4th Parliament · 3rd Session
The President took the chair at 3 p.m., and read prayers.
– I have to inform the Senate that, pursuant to the provisions of the Constitution, I notified the Governor of the State of South Australia of the vacancy existing in the representation of that State in the Senate owing to the death of Senator William Russell, and have received a communication from His Excellency the Governor-General enclosing a certificate of the choice of Mr. John Wallace Shannon as a senator to fill the vacancy.
Senator Shannon made and subscribed the oath of allegiance.
– Can the Minister representing the Minister of Trade and Customs say whether the return is yet ready for which I moved on the 1st August with regard to the quantity of foreign timber imported into Australia during the previous twelve months?
– Immediately the motion was passed, the Department got in touch with the various States in order to procure the desired information. No time whatever has been lost, but the information required by the honorable senator is extensive. We have received communications from all the States except Western Australia. The information from that State will have to come by post, and it is not expected to arrive for a few days. As soon as it comes to hand the return will be laid upon the table.
– I have just been informed by Senator Givens that he got a return only two months ago.
– Not up to date, though .
– It seems a long time to take to get the balance of the return ready.
– Order !
MINISTERS laid upon the table the following papers : -
Defence Act 1903-1911. - Military Forces - Regulations, amendments, &c. (Provisional). Statutory Rules 1912, No. 162.
Lands Acquisition Act 1906. - Land acquired at Port Augusta, South Australia - For Commonwealth purposes.
Quarantine : Report on Quarantine in other Countries and on. the Quarantine Requirements of Australia, by W. Perrin Norris, M.D., D.P.H., Director of Quarantine.
Bill read a third time.
Debate resumed from 9th August (vide page 1981), on motion by Senator McGregor - .
That this Bill be now read a second time.
– One marked feature of this Bill which will strike every honorable senator is its great severity, and I may say from my point of view, and I think from the point of view of the Opposition generally, and of all other liberal-minded men in the community, that its penalties are unduly and unnecessarily severe. In that respect I think that the Bill is a violent transgression of the opinion of all great modern jurists and penologists. I am tempted to point out how in every age penalties which are unnecessarily severe have inevitably defeated their own ends. The nineteenth century has recognised that principle. The battle for its recognition was begun about 2,000 years ago, and, if I may make a rather graphic remark, twenty-six centuries are speaking in protest against this kind of legislation. Honorable senators on the other side are giving their reasons for this departure, and, notwithstanding the historical protests of those twenty-six centuries, they will give effect to their opinions on this matter. But I make no hesitation in saying that if we are going to make a mistake about this kind of legislation, I would rather err with Solon than shine with Draco, or his twentieth-century descendant, the Australian Attorney-General. What is the defence hurled back to us when we point out these enormous penalties ? One argument is that the possible delinquents can bear the penalties. We have heard that view repeatedly expressed by interjections during the debate. From a Liberal point of view, almost, from a logical point of view, those who advance that argument ought to be ashamed of the position which they assume. There is not a single man in. .this.
Chamber who can predict who the delinquents may be ; arid legislation in anticipation of possible delinquencies, especially from the point of view that the possible delinquents “can bear it,” is founded, not on Liberalism, but more or lesson the spirit of legislative ferocity. The argument itself is one with which all who know anything of history are acquainted. It was the argument of the Star Chamber. It was the argument of the Inquisition. Very often, the victims of both those bodies were handed over to the executioner, who was instructed that the physical torture to be perpetrated should be adjusted to the capacity of the victim for enduring it. Although the penalty imposed by this Bill is chiefly pecuniary, the idea that possible de’linquents may be able to bear it, and should have penalties imposed according to the degree of their capacity for endurance, is identical in spirit, however much it may differ in other respects, with the torture penalties of the Star Chamber and the Inquisition. Another argument used for the Bill is that certain witnesses have delayed the proceedings of a Royal Commission. In the name of common sense, why should they not? The Constitution gives them a right of appeal. This Parliament cannot take that right away from them. Inasmuch asthe. persons who will be penalized by this measure have, in common with the rest of the community, to bear the expense of providing Law Courts, they should have an equal right, if they chose, of appealing to any Court to which the law allows them to go. How ‘futile such an objection is ! It is only- another method of trying to breathe revenge rather than to legislate. Even now the Bill, with its drastic clauses, its severe punishments, and its summary jurisdiction, cannot deprive persons of their right of appeal. They have that right, notwithstanding all the penalties imposed. Their legal rights will be the same, notwithstanding this Bill, as they were before it was introduced. Therefore, that kind of excuse is utterly flimsy in itself, and has only to be touched to show how hollow it is. It falls at once to the ground. I do not wish at this stage to enter into details. I wish’ to confine myself, as far as I can, to general principles. But I desire to draw the attention of the Senate to some of the very drastic clauses. We have here constituted what the Bill calls an offence. By clause 5, sub-clause i, clause 6*c and clause 6e, heavy penalties are imposed. The refusal of a witness to answer a question put to him by a Commission is constituted a continuing offence. Every time the tribunal wishes to bring a witness before it, and the witness refuses to answer, an offence is committed. Now, we know what indictable offences are under the Constitution. An accused person has secured to him under the Constitution the privilege of trial by jury. But there is a clear distinction in the Constitution between an indictable offence and an offence of another kind ; the main difference being that offences are triable by summary proceeding, whilst indictable offences must go to a jury. This Bill teems with provisions constituting indictable offences. But the tendency of the Bill, as has been the tendency of many other measures brought in by this Government, is steadily to deprive those persons who may come under it of a right of trial by jury. lt is a maxim of law that where an offence which would otherwise be indictable is constituted by Act of Parliament an offence punishable in a particular way by another tribunal, the offence does not become indictable. I do- not say that the principle as I have laid it down is applicable to all cases. It would seem that the Attorney-General has done all he possibly could in this Bill to deprive a person who. may be accused of an offence under it of the right to a trial by a jury, and has used every known provision of the law to bring him before a summary tribunal.
– All these dreadful things will not happen if witnesses w.ill only answer pertinent questions.
– Does the honorable senator put that forward as a reason for destroying trial by jury?
– It may be excusable for a witness to refuse to answer questions, but Senator Givens has not touched the point. I do not believe in the principle that in order to correct one evil it is necessary by legislation to inflict a greater evil on the community. The tendency of this Bill is distinctly to whittle down the provisions of the Constitution securing to delinquents the benefit of trial by jury.
– Have not all our Judges the power to commit for contempt?
– I shall institute a comparison between the power of a Royal Commission under this Bill to commit for contempt and the similar power possessed, by the Judges of the High Court. Iri clause 12 power is given to a
Royal Commission to commit an offender to gaol until the penalty imposed upon him is paid, and to enforce penalties by execution and distress, notwithstanding that the offender is in gaol. I can understand the inclusion of a provision of that kind in a Customs or Excise Act, but I cannot understand its appearance in a Bill of this character. This clause means, if it means anything, that a Royal Commission may commit a witness appearing before it to gaol for a certain term, either upon summary conviction or upon indictment, and may by execution and distress strip him of every penny he owns as well. Such a provision might possibly be excused if it applied only to powerful and wealthy companies, but this Bill is all-embracing, and may apply to a mere official of some trading company who may perhaps innocently fall within -its provisions. If there is a Draco as Chairman of a Royal Commission he may strain its provisions to such an extent as to absolutely ruin a witness. When a man is committed to gaol his imprisonment is usually accepted as an expiation of his offence. Even a felon after he has served his sentence is allowed to retain his goods and chattels. But we are asked to give a Royal Commission the power to deal summarily with a witness, have him detained in gaol, .and that is not to be an expiation of his offence, as he may still be ruined by the sale of his goods.
– Is there not some analogy between a Royal Commission and a jury?
– There is none whatever. Under this Bill the Chairman of a Royal Commission will be a sort of Czar.
– A Judge may commit a juror for contempt.
– That is so; but a jury may refuse to take the directions of a Judge, though a defendant may submit no defence to a charge brought against him. Under this Bill, if the Chairman ot a Royal Commission considers that an offence has been committed he may send a witness for summary conviction. The witness may be committed to gaol, and, after he has expiated his offence by imprisonment, there is .still the power of execution and distress upon his goods. I decline to assent to the proposition that our commercial community is so rotten as to justify these extreme and barbarous penalties. There is another feature of the Bill which must strike any intelligent observer as it strikes a lawyer. There is an attempt, under the guise of what is called contempt’ of a Royal Commission, to give to the Chairman, if he happens to be a Justice of the High Court, or of a Supreme Court, or a Judge of inferior jurisdiction, greater powers in the punishment of contempt than he would have sitting in his own Court. One of the provisions of this Bill is, in substance, that if any person by speech or writing utters what is false or defamatory with regard to a Royal Commission, the Chairman, if he be a Judge of the Courts cited, may commit him for contempt. In the case of the King v. Nichols it has been laid down by the High Court of Australia in unmistakable terms that the mere publication in a newspaper of something that, is false and inaccurate about the High Court, or a Judge of that Court, does not in itself constitute a contempt of the Court. The real test as to what is or is hot a contempt of the Court is not whether statements made are defamatory or false, but whether the effect of their publication is such that it may be calculated to impede the administration of justice. I hope that when we come to discuss the Bill in Committee the Government “will .permit an amendment to make it dear that the Chairman of a Royal Commission shall have no .greater powers in this direction than a Justice of the High Court. I may -mention, as part of the history -of the case of the King v.. Nichols, thats though great powers in relation to .contempt are conferred upon the Conciliation and Arbitration Court, and though that case arose directly out of statements made in .respect of that tribunal, yet, when the offender was proceeded against, the AttorneyGeneral did not rely upon the provisions of the Act relating to contempt of the Conciliation and Arbitration Court, but upon the fact that what was done or said by Mr. Nichols was contempt of the High Court itself. ‘The High Court, however, ruled that the statements published ‘by Mr. Nichols did not constitute contempt. It seems to me that in this Bill we are asked to deliberately flout that decision, because it is proposed to invest the Chairmen o’f Royal Commissions with powers greater than those which are vested in the High Court itself. If the powers of the latter tribunal are sufficient to insure that its proceedings sha’ll be conducted in an orderly manner, and to enable it to enforce its judgments against every man in the community, is it necessary to vest Royal Commissions with greater powers? There is another phase of this matter which naturally strikes one. One of the favourite methods of procedure adopted by the Stlar Chamber in its most severe days was to charge persons with libel or sedition, or with having used defamatory language, and to constitute it an offence against the King’s prerogative. Because of the alleged libel or offence against the King’s prerogative the accused were haled before the Star Chamber and by summary jurisdiction were frequently fined ; indeed, some were almost sent to execution. Under this Bill we are invited by the Attorney-General to make Royal Commissions like the Star Chamber - to empower them to declare that any cf-. fence against them shall be dealt with in the same summary way. In this connexion one is irresistibly reminded of the name of Strafford. We know the way in which he used the Star Chamber and its machinery. He began like the Attorney-General has begun, and it may be that the AttorneyGeneral will end as he did. I am speaking, of course, only in a political sense, because in these days we do not kill kings or execute statesmen. It is true that sometimes they are shot, but, as King Humbert remarked on one occasion, that is “ one of the risks of the profession.” For these reasons, I am justified in pointing to the parallel which exists between the legislation which we are now asked to enact and the methods which used to be employed in the old days, and which have been so universally execrated. Then I would direct attention to the fact that the first clause of the Bill seeks to alter a section of the Royal Commissions Act, under which the GovernorGeneral has power to constitute a Royal Commission. It is proposed to amend that section by giving to the Government additional powers to appoint Commissions under “Letters Patent of the King.” Here, again, the very words employed are reminiscent of the tyranny of past ages. The term ‘’ Letters Patent of the King “ is familiar to every constitutional lawyer, and, indeed, to every person who is seized of the development of British constitutional history.
– Are not Commissions appointed now under “ Letters Patent of the King”?
– The honorable senator has asked a question which it is remarkably difficult to answer - a question which, I venture to say, with all respect to himself, he cannot answer.
– Oh, yes, I can.
– I dare say there is a certain class of individual who can answer anything.
– I can plank down the proof under the honorable senator’s nose.
– I know that the honorable senator thinks he can do so. I recollect that that was the feeling which I experienced many years ago, when I was attempting to deal with the pons asinorum. I would like the Vice-President of the Executive Council, in replying to this debate, to tell us why it is proposed to clothe Royal Commissions with these increased powers, and also what will be their effect. I think that possibly the existing powers will not be very much enlarged by the use of the words which I have cited. But it is somewhat strange that in Australian legislation we should be asked to give powers to Royal Commissions appointed under “ Letters Patent of the King.”
– How can a Royal Commission be created except by Letters Patent ?
– They may be constituted under the general powers of the Government, and also by Statute.
– They have never been appointed in any other way.
– The Royal Commissions Act was passed in 1902, and under it the Governor-General is empowered to appoint Royal Commissions. I am not aware - I confess that I am speaking entirely from memory, and, therefore, subject to correction - that anywhere in Australia, certainly not under the jurisdiction of the Commonwealth, have Commissions been appointed by Letters Patent of the King. They have been created under the powers vested in the Government by the Constitution itself, and those powers have been exercised by appointment through the Governor-General. Therefore I ask, “ Why is it proposed to grant these additional powers? What is the difference between the powers of a Commission appointed under ‘ Letters Patent of the King ‘ and the powers of a Commission which is not so appointed ? “ I would also direct attention to the fact that, under this Bill, the powers of inquiry by a Commission are extended to matters which “ relate to, or are connected with, the peace, order, and good government of the Commonwealth.’’
These words are so important that they require an exp!anation, through the trained (channel I should think of the Crown Law officer. I do not think that even under Letters Patent from the King you can give to a Royal Commission powers to inquire into anything which is outside section 51 of the Constitution. That section empowers the Parliament to deal with all matters referring to the “peace, order, and good government “ of the Commonwealth in relation to the thirty-nine succeeding paragraphs, showing the ambit of its powers. The provision in this Bill seems to be an attempt to extend the powers of Royal Commissions to inquire into anything, provided that the subject-matter is directly or indirectly connected with what is known as “ the peace, order, and good government “ part of section 51 of the Constitution. I may say, on the other hand, that probably a constitutional lawyer would not feel alarmed over those words, and would hold, in harmony with repeated judgments of the High Court, that Parliament itself must be confined, so far as it is legislating with regard to the peace, order, and good government of the Commonwealth, within the ambit of the jurisdiction laid down in the thirty-nine paragraphs of section 51. But when we find a provision in this Bill that a Royal Commission may inquire into any matter which in any way relates to, or is connected with, any public power of the Commonwealth, it provokes anxiety, and is, at least, entitled to some explanation by the Government.
– It can inquire into a matter for exercising its power under section 128 of the Constitution.
– Possibly. The words which appear to me dangerous are those giving a Royal Commission powers to deal with and inquire into anything of a public nature - anything affecting the ;public welfare. If we could be perfectly certain - perhaps some constitutional lawyers are certain - that, notwithstanding these words, a Royal Commission, like the Parliament itself, cannot go beyond, and must be strictly confined within, the Constitution, all would be well. If that be so, why do the words appear in the Bill at all ? They would be unnecessary, if, notwithstanding what words may be added to the Act, a Royal Commission, like Parliament itself, was strictly confined within the ambit of its jurisdiction. I would now draw the attention of the few honorable senators on the other side who have re mained to listen to my speech to subsections 1. 2, and 3 of the proposed section 6b, giving the Chairman of the Commission the power to issue a warrant for the apprehension of any witness and to detain him at his will. The provision is worse than drastic ; it is extraordinary. To give to the Chairman of a Commission the power of detaining a witness as long as he chooses is certainly an arbitrary power. Are we to understand by that that we are going to give the Chairman the power to detain as he likes, and for what term he likes, subject, of course, to the provisions of the Bill, and that there is to be no appeal? If that be so, it would seem that the common law habeas corpus right, together with the statutory habeas corpus, has gone. This is a very serious matter. May I ask the Minister to take a note of my criticism so that in Committee he may be able possibly to explain away our fears. I take it that under these powers a witness may be right after all in his contention, but if it is in conflict with the Commission, or its Chairman, then the Chairman can enforce his way on the witness in the drastic form of detaining him as, he chooses. It is a very serious question whether we are going to allow, or whether we have allowed, a thing like that. It seems to me possible that the Government are seeking to deprive people of the benefit of the Habeas Corpus Act, and the habeas corf us procedure. The provision also says that a warrant may be addressed to any person, and that such person may break into and enter any place. That, too, is another drastic departure. I know that such a provision appears in the Customs Act and the Excise Act, for reasons which are obvious. But let me point out this contrast from the other point of view. If a person suspects that his goods have been stolen by a man and are stored in a certain place, and he wishes that place to be entered in order that he may discover, if he can, his stolen goods, he may apply to a magistrate for what is called a search warrant, and 1 believe that my memory is exactly ‘ correct when I say that, in the lower Courts, it is always addressed to a police officer, or a police constable. A man cannot get a warrant signed in the case of- stolen goods, take it outside the Court, and give it to any Tom, Dick, or Harry in the street, and say to him, “ Go and search anywhere. Break in anywhere, and try to find my goods.” He has, in “the warrant, to specify the place which he wants searched. This Bill departs entirely -from that procedure. lit gives to the (Chairman .of a Royal Commission power in .certain .circumstances to issue a warrant to he executed by any person who may .enter any place or building, and I believe ;that a building would include .a ship or a ;boat. These general warrants have been universally execrated and condemned by jurists in England. The battle as to “ the .exercise of these arbitrary powers under warrant has been fought out in England, but it extended oyer 200 years. The infamous powers of general warrants were finally put an end to and destroyed by three leading cases, which must be familiar to every student of constitutional law. These cases are Walker v. Wood in 1763, Leach y. Money in 1765, and Entinck v. Carrington in 1765. In Walter v. Wood, the whole question of general warrants was brought before the Court of King’s Bench, and they were universally condemned, and the warrants, when they were issued even in the name of the King, had to contain the names of places, the names of persons, and the names of documents which were wanted, before they could be executed.’ The tyrants in those days did try to get warrants of this kind without naming the persons, and the Court held them back. They did try to get hold of documents without naming the documents they wanted, and the Court held them back. Here we are, so to speak, in one bound going back to the very principle which has been universally condemned by the Court itself, and which are revolting and antagonistic to our modern spirit of British freedom. I shall conclude my criticism with the statement that there is no need for this Bill. Recent proceedings of a Royal Commission have shown that there is not the slightest need for its enactment. So far as we know, the law is sufficient as it stands. I know that this Royal Commission came in contact with, very probably, one of the ablest men in commercial circles in Australia. If he and his legal advisers thought there was a loophole in the law, and tried possibly - and with a good deal of excuse, no doubt - to evade some of the demands of the Commission, I am still of opinion that the law, as we know it, is ample. It is a display of Draconian spirit to bring in new legislation until every power of the machinery of the law which we have set up has proved to be ineffective for the purpose intended. It may be that, after all, on appeal, the powers which seemed to the
Court below ito be .within the Royal Commissions Act ;may -prove to be insufficient. It has ‘been the .practice of .every civilized Government in modern times to wait for a decision om .a law before asking Parliament to amend it. Take the celebrated .Osborne ease, where .the House of Lords held on appeal that trade unions .could not use their funds for political purposes. What was done then? As soon as that was declared to be the law of the land, and binding upon everybody, a Bill was brought in to do away with that judgment to a certain extent. But the Commonwealth Government, in their insatiable hatred, so to speak, of these large trading operations, want to anticipate the declaration of the law itself by some more or less fanciful or imaginary evils which they say are besetting the community, and of which, so far, in this Bill we have no distinct evidence. I think that a strong Commission will effect its purpose under the present law ; and no matter how you improve the law, how drastic and clear you may make its provisions, you will not save a Commission in the future, if it be composed of dunder headed Dogberrys from the effect of their follies and stupidities.
Senator Sir JOSIAH SYMON (South Australia) [3.54]. - It is customary - and very proper, I think - that we should examine a Bill with reference to the circumstances under which its introduction has been thought necessary, and particularly the mischiefs which it is proposed to remedy, and the remedy provided for them. That is, I think, peculiarly the case with respect to this Bill, in which a very great deal of interest has been taken, and about which much feeling has been aroused. The origin of the Bill is to be found in an existing Commission. That is very apt to be overlooked. We all know of what has been called the notorious Sugar Commission, which unfortunately arrived at a condition of cross purposes, at a condition which led to a suspension of its proceedings in orderto determine whether the refusal of a witness to attend was or was not justified, and that is a matter which is now sub judice. Shortly described, this is a Bill introduced to alter the law, to create new offences, to increase penalties in respect of, it may be, existing offences - at any rate, of matters pending before a Royal Commission. To give new powers of punishment to, to add; in fact, new terrors to the proceedings of; an existing body, which has nearly concluded its investigations, is unheard of as far as my experience goes. But whether it be unheard of or not, it does appear to me to require calm investigation. Very adequate, very strong, very convincing justification is required, on the part of any Government that introduces such a measure. I have not heard that justification yet, nor have I read it in any of the attempts that have been made to justify this Bill. It is just as if, in proceedings before a Court, it were disclosed that the accused was possessed of unexpectedly large means, and Parliament was asked, upon that discovery, to legislate to increase penalties for that particular case. In other words, if one may » use the phrase - which I think ‘has its origin on the stage - we have reached a point at which we are going to increase penalties, not to make “the punishment fit the crime,” but to fit. the pocket of an alleged offender. That surely is a course of action which requires some very strong argument to justify it. Such a procedure would, as I have said, be very strange in the case of a Court invested with all the powers, clothed with all the authority and solemnity, of a Court of justice. But I beg to remind the Senate that a Royal Commission is not a Court. It has none of the attributes of a Court. The Royal Commission which has given cause for the introduction of this Bill was not created for the purpose of administering justice. It was established for the purpose of making certain investigations.
– Securing information.
– I quite agree. It was established for the purpose of securing information. Those Royal Commissions that are established for the purpose of securing information are usually composed of laymen and experts ; or, it may be, if there is a political element involved, of those who, in the arena of politics, have a particular interest to look after, or have a particular familiarity with the subject-matter to be dealt with. Naturally so, because such bodies are not expected to adjudicate. All that they can do is to inquire. They may have to inquire, as this Commission is inquiring, into matters of economic importance, into matters affecting trade and commerce in a particular sphere. As to this Commission, I will not use an expression which has an offensive ring about it; I will not say that it is partisan; but I will say that it is a body notoriously wearing a political complexion. It was appointed, as one of the parties concerned evidently believes, not so much for the purpose of gathering information, like the well- known Tariff Commission - which, I may remind the Senate, was composed almost equally of Free Traders and Protectionists - but to collect material on which, probably, to found a prosecution or legal proceedings of some kind. That is openly confessed. It is said - and we are not concerned to deny or to pronounce one way or the other - that that was in the mind of the promoters of the Commission. The Sugar Company was looked upon as a gigantic combine, and as embodying all the worst features of a monopoly. I do not look upon the company with any particular favour myself, but it is entitled to justice, all the same. At all events, it was an open understanding in this country, and was generally believed from end to end of Australia, that the Sugar Commission was organized for the purpose of securing material to bring about a successful prosecution of the company. Naturally, therefore, it was not viewed with favour by those before whom was held the possibility of prosecution. They could not be expected to regard with favour the machinery by which material was to be collected for the purpose of their own conviction. Whilst we may feel that those connected with the Sugar Company have been taking advantage of everything which was in their favour, which of us can condemn them for that ? And which of us is to justify the introduction of special legislation in order to pillory them, or to put them, so to speak, to the torture? On the one hand you have one of the parties cited, who are supposed to be the intended victims, and are naturally, therefore, resentful of these proceedings. We cannot wonder that they did resent proceedings the object of which was to submit them “to searching investigation arid cross-examination for the purpose of a prosecution. But because of that we have introduced provisions which are certainly not consistent with the law of England, and which would not be tolerated for five minutes in an ordinary Criminal Court; which, indeed, only find an analogy, as far as I know, in the law of France. No man accused of an offence is liable to be compulsorily examined, and crossexamined, or to have inquiries directed to him, in order to force him to convict himself out of his own mouth. We know that an ordinary policeman says to a man arrested, “ You are not obliged to say anything, but if you do say anything voluntarily, I warn you that what you say may be taken down and used against you at your trial.” The parallel here is that these men are not to be entitled to the privilege of an ordinary person accused of one of the meanest of offences, but they are to be subjected to fresh legislative instruments to coerce them into admissions. I am not here as a defender of the Sugar Company, nor am I here to question the desirableness of establishing Royal Commissions, which are the counterpart, we must not forget, of Select Committees of this Parliament. There is this difference, however, between a Royal Commission and a Select Committee : if a witness does not answer a question before a Select Committee, or is recalcitrant, the matter has to be reported to Parliament, and dealt with there, where it can be thoroughly investigated. I do not question at all the propriety or the desirability - if you like, the necessity - of this kind of investigation to secure information. But in judging of the attitude of those from whom the information is sought, you must consider the circumstances and how they may think it affects them. Again, I remind the Senate of the excellent Tariff Commission. As long as Commissions are established honestly and fairly, I do not believe that you will ever experience any serious trouble in securing the information you require.
