3rd Parliament · 2nd Session
The President took the chair at 3 p.m., and read prayers.
– I should be glad if the Minister of Home Affairs will acquaint the Senate with the progress of the negotiations between the Commonwealth Government and the Eastern Extension Company for the purchase of their cable lines from Tasmania whenever he has any information to communicate.
– As soon as any information is available, I shall be very pleased to make an announcement to the Senate.
– I desire to ask the Vice-President of the Executive Council, without notice, whether he is yet in a position to state if under the new mail contract Brisbane will be a port of call?
– I am not in a position at the present time to make a statement, but I hope to be able to do so at. a very early date - possibly to-morrow.
– May I ask the Minister if the statement which, he has just made applies to the whole question of the mail contract, or to merely one service?
– It applies to the whole question.
– I notice that in a morning newspaper a leading article is devoted to the defence scheme of the Government, andI desireto ask the VicePresident of the Executive Council, without notice, when an announcement as to the nature of their scheme will be made to Parliament ?
– I hope that it will be made before Christmas - certainly before the Houses rise.
– I wish to ascertain from the Minister whether the scheme outlined in theAge is the scheme of the Government ?
– I have not read the article referred to.
MINISTERS laid upon the table the following papers -
Census and Statistics Act 1905. - Shipping and Oversea Migration of the Commonwealth of Australia for the year 1906. - Amended Tables relating to South Australia.
Banking Returns of the various States of the Commonwealth and New Zealand for the quarter ended 30th June, 1907.
asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow -
asked the Minister representing the Minister of Trade and Customs, upon notice -
– The answers to. the honorable senator’s questions are as follow -
asked the Minister representing the Minister of External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow -
Queensland on the 16th March, 1897, acceded to the treaty with a protocol of that date. (See Queensland Parliamentary Papers, 1899, A.5.)
The arrangement as to introduction of Japanese is contained in correspondence published as Queensland Parliamentary Paper 1901, A. 56.
– Arising out of that question’, I beg to ask the Vice-President of the Executive Council whether the Government have approached the Government of the United Kingdom with reference ,to the Commonwealth becoming a party’ to that treaty for the purpose of obtaining certain trade advantages to the Commonwealth ?
– I must’ ask my honorable friend to give notice of the question, as the matter is not within my personal knowledge-
– Before the Orders of the Day are called on, I desire to inform honorable senators that shortly the Senate is to have a distinguished visitor in the person of His Excellency the Governor of Tasmania. With their concurrence, I propose to invite His Excellency to take a seat on the dais.
Honorable Senators. - Hear, hear.
Debate resumed from 1st November (vide page 5472) on motion by Senator Best -
That this Bill be now read a second time.
– In moving the adjournment of the debate on Friday last, I took into consideration the very great importance of this Bill. There was another motive which actuated me, and that was the very good attendance on the Opposition benches when any measure of. this description is before the Senate. When the report of the Disputed Returns and Qualifications Committee was under consideration, all the members of the Opposition were” present. The great majority of them were present on Friday last, and I am very pleased to see a large array of them here to-day. I was not in a hurry to see the Bill disposed of last Friday, because I thought that probably if it were allowed to pass through all its stages then the Opposition benches might be empty until such time as another question of an extremely party character should . arise. I know that honorable senators on the other side, as well as honorable senators on this side, are actuated by the best motives.
– Oh, no ! nothing like that.
– So far as their lights lead them they are actuated by the best motives. They all want to do what they think best for their party, but they do not like to say so. There are some honorable senators, however, who really do not know what party they belong to, nor does anybody else. Viewing the matter in that light, I thought that it would be well to adjourn the debate on the second reading of this Bill until today. I know that if it had been another measure of equal importance, its second reading would not have been allowed to pass without a word’ of counsel from the leader of the Opposition, Senator Symon, or whatever other leader might have been in power at the moment. There was no attempt on the part of any one to say a word. They intended to allow the question for the second reading to pass, and the Bill to go through, no matter how important the occasion was.
– They were not concerned then about a check on hasty legislation.
– Oh, no. It was a case of rushing the Bill through as quickly as possible, and yet the members of the Opposition are vieing with each other now in the declaration that they are actuated by no party motives. How absurd such a declaration is must appear to those who have been taking notice of what has been going on in the Senate. It has already been clearly pointed out that in connexion with this matter the mind of Senator Neild was imbued with party bias at the commencement of the session. At the same time we had ample evidence that the mind of the great leader of the Opposition, Senator Symon, was also afflicted in the very same manner.
– Is Senator Symon the leader of the Opposition?
– I am taking that for granted. Any one who took sufficient interest in the unfortunate situation into which the Federal Parliament has been led as the result of some blundering in the framing of the Constitution, or in some other way, might have found on reading the South Australian Register of 27th July last, that a certain. Mr. Piper was to have appeared in a great case being heard in Adelaide and known as the Martin will case. He was at the time away in Sydney, engaged in connexion with this same unfortunate incident, and when the Judge asked when he would be present, Senator Symon answered that he did not know, but that Mr. Piper was in Sydney, and he hoped he would come back crowned with triumph.
– Would the honorable senator not say the same thing of a rival competitor?
– Exactly, because I am a party man, and I do not deny it.
– What has that to do with the case?
– Senator McGregor admits that he is dealing with this measure in a party spirit?
– Certainly, I am looking at the question from a party point of view.
– Was not this Bill introduced in accordance with the unanimous wishof the Senate?
– I am such a party man that I cannot help viewing the matter from a party point of view. I conscientiously feel that other honorable senators are as honest as I am, only they are not so outspoken. They believe as firmly as I’ do in conserving the interests of their party, and are just as ready to advance those interests by fair and legitimate means I am not accusing honorable senators opposite of thinking otherwise.
– What is the honorable senator accusing them of?
– Am I accusing them of honesty or dishonesty?
– We wish to know.
– I am accusing them of thinking one thing and saying another. When they say that they are not actuated by party motives, how is it that they are always present on an occasion of this kind, and that in the majority of instances when other matters of quite as much importance to the country at large are before the Senate they are absent?
– Why charge Senator Mulcahy with party bias when he has no party ?
– It appears to me that Senator Mulcahy is fitting a cap on himself and if he likes to pull it tightly over his eyes he is welcome to do so. I am not accusing the honorable senator any more than any one else. In fact, it has been a puzzle to me for many years to know to what party Senator Mulcahy belongs.
– That will continue to puzzle the honorable senator.
– I dare say that it haspuzzled others as well as myself. In connexion with the Bill at present before the Senate, I should like every honorable senator to be absolutely outspoken that we may know where we are. We should not be invited to believe that honorable senators do not feel a deeper interest in this measure than they do in many other measures that come before the Senate. Whenever that sort of thing is attempted, I shall always ask how it is that honorable senators manage to be present on such occasions. Looking at the whole position from the date of the general election in 1906, I am forced to the conclusion that it is not a Bill to amend the Electoral Act in order to deal with this matter, but a Bill to amend the Constitution, that we ought to have before us. How has the difficulty arisen? An Electoral Act has been passed under which every conceivable contingency, so far as ordinary electionsare concerned, was dealt with, and powers were given to a Court of Disputed Returns to deal with matters arising under it. ‘ When the Electoral Bill was before the Senate, the only thing we omitted to do was to give the Court of Disputed Returns the power to deal with elections under section 15 of the Constitution. That brings me to the Constitution itself, and although I said very little when the matter was before the Senate in connexion with the report presented by the Committee of Disputed Returns and Qualifications, I had a good deal in my mind. It was tiresome to listen to the protestations of honorable senators with respect to their party attitude and their desire to get rid of the whole question and send it away from Parliament altogether for decision. I believe that in this Bill the Government are making an honest attempt to do that; but the Bill has a retrospective effect that I do not at all approve of. Instead of passing proposed legislation for an amendment of the Electoral Act, we should be amending the Constitution in order to make section 15 so clear that he who runs might read.
– And to confirm a disputed seat.
– I contend that the seat was legally filled under section 15 of the Constitution.
– But the Committee of Disputed Returns and Qualifications decided differently.
– If Senator Millen, by his interjection, invites me to make good my contention I will do so. The question has been. already argued, and I suppose it will be argued hundreds of times again, until the Constitution is made more perfect than it is at the present time. Section 7 of the Constitution provides for the representation of the States, and that there shall be six senators for each State. Section 9 gives the Parliament power to direct how senators are to be elected, but so that the method shall be uniform throughout the Commonwealth. Under the Constitution and the legislation of this Parliament, the States have power to do certain things. Under section 9 they can fix the date for the holding of an election, and they can do a great many things of which we have very little idea until we come to consider the matter closely. We do not know at what time, under the operation of that section, a conflict may arise between the States and the Commonwealth. That is one reason why I say that something should be done to amend the Constitution, in order to moke the power of the Commonwealth absolute, or to provide some arrangement which would prevent friction between the States and the Commonwealth in connexion with the election of senators. Then we come to the section out of which all the difficulty has arisen - section 15. It provides for casual or extraordinary elections, elections held out of the ordinary course of events, and which do not take place periodically. I hold that every election that is not held at the proper time comes under section 15. If it does not, the Constitution should be amended to repeal that section, or to make every election for the Senate or the House of Representatives an election by the whole people. Why was section 15 embodied in the Constitution? It was because the members of the Federal Convention, having adopted section 7, thought it would be a very expensive proceeding if one or two senators had to be elected by a whole State. They therefore adopted a different plan to deal with such elections, which took shape in section 15. I should like to ask whether in the present circumstances there would be any greater or less expense than if the right man - the man who really was elected and was declared elected - had taken his seat and then died? Under section 15, the Parliament of South Australia would have had to fill the vacancy in the manner therein prescribed. No one can doubt that for a moment. I say emphatically that on the 1 2th December last somebody was elected, although the seat was afterwards declared void. It was not the election that was doubted, it was who was elected. It was either Mr. Vardon or Mr. Crosby. Either of those gentlemen was elected. There was no tie, and if there had been a tie the difficulty could not have been overcome in that way. I’ declare that Mr. Crosby was elected. He received a majority of the votes.
– Nothing of the kind.
– The honorable senator is very positive about some things. I will say, then, that my party bias leads me to believe that Mr. Crosby was elected, and the honorable senator’s party bias leads him to- believe that some one else was elected.
– It is not my party bias ; the Judge said he was not elected.
– Let us take all the circumstances into consideration and see who is most justified ,in the opinion he holds. The election took place on the 12th December. The counting of the ballot was completed, and it was found “that Mr. Crosby had a majority of votes. No one can deny that. I wish honorable senators to believe me when I say that I have no personal animosity, antipathy, or even dislike to Mr. Vardon. I consider him a straightforward, honest gentleman, and I have always been on most friendly terms with him. But ‘in a mysterious manner information seems to have come from somewhere to somebody. There is so much mystery about the matter that it is impossible to thoroughly understand it. Mr. Vardon himself repudiated the charge that he was the prime mover. He said he wa.s forced to the position of asking for a recount. But on his application a recount was granted. Strange to say, there was only one polling place the votes for which were asked to be recounted. That was in Hindmarsh. It was found that the result of the recount entirely upset all former calculations. At this time the poor man who had really been elected was lying on his death-bed. No news of what had taken place was conveyed to him. He did not even know that there was a dispute about the election. But a friend took up the case. It was brought before the .Court of Disputed Returns, when, lo and behold ! one quarter of the ballot-papers of South Australia were found to have disappeared. It is a well-known fact that the ballotpapers in that particular district could not be said to be in favour of the candidatesput forward by the Labour Party, but there was certain knowledge that many of the ballot-papers in certain polling booths in that district were set aside because the returning officers neglected to initial them, or initialed them on the wrong side. It was said that the ballot-papers which disappeared had been burnt. The returning officer responsible was taken to the Court, and was, I believe, fined ;£io for burning them. But the mysterious workings went on. The Parliament of South Australia then took it upon itself to return a representative for the State. That representative is here to-day, and I believe that he will remain here, because I think that the people of South Australia, even if there were a fresh election, would return him again. But from my reading of the Constitution :he has no right to be required to submit to a fresh election. A great uproar was raised in certain quarters, and the case was brought before the High Court again. An application was made for a mandamus. Every confidence was expressed as to the result. Even Senator Symon himself expected Mr. Piper to come back to Adelaide crowned with laurels.
– Why should I not?
– Certainly, as a good party man the honorable senator had a right to expect Mr. Piper to triumph.
– Would not the honorable senator wish that for an opponent of his?
– Does the honorable senator wish us to believe that he was talking satirically ?
– I always wish mv opponents success.
– The unselfishness of the honorable senator is proverbial in South Australia, and is well known all over Australia.
– I am magnanimous.
– The honorable senator is magnanimous towards his enemies when he has them under his feet. As a South Australian, I have a certain pride in him for his ability and dexterity. I admire the way in which he can work people to act upon his own lines. He has been able to work Senator Macfarlane and Senator Walker in- that way - honest gentlemen who are prepared to swear by everything which the honorable senator does. But while these proceedings were going on the ballot-papers supposed to be burnt were found. They were not burnt at all. They are in existence now. I have not the least doubt that if it were within the power of the Senate or the Court of Disputed Returns to have the papers investigated, it would be found that Mr. Crosby was duly elected.
– Why did not the honorable senator move to that effect?
– Why did not the honorable senator stay in Queensland, where it is . warm ? How could I move to that effect? I did not find the ballot-papers. There is so much mystery connected with the whole affair that I am like Doubting Thomas ; even if I had the papers -in my hands, with a witness or two present to certify to their correctness, I should have some difficulty in believing in them. But I can easily imagine that if any other gentleman thanSenator O’Loghlin had been here filling the seat he occupies to-day scarcely aword would have been said about what occurred. Everything would have been hushed up. But ‘Senator O’Loghlin is here, and I hope that he will remain here until the proper time for an election conies. Now I wish to return to section 15 of the Constitution, and to show that the members of the Convention, in framing it, although they might have been a little bit vague in their ideas, had a very good intention. Their intention was in the first place to save money to the States, and in the second place to protect the interests’ of the electors. How did they do it? In one part of section 15 it is provided that if a vacancy occurs - and it does not say how that vacancy is to occur - the Parliament of the State, if then in session, is collectively to choose a person to represent the State, who is to hold office until the next election. It does not matter when that election may happen. Then he is to go to the people, even if he has been a member of the Senate for only three weeks. The people at the first opportunity are to be able to express their approvalor disapproval of the selection made by the Parliament of the State. But if the State Parliament is not sitting the Governor in Council may nominate or select somebody to represent that State. Till when? Till the Parliament meets, or until an election takes place, whichever first happens. This shows that the intention of the members of the Convention was to save the expense of a Senate election under extraordinary circumstances, and to protect the interests of the people by giving them the very first opportunity to ratify or confirm what had been done by the Governor in Council or by Parliament. I hold that everything of that kind was done and complied with so far as the State of South Australiawas concerned. The Governor of the State was notified that a vacancy had occurred. He took the only action that he could take under the circumstances, and the Parliament of that State took the only action they could take. They were perfectly justified in what they did. Was not that an extraordinary election?
– Was it any election at all ?
– It was. The honorable senator cannot deny that somebody was elected.
– The Judge says that there was no election.
– When from legal lips comes “ Null and void “ the sun must stand still, and the moon rest in her place.
– This Parliament has said by an Act that the decision of the Judge is to be final.
– But if the President of the Court of Disputed Returns had thought that the election was null and void in the same manner as it would be null and void in respect to an election for the House of Representatives, he would have declared so. I wish to direct the attention of honorable senators to what took place in Victoria when there was a dispute in reference to the Echuca election. On that occasion the President of the Court of Disputed Returns - the very same Judge - declared the election null and void, and decided that there must be a fresh popular election.
– No, he could not.
– He could not do anything else, because the Constitution, the Electoral Act, and the whole of the other Commonwealth machinery dealing with the matter, so provided. But it did not so provide in connexion with a Senate election.
– Yes, it did ; exactly the same.
