3rd Parliament · 3rd Session
The President took the chair at 10.30 a.m., and read prayers.
page 1758
– I desire to ask the leader of the Senate, without notice, whether he has received by this morning’smail, or, if not, whether there has beenbrought under his notice a post-card issued by the Sydney Bulletin, and depicting scenes at the suggested Capital Sites - one scene showing the beautiful Snowy River at Dalgety, the site which wasselected by the Australian Parliament, and’ another scene showing the Cotter Creek, which is said to be a miserable trickle.
-I point out to the honorable senator that he cannot make a statement in asking a question.
– I am only statingwhat is printed on the post-card.
– Order ! The honorable senator is now attempting to discuss indirectly a question which is under the consideration of the Senate. I do not object to him asking the Minister if he has seen this publication from the Bulletinoffice.
– I bow to your ruling, sir, but I was merely going to reactwhat is printed on the post-card.
– I ask the honorable senator not to do so. I have no doubt that honorable senators will read what is on the post-card.
– I shall give the leader of the Senate an opportunity of seeing it.
– I have seen the postcard, and it seems to me to be simply irresistibly in favour of Dalgety.
page 1758
– I beg to ask the Vice-President of the ExecutiveCouncil, without notice, whether he will have printed without delay the despatchrelating to the Navigation Bill, which was laid upon the table yesterday, so that it may be in the hands of honorable senators: when the consideration of that measure is resumed on Wednesday next? Will he also have printed the Prime Minister’s reply, which appears in the press this morning?
– I shall be very glad, by leave of the Senate, to move forthwith that the despatch be printed, so that it may be made available to honorable senators quickly. Thereis another despatch which I have not yet laid upon the table, and which refers to resolution No. 9 of the Navigation Conference. I thought it was only fair that the despatch, and our reply thereto, should be tabled at the same time. It is a very short despatch, which I shall endeavour to have ready for presentation to the Senate by Wednesday or Thursday next. I beg to move, with concurrence -
That the despatch from the Secretary of State for the Colonies, No. 326, dated the 18th September,1908, together with the cablegram in reply thereto, be printed.
Question resolved in the affirmative.
page 1759
SenatorFlNDLEY. - I desire to ask the Minister representing the Minister of External Affairs, without notice, a question in respect 10 the following advertisement in the Gazette of the 24th October -
Department of External Affairs,
Melbourne, 16th October, 1908.
His Excellency the Governor-General in Council has been pleased to approve, in accordance with Treasury Regulation No. 61, of the expenditure of the sum of£317 13s. iod., without calling for tenders, in the purchase of 4,000 copies of the Annual Review of the Daily Shipping Index of Australasia.
Alfred Deakin,
Minister of State for External Affairs.
My question is, what special information the publication contains which will be advantageous to the Commonwealth, what moved the Government to pay at the rate of about1s. 7d. per copy for it, and what they propose to do with the 4,000 copies which they have?
– I cannot say that I have seen the publication. But I think it contains some very useful and valuable information, particularly in regard to the ports of Australia. If my honorable friend will give notice of a question I shall be very glad to supply him with any further information which he may desire.
page 1759
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
– I understand the Minister to say that the men are expected to be competent AB’s, whilst the advertisement says that the fishermen-
– Order ! The honorable senator is now proceeding to discuss the reply which he is not entitled to do. If there is any portion of the reply which, he desires to have made clearer he is at liberty to put a question to the Minister.
– With all due deference to you, sir, you would not permit me to do so.
– The honorable senator alluded to what was stated in the reply, and then began to refer to what was stated in the Gazette, which is practically initiating a discussion on the subjest. If he will aska question without referring to the advertisement, he can get all the information which he wants.
– It would make my question clearer if I were allowed to refer to the advertisement.
– I hope that the honorable senator will follow the advice I have given to him.
– I shall take another opportunity to bring up the matter.
– Arising out of the reply, I desire to ask the Minister if it is intended that the fishermen shall have the qualifications which are set forth in the Gazette, in addition to the qualifications of an AB.
– That is what I wanted to know.
– I do not know that I am at’ liberty to deal with the matter. The notice in the Gazette says -
Extended and varied experiences with different methods of capture. Ability to mend fishing nets properly and with expedition. Preference will be given to applicants with sea-going experience.
It does not appear that it is necessary that the men should have the AB qualification.
– Just now the honorable gentleman said that they must.
– The nonorable senator has made a mistake. I did not say that the men were to have the AB qualification. WhatI said was, that they were to be paid at the highest rates for that qualification.
page 1760
asked the Minister of Home Affairs, upon notice -
The successful applicant will be required to perform all duties connected with the Post and Telephone Office, Money Order and Savings Bank, and to effect the delivery of telegrams.
The business must be conducted in the present premises, and the person appointed must devote the whole of his or her time and attention to the work of the office, and shall not be connected with the trade of the town or locality.
A fidelity bond of£400 will be required, but the Department will arrange this bond, and the premium payable in respect thereof, viz. : - 2S. 6d. per centum per annum will be deducted from the allowance “ ?
– The answers to the honorable senator’s questions are as follow : -
page 1760
Is it a fact that there is published in each
State of the Commonwealth, except South Australia, by a New Zealand firm, a publication entitled a “Post Office Directory?”
– If the honorable senator will repeat the questions on a later date, I may have the information which he desires to get.
page 1760
Debate resumed from 29th October(vide page 1688), on motion by Senator Best - “ 1. That the Senate do forthwith proceed to determine the opinion of senators as to the site for the Seat of Government of the Commonwealth.
That the selection be made from sites nominated, without debate, by honorable senators, piovided that no nomination shall be received unless it is supported by at least two senators, in addition to the senator nominating, rising in their places.
That the Senate do forthwith proceed to the nomination of sites, and that the President do declare the time for nominations to be closed as soon as sufficient opportunity has, in his opinion, been given to receive nominations. .
That an open exhaustive ballot be taken on - Thursday, 5th November, without debate, in the following manner : -
Ballot-papers shall be distributed to honorable senators containing the names of the sites nominated.
Senators shall place a cross opposite the name of the site for which they desire to vote, and shall sign the paper.
The ballot-papers shall then be examined by the Clerk.
The total number of votes given for each site shall be reported to the Senate after each ballot.
If, on the first examination, any site proves to have received an absolute majority of votes, the President shall report the name of such site to the Senate, and such site shall be deemed to be the one preferred by honorable senators.
If no site receives an absolute majority of votes, then the name of the site receiving the smallest number of votes shall be reported to the Senate, and shall be struckout.
If any two or more of the sites shall receive an equal number of votes, such number of votes being the smallest, then the Senate shall ascertain in the customary manner which of such sites should, in the opinion of honorable senators, be further balloted for, and the name of the other, or others, shall be struck out.
Further ballots shall then be taken on the names of the remaining sites, and the name of the site receiving the smallest number of votes in each successive ballot shall be reported to the Senate and struck out in the manner aforesaid, until one of the sites receives an absolute majority of votes.
When one of the sites has received an absolute majority of votes, the name of such site shall be reported to the Senate by the President, and such site shall be deemed’ to be the site preferred by honorable senators.”
Upon which Senator McGregor had moved, by way of amendment -
That after the first sub-paragraph of paragraph 2, the following words be inserted : - “That each site must be nominated separately, and no two or more sites may be bracketed in one nomination.”
– When my speech was interrupted last evening I was attempting to deal with some of the objections raised to the Dalgety site by Senator W. Russell, and other supporters of Canberra. Senator W. Russell, as a farmer, is no doubt exceedingly anxious that the territory on which the Capital site is to be built shall be suitable for agriculture. Whilst the country surrounding Dalgety might not be classed as being as fertile as many portions of Queensland or the northern part of New South Wales, it will, I think, compare favorably even from an agricultural point of view with other parts of the temperate districts of Australia. I wish to impress upon the honorable senator that a capacity for the growth of produce is not what is specially necessary in a Federal Capital site. If the honorable senator will ask himself what he, as a member of the Socialist Party, wishes to do in the Federal Territory, he will discover that suitability for the growth of wheat, barley, potatoes, corn, pumpkins, and so on is but a subsidiary qualification for a Federal Capital site.
– I desire that working men should be able to secure small plots in the territory which they could cultivate.
– Senator McGregor argued that Dalgety is a most fertile district.
– I am not saying that it is not. I am merely endeavouring to point out to Senator W. Russell that even if it is not that is no reason why it should not be suitable for a Federal Capital site. Before going further, I should like to direct the attention of the honorable senator to the company in which he how finds himself. We have the whole antiSocialist forces of the Senate raised insolid phalanx against the Dalgety site.
– Including Mr. j. C.
Watson
– Mr. Watson is not in the Senate. I am dealing with the forces of reaction and conservatism in the Senate.
– Mr. Watson was the honorable senator’s boss for many years.
– He was never my boss, nor was any other man in the Labour movement. My only bosses are the electors whom I represent. I do what they desire. I am their obedient humble servant, so long as they choose to elect me to represent them. I wish Senator W. Russell to contemplate honorable senators sitting opposite him, that he may obtain a clear grasp of the situation, and know the people with whom he is now associated.
– If to be singular is to be right, I am prepared to be singular.
– I have no doubt that the honorable senator’s anti-Sosh friends will cheer that sentiment. I do not wish to convert the honorable senator.
– The honorable senator cannot do so.
– I propose to advance a few reasons to show why the antiSosh party wish that Dalgety, the deliberate choice of the Commonwealth Parliament, should again be put into the melting pot. Two or three reasons stand out prominently. One is based on the proposal that the Federal Territory shall include an area of 900 square miles. Our anti-Sosh friends have apparently come to the conclusion that if such an area is acquired by the Commonwealth, there will be no pickings for them. What they are anxious to secure is a small Capital site, on which large sums of public money will be spent in such a way as to increase the value of the land surrounding that site, and give the land-boodler a chance of making a huge profit.
– The honorable senator is drawing upon his imagination for his facts.
– Senator Walker laughs, but he must know even a great deal better than I do, that what I say is perfectly true, because he is one of the inner circle. I merely look on from outside. I take a peep over the wall occasionally, and so discover what is going on within the charmed circle. Another reason for the objection of our friends to Dalgety is that the Federal Parliament carried a resolution that there should be no sales of land within the Federal Territory.
– I think that is in the Seat of Government Act.
– If so, my case is made stronger ; but my recollection is that a resolution on the subject was come to.
– At all events, that is the expressed opinion of this Parliament.
- Senator W. Russell should know, without telling, that such an expression of opinion bumps up against all the pre-conceived notions of our friends of the Anti-Sosh party. They live by that sort of thing. They exploit the country by that sort of thing. Communitycreated increment is what they gorge and fatten upon. It is in this way they have obstructed the progress of Australia. They know as well as I do that if an object lesson in the nationalization of the land-
– Order. I point out to the honorable senator that the question before the Senate has reference to the selection of the Federal Capital site, and not the policy of the so-called AntiSocialist Party. This isnot a proper occasion on which to allude to that matter except incidentally.
– I was merely going to give what I believe to be one of the reasons why a certain party represented inside and outside of this Parliament desires to render nugatory the choice of a Federal Capital site already decided upon by the Parliament. I gave as one reason a certain expression of opinion by this Parliament, and, with all due deference to you, sir, I think I am perfectly entitled to do so.
– Order. The honorable senator will accept the ruling of the Chair.
– Or disagree with it; andI propose to disagree with it.
– Let me point out the position to the honorable senator. We are engaged upon an adjourned debate on a motion which affirms -
That the Senate do forthwith proceed to determine the opinion of senators as to the sitefor the seat of government of the Commonwealth.
The motion then sets out the method proposed for determining the opinion of honorable senators. Senator Stewart would; be perfectly in order in discussing any particular site, and referring to its advantages, or disadvantages, and to its relative merits as compared with any other site, in order to induce honorable senators to make what, in his opinion, would be the most suitable choice. But surely the honorable senator must realize that the desire of any party to boom lands for the purpose of making money cannot have any relation to the question now before the Senate? Such a discussion as the honorable senator’s remarks have suggested might be pertinent in a debate upon the policy of administration of the Federal Territory, proposed by the Government. At present we are not concerned with the area to be acquired for the Federal Territory, or the policy to be followed in its administration, but only with the situation of the Federal Capital site. I ask the honorable senator to conform to my ruling, or take the mecessary steps to disagree with it.