– Is the honorable senator suggesting that this Commission is a partisan body?
– I think that the conviction of the people of Australia is that the Commission is a partisan body - except, of course, the Chairman, to whom I shall refer separately. In my opinion, that is a general belief.
– The honorable senator’s opinion is the most valuable one just now. Let us have that.
– I prefer not to sit in judgment. But I know what the common belief is, and I think there is a good deal to justify it. I am not trying these men; but if I were trying them, I should give them, what this Bill does not give to witnesses, an opportunity of being heard in their own defence. I venture to think that there is reason to suggest that, as there is so much smoke, there is probably a little flavour of partisanship about the Commission. I am not speaking qf the Chairman. I am speaking of the Commission apart from the Chairman. There seems to be reason to fear that they are more or less saturated with the existing feeling about the enormities - for all I know they are enormities - of the Sugar Company. It is very difficult to suppose that there is no ground for the Sugar Company’s supposition that the Commission is not friendly to them. I think that is putting the matter as fairly as one can to both sides.
– Even a Law Court is not favorable to any one who has done wrong.
– But a Law Court has, in the first instance, to arrive judicially at the conclusion that the some one has done wrong. This Commission, however, had apparently arrived at the conviction that somebody had done wrong before it started:
– A person who is arraigned before a Court does not like the Court.
– But he is only convicted after a judicial investigation - an investigation that has in it no element of preconceived ideas. The Judge and jury do not know the man who is put on trial before them.
– The interjection shows that Senator McGregor thinks that the Sugar Company is being charged with something.
– That is another circumstance in connexion with the Sugar Company that has to be remembered. It may have been a monopoly for the whole period of its existence, as far as I know. But I do not think that that is what has made it so potent and so solid a monopoly as it is at this day. Is not that due to the action of many of my honorable friends opposite, in the early days of this Parliament, when they voted for those enormous sugar duties ?
– I think it was. But let us come back to the point. As I have already put it, can there be any wonder that there should be, in connexion with this Commission, friction, difficulty, and perhaps resistance? Surely those conditions were likely to be promoted under circumstances such as I have summarized. My honorable friend says that things of that sort might happen in a Court. So they might; but they might much more readily happen in connexion with a Royal Commission. For that reason we have had more heat introduced into this debate than was noticeable in any debate we have had for some time. But these are not reasons for introducing what Senator St. Ledger has described as “ Draconian “ legislation, adding terrors to life and business. These are reasons for tact and care on the part of the members of Commissions, and a judicious discrimination in the conduct of their business. My belief is that a larger exercise of these qualities would be very much better in the interests of the community than the passing of such a Bill as this. For instance, hard things have been said about the Chairman of the Sugar Commission, who is a Judge of the Supreme Court of South Australia. But he is not sitting as a Judge when acting as Chairman of the Sugar Commission. He is a man with like passions and frailties with ourselves. “We must remember, if he has been betrayed into an indiscretion, as I think must be admitted, that the circumstances are quite unconnected with the judicial position, or with the usual functions or administration of a Court. He has himself frankly admitted it, and apologized for it. I venture to say that any one who has had the privilege, as I have had, of knowing Sir John Gordon for many years, off and on the Bench, will admit that if he had been sitting in a Court administering justice In the ordinary way as a Judge it is unthinkable of him that he would commit any breach of judicial restraint or decorum.
– Then the honorable senator does not approve of his being described as a ,r chartered bull v.”
– I think, as every one must, that he was betrayed into an indiscretion, but that is past, and I take leave to say that he was not sitting on the Commission as a Judge. He was not sitting in a Court. We must not forget that under the robes and ermine of a Judge there is the human being. When Sir John Cordon was induced by the Government to step down from the Bench and take his place as Chairman of a Royal Commission of a political complexion - I shall not -say of a partisan character - he was there -simply as a member of the community and a. citizen of the Commonwealth. It is for that reason I say that those who are to be condemned in the connexion with the proceedings of the Sugar Commission are the Government who invited and induced Sir John Gordon to leave his seat on the Bench and take the position of Chairman of that Commission.
– Surely he was a free agent.
– If he was competent and qualified for the position, what blame can attach to the Government for appointing him to it?
– I say that he ought not to have been placed in that position at all.
– Are not Judges often appointed on a Royal Commission?
– The honorable senator should know that they are.
– I have answered the honorable senator’s question. If he says they are, will he mention a case?
– I know that Judge Murray was appointed on a Commission.
– Judges are often appointed on Commissions in New South Wales.
– Mr. Justice Cohen was not long ago appointed on a Royal Commission.
– What sort of a Commission? Senator Long has mentioned the Parnell Commission, but that was’ not a Commission like the Sugar Commission. It was a special Court created to try the truth or otherwise of a libel -published by the Times.
– It was a special Commission.
– It was called a special Commission, but it was a Court.
– It was not called a Court.
– It does not matter what it was called. It was a Court. The Sugar Commission is not a Court, and one of the most mischievous blots in this Bill is that it seeks to give a Royal Commission the powers of a Court in the matter of punishment for contempt.
– In the Act creating the Parnell Commission the Judges are always referred to as “ Commissioners.”
– The Parnell Commission was so called because it was not a permanent Court. It was specially created because the ordinary Courts of the realm could not undertake the duty of trying that case. It was a special Court created to try the case between a body of men known as “ Parnell ites “ and the Times newspaper.
– Mr. Justice Hood was appointed with Mr. Knibbs as a Commission to inquire into the matter of insurance.
– Where was there anything political about that?
– There is nothing political about this.
– The Sugar Commission is full of it. On Friday Senator Findley, by interjection, absolutely declared that the object of the Sugar Commission was to conduct proceedings with a view to destroying the so-called monopoly of the Colonial Sugar Refining Company. That undoubtedly was the object of the Commission. I say that the circumstances attending such a Commission are such that, in my view, it was wrong for the Government to appoint a Judge to take any part whatever in it. It is like politics which are compared to a blacksmith’s shop, where sparks are always flying about. It is because of these circumstances that the condition of conflict and friction was created which gave rise to matters on both sides that it would have been very much, better if they had not happened.
– To sum it up, the honorable senator says that Judge Gordon knowingly accepted a position on a partisan Commission.
– No; I do npt. I do not suppose that he knew it was a partisan Commission at all.
– The Government knew it.
– That is so.
– And selected Mr. Justice Gordon for that purpose.
– I do not think my honorable friend ought to say that. I am putting the position as to the way in which it will be affected by this Bill.
– Would the honorable senator disqualify a Judge from sitting on a Commission?
– What has that to do with what I am saying? Of course, there are Commissions on which a Judge might sit. I am looking at the Sugar Commission from the stand-point which it occupies in the opinion generally of the people of Australia.
– I asked my question in relation to the Bill we are now discussing.
– In relation to the Bill we are now discussing, I would not have a Judge appointed to such a Commission as the Sugar Commission from any Bench in Australia.
– No one could compel his: acceptance of such a position.
– The Judges ought to be left to themselves, free of all political matters. A Judge is not supposed to have any knowledge of the political element introduced into an inquiry of this kind.
– Then he must be a very great fool.
– The very reason why Judges are supposed to be deprived, to a large extent, of social and other privileges of ordinary citizens is in order to keep them, so to speak, from dangers which might otherwise arise to their judicial position and reputation. -If you put a Judge into the position of a member of a Royal Commission in connexion with which a political element may be rampant, you are putting him into a position of danger to the office he holds, and one in which he ought not to be placed.
– I should think that the fact that a man is a Judge fits him for such a position.
– Let us consider the Bill which has been introduced in these particular circumstances.. A condition of friction having arisen in connexion with the Sugar Commission, proceedings were taken with a view to enforcing the attendance of a witness who refused to attend. I agree with the honorable senator who last spoke that there is no need whatever for this Bill. It is altogether without precedent. There is no adequate justification for it. If there is a condition of inconvenience, or of scandal, if honorable senators please, in connexion with the length of the proceedings instituted for the punishment of a witness who did not attend, that is not remedied in any way by this Bill. We shall have very much the same difficulty hereafter that exists now. In the clause of this Bill which deals with such matters, the only difference is that we provide two or threealternative proceedings instead of the simple one before a Court of summary jurisdiction. These proceedings in respect of offences which are not indictable may betaken in the High Court by information or appropriate proceedings, or by any person in any Court of summary jurisdiction. Recourse might be had to the High Court, which is fully occupied with many other things. Such a case would have to her heard, as ^ case of first instance probably, before one Judge, from whom, there would be. an appeal to the Full Court of the. High Court, and from which there, might’ be a, further, appeal. Such proceedings ‘are now, taken under the existing Act bt 1902. before a magistrate in his summary, jurisdiction. From him there is an appeal, apparently,” pending in the case o,f the Sugar Commission. ‘ In what way would this Bill expedite such proceedings?. Then we ‘have” a provision for an increase of the penalty,. Under this Bill, the penalty., instead of being limited to a maximum of ^50, is to be increased to .£509.” Vhat is the use. pf putting, that provision upon paper, seeing that the minimum penalty may be. just what it may be now ? It would be a new and startling doctrine, to. promulgate, that any Court should’ impose a penalty according to the length of an offender’s pocket, and np,t according to the nature of the offence, of which he is adjudged to be guilty! I come, now tq certain provisions which seem, tq me absolutely, unjustifiable. Under, clause 7,’ a man may be’ arrested and brought before the. Comsmission. l(ie may b,e kept in custody at the will of the Chairman., it may. be. until he rots, and he is to have no opportunity, pf regaining his liberty,” except by ‘ the exercise.’ of that will Such a provision would practically. repeal the Habeas Corpus Act. In addition a being kept in custody at the, will pf- ‘the ‘ Chairman, suB-paragra’ph 4 declares that his arrest arid imprisonment without any limited duration shall npt relieve him from the other penality’s provided by the Bill. “In, other, words, he may be punished twice over. I do not know who is responsible for this remarkable conception. Not merely. pay a “man be imprisoned for an unlimited term under the first part of clause 7, but, under the second portion of it, he may be punished a second rime.
– He “may” be punished.
– He has -no control over the matter. “ Let us suppose that we have a Commission appointed whose members are inspired by very strong feelings. In such circumstances, we” do not know where a provision of this character would land us. A Commission is not a Court which is controlled by judicial ruj.es, -even in regard to the questions which it asks and the evidence which it extracts. “Yet it is to bg left to the will or temper of the Commissioners to determine the punish ment to which any person who may seem to them to. have offended may be subjected,.
– Does not the law of evidence govern the testimony given before a Royal Commission?.
– There are no, such strict rules. The” Commissioners may take hearsay evidence, or any sort of evidence that they please. They may make such inquiries as they may deem’ fit, and may accept evidence in any form which may’ seem to them to be right. Then” clause 2 declares that a witness must produce documents, the words ‘ 1 material to the subject-matter of the inquiry, ‘ ‘ which1 appear ‘in the principal Act, being omitted; ‘so that he may be required to produce his bettingbook, or anything of that kind. In a later’ clause,- an amendment is proposed, which affirms that a witness shall” not be liable to’ be. convicted - thus “practically” repealing the previous provision– i,f he proves that the books or writings which he has failed to produce are not relevant to the inquiry. Why, then, is he to be subject to arrest if he is in possession of” documents which are not relevant to the inquiry, and why is his failure to do sp constituted an offence? Then sub-clause 6e of clause 7 provides -
Where any person, who has been convicted qf any offence against’ section 5 or section 6 of this Act, is subsequently convicted on information by the Atto’rney-Gene’ral of any’ ‘offence’ against either of those sections,’ committed by him after the first mentioned conviction, and in relation to the same commission, he shall be liable to a penalty of not less than Five hundred pounds and not more than One thousand pounds, and ‘ to imprisonment for such period n’ot exceeding three months as the Court thinks fit to order. ‘ ‘
What is the use of embodying a provision of that kind in the Bill? ‘If a man may be arrested and may’ be kept in durance vile, at the caprice pf the Chairman of a Commission, what opportunity has he of committing a second offence? The provision is simply tantamount to holding out an empty threat! I come now to the most remarkable “provision in the’ Bill. ‘ I refer’ to sub clause 6 o, which reads- 1 “
Any person who wilfully insults or disturbs a “Royal Commission’ - ‘ ‘ ‘ ‘ :…….. “
Does that mean that, if he snores or speaks to his neighbour, he “ disturbs “ the Commission ? -The Commissioners may foe very sensitive gentlemen, or their tempers may be unusually susceptible and irritable.
– He may sneeze.
– There ought to be some definition of “insults,” and of the word “ disturbs.” The subclause continues - or interrupts the proceedings of a Royal Commission -
Suppose that a man rises to make a protest, and is told by the Chairman of the Commission to sit down. Or suppose that, like counsel, who are bound to do the best that they can for their clients, he “ respectfully persists “ ?
– Suppose that he continues to read when he is asked a question ?
– That would not be interrupting the proceedings of a Commission. The sub-clause further says - or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any wilful contempt of a Royal Commission, shall be guilty of an offence.
Who is to be the judge of all these matters?
– Under what heading would the honorable senator bring continued reading by a witness when he is asked a question ?
– I should not trust myself to a body of this kind when its feelings are excited. Under the Bill, the whole place would be like a deaf and dumb institution. If a person writes words which are false and defamatory of a Royal Commission, he merely invites an action for libel. But this is a new method of prescribing what shall constitute a libel on a Commission. Without any provision pf this kind, I think that a man would, as the law stands, expose himself to proceedings for libelling a Commission. The vice, however, is present in the second part of this sub-clause, which says -
If the President 01 Chairman of a Royal Commission or the sole Commissioner is a Justice of the High Court or a Judge of the Supreme Court or County Court or District Court of a State, he shall, in relation to any offence against sub-section (i) of this section committed in the face of the Commission, have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in face of the Court, except that any punishment inflicted shall not exceed the punishment provided by sub-section (i) of this section. o
In other words, the President or Chairman of a Royal Commission is to sit in judgment upon what, if proceedings were taken for criminal libel, would be dealt with by a Judge and jury, and he is to do so whilst suffering under a sense of personal grievance. Is that the way in which justice should be administered ? The determination of the question of whether the proceedings of a Commission have been interrupted or disturbed is to be remitted to its Chairman ; but that is not the worst feature of it. What I wish to point out for the consideration of my honorable friends opposite is that the insertion of this provision relating to contempt is based upon an entire misapprehension as to the jurisdiction of Courts of Justice in relation to contempt. I have never heard of a body such as a Royal Commission, or one exercising similar functions, merely an inquiry, being intrusted with the powers which havecome down from century to century to our Courts, and which enable them to punish for contempt. The power to punish for contempt is vested in ‘a Court to enable justice to be administered. It is in furtherance of the dispensation of justice; but even then, it is very rarely exercised. Contempt of Court does not arise in consequence of something which may affect merely an exaggerated sense of personal dignity, or personal comfort, or personal reputation of a Judge. No Judge has a right to allow such considerations to influence him, because histemper might be brought into play. He is only justified in exercising his jurisdiction! as to contempt if what has happened is likely to interfere with the administrationof justice - to disturb its flow or interferewith its direction. Oswald on Contempt of Court -
The law has armed the High Court of Justice with the power, and imposed on it the duty, of preventing bretti manu, and by summary proceedings any attempts to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals, that insults to Judges are notallowed.
If we transfer to a Royal Commission jurisdiction of this character, is it not likelythat it will . be exercised whenever the members of that body feel or fancythat their dignity or reputation has been assailed? This Bill in the formin which it was originally introduced” in another place contained the words- “ bringing it into disrepute “ in lieu of thewords “ false and defamatory.” I say,, without hesitation, that’ if this power be committed to Royal Commissions, the members of those bodies in a moment of irritation may exercise it merely because their’ own sense of personal dignity has been wounded. It is an innovation of the worst’ description to confer such a power upon any body of men who do not answer to the wellknown description of Judges sitting in a Court and exercising the functions of a Court. . The same authority says -
It should always be borne in mind in considering and dealing with contempt of Court that it is an offence purely sui generis, and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other case be permissible or even tolerated.
It is highly necessary, therefore, in all questions of this nature, where the functions of the Court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and deliberation, and that when any antecedent process has to be put into motion, every prescribed step and rule (however technical) should be carefully taken, observed, and insisted upon.
We have not the machinery in such a body as a Royal Commission to deal with the thing in that way, and for that reason, in nearly all instances where there is a contempt - there are very few cases in which contempt is punished by a Judge on the spur of the moment - proceedings are directed to be taken in order that the matter may be investigated in the ordinary way -
The policy of permitting Judges to de’termine (except in cases of open and undoubted insult to their persons or authority while actually engaged in administering justice) what is or what is not a contempt of their own dignity or power has been, and may still be, with wisdom doubted. In a note on Rex v. Almon, referred to in Campbell’s “ Lives of the Chief Justices,” it is stated that although the power to proceed by attachment in the case of a libel published on the Judges is undoubted, yet “ the preferable course is to proceed by information or indictment so as to avoid placing them in the invidious situation of deciding where they may be supposed to be parties.”
Unless the Minister can point to some precedent for this provision, or invite the Senate to the consideration of some authority for committing to a non-judicial body, exercising purely inquisitorial powers, they should abandon the provision. Some ‘day or other it will come home to roost for themselves. I am not defending anybody, and I do not want any witness before a Royal Commission to abstain from attending or answering questions which are properly put, or to throw obstructions in the way. I think that the present law for that purpose is really sufficient, but if it is not sufficient - and I am sorry that it should be attempted to be altered while proceedings are pending - here after I shall be one to readily enlarge it, because of the difficulties which lie before us in regard to monopolies, and all that sort of thing. I am with my honorable friends opposite in trying to put all- these things down if they are inimical to the public interests. But that ought to be done calmly, and apart from any friction or indignation which may be caused by the particular circumstances of this case. I do ask my honorable friends opposite not to take a step of this kind - to put in the hands of any one the power, it may be in a moment of temper, to which the best of us are liable, of imprisoning a witness simply because he has come to the conclusion that the man has disturbed or said something derogatory to the personal dignity or hurtful to the feelings of a member of the Commission. The provision is to apply, not to the case of the Sugar Commission alone - we may dislike their methods or not, as we please - but to the case of any Commission which may be appointed. My honorable friends opposite may have a Commission appointed by another Ministry to inquire into matters affecting grave and widespread labour questions. They may not like to have these matters investigated, they may like to assert themselves with conviction and passion ; but if they do so, and if the Commission includes men who are, perhaps inspired with feelings which are not friendly to their organization or their system, they may have these powers put into force without adequate justification, and they will have no power of appeal, and may be imprisoned. There will be no redress, no compensation, if ‘they are unjustly dealt with. Therefore I ask them to seriously consider this measure in all its far-reaching effects. They may think that they have a most excellent weapon to “ down “ somebody who they believe is acting not in the interests of the public. They may think that this is the very thing with which to accomplish their immediate purpose, but it will remain on the statute-book unless they are going to repeal it after the Commission has done its work. My honorable friends will have this drastic instrument permanetly embodied in our legislation, and it will be really a form of legislative rack and thumb-screw, a method of putting people really to the torture without hope of redress by means of an appeal, for offences on which the other party to the proceeding - those who have to examine - will sit in judgment. With a Commission it is the members who are the examiners. They may set out with a friendly or an unfriendly feeling towards the witness, or the cause or interest he represents. They may be biased in every way. They are not set to decide between one party and another. If each party were represented by counsel, there would be a person on each side making the examination, but here the Commission are, so to speak, the prosecutors ; they are the advocates for their particular view of the case.
– They are only the inquirers.
– The boundary between the inquirer and the advocate is very slender when an inquiry of this sort is taking place. A man must form some notion as the proceedings go on - a bent in favour of one side or the other - unless he is sitting to administer justice, which he is not doing. He may say. “ I am not deciding anything; I am expressing my opinion.” I have noticed that members of a Commission say things casually, or it may be, argumentatively, which they would not say if they had to decide the question, because it would look like prejudging it. They may form an opinion about the demeanour of a witness, and express it, which they would not do if the result of making the remark was, perhaps, to affect his fortune or his character. But they say freely what they think, and it is right that it should be done, because it is only by opening up what is in the inquirer’s mind, and the bent of his opinion, that the fullest information can be obtained. Yet these are the persons to whom my honorable friends are going to commit this power of summary - indeed, arbitrary punishment. I venture to suggest that that is the most conspicuous blot in the measure, which otherwise I think is unnecessary. The increasing of the penalties is nothing unless it is to invite the magistrates to measure the amount of the line by the pecuniary position of the offender. The other clauses to which attention has been called certainly should be remodelled or reconsidered, in order to prevent the possibility of a man being punished twice for the same offence or of being kept in prison without redress at the will of the Chairman of the Commission who may be temporarily affected, who may be betrayed into a failure of temper, which it is easy to see may affect his judgment, and lead to an act- from which certainly “I think the Chairman of this Commission would be the very first to shrink—-of doing an injustice to a witness brought before him.
– That the introduction of this measure is justified, I think, most reasonable men will admit if they will simply look at the result of the Royal Commission which is inquiring into the sugar industry. I think it is fortunate that its Chairman is not an active politician, that he is in no way identified with the Labour movement, seeing that such an important a question has arisen out of its investigations. Had the Commission been presided over, as is customary, by a politician, and had he been a representative of the Government of the day, we should have had the party element drawn into this discussion straight away, and our political opponents would have been quite justified, from their stand-point in arguing that it was the partisan character of the Chairman which was at the root of the trouble between himself and the witness, and had brought this matter to a head. It is very lucky for the Government and for the proper consideration of this measure that that argument cannot be imported into this discussion. There is no denying the fact that we have set out to solve a very large problem, and unless the Commission can probe every question to the utmost it will be impossible for them to proceed and bring in a satisfactory report.
– Satisfactory to whom?
– To the public.
—TO the peopple who appointed the Commission.