– The honorable senator is always making such assertions as “Yes, it did” or “No, it did not.” There is no argument in that kind of statement. I hope that when he has an opportunity he will rise in has place, and take four or five hours to explain what he” means. I can listen to him for ages. .
– It will not take five minutes.
– I have known the honorable senator to speak longer on corsets. He can make an eloquent speech on almost anything, and I hope that he will make a very eloquent speech on- this subject. I want him to explain thoroughly the meaning of section 15 of the Constitution. I will proceed a’ little further with my argument upon the same section. I am not like the honorable senator, infallible. I may make mistakes sometimes.
– We quite recognise that !
– I am glad that the honorable senator does recognise it. because I shall now have his sympathy when I need it. The Constitution sets out, to some extent, what the circumstances are that will bring about a casual election for the Senate. If honorable senators turn to section 19 of the Constitution, they will find that under it a senator has power to resign. Senator O’Loghlin could send a letter to the President or to the GovernorGeneral resigning his seat. Possibly that resignation would be accepted. I do not see how the Governor-General or the President could do other than accept it. The resignation would take effect. Then section 20 provides that if a senator stays away from ‘the Senate two months without leave of absence his seat shall become vacant. That would cause a by-election if it happened three months after a general election. If we turn to sections 44 and 45 we find that they provide for the disqualification of senators and members of the House of Representatives. Under those sections, a number of things may happen that may render a seat vacant, and, in accordance with which a casual election may take place. I heard Senator St. Ledger declare in this chamber, with all the wisdom of a Solon, and the emphatic denunciation of a Draco, that everything was provided for in the Constitution.
– The honorable senator is not listening.
– He ought to listen, because, schoolmaster and all as he is, he has to learn a lot, and I dare say that he will learn a few things even in the Senate. Everything is not provided for in the Constitution. There’ is not a syllable in it about the death of a senator. Collectively speaking, senators may die as often as they like, but the contingency is not mentioned in the Constitution.
– The death of a senator would cause a casual vacancy.
– Certainly it would. But Senator St. Ledger, when arguing this question on a previous occasion, said that sections 19, 20, 44, and 45 of the Constitution provided for everything. Then he declared that this particular instance- - the declaring of a seat vacant bv the Court of Disputed Returns - was outside of the Constitution, . because it was not specifically mentioned. If the honorable senator was right in that argument, no casual vacancy could take place, and no casual election could follow, after the death of a senator, as that contingency is also not mentioned in the Constitution.
The vagueness and ambiguity of section 15 of the Constitution have been the cause of the whole trouble. Instead of endeavoring to patch up the Constitution by amending the Electoral Act in a retrospective manner, we should do all that we possibly can to amend the Constitution so that there would be no necessity to refer this or any future case to the Court of Disputed -Returns or any other body.
– Is it not the duty of the Court rather than of this Chamber to interpret the Constitution ?
– It is now, but it was not about a fortnight ago. A fortnight ago, so far as this question was concerned, the entire power lay with the Senate. Clause 2 of this Bill takes that power away from the Senate.
– Senator Symon said that the Senate was the right body.
– Everybody knows that. Senator Millen knows it also. I believe that the Senate has the power still, but the purpose of the Bill is to remove the power from the Senate to the Court of Disputed Returns or the High Court. I admit that the High Court is the proper authority to interpret the Constitution.
– That is what we want to know. ‘
– The honorable senator will find if he reads section 47 of the Constitution that the Senate had, and still has, the power to decide .questions of the qualifications of senators. The Senate will still have that power until this Bill becomes an Act, if it ever does. Where we find ambiguities in the Constitution, or any difficulty in interpreting any section of it, it is the duty of Parliament and of the people of Australia to amend the Constitution so as to make it clear, in order that there may be no necessity for the High Court or any other body to interpret it. Of course, under certain circumstances, unavoidable difficulties may arise: Then, if the difficulty is one that can be removed by the amendment of the Constitution, the proper course is to amend the Constitution. Senator Symon agrees with me in that, because not very long ago, when a certain Bill was before the Senate, he declared emphatically that, instead -of passing legislation of that description or this description, it was the duty of the Senate, the House of Representatives, and the people to amend the Constitution.
– I never said so as to matters of this description.
– What is the difference? The Bill to which I refer was the Judiciary Bill. I agreed with the honorable senator on that occasion that the proper course to take was to amend the Constitution. In fact, the honorable senator said some very nice things about me because I agreed with him. I hope that he will do the same this time because I disagree with him. I know that the honorable senator is able, and that he is magnanimous enough to an opponent to be willing–
– Does the honorable senator charge Senator Symon with being inconsistent in disagreeing with him this time?
– I understand from an interjection that the honorable senator is not entirely in accord with my views on this Bill or on section 15 of the Constitution.
– Is the honorable senator going to repudiate the unanimous resolution of the Senate to refer this matter to the High Court?
– I do not think the resolution was unanimous.
– The honorable senator did not call for a division.
– I did not. There seemed to be such an anxiety on the part of some honorable senators to get rid of the question that I was quite willing to let it go without a division.
– Does the honorable senator think that that was the motive of Senator Turley and Senator de Largie ?
– I do not. I think that they were for some time under the subtle influence of the honorable senator. I have a very good idea what that influence is. I dare say if I had been associated with the honorable senator for the same length of time I should have had very great difficulty in disagreeing with him. But I think he would give me credit for trying all I knew to disagree with him. The Senate has decided that in future the Court of Disputed Returns shall have the power to deal exclusively not only with the elections or qualifications of members of the House of Representatives, but also with those of senators, even so far as to deal with the qualifications of a senator chosen under section 15 of the Constitution. That is what I object to. I object to patching up the Constitution by passing this kind of legislation, when we could make everything right by amending the Constitution.
– We only want an interpretation of it by the Court.
– Cannot the honorable senator interpret it for himself? If it is not clear enough for the honorable senator, or even for the humblest of his constituents, to interpret, it ought to be amended so that they can interpret it. It is not fair for honorable senators to expect the electors of Australia to understand the Constitution, when they do not understand it themselves, and have to get the High Court to interpret it.
– That is what the High Court is for.
– Then it is also the duty of Parliament and the people of Australia, in the interests of themselves and also of the High Court, to make the Constitution as easy of interpretation as possible. Senator Dobson and other honorable senators on the opposite side, particularly Senator St. Ledger, with his great legal knowledge, are always endeavouring to make ordinary Bills so clear that the Courts will have no difficulty in interpreting or understanding them. They declare that that is their motive, at any rate, whether it is a fact or not. If they say so with regard to simple Bills, why should not they believe so in connexion with the Constitution, which is the instrument of Government of the whole Commonwealth? When they find any difficulty in its interpretation they ought to do everything possible to make it clear. Clause 2 of this Bill would satisfy every honorable senator opposite. They have very little interest in anything else in the Bill. I believe honestly and sincerely that if clause 2 were not in the Bill, if this trouble had never arisen, if Senator O’Loghlin was not here, and if the Bill had been introduced merely to amend the Electoral Act so that in the future no difficulty of this kind could arise, honorable senators opposite would be perfectly indifferent about it. But they desire clause 2. They wish to settle a matter about which they are not satisfied at present.
– Is it not the Government that wants to settle it?
– The Government have been forced into this position.
– By the Senate.
– It was not very difficult to force them.
– It was a unanimous vote.
– We know how unanimous votes are taken. As nobody called for a division it is claimed that the vote was unanimous.
– Nobody objected.
– Iheard a great many honorable senators objecting.
– I objected, but honorable senators on the other side did not insist upon a division.
– I only wish that Senator Symon had been here when Senator Pearce was objecting.
– I wish I had. A good many things were said in my absence that would not have been said if I had been here.
– I should have said them if the honorable senator had been present.
– Senator Symon has no right to say of any honorable senator what he has said of Senator Pearce. He ought to withdraw. If he chooses to go away after making all sorts of statements
– Is it right for Senator Symon to imply that Senator Pearce said in his absence something that he would not have said if he had been present?
– I do not quite understand Senator Symon to imply what Senator Needham states, although he’ did make a statement in that direction. The passing of charges of this kind across the chamber is most disorderly, and always happens, as I have pointed out before, through the frequency of interruptions. I ask honorable senators to endeavour not to interrupt the speaker so much.
– I think, sir, I was quite right in stating that Senator Symon had no right to say that when he was absent Senator Pearce made remarks which he would not have made had he been present.
– The honorable senator invited the observation.
– I do not care whether I invited it or not.
– Order !
– I rise to order.
– I ask the honorable senator not to pursue that line of argument. The interjection has been complained of and he should allow the matter to drop.
– Senator Symon said that Senator McGregor invited the observation.
– Order !
– I ask you, sir, to request Senator Symon to withdraw the remark, because it is a reflection on Senator McGregor.
– Will the honorable senator resume his seat?
– I have pointed out that the remark of Senator McGregor was made in consequence of the interjection, and I do not see that at the present time there is anything which I can call upon Senator Symon to withdraw.
– I ask you, sir–
– Order !
– I ask you, sir, to request Senator Symon to withdraw the remark.
– I ask the honorable senator to accept the ruling of the Chair.
– I cannot allow the matter to pass without putting the blame on Senator Symon.
– Order ! I have requested the honorable senator not to pursue that topic. It has been sufficiently ventilated, and I ask him to address his remarks to the question before the Senate.
– I do not think, sir, it is right that I should be asked to refrain from making my speech in the way which I have mapped out. Senator Symon said that no objection was taken, and I replied that Senator Pearce did take objection. It was Senator Symon who drew forth thatremark–
– That is. not the point.
– And when I said that he had no right to say that, you ruled-
– Order ! I have pointed out to the honorable senator that the charge and countercharge should not be discussed any further. I recognise that he has the right to deliver his speech in his own way, so long as he conforms to the Standing Orders. Of course, he is entitled to comment on the statement that nobody had objected. I had no wish to prevent him from making a comment of that kind.
– That is all I was doing, sir. I was telling Senator Symon and other senators that objections were taken, . and that it would have been a good thing if some of them had been here when Senator Pearce was speaking. They would have known that very substantial objections were raised to the whole question, and particularly to the report, which was torn to pieces in an able manner. That is all I have to say about that matter. The object of clause 2 of this Bill is to take away from the Senate the power which it possesses under section 47 of the Constitution, not in respect of anything which may happen, but in respect of something which has happened.
– And which is still undecided.
– It does not matter whether it is undecided or not. . On an invitation from the State Governor, which, of course, was based upon an intimation from you, sir, that a vacancy had occurred in its representation, the State Parliament selected Senator O’Loghlin. Everything was done in order there, and the difficulty arose here. When the matter came before the Disputed Returns and Qualifications Committee of the Senate a new aspect arose, and to-day we are asked to enact retrospective legislation.
– The honorable senator is continually saying “No.” I wish he would say “ Yes,” just by way of variation.
– What the Senate decided was that the case should be referred to the Court of Disputed Returns.
– I maintain that when it is proposed to enact retrospective legislation we ought to scrutinize the Bill very closely, and ask ourselves whether there is any reason to justify its enactment. Have the people of South Australia raised any outcry? Have there been numerously signed petitions from all parts of the State calling upon Senator O’Loghlin to resign his seat? Has the State Parliament done anything which would justify any honorable senator in taking objection to the presence of Senator. O’Loghlin? Has the State Governor done anything of that kind ? To my mind, the people of the State are thoroughly satisfied.
– Why does not the honorable senator allow them to say so?
– Because they do not want to incur an expenditure of £4,000 or , £5,000. I am prepared to vote for a
Bill to amend the Constitution by abolishing the provision in section 15, and allowing every vacancy in the Senate to be filled by the people of the State concerned. Is the honorable senator prepared to support a Bill for that purpose?
– Yes, at any time.
– I hope that the honorable senator will when he gets an opportunity, and I trust that an opportunity will arise very soon. But the point to be considered now is the expense which would be entailed upon the people of South Australia. As the members of its Parliament were elected by a majority of the people, cannot the inference be justly drawn that they would be satisfied with the selection of Senator O’Loghlin?I am sure that if a similar difficulty occurred in Victoria or New South Wales, the majority of the people of the State would be perfectly satisfied with the selection made by their own Parliament. We raised no cry here when senators were chosen in that way. The late Mr. Robert Reid was chosen by the Parliament of Victoria, Dr. Mackellar was chosen by the Parliament of New South Wales, and Mr. Saunders was chosen by the Parliament of Western Australia. Nobody heard a word of objection raised to the choice of those gentlemen. The selection was made constitutionally then, and the selection of Senator O’Loghlin was accomplished just as constitutionally, only that honorable senators on the other side are trying to find loop-holes.
– In those three cases there was no declaration of a null and void election.
– The object of clause 2 of this Bill is to bring the selection of Senator O’Loghlin before the Court of Disputed Returns. I have not the least hesitation in saying that when it is so referred, the Court will decide that the Parliament of South Australia was quite justified in doing what it did.
– Why not let it go on to the Court?
– Why should we be so persistent in doing things that cause so much trouble? Are not the feelings of Senator O’Loghlin or Mr. Vardon to be considered? Are only party instincts to govern every aspect of this question ?
– The honorable senator said so.
– The Opposition have shown the strongest party feeling in this matter. I do not deny that I have party feeling, but I am declaring that the Opposition have stronger party feeling, and it is they who are making all the bother. I hold that the personal convenience of Senator O’Loghlin and Mr. Vardon should be considered. Why, sir, the legal profession are driving Mr. Vardon nearly crazy by sending him, first to the Court of Disputed Returns, . secondly to the High Court for a mandamus, and now to the Court of Disputed Returns. The poor man can hardly get a wink of sleep, and it is all owing to the intervention of lawyers. I wish that in this instance there were no lawyers in the case. ‘ I object to the retrospective character of clause 2 of the Bill, but I have not the slightest objection to the provision for the removal of any future difficulty of the kind from the arena of party politics. The position is very simple, with the exception of the interpretation of section 15 of the Constitution.
– Does not the honorable senator say that it is clear?
– From my point of view, it is clear.
– Why does the honorable senator want to amend it ?
– I want to amend the section so that the honorable senator will be satisfied.
– It is quite clear to me also.
– I want to amend the section so that the honorable senator will understand it. I interpret the section to mean that every election which is out of the ordinary course of events - even a vacancy caused by death, which is not mentioned in the Constitution - is a casual election. The honorable senator does not understand it in that way.
– And the mere fact that there is a doubt constitutes a reason for sending the case to the Court of Disputed Returns.
– The fact that there is a doubt may justify that, but it would justify to ‘ a fair greater extent an amendment of the Constitution so . as to remove . the doubt, when there would be no necessity to refer to the Court of Disputed Returns. Probably, under existing circumstances, we shall be compelled to give a silent vote, as we had to do on a motion to adopt the report of that generous body, the Disputed Returns and Qualifications Committee. We could not do anything else then, and we may not be able to do anything else now. At the same time, I have a right to object to the enactment of retrospective legislation. In the near future, I may hear some honorable senators on the other side objecting to a proposal of that kind, and very probably I will taunt them with their inconsistency. I hope that they will not turn round and say, “ No, no,” or “ Yes, yes “ to anything I may then say. The remaining clauses of the Bill deal with future elections and the amendment of the Electoral Act in certain respects. The proposed amendments are all very simple, and will, I believe, be very effective. The first amendment is only of a trifling character. It is to bring section 2 into conformity with the other amendments in division xvi., which is amended from section 192 to section 206. I think honorable senators will find that they can all agree to the proposed amendments of those sections. After section 206, there are six machinery amendments proposed by the Government, and I believe that, with very little variation, they may pass. I shall conclude by stating that, although I object strongly to the principle embodied in clause 2 of this Bill, yet I shall willingly support the remaining provisions with very little modification. At the same time, I should have much preferred if the Government had brought in a Bill to amend the Constitution in the direction I have indicated.