– I move -
That the ruling of the President be disagreed with.
– I desire to second the motion, and, in doing so, I should like to point out that the line of argument on which Senator Stewart was proceeding, and which you, sir, have ruled out of order, might be exceedingly pertinent to the question now before the Senate. Without particularizing any site suggested, it might be proposed that we should select a site where all the land was already alienated, and where we should have no opportunity to give effect to the expressed policy of this Parliament. If the selection of another site, such as Dalgety, were proposed, it might include a large area of Crown lands on which we should be in a position to put the policy of land nationalization into force.
– Before the honorable senator proceeds further, I ask Senator Stewart to put in writing his motion of disagreement with my ruling.
– In compliance with the standing order, I submit, sir, in writing, the motion of dissent from your ruling.
– I point out that the honorable senator has not stated what my ruling was to which he takes exception. He simply says -
I move that the ruling of the President be disagreed with on the ground that it unnecessarily limits the discussion on the question now before the Senate.
I think the honorable senator should point out what ruling it is that he takes exception to, so that we may know exactly where we are.
– The grounds on which I object to the ruling will be stated when I speak to the question.
– The President requires to know what ruling it is the honorable senator objects to.
The PRE S ID E NT. - The honorable senator has handed in the following -
I move - “ That the President’s ruling be dissented from upon the ground that it prevents any reference to the question of land nationalization in the Federal Territory.”
I desire to point out that that was not the ruling which I gave, nor was it the question which the honorable senator was debating, although it may have been the question which he intended to debate. My ruling was that the honorable senator was not in order in attempting to debate the opinions of any party upon land speculation in dealing with the question now under consideration. At the time I interrupted him he was debating the opinions of the AntiSocialist Party, and he had declared that that party were in favour of securing an opportunity to make money by means of land speculation. That was the substance of his remarks in that connexion. If he desires to point out that one site is better than another for the purpose of enabling an experiment in land nationalization to be undertaken he will be at liberty to do so, though not at great length. But if he wishes to take exception to my ruling, that it is not competent for him to debate the opinions of any party upon the subject of land speculation in connexion with the present question, it will be necessary for him to amend his motion accordingly.
– I desire to amend my motion in the direction suggested, and, by leave, will do so.
-The honorable senator has handed to me in writing the following motion : -
That the ruling of the President to the following effect, viz. : - “ That Senator Stewart was not in order in attempting to debate the opinions of any party on the question of land speculation in connexion with the present motion,” be disagreed with on the ground that it prevents any reference being made to the question of land nationalization in the Federal Territory.
I would point out that standing order 415 states -
If any objection be taken to the ruling or decisionof the President; such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day, unless the matter requires immediate determination.
I think that the point raised by Senator Stewart is one which does require immediate determination, because it interferes with the speech which was being delivered by Senator Stewart, and will, if upheld, interfere with the speeches which other honorable senators may wish to deliver. Therefore, I ask the Senate whether it agrees that the matter is one requiring immediate determination?
– I do not quite understand your reference, sir, to the concluding portion of standing order 415, but I presume that the decision of the question of whether the point raised by Senator Stewart does or does not come within the meaning of the words, “ unless the matter requires immediate determination “ is left to the Senate. I ask whether you rule that the matter is one which requires immediate determination ?
– I have not ruled in that way. I have merely pointed out that I think it is a matter which requires immediate determination, and for the reasons I have mentioned. Of course, if there be any objection on the part of honorable senators to proceed with the discussion of the question forthwith, 17 am entirely in their hands.
– If you, -sir, decide that this is a matter which requires immediate determination, I cannot understand how you arrive at that decision, in view of the words of the standing order. If ever the Senate was asked to decide a matter which is not urgent, surely it is asked ‘to do so now. I. have no desire to delay business, nor will business be delayed if this debate be adjourned, because there is another important Bill before the Senate. I submit that if the concluding portion of standing order 415 is binding at all the present debate must be) at once adjourned.
– I admit that, upon the face of it, the words of the standing order appear to be somewhat inconsistent. At the same time they can be read and interpreted together. What is more, I would urge that the general principle of interpretation is that we must give some meaning to the words of the standing order as we find them - -
– If the meaning does not accord with our desires, we must give some other meaning to the words?
– The principle of interpretation is that we must endeavour to give a meaning to words.
– Oh, oh.
– I do not know that this is a matter to occasion laughter. Where the words of this standing order appear inconsistent we must endeavour to ascertain their meaning, with a view to making them harmonize, because we have to presume that the Senate did not uselessly employ them. The standing order reads -
If any objection is taken to the ruling or decision of the President, such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day.
These words appear to be conclusive, and,, if the question at issue were ohe of serious: importance, it would be open to us toohey what is an apparent direction. B,ut: the standing order is qualified by the words - unless the matter requires immediate determination.
Those words appear to me to leave it open? to the Senate to say whether, in the conduct of its own business, it would be undesirable to carry out the direction contained in the standing order, by forthwith adjourning the debate. Under thecircumstances, I think we should come tothe conclusion that this is a matter whichdoes require immediate determination. A. very simple question is involved. Indeed;.. I experience very great difficulty in ascertaining what the exception taken to the ruling of the President means. It is so vague and indefinite. The standing order has left” it open to the Senate to deal with thismatter at once if it desires to do so. T think that it does desire to do so. I am sorry that my honorable friend has seen fit to take exception to the ruling of Mr. President. That, however, is another matter.
– If 1 understand vow ruling correctly, sir, you laid it down that the point raised by Senator Stewart is a matter of urgency in that it had the effect of interrupting that honorable senator in the delivery of an important speech, and’ would, if upheld, prevent the delivery of” other important speeches bv honorablesenators. Now, while that decision mav beexceedingly flattering to Senator- Stewart;. and to other honorable senators who are prepared to make long and eloquent speeches upon this subject, yet I believe that Senator Stewart would not regard it as an extraordinary hardship if his speech upon the Federal Capital site proposal were deferred until the next day of meeting. An honorable senator interjects that he created the position. He did not. There is no reason why this question should be immediately decided. Senator Stewart will not be deprived of any right whatever if his speech upon the Federal Capital site proposals is postponed until our next day of meeting. He may be afforded an opportunity of enriching his mind further with arguments on the question.
– That is not the point now under discussion. The point is that it is for the Senate to determine whether the matter requires immediate determination. It may be an advantage or disadvantage to deal with the question at once. If a motion were submitted that the matter requires immediate determination, Senator Givens would be quite in order in discussing the question of postponement. But the question now is simply whether the Senate should do anything under the latter portion of the standing order, and, if so, in what way. That, I say, is for the Senate to decide, and not for the Chair.
– Accepting your view, sir, I still maintain ‘that the matter is not of such urgency as to induce us to disregard cur standing order. Because, after all, if the question is adjourned, it will only mean the loss of a day, and our time can be occupied with other important business. Therefore, I maintain that a fair and impartial view of the standing order should lead us to decide that the question cannot be .regarded as one of urgency. We should respect our standing order, and treat it as if it absolutely meant what it said.
– The Vice-President of the Executive Council has stated that he regards it as possible to proceed with the motion under discussion, and desirable to do so. I quite agree that it would be eminently desirable to proceed. But I am compelled to look at the wording of the standing order, which makes no reference to desirableness or convenience, but solely to urgency. That being so, the VicePresident of the Executive Council missed the mark when he dealt with the desirableness of doing something. The stand ing order lays down in clear language that when a ruling of the Chair is dissented from, the discussion shall be adjourned until the next sitting day. That is the prime direction of the standing order. Then there is a saving provision - unless the matter requires immediate attention. If this matter could be said to require immediate attention, the formal words providing that the matter should be adjourned might as well be struck out at once, because any matter can be said to require immediate attention if it is business which the Senate has to transact.
– There are degrees of urgency.
– There are. I will instance a case where urgency might present itself. Suppose a Supply Bill came to us on Friday, that a point of order was raised during debate upon it, and that a motion was proposed to dissent from the President’s ruling. There would be a case of urgency, in that the Supply Bill ought to be passed and the public creditor paid. It might then be proposed that we should immediately proceed to deal with the main question. But surely this is not a matter of that kind. I should like also to say, with regard to your suggestion that the Senate itself should decide whether the question is one of urgency, that, with all deference, I think that that would be an undesirable practice to introduce. Very frequently these points of order are taken when the Senate is more or less heated by controversy. *I think that the decision on a question of this kind would come with a great deal more authority and calmness from the Chair. Therefore I hope that whatever the ultimate decision of the Senate may be, a matter of this kind, involving a determination between striving sections, will not be left to a chance majority of the moment, but that a decision will be given with authority from the Chair.
– I have alreadypointed out that, in my opinion, the question whether the point is one of urgency is for the Senate to determine. I do not think that such a point has arisen before, but I find that on the 4th and .5th October, 1906, a case arose when objection was taken to a ruling of the President. The entry in the Journals of the Senate read -
Objection taken. - And Senator Millen objecting, in writing, to the President’s ruling, and the Senate ordering that the matter required immediate attention under standing order No. 415, and Senators addressing themselves thereto
Question - That the ruling of the President be disagreed to - put and passed.
In that case the Senate took upon itself the responsibility of ordering an immediate determination of the question, and that is what I have invited the Senate to do now. If the Senate determines that the matter is not one which requires immediate attention, it must stand adjourned until the next sitting day. If no honorable senator moves, the matter must go over. I there fore call on Senator Stewart.
– Do I understand, sir, that you call on Senator Stewart to resume the debate?
– The standing order is perfectly clear as to the course of action to be taken on the motion to dissent from the ruling of the Chair, unless it is determined that the matter is one which requires immediate determination.
– - I merely rose, sir, because I understood you to call upon Senator Stewart to resume his speech. I did not understand how that could be done, because I also understood you to rule that the debate, in accordance with the terms of the standing order, stands adjourned until the following sitting day.
– That is so.
– I rose becauseI could not understand why you should call upon Senator Stewart to resume the debate if the debate is to be adjourned until the next sitting day.
– The debate on the motion of dissent from my ruling goes over automatically until the next sitting day. But Senator Stewart was in the middle of his speech on the main question as to the selection of the Capital site, and I called on him to resume it.
– How can he do that ?
– With great respect to you, sir, if you will look at standing order 415, you will see that the debate on the Capital site isnow automatically adjourned. I remindyou that the result of your ruling, and the position that we have reached, mean that the debate upon the motion of the Vice-President of the Executive Council is now automatically adjourned until the next sitting day.
– The standing order does not say so.
– Senator Stewart would not know how to proceed until the point of order had bean disposed of.
– The Vice-President of the Executive Council has been long enough a member of the Senate to know how to proceed. The standing order is framed in language that is not ambiguous or hard to understand. An ordinary senator, to say nothing of one occupying the position of VicePresident of the Executive Council, should know what our procedure is. We have used this standing order before. We have worked under it. When a ruling of the President has been disputed, the business before the Senate, whether it has had relation to a Bill or a resolution, has been automatically adjourned until the next sitting day.
– Can I move, sir, that the matter is one of urgency, and that your ruling be taken into consideration forthwith ?
– At present there is a point of order under consideration. Until it is settled, it will not be in order for Senator Macfarlane to submit such a motion.
– I submit that what the standing order provides shall be adjourned until the next sitting day is the debate on the motion that the President’s ruling be disagreed with.
– But how can Senator Stewart proceed until the point of order is decided?
– The President has ruled that a certain line of discussion is out of order. Until that ruling has been dissented from by the Senate, it stands. The standing order does not provide that the debate on the main question shall be adjourned, but simply that the discussion on the point of order shall be adjourned. Whether Senator Stewart can as well proceed with his speech now as he could have done had the President not ruled is quite another question. The point we are discussing is the effect of the standing order, and I contend that the effect of it simply is to adjourn the discussion as to the President’s ruling.