– To the people of not only Australia, but every country iri the world, because the enormous increase in the cost of living is one of the most serious questions of the day. It is not a problem which affects only this side of politics. I think that if honorable senators opposite represent the Liberal side in politics, which I refuse to admit that they do, knowing that very little liberal principle is recognised by them, they would be just as anxious as are we on this side to have some light thrown on this most important question.
– You are the Conservative or reactionary party just now.
– /The honorable senator, as the representative of the employing classes -in South Australia, .and the president of its Women’s National League, is entitled to hold whatever views he pleases, but I thin’k he will find, as has been shown at every election which has been held in recent years, that the people of Australia recognise that the Labour party is the people’s party.
– Was that shown at the last election in South Australia?
– Yes, even in South Australia it was shown. If honorable senators opposite are anxious to have the great question of the increased cost of living probed, and the causes of the increase traced, they cannot conscientiously oppose this measure. I am not in a position at the present moment to say that it is due to the operations of the Sugar Trust or the Meat Trust in Western Australia or any other trust, but we have good reason to believe that the tactics of these trusts are such that they have increased the cost of living. It is increasing in other parts of the world, and we want to know to what extent the operations of the trusts have caused the increase here. If we view it from that stand-point, we cannot but arrive at the conclusion that the proposed amendment of the law is an absolute necessity, unless we are prepared to see Royal Commissions appointed by the Federal Government turned into a laughing-stock, flouted, and denied the information which the public have a right to obtain by their means. When the Bill was introduced into the Senate, it appeared to be represented that there was only one question before it, and that was the character of the Chairman of a particular Royal Commission. That gentleman was denounced in the most violent language that could be applied to a man in his position. We heard the gentleman occupying the responsible post of Leader of the Opposition in the Senate denounce him as “a chartered bully.” Chartered by whom? Bullying whom? I say that he is neither the one nor the other. I quite recognise, that the Chairman rather lost his head for a moment, when he applied to one of the witnesses an epithet that was not altogether suitable coming from a man in his position.
– But he apologized.
– He apologized in the most abject manner. He tried in every way to make amends for the remark which he had employed. That being so, I think it was most uncalled for to apply such a term as “ chartered bully “ to him. I wish to put on record a cutting that has been handed to me by one of my col leagues. It is taken from a Sydney newspaper, and it shows, I think, that, in other ways from those from which we have been viewing the subject, the Bill before us is to be justified. We must remember that all Commissions of inquiry have to depend more or less upon evidence relating to public companies, or other business concerns. Sometimes the evidence of accountants is of material importance. If we find that accounts are “ cooked “ for the purpose of misleading the public, a large vista io opened up as to the way in which not only people generally, but Royal Commissions, may be misled in the evidence which is given. From that point of view alone there is good reason why Royal Commissions should have the utmost power to probe matters to the bottom. The cutting which I wish to quote reads as follows : -
Those figure jugglers known as accountants are alarmed at the Royal Commission Bill now before the House of Federalists. The C.A. Association had a blow out at the Australia on. Thursday night, and the Chairman, Frank Yarwood, is reported to have got the following; chunk of wisdom off his chest : - “ It is my personal opinion that if public accountants arebrought under the influence of Royal Commissions, such as is presaged in the Bill now before the Federal Parliament, and are asked to divulge the private affairs of their clients, it will not be long before some of us are in Darlinghurst Gaol.”
– From what paper is the honorable senator quoting?
– From a Sydney newspaper.
– What paper?
– The cutting was handed to me.
– Is the honorable senator ashamed to mention the name of the paper ?
– I have not got it.
– I think the honorable .senator ought to ascertain the name-.
– The comment of the newspaper on the passage quoted is as follows : -
No utterance could have been more eloquent in favour of the proposed legislation. People are told “figures cannot lie,” and look at accountants’ certificates as reliable. If matters be as bad as Mr. Yarwood predicts, well - we’ll have to enlarge our gaols, that’s all.
When we have an admission of that kind from a gentleman occupying the position of the chairman of such a body - an admission that the accounts of public companies are so unreliable that those who are responsible for them may be put into gaol if they are probed to the bottom - it certainly is a serious state of affairs, and one which we cannot afford to blink. As I have already said, in dealing with some of the most serious problems that face Australia we may have to depend upon the evidence of accountants, and ought to be in a position to know whether it is reliable evidence or not. What can we think when a Commission is flouted as this Commission has been? Not only Mr. Knox, who, apparently, was hurt because of the remarks of the Chairman, flouted the Commission, but other witnesses refused to attend to give evidence at all. We may as well close down the whole of our efforts to investigate if we allow these people to run the business of Royal Commissions according to their own particular liking. Sufficient justification for this measure has already teen given, and I shall not take up time by arguing further in that direction. But this 1 will say - that, unless we are prepared to grasp this question in a manner satisfactory to the people, even if we were to withdraw this measure I feel satisfied that, before many months were over, it would have to be introduced, with even more drastic clauses in it, in order to grapple with the evil with which we are faced. Therefore, I shall support the Bill.
– I ask, under standing order No. 359, that the extract read by Senator de Largie be laid upon the table.
– The extract can be ordered by the Senate to be laid upon the table. Senator Chataway can move to that effect, if he so desires.
Motion (by Senator Chataway) agreed to -
That the document quoted by Senator de Largie in his speech be laid upon the table.
– Will Senator de Largie hand in the document ordered to be laid upon the table?
– Certainly, sir. 1 shall be happy to give it every publicity. In fact, I read it for that purpose.
Document laid upon the table.
– I am not one of those who consider that the existing Act dealing with Royal Commissions is quite sufficient. I believe that the time has arrived when the Act should be amended to enable Royal Commissions to carry out the duties “with which they are intrusted expeditiously and effectively. I realize that in the course of some recent proceedings - to which I do not propose to refer again in the course of my remarks - a certain Royal Commission appointed by the Federal Government has been hampered in the discharge of its duties. I quite agree with what Senator St. Ledger said, that it was quite competent for any individual called before that Commission to take the legal proceedings that have been taken, and which, to some extent, have contributed to the launching of this Bill. But when I read the measure submitted to us, I am impelled to the conclusion that those who have been responsible for the framing of it illconceived the necessities of the situation. From beginning to end, the Bill has been founded upon an entire misconception of the necessities of the case. The basic principle of the Bill seems to be an assumption that every witness summoned to attend and give evidence before a Royal Commission will be reluctant ; that when he does attend, either by compulsion or otherwise, he will be unwilling to give evidence; that when he does give evidence, because compelled under penalty of a fine to do so, his evidence will be unreliable; and, generally speaking, that he will in his attendance upon a Commission be constantly behaving contemptuously and will not appreciate the importance of the procedure. Honorable senators have in their hands a copy of the measure as proposed by. us, and of amending provisions printed in black type; and if they will go through those amending provisions I venture to say they will find that there is not one of them that is not based on one or other of the ideas that I have mentioned. In contrast, I draw attention to the Royal Commissions Act which was passed in Tasmania as far back as 1888. In that Act, the general powers of a Royal Commission are defined. The authority to summon witnesses is set out. The obligation of witnesses to answer questions is provided for. Penalties for non-attendance and for not answering questions are prescribed. Provision is made for the representation of parties interested by counsel or solicitor. General provision is made for enabling a Royal Commission to fulfil its functions expeditiously and effectively. But practically ‘the whole of the provisions printed in black type in the memorandum that has been circulated in connexion with this Bill relate to the reluctance to attend, unwillingness to give evidence, the giving of false evidence, and contempt of the Court. I believe that an Act might be passed which would endow Commissions hereafter appointed with the necessary powers to enable them to effectively investigate all matters remitted to them, and to make a report to the authorities by whom they are appointed. All that this Bill does at the outset is to assert the power of the GovernorGeneral to appoint a Royal Commission. The reason for that is obvious and interesting. It may not be generally known to honorable senators that there is an opinion prevalent even to-day, even in limited legal circles, that there is no prerogative right in the Crown to appoint a Royal Commission to inquire into matters of private concern. I do not say that it is a correct opinion, but that there is an opinion of that kind still lingering is abundantly evident from arguments from time to time adduced before Courts, and also from opinions that have been given. During the last century two or three very important instances occurred in which the question of the power of the Crown to appoint- a Royal Commission was considered. As far back as 1830 a Royal Commission was appointed to report upon the municipal corporations of England, and advice was sought as to whether or not the Crown had the power to appoint a Royal Commission to make inquiry into the matters that were remitted to that Commission.
– 1 draw attention to the state of the Senate. (.Quorum formed]-
– About 1850 a Royal Commission in connexion with the University and Colleges at Oxford was appointed, and in relation to the validity of that Commission’s appointment strong adverse opinions were furnished by some of the leading counsel of the day. Since then I think it has been generally held that there is an inherent power in the Crown to appoint Royal Commissions, and certainly such a power has been exercised, and no question has been raised of later years. This is obviously the reason why at the beginning of this Bill we find the words -
Without in any way prejudicing, limiting, or derogating from the power of the King, ot of the Governor-General, to make or authorize any inquiry, or to issue any Commission, and so on. It has to be remembered that the power of appointing Royal Commissions, and the validity of their appointment and authority, has not been unquestioned. Until comparatively recently these matters have been legally questionable and questioned. At the best all we can say of a Royal Commission is that it is a tri bunal, if we may so call it, of somewhat doubtful legal authority. Its legal authority and status have not always been admitted and recognised. In endowing such a tribunal with powers this fact should always be borne in mind. The other provisions of the Bill extend to’ the matters to which I have referred. They impose upon witnesses who are summoned the duty of attending, and subject them to certain penalties if they do not attend. One of the penalties to which a witness who does not attend in obedience to a summons is subjected, is that of being arrested and brought before the Commission, So far as the general penalties proposed are concerned, I do not think there is much cause for such widespread alarm as has been manifested. It has to be recognised that the penalties proposed are maximum penalties in every instance but one, and that is where a certain offence has been committed a second time. The minimum penalty is then ^500, and the maximum penalty ^1,000. If we bear in mind that these penalties are maximum penalties, and assume, as we are entitled to do, that a certain amount of reasonable discretion will be exercised in their imposition, I do not think there is cause for the widespread alarm that seems to be prevalent. With regard to the powers with which it is proposed to endow a Royal Commission in respect of contempt or alleged contempt, we might very well pause. Senator Symon has dealt with what is contempt of Court. He has quoted, I think, from Oswald’s famous text-book on the subject to illustrate what is meant by it. He has drawn upon that authority for the purpose of making it abundantly clear that contempt of Court has no reference whatever to the person of the Judge or members of the Court. For whatever words may be used orally or in writing of a Judge in his personal capacity he has the same remedy as any private individual. The contempt must be in relation .to his office, and the discharge of the duties of his office. Broadly speaking, contempt may be described as a disobedience of the authority or orders of, or opposition to the authority or orders of a Court, or openly despising the orders, authority, conduct, or justice of a Court, leading as a consequence to general disrespect of the Court, disregard of its injunctions, orders or decrees, or to the prejudicing of the Court in the eyes of the community.
The particular acts complained of must have a distinct reference to the Court, and not to the individual or private capacity of the Judge. It is not all members of tribunals who can realize that distinction. It may be that a gentleman, in all other respects excellent, may have a very touchy disposition. He may be unable, especially in a moment of excitement, to- distinguish clearly between his personal capacity and his capacity as a member of a tribunal. The power that is given to a Justice of the High Court to commit for contempt might be exercised in all good faith by such an individual in a way in which he would have no right whatever to exercise it. I realize that every -tribunal must have power to vindicate its authority, and to enforce obedience to its judgments, orders, or decrees, if it has the competence to make them. It is because of this that the summary powers for dealing with contempt of Court are vested only in the superior Courts of record. Honorable senators will understand that summary powers of dealing with contempt, or alleged contempt, of Court are not enjoyed by any but superior Courts of record. That is to say, other Courts have not inherent powers of summarily dealing with contempt of Court. Inferior Courts of record have the power only to deal summarily, so far as contempt is concerned, with what is known as* “ contempt in the face of the Court.” Superior Courts of record have inherently, and as a part of their very existence, the innate power of summarily punishing what are generally known as contempts. Inferior Courts of record, such as District Courts”, the Local Courts of Tasmania, and the County Courts of Victoria, derive the power to punish for contempt from the Statutes creating them. Such inferior Courts as Courts of Petty Sessions and Magistrates’ Courts have not any power to deal with what is known in law as ordinary contempt of Court. Their power begins and ends in excluding from the Court anybody who creates a disturbance. The summary power of dealing with contempt in the face of the Court is a very arbitrary and unlimited power. It is usually exercised only with the greatest amount of caution. I direct the attention ot honorable senators to a brief reference on this point from Lord Halsbury’s Laws of England, a book in course of publication in many volumes. This reference will be found in Vol. VII., page 281, under the heading “Contempt o’f Court.” Lord Halsbury says -
The superior Courts have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal in cases where indictment or information is not calculated to serve the ends of justice. The power to attach and commit being arbitrary and unlimited has to be exercised with the greatest caution, and as the application of this remedy involves the withdrawal of the offence from the cognizance of a jury, it is only to be resorted to where the administration of justice would be hampered by the delay involved in pursuing, the ordinary criminal process.
There it is laid down that, though the superior Courts have this power inherently, the power is arbitrary, is unlimited, and is exercised without recourse to a jury. Therefore it should be exercised with the greatest caution, and should be resorted to only when the administration of justice would be hampered by delay in pursuing the ordinary criminal process. As evidencing how jealously and carefully even this necessary arbitrary power is guarded, and how the security and liberty of the individual isprotected, I find that the same authority, on page 283, says -
Misconduct in the presence of a Judge at . Chambers or in the precincts of the Court is a contempt (‘e). It is not necessary that the contempt should be in Court, or that it should be a contempt of a Judge sitting in Court ; it must be a contemptuous interference with judicial proceedings in which the Judge is acting as a judicial officer (/).
It seems that a Judge has no power to make an order at Chambers committing a person for contempt done in his presence, the proper course being to bring the matter before the Court (g).
Thus a Judge of a superior Court, exercising judicial functions in Chambers, may be insulted ; but he has no power to commit or to deal with the offender for contempt. He must bring the matter before the Court itself, and it is for the Court to deal with the offender. So, too, with regard to contempt which consists of contemptuous interference with judicial proceedings within the precincts. These things serve to emphasize the fact, that though this arbitrary power is inherent in the superior Courts, it is exercised with thegreatest caution, and is resorted to only where other proceedings for the punishment of the offender would tend to delay justice. All of which goes to show that, necessary as the power may be for the protection of a Court, yet the security and liberty of theindividual are most jealously safeguarded. I would further point out that from punishment for contempt there is no appeal. For criminal contempt the Sovereign himself or herself had power to revoke the sentence passed upon the individual. But from punishment for ordinary contempt in the face of the Court there is no appeal. Having outlined what constitutes contempt, and how punishment for the offence is meted out, I wish to direct attention to the difference which exists between a Royal Commission and a Court. Senator Symon has stressed the fact that a Royal Commission is not a Court. But iri elaborating that statement, he might have pointed out that a Court is a permanent tribunal, whose sole function is the administration of justice, year in and year put. On the other hand, Royal Commissions are not permanent bodies - they are merely of a temporary character. They are not habituated to dealing with matters year in and year out, nor have they certain general jurisdiction. Their jurisdiction is confined to one particular matter. The exercise of its ordinary power by a Court habituated to administering justice in relation to a variety pf matters coming within its jurisdiction is an exerei.se of power within what may be called its order pf course. But a Royal Commission, in determining matters which may arise under this Bill in its treatment of witnesses, will be dealing with what may be called an order of emergency. It has jurisdiction and authority only in relation to a particular matter which is set put in its letters patent. We have to remember, too, that, in connexion with Courts of justice, there is an atmosphere of tranquillity, an atmosphere suggestive of routine, and one which cannot fail to impress anybody who comes within it with the idea that Courts are perfectly conscious, under all circumstances, of the limits of their powers, and of the principles which should govern their discretion. But in .the case pf a Royal Commission, through no fault of its own, but inherently as the result of its creation, there is not that atmosphere df tranquillity. There is not that suggestion to the onlooker that it is as conscious of the limitations pf its powers, or pf its discretion, and of the principles which should regulate that discretion as is a Court. For these reasons, we should hesitate before we vest a body of that kind with the arbitrary and unlimited powers to which I have referred, and which have been commented upon, as I have quoted, by the -greatest lawyer of the day, Lord Halsbury. We should hesitate a long time before we vest a temporary tribunal appointed to investigate a particular matter, with the powers in rela tion to contempt which are enjoyed and exercised, with, such caution by the superior Courts pf record. We have also to recollect that in regard to the particular matters which come before a. Court, its members have no personal, interest whatever. But in the cas.e of a Royal Commission, it frequently happens that the subject-matter which it is appointed tq investigate is one which is agitating the minds of the community, or pf a great; portion of it. Under such circumstances, it is almost useless to expect the members pf a Commission to be unaffected by those influences which operate on the general body pf the community,’ or on a large section of it. Added to these considerations, which should differentiate our treatment of this tribunal from pur treatment p,f a body like a superior Court pf record, we have the fact that the gentlemen who compose a Court are men who have been habituated to the determination pf matters which arise in litigation. In other words, they have had a professional training for the Bench. It has been practically their life-long training, Does the same remark apply to members pf Royal Commissions? It would be absurd to expect them to be men pf training at all, much less to possess the training of the Judges of even bur inferior Courts. All these considerations should cause us to pause before we confer upon Royal Commissions the powers which are enjoyed by only the highest Courts of the land. I have already pointed out that contempt of Court in relation to a single Judge in Chambers is an offence with which he is not privileged to deal. He must report it to the Court. Yet in this Bill it is proposed to endow a Judge of the Supreme Court, or of a County Court, or of a District Court, or of any Court in the Commonwealth, if he happens to be the Chairman of a Royal Commission, with the powers for dealing with contempt which are reposed in the greatest tribunal in Australia. I really think the Attorney-General must have been nodding when this particular clause was drafted for inclusion in the Bill. In saying that, I speak as one who is not opposed to vesting Royal Commissions with ample power to enable them to effectively discharge their functions. I am not prepared to criticise adversely and in a wholesale manner, even the extremely heavy penalties which are imposed under this Bill. But anybody who is familiar with what contempt pf Court means, and with what it has meant in th,e development of the liberties which we enjoy to-day - that is to say, who is aware of the restrictions which have been placed on the exercise of the power to commit for contempt - will hesitate before intrusting to a temporary tribunal, appointed in an emergency to investigate a matter in respect of which the public are agitated, powers such as are proposed under this measure. Senator Symon referred to the fact that contempt may be manifested in various ways. Some authorities point out that the same words used by two different persons may convey a very different meaning. In the case of one, they may be perfectly innocent, whilst in that of the other they may be most offensive. It may be the tone and manner which accompany them which imparts to them the character of contempt. A number of instances are given in the text-books of what has been held to constitute contempt in the face of a Court. It may be that the Chairman of a Commission may hold that the refusal of a witness to answer a question, and the signification of that refusal in a certain way, amounts to contempt. If so, and if he chooses to exercise the powers which will be conferred by this Bill, who is to say him nay? Is there any Court in this country which can issue a writ of prohibition, or any corresponding process, to restrain him from proceeding to enforce a committal order, or any other punishment which he may see fit to impose? There is not. Let us assume that a question is asked, that the Commission itself had no power or authority to ask, and the answer was declined. In what a curious position would we then be placed. The witness would be perfectly entitled at law to refuse to answer the question, and yet the Chairman might deem him guilty of contempt, and might punish him. There could be no appeal and no redress, and the man would be punished for doing an unlawful act. Honorable senators may labour under the delusion that a Royal Commission can inquire into anything, and ask any question.
– Only within the scope of their commission.
– Exactly ; but who is to determine if the witness says that the question is not within the scope of the Commission, and the Chairman tells him that he is guilty of contempt in the face of the Court, and punishes him? You could not go behind his decision; there would be no appeal and no redress.
– If within the matter which the Commission was appointed to inquire into.
– Honorable senators may not realize tha*, untrained men on a Commission do not at all times appreciate what is within the scope of their inquiries.
– And trained men, too.
– Yes, I know that it is a very difficult matter, even for trained men. Every lawyer knows that there is a number of treatises on the law of evidence. Everybody who has been in a Court at any time will know that various questions are asked, and the answers to them are objected to because the evidence is not admissible. Very often evidence is sought to be obtained which cannot be given at all, according to the rules of evidence, which, I may mention, are framed on what one might almost call analogously a mathematical basis, in order that, as far as possible, the witness shall only depose to facts pertinent and within his own knowledge. But there are various matters which are not allowed to be given in evidence - for instance, the contents of written documents. A witness cannot depose to the contents of a written document. It must be produced, and speak for itself. If a document has been destroyed, and it is abundantly proved without doubt that it has been destroyed, what is called secondary evidence of its contents may be given. So, too, there are other matters which are set out - privileged communications, such as a communication between a patient and his doctor, a client and his solicitor, a husband and his wife, a clergyman and anybody whom he is attending in that capacity. Senator de Largie read an extract? dealing with something which had been would by Mr. Yarwood, in Sydney, at an accountants’ dinner. I did not hear every word: which the honorable senator quoted, but it seemed to be an attempt to misrepresent a statement which had been made by Mr.Yarwood that if this Bill were passed many of them would find themselves in Darlinghurst. I took the extract to mean that if the Bill were passed, it would’ purport to compel accountants to disclose before- a Royal Commission what a Court of Justice cannot compel them to disclose. That is the position, and that is what the man was objecting to. It is no wonder that he said that if the Bill -were passed-, and enforced, they would find themselves in gaol. A Court of justice cannot compel the disclosure of a communication made by a husband to his wife, but will this Bill privilege such ai communication? It contains nothing with regard to the application of the ordinary rules of evidence.
– You are somewhat labouring the point now, I think. There is nothing about husband and wife in the Bill.
– No, that is what I am saying. The Bill does not say that Royal Commissions shall be guided in their investigations by the rules of evidence. We know that Select Committees and Royal Commissions, as a matter of practice, do not confine themselves to the rules of evidence. They will “take hearsay evidence, which is inadmissible in a Court of law. They will take other kinds of evidence, some of which is admissible in a Court, and some of which cannot be compulsorily given in a Court. A communication, for instance, made by a husband to his wife is evidence if neither party objects to it being tendered, but if either party makes an objection, no Court in the land can compel the communication to be given. That is the law of evidence. But, apparently, a Royal Commission is not to be bound by the rules of evidence which apply to all the Courts in the land. If they ask a question, relevant or irrelevant to the inquiry, an answer must be given, and, if not given, an offence is established, and there is a penalty. The Royal Commission may ask a question absolutely irrelevant to the subjectmatter of their investigations, and the witness may decline to answer it on that ground, and yet he may bring himself within the four corners of this measure, and be punished.
– Who should decide when a point of that kind arises?
