonable way I can, but would we have been justified in asking the Senate to adjournat twenty minutes past 9 o’clock when there was other business on the noticepaper? I think that honorable senators might well agree to recommit the Bill and allow us to deal with the items.
– Strike out copra.
– No. The request in regard to coffee is a fair one. I ask honorable senators to agree to a recommittal.
– No; we shall agree to recommit the items of tobacco and coffee.
– In the circumstances I ask honorable senators to extend a generous consideration to our request.
. -I know the circumstances in connexion with the division that was taken upon the item “ Tobacco, leaf.” The question was about to be put before the suspension of the sitting for lunch on a Friday, and actually was put a few minutes after the resumption of the sitting at 2 o’clock, when some honorable senators might not have had time to get back. There is, therefore, some reason for affording them an opportunity to deal with the matter again, but if that opportunity is to be afforded to them the whole Senate should be given notice of it. An alternative course has been suggested to the Government. We are not dealing with the Bill finally now. If we send it back to another place in the form in which it now stands, and another place disagrees with what we have done, we shall have another opportunity of considering it. The Senate appears to be generally agreeable to recommitting one item. Why not recommit that one to-night, and deal with the other items to-morrow ?
Question - That the Bill be recommitted for the reconsideration of clause 2 - put. The Senate divided.
Majority ‘ … … 4
Majority …. … 6
Question so resolved in the affirmative.
Question - That the Bill be recommitted for the reconsideration of the first schedule in respect to the item “Coffee.” - resolved Senate divided.
Question so resolved in the negative.
Question - That the Bill be recommitted for the reconsideration of the first schedule in respect to the item “Coffee” - resolved in the affirmative.
Question - That the Bill be recommitted for the reconsideration of the first schedule in respect to the item “Tobacco leaf” - put. The Senate divided.
Majority … … 5
Question so resolved in the affirmative.
Question- That the Bill be recommitted for the reconsideration of the second scheduleresolved in the affirmative. .
Bill recommittedpro forma.
Bill presented and (on motion by Senator Colonel Neild) read a first time.
Motion (by Senator Colonel Neild) proposed -
That the Bill be printed and the second reading made an Order of the Day for to-morrow.
– One is at all times pleased to greet converts who are prepared to improve the conditions of the working classes.
– The honorable senator does not know whether this Bill would improve them or not. It might make them worse.
– I understand that Senator Neild is extremely anxious, in connexion with a certain measure which is now on our statute-book, that improvements shall be effected–
– The honorable senator will not be in order on the motion before the Senate in debating the Bill. The only questions he can consider are - Whether the Bill shall be printed ; and whether the second reading of the Bill shall stand an Order of the Day for tomorrow. He can, if he pleases, give reasons for or against the adoption of the course proposed in the motion.
– I was anxious to state that this Bill has a strongrelationship to a Bill which was introduced in the Seriate in the last Parliament, and in which I was successful in having embodied certain labour conditions.
– Order ! I point out to the honorable senator that he will not be in order in debating the Bill at all at the present time. He is at liberty to advance reasons pertinent to the questions as to the printing of the Bill and the date on which it shall be considered, but I cannot allow any debate on the merits of the Bill at this stage.
-I can hardly believe in the sincerity of the honorable senator who has introduced the Bill, because when I–
– Order! The honorable senator is not in order in questioning the sincerity of the honorable senator who has introduced the Bill. I have stated the scope of the debate which may takeplace on the question before the Senate, and I ask the honorable senator not to depart from the course which I have explained he isat liberty to take.
Question resolved in the affirmative.
Senate adjourned at 10.24 p.m.
Cite as: Australia, Senate, Debates, 17 October 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071017_senate_3_40/>.