– And to put Senator Stewart in irons.
– That is quite another question. What business is it that has to be adjourned until next sitting day ? Undoubtedly it is not the debate on the main question, but that on the point of order.
– How is the main question to be debated?
– I am not concerned about how it is to be debated. I am endeavouring to deal with the situation with which we are confronted. The standing order is quite definite. When the President has given a ruling, and a motion has been submitted to dissent from it, then, automatically, the debate on that motion of dissent is adjourned until the next sitting day, unless it is determined to proceed with it as a matter of urgency. If the Senate determines that the matter is not urgent, the motion of dissent must be adjourned. But the debate on the main debate is not adjourned automatically, and cannot be adjourned except by special resolution of the Senate.
– In dealing with this question, there are two points which have to be considered, namely, the true interpretation of the standing order, and the practice of the Senate. I ask honorable senators whether the standing order is open to two interpretations. It reads -
If any objection is taken to the ruling or decision of the President, such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and the debate thereon forthwith adjourned to the next sitting day, unless the matter requires immediate determination.
– Which debate is to be adjourned?
– The debate on the motion to dissent from the ruling.
– Let the Minister look up the procedure of the Senate in similar cases.
-i intend to show what my honorable friend did on one occasion.
– Perhaps the honorable gentleman will tell Senator Stewart how to resume his speech, too?
– I will, before I sit down. This is a matter to be considered calmly, not heatedly.
– The debate on the motion of dissent from the ruling is adjourned forthwith.
– Under the standing order it is adjourned to the next sitting day, “unless the matter requires immediate determination.”
– What matter?
– The matter of the ruling. An objection having been taken to the President’s ruling, and a motion made in regard thereto, the debate on the motion is adjourned automatically, unless, according to our practice, it is declared to be a matter which “ requires immediate determination.” In order to enable honorable senators to assist in the interpretation of the standing order, let me state what has been done previously.
– May I ask, sir, if the Minister is speaking to a point of order?
– I believe that the Minister is.
– Then he should address the Chair, and not honorable senators.
– That is perfectly true.
– I was addressing the Chair.
– I did not take any exception to the Minister addressing honorable senators. I am following his remarks.
– I was not aware, sir, that I was addressing any one but the Chair.
– The honorable gentleman did just now.
– But I suppose that honorable senators are entitled to a little recognition.
– Not on a point of order.
– Let us see what course was taken on the nth October, 1905, when the Electoral Bill was under consideration. The entry in the Journals is as follows -
Order of the day read for the adjourned debate on the question - That the Electoral Bill 1905 be now read a second time.
Debate resumed.
Question put and passed.
Bill read a second time.
And there being the following contingent notice on the paper for an instruction “ That it be an instruction to the Committee of the Senate to include measures in the Bill to provide for the election of members of the Senate by the method of preferential voting known as the Hare System “ -
The PRESIDENT ruled
I ask honorable senators to follow the ruling carefully.
SenatorColonel Neild. - The Minister is addressing honorable senators again.
– I ask honorable senators not to interfere with the VicePresident of the Executive Council. His remarks are being addressed to the Chair, with a view to a decision being given subject, of course, to review by the Senate. I think that a little latitude might be allowed to a> Minister who desires to show honorable senators that the argument he is addressing to the Chair is correct.
– To continue the quotation -
The PRESIDENT ruled that the proposed instruction was not in order as dealing with matters outside the scope and object of the Bill, and he should not call on it to be moved.
And Senator Clemons, taking objection to the ruling of the President, and motion being made - That the ruling of the President be disagreed with so far as the principles laid down apply to the Bill to amend the law relating to Parliamentary elections -
Ordered - That debate thereon be forthwith adjourned until the next sitting day.
The Senate, according to order, resolved itself into a Committee for the consideration of the Bill.
In other words, the debate on the motion to dissent from the ruling was adjourned, and thereupon the business was proceeded with.
– We were in Committee on the Bill, and proceeded with other clauses. %
– Will the Minister look up the report of the debate on the Kalgoorlie to Port Augusta railway survey proposal, when standing order 415 was brought into active operation?
– If I may be permitted to intervene, honorable senators, if they will refer to volume XXVII. of Hansard, page 3349, will find that an objection was taken by Senator Clemons.
– I hand in my objection - That the ruling of the President be disagreed with so far as the principles laid down apply to the Bill to amend the law relating to Parliamentary elections.
– That objection can be considered at the next sitting day.
In Committee :
Clause 1 (Short title and incorporation).
In that case, it was desired to give an instruction to the Committee on the Bill ; the President ruled that it could not be given, and the Senate, although there had been a motion to dissent from the ruling, proceeded with the business.
– With other business.
– Not at all.
– I only intervened because I thought that some honorable senators misunderstood the matter.
– I thank you, sir, for culling my attention to that debate, and the record supports my contention1.
– Will the Minister look up the case I cited just now ?
– The honorable senator will be at liberty to cite that case. I am dealing now with the case which is immediately in my mind. The proper interpretation of the standing order is made absolutely clear and conclusive by our procedure. The interpretation which I am urging has been accepted.
– No.
– I do not think that there is any room to doubt the meaning of the standing order, and, with very great respect to my honorable friends, I challenge them to interpret it differently. I go further, and say that the interpretation I have urged has already been accepted.
– No.
– Not in the case of the Kalgoorlie to Port Augusta railway survey.
– Order. I ask honorable senators not to interject. Perhaps the Minister had better address his remarks to the Chair, as he did before.
– In the case I cited, instruction or no instruction, the Senate went into Committee on the Bill after the motion to dissent from the ruling had been negatived. I ask you, sir, if that is not an absolute fact, and our procedure in such cases ?
– May I ask the Minister if the application of standing order 415 did not save him from an all-night sitting, when he, with others, was opposing the Kalgoorlie to Port Augusta railway survey proposal, because the debate on the main question was adjourned to the next sitting day, when a ruling by the Chair was dissented from.
– I do not intend to go into that matter at this juncture.
– Suppose that the debate is adjourned now, how is Senator Stewart to resume his speech?
– My honorable friend has only anticipated me. If that is not the true interpretation of the standing order, what would be the position? Senator Stewart would not be at liberty to continue his speech.
– Nonsense.
– That is most unfair. If it is possible to put upon the standing order the interpretation that the debate on the main question is adjourned automatically,
Senator Stewart will be deprived of an opportunity to proceed with his speech.
– How will he proceed with his speech?
– If the Senate adjourns the discussion on the motion to dissent from the ruling, it will have to go further, and resolve that the honorable senator be at liberty to proceed with his speech.
– No.
– There is no escape from that position. The President, if I may be permitted to say so, has interpreted the standing order in the only possible way, and why should his ruling be departed from? I understood that there was a general desire on the part of honorable senators to deal with the question of the Federal Capital site as an urgent matter once it was launched. Why should the debate on my motion be postponed? It is undesirable that the true meaning of the standing order should be departed from, and certainly most undesirable that the debate on the main question should be adjourned.
– Mr. President,you invited the Senate to determine whether this was a matter which requires immediate determination. It was open to any honorable senator to rise and move that it was such a matter, but no one responded to your invitation, and thereupon you very properly ruled that under the standing order the discussion should be forthwith adjourned. In view of your ruling, Senator Stewart and other honorable senators, who may desire to follow him in debating the main question on the same lines, will not be at liberty to do so. . I point out, sir, that your ruling has limited the scope of debate. Senator Stewart, should he resume his speech, and any other honorable senator following him, must debate the motion under the restriction of your ruling, a ruling which, at the next sitting, may be dissented from. If I follow Senator Stewart, and desire to argue the main question on similar lines, I shall find my speech limited by the ruling.
– Certainly.
– I shall be unable to continue to speak on those lines, though the Senate may subsequently determine that the President’s ruling is wrong. What remedy should I have if the Senate , disagrees with the ruling? The present position is not that described by the VicePresident of the Executive Council. It has arisen from the fact that the honorable senator did not ask the Senate to declare this a matter of urgency.
– Certainly not. Why should I, when the debate goes on ?
– I ask Senator Mulcahy not to enter upon a discussion of that matter. The question is as to the interpretation of the standing order.
– I believe that on two previous occasions, in practically similar circumstances, the Senate adopted a different course. It appears to me that the proper thing for us to do now, if we are to carry out the standing order, is to adjourn the debate on the main question.
– A few moments calm consideration of our usual procedure in this chamber, and of the methods of procedure in every other House of Parliament with which we are acquainted, should clear up this matter. What are the facts in this case? Senator Stewart was interrupted in his speech by a point of order. Honorable senators must be aware that the Standing Orders provide, and it is in accordance with our usual procedure, that when a point of order is raised whilst an honorable senator is addressing the. Chair, he must immediately resume his seat, and he cannot resume his speech until the point of order has been decided. That is the rule followed in every Parliament of which we have any knowledge, and our own standing order 415 is emphatic on the point.
– It is common sense.
– Of course it is common sense, as well as the recognised practice of all Parliaments. We have heard a great deal of special pleading, but the position is plain. Several instances of the kind have occurred in the Senate, and the procedure followed, if the matter wasnot decided to be one of urgency, was that the debate on the question on which the point of order was raised stood over until the point of order was decided.
– But not automatically.
– I refer honorable senators to page 4438 of volume xxxiv. of Hansard for the third session of the second Parliament. In a debate on the Kalgoorlie to Port Augusta Railway Survey Bill, Senator Clemons raised a point of order, and I quote the following from the report of the proceedings -
– Under standing order 415, I take exception to your ruling, and shall place my objection in writing.
– I have received the following from Senator Clemons : - “ That the ruling of the President - that the following amendment of clause 2 of the Kalgoorlie to Port Augusta Railway Survey Bill, viz., to insert the following words, Upon the State of South Australia giving ‘the necessary permission authorizing the construction of a railway through that State,’ is out of order - be dissented from. Is the motion seconded ?
– I beg to second the motion.
– Under the standing order the debate on the motion must be forthwith adjourned until the next sitting day.
Debate adjourned. and uponthat, progress was automatically reported.
– No; that is another motion altogether.
– The report of the proceedings immediately follows.
In Committee -
Progress reported.
This question has cropped up four or five times in this Parlament. I am not confining myself to the ruling of a past President. I have frequently said that I do not desire to be tied down by precedents, but I do say that we should obey the laws which we have laid down for ourselves. Our Standing Orders are emphatic, and the practice of every Parliament in the world supports the common interpretation of those Standing Orders that when a point of order is raised whilst an honorable senator is addressing the Chair, he must at once take his seat, and cannot resume his speech until the point of order is decided.
– The precedent bears out to the letter what I have argued.
– It does not do anything of the kind. Senator Stewart desires to debate the main question in a certain way. Whether that way is right or wrong has not yet been decided. The President took exception to the manner in which the honorable senator was debating the question, and ruled that he was not in order. What would be the dilemma in which Senator Stewart would find himself if he were now called upon to resume his speech? Would the honorable senator be at liberty to resume his speech on the lines on which he was called to order, or would he be confined within the restrictions of a ruling which has been challenged ? Suppose the honorable senator addressed himself to some other aspect of the question, that another point of order was raised and was upheld by the President, would Senator Stewart’s right to speak on the subject be entirely abrogated? I contend that in accordance with our previous practice and our Standing Orders, the debate on the main question must be adjourned until such time as the point of order taken against Senator Stewart’s speech has been decided by the Senate.
– That is another matter.
– I defy the VicePresident of the Executive Council to refer honorable senators to a single case in which an honorable senator has been asked to proceed with his speech until the point of order on which he was compelled to resume his seat has been decided.
– I have done so.
– Never, sir.
– I ask the honorable senator to address the Chair.
– I am addressing the Chair.
– The VicePresident of the Executive Council addressed the honorable senator, and he replied.