– The Courts of law, undoubtedly. I am glad that my honorable friend asked that question. I shall quote now from the late Mr. Justice Clark’s Australian Constitutional Law. In his chapter on Commissions of Inquiry, he says -
The language of the several Acts of Parliament which, in different States of the Commonwealth, empower Commissioners to summon witnesses and to administer oaths to them, and to compel the production of books and documents, does not warrant any assumption that they purport to invest Commissions of Inquiry with any greater powers to obtain evidence than those possessed bv Courts of Law. But there are a number of matters concerning which particular persons cannot be compelled to give evidence in a Court of Law; and in many cases the persons so protected against a compulsory disclosure of such matters are the only persons who know anything about them ; and therefore a compulsory disclosure of such matters by any process of law is impossible. So, also, with regard to the contents of written documents, it is a fixed rule of law that a person cannot be compelled to disclose the contents of a document which he is not bound to produce ; and there are documents which the owner of them could not be compelled to produce in many cases in which be might be a party to the litigation in which the discovery was sought, and which he could never be compelled to produce in the course of any litigation to which he was not a party. In regard to such matters,, the several Acts of Parliament which, in some of the States of the Commonwealth, confer upon Commissioners compulsory powers to obtain evidence do not invest them with any greater’ power of discovery and investigation than those possessed by Courts of Law in relation- to matters in respect of which such Courts have jurisdiction. If a contrary contention could be supported, there would not be any defined’ limits to- the compulsory powers of discovery conferred* by those Acts upon Commissioners appointed by the Crown -
That is if the contrary contention can be supported, as it is assumed it can- be supported in aid of this Bill - and the result would be that the Crown- would) be authorized to invade that right to- privacy, and to the exclusive possession and use of property which every subject of the Crown has hitherto possessed in regard to many matters, under the common law.
It will be seen, therefore, that Mr. Justice Clark, in his work, lays it down as a principle that the investing of a Royal Commission with power to summon witnesses and to take evidence gives them no greater authority than is enjoyed by a Court of law.
– It should not.
– This Bill’ will bepurposeless to a very great extent if it doesnot. We do not purpose in the measure, as I pointed out before, to confine Royal Commissions to the rules of evidence; but, as a matter of fact, according to Mr. Jus- .tice Clark, they cannot take anything except what a Court of law can compel the disclosure of.
– What is a Commission appointed for in the first instance?
– To investigate certain matters; and Judge Clark’s contention’ is that, if a certain matter cannot be compelled to be disclosed in a Court of law, a Royal Commission cannot compel its disclosure.
– Do not have any Commissions, then.
– That shows how much beating the air this- Bill, is if that view is correct. Continuing-, Mr-. Justice Clark says -
But if the statutory, grant of compulsory powers of discovery and investigation to Cornmissiqns of Inquiry a^ppqj’nted by the Crown has” riqt authorized the frown to’ invade any fight o’f privacy, or any right to the exclusive possession and’ use of prp.perty, which all the subjects qf the Crown, previously possessed under the cqnimcjn law, then the Cro.wn cannot,, by the appointment of a Commission of Inguiry’j cbrn’pel a disclosure in reference to any such matters. “ The’ right’ to’ priyacy under the com: mpn la’w cqvers’such matter’s as the nature of any secret process used by any person in the manufacture of any articles made” and sold by lum-
That is provided for in the Bill ; it is reserved ; but Mr. Justice Clark ppints out that it is one of ‘the matters included in, the cpmpiqn law right of the individual tq privacy - privacy even from the interference of the Crown - or the contents of any manuscript written by the owner of it “for his own use and pleasure or’ profit. The Crown can undoubtedly appoint Commissioners to inquire into such things, and there will not b’e anything’ ‘illegal’ in the preparation of the “Letters Patent appointing ‘them ; aiid the. Commissioners will not- be guilty of any offence if they meet in conference ‘and’ discuss proposals for obtaining * the information which they are directed to obtain. But if they make any alfempt to compel a disclosure of such matters, tfiey ‘ in’ay be resisted, and ‘ if they persist in their attempt, and thereby cause any damage to any person who is justified’ in resisting it, they will be liable fqr the damage so ‘caused by them to any such persons.
In a. foqtnqte he §ays, -
On the general principles pf law regulating the right of privacy in relation to the contents of documents and to. the exclusive possession and use of particular kinds of private property, see the judgment of Knight Bruce, V.C. in the case of Prince Albert v. Strange (2 De. Gex. and Sm. 1652), and th.e judgment of Lord Co’ttennnm in the same case on appeal (1 Mel?, and
Later on in the same wprk, at page 251, Mr. Justice Clark goes on -
The prerogative powers of the Crown have been defined by Locke as “ the discretionary power of acting for the public good when the positive laws are silent.’’ The question whether an inquiry into a particular matJler is for , the public good or not, is not a legal question. But an inquiry into a matter in which public interests were not involved would inevitably, in the absence , of express statutory authority, Ijecome illegal as soon as private rights protected by law were invaded. Nor would the fact that public interests were involved in the inquiry authorize the Commissioners to invade private rights protected by law if th’ey were not empowered by special legislation to do so.
SenatorKEATING.- Not under, this Bill.. * “ ‘
– j” am sure that there is no. clause in the Bill that will effect that purpose.
Hence the limits of the legal powers of Commissioners appointed by the Crown to make any inquiry are found in the existence of whatever private rights and interests are protected by law against’ any’ intrusion on the part of either the Crown or. private person’s. If these are not invaded or infringed otherwise than the law, permits or authorizes no taint of illegality attaches’ to’ the ‘inquiry’. 1 ‘’
My, hqnqrable friend has said that the Qr> yernment prop/os,e to make special provi: sion fp enable Jioyal Commissions £q go b,eypnd the limits assigned to the superior Courts of law- that they are gping to en-, able Rpyal Cpmrnissipns to. jnterfere with the right of privacy. I hesitate tq think that there is any clause of’ that character in the Bill/ ‘ “”’ ’ ’ ’ ’ ”’
– rThe honqraqle senator said that a Royal Commission that had not statutory authority for its appointment would not have the pqwers intended^
SenatorKEATING. - I will read’tliis sentence again - : llfdr would the fact that public interests were involved in “the inquiry authorize the” . Commissioners to ‘invade ‘private’ rights protected by law’ if they were not’ empowered by special legislation to do so. ‘ “
Surely the Vice-President of the Executive Council will not pretend that it would be desirable, when dealing with Commissions generally, to lay down the principle that all Royal Commissions’ should have power) in the course of their investigations, to interfere with the common law right of privacy. I can quite understand that when a Commission was created by a special Act to inquire into a particular matter, the limits of the inquiry would be defined; because then we should have a concrete instance before us, and should knqw how far we might endow the Commission with powers beyond those enjoyed by a Court of law.
– Is not clause 3 tantamount to special legislation ?
– I ‘have dealt jyijth that. The . clause js intended . to remove any doubt whatever as to the power of the Crown to appoint a Royal Commission. ‘
SenatorMcGregor.-And’ wh’e’n wte ap point a Royal Commission, w.e giv.e i.t the powers stated in the rest of the Bill. The honorable senator should not’ quote Mr. JW?Jr-^ ClaVk V>ri a print that hp ‘.does ‘not rja.eii.tiqn.
– Is not this special legislation ?
– No, it is general legislation. That is the trouble. It is because it is general legislation that it invites so much criticism. I venture to say that Senator McGregor misunderstands the Bill altogether. He has just said that these special powers are given. Where are they given ?
– In the proposed new sections from 6a onwards?
– Those provisions deal with the duty of witnesses to continue in attendance ; the arrest of witnesses failing to appear; acts of omissions on different days to constitute separate offences; witnesses need not disclose secret processes; statements made by witnesses not to be admissible in evidence against them ; penalty in case of offence committed after a previous conviction ; power of Commission in relation to documents produced; witnesses to be paid expenses; giving false testimony; and so forth. I have already said that this Bill is based upon the unwarrantable assumption that every witness summoned will be reluctant to attend; that when at last he does attend he will be unwilling to give evidence; that when he does give evidence the evidence will be unreliable; and that, generally speaking, his attitude towards the Commission will be one of contempt. There is nothing in this Bill to provide that a Commission shall be guided by the rules of evidence applicable generally in Courts of law or otherwise. There is nothing to show that the Commission is to have greater powers of investigation and inquiry than a Court of law. The Bill is silent on that subject.
– Does the honorable senator want those powers to be put in?
– No; but I am pointing out that the Bill will not effect the purposes which it is intended to effect. All that the Bill does is this : It gives to Royal Commissions a fancied illusory power which will enable them to do grave injustice and great damage to individuals, whilst there will be no redress for those individuals who may be aggrieved and damaged. Nevertheless the object sought to be accomplished will not be achieved. I ask Senator McGregor again to tell us where the Bill contains that special power which Mr. Justice Clark says that a. Royal Commission should have to enable it to go effectively beyond the rules of evidence which apply in an ordinary Court of law?
– Witnesses are to be compelled to produce books and documents.
– And clause 5 provides that it shall be a defence to a prosecution for failing to produce any documents if the defendant proves that the documents, books, or writings “ were not relevant to the inquiry.”
– That is what we want - what is relevant. We do not want what is not relevant.
– The provisions are contradictory. Originally there were in section 2 of the existing Act the words “ Material to the subject-matter of the inquiry.” Those words have been struck out by clause 2, of this’ Bill. Therefore, the witness is to be compelled to produce books, documents, and papers, whether material or immaterial. He may be prosecuted if he does not do so; but if he is prosecuted he may prove that the documents in question are immaterial. It is precisely because that provision is in the Bill that I have pointed out that it will not do what it is intended to do. It imposes penalties upon persons, and subjects them to punishment for contempt. But the powers which may be exercised by the Chairman of a Royal Commission when it is travelling outside its own jurisdiction, as defined by Mr. Justice Clark, will not effect the objects which the Bill is intended to effect, namely, the efficient and expeditious investigation of matters subject, to the inquiry. The Bill will’ only seemingly endow Royal Commissions with powers which, in many instances, will be illusory. But, notwithstanding that they will be exercised to the great detriment of individuals, those persons will have no remedy or redress. I was dealing just now with Mr. Justice Clark’s comments upon Royal Commissions generally, and was commenting upon the fact that unless they are endowed by special legislation with power to inquire into matters as Courts cannot inquire into them, and to compel the production of documents that: the Courts cannot compel to be produced, they have no greater power than Courts, have. But what I take exception vo in this Bill is not that there is no definite provision to enable Commissions to travel beyond theordinary rules of evidence, but that the Bill empowers a Commission to treat a witness, as in contempt if he chooses to decline toanswer questions which may be irrelevant. The Chairman of the Commission will be left to judge of relevancy or otherwise on- those occasions, and will be enabled to treat a witness as in contempt if he considers the tone of the witness to be offensive, although his words may be perfectly innocent. The Commission might proceed to ask for the production of documents that even a Court of law could not demand, and on the failure to produce them might proceed to exercise its supposed powers as to contempt. Clause 6 of this Bill amends section 6 of the principal Act by omitting the words “ be liable, on summary conviction, to a penalty not exceeding £50,” and inserting in their stead the words “be guilty of an offence.” Let us suppose that a question is put to a witness by a Royal Commission which could not be properly asked in a Court of law ; a question, the answer to which would involve the disclosure of a privileged communication from husband to wife, or between a doctor and his patient-
– Or between the witness and his solicitor.
– Or between the witness and his solicitor; which would be a very highly privileged communication.
– Would this Bill overrule that?
– No ; but clause 6 appears, on the face of it, to do so. We have the power to say that these matters shall not be privileged in the case of inquiries by Royal Commission, but I do not think that any Government would introduce such a power in a Bill of this character, and make such a principle applicable to Royal Commissions generally. If the Bill were framed more on the lines of the Tasmanian Act of 1888, and were general in its application, then, in respect of any Commission appointed for the investigation of a particular matter, we could, with a concrete instance before us, lay down the exact limitation of its jurisdiction with regard to questions, and say how far the Commission might exceed the competence of a Court of law in inquiring into the matter.
– This is 1912 in Australia, and not 1888 in Tasmania.
– Quite so; and the Bill goes to show how far Senator McGregor, and those with whom he is associated, have fallen from grace within the period referred to. So tar as it makes provision for the regulation of Commissions generally, I challenge comparison with the Tasmanian Act to which I have referred. It is perfectly general, and was drafted, I venture to say, by one who was endowed with far greater talents, knowledge, and experience than the Vice-President of the Executive Council and his colleagues have at command for work of this character. In regard to some of the other provisions of the Bill, I refer honorable senators to the proposed new section 6f -
A Royal Commission may inspect any documents, books, or writings produced before it, and may retain them for such reasonable period as it thinks fit, and may make copies of such matter as is relevant to the inquiry, or take extracts from them.
Some one said something just now about reactionaryism. I venture to say that that is one ot the most reactionary clauses introduced in any legislation of recent years. There is hardly a portion of the British Empire in which there has not been a good deal of legislation in regard to evidence during the last ten, or even twenty-five, years. Much of it has had for its object the codification as far as possible of the law of evidence ; that is to say, the embracing of enactments spread over a variety of subjects in one complete comprehensive systematic code, with something in the nature of proper sequence in its provisions. Owing to modern methods of business, the tendency has been as far as possible to dispense with the production of books. Originally the practice was that a book should be produced in evidence to show the entering up of an account or record of a transaction made by a particular clerk or officer in the employ of a business firm in the course of his daily duties. The tendency of later years, as in the case of what is known rs The Bankers Books Evidence Act, has been to enable extracts to be taken from business books, and to have those extracts verified. Extracts relevant to the issue before the Court are made from books, and they are submitted as evidence, whilst the books are left with the bank or business firm, that it might continue to carry on its ordinary business. One can hardly estimate the inconvenience to which some business firms would be put by the removal bodily of their books, even for a day.
– What about agreements between companies? They can be, and have been, produced before Royal Commissions.
– An original agreement is evidence, but in Courts of law it very often happens that both parties to a case agree to accept secondary evidence, in the shape of a copy of an agreement, when it might be inconvenient to produce the original. I am directing attention to the fact that in this Bill, instead of enabling relevant extracts to be taken from business hooks, and the production of the books themselves to be dispensed with, we are asked to go to the other extreme. There is in the proposed new section 6dd a very proper and necessary provision for the protection of witnesses who give evidence before Royal Commissions. It disposes at once of one of the original grounds put forward for the opinion that the Crown has not the power to appoint Royal Commissions. In 1850, when a Royal Commission was appointed to investigate the affairs of the University and Colleges of Oxford, one of the grounds put forward in support of the opinion referred to was that witnesses who came before the Commission would have to give evidence, not necessarily on oath, and might not be protected from actions for defamation, whereas, if their evidence were given in a Court of law, it would be privileged, and no action for defamation could lie in respect of the Statements so made. One important provision to which I direct the attention of the Vice-President of the Executive Council is contained in the proposed new section 6g -
Any witness appearing before a Royal Commission shall be paid a reasonable sum for the expenses of his attendance in accordance with the prescribed scale.
That is perfectly right ; but if this Bill is to become law, ‘ provision should be made that a witness, if he demands it, upon being served with his summons to attend, shall be entitled to the payment of at least what is known as “ conduct money.” Honorable senators will find in the proposed new section 6b, that it is stated -
If any person served with a summons to attend a Royal Commission as a witness fails to attend the Commission in answer to the summons, the President or Chairman may, on proof by statutory declaration of the service of the summons, issue a warrant for his apprehension.
In that proposed new section, there ought to be introduced after the words “ service of the summons,” the words “ and tender of expenses, if demanded.” A witness residing at Cairns, for instance, might be summoned to attend a Royal Commission sitting in Melbourne, and he might not find it convenient to get the necessary funds to enable him to proceed to Melbourne straight away.
– If the witness had not the money to come from Cairns to Melbourne, that “would be quite sufficient to excuse his non-attendance. .
– It would be a reasonable excuse, but that is not the point with which I am dealing. A witness, relying upon that as an excuse, might fail to attend the Commission.
– Is it. not the practice for Royal Commissions to go to where the witnesses are, rather than to summon the witnesses to attend the Commission at a particular place?
– The honorable senator has stated the ordinary practice ; but it is not always followed. We should. I think, adopt the practice of Courts of law. If a witness is served with a summons to attend a Royal Commission, and demands his necessary travelling expenses, they should be tendered to him. In the practice of the ordinary Courts a witness is entitled to receive his travelling expenses to and from the Court when he is served with his subpoena, and if he does not receive them, he is at liberty to disregard the subpoena, and the Court will not punish him for doing so. 1 repeat that I think the words “ and tender of expenses if demanded “ should be inserted after the words “ service of the summons,” in the proposed new section 6b.
– In practice that is always done.
– There is no obligation, under this Bill, to do it.
– Custom gives all the power necessary.
– We can scarcely be said to have established a custom with regard to Royal Commissions in the Commonwealth yet. The proposed new section 6b, provides for the issue of a warwant for the apprehension of a witness who has failed to attend if proof is given of the service of the summons upon him. But I think that before issuing a warrant for the arrest of a witness we should at least provide that when he is served with his summons he should also be tendered his travelling expenses.
– Can the honorable senator imagine a Royal Commission being so unreasonable as to issue a warrant for the arrest of a witness who could not possibly pay his fare in order to attend the Commission ?
– The Commission might be acting in what they considered a bond fide way in the exercise of their powers under this legislation. They might say that this matter was referred to in the passing of the Bill, and might feel bound to carry out the provision of the proposed new section 6b if a witness did not attend upon their summons.. No harm could be done by providing that if a witness’s expenses are asked for when he is served with a summons to attend a Commission he should be tendered them. Under the Bill he would get them subsequently, but I think they should be tendered with the summons. Royal Commissions cannot visit every centre, and some witnesses will no doubt be obliged to travel a considerable distance to attend a Royal Commission. I hope that if the Bill is to become law some amendments will be made in respect to the matters to which. I have directed attention. As I have already said, I am not very much concerned about the severity of the penalties. They are maximum penalties, and we may assume that a reasonable discretion will be exercised by Royal Commissions, and penalties imposed in proportion to the offences committed. So far as the Bill itself is concerned, it is not, I think, the kind of measure we should be invited to pass at this stage of our history. It purports to give powers to Royal Commissions which it does not really give. Those powers will be regarded as being held by members of Royal Commissions, and that will be an illusion. In the exercise of those illusory powers individuals may be .prejudiced and injured. The ends we are all anxious to achieve will not be met by this Bill, but possibly in many instances they will be frustrated, and incidentally in their frustration many individuals in the Commonwealth will suffer personal sacrifice, injury, and damage.
– The members of the legal profession in this Chamber have already dealt with the legal aspects of the Bill which is now under consideration. I propose to confine my observations to one or two points which have occurred to me as being worthy of attention. I have no objection to clothing Royal Commissions with the fullest powers necessary to enable them to extract information from witnesses who appear before them. But it seems to me that the chief danger to be apprehended from th,is Bill lies in the fact that Royal Commissions, are largely appointed for political purposes. There is always a danger of establishing authority, if that authority may possibly be used unfairly. Senator de Largie made it very clear this afternoon that this Bill has been introduced as the result of certain proceedings before the Sugar Commission. If that Commission is to-be quoted as a reason for the introduction of this Bill-
– It is a shocking example of the need which exists for it.
– It is a shocking example of why the Bill should not be passed. I would like to remind honorable senators of a few incidents connected with the procedure of that Commission which, so far, have not been mentioned. We know that Mr. Knox, the manager of the Colonial Sugar Refining Company, desired to make a statement first, and to be examined by the Commissioners afterwards.
– He wanted to make a statement before he had even given his name.
– He was asked, “ Are you the manager of the Colonial Sugar Refining Company ?’ ‘ to which he replied, “ I am.” But I would remind honorable senators that on the 27th March, in the Bundaberg district, a Mr. H. A. Cattermull was examined by the Commission, which, in his case, followed exactly the procedure that it declined to follow in the case of Mr. Knox.
– Did not that witness give his name first?
– He intimated that he desired to make a statement, but, in reply to the Chairman of the Commission, he gave his name, and stated who he was. The Bundaberg Mail, of 28th March, 1912, contains the following report of the proceedings -
Henry A. Cattermull, sugar farmer, of Sunnyside Plantation, Bundaberg, who being sworn, deposed that he appeared on behalf of the Cane Growers’ Union and the sugar growers of Bundaberg. He read a statement.
The statement opened in this way -
As President of the Cane Growers’ Union of Australia, I beg to present the following statement of the position for your perusal.
– That is quite a usual thing.
– If we are to have fairness in these matters, why not treat the big man in the same way as the small man is treated?
– The big man would not give his name.
– That is “ tommy-rot.” I was in Sydney at the time, and I shall presently tell honorable senators what happened the next day, when Mr. Justice Gordon, the Chairman of the
Commission, declared that it was time to be perfectly frank, and characterized a certain statement by Mr. Knox as “ a deliberate lie.” If we are to assent to a Bill of this description, we need to be absolutely certain that it shall apply only to Commissions which have not been hatched in conspiracy against certain individuals.
– Does the honorable senator make that charge against the Sugar Commission ?
– Yes, and I am prepared to prove it.
– It ought to be proved.
– I will prove it now. Some time ago I asked the Government if they had supplied Mr. Cattermull with a copy of the confidential report which was furnished by Dr. Maxwell to the Deakin-Cook Government. I was informed that they had not. Yet they supplied each member of the Commission with a copy of that document. Why was Mr. Cattermull able to read it to the Commission from beginning to end? Obviously because some Commissioner had supplied him with a copy of it.
Sitting suspended from 6.30 to 8 p.m.
– I desire to emphasize that that report has not yet been placed in the hands of any member of this Parliament, with the exception of Ministers. It is worth while asking, therefore, how it came about that a copy of it was in the hands of such a comparatively insignificant person as this witness, who was able to read it before the Sugar Commission? It was read by him on 27th March, and, according to a newspaper report, the witness presented, in the course of his testimony, a copy of a report by Dr. Maxwell, dated 5th or 6th January, 1910. The Chairman remarked that he had understood that that report was confidential. I believe I am correct in saying that the Government supplied members of the Commission with copies of it, and very properly so. But, seeing that this Bill will confer enormous powers upon Royal Commissions, we have a right to know whether in future these bodies will act on behalf of a party, either in politics or in industrial affairs.
– Who was the man who read the report?
– Mr. Cattermull, who contested the Musgrave district in the Labour interest at the last State election in Queensland.
– He might be a clairvoyant.
– Clairvoyants cannot read columns of figures in the way that this witness did. Now, let us see what Commissioner would be likely to supply the witness with a copy of that report. Mr. Justice Gordon expressed surprise that he should be able to read it, because he understood it was confidential. It is reasonable to assume, therefore, that he did not supply it. Another member of the Commission is Mr. Anderson, of Sydney, who shortly after his appointment boasted that he had always been a strong supporter of the Labour party. Another member of the Commission is Mr. R. M. Shannon, who twice contested the Mackay district in the Labour interest, and who, fortunately for the country, was defeated on both occasions. Then we have Mr. Crawford, the president of the Australian Sugar Association, which is a body strongly opposed by Mr. Cattermull, who is president of the Cane-growers Union. It is fair to assume that Mr. Crawford did not supply his industrial opponent with a copy of the report. Still another member of the Commission is Mr. Hinchcliffe, M.L.C., the business manager of the Brisbane Worker, and a strong Labour supporter.
– A decent man.
– I do not know that he requires his friends here to urge that he is a decent man. Perhaps the other members of the Commission are indecent individuals. If so, the Government should not have appointed them. Having mentioned these names, I leave honorable senators to wonder which of the members of the Commission actually supplied a witness who appeared before them with a copy of a confidential report to the Government so that he might produce it in evidence.
– Why did” not the Chairman of the Commission ask him where he obtained the report?
– I do not know that the Chairman of a Commission is obliged to ask a witness where he gets a report.
– It is the usual thing.
– It is not. When this witness produced the report, and said that it was an official one by Dr. Maxwell, that was sufficient. I do not think that it was necessary for the Chairman to ask him where be obtained it.
– The honorable senator has declared that it came from a member of the Commission.