Senator Sir JOSIAH SYMON (South Australia) [4.15]. - I wish to . say very little at this stage of the Bill. I shall certainly not follow Senator McGregor into all the ramifications and irrelevancies with which he has entertained the Senate upon what is really a very simple issue and an issue in. conformity with the resolution passed unanimously - at least in the sense that there was no division called for - by the Senate on a very recent date. Nor do I intend to follow the efforts of the honorable senator to make this Bill a serious party question. Undoubtedly, if it became a party question, it would be largely, if not entirely, due to the vehement efforts Senator McGregor has made in that direction. I had thought that we had to some extent escaped from the atmosphere of party. It is only the other day that I moved the adoption of the report of the Committeee of Disputed Returns and Qualifications on the question as to whether Senator O’Loghlin is not a stranger in this Chamber. At that time I and the other members of the Committee, with, perhaps, two exceptions, were accused of being influenced by party bias, and everything else that is mischievous in the direction of party, in spite of my personal protest and my strong appeal to the Senate to settle the question itself. Honorable senators will recollect that I appealed to them as a Court.
– And then cleared away
– Why should the honorable senator make an im-. pertinent and irrelevant interjection like that?
– Order !
– The honorable senator’s vulgarity should be restrained.
– Order ! I point out to the honorable senator that the interjection does not justify the . statement he has made with regard to Senator McGregor, and I ask him not to repeat it.
– I object to being told that I am impertinent and vulgar.
– Not only shall I not repeat the remark, but I withdraw it. Still, I think Senator McGregor should not have made an interjection of that character.
– I was never vulgar enough to make a similar remark to the honorable senator.
– I withdraw the remark, but I think that the honorable senator should not have made an interjection of that kind, when there was no division taken either on the motion for the adoption of the report or on the amendment moved with a view to refer the question to the High Court. I felt tempted to resent it, and I am sorry that I did so in so heated a fashion.
– It was not a very generous interjection.
– I felt that it was not quite a fair interjection to make, when there was no occasion for my presence, seeing that no division took place. When imputations of party feeling and bias were made at the stage at which I desired the report of the Committee of Disputed Returns and Qualifications to be adopted by the Senate, and after I had counselled the Senate as emphatically as I could to decide the matter for itself with the full authority which the Constitution gives it, I feel that it is an extraordinary thing that now when the course which I opposed and protested against is being -adopted at the instance of the Government, and not of honorable senators on this side, an endeavour should be made by Senator McGregor to inflame party feeling in connexion with it. We were accused of party feeling when opposing the course now proposed. We are accused of party feeling when we support it. That is all I desire to say on that point. On another point to which the honorable senator alluded I think he was equally unjust, because, in order to bolster up his insinuation of party feeling on this side - and I hope that I may use that expression - he said that honorable senators on this side mustered in their places in numbers upon this question, although they did not do so on other occasions. I am exceedingly sorry, but it does not happen to be so to-day, and did not happen to be so on Friday last, when Senator McGregor, acting quite within his rights, moved the adjournment of the debate. There was no occasion for the honorable senator to make an elaborate or abject apology for doing so. I felt then, as I feel now, that there was no reason for postponing the second . reading of the Bill, and I shall tell honorable senators why. It was because this Bill was introduced by the Government whom my honorable friends opposite support, and whom they supported the other day in refusing to allow the Senate, on my motion, to adopt, the report of the Committee of Disputed Returns and Qualifications. The Bill is introduced’ by the Government in conformity with, and in obedience to, that resolution of the Senate; every word in clause 2 .of the measure is in conformity with it, and framed with a view of carrying it out. I felt that in carrying that resolution the Senate had practically agreed to the second reading of this Bill. We may discuss its provisions in Committee, but the principle of the Bill has already been affirmed. I say that without any fear of contradiction. What is the position? In connexion with this unfortunate question everybody concerned is more or less entitled to our sympathy, but those most entitled to our sympathy are the people of South Australia, who have never had an opportunity to elect, and have not elected, their third senator. It is all very well to make a pathetic appeal about Senator O’Loghlin. He is entitled to every courtesy, just as Mr. Vardon is; but the people whose interests we have to protect in dealing with this question are the people of South Australia.
– The .people of the other States might ‘be similarly circumstanced.
– Quite so; but I wish to keep to this concrete, case, and I say that in connexion with this question the people whom we are bound to protect aire the people of South Australia, who attempted on the 12th December, 1906, to elect a third senator for their State, and who are declared not to have succeeded in that attempt. How can my honorable friends opposite go to the people of South Australia and say that they trust them, and that it is always right ko allow them to exercise their franchise if they resist the present proposal ? The position in this matter is that there was no election on the 12th December, as the Judge declared that it was a void election, and the people of South Australia had not had ah opportunity to exercise their franchise. That is the situation, and if ever I made an effort in’ any direction ki- my life that is the situation which I shall take care that the people of South Australia shall understand, and I shall further take care that if they are deprived of the exercise of their franchise they shall know how it is and by whom they have been so deprived. The question having been raised as to whether the people of South Australia elected their senator under clause 7 of the Constitution, and as to whether the gentleman sent here by the Parliament of the State is a stranger in the Senate - not an usurper in the sense that his presence here is due to himself, but . in the sense that he is standing in the shoes which can ‘only be filled by the people of the State. That question having been raised, and the Senate having been apprised of it by means of a petition - and it did not matter whose petition - it was referred to the Committee of. Disputed Returns and Qualifications constituted by the Senate. That tribunal was trusted by the Senate to make a report. I do not condescend to repudiate the imputations made upon the work of the Committee as to party feeling, bias, or anything of the kind.- I say that the members of that Committee absolutely cast from their minds everything in the nature of party feeling or bias in their investigation and consideration of the question. I say that of all the members of the
Committee. We may have failed, and honorable senators may make what imputations they please, and may charge me with bias as much as they like.
– Hear, hear.
– I disregard the interjection of the honorable senator. There is no member of the Committee who will not say that throughout the whole of the proceedings I was in every respect most fair, most careful, and most considerate of every view of the question, and that I had every line and every syllable of the report considered, not at one, two, or three, but at four different meetings of the Committee, so that there should be no possible opportunity for any one to say that every aspect of the matter was not considered in the fairest and amplest manner.
– I happened to be present at one of the meetings of the Committee.
-The wonder is that the Committee did not stand more steadfastly by their report.
– Could I. have stood more steadfastly by it than I did?
– The honorable senator might have challenged the Senate by a vote.
– Did I not challenge the Senate?
– No ; the honorable senator left.
– Where was the evidence of party feeling if honorable senators on this side were not present?
– Was that standing steadfastly by the report?
– I stood by the report. -
– No, the honorable senator ran away from it.
– The honorable senator is making a disgraceful imputation.
– The records are there.
– It is a shameful and unworthy imputation.
– It is a fact.
– It is not a fact, and Senator Pearce is joining in what is a disgraceful and unworthy imputation. If I had been here, of what use would it have been to call for a division on the motion for the adoption of the report when honorable senators on the other side, and the Government, as they were quite entitled to do, had made up their minds that they would not adopt the report, but would take a course which honorable senators are now seeking to repudiate? What is the gist of the long and vehement rigmarole we have had from Senator McGregor? Is it not a repudiation of what the Senate did the other day? Is not that what Senator McGregor desires? When he refers to clause 2 of the Bill, and says that he objects to it as a retrospective clause, what is that but inviting the Senate, in view of what took place, to pursue a path which, if it be pursued, can only be described as a path of political dishonour? It would place an indelible stain upon the Senate if, in the face of the resolution which was adopted, we refused to send this case to the High Court for decision. What are the facts? The Committee of Disputed Returns and Qualifications entered upon their investigation. They brought down a report, on which the Government seem to have felt that they had to adopt an attitude which it was not for me to question. The time has gone by now for debating the report from the point of view of one side or the other. The Government adopted a course which thev were perfectly entitled to take if they ‘thought fit. That report, when presented, had been agreed to unanimously. The minutes of the proceedings of the Committee are before the Senate, and they show that no amendment was moved, no dissent, no question, and no qualification.
– Would the honorable senator, on the same grounds,” assume that the Senate was unanimously against- His motion, seeing that no vote was taken on that?
– I am not dealing with that matter now. I shall deal with it presently. I declare, as Chairman of the Committee of Disputed Returns and Qualifications, and with the minutes of its proceedings before the Senate, that there was in that Committee absolute unanimity with regard to the conclusions which were arrived at. I do not say that a man is not entitled to change his mind. I do not say that when he has arrived at a conclusion he is not entitled to reconsider it ; but I do say that that report was, as a report, unanimous, and so it appears on the records of the Senate. I am sure that my honorable friends, Senators de Largie and Turley, will say, as Senator de Largie said in seconding a vote of thanks to me as Chairman of the Committee, that I did everything that was fair, and that it would have been impossible to have shown greater impartiality as to every view of the question than I showed during the conduct of the investigation by that Committee. My honorable friends, Senator Turley and Senator de Largie, felt - if, now that the report is a thing of the past, I may use an expression that Senator Turley employed - that it was impossible to dissent from the conclusion of the Committee; but, as I put it to them, they would feel happier if some one else decided the question instead of ourselves. Accordingly they suggested that there should be an addendum to the report, to the effect that the petition should be dealt with by the High Court. They therefore moved what subsequently appeared as an addendum. As some observations have been made with regard to that addendum, may I say that when it was moved I knew perfectly well what the Standing Orders were. I pointed out that it Avas n6t a dissent from the report of the Committee, that it was not a protest against the report, and that it really ought not to appear in the report at all. But I also said that I thought it would be only fair as those honorable senators entertained the view that the question was one that should be referred for decision to the High Court, that that view should appear upon the forefront of the document.
– Who christened it an addendum?
– It was christened an addendum in the Committee. It was not intended to be part of the report at all, but, as a matter of fairness - because of an excessive desire that everything bearing upon the report should be published - the addendum was attached to the report. When I moved the adoption of the report, I commended it as best I could to the acceptance of the Senate. I entered at some length into my reasons for thinking that the matter should not be sent to the High Court. I then hoped that the Senate would deal with it. I said that if it had been intended that it should be referred to the High Court, I thought that steps for that purpose should have been taken when the petition was first presented to the Senate, instead of the matter being referred to the Committee at all. But the Senate, in its wisdom, took the other view, and adopted the suggestion of the addendum, namely, that as the question of the validity of Senator O’Loghlin’s right to sit in this Senate involved a matter of constitutional law, the transcending question of whether or not the people of South Australia had chosen their third senator, it was proper that the whole matter should be dealt with- by the High Court. Accordingly, Senator Turley, one of the signatories to the addendum, in fulfilment of it, and in the best of faith - he would have been a recreant to his own addendum if he had not done it - moved the amendment which -was subsequently carried to the motion for the adoption of the report.
– He moved that after the report was rejected.
– The report was rejected first.
– Certain words were left out, and then Senator Turley moved his amendment. It was understood in the Senate that such an amendment was to be moved. I say unhesitatingly that Senator Turley, in moving that amendment, and Senator de Largie, in intimating that he had intended to move such an amendment, but could not do so because he had spoken, were doing exactly what I should expect of them as honorable men.. They wished this petition, which had been under the consideration, of the Committee, to be referred to the High Court. They put an addendum on the report for that very purpose. As honorable men, they moved and’ supported an amendment to carry1 out that intention. The Senate adopted it. This is the resolution which was adopted -
That in the opinion of the Senate as the question involved in the petition -
Not some abstract question - 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 -
That is the point ; we were not prepared to settle it.’ My feeling is that Senator de Largie and Senator Turley could not have escaped from voting for the adoption of the report, except that they felt that the decision of the Senate would not establish a. precedent - it is a proper one -
That is, the question raised by the petition - to refer to the High Court, and that the Government be requested to introduce legislation for this purpose at the earliest opportunity.
That is the resolution of the Senate, which was passed without a division. I. am unable to say. what was in the depths of Senator McGregor’s mind.
– Or the shallows.
– I do not say that ; that would, perhaps, be rude. But this resolution was adopted, without any opposition, as the best and most proper way of having the question involved in the petition determined. But what does the honorable senator say now ? I confess that I am amazed at the tortuous way in which he has sought, as he says, to get round this question. He speaks of the resolution ot the Senate as meaning that “ future questions “ of this sort are to be so determined.
– I never said anything of the kind.
– I took the honorable senator’s words down.
– Then the honorable senator took them down wrongly.
– He said that the Senate decided that in future these questions should be so settled.
– I said nothing ot the kind.
– The honorable senator said it, but if he assures the Senate that he did not, I accept his assurance. I was staggered to hear the honorable senator say that he objected to this being retrospective.
– The honorable senator is right now. I objected to it then, and I do so now.
Senator Sir JOSIAH SYMON What does the resolution mean in plain words? There is no retrospectiveness about it. It refers the question, as we might refer any question in debate, in the form of a special case to the High Court. In plain words, the attitude of the honorable senator means that he invites the Senate to go back on its own resolution-
– I never did anything of the kind. I said that I did not agree with what, was done, and never have done so.
– And to deprive the people of South (Australia of the opportunity, at least, of having the question decided as to whether or not they are to be entitled, under the Constitution, to elect their own senators.
– As the” people of South Australia do not want to do in this instance.
– I cannot regard the honorable senator who interrupts me as representing the people of South Australia, or as giving voice to their wishes. I do not believe that the people of that State, in their calmer moments, would think of his representing them for a single instant. But why should the honorable senator say that the people do not want it?
– Because I believe it.
– I accept the honorable senator’s statement on that footing ; but why should not the people of South Australia be allowed to have an opportunity to speak for themselves?
– Through the National League, I suppose.
– This matter has nothing to do with the National League. I do not care for National Leagues, or for Trade and Labour Councils, or any of them.
– Not just now, perhaps !
– Not at any time. When I was first elected to the Senate I was on nobody’s ticket. I should have been pleased had I been accorded the support of the Labour Party, but theydid not put me on their ticket, nor did the National League put me on theirs. But I was elected in spite of all their tickets, as I shall be again on the first opportunity when I go before the electors. But that is not the question now. The question is whether we, as a Senate, are going to pursue the honest course, or whether we are going to repudiate our own resolution by which we requested the Government to bring in a Bill for the purpose of referring this petition for decision to the High Court. The question is whether we are going to throw over the Government, repudiate our own request, and deny the expression of our own will. It is the most extraordinary position that any legislative body has ever been invited to take up. I do not wonder that the honorable senator should, as he has said, have gone round the question, and tried to obscure it by raising a number of other issues which have no bearing upon it at all. We passed a resolution that this petition should be referred to the High Court, the highest tribunal in this country.
– Against the honorable senator’s wishes.
Senator Sir JOSIAH SYMON.Against my wishes.
– Cannot I say that the other course was against my wishes?
– Except that I said it on the floor of the Senate.
– I said it here, too.
Senator Sir JOSIAH SYMON.When?
I said it before Senator Turley’s amendment was carried against me.
– I said it dozens of times.
Senator Sir JOSIAH SYMON.The honorable senator never said it on the floor of this Senate until the Bill was introduced. He is treating the Government disgracefully. He should have opposed the amendment moved by Senator Turley if he did not desire the Government to introduce a Bill. I believe what Senator Best has said. I believe that the Government needed no coercion to induce them to adopt this course. I believe the statement of Senator Best that it was in their minds from the beginning, but that they did not move in this direction because they did not wish to interfere with the Disputed Returns and Qualifications Committee.
– They had no choice.
Senator Sir JOSIAH SYMON.They had. The honorable senator, as Chairman of Committees, should know that the Standing Orders could have been suspended.
– Oh, yes.
– As I said the other day, if the Government had taken that course I should have supported them through thick and thin with the object of referring the petition to the High Court. It was no pleasure to the Committee to deal with it. But they were obliged to do their duty to the Senate, and they did their duty. I felt that it was better that the Senate should deal with the matter in accordance with the report of their own Committee, but as honorable senators, like my honorable friends on the Committee, had qualms or doubts and would prefer not to have the responsibility directly on their own shoulders, I shall say nothing to the contrary. But the Senate having done this, and the Government having, in obedience to the resolution of the Senate, brought in legislation to have this question decided by the highest tribunal in the land, it is the business of the Senate to support the Government. There is no middle course. I am not saying that if Senator McGregor wishes to protest now he may r.ot do so, but the time to have done it with effect was before. At all events, the course of the Senate seems to be perfectly clear - to carry out its own resolution. It cannot be denied that strongly different optinions have been expressed all round this chamber and outside the chamber. Is it right that any gentleman should sit in this Senate with a tainted title?