– I have been addressing you, sir, all the time, and I submit in a perfectly orderly manner. If it is decided that this is a matter of urgency the point of order can be settled, and Senator Stewart can resume his speech. But until such time as the honorable senator is informed as to the lines on which he will be allowed to proceed, he should not be called upon to resume his speech at all. If an honorable senator is to be permitted to resume his speech before a point of order raised against him has been decided, the practice must lead to disorder. I will ask what would be thought of me if, when a point of order was raised’ against me, I insisted on my right to continue speaking, while you, sir, were considering the point of order. If that course were followed there would be an end to all order in this Chamber. I submit that we should follow the practice which we have already laid down, and the Standing Orders, which we have adopted, for the orderly conduct of business.
– I should like to point out that what happened on the occasion on which a similar point arose in connexion with the Kalgoorlie to Port Augusta Railway Survey Bill entirely bears: out the contention of Senator Givens that it has been the practice of the Senate to automatically adjourn the debate upon a motion that the ruling of the President be dissented from. In the case quoted I direct attention to the fact that the Senate was in Committee when the point arose. A ruling by the Chairman was dissented from. That was referred to the President, and then a ruling by the President was dissented from, and the debate on that motion was immediately adjourned. It is obvious that the Bill could not be left hung, as it were, between heaven and earth, and so the Senate went again into Committee and progress was reported, that being tlie only way in which the Committee could terminate its business. That, as the record quoted by Senator Givens shows, is exactly what the Committee did, and it was the only thing which the Committee could do if its proceedings were to be carried over in conformity with standing order 415.
– I take it, sir, that on your interpretation of the Standing Orders your ruling on the point of order raised must, until the next sitting day, hold good as against the motion of dissent submitted by Senator Stewart. If that be so, according to your ruling, and the contention of the Vice-President of the Executive Council, Senator Stewart may now continue his speech, and at any moment he might desire to introduce matter which you have decided is inadmissible. Any other honorable senator following him might do the same. In the circumstances, I submit, if I may be pardoned for the use of the expression, that your ruling would permit of a tyrannical abuse of power by the President, which would interfere to a materia! extent with the liberty of debate. If Senator Stewart resumed his speech, was again ruled out of order, and again moved that the ruling be disagreed with, that ruling would still hold good under your interpretation until the next sitting day’. And, again, if I may 6e pardoned the expression, in such circumstances honorable senators would be brought absolutely under the whip of the President. I can scarcely conceive that it was intended by the Standing Orders to give such drastic powers to any President. I presume that it is in order to avoid the consequences to which I have referred that an opportunity is afforded by standing order 415 to treat a motion of dissent from the President’s ruling as a matter of urgency. The Vice-President of the Executive Council, who is responsible for the conduct of business, might on this occasion .have submitted a motion to that effect. But as he has not done so it seems to me that the opportunity -.to which I have alluded has been lost.
Therefore, the consequences I have suggested may follow, and these are inconsistent with the elementary principles of freedom of speech which should not be unduly trammelled in this Chamber.
– It seems to me that the majority of those who have spoken in opposition to the decision “which VOl- have outlined, rather than given, have confined themselves tq pointing out not so much the true interpretation which should be placed upon the standing order as the inconvenience that would flow from such an interpretation of it. I admit the awkwardness of the position, but I contend that the ruling outlined by you is the only one which could possibly be given under the circumstances. I recognise all that Senators Givens and St. Ledger have said regarding the. inconvenience that would result from a strict interpretation of the standing order. But I submit that it is less your duty to consider the consequences that would follow the enforcement of the standing order than it is to consider the language of the standing order itself. With great respect, I contend that it is your duty to interpret the Standing Orders as they are printed, and as they have been adopted. It is not for you to trouble yourself about the inconveniences that may flow from their rigid enforcement. I do not see how it is possible to construe the words “and motion made” as applying to the main motion before the Chair, because that motion was submitted days aero. The standing order provides that when any objection is taken to the ruling or decision of the President, it must be taken at once and a motion of dissent submitted, which, if seconded, ‘ shall be proposed to the Senate, and it declares that debate thereon shall be forthwith adjourned till the next day of sitting. It does not contain a single word in reference to the question which was before the Chair when the President’s ruling was given. I would further point out that the word “motion” could not apply to an Order of the Day. I am not quite sure whether the motion relating to the Federal Capital site is not an Order of the Day. But, clearly, the President might be called upon to give a ruling upon an Order of the Day, and who could then say that the word “ motion “ in the standing order referred to that Order of the Day. I submit that the only motion under consideration at the present time is the motion of dissent from your ruling.
– It is extraordinary that we should be called upon to seriously entertain the view of your ruling which has been expressed by some honorable senators.. In the first place, ‘Senator Stewart was addressing himself to the motion relating to the selection of the Federal Capital site. He was making some pointed references to the lands in the vicinity of the eligible sites. You, sir, ruled that in referring to the land nationalization aspect of the matter, his remarks were out of order. He dissented from your ruling, and put his objection in writing. As a result, we are now asked to proceed with the discussion of the main question, and to listen possibly to further remarks by Senator Stewart, which you may rule out of order, so that he will again feel called upon to dissent from your ruling. And this farce, according to some honorable senators, must be continued until the next day of sitting. It seems to me that when your ruling, sir, is dissented from, the debate on the main question, as was pointed out by Senator Clemons - becomes automatically adjourned. If the standing order does not mean that, I do not understand its meaning. In the interests of the Senate itself, it would be far better to adjourn the debate upon the main question.
– That is another matter altogether.
– It is an all-important matter. How can we reach finality until the point of order raised by Senator Stewart has been settled?
– How can we debate it?
– Exactly. If Senator Stewart does not continue the line of argument that he was following when he was ruled out of order, possibly another honorable senator may desire to do so. In that case the honorable senator in question would be ruled out of order, and would be obliged to dissent from your ruling. Under such circumstances, how could the debate upon the main question be continued? It is quite conceivable that a number of honorable senators may desire to adopt the same line of reasoning as that followed by Senator Stewart, and, if they are to be ruled out of order, there will thus be eight or ten motions of dissent from your ruling before the Chamber. I am sure that that is not what the standing order contemplates.
– The position in which we now find ourselves is largely the fault of the Senate itself. While Senator Stewart was speaking, you, sir, ruled that it was not competent for him to refer to any party as being interested in land transactions. He took exception to that ruling, and the Senate was then asked to decide whether or not the question at issue was one of urgency. But it did not decide that question, nor did it determine that the debate should be adjourned. Consequently I hold that there is no other course open to you than to call upon Senator Stewart to continue his speech. I admit that the position is an almost impossible one, seeing that Senator Stewart cannot continue his remarks with the limitation that you have imposed upon them.
– If his remarks are in order he should be allowed to continue his speech.
– The position in which we now find ourselves is, I repeat, largely the fault of the Senate itself.
– Would the honorable senator penalize Senator Stewart because of the fault of the Senate?
– The only way out of the present difficulty is for some honorable senator to move the adjournment of the debate. But I cannot see the slightest justification for finding fault with the ruling of the President. In the first places you, sir, threw upon the Senate the responsibility . of deciding whether the point raised by Senator Stewart was or was not urgent. But the Senate remained silent upon that matter.
– The Senate, in response to the President’s request, said that that question would be decided on the next day of sitting.
– No honorable senator moved that the determination of the question was urgent.
– No honorable senator moved that its determination was urgent, and therefore the President ruled that it was not urgent.
– My ruling was that the responsibility of deciding whether or not its determination was urgent rested with the Senate.
– The President accepted the position that the Senate had unanimously decided that the question- raised by Senator Stewart was not one which required to be immediately determined.
– I pointed out that if the Senate did not choose to say that the matter was one requiring immediate attention, the debate upon it was automatically adjourned.
– I believe that the responsibility for our present position rests chiefly, if not entirely, with the Senate, because an opportunity was given it to declare whether or not the question raised by Senator Stewart was one of urgency.
– I wish to point out that if I am called upon to continue my remarks upon the motion submitted by the Vice-President of the Executive Council, I shall be placed in a most peculiar position. When you, sir, interrupted me, I was dealing with a particular phase of that motion. You ruled that my remarks were out of order - that they were not relevant to the subject - and therefore could not be continued. I dissented from your ruling, and put my dissent in writing. Under standing order 415, the Senate decided that the discussion of your ruling was not a matter which required immediate attention. That decision was arrived at by the Senate failing to affirm that it was a matter of urgency. Now the question is:’ Can the’ debate upon the motion submitted by the Vice-President of the Executive Council proceed, seeing that you have objected to my pursuing a certain line of argument and that I have questioned your ruling in that connexion ? I wish to continue my speech upon my own lines. You have declared that my remarks are out of order. I have said that they are in order. Consequently your ruling must be remitted to the Senate for its decision. Until that decision is forthcoming I do not see how it is possible for me to continue my speech. To do so would be opposed to all parliamentary rules and precedents. In the present instance it appears to me that the VicePresident of the Executive Council is afflicted with a desire to too literally interpret our Standing Orders.
– The honorable senator can be permitted to continue the debate at any other time. That, however, is entirely another question.
– Standing order 415 says -
If any objection is taken to the ruling or decision of the President, such objection must be taken at once.
You, sir, have objected to my method of dealing with the Federal Capital site question. I have taken objection to your ruling. My objection was taken in proper form, and was duly proposed to the Senate. The standing order says - such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day unless the matter requires immediate determination.
To my mind, the concluding portion of the standing order necessitates the adjournment of the debate upon the motion J:o which I was addressing myself, when you, sir, ruled against me.
– No one having moved the adjournment of the debate, what is the President to do?
– Senator Stewart is supposed to be sitting down now.
– I am supposed to have been ordered down by the President, and to be not permitted to address myself to the principal motion until the point of order has been decided. Very well ; it has not been decided, and, therefore, so far. as I can see, it is not competent for me to resume my speech.
– Would it be competent for me to move that the matter is one of urgency ?
– When the question now under consideration has been decided, it would be in order for Senator Pulsford to submit a. motion of that kind. I have no doubt in my own mind as to the true interpretation of the standing order in question. The practice of the Senate and of other Parliaments is also clear. When I first had the honour of a seat in Parliament, I recollect that it was the practice, in the event of an honorable member dissenting from the ruling of the Chair, for the point in dispute to be debated forthwith. That practice was found to be fruitful in enabling honorable members todelay public business by making frivolous objections to rulings, which gave rise to lengthy debates. It was then der/ded that if an honorable member dissented from theruling of the Chair, he should place his dissent in writing, and it should be taken into consideration at a later date - three days afterwards, I think. Under that practice, tha honorable member who was ruled out of order had to accept the ruling of the Chair for the time being. That is the practice under which I was educated. When this Senate was first considering its Standing Orders the matter in question received full consideration. It was desired that there should be no interruption of a debate on account of objection being taken to a ruling on a point of order. Accordingly, the standing order adopted was -
If any objection is taken to the ruling or decision of the President, such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day, unless the matter requires immediate determination.
The ruling that I have given is that it is for the Senate to ‘ determine whether the matter requires immediate determination.. If the Senate does not see fit to decide that the matter requires immediate determination, the debate upon the motion of dissent from the President’s ruling passes over automatically to the next sitting day. But that procedure does not interfere with the debate in progress. The honorable senator addressing himself to the main question can proceed with his speech if he wishes to do so, but he must obey the ruling given from the Chair. In pointing this out, I may also indicate what the Senate has previously done in similar circumstances. There is a report from the Standing Orders Committee with regard to the rulings of the President. It says -
That in any case which shall arise which ha« not been provided for by the rules or in which the rules appear insufficient or manifestly inconvenient, the President should state to the Senate (after mature consideration, if possible) what in his opinion is the best procedure to adopt ; in the event of no objection being taken by the Senate, this shall be the procedure until altered by the Senate.
That report was adopted by the Senate. It is there clearly stated that the ruling of the President is to be accepted until the Senate sees fit to dissent therefrom. Two cases have been cited as being applicable to the present circumstances. The first was in reference to the Kalgoorlie to Port Augusta Railway Survey Bill. The Journals of the Senate report -
Amendment ruled out of order by Chairman. - The Chairman of Committees ruled that the amendment is not in order, as not relevant to the subject-matter of the Bill, which as read a second time, was confined to making a survey, and had no reference to railway construction.