– I have. The Government did not supply it. It has never been issued, except to members of the Commission, and I say that one of the Commissioners must have loaded up this witness with it. I make that charge deliberately. I come now to an extraordinary feature in connexion with the inquiry which has been conducted by that body. It is significant that while the Colonial Sugar Refining Company were refused copies of evidence taken before the Commission, uncorrected proofs of evidence were supplied to Sir George Turner, Mr. Peacock’s solicitor, under instructions from Mr. Justice Gordon, in order that Mr. Peacock might draw up his indictment against the Company - an indictment which was published in a statement in the newspapers, and which the Chairman of the Commission subsequently held in his hands whilst he put questions to the witness.- These facts indicate that, either unintentionally or deliberately, a Commission may be unfair. Mr. Cattermull, representing what is really a Labour union, read a statement to the Commission. Mr. Peacock also presented a statement which the Chairman affirms was not actually received. It is a fact, however, that Mr. Peacock was questioned on the lines of the statement which he madeThese circumstances prove conclusively that a Commission may be unfair. It is possible for it do do what is not . right as between the parties, and it is idle for us to turn round and say that it would not do that. I would also remind honorable senators that very frequently Select. Committees are appointed during a parliamentary session, which, not having completed their labours before the prorogation, are subsequently converted into Royal Commissions so as to enable them to continue their work. These Select Committees have certain powers, but as Royal Commissions they will be vested with infinitely greater powers under this Bill. I wish to direct attention to a rather curious position into which we are drifting. The Senate has already passed the Parliamentary Witnesses Bill, which is now before the other Chamber, where an order for the resumption of its consideration was made on the 20th September of last year, or about twelve months after Parliament re assembled after the last general election.
Clause 1 6 of that Bill provides -
In this Bill, we find this provision -
Nothing in this Act shall make it compulsory for any witness before a Royal Commission to disclose to the Commission any secret process of manufacture.
So that of the two Bills, one enables a witness to claim that his evidence shall be taken in private, and that he shall not be compelled to disclose professional or trade secrets, or the profits, or the financial position of himself or any person ; while under the other, if a Select Committee is converted at the end of a session into a Royal Commission, we have only a provision that a witness need not disclose a secret process. In Committee, I shall try to bring the provision into line with the provision in the other Bill. Otherwise, under one Bill we shall give a witness before a Select Committee reasonable protection, but under the other we shall practically give a witness no protection unless he deals with one item, and that is a secret process of manufacture. Turning to clause 20 of the Parliamentary Witnesses Bill, we find this provision -
Every witness appearing before either House, or before a Committee, to give evidence shall be entitled to be paid such witness fees and travelling expenses as the President, Speaker, or Chairman, as the case requires, thinks fit to allow in accordance with a scale prescribed by the Governor-General.
Under the Royal Commissions Bill, a witness does not come off nearly so well. It will be noticed that a. witness before a Select Committee is permitted to recover a certain amount of fees and travelling expenses, but a witness before a Royal Commission which is endowed with powers of imprisonment and fining to a large amount, is only allowed to lie paid a reasonable sum for the expenses of his attendance, in accordance with the prescribed scale. The two Bills do not fit in at all.
– They do in a sense, because Select Committees do not travel from State to State, or from place to place.
– I was on a Select Committee last session, or the session before, and I had to go up to Sydney, anyhow. The honorable senator knows perfectly well that the Chairman has only to ask for leave for a Select Committee to go and sit in another place, and it is always granted. There is one other point to which I wish to draw attention. Subsection 2 of proposed new section 6 o gives the President or Chairman of a Royal Commission - all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in the face of the Court, except that any punishment inflicted shall not exceed the punishment provided by sub-section (i) of this section.
The Parliamentary Witnesses Bill contains this provision -
Proceedings for offences against this Act shall be instituted only by the Attorney-General or by his direction.
If I am called as a witness before a Select Committee, and misbehave myself, the AttorneyGeneral must prosecute me. If, on the other hand, the Select Committee is converted into a Royal Commission at the end of the session, and Senator St. Ledger, who always behaves himself - but whom I take as an example- -is called as a witness, and misbehaves himself, he may be summarily convicted by the Chairman. Now, if there is one matter more than another against which the Senate has set itself, it is allowing anybody to be a judge in his own case. It will be remembered that, in the Disputed Elections and Qualifications Act of 1907, we made a special provision, arising out of the case between the late Mr. Crosby and Senator Vardon. In spite of the protests of some of our legal friends, including Senator Symon, we put in a provision that the Senate could order a disputed return to be referred to the High Court, because we did not believe it was desirable to sit in judgment upon a matter affecting ourselves. Not only have we often heard the opinion expressed, but we have also seen the statement in the press, that a Judge ought not to sit in judgment on a case of contempt which, has been committed in his own Court. This proceeding is gradually going into desuetude; Judges are abandoning the right to try their own cases. Now, the Government turn round and say, “ We do not believe in a Judge sitting on a case of contempt which has arisen in his own Court; that is in a matter which concerns himself. But where a Judge is sitting on a Royal Commission, we will let him determine that which we will not allow even a Judge to decide.” There lies the great weakness of the Bill. So far as contempt is concerned, we should adopt the principle which was laid down here in the Parliamentary Witnesses Bill. If honorable senators refuse to alter this measure, they have to assume that a witness before a Select Committee must be liable to one set of conditions, and that a witness before a Royal Commission, or a Select Committee turned into a Royal Commission, must be liable to another set.
– There would be no finality about a Royal Commission if the witnesses had power to appeal to the High Court once they were dissatisfied with the decision of the presiding Judge.
– I think that the Minister will find that he has got very close to finality when several witnesses have been charged before a water police magistrate in Sydney, and he has been able to land, at any rate, ons man in a sum of about ,£1,000, including his own costs.
– And against that decision the Colonial Sugar Refining Company are appealing.
– Should not a man have a right to appeal ? - I’ understand that the Labour party are in favour of the establishment of a Criminal Appeal Court. Surely they are also willing to allow an appeal from a civil decision, which might practically ruin a man? With regard to Mr. Justice Gordon, I agree with the remarks made by Senator Vardon. Mr. Justice Gordon was certainly in very bad health when I saw him in Sydney. He was not, I think, entirely under selfcontrol. I listened to him when he delivered a speech. He waved his arms about; he was white with passion, and made remarks which he thought fit the next day to withdraw. That is only evidence that it is possible even for a Judge of a Supreme Court, under certain circumstances, to so lose his self-control that he might very well do a person a grave injustice.
– Is that a fair comment on a Judge who cannot reply to you ?
– The Judge has replied to everybody, and he can reply to me if he likes. I do not think I am doing him an injustice. I could have said worse things.
– The question is : Is it true?
– It is not.
– If it is not true that Mr. Justice Gordon was in ill-health at the time, all I can say is that the newspaper reports were untrue.
– It is not true that he had lost his self-control.
– lt appeared as if, through ill-health, he had lost his selfcontrol. I was there listening to what he said, and I am putting the most charitable construction I can put on the remarks he made, lt was early in the morning. Nothing had occurred, except that the names of certain witnesses had been called, and they had not arrived. Then the Judge read portions of certain documents, which, he said, he would hand to the press, and made the comments which have- been very much remarked about, including the famous comment that a certain statement, which was made on the strength of a statutory declaration, was “a deliberate lie.” I have only instanced these facts to show that honorable senators need to be very careful if they are going to put enormous powers into the hands of Royal Commissions. Nothing at the present time shows that this Bill is necessary. If the law should fail, after it has been tried, by all means bring in a measure as strong, if you like, as this one; but do not pass a measure which will allow the Chairman of a Commission to judge those who he thinks have offended him, and sentence them either to heavy fines or to long terms of imprisonment.
.- I do not propose to occupy many minutes in discussing the measure, because it has been very well threshed out to-day. We have had from our legal friends some very sound speeches, delivered with all the weight of authority and legal experience behind them, and to which, I think, the Government should pay very great heed. Senators Symon, St. Ledger, and Keating have pointed out a number of dangers in connexion with the Bill, and indicated where certain amendments ought to be made. I do not think that the Government should show too stiff a back, but should accept the suggested amendments, believing that they will improve the measure. I take very strong exception to the action of Senator de Largie in tabling a slip from an unknown newspaper, which is practically an attack upon the accountants of Australia.
– Order ! Senator de Largie tabled the slip on a resolution of the Senate. . .
– I take exception to the remarks of the honorable ‘ senator in which an attack was made on the account-‘ ants of Australia. A reference was made to some remarks by one accountant which, probably, were jocular, which occupied only a line or two, and may have been garbled in an unknown newspaper, and on those remarks was founded an attack on the accountants of Australia.
– Where was the attack ?
– The honorable senator quoted a statement about “ cooked “ accounts and “figure juggling” in connexion with the matter, and it is not right that such remarks should go forth from this Chamber. A few remarks in a newspaper might do no great harm, but when these matters are put into Hansard., and have the weight of Parliament behind them, they are capable of working mischief. The chartered accountants of Australia are a highly respectable body of men belonging to a responsible association. They a’re intrusted with the keeping of accounts for the business enterprises of this country, and nothing should be said to weaken their reputation for probity and honesty unlessthe charges against them can be clearly proved. I desire now to call attention tosome very extraordinary conduct on the part of the Chairman of the Royal Commission in question. When he was in Victoria he took exception to the policy being pursued by the Government of the State, in a manner which was altogether beyond the range of his duties. Heshowed great animus against the policy of encouraging the growth of beet for the production of sugar. That was not his business at all. The Commission over which he presided was appointed to inquire into the economic conditions affecting, the growth and manufacture of sugar, and also into the effect of the Colonial Sugar Refining Company upon the interests of the sugar-growers and users, both those who sell and those who consume. But Judge Gordon went out of his way to make an attack upon an industry which the Victorian Government are endeavouring, to stimulate, believing that it will be of great advantage to this country. Our Government has spent a great deal of money on the industry, and in doing sowas quite within its rights. The Judge, 1 say again, went entirely out of his way in making that attack. When evidencewas being taken in Victoria by the
Commission, the Chairman asked Mr. George Graham, Minister of Agriculture -
Are you aware that the evidence given before the Commission has shown that sugar cane culture is the only industry which so far has been successful on a large commercial scale in those regions of Queensland specially calling for settlement, namely, the northern coastal areas? - I don’t know about that.
I f this were so, would not the facts supply abundant reason for the people of the whole of the Commonwealth incurring financial burdens in specially encouraging the growing of sugar in those regions, and thus provide means of defence? - 1 dare say. if Queensland can completely supply the Australian market, would it not perhaps completely stultify the national policy to encourage in Australia the beet sugar industry, which, in the near future, might prove a rival to the production of sugar in those areas specially calling for settlement, and which, according to the evidence given before this Commission,, can only be made available for present occupation and further development by means of sugar production? - I would be very sorry for Queensland if <he is dependent solely on the sugar industry.
Our evidence taken elsewhere shows that along the coast of northern Queensland sugar cane growing has proved the only profitable industry; do you know of any other industry that can supplant it? - The Queensland sugar people surely ought not to object to the Victorian people putting their sugar on the market.
Further on the evidence reads -
That may be true enough, but there still remains the problem of competition between low wage countries and the peopling of the Queensland littoral for defence purposes?- If we have to rely upon the Queensland sugar growers for our defence, then God help Australia. I am looking forward to the time when there will be an Imperial Federation, and then Australia will come in 10 supply Great Britain with sugar.
It is a distant object?- I don’t think so. There is every prospect of beet sugar becoming a fine industry for Victoria. The first venture was not satisfactory, but Victoria was new to the business. When the Maffra Factory was first started there were two large sugar refining companies in Melbourne.
The evidence goes on to show that these questions had all been prepared to be put to the Victorian Minister of Agriculture; and all through the strongest animus was shown by Judge Gordon and by the Commission. It was contended that they were acting in an “ unnational “ way by endeavouring to force this industry, and bv showing that sugar beet could be grown in this part of the country. The endeavour was to demonstrate that it was an entirely unnecessary thing to do. I think I am right in calling attention to this matter, to show that Judge Gordon went completely outside the scope of the duties intrusted to the Commission over which he presides, when he made these remarks concerning the efforts of the Government of Victoria to promote an industry which it is hoped will be of some benefit to the State.
– The statements which the honorable senator has read do not bear out that view of the case.
– They bear it out entirely. I do not want to take up the time of the Senate by reading more of the evidence; but there is much more to the same effect. I do not propose to say much with regard to the measure itself. It appears to me to be intended to cover a great deal more than it purports to do. We have worked very well for ten years under the Act of 1902, which has been found to be satisfactory for the purposes of eighteen Royal Commissions. No exception has been taken to it before; and it is only in the case of the Colonial Sugar Refining Company that it is desired to clothe a Commission with such extraordinary powers. Since the Bill was first introduced, a decision has been given with regard to the Colonial Sugar Refining Company which has proved that the existing law is strong enough to enable Royal Commissions to pursue their inquiries in a reasonable manner. The penalties proposed by this Bill are simply barbarous. They are on a par with a good deal of the legislation which we are getting from the Commonwealth Government at- the present rime. This legislation is to some extent predatory, and largely vindictive. The penalites are certainly vindictive, and perhaps the predatory part will come out more strongly later on. It must be remembered by honorable senators opposite that legislation like this will cut both ways. We shall have other Governments in office later on, and then this harsh legislation, which is not in the interests of the country, may be turned on the friends of its authors. With every desire to make this a perfect Bill, I ask the Government to pay heed to the statements which have been made by our legal friends, and to insert such amendments as will, make it a fair and reasonable measure, whilst at the same time attaining the object desired, which is to enable Royal Commissions to obtain necessary information.
– In the closing hours of last week’s sittings, in the course of a running fire of interjections, I made one which had a personal reference to Judge Gordon, the
Chairman of the Sugar Commission, the existence of which is alleged to be the cause for the introduction of this Bill. Some criticism has followed upon the use of a term which I then employed. It seems lo me, in view of that criticism, that I am rather under an obligation, either to withdraw the statement which I made, or to justify it. I do not intend to withdraw it. I propose to give reasons which induce me to regard it as being not unfair criticism of the gentleman to whom I referred. This afternoon the debate has furnished grounds sufficient for affirming that I was entitled to make the remark, with a qualification which I shall add a little later on. Senator Symon, in speaking to-day, made use of an observation which, I venture to say, may fairly be described as an attempt to apologize for Judge Gordon, although the honorable senator took exception to the terms which I myself employed.
– Senator Symon gave him a very high character.
– He did: but will any one deny that his statement was an apology for Judge Gordon? Senator Symon declared, from personal knowledge of him, that if Judge Gordon had been sitting in a Court, surrounded with all the solemnity of a Court, and maintaining the dignity of a Court, he would not have made use of the observation which he employed when sitting as the Chairman of a Royal Commission. What difference can there be in the temperament of a. man discharging the duties of a Judge and discharging those of the Chairman of a Royal Commission? One has only to recall the words used by Senator Symon to see that it was an apology tendered by a friend of Judge Gordon, who was seeking to show that, under other circumstances, he would not have incurred the criticism to which le had been subjected. I am unable to follow Senator Symon’s reasoning when he says that a gentleman may be qualified to net as a Judge when he may not be qualified to act as the Chairman of a Commission. It seems to me that, whatever qualifications any one may have, if he is qualified to preside over a public body at all, the experience attained as a Judge ought naturally to qualify him doubly for presiding over any Commission appointed anywhere.
– A Judge should be nothing if not impartial.
– Exactly ; and I believe that any Commission is all the better for being presided over by a Judge. I say that, in spite of the fact that Judge Gordon is occupying his present position to-day. I turn to the remarks of Senator Vardon, who spoke of Judge Gordon as being, from his own personal knowledge of him, a courteous gentleman. I was very pleased to hear that remark. 1 have no desire to do any injustice to any man. Judge Gordon is unknown to me personally, but I am pleased to hear one of his personal friends speaking of him in this way. But I venture to say that, not being able to speak from personal intercourse - not being acquainted with Judge Gordon myself - I was entitled to judge him from his acts as they appeared to me. What were those acts ? The first question to which I direct attention is this : That the particular instance to which Senator ,Gardiner and others referred was a statement wherein Judge Gordon described a statement made by a witness as “ a deliberate lie.” That is not a solitary instance in which he offended against public taste and decency in the conduct of this Commision. Had he done so, I might not have referred to it as I did. But if we read down the evidence, we find that there are several cases, not so gross, perhaps, but nevertheless sufficient to justify attention being called to them, and which go to show that there was something about Judge Gordon which ill -equipped him for the duties which he was appointed to discharge. Take another witness - one who was not, as far as [ am aware, connected with the management of the Colonial Sugar Refining Company. Judge Gordon called this man “ either a lunatic or a perjurer.”
– A Judge said that ?
– Yes: Judge Gordon said it of a witness who was being examined. He may have been a simple witness, but he ought not to have been referred to in terms of that kind. The point was this. The man was asked his interpretation of a clause in an agreement under which certain men were working. The clause had reference to whether the men were to be paid for work in wet weather or not. The witness gave his own interpretation that the men were to be paid in wet weather only if they worked, but Judge Gordon, who’ held a different opinion, said, “ If that is your view, you must either be a lunatic or a perjurer.” I couple that with his denunciation of the statement of another witness as “ a deliberate lie.” If Senator Vardon regards those two instances as evidence of Judge Gordon’s gentlemanliness and courtesy, he is welcome to do so.
– What would the honorable senator think of a witness who gave such an answer as that witness did ?
– It may have been the answer of a simple man endeavouring to interpret an agreement ; but if a man, in giving evidence, says, “ That is my interpretation,” it ought to be taken as an honest answer. As a matter of fact, there are many industries in Australia in which men are only paid in wet weather for the work which they actually do, and not for their whole time. Judge Gordon may not have known that, but it is a fact, nevertheless. Nothing that happened, however, would justify any one, whether Chairman of a Commission or Judge on the Bench, in referring to a witness in terms of that kind. It has to . be remembered that the Chairman of a Commission is vested with very strong powers. A Judge can say what he likes with impunity, and the witness before him can only answer back at his peril.
– Is not that something like the case with regard to an attack on Judge Gordon ?
– Some honorable senators seem to think that that is rather a fatal objection when a member of Parliament uses his position, and the privilege which is accorded to him, for the purpose of enabling him to discharge a public duty. I have not brought this matter up out of any personal feeling against Judge Gordon. I do not know him. The reason why he has been brought into this matter is that the statement has been made and repeated by the other side that this Bill has been brought in because of what has happened in connexion with the Commission presided over by Judge Gordon. I want to carry the matter a little further. Senator McColl just now furnished another instance of. the temperamental disability of Judge Gordon which, in my opinion, ill-equips him for this position. What was there in the commission issued to him calling upon him to question the economic right of an act of the Government of this State? If the Government of Victoria choose to indulge in the experiment of making sugar from beet, they have a perfect right to do so, without being subjected to this lecture by Mr. Justice Gordon.
– He wished to point out the economic results.
– In the so-called questions, he was laying down affirmations that it was- not right and proper for the Victorian Government to enter into the beetsugar industry. He was instructed to make an inquiry, and to ascertain the facts in connexion with the sugar industry from other people, and not to give his views upon the action of members of any State Government. I have dealt with the personal utterances of Mr. Justice Gordon ; but I must assume, further, that the Chairman of a Commission exercises a general controlling authority over what it does. I want to say that, not merely has Mr. Justice Gordon been personally insulting, but the Commission has not been fair to the various interests represented before it. I could give a greater number of instances, but I shall give two and stop at that. The following evidence was given during the Police Court proceedings in New South Wales by the Secretary of the Sugar Commission. Mr. Hall-
It is correct that I gave portion of the evidence to Sir George Turner….. I remember stating that I was instructed in March last not to let the sugar company have a copy of the evidence. The only correspondence from Sir George Turner in connexion with the supply of the evidence was an acknowledgment, of it. I produce the letter of acknowledgment. A letter was sent to Sir George Turner before that letter of acknowledgment was received. I produce a copy of the letter I wrote to Sir George Turner. I wrote the letter by direction of the Chairman of the Commission. _ He directed me to write “ I am directed to intimate that this copy is supplied on the understanding that it will not go out of your possession.”
The point is that, Sir George Turner was the representative of “one of the jam companies - of the Jam Combine, it may be - and we find the Secretary of the Sugar Commission, acting under the authority of the Chairman, who should have been impartial if he was anything, giving Sir George Turner, the legal adviser of a jam company, a copy of evidence, on the understanding that it should not be allowed out of his possession, at the same time that he was writing to the Colonial Sugar Refining Company refusing to permit them to have a copy of that evidence. I do not know what honorable senators opposite want when they are so touchy about references to a. Commission that conducted its proceedings in the way I have indicated. There is another thing which came out in the course of the debate. A certain statement was made by Senator Chataway, and I venture to say that I am entitled to refer to the position of affairs disclosed by the hdnorable senator; as something ‘ in–’ the nature of a jpublic- or official scandasli.’ It is’-a “ifact thafam official - document, which should- have - remained ‘Safe with the- caste* dians of public documents, found ‘ its way into the hands of’ a partisan witness. So remarkable was the appearance of this document in -this way, that even Mr. Justice Gordon comments upon the extraordinary fact that this secret’ and -confidential report should, apparently, be available to >a witness1 who gave evidence of a pronounced character on one side in> this controversy.
– Why say “even” Mr.: Justice Gordon?
– Surely I have-made’ my- attitude with regard’’ to Mr: Justice Gordon - perfectly clear ? ‘
SenatorLong. - I tHs- a distinctly, spitefcrl one.
– There is an obligation upon- the Government to let us know, how this confidential report found its: way into the hands of private witnesses. Did they issue these confidential reports to’ the Commissioners? We are . entitled to . know this, because it discloses-..the .:f act:: that -people whose interests were being ‘attacked- were being . assailed by information supplied to the Commission of which they, had no knowledge1; . and, in. order: that certain evidence might be- brought: oirt- in- some ‘-way -or: another; this informatioTwas’ placed in the hinds of - unauthorized jpersons. The repor.ti to: which. I Tefer iwas in.- the.-.hands. of. the Government, and they should explainhow this confidential- report came to be presented to’ . -the. Sugar Commission- in tfcfe- way it wasy by’an’ unauthorized- private1 witness. I ‘have said what I -desired tovsay in- regard td -Mr. Justice- Gordon ; but ‘T wish’-to makt’ a reference to certain statements made by -three honorable senators who have spoken ‘with a personal knowledge of this gentleman: Thev have said that he^probahly acted as he did. under the strain of ill-health.’ If ‘ that be- so, I “am- extremely sorry for- him;- Any one’ - afflicted in’ that way, no matter whether- temporarily or not.L is ‘ entitled to ‘ out sympathy. T’do– not’J know whether if would have’ restrained me, but I ‘was not aware’ of,J the . fact: Still, 1 1 say that any . gentleman -filling so important “a position, in which - the . iriterjests “ of other people are- intrusted to him, -on getting into a condition of. illrhealtti’ such.’ as. to make him lose, control over himself and his_ar> tiohs, . should resigrjihis comniission.
– Bfe> lost. no< control over ‘himselfi.
– If” Mr.-. Justice Gordon was: aeting : as hei normally. idoes;. I have certainly shown sufficient to indicate that he- is not fitted for the position he occupies to-day. Turning from’ that,’ I should like to say a word or two -with regard’ to the Bill’ itself.
– It is nearly time.
– I can quite’ understand the honorable senator’s desire -that I should get away from a-‘subject that is not palatable to him.