– I have as good a title as the honorable senator has.
– The honorable senator need not pit his title against mine. I am here by the voice of the people. He is not.
– I am here by the voice of the Constitution.
– I would prefer that the honorable senator did not interrupt, because he is a party.
– Order ! I ask the honorable senator not to interject.
– It is no fault of the honorable senator that he has a title which a large number of people consider to be tainted. It is a title which a Committee of the Senate has reported to be invalid. That fact is entitled to some consideration. The question is, “ Is the honorable senator a stranger in this House?”
– I respect the honorable senator for his loyalty to his opinion, if he entertains that opinion, but the question is one that has yet to be settled. We thought that we were going to settle it bv the instrumentality of our Committee. Unfortunately, we did not. The petition is in this chamber at this moment, pending and undecided. The report of the Committee has been rejected. The petition is still here and unsettled. The Senate has said, “We are not going to settle it. We are going to hand it over to the High Court for settlement.” The Government have brought in a Bill for that purpose. It is our duty to give our assent to that Bill. If we are to be loyal to ourselves, to be honest, not to repudiate our own resolution, npt to enter upon a path which would involve us in political dishonour, it is our duty to ask the High Court to decide this question. We have asked them by that resolution. Are we to repudiate it? Are we to say in the face of Australia that, doubtful as a large number of people may consider the honorable senator’s title to sit here, we are going to let him sit here, just as we might invite a stranger to sit here, without having his title verified, made good, and cleared of these doubts, in a way which would be satisfactory to him, to us. and to the people of South Australia? If Senator McGregor’s prediction is good, that the High Court will decide against the Committee’s report, and declare the choice by the Parliament of South Australia to be good and valid, what are honorable senators opposite afraid of? Why are they objecting to this Bill? I give the honorable senator credit, for believing that statement. To me, it is a matter of the most perfect indifference, for if the High Court reverses the Committee’s view, I shall accept their decision as any person of any manliness would accept it. I regard this really as an appeal from the decision of the Committee, and I welcome it, not because I believe that the High Court will agree with us, but as I should welcome any appeal if I were deciding any case in a judicial way. No Judge with a spark of manliness or judicial feeling in his composition hesitates for a moment to welcome an appeal from his decision. Treating this matter in . that way, I cannot understand why Senator McGregor should not be ready and anxious to have the case referred to a tribunal which he believes will decide as he wishes and hopes.- I, on the other hand, equally welcome it, not because I have any belief or feeling as to which way the Court will decide, but in order to have the petition settled, and to have it determined either that Senator O ‘Loghlin is rightly here by as good a title as is any other honorable senator ‘ against whom there is no object - tion, or that, if he is not, proper steps under the Constitution shall be taken to send a man here to fill the place which the people were asked to fill onthe 12th of December last year, and which, through no fault of their own, they did not fill. They made no choice under section 7. I do not care two straws as to casual elections, and all the rest of it. All I say is that, before there can be a casual vacancy by death, resignation, or anything else, there must be a valid election by the people. That is the sheet-anchor of the Constitution. It is the people’s sheet-anchor. It is to us an overwhelming duty to see that the electors get fair play. Senator McGregor has sought to obscure the issue by talking about an amendment of the Constitution. The Constitution requires no amendment, but if it required fifty thousand amendments, the time to determine what amendments were required would be after the High Court had decided. The Senate rejected the opinion of its own Committee. Good. I make no complaint. We do not expect, when we sit on Committees of this kind, that our views will be swallowed, without question. A man would be a fool to think anything of the kind. The Senate said that it wanted another tribunal which would not be susceptible to bias or party feeling. The Senate chose the High Court of this country as that tribunal. The Senate could not have chosen a better or higher tribunal, or one more completely fulfilling the conditions which the Senate laid down. The Senate desires the view of the High Court on this concrete case.. We could not send a case to them unless it was a concrete case. They will take no cognizance of an abstract question. We have a concrete case undecided here now. If, from the High Court’s exposition of the subject, it appears that an amendment of the Constitution is . necessary, that can be dealt with. But, at this moment, there is no necessity for any amendment of the Constitution. The Constitution is clear that senators are to be chosen by the direct vote of the people. , If the people do not choose, who is to make the appointment ? If the election which they have made is no election, and is void as though they had never made it, surely they are entitled to have another try at it ? Surely they are not to be told that somebody else is going to send a senator here? If the view of the Committee is correct - and that is the point to be determined - the Houses of Parliament of South Australia had no more right to send Senator O’Loghlin here than this Senate had, or than the House of Representatives had, or than you, Mr. President, would have had to call in a few men from the street, and make them draw lots as to who should come into the Senate.
– There is “ much virtue in an ‘if.’ “
– The “if” is the point to be decided bv the High Court. If the people have not made their choice, the first elementary cardinal condition of the Constitution has not been fulfilled. If a man is chosen in the proper way, the application of section 15 is perfectly clear. The question in this case is whether, where the people have not made a choice, the Houses of Parliament can make one for them. Is not that a proper question to determine? There is all the more virtue in the strong view which the Government take, from the fact that their own Attorney-General, before the judgment of the High Court in the mandamus proceedings, took a view which any man, even of his eminence, might fairly take. But the judgment of the High Court, in those proceedings, unsettles at least one of the main foundations upon which the Attorney-General’s opinion rests. It is all the more creditable to the Government that they took on this question an excellent stand, although it is not the stand which I invited them to take the other day. They took a constitutional stand. They said, “ In spite of the view which we entertained, we accept the resolution of the Senate, and adopt at once what we have felt all along was the proper course - to have the matter decided bv the highest tribunal in the country.” Then why must there be an amendment of section 15? “There is no need for any amendment of it at all. If the people have made a choice, and there has been a subsequent . casual vacancy, then section 15 applies, and Senator O’Loghlin is properly here. If the people made no choice, and there was no election, then section 15 does not apply, and Senator O’Loghlin is not properly here. However difficult it may be to arrive at a solution of it, that is, after all, the whole simple issue. But its simplicity does not consist in what I think would be a stain upon the honour of the Senate in refusing to carry out its own resolution, which they have invited the Government to provide them with legislation to carry out, so that the High Court may determine the matter. I do not wish to allude to Senator McGregor’s gibes. I suppose he thought that that was the proper way to garnish his speech. He is rather a master of gibes. When he said that clause 2 would satisfy every one on this side of the chamber, I expected him to add that it satisfied every one on his side also, because it is merely a clause which the Government were directed to frame in order to carry out the undivided resolution of the Senate. His statement was meant for a gibe, but I did not accept it in that way. As I have candidly said, I thought that the Senate ought to have decided the question, and naturally decided it in conformity With our report. But when it has decided the question otherwise, I loyally adhere to its resolution and intend to assist the Government in carrying it out. I am not going to discuss - not even in a four hours’ speech - the question which I discussed when I was moving the adoption of the Committee’s report. Why should I go into the question again? What are we asked to do? We are asked to refer the discussion and decision of the question to another tribunal. Why should we open it up again?
– Let us refer it to the Court.
– -That is exactly what I think. I assure Senator McGregor that I did not mean to speak on the second reading “of this Bill. No second-reading debate was necessary, and no division on the second reading is necessary, because it goes without saying that the principle of the Bill has been affirmed by the resolution. For reasons which were satisfactory to the Senate, it was felt that the report of the Committee should not be adopted, and that” a higher tribunal, which would not be open to the suggestions, however ill-founded, which were made in regard to the Committee, should deal with the question decisively. From that point of view it was determined to lay aside the report and to send the petition for settlement to the Court of Disputed Returns. This Bill is introduced for the purpose of enabling that course to be followed and that result to be achieved. I think it is a course which will give satisfaction to the people of this country. I believe it is one which the people of this country, as well as the people of South Australia, expect to be taken. I have no doubt whatever that, from one end of Australia to the other, wherever this question has been understood and considered, the people are looking forward with some eagerness to having the determination of the High Court as the Court of Disputed Returns on the right of Senator O’Loghlin to be here. I think, moreover, that if we in this Senate by some strange moral obliquity, should in defiance of our own resolution refuse to send the petition on for determination to the Court, the people of South Australia, the people of all Australia, will be bitterly disappointed. I think that if such result should come about we in this Senate, on reflection, will gravely regret and bitterly re pent the inauspicious and unfortunate course which we shall have taken.
– I would not have risen to speak at this stage had it not been for the fact that Senator Symon, a colleague of mine, pooh-poohed the idea of me being a representative of the people of South Australia.
– I withdrew that remark when the honorable senator objected.
– I, as a senator for South Australia, have a right to express my views on this question, but I do not intend to indulge in any personalities. Senator Symon referred to his election in the first instance, and if he can do that, so can I. At the second time of asking the electors he received about 9,000 votes less than he did on the first occasion.
– But I received 2,000 more votes than the honorable senator did.
– I am coming to that, and if the honorable senator will allow me to make my speech in my own way, it will read better.
– I thought that the honorable senator had forgotten the fact.
– I had cot forgotten it. On the first occasion the honorable senator led labour - and that is what he has fought - by 11,000 votes. On the last occasion., I, a humble representative of labour - a farmer taken from the plough - came within 1,802 votes of the honorable senator. I was well satisfied with my position. I am- sure that I da not need to tell the Senate why I am satisfied. Speaking, with his great eloquence, as a! party man, and fighting, as he did, with wealth in his pocket and with the National League behind him, is it not a wonder that labour came so near to him?
– Yes, it is.
– If the forms of the Senate would allow me, I might refer to the honorable senator taking some planks of the policy of the Labour Party to help him along. But that is not my object.
– That is what brought him here.
– The honorable senator ought to be thankful for that.
– I am thankful to the honorable senator for nothing. No, he did not save me from the gallows, but he tried to kill the- United Labour Party.
– I should like to save the honorable senator, though.
– Order !
– I do not intend to get excited, sir, but I like to see fair play. On that occasion Senator Symon fought against the party to which I belong, and he is doing the same to-day. On a previous occasion I made some remarks about the Disputed Returns and Qualifications Committee holding its meetings in a certain place, and I do not intend to repeat them. A certain decision was arrived at by that body. Senator ‘ Symon prepared the report, and, my word, sir;- he can do it well. Many a person in South Australia would have been hanged if it had not been for his grand eloquence. Undoubtedly, he put the case against Senator O’Loghlin remarkably well, and he got the draft report accepted because there were behind him four senators of the same way of thinking.
– When the honorable senator gets into trouble I” shall put my services at his disposal.
– Will the honorable senator allow me to proceed ? He also had four senators behind him when he made a fervent appeal for justice and on behalf of South Australia. When he moved the adoption of the report, what did he say? Practically he said that if the Senate did not accept the recommendation it would be treating the Committee with insult. I always like to be fair. If I stand up “ here to submit a motion for a certain purpose, or to make any statements, I like to stay .until the question at issue has been threshed out, because the mover of a motion has the right of reply. On that occasion Senator Symon did not stay to exercise that right. I presume that he realized that the numbers were against him, and so he cleared out. If cannot be too extensively published that the report, as approved by five members of the Committee, was not- accepted by the Senate, but rejected, and that Senator Symon, the leader of the party, “turned his back in the day of battle. I wish, sir, that he would be quiet. It is most trying that he, my leading. opponent, should sit in front of me, practically on the Treasury bench.
– Order !
– If you, sir, will allow me, I shall move to another place, and speak from there. It is most trying indeed to address the Senate in such circumstances. Surely the honorable senator would not adopt these tactics but for a purpose.
– I’ beg the honorable senator’s pardon. I did not know that I was interrupting him.
– The honorable senator often does that. He speaks here as if he was one of the greatest men whom God had ever made. Among lawyers he is asking. When he expresses an opinion no little dog dare to bark. What did the Commonwealth Government do in this matter? The Attorney-General was consulted, another leading lawyer was consulted, and the Governor of South Australia, through you, sir, was advised as to what had happened, and the necessary steps to be taken to fill the vacancy. What did the Government of South Australia do then? The Price Government thought it wise and safe that the leading legal luminaries of South Australia should be consulted. Mr. Murray, Mr. Glynn, and the Crown Solicitor - unbiased men, we presume them to be - were asked to give their opinion on the question; and’ they, unknown to each other - at least’ so far as Mr. Glynn was concerned - came to the same conclusion, and that was that the proper way in which to fill the vacancy was for the Houses of the State Parliament to sit together and choose a senator. The State Government - having no axe to . grind, I presume - took that course, and what happened then? Senator O’Loghlin, who. never put himself forward to ask for the nomination of any party, was written to and asked to allow himself to be nominaked. He consented, and so did the petitioner, Mr. Vardon, and Senator O’Loghlin was elected by an overwhelming majority by the two Houses of the South Australian Parliament sitting and . voting together. The result was communicated to him, and he is consequently here to-day. He has been pestered practically with the opposition of the Conservatives. It is the Conservatives, and not the other side, who complain that he is holding his seat illegally. I have not a word ta say against Mr. Vardon, but if it had fallen to his lot to have been elected by the South Australian Parliament, everything would have been all’ right. There would have been no need to get a mandamus, and nothing would have been said about bringing back a -crown of victory from New South Wales. All that would have been knocked on the head. We are always being accused of being afraid to face the people. But we have nothing to fear. If there had been an election to the House of Representatives for the four districts of Adelaide. Hindmarsh, Boothby and Grey, Labour would have scooped the pool, and Senator Symon would not be where he is to-day. I believe that the people of the State are still of the same mind. I mingle with them as well as does Senator Symon, although the honorable senator would have us believe that he is the only representative of South Australia in the Senate. There are five other representatives of that State in the Senate, and we are all of one opinion in reference U> this matter. We do not need to fear the people. The people are satisfied with matters as they stand. They recognise the special and wonderful efforts that have been made by the Conservatives to gain a seat. I do not wonder at the course which has been adopted. I have been in politics before. I know what takes place, even in this Senate, where party spirit should not be so strongly exhibited. The numbers on each side are so nearly equal that we can recognise the great difference it would make for Senator Millen, and the party he leads so grandly at times, to have one vote taken from this side and given to the other. We know that the result might be to give honorable senators opposite a majority instead of a minority in many divisions. We must consider that. We know that this party warfare is “ all in the game,” and, as Senator McGregor has said, the persistence of honorable senators opposite in attending when they expected this matter to come up for consideration has been most noticeable.
– They do not appear to be so persistent in their attendance now.
– Certain honorable senators have gone out of the chamber, but they are within hearing of the division bells, and if a division were called for they would soon be present. When I last spoke on this question I quoted from Robert Burns.
– He is dead.
– He is dead, but his works still live, and shall live for ever. I concluded my speech on the last occasion, in referring to the attendance of honorable senators, by a reference to a statement from ai Presbyterian pulpit. I mentioned that a certain reverend gentleman attended a sitting of the House of Representatives, and there was such a poor attendance of honorable members that he went away disgusted, and never came back again. But if the Rev. Dr. Rentoul, who is himself a champion, had been here when this matter was being discussed, I am sure he would have changed his opinion.
– And have come oftener.
– Yes, he would have come back again if he. had witnessed the warm interest taken in this legislation by Conservatism, and would have been prepared on that night to admit - slightly altering Burns - that
Even a child might understand
The Senate had something on its hand.