Objection taken- - And Senator Givens taking objection in writing to the decision of the Chairman, the Chairman left the chair.
Appeal to President. - The Senate resumed. And the matter having been laid before the President, and senators having addressed themselves thereto.
The President upheld the Chairman’s ruling.
Objection taken. - And Senator Clemons taking objection at once, and in writing, motion being made and seconded was proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day.
The next entry which. I will quote, from the Journals of the Senate, of 20th September, 1906, is as follows -
Kalgoorlie to Port Augusta Railway Survey Bill. - On the order of the day being read, for the adjourned debate on the question - That the Kalgoorlie to Port Augusta Railway Survey Bill be now read a third time -
And Senator Clemons objecting that the Bill was not properly before the Senate -
Debate ruled in order by President. - The President ruled that the resumption of the debate was properly before the Senate, as the sitting of the Senate was the same sitting.
Objection taken. - And Senator Clemons taking objection in writing, and motion being made and seconded - that the President’s ruling (that the third reading of the Kalgoorlie to Port Augusta Railway Survey Bill can be taken without an adjournment of the debate, or without leave to Senator Turley to resume his speech.) be dissented from - was proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day.
In the next case referred to, the Journals record that it was ordered “ that the Committee have leave to sit again to-morrow.” Hansard simply reports that the debate was adjourned ; and its report proceeds -
In Committee :
Progress reported.
It is perfectly true that, as soon as the Senate resolved itself into Committee again, progress was reported, but the matter did not pass over automatically. It was necessary that some motion should be made before the debate was adjourned. Let me come to a later case, which arose on tha Electoral Bill. The Senate having read the Bill a second time, a motion under our Standing Orders for an instruction to the Comm’ittee was submitted. Senator Mulcahy desired to move the instruction. The President considered that the instruction was not in order, and ruled accordingly. Then the Hansard report - nth October, 1905, vol. XXVII., 3348, proceeds -
– May I ask that special consideration may be given to the ruling which you have delivered?
– The Standing Orders provide that, if a ruling is not objected to formally, it stands. I told Senator Mulcahy that I intended to give this ruling.
– Unfortunately, he is absent, but I feel sure that I am speaking on his behalf as well as, perhaps, for others, if I request that the ruling may be taken into consideration.
– How can I abrogate the Standing Orders?
– If I enter a formal objection, will that enable the ruling to be considered ?
– Yes; the honorable and learned senator can make a formal objection that my ruling be disagreed with. The question will be considered on the next day of sitting. But the objection will have to be in writing. Does Senator Clemons object to the principle laid down, or to the application of it in this case ?
– I am not objecting at all, except formally. I would rather do so in the least objectionable way.
– Senator Clemons can object to the application of the ruling in this case.
– I hand in my objection -
That the ruling of the President be disagreed with, so far as the principles laid down apply to the Bill to amend the law relating to Parliamentary Elections.
– That objection can be considered at the next sitting day.
After that the report goes on -
In Committee :
Clause 1 (short title and incorporation).
The Committee proceeded to deal with the Bill as far as clause 5. So that the matter was not automatically postponed for the purpose of allowing the point of order to be settled. It will be observed that the matter then in dispute being with reference to a desire to give an instruction enlarging the power of the Committee, it was necessary that that point should be settled. Otherwise the Committee would be prevented from dealing with matters which, if a certain determination was arrived at, might have been dealt with. This Senate, however, simply allowed the business to proceed, subject, of course, to the ruling given by the President; and that ruling precluded the desired instruction being given, and precluded the Committee from dealing with the particular phase of the question that Senator Mulcahy desired the Committee to be empowered to deal with. That case is absolutely on all-fours with the present position. Senator Stewart was in the middle of a speech. Exception was taken to his line of argument. A ruling was given against him. Then he did what he had a perfect right to do; he gave notice of dissent from the ruling of the President. The standing order specifically provides that such a motion cannot be discussed at the time unless the Senate resolves that it is a matter for immediate determination. So far the Senate has failed so to determine. Consequently it has left the matter to stand over. But that does not interfere with the debate on the main question. The ruling of the President has to be accepted; and, until it is altered in a proper and constitutional way, the ruling must govern the debate. In due course an opportunity will be given for the Senate to say whether the ruling shall be maintained or not. The question is simply one of the true interpretation of the standing order. It has been said by one honorable senator that there is a possibility of a tyrannical President abusing his power and improperly limiting discussion. While such a possibility can be imagined, we can hardly conceive of an honorable senator being put in the Chair who would use his authority so tyrannically and unjustly. There must be some ultimate authority if Parliament is to proceed with its business in an orderly manner. The authority is in the President or the Chairman of Committees; and if the. Senate considers that a mistake is made by either of these officers, the standing order prescribes the method of rectifying the error. But it does not say that the debate on the main question shall be adjonrned. I have no hesitation in ruling that the true interpretation of the standing order is that it simply provides for the debate on the motion of dissent being adjourned until a later date, and does not provide for the adjournment of the debate on the main question. I should like honorable senators to realize also that if the President were not placed in such a position, it would be open to any honorable senator to raise a point of order, however frivolous for the purpose of blocking business. The Senate might be prevented from doing any businessby the raising of such points. It was not the intention of the Senate to permit abuses of that character to come into vogue. The intention was that the Senate’s business should be proceeded with in an orderly manner, and that no opportunity should be given to frustrate the intentions of the majority. The object of the Standing Orders is to permit business to be proceeded with, unless the Senate desires it it to be postponed.Another question has been raised. It is said : Suppose Senator : Stewart were to resume his speech upon the main question, and again transgressed the ruling of the President, what would his position be? An honorable senator is bound to obey a ruling of the Chair and the Standing Orders enable the ruling to be insisted upon.
– What has been adjourned until next week is the consideration of the motion to dissent from the ruling of the Chair ; but, in the meantime, the ruling is binding upon the Senate. Senator Stewart was entitled, in the absence of any motion, to resume his speech. If he does not choose to proceed he need not but, of course, he will be held to have spoken to the main question, and will not be entitled to speak again unless a further amendment is submitted. The ruling I give now is that tinder standing order 415 the only question which stands adjourned is the debate on the motion to dissent from the ruling; that the debate on the main question is not automatically adjourned; and that Senator Stewart is entitled to resume his speech subject, of course, to the observance of the ruling given. Senator Pulsford asked just now whether it would be competent to submit a motion that this matter should be adjourned immediately. Apart from the point of order, no business has intervened, and it will be open to the honorable senator to submit a motion of that character if he sees fit, but if Senator Stewart had resumed his speech that would not have been in order.
– I presume, sir, that I am now called upon to continue my speech ?
– Yes.
– If that is the case it must be evident to every honorable senator that I shall do so under very improper restrictions. I ask leave to resume my speech after the point of order has been decided.
Leave granted ; debate adjourned.
page 1776
In Committee (Consideration resumed from 14th October, vide page11 25):
Clause 14 agreed to.
Senator PULSFORD (New South Wales [12.34]. - Mr. Chairman-
– I have declared the clause passed.
– I hardly know what the clause is. Honorable senators have not yet had time to refer to it.
– I called order, and allowed a considerable interval before I put the clause.
Clause 15 -
No person shall be admitted to examination for a certificate of competency unless he is a British subject, and speaks the English language fluently, and possesses the prescribed qualifications.
– The Navigation Commission ascertained that there are one or two very deserving men who for many years have been pilots on the northern coast, but who are not British subjects. I am not sure as to whether this clause will exclude them.
– It is a little difficult to apply one’s mind to the Bill so suddenly. This clause does not apply to pilots, and if I remember aright, it is provided in Part VIII. that they must be British subjects.
– Yes, in clause 335.
– But there are a few good pilots who are not British subjects.
– Clause 335 reads -
Certificates having the effect of exempting ships (the masters of which hold pilotage exemption certificates) from compulsory pilotage may be issued in the manner and under the conditions prescribed, and on payment of the prescribed fees.
Such certificates shall be called “ pilotage exemption certificates,” and shall -
have effect only in regard to ships registered in Australia, and to such other classes of British ships as are prescribed.
– The clause to which the Minister has drawn our attention provides that masters of ships who are granted pilotage exemptions must be British subjects, just as masters or officers who wish to get certificates must be. So far as I know there is nothing in the Bill to the effect that a foreigner should not be admitted a pilot. I think it is absolutely necessary, if we are to admit pilots to the Public Service, that they should be British subjects.
– After they have passed the examination.
– No, before they are admitted to the examination.
– Why not afterwards ?
– No great hardship will be imposed. If a foreigner desires to enter the Public Service of the Commonwealth, surely he should become a naturalized subject before he is admitted. Clause 15 only deals with masters of ships, whereas clause 335 deals with masters of ships who apply for a certificate of exemption from pilotage. It enables a master to pilot his own ship, but not other ships.
– The clause is not limited to “ masters of ships,” because it begins with the words “ No person.”
– Exactly. The Bill contains no provision for a pilot certificate, but it provides that a pilot shall hold a master’s certificate. I think that the provision is absolutely safe.
– I move -
That the words “ and possesses the prescribed qualifications “ be left out.
On many occasions I have drawn attention to the inadvisability of leaving too much to be prescribed. From start to finish the Bill rests upon prescriptions, and so far as I can see we shall be wise in limiting this clause. I ask the Minister to tell us what is meant by “the prescribed qualifications,” or why there should be any prescribed qualifications?
– It may be in connexion with the examination.
– If certain qualifications are required, why cannot they be stated in the Bill, instead of being left to some authority to be dealt with?
– We cannot go into every detail.
– No, but we can lay down general principles. In the Bill we are leaving too much to prescription. I invite the Minister to make a statement on the subject.
– Would the honorable senator embody in the Bill the details of an examination?
– To my mind, there is a good deal in the point raised by Senator Pulsford. The phrase means that the person has to possess some qualifications before he is admitted to examination. It does not refer to the contents of the examination papers, and, if it did, it would be pure surplusage. It is proposed to lay it down that candidates must possess other qualifications besides those of being a British subject, and being able to speak the English language fluently.
– It may mean that he shall have spent a certain number of years at sea.
– Why should a person be required to spend a certain time at sea before he is admitted to examination ? Surely the examination is intended to be a test of his ability. Some men might be able, after a few years’ service at sea, to pass satisfactorily. Why should it be left to the Government to prescribe that a man shall not be admitted to examination unless he has served for ten, fifteen, or twenty years at sea? I ask the Minister to state what qualifications, other than those I have mentioned, are likely to be required, before a man can submit himself for examination. This clause refers only to the qualifications required of an applicant for examination for a certificate, and not to the character of the examination itself.
– Certain qualifications have always been required of applicants for these examinations. For instance, before a man is allowed to go up for examination as a second mate he must have been a certain number of years at sea, and must have served as an able seaman for a certain time. The fact that he is able to produce his discharge is evidence to the examiners that he has been to sea in a certain capacity for a certain number of years. In the same way a man holding a second mate’s certificate must show that he has been to sea for a certain length of time in that capacity before he is allowed to go up for examination for a first mate’s certificate. Then a man holding a first mate’s certificate must show that he has had certain experience as an officer practically in charge of a ship and must produce discharges as a first mate to render him eligible for examination for a master’s certificate. In my opinion that is the procedure involved in the use of the words “ possessesthe prescribed qualifications “ to which Senator Pulsford has objected.
– I find it difficult to discover what Senator Pulsford is driving at. Surely the honorable senator does not suggest that the utmost care should not be exercised by the Committee to make it quite certain that only highly qualified men shall be appointed to discharge the duties of officers. I thank Senator Turley for his full explanation. Before a man is permitted to enter for certain examinations he must satisfy the Board of Examiners that he has had experience at sea, or must produce previous certificates. It is essential that we should have the power to prescribe by regulations the qualifications required. To attempt to stereotype those qualifications by setting them out in detail in the Bill would only cause difficulty, as it might subsequently be found necessary to vary those which at the present moment might appear to be suitable.