– I thought the honor-1 able “ senator was- spea-king ‘on the second reading- ‘of the : BilK ‘
– I ‘ do. not care to oblige my ‘ political opponents. ‘ too . he-. quently,- and; as Senator- Givens is so -very anxious that I should deal -with ‘the Bill, . 1 shall1 refrain from ‘ doing- so for a fewminutes ldnger; in order: to refer to’ another aspect of this matter. I wish to deal With the constitution of the Sugar Commission-, apart from Mr. Justice Gordon: We know that the Commission was mooted long before, the present’ Government.- came into’ office Several questions . ‘were’ submitted here” and elsewhere to try to . elicit” from the Government a declaration of’ their attitude on this matter. As the result of one of ‘.the. inquiries, the Minister of ‘Trade, and Customs stated -
The Government have decided ‘that the Sugar Commission shall’ be- a non-political Commission. We thinlr it isJ,wise to appoint’ an- outside body whose members’ ‘may . inquire into the conditions surrounding the. sugar industry, free.-, from . all political, bias..
That is.. a..soundi declaration,, and.- it. is. . a thousand pities ‘that it was not . given effect: What : is: this Commission - which . was to be -freer; from- political bias-? - If the-iGo-f verrrmerrt had ..appointed . such, a Commis-^ sion,. there i -.would never havev been any trouble, and “there x would : never have- been any hesitalaonrin. giving them all. the powers necessary td ‘.conduct their inquiry;
– We -should. : not hare had ihis Bill:
– Therm wrautd-then haw been- nooneed . If or it; I ‘ have’not ca word- to . say. . againsti: the imembars -of>; the Commission?.: to-‘ whom.) 1 1 proposes now to refdc;
SenaotrLong. - The: . ‘honorable isenator: is annoyadi ibeeause he* cannot do- saj
– That Jswia; remark wfoieh ris ! characteristic . of> Senaton Long. I wish to make it perfectly: cleans that my present, -criticism- is-not directed to any of these gentlemen because they hold- certain political -views, but to the Government -for having “appointed as members , of the Commission men -who -were pledged to a pertain course of action before they -took their seats on the Commission. Mr. Hirtchcliffe is the first gentleman to whom- 1 shall refer. ‘‘He is a member of the Labour party, pledged to the policy of nationalization,, but,’ in addition to that, he had declared ‘that ‘the Colonial Sugar Refining Company is a combine. He further declared that it -was a thousand pities that the referenda . proposals were defeated, because but for that the Commonwealth would have been in a position to de’al with the company. ‘ This is one of the impartial and unbiased members of the . Commission.
– Where will the.honorable senator find them?
– Clearly ‘the Government’ did not Jook for them -when ‘they appointed Mr. Hinchcliffe to the position.
– There are plenty of them on the Opposition benches.
-No one asked for the appointment, of . any one on the iOpposition benches. ‘‘The appointment of any one from this side-would’ have been just as ridiculous and unfair as’ the appointments’ to which I am referring now.
– Where could we; get men free from all political bias?
SenatorMILLEN.- The’ first answei to that is that the . Government are under. an obligation to show that: they tried “to get such men arid failed. But let ‘me say, further, that there is a big . ‘difference between. -the appointment ‘to such a’Commis”jion of an -ordinary business.- man- or ‘man 6f ‘the ‘world, ‘though he-may-, hold certain views, and the appointment of ‘ a - man publicly pledged, to . carry out a ‘-certain definite political policy. ‘ Mr. ‘ Hinch’cliff e is pledged to the’ policy of nationalization, and bis attitude ‘ towards ‘ the ‘Colonial Sugar “Refining Company is plainly indicated -in the following statement, which he nrade’iri his place-in the Legislative Council of Queensland -
I certainly think thnt if it -was for this -reason alone r.it twas a -.misfortune that rrhenreferenda proposals >of -the Commonwealth -Government were not carried as. it would . have enabled the Commonwealth ‘Government to . put . an - end to this ‘hrrRe monopoly lhat is- coercing- the- small men and raatkinjj/ithe. wjoxkers’ suffer : as::they have sufiexftd.
He . wsas, <of >oouTse,-;rafemrjgjto–the . Colonial . Sugar Refining Company. iTbat view may be -perfectly ‘sound ; I am not controverting it now ; ]but is it reasonable to suppose that a gentleman who had made up his mind so clearly as Mr. Hinchcliffe evidently had, and had expressed himself in terms so definite, was in a position to become- –an impartial ‘inquirer into the truth of this matter? The -next “Commisioner to whom I shall -refer is’ Mr. Shannon. He was- a defeated Labour candidate ‘ for a Queensland constituency. He is also a member of the Labour party, and, like Mr. Hinchcliffe, is pledged to ‘the policy of nationalization. ‘ I ask again Whether -any one ‘could expect 1 Mr. Shannon- to enter upon this investigation as an ‘impartial’ ‘inquirer after the simple truth ? I come now to a third Commissioner, -Mr. Anderson, who is a big shareholder of Jones and Company, the so-called Co-operative Jam Company. -We all know that much of the’ trouble in connexion’ with the -sugar industry has arisen from the conflict of ‘the interests of ‘the jam-makers and those of ‘the Colonial : Sugar Refining Company. ‘ It will readily’ be understodd that the jam . companies, as ‘big consumers of sugar, do- not see eye to’ eye with the Colonial Sugar. . Refining Company in this matter.
– Nor. ‘the- general- p’ublic, either.
– That is so. “-Btit there is1 a- conflict of interests -between- the Colonial Sugar’ Refining Company and the Jam Company, and- it is a ‘strange idea of fair play,’ equity and justice.-wtren two-men are engaged irr business -with conflicting ‘interests, to place one in a -position ‘in “-which he - may injure’ or destroy-‘ the’ interests’ of the other. I have dealt -with three- out ‘of five -of -the Commissioners.
-Go -on, ‘ arid deal with the others.
-I’ hive, dealt with Mr. -Justice ‘Gordon- and three -other-‘ members of ‘the ‘Commission. “The other Gammissioner -was Mr.’ Crawford, arid’-‘itas immateriEal what’ he was. “When > you have three out of five of” your way of thinking, you’ have -something- very- near to a’ -packed jury. It -does- not matter what the a‘ two1 were.
SenatorGivens.- Was -Mr. Justice Cordon, pledged-‘ to anything ?
– 1 -said Hhree ‘out -of five. T We may 4eave’‘Mr. ^Justice : Gordoti on’one- side. “‘When* I ‘dealt –with’ him,’ mv “honorable’ friend -tdid “not -seem -so ‘wefl pleased.
– Where does the honorable senator get the three?
– Messrs. Hinchcliffe and Shannon are two members of the Labour party pledged to nationalization. Mr. Anderson is a shareholder in a big jam company, and, in addition to that fact, I am reminded that some time ago he declared his sympathy with the proposals of the Labour party.
– And he has voted against them. I have had to fight him at every Conference.
– It is too late in the evening for the honorable senator to indulge in the jocularity that Mr. Anderson has fought against the Labour party. The political party to which I belong in NewSouth Wales know him as one of their strongest opponents. They think none the less of him on that account, but my objection to the Commissioners to whom I have referred is not because of the views they hold, but because, pledged as they were, to certain political opinions, and, in the case of Mr. Anderson, having interests in a rival business, they were unfitted to discharge the duty of impartial inquirers in this matter.
– If Sir Allan Taylor had been appointed instead of Mr. Anderson, there would not have been the same objection.
– I do not say so. So far as I know, Sir Allan Taylor is as strong a supporter of the Labour party as is Mr. Anderson. I know that those with whom I am associated have always regarded both as political opponents. I wish now to refer to one or two proposals which are contained in this Bill.
– It is just about time that the honorable senator did so.
– I shall choose my own time, subject to you, sir, and to the rules of the Senate. I am always glad of suggestions from my honorable friends opposite, but I fear the Greeks when they bring gifts. The first matter to which I wish to redirect attention - because other honorable senators have already dealt with it - is the staggering proposal in this measure to abolish trial by jury in quite a numher of cases. Let me remind the Senate that in 1904 we passed a Bill, in which we set out that where a man was liable to more than six months’ imprisonment for an offence, it should be an indictable offence, which means that he should be entitled to trial by jury; and that where he was liable to less than six months’ imprisonment, it should not be an indictable offence, but one which might be dealt with by the exercise of summary jurisdiction. Under thisBill, the Government are seeking, not to repeal the Acts Interpretation Act, but to get round its provisions. In no less than five cases there is a proposal to take offences which carry more than six months’ imprisonment out of the category of indictable offences, and to enable the persons charged with them to be summarily dealt with by a Judge, without the benefit of a jury. In two of these cases the penalty provided for the offence is two years’ imprisonment. I want it to go out to the country that the Labour party are proposing a new code, under which a man may be sent to gaol for two years without being tried by his fellows. We all know that at the last general election in New South Wales there was no cry which was used more vehemently by the Labour party than that which was raised against the Wade Administration that it had sought to destroy the system of trial by jury. Why? Because at the instance of that Government legislation had been enacted which provided that a man could be sent to gaol for twelve months for stirring up industrial strife to the detriment of the general community. Consequently, my honorable friends raised the cry that the Liberal Government of New South Wales were attempting to tear down the citadel of trial by jury.
– Did the honorable senator say the “ Liberal “ Government ?
– Yes; and Senator Givens recognised the accuracy of the description at once. I wish it to be known that it was this same Labour party which raised such a cry about the destruction of trial by jury in New South Wales. The one victim of the legislation introduced by Mr. Wade, was Mr. Peter Bowling, who was associated with the Attorney -General of the Commonwealth, ‘ Mr. Hughes, in stirring up the Newcastle coal-miners’ strike.
– They were opposed to each other.
– Mr. Hughes had sense enough to put up his umbrella and to get in out of the rain. We know how that cry was raised, and used for all it was worth. Yet the same party now have no hesitation in imposing a penalty of two years’ imprisonment on men for offences under this Bill, without giving them an opportunity to be tried by a jury. That is one of the most serious blots on the measure. I come now to another question - that of materiality. 1 should have less objection to the proposal as it stands if. we had some reasonable guarantee that the powers conferred by this Bill would be exercised by a trained and competent Chairman. But we have to recollect that Royal Commissions will not always have a legal genius presiding over them. What is the position to-day? Under this Bill a Commission may call upon a witness to answer any questions that it chooses to put to him, and to produce any document which it may deem relevant to its inquiry. I wish to suggest to honorable senators the danger which will arise from such a provision where there is an interested person on a Commission. I have already shown that there is one gentleman on the Sugar Commission who is closely connected with the jam industry.
– That provision is in harmony with the Constitution, which speaks of the “ peace, order, and good government of the Commonwealth.”
– I. do not know what the honorable senator means. I do not say that the Bill is unconstitutional, but that it is unfair. It is quite conceivable that there may be appointed to a Royal Commission some person who has a trade rival. I have already alluded to one species of rivalry, and it is conceivable that a member may be appointed to a Commission whose interests, perhaps unconsciously, render him unfit to determine what is right. We know that bias, conscious or unconscious, does warp our judgments.
– I suppose the honorable senator would disqualify a confectioner from holding a seat on the Sugar Commission ?
– Surely Senator Russell does not contend that it is fair to intrust to any member of the Jam Combine the power of inquiring into the operations of the Colonial Sugar Refining Company ?
– What about other persons who use sugar? Are they not all prejudiced against this combine?
– I am not asking that members of the Confectionery Combine should be placed upon the Sugar Commission.
– I am wondering who would be eligible for appointment to it.
– Is the whole community of Australia embraced within one combine or another? Surely the entire community does not consist of defeated Labour candidates, or of members of the Sugar or Jam Combines?
– The honorable senator would first disqualify one lot and then another.
– My honorable friend forgets that half the community are not pledged members of the Labour party; I wish now to deal with the liability of a witness under this Bill if he declines to answer questions which may be put to him by members of a Royal Commission. Senator Chataway has already directed attention to the difference between the responsibility of a witness before a Royal Commission under this measure, and his liability under the Parliamentary Witnesses Bill. I wish to point out the difference between the powers conferred on a Royal Commission by this Bill and those vested in the Conciliation and Arbitration Court, so far as witnesses are concerned. The Parliamentary Witnesses Bill provides that no evidence given by a witness relating to a professional or trade secret, or to his profits or financial position, shall be disclosed. That provision also finds a place in the Conciliation and Arbitration Act. Surely the same security should be given to witnesses who appear before a Royal Commission. In the case of the Arbitration Court, we have at least the guarantee that its proceedings will be presided over by a qualified Judge. But we have no guarantee that the Chairman of a Royal Commission will possess any legal training at all.
– Yet the Arbitration Court compels women to show how they manage to purchase a 2s. 9d. pair of boots.
– If the words I have mentioned do not restrain the Arbitration Court, has my honorable friend any objection to putting them in this Bill ?
– Apparently, it does not matter when it is a working person who is involved.
– It is not a question of the working person at all.. No witness before the Arbitration Court need sanction the disclosure of any information he may give in regard to trade secrets, or to his profits or his financial position. The same protection should be accorded a witness before a Royal Commission. I am surprised that anybody ..should argue– that greater,, powers should ‘be.given to a Commission in this regard, than are ^conferred upon the High Court.
– One firm -of sugargrowers in Australia, which-‘ has been continually -howling that it has been ruined by . Labour -legislation, has. now definitely stated that it has been making a clear -profit of ‘(£25,000 a year.
SenatorMILLEN.- -I have -not said’ a skigJc word . in reference < to the Colonial Sugar ‘Refining Company, j If it -will comfort -nay -honorable friend, I ‘do not mind saying: that, . in my judgment, the representative of : that company -was absolutely wioag.in tine attitude, which he ..took up towards the -Sugar Commission. . What is more, Lnivill . help. my ^honorable friend to arm tRoyal’ Commissions- -with the ‘powers necessary to -enable ‘them to get all the information to which; they are entitled. Let me -direct . attention “-to another inroad on propulariiliberty - I- refer -.to 5 the. attempt whichus-imade in this. Bill to stopicrifcieism. Ii: would tremind honorable- senators– of ithe teams which’ were: (employed *tin this (Bill : as it-rwasvoriginally introduced. »’It-,’was then proposed ‘that -
*Any person >who wilfullyo-insults -or disturbs a iBAjtal . Commission, . or interrupts the proceedings, of-N a. Royal . Commission,, or uses.. any insulting language towards a Royal Commission -
I pass all- that - orvby ‘writing, or speech, j.-uses^ words, calculated to bring a Royal Commission into disrepute, or is in any manner guilty of any wilful contempt of a Royal- Commission,-, shall1 be guilty -of -an offence.
That ‘provision, -bow-ever, ‘.teas since* been pssdified . ‘Even the Government dared mot stand up to it after attention bad ‘‘been directed to’it. -They -have -made it* read -
Any person ‘who wilfully insults or’ disturbs a1 ‘Royal Commission,, or ‘interrupts’ the proceedings of a Royal Commission, or uses any . insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal’ Commission, or is in any’- manner* -guilty -‘of - any-‘ wilful contempt -of a Royal ..Commission, , . shall tbe . guilty (of i.an offence.
I-.yenturevto.say . that.-what I have uttered in regard to the composition of the Sugar Commission . in . this Chamber,, and what I have –said of itsy personnel, -®n , a -dozen public , platforms - was . tfair ..eritieism. It v/as r . something . which , tthe . citizens of -this. iGOuntry-. had- a . right - to , hear. Yet infthe or(igiaal . form -in - which this rBillr was pueseBted/.-tiiat, criticism,’ would- -have -been prevented. . I . am. Jiot.. certain, that ^it will not -be prevented under-, the -clause- as.it stands.
– There- -is- not much, difference between the amendment, and . the original; provision.
– Under -the. Bill in-its; present -form, -itt.is 1 necessary ; to prove malice.
– I do -not know that it is. The words , employed are “ bv writing, or speech uses words false and defamatory of a Rpyal Commission.”
SenatorGivens.- ‘-Malice -is . one of -the essential- featuies of defamation.
– My . -honorable friend’s legal . knowledge -may ihelp . feim there. But what is the meaning of ithe term “ false “ ? L-.may go on -to> a public platform, and say that the Sugar . Commission as not’, an t impartial ‘.-body. 1 Is –.that statement true, ror- is it not ?
– It is mot.
– Li affirrnt that-1 it -is. T-herefore-.-itheiimatter is -one tof opinion. The - whole ‘purpose . of : that ‘clause -ds’to deny the right of/ a-nyipiblicOTamoriof-amy ordinary citizen - tq . criticise rthe- acts t of -. any Commission appointed under this-. . Bill.. -Who is . it that wishes . to . stop, this criticism ? . Is it . the Commission, -, or the Government which , appointed lit? ..Has . Mr. Justice Gordon -.asked -.to, be shielded irom. public criticism., or., are . the. . Government- which-, appointed . the ..Commission ,.so heartily ashamed -of it that they desire, . to* stop , the mouths of, its -critics ?
Senatorneedham.- fMr. -Justice., Gordon has- aothkig- to, do : with-.that. . This vis. ‘-a Bill to amend the Royat, Commissions Act.
SenatorMILLEN.-When did . -my . honorable, friend vdiscover./.that? I <,am-,.SHre the. Senate , is t-deeply^gFateful- -to him </inline> -for the light which he is throwing . -on ithefimatter, and I have.no doubt- that it will -show its gratitude, when a . convenient opportunity presents itself. » I want, now . to say a word or two in regard . to ; the extraordinary powers which. are sought -.to . be ; given to Royal Commissions in the matter of . enabling them to deal with offences which may be’ -committed before’ them. When ‘Parliament was confronted- with a “difficulty which was created’ by some -criticism of it outside of;, this building, ‘honorable’ ‘senators –will recollect that a Select Committee was appointed to inquire . into ‘the ‘matter. In ithe course of its labours, that Committee, ‘unable -,to/ secure the. personal 1 attendance of Professor, Pitt Gobbett, ^obtained -from; him a . statement on the subject. Honorable senators- rosy say1 at omc’e’that a o?ariiaraerr4 tairy Committeei:issnot’-‘the:,same^as>a Royal Commission; There’isiia>-,diflerefree, -I’ ad- rarity but1 I : do?- ‘say-t that/ . asv regards-^ the matter tonvhicn’the jprofessoi” drew attention, and ‘ that: is the ‘unadvisabil’-ty rof -lany p&blic body, havingrlthe^right’to punish^offences*’ which’i it-regarded” as- havingvbeen committed against’. itself, that principle-is just the- same,’’ whether:’ a ‘ Parliamentary Committee or a Royal Commission
The punrahtnent, ‘for-‘such ‘offihcefji as libel! or other alleged icontempts” should be lefit to the operation iof* the. ordinary law,’ -and. to.. trial by disinterested tribunals,-, possessing adequate powers . of punishment.
Trial’ by an interested’ ‘tribunal must ‘always hH: foreign to! British!! ideas’ of’ f justice:
Apparentlyi-they’are’ not foreign to-thevideas of J1 justice’ of-1 tllc’Labouw ‘party!’ whiohl’is responsible for tliis-iBill’.’
– Who has been respon.1 sible for the power of committal for con* tempt which the Judges? have– had- for- so <many years?
– I “am’ not responsible.. I, do not/ hesitate to -say- that the principle- . laid , down, there - is. -one. . which ought to apply; to. any Court,, fromu the highest- to- the.- lowest. No individual, no; Royal: Commission- or Parliamentary Committeey- ought- to halve- any powerito.be at’ once . thfe-prosecutor or complainant, the Judgeiithe jury,, and* the executioner.
– The fact remains that they are.
– They are, and probably the reason why? an- amending Bill has - not- been: ‘. brought . in: is1 . because the Courts t themselves: have-:shown. a..recog.m tiora . of the fundamental truth - which… I have just. enunciated,, Quite-recently, when a. matter- arose,.- the- High,- Court, showed at once -that the Judges. rwere. not^to-be exempt from criticism.! It is because- the Judges themselves have- refrained- from, exercising the power whidi,. theoretically,, at. any. rate, is theirs, that there has been no popular demand for. the withdrawa-K.of the.ppwer. Let . me continue! the. quotation-r-
The assumption by. . either.. . House, of. the..’Com.T monwealth Parliament of powers and “ privi leges, even equivalent to those possessed - by . the H6use of-ComnKms-^-and-especialVy’ of the -right to constitute itself; the:.’, sole t judge;! of ii what amounts- to . a breach, of privilege,- or, contempt, and.. to withhold its. actions . from - the scrutiny of its courts; would really constitute an assumption by each branch of the legislature of- an authority above that 1 of) ‘the . ordinary la<w<o£sthe land.
I ask ‘honorable senators ‘-whether- any necessity, hasl been -shown- for- plaaing amy- author rity -in-tM-Sf country above- thenOEdinary law anoVthe ordinary Courts ? Oti- the -occasion which . brought < the Sugar Commission temporarily td a standstill, -.nothing happened which: rendered it ‘ necessary to place’ in the> hands; of its Chairman’. the - power “to deal with any one who offended against: the dignity -.of - its- members. I -have’ionly-‘one other ‘.quotation to-.read; and ‘I -again re^ mind honorable senators- that’ thc-professor was’- dealing -with a >P,aiiliamentary Committee,, arad, although, as- -I -said,..th& body- is different, the principle is. the- same -
In the case of a new’ -and comparatively’ ‘inexperienced legislative- body. . eager to- push -its powers to the utmost limit, and perhaps less amenable to the restraining influence of public opinion and -the power- of the- Press-, the -danger of such powers being used oppressively would; I venture- . to think, be:- even greater* .
If we substitute “ a new and inexperienced Commission,” for “a new and inexpert* enced legislative body,” the - rest of- the paragraph, applies equally . to ‘a. Royal, Commission as it does to. a Parliamentary. Committee. . In this measure . there is a great deal more which , necessarily attracts one’s attention,, but I do not propose to . refer to other . matters, now. Whilst., the measure contains certain powers which it. may be necessary . to secure, and which,, I ; think,’ in certain particulars ought . to be granted, it seems -to. me that, in trinir desire to give effect to one of.. their political proposals’, the Government have over- reached them; selves. They are attemptihg;.here, by the two “provisions I have mentioned,’ to- make an ‘attack ‘upon- popular liberty ; that is, by the destruction- of’ trial by- jury in; certain cases; and- by the attempt to stifle -public criticism-. They- have shown’ themselves vindictive by imposing excessive penalties; and having done all that; I venture -to say, indorsing-, the remark- made by Senator Sy’mon,- that this Birr’ will not,- fdr’th’e.’paiticula’r purpose for which it* is. designed; ‘be one whit.’ more effective than the Act which it- is supposed to’ supersede. .
.- - I,Jto..a certain . extent, congratulate the -Senate upqn . being., able’-to deal, with such a debatable ; measure as this appears.. to . be in so short ‘a time, I must . say- that “no honorable senator- has. shown, himself to be to any extent obstructive) and for that’ I must offer my thanks.. . I must congratulate the . Opposition, too. , Tney . have done their work welt; . they . have . repTesentedv the people who subscribed the money to send them here, and who are doing, and paying for, their organizing work throughout the Commonwealth. They have stood here as their valiant champions. We know, and the great majority of the people of Australia know, that the members of the Opposition, in a political sense, are living, acting, and having theirbeing at the will, the discretion, the generosity, and whatever they like to call it, of the great trusts and combines of this Commonwealth.
– The Standing Orders prevent the proper reply being made to an insinuation of that kind.
– That is all right. We are getting on very well.
– You are becoming utterly ridiculous when you make that statement.
– If I were Judge Gordon, I know what I would say to that statement.
-Colonel Sir Albert Gould. - The honorable senator is not serious.