I agree with what Senator McGregor said on this Bill. There is nothing of the coward about me, and I should deal with this matter as I propose to do if it were my own. case,, and not that of another. I Have heard Senator O’Loghlin say that he would just as soon go before the electors as not. But that is not the question. The Senate had the power to deal with this matter, and was supposed under the law to deal with it. A majority ‘ of honorable senators refused to do so. The leader of a certain party turned his back in the day of battle and went off to Adelaide, and the honorable members of his party did not call for a division because they knew that the numbers, were up. Those who have been in politics for some time or know anything of political methods must be aware that once the numbers are up it is useless to divide the Senate. I believe, with other honorable senators on this side, that an injustice will- be done if this Bill is made retrospective. I need not say that I shall oppose any such proposal. I wish to make a point of this, and I wish Senator Millen would give me his attention. This has bean called a party question.
– By Senator McGregor?
– Senator Millen also knows that it is a party question. It was distinctly a party question with the Conservatives opposite up to a certain stage, and until they saw that the numbers were against them. It was the
Labour Party that gave way. Two honorable senators belonging to this side gave the show away. Whether they were mesmerized by Senator Symon or not I do not know.
– The honorable senator is talking nonsense.
– I do not say what actually happened, but I am just a little afraid that that was the case.
– The honorable senator has selected: two of the most unlikely subjects.
– It is all very well for Senator Millen to talk, but I am speaking now rather in favour of Senator de Largie.
– It does not look very like it.
-I do not suppose that the honorable senator would have taken the course he did if it had not been for the “ addendum,” which, according to’ a South Australian newspaper, is a new word coined for the occasion, and which, 1 think, must have emanated from Senator Symon. I am not in the least surprised that Senators de Largie and Turley fell into the trap, if it was a trap. But I point out that in doing so they at least showed that, so far as labour is concerned, there was no interference by the caucus. If they had been true - I will withdraw that expression and sav that if they had seen otherwise, and had contented themselves with protesting against the motion instead of moving an amendment, and had stood by the party on this side-
– And trampled on their conscientious views.
– The Government would have been quite convinced that they had done the right thing if they had only known that the numbers were with them. I think that I have put my position clearly. I was not prepared to make a speech on this question this afternoon ; but when a legal luminary and a colleague of my own. in the representation of South Australia, tries to trample on me as a mere worm, I. object, and I remind him that worms are known to turn. I stand here in the interests of the people of South Australia, and though I should be mistaken, I at least express what I mean. I am satisfied that I can speak for the democrats of South Australia, whom I have been sent here to represent, when I say that they are satisfied with the election of Senator O’Loghlin, and that if it should be necessary for him to appeal to the electors, they will remember the good services he rendered to the democracy of South Australia years ago, when, as a member of the Kingston Government, he helped to carry the banner of Liberalism, and will undoubtedly return him to the Senate with an overwhelming majority.
– Two speeches to which we have listened this afternoon afford material, on the one hand for instruction, and on the other for very keen regret. The speech just delivered by Senator W. Russell has been instructive as showing something of what we may assume to be the inner workings of the Labour mind. We have witnessed the spectacle of the honorable senator deliberately stating it as his opinion that- certain members of his party should have trampled on their principles and views in order to give a vote that would serve the interests of the party.
– I did not . say anything of the kind.
– From what I know of some of them, I refuse to believe that all. the members of the Labour Party will accept that as an authentic and unchallengeable statement of their position.
– I never made it
– I refuse to think that they would for a moment indorse the rebuke which the honorable senator has administered to Senators de Largie and Turley, when he said that they ought to have been loyal to their party, and could only have shown their loyalty in the way he wished by trampling on their principles and conscientious views.
– I did not say anything of the kind.
– I should be the last man in the world to wish to do the honorable senator any injustice, but I can appeal to honorable senatorswho listened to himto say whetherI have not correctly stated the views to which he gave expression. 1 now turn to Senator McGregor’s extremely regrettable speech. The honorable senator declared, with a frankness which was rather unusual, that so far as he was concerned this was a purely party question. In view of the speech he delivered that statement was entirely unnecessary. It was obvious, both from the tone’ and the argument of the honorable senator, that, so far as he was concerned, the merits of the case were never placed in the balance at all. It is merely a question of securing a party advantage by hook or by crook. The honorable senator said that the only difference between himself and those who sit on this side of the Senate was that we were equally animated by party feeling, but were, not frank enough to admit it, whereas he admitted the same party feeling, but claimed a measure of frankness, inasmuch as he acknowledged it. The honorable senator did me - and I believe others also, on this side of the chamber - a great injustice. I can place one or two facts before the Senate, and appeal to some of those who are present to justify the statement that, so far as I am individually concerned, I was absolutely free from any party feeling when I first approached the question. When- the Committee’s report was first printed and circulated, I - as I assume that every other honorable senator did - gave it -such careful study and thought as I was capable of. I came to the conclusion that the report was unanswerable, and that the conclusion at which the Committee had arrived - that the seat was not properly filled by Senator O’Loghlin - could not be refuted. I felt that the only right thing to do was to support the adoption of the report. But, having arrived at that conclusion, I came to the Senate when the debate was in progress. I did not take part in it, but I listened carefully; and I had not listened very long before it became apparent to me that party feeling was gaining a hold on honorable senators, and was likely to lead the Senate to an exhibition which would not redound to its dignity and its credit. Seeing that, and being above all things desirous that party spirit should be kept out of this matter- - although I believed the Committee’s report to be well founded, and that it should be adopted - I set to work to impress upon other members of the Senate that it would be better for our credit, however we viewed the Committee’s report, to send the matter to the High Court. Now, I ask, was that an evidence of party spirit on my. part?
– The honorable senator knew what the numbers were.
– That remark is. of course, entirely worthy of the honorable senator. I know this from the declarations of honorable senators - that had a division been taken, we should have carried the report.
– It amounts to this - if I had supported the report on that occasion, honorable senators opposite would have said that I was animated by party bias; but when I took occasion to secure the carriage of an amendment, thev say that I did it becauseI knew how the numbers were. That is entirely worthv of some honorable senators opposite.
– It shows the honorable senator’s generalship.
– Honorable senators who make such charges judge others according to the workings of their own mind. A man who is not capable of an honest and straightforward action is not likely to suspect it in others, but a man whose inevitable tendency is to run straight will credit his opponents with doing the same unless he has strong reason for believing the contrary.
– Some people can keep straight on both sides.
– My honorable friend has done that. I prefer to keep straight on one side. I consulted Senator Turley while the debate was in progress, and before I knew that he intended to move an amendment. I submitted to him the draft of an amendment which I had drawn out with the view of giving effect to an opinion which had. formulated itself in my mind. I thought it better that the Senate should avoid an exhibition which would not have a tendency to strengthen this Chamber in the view of the public. It was then that Senator Turley showed me the amendment which he had prepared ; and as he aimed at the same thing as I did, and his proposition expressed my own intentions, I determined to support it rather than to proceed with my own amendment. In view of those facts, I think that a member of the Senate may reasonably claim that he has given some evidence of a desire to approach this matter free from party feeling. Senator McGregor also assumed that the Opposition was animated by party feeling, because when the subject was last before the Senate the Opposition was present in some strength. If the presence of the Opposition in strength is evidence of party feeling, where was the party feeling last Friday when the second reading of this Bill was moved, and when there was no member of the Opposition ready to take up the debate? I knew that this matter was coming on. I was not present on Friday. Had I been animated by that wild Red-Indian-like party spirit to which Senator McGregor pleads guilty, ‘I certainly should have been here. The other evidence of the absence of party spirit is the state of our ranks to-day.
– They are very thin now.
– The . honorable senator is perfectly right. But if there is any justification for the conclusion which Senator McGregor attempts to draw from the fact that on one occasion we had a full muster of senators, where is the party spirit to-day? Does the honorable senator assume that’ full benches on one day spell party spirit, and that ‘ empty benches on another day mean exactly the same thin??
– They are all about somewhere.
– The honorable senator can take my assurance that they we not about. If there had been anything like a party whip, there would have been present members of the Opposition who. as a matter of fact, are many miles away today. I need refer only briefly to the main principles, because they have been amply dealt with by Senator Symon. Every speech that we have heard has shown the absolute necessity of referring this matter to the High Court. Honorable senators on one side and the other have emphatically expressed their opinions as to what section 15 of the Constitution means, and as to whether or not Senator O’Loghlin has a right to sit in the Senate. Senator McGregor was absolutely confident that section 15 bears the construction that Senator O’Loghlin is entitled to sit here. Senator Symon .was equally emphatic in the opposite direction. Both of them, as a matter of fact, were just as emphatic as were many good citizens of this Commonwealth before a certain event took place yesterday. We know the way in which many of those citizens took the opportunity of indorsing their opinions. The very fact that these contradictory opinions do prevail - and we assume that they prevail in all honesty, and that they are bond fide opinions - are evidence of what?
– That section 15 is vague and ambiguous.
– But the honorable senator has said that it is as clear as day light. What are we to do with a section which Senator McGregor says that he has no difficulty in interpreting, when others interpret it in quite an opposite direction ? Senator Symon is in absolute agreement with Senator McGregor that the section is clear. It is clear to both of them, and it is clear to me. But it is only when we come to draw deductions from the pellucid depths of’ this section that we find there is a conflict as to what it really means. Under these circumstances, there is, in my opinion, but one course to follow, and that is the course which has been taken by the Government with the approval of the whole Senate. Senator McGregor argued that if the section were not clear we should submit to the people an amendment of it. But can the honorable senator show me ai single section that was ever drafted, or a single sentence or phrase dealing with a legal question that was ever written, in which there was not the possibility of doubt? If it were not so, we should not need Courts of justice or any of the legal machinery which to-day we find to be absolutely essential. The founders of the Constitution and the electors to whom it was submitted knew perfectly well ‘that, no matter what ingenuity or subtlety or capacity might be brought to bear in adapting the sections of the Constitution, doubts would be bound to arise. For that reason they called into existence the High Court, which is at once the interpreter and guardian of the Constitution. That brings me to this conclusion - that the very fact that these differences of opinion prevail shows that a question has been raised which can only be finally and properly determined by the High Court. If we adopted Senator McGregor’s suggestion, provided a new section 15, and sent it to the electors for their approval, we should still be faced with the possibility of a doubt arising when the new section came to be interpreted.
– There can be no mistake if the election is a popular one.
– There might be a mistake even then. Senator McGregor does not propose to make every election a popular one. I judge that because I do not think that he would be foolish enough to plunge the whole of the State into an election for the Senate perhaps within a week of a general” election. But if we were to follow out his line of argument a little further, and because some doubt has arisen as to’ a section, instead of referring it for decision to the High Court, seek an amendment of the Constitution, we might as well refer every section of the Constitution to the electors when a doubt arose. There is hardly a section of the major working sections of the Constitution about which there is not some measure of doubt - some reasonable opportunity for legal minds to see some difference of construction or interpretation. What Senator McGregor proposes would apply to every section about which there is dispute. Surely he will see at once that when a doubt arises the proper authority to determine it is theHigh Court itself. Such a doubt did arise in this case. The matter was brought before the Senate in the form of a petition.I should like to remind Senator McGregor that that petition still lies upon the table of the Senate. If we adopt his suggestion, and strike out clause 2 of the Bill, what does he propose to do with Mr. Vardon’s petition, which is still current and undecided? Senator McGregor, when the matter was last before the Senate, by his silence gave assent to the proposition that we should refer it to the High Court. If he now proposes to go back upon that view, what does he propose to do with the petition? I observe that the honorable senator is too busily engaged to answer my question.
– What was done with the Committee’s report? Tt was rejected.
– My honorable friend reminds me of a matter to which I intended to refer, when he draws comfort fromthe fact that the Senate rejected the Committee’s report. The Senate also rejected a motion which was moved to confirm the seat to Senator O’Loghlin.
– No; the Senate accepted an amendment.
– I withdrew the motion because I got something more congenial.
– Exactly; and something which commanded a larger measure of support than either of the alternatives then before the Senate. We had before us the petition. There was the Committee’s report making a recommendation. There was also a resolution confirming the seat to Senator O’Loghlin. The Senate declined to accept those alternatives. Instead of that, so far as we can judge from the expressions of opinion, the Senate desired that the matter should be sent on to the High
Court. That was the time for the display of frankness, of which Senator McGregor has given us an instalment this afternoon. He ought to have told the Senate then that, whilst voting in such a way as to get rid. of the Committee’s report, because it would, if adopted, have unseated Senator O’Loghlin, he did not intend honestly to adhere to the decision which the Senate arrived at. Having got over his immediate difficulty, his intention was, if possible, to find some , other way to secure that party object which he has admitted, and which he clearly had in view. We owe a certain measure of consideration and honesty to each other in what we do. I understand all about party tactics. I could not have been associated in this Chamber with Senator Stewart for so long, without learning a little about them, and I have not the slightest doubt from my limited experience of Senator W. Russell that before I have served my term of office I shall learn some more from him. If I am to interpret Senator McGregor’s attitude on this occasion by his speech, it means that when the matter was before this Chamber previously, he was absolutely wanting in frankness in adopting, or assenting by his silence to, the proposal to refer the question to the High Court. He managed in that way to get rid of a proposal which, if carried, would have unseated Senator O’Loghlin, and now he turns round and says in effect, “I am not prepared to stand by the resolution which I helped to pass.”
– I did not help to pass it. I allowed it to pass.
– Silence gives consent. Honorable senators know the purport of that resolution, but I propose, because of its extremely clear and forcible language, to refresh their minds with it. It reads thus -
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.
Senator McGregor, and those who think with him, joined in that request to the Government to bring in legislation to enable the matter to be referred to the High Court. What did thev mean by the request, if lurking in their hearts there was a determination to defeat and destroy that legislation when it was brought forward? Such an attitude was lacking in common honesty. The honorable senator then sought to get rid of his major difficulty by appearing to lend countenance to this reasonable and wise alternative course.
– I did not lend any countenance to it. The Government know quite well that I did not approve of it. I do not approve of retrospective legislation.
– This legislation is not retrospective, as the petition is still on the table of the Senate, and undealt with. It awaits decision.- If, as Senator McGregor proposes, clause 2 is struck out, what does he propose to do with Mr. Vardon’s petition?
– Send it back.
– Senator McGregor, with a discretion which. I admire, refrains from answering. -Senator McGregor. - Interjections are disorderly.
– They are’ sometimes. The pathetic loyalty that honorable senators display at times towards the standing orders, which at other times they so readily break, is astonishing. If Senator McGregor’s designs upon the Bill are given effect to the petition will still have to be dealt with. We shall be simply brought back to the position that we were in a fortnight ago, with three roads open to us - one to confirm the seat for Senator O’Loghlin, another to declare him tobe improperly in this Chamber, and the third to refer the matter to the High Court.
– The honorable senator knows very well that I cannot have my way on this occasion. I have made my protest.
– That is the most comforting thing I have heard this afternoon. To give effect to Senator McGregor’s views, would not settle the matter. The petition would still be here, and we should have to fight over again the question which I thought we settled a fortnight ago. I am as certain as a man can be that, if the petition did come forward again, the Senate-would pass another resolution directing that it should be referred to the High Court. Are we going to travel round in a circle in that way, acting like a lot of children, or inmates of a lunatic asylum?
– The honorable senator knows that the Bill will be carried, if all his people are here.
– Then I gather that the honorable senator is going to make a vigorous whip to defeat the Bill. I know nothing about the probable numbers. When the first Electoral Bill was before us we strove as well as we were able to provide that all matters of this kind should be lifted clean out of the parliamentary arena and transferred to a Court within the judicial atmosphere of which they could more properly be determined. Apparently we did not succeed, although I and a number of others, including Senator Pearce, and, I believe, Senator McGregor, had that end in view. - All that this Bill seeks to do is to give effect to that policy. There might be some force in the argument about the Bill being retrospective if the petition had teen dealt with. But it is still here - a current, live petition. If we destroy clause 2, we shall still find ourselves face to face with the problem, “ What are you going to do with Vardon’s petition ?” This Bill opens up, at this stage of the proceedings at any rate, the only reasonable and satisfactory prospect of disposing of the petition. We send it to the Court, with the full knowledge that the Constitution will be respected, that every party to it will stand upon anequal footing, and that the decision will be given without fear, favour, or bias.