– The criticisms of Senators Pulsford and Chataway, if amusing, have also been useful in concentrating the attention of honorable senators on the Navigation Bill. Senator Pulsford’s suggestion is practically that we should set out in the Act what a qualification for a certificate should be, and Senator Chataway suggested that experience at sea should not be considered necessary.
– I did not say anything about experience at sea.
– If we did not require of applicants for examination for these certificates that they should have had experience at sea, the gaining of a certificate might merely be a matter of memory and would require no practical knowledge. I think the clause as it stands is satisfactory, and is , in accordance with common sense, though I cannot say so much for the criticism of Senators Pulsford and Chataway.
Senator GUTHRIE (South Australia) £12.54]. - There are many matters which, under the provisions of this Bill are left to be prescribed by regulations which should properly be provided for in the Bill itself, but this clause does not deal with a matter of that kind. I take it that the intention under this clause is to prescribe qualifications in accordance with the practice of the Board of Trade.’
– Under the Merchant Shipping Act it is provided that the Board of Trade may make rules, which shall be strictly adhered to, governing the conduct of examinations, the qualifications of applicants for examination, and so on.
– I have here a publication which is an official copy of the Board of Trade examination for deck officers. I have also another volume setting out the examination for engineers. Honorable senators will see that it would be quite impossible to include the matter in these publications in the Bill. I find it is provided that a candidate for a second mate’s certificate must be not less than seventeen years of age, and must have served four years at sea. It is prescribed that there shall be an examination in navigation for a second mate’s certificate. The candidate must be able to write legibly and spell correctly. This is to be decided by not less than a quarter-hour’s dictation. He must write a short description of various astronomical and other terms and draft a diagram explaining them. He must be acquainted with the first five rules of arithmetic and so on. Honorable senators will see that it would be quite impossible to include all such particulars in the Bill. Let me say, further, that it is scarcely possible for the Government in prescribing regulations under this clause to make any serious departure from the requirements of the Board of Trade. It is expected that certificates granted under this Bill shall be recognised all over the world, and they certainly will not be so recognised if they are not in conformity with the regulations prescribed by the Board of Trade. In the circumstances honorable senators may safely pass the clause as it stands.
Senator PULSFORD (New South Wales [12.56]. - I am much obliged to Senator de Largie for his laudatory compliments which did not appear to me to add very much to the wisdom of the Committee. With regard to the remarks of the Vice-President of the Executive Council, and Senator Guthrie, I direct attention to the fact that this clause is not taken from the Merchant Shipping Act. If it were, I have no doubt we should have been satisfied with it. I again point out that the words “ and possesses the prescribed qualification “ have nothing to do with the ultimate certificate. They have to do only with the fitness of the applicant for examination before he is permitted to go up for examination. They appear to me to be so entirely unnecessary that I am prepared to divide the Committee on the amendment.
Amendment negatived.
Clause agreed to.
Clauses 16 and 17 agreed to.
Sitting suspended from 1 to 2.15 p.m.
– I beg to call attention to the state of the Committee.[Quorum formed.]
Clause 18 -
Penalty : Twenty-five pounds.
– I move -
That the word” physically,” line 2, be left out.
It seems to me that the term “ physically unfit “ is open to a number of different interpretations. We ought, I think, to make it perfectly clear that if the holder of any certificate is unfit to perform his duties - no matter from what cause his incapacity may arise - he shall be required to submit himself to a medical examination, and be liable to have his certificate indorsed with the result of the inquiry into his competency. I can readily conceive of an officer, who may be physically unable to discharge duties requiring the possession of a very robust constitution, being mentally very alert, and quite competent to take charge of any vessel. If we excise the word “ physically,” the meaning of the clause will be made much clearer.
– But if we excise that word, we may raise the whole question of a man’s qualifications. If an officer has obtained a certificate, surely his competency ought not to be again challenged.
– If an officer becomes incompetent from any cause, we should have a means of discovering the fact, and should possess the power of cancelling his certificate for the time being. It is not difficult to conceive of the cases of men who may be physically robust while sober, but who may be habitual drunkards. Provision should be made for such cases in this clause.
– Provision is already made for them elsewhere.
– Then why is not the treatment of officers, who are unfit to discharge their duties, dealt with exclusively by clause 365 ? I. think that a Court of Marine Inquiry, such as is provided for in that clause, is the proper tribunal to deal with cases of this description. At any rate, the word “physically” should be omitted from the clause under consideration, because a man may be mentally well -equipped to discharge his duties, and yet possess but a delicate constitution.
– Under this provision he will have to be absolutely unfit to perform his duties before his competency can be challenged.
– But the clause provides for no measure of physical unfitness. To my mind, it would be much clearer if we excised the word “physically.” We should then place it beyond doubt that an officer, addicted to drink, would be liable to have his certificate taken away from him’. I know of soma officers who are not strong men, but who are mentally very alert. Their work is not laborious, and I contend that by retaining the word “ physically,” their certificates will be endangered.
– I think that when my honorable friend comprehends the meaning of this clause he will be amongst the first to support it. I admit that the provision is not contained in the Merchant Shipping Act. It merely provides that if, for example, it should come to the knowledge of the Minister that an officer is colour-blind, or subject, say,to epileptic fits - in short, if he is really a danger to the community - he may be required to deliver up his certificate, and, after a proper inquiry has been held, that certificate may be indorsed with a statement as to his physical unfitness. An attempt to do something similar was made by the Marine Board in Victoria some years ago.
– And they “ fell in.”
– The Marine Board of Victoria thought fit to provide that the certificates of officers, who were physically unfit, should bear an indorsement to that effect. It was acting in thebest interests of the community, but, being ultimately unable to establish its position; it was mulcted in damages as the result of an action for libel. But we have to recollect that it is our duty to protect the community. If a man is suffering from infirmities, such as I have suggested, we have to protect the community against the danger of allowing him to continue in the performance of responsible duties, by indorsing upon his certificate a statement as to his physical unfitness. Senator de Largie has referred to cases of drunkenness. But that class of misconduct is provided for in the usual way in clause 357. Ultimately, in clause 365, the Court of Marine Inquiry is empowered’ .to suspend or cancel the certificate of any officer who is deemed to be incompetent, or to have been guilty of any gross act of misconduct. In the clause immediately under consideration, we wish to provide a more summary method of dealing with certain cases. Should it come to the knowledge of the Minister that an officer is colour-blind, or subject to epileptic fits, or to any other” physical infirmity, he is empowered to say to him, “You must give me your certificate.”
– The amendment proposed bv Senator de Largie would not take away that power.
– lt would enlarge it, and the enlarged power is already contained in clause 357.
– But clause 357 deals only with the certificates of officers after some trouble has occurred.
– It prescribes the usual method of dealing with certificates. In this clause we seek to institute a somewhat more summary method.
– The only point is whether it is right to do so.
– Under this provision we are making a considerable advance upon State legislation.
– Then why restrict our powers to cases in which men are “ physically unfit?”
– Because those are the more important matters which are likely to claim attention. Take the case of a general charge of drunkenness, which may be preferred against an officer. Because some person has chanced to see him drunk upon one occasion, it would be very unfair to immediately brand him as a drunkard.
– But when he is in that state, he can scarcely be a model of physical fitness.
– Under such circumstances, I think that we should proceed against him in another way.
– If we omit the word “physically,” we shall enlarge the power which the Vice-President of the Executive Council seeks.
– But I do not think it would be fair to excise that word.
– Surely if a man is unfit to perform his duties - no matter from what cause - his certificate ought to be suspended?
– But when we take the summary course provided for in this clause it will be, for some defect which is patent to us. The provision represents a considerable advance upon State legislation, and, indeed, upon the Merchant Shipping Act itself.
– Has not our experience shown that some such provision is absolutely necessary for the safety of .the public ?
– It has. Not very long ago the Australia came to grief-
– That was through the fault of the pilot. Such a case would not come within the scope of this clause.
– At. any rate, ‘ the matter is one for the consideration of honorable senators. As we are making considerable advance upon State legislation in this connexion, and as the clause is intended to empower us to deal with officers whose incompetency is patent, the Minister should, I think, have the power to indorse their certificates with a statement of their infirmities. That is the real gist of this clause. I think we are making a very big advance, and it would be a little unreasonable to extend the provision. If we do so, it means giving wider power to the Minister than the Bill asks for. The objection has hitherto been that the Bill makes that power of the Minister too great. Besides, “ unfit “ is a very wide word.
– The Vice-President of the Executive Council has urged, as a principal reason for not adopting the suggestion of Senator de Largie, that we have made a very big advance from what has hitherto been the law and practice. That is hardly an argument that ought to appeal to us. The question is whether what is proposed is desirable or not, no matter whether it makes a big or little advance. Seeing that life and property are dependent upon the competency of officers in charge of vessels - and by competency we mean something more than mere skill - it is necessary to have power to place the possessor of a certificate under examination. I am not at all fearful that there would be an arbitrary exercise of the power. On the contrary, I am inclined to think that the use of it would be rather lax. It would only be used in an extreme case that it would not be possible to overlook. For that reason, I am in entire sympathy with Senator de Largie’s proposal. But I draw attention to another slight defect in the clause. The clause as it stands would cover all certificates which might be held in Australia. Have we a right to review a Board of Trade certificate?
– Yes.
– We have the King’s Order in Council.
– Can we call in question certificates held by the officers of foreign-going vessels?
– Suppose a master comes here with ai certificate of German origin ?
– We could do nothing with that.
– The clause deals with any certificates.
– The clause applies only to British ships; see clause 8.
– If the Minister is clear on that point, I am satisfied, because I am sure that there is no intention to take a power which we could not maintain. We have no desire to interfere with any certificates that we cannot legally control. Clause 8 does not seem to be absolute. I have drawn attention to the point so that if there is any doubt it may be rectified. If the Minister is clear that the clause as it stands covers only certificates which we have a right to review and control I am content.
– I think the clause would apply to certificates held on foreigngoing ships.
– But not foreignowned ships.
– It would not apply to foreigners, who would look to their Consuls for protection if we attempted to interfere with their certificates.
– I shall support Senator de Largie’s amendment. I can call to mind a case in which it would have been advisable to review the conduct of a captain before he left port. I remember a ship sailing from an outport in South Australia . where the captain had kicked up queer capers ashore. He sailed away, but the ship came back a little while after with the captain in irons. He had been put under restraint by the crew. There was a case in which it would have been desirable to have power to deal with the master’s certificate before sailing. The difficulty was not physical, but mental, incapacity. The question raised by Senator Millen should make us pause before we insert the clause in the Bill. The Board of Trade issues certificates to officers under an Act in which there is no provision of this sort. I remember the case of a mate in Melbourne who went up for examination for a master’s certificate. When he was being examined it was found that he was colour-blind, and the Marine Board not only refused his master’s certificate, but indorsed his mate’s certificate to the effect that he was colourblind. He at once sued for damages, and the Court awarded them to him. If we were to review a certificate issued by the Board of Trade, an appeal might be made to that authority, who might reverse the decision given in Australia, on the ground that it was contrary to Imperial law. That is what I. am afraid would happen. If we are going to test the question, however, it would be just as well to leave out the word “ physically,” and make the clause apply to all unfitness. I know of instances where such a power would have been a very desirable one to exercise. Take a ship, the . master of which has been commissioned by his owners to engage a crew. The crew are shipped within twenty-four hours of sailing. The master is a stranger to them. Something occurs just before sailing which causes the men to say, “ If we go to sea in this ship it will probably be our last voyage.” Under the old law they had to go to sea and put up with things, no matter what might happen, until they reached the next port, or go to gaol for three months. The amendment is a most desirable one to make, but the question I raise is whether we shall be able to maintain our position in cancelling or suspending a certificate issued by the Board of Trade. At present, every Australian State except Western Australia has a King’s Order in Council, making certificates issued in mis country valid throughout the British Dominions. British certificates are recognised in every State of Australia. While our State Acts were in conformity with the Imperial Act we had power to cancel or suspend. But there have been cases where the decisions of local Marine Boards have been upset by the Board of Trade. If we, under our Com.monwealth Act, cancel a British certificate, will the Board of Trade recognise the cancellation ?