– I am quite serious. I know this from past experience, and there is nothing like experience for teaching one. In this championship my honorable friends have even gone to the extentof using arguments that would reasonably lead any person to come to the conclusion to which I came long ago. We have the Leader of the Opposition pointing out to the Senate that the Labour party in New South Wales took the part of Mr. Peter Bowling against the Government because the latter, according to his statement, were prepared to do away with trial by jury. We know the circumstances that aroused public opinion in connexion with the disturbances in New South Wales at that time; but there is no analogy between what took place in connexion with the great coal strike there and the position that has been created as between the people of all Australia and the Colonial Sugar Refining Company. If Senator Millen says earnestly that the Labour party took the part of Peter Bowling against the Government, does he ask honorable senators on this side to believe that. he is taking the part of the Colonial Sugar Refining Company against the Commonwealth Government in the attitude which he is assuming now ? Does he say, and is he backed up by honorable senators on his side in the statement, that the Commonwealth Government are wrong in putting in the hands of a Royal Commission the power to inflict punishment for resisting, not only the will of the Government, but the will of Parliament? When the Government appoint a Commission, and have the sanction of Parliament for doing so, is the Commission to be flouted ; is its work to be neutralized ; is it to be defeated in every direction, by the gentlemen, or the companies, or the combines that honorable senators on the other side represent?
– What about your friends over there?
– My honorable friends will say “ Yes,” because they cannot help coming to the same conclusion as I did from the argument that was used by Senator Millen less than ten minutes ago. He and his friends on the other side are trying, in the interests of the Colonial Sugar Refining Company, to keep the power from any Royal Commission of compelling witnesses to produce books or documents, to answer questions, or to appear when summoned. Is not that their attitude?
– No; I said that I would give that power.
– That is exactly what they are trying to do. Everybody here recognises it, and I hope that it will be recognised by the whole of the public, who have been for a long time suffering under the unjust load which has been imposed upon them by that monopoly. I hear a laugh from the honorable senator who had an earnest desire to be hanged with Solon.
– No; I said 1 would rather err with Solon than shine with Draco and your Attorney-General.
– The honorable senator is so accustomed to the use of mixed metaphors, that I do not know whether he would desire to be hung in a picture gallery as a picture, or to appear on a scaffold. So far as Draconian legislation is concerned, the party to which he belongs has been famous for it for hundreds of years.
– For thousands of years.
– Yes ; the very same people may be rightly called the descendants of Draco. The honorable senator seems to be so mixed up with the ancient Greek philosophers, including Clysthenes and Demosthenes, that one is. scarcely capable of realizing the position that he ought to occupy at the present time.
– He is still in the Stone Age
-Colonel Sir Albert Gould. - I think that the honorable senator is taking us back to the Stone Age.
– It was only the remarks of the honorable senator and his “ridiculous laugh which led me to make this digression. We know the loud laugh which indicates something. I have forgotten the proverb which, perhaps, other honorable senators may recollect. I do not /pay much attention to it.
– You have taken some time to pay attention to it*
– To my mind, ihe speech of the honorable senator, although he invited the press to be present, was a tissue of either clouded mysteries or misrepresentations. In one instance, referring to the expenses of witnesses, he declared that there was no allowance for -witnesses, except at the discretion of the Chairman of the Commission, when he “knew, or at least ought to have known, that it is the intention of the Bill to fix the allowances by regulation, because the words “as prescribed” are used. Until they -are prescribed, or in instances where they are not prescribed, the discretion is left :to the Chairman of the Commission. The honorable senator either knew, or he did not know it ; and if he knew it, he ought to 3be ashamed of himself.
– To whom is the honorable senator referring?
– I am referring Uo Solon’s mate.
– I never made any :such remark.
– Other honorable senators will also try to get out of statements which they made, but I have no desire to occupy time in replying to all the -criticisms that have been levelled against this Bill. I have already dealt with all the details to which it was necessary to refer. I regret very much that a gentleman in Senator Millen’s position should still persist in what I may call the uncharitable, -undignified, and unjust remarks that he made by way of interjection, and has tonight endeavoured to justify, with respect to the Chairman of this Commission. Like other South Australians, I know Sir John Gordon. I knew him before he became a Judge. I knew him when he was a member of Parliament. I can honestly say that he was never a Labour man, and never showed any shadow of sympathy in that direction while I was associated with him.
– Amongst all his infirmities, we have never charged him with that.
– But this I can say : that Sir John Gordon has always been a gentleman. Moreover, he has always been charitably inclined towards his fellow men. I have no hesitation in saying that when Sir John Gordon, through the treatment he received from some witnesses, showed evidences of irritation, the cause must have been a very strong one indeed.
– If a Judge called me a lunatic or a perjurer, I do not know what would happen.
– Why should Senator St. Ledger try to make prominent his principal characteristics? It is not dignified. The less said about them the better. Sir John Gordon was not appointed to preside over this Commission because he had Labour sympathies, but because he was a just man, and was con- - sidered by this Government, and by every one else who knew him, to be a man who had tried to hold the scales fairly between man and man. How could this Government, in appointing a Royal Commission, expect to’ find men entirely devoid of political principles ? Are we expected to go to Heaven,1 or the other place, to find persons of that! description ? In choosing the Commissioners we took up a legitimate position’.” We recognised that there we’re varying ‘ interests to be inquired into. There was the general public ; there were the small growers and their complaints as to the manner in which they were being defrauded or fleeced ; there were the large growers ; there were also the commercial interests. We often hear in trams and trains the opinion expressed that it would be far better for this country if its business were put in the hands of men of commercial knowledge. Mr. Anderson was appointed to the Commission because he was considered to have commercial knowledge. Mr. Shannon was appointed because he was considered to have the best knowledge of the small growers. Mr. Crawford was appointed because he was considered to understand the interests of the large growers. Sir John Gordon was appointed to look after the interests of the general public. Mr. Hinchcliffe was appointed because he was considered to have a special knowledge of the workers engaged in the Queensland sugar industry. ‘Every member of -the “Commission represents certain interests. I ‘do not know -whether. Mr. . Anderson has, as alleged, anythiijig <,to do with a . jam,. factory. It he has, what difference does, -it make? . He has commercial knowledge, and can be trusted to inquire into the commercial interests tiftected. ‘ But, if we had appointed ‘Sir William McMillan, probably the /Oppo’siL-ion would have taken up”the same ‘ attitude as they ‘do in regard to Mr. Anderson. No one can question that the Government desired ‘that . all the interests should’ be represented.
– I have ‘ questioned that.
– But -who ^is Senator Millen that he should -stand up-: and question /the Government, of-‘the Commonwealth? : It…dsthis , duty;-:in’ th;s -place. -to question everything . - that rthe ..Government do. -No; matter iwhati’.ihe may say, - Ii-am prepared to submit’ithe actions -of the Govenntnent tto.the . judgment iOf: the people -of Australia. -..’Semator-Symon,-. in, thus- lengthy speech, vtook up.ia.ipeculiar attitude, -.and was, supported byvSemator/ Renting. > During . half -of his- time-. he. f endeavoured pjto point,. ©u-t ‘that i rthe vBnlHwas itooi drastic,, aond ‘.iiDi’ the »>Eheil-.half.vhe. argued… -that : rit Wfls-not- s.trorig-enpugh; andind^cated.directions jn . -‘which -it . might -be -amended -,, to make . it more effect-toe. tT,he Government think that -the Bill.-jsrall tfight, : and, . if- we can, rwe- will carry -it into law. Why . -.is a/Bill of this -description necessary? . Honorable -senators -opposite tha ye declared, that it has-‘-been-iintroduGed tsolely-on-‘accountyof ^e;Sttgarr Commission .;-:.but : some of those present r-were- members of , the.T-obaccp Commission,,. and I will ask them whether, they considered- that they . had.. sufficient : pow,ers to make . the -work. -of that Conimission7 as effective . as. ‘t , ought./to hajve fheen.
– They brought -in arreport, . anyhow.
– But had -ithey powers sufficient to ‘.enable/ them i to. bring in , -as -effective a -.-report/ as : they - would thave liked ?
SenatorClemons. - “feet the honorable senator. ask himself’-about the Tariff Commission.
SenatorMcGREGOR.-I can say,-as a memlier of t-hat,”GoHim-ission-‘that-;I’-had’to
Call in question the -‘-bullying tactics’-of Senator -Oemons ‘-in’;IIobart, when ‘he ‘was acting ; as “Chairman.
SenatorClemons.-To -show how -accu rate ‘trhe-honorable- senator’s’ -sta-tement is, I may say that, as -.a- matter vof : fact,;’ I-idicB not jgo- to Hobart * with (the Gonwuission.. That.’is.-a signallyrunfortunate remark.
SenatorMcGREGOR.- rl;nnay; ie cmistaken,as to-t-he..place,Vbut’not-as -to -the ‘individual. 1 know -.that Senator , Gleajossis a gentleman, -and. -is- always ready to- admit any.,.sta,temei>t.-,that- is correct. : I (am. not blaming him.
SenatorClemons. - But -the . honorablesenator !was!-on(-that GarainisSfQn, landr eanhe say that it wanteds more ..powers?
– No ; I , havenever said. such a. thing. ..In my introductory speech 1’ pointed, out. that the scope: of that -inquiry Was ^entirely- different. It was in -the interests - of witnesses to comebefore rthe’ Tariff Commission ‘ and ‘make out -‘the -best -case-they could - for their : ndustisies ; -tout -the Sugar^’Commission, the Tobacco Commission, -and the Harvester Commission- had to -deal ‘with -entirely ‘different circumstances. It is- to the interest of the big combines and- trusts to conceal their affairs, as much -as. they possiuly can.
SenatorPearce.- The Tobacco Trust did Tefuse to answer “questions.
– Those who were members ‘of that Commission” have acknowledged that -it had not -sufficient powers and, as a “matter of . fact, after’the Commission reported,- there ‘was trouble in ‘the Senate with -respect- to’ the -“.dismissal of an-, employe who had given evidence. Members of ‘the Senate, on ‘that occasion, admitted that there had been intimidation,, and -said that, in- consequence of ‘it, they could not get information which they really desired to obtain. –In- –connexion -with’ the Harvester inquiry,, the Chairman- could’-not: iriduoaisomenpersons . toi-give evidence -at-all. These instances , -tha-ve t shown the necessity for (strengthening the existing -legislation. This -Bill: is . not ;:one : whit too drastic : art carrying .; out the . -strengthening : process.. No honest »man <pr>;woman- engaged in any industry need -have -the -least hesitationaboutgiving (evidence, ‘it is-Jwhen peopleareinot honest, have -something to conceal,, or -are doing- something to the detriment-6f the interests- of i’-the-public that they are -not prepared -to come -forward and give ‘evidence. “That- is’-the time’their evidence -is required. -When business people and’ even trusts and combines -treat the public fairly there -is no necessity- fpr an inquiry by aRoyal ‘ Commission. ‘ It is . when - there is a -suspicion ‘that the public are not being treated fairly ‘that the necessity ‘for . an inquiry’ by a Commission -arises. “Such am inquiry -aennot^be effective- . unless . the -Com-, mission is -giiven the- powers provided for in thisiBiLl… Honorable -senators -will-. see : that if. the.- Government ^thought the legislation inr existence- sufficient for the. purpose they would notnsubmit this measure* It is because, from the experience: of -the ‘Sugar Commission and- other -Commissions, it- has been found that.- the powers of 1 Cora* missions are -not as, effective -as. they ought to. be, that this Bill has been- introduced.’ When -Sfcitator Symon. was speaking he -deprecated ‘the- idea of 1 a- Judge of- the Supreme Court or -any one occupying a judicial position stepping down from the Bench to occupy the position of Chairman of . a Royal ‘Commission-. Honorable senators will remember that I interjected at the tide that it was customary to appoint Judges of the Supreme Court to such positions, , and. Senator Symon said em; piratically, . that it-was not., I ‘have, made some inquiries into the matter j and, I . find that since -1904, amongst the Commissions appointed in New South Wales, there were eigh,t which were constituted . of a Judge of the Supreme Court or a District Court, or -of. 1 which such a Judge was Chairman. The first Commission of the kind to, which I shall . refer was, appointed in 1904,, and was known as the Machine Shearers’ Commission.: From, a Labour.. party point. of view an , inquiry * intoi a, business . of) that description, was abput as . political, as anything could- well; be. But Judge Backhouse was Chairman iof : that- Commission. In… 1905 there 1 was- another Commission appointed, in New South Wales , to inquire into the claims of members of certain, contingents, in South Africa, and . it was presided, over,, by-. Judge- Murray. In I9°5(>. also,. the railway administration . of the, State, was inquired , into . by . a Commission,/ the Chairman of which was Judge Rogers; We cannot . often- get Senator S.ymon> to listen- to us, bub I should: like the. honorable- senator rand- those- . who back him* up ; to. take i notice; of’ these facts;. There -was,i further, in-‘irjds, another- Commission, the importance of which will-jbe recognised - by 1 Senator- Millen1 probably more than . -by any- other member of ‘ the Senate; It w-as appointed to. inquire into the- conduet-‘-of the Lands’ Depatment;’
– Senator Millen knpws something ..abcpit j that Commission,
– I wish toishow the -way in which: some , honorable senators make.n stajjementsf.- without^, consideration. The,y;shouldrthink<what the>y_are . saying,,
– Why say “they” when no one but Senator Symon made the statement to which the honorable rsenator is objecting ?
– I may be. exr cused, because. Senator Symon said.. it> and we know - he is ; such a great gun among honorable senators on the other side.
– The only.,, senators who dissented- from him are on thisi side*
-In.igii anCQm; mission was. appointed in New South, Wales to inquire into the- fire brigades^, and -Judge Edmunds was- Chairman of that : Commis; sion. In the same year a Commission, inquired into the- Public Works Department^ and Judge Hamilton- -made that inquiry. In 1.912 there«was a Commission, appointed to inquire into matters in relation to’ the Hansard staff, aiid. Judge -Backhouse, again made that inquiry.
– It J was^ becoming* a habit with him. 1
Senate McGREGOR. - It 1 has- been > a commQnr. practice. -to appoint Judges- of; thfc Supreme Court as. Royal -Commissions . or as- -Chairmen of Roy alt Commissions:. In Victoria there, were during, the same period three ^Commissions -with which? Judges- . were associated. In dotty a- Commission- was appointed- i to 1 inquire” into masters in relation- toj the– Independent Order- of Foresters;- Mr:! Justice Hood, was appointed : ‘asl the Commission.-. There were two other Commissions- in.- 191:1,: which were presided . - over, by i Judge > Eagleson. ; I might refer to- two- or three Commissions appointed- during.’ the– same period ‘ in Queensland. ‘In South Australia’ Judge Homburg » and Commissioner Russell were connected -with Commissions which ‘ sak. in that ‘State, within the ‘ last - two or three year’s. Yet Senator Symon -would- say that it’ -is’ not the pfacficfe to appoint Judges to Royal Commissions. I have proved conclusively that the honorable senator made an. error in his reply to my interjection.. Having already gone into’ the details of the. Bjll in submitting the motion for, -the ..second reading, I. heed not further trespass upon the time, of . the. Sen.ate at. this: stage. ,
Question - That the Bill be now read a second time - put. The Senate divided.
Majority … … 6
Question so resolved in the affirmative.
Bill read a second time.
Clause1 agreed to.
Clause 2 -
Section two of the Principal Act is amended by. omitting therefrom the words “materialto the subject-matter of the inquiry,” and inserting in their stead the words “which he is required by the summons to produce.”
.- This clause should be reconsidered. Under it a Commission may issue a summons to a person to produce any evidence whether it be material to the subjectmatter of the inquiry or not. It is proposed that the words “ material to the subjectmatter of the inquiry “ shall be struck out of section 2 of the existing Act. It must be remembered that a penalty is provided for not “ producing evidence asked for whether it be material to the subject-matter of the inquiry or not. In passing such a clause, we shall be entering upon a very dangerous course. We shall put it into the power of Royal Commissions to demand from witnesses information which has nothing whatever to do with the matters they are appointed in inquire into. The Pearl Shelling Commission, for instance, sitting at Thursday Island, may demand that a person shall attend the Commission, and produce evidence that may not be material to the subject-matter of their inquiry, so long as it is mentioned in the summons Which he is given to attend.If a Royal Commission be appointed to inquire into the tobacco industry, or the sugar industry, the questions, which witnesses should be called upon to answer should be material to the subject-matter of the inquiry. I think, therefore, that the proposed amendment of the principal Act should be negatived.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [9.56].- We ought to be careful to make it perfectly clear that we intend this Bill to apply only to matters which are pertinent to the inquiry which is being conducted by any Royal Commission Under clause 2 it is proposed to render a man liable to punishment if he does not produce documents that he is required by summons to produce. Yet a subsequent provision affirms that it shall be a defence to a prosecution for failing, without reasonable excuse, to produce any documents, books, or writings, if the defendant proves that those documents, books, or writings are not relevant to the inquiry.
-That provision really throws upon the defendant the onus of ‘ proving that they were not relevant to the inquiry.
– It is proposed to ask a man to-, produce something, in the first instance, under a heavy penalty, although it may afterwards transpire that what he has produced is not material to the inquiry. The Bill will place a Commission in an absurd, position, and the Committee will stultify.itself if it agrees to the clause.
Senator SirJOSIAH SYMON (South, Australia) [9.58]. - I also wish to invite the attention of’ the Vice-President of the Executive Council to this point, because I think he must be satisfied that one or others of these provisions ought to be eliminated. The provision contained in clause 2 evidently excited so much dissatisfaction in another place that an attempt was made to remedy it, because I understand that the words “ not relevant to the inquiry “ were inserted at the instance of a member of the Opposition. Instead of conferring in creased power on Royal Commissions, this clause will take away from them a power’ that they ought to possess. By eliminating the words “ material to the subjectmatter of the inquiry,” we shall deprive Royal Commissions of the power of de- - ciding whether the documents which witnesses are required to produce are material ‘ or not. We shall make it obligatory - upon the person’s summoned to produce - documents, and we shall deprive Royal Commissions of the power of inquiring whether or not they are relevant. In clause 2 it is proposed to take away from Commissions the power of determining whether or not documents are material to an inquiry, and of relegating it to the Court which has to try whether or not a witness has committed an offence. Obviously, that is not the intention of the Government. We do not need to transfer the determination of a simple question like that to a Court. The right thing to do is to strike out clause 2 of the Bill, and also sub-clause 2 of clause 5. We shall then intrust to Royal Commissions the discretionary power of determining whether or not the documents mentioned in any summons issued to a witness are relevant to the subject-matter of the inquiry.
– It is proposed to amend. section 6 of the principal Act by inserting after the word “ question “ the words “ relevant to the inquiry.” If that be carried, and if a question be asked by a Royal Commission which is not relevant to its inquiry, the witness need not answer it. That is the clear intention of the Government, as expressed in the proposed amendment. Now, if a witness cannot be punished for declining to answer a question because it is not relevant to the inquiry being conducted by a Royal Commission, surely a Commission ought not to have power to call for documents except those which are relevant to its inquiry. Let us extend the amendment which is proposed in respect of questions to documents.
– Who is to be the judge of what is relevant?
– The Commission itself will be the judge in the first instance.
– 1 wish to point out that the amendment referred to” by Senator St. Ledger is designed to bring section 6 into uniformity with clause 5. But honorable senators will recognise that there is a vast difference between requiring witnesses to produce books, documents, and writings, and requiring them to answer questions.. Under the powers which will be conferred on Royal Commissions by this Bill, witnesses will be compelled to answer questions put to them. To my mind, Royal Commissions ought to be armed with the power to require the production of all books and documents which” they may need.
– They must be relevant to the inquiry.
– Certainly. Bui. if a witness- who is summoned to producethem pleads that they are not relevant to the inquiry, that will be accepted as a defence. For this reason, I hope that the clause will be agreed to in its present form.
: - I do not think that the Vice-President of the Executive Council quite understands the position. I cannot believe that, when hil fully understands the situation, he will allow these two clauses to remain as they are. Clause 2 does not harmonize, and cannot be made to harmonize, with the provision in clause 5.
– We do not want te make it harmonize.
– In that case, 1 understand that the honorable senator will pay no attention to what we suggest ; but 1 venture to say that he ought to want to make the provisions harmonize.
– Oh, no.
– The honorable senator is posing as a new constitutional lawyer, and is quite prepared to make all sorts of wide difference between oral and documentary evidence. I want to know ;f it is the intention of the Government to reserve power to a Royal Commission to call for documentary evidence of any nature or kind wholly irrespective of the fact thai it is relevant or irrelevant to the subjectmatter of the inquiry.
– They will not be the judges as to whether it is relevant or otherwise.
– The point is that they will not be the judges of the relevancy. and the unfortunate man who is compelled by the Bill as it stands to produce all his documents will have to go to a Court to prove that certain documents which he did produce before the Commission were not relevant. The Commission cannot let the witness off, and, however irrelevant the documents may be which they want him to produce, they will force him to go to a Court. Does the Minister want that?
– He does not need to go to a Court. He can produce the documents.
– He must go to the Court.
– He need not.
– If he says that the documents are not relevant, hfmust.
SenatorMcGregor.- He need , not say that.
– After that interjection from- the. Minister,! I. am convinced, that it is perfectly hopeless, to. attempt- to. try to amend-tha.Bill.
– Let me place . before -the Minister a concrete example -of thet working, of this, measure.. We - will assume that, the i witness1 is summoned-, and’, called’, upon.’ to: produce documents uraccordanee with.-clause. 2. . He appears, but, declines -to produce any books, documents,: or writings- in . his custody > or control, on . the-, ground that there is nothing int’them which is relevant to the. subjectmatter of the inquiry. The . Commission cannot, then determine-: the.- point. The matter passes beyond their ken. Let:u&- see into whose jurisdiction, it/ does> go.: The party has- then- become responsible under claiuse- 5 for not- producing documents, books, or writings- in -iris custody or control which he was- reqiiked by the summons to produce, and. he. is; “ guilty of anoffence.”
J- tfirther on in -the Bill’ th& Minister will-find this . provision- 10.- (r.) Pfoceedingsi-in respect-of any- offence agqinst this Act-, (other- than: an indictable offence) may be. instituted by action,- information, or. other appropriate, proceeding,, in the High Court by the Attorney-General in the name of the King, or by information or- other- appropriateproceeding’ bv any, person ‘inuany Court- of sum-‘ mary, jurisdiction^
So:’that..it;.vill.-bejcc«rrpetent:for an information to be laid against tbeiwitnessun a Court of; summary jurisdiction,-, this- . -not being-ran indictable- . -.offence^ . amd..-a 1 Justice: ofsthafr Court, not the members of the Commission;: wi 1 1 . determiua-tha. question- , of . the -relevancy ot -the..contentK of>,thevbooks- . not. pnodMcedv; Risen. i£.an Judge >-of a. Supreme r Court,-; nrrof a Coonty. Court, 1 be the* Chairman ofj the Commission, he will not b&called uponi ro;-.delermme..that- questiorv. . The. Commis-‘ sian, whom. -we -seek : to invest- with: the; highest possible! authority, will be subordinated to- . a cowple.-of. justicesrof the peaces Surely th& Minister does not want the Billto go out of thei Chamber: with, a, provision! which will» allow susrnan anomaly, as thati to v arise;’ If he- will n take a- concrete example - of -that kind, he will see thafcthati will be the effect of retaining clause-2 if hei wishes it to be -retained,’ and . the sesoad-part of clause 5, and inserting the amendment) whid. has been circulated.