Senator Major O’LOGHLIN (South Australia) [5. 53]- - I have not spoken on this matter previously, for obvious reasons, but now that the report of the Committee has been dealt with and we have before us a Bill which proposes to transfer the power to deal with the question from the Senate to the High Court. I may be permitted to say a few words. I entirely approve of the proposal to transfer this matter to the High Court. There will be no material opposition to that proposal in the Senate, although some honorable senators have very natural objections to what is, if not retrospective, atany rate ex -post facto legislation, dealing with a particular matter after the events which have led up to it have already transpired. I did not understand Senator McGregor’s remarks to bear quite the construction which some honorable senators have put upon them. The honorable senator’s argument about the amendment of the Constitution was pertinent to this extent, that if section 15 is not amended, the objection raised so emphatically by Senator Symon - that the people of any State may be deprived of their right of representation - will still remain. While section 15 remains in the Constitution that contingency may occur at any moment. It has occurred on three previous occasions. I am not the only senator who has held a seat, not by the popular will, but by another means provided by the Constitution, and therefore approved of by the people of Australia, just as’ much as the popular election of senators was approved of by them. It matters little to the people whether they are deprived of their right through some mistake in the first place, or whether, immediately after they have made a choice, that choice is rendered void by resignation, death, disability, disqualification, or any of the numerous means that are provided for in the Constitution, and if then the right of electing a senator devolves upon what Senator Symon has very properly described as an inferior body. But that disability arises under the Constitution itself. I do not think it is any greater hardship to the people of any State to be deprived of that right by the blunders of some official, than by the dishonesty or disability of the senator elected. What difference does it make to the people? In either case they are deprived of their right. In this particular case, apart from the numerous blunders and difficulties that arose, the (people of South Australia would have been deprived of their right by the hand of Providence in any case. The man who was elected - I was astonished to hear Senator Symon deny this by interjection-
– I do deny it. Mr. Vardon had a majority of two votes according to the decision of the Court. If the votes that were improper and that could not be admitted could have been admitted, Mr. Vardon would have been in a minority of four. But those votes could not be admitted, and so the man really elected was Mr. Vardon.
– Those votes were the honest attempt of the people to elect a senator. I shall quote a part of Mr. Justice Barton’s decision, which I do not think has been quoted- before. That decision, as Senator Symon pointed out, cannot be questioned in any way. In his very lucid statement of the case, when sitting as a Court of Disputed Returns, Mr. Justice Barton had to deal with some 200 votes that had not been initialed. The question was whether he was entitled to see if those votes would have had any bearing on the result of the election, or not. He “ said -
I am satisfied Lhat I must look at this as another set of instances in which votes have been thrown away through the fault of officers in not doing as the Act ordains. Here there were no initials at all, in face of the express and unmistakable requirement in the Statute. Mr. Piper’s argument as to authenticity is ingenious, but I cannot help remembering that there is no suggestion that even one person who was not a qualified elector was allowed to cast any of the -votes under review. As they were all honest attempts to vote, it is clear I can look at them for the purpose of seeing whether they would have affected the result had the Court allowed them as valid. It is manifest that they would have done so, and that Mr. Vardon’s majority of two over Mr. Crosby would have been converted into a minority of four. Therefore, unlike the si votes in parcel A, they certainly must have affected the result, and so I cannot apply sec. 200.
That means section 200 of the Electoral Act. Mr. Justice Barton held that he was entitled to consider the effect of those votes upon the election. If there had been no mistake of any sort, if every official concerned in the election had done his duty, those votes would have been properly initialed and counted, and the late lamented Dugald Augustus Crosby would have been elected as senator. He would have been declared to be a senator. He died, unfortunately for South Australia. Section 15 of the Constitution would clearly have applied, and the result would have been exactly as it is to-day. Therefore, if the people of South ‘Australia have been deprived of any right, it was by the hand of Providence and by the wording of the Constitution, which provides that casual vacancies are to be filled in a certain way. The Bill practically consists of two parts - one dealing specially with the petition which is- still before the Senate, and the other making some general alterations in the Electoral Act. There are different means of deciding disputed elections in different States. In some cases Committees of the Houses act as a Court with full powers to decide. In South Australia, with whose Constitution I am most familiar, there is a Committee which has given very general satisfaction, and which combines the advantages of a Committee of ‘the House with the constitution of a. Court, inasmuch as it is presided over by a Judge of the Supreme Court. The very greatest care is taken in the selection of that Committee to see that it is as fairly representative as possible. It is held that no member of the Government is entitled to a seat on it, for fear of party bias, and, for the same reason, I think that the leader of the Opposition should certainly not have a position on it. It applies in exactly the same way. The members practically constitute a jury ; the Judge conducts the proceedings, and lays down the law, and the decision of the Court, whatever it may be, is final. I agree with Senator Millen that the decision of these questions should be removed from the arena of party feeling, and intrusted to an independent and impartial Court. That view has been strongly emphasized by the proceedings on the petition of Mr. Vardon. The Committee of Disputed Returns and Qualifications was composed of a preponderating number of senators from one side of the Chamber. That may have arisen, not from any party motive, or with any ulterior idea of securing party advantage, but merely from the fact that very little attention was paid to the nomination, and also from the fact that it was generally understood that the decision of such questions had been transferred to the Court of Disputed Returns.
– The appointment of the Committee was regarded only as a formality.
– Yes, but unfortunately a preponderating number of senators were selected from one side of the Chamber. Another objection to the trial of these questions by a Select Committee is that its members, coming, as in this case, hot from an election contest, may be called upon to sit in judgment on a political opponent, or, what is quite as objectionable, on the claims of a candidate who has run on the same ticket and under the same party banner.
– Considering that the Committee was unanimous in its report, these facts have not much force.
– I am glad that that interjection has been made.
– But the Committee was not unanimous.
– My honorable friend can read English, I suppose?
– Senators de Largie and Turley were not present when Senator Symon, with great casuistry, and, I think, much disingenuousness, attempted to show that the Committee was unanimous.
Senator Dobson. Certainly it was.
– I do not know what took place at the meetings of the Committee. I have no means of ascertaining the views of its members, except from the report, the addendum - which, ac- cording to our Standing Orders, had no right to be attached, as it is only permissible for a member of a Select Committee to enter a protest or dissent from a report - and the speeches. Every honorable senator can read plain English. The report, signed by the Chairman, and acquiesced’ in by five of its members, recommended that the Senate should accede to the prayer of the petitioner, and an addendum, signed by two “other senators, suggested that another tribunal, and not the Senate, should decide the question. If that is not a direct negative, I do not know what is.
– The report was unanimous.
– When Senator de Largie was speaking on the motion for its adoption, he stated distinctly that he did not agree with the very. ‘ keystone ‘ ‘ of the whole position.
– He voted in favour of every paragraph.
- Senator de Largie stated distinctly then that he did not agree with the main proposition laid down in the report namely, that Mr. Vardon had never had a term in- the Senate. Did he not put this question to the Senate : “ Have we not seen with our own eyes that he did have a term of service here ?” Surely Senator Dobson will admit that a remark of that kind shows that Senator de Largie did not agree with the report ! Later on, Senator Turley said that he could not vote for the adoption of the report. If he had agreed to the draft report, that was a somewhat extraordinary statement to come from him.
– They did agree to it all the same.
– Much as I respect Senator Dobson, I think that Senators de Largie and Turley know their own minds better than he does. I was pointing out that, in the cases of disputed returns and qualifications an inquiry by a Judge, as in South Australia, is more judicial and much less open to objection than is an inquiry by a Select Committee composed of members of the House concerned, because in the latter case party feeling must necessarily, I think - and, probably, honestly - come into play, and instead of getting ;in impartial and unbiased report from a Judge, after summing up the two sides of the case and drawing his own conclusions fairly and judiciously, we may get, and I must honestly say that in the present case we did get, a one-sided report.
-The honorable senator is not in order in casting any aspersion -upon the honesty of any members of the Committee.
– I shall revert to my plan of putting a hypothetical case. Where party feelings come into play, we get a report of a one-sided nature, where assertion and assumption take the place of argument and demonstration, and where, instead of getting an impartial summing up by a Judge, we have a partisan statement. There is before another place a measure to remove the decision of these cases from the Court of Disputed Returns to a SelectCommittee of the House concerned.I have not seen a copy of the Bill, but I have heard the proposal commented upon a good deal, especially since this case has come before the Senate.
– That is taking a step backwards.
– It is a bad principle, I think, but it is advocated on the score of economy. I was rather startled to learn from a statement by the author of the Bill, who has gone through the turmoil and difficulty of a disputed election, that it cost him£1,000 before he succeeded either in securing the seat or getting the other party unseated. I am not familiar with the particulars of the case, but I have heard that part of the cost of each party was defrayed by the Government. For a time there was a feeling amongst some members of Parliament, both here and elsewhere, that it would be desirable to transfer the decision of such questions from the Court to the House concerned. In my opinion, the Bill is as dead now as a door-nail, because I am satisfied that the proceedings on this petition must have convinced every one of the danger that is run in allowing such cases to be decided according, to party feeling and prejudice. I know that a good many senators, who were rather inclined at first to support the proposal, are now of an entirely opposite opinion. I believe there is very little probability of a Bill of that sort becoming law. I desire to enter an emphatic protest against attempts which have been made, particularly in South Australia, to discredit and misrepresent the attitude of the Labour Party on this question. At the time of my selection by the State Parliament it was stated in a portion of the Adelaide press that the Labour Party were resorting to a dodge to secure a seat; that, although they had at all times stated that they favoured the principle of popular election, yet, in this case, they arranged to have a different procedure adopted. It was reported that the election of a senator by the State Parliament was the result of the machinations of the Labour Party. It has been pointed out by Senator W. Russell, who was deeply concerned in the whole matter, that neither the Labour Party nor any other party had anything to do with the adoption of that method. In the first place, it was intimated by the Attorney - General, who had looked into the matter with a view to seeing whether it was necessary for the Department of Home Affairs to prepare for an election, that a casual vacancv in the representation of South Australia had occurred, and that the procedure for the filling of that vacancy was laid clown in section 15 of the Constitution. The State Government were not content to act upon that intimation. They consulted the Crown Solicitor, and had his advice fortified by the opinion of two eminent counsel in South Australia, namely, Mr. Glynn and Mr. Murray, K.C., who is one of the highest constitutional authorities we have - a lecturer on constitutional law at the Adelaide University, and a man who, if he has any leanings at all, are probably towards the party with which Mr. Vardon is associated rather than towards the Labour Party. Fortified by the unanimous opinion of all the counsel whom thev consulted, the State Governor summoned the Parliament to meet to elect a senator to fill the vacancy. The members of both Houses had nothing to do but to obev that mandate. They had no voice in the adoption of the method: Neither House had an opportunity of expressing an opinion or passing a. vote on that subject ; it would have been utterly unconstitutional for them to do so. When the two Houses sat together, Mr. Vardon and myself were nominated, and I was chosen. From that time until the present day a portion of the local press has persistently taunted the Labour Party with having thrown awav their principles with regard to popular election, and brought about the choice of a senator by the State Parliament. In its issue of 2nd November, the South Australian Register refers to this Bill, and after explaining its provisions, it concludes with this passage -
Meanwhile Mr. O’Loghlin, whom the people did not choose, will enjoy the privileges, emoluments, and voting power of a senator at the expense of Mr. Vardon, whom the people did choose.
– That is fair comment.
– I have no wish to use strpng language, but I say that there is a lie in every sentence of that statement. As I have just shown, Mr. Vardon was not chosen by the people. He is a gentleman whom I think we all respect. He is a neighbour of mine, and I have had many friendly chats with him on this matter during the time it has been sub judice. I believe that our mutual feelings are those of esteem and friendship; but the fact remains that Mr. Vardon was not elected by the people. On the authority of the High Court Mr. Crosby was elected. It is not fair to say that I hold my position here at the expense of Mr. Vardon or any one else. Should the decision of the High Court, to which I hope and believe the question will be referred, be against the validity of my occupancy of the seat, I shall have been only in the same position as that occupied by Mr. Vardon for five months, when he, in the words of the Register paragraph, “ enjoyed the privileges, emoluments, and voting power of a senator.” It is quite unfair when a man has been elected to a seat in the Senate in a manner provided for by the Constitution to say that he holds his position at the expense of any one else. I rather resented Senator Symon ‘s expression that I hold “ a tainted title “ to the seat. I hold my position here exactly as other members of the Senate hold theirs, since, in common with them, I have been elected in a manner provided for by the Constitution.
– That is the whole point at issue.
– A “ disputed “ title would have been a less offensive expression than a “ tainted “ title.
– A “ tainted “ title is a legal term, and no offence was meant.
-I do not say that any offence was meant, but I think I have shown that in virtue of my election in a manner provided for by the Constitution, I am as fully entitled to exercise the rights arid privileges of a senator as is any other member of the Senate. Reference was made in the course of the debate on the report of the Committee of Disputed Returns and Qualifications to the power of a senator whose seat is questioned to resign. In one of the paragraphs of the report, I. think it was stated that a senator who held a disputed seat might defeat a petition against his election by resigning. I contend that if
I were to send in my resignation to the President, it would, under the Constitution, take effect the moment he received it, and I could be debarred from that time from entering the Senate; but it would not prevent the proceedings in connexion with the petition going on even if I had resigned before it was referred to the Committee of Disputed Returns and Qualifications. Senator Symon will remember that I raised that question before the Committee. I quoted from authorities to show that, according to the practice of the House of Commons in the case of a disputed election, even the death of one of the parties does not prevent the matter from being carried on to a final settlement. It will be admitted that that is only fair, because in such a matter the interests of others are involved as well as those of the parties to the petition. I came across a record of a case which occurred some years ago. in South Australia, which illustrates the point I wish to make. It is referred to in the Practice of the House of Assembly by Mr. Blackmore, the Clerk of the Parliaments, whose absence through illness we all deplore, and particularly honorable senators from South Australia who were associated with him for so long in the Parliament of that State. The case will, perhaps, be of more interest to honorable senators in view of the fact that both Houses of. this Parliament were for a time carried on under the Standing Orders in force in the State Parliament of South Australia. In referring to the case, Mr. Blackmore says, at page 4 of his work -
On 31st March, 1865, bsing the first day of a new Parliament, Mr. William Henry Trimmer, elected as one of the members for the District of Noarlunga, having taken his seat and ‘subscribed the oath of allegiance, resigned his seat on the same day in a letter to the Speaker, in the following words : - “ Sir, - Having been returned to Parliament as member for the District of Noarlunga by an informality in some of the votingpapers, I think it my duty to resign my seat, and I hereby tender my resignation.”
I may say that in the South Australian Parliament there is no standing order in force under which a member’s resignation takes effect at once, as soon as announced, but it has been usual for the House to accept or reject it as honorable members have thought proper. Mr. Blackmore’s record of the case continues -
Two petitions were immediately presented, praying the House to annul the election and to declare Mr. John Carr to be duly elected. Mr. Speaker informed the House that it was usual when a member resigned to order the Speaker to issue a writ for an election to fill the vacancy ; at the same time the resignation received could not affect the rights of the petitioners ; it would be for the House to consider whether they would declare the. seat vacant or not when they had the report of the Court to be appointed by them. At a later period of the day the Treasurer moved that a vacancy had occurred by reason of the resignation of Mr. Trimmer, and that the Speaker be directed to issue a writ. But Mr. Speaker reiterated the opinion that Mr. Trimmer’s resignation could not take away Mr. Carr’s right ; and as Mr. Carr and the electors had petitioned the House with a view to having; the election decided by the proper Court the House ought not to take any action, beyond referring the matter, until they had the report of the Court. The petition was referred to the Court of Disputed Returns, which certified that Mr. Trimmer was not and Mr. Carr was duly elected.
And here is the point to which I wish particularly to direct attention -
But Mr. Trimmer is entered on the rolls of Parliament as ceasing to be a- member by resignation on 31st March, though as has been shown his resignation was not accepted.