– I desire it to be recognised that this is a special clause for a special purpose. It contains its own machinery. The case of a master being mad or drunk has been referred to. Suppose that it is indorsed upon a master’s certificate that he is a drunkard. Suppose that time passes, that an appeal is made to the Minister, and that it is found in the meantime that .he has become a teetotaller. Would the indorsement on the certificate then be - “ This man is no longer a drunkard?” Would not that be an extraordinary state of affairs? Or, suppose the second indorsement were, “ This man is no longer mad?” The object of the clause is to provide for the indorsement of certificates. If, on the other hand, a master is proceeded against for misconduct or incompetence, all that is done by the Marine Board is either to cancel or suspend his certificate. But the object of the clause is totally different. We must not damn a man with faint praise and then, after an inquiry, make an indorsement on his certificate that he is not a drunkard or a lunatic. Because an indorsement of that character would be a serious detriment to him in the practice of his calling. I am disposed to think that it would be better to strike out the clause than to maim it in the way suggested. The object of the clause is to deal with patent things which come under the attention of the Minister. Take, for instance, the subject of colour-blindness. Suppose that after a man’s certificate has been indorsed to that effect an inquiry is held, and it is shown that his sight has recovered, an indorsement would be made on the certificate that he suffered no longer from colour-blindness. I. ask honorable senators to bear in mind that the object of the clause is totally different from the object of clauses 357 and 368.
– Why should not the provision for an indorsement on a certificate apply to all kinds of unfitness? That is what .1 cannot get over.
– For the reason I have given. Take the case of a man who for a few years was, unfortunately, addicted to drinking, but has become a teetotaller.. If it is clearly established that he had the strength of mind to pull himself together, would it not be unfair .to him to keep the old record of his drunkennessconstantly before his eyes?
– Would it not be possible to issue a fresh certificate to him >
– No.
– After examination it would be possible.
– We have no desire to do an injustice to any man. If a man were charged under clause 357 in ‘the ordinary way with incompetency or misconduct of the character I have mentioned, the board of inquiry would not indorse his certificate, but would suspend it for a time, or if the crime was heinous, perhaps cancel it.
– Suppose that a mar* was prevented from going away in a ship and it was found subsequently that he was physically capable, what remedy would he have ?
– Take a case where the Minister charges a man with colourblindness and seizes his certificate. It is the duty of the Minister to conserve the public interest. If it is proved that a man is colour-blind, and therefore dangerous to the community, the Minister in dealing with his certificate will exercise the greatest care.
– Suppose that the man refuses to submit himself for medical examination ?
– If the information furnished to the Minister is sufficiently good to act upon, then, In the interests of the public, the man must suffer.
– But under the clause a man’s certificate can only be taken after medical examination, and if he will not submit himself for the purpose what cf.it be done? He can defy the Minister.
– If the Minister thinks that a man is unfit he can require him tosubmit himself for medical examination.
– But take the case of a man who refuses to do so, and tristis what any man would do.
– Perhaps it may be necessary to insert a few words to meet ;i contingency of that kind. The responsibility is thrown upon us to see that the public are protected by compelling any man who is thought to be physically unfit to submit himself for medical examination. From the wording of the clause it is not absolutely clear that a man’s certificate could not be demanded by the Minister if he refused to submit himself for medical examination. But perhaps it will be advisable to provide for a contingency of that kind. Subject to that emendation, and having regard to the primary object of the clause, I think it would be unwise to extend its scope.
– I am sure that no honorable senator desires to deal other than justly with such a case as the Minister has suggested. I do not anticipate any difficulty arising if we strike out the word “physically.” If we make that amendment we can put the clause in proper form by leaving out the provision for an “ indorsement on the certificate.” I do not think that an indorsement should be placed on a certificate for all time, and whether rr.y amendment is agreed to or not, the provision for indorsing ai certificate should be struck out. An indorsed certificate would be practically useless to an officer. Once a certificate is blemished it loses its value, to a great extent.
– Would the honorable senator take the certificate from a man ?
– No. Whilst there is any reason for challenging a man his certificate should be held, but it should not be indorsed.
– Suppose it was found that he had lost his sight; would the honorable senator hand the certificate back to him?
– No. That case could be met by retaining the certificate. If it is found that a man has certain physical or mental defects, surely it will be sufficient to record the fact in the Court of Marine Inquiry without putting a black mark on his certificate.
– Would the honorable senator retain the certificate altogether?
– The certificate of an officer should be retained for the time being. But as soon as he was fit to resume duty it should be handed back to bini without bearing a black mark on it.
– But what would he do in the meantime?
– He could not go to sea without a certificate, and a record of his condition would be preserved in the Court of Marine Inquiry. That would be eminently fair to the public, and, in the long run, it would be much more satisfactory to the holder of a certificate.
– Does not the Court sometimes take away a master’s certificate and issue a mate’s certificate to him ?
– That would be much more considerate than to hand back to a man a certificate which would always be indorsed with a black mark. We treat our criminals much more leniently. We do not require them to carry the brand of criminality throughout their lives simply because they have once made a mistake. Unless the word “ physically “ is struck out very unfit officers may go to sea. To all appearances they may be quite fit to perform their duties, but as soon as they get to sea they may give way to the drinking habit, and go on the bridge in a state of drunkenness, to the danger of all the persons in their charge. Under the clause as it stands the Minister would have no power to deal with the certificate of a man who had been guilty of such misconduct. But if the word “physically” is omitted he would be able to deal with any cases of unfitness which might me brought to his notice.
– I wish to suggest the adoption of the wording of sub-section 2 of section 24 of the corresponding provision in the New Zealand Act.
– It refers to eyesight only.
– It reads-
If the owner requires- the master or mate to submit to an examination for eye test, or if the Minister has reason to believe that it is advisable for the safety of the ship that an examination be made, it may be made.
– For what? Eyesight only.
– I do not know that it is confined only to an examination with respect to eyesight, and, even if that were so, that objection might be met by the adoption of the wording of the New Zealand section with a slight amendment. We might use the words “.or if for any other cause, the Minister has reason to believe,” and so on.
– The clause before the Committee is more comprehensive than the New Zealand section.
– I have suggested an amendment of the wording of the New Zealand, section which 1 think would meet the objections raised to the clause before the Committee. I think it would not be wise to leave out the word “ physically “ as proposed by Senator de Largie. On the other point I am not sure that the New Zealand Act requires that the finding after an inquiry shall be indorsed on the certificate. My present impression is that it would be better to pass the clause as it stands, but I should prefer the New Zealand section, amended as I have suggested, to the clause, if amended as proposed bv Senator de Largie.
– I agree that every safeguard should be provided in the interests of the travelling public and the ship-owner, but we should also provide some protection for an officer against whom a charge of physical unfitness is made and is not sustained. Honorable senators will see that such a charge might be laid a few hours before the sailing of a ship. It would not wait for the officer, and he might as a consequence be out of work for a considerable time. In a despatch on the subject of marine inquiries received from Mr. Joseph Chamberlain when he was Secretary of State for the Colonies in 1898, a reference is made to this matter. I quote the following from that despatch -
The observations which follow, so far as they ref-‘.r 10 the certificates of ships’ officers relate only to Imperial certificates, and not to local certificates, granted in a British Possession, merely in order to qualify ships’ officers for the coasting trade of that Possession.
Even if no Imperial certificate be at stake in a shipping inquiry it is obviously desirable that the conditions and procedure under which the cause of a casuality to a British ship owned in the United Kingdom or some other part of the Empire, may be inquired into and reported upon by a Colonial Court of Inquiry should be practically the same throughout Her Majesty’s Dominions, for the report of the Court may involve serious consequences to the owner of the vessel in connexion with questions of insurance or the interests of charterers, while the interests of owner of cargo and others may also be injuriously affected.
Of course we are raising a new point now.
– The provisions of this Bill are quite in accord with the despatch to which the honorable senator has referred.
– Just so; we are entirely agreed that the procedure should be as nearly as possible the same throughout the Empire. The point to which I wish to direct special attention may be put in this way : An officer holding a certificate in a foreign-going ship might be asked to undergo a medical examination. Would he do so ; and if not, could we force him to do so? Under this clause I do not think we could. I have no doubt that we should have the power in the case of an officer engaged in the Australian trade, but I doubt very much whether an officer in a foreign-going ship, even though he held one of our own certificates, could be compelled under this clause to undergo a medical examination. That is a matter which requires serious consideration. I have said that officers should be protected against unjust charges under this -clause, and there should be some provision for compensation where a charge is not sustained. I take the case of an owner having engaged a master to get a ship ready for sea. He incurs perhaps a larger expenditure than the owner anticipated, and as a result a quarrel arises between them. When the ship is ready to go to sea, the owner wishing to be rid of the master, under this clause trumps up a charge against him, which cannot be heard at once. The ship is sent to sei under another master, and the man against whom the charge is laid loses his employment. When the matter is investigated by the Court of Marine Inquiry, it is found that the charge is not sustained, and what then is the position of the master?
– He has a right to compensation, of course.
– From whom? As I read the clause, the Minister takes all responsibility.
– I have been surprised to hear my honorable friend doubt the ability of our Courts to deal with Board of Trade certificates in cases of this kind ; when he must know that under the laws of the States we have times out of number dealt with such certificates where officers have been held to be guilty of misconduct.
– I admit that.
– It is rather too late in the day to suggest a doubt as to our power to do that.
– I refer the honorable senator to the last despatch from the Imperial authorities.
– That despatch does not dispute such a position for a moment. No exception is taken to this clause in the last despatch, and it clearly applies to British and foreign-going ships. It would have been unfair and unreasonable for the Board of Trade to take exception to the exercise of this power when it has already been conceded for so long. I may have occasion at some time to show honorable senators how far we have been prepared to go to secure that uniformity of practice which the Board of Trade suggests. We recognise that it is desirable in the interests of all parties that we should do so. I hope it is quite clear that we have full power to deal with Board of Trade certificates in the case of charges of incompetence or misconduct. That has been the practice in all the States in the past, and no exception has been taken to it.
– But the law in the various States has always been similar to that under which the Board of Trade has been working.
– No doubt that is so, but the principle is involved, the right hasbeen conceded in connexion with all previous legislation in Australia, and the Board of Trade, as I have said, have taken no exception to this clause. As to the other point to which Senator Guthrie has referred and the illustration he gave, of an owner desiring to get rid of the master trumping up a charge of colour-blindness or something of the kind against him and then permitting the vessel to sail without him, the honorable senator assumes that the Minister would be very unfair and unreasonable.
– No. But that he would be made a tool of.
– Or that he would be made a tool of. The clause provides that-
T.f at any time the holder of any certificate appears to be physically unfit to perform the duties required of him, the Minister may require him to submit himself for medical examination.
If honorable senators suggest that the medical certificate will be part and parcel of the same conspiracy, I cannot argue the matter. That would be assuming inala fides on the part of the Minister, and of the medical officer.
– I do not assume anything of that sort.
– I am prepared to argue the matter on the assumption of bona, fides on the part of the Minister. His duty then would be to refer the matter to the medical officer. Should the officer declare that unfitness existed, and was likely to be of a permanent character, then, and then only, could the Minister require the holder to deliver up his certificate. In accordance with the suggestion of my honorable friend, I shall, at a later stage, move the insertion of a new paragraph, which will provide for cases in which officers refuse to submit themselves to a medical examination. But I would point out that if a captain acted in the malevolent manner suggested he would render himself liable to very heavy damages. My honorable friend will therefore see that the clause provides for the very contingencies to which he has pointed. The fact that it has not been taken exception to by the Board of Trade is fairly conclusive evidence upon that point.
Amendment agreed to.