SenatorSir JOSIAH SYMON (South Australia)[10. 1 5].-There. is.- no. malice, aforethought in the suggestions made from-. this. side..-. There is no possible design, against. the -clause, because it. is practically) a repetition of the provision in.the. Act which is being slaughtered -.and - made ineffective.-. My . -honorable friend says that.a.Commis-f sion is.. a competent. and proper body to.de-, cide whether, an oral, question, is relevant or not.. That. is. what- he proposes . by . his, amendment, and that, is, . I think, a very, proper- one to make.. The Act does, not con-, tain -that provision. It. simply says. that. if. the witness does. not. answer: a., ques-. tion- he. shall . be : guilty of an offence., The object’ of the. amendment., is to giva the. ^Commission, jurisdiction- to.determiner’.whecner a . question is relevant or.noty and- say that the.- witness must . answer it; but 1 by. clause t2 my. honorable, friend takesaway from-, the- Commission . ‘the. -power . of. determining whether-, documents . are relevant or , not.
– He. does not do. any thing-, of. the kind.
– Has my honorable friend read it ?
SenatorMcGREGOR (SouthAustralia - VicePresident ofthe Executive Council.) [10.17]. - If honorable, senators will look aticlause a,- and<talce. it ins conjunction with-, clause s^.they will see. that it gives^-a Commission, power, to issue, a summons, to -.a . person.. for. the. . production-, of . bosks and-.docu*. ments.
– Not; relevant– to thei inquiry;
– No; If the’ witness ‘appears with - the -necessary ‘books and documents/ that is”an> right-; but if- he appears without ‘trremy then he? has- to’ prove that they are not relevanfr’to’ the1 inquiry.
– He cannot do1 ‘that’. before’ the -Commission, becauseyou have deprived them of the power. .
– It will be in the province’ of the- Commission to . say -“whether he-‘can-‘or cannot.’
SenatorMcGREGOR.- Then . they. ough]t. to have that- power.
Senator Sir JOSIAH SYMON(South Australia) [10.18]. - The.; Minister will- seethat section 2 of., the^ Act contains fhet words, “material, to. the subject-matter ofi the ! inquiry..” Under the -Act, a Com-, mission, cannot require - a witness- to pro-, duce -any [document which , is . not material’ to the.- inquiry. If Jie, comes foirward with; a document- which : he- considers . material to( the inquiry, the Commission are:. entitled tot say whether it is or’siot. They would determine the question/, and probably ithe witness would submit -to their interpretation’ of the relevancy bf ‘the . ‘document ; but clause-2 strikes that part out of the section. “ It. says that whether the. books are material to . theinquiry or not - that ‘is ‘the same as relevant - is not to be. considered. The man hastqproduce whatever’ books are enumerated in the summons whether they have, anything to do with the- inquiry or not ; and if . he does not do-‘so, he. becomes guilty o£ an offence. If he is prosecuted, - he- xan then’ raise” a defence that the documents werevnot ‘relevant to the. inquiry.
– ^Thatds r.the iposition.
– The witness ought to be able to raise that -issue before the . Commission, t but he. can-not. The Bill- duplicates the . proceedings.
– That is ‘-very funny.
SenatorSirJOSIAHSYMON.-It’is funny. ‘My honorable ‘friend seems ‘to think that he is by this’Bill enarjting a sort -.of comic opera, buf’this is. a serious piece of legislation. My honorable’ friend makes ‘it perfectly plain by _giving notice of -an amendment which’-‘is necessary to give’the Commission the -power of determining whether anvoral questiorti-is relevant’ or-. not. That is-, a desiTablevameisutoent.vand ‘every one ought to support it, ‘because it ‘leaves to . the . Commission, the . responsibility -of: deciding the >p.oint. . But by, a str.aage contradiction,! -which my. honorable. friend-.says, he is, legislating . for- r-he ‘.does not want harmony, but conflict - he says the . Csmmission shall . have power . to determine–. whether-. an oral question is relevant,’ but not power . to determine whether, documents are relevant.
SenatorPearce. - Honorable senators on the other. vside have been- claiming all day that these matters should go before a judicial, tribunal.
SenatorSirJOSIAHSYMON.-No. jNiobody..has! ever. saidrfthatithe . Commission who are i.toi. take: ithe ; «videoce . shouldr not, in . the first.-.instance, . say whether, . in ^their opinion/the . documents. are » relevant or. not. If they hold that the documents are/jnot tetevant’ lor.-rmaterial : to ..the ‘..-inquiry, “-why should the witness ha ye~to: produce, them/ or toigo.ito justices of* . the -peace1 to decide a question which 1 a , J.uelge . of-the sSupreme Court, if i he is-..the Chairman, of , the- Commission,, is. «ot allow.ed..to,.decide ? I. . hap pen, to:.know. rhowi, -these ithi-ngs-.are. doneiin Court. . A ; notice “to jipnoduce r is . (given. W’hen:.the person. to AW-hem.,it is-;. gi veneris cal l«d: upon. to . produce a dJcument. his advocate or solicitor . gets up, and -savs. “,I decline to produce it,” because. Jt isi.not relevant. Who is-. to . decide . whether, . it.-is relevant. -or-not? The Judge who . is . tr.yiajg.theiCase ;. and, -from, his decision, there as an appeal. ‘ Let ithe. Commission decide-jin’ the first instance -whether -documents, are relavant’or . not, otherwise they will be made nonentities. , Jf . the wrtness.says that-. they are not-releva.nt,.-^nd-.will not produce. them, he takes . his chance. -The Commission. can say, “Very well, you-. have. committed -an offence; . you , nuist . go r.before …a . Court or -a . magistrate,” ‘.and . the Court or [.the magistrate- will determine. whether- the Commission vwere . right . -or not. . That ^s. mot what - will happen . in the case: of oral questions. . Why should it be.soin the case of documents? I am,not.-going-:torattempt to’ force improvements-‘on the Bill, ‘but Ldo not thiak that my honorable friend will see that, . as he is amending the provision with regard to oral testimony, he ought to do the same thing- with -regard ‘ to ‘documentary testimony.
– I want ‘ to point out ‘that ‘the amendment referred -to ‘is not ran amendment in ‘fact, but only an ameridment in . verbiage. As regards the words “ material to Ithe subject-matter “ in. section 2. of’ the Act, in ‘the past it’ has been considered that, . ‘there was a ‘difficulty with respect -Jo . a Commission dealing with ‘ a question . of that ‘description. As’Phave said, under clause . 5, witnesses are expected to appear with -books and documents. Under clause. 10, if tbe’ Chairman reports to the Attorney’-‘General that the books and documents required have not been produced, the’ Attorney-‘General-can take action and bring ‘the offending parties’ . before”‘the H^igh Court. ‘.”That is the course that would be invariably adopted. There is’ also a provision that any . -person offending -may be brought before a “Court of summary jurisdiction ; ‘;foiut’ thei -action; that -.-would’: be taken-by the ‘Government in a- case of ‘‘this description would be that report would be made to the Attorney-General, who rwould institute proceedings.
– The Vice-President of the
Executive Council is simply stumbling from one misconception to another and a deeper one. At this stage of the Bill, the trouble is not as to persons appearing without documents, but as to what documents are to be produced. Naturally, the documents must be either relevant or irrelevant. Neither this Parliament nor the Commission wants irrelevant documents to be produced. Therefore, if we insert the word “ relevant “ as it has been inserted in the clause with regard to questions, we shall be perfectly consistent, not only with elementary common sense, but with the wish of Parliament. Does the Government desire that a pile of irrelevant documents should be brought up? Certainly not. They only want relevant documents to be produced. Nobody wants to be troubled with irrelevant ones. The tribunal should have the power of deciding as between relevancy and irrelevancy. What harm can there be in . inserting the word “ relevant “?
– An ordinary notice to produce documents always uses the term “ all books and documents relevant to the subject-matter.”
– Every one is familiar with that procedure. Even in a Court of Petty Sessions, when you call upon a man to produce books and documents, you require him to produce only those which are relevant to the inquiry. Suppose that a document which the Chairman of a Royal Commission inadvertently put down in the list, happened to be entirely irrelevant. Suppose that the witness did not produce the document. The Commission construing this clause would have to say, “ There is a difference as between question and documents. Parliament gave us no discretion with regard to documents, and the matter of relevancy cannot be considered.” That would be absurd. Why, in the name of common sense, can we not say in the Bill that only documents relevant to the inquiry need be produced? As it is now, the clause is not only unjust, but it is grossly stupid.
Question - That the clause stand as printed - put. The Committee divided.
Majority …… 5
Question so resolved in the affirmative.
Clause agreed to.
Clause 3 (Power to issue Royal Commission).
– During my second-reading speech, I asked the reason for the insertion in this clause of the words “ by Letters Patent in the name of the -King.” We have not had this phrase used before. It is a legal and literary curiosity.
– Does the honorable senator object to the name of the King being used?
– That is not the question. The Government are asking, throughout this Bill, for extended powers, and they have asked for some powers which I do not understand.
– Surely the honorable senator knows that Letters Patent are always issued in the name of the King?
– I am putting this question to the Government.
– And I am giving an answer.
– The honorable senator is frequently doing this kind of thing; and I do not want to have it from him.
– The honorable senator will have to take what he can get.
– The honorable senator is a standing illustration of the accuracy of Dr. Watt’s explanation of the reason why “ dogs delight to bark and bite.”
– The honorable senator is not a dog, he is a cur.
– The honorable senator has been looking for trouble, and now he has got his answer. May I ask again, are these extended powers being given in this case for the particular purpose? What do the words to which I have called attention mean? The framers of the Bill no doubt intended something by them ; and I ought to be able to ask a simple question without being subjected to a kind of heckling which I have now dealt with for the first and last time.
– It is extraordinary that a legal gentleman should have to ask for information of this kind, i should have thought that even an ordinary layman with intelligence would know that the King has power at any time to create a Royal Commission by the issue of Letters Patent. Every Commission that I have heard of has been appointed in that way. Why Senator St. Ledger should think that extended powers are given because the words to which he has referred are used in this clause is beyond comprehension. I happen to be a member of a Royal Commission at the present time which was called into being by the issue of Letters Patent.
– It is becoming a fashionable occupation.
– I never had any great desire to be a member of a Royal Commission, or to enjoy any privilege under Letters Patent. I mention the fact merely to inform Senator St. Ledger, in his benighted condition of ignorance, - that nothing new is proposed. The astonishing thing to me is that a layman like myself should be obliged to tell Senator St. Ledger, who is a limb of the law, what is the universal practice in this matter.
Senator Sir JOSIAH SYMON (South Australia) [10.42]. - We all sit at the feet of our Gamaliel, Senator Givens, when he -deigns to instruct us upon matters of constitutional law and procedure.
– The honorable senator ls not infallible himself.
– No: the only one who is infallible is Gamaliel Givens. I did not get up to say that I was infallible, but to point out to Senator Givens that he has overlooked the point raised by Senator St. Ledger. We all recognise the power of the King to grant Letters Patent. Nobody disputes that.
– That is what Senator St. Ledger disputes.
– If the honorable senator had read the clause, he would see that that is not what Senator St. Ledger was directing attention to, but the latter part of the clause, which Senator 43ivens has overlooked, and which does very largely increase the objects for which Royal Commissions may be appointed by Letters Patent. The first part of the clause is merely a recognition of what Senator Givens has told us, and, after all, that is very elementary knowledge even for a layman. But until this clause was inserted in a Bill, I do not think there ever was a power proposed to issue a Commission to make an inquiry upon matters specified in the Letters Patent, “ and which relates to, or is connected with, the peace, order, and good government of the Commonwealth or any public purpose or any power of the Commonwealth.” That is the departure from practice to which attention has been directed.
– Is it not wide enough for the honorable senator?
– It is because it is so very wide that, personally, and with great humility, I do not think it is out of the way for Senator St. Ledger to make an inquiry from the Government on the subject.
– If those words were never in the Bill, would not the King still have the power?
– If that be the opinion of the honorable senator on a point of constitutional law, we all bow to it, of course.
– Honorable senators have to do so, because it is correct.
– Of course, we have to do so. Senator St. Ledger ventured to ask a question of the Vice-President of the Executive Council, but Senator Givens did not think that the Vice-President of the Executive Council was competent to answer the question, and so he took his place. I am merely pointing out that this Bill goes a long way further, in respect to the functions of a Royal Commission appointed by Letters Patent than has been known in any legislation before. Under the clause a Royal Commission might be appointed to make an inquiry as to any public purpose and as to any power of the Commonwealth. If the Government desired to have an inquiry into the prospects of the passing of the referenda proposals-, when they are again submitted to the people, they might, under this clause, appoint a Royal Commission to make that inquiry.
– It is rather hard when such learned gentlemen as Senators Symon and
Givens get- up “arid’ block -me fromr. any opportunity -to -explain a constitutional’ ‘rrj(atter. This clause only does -away with– any doubt which might exist with respect to the- powers of the King or ; the’ Commonwealth Parliament- to -issue a’ Royal ‘ Commission.
– It is* more extended.
SenatorMcGREGOR. - It. is. . more .extended, and . necessarily . so. . When”, we are taking . statutory authority , to . issue Royal Commissions, it is wise . to extend . the powers of Commissions. ; I cannot see.. that this clause will in . any . way limit -the power of a Royal Commission, . and if it . will extend.. those, powers,. I hope -it. will -be found to- be of advantage to . the.jpepple. Some doubt has rbeen expressed by . honorable senators, and other . learned . constitutional authorities . not. in the. -Federal . Parliament, as,to the-power of rthe’Kin.g to issue Letters Batent to a Royal.. . Commission. This Bill will do away with that doubt by-maKing. a statutory . matter what has. -heretofore been a;p.rer.ogative. of,, the- . Crown.
– I am, to some extent, satisfied with the! explanation . -.given - by . -.Senator McGregor. There: m^ht- bei-power. required by the Commonwealth which could be ^better exercised by rthe issue of . Letters Patent from the- King. When, Lusaw -that , by- this clause, a . Royal Commission’, might- be . appointed . -to inquire ..and ‘-report upon , ^a matter relating to the. peace, iorder, > and the -good government -of the Commonwealth or any public: purpose, or. any powerc-of the Common wealth, -/it occurred to ‘-me 1 ‘that- a difficu’ty -might arise if- further powers than arc-given to the Paisliament or-‘the Governrrrent were given by . Letters Patent : to a Roynl Commission. . If the reference is- to section 51 –of the. Constitution, and -the thirty yiiae -paragraphs of ‘that, section, /it does not matter whether there . 1 are. . Letters Patent . from the. King or i-notp but ; it’ may be a different: matter if-:a’<RoyaI Gommission. is ‘given any authority to inquire ‘into any power of’ the ‘Commonwealth. ‘'’This is not the first time ‘that’ this’ matter ‘has been< spoken or –written about, but -when ‘if is being dealt with in- a -concrete- ‘form -.in a Bill before Parliament, it is <not unreasonable that there “should” be -some ‘statement from- the ‘Government- on the -subject. I-am-glad that’-Senator’ McGregor- has- said so much, and that ‘Senator Symon -has admitted ‘that ‘-there- was -no reason –“why- 1 shou’ld’ be “submitted to’ hefekling’ if on drawing > ‘attention lto -‘the’ matter.
. -Wfcen-‘-speaking. on-‘the jsecond ‘ reading, of Hie ^Bill ‘ I drew attention to the fact that throughout the’’ -better -part of : last century “-“there ‘ was a “very strong . current of legal opinion’ from -very- high -authority, riot ‘-pronounced -merely in contentious matters, ‘feat- in the form- -of * opinions given to> high - -authorities, -su’clv as- the Uni versity of “Oxford ‘and1 ‘the municipal corporations of’-‘Great-‘Britain, that “there was -no residual power in the Grown to - appoint ‘ Royal Commissions -to ‘“investigate matters’ of private-concern. ‘ That opinion seems to have- given- way ‘during! “the last- half^century -to a ‘pTactiee–whieh has -been followed without -question. . ‘’ Still, –such -an opinion, was- expressed, ‘arid: ‘reasons -were advanced for -it -which, in the opinion’ of some, -have nor>been coniplefcely mfet. This- clause’ provides that -
Without in . any -way prejudicing, ‘ lrmiting,.jor derogating -from the -power- of ‘the King, or of the Governor-General, . to ‘make-on a-uthorize-mny inquiry, 01 -to issue any commission to…make any inquiry, it is hereby enacfed and declared’ that the Governor-General may by LettersPatent in –the’ name t>f Ithe’-TKing ‘-issue -such 1 commissions.
These- ‘words -aclearly. imply - that : both ‘ithe King -Ji-nd the-‘Governor-General have ; at present -powers ‘to make inquiries’ by Royal Commissions. ‘B.ut:we ha<ve already- passed this provision -
Whenever the ^Governor-General -.by LettersPatent under’-Tthe-rgreat seal.- of the Common - wealth issues., a. ‘.commission- to any . persons to make any inquiry, the” President or Chairman of the’ Commission, or the sole’ ‘Commissioner, -.as the - case oray-.be, : may”:by . writing iunderv his band -summon -..any –person- to^attend . the Gommission at a time . and. place . named, in the.. summons, and then and there to give evidence,, and to- produce any- books,- ‘documents, orwritings in his custody -
I”presume”that the ‘words ‘“the GovernorGeneral” -in that » provision- are -used’ in the same sense 1 as “in -‘the -clause under consideration, and ‘that there is> an -alternative power ‘which –the ‘‘Governor-General has’iin his : <wn name. * It -is proposed in the clause under consideration that the i.GovernoriGeneralBhall’have power-to appoint a ‘“‘Royal ‘Commission -in -‘.the - name -of the King. Are we to understand ‘ that it is only- when - a’ ‘Gommissiqji. is appointed by the ‘Governor-General -in !:his -own name and ‘under the seal of ithe Commonwealththat i–it . -will ihave the . >powers set ‘.out to -iisummon witnesses, iand order =jthe production of docwieBts’ ? Are <we’»tr> assume that if he -exercises- his power, using the. name of; the.-King. in Letters -Patent,; ‘ the:- Chairman of a -Commission so appointed will. -not have like, powers: to.those employed- . by a Commission . brought “into existence by the Governor-General’ acting in his own name and under the seal of the Commonwealth? Honorable, senators, will see that there is -a distinction between the two provisions, ‘ and . some’, consideration, should be given to. the. possible effect of. that -distinction.
SenatorCLEMONS (Tasmania) [10.54]. - Before, the clause is-‘ passed, I ‘should -like . seriously to- direct the attention- of the Vice-President of the Executive Council’ to a practice that ‘ has. - obtained in this Parliament’ for a long ‘time -of converting Select- Committees-‘ into Royal - Commissions. The: honorable- senator knows . that thart has- frequently been- done- -when the work” of. a. Select. Committee has not beenconcluded.’ during = a session, and : prior to Parliament: going into-, recess. I ‘point -out the;:daTtger”-and mistake,, from/my . point’ of view, that will arise- if that’ practice is continued. I ask the -honorable senator whether, he will consider - the desirability of limiting:. -.words;- as ta the: personality- of a Royal. Commission. A Select -Committee is;. asked for’ by ‘-some- member of ‘ either House of -the; Parliament: to deal with «jme- particular subject, .. and . without talking: party - politics: -at all,.’ we know-: exactly what happens. 1 A«^ninuHiber:of rflem: bers ;.are chosen?, f rom 1 one side, . - and: a icertain number from the -other. I say, with-‘ out meaning : ar»y, . offence, rthafcit is the usual practice for- aurJEmber asking, for the appointment of a Select Committee to submit the.-naraes of a : majorityoLthejnembers’ of the proposed Committee froir^his- ownsidei That is the way in whichj-onr Sereet.-Comr. mitteos are constituted-‘ If: this-: clause . be retained in its present:forrr^ what will happen . whert an attempt is..nnrde to. convert <a. Select Committee.- into.- a., Royal Commis-: sion ? Will, any honoiable senator sayi thati tii&rpersamei of.la. Select. Conrmittee’.onght to. be - adhered -.to -.in. the- formation: of i a Royal Commission? . Certainly,, that, is- not the method of - selection,. . which isi contemn -plated under this^Bil).. : Of. course,, I. may be told that the constitution of a Select Committee, when-if -‘is’ converted into a Rova I - Comroissioiv may-bevahered, or modiBed either by eliminating: some: of- its.members or by adding to them. . But. ‘.surely every honorable, senator must.! see that pie., adoption, of. such-.’ a course.’, will be’ provocative . - of- disappointment, and trouble;. Who will’1 accept’ responsibility for saying to the members of- a Select Committee,- ‘‘You were.’- appointed ‘ as a Select’ Committee, -but now ‘that that Committee is. . to be. transformed into, a . Royal Commission- we . think you- are unfit’ to act upon it:?” Discontent will. inevitably arise if: some members of the. Committee : are omitted from’ the personnel of the Commis-. sion. If, on- the other : hand,’ the-. Comv mittee-be added to when it is constituted a Royal Commission; the latter body will be’ come-large and unwieldy. I should like to see: some limiting , words attached to this clause, words which. will prevent any Select Corrarrittee -chosen, as; we know- those, bodies are chosen, from being converted into- a Royal . - Commission at. the end of the ses-‘ sion- because, its labours have not: been comv pleted-.
– I can . assure Senator^ Clemons tha-.this clause, if carried,, will make every Government- more careful in the : future about converting: Select Committees into Royal- Commissions. It. is -impossible, in a Bill of this kind, to give directions- to the Governor-Genera! in -connexion with the appointment of Royal CorrrmissKXis. Butv recognising, that what: Senator Clemons:- has stated, is, . tea , certain extent,., obvious, I am sure^that Governments in the future will be extremely careful: about, the: conversion of Select -.Committees into: Royal -Commissions; In, aayi’case,. it. is;: only -.where the- import’ ancevofi, the.- circumstances demands it, that Select ‘.Committees- are . transformed . into Royal.. Commissions, - and, when that course is followed, additions are usually made to its membership: with.- a: view– to: making it balance mare evenly , in the ..direction of a fair inquiry.
Clause agreed to.
Motion (by Senator McGregor) proposeoy…….
That the Senate, do now- adjourn!. ‘
: - It is desirable ‘to correct some misstatements made about the division of Western Australia into Federal electorates.’..’ Stress. has . been laid/by lan-honory able member, jn.. another. . place, . as . well as by the Commissioners, on the supposed decrease in the voting strength in the goldfields district. This was made the excuse for placing nearly 5,000 excess voters on the Kalgoorlie division. I shall show that these prophecies have not only been erroneous, but have been absolutely falsified. I have here the official figures of the enrolment on the nth May, 1912 - that is, figures five months later than those on which the Commissioners based their prophecy of a decrease. These figures show that in several of the mining districts there has been a substantial increase, and not a decrease, in enrolment during those five months. For instance, at the Boulder the voters have increased from 3,251 to 3,591 ; Brown Hill, from 2,304 to 2,416 ; Hannans, 5,489 to 5,494; Menzies, 2,107 to 2,126; and Mount Leonora, 2,649to 2,684. The decreases have been very trifling, but, setting them against the increases, we find the total enrolment to be, on the11th December, 34,299, and, on the nth May, 34,486, or an increase in the Kalgoorlie division of 187. Now, coming to the E, or Dampier, division, which is said to be “ rapidly increasing,” due to agricultural settlement, I find that the enrolment in several agricultural areas has actually decreased. The whole increase, amounting all told to about 400 voters, has actually taken place in the mining district. The figures of the Chief Electoral Officer show that the Senate was absolutely right in sending the report back to the Commissioners for reconsideration, and when the developments take place that we may expect, the voting power will be increased by 5,000, ‘ instead of being decreased as prophesied.
Question resolved in the affirmative.
Senate adjourned at11.10 p.m.
Cite as: Australia, Senate, Debates, 14 August 1912, viewed 22 October 2017, <http://historichansard.net/senate/1912/19120814_SENATE_4_65/>.