Although he was unseated, and another man given the seat, he was entered on the rolls of Parliament as ceasing to be a member on the date on which his resignation was received. That, I think, is rather an interesting case. According to the practice of the House of Commons, there can be no doubt that no member can defeat the object of a petition by resigning.
– He ought not to be allowed to resign pending a petition.
– The honorable senator might just as well say that he should not die.
– I have no doubt that this Bill will be passed by both Houses of the Federal Parliament, and that we shall have the decision of the High Court on the matter. That decision I am willing to accept. I may say just as honestly that if the decision on the report of the Committee of Disputed Returns and Qualifications had been against me, I should not have been satisfied to accept the verdict given by a majority of my political opponents in the Senate. I shall, however, be prepared to accept the decision of the High Court, which will settle the point involved in this case for all time. As Senator W. Russell has alluded to the matter, I wish to say in regard to my own position in connexion with it, that I have not in any way sought the position I occupy. My name was not mentioned in connexion with the vacancy up to within a day or two> of the date on which the two Houses of the State Parliament met to make their selection. I do not mean- to say that I had not been approached in the matter.. As soon as the vacancy occurred I was approached by prominent members of - different parties in the State Parliament, and urged to allow myself, to be nominated. I persistently declined. I can assure the Senate that, as my colleagues from South Australia know very well, I had no desire at that particular time to enter the arena of active politics. It was not without some sacrifices that I consented to allow myself to be nominated for the vacancy. I was approached not only by members of my own party, but by members of the Independent Party and members of both Houses of the State Parliament, to allow myself to be nominated. I may here point out that the Labour Party in the South Australian Parliament were not ‘able of themselves to secure my election, since at a joint sitting of both Houses of the Parliament, and of over sixty members, they represented only about one-third. It was only by the conjunction of the Labour and1 Liberal Parties in the State Parliament that my election was secured. As I have said, I had to make some sacrifices to accept the position. I had to give up mv position , : a. trustee of the Savings Bank, with which I was connected for several years, and ir» which I took a deep interest. I had also to give up the position of- Chairman of various Wages Boards iri connexion with which I think I may without undue modesty claim that I did some good and successful work in reconciling conflicting views of employers and employes, in connexion with cases on. which I was called upon to adjudicate. It was also inconvenient for many private reasons that I should take the position. I can only say in conclusion what I said at the first public gathering that I attended after my election, that while I considered it “a high honour te* have been elected by a majority of the members of the State Legislature, of which I had myself been a member for many years, I recognised that there was a higher tribunal than the High Court or the Parliament of the State, and that was the people, the highest tribunal of all. I said also that if the matter was to be decided by the High Court, and it was thenas I understood going before the High Court, and the decision of that tribunal was that there should be an appeal to the people, I should welcome it, and be prepared to abide by the result.
Sitting suspended from 6.26 to 7.45p.m.
– I shall not occupy the time of the Senate at any length, but there are one or two points to which I wish to refer, and which up to the present time have not received much consideration. Prior to dealing with them, I may state that I should not have risen in my place had it not been for the accusation made from the other side that Senator O’Loghlin is here with a “ tainted title.” Now, I consider that those words used concerning a senator who is” here as the representative of the people of South Australia, were an absolute slander upon the people of that State and upon their representatives in Parliament, who would not have been guilty of sending to the Senate a person with what might fairly be described as a “ tainted title.” The honorable senator who made use of those words did not employ them at random, because no member of this Senate is more capable of choosing his language.
– He was excited.
– A gentleman of his experience will not allow his tongue to run away with. him. I am rather afraid that the words were used with the object of applying to Senator O’Loghlin a term of opprobrium that might stick to him in some way or other. Leaving that point, I wish to. draw the attention of the Senate to section 44 of the Constitution, which provides that -
Any person who - (1). Is under any acknowledgment of allegi ance obedience or adherence to a foreign power or is a subject or a citizen or entitled to the rights or privileges of a- subject or a citizen of a foreign power ; or (II.) Is attainted of treason …. ;or (III.) Is an undischarged bankrupt or in solvent; or (IV.) Holds any office of profit under the Crown … ; or (V.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Senator Symon might have been justified in describing any person who came here under any of those disadvantages as holding a tainted title. But it is not possible to say that Senator O’Loghlin, under the circumstances in which he was sent to the Senate, came here under the slightest suspicion that any of those disabilities applied to him. Suppose that a candidate stood for the Senate, and was elected; and that after his election it was discovered that he had sworn allegiance to a foreign power, and had not renounced it. Suppose that a petition was lodged against his return. In that case, would there have to be a fresh election, or would not the new senator have to be chosen by the Parliament of the State concerned?
– In that case the person originally returned would not be eligible.
– He would not be eligible, but the fact might not be discovered for a considerable time after. Would not such a case be dealt with under section 15 of the Constitution, and the substitute be elected by the Parliament of the State? Senator Symon stated that the bed-rock on which he based the whole of his argument was that the senator mustbe chosen by the people. I have instanced a case where a man might be returned by an overwhelming majority, and yet be ineligible to sit in the Senate. Again, suppose that a senator during his tenure of office became insolvent. . My opinion is that section 15 of the Constitution was inserted expressly to deal with such cases. At any rate, I am quite sure that the framers of the Constitution, when explaining it to the people, and urging them to accept it, did not tell them that in the event of the seat of a senator becoming vacant, the country would have to go to the expense of a fresh election in every case. Had they done so, a very large number of those who voted for the acceptance of the Constitution would have hesitated to do so, because they would have felt that to hold a special election for the choice of a senator would be altogether too expensive a matter. Again, it is possible that a person attainted of treason in some part of the British Dominions might come to Australia and be elected to the Senate. It is possible that the fact that he had been attainted of treason would not be discovered for a considerable time afterwards. What would happen in such a case ? Would there have to be an election by the State? We have- had, in, some of the States, cases of Americans who have come to Australia, have failed to renounce the oath of allegiance to the Republic of America, have been returned to a State Parliament, and have had to vacate their seats. The same might occur in relation to the Senate. In such a case, I maintain that the people would have chosen, but chosen wrongly. At the last Senate election in South Australia, the people made their choice, but through the blundering of officials the election was upset. The Crown law officers of the Commonwealth and of the State, fortified by the best legal opinions that could be obtained in Adelaide, advised that there should be an election by the State Parliament.. Senator O’Loghlin is here with that title. If there is a flaw in the Constitution, let us have it amended, and” make the meaning clear.
– The Senate has already agreed to refer the matter to the High Court.
– The Senate has passed a resolution instructing the Government to prepare a Bill, but does the honorable senator contend that those who object to the form of the Bill have no right to protest against its provisions? Probably the honorable senator himself may, in Committee, move or support an amendment. I hold that I have al perfect right, even “ though a resolution has been passed by the Senate in a certain direction, to express my opinion on this Bill, and as to what I thinK is the right course to adopt. I commend the considerations which I have submitted to the Senate.
-5Sl- - I should not have taken part in the debate except for the tenor of the remarks made this afternoon by an honorable senator, who, I thought, had a very good innings when this matter was last under consideration . When the report of the Disputed Returns and Qualifications Committee was submitted to the Senate, the Chairman made a very strong speech of a partisan character. Halving then exercised his opportunity to present the question from his own stand-point, I should have thought that he would have been content to allow the present Bill to go through without indulging in any more of that kind of advocacy. For my own part, I have tried from! the first - to deal with this matter apart from party considerations. I recognised that if the party element were introduced into !the question, it would be very hard indeed to do justice to it. But because Senator. Turley and I took up that attitude it has been said that we recognised the soundness of a report which from the first we were wholly against. Those who have made that charge against us would have done us and themselves much more credit if they had omitted any reference to us. If we had been disposed to treat this matter from a party aspect, we knew all along. that we had the numbers behind us, and could have settled the question in our own way. But we refused to take advantage of our numbers. We have, however, received no credit for that, and an attempt has been made to foist upon us an adherence to a report to which every member of the Committee ‘must have known that we were entirely opposed. Because we refused to take up a partisan- attitude, we have been charged with giving countenance to a report which could not be looked upon as other than a purely partisan document.
– There is party written upon every paragraph of it.
– I should have had much more faith in the report if those who supported it had stood by it. But as a matter of fact, the report was so absolutely one-sided and ridiculous that I did not think it worth while to challenge a line of it.
– It is quite true that the honorable senator did not challenge a line of it.
– I did the best I could to hasten the matter, so that it might be dealt with by the Senate, when there would be an opportunity of showing the partisan nature of the report and so discrediting it in the most effectual way. Did Senator Dobson himself stand by the report? Did Senator Symon stand by it? No, they ran away from it the very moment they saw that they had not the numbers behind them. Senator Turley and -I’ were from the beginning determined to do our utmost to have the matter referred to the High Court. We considered that that was the only satisfactory method.
– A number of senators on this side agreed with that view.
– There may have been some. I do not wish to cast aspersions upon those honorable senators opposite who may have honestly supported that attitude. The most regrettable aspect of to-day’s debate has been the personal references to Senator O’Loghlin. Very few could take exception to that honorable senator’s conduct in this Chamber. His attitude towards those who are in opposition to him has not been that of a bitter partisan^ and, in view of the position which he occupies at present, it was a great mistake on the part of Senator Symon to make the personal references to him which he made to-day. I am convinced that a satisfactory solution can only be arrived at in this case by sending the whole question to the High Court, in order that it may obtain there what apparently it cannot obtain in this Chamber. When a question of this kind has to be fought out on the floor of any legislative Chamber, it is settled, not according to the merits of the case, but according to the numbers of the political parties there represented.
– That is rather a reflection on the Senate.
– Whether it is a reflection or not, I am sure that ninetenths of the members of this Chamber will agree with me. I hope that this will be the last we shall ever hear of petitions of this kind coming before the Senate. When the Electoral Act was passed I was under the belief that we had so arranged matters that disputes of this kind would no longer come before the Senate, and I must confess that when the Disputed Returns and Qualifications Committee were appointed, I wondered what they were appointed for, because I understood that the Electoral Act had entirely done away with their functions. I hope that this Bill will be effectual in referring all such disputes to the Court, and that the Senate will have no more of these regrettable incidents. to settle.
– The more this case is discussed, the more extraordinary it appears to be. Any one who knows its history will agree that, while the petitioner may have the- law on his side, the Parliament of South Australia, and Senator O’Loghlin, who is here as their choice, have all the facts on their side. It is admitted that, but for the negligence of the returning officer, the late Mr. Crosby would have been declared elected. Seeing that Mr. Crosby died, and that the people had declared, so far as they were able to do so, that Mr. Crosby was their choice, his opponents, the National Defence League, ought to have been satisfied in the circumstances to let the matter stand where it did. Senator Symon declared this afternoon in very strong and eloquent terms in favour of an appeal being made to the people to enable them to choose their man. But Mr. Crosby was unmistakably the choice of the people.
He was not defeated because the people did not vote for ‘him. He was defeated, I will not say because of an intentional oversight, but because of neglect on the part of the returning officer. I hope that that man will never again be placed in charge of an election. In any case, the very thing which Senator Symon seems to desire so anxiously had been done. The people had declared their preference for Mr. Crosby by a majority of votes. As he died, it was unmistakably the duty of the South Australian Parliament, under the Constitution, to fill the vacancy ; but, of course, the National Defence League took advantage of a technicality. The returning officer did not initial’ certain ballotpapers. A number of electors were deprived of their votes. Mr. Crosby was fourth on the list, and Mr. Vardon was declared elected. That was the position . up to a certain point. We know the history of the affair since, and Senator O’Loghlin is here to-day, but not with a “ tainted title.” That epithet came with a very bad grace from Senator Symon. Senator O’Loghlin has been duly elected by the South Australian Parliament according to the Constitution. That Parliament took action only after the South Australian Government had been fortified by the opinions of eminent legal authorities, and believed that it was doing what was right under the Constitution. Its action was perfectly constitutional, and, so far, Senator O’Loghlin’s right to sit here is without taint. I intend to vote for the second reading of the Bill. As the Senate declared on a previous occasion that the whole matter should be referred to the High Court, it is not at all desirable that we should go back upon that decision now. Previous to that decision, however, I was prepared to take my stand upon the validity of Senator O’Loghlin’s election, and to vote for declaring his election to’ be perfectly valid. I have given notice of an amendment upon the Bill involving a matter which has relation to the principal Act, but not to the subject-matter of the Bill itself. Before I can move that amendment I must give notice of an instruction to the Committee. But I shall not be able to do so if the second reading is carried to-night, except by leave of the Senate. If honorable senators feel that I ought to have an opportunity of ventilating the matter, I shall be very glad if they will give me leave to move that instruction.
– I intend, to ask the honorable senator not to persist in that amendment.
– The object of the amendment is to enable members of State Parliaments to contest Federal seats without first resigning their seats.
.- If any justification was required for the introduction of this measure, it has been completely supplied by the debate which has taken place this afternoon. Even at this attenuated stage of the debate, when feeling has become more or less exhausted with regard to the question, Ave find that we could not deal with it without the introduction of a heated party conflict and even of the personal element. This shows conclusively, no matter how we may seek to disguise it, that neither this Senate nor any other political body is judicially qualified to deal with a matter of the kind. We felt that that was so when we passed the Electoral Act. We recognised then, that in fairness to ourselves and in justice to the parties concerned these questions could not be judicially dealt with by any branch of the Legislature, but should be remitted to a judicial tribunal which was free of partisan feeling. Even if that was the only ground, the introduction of this’ measure has been completely justified. But the position goes much further. After deliberate and lengthy discussion, the Senate resolved that complicated questions of constitutional law were involved, and that the petition should therefore be remitted to the High Court. Senator McGregor and Senator W. Russell have delivered very heated speeches this afternoon. .
– Theirs were not the only speeches that were heated.
– I admit that. I should, have said that they, amongst others, delivered heated speeches, but it is only fair to them to say that I was aware of their personal views. They most strongly protested to me against the introduction of a Bill which they considered was of a retrospective character, and they pave me notice of their intention to oppose it. I accept their intimation, not as an indication of an intention to seek to defeat the Bill, but as a protest, recognising, as they are obliged to do, that they must yield to the almost unanimous resolution of the Senate that this question should be referred to the Court of Disputed Returns. I do not be lieve for a moment that they intend to oppose the Bill at any stage with any degree of bitterness. Indeed, having regard to the fact that they are practically alone in-, active opposition to its enactment, I do not see how in decency they could do so.
– The honorable senator wanted to get the Bill put through on Friday without discussion.
– I made a promise to the Senate which I intend to carry out.. Having - with, I am prepared to say, some little help from me - agreed to an amendment which was congenial to myself, the Senate resolved that “the petition of Mr. Vardon should be referred, to the Court of Disputed Returns, and in pursuance of that, resolution I undertook to introduce this measure with all reasonable expedition, and to seek to have it passed into law so that the question might be duly remitted to the Court as desired. There have beere one or two objections made, which I am somewhat at a loss to understand. The first objection is that the proper course to follow is to alter the Constitution. I assure honorable senators that that is not the proper legal course to pursue, becauseunder the circumstances an alteration ot the Constitution is not required. That is not a mere dictum on my part, but is part and parcel of the judgment of the High Court in the mandamus case. Under section 47 of the Constitution we have the power to deal with this matter, and the High Court gives us guidance and assistance in its judgment, where it says -
It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia- in the Senate is one of the questions to be decided by the Senate under section 47 “unless the Parliament otherwise provides.” Parliament can, no doubt, confer authority to decide such a question upon this Court, whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve our opinion upon it.
Senator McGregor, and I think one or two others, will see that, “after consideration, the High Court has expressed the view that it is within the power of the Parliament to say how the petition should be dealt with.
– Certainly; I agree with that.
– Surely, then, it must be obvious to “my honorable friend and to other senators that the Parliament is only asked to exercise its power under section 47 of the Constitution.
– Yes; but we can also amend the Constitution, and make a reference to the Court unnecessary.
– Why should we amend the Constitution, when it empowers the Parliament to make this particular amendment? My honorable friend will see that it is totally unnecessary.