– I wish to direct the attention of the Vice-President of the Executive Council to the remainder of the clause. In my judgment, it is necessary to omit the words “ indorsed upon the certificate.”
– How can we strike out those words ? If the holder of a certificate is charged with something of which he is innocent, the indorsement upon his certificate would be that there was no case against him.
– Let us suppose that some trivial charge is preferred against the holder of a certificate, and that he is adjudged guilty of it. Why should his certificate always carry the record of his conviction for that trivial offence? For instance, a man might be convicted of having, been drunk upon duty. Under this clause that fact would have to be indorsed upon his certificate.
– The whole clause has been maimed, and I hope that it will be struck out.
– We can provide that the findings of the Court shall be recorded without insisting that they shall be’ indorsed upon the certificates of those who aro most immediately concerned. If a man has been found guilty of an offence, and has been punished by the withholding of his certificate for a certain period, surely after his disqualification has been removed that certificate ought not to carry the record of his conviction !
– He mav not be found guilty of a crime, but merely of physical unfitness, which renders his discharge of certain duties dangerous to the community.
– I know of ‘a number of men who have overcome the disease of drunkenness. Why should they be branded with the record of that infirmity all their lives?
– Will the honorable senator leave it to the discretion of the Court to say whether or not its finding shall be indorsed upon the certificate?
– The Court has power to do that under clause 357.
– In cases of misconduct.
– Yes, and drunkenness is misconduct.
– In order to secure the discussion of this matter, I move -
That the words “ indorsed upon the certificate,” sub-clause 3, be left out.
I shall afterwards move the insertion of the word “ recorded “ and the omission of the words “ and the certificate shall be returned to the person named therein.”
– The proposal of Senator de Largie would, if adopted, have the effect of nullifying the decision at which the Committee have just arrived. Let us suppose that, in Melbourne, a certain charge was preferred against the holder of a certificate, and that he was found guilty of that charge. Under Senator de Largie’s proposal the record of his conviction would be retained by the Court in Melbourne. That being so, the offender would not be so foolish as to again attempt to ship from this city. He would merely ship from Hong Kong or some other place with a clean certificate. I submit that where a man has been found guilty of any charge under this clause, the ship-owner who engages him will be cognizant of what has happened. In some cases a man may not be fit to take charge of steamers like the Lusitania, or a vessel of 10,000 or 12,000 tons, but may be quite competent to navigate a smaller vessel. The Board of Trade has given us power to suspend or cancel certificates, and we are now taking to ourselves only the power of indorsing them.
– Does the honorable senator still support their indorsement?
– Yes.
– Senator de Largie proposes that instead of the charge of which the holder of a certificate has been found guilty being indorsed upon the certificate itself, the record should be confined to the Court of Marine In quiry. Do I understand that he desires to give the officer thus convicted power to retain his certificate?
– If he is found guilty of any charge the certificate will be in the possession of the Court.
– It will be in the hands of the Minister.
– When the charge is made against the holder of a certificate, his certificate is delivered to the Minister.
– Yes. But does my honorable friend desire that the fact that an officer has been found guilty of some charge preferred against him shall be merely recorded by the Court, and that the person to whom that certificate belongs shall retain it without any indorsement ?
– When an officer is charged with unfitness his certificate is handed over to the Minister. Until the charge is disposed of the Minister retains the certificate. After the matter has been decided the certificate will be handed back to the officer, but a record will be retained in the Court.
– What is the use of that?
– Can the Minister mention any profession in which a man’s certificate is branded for any unfitness? I cannot remember such an instance, and cannot see the necessity for it in this case. Of course, there may be some risk if we do not take the trouble to publish the records of the Court. An officer may go to some other part of the world and secure an engagement. But he could not be engaged in Australia ; and I do not know that we are legislating for the whole world.
– If a lawyer misconducts himself he is struck off the rolls.
SenatorDE LARGIE.-And we can deprive an officer of his certificate if he has committed a sufficiently serious offence. But I see no necessity for branding his certificate for all time, because of some trivial affair.
– I think my honorable friend, Senator de Largie, would be well advised in not persisting with his amendment. As a matter of fact, having regard to the alteration made in the clause, it would be wise to strike it out altogether. First of all, misconduct such as drunkenness is already provided for in clause 357, which deals with charges of incompetency or misconduct. “ Incompetent “ is defined to mean “unable from any cause whatever to perform efficiently the duties of the person in relation to which the word is used.” I have already indicated the special purpose for which clause 18 was inserted. It is intended to deal with such cases as colour-blindness, liability to epileptic fits, or physical ailments of any character. But the word “physically” having been struck out, the clause is placed on a level with what is provided for in clause 357, and becomes unnecessary.
– Can the Minister instance any kind of professional certificate upon which charges are indorsed?
– No, but a ship’s officer, suffering from colour-blindness, is a menace to the community, and ought to be summarily dealt with. My honorable friend takes up the position that, although a man is suffering from colour-blindness, all that is necessary is to record the fact in the archives of the superintendent’s office, leaving the man to go to London or any other port with a clean certificate.
– No; if he is unfit the certificate will not be given up to him.
– I asked my honorable friend a question on that very point, and understood him to say that the certificate would be returned. What he desires is fully covered by clauses 365 and 357. The former clause provides for the cancellation of certificates. This clause was inserted for a special purpose, and that purpose having failed, the whole clause may as well be struck out.
– I think that the Committee has not grasped Senator de Largie’s purpose. He proposes to leave out of his amendment the words “ indorsed upon the certificate “ with a view to put in “recorded;” and he has said that he would also leave out all the remaining words of the subclause after the word “Court.” What he desires is, I think, that if an officer clears himself of a charge he should get back his certificate without a mark upon it. Suppose, however, that an officer is charged with being mentally unfit and the Court of Inquiry says “Yes; we find that this man is mentally deficient.” That finding would be recorded, and the Minister would retain the certificate. The officer might have to go into an asylum for a time. If he came out cured he should have his certificate returned to him without an indorsement upon it. All that would be recorded against him would be the entry in the books of the Court of Marine Inquiry, and the certificate would be as good as new. But if it were indorsed that the man had been mentally deficient no shipowner would intrust him with a vessel. His chance of employment would be killed for ever, and his certificate might as well be cancelled. What Senator de Largie is trying to achieve is that, if an officer clears himself of a charge of unfitness, he should get back, not a damaged certificate, but one clear of any indorsement. That is what I think he ought to get.
– Is not that provided for in sub-clause 4?
– No. That provision covers a man who has cleared himself from a charge. For instance, if he had been charged with being mentally unfit, and a mental examination proved that he was fit, there would be no indorsement, and his certificate would be handed back to him. It is only , after the Court has inquired into a charge that the Bill says that the record must be indorsed on the certificate. When the man comes back, having recovered from the illness, or freed himself from the charge of incapacity, he should not receive a certificate with a damaging indorsement upon it rendering it practically useless. The Vice-President of the Executive Council was not, I think, quite conclusive when he said that all that is desired is covered by clauses 357 and 365. Clause 357 deals with cases where damage has been done. I take it that clause18 is intended to meet the case of a captain who has become a dipsomaniac to the knowledge of the officers and the crew, but who, so far, has not wrecked a ship or done any damage, or brought himself under any provision in clause 357. If that clause is examined, it will be found that every sub-clause presupposes that something has occurred as to charges of incompetency against the master.
– Oh, no.
– The clause reads- (1). A Court of Marine Inquiry shall have jurisdiction to make inquiries as to all casualties affecting ships, or causing loss of life on or from ships, and as to charges of incompetency or misconduct on the part of masters or officers of ships, in the following cases, namely : -
– Under paragraphs d, e, andf, it is the same as may occur under clause 18.
– Where is the machinery to bring that clause into operation? A charge has to be made.
– Yes. And that is what will take place under clause 18.
– No. It says-
In that provision there is nothing about a charge.
– Read sub-clause 3.
– It reads-
I remind the Minister that before that stage is reached, the Minister can take action. He may take action not on a charge, but on a statement made to him. Under clause 357, however, a definite charge has to be made against a captain.
– So it is under clause 18.
– Take the case of a captain who has become addicted to the drinking habit. It one case it will be for an officer or a member of the crew to make a definite charge against the captain when the ship comes to port, but in the other case, an officer can go to the Minister, and tell him what happened during the voyage, and, if the Minister is satisfied, he can call upon the captain to hand over his certificate, and cause a Court of Marine Inquiry to be held to investigate the charge. In the latter case, the Minister makes the charge against the captain, but in the other case, an officer or a seaman is required to make a charge.
– Not necessarily.
– Take the case of a captain who has become mentally deficient, and against whom the officers or seamen have made a charge. If the captain had a lucid moment when he is being examined medically, and passes the examination, what will become of his accusers? They would have a very rough time, I presume, if they shipped with that man again. We have to consider the safety of the ship, the crew, and, it may be, the passengers, without doing an injustice to an innocent and competent officer. Under clause 357 it is proposed, in a case of mental deficiency which is not continuous but only occasional, to place the onus of making a charge upon the officers, or the officers and the crew. But under clause 18, the Minister can take action on any complaint or report made to him. The amendment will put the officer in a better position, because the clause, if passed in its present form, will practically damage a man for ever. The amendment will safeguard the crew, the ship, and the passengers by preventing a man who has become mentally unfit from having charge of a ship while he is in that state, and the moment it is proved by medical examination that he has recovered his faculties, he will receive his certificate, free of blemish or damaging indorsement. I hope that the Minister will accept the amendment.I think that if it is not carried, the clause had better be omitted, because it would be preferable to take the power of cancelling a certificate. I hope that the Committee will see that there is a good deal of reason for making the amendment, and that it is not open to the Minister’s criticism, because it does not give an officer freedom to wander round and take other employment while he is unfit mentally or physically.
– It seems to me that there is something to be said on the other side of this question. It should be regarded from the point of view of the officer. What is the present practice? If a master loses a ship, the Board of Trade cancels his master’s certificate, but does not prevent him from earning a living when he is well fitted to take another position as an officer. To many a man who has been guilty of losing a ship, no matter from what cause, and from whom his master’s certificate has been taken after an inquiry, there has been issued a mate’s or second mate’s certificate, so that he could go and earn a living at his calling. What will be the position if the amendment of Senator de Largie is carried? If a man’s sight is supposed to be defective, and it is proved on examination that it is not so good as it should be, his living will betaken away from him, because his master’s certificate will be retained. He will have no chance to find employment in any other capacity at sea until he can prove that he has regained his sight; Is there any reason why that should be done ? Owing to some defect, many a man may not be fit to take charge of one of the big ships running round the coast. I know men who, for some rare reason or other, have been taken out of big vessels on the coast, and put in charge of other vessels where they had not to take anything like the same amount of responsibility or risk, to carry a large number of passengers, to make as many trips, or to work strictly to a time-table, racking their nerves the whole time. In the opinion of their employers, those men, although not fit to take charge of first class ships, are fit to take charge of small vessels in the limited coast’ trade.
– Generally men who have lost ships have the best billets.
– Yes. Under the amendment, ‘if carried, every means of earning a livelihood is taken from a master against whom a charge of any description has been lodged, because, without a certificate, he cannot get a position of any sort’ as an officer. It would be far better, even if his certificate had to be indorsed, to leave that man an opportunity of getting employment - probably under the same firm, but not on one of their first-class ships - as a second or third mate.
– With defective sight.
– In all probability, yes. I may tell my honorable friend that on ships there are mates who do not take watches, and yet are officers. . If a man’s certificate is taken away, he is prevented from getting a position of that sort, and he is practically told to earn a livelihood at anything but his own calling, although he may be quite competent to take’ charge of a small vessel and earn a fair living.
Progress reported.
page 1789
Senator KEATING laid upon the table the following paper -
Lands Acquisition Act 1906. - Adelong, New South Wales - postal purposes. Notification of the acquisition of land.
Senate adjourned at 4.1 p.m.
Cite as: Australia, Senate, Debates, 30 October 1908, viewed 22 October 2017, <http://historichansard.net/senate/1908/19081030_senate_3_48/>.