– If it were made clear in section 15 of the Constitution that every election was to be a popular one, or that every election which did not take place at a certain time was to be a casual one, the question would never go to the Court.
– My honorable friend will see that under section 47 the Parliament has the right either to decide the -question for itself, or to declare, by legislation, how it shall be decided.
– That is clear enough.
– If that is clear enough no my honorable friend, he will see that no amendment of the Constitution is necessary.
– If the Constitution had been explicit this difficulty would not have arisen.
– I have sought to show my honorable friend that Parliament is only asked to exercise its power under the Constitution, and that consequently no amendment of the Constitution is necessary. I do not desire to enlarge any further on the matter. This Bill is brought in in terms of the Senate’s direction, if I may so strongly put it, and of my undertaking that it would be introduced. To suggest for a moment that we should go back upon the resolution is absurd.
– The Honorable senator wanted to get the Bill put through without debate on Friday, and that was why we objected.
– Surely my honorable friend must be labouring under a most serious misapprehension. When Senator McGregor asked for an adjournment of the debate I, for one, said “ Yes.”
– But in what way did the honorable senator say that?
– By voting for an adjournment.
– The honorable senator could not help himself.
– I am very much obliged to my honorable friend for his remark. I trust that I am at liberty to vote as I think proper. I voted for an adjournment of the debate, and therefore it does not lie in the mouth of my honorable friend to reproach me for having given that vote. The measure carries out the wish of the Senate, and I hope that, having made their protests, my honorable friends will see fit to withdraw their opposition so that the Bill may be passed with the same unanimity as that with which the Senate came to its resolution. I desire, in conclusion, to mention that so soon ‘as the words were struck out of the motion of the leader of the Opposition for the adoption of the report of the Committee, I was only too glad to fall back upon what, as was known to honorable senators, was my original idea, and that was that this constitutional question should be referred for decision to the Court of Disputed Returns. I trust that throughout it’s stages the measure will receive unanimous support from honorable senators.
Question resolved in the affirmative.
Bill read a second time.
– To-day Senator Stewart has given notice of his intention to move the following motion -
That it be an instruction to the Committee of the Whole on the Disputed Elections and Quali- fications Bill to consider an amendment for the purpose of repealing section 96 of the Commonwealth Electoral Acts 1902-5.
Under the Standing Orders as they existed some time ago, it would not have been possible for the Senate to give an instruction of that character, but in consequence of a ruling by my predecessor, the Senate, on the recornmendafion of the Standing Orders Committee, adopted two new standing orders. Standing order 319A reads -
An instruction can be given to a Committee of the Whole on a Bill to amend anexisting Act, to consider amendments which are not relevant to the subject-matter of the Bill, but are relevant to the subject-matter of the Act it is proposed to amend, provided that such motion shall be carried by at least fifteen affirmative votes.
Standing order 319B says -
An instruction to a Committee of the Whole requires notice, and can only be moved before going into Committee on any question.
It appears to me perfectly clear that under standing order 319A Senator Stewart can submit his motion for that particular instruction, as the Bill proposes to amend the Electoral Act. But I find that in standing order 109 it is provided that -
No senator shall, unless by leave of the Senate, unless it be otherwise specially provided by the Standing Orders, make any motion, except in pursuance of notice, openly given at a previous sitting of the Senate, and duly entered on the notice-paper.
The question arises whether it will be sufficient for the honorable senator to move the motion by leave of the Senate, without having given the full time of notice. Standing order 31 ob provides specifically that an instruction to a Committee of the Whole requires notice. At first I was inclined to think that it would be necessary for the Senate to suspend the Standing Orders; but, in view of the wording of standing order 109, it appears to me now that it will be competent for the Senate, if it sees fit, to give Senator Stewart leave to submit the motion if he so desires.
– I ask the leave of the Senate to submit the motion.
– If I may have the indulgence of the Senate to say a few words, I would appeal to Senator Stewart not to proceed with the motion. This Bill has a specific object, and it has its limitations. It was brought in in deference to the express resolution of the Senate. I do not see how it could be done this session, but certainly next session it is the intention of the Government to introduce a Bill to amend and consolidate the electoral, law. If Senator Stewart should attempt to introduce his amendment, and other honorable senators should submit any amendments, he will see that the object of the measure would be to some extent frustrated, and that it would lead to an unwarrantably lengthy debate. In view of my assurance that we intend to introduce an amending Bill next session, and also in view of the scope of this measure, I ask mv honorable friend, if he can see his way, not to- press his proposal.
– The consent of the Senate will have to be unanimous. Is it the will of the Senate that Senator Stewart shall have leave to submit a motion for an instruction ?
– I ask my honorable friend to withdraw his request.
– Then we cannot con: sent to the leave being granted.
– There being an objection, the honorable senator cannot move the motion.
In Committee :
Clause 1 agreed to.
Clause 2 -
Amendments (bv Senator. Best) agreed to-
That after the word “ is,” line 7, the words “ now in or “ be inserted.
That after the word “ Senate,” line 7, the words “or in respect of which the Senate has resolved that the question involved is proper to be referred to the High Court” be inserted.
That after the word “shall,” line 21, the words “ have jurisdiction and shall “ be inserted.
– I promised honorable senators that I would be prepared to move an amendment . referring this particular matter to a Full Court of at least three Judges, in accordance with a suggestion which I considered excellent, and which I announced mv readiness to accept. I therefore move -
That after the word “ petition,” line 22, the following words be inserted : - “ and the questions raised thereby but such jurisdiction shall be exercised by a Full Court of at least three Judges.”
– Is that to apply in all cases?
– No, in this particular case only.
Amendment agreed to.
Amendment (bv Senator Best) agreed, to-
That after the words “ two-hundred-and-one,” line 24, the words “of the Principal Act” be inserted.
Senator Major O’LOGHLIN (South Australia) [8.36]. - Before we pass from clause 2 I should like to have the question cleared up as to who is to bear the expense of this appeal to the High Court. If there is any excuse at all for unprecedented and extraordinary legislation of this character, it is that which has been advanced by honorable senators in expressing the general desire that the high constitutional question involved should be settled by the highest Court in the land. But it is hardly fair that individuals should be put to expense in the settlement of a constitutional Question in this way. For myself, I have only to say that I have no money to waste in feeing lawyers in appealing to the High Court to settle a principle of this kind. I do not think that it would be fair to myself, to Mr. Vardon, or to whoever else might test the matter before the High Court, that we should be put to the expense which wouldnecessarily be involved in the argument of the matter before the Court. I think the “Vice-President of the Executive Council pointed out that the High Court indicated that they are prepared to deal with the matter. I am inclined to infer from that that the honorable senator meant that the High Court was prepared to give a decision on this particular point at the time the mandamus proceedings were before it, but, recognising that it was a matter for the Senate, they refrained from doing so. ‘ I think the words they used were that they reserved judgment upon it. If that be so, and they merely reserved judgment, is there any reason at all why further expense should be incurred in connexion with this case? I. should like to hear the Vice-President of the Executive Council on the subject. If important sections of the Constitution require to be authoritatively interpreted, it should not rest upon individuals to bear the expense involved.
– What would the honorable senator suggest?
– I wish to know what view of the matter is taken by the Vice-President of the Executive Council. Personally, I protest against being put to expense to test a constitutional question in this manner.
– Does the honorable senator suggest that there should be no argument, or that if there is argument, the expense involved should be borne by the Commonwealth?
– What suggested itself to my mind was that theHigh Court, having had the whole matter before them, and having, as they said, reserved judgment, there should be no reason for further expense in connexion with the case. Of course expense has been incurred already. Mr. Vardon was put to expense, and the case was decided against him. A harder case still was that of Mr. Blundell, who lodged the original petition, successfully established his case, and still had to bear considerable expense. I think this is the proper time to raise the question. When the mandamusproceedings were before the High Court there was some question as to who should defend the matter, and I told the Attorney-General and the members of the State Parliament that asI was not made a party to those proceedings I did not intend to intervene, and was willing to. let the High Court decide the question raised without argument. I was not prepared to take any steps to prevent the Court ordering an appeal to the people or deciding the case in any way they thought fit. I do not think it is fair that individuals should be called upon to bear the expense of testing such a matter before the High Court.
– The honorable senator has raised a question which I think can not easily be provided for in this measure. It may be the misfortune of Senator O’Loghlin, who no doubt quite innocently, so far as he is concerned, was elected to the position he holds, that any one should challenge his right to it: but that is not a matter with which we can interfere.
– That is what this Bill was introduced for.
– No. I point out to the honorable senator that within forty- days after the election of any member of the Senate it is competent for any one to challenge his right to the position to which he claims to have been elected. So in the case of any election under section 15, it is competent for any one to challenge the election in the ordinary way. Persons do not as a rule care to have their right to a position challenged, their property claimed, or any rights alleged against them involving them in litigation. But that is their misfortune, and for us to attempt to provide for this specific case by proposing the adoption, of some out-of-the-way course with regard to the payment of costs would be a very unusual proceeding, and one which I think the Committee could hardly entertain.
– May I remind the honorable senator that the decision sought under the Bill will not apply merely to my case, but will decide the question at issue for all time.
– My honorable friend will see that the same may be said of a large percentage of law cases. The decision in one case after another follows on some decision in a case which may have been tried at a very remote period before, in connexion with which the original litigants had to be at the expense of securing the interpretation of the law and the ascertainment of rights. In this particular matter, I think we may be permitted to expressthe opinion that the High Court will be very fully seized of all the arguments having regard to the fact that the mandamus proceedings tookplace before the Full Court of five Judges of the High Court, and was argued for a period of five days by learned counsel representing, not only Mr. Vardon, but also the intervenant, the Attorney-General. and, of course, the Governor of the State of South Australia. In all the circumstances I think Senator O’Loghlin will see that so far as any parties interested in the case are concerned, there should be occasion for but little expense, having regard to the full knowledge which the Court has of all the legal aspects of the case.
Senator Sir JOSIAH SYMON (South Australia) [8.44]. - I rise only to say in a word that I sympathize with what Senator O’Loghlin has said. The position in this case is rather peculiar.
– Special legislation has been introduced to deal with it.
– No, I do not take that view. I take the view that I have . expressed before, that this is not special legislation. It is merely the means by which the Senate refers a case to the High Court which individuals could refer to that Court without legislation. There is nothing special about it. I sympathize with much that ‘has been said. The origin of the whole procedings was the blundering of officials acting under the Commonwealth. Then there was a petition which brought’ the matter before the Court of Disputed Returns, upon which a certain order was made that was the foundation of subsequent proceedings before the Senate. In consequence, steps were taken which I think were erroneous, but which other honorable senators think were quite right. Those steps were taken upon an opinion given by the Attorney-General of the Commonwealth - that is to say, practically at the instance of the Government. We have a precedent in relation to the matter in Chanter’s case. I believe I am correct in saying that in that case a vote was subsequently passed by Parliament reimbursing the parties for the expense incurred.
– Mr. Chanter says that the proceedings cost’ him £1,000, in addition to the vote.
– I thoroughly agree with Senator Best, that it is a mistake to insert in this Bill an amendment in relation to reimbursement. That matter could not be settled until the case is disposed of. We do not know what parties the Court will direct to appear before it. The whole procedure is very properly left in the hands of the Court. I think the Government have acted wisely in so providing. When the matter is disposed of it will be for the Government to consider, as in the former case, the questionof reimbursing the parties whom the High Court may direct to appear before it. It would be out of place to provide for that matter here. We cannot provide for the expenditure of money.
– I did not suggest that.
– Already a considerable amount of expense has been incurred. I do not know what Mr. Vardon’s expenses have been, but they must be fairly large. But I wish to make a suggestion to my honorable friend. Every one is desirous that the expenses should be minimized as much as possible. It might be well to add a paragraph to the clause that the President or the Clerk shall certify the documents and Journals of the Senate which must accompany the petition, and that the statements in the petition itself are admitted. We might add some such words as the following -
For the purpose of hearing and determining the petition the statements in the petition shall be takenas admitted and the Clerk - or the President - shall certify the documents and the Journals of the Senate.
In the Committee our proceedings were simplified bv the fact that Senator O’Loghlin admitted the statements in the petition, so that there was no necessity to call evidence, and that the Acting Clerk,
Mr. Boydell, produced certain certified documents and the Journals.
– Were the statements in the petition admitted?
– Yes; both parties admitted them.
– That would save expense.
– To insert such a provision would save the calling of witnesses from South Australia.
– Suppose the Court wants to hear more evidence?
– The Court would be able to call more evidence if it wanted it.
– I am very glad to hear the suggestion made by Senator Symon on behalf of the unfortunates in this case, that the expense should be minimized as much as possible. There ought to be an understanding that when the matter is finally determined an adjustment of expenses with the parties shall be made by the Government. Neither Mr. Vardon, Senator O’Loghlin, nor the electors of South Australia are responsible for the position in which we find ourselves. But suppose another election is ordered. Who will have to bear the expense of that? Would it be the petitioner? If so, it will be very unfair to him. If, on the other hand, Senator O’Loghlin were involved in expense it would be very unfair to him. I suggest that progress might be reported in order to give honorable senators an opportunity of seeing an amendment in print to carry out Senator Symon’s suggestion.
– There is no doubt that all the parties concerned in this case should be protected against undue expenditure. But we have to be careful not to insert an amendment applying generally when we merely mean that it shall apply to this particular instance. Do we intend to deal with a particular case in regard to costs, or with general cases? We should make the’ matter clear.
– I quite fall in with the views expressed bv Senator Symon. It is desirable to minimize expenses in. this case. As Senator Symon, who is in a position to know, assures me that the statements in the petition were admitted by the parties, there is not the slightest doubt that that fact will minimize expenses considerably. I have prepared an amendment which I will propose, and which can be put into print for the consideration of honorable senators. I move -
That the following new sub-clause be inserted : - “ 7. On the hearing of the petition the statements therein shall be taken to be proved oradmitted, and the Journals, papers, and docu-ments, except the report of the Committee of Disputed Returns and Qualifications, shall be admitted upon the certificate of the Clerk of the Senate.”
– Why not say “the President of the Senate”?
– These things are usually done bv the Clerk.
– I have no particular objection to the amendment, but I think that we have been rather drawn off the line of thought to which Senator O’Loghlin’s remarks directed us. I would point out that this amendment aims at the limitation of expenses. Senator O’Loghlin’s point was not as to whether the expense would be great dr little, but as to who was to bear it. We have drifted from that into the discussion of quite a minor point. We appear to be moving a mountain, and, possibly, producing a mouse. The parties who admitted before the Committee of the Senate the facts in the petition will, in all probability, be equally ready to admit them before the Court, and the expense of summoning the Clerk of the Senate to carry the documents to the Court is not worth talking about. As the whole trouble has arisen through the blunders of officials, who were the agents of the Government, the Government ought, when the proper time arrives, to shoulder the expense, as has been done in other cases, both Federal and State.
– There is a great deal in that point, but it is not reasonable to raise it -now. It cannot be dealt with in this Bill.
– I do not propose to put it forward as an amendment, but it is reasonable to voice my views before the time arrives to “foot the bill.” It is better, to make this statement before we know who the parties are whose expenses will have to be reimbursed. The view that the Government should pay the expenses is, I think, supported by a majority of honorable senators.
– To decide it now might encourage persons to become parties.
– Under this clause the Court itself nominates the parties, and, therefore, there can be no danger of other persons rushing in. The amendment now before the Committee is like “ a chip in porridge “ - it is not worth discussing.
– The amendment appears to mean that the statements in every petition that comes before the Senate are to be taken as correct.
– Clause 2 only deals with this pending petition.
– That is the point about which I wished to be clear. If that is so, I am satisfied. I quiteagree with the Government as to the question of costs.
Amendment agreed to.
– I do not want the clause to be passed until we can see it, with the amendment, in print.
– I have stated that I will recommit the clause if necessary.
Clause, as amended, agreed to.
Senate adjourned at 9.5 p.m.
Cite as: Australia, Senate, Debates, 6 November 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071106_senate_3_41